Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17216

 1                           Thursday, 19 March 2009

 2                           [Rule 98 bis]

 3                           [Open session]

 4                           [The accused entered court]

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

 6             JUDGE ORIE:  Good morning to everyone.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  Good morning to

 9     everyone in the courtroom.  This is case number IT-06-90-T, The

10     Prosecutor versus Ante Gotovina, et al.

11             JUDGE ORIE:  Thank you, Mr. Registrar.

12             The Chamber would like to inform the parties that it has reached

13     a decision on the request to stay the proceedings.  I already give you

14     the gist of the decision, because the decision on the stay of proceedings

15     request plus an amended Scheduling Order, is to be issued shortly.  That

16     means, most likely today or tomorrow, in writing, given all the details.

17     Nevertheless, it might be of interest to the parties to know already what

18     the decision will amount to.

19             Five additional weeks are granted for investigative and

20     preparatory purposes.  These five weeks can be used after the 98 bis

21     proceedings, which results in the Pre-Defence Conference to be held on

22     the 27th of May, and the Defence case is to start on the 28th of May.

23             As I said before, a decision in writing giving details will be

24     issued shortly.

25             I further would like to inform the parties that tomorrow, Friday,

Page 17217

 1     where we were scheduled to sit in the afternoon that we are now

 2     rescheduled, and I take it that the parties have been consulted on that,

 3     to be rescheduled to sit in the morning hours.

 4             Finally, before I give an opportunity to the Defence to make any

 5     98 bis submissions, I would like to inquire as to the time the parties

 6     will take on the matter.  I think, for the first round the Chamber

 7     granted three hours each, and what I would like no know whether they will

 8     be fully used or not, because from what I understand, but is that there

 9     was an expectation at the Prosecution side, at least that's what I was

10     told, that we might finish before the weekend which I have difficulties

11     to understand, if the parties would take all together the full nine

12     hours.

13             MR. KEHOE:  Mr. President, on behalf of Gotovina Defence, and

14     frankly I haven't consulted with our learned friends, but we will take

15     all three hours this morning.

16             MR. KAY:  Your Honour, we will take our three hours on behalf of

17     Mr. Cermak.

18             MR. KUZMANOVIC:  Your Honour, we will not take the full three

19     hours, but it all really depends on the joint issues that we have between

20     us and what I hear before me, so I will not take the full three.

21             JUDGE ORIE:  Yes, because the full nine hours would certainly

22     take us beyond the weekend; whereas if six full hours and a part of the

23     three hours would be used by you, then it might be that Defence

24     submissions will be finished before the weekend.

25             Could the parties inform me about the sequence.

Page 17218

 1             MR. KEHOE:  The Gotovina Defence will begin today.

 2             JUDGE ORIE:  Yes.

 3             Then I think that the Chamber is ready to hear any submissions

 4     under Rule 98 bis.

 5             MR. KEHOE:  Yes, Mr. President, just before we move into that

 6     and, of course, I have not had the opportunity to examine Your Honour's

 7     decisions on the stay, but just to note the objection on behalf of the

 8     Gotovina with proceeding with the 98 bis prior to the actual resting of

 9     the case by the Prosecution.  I think that that runs contrary to the

10     dictates of 98 bis, and there are several issues outstanding that I think

11     we have all listed before, not the least of which is the certification

12     motion the writ of mandamus issues concerning Mr. Rajcic and numerous bar

13     table submissions.

14             So without going into additional detail, because I haven't seen

15     Your Honours' ruling, I just want to place that objection without moving

16     forward on the record.  And we are prepared to move forward at this time.

17             I would like to turn the floor over at this juncture to

18     Mr. Akhavan for the first portion of our argument.

19             JUDGE ORIE:  Yes, Mr. Akhavan.

20             MR. AKHAVAN:  Thank you, Mr. President, distinguished members of

21     the Tribunal.

22             It is it my privilege to appear before you on behalf of

23     General Ante Gotovina.  This motion seeks the entry of a judgement of

24     acquittal pursuant to Rule 98 bis of the Rules of Procedure and Evidence,

25     in relation to all counts in the amended joint indictment.

Page 17219

 1             It is our submission that the Prosecutor has provided no evidence

 2     capable of supporting a conviction against General Gotovina on any of the

 3     counts in the indictment.  With your permission, Mr. President, I shall

 4     first set forth the applicable standard under Rule 98 bis.  I shall then

 5     set forth a summary of the Prosecution theory, the legal elements of the

 6     crimes and criminal liability as charged in the indictment, and a summary

 7     of our factual argument as to why the evidence does not prove those

 8     elements beyond a reasonable doubt.

 9             Following my pleadings, my colleagues, Mr. Kehoe and Mr. Misetic

10     will elaborate our submissions on the evidence in greater detail.

11             It is settled law that in Rule 98 bis proceedings the applicable

12     test is whether there is evidence, if accepted, upon which a reasonable

13     Tribunal of fact could be satisfied beyond a reasonable doubt of the

14     guilt of the accused on the particular charge in question.  The Rule

15     98 bis jurisprudence identifies four key elements in the evaluation of

16     the evidence.  First, where there is into evidence to sustain a charge,

17     the motion is to be allowed; second, where there is some evidence, but it

18     is such that taken at his highest a Trial Chamber could not convict on

19     it, the motion it to be allowed; third, where there is some evidence but

20     it is such that its strength or weakness depends on the view taken of a

21     witness's credibility and reliability and on one possible view of the

22     facts a Trial Chamber could convict on it, the motion will not be

23     allowed; fourth, if the only relevant evidence when viewed as a whole is

24     so incapable of belief that it would not properly support a conviction

25     even when taken at its highest for at Prosecution, a Rule 98 bis for an

Page 17220

 1     acquittal will succeed.

 2             We recognise the limited scope of a motion for acquittal.  As the

 3     Trial Chamber in Strugar stated, it involves no evaluation of the guilt

 4     of the accused in light of all the evidence in the case to that stage,

 5     nor any evaluation of the respective credit of witnesses, or of the

 6     strength and weakness or contradictory evidence which is then before the

 7     Chamber.

 8             However, in making --

 9             THE INTERPRETER:  The counsel is kindly requested to read very

10     slowly because he did not provided the written text to the interpretation

11     booths.

12             MR. AKHAVAN:  I apologise to the translators.

13             JUDGE ORIE:  Is there any way that you could provide them with

14     the text which would certainly assist them, Mr. Akhavan?

15                           [Defence counsel confer]

16             MR. AKHAVAN:  Mr. President, there may be certain departures from

17     the text which is why I had not provided the translator the text, but I

18     will slow down to ensure that they can translate.

19             JUDGE ORIE:  Yes.  I can tell you that if you depart, if it is

20     not an entire new text that both transcribers and translators, although

21     assisted by the availability of the text, have great skills in

22     immediately following you on any departure as I have experienced several

23     times.

24             Please proceed.  Perhaps whether you'd take the time now or

25     whether there is any electronic version that could be copied outside this

Page 17221

 1     courtroom, I --

 2             MR. AKHAVAN:  I have the version I could give to the Registrar

 3     that's --

 4             JUDGE ORIE:  Then I suggest that it will be copied first so

 5     that -- unless you have four copies.

 6             MR. AKHAVAN:  No.  This is fine.  I can provide this to the

 7     translators.

 8             JUDGE ORIE:  I take it that the Defence will take care, that it

 9     will be copied.  And then -- well, the interpreters and transcriber are

10     put on notice that there might be deviations here and there.

11             THE INTERPRETER:  Microphone, please.

12             MR. AKHAVAN:  We have an electronic version that could be relayed

13     immediately by Mr. Misetic.

14             JUDGE ORIE:  Yes.  I do not know whether that is feasible or not.

15     I leave that in your hands.  I was just thinking about another copy being

16     printed, but there was already an additional hard copy available.

17             I leave the technicalities in your hands.  Please proceed.

18             MR. AKHAVAN:  Thank you, Mr. President.

19             In making its determination, the Trial Chamber must make an

20     evaluation of all the evidence on the trial record.  In particular, as

21     indicated by the Hadzihasanovic decision, ignoring evidence presented in

22     the Defence in its favour during the Prosecution case would amount to an

23     error at law.  Furthermore while Rule 98 bis proceedings will not

24     ordinarily entertain detailed submissions on specific submissions within

25     counts, Trial Chambers have dismissed counts in part, where there is no

Page 17222

 1     evidence in support of distinct aspects of a broad charge.

 2             In the Strugar decision, for instance, in relation to counts of

 3     unlawful shelling of civilian objects, the Chamber dismissed 52 buildings

 4     and structures contested by the Defence on the grounds that the evidence

 5     did not mention or identify the objects or that the evidence did not

 6     establish that the objects were in fact damaged.  This is at paragraph 78

 7     of the Strugar 98 bis decision.

 8             The partial dismissal of charges is consistent with the object

 9     and purpose of Rule 98 bis which is, to quote the Strugar decision:

10             "To separate out and bring to an end those proceedings in respect

11     of a charge for which there is no evidence on which a Trial Chamber could

12     convict.  It is consistent with a fundamental principle of justice that a

13     defendant is under no obligation to answer a case that has not been

14     properly made by the Prosecution."

15             In the present case this principle has particular relevance to

16     the unlawful attack charges against General Gotovina as a distinct

17     actus reus of persecution under the umbrella charge of count 1, which is

18     at the core of the Prosecution's JCE theory, as I shall explain.

19             It has relevance also for the multiple murder charges as part of

20     the Count 1, 6, and 7.  In view of the distinct prohibited acts that

21     constitute the physical elements of persecution, it is our submission

22     that the Chamber may dismiss Count 1 in part, though it is our view that

23     it should be dismissed as a whole.

24             The Prosecution has advanced two theories of liability.  First,

25     it is alleged in paragraph 12 of the indictment that General Gotovina

Page 17223

 1     participated in a category 1 JCE, the common purpose being the permanent

 2     removal of the Serb population from the Krajina region.  The members of

 3     this JCE included the highest authorities of the Croatian state, acting

 4     jointly in furtherance of a criminal policy.  The JCE was allegedly

 5     conceived during a meeting on the island of Brioni on 31 July 1995, and

 6     implemented through Operation Storm during August 4th and 5th, which

 7     consisted allegedly of large-scale indiscriminate artillery attacks

 8     intended to terrorise the Serbian civilian population and to force their

 9     mass exodus, and which allegedly, in fact, resulted in their massive

10     forcible displacement.  In continuation of the same JCE, Operation Storm

11     was allegedly followed by the large-scale destruction and appropriation

12     of Serbian property and other discriminatory measures preventing the

13     displaced population from returning.

14             In addition to these crimes that constitute the purpose of a

15     category 1 JCE, the indictment alleges by way of JCE category 3, that it

16     was foreseeable that the crimes of murder, inhumane acts, and cruel

17     treatment were a possible consequence in the execution of the enterprise.

18     The Prosecution 's alternative theory of liability is that

19     General Gotovina is responsible for crimes committed by his subordinates

20     under the doctrine of command responsibility, under article 7(3).  In

21     particular, while it is not contested by the Prosecution that orders were

22     repeatedly issued to respect humanitarian law and that there was a

23     151 per cent increase in disciplinary measures, and an additionally, that

24     conscripts responsible for crimes were it demobilised, it is still

25     alleged that these did not constitute necessary and reasonable measures

Page 17224

 1     to prevent or punish crimes.

 2             There can be no doubt that allegations of large-scale unlawful

 3     shelling are at the core of the Prosecution theory against

 4     General Gotovina.  In Mr. Tieger's opening statement, at pages 418 and

 5     419 of the transcript, he stated as follows:

 6             "By the time Operation Storm and its accompanying mop-up

 7     operations were over, almost the entire population had been driven out

 8     and the Serb community was a scarred wasteland of destroyed villages and

 9     homes.  By the end of the first day of the operation, the vast majority

10     of Krajina Serbs were in panic stricken flight, not by accident, but by

11     design, through a successfully implemented plan to achieve just that

12     through the shelling of civilian towns and villages.  General Gotovina

13     planned an ordered the artillery operation that was intended to drive the

14     Serb civilians out."

15             Further, at page 443, lines 23 to 24 of the transcript,

16     Mr. Tieger once again confirms the Prosecution theory that, and I quote:

17     "The shelling of Knin and other towns was at the core of the plan to

18     drive Serbs out."

19             Accordingly, if the allegation of large-scale unlawful shelling

20     cannot be sustained by the evidence, the Prosecution's entire JCE theory

21     collapses.

22             As we shall set forth in our pleadings today, after a 14-year

23     exhaustive investigation, the Prosecutor has failed to provide any

24     evidence capable of supporting a conviction on the counts set forth in

25     the indictment.  First, in relation to persecution under Count 1, there

Page 17225

 1     is no evidence whatsoever that Operation Storm was in fact an unlawful

 2     discriminatory attack directed not at military objectives but rather

 3     directed against the Serbian civilian population.  The Prosecution has

 4     not produced conclusive evidence of a single unlawful attack or of a

 5     single civilian death or injury resulting from such an attack,

 6     notwithstanding its burden of proving that unlawful attacks were

 7     committed on a widespread or systematic scale as required by Article 5.

 8             Second, in relation to deportation and forcible transfer under

 9     Counts 1 to 3, because there is no evidence of unlawful attacks against

10     civilians, it follows that there is also no evidence that their

11     displacement resulted from grounds not permitted in international law, as

12     required by Articles 5(d) and (i).  Additionally there is no evidence

13     that the shelling, whether unlawful or not, was in fact the cause of

14     civilian flight.  There is also no evidence that civilians would have

15     stayed had Croatia captured the Krajina by means other than shelling.

16     The evidence of RSK propaganda and evacuation orders only reinforces the

17     conclusion that there is no causal relationship between shelling and

18     civilian flight, as required by Articles 5(d) and (i).

19             Thus it is our respectful submission that there is simply no

20     evidence whether direct or circumstantial to sustain either the

21     Prosecution's core theory of a JCE at Brioni with the intention of

22     terrorising and expelling civilians on discriminatory grounds or to

23     sustain the Prosecution case that the crimes of persecutory unlawful

24     attacks and deportation were in fact committed irrespective of the

25     existence of the JCE.  The evidence simply does not prove either the

Page 17226

 1     mens rea or the actus reus of these core crimes.

 2             Third, in relation to plunder, wanton destruction, and other

 3     discriminatory measures under Counts 1, 4, and 5, without proof of the

 4     Brioni JCE to terrorise and expel civilians and in view of undisputed

 5     evidence of orders ...

 6             JUDE ORIE:  Mr. Akhavan, your speed of speech is still a bit

 7     high, and although with the text, the interpreters and perhaps the

 8     transcriber can catch up, but that's not the way.  You should slow down,

 9     so that we have a direct and firsthand transcription and translation.

10             Please proceed.

11             MR. AKHAVAN:  My apologies to the Chamber and to the translators.

12             And in view of undisputed evidence of orders to maintain law and

13     order, and notwithstanding evidence that destruction and appropriation of

14     Serbian property was the result of lawlessness in the aftermath of

15     Operation Storm, there is no evidence of an additional JCE with the

16     intention of plundering and destroying property and no evidence that

17     General Gotovina made significant contribution to such crimes.

18             Further more, there is no evidence of a policy to acquiesce in

19     such crimes of mob violence as required by Article 5.

20             Fourth, in relation to murder and inhumane and cruel treatment

21     under counts 6 to 9, without evidence of a category 1 JCE, there is no

22     basis to attribute liability to General Gotovina on the basis of a

23     category 3 JCE.

24             Fifth, in relation to liability, for Counts 1 to 5, based on

25     command responsibility under Article 7(3), there is no evidence to

Page 17227

 1     support the Prosecution theory that General Gotovina failed to take

 2     necessary and reasonable measures to prevent or punish crimes committed

 3     by his subordinates.  There is no evidence that beyond repeated orders to

 4     respect humanitarian law, disciplinary measures and demobilization of

 5     conscripts, none of which is contested by the Prosecution, that

 6     General Gotovina had any authority to take additional measures.  In

 7     particular, there is no evidence that General Gotovina was in command and

 8     control of the 72nd Military Police Battalion for the purpose of

 9     conducting criminal investigations.

10             Sixth, in relation to liability for Counts 6 to 9, based on

11     command responsibility, there is no evidence that General Gotovina had

12     any notice that beyond plunder and destruction his subordinates were

13     responsible for murder or inhumane and cruel treatment of civilians.

14             I shall now set forth the legal elements required for each of the

15     crimes and the theories of liability as charged by the Prosecution and a

16     corresponding summary as to why the evidence cannot sustain a conviction.

17     In this regard, it is self-evident that under Rule 98 bis, the burden of

18     the Prosecutor is not only to prove all the mental and physical elements

19     of the crimes charged beyond a reasonable doubt, but also to prove the

20     specific theory of liability set forth in its case in chief.  The Defence

21     must necessarily rely on the Prosecution theory of the case.  It cannot

22     speculate as to hypothetical theories that have not been pleaded in the

23     case in chief.

24             I shall begin by addressing the charge of unlawful attacks on

25     civilians and civilian objects, as a persecutory act under Count 1.  As

Page 17228

 1     mentioned, this is at the core of the Prosecution theory that

 2     General Gotovina participated in the alleged Brioni JCE through

 3     Operation Storm and that this combat operation constituted a large-scale

 4     persecutory unlawful attack against civilians with the intention to

 5     terrorise them into leaving in violation of Article 5(h).

 6             The law on JCE provides that General Gotovina must have shared

 7     the criminal purpose of an unlawful attack and made a significant

 8     contribution to its achievement.  In the words of the Brdjanin appeal

 9     judgement, and I quote from paragraph 431:

10             "Where all the requirements for JCE liability are met beyond a

11     reasonable doubt, the accused has done far more than merely associate

12     with criminal persons.  He has the intent to commit a crime; he has

13     joined with others to achieve this goal; and he has made a significant

14     contribution to the crime's commission."

15             Further more, as the Krajisnik appeals judgement recently

16     confirmed the mens rea for first category JCE is that, and I quote from

17     paragraph 200:

18             "The JCE participants including the accused had a common state of

19     mind; namely, the state of mind that the statutory crimes forming part of

20     the objective should be carried out.

21             In other words, there must be evidence that there was a common

22     criminal purpose to terrorise civilians, specifically through unlawful

23     attacks against civilians and civilian objects and that General Gotovina

24     joined with others to achieve this goal.  The Prosecution contends that

25     this evidence is found in the Brioni transcript.

Page 17229

 1             As my colleague Mr. Kehoe will explain, the portions of the

 2     Brioni transcript that the Prosecution relies on to impute a JCE to

 3     attack Serb civilians when read in context is, at best, highly ambiguous,

 4     if not contrary to the Prosecution theory.  There is simply no direct

 5     evidence of a criminal purpose.  The existence of a JCE must be and is in

 6     fact circumstantially inferred by the Prosecution from the actual conduct

 7     of Operation Storm.  The question, therefore, is what circumstances would

 8     allow for such an inference to be made as a matter of evidence?

 9             In determining what are the conduct of hostilities during

10     Operation Storm constituted a widespread or systematic attack against a

11     civilian population as required by Article 5, the Kunarac appeals

12     judgement has head, and I quote:

13             "The laws of war provide a benchmark against which the Chamber

14     may assess the nature of the attack and the legality of the acts

15     committed in its midst."

16             Thus, if there is no evidence that the combat operations violated

17     the laws of war on a large-scale, a conviction under Article 5 cannot be

18     sustained with respect to Operation Storm.

19             In this regard, we note that during the Rule 72 proceedings on

20     jurisdiction, the Prosecution vigorously argued that the laws of war on

21     conduct of hostilities, the so-called Hague law, do not apply to

22     Article 5 charges.  The Prosecution subsequently added distinct

23     allegations of unlawful attacks as a persecutory act, first, in its

24     pre-trial brief, and subsequently in the amended indictment under

25     Count 1, and has in substance invoked the terms of additional protocol I

Page 17230

 1     of 1977 throughout its case in chief.

 2             As you will be well aware from the landmark Galic case,

 3     Mr. President, the Prosecution in that case submitted and the Trial

 4     Chamber accepted that, and I quote from paragraph 144:

 5             "When considering the general requirements of Article 5, the body

 6     of laws of war plays an important part in the assessment of the legality

 7     of the acts committed in the course of an armed conflict and whether the

 8     population may be said to have been targeted as such."

 9             The Prosecution has alleged that the provisions of protocol I

10     have been violated on a large-scale within the scope of Article 5.  With

11     respect to unlawful attacks against civilians and civilian objects under

12     Count 1, the Galic case provides a useful statement of the applicable

13     laws of war on protection of the civilian population under Article 51 of

14     additional protocol I, that I will now turn to briefly.

15             In that judgement, the Trial Chamber held at paragraph 56 that

16     the crime of attack on civilians requires the following specific

17     elements, and I quote:

18             "First, acts of violence directed against the civilian population

19     or individual civilians not taking direct part in hostilities causing

20     death or serious injury to body or health within civilian population.

21     Second, the offender wilfully made the civilian population or individual

22     civilians not taking direct part in hostilities the object of those acts

23     of violence."

24             The Trial Chamber goes on to state at paragraph 57 that

25     indiscriminate attacks, that is to say, attacks which strike civilians or

Page 17231

 1     civilian objects and military objectives without distinction may qualify

 2     as direct attacks against civilians.  Thus, the mens rea required for the

 3     two categories is closely related.

 4             With respect to the mens rea of a disproportionate attack, the

 5     Trial Chamber held at paragraph 59, that the Prosecution must prove that

 6     the attack was launched wilfully and in knowledge of circumstances giving

 7     rise to the expectation of excessive civilian casualties.

 8             Since the core Prosecution theory is that Operation Storm was

 9     intended to terrorise the civilian population through the unlawful use of

10     artillery, it may also be useful to briefly consider the law applicable

11     to the crime of spreading terror against civilians under Article 51(2) of

12     Protocol I.  Although it has not been charged or referred to by the

13     Prosecution, it provides guidance as to how to assess allegations that

14     Operation Storm was intended to terrorise civilians.

15             In explaining the context of combat operations within which the

16     laws of war are meant to apply, the ICRC commentary to Protocol I at

17     paragraph 1940 points out, and I quote:

18             "There is no doubt that acts of violence related to a state of

19     war almost always give rise to some degree of terror among the population

20     and sometimes also among the armed forces.  It also happens that attacks

21     on armed forces are purposely conducted brutally, in order to intimidate

22     the enemy soldiers and persuade them to surrender.  This is not the sort

23     of terror envisaged here.  This provision is intended to prohibit acts of

24     violence, the primary purpose of which is to spread terror among the

25     civilian population without offering substantial military advantage."

Page 17232

 1             I will not burden the Trial Chamber with a discussion of what

 2     constitutes military advantage, as defined in Article 52(2) of Protocol I

 3     or the long list of what constitutes military objective as articulated

 4     others of the international Red Cross and various national manuals on the

 5     laws of war.  But against the exacting standard that I have just set

 6     forth on proof of what constitutes unlawful attack, what is the evidence

 7     on record that can sustain a conviction that General Gotovina shared a

 8     criminal common purpose to terrorise and deport an entire civilian

 9     population through large-scale unlawful attacks against civilians and

10     civilian objects and that such crimes were in fact committed.

11             With the greatest respect to the Prosecution, we submit that

12     there is nothing in the record, nothing whatsoever, that could either

13     allow for an inference that there was a Brioni JCE to commit unlawful

14     attacks or to prove that such acts ever occurred.  The Prosecution case

15     at its highest proves only that Croatian forces engaged in artillery

16     attacks against Knin and other locations.  Target lists and witness

17     testimony indicate that these locations all contained multiple military

18     objectives.  There is no evidence whatsoever of any attacks directed at

19     civilians.

20             The Prosecution has not submitted a single crater analysis on a

21     weapon fired by the Croatian forces.  Moreover, the Prosecution has not

22     submitted any evidence whatsoever of disproportionate civilian casualties

23     or damage resulting from artillery fire against Knin or any other town in

24     the so-called Krajina.  In fact, it has not even been proven that there

25     was a single civilian death or injury that resulted from an unlawful

Page 17233

 1     attack.

 2             The evidence that, in addition to artillery, multiple-barrel

 3     rocket launchers or MBRLs were used in combat does not prove an unlawful

 4     attack either.  There is it no evidence whatsoever that MBRLs were in

 5     fact not directed or not capable of being directed against specific

 6     military objectives.  And there is no evidence whatsoever, that in fact

 7     they caused unlawful death or injury to civilians or unlawful damage to

 8     civilian objects.  No evidence whatsoever.

 9             It is evidence that in building its case, the Prosecution has

10     applied the wrong standard in alleging unlawful attacks.  In particular,

11     we point to Mr. Russo's question to Marko Rajcic at page 16284 [Realtime

12     transcript read in error "12684"] of the transcript, lines 12 to 14,

13     where he asked the following question, and I quote:

14             "Q.  Were the 130-millimetre guns and 122-millimetre rocket

15     systems, were they capable of being fired at those targets and only

16     hitting those targets and nothing else around them?"

17             This remarkable question assumes that there must be a

18     100 per cent rate of accuracy in the use of weapon systems.  It

19     completely disregards the Protocol I standards that permit incidental

20     casualties and damage, provided that it is not excessive in relation to

21     the military advantage gained.

22             By Mr. Russo's fastidious standards, every combat operation in

23     the world would constitute a war crime, because there is always a margin

24     of error, even for the sophisticated and precise weapon systems of the

25     world's most advanced armies.  Indeed there is considerable evidence that

Page 17234

 1     Operation Storm was in fact executed with exceptional military precision

 2     and effect.

 3             As Mr. Kehoe will explain, the only evidence the Trial Chamber

 4     has been presented on collateral damage from shelling, including UNMO and

 5     UNCIVPOL reports, demonstrates in fact that the damage was minimal for an

 6     operation of this large-scale and that the damage was concentrated around

 7     military objectives.  For example, we refer the Trial Chamber to Exhibits

 8     P64, P228, D66, and D276.

 9             JUDGE ORIE:  Mr. Akhavan, if I may just interrupt you for a

10     second in order to avoid that others have to solve a puzzle at a later

11     stage.

12             Page 17, line 10, I think that the transcription is correct and

13     that you said page 12684, but it should be I think 16284.  So it may have

14     been a -- just a slip of the tongue.

15             Mr. AKHAVAN:  Correct.  It is 16284.

16             JUDGE ORIE:  That is now then put on the record.

17             Please proceed.

18             Mr. AKHAVAN:  We submit that vague or speculative evidence that

19     artillery was fired in what appears from a distance to be a civilian area

20     is not conclusive proof that an attack was unlawful.  You will be well

21     aware, Mr. President, of the exacting evidentiary standards that were

22     applied in this regard in the Galic case, to give but one example.  In

23     that case, the majority concluded that a large-scale unlawful attack was

24     proven based on detailed investigation and testimony of numerous

25     incidents of sniping and shelling.  The judgement refers, for instance,

Page 17235

 1     to evidence that civilians were targeted during funerals, in ambulances,

 2     in hospitals, on trams, on buses, when driving or cycling.  Against this

 3     standard there is no evidence whatsoever of a single unlawful attack, let

 4     alone widespread or systematic attacks, wilfully directed against

 5     civilians.

 6             The Prosecution case, taken at its highest, could not even

 7     satisfy a probable cause test, let alone proof beyond a reasonable doubt.

 8             We submit, therefore, that the charge of unlawful attack against

 9     civilians and civilian objects as an element of persecution under Count 1

10     be dismissed in its entirety.  Furthermore, since this allegation is at

11     the core of the Prosecution's Brioni JCE theory, the entire JCE theory

12     fails.

13             As I shall now explain because the deportation and forcible

14     transfer charges under Counts 1 to 3 depend on proof that Operation Storm

15     was unlawful, they also fail.

16             Based on the standards set forth in the Stakic appeals judgement

17     at paragraph 278:  In order to sustain a conviction on deportation or

18     forcible transfer under Articles 5(d) and (i), the Prosecution must prove

19     beyond a reasonable doubt that the intention underlying Operation Storm

20     was, and I quote:  "The forced displacement of persons by expulsion or

21     other forms of coercion without grounds permitted under international

22     law."

23             Since there is no evidence of an unlawful attack, this charge

24     must also fail.  If there is no unlawful attack, there is no forced

25     displacement without grounds permitted under international law.  If the

Page 17236

 1     flight of civilians from war zones ipso facto constituted deportation,

 2     then lawfully combat would be impossible.  Count 1 in relevant part and

 3     Counts 2 and 3 in whole must be dismissed for this reason alone.  There

 4     are, however, additional reasons why these counts fail.  The Prosecution

 5     has not provided any evidence that civilians in fact fled because of

 6     shelling, whether lawful or not, although this is at the core of its

 7     theory.  To the contrary, the evidence indicates that civilians left

 8     pursuant to RSK evacuation orders.  There is also no evidence that

 9     civilians would have remained had Croatian forces captured Krajina

10     through other means.  Once again, the evidence demonstrates to the

11     contrary, that the RSK propaganda had instilled the view that Serbs could

12     never live under Croatian state.

13             There is yet a further reason in law why a conviction on these

14     counts cannot be sustained.  As the Stakic trial judgement has held at

15     paragraph 674, deportation or forcible transfer is, and I quote:  "The

16     removal of someone from the territory over which the person removing

17     exercises sovereign authority."

18             The Krnojelac trial judgement further confirms that the

19     requirement of occupation under Article 49 of the 4th Geneva Convention

20     of 1949 applies equally to deportation charges under Article 5 of the

21     statute.  I refer the Chamber to the judgement at paragraph 473, which

22     states that the contents of the underlying offence does not defer whether

23     perpetrated as a war crime or as a crime against humanity.

24             It is it our submission, therefore, that the evidence cannot

25     sustain a conviction under Count 1 in relevant part and Counts 2 and 3 as

Page 17237

 1     a whole.  There is no basis for a circumstantial inference of an intent

 2     to deport, and there is in fact no proof of the actus reus of forced

 3     displacement contrary to international law.  The Prosecution case is that

 4     the fundamental purpose of the alleged Brioni JCE is unlawful shelling to

 5     achieve mass expulsion.  Without any proof of these two vital elements,

 6     it is difficult to see how this JCE theory can be salvaged.

 7             The lack of proof that Operation Storm was unlawful also

 8     demonstrates that there is no proof of discriminatory intention which is

 9     required to sustain a conviction on Count 1 as a whole.  Based on the

10     Stakic appeals judgement, the Prosecution must prove beyond a reasonable

11     doubt that General Gotovina acted with the intent to commit the

12     underlying act and the intent to discriminate on political, racial, or

13     religious grounds.  The Appeals Chamber has further specified at

14     paragraph 737 that discriminatory intent, the discriminatory intent

15     requirement amounts to a dolus specialis.  This is it the highest degree

16     of mens rea in international criminal law.  The Kupreskic trial judgment

17     notes at paragraph 636 that the mens rea requirement for persecution is

18     higher than for ordinary crimes against humanity.  And at paragraph 751,

19     that persecution is only one step away from genocide.  This exacting

20     mental element means that beyond mere knowledge of a discriminatory

21     policy, the Prosecution must prove beyond a reasonable doubt that General

22     Gotovina had the conscious desire to discriminate against Serb civilians,

23     merely because of their ethnicity.  The Stakic appeals judgement makes it

24     clear at paragraph 329 that:

25             "This discriminatory intent can be neither presumed nor

Page 17238

 1     transferred from the direct perpetrators.  Therefore, it is immaterial

 2     for the assessment of the intent of the indirect perpetrator, whether or

 3     not the actor had such a discriminatory intent."

 4             It is not sufficient to argue, as the Prosecution did at some

 5     length, that because President Tudjman allegedly had discriminatory

 6     intention, that General Gotovina also acted with the same special

 7     intention.  There is no evidence on record whatsoever that proofs

 8     discriminatory intention on the part of General Gotovina and for that

 9     reason, a conviction for the charge of persecution cannot be sustained,

10     and Count 1 should be dismissed as a whole.

11             Since there is no evidence to support the Prosecution core theory

12     of a JCE, the Prosecution must prove beyond a reasonable doubt with

13     respect to plunder and wanton destruction that there is was a specific

14     JCE in relation to Counts 4 and 5, and Count 1 in relevant part, to

15     commit those specific acts.  There is no evidence that a plan of

16     systematic burning or looting was ever complicated at Brioni.  As

17     Mr. Kehoe will describe, the Prosecution does not contest that there was

18     series of high level meetings prior to Operation Storm, at which the most

19     senior Croatian state officials made a plan to maintain law and order in

20     Krajina post-liberation and issued orders to the military and civilian

21     police consistent with this objective.  In particular, as Mr. Misetic

22     will explain, it is not in dispute that General Gotovina issued attack

23     orders requiring compliance with the Geneva Conventions, that he issued

24     additional orders requiring maximum respect in the treatment of

25     civilians, and as admitted by Prosecution expert Theunens, there was a

Page 17239

 1     151 per cent increase in disciplinary actions within the Split Military

 2     District at the relevant time.  It is also not contested that

 3     General Gotovina demobilised undisciplined conscripts and that he did not

 4     receive reports after August 18th that these measures not been effective

 5     with respect to his subordinates.

 6             The Prosecution case is merely that the Croatian state and

 7     General Gotovina did not take adequate measures and thereby infers a

 8     discriminatory policy to acquiesce in such crimes against civilian

 9     property.  While there is no legal requirement of a policy, the Kupreskic

10     trial judgment indicates at paragraph 552 that need for crimes against

11     humanity to have been at least tolerated by a state, government, or

12     entity is stressed in national and international case law.  Article 72(A)

13     of the ICC statute in fact requires that the acts be committed pursuant

14     to or in furtherance of a state or organisational policy.  At the very

15     least, the mere fact that crimes are numerous does not qualify as crimes

16     against humanity, if there is no proof of a policy of acquiescence.  In

17     particular, mob violence in the context of what several witnesses

18     described as lawlessness in the Krajina does not meet either the high

19     threshold or the object and purpose of Article 5.

20             The Tadic trial judgement at paragraph 653 explained that the

21     reason why crimes against humanity so shock the conscience is because

22     they are not isolated random acts of individuals.  The cumulative

23     commission of isolated or random crimes by individuals or small groups,

24     thus, is not a crime against humanity.  The Prosecution case at its

25     highest proofs that the Croatian state should have tried harder.  That it

Page 17240

 1     should have allocated more resources to prevent crimes, as tens of

 2     thousands of displaced persons returned to their homes in this vast and

 3     remote region.  There is no evidence, however, as to whether such

 4     resources were in fact available.  At best, the Prosecution has made the

 5     case that Croatia, as with NATO forces in Kosovo, may have been negligent

 6     in planning the post-combat requirements of maintaining law and order.

 7     It has not proved that there was a deliberate policy of acquiescence as

 8     required by Article 5.

 9             In this respect, the Prosecution cannot simply allege that there

10     was at Brioni a joint criminal enterprise to commit burning and looting.

11     The Krajisnik appeals judgement has recently held that there cannot be a

12     fluid JCE concept such that beyond the original crimes envisaged

13     allegedly at Brioni that expanded crimes can be attributed to the

14     defendant without additional evidence.  The Prosecution cannot merely

15     allegation that there was a broad JCE to commit ethnic cleansing and that

16     the crimes irresistibly evolved from unlawful shelling to burning and

17     looting.  The Prosecution must provide specific evidence as required by

18     the Krajisnik appeals judgement, as to whether the JCE members did

19     nothing to prevent the recurrence and persisted in the implementation of

20     this expansion of the common objective and evidence.  And furthermore,

21     there must be specific evidence as to when the expanded crimes became

22     incorporated into the common objective.  That's at paragraph 171.

23             Since there is no evidence of a JCE to terrorise and expel the

24     Serbian civilian population through unlawful shelling, and since there is

25     also no evidence of a specific or additional JCE to plunder and destroy

Page 17241

 1     Serbian property, the JCE theory, as a whole, cannot be sustained,

 2     including with respect to relevant parts of Count 1 and Counts 4 and 5 as

 3     a whole.  Furthermore, since a category 1 JCE has not been proven beyond

 4     a reasonable doubt, there can be no category 3 liability with respect to

 5     murder and inhumane and cruel treatment under Counts 6 to 9.  We submit,

 6     therefore, that all of the Counts in the indictment be dismissed to the

 7     extent that they are based on JCE liability.

 8             Finally, Mr. President, I shall discuss the only remaining basis

 9     for liability, which is command responsibility under Article 7(3).

10             As set forth previously and as Mr. Misetic will explain in

11     greater detail, General Gotovina took a number of disciplinary and

12     preventative measures.  The Prosecution theory under Article 7(3) rests

13     essentially on the allegation that these measures did not constitute

14     necessary and reasonable measures to prevent or punish crimes, that

15     General Gotovina should have tried harder.

16             The Prosecution pre-trial brief at paragraph 67 specifically

17     alleges that necessary and reasonable measures that could have been taken

18     by Gotovina include investigating the allegation using military police,

19     notifying appropriate military and civilian prosecution authorities, and

20     imposing immediately disciplinary measures or disciplinary sentences on

21     suspected subordinates to prevent further crimes.

22             As my colleague Mr. Misetic will explain, beyond these

23     allegations the Prosecution has not provided any evidence as to what

24     constitutes necessary and reasonable measures for an operational

25     commander with General Gotovina's responsibilities.  And as the

Page 17242

 1     Prosecution admits in the pre-trial brief, General Gotovina was in charge

 2     of 130.000 soldiers during Operation Storm.

 3             We also note that the Prosecution chose not to call

 4     Andrew Pringle who was listed as the Prosecution expert witness on

 5     command responsibility.

 6             The Halilovic trial judgement indicates that whether necessary

 7     and reasonable measures are in fact taken is determined by -- had this is

 8     at paragraph 74 whether specific orders prohibiting or stopping the

 9     criminal activities were issued, what measures to secure the

10     implementation of these orders were taken, what other measures were taken

11     to ensure that the unlawful acts were interrupted, and after the

12     commission of the crime what steps were taken to secure an adequate

13     investigation and to bring the perpetrators to justice.  The Prosecution

14     does not deny that General Gotovina issued orders and took disciplinary

15     measures.  Instead, it focuses on the failure to investigate crimes.  In

16     this respect, the Hadzihasanovic trial judgement indicates at

17     paragraph 1061 that:  "Referring the matter to the appropriate military

18     judicial authority is a necessary and reasonable measure, where a

19     commander is unable to carry out his own criminal investigation."

20             As Mr. Misetic will explain, there is no evidence that General

21     Gotovina failed to refer crimes to the military police.  There is no

22     evidence that criminal investigation was in fact within the competence of

23     General Gotovina.  The Blaskic appeals judgement indicates, at

24     paragraph 72 that:  "... necessary and reasonable measures are such that

25     can be taken within the competence of a commander, as evidenced by the

Page 17243

 1     degree of effective control he wielded over his subordinates."

 2             In this respect, the Prosecution evidence, taken at its highest,

 3     merely proves that General Gotovina had general rights of intervention

 4     with respect to the military police.  The Halilovic appeals judgement

 5     expressly states that this is it not a sufficient basis for attribution

 6     of command responsibility.  In that case, the Appeals Chamber citing the

 7     famous high command case before the United States Military Tribunal, held

 8     as follows - this is at paragraph 212:

 9             "As a commander in chief of an army group, the duties imposed

10     upon Field Marshal von Leeb were exclusively operational, and his

11     headquarters and staff were strictly operational in their functions.

12     Therefore, his authority in the field of executive power was more in the

13     nature of a right to intervene than a direct responsibility."

14             The Military Tribunal found that under the circumstances of the

15     case, it was not considered that criminal responsibility attached to him

16     merely on the theory of subordination and overall command.

17             Considering the acquittal in this regard of Field Marshal

18     von Leeb in the high command case, despite the evidence of massive

19     atrocities of Nazi forces in occupied territories, it would be

20     inconceivable to hold General Gotovina liable under Article 7(3) merely

21     because he allegedly had general rights of intervention with respect to

22     the military police.  We submit, therefore, that there is no evidence

23     that could sustain a conviction based on Article 7(3) and, therefore,

24     that all Counts should be dismissed by the Trial Chamber.

25             In summary, Mr. President, distinguished members of the

Page 17244

 1     Trial Chamber, the Prosecutor has failed to present proof beyond a

 2     reasonable doubt of General Gotovina's criminal liability on any of the

 3     counts in the joinder indictment.  Accordingly, we respectfully request

 4     this Trial Chamber to enter a judgement of acquittal on all Counts.

 5             That concludes my submissions.  I thank you for your attention

 6     and ask the Chamber to give the floor to my colleague Mr. Kehoe.

 7             JUDGE ORIE:  Thank you, Mr. Akhavan.

 8             Mr. Kehoe, looking at the clock would you prefer to make a start

 9     and then have a break after some 12 to 15 minutes, or would you rather

10     have an early break so that we would then resume at a quarter to 11.00?

11             MR. KEHOE:  I'm at Your Honour's disposal.

12             JUDGE ORIE:  Yes, but I'm asking -- [Overlapping speakers] ...

13             MR. KEHOE:  I can -- we can take a break now and just start then.

14     That might be a bit easier.

15             JUDGE ORIE:  Yes.  Then we will have a break, and we will resume

16     at a quarter to 11.00.

17                           --- Recess taken at 10.19 a.m.

18                           --- On resuming at 10.49 a.m.

19             JUDGE ORIE:  Mr. Kehoe.

20             MR. KEHOE:  Yes, Mr. President.  Thank you.  And Your Honours,

21     good morning.

22             I would like to continue to expand on the discussion as presented

23     by Mr. Akhavan, directing my comments for the most part to the JCE

24     allegations.

25             In substance, again as outlined by Mr. Akhavan, the JCE

Page 17245

 1     allegation involving General Gotovina is that there was a plan to drive

 2     the Serb civilian population out of the Krajina, that that plan was

 3     concretized at the meeting in Brioni, that General Gotovina shared in

 4     this criminal purpose, and that his significant contribution came through

 5     the use of artillery during Operation Storm.

 6             I will attempt to lay out the evidence in this fashion without

 7     commenting, of course, on credibility, et cetera, Your Honour as I know

 8     is not proper, and trying to look at the evidence from the Prosecution

 9     but in all -- all of the evidence.  And in doing so, one must reflect on

10     the whole body of evidence that the Prosecution has made this allegation

11     concerning the JCE, and face -- in the face of several salient facts; the

12     first, of course, being that the liberation of the Krajina had been

13     planned by Croatian forces for years.  The second was that the plan and

14     use of artillery and rockets on military objectives in Knin and other

15     cities in the -- in the Krajina had been planned well prior to the Brioni

16     meeting.  Next, that the Serb population began to leave the Krajina prior

17     to Operation Storm.  Also, that in parallel to the planning of

18     Operation Storm, Croatian ministries were preparing for the peaceful

19     reintegration of the Krajina and the restoration of law and order.

20     Lastly, that the shelling was done in support of a military offensive and

21     we will discuss these points.  That there was no extensive loss of life

22     and damage to civilian structures in Knin or other locales, as a result

23     of this shelling on 4th and 5th of August.

24             During its opening statement and its pre-trial brief, the

25     Prosecution has stressed the importance of the Brioni meeting and what

Page 17246

 1     was discussed.  I think -- I submit to the Chamber that it's important

 2     before we look at those comments as a -- as pointed out by the

 3     Prosecution that we look at the context of Brioni in line with all of the

 4     evidence that is before the Chamber.  What we know is that prior to

 5     Brioni, that there was a plan to re-take the Krajina, and that the plan

 6     for use of artillery against Knin and other locales, with specific target

 7     it's listed, dated back to at least 1993.  We take that from

 8     Marko Rajic's statement, D1425, at paragraph 50.

 9             What else do we know?  We know that as we move further towards

10     the July 31st date, we need to focus on the directive from the HV staff

11     of the 26th of June of 1995, and that is D956.  And what do we learn from

12     that directive, more than a month prior to Brioni?  What we learn is that

13     the Main Staff directed General Gotovina and the other -- district level

14     commanders that they were to use artillery and rockets against Knin and

15     Benkovac and other locales.  And if you are looking at the English of

16     that particular document, it is on page 5.

17             They also note in page 6 of D956, under heading 7, artillery and

18     rocket support, that the support should focus on neutralizing the

19     Republika Srpska army Main Staff, 7 Corps command post in Knin, the

20     brigade command post, concentrations of enemy manpower, et cetera, and

21     the last sentence, preventing an enemy counterattack from the direction

22     of Knin, Kastel Zegarski, and Benkovac.

23             We also know that after the Brioni meeting there was a visit from

24     Ambassador Galbraith to President Tudjman, and we can reference that on

25     trial transcript 4928, line 13, through 4929, line 2.  In that

Page 17247

 1     conversation, inter alia, Ambassador Galbraith states to

 2     President Tudjman that the Serb population will have to be protected,

 3     that prisoners of war will be treated well -- well treated, excuse me,

 4     that any atrocities would affect US/Croat relations and that the safety

 5     of the UN peacekeepers was paramount.

 6             On that same date, again from Marko Rajcic, at D425 at

 7     paragraph 9, in a meeting with General Gotovina, General Gotovina

 8     emphasised that the purpose of this endeavour was to obtain a military

 9     victory and the operation was aimed only against the enemy soldiers.

10             Now, one would expect that if there was there significant meeting

11     taking place on the 31st of July at Brioni, that there would be in fact

12     dramatic changes in orders given by Military District commanders, such as

13     General Gotovina, in furtherance of the shelling of the civilian

14     population, to drive the civilian population out of Knin.  What we see is

15     something, of course, quite different.  And I direct Your Honour's

16     attention to a document that I'm sure Your Honours have seen many times

17     and probably tire of, P1125, which is the Kozjak order of 2 August 1995.

18     There were in fact two additional cities that were due to be attacked and

19     two additional from the first order of the 26th of June that came from

20     the Main Staff, those two cities being Obrovac and Gracac.  But now,

21     significantly, the first city on that list is Drvar.  Drvar is to be put

22     under artillery fire as the other towns are.  What is the significance of

23     Drvar?  Drvar is a town that is in Bosnia-Herzegovina, not in the Krajina

24     or in the Republic of Croatia.  And why was that done?  What was the

25     military purpose?  Of course, there was a military purpose because the

Page 17248

 1     Bosnian Serb army, the VRS was located in that area and, of course,

 2     General Gotovina had to protect his flank as they moved into the Knin

 3     area and the rest of the Krajina.

 4             One would also expect that if this was an artillery operation

 5     directed against the civilian population, that it would be a significant

 6     bombardment of the civilian population with as much artillery as the HV

 7     could muster.  Unfortunately, the facts counter that.  While the initial

 8     order coming from the Main Staff on the 26th of June allowed for six

 9     combat sets, the order presented on the 2nd of August by General Gotovina

10     reduced that allotment to in fact four combat sets.  So on the heels of

11     Operation Storm, in fact, General Gotovina ordered that less -- excuse

12     me, on the heels of Brioni and prior to Operation Storm, General Gotovina

13     ordered that less artillery be used.

14             Now, the Prosecution has argued in their pre-trial brief, opening

15     statement, and certainly through the evidence that there is -- there was

16     this agreement in Brioni to expel the Serbs from Krajina, and in the case

17     of General Gotovina, through the use of artillery.  Now let us look, if

18     we may, at the references that have been presented to the Chamber by the

19     Office of the Prosecutor to support that position.  Because after the

20     entire Prosecutor's case, those references are quite revealing.

21             The first one is presented by Mr. Tieger on page 425 of the

22     transcript.  This is lines 9 through 11, Mr. Tieger highlighted these

23     comments by General Gotovina:  "If there is an order to strike at Knin,

24     we will destroy it in its entirety in a few hours."

25             Now what was the significance of that reference?  It becomes, in

Page 17249

 1     juncture, somewhat perplexing because of course we know that Knin wasn't

 2     destroyed.  And in fact on page 444 of the transcript, the Prosecutor

 3     acknowledges as much on lines 13 and 14.

 4             The next highlighted portion was on page 426, lines 20 to 24.

 5     And there is some disagreement, Mr. President and Your Honours,

 6     concerning a translation about this particular comment, and the Defence

 7     has offered a different translation, minor, in D960.  He notes quoting

 8     General Gotovina according to the Prosecutor's transcript:

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

10     Knin systematically without aiming at the barracks in which UNCRO is

11     located."

12             And it said, "the moment all of our weapons are guided, directly

13     guided."  Our translation that we submitted is a tad different.  It notes

14     that, "at this moment we can engage in extremely precise operations in a

15     planned manner without aiming at the barracks in which UNCRO is located."

16             Suffice it to say, that under either translation, we are talking

17     about the careful, precise, and planned use of artillery.  We also know,

18     to contextualise this reference is that in that same document, P461, in

19     pages 21 to 22, General Zagorec who was the logistics officer at this

20     meeting expressed concern about their ammunition levels.  And he notes:

21             "I am now only interested in this.  And I urge all commanders to

22     take into account the amount of ammunition expended in these operations.

23     We have reserves for some five days."

24             So looking at these comments, we have an assessment from the

25     chief of logistics, that there is limited ammunition with the comment by

Page 17250

 1     General Gotovina that the artillery fire can be careful, precise, and in

 2     a planned manner.

 3             The last comment referencing General Gotovina by the Prosecutor

 4     came on page 426 -- excuse me, page 426 of the Prosecutor's opening.  And

 5     it was cited in this fashion - now, mind you, this is it comment on the

 6     31st of July, 1995, Pre-storm.  In lines 4, "that means if we continue

 7     this pressure, probably for some time to come, there won't be so many

 8     civilians, just those who have to stay, who have no possibility of

 9     leaving."

10             Now, the Prosecutor has opined that this refers to artillery.

11     But let us harken back to one very significant point at this juncture and

12     that is prior to the 4th of August, 1995 the HV never shelled Knin and

13     never shelled the -- most of the other cities that have been brought

14     before this Chamber.  I do believe there was some testimony that there

15     was some intermittent shelling in Benkovac in 1993 and 1994, but clearly

16     the evidence is that Knin had never bee so shelled.  So given the fact

17     that prior to 31st July there had been no shelling, and that we had seen

18     significant HV advances in winter 1994 jump one and jump 2 in June 1995,

19     and the takeover of Glamoc and Bosanski Grahovo in July of 1995, ending

20     in approximately the 28th of July, clearly this is the pressure to which

21     the parties are alluding, not pressure coming from artillery that had yet

22     to take place.

23             Lastly, the comment that the Serbs would be leaving in reference

24     to, there won't be so many civilians, it was well recognised, number one,

25     that the Serb population certainly after the fall of Bosansko Grahovo and

Page 17251

 1     Glamoc had been leaving.  But, number two, from the Prosecutor's own

 2     witness Ambassador Peter Galbraith that should sectors north and south

 3     fall that the Krajina Serbs would leave.  I refer Your Honours to

 4     Ambassador Galbraith's diary that the Prosecutor put into evidence, P459.

 5     And I quote by Ambassador Galbraith:  "If Croatia took the territory,"

 6     and contextually he is referring to Sectors North and South, "the Krajina

 7     Serbs would leave.  They could be resettled in Sector East, thus

 8     threatening Milosevic's claim to territory that he very much wants for

 9     Greater Serbia."

10             Well, if that doesn't prove anything, if that doesn't prove

11     anything -- by the way I just reminded, that entry by

12     Ambassador Galbraith was on June 15th of 1995.

13             Let us turn to -- if that doesn't establish anything, let's turn

14     to the comments by President Tudjman that have also been cited by the

15     Prosecution.  And frankly, when we look at the first one, even the

16     Prosecutor, at page 424, noted that the comments by President Tudjman

17     were somewhat ambiguous.

18             This is in the transcript, at pages 423 and 424, it's a quoting

19     of President Tudjman, starting on line 3:

20             "In which way do we resolve it?  That is the subject of our

21     discussion today.  We have to inflict such blows that the Serbs will, to

22     all practical purposes, disappear, that is to say, the areas that we do

23     not take at once must be -- must capitulate within a few days.  Therefore

24     our main task is not Bihac, but to inflict such blows in several

25     directions that the Serbian forces will no longer be able to recover but

Page 17252

 1     will have to capitulate."

 2             Now, quite clearly, from the words of President Tudjman he is

 3     referring to an attack to defeat the Serbian forces.  Plain and simple.

 4             The next comment often used by the Prosecutor is again a comment

 5     by President Tudjman at page 424 and 425, and I am giving the full

 6     context, not reading all of it.  But his comments are instructive at the

 7     beginning, where he says:

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

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

10     undertake a general offensive in the ... area, even grater panic will

11     break out in Knin than has to date."

12             Even greater panic.  Quite clearly the reference is panic that is

13     existing in Knin on the 31st of July that came as a result of the

14     offensive operations of the HV throughout the summer, or actually going

15     back to the winter of 1994, and the summer of 1995.

16             Now, certainly if you go back to the comments made by my learned

17     friend, Mr. Akhavan, will there be additional panic as a result of

18     another military offensive?  Of course.  I don't think anybody would

19     dispute that.

20             But the reference is not panic because of the use of artillery.

21     The reference is because of the overall situation.  So let us look at

22     these comments and let's look at this Brioni transcript as the basis for

23     this JCE meeting of the minds.  Quite clearly, looking at this in

24     isolation -- at this meeting, there was no meeting; there was no

25     agreement; there was no agreement to participate in some time of criminal

Page 17253

 1     endeavour.  There was no proof, based on this agreement, that the

 2     Prosecutor has put so much stock in that there was in fact a JCE.

 3             The Prosecutor says, well, let's look at the actual conduct of

 4     the operations.  Let's look at how Operation Storm unfolded, because

 5     certainly from that we can extrapolate an intent to participate in this

 6     JCE, wherever it was formed which is now somewhat amorphous and

 7     problematic vis-a-vis Krajisnik.  But nevertheless, let us take this

 8     endeavour and look at this matter in a light most favourable to the

 9     Prosecutor because I believe that even under those circumstances, I

10     submit to the Chamber that there is no evidence of a JCE; there's no

11     evidence of an any significant participation in any alleged JCE, because

12     the attack on the Krajina on the 4th and the 5th of August, 1995, was

13     legal from the beginning to the end and lawful.  Let's look at some of

14     the issues raised by the Prosecutor because at this juncture, Mr.

15     President, Your Honours, Your Honours has to look at the full body of

16     evidence and at the Prosecutor's case, and we acknowledge that.

17             One document that they have put a tremendous amount of stock in

18     is the Kozjak order.  Again I reference that, P1124, page 14, where they

19     have quoted on numerous occasions putting the towns of Drvar, Knin,

20     Benkovac, Obrovac, and Gracac under artillery fire.  What does that

21     establish?  Well, again, we have to contextualise the entire sentence in

22     many fashions, not only looking at the document itself and that

23     paragraph in toto but also now contextualise it with the rest of the

24     evidence, i.e., the individual who wrote it, being Marko Rajcic, an

25     individual who came before the Court.

Page 17254

 1             Quite clearly when we look at this document it has the commander

 2     as intent as a preface, and I quote:

 3             "Tasks of artillery rocket groups, groups and organised TS and

 4     TRS-2 along many attack axes focus on providing artillery support to the

 5     main forces in the offensive operation through powerful strikes against

 6     the enemy front line command posts, communications, centres, artillery

 7     firing positions, and also the other towns that we just referenced.

 8             When Mr. Rajcic was brought before the Chamber, he was not asked

 9     about that particular portion of the document, so the Gotovina Defence

10     asked.  And I turn to put this entire matter in context, and I reference

11     page 16535, line 7, through 16536, line 6.  And I will focus first on

12     lines 19 to 23 of 16535.  And he was asked, after stating that he in fact

13     wrote this portion of the order:

14             "Q.  Was the intend of this line in the order to fire at

15     pre-planned military objectives; or was it to just to fire

16     indiscriminately throughout the town?  What was it?

17             "A.  I never heard nor ever issued an order to the effect to

18     execute indiscriminate fire."

19             Paragraph 24 -- excuse me.  Line 24 on 16535:

20             "The other part of my question was, so was the intent of this

21     order to fire on pre-planned military objectives that you -- that you had

22     discussed and planned prior to ... Storm.

23             "I'm sorry, I apologise.  It was always implied, understood as

24     far as I was concerned.  In other words, it was mandatory for me that

25     exclusively and only a target, a target with specific coordinates.  I

Page 17255

 1     always maintain that is so, and that this is understood.  And that is why

 2     I do not always explain ... at length."

 3             Interestingly, this particular language that is set forth in the

 4     Kozjak order and then in Mr. Rajcic's actually artillery attachment to

 5     1125 doesn't contain this language.  And only went out -- to a relatively

 6     few group of people.  But what do we get from this language that the

 7     Prosecutor has put so much stock in?  Number one, there is it nothing

 8     about targeting civilians; number two, there is nothing about targeting

 9     in a way to create panic with the civilian population; and number three,

10     there's nothing about expending scarce military resources on non-military

11     targets.  Frankly, it is to the contrary.

12             But the Prosecutor has also presented the argument that the

13     attack on the 4th and 5th of August was in fact directed against the

14     civilian population.  That these conductive hostilities constituted a

15     widespread and systematic attack against the civilian population.  As

16     Your Honours know, and Your Honour, I appreciate your background in the

17     Galic case, the determination of a violation under Article 5 has to be

18     dictated by the laws of war and whether or not the accused violated the

19     laws of war under Article 3 as a subset to Article 5.

20             There has not been any evidence presented by the Prosecution that

21     there was a single unlawful attack that took place in Operation Storm,

22     let alone a widespread and systematic attack on the civilian population.

23     Not a single unlawful attack.  And I'm not here to say, Mr. President,

24     Your Honours, that during the course of this combat that rounds might

25     have gone into a civilian locale.  That does not make a widespread and

Page 17256

 1     systematic attack on the civilian population.

 2             What we do know and that the Prosecution has been unable to

 3     overcome is that this attack was in compliance with Article 51 of

 4     Protocol I.  There is no evidence that the civilian population was made

 5     the object of the attack.  To the contrary.  The evidence that has been

 6     presented to this Chamber during the Prosecution's case is that the

 7     civilians were not targeted, and that when the HV was planning the

 8     artillery operation, that the HV attempted to minimise civilian

 9     casualties.  Where do we find that?  Most easily we find that in the

10     statement of Mr. Rajcic at D1425, paragraph 17.

11             One could make a case, Mr. President, Your Honours, of an attack

12     where the object is the civilian population if one had evidence such as a

13     crater analysis as we saw -- I know Your Honour saw quite routinely in

14     Galic.  No such crater analysis took place.  We have one crater analysis

15     that the Prosecutor has presented through Mr. Anttila, and that's at

16     transcript page 2686, line 19, and through 2689, line 9.  But quite

17     clearly it appears that the expended round that they took was in fact a

18     Serbian round.  And Your Honours can review this yet further in the

19     exhibits we presented, D80, D81, D82, D166, and D167.

20             But let's assume for the sake of argument here that the round or

21     the shell casing that was found by Mr. Anttila was in fact fired by the

22     HV, as opposed to the Serbian forces.  That single event does not prove

23     or establish in any way that the civilian population was the object of

24     this attack.

25             The next argument that has been presented by the Prosecution, and

Page 17257

 1     this came through Colonel Konings and Mr. Rajcic, was the actual

 2     challenge to the weapon systems that were employed.  And we have heard a

 3     lot of evidence about this, and if we just address ourselves to the

 4     weapon systems that we used against Knin, we're talking about T130s and

 5     122-millimetre multi-barrel rocket launchers.  And the argument seems to

 6     go that these weapons, especially the multi-barrel rocket launchers, are

 7     incapable of distinguishing between military and civilian targets.  Well,

 8     I submit to Your Honours that that is not what is contemplated by the

 9     principle of distinction as set forth in Article 51.  What is -- what is

10     contemplated by Article 51's principle of distinction is the use of

11     things such as chemical weapon or incendiary devices.  Or for that

12     matter, if we can get something that we may know quite an about, SCUD

13     missiles that were fired by the Iraqis that had a margin of error of

14     approximately 6 to 10 kilometres, not a weapon system such as employed

15     during Operation Storm.  My learned colleague Mr. Akhavan addressed the

16     comment made by Mr. Russo concerning whether or not these weapon systems

17     it be the T130 or a multi-barrel rocket launcher can be fired with the

18     guarantee that it would hit this target and nothing else.

19             At the risk of moving towards hyperbole, Mr. President,

20     Your Honours, a handgun doesn't have that type of accuracy.  Certainly

21     over any given distance, it simply does not; it breaks down.  And there

22     is no prohibition in international law such as with incendiary and

23     chemical weapons, there is no prohibition in international law or

24     customary law from using these types of weapons systems.

25             Now the question presents itself, can these weapons systems be

Page 17258

 1     directed at military objectives as required by Article 51?  Well, we know

 2     from the initial directive coming on the 26th of June, 1995, that the HV

 3     Main Staff concluded that they could.  And we know from Mr. Rajcic's

 4     statement, again paragraph 16, at D1425, that these weapons were chosen

 5     because they were capable of being directed and hitting military

 6     objectives.

 7             But more importantly, the Prosecutor's expert Lieutenant Konings

 8     at page 14758, lines 11 through 15, testified that these weapons could be

 9     directed against military targets.  And that being the case, the use of

10     this weaponry does not violate the principle of distinction .

11             Now, the other possible way armies, military forces can violate

12     Article 51 certainly is the proportionality equation when looking at the,

13     if we can just quote it quite quickly, in Article 51, the subdivision

14     5(B) the attack may be expected to cause incidental loss of life, injury

15     to civilians, damage to civilian objects, or a combination thereof, which

16     would be excessive in relation to the concrete and direct military

17     advantage anticipated.

18             Now let us look at this item or this aspect of the law vis-a-vis

19     the evidence.

20             What we know from Mr. Rajcic's testimony is that the attack on

21     the locales in Knin offered a significant military advantage to the HV by

22     knocking out the headquarters, knocking out communications, neutralizing

23     the 7th Krajina Corps or Knin Corps, excuse me, and in doing so, not only

24     bringing an end to the war in Sector South but also bringing an end to

25     Operation Storm and Sector North, an effort that was remarkably

Page 17259

 1     successful and brought about a quick capitulation by the ARSK.

 2             In looking at the proportionality equation, and I understand,

 3     Mr. President, Your Honours, that we are looking after the fact, and that

 4     in the instance of following the laws of war, you look at it from the

 5     standpoint of the reasonable commander.  Nevertheless, the fallout from

 6     such a campaign is instructive in determining whether or not this

 7     particular commander, in this instance, General Gotovina, failed in his

 8     obligations to assess the proportional damage in light of the -- of the

 9     military advantage.

10             What we know from the evidence is that there was no

11     disproportionate damage.  We know that there was no disproportionate

12     damage from any specific weapon against any specific target.  How do we

13     know that?  We need only look at the assessments referred to by

14     Mr. Akhavan, by UN, UNCIVPOL, and a multitude of other individuals who

15     were there that are reflected in P64, P228, D66, and D276.

16             Again, when we are looking at proportionality there, it is

17     important to assess exactly what civilians and civilian structures were

18     damaged.  And again we have no crater analysis performed on the artillery

19     -- on the artillery that had been fired into Knin on the 4th and the 5th.

20     Equally important is to assess not only damage to structures but more

21     importantly injuries to civilians.  How many civilians died as a result

22     of this alleged disproportionate attack?  The Prosecutor has been able to

23     establish one.  Dr. Clark could only conclude that there was one civilian

24     casualty in Knin consistent with blast injuries, and he couldn't

25     determine if that was a mine, if that was a hand-grenade, if that was an

Page 17260

 1     MRL, a T-130.  He simply couldn't tell.

 2             Equally important, another Prosecution witness

 3     Professor Puhovski, and this is at transcript 15971 through 15972, was

 4     unable to confirm the excessive civilian casualties as a result of

 5     artillery.

 6             So what do we have?  We have the proper use of weaponry,

 7     concentrated on military targets, minimal damage to civilian structures,

 8     and one dead civilian, as a result of blast injuries which can't be

 9     directly connected to Operation Storm.  Based on an analysis of the

10     evidence, quite clearly, there has been no -- this -- this attack had no

11     disproportionate consequences given the military advantages gained by

12     taking the military headquarters, by taking -- by neutralizing

13     communication facilities, and by bringing about the expeditious

14     capitulation by RSK forces.

15             We submit to Your Honours, clearly that under the persecution

16     count, the unlawful attack in that persecution count have not been

17     established at all and have to be dismissed.  I hasten to add that they

18     have likewise failed to show that General Gotovina had any discriminatory

19     intent on that score.  So persecution would likewise be dismissed for

20     that reason.

21             But going go back to the JCE element, we have established that

22     the shelling was lawful.  And contrary to the argument made by the

23     Prosecutor, General Gotovina shared no criminal purpose with anybody else

24     and certainly had no significant contribution to any JCE.

25             Now, if we look back at paragraph 12 of the indictment, it is an

Page 17261

 1     attempt to encompass virtually all of these crimes in one lump sum in

 2     somewhat of an artful fashion, and I will attempt to parcit through to

 3     get through this.  But quite clearly it -- General Gotovina is charged

 4     with being part of a JCE with a common purpose, among other things,

 5     appeared to be the systematic looting and burning.  And given the fact

 6     that the only meeting that was referenced by the Prosecutor on this score

 7     was Brioni, one has to exclude, unless we hear differently and we haven't

 8     heard over the past year any differently, that this plan to burn and loot

 9     was, again, hatched at Brioni on the 31st of July, 1995.  Your Honours,

10     you will search in vain for any such discussion.  It doesn't exist.

11             To the contrary we have a remarkable situation, again putting

12     this meeting in Brioni in context, with a variety of other interesting

13     events presented during the course of the Prosecutor's case.  I mentioned

14     previously this meeting on 1st August with Ambassador Galbraith.  That's

15     referenced on pages 428 and 429, where Ambassador Galbraith tells

16     President Tudjman to safe-guard the civilian population.

17             I'm sorry, 4928, 4929, thank you.

18             It is followed on a meeting on the 2nd of August of 1995 that is

19     reflected in D409 where Minister Susak, General Cervenko,

20     General Gotovina, General Markac, and others, and there are numerous

21     people there, you can see the attendees.  But General Susak cautions

22     these individuals that all offences have to be prevented, Military

23     District commanders were who to pass on to other commanders the

24     prohibition of torching and looting, and they must prevent having the

25     heros of the home land war being brought to a Court.

Page 17262

 1             Later on that same day in the afternoon, 1730, a similar meeting

 2     takes place where Minister Susak and Minister Jarnjak are with Mr. Lausic

 3     and Mr. Moric again planning for the -- what's going to happen law and

 4     order-wise once the Krajina is taken over.  I will note that

 5     General Gotovina is not at that meeting.  We have yet another meeting on

 6     the 3rd where Moric and Lausic are having yet more plans for this matter.

 7     We have General Gotovina on the 2nd of August after his meeting with

 8     Susak, et cetera, giving an order that there is to be no looting and

 9     burning and torching.  And that's at D201 which is part of P1125.  I

10     might hasten to add when I showed that particular document to

11     Ambassador Galbraith, he noted that this was the kind of document that he

12     was looking for to be passed down by someone like General Gotovina during

13     Operation Storm.  That reference is at page 5035, lines 1 through 4.

14             So when we look at the allegations made by the Prosecution from

15     -- from Brioni, we also have to look at a series of orders being given by

16     the highest levels of the Croatian government to protect the civilian

17     population, to stop looting and burning, to set up law and order, and all

18     of those orders have been given out at the highest levels certainly by

19     Minister Susak and Minister Jarnjak.  And if we were to go along with the

20     position, the untenable position presented by the Prosecution, those

21     orders were being given with the idea that no one would follow them,

22     because that is the only equation under which the position of the

23     Prosecution makes sense.

24             What's interesting is that I asked that particular question to

25     Ambassador Galbraith at page 5079, lines 23 and 25, and we do go back and

Page 17263

 1     forth a little bit about this, so I don't want to focus you on that

 2     particular line because there is some discussion prior to that.  But in

 3     essence, I asked Ambassador Galbraith, did Minister Jarnjak and Minister

 4     Susak would, they issue orders that President Tudjman did not want

 5     followed?

 6             The answer was no.  Again, coming out of this Brioni meeting or

 7     any other meeting, there is simply no agreement to participate in the

 8     looting, and burning in the Krajina or that General Gotovina or any proof

 9     that General Gotovina made any significant contribution or was

10     complicitous in any such endeavour at all.

11             Let us turn to the other aspect of the JCE, i.e., the destruction

12     that took place in the Krajina after Operation Storm.  We're not here to

13     say that there wasn't burning that took place and looting that took place

14     after Operation Storm.  You -- the UNMO assessment is reflective --

15     certainly the last one, there are many of them, has been reflected in

16     P176.  But what was clear from an analysis of that document not only

17     through the witnesses but in documents that -- that have been presented

18     by the Gotovina Defence that in fact both Serb and Croat villages were

19     destroyed on occasion and both Serb and Croat villages were not

20     destroyed.  We have attempted to chart out this ironic position given the

21     Prosecutor's case in D1327.  The Prosecutor says yet further -- and this

22     is in their opening statement at P457, page -- lines 21 to 23, HV

23     soldiers and police continue to loot the in the houses in Knin with the

24     exception of those marked as Croat houses which were conspicuously

25     preserved.

Page 17264

 1             That ended up not being true either.  If we look at the

 2     transcript of UNMO Peter Marti, Un military observer at page 4686, where

 3     he talks about the fact that someone is putting Croatian house on this --

 4     on the outside.  And he was questioned.  He begins and he starts talking

 5     about a young female writing that on her house, Croatian house.  And at

 6     line 13:

 7             "Q.  Was she an older lady, younger lady?

 8             "A.  She was quite young, about 30.

 9             "Q.  But a civilian?

10             "A.  Civilian, yes.

11             "Q.  And you noted for us in the same page at line 16 that

12     writing 'Croatian house' was not always a guarantee that the house would

13     remain untouched.  Was that your experience?

14             "A.  Yes.  It happened that even houses were torched or partly

15     damaged which at the signal before Croatian property or whatever."

16             Pardon my comment there, but I'm reading it literally.

17             "Q.  Sometimes it didn't make a difference.

18             "A.  Yes."

19             That was in fact buttressed by the comments of Mr. Boucher at

20     page 14047, line 13, that is where he says:

21             "That is, there was -- they would be put 'don't touch, Hrvatska

22     kuca,' meaning 'Croatian house.'  But even then could you see there was

23     -- there was houses that the doors had been broken into."

24             What does the evidence actually reflect?  Certainly there is

25     nothing coming out of the Brioni meeting or in any other meeting where

Page 17265

 1     some agreement was formulated to allow this conduct to take place.  What

 2     are we left with?  We are left with the comments and assessment by again

 3     a Prosecution witness Peter Marti, where he talks, beginning on -- I

 4     believe this is actually this his statement at page 415, page 3 and 4,

 5     where he notes that the best description of the looting that took place

 6     in the Knin area would be shopping without paying.  He notes that:  "My

 7     personal opinion is that they really were civilians," referring to the

 8     people that were causing this damage.  "My personal opinion is that they

 9     really were civilians, maybe some of them have been in the army before.

10     The looting was not ordered by somebody.  Because you couldn't see any

11     kind of systematic pattern in it except from the fact that it was more or

12     less total."

13             What we have and from the evidence presented by the Prosecutor is

14     no evidence to tacitly approve this conduct, no evidence that

15     General Gotovina made any significant contribution to a meeting that had

16     such -- such criminal acts as part of his goal.  What we do have is

17     evidence that there was a significant power vacuum by the Croatian

18     government once page storm was completed.  In fact, they were too

19     successful in moving too quickly in retaking it.  The argument simply is

20     in its substance that the Croatian government should have tried harder to

21     bring law and order to the area.  That may be a negligent act on behalf

22     of the Croatian government, but it certainly does not rise to criminal

23     conduct on anyone's part, the least of which is General Gotovina.

24             Going back to the Brdjanin elements that are set forth in

25     paragraph 431:  An accused has to have an intend to commit a crime.  He

Page 17266

 1     has to have -- this is in referring to JCE liability.  He has to have

 2     intent to commit a crime; he has joined with others to achieve this goal;

 3     and he has made a significant contribution to the crime's commission.

 4             Sufficient it to say there has been no evidence to support the

 5     allegations that there was any intent on behalf of General Gotovina to

 6     commit a crime, that he joined with others to commit any such crime, that

 7     he knowingly an intentionally joined with others to commit such a crime,

 8     nor that he made any significant contribution to any crime's commission

 9     given the fact that the one thing that he is accused of doing improperly

10     is the artillery attack on Knin which we have concluded was lawful in all

11     respects.

12             The last part this argument is the failure to punish argument or

13     the 7(3) liability.

14             JUDGE ORIE:  Mr. Kehoe.

15             MR. KEHOE:  I'm sorry.

16             The question whether General Gotovina took necessary and

17     reasonable measures to prevent and punish crimes by his subordinates.

18             That is the only matter left for consideration because the

19     Prosecutor's case in toto is off the table as a result to a joint

20     criminal enterprise, because for all reasons stated above, it has not

21     been established in order to get passed Rule 98 bis scrutiny.

22             As we move to the reasonable and necessary measures discussion,

23     I'd like to turn the floor over to my colleague, Mr. Misetic.

24             JUDGE ORIE:  Thank you, Mr. Kehoe.

25             Mr. Misetic, according to my time keeping, the Gotovina has used

Page 17267

 1     two hours and three minutes until now.  No, seven or eight.

 2             MR. MISETIC:  So to 12.40, Mr. President.

 3             JUDGE ORIE:  I beg your pardon.

 4             MR. MISETIC:  I can go to 12.40.

 5             JUDGE ORIE:  Yes, whether we need another break or not.  But if

 6     you would go to 12.40, then we might have a bit of a late break.  But I'm

 7     just wondering, that might be too much for one tape, so we have to make a

 8     break anyhow, but for you to know how much time there is left.

 9             MR. MISETIC:  Mr. President, I will try to find a suitable moment

10     to break.

11             JUDGE ORIE:  Please proceed.

12             MR. MISETIC:  Good morning Mr. President, good morning,

13     Your Honours.

14             Picking up where Mr. Kehoe and Mr. Akhavan left off, is the issue

15     of Article 7(3) liability, as well as the issue of responsibility for

16     murders which are two issues that I will be addressing today.  We are, of

17     course, as Mr. Akhavan pointed out cognisant to the fact that this not

18     closing argument and that we are arguing here as to whether the

19     Prosecution has presented not any evidence, but rather any evidence that

20     taken at its highest could be the basis for proof beyond a reasonable

21     doubt.

22             Given that it is it our position that there was no -- certainly

23     no evidence of a JCE to commit large-scale burning and looting, or any

24     evidence that General Gotovina had an intention to participate in

25     relation to such a JCE, the only remaining basis for attribution of

Page 17268

 1     liability pursuant to the Statute is under Article 7(3).

 2             The Prosecution's theory of General Gotovina's command

 3     responsibility rests primarily on an allegation of a failure to take

 4     necessary and reasonable measures to prevent or punish crimes.  The

 5     Halilovic trial judgement gives an indication at paragraph 74 or an

 6     explanation, I should say, of what might constitute necessary and

 7     reasonable measures.  And the Halilovic Trial Chamber found reasonable

 8     measures could include specific orders prohibiting or stopping the

 9     criminal activities, measures taken to secure the implementation of these

10     orders, other measures taken to ensure that unlawful acts are

11     interrupted, and whether these measures were reasonably sufficient in the

12     specific circumstances, and after the commission of the crime what steps

13     were taken to secure an adequate investigation.

14             The Prosecution's case concedes that General Gotovina did take

15     the following measures.  Mr. Theunens' report at page 252, he cites that

16     the Croatian army instituted a plan in the weeks before Operation Storm,

17     i should say a program, that would require international humanitarian law

18     training for officers.  The Prosecution concedes that in

19     General Gotovina's attack order for Operation Storm, which is at

20     Exhibit D201, that General Gotovina issued specific preventative orders

21     to prevent the commission of crimes and specifically referenced the need

22     that political affairs officers in the army needed to make sure that

23     subordinates were instructed on their obligations under the

24     Geneva Conventions.  In the record in the Split Military District diary

25     at P71, page 83, we have oral -- an oral order on the evening of the 4th

Page 17269

 1     that Knin must not experience the same fate as Grahovo.  Again at P71,

 2     page 84, we have another oral order when information came in to

 3     General Gotovina's operational command that the 7th Guards Brigade was

 4     about to enter Knin.  It is recorded that General Gotovina ordered

 5     maximum fairness in the treatment of civilians and behaviour towards the

 6     UN.  And it is noted that this order has been passed to all operative

 7     groups and commanders.

 8             After the 5th, on the 6th you have seen the command climate that

 9     General Gotovina sent on the now famous Knin video of the meeting on the

10     6th at the fortress in Knin.  On that same video General Gotovina issues

11     an oral order requiring that all war booty be properly registered.  The

12     next day, Exhibit D981, General Gotovina issues a written order not only

13     requiring the registration of war booty, but he established a committee

14     to inspect the war booty lists and ensure compliance.  Based on

15     information coming from the field, General Gotovina issues another order

16     on the 10th of August, which is Exhibit D204, which is issued in the

17     preamble in order to prevent theft of property, undisciplined conduct,

18     and to save human lives, and in the order he prohibits the arbitrary

19     movement of HV members in the liberated areas and orders that commanders

20     take all necessary measures to prevent arson and undisciplined conduct.

21             On the 12th of August, Split Military District Command political

22     affairs branch at Exhibit P918 issues a warning to lower level political

23     affairs officers that they have to be more energetic in preventing

24     criminality, including arson and theft and the killing of livestock.

25     That exhibit is particularly important as it is uncontested by the -- I

Page 17270

 1     should say, not only uncontested by the Prosecution, but indeed a

 2     Prosecution Exhibit.  Because in it the Split Military District political

 3     affairs officer references the fact that it is the policy of

 4     President Tudjman and Minister Susak that this type of criminal activity

 5     must stop.  And again in the overall context of whether the Prosecution

 6     has submitted sufficient evidence of a JCE to commit burning and looting,

 7     we submit that P918 is the only specific evidence offered by the

 8     Prosecution as to what the intentions were of two of the named members of

 9     the JCE, and certainly is the evidence of what the subordinates of these

10     individuals thought that the policy was of President Tudjman and

11     Minister Susak.

12             After ordering his subordinates to issue disciplinary measures,

13     in order to protect property and lives, it was confirmed by the

14     Prosecution's in-house expert, Mr. Theunens, that the Split Military

15     District issued 151 per cent more disciplinary measures in the third

16     quarter than they had in the first two quarters.  The statistics show

17     that the disciplinary measures taken -- and we've had significant debate

18     in the trial which I will not go into again about the distinction between

19     ordering disciplinary measures for disciplinary infractions and requiring

20     criminal prosecution for criminal actions.  But in any event, the Split

21     Military District issues numerous disciplinary measures precisely against

22     soldiers who were AWOL, absent without leave, or otherwise absent from

23     their unit which should be directly connected to General Gotovina's order

24     from the 10th of August at D204, which the first measure that

25     General Gotovina issues in order to present the theft of property,

Page 17271

 1     undisciplined conduct, and to save human lives, the first measure he

 2     issued is to prohibit arbitrary movement of HV members.  And so the fact

 3     that the statistics show a substantial increase in disciplinary measures

 4     taken for absence is significant in that regard.

 5             With respect to a specific unit, the evidence is in this case,

 6     that there was information of one particular commander who was having

 7     difficulty implementing the orders to prevent crime.  And this is

 8     Exhibit D984, relates to a SIS report of the 18th of August, where the

 9     Split Military District Command is advised "the 134th Home Guard Brigade

10     are continuously destroying and burning residential buildings because the

11     commander lacks the necessary authority to implement the orders of

12     Operative Group West."  The Split Military District Command immediately,

13     on the basis of that order, takes measures to deal with the problematic

14     unit.

15             D985, an order by General Gotovina of the same date, immediately

16     ordering the formation of a commission to inspect the list of war booty

17     of the 134th, and to compare what was listed with what is actually found

18     on the ground.

19             D884 and D885 are orders of the Split Military District Command

20     to dismiss from the 134th all soldiers who are engaging in illegal

21     conduct or disrupting military discipline.

22             As the Trial Chamber will recall in the cross-examination of

23     Mr. Theunens, the result was following this order that 75 per cent of the

24     134th Home Guards were demobilised which can be seen by comparing D986,

25     which reports 2302 members of the 134th on the 21st of August; with D987,

Page 17272

 1     page 19, which reports 581 left, of which less than 200 are active.

 2             Importantly, in the assessment of the Prosecution's claim that

 3     General Gotovina failed to take necessary and reasonable measures, it is

 4     important to note that Mr. Theunens acknowledged at page 12847 that,

 5     after the 18th of August, and after this report about the 134th, there

 6     are no further reports in the Split Military District diary or any other

 7     reports to the Split Military District command which would indicate or

 8     would have indicated to the Split Military District Command that any

 9     burning or looting by HV units on the territory of the Republic of

10     Croatia was continuing.  Accordingly, we submit, the Prosecution has

11     failed to show and failed to submit any evidence that General Gotovina

12     would have known that the measures that he had taken, up to and including

13     the 18th of August, lacked effectiveness.  It is also important to note

14     here, that, in addition to General Gotovina's duties, the Prosecution, in

15     its pre-trial brief, at paragraph 107, acknowledges or states that an

16     armed conflict existed and continued between the HV and the ARSK after

17     the conclusion of Operation Storm, through August, through September, and

18     into October, through Operation Southern Sweep.  And at paragraph 107 of

19     the pre-trial brief the Prosecution even references the

20     12 August counteroffensive against General Gotovina's forces in Bosnia,

21     which the Prosecution states was done by the ARSK and not the VRS.  And

22     the Prosecution's position in the pre-trial brief is that hostilities

23     between the ARSK and the HV continued till approximately the 15th of

24     October.

25             So in addition to General Gotovina's duties in Bosnia which is

Page 17273

 1     part of the Prosecution's case in chief, he was dealing and took

 2     necessary and reasonable measures in the area that he had liberated.

 3     Thus, Your Honours, the Prosecution's theory of command responsibility in

 4     this case is not that General Gotovina failed to take necessary and

 5     reasonable measures; but, rather, that he allegedly failed to take enough

 6     necessary and reasonable measures.  Glaringly absent from the

 7     Prosecution's case in chief, however, was any evidence offered by the

 8     Prosecution as to what specific measures were available to

 9     General Gotovina that he failed to take.  In this regard it is important

10     to note the Prosecution tendered -- I should say, the Prosecution filed

11     an expert report by Major-General Andrew Pringle who was supposed to

12     testify on command and control.  In the witness summary filed with the

13     Chamber, the OTP stated that General Pringle was going to give expert

14     testimony to the Trial Chamber about command and control issues, and I

15     quote the Prosecution here:

16             "In particular, in relation to the accused Ante Gotovina and

17     Ivan Cermak based on documentation examined by him."

18             At the end of the Prosecution's case, however, OTP chose not to

19     call General Pringle on this critical issue.  We submit that this failure

20     is fatal to the Prosecution's case on command responsibility.

21     Furthermore, the Prosecution failed to elicit from any relevant witness

22     who may have been capable of doing so, such as Mr. Theunens or

23     General Lausic, any evidence with respect to what necessary and

24     reasonable measure General Gotovina failed to take.

25             You will recall my debate with Mr. Theunens, Mr. Theunens's

Page 17274

 1     assertion about Drvar and General Gotovina imposing military rule in

 2     Drvar in Bosnia.  We submit, Your Honours, that that clearly cannot be a

 3     necessary and reasonable measure.  We await to see if that is in fact

 4     what the Prosecution contends.  However, we believe there is no evidence

 5     to support a claim that General Gotovina had the authority to issue or

 6     authorise military rule in liberated areas of the Republic of Croatia.

 7             The Prosecution in its pre-trial brief at paragraph 67 alleges

 8     that General Gotovina could have done three things:  Investigated the

 9     allegations using military police or others at his disposal; notifying

10     appropriate military and civilian prosecution authorities, such as the

11     military prosecutor's office of the crimes; and imposing immediate

12     disciplinary measures for disciplinary sentences.

13             The Prosecution's evidence taken at its highest as Mr. Akhavan

14     stated is that it was General Lausic through Major Juric who was in

15     control, in command and control of the military police in its crime

16     prevention, crime investigation, and crime processing functions.  In the

17     re-direct examination of Mr. Lausic, the Prosecution posed the question,

18     could General Gotovina have issued an order, which we submit,

19     Your Honour, does not get the Prosecution passed the von Leeb case or the

20     Halilovic Appeals Chamber decision as to whether a hypothetical question

21     about a potential right to intervene is sufficient to establish the

22     failure to take necessary and reasonable measures.

23             For the record, the Gotovina Defence disputes the claim that he

24     had such a right to intervene.

25             With respect to the issue of notifying the military and civilian

Page 17275

 1     prosecution authorities, there has been no evidence in the record to

 2     indicate that General Gotovina had any knowledge of crimes --

 3             JUDGE ORIE:  Could I invite you generally to slow down because I

 4     see that there are problems with the French translation certainly.  And

 5     you know respiratory system and "respirer," words of the same route, just

 6     mean that they need to take a breath now and then as well.

 7             Please proceed.

 8             MR. MISETIC:  My apologies to the booths and to the court

 9     reporter and to the Chamber.

10             There is no evidence in the record that General Gotovina had any

11     knowledge of crimes that was not known to the civilian and military

12     authorities.  In fact, the evidence has been the opposite, that

13     General Gotovina would have been relying on the civilian and military

14     authorities for his information and not the other way around.  And with

15     respect to imposing immediate disciplinary measures, we have already

16     discussed the fact of the increase of 151 per cent in the third quarter.

17     We are thus left to speculate as to what the necessary and reasonable

18     measure is that the Prosecution believes General Gotovina failed to take.

19     Having failed to put that specific issue to Mr. Theunens or Mr. Lausic or

20     any other relevant witness, having decided to abandon the testimony of

21     General Pringle, we are now going to be left with speculation argued by

22     Prosecution counsel as to what a reasonable and necessary measure would

23     have been.  We note the potential that the Prosecution is going to rely

24     on a hypothetical answer given by General Forand at 4535 of the

25     transcript about removing a commander in the event that orders were not

Page 17276

 1     being implemented.  However, we note that there is no evidence in the

 2     record of any question having been put to General Forand or any other

 3     witness about General Gotovina's specific circumstances and whether in

 4     the specific circumstances of this case, that would have been an

 5     appropriate measure.

 6             Furthermore, we note that in the one instances of a commander

 7     being unable to implement the orders, that would be the 134th Home Guard

 8     brigade which I have mentioned already, the Split Military District

 9     demobilized virtually the entire 134th Home Guard Brigade.  And it can be

10     hardly said that the Prosecution has proven that that was not a necessary

11     and reasonable measure with respect to that unit.  The Prosecution, given

12     the fact that there is no evidence that after the 18th

13     August General Gotovina would have this any information that the measures

14     he had taken were not effective, the Prosecution is left to show that

15     there were other necessary and reasonable measures which could have been

16     taken and which would have stopped criminal activity before the 18th of

17     August.  We submit to you, Your Honours, that there is no evidence in the

18     record to support such speculation by the Prosecution.

19             JUDGE ORIE:  Mr. Misetic, since are you apparently are thinking

20     about something, I would like to inform you that as far as the technical

21     side is concerned we could go on until 12.40, but it might be very long

22     for the interpreters and transcriber, so I'm seeking whether there would

23     be any opposition against finishing Mr. Misetic's parts.

24             I hear at least on the English channel no ... and listening to

25     the French channel, I hear my words translated but ... and I get at least

Page 17277

 1     from the French both consent.

 2             THE INTERPRETER:  That is indeed already, Your Honour.  Thank

 3     you.

 4             MR. MISETIC:  Thank you, Mr. President, and I will actually try

 5     to wrap up before then, so I thank the interpreters for sacrificing some

 6     time.

 7             With respect to the issue of the military police command and

 8     control, that has been a topic which has been debated at length and which

 9     the -- the Trial Chamber does not need us to go over again.  Suffice it

10     to say, that is it clear on the evidence, and there is no evidence

11     capable of prove beyond a reasonable doubt that General Gotovina was in

12     command of the military police in its crime prevention, crime

13     investigation, and crime prosecution functions.  You had the opportunity

14     to see Mr. Lausic.  You have seen the documents.  And it has not been

15     challenged by the Prosecution that in fact Mr. Lausic, through

16     Major Juric, was exercising command and control over the military police

17     in those functions, and more importantly, or just as importantly, that is

18     entirely consistent with the system that had been set up on the 2nd of

19     August, the plans that had been detailed on the 3rd of August, and the

20     orders that were issued by General Lausic regarding reporting from the

21     field and the fact that the military police in its reporting would be

22     reporting directly to him through Major Juric and not reporting to

23     General Gotovina.

24             Therefore, the evidence in the record thus far is that orders

25     were issued by General Lausic through Major Juric, and reports were sent

Page 17278

 1     back up that same chain with relation to crime prevention, crime

 2     investigation, and crime prosecution.  The evidence also is -- I should

 3     say, there is no evidence that any orders were issued by General Gotovina

 4     to the military police regarding crime prevention, crime investigation,

 5     and crime prosecution, nor were reports sent to him on those counts.  The

 6     Prosecution is left with arguing that General Gotovina received daily

 7     reports, the regular daily reports of the 72nd MP Battalion, but we note

 8     that the Chamber should pay particular attention to whom those reports

 9     were sent.  They were sent to a wide distribution list, including

10     military prosecutors, garrison commanders, political affairs officers,

11     et cetera, yet the Prosecution wouldn't allege that the military

12     prosecutor's office had military police under its command and control.

13             We submit that the issue is clear and that there has been no

14     evidence to support a theory.  In fact, I should point out that it would

15     actually contradict the Prosecution's own in-house expert should the

16     Prosecution now argue that there was a dual command over the military

17     police.  Mr. Theunens was quite clear in his expert report and in his

18     oral testimony that in the HV, including in the military police, the

19     principle of unity of command ruled, which meant there is one commander,

20     or not two commanders issuing orders on the same subjects.  Given

21     Mr. Theunens' position, we submit that if there is one commander in fact

22     for military -- for crime prevention, crime investigation, and crime

23     prosecution, that the only conclusion that can be drawn is that that

24     commander was Mate Lausic.

25             With respect to the murder counts, the Defence requests that

Page 17279

 1     these Counts which are Counts 6 and 7 be dismissed and it is the

 2     Defence's working understanding that such a dismissal would encompass the

 3     ten specific killing incidents identified in the joinder indictment along

 4     with the entire 337 alleged victims now listed in Appendix C to the

 5     Prosecution's further clarification of identity of victims.

 6             The first reason the counts fail is because there has been no

 7     evidence that General Gotovina knew or had reason to know that his

 8     subordinates committed murder and that is the mens rea standard

 9     established by the Appeals Chamber in the Oric appeals decision of

10     December 2007.  It is not sufficient under that Appeals Chamber judgment

11     that General Gotovina may have been aware of the disposal of dead bodies

12     by sanitation crews, since this does not establish either, A, that the

13     deaths were unlawful killings constituting murder as distinct from

14     combat-related deaths or lawful killings, or, B, that General Gotovina's

15     subordinates were responsible.

16             Now the Defence has been left throughout the pre-trial and

17     trial ... now the Defence has been left throughout the pre-trial and

18     trial phase, and so has the Trial Chamber for that matter, to speculate

19     as to what the Prosecution's theory is of General Gotovina's mens rea

20     with respect to killings.  Based on a review of the Prosecutor's opening

21     statement, it is our belief that the Prosecution intends to rely on

22     sanitation reports issued to the Split Military District or from the

23     Split Military District, and these would be Prosecution Exhibits P507,

24     and D1057.  However, on this score, it is important to note the

25     cross-examination of Mr. Theunens on this point.

Page 17280

 1             Mr. Theunens had a specific section in his report entitled

 2     "Notice to General Gotovina of crimes."  And based on that, he was

 3     cross-examined about the fact that nothing in his report indicated that

 4     General Gotovina had any notice of crimes -- I should say of murder

 5     having been committed.  The Chamber will recall that Mr. Theunens was

 6     given the third session of one day and was given the opportunity

 7     overnight to review his report and to review the Prosecution's database

 8     to see if he could find any document which would indicate that

 9     General Gotovina had notice of murder.  And Mr. Theunens, when he came

10     back to court the next morning - this is at transcript page 12570, lines

11     6 to 16, 12609, lines 1 to 6, and lines 13 to 25 - Mr. Theunens

12     acknowledged that he had found no written evidence or other evidence of

13     any notice of murder to General Gotovina.

14             That is independent in addition to its importance because it

15     comes from the OTP's in-house expert.  It is also important to note that

16     Mr. Theunens cited the sanitation reports in his report, and this would

17     be at pages 167 of the Theunens' report, which is 427 of the PDF, page

18     241 which is page 501 in the PDF, pages 245 to 246 which is pages 505 to

19     506 of the PDF, and page 262 which is page 522 of the PDF, and

20     specifically Exhibits P507 and D1057, upon which we expect the

21     Prosecution to rely for mens rea for murder are in Theunens' report.  So

22     we are left with the situation apparently, unless this is an new theory

23     that comes up in response, that the Prosecution's in-house expert himself

24     had the sanitation documents not only at his disposal but cited them in

25     his report, had two days, or I should say an afternoon and an evening to

Page 17281

 1     consider whether he could find any notice of murder.  And he, himself,

 2     didn't think that sanitation reports amount to mens rea notice of murder.

 3             We submit to you, Your Honours, that if the OTP's own in-house

 4     expert did not believe that the sanitation documents cited in his own

 5     report constitute notice of murder, it is unclear how the Office of the

 6     Prosecutor expects the Trial Chamber to rely on these same sanitation

 7     documents as capable of proving beyond a reasonable doubt

 8     General Gotovina's knowledge of murder.

 9             There is no -- moving forward, there is no JCE catchall here.

10     There is no basis to hold General Gotovina liable for murders as a

11     foreseeable consequence of a JCE for the reasons previously argued;

12     namely, that there is insufficient proof of the JCE.  We also wish to

13     rely on the Strugar Rule 98 bis decision which permits partial dismissal

14     of Counts.  And as Mr. Akhavan indicated in that decision, the

15     Trial Chamber permitted the dismissal of certain structures at that point

16     in the case because damage to those structures had not been proven.  We

17     submit that in respect to the murders, the Trial Chamber should take the

18     same approach that the Strugar Trial Chamber did in the Rule 98 bis

19     decision and dismiss the following -- first of all, all of the murder

20     allegations as it relates to General Gotovina do to the mens rea failure.

21     But then specifically -- and we can provide a written submission on this

22     if the Chamber desires.  But with respect to the following cases, there

23     has been no evidence presented at all by the Prosecution relating to some

24     alleged murder victims identified in its further clarification schedule,

25     no witnesses testified about the alleged circumstances, no witness

Page 17282

 1     statements were admitted discussing the alleged circumstances, no autopsy

 2     or other report was admitted concerning 87 specific instances.  And I can

 3     read out the numbers in the further clarification, which is 9 to 11, 21,

 4     23, 24, 29, 31 through 34, 36, 38, 39, 41, 77, 79, 80, 82, 83, 85, 108,

 5     109, 115, 116, 118, 131, 132, 135, 140, 141, numbers 164 through 179,

 6     number 192, 194, 210, 223, 225, 262, 276, 283 through 285, 300, 301, 303,

 7     304, 308 through 315, 318 through 320, 322, and 324 through 337.

 8             There's also undisputed evidence tendered through Dr. Clark of

 9     hospital patients that it was apparent that several of the alleged murder

10     victims identified in the Prosecution's further clarification schedule

11     who were in fact patients from the Knin hospital who had no apparent

12     indication of having been murdered, these five instances are in the

13     clarification schedule and are numbered 12, 234, 239, 243, and 270.

14             With respect to cases where the cause of death was unascertained

15     or undetermined, those are 37 specific incidents.  They are 15, 16, 51,

16     55, 58, 59 --

17             JUDGE ORIE:  Mr. Misetic.

18             MR. MISETIC:  65, 104, 113, 191, 193, 197, 200, 202, 205 through

19     207, 213 through 220, 224, 226, 228 through to 230, 238, 240, 241, 264,

20     268, 288, 297, and 302.

21             In addition, there are some incidents -- we note again that the

22     Chamber has now given us five weeks to investigate the rest of these

23     alleged killings, so this is a tentative review.  But the Prosecution in

24     the following instances has not established any evidence of a

25     superior/subordinate relationship to scheduled killing incident 4,

Page 17283

 1     scheduled killing incident 5, scheduled killing 7, scheduled killing 9.

 2     Scheduled killing 10 was an incident that did not take place in the area

 3     of responsibility of the Split Military District.

 4             Scheduled killing 1, 6, and scheduled killing 8.1, we state

 5     should be dismissed because the evidence contradicted a finding of

 6     murder, for example 8.1 was an indication -- or the evidence was that the

 7     person committed suicide.  And finally the evidence in the record with

 8     respect to the following incidents indicates that an investigation and

 9     Prosecution was done with respect to scheduled killing 8.2 which is

10     Uros Saric and 8.3 Uros Ognjenovic, the Varivode incident which is

11     further clarification 95 through 103, and Sava Babic which is further

12     clarification incident 7.

13             In summation, and as our prayer for relief, Your Honours, we ask,

14     that the following be dismissed:  All Article 5 crime against humanity

15     charges fail because there was no widespread or systematic attack

16     directed against a civilian population.  This would result in a dismissal

17     of persecutions under 5(h), deportation under Article 5(d), inhumane act,

18     forcible transfer under Article 5(i), murder under Article 5(a), and more

19     generally, inhumane acts under Article 5(i).

20             Count 1 fails because Operation Storm was lawful under the laws

21     of war, so it does not constitute a crime against humanity.  There was no

22     discriminatory intent with regard to the purpose of Operation Storm.

23     There was no discriminatory intent with regards to the burnings and

24     lootings.

25             Counts 2 and 3 also fail because civilians did not flee and

Page 17284

 1     there's been no evidence that they fled due to unlawful shelling.

 2     Notwithstanding lawful shelling, civilians did not flee because of panic

 3     arising from combat operations.  Collection centres did not constitute

 4     forcible transfer.  Counts 4 through 9 fail because there's been no

 5     evidence that General Gotovina had the intent to commit crimes against

 6     humanity or war crimes through destruction or pillage of property or that

 7     he made a significant contribution to the commission of such crimes.  In

 8     fact the undisputed evidence has been that General Gotovina issued orders

 9     and took measures to stop such criminal activity.  There is thus no

10     policy of acquiescence.  Even if the Trial Chamber were to find that

11     they're generally was, there is no evidence that General Gotovina was

12     part of such an acquiescence.

13             Therefore, there is no JCE after Operation Storm.  This is a case

14     of command responsibility, and the evidence has been that

15     General Gotovina took all necessary and reasonable measures against his

16     subordinates.  The Prosecution contends apparently that he did not take

17     enough necessary and reasonable measures, but the Prosecution has failed

18     to adduce evidence of what that necessary and reasonable measure or

19     measures with have been.

20             Mr. President, Your Honours, the Prosecutor has failed it present

21     evidence of General Gotovina's criminal liability on all counts of the

22     joinder indictment.  Accordingly, we respectfully request that this

23     Trial Chamber enter a judgement of acquittal on all counts.  On behalf of

24     Mr. Akhavan and Mr. Kehoe, I thank you for your attention.

25             Thank you.

Page 17285

 1             JUDGE ORIE:  Thank you, Mr. Misetic.

 2             Before we take a break, I with like it put a few short questions,

 3     not to enter a debate, but just to seek a clarification.

 4             The first one is about you, Mr. Misetic, and you, Mr. Akhavan,

 5     relying on the Strugar case as far as acquittal on certain portions is

 6     concerned, so structures in Dubrovnik.

 7             I haven't heard any -- of any authority after December 2004

 8     because the Strugar decision was in June 2004, when Rule 98 bis was still

 9     talking about one or more offences, whereas since December 2004, Rule

10     98 bis is about an acquittal on any count.  So if there's any authority

11     after December 2004 that you could present the Chamber would appreciate

12     to hear of that.

13             Mr. Kehoe, I have one question for you, just to verify for

14     myself, whether it was a slip of the tongue or whether you meant that a

15     question about issuing orders contrary to the wishes of Mr. Tudjman, and

16     that's the language we find, at least in the -- on the pages that is

17     5079, whether you misspoke when, at page 45 and 46 today you said "we

18     asked that Jarnjak and Susak issue any order that Tudjman wished not to

19     be followed," whether you would say, although there's a difference in

20     language, no, this is the same; or whether you misspoke and you wanted to

21     refer to the actual question that was put to the witness on page 5079,

22     that was Mr. Galbraith, as far as I remember.

23             MR. KEHOE:  To the extent that there was some misunderstanding, I

24     was attempting to refer to Ambassador Galbraith' question and answer on

25     the score that Jarnjak and Susak were issuing orders, and did they ever

Page 17286

 1     issue orders that President Tudjman didn't want issued.  And I do believe

 2     his response was, no, they never issued orders that -- that Tudjman --

 3             JUDGE ORIE:  I think the question was about contrary to

 4     Mr. Tudjman wishes issuing orders.

 5             MR. KEHOE:  [Overlapping speakers] ...

 6             JUDGE ORIE:  Of course the enforcement of an order or issuing an

 7     order against someone's wishes is -- may be considered as to questions

 8     which are not exactly the same.

 9             MR. KEHOE:  Yes.

10             JUDGE ORIE:  Thank you for that clarification.

11             Mr. Misetic, you took us to a question you had put to

12     Mr. Theunens after he returned from a break.  You told us that

13     Mr. Theunens confirmed that after the 18th of August, and, as you said,

14     did not find any notice on burning and looting in the operational diary

15     or any other report, as you said.

16             Now, the reference you took us to there, the question was limited

17     to the operational diary, and the answer of Mr. Theunens also said, no, I

18     did not find that in the operational diary.

19             Now, it could well be that I have not had an opportunity yet to

20     go through the sequence of questions that finally led to your invitation

21     to review certain documents.  If you would be able it give us guidance as

22     where the other reports are, specifically mentioned by Mr. Theunens, that

23     would be appreciated.  Because on -- on the place you referred to, it is

24     there it is, but only that specific place, and I'm fully aware at that

25     may be, as they call it, passem [phoen] somewhere.  Of course the Chamber

Page 17287

 1     would like to -- to receive such additional information which would

 2     further support your position, that Mr. Theunens said not in the

 3     operational diary nor in any other report.

 4             MR. MISETIC:  Mr. President, I will go ahead and do that, and you

 5     may recall that Mr. Theunens' testimony took a few days [Overlapping

 6     speakers] ...

 7             JUDGE ORIE:  [Overlapping speakers] ...  I'm fully aware of that.

 8             MR. MISETIC:  Thank you.

 9             JUDGE ORIE:  We'll have a break -- yes, Mr. Akhavan.

10             MR. AKHAVAN:  I apologise, Mr. President.  Did you wish for me to

11     address the question of Rule 98 bis now or after the break?

12             JUDGE ORIE:  Or even in the next round.  I just wanted to raise

13     this issue so that you have time to consider it and that we hear before

14     we depart that we hear from you on the matter.

15             MR. AKHAVAN:  Certainly.  Thank you.

16             JUDGE ORIE:  We'll have a break, and we will resume at 1.00.

17                           --- Recess taken at 12.41 p.m.

18                           --- On resuming at 1.03 p.m.

19             JUDGE ORIE:  May I invite the Cermak Defence to make submissions

20     under Rule 98 bis.

21             Mr. Kay.

22             MR. KAY:  Thank you, Your Honour.  This is the application on

23     behalf of Ivan Cermak to dismiss the charges at the close of the

24     Prosecution case against him.

25             All the evidence has been heard at this stage relevant to this

Page 17288

 1     application.  The evidence won't get any better.  But does it leave the

 2     Court with a case that has been proved against the accused Mr. Cermak?

 3     That is the issue here.

 4             Rule 98 bis is a power granted to the Court to be exercised in an

 5     appropriate case.  We submit this is just such a case.  An indicator as

 6     to the kind of test to be applied has been given on behalf of my previous

 7     co-defendant's counsel.  An indicator can also be how accurate have the

 8     assertions been by the Prosecutor in relation to the allegations in the

 9     indictment, how well-founded have they been upon the evidence that the

10     Court has received.  The crucial thing is for the court to assess what

11     exactly is the evidence in relation to the indictment at this stage, not

12     assertions or allegations, but the evidence in the case.

13             I'm going to turn to the paragraphs of the indictment that are --

14     call for a submission such as this.  The first is paragraph 7, which

15     deals with the Article 7(3), command responsibility notion of the case.

16     And there are some universal truths that are well known concerning

17     command responsibility, as well as some specific matters that also need

18     to be considered, in relation to a particular defendant.

19             I'll deal with the universal truths, first of all.

20             There is an need for effective control of subordinates.  Without

21     effective control, there is no duty on behalf of a person to act.  The

22     superior and subordinate relationship between the accused and the

23     perpetrator of crimes, did the superior know or had reason to know that

24     the subordinate was about to commit or had committed underlying crime?

25     Did the superior fail to prevent or punish?  The key to those universal

Page 17289

 1     truths are the superior/subordinate relationship.

 2             There are further aspects to this that need to be considered in

 3     the kind of case that the Court has been it, concerning Ivan Cermak.  And

 4     I will run through those briefly.

 5             Did the superior have material abilities to prevent subordinate

 6     offences or punish subordinate offenders?  The Delic and Limaj case

 7     express that.

 8             Mere influence over people is not enough or even great influence,

 9     or other expressions of influence turning to the Kordic, Celebici, and

10     Limaj cases.  The superior must have capacity to issue binding

11     instruction and enforce compliance with orders.  Coordination obviously

12     is not of that kind of authority.  We turn to the Celebici case for that

13     proposition.

14             An accused if perceived or thought to have command authority,

15     doesn't lead to the conclusion of fact that he had in fact effective

16     control; Celebici Halilovic cases.

17             The ability of a superior to maintain and enforce compliance, not

18     just convince or sway decisions; the Oric case.

19             De jure status does not of itself create a strict liability.  We

20     return to the Oric and Halilovic cases again.  All of the cases state

21     cite there is a need for de facto effective control.  And looking at

22     someone who is a civilian, he is required to a degree of control over

23     subordinates similar to that of a military commander in an analogous

24     position.  We see that in Aleksovski and the Kajelijeli case.  Issuing

25     orders may not indicate actual authority.  That is a very important

Page 17290

 1     matter to bear in mind in this case, see the Kordic, Halilovic, and Oric

 2     case.

 3             Lack of compliance of orders by others may indicate a lack of

 4     authority with the accused.  Look at the Strugar case.  And the types of

 5     orders issued by an accused may be important.  What is their purpose

 6     rather than the mere fact of issuing an order.  Binding combat orders are

 7     different from humanitarian-type orders.  See the Halilovic case, Kordic,

 8     Blaskic cases.

 9             In our submission, those additional factors to the universal

10     truths make common sense to be applied in a case where you considering

11     effective control, and we ask the Court to bear that into in mind when

12     considering the evidence at this stage, in relation to Mr. Cermak.

13             Let me just cite a few passages from a couple of cases here,

14     which drive this home.

15             In the Celebici case it was stated:

16             "Great care must be taken lest an injustice be committed in

17     holding individuals responsible for the acts of others in situations

18     where the link of control is absent or too remote."

19             In the Blaskic appeals decision it was stated:

20             "The appellant did not enjoy or exercise effective command and

21     control over all units nominally subordinated to him."

22             And turning finally on this section of my submissions to the

23     Kovacka appeals:  "Not every position of authority and influence

24     necessarily leads to superior responsibility under Article 7(3) of the

25     Statute."

Page 17291

 1             So let us turn now to paragraph 7 specifically and consider a

 2     number of matters that arise from the language of the paragraph.

 3             In it is cited the need for effective control over members of the

 4     HV units or elements attached to the Knin garrison.  I'm not going to

 5     read all the language out in full, as it would take too much time.  But

 6     let us consider, first of all, in that aspect of the paragraph the

 7     Croatian army units and the allegation that Ivan Cermak had effective

 8     control over all those units specified.

 9             I will remind the Court of the evidence of the Prosecution expert

10     who is an employee of the Prosecutor and was questioned about this

11     paragraph in cross-examination by me.  I put to him at transcript page

12     12990:

13             "You have read the indictment.  I will then paraphrase.

14     Paragraph 7 describes Ivan Cermak as possessing effective control over

15     members of the Croatian army units or elements who comprised or were

16     attached to or operated in the Knin garrison."

17             I read out those units within paragraph 7 of the indictment, and

18     I put to him:

19             "But looking at all these Military District documents, we've

20     looked at a few here which go to a particular issue.  But there are, as

21     you know, thousands, in relation to all those units.  General Cermak is

22     copied in on a handful of matters, isn't he?"

23             The expert answered:  "It is correct.  And I think it is visible

24     through my report that there are very few orders by General Gotovina to

25     the Knin garrison command or the Knin garrison commander during the

Page 17292

 1     time-period General Cermak is the commander of the Knin garrison."

 2             I put to him:  "My question is about General Cermak having

 3     effective control over all those units.  They're all operating every day

 4     in relation to their activities, where they go, what they do, completely

 5     independently and without General Cermak.  That's right, isn't it?  What

 6     I'm putting to is that paragraph 7 of this indictment doesn't fit with

 7     your expert's report."

 8             "That may well be possible," was the answer.

 9             On that passage of the indictment that I read, I then put:

10             "In relation to paragraph 7, which asserts that Ivan Cermak

11     possessed in various structures of power," and I cited the matter from

12     paragraph 7 and when went on to say, " ... in fact, not borne out by your

13     expert's report and indeed all the documents that you have seen, it's

14     right, isn't it?  I'm right."

15             And the answer was:

16             "I mean, I haven't addressed effective control.  In fact, yeah, I

17     mean I haven't addressed effective control, and I haven't seen any

18     material or, I mean, documents on that aspect concerning the role of

19     General Cermak as the commander of the Knin garrison."

20             This was the expert who described himself as an expert on command

21     and control in one of the very first questions that I asked of him in

22     cross-examination.

23             Your Honour, in our submission, the truth was clear in this

24     expert's mind, as to what he had looked at, as to what he seen, that he

25     could in no way positively express a support for paragraph 7 of this

Page 17293

 1     indictment.  It was not founded upon the substance of reality, of the

 2     documents of the case, nor the military function of the Split Military

 3     District.  It was a paragraph inserted into the indictment at an

 4     alarmingly high and overstated way, that, in our submission, underlines

 5     the need for Rule 98 bis to be applied in the Defence of Ivan Cermak.

 6             Let us look, then, aside from what Mr. Theunens admitted, to what

 7     we have seen in the evidence concerning the Croatian military concerned.

 8             In three hours, I do not know whether I have the time to express

 9     all the matters that could be raised.  I will attempt to do so.  However,

10     I ask the Court to bear in mind the very clear cross-examinations that we

11     submit have taken place here, where we have put our case fairly and

12     squarely, and we have produced and analysed the documents in the trial to

13     a level where the Court has a very clear understanding, we submit, of the

14     Defence issues concerning these matters in the trial.

15             First of all, the function in which Mr. Cermak was placed, that

16     of the garrison commander, it is very important for the Court to note

17     that that had no operational function as a part of the military

18     structure.  The role of the garrison commander, in D34, Exhibit D34, is

19     stated:

20             "The garrison HQ commands do not have an operational function and

21     the right to issue orders to Croatian military units except precisely

22     prescribed authorities regarding work, order, and discipline at the

23     garrison headquarters, et cetera."

24             Mr. Theunens was cross-examined by me at length concerning those

25     issues, and I refer the Court to the fact of his agreement with me as to

Page 17294

 1     the nature of the role of the garrison commander.

 2             In relation to the authority within the military of

 3     General Cermak, the Court is alerted to the fact that the Prosecution

 4     have relied on a few orders ostensibly showing authority or command

 5     without putting before the Court the full story of those orders, and we

 6     stress that, because orders seeking supplemental troops to the garrison

 7     issued by General Cermak were actually shown upon more detailed research

 8     of documents within the Prosecution Rule 65 ter collection and exhibited

 9     by us to have been failures of the exercise of his authority and command.

10     And I refer the Court to the issue concerning Captain Jonjic of the

11     logistics brigade, who was ordered by General Cermak to work for him.

12     His commander complained, and eventually General Cermak had to seek the

13     intervention of General Gotovina on that matter.

14             Your Honours, a case built upon scraps of orders that have no

15     context of themselves beyond what they say, in our submission, is a very

16     dangerous way to approach a criminal trial.  This Court, if handled

17     appropriately and correctly by the Prosecution, should have been given

18     the full story in relation to the limitations of the command and

19     authority and control that General Cermak had.

20             We move from there, the Jonjic orders, to the request for the

21     garrison to receive further troops to help in the clearing up of the

22     town.

23             Again, one knows from the evidence that was introduced by the

24     Defence that this was something that required a further subordination of

25     those troops to General Cermak.  He was unable to do it.  And I remind

Page 17295

 1     the Court of my cross-examination of the witness Liborius where the full

 2     story on this matter was put before the Court to show the limitations of

 3     Mr. Cermak's authority.

 4             And what are these orders?  I have described them as scraps of

 5     paper.  And I do that with a sense of justice about it, because we are

 6     dealing here with the command and control of military units alleged to

 7     have committed crimes, and what is being put before the Court are

 8     non-operational orders, as a symbol to support the argument of the

 9     Prosecutor that General Cermak had effective control.  In our submission,

10     they show nothing of the sort, and that is why at the start of my opening

11     I referred the court to the passages from decisions whereby the quality

12     and nature of orders issued has been considered by the courts to be an

13     important feature to demonstrate whether an accused had effective control

14     or not.  The difference between combat operation orders and the

15     difference between orders concerning fish farms, orders concerning men to

16     clear the streets, and the order to receive the assistance of a logistics

17     captain are of a very different nature to the kind of orders that are

18     required to found the foundation in relation to the allegations of

19     serious crimes in this indictment.

20             The other matters, and again I refer the Court to them, is the

21     UNCRO orders.  These have been cited many times by the Prosecutor as

22     being relied upon to demonstrate effective control - and at this stage

23     I'm just dealing with the Croatian military units, but within that

24     organisation one could consider the military police - and it is quite

25     clear that those are the kind of order that is not arising out of the

Page 17296

 1     issues necessary to show effective command responsibility of all those

 2     units within paragraph 7, but they fit into that category of order issued

 3     to assist the international community and are of not the same type or

 4     nature to illustrate the power over the subordinates within Croatian

 5     military units that needs to be proven by the Prosecutor to establish

 6     effective control.  Not only that, one can see from the history of those

 7     documents, again, not put into full context by the Prosecutor, but put

 8     into full context by the Defence, how General Cermak was unable to fulfil

 9     his obligation to help the UN recover those vehicles and required

10     intervention so that his order that he had drafted was reproduced and

11     disseminated to other units within the Split Military District.

12             In summary, if one looks at the documents relied upon by the

13     Prosecutor to establish effective control and command of units, they show

14     that those documents issued by General Cermak were non-operational,

15     logistical documents, and indicative of a non-operational role.

16             Let us consider now the duty to discipline within the Croatian

17     military.

18             Reliance was put upon a document by Mr. Theunens as an example of

19     a garrison commander disciplining a member of the Croatian military,

20     D1001, exhibit, to demonstrate this kind of authority would have been

21     available to General Cermak.  What was missing crucially from the

22     information before the Court and which I cross-examined him upon was the

23     fact that that was an example of the garrison commander in Split

24     disciplining his own subordinate.  Transcript pages 12955 to 7.

25             Your Honours, in our submission, the Court has to be concerned

Page 17297

 1     about a case structured and put before it where such glaring inaccuracies

 2     have been used to support the allegations.  In our submission, that

 3     should -- could cause the Court at this stage to have serious alarm bells

 4     ringing, concerning the nature of this Prosecution against Mr. Cermak.

 5             Let us turn now to the Code of Military Discipline.  That, at

 6     Articles 19 and 27, gives the responsibility of General Cermak as with

 7     any other commander within the Croatian army to discipline a subordinate.

 8     Under Article 26 there is the power to discipline an individual brought

 9     before him not of his organic unit, in which required and necessary

10     measures are desirable or needed to maintain order and discipline.  But

11     as far as the matter goes, that is it.  He can discipline his

12     subordinates.  There is no evidence in this case that his subordinates

13     have committed any of the crimes on the indictment, and the Court is

14     reminded of the evidence in support of his subordinates, which are the

15     manning documents, issued periodically to demonstrate the number of

16     soldiers within each unit of the Split Military District.  The document

17     filed for June the 28th, 2005 [sic], before Operation Storm demonstrated

18     there were three people.  The document filed at the end of August 30th of

19     1995, after Operation Storm, showed the garrison had nine soldiers within

20     it, and the same number at the end of September 1995.

21             So that is it, on the level, to show the extent of the authority

22     within the garrison of General Cermak.  Those nine subordinates, none of

23     whom have been proved to have committed any of the crimes alleged.

24             Court will be reminded of the many documents within the

25     Military District concerning operations, communications, steps to be

Page 17298

 1     taken by units, et cetera, none of which were copied in to General Cermak

 2     and demonstrate that he was part of the overall structure with the

 3     necessary position to have effective control over those units.  It was

 4     conceded by Mr. Theunens that for any military entity to function, there

 5     was the need for reports, there was the need for lines of reporting,

 6     there would be orders issued, there would be the means of communication.

 7     It was quite clear that within the documents that we have seen that

 8     General Cermak was only ever an occasional receiver of such information.

 9     Well, how, we ask the question, can any effective control be exerted over

10     those units in paragraph 7 with that kind of structure and establishment?

11             We were looking forward to hearing from General Pringle, and we

12     were prepared to cross-examine him on the materials at our disposal that

13     had been put before Mr. Theunens.  That opportunity having been denied,

14     the Court is left with Mr. Theunens' evidence on the matter, and, in our

15     submission, it clearly underlined the accuracy of our submission.

16             All those orders that the Court will have had referred to or

17     seen, referred to in Mr. Theunens' report or seen during the evidence

18     itself, none of the operational orders can be said to have been forwarded

19     or included as information to General Cermak.  One just has to look at

20     the weekly and other reports that were submitted.

21             What the Court does know, however, from evidence in this case,

22     and that is an indicator as much as anything else of the nature and role

23     that he had within the events outlined in this indictment was that he was

24     undertaking matters which were more closely related to the civilian

25     dimension of life in Knin than the military life in Knin.  And that is a

Page 17299

 1     very important distinction, which the authorities of the Tribunal have

 2     pointed out, and at this stage, this Court is quite clearly in possession

 3     of a sufficient amount of information to determine that they are able to

 4     make a finding that his role was entirely, as described by him in his

 5     interviews, as described by countless witnesses, his role was the

 6     normalisation of live in Knin, coordinating civilian authorities which is

 7     one of the doubts of a garrison commander within its regulations, with

 8     the role of helping establish civilian life, and the plethora of orders

 9     and letters that indicate that that was how he spent his time, in our

10     submission, clearly demonstrate his role and the extent of his authority.

11             The fact that members of the international community wrongly

12     perceived him to be a military governor or in charge of the whole area,

13     and in charge of units does not prove the case against him.  This Court

14     has been able to look behind the extent of the knowledge that

15     General Forand, others had at the time, and seen the inner workings of

16     Knin, Knin civil life, as well as the Knin military structure through the

17     Split Military District, as well as the Croatian military structure, so

18     that this Court is not bound by the impressions held at the time, and I

19     don't say that they weren't genuine impressions.  I accept them entirely

20     as being sincerely held impressions of those witnesses called by the

21     international community.  But those witnesses, virtually to a man,

22     accepted that they did not know enough or sufficiently about the workings

23     of either the Croatian government, the Croatian military, or Croatian

24     civil life to actually be in possession of knowledge that would be safe

25     for this Court to determine the matter upon.  Even the fact that they may

Page 17300

 1     have been believed that Mr. Cermak held himself out in such a position is

 2     not determinative of the matter.

 3             This Court has seen the evidence that was in operation at that

 4     time that clearly defined what he was doing, what he could do, and what

 5     he couldn't do, so when he said to General Forand, We will issue an order

 6     to return your vehicles and have this matter investigated, the fact that

 7     that was said by him is not necessarily determinative of the issue of

 8     actual authority and control.  Because Your Honours know that behind that

 9     statement lay a different picture.  It actually concealed a picture of a

10     man issuing orders for banks, bakeries, trout farms, accommodation,

11     logistical orders, and his very limited orders that he did issue in

12     relation to the matter of the theft of UN vehicles were the only extent

13     of those orders of a similar nature.  And that's very, very important,

14     Your Honours, because even though he may have held himself out or people

15     had expectations of him, the fact of the matter is that that does not

16     determine the matter.  And if Your Honours were not in possession of

17     other information, other evidence in this case that threw a light upon

18     the, truth you would be able to disregard my submissions.

19             But, clearly, in the evidence in this case, we have been able to

20     present to you documents and evidence that showed the true extent of that

21     authority.

22             JUDGE ORIE:  Mr. Kay.

23             MR. KAY:  And I remind the Court that several --

24             JUDGE ORIE:  Mr. Kay, I'm looking at the clock.

25             MR. KAY:  Yeah.

Page 17301

 1             That several international witnesses all expressed, and can you

 2     see in those reports that they were writing at that time, doubts about

 3     whether he could deliver what he said he could deliver.  In our

 4     submission, this impression evidence, for that is what it is, has been

 5     countered by the truth and the facts of the evidence that shows

 6     otherwise.

 7             And in those circumstances, Your Honour, I have reached a natural

 8     break, and it's quarter to.

 9             JUDGE ORIE:  Thank you, Mr. Kay.

10             Before we adjourn, just two brief matters.  The first is that I

11     inform the parties that the request for certification for an appeal to

12     the clarification issue has been signed this morning and has been filed

13     this morning, granting a certificate.  That's one.

14             Second, without, at this moment expressing any opinion about

15     whether Rule 98 bis allows for a partial acquittal within a Count, even

16     if that would not be possible, that, of course, does not prevent the

17     Prosecution from considering whether all elements in a Count or all

18     offences charged within a Count could stand.

19             Mr. Misetic has given you a long list of persons who -- for whom

20     there is evidence, for example, that they died, but that other evidence

21     would suggest that it may have been suicide rather than murder.  We have

22     heard of hospital patients, we have heard -- at least evidence has been

23     presented on persons that, as the Defence evidence suggests, may have

24     died outside the territorial scope of the indictment.  The Chamber would

25     very much appreciate if the Prosecution would pay serious attention to

Page 17302

 1     specifically those cases mentioned and to see to what extent it still has

 2     a firm -- I'm not talking about the Counts as a whole, but in these

 3     specific cases, whether the Prosecution takes the view that it is very

 4     likely that the Chamber would be convinced that, for example, this person

 5     did not commit suicide but was murdered, to seriously think about these

 6     matters so as to be able to focus, if there will be any Defence case, to

 7     focus on those cases where not any strong suggestive Defence evidence

 8     exists.

 9             We will adjourn until tomorrow, Friday, the 20th of March, 9.00,

10     in Courtroom III.

11                           -- Whereupon the hearing adjourned at 1.49 p.m.,

12                           to be reconvened on Friday, the 20th day of March,

13                           2009, at 9.00 a.m.