Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17303

 1                           Friday, 20 March 2009

 2                           [Rule 98 bis]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.02 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             Mr. Kay, are you ready to continue your submissions under Rule

13     98 bis?  By the way, the Chamber received in writing citations you've

14     referred to at certain transcript pages.  We do not consider to be a

15     filing but just an aide-memoire to have this at hand easily for us.

16             MR. KAY:  Yes, I'm grateful Your Honours received it.  Thank you

17     very much.

18             Your Honour, I will now return to the submission under

19     Rule 98 bis on behalf of Ivan Cermak.

20             Yesterday I had reached the stage where I was dealing with the

21     Article 7(3) allegation within the indictment, principally arising from

22     paragraph 7 of the indictment, and I had dealt with the issue of the

23     subordination of Croatian units as cited in the indictment with -- under

24     Mr. Cermak.  I'm now turning to the military police, and I will then,

25     after that, deal with the civilian police, in relation to this same

Page 17304

 1     issue.

 2             The military police.  Your Honour, it is clear from the hierarchy

 3     of the structure of the military police that General Cermak, as the

 4     garrison commander, was not included within the de jure organigram.  If

 5     you look at D785 to 7, you will see there those exhibits where the

 6     structure of the military police is set out.  It is quite clear that the

 7     military police orders that the military police structure, as it operated

 8     in Knin at that time, did not include General Cermak within its

 9     functioning.  This Court has seen a large number of exhibits emanating

10     from the military police administration, issued by General Lausic,

11     emanating from the 72nd Battalion, under the control of either

12     Major Juric or Colonel Budimir.  None of those documents are referred to

13     nor include General Cermak.

14             You have also seen documents relating to the Knin company that

15     was formed on the 5th of August established for the newly liberated

16     territory.  Again, not a single document within the workings and

17     structure of that unit which is particularly cited in paragraph 7.  No

18     documents relating to General Cermak.

19             We had called as a witness a man called Dzolic who was the

20     commander of the Knin company of the military police at some time from

21     the 5th of August to the 12th of August.  Prosecution had called this

22     witness specifically on the issue of whether the Knin company was at any

23     time subordinated to General Cermak.  What is interesting in the

24     structure of their case against this accused, that if the Court looks at

25     his statement, P875, the Court will see that in his original interviews

Page 17305

 1     none of the orders from General Cermak, as they have been described, to

 2     the military police were actually put to that witness, so that he, as a

 3     member of the Knin company, was never asked to lay a foundation for the

 4     central proposition.  In the Prosecution pre-trial opening brief, as well

 5     as their opening address, the contents of their expert's report as to

 6     whether he was subordinated to General Cermak.  None of those orders, and

 7     they are the famous UNCRO orders that the Court will have well in mind,

 8     P513, D788, P512, D303, D503, P509, none of them were put to that witness

 9     before he gave evidence here to establish, first of all, whether he had

10     received them, and what his position on those documents were.

11             Now, I don't know how these statements arise and how they're

12     taken by the investigators, but it is clear that the Prosecution were in

13     possession of the knowledge of those documents right from their first

14     interview with General Forand.  Why was there no explanation in the

15     statement about that matter?  Why was it that at paragraph 37, a rather

16     woolly expression, the kind of expression that alerts a Defence counsel

17     that there is something up.  Why was there this expression?

18             "The way I understood it was that I was still under the command

19     of Colonel Budimir but that I was also under the command of General

20     Cermak, and I was to obey any order that General Cermak gave me."

21             Well, that sentence puts an Defence counsel immediately on a

22     situation of alert, because the expression is odd, what it means is odd,

23     and no one is grasping the nettle here in this statement and saying, What

24     about this order?  This order?  This order?  Those orders that perform

25     the very basis of the Prosecution case against General Cermak.

Page 17306

 1             So if we look further into his statement when he gives an example

 2     of two trucks of the international Red Cross having been stolen,

 3     paragraph 44 of P875, what does he say?  "Cermak and me at the meeting,

 4     and he told me that he had been informed by the international Red Cross,"

 5     and so Mr. Dzolic went on to inform the military crime police.

 6             Paragraph 45:  "I was called to Cermak's office like this on two

 7     or three occasions."

 8             He refers to the 9th August.  "And he told me to go and visit.

 9     He told me to record any incidents of burning that I witnessed."

10             Interesting about this is the way the word "order" is not used;

11     it's telling.  When the witness came and give evidence viva voce before

12     this Court and was cross-examined by the Defence, he informed the Court

13     that he was not subordinated, a key word in relation to this trial, to

14     General Cermak, and in relation to those UNCRO orders that form the

15     foundation of the case against him, and by that I mean against

16     General Cermak, he said:  "I, first of all, haven't seen any of the

17     orders," that were put before him, transcript number 9020 up to 9025, and

18     he said at 9028 he "was not obliged to follow orders of this kind as

19     orders; however, as information that something had occurred."  And that

20     is the very point of this case, because, on the one hand, the Prosecution

21     are saying in their indictment that General Cermak took no action in

22     relation to reports of crimes to him.  Here in paragraphs 44, 45, 46 of

23     that witness's statement, he clearly demonstrates that at the meetings

24     General Cermak had in the early stages in Knin when General Forand

25     informed him about burning, about houses being set on fire, and that the

Page 17307

 1     military were involved, here you have it.  General Cermak passing that

 2     information on, not because he was in command, but because he was passing

 3     it on as something that, as a responsible military officer, he should do.

 4             How does this set as a snapshot of evidence with the case against

 5     General Cermak?  The witness himself never asked whether he was

 6     subordinated to him.  The witness, never being shown these documents.

 7     And then when he is shown these documents, he gives a perfectly

 8     reasonable explanation that fits with the recording by him in his

 9     statement of being told to go and see what was happening.  How does this

10     also set with the allegation that General Cermak was in Knin denying

11     crimes, taking no steps in relation to crime, minimizing crimes, and

12     member of a joint criminal enterprise?  Well, if he is doing these steps,

13     how is he within the joint criminal enterprise?

14             I refer to that here as the second part of my submission will be

15     concerned with the Article the 7(1) allegations in the trial.  But

16     because we're here at the moment, I refer the Court to it, to forecast

17     what is to come.

18             The other foundation that the Prosecution have relied upon for

19     command of the military police has been documents adduced prior to

20     Operation Storm by their expert witness Mr. Theunens, all of which did

21     not tell the full story as to the powers and responsibilities of a

22     garrison commander.  It was of interest to note that no documents after

23     Operation Storm were produced to show the workings of the Split garrison,

24     which was the particular garrison he was using as a comparison.

25             Next, as I referred you to yesterday, he gave an example of a

Page 17308

 1     garrison commander disciplining a member of the Croatian military, and it

 2     was quite clear from the documents that we produced that the full story

 3     was that that was a subordinate of the garrison commander at Split,

 4     Colonel Zoricic.

 5             The other foundation that the Prosecution rely upon are the

 6     garrison regulations, as well as order and work and discipline in the

 7     garrison, which was an order passed in 1993 and put to General Lausic who

 8     was supposed to give evidence in support of the Prosecution theory.

 9             It turned out that General Lausic was unaware of the 1993 order

10     concerning work, discipline, and organisation in the garrisons.  Until he

11     had been produced documents for him to review by the Prosecution

12     investigator, Mr. Foster, the day before he gave evidence, he was unaware

13     of that particular order.  It was noticeable when he gave his evidence

14     in-chief that Mr. Tieger took him very rapidly through the document and

15     just asked him whether it was consistent or inconsistent with the rules

16     of the military police of 1994, Article 8, and Article 9; Exhibit P880.

17     He said consistent.  What that means, I'm not entirely sure I understand.

18     But when I cross-examined him and pointed out the non-operational nature

19     of the garrison commander, it was clear he accepted that the garrison

20     commander had only a very limited responsibility with the military

21     police, and that was because the garrison was concerned with the internal

22     functioning of an area where the military were based and the regulations

23     and rules were designed to enable the army to function in an orderly way,

24     as amongst itself and the local community, and that, in those terms, that

25     gave the garrison commander his right to enforce his regulations.  And

Page 17309

 1     the Court will recall my cross-examination of Mr. Theunens and the

 2     speeding over the weak bridge.

 3             Looking in more detail now at the relationship, as alleged,

 4     between General Cermak and the military police, one considers

 5     specifically the Knin company.  General Lausic conceded that there had

 6     been no document that he had seen which showed that the Knin company had

 7     ever been subordinated to General Cermak, as would have been required by

 8     his order of the 14th of August, 1995, in which he told the commander of

 9     the 72nd to subordinate a company to the highest ranking Croatian

10     military officer in the area.  I don't have time here to go into the

11     niceties of what the rules say concerning regular tasks, daily tasks,

12     daily operational command, a phrase that General Lausic used, and the

13     significance and variance of these expressions.  But in our submission,

14     they are important and we ask the Court to consider them, because we are

15     discussing here the exercise of valid acts or not of subordination.

16     Also, there is the issue, the issue concerning the position of the

17     highest ranking officer by function in the area of responsibility.  That

18     key phrase was omitted from the first translation before this Court.

19     After Dzolic gave evidence, the version of the 1994 military police rules

20     was amended to include that important word that had been omitted.  Lausic

21     conceded that General Cermak would not have been the most senior

22     commander by function in the region.

23             Not only that, when you go to the documents that have been

24     produced upon the Knin company, I've already referred to the fact that

25     there is no sending on or copying or including of General Cermak or the

Page 17310

 1     Knin garrison into any such orders, but you look at the Knin company in

 2     operation after the 12th of August.  Orders issued by Colonel Budimir

 3     appointing a Lieutenant Orsulic as the commander of the Knin company and

 4     also including the rotation of the units that constitute the Knin

 5     company, that was not referred to General Cermak.

 6             How can you command someone if you don't know who they are?

 7     These are basic principles.  These were not internal documents.  These

 8     were documents of appointment.  They're also the only thing that the

 9     Court has to go on.  None of them refer to General Cermak.  The point was

10     made on a number of occasions that he had to request others to have the

11     military police provide a service to him.  The Court will recollect the

12     request for men in relation to his personal security.

13             If General Cermak was in command of the Knin company, he could

14     have just ordered that.  All the evidence of the system in operation, as

15     well as the testimony of the witnesses, have defied and contradicted this

16     case that has been brought against him.

17             I don't have time to go into it in a very precise and detailed

18     way, but I refer the Court to our cross-examination of the witnesses

19     Lausic, Theunens, Dzolic, and in a brief way, Simic, although he was not

20     directly involved with the Knin company.

21             The Court will recollect the daily reports.  They were a

22     curiosity because they were referred to the Split garrison commander, and

23     the reason for that, as explained by General Lausic, was because the

24     Split garrison had a duty service.  And from there, they were able to

25     inform the commander of the 72nd, Colonel Budimir, as to incidents that

Page 17311

 1     had happened.  The Split garrison command was in the same command

 2     building as the 72nd command.

 3             Again, none of those documents referred to General Cermak.  And

 4     this Court has been asked to accept that this man, in his position, was

 5     in command of all those units, including the military police, in this

 6     area.  In our submission, it does not add up and make sense, and there is

 7     no forensic evidence to support the assertions.

 8             What we say is this:  The Prosecution took a theory of this case

 9     from the international witnesses.  Those international witnesses had

10     limited knowledge.  They produced some evidence and documents; hence, the

11     orders relating to the recovery of the UNCRO vehicles.  But, in fact, if

12     this investigation, prior to trial, had concentrated on the reality

13     rather than the hypothetical and looked in a more in-depth way into the

14     workings of the Croatian military and civil system, it would have found

15     the answers that we have provided during this trial as to how the system

16     worked.

17             What can be the reason for an investigator not putting the key

18     military police orders that are -- that were the signature of

19     Mr. Theunens' testimony.  Many times when I asked him questions he would

20     refer back to the UNCRO orders.  And, Your Honour, Mr. President, said:

21     "Yes, we know about the UNCRO orders.  Is there anything else?"

22             Every time that signature tune was played.  But what is curious

23     is, for the foundation of this case, that signature tune needed to be

24     played to the people in possession of the actual knowledge, which were

25     the Croatian witnesses.  To have a court like this that receives evidence

Page 17312

 1     where one party chooses to ignore evidence emanating from a principal,

 2     the principal source for the basis of this trial, being the Croatian

 3     military system, its witnesses, how the system worked, before it

 4     developed a case theory, in our submission, is utterly astonishing.

 5             Let me now turn to the civilian police, which is the third arm of

 6     the Croatian system over which it is alleged Mr. Cermak had effective

 7     control.  Well, again, through us, the Court were able to see organigrams

 8     of the police structure - Exhibits D231, Prosecution put one in,

 9     Exhibit P962, as to how the system worked.  Witness 86 gave a clear list

10     of important people in the Knin area over the months of August and

11     September from the headquarters either in Zadar-Knin police

12     administration, Split-Dalmatia police administration, or from the

13     ministry in Zagreb, who were down there working with him.  Smiljan Relic,

14     transcript reference T5509; Franjo Djurica, 5531; Mr. Gledec, transcript

15     5512.  I will just burn time if I list all those people in the hierarchy.

16     Benko, Nad, Tomurad, Kardum, Batanga, Cetina, Moric, all who came down to

17     Knin.

18             Now, if Mr. Cermak was in effective control of the civilian

19     police there would be something arising from those visits by those people

20     connected to him.  Not a single thing.  And in fact the reason for this

21     is quite obvious.  The Croatian structure of government and its organs

22     had a clear division between the Ministry of Defence, the Ministry of

23     Interior, and they were separate hierarchies, and each relevant witness

24     said they were from a separate hierarchy and the military could not

25     control them.

Page 17313

 1             But let me just turn to that theme that I mentioned in relation

 2     to the military police.  If this case has been built and constructed from

 3     the theories of the international witnesses who may have had great

 4     influence on the Prosecutor in preparing this indictment and its

 5     allegations, you are going to make that kind of mistake in your

 6     allegations against an accused, because the fact of the matter is not a

 7     single one of the international witnesses from General Forand down to the

 8     human rights team leaders, such as Mr. Flynn, all of them confessed to

 9     not knowing how the Croatian system operated.  But if you take a case

10     theory from that background, you are bound to start to make mistakes in

11     the construction of a case and an indictment when you select an accused.

12             Let us again look at the background documents, many emanating

13     from the Kotar-Knin police administration, Zadar-Knin police

14     administration, from Mr. Moric as the assistant minister for the Ministry

15     of Interior in Zagreb, none of them copied in to General Cermak.  None of

16     them in any way reflecting that he had an effective control over the

17     police.  How can you have a system operating if someone who has an

18     effective control such that the institution is subordinated to him, if he

19     doesn't know what is going on, if is he not a part of the operation of

20     that machinery.  We introduced into this case hundreds of documents

21     showing the system at work, from the clearance of the terrain, the

22     setting up of check-points, inspections, controls, joint activities

23     between UNCIVPOL and the local police.  Nowhere was Mr. Cermak to be

24     found.

25             So how is it that this allegation would arise?  Well, the

Page 17314

 1     pre-trial brief has that signature tune of the UNCRO orders issued by

 2     General Cermak, in relation to the loss of vehicles, et cetera.

 3             So what was said about that by the key witnesses?  Because those

 4     key witnesses have to support this theory by the Prosecution, if they are

 5     to have any chance of establishing criminal liability, and we say that

 6     this issue demonstrates why, again, this case fails.

 7             Interestingly enough, Witness 86 was asked about this matter, and

 8     one refers to his statement.  And, again, those UNCRO orders were not put

 9     before that witness in his statement.  Not there.  Why not there?  In

10     fact, that witness, in his statement said, "General Cermak never gave me

11     direct orders; however, sometimes conclusions were reached."

12             Paragraph 65 of Exhibit P487.  "I did feel, however, that's was

13     answerable to him."  Well, how on earth does this go any -- any part or

14     step towards establishing a subordination of effective control?  What is

15     going on here in the creation of this case against this accused?  Why was

16     it gone so wrong?  Why is the case theory absolutely in contradiction to

17     the evidence that is there?

18             Did the evidence get any better in cross-examination?  Answer, it

19     got better for the Defence but worse for the Prosecution.  Because,

20     unlike the Prosecution, we put every single order to the witness, and he

21     said, "this was information."  "This was information," he said.  "I

22     didn't have to take orders."

23             Well, it beggers belief that we're standing here spending all

24     this money on this trial, and we have such fundamental problems in the

25     case theory, its presentation, and the evidence.  If I am addressing at

Page 17315

 1     the close of the Prosecution case the Judges about such fundamental

 2     issues as this.

 3             They were -- I didn't have to act on them.  Well, there we are.

 4     He chose to express for the first time here fully how he viewed the

 5     situation, and the Court has now received the evidence.  That is the

 6     purpose, as I understand it, of these proceedings, is to extract from a

 7     trial that shouldn't be happening against an accused, an accused wrongly

 8     -- wrongly charged and put on an indictment in relation to crimes such as

 9     these.

10             Looking at that statement again, Defence counsel reading it

11     immediately would be alerted under Exhibit P487 and Exhibit P489 about

12     how the content, in relation to the Prosecution case theory, and what

13     this witness had to say was never explicitly dealt with.  It's all around

14     the edges.  It is giving an impression, the kind of impression the Court

15     heard in opening from my learned friend Mr. Tieger.  When you dig and

16     look at it, it does not add up.  Not only that, there was corroboration

17     for this evidence.  Court will remember two documents that were produced

18     by the Defence from the Knin police station referring to the UNCRO orders

19     that had been issued by General Cermak.  How, then, was that described?

20     Commander Mijic, in the first document, which was a very poor

21     reproduction, refers to the order.  The second document clearly states a

22     complaint has been filed by the commander of the Knin garrison concerning

23     the UNCRO vehicles.  A complaint.  Well, you're damned if you do, and

24     you're damned if you don't, in this case, it seems to me.  You pass on

25     and report crimes are happening, and then it is said that you have a

Page 17316

 1     command authority, effective command.  You don't do it, and you're

 2     accused of not reporting, covering up, minimizing, denying crimes.

 3             The Court, in our submission, has to look very carefully at this.

 4     This cannot be an impossible situation, a Kafka nightmare, where if you

 5     report it's said that you have a control.  If you pass on information,

 6     you have control; if you don't, you're apparently covering up.  And we

 7     refer the Court very carefully to those passages that indicate that there

 8     was no effective control and superior/subordinate relationship between

 9     General Cermak and the local police in Knin.

10             Your Honours, that's a halfway point for me now, as between

11     Article 7(3) and Article 7(1) in my submissions, and I will now turn to

12     deal with Article 7(1), which is the joint criminal enterprise

13     allegation.

14             A few general matters.  A plurality of persons, more than one, to

15     include the accused is required to establish a joint criminal enterprise.

16     That has as a basis for its proposition the fact whether there was or not

17     a joint criminal enterprise.  This is a case which has a clear background

18     of a revenge motive by the civilian population, individual military

19     personnel and others against those Serbs who had remained in the Serbian

20     Krajina, as they called it, and who had, themselves, expelled large

21     numbers of Croatians from this area in 1991, 1992, and afterwards, and

22     caused them to live in a reduced version of their country, had kept them

23     in a bottleneck, unable to get to their homes, and, indeed, to impose

24     great hardship upon them.  This background is very clear in this case.

25     And in our submission, this Court has to be satisfied that those named

Page 17317

 1     from President Tudjman, Minister Susak, General Bobetko,

 2     General Cervenko, the other members from the clarification schedule,

 3     Norac, Ademi, Crnjac, Lausic, Jarnjak, Rebic, Radic, that they, one of

 4     them, had established a joint criminal enterprise, which included an

 5     accused.  Well, how clear and definite is that evidence?  We adopt the

 6     submissions of the legal team for General Gotovina which were heard

 7     yesterday.  But we say with some force, looking back at this trial, what

 8     evidence has been produced that establishes so that you are satisfied, so

 9     that you are sure of the existence of a joint criminal enterprise.

10             Ambassador Galbraith was referred to.  He was a man who had

11     meetings.  He was a man not from the Croatian government.  He was a man

12     who spoke to a large number of people and gave his impressions.  Is that

13     evidence that is capable of establishing beyond reasonable doubt of the

14     existence of a JCE?  We submit no.  There is just as much in this case a

15     reasonable inference that civilians, off-duty military personnel,

16     combinations of civilians and military personnel.  Perhaps military

17     personnel ganged up together, going off to take revenge, loot, do what

18     they do.  But where, where is the evidence that establishes that this was

19     a planned joint criminal enterprise beyond reasonable doubt?

20             Our submission is this is yet another case theory that came about

21     from internationals, had to be adopted by the Prosecution, and was

22     adopted.  And as part of those other points I have made today, these

23     matters have been driven from the outside, not the inside on this case.

24     And that is why, when you look back over the work of the last year and

25     seek an answer as to where is the JCE?  Where can we find it?  It's not

Page 17318

 1     there.  There are thousands of contradictory points to establish that

 2     there wasn't an JCE.  I have pointed out to General Cermak reporting to

 3     Dzolic to go and see about fires that were happening outside Knin on the

 4     9th of August, reporting him -- sending him to go and look because these

 5     matters had been reported to him by General Forand.  Again, it doesn't

 6     add up, and if there is an reasonable inference the other way, this Court

 7     is not bound -- and this Court should not - because a reasonable doubt is

 8     there.  Not a speculative doubt - this Court should not just plump for

 9     the Prosecution theory as against the other evidential foundation which

10     indicates otherwise.

11             Our submission to the background of this, it's not a speculative

12     doubt that has been raised principally by the Gotovina legal team in

13     challenging these issues; it's not a speculative doubt; it is a

14     reasonable doubt.  And, therefore, at this stage defeats the Prosecution

15     allegation.

16             Just as a point to add, I refer the Court to the Brdjanin appeal

17     decision at paragraph 413, where it is stated:

18             "In order to hold a member of a JCE responsible for crimes

19     committed by non-members of the enterprise, it has to be shown that the

20     crime can be imputed to one member of the JCE and that this member, when

21     using a principal perpetrator, acted in accordance with the common plan.

22     The existence of this link is a matter to be assessed on a case-by-case

23     basis."

24             And as was said yesterday, we start from the premise of the

25     lawfulness of the operation.  That was conceded by Ambassador Galbraith.

Page 17319

 1     And then we move from there to saying, Well, where did this joint

 2     criminal enterprise, then, come about?  And was it ever there?  Our

 3     submission is, evidence clearly indicates no.

 4             And referring the Court to the Haradinaj appeals decision,

 5     paragraph 137:

 6             "It must be proved that a common purpose, understanding, or

 7     agreement exists between the participants that they will commit a crime

 8     within the Statute."

 9             Now, I don't want to spend too much time here on the legal

10     definitions; that is a matter for the Court.  And I know they are

11     experienced Judges fully resourced in relation to the law.  And at this

12     stage this is very much a evidential submission that the evidence is

13     simply not there against General Cermak, and I will start with some

14     overall matters, in relation to him.

15             There's been positive evidence concerning General Cermak that he

16     wasn't part of any joint criminal enterprise.  That has been seen through

17     the international witnesses, stating his door was always open.

18     General Forand said that; transcript 4236.  Always willing to cooperate;

19     that was said by General Leslie.  Many others.  The Court will be aware

20     of the assistance that he had given the UN, and the Court will remember

21     that that was a specific part of his function as evidenced through the

22     presidential transcript, when there is discussion about Knin, and it was

23     said by the President, Well, General Cermak has gone down there to help

24     the UN.  And that was part of his role.  And that's what he was carrying

25     out.  And one can see that he, at the start, goes to the camp where the

Page 17320

 1     displaced persons have grouped around the UN.  There is an big problem

 2     for the international community, as well as the Croatian government as to

 3     what had happened with the collection of people at the UNCRO barracks.

 4     He meets the people.  They seem, from the evidence, we haven't had a

 5     precise quota, I don't think, that they are mainly Serbs who is have gone

 6     there and Serbs who were living there under the previous regime.

 7     General Cermak asks - Exhibit P388 - "for a complete list of refugees, so

 8     I can see problems, see passes are issued to all who want to leave the

 9     camp and go on living in the area of Knin."

10             Exhibit D311 General Cermak assists the UN in escorting

11     51 displaced persons from other UN camps in Sector South to the UNCRO

12     barracks.

13             Exhibit D38, General Cermak telling the Serbs in the UN camp to

14     stay, not to leave Croatia.

15             Exhibits P409, D146, D29, evidence of General Cermak telling

16     members of the international community he wanted people to remain in

17     their villages.

18             There is the document that he gave to the Serbs in the camp

19     giving them rights, emphasizing rights, saying what their citizens'

20     rights under Croatia would be.

21             This was not something that a person who wanted the forcible

22     displacement of these people from the region would be doing, in our

23     submission, if that was the purpose he attached himself to and was

24     carrying out.  I'm starting here because there's no evidence at all of

25     General Cermak, when he was Mr. Cermak before the 5th of August, being

Page 17321

 1     involved in any shape or form in the acts, meetings, discussions,

 2     planning of events before Operation Storm.  He comes into this case

 3     absolutely distinctly, from the 5th of August, and it is at that moment

 4     that he arrives as garrison commander into the picture.  So absolutely no

 5     evidence of anything before.  Very important, in our submission.  This is

 6     a man put into the situation after the operation has taken place, and if

 7     one is to judge by his steps what he does, if he was a member of a joint

 8     criminal enterprise, would he be going so publicly and so bold into the

 9     UN camp, holding a press conference publicising the fact that these

10     people should stay.  If that's the plan, and he is doing this on national

11     television, the Court has seen video evidence of him speaking in the

12     camp, and at a press conference, telling people to stay, that they will

13     be protected.  Why would be doing that --

14             JUDGE ORIE:  If, Mr. Kay, something is moving and is producing

15     some noise.  I don't know what it is.  It is perhaps close to your

16     microphone.

17             MR. KAY:  I'll put the microphone that way.

18             JUDGE ORIE:  Then your voice still can be heard by the

19     interpreters and the transcriber, then it's fine.  Please proceed.

20             MR. KAY:  I won't ask if I need a microphone.

21             Why would he be going on Croatian television and promoting these

22     ideals if he was in a joint criminal enterprise?  When you look at his

23     function in the scale and scope of things if he was part of a plan to

24     seek the removal of these people from the area.  One could think of many

25     other steps, if he was in a plan, that he would be taking, and it

Page 17322

 1     certainly wouldn't be issuing statements, encouraging them to stay.  At

 2     the least, he would keep his mouth closed about it.  But, no, the

 3     evidence indicates otherwise.

 4             This Court has to be sure that that was some kind of elaborate

 5     cover-up if it is to ignore and not accept his acts and conduct at the

 6     time that plainly contradict the joint criminal enterprise.  And, look,

 7     this allegation was made in the case that he was denying crimes and

 8     effectively ignoring General Forand.  Well, in fact, we have put into the

 9     Court, many statements from General Cermak where he acknowledged crimes

10     were taking place.

11             The fact that he doesn't agree it is an organised military plan

12     but says it is civilians, or it is terrorists, or whatever other reason,

13     is not a ground to condemn a man because he doesn't agree with the point

14     of view of others from outside his country.  This is not some kind of

15     test as to whether you get it right or wrong.  He admitted, throughout

16     those human rights reports, to General Forand, to everyone, that there

17     were crimes taking place, and he condemned them.

18             But what seems to have happened here was that there was a belief

19     that this man was able to do far more than he could actually achieve and

20     deliver and was empowered to deliver.  And that's what this case is

21     about; that that impression was wrong.  He was a man who had, no doubt,

22     respect from the international community.  But there became, as one can

23     see, through the thread of evidence, a frustration that what he said

24     would happen, that it would stop, didn't.  That what he said would take

25     place and certain people would be arrested may not have happened.  But

Page 17323

 1     that doesn't mean to say that he is responsible for those crimes taking

 2     place, nor if the basis of his authority has been misunderstood,

 3     misjudged, maybe because of his own steps in actively dealing with the

 4     United Nations, helping them.  It's not that that should condemn him.

 5     It's whether or not the acts and steps he was taking were part of a joint

 6     criminal enterprise.

 7             And we have this issue right at the start over whether he's

 8     military governor, or Zborno Mjesto, and the garrison commander.  In a

 9     way, the titles don't matter.  This Court is judging him by what he did.

10     And when the Court is reminded of him being publicly stated in a

11     newspaper interview on the 7th of September condemning the taking of

12     apartment, houses, condemning crimes, how does that fit with him wanting

13     those crimes to take place?  He didn't have to do that.

14             It was clear that the UN internationals were frustrated because

15     General Cermak couldn't deliver his promises.  And gradually they were

16     able to form the point of view that he didn't have real power.  They had

17     doubts about him.  And that's the point, Your Honour.  He was down there

18     helping them as the point of contact in front of them, and so he,

19     naturally, as the point of contact, messenger or the receiver of

20     messages, was the person who became condemned because results were not

21     happening.

22             In our submission, that is quite unfair to him and should not be

23     how a case is judged.

24             I'll remind the Court here of the terms of the paragraphs of the

25     joint criminal enterprise alleged against him, starting at

Page 17324

 1     paragraph 19(a) just to see what we have had to face during this case,

 2     whether it makes sense, whether it adds up.

 3             Let's look at 19(a):

 4             "Issuing orders and directions concerning the administration and

 5     operation of the Knin garrison."

 6             How does that add up to being steps taken in furtherance of a

 7     joint criminal enterprise?  How can issuing those orders that are all

 8     logistical, non-operational, even if you call telling Captain Dzolic to

 9     go and see why fires are taking place on the 9th of August, how on earth

10     can any of that amount to being acts in furtherance of a joint criminal

11     enterprise concerning the administration an operation of the Knin

12     garrison?  Well, we have combed and put forward virtually every scrap of

13     paper, as the Court knows, from the 65 ter list and documents that we

14     have found, and we asked this question:  How any of that, anything that

15     he did or said furthered the joint criminal enterprise as expressed in

16     19(a).

17             Let's turn to paragraph 19(b):  "Directing, facilitating,

18     supporting and issuing orders to elements and/or members of the Croatian

19     military, the police, or Croatian government Ministry of Interior,

20     including the military police and civilian police."

21             Well, we have covered large passages of this previously in my

22     submission.  The Court here has seen the orders produced during the

23     evidence.  They are all consistent with assisting the United Nations,

24     assisting displaced persons, normalizing life in Knin, general garrison

25     issues, how did any of his activities, if you collect them all together

Page 17325

 1     as exhibits, as we have, and look at them, and as we have put them into

 2     this Court during cross-examination as collections of documents, how do

 3     those steps taken by him rise to that level, whereby he has directed,

 4     facilitated, supported, issued orders, et cetera, in such a way that the

 5     object of the joint criminal enterprise being the permanent removal of

 6     the Serbian population has been realized?  We submit it simply isn't

 7     there.

 8             Paragraph 19(c):  "Permitting, denying, and/or minimizing the

 9     ongoing criminal activity, including participating in the reporting of

10     false, incomplete, or misleading information regarding crimes committed

11     while knowing that widespread destruction and plunder of property

12     belonging to Serb civilians and the unlawful killing and inhumane

13     treatment of Krajina Serbs were ongoing."

14             This case concerning General Cermak is very different from the

15     Brdjanin case, which was a case concerning inflammatory and extreme

16     speeches by an accused and resulted in a conviction.  The Prosecution

17     have to prove that anything said by him furthered the alleged joint

18     criminal enterprise, the common purpose of which was the forcible removal

19     of the Serb population.  How did anything said by him which could be even

20     considered to be a minimizing statement be other than a point of view, an

21     expression by him, just because he doesn't accept that this is an

22     organised plan or that the military are responsible for committing

23     crimes, just because he says, Well, this is revenge, there are civilians,

24     and he says that to General Forand or Mr. Flynn or Mr. Al-Alfi, how does

25     that further the joint criminal enterprise?  This is a very judgemental

Page 17326

 1     indictment, in my submission.  We get these complicated structures of

 2     allegations where we're having to deal with vast verbage, accusing

 3     someone of many activities, and the point of it becomes, often, lost.

 4             In our submission, none of what he said to the internationals,

 5     which were not denials of crimes.  There may have been an occasion or two

 6     when he said, Well, I'm not sure that happened.  That's not sufficient to

 7     form the basis to suggest because he doesn't agree with someone, that he

 8     suddenly entered a joint criminal enterprise.  It's -- it's extreme to

 9     start judging people in that way.

10             And in our submission, the construction of an indictment like

11     this, making this wide variety of allegations without proving even that

12     anything that came within 19(c) caused Serbs to, leave, prevented Serbs

13     from saying -- from staying is fatally flawed.  You have to tie this up.

14     You can't just make these allegations and say, You did that; it fits with

15     the pattern and picture of a criminal enterprise, and then not provide

16     the basics and the reasoning, the connectivity to show that that had an

17     effect and caused the common purpose to be achieved.  In our submission,

18     that simply does not happen in the way that has been expressed in this

19     indictment.

20             And why hasn't this case been structured in that way to establish

21     it, that anything he said caused people to leave?  Well, that's because

22     the evidence simply is not there.  It's not there.  And it's taking a

23     very extreme judgemental position on every single activity by an accused

24     and then magnifying it into a form of criminal conduct that is not

25     appropriate.  You have to have a sense of proportionality, and that's the

Page 17327

 1     missing word for me in relation to an indictment such as this against

 2     Mr. Cermak.  You may be able to criticise him for a decision he made or a

 3     statement that he made, but what has been proved concerning why he made

 4     it?

 5             Let's take the Grubori example.  What has been proved concerning

 6     what he knew at the time.  It is interesting that the first full report

 7     of the killings in Grubori came from the office, Captain Dondo, of the

 8     garrison.  It completely contradicts the theory of General Cermak being

 9     involved in a JCE, if the people working with him report a full report of

10     the matter to the police.  Not only that, statements made by him on the

11     Monday, on the TV in the video, what has been proved as to his state of

12     mind, the information that he was in possession of?  If you are going to

13     start trying people about what they say, you have to go the full way and

14     establish that what they said was a misleading account of the information

15     in their possession.  That has not been done in this case.

16             General Cermak was entitled to take the position presented to him

17     by the Ministry of Interior special police.  That's how the country

18     worked.  This was not a military matter; this was a police matter.  A

19     report takes place.  They give a report.  It is not for him, in his

20     function and role, to start questioning information that he has been

21     given.  Otherwise, every spokesperson for the troops in of Afghanistan,

22     Iraq, the Falklands, wherever, would be responsible under this 19(c) for

23     having committed an offence.

24             You've got to prove that it was done misleading and it was with

25     the intend of causing the purpose of the joint criminal enterprise to be

Page 17328

 1     perfected or to come about.  And, in our submission, proportionality is

 2     what is needed in relation to these allegations to have any sense.

 3             In the last three minutes, I will now turn now, before the break,

 4     to paragraph 19(d):

 5             "Failing to establish and maintain law and order among and

 6     discipline of his subordinates and neither preventing nor punishing

 7     crimes committed against the Krajina Serbs."

 8             I covered this yesterday in my argument in relation to the

 9     Article 7(3) subordination issues.

10             May I just point out that within the garrison regulations the

11     word "law" is not present at all, and that has been an insertion in the

12     indictment, if it is to refer to any obligations under the garrison

13     regulations that is not to be found.  The word "order" is different.  His

14     subordinates, as we know, nine, were the units of the Split Military

15     District subordinated to him.  Answer from yesterday, no.  What were his

16     duties to prevent, punish crimes committed against the Krajina Serbs?  He

17     had a duty to discipline his subordinates under Article 19, 27 of the

18     Code of Military Discipline.  Article 26 is as a superior officer, if an

19     offender is brought before him, not of his organic unit, and it is

20     necessary and -- I've forgotten the other words, necessary and reasonable

21     or necessary and appropriate, word to that effect, for him to take minor

22     disciplinary measures.  For that, you look at Articles 5 of the Code of

23     Military Discipline, et cetera.  No evidence to support the foundation

24     for this allegation as part of the joint criminal enterprise.

25             Your Honour, that's 10.30.

Page 17329

 1             JUDGE ORIE:  Thank you, Mr. Kay.  Just to inform you that you

 2     have approximately 45 minutes left after the break.

 3             We'll have a break, and we will resume at five minutes to 11.00.

 4                           --- Recess taken at 10.31 a.m.

 5                           --- On resuming at 11.04 a.m.

 6             JUDGE ORIE:  Before we continue, I would like to briefly raise

 7     one matter.

 8             The Chamber was informed that there is an -- exists disagreement

 9     on the accuracy of P461, which is the transcript and translation of the

10     Brioni meeting.  We also have D1453 in evidence, but that is the cover

11     page, and I do understand that there's no dispute about that.

12             Now, instead of filing a -- another version of the transcript,

13     the Chamber invites Defence or Defence teams who are not in agreement

14     with the transcript and the translation, to just file a brief written

15     submission in which it says, Having reviewed the -- P461, we put on the

16     record that ... page this and this, line those and those, are not

17     transcribed accurately.  The Defence takes it that an accurate

18     transcription would have been ... and then give your version of it.

19             The same for translations.

20             I don't know whether it covers half of the document or just a few

21     lines, but then the Chamber is put on notice that there is dispute about

22     the accuracy of the transcript and the translation, and if the Chamber

23     wants to rely on the relevant portions or on the whole of the document in

24     taking into account certain lines.  So if they have real importance for

25     the interpretation of this piece of evidence, then, of course, the

Page 17330

 1     Chamber will have to resolve it.  I mean, we can't just say, Well, we

 2     take the one that is best for either Prosecution or Defence.  Then either

 3     we have -- we need independent persons to listen to the text and to see

 4     to what extent the transcript reflects what is said.  We can ask further

 5     opinion on translation.

 6             But to start with, the Chamber wants to know where's the problem

 7     and what is the problem.  So the Defence, if they cannot reach agreement,

 8     and I do understand that no agreement could be reached with the

 9     Prosecution, is invited to put this on the record.  And the Chamber will

10     not just, because the status is not yet evidence, will not ignore what is

11     said and say, Well, P461 is in evidence, so therefore that is the

12     evidence and the other is not.  That is not a formal approach the Chamber

13     will choose.

14             The Chamber would further like to be informed, both by Defence

15     and by the Prosecution, and I think for the Prosecution we earlier, I

16     think, we denied a request to have the -- to receive evidence on who

17     transcribed it.  Of course, the Chamber know what is was offered as

18     evidence.  At that time, we said we don't want, at this moment to be

19     presented with this evidence.  We gave the reasons for that.

20             Now, unless we hear otherwise, the Chamber takes it that the view

21     of the Prosecution is that the transcript provided at the time was

22     produced by Croatian government officials, without further -- any further

23     details.

24             Now, if the Defence challenges it, of course, we'd like to know,

25     on the basis of what; and who, if there`s a translation issue, on whose

Page 17331

 1     authority the translation is criticised.  So we have transcript as one;

 2     translation is a second matter.

 3             Again, the Chamber will look at that time and see how important

 4     it is, not just focussing on the one or two lines -- two lines, but also

 5     what role these lines or these 10 or 20 or 50 lines plays in the

 6     interpretation of the document as a whole, and, of course, the parties

 7     can make submissions about the importance of those lines, but rather than

 8     to have now a new document in evidence, the Chamber will be confronted

 9     with exactly the same problem; that is, which is the correct one.  And if

10     there's any need to establish that, in relation to what is challenged,

11     and the Chamber does not know yet what is challenged, of course, we'll

12     try, in full transparency, try to resolve the matter.

13             Any comments on this invitation?

14             Parties consider it a suitable way of proceeding with this, and

15     then we expect such a submission by -- I think it was the -- it was

16     Gotovina Defence, but I'm not quite sure whether it is just the

17     Gotovina Defence or other Defence teams as well, we'll hear whether the

18     filing will be on behalf of Gotovina, or on behalf of Cermak and Markac

19     as well.

20             Then, Mr. Kay, are you ready to proceed?

21             MR. KAY:  Thank you, Your Honour.

22             Your Honour, turning now to paragraph 19(e):  "Providing false

23     assurances to the international community, that action to stop the crimes

24     was being and/or would be taken."

25             In our submission, there is no evidence Ivan Cermak provided

Page 17332

 1     false assurances, and we will be looking at the evidence in specific

 2     detail in a moment.  No evidence has been provided to show that what he

 3     said he knew to be false.  And let us look at the practical measures that

 4     were taken to stop crimes by the Ministry of Interior and the Croatian

 5     military, and look as well as what happened to crimes that were reported

 6     to him by the international community or whomsoever.

 7             Let's look first and consider the time-line of orders from the

 8     high-level Croatian authorities that were issued to stop crimes.  And we

 9     say these orders by themselves contradict the JCE allegation.  They are

10     orders that plainly get more intense as troubles increase.  And that of

11     itself is interesting, as it indicates that what happened after the

12     liberated territories were re-occupied by the sovereign authority, that

13     this may not have been a matter that they had planned for or considered

14     in advance as to what might happen, and that's probably the story of this

15     case.

16             From the 6th of August, Exhibit D323, General Cervenko issues the

17     order for the purpose of preventing theft of property and undisciplined

18     conduct.  So when General Cermak says, Measures are being taken, we know

19     that, on the 6th of August, the Chief of Staff issued this order which is

20     a measure being taken.  We know on the 6th of August, Exhibit D582, the

21     police, the Ministry of Interior, dispatched forensic officers to police

22     administrations for temporary assistance with forensic tasks at the

23     Zadar-Knin police administration.  So two arms of the Croatian system of

24     government in operation on the 6th of August.

25             Let us look at the 6th of August as well.  General Gotovina

Page 17333

 1     himself issues an order, Exhibit D643, to control and process properly

 2     the spoils of war, and that indicates those three orders of how the

 3     system was thinking at the time.

 4             7th of August, the Chief of Staff, General Cervenko,

 5     Exhibit D324, issues an order, prevent burning, looting, and all other

 6     illegal acts.

 7             8th of August, Exhibit D583, Mr. Moric, follows up an order of

 8     the 4th of August, instructing heightened security measures for transport

 9     infrastructure and defence of the country.

10             10th of August, General Gotovina, Exhibit D204, issues an order

11     on compliance with military disciplinary measures.  And it says:

12             "Take all necessary measures and fully engage in the

13     implementation of the military disciplinary conduct and the maintenance

14     of order in the area of responsibility and prevent arson and all other

15     illegal acts.  Take resolute measures against anybody who conducts

16     himself in an undisciplined manner."

17             Well, we know from evidence the background in this court as to

18     what was happening in this area at the time.  But were false assurances

19     given by General Cermak in the background to these orders issued from the

20     authorities precisely on the points of complaint by the international

21     community?  Why would these orders be issued if there was a plan that

22     they should allow people to go and commit crimes with the object of

23     expelling or removing the Serb population from the region?  It doesn't

24     add up.  And can you see from what documents we have; we don't have every

25     document in this case, but Exhibit D325, 10th of August, Commander Vukic,

Page 17334

 1     Operative Group Sibenik, issued an order, in order to prevent theft of

 2     property, undisciplined conduct, and save human lives.  Exhibit D644, an

 3     order from Captain Nakic, commander in Drnis replicates exactly the same

 4     wording from the previous order of Commander Vukic, compliance with

 5     measures of military discipline, in order prevent theft of property,

 6     undisciplined conduct, and to protect human leaves.  That's Exhibit D644.

 7             Well, that shows a system in operation, not a system failing.

 8     That shows assurances given by General Cermak that steps were being taken

 9     to control the behaviour of the people in the region were not false.  Not

10     false at all.  This is the evidence.

11             And the concern at the highest level of the Croatian authorities,

12     on the 10th of August, Exhibit D46, Mr. Moric to General Lausic, so the

13     Ministry of the Interior to the military police, asking him, Lausic, as

14     chief of the military police administration, to take measures to

15     eliminate burnings, lootings, killing cattle; also to increase

16     cooperation between civilian and military police at check-points.  So

17     why, if the Ministry of Interior assistant minister with responsibility

18     for the fundamental police is seeking cooperation and coordination with

19     the military police and asking measures to be taken, and this proves the

20     point of the separate hierarchical lines that Moric couldn't order

21     Lausic, why would this be happening if there's some giant plan to enable

22     people to commit crimes?

23             12th of August, Exhibit D205, Commander Kotlar, again using words

24     taken from General Gotovina's order of the 10th of August.  Exhibit 205

25     says:

Page 17335

 1             "Take all the necessary measures, preventing arson, looting,

 2     other illegal acts.  Take stringent disciplinary measures against

 3     perpetrators of such acts."

 4             12th of August, the Split Military District SIS, section for

 5     political activity, Exhibit D465, issues the warning to take measures to

 6     prevent burning, destruction of property, killing of livestock, theft,

 7     improper conduct, et cetera, and saying responsibility shall be with the

 8     commanders of units and political officials within units, and it's

 9     necessary to take punitive measures.

10             13th of August, Exhibit D646, order of the commander of the

11     Gospic Military District:  "Make maximal efforts to prevent looting,

12     arson, et cetera."

13             And they were concerned, because as in the previous exhibit this

14     stated, "in order to prevent sanctions on Croatia that the international

15     community threatens ..."

16             Well, if the high-level Croatian authorities are supplying

17     reasons to those beneath them, why crimes should be prevented and stopped

18     because they are concerned about the international community, why on

19     earth would they be supplying the reason if actually their plan was to

20     affect these crimes through perpetrators under their order with the

21     intent of causing the Serbian population to leave the area?  It does not

22     add up.  It is not joined up.

23             All these, I notice, are Defence exhibits that have gone into

24     evidence as well.

25             Let's go to another D number.  14th of August, Exhibit D647,

Page 17336

 1     Split Military District Command at Drnis.  Implementation of the 12th of

 2     August warning to all assistant commanders for political activity of the

 3     142nd Home Guard.

 4             Again, 14th of August, 112th Zadar Brigade.  Implementing that

 5     12th of August warning.  Exhibit D648.

 6             15th of August, Nakic at Drnis, Exhibit D649, forbidding burnings

 7     of residential and other structures, perpetrators will face disciplinary

 8     measures, and the commander of the unit will be relieved from duty.

 9             And then we get an intensification of effort from 17th of

10     August as Mr. Moric, from the Ministry of Interior, issued what was

11     Exhibit D48, produced by me to Mr. Flynn.  And I produced this document

12     about Moric writing to Lausic requesting a new plan of joint work to

13     eliminate crimes because he described the perpetrators of these acts in

14     most cases are persons "wearing Croatian army uniforms.  There are also

15     persons who are not members of the Croatian military but are only abusing

16     the Croatian military uniform."

17             Because this precisely underlines the point that this was not an

18     organised activity but that this was activity arising from the release of

19     pressure upon the liberation of the occupied territories by those who had

20     been kept in circumstances where they were almost refugees in their own

21     country who, for the first time, were allowed in their new state to go

22     back to their areas and that this release of pressure was the reason why

23     these people took revenge.

24             But I introduce this following on from D46, showing Moric and

25     Lausic at work, trying to deal with crimes.  This is just a selection.

Page 17337

 1     There is more from the military police administration and elsewhere.  But

 2     if we're facing the allegation that we were giving false assurances that

 3     action to stop the crimes was being and/or would be taken, it is

 4     important that these matters are brought to the Court's attention,

 5     because not only does it contradict the JCE, not only does it show that

 6     Mr. Cermak was telling the truth, but it shows that he was being

 7     misjudged in those international reports where officers of the

 8     international community, be they UNMOs, UNCROs, or whatever, were saying,

 9     He makes promises but nothing happens, that judgements have been made in

10     ignorance as to the true state of affairs within Croatia at the time.

11     And rushing to judgement which causes an indictment is a dangerous

12     matter, and that's why, at this stage of the case, we say that there has

13     been a rush to judgement on this, following the lead of the

14     United Nations representatives out there.  The Prosecutor rushed to

15     judgement, took their opinion, did not investigate further and in detail

16     and in depth, nor call the appropriate witnesses to determine this issue

17     in a satisfactory way, nor produce the correct documents in trial that

18     establish the truth, and a rush to judgement to say, Ah, this was not

19     being dealt with by the Croatian authorities.

20             In our submission, the background shows that the system was

21     trying to work and issue orders, so far as it could, to the police and

22     military, to stop what was happening.

23             The problem is, however, that if components within the system

24     don't listen, if components want to break the law themselves, what can

25     you do?  What can you do?  There must be proportionality about this.  The

Page 17338

 1     fact that crimes still happen doesn't mean that people have to be held

 2     into account.  Here you're hearing about those steps that were taken to

 3     stop crimes.

 4             Going further, 20th of August, Cetina, in Exhibit D585, of the

 5     commander of the Zadar-Knin police administration asking the problem to

 6     be addressed of transporting goods and livestock through police

 7     check-points, taking care to prevent crime from being committed, taking

 8     livestock and protecting the property of citizens.

 9             We're not dealing, as the Court has heard, with a well-resourced

10     NATO-style state borne out of the EU with all the regulations and

11     controls that are in place.  This was a new state, new ministries, new

12     military, faced with a problem upon liberation that it was simply not fit

13     for the purpose to deal with.  That does not give criminal

14     responsibility.  Because the structures were not capable does not give

15     criminal responsibility.  It was able to liberate, but it was unable to

16     regulate and enforce satisfactorily.  It tried, and there are many

17     examples of prosecutions and cases and reports of crimes in police

18     log-books or military police log-books, and if there was a plan, none of

19     that would be in existence, because that would not be the idea of putting

20     the plan in operation.

21             Well, these orders continue throughout August, and I will select

22     one or two.  The Court has had them all in evidence, 22nd of August,

23     Exhibit D50, a document I put to Mr. Flynn.  Mr. Moric, instruction to

24     follow up on the 18th of August order concerning crimes being committed,

25     including requests for specific information.  All wanting to be handled

Page 17339

 1     at the highest level.  Further, it goes through, all the days of August,

 2     22nd, 24th.  The administrations, the police administrations, the

 3     Ministry of Interior, all the way.  Time doesn't permit me to go through

 4     these one by one till October.  But it's there.  The Court has had it,

 5     and we submit the Court should consider it, because it contradicts the

 6     evidence, and maybe it would be appropriate because this is analytical

 7     evidence if we made a filing on the matter before the Court in the same

 8     way that the Prosecution did just before the close of their case with the

 9     Kardum documents which Your Honours ruled upon as being admissible as an

10     exhibit.

11             JUDGE ORIE:  Could I perhaps, very practically, Mr. Tieger, would

12     there be any objection against such a filing?

13             MR. TIEGER:  Your Honour, let me consult with -- first of all,

14     I'd like to look at the Kardum to refresh my recollection on that.

15     Secondly, just give us a brief opportunity to consider that, then can I

16     respond.

17             JUDGE ORIE:  Please -- perhaps later today would that be ...

18             MR. TIEGER:  I think so.

19             JUDGE ORIE:  And if not, on Monday.

20             Please proceed.

21             MR. KAY:  Thank you, Your Honour.  We offer it in the spirit of

22     helping the Court.

23             JUDGE ORIE:  Of course, I should ask Defence counsel as well

24     whether they would oppose the other Defence teams against such a filing.

25             I hear of no objections.

Page 17340

 1             MR. KEHOE:  No objection.

 2             MR. MIKULICIC:  No objection.

 3             JUDGE ORIE:  Then please proceed, Mr. Kay.

 4             MR. KAY:  Thank you.  Thank you to my learned colleagues.

 5             Let's look at specific reports of crimes and actions, then, that

 6     came to General Cermak.

 7             What is striking in this case is that there were many general

 8     reports as evidenced in the international's documents put to him,

 9     complaints about burning, arson, looting.  As witnesses have said, well,

10     it was obvious there were burning, arsons, and looting because you could

11     see it happening.  It was around.  It was there.  The Court knows that

12     General Cermak, as part of his way of carrying out his normalization of

13     life in Knin, had daily meetings to coordinate and seek cooperation.  And

14     these took people from all walks of life in Knin, as well as civil

15     authorities, such as the police, as well as the military police, to

16     enable people to be briefed.  And in Mr. Gambiroza's diary or notebook,

17     that's how it's described, as briefings as to what was happening.

18             In our submission this seems a very responsible and correct way

19     of performing if you are attempting to normalise life in this region.  If

20     you weren't bothered about crimes, why would you have the police there,

21     or the military police?

22             Let me remind you what -- what was said at the meetings

23     concerning discussions of crimes.  Witness 86, transcript page 5555.

24             "There were discussions about crimes and matters within the

25     jurisdiction of the police at the meetings.  The problems discussed

Page 17341

 1     related Knin and the localities that gravitated towards the town of

 2     Knin."

 3             We know from the passage I pointed out from you from

 4     Captain Dzolic as to the fact that he had been referred to -- to

 5     investigate some burnings that were happening that could be seen from

 6     Knin on the 9th of August.  All positive steps, all steps taken, so as to

 7     pass on information to enable people to act on that information,

 8     cooperation and coordination, not subordination, but information.  And

 9     that information was to enable control of this area to be taken.

10             When general crimes are just put before someone, what do you do?

11     If General Forand says, Well, there's arsons and lootings happening

12     around Drnis, how can you precisely deal with that, other than to report

13     it and pass this information on at the daily meeting?  So let's just have

14     a look at positive steps taken.  And you've had Exhibit P875, the

15     statement of Captain Dzolic, about him going to see the commanders to

16     tell them that burning houses was not to be tolerated and to take actions

17     against the perpetrators.

18             9th of August, as we know, General Forand requests assistance

19     from General Cermak to locate his three missing UN vehicles.  Specific

20     reference of a crime.  You've seen the documents that resulted from that

21     to assist the UN.  Again, Exhibit D303, the particular vehicles are

22     outlined.  The history of that we have been through.

23             Exhibit D505, 10th of August, 1995, the small shareholders

24     company, notifying theft of assets.  And General Cermak sends a report

25     attaching the complaint by the small shareholders company to the Knin

Page 17342

 1     police administration, a referral of a specific matter.

 2             Exhibit P814 concerning the maltreatment by three Croatian army

 3     soldiers of an old Serb man called Drpa, Dusan; Dusan Drpa, who had come

 4     out of the UNCRO camp and had gone back to his home and received

 5     maltreatment and abuse.  Referred to General Cermak by the international

 6     community, and he said that case was being worked on, and that would have

 7     been a matter raised in the daily meetings.

 8             We know of the Grubori matter where Captain Dondo, or

 9     Lieutenant Dondo, at Exhibit P1044, reports what he found at Grubori, as

10     a result of this matter being raised with General Cermak and in fact

11     being referred to the office of General Cermak on the 25th of August, and

12     he reported that matter to the Knin police.

13             Specifically, the 5th of September, Exhibit P383, and

14     Exhibit 230.  On the 5th of September, there was a protest concerning the

15     murder of Sava Babic, delivered to the military governor of Knin as it

16     was expressed in the report.  In fact, at that time, as the notes of the

17     meeting with Mr. Al-Alfi on the 7th of September show, General Cermak was

18     not in Knin.  However, Exhibit D230, on the 6th of September, 1995,

19     Mr. Romanic, the chief of the Kotar-Knin police, refers the matter to the

20     Zadar-Knin police to supply information.

21             Again, on the 7th of September, 1995, when General Cermak, on

22     that day, had returned to Knin, Exhibit P37, he is publicly stating in

23     newspapers that crimes should not be committed.

24             Described in Exhibit P829 of the 14th of September, 1995 as being

25     a media campaign to stop illegal moving into empty flats, looting, and

Page 17343

 1     arson.

 2             Exhibit D487, dated the 27th of September, 1995, a report sent by

 3     Mr. Romanic, the chief of the Kotar-Knin police administration, at that

 4     time, to General Cermak, referring to a case of rape that had occurred on

 5     8th of August in Knin discovered on 9th of August and informing him that

 6     it had been put before a judge in Zadar and for other incidents in Gosic

 7     on 27th of August, Brgud on 10th to 11th September, et cetera.

 8             3rd of October, 1995, Exhibit P1169, the issue of the killings in

 9     Varivode, where nine people were killed on the 28th of September.  This

10     wasn't dealt with by General Cermak, as he was out of town but by the

11     deputy, Gojevic.  Let's see if Gojevic, the Deputy Commander of the Knin

12     garrison acts appropriately.  He advises that this was found out by him

13     on the 29th of September and that all information should be obtained from

14     Zadar police, who were investigating as of the 28th of September of 1995,

15     and this matter was being dealt with on a daily basis.

16             And the Varivode investigation can be seen at Exhibits P268, P278

17     as being matters that were being dealt with and investigated.

18             And on the 11th October 1995, Exhibit P1223, a letter from

19     General Cermak to Carmen Burger of the International Red Cross referring

20     to a specific case that had been referred to him and what was happening.

21             Well, we know he is not in charge of the civil police.  We know

22     he is not in Knin and has no authority and responsibility to go around

23     investigating crimes.  But matters that are reported to him as specific

24     matters are all dealt with, and the evidence shows it.  Perhaps there are

25     one or two that weren't; but, again, this is a sense of proportionality

Page 17344

 1     that we have to have in this case.  We know that there were the daily

 2     meetings where crimes were discussed as a point on the agenda.  Again, in

 3     our submission, this shows that these matters were being dealt with and

 4     are -- an entire contradiction of the case that has been brought against

 5     this accused.

 6             Why would these steps taken if he was part of a joint criminal

 7     enterprise?  It simply doesn't add up, and the Court, at this stage, is

 8     entitled to rule that and stop these proceedings.  There's no point in

 9     just keeping everybody happy by allowing it to continue when the evidence

10     does not fit that which has been alleged.

11             This is an entirely different set of circumstances, revealed in

12     the evidence during this trial in this case, to what has been opened by

13     the Prosecution and presented as their case in their indictment and the

14     pre-trial brief.

15             Just general matters about the joint criminal enterprise,

16     Article 7(1), in our submission, no evidence of planning, instigating,

17     ordering, et cetera, as described in these very wide and general terms

18     within the indictment.

19             Your Honour, my time now has come to an end.  But we submit that

20     through the course of the evidence in this case, we have shown that this

21     is an entirely different situation to that which has been expressed by

22     the Prosecution as being criminal conduct by this accused.  And, in fact,

23     the acts taken by him, positive steps taken by him, show that he was

24     doing just that which he was described as doing by countless witnesses,

25     and that was the normalisation of life, helping the civil authorities.

Page 17345

 1     It was not doubt thought that putting a civilian in uniform and sending

 2     him down to this non-operational role would have been of assistance to

 3     achieve those ends for all concerned at that time.  If he was being given

 4     any greater status or responsibility, aside from being a civilian in

 5     uniform in a non-operational post, he would have been given some grand

 6     title and command post.  He has been given a grand title, and that was by

 7     the internationals, and that was because of a misunderstanding as to the

 8     nature of his actual title and role.  He was given the title of military

 9     governor and all that implies to those western internationals as to what

10     a military governor can do in a region.  But that wasn't the case here.

11     That was not part of the establishment of the Croatian government, such a

12     position and post, and I'm not being critical of people at the time, but

13     I do say that a little bit of research, thought, and consideration of

14     matters in a more detailed manner at the time may have led to a far

15     different outcome and understanding of the nature and role of this man

16     who was a civilian in uniform.

17             Your Honours, those are my submissions on behalf of Ivan Cermak.

18             JUDGE ORIE:  Thank you, Mr. Kay.

19             For the Markac Defence, I see, Mr. Kuzmanovic, you're on your

20     feet.  May I take that you'll be the one or the first one to address the

21     Chamber?

22             MR. KUZMANOVIC:  Your Honour, I will be the one to address the

23     Chamber.

24             JUDGE ORIE:  Then you have an opportunity to do so.

25             Please proceed.

Page 17346

 1             MR. KUZMANOVIC:  Thank you, Your Honour.

 2             Your Honours, this is the Markac Defence 98 bis submission.  I

 3     will not -- I will endeavour not to repeat much of what my colleagues

 4     have said with respect to the standard of review.  My colleague,

 5     Mr. Akhavan adequately covered the standard review, and it is well known

 6     to the Court.  What I will like to highlight for the Court in our 98 bis

 7     submission deals with joint criminal enterprise issues, the 7(1)

 8     allegations, and the issues of command responsibility of General Markac

 9     under 7(3).  There will also be some additional issues that I will

10     discuss after that command responsibility issue, but in general, the bulk

11     of my submissions today will deal with JCE and command responsibility.

12             Paragraph 12 of the amended indictment allegations that

13     General Markac, among others, participated in a joint criminal

14     enterprise 1, category 1, "the common purpose of which was to remove

15     permanently the Serbian population from Krajina."

16             This conception allegedly occurred on Brioni on the 31st of July,

17     1995, and it was implemented through Operation Storm.  The implement

18     ation of this joint criminal enterprise, as alleged to have occurred on

19     the basis of large-scale indiscriminate artillery attacks.

20     Indiscriminate shelling is the pillar of the Prosecution's joint criminal

21     enterprise theory.  The shelling, it is alleged, was followed by

22     large-scale destruction, appropriation, and discriminatory measures which

23     were aimed at allegedly preventing displaced persons from returning.

24             In addition to these crimes which constitute the category 1 JCE,

25     the indictment alleges by way of JCE category 3 that it was foreseeable

Page 17347

 1     that the crimes of murder, inhumane acts and cruel treatment were a

 2     possible consequence in the execution of the enterprise.

 3             Your Honours, the Prosecution in our humble submissions has tried

 4     in vain to make the case for indiscriminate shelling.  The area of Knin

 5     obviously has been covered at great length by my colleagues from the

 6     Gotovina Defence, and I will not cover that.  What I will, however, cover

 7     is the shelling claim made with respect to the special police in its axis

 8     of attack.  There is absolutely no evidence, none, to support the claim

 9     that the special police's use of artillery was indiscriminate in its axis

10     of attack.

11             Specifically, let's focus on the village of Gracac.  We have no

12     evidence; there is no witness who has testified that there were any

13     civilian casualties in Gracac, as a result of shelling.  There is it no

14     evidence and no witness to quantify any civilian collateral damage as a

15     result of the shelling of Gracac, or that civilian buildings or civilians

16     themselves were targets in Gracac.  There is no witness who has testified

17     that General Markac had anything to do with planning and preparing the

18     artillery operations in this axis of attack.  There is no doubt that the

19     special police did not have territorial responsibility, unlike the

20     Military Districts of Split and Gospic.  There was no territorial

21     responsibility.  There was no zone of responsibility.  The special police

22     had specific tasks enumerated for them which were ordered by the

23     Main Staff of the Croatian military.  They were front line troops.  They

24     did not occupy territory.  As soon as Operation Storm was over, they were

25     recalled for other duties.  As a matter of fact, on the issue of

Page 17348

 1     artillery, the only testimony concerning artillery for Gracac

 2     specifically comes Mr. Turkalj, Prosecution witness, who testified, among

 3     other things, that he had instructions to ensure that civilians would not

 4     be in harm's way as far as artillery was concerned.  He identified

 5     military targets within Gracac as was confirmed by Witness Rajcic.

 6     Mr. Turkalj testified that only 130-millimetre cannons were used, that

 7     multiple rocket launchers were not used, even though they were at his

 8     disposal, and that roughly for the town of Gracac itself, 15 rounds of

 9     artillery were used.  These transcript references are at 13697, 13703 to

10     707.

11             Moving further on into the axis of attack of the special police

12     in Operation Storm is the village of Donji Lapac.  Now, the only

13     testimony about shelling with respect to Donji Lapac is that the special

14     police, according to Mr. Turkalj, the only person who has testified about

15     artillery with respect to the special police, did not use artillery in

16     the fighting to liberate Donji Lapac.  And that transcript reference,

17     Your Honours, is 13713 to 16.

18             As a matter of fact, the only shelling that occurred in

19     Donji Lapac was the result of Serb shelling from Bosnia and from friendly

20     fire, both of which occurred on August 7th.  P614, which is the special

21     police war diary, discusses both of those events.  The war diary shows

22     that Donji Lapac, on the 7th of August, was liberated at 1300 hours.  At

23     1410 hours, the special police suffered a heavy artillery attack from its

24     HV artillery firing from positions in the Udbina area which stopped at

25     1440.  P614 continues that the special police were already gone from

Page 17349

 1     Donji Lapac by 1630 of that day and towards Kulen Vakuf in Bosnia, and

 2     that the Serb artillery opened fire on Donji Lapac from Bosnia at 1945.

 3             As far as Gracac and Donji Lapac are concerned, the claim that

 4     Gracac was 85 per cent destroyed and Donji Lapac was completely destroyed

 5     by members of the special police forces, as claimed in the Prosecution's

 6     opening statement, has no evidence to support it, with respect to the

 7     special police.

 8             But let's not rely on the Prosecution's opening.  Let's hear from

 9     the Prosecution's artillery expert, Mr. Konings.  What was his testimony

10     on the issue of shelling and the special police axis of attack,

11     specifically Gracac?  He had no opinions at all, critical.  Or even a

12     discussion of the special police and its use of artillery in

13     Operation Storm.  The indictment alleges that as part of the joint

14     criminal enterprise, General Markac used artillery at his disposal.  How

15     that artillery became part of a joint criminal enterprise has gone

16     undiscussed in the evidence from the Prosecution.

17             The Prosecution, according to Mr. Konings himself, did not even

18     ask him about specific issues relating to the use of artillery in

19     Operation Storm by the special police, including targeting issues.

20     That's zero evidence on a pillar of the Prosecution's JCE claim on

21     shelling, with respect to an entire axis of attack in Operation Storm.

22             With respect to the Brioni meeting, other than being present at

23     the meeting and having no substantive issues discussed by him, although

24     there was some discussion of General Markac, how does the presence of

25     General Markac at that meeting constitute membership in a joint criminal

Page 17350

 1     enterprise?  Where is the evidence of General Cermak's mens rea?  What is

 2     the crime?  The Prosecution, in its opening statement conceded, as it has

 3     throughout this case, that Croatia's right to reintegrate occupied

 4     territory into its internationally recognised borders was not in dispute.

 5     Yet the Prosecution has utterly failed to present one shred of evidence

 6     of how the special police artillery attack in its area of operation, in

 7     its axis of attack, constituted intent to commit a crime, and through

 8     that crime made a significant contribution to the commission of a joint

 9     criminal enterprise.

10             Let's look at the specific documents relating to the special

11     police vis-a-vis Brioni.  Exhibits 535, 53 -- D535, D536, and D543 are

12     documents which discuss the special police, orders from the Main Staff of

13     the Croatian military to the special police regarding operations that

14     they will conduct in the axis of operation which occurred during

15     Operation Storm.  D535 is dated June 26th of 1995, more than a month

16     before the Brioni meeting.  This document of the Main Staff ordered the

17     Ministry of Interior special police to launch attacks from the operations

18     base in the area of the Velebit mountains, with the aim of taking control

19     over the area of Mali Golic, Sveti Rok, Gracac, it was to cut off the

20     Gospic-Gracac road, take control of the Celavac radio relay facility,

21     place the pass and tunnel in Prezid under surveillance, and link up with

22     the Split Military District forces.  The operation as stated in June of

23     1995 was to be carried out in two stages over the period of three days.

24             Almost immediately after this specific order, the Main Staff

25     issued another order, D536, essentially negating the previous order of

Page 17351

 1     June 26th.  What happens on July 29th?  D543, another order from the

 2     Main Staff to General Markac, stating exactly the same -- almost exactly

 3     the same as the order of June 26th of 1995.  The MUP special forces shall

 4     carry out an offensive from the operations base in the area of

 5     Mount Velebit, in order to take control of the area of Mali Golic,

 6     Sveti Rok, Gracac, Prezid.  What were the objectives of that order, which

 7     allegedly was the result of a joint criminal enterprise?  Cut the

 8     Gospic-Gracac road between Sveti Rok and Stikade, seize the Celavac radio

 9     facility, put the pass and tunnel at Prezid under observation, link with

10     the forces of the Split Military District.  The operation shall be

11     carried out in two phases and shall last three days in all.

12             Before the Brioni meeting, after the Brioni meeting, the order is

13     exactly the same.  This, Your Honours, with respect to General Markac,

14     Shows that, A, he was not involved in any planning; B, he was not

15     involved in any joint criminal enterprise.

16             Let's look at what the real significant contribution of the

17     special police was, as described by General Forand in P401.

18     General Forand discussed the success of the special police and said as

19     follows:

20             "We have to recognise that the Croatians had tremendous strategic

21     success and that their small special force units did successfully

22     accomplish special missions."

23             Forand goes on to state that:  "The key action in the HV campaign

24     in Sector South was in the Velebit mountains at Mali Alan."

25             And as am aside, Your Honours, the civilian population in this

Page 17352

 1     mountain area of Mali Alan was zero.

 2             Forand continues:

 3             "We know from JORBAT and UNMO reports that HV special police

 4     battalions had been training and operating in the Velebits for some

 5     months.  On 4 August, three of these battalions about 1.000 men,

 6     supported by heavy artillery fire, took the crossing through the Velebits

 7     along the Mali Alan road that lead toward Lovinac."

 8             Forand continued:  "The HV exploited this success and advanced

 9     almost unopposed to Gracac and then further east, thereby cutting off

10     Knin and the south of the Krajina.  This hub of road junctions

11     effectively controlled all north/south communications in the Krajina and

12     could be qualified as a strategic success."

13             That's the real contribution of the special police in

14     Operation Storm, as described by General Forand.  General Forand

15     interestingly in the same document, P104, with respect to the civilian

16     population, does not mention anything about shelling causing them to

17     leave.  What he does say in this report is:

18             "One must ask himself why the RSK decided to order the civilian

19     population to flee, unless it was already a foregone conclusion."

20             Even more interesting when not manipulated through the prism of

21     the Prosecution's indiscriminate shelling accusation is that Forand

22     states, and I quote:

23             "Their use of artillery was excellent, but the coordination

24     between artillery, tanks, and infantry was not evident."

25             For Operation Storm General Markac was operating in a narrow axis

Page 17353

 1     of attack.  He was responsible to the Main Staff of the Croatian military

 2     in Zagreb, with respect military tasks and objectives.  When

 3     Operation Storm ended, his tasks changed at the orders of the Main Staff.

 4     These orders specifically are contained in D550, and D551, because

 5     initially his objective was only as far as Gracac.  But when the speed of

 6     the advance became such that stopping might allow the retreating RSK to

 7     set up a second line of defence, he was ordered by the Main Staff to

 8     continue his pursuit, eventually to the state border of Bosnia and

 9     Herzegovina, a task that the special police completed successfully, with

10     minimal casualties, with minimum civilian collateral damage, all with the

11     goal in mind to liberate Croatian territory and to restore Croatian

12     sovereignty.

13             Now, on this particular territory of Sector South, between August

14     10th and August 21st, the special police was not present.  Under order of

15     the Main Staff, D557, they were withdrawn to Petrova Gora, in Sector

16     North.  They were not present for 11 days.  D559 is an order from the

17     Main Staff to the Croatian military to conduct certain mop-up operations

18     due to armed resistance that was going on, not specifically to the

19     special police, but to the military.  D561 is an order asking the --

20     ordering the special police to return to Sector South to conduct certain

21     mop-up operations.

22             With respect to the civilian -- to the special police, we have

23     had no evidence that the displacement of civilians and the special police

24     axis of attack or anywhere else that the special police was located

25     resulted from grounds not permitted in international law as required by

Page 17354

 1     Articles 5(d) and (i).  There is no evidence to sustain either the

 2     Prosecution's joint criminal enterprise theory of liability at Brioni

 3     with the intention of terrorising and expelling civilians on

 4     discriminatory grounds or to sustain the Prosecution case that the crimes

 5     of persecutory unlawful attacks and deportation were in fact committed

 6     irrespective of the existence of a JCE.

 7             We've heard no evidence, none, that proves discriminatory intent

 8     on the part of General Markac.  There is no document; there is no

 9     statement; there is no conduct on his part.  There is no witness

10     testimony that provides any evidence of discriminatory intent for

11     General Markac towards Serbian civilians on the ground of their

12     ethnicity.

13             As discussed by my colleague Mr. Akhavan, with respect to the

14     murder and inhumane and cruel treatment allegations under Counts 6

15     through 9, there can be no JCE 3 attributable to General Markac without

16     evidence of JCE 1.

17             If we look at the JCE 3 claim, the key issue here is

18     foreseeability on the part of General Markac that crimes of murder,

19     inhumane acts, and cruel treatment were a possible consequence of the

20     execution of an alleged joint criminal enterprise.  There is no evidence

21     provided by the Prosecution of a common state of mind for the alleged

22     co-perpetrator as is set forth in Krstic.  Krstic at paragraph 613

23     states:

24             "If the crime charged fell within the object of the JCE, the

25     Prosecution must establish that the accused shared with the person who

Page 17355

 1     personally perpetrated the crime the state of mind required for that

 2     crime.  With no evidence of foreseeability or common state of mind beyond

 3     mere pleadings and arguments, this mode of liability must fail."

 4             Now, the Prosecution in its opening statement claimed:  "From

 5     that the virtual outset of entering towns and villages, the special

 6     police began committing crimes."

 7             We have no specific evidence from any source that identifies the

 8     special police as committing crimes while entering towns and villages,

 9     engaging in any wide-scale burning or looting at all.  None.  This leads

10     me into this next section of my 98 bis presentation, which I call guilt

11     by proximity.

12             In this section we have a variety of witnesses who testified that

13     they thought they saw the special police and identified them by uniform

14     only to be wrong time and time again.  In addition, the Prosecution puts

15     the special police via these witnesses in cities and villages in which

16     they never set foot, according to the war diary, P614.

17             JUDGE ORIE:  Mr. Kuzmanovic, you indicated that you would move to

18     your next section of the 98 bis presentation.

19             MR. KUZMANOVIC:  We can go to break, Your Honour.

20             JUDGE ORIE:  If you could finish that in five or ten minutes, and

21     that's fine.  Otherwise, I would prefer to have it as -- to listen to it

22     as one.

23             MR. KUZMANOVIC:  We can take a break.  I will just repeat my

24     introduction when we start again to this section, Your Honour.  That's

25     fine.

Page 17356

 1             JUDGE ORIE:  Yes.  Then we will have a break, and we'll resume at

 2     20 minutes to 1.00.

 3                           --- Recess taken at 12.21 p.m.

 4                           --- On resuming at 12.44 p.m.

 5             JUDGE ORIE:  Mr. Tieger.

 6             MR. TIEGER:  Thank you, Your Honour.  And apologies for rising

 7     before Mr. Kuzmanovic, but I thought it would be better to respond now.

 8     Has nothing to do with Mr. Kuzmanovic' submissions.  I just wanted to

 9     respond to the Court's invitation in connection with Mr. Kay's proposed

10     submission.

11             I had an opportunity to get some feedback on that, not entirely

12     sure that I understand what is being proposed so let me say this very

13     quickly.

14             I don't understand it to be a proposed submission related to the

15     actual Kardum submission.  I understand it to be an analogous submission.

16     If it was related to the Kardum submission, then we consider that matter

17     closed.

18             JUDGE ORIE:  I understood it to be analogous, rather the type of

19     submission like --

20             MR. KAY:  Absolutely.  The Court made a ruling that that was an

21     appropriate way.

22             MR. TIEGER:  And our having looked at in that light, our reaction

23     is that it is not an a appropriately analogous circumstance in terms of

24     the actual underlying documentation.  So both in terms of the substance

25     and the timing, it appears that we would object.  I appreciate the fact

Page 17357

 1     that we may not be in a position to do so until -- or your never

 2     precisely in a position to do so until seeing the actual submission;

 3     however, I thought would be more appropriate for foreshadow our initial

 4     reaction rather than allow Mr. Kay to proceed under the misapprehension

 5     that there would be no objection and put that in that amount of work.

 6             JUDGE ORIE:  Mr. Kay, then you are invited to show to Mr. Tieger

 7     what you have in mind to file.  And then if there is no agreement, if

 8     Mr. Tieger sustains his objections, then the Chamber will finally decide.

 9     We do understand it is not new evidence.  It is just a Kardum-type.

10             MR. KAY:  Yes.  As Your Honour ruled recently concerning managing

11     the materials.

12             JUDGE ORIE:  Yes.  But you're invited to first show to Mr.

13     Tieger, who is of course not yet entirely in a position to know what

14     exactly you're about to file.

15             Mr. Kuzmanovic, you were on your feet, but you sat down again.

16             Please proceed.

17             MR. KUZMANOVIC:  Thank you very much, Your Honour.

18        Q.   As I was discussing before the break, I was about to get into a

19     section that I call guilt by proximity with regard to the special police,

20     and this dovetails somewhat into what Mr. Kay discussed regarding the

21     construction of the indictment and the Prosecution's pre-trial brief.  In

22     many instances there is discussion of special police being close or at or

23     near instances of where crimes were occurring.  What is very telling

24     about those accusations, however, is we have heard no evidence that

25     anyone reported the special police to any competent authorities for

Page 17358

 1     participating in, allowing, or acquiescing in burning and looting.  There

 2     is not one single shred of evidence that anyone reported the special

 3     police to any competent civil authorities for acts such as those.

 4             Moreover, along the lines of guilt by proximity issue, there is

 5     not one single meeting that has been -- was requested of General Markac.

 6     The internationals that we have heard parade through the courtroom over

 7     the course of the trial, there is not one single person who even knew who

 8     General Markac was much less requested a meeting with him.  So with

 9     respect to issues relating to guilt by proximity, it is our submission

10     that the special police were not involved in any kind of guarding or

11     looting or burning.  As a matter of fact, the testimony itself by many

12     witnesses, and I will cite some examples here, as I said earlier, were

13     asked to identify their version of what they call to be the special

14     police by uniform, only to be wrong time and time again and to put them

15     in places in which P614, the special police war diary, does in the even

16     have them present.

17             For example, witness Hill was asked at transcript 3773, 3773,

18     lines 18 through 21:

19             "Q.  And the individuals you saw in the town of Pecane, were they

20     both individuals wearing these uniforms as well as others?

21             "A.  These uniforms, and I believe, the dark blue of the special

22     police around those vehicles."

23             So we have Mr. Hill identifying the special police in dark blue

24     uniforms.

25             And then we have Mr. Williams who testified.  In his statement,

Page 17359

 1     if you recall, he discussed seeing the special police in Knin on 5th and

 2     6th of August.  He was asked.

 3             "Q.  Sir it's a fact," at 9642, line 13, "that you have no idea

 4     whether or not the Croatian special police were in Knin on the 5th and

 5     6th of August; correct?

 6             "A.  I cannot confirm that special police were there or not;

 7     that's correct, sir."

 8             Later on he was at 9645, line 20.

 9             "Q.  With regard to the special police, they had single coloured

10     uniforms.  What was the colour of their uniforms?

11             "A.  To the best of my recollection, it was sort of an off

12     greyish steel colour.

13             "Q.  What kind of head gear did they wear?

14             "A.  Berets.

15             "Q.  What colour?

16             "A.  Black, to my knowledge."

17             So we off grey steel with black berets.  Witness Mauro in a

18     report P27 relating to Grubori, which I find highly instructive, at page

19     12064, referring to the report:

20             "A HRAT which travelled to Grubori on the afternoon of

21     27 August has received reliable reports of a group of 10 camouflage-clad

22     Croatian special police moving up the road to Grubori mid-morning on

23     25 August."

24             So we have now camouflage coloured special police.

25     Witness Al-Alfi at 13940:

Page 17360

 1             "Q.  Have you ever seen, yourself, the special police forces?

 2             "A.  Oh, yes, while they are -- but I did to the talk to them.

 3     They have a special dress.  It's a special uniform.

 4             "Q.  What colour?

 5             "A.  I'm not sure.  It can be blue; it can be dark grey,

 6     something like that.  But I knew that.

 7             So we have Al-Alfi describing the special police in blue or in

 8     dark grey.

 9             Witness Bellerose at transcript 5875:

10             "Q.  You described these soldiers as Croatian special police.

11     Can you describe for the Court what they were wearing.

12             "A.  They were wearing one or two-piece uniform that was either

13     going from memory dark grey or black.  They were also wearing black

14     load-bearing vest."

15             Later on in his transcript at 5951:

16             "The soldiers were usually wearing fatigue uniform with

17     camouflage pattern, and those persons stopping us, I call them the

18     special police, were wearing a one-colour uniform either very dark grey

19     or black."

20             So we have yet another colour describing the special police by

21     Witness Bellerose.

22             At 5955, Witness Bellerose states at -- was asked.

23             "Q.  You cannot tell me what factual basis you came to conclude

24     that these people who stopped you were actually Croatian special police;

25     correct?

Page 17361

 1             "A.  I was assuming by their uniform."

 2             Now, the only witness who correctly identified the uniform of the

 3     special police was Witness Steenbergen.  Witness Steenbergen was in

 4     Gracac on the 5th of August 1995.  That's when the special police were on

 5     their way there during Operation Storm.  He was asked at 5425:

 6             "Q.  Did you observe the clothing that these persons wore that

 7     was part of this group when you spoke to the commander?

 8             "A.  Yeah.  They were wearing olive-green military suits.  The

 9     commander was wearing a Kevlar helmet, and they were wearing OPS vests."

10             Now despite the pictures that we have seen of the special police

11     in Gracac, and we have seen photographs of them, we have continued to

12     have evidence led by the Prosecution either through the pre-trial brief

13     or through witnesses, that people identified as special police were not

14     special police.  To fit their theory that special police were present in

15     areas in which burning and looting were occurring.  There is no referral

16     of the special police by any of those internationals that we have

17     discussed with respect to burning and looting in any town or village.

18             With respect to issues -- oh, one other thing I need to add

19     regarding uniforms.  And I think it is the probably the coup de grace on

20     the issue of uniforms, was the Leslie radio interview.  The Leslie radio

21     interview in which the question was put to General Forand about the

22     interview, and in the interview Leslie said:

23             "There were a variety of organisations," at 4433 in the

24     transcript, "that then swept into this former Serbian Krajina.  There

25     were special police teams wearing their very distinctive blue uniforms

Page 17362

 1     who were engaged in hunting and killing in the mountains of Serbian

 2     civilians.

 3             We have another witness uninformed witness on the issue of the

 4     special police and what their uniforms look like.

 5             With regard to specific issues related to planning, there is no

 6     evidence that General Markac either planned Operation Storm, artillery

 7     attacks on any front, much less Knin, no evidence that he was involved in

 8     post-Storm planning or operations, other than specifically ordered mop-up

 9     operations directed by the General Staff of the Croatian army after

10     August 21st.  Not to speak of no evidence of his planning, initiating,

11     ordering or committing crimes.  All of his activities were reported to

12     the General Staff.  And it's my submission, Your Honours, with respect to

13     the joint criminal enterprise claim against General Markac that the

14     98 bis submission should be granted.

15             I will now turn to the issue of command responsibility under

16     Article 7(3).

17             JUDGE ORIE:  Mr. Kuzmanovic, before you do so, I'm -- have you

18     got any idea on whether even if we would have a late finish, whether you

19     would be able to conclude, or is there no way --

20             MR. KUZMANOVIC:  I will be able to conclude today, Your Honour.

21             JUDGE ORIE:  Yes, even with normal time-limits?  That's in 45

22     minutes.

23             MR. KUZMANOVIC:  Within 45 minutes, I should be done,

24     Your Honour.

25             JUDGE ORIE:  Thank you.  Please proceed.

Page 17363

 1             MR. KUZMANOVIC:  Thank you.

 2             As I stated, I will turn to the 7(3) command responsibility

 3     issue.

 4             The key issue with regard to General Markac and command

 5     responsibility is this:  There is no evidence that General Markac had

 6     knowledge of crimes that were not known to civilian authorities who were

 7     responsible to undertake measures.

 8             First, in relation to liability for Counts 6 to 9, based on

 9     command responsibility under 7(3), there is no evidence to support the

10     Prosecution theory that General Markac failed to take necessary and

11     reasonable measures to prevent or punish crimes which were alleged to

12     have been committed by his subordinates.  There is no evidence to show

13     that General Markac had any ability to conduct crime prevention, crime

14     investigation, or crime prosecution.  It is a distinction with a

15     difference.  Because, unlike the military, which had its military police

16     and its military courts, General Markac had no such apparatus at his

17     disposal.

18             Quite the contrary, with respect to General Markac.  When such

19     crime investigation was brought to his attention by the competent

20     civilian criminal authorities, he acted.  And I refer you specifically to

21     Exhibit D530, D531 and D1078.  D1078 describes specifically what happens

22     in a situation where General Markac is informed by the competent civilian

23     authorities that a special police member is under a reasonable suspicion

24     to have committed a criminal act.

25             D1078 specifically describes:  "Since there is an reasonable

Page 17364

 1     suspicion that the above-named had committed a criminal act; since

 2     criminal proceedings are being conducted against him at the investigative

 3     centre of the Zagreb county court, the special police member was

 4     suspended."

 5             Looking at D530 and D531, General Markac requests that the

 6     Knin-Zadar police administration handle an issue initially referred to

 7     him.  It was referred to him via an Official Note, and we have a heard a

 8     lot of discussion about Official Notes, from the Gracac police station,

 9     that there was an allegation of a burning incident involving members of

10     the Zadar special police.  Once this was referred to the Zadar special

11     police, the local commander there determined that the facts established

12     that one of the members of the unit had committed the act, and the local

13     commander was the one to impose the discipline.

14             Now, with respect to Grubori, the end is justifying the means.

15     And what I mean by that is we began with the Prosecution proposition in

16     the opening statement of the Prosecution regarding Grubori, and this is

17     the conclusion that's reached.  The true story -- and I'm quoting from

18     the opening statement:

19             "The true story is that the special police murdered the victims

20     and destroyed the village.  And that, together, Generals Markac and

21     Cermak worked to ensure that this would never be known."

22              "Never be known."  The internationals were there at the moment

23     it occurred.  Literally, half of Sector South, and that might be a

24     exaggeration but ... "They were there after the event, and it was

25     broadcast to the media the next day.  A video camera is in the village on

Page 17365

 1     the day of the event showing some of the homes that were on fire.

 2             With respect to Grubori, General Markac sent his Chief of Staff,

 3     Mr. Sacic, there after the event to see what happened.  You've heard that

 4     this was a mop-up operation in the area, in which this village was

 5     located; this mop-up operation being under the command of the staff in

 6     Gracac.  To this day, no one has determined precisely what has happened

 7     in Grubori.  No one.  Not the special police, not the criminal police,

 8     not the Croatian government, not the internationals.  No one.  There is

 9     only a conclusion.  A conclusion that has not been backed up by specific

10     facts.  You've heard that the mop-up operation was one of many occurring,

11     that the special police conducted.  We've heard multiple versions of this

12     event presented here in court by multiple witnesses.  The interesting

13     thing about witnesses the Prosecution has chosen with respect to the

14     special police to testify here are that not one of them was in the

15     village during the course of the action.  Not one.  Mr. Janic testified

16     he was in the vicinity; he did in the go through the hamlet of Grubori.

17     Mr. Celic testified he was in the vicinity.  He did not debate through

18     the village of Grubori.  Mr. Turkalj who was the commander of the

19     Lucko Unit, which was allegedly involved in this operation, testified.

20     He didn't come there until the day or two after.  Mr. Turkalj was present

21     there, HRAT, UNCIVPOL, Croatian civil police, all of these people were

22     present there after the event.  The Prosecutor talks about an alleged

23     cover-up.  When looking at the situation as whole, it begs the question:

24     What was being covered up?

25             Grubori was out in the public eye.  There is a picture of an

Page 17366

 1     infirm man lying in a pool of blood.  There is an claim now known not to

 2     be true through the testimony of Dr. Clark that another man in Grubori

 3     had his throat slit.  That story was promoted everywhere and ended up not

 4     being true.  The UN was there, as I said, UNCIVPOL, the Croatian civilian

 5     police, the press, television, the incident was recorded in the log-book

 6     of the Knin police.  It was passed to the Zadar-Knin police

 7     administration in Zadar.  Yet the civilian police under whose authority

 8     an investigation was to be conducted did not undertake a crime-scene

 9     investigation, if it in fact believed a crime had occurred there, as it

10     was obligated to do.

11             To this day, the testimony as that there are more questions than

12     answers about what happened in Grubori, yet the competent responsible

13     authority for determining what to do there, the civilian police didn't do

14     its job.  There is no evidence, none, that demonstrates it was

15     General Markac's responsibility to conduct a crime investigation or crime

16     prosecution with respect to Grubori.  In fact, the only evidence given by

17     the Prosecution on Grubori is that it was the responsibility of the crime

18     police to conduct the investigation.  We heard that from Witness Zganjer.

19     We heard from that Witness 84, and we heard that from Witness 86.  They

20     were to conduct an investigation, bring a investigative judge and

21     competent prosecuting attorney.  Nevertheless, when informed that

22     something had occurred in Grubori, General Markac did not bury his head

23     in the sand.  He asked his Chief of Staff to look into the event.

24             Let's look at the testimony of witness Zganjer for a moment.  Mr.

25     Zganjer was asked on page 11609:

Page 17367

 1             "Q.  Do you know that special police members are not the element

 2     of the police force that carries out crime investigations?

 3             "A.  Yes.  Special police has clearly defined tasks interviewing

 4     citizens or suspects conducting crime-scene investigations, taking other

 5     operational crime-investigation measures.  These are not the tasks of the

 6     special police, that's for sure."

 7             With respect to an issue of a cover-up, the only testimony here

 8     with respect to a cover-up is that there was not one.  And that is from

 9     Mr. Zganjer.  The question was asked of him on page 11610:

10             "Q.  As you conducted actions on the Grubori case, did you come

11     across any facts that indicated that there was an attempt to cover up or

12     to in any other way tamper with the investigation from any side.  In that

13     case you would have had to institute criminal proceedings against such a

14     party?

15             "A.  Yes, quite naturally.  In such a situation, I would have

16     tried to clarify all the circumstances in which this attempt to tamper or

17     cover up of this whole incident by those persons was carried out."

18             And the follow-up question to that:

19             "Q.  As you dealt with the Grubori case while you were the state

20     attorney in Sibenik, did you ever obtain any evidence or learn anything

21     to the effect that General Markac did anything to, in effect, prevent any

22     investigation into the Grubori incident and clarification of the

23     circumstances of the incident?  Did you come across any traces of this

24     activity on the part of General Markac?

25             "A.  From the materials that I had at my disposal, I was unable

Page 17368

 1     to establish any facts that would indicate that I should reach such a

 2     conclusion, the conclusion that Mr. Markac had in any way prevented or

 3     obstructed the actions of the police regarding the Grubori incident."

 4             Now, there was some discussion with Mr. Zganjer about the fact

 5     that his investigation in 2002 was a long time after Grubori had

 6     occurred.  His position was that the police could have done something

 7     before 2001, and that after his investigation he learned that not only a

 8     criminal report hadn't been filed but not even a regular report with

 9     regard to Grubori.  He found obviously that the report had been entered

10     the in Knin log-book but that no one had done anything with it.  That

11     goes in the testimony of Witness 84.  Witness 84 was the person who

12     entered this incident first into the log-book.  And Judge Kinis asked him

13     a question, several, on 11427 of the transcript:

14             "Mr. Romassev came to your office and provided you information

15     regarding the incident of Grubori.  Did you ask him to show where this

16     area is located in the map?

17             Answer:  "I did not.  There is something you need to keep in

18     mind.  Once I received the information, I immediately went to inform the

19     coordinators and my head."  Then there was a break.  "As I confirmed, it

20     seems we did not act appropriate as the police force.  We were supposed

21     to react and do our job.  Whether we did or not, that needs to be

22     assessed.  As of the moment I received the information from Mr. Romasev

23     we should have acted.  We did not, at least not mold, and I don't know

24     why, though."

25             Judge Kinis further asked:

Page 17369

 1             "Did you have specific instructions provided to you how to handle

 2     with information with dead bodies which are found in the area, or should

 3     you follow the rules of criminal procedure law in that respect?"

 4             Answer:  "In my view, what we -- what needed to be done is to

 5     investigate each and every incident, in particular, when bodies were

 6     concerned and where one can conclude with a degree of certainty that the

 7     military was involved.  Then a team was supposed to go out immediately,

 8     investigating and submitting a report to the administration."

 9             Judge Orie with this witness at 11113:

10             "Witness 84, at that time, having received that information, what

11     went through your mind about what to do or what not to do?  Could you

12     tell us.

13             Answer:  "Well, if I had had the ability to take charge, my first

14     step would have been to inform the duty operations officer which had been

15     done in fact, later.  Then I would have requested that the Ministry of

16     Interior in Zagreb and their duty operations service be informed

17     immediately, as well as the police administration in Zadar, and their

18     duty operations service.  And then Zadar, as being in charge of criminal

19     investigations should have been asked to set up a team, including an

20     inspector, a homicide inspector, a scene of crime officer, and another

21     person to go and perform an on-site investigation.  If that had been

22     done, I believe it would have been possible to identify the perpetrator,

23     and all this discussion today would not have been necessary.  Those are

24     the basic police actions that should have been taken then.  Why this has

25     -- this hasn't been done, I really don't know, nor can I give you any

Page 17370

 1     precise information.  There was a problem with this case, but what kind

 2     of problem, I don't know.  Why it all turned out this way, whatever I

 3     said would be a guess and could be a wrong guess."

 4             So the police, in this particular instance, did not do its job.

 5     Mr. Markac has nothing to do with the civilian police.

 6             What was the reasonable and necessary measure that General Markac

 7     failed to take with respect to Grubori?  He had his Chief of Staff,

 8     Mr. Sacic, look into what happened.  You asked -- ask yourself what about

 9     Celic?  He said that nothing happened.  Well, it is clearly obvious that

10     in Grubori something happened, and it was obvious when General Markac had

11     Celic come in to see him that all General Markac wanted was to find out

12     what happened.  Sacic concluded, based on his review that there was an

13     armed conflict in which there were civilian deaths.  What evidence is

14     there that Markac could not rely on information gathered by Mr. Sacic as

15     being accurate?  It is reasonable for a commander to rely, and they're

16     entitled to rely on the information provided to them by their

17     subordinates.

18             You heard Mr. Turkalj testify that to him, it appeared there was

19     an armed conflict in Grubori after having been at the scene.  That is

20     what it looked like to him based on his combat experience.  The operation

21     itself was conducted under the authority of the staff in Gracac.  There

22     is no evidence that General Markac had command of the mop-up operation

23     being conducted in the area in which Grubori was located.

24             The members of this unit which allegedly went through this area

25     in which Grubori was located were responsible to Celic.  Celic's

Page 17371

 1     immediate commander was Janic.  Josip Turkalj was in command of the Lucko

 2     unit.  Sacic was the Chief of Staff in charge of the mop-up operation in

 3     question.  Those are commanders four times removed on levels below Markac

 4     on the command scale.

 5             General Markac is not a clairvoyant like the Prosecutor would

 6     like to make him out to be.  If in fact there was a wall of silence among

 7     those who were in Grubori, what could he do about it?  He could not

 8     suspend anything without any criminal charge, without any specific

 9     evidence that they were involved in a crime, upon the information

10     received from his Chief of Staff that there was an armed conflict that

11     occurred in and around Grubori.  He could act on two occasions:  Upon an

12     Official Note or criminal charge by the competent civilian authorities

13     which had the authority to conduct investigations provided to him, or

14     report from the commander of an operation that a crime had occurred.  Of

15     those two alternatives, none happened.

16             The only person who did anything with respect to this was

17     General Markac.  He asked for his Chief of Staff to look into the

18     situation.  The fact is that to this day, we have no answer for what

19     happened in Grubori.  The investigation is still open.  And what the

20     Prosecution has done with respect to Grubori is to cover up its inability

21     to provide the Chamber with evidence beyond reasonable doubt that

22     General Markac, the man furthest removed from the event, was somehow

23     responsible for Grubori with the allegation that he covered it up.  There

24     is no evidence that what happened in Grubori was ordered by

25     General Markac.  There is no evidence that what happened in Grubori was

Page 17372

 1     covered up by General Markac.  And there is no evidence that he had the

 2     authority to punish anyone under him with what he knew at the relevant

 3     time.  You're only as good as the information you receive.  He is -- was

 4     entitled to rely upon the information that he received from his

 5     subordinates.

 6             Now, there is some discussion about the internal control

 7     mechanism, and that is a mechanism that allows General Markac supposedly

 8     to be able to discipline people.  Let's look at what the evidence on

 9     internal control is with respect to the Prosecution witness Janic who

10     testified extensively on this issue at P6234.  He was asked:

11             "Q.  Mr. Janic, do you know that the sector for internal control

12     conducted any disciplinary procedures?  Or did it instigate or process

13     disciplinary measures against members of the special police?

14             "A.  No, that was not within their jurisdiction concerning the

15     internal order within the Ministry of Interior.  And I may say that the

16     same situation prevails today.  Disciplinary proceedings were instigated

17     by unit commanders or superiors.  If have you a police station and a

18     policeman from that station commits a misdemeanor, then the head or chief

19     of the police station will launch disciplinary proceedings."

20             Similarly, according to the same principle, the person authorised

21     to instigate disciplinary proceedings within the special police was the

22     commander of a specific unit.  So one of his responsibilities was to

23     institute disciplinary proceedings for disciplinary breaches within his

24     units.  If I were to commit one, then the disciplinary proceedings

25     against me would have to be instigated by the head of the sector.

Page 17373

 1     However, the internal control sector did not have within its pursue any

 2     competence or authority to institute disciplinary proceedings.

 3             In addition, Mr. Janic confirmed that the special police did not

 4     have its own disciplinary court at 6247, lines 14 and 15.

 5             With respect to issue of 7(3) command responsibility, it is our

 6     submission, Your Honours, that the Prosecution has presented no evidence

 7     that General Markac had any knowledge of crimes that were not known to

 8     the civilian authorities upon whose responsibility it was to undertake

 9     measures.  That's the key issue here.  As a result, this mode of

10     liability must fail and a judgement of acquittal must be rendered.

11             There are two small areas, Your Honours, which I'm going to cover

12     very briefly.  The first can be handled in a sentence or two, and that's

13     the issue of armed conflict, which no one has really discussed yet.  At

14     paragraph 55 of the indictment, the Prosecution alleges that at all

15     relevant times, a state of armed conflict existed in the Krajina region

16     of the Republic of Croatia.  We have not seen one document, one witness,

17     or any other evidence that there existed an actual state of armed

18     conflict after the close of combat operations in Croatia in

19     Operation Storm.  For intents and purposes, Operation Storm ended on

20     August 10th, 1995.  Combat operations essentially were over.  We have no

21     witness, no evidence to testify that a state of armed conflict existed

22     after that date.

23             We discuss that issue extensively in our pre-trial brief, Your

24     Honours, but I won't discuss it any further at this point.

25             As to the scheduled killing incidents, there is no evidence that

Page 17374

 1     General Markac had any involvement in scheduled killing incidents 1, 2,

 2     3, 5, 6, 7, 8, and 9.  I have discussed scheduled killing incident 4.  We

 3     will reserve our discussion on the 189 additional alleged victims, but I

 4     can state with respect to General Markac that at this point there is no

 5     superior/subordinate relationship that he has with respect to any of the

 6     alleged killing incidents that I have discussed.

 7             In conclusion, Your Honours, Count 1 persecution requires the

 8     highest amount of mens rea.  A conscious attempt to discriminate against

 9     Serbian civilian merely due to their ethnicity.  As Kupreskic case tell

10     us, this is it one step removed from genocide because there is no

11     evidence and there no evidence that has been put forth on the issue of

12     discriminatory intent, Count 1 persecution must fail.

13             On Counts 2 and 3 regarding deportation and forcible transfer,

14     the shelling is what is the bottom line issue on Counts 2 and 3.  There

15     is no evidence that anyone in the axis of operations or attack of the

16     special police fled due to any unlawful shelling.

17             Counts 4 to 9 of wanton destruction, pillage and plunder, cruel

18     treatment, and murder under Article 3, General Markac did not have the

19     intent to commit these crime against humanity or war crimes through

20     destruction and pillage of property, nor did he make a significant

21     contribution to the commission of such crimes.  We have not heard any

22     evidence of what the significant contribution General Markac made under

23     Counts 4 and 9 -- through 9.

24             As is evident through the area of attack that General Markac was

25     commanding, there was no widespread attack against civilians.  As a

Page 17375

 1     matter of fact, the speed with which they advanced prevented them from

 2     sitting and occupying towns and villages.  They kept moving forward.

 3     They took Gracac; they kept moving forward.  They went on to Otric, and

 4     they went on to Bruvno, and Mazin, and Donji Lapac.  All these areas on

 5     foot, 60 kilometres from Mali Alan in the Velebits to the Donji Lapac,

 6     mostly on foot.  There was no time for them to sit and burn places down,

 7     and no time for them to sit and loot places because they were on the

 8     move.  They were always on the front.  They did not maintain law and

 9     order.  They did not maintain anything by the front line.  They kept

10     moving.  Because there was no widespread attack against civilians, Your

11     Honours, and certainly not in the special police axis of attack, the

12     Article 5 claims against General Markac must fail.

13             Now, 98 bis provides that at the close of the Prosecution case,

14     the Trial Chamber shall, not must or can, but shall, by oral decision and

15     after hearing the oral submissions, I'd enter a judgement of acquittal on

16     any count if there is no evidence capable of supporting a conviction.

17             Your Honours, we believe our submissions show there is no

18     evidence with respect to General Markac.  For these reasons we

19     respectfully ask the Trial Chamber for a judgement of acquittal of all

20     counts in the indictment, because the Prosecution has failed to present

21     evidence beyond a reasonable doubt in its case in-chief of

22     General Markac's criminal liability under the amended indictment.

23             Thank you, Your Honours.

24             JUDGE ORIE:  Thank you, Mr. Kuzmanovic.

25             Mr. Tieger, it's half past 1.00.  If we granted you four hours, a

Page 17376

 1     normal session in the morning is four hours and 45 minutes, and if we're

 2     all very precise, then 45 minutes are taken by two breaks, which leaves

 3     four hours.  Now we all know that we do not start exactly at 9.00, but

 4     sometimes even at one minute past 9.00.  I leave it up to, whether you

 5     want to gain the -- whether you want to use the 15 remaining minutes or

 6     whether you would be satisfied that this Chamber will do its utmost best

 7     whatever happens during the breaks, before the sessions or what even

 8     happens after the sessions, that you will have the full morning session

 9     on Monday.

10             MR. TIEGER:  Thank you, Your Honour.  We will be here at 9.00

11     precisely.  And I think it would be a false economy to start now.  I

12     appreciate that.

13             JUDGE ORIE:  I asked a few questions after I had heard

14     submissions of the other parties.

15             Mr. Kay, I have one question to you.  And you referred to a

16     question I apparently had put to Witness Theunens about the UNCRO orders,

17     UNCRO orders or anything else.  I do remember that I intervened when I

18     felt that, and not for the first time, the cross-examination derailed in

19     the sense that we moved away from what the original question was.  I also

20     remember that in that respect, the UNCRO orders were mentioned.  If

21     that's what you in mind, I need no further explanation.  If that's not

22     what you had in mind, because I was there rather explaining how matters

23     derailed, rather than I expressed any -- any need to get an answer beyond

24     the UNCRO orders.  If that's what you meant, there is no need to further

25     respond.  If you had any other question in mind, I apparently would have

Page 17377

 1     put to that witness, I'd like you to just briefly send an e-mail to the

 2     Chamber's staff, just page this and this, line that and that.  That would

 3     be enough.

 4             MR. KAY:  I can resolve the matter.  Your Honour has got it

 5     precisely, and it was your Your Honours' summary of the UNCRO orders that

 6     was the point that was being made.

 7             JUDGE ORIE:  Yes.  Not a question.

 8             MR. KAY:  Yes.  Your Honour knew what I was talking about.

 9             JUDGE ORIE:  Yes.

10             MR. KAY:  Thank you.

11             JUDGE ORIE:  Then this being resolved ...

12                           [Trial Chamber confers]

13             JUDGE ORIE:  Unless the parties would have any urgent matter to

14     be raised, and apparently they do not, we will adjourn until Monday, the

15     23rd of March, 9.00, Courtroom I.

16                            --- Whereupon the hearing adjourned at 1.33 p.m.,

17                           to be reconvened on Monday, the 23rd day of March,

18                           2009, at 9.00 a.m.