Tribunal Criminal Tribunal for the Former Yugoslavia

Page 17555

 1                           Wednesday, 25 March 2009

 2                           [Rule 98 bis]

 3                           [Open session]

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

 5             JUDGE ORIE:  Good morning to everyone in the courtroom and around

 6     the courtroom.

 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. Margetts, I see that you will be the first one to address the

13     Chamber.

14             MR. MARGETTS:  Yes, thank you, Mr. President.

15             JUDGE ORIE:  Please proceed.

16             MR. MARGETTS:  Yes, now we've taken care of that detail.

17             Thank you, Mr. President, Your Honours.  We hope to be as brief

18     as possible this morning, and we'll be attempting to avoid resubmissions

19     or engaging in the weighing of evidence in a manner that is not intended

20     by Rule 98 bis but instead, by pointing to particular points that have

21     been made by the Defence during the course of their presentations and

22     presenting some clarification of the evidence or law that has been

23     argued.

24             I will address the reply to the Prosecution submissions made by

25     the Defence for Ivan Cermak.  Ms. Mahindaratne will follow me, and she

Page 17556

 1     will be addressing the reply to the Prosecution's submissions of the

 2     Defence for Mladen Markac.  And Mr. Russo and Ms. Gustafson will follow

 3     and address the submissions of the Defence for Ante Gotovina.

 4             Mr. President, Your Honours, Mr. Kay commenced his submissions

 5     yesterday by referring to documents that demonstrate that General Cermak

 6     received orders from the chief of the Main Staff, Zvonimir Cervenko, and

 7     reported to General Cervenko.  Mr. Kay stated, in what has become a

 8     familiar phrase from the Cermak Defence, that the order was provided to

 9     General Cermak for information.  Orders issued by General Cermak and to

10     General Cermak are not for information.  They are not suggestions or

11     requests; they are what they say they are.  They are orders.  They are

12     provided for implementation, not information.

13             I refer Your Honours to the order D561 that was the subject of

14     the Cermak Defence submissions.  This order states that the commands of

15     the Military Districts and the command of the Knin garrison "shall

16     prepare reports," detailing areas that need to be searched and areas that

17     have been searched.

18             Paragraph 4 of the order, D561, states that the commands of the

19     Military Districts and the command of the Knin garrison are responsible

20     for the implementation of this order.  The order is addressed to

21     General Cermak in his capacity as a commander for implementation.  It is

22     not sent to him for information.

23             General Cermak provided a report to General Cervenko in response

24     to this order.  That's Exhibit P1219.  In the course of his submissions,

25     my learned friend Mr. Kay read one sentence of this report and then

Page 17557

 1     asserted that General Cermak did not respond in the fullest way.  The

 2     full text of General Cermak's response is as follows.  He states:

 3             "The Split Military District Command and Knin garrison are in

 4     constant coordination.  The intelligence assessment regarding this order

 5     was made by the chief of the intelligence department of Split Military

 6     District Command.  If we were to submit the same, I would consider it a

 7     repetition of work."

 8             In other words, having satisfied himself that the chief of the

 9     intelligence service had provided a full report, he didn't provide a

10     second report.  Again, this report to General Cervenko is revealing of

11     General Cermak's true position.  It reveals that he is in constant

12     contact with General Ante Gotovina.

13             In his 2004 interview, General Cermak confirmed this, stating

14     that there is nothing that he knows that General Gotovina doesn't also

15     know.  He also confirms in his 1998 interview - that's at page 15 - that

16     two intelligence operatives were stationed in his garrison building.  In

17     other words, as seen in this report, General Cermak was able to obtain

18     full information from the intelligence services and be sure that the

19     higher level in the chain of command - well, the highest level below the

20     Supreme Commander, the chief of the Main Staff - was fully informed of

21     events on the ground.

22             Mr. Kay went on in his submission to state:  "The fact that no

23     report was filed by him actually indicates he had no effective control."

24             As I have just taken some time detailing, a report was filed, and

25     that report revealed that essential and highly probative information that

Page 17558

 1     I have just detailed.  The report demonstrated that General Cermak

 2     operated at the highest echelons of the Croatian army.

 3             Mr. Kay addressed Article 52 of exhibit --

 4             JUDGE ORIE:  Mr. Margetts, since you apparently have dealt with

 5     D - what was it? - 561, I sense that there is a misunderstanding in the

 6     words "for information."

 7             I understood Mr. Kay saying that the -- what was called an order

 8     was not for any operational activity but was just seeking information,

 9     whereas when you are talking about "for information," I understand that

10     you are saying it was sent just to inform him instead of seeking

11     information.

12             There seems to be a -- a -- I'm not going into the merits of --

13     of what you said and what Mr. Kay said.  But it seems that you are

14     talking about different matters.  I just put this on the record.  I see

15     Mr. Kay is confirming this.  Mr. Margetts, just that it may be clear that

16     the Chamber is, of course, not assisted by two parties talking about

17     different things.

18             MR. MARGETTS:  Yes, yes, yes, Mr. President.  That --

19             JUDGE ORIE:  But now that we understand each other -- and I fully

20     appreciated what you said after that, which shows that there still is

21     quite some disagreement.  But here seems to be a misunderstanding of each

22     other's words.

23             MR. MARGETTS:  Yes, Mr. President.  Thank you for that

24     clarification.  I do see that the fact was that General Cermak was

25     seeking very specific information, very specific information --

Page 17559

 1             JUDGE ORIE:  Now you're repeating what you said.  I think it is

 2     clear.  Yes.

 3             MR. MARGETTS:  Thank you, Mr. President.

 4             JUDGE ORIE:  Please proceed.

 5             MR. MARGETTS:  Mr. Kay addressed Article 52 of Exhibit D32.  He

 6     submitted that the reference to discipline only concerns rules, and he

 7     bases this on his examination of the witness Theunens.  And he cited to

 8     pages 12881 to 12884 of the testimony of that witness.

 9             We reviewed those pages.  We don't see any support for the

10     position of the Cermak Defence.  The evidence of the witness Theunens

11     supports the proposition that setting rules may be a means of ensuring

12     discipline but certainly not the only method.

13             I refer Your Honours to pages 13077 to 13078 of Mr. Theunens'

14     evidence.  He refers to the fact that the garrison commander can use the

15     military police in order to maintain or restore order and discipline.

16     That in itself is a more expansive interpretation of those rules than the

17     Cermak Defence suggests.

18             I also refer Your Honours to the report of Mr. Theunens.  That's

19     P1113, and to pages 252 and 254.  In that he refers to the authority of

20     General Cermak in relation to the military police and civilian police.

21             In their submissions on Friday, and again yesterday, the Defence

22     stressed on a number of occasions that General Cermak was not an

23     operational commander.  Now, there is not an answer to the case against

24     him.  It is not part of the Prosecution case that he had command of

25     operations, in the sense that that's referred to.

Page 17560

 1             Moving on to another issue addressed by the Cermak Defence, and

 2     that is the reference to Exhibit P390.  That's the letter that

 3     General Cermak sent to General Forand on the 11th of August, 1995,

 4     granting freedom of movement for UN vehicles.  When my learned friend

 5     Mr. Kay addressed that, he left a question unanswered.  He said this

 6     letter:  "Its delivered to troops in zone of separation, whatever that

 7     means."

 8             In his 1998 interview, General Cermak is very clear about what

 9     that means.  At pages 59 to 60, he explains that that reference means the

10     units in the operative zone.

11             I'd now like to move to the issue of subordination of the

12     military police.  Mr. Kay referred to the witness Dzolic.  In our

13     submission, the statement the witness gave and repeated on a number of

14     occasions, both inside court and outside court, that he was under the

15     command of General Cermak is reliable, is corroborated, and is the truth

16     of the matter.  We submit that that should be accepted by the

17     Trial Chamber.  Mr. Kay has emphasised that the witness deviated from

18     that statement toward the end of cross-examination.  However, as we

19     observed in our submissions on Monday, the witness quickly confirmed that

20     he acted in accordance with General Cermak's directions during

21     re-examination.  Very briefly, we summarize the history of the witness's

22     evidence as follows.

23             First, he provided the statement that he was under the command of

24     General Cermak in May 2004.

25             Second, he confirmed this statement in August 2008, and the

Page 17561

 1     Trial Chamber may recall the August 2008 statement.  It contained a

 2     number of corrections to his 2004 statement, including a correction to

 3     paragraph 37 wherein he said he was under the command of General Cermak.

 4     He did not correct that sentence.

 5             Third, in what was a prolonged and detailed 92 ter procedure, he

 6     confirmed the statement again, under oath.

 7             Fourth, during examination, he volunteer that he was "subordinate

 8     to" General Cermak in daily tasks.  And I refer the Trial Chamber to the

 9     transcript reference 8953.

10             Fifth, it was only at the end of cross-examination that he agreed

11     to the suggestion that this statement regarding being subordinated to

12     General Cermak was -- General Cermak was incorrect.  That's the

13     transcript reference 9037.  And Your Honours may recall that this was

14     after counsel Mr. Kay had on two occasions mistakenly misinterpreted

15     orders, using the word "ask" instead of "order" in his questions and he

16     had been corrected by the Presiding Judge on both those occasions.

17     That's transcript reference 9023, and 9024.

18             And, finally the matter that we raised on Monday, and that is the

19     Presiding Judge, Judge Orie, elicited the fundamental truth from the

20     witness at pages transcript reference 9113 to 9115.  The witness could

21     recall only one instance when he did not carry out a request, that was

22     when it was impossible.

23             The Cermak also addressed in their reply to the Prosecution's

24     submissions the issue of the civilian police and in particular the

25     evidence of specific witnesses.

Page 17562

 1             Mr. President, it may be better if we move into private session

 2     for the next portion of the submission.

 3             JUDGE ORIE:  We move into private session.

 4                           [Private session]

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Page 17563

 1   (redacted)

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11                           [Open session]

12             THE REGISTRAR:  Your Honours, we're back in open session.

13             JUDGE ORIE:  Thank you, Mr. Registrar.

14             Please proceed, Mr. Margetts.

15             MR. MARGETTS:  Yes.  Mr. President, Your Honours, I will address

16     the topic of Grubori.  I won't go into the details.  I will merely

17     respond to the specific references that Mr. Kay made to this matter.

18             First, Mr. Kay stated, referring to the interview between the

19     witness Lyntton and General Cermak on the 26th of August, 1995, he

20     stated:

21             "It is clear from the interviews he had been in contact, or had

22     been contacted by, the special police who had given information to him."

23             The following evidence demonstrates that Cermak was in contact

24     with the special police and also indicates the type of information they

25     must have discussed.

Page 17564

 1             First, General Cermak telephoned General Markac and discussed the

 2     Grubori incident on the 25th of August, 1995.  That's the day of the

 3     attack.  That's the 2004 Markac interview and also the 2004 Cermak

 4     interview, at page 74 in the Cermak interview; page 70 in the Markac

 5     interview.

 6             Second, in the interview, the transcript of interview being P504,

 7     Cermak states that "during the operation, there was an exchange of fire."

 8     And he continues:

 9             "One Serbian terrorist was arrested and one body was found, and

10     we believe it was the body of a Croatian army soldier because he had his

11     hand tied with a wire behind his back."

12             The Trial Chamber has received evidence that in the morning of

13     the 26th, that's the same morning that General Cermak was conducting the

14     interview with Lyntton, that a similar false account of events was

15     dictated to Celic by the Deputy Commander of the special police, Sacic.

16     That false account is set out in the Exhibit P563.  Both versions refer

17     to armed resistance and the killing of one person and the arrest of

18     another.

19             The third matter I would like to refer to is a matter that

20     appears on the face of the interview transcript.  It's clear that

21     General Cermak did not present accurate information in relation to the

22     victims of the Grubori incident.  But it is also clear that he had very

23     precise information in relation to evidence that may identify the

24     perpetrators.  At page 2 of the interview, Lyntton mistakenly stated that

25     10 Croatian police vehicles could be seen near the incident.

Page 17565

 1     Approximately half a page on, Cermak refers to the comments of Lyntton

 2     and says:  "The gentleman put the question to me today, he said, 'Today I

 3     saw six police cars outside of this village.'"

 4             The question is, who told Cermak that there were six police cars

 5     there?  He discussed this matter with Markac, and he was accurate about

 6     this critical identification evidence.  The video, P837, shot by Lyntton

 7     demonstrates that there were six vehicles present.  We raise that matter

 8     because we say that that is probative of the focus of General Cermak at

 9     this time.

10             The second point Mr. Kay raised was he said:  "We can take it

11     from the progress of the interview that it was clear at this stage we did

12     not know that -- that Cermak did not know about deaths until the

13     interviewer himself said two civilians had been killed."  Of course,

14     that's not correct.  Cermak had volunteered the false information about

15     the body of the Croatian army soldiers before Lyntton mentioned deaths.

16             Third, Mr. Kay stated that from the terms of the interview you

17     can quite clearly see that General Cermak had said that the civil police

18     had been to the village and were unable to see anything.  Well, in

19     relation to that, first we know that the civilian police had not been to

20     the village at this time, contrary to Cermak's statement.  Cermak said,

21     "Yesterday, the civilian police was in the village."  That's not correct.

22             Second [sic], Witness 84 had received information from Romassev

23     at 10.00 a.m.  That was an hour before Cermak had commenced this

24     interview, and the civilian police at this stage already knew that two

25     civilians had been killed and three civilians had disappeared.  That's

Page 17566

 1     Exhibit P1041.

 2             The fourth matter is the reference that the Cermak Defence made

 3     to the report of Lieutenant Dondo.  Mr. Kay stated that the first full

 4     report was provided to the civilian police when Dondo returned and at the

 5     time that Dondo caused the entry in the Knin log-book at 8.00.  That's

 6     the entry in D57.  Again, there are a couple of points here.

 7   (redacted)

 8   (redacted)

 9   (redacted)

10             Dondo's report went to Cermak.  It didn't go to the civilian

11     police.  It reported that 20 houses and many farm buildings were set

12     ablaze and referred to the bodies of five civilians.  There is no mention

13     in this report of any evidence of combat activities.  Despite this,

14     General Cermak's liaison officer caused a false entry to be placed in the

15     log-book.

16             MR. KUZMANOVIC:  Your Honour, I'm sorry to interrupt.  Page 12,

17     line 1, we need a redaction.

18             JUDGE ORIE:  Mr. Registrar, would you please prepare the

19     redaction.

20             Please proceed, Mr. Margetts.

21             MR. MARGETTS:  Thank you, Mr. President.

22             The diaries, P501 and P503, make it clear that the police

23     expected an on-site investigation would take place until the time of the

24     morning meeting with General Cermak on the 27th of August, 1995.

25             Again, Mr. President, if I could move into private session.

Page 17567

 1             JUDGE ORIE:  We move into private session.

 2                           [Private session]

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21                           [Open session]

22             THE REGISTRAR:  Your Honours, we're back in open session.

23             JUDGE ORIE:  Thank you, Mr. Registrar.

24             MR. MARGETTS:  Finally, Mr. President, Your Honours, Mr. Kay

25     suggested that General Cermak's conversation with the minister of the

Page 17568

 1     interior, Ivan Jarnjak, on the morning of the 27th August 1995, after the

 2     meeting in Cermak's office, demonstrated that Cermak was not part of the

 3     joint criminal enterprise.  In our submission, it demonstrates the exact

 4     opposite.  Cermak assured Jarnjak that the police chief is doing a good

 5     job.  He did that at the precise time that the police chief ceased to

 6     pursue the investigation.  The contemporaneous documents demonstrate

 7     that.  Diary entry P501, for the 27th of August, 1995.  After the meeting

 8     with Cermak, it records that sanitation teams will proceed to Grubori.

 9             Thank you, Mr. President.  Thank you, Your Honours.  That

10     concludes my submissions.

11             JUDGE ORIE:  Thank you, Mr. Margetts.

12             Ms. Mahindaratne, if you would adopt the speed of speech of

13     Mr. Margetts which would express the unity of the Prosecution that ...

14             MS. MAHINDARATNE:  Yes, Mr. President, I will do that.

15             Good morning, Your Honours.  I wish to address some of the points

16     raised by Mr. Kuzmanovic.  Yesterday Mr. Kuzmanovic referred to the

17     reference by the Prosecution to looting in the Plavno valley and Orlic,

18     and this is at page 64 of yesterday's transcript, Your Honours.  We don't

19     have the final version so the page numbers are as per the draft.

20             Mr. Kuzmanovic stated that he could not find Exhibit P1249 and

21     that he had searched e-court several times.  Now he could not find that

22     because he was searching for the wrong number, because if you peruse the

23     transcript that is at T17413, Mr. Hedaraly really referred to P2149, and

24     not P1249.  And that's why Mr. Kuzmanovic couldn't find it.

25             Thereafter, Mr. Kuzmanovic also complained that the next document

Page 17569

 1     cited by Mr. Hedaraly, P267, does not contain a reference to either

 2     Orlic, or the special police.  Now, again, on the same transcript page,

 3     Mr. Hedaraly's submission is there, one can find it.  Mr. Hedaraly never

 4     mentioned special police in relation to either of these two documents.

 5     He only referred to looting but uniformed personnel.  There was never

 6     reference to special police, and the reference to Orlic was to looting in

 7     the village of Biskupija.  And I think Mr. Kuzmanovic will not dispute

 8     that the particular village is in the municipality of Orlic.  So it was

 9     just a case of misunderstanding on the part of Mr. Kuzmanovic.

10             The third issue is recorded at page 71, Mr. Kuzmanovic submits as

11     follows:  "There is no witness, no document, no exhibit that states that

12     General Markac was ever in Donji Lapac during this time-frame."

13             Now, in the Prosecution's submissions, we referred to the

14     testimony of witness Turkalj, who states at P1151 at page 44 to 45, that

15     Mr. Markac entered Donji Lapac with all forces, and that he was present

16     in Donji Lapac.  The exhibit that was also referred to in our

17     submissions, that's D555, records at page 47, and I will give the

18     specific entry number, 332, of General Markac being present in

19     Donji Lapac at 2120 hours on 7th August.

20             The fourth point is Mr. Kuzmanovic submissions at page 72, where

21     he submitted that there is no evidence that mop-up operations were not --

22     that they were -- mop-up operations were ordered by General Markac.  Now,

23     in our submissions we referred to four exhibits.  That is P1153, page 6,

24     and there let me just refer to the particular paragraph where it records:

25             "After the completion of the Operation Storm, in accordance with

Page 17570

 1     the orders issued by special minister Mr. Mladen Markac, the unit

 2     participated, as part of the joint special police forces in the cleansing

 3     of the liberated territories in the region of Petrova Gora, Gracac,

 4     Korenica, Vrlika and Svilaja."

 5             One of the other exhibits referred to, that is a Defence document

 6     tendered by the Markac Defence, D562, that is a report on tasks performed

 7     for 25th -- 21st August, 1995, sent to General Cervenko records right at

 8     the top of the document:

 9             "Pursuant to the order of assistant minister Colonel General

10     Mladen Markac between 600 hours and 1600 hours, joint special police

11     forces carried out the investigation of the general region of Gracac,

12     Udbina, and Sveti Rok, with the purpose to discover and destroy broken-up

13     sabotage enemy groups and to discover materiel."

14             We also referred to P574 and P575; I will not read those but

15     Mr. Kuzmanovic could find those references right at the top of the

16     documents.

17             Now contrary to Mr. Kuzmanovic's assertions, and this is again on

18     the same page, page 72, to the effect that the Prosecution has not cited

19     to a single eye-witness that any member of the special police was

20     committing serious crimes, such as murder, wide-scale burning and

21     looting, we indeed cited to the testimony of witness Vanderostyne, who

22     not only saw special police looting in Gracac but also provided the

23     Trial Chamber with photographs of those scenes.  Further, we also cited

24     to the (redacted)

25     (redacted)

Page 17571

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 6                           [Private session]

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16                           [Open session]

17             THE REGISTRAR:  Your Honours, we're back in open session.

18             JUDGE ORIE:  Thank you, Mr. Registrar.

19             MS. MAHINDARATNE:  A sixth point is -- Mr. President and

20     Your Honours, and this is it at page 74 of yesterday's transcripts.

21     Mr. Kuzmanovic claims that the special police did not maintain

22     check-points, which is again incorrect.  There is evidence that special

23     police maintained check-points.  I refer Court to the testimony of

24     Witness Steenbergen, at transcript 5471, line 6 to 15, as well as

25     Exhibit P1237, page 6.

Page 17572

 1             Mr. Kuzmanovic also claims that the special police was -- that

 2     the Prosecution claims that the special police was never given

 3     instructions on rules of war and then he went on to cite witness Janic's

 4     testimony on special police receiving instructions on international

 5     humanitarian laws in their training courses.

 6             Now, it was never the position that the special police was not

 7     trained in rules of war.  In fact, the submission was that in the face of

 8     the notice received of crimes committed by special police, General Markac

 9     failed to issue a specific order prohibiting crimes, and in the face of

10     serious crimes being committed by members of the special police in the

11     course of mop-up operations, he still failed to mention any cautions or

12     an order to prevent crimes in his orders for mop-up operations.  And the

13     Prosecution referred to his orders for mop-up operations P556 and P557,

14     issued in September, after events such as Grubori and Ramljane where

15     he -- the orders do not contain any reference to -- references to the

16     need to prevent crimes.

17             The Prosecution further submits that generic instructions on

18     international humanitarian law provided to an armed force in the course

19     of training or prior to an operation, do not suffice as reasonable

20     measures to prevent crime when a commander is on receipt of notice of

21     crimes committed by his subordinates.

22             In relation to the incident in Ramljane, Mr. Kuzmanovic submits

23     that General Markac took action and then that he had the matter

24     investigated.  In saying so, Mr. Kuzmanovic completely ignores the

25     testimony of witnesses Celic and Turkalj.  And I don't intend to go into

Page 17573

 1     that testimony in detail.  But suffice it to say that that testimony

 2     establishes that soon after houses were burnt in Ramljane in the course

 3     of the operation on 26th August, General Markac was present in the area,

 4     and interrogated one of the suspected perpetrators, namely, Franjo Drljo.

 5     And in the course of the exchange between General Markac and Drljo, Drljo

 6     admitted to General Markac that he had indeed burnt the houses.

 7             Now, notwithstanding that information, General Markac went on to

 8     issue P579, where he records that the houses were burnt in the course of

 9     combat.  And following that a further series of false reports were

10     issued, P767 through 771, which Mr. Kuzmanovic tried to depict as

11     General Markac's efforts to investigate the matter when, in fact, those

12     reports were his efforts to cover up the crime not investigate.

13             Just a simple comparison of those report, General Markac report

14     P579 and the other four reports, P767 through 771, will demonstrate this

15     fact further because there are certain glaring contradictions within

16     these reports which reflects the cover-up.

17             Now, in relation to that matter, Mr. Kuzmanovic further submits

18     that General Markac could not have prevented the crimes on

19     26th August because he did not have any notice of the crimes committed in

20     Grubori prior to the Lucko Unit being deployed in the operation on

21     26th August.  Now that submission completely ignores again the evidence

22     that has been adduced in relation to the matter.

23             The evidence is that on 25th August, and this has been referred

24     to by the Defence as well as Mr. Margetts, General Cermak informed

25     General Markac that some incident had occurred in Grubori where civilians

Page 17574

 1     were killed.  And pursuant to that, General Markac, on 26th morning,

 2     before the Lucko Unit was deployed in the second operation in the Promina

 3     hills area, he summoned witness Celic to his office and ordered him to

 4     write a further report, another report, on the operation on 25th August.

 5             Now, witness Celic testified that in the course -- soon after

 6     that meeting with General Markac, the Chief of Staff of special police

 7     Sacic dictated a new report to him which was P563.  Now, in P563, it is

 8     reported that the Lucko Unit had met with resistance in the village of

 9     Grubori and civilians had been killed and houses had been -- had caught

10     fire in the course of combat.  This reflects that before the unit left

11     for the operation on 26th August, that is the morning -- this is on the

12     26th morning, General Markac knew that an incident had occurred in

13     Grubori on the 25th, where civilians were killed and houses had been --

14     had caught fire in the course of the operation where the Lucko Unit was

15     involved, and he also knew that the Lucko Unit was to be deployed in the

16     second operation on 26th August.  But instead of withdrawing the unit, he

17     was involved in creating false reports in the morning of 26th August.  So

18     in that, he failed to prevent the crimes which occurred in Ramljane.

19             Finally, Mr. Kuzmanovic refers to Exhibit D1078 as an example of

20     General Markac taking measures against members of the special police for

21     crimes committed.  Now, I have to be honest, we are a bit puzzled by the

22     fact that the Defence, in fact, tendered this particular exhibit into

23     evidence or, for that matter, why Mr. Kuzmanovic considered this

24     particular document as reflecting General Markac taking measures against

25     crime.  I will refer to that document -- in fact, D1078 does reflect

Page 17575

 1     General Markac's ability or him -- General Markac exercising his

 2     disciplinary authority over members of special police.  However, the

 3     crime referred to, in relation to which he is taking action, has no

 4     relevance whatsoever to this case.  Let me just read what it is.  By

 5     D1078 General Markac suspends a member of the special police and the

 6     offence is, he records this:

 7             "Since there is reasonable suspicion that the above named had

 8     committed a criminal act of mediation of prostitution," from Article 205,

 9     and the sections are referred to, "an unlawful deprivation of freedom,"

10     from Article 46, "damaging several female citizens of Republic of

11     Ukraine."

12             Now, I -- we -- we don't see how the fact that General Markac

13     took action in relation to this offence --

14             MR. KUZMANOVIC:  Maybe if we read the next sentence we'll get the

15     context.

16             JUDGE ORIE:  Mr. Kuzmanovic, it -- parties each are blaming each

17     other for taking text out of context.  That is not a reason in itself to

18     intervene.

19             Please proceed, Ms. Mahindaratne.

20             MS. MAHINDARATNE:  The Prosecution submits, Mr. President, that

21     while the document indeed reflects General Markac's ability to exercise

22     disciplinary authority over members of the special police, it certainly

23     does not demonstrate him taking reasonable measures to punish members of

24     the special police for crimes which are the subject matter of this

25     indictment.

Page 17576

 1             In conclusion, I submit that the submissions made by Defence in

 2     support of its 98 bis motion is without merit, and we move for denial of

 3     the motion.

 4             Thank you, Mr. President.

 5             JUDGE ORIE:  Ms. Mahindaratne, you referred to P1237, page 6, as

 6     a demonstration of check-points being manned.  Could you guide me to the

 7     line in that document, and I must admit that P1237 is, as far as

 8     numbering of pages is concerned, is not a simple one.

 9             MS. MAHINDARATNE:  No, Mr. President --

10             JUDGE ORIE:  Because, for example on the page 3 in the e-court

11     numbering, has on top of it, 15, and at the bottom, 1 out of 1, which is

12     at least three different systems of numbering.

13             So 6, for me, is e-court 6.  That's the sixth out of seven pages

14     of which the second page is an empty page in translation.  Could you

15     guide me to the relevant line where it says that the check-points --

16             MS. MAHINDARATNE:  Yes, Mr. President.  It is page 6 on e-court

17     and that is if you follow the e-court pagination at the top right-hand

18     corner.  And --

19             JUDGE ORIE:  I see in e-court the sixth out of seven pages of

20     P1237, starting with:  "In those 30 days we didn't have any ..."

21             That's the page I'm looking at at this moment.

22             MS. MAHINDARATNE:  If I could have just a minute, Mr. President.

23             JUDGE ORIE:  Yes.  Perhaps otherwise you will resolve the matter.

24             MS. MAHINDARATNE:  I could do that so that I will not waste --

25             JUDGE ORIE:  Yes.

Page 17577

 1             MS. MAHINDARATNE:  Yes.

 2             JUDGE ORIE:  Mr. Russo, you're the next in line.  Please proceed.

 3             MR. RUSSO:  Thank you, Mr. President.  Good morning,

 4     Your Honours.

 5             My comments will be brief as the Defence responses regarding

 6     unlawful attack have added nothing to their unsustainable submissions

 7     under 98 bis.  Nevertheless, I must correct my colleagues on a number of

 8     errors of fact and law, and I will begin with General Markac.

 9             First, it appears that the General Markac believes that forward

10     observers are not needed in artillery operations as long as someone has a

11     map.  I will simply refer Your Honours to the testimony of

12     Lieutenant-Colonel Konings at Exhibit P1259, section 8(f), where he

13     indicates that one should not fire on targets in a civilian-populated

14     area without having the target under the observation of a forward

15     observer.  That is, of course, unless the target is well beyond the

16     damage -- the distance in which collateral damage could occur.

17             Now, the special police chief of artillery, Mr. Turkalj,

18     attempted to explain away the lack of forward observers, as

19     Mr. Kuzmanovic did yesterday, by stating that commanders on the ground

20     were the ones guiding the artillery fire.  However, commanders on the

21     ground could do no better than forward observers themselves under the

22     circumstances, and that is, they could not see over the mountainous

23     terrain.  And the fact remains that when the special police began firing

24     artillery into the town of Gracac at 5.00 a.m. on 4 August, no one from

25     the special police could see in to Gracac in order to correct the fire in

Page 17578

 1     that town, and no map can cure that fundamental defect or replace the

 2     need for eyes on target when firing into a civilian-populated area.

 3             With regard to the only alleged military target in Gracac,

 4     General Markac relies on the testimony of UNMO witness Herman Steenbergen

 5     for the proposition that the "main artillery impacts in Gracac"

 6     concentrated on the main junction and that is, of course, the cross-roads

 7     on the edge of the town.

 8             Aside from the fact that firing on an empty cross-roads delivers

 9     no appreciable military advantage, the evidence of Mr. Steenbergen in

10     this respect takes nothing away from the fact that, in addition to

11     shelling the main junction, special police also shelled civilian

12     residential areas, in fact, where Mr. Steenbergen himself lived, as well

13     as where other UNMOs in the town lived, none of which were located near

14     the main junction.  And I will refer the Trial Chamber to Exhibits P516,

15     paragraphs 24 to 25; P537; 538; and transcript pages 5498 to 5500.

16             Moving now to General Gotovina's response and the repeated

17     insistence that there is some requirement to prove civilian death or

18     injury in this case, the Kordic Appeals Chamber was explicit on the point

19     that there is no such requirement.  Any intellectually honest reading of

20     the Kordic Appeals judgement precludes the argument now advanced by

21     General Gotovina, and this Trial Chamber should not accept his misreading

22     or mis-characterization of that judgement.  Moreover, General Gotovina's

23     argument that the Galic judgement should supplant Kordic on this issue

24     overlooks or disregards the fact that Galic was charged with a violation

25     of Article 3.  Now whether General Gotovina chooses to accept reality or

Page 17579

 1     not is irrelevant.  He is not charged with unlawful attack as a violation

 2     of Article 3 but as a persecutory act under Article 5, and the law

 3     imposes no requirement of civilian death or injury.

 4             Nevertheless, the Prosecution notes that General Gotovina did not

 5     challenge, and indeed could not have challenged, the actual evidence

 6     cited by the Prosecution, showing that approximately 50 to 75 civilians

 7     were killed, and approximately 30 to 40 civilians were injured by the

 8     unlawful artillery attack on Knin.  Instead, without citation to any

 9     authority, they argue that the dead or injured must be "named."

10             Your Honours, there has never been a requirement to specifically

11     name victims of an unlawful attack, much less to do so in a case where

12     civilian death or injury is not even a requirement.  The fact that

13     General Gotovina killed and injured civilians is evidence of the unlawful

14     attack itself.

15             I will now turn to a few arguments of fact made by

16     General Gotovina.

17             He relies heavily on Exhibit D956, which is the Main Staff

18     directive, and argues that this contemplates the use of artillery against

19     Knin at a time prior to the Brioni meeting.  What General Gotovina fails

20     to recognise is that the Prosecution agrees with him, at least on the

21     proposition that this directive sheds great light on the significance of

22     the Brioni meeting, because there is a difference and a very significant

23     difference between the targeting language in the Main Staff directive

24     before the Brioni meeting, and the targeting language which appears in

25     General Gotovina's order following the Brioni meeting.  Specifically,

Page 17580

 1     General Gotovina's order to put entire towns under artillery fire is

 2     conspicuously absent from the Main Staff directive.  The directive

 3     contains no mention of putting entire towns under artillery fire and does

 4     not even mention the civilian-populated towns of Obrovac, or Drvar or

 5     Gracac.

 6             It is only after the Brioni meeting, after General Gotovina,

 7     General Markac, and others, plan to seize the opportunity to use

 8     artillery to trigger the panic-stricken flight of Serb civilians, that

 9     General Gotovina's order to put entire towns under artillery fire

10     suddenly appears in HV orders.  The Main Staff directive proves the

11     Prosecution's position that the Brioni meeting changed the plan for

12     artillery use into a means of forcibly expelling the Serb civilian

13     population.

14             Incidentally, to address General Gotovina's continued insistence

15     that the inclusion of Drvar in his order to put -- towns under artillery

16     fire is somehow inconsistent with an intent to drive out Serb civilians

17     to clear the area for Croat, I refer the Trial Chamber to Exhibit D656,

18     which is General Gotovina's order appointing a military governor for

19     Drvar in order to put an end to the burning and looting in that town,

20     because Drvar was "an area designated for the resettling of Croats."

21             Now to the use of MBRLs in Knin.  General Gotovina misrepresents

22     the exchange between the Presiding Judge and witness Anttila at

23     pages 2687 to 2688, arguing that the Presiding Judge's questions

24     demonstrated that the MBRLs found by Mr. Anttila were in fact fired by

25     the ARSK from Strmica.  I will simply invite the Trial Chamber to read

Page 17581

 1     that exchange where it will find no reference to the ARSK firing a rocket

 2     or the rocket being fired from Strmica.

 3             Another misrepresentation came when General Gotovina recounted

 4     the testimony of Marko Rajcic regarding the use of MBRLs, suggesting that

 5     Rajcic denied firing MBRLs at Milan Martic's "headquarters."  That was

 6     not the testimony of Mr. Rajcic.  Mr. Rajcic testified that MBRLS were

 7     not fired at the apartment complex in which Milan Martic lived, not where

 8     he worked.  Again, Your Honour, Mr. Rajcic admitted that using MBRLs

 9     against that apartment complex would violate the rules of distinction and

10     proportionality, because of the extreme inaccuracy of MBRLs and the

11     likely effect on the buildings around the target.  Again, that can be

12     found at transcript pages 16592 to 16594.  In that same exchange,

13     however, Mr. Rajcic also admitted that using MBRLs against targets --

14     pardon me, he admitted to uses MBRLs against targets which are surrounded

15     by residential and civilian buildings in downtown Knin.

16             The facts which General Gotovina cannot escape and which he

17     repeatedly seeks to minimise are, 1, that his chief of artillery admitted

18     that MBRLs are indiscriminate weapons when fired at targets in close

19     proximity to civilian-populated areas; and 2, that his chief of artillery

20     admitted in fact to using those indiscriminate weapons against alleged

21     targets in close proximity to civilian-populated areas in Knin.

22             Your Honours, this admission alone, suffices to defeat the

23     Gotovina's Defence 98 bis arguments regarding unlawful attack.

24             Thank you.

25             JUDGE ORIE:  Thank you, Mr. Russo.

Page 17582

 1             Ms. Gustafson.

 2             MS. GUSTAFSON:  Thank you, Your Honour.

 3             I would first just like to briefly respond to the erroneous

 4     assertion by the Gotovina Defence the relevant standard for General

 5     Gotovina's mens rea under Article 7(3) is whether he was aware of the

 6     "substantial likelihood that crimes will be committed."

 7             The authority the Defence cited for that proposition was

 8     paragraphs 344 to 348 of the Blaskic Appeals judgement.  Those

 9     paragraphs clearly address the mens rea standard for ordering, under

10     Article 7(1).  Those paragraphs have nothing to do with command

11     responsibility and there is no authority for the proposition that

12     Article 7(3) requires an accused to be aware of a substantial likelihood

13     of crimes.  The Prosecution articulated the correct legal standard, as it

14     was recently set out in the Strugar Appeals judgement.

15             The Gotovina Defence also claimed that the Prosecution was unable

16     to rebut their assertion that after 18 August there is no further

17     evidence of any information going to the Split Military District Command,

18     that General Gotovina's orders were ineffective or that any units in the

19     Split Military District were engaging in criminal activity on the

20     territory of the Republic of Croatia.

21             Your Honours, that claim is irrelevant to this case for two

22     reasons.  First, it is premised on an incorrect understanding of the law;

23     and second, it is contradicted by the facts.

24             First, built into this claim is a presumption that a commander

25     whose duty to prevent and to punish crimes has been triggered by his

Page 17583

 1     knowledge that his subordinates are engaged in ongoing criminal conduct

 2     can simply issue a bald order to stop that conduct, satisfy his duty to

 3     prevent crimes, and then only if further crimes are explicitly brought to

 4     his attention is his duty to prevent or punish once again triggered.

 5             That is not the case.  The duty to prevent in such circumstances

 6     requires a commander to take measures to ensure his orders are

 7     implemented, and that would include the duty to obtain information on the

 8     implementation of those orders.

 9             THE INTERPRETER:  Interpreters would kindly like to ask for all

10     the microphones to be switched off.

11             MS. GUSTAFSON:  And this is particularly the case where a

12     commander knows that similar orders he has issued have not been followed.

13     In that regard, on the 18th of August, General Gotovina was directly

14     notified by Colonel Fuzul and the military police that his last order

15     issued two days earlier that it was "forbidden to burn down houses" was

16     not being followed.  At page 115 of P71, Colonel Fuzul reports

17     destruction of property in all areas.  The military police report the

18     burning of houses and killing of cattle is being continued.

19             The claim that General Gotovina had from that point on satisfied

20     his duty to prevent further crimes by the mere absence of additional

21     explicit reports that none of his previous orders were being followed is

22     totally unsupported by the law of command responsibility.  Had

23     General Gotovina taken the absolute minimal step that would be required

24     at this stage to obtain further information on the implementation of his

25     orders, he would have found ample evidence that they were not being

Page 17584

 1     followed.

 2             But in any event, the evidence shows that General Gotovina was

 3     directly confronted with that fact, at least twice after the

 4     18th of August.  And on both occasions responded by justifying the crimes

 5     of rightful revenge.  On the 5th of September, General Forand confronted

 6     General Gotovina with the fact that looting and burning was still

 7     occurring "all over the sector."

 8             General Gotovina acknowledged that fact, and gave the "now

 9     familiar justification for revenge in response to Serb actions in 1991."

10     That's P333, paragraph 8; and P383.

11             Then, on the 19th of September, ECMM representatives met with

12     General Gotovina and asked him about the ongoing looting, arson and

13     harassment.  In the context of the report this discussion is clearly

14     about crimes in Croatia, and Mr. Hansen confirmed in his testimony that

15     the ECMM discussed the involvement of military personnel.

16             Again, General Gotovina did not deny the crimes.  Instead,

17     excusing them on the basis that "he regards it as a human feeling to hate

18     an enemy who has burned, looted and expelled one's family."  That is P895

19     and transcript page 14929.

20             Yesterday the Gotovina Defence asked you to take a simple

21     straightforward view of the evidence.  The straightforward evidence in

22     this case is that General Gotovina knew that his subordinates had

23     committed and were committing crimes, such as looting and burning, on a

24     massive scale.  He issued orders to his subordinates to stop those

25     crimes; he knew that those crimes were not stopping and that his orders

Page 17585

 1     were not being followed; yet he took no steps to ensure the

 2     implementation of those orders.  And when he was directly confronted with

 3     the continuing crimes of his subordinates, his response was that these

 4     were justified acts of revenge.

 5             The Trial Chamber does not have to adopt a "convoluted conspiracy

 6     theory" or "twist the facts" to conclude from this evidence that

 7     General Gotovina encouraged or condoned the crimes of his subordinates by

 8     issuing orders to stop those crimes that he did not implement and had no

 9     intention of implementing or that he failed to take the necessary and

10     reasonable measures to prevent or punish those crimes.

11             Finally, Your Honours, we would like to briefly respond to the

12     Gotovina Defence's characterization of our references to

13     President Tudjman's views on multi-ethnic states as obsessive and the

14     suggestion that we rely exclusively on those views to establish

15     General Gotovina's discriminatory intent.

16             Firstly, President Tudjman's views on multi-ethnic states are

17     neither the sole nor even the primary evidence of the accused's

18     discriminatory intent towards Serbs.  The record is replete with such

19     evidence.  In the case of General Gotovina, the evidence that he ordered

20     an indiscriminate artillery attack on an almost exclusively Serb

21     population or that he selectively failed to prevent or punish crimes

22     committed against Serbs come to mind.

23             However, President Tudjman's views on multi-ethnic states are

24     certainly relevant to that assessment as well as to this case more

25     generally.  The evidence recited by Mr. Tieger in this connection was

Page 17586

 1     hardly limited to Tudjman's academic or theoretical perspective on

 2     multi-ethnic states.  It was about Tudjman and others' concrete views of

 3     Serbs in Croatia and it made explicit that Serbs in Croatia were

 4     considered undesirable, that Tudjman and others wanted them gone, that

 5     once Serbs were removed from Croatia they took steps to ensure they would

 6     not come back, and that President Tudjman did not hide those views and

 7     spoke with pride and satisfaction at what had been accomplished by

 8     getting Serbs out of Croatia.

 9             Even if those views were limited to President Tudjman and not

10     those around him, as the evidence indicated, they would be highly

11     significant to this case.  President Tudjman was not some abstract

12     isolated political figure.  He was the hands-on Supreme Commander who

13     tasked and appointed the accused.  He led the Brioni meeting.  His views

14     animated that meeting.  And those present, including Generals Gotovina

15     and Markac, were receptive to and accepted those views and implemented

16     the tasks they were assigned at that meeting.  More generally, as

17     demonstrated in the presidential transcripts, for example, the "not even

18     10 per cent" reference, and as confirmed by Ambassador Galbraith, it was

19     Tudjman's views that set Croatian state policy and informed the conduct

20     at issue in this case.

21             Your Honours, that concludes our submissions today.  For all of

22     the reasons adduced during the course of our submissions this week, the

23     98 bis motion should be denied.

24             Thank you.

25             JUDGE ORIE:  Thank you, Ms. Gustafson.

Page 17587

 1             Ms. Mahindaratne, any line reference on page 6?

 2             MS. MAHINDARATNE:  Yes, Mr. President.  It is P1237, and I did

 3     make a mistake in citing the page number, Mr. President.  It is page 5.

 4     To be precise, it is paragraph 3 and if you -- in terms of the page

 5     numbering at the bottom of the page, it's the -- it's page 3 of 5.  It's

 6     the paragraph starting with:  "UNCRO commander was presented" --

 7             JUDGE ORIE:  Yes, I will read it.  Yes, and then I -- BPP, is

 8     that a --

 9             MS. MAHINDARATNE:  That is a barrier check-point, Mr. President.

10     That is the -- the Defence will not dispute that BPP stands for barrier

11     check-point.

12             JUDGE ORIE:  Yes.  And then it's followed by the words "to

13     protect the UN forces."

14             MS. MAHINDARATNE:  That's correct, Mr. President.

15             JUDGE ORIE:  Yes, thank you.

16             You see wrong sources keep the Chamber sharp and it's appreciated

17     that now and then you check whether we are precise enough to follow

18     you --

19             MS. MAHINDARATNE:  I apologise for citing the wrong page.

20             JUDGE ORIE:  Yes.

21             MR. KAY:  Your Honour, I said in my address to you yesterday

22     there was a missing exhibit number.  The transcript page was page 53,

23     line 2.  The document was P363, page 5.  It's a letter within a Forand

24     cable.  So it is slightly confusing.  It doesn't stand alone as a -- as

25     an exhibit.

Page 17588

 1             JUDGE ORIE:  Yes.  Where you said, "I'm sorry I can't give the

 2     exhibit number.  It's on the record now.  Thank you for clarifying this.

 3             MR. KAY:  Yes.

 4             JUDGE ORIE:  Any other matter?  Not an invitation to restart

 5     argument but to helpfully assist the Chamber in resolving puzzles.

 6             MR. KEHOE:  Yes.  On the resolving puzzles issue, Mr. President,

 7     yesterday with regard to the Court's inquiry concerning the 98 bis

 8     decision by the Oric Chamber and exactly what transpired in that case, of

 9     course, there was not a dismissal of the count by the Trial Chamber but

10     one of an invitation by the Defence not to address a particular murder in

11     one of the accounts.  It was somewhat of a different procedural

12     discussion that took place, but it was not a dismissal of a count per se.

13     That was subsequently appealed.  While there is some degree of clarity on

14     that by the Appellate Chamber, it really is not of tremendous assistance

15     at this point.  I would only say that --

16             JUDGE ORIE:  Just assistance would -- even if it is not

17     tremendous.

18             MR. KEHOE:  I just wanted to clarify the point, Judge.

19             JUDGE ORIE:  No, it is clear and I think reference was made by

20     Mr. Misetic already yesterday about the appeal lodged against what was

21     the outcome, whereas Mr. Akhavan, of course, referred mainly to the

22     explanation of the character of the 98 bis procedures prior to the

23     decision that was delivered at the 8th of June, but we have sufficient

24     links to fully [Overlapping speakers] ...

25             MR. KEHOE:  If -- I just have one other point.  With regard to

Page 17589

 1     what the actual laws on this score, of course, no Appellate Chamber has

 2     entertained this or discussed it in any fashion.  If the Chamber is so

 3     inclined to dismiss a count or a portion of a count and the Court could

 4     put that into particular order or deny that, we certainly in the interim

 5     could certify that question and find out what the actual position --

 6             JUDGE ORIE:  Mr. Kehoe, I earlier said that I did not invite to

 7     continue argument.

 8             MR. KEHOE:  I understand.

 9             JUDGE ORIE:  And that still stands.

10             MR. KEHOE:  With regard to a completely different subject, and

11     this has to do with the 189 killings on the clarification schedule, there

12     has been, Your Honour, two opinions by Your Honour on that -- by the

13     Chamber on that issue, the clarification schedule, as well as an

14     Appellate Chamber.  If it has not been clear prior to that time we would

15     like to formally request, without giving particular names, what of the

16     374 listed between the indictment and the clarification schedule fall

17     within the parameters of the 50 to 75 allegedly killed by shelling.

18             I think at this point as we move into a Defence case, the Defence

19     is entitled to that type of information so we can meet it, as opposed to

20     some amorphous claim that 50 to 75 individuals were killed.  We are not

21     asking for names.  We are simply asking for who in this list of 374 names

22     falls into the position alleged by the Prosecution of these individuals

23     that were killed by shelling.

24             JUDGE ORIE:  Yes.

25             Mr. Russo.

Page 17590

 1             MR. RUSSO:  Mr. President, I'm not sure -- apparently I didn't

 2     make myself clear.  We are not alleging that these approximately 50 to 75

 3     dead support the murder counts in the case.  They're simply, as I

 4     indicated, evidence of the unlawful attack itself.  And there's, as I

 5     indicated, no basis in law for identifying in any fashion the identities

 6     of the victims killed by unlawful shelling.

 7             MR. KEHOE:  Mr. President, that response is yet more perplexing

 8     because in the clarification schedule those individuals are listed as

 9     killed.  The Prosecution has taken the position that those support the

10     murder count.  And during the argument made by Mr. Russo, he also said --

11             JUDGE ORIE:  Mr. Kehoe.

12             MR. KEHOE:  Yes.

13             JUDGE ORIE:  I have a very practical solution.

14             MR. KEHOE:  Yes, Mr. President.

15             JUDGE ORIE:  We are now slowly moving from a response by the

16     Prosecution to the submissions made on the 98 bis applications.  We -- it

17     was not my intention at this moment to start other matters.  I asked

18     whether there were simple clarifications such as mistakes in page numbers

19     or anything else.  If there is any need to further discuss matters which

20     are not directly related to the 98 bis submissions, we could consider to

21     give such an opportunity if there is need to do this at this moment.  I

22     have also another procedural matter which is reading the reasons for

23     protective measures for Witness 82.

24             Are there any other matters?  I do understand that you,

25     Mr. Kehoe, you would like to -- it is not entirely clear whether you

Page 17591

 1     wanted the Chamber to issue an order to -- in this respect or just to

 2     invite the Prosecution.  But whatever it is, I see that that's a point

 3     you would like to be discussed at this moment.

 4             Is there any other procedural matter the parties would like to

 5     discuss?  Because then we could perhaps have a very short session after

 6     the break, in which I could read the reasons, in which urgent matters,

 7     which cannot wait and cannot be dealt with by written submissions could

 8     be briefly discussed.

 9             Is there any matter, Gotovina Defence?  Cermak Defence?  Markac

10     Defence?  Nothing.  Prosecution.

11             Then, the issue you just raised, Mr. Kehoe, have you discussed

12     the matter with Mr. Russo?

13             MR. KEHOE:  I have not, Mr. President.  I will take the break to

14     do that.

15             JUDGE ORIE:  Yes.  If that results in no further submissions to

16     be made I would then read now the decision -- let's do it the following

17     way.

18             You discuss the matter with Mr. Russo.  It is not a matter which,

19     as you said, the -- if the Defence case is to start soon, if there will

20     be any Defence case then we are entitled to know, et cetera.

21             So a short written submission in that respect clearly setting out

22     what you expect the Chamber to do, in addition to what Mr. Russo will

23     already agree to during your discussions during a very, very, very long

24     break, that, in my view, would be the right way to proceed.

25                           [Trial Chamber confers]

Page 17592

 1             JUDGE ORIE:  I will read the -- I will now deliver the reasons by

 2     the Chamber for its decision on -- the decision of the 26th of February,

 3     2009, granting trial-related protective measures for Witness 82.  The

 4     decisions can be found at transcript pages 16739 through 16743.

 5             On the 29th of January, 2009, the Prosecution applied for

 6     trial-related protective measures of pseudonym, and face and voice

 7     distortion for Witness 82.  The Markac Defence responded on the

 8     4th of February, 2009, requesting that the Chamber deny the motion.

 9             On the 12th of February, 2009, the Cermak Defence joined the

10     Markac response, adding its own submissions, and the Gotovina Defence

11     also responded, requesting the Chamber to deny the motion.

12             According to Rule 75 of the Tribunal's Rules of Procedure and

13     Evidence, a Chamber may order appropriate measures for the privacy and

14     protection of witnesses, provided that the measures are consistent with

15     the rights of the accused.  As the Chamber held in its reasons for the

16     first protective measures decision in this case, which can be found at

17     transcript pages 2609 through 2611, the party seeking protective measures

18     for a witness must demonstrate an objectively grounded risk to the

19     security or welfare of the witness or the witness's family, should it

20     become known that the witness has given evidence before this Tribunal.

21     In this same decision, the Chamber further held that the mere expression

22     of fear by a person is insufficient to justify granting protective

23     measures.

24             Witness 82 is a Croatian citizen.  He was a soldier in the

25     Croatian army and served during Operation Storm.  He currently resides in

Page 17593

 1     Croatia and has a wife and a young child.  It was expected that the

 2     testimony of Witness 82 would concern alleged burning and looting

 3     perpetrated by HV soldiers and special police during Operation Storm.

 4     The witness was concerned that his testimony could antagonise people in

 5     Croatia and because of the particular social environment in which he

 6     lives, particularly concerned that his testimony could antagonise - and

 7     I'm asking special attention for the line to follow to interpreters and

 8     transcriber - that his testimony could antagonise people living in close

 9     proximity to the witness and his family, including former colleagues,

10     some of whom might potentially be a subject of his testimony.

11             For these reasons, the Chamber found that the Prosecution had

12     demonstrated an objectively grounded risk to the security of Witness 82

13     and his family, should it become known that he had given evidence before

14     this Tribunal.

15             The Chamber, therefore, granted the Prosecution's application for

16     the trial-related protective measures of pseudonym, and face and voice

17     distortion.

18             Following the Chamber's decision to grant Witness 82 the

19     protective measures of pseudonym, and face and voice distortion, the

20     Markac Defence requested that for practical purposes, for practical

21     reasons all of the testimony of Witness 82 instead be delivered in closed

22     session, to which the Prosecution agreed.  The Markac Defence asserted

23     that the information to be elicited during cross-examination of the

24     witness would lead to his identity being revealed.  The Chamber accepted

25     that information revealed during cross-examination of Witness 82 could

Page 17594

 1     lead to the identity of the witness being disclosed, and also took into

 2     consideration that there was a joint request for closed-session

 3     testimony.  For the aforementioned reasons, the Chamber granted

 4     closed-session testimony as a protective measure and retained the measure

 5     of a pseudonym for Witness 82.

 6             And this concludes the Chamber's reason for the decision granting

 7     protective measures for Witness 82.

 8             The Chamber will deliver its decision on the 98 bis application

 9     by the Defence in due course.  Only after such a decision has been given

10     we will know whether there is a Defence case to be expected.  Of course,

11     still the Defence should decide after the 98 bis decision whether to

12     mount a Defence.  Therefore, we will adjourn sine die, but the Chamber

13     reminds the parties that the provisional scheduling as in the order

14     recently delivered by the Chamber stands as for -- in the situation that

15     the 98 bis application would be denied.

16             We adjourn, sine die.

17                            --- Whereupon the hearing adjourned at 10.47 a.m.,

18                           sine die.