1 Friday, 29 May 2009
2 [Markac Defence Opening Statement]
3 [Open session]
4 [The accused entered court]
5 [The accused Markac not present]
6 --- Upon commencing at 9.11 a.m.
7 JUDGE ORIE: The Chamber apologises for the late start, which was
8 due to practical matters.
9 Before Mr. Mikulicic, let me ask to first call the case.
10 Mr. Registrar, would you please call the case.
11 THE REGISTRAR: Good morning, Your Honours. Good morning to
12 everyone in and around the courtroom. This is case number IT-06-90-T,
13 the Prosecutor versus Ante Gotovina et al.
14 Thank you, Your Honours.
15 JUDGE ORIE: Thank you, Mr. Registrar.
16 I would like to deal with a few procedural matters. First,
17 yesterday evening, although rather late, Mr. Mikulicic, there was a
18 request by the Markac Defence whether the Chamber would grant leave for
19 Mr. Markac, for personal reasons, not to appear in court today. The
20 Chamber has granted leave. Therefore, Mr. Markac is not present today.
21 The parties were invited to agree on the volume and relevance of
22 the 92 ter submissions in relation to Mr. Lazarevic. Has an agreement
23 been reached and could I hear from the parties what the agreement is.
24 MR. HEDARALY: Yes --
25 MR. MISETIC: Mr. President, it's our witness, let me --
1 JUDGE ORIE: Well, then let's see. Mr. Hedaraly, you are
2 carefully listening and ...
3 Mr. Misetic.
4 MR. MISETIC: Yes.
5 Mr. President, I believe we've agreed that the Gotovina Defence
6 is tendering the witness statement as the 92 ter. We are tendering
7 excerpts of the Milosevic trial testimony which we will e-mail around to
8 the parties in a shortened PDF file so that it's easier for the Chamber
9 to read. It is roughly -- roughly 30 to 40 pages of the trial testimony.
10 We have one -- one disagreement, which is our concern is that
11 with the witness taking a 92 ter attestation, we have tendered the entire
12 Milosevic transcript just so that his testimony is full and complete and
13 to the extent there is any clarification of the statement contained in
14 the Milosevic trial transcript, that that be considered, that he has made
15 those corrections in the Milosevic trial.
16 For that reason, I have offered the Office of the Prosecutor the
17 opportunity to add anything they believe in the Milosevic trial
18 transcript, which either clarifies or contradicts or in some other way
19 would change the substance of the 92 ter witness statement so that
20 because of our agreement to reduce the number of pages, it doesn't turn
21 out in cross-examination that somehow he is now being impeached with the
22 Milosevic trial transcript even though we offered to 92 ter the entire
24 So the Prosecution has taken a different view of that so we have
25 not reached agreement on that point. However, I do wish to preserve on
1 the record that we offered to put whatever the Prosecution deemed
2 necessary from the Milosevic trial transcript into the 92 ter submissions
3 so that his entire testimony is accurate, complete, et cetera.
4 Thank you.
5 JUDGE ORIE: Mr. Hedaraly.
6 MR. HEDARALY: Thank you, Your Honour.
7 Yes, we talked to the Gotovina Defence and they have agreed to --
8 I counted, it's 36 pages of the Milosevic transcript. I won't read them
9 in the record since Mr. Misetic offered to e-mail them around. In
10 exchange we will withdraw our objection to the portions of the witness
11 statement to which we had objected, so at end of the day, there would be
12 the complete witness statement in evidence and 36 pages of the Milosevic
13 trial transcript.
14 With regard to the last issue raised by Mr. Misetic, in -- our
15 position, as we have explained to Mr. Misetic, is that once the witness
16 gives the attestation that his testimony in the Milosevic trial was
17 accurate and truthful, that can cover the whole transcript although only
18 excerpts of it are being tendered in evidence. So that should obviate
19 any difficulties or any potential impeachment which may occur because of
20 his testimony in direct examination rather than the 92 ter procedure.
21 I told Mr. Misetic I did not think it was a practical problem. I
22 did not appreciate -- perhaps I don't understand what the specific
23 problem is, but we have no problem in the attestation by the witness
24 covering the full transcript, even if they are not portions that are
25 being tendered, excerpts are being tendered through 92 ter and I think
1 that way, practically speaking, we would be at the same point.
2 JUDGE ORIE: The attestation would then be broader than just the
3 selected portions to be admitted into evidence but would cover all --
4 MR. MISETIC: Your Honour, I --
5 JUDGE ORIE: -- of what will be admitted and therefore --
6 Let me just have a look.
7 It seems that most likely if we do not say anything further about
8 it, that everything will run smoothly; and, if not, then, of course, the
9 Chamber will assist the parties in getting on the right track again.
10 MR. MISETIC: Mr. President, I don't have a problem with that
11 procedure. I just wasn't sure whether that was something the Chamber
12 would agree to. But if it's all right with the Chamber, it's all right
13 with me.
14 JUDGE ORIE: Well, if a witness says that, apart from the
15 portions he used in evidence, that he on other portions did speak the
16 truth, the whole truth and nothing but the truth as well, I mean, there's
17 nothing wrong with that. I would say that it wouldn't violate anyone's
18 rights. That's at least my -- my first reaction to the suggestion.
19 MR. MISETIC: Then there's no problem. Thank you.
20 JUDGE ORIE: Then the agreement is on the record now.
21 We'll hear about which pages; 36, I do understand.
22 I move to the ... the next one, which is oral submissions,
23 Mr. Waespi, on a safe conduct requested for Witness AG-20.
24 MR. WAESPI: Yes, the Prosecution has no objections.
25 JUDGE ORIE: Thank you, that's on the record. Then the Chamber
1 will give its decision in due course. It was already on the record that
2 the other Defence teams waived their right to respond to the motion.
3 Then having dealt with all the procedural issues, Mr. Mikulicic,
4 are you ready to make your opening statement on behalf of the
5 Markac Defence?
6 MR. MIKULICIC: I am, Your Honour.
7 JUDGE ORIE: Then please proceed.
8 MR. MIKULICIC: Thank you, Your Honour.
9 Good morning, Your Honours, in and around the courtroom everyone.
10 Let me first apologise, myself, for the late announcement of my client's
11 request yesterday evening, but I was simply also bound by the request in
12 the very late stage, and I thank you for your consideration in that
14 Your Honours, with your kind permission, while giving my opening
15 statement I would rather use my native language because that way I
16 could -- I believe much better express myself on the matter. Thank you.
17 [Interpretation] Your Honours, in the indictment it issued, the
18 ICTY Prosecution charges my client with alleged commission of the most
19 grievous crimes from the provisions of criminal legislation; namely,
20 five counts of crimes against humanity under Article 5 of the Tribunal's
21 Statute and four counts of violation of the laws or customs of war under
22 Article 3 of the Tribunal's Statute.
23 My client, along with the other co-accused, is also charged with
24 participating in the perpetration of these crimes as a member of a
25 criminal enterprise, together with the other co-accused and other
1 individuals, some of whom are named by the Prosecution, and some are
2 referenced in the indictment as other persons, both known and unknown. I
3 have to admit that in my 35-year-long legal career, I have never come
4 across an indictment containing this sort of an allegation and
5 description thereof, but I guess it is never too late. Though,
6 admittedly, it will be somewhat harder to prepare and argue an
7 appropriate defence against the Prosecution case relating to cooperation
8 between the accused and unknown persons. However, in the further course
9 of these proceedings, the Defence will demonstrate that such cooperation
10 simply did not exist, without attempting to identify unknown potential
11 accomplices, since, at any rate, our case is that they do not exist.
12 General Markac is a person of high moral integrity, a
13 conscientious professional, a devoted husband and father, a valuable
14 member of the community, a person of unscathed personal and professional
15 reputation without any political, religious, racial or any other
16 prejudice which would have purportedly been the catalyst and motive of
17 his alleged criminal conduct. I firmly maintain that my client did not
18 commit any crimes and we shall prove as much during our presentation of
19 evidence before this Honourable Court.
20 The Defence will demonstrate that the allegations contained in
21 the indictment are not based on relevant and credible evidence, and that
22 the standard of reasonable doubt required in order to rule on criminal
23 responsibility has not been met in the proceedings before this
24 Honourable Chamber.
25 In the indictment, the Prosecution places all the allegations
1 against the accused under the umbrella of a joint criminal enterprise.
2 Thus, the architecture of the indictment places the Prosecution into what
3 appears to be a privileged position since it does not have to,
4 quote/unquote, bother proving the casual link, nexus causalis, between
5 the committed crime and the actions of the accused. The reason behind
6 such a broad approach to the charging is, in the view of the Defence, a
7 simple one; namely, lack of relevant evidence pointing to a link between
8 the accused and the allegedly committed crimes and their alleged
10 A similar approach to the architecture of indictments was
11 routinely applied in the criminal jurisprudence of the former Socialist
12 Yugoslavia in the criminal prosecution of political dissidents. An
13 indictment would be constructed in the following way. A preamble would
14 be formulated, setting out the alleged criminal intent of the accused to
15 subvert the political values of the socialist system. The indictment
16 would then go on to list incidents which were the alleged consequences of
17 the accused's criminal intent.
18 Naturally, with the disintegration of the former Yugoslavia the
19 criminal law and principles of this sort were abandoned. The
20 contemporary criminal statutory and case law of the successor states of
21 the former Yugoslavia has been harmonised with the recent doctrine of
22 criminal law espoused by the worldwide community of democratic legal
23 systems. Contemporary criminal legislation insists on the establishment
24 of the individual criminal responsibility and distances itself from any
25 presumptions of guilt or objective criminal responsibility. This is a
1 legal standard which I'm sure this court of law will apply as well.
2 Therefore, I firmly believe that the blanket allegations
3 presented in the indictment about the criminal enterprise and my client's
4 membership of such an association simply do not relate to either the
5 facts or the trends in the development of contemporary criminal statutory
6 and case law.
7 In presenting our Defence, we will demonstrate that it is not
8 possible and that it is indeed completely erroneous to draw conclusions
9 on the motives behind the actions of an accused by basing the finding on
10 the existence of mens rea solely on consequential events. That is to
11 say, on the fact that there was indeed an increase in the incidents of
12 crimes in the relevant period and in the area covered by the indictment.
13 We will demonstrate all the efforts taken by the Croatian state
14 administration to prevent, prosecute and punish the perpetrators of these
16 Your Honours, in examining individual criminal responsibility, it
17 is the view of the Defence that special attention must always be paid to
18 the historical and sociological context of the community where the
19 alleged crimes were committed. The Defence will demonstrate that duly
20 appreciating the general background of events, the Croatian state
21 invested enormous efforts to reconstruct and restore the legal system in
22 the newly liberated territory and that these actions of the Croatian
23 authorities cannot under any circumstances be treated as actions prompted
24 and motivated by ideas in practical furtherance of the alleged criminal
25 plan, one of whose alleged participants was also General Markac.
1 The Defence will demonstrate what an immense organizational and
2 financial feat was undertaken by the Croatian state in the relevant
3 period at a time when it had to endure unprecedented economic material
4 damage caused by war activities on the part of the former JNA and rebel
5 Serbs. To illustrate the point, I will give you the 1999 figure,
6 according to which the damage was to the tune of 236.4 billion kuna, or
7 approximately 32 billion euro. The Croatian state financially provided
8 for an enormous number of displaced persons and refugees present in its
9 territory. Thus, in early 1992, more than 500.000 displaced persons
10 needed providing for in the free territory of the Republic of Croatia,
11 including refugees. Their numbers subsequently increasing to as many as
12 750.000 displaced persons and refugees.
13 According to the 1991 census, the Republic of Croatia had a
14 population of roughly 4.5 million. This figure clearly indicates the
15 share of in-flowing refugees and displaced persons in the entire
16 population of the Republic of Croatia. All of this was happening at a
17 time when 26.5 per cent of the Croatian territory was occupied and when
18 the Republic of Croatia was investing enormous efforts to set up and
19 equip its military and police forces, despite the blockade imposed by the
20 international community on the procurement of military materiel and arms,
21 doing it all with the aim of restoring state authority in its
22 internationally recognised territory. As a United Nations member state,
23 the Republic of Croatia was duty-bound under international law to
24 establish a state legal system in its internationally recognised state
25 territory and to secure the rule of law, public law and order, as well as
1 equal living conditions for all its citizens, including the citizens of
2 other states who happened to be on the territory of the state.
3 The Defence will therefore demonstrate that when liberating the
4 occupied territories, the armed forces of Republic of Croatia acted in
5 the name and on the authority of a sovereign state with international
6 legal personality.
7 In the liberated areas where an anti-constitutional, quasi-state
8 entity of the local Serb population had been established, the Republic of
9 Croatia was establishing its constitutional legal system, the component
10 part of which was international law. The latter includes all the rights,
11 obligations and responsibilities arising from the Croatian constitution
12 and international treaties, which the Republic of Croatia acceded to and
13 ratified. As noted earlier, the Defence will demonstrate that the
14 Republic of Croatia honoured the principle of proportionality under
15 international law and its own constitution by reducing the use of armed
16 force to the necessary level as illustrated by the exercised restraint
17 from the use of force in the areas of the Republic of Croatia, where the
18 rebel leadership of the so-called Republic of the Serbian Krajina agreed
19 to peaceful reintegration, which was completed in late 1997.
20 The Defence will demonstrate what sort of diplomatic efforts were
21 made by the Croatian state to place the occupied territories back under
22 the jurisdiction of the Croatian state with peaceful means. In certain
23 cases, depending on how reasonable or in touch with reality the local
24 Serb leadership was, peaceful reintegration of territories was agreed
25 upon; whereas, in other areas military and police actions had to be
1 resorted to, as all negotiation efforts failed, due to the local Serb
2 leadership's unreasonable and unrealistic position. Moreover, the
3 Defence will demonstrate that the Republic of Croatia tried to
4 reintegrated the occupied territories without the use of force, despite
5 the fact that the artillery of the so-called Republic of Serbian Krajina,
6 almost daily, shelled Croatian towns indiscriminately, as far as the
7 range of its artillery would reach; towns such as Osijek, Slavonski Brod,
8 Nova Gradiska, Sisak, Karlovac, Ogulin, Gospic, Otocac, Sibenik, Zadar,
9 Dubrovnik, including the capital itself, Zagreb.
10 Many civilians were killed. Enormous damage was inflicted on
11 business facilities. The Prosecution is fully familiar with these facts,
12 and I recall the Martic case which was adjudicated before this Tribunal.
13 However, despite the shelling the Croatian citizens did not leave their
14 homes in fear of indiscriminate shelling. By way of new legislation
15 enacted by the Croatian legislative branch, as early as mid-1992, the
16 existing constitutional law on human rights and freedoms, and rights of
17 ethnic and national communities or minorities in the Republic of Croatia
18 was amended, to the effect that it now provided for the establishment of
19 two districts, Kotar with a special autonomous standing; namely, the
20 districts of Knin and Glina, where the population was predominantly Serb.
21 This way the local Serb population was, under the law, given a position
22 of substantial autonomy and self-governance within the Republic of
23 Croatia. This initiative was not accepted by the local Serb leadership,
24 and neither, for that matter, was the Z-4 plan of the international
25 community, according to which the area of the so-called Republic of
1 Serbian Krajina would have been granted substantial legal attributes of a
2 state, as well as independence, including its own administration, flag,
3 currency, police force, et cetera.
4 Along these lines, the Defence will demonstrate the legal steps
5 taken by the Croatian authorities with regard to the suspected
6 participants in the armed rebellion of local Serbs against the Croatian
7 state legal system. The Defence will present the 1992 Law on Pardon
8 exempting from criminal prosecution and the Law on Abolition which was
9 enacted in 1995. In accordance with these laws, the Croatian judiciary
10 could prosecute only the individuals who were suspected of having
11 committed war crimes which is an obligation arising from international
12 criminal law and is incumbent upon every state. However, in relation to
13 all the other suspects, local Serb rebels, members of the former Yugoslav
14 People's Army or other paramilitary formations who took part in the armed
15 rebellion against the Republic of Croatia and thus committed crimes under
16 the Criminal Code of the Republic of Croatia, abolition from criminal
17 prosecution applied.
18 Similarly, the Defence will demonstrate the efforts made by the
19 Republic of Croatia to have the occupied territories economically
20 integrated into the Croatian state system. Thus, in late 1994, an
21 economic agreement was reached with the so-called Republic of
22 Serbian Krajina in order to convince the rebel Serb authorities of the
23 need for peaceful reintegration and to avoid the use of force by the
24 Croatian armed forces.
25 The Defence will present these facts to the Honourable Chamber by
1 way of numerous documents and testimonies, in order to confirm its case
2 that there did not exist a criminal enterprise in the top echelons of the
3 Croatian state administration, political and government structures, as
4 alleged in the indictment, and that the accused is not criminally
5 responsible for participation in the alleged criminal enterprise.
6 One of the fundamental bases of the indictment is the case of the
7 alleged orchestrated campaign to drive the Serb population out during and
8 after Operation Storm. It is an uncontested fact, Your Honours, that an
9 enormous number of citizens of Serb ethnicity, most of whom resided in
10 the territory of the self-proclaimed so-called Republic of Serbian
11 Krajina, left the area, leaving their homes and properties behind. The
12 Prosecution alleges that the exodus of the Serbs was the result of the
13 criminal conduct on the part of the Croatian authorities and the accused
14 as participants in that state policy.
15 However, that same Prosecution quoted a witness in the indictment
16 against Milan Martic - I'm referring to paragraph 85 - who stated that
17 Milan Martic himself told him back in 1991 that the Serb people had
18 expressed their readiness and wish not to live in Croatia, and that the
19 Serbs from Krajina wished to live in a common state shared with all the
20 other Serbs. Furthermore in that same indictment, at paragraph 94, the
21 Prosecution quoted a letter sent by Milan Babic to the peace conference
22 in The Hague on the 5th of September, 1991, where he said that the
23 Serbian people of Krajina chose to build their sovereignty where other
24 Serbs from the Balkans would live as well. Evidently this had to do with
25 the project of the Greater Serbia, of the so-called Greater Serbia, and
1 not with a sovereign Croatian state. Clearly, the Prosecution case,
2 according to which the Croatian authorities were responsible for the
3 departure of the Serbs from Krajina, is simply not true and does not
4 correspond to the facts, although the Prosecution itself is evidently
5 aware of the motives and mechanism of the departure of the Serbs, and
6 therefore these facts could be stipulated through agreement among the
7 parties. In the absence of such an agreement, the Defence will
8 demonstrate and prove at trial that the mass-scale departure of the Serb
9 population from the temporarily occupied Croatian state territory was the
10 result of the political ideology of the Krajina authorities and that the
11 departure was meticulously prepared and organized as a political option
12 in the event of the Krajina territory being reintegrated into the state
13 territory of the Republic of Croatia.
14 We will demonstrate that plans for the evacuation of the
15 population existed as early as 1993. Such a political option of the
16 Krajina authorities was in fact an operative elaboration of the generally
17 accepted ideology, espoused by the Serbian leadership during the rule of
18 Slobodan Milosevic, the chief operative and advocate of the Serb
19 political ideology, "all Serbs in one state."
20 The identical conduct of the Serb authorities towards their own
21 population could also be observed in the instance of the peaceful
22 reintegration of the Croatian Danube valley, the Podunavlje, the
23 reintegration of areas in and around Sarajevo, in Bosnia and Herzegovina
24 and later on, in Kosovo. In all those situations, where either as a
25 result of actions by the international community or as a result of
1 bilateral negotiations, or even military and police action, in other
2 words, when the Serb quasi-state building entity collapsed, the ultimate
3 result was always the organized moving out of the Serb population from
4 the territory where the existing political option had failed, that option
5 being the creation of a Serb political entity, either in an independent
6 so-called state-building form or with an idea of a future integration
7 into a Greater Serbia. There has always been a mass moving out of the
8 Serb population from those areas.
9 The Defence will further show that the leadership of Krajina
10 Serbs continuously, throughout the entire period of their occupation and
11 establishment of an illegal government, indoctrinated their population
12 with claims that the Croatian government was Ustasha-like and genocidal
13 in nature, thus instilling in Krajina Serbs a sense of fear and anxiety
14 about -- about the Croatian government, and hatred which was imposed on
15 Krajina Serbs by propaganda spread by the authorities, hatred towards
16 Croats in general.
17 In such an atmosphere of fear and hatred, which was imposed on
18 Krajina Serbs by propaganda spread by their authorities, the success of
19 the military and police action launched by the Croatian government was
20 seen as a direct threat to the life and existence of individuals,
21 especially those who, during the rule of the occupying Serb authorities,
22 had committed crimes against members of the Croatian minority in Krajina.
23 In the time-period after Operation Storm, in September 1995, a
24 large number of Croats was expelled from the Republic of Bosnia
1 provide accommodations for those expelled persons in the homes of the
2 Krajina Serbs who had abandoned them because there were -- there was no
3 other housing, there were no other housing facilities available.
4 The Defence will, by way of example, tell you, that, in
5 July 1995, in the territory of the Republic of Croatia
6 of 385.000 expelled persons and refugees.
7 Your Honours, an additional argument that the Defence will put
8 forth during its case that invalidates the Prosecution case about the
9 premeditated expulsion of the Serb population from Krajina by the
10 Croatian government, is the fact that the Serb population, which had fled
11 before and during Operation Storm, began returning to their homes as soon
12 as the action was completed, at first individually and then in an
13 organized fashion, and all of this with the consent of the Croatian
14 authorities, who were issuing the necessary Croatian papers to the
15 returnees in an organized effort.
16 The return of the Serb population into the territory of Krajina
17 is a continuous process, which cannot possibly be completed as quickly as
18 their departure from Krajina was organized and carried out. Namely, the
19 process of return is an exceptionally complex matter, which is not solely
20 within the competence of the Croatian authorities, but is first and
21 foremost a matter of interstate agreement and coordinated joint action by
22 the Republics of Croatia
23 territories of which the fleeing population sought temporary refuge due
24 to war operations in the territory of the former Yugoslavia, temporary
25 refuge and, frequently, a permanent one.
1 The Defence will show the efforts made by the Croatian
2 authorities to enable and encourage the return of refugees and will show
3 that, by the year 2000, about 245.000 refugees returned to the territory
4 of the Republic of Croatia
5 of -- of Serb ethnicity who had fled as a result of Operations Storm and
6 Flash. These facts that the Defence will prove to this Honourable Court
7 will confirm the thesis that there was no intent on the part of the
8 Croatian authorities to permanently expel citizens of Croat ethnicity --
9 of Serb ethnicity from the Republic of Croatia
10 Prosecution claim factually been correct, then the Croatian authorities
11 would most certainly not have enabled, through legislation and logistics,
12 the return of such a significant number of Serbs to the homes they had
13 abandoned earlier in the territory of the Republic of Croatia
14 Your Honours, General Markac was, during the period covered by
15 the indictment, the commander of the joint forces of the special police
16 of the Republic of Croatia
17 been established for the purpose of their participation in
18 Operation Storm. The Defence will show that the role in Operation Storm
19 of the special police was strictly purpose-oriented, in accordance with
20 the particular skills and training that members of the special police had
21 received. The role of the special police -- special forces in the
22 military operation Storm was defined by the Main Staff of the RH armed
23 forces, to whom special forces of the Ministry of the Interior were
24 subordinated, ad hoc, with the approval of and agreement between the
25 interior and defence ministers of the Republic of Croatia
1 systemic solution for the role played by the special police originated
2 with the Commander-in-Chief of the armed forces of the Republic of
4 Special forces were tasked with advancing and combat engagement
5 through the roughest mountain terrain on Mount Velebit
6 enemy was not expecting an attack. The Defence will show that the
7 special forces had the task to engage in combat activity and advance
8 along clearly defined axes without having to establish or monitor public
9 law and order in the territory liberated by their actions. The Defence
10 will show that, after the previously occupied territory was liberated,
11 the Croatian authorities, in a short span of time, established their own
12 administration by establishing police administrations, stations, and
14 The Defence will show that the specials - the special forces -
15 had combat tasks, and the task to advance along these pre-defined axes,
16 and that the commanders of Military Districts of the Croatian army did
17 not have any power to issue orders to special police members who received
18 their orders exclusively from the chief of the Main Staff of the Croatian
19 army, which Staff commanded Operation Storm.
20 The Defence will show that General Markac did not participate in
21 the planning of Operation Storm, the military operation Storm, within the
22 HV Main Staff and, thus, did not participate in the planning of the use
23 of the HV strategic artillery or in the identification of artillery
24 targets in the enemy's rear. Equally, the Defence will show that
25 artillery support to special police forces along the combat axis of the
1 joint forces was also ordered by the chief of the Main Staff of the
2 Croatian army, in accordance with previously identified strategic
3 artillery targets, and/or the artillery provided support at an ad hoc
4 request for support from the commanders of the special police. The use
5 of infantry artillery that was a component of the special police against
6 enemies points of resistance in the course of combat advancement was
7 autonomously decided by commanders of the special police on their axis of
8 combat advancement.
9 The Defence will show that there were no instances of
10 disproportionate or indiscriminate use of artillery in the course of
11 combat operations or in the preparations for the execution of
12 Operation Storm. In the course of preparations for the operation,
13 artillery was used against previously identified military targets, based
14 on intelligence, on enemy deployments, and enemy forces; and during the
15 combat operation itself, artillery fire was directed against enemy
16 resistant points, in accordance with information that gunners received
17 from scouts on the ground and/or from commanders of a particular axis of
19 We will demonstrate to this Honourable Court that the amount of
20 ammunition used during Operation Storm was significantly lower than the
21 artillery standards applicable in the armies, members of the NATO
22 alliance, or the standards of the former JNA, or of the armies, members
23 of the former Warsaw Pact. The Prosecution case that the artillery fire
24 of the Croatian military and police forces was conducted indiscriminately
25 in order to intimidate the civilian population is not consistent with the
1 facts and is simply not true. The civilian population of Krajina was
2 never the target of the military operation or of the artillery.
3 The Defence will show during its presentation of its case that
4 the joint forces of the special police advanced very quickly,
5 neutralizing the enemy resistance, and that in just four days, they
6 reached the border of the Republic of Croatia
7 and Herzegovina
8 chief of the Main Staff of the Republic of Croatia
9 In this short span of time, the joint forces of the special
10 police covered, mostly on foot, a long route through fairly rugged
11 mountain terrain using sporadically only light off-road vehicles for
12 transporting persons and equipment. After reaching the Bosnia and
14 joint forces of the special police of the Republic of Croatia MUP
15 received orders from the chief of the Main Staff to withdraw to their
16 original units.
17 Following this, following their withdrawal, the specials received
18 a new task from the chief of the Main Staff to search the terrain in the
19 area of Petrova Gora, which area is beyond the geographic scope covered
20 by the indictment. It wasn't until the 21st of August, 1995, again, on
21 orders of the chief of the Main Staff of the Croatian army, the specials
22 returned to Krajina with the task to search the terrain in order to
23 neutralize any remaining mines and explosives, enemy ammunition depots,
24 to neutralize minefields, and to find and apprehend terrorists, remaining
25 armed members of the rebel Serbs.
1 The Defence will therefore prove that in the time-period
2 following the 8th of August, up until the 21st of August, 1995, members
3 of the joint forces of the special police were physically not present in
4 the territory of Krajina and, therefore, could not have committed the
5 crimes for which my client stands accused, under the theory of command
7 The indictment claims that throughout the period it covers, from
8 July up until September 1995, the 30th of September, 1995, in the
9 territory covered by the indictment, there was a state of armed conflict.
10 The Defence will show that this claim is neither factually nor legally
11 grounded so that it is not possible to charge the accused under
12 Articles 3 and 5 of the Statute of this Tribunal.
13 The Defence will demonstrate the following relevant facts.
14 Operation Storm began on the 4th of August and lasted 82 hours. Already,
15 in the course of first two days of the operation, the Krajina military
16 and political leadership and the entire armed forces of the Republic of
17 Serbian Krajina, both military and police, withdrew, and left the
18 territory of Krajina and the Republic of Croatia and crossed into the
19 territory of Bosnia and Herzegovina and, later on, Serbia.
20 In the territory of Krajina, only small groups of local rebel
21 Serbs and volunteers remained, volunteers who had come from the territory
22 of Serbia and Bosnia and Herzegovina, and these groups went into hiding
23 in the mountains and forests and put up occasional resistance to military
24 and police forces of the Republic of Croatia by carrying out terrorist
25 attacks. Based on this factual situation, the Defence will, firstly the
1 legal foundation and prove its case that a certain time-period after the
2 completion of Operation Storm - that is to say, after 8th of August,
3 1995 - in the territory covered by the indictment there was no state of
4 armed conflict, but, rather, a state of internal unrest and tension which
5 is a factual and legal category that clearly involves a lower level of
6 armed activities than the category of armed conflict. Such a factual and
7 legal situation clearly comes under the exclusive jurisdiction of
8 Croatian courts, not under the jurisdiction of the International Criminal
10 Accordingly, the Defence will prove, by invoking the sources of
11 international criminal law and uncontested customary law, that in this
12 particular case it is not possible an apply the provisions of the Statute
13 of the Tribunal, Articles 3 and 5 of the Statute, when it comes to
14 criminal responsibility of the accused, which factually pertains to the
15 crimes committed after the 8th of August, 1995, because, at that time,
16 according to the Defence, there existed a legal state of deballatio; in
17 other words, a cessation of hostilities. Namely, the jurisprudence of
18 the international law clearly shows that the legal definition of an armed
19 conflict of that category, the category of armed conflict, requires
20 cumulatively two factual elements; namely, intensity of the conflict and
21 level of organization of the participants in the conflict. The Defence
22 will show that, after the completion of Operation Storm, the intensity of
23 the conflict between Croatian military and police authorities and
24 elements of rebel Serbs was insignificant.
25 Similarly, the Defence will prove that following the departure of
1 the entire political and military leadership of rebel Serbs from Krajina,
2 the organizational and, thus, the command structure of the armed forces
3 of the rebel Krajina Serbs, simply did not exist anymore.
4 As for the charges concerning the alleged omissions of my client
5 to prevent or punish perpetrators of crimes, the Defence will demonstrate
6 that General Markac took every measure that a reasonable commander can
7 take in order to obtain information on any unlawful conduct of his
8 subordinates. Quite the contrary. There is no information to the effect
9 that anybody of the international community, such as the UNCRO, UNCIVPOL,
10 HRAT, HCMM [as interpreted], or any domestic body, the basic or crime
11 police, the military police, the SIS, the Security and Information
12 Service of the Ministry of Defence, the service for the protection of the
13 constitutional orders or the military or civilian prosecutor. In other
14 words, that any of these bodies mentioned above had ever submitted a
15 report or information to General Markac that members of the joint forces
16 of the special police, or of the Lucko Anti-Terrorist Unit, had committed
17 a criminal offence, and that General Markac did not take the necessary
18 steps, or, rather, that he omitted to perform his duties as a commander.
19 The Defence will show that General Markac never, in any way, concealed
20 unlawful -- any unlawful conduct of a member of his subordinate units,
21 nor -- nor did he influence any bodies -- investigation or jurisdiction
23 The Defence will also show that General Markac, as commander of
24 the joint forces, had no duty or authority to investigate perpetrators of
25 crimes, and that this duty and authority fell exclusively within the
1 jurisdiction of the crime investigation police of the Ministry of the
2 Interior and the military police of the Ministry of Defence of the
3 Republic of Croatia, as well as of military and civilian prosecutors.
4 The only duty my client had was to inform of any crime possibly
5 committed, the relevant bodies of the Croatian government, or to satisfy
6 him, beyond any doubt, that those bodies had been informed about the
7 unlawful conduct of a member of the joint forces of the special police,
8 or of the anti-terrorist unit Lucko, which was a unit that, by its
9 establishment, was assigned as part of the sector of special police of
10 the Ministry of the Interior of the Republic of Croatia.
11 Your Honours, given the legal and factual context that the
12 Defence will present, we realistically believe that the Trial Chamber
13 will be satisfied that my client is innocent and will hand down a fair
14 decision, acquitting General Markac of any guilt or responsibility.
15 [In English] I have nothing further. Thank you.
16 JUDGE ORIE: Thank you, Mr. Mikulicic.
17 May I, not on behalf of the Chamber, but just as a personal
18 observation, repeat some of the concern I addressed yesterday, in terms
19 of evidence to be lead on matters that had happened between 1991 and
21 Just to give you one example, on page 9, line 23 and following,
22 you said: "The Defence will therefore demonstrate that when liberating
23 the occupied territories, the armed forces of the Republic of Croatia
24 acted in the name and on the authority of a sovereign state with
25 international legal personality."
1 I never gained the impression until now that this was in dispute
2 but I'm looking at the Prosecution to find out whether the Prosecution
3 takes the view that in Operation Storm when occupied territories were
4 militarily regained, that the armed forces of the Republic of Croatia
5 acted not in the name or on the authority of a sovereign state or of such
6 a state without international legal personality.
7 I never got that impression, but am I wrong, Mr. Hedaraly?
8 MR. HEDARALY: No, Mr. President, you are correct.
9 JUDGE ORIE: Yes.
10 Mr. Mikulicic, which means that you are announcing that you will
11 lead evidence on a matter which is not in dispute. Yesterday and today
12 we've heard whether or not the Martic case would be a source for facts to
13 be established. I take it that the parties are aware that, if the
14 parties do not rely on Article 94, and it seems that in the Defence cases
15 the events between 1991 and 1994 gain prominence, that, of course, the
16 Chamber could consider to take judicial notice proprio motu from some of
17 what has been decided in the Martic case.
18 Again, I'm focussing now on apparently this matter. I wouldn't
19 say that up until now that the Chamber was not aware that the destruction
20 of villages, of Croat villages, killings as described in the
21 Martic Judgement, the Chamber never got the impression that it was
22 considered to be irrelevant for the Defence case but it now apparently
23 takes a prominence which may need further attention, is what is the most
24 efficient way in establishing what facts were in this period of time,
25 irrespective of whether those facts would explain or not explain what
1 happened later, whether there was any link or not, but just to start with
2 the facts.
3 Further, I have one question to you, Mr. Mikulicic, and I'm
4 referring to page 13, line 21. You said:
5 "Although the Prosecution itself is evidently aware of the
6 motives and mechanisms of the departure of the Serbs, and therefore these
7 facts could be stipulated through agreement among the party, in the
8 absence of such agreement, the Defence will demonstrate and prove at
9 trial that the mass-scale departure of Serb population from the
10 temporarily occupied Croatian state territory was the result of the
11 political ideology of the Krajina authorities and that the departure was
12 meticulously prepared and organized as a political option, in the event
13 of the Krajina territory being reintegrated into the state territory of
14 the Republic of Croatia."
15 I'm not addressing the fact that this is one sentence which takes
16 seven lines, but it is well structured. I'm not commenting on this being
17 an important issue in which, as I understand, the Markac Defence will
18 lead evidence, but the beginning of this sentence, "Although the
19 Prosecution itself is evidently aware of the motives and mechanisms,"
20 they refuse to agree," which sounds as if they are not acting in good
21 faith and that they just do not want to agree on something they
22 themselves know is the truth. That is, I don't know whether you intended
23 to say or whether you just wanted to express that no agreement could be
24 reached on this point.
25 So is it bad faith or just a difference of opinion which you
1 wanted to express?
2 MR. MIKULICIC: I believe, Your Honour, that is the second point
3 that you mentioned, is the disagreement of the opinions, and my statement
4 that the Prosecution is aware of that situation comes from the Martic
5 case and from the position of the Prosecution in the Martic case.
6 So it is more my conclusion than the product of mutual agreement
7 that we reached between us.
8 JUDGE ORIE: Yes. You say it is more than just a disagreement.
9 MR. MIKULICIC: Yes.
10 JUDGE ORIE: It is also what you have taken from the OTP's
11 position in the Martic case.
12 MR. MIKULICIC: That's correct, Your Honour.
13 JUDGE ORIE: Thank you for this explanation.
14 MR. MISETIC: Mr. President, I feel the need to rise because,
15 along this line, we have actually added on our 65 ter exhibit list the
16 Prosecution's pre-trial brief and final briefs from these other cases,
17 and I just wish to add along this lines that in the pre-trial phase of
18 this case, the Gotovina Defence used the Martic pre-trial and final trial
19 briefs and simply reformulated them as agreed facts because that was a
20 task that the Pre-Trial Judge had assigned us to engage in. And we, in
21 fact, couldn't reach agreements on matters that had been alleged in the
22 briefs by the Prosecution in that case, including, to follow up on
23 Mr. Mikulicic, that the allegations in that case were that there was a
24 deliberate policy by the Martic JCE to instill fear in its own
25 population. That was an allegation in that brief. We've proposed it as
1 an agreed fact. We did not get agreement from -- from the Prosecution.
2 So to that extent, and just to fully clarify the record, and in the event
3 the Prosecution sees us -- I'm sorry, the Trial Chamber later sees us
4 using those exhibits, that's the basis for it.
5 JUDGE ORIE: Yes. It certainly is a matter to be explored.
6 Perhaps the Trial Chamber could assist the parties so as to not
7 unnecessarily spend time on leading evidence on matters which can be
8 established or agreed upon or judicial notice be taken of, without
9 hearing that evidence. It's not because we don't want to hear the
10 evidence, but we want to come as quickly as possible to what are the
11 facts and then rather hear how these facts are interpreted, and how these
12 facts are considered by the parties on the issues, which are the core of
13 this case.
14 I make a similar observation, for example, I have not spent any
15 attention on it yet, but if you, Mr. Mikulicic, want to establish there
16 was agreement, an economic agreement reached with the RSK in 1994, well,
17 I don't know whether that is in dispute. Of course, the meaning of that
18 may be a different thing. But I heard a lot of things of which I hardly
19 could imagine that such an agreement, of course, I have not focussed on
20 it yet, but either it exists or doesn't exist, it has been signed, it has
21 not been signed. It's -- unless there's any special issue about this
22 agreement, but if it has been concluded, then it would be an easy thing,
23 I think, to bring this to the attention, and to make the Chamber consider
24 this factual element in what is an element in a story totally different,
25 perhaps for you, as it is for the Prosecution. But as a fact, I cannot
1 imagine that it would be difficult to establish and that we would have
2 to -- I mean, parties can jointly or from the bar table without any
3 objections from the Prosecution, it could be tendered and say, Okay, we
4 know that such agreement existed and it contained this, this, and this.
5 These are just brief observations on my part, mainly aiming at
6 trying to make the presentation of the Defence case as efficient as
7 possible and allowing the Chamber to focus on the issues which really are
8 in dispute, and to find other ways of informing the Chamber about matters
9 which are of a factual nature and are not much disputed.
10 [Trial Chamber and legal officer confer]
11 MR. HEDARALY: Mr. President, it's Courtroom I at 9.00 on
12 Tuesday, June 2nd.
13 JUDGE ORIE: Just checking whether that was correct or not, and
14 you certainly understood my call for efficient use of time in this
15 courtroom. I would also check whether this appears in my agenda as it
16 should appear.
17 You're perfectly right, Mr. Hedaraly. If there are no further
18 procedural matters to be raised, we will adjourn, and we will resume on
19 Tuesday, the 2nd of June, 9.00, Courtroom I.
20 --- Whereupon the hearing adjourned at 10.41 a.m.,
21 to be reconvened on Tuesday, the 2nd day of June,
22 2009, at 9.00 a.m.