1 Tuesday, 31 August 2010
2 [Open session]
3 [Defence Closing Statement]
4 [The accused entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE ORIE: Good morning to everyone in and around the
8 Madam Registrar, would you please call the case.
9 THE REGISTRAR: Good morning, Your Honours. Good morning to
10 everyone in and around the courtroom. This is case number IT-06-90-T,
11 the Prosecutor versus Gotovina et al. Thank you.
12 JUDGE ORIE: Mr. Misetic, are you ready to proceed?
13 MR. MISETIC: I am, Mr. President.
14 JUDGE ORIE: Please do so.
15 MR. MISETIC: Thank you. Good morning again, Your Honours.
16 Picking up where I left off yesterday on the burden of proof, I
17 do wish to add one point and that is to ask the Trial Chamber to
18 carefully review the Prosecution's final brief and final argument to
19 determine whether they have actually applied the right burden of proof to
20 the arguments they advance. Indeed, at trial, it would occur that the
21 Prosecution would examine witnesses without regard to the proper standard
22 of proof. See, for example, the cross-examination of Professor Corn,
23 transcript 21481, lines 14 to 16.
24 If you turn to page 514 of the Prosecution's final brief, the
25 Prosecution says:
1 "Even Defence expert Corn, who believed it was not Gotovina's
2 intention to shell whole towns, acknowledged that a reasonable
3 interpretation of Gotovina's order is an order to conduct an unlawful
4 attack on those towns. Of course, what the Prosecution has to prove is
5 the inverse. That is, that Professor Corn's interpretation is
6 unreasonable and the Prosecution's interpretation is the only reasonable
7 interpretation of the evidence.
8 We also ask you to check through some of the murder schedules
9 that the Prosecution appended. See, for example, Annex B, page 27, where
10 the Prosecution says the cause of death is unknown but possibly the
11 victim sustained gun-shot wounds. Or see 283, Annex B, page 11, the
12 witness was probably executed by HV policemen.
13 So we ask you to carefully go through the brief because it does
14 not appear on its face that the Prosecution applied the right burden of
15 proof, nor did the Prosecution claim in its brief that it was applying
16 the right burden of proof.
17 In an effort to convince you that you should not believe your own
18 eyes concerning the express orders of General Gotovina and the entire
19 Croatian leadership to prevent and punish crime, the Prosecution provides
20 the following remarkable statement in its final brief which is
21 tremendously insightful in unravelling the essence of the Prosecution's
22 case against General Gotovina. We can show paragraph 15 of the
23 Prosecution's brief:
24 "JCE members were able to issue generic instructions to prevent
25 or stop the looting and burning, secure in the knowledge that such
1 instructions would be ineffectual - thereby intentionally permitting and
2 condoning crimes while simultaneously creating the false impression that
3 they did not intend them."
4 Your Honours, we give you the simple answer. States and armies
5 give orders because they want them followed. Croatia was no different.
6 Croatia had given similar orders during Operation Flash only three months
7 earlier, and as explained in our brief, Croatia was praised by the
8 Secretary-General and the representatives of the international community,
9 including, Witness Galbraith, who, on the 1st of August, told
10 President Tudjman that Croatia's conduct in Western Slavonia "earned him
11 tremendous credit."
12 The Secretary-General praised Croatia for its efforts to protect
13 the human rights of Serbs in Western Slavonia, and you have seen that in
14 our brief. Why therefore Croatia would be "secure in the knowledge that
15 such instructions would be ineffectual when, in fact, 60 days earlier
16 they were effectual is not explained by the Prosecution. However, I am
17 certain that in rebuttal the Prosecution will come up with a creative
18 conspiracy theory to explain that as well. The Gotovina Defence will
19 advance the simple and straightforward explanation of that evidence.
20 The Prosecution desperately tries to crawl out from under the
21 overwhelming weight of the evidence of the efforts of the Croatian
22 authorities, including General Gotovina, to prevent and punish crime by
23 arguing that their orders to stop criminality were fake orders not
24 intended to be implemented. Yet they offer no evidence in support of
25 that radical inference.
1 You have not seen a single Presidential transcript of secret
2 conversations where someone suggests that orders should be issued but not
3 enforced. No witness testified that they ever heard a suggestion even
4 that fake orders be issued for the benefit of the international
5 community. Indeed, the Prosecution offers you nothing in terms of
6 evidence that would allow the Chamber to cast aside express orders in
7 favour of a radical inference. Indeed, as we point out in our brief at
8 paragraph 375, the Blaskic Appeals Chamber expressly rejected the use of
9 unsubstantiated inferences to disregard express evidence in the record.
10 The Prosecution yesterday tried to distinguish the Blaskic precedent on
11 drawing inferences. It cannot.
12 The fact remains and the law remains that you cannot use
13 unsubstantiated inferences to draw an inference to cast away express
14 evidence to the contrary, and that is the case here. Whether the
15 Trial Chamber could draw an adverse inference if there was evidence of
16 that inference in the record is not an issue that arises in this case.
17 Thus, the Prosecution's reliance on Milutinovic is misplaced. In
18 Milutinovic, the Trial Chamber determined that the accused Pavkovic
19 issued phoney orders to adhere to international law on the basis of
20 specific bad acts by that accused that were contrary to the orders he had
21 issued, such as using units in combat against the express orders of his
22 superiors, omitting relevant knowledge of criminal events from his
23 reports, deliberately underreporting murder incidents to his superiors
24 despite having an express obligation to do so. Here, there is no
25 evidence of any such bad acts by General Gotovina, or President Tudjman.
1 In fact, the express evidence in the record can only lead you to
2 the inference that the highest officials in Croatia, including the named
3 members of the alleged JCE, wanted crime to stop and issued orders to
4 make it stop. The internal conversations of the Croatian authorities to
5 which the international community, the media, and any outsiders were not
6 privy demonstrate that the Croatian leadership established a policy to
7 stop all crime and, in fact, issued orders to stop that crime. See, for
8 example, P463, a private conversation between Radic and Tudjman, two
9 named members of the JCE, where they condemn burning as the worst evil.
10 See Prime Minister Valentic comments in a closed session government
11 meeting on the 23rd of August. That's D426, page 21:
12 "Special care has to be provided to the Serb population."
13 You've seen General Gotovina berating his troops on the
14 6th of August on the Knin meeting video; again, a private meeting. And
15 if we look on the screen, P918, this is the political affairs warning
16 issued within the chain of command telling subordinates -- we can scroll
17 up, please. In that second paragraph, after condemning crime says:
18 "Following the policy of the Supreme Commander,
19 Dr. Franjo Tudjman as well as the instructions of the Defence minister
20 and the political administration of the Defence Ministry of the
21 Republic of Croatia, it is necessary to immediately prevent the
22 following ... the continued torching and destruction of facilities and
23 property ... the killing of livestock; the confiscation of property; and
24 inappropriate conduct toward remaining civilians and prisoners of
25 war ..."
1 How the Prosecution could say you should draw an inference, and
2 not only an inference but that the inference they suggest is the only
3 reasonable inference that you can draw on the evidence, is unexplained by
4 the Prosecution. It is clear that these are the private conversations,
5 private messages being sent within the Croatian government. That is what
6 the policy is. You have absolutely no evidence from the Prosecution
7 whatsoever that would contradict this message, a note from someone
8 saying, Relax on enforcing orders; don't be in a hurry to investigate.
9 With respect to every single important issue in this case,
10 Your Honours, General Gotovina has asked you to take the simple
11 explanation and the Prosecution has done the opposite. Let's take a look
12 at what each party says on the key issues in this case.
13 The first issue I would like to address is paragraphs 121 and 352
14 of the Prosecution's final brief. The Prosecution in its final brief
15 has, for the first time, added a new allegation of General Gotovina's
16 participation in the alleged JCE. Now it is alleged that one of the four
17 ways General Gotovina participated in the JCE was by ensuring that
18 General Cermak became the primary conduit for the complaints and queries
19 of international officials and that he did so by telling General Forand,
20 on the 8th of August, that all complaints of internationals, including
21 complaints about crimes, were to be referred directly to General Cermak.
22 This was never put to a single witness in the case. That allegation is
23 not in the indictment. It's not in the Prosecution's pre-trial brief.
24 It wasn't argued at 98 bis. The Prosecution thus denied the Chamber and
25 the Defence the ability to test that allegation. Nevertheless, it is
1 clear that this theory is factually wrong.
2 We draw the Trial Chamber's attention to Exhibit D297, which is
3 General Forand's agenda of the 6th of August for a meeting with the
4 "military governor" which UNCRO passed to the HV liaison officer,
5 Witness Lukavic. That was two days before Forand met with
6 General Gotovina.
7 We turn your attention to D1667 which are the notes of
8 Tony Banbury, Mr. Akashi's assistant, of a meeting on the 7th of August
9 between General Cermak, General Forand, John Alstrom, and Yasushi Akashi.
10 And if you turn to page 39 at the bottom, it is clear that General Cermak
12 "We will arrange a meeting between your human rights people and
13 my headquarters tomorrow. Headquarters Knin will always be open to
14 you ..."
15 And if we turn the page, to General Forand's complaints about
16 freedom of movement, General Cermak said: "If you have any problems,
17 please see me personally."
18 That was one day before General Forand met with General Gotovina.
19 Accordingly, this claim by the Prosecution must fail. It is clear that
20 this argument is advanced at the last minute, because the Prosecution
21 cannot address a fundamental issue raised by the Defence throughout the
22 trial, and that is that no one went to General Gotovina to address crime
23 after Operation Storm. While the Prosecution can easily try to dismiss
24 that with respect to Croatian officials by simply saying they were in a
25 JCE, so, of course, they had secretly decided not to go to the man who
1 could solve all the problems because that was part of the conspiracy.
2 They couldn't address why the internationals weren't going to
3 General Gotovina, so, playing Devil's Advocate, they turned it around and
4 said it must be because General Gotovina did something devious to deflect
5 the internationals in furtherance of the JCE, so the lack of notice to
6 General Gotovina is, in fact, proof of his guilt.
7 Again, that's the conspiracy theory. In paragraph 121 of its
8 brief, the Prosecution argues that a second way that General Gotovina
9 participated in the JCE was by deliberately failing to take necessary and
10 reasonable measures. It should be noted that we called an expert
11 witness, General Jones, a three-star US general with 36 years of
12 experience, to testify specifically about necessary and reasonable
13 measures. That is because the Prosecution, just weeks before the end of
14 the Prosecution case, decided not to call its expert, General Pringle, to
15 testify as to whether he believed General Gotovina took all necessary and
16 reasonable measures under the circumstances.
17 So we called General Jones who testified on direct examination
18 that General Gotovina took all necessary and reasonable measures, before,
19 during and after Operation Storm, and added that he couldn't think of a
20 single thing that he would have done differently in General Gotovina's
21 place. Through this testimony in direct examination, Your Honours, the
22 Gotovina Defence put a challenge directly to the Prosecution, pursuant to
23 Rule 90(H): Put your best case forward as to what the necessary and
24 reasonable measures were that General Gotovina allegedly failed to take.
25 The best case they could put forward can be found in footnotes 1048,
1 1050, and 1051 of the Gotovina Defence final brief.
2 Because those Prosecution arguments were discredited during trial
3 and during the cross-examination of General Jones, the Prosecution now
4 advances new arguments concerning necessary and reasonable measures that
5 were never advanced at trial. For the record, we object to these new
6 arguments being raised for the first time in final argument and final
7 briefs, denying the Trial Chamber and General Gotovina the opportunity to
8 challenge those theories, to cross-examine witnesses on them, to put its
9 own witnesses on to rebut those claims. The time to advance the
10 arguments the Prosecution is advancing now was when a three-star
11 US general testified that General Gotovina took all necessary and
12 reasonable measures. That was the time to confront General Jones and
13 General Gotovina because then those new theories could be tested.
14 Because the Trial Chamber cannot test the new theories advanced by the
15 Prosecution, they should be afforded no weight. What you should rely on
16 is the expert testimony of General Jones and contrast it with the case
17 the Prosecution put to him in cross-examination. You should not rely on
18 the bald opinions of Prosecution trial counsel on what necessary and
19 reasonable measures would have been.
20 On the issue of effective control, first, Your Honours, let me
21 preface this by saying, in the entire discussion yesterday about
22 necessary and reasonable measures, effective control, notice, you were
23 again never told what the burden of proof is and never told whether the
24 analysis you were being put forward -- or that was being put forward was
25 being measured against the burden of proof. As the Chamber is aware, the
1 Appeals Chamber has ruled that with respect to each element of command
2 responsibility the Prosecution must prove its case beyond a reasonable
3 doubt. That means you must conclude that there is no reasonable
4 interpretation of the evidence other than that General Gotovina had
5 effective control, other than that he had notice, and other than that he
6 failed to take necessary and reasonable measures.
7 Now with respect to the issue of effective control, the
8 Trial Chamber specifically asked the Prosecution to address the
9 commentary to Article 87 of the protocol of the Geneva Conventions. That
10 provision says it is self-evident that the obligation applies in the
11 context of the responsibilities as they have devolved over different
12 levels of the hierarchy, and that the duties of the non-commissioned
13 officer are not identical to those of a battalion commander, and the
14 duties of the latter are not identical to those of the divisional
16 Now, despite the Trial Chamber specifically asking the
17 Prosecution to address this issue, in essence you were told yesterday the
18 commentary is irrelevant. You were never told what in the context of
19 this case it means that the obligation applies as the responsibilities
20 devolve over different levels of the hierarchy. The Prosecution remains
21 of the view that General Gotovina, at the top of the chain of command,
22 should have taken the measures that an NCO at the bottom of the chain of
23 command would take.
24 Moreover, we dispute the Prosecution's claim that we have somehow
25 misstated the Oric Appeals Chamber decision. We quoted it verbatim in a
1 block quote in our brief. The Prosecution left out this portion of the
2 Appeals Chamber's finding:
3 "The separate question of whether - due to proximity or
4 remoteness of control - the superior indeed possessed effective control
5 is a matter of evidence, not of substantive law."
6 That is at paragraph 618 of our brief. That is the issue we
7 raised. The Prosecution doesn't respond.
8 With respect to the issue of Grahovo, General Jones testified
9 that prior to Storm, General Gotovina took all necessary and reasonable
10 measures after the Grahovo operation to prevent and punish crime. The
11 Prosecution offered no expert testimony to contradict General Jones's
12 opinion. Moreover, the Prosecution ignores the context in which
13 General Gotovina was operating after the Grahovo operation but prior to
14 Operation Storm. For example, Prosecution completely ignores
15 Operation Vaganj and the fact that the Croatian leadership was aware that
16 the Serbs were planning an attack by forces under Ratko Mladic's command
17 against General Gotovina's forces in the Grahovo-Glamoc area. Which
18 turned out to be true, because the VRS Drina Corps arrived in the Grahovo
19 area on the 9th of August. It is within that context, General Gotovina
20 facing an imminent threat, that he was forced to take the measures that
21 were reasonable in those circumstances. The Prosecution falsely claims,
22 at paragraph 151 and again in its argument yesterday, that:
23 "General Gotovina took steps to conceal his subordinates' crimes
24 at Grahovo" by ordering that "report through a messenger that Glamoc and
25 Grahovo were shelled by phosphoric shells."
1 The Prosecution, of course, ignores the fact that what
2 General Gotovina said was the truth. In fact, the wider areas of Grahovo
3 and Glamoc, i.e., the forested areas, were shelled by phosphoric shells
4 by the HV. That's Exhibit D1980. And indeed, Ratko Mladic in his diary,
5 on the 2nd of August, referenced incendiary munitions. That's D1465,
6 e-court page 243. Accordingly, the Prosecution condemns General Gotovina
7 for reporting the truth. Next the Prosecution argues that
8 General Gotovina somehow is responsible because troops under his command
9 had suffered in the four and a half prior years at the hands of the
10 Serbian JCE and that, therefore, they were prone to revenge.
11 Your Honours, virtually everyone in Croatia had suffered some
12 injustice during the war in Croatia. From Vukovar and Ilok in the east,
13 all the way to Dubrovnik and Prevlaka in the far south. In theory,
14 virtually every Croatian could have had a motive for revenge. The
15 Prosecution argues that it does not dispute Croatia's right to retake its
16 lands, it just disputes Croatia's right to use Croatians to do it.
17 On the issue of necessary and reasonable measures, we have said
18 all along that General Gotovina took necessary and reasonable measures to
19 prevent and punish crime. Look at the evidence, Your Honours.
20 General Gotovina was there when Minister Susak passed on the
21 US conditions, on the 2nd of August, to the entire military leadership.
22 Again, a private conversation, a state-secret conversation. Which
23 included that Military District commanders were to pass on orders to
24 prevent "any kind of uncontrolled conduct, torching, looting, et cetera."
25 That's Exhibit D409. As Lausic testified, Susak also ordered that
1 measures be taken to prevent any behaviour that would require soldiers to
2 be brought before a court. That's transcript 15166, lines 14 to 22.
3 Yet OTP says, at paragraph 16 of its brief, that Susak's order
4 which was given in private to the top officials of the military was
5 essentially a pretend order "aimed at avoiding liability for the crimes
6 rather than genuinely preventing them."
7 The Prosecution, of course, fails to identify who Susak was
8 allegedly pretending to. Nor is there any evidence in the record, in the
9 form of witness testimony, Presidential transcript and the like, to
10 support OTP's inference that Minister Susak's order was not intended to
11 be followed.
12 Again, Your Honours, the Gotovina Defence says that when Minister
13 Susak order that "any kind of uncontrolled conduct," including torching
14 and looting were to be prevented, that's what he meant. The Prosecution
15 says when Susak privately told the military leadership to prevent looting
16 and torching he meant allow looting and torching.
17 General Gotovina issued explicit orders prior to Storm that all
18 criminal activity was to be eliminated. Consistent with the
19 US conditions and Susak's instructions, General Gotovina issued the order
20 at Exhibit D201, page 2. Here's what he ordered:
21 "Familiarising units with the need to eliminate all negative
22 occurrences that will surface in the course of combat operations with a
23 focus on preventing torching and destruction of larger populated areas
24 and towns."
25 Now, even though General Gotovina ordered the elimination of all
1 negative occurrences, the Prosecution argues that this order meant that
2 units should protect populated areas but that General Gotovina wanted
3 them to burn down rural areas. If we could see paragraphs 156 and 157 of
4 the Prosecution's final brief.
5 The second sentence there:
6 "The Political Activities Plan attachment indicates that Gotovina
7 and the Split MD Command expected burning and destruction to occur and
8 accepted the anticipated destruction of rural areas.
9 "Consistent with those instructions and with the JCE members'
10 focus on quickly colonising the larger towns in the Krajina with Croats,
11 Croatian forces left the larger towns relatively intact, but devastated
12 rural areas in Sector South."
13 Herein lies another fundamental contradiction in the
14 Prosecution's case. The Prosecution doesn't argue that General Gotovina
15 was issuing weak, repetitive, ineffective orders. They do that later
16 when they try to discredit General Gotovina. They're arguing here that
17 General Gotovina issued an effective order, that General Gotovina issued
18 an order to protect the larger towns and that that order was implemented,
19 but that General Gotovina deliberately failed to mention rural areas,
20 thereby signalling to subordinates that he wanted them burned down.
21 Again, the Prosecution is alleging that General Gotovina issued
22 effective orders prior to Storm.
23 I ask you, Your Honours, is this interpretation by the
24 Prosecution the only reasonable interpretation of this order? This is
25 nonsense. We say that when General Gotovina ordered the elimination of
1 all negative occurrences he meant eliminate all negative occurrences.
2 The Prosecution argues that it means, I order you to burn down rural
4 Once again, they never put this interpretation of this order to
5 anyone, nor is there any evidence in the record to support their
6 interpretation. Not even Theunens suggested. But in their blind zeal to
7 obtain a conviction, the Prosecution would rather argue the ridiculous
8 than concede an obvious point.
9 Further on in D201, at page 2, General Gotovina orders advising
10 members of units on conduct with civilians and POWs in accordance with
11 the Geneva Conventions. Now, what the Prosecution claims is a
12 boiler-plate order, in fact, was put into practice. At paragraph 125 the
13 Prosecution calls it a generic reference to the Geneva Convention that
14 was "manifestly inadequate." Apparently General Gotovina, according to
15 the Prosecution, should have itemised what Croatian forces shouldn't do:
16 Don't kill, don't burn, don't loot, don't torture. They never put this
17 claim to any witness.
18 But you heard that this order was implemented. You heard that
19 booklets were handed out on the Geneva Conventions to troops prior to
20 Storm. Those booklets are in evidence as D533 and D1602. As
21 Witness Sudac testified at transcript 21367, lines 21 to 24, the
22 commanders did, in fact, itemise for their subordinates what General
23 Gotovina wanted:
24 "I remember what our superior officers were telling us. It was a
25 war and we remembered the most important things. Don't kill, don't loot,
1 don't rape, help all those who are wounded, such basic things."
2 Evidently, Your Honours, General Gotovina's subordinate
3 commanders were able to figure out just fine what General Gotovina wanted
4 when he ordered that units must treat civilians and POWs in accordance
5 with the Geneva Conventions. You saw that subordinate commanders, such
6 as the commander of the 4th Guards Brigade, passed down these orders to
7 their subordinates. That's P1202, page 12.
8 During Operation Storm, General Gotovina continued to place an
9 emphasis on preventing crime. On the evening of 4 August, the political
10 affairs officer, at the evening briefing, reminded all commanders that
11 Knin must not suffer the same fate as Grahovo. On the morning of
12 5 August, General Gotovina personally ordered "maximum fairness towards
13 civilians and the UN," in all operative groups and -- and to all
14 commanders as his forces were about to enter populated areas, such as
16 On 6 August, you have seen the Knin video many times, where
17 General Gotovina demanded proper conduct by subordinates.
18 Once again, the Prosecution contradicts itself on this video.
19 First it claims, in paragraph 166, towards the bottom, as Cermak
20 observed, Gotovina was "not upset about the crimes and what the military
21 had done, he was upset because the town was dirty and there were no state
22 signs anywhere." But when they had to write a section on General Cermak,
23 at paragraph 358, apparently the person who wrote the Cermak portion of
24 brief didn't coordinate the portion with the Gotovina portion of the
25 brief so we get this admission:
1 "Cermak attended Gotovina's briefing in Knin Fortress on
2 6 August 1995, from where villages around Knin were plainly seen burning,
3 and heard Gotovina berate HV commanders for the looting and misdeeds of
4 HV soldiers."
5 Well, which one is it? Was he berating HV commanders for the
6 looting and misdeeds of HV soldiers, as is plainly evident on the video?
7 Or did he not care about that and just was concerned that the town was
9 Your Honours, no reasonable person could look at that video and
10 say that General Gotovina did not have a genuine intent to prevent and
11 punish crime.
12 On the 10th of August, General Gotovina issued D204. If we can
13 see this on Sanction, please.
14 On its face, in the subject line it says:
15 "Order on compliance with military disciplinary measures."
16 In point 1 -- actually in the introduction, it says it is being
17 issued in order to prevent theft of property, undisciplined conduct, and
18 to save human lives. Contrary to the Prosecution's claim that
19 General Gotovina issued this order pursuant to an order from
20 General Cervenko, you will see that nothing in the introduction indicates
21 as such.
22 And you've seen many orders where the Court can confirm the
23 standard procedure was to refer to a superior order if, in fact, someone
24 was acting pursuant to it.
25 In point 1, General Gotovina prohibits arbitrary movement of HV
1 members in the liberated areas without the knowledge of superior
3 If we go to paragraph 2, he says:
4 "Take all necessary measures and fully engage in the
5 implementation of the military disciplinary conduct and the maintenance
6 of order in the area of responsibility, and prevent arson and all other
7 illegal acts. Take resolute measures against anybody who conducts
8 himself in an undisciplined manner."
9 You have seen P918, which we saw earlier this morning. It
10 specifically not only says what the policy is, what the policy of
11 President Tudjman and Minister Susak is, but if we scroll to the bottom
12 of the page please, in bold:
13 "In cooperation with the information and security service," that
14 would be the SIS, "and the military police, take repressive measures and
15 launch disciplinary proceedings [sic] against those who do not abide by
16 the instructions."
17 Despite this, the Prosecution at paragraph 221 of its brief says:
18 "Gotovina did not consider his subordinates' crimes against Serbs
19 and their property to constitute a problem of military discipline."
20 At paragraph 223 they say:
21 "Gotovina's orders contain no explicit instructions to his
22 subordinates to impose disciplinary measures to address indictment
24 Well, Your Honours, the only way anyone could conclude that is if
25 you choose to ignore D204 and P918. Is this the only reasonable
1 explanation of the evidence which is the Prosecution's burden of proof?
2 Moreover, they never put this interpretation to General Jones when they
3 had a Rule 90(H) obligation to do so.
4 With respect to demobilisation, Your Honours, it is absolutely
5 clear that General Lausic testified that the most effective disciplinary
6 measure available was demobilisation. P2159, paragraphs 191 and 211.
7 Moreover, Witnesses Botteri concurred. The Prosecution mischaracterises
8 General Lausic's position.
9 And if we turn to the next exhibit, this is also from P2159,
10 paragraphs 35 and 36, from the statement of Mate Lausic. And he explains
11 not only the use of demobilisation but what the role of the SIS is, and
12 this is instructive to address the Prosecution's arguments yesterday
13 about who had command over political affairs and SIS. Read carefully how
14 Mr. Lausic explained the role of political affairs, SIS and the military
15 police. And he says it was the role of SIS to observe and then to report
16 a problem to a commander, and to eliminate any person from the unit who
17 was likely to be a problem.
18 Beginning of page 36:
19 "For example, a SIS officer tells a battalion commander there was
20 a member who should be demobilised. Let's say the commander says, 'All
21 right leave him here, he is okay.' This SIS officer's commander would be
22 told at SIS centre." And then if you read the rest of the paragraph, SIS
23 goes all the way to Zagreb and up the military chain of command, if
25 But this goes back to all of the litigation we had about vertical
1 subordination and horizontal coordination with the Split Military
2 District Command.
3 The Prosecution, nevertheless, insists that demobilisation "was
4 an attempt by Gotovina and his subordinate commanders to absolve
5 themselves of responsibility for criminal elements within the HV."
6 There is, of course -- and this is at paragraph 231. There's, of
7 course, a glaring absence of a footnote in the Prosecution's brief for
8 that proposition. Why? Because they're making it up. There's no
9 evidence in the record to support that position. No one testified to it.
10 They did not put this position to -- proposition to any witness in the
11 case, not to Lausic himself, not to General Jones, not even to Theunens.
12 Indeed, what you are offered on the issue of demobilisation is the
13 opinion of Prosecution trial counsel. That is not proper evidence for
14 this Trial Chamber to consider. In fact, the only evidence in the record
15 is from the Prosecution's own witnesses, Lausic and Botteri, that
16 demobilisation was the most effective disciplinary measure under the
18 The Prosecution also claims in its brief that there is no
19 evidence of a single demobilised soldier subsequently being prosecuted
20 for a crime. That's at paragraph 233. This is false. See, for example,
21 several examples contained within Exhibit D1381. Moreover, Witness
22 Perkovic was a viva voce Defence witness who testified that he was
23 demobilised while in custody as a result of his alleged involvement in
24 the Varivode murders and subsequently was prosecuted for those murders.
25 That's transcript 19527, lines 12 to 21; 19546, line 23, to 19547,
1 line 7.
2 The Prosecution claims at paragraph 155 of their brief and argued
3 again yesterday that General Gotovina ordered no reporting or monitoring
4 of his orders to prevent and punish crime. You were told yesterday
5 General Gotovina "expected his orders to fail and when they did not --
6 and when they did, he did not want to know about it."
7 In fact, as the Prosecution is very well aware and which they
8 implicitly admitted at the end of their argument yesterday,
9 General Gotovina didn't have to issue a separate order to report on the
10 implementation of these orders because that was already the job of
11 political affairs and SIS. And in fact, they did report back to
12 General Gotovina on the implementation of those orders and we have those
13 reports in evidence; D984, D810, P1133, P1134.
14 Now, after first arguing that General Gotovina ordered no
15 reporting, the Prosecution later tried to say that the political affairs
16 was subordinated to General Gotovina and that part of the job of the
17 political affairs officer of the Split Military District staff was
18 "monitoring." Well, monitoring what? Monitoring the implementation of
19 General Gotovina 's orders.
20 Prosecution can't have it both ways, and the evidence, including
21 the documentary evidence I just cited, is perfectly clear that there was
22 monitoring of the implementation of General Gotovina's orders.
23 We also saw, at nightly briefings, that MPs would advise if there
24 was a problem in the chain of command. That's P71, page 116. We also
25 saw commanders reporting problems at the nightly briefings. P71 again,
1 page 116. And we saw that every single time that a problem was reported
2 back to General Gotovina, General Gotovina took action.
3 The Prosecution cannot keep its story straight as to whether
4 General Gotovina was issuing effective orders or ineffective orders. The
5 Prosecution's positions depend solely on the context, whether
6 General Gotovina would in the context be more discredited by saying that
7 his orders were effective or by saying his orders were ineffective. For
8 example, the Prosecution's argument rests on arguing that
9 General Gotovina's artillery order was effective. His orders to protect
10 the UN were effective. That's paragraph 17. His orders to not hit the
11 UNCRO camp were effective. And as I just showed you a few moments ago,
12 at paragraphs 156 and 157, they argue that General Gotovina's orders to
13 protect populated areas from burning were effective.
14 Now, then, however, at paragraph 192, they argue that
15 General Gotovina's repeated orders encouraged the commission of crimes.
16 They can't deal with the fact that General Gotovina was issuing orders to
17 stop crime so they try to dismiss by saying it was ineffective after
18 starting from the premise that it was General Gotovina's effective order
19 to protect larger towns from burning. Why General Gotovina would think
20 that his orders to protect larger towns would be effective but would
21 think that his orders to protect rural areas from burning, to stop
22 looting, to take disciplinary action, would be ineffective, is, of
23 course, completely unexplained by the Prosecution. There is no logic to
24 what they argue.
25 Moreover, as the Prosecution explained to you how a subordinate
1 would know which are the orders that are supposed to be followed and
2 which are the orders that are supposed to be ignored. Again, how is it
3 that subordinates were able to figure out General Gotovina's intention to
4 protect larger towns but weren't able to figure out or implement his
5 intention to stop crime everywhere else?
6 We turn to paragraph 164 of the Prosecution's brief.
7 "Although Gotovina" -- this is in the middle of the paragraph:
8 "Although Gotovina issued orders that acknowledged these crimes
9 and contained - at least on their face - measures to prevent their
10 continued commission, the content, timing, and number of these orders
11 reveal that Gotovina was pretending to address these crimes while
12 allowing and encouraging their continuance."
13 Pretending to whom, Your Honours? Pretending to his
14 subordinates? This is -- General Gotovina is issuing internal classified
15 orders. He is not issuing orders to the international press. Pretending
16 to whom, I ask the Prosecution. This argument is truly ridiculous, let
17 alone the only reasonable explanation of the evidence. Moreover, once
18 again, they failed to put this argument to any witness in the case. Not
19 to General Jones, not even to Mr. Theunens.
20 The Prosecution argues that by issuing multiple orders to stop
21 crime, "it is only logical" that Gotovina was encouraging crime. Again,
22 no footnote.
23 You'll have to determine, Your Honours, whether the Prosecution's
24 logic is logic you're willing to adopt as the only reasonable
25 interpretation of the evidence.
1 At paragraph 718 of our -- turning now to the attention -- to the
2 question of what the Prosecution claims are measures General Gotovina
3 could have taken, at paragraph 718 of our brief, we explain that the test
4 is necessary measures are appropriate measures which show that the
5 superior genuinely tried to prevent or punish; and reasonable measures
6 are those reasonably falling within the material powers of the superior.
7 Now, the steps that -- most of the steps that the Prosecution
8 identifies in its brief were never put to anyone. According to the
9 Prosecution yesterday, these were "simple and obvious steps." Yet the
10 Prosecution, for some reason, never put most of these simple and obvious
11 steps to any witness in two and a half years of trial.
12 What you heard yesterday in respect to measures within -- against
13 the 134th Home Guard units was based on the military expertise of no one.
14 They are the opinions of Prosecution trial counsel not to put to any
15 witness in the case. They are arguments made up out of whole cloth.
16 Your Honours, when comparing the Defence arguments and the
17 Prosecution arguments, we ask you to note that we called an expert
18 witness who testified that he would have chosen General Gotovina's steps
19 and necessary and reasonable measures. With respect to the measures
20 suggested by the Prosecution yesterday, no one testified that they would
21 have taken those steps. Nevertheless, most of the steps that the
22 Prosecution suggested were in fact implemented. As mentioned previously
23 General Gotovina did not have to issue a separate order on -- on
24 reporting of implementation. General Gotovina did issue orders to
25 enforce disciplinary measures; that's D204 and P918.
1 The Prosecution says that General Gotovina should have tasked the
2 MPs to control crime. This issue has been litigated extensively and
3 doesn't require any further comment, other than to stay that we are
4 confident that the Trial Chamber has well understood who was in command
5 of deploying the military police for crime prevention, investigation, and
6 prosecution. Moreover, I must point out that in discussing the military
7 police, the Prosecution repeatedly claims, such as in paragraph 238, that
8 General Gotovina exercised "command and control over the military
9 police." There is absolutely no evidence for that claim in the evidence.
10 Article 8 makes clear that command and control rested with Lausic alone.
11 It is evident that the Prosecution still does not grasp the concepts of
12 command and control and that command is not synonymous with control.
13 Mr. President, you tried to alert the parties to this
14 distinction, at transcript 2395, lines 8 to 19. And General Forand tried
15 to explain it to the parties, at transcript 4343, line 22, to 4344,
16 line 4. Unfortunately, the Prosecution still does not understand.
17 The Prosecution argues that General Gotovina should have imposed
18 military curfews in Croatia. This argument plainly ignores Croatian law
19 and essentially argues that General Gotovina should have enacted a
20 military coup d'etat against the civilian government of Croatia. It is
21 clear that General Gotovina did not have the legal power to declare a
22 military curfew in liberated areas when the constitutional order of
23 Croatia had been restored. Clearly, the Prosecution would rather advance
24 another hopelessly unsubstantiated argument rather than concede the
1 Finally, the Prosecution claims that General Gotovina should have
2 removed or replaced commanders or imposed disciplinary measures against
3 commanders. This was never mentioned before their final brief. Which
4 commanders, Your Honours? For what? Well, we don't know. And the
5 Trial Chamber doesn't know. Because the Prosecution failed to put this
6 theory to anyone. Not to Theunens, not to General Jones. The
7 Prosecution, of course, will now likely say that he should have
8 disciplined every commander or replaced every commander. Unfortunately,
9 we cannot respond to any such allegation because it hasn't been raised
11 Now consider this: You are being asked to find that
12 General Gotovina failed -- his failure to take such obvious measures was
13 so clear, was so blatantly self-evident that you should find not only
14 that General Gotovina bears responsibility under 7(3), but that it went a
15 step further to wilful intent to allow burning and looting. Yet these
16 obvious self-evident steps were never raised in two and a half years of
18 I think that speaks for itself, Your Honours. We met the case
19 the Prosecution put forward at trial. The rest of these new arguments no
20 weight and no citation to the record.
21 You must conclude that General Jones's opinion is a reasonable
22 interpretation of the evidence.
23 Finally, the Prosecution completely ignores a fundamental issue
24 in our brief, a fundamental issue we raised in opening statement, a
25 fundamental issue we raised with countless witnesses in this case. It is
1 ignored in their final brief and ignored yesterday. Why is it that no
2 one went to General Gotovina after the 6th of August to ask him to do
3 anything? How can it be that General Gotovina is in command of the
4 military police that Lausic is coordinating with the Ministry of the
5 Interior on actions to be taken and yet Lausic never once communicates
6 with General Gotovina? How can it be that Moric testified that
7 General Gotovina's name never came up in conversations on this issue, or
8 that the president's office never discussed General Gotovina on this
9 issue? Or that General Forand writes a letter, one letter, to
10 General Gotovina after Operation Storm to complain about UNCRO vehicles,
11 to complain about treatment of UNCRO at check-points, and to ask
12 General Gotovina to help him write his analysis of Operation Storm for
13 the Canadian government? Never wrote him a letter or even included
14 within that letter a claim that, General Gotovina, your forces are
15 engaged in widespread systematic burning and looting, and you must get
16 them under control. It is completely unaddressed.
17 Your Honours, there was a point at this trial where the
18 Trial Chamber said to General Cross, you would expect that if you are
19 going to be involved in implementation, you should be involved in the
20 planning. I submit to you that that is a blatantly obvious point that
21 the Defence accepts but the Prosecution does not.
22 I take it a step further, Your Honours. It is a blatantly
23 obvious point that if you are involved in the execution, you would expect
24 that you would be contacted to address the matter. General Gotovina was
25 not. In fact, we saw that General Cervenko, General Gotovina's superior,
1 was prepared to directly address General Gotovina whenever he had a
2 concern about General Gotovina. As we see in the alleged mistreatment of
3 Alun Roberts, General Cervenko demanded an explanation from
4 General Gotovina and got it. General Cervenko never once contacted
5 General Gotovina to say, You are not complying with your obligations to
6 enforce discipline.
7 Your Honours, let me conclude by saying that it is absolutely
8 abundantly clear that General Gotovina took all necessary and reasonable
9 measures under the circumstances, and you must enter a judgement of
11 I will now turn over the floor to Mr. Kehoe, who will address
12 issues of the crime base, artillery, and other matters.
13 JUDGE ORIE: Mr. Kehoe, I'm looking at the clock. May I take it
14 that you prefer to -- will you take all the remaining 90 minutes or will
15 there be any further division of ...
16 MR. KEHOE: There will be a further division. There is some
17 concluding comments of approximately 30 minutes by my colleague
18 Mr. Akhavan.
19 JUDGE ORIE: Yes. Then I leave it to some extent to you where to
20 take the break if it is stays within the usual limits.
21 Please keep that in mind.
22 MR. KEHOE: Yes, Mr. President, I will. And I trust that the
23 Chamber will want to break at the usual time of approximately 10.30.
24 JUDGE ORIE: Yes. But if, for example, if ten minutes later you
25 would be finished and someone else would take over, then we would, of
1 course, take the break ten minutes later.
2 Please proceed.
3 MR. KEHOE: Certainly.
4 Your Honours, Court staff, my learned colleagues on both sides of
5 the well, good morning.
6 Before I go into the comments that I have on various aspects of
7 this, I want to harken back just initially to the comments made my
8 friends across the well on the need for accuracy and the need for the
9 Court to carefully examine citations in these briefs, and I know the
10 Chamber will do so, and I know the Chamber will purposely and directly
11 examine many of the allegations, some very serious allegations levelled
12 against these three accused.
13 And I know when the Prosecution levels charges that in the use of
14 artillery in Benkovac, Obrovac, and Gracac, that use of artillery caused
15 civilian deaths and injuries, and I know the Chamber will look and
16 examine that evidence of civilian deaths and injuries in Benkovac,
17 Obrovac, and Gracac which the Prosecution mentions in paragraphs 138,
18 484, and will examine that evidence to see what those deaths and injuries
19 were. Unfortunately, the Chamber will look in vain, because when
20 leveling those allegations against the accused and most particularly
21 against General Gotovina, there is no evidence of any civilian deaths,
22 injuries in Benkovac, Obrovac, and Gracac.
23 So what we learn from the brief that is filed by the Prosecution,
24 that merely because it is said, one need to check the accuracy of that.
25 And it is not only what is said that needs to be questioned when it comes
1 from the Prosecution but what is not said. Unfortunately, silence is
2 often sacrificed in the pursuit of the truth. And when in alleging that
3 virtually the entire political, civil and military structure of Croatia
4 was involved in the joint criminal enterprise to ensure that the Serb
5 population was not allowed to come back to Croatia, never once in a
6 300-page brief, never once in six hours of argument, never once does the
7 Prosecution comment about the prosecutor Mr. Galovic who testified to
8 this Chamber, in February of 1996 -- that he had processed 1277 cases in
9 the wake of Operation Storm by February of 1996.
10 The question to be asked by the Chamber is why. Why would the
11 Prosecution fail to mention that? Is he, as termed in their brief at
12 paragraph 5, just simply one of the many JCE members who are too numerous
13 to mention? Or was there some reason that these inaccuracies and these
14 omissions are merely sacrifices on the altar of a conviction?
15 I turn my attention to the allegations concerning
16 General Gotovina as it pertains to the JCE, and I direct the Chamber to
17 the factors set forth by the Prosecution in paragraph 121 of its brief.
18 Factor 1 of paragraph 121 is that General Gotovina shared the
19 common criminal purpose of the JCE by allegedly planning, ordering and
20 implementing a widespread and systematic unlawful shelling attack against
21 the Serb civilian population with the specific purpose of driving that
22 population out. These comments were -- will be addressed in part to the
23 filed by the Prosecution and also to the comments presented by Mr. Russo
25 This use of artillery is the core of the Prosecution's Brioni JCE
1 theory which depends upon proof of widespread or systematic unlawful
2 shelling. While a centre-piece of the Prosecutor's JCE theory, there is
3 simply no evidence to support that theory. The evidence demonstrates
4 that the HV's use of artillery during Operation Storm was consistent with
5 widely accepted military doctrine, not only on the NATO level, not only
6 on the Dutch army level, not only on the American level, but throughout
7 militaries in the world. And this is precisely what the Gotovina Defence
8 told the Chamber during our opening statement, which is at page 573,
9 lines 6 through 24. Well, this is extensively covered in our brief at
10 pages 50 through 86, Your Honours, and I will not obviously go through
11 that, taking the admonition from the Chamber not to re-argue that which
12 is in our brief.
13 I must comment on some of the arguments that were brought before
14 this Chamber by Mr. Russo yesterday. My page references to the
15 transcript yesterday, Mr. President and Your Honours, are to the raw
16 copy, simply because there was no final copy available last night while
17 this preparation was underway, so my apologies in that regard.
18 At page 47 of yesterday's transcript, line 24 through 48 --
19 excuse me, line 24 through -- page 48, line 3, Mr. Russo argued:
20 "No amount of artillery jargon about the centre of gravity or
21 full-spectrum operational dominance or air/land battle or the manoeuvrist
22 approach or other any other military doctrine justifies the wild
23 discrepancies between the alleged targets of attack and the actual
24 evidence of what was shelled in Knin."
25 Now first and foremost, Mr. Russo at no point in the brief or
1 yesterday attempts to discuss any of those accepted military approaches
2 because they are just that, accepted military approaches that are counter
3 to the position taken by the Prosecution.
4 Next, Mr. Russo then showed the Chamber a slide overlaying
5 circles of where witnesses claimed to have seen shells or rockets land at
6 some point during Storm along with 11 military targets identified by
7 Mr. Rajcic.
8 Now if we could put this on Sanction for a moment. This is the
9 slide that was referred to yesterday by Mr. Russo. Now the Prosecution
10 asked the Chamber to infer from this slide that the only reasonable
11 interpretation of the evidence is that the entire city of Knin was made
12 the object of attack. This slide is not only not probative of that
13 point, it isn't probative of virtual nothing. In looking at this, and
14 consistent with what the Chamber has done in cases like Galovic, the
15 questions are manyfold. The first question is whether the recollection
16 of witnesses, in the midst of this combat, as to where shells allegedly
17 landed was accurate and, in fact, landed in these various areas circled
18 in the map of Knin.
19 The next question, of course, would be, if the circles of these
20 witnesses were correct, the Chamber would need to know the concentration
21 of fire of impacts within these circles for it to be probative of
22 anything. How many -- how many shells fell on these circles? One? 50?
23 100? Further, the Chamber would need to know, within these circles,
24 where the shells impacted relative to military targets.
25 These questions could have and should have been answered, as it
1 was in all the cases such as Galovic, by evidence of damage within these
2 circles; crater analysis, damage assessments, videos, photographs. All
3 of those pieces of evidence presented to other Trial Chambers in support
4 of an illegal shelling charge, none of which has been presented here.
5 Based on Prosecution's slide and its statement yesterday that no
6 less than a thousand artillery shells were fired into Knin over the
7 course of a 25-hour artillery campaign - and again that is page 48 of
8 yesterday's transcript, lines 13 to 14 - the Chamber would have expected
9 to been presented with photographs, videos and damage -- damage
10 assessments in the city of Knin, and that Knin had had been virtually
11 levelled, as a result of this artillery attack.
12 Further, the Chamber would have expected to have received dozens
13 of crater analyses, as well as a disproportionate number of civilian
14 casualties and deaths. The Chamber would not, would not have expected to
15 see evidence that the artillery use was concentrated against military
16 objectives, as outlined by my colleague Mr. Misetic, as we saw in the
17 provisional and final assessment of damage caused by artillery use by
18 senior UNMO Steinar Hjertnes, the report of UN CIVPOL, the reports of
19 senior international diplomats, US code cables, and a
20 US Secretary-General report to the Security Council. This evidence is
21 detailed at paragraphs 306 to 313 in our brief.
22 Additionally, Your Honours, and this was before it was
23 manipulated by Mr. Roberts, the Chamber would not have expected to see
24 General Forand tell the Canadian military, in June of 1996, that the HV's
25 use of artillery was excellent. And that's at P401, page 21. All of the
1 evidence is consistent with the conclusion that the use of artillery was
3 The fact that the Prosecution did not corroborate widespread --
4 any widespread destruction in Knin with photographs, videos, damage
5 assessments, crater analysis, and disproportionate civilian casualties is
6 not just because they waited three months into trial to file a motion
7 seeking artillery documents from Croatia. If this -- Prosecution's
8 interpretation was correct, this type of evidence would have been easily
9 obtainable by the UN and given to the OTP back in 1995. It was not. The
10 reason why it wasn't given to the OTP back in 1995 is because it didn't
11 exist and this after-the-fact interpretation by the Prosecution is simply
13 To the question, possible question, that the OTP did not have the
14 opportunity to investigate this in August of 1995, I address the Chamber
15 to P378, which is a -- an UNMO report. The OTP has been investigating
16 this case since 29 August 1995, when Mr. Todd Cleaver of the Office of
17 the Prosecutor went -- visited Knin to meet with various UN personnel.
18 Had this evidence existed of this widespread, unlawful attack against the
19 civilian population in Knin, it is simply implausible that that evidence
20 would not have been given to Mr. Cleaver at that time.
21 With respect to crater analysis and the lack thereof, the
22 Prosecution has offered only one evidence -- one crater analysis
23 throughout this entire case. As discussed in paragraph 318 of our brief,
24 this analysis was shown to have been from a Serbian rocket fired into
25 Knin on 5 August. I'm sure Your Honours recall that testimony coming
1 from Mr. Munkelien and Mr. Anttila, as well as their report which showed
2 that this rocket was found in three separate locations, but,
3 nevertheless, the rocket itself was a Serb rocket, an ARSK rocket.
4 Rather than accept this reasonable interpretation of the evidence, in the
5 Prosecution's zeal, the Prosecution now claims - and I kid you not that
6 this is in fact the position that they take - the Prosecution now claims
7 in paragraph 605 of its brief that HV forces seized MRLs at 8.55 from the
8 ARSK and then decided to fire on their own troops who entered Knin by
9 10.00 on the 5th of August.
10 This -- this is another example of just wide, vacuous speculation
11 on behalf of the Prosecution. There is no evidence to substantiate that
12 allegation at all.
13 Next, during Mr. Russo's presentation he sweepingly dismissed
14 accepted military doctrine as jargon and failed to apply the doctrine
15 into evidence. This is because in our brief at paragraphs 235 into 250,
16 we established that the use of artillery during Operation Storm was
17 consistent with accepted military doctrine. One example of how the
18 Prosecutor dismissal of the military doctrine leads to an erroneous
19 conclusion is the argument that is made by the Prosecution that
20 General Gotovina somehow deviated from the HV staff directive on
21 26th June of 1995, following the Brioni meeting on the 31st of July. Our
22 brief discusses this at paragraphs 189 to 235.
23 The position of the Prosecution demonstrates a serious
24 misapprehension of the chain of command at a strategic operational and
25 tactical level. The Prosecution's argument is based on the fact that
1 there are additional targets and names of towns in General Gotovina's
2 attack order. Well, of course, there would be. When the Main Staff
3 issues an order, they do so at a strategic level. When it goes down to
4 the operational level, at the General Gotovina level, an additional
5 targeting takes place. Those -- that targeting focuses on strategic
6 targets as outlined by the HV staff and then the operational targets as
7 developed by a Military District commander and his subordinates in the
9 As they move down, of course, there are additional targets as we
10 move from -- through these three levels. The targets discussed by
11 Mr. Rajcic during his testimony, be they in Knin or any other towns
12 discussed, were at the operational level. In addition, as I mentioned,
13 to the strategic and operational targets, the subordinate HV units, in
14 responding to matters during the course of the trial, had tactical
15 targets that they were able to engage as the circumstances developed
16 during battle. A simple proposition as the battle unfolds that targets
17 develop over time.
18 The Gotovina Defence previously presented this issue to the
19 Chamber through D1459 and D1460, where we took the Jagoda chart, for
20 instance, and overlay it on Benkovac to show the targeting of not only
21 the operational targets but the any number of tactical targets in and
22 around Benkovac. And in the interests of time, I just offer that -- the
23 Trial Chamber those cites to explain how the development will transpire
24 from the strategic to the operational to the tactical level.
25 None of the slides shown to you by Mr. Russo relating to the
1 shelling in Knin, Benkovac, Obrovac, and Gracac account for tactical
2 targets at all.
3 In addition to the misunderstanding of military doctrine, the
4 Prosecution misunderstands the significance of documents in the effort to
5 support their argument. For instance, Mr. Russo relied on P2338, which
6 is a coded infantry map, to support its argument, in paragraphs 594 to
7 605 of its brief, that MRLs were directed against civilian areas. They
8 overlooked the explanation by Mr. Rajcic who directly refuted this
9 position at page 16554, lines 11 through 18, where he explained -- I also
10 have additional cites on that. It is 16554, lines 8, to 16556, line 9.
11 He explained that P338 was a coded infantry map used for communications
12 and general reference points. He always said and testified that to know
13 the precise target you would need the X, Y, Z coordinates which the HV
14 had for every target fired on, as Rajcic confirmed in D1425,
15 paragraph 29, and his testimony at 17641, lines 17 through 22.
16 As you saw in the visual aid presented by Mr. Russo, and if we
17 could turn this ... yeah. S-15 and S-54 coordinate with operational
18 targets identified by Mr. Rajcic. They are also, as Mr. Rajcic would
19 explain, general reference points. Further, S-16, the one of direct
20 interest to the Prosecution, is oriented in line with the northern
21 barracks, another operational target identified by Mr. Rajcic and hit by
22 the HV.
23 In paragraph 601 of its brief, the Prosecution attempts to
24 corroborate their interpretation of P2338 by asserting that Mr. Hill
25 found a rocket at General Forand's residence, which he located being
1 inside S-16. This can be viewed by the next slide presented by Mr. Russo
2 and this an overlay of S-16 with the identification by Hill of Forand's
4 JUDGE ORIE: Mr. Kehoe.
5 MR. KEHOE: Yes.
6 JUDGE ORIE: Could I just seek -- would you please explain what
7 you exactly meant by "is oriented in line with." That is a phrase
8 which --
9 MR. KEHOE: I will explain that --
10 JUDGE ORIE: -- entirely clear to me.
11 MR. KEHOE: If we can go back to that --
12 JUDGE ORIE: Yes.
13 MR. KEHOE: If we see the S-16, S-16, and I will explain this
14 further, is on a line of fire going into the northern brakes.
15 JUDGE ORIE: Could it be turned in such a way --
16 MR. KEHOE: Yes.
17 JUDGE ORIE: -- that we have Knin on top, the word "Knin," to
18 rotate ...
19 MR. KEHOE: I think it's -- I think that was right.
20 JUDGE ORIE: Yes.
21 MR. KEHOE: If we see over in the lower left-hand corner there,
22 Judge, that's the northern barracks --
23 JUDGE ORIE: Yes.
24 MR. KEHOE: -- and it's oriented on fire there. To explain that
25 further, Mr. Boucher lived in the S-16 area. And Mr. Boucher testified
1 that there was, in fact, artillery. Nothing about MRLs. Artillery
2 coming in to that direction, into the area he lived, which he assumed was
3 artillery fire on these northern barracks.
4 JUDGE ORIE: And then stemming from where, because if I need a
5 line related to a certain point, it could be in all directions, isn't
6 it --
7 MR. KEHOE: It could be --
8 JUDGE ORIE: But --
9 MR. KEHOE: I just offer you, Mr. President, the testimony of the
10 witnesses that we have. Mr. Boucher saying that he lived in S-16, that
11 he had artillery fire, and that he assumed that fire going in towards the
12 Senjak barracks, mentioning nothing about multi-barrel rocket-launchers.
13 JUDGE ORIE: Thank you. Please proceed. Sorry to interrupt you.
14 MR. KEHOE: No problem, Mr. President.
15 If we can go back to the other chart, in an attempt to support
16 their position, they note that Mr. Hill allegedly found a rocket in this
17 area, in the area which he identified where General Forand lived.
18 Now the first thing we know about this is the rocket identified
19 by Mr. Hill, at 3755, lines 8 to 9 didn't, match the specifications of
20 any HV rocket in use during Operation Storm.
21 Second, what the Prosecution doesn't show you is that Mr. Hill
22 was incorrect about the location of General Forand's residence. Now,
23 Mr. Hill testified before General Forand. This map was never shown to
24 General Forand to accurately assess, did he, in fact, live at that
25 location. The subject, however, did come up with Mr. Dawes. On page 5
1 and 6 of his witness statement, P980, Mr. Dawes testified that in his
2 second trip into Knin he went in a residential neighbourhood by Forand's
3 residence. You will see from the next slide, which is P586, that --
4 excuse me, D856, my apologies, from D856, that the area identified by
5 Mr. Dawes as the location of General Forand's residence is different than
6 the one offered by Mr. Hill.
7 Further, as I noted, Prosecution witness Boucher did live in the
8 area of S-16, which can be seen in Exhibit P1179, and although
9 Mr. Boucher testified to artillery fire coming into that area, in the
10 direction towards the northern barracks, as I noted, he mentioned nothing
11 about the MRLs.
12 Finally, the Defence notes that P2338 contains dozens and dozens
13 of circles. Why? Because this is a map that is used for communications
14 and general reference points by infantry. If the Prosecution's position
15 is correct, we submit to you that these circles and artillery fire into
16 all of these circles would have been mentioned in any number of other
17 diaries at an operation and certainly at a tactical level. They were
19 Mr. President, I note it's 10.30. I'm about to go into another
20 aspect of this, but it is going to take a couple of minutes.
21 JUDGE ORIE: I leave it to you whether you want to take those
22 couple of minutes now or whether you would prefer to have a break first
23 and then to resume at five minutes to 11.00.
24 MR. KEHOE: I think it is probably best to go through at five
25 minutes to 11.00. I just looked at it and it's a little bit more than a
1 couple of minutes. I just -- I don't want to be misleading, but I don't
2 want overstate either.
3 JUDGE ORIE: We'll have a break, and we resume at five minutes to
4 11.00, sharp.
5 --- Recess taken at 10.31 a.m.
6 --- On resuming at 10.57 a.m.
7 JUDGE ORIE: Before we continue, I'm addressing the Prosecution,
8 both in the opening statement and yesterday, the Prosecution has drawn
9 our attention to the -- to a false report, at least claimed to be false,
10 about the use of phosphoric bombs in Grahovo. Now that seems to be a
11 factual matter which is strongly opposed by the Defence. The Chamber
12 would be assisted if the Prosecution could point to the evidence that it
13 was a false report, which, I take it, will be based on evidence that no
14 phosphoric shells were used on the attack on Grahovo. If that --
15 somewhere during these days, if you could clarify that. I may have
16 missed it in the briefs, but that specific issue.
17 MR. TIEGER: I'll address the issue, Your Honour.
18 JUDGE ORIE: Thank you.
19 Mr. Kehoe, are you ready it proceed?
20 MR. KEHOE: Yes, Mr. President.
21 Just continuing on and completing these allegations levied by the
22 Prosecution concerning the artillery attack. We know on an examination
23 of Knin there was virtually no damage to civilian structures, and we know
24 that in their allegations concerning Benkovac, Obrovac, and Gracac, they
25 have presented no evidence of civilian injuries or deaths.
1 Question this horrific attack allegedly put forth by the HV on
2 the 4th. Certainly it caused significant civilian deaths and injuries in
3 Knin. An examination of the evidence, once again, reflects that that is
4 not the case. They have evidence of some people seeing some individuals
5 in a hospital, without any determination as to how those people were
6 killed. But they give us in footnote 1959, the identification of several
7 people they maintain were killed during this attack, briefly referring,
8 through this group, and I refer to clarification schedule 185 through
9 190, number 205 and 225, when we look at that evidence, the number is
10 narrowed down still further. Number -- victim 225. Testified by
11 Ms. Grubor, who saw this person on the 5th coming into the hospital in
12 Knin. No idea where this person was killed -- was -- was hurt, no idea
13 if it was in military targets, no idea if it was in a combat area, none
14 whatsoever. Yet they offer that as part of their unlawful attack against
15 the civilian population charge.
16 How about the six individuals named in 185 through 190. These
17 are the individuals that were allegedly killed in -- outside the UN
18 barracks on the morning of the 5th of August. What they don't tell you
19 was that at least one of those people was dead already. Nevertheless, he
20 is included in this victim of illegal attack on the civilian population
21 by artillery and MRLs.
22 However, under the best of circumstances, these individuals were
23 killed in a mortar attack. Had nothing to do with long-range artillery,
24 had nothing to do with MRLs. Furthermore, the evidence reflects, as
25 detailed in our brief at paragraph 997, that the people involved didn't
1 know whether or not these people were killed by the ARSK or that mortar
2 was shot by the HV. And if we recall, the evidence in the record was
3 likewise, that prior to that the ARSK did, in fact, target the UN
4 Sector South headquarters with -- I'm sorry.
5 My apologies, Mr. President.
6 They did -- prior to that time, the ARSK did target the UN Sector
7 South headquarters with mortar fire. So, after all is said and done,
8 with the autopsies, investigations, and years of analysis by the Office
9 of the Prosecutor, they were able to arguably establish one civilian,
10 number 205, one civilian was possibly killed by artillery fire in
11 Operation Storm. Despite this, despite this dearth and paucity of
12 evidence, the Prosecution claims that the artillery incident is a
13 criminal act, an unlawful attack against the civilian population for
14 which General Gotovina is culpable. It is simply -- it's simply not
15 borne out by any of the facts in the record.
16 Frankly, the Prosecution employs this same tactic in many other
17 instances, in which they engage in speculation over possible illicit
18 inferences which could be drawn from their selection of evidence rather
19 than meeting their burden of proof, which is to demonstrate that their
20 conclusions are the only reasonable conclusions which could be drawn from
21 the totality of the evidence. Yet they ask for the guilt of General
22 Gotovina while offering this Chamber the evidence concerning the death of
23 one individual, and even that, they don't lay out the factual
24 circumstances of that death.
25 Another example of how this tactic is employed by the Prosecution
1 has to do with psy-ops. The Prosecution claims in paragraph 502 of their
2 brief that P478 is an order by General Gotovina to drop flyers. However,
3 the Prosecution's in-house expert, Mr. Theunens, makes clear that P478
4 was not - I emphasise - was not used during Operation Storm,
5 notwithstanding what the Prosecution says in their brief. We refer the
6 Chamber to Mr. Theunens's report, P113 -- excuse me, P1113, page 371,
7 footnote 457. Mr. Theunens agreed that General Gotovina's actual order
8 used during Storm, in D201, makes no mention of flyers.
9 As outlined in our brief, and we shan't go into it at this
10 juncture, at 320 -- paragraphs 320 to 329, the use of psy-ops was not the
11 cause of the civilian evacuation or the fleeing of the area. These
12 individuals left simply because of two reasons: They were encircled or
13 going to be encircled, as told by General Mrksic; and as Mr. Strbac told
14 us or verified in a tape, very strongly, that they left because they
15 didn't want to stay under Croatian rule and they needed to "preserve
16 their biological potential." And that's at D926.
17 Notwithstanding the lack of evidence concerning flyers, Mr. Russo
18 yesterday argued that, well, there is, in fact, proof that this flyer
19 that we -- in evidence was in fact dropped. Really? Let us look at
20 paragraphs 325 or 326 of the Gotovina Prosecution brief [sic]. The only
21 evidence presented of a flyer being dropped was a flyer that was dropped
22 in Bosnia. To try to counter this, Mr. Russo directs our attention to
23 the testimony of Marija Vecerina, and he did that yesterday at page 33,
24 line 1 to 5. What the Prosecution didn't tell you yesterday was that
25 Ms. Vecerina never identified the flyer that was presented to her, and I
1 point the Chamber to P62, paragraph 10; P653, paragraph 5. More
2 importantly, Ms. Vecerina never testified that she and her family left
3 the area because of the flyer. Instead, she testified that she left at
4 the instruction of her son who told her he heard that -- he had heard
5 over the radio that Knin had fallen. And that's why they left. And this
6 can be found at trial transcript page 6727, line 24 to 25; and 6725, at
7 line 19, through 6726, line 7.
8 The Prosecution at no point has proven that Serb civilians left
9 because of any unlawful use of either psy-ops or artillery.
10 In the interests of time, Mr. President, I would like to move to
11 the other factor alleged by the Prosecution in paragraph 21, which is the
12 alleged acceptance by General Gotovina of crimes as justified acts of
13 violence. The only thing I --
14 JUDGE ORIE: Mr. Kehoe, before you continue, could you clarify
15 your reference to the paragraphs 325 and 326 of the -- to the Gotovina's
16 Prosecution brief.
17 MR. KEHOE: It's the -- it's on a line -- it is our final brief,
18 paragraphs 325 and 326 in our brief. I apologise.
19 JUDGE ORIE: In your brief.
20 MR. KEHOE: In our brief. My apologies.
21 JUDGE ORIE: Please proceed.
22 MR. KEHOE: I would like to turn our attention to this allegation
23 of the -- our client's alleged acceptance of crime.
24 Nothing could be further from the truth. In the few instances
25 where this conversation came up, what did General Gotovina say? General
1 Gotovina discussed this matter with the ECMM, as reflected in our brief,
2 and the ECMM monitor who was present during this discussion understood
3 several matters, that the police, civilian police, had control of the
4 situation and that any person committing crimes should be charged. And
5 next, he took away from that remark that General Gotovina wanted anyone,
6 regardless of whether he was a soldier or a civilian, who was engaged in
7 criminal behaviour to be charged with a crime. Remarkably, remarkably
8 that is never discussed in the OTP's brief. However, as I refer back to
9 Mr. Galovic, that is exactly what Mr. Galovic did when he came in and
10 testified, over the course of the many months, where over 1200 charges
11 were filed in the wake of Operation Storm. As I mentioned at the outset,
12 an item that is conveniently, or whatever reason it happened to be, left
13 out of the Prosecution's brief. We need not go into that significantly
14 more than we have, and I refer the Chamber to paragraphs 593 to 599 of
15 our brief to talk about General Gotovina's actions in the face of crime.
16 But fundamentally, we challenge the statement of Mr. Hedaraly and the
17 premise of the Prosecution where Mr. Hedaraly said yesterday most of
18 these crimes were committed by soldiers or by civilians in concert with
20 Now, I understand that the -- that Your Honour has given us a
21 chart that deals with the restrictions of movement in page 148 of the
22 Prosecution's brief and we will discuss that. But prior to that, we need
23 to discuss the fundamental flaw in the entire analysis by the
24 Prosecution. And that is the attempt to designate all of these
25 perpetrators or most of these perpetrators as members of the HV. And how
1 do they do that? They do that by throwing the evidence of crimes that
2 have taken place in the Krajina, in Sector South, and we did not debate
3 at one point that crimes actually took place, and then putting it
4 together with units that were located in the area at some time. And,
5 a fortiori, because this took place, a crime took place and units may
6 have been in the area at some time, a fortiori, they were responsible for
7 that crime without ever identifying who the individual perpetrators were.
8 And based on that, they're asking the Chamber to convict the accused.
9 They are simply not anywhere near meeting their burden of proof.
10 This underlying logical flaw was exemplified by all during the testimony
11 of Prosecution witness William Hayden, when his conclusory statements and
12 opinions elicited by the Prosecution were explored by the Defence counsel
13 and the Chambers on cross. And I refer to Mr. Hayden's testimony at
14 page 10628, line 15, through 10645, line 7. And without going into this
15 in toto, Mr. President and Your Honours, I would like to summarise some
16 of that.
17 Mr. Hayden was drawing conclusions by systematic and organised
18 looting and burning by the HV which upon examination were without
19 foundation. Although he personally -- did not personally witness members
20 of the HV involved in such activities, he concluded that the HV committed
21 the crimes because he had not seen civilians in the area. This
22 conclusion was reached by Mr. Hayden despite the fact that Mr. -- one
23 Croatian official, Mr. Pasic, told Mr. Hayden that the crime was caused
24 by civilians taking revenge. Mr. Hayden testified that while he
25 considered the information provided by Mr. Pasic, he ruled it out -- he
1 ruled out civilians as perpetrators of the crimes in the area. He did so
2 despite having no information nor about -- nor investigation about how
3 many civilians remained in the area after the Serb evacuation. How many
4 civilians came back? This information was absolutely required before
5 drawing his conclusion. As the Presiding Judge directed to Mr. Hayden at
6 page 10634, lines 11 to 12, the Presiding Judge asked Mr. Hayden:
7 "I'm not asking you what you saw." And referring to the lack of
8 considering this information, Presiding Judge says:
9 "I'm asking you whether you agree with me that this is a serious
10 flaw in the reasoning."
11 Mr. Hayden rejected that. Suffice it to say that the Prosecution
12 has rejected this same matter. They've done the same exact thing. They
13 have failed to ask, like Mr. Hayden, the following questions, simple
14 questions, before contending that the only reasonable interpretation of
15 the evidence was that HV members under the effective control of
16 General Gotovina were the primary cause of these -- of crime.
17 Did any of these crimes occur before Operation Storm? Were any
18 civilians returned, had they returned to the area? When did they return
19 and how many? Were the civilian police in the area, and military police?
20 Did any of these categories of other people contribute to the problem?
21 To the extent that people in uniform were observed, were they actual
22 soldiers or did they have access to camouflage information? Were these
23 people acting individually or with one another, or acting were they in an
24 organised fashion, as a unit with a command and control structure?
25 This is a fatal flaw in the presentation that is made by the
1 Prosecution. If we turn to paragraph 479 of the Prosecution's brief,
2 they argue that the vast majority of these crimes were carried out by HV
3 soldiers, consistent with what Mr. Hedaraly said yesterday, that most of
4 these crimes. Well, what does that mean? The vast majority of them were
5 made. Most of these crimes were committed by the HV. The Prosecution
6 conceded yesterday for the first time, at page 57, lines 13 through 15,
7 that: "Civilians were involved in the commission of crimes."
8 Okay. How many instances were they involved with and when and
9 where? The Prosecution never tells us.
10 Turning back to paragraph 479 of the Prosecution's brief where
11 they note that a vast majority of these crimes were committed by the HV,
12 they make several assumptions. They note that there was no mass return
13 of Croat DPs until August 15th. Now let's look at the logic of that.
14 There was no mass return, how many civilians or IDPs came back?
15 How many civilians were in the area? Why would a mass return be required
16 for crimes to be committed to civilians? How many returnees or criminals
17 need to infiltrate the area before the Prosecution would consider the
18 possibility that they have committed a crime?
19 In pegging this return to August 15th, what they are trying to
20 say is that there are no civilians coming in prior to the 15th, ergo,
21 these are all HV soldiers and that General Gotovina must be responsible.
22 I hasten to correct their errors in that regard.
23 As shown by page 6 of Exhibit P352, page 2 -- excuse me, page 6
24 of P352, page 2 of D277, and page 1 of P805, and we detail this in our
25 brief at paragraphs 482 and 498, civilians were coming back to this
1 liberated area as early as the 6th of August. Internationals, on various
2 different levels, report people coming back as of that date. This is
3 essentially ignored by the Prosecution.
4 Next, in that same allegation, they note that the -- that the
5 military - and I'm talking about in their paragraph of 479 - that the
6 military had full control of the area and check-points were established
7 to prevent civilians from entering. We detail this in -- at
8 paragraphs 464 to 469. But their own evidence contradicts that
9 allegation. Look at the citations, as Mr. Tieger invited us to do, for
10 that statement. It is Mr. Moric and Mr. Cipci, and both say that the
11 restriction of movement in the area was done by civilians, the civilian
12 police, not by the military police.
13 Finally, the implicit reference in there that with check-points
14 this area is going to be safe-guarded and sealed off is simply
15 preposterous. As we see in paragraph 517 of the Gotovina brief,
16 criminals like Bilic were getting around check-points easily because they
17 knew the area. Mr. Galovic noted that it was impossible to have a
18 check-point to close off this area. General Cross, who had experience
19 with this in many different theatres said check-points in an area such as
20 this would be impossible to foreclose people from getting in. In fact,
21 there are even reports in this that we can detail where UNMOs, when faced
22 with check-points, knew enough about the area to get around it. There is
23 simply no basis in fact for this allegation that somehow check-points
24 foreclosed people from coming into the area.
25 Finally, of course, what the Prosecution tacitly agreed to was
1 that after the 15th, there was a combination of civilians in there and
2 that they were participating in this crime. But their answer to that is,
3 and they cite the Chamber to paragraph 195 of the Martic appeal, was it
4 really doesn't make a difference because they're part and parcel of --
5 they're working with the army and they're all guilty and Martic says so.
6 Simply not true. A completely inaccurate cite which Your Honours
7 directed us to.
8 First of all, if we look at that, in that paragraph 195, the
9 analysis was that the Trial Chamber found that these individuals that
10 were committing these crimes were paramilitaries working in conjunction
11 with the JNA and were -- could be directly tied to the accused,
12 Mr. Martic, as part of his JCE liability. Such facts were never
13 demonstrated here. The evidence that we have is that this criminal
14 activity was disorganised, took place at various times and places, with
15 people in uniforms operating in conjunction with civilians.
16 The more appropriate analysis, I submit to Your Honours, is in
17 paragraph -- or actually in paragraphs 191 to 193, and 197 to 200, where
18 the Martic Appeals Chamber discussing this matters. And at
19 paragraph 200, the Appeals Chamber notes as follows:
20 "The Appeals Chamber concludes that the Trial Chamber erred in
21 establishing a link between Martic and the perpetrators of these crimes.
22 In particular, the Appeals Chamber finds that the origin of the armed men
23 and their affiliation remains uncertain. Without any further elaboration
24 on the affiliation of these armed men, no reasonable trier of fact could
25 have held that the only reasonable conclusion in the circumstance was
1 that these crimes could be imputed to a member of the JCE."
2 Now, I add, Your Honours, that the Appeals Chamber drew this
3 conclusion, despite the fact that the armed men were wearing camouflage
4 and olive green uniforms at the time the crimes were made -- committed.
5 We implore the Chamber to use this analysis when looking at the
6 particular crimes that were levied by the Prosecution because they have
7 not developed or made any connection by people in camouflage uniform
8 that -- people committing crimes and have tied this back to
9 General Gotovina as part of his chain of command and as his effective
10 chain of command.
11 Just briefly going through this restrictions of movement matter
12 that was set forth on page 148 of the Prosecution's brief. Of course,
13 the inference from this is that because there is a restriction of
14 movement, that crimes were allowed to occur. This is -- this is mistaken
15 on many different levels. First, of course, logically one would have to
16 say that when restrictions of movement were in place, that crimes took
17 place; and when restriction of movements didn't take place, crimes
18 weren't taking place. Well, of course, there's no evidence on the record
19 to support that at all.
20 If we look at the various aspects of, for instance, Kistanje, is
21 it the Prosecution's position based on P148 that HV members were only
22 involved in criminal behaviour in Kistanje on the 11th of August and not
23 before that and not after that? Absent the Prosecution taking that
24 position, the juxtaposition of restriction of movement on the 11th of
25 August with allegations of crime is irrelevant.
1 The second flaw in the argument is that it was done to
2 actually -- any restriction of movement was done to cover up crimes and
3 we turn the Chamber to paragraphs 394 to 397 in our brief, where we talk
4 about that, but what is instructive is one about Benkovac. There are two
5 entries for Benkovac, on 7th of August and the 21st of August. If we
6 look at what the entries are, any restriction of movement was not an
7 attempt to cover up anything at all. What is cited for that restriction
8 of movement is P112, and that's in footnote 12312. There, the UNMOs
9 witness was not a cover-up or a tolerance for looting, but they report
10 that MPs searching civilian vehicles driven by what appeared to be HV
11 members and seizing items that appeared to be looted. This does not
12 support a claim of criminal activity put in place because of a
13 restriction of movement.
14 Furthermore, as demonstrated by P1211, although problems did
15 arise when HV members from the Benkovac area -- from the Benkovac area
16 stayed in town drinking after its liberation, the commander of OG Zadar,
17 by August 8th, issued an order forbidding HV members from entering
18 Benkovac and town was put under control of the MP to prevent entry by HV
19 and civilians.
20 Lastly, when we look at many of these -- these restrictions of
21 movement, restrictions of movement can be done for many different
22 reasons. A restriction of movement that is done in Bosnia certainly was
23 not done for anything other than restricting movement during a combat
24 situation. Restrictions of movement were done by civilian police and
25 even military police, people that are not under the chain of command of
1 General Gotovina. What the Prosecution has failed to establish through
2 this chart is that there was some correlation between a restriction of
3 movement and crime. They simply throw out an issue of restriction of
4 movement and maintain that some crime was taking place in the area and
5 that there is some correlation between the both. I think what we have
6 from the Martic Appeals Judgement is that that type of analysis does not
8 Now I would like to turn to the murder count as laid out by
9 Mr. Hedaraly.
10 JUDGE ORIE: Mr. Kehoe, you are aware that there 30 minutes
12 MR. KEHOE: I -- my timing, Judge, takes us --
13 MR. MISETIC: Had until till 12.03 is how we've broken it up.
14 MR. KEHOE: 12.33.
15 MR. MISETIC: 12.03.
16 JUDGE ORIE: I had we started at approximately 9.00 until 10.30,
17 and let's not count for the minutes, I mean, otherwise we will be short
18 of ten minutes for the three Defence teams and have to restart tomorrow.
19 So therefore we resumed at five minutes to 11.00, even if it has been
20 four minutes to 11.00, then you took another 30 minutes. So we are now
21 at approximately 120 minutes.
22 Please proceed.
23 MR. KEHOE: Yes, Mr. President. I will try to conclude quite
24 promptly and I think that what -- when look at the individual murder
25 counts we have detailed where we are in these murder counts and have gone
1 through it with some degree of specificity as much as possible. Suffice
2 it to say, the murder counts suffer from much of the same or all of the
3 same flaws as the damage to property counts, i.e., what the Prosecution
4 has done is they have attempted in many instances to put soldiers in the
5 area, and I hasten to add that that was only in 64 instances out of 292,
6 and then want to draw the conclusion that because soldiers were there
7 for -- identified around in several incidents without identifying who,
8 but that soldiers happened to be in the area, that, a fortiori, they
9 committed these murders, without any direct evidence of who these
10 soldiers were identified or even what unit was involved.
11 We have gone through this and, of course, we can't go through all
12 these -- these murder counts but what we have done is, in 20 of these
13 murders we said there was no direct evidence. The Prosecution has now
14 come back and said, well, in fact there was direct evidence and we have
15 gone through that. But even that, when we look at that, it is one again
16 emblematic of how Prosecution has developed these murder counts.
17 If we look at one of the incidents, 383, in the further
18 clarification schedule, it's on page 11 of the annex, this is a person
19 who was killed in and around the Donji Lapac area and what it says in the
20 OTP analysis was that this person was probably executed by an HV --
21 member of the HV or a policeman after being injured. Now interesting
22 analysis. Interesting analysis because they made it up.
23 Number one, they leave out the fact that this individual was
24 killed, as told by a civilian policeman, that the person was killed by a
25 civilian policeman during a hostilities on the 12th of August. On the
1 13th of August. You recall, Your Honour, there was a counter-attack
2 during that period of time. No point is it reflected in there that the
3 HV was involved in any aspect of this, yet the Prosecution includes that
4 in their analysis in an attempt, I suggest to you, to tie this back to
5 General Gotovina.
6 And number two, even their use -- I guess the use of the word
7 "probably" is -- is how their backout argument is here, is that they have
8 no evidence that this is a murder at all because they were told it
9 happened during hostilities. Nevertheless, they include it -- they
10 include one other -- I would try to get these quickly, Mr. President. An
11 individual --
12 JUDGE ORIE: Mr. Kehoe.
13 MR. KEHOE: Yes, I'm sorry.
14 In the interests of time, giving the appropriate time to
15 Mr. Akhavan, if Your Honour looks at the additional items that have been
16 set forth here, in all of the murders that they have laid out, they once
17 again don't establish that this murder actually took place, that it was
18 in fact a murder. And they have essentially made up in many instances
19 out of whole cloth the causes of these injuries and certainly have not
20 met their burden of proof. It is the job of the Prosecution to exclude
21 all other reasonable inferences consistent with the acquittal of the
22 accused. It is not their job, it is not their job, as raised by
23 Mr. Hedaraly yesterday, to raise possible inferences that simply because
24 there's no cause of death one cannot exclude murder. Their job is to
25 prove this -- these charges against these accused beyond a reasonable
1 doubt. These charges are fated. They have a fatal flaw and that flaw
2 is: Number one, the inability to prove in many instances that a murder
3 took place, but more importantly, number two, any attempt or any proof to
4 tie these matters back to the accused.
5 I will now cede the floor to Dr. Akhavan.
6 JUDGE ORIE: Thank you, Mr. Kehoe.
7 Mr. Misetic. Yes -- oh, you are just assisting him, yes.
8 MR. MISETIC: And while I'm doing that, Mr. President, I made an
9 incorrect reference to the evidence this morning. I referred to the
10 Mladic diary on the issue of phosphoric shells, and the proper e-court
11 citation is it D1465, page 26 in e-court.
12 JUDGE ORIE: Yes, that was exactly the issue I raised with the
13 Prosecution as to the source of phosphoric shells being used or not being
15 MR. KEHOE: And, Mr. President, my apologies to the Chamber and,
16 of course, to the interpreters, by escalating speed towards the end
17 there, but I do try to get through that, but I apologise.
18 JUDGE ORIE: Well, you certainly have improved over the last two
19 years, Mr. Kehoe.
20 Mr. Akhavan, please proceed. And I told you that I would be very
21 strict in time and that's what I'm going to be. Please proceed.
22 MR. AKHAVAN: Mr. President, if could I just advise the Chamber
23 that we were informed by the Court Usher that Mr. Misetic only took
24 25 minutes yesterday. So my understanding is that I would have an
25 additional five minutes which would bring us to just past 12.00. That is
1 how we very strictly kept the time.
2 JUDGE ORIE: Yes. What I earlier said is that if at the end of
3 the day we are seven minutes short, that that, of course, would not --
4 Mr. Kehoe, in his last -- certainly in his last ten lines was fully
5 repetitious, so therefore that is time is --
6 MR. AKHAVAN: I will keep strictly to the time, sir.
7 JUDGE ORIE: Please proceed.
8 MR. AKHAVAN: Mr. President, distinguished members of the
9 Trial Chamber, I'm pleased and honoured to appear once again before you
10 on behalf of General Gotovina. My colleagues have addressed the evidence
11 in this case. I shall now set forth our concluding submissions on
12 whether the Prosecution has proved its case beyond a reasonable doubt in
13 light of the applicable law and elements of crimes.
14 The defendant Ante Gotovina, a high-ranking military commander,
15 is charged with widespread and systematic violations of humanitarian law.
16 What is at the root of this law against which this Trial Chamber must
17 measure his conduct. In 1952, shortly after the adoption of the
18 Geneva Conventions in 1949, Sir Hersch Lauterpacht famously remarked that
19 if international law is at a vanishing point of law, the law of war is
20 perhaps even more conspicuously at the vanishing point of international
21 law. In the shadow of the Second World War, Sir Hirsch Lauterpacht was
22 referring to the basic challenge of imposing legal constraints on the
23 waging of war. The basic challenge of humanising an inherently violent
24 and inhumane activity. As Professor Kalshoven has explained,
25 humanitarian law does not by any means purport to turn war into a
1 fashionable and basically humane activity. Far more modestly, it aims to
2 restrain the parties to an armed conflict from wanton cruelty and
3 ruthlessness. Even so, war remains what it always was, a horrifying
4 phenomenon. What lies at the root of the laws of war is a careful
5 balance between humanitarian protection and military necessity. This
6 balance was as relevant at the time of the 1863 Lieber Code as it is
7 today. The former ICRC legal advisor, Louise Doswald-Beck, observed that
8 the states negotiating Protocol I of 1977 had this balance firmly in mind
9 so as to codify a law that was acceptable to their military staff. To
10 codify a law that was acceptable to their military staff. Therein lies
11 the viability of humanitarian law at the vanishing point of international
12 law. It is a code of conduct acceptable to military commanders around
13 the world because it does not ignore the horrifying realities of warfare.
14 It may be tempting to expand humanitarian law's scope of protection by
15 progressively diminishing the centuries' old balance with military
17 It may be satisfying to develop the most exacting standards that
18 can only be achieved by the best armies fighting in the best
19 circumstances with the best weapons. A legal utopia that sanitises the
20 horrifying realities of war. But a law that is unrealistic is also a law
21 that is irrelevant. A law that is unrealistic would be ignored by the
22 vast majority of military commanders around the word who are engaged in
23 warfare, military commanders without the superior training and weaponry
24 of the armed forces of the most advanced nations.
25 In order to arrive at a conclusion of innocence or guilt, the
1 Trial Chamber must determine whether General Gotovina acted reasonably,
2 given the realities of the war that Croatia confronted. Those realities
3 do not excuse crimes against civilians but humanitarian law does not
4 require General Gotovina to do the impossible. It does not presuppose
5 that he operated in ideal or hypothetical circumstances. It does not
6 consider whether in hindsight reality was different than how it appeared
7 to him at the time. It does not assume that faced with grave and
8 imminent peril he had unlimited time and resources to train a
9 professional army at the highest standards with the most sophisticated
10 weaponry. All that humanitarian law demands of General Gotovina is that
11 he acted reasonably, given the realities of the war that was waged on the
12 newly independent Croatian nation.
13 But that is not the standard underlying the Prosecution case.
14 Throughout this proceeding, the Prosecution has stretched, distorted
15 diluted or simply disregarded the law. It has done so to create a
16 standard so exacting, so unrealistic, that it would result in
17 General Gotovina's conviction no matter how reasonably he acted. It is a
18 contrived standard that attempts to compensate for the insufficiency of
19 the evidence that on any reasonable interpretation must result in an
21 Let us consider what the Prosecution's opening statement referred
22 to as the core of its case. Namely, the allegation that a JCE existed to
23 forcibly displace the Serbian civilian population through widespread and
24 systematic unlawful shelling. At the pre-trial stage, the Defence Rule
25 72 submissions argued, consistent ICTY jurisprudence, that whether
1 charged as war crimes or crimes against humanity, deportation and
2 forceable transfer only apply to territories under the actual control of
3 an opposing belligerent. We submitted that the allegations of unlawful
4 shelling, prior to the liberation of so-called Krajina, could only be
5 charged as unlawful attacks and not deportation.
6 In response, the Prosecution argued vigorously that such a charge
7 was not required because the definition of deportation under the laws of
8 war is inapplicable to crimes against humanity. The Prosecution then
9 abruptly changed its position and amended Count 1 of the indictment to
10 add what we still maintain is a new charge of persecutory unlawful
11 attacks against civilians and civilian objects.
12 The Prosecution now admits that to constitute an actus reus of
13 crimes against humanity, shelling can only be unlawful if it violates the
14 laws of war. But the Prosecution final brief completely ignores the
15 authorities at paragraph 860 of the Defence final brief on the exclusion
16 of preoccupation hostilities from the law of deportation. At
17 paragraph 482 of its brief, the Prosecution persists in the theory that
18 unlawful shelling prior to occupation satisfies the requirements of
20 Now, consistent with paragraph 11 of its pre-trial brief, the
21 Prosecution's final brief confirms at paragraph 486 that only "few
22 civilians" did not flee the shelling attack.
23 Thus, the Prosecution Brioni JCE theory rests entirely on proof
24 beyond a reasonable doubt of mass expulsion resulting from widespread or
25 systematic unlawful shelling prior to Croatia's liberation of the Krajina
2 Furthermore, it rests on a finding by this Trial Chamber that the
3 law on deportation includes preoccupation hostilities contrary to ICTY
4 jurisprudence and humanitarian law.
5 On both counts we submit the Prosecution's core JCE theory
6 manifestly fails.
7 Let us disregard for a moment the profound legal flaws in the
8 Prosecution theory and assume that preoccupation shelling can be a
9 modality of deportation. The evidence of unlawful shelling is still so
10 grossly inadequate that one has to ask how the Prosecution could pursue
11 such a charge in this case. The Prosecution's submissions yesterday
12 conjured images of Stalingrad in the Second World War, of cities and
13 towns reduced to rubble, and innocent civilians massacred by
14 indiscriminate shelling.
15 So this Trial Chamber has to ask, after 15 years of investigation
16 and in view of such bold allegations, where is the evidence of this
17 massive atrocity? Why is there no proof whatsoever that even a single
18 civilian died as a result of unlawful shelling? Where are the
19 photographs of Knin reduced to rubble? Why are the positive findings of
20 the UNMO and UN CIVPOL investigations simply ignored? The Prosecution
21 case is simply hopeless. There is no case to answer.
22 But instead of doing what is right and dropping these baseless
23 charges, the Prosecution has persisted in diluting humanitarian law in
24 attempting to blur the boundary between war crimes and the unfortunate
25 realities of war.
1 At paragraph 484 of its brief, the Prosecution states that
2 civilians who were the object of the attack, as well as observers from
3 international organisation, uniformly described the terrifying effect of
4 the attack. In oral argument yesterday, Mr. Russo repeatedly spoke of
5 the hours of panic and uncertainty that civilians suffered while cowering
6 in their basement. But to point out that war creates fear, panic and
7 uncertainty is to state the obvious. It is not a substitute for proof of
8 unlawful attacks. It is self-evident that neither civilians, nor
9 combatants, for that matter, particularly enjoy artillery attacks. All
10 that this line of reasoning demonstrates is a profound misunderstanding
11 of the exacting proof required for conduct of hostilities violations
12 under humanitarian law.
13 In arriving at its legal findings on the core allegations in this
14 case, the Trial Chamber must consider its far-reaching consequences on
15 armed forces around the world. Should NATO military commanders in
16 Afghanistan stop using artillery when Taliban insurgents hide in civilian
17 areas? Should they fear war crimes convictions as the Prosecution seeks
18 in this case? What about armed forces without weapons capable of the
19 same degree of precision as NATO forces?
20 We submit, respectfully, that if on these facts General Gotovina
21 can be found guilty of unlawful shelling and mass deportation, then any
22 military commander anywhere could be held guilty. A conviction on these
23 facts would make lawful warfare impossible. In effect, it would defeat
24 the very purpose of humanitarian law by equating the inherent horrors of
25 war with war crimes.
1 There is yet another fundamental flaw in the Brioni JCE theory.
2 The Prosecution brief admits at paragraph 482 that unless there is proof
3 of widespread unlawful shelling, the deportation counts fail insofar as
4 there must be proof of forcible displacement without grounds permitted in
5 international law. But the more fundamental problem is that there is no
6 proof even that Serb civilians fled in panic because of lawful artillery
7 attacks. Even if we assume that this lawful attack had terrifying
8 effects, a reasonable inference from the evidence is that the civilian
9 population left because of the RSK's own anti-Croat propaganda and
10 evacuation orders.
11 Even the Prosecution witness Ambassador Galbraith testified that
12 the side effect of the war was the departure but not the expulsion of the
13 Serbs. To the best of my knowledge, this is the first prosecution ever
14 in the history of international law where mass evacuation is equated with
15 mass expulsion. Absent widespread unlawful attacks, to argue that
16 Operation Storm was the cause of the exodus would be tantamount to saying
17 that Croatia had no right to win the war because it would result in RSK
18 evacuation orders. That would have to be the logic.
19 In this regard, it is remarkable that a significant element of
20 the Prosecution's JCE theory is denial of the immediate mass return of
21 the evacuated Serbs.
22 At paragraph 35 of its brief, the Prosecution states that, and I
24 "Led by Tudjman, the Croatian leadership adopted a no-mass-return
25 policy, refusing to process group applications for return."
1 Let us examine this argument in light of humanitarian law.
2 As set forth in paragraphs 569 to 571 of the Defence brief, it is
3 well established in international law that states have the right to expel
4 enemy aliens during armed conflict. In response to the Trial Chamber's
5 question, Mr. Tieger explained yesterday that the authorities we've cited
6 are inapplicable to the facts of this case. In particular, he argued
7 that the Eritrea-Ethiopia Claims Commission Award held that mass
8 expulsion of enemy aliens without individualised determinations are
10 I had the privilege of arguing that case before a tribunal
11 presided by Professor van Houtte, and I can assure the Tribunal that this
12 is a correct understanding of the award. But we are not invoking this
13 authority to justify a non-existent mass expulsion. We are only pointing
14 out that if it is within Croatia's sovereign rights to expel enemy
15 aliens, then it follows logically that Croatia is not under an obligation
16 to allow their immediate mass return during an armed conflict. This is
17 clearly a legitimate measure of national security, and it is difficult to
18 imagine any state in similar circumstances anywhere in the world that
19 would allow a policy of mass return for enemy aliens.
20 The Prosecution has not denied that the FRY was engaged in armed
21 conflict with Croatia, which it considered to be an illegitimate state.
22 It is not denied that FRY RSK citizens were not and did not consider
23 themselves to be citizens of Croatia. It may be argued that in relation
24 to Croatia's succession to the SFRY it had a customary law obligation to
25 allow habitual residents that would otherwise become stateless the right
1 to apply for Croatian citizenship. But obviously those that pledged
2 allegiance to the FRY RSK and rejected Croatian sovereignty became enemy
3 aliens. That was exactly the finding the Eritrea-Ethiopia Claims
4 Commission in relation to dual Eritrea-Ethiopian nationals habitually
5 resident in Ethiopia.
6 The present case is even more forceful because, unlike the case
7 of Ethiopia, the FRY RSK citizens were not dual nationals of Croatia.
8 There was no question whatsoever about their allegiance to a hostile
9 state that occupied a third of Croatia. Under such circumstances, it is
10 total obvious that Croatia was under no obligation to allow their
11 immediate mass return. It is astonishing that this fundamental rule of
12 humanitarian law was never considered by the Prosecution until its
13 closing argument in this case. It is yet another demonstration of the
14 profound flaws in its JCE theory. That is to say, transforming a
15 perfectly lawful no-mass-return policy into evidence of criminal
17 Another observation relates to the characterisation of armed
18 conflict issue. Mr. Tieger yesterday confirmed the Prosecution's view
19 that there is "extensive evidence" that the armed conflict is
20 international rather than internal. We fully concur with this view and
21 paragraphs 44 to 49 of our brief sets forth the facts that satisfy the
22 overall control test of the Tadic Appeals Judgement. The problem is that
23 the Prosecution has never pleaded an international armed conflict in the
24 indictment. Paragraph 56 of the indictment only states that at all
25 relevant times a state of armed conflict existed in the Krajina region of
1 the Republic of Croatia. The Prosecution can therefore only rely on a
2 non-international armed conflict to satisfy the nexus required for all
3 counts in the indictment. The authority for this proposition is the
4 Hadzihasanovic Appeals Chamber decision, pursuant to Rule 72(E), as to
5 validity of appeal, dated 21 February 2003.
6 The decision states in relevant part at paragraphs 11 to 12 that,
7 and I quote:
8 "If the Prosecution wishes to rely upon an international armed
9 conflict, it must plead as a material fact that the armed conflict was
10 international in character and state the basis upon which such an
11 assertion is made. The Prosecution should not be permitted to rely upon
12 the imprecision of its current pleading in order to put forward a case
13 that the armed conflict was international in character without a further
14 amendment to its indictment to make this expressly clear."
15 And I note that decision related only to Article 3 charges.
16 There were no Article 2 charges involved.
17 In this case, the Prosecution has expressly stipulated that the
18 conflict is international, but that is in direct contradiction with its
19 pleading in the indictment that the conflict is non-international. As
20 Hadzihasanovic indicates, it must satisfy the nexus requirement of all
21 charges based on its pleading that the conflict is non-international. It
22 is difficult to see, Mr. President, how the Prosecution can reconcile
23 this contradiction to sustain its charges.
24 With a fundamental core of the Brioni JCE theory in Counts 1 to 3
25 eliminated, a final consideration is whether the Prosecution can still
1 salvage its case with respect to remaining acts of plunder, wanton
2 destruction, murder, and cruel and inhumane acts in Count 4 to 9 of the
4 We submit that it cannot. Since there is no proof of a JCE to
5 commit mass expulsion, it is difficult to see how there could be a
6 reasonable inference that there was a JCE to commit other post-Storm
7 crimes, such as burning and looting, that the Prosecution claims were
8 foreseeable within the scope of JCE category 3, as we heard yesterday.
9 If there is no Brioni JCE category 1 or 2, with respect to mass
10 expulsion, as claimed by the Prosecution, then a derivative JCE
11 category 3 is simply irrelevant. Furthermore, the Prosecution does not
12 plead any JCE other than that at Brioni.
13 A further consideration that neither a persecutory policy nor the
14 widespread or systematic element of Article 5 charges can be inferred
15 from a mere crime wave. The Prosecution refers throughout its brief to a
16 post-Storm crime wave. As set forth in paragraph 819 of the Defence
17 brief, states negotiating the ICC Rome Statute did not consider a mere
18 crime wave to qualify as crimes against humanity and customary law.
19 Consistent with the Kupreskic Trial Judgement, the ICC elements of crime
20 stipulates that although a formal policy is not required, there must be
21 at least "a deliberate failure to take action which is consciously aimed
22 at encouraging such attack."
23 This is an onerous threshold that cannot be easily satisfied. It
24 is not sufficient to demonstrate that Croatia did not plan adequately for
25 the liberation of occupied territories or that it had limited resources,
1 or even that it had limited enthusiasm to prevent and punish crimes in
2 the face of other wartime priorities. The only reasonable inference must
3 be that there was a deliberate failure to act consciously aimed at
4 encouraging such crimes, and we submit that the Prosecution has failed to
5 prove that case beyond a reasonable doubt.
6 Mr. President, I just want to advise the Chamber that the Cermak
7 Defence team has kindly agreed to give me an additional five minutes, so
8 I will be wrapping up with that in mind.
9 JUDGE ORIE: Yes, which means that you have, then, five minutes
10 left. Or would that be seven. Let's not talk in terms of seconds. It
11 may be clear to the parties that we want to conclude the first round of
12 Defence submissions and their final argument today.
13 Please proceed.
14 MR. AKHAVAN: As set forth by my colleagues, the evidence
15 demonstrates that the UN Special Representative Akashi and other credible
16 authorities did not consider the burning and lootings to be part of a
17 systematic campaign. The evidence demonstrates further that Croatia did
18 not tolerate this crime wave which resulted from lawless in the wake of
19 the RSK'S sudden collapse. Officials were clearly embarrassed by this
20 conduct which tarnished Croatia's international reputation.
21 Notwithstanding the chaos of war, there were repeated orders and other
22 measures including 1300 prosecutions to prevent and punish such crimes.
23 In this light, the allegation that there was a deliberate policy of
24 failing to act consciously aimed at encouraging such crimes is certainly
25 not the only reasonable inference that can be drawn.
1 To accept the Prosecution argument that a JCE is the only
2 reasonable inference, the Trial Chamber would have to conclude that this
3 was the conspiracy of the century, an act of such diabolic genius that a
4 criminal policy permeating the entire Croatian state left no trace
5 whatsoever. Of course, irrespective of whether there was a joint
6 criminal enterprise or not, the only possible basis for
7 General Gotovina's contribution to post-Storm crimes, whether under
8 article 7(1) or 7(3), would be what Mr. Gustafson alleged to be his
9 deliberate persistent inaction. But once again, the Prosecution
10 interprets humanitarian law so unrealistically that nothing that
11 General Gotovina did could possibly be sufficient. The Prosecution's
12 basic allegation is that the many measures he took were merely a
13 cover-up. As Ms. Gustafson argued, Gotovina expected his orders to fail.
14 The absurdity of this case is demonstrated by paragraph 125 of the
15 Prosecution's brief, where it is argued that in issuing his attack order,
16 and I quote:
17 "Gotovina knew that his superficial instructions to prevent
18 looting and burning and generic references to the Geneva Conventions were
19 manifestly inadequate measure to prevent these crimes in the
21 Presumably, the Prosecution view is that humanitarian law
22 requires military commanders to issue exhaustive scholarly dissertations
23 on the Geneva Conventions. Only then could orders to protect civilians
24 qualify as necessary and reasonable measures. The argument is plainly
1 The Prosecution would further maintain that General Gotovina's
2 scathing condemnation of drinking and looting among soldiers that he
3 referred to as barbarians was all a cover-up. Presumably his anger at
4 his subordinates was meant to encourage undisciplined conduct among his
5 troops on the eve of his next war with Ratko Mladic in Bosnia. To argue
6 that this is only reasonable inference can that be drawn is simply
8 It is also astonishing that Ms. Gustafson would state that there
9 is no difference between the duties of operational commanders and other
10 commander in disregard of the authorities in paragraphs 647 to 649 of our
12 In the landmark High Command Trial, the US Military Tribunal
13 recognised even with respect to monstrous Nazi crimes, that an
14 operational commander such as General Wilhelm von Leeb had the right to
15 leave administrative duties in occupied territories to his rear -- to his
16 subordinate commanders and to assume that they would see to their proper
17 execution. Given the radically different context of Nazi crimes and
18 Operation Storm, General Gotovina should surely deserve no less than
19 General von Leeb. In this regard and in closing, I must express my
20 appreciation for Ms. Gustafson's analogy to what parents or authority
21 figures should do when their orders are disregarded. As a father of two
22 naughty children, Mr. President, I have issued repeated orders against
23 mischief. But now that I'm in The Hague pleading before this Chamber, I
24 rest assured that the implementation of those orders is the
25 responsibility of others back in Montreal. And our expectation should be
1 no different with respect to General Gotovina who had to assume that as
2 operational commander of 30.000 soldiers, responsible for two theatres of
3 war in Croatia and Bosnia, having done his utmost to instill discipline
4 and professionalism in his soldiers in exceedingly difficult wartime
5 circumstances, that he could issue orders and assume that others would
6 see to the proper execution.
7 The Prosecution has repeatedly asked this Trial Chamber to look
8 at the totality of the evidence in arriving at its conclusion. We
9 welcome this invitation because when the overall circumstances of the war
10 are considered, General Gotovina's efforts to establish a disciplined and
11 professional army while confronted with a ruthless enemy that had
12 ethnically cleansed and occupied a third of Croatia, an enemy that
13 regularly bombed its cities and towns with impunity, to consider that in
14 the face of such a grave and imminent peril, in the shadow of Srebrenica
15 and the threatened fall of Bihac to yet another genocide, if the totality
16 of these circumstances are considered, the argument that he failed to
17 take necessary and reasonable measures cannot possibly be the only
18 reasonable inference under any realistic view of humanitarian law.
19 JUDGE ORIE: Mr. Akhavan, you have to -- I said I would be
20 strict. Apparently you --
21 MR. AKHAVAN: I have been handed a note, sir, that the Markac
22 team has also given me an additional five minutes, and I have literally
23 less than that to conclude my submissions.
24 JUDGE ORIE: Yes. What you're actually doing, you just, although
25 at a higher speed, continue to read what you had prepared. If you have
1 limited time, you have to adapt your situation and perhaps take out some
2 of the rhetorics, whether -- for example, whether it is the conspiracy of
3 the decade or century is not really very convincing for the Chamber.
4 But it's up to you to use your time, but if you just continue to
5 do what you are doing, more or less ignoring, you have three minutes
7 Please proceed.
8 MR. AKHAVAN: General Gotovina has spent almost five years of his
9 life in prison on charges that are wholly without merit. He is a
10 courageous and honourable soldier to whom we owe a debt of gratitude.
11 Gratitude for risking his life to defeat those that inflicted the scourge
12 of ethnic cleansing on the peoples of the former Yugoslavia. Gratitude
13 for making it possible for this Tribunal to arrest those most responsible
14 for such unspeakable atrocities. Amidst the horrifying realities of the
15 war that he fought and by any reasonable measure of humanitarian law,
16 justice demands that he be declared innocent of the baseless accusations
17 against him.
18 In conclusion, Mr. President, honourable members of the Chamber,
19 we respectively submit that this Trial Chamber should enter a judgement
20 of acquittal for General Gotovina on all counts of the indictment.
21 I thank you for your patience and attention. That concludes my
23 JUDGE ORIE: Thank you, Mr. Akhavan.
24 Who is next in line?
25 It will be the Cermak Defence.
1 MR. KAY: Thank you, Your Honour.
2 JUDGE ORIE: Mr. Kay, I don't have to remind you that you
3 shouldn't speak too quickly but I still would expect you and the Markac
4 Defence to ...
5 MR. KAY: We just have some furniture arrangements to deal with,
6 Your Honour.
7 JUDGE ORIE: Yes.
8 Mr. Kay, it is my intention to have a break starting in
9 20 minutes from now. A break of, then, 20 minutes again until quarter to
10 1.00. If you would find a more appropriate moment, please feel free
11 within certain limits to choose that moment.
12 MR. KAY: I'm grateful to Your Honour.
13 Your Honour, this is the closing argument on behalf of
14 Ivan Cermak. At a stage in the case, it having started in March 2008
15 with the opening of the Prosecution, calling of witnesses, and then a
16 considerable period of time later, the closing arguments to be presented,
17 and we're able to look back through the corridor of that time and take an
18 assessment of what was said the day Mr. Tieger opened the case, what had
19 been written in an indictment before the opening of the case, what had
20 been written in a pre-trial brief by the Prosecution, the allegations
21 that they were to make, and we look back now to see whether they have
22 been proved or not, what has changed, whether there's been any substance
23 to support those allegations.
24 At the start of the trial, they were relying upon statements
25 taken in the English language, Croatian witnesses not having statements
1 in their own language, witnesses who had made statements subsequently
2 came into court and were accountable in a trial for what they had said,
3 and an examination of what they had said to investigators took place.
4 And during that period of time, there was some telling moments. I'm just
5 going to identify four, because they concern the Cermak case, and they
6 were telling moments that show that the case that was to be presented was
7 not the case that came about in fact. And they showed a Prosecution that
8 was on the run with its allegations. It had started with broad
9 allegations of General Cermak being in command of umpteen divisions of
10 the Split Military District. It had started with allegations of him
11 being in command and control of everything that moved in and around Knin
12 and Sector South.
13 Is that where they have come to, that same position when
14 Mr. Carrier addressed you yesterday? Did he have that convincing
15 confidence about a man who'd proved his case? Looking at the final
16 brief, when you read it, analyse the allegations that have been made,
17 look at the footnotes, not ours, but look at the Prosecution footnotes
18 and see what is cited in support. Are those citations correct, reflect
19 what has been written in the main document, or false? And I'll use that
20 word, because that's a word that came up in the Prosecution final brief
21 about evidence from the Cermak Defence. It's not a word I would
22 generally use in court but it was one we took exception to in the final
23 brief from the Prosecutor. And we heard it again yesterday. Let no one
24 doubt we will meet fire with fire.
25 But those telling moments, let's just have a look at those. When
1 General Lausic was to give evidence before this Court, the night before
2 he met the Prosecution investigator. He was furtively handed a brown
3 envelope. I don't know whether it was furtive or not but it sounded like
4 it from his description. And in that envelope were documents, and one of
5 those documents was the Exhibit D34, the organisational order of 1993,
6 concerning garrisons. This was a document that had not been mentioned by
7 Mr. Lausic in his considerable interviews as a suspect with the
8 Prosecutor, not been mentioned in his statement that had been prepared
9 from those interviews by the Prosecutor, and suddenly, someone in the
10 Prosecution team must have thought, We've dropped a clanger here. We
11 have made a big error in our assessment of what is relevant in the
12 evidence in this case. Because Lausic's failure to address the key
13 document concerning the authority and powers of the garrison commander
14 was missing, it wasn't referred to, and it was significant that the
15 Prosecution expert, Theunens, had only mentioned that document in one
16 page of his voluminous expert report. That was a telling moment of a
17 Prosecutor on the run, trying somehow to get an advantage from an
18 important witness in relation to an important exhibit.
19 Another telling moment, the second I will refer to, in relation
20 to another key witness. For this, the Gotovina team will take credit and
21 that's why I gave them the extra five minutes.
22 They wanted Mr. Theunens's draft of his reports. It was not
23 something that we were interested in. We were content to contest
24 Mr. Theunens on the report we had before us. But that was instructive,
25 because that draft report, two weeks before it was finalised, showed such
1 substantial and substantive changes concerning the case involving
2 Mr. Cermak that his whole position in this trial had to be re-written by
3 the Prosecution expert to support the constructed indictment against
4 Mr. Cermak.
5 We spent a few days finding out about the drafts. We spent a few
6 days analysing the drafts, but the product of it, we are grateful for,
7 because, in our view, it was a telling moment.
8 The next telling moment was when Mr. Dzolic came to give
9 evidence. He'd been the commander of the Knin Company of the military
10 police for one week in Knin. When you look at his statement, it's very
11 curiously written, as we've set out in our final brief, to establish some
12 kind of authority or that he was expected to obey orders from
13 General Cermak to try and make some kind of command connection.
14 You look at the paragraph concerned, number 34, and you can see
15 it's entirely unconvincing as the sort of document this Court has to rely
16 upon. But when he came to give evidence and had to be accountable for
17 what he had said, he resiled from what he had said to the Prosecution,
18 and he presented an entirely different picture of the evidence. A
19 telling moment.
20 The same telling moment came about with the witness P-086.
21 Exactly the same issues, and exactly the same matter arose. Outside the
22 comfort of the statements that had been taken years before and when made
23 accountable in court, those witnesses did not provide evidence upon which
24 the Prosecution had tried to establish the foundation of their case
25 against Mr. Cermak.
1 In this review that I'm doing in general terms of the case, I
2 refer the Court to the Defence evidence called by -- on behalf of
3 Mr. Cermak in this trial. When you look at the Prosecution final brief,
4 it is staggering that major parts of evidence are simply not dealt with
5 by argument. When witnesses were called by the Cermak Defence,
6 similarly, it was staggering that there was no challenge to the substance
7 of the evidence. And the reason why that happened was because the
8 evidence that we called was actually the truth of the matter. You were
9 receiving evidence from experts who knew what they were talking about,
10 from people who had been associated with the appointment of Mr. Cermak,
11 from people who were in Knin and present and saw him work, and from those
12 who had also explained this years before to the Prosecution, the good
13 intentions of Mr. Cermak and the nature of his work.
14 When one reviews the cross-examination of those witnesses and the
15 matters of substance, the challenges to them are very, very limited. And
16 the reason for that is this. The reason is that they were telling the
18 Take the expert witness General Feldi. He was a man who
19 intimately knew the service regulations that are an important document in
20 this trial; Exhibit P32. He was a man who knew about garrisons in the
21 Croatian Army. His expertise and why he was called as a witness were
22 apparent. More time was spent, it seemed - may not have been the case
23 but it seemed - dealing with matters of his credibility rather than the
24 substance of what he had to say. Defence expert witness, Pero Kovacevic,
25 a man who had written the regulations, responsible for drafting the laws
1 of the Croatian Army, knew what he was talking about, which is why he was
2 brought here as an expert witness. Time again spent on his credibility
3 but the substance of his expert's report not challenged.
4 General Deverell, the same. Mr. Albiston, the same. And what we
5 ask the Court to do, echoing the words of Mr. Tieger, is that although we
6 have called substantial Defence evidence, it is entitled to the same
7 status as any other evidence in this case, and we ask that this Court
8 consider the totality of the evidence, because it is through that
9 totality that the Court, in fact, will arrive at a truthful and just
11 A few words now generally about General Cermak's position. How
12 did he arrive in Knin. We know from the evidence that his presence was
13 not planned. I'll be addressing the Court about the latest Brioni theory
14 that the Prosecution advanced at a late stage of the final brief in this
16 He arrived almost as an accident, a consequent of events, that he
17 was given the call and asked to attend the president and given his task
18 to go to Knin. A task for which he had not been prepared, trained, nor
19 given power and authority of any sufficient degree or at all.
20 The Prosecution claim that, whilst in Knin, General Cermak, as
21 with other members of the JCE, had permitted a climate of impunity, that
22 he had allowed crimes to happen. And this begs the question then of what
23 did he do.
24 You have heard substantial evidence in this case that he not only
25 condemned crimes publicly, he condemned crimes privately. He condemned
1 crimes at meetings in the garrison. Is that the activity of someone who
2 is a member of a JCE? What would be the point of him permitting a
3 climate of impunity if he was against the fact that crimes were happening
4 and he was expressing that to others?
5 In sum, it doesn't add up. And what has happened here is that
6 three generals have been wanted to go on trial, and his name has come up.
7 He is a person who was in the wrong place at the wrong time and had done
8 no wrong.
9 Why was General Cermak sent there? His experience in business,
10 logistics, spoken of by many who gave evidence here, his ability to
11 organise, and obviously in the confused situation in the liberated town
12 of Knin at that time, a man of his qualities was needed to try and
13 normalise life. And that, Your Honours, was exactly what General Cermak
14 sought to do.
15 I'm now going to go directly to various allegations that the
16 Prosecution have made concerning General Cermak and his appointment. It
17 was alleged by Mr. Carrier and in the final brief that his role was
18 envisaged at the Brioni meeting; Exhibit P461, page 27. If you go to
19 that document to look at that allegation, firstly, the context of the
20 conversation concerns the imminent conflict and war. It is nothing to do
21 with the situation after the conflict has ended. There is no mention
22 within the context of that conversation that General Cermak was going to
23 have a position in Knin, and certainly not that he would be handling
24 complaints and neutralising interventions from UNCRO. The exact text is
25 this. We need a staff for relations with UNCRO, a permanent liaison who
1 would resolve things with them, for us to get instructions because
2 matters will evolve too rapidly. The president stated that this person
3 would have to be linked to his office. And at page 29, he linked that --
4 he named that person, Mr. Sarinic. This is a question to be dealt with,
5 what you just said and also in reference to UNCRO, and this means
6 Sarinic. What I'd like to know is whether it is safer to coordinate and
7 manage affairs from Brioni or Zagreb.
8 Absolutely nothing to do with this manufactured context put by
9 the Prosecution in their final brief concerning Mr. Cermak in Knin. But
10 it's interesting why they felt they needed to construct some kind of link
11 pre-liberation of Knin. And the reason is this. They simply didn't have
12 any evidence of him being part of a JCE. They have attempted to create a
13 notion in the case, to bolster a weak case, to try and make it stronger.
14 Moving from that issue concerning the allegation that
15 General Cermak had been considered or someone in his position to take
16 over a role handling complaints and neutralising interventions from UNCRO
17 to the next part of the attempt to make the appointment of General Cermak
18 to Knin as the garrison commander appear in some way sinister, and this
19 concerns the presidential appointment. The allegation is made that the
20 ordinary rules of the appointments procedure were circumvented to enable
21 Mr. Cermak to take up his position. Well, the procedure for appointments
22 was explained by the military expert, General Feldi at D1673, pages 43 to
23 44. And his appointment complies with the constitution of Croatia and
24 the laws on defence which requires that the president shall appoint and
25 dismiss generals. Our submission, the fact that the president appointed
1 General Cermak, in fact, indicates that his role was to be a different
2 role, not the role envisaged by the Prosecution, but the role of
3 normalising life in Knin and the role of helping the international
4 organisation in Knin. Nothing more, nothing less, nothing further, and
5 certainly not part of a planned criminal enterprise. The idea was to
6 appoint General Cermak to a job that was essentially outside the Croatian
7 armed forces, not within the usual structure of the Split Military
8 District, nor the Croatian armed forces command, and to be a job of a
9 short duration and a job which was necessary and needed after liberation.
10 Nowhere in any of the discussions, in any of the documents, in
11 any of the statements, is there a single reference to General Cermak's
12 work being solely for the return of Croats to the region. He never said
13 it, no one else said it. His job was of an entirely general nature and
14 normalisation meant normalisation for everybody, nothing more or nothing
15 less, and never was his position conceived as being a way of causing
16 others to leave the area or cause others to commit crimes against Serbs.
17 To try and add to the sinister nature of the appointment, and to
18 try and give some sort of argument that they can put forward to this
19 Court, Prosecution final brief, paragraph 289, the context of Cermak's
20 appointment is put this way. On the 4th of August, 1995, Susak briefed
21 Tudjman on Storm's progress, prompting - and that's the added word -
22 prompting Tudjman to request that Cermak be contacted. Well, the man who
23 was there, Mr. Radin, never said that, and neither was it ever put to him
24 that somehow Minister Susak was connected with Mr. Cermak's appointment.
25 It simply has been put into this case to try and add a bit of prejudice
1 and to make you think that there is a sinister reason behind the
2 appointment of General Cermak to Knin. His appointment as the garrison
3 commander had nothing to do with Minister Susak. Nothing to do with any
4 sinister tasks.
5 Again, a picture is sought to be constructed that Cermak was
6 somehow a trusted insider. And that's the phrase that -- that's used.
7 It's not one that was put to Mr. Radin, Mr. Vidosevic, Mr. Skegro, any
8 other witnesses, that he was a trusted insider. And that is being fed to
9 you this way, because they want to make you think that he is part of a
10 JCE. And that phrase "trusted insider" is something that arises from a
11 newspaper article involving the former General Cervenko who described
12 Cermak as the president's personal man of confidence. However, that
13 General Cervenko rejected that interview that he gave the very next day,
14 at D1306. And that's an important fact that you would have thought the
15 Prosecution would have sought to deal with in some substantive way. But
16 when you look at it, and as it was put to General Deverell, this is
17 gossip. This isn't substantive information. This is something of no
18 real consequence.
19 So, the Prosecution are attempting to also build a picture of
20 General Cermak as a trusted insider, having close personal ties to
21 President Tudjman and other members of the JCE.
22 Your Honour, I will go on to that topic now, as it is the time
23 for the break.
24 JUDGE ORIE: Thank you, Mr. Kay.
25 We will have a break, and we will resume at five minutes to 1.00,
2 --- Recess taken at 12.36 p.m.
3 --- On resuming at 12.58 p.m.
4 JUDGE ORIE: Mr. Kay, please proceed.
5 MR. KAY: Thank you, Your Honour.
6 Moving on to a trusted insider who had close personal ties, where
7 is the evidence of any meetings that Mr. Carrier referred to yesterday?
8 It's not good enough to come into this courtroom and say there were
9 public and private meetings. What -- of what? Where? The meetings that
10 we have seen evidence of in the Presidential transcripts do not reflect
11 adversely upon Mr. Cermak in any way. That is the evidence and they show
12 the nature of his tasks and work. They don't show anything more or
13 anything less. So coming into this courtroom to mention public and
14 private meetings at which things would have been discussed is simply not
15 good enough to build a criminal case, and the fact of the matter is they
16 simply didn't happen. We have the evidence of the meetings and what was
17 said, and that is where it is.
18 In relation to other alleged members of the JCE, where is the
19 foundation for the close personal ties between the other alleged members
20 and General Cermak? That has not been the subject of evidence of any
21 significant nature. What we do know is that General Cermak said in his
22 interview he knew Mr. Jarnjak personally. He referred to him as a
23 friend. He referred to General Markac as a friend. He said his
24 relations with President Tudjman were good in 1993; but when he left
25 government, at that stage, afterwards, there was little contact between
1 1993 and 1995. They saw each other two or three times.
2 In relation to the other alleged members of the JCE,
3 General Cervenko, Ademi, others, Mr. Radin, where is it? Where is this
4 foundation that somehow General Cermak came into an inner circle whereby
5 he was given sufficient trust that he would go on to help and support the
6 commission of crimes? It's simply not there. If it had been there, we
7 would have been able to have dealt with it.
8 In fact, the evidence shows that there was very good reason why
9 General Cermak was chosen to go to Knin, and the citations in the
10 footnotes of the Prosecution brief actually support those good reasons
11 that were cited by Mr. Vedris, that he was to encourage the organisation
12 of civilian life in the area and town of Knin. Tudjman tried to find a
13 person who had organisational skills, who could initiate rebuilding the
14 area. Mr. Radin simply did not say that the -- that the president did
15 not mention anybody else as a possible alternative. There's no evidence
16 as to what was in the president's thought. The opportunity to put him on
17 trial about these matters passed a long while ago. We simply don't know.
18 Mr. Skegro and Mr. Vidosevic, likewise, emphasised the skills of
19 Mr. Cermak which were appropriate to be employed down in Knin from that
20 time to try and restore an area that was to be the subject of an influx
21 of people who'd been excluded from it for over four years, as well as to
22 encourage the people who were there to stay and those who had
23 self-evacuated to come back. And I will be dealing with that in a little
24 bit more detail later on.
25 In the conversation that General Cermak had with the president in
1 1999, at Exhibit P1144, that conversation clearly indicates the extent of
2 General Cermak's work and never once did it include responsibility for
3 law and order. It did not include responsibility for the police, the
4 military, or anything else. That was never put to him by the president.
5 It is an informal conversation where neither would have suspected, one
6 would think, that such a tape would end up in a court of law ten years
7 later. But nowhere within that statement was there any suggestion that
8 General Cermak had, in some way, not fulfilled his task in normalisation,
9 his task in reconstruction; but nowhere is it stated that he was
10 responsible for the law enforcement in the area and responsible to have
11 prevented crimes that happened.
12 It's interesting that the Prosecution state that Cermak's
13 appointment and role was almost also immediately circulated among
14 Croatian officials, including senior members of the political leadership,
15 the military, and the police. There's simply no source cited that can
16 support that, and, indeed, what the evidence reveals is that Cermak was
17 introduced into the power structures of either the police or the power
18 structures of the military. He was sent there on his sole and lone
19 mission to carry out the tasks that he been given. Nothing more, nothing
20 less. The appointment had been discussed at the meeting when VONS
21 members were present, no introduction into the power structures. And in
22 fact, as Mr. Vedris told the Court, transcript page 23670, he heard the
23 announcement on the radio and he called Mr. Cermak, and this is
24 interesting because it shows the state of mind of Mr. Cermak at that
25 time. In an informal conversation, Mr. Cermak told him he'd accepted the
1 appointment and he'd accepted to help. This was role of helping, not a
2 role of anything else, or that a matter that would further advance this
4 The senior police officer in the area, Mr. Cipci, who saw
5 General Cermak arrive in Knin on the 6th, asked Mr. Jarnjak what
6 Mr. Cermak's function was. Again, that hardly constitutes the issue of
7 some presidential directive, in some form or other, circulated amongst
8 senior Croatian officials as to Mr. Cermak's responsibility and role.
9 I have touched on the importance of Mr. Cermak's role in the
10 normalisation of life.
11 What we have now in this case, because that has been absolutely
12 and thoroughly proved and established by the Defence in the course of
13 this trial, is that the Prosecution have attempted to change the nature
14 of that task from normalisation, simple, the only phrase that was ever
15 used, to add on, in their submissions, that it was to facilitate "the
16 return of Croats" to the area through infrastructure protection,
17 sanitation, mine clearance, et cetera.
18 Now, the issuing of colonisation as being Mr. Cermak's task and
19 job was, again, never put to people like Mr. Radin, Mr. Skegro,
20 Mr. Pasic, all the people who were there at the time. It was simply not
21 a concept because that would have been met with a straight rejection by
22 anyone, if it had been put by the Prosecution, because the weight of this
23 evidence is overwhelmingly in favour of the fact that it was
24 normalisation, full stop. He was nothing to do with Operation Return.
25 He was nothing to do with the MUP structure which was administering
1 Operation Return. This concept that has been brought into this case is,
2 again, a last-ditch attempt to try and make valid evidence invalid and
3 criminally liable, and in our submission to the Court, it simply doesn't
5 If one goes to the statements of two witnesses who had their
6 evidence in private session, protected witnesses, if we could go into
7 private session, please, Your Honour.
8 JUDGE ORIE: We move into private session.
9 [Private session]
11 Pages 29285-29286 redacted. Private session.
2 [Open session]
3 THE REGISTRAR: We're in open session, Your Honours.
4 JUDGE ORIE: Thank you, Madam Registrar.
5 MR. KAY: I'm not going to go through all the detail of
6 normalisation which is adequately set out in the Defence final brief, but
7 I'm going to turn to another subject that was introduced in relation to
8 General Cermak to say that his contact with the international community
9 was in order to appease or contain international observers; paragraph 289
10 of the Prosecution final brief, and as stated by Mr. Carrier. Well, if
11 we consider the point of contact and what happened when Mr. Cermak dealt
12 with the international organisations, we need to make it clear that he
13 was not the only person to whom international organisations went. Knin
14 police book, D57, logs reports crimes from UNCRO. Witness P-086
15 testified UNCIVPOL informing of crimes. Numerous international
16 organisation reports of crimes record that they will contact the local
17 policija. P11, P226, P232, P234, P235, P238, P247, P251, P260, P262.
18 But there were also reports of what happened from the
19 international organisations to both Mr. Cermak, as well as the local
20 police. There was not by any means any sort of exclusive relationship
21 that was constructed in order to prevent information going down the line
22 to the correct authorities with the responsibility to deal with crime.
23 UNCIVPOL even set up a cooperation system with the local police, as we
24 see at D53.
25 The Prosecution allege Mr. Cermak contained reports of crime.
1 Well, that is simply incorrect. Certainly in the case they presented
2 that was the attempt to construct an allegation against him, but as we
3 know from the statements of Mr. Rincic, Exhibit D1680, para 20;
4 Mr. Lukavic, D1687, paragraph 54; D1688, paragraph 37. Mr. Dondo, D1695,
5 paragraph 17, paragraph 19; D1696, paragraph 7 and 24. Pasic, D1706,
6 paragraphs 4 to 5. There was clear evidence that Mr. Cermak not only
7 condemned crimes and didn't approve of it and wanted it stopped when he
8 was present and spoke in briefings, but also that he passed on
9 information that he had received from the international organisations to
10 the military police and local police.
11 So, these key allegations of appeasement containing filtering
12 reports to prevent and soak up just within himself what he was being told
13 by international observers is simply not made out on the evidence. Not
14 only that. We have seen letters from Mr. Cermak passing on information
15 of a report of crimes from the International Red Cross, from Mr. Forand,
16 from whomsoever, sending them as letters to Mr. Romanic, to Mr. Cetina.
17 D1756 is even marked Cetina, urgent. That's not the conduct of a
18 man preventing the flow of information, doing nothing about it. That is
19 the conduct of a man fulfilling the proper tasks of a citizen, as he was
20 supposed to do and which he complied with.
21 Now, the allegation that he was preventing information from
22 getting to the Croatian forces or the Croatian authorities, be they the
23 Ministry of Interior or elsewhere, simply doesn't hang together when one
24 considers the voluminous number of orders to stop crime set out in the
25 Cermak Defence Annex A of the final brief, where information was
1 certainly going to the highest authorities that there was trouble in the
3 Constructing this case in a way to make it totally centred around
4 Mr. Cermak in Knin is a disservice to the evidence. Those orders that
5 were issued by higher authorities and at all levels were part of a
6 concerted attempt by the authorities to try and deal with a problem that
7 had developed after the liberation of the area, and it is simply wrong to
8 try and make it a picture that General Cermak was preventing information
9 from passing freely. It was simply not the case.
10 We know from evidence in the case that the Croatian Army liaison
11 officers who had pre-existing channels with UNCRO and international
12 organisations were also receiving information directly. That information
13 was being passed to their commander, Brigadier Plestina, in Zagreb, who
14 even went to visit Knin and also discussed with UNCRO directly in Zagreb
15 issues that had arisen from the international organisations.
16 General Cermak's willingness to help, and that's what he said to
17 Mr. Vedris when he told him he was going down to Knin, I'm going to help,
18 and his willingness to go and see the international community, has an
19 utterly reasonable explanation that we submit cannot be rejected in
20 favour of the Prosecution theory, that he was taking it on himself to
21 contain this information and not pass it on. It is utterly reasonable to
22 a man given a task such as this who goes willingly to help and do his
23 best. And when you look at the steps taken by him on the ground, all
24 those jobs he did in providing the food, setting up the bakeries, the
25 kitchens, his involvement with the infrastructure, all show a man willing
1 to help. But the important point to note in all of this is that he
2 wasn't sent down there to receive reports of crimes. That was never in
3 his brief. He was sent down there to help. I dare say, the last thing
4 in anyone's mind when he was appointed as the garrison commander and sent
5 down there was that he would be dealing with the reports of crimes being
6 passed to him by international organisations. They're simply no evidence
7 that this was envisaged in any way. And when General Gotovina was spoken
8 to on the 8th of August by General Forand, he said, Any problems you
9 have, General Cermak will help you. And that's the purpose of that role.
10 This Court is now going asked to structure a case against
11 Mr. Cermak of a nature where a part of what he did was not something
12 planned, thought of. It was just something he took upon himself. And in
13 doing that, he took that upon himself, because they came to him. As
14 General Deverell said, when you're of senior rank, it's the usual case in
15 international situations that people go to you with your problem. And
16 that's what was exactly happening to Mr. Cermak.
17 We know that this became far wider and went to the police and
18 went to others. But his handling of these reports and issues was not
19 something that had ever been structured or planned. There's simply no
20 evidence that how he acted was done in furtherance of any criminal plan.
21 Simply not there.
22 When his role was discussed by President Tudjman, again, it
23 wasn't a role that envisaged him receiving information about crimes.
24 That was never part of the brief, how he handled it, he tried his best,
25 and he passed it on to others who had to deal with it.
1 Let us move on now to the next allegation by the Prosecution
2 which attempts to invest Mr. Cermak powers and authority he simply didn't
3 have. And this has been given various titles. Yesterday, by
4 Mr. Carrier, enhanced military status. We've had enhanced authority. We
5 have had extraordinary enhanced authority. So allegation being made that
6 in some way he had far wider powers that he could have used in such a way
7 as to prevent what was happening on the ground in relation to crimes.
8 Well, we know what he did and how he passed it on, which was
9 consistent with his responsibility as a citizen. So if we -- we take
10 that position, which the Court, in my submission, must do. We mustn't
11 think ill of an accused because he is an accused. But you take that
12 position of the very fact he is passing on information and complaining
13 about crimes that have been committed, why, then, if he had this enhanced
14 authority, would he have not have issued it. It's simply a contradiction
15 in what he did do and what he tried to do, and this concept that,
16 somehow, he had extra power and could have done more. If he had, from
17 the evidence we've seen, he would have done more.
18 Now, this extraordinary enhanced authority is a complete
19 construction to try and invest in him a form of criminal liability. I'm
20 going to refer to one exhibit that sums up the lack of authority. We
21 could be here weeks going through it. It's D1016, and it's the request
22 for the authorisation for expenses for a prosciutto ham that was used at
23 a lunch for a delegation. Well, if you can't order a ham sandwich
24 without authority, it beggars belief that you start ordering the police,
25 military police, the armed force in the area if you don't even have that
1 authority to order a ham. It is simply a fiction to have put in this
2 concept into the case and not based it upon solid and reliable evidence.
3 Prosecution, in their discussion in the final brief on the
4 subject of the enhanced authority, make references to numerous passages
5 of evidence that, in fact, cite the opposite of what they intend, and a
6 classic is -- is that in paragraph 334, where they rely on the Defence
7 witness Skare Ozbolt, and they cite transcript 18101. She actually
8 described him as being a landless knight with competence unknown. "He
9 did not know what his area of responsibility was."
10 The witnesses they rely upon are those primarily from the
11 international community who, themselves, did not know what Mr. Cermak's
12 responsibility and authority was, and had no knowledge themselves of the
13 workings of the Croatian military or civil system.
14 All their witnesses said, We don't know what his authority was.
15 And as Mr. Berikoff said, His authority wasn't recognised on the ground.
16 General Forand, exactly the same. Mr. Roberts, exactly the same.
17 So, what do we have here in summary? We have a man put into an
18 ad hoc role to try and help establish, at a time of great pressure for
19 Croatia, the normalisation of life on the ground of a part of their
20 territory that had previously been occupied by rebel forces. His brief
21 was that of a civil nature in its discharge.
22 At one stage, the Prosecution are referring to him having
23 extraordinarily enhanced authority without any citation as to where that
24 authority comes from or any clear definition of what it was. And then,
25 on the other hand, we have them citing the powers of the garrison
1 commander as found in the Croatian armed forces regulations. So two
2 competing areas of authority: One, if you're in that position and you
3 have that power, you have that power; the other being something not
4 defined at all.
5 In their section of their final brief, starting at paragraph 300,
6 Prosecution deal with Mr. Cermak's authority as the garrison commander.
7 They state that he joined the military in August 1995 as an active
8 member. A key proposition for them is to try and establish that he was,
9 if they're relying on the garrison commander regulations, that he was an
10 active member. In fact, we know from the surrounding evidence that the
11 tasks he was given were rather different. And when one looks at the
12 orders and reports, all of which, at the time, refer to his brief of
13 normalisation, in our submission, it is quite clear that he had that role
14 and that task and was not formally carrying out the role of a garrison
15 commander, and that is what he spent his time doing. His tasks were of a
16 non-military nature.
17 However, much time has been spent on the authority of a garrison
18 commander, and the Prosecution, in their final brief analyse in great
19 detail, as we did, as it has been a feature of the case, as to what that
20 authority was.
21 What is staggering in the Prosecution final brief is the utter
22 failure to deal with the conclusions of the expert witnesses, Feldi,
23 Kovacevic, Deverell, and Albiston, on the authority and responsibilities
24 of a garrison commander. Instead, they rely on their own interpretation
25 of the service regulations, which General Feldi was responsible for, and
1 also the 1993 organisational order of work in the garrison.
2 In their final brief, they cite various passages from
3 General Deverell and others as to what the authority of a garrison
4 commander was. In all those citations, in fact, it is the opposite of
5 their proposition that the witness is advancing, and there are clear
6 examples of this. We have a very detailed file on it, and no doubt the
7 Court will be checking those footnotes itself, and I want to go to one in
8 particular which can serve as an example. It's paragraph 309, the end of
9 that paragraph, where the assertion is made that Deverell opined that the
10 expectation of having HV units with potentially separate lines of
11 subordination and command militated in favour of granting adequate
12 authority and powers to the garrison commander to allow him to discharge
13 his responsibility to impose regulations aimed at establishing and
14 maintaining a climate of good order and military discipline. Well, cited
15 is General Deverell's report, Exhibit D1784, pages 23 and 24. And he
16 says quite clearly:
17 "Thus, the garrison commander is responsible for imposing such
18 regulations as are required to achieve this," being the climate of good
19 order and military discipline cited in the text. But this part is not;
20 for example, establish vehicle speed limits, allocate routes within the
21 garrison, determine opening times for facilities, such as fuel and
22 ammunition depots, allot training facilities to units, and regulate the
23 use of accommodation. These facilities will be used by and largely exist
24 for units not organic to the garrison and, therefore, not subordinated to
25 the garrison commander.
1 At the transcript, page 24298 to 300:
2 "The garrison commander can only be responsible for the
3 discipline of those who are subordinated to him."
4 This whole section of the Prosecution final brief has confused
5 subordinates and the right to discipline subordinates with that of
6 general powers of authority.
7 Your Honour, that's 1.46, and I know that that is a break time.
8 JUDGE ORIE: It is, Mr. Kay.
9 MR. KAY: Thank you.
10 JUDGE ORIE: I hope that finally on the basis of these last few
11 days that I will not enter history as being minute-wise hours foolish,
12 but I suggest, and I'm also looking at the Markac Defence, that if we
13 resume at a quarter to 3.00, Mr. Kay, that you would take the first
14 65 minutes, then? Would that do.
15 MR. KAY: Yes, Your Honour, we have www.onlinestopwatch.com which
16 informed me it's 1 minute -- at 1 hour, 5 minutes, and 50 seconds. And
17 we can do that in the session after lunch, with Your Honours' leave.
18 JUDGE ORIE: Yes. And we would then take a break after
19 65 minutes. Would that do?
20 MR. KAY: Yes.
21 JUDGE ORIE: And then hand over to the Markac Defence. If we
22 then take a bit of a short break, five minutes less than usual, you would
23 have also 2 hours 25 minutes, approximately.
24 Mr. Kuzmanovic, would that do?
25 MR. KUZMANOVIC: It should, Your Honour. Thank you.
1 JUDGE ORIE: Yes. Then we will have a break, and we will resume
2 at a quarter to 3.00.
3 --- Luncheon recess taken at 1.50 p.m.
4 --- On resuming at 2.48 p.m.
5 JUDGE ORIE: Mr. Kay, are you ready to proceed?
6 Ms. Higgins.
7 MS. HIGGINS: Thank you, Your Honour.
8 Your Honours, I'm going to be dealing with specifically sections
9 of the Prosecution's final brief to illustrate perhaps how the brief
10 should be deconstructed, and particular attention paid to when assessing
11 the strength and the merit of the allegations that are made against
12 Ivan Cermak.
13 Each of the Prosecutors in turn, as they stood up to address you,
14 spoke about the importance of the totality of the evidence. The totality
15 of which, of course, includes the detailed footnoting of evidential
16 references contained throughout the Cermak Defence brief, none of which,
17 in passing, were referred to or dealt with by Mr. Carrier when he
18 addressed you yesterday. Neither, we submit, has the totality of the
19 evidence been footnoted or referenced for your benefits in the
20 Prosecution document, their final brief. We have taken great pains to go
21 through each, in turn, and to try and understand the basis or whether in
22 fact there was a basis for the submissions that have been made, and we
23 have noted distortion, irrelevance and serious mis-contextualisation of
24 the evidence which certainly does not reflect the totality of the
25 evidence presented before you.
1 To illustrate the point, I'd like to take the next 20 minutes
2 just to go through and deconstruct some of those paragraphs in which the
3 Prosecution make allegations about Ivan Cermak's alleged authority over
4 the MUP.
5 The central allegation, as you heard from Mr. Carrier yesterday,
6 is that Mr. Cermak could have used the MUP which he controlled in Knin to
7 prevent and punish crimes. Instead, you are told that he used the police
8 resources to further a joint criminal enterprise and that, in essence, he
9 was too busy colonising with Croats under the hooded cloak of
10 normalisation to be concerned about the crimes that were taking place.
11 If only the Prosecution's case were so simple.
12 The truth of the matter is that the totality of the evidence in
13 this case doesn't suit the Prosecution in any shape or form, and it
14 certainly doesn't meet the standard of proof required of beyond a
15 reasonable doubt. Neither does the concept of proper context. Only
16 yesterday Mr. Carrier referred you to Mr. Cermak diverting police
17 resources to advance the JCE and relied on the Defence expert Albiston to
18 support his contention, stating that this diversion of police resources
19 would have, in Mr. Albiston's words, have had the inevitable effect of
20 reducing police resources for more pressing tasks. Well, the citation he
21 gave, D1776, paragraph 3.74, has nothing to do with Ivan Cermak. It's to
22 do with consideration of an order that was given by Moric for very good
23 reason, which Your Honours will see when you go to that citation.
24 I'm going to invite Your Honours to look at the Prosecution brief
25 and I'd like to start just taking some paragraphs apart so that
1 Your Honours can see the concern we have and that we ask you to adopt
2 proper caution in your analysis.
3 Paragraph 388, it is alleged that Ivan Cermak in that paragraph,
4 in respect of him, senior MUP officials from the Kotar-Knin, Zadar-Knin
5 and Split-Dalmatia PUs, submitted themselves to Cermak's authority;
6 footnote 1099. Your Honours, without revealing the identity, that
7 footnote firstly refers to a protected witness in this case who merely
8 stated that his role was not clearly defined in that extract and that he
9 had to refer to Zadar. Nothing more, nothing less.
10 The second reference is to a sheet of corrections by this
11 witness; P88, page 1. Nothing there about submitting himself to Cermak's
13 Your Honours are referred to an organisational chart of the MUP
14 by the Prosecution. Nothing again, in terms of Ivan Cermak.
15 JUDGE ORIE: Ms. Higgins, paragraph 388 --
16 MS. HIGGINS: Sorry, 338. I'm sorry, Your Honour, 338.
17 And you will see the references I've cited.
18 Cetina is cited. Nothing in that citation either, and we invite
19 Your Honours to take this careful approach. JCE Jarnjak section of their
20 own brief cross-referenced to. Nothing there about Jarnjak submitting
21 himself as a senior official to Cermak's authority.
22 In direct contradiction to these mis-citations that you have been
23 given, Your Honours having read the briefs are aware of what we submit is
24 a plethora of evidence and examples and situations which demonstrate to
25 great effect that Cermak, Ivan Cermak, had no authority over the civilian
1 police. And the passages we ask to you consider begin from page 250.
2 Your Honours, the Prosecution continue and allege further that
3 his authority extended beyond the confines of the Knin ZN AOR. Although
4 they don't cite any testimony or witness statement evidence, they merely
5 provide you with two stand-alone maps. Not something that can get the
6 Prosecution home on that sort of allegation. They also say that the
7 witnesses that the Defence called only ever addressed the de jure
8 authority, or the lack thereof, by Mr. Cermak over the civilian police, a
9 central allegation they make against our witnesses.
10 Paragraph 338 therein, Your Honours. In stating that, they also
11 say that those witnesses failed to account for Tudjman's delegation of
12 extraordinary authority to Cermak and the evidence demonstrating actual
13 authority. Footnote 1102. We invite to you look directly. Nothing
14 there to support that contention. Simply a reference to Defence witness
15 Skegro stating that there are ministries under the president, and an
16 organigram, exhibited by General Feldi showing the position of the HV
17 command on the 4th of August. No delegation of extraordinary authority
18 by the president in respect of the MUP. Your Honours will recall that
19 that matter was addressed directly with Mr. Albiston, the police expert,
20 and we ask you, without repetition, to go to page 253 of the Cermak
22 It's simply not true that the Defence witnesses only addressed
23 the de jure aspect of authority or lack thereof. The witnesses cited by
24 the Prosecution include Albiston, P86, Cipci, Cetina, and Moric. We urge
25 the proper contextualisation of this evidence and the need for it to be
1 considered in its entirety.
2 Albiston, you will recall, and I'm going to give the citations,
3 dealt specifically many times with de facto command, none of it by
4 Ivan Cermak over the police. Transcript pages 23948 to 9, transcript
5 23837 to 8, transcript 24021, dealt with in re-examination directly,
6 transcript 24074. He even went so far as to explain his basis for the
7 conclusions he made. We ask you to look at our footnote of the Cermak
8 brief 1697, and the 2 to 4.000 documents he looked at in preparing his
9 report, as well as the seven orders that Ivan Cermak addressed to the
10 MUP. We ask you to look at transcript page 24080.
11 Crucially, he gave this Chamber evidence that he would have
12 expected there to have been a significant, in his words, volume of
13 orders, instructions, requirements for reports as to what exactly was
14 being done about it, if Ivan Cermak had genuine de facto commands. Our
15 footnote 1691. He was asked about Gambiroza's notebook, another piece of
16 evidence which he said did not support de facto authority.
17 P86, we ask to you go to page 276 of the Cermak brief, where he
18 gives what we say is important de facto evidence about the seven
19 so-called orders, which you will be examining in detail to see what they
20 actually amount to and whether or not they were followed.
21 Moric, a witness the Prosecution cites, clear evidence from him,
22 when he stated formally, legally or in fact, Cermak was not within the
23 subordination and organised police structure. Transcript 25624.
24 Not obliged, says Moric, to report to Ivan Cermak. Neither was
25 Cipci or Cetina. They confirm that Cermak could not command them. None
1 of this evidence, Your Honours, and there's much more which I don't have
2 time to refer to, none of this evidence is cited or dealt with head-on by
3 the Prosecution in their duty to consider totality of evidence.
4 Another example. Paragraph 339, there we're told that Cermak
5 gave specific examples of his authority over MUP officials, that he
6 contacted Cetina, Cipci and the commanders of local police stations to
7 resolve issues at check-points. The only references you're given are to
8 Ivan Cermak himself and to Mr. Hendriks, an international witness. Go to
9 what Ivan Cermak says. He refers, in that citation you're given, that he
10 would inform the police if there were problems at check-points. A
11 position totally consistent with a role of coordination, not command or
12 authority there over.
13 Hendriks cites an example of when a member of the monitoring team
14 phones through and Cermak is able to assist, according to him, with
15 movement through a check-point in Dabar. Hendriks couldn't remember the
16 incident, of course, and neither could he remember how it came to pass.
17 But without knowing what was said by Ivan Cermak, no conclusions can be
18 drawn as to whether it was an exercise of authority or a conversation
19 regarding the need to cooperate. What it does show is a good intent to
20 try and assist the internationals to do their work, which totally and
21 fundamentally contradicts the central concept of the JCE. The
22 counter-balance which this Chamber will also want to consider is the
23 plethora of evidence again in respect of those witnesses who cited, time
24 and time again, that Mr. Cermak had no authority at check-points or on
25 the ground. And we refer you to 20 different footnotes of evidence from
1 paragraphs 293 of the Cermak brief.
2 Let me take just one other paragraph. Paragraph 340,
3 Your Honours. There it is alleged by the Prosecution that the evidence
4 of P-086 and Cetina confirms Cermak's authority over the MUP officials
5 within the Knin-Kotar and Zadar-Knin PU. We submit firmly that what the
6 Prosecution has done here is to cherry-pick those particular lines that
7 suit their case and ignore all the rest.
8 Entering into private session, Your Honour, briefly, if I may to
9 address that point.
10 JUDGE ORIE: We move into private session.
11 [Private session]
11 Page 29303 redacted. Private session.
6 [Open session]
7 THE REGISTRAR: Your Honours, we're back in open session. Thank
9 JUDGE ORIE: Thank you, Mr. Registrar.
10 MS. HIGGINS: One other paragraph and then I'm going to hand the
11 floor back to Mr. Kay, but this is really to serve as an example of how
12 much caution should be exercised.
13 Paragraph 342, Your Honours, Prosecution argues that Mr. Cetina
14 confirmed Cermak's actual authority over the civilian police. When you
15 look again, as you are urged to do by the Prosecution, at the totality of
16 the evidence, they don't refer you to significant portions. And let me
17 simply highlight, because contrary to the Prosecution's contention, this
18 witness did not simply and merely deal with de jure authority. He also
19 dealt with de facto.
20 He said both formally and de facto, the military could not
21 command the police. Footnote 1553 of our brief. He said the civilian
22 police did not have an obligation to inform Cermak about the process of
23 crime. Footnote, our brief, 1602. No authorisation to manage police
24 procedure. Footnote 1642. Even if Cermak said or expressed a view that
25 something should be done, not expected that he would be informed about
1 the action taken, our brief footnote 1676.
2 Cermak could not issue orders to the police.
3 Your Honours, I could go on further with even just the evidence
4 of Mr. Cetina, when referred to in its totality. Time does not permit me
5 to do so. But let me leave with you this request. We request the
6 Trial Chamber and those assisting the Trial Chamber to deconstruct the
7 Prosecution's argument to reveal the truth of the matter about his
8 relationship with the police but also the entirety of the indictment that
9 has been put. That, I am afraid, is not a function which has been
10 carried out by the other party in this case, so we lay that
11 responsibility and request in your hands.
12 Your Honour, if I can hand the floor back to Mr. Kay, he will
13 continue with our submissions. Thank you.
14 JUDGE ORIE: Thank you, Ms. Higgins.
15 I was a bit surprised, Ms. Higgins -- Ms. Higgins.
16 MS. HIGGINS: Yes, Your Honour.
17 JUDGE ORIE: I was a bit surprised by the reference to those who
18 are assisting us. I think it is the exclusive responsibility of the
19 Trial Chamber to deconstruct if we would contend to do so, at least that
20 you can suggest to us, not to Chambers staff.
21 MS. HIGGINS: I'm grateful, Your Honour.
22 JUDGE ORIE: Mr. Kay.
23 MR. KAY: Thank you, Your Honour.
24 I'm going to turn now to deal with the subject of Grubori which
25 formed of part of Ms. Mahindaratne's submissions to the Court yesterday.
1 I'm going to take the essential propositions from the Prosecution final
2 brief as the best way of dealing with what, in itself, is a complicated
4 First of all, turning to paragraph 433 of the Prosecution final
5 brief, Mr. Cermak's knowledge of the incident in Grubori on the
6 25th of August. And it's asserted that Mr. Cermak told Markac he had
7 received "reports that people were killed and houses were burning prior
8 to 5.00 p.m. on the 25th of August."
9 In our submission, that is not the case. Unlike the local
10 police, Cermak did not receive reports of deaths on the 25th of
11 August and neither did the garrison. The garrison was reported to only
12 once, at about 4.00, and told that there were fires at village. Nothing
13 more, nothing less. And that matter was then received by Mr. Dondo, and
14 he later on informed Mr. Cermak of it.
17 (redacted) It was
18 not Mr. Cermak that informed him of such detail. There is no link
19 between the knowledge of the police on that day, the 25th of August, and
20 Mr. Cermak's knowledge on the 25th of August. They, in our submission,
21 received independent reports.
22 Mr. Cermak's interview is quoted at footnote 1564, in which he
24 "They were telling me there were killings, there were burnings in
1 And that reference there at Exhibit P2532, pages 66 to 67, is a
2 clear reference to the UNTV interview on the 26th of August, not the
3 25th of August. And, in fact, what happened when there was contact
4 between General Markac and General Cermak, information was sought from
5 Mr. Cermak on what had occurred, and so he supplied the information that
6 was passed to him through Dondo, and from him, he'd received it from the
7 internationals. If you see paragraph 215 of our final brief, that is
8 where that matter is set out.
9 In fact, some of the evidence within the footnote cited by the
10 Prosecution, footnote 1557 of paragraph 432, concerning Mr. Flynn's
11 testimony, he only informed Mr. Cermak, apparently, of burnings, not
12 deaths. And that is a reference there to his evidence.
13 Let's turn now to what was the central thrust of the allegations
14 yesterday that Cermak somehow prevented an investigation by the Knin
16 Markac specifically dispatched Mr. Sacic to find out what was
24 JUDGE ORIE: We move into private session.
25 MR. KAY: My apologies.
1 [Private session]
11 Page 29309 redacted. Private session.
7 [Open session]
8 THE REGISTRAR: Your Honours, we're back in open session. Thank
10 JUDGE ORIE: Thank you, Mr. Registrar.
11 MR. KAY: It was said at transcript T5305:
12 "I don't know who decided there should not be an on-site
13 investigation in Grubori village."
14 Turning now to events as they unfolded on the 27th of August. On
15 that day, it is clear that Mr. Cermak is still of the view that there was
16 to be an on-site investigation. If he had been party to any decision not
17 to have an on-site investigation and obstruct that, why, then is he of
18 the view that it will happen and was to happen and making inquiries about
19 it on that day? This simply does not fit with the allegation that he was
20 attempting to obstruct this investigation. Not only that, it's
21 completely contradictory to his stated position in the JCE. In our
22 submission, the role of Mr. Cermak on the visit to Grubori on that day,
23 where there is a meeting of people whilst waiting in the area of Plavno
24 for Mr. Sacic to arrive at the scene, quite clearly shows that it is
25 Mr. Sacic who was the responsible officer for what was to happen that
1 day, as it was a matter firmly within his area of responsibility.
2 Cermak's involvement arises completely collaterally. It arises
3 because he makes a statement, Well, you've told me this. Let us go and
4 investigate. Let us go and look for ourselves. And he said that in a
5 spirit of wanting to get to the bottom of it to the UNTV on the 26th of
7 So his involvement is not central in this story on that day. It
8 is purely for another reason that he is there. And when he is there, he
9 does go with the journalists, and it is the local MUP officials who are
10 able to dictate the terms as to what happens. He was told by them and
11 Sacic that the journalists could not film the on-site investigation, they
12 couldn't be present to view the bodies, and that there should be no
13 interference with their work. That is the simple story of how Cermak
14 became involved in the events at Grubori.
15 Let's turn now to the other significant piece of evidence as to
16 what happened, and that is his statement to the Croatian television about
17 the combat and the deaths resulting from such events.
18 JUDGE ORIE: Mr. Kay, may I seek one matter to be clarified.
19 You say that Sacic -- journalists could not film the on-site
20 investigation which more or less suggests that it is your position that
21 there was on-site investigation. Or you mean the --
22 MR. KAY: That was his state of mind and I am using his state of
23 mind --
24 JUDGE ORIE: Yes.
25 MR. KAY: -- on that matter. Nothing else.
1 JUDGE ORIE: Then it's clear to me, yes. Whatever it may have
3 MR. KAY: Whether it qualifies as an on-site investigation, in my
4 submission, is irrelevant to him --
5 JUDGE ORIE: Yes, okay, it is clear to me that you've given --
6 MR. KAY: Yes. His state of mind was the issue at that time.
7 And when he addresses the Croatian television, that wasn't
8 initially a planned moment for him. That, again, was something that was
9 intended that Mr. Sacic should do.
10 Now, it was the Trial Chamber -- can we go into private session,
12 JUDGE ORIE: We move into private session.
13 [Private session]
17 [Open session]
18 THE REGISTRAR: Your Honours, we're back in open session.
19 JUDGE ORIE: Thank you, Mr. Registrar.
20 MR. KAY: My apologies, not question 7, question 5 of the
21 Trial Chamber's questions concerning a table in the Prosecution final
22 brief concerning restrictions of movement.
23 I want to look at the concept of restriction of movement, first
24 of all, because it's rather misleading to say that General Cermak
25 informed the internationals of restrictions of movement, as if he was
1 imposing on them the restrictions. That is a very distinct proposition.
2 Informing them does not mean that you are necessarily imposing the
3 restrictions unless you've made that decision yourself. The example that
4 we would refer to on this is at paragraph 364 of the Prosecution
5 pre-trial -- final brief, where they assert Mr. Cermak restricted
6 movement. They cited the Witness Liborius, that there was restriction of
7 movement, and Cermak was contacted about it. And also, as a result of
8 that contact, he was able to move freely thereafter. That doesn't mean
9 that the blockage that happened on the ground as between Liborius and the
10 ECMM monitors, or in other instances, UNCRO or HRAT officials, was as a
11 result of any imposition by Mr. Cermak which had prevented them
12 progressing on their journey through parts of the area. What it means is
13 that, in fact, they phoned for him to help and sort out their difficulty.
14 Now, if he want going to sort out their difficulty and he wanted
15 to restrict movement so that crimes could be committed, it contradicts
16 the JCE theory of his involvement if he is then in the process of
17 helping, if he can, to secure them a free passage and prevent the local
18 officials from obstructing their journey.
19 The evidence in this case, we submit, and I will deal with that
20 particularly in answer to the Trial Chamber's questions, is that it was
21 the local-level commanders of the MUP, local HV commanders, or even CALOs
22 who were those who imposed the restrictions and blocked movement of
23 internationals on an ad hoc basis. But, in our submission, the evidence
24 in this case shows that, in fact, they were travelling quite freely and
25 regularly and without restriction. And it may well be the case here that
1 the issue on restrictions of movement, as it does in many cases where
2 international bodies face each other, became one of those sores and
3 points that was a continuing spark of controversy, exactly as General
4 Jack Deverell explained when he gave his evidence.
5 The de facto and de jure authority by which General Cermak could
6 restrict movement or could grant freedom of movement has not been
7 established by the evidence in this case. The evidence, in fact,
8 established that he was operating on behalf of decisions made by others
9 and was the person used to communicate that information. Right at the
10 start in Knin, it was a security issue as between the internationals and
11 the Croatian armed forces as to whether, almost directly after liberation
12 of the territory, they were free to move around.
13 Mr. Akashi himself, when he discussed this with Mr. Cermak,
14 acknowledged the difficulties of the security and that freedom of
15 movement that General Forand wanted would be a matter that could be
16 provided when the security of the area had been established. And that's
17 how matters arose right at the start. And the Cermak document that was
18 issued on that date saying they could move in Knin and Drnis and not to
19 go off the main roads, they were advised not to travel there, was
20 providing a piece of paper so that that could be used by them, if
21 necessary, to go through any blockages, check-points, or other areas and
22 give them help and assistance in their work. That was the simple purpose
23 of it. It was not General Cermak sitting in an office and deciding
24 himself where operations were, what was happening, and how he could
25 control matters. As you've been explained to, he simply was not (a), in
1 that position; (b), ever required to do that through the local military
2 structure. But he was passing on what were the valid security concerns
3 after an armed conflict which the local Croatian authorities and the
4 senior Croatian authorities recognised as being potentially dangerous.
5 One must remember they'd taken over land that was their own but
6 they did not know what lay around in the surrounding terrain. This is a
7 very difficult terrain. It is not one which is a network of motorways
8 and roads and places of installations, large towns and villages. It is a
9 wild piece of geography. Within that district, it was perfectly
10 conceivable to those who were in command of the armed forces that there
11 could be rebel groups or others waiting to attack back against their
12 forces. All Cermak did was pass on what was believed to have been the
13 best area for them to travel in for their own safety at the time.
14 Court is reminded the UN restricted their own movement by having
15 a system of grading of the security concerns for the region.
16 Let us now look at the matters that arise from the Question 5 of
17 the Trial Chamber.
18 The chart which the Prosecution has compiled and the footnotes
19 that have been cited in -- in support, in our submission, are unclear and
20 generalised descriptions of what took place and do not describe
21 perpetrators of crimes sufficiently or adequately, and it is necessary to
22 look very carefully at what has been cited to the Court. We will now
23 look at each item by item.
24 The first place, Benkovac town, on 7th to 8th August, where it is
25 recorded that there was looting by Croatian armed forces, the 134th and
1 the 72nd Military Police in Benkovac. Firstly, Benkovac is outside the
2 area of the Knin garrison, and confirmed by Prosecution witnesses as well
3 that General Cermak had no authority at all in Benkovac. And, in our
4 submission, his letter that he had issued on the 8th of August to
5 General Forand had no relevance in relation to the -- to -- to Benkovac
6 as a place.
7 In the footnote at 1312, it's cited an UNMO patrol was stopped at
8 the HV check-point by the military police and the UNMO was, for the
9 second time, banned from entering the town of Benkovac. In our
10 submission, this is not as a result of any order by General Cermak that
11 they were stopped at Benkovac. There is simply no evidence of any
12 operational order, nor could he have issued such an order to forces
13 there, saying, Do not permit internationals into Benkovac at this time
14 and on this day.
15 The events of looting are described by the UNMO personnel who go
16 to that place, and it is the taking of goods.
17 What is of importance at this time, on the 7th to 8th of August,
18 is to note that on the 7th of August, P301, P355, P111, P805, and P2146
19 show that the internationals were moving around this area without any
20 hindrance. For the 8th of August, also see P806 and P112.
21 It's clear from the reports of the commander of the 3rd Company
22 of the 72nd Military Police that the military police were in Benkovac and
23 were aware of events that were taking place.
24 There is a SIS report dated the 18th of August, D984, pages 2 and
25 3, which confirms that troops that were known about at that time were
1 dealing with -- were performing in an irresponsible way and committing
2 irresponsible crimes. But this was not sanctioned by the local
3 commanders. This was not something that they supported. This was not
4 something that they wanted to take place.
5 Turning now to the next footnote, the next place in the town,
6 Cetina, on the 12th of August, footnote 1314. It's recorded on the
7 Prosecution table that the village was burned down and looted, and we
8 should look at the footnote to see what is cited, P364, page 3. And the
9 report is that there was a Croatian police in Cetina and that while the
10 village was inspected, they were stopped by that police and this had been
11 a place that was observed by KenBat during the Grahovo offensive.
12 In that report, there's no mention of burning and looting.
13 Furthermore, on that day, other exhibits, P32, P808, P815, P117, D65,
14 show UNMO representatives moving around the area. It is probably the
15 Witness Dangerfield, P699, page 6, who is the source of the evidence
16 concerning Cetina, because in that statement he said, During other
17 patrols we were arrested and escorted out of the sector because we had
18 seen looting and burning in the village of Cetina. The extent of that
19 and what took place isn't specified, and whether the two are connected in
20 the sense of what was happening to him and the events taking place is not
21 made clear.
22 Benkovac, 21st of August, houses burned by the 134th, if we go to
23 the footnote 1315, P403, page 3, where it is stated:
24 "In the area of Benkovac, there are also some restrictions to
1 It is not specified who restricted movement. Other teams are
2 moving around without difficulty at that time and even able to report on
3 crimes that are taking place; D93, P125.
4 Other UNCRO representatives are able to move in the area. D623,
5 D93, P125, P45, P815.
6 At this time, on the 20th of August, D1002, Croatian forces were
7 employed in the area, mopping up the terrain, sorting out -- seeking
8 infiltrated enemy gangs and securing roads and communications. What we
9 submit is this, that what was happening was that at a local level, local
10 commanders of police and local commanders of troops were obstructing the
11 passage of internationals without there being any directive or order from
12 higher authority within the Croatian forces or government.
13 JUDGE ORIE: Mr. Kay, noting that you are two or three minutes
14 off from 65 minutes since we started, I wonder whether it doesn't sound
15 as if you are concluding.
16 MR. KAY: Yes. Your Honour, what we ask the Court to do is to
17 look at those footnotes carefully, that I have started the exercise on
18 concerning restriction of movement and I make the general point, which I
19 have made several times, about this not being any responsibility of
20 General Cermak, that people were stopped moving anywhere. In fact, he
21 was helping freedom of movement and helping their passage.
22 There was one other question that needed to be referred to.
23 JUDGE ORIE: Yes. If you have a list of further footnotes you'd
24 like the Chamber to look at, would it not be the simplest way to give a
25 copy of those last footnote numberings, just a list, give them to
1 Mr. Tieger so that he knows what footnotes you're exactly drawing our
2 attention to and then to -- we read them into the record tomorrow or --
3 one way or the other, but Mr. Tieger is in a position to respond to it
4 and that the Chamber has the full information it asked for.
5 MR. KAY: I'm grateful to Your Honour. That is a much more
6 convenient way for us to handle evidence such as this.
7 JUDGE ORIE: Yes. Now, the next item, apparently you also wanted
8 to draw our attention to certain footnotes, that was on what subject.
9 MR. KAY: Your question 7 --
10 JUDGE ORIE: Yes.
11 MR. KAY: -- about the Martic Appeals Judgement and the
12 particular paragraph, 195, about the Serb paramilitary forces, the JNA
13 and TOs, acting in concert with the JNA, and to civilians were looting in
14 concert with the soldiers.
15 This is a very different proposition than the evidence in this
16 case. The JNA had been warning that this would happen and it was a
17 planned and organised sequence of events. A concert is an organised
18 event, and those were acting in concert with the military, that the first
19 phase of the JNA passed through the village, telling people to leave, and
20 that there were paramilitaries to come. The JNA then moved out. The
21 paramilitaries came in thereafter as an organised plan. That is not the
22 evidence in this case and not the situation that we have been dealing
23 with in relation to the -- the concerted actions of civilians and HV
24 allegedly involved in crimes.
25 We have a far more confusing picture in this case of demobilised
1 people from the armed forces. We also have the confusing picture of
2 everyone being in uniform, camouflage fatigues as almost a national
3 dress, and, in our submission, the Martic Judgement was dealing with an
4 entirely different situation than what took place post-Operation Oluja.
5 And in fact, that method was employed throughout Bosnia, as they went
6 through the villages of Bosnia, as they went through other villages, the
7 alleged withdrawal of the JNA, followed by the paramilitaries, TOs, who
8 were JNA in disguise, committing crimes after they had gone. And it was
9 very much a feature of the Serbian tactics in relation to those states
10 that they were -- they were passing through in order to commit crimes.
11 JUDGE ORIE: Mr. Kay, it is approximately --
12 MR. KAY: Your Honour, I've got one minute --
13 JUDGE ORIE: One minute. Please proceed.
14 MR. KAY: And I will now finally address the Court.
15 We haven't been able to deal with everything. It's impossible.
16 The Prosecution final brief, we would have liked to have taken apart
17 every footnote. What we've decided to do is look at the thrust of their
18 allegations and how they are counted. In many respects that is the more
19 important thing to do because one can get bogged down in detail and not
20 see the whole picture. And in our submission here, Mr. Cermak is a
21 casualty, an accident, a person who was not planned to be in that area at
22 that time with the responsibilities reputed to him by the Prosecution.
23 My time is up.
24 JUDGE ORIE: Thank you, Mr. Kay.
25 We'll have a break. We'll have a break of 20 minutes. We'll
1 resume at quarter past 4.00. And I leave it to the Markac Defence, to
2 some extent, again within limits, when we will take the next break of
3 20 minutes.
4 MR. KUZMANOVIC: Thank you, Your Honour.
5 --- Recess taken at 3.59 p.m.
6 --- On resuming at 4.20 p.m.
7 JUDGE ORIE: Mr. Kuzmanovic, may I take it from you being on your
8 feet that you will address the Chamber first.
9 MR. KUZMANOVIC: That's correct, Your Honour. Thank you.
10 JUDGE ORIE: Please proceed.
11 MR. KUZMANOVIC: As a preliminary matter, Your Honours, Item 9 of
12 the Chamber's e-mail relating to oral argument, we will withdraw
13 paragraph 228 of our final brief. However, we'll not change any of the
14 numbering after that, because otherwise it is going to throw things off.
15 So just as a preliminary matter.
16 JUDGE ORIE: Yes. Since you started with practical matters,
17 would you allow me just -- if a list of footnotes is given to Mr. Tieger
18 for inspection, Mr. Kay, would you please also provide a copy to the
19 other Defence teams and then perhaps one to the Chamber as well so that
20 we can put it on the record tomorrow.
21 MR. KAY: Absolutely, Your Honour.
22 JUDGE ORIE: Yes, Mr. Kuzmanovic, 228 is stricken.
23 Please proceed.
24 MR. KUZMANOVIC: Thank you very much, Your Honour.
25 Before I begin, I would like to just let the Chamber know and all
1 of the parties that I will be talking about command responsibility
2 issues, certain issues relating to artillery and specific crimes relating
3 to General Markac, and Mr. Mikulicic will discuss the armed conflict
4 issue and JCE.
5 Before I begin my presentation, I wanted -- I think it would be
6 remiss of us all, having been here two and a half years, not to thank the
7 court staff, the Court Officer, specifically Mr. Nilsson, the technical
8 staff, all of the legal officers, the court reporter, the guards who
9 treated our clients and us with respect, and the last, but not least, the
10 interpreters for their work because without them we wouldn't be heard.
11 So preliminarily, it's a custom in my jurisdiction to do something like
12 that, and given the fact that we've been together for so long, I think
13 it's appropriate to do.
14 Your Honours, colleagues across the well, and learned Defence
15 counsel, the Office of the Prosecutor's final brief, in our view,
16 contains many misconceptions and a thorough lack of analysis of facts as
17 applied to law, especially regarding General Markac. The OTP's final
18 brief is rife with conclusory leaps and attributions without underlying
19 citation to the record. We've heard some of that from the last day and a
20 half. Overall, what stands out as a rhetorical pattern, recite general
21 facts, allege specific conclusions and legal consequences, and provide no
22 evidence. The same pattern generally has been followed in closing
23 argument. The result is essentially an invitation to this Chamber to
24 commit serious factual and legal error. I trust the Chamber will most
25 definitely not do that.
1 The OTP has failed to demonstrate a connection which the case law
2 requires with respect to General Markac specifically, a nexus between
3 crimes and a specific failure on the part of the commander. At first, I
4 thought the rhetorical pattern was only contained in the brief, but then
5 not after listening to yesterday's prevention. In particular, Mr. Russo,
6 at page 45 of yesterday's argument regarding artillery, cites Zdravko
7 Janic, special police commander, called by the Prosecution. Mr. Russo
8 said Janic "testified that there were no military targets inside the town
9 of Gracac proper."
10 But when one looks at his transcript reference, which is
11 transcript page 6393 to 94, this does not exist. In fact Gracac is never
12 mentioned. If we could show the document, please, with the transcript
13 reference. Janic talks about his own axis of attack which does not
14 include Gracac. The transcript reference -- and I will paraphrase
15 beginning at line 18:
16 "You said that there were predetermined targets. Were there any
17 predetermined targets in civilian populated areas in your line of attack?
18 "A. No, there weren't. Which stage are we talking about, the
19 first stage of Operation Storm or the entire operation?"
20 And then the question is:
21 "Operation Storm, the first stage on the 4th and 5th of August."
22 Mr. Janic continues to describe his line of attack which did not
23 include Gracac. He states:
24 "This was an uninhabited area. There weren't even villages in
25 that area in my line of attack.
1 Further on he is asked what were the predetermined targets, were
2 they soldiers or were there any other military installations or
3 equipment? What were the targets?
4 "The predetermined targets," he answers, "were the enemy
5 positions and the depth of their defence line, the artillery positions
6 their command post, their depots. The targets were the enemy
7 infrastructure that they used to defend their lines. Those were the
8 exclusive targets that we had. Whenever conducting an operation, well,
9 it wasn't possible to have any other targets. All the targets were
10 military targets. The purpose was to breakthrough the enemy defence line
11 and to attain the operation's objectives. It wasn't possible to have any
12 other objectives."
13 He was never asked about Gracac. The attribution is false.
14 Interestingly, in reviewing the 98 bis arguments, Mr. Russo made the same
15 argument and I actually made the same rebuttal.
16 Let's talk about what Mr. Russo ignored during his artillery
17 discussion regarding the special police. He ignored the testimony of
18 Josip Turkalj, a witness called by the Prosecution, the man in charge of
19 special police use of artillery after the initial defence lines were
20 breached. And the transcript references there are 13697, 13703 to 707.
21 In that testimony, Mr. Turkalj discusses that there were
22 15 rounds of artillery for Gracac. Fifteen. And the accusation that
23 Gracac was excessively shelled holds no water. Turkalj had specific
24 instructions to ensure that civilians would not be in harm's way as far
25 as artillery was concerned and that there were at least three military
1 targets in the town itself. Mr. Russo ignores P102, an UNMO report
2 which, incidentally, reports that 15 shells fell in the area of Gracac on
3 August 4th. And P111, at page 3 which describes main artillery impacts
4 on the main junction in Gracac. This was Croatian artillery pursuing the
5 retreating ARSK forces as described in P108, another UNMO report
6 discussing the ARSK withdrawal of tanks and artillery from Gracac.
7 Mr. Russo also ignored the Prosecution's artillery expert,
8 Lieutenant-Colonel Konings. He had no opinions critical of the special
9 police's use of artillery in Operation Storm. The Prosecution never even
10 asked him whether he should review the use of artillery in
11 Operation Storm by the special police, including targeting issues.
12 That's at transcript reference 14775 to 76.
13 Finally, Mr. Russo ignores page 21 of P401, which Mr. Kehoe
14 discussed, that said General Forand referring to the Croatian military's
15 use of artillery said it was excellent.
16 Mr. Tieger in his opening statement described the special police
17 as "from the virtual outset of entering towns and villages, the special
18 police began committing crimes."
19 We had discussed this many times in our presentation of our
20 Defence, in our 98 bis arguments and in our briefing. Guilt by
21 proximity. Let's look at what -- where perhaps Mr. Tieger may have
22 gotten this. Let's look at General Leslie's interview, D329, page 3.
23 First of all -- if we go up a little bit, I'm sorry. The first reference
24 is on page 2, again with respect to artillery.
25 The transcript of this interview describes General Leslie talking
1 about how he is a professional about artillery and he can comment it with
2 some degree of validity. He says at the second-last sentence:
3 "It killed a lot of civilians and we'll never know the exact
4 number but estimates -- estimates range from 10 to 25.000 dead." And we
5 all know that that's completely false. As a matter of fact it's a lie.
6 If we go to page 3, Mr. Leslie -- General Leslie again talks
7 about the special police at a time when he wasn't even in Sector South.
8 "There were a variety of organisations that then swept into the
9 former Serbian Krajina. They were special police teams, wearing their
10 very distinctive blue uniforms, who were engaging [sic] in hunting and
11 killing in the mountains of Serbian civilians. And I saw dozens and
12 dozens of farm houses and even villages burning, many, many days, in some
13 cases months, after the initial assault had taken place."
14 Again, blue uniforms identifying special police in the Serbian
15 Krajina. Not anywhere specifically. Again, complete fabrication.
16 Special police did not wear blue uniforms. Special police were not
17 engaged in hunting and killing in the mountains of Serb civilians.
18 I would now like to go through certain portions of the
19 Prosecution's brief. Paragraph 387, the first sentence here is
20 particularly galling and brazen. It says that:
21 "Markac ordered persecution ..."
22 And if we go further into that second line:
23 "... and, in relation to Grubori, murder."
24 There is no citation, factual basis for that comment. None.
25 Think about that for a minute. The Prosecution would have you believe
1 that General Markac ordered, in relation to Grubori, murder. There's no
2 exhibit reference. No transcript reference. Nothing. In that same
3 paragraph, the OTP again states as fact and without attribution:
4 "... Markac was aware that his forces were engaged in criminal
5 conduct against the Serbian community."
6 No cite, no exhibit number, no transcript reference.
7 Other references, paragraph 386 of the Prosecution's brief states
9 "... Markac reported false information regarding his
10 subordinates' crimes and suppressed their investigation ..."
11 This is an severely misleading characterisation of the evidence
12 the Court has heard. The omission of the legal standard here is
13 striking. Superiors are entitled, even expected, to rely on information
14 provided by subordinates. More importantly, the relevant period for
15 evaluating the reasonableness of reliance on reports is the time they
16 were provided and subsequently forwarded to higher units. The
17 Nuremburg Rendulic Rule clearly reflects a rejection of hindsight as a
18 standard of judgement. In the case of the United States v. List,
19 otherwise known as the Control Council 10 case out of Nuremburg, the
20 court there succinctly stated the standard, which is well-established
21 customary international law, by which a commander is to be judged without
22 hindsight. And I will quote from pages 1296 and 976 that decision.
23 "We are obliged to judge the situation as it appeared to the
24 defendant at the time. If the facts were such as would justify action by
25 the exercise of judgement after giving consideration to all the factors
1 and existing possibilities, even though the conclusion reached may have
2 been faulty, it cannot be said to be criminal."
3 General Markac forwarded all the reports later alleged to have
4 been false in the midst of high operational tempo and when information
5 was thin. The record includes at least two attempts by General Markac to
6 ensure that his superior at the time, the HV General Staff, had the most
7 current and accurate information that he had. Those being P575 and P576.
8 The two reports on the Plavno operation of August 25th, 1995. The
9 information in those reports was provided by him, to him, by
10 subordinates, subordinates who, based on all his past experience, he had
11 no reason to believe were wrong, were lying, or were misleading him.
12 When General Markac ordered the Lucko commander, Mr. Turkalj to
13 get written reports from the group leaders related to Grubori on
14 September 1st, 1995, a reasonable measure, those reports all stated that
15 armed conflict occurred in Grubori on the 25th. What was the use for him
16 to conduct any further administrative questioning? There is no evidence
17 that any single person told or reported to General Markac that what
18 happened in Grubori was, in fact, a crime.
19 Paragraph 389. Here we found highly suggestive by
20 characteristically unspecific references to criminal conduct. The most
21 troubling is the truly silly allegation of mens rea grounded on knowledge
22 that elderly persons were present in an area of operations. Exactly what
23 additional duty did the presence of elderly persons impose on Markac
24 under the OTP's theory?
25 If we look at paragraph 391:
1 "... Markac was aware of the substantial likelihood that murder
2 would be committed in the execution of his plans for the Grubori
4 If we scroll down to the footnote, please.
5 Two cases are cited for this. How is that evidence?
6 Paragraph 391 [sic]. Here the Prosecution alleges Markac
7 prompted the special police "to commit crimes ... in relation to
9 Further, the OTP alleges failure to take reasonable and necessary
10 measures to prevent and punish crimes by his forces, "thereby creating a
11 climate of impunity."
12 This passage is truly representative of the modus operandi of the
13 brief that I mentioned above.
14 This paragraph conflates issuing orders for lawful military
15 operations with specifically intending unlawful acts. It is missing
16 precisely what the law requires, a connection between crimes and a
17 specific failure on the part of the commander. The conclusions the OTP
18 has asked -- asked the Court to draw from these generalised facts are
19 entirely unsupported.
20 The OTP never tells us what necessary or reasonable measures
21 General Markac was supposed to take, just that he didn't take them. Why?
22 Because they know from their own witness, state prosecutor
23 Zeljko Zganjer, that the only entity that could deal with murder and
24 other serious crimes was the crime police, not the special police. And
25 this is transcript reference 11609 to 10.
1 Paragraph 395. The Prosecution says:
2 "Markac was physically present on the scene of ... crimes
3 committed by his subordinates ..."
4 This is another misleading suggestion attempting a connection
5 between a very general statement and criminal responsibility. This
6 passage suggests Markac's presence at the scene of crimes and is --
7 because of that he is therefore criminally liable. The invitation to
8 error is to conclude that Markac was physically present at crimes and
9 actually declined opportunities to personally interrupt acts of criminal
10 violence. It is no wonder that this paragraph includes no citation to
11 two and a half of evidence, and also no wonder the allegation isn't
12 elaborated in later sections of the brief.
13 The OTP spends a scant three paragraphs on superior
14 responsibility with not one citation to the appropriate case law.
15 Regarding its discussion of superior liability, the OTP's neglect of the
16 evidence before the Court is striking. Despite detailed evidence
17 presented to this Court concerning the actual extent of General Markac's
18 authority within the MUP, here the OTP relates his authority in the most
19 general terms. This characterisation, of course, better suits their
20 urging of his culpability based on his position rather than his conduct.
21 This is a gross departure from the legal standard of superior
23 Paragraph 398 is an allegation of actual notice of crimes without
24 citation to authority. Even so, it recites a simplified account of a
25 superior's duties with respect to knowledge of crimes. Here they would
1 have this Court understand that leaders have no option other than to
2 punish. This passage conveniently neglects widely recognised legal
3 effect of reporting of offensives to responsible authorities. Moreover,
4 not one single mention is made of the general MUP, media, and NGO
5 awareness of the events in question. Everyone from Minister of the
6 Interior Jarnjak, to Josko Moric, to Stjepan Buhin, to Ivan Cetina, to
7 Zeljko Sacic, to Witness 86 and Witness 84 are alleged to have been
8 advised about Grubori. Yet Markac is the one who is alleged to be
9 criminally responsible for it despite the fact that it is the crime
10 police that is responsible to conduct these criminal investigations.
11 Another crucially misleading characterisation of Markac's
12 authority is brought forth in paragraph 403, relating to "assisting
13 criminal police in investigation when necessary."
14 This argument is dealt with in Markac Defence brief
15 paragraphs 133 to 93 so I won't go into that in detail. But, as I've
16 stated earlier, criminal offences, their investigation, the power is
17 vested in the criminal police sector of MUP. D527, Article 17. The
18 Prosecutor knows all too well the significance of this suggestion
19 especially in light of the Boskoski decision, where the conduct alleged
20 there including murder, grave violence and destruction of homes and
21 property were criminal offences which the Trial Chamber there found could
22 not be adequately handled internally by the Ministry of Interior as an
23 internal disciplinary breach. And I cite that Trial Chamber decision at
25 I think it is important for the Chamber to hear specifics about
1 the Boskoski Trial Judgement and Appeals Judgement because it is so
2 similar to the case that we are dealing with, with respect to
3 General Markac. And I'm talking about specifically paragraphs 523 to 526
4 of the Trial Judgement.
5 The evidence presented indicate -- in the Boskoski case that he
6 was present as minister of interior for over an hour at a house while ten
7 ethnic Albanians were being held there, guarded by police. The prisoners
8 were lying face down with their heads covered. Boskoski was told they
9 were terrorists who had been captured. While he was in the village, he
10 heard firing and could see houses burning. Even the Chamber in that case
11 established from the evidence presented that the men being held had been
12 severely beaten prior to the time Boskoski had seen them, they could not
13 conclude from the evidence that Boskoski witnessed any mistreatment or
14 "should have deduced from the appearance of the ten that there had been
15 criminal mistreatment."
16 Similarly, even though homes were burning, the Chamber concluded
17 that no evidence presented proved that Boskoski should have known that
18 there was arson or wanton destruction of property.
19 The Chamber found that he had been supplied an explanation by the
20 police that there had been an armed conflict between the security forces
21 and terrorists, coupled with the testimony that he had been shown three
22 fire-arms and ammunition that he was told were seized from the terrorist,
23 and that was sufficient to support Boskoski's understanding of the
24 events. The Trial Chamber found no evidence that Boskoski saw or was
25 told of any person being shot or killed while visiting the village.
1 In affirming the acquittal, the Appeals Chamber stated that the
2 information in possession of the civilian police was determined in the
3 ordinary course to have led an investigative judge and the public
4 prosecutor to conduct a proper investigation as anticipated by the law in
5 such circumstances.
6 Though evidence presented did not confirm that Boskoski had
7 ordered the notification to the criminal police, the record indicated
8 that members of police officers in his ministry passed the relevant
9 information on to competent authorities.
10 That's at paragraph 267.
11 The similarity between the Boskoski case and the case facing
12 General Markac is striking. One important difference, General Markac was
13 never in Grubori. General Markac never saw with his own eyes what
14 happened there. General Markac learned everything about Grubori from
15 written reports from subordinates who were either on the scene or who had
16 participated in the action. Those written reports talked about armed
18 Let's look at reasonableness from General Markac's standpoint
19 with respect to Grubori. He gets notice the evening of August 25th that
20 something happened in an area where his forces were operating. He sends
21 his Chief of Staff, Zeljko Sacic, to find out more information the same
22 day he gets this information. The next day, his Chief of Staff sets out
23 for Knin and he finds out from his Chief of Staff that there are dead
24 bodies and that there are police on the scene. Now if a crime occurred,
25 it is the competence of the MUP criminal police to investigate it. If
1 the deaths were not, in fact, the result of lawful armed conflict, they
2 had a legal obligation to investigate. All the information in
3 General Markac's possession is relayed to him by others. Even Boskoski
4 who was on the scene seeing the burning is not held criminally
5 responsible for failing to act.
6 Unless General Markac has information which has been provided to
7 him which is to the contrary, there is no reason for him not to believe
8 what he has learned from his subordinates. In addition, Witness 86 and
9 Witness Buhin were waiting for instructions from Ivica Cetina, the head
10 of the Zadar crime police, under whose jurisdiction any criminal
11 investigation fell. This is Witness 86's testimony at transcript 5292.
12 Paragraph 433 of the Prosecution's brief. Even where the
13 Prosecutor admits that Markac initiated investigative efforts
14 commensurate with his resources and authority, the Prosecutor attributes
15 ungrounded, nefarious motives to these efforts.
16 Paragraph 434 alleges that Markac had a discussion with Cermak
17 about what Cermak would say to UNTV. This is undocumented,
18 unsubstantiated and non-existent. There is no factual reference that
19 General Markac talked to General Cermak about anything related to Grubori
20 other than the initial notice that something happened on August 25th.
21 This is an effort to construct an agreement between Cermak and Markac to
22 mislead regarding the events of the day.
23 Paragraph 439. Almost every act in this paragraph is alleged to
24 be independent of anything Markac did. This and subsequent
25 paragraphs paint the picture that Zeljko Sacic could sow fear and
1 independently wield enough influence to cow Witnesses 84, 86, an entire
2 office of police authorities, as well as Cermak, Moric, Jarnjak, Cetina,
3 and Buhin.
4 Paragraphs 442 and 443. At this point in the brief, as to
5 Markac's own actions, it appears the Prosecutor would have it both ways.
6 In this unbelievable account, he has failed to personally intervene and
7 criminally absented himself from supervising his subordinates while
8 simultaneously encouraging and soliciting them to commit crimes while
9 present at the scene of the events. It ignores the reality that the
10 undisputed evidence is from August 8th to the 21st, the special police
11 were not operating in Sector South beyond their remit. It is difficult
12 to conjure a vision of command more divorced from the realities and
13 challenges of combat leadership. This discussion completely ignores the
14 chain of command and merely equates Markac's position as being an impetus
15 for culpability.
16 In essence, the argument both in the brief and during oral
17 argument is that a unit of the special police went into Grubori on
18 August 25th, 1995, in a mop-up operation, and following Markac's orders,
19 murdered five civilians. Markac knew that the Lucko Unit was involved.
20 He knew that some or all of its members committed murder and he didn't
21 punish them for it. He then covered it up, and he knew it all by 5.00 in
22 the evening on August 25th, 1995. That's the Prosecution's view. That's
23 the simple view. In my opinion, that's the warped view, the completely
24 wrong view, which leads to conclusions justified by unsubstantiated
1 Justice is supposed to be blind but this method of argument by
2 the OTP is an attempt to circumvent justice. Markac is presumed to have
3 criminal culpability through conclusory statements without an analysis of
4 the evidence as applied to the law.
5 Prosecution has argued throughout this case that internal -- the
6 internal control department is a means of discipline for the special
7 police. It's wrong. I'll refer you to Janic's trial testimony, 6199 to
8 200, where he discusses that they did intelligence analysis and security
9 assessments, among other things.
10 General Markac can act on information that is only as good as the
11 source, and the source for his information are his subordinates. To be
12 blunt, if he is being lied to, misled, misinformed, deliberately or due
13 to the incompetence or human failings of others, he cannot be blamed for
14 passing on information that he gets from those who were either on the
15 ground, asked to look into the matter, or who didn't have the guts to
16 tell the truth back in 1995.
17 The multiple investigations undertaken by the Croatian state
18 attorney's office in Grubori, one in 2001 by Mr. Zeljko Zganjer and the
19 second one which is still ongoing by Mladen Bajic, right at the Markac
20 Defence was in the middle of its case in-chief, have done nothing to
21 clarify what happened there. But significantly have not produced any
22 evidence that, at the time of the events, General Markac knew that
23 members of the special police committed murder of civilians on August 25,
24 1995. Zganjer said that he found no evidence, in 2001, that
25 General Markac had gone anything to cover up the events in Grubori, nor
1 that he either influenced anyone else during the relevant time-period.
2 If he had, he would have been obligated to pursue charges. That's what
3 he said himself at transcript reference 11609 to 11.
4 The Prosecution talks a lot about P505, the alleged Markac reply
5 to the Elisabeth Rehn inquiry into Grubori. The Prosecutor states in its
6 brief that Zganjer found P505 to be "authentic."
7 But that's not the whole story. The OTP has not told you what it
8 did not cite in footnote 1689 that was discussed in transcript references
9 11617 to 11619. That being Zganjer's testimony that he did not know P505
10 never came to Minister Jarnjak or left the Ministry of Interior to go to
11 Ms. Rehn until it was raised in cross-examination by my colleague,
12 Mr. Mikulicic.
13 "Had I been aware of the information at the time, I would have
14 called into question what I thought."
15 He was presented with D909 and D910, a memo which had requested
16 the registry log-book to determine whether or not the letter was actually
17 drafted or sent.
18 P505 uses the -- used by the OTP as "evidence" of a cover-up is
19 weak. It is unsigned, has no stamp, has no number. But what better
20 person to ask if P505 was a response to her inquiries than Ms. Rehn
21 herself. The Office of the Prosecutor brought her here to testify but
22 failed to adduce any evidence that she ever received it.
23 I want to address the climate of impunity argument. The Office
24 of the Prosecutor discusses that General Markac's alleged knowledge of
25 crimes committed in Grubori on August 25th, prior to the Lucko Unit going
1 to Ramljane on August 26th, was evidence of "impunity and failure to
2 punish." This is a false argument. It is a straw man, and I will tell
3 you why. It simply wasn't possible. The August 26th freedom train
4 security operation in the vicinity of Ramljane was set up prior to the
5 Plavno operation via orders of August 23rd, which are D563 and D739.
6 The Lucko Unit alone was set up to operate to provide security
7 for the Freedom train. It was to handle, as we've heard, the most
8 sensitive part of the rail line. Now, P190 is a map. I'm not going to
9 pull it up but Ramljane is past Knin on the way to Split. Grubori is
10 40 to 45 minutes north of Knin. So we can keep in mind on the map where
11 those locations are. Knin in between Grubori to the north, Ramljane to
12 the south.
13 Now, the knowledge, so-called, that has been imputed to -- by the
14 OTP to General Markac that Lucko, itself, was a unit that was through
15 Grubori on the 25th and had committed crimes there, assumes that Lucko
16 was the only special police unit to take part in mop-up operations on the
17 25th in the Plavno valley. Well, there were almost 600 members of the
18 special police participating in this operation. Not one witness has
19 testified, not one, that it was known to General Markac, his
20 subordinates, the fundamental police of Knin, or any of the
21 internationals, on August 25th, on or before the Freedom train operation
22 on August 26th, that Lucko specifically was the unit that went through
23 Grubori on the 25th. Lucko was one of six units of 580 special police
24 members involved on August 25th in Plavno where Grubori was located.
25 These units were the Sisak-Moslavina, Zagreb, Brod-Posavina,
1 Split-Dalmatia, Lucko, and Osijek Baranja. When Markac was told late on
2 25th that something happened in Grubori, what evidence exists that,
3 first, he knew where Grubori was, or, second, he knew that it was the
4 Lucko Unit? None. No one identified the unit, nor is there any evidence
5 that General Markac knew which unit went through Grubori on the evening
6 of August 25th. As far as Markac knew, the reports from the field from
7 all six units were that nothing happened. And that is essentially what
8 P575 says. The word "Grubori" appears nowhere in P575. This is the
9 first report General Markac sends to the Main Staff. We must focus on
10 General Markac's state of mind on August 25th, when he is told something
11 happened in Grubori. This wasn't the Grubori mop-up operation. This was
12 the Plavno mop-up operation.
13 Can I go into private session for a moment please, Your Honours.
14 JUDGE ORIE: We move into private session.
15 [Private session]
6 [Open session]
7 THE REGISTRAR: Your Honours, we're back in open session.
8 JUDGE ORIE: Thank you, Mr. Registrar.
9 MR. KUZMANOVIC: Sorry, Mr. Registrar.
10 The argument that sending the Lucko Unit into the freedom train
11 operation on August 26th after General Markac learned that "something
12 happened" on the evening of August 27th somehow is evidence that
13 General Markac allowed Lucko to operate with impunity, and is an example
14 of a failure to punish special police members for crimes is simply wrong
15 based upon the Prosecution's own evidence. There is no evidence in this
16 record, much less evidence beyond a reasonable doubt, that by 5.00 on
17 August 25th, General Markac was informed that the Lucko Unit committed
18 murder of civilians in Grubori and nonetheless sent Lucko into the
19 Freedom train operation less than 24 hours later. The use of Ramljane as
20 proof of impunity and failure to punish is factually and legally wrong.
21 Yet despite all of the wrangling we have heard about Ramljane,
22 witness Zdravko Janic testified, in transcript reference 6196 to 97, in
23 relation to Ramljane, he was the one to decide on whether there would be
24 any discipline to be meted out for what happened in Ramljane as he was
25 the one in charge. He says:
1 "Look everything that happened on 26th, I, as a commander, after
2 conducting talks with platoon commanders and unit commanders, established
3 that there was no overstepping of authority and I did not treat it as any
4 kind of incident. Therefore, there was no reason for imposing or
5 launching any disciplinary proceedings."
6 Now with respect to Grubori, I want to go back in private session
7 again for a moment, Your Honours.
8 JUDGE ORIE: We move into private session.
9 [Private session]
13 [Open session]
14 MR. KUZMANOVIC: Your Honours, when would you like me to stop for
15 a break --
16 THE REGISTRAR: Just a second, please.
17 Your Honours, we're back in open session. Thank you.
18 JUDGE ORIE: Thank you, Mr. Registrar.
19 I left it to some extent to you what would be the best way to
20 split up your time. We have a --
21 MR. KUZMANOVIC: Your Honour, I have --
22 JUDGE ORIE: -- break of some 20 to 25 minutes to be taken
23 somewhere in the next 10 or 15 minutes, but if would you like to have an
24 early break, that's possible as well.
25 MR. KUZMANOVIC: Why don't we have an early break. I'll go over
1 what else I have. It's not very much. And then I will hand you off to
2 Mr. Mikulicic, Your Honour, that's fine.
3 JUDGE ORIE: Yes, if you find this a suitable moment.
4 MR. KUZMANOVIC: It is.
5 JUDGE ORIE: Let me just check. If we would resume at 5.30,
6 which would leave another one hour and a half, would that be sufficient
7 for you, Mr. Mikulicic?
8 MR. MIKULICIC: It will be, Your Honour.
9 JUDGE ORIE: Then we will take a break. And where we took a
10 shorter break earlier, we will have now a break of 25 minutes. We'll
11 resume at 5.30, sharp.
12 --- Recess taken at 5.10 p.m.
13 --- On resuming at 5.33 p.m.
14 JUDGE ORIE: Mr. Kuzmanovic, may proceed.
15 MR. KUZMANOVIC: Thank you, Your Honour.
16 I wanted to get back to the issue of notice for just a moment to
17 General Markac. Notice, Prosecution would equate notice to
18 General Markac of crimes by supposedly driving down a road and seeing
19 someone who was dead and automatically equating that with crimes
20 committed by the special police. That is not notice.
21 There is no report, no written report from the military police,
22 the fundamental police, no referral from the HV Main Staff, the countless
23 internationals criss-crossing Sector South or any other entity to
24 General Markac, in written or oral form, that was made to him that told
25 him, Look, your special police are burning and looting. Your special
1 police are out of control. You need to control your special police.
2 None. There's none of that in evidence.
3 I wanted to just briefly touch upon one issue which relates to
4 questions asked about the transcript in Brioni and General Markac and his
5 suggestion of accusing the Serbs of having launched a sabotage attack
6 against Croatian forces referred to in the Brioni transcript. There's
7 been some questioning regarding this issue as some sort of either
8 criminal intent or character flaw or -- I don't know what. Even though
9 this pretext for attack never occurred, under Article 372 of the
10 Additional Protocol I of the Geneva Convention, this is a legitimate ruse
11 of war. Feigning provocation is not an illegitimate ruse described in
12 the protocol. Decoys, mock operations, misinformation which are intended
13 to mislead the adversary or induce him to act recklessly do not infringe
14 rules of international law applicable in an armed conflict and are not
15 perfidious. That is, again, Article 37(2) of the Additional Protocol.
16 I want to talk in some detail about Mr. Celic. He is heavily
17 relied upon by the Prosecution and his credibility on the issue regarding
18 Grubori. And I want to go through as much of his testimony as possible
19 to -- to really stress what I believe to be the lack of credibility of
20 Mr. Celic.
21 Transcript references here are page 7956 to 57, in relation to
23 We know who Celic is. He was a person who initially wrote that
24 nothing happened in Grubori and later claimed that Mr. Sacic dictated a
25 report to him to say that something happened in Grubori. (redacted)
4 "I believe that things were the way he," meaning Sacic, "had put
5 them. Not at any moment did I doubt what he was saying," Celic
7 When Your Honour Judge Orie confronted Celic with the fact that
8 the report's version of events was at odds with his current version of
9 events, Celic responded that the action as described in P564 could have
10 agreed with the experience of another special police unit in the area.
11 When he was again reminded that P564 was written by him and related to
12 his unit, he eventually admitted that the information in the report that
13 was dictated to him was incorrect. That's transcript reference 7957.
14 He failed to provide the Trial Chamber with any reasonable
15 explanation for his failure to bring this to his superior's attention,
16 meaning Turkalj. Because Turkalj was the head of the Lucko Unit and was
17 Celic's superior. Lack of credibility.
18 Transcript reference 8111 to 8112. Under cross-examination,
19 Celic stated that he told Sacic that: "Nothing had happened, that there
20 had been no incident, no prisoner of war, nothing."
21 Celic was then asked:
22 "So you signed a report where you essentially could not confirm
23 the information that was in it?"
24 Celic's answer was: "Absolutely."
25 Again, lack of credibility. When asked if it had crossed his
1 mind, at 8112 to 8113, when he was speaking with Sacic, to ask Sacic who
2 told him what happened in Grubori, Celic testified that he told Sacic to
3 ask the group leaders what had happened.
4 When asked whether Celic himself had asked his section commanders
5 what had happened in Grubori, Celic said no. His lack of initiative is
6 highly suspect. Again, lack of credibility with respect to Celic.
7 8113 to 1816. Celic was asked:
8 "Bearing in mind that what Mr. Sacic had dictated to you was a
9 fairly dramatic and worrying report, did you not feel, as a junior
10 commander, that you should call these men," meaning Celic's subordinates,
11 "back from leave and establish the facts of what had happened in
13 Celic responded:
14 "From the point when I had the meeting with Sacic, there was no
15 one I could talk to because the men were on leave, because I only went to
16 Zagreb for one day. I spent the night there and then I returned."
17 Again, lack of credibility.
18 P761 at page 41, which is Sacic's -- Celic's interview. I think
19 I need to go into private session for this, Your Honour.
20 JUDGE ORIE: We move into private session.
21 [Private session]
8 [Open session]
9 THE REGISTRAR: Your Honours, we're back in open session. Thank
11 JUDGE ORIE: Thank you, Mr. Registrar.
12 MR. KUZMANOVIC: Celic's evidence vis-a-vis what was discussed in
13 the private session is further discredited by the fact that at 0900 hours
14 on the 26th of August he was in Ramljane carrying out an operation. In
15 live testimony, at transcript reference 8026, Celic distanced himself
16 from his initial account stating that he produced his second Grubori
17 report in Gracac after the Ramljane operation. Again, lack of
19 Transcript reference 7970 to 7971. Balunovic submitted a report,
20 P572. Balunovic was one of the group leaders in Grubori that the Chamber
21 called to testify. This report was starkly at odds with the version of
22 events Balunovic had told Celic because he had reported orally to Celic,
23 his operational commander, that nothing had happened. When Celic was
24 asked whether he had discussed this discrepancy with Balunovic, he
25 testified that he had not done so. He hypothesised that Balunovic's new
1 report might have based on his second report, which is P564, meaning the
2 seconds report written by Celic, which was allegedly dictated to him by
4 "Balunovic must have seen it," Celic testified. However, when
5 asked whether he could provide the Chamber with any evidence of Balunovic
6 having read the dictated report, all he could say was:
7 "The report was on the table for everybody to see."
8 The fact that Balunovic was one of Celic's good friends, which is
9 indicated in transcript reference 7967, casts significant doubt on the
10 assertion that he never discussed the striking discrepancy between
11 Balunovic's two reports with Celic.
12 Again, lack of credibility. Transcript 8101 to 8103. When Celic
13 read Balunovic's second report, P572, he failed to discuss the
14 discrepancies between it and Balunovic's first report with Balunovic.
15 The second report contained new information which was not in the report
16 which was dictated to Celic by Sacic, allegedly. Though Celic read
17 Balunovic's report and must have understood that it was alarmingly at
18 odds with Balunovic's initial report, Celic testified that he did not
19 discuss the matter in any detail with Balunovic. This is in spite of the
20 fact that Celic testified he was "surprised and interested" by the
21 additional information contained in Balunovic's report. Again, another
22 lack of credibility.
23 Transcript reference 8098 to 99. When confronted with Flynn's
24 testimony that he saw a huge plume of smoke over Grubori on the afternoon
25 of 25 of August, 1995, and that virtually every structure in the
1 hill-side town was on flames, transcript reference for Flynn is 1064,
2 Celic testified that from a vantage that was approximately a kilometre
3 away from Grubori, on the same day, at roughly the same time, he saw
4 nothing. Again, lack of credibility.
5 Transcript reference 8106 to 8107. Following the operation in
6 Grubori on the 25th, Celic and his fellow special police returned to
7 Gracac in convoy, five per vehicle. When asked whether he had discussed
8 the operation on the way back to Gracac, Celic stated that neither he nor
9 anyone else in the vehicle had discussed the operations. Again, a lack
10 of credibility.
11 Transcript reference 8107 to 8110. When asked whether in line
12 with protocol as a junior commander with the special police, he was
13 obliged to seek information from his section leaders on the amount of
14 ammunition that had been expended on the operation, he conducted an
15 ammunition check -- he was supposed to have conducted an ammunition check
16 at the end of the Grubori operation and he conveniently did not.
17 Transcript reference 8128 to 8129.
18 On page 424 of P762, when describing the events of
19 26th of August, Celic does not mention having been involved in a meeting
20 with Sacic and Cermak. This description of the day's events contradicts
21 what Celic gave to the Trial Chamber in his live evidence. In court,
22 Celic suddenly remembered that in fact he did have a meeting with Sacic
23 and Cermak, during the course of which Celic had discussed the details of
24 the Grubori operation.
25 It is crystal clear that Celic was a witness who said anything to
1 cast blame on others and not himself. He talked with no one, he saw
2 nothing, he heard nothing, yet he signs reports which went up the chain
3 to General Markac which he knew were false. He accused Sacic of
4 dictating the reports to him, but he failed to confront his own
5 subordinates for writing false reports, nor did he tell his own
6 commander, Turkalj, of this occurrence.
7 With respect to planning and Markac's alleged involvement in
8 planning of Operation Storm, I refer the Chamber to two exhibits, D535
9 and D543. Those are orders from the HV Main Staff dated June 26th, 1995,
10 and July 29th, 1995, which spelled out the operation to be carried out in
11 two stages over three days from the Velebits to the Gospic-Gracac road.
12 Both of those orders, with the plans, were given to Markac. He had no
13 involvement in the planning of those or in terms of planning of
14 Operation Storm.
15 He was given a ready-made plan to implement, not asked to put a
16 plan together.
17 With respect to Donji Lapac, P586, the report of Branislav Bole,
18 which describes Janic's attempt to get the commander of the
19 118th Regiment to stop burning buildings, and reported that the special
20 police had nothing to do with the burning of Donji Lapac as the special
21 police was outside of Donji Lapac toward Kulen Vakuf.
22 D556 is the report of Janic regarding the same issue, which, as a
23 opposed to the final trial brief at paragraph 411, asserts that Markac
24 ordered the special police artillery to fire on the town of Donji Lapac.
25 D55, page 47, shows the Main Staff log in where Markac contacted
1 the Main Staff at 2120 on the 7th of August. Witness Pavlovic described
2 a heated conversation that General Markac had with General Miljavac from
3 the Main Staff. D555. This contact was from Gracac as there was no way
4 to contact the Main Staff from Lapac. That's transcript reference 25272
5 to 73.
6 Pavlovic also discussed the special police entry into Donji Lapac
7 after General Markac had prohibited his advance force to open fire on a
8 mixed column of ARSK soldiers and civilians and tanks with heavy
9 weaponry. That's at transcript reference 25259.
10 The last thing I want to talk about, Your Honours, is Gracac.
11 And in brief, I want to refer you to the statement of Mr. Vanderostyne,
12 who is really the sole witness, essentially, that the Prosecution relies
13 on for Gracac.
14 His statement is fairly long. To be frank, it reads like a
15 John le Carre spy novel. But he discusses what he saw in paragraphs 29
16 and 30. He says in paragraph 29, In the outskirts of Gracac we saw
17 police cars and policemen that were looting. They wore grey uniforms.
18 As we know the special police uniforms are not grey. Either
19 Mr. Vanderostyne is colour-blind or he was guessing. Or he was wrong.
20 What's interesting is, in paragraph 30, he wanted to know whether
21 they should drive back or go to Knin. He asked himself that question.
22 He says, Finally we drove back although we were very scared. We parked
23 in the central square of Gracac.
24 And I just wanted to leave with you the very scared
25 Mr. Vanderostyne, P325. There is the scared Mr. Vanderostyne walking
1 around in Gracac, observing the special police who apparently were
2 looting trees or whatever they were doing, standing there in Gracac.
3 Finally, I wanted to leave you with one thing before I hand it
4 over to my colleague, Mr. Mikulicic. Thomas Jefferson once observed that
5 the tree of liberty must be fertilised by the blood of patriots.
6 General Markac is a patriot. He is a man of integrity and of character,
7 and after years of occupation led the special police honourably and with
9 And with that I will turn it over to my colleague, Mr. Mikulicic.
10 Thank you, Your Honours.
11 JUDGE ORIE: Thank you, Mr. Kuzmanovic.
12 Mr. Mikulicic.
13 MR. MIKULICIC: With the permission of the Court, I will give my
14 final speech in Croatian, which is more convenient. Thank you.
15 [Interpretation] Your Honours, my learned friends, all
16 participants in the proceedings inside the courtroom and outside the
17 courtroom. Da mihi facta, dabo tibi ius. That is what, in the times of
18 antiquity, judges said to the parties in court. My learned friends
19 before me drew your attention to the facts established in these
20 proceedings. Of course, I accept the analysis of the facts presented by
21 my colleagues who spoke before me, especially in relation to JCE,
22 expulsions, shelling, looting, arson, persecution. And from that point
23 of view, I invoke beneficium cohesionis.
24 Your Honours, I would like to call some legal matters that I
25 believe are important for reaching a fair and just decision in these
1 proceedings. As His Honour Judge Schomburg says, there is no truth
2 without justice or justice without truth. The facts are the truth, and
3 justice is the law.
4 Yesterday, on page 24 of the transcript, line 24, the Prosecutor
5 said that the law is clear, and no attempt is further made to elaborate
6 on that assertion. I claim that the law referred to by the Prosecutor is
7 not clear. The Defence is going to show that the -- that law provides a
8 different foundation for having this Court reach a just decision. I'm
9 going to be dealing with two elements. That is, armed conflict and joint
10 criminal enterprise.
11 In this specific case, all crimes charged in the indictment are
12 placed in a specific area, that is, Sector South, at a specific time,
13 that is to say, the period from the month of July until the 30th of
14 September, 1995. The Prosecutor alleges that throughout that period of
15 time in that area a state of armed conflict prevailed. This assertion
16 maid by the Prosecutor actually justifies, in legal terms, the
17 qualification of the alleged crimes in accordance with Articles 3 and 5
18 of the Statute of the Tribunal, because if the context of the
19 incriminations was not an armed conflict, then this Tribunal would not
20 have jurisdiction. Rather, it would only be national courts that would
21 have jurisdiction. That is to say, the judiciary of the Republic of
23 It is not in dispute that one of the sources of law of this
24 Tribunal is undisputed customary international law. This source of law
25 and jurisprudence defines the concept of armed conflict, which is in
1 conditio sine qua non of the jurisdiction of the Tribunal. On the basis
2 of the results of the evidence adduced, the Defence asserts that the
3 Prosecutor did not prove beyond a reasonable doubt that in the territory
4 encompassed by the indictment, there was a state of armed conflict after
5 the 8th of August, 1995; that is to say, once Operation Storm was over.
6 Customary international law defines a state of armed conflict in
7 such a way that two legally and factually criteria have to be met to
8 characterise a conflict as an armed conflict, either internal or
9 international. That is to say, the intensity of the conflict, that there
10 has to be protracted armed violence and the level of organisation of the
11 participants in the conflict.
12 In his final brief the Defence indicated relevant sources of law
13 that established the undisputed authorities and precedents that embraced
14 such a characterisation according to the principles established --
15 establishing the facts from case to case. Final brief, paragraphs 12
16 through 37.
17 The Defence claims that the evidence adduced undeniably
18 established that the entire political and military leadership of the
19 so-called RSK had left Sector South, the theatre of operations dealt with
20 the indictment. And the evidence indicated by the Defence in its final
21 brief in paragraphs 38 through 41 leads to that conclusion. As the
22 military and political leadership as well as the bulk of the military
23 units of the so-called ARSK had left, intensive combat operations ceased,
24 as did any kind of organisation of the enemy armed forces. Immediately
25 after the operations were halted, and I'm referring to the police
1 specifically, took over its obligations in the liberated territory. I do
2 not know of any example in recent history, if we were to accept the
3 thesis that there is still an armed conflict, that civilian authority
4 would take over its legally established authority in an area where there
5 is still an armed conflict.
6 However, it is correct that in the area of Sector South, in
7 barely accessible mountainous regions, a small number of former members
8 of the so-called ARSK had stayed behind and that they carried out
9 individual and sporadic armed attacks against police forces and the
10 civilians population in the area. However, by no means can these
11 activities be defined as intensive or organised. The repression
12 apparatus of the Republic of Croatia carried out activities aimed at
13 locating and neutralising such groups during daily searches of the
14 terrain that followed after military operation Storm. They were aimed at
15 located and neutralising leftover weaponry, mines and explosive devices,
16 with the basic objective of establishing civilian authority and general
17 safety and security in the liberated area.
18 Such sporadic and unorganised activities of the members of the
19 former so-called ARSK cannot legally be characterised as an armed
20 conflict. Customary international law characterises such as activity as
21 internal disturbances and tensions. By its essence, form and intention,
22 this activity is actually a typical example of terrorist activity. It is
23 the fundamental obligation of every sovereign state to use legal and
24 repressive means against illegal activity, that is, directed at
25 threatening the legal, state and social system of the state concerned.
1 On the basis of the Law on the Interior that was in force at the time of
2 these incidents, the basic function of the special police is combatting
3 terrorism. Therefore, the use of special police in actions of searching
4 the terrain was not only the obligation of the sovereign state to
5 establish law and order in its territory, in order to find and neutralise
6 those who do not accept the legal system of that state, it was their
7 legal obligation as such.
8 There are different examples in contemporary history that were
9 never characterised as that -- as that kind of activity. I would like to
10 remind you of the military and police actions of the Israeli army and
11 police against the members of Hamas, actions of the British army and
12 police against members of the IRA, actions of the Spanish police and army
13 against the members of ETA and so on.
14 As a matter of fact, in these cases they even had a rather good
15 hierarchical organisation, and in some cases they even controlled parts
16 of that territory. That is to say, that there were some elements that
17 could meet the criteria of customary international law that are applied
18 for defining armed conflict. However, that never happened, and no
19 international court ever established jurisdiction, and the jurisdiction
20 of national courts was never brought into question.
21 The evidence adduced, paragraph 38 of our final brief, shows --
22 that already on the 7th of August, 1995, at the 295th session of the
23 Croatian government, Minister Susak announced the process of
24 demobilisation in the Croatian Army. Thereby, already on the 9th of
25 August that process started and 70.000 members of the Croatian Army were
1 demobilised. This fact leads to the conclusion that the need for
2 military operations to be carried out by the Croatian Army had ceased to
3 exist due to the absence of enemy combat activities of a higher degree of
4 intensity and organisation.
5 The Prosecutor recalls the decision made in the Tadic case in
6 this Tribunal. Namely, that a state of armed conflict ceases to exist
7 once a peace agreement is concluded. The Defence believes that this
8 decision is not applicable in this specific case. First of all, because
9 in accordance with customary international law, peace agreement is just
10 one of the ways in which an armed conflict is brought to an end. Other
11 ways are the factual cessation of hostilities, the establishment of
12 friendly relations, unconditional surrender, or so-called subjugatio,
13 that is to say, subjugation. Additional Protocol I also envisages that
14 the cessation of active hostilities or a general stop in military
15 operations has to exist.
16 The armed conflict in the Republic of Croatia, in this specific
17 case, did not start with a formal declaration of any kind. We know that
18 international law does not require a formal declaration of war in order
19 for a war or armed conflict to start. However, in order to define a
20 state of armed conflict, why would we require a formal document
21 establishing the end of that conflict. Just as the conflict started via
22 facti by an attack of the so-called Army of the Republic of the Serb
23 Krajina against government authorities of Croatia, that is to say, police
24 stations, the conflict ended in the same way, via facti, when the combat
25 activity of the enemy side subsided and when their structures fell apart.
1 I would like to remind Your Honours of examples from recent
2 history in which armed conflicts or, rather, the process of hostilities
3 also ended without any kind of formal agreement. I'm giving the example
4 of the Falklands armed conflict and the war between Iran and Iraq.
5 So, Your Honours, it is the position of the Defence that roughly
6 after the 8th of August, 1995, there was no armed conflict, and that is
7 how it is defined by undisputed international law. This Tribunal
8 actually has no jurisdiction, jurisdictio ratione materiae, to prosecute
9 crimes that were committed upon the conclusion of military operations
10 during military Operation Storm which the Prosecutor charged as the
11 commission of crimes from Articles 3 and 5 from the Statute of this
13 Now I would like to say a few words about joint criminal
15 On 29th of May, 2009, I spoke in this courtroom before this
16 Trial Chamber at the beginning of the Defence case and I said that the
17 Defence would prove, contrary to the Prosecutor's allegations, that there
18 could be no question about the existence of a joint criminal enterprise
19 which had allegedly involved my client, General Markac, among other
21 Today, 15 months later, I'm absolutely convinced that Defence has
22 managed to prove its case, i.e., that the Prosecutor has failed to prove
23 beyond a reasonable doubt that a joint criminal enterprise ever existed
24 and that my client was one of its participants, and that there are legal
25 presumptions to apply the doctrine of the extended JCE category 3.
1 I said then that the style and form of the indictment, in terms
2 of its architecture, reminded me of indictments which had been widely
3 applied in our domestic jurisdiction against perpetrators of alleged
4 crimes against the socialist order of the former state pursuant to
5 Article 26 of the former penal code of the Socialist Federal Republic of
6 Yugoslavia. Those crimes were allegedly motivated by a joint criminal
7 plan to overthrow the socialist order of the former state. Crimes within
8 that context that may have arisen from that plan were imputed to all the
9 accused. All the states of the former socialist order recognised a
10 similar system.
11 After the fall of the Berlin Wall and transition of political and
12 legal systems, that system simply collapsed because it was rigid and
13 unjust and it was not sustainable because it had existed on the margins
14 of the achievements of modern civilisation and the judicature of the
15 modern civil society of the 20th century.
16 However, despite the opinion of the Appeals Chamber in the Tadic
17 case about an astonishingly similarity between the institute of joint
18 criminal enterprise and the provision of the former penal code of the
19 Socialist Federative Republic of Yugoslavia, Article 26, dealing with the
20 liability of an organiser of a criminal association or organisation, one
21 should clearly point out that this is simply not true. There are three
22 crucial differences between the legal construct of JCE as proffered by
23 the Prosecutor, and Article 26 of the former criminal code of the SFRY.
24 Pursuant to Article 26, the only person who was held liable was the
25 organiser of a criminal association who was also the criminal figure.
1 When it comes to the extended JCE, it is not only the organiser or the
2 leader of an enterprise who is held liable but also potentially all
3 persons by whom the plan has been adopted. Ultimately, this means that
4 the Prosecutor of this Tribunal may indict anybody they consider to be a
5 subscriber to a criminal plan. And in the relevant indictment we can see
6 that these may include various known and unknown individuals.
7 The second difference pursuant to Article 26 lies in the fact
8 that the organiser of a criminal association was held liable only for
9 those crimes which had been committed within the framework of the
10 criminal association's plan and not for the transgressions of its
11 members. An organiser who did not participate in the commission of a
12 crime could have been held responsible only if that act had been
13 envisaged by the plan, and this corresponds with the fundamental form of
14 JCE category 1, but certainly not to its extended form, according to
15 which an accused is held responsible even for crimes that he could only
17 In that, the character of foreseeability has been objectivised
18 and fails to take into account the subjective traits of each and every
19 accused or the objective circumstances of the context which existed
20 tempore acti at the time when the crime was committed.
21 The task of the Prosecutor in a socialist legal system was
22 nevertheless more challenging and demanding than the task of the
23 Prosecutor at this Tribunal. The former had to establish or, rather,
24 identify a direct perpetrator and subsequently a causal link, or a nexus
25 causalis, between a perpetrator of a crime and the alleged planner or a
1 superiorly positioned member of the alleged criminal plan.
2 In our example in the category 3 of JCE, the Prosecutor does not
3 even deduce evidence to prove that link so that the responsibility of a
4 perpetrator behind a perpetrator is presumed by the foreseeability of the
5 consequence. Needless to say, such a procedural and legal situation is
6 particularly conducive to the work of the Prosecutor and greatly
7 facilitates his procedural duties; whereas, on the other hand, it is
8 particularly prejudicial for the accused because his guilt is actually
9 presumed and equalised with the objective responsibility which, in legal
10 terms, exists only in some civil law cases in connection with the use of
11 the so-called hazardous substance and it is not in criminal law cases.
12 The accused seems to be in a position where he must prove his
13 innocence instead of the Prosecutor having to prove the former's guilt.
14 Such a procedural situation derogates the presumption of innocence.
15 Allow me to remind the Honourable Chamber that the UN
16 Secretary-General presented his report pursuant to the UN Security
17 Council Resolution number 808 to adopt the Statute of this Tribunal. On
18 that occasion, the Secretary-General clearly emphasised that the
19 principle of legality requires from an international Tribunal to apply
20 the rules of international humanitarian law which had unequivocally
21 become an integral part of international customary law.
22 In terms of the Tribunal's subject matter jurisdiction, there's
23 no dispute that the Geneva Conventions, The Hague Conventions, the
24 Convention on the Prevention and Punishment of the Crime of Genocide, the
25 Statute of the International Military Court in Nuremberg, as well as the
1 Resolutions of the International Law Commission from 1950, are its
2 sources of law. Any other application of law or precedents beyond the
3 aforementioned legal sources are always partially disputable and the
4 Trial Chamber should necessarily provide a reasonable legal explanation
5 for the application of certain legal institutes unknown to the
6 aforementioned generally adopted international humanitarian law.
7 In this case, the Defence is justifiably concerned about the
8 incriminations that the Prosecutor imputes to the accused which point to
9 the legal construct of expanded JCE. This is because there's no single
10 provision in this Tribunal's Statute or in the aforementioned
11 indisputable sources of international humanitarian law where the legal
12 institute of joint criminal enterprise is mentioned.
13 We have already heard counter- arguments according to which JCE
14 is not even a separate crime but, rather, a form of criminal
15 responsibility or command responsibility, which arises from the
16 provisions of Article 7/1 and 7/3 of the Statute of this Tribunal. The
17 Defence categorically refuses to accept this legal explanation and there
18 will be legal arguments to corroborate the position of the Defence in
19 this respect.
20 Individual criminal responsibility of a natural person for crimes
21 prosecuted according to international law has been unequivocally applied
22 in the case law of ad hoc international tribunals. This Tribunal has
23 established five types of criminal responsibility. Two principle ones,
24 direct perpetration, on the one hand, and planning of a crime on the
25 other. And three accessory ones: Aiding, abetting and any other form of
1 action which has contributed to the planning or commission of a crime.
2 The theory of command responsibility which arises under the Anglo-Saxon
3 common law doctrine of vicarious liability is founded in the provision
4 7/3 of the Statute. The Appeals Chamber in Tadic case established by way
5 of interpretation, per analogiam iuris, the construction of JCE as an
6 alleged form of legal responsibility. In that, one should bear in mind
7 that doctrine of vicarious liability originates from the Middle Ages as a
8 responsibility of the superior for the damages inflicted upon third
9 persons by their subordinates pursuant to the maxim respondeat superior.
10 In Delalic case, the Trial Chamber established the following
11 elements which constitute the term "indirect command responsibility"
12 according to the standard comments of the legal profession as follows:
13 Functional, dealing with the superior's position and a hierarchical
14 relationship with his subordinates; cognitive, the superior's awareness
15 that a subordinate is in the process of preparing to commit a crime or a
16 crime has already been committed; and operational, a failure on the part
17 of the superior to take the necessary and reasonable actions to prevent
18 crimes or punish the perpetrators thereof.
19 This standard of fact and law has imposed a heavy burden on the
20 Prosecutor to prove his case. Hence, the Prosecutor has opted for an
21 easier route, albeit a problematic one, from the legal point of view from
22 the standard of fact and law in terms of joint criminal enterprise. As
23 early as 2000, it was noticed that 81 per cent of all indictments --
24 indictments presented before this Tribunal were based on the JCE
25 construct. Why was that? By applying this construct, the Prosecutor
1 doesn't have to prove the cognitive and functional elements from Delalic
2 indication, whereas the subjective element of the crime as a form of
3 guilt, the so-called dolus eventualis, or an evil intent, is formulated
4 so as to imply that the awareness of a possible commission of a crime
5 encompasses also collateral crimes that the superior didn't have any
6 knowledge of but, allegedly, he could have foreseen them due to the
7 nature of a criminal plan or objective.
8 In Tadic case, the Trial Chamber was not able to establish that
9 the accused had participated in the killings of five Muslim civilians in
10 the village of Jaksici, near Prijedor, in Bosnia-Herzegovina. The
11 killings had been committed by Serbian paramilitary troops engaged in the
12 process of ethnic cleansing. Deciding on the Prosecutor's appeal on the
13 part of the first instant Chamber's decision exculpating the accused from
14 that charge, the Appeals Chamber reached a lucid decision and invented a
15 systematic model of individual responsibility quite legally unfounded,
16 from the Defence's point of view, and the Chamber based that model on the
17 provision of Article 7 of the Statute. To arrive at its decision the
18 Appeals Chamber had carried out an analysis of the jurisprudence of
19 national courts and international tribunals after World War II with a
20 view to establishing that postulate of indisputable element of the
21 international humanitarian law which had been laid down by the UN
22 Secretary-General in the previously quoted 1993 report.
23 Likewise, the Appeals Chamber had established that the term
24 "joint criminal enterprise" is entrenched in a minimum of two
25 international treaties; the international convention for the suppression
1 of terrorist bombings, dated 1997, and the 1998 Rome Statute of the
2 International Criminal Court.
3 Nota bene, Your Honours, both of these legal documents were
4 drafted after the incriminated acts had been allegedly committed by the
5 accused in 1995. Also, the Appeals Chamber established that the doctrine
6 in the implementation of a joint intention is entrenched in international
7 laws of many states. In short, the Appeals Chamber has established that
8 the case law existed and that consequently joint criminal enterprise as a
9 form of responsibility has its firm foundation in humanitarian law.
10 Contrary to the above, the Defence believes that this conclusion
11 is certainly not conclusive. In the Tadic case, which is what the
12 Appeals Chamber analysed, there's no evidence that the Trial Chamber
13 based its judgement on that legal construct. JCE does mention a joint
14 plan and proffers conjectures as to whether and what way the competent
15 court had really taken into account bases from such indictments. But
16 this is by no accounts efficient to establish that the theory of the JCE,
17 tempore criminis, which means that it coexisted with the crimes imputed
18 to the accused, was part of international law. There is only one
19 national court judgement, Italian court in Dottavio in 1947, in which the
20 court based the guilt of the accused on something similar to the concept
21 of extended JCE. But that judgement is not, nor can it indeed be, an
22 equivocal proof that JCE is entrenched in international customary law.
23 Subsequent judgements in Vasiljevic, Kvocka, Furundzija, and
24 other cases have established the institute and the term "JCE" in the
25 Tribunal's jurisprudence. In that, particularly interesting is a
1 decision in Ojdanic case. The Defence in that case launched an appeal
2 challenging the Tribunal's jurisdiction, and the Trial Chamber in that
3 case confirmed its own jurisdiction with regard to the interpretation of
4 the forms of criminal responsibility allegedly according to the Statute
5 of the Tribunal. The introduction of such judicial practices at the
6 Tribunal could not go unnoticed among the professional public. Many
7 commentators have observed, rather cynically, that the Judges of the
8 Tribunal stand to reap multiple benefits from the application of the
9 legal construct of JCE in cases which would have otherwise been very
10 complex. The contribution of participants has to be established in much
11 broader terms than if the postulates of legality were applied. There's
12 no longer the need to establish the elements of guilt of just one member
13 of JCE which would connect them with the transgressions of other JCE
14 members, as is stated in Krstic case.
15 However, not all Tribunals Chambers or at least not all members
16 of all the Chambers have been unanimous in their way of thinking and in
17 adopting the legal novelty which was JCE. In the Stakic, for example,
18 the Trial Chamber states that --
19 JUDGE ORIE: I am asked to convey the message to you that you're
20 speaking too quickly.
21 MR. MIKULICIC: I was afraid of it, Your Honour, and I will try
22 to do my best.
23 JUDGE ORIE: And just for me also to understand the argument
24 raised, you effectively are asking this Trial Chamber not to follow the
25 case law of this Tribunal --
1 MR. MIKULICIC: Right, that's correct, Your Honour.
2 JUDGE ORIE: -- and to say that we have no jurisdiction if it is
3 about joint criminal enterprise.
4 MR. MIKULICIC: That's right, Your Honour.
5 JUDGE ORIE: That's clear.
6 Then if you would please continue at such a pace that
7 transcribers and interpreters can follow you.
8 MR. MIKULICIC: I will do my best, Your Honour.
9 [Interpretation] In Stakic case, for example, the Trial Chamber
10 states that a restricted interpretation of the provisions of the Statute
11 based on national interpretative methods would be more desirable for
12 those provisions of the Statute which deal with perpetration. This would
13 avoid a misleading impression that a new crime not foreseen in the
14 Statute of this Tribunal has been introduced through the back door.
15 That's paragraph 441.
16 The legal term of a joint criminal enterprise is much too broad a
17 form of co-perpetration, and actually, it constitutes a legal fiction
18 which makes it possible for a person to be prosecuted and convicted for
19 crimes committed by another person even if the former had no intention of
20 contributing to the latter person's crime and possibly had not even been
21 aware of the latter person's actions.
22 Legal experts and writers have published a lot of papers about
23 this topic. I would like to point the Trial Chamber to the work of
24 Professor Kai Ambos, chair of criminal law at Goettingen University, as
25 well as Professor Ciara Damgaard from Copenhagen University, as well as a
1 former chief judge for the Egyptian Ministry of Justice,
2 Dr. Mohamed Elewa Badar, who is the author of an ironical translation for
3 the acronym JCE in English and he says that it stands for "just convict
5 Likewise, I would like to remind you of the Statute of the ICC
6 and its provisions. That Statute was passed at the so-called Rome
7 Conference with a view of having that UN court and the international
8 criminal system confirm the principles and rules that will ensure highest
9 standards of justice. And these rules would have been -- rules would
10 have been better served had they been included in the Statute themselves
11 rather than left to the courts exercising their discretion. It is
12 precisely for that reason that the Rome Statute, in view of the number of
13 participants involved within it was being passed, and in view of the
14 three years that it took, it is considered to be the codification of
15 customary international law and crimes committed at an international
16 level. This process is also considered to be and described as the
17 factual consolidation of the principles of national criminal
18 jurisdictions at an international level.
19 The authors of the Statute did not intend to create new legal
20 rules or create a new form of criminal liability. Philippe Kirsch, the
21 first president of the ICC, established that it was not the task of the
22 Statute to create new substantive law but, rather, to include those
23 crimes that have already been recognised and prohibited on the basis of
24 existing international law. The intentional non-conclusion of the
25 institute of joint criminal enterprise in the Rome Statute is an
1 indicative fact on the basis of which it may be concluded, with full
2 justification, that joint criminal enterprise should not be considered
3 part of customary international law.
4 The principle of legality is based on the following premises.
5 The prohibition of retroactive punishment by law, nullum crimen sine lege
6 praevia; the prohibition of analogy, nullum crimen sine lege stricta; the
7 requirement that written legislation must exist, nullum crimen sine lege
8 scripta; the requirement that law must be defined exactly, nullum crimen
9 sine lege certa; and the principle that there shall be no punishment
10 without law, nulla poena sine lege.
11 In addition to the undisputed acceptability of the principle of
12 legality in national criminal systems of contemporary legal orders, the
13 obligation to observe that principle is prescribed in fundamental
14 documents of international law governing human rights; that is to say,
15 the International Covenant on Civil and Political Rights, Article 15; the
16 Universal Declaration of Human Rights, Articles 11 and 2; the Convention
17 for the Protection of Human Rights and Fundamental Freedoms of the
18 Council of Europe, Article 7. In the case of S.W. against the
19 United Kingdom, and C.R. v. the United Kingdom, the European Court, as
20 far as back as 1995, explicitly stated that these provisions on observing
21 the principles of legality cannot be derogated even in a case of war or
22 another emergency.
23 In the Statute of the Tribunal there is no explicit provision
24 involving the principle of legality but the report of the
25 Secretary-General of the UN refers to it when stating that the
1 application of the principle nullum crimen sine lege makes it incumbent
2 upon the Tribunal to apply rules of international humanitarian that have
3 quite certainly, beyond any doubt, become part of customary law.
4 Otherwise there would be a problem. Namely, that only some states,
5 rather than all states, having to abide by certain convention. For
6 example, the United States of America never accepted the Rome Statute and
7 therefore, in theory, by strict application of international covenants,
8 they wouldn't have to respect the principle of legality which, of course,
9 from a legal and civilisational point of view, would be a completely
10 absurd situation.
11 Bearing in mind the criteria of accessibility and foreseeability,
12 it is not sufficient for a court to establish only the objective
13 capability of an accused person to recognise a repressive or prohibitive
14 norm, but also the subjective capacity of a specific accused person to
15 anticipate and recognise his or her own criminal liability that would be
16 the consequence of a violation of such a norm. The objective
17 understanding of foreseeability in terms of extended joint criminal
18 enterprise, it gets dangerously close to objective responsibility which
19 seriously brings into question the principle of liability that is
20 explicitly accepted by the Tribunal itself.
21 It is clear that internal law that was in force in the territory
22 of the former SFRY, tempore criminis, nevertheless has to be taken into
23 account and special attention has to be devoted to it in view of this
24 subjective element. Therefore, it is surprising that the Chambers of the
25 Tribunal so far have not expressed any great interest in studying
1 national law and jurisprudence. It is correct that neither the Statute
2 nor the Rules of Procedure and Evidence of the Tribunal do not refer to
3 national law except in terms of sentencing, and only partially at that.
4 But it is equally true that in terms of accessible and foreseeability,
5 one should investigate at least the basic legal institutes that existed
6 in the territory of the former SFRY, tempore criminis. In our view --
7 [In English] I'm still too fast.
8 JUDGE ORIE: Yes. I would like to repeat the message. Please
10 MR. MIKULICIC: Sorry. I'm constantly looking at the clock and
11 I'm trying to finish my presentation up in the time, but --
12 JUDGE ORIE: Yes, but not at the expense of the --
13 MR. MIKULICIC: Sorry, once again, to the interpreters.
14 JUDGE ORIE: Please proceed.
15 MR. MIKULICIC: Thank you, Your Honour.
16 [Interpretation] The Defence is pointing out the dissenting view
17 of Judge Cassese in the Erdemovic case; namely, that is necessary to
18 analyse the law of states from the countries that the accused persons
19 come from. That is to say, that the citizen of any one of these states,
20 Croatia included, was duty-bound to be familiar with criminal law in the
21 territory of that state and therefore base one's expectations on that.
22 Judge Cassese, in paragraph 49, says that it would be proper and
23 reasonable to look at the national legislation of the accused rather than
24 moral considerations or practical principles, because the general rule of
25 in dubio pro reo also works in favour of that.
1 There is no doubt that sometimes it is truly difficult to see
2 what customary law is because it comes into being as unwritten law. It
3 is only when it is legally established that an action was carried out
4 because it was a legal obligation, opinio juris; that is, it is only then
5 that customary law is established.
6 Whoever claims that there is a rule of customary law has to prove
7 constant, general, and consistent practice to that effect. Therefore,
8 what has to be referred to is the largest possible number of examples
9 from jurisprudence -- from practice, from case law, in which subjects of
10 international law acted in accordance with a particular rule.
11 Opinio juris can only be established on that basis as a prerequisite for
12 a rule of customary law to come into being. In seems that in relation to
13 the institute of joint criminal enterprise, opinio juris is simply not
14 there. At least it would not fall under the phrase of "beyond any
15 reasonable doubt." It is part of customary law.
16 The Defence claims that the Prosecutor did not prove beyond a
17 reasonable doubt that opinio juris exists in view of the doctrine of
18 joint criminal enterprise, notably category 3. Actually the Prosecutor
19 didn't deal with this at all. And it seems as if they believe that --
20 that it is a presumption such as presumptio juris et de jure. However, I
21 would like to recall views to the contrary, views that are contrary to
22 the views of the Tadic Trial Chamber. The Pre-Trial Chamber of the
23 Special Court for Cambodia, ECCC, in case number 002/19-09-2007, in their
24 decision reached on 20th May this year, concludes that, I quote:
25 "The principle of legality requires that the ECCC should refrain
1 from relying on extended joint criminal enterprise in their activities."
2 This Chamber did not find any support for the existence of joint
3 criminal enterprise category 3, tempore criminis, in -- in customary
4 international law, and the Tadic Chamber referred to that specifically.
5 The same view is held by the Pre-Trial Chamber of the ICC, the
6 International Criminal Court, in the case of Lubanga. And they state
7 that they particularly disassociate themselves from the excessively
8 subjective concept of JCE. The same court, in the Katanga case, on the
9 basis of a decision reached by the Appeals Chamber, rejects this form of
10 responsibility, stating that it is not part of customary international
11 law. The same position was articulated in the Bemba case as well.
12 May I remind you that may not all the Judges in this Tribunal
13 share the views of the Tadic Trial Chamber. For example,
14 Judge Per-Johan Lindholm in the Simic case, disassociates himself from
15 the concept of the doctrine of joint criminal enterprise in that case,
16 but also in general terms. I would particularly like to point out the
17 position of a former Judge of this Tribunal, Wolfgang Schomburg, who, in
18 an article he has published on 3rd of June, this year, in the blog
19 Cambodia Tribunal Monitor, says that the decision in the Tadic case
20 regarding the institute of extended joint criminal enterprise gave rise
21 to criticism in professional circles because of the potential excessive
22 application. And that, therefore, this Tribunal has to take this
23 criticism seriously so that the theory of joint criminal enterprise would
24 not grow into guilt by association. Judge Schomburg says that customary
25 international law and the principle of legality are like cat and dog. On
1 the one hand, there is an wish to sanction something; and, on the other
2 hand, there is the dicta that new criminal law should not be established
3 retroactively. Judge Schomburg believes that the decision of the
4 Pre-Trial Chamber of the Special Court for Cambodia is amazing in its
5 meticulous analysis of the decisions of courts after the Second World War
6 and that the said decision is a more-than-welcome development after years
7 of dangerous confusion. And the reference being made is to the
8 application of the doctrine of extended joint criminal enterprise.
9 The decision of the Trial Chamber in the Brdjanin case states
10 that the Prosecutor, if wishing to prove joint criminal enterprise, must
11 identify the physical perpetrator of the crime involved and prove that
12 there was agreement between accused and the direct perpetrator on the
13 perpetration of a specific crime. The Chamber refused to apply the
14 doctrine of joint criminal enterprise, thereby making a significant
15 turnaround in view of the case law of the Tribunal up until then.
16 Obviously when decisions were being made by different Chambers of the
17 Tribunal, there were differences in understanding legal institutes, and
18 this division is also due to the differences between common law and civil
19 law systems. For example, in the Stakic case, the Chamber decided to
20 exchange the doctrine of joint criminal enterprise with the institute of
22 His Honour Judge Shahabuddeen indicated that problem in his
23 dissenting opinion in the appeals case of Gacumbitsi, where he brings
24 into question the existence of opinio juris because some states accept
25 the theory of joint criminal enterprise, whereas others accept and apply
1 the theory of co-perpetration. The Defence therefore believes that when
2 the theory of extended joint criminal enterprise was introduced, what was
3 brought into question was acting outside international law and the
4 mandate entrusted to the Tribunal by the Security Council of the UN.
5 And finally, I would like to say the following. I believe that
6 it very important to point out the unacceptable procedure on the part of
7 the Prosecutor with regard to the members of the JCE, which the
8 Prosecutor describes as people who have died in the meantime;
9 Dr. Franjo Tudjman, Gojko Susak, Janko Bobetko, Zvonimir Cervenko. One
10 would seriously question the moral and legal foundation for including
11 persons no longer living among the participants of a joint criminal
12 enterprise and even labelling them as co-perpetrators. Without valid
13 arguments and in view of the fact that the aforementioned persons are not
14 in a position to defend themselves from such qualifications, the
15 Prosecutor has presumed their criminal responsibility for the same acts
16 that the accused have been charged with in the indictment issued ex post
18 The same is true of other individuals. Although alive, they have
19 never been summoned as witnesses or in -- in any other capacities --
20 capacity. Even Jarnjak, minister of the interior, tempore criminis;
21 Mirko Norac, commander of Gospic Military District; Milenko Crnjac,
22 commander of Karlovac Military District; Rahim Ademi, commander of
23 Military District North and the accused Gotovina's second in command.
24 Or, some of them have been summoned as witnesses but were never
25 confronted with incriminations and arguments based on evidence according
1 to which they too were members of JCE, or that they were used as JCE
2 tools or instruments. Thus, they were never given a fair chance to stand
3 up in their defence. I'm referring to witnesses Radic, Lausic and Moric.
4 The most questionable, however, is the category of persons, JCE
5 members, whom the Prosecutor describes as different officers and
6 officials, members of the Republic of Croatia government and political
7 officials at all levels, including those in municipal and local
8 organisations, various leaders and members of the HDZ, the Croatian Army,
9 the special police, the civilian police, and other intelligence and
10 security services in the Republic of Croatia, and other known and unknown
12 The Prosecutor labels certain categories of persons as
13 co-perpetrators and/or members of JCE and/or JCE instruments in a way
14 which is simply intolerable and inadmissible from the legal standpoint.
15 In that, these persons do not have any means at stating their case about
16 the presumed guilt imputed to them by the Prosecutor. This procedure is
17 clearly contrary to the presumption of innocence.
18 Let me remind you of the Stakic case decision which says, and I
20 "There is not enough evidence in this case to prove that a
21 genocidal campaign was being planned at a higher level. The persons
22 belonging to the vertical hierarchical structure are all deceased, hence,
23 the evidence cannot be adduced."
24 This standpoint is of particular significance in a situation
25 where the existence of a discriminatory intent as a form of guilt has to
1 be proven both for a crime of genocide as well as a crime of persecution,
2 which is what our client has been charged with. In other words,
3 dolus specialis has to be established and, needless to say, this is
4 particularly difficult to prove in cases of dead JCE members or
6 In conclusion, the Defence states the following. Joint criminal
7 enterprise never existed as an element of the -- of international
8 customary law, tempore criminis, as alleged in the indictment. And I'm
9 referring to category 3. JCE is contrary to the principle of guilt as
10 one of the fundamental principles of modern criminal law. The
11 application of JCE is a dangerous way to expand the notion of mens rea
12 and brings this absolutely close to guilt by association, especially in
13 view of the extended form of JCE.
14 The principle of presumption of innocence has been violated by
15 the application of a conclusion about the existence of an intention on
16 the part of the accused based on objective circumstances as stipulated by
17 the doctrine of extended JCE. The jurisprudence of this Tribunal, as
18 well as the jurisprudence of courts and tribunals which have operated
19 after World War II, is neither unanimous nor consistent in terms of the
20 JCE content theory, which is contrary to the principle of justice and
21 fairness before a court of law and thus does not constitute a -- an
22 opinio juris. The application of the JCE doctrine, across the board, on
23 all political and military structures in a state administration as well
24 as on other known and unknown individuals constitutes a violation of the
25 principle of [indiscernible] and precision of charges which threatens the
1 very purpose of the Tribunal's establishment and existence, and increases
2 the risk arising from an even more extensive use of the JCE theory by
3 national courts and prosecutors in national jurisdictions. All this may
4 have an adverse effect in the process of reaffirming the position of
5 modern criminal law and administration of justice.
6 Your Honours, finally, the Defence suggests that the Trial
7 Chamber did one step ahead to evaluate the arguments about not accepting
8 the theory of JCE which clearly exist in modern legal science and were
9 proffered by various authors. They're clearly present in the way the
10 Judges of this Tribunal think. They are clearly evident in the decisions
11 of various courts and Tribunals after the Second World War and to -- to
12 the application of the doctrine of JCE and to go back to the principles
13 of the liability that exists in criminal law, which is co-perpetration,
14 aiding, abetting. But, in that case, some other requirements of adducing
15 evidence and proving guilt will apply, different from those applied to
16 the doctrine of the JCE in its extended form.
17 I would like to thank you, Your Honour, for your patience.
18 JUDGE ORIE: Thank you, Mr. Mikulicic.
19 This concludes today's session. Tomorrow we'll hear any rebuttal
20 argument from the Prosecution. I appreciate that the parties did their
21 utmost best to stay within the time-limits which leaves us a bit more
22 time perhaps tomorrow. Not to say that we -- that we would use the whole
23 of the morning, that is, three sessions, but it with not be dramatic if
24 the parties, and one hour scheduled for the Prosecution and one hour for
25 the Defence teams, would take a little bit more than that one hour. I
1 suggest that the Prosecution takes the session until the first break
2 tomorrow morning, and that the Defence then will take the second session.
3 Of course, it depends a bit, Mr. Tieger, if would you take the
4 full one hour and a half, I know what is going to happen. So if you
5 would apply some self-limitation and seek compensation perhaps for not
6 having had an opportunity to -- to make final conclusions after
7 Ms. Mahindaratne had spoken, then we could avoid perhaps that we would
8 need a third session and we would perhaps finish the second session also
9 in, let's say, 75 minutes.
10 We adjourn, and we will resume tomorrow, the 1st of September, at
11 9.00, in this same courtroom.
12 --- Whereupon the hearing adjourned at 7.03 p.m.,
13 to be reconvened on Wednesday, the 1st day of
14 September, 2010, at 9.00 a.m.