Tribunal Criminal Tribunal for the Former Yugoslavia

Page 29197

 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

 7     courtroom.

 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:

Page 29198

 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

Page 29199

 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.

Page 29200

 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.

Page 29201

 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 ..."

Page 29202

 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

Page 29203

 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

11     said:

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

Page 29204

 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,

Page 29205

 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

Page 29206

 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

15     commander.

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

Page 29207

 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."

Page 29208

 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

Page 29209

 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

Page 29210

 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

Page 29211

 1     all negative occurrences he meant eliminate all negative occurrences.

 2     The Prosecution argues that it means, I order you to burn down rural

 3     areas.

 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,

Page 29212

 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

15     Knin.

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:

Page 29213

 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

 8     dirty.

 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

Page 29214

 1     members in the liberated areas without the knowledge of superior

 2     commanders.

 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

23     crimes."

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

Page 29215

 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

24     necessary.

25             But this goes back to all of the litigation we had about vertical

Page 29216

 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

17     circumstances.

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,

Page 29217

 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,

Page 29218

 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

Page 29219

 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.

Page 29220

 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.

Page 29221

 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

25     obvious.

Page 29222

 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

10     before.

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

17     trial.

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

Page 29223

 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,

Page 29224

 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

10     acquittal.

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

Page 29225

 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

Page 29226

 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

24     yesterday.

25             This use of artillery is the core of the Prosecution's Brioni JCE

Page 29227

 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

Page 29228

 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

Page 29229

 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

Page 29230

 1     evidence is consistent with the conclusion that the use of artillery was

 2     lawful.

 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

12     wrong.

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

Page 29231

 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

Page 29232

 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

 8     field.

 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

Page 29233

 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

Page 29234

 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

 3     residence.

 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

Page 29235

 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

Page 29236

 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

18     not.

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

Page 29237

 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.

Page 29238

 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

Page 29239

 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

Page 29240

 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

Page 29241

 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

Page 29242

 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

19     soldiers.

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

Page 29243

 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

Page 29244

 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

Page 29245

 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

Page 29246

 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

Page 29247

 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

Page 29248

 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.

Page 29249

 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

Page 29250

 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

 7     suffice.

 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

11     remaining.

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

Page 29251

 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

Page 29252

 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

Page 29253

 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

14     used.

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

Page 29254

 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

Page 29255

 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

16     necessity.

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

Page 29256

 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

20     acquittal.

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

Page 29257

 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

19     deportation.

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

Page 29258

 1     territory.

 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.

Page 29259

 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.

Page 29260

 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

23     quote:

24             "Led by Tudjman, the Croatian leadership adopted a no-mass-return

25     policy, refusing to process group applications for return."

Page 29261

 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

 9     unlawful.

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

Page 29262

 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

16     intention.

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

Page 29263

 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

Page 29264

 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

 3     indictment.

 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,

Page 29265

 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.

Page 29266

 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

20     circumstances."

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

25     ridiculous.

Page 29267

 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

 7     ridiculous.

 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

11     brief.

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

Page 29268

 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

Page 29269

 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

 6     left.

 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

22     submissions.

23             JUDGE ORIE:  Thank you, Mr. Akhavan.

24             Who is next in line?

25             It will be the Cermak Defence.

Page 29270

 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

Page 29271

 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

Page 29272

 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

Page 29273

 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.

Page 29274

 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

17     truth.

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

Page 29275

 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

10     verdict.

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

15     case.

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

Page 29276

 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

Page 29277

 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

Page 29278

 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

Page 29279

 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,

Page 29280

 1     sharp.

 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

Page 29281

 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

Page 29282

 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

Page 29283

 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

 3     prosecution.

 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

Page 29284

 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

 4     work.

 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]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29285











11 Pages 29285-29286 redacted. Private session.
















Page 29287

 1   (redacted)

 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.

Page 29288

 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

Page 29289

 1     certainly going to the highest authorities that there was trouble in the

 2     area.

 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

Page 29290

 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.

Page 29291

 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

Page 29292

 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

Page 29293

 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

Page 29294

 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.

Page 29295

 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 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.

Page 29296

 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.

Page 29297

 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

Page 29298

 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

12     authority.

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

Page 29299

 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

21     brief.

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

Page 29300

 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

Page 29301

 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

Page 29302

 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]

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29303











11 Page 29303 redacted. Private session.
















Page 29304

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6                           [Open session]

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

 8     you.

 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

Page 29305

 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.

Page 29306

 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

 3     matter.

 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.

15   (redacted)

16   (redacted)

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

23     said:

24             "They were telling me there were killings, there were burnings in

25     Grubori."

Page 29307

 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

15     police.

16             Markac specifically dispatched Mr. Sacic to find out what was

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24             JUDGE ORIE:  We move into private session.

25             MR. KAY:  My apologies.

Page 29308

 1                           [Private session]

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

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25   (redacted)

Page 29309











11 Page 29309 redacted. Private session.
















Page 29310

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

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

 9     you.

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

Page 29311

 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

 6     August.

 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.

Page 29312

 1             JUDGE ORIE:  Then it's clear to me, yes.  Whatever it may have

 2     meant.

 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,

11     please.

12             JUDGE ORIE:  We move into private session.

13                           [Private session]

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29313

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

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

Page 29314

 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

Page 29315

 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

Page 29316

 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

Page 29317

 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

Page 29318

 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

25     movement."

Page 29319

 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

Page 29320

 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

Page 29321

 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

Page 29322

 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

Page 29323

 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.

Page 29324

 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.

Page 29325

 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

Page 29326

 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

Page 29327

 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

Page 29328

 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

 8     that:

 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

Page 29329

 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:

Page 29330

 1             "... Markac was aware of the substantial likelihood that murder

 2     would be committed in the execution of his plans for the Grubori

 3     operation."

 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

 8     Grubori."

 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.

Page 29331

 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

22     responsibility.

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

Page 29332

 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

24     521.

25             I think it is important for the Chamber to hear specifics about

Page 29333

 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.

Page 29334

 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

17     conflict.

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

Page 29335

 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

Page 29336

 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

25     assumptions.

Page 29337

 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

Page 29338

 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

Page 29339

 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,

Page 29340

 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]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29341

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 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:

Page 29342

 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]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29343

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

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

Page 29344

 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

Page 29345

 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

22     Grubori.

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)

Page 29346

 1   (redacted)

 2   (redacted)

 3   (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

 6     testified.

 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

Page 29347

 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

12     Grubori?"

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]

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 29348

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

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

10     you.

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

18     credibility.

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

Page 29349

 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

 3     Sacic.

 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

Page 29350

 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

Page 29351

 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

Page 29352

 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

Page 29353

 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

 8     distinction.

 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

Page 29354

 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

22     Croatia.

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

Page 29355

 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

Page 29356

 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.

Page 29357

 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

Page 29358

 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.

Page 29359

 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

12     Tribunal.

13             Now I would like to say a few words about joint criminal

14     enterprise.

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

20     persons.

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.

Page 29360

 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.

Page 29361

 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

16     foresee.

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

Page 29362

 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

Page 29363

 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

Page 29364

 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

Page 29365

 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

Page 29366

 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

Page 29367

 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 --

Page 29368

 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

Page 29369

 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

 4     everyone."

 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

Page 29370

 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

Page 29371

 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

Page 29372

 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

 9     proceed.

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.

Page 29373

 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

Page 29374

 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

Page 29375

 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

21     co-perpetration.

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

Page 29376

 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

17     facto.

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

Page 29377

 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

11     individuals.

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

19     quote:

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

Page 29378

 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

 5     co-perpetrators.

 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

Page 29379

 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

Page 29380

 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.