Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Monday, 14 May 2012

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellants entered court]

 5                           --- Upon commencing at 9.00 a.m.

 6             JUDGE MERON:  Please be seated.

 7                           [Appeals Chamber and Legal Officer confer]

 8             JUDGE MERON:  Good morning, everybody.

 9             Registrar, could you please call the case.

10             THE REGISTRAR:  Good morning, Your Honours.

11             This is case number IT-06-90-A, the Prosecutor versus

12     Ante Gotovina and Mladen Markac.

13             Thank you, Your Honours.

14             JUDGE MERON:  Thank you.

15             Mr. Gotovina, can you hear me in a language you understand?

16             THE APPELLANT GOTOVINA: [No interpretation]

17             JUDGE MERON:  Thank you.

18                           [Appeals Chamber and Legal Officer confer]

19             JUDGE MERON:  Mr. Markac, can you hear me in a language you

20     understand?

21             THE APPELLANT MARKAC: [Interpretation] Yes, Your Honour.

22                           [Appeals Chamber and Registrar confer]

23             JUDGE MERON:  Now, appearances of the parties, please, and

24     counsel for Mr. Gotovina.

25             MR. KEHOE:  Good morning, Your Honours.  Gregory Kehoe; my

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 1     colleague, Luka Misetic; Mr. Guenael Mettraux; and Payam Akhavan on

 2     behalf of General Ante Gotovina.

 3             JUDGE MERON:  Thank you, Mr. Kehoe.

 4                           [Appeals Chamber and Registrar confer]

 5             JUDGE MERON:  Counsel for Mr. Markac, please.

 6             MR. MIKULICIC:  Good morning, Your Honours, everybody in and out

 7     of the courtroom.

 8             My name is Goran Mikulicic.  On my left side is

 9     Mr. Tomislav Kuzmanovic and back row, Mr. Kai Ambos and Mr. John Jones.

10     Our legal assistant and intern, David Gault and Cameron Russell, and on

11     our right-hand side, Vlado Rendulic, our Case Manager.

12             JUDGE MERON: [Microphone not activated]

13             MR. STRINGER:  Good morning, Mr. President, Your Honours.  I'm

14     Douglas Stringer, appearing on behalf of the Prosecution.  I am

15     accompanied this morning by my colleagues - moving from my left to

16     right - Matthew Cross, Laurel Baig, Helen Brady and Saeeda Verrall.  Our

17     Case Manager is Colin Nawrot.

18             JUDGE MERON:  Thank you, Mr. Stringer.  [Microphone not

19     activated] Mr. Gotovina, and Mr. Markac, appeal from the Trial Judgement,

20     rendered in this case on 15 April 2011 by Trial Chamber I.  According to

21     the Scheduling Order issued on 4 April 2012, the Appeals Chamber will

22     presently hear the appeals in this case.

23             I will first briefly summarise the appeals and the manner in

24     which we will proceed today.

25             This case concerns the responsibility of Mr. Gotovina and

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 1     Mr. Markac for crimes committed in the Krajina region of Croatia, around

 2     the time of the military action referred to as Operation Storm, which

 3     took place in August 1995.  During the indictment period, Mr. Gotovina

 4     served as colonel general in the Croatian army and was commander of the

 5     Split Military District.

 6             Mr. Markac was assistant minister of the interior and commander

 7     of the special police in Croatia.

 8             The Trial Chamber found that both Mr. Gotovina and Mr. Markac

 9     were members of a joint criminal enterprise for JC -- or JCE, whose

10     common purpose was to permanently remove the Serb civilian population

11     from the Krajina region by force or threat of force.

12             Both Mr. Gotovina and Mr. Markac were convicted under the first

13     form of JCE for persecution and deportation as crimes against humanity,

14     and under the third form of JCE for persecution and local detentions,

15     murder, inhumane acts as crimes against humanity and for plunder of

16     public and private property, wanton destruction, murder and cruel

17     treatment as violations of the laws or customs of war.

18             The Trial Chamber sentenced Mr. Gotovina to a single term of

19     24 years of imprisonment.  Mr. Markac was sentenced to a single term of

20     18 years imprisonment.

21             Mr. Gotovina advances four grounds of appeal, challenging his

22     convictions, and requests that the Appeals Chamber overturn his

23     convictions in their entirety.  In ground 1, he challenges the

24     Trial Chamber's finding that unlawful artillery attacks on civilians and

25     civilian objects took place.

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 1             In ground 2, he challenges the Trial Chamber's findings that

 2     unlawful attacks forcibly displaced Serb civilians.

 3             In grounds 3 and 4, he challenges the Trial Chamber's findings

 4     that a JCE existed and that he was individually liable for the crimes

 5     attributed to the JCE.

 6             The Prosecution response that all grounds of Mr. Gotovina's

 7     appeal should be dismissed.

 8             Mr. Markac presents eight grounds of appeal, challenging his

 9     convictions, and requests that the Appeals Chamber overturn his

10     convictions in their entirety or, in the alternative, that his sentence

11     be reduced.

12             In ground 1, he challenges the Trial Chamber's findings that the

13     JCE existed and that he was a member of, and individually liable for the

14     crimes attributed to the JCE.

15             In grounds 2, 3, 5, and 6 he challenges the Trial Chamber's

16     findings with respect to the role of the special police in the

17     destruction and plunder of Gracac, in the destruction of Donji Lapac and

18     for scheduled killing number 10.

19             In ground 8 he challenges the Trial Chamber's findings concerning

20     deportation and forcible displacement.

21             In ground 9 he challenges the Trial Chamber's finding that an

22     international armed conflict existed throughout the indictment period,

23     inter alia.

24             Finally in ground 12, he challenges his sentence.

25             The Prosecution responds that all grounds of Mr. Markac's appeal

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 1     should be dismissed in its addendum to the Scheduling Order for appeal

 2     hearing issued on 24 April 2012.  The Appeals Chamber invited the parties

 3     to discuss with references to the record:

 4             1, whether the Trial Chamber erred in applying a 200-metre range

 5     of error in analysing the lawfulness of artillery shelling.

 6             2, whether the Trial Chamber's conclusions regarding impact sites

 7     should be upheld if its application of the 200-metre range of error is

 8     deemed erroneous.

 9             3, whether the Trial Chamber's finding that illegal artillery

10     attacks took place should be upheld in its conclusions with respect to

11     impact sites are deemed erroneous and/or whether the Trial Chamber's

12     finding that the JCE existed should be upheld if its finding that illegal

13     artillery attacks took place is deemed erroneous.

14             Throughout the hearing counsel may argue the grounds of appeal in

15     any order they consider suitable for their presentations.

16             However, I would urge counsel not to repeat verbatim or to

17     summarise extensively the arguments presented in their briefs.

18             The Appeals Chamber is familiar with these arguments.

19             Furthermore, the parties are obliged to provide precise

20     references to materials supporting their oral arguments.

21             I note that there remains evidence in this case whose admission

22     on appeal has yet to be decided.  I would discourage the parties from

23     referring to these materials.  If such references are made, I ask that

24     the parties clearly indicate that they're referring to materials whose

25     admission has not yet been decided.

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 1             Finally, I reiterate that the appeal process is not a trial

 2     de novo and the parties must refrain from repeating their case as

 3     presented at trial.

 4             Arguments must be limited to alleged errors of law, which

 5     invalidate the Trial Chamber Judgement or alleged errors of fact which

 6     occasion a miscarriage a justice.

 7             As set out in the Scheduling Order, this hearing will proceed as

 8     follows:  First we will hear submissions from counsel for Mr. Gotovina

 9     for one hour, 30 minutes.  After a pause of 15 minutes, the Prosecution

10     will respond for one hour and 30 minutes.  Following another pause of 15

11     minutes, counsel for Mr. Gotovina will have 30 minutes to reply.

12             In the afternoon, starting at 10 minutes past 2.00, we will hear

13     the submissions from the parties of Mr. Markac's appeal, followed by

14     optional personal statements from Mr. Gotovina and Mr. Markac.

15             Parties will present their submissions in a precise, clear and

16     concise manner.  The Judges, of course, may interrupt the parties at any

17     time to ask questions or they may ask questions following each parties

18     'submissions or at the end of the hearing.

19             Having now stated the manner in which we will proceed, I would

20     like to invite counsel for Mr. Gotovina to present his appeal.  And let

21     me remind the parties that we have a very tight schedule, and I would be

22     grateful to the parties if they will adhere to the time allocated to

23     them.

24             So counsel for Mr. Gotovina, please do start.

25             MR. KEHOE:  Thank you, Your Honour.

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 1             Once again, my name is Gregory Kehoe.  I will be presenting the

 2     initial argument on behalf of General Gotovina, basically address two

 3     points, 1 and 2, the questions asked by the Chamber.

 4             I will then turn the floor to my colleague -- floor over to my

 5     colleague, Mr. Misetic, who will discuss questions 3 and 4.

 6             And then, lastly, Mr. Akhavan will finish our presentation with

 7     some brief remarks.

 8             Your Honour, with regard -- before we answer the questions

 9     presented by the Trial Chamber, and -- the Appeals Chamber we will like

10     to give a brief overview of the case and exactly what the Trial Chamber's

11     findings were with regard to the Serb civilians who left the Krajina

12     area.

13             The Trial Chamber concluded, Your Honours, that the Serb

14     civilians left for reasons unrelated to unlawful contact by the HV in all

15     places but the four towns at issue.  Those towns being Knin, Benkovac,

16     Obrovac, and Gracac.  The reasons the Trial Chamber cited for the

17     departure of those civilians in places other than those four towns can be

18     found in paragraphs 1754, 1755, and 1762 of the

19     Trial Chamber's Judgement.  They include information such as information

20     provided by local committees or SVK unit, Army of Serb Krajina units, the

21     departure of others and fears of what would happen when the Croats and

22     the HV arrived, fear of violence commonly associated with armed conflict

23     and general fears of Croatian forces and distrust of Croatian authority.

24     The last reason presented by the Chamber was, in fact, the RSK officials

25     telling habitants to leave on 4 August 1995.

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 1             However, the Trial Chamber found that the reasons for departure

 2     from all other places could not have been a reasonable explanation for

 3     why they left the four towns at issue.  Why?  Because of alleged unlawful

 4     artillery attacks which deliberately targeted civilian areas from which

 5     the Trial Chamber concluded that General Gotovina ordered indiscriminate

 6     attacks on the four towns.  Was this finding of unlawful attacks really

 7     the only reasonable explanation of the evidence?

 8             Let's briefly touch on a few items.  The Trial Chamber had

 9     evidence before it that 95 per cent of all projectiles fired in Knin were

10     deliberately fired at military objectives.  I direct the Chamber to

11     Annex 1 of the Appellant's response to the Prosecution's motion to strike

12     Appellant's reply brief filed with this -- filed with the Appeals Chamber

13     7 October 2011.  The actual final statistics are on page 2.

14             International investigations by the United Nations Military

15     Observers in August 1995, the United States government investigators

16     found that the attacks -- that were highly professional and concentrated

17     on military targets.  No investigation on the ground made any contrary

18     conclusion that would suggest an unlawful attack.  I direct Your Honours

19     to Prosecution Exhibit P64, which is the provisional assessment by the

20     UNMOs, the UN -- the United Nations Military Observers, who after their

21     preliminary assessment or provisional assessment was followed up by a

22     final assessment.  This final assessment proved to be consistent what the

23     provisional assessment has confirmed by Prosecution witness,

24     Alun Roberts, the chief information officer of the UN.  And this

25     confirmation is located at trial transcripts pages 7081 to 7082.

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 1             The United Nations Secretary-General, the

 2     European Community Monitoring Mission and other international leaders

 3     made no mention of an unlawful attack when reporting the events in the

 4     Krajina on 4/5 August 1995.  More importantly, no finding that any

 5     civilian was killed or injured and no Serb civilian has ever been

 6     identified who claimed to have left the Krajina due to the fear of

 7     shelling when the lawful or unlawful --

 8             JUDGE MERON:  Excuse me, counsel, my colleague Judge Robinson --

 9             JUDGE ROBINSON:  I just want to take you back to that part of

10     your statement, that you asked the question whether that was the only

11     reasonable finding that the Trial Chamber could have made.

12             MR. KEHOE:  Yes, Your Honour.

13             JUDGE ROBINSON:  Implying that if there are other reasonable

14     findings, then the Appeals Chamber should find that the Trial Chamber

15     erred.

16             MR. KEHOE:  That's correct, Your Honour.  If there is a

17     reasonable explanation of the evidence consistent with innocence, then

18     the -- the Appeals Chamber should find our clients not guilty and

19     overturn the Judgement of the Trial Chamber.

20             JUDGE ROBINSON:  Even if the finding by the Trial Chamber is

21     reasonable.

22             MR. KEHOE:  The law is, Judge Robinson, that if there is a

23     reasonable explanation of the evidence, in this instances consistent with

24     innocence, then the Appeals Chamber must find our clients not guilty.

25             JUDGE ROBINSON:  But you will direct us to the other evidence.

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 1             MR. KEHOE:  Yes, Your Honour.

 2             JUDGE ROBINSON:  All right.  Thanks.

 3             MR. KEHOE:  We will during the course of our presentation,

 4     Judge Robinson, go through some of those items seriatim which will

 5     actually play into the questions that the Appeals Chamber asked,

 6     questions 1 through 4.

 7             JUDGE MERON:  Thank you, Judge Robinson.

 8             Mr. Kehoe, you may continue now.

 9             MR. KEHOE:  Thank you, Your Honour.

10             As I noted, more importantly no finding that any civilian was

11     killed or injured and no Serb civilian has ever been identified who

12     claimed to have left the Krajina due to fear of shelling, be it lawful or

13     unlawful.

14             Conclusion.  Let us talk about what we can conclude from these

15     matters.  For these reasons and those which we will lay out later, the

16     Trial Chamber acted unreasonably in concluding that the reasons for the

17     departure which the Chamber found in all other areas of the Krajina which

18     were not caused by any alleged unlawful conduct by the Croatian army

19     could not have been a reasonable explanation of the evidence in the four

20     towns at issue here.

21             Your Honours, we welcome the four questions posed by the Chamber

22     which we consider to be at the core of the Trial Judgement, whether there

23     is any sufficient basis other than the arbitrary 200-metre rule that

24     could establish and unlawful attack by HV forces directed against the

25     Serb civilian population.

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 1             I will now turn to the first question that was presented by the

 2     Chamber.

 3             Question 1:  Whether the Trial Chamber erred in applying a

 4     200-metre range of error in analysing the lawfulness of artillery

 5     shelling.  The answer quite simply is yes.

 6             I think it is important before we discuss range of error to

 7     discuss exactly what the Trial Chamber concluded and what they noted the

 8     200-metre rule was.  It simply says that any shell falling within 200

 9     metres of a known military objective will be presumed to have intended to

10     strike that military objective because that would be "a reasonable

11     interpretation of the evidence."

12             Your Honours, this is not a margin of error standard.  There was

13     no establishment of any margin of error standard.  This was simply a

14     rule established by the Trial Chamber.  Had we had expert testimony on

15     the specific margin of error we would have to take many different items

16     into account when going into that margin of error, not the least of which

17     is, for instance, rounds falling outside that margin of error, outliers,

18     and then discussing why, in fact, a round for whatever reason, be it

19     human error, wrong -- improper information, et cetera, would cause a

20     rounds to fall outside that margin of error.  Well, suffice it to say

21     that the 200-metre rule is not a margin of error.

22             Why was this 200-metre rule an erroneous standard by which to

23     analyse the artillery fire?  And how and why did the Trial Chamber err in

24     using this -- this standard?  Well, first and most importantly, the

25     Trial Chamber's first error is in failing to explain why it even needed

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 1     to do an analysis of shell impact locations at all to determine the

 2     intent behind General Gotovina's attack order.  As I noted just briefly

 3     in my earlier comments, the Trial Chamber had evidence before it on the

 4     basis of HV documentation that at least 95 per cent of all rounds fired

 5     were fired with the intent to strike lawful objectives.  This should have

 6     been sufficient in itself for the Chamber to determine that there was a

 7     reasonable explanation of the evidence consistent with the Defence's

 8     assertion that General Gotovina's order was not for an unlawful attack

 9     but, rather, was interpreted and implemented as an order for an unlawful

10     attack -- as a lawful attack.  Excuse me.  This is exactly what chief of

11     artillery, Marko Rajcic, testified.  He testified that he received

12     General Gotovina's order and he implemented it as an order for a lawful

13     attack directed on military objectives.  And his testimony was

14     corroborated by the HV artillery records.  And how about deaths or

15     destruction?  There was no finding by the Chamber of any civilian deaths

16     or injuries in any of the four towns as a result of the shelling.  There

17     was likewise no evidence of extensive destruction of civilian objectives

18     either.  Therefore, it is left unexplained by the Trial Chamber why in

19     view of these conclusive facts it needed to even look at impact sites to

20     determine the intend of General Gotovina's order or, further, why it

21     needed to even devise a methodology, the 200-metre rule, based on

22     measuring the distance between impact sites and known military

23     objectives.

24             That leads into the second error by the Trial Chamber, and that

25     has a -- directed to the 200-metre rule itself.  This 200-metre rule has

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 1     no evidentiary basis in the record whatsoever.  It was never discussed

 2     during trial.  It was never brought up during trial.  It was never a

 3     matter that was briefed during trial.  Nothing.  The Trial Chamber

 4     established its 200-metre rule at the end of a very long analysis of

 5     evidence of margin of error of HV weapon systems.  At paragraph 1898 of

 6     the Trial Chamber's Judgement, by placing the -- this discussion of the

 7     200-metre rule in the context of margin of error suggests that the Trial

 8     Chamber was trying to tie its 200-metre finding to its analysis of margin

 9     of error, but ultimately did not.  If we go back to this discussion in

10     paragraph 1898 where the Trial Chamber wrestles with this margin of error

11     standard, it ultimately could come to no conclusion as to the margin of

12     error.  For instance, the Trial Chamber cited Prosecution witness Konings

13     who testified that for 155 metre shell fired at a distance of 14.5

14     kilometres, the margin of error would be 55 metres in range, plus up to

15     60 metres for each of the four factors cited:  Muzzle velocity, wind

16     speed, air temperature, density.  Those, of course, wouldn't be the only

17     four but those are the four that are listed.

18             Now, first on a foremost, we have to look at the actual weapon

19     that Mr. Konings was talking about.  There was no 155-metre Howitzer

20     cannon used in this particular case.  The particular gun at issue was a

21     T-130.

22             In any event, had the Trial Chamber accepted the Konings test,

23     Konings would have placed the margin of error at up to 295 metres for a

24     155-metre shell fired at a distance of 14 and a half kilometres.  Those

25     are the general comments that were made by Konings with regard to this

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 1     155.

 2             The firing distance in this case for the T-130 was at

 3     26 kilometres.  Clearly at a 26 kilometre any margin of error would have

 4     clearly been grater.  Thus, the Trial Chamber did not rely on Konings's

 5     testimony to establish the 200-metre rule because Konings at a

 6     significantly reduced distance had a margin of error of almost

 7     300 metres.  Ultimately, the Trial Chamber recognised that the

 8     Prosecution had failed to establish beyond a reasonable doubt what the

 9     ranges of error of the HV weapon systems were.  This was a failure of

10     proof by the Prosecution.

11             The Trial Chamber recognised that failure and I direct the

12     Chamber to the screen to footnote 932 on page 965 of the Trial Judgement

13     where the Chamber noted as follows - thank you - the Trial Chamber had

14     noted that:

15             "Had these impacts which were at a distance of up to 700 metres

16     from artillery attacks been the result of the inaccuracy of the artillery

17     weapons used, that would require further consideration of whether such

18     inaccurate weaponry can be used in the context of an artillery attack on

19     specific targets within a town."

20             Clearly this finding demonstrates that the Trial Chamber did not

21     know what the margin of errors were for the HV weapon systems.

22             At this point, because there was a failure of proof by the

23     Prosecution as to the margin of error, the Trial Chamber should have

24     found that the Prosecution had failed, simply failed, to meet its burden

25     of proof.  Instead, the Trial Chamber decided to simply ignore the issue

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 1     of the proper range of error in establishing its 200-metre rule.  This is

 2     quite clear.  As I just noted for Your Honours, footnote 932, the Chamber

 3     admits that it did not know the proper margin of error.  Let's turn our

 4     attention to paragraph 1906 of the Trial Chamber's Judgement which,

 5     likewise, is now on the screen.  And it begins at the bottom of the page

 6     and then carries over where the Trial Chamber notes:

 7             "In conclusion, the Trial Chamber finds that too many projectiles

 8     impacted in areas which were too far away from identified artillery

 9     targets and which were located around Knin for the artillery projectiles

10     to have impacted in these areas incidentally as a result of errors or

11     inaccuracies in the HV artillery fire."

12             Clearly, Your Honours, if the Trial Chamber believed that the

13     margin of error had been established as less than 200 metres, it would

14     have simply stated that as a basis for excluding the possibility of the

15     shells landing more than 200 metres away.

16             Is there some special significance to this 200-metre rule?  We

17     can search the record, Your Honours.  The Trial Chamber never explained

18     why the 200 metres had any specific significance.  There 's no evidence

19     in the record to justify the selection of 200 metres as a standard.

20     Accordingly, it thus appears that the Trial Chamber chose this 200-metre

21     standard arbitrarily.

22             Finally, it appears that the parties, including the Prosecution,

23     now agree that the 200-metre margin of error, to the extent that it is a

24     margin of error, is overly narrow.  Clearly the Trial Chamber erred in

25     establishing the 200-metre rule.  It could not account for the proper

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 1     margin of error.

 2             The third reason why this was an error by the Trial Chamber,

 3     Your Honours, is this:  There was no notice of this standard given to the

 4     accused.  Appellant's grounds of appeal 1.1.3. notes that the Chamber's

 5     adoption of a 200-metre radius around military objectives was an

 6     assertion, as I noted previously, that was never discussed at trial.

 7             So, as we direct our attention to this first question,

 8     Your Honours, whether the Trial Chamber erred in applying a 200-metre

 9     range of error in analysing the lawfulness of artillery shelling, given

10     that the evidence demonstrated that fire was concentrated on military

11     targets, given that the 200-metre rule has no relation to margin of

12     error, given that the 200-metre rule is clearly an arbitrary standard not

13     discussed at trial for which no notice was given, on behalf of

14     General Gotovina, we submit that the Trial Chamber did in fact err in

15     establishing this 200-metre rule as a basis upon which to render a

16     decision.

17             Let us now turn to question 2.

18             Whether the Trial Chamber's conclusions regarding impact sites

19     should be upheld if its application of the 200-metre range of error is

20     deemed erroneous.  Clearly the answer is no.  And let us go through the

21     analysis step by step.

22             If the 200-metre rule is deemed erroneous, then the

23     Trial Chamber's conclusions concerning impact sites must also be

24     reversed.  The Trial Chamber drew several unreasonable inferences which

25     all rest on the erroneous application of the 200-metre rule.

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 1             First, the Trial Chamber used its 200-metre rule to establish the

 2     civilian character of "civilian areas in which it said certain shells

 3     fell."

 4             The jurisprudence of this Chamber is clear.  That the Prosecution

 5     in a criminal case bears the burden of establishing beyond a reasonable

 6     doubt that "an object was indeed dedicate to civilian purposes."  And I

 7     cite to Your Honours the Blaskic Appeals Judgement paragraphs 111 and

 8     145.

 9             Here, Your Honours, the Prosecution failed to introduce any

10     evidence of the presence of civilians or civilian objects in any of the

11     Chamber's so-called civilian areas and failed to introduce any evidence

12     to establish that any of the Chamber's civilian areas were, in fact, per

13     Blaskic, dedicated to civilian purposes.  In fact, the Prosecution could

14     not establish that any civilians had been killed or injured by shells and

15     very few civilian objects were hit by shells in the four towns combined.

16     Finally, in violation of the Blaskic standard the Trial Chamber itself

17     failed to make findings that any of these civilian areas were in fact

18     dedicated to civilian purposes.

19             Your Honours must think, Well, how did this happen?  Why was

20     there no evidence of this?  The reason the Prosecution failed to

21     establish the civilian character of particular objects or areas is

22     because the Prosecution's case was that there were "few, or in almost all

23     cases, no identifiable military targets."

24             That was the Prosecution's case as we move into trial, and I cite

25     for Your Honours the Prosecution's pre-trial brief at paragraph 31.  The

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 1     Prosecution's case was that the HV fire on the town was per se

 2     unlawful -- excuse me, was a per se unlawful attack against civilians

 3     because there were no military objectives in the towns.  Accordingly,

 4     once the Trial Chamber found that the Defence had, indeed, established

 5     the existence of many military objectives, the Trial Chamber should have

 6     found that the Prosecution had simply failed to prove its case.  Instead

 7     they did something very different.

 8             Instead, the Trial Chamber altered the Prosecution's case to the

 9     Prosecution's benefit.  Where the Prosecution had failed to introduce any

10     evidence to prove the civilian nature of specific objects or areas in

11     Knin, frankly because it took the position that the entire town was a

12     civilian zone due to the alleged absence of military objectives, the

13     Trial Chamber proceeded to use its 200-metre rule to do two things.  It

14     chose to arbitrarily treat all areas outside 200 metres of known HV

15     military -- artillery targets as being civilian in character.  What did

16     this do?  First and foremost, it circumvented the need under Articles 51

17     and 52 of protocol 1 to establish that civilian or civilian objects were

18     attacked.  Instead the Trial Chamber invented the concept of civilian

19     areas, I quote, "by which the Chamber created zones of presumed civilian

20     character."

21             What was the net effect of this decision?  The net effect was

22     that the Trial Chamber created a presumption of criminal intent for all

23     shells falling in a civilian area without regard to whether the civilian

24     or civilian object was actually targeted.

25             The Trial Chamber thus used the 200-metre rule to fill in huge

Page 30

 1     gaps in the Prosecution's case as pleaded and tried and had already been

 2     rebutted by the Defence.  That rebuttal is that there were many military

 3     objectives in the four towns.

 4             As a result, the Trial Chamber afforded civilian status to any

 5     area more than 200 metres from a known military objective.  And let us

 6     just talk about some of those now described military areas -- excuse me,

 7     civilian areas; for example, the cross-roads in Obrovac was found to be a

 8     civilian area merely because it was more than 200 metres from a known

 9     military objective.

10             The railway fuel storage in Knin was found to be a civilian area

11     even though the railway station itself was found to be a legitimate

12     military objective strictly because it was too far away from a known

13     military objective.  Whether -- per Blaskic, whether the railway fuel

14     storage was actually dedicated to civilian purposes as required by

15     Blaskic is a question that the Trial Chamber didn't even try to answer.

16     Why?  Because the Prosecution had failed to introduce any evidence on

17     that point.

18             Let us visualise this a little bit more specifically and examine

19     how this -- this reversed the burden of proof.  We can go up on Sanction

20     on the screen for one moment.  Map A.

21             This would be Map A in the -- in the maps that you have.

22             If we look at this, this is the practical application of the

23     Trial Chamber's Judgement.  And this is a 200-metre radius around

24     military targets as identified by the Trial Chamber.  And unilaterally,

25     anything that landed within this area was presumed to be directed on a

Page 31

 1     military target, and anything that landed outside this area landed in

 2     this so-called civilian area, and, thus, was presumed to be improper.

 3     That was a conclusion reached with no actual evidence of what was outside

 4     these 200 -- this 200-metre radius as set forth in Map A and without any

 5     evidence that the particular areas that were then designated as civilian

 6     areas were in fact dedicated to civilian purposes per Blaskic.

 7             What was the net effect of this?  Well, first, this -- as you can

 8     see, it doesn't establish or doesn't satisfy the Prosecution's burden of

 9     proof.  As I just noted, the Prosecution had to establish that any object

10     struck by a shell was dedicated to civilian purposes.  Again, the

11     Trial Chamber made no finding that these areas were dedicated to civilian

12     purposes and could not do so in the absence of any evidence advanced by

13     the Prosecution.  But more importantly, the 200-metre rule was used to

14     reverse the burden of proof.  It required the accused to bring forward

15     evidence of military objectives near impact areas.  If the accused failed

16     to bring forward evidence of such military objectives, then the

17     Trial Chamber applied the 200 metre standard to establish the civilian

18     character of its civilian areas even where no evidence was submitted by

19     the Prosecution to identify whether civilians or objects dedicated to

20     civilian purposes were, in fact, present in these areas.

21             At this point, Your Honour, we would like to take this a little

22     bit more closely and examine one of the examples advanced by the

23     Trial Chamber and how it was actually employed in this Judgement.  And I

24     direct your attentions -- of the Chamber to a map on the screen that

25     we're going to be talking about an impact area that was discussed in

Page 32

 1     paragraph 1904 of the Judgement.

 2             Before we do that, if I can just take the Chamber through this

 3     particular map, the area at question is the area in front of the UN

 4     headquarters.  If can you see the area circled in yellow, there are three

 5     circles in that area.  There's a field in front of the headquarters.

 6     Those impact areas were identified by Prosecution witnesses Dijkstra,

 7     Berikoff and Williams during trial.  The red are military targets that

 8     were fired upon by the HV per Marko Rajcic.  What we have in 25 and 26

 9     are two military targets that in fact Mr. Rajcic said they did not fire

10     upon.  Using this map -- mis -- classic example and this is the use of

11     the 200-metre rule, the Trial Chamber analysed the three shells falling

12     into the empty field in front of the UN barracks and found that the field

13     was more than 200 metres from a known HV target but less than 200 metres

14     from other military targets -- objective, excuse me.  The Chamber found

15     that because there was no evidence that the HV fired upon these military

16     facilities within 200 metres of the empty field, the field was civilian.

17     Again, this is on 1904.  My colleague reminded me this is on 1904 of the

18     Judgement.

19             It appears that the Trial Chamber found if the HV had targeted

20     these additional military facilities closer to the 200 metres to the

21     field, it would have found the field to have been of military character.

22             Let us direct ourselves a little bit more specifically and go to

23     the next map, which is Map 4.  This is directed towards a 25 -- which is

24     the Ante monastery but was in fact a headquarters of the special police

25     for the ARSK.  And this was a target that was not fired upon by the HV

Page 33

 1     per Marko Rajcic.  However, in analysing this, had the HV decided to fire

 2     on this particular objective at 25, we can see from the calculation be it

 3     at 200 metres or 400 metres, at virtually half of this field would

 4     immediately be transformed into a place where any -- any round landing in

 5     that would not have been improper.  So you have the rather incongruous

 6     conclusion as a result of this decision made by HV where half this field,

 7     any rounds following in half this field were proper and any rounds

 8     falling outside either 200 or 400 metres fell in civilian areas and were

 9     thus improper.

10             If we go back to the next slide which shows it again coming from

11     the other direction, in paragraph -- in number 7, this is -- 26 is

12     another HV facility -- excuse me, I'm sorry, RSK facility.  It is their

13     barracks which is just adjacent to the UN building.  If you can see 26

14     where the RSK barracks are, just south of that on this photograph is the

15     UN facility.  Again, this was not fired upon by the HV per Marko Rajcic.

16             As a practical matter, however, had the HV fired upon number 26,

17     the RSK southern barracks, what do we have once again?  We have once

18     again the transformation of this field as a proper place upon which

19     rounds could -- rounds could land and there would be no negative criminal

20     consequences.

21             We can expand this out yet further and turn this to

22     paragraph 17 -- excuse me, Map 17.  And before we get to that, we can

23     note that paragraph 1904 demonstrates how the civilian status of a

24     particular object or area depended exclusively on whether it was in the

25     200 metres of a military objective actually targeted.  Moreover, it is

Page 34

 1     important to note that the 200-metre rule is not based on any margin of

 2     error.  We have included this 200-metre standard here because presumably

 3     if the margin of error had been established as 400 metres per

 4     Andrew Leslie, a Prosecution witness and a Canadian officer, it would

 5     have created a 400 metre-rule.  This, the civilian status of areas and

 6     objects under the Trial Chamber's methodology depends on either the

 7     200-metre rule or the margin of error of the weapon systems firing near

 8     the locations.

 9             Now look at the -- the Map 17 that's on the screen.  This is the

10     practical application of what the Trial Chamber did.  What we have done

11     is put circles on there for 200-metre radius and circles around the

12     targets for a 400-metre radius, and again, depending on what the HV

13     targeted or didn't target, transformed this field into what could have

14     been a civilian area or could have been completely proper because it was

15     under 200 or 400 metres of a military objective.

16             This completely puts aside any analysis as required by Blaskic

17     that these particular areas are dedicated to civilian purposes.

18     Obviously when we analyse a chart such as this, this is an absurd result

19     because it tells us nothing about whether the object was dedicated to

20     civilian purposes.  But, frankly, Your Honours, this is the nature of the

21     methodology employed by the Trial Chamber.  Accordingly before I turn

22     my -- this matter over to Mr. Misetic, let us conclude with regard to

23     question 2, again, whether the Trial Chamber's conclusions regarding the

24     impact sites should be upheld if its application of the 200-metre range

25     of error is deemed erroneous.  Clearly, it should not.  Civilian areas

Page 35

 1     based on impacts alone and not whether the area was dedicated to civilian

 2     purposes, improper.  The reversal of the burden of proof by the

 3     Trial Chamber, clearly improper.  Any decision whether an area was

 4     civilian based on an arbitrary 200-metre standard as opposed to the

 5     character itself was clearly improper.

 6             For all the reasons set fourth above, the Trial Chamber's

 7     conclusions regarding impact sites should not be upheld and should be

 8     reversed in its application -- even if its application of the 200-metre

 9     range of error is erroneous.

10             At this juncture, Your Honours, I would like to turn the floor

11     over to my colleague, Mr. Misetic.

12             JUDGE MERON:  Counsel, could I just ask you a question before

13     your colleague takes over.

14             You say something about the question whether the Trial Chamber

15     erred in discounting the possibility of targets of opportunity given the

16     determination by the Trial Chamber that the evidence did not establish

17     whether Croatian forces had the ability to monitor areas where

18     roadblocks, police and military vehicles were present in the relevant

19     towns.

20             So my question pertains to targets of opportunity.

21             MR. KEHOE:  Well, there was, in fact, evidence presented that

22     there was the capability to examine targets of opportunity.  Clearly on

23     the 5th as they moved into town, there was more than enough time to hit

24     targets of opportunity and to examine targets of opportunity.  So the

25     premise that there was no ability to see impact sites was simply improper

Page 36

 1     and I believe that the citations set forth in our brief established that.

 2             JUDGE MERON:  Thank you.

 3             MR. MISETIC:  Mr. President --

 4             JUDGE MERON:  Please proceed.

 5             MR. MISETIC:  -- distinguished members of the Appeals Chamber,

 6     good morning.  My name is Luka Misetic.  I will be addressing questions 3

 7     and 4.

 8             Mr. President, first if I could just supplement my colleague's

 9     response to your last question.  We would also draw the Chamber's

10     attention to the fact that witnesses Leslie, and I believe Dawes,

11     testified that the HV -- that they witnessed bracketing fire in Knin on

12     the 4th, and from that they drew the conclusion that the HV could in fact

13     observe Knin because bracketing fire requires the ability to observe what

14     your fire is doing.  I don't have the citations with me but I know we

15     have cited that in our briefs, Mr. President.

16             Mr. President and Your Honours, I will be addressing questions 3

17     and 4.

18             Question 3 from the Appeals Chamber is:  Whether the

19     Trial Chamber's finding that illegal artillery attacks took place should

20     be upheld if its conclusions with respect to impact sites are deemed

21     erroneous.

22             The simple answer obviously is no.  The finding of illegal

23     artillery attack cannot be sustained if the conclusions with respect to

24     impact sites are deemed erroneous because the 200-metre rule was the

25     necessary precondition to each of the inferences drawn by the

Page 37

 1     Trial Chamber to establish the alleged illegality of the shelling.

 2             The Trial Chamber concluded that the shelling operation was

 3     unlawful based on the following inferences.  All but one of which are

 4     derived from the Trial Chamber's erroneous 200-metre rule and its

 5     subsequent erroneous conclusions about "shells falling in civilian areas"

 6     described by my colleague, Mr. Kehoe.

 7             The six erroneous inferences drawn are as follows:  First, that

 8     the HV deliberately fired artillery projectiles at areas devoid of

 9     military targets, i.e., civilian areas; 2, that projectiles could not

10     have landed in the civilian areas as a result of errors or inaccuracies

11     in the HV's artillery fire; 3, that General Gotovina's artillery order

12     was an illegal order to treat whole towns as targets; 4, that reports of

13     HV artillery units indicated that whole towns were treated as targets; 5,

14     that the general impression of eye-witnesses was that "the shelling

15     impacted all over Knin and was indiscriminate"; and, 6, there was a

16     disproportionate attack against Milan Martic.

17             All but one of these inferences are derived from the 200-metre

18     rule.  If the 200-metre rule was erroneous, then the findings just cited

19     must also be reversed because they rest on the Trial Chamber's erroneous

20     conclusion that shells impacted in civilian areas.

21             With respect to the first inference, the Trial Chamber's

22     conclusion that the HV deliberately targeted civilian areas is based on

23     its conclusions that projectiles had landed in civilian areas.  And

24     that's at Trial Judgement paragraph 1911.  However, as just explained,

25     without the 200-metre rule the Prosecution failed to prove that any of

Page 38

 1     these areas in the four towns were "civilian areas," and therefore there

 2     was no evidence that the HV deliberately targeted civilian areas.

 3     Therefore, there can be no inference of unlawful intent drawn from a

 4     projectile falling in any particular place in Knin, Benkovac, Obrovac, or

 5     Gracac.

 6             Second, the Trial Chamber erred in concluding that shells could

 7     not have impacted more than 200 metres from a military objective due to

 8     the margin of error of the weapon systems.  Because the Trial Chamber

 9     erred in establishing a 200-metre rule, it erroneously excluded margin of

10     error as a basis for reasonable doubt explaining why shells fell more

11     than 200 metres from military objectives.  This finding is at

12     paragraph 1906, which, again, will be up on your screen and was shown to

13     you previously.  It says:

14             "In conclusion, the Trial Chamber finds that too many projectiles

15     impacted in areas which were too far away from identified artillery

16     targets and which were located around Knin, for the artillery projectiles

17     to have impacted in these areas incidentally as a result of errors or

18     inaccuracies in the HV's artillery fire.  Thus, the Trial Chamber finds

19     that the HV deliberately fired the artillery projectiles targeting these

20     areas in Knin."

21             For Benkovac, Obrovac and Gracac, it is the same finding, except

22     without relying on a finding of too many shells falling.

23             Had the Trial Chamber not made this error, it would have had to

24     conclude that because it did not have sufficient evidence of the margin

25     of error, it could not exclude the reasonable possibility that shells

Page 39

 1     fell more than 200 metres from military objectives due to the unknown

 2     margin of error.  Alternatively, had the Trial Chamber accepted Leslie's

 3     400-metre standard as the margin of error it would have concluded that

 4     only 13 of 1200 projectiles fired, or 1 per cent, fell beyond the margin

 5     of error of the HV weapons systems.  And we have this on a chart in front

 6     of you, Your Honours, on the screen in front of you.  We have broken down

 7     the Trial Chamber's findings by the four towns and you have in the four

 8     towns exactly five incidents for a total of 13 total projectiles that

 9     fell beyond 400 metres, beyond what Leslie said was the HV margin of

10     error.

11             In Knin, if we focus on Knin, the Trial Chamber found 5 out of

12     900 rounds fell beyond what Leslie said was the margin of error.  That

13     means that .05 per cent of the shells of the projectiles that were fired

14     in Knin fell outside the margin of error.

15             Your Honours, we submit that 99.5 of projectiles falling

16     within -- within the range of error of HV weapons systems is powerful

17     evidence that General Gotovina's orders were in fact interpreted and

18     implemented to mean that military objectives should be targeted.

19     Moreover, this finding of five projectiles is remarkably consistent with

20     the subsequent investigation of the shelling of Knin conducted by the

21     United Nations military observers, and that is, again, at

22     Trial Exhibit -- Prosecution Exhibit P64.  The United Nations Military

23     Observers found that only three to five shells were found or were

24     observed outside the immediate vicinity of military objectives.

25             In other words, the Trial Chamber's own findings are consistent

Page 40

 1     with the conclusions of the United Nations military observers whose

 2     conclusion was that there was no evidence of an unlawful artillery

 3     attack.  Had the Trial Chamber used these numbers or applied a 400-metre

 4     margin of error it could not have reasonably concluded that the only

 5     explanation of the evidence is that the HV was shelling towns

 6     indiscriminately.  We note however that even with the statistics as they

 7     were before the Trial Chamber, i.e., that only 5 per cent of all rounds

 8     fell beyond 200 metres, this was sufficient to demonstrate that whole

 9     towns were not treated as targets.

10             The third inference of the Trial Chamber is, in fact, that

11     General Gotovina's artillery order was unlawful but this inference cannot

12     be sustained if the 200-metre rule is overturned.  The following must be

13     noted:  Marko Rajcic was General Gotovina's chief of artillery and, as

14     such, was the person who both interpreted and implemented

15     General Gotovina's order.  He was the Prosecution's witness, not the

16     Defence's.  And he was the only witness with personal knowledge who

17     testified about how General Gotovina's orders was implemented and

18     interpreted.  Marko Rajcic testified explicitly that General Gotovina's

19     order was interpreted as an order only to strike only lawful military

20     objectives.  This testimony was powerfully corroborated by the evidence

21     before the Trial Chamber that 95 per cent of all rounds fired were fired

22     at military objectives.  Rajcic's testimony was also corroborated by the

23     subsequent investigations of the shelling of Knin conducted by, amongst

24     others, the UNMO investigators and the United State's investigators who

25     did not conclude that there was an unlawful artillery attack.  Again,

Page 41

 1     that is trial exhibit P64.

 2             Accordingly, even with the 200-metre rule Rajcic's explanation of

 3     Gotovina's order was confirmed by other corroborating evidence in the

 4     record.  Yet the Trial Chamber ultimately concluded that Gotovina's order

 5     was unlawful.  It first stated at paragraph 1893 of the Trial Judgement

 6     that it would assess the legality of Gotovina's order based on whether it

 7     found Rajcic's testimony to be credible.  The Trial Chamber then

 8     proceeded to apply its invented 200-metre rule to conclude that Rajcic's

 9     explanation could not possibly be credible because - and this is at

10     Trial Judgement paragraph 1911:

11             "The Trial Chamber considers that the deliberate firing at areas

12     in Knin which are devoid of military targets, i.e., civilian areas, is

13     inconsistent with Rajcic's explanation of the HV artillery orders.

14     Instead, it is consistent with the plain text of those orders to put

15     towns under artillery fire, meaning to treat whole towns, including Knin,

16     as targets."

17             In other words, the Trial Chamber used its conclusion that

18     5 per cent of projectiles fell in civilian areas to disregards Rajcic's

19     evidence and to conclude that Gotovina issued an illegal order.  If the

20     Chamber were wrong in its conclusions about the civilian character of

21     these "civilian areas," and therefore wrong to conclude that the HV

22     "deliberately targeted civilian areas" then the Trial Chamber had no

23     basis to discount Rajcic's corroborated testimony.  Even with the

24     200-metre rule, the fact that the implementation of General Gotovina's

25     order resulted in at least 95 per cent of all rounds fired at military

Page 42

 1     objectives was more than sufficient to establish that General Gotovina's

 2     order was lawful and interpreted by his subordinates as such.

 3             Without the 200-metre rule and thus without the finding that the

 4     HV deliberately targeted civilian areas, Rajcic's testimony is

 5     unassailable.

 6             Next we turn to the inference about HV artillery reports.

 7             Without the 200-metre margin of error the reports of HV artillery

 8     units do not prove that whole towns were treated as targets.  From

 9     contemporaneous reports at HV artillery units, the Trial Chamber had

10     evidence before it that at least 95 per cent of all projectiles were

11     fired at military objectives per General Gotovina's order.  At

12     paragraphs 1895 and 1896, the Trial Chamber noted that there were some

13     entries in HV reports which might be interpreted as evidence that whole

14     towns were treated as targets.  The Trial Chamber also found, however,

15     that these entries were oftentimes a coded account of the targets fired

16     at and may have been the result of "lack of details, errors, or other

17     inaccuracies in the reports."

18             In order to determine whether these entries were evidence of

19     indiscriminate attack or simply inaccuracies in the reports, Trial

20     Chamber said that it:

21             "... will further evaluate these reports in light of the findings

22     on the locations of impacts in Knin."

23             Again, that's Trial Judgement paragraphs 1895 and 1896.  Thus,

24     because the Trial Chamber's conclusions based on the impact areas were

25     wrong as a result of the mistaken 200-metre rule, the innocent

Page 43

 1     interpretations of HV reports also cannot be concluded as reasonable

 2     explanations of the evidence.  Even the Trial Chamber stated as much.

 3             Without the 200-metre margin of error, the general impression of

 4     eye-witnesses that the "shelling impacted all over Knin" is actually

 5     consistent with the Chamber's finds that the HV lawfully targeted

 6     military objectives in Knin.  The Trial Chamber relied on the testimony

 7     of witnesses in Knin who said that "the shelling was all over Knin and

 8     was indiscriminate."

 9             That's at Trial Judgement paragraph 1911.  However, we'd like to

10     put back on the screen which are Maps A and B, which the -- Your Honours,

11     you have already had distributed to you.  This is, again, the map with

12     the military objectives in Knin and the 200-metre circles around it.  Now

13     the witnesses -- many of the witnesses, indeed most of the witnesses,

14     relied on were in the extreme right portion of this map, in the UN

15     compound.  The Trial Chamber found that any shells landing in these areas

16     were presumed to have been intended to strike military objectives.  Now,

17     if a shell landed in these areas, it would both be lawfully fired and

18     from the perspective of witnesses on the grounds, be perceived as falling

19     all over Knin.  Indeed, that is because military objectives were all over

20     Knin.

21             The Trial Chamber had evidence that at least 850 projectiles

22     landed in these areas.  Had the Trial Chamber assumed Leslie's 400-metre

23     margin of error - if we can move to the next line, please - the circles

24     become even larger.  This is where shells would have impacted in Knin

25     which the Trial Chamber would have considered lawfully fired because they

Page 44

 1     fell within the margin of error of HV weapons systems.  The witnesses'

 2     perception that the shells were falling all over Knin is consistent with

 3     the fact that legitimate military objectives were targeted all over Knin.

 4     The UN Military Observer's conclusion that the artillery fire was

 5     concentrated against military objectives also confirms this.

 6             Eye-witness testimony is thus of little significance,

 7     particularly - and we emphasise - that there is not a single witness in

 8     this case who was aware of every military target in Knin.  And therefore

 9     what basis they would have as to whether a shell could or should be

10     falling in a particular part of Knin is unexplained.

11             Finally, with respect to the alleged disproportionate attack on

12     Martic.  Although this finding would not be impacted by overturning the

13     Trial Chamber's finding on the 200-metre rule for reasons explained more

14     fully in the Appellant's brief, the Trial Chamber erred in concluding

15     that the attack on Martic was disproportionate.  There was no evidence of

16     the presence of any civilians at his residence and no evidence whatsoever

17     that Gotovina had "knowledge of circumstances giving rise to the

18     expectation of excessive civilian casualties."

19             There is no evidence of any harm to any civilians as a result of

20     the targeting of Martic.  Martic as the Commander-in-Chief of SVK forces

21     was prepares the highest value military objective possible.  Moreover,

22     the Trial Chamber did not conclude that the alleged disproportionate

23     attack was evidence of a direct attack against civilians, meaning that

24     the Trial Chamber did not say that the real object of this attack was not

25     Martic but the civilians around Martic.  Instead, it concluded this was

Page 45

 1     evidence of a general disregard for civilian safety, but the

 2     Trial Chamber did not call into question that Martic was indeed the

 3     intended objective of this attack.  Accordingly, the Martic incident does

 4     not on its own provide evidence of an attack to target the civilian

 5     population.

 6             Thus, all but one of the factors that the Trial Chamber

 7     considered in arriving at its conclusions rest on the 200-metre rule and

 8     the incorrect inferences drawn from impact locations.  The Chamber's

 9     finding of indiscriminate attack must fail.  If there is no proof beyond

10     a reasonable doubt that shells impacted in civilian areas there is no

11     evidence of any unlawful attack.  Even if there were proof of impacts in

12     civilian areas there is no proof that this was not the result of errors

13     or inaccuracies in the HV weapons systems, i.e., the margin of error,

14     human error, or intelligence errors.  Indeed without the 200-metre rule,

15     the Trial Chamber could have establish that:  1, Gotovina ordered that

16     previously identified military objectives be targeted with artillery in

17     the four towns; 2, of the 900 rounds of artillery fired in Knin, at least

18     850 were demonstrably fired with the intent to strike military

19     objectives; 3, in Knin only five rounds out of 900 fell beyond the

20     400-metre margin of error established by Leslie for HV weapons systems;

21     4, no civilians were killed or injured in the shelling in the four towns;

22     5, the damage to civilian structures was minimal and confined to the

23     vicinity of military objectives; 6, there is no evidence that any

24     civilian was targeted by artillery fire; and, 7, there is no evidence

25     that any civilian structure was targeted by artillery fire.

Page 46

 1             Given all of these factors, let us turn our attention to whether

 2     there is any evidence of an actus reus or mens rea of the crime of

 3     unlawful attack.  There is no unlawful attack, first, because there is no

 4     proof of an actus reus.  There is no evidence that civilians were made

 5     the object of the attack, no evidence that the HV artillery fire was of

 6     such nature to strike military objectives and civilians or civilian

 7     objects without distinction, and no evidence that the HV used inherently

 8     indiscriminate weapons during the artillery operation.  Therefore, the

 9     actus reus of unlawful attack does not exist without the 200-metre rule.

10             Second, the Trial Chamber conclusion that there was the relevant

11     mens rea to commit an unlawful attack as the crime of persecution as a

12     crime against humanity must also fail.  The Chamber expressly found that

13     its conclusions about the existence of such unlawful intent was based

14     upon, 1, the language of HV artillery orders, and, 2, the inference that

15     these orders were unlawful based on the deliberate shelling of areas

16     devoid of military targets.  That's at Trial Judgement paragraph 1912.

17     Because both of these rest on the erroneous 200-metre finding, the

18     finding concerning intent to commit unlawful attack must also be

19     reversed.

20             Your Honours, I will now turn to question 4 posed by the

21     Appeals Chamber.

22             JUDGE MERON:  Judge Robinson.

23             JUDGE ROBINSON:  You say that 95 per cent of the projectiles,

24     there was evidence that 95 per cent of the projectiles were aimed at

25     military targets.

Page 47

 1             MR. MISETIC:  Yes.

 2             JUDGE ROBINSON:  Does that mean that you accept that there was

 3     evidence that 5 per cent --

 4             MR. MISETIC:  No, Your Honour.

 5             JUDGE ROBINSON:  -- was aimed at civilian targets?

 6             MR. MISETIC:  That is the remaining shells that I discussed in

 7     terms of the ambiguity in HV military artillery reports.  We do not

 8     accept that.  And, as a matter of fact, the Trial Chamber itself, as I

 9     discussed, said that those entries are ambiguous and would be evaluated

10     in light of its findings on the locations of impact areas.

11             JUDGE ROBINSON:  So they don't help at all in relation to

12     establishing indiscriminate attack.

13             MR. MISETIC:  In answers to the Appeals Chamber's questions and

14     now yours, if you overturn, in questions 1 and 2, the findings of the

15     200-metre rule and the subsequent inferences drawn about impact

16     locations, then the Trial Chamber itself said that it was going to only

17     draw criminal intent from those entries based on where it found shells to

18     have back impacted.  So if those conclusions about impact areas are

19     wrong, then the Trial Chamber itself said explicitly, I believe in

20     paragraph 1895 and 1896 of the Trial Judgement, that the Trial Chamber

21     said that these entries could have been the result of lack of details,

22     errors, or other inaccuracy in the reports, but then said it would

23     evaluate whether they were in fact the result of such errors on the basis

24     of its findings on the location of impacts on Knin.

25             So we would argue, Your Honours that those remaining 5 per cent

Page 48

 1     in fact were directed at military objectives and that the only question

 2     about them has been resolved and that there is a basis to conclude that

 3     they were in fact simply coded language and language -- they were poor

 4     record-keeping which the Chamber itself found.

 5             JUDGE ROBINSON:  Thanks.

 6             JUDGE MERON:  Please proceed.

 7             MR. MISETIC:  Thank you, Mr.  President.

 8             Question 4 from the Appeals Chamber asks:  Whether the

 9     Trial Chamber's finding that a joint criminal enterprise existed should

10     be upheld if its finding that illegal artillery attacks took place is

11     deemed erroneous.

12             The answer is no.  Without an illegal artillery attack, the

13     necessary precondition for the existence of a JCE namely, the "commission

14     of a crime provided for under the Statute" does not exist.  There is no

15     commission if there is no unlawful attack.

16             The Trial Chamber at paragraph 2314 of the Trial Judgement

17     defined the common criminal purpose of the alleged JCE.  It said that the

18     common criminal purpose -- excuse me, that the members of the Croatian

19     political and military leadership shared the common objectives of the

20     permanent removal of the Serb civilian population from the Krajina by

21     force or threat of force which amounted to and involved persecution

22     through the crimes of deportation, forcible transfer, unlawful attacks

23     against civilians and civilian objects and discriminatory and restrictive

24     measures, as well as the crimes of deportation and forcible transfer.

25             The purpose of the joint criminal enterprise required that the

Page 49

 1     number of Serbs remaining in the Krajina be reduced to a minimum but not

 2     that the Serb civilian population be removed in its entirety.

 3     Accordingly, the Trial Chamber found that the common criminal purpose was

 4     the permanent removal of the Serb civilian population but not that the

 5     Serb civilian population be removed in its entirety.  A few

 6     paragraphs earlier the Trial Chamber found that this common criminal

 7     purpose was to be achieved through an unlawful artillery attack.  This is

 8     paragraph 2311, via Sanction.  It says:

 9             "The minutes of the Brioni meeting show that the participants

10     were aware of the difficulty situation for the Krajina Serbs, in

11     particular in Knin, and that they knew that it would not require much

12     effort to force them out.  Under these circumstances, members of the

13     Croatian political and military leadership took the decision to treat

14     whole towns as target for the initial artillery attack.  Deportation of

15     the Krajina Serb population was, to a large extent, achieved through the

16     unlawful attacks against civilians and civilian objects in Knin,

17     Benkovac, Obrovac, and Gracac, which the Trial Chamber has found were

18     carried out on discriminatory grounds."

19             At paragraph 2321 of the Judgement, the Trial Chamber also made

20     clear what was not in the common criminal purpose.  It said:

21             "The Trial Chamber finds that the common objective did not amount

22     to, or involve, the commission of the crimes of persecution, through

23     disappearances, wanton destruction, plunder, murder, inhumane acts, cruel

24     treatment and unlawful detentions.  And also did not involve the crimes

25     the destruction, plunder, murder and inhumane and cruel treatment."

Page 50

 1             Accordingly, the Trial Chamber found that the common criminal

 2     objective did not involve deporting Krajina Serb civilians through crimes

 3     such as murder, destruction, plunder, inhumane acts and cruel treatment.

 4     Instead, the Trial Chamber found a common criminal purpose of deporting

 5     Krajina Serb civilians through an unlawful shelling attack on the four

 6     towns and then imposing discriminatory measure to prevent these civilians

 7     from returning.

 8             Accordingly, if the Appeals Chamber were to rule that the

 9     Trial Chamber erred in concluding that there were unlawful shelling

10     attacks on the four towns for the reasons we have previously addressed

11     this morning, then there would be no actus reus left that could be used

12     to support the claim that any intent to deport the Krajina Serb

13     population was actually implemented.  In short, the 200-metre margin of

14     error and the resulting erroneous finding of unlawful attack, without

15     that, the Trial Chamber could not have identified any actual cause of

16     departure of Krajina Serbs from the four towns.  Just as importantly, it

17     would not have had any basis to differentiate between the causes of

18     departure of the Krajina Serb civilians from the rest of the Krajina

19     which the Chamber found in paragraph 1754, 1755 and 1762 were not caused

20     by any unlawful conduct by the HV and the causes of the departure from

21     the four towns.  It should be emphasised, however, that without the

22     finding of actual unlawful attacks the Trial Chamber would not have

23     established any criminal mens rea to deport the Krajina Serb population

24     and thus would not have been able to establish the existence of any

25     common criminal purpose.  Indeed the Trial Chamber's findings concerning

Page 51

 1     the Brioni meeting and the discriminatory housing policy all rest on the

 2     Trial Chamber's finds that an unlawful artillery attack actually took

 3     place.

 4             Let us turn our attention for a moment to the Brioni meeting

 5     findings.

 6             Concerning the Brioni meeting both the Trial Chamber and the

 7     Prosecution have conceded that there is no single statement at the Brioni

 8     meeting from which the unlawful agreement to shell civilian towns can be

 9     inferred.  Instead, both the Trial Chamber and the Prosecution explain

10     that the alleged unlawful intent of the Brioni participants is to be

11     inferred from the subsequent unlawful artillery attack which allegedly

12     took place.  On your screens, Your Honours, via Sanction this is

13     paragraph 2310 of the Trial Judgement:

14             "The Trial Chamber considers that the discussion at the Brioni

15     meeting, at which the participants discussed the importance of the

16     Krajina Serbs leaving as a result and part of the imminent attack.

17     Further, it infers from the mass exodus of the Krajina Serb population

18     within days of the launching of Operation Storm and the immediate

19     efforts, on a policy and legislative level, to prevent the population

20     from returning that members of the Croatian military and political

21     leadership intended to force the Krajina Serbs from their homes."

22             We note the juxtaposition there between the first sentence which

23     says they discussed the importance of leaving and then drawing the

24     inference that the conversation was about forcing based on subsequent

25     events.

Page 52

 1             At paragraph 2305, five paragraphs earlier, the Trial Chamber has

 2     carefully considered the minutes of the Brioni meeting in chapter 6.2.2.

 3     It here further considers them in light of subsequent events as found by

 4     the Trial Chamber.  Within days of the discussion at Brioni, Gotovina's

 5     words became a reality.

 6             It goes on and says:

 7             "The Trial Chamber has found at chapters 4.4 and 5.8.2 (i) in at

 8     least some of the these attacks the entire towns were treated as targets

 9     for the artillery.  These attacks therefore constituted unlawful attacks

10     and civilians and civilian objects."

11             Now, the Prosecution has itself argued to the Appeals Chamber

12     that the Trial Chamber did not look at the Brioni transcript itself to

13     draw its inference that the discussion at Brioni was about forcing

14     Krajina Serbs from their homes.  We'll show on the screen now portions of

15     the Prosecution's respondent's brief.  This is respondent's brief

16     paragraph 234.  The Prosecution says:

17              "The Trial Chamber correctly found that an unlawful attack

18     against civilians and civilian objects was intended and within the

19     purpose of the JCE.  This conclusion was based on many considerations,

20     not just on four factors as Gotovina claims.

21              "For example, Gotovina's repeated suggestion that the JCE shared

22     intent must be found in the words of the Brioni meeting alone should be

23     rejected; the Chamber properly made this finding on the totality of the

24     evidence."

25             We turn to paragraph 239:

Page 53

 1             "Gotovina appears to suggest that the Chamber found the existence

 2     of a formal decision at the Brioni meeting by the JCE members to target

 3     whole towns.  But there is no such finding.  Nor would a formal decision

 4     be required to find the existence of the JCE.  The Chamber concluded

 5     based on the evidence that under these circumstances a general decision

 6     was taken at Brioni to subject whole towns to the initial artillery

 7     attack.  Given the discussions at the meeting where Gotovina and Tudjman

 8     made explicit reference to the shelling and potential destruction of

 9     Knin, the express terms of Gotovina's attack order, and the

10     indiscriminate shelling of the four towns which occurred shortly

11     thereafter, the Chamber reasonably found that the JCE members at Brioni

12     decided to target these towns."

13             We turn to paragraph 268:

14             "Gotovina's references to the accuracy of his comments are beside

15     the point.  The Chamber's focus was appropriately directed at the meaning

16     of Gotovina's statements and those of the other participants in the

17     context of the meeting and subsequent events."

18             And, finally, at paragraph 271:

19             "The Chamber's finding that Gotovina intended to target ...

20     civilians to force them to leave the Krajina and to use artillery for

21     this purpose, was based on the totality of the evidence, not a single

22     statement at the Brioni meeting."

23             Accordingly, the Trial Chamber clearly made its findings on

24     Brioni contingent upon its finding that an unlawful artillery attack

25     actually took place after Storm and that Gotovina's order was unlawful.

Page 54

 1     The Prosecution concedes in its respondent's brief that the Brioni

 2     transcript, on its own, does not contain evidence of a formal decision to

 3     target towns with artillery nor a single statement in which targeting

 4     civilians with artillery to force them to leave was discussed.

 5     Therefore, if you overturn the Trial Chamber's finding of unlawful attack

 6     you must also overturn its reasoning establishing that a criminal intent

 7     existed at Brioni to target the four towns with indiscriminate artillery

 8     fire.

 9             With respect to discriminatory measures, the second element of

10     the criminal mens rea to permanently remove the Krajina Serb population,

11     concerns the Trial Chamber's findings about discriminatory housing laws.

12     This is issue cannot form the basis of a JCE involving

13     Appellants Gotovina and Markac absent of finding of unlawful artillery

14     attack because --

15             JUDGE MERON:  Excuse me, counsel.  I just wanted to make sure

16     that in your remaining time you will address us of the question of the

17     evacuation orders.

18             MR. MISETIC:  Yes, Your Honours.

19             JUDGE MERON:  Thank you.

20             MR. MISETIC:  Okay.  The Trial Chamber made express findings that

21     Appellants Gotovina and Markac, and this is at Trial Judgement paragraph

22     2325-26 concerning General Gotovina and 2562 to 63 concerning

23     General Markac, the Trial Chamber found that neither Appellant had any

24     involvement whatsoever in the housing policies or any other allegedly

25     discriminatory policies.  Accordingly, even if the Appeals Chamber were

Page 55

 1     to confirm that there existed a JCE to impose discriminatory measures, it

 2     is clear that the Trial Chamber found that neither Gotovina nor Markac

 3     had any involvement in the core crime of any such JCE, i.e., a

 4     discriminatory measures JCE.

 5             Moreover, the Trial Chamber made its findings that these housing

 6     laws were discriminatory contingent upon its findings that the Krajina

 7     Serbs had been unlawful expelled through shelling in the first place,

 8     thus making any obstacles to return unlawful.  The Appellant expressly at

 9     trial noted that states have the right to deny the immediate return of

10     nationals of an enemy state in times of armed conflict, citing a decision

11     of the Ethiopia-Eritrea Claims Commission, and this is at Trial Judgement

12     paragraphs 1748 and 1749.

13             The Gotovina Defence expressly noted that this right to prevent

14     immediate return only existed if the state did not unlawfully expel the

15     civilians in the first place.  The Trial Chamber distinguished this

16     precedent on the basis that civilians in this case had been subjected to

17     an unlawful attack against civilians.  Thus, if there is no unlawful

18     attack, then the Trial Chamber's basis for distinguishing this authority

19     disappears and we are left with the question of whether a state has the

20     right to prevent the immediate return to its territory of aliens of an

21     enemy state in an armed conflict.  The Trial Chamber avoided this

22     question when it concluded that it was irrelevant because civilians had

23     allegedly been unlawfully expelled.

24             Your Honours, in conclusion on the Appeals Chamber's four

25     questions, as is evident from your questions -- from the answers to your

Page 56

 1     question, the finding of joint criminal enterprise rests fundamentally on

 2     the Chamber's erroneous 200-metre rule from which the Trial Chamber

 3     ultimately drew erroneous conclusions about the civilian nature of impact

 4     areas, about the lawful or unlawful nature of the artillery attack and

 5     about the presence of culpable intent on the part of General Gotovina and

 6     about the existence of a JCE.  Should you overturn the 200-metre margin

 7     of error the Appeals Chamber must necessarily overturn General Gotovina's

 8     conviction on all counts because there is no JCE liability any longer.

 9             Mr. President, now in answer to your question about the Martic

10     evacuation order.  Mr. Kehoe and I have laid out for you this morning

11     that the Trial Chamber itself made explicit find in three paragraphs of

12     the Judgement, 1754, 1755, and 1762, that the Krajina Serb civilian

13     population left areas outside of the four towns for reasons that did not

14     relate to any unlawful conduct by the HV.  The Trial Chamber, as

15     Mr. Kehoe pointed out, itemised several factor from which it drew that

16     conclusion.  One of those factors -- in fact, the last fact that

17     Mr. Kehoe mentioned, and this is at a Trial Judgement paragraph 1762, is

18     "RSK officials telling inhabitants to leave on 4 August."

19             Now, Your Honour, we submit and you have seen ground 2 of our

20     appeal.  Ground 2 of our appeal, in detail itemises how and why the

21     Krajina Serb population left en masse and left from the Krajina.  The

22     issue of deportation here, as we know, the crime of deportation involves

23     forcefully expelling people across a de jure or de facto border.  There

24     is no evidence in this case of any identifiable Serb civilian that the

25     Prosecution can give you a name of any such person who claimed to have

Page 57

 1     decided to leave the Krajina in fear of unlawful artillery attack.

 2             JUDGE MERON:  Let me interrupt you, counsel, just for a second.

 3             The Trial Chamber concluded the evacuation orders were not the

 4     primary cause of civilian departure.  You believe that the Trial Chamber

 5     in this respect acted outside the scope of discretion.

 6             Why?

 7             MR. MISETIC:  Well, Your Honours, first and foremost, I think

 8     the -- as -- I think we would all agree the key issue isn't for the

 9     Defence to explain why they did leave.  It's for us to explain why they

10     didn't leave, and they didn't leave because of artillery shelling.

11             But second -- second, we laid out in our Defence final brief that

12     the Trial Chamber had more than sufficient evidence before it of all of

13     the steps taken by the RSK authorities to trigger the civilian flight.

14     There is a problem between the Trial Chamber's approach to the Martic

15     evacuation order and what we contend actually happened.

16             The Trial Chamber seems to have been looking at the narrow issue

17     of whether the evacuation order was implemented in the sense of they were

18     able to organise fuel and trucks, et cetera, and there was some sort of a

19     systemic departure from the Krajina.  Our position is that once it was

20     made known to the civilian population that an evacuation order had, in

21     fact, been issued, people decided to leave.  Whether they left organised

22     or unorganised, in a systematic manner or not, is of little relevance to

23     the ultimate issue.  Our objective is ground 2 is to explain what the

24     evidence was.  Moreover, there was plenty of evidence, including from the

25     commander of Sector South of the United Nations in Knin who filed a

Page 58

 1     report which is in evidence in which he analysed what happened in

 2     Operation Storm, and he, himself, came to the conclusion that once the

 3     evacuation order was issued everybody decided to leave, civilians and

 4     military.  And so we do believe that the Trial Chamber failed to address

 5     key evidence; for example, the Trial Chamber doesn't address that

 6     evidence from the commander of the UN Sector South.  There is other

 7     evidence that we have identified in our briefs that the Trial Chamber

 8     simply failed to address, and as we noted the Trial Chamber on critical

 9     issues has a duty to address key evidence in the case.

10             The -- the other factor, Your Honours, to consider is that the

11     Trial Chamber's basis for excluding the evidence concerning Martic rests

12     on the testimony of Kosta Novakovic, who testified that civilians were

13     already on the move prior to the evacuation order and who also said that

14     they issued the evacuation order in order to put some order into a

15     process that was already taking place.  We suggest, Your Honours, that

16     the Trial Chamber committed an error when it failed to do any assessment

17     of the credibility of a person -- a military person in the ARSK -- or SVK

18     who in fact participated in the issuance of the order and had a motive to

19     downplay the importance of that order.  So, Your Honours, we believe

20     there were several errors committed by the Trial Chamber in failing to

21     address that evidence.  But again I would emphasise that for purposes of

22     this case, what is important is what didn't cause the departure and we

23     would argue that there is no basis for the Trial Chamber to conclude that

24     all of the reasons outside of the four towns could not have been a

25     reasonable explanation for why civilians left the four towns.

Page 59

 1             Now I will -- unless there are any other questions,

 2     Mr. President, I will turn the floor over for a five-minute submission by

 3     my colleague, Mr. Akhavan.

 4             JUDGE MERON: [Microphone not activated]

 5             MR. AKHAVAN:  Mr. President, distinguished members of the

 6     Appeals Chamber, I'm honoured to make some brief concluded remarks on

 7     this appeal and its wider implications for humanitarian law.

 8             This case is simple and straightforward.  The Trial Judgement's

 9     fundamental finding is that HV violations of Article 51, paragraph 2 of

10     protocol 1 was of such an exceptional scale and gravity that it

11     constitutes crimes against humanity.  It finds in particular that the

12     deliberate targeting of whole towns was so extreme that it was the direct

13     and primary cause of the mass exodus of 20.000 civilians.  In this

14     context, the persecutory attack of unlawful attack is not merely one act

15     among other; rather, it is helped to constitute the very essence of the

16     widespread or systematic attack against the civilian population.

17             What is the proof in support of this far-reaching conclusion?

18     Quite simply, the totality of the evidence is that 1.200 artillery

19     projectiles were fired in urban areas but without a finding of even a

20     single civilian death or injury and without any proof of extensive

21     destruction of civilian objects under such circumstances is a massive

22     deliberate attack against a civilian population the only reasonable

23     inference.  The conclusion would have to be that despite a criminal

24     policy the HV forces were so exceptionally incompetent that none of their

25     1.200 projectiles succeeded in hitting a single civilian.  Needless to

Page 60

 1     say, such a conclusion would be manifestly absurd and no amount of

 2     creative legal reasoning can compensate for this fundamental lack of

 3     proof.

 4             This case, we submit, is as simple and straightforward as that.

 5             General Gotovina's conviction on these facts is a miscarriage of

 6     justice, but there is a wider consideration here.  The Judgement

 7     establishes a precedent that would make lawful warfare practically

 8     impossible.  Throughout modern history, humanitarian law has been

 9     relevant to military commander because it has struck a realistic balance

10     between humanitarian protection and military necessity.  The former ICRC

11     legal adviser Louise Doswald-Beck observes that states negotiating

12     protocol 1 intended to "codify a law that was acceptable to their

13     military staff."

14             Eminent publicists have noted however that courts and tribunals

15     have frequently ignored operational or battlefield practice.  In order to

16     remain credible and relevant the jurisprudence of this Tribunal must

17     apply humanitarian law consistent with the operational realities of

18     warfare and not an impossible standard.  Consider, for instance, the

19     observation of Professor Michael Schmitt in the International Review of

20     the Red Cross, and I quote:

21             "That there is no foundation to claims of the emergence of the

22     customary norm on the use of precision weaponry in urban settings or that

23     states which possess precision weapons must always use them."

24             That's in the 2005 issue of the International Review of the

25     Red Cross at page 460.  If General Gotovina is convicted of large-scale

Page 61

 1     unlawful attacks on these facts, what is the practical standard for urban

 2     warfare applicable to the most advanced armed forces of the world?

 3     Surely if General Gotovina is guilty of attacks against whole towns

 4     without a single finding of civilian death or injury then military forces

 5     with precision weapons must be held to an even higher standard.

 6             It is evident that despite feasible precautions even the military

 7     operations of the most advanced forces have resulted in thousands of

 8     civilian casualties.  Indeed, it is difficult to image any urban combat

 9     in recent history that compares favourably with the HV artillery

10     operations in terms of civilian impact.

11             Mr. President, distinguished members of the Appeals Chamber, like

12     Tadic almost two decades ago, this is a landmark case for the Tribunal

13     that will be widely scrutinised, especially by military experts on the

14     laws of war.  By applying a reasonable standard, informed by operational

15     and battlefield practice, the Appeals Chamber will ensure a lasting

16     contribution to the viability of humanity law.  Applying such a standard,

17     we respectfully submit, clearly requires this Chamber to enter a

18     Judgement of acquittal against General Gotovina.

19             I thank the Chamber for its patience.  That conclude our remarks.

20             JUDGE MERON:  Thank you, Mr. Akhavan, and thank the counsel for

21     Mr. Gotovina for adhering to the timetable and for their arguments.  We

22     will now -- yes, Mr. Stringer.

23             MR. STRINGER:  Mr. President, I didn't want to interrupt counsel

24     during their submissions, but in the course of the submissions we were

25     looking at the maps, and it just appears to us that the legend that

Page 62

 1     appears at the bottom of a couple of these doesn't correspond to the size

 2     of the circles, the 2- or 400 metres.  I don't know if it means anything.

 3     I don't know if the Chamber is going to have these, but it is something

 4     that we notice.  I'm looking at Map A here.  The 200 doesn't appear to

 5     correspond to the 1.000-metre scale that is at the bottom but I just

 6     wanted to note that.

 7             JUDGE MERON:  We just looked at these without prejudice.

 8             I will -- we will now -- unless there is it an answer to that,

 9     that you ... we will now adjourn for a -- until 11.00 a.m.

10                           --- Recess taken at 10.45 a.m.

11                           --- On resuming at 11.01 a.m.

12             JUDGE MERON:  Please be seated.

13             Response by the Prosecutor.  An hour and 30 minutes.

14             Mr. Stringer, please.

15             MR. STRINGER:  Thank you, Mr. President.  Good morning to you,

16     again, and Your Honours.  Counsel.

17             This morning, together with my colleague Matthew Cross, I will

18     address General Gotovina's arguments in his ground 1 on the unlawful

19     shelling attack which the Chamber found was directed against the four

20     towns of Knin, Benkovac, Gracac, and Obrovac on the 4th and

21     5th of August, 1995.  In the course of our submissions, Mr. Cross and I

22     will address the first three questions that the parties received from

23     Your Honours.  After Mr. Cross and I have concluded, my colleague

24     Ms. Baig will address the Chamber's fourth question.  And after that, my

25     colleague Ms. Verrall will address the deportation and evacuation order

Page 63

 1     issue.

 2             As an overview, Your Honours, our submissions on the unlawful

 3     attack can be summarised as follows.  The Trial Chamber correctly found

 4     that the Croatian Army, HV, shelling attack of the 4th and

 5     5th of August was an unlawful, indiscriminate attack on the towns.  The

 6     unlawful attack was not a singular event, unconnected to others, but,

 7     rather, was part of a common criminal plan to permanently remove the Serb

 8     civilian population from the Krajina region of Croatia.  Its findings on

 9     unlawful attack are amply supported by various sources of evidence, all

10     of which consistently point to the fact that the towns themselves were

11     targeted in the attack.  This includes the discussion among Gotovina,

12     Markac, and others, with President Franjo Tudjman at Brioni on the

13     31st of July, 1995, four days before the attack.  The Chamber correctly

14     concluded that this discussion was "about civilians being forced out."

15             Secondly, the plain language of the attack order issued by

16     General Gotovina on the 2nd of August to "put the four towns under

17     artillery fire," as well as the orders of Gotovina's subordinates to the

18     same effect.

19             Thirdly, the numerous eye-witness accounts and conclusions of

20     UN military personnel in Knin as part of the UN peacekeeping forces there

21     who observed that the shelling attack hit all over the town and was

22     indiscriminate.

23             Also, the finding on lawful attack, the Chamber's finding was

24     informed by the total disregard of the civilian population in Knin when

25     the HV shelled several locations, hoping to hit RSK President Milan

Page 64

 1     Martic, even though they knew the chances of hitting him were very

 2     slight.  I will refer in greater detail to each of these.

 3             The only reasonable conclusion to be drawn from all of this

 4     evidence is that an unlawful shelling attack on the four towns was

 5     planned, ordered and executed.

 6             In regard to the issues of margin of error and the significance

 7     of the Trial Chamber's findings on specific impact locations as raised in

 8     the Chamber's questions 1, 2, and 3, this is the Prosecution's position.

 9             First, this goes to question 1, if you consider the evidence

10     available to the Chamber at trial, its use of a 200-metre margin of error

11     in its analysis of the shelling case was not unreasonable.

12             Our answer to question 2 is that any error involving the

13     200-metre margin of error does not affect the Trial Chamber's findings on

14     impact sites.  The 200-metre margin of error was used primarily to assess

15     the testimony of Gotovina's chief of artillery, Rajcic, who claimed that

16     the HV had precise weapons that targeted only lawful targets.

17             The Chamber's exacting analysis of specific impact sites shows

18     first and foremost that projectiles hit all over the towns, including on

19     or near homes, a hospital, a health clinic.  The Chamber correctly found

20     that the location and the spread of known impact sites across the towns

21     was inconsistent with Rajcic's claims of precise, lawful targeting.  This

22     holds true even if the margin of error was greater than 200 metres.

23             In question 3, the Chamber asks whether the overall finding of

24     unlawful attack should be upheld if the Trial Chamber's conclusions on

25     impact sites are found to be erroneous.  Again, the answer is yes.  Based

Page 65

 1     on the wide range of evidence which I'll refer to in these submissions,

 2     such as the criminal plan discussed at Brioni, and the attack orders

 3     themselves, the use of the 200-metre margin of error in connection with

 4     findings on the limited number of known impact locations does not affect

 5     the overall finding of unlawful attack.  Even setting aside margin of

 6     error, you can find that the towns themselves were deliberately targeted

 7     based on all the other evidence.

 8             This Chamber should reject the Defence's attempt to elevate any

 9     single item, including margin of error, to such a status that that item

10     alone determines the lawfulness, or not, of an artillery attack.  Judges

11     must consider the commander's intent based on all the evidence.  Intent

12     is determined by considering all his acts and his omissions, not just by

13     calculating the margin of error of his weapons.

14             The Chamber's consideration of the shelling attack cannot begin

15     with the first shells that hit the four towns, beginning at about 5.00 in

16     the morning on 4th of August.  We must first go back to a consideration

17     of the common criminal plan.

18             Although the unlawful attack on the towns of Knin, Benkovac,

19     Gracac, and Obrovac formed a significant part of the common plan, it was

20     not the only part.  The plan was wider in scope and wider in its

21     implementation.  Its precisely this wider scope and how the unlawful

22     attack fits into the overall common criminal plan that support the

23     Trial Chamber's findings on unlawful attack.

24             Like the Trial Chamber, this Chamber must consider the discussion

25     and the agreements made four days earlier at Brioni.  There, Gotovina,

Page 66

 1     Markac, and other high-level advisors joined Croatian president Tudjman

 2     to discuss the retaking of the Krajina in what was to become known as

 3     Operation Storm.  As the transcript of this meeting - it's in evidence as

 4     Exhibit P461 - makes clear, the Brioni discussion was not confined to

 5     legitimate military aspects and goals of the operation.  Rather, it

 6     reveals that the objective was to ensure that the civilian population

 7     itself would be driven from the region as part of the military operation.

 8     It is no accident that the removal of the Serb civilian population was a

 9     part of the operation.

10             President Tudjman viewed the Serb population in Croatia as a

11     strategic threat.  Peter Galbraith, the United States ambassador to

12     Croatia from 1993 to 1998 had frequent meetings and contacts with

13     President Tudjman.  In his evidence, Ambassador Galbraith stated:

14             "President Tudjman preferred a reasonably or basically homogenous

15     Croatia.  He believed that states ought to be ethnically homogenous or

16     close to it.  He believed and stated that the Serbs in Croatia were too

17     numerous and constituted a strategic threat to Croatia.  He very much

18     approved the population transfers."

19             That's Exhibit P44 [sic], paragraph 31, referred to in the

20     Judgement, paragraph 1999.

21             Indeed, civilians were one of the issues on which

22     President Tudjman focussed at Brioni, saying:

23             "But as I've said, and we've said it here, that they should be

24     given a way out here ... because it is important that the civilians set

25     out, and then the army will follow them, and when the columns set out,

Page 67

 1     they will have a psychological impact on each other."

 2             That's the transcript Brioni, P461, at page 15.

 3             In response to this statement, General Gotovina stated that if

 4     the Croatian forces continued to exert pressure, the only civilians left

 5     would be the ones who were incapable of leaving.  And you have the

 6     General's remarks on the screens in front of you.

 7             "If we continue the pressure possibly for some time to come,

 8     there won't be so many civilians, just those who have to stay."

 9             Now, Your Honours, are these the statements that you would expect

10     from military leaders who intend to honour their obligation to protect

11     the civilian population during the attack?  "It is important that they

12     set out ... if we continue the pressure ... there won't be so many

13     civilians left?"

14             The Trial Chamber correctly concluded that the discussion of

15     civilians at Brioni was not about protecting them but was, rather, about

16     civilians being forced out.  That's paragraph 1995 of the Judgement.

17             The artillery attack that followed four days later must be viewed

18     in this light.  That the Serbian population, viewed as a strategic

19     threat, was to be forced out as part of the military operation.

20             Other aspects of the criminal plan that occurred after the

21     shelling attack nonetheless furthered the goal of driving the Serbs out.

22     This sheds light on the nature of the attack itself.  We know that on

23     completion of the artillery attack, Gotovina and Markac's ground forces

24     entered the four towns.  Gotovina's prediction at Brioni proved to be

25     true.  The few Serb civilians who remained after the shelling attack

Page 68

 1     were, for the most part, those who had been too old or weak to flee.

 2             For the next two months, these unfortunate individuals were the

 3     target of an unrestrained wave of crime and retribution at the hands of

 4     Gotovina and Markac's subordinates.  Through it all, Gotovina and Markac

 5     took no serious measures to put an end to the crimes.

 6             The lack of concern for the protection of civilians that

 7     manifested itself in General Gotovina's remarks at Brioni was all too

 8     apparent in the aftermath of the shelling attack.  Another aspect of the

 9     overall plan sheds light on the objective of the attack itself.  Once the

10     Serbian population was removed from the Krajina after Operation Storm,

11     Croatian government officials took steps to ensure that the Serb

12     civilians who fled would not be able to return.  Ethnic Croats were

13     encouraged to move into the houses abandoned by the Serbs.

14     Discriminatory laws were enacted that made it much more difficult for the

15     Serbs to return and claim their homes.

16             Gotovina and Markac themselves were not personally involved in

17     developing these policies.  They contributed to the common plan in other

18     ways.  However, the policies on preventing Serb returns do tell us about

19     the overall objective of Operation Storm.

20             Thus, as I have said, the unlawful attack cannot be viewed in

21     isolation as a singular event, unconnected to the others.

22             JUDGE MERON:  Mr. Stringer, in connection with your last point,

23     are you suggesting that your case does not rest on the occurrence of

24     unlawful military attacks?

25             MR. STRINGER:  No, I'm not suggesting that at all.  What I'm

Page 69

 1     suggesting, Mr. President, is that the lawfulness of the attack has to be

 2     assessed in light of all of the events not only that occurred before the

 3     attack but also after.  The attack is a reflection --

 4             JUDGE MERON:  But if the attacks are not unlawful --

 5             MR. STRINGER:  If the attacks are not --

 6             JUDGE MERON:  -- are not unlawful, you still have a case?

 7             MR. STRINGER:  Yes, we do have a case.  My colleague, Ms. Baig,

 8     and later today Ms. Brady, are going to address that issue which, as I

 9     understand, goes largely to question 4.

10             My submissions, Mr. President, are assuming and, if I may say

11     adamantly, advocate the position based on the evidence that the attack is

12     unlawful.

13             JUDGE MERON:  The 200-metres question is sort of overarching in

14     this case.  Now should the Appeals Chambers - and I'm not indicating in

15     any way that it might or might not - but if the Appeals Chamber were to

16     reverse the finding of the Trial Chamber regarding the 200-metres range

17     of error, how is evidence from the impact sites determined by the

18     Trial Chamber helpful, given that the Trial Chamber itself found that

19     each of the four towns also contained lawful military targets?  Couldn't

20     the impacts far from those military targets be simply an error?

21             Is there any significance to be attached to the argument made

22     earlier today by the Defence, pertaining to virtual absence of civilian

23     casualties?

24             MR. STRINGER:  Mr. President, I'll try to move through your

25     questions as briefly -- or as succinctly as I can.

Page 70

 1             JUDGE MERON:  That's the way.

 2             MR. STRINGER:  200 metres, as I'm going to say, or as I had hoped

 3     to say a bit later in my submissions, the 200-metre margin was correct

 4     based on the evidence at trial.  Now, if it's not correct, this is what

 5     we know and how the 200-metre rule was applied.  And I'll bring this back

 6     to the 95 per cent figure that my colleagues continue to rely on.

 7             At the trial, the Chamber was only able to determine the specific

 8     location, specific impact sites for about 10 per cent of all the shells

 9     that were fired.  We know that at least 1200 shells were fired in the

10     four towns during the operation, 900 at least were fired into Knin.

11             When the Trial Chamber talks about specific impact locations, it

12     is only talking about those that it was able to fix, which is only about

13     10 per cent of the total.  If you look at the annex that we attached to

14     our brief, when you look at the known impact locations, the known impact

15     locations, 50 per cent of those fall outside 200 metres, roughly.  Half

16     fall in; half fall out.

17             Now, in order to get us to the 95 per cent figure that my learned

18     colleagues refer to, what they've done is to take the other 90 per cent,

19     the unknown impact locations, they've assumed that all of those unknowns

20     actually landed inside 200 metres.  There's no basis for making that

21     assumption.  So we know that if 5 per cent of the knowns landed within

22     200 metres, they've added 90 per cent, which are the total number of

23     unknowns to get to their figure.  Actually, the number that matters is

24     the spread, the proportion of the known ones.  Because if the known

25     shells fall evenly, roughly evenly across the towns, as the Chamber

Page 71

 1     found, and as the witnesses testified to, then there's no basis for

 2     assuming that the 90 per cent of the unknown impacts all fell within

 3     200 metres.  That's especially the case if you now expand the margin of

 4     error out to 400 metres, assume that the weapons they used were twice as

 5     inaccurate as the Trial Chamber gave them credit for.

 6             So, what we know about the impacts, the known ones, which are the

 7     only ones that matter for the purposes of the 200-metre rule because the

 8     200-metre rule was only applied to the known impact locations, that means

 9     that roughly half, 50 per cent, fell within 200.  Not 95 per cent, as

10     counsel have stated.

11             If I could just respond to your other question, Mr. President, on

12     the presence of military targets in the towns.  We've done a number of

13     unlawful shelling cases at this Tribunal, Mr. President, as you and the

14     Judges well know.  The fact that there are lawful targets during the

15     course of what's found to be an unlawful attack is not remarkable.  And

16     it certainly does not distinguish this case from any of the unlawful

17     shelling cases that we've had here before.  Yes, there are lawful

18     targets.  But in determining the intent of the shelling operation, you

19     can't simply look at a limited number of places where you know shells

20     fell.  You have to look at all the evidence.

21             And with your permission, Mr. President, if I could return to my

22     submissions, I would like to talk about some of the other evidence on

23     this.

24             Apart from the discussion at Brioni, we know that Gotovina issued

25     his attack order on the 2nd of August, two days later.  That's in

Page 72

 1     evidence at P1125.  And I want to draw the Chamber's attention to the

 2     language that the Chamber had at the trial on this point.  You've got it

 3     in front of you now, Your Honours.

 4             What the General has done here was to direct in his order that

 5     specific lawful targets, military targets be hit, strikes against the

 6     enemy's front line, command posts, communications, and by putting the

 7     towns, Drvar, Knin, Benkovac, Obrovac, Gracac, under artillery fire.

 8     This was added in addition to the other targets specified by the General

 9     in his order.  I should note Drvar, Your Honours, is located outside the

10     scope of the indictment in this case.  It's in Bosnia and Herzegovina and

11     was not considered by the Trial Chamber.

12             So, what we see here is language that, as the Trial Chamber

13     sensibly noted, was based on a plain reading of the text of this order.

14     The Trial Chamber found this indicates an order to the HV to treat whole

15     towns in Knin as targets.  That's paragraph 1893 of the Judgement.

16             Now, Your Honours, this order and this specific direction was

17     passed down the chain of command.  We see it again in the order issued by

18     the General's chief of artillery, Chief of Staff of artillery,

19     Marko Rajic, who, in his order, and you've got the language in front of

20     you now, directed that, in addition to doing all of these other things,

21     neutralising, hitting communications centres, command posts, et cetera,

22     he ordered put the towns under artillery fire.  The same language.

23     That's Exhibit D97.

24             Your Honour, the same language moves down the further down the

25     chain of command, closer to the people who are going to be firing these

Page 73

 1     guns.  Exhibit P1263 is the order of Zadar Operative Group chief of

 2     artillery, Marijan First.  He ordered put the following -- excuse me, let

 3     me -- I skipped over Mladen Fuzul, OG Zadar commander, who in language

 4     virtually identical to Gotovina's ordered his subordinate artillery

 5     groups to "lay down fire on the towns of Benkovac and Obrovac."  Lay down

 6     fire on the towns.  The same thing appears in the order issued by OG --

 7     chief of artillery, Marijan First who again orders:

 8             "Put the following towns under artillery fire:  Benkovac, Gracac,

 9     Obrovac."

10             Now, the Defence in their submissions made a lot of statements

11     about firing into civilian areas.  Well, these are civilian -- the towns

12     themselves are civilian areas.  We know that in addition to the orders

13     themselves emanating from General Gotovina, moving down the chain of

14     command, that contemporaneous reports referred to my colleagues of -- who

15     were actually -- who were made by the people firing the artillery, also

16     support the view that they were, indeed, firing on the towns.

17             This Exhibit P1268 is a report of the TS-4 artillery group that

18     was firing on Knin.  Here, in their report, they say that at 1500 hours,

19     in irregular intervals, they fired a total of 18 projectiles from a

20     T-130 - that's one of the artillery guns - at the general area, the

21     general area of Knin.  This is perfectly consistent with the language

22     that we see in the orders of the superiors.

23             Now, at trial, Mr. President, I'd like to draw your attention to

24     the testimony of the Prosecution's artillery expert witness,

25     Colonel Konings.  Konings was present in Sarajevo during the conflict,

Page 74

 1     and he led UN investigations of shelling incidents there.  At trial, this

 2     is what he said in reviewing the artillery report we just looked at about

 3     the shells fired into Knin.

 4             He told the Trial Chamber in this case:

 5             "And I have to go back to my experience being six months inside

 6     the city of Sarajevo.  There was no military purpose.  The only purpose

 7     of using artillery in this way was harassing a civilian population with

 8     the objective to make them flee."

 9             He continues:

10             "I have to say it in this clear way because that is the

11     connection that I find in using the word 'irregular intervals,'

12     18 projectiles in the general area of Knin, and then the connection with

13     the OP order that we discussed before."

14             And the OP order he refers to there is the artillery -- or the

15     attack order issued by General Gotovina.

16             There are more reports issued by different groups, different

17     soldiers in different places who are also reporting the same thing.

18     Exhibit P2385 comes from a log of the special police.  At 8.55 in the

19     morning and then again at 11.30 in the morning, Your Honours have it,

20     they say that they are shooting artillery fire.  References to artillery

21     fire targeting Gracac and Medak.  11.30, "artillery fire targeting

22     Gracac."

23             Again, targeting towns.  The towns themselves being the objects

24     of attack.

25             Another is Exhibit P1200, Your Honours.  I'm not going to talk

Page 75

 1     about it in detail.  I'll draw your attention to it.  These and other

 2     reports that the Trial Chamber had supported its finding, its correct

 3     finding in our view, that the reporting of the artillery units is

 4     consistent with the other evidence indicating that the HV was treating

 5     the towns themselves as targets.  Paragraphs 1911, 1923, 1935, and 1943.

 6     We submit that this interpretation was reasonable given the plain

 7     language of the General's attack order, the language of his subordinates'

 8     attack orders, and the view that Gotovina expressed at Brioni, that with

 9     continued pressure the civilian population would depart.  What other

10     explanation can there be for simply shooting projectiles into towns?

11     There's only one reasonable conclusion to be reached.

12             In addition to the attack orders and the reports of the HV's

13     artillery, the Trial Chamber justifiably relied on the testimony of

14     experienced military personnel present in Knin on the 4th and 5th.  One

15     of them was UN Sector South commander Forand.  He told the Trial Chamber

16     that the shelling of Knin was "indiscriminate and was directed against

17     the civilian population to create mass panic."  Another one of these

18     observers was Leslie, who I will talk about further in my submissions.

19             Finally, the Trial Chamber had evidence and rightfully considered

20     evidence of the disproportionate attack on RSK President Milan Martic.

21     The Chamber correctly observed that the manner in which Gotovina's

22     subordinates attempted to shell him in his apartment building revealed

23     its attitude toward the civilian population living in Knin.  They fired

24     shells at his presumed location on three occasions on the 4th.  The first

25     of these attacks occurred between 7.30 and 8.00 in the morning on the

Page 76

 1     4th.  The HV fired 12, 130-millimetre artillery shells at his apartment

 2     building.  The Trial Chamber found that this was an otherwise civilian

 3     apartment building located in a predominantly civilian area of town.

 4     Gotovina's artillery commander, Rajcic, testified that they did this even

 5     though they knew the chance of hitting or injuring Martic was very

 6     slight.  It's at Judgement paragraph 1910.

 7             The Trial Chamber found that in this attack there was a

 8     significant risk of a high number of civilian casualties and injuries.

 9     Its finding was undoubtedly based in part on testimony of Konings.  I

10     direct Your Honours to his testimony at page 14316 of the transcript

11     where he talked about what happens when one of these projectiles impacts

12     a civilian area, when a shell -- the -- I should say the -- what he

13     called the "absolute lethal distance" within which a shell will kill

14     everyone in its range.

15             So just to work backward from where I am at this point.  During

16     the morning of the 4th of August, while the HV was firing its

17     130-millimetre shells at Martic's apartment building knowing that they

18     had little opportunity to hit him, Forand and others were experiencing

19     what they concluded was an unlawful attack.  The same attack was being

20     directed against the three other towns at the same time.  The artillery

21     personnel delivering these projectiles were writing down in their reports

22     that they were firing on the towns, or in the general area of the towns.

23     This is what they've been ordered to do.  Their orders lead directly up

24     the chain of command back to General Gotovina.  And Gotovina himself had

25     issued this order because, as we know from Brioni, it was necessary that

Page 77

 1     the civilians set out, that they leave.

 2             Let me respond to the General's arguments, as well as the

 3     Chamber's questions.

 4             This brings us down to Gotovina's challenges based on margin of

 5     error of the weapons systems he fired.  He misunderstands the role that

 6     the 200-metre margin played in the Chamber's analysis.  In question 1,

 7     Your Honours ask whether the Trial Chamber erred in applying the

 8     200-metre margin of error.  The answer is no.  Based on the record, based

 9     on the evidence available at the time, it was reasonable.

10             If you look at Judgement paragraphs 1893 to 1911, you'll find

11     that the primary purpose of the Chamber's margin of error analysis was

12     not to determine conclusively whether the attacks as a whole were

13     unlawful.  Rather, the margin of error analysis formed part of the

14     Chamber's assessment of Rajcic's claim that the attack orders, despite

15     their plain text, were interpreted as only pertaining to lawful targets.

16             After considering the number and location of the known impacts

17     that fell more than 200 metres from a lawful target, the Chamber

18     determined that Rajcic's interpretation of the plain language of the

19     orders issued by General Gotovina himself and the others was not credible

20     in light of all the other evidence that I've just summarised.  Such as

21     the attack orders, the artillery logs.

22             The Trial Chamber said that it considers that the deliberate

23     firing at areas in Knin which were devoid of military targets is

24     inconsistent with Rajcic's explanation of the HV artillery orders, and

25     the Chamber had every reason to conclude that they were firing

Page 78

 1     deliberately at Knin without respect or without regard to military

 2     targets because we see it in the attack orders, and we see it in the

 3     reports of the HV's artillery, who were delivering the projectiles into

 4     the towns.

 5             JUDGE MERON:  Counsel --

 6             MR. STRINGER:  This is how the --

 7             JUDGE MERON:  -- if the attacks were, as you are suggesting,

 8     deliberate, or even if they were merely indiscriminate, in contrast to

 9     Sarajevo which you mentioned a few moments ago, where there were plenty

10     of casualties, could you give me a simple explanation as to how to

11     explain that even if the Defence was not quite accurate in suggesting

12     there were no casualties whatsoever, how do you explain there were so

13     very few?

14             MR. STRINGER:  Mr. President --

15             JUDGE MERON:  There were hundreds and hundreds of shells fired.

16             MR. STRINGER:  My colleague Mr. Cross is going to address the

17     issue of civilian casualties in greater detail.

18             I will say this.  The unlawful attack that's charged in this case

19     was charged as a persecutory act not as an unlawful attack itself.  So

20     that the -- it wasn't required, first and foremost, to prove civilian

21     death.  We don't have an annex attached to this indictment in which

22     deaths -- specific victims were identified and whose deaths were proved

23     at trial.  It wasn't required because of how the unlawful attack is

24     charged in this case as part of the persecution.

25             Now, as Your Honour, I believe, indicated, you seem to be aware

Page 79

 1     of the evidence in the record about the many witnesses who saw the many

 2     casualties, injuries, people lying in the streets of Knin, during the

 3     course of the attack on the 4th and the 5th.  It bears noting that the

 4     HV's infantrymen, their ground forces did not enter these towns, until

 5     Knin, midday, on the 5th.  So if the witnesses, many of them who have

 6     testified about the casualties, the bodies that they've seen on the 4th,

 7     there can only be one cause of that.

 8             So we see the issue of casualties as somewhat of a red herring,

 9     Mr. President.  It wasn't required to be proved, and it certainly ignores

10     the fact that the witnesses provide a lot of evidence about the existence

11     of casualties, and, worse, during the course of a shelling attack.

12             JUDGE MERON:  Thank you, Mr. Stringer.

13             MR. STRINGER:  If I could just ask for my time.

14             Mr. President, my colleagues were going to start throwing things

15     at me if I go over 40 minutes and I'm at 40 minutes now.  Let me try to

16     quickly wrap up because I don't believe I have actually gotten to all of

17     your questions and I would like to do that.

18             Question 1 I've answered.  It was reasonable based on the

19     evidence.  We draw Your Honours' attention to the testimony of Gotovina's

20     artillery Chief of Staff, Rajcic, who spoke about the margin of error of

21     the 130-millimetre guns that were fired on Knin.  The Chamber did have

22     the testimony, as was pointed out in the Defence submissions, of Konings

23     about the 155-millimetre weapon, which is a different weapon but which

24     is -- the Trial Chamber considered in factoring in where it was going to

25     come down on margin of error.

Page 80

 1             On the 400-metre margin of error, Mr. President, if I could just

 2     add this because now the Defence wants to embrace the testimony of

 3     Mr. Leslie who testified about a 400-metre margin of error on a first

 4     shot.  He did not testify at trial as an expert under Rule 94 bis, and

 5     the Defence actually objected to his evidence on that basis at trial.

 6     The fact that the Defence now embraces a 400-metre margin of error is

 7     notable because this accepts generally that the weapons fired into the

 8     four towns were substantially less accurate, less precise than the

 9     Trial Chamber gave them credit for.  It is also noted because, as Leslie

10     testified, he concluded that the attack was indiscriminate.  I refer

11     Your Honours to pages 1990 to 1991 of the Judgement, in which Leslie

12     testified that the fire was all over the place.  If, as General Leslie

13     observed, Gotovina's men were firing all over the place, then the margin

14     of error is of little consequence.  If they were targeting the towns

15     themselves, based on the attack orders, as reflected in the artillery

16     reports that are being written contemporaneously, then the margin of

17     error doesn't matter.  It doesn't affect any findings on the

18     deliberateness of the attack.

19             Your Honours, I'm going to now summarise, and this goes to

20     question 3, going to conclude, I should say.

21             In his report, Colonel Konings described how the artillerymen

22     calculate margin of error.  It's mathematics.  You refer to firing

23     tables.  You factor in the weather.  It gives you a range of error, how

24     likely you are to hit the target.  He never suggested, nor did the

25     Trial Chamber, that margin of error is the beginning or the end of the

Page 81

 1     analysis.

 2             This case does not rise or fall based solely on whether the known

 3     impact locations are within or without a margin of error, whatever the

 4     margin might be.  Your Honours must determine the intent of the commander

 5     and his intent is ascertained by considering all the evidence, not simply

 6     by calculating margin of error of the weapons the commander deployed.

 7     Intent must be determined by considering the commander's behaviour.  Not

 8     just the behaviour of his weapons, as expressed in margins of error.  All

 9     of his acts, his orders, his statements, his omissions must be examined.

10     In this case, Your Honours, the Chamber did just that, whether the margin

11     of error of Gotovina's artillery is 200, 400, or 1200 metres, and whether

12     any given projectile impacted 200 metres from a target, 450 or 700, and

13     there's evidence of all of those, it does not change what Gotovina said

14     at Brioni.  It doesn't change what he put in his attack order.  It

15     doesn't change what's reflected in the attack orders of his subordinates.

16     It doesn't change the fact that, as reflected in the HV's own reports,

17     they were firing into the towns themselves.  And it's for those reasons,

18     Mr. President, and this is in response to the Chamber' question 3, any

19     error, any flaws in the Chamber's analysis of the 200-metre rule or on

20     specific impact locations of which only 10 per cent is known does not

21     affect the overall finding of unlawful attack which was justifiably and

22     amply based on all the evidence in the case.

23             Now, unless Your Honours have any more questions, I am going to

24     turn the floor over to my colleague, Mr. Cross.

25             JUDGE MERON:  Judge Pocar.

Page 82

 1             JUDGE POCAR:  Counsel, may I perhaps ask you a clarification on

 2     your position, just to understand it well.  Are you pushing your line of

 3     reasoning up to the point that even if technically the targets, the

 4     targets of the attack, would have been only the military attacks -- or

 5     the military targets, the attack itself would have been unlawful because

 6     it was a part of a means of committing the crime of forced transfer of

 7     the population.

 8             Is that your theory?

 9             MR. STRINGER:  Yes, Your Honour.  And you're going to hear more

10     about that in the submissions from my colleagues, Ms. Baig and also

11     Ms. Brady.

12             But if the attack was carried out with the intent to forcibly

13     remove the civilian population, then the -- even if -- and if they were

14     counting on collateral damage, if you will, to bring that about as -- as

15     the result of shelling only lawful targets, then if they possessed the

16     intent, it would, indeed, constitute the criminal -- the triggering event

17     for the deportation.

18             So in this respect, the lawfulness of the attack or not would not

19     affect the overall finding on terms of JCE or deportation.  Again, it's

20     our position that the unlawful attack itself was intended and that the

21     towns were deliberately targeted to bring about that very result.

22             JUDGE POCAR:  So your position is that the attack, even if they

23     have acted against military targets, if they had the purpose of -- not of

24     getting military advantage simply from the attack by destroying the

25     targets, the military targets, but in order to commit a crime, the crime

Page 83

 1     of forced transfer, that would make it unlawful?  Even if technically, in

 2     theory, justified -- justifiable.

 3             MR. STRINGER:  As Your Honour knows, the crime of forcible

 4     transfer, deportation, can be carried out by means that are lawful or

 5     unlawful.

 6             JUDGE POCAR:  I get your position.  Thank you.

 7                           [Appeals Chamber confers]

 8             MR. STRINGER:  Is the Chamber ready for me to pass now to

 9     Mr. Cross?

10             JUDGE MERON:  Please proceed.

11             MR. STRINGER:  Thank you, Your Honour.

12             MR. CROSS:  Good morning, Your Honours.

13             To answer the second question on the addendum, I shall now

14     address the evidence and findings concerning particular impact locations.

15     And my submissions shall address three points.

16             First, that pursuant to Gotovina and Markac's orders, the HV and

17     special police fired indiscriminately on the towns of Knin, Benkovac,

18     Gracac, and Obrovac.  They hit both lawful targets and civilian objects

19     alike.

20             Second, That the Trial Chamber's conclusion that the towns

21     themselves were targeted remains reasonable.  If all of the impact

22     locations throughout the towns can be explained by a margin of error

23     which is greater than 200 metres, then Your Honours can, and should, draw

24     an inference from that finding of the weapons' very inaccuracy.  And

25     given the other evidence in the Judgement, the use of such inaccurate

Page 84

 1     weapons would still support the plain text of Gotovina's order to attack

 2     the towns.

 3             And, third, Your Honours, this was far from a victimless crime.

 4     The unlawful attack on Knin alone dispossessed 14.000 Krajina Serbs from

 5     their homes.

 6             I beg your pardon.

 7             JUDGE MERON:  Counsel.

 8             MR. MISETIC:  Your Honours, I apologise for rising.  This was an

 9     issue that arose in briefing with the parties.  I did want to note for

10     the record our objection because it appears that the Prosecution is now

11     arguing disproportionate attack and this was an issue we had raised

12     before and we'd note our objection to it.  Thank you, Mr. President.

13             MR. CROSS:  Your Honours, if I may briefly respond to

14     Mr. Misetic.

15             As Your Honours may recall, the Prosecution made a filing at the

16     end of last week setting out its position with regard to the centrality

17     of proportionality to the case at trial.  Given the shortage of time,

18     Your Honours, I do not propose to go through those salient points at this

19     moment unless it would assist Your Honours at this juncture.

20             JUDGE MERON:  I suggest that we let the counsel for the

21     Prosecution to continue.

22             MR. MISETIC:  Thank you, Mr. President.

23             MR. CROSS:  I'm obliged, Your Honours.  And the Prosecution

24     adopts its position set out in the filing to which I referred.

25             And thirdly, as I was saying Your Honour, this was far from a

Page 85

 1     victimless crime.  14.000 Krajina Serbs were dispossessed from Knin

 2     alone.  Civilian bodies were seen by witnesses lying in the streets and

 3     in the hospital, and widespread damage was done to civilian objects.

 4             Turning to my first point in detail, I shall use Knin as an

 5     example, and the Prosecution relies on its written submissions with

 6     respect to the other three towns.

 7             In the artillery attack on Knin, the HV did not discriminate

 8     between the lawful targets and the multitude of civilian objects which

 9     surrounded them.  The emphasise in the Judgement on particular impact

10     locations does not mean that the Judgement must be read as saying, These

11     were the only places that were struck.  In fact, the even distribution of

12     artillery rounds across Knin is implied by the Chamber's analysis and it

13     supports its conclusion.

14             First of all, the evidence in the trial record is clear that

15     there was no part of Knin which was not under the umbrella of the HV's

16     guns and rockets.  And in that respect, Your Honours can see Judgement

17     paragraph 1906, which refers to rounds striking in the north, the south,

18     and the east.  And indeed, Your Honours, those findings of particular

19     impact locations support that distribution of rounds hitting all over the

20     town.  Thus, rounds hit in the northern borders in a cemetery, and that's

21     in the Judgement at paragraph 1905; in the southern borders of the town,

22     in the field near the UN compound of which the Defence has discussed,

23     that's paragraph 1904; to the very east of the town, by the ECMM HQ, the

24     hospital, and a house known as "marking J," and that's in the Judgement

25     at paragraphs 1903 and 1905; and also in the centre and to the west of

Page 86

 1     town, and that's Judgement paragraphs 1899 and 1900, hitting both lawful

 2     targets, civilian objects and residential areas.

 3             Now the Chamber reasonably considered that these impacts were not

 4     accidents.  For example, the cemetery was at least 700 metres from a

 5     lawful target.  The hospital was at least 450 metres from a lawful

 6     target.  And that's in the Judgement at paragraph 1905.

 7             Likewise, the ECMM HQ was 300 metres from a lawful target.  1903.

 8             Nothing in this appeal affects the findings by the Chamber about

 9     those particular impact locations.  And they remain significant, whatever

10     method is used to evaluate them.  Given all of the evidence considered by

11     the Chamber, neither Rajcic's evidence, nor any other evidence in the

12     record, raised a reasonable doubt about the meaning of Gotovina's attack

13     order.

14             Second, Your Honours, turning to the point raised by my learned

15     friends about ratios and statistics.  The ratio, as Mr. Stringer said, of

16     impacts on lawful targets or within 200 metres of lawful targets compared

17     to impacts on civilian objects or outside 200 metres from lawful targets

18     also demands the conclusion that the HV fired indiscriminately.  Of

19     course, no Chamber could attempt to identify all of the impact locations

20     in an attack of this scale, but the fact that almost 50 per cent of the

21     impact locations are more than 200 metres from a lawful target is

22     significant.  This is consistent with all the other evidence, bearing in

23     mind the incomplete nature of the artillery logs.  And that fact is

24     referred to in the Judgement at paragraphs 1267, 1367, and 1368.

25             Moreover, Your Honours, the findings in the Judgement supporting

Page 87

 1     the 50 per cent analysis are set out in the annex to our response brief.

 2             Now, Gotovina has said, in his brief at paragraph 3, that the

 3     Chamber presumed that about 95 per cent of the artillery fire hit lawful

 4     targets, but there is no justification for that view in the Judgement.

 5     And given the weight of other evidence which supports the indiscriminate

 6     nature of the attack, the presumption of innocence did not require the

 7     Chamber to make such a finding.

 8             Thirdly, Your Honour, the particular impact locations are only

 9     part of the story.  The reality of the situation in Knin was graver than

10     these individual episodes imply.  More widespread.  More hazardous for

11     the civilian population.  Sergeant Dreyer, who marked Exhibits P78 and

12     P79 to where he had seen artillery impacts, said this:

13             "What I should have done is I should have taken a big pen and

14     drawn a circle right around Knin and not specify and say:  This is the

15     area of impact.  Because that was the area of impact.  Knin itself, in

16     all directions ..."

17             And that's in the transcript at page 1741.

18             As Mr. Stringer briefly mentioned, eye-witnesses in Knin agreed

19     that artillery fire was evenly spread across the town and not especially

20     concentrated on those military targets of which the witnesses were aware,

21     and the Chamber reasonably took this evidence into account.  These

22     witnesses included at least six either serving or retired professional

23     military officers.  And Your Honours can find that in the Judgement at

24     paragraphs 1278, 1287, 1295 to 1297, 1311, and 1336.

25             Colonel Leslie said, at page 1979 of the transcript:

Page 88

 1             "The fire was, to put it in laymen's terms, all over the place."

 2             Moreover, even when the two-day long attack was in its relatively

 3     early stages, its indiscriminate nature was patently obvious.  And I

 4     refer Your Honours on that point to Exhibit P331.

 5             Your Honours, may I continue?  I'm obliged.

 6             The artillery fire itself prompted General Forand immediately to

 7     send a letter of protest to Gotovina and the HV commanders, which is in

 8     evidence at P83.

 9             Your Honours, I shall now turn to address the second question

10     from the addendum more directly.

11             Your Honours asked whether the Chamber's conclusion about impact

12     locations should be upheld if the 200-metre margin was erroneous.  And

13     our answer simply is:  Yes.

14             The 200-metre margin did form part of the Chamber's analysis, as

15     described by Mr. Stringer, but even so, although the margin was relevant

16     to the Chamber's finding of unlawful attack, it was not necessary to it.

17     Therefore, even if the 200-metre margin of error is removed from the

18     Chamber's analysis, Your Honours can still uphold the finding of unlawful

19     attack.

20             First, on the basis of the comprehensive body of evidence

21     described by Mr. Stringer.  Second, on the basis that if Gotovina can

22     show all of the impact locations are explained by the margin of error,

23     then those weapons were inherently unsuitable for use in an urban

24     environment.  And, thirdly, on the basis of the disproportionate nature

25     of the HV artillery fire.

Page 89

 1             Since Mr. Stringer has already addressed the first point, I will

 2     confine my submissions to the second and briefly also to the third.

 3             Your Honours have heard Gotovina assert today that a 400-metre

 4     margin of error would have been a reasonable finding for the Chamber

 5     rather than 200 metres.  But even such a margin of error would not

 6     undermine the Chamber's finding.  For example, the impacts by the

 7     cemetery, 700 metres from a lawful target, and the hospital, 450 metres

 8     from a lawful target, still could not be explained as accidental,

 9     collateral damage.  Indeed, to undermine the Chamber's findings that the

10     impact locations could not have been accidental, Your Honours would need

11     to be satisfied that a 700-metre margin of error was applicable.  And

12     Gotovina has pointed to nothing in the record which supports such a

13     margin, much less that the Chamber was unreasonable for not considering

14     it.

15             Moreover, even if the evidence were to show that the HV

16     artillery, in fact, had a 700-metre margin of error or even a greater

17     margin of error still, then that factor should be taken into account in

18     assessing the intent behind the attack.  The HV gunners were trained and

19     experienced - that's in the Judgement at paragraph 1183 - and they and

20     their commanders would have known the error of their weapons.  Use of

21     such inaccurate weapons in the context of these four towns would strongly

22     indicate the intent to treat the whole towns as targets.  And,

23     Your Honours, the Appeals Chamber has expressly recognised such an

24     approach in the case of Martic, and that's in the Martic Appeals

25     Judgement at paragraphs 260 to 261; in the Strugar Appeal Judgement at

Page 90

 1     paragraph 275; and in the Galic Appeal Judgement at paragraph 132.

 2             Further still, in the footnote to which my learned friend's

 3     referred, the Chamber itself recognised the application of this approach.

 4     So in footnote 932 of its Judgement, volume 2, the Chamber said of its

 5     findings about particular impact locations:

 6             "Had these impacts which were at a distance of up to 700 metres

 7     from artillery targets been the result of the inaccuracy of the

 8     weapons ... that would require a further consideration of whether such

 9     inaccurate weaponry can be used in the context of an artillery attack on

10     specific targets within a town."

11             This footnote, Your Honours, was not an acknowledgment that the

12     Chamber could not determine the proper margin of error, but, rather, an

13     acknowledgment that if the margin of error was much greater than it

14     appreciated it to be, then it would also have taken that into account in

15     its analysis.

16             Finally, Your Honours, the Chamber's approach to proportionality

17     would also support its overall finding even if the 200-metre margin was

18     unreasonable.

19             The Chamber expressly regarded the three separate attacks on

20     Martic's location, which it found to be disproportionate, as "an

21     indicative example."  And that's at footnote 935 of volume 2 of the

22     Judgement.  The Chamber also made all the necessary findings to show that

23     the other attacks on Knin could also have been disproportionate.  Since

24     all of the targets were in the vicinity of civilians and civilian

25     objects, the Chamber's finding of, and I quote, "a significant risk of a

Page 91

 1     high number of civilian casualties," and that's in paragraph 1910 of the

 2     Judgement, "related equally to them all."

 3             As for the limited military advantage, the Chamber expressly

 4     noted that the targets themselves were physical structures, they were

 5     buildings, and the number of troops present in Knin was only about 150.

 6     And that's in the Judgement at paragraphs 1225 and 1397.

 7             And also, Your Honour, in the context of Judge Meron's question

 8     earlier about targets of opportunity, in paragraph 1908 where the Chamber

 9     considered this with respect to Knin, they again noted that even if there

10     were observers, such that they could have been engaged, the number of

11     those targets within the city on the evidence was not sufficient for such

12     action.

13             These targets taken together certainly did not require at least

14     900 rounds of artillery fire, fired for 26 hours out of a 31-hour period,

15     using both rockets and guns.  Such attacks were disproportionate.  And

16     for some of the relevant factors in this analysis, Your Honours can see,

17     for example, the Judgement at paragraph 1184, and also the report of

18     Prosecution expert witness Konings, which is Exhibit P1260.  That's in

19     fact the addendum to his report.

20             Your Honours, in the interests of time, I will now touch very

21     briefly on the aspect of victims and then I shall defer to my learned

22     friend Ms. Baig.

23             As I have already said, the town of Knin contained approximately

24     15.000 civilians on the morning of the 4th of August, and that's in the

25     Judgement at paragraphs 1233, 1577, and 1747.  But by the time the HV

Page 92

 1     troops arrived on the 5th of August, just a day and a half later, during

 2     which time the shelling attack was in progress, approximately 14.000 of

 3     these 15.000 people had fled their homes in terror as result of the

 4     attack.  And that's in the Judgement at paragraph 1743 and 1747.  And all

 5     of these individuals are victims in the sense that they're affected by

 6     the shelling.

 7             With regard to findings about civilian deaths or injury or damage

 8     to particular civilian objects, as Mr. Stringer has said, Gotovina and

 9     Markac were charged with persecution by way of unlawful attack, which has

10     no results requirement, rather than unlawful attack itself.  But the fact

11     that the Chamber didn't make findings on the point doesn't mean that it

12     did not hear evidence on the point.  At least seven eye-witnesses

13     referred to seeing what they thought were the bodies of civilians killed

14     in Knin in that period.  And Your Honours can find those references at

15     paragraphs 1287, 1291 to 1292, 1302, 1307, 1333, 1336, and 1390 of the

16     Judgement.

17             Likewise, Your Honours, at least nine eye-witnesses testified

18     about the widespread damage done to civilian objects in the town.  And

19     Your Honours can find that in the Judgement also, roughly between 1276

20     and 1349.

21             Many of these witnesses did note that the damage done was less

22     than they might have expected from the violence of the shelling that they

23     had experienced, but this is consistent with the evidence of Prosecution

24     expert witness Konings as to the effects of the kinds of munitions that

25     were used.  And Your Honours can find that in Exhibits P1259 and P1260.

Page 93

 1             Lieutenant Liborius, who was an eye-witness, also noted that the

 2     use of rockets against Knin would have very limited effect against

 3     targets such as buildings.  He said:

 4             "The use of especially multiple rocket systems of modest calibre

 5     appeared to me to terrify people as this weapon has no real effect on

 6     hard targets."

 7             And, Your Honours --

 8             THE INTERPRETER:  The speaker is kindly requested to slow down in

 9     order to facilitate the simultaneous interpretation.

10             MR. CROSS:  Thank you.  And, Your Honours, rockets accounted for

11     almost 45 per cent of the rounds fired in the unlawful attack.  And

12     that's in the Judgement at paragraphs 1263 to 1265.

13             On my very final point, Your Honours, the damage assessments

14     carried out by some international observers, as Mr. Gotovina referred,

15     were in many cases significantly underestimating the extent of the

16     damage.  These matters were fully and reasonably addressed in the

17     Judgement and the Prosecution relies in that respect on the arguments set

18     out in its response brief at paragraphs 46 to 49.

19             Your Honours, unless Your Honours have any further questions,

20     this concludes my submissions.

21             JUDGE MERON:  So thank you.

22             Please proceed.

23             MS. BAIG:  Good morning, Your Honours.

24             I'm responding to question 4.  In doing so, I will touch very

25     briefly on a few points raised by the Appellant in grounds 2, 3, and 4,

Page 94

 1     concerning deportation and joint criminal enterprise.

 2             Unless you have specific questions on these issues, the

 3     Prosecution would rely on its brief.

 4             In question 4, the Appeals Chamber has asked whether the

 5     Trial Chamber's findings that a JCE existed should be upheld if its

 6     findings -- that illegal artillery attacks took place is deemed erroneous

 7     because of errors resulting from the application of the margin of error.

 8             Your Honours, the Prosecution's short response to this is:  Yes.

 9     Because the JCE members intended these artillery attacks to cause the

10     deportation of the Serb civilian population from the Krajina.

11             Before I go on to explain this position in more detail, I'd like

12     first to clarify that the Prosecution is not suggesting the

13     criminalisation of legitimate warfare.  Nor is it upsetting the balance

14     between human protection and military necessity as was suggested this

15     morning.  In the hypothetical situation of a military commander who to

16     achieve a military objective launches an artillery attack against

17     military targets and this results in unforeseen and incidental civilian

18     flight, there could in that situation be no basis for a conviction for

19     deportation as a crime against humanity.  Such a commander would not have

20     the necessary intention required for that crime, nor would the action

21     form part of a widespread and systematic attack against the civilian

22     population.

23             But I must emphasise, Your Honours, that as much as the Defence

24     attempts to spin the Judgement towards that hypothetical, Gotovina is not

25     in the position of this hypothetical and innocent commander.  Instead,

Page 95

 1     Gotovina and his fellow JCE members shared the direct intention to deport

 2     using the artillery attack as the means to achieve this end, and that's

 3     found at paragraph 2314 of the Judgement.  As a result of the shelling,

 4     20.000 Serb civilians fled from the Krajina in a sudden and mass exodus.

 5     Croatian forces didn't just seek to defeat their military opposition to

 6     take control of the region.  They also aimed at a crime - emptying the

 7     land of its Serb habitants.  Harming the civilian population was an

 8     objective of the military operation.

 9             Gotovina's criminal convictions, including the Trial Chamber's

10     findings that a JCE existed, should therefore be upheld even if the

11     artillery attack findings are invalidated.  Overall, the operation was

12     still unlawful under the laws and customs of war because it was aimed at

13     achieving the expulsion of the civilian population.  This purpose is

14     expressly prohibited by basic principles of international humanitarian

15     law which undoubtedly form part of custom.  And I'll briefly touch on the

16     principles of distinction and humanity as well as the international

17     humanitarian provisions on deportation.

18             At its most basic, the principle of distinction requires the

19     parties to direct their military actions against military rather than

20     civilian objectives.  Examples of this provision can be found in

21     Articles 48, 51(2), 52(2) of Additional Protocol I, and Article 13(2) of

22     AP 2, as well as many others.  As the preamble of the St. Petersburg

23     Declaration of 1867 states:

24             "The only legitimate object which States should endeavour to

25     accomplish during war is to weaken the military forces of the enemy."

Page 96

 1             This principle is codified in Article 48 of Additional

 2     Protocol I, the basic rule concerning protection of the civilian

 3     population.  The parties to the conflict shall "direct their operations

 4     only against military objectives."  Operation Storm in contrast was

 5     directed against a civilian objective - to achieve the removal of the

 6     civilian population.

 7             International humanitarian law, of course, also encompasses the

 8     principle of humanity which demands that the parties limit, as much as

 9     possible, the effects of war on the civilian population.  Common

10     Article 3 to the Geneva Convention, for example, prohibits deportations

11     and transfers as violence to life and person and outrages upon personal

12     dignity.  Again, Operation Storm violated this principle by intentionally

13     subjecting the civilian population to these harms through deportation.

14             Moreover, forcible movement of civilians is strictly regulated by

15     international humanitarian law, for example, Article 49 of

16     Geneva Convention 4 and Article 17 of AP 2, and allowed only under the

17     most stringent conditions, none of which were satisfied in this case.

18     Generally speaking, the population can only be moved to ensure its

19     security or for imperative military reasons.  The move can only be

20     temporary, provision must be made for the safety and care of the

21     civilians.  Violent or arbitrary means or a lack of provision for health

22     and safety would in themselves make such transfers unlawful under IHL.

23             Thus, under IHL, the shelling in this operation was illegal not

24     only because it targeted whole towns as explained by my colleagues.  It

25     was also illegal under IHL because it was aimed at causing the

Page 97

 1     deportation of the Serb civilian population.  A further violation of the

 2     principles of distinction and humanity.  In sum, it wasn't only the means

 3     that was illegal.  So too was the intended result.  More importantly for

 4     this case, there can be no question that this amounted to deportation as

 5     a crime against humanity, which I will move to shortly.

 6             In many cases, Your Honour, if it turns out that the accused

 7     targeted military objectives, then it might be very difficult to infer

 8     any criminal intention.  In this case, however, the JCE members illegal

 9     objective for the military operation was clear.  We have a transcript of

10     the JCE members planning their criminal operation.  The JCE members then

11     committed the crime of deportation by shelling the towns and causing the

12     mass exodus of 20.000 Krajina Serbs.  Immediately afterwards, Tudjman,

13     the president and supreme commander of the armed forces and a key member

14     of the JCE, bragged publicly about the efficiency of the criminal

15     expulsion.  Gotovina and others encouraged a crime wave against Serbs --

16     remaining Serbs and their property, causing further deportations.

17     Finally, to ensure that the Serbs who had left could not return to the

18     Krajina, members of the JCE instituted discriminatory laws and policies

19     aimed at preventing their return to Croatia and transferring their

20     property to Croats in accordance with the Croatian leadership's

21     demographic re-colonisation policy.

22             Taking these findings as a whole, it's clear that the JCE member,

23     including Gotovina, shared the intent to deport the civilian population

24     and then executed this common criminal purpose.  This was not a military

25     attack that led to an unintended consequence as Gotovina would have you

Page 98

 1     believe.  It was a crime committed purposefully, in tandem with a

 2     military operation.

 3             Let me briefly take you to a few of the details, turning first to

 4     the Brioni meeting.

 5             The Trial Chamber found that in the context of a long ethnic

 6     struggle between Serbs and Croats in the Krajina region, JCE members were

 7     planning an attack aimed at expelling the Serb population from the

 8     Krajina and then keeping them out.  This is supported by the transcript

 9     of the meeting.  As Mr. Stringer has already mentioned, Gotovina suggests

10     that if the HV continued pressure, then "for some time to come, there

11     won't be so many civilians, just those who have to stay, who have no

12     possibility of leaving."

13             And that's at P461, page 15, discussed in the Judgement at

14     paragraph 2304.

15             Gotovina's comments confirm that he knew that an artillery attack

16     would cause civilian flight and keep civilians out.  Gotovina's attempt

17     to isolate this comment as an innocent prediction is untenable in the

18     context of the transcript of the whole -- as a whole, and in the context

19     of the rest of the evidential record which shows that this was the intent

20     behind the operation.  Equally, his repeated claims that he was not

21     talking specifically about Serbs must be rejected in light of the

22     ethnically charged context.

23             Moreover, the Chamber properly rejected the Defence argument that

24     this exchange concerned moving civilians out of harm's way, explicitly

25     finding that this was not a reasonable interpretation.  It noted that the

Page 99

 1     participants made no reference whatsoever as to how the military

 2     operation could be carried out in a way to minimise civilian harm.

 3     Instead the focus of the discussion was on creating a pretext for using

 4     the artillery and engaging artillery for "complete demoralisation."

 5     Gotovina confirmed that Knin could be destroyed in its entirety in a few

 6     hours.

 7             Statements of the other participants demonstrate that the JCE

 8     members shared this intent to deport, that the objective of the operation

 9     was to cleanse the area.  For example, Tudjman proposed using propaganda

10     to increase civilian chaos and encourage additional civilian departures.

11     Leaflets in which they would pretend to encourage Serbs to stay, by

12     "ostensibly" guaranteeing their rights.  The Chamber gave very detailed

13     consideration to the parties' submissions, particularly concerning the

14     translation and the correct interpretation of this particular exchange,

15     finding that it was an "expression of the true intent to show Serbs out

16     but at the same time giving them the impression that they could stay."

17             And that's at paragraph 1994 of the Judgement.

18             The Chamber found that within days of this discussion, Gotovina's

19     comments that the only remaining Serbs would be the ones who couldn't

20     leave became a reality.  Gotovina planned, ordered and conducted the

21     artillery attack aimed at cleansing the area of its Serb population.

22     Whether or not the artillery attack also targeted military objectives,

23     the Chamber found that as a result of Operation Storm shelling, "large

24     parts of the civilian population of Knin, Benkovac, Obrovac, and Gracac,

25     amounting to at least 20.000 people, were forcibly displaced from their

Page 100

 1     homes and fled across the border to Bosnia-Herzegovina and Serbia."

 2             At 2305 of the Judgement.

 3             This was exactly the result that was planned during the meeting.

 4             Gotovina's contributions to the common criminal purpose do not

 5     depend on the artillery attack being found unlawful in and of itself, and

 6     I remind you that a JCE contribution need not be criminal per se.  And

 7     you can find that at the Krajisnik Appeals Judgement, paragraph 215.

 8             I should point out here that the issue of lawful or unlawful

 9     targeting has no effect on the causation of the mass exodus.  Deportation

10     as a crime against humanity does not require that the underlying means of

11     carrying out the deportation is unlawful in and of itself.  For example,

12     forcible displacement crimes have been carried out through hate speech,

13     propaganda, and the driving of buses, which may not be criminal per se.

14     In this case, the evidence proves that the shelling was the cause of the

15     mass exodus.  Witness after witness confirmed that the civilians left the

16     Krajina because of the shelling.

17             And to take up the issue raised by my colleagues this morning, I

18     would point you briefly to Witnesses 6 and 54 as examples of witnesses

19     who said specifically that they left because of the shelling.  There are

20     many more in the transcripts.

21             And they left because of the shelling, Your Honours, not because

22     of any evacuation order.  My colleague Ingrid Elliott will discuss the

23     evacuation in more detail in relation to Markac's appeal this afternoon.

24     But the evacuation order came far too late in the afternoon, once the

25     civilians were also already fleeing, if it was even distributed.  And

Page 101

 1     there is considerable evidence and findings about the evacuation order

 2     coming far too late and questions about its dissemination that

 3     Ms. Elliott will discuss.  Regardless of the legal characterization of

 4     the shellings, Your Honour, it was still the actus reus of the

 5     deportation.

 6             And what of the few Serbs that Gotovina mentioned at Brioni who

 7     had no possibility of leaving?  Well, they were subjected to further

 8     abuse, including additional persecutions, murders, inhumane acts, cruel

 9     treatment, unlawful detentions, wanton destruction, and plunder.  These

10     crimes caused further deportations.  The Chamber found that in addition

11     to ordering and commanding Operation Storm, Gotovina also contributed to

12     the JCE by failing to make a serious effort to prevent and follow up on

13     crimes committed by his subordinates against the Serb civilians and Serb

14     property.

15             JUDGE MERON:  You might be going a bit too fast for our

16     interpreters.

17             MS. BAIG:  I'm sorry, I have -- I didn't hear that.  I apologise.

18             So the Chamber found that Gotovina also contributed to the JCE by

19     failing to make a serious effort to prevent and follow up on crimes

20     committed by his subordinates against the Serb civilians and Serb

21     property after Operation Storm.

22             This failure further confirms Gotovina's intentions.  Instead of

23     taking the available measures to prevent or punish, Gotovina excused his

24     subordinates' crimes by claiming that these were acts of understandable

25     revenge.  These actions are inconsistent with Gotovina's claims of

Page 102

 1     innocent conduct or innocent intention.

 2             Finally, Your Honours, before I conclude, I should emphasise that

 3     if the Chamber were to find that the JCE conviction was unsustainable,

 4     this would require the Chamber to make further findings on the other

 5     modes of liability as the Appeals Chamber did in the Dragomir Milosevic

 6     case.  For example, for the reasons that I've just discussed, Gotovina

 7     would in any event be guilty of aiding and abetting the crimes of the JCE

 8     because he knowingly made a substantial contribution to them.  Likewise,

 9     the Chamber would have to consider Gotovina's criminal responsibility as

10     an aider and abettor or instigator and under the doctrine of superior

11     responsibility for the follow-on crimes committed after Operation Storm.

12             To wrap up the Prosecution's response on question 4,

13     Your Honours, even if the Appeals Chamber finds, first, that the

14     Trial Chamber erred applying the margin of error, then that this affects

15     the Trial Chamber's conclusion about impact sites and that this leads to

16     a reversal of the Chamber's findings concerning the illegality of the

17     artillery attacks themselves, the Chamber's finding that Gotovina is

18     guilty of participating in a JCE to permanently remove the Serb civilian

19     population from the Krajina should be upheld.  Gotovina and his fellow

20     JCE members shared the common criminal purpose to deport of civilian --

21     the Serb civilian population from the Krajina and carried out that

22     purpose through the shelling attack aimed at harming the civilian

23     population.

24             Moreover, Your Honours, once one looks at Gotovina's illegal

25     order to target the whole towns, his subordinates' orders that repeat

Page 103

 1     this down -- down the chain of command in similar terms, the HV reports

 2     back up the chain of command that towns in general had been shelled, the

 3     eye-witness accounts of the attack on those towns, and the effect of the

 4     shelling, this provides additional confirmation of the Trial Chamber's

 5     convictions.

 6             Your Honours, may I just wrap up with a final paragraph?

 7             Your Honours, Gotovina shared the common criminal purpose of the

 8     joint criminal enterprise to permanently remove the Serb civilian

 9     population from the Krajina.  To fulfil this common criminal objective,

10     he ordered the forces under his command to treat whole towns as military

11     targets and followed through with an illegal attack against civilians and

12     civilian objects.  Subsequently, he failed to prevent or punish his

13     subordinates for committing crimes against the remaining Serbs and their

14     property.  As a result of their concerted efforts, some 20.000

15     Krajina Serbs were forcibly displaced.  Many others were killed, injured,

16     and suffered damage to their -- and suffered damage to their homes and

17     property in the aftermath of the operation.

18             Gotovina was properly convicted by the Trial Chamber.  He has

19     failed to show any legal error invalidating the verdict or any factual

20     error occasioning a miscarriage of justice, and his appeal should be

21     dismissed in its entirety.

22             JUDGE MERON:  Thank you.  We will now adjourn --

23             MR. JONES:  Your Honour --

24             JUDGE MERON:  -- until 12 --

25             MR. JONES:  Mr. President, sorry, I have an objection.  I waited

Page 104

 1     until Ms. Baig had finished, but it's simply this, if I may.  The

 2     Scheduling Order envisages that the Prosecution to our submissions,

 3     respond to our submissions in the afternoon.  Now they can't -- as

 4     Ms. Baig has twice indicated, she says, We will deal in detail with the

 5     evacuation orders in the afternoon in the response.  Well, the response

 6     is going to respond to our oral submissions.  We don't plan to deal with

 7     evacuation orders.  And so it would be improper for the Prosecution to

 8     reserve the right to make further submissions in effect in response to

 9     Gotovina's appeal in -- under the heading of response to our submissions.

10     That would be improper, and so I will object if the Prosecution tries to

11     use their slot for responding to us in fact to respond to Mr. Gotovina.

12     That would not be right.

13             JUDGE MERON:  I take note of your point.  Please do remember that

14     I myself asked a question about evacuation orders, to which they had to

15     respond --

16             MR. JONES:  Yes, but they won't --

17             JUDGE MERON:  -- but your point --

18             MR. JONES:  We won't --

19             JUDGE MERON:  Your point is well taken.

20             MR. JONES:  I'm obliged.

21             MS. BAIG:  Mr. President, just to mention also that the

22     evacuation order is also raised by Markac's appeal more fully and it will

23     be discussed there.  Thank you.

24             MR. JONES:  But not our oral submissions.  This is the chance to

25     respond to oral submissions.

Page 105

 1             JUDGE MERON:  I think that we will let it go as it is.  The Court

 2     has listened to the argument and will be fair in their evaluation and

 3     assessment, I can assure you.

 4             Okay.  12.45.

 5                           --- Recess taken at 12.31 p.m.

 6                           --- On resuming at 12.46 p.m.

 7             JUDGE MERON:  Please be seated.

 8             Reply for Mr. Gotovina.  30 minutes.

 9             MR. MISETIC:  Thank you, Mr. President.

10             In reply, let me start my remarks, Mr. President, by noting

11     something that must be noted by the Appeals Chamber as well, and that is

12     the dramatic change in the Prosecution's case from its pre-trial brief to

13     its remarks today.

14             We, as Defence counsel, we must admit, are a bit flabbergasted at

15     how we have had to sometimes try this case as if we were trying to catch

16     a butterfly, and that is trying to pin down the Prosecution on what its

17     theory of the shelling case is.  This started out in the pre-trial brief

18     as a case of almost, per se, unlawfulness of shelling by the firing of

19     artillery on towns that contained no military objectives, and today,

20     after -- through all the years of shifting theories, it went to

21     indiscriminate attacks and then use of weapons that did not respect the

22     principle of distinction, and ultimately, today we are discussing whether

23     the fire on lawful military objectives was the act of deportation that

24     caused civilian flight.

25             That should reveal something to the Appeals Chamber and I note

Page 106

 1     that that is the first time the Prosecution has ever raised that argument

 2     in this case.

 3             That should tell you something about the evidence in this case

 4     and about the strength of the Prosecution's case.

 5             The second thing that you should note is that the Prosecution in

 6     its presentation virtually, although it made the pro forma defences of

 7     the Trial Judgement, spent most of its time abandoning the

 8     Trial Chamber's reasoning and adopting brand new reasoning.

 9             For example, whereas the Trial Chamber drew its inferences of

10     criminal mens rea from the actus reus having been allegedly proven, the

11     Prosecution now says, well, if we haven't proven the actus reus, then we

12     ask you to infer from the proven criminal mens rea that there was an

13     intent to deport and therefore you should start looking at whether the

14     targeting of lawful military objectives constitutes the crime of

15     deportation.

16             This morning we went item by item, and we will not repeat

17     ourselves, about how the Trial Chamber inferred criminal intent into HV

18     artillery reports, how it infer -- how it rejected Marko Rajcic's

19     testimony from its finding of the commission of an unlawful attack.

20             The Prosecution did not address any of the arguments we raised

21     this morning.

22             The second issue is the Prosecution now argues disproportionate

23     attack and that that somehow is consistent with the Trial Chamber's

24     findings, despite the fact that the Trial Chamber in footnotes 932 and

25     935 expressly said that it would not consider the proportionality of the

Page 107

 1     overall attack except for the Martic incident.

 2             Third, the Prosecution now argues that MBRLs were improper to use

 3     on the towns, despite the express finding of the Trial Chamber to the

 4     contrary at paragraph 1897 of the Judgement.

 5             Fourth, and perhaps most importantly, although all of these

 6     points are important, this argument about firing on military objectives

 7     with an unlawful purpose is inconsistent with the Trial Chamber's own

 8     findings.  And I draw the Appeals Chamber's attention to paragraphs 1899

 9     and 1900, 1901, 1902, and that's just for Knin.

10             The last sentence of all those paragraphs say:

11             "In light of these findings, the Trial Chamber considers that the

12     evidence allows for the reasonable interpretation that the HV may have

13     determined in good faith that firing," in this case, "at the railway

14     station and post office would have offered a definite military

15     advantage."

16             The Trial Chamber then in the subsequent paragraphs again says

17     that the identification of these targets in Knin, Benkovac, Obrovac, and

18     Gracac, the Trial Chamber found there was sufficient basis in the

19     evidence to conclude that they were selected in good faith.

20             JUDGE MERON:  My colleague Judge Guney has a question.

21             JUDGE GUNEY: [No interpretation]

22             MR. MISETIC:  There's no interpretation.  We don't have

23     interpretation.

24             JUDGE MERON:  You probably have to change the channel?  No, you

25     are okay.

Page 108

 1             MR. MISETIC:  The LiveNote also doesn't have it, the transcript.

 2             JUDGE MERON:  Can we try again?

 3             JUDGE GUNEY: [No interpretation]

 4             JUDGE MERON:  Are you having interpretation?

 5             MR. MISETIC:  No.  And the court reporter is not either,

 6     Mr. President.

 7             JUDGE MERON:  So we stop for a second and address this issue Just

 8     wait one second -- or you will ask in English? [Microphone not activated]

 9             JUDGE GUNEY: [Interpretation] I repeat my question.

10             I'd like to know to what extent it's been unreasonable for a

11     Trial Chamber to infer the civilian character of areas where there were

12     no military targets, since the civilian character seemed to have been --

13     may have been induced without any evidence to support it.

14             Should I repeat my question?

15             MR. MISETIC:  Yes, please, Your Honour.

16             JUDGE GUNEY: [Interpretation] How, and in what was it

17     unreasonable, for a Trial Chamber to infer the civilian character of

18     areas where there were no military objectives, military targets?  The

19     civilian character may be -- may the civilian character be inferred from

20     a general statement without any evidence to support it?

21             MR. MISETIC:  Your Honour, it was completely unreasonable for

22     several reasons.

23             First, as we noted this morning, the Blaskic Appeals

24     Chamber Judgement says that the Prosecution bears the burden of proving

25     that a "object was indeed dedicated to civilian purposes."

Page 109

 1             And the Appeals Chamber there rejected the -- what otherwise in

 2     Additional Protocol I is a presumption of civilian-ness unless the

 3     military nature of a target has been established.  In a criminal case,

 4     the Prosecution bears the burden of proofing that fact.

 5             The second reason it's unreasonable is the Trial Chamber itself

 6     at Trial Judgement paragraph 1267 said that the -- concludes that the

 7     Croatian army fired on more targets in Knin than it is aware of based on

 8     the evidence available to the Chamber.

 9             The Trial Chamber thus assumed either that there couldn't have

10     been additional military objectives in those "civilian areas" or else

11     assumed that those targets, if they were within 200 metres, were civilian

12     targets, i.e., unlawful targets of artillery fire.

13             So by simply drawing inferences of civilian areas based

14     exclusively on whether the area is 200 metres away from a military

15     objective tells us nothing about that particular area.  And we use the

16     example of the railway fuel storage in Knin.  The Trial Chamber found

17     that the railway station was a legitimate military objective but then

18     found that the fuel used for the railway system was civilian because the

19     station was 200 metres away from an objective -- objective that the

20     Chamber could find in the evidence.  Whether the railway fuel was being

21     used for a military purpose in support of the railway system that was a

22     military objective is a question the Trial Chamber didn't even attempt to

23     answer because the Prosecution never introduced any evidence of civilian

24     purpose of any particular area because its proposition at the beginning

25     of the trial was the entire town is a civilian zone and there are no

Page 110

 1     military objectives in the town.

 2             JUDGE GUNEY: [No interpretation]

 3             MR. MISETIC:  Thank you, Your Honour.

 4             To complete the point that I was making earlier, in terms of the

 5     Trial Chamber's findings that these targets were identified in good faith

 6     as offering a military advantage, the Prosecution's new case would

 7     require that the HV in fact identify those objectives in bad faith.

 8     Because if the targeting of an objective has as its real purpose to

 9     target the civilian population, then by definition that cannot be good

10     faith and it is by definition bad faith identifying of military

11     objectives.  So the Prosecution is asking you to make a series of

12     findings in conflict with the Trial Chamber's own.  And, unfortunately,

13     we do not have time in 30 minutes to go through each of the military

14     objectives that was established at trial as to why they offered a

15     significant military advantage to the Croatian army in its effort to

16     liberate its own territory and to seize the capital of a break-away Serb

17     entity.

18             Next, in addressing some comments that were made about

19     Mr. Galbraith and the Brioni transcript, the Prosecution talks about

20     Mr. Galbraith's views of President Tudjman but ignores the more important

21     issue of Ambassador Galbraith's conclusions about Operation Storm.

22                           [Appeals Chamber confers]

23             JUDGE MERON:  Excuse me just a moment.

24                           [Appeals Chamber confers]

25             JUDGE MERON:  I am sorry, but the Bench had to consult and now

Page 111

 1     you can proceed, say something about the procedure with regard to the

 2     point you have raised earlier with regard to the alleged novelty of the

 3     theory advanced today by the Prosecution and how we deal with it.

 4             MR. MISETIC:  Thank you, Mr. President.

 5             The next issue to address is the attempt by the Prosecution to

 6     inject Ambassador Galbraith's views and whatever his views of

 7     President Tudjman were he had very specific views of what happened in

 8     Operation Storm, and I cite the Appeals Chamber to the trial transcript

 9     of his testimony at 5055 to 5056 under questioning by the Presiding Judge

10     of the Trial Chamber:

11             "First of all, Mr. Galbraith, do you consider the purpose of

12     operation form primarily to expel the Serbs?"

13             Answer:

14             "No, not all."

15             Judge Orie:

16             "Do you consider that this was or could be a side-effect of

17     militarily taking over the Krajina territory and have it within Croatia

18     again?"

19             His answer:

20             "I did not consider that the expulsion of the Serbs would a side

21     effect but I did consider that the departure of the Serbs would be a

22     side-effect."

23             And that is the distinction that we have consistently argued at

24     trial and in our briefing here, and which the Prosecution conveniently

25     ignores.

Page 112

 1             The participants at the Brioni meeting, as noted in our brief,

 2     had 60 days prior the experience of the events of Western Slavonia where

 3     the entire Serb civilian population left and it was clear based on

 4     investigations and indeed the conclusions of the Secretary-General of the

 5     United Nations that they theft for reasons unrelated to any unlawful

 6     contact by the HV.

 7             The Brioni participants certainly would have been aware of that

 8     possibility, indeed likelihood, that a similar thing might take place if

 9     they try to liberate their territory in Sectors North and South as well.

10     That is what the discussion at Brioni is about.

11             Furthermore, the Trial Chamber itself, as we've noted several

12     times today, found that the Serb civilians left everywhere but the four

13     towns for reasons unrelated to any unlawful contact.  So were the Brioni

14     participants talking about all of those civilians leaving who did leave

15     for reasons related to any unlawful contact as found by the Trial

16     Chamber?  Or were they talking about implying that they should target

17     civilians in four towns to force them to leave?

18             And the question arises:  How reasonable is it that if Serb

19     civilians had evacuated Western Slavonia 60 days earlier and had

20     evacuated the entire Krajina except for four towns for reasons unrelated

21     to any unlawful conduct by the HV, that they would have stayed in the

22     four towns but for the illegal conduct of the HV, or, as we heard this

23     morning, the lawful targeting by the HV intended to force them to flee.

24             We submit to Your Honours there is no basis for that inference in

25     the Brioni transcript.

Page 113

 1             They mention General Gotovina's comment at Brioni, and, again, so

 2     I don't repeat myself, General Gotovina's comment was perfectly accurate

 3     as found by the Trial Chamber in all places but the four towns.  And you

 4     have military commanders considering, What are we to do if the civilian

 5     population decides to leave en masse as they had done 60 days later?

 6     That is the discussion.  And the conclusion is:  Let the civilians leave.

 7     What is the alternative?  To trap civilians in a war zone?  To force

 8     their army to continue to fight for their civilians?

 9             Turning again to another issue regarding these 95 per cent of

10     rounds.  The Prosecution twists our position and we need to clarify this.

11     We have pointed the Appeals Chamber to a chart that was submitted on the

12     7th of October to the Appeals Chamber in a filing.  What we are saying is

13     the Trial Chamber found that 95 per cent of all projectiles were fired at

14     military objectives.

15             The second question that then arises which the straw man that the

16     Prosecution was addressing this morning is, where did those projectiles

17     land and we only know where a certain number landed.  The Prosecution --

18     it is the Prosecution's case, whether they acknowledge it or not, that

19     every one of those rounds fired at a military objective, i.e., 850 out of

20     the 900 rounds, must have landed within 200 metres.  Why do we say that?

21     Because they say and they are defending the 200-metre rule this morning.

22     And the 200-metre rule says there can be no explanation for a shell

23     falling outside of 200 metres except if the Croatian army intended to

24     fire outside of that 200-metre radius.  The Prosecution says there can be

25     no inherently indiscriminate nature of the weapons if the 200-metre

Page 114

 1     survives.  Therefore, if the Croatian army intended to fire 850 rounds at

 2     military objectives, then the Trial Chamber's case and the Prosecution's

 3     defence of that case must mean that every one of those rounds fell within

 4     200 metres.

 5             The Prosecution discusses General Gotovina's order as well as the

 6     fact that the order was repeated by subordinates.  Again, the

 7     Trial Chamber's approach here was to reject Marko Rajcic's testimony on

 8     the basis of its conclusions about impact locations and we need not

 9     repeat our positions already argued this morning.  But if Marko Rajcic's

10     testimony was corroborated and correct and could not be excluded on the

11     basis of findings on impact areas, then all we are left is a lawful order

12     that was repeated down the chain of command.

13             We noted and there was some discussion by my learned friend,

14     Mr. Cross, this morning, about one shell that landed at 700 metres away.

15     As I noted this morning, and Mr. Cross did not contest, five out of 900

16     landed beyond the margin of error of the weapons system.  Why did one

17     fall at 700 metres?  We're not saying that margin of error is the only

18     reason that a shell might fall beyond the margin of error of a weapons

19     system.  As I noted to Judge Guney there were additional targets in the

20     town which the Trial Chamber confirmed at paragraph 1267.  Was one of

21     those targets by the cemetery which was 700 metes away from another

22     military objectively?  The Trial Chamber doesn't answer that question.

23             Were there targets of opportunity?  The Trial Chamber, again,

24     found, no, but that conclusion, as we have noted in our briefs, was

25     unreasonable.

Page 115

 1             Concerning casualties -- excuse me, let me address one other

 2     point.

 3             The Prosecution says that the Trial Chamber considered Konings'

 4     testimony on range of error in establishing the 200-metre rule.  We

 5     pointed out this morning that Mr. Konings, as stated by the Trial Chamber

 6     in paragraph 1898, would have set the margin of error at 295 metres for a

 7     weapon T-155 at 14 and a half kilometres.  So how that could possibly

 8     corroborate the Trial Chamber's 200-metre finding is left unexplained by

 9     the Prosecution.

10             Concerning casualties, there was a reason that the Trial Chamber

11     made no finding that any person was killed by shelling.  And it is

12     certainly much more complex than was presented by Mr. Stringer this

13     morning about if somebody sees a body in the street that person must have

14     been killed by artillery.  First, there is the question of the

15     credibility of the witnesses and their statements, a fact that the

16     Trial Chamber does not explore in the Judgement.

17             Second, the Trial Chamber notes in paragraphs 1360 to 1364 that

18     it only had forensics for three persons alleged to have been killed in

19     Knin on 4 August and found that those forensics did not prove that anyone

20     had been killed by shelling.  Furthermore, and this is important, it is

21     18 years since Operation Storm.  We don't have anecdotally hearsay-wise

22     any news report of any family member or any human rights organisation or

23     anyone who claims to have lost a loved one in the shelling of Knin,

24     Benkovac, Obrovac, and Gracac.  These alleged bodies that were seen in

25     Knin, to this day, remain completely anonymous.

Page 116

 1             Finally, we note that Witness -- Prosecution witness Mira Grubor,

 2     at trial transcript 1418 and 1419 noted that in the entire southern

 3     Krajina the only hospital with a surgical ward was in Knin.  Whether

 4     bodies had been brought there from other locations is, of course, a

 5     question that was entirely possible and there was plenty evidence of ARSK

 6     forces moving wounded from front line positions into Knin town on that

 7     day, a finding that the Chamber made itself in the Trial Judgement.

 8     Accordingly, the Prosecution's assertion that if a body is seen, there

 9     can be no other explanation other than they were killed by shelling is

10     simply false.

11             Again, on this issue of disproportionate attack I also wish to

12     make the following note, and I know, Mr. President, you have indicated

13     you will address this or may address later, I'm not sure.  There is no

14     reference by the Prosecution of proportionality in any filing in this

15     case prior to the commencement of trial.  And to the extent that the

16     Prosecution wishes to argue that they're entitled to draw or adduce

17     evidence of proportionality in support of a theory of unlawful attack,

18     that must be laid out in a pre-trial brief to give the accused proper

19     notice and we cite the Appeals Chamber to the Prosecution's pre-trial

20     brief in the Galic case where they did exactly that.  And they provided

21     proper notice to Mr. Galic that he was being accused of direct attack,

22     including, through disproportionate attack.  That was not the case here.

23             A comment was made this morning that Witness 6 and Witness 54

24     said they left because of shelling.  That is completely inaccurate.  We

25     have pointed out in our reply brief in this case that the witnesses said,

Page 117

 1     first of all, these witnesses lived in the immediate vicinity of what the

 2     Chamber found to be legitimate military objectives.  So whether they were

 3     afraid of firing on a legitimate military objective, which is, we submit,

 4     a much more likely situation, or whether they were made afraid by three

 5     shells falling in an empty field more than a kilometre away from them was

 6     not explained by the Trial Chamber.  Moreover, these individuals

 7     expressly said, and we've cited that in our reply brief, that they only

 8     left to outlying parts of Knin and other villages, intending to return,

 9     but then decided to leave, i.e., cross a de jure or de facto border, to

10     leave the Krajina because others had started to depart after 6.00 p.m.,

11     i.e., after Martic issued the evacuation order.

12             There is no person -- and then we were given the general sweeping

13     statement "there are many other who testified to this," and of course

14     that has never been cited in any brief by the Prosecution and nor is it

15     identified in their comments today.

16             Speaking of Knin now.

17             Accordingly, we have no known victims, no hearsay reports of any

18     dead or wounded in the shelling of Knin, and no even hearsay reports of

19     persons saying, I decided to leave the Krajina because of a fear of

20     shelling.

21             Turning now to two additional issues.

22             The Prosecution argues that General Gotovina committed to the

23     JCE -- committed or contributed to the JCE by failing to take available

24     measures to stop crime.

25             As the Appeals Chamber is aware, that finding by the

Page 118

 1     Trial Chamber is erroneous on many levels.  First of all, as we noted in

 2     our remarks this morning, the Trial Chamber made an express finding that

 3     the common criminal purpose did not involve crimes like murder, burning,

 4     looting, inhumane conduct, et cetera.  Therefore, as noted in our appeal,

 5     there is no substantial contribution to that crime, to those -- no

 6     substantial contribution to a JCE through those crimes.  Furthermore,

 7     there can be no deportation of persons in furtherance of the common

 8     criminal objective if the Trial Chamber found that those means were not

 9     involved in achieving the common criminal purpose.

10             Accordingly, that argument must fail by the Prosecution as well.

11             Secondly, the Prosecution glosses over the Trial Chamber's

12     findings about what measures General Gotovina was supposed to take.  It

13     is undisputed or at least it was accepted by the Trial Chamber that

14     General Gotovina during this time immediately after Operation Storm was

15     engaged in combat activities against the Bosnian Serb army in Bosnia when

16     these crimes were taking place.  The Trial Chamber found that

17     General Gotovina, indeed, was allowed to presume that subordinates left

18     in Croatia would be doing their jobs appropriately.  However, the -- the

19     Trial Chamber found that this presumption was rebutted when

20     General Gotovina allegedly was put on notice that his subordinates were

21     failing in their duties.

22             First of all, there is no finding by the Trial Chamber that any

23     subordinate failed in his duties, or any subordinate entity failed in its

24     duties.  So on what basis the Trial Chamber conclude that

25     General Gotovina was required to return from Bosnia to address crime in

Page 119

 1     Croatia is left unexplained because we still don't know who these

 2     subordinates were that were not doing their duties properly.  As a matter

 3     of fact, the Trial Chamber concluded that, for example, the military

 4     police was working under difficult circumstances and that it was not

 5     proven that there was any intent to not investigate crimes against Serbs.

 6             Furthermore, the measures that the Trial Chamber said --

 7             JUDGE MERON:  Make sure, counsel, that you don't go too fast for

 8     the interpreters.

 9             MR. MISETIC:  Yes, I apologise to the booths and the

10     court reporter.

11             Next, the measures that Trial Chamber says General Gotovina

12     failed to take were completely invented in the Judgement.  I say

13     "invented" because they were never discussed at trial, never raised by

14     the Prosecution.  They include things like failing to make public

15     statements.  That issue was never addressed at trial, and in fact the

16     Prosecution's case was that the Accused Cermak was the person who was

17     supposed to be making public statements.

18             The seconds issue is he failed to uses adequate resources.  That

19     issue, as well, is vague, because it's unknown what resources he

20     allegedly failed to deploy.  And, third, is that he failed to contact

21     relevant people, period.  Who these relevant people are and why

22     General Gotovina was required to contact them is left completely

23     unexplained.

24             The Prosecution had a case on necessary and reasonable measures

25     that General Gotovina should have taken.  The Trial Chamber rejected all

Page 120

 1     of those.  At that point, the Trial Chamber should have found in favour

 2     of the accused.  Instead, it came up with three more measures that were

 3     never discussed at trial to conclude that General Gotovina's failure to

 4     take these measures amounted to a substantial contribution to a JCE.

 5             We submit, Your Honours, that that is entirely unreasonable and

 6     that an accused, certainly in a trial, should be entitled to know what he

 7     is being accused of.

 8             Finally, with respect to other modes of liability, the

 9     Trial Chamber made express findings that it was not considering

10     alternative modes of liability.  It would be entirely inappropriate now

11     for General Gotovina to be convicted of a case of which he has no notice,

12     with no right of appeal, to challenge any finding convicting him of

13     something of which he was not convicted in the first instance.

14             It would be unfair to convict him or something that has not been

15     fully litigated even in front of this Appeals Chamber; indeed these were

16     comments made in passing in a footnote by the Prosecution in its

17     respondent's brief without any further elaboration on why

18     General Gotovina is liable under these alternative theories.

19             Your Honour, if I may, I apologise, just two minutes.

20     Mr. Akhavan wanted to address Judge Pocar's question that was posed to

21     the Prosecution, if we may briefly.

22             JUDGE MERON:  [Microphone not activated] this will bring our

23     proceedings this morning to their conclusion.

24             Mr. Akhavan.

25             MR. AKHAVAN:  Thank you, Mr. President.

Page 121

 1             In response to Judge Pocar's question, the Prosecution clarified

 2     its view that lawful combat can be a modality for deportation.  We would

 3     like to point out that this is in direct contradiction with the

 4     submissions at the Rule 72 hearings before the Pre-Trial Chamber where

 5     they argued that their case is not -- is not that unlawful -- that lawful

 6     combat can be a basis for deportation.

 7             We would like to as with as well that the chapeau requirement

 8     under Article 5 clearly requires that the civilian population be the

 9     primary object of the attack.  The definition in customary law of

10     deportation as recognised by the jurisprudence of this Tribunal and the

11     ICC Statute is that deportation must be on grounds not permitted in

12     international law, which evidently means unlawful means, unlawful means

13     towards an unlawful end.

14             Fourthly, the reference to Article 49 of Geneva Convention 4,

15     which sets forth the customary law standard, is that deportation only

16     applies to territories under the occupation of a belligerent, or the

17     equivalent, in internal armed conflict.  Clearly conduct of hostilities

18     is a situation where the territory has not yet been placed under the

19     authority of an adversary.  And finally, we point that Article 51,

20     paragraph 2, clearly indicates that with respect to, for example,

21     paragraph 1940 of the ICRC commentary that it is foreseeable that

22     civilians may be terrified of the consequence of combat operations but so

23     long as there is a substantial military advantage, the foreseeability

24     that they may be terrified and the foreseeability that they may even flee

25     cannot be a violation of Article 51(2).

Page 122

 1             So we submit that it would be an extraordinary result if this

 2     Appeals Chamber was to say that lawful combat can be transformed in the

 3     crime of deportation.

 4             Thank you.

 5             JUDGE MERON:  Thank you, Mr. Akhavan.  We will --

 6             You will have this afternoon to reply, in any event, to the

 7     Defence of Mr. Markac.  It seems to me that you perhaps could combine it.

 8             MR. STRINGER:  Yes, if it is allowable, if it's acceptable to the

 9     Chamber, we can [Overlapping speakers] ...

10             JUDGE MERON:  Or would you like to speak three minutes now in a

11     quick reply or combine it with your answer later to answer to Mr. Markac.

12             MR. STRINGER:  Well, I think the first point is that we don't

13     accept the characterisation that counsel has just been given of the

14     position taken by the Prosecution at the hearing to which he referred.

15     Beyond that, we'll combine it with our responses this afternoon.

16             JUDGE MERON:  Yes.  The Bench will consider first further the

17     possibility that we will ask both parties to present a short

18     supplementary briefing on the question first raised by the counsel for

19     the Defence regarding novel arguments raised here today for the first

20     time.  But we will work on that and we will talk about it this afternoon.

21             Mr. Kehoe, do you have --

22             MR. KEHOE:  Yes, Your Honour.  Just with regard to what is being

23     suggested by the Prosecution, we, of course, object because what we were

24     doing is rebutting the arguments advanced for the first time by the

25     Prosecution.  And to allow the Prosecution to then go back for another

Page 123

 1     bite at the apple is simply improper and unfair and in violation of the

 2     Scheduling Order.

 3             JUDGE MERON:  We will probably allow both parties to present a

 4     written brief on that and that will clarify it.  I will not mind if the

 5     Prosecution includes a few sentences in its later reply.

 6             We will now stop till 1.30.

 7             I'm terribly sorry.  2.30, of course.

 8                           --- Luncheon recess taken at 1.24 p.m.

 9                           --- On resuming at 2.30 p.m.

10             JUDGE MERON:  Please be seated.

11             I would like to start by reading a decision ordering supplemental

12     briefing.  The Judges of the panel have noted the comments made today by

13     Gotovina's counsel, suggesting that the Prosecution has advanced new

14     arguments on the merits of the case.

15             The Appeals Chamber requests that Gotovina set out his objections

16     in a supplemental brief, with a maximum of 3.000 words, submitted by

17     17 May.

18             The Prosecution may respond within three days of the supplemental

19     brief, with a 3.000-word submission.  No reply will be allowed.

20             Now I would like to read out a decision taken in my capacity as a

21     Pre-Appeal Judge.  It pertains to Rule 115.

22             So in my capacity as a Pre-Appeal Judge, I note Gotovina's

23     request that the deadline for submitting a reply to the Prosecution

24     response to his second Rule 115 motion be extended to 18 May.  I further

25     note that the Prosecution has taken no position on this request, and in

Page 124

 1     view of the full schedule of the last few days, I grant Gotovina's

 2     request.

 3             And now we will resume our proceedings and we will now hear

 4     submissions by Markac.  One hour and 30 minutes.

 5             Yes.

 6             MS. BRADY:  Your Honour, just briefly on the recent ruling that

 7     you have made about our filing of supplemental briefs, the parties filing

 8     supplemental briefs, his is to be submitted 17 May and ours --

 9             JUDGE MERON:  18 May, I said.

10             MS. BRADY:  17 May, I think you said, with three days later our

11     response.

12             JUDGE MERON:  Oh, sorry, yes.

13             MS. BRADY:  May I confirm that would be a Sunday, Your Honour.

14     Can -- is that -- is that the day that it is due, the Sunday, or the

15     following Monday?

16                           [Appeals Chamber and Legal Officer confer]

17             JUDGE MERON:  Yes, the Rules provide that for calculating.  We

18     will apply the normal Rule.

19             MS. BRADY:  Thank you.

20             JUDGE MERON:  Always in default, we apply the Rules.

21             Counsel for Mr. Markac.

22             MR. MIKULICIC:  Good afternoon to everybody in and outside the

23     courtroom.

24             My name is Goran Mikulicic, and I'm acting on behalf of

25     Mr. Markac's Defence.

Page 125

 1             After my brief introduction, I will turn over the floor to my

 2     learned colleagues Mr. John Jones and, afterwards, Mr. Tomislav

 3     Kuzmanovic.  And by the end of our submissions, I will kindly request

 4     five minutes granted in a private session to address certain matter to

 5     the Appeals Chambers.

 6             Mr. President, Your Honours, at the very beginning of our oral

 7     submissions, we respectfully plea implementation of beneficium cohesionis

 8     principle.  That is to say, that we gratefully adopt the submissions made

 9     on behalf of Ante Gotovina.  Our submissions will be directed

10     principally, if not exclusively, to the fourth question posed by the

11     Chamber in its Scheduling Order; namely, whether the Trial Chamber's

12     finding that a joint criminal enterprise existed should be upheld in its

13     finding that illegal artillery attacks took place is deemed erroneous.

14             We say that the answer to this question is plainly:  No.  There

15     can be no JCE without a finding of unlawful shelling.  This is plain from

16     a close reading of the Judgement.  The Trial Chamber's finding that there

17     was unlawful shelling permitted, influenced, and indeed determined at its

18     firing [sic] on every single aspect of the JCE.  First, it led the

19     Chamber to find that the discussions at the Brioni were about a JCE to

20     remove Serbian population from the Krajina.  Paragraphs 2305, 2316, and

21     2320 of the Judgement.

22             Second, it led the Chamber to find that artillery strikes on

23     Knin, Benkovac, Obrovac, and Gracac were carried out with the intent to

24     deport Serbian populations.  See also Judgement paragraphs 1745, 1746,

25     and 1757.

Page 126

 1             It thus led the Chamber to find that the crime of deportation was

 2     committed.

 3             Fourth, it led the Chamber to find that the crime of persecution

 4     was within the JCE and that persecution indeed occurred.  Paragraph 1862,

 5     1936, in relation to Gracac; 2310 and 2314 of the Trial Chamber's

 6     Judgement.

 7             Fifth, it led the Chamber to find that our client,

 8     General Markac, participated in an unlawful shelling.  Paragraphs 2561 to

 9     258 [sic], and 2583 of the Judgement.

10             And sixth, this way it led to core findings against Markac;

11     namely, that he was a member of the JCE, that he shared the objective of

12     the JCE that he intended to contribute to the JCE, and that he

13     substantially contributed to the JCE.

14             The unlawful shelling attack is thus the linchpin of all of the

15     Chamber's findings in relation to the JCE.  If one removed that linchpin,

16     and the notion of the JCE and of Markac's liability falls away.

17             Now, I'm turning the floor to my colleague, Mr. John Jones.

18             JUDGE MERON:  Mr. Jones.

19             MR. JONES:  Thank you.  Your Honours, as everyone knows, a

20     picture is worth a thousand words and so we have prepared a simple visual

21     aid, which should be in front of you, to help in answering Your Honours'

22     fourth question, which I'll paraphrase thus.

23             Assuming no unlawful artillery attacks, can the JCE be upheld?

24     And we say clearly not, and we say that that is beyond argument.

25             So to explain how the flow chart works, you should have it all in

Page 127

 1     hard copy, and also on your screens.

 2             JUDGE MERON:  Are you sure you are really simplifying matters by

 3     this not exactly simple picture that you have produced?

 4             MR. JONES:  Yes, well, Mr. President, I didn't want to blind you

 5     with science.  However, at the same time, you will see, I hope, as I go

 6     through it, that this does simplify things and in fact taking it box by

 7     box ...

 8             JUDGE MERON:  Just one second.  [Microphone not activated]

 9                           [Appeals Chamber and Legal Officer confer]

10                           [Appeals Chamber and Registrar confer]

11             MR. JONES:  I'm obliged, Your Honour.

12             Hopefully all will, as they say, be revealed as I take you

13     through it.

14             So the bottom box is captured -- captioned "Unlawful artillery

15     attack," and so that's the core finding which, ex hypothesi, for the

16     purpose of answering the Chamber's question 4, is incorrect.  And you

17     have the paragraph references for that finding in relation to the four

18     towns, and that's what's indications with the sections and the paragraph

19     numbers.

20             Section, or chapter, 5.8.2(i), and I ask you to remember that

21     chapter because that comes up time and again in the Judgement, 5.8.2.

22     It's the unlawful attack finding.

23             And then for Knin, paragraph 1906, so all these numbers are all

24     references to paragraphs in the Judgement and nothing else.

25             Knin, 1906.

Page 128

 1             Benkovac, 1923.

 2             Gracac, 1935.

 3             And Obrovac, 1943.

 4             So that's where the findings are.

 5             So this chart will show how everything, absolutely everything,

 6     depends on that finding.  Every JCE finding and every finding of

 7     liability against Markac.  So we have in this Judgement the proverbial

 8     pack of cards which if you pull away the bottom card falls down.

 9             And this chart shows how and why that is it the case.

10             So first let's see what findings the Chamber directly derived

11     from the unlawful artillery attack finding.  I'll call it "the unlawful

12     attack finding" for short.

13             All the boxes on the next row, crimes, denote the findings by the

14     Trial Chamber which derive directly from the unlawful attack finding.

15             And I'll start with the box third from the right, the finding

16     that the Brioni discussion was about a JCE to forcefully and permanently

17     remove Serbs.  I take it you can all see that.  Third from the right.

18             You have that finding in section 6.2.7, at paragraphs 2305 and

19     2315 of the Judgement.  Now what the arrow below the box shows, pointing

20     up to the box, is how that finding about Brioni and that it was the

21     discussion of a JCE derives directly from and depends on the unlawful

22     attack finding.  And that's clear from paragraphs, as you see, 2305,

23     2316, and 2320 of the Judgement.

24             Para 23305 reads, and we'll call it on the screen for everyone:

25             "The Trial Chamber has carefully considered the minutes of the

Page 129

 1     Brioni meeting in chapter 6.2.2.  It here further considers them in light

 2     of subsequent events," and I would underline those words, "in light of

 3     subsequent events, as found by the Trial Chamber (see in particular

 4     chapters 4.4 and 5.8.2(i)."

 5             So those are the chapters, the sections on unlawful attacks.

 6             "Within days of the discussion at Brioni, Gotovina's words became

 7     a reality.  Operation Storm was launched in the early morning of

 8     4 August 1995 with artillery attacks on a number of towns and villages in

 9     the Krajina, including Knin.  As the Trial Chamber has found in

10     chapters 4.4 and 5.8.2(i), in at least some of these attacks the entire

11     towns were treated as targets for the artillery.  These attacks therefore

12     constituted unlawful attacks on civilians and civilian objects.  As a

13     result, large parts of the civilian population of Knin, Benkovac,

14     Obrovac, and Gracac, amounting to at least 20.000 people, were forcibly

15     displaced from their homes and fled across the border to

16     Bosnia-Herzegovina and Serbia.  As the Trial Chamber has found in

17     chapter 4.5 and 5.4.2 this constituted deportation."

18             So the Trial Chamber used the unlawful attacks finding to find

19     that the Brioni discussions was about a JCE forcibly to displace Serbs.

20             Then we go to 2316, and 2316 - sorry - deals with

21     President Tudjman, and it says, and I will just reads the beginning and

22     end:

23             "Franjo Tudjman was a leading participant at all important

24     meetings at which matters relating to the joint criminal enterprise were

25     discussed.  He ensured that his ideas were transformed into policy and

Page 130

 1     action, through his powerful position as President and Supreme Commander

 2     of the armed forces."

 3             So pausing there, the Trial Chamber sees Tudjman as the

 4     mastermind and principal architect of the JCE.

 5             So can we then turn the page and read three lines down:

 6             "Considering the discussions at the Brioni meeting and the events

 7     that subsequently took place," so again underline those words, please,

 8     "and the events that subsequently took place, the Trial Chamber finds

 9     that he," Tudjman, "for this purpose, intended to remove the Serb

10     civilian population by force --"

11             Ah, I was wondering how long it would be before the first

12     injunction to slow down and it has arrived.  I will do my best.

13             "Considering the discussions at the Brioni meeting and the events

14     that subsequently took place, the Trial Chamber finds that he," meaning,

15     Tudjman, "for this purpose, intended to remove the Serb civilian

16     population by force, including through the crimes within the purpose of

17     the JCE."

18             So Tudjman's intentions and thus the meaning of what was

19     discussed at Brioni, which he led the discussions, is interpreted in

20     light of the unlawful attack finding, through that prism.

21             And then paragraph 2320, I'll just read three sentences down:

22             "At the Brioni meeting, Tudjman and high ranking military

23     officials discussed how the military forces should be used to ensure that

24     not only the SVK but also the Serb civilian population would leave the

25     Krajina.  One of the means ultimately used was in itself a crime, namely,

Page 131

 1     unlawful attacks against civilians and civilian objects in a number of

 2     towns in the Krajina."

 3             So we say it is crystal-clear that the Trial Chamber

 4     systematically interpreted the Brioni transcript, itself ambiguous at

 5     best regarding the existence of a JCE, interpreted the Brioni transcript

 6     "in light of subsequent events," namely, in light of its unlawful attack

 7     finding, and in light of its, ex hypothesi, erroneous finding that one of

 8     the means to carry out the JCE was itself a crime of unlawful attacks.

 9             Now just to digress, the Prosecution tacitly admit in their

10     response to our appeals brief that Brioni is not indicative, certainly

11     not beyond a reasonable doubt, of a JCE.  And that's in paragraph 84 of

12     their response to our appeals brief, where they say:

13             "Third, Markac ignores the relevant context in which to assess

14     his participation in the Brioni meeting.  This includes the subsequent

15     implementation of the JCE to remove the Krajina Serbs and Markac's

16     contribution to it.  Within days of the meeting, an unlawful artillery

17     attack was unleashed on the Krajina Serb civilians.  As a result, large

18     parts of the population were displaced."

19             And then it goes down, last sentence:

20             "Given that the Brioni meeting provided the platform for the

21     unlawful attack on the Krajina Serb civilians, Markac's attempt to

22     artificially separate his participation at the Brioni meeting from the

23     ensuing events should be rejected."

24             So, in other words, you can't separate the Brioni assessment from

25     the later unlawful attacks, which, ex hypothesi, are not unlawful at all.

Page 132

 1             So Brioni alone, the Prosecution admits, does not reveal a JCE.

 2     And you have seen this morning the equivalent admissions by the

 3     Prosecution in paragraphs -- I think it was 234, 239, 268, and 271 of

 4     their response to the Gotovina brief.

 5                           [Appeals Chamber confers]

 6             JUDGE MERON:  Question to the French booth:  Is it too fast for

 7     you?  Is it okay, French booth?

 8             THE INTERPRETER:  It's a little fast.

 9             JUDGE MERON:  Too fast.

10             THE INTERPRETER:  Too fast, yes.

11             MR. JONES:  My apologies.

12             JUDGE MERON:  So you will have to slow down a little bit or we

13     will be without interpretation.

14             MR. JONES:  I'll take it at a snail's pace, then.

15             So if you pick up the Brioni transcript, and it's an exhibit,

16     P461, and read carefully through it, in its own context, you will not

17     find a JCE.  It was only by coupling the Brioni transcript with an

18     alleged unlawful attack that the Chamber could find a JCE.  And I refer

19     to the transcript, the transcript, because, of course, not a single

20     witness confirmed the Chamber's interpretation of the meeting.  And isn't

21     it extraordinary when two men are sent to prison for 23 years and

22     18 years on the basis of a JCE which allegedly crystallised at the Brioni

23     meeting but not a witness in the world can be found to say that Brioni

24     was about a JCE.

25             It would be different if Brioni transcript on its face was

Page 133

 1     clearly criminal, clearly, obviously criminal, but it isn't.  So now,

 2     ex hypothesi, the unlawful attack finding was wrong, and therefore the

 3     Brioni transcript denuded of that incriminating context is innocuous,

 4     plain and simple, and that finding Brioni was about a JCE falls away.

 5             In fact, the discussions at Brioni are perfectly consistent with

 6     what the Trial Chamber found was a reasonable interpretation of what

 7     happened in every town and village apart from the four towns.  Namely, a

 8     recognition by the Brioni participants of the well-known fact, well

 9     known, as you've heard, Ambassador Galbraith himself recognised it, that

10     the Serbs would leave the Krajina out of a general fear of the HV,

11     general fear of hostilities, general living conditions and other

12     non-JCE-related factors.

13             And on this subject, let's look at paragraph 1762 of the

14     Judgement.  And it should appear on the screen in a moment.

15             Oh, I'm sorry, I'll just have to read it, then.  The reference --

16     I imagine most parties have the Judgement in front of them.  It starts

17     five lines from the bottom:

18             "The Trial Chamber recalls its finding ... that international

19     armed conflict existed throughout the indictment period and area.  The

20     Trial Chamber considers that the commencement of the armed conflict may

21     in itself have brought about fears of the violence associated with armed

22     conflict, as a result of which civilians fled.  In this respect, the

23     tripe also considers the evidence of and its finding in chapter 4.5.3 ...

24     on persons leaving the RSK in late July and early August 1995," i.e.,

25     before Storm, "in part because they believed a Croatian military

Page 134

 1     operation was imminent.  In the number of aforementioned incidents, the

 2     evidence indicates that the reasons for departure included the departure

 3     of others and a fear of violence associated with the expected imminent

 4     arrival of Croatian armed forces.  For instance, Petar Colovic testified

 5     that his family left because many others were leaving.  RSK officials

 6     told the inhabitants of Oton Polje to leave on 4 August 1995, because"

 7     so-called "'Ustashi' forces were approaching.  Sovilj told his family to

 8     leave Kijani at 1 a.m. on 5 August 1995 for security reasons, because the

 9     HV might have entered the area."

10             And then the important bit:

11             "Considering that persons left the aforementioned locations prior

12     to the commission of crimes or other threatening acts by members of

13     Croatian military forces or special police in or near these locations,

14     the Trial Chamber cannot conclusively determine that acts by members of

15     Croatian military forces or special police created an environment in

16     which those present had no choice but to leave.  Instead, the

17     Trial Chamber considers that the evidence allows for the reasonable

18     interpretation that these persons left because of a fear of the violence

19     commonly associated with armed conflict, or general fears of Croatian

20     forces or distrust of Croatian authorities.  Consequently, the Trial

21     Chamber cannot conclude that these persons were forcibly deported [sic]."

22             But in fact without the unlawful attack finding, the evidence

23     allows for that interpretation in every case, including the four towns.

24     So if you read the Brioni transcript, it is completely consistent with

25     nothing more than the participants recognising the basic reality that the

Page 135

 1     Trial Chamber itself outlined at paragraph 1762; namely, that Serbs would

 2     simply leave the Krajina when hostilities began.

 3             So I go back to the box and second from the left is captioned --

 4     second from the left, yes, "Serbs were forcibly deported."  Section

 5     5.4.2, 1743 to 1745, and 1751.  That finding directly derives from, is

 6     based on, and depends on the unlawful attack finding.

 7             As the arrow below indicates, this is clear from paragraphs 1745,

 8     2305, and 2311 of the Judgement.

 9             1745 is a short paragraph so I will take to you it:

10             "The Trial Chamber considers that the fear of violence and duress

11     caused by the shelling of the towns of Benkovac, Gracac, Knin, and

12     Obrovac created an environment in which those present there had no choice

13     but to leave.  Consequently, the Trial Chamber finds that the shelling

14     amounted to the forcible displacement of persons from ..." those four

15     towns.

16             2305 we have looked at in another context, so we'll just look at

17     the last three sentences.

18             "These attacks therefore constituted unlawful attacks on

19     civilians and civilian objects."  As a result, large parts of the

20     civilian population of the four towns were forcibly displaced.

21             So here the Trial Chamber used unlawful attacks to find that the

22     exodus of 20.000 people constituted deportation.

23             And then 2311, again I'll just look at the last three sentences:

24             "Deportation of the Krajina Serb population was to a large extent

25     achieved through the unlawful attacks against civilians and civilian

Page 136

 1     objects" in the four towns.  Based on the foregoing, the Trial Chamber

 2     finds that unlawful attacks against civilians and civilian objects, as

 3     the crime against humanity of persecution, were also intended and within

 4     the purpose of the JCE."

 5             So the Trial Chamber found that deportation was achieved through

 6     unlawful attacks.  In other words, the Trial Chamber used the finding of

 7     unlawful attacks to find that deportation occurred, and from that - and

 8     it is really double counting - the Chamber found it was done on

 9     discriminatory grounds, simply because the people there were

10     overwhelmingly Serbs.  And it then found intent based on nothing else,

11     really, and thus crimes against humanity, persecution, unlawful attacks

12     within the JCE.  The Trial Chamber piled finding upon finding, spinning

13     it all out of one finding, unlawful attacks which for our purposes we

14     assume was erroneous.

15             Now that's the box "Serbs were forcibly deported."  You will see

16     to the right of that box there is an arrow to the adjacent box, which

17     says "1862."  And that shows that the Trial Chamber derived the next

18     finding, that Serbs were persecuted, both from the finding that Serbs

19     were forcibly deported and principally from the unlawful attack finding.

20     And I won't take you to paragraph 1862 as it's not crucial for our

21     purposes.

22             But what is most important for our purposes is that the Serbs

23     were persecuted finding derives directly from unlawful attack.  And that

24     is shown by the two references in the arrow below to 1862 and 1936.  1936

25     relates to Gracac, which is most relevant to my client, so I will take

Page 137

 1     you to that paragraph.

 2             "Considering the evidence on the ethnic composition of Gracac ...

 3     the Trial Chamber finds that the unlawful attack on civilians and

 4     civilian objects in Gracac discriminated in fact against the Krajina

 5     Serbs.  In establishing the intention with which this unlawful attack was

 6     committed, the Trial Chamber has considered the language of the HV's

 7     artillery orders and the deliberate shelling of areas devoid of military

 8     targets."

 9             So again I would underline those words which are the unlawful

10     attack finding.

11             "The Trial Chamber has also considered its findings in chapters

12     5.2 [sic]," et cetera.  Those are unlawful attack findings.

13             "The Trial Chamber further considers that the unlawful attack

14     against civilians and civilian objects was committed in the context of a

15     wider discriminatory attack against Krajina Serbs ..."

16             "The Trial Chamber finds that the unlawful attack on civilians

17     and civilian objects in Gracac was carried out with the intention to

18     discriminate on political, racial, or religious grounds."

19             So you get two things there, two inferences by the Trial Chamber.

20     Unlawful attack equals discrimination.  Unlawful attack equals intention

21     to discriminate, given that there were mostly Serbs in those areas

22     because Croat civilians were ethnically cleansed in 1991.  Or to put it

23     the other way around, assuming as we do for the purposes of answering

24     your question 4 unlawful attack is wrong, no unlawful attack means no

25     unlawful attack qua crime, no unlawful attack as persecution, no unlawful

Page 138

 1     attack as crime against humanity, no discriminatory attack and hence no

 2     discrimination, no intention to discriminate, no JCE involving unlawful

 3     attacks, and no JCE involving persecution.  Because all the underlying

 4     core crimes fall away.  So all the skittles get knocked down when you

 5     take away unlawful attack finding.  It's extraordinary that the

 6     Prosecution should maintain otherwise.

 7             Now that analysis takes in some of the other boxes so I can deal

 8     with them more rapidly.  To the right of the Brioni box, which we have

 9     already looked at, we have the box:  "Those who ordered artillery strikes

10     did so with the intent to deport," and you see the references in the box

11     to where that finding is to be found.  And that finding, too, is entirely

12     dependant on the unlawful attack finding as are all the findings on this

13     chart.  And that's clear from paragraphs 1746 and 1757.

14             1746:

15             "The Trial Chamber considered several factors in establishing

16     whether the HV and special police forces who shelled these four towns on

17     4 and 5 August 1995 did so with the intent to forcibly displace persons

18     from the towns.  Firstly, the Trial Chamber recalls its findings in

19     chapter 5.8.2(i)," and that's the magic chapter where unlawful attacks is

20     dealt with, "that the HV and special police did not limit themselves to

21     shelling areas containing military targets, but also deliberately

22     targeted civilian areas in these towns and treated the towns themselves

23     as targets for artillery fire.

24             "In the same chapter, the Trial Chamber found that the unlawful

25     attack on civilians," so it presumes an unlawful attack, "and civilian

Page 139

 1     objects in these towns was carried out with the intention to discriminate

 2     against Krajina Serbs on political, racial, or religious grounds.  The

 3     Trial Chamber further refers to the evidence reviewed in chapter 6.2.7

 4     regarding the existence and objective of a JCE and particularly the

 5     evidence regarding the Brioni meeting" of 31st July.

 6             So the Brioni meeting too was interpreted in light of the

 7     unlawful attack finding.

 8             "Based on the aforementioned evidence and conclusions, the Trial

 9     Chamber finds that the HV and special police forces who shelled Benkovac,

10     Gracac, Knin, and Obrovac did so within the intent to forcibly displace

11     persons from these towns."

12             Paragraph 1757 shows the Trial Chamber using the unlawful attack

13     finding even to find that, what I call "non-artillery crimes" --

14             THE INTERPRETER:  Please slow down.

15             MR. JONES:  -- were committed with the intent to forcibly -- oh,

16     I'm sorry.  Even non-artillery crimes were committed with the intent

17     forcibly to displace Serbs.

18             1757 you should have on your screens in a moment.

19             "The Trial Chamber has considered several factors in establishing

20     whether the members of Croatian military forces and special police who

21     committed the crimes which resulted in the forcible displacement of the

22     victims of and witnesses to the crimes did so with the intent to forcibly

23     displace these persons."

24             And then again the Trial Chamber goes back, as is its custom.

25             "Firstly, the Trial Chamber recalls its conclusions in

Page 140

 1     chapters 5.8.2, that the perpetrators committed these crimes with the

 2     intention to discriminate against Krajina Serbs ... the Trial Chamber

 3     further considered its findings in the same chapters that these crimes

 4     were committed as part of an attack against the civilian population.

 5     This attack includes deportation of Krajina Serbs from the towns of," and

 6     then we have the four towns again, "by means of unlawful attack ..."

 7             And incidentally, we do have a separate box on the far left of

 8     the row entitled "Non-shelling crimes were intended to deport," so that's

 9     that finding too.

10             And we see from there how that is derived in 1757 from the

11     unlawful attack finding.

12             So we're mostly finished with this row concerned with the crimes.

13     We just have a final box on the far right, captioned:  "Those who carried

14     out the artillery strikes did so with intent to persecute."  And that

15     finding is at paragraph 1936 of the judgement.  And as you'll see from

16     the arrow with the same paragraph number, that finding derives directly

17     from the unlawful artillery attack finding.  And we've already reviewed

18     that paragraph, so I won't do it again.

19             So to pause there, you will see how all of the key core findings

20     relating to the core JCE crimes, deportation, persecution, crimes against

21     the humanity, all the elements derive directly from the unlawful shelling

22     finding.  And even its findings on non-core crimes too.

23             So no unlawful shelling means no JCE crimes, and in fact the

24     unlawful shelling finding was so all-pervasive in the Judgement that it

25     even led the Chamber to disbelieve President Tudjman's appeal to Serbs to

Page 141

 1     stay in their homes.  And you will find that at paragraph 2051, and I'll

 2     summarise it rather than reading it in whole.

 3             The Chamber said that it had to treat Tudjman's statement

 4     inviting Serbs to stay in their homes with great caution and the reason

 5     for that was because that had to be considered against the background of

 6     the discussions at Brioni, and then it further went on to say it has to

 7     be considered in light of the unlawful attack findings.  And then it

 8     says:

 9             "Based on the foregoing, the Trial Chamber finds that the appeal

10     was not a true reflection of the will and intention of Tudjman at the

11     time."

12             So without the unlawful attack finding, there's no reason to

13     suppose that Tudjman's appeal was not a honest appeal to Serbs to stay in

14     their homes.  And certainly that's a reasonable interpretation of the

15     evidence.

16             So let's go to the next level on this flowchart, and that's the

17     middle level where you will see just two boxes.  Markac, that's obviously

18     MM, participated in an unlawful attack and Markac participated in the

19     discussions at Brioni.

20             Now, we'll deal first with the box on the left, Markac

21     participated in unlawful attack, and that finding was at paragraphs 2580

22     and 2583 of the Judgement.  Now, it's obvious, isn't it, if there was no

23     unlawful attack, Markac couldn't have participated in it.  You can't

24     participate in what doesn't exist.  So we leave that box to one side.

25             Markac participated in discussions at Brioni.  Well, there is, of

Page 142

 1     course, nothing criminal about simply participating in discussions.  If

 2     Brioni was not about a JCE, then Markac's presence at Brioni and his

 3     participation in the discussions is completely innocuous.  So for the

 4     Trial Chamber to use Markac's presence and participation in Brioni to

 5     derive JCE liability, it needs Brioni to be about a JCE.

 6             So that box, that finding's significance derives from the box

 7     below, Brioni was about a JCE, and in turn derives from the unlawful

 8     attack finding.  Because Brioni was always interpreted by the Trial

 9     Chamber "in light of subsequent events," specifically in light of what

10     the Chamber to be found to be unlawful shelling.  See paras 2305, 2316,

11     and 2320.

12             And it is no coincidence that the Chamber took that approach.

13     The reason why the Chamber had to go outside the Brioni meeting to

14     subsequent events is because there is nothing in the minutes themselves,

15     in the transcript, which shows a criminal enterprise.  There is no

16     mention of:  Let's prevent the Serbs from coming back, for example, which

17     is meant to be a core objective of the JCE.  The JCE, of course, has to

18     be a criminal enterprise, not an enterprise.

19             The Wannsee Conference was a meeting about exterminating European

20     Jews.  In Argentina during the Galtieri regime there were meetings where

21     the military junta explicitly said, Let's exterminate the Communists.  A

22     criminal enterprise.  But Brioni has nothing at that.  It's a military

23     operational meeting to prepare for Operation Storm.  A completely lawful

24     operation, as the Chamber found Operation Storm and the Prosecution

25     acknowledged.  And it is worth remembering the Prosecution never claimed

Page 143

 1     that there was anything wrong with Operation Storm, but they claimed

 2     there was a JCE wrapped up in Operation Storm.

 3             So now hopefully you begin to see how the Chamber's findings are

 4     built up from one finding at the bottom, and what we now need to look at

 5     is how the Chamber took all these building blocks, all based on the

 6     unlawful attack finding, and arrived at this top-most level, Markac's

 7     liability under the JCE.  So this is the top level of our chart, four

 8     boxes.  Markac substantially contributed to the JCE, including by failing

 9     to prevent/punish.  Markac was a member of the JCE.  Markac intended to

10     contribute to the JCE, and Markac shared the JCE objective.

11             We'll take those findings one at a time.

12             Markac substantially contributed to the JCE.  That finding

13     derives directly from the Chamber's finding that Markac participated in

14     the unlawful attack.  So no unlawful attack means Markac didn't

15     participate in an unlawful attack.  And if Markac did not participate in

16     an unlawful attack, then he didn't substantially contribute to the JCE.

17             So that leaves our three last boxes.  All of them are tied up

18     with paragraph 2583, and it is a key paragraph so I will need to go

19     through it line by line.

20             "The Trial Chamber now turns to determining whether Markac shared

21     the objective of the JCE, and whether with his acts and omissions Markac

22     intended to contribute to it.  Markac participated in the Brioni meeting

23     and took active part in the planning of Operation Storm."

24             Pausing there, there is nothing wrong with Operation Storm and

25     being involved in the planning of Operation Storm.  Even the Prosecution

Page 144

 1     accepts that.  And participation in Brioni is innocuous once you knock

 2     out the unlawful attack finding.

 3             Now then the Chamber discusses artillery orders and goes on.  I'm

 4     going eight lines down:

 5             "The Trial Chamber found in chapter 5.8.2(i)," that's the chapter

 6     I've asked you to look out for because it is the key on unlawful attacks,

 7     "that these were orders to treat whole towns, including Gracac, as

 8     targets when firing artillery projectiles during Operation Storm."

 9             Pausing there, those orders were only found to be unlawful in

10     light of the unlawful attack finding.  See paragraphs 1911 for Knin;

11     1915, Benkovac; 1927, Gracac; and 1943 for Obrovac.

12             I go on:

13             "Considering that the purpose of the 3 August 1995 meeting in

14     Zadar was the co-ordination of artillery, the Trial Chamber considers

15     that the only reasonable interpretation of the evidence is that Markac,

16     at the meeting, was aware of the nature of the planned artillery

17     operations."

18             I pause there.  If the nature of the artillery operations was

19     lawful, then there's nothing wrong with being aware of those operations.

20             Then it goes on:

21             "On this basis, the Trial Chamber finds that Markac was aware,

22     when he ordered the artillery attack on Gracac, that it constituted an

23     unlawful attack against civilians and civilian objects."

24             Pausing there.  No unlawful attack means no awareness of unlawful

25     attack by Markac.

Page 145

 1             "It thus shows his intent to contribute to the JCE objective."

 2             So then intent must fall away.  Ex hypothesi, we assume no

 3     unlawful attack, intent to contribute must go.

 4             "In light of this finding," so "in light of this finding" means

 5     that as all those findings are, ex hypothesi, erroneous, that one is

 6     still nowhere.  Almost the bottom of this paragraph.

 7             "In light of this finding, the Trial Chamber finds that Markac's

 8     omissions in relation to the crimes committed by the special police in

 9     both Gracac and Donji Lapac, as well as through his active role in

10     covering up the crimes committed in Grubori and Ramljane, were also aimed

11     at contributing to this objective.  "On this basis," I underline that, on

12     this basis, on this flawed basis if we say there is no unlawful attack,

13     on this entirely flawed basis, "the Trial Chamber finds that Markac had

14     the state of mind that the crimes forming part of the objective should be

15     carried out.  Considering all of the above," so all of the above is

16     erroneous because each is built on the other, "the Trial Chamber

17     accordingly finds that Markac was a member of the JCE."  So that falls

18     out.

19             "The Trial Chamber finds that Markac thus intended that his

20     actions contribute to JCE."

21             That too has to fall away.  It all falls away, all of 2583 you

22     can strike a line through it if unlawful attacks is wrong, and everything

23     of his JCE liability is in that paragraph.  The "thus" in that last

24     sentence means it follows from what went before, and all of what went

25     before is false if unlawful attacks is false.

Page 146

 1             So you have this tortured passage, with the greatest respect to

 2     the Chamber, but where element upon element of JCE liability is heaped on

 3     each other and in a totally circular, self-supporting way so that every

 4     element simultaneously proves and is proved by each of the other

 5     elements.  And so the Chamber pulls itself by its own bootstraps into the

 6     ether.

 7             But as I said, it's a house of cards because once the unlawful

 8     attack finding goes, it all goes.  It alls falls away, all collapses.

 9     Nothing is left when you take that away.

10             So looking at the last three boxes on the table, Markac was a

11     member of the JCE, intended to contribute to the JCE, shared the JCE

12     objective, all our arrows show that the Chamber is, to use another

13     metaphor, building bricks without straw.  Each finding points to the

14     other, but ultimately they're all founded on the unlawful attack finding.

15             Now, another metaphor which might be helpful.  The Judgement is

16     like a knitted sweater.  On one thread is the unlawful attack finding,

17     but it's not just one thread which runs through the whole fabric of the

18     Judgement.  It's the first and central and omni-present thread.  It's a

19     thread which is wrapped in every other fibre of the argument -- of the

20     garment, so that every bit of this Judgement, wherever you look, has got

21     an unlawful attack thread wrapped around it.  And wherever you cut this

22     Judgement, there's an unlawful attack finding staring up at you.

23             And it's no accident that the unlawful attack finding permeates

24     everything, because the Trial Chamber liked its unlawful finding, if I

25     can put it that way.  It didn't shy away from making that finding the

Page 147

 1     centrepiece of the Judgement.  Based on this 200-metre rule, which the

 2     Prosecution described in its appeals brief as was generous, it's a

 3     generous rule to Gotovina and Markac, but which it now says is overly

 4     narrow.  I don't know how they reconcile generosity and being overly

 5     narrow but they do, but if the Trial Chamber could be represented here

 6     today, I'm sure it would admit, as the Prosecution will not do, that if

 7     the unlawful attack finding goes, the JCE goes.  And that the answer to

 8     Your Honours' fourth question is therefore a resounding no.

 9             I want to give -- I think I still have ample time.  That was to

10     explain the chart.  There are a few questions raised earlier which I

11     would appreciate dealing with -- having time to deal with.

12             Firstly, this morning, Your Honour, Mr. President, asked a

13     question about opportunistic targets.  In essence, if the Trial Chamber

14     thought that the evidence was inconclusive about opportunistic targets,

15     what exactly is the position.  This is the answer which I would give.

16             If the Trial Chamber thought that the evidence was inconclusive

17     as to opportunistic targets, to assume that they were no opportunistic

18     targets is to fail to resolve any doubts in favour of the accused and

19     therefore it's a breach of the presumption of innocence.  That's the

20     answer I would give to Your Honour.

21             I will say one thing about the 200-metre rule.  First if I could

22     preface it by saying something by Rajcic because the Prosecution say that

23     200-metre rule is all about discrediting Rajcic.  Rajcic was a

24     Prosecution witness.  It really is worth mentioning that.  He was a

25     Prosecution witness.  And when he said that that -- the order to treat

Page 148

 1     whole towns as targets was interpreted by him and by everyone down the

 2     level of command to mean fire on predetermined lawful targets, if he said

 3     that, but they say it's a -- in fact they were firing indiscriminately,

 4     he was a liar.  Rajcic would be a liar.  And it was their duty to say to

 5     Rajcic -- either have him declared hostile or to say to him:  We put it

 6     to you, Mr. Rajcic, you are lying, that is not correct, that is not how

 7     you understood it.  They never did it.  In flagrant breach of Rule 90(H).

 8     And yet now that's their case.  They say Rajcic implicitly must be a

 9     liar, and yet they rely on him as credible when he says that the chances

10     of hitting Martic was slight.  So when it suits them, Rajcic is credible;

11     when it doesn't suit them, he is essentially a liar.

12             So the unimpeached evidence of their witness is that this is how

13     artillery orders were interpreted.  And so saying that there is

14     corroboration because this order putting towns under fire -- sorry.  That

15     this order which goes down the lines of command, showing how it is been

16     sent down from one -- down the chain of command - sorry - that doesn't

17     get them anywhere if, in fact, everyone interpreted the order as meaning

18     fire on predetermined lawful targets.

19             So then they link that to the 200-metre rule.  Now we adopt

20     Gotovina's submissions on the 200-metre rule.  But can we just add this,

21     and it is really more a point of logic.  The 200-metre rule is only a

22     rule about military targets.  It says:  Here is a military target.  If

23     you land within 200 metres, we presume you're aiming at that target.  It

24     doesn't tell you anything about whether civilian targets are being

25     targeted.  And so it does lead to these absurd results that a -- a

Page 149

 1     missile which lands in a muddy swamp, lands in the middle of nowhere, in

 2     the middle of a desert, is against a civilian target, because it's a

 3     negative definition.  That's the problem.  If it's not military, it must

 4     be civilian.  A muddy swamp is not a civilian object.  A desert is not a

 5     civilian object, and yet their rule obliges them to say that it is.

 6             And it's also -- I don't want to be too -- using philosophical

 7     logic about this but I was a [indiscernible] at university.  I did

 8     philosophy at university.  But there is a fallacy, a well-known fallacy

 9     which is -- it's the fallacy of denying the antecedent, and it goes like

10     this.  Say if it is a cat, it's a mammal.  It's not a cat, therefore it

11     is not mammal.  That is a fallacy because it could be a dog.  It could be

12     a horse.  And the same fallacy is here.  They say if it is within 200

13     metres, it's aimed at the targets.  It is not within 200 metres,

14     therefore it is not aimed at the target.  Wrong.  That's a straight

15     logical fallacy.  And the equivalent of it could be a dog is there are

16     ample other explanations of why the target was outside 200 metres.  And

17     in paragraph 18 of Gotovina's appeals brief, it refers to these other

18     explanations.  And I quote:

19             "The Trial Chamber failed to consider the following reasonable

20     explanations for projectiles landing more than 200 metres from known

21     artillery targets.  1, the range of error of the weapons system employed

22     was beyond 200 metres; 2, the HV fire at a tactical level unknown to

23     Rajcic would have provided additional military objectives; 3, there were

24     other military targets not identified in evidence; 4, the shell's landing

25     location may for some or all of these cases have been caused by errors,

Page 150

 1     inaccuracies, or negligence; and 5, malfunctioning of weaponry or

 2     ammunition."

 3             I mean, it's obvious to the layman that artillery firing at 26

 4     kilometres can be affected by wind, by whether it's on a flat piece of

 5     ground, whether one of the missiles has got a faulty fuse.  It is obvious

 6     that there are a host of explanations.  And it is a rule which utterly

 7     reverses the burden of proof because --

 8             THE INTERPRETER:  Would counsel kindly slow down for the

 9     interpreters and the record.

10             MR. JONES:  Well, I'll simply adopt the submissions of Gotovina

11     in that respect rather than repeating them.

12             Now, Your Honour, Judge Pocar, asked the Prosecution what if the

13     attack were -- were an attack only on military targets, would the

14     Prosecution still say it was a crime.  And the Prosecution said yes.  And

15     one of the things they said is, yes, if you're counting -- quote, if

16     you're counting on collateral damage.  Now you can't -- they can't count

17     on collateral damage by definition.  Collateral damage is what happens

18     accidentally not deliberately, by definition.  And where do they get that

19     rule from?  Where do they get the rule in IHL from, that it's criminal if

20     you count on collateral damage.  I have never seen that rule in the

21     commentaries on the Geneva Conventions.  So that it shows that really

22     your question -- or, rather, the answer to your question, Your Honour,

23     shows that the Prosecution will take any position and they will make up

24     IHL on the hoof.  And so they now postulate a JCE using lawful means, and

25     only lawful means, and so then, firstly it would all depend on whether

Page 151

 1     civilians leave or not.  If they stay you're not committing one of the

 2     worst crimes -- and let's remember, that's what we're talking about, the

 3     worst crimes known to man.  Crimes against humanity, JCE.  If the

 4     civilians don't leave, whether they leave, that's what your liability

 5     depends on.

 6             Or it depends on what is floating around your mind.  If when you

 7     man the guns and you pull the trigger you think, I hope those civilians

 8     will leave because of this lawful shelling, that transforms into a crime.

 9     A war crime, or a crime against humanity.  What you are thinking becomes

10     a thought crime.  This is a thought crime.  This is mens rea with no

11     actus reus.  And so they're making up the law and they're making up the

12     case against Gotovina and Markac as they go along on the day of the

13     appeal hearing.  Their case at trial is that there were no targets, or

14     almost no targets.  Now they say even if there was but targets, they're

15     still guilty.  So 100 per cent different case and they're still guilty.

16             It shows the Prosecution is willing to take any position.  And

17     it's not just they're moving the goal-posts around.  They've taken the

18     goal-posts from one side of the pitch and they've moved it to the other

19     side of the pitch.  And so they may be willing to move the goal-posts

20     around 360 degrees, but I suggest Your Honours should not follow them

21     down that sorry path.

22             And Ms. Baig said, well, it's -- sorry, I'll pause.

23             JUDGE MERON:  Mr. Jones, I think there was a crime in old common

24     law wishing the death of the sovereign.

25             MR. JONES:  Yes.  It is encompassing or something like that.

Page 152

 1     Well, that is a particularly grievous offence so it's probably right that

 2     that's punishable.

 3             But it was also said that one would not have a criminal plan

 4     if -- if civilians leaving was unforeseen and incidental, was her phrase.

 5     Again, I don't know where in IHL they get that from, where is that test,

 6     the unforeseen and incidental test.  So now you have to not foresee it.

 7     If you don't foresee it, you're not liable.  So either you have to be

 8     wilfully blind, you have to close your eyes to what's foreseeable, but

 9     what if it is foreseeable?  If you think, I want to conduct this lawful

10     operation, I can foresee that civilians will leave, what do you do?  Does

11     that mean you can't launch a lawful attack because you foresee that?

12     It's ludicrous, and that has no basis in IHL.  As I say, in fact,

13     creating thought crimes, no actus reus, but a crime if there's mens rea.

14     That is not just contrary to IHL, that is contrary to every principle of

15     criminal law, subject to Your Honours' example which I'll have to

16     research.

17             So I will leave it there and turn over to my learned friend

18     Mr. Kuzmanovic unless there are any questions from the Bench.

19             MR. KUZMANOVIC:  Good afternoon, Your Honours.

20             My presentation today, Your Honours, will concern mostly

21     questions 2 and 3 in the addendum, whether the Trial Chamber's

22     conclusions regarding impact sites should be upheld if its application of

23     the 200-metre margin of error is deemed erroneous; and number 3, whether

24     the Trial Chamber's finding that illegal artillery attacks took place

25     should be upheld if its conclusions with respect to impact sites are

Page 153

 1     deemed erroneous.

 2             With respect to the first question, Your Honour, we won't have

 3     any other further submissions other than to answer that question a

 4     resounding yes.

 5             With respect to questions 2 and 3, the impact sites and the

 6     200-metre rule, it's a resounding no.

 7             Judge Guney asked a very pressing question on page 89 of today's

 8     transcript in lines 3 through 7, which I will also endeavour to answer.

 9     His question was:  Was it unreasonable for the Trial Chamber to infer the

10     civilian character of areas where there were no military objectives?

11             The answer to that question, yes, it was extremely unreasonable.

12     I will explain why.

13             The second portion of that question was:  May the civilian

14     character be inferred from a general statement without any evidence to

15     support it?

16             The answer to that is:  No.  The civilian character cannot and

17     must not be inferred, as it turns reasonable doubt on its head and

18     reverses the burden of proof.

19             As the Court is well aware, in the Blaskic case, the Prosecution

20     bears the burden of proving that an object was indeed dedicated to

21     civilian purposes.

22             The answer to Judge Guney's question can be vividly illustrated

23     by the Trial Chamber's analysis of the artillery attack on the military

24     targets in Gracac.  Let's look at what the Trial Chamber did with respect

25     to Gracac.

Page 154

 1             Paragraphs 1927 through 1932 of the Trial Chamber's Judgement, in

 2     part, discuss Gracac.  The Trial Chamber begins by explaining that:

 3             "No fewer than 150 projectiles fell on Gracac and its immediate

 4     vicinity on 4 August 1995."

 5             Paragraph 1928 of the Judgement.  The Trial Chamber doesn't

 6     really explain how it got to that number but that's what we have and

 7     that's what I'm going to deal with.

 8             The Trial Chamber further explains that it has only been able to

 9     conclusively determine a small number of precise locations of impacts

10     relative to a portion of those 150 projectiles.  That's also at

11     paragraph 1928.  150 projectiles, 150 impacts.  I guess we can safely

12     assume that that's what we have in relation to Gracac.  How does the

13     Trial Chamber conclude in paragraph 1934 that a considerable portion of

14     the locations of those impacts were civilian objects or areas in Gracac?

15     It does so by reviewing five target areas.  Five.  We submit that this in

16     and of itself is unreasonable.  However, it first qualifies this

17     conclusion by stating in paragraph 1934:

18             "... the number of civilian objects or areas in Gracac

19     deliberately fired at by the HV," and it doesn't define what this means,

20     "deliberately fired at," "may appear limited in view of the at least

21     150 projectiles fired at the town."

22             The Trial Chamber further stated and repeated in paragraphs 1928

23     and 19234 of the Judgement that it was able to conclusively determine

24     only a small number of precise locations of impact relating to some of

25     those 150 projectiles.  So keep in mind those two qualifications in

Page 155

 1     relation to Gracac that the Trial Chamber made.  One, that the civilian

 2     objects or areas were limited that they covered or were able to

 3     determine; and two, they conclusively determine only a small number of

 4     precise impact locations.

 5             Let's go through the steps of what the Trial Chamber did there

 6     and see what it did to determine whether or not the attack on Gracac was

 7     unlawful.

 8             The first impact area, at paragraph 1929, the Trial Chamber says

 9     there:

10             "... artillery projectiles struck the police station in

11     Gracac ..."

12             It doesn't tell us how many projectiles, but it assumes that

13     those projectiles hit their target.

14             The second impact area, in 1929, is the Gracac Brigade command

15     post.  There's no discussion of number of impacts.  Both were determined

16     by the Trial Chamber to be military targets.  So as far as the first two

17     areas of impact are concerned, we don't have any issue relating to

18     civilian targets or areas.

19             The third area, in paragraph 1930 of the Judgement, a house

20     located near a factory which served as a Serb military depot.  It said

21     that one or more, doesn't define how many, impacts.  The Trial Chamber

22     determined in that third area that firing at this depot would have

23     offered a definite military advantage.

24             The fourth impact area, at paragraph 1931, 10 to 20 impacts at an

25     intersection, in which the Trial Chamber determined that firing there

Page 156

 1     would have offered a definite military advantage.

 2             So we have four impact areas, all four either military targets,

 3     or areas that offer a definite military advantage.

 4             Let's look at the fifth impact area, at paragraph 1932.  Several

 5     projectiles.  Now, several can mean usually more than one.  In common

 6     conversations, several to me means less than five.  Six is a half a

 7     dozen, so we will say several is less than six.  Near a witness who

 8     testified in this case, Gacesa, near her house, which the Trial Chamber

 9     determined was 300 metres from a target on the Jagoda list.

10             The sixth area of impact were artillery projectiles.  Again, how

11     many, undeclared, undefined, near Witness Steenbergen's home - Witness

12     Steenbergen was a UN military observer - that were within 450 metres or

13     800 metres of a targeted military target on both either the special

14     police target list or the Jagoda list.

15             So that is 150 impacts, projectiles.  One to four of those impact

16     areas -- one through four of those impact areas analysed were legitimate

17     military targets or offered definite military advantage.  The fifth area

18     of one impact was within 300 metres - so it fits within the Leslie

19     estimation range of error - of a target.  And the sixth and final impact

20     area concerning Gracac was within 450 to 800 metres of a target.

21             So the conclusion the Trial Chamber drew from analysing those six

22     impact areas out of 150 projectiles, that, in Gracac, civilian areas were

23     deliberately targeted based on its findings in reviewing those six impact

24     areas.

25             That is unreasonable.

Page 157

 1             The only witness to testify about targeting by the special police

 2     specifically was Josip Turkalj, a Prosecution witness, at paragraph 1437.

 3     Josip Turkalj's testimony regarding the special police targeting in and

 4     around Gracac was that the purpose was to neutralise the target and to

 5     minimise collateral damage.  That's at paragraph 1435.

 6             In fact, Turkalj testified that he had a conversation with

 7     General Markac the day before Operation Storm began and Turkalj said

 8     General Markac told him:

 9             "When selecting targets, make sure that civilians would not come

10     in harm's way."

11             Turkalj testified not just about targets in and around Gracac,

12     but about the entire area of special police access of attack, from the

13     Velebit mountains all the way to Donji Lapac.

14             Now, the Trial Chamber's conclusion that a considerable portion

15     of the impact areas were civilian objects or areas, based on its own

16     analysis of six impact areas is wrong.  It's completely unreasonable and

17     it is not supported by its own examples.  Considering this flawed impact

18     analysis, Turkalj's testimony about targeting and that military targets

19     were targeted in and around Gracac, and the fact that there were no

20     civilian deaths in or around Gracac, no evidence of civilian deaths as a

21     result of artillery, or evidence of unreasonable collateral damage in

22     Gracac due to artillery in the entire analysis of the Gracac artillery

23     attack, the finding that an unlawful attack against civilians and

24     civilian objects was widespread and systematic and an attack against the

25     civilian population must be overturned.

Page 158

 1                           [Appeals Chamber confers]

 2             JUDGE MERON:  Sorry, question from Judge Robinson.

 3             MR. KUZMANOVIC:  Yes, Your Honour.

 4             JUDGE ROBINSON:  You said out of 150 projectiles that were

 5     launched in Gracac, the Trial Chamber examined six impact areas.

 6             MR. KUZMANOVIC:  Correct.

 7             JUDGE ROBINSON:  And that finding, you say, was unreasonable.

 8             MR. KUZMANOVIC:  No.  I say it was unreasonable for them to find

 9     that they were deliberately targeting civilian areas based on their

10     analysis of the impact areas.  Four of the six which were legitimate

11     military targets.

12             JUDGE ROBINSON:  But could they have found reasonably that those

13     six areas had been deliberately targeted?

14             MR. KUZMANOVIC:  Based on the fact that both the special police,

15     the Jagoda list, the special police targeting list found in four of those

16     six areas were military targets, yes.  They deliberately targeted

17     military targets in four of those six areas, and within the two areas in

18     which there was an error of 400 metres for one from a target and an error

19     of 450 to 800 metres of the second, and there was no evidence of

20     collateral damage.

21             JUDGE ROBINSON:  And that would not be a sufficient basis --

22             MR. KUZMANOVIC:  To determine that the entire city of Gracac was

23     unlawfully attacked by artillery, correct.

24             JUDGE ROBINSON:  This is what I'm trying to get at.  What is

25     vitiated by the unreasonable finding?  The entire finding that Gracac

Page 159

 1     is -- was attacked as a whole?

 2             MR. KUZMANOVIC:  Yes, I -- as a whole, as an entire town, without

 3     any selectivity between military and civilian areas.  Correct.  Based on

 4     one, that analysis; two, the number of impacts were analysed; three, the

 5     number of projectiles that were launched on Gracac; and four, the fact

 6     that four of the six areas that were attacked were military targets --

 7     actually, five of the six, one -- one of which the range was in the

 8     acceptable, if you use Leslie's number, 400 metres, five of the six were

 9     with -- were legitimate military targets.

10             JUDGE ROBINSON:  So that you can't extract from Gracac, say,

11     four -- four impact areas and if those had been properly determined by

12     the Trial Chamber as having been unlawfully attacked, that, you say, is

13     not a sufficient basis for a finding that Gracac as a whole.

14             MR. KUZMANOVIC:  I agree, Your Honour, because it's just not --

15     it is not enough.  You have 150 artillery rounds.  You have six areas of

16     impact which, giving the Prosecution the benefit of the doubt, maybe have

17     20 total impacts, it is simply not enough to make a determination that

18     the civilian areas, per se, were attacked intentionally by the special

19     police and the HV, in Gracac.

20             JUDGE ROBINSON:  Thank you.

21             MR. KUZMANOVIC:  Thank you, Your Honour.

22             Your Honours, I just wanted to address one more issue on the

23     JCE 3 issue as it pertains to General Markac.

24             One particularly troubling aspect of the finding in JCE 3 as it

25     relates to General Markac is this particular finding.  And it's the

Page 160

 1     finding in paragraph 2586 of the Trial Chamber Judgement.  As the Court

 2     is well aware, if there is no JCE 1, there is no JCE 3, but I would be

 3     remiss if I did not address the Trial Chamber on this particular issue

 4     and essentially the main and almost sole finding of JCE 3 culpability in

 5     terms of mens rea for General Markac.  The Chamber recognised that

 6     General Markac chose troops who were not local to the area in which

 7     operations were carried out so that revenge crimes could be avoided.  So,

 8     in other words, if a unit was going into Gracac or Donji Lapac or in any

 9     other area of special police area of operations during Operation Storm,

10     General Markac said, I don't want local guys to go there, even though it

11     probably would have been better from the standpoint of knowing the

12     terrain, he wanted someone from the Vukovar unit or the Osijek unit or

13     some other unit to go because he wanted to even avoid the possibility

14     that there might be revenge crimes.

15             But the Chamber's inference of that goes totally against common

16     sense.  The Chamber found, in 2586, that Markac's attempt to prevent

17     crimes this way showed that Markac was aware of the possibility that

18     members of the Croatian military forces and special police would

19     perpetrate acts of revenge.

20             That makes no sense.  One sentence earlier, the Chamber says:

21     Markac choice these troops "so as to avoid sentiments of revenge against

22     people and to avoid possible conflict."  And that is evidence of his

23     mens rea for JCE 3.  I submit to you that that is completely

24     contradictory.  And that is a crucial part of the Chamber's determination

25     of JCE 3 liability for General Markac.

Page 161

 1             Your Honours, those are my submissions, unless there are any

 2     other questions.

 3             JUDGE MERON:  I would like to ask you, if I may, a short

 4     question.

 5             MR. KUZMANOVIC:  Yes.

 6             JUDGE MERON:  It pertains to the testimony of Witness P82.

 7             MR. KUZMANOVIC:  Yes.

 8             JUDGE MERON:  You will recall that the Trial Chamber relied on

 9     the testimony of Witness P82 and in that context emphasised that

10     circumstantial evidence was corroborated.

11             Now, since we do not -- since acceptance or reliance on a single

12     witness testimony is quite allowed, why do you object to this -- these

13     conclusions of the Trial Chamber?

14             MR. KUZMANOVIC:  Well, I think, Your Honour, part of that

15     discussion went on in private session during the trial, and I don't know

16     if Your Honour would want me to do that now.

17             JUDGE MERON:  So please do not answer that, and we will see

18     whether before closing I come back to you in a private session.

19             MR. KUZMANOVIC:  Thank you, Your Honour.

20             There was a reason it was P82 and not a name, so ...

21                           [Appeals Chamber confers]

22             JUDGE MERON:  I believe that counsel for Mr. Markac wanted a few

23     minutes in a private session.

24             MR. MIKULICIC:  Yes, Your Honour, and perhaps that will be also

25     the chance to ask my learned colleague --

Page 162

 1             JUDGE MERON:  So perhaps we would now go into a private session

 2     and deal with both of these remaining questions.

 3             MR. MIKULICIC:  Okay.

 4             JUDGE MERON:  So, Registrar, private session, please.  Tell us

 5     when we are ...

 6                           [Private session]

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

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18   (redacted)

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20   (redacted)

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23   (redacted)

24   (redacted)

25   (redacted)

Page 163











11  Page 163 redacted.  Private session.















Page 164

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 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16                           [Open session]

17             JUDGE MERON:  So if so, we will now -- sorry.

18             THE REGISTRAR:  We're back in open session, Your Honours.  Thank

19     you.

20             JUDGE MERON:  Yes.  We are in open session again.  Yes.

21             So we will now have a pause of 15 minutes.

22                           --- Recess taken at 3.56 p.m.

23                           --- On resuming at 4.14 p.m.

24             JUDGE MERON:  Please be seated.

25             Response by the Prosecution.  30 minutes.

Page 165

 1             MR. MIKULICIC:  Your Honour, if I may, just a brief word.

 2             JUDGE MERON:  Well, is it to the point?

 3             MR. MIKULICIC:  Now --

 4                           [Appeals Chamber confers]

 5             JUDGE MERON:  Also, my ... oh, terribly sorry.  I meant 1 hours

 6     and 30 minutes.

 7             MR. MIKULICIC:  Just a brief word, Your Honour.  As it goes with

 8     the consent of my client that we spoke on a private session.

 9             As we speak of the consent of my client that we just spoke.

10             JUDGE MERON:  Do we need to go into private session.

11             MR. MIKULICIC:  Now, we don't now.  We don't have to go to

12     private session.  He is consenting that his records, medical records will

13     be also revealed to the Appeals Chamber.  But, unfortunately, they were

14     only revealed to the Registry.  It was kind of mistake, so --

15             JUDGE MERON:  So this will be corrected and we will look at it.

16             MR. MIKULICIC:  Thank you very much, Your Honour.

17             JUDGE MERON:  Thank you so much.

18             1 hour, 30 minutes, Ms. Brady.

19             MS. BRADY:  Thank you very much and good afternoon, Your Honours.

20             My name is Helen Brady, and together with

21     Mr. Francois Boudreault, Mr. Todd Schneider, and Ms. Ingrid Elliott, we

22     will be responding now to Mr. Markac's appeal.

23             Your Honours, just to give you a batting order and a road map of

24     this afternoon's presentation, first, I will address the Trial Chamber's

25     conclusion that a joint criminal enterprise existed to permanently remove

Page 166

 1     the Serb civilians from the Krajina through deportation and forcible

 2     transfer, unlawful shelling and restrictive and discriminatory measures.

 3     This is directly responding to the first ground of appeal, 1A.

 4             In the course of my submissions on JCE, Your Honours, they will

 5     proceed on the basis of Trial Chamber's conclusion that an illegal

 6     artillery attack occurred during Operation Storm; that is, in accordance

 7     with the Trial Chamber's finding.  However, Your Honours, I will also

 8     briefly address the JCE findings on the premise of your question 4; that

 9     is, if the Trial Chamber's finding on the illegal artillery attacks were

10     to be found to be erroneous.

11             After me, Mr. Boudreault will then address the conclusion by the

12     Trial Chamber that Markac was a member of that JCE, that he significantly

13     contributed to it and he had the mens rea for the JCE crimes.

14             In relation to the unlawful shelling findings, my colleagues,

15     Mr. Stringer and Mr. Cross, this morning have already dealt at length

16     with this issue, and they've given very complete answers to our position

17     on questions 1, 2, and 3, so we will be fairly short in that regard.  We

18     will be adopting the position in our submissions this morning.  However,

19     Mr. Schneider will briefly address you on this issue in light of the

20     submissions that were made by Markac Defence.

21             And, finally, Your Honours, Ms. Elliott will respond briefly on

22     some features regarding the deportation findings, and, in particular,

23     that the shelling was the primary and direct cause of the departure of

24     the Serb civilian population from the Krajina.  And for the remainder of

25     the grounds we rely on our briefs.

Page 167

 1             I will turn first to the findings about joint criminal

 2     enterprise.

 3             Only one reasonable conclusion emerges from all the evidence, and

 4     that is that by no later than July 1995, a common criminal plan existed

 5     to remove the Serb civilian population from the Krajina on a permanent

 6     basis through forcible displacement, unlawful shelling and restrictive

 7     and discriminatory measures and Markac was a member of that JCE.

 8             Now, this afternoon, Markac, just as he did in his brief,

 9     deconstructs the factual findings.  I think his flow chart he -- going so

10     far to say that the factual findings are inverted, and he artificially

11     isolates factual findings and the evidence.  Your Honours, that is not

12     how a reasonable fact finder assesses evidence and makes finding, and nor

13     should it guide your review.  Instead, just as the Trial Chamber did,

14     this Chamber needs to take a holistic view based on all the evidence

15     considered together and not examine the facts and the evidence in this

16     deconstructed and artificial way and today in this afternoon's submission,

17     what I would like to do is to put this picture, the evidence and the

18     facts, back together again, as they were properly understood by the

19     Trial Chamber.

20             The first point I'd like to make is the critical importance of

21     examining the discussions at Brioni in their context.  In light of both

22     preceding and the later events, that's the context in which Brioni needs

23     to be examined.  Now, the actual discussion as recorded in the

24     transcript, P461, do form a very important part of the Trial Chamber's

25     findings.  I'd like to take Your Honours to key parts of those

Page 168

 1     discussions in just a moment.

 2             But it is equally important to stress that these discussions are

 3     one component within a much broader complex of evidence and facts and

 4     must be considered in that light.  And these events confirm that the

 5     meeting's true criminal objective.  The participants were not merely

 6     discussing and planning a military operation designed to defeat the SVK

 7     and retake the territory in the -- in that part of the Krajina.  They

 8     were discussing and planning an operation designed to take back that

 9     territory cleansed of the Serb civilians.  And this removal of the Serb

10     civilians was to be achieved by force or threat of force, including by

11     forcible displacements and shelling.

12             Your Honours, you cannot properly understand the Brioni

13     transcript, and I want to take you to these before I go to the details of

14     that discussion.  You cannot properly under the Brioni transcript and the

15     purpose behind this operation without considering the events preceding

16     that meeting.

17             This operation was, in many ways, the crowning achievement of a

18     policy which Croatian president and supreme commander of the armed

19     forces, Franjo Tudjman, had been pursuing for years, to create an

20     ethnically homogeneous Croatia or as ethnically as possible.

21     Ambassador Peter Galbraith, who -- a man who had frequent contact with

22     Tudjman and his associates over the relevant years, stated that:

23             "Tudjman thought that the Serbs in Croatia were too numerous and

24     constituted a strategic threat to Croatia."

25             That's in his 92 ter statement, paragraph 31, and it's in the

Page 169

 1     Trial Judgement at paragraph 1999.

 2             A month before Operation Storm, Tudjman had actually met with his

 3     national security council to discuss the settling of Croat emigres from

 4     abroad into the tens of thousands of Serb houses which had been abandoned

 5     in Western Slavonia during Operation Flash in May 1995.  And that comes

 6     from Trial Chamber finding 2060.

 7             Your Honours, just as importantly, you cannot approach the Brioni

 8     discussions without considering them in light of later events, what did

 9     unfold after this meeting.  And, briefly, within days of that meeting,

10     Croatian forces subjected the towns of Knin, Benkovac, and Obrovac, and

11     Gracac to an indiscriminate, unlawful artillery attack causing the mass

12     exodus of 20.000 civilians.  This finding is not -- the unlawful attack

13     findings were an important part of the Trial Chamber's analysis but we

14     disagree that it is linchpin in the way presented by Mr. Markac's

15     Defence.  In fact, all these pieces of evidence, Your Honour, have to be

16     seen as strands in a cable of evidence which point towards the guilt of

17     the accused rather than links in a chain.  Once one falls out, the rest

18     of the house of cards - or however it was put - topples.  That is not the

19     case.

20             Your Honours, another factor, apart from the actual

21     indiscriminate and unlawful attacks themselves, is that after this

22     operation, Operation Storm, Tudjman did set about implementing his

23     demographic policy.  He and other senior Croatian politicians and

24     military leaders expressed views, promulgated policies aimed at

25     encouraging ethnic Croats to come to the Krajina to re-populate it,

Page 170

 1     while, at the same time, advocated against the Serbs' return.  And hand

 2     in glove with that vision, policy and legislative measures were taken to

 3     prevent their return or at least make it much, much more difficult and

 4     therefore unlikely.  And I'm referring here to the laws and decrees

 5     passed in the ensuing months in August and September imposing very

 6     strict, tight 30- and 90-day deadlines for Serb civilians to reclaim

 7     their property or risk losing it to the state and given to Croats.

 8             And, finally, Your Honours, you must bear in mind that throughout

 9     the two-month period after this operation in August and September,

10     Croatian armed forces, the HV and special police, continued to commit

11     further crimes against Serbs and their property on a mass scale, torching

12     houses, looting property, carrying out murders and other inhumane acts

13     against the Serbs who did remain there and this triggered further

14     civilian departures from the area.

15             I'd like to now turn to take a closer look at the discussions at

16     Brioni themselves because, in our submission, the Trial Chamber reached

17     the only reasonable conclusion about these discussions.  And,

18     Your Honours, I point out that their finding about the discussions is in

19     paragraph 1995 of the trial Judgement, that the Trial Chamber found that

20     this discussion, this set of discussions, was, in itself, something from

21     which they could infer was a conversation about forcing civilians out,

22     rather than protecting civilians.  So that finding, they make that

23     finding about Brioni, independently, as it were, from the other findings.

24     But, of course, because they're making findings in light of their

25     previous findings, it would be very artificial if they tossed their

Page 171

 1     unlawful -- their decision on unlawful attacks out the window and then

 2     began to look at Brioni on its own.  That would not be a reasonable way

 3     of having approached Brioni.  But it is important to note that on its

 4     own, the Chamber was prepared to make that finding about the import of

 5     the Brioni discussions.

 6             So I'll turn to have a look now at the discussions themselves.

 7             As Tudjman and the others were pouring over maps, and this is in

 8     the presence of Gotovina and Markac, their main focus was whether, how,

 9     and when to launch an artillery attack against the SVK.  That is

10     something the Trial Chamber did find at paragraph 1990.  But these

11     operational discussions occurred within discussions aimed not just to

12     take back territory but to take it back cleansed or without the Serbs in

13     it by forcibly displacing them from that area.

14             Your Honours, you'll need to read the whole transcript, of

15     course.  And, today, in the time, I'll just highlight four exchanges that

16     we say shed particular light on what the discussions were truly about.

17             I think Mr. Jones said something like there's nothing in there to

18     show that there was this intent to deport.  And we think a very different

19     intent arises from these and other parts of -- of the discussions.

20             I will take you to the first one.  I think it should be on your

21     screen.  It's P461, the transcript of Brioni, and it's page 10.  This is

22     relatively early on in the meeting.  Tudjman observes that when they

23     undertake a general offensive "even greater panic will break out in Knin

24     than has to date."

25             President Tudjman then reminds them to remember "how many

Page 172

 1     Croatian villages and towns have been destroyed."

 2             And makes the remark, "but that's still not the situation in Knin

 3     today."

 4             After he urges them to resolve the UNCRO matter and by that it is

 5     how to avoid hitting it.  You can see this in another part of the

 6     discussion.  Tudjman then says this:

 7             "But their counter-attack from Knin and so forth, it would

 8     provide very good justification for this action, and accordingly we have

 9     the pretext to strike, if we can with artillery, if you can, for complete

10     demoralisation ... not just this ..."

11             And Gotovina replies:

12             "... if there is an order to strike at Knin, we will destroy it

13     in its entirety in a few hours."

14             Your Honours, turning to a second exchange, this one at page 15,

15     Tudjman here is speaking about giving ...

16                           [Appeals Chamber confers]

17             MS. BRADY:  Tudjman here is speaking he has just made the comment

18     about giving the civilians a way out and explains his reasoning for this.

19     He says:

20             "Because it is important that those civilians set out and then the

21     army will follow them, when -- then the army will follow them and when

22     the columns set out, they will have a psychological impact on each other."

23             Gotovina responds:

24             "A number of civilians are already evacuating Knin and heading

25     towards Banja Luka and Belgrade.  That means that if we continue this

Page 173

 1     pressure, probably for some time to come, there won't be so many

 2     civilians, just those who have to stay, who have no possibility of

 3     leaving."

 4             The final set of exchanges or comments during this meeting that I

 5     draw Your Honours' attention to are at pages 23 and 29 of the transcript.

 6             At this point, the discussion turns to using propaganda, and

 7     Miroslav Tudjman has suggested that information be given on the radio and

 8     TV as to the open routes.  Tudjman agrees with this idea, and he adds,

 9     it's on your screens:

10             "Yes, that should be said, not the fact that the routes are open,

11     but that it has been noticed that civilians are getting out by using such

12     and such route."

13             And then at page 29, Tudjman embraces the idea thrown out by

14     Susak of throwing leaflets as a further means of propaganda and

15     suggesting that they report a general chaos and Croatian victory with the

16     world's support.  And Tudjman makes a suggestion about what these

17     leaflets should say:

18             "Serbs, you are already withdrawing via, et cetera, ... and we

19     are calling upon you not to withdraw.  We guarantee you ...," and there's

20     a space, and he explains to the meeting.  This is a meeting at which both

21     Gotovina and Markac are at and participating or making suggestions on how

22     certain parts of the operations should be conducted.  He explains, "...

23     so in that way, to give them a road, while ostensibly guaranteeing them

24     civilian rights, et cetera ..."

25             And after which on the tape he is heard to give a laugh, a

Page 174

 1     chuckle.

 2             Now, Your Honours, several things stand out from these

 3     discussions.  In the first exchange, Tudjman notes the large number of

 4     destroyed Croatian villages and towns and notes that -- that's still not

 5     the case with Knin.  He and Gotovina then discuss striking Knin.  But

 6     unlike other parts of the discussion, when they do actually go on to

 7     discuss military strategy and even some targets in -- in -- targets in

 8     quite some detail, for other bits and pieces of the operation, when it

 9     comes to Knin, the discussants in the conversation say nothing about

10     striking only military targets there.  They say nothing about how to

11     protect Knin's civilian inhabitants.  Instead the comment is really about

12     using artillery strikes for complete demoralisation.

13             Your Honours, Gotovina's continuing pressure comment that we've

14     heard a bit about already today is also very telling.  This comment

15     acknowledges that the -- oh, I see my friend has stood up.

16             MR. MISETIC:  Mr. President, I think it was perhaps noted this

17     morning, and I sincerely regret interrupting the flow of the

18     Prosecution's presentation, but if we're going to continue to focus on

19     General Gotovina at Brioni with excerpts that were not put during the

20     Prosecution's response this morning to our appeal, and the focus thus far

21     has been on General Gotovina and Mr. Tudjman, then we would request that

22     if it continues at this pace that we be allowed at least five minutes to

23     respond or reply at the end.

24             Thank you.

25             JUDGE MERON:  I believe that Ms. Brady did not cite materials

Page 175

 1     which were not before us already.  But I was wondering, you are

 2     mentioning in the conversations in which Mr. Gotovina participated, did

 3     Mr. Markac take an active part in those discussions?

 4             MS. BRADY:  Your Honours --

 5             JUDGE MERON:  I mean, we are now on the Markac part.

 6             MS. BRADY:  Yes, I realise that.  But, Your Honours, I have to, I

 7     guess, describe the conversation as it's going during the course of that

 8     meeting, when two major members of that meeting are having discussions of

 9     this nature.  It's true that Markac, when actually his words are recorded

10     in the discussion, his comments are about what might be called very

11     military matters.  He's not the direct discussant.  However, in our

12     submission, and Mr. Boudreault will go into this in greater detail, he's

13     present at a discussion where the only clear meaning is one thing.  And

14     that's why we need to set the scene, as it were, about what Gotovina

15     says.

16             And just to take the other point that Mr. Misetic has -- has

17     said, actually, this morning, in my colleague's submissions, Ms. Baig and

18     Mr. Stringer, they both referred to this pressure comment by Gotovina.

19     But having said that, if he wishes to have a five-minute reply to what we

20     say, I have no objection to that.

21             JUDGE MERON:  Okay.  We will let you reply.  Five minutes when

22     this is over.

23             MS. BRADY:  Your Honours, Gotovina's continuing pressure comment

24     is also telling.  It acknowledges that the pressure that they be

25     applying - that is, the shelling - would be the cause or the trigger

Page 176

 1     of the Serbs leaving the area.  And in our submission, their comments

 2     show that the departure of the -- this comment shows that the departure

 3     of the Serbs was, indeed, the object of this and not merely an unintended

 4     foreseeable but unintended consequence.

 5             JUDGE MERON:  Counsel --

 6             MR. MISETIC:  I apologise again --

 7             JUDGE MERON:  -- you will have your few minutes to answer.

 8     Please so let Ms. Brady continue.

 9             MS. BRADY:  Your Honours, in other words, in this discussion they

10     are planning to exploit the fact that the Serbs were then in a demoralised

11     state and by their shelling to trigger their departure.

12             The exchanges on propaganda are also very revealing.  It makes

13     little or no sense to even discuss this kind of propaganda if the

14     discussants had simply been seeing this Serb departure as merely a

15     temporary measure or even an inevitable consequence of their attack

16     rather than its intended outcome.  And Tudjman's comment about giving

17     them a road while ostensibly guaranteeing their civil rights also, as the

18     Trial Chamber found, shows the true intent of this operation:  To show

19     the Serbs out, while at the same time giving the impression that they

20     could stay.  There would be no place for this sort of cynical comment if

21     the true intent was -- sorry, Your Honours.  This cynical comment would

22     have no place unless the true purpose was in fact to forcibly, that is,

23     to push out the Serbs from the region.

24             JUDGE MERON:  Ms. Brady, I really have some doubt whether you

25     should -- the gravamen of your argument to such an extent to be things

Page 177

 1     connected to Mr. Gotovina.  I did not interrupt you.  I listened to the

 2     counsel.  I think it would be more correct to focus on Mr. Markac now.

 3             MS. BRADY:  Yes, Your Honour.  But as I did explain, the meeting

 4     is taking place with various discussants, and he's present and making his

 5     contributions towards a certain -- certain angles of that discussion.

 6             Markac's interpretations of Brioni are not reasonably plausible.

 7     He basically argues that the discussions about leaving civilians a route

 8     out simply reflected a recognition that the Serbs were demoralised, they

 9     wouldn't stay in the area, if they were once again to be Croatian, and

10     would leave once the shelling began.  So he says their comments really --

11     merely aimed to serve legitimate military goals of further demoralising

12     the enemy and speeding up military victory and reducing their own

13     casualties.

14             This argument lacks evidentiary support and it doesn't stand up

15     to scrutiny.

16             Firstly, his argument calls for an assumption that the

17     discussants were planning a shelling attack against strictly military

18     targets.  But in this case, why would the participants assume that the

19     Serb civilians would simply, en masse, up and leave the towns and

20     villages where their families had lived for hundreds of years in the face

21     of such an artillery attack?  Witnesses in fact testified that they'd not

22     left during previous shelling attacks.  But even accepting for the

23     argument's sake that the discussants could have assumed that a number of

24     civilians would flee the attack, the shelling, we would expect to see in

25     their discussions a concern for civilian protection.  But as the

Page 178

 1     Trial Chamber found, there were no such discussions.  Instead, the

 2     discussions about civilians really focussed or were centred on ensuring

 3     that they would have a way out and then using those departures of the

 4     civilians to induce the army out and vice versa.

 5             Your Honours, while a swift military victory and a reduction in

 6     combatant losses may, in theory, be legitimate aims, that is, in a --

 7     when we have a military operation aimed at a military objective, they

 8     provide no justification when, as here, the operation is itself aimed at

 9     forcibly displacing a civilian population from the territory so that the

10     land can be taken without its inhabitants, a certain -- the Serb

11     civilians.  This is a patently illegal purpose.

12             My colleague, Ms. Baig, has already answered question 4, and I

13     won't rehearse what she said there.  But, in short, it's impermissible

14     for an army to plan an artillery operation with the aim or purpose of

15     deporting a civilian population.  This is the case even if it serves

16     another military purpose.  This is a very obvious proposition when an

17     artillery operation with a criminal purpose of deportation is carried out

18     by the criminal means of directly attacking civilians and civilian

19     objects in an indiscriminate shelling attack as the Trial Chamber found

20     in this case.

21             But it remains our case, it remains the case, even if the

22     artillery attacks were not found to be unlawful in the strict sense of

23     Articles 51 and 52 of Additional Protocol II.  IHL permits an army to

24     treat only --

25             JUDGE MERON:  Additional Protocol I.

Page 179

 1             MS. BRADY:  Sorry.  I meant Additional Protocol I, yes.  Sorry,

 2     Your Honour.

 3             IHL permits an army to treat only the enemy soldiers and military

 4     objects as objects of attack, while civilians may be removed from a

 5     conflict zone if imperative military reasons demand or for their own

 6     protection.  This has to be on a temporary basis and follow certain

 7     strict conditions.  If the true aim of the artillery attack is in fact to

 8     deport a civilian population, what may on its surface look like a legal

 9     artillery attack, is, in fact, unlawful because of that purpose.  And it

10     can amount to deportation and persecution as a crime against humanity, of

11     course, assuming the other elements are met.  There's no inconsistency

12     here between these crimes against humanity convictions and the

13     applications of the laws of war.

14             What the Brioni discussions show, Your Honours, is that when you

15     look at these discussions in light of preceding events and later events,

16     is that the participants were -- were aware of the difficult situation

17     facing the Serbs in Krajina and they knew that this could be exploited to

18     force them out.  And with this in mind, they planned a military artillery

19     attack with the aim of taking back the land and, at the same time,

20     forcibly displacing the Serbs from it.

21             Your Honours, events after Operation Storm confirm that the true

22     purpose was the removal of the Serb civilian population from the Krajina

23     by forcible means.  I won't repeat what's already been said about the

24     shelling attack itself which led the 20.000 civilians to flee in fright

25     nor about the crimes that happened in the ensuing two months against the

Page 180

 1     Serb civilians.  But, again, I'll highlight the many speeches, statements

 2     and policies made by Mr. Tudjman, President Tudjman, and others, in

 3     high-level positions about repopulating the area with Croats by placing

 4     Croats in formerly Serb homes and all measures to prevent the Serbs

 5     from returning.

 6             When asked in an interview a month after the operation if the

 7     Krajina Serbs would return home, Tudjman replied that:

 8             "The return of all of them is virtually unthinkable."

 9             At the same time, Croatian authorities were passing laws making

10     it very difficult, if not impossible, for the expelled Serbs to reclaim

11     their property and homes given those restrictive time limits and

12     difficulties they faced in re-entering the country from which they had

13     just been expelled.

14             Your Honours, the Trial Chamber rejected these laws were simply

15     aimed at protecting property and solving a temporary housing problem, but

16     were, in fact, passed to provide those Serb homes to incoming Croats and

17     thereby deprive Krajina Serbs of their homes and properties.  And the

18     many speeches, the Trial Chamber goes into some detail on the speeches

19     and the statements made publicly by Tudjman in the weeks and months after

20     Operation Storm.  I point Your Honours to just two of them.  On -- he is

21     speaking -- Tudjman is speaking at a public gathering in Knin on the

22     26th of August, a few weeks only after the operation, and he refers to

23     Knin and the Serbs who had fled like this.  He says referring to Knin:

24             "But today it is Croatian Knin and never again it will go back to

25     what it was before when they spread cancer which has been destroying

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 1     Croatian national being in the middle of Croatia and didn't allow

 2     Croatian people to be truly alone on its own."

 3             Later he said of the Serbs who fled:

 4             "They were gone in a few days as if they'd never been here.  They

 5     did not even have time to collect their rotten money and dirty

 6     underwear."

 7             And on the 5th of August, 1996, this is the one-year anniversary

 8     of the operation, when Tudjman was addressing the troops in Knin, he

 9     said:

10             "We have returned Zvonimir's Croatian town to the fold of its

11     motherland Croatia as pure as it was in Zvonimir's time."

12             Your Honours, the Trial Chamber's JCE conclusion is firmly based

13     on all of the evidence:  Tudjman and others' ideas and policies for

14     Croatia, the Brioni discussions, the indiscriminate attacks which did

15     actually occur after this, the ensuing mass departures, the crime wave in

16     the August/September period, the policies, the speeches, the property

17     laws.  From this, only one picture emerges: that there was a common

18     criminal plan to remove the Serb civilian population from the Krajina on

19     a permanent basis by the crimes of forcible displacement, unlawful

20     attacks and restrictive and discriminatory measures.

21             Markac's appeal on this ground must fail.  Your Honours, unless

22     you have questions for me, Mr. Boudreault will now address on grounds 1B

23     and C, more specifically on how Markac links to that JCE which I've just

24     shown was the only reasonable conclusion [Overlapping speakers] dealing

25     with membership and contribution --

Page 182

 1             JUDGE MERON:  Ms. Brady, I mentioned, I think, earlier today,

 2     that the Trial Chamber concluded that the evacuation orders were not a

 3     primary cause for departure.  So did it have any role to play?  How would

 4     you assess the role of the evacuation orders issued by the Serb

 5     authorities?

 6             MS. BRADY:  Yes, Your Honour.  My colleague Ms. Elliott will

 7     briefly address you on that question.

 8             JUDGE MERON:  Thank you.

 9             MS. BRADY:  In effect, it did not -- it was not the cause or the

10     trigger for the departures as a causation [Overlapping speakers] ...

11             JUDGE MERON:  So it had no impact?

12             MS. BRADY:  No, Your Honour.  Unless you can read something about

13     that into the intent for the JCE.  But in our submission, it would not

14     affect either the mens rea for the JCE, the fact that discussions were

15     going on.  If Your Honour is meaning the fact that discussions were going

16     on to evacuate and that's something that the participants knew about,

17     that might have affect the finding on JCE intent --

18             JUDGE MERON:  No, my question is very simple:  Did the evacuation

19     order cause some people to depart in listening, in abiding with the order

20     or not at all?

21             MS. BRADY:  Sorry.  Not the bulk.  The mass, the en masse

22     departure of the Serb civilians was occurring much earlier; indeed, early

23     hours of the morning up through the middle of the day.  And this

24     evacuation order came too late, Your Honours, in our submission.

25             JUDGE MERON:  So the answer is:  Partially yes.  Some people left

Page 183

 1     in response to it.  None.  Some thousands.  Some hundreds?

 2             MS. BRADY:  Your Honour, if I may leave that for Ms. Elliott --

 3             JUDGE MERON:  Please.

 4             MS. BRADY:  -- she is really the expert on that issue.

 5             JUDGE MERON:  Please.

 6             MS. BRADY:  Thank you.

 7             MS. ELLIOTT:  Your Honours, slightly out of order, but in order

 8     to answer this specific question on evacuation order, perhaps I can very

 9     briefly address you now.

10             I think it is helpful to consider a short time-line of a day's

11     events to illustrate and support the reasonableness of the

12     Trial Chamber's findings on the cause-and-effect relationship between the

13     shelling and the sudden civilian flight.

14             The shelling attack in Knin, Benkovac, and Gracac started at

15     5.00 a.m.  Civilians initially hid in their basements in fear and panic.

16     At 7.00 a.m., the attack in Obrovac town started.  Civilians there

17     immediately fled.  Later in the morning, first in Gracac, and then

18     towards noon in Knin, lulls in the intense shelling allowed people to

19     escape from their basements and flee.  The mass flight continued during

20     the afternoon, including from Benkovac.  By 5.00 p.m., the civilian

21     population was already leaving Knin on a massive scale.  And I would

22     refer you to Trial Judgement paragraph 1531.  The only escape route from

23     Knin left open by the HV was clogged.  Witness describes some of the

24     towns are deserted by evening.

25             So turning to the evacuation order, the existence of this order

Page 184

 1     is not in doubt.  However, the time-line shows that the evacuation order

 2     revealed only to civilian protection for the first time at 6.00 p.m.

 3     could not be the trigger for the mass civilian flight which started 11

 4     hours earlier.

 5             As you have already heard, by 5.00 p.m. the population flight was

 6     described as massive.  The Chamber's extensive and reasonable analysis of

 7     the role of the evacuation order also showed that the RSK authorities

 8     were panicked, disorganised, and unprepared to effect any evacuation

 9     plan.  The evacuation request for assistance to the UN were not followed

10     up.  The evacuation order was poorly disseminated by the RSK authorities

11     and I would also pause here to note that there was civilian -- there was

12     Croatian propaganda also involved in this point, as planned in Brioni.

13     And I would refer Your Honours to the Trial Judgement at paragraphs 1526

14     to 1527, and 1538.

15             The order was simply ineffective.  The Chamber was reasonable to

16     dismiss the evacuation order as an alternative trigger.

17             That would be our answer on the evacuation order, unless I can

18     assist further.

19             Thank you.

20             MR. BOUDREAULT:  Good afternoon, Your Honours.  As my colleague,

21     Ms. Brady announced, I will respond to grounds 1B and 1C of Markac's

22     appeal and show that he was reasonably and correctly convicted under JCE.

23             In our submissions, this remains whether the Appeals Chamber

24     agrees with our primary contention that the artillery attack was unlawful

25     or with our alternative submission that the attack was unlawful

Page 185

 1     because it aimed at removing the civilian population in violation of the

 2     principles of distinction in humanity.  In either case, Markac

 3     contributed to the criminal plan to remove the Serb population in the

 4     following ways:

 5             First, he was involved in the planning of the operation which led

 6     to the forcible removal of thousands of Krajina Serbs.

 7             Second, he ordered the unlawful shelling of Gracac which

 8     triggered the flight of the town's inhabitants.

 9             Third, he failed to prevent, punish or report the crimes of his

10     subordinates against Serb civilians and their property.  In this climate

11     of impunity, his subordinates were encouraged and continued to commit

12     crimes which led to further forced departures.

13             Markac's participation in the criminal plan was intentional and

14     determined.  He was involved from the very beginning in planning and

15     ordering the unlawful attack.  He saw the massive flight of civilians

16     this attack caused and knew that only a limited number of vulnerable Serb

17     civilians would remain in the Krajina, those who had no possibility to

18     leave.

19             As the commander of the special police, he should have been

20     protecting those remaining Serbs, but, instead, he gave impunity to his

21     subordinates to continue persecuting them.  He was even activity involved

22     in covering up some of these crimes.  Given all of this, the Chamber came

23     to the only reasonable conclusion, that Markac had JCE intent.

24             Markac was also aware of the possibility and willingly took the

25     risk that JCE 3 crimes be committed.  He knew that the criminal plan was

Page 186

 1     to expel as many Serbs as possible by using force or threat of force.  He

 2     was aware of the heightened ethnic tensions surrounding the operation,

 3     the revenge motivations harboured by Croatian forces and the vulnerable

 4     position of the remaining Serbs in the area.

 5             The Chamber properly convicted Markac for the JCE 1 and JCE 3

 6     crimes.

 7             In grounds 1B and 1C Markac fails to show any legal or factual

 8     error in the Chamber's findings, much less an error which would affect

 9     the verdict.  These grounds should be dismissed in their entirety.

10             Now, today, I will discuss Markac's participation in planning

11     Operation Storm, his order to shell Gracac, and his failure to act

12     against the crimes of his subordinates.  For the remainder, and in

13     particular with respect to legal issues, the Prosecution relies on its

14     written submissions.

15             I turn first to Markac's involvement in planning Operation Storm.

16             As explained by my colleague Ms. Brady, at Brioni, the Croatian

17     leadership agreed not just to an operation to retake the Krajina but also

18     to force out the Serb population.  Markac actively participated in this

19     meeting.  He and President Tudjman discussed the operations on Gracac

20     with Tudjman instructing Markac to enter and report that he has entered

21     Gracac as soon as possible, as this would lead to even greater panic than

22     shelling the town for two days.  That's's Exhibit P461 at page 18.

23             Markac proposed accusing the Serbs of having launched a sabotage

24     attack as a pretext for launching Operation Storm.  That's Exhibit P461

25     at pages 19 and 20.

Page 187

 1             Markac also discussed details with Gotovina and Tudjman,

 2     including destroying the enemy's communication system to bring about

 3     total chaos.  It's at pages 24 and 25 of the exhibit.

 4             He then met with Gotovina and Rajcic to co-ordinate the artillery

 5     attack on the towns.  He then ordered the attack on Gracac.  That's at

 6     Trial Judgement 2583.

 7             In these circumstances, the Chamber reasonably found that

 8     Markac's participation at Brioni and in the following meeting of the

 9     3rd of August furthered the criminal plan to expel the Krajina Serbs.

10     The Chamber also properly relied on this, together with other facts, to

11     conclude to Markac's JCE intent.

12             I turn next to Markac's order to shell Gracac.  The Trial Chamber

13     reasonably found that Markac ordered an unlawful artillery attack on

14     Gracac and that it was a significant contribution to the common plan in

15     and of itself.  It also reasonably relied on Markac's order to conclude

16     to his JCE intent.  I will highlight four key points that confirm the

17     reasonableness of the Chamber's conclusion.

18             First, Markac knew full well of the criminal plan to use an

19     attack to forcibly remove the Krajina Serbs.  He was present at Brioni.

20     He was then involved in the discussions with Gotovina and Rajcic to

21     co-ordinate the use of artillery on the Krajina towns.

22             Second, a report of the special police to Cervenko states that at

23     5.15 a.m. on 4 August 1995, "on the orders of operation commander

24     Colonel-General Mladen Markac," the chief of artillery launched the

25     artillery attack in the area of the responsibility of the special police.

Page 188

 1     That's Exhibit P614 at page 6, discussed at Trial Judgement at

 2     paragraph 2555.

 3             It's around that time, 5.15 a.m. on 4 August that shells started

 4     landing on Gracac.  That's at paragraph 1451 of the Judgement.

 5             Third, the unlawful attack on Gracac was perpetrated by the

 6     special police and HV assets that had been resubordinated to the special

 7     police.  That's at Trial Judgement 1452 and 2561.

 8             Markac could command and control both these groups.  Trial

 9     Judgement, paragraph 194 and 196.

10             The fourth point that I want to mention is the fact that the

11     attack on Gracac was a major operation, was carried out in an organised

12     manner, and was reported up the chain of command.  There's nothing to

13     suggest that the shelling of Gracac was done by Markac's subordinates at

14     their own initiative and without his approval.

15             So the Chamber was faced with an unlawful attack in accordance

16     with the criminal plan known to Markac which fit squarely with the order

17     given by Markac, perpetrated by units controlled by Markac and which was

18     carried out in an organised way and reported up the chain of command.  In

19     these circumstances, the Chamber reached the only reasonable conclusion

20     that Markac ordered the unlawful shelling of Gracac.

21             I turn now to Markac's behaviour in relation to the crimes of his

22     subordinates.  This is a point that has been completely ignored in

23     Markac's submission today.  Markac took no steps to prevent, report or

24     punish crimes committed by his subordinates in Gracac on the 5th and

25     6th of August and in Donji Lapac on the 7th and 8th of August.  He then

Page 189

 1     failed to address the crimes of the special police in Grubori and

 2     Ramljane, even participating in their covering up.  Markac's conduct

 3     contributed to the creation of a climate of impunity.  It encouraged the

 4     commission of further crimes against Krajina Serbs and led to further

 5     Serb departures.

 6             The Chamber properly found that these deliberate and repeated

 7     failures to address the crimes contributed to the criminal plan to

 8     forcibly remove and persecute the Krajina Serbs, and that Markac intended

 9     that result.

10             Markac says in his written submissions that he did not know about

11     the wanton destruction by subordinates in Gracac and Donji Lapac.  Now, I

12     would simply refer to our submissions in our respondent's brief on this,

13     and say that, first, the special police burned and destroyed Gracac on

14     the afternoon of 5 August and the morning of 6th August while Markac was

15     present in town with them.  The Chamber found that he would have seen the

16     burning by his subordinates.  Paragraph 2571.  This is the only

17     reasonable conclusion given that all the houses in Gracac had been

18     partially or totally burned during that time.  That's Trial Judgement

19     697.

20             Markac was also informed of the wanton destruction in Donji Lapac

21     while his subordinates were there on 7 and 8 of August.  The Chamber

22     reasonably inferred this fact because Markac was regularly informed of

23     developments on the grounds by a variety of sources.  The destruction of

24     Donji Lapac by the special police was a major event on the 7th of August.

25     Markac's deputy Sacic admitted that he was told on 9 of August, 1995,

Page 190

 1     that Donji Lapac was burning.  That's noted at Trial Judgement 611,

 2     referring to transcript 27791-27792.  This would certainly have been

 3     reported to Markac.  In fact, the burning of Donji Lapac by the

 4     special police was so widely known that it was even discussed at a

 5     meeting between Tudjman, Cervenko, Gotovina and other high ranking

 6     military officials.  That's exhibit 470, pages 53 and 54, Trial Judgement

 7     2039.

 8             Markac also argues that he did not cover up the crimes of his

 9     subordinates at Grubori and Ramljane but he fails to show the Chamber's

10     findings were unreasonable.  In relation to Grubori, the Chamber found

11     that the Lucko Unit of the special police murdered five Serb civilians in

12     the course of an operation on 25 August.  The Lucko Unit also burned

13     houses and shot or burned animals without military justification.  The

14     murder victims were elderly and vulnerable, exactly the people Gotovina

15     had predicted would not be able to leave the Krajina.  They included two

16     elderly men and two women, one of which was aged 89 or 90.  That's at

17     Trial Judgement 389-390.

18             Josip Celic, the assistant commander of the Lucko Unit, first

19     reported up the chain of command that nothing particular had happened

20     during the operation.  However, Markac and his deputy Sacic soon became

21     aware that something had gone wrong, that persons had been killed.  This

22     was also widely known among international observers.  Instead of

23     investigating and taking measures to report or punish the responsible

24     persons, Markac and Sacic had Celic change his report to state that the

25     killings and burning had occurred as a result of a clash with "armed

Page 191

 1     Chetniks" or terrorists.  That's at Trial Judgement 2297 and 2300.

 2             Markac then forwarded this report to Cervenko.  He sought to

 3     strengthen this false account by ordering renewed reports by the

 4     Lucko Unit matching the clash with terrorists story.  Markac was also

 5     involved in efforts to prevent on-site investigation into these crimes.

 6     Trial Judgement 2300.

 7             In these circumstances, the Chamber reasonably concluded that

 8     Markac participated in the cover-up of the Grubori crimes.  Markac simply

 9     fails to show any error in those findings.

10             With respect to Ramljane, Markac knew on the afternoon of

11     26 August 1995 that members of the Lucko Unit had committed arson.

12     That's at Trial Judgement 2302.  He learned this from various sources.

13     He was present just outside the village the same day and saw the smoke

14     rising from the building.  Trial Judgement 1077, 2297.

15             One of the group leaders in the Lucko Unit admitted to Markac

16     that he had deliberately burned Serb property.  Trial Judgement 1077.

17             Markac allegedly declared that there would be investigations and

18     disciplinary matters, but instead on following through on his word, he

19     advanced a false account that the incident was a response to terrorist

20     activity.  That's at Trial Judgement 2238 and 2302, and the exhibit is

21     P579, page 3.  It's a report of this false account of Markac to Cervenko.

22             Markac also argues that his failures to take actions in relation

23     to his subordinates' crimes and his participation in the cover-ups did

24     not contribute to the criminal plan.  The Chamber carefully considered

25     this question.  It gave example of how Markac's conduct led to his

Page 192

 1     subordinates committing further crimes and further deportation.  That's

 2     at Trial Judgement 2581.  Markac fails to show this was unreasonable.

 3             He also fails to show the Chamber erred in finding that his

 4     failure and his involvement in the cover-ups showed his JCE intent.

 5     Markac knew that further crimes against Serb civilians would lead to

 6     further forced departure; yet, he encouraged those further crimes.  This

 7     was reasonably found an indication of Markac JCE intent.

 8             So to conclude on ground 1B, Markac simply fails to show an error

 9     in the Chamber's finding that he significantly contributed to the

10     criminal plan and did so with JCE intent.  I will be very briefly on

11     ground -- on ground 1C in relation to the JCE 3 conviction.

12             We submit that the Chamber reasonably found that the crimes were

13     committed were a natural and foreseeable consequences of the JCE and that

14     Markac was aware of the possibility.  I would refer you to paragraphs 139

15     to 156 of our response brief.  But I would say this:  Markac has argued

16     today that he chose people from outside the region to limit the risk of

17     crimes such as murder, plunder, and wanton instruction.  Now the

18     Trial Chamber noted this assertion that Markac had made in his interview

19     with the Prosecution.  But it found this purported measure was obviously

20     insufficient to dispel the possibility of crimes being committed against

21     Serb civilians.  The measure did not address the broader revenge

22     sentiment held by members of the Croatian forces which were based not

23     only on the specific connection with the local areas but also on the

24     general enmity towards the Serb takeover of Croatian territory.  In the

25     past, these ethnic tensions had resulted in crimes on both sides:  So,

Page 193

 1     Serb crimes against Croats and Croat crimes against Serbs.  Particularly

 2     in previous Croatian military operations, such as Medak and Flash, there

 3     had been some incidents of deportation of Serb civilians and attacks on

 4     them and their possessions.  Markac knew that the -- of the accusation of

 5     international observers that Croatian forces had destroyed Serb property

 6     when withdrawing after the Medak pocket operation in 1993.

 7             Now you can find more on this in paragraphs 149 and 150 of our

 8     respondent's brief, and we refer to Trial Judgement paragraph 1683, 2003

 9     and 2585.

10             So for these reasons Markac's grounds 1B and 1C should be

11     dismissed.

12             Your Honours, we do not intend to go and address grounds 2, 3, 5,

13     and 6 of Markac's appeal.  But I only want to raise an argument -- I want

14     to address an argument that has been raised for the first time in

15     Markac's reply, in relation to ground 6.  And I want to deal with a

16     question Your Honour raised a little earlier concerning P82.

17             So concerning ground 6.  At paragraph 153 of his reply, Markac

18     asserts that he was not on notice that the Orahovac murders were

19     perpetrated by the special police.  However, the Prosecution pre-trial

20     brief at paragraph 124 specifically alleges that the special police was

21     responsible for these murders.  In addition, both parties addressed the

22     issue of who murdered the Serb civilians and the uniform they were

23     wearing during Witness Ilic's testimony.  As to Markac's

24     cross-examination on this, I would refer you to transcript 7574 to 7578.

25             Now the point about P82.  I don't think we need to go into closed

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 1     session.  I will stick to the Judgement.

 2             The Trial Chamber was well aware that there were laps of memory

 3     and significantly inconsistency that emerged during the testimony of

 4     Witness 82, and that's at paragraph 625 of the Trial Judgement.  It found

 5     that it would rely on this testimony only to the extent it was

 6     corroborated by other evidence.

 7             Now, it is important to understand corroboration doesn't need to

 8     be on every single detail.  I would refer you -- Your Honours, in this

 9     connection, to the Nahimana Appeal Judgement at paragraph 428.  So the

10     Trial Chamber here found that there was corroboration on the story of

11     P82, on all the major elements of his testimony.  The Defence today

12     simply failed to show any error in this by referring to vague problems

13     relating to P82.

14             So unless Your Honours have further questions, Mr. Schneider will

15     now show the Chamber properly found Gracac was unlawfully shelled.

16             JUDGE MERON:  Mr. Schneider.

17             MR. SCHNEIDER:  Good afternoon, Your Honours.

18             At General Markac' order, special police and HV artillery units

19     treated the whole town of Gracac as its target when they fired at least

20     150 rounds into this town on 4 and 5 August 1995.  This was an unlawful

21     attack.  The Trial Chamber's findings were reasonable and Markac's

22     arguments should be dismissed.

23             In addition to responding to his arguments, I will answer

24     questions 1, 2, and 3 from the Scheduling Order addendum.  To be clear,

25     the Prosecution's answers this morning to questions 1, 2, and 3 apply to

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 1     all four towns, including Gracac.  I am just going to highlight a few

 2     points specific to Gracac itself that were overlooked by Markac in his

 3     answers to these same questions.

 4             With regard to the unlawful shelling of Gracac, I will not repeat

 5     our submissions this morning on why the attack on all four towns,

 6     including Gracac, was unlawful.  I am focussing on Gracac but the

 7     shelling of this town cannot be examined on its own.  It must be

 8     considered in the context of the overall unlawful attack and the overall

 9     common criminal plan.

10             The Chamber relied on wide range of evidence on finding there was

11     an unlawful attack against Gracac.  First, we have the plain text of

12     three orders instructing artillery units to put Gracac itself under

13     artillery fire.  This is in Gotovina's order and Exhibit P1125.  This is

14     in his chief of artillery Rajcic's attachment to that order,

15     Exhibit D970.  And, at this point, I would clarify Prosecution counsel

16     this morning referred to this exhibit as D97.  It was D970.

17             Finally the third order was in the order of Marijan First, the

18     Operation Group Zadar chief of artillery.  That is Exhibit P1201.  In

19     line with the three orders to put the town under artillery fire, we have

20     reports that the artillery units did just that.  So we have special

21     police units, artillery units reporting several times they fired simply

22     at Gracac.  That's at Exhibit P2436.

23             These units noted other times that there is artillery fire

24     targeting Gracac at Exhibit P2385.  Apart from these orders to the units

25     and the reports in response to these orders we have the co-ordination of

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 1     the unlawful attack of Gracac with the unlawful attacks against the other

 2     three towns.  On this point, I would first note the 3 August 1995 meeting

 3     between Markac and Gotovina, the JCE members, and others, to plan the

 4     illegal attack on Gracac.  Also, the artillery units that opened fire on

 5     Gracac did so at the same time other units were firing into the towns of

 6     Knin, Benkovac, and Obrovac.  This co-ordination was the result of the

 7     fact that shelling of Gracac was just one part of the unlawful attack on

 8     the four towns, which itself was one part of the common criminal plan to

 9     permanently displace the Serb civilian population.

10             All of the evidence I've just discussed demonstrates the

11     reasonableness of the Trial Chamber's finding that there was an unlawful

12     attack against Gracac.

13             I turn now to question 1.

14             The Trial Chamber did not err in applying a 200-metre margin of

15     error in analysing the lawfulness of the artillery shelling in Gracac

16     itself.  Special police and Croatian army units fired on Gracac with a

17     specific type of weaponry, 130-millimetre guns, at paragraph 1452.

18     Rajcic had given evidence on the margin of error for these same guns.

19     His calculation for this margin was based on these 130-millimetres guns

20     being 26 kilometres away from Knin.  And I refer you to paragraph 1237 of

21     the Judgement.  For Gracac, these exact same guns were 3 kilometres

22     closer at 23 kilometres away.  Again, paragraph 1452.

23             Prosecution artillery expert Harry Konings explained that the

24     margin of error for a particular weapon goes down as the guns are moved

25     closer to a target.  This is in paragraph 1165 of the Judgement.  Given

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 1     this evidence from Konings, the fact that the 130-millimetre guns fired

 2     on Gracac were 3 kilometres closer than those of Rajcic's evidence, and,

 3     again, recall he had presented a margin of error of 70 to 75 metres front

 4     or back, and 15 metres right or left.  And this is at Judgement

 5     paragraph 1237.

 6             His figures should be adjusted lower for the shelling of Gracac

 7     itself.  Given this, the 200-metre margin of error was reasonable based

 8     on the evidence available to the Trial Chamber.  As an aside at this

 9     moment, I would like to respond to arguments raised today about an

10     alleged inconsistency in the Prosecution relying on certain evidence by

11     Rajcic, such as this, versus his other evidence that there was no order

12     to treat the towns as targets.  There is no inconsistency in this regard.

13     Rajcic's testimony on the interpretation of Gotovina's order went not

14     only to that piece of evidence but to Rajcic's own order itself which

15     repeated the same direction to artillery units to put the towns under

16     fire.  If Gotovina's order was illegal, so was Rajcic's.

17             In the Judgement, Trial Chamber correctly observed that personal

18     bias or motive to avoid incriminates oneself could affect the credibility

19     of a witness's testimony.  This is noted in the Judgement paragraph 31.

20     This consideration fully applied to the Trial Chamber's assessment of

21     Rajcic's strained interpretation of the attack order that he and Gotovina

22     issued.  And I would add that this applies with equal force to the

23     evidence of Turkalj relied on today by the Markac Defence.  Like Rajcic,

24     Turkalj fell within the class of witnesses who wanted to avoid

25     incriminating themselves because Turkalj was the commander of the special

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 1     police artillery unit that had fired into Gracac and treated the whole

 2     town as target.  Trial Chamber reasonably rejected this self-serving

 3     account, in light of the other evidence I've already discussed today.

 4             As to who called -- and I should have followed up when I was on

 5     Rajcic, but to return to Rajcic for a moment as to who called Rajcic as a

 6     witness.  We note that the Defence submitted a witness statement from

 7     this same witness, Rajcic, at D1425.  More importantly than that, no

 8     party owns or controls a witness.  It is for the Trial Chamber to

 9     evaluate on its own, regardless of which party called a witness, the

10     credibility of the witness's evidence.

11             Turning to question 2.  The Trial Chamber's conclusions about

12     impact sites in Gracac should be upheld even assuming the margin of error

13     used by the Trial Chamber was erroneous.  What is important is that the

14     Trial Chamber found that shells landed in locations all over Gracac, all

15     four corners of the town, and in the middle.  I refer you to Judgement

16     paragraphs 1456 through 1459 and the map exhibits cited there.  This

17     spread of fire across the entire town helped show the town itself was a

18     target.

19             Secondly, the Chamber found that some of these shells landed near

20     homes, civilian objects.  Of these, some landed up to 800 metres away

21     from the nearest military target.  And to briefly address a point raised

22     today, the Prosecution did establish the civilian nature of these homes

23     that were hit.  There was no reversal of the burden of proof.  What is

24     instead important is that this large distance up to 800 metres between

25     military targets and shell impact again helps to show an intent to target

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 1     the town itself and not just military targets within it.

 2             Today, you've heard different figures as to the distance between

 3     UN observer Hermann Steenbergen's house and the nearest military target.

 4     The Markac Defence has asserted it was only 450 metres away from an item

 5     on the Jagoda list; Exhibit D1447.  However, this was an unsigned,

 6     undated list of possible targets from which actual targets might be

 7     selected.  I refer you to Judgement paragraph 1403.

 8             More importantly, the Trial Chamber did not accept that items on

 9     this list were actually aimed at during the shelling of Gracac.  That is

10     noted in the Judgement at paragraphs 1423 and 1454.

11             Given this, the shells that struck Steenbergen's house were 800

12     metres away from the nearest military target, no reliance should be

13     placed on the Jagoda list.

14             On related matter as a possible target, the argument today that

15     there were potential targets of opportunity in Gracac being aimed at when

16     the shells hit these houses hit -- at or near these houses has no merit.

17     The Chamber reasonably rejected this possibility based on the following:

18             First, the shells that impact -- did near -- forgive me,

19     Your Honours.

20             The shells that impacted near Gacesa and Steenbergen's houses did

21     so at 5.00 a.m. on 4 August 1995.  This is noted in the Judgement,

22     paragraph 1932.  The Trial Chamber found there is no enemy troop movement

23     from the SVK at this time in the morning to be possible targets of

24     opportunity and no forward observers is being used at that time to help

25     identify any such targets.  Indeed, the town itself had, as the Trial

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 1     Chamber found, minimal, if any, SVK presence.  Given all of this, there

 2     was no reversal of the burden of proof as to targets of opportunity or

 3     the lack thereof, rather, as the Trial Chamber's reasonable evaluation of

 4     this evidence as a whole that led it to reject the possibility of such

 5     targets in this particular instance.  Turning now to question 3, the

 6     Trial Chamber's finding that an illegal artillery attack took place

 7     against Gracac should be upheld even assuming any error with impact site

 8     conclusions noted in the Judgement for Gracac itself.  We have the three

 9     orders to put the town itself under artillery fire.  We have the

10     corresponding reports from artillery units showing that the town itself

11     was treated as the target.  We have JCE members Markac and Gotovina

12     planning this illegal attack.  Beyond Gracac itself, we have the unlawful

13     attack on the other three towns occurring at exactly the same time as

14     this attack.  In particular, for those other towns, I would refer to the

15     evidence cited this morning by Mr. Stringer and Mr. Cross, but would note

16     in particular the eye-witness accounts of indiscriminate shelling and the

17     disproportionate attack on Martic to show that the unlawful attack on all

18     four towns was a reasonable finding.

19             All of this evidence I've just mentioned does not change based on

20     a margin of error or impact site conclusions.  When all this evidence is

21     considered as a whole, it leads to the only reasonable conclusion that

22     Gracac was unlawfully attacked pursuant to Markac's order.

23             This is especially true given the very limited number of known

24     impact sites we had within the town of Gracac itself.  That cannot

25     outweigh the other very strong compelling evidence I've just mentioned.

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 1             At this point I want to note that earlier today Markac Defence

 2     accepted that the fact that shells impacted near the two houses in Gracac

 3     was the result of error and could have been up to 20 rounds itself.  The

 4     point here is whatever the margin of error was, it remains that Croatian

 5     forces disregarded the risk of civilian casualties when they shelled

 6     Gracac.  We know this based on the following:  The artillery units fired

 7     at least 150 rounds into the small town of Gracac in just a day and a

 8     half.  They did so using artillery that was inaccurate anywhere between

 9     300 and 800 metres.  They did so when aiming at a handful, as noted

10     earlier, of military targets that in truth were a limited military

11     advantage.  They did so into a town with minimal, if any, enemy troop

12     presence.  All of this shows a disregard for civilian casualties, which

13     helps further show the attack itself was unlawful.

14             The Trial Chamber's findings that the special police and Croatian

15     army artillery units at Markac's order treated the whole town of Gracac

16     as a target and thus engaged in an unlawful attack should be upheld.

17             To draw the Prosecution's response to Markac to a close, the

18     Chamber properly found that Gotovina, Markac and others, acted together

19     in a joint criminal enterprise aimed at permanently removing as many Serb

20     civilians from the Krajina as possible.  To achieve this, they unleashed

21     a concerted intensive and unlawful attack against the civilians of Knin,

22     Benkovac, Obrovac, and Gracac, which sparked the terrified flight of at

23     least 20.000 civilians from the region.  Further deportations were

24     triggered by the unchecked wave of crimes by HV and special police as

25     they swept through the territory after the initial attack, killing,

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 1     abusing, looting, and burning.  The implementation of discriminatory

 2     measures cemented the deportation, making return for the Serb civilians

 3     impossible.

 4             Markac's appeal should be dismissed in its entirety.  He has

 5     failed to show that the Trial Chamber any error which would invalidate

 6     the Judgement or any unreasonable factual findings that would result in a

 7     miscarriage of justice.

 8             This concludes my submissions, unless you have questions.

 9             JUDGE MERON:  Thank you.  We have no questions, so therefore we

10     will now have a pause of 15 minutes.

11             We will reconvene at five minutes before 6.00.

12                           --- Recess taken at 5.40 p.m.

13                           --- On resuming at 5.55 p.m.

14             JUDGE MERON:  Please be seated.

15             We will now have reply by Markac, 30 minutes, and then the

16     counsel for Mr. Gotovina as agreed will have five minutes or so to

17     respond.  After that, Mr. Gotovina will be invited, if he wishes to have

18     ten minutes personal address, and, as well, Mr. Markac.

19             MR. JONES:  Thank you, Your Honour.

20             Your Honour, the Prosecution seems to be under two

21     misapprehensions, if I may put it that way.  The first misapprehension is

22     that we're defending President Tudjman.  He is not our client, Markac is.

23     We heard about Tudjman's inflammatory speeches on the 26th of August,

24     1995, three weeks after the alleged artillery attacks, but we have heard

25     very little about General Markac.  And I will return to that in a moment.

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 1             The second misapprehension seemed to be that their response today

 2     was simply an opportunity to restate their response brief to respond to

 3     our written pleadings.

 4             Now, of course, the purpose of their response was to respond to

 5     our oral submissions made today, and they said nothing about my

 6     submissions, nothing about how it all hangs on an unlawful artillery

 7     attack finding.  They didn't respond at all.  They gave what sounded very

 8     much like a closing speech after a trial, punctuated by the mantra that

 9     we've shown no error.  And they gave no answer because there is no

10     answer.  And we're sure that the Appeals Chamber will draw the necessary

11     inferences from their failure to respond.

12             So we're not going to respond to all the points which are not

13     responses at all.  We simply refer the Appeals Chamber to our appeals

14     briefs, and especially in regard to crimes in Donji Lapac and at Grubori,

15     we have a full response in our briefs and we won't repeat it.  It is

16     completely denied, completely and utterly denied that there was any

17     failure to prevent or punish, and on the contrary, as you've heard today,

18     Markac tried to prevent crimes and yet the Trial Chamber used it against

19     him.

20             And I did want to just refer Your Honours to Blaskic

21     paragraph 602 where the Chamber said this:

22             "In concluding that the Appellant knew of the crimes that were

23     being committed, the Trial Chamber further relied upon orders issued by

24     the Appellant directing personnel under his command to treat the

25     detainees according to the requirements of humanitarian law.  This is a

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 1     finds with which the Appeals Chamber cannot agree.  In relying on those

 2     orders, the Trial Chamber effectively sanctioned the Appellant for

 3     fulfilling his duty as a military officer to prevent and punish

 4     violations of humanitarian law.  Evidence of the execution of that duty

 5     cannot be cited as evidence of the Appellant's prior knowledge of and

 6     assent to those violations."

 7             And we rely fully on that dictum.

 8             Now, the Prosecution rely very heavily on a context approach, a

 9     totality approach, and variations on that theme, sometimes described as

10     reviewing the evidence as a whole, and so I intend to tackle that head

11     on.

12             First of all, it is not a totality approach at all.  It's a

13     subset of the totality.  In fact, the Prosecution, when it refers to the

14     totality, it is referring to the incriminating subset of the totality of

15     evidence minus all exculpatory evidence minus all explanations which are

16     favourable to the Appellant.  That's not a totality approach.  It doesn't

17     look at all the relevant evidence and interpretations, exculpatory and

18     incriminating, and I will develop that a little.

19             And secondly, the main point of Your Honours' question number 4,

20     as the table, I hope, which perhaps was initially perplexing, shows is

21     that if that is wrong, the unlawful artillery attack finding, then there

22     is no use relying on a totality approach because there is no actus reus.

23     So looking at Brioni, looking at a totality, will not get the Prosecution

24     anywhere.

25             Now, I'd like to touch on General Markac's "participation at

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