Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11343

1 Friday, 12 January 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.07 a.m.

5 JUDGE MOLOTO: Good morning. The Bench apologises for being late;

6 it's due to circumstances beyond our control.

7 Mr. Milovancevic, if you will please round up your argument.

8 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honours. Good

9 morning to everyone.

10 In order to understand the essence of the indictment, the nature

11 and character of the alleged crimes, the conflict, and the actual

12 situation on the ground, it might be necessary to present an explanation

13 or a view of the defence related to the constituent nature of peoples,

14 what this term means. The Defence contends that the statistical data from

15 1991 indicated that there were 561.000 Croats in the federal unit of

16 Croatia, which itself --

17 THE INTERPRETER: Interpreter apologises.

18 MR. MILOVANCEVIC: [Interpretation] Serbs in the federal unit of

19 Croatia, which itself had about four and a half million people.

20 Witnesses confirmed, and I think this is something my colleagues

21 from the Prosecution will not contest, that until 1991 the Republic of

22 Croatia was defined under its constitution as a state of the Serb and the

23 Croat peoples. It should also not be contestable that the new Croatian

24 government headed by the HDZ after the multi-party elections in 1990,

25 already in mid-1990 decided -- indicated that the constitution would be

Page 11344

1 amended, and they did in fact amend it in such a way that the status of

2 the Serb population in Croatia was changed. Now they were no longer a

3 people, but an ethnic minority.

4 It is necessary to explain two issues here. How is it possible

5 for 561.000 people in a federal unit that has four and a half million

6 people, that they have the status of a people? Is it possible to explain

7 this, to give an answer? Because that would indicate that the Serb and

8 the Croat population were not treated in an equal manner. 12 percent of

9 the population is given the same status as the 88 percent of the people.

10 The question is whether this constitutional solution was there until 1991

11 -- 1990 in order for the Croat people to be in an unequal position.

12 If you don't have all the information, you could conclude that,

13 but you have to bear in mind, Your Honours, something that my colleagues

14 from the Prosecution are not contesting, and that is the fact that in the

15 Second World War, between 1941 and 1945, genocide was committed against

16 the Serb people in Croatia. We saw documents about 750.000 people that

17 had been slaughtered. This genocide was the reason, the chief reason, why

18 in all the constitutions in force in Croatia after the Second World War of

19 the provision, that Serbs were also a people, a nation. Why? After the

20 Second World War, two solutions presented themselves because it is not --

21 one cannot accept the genocide, the results of genocide.

22 Either parts of Croatia with a Serb population could be cut off

23 from Croatia, thereby reducing the Croatian territory by one-third. It

24 was a possible solution. It would have been a just solution. But there

25 was another solution, a just solution, that was accepted both by Serbs and

Page 11345

1 Croats in Croatia, for Serbs to remain within the federal unit that was

2 Croatia, but to be given guarantees by being given the status of a people

3 that they would never again find themselves in the position of an ethnic

4 minority in an independent Croatia where such a genocide could be repeated

5 against them.

6 Your Honours, this solution was put in place and Serbs were a

7 people in Croatia from 1945 until 1990. The genocide against the Serbs in

8 the so-called independent state of Croatia between 1941 and 1945 was

9 committed in a fascist creation that was recognised only by fascist

10 states, Italy, Austria, and the Vatican. In 1941, it was recognised as an

11 independent state of Croatia. I may have made a mistake. My colleague

12 has just corrected me; Germany, Italy, and the Vatican. These countries

13 created and then recognised the independent state of Croatia that then

14 went on to commit genocide against Serbs.

15 The first thing that happened in 1990 when the HDZ came into power

16 was an attempt to remove this protective element for the Serbs; in other

17 words, their status as a people. The only guarantee that these people had

18 for their own protection was this status of a people. Why? Simply

19 because a people has a right to decide its own fate, its status. An

20 ethnic minority in no country in the world cannot, is not entitled to,

21 does not have the right under international or domestic law to decide its

22 own fate. An ethnic minority cannot say, Well, we don't want to be in

23 Croatia anymore.

24 But Serbs, until 1990, they did have the status of a people. Out

25 of fear of any future genocide, they had the right enshrined in the

Page 11346

1 constitution to say, No, we don't want to be in an independent Croatia.

2 This is the very essence to the right of self-determination, and that is

3 the essence of the term -- of the principle of a constituent people.

4 The question is: Why did the new government, the HDZ, already in

5 mid-1990 remove the status of a people from the Serb people? Why?

6 Because they knew what the reaction would be. They knew that Serbs would

7 never want to leave Yugoslavia, where according to its constitution they

8 were duty-bound to be loyal to its state, as were, indeed, Croats and all

9 the other peoples. And they would not want to leave that state for a very

10 simple reason, fear that they would again be victims of genocide.

11 The Defence is now trying to explain to you that in December 1990

12 Croatia did, in fact, amend its constitution, removing Serbs from the

13 constitution, turning them into an ethnic minority, and lo and behold, the

14 very states that created the independent states of Croatia in 1941,

15 Germany, Austria, Italy, and the Vatican again recognise this state that

16 seceded as a result of an armed rebellion from Yugoslavia. So this is one

17 important element.

18 Let me conclude this chapter --

19 JUDGE MOLOTO: Excuse me, Mr. Milovancevic. Earlier you referred

20 to Italy, Austria, and the Vatican and then you corrected yourself and

21 said not Italy, but Germany. Now you are saying Germany, Austria again,

22 and I think also the Vatican. Is it Austria, is it Italy? Or is it

23 Austria, Germany? Or is it Austria, Germany, Italy, Vatican?

24 JUDGE HOEPFEL: And if you speak of Germany, please make clear

25 what Germany. There were two Germanys after the war.

Page 11347

1 MR. MILOVANCEVIC: [Interpretation] Your Honours, in 1941 when the

2 fascist powers and the Vatican recognised the independent state of Croatia

3 that went on to commit the genocide against Serbs, there was only Germany

4 in existence because Austria no longer existed after the Anschluss, the

5 annexation of Austria to Germany by Hitler. It was just one Germany.

6 JUDGE MOLOTO: Don't give us a lesson in history. Just tell us,

7 are you referring to is it Germany or Austria, and carry on because we

8 don't have time now. Are you including Germany or are you including

9 Austria with Italy and the Vatican in your argument?

10 MR. MILOVANCEVIC: [Interpretation] Your Honour, the fact that your

11 questions perhaps show that you are unfamiliar with the history, you asked

12 us for an explanation. In 1941, Austria did not exist.

13 JUDGE MOLOTO: No, Mr. Milovancevic, I'm asking you a simple

14 question because you have been interchanging Austria with Germany. Just

15 correct yourself if you are wrong, and say I'm not referring to Austria.

16 I don't know whether it was existing or not existing and carry on. We

17 don't have the time for this. I want you to finish. Is it Austria or

18 Germany? Don't say to me whether I know or don't know whether Austria

19 existed at that time or not. That's not the question I'm asking you.

20 MR. MILOVANCEVIC: [Interpretation] Your Honour, in 1991 those were

21 Austria, Germany, Italy, and the Vatican. Those were the sovereign states

22 as they existed at that time. Thank you.

23 JUDGE MOLOTO: Thank you, Mr. Milovancevic. Please, carry on.

24 MR. MILOVANCEVIC: [Interpretation] And in relation to this topic

25 of the constituent nature of a people, it --

Page 11348

1 JUDGE NOSWORTHY: Mr. Milovancevic, that is in 1991? The

2 reference to Austria, Germany, Italy, and the Vatican, is it 1991 you're

3 referring to? That's what it has on the transcript.

4 MR. MILOVANCEVIC: [Interpretation] What I meant to say that in

5 1991, Austria, Germany, Italy, and the Vatican were independent subjects

6 under international law; and then in 1992, early 1992, they recognised

7 Croatia. That's what I wanted to say.

8 JUDGE MOLOTO: Okay. You see at page 4, line -- which is what we

9 made me interrupt you. At line -- let's start from the line 10, you said,

10 "The Defence is now trying to explain to you that in December 1990

11 Croatia did, in fact, amend its constitution, removing Serbs from the

12 constitution, turning them into an ethnic minority, and lo and behold the

13 very states that created the independent state of Croatia in 1941,

14 Germany, Austria," and then the transcript here says "stall." But what I

15 heard you say was the Vatican, "and then" - I suppose that was intended to

16 be the Vatican - "again recognised this state that seceded as a result of

17 an armed rebellion from Yugoslavia."

18 I just want to find out is it the Defence contention that Germany,

19 Austria, Italy, and the Vatican did create the state of Croatia? Is that

20 the contention? Yes or no and then we move on.

21 MR. MILOVANCEVIC: [Interpretation] Yes.

22 JUDGE MOLOTO: Thank you very much. Move on.

23 MR. MILOVANCEVIC: [Interpretation] And what becomes obvious from

24 the evidence that we led in our case is that immediately after the armed

25 secession and armed rebellion by Croatia was recognised, the Serb

Page 11349

1 population in the territory of that state met the same fate as it did in

2 1941. The reasons for their being given the status of a people to protect

3 themselves against genocide were quite justified, even in the presence of

4 UN troops.

5 As early as in June 1992 at Maslenica and in January 1993 at the

6 Miljevci plateau, and then in September 1993 in the Medak pocket, and in

7 May 1995 in Operation Flash, and in August 1995 in Operation Storm, the

8 independent state of Croatia, in the period between 1991 until 1995,

9 according to Mr. Gruic, Prosecution expert witness, expelled between 250

10 and 300.000 people. In this period in 1995, the entire population left

11 this area. This is what I wanted to point to you -- point out to you.

12 This is very important in order for you to understand Martic, Serbs, and

13 the actions by the government of SAO Krajina.

14 Another thing that is very important in this case is that the

15 case -- the situation of the accused, Martic, of Krajina itself, and the

16 events as they were depicted in the indictment, this is something that is

17 very closely linked and under a great influence of the actions of the

18 international community. In the indictment itself, in the final chapters

19 of the indictment, the Prosecutor states that in -- between July and

20 September, the European community mediated in the Yugoslav crisis; and at

21 the end of 1992, it recognised the independence of Slovenia and Croatia.

22 The indictment discusses the Vance Plan.

23 In the course of this trial, hundreds and hundreds of documents

24 originating from the United Nations, UNPROFOR, UNHCR, the International

25 Red Cross, EC were exhibited. Why am I saying this, Your Honour? Because

Page 11350

1 the Defence wants to put to you the very essence of its case. This was a

2 situation where a great European state, Yugoslavia, was being broken up.

3 In 1991, it was bigger than the United Kingdom. It had 23 million people

4 and 256.000 square kilometres, and the fact that this country was broken

5 up was linked with all kinds of external interests.

6 In saying this, in mentioning Germany --

7 JUDGE NOSWORTHY: Mr. Milovancevic, I'm sorry to stop you and to

8 prolong the time that you will take in your submissions, but I'd like to

9 get this from you. In the given circumstances where the Serbs were

10 constitutionally now a minority, as opposed to a constituent people, in

11 the given circumstances what is it that the Serbs did not get the

12 opportunity to do? What would they have done in those circumstances had

13 they been a constituent people that would have saved Mr. Martic from

14 coming before this Court and being charged under this indictment?

15 As yet, although following your arguments all the way through, I

16 have not been able to understand that from you; and that's what I'd like

17 you to pin-point for me and get down to because we haven't gotten to that

18 stage where you have taken me there as yet. I, as a member of the Trial

19 Chamber, would very much like to be there. I followed your arguments from

20 the inception of the trial all the way through, but please, if you could

21 do that for me I would be grateful.

22 In the position where you are only a minority, what is that you

23 were prevented from doing in the given circumstances that would have been

24 affected the price of cheese at the end of the day, to use a colloquial

25 term? Thank you.

Page 11351

1 MR. MILOVANCEVIC: [Interpretation] Your Honour, it is only a

2 nation, a people, only an ethnic community which has the status of a

3 nation under the constitution. Only a nation has the right to

4 self-determination. In this particular case, this right entailed the

5 right of Serbs to state clearly, We do not want to leave Yugoslavia

6 together with Croatian Croats. We want to remain in our country,

7 Yugoslavia. And when they were transformed into ethnic minority, they

8 were immediately, automatically, denied that right. There would have been

9 no indictment in this case had the Prosecutor abided by the then-Yugoslav

10 constitution and appreciated these circumstances.

11 JUDGE NOSWORTHY: Point for me the reason why you say that. What

12 are the reasons that I can look to to reach this finding at the end of the

13 day, if necessary? This is what I'd like you to do for me. Why is that?

14 MR. MILOVANCEVIC: [Interpretation] Your Honour, while the old

15 constitution was in place, the old constitution of Croatia, while it was

16 still valid until the end of 1990, the Serbs in Croatia took certain

17 political steps in order to voice and to implement their constitutional

18 authorities. They said, We are an autonomy within Croatia, and we will

19 apply Croatian laws. And SAO Krajina tied that when it was created in

20 1990, and it was in accordance with the then-Croatian constitution and the

21 Yugoslav constitution and in accordance with their rights. Everything

22 that the Serbs in Croatia did back in 1990 by creating SAO Krajina and RSK

23 was in accordance with the Yugoslav constitution because they had the

24 status of a constituent nation.

25 Just as the Croatian nation within Croatia had a right to

Page 11352

1 self-determination, so did the Serbs in Croatia. They had a right to

2 self-determination because they were not Johnny-come-latelies in Croatia.

3 That was their ethnic territory; that was their country. One-third of

4 Croatian territory according to the UN report 23280, which is Exhibit 107,

5 so one-third of Croatian territory is an ethnic area where the Serbs

6 constituted either a majority or a significant minority of the population.

7 So by having the status of a constituent nation, the Serbs were

8 entitled to voice their will for self-determination. They did it in

9 accordance with the constitution of Yugoslavia, constitution of Croatia,

10 in accordance with international law; whereas, Croatia carried out an

11 armed secession, armed rebellion, and thus denied the right of the Serbs

12 in the end breaking up Croatia by use of weapons and doing the same to

13 Yugoslavia, which is a crime against peace.

14 Violence, secession of Croatia, is the mother of all -- is the

15 mother of all causes to this. It was not a sick idea of Serb leadership

16 to persecute other non-Serbs, torture them, expel them, and do everything

17 else that is written in the indictment. Let me just tell you that Exhibit

18 236, a letter of the prime minister of SAO Krajina, Milan Babic, written

19 on the 5th of September, 1991, written to the conference on the former

20 Yugoslavia, which was in The Hague. It was addressed to Lord Carrington

21 and the United Nations. This letter was put to Milan Babic and he

22 confirmed having written it.

23 Precisely this letter speaks to the right of self-determination.

24 This is a document in which Mr. Babic back in 1991 said that Yugoslavia

25 had been attacked, attacked by means of armed secession and armed

Page 11353

1 rebellion of Croatia, that the regular, federal army was simply acting in

2 accordance with the law, and that it was being attacked and its members

3 killed, that all the Serbs want is their right to self-determination, and

4 that they do not deny the same right to the Croats.

5 We have to ask ourselves why is it that Mr. Babic, as an accused,

6 despite all evidence in existence, now all of a sudden changes his story

7 when he became a witness for the Prosecution, somebody who had achieved a

8 plea through bargaining. This is something that you might want to look

9 into. And I would like to continue.

10 Now, let us go back to another factor that is important in order

11 to understand the Martic case. There are many facts in the indictment

12 speaking about the participation --

13 JUDGE NOSWORTHY: You have finished responding to me then, and I

14 want to thank you. Please continue. Thank you.

15 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

16 Another factor that is important in order to understand everything

17 that can be found in exhibits, especially in UN documents and in the

18 evidence given by some UN representatives, such as, for example,

19 McElligott is the essential involvement of the international community in

20 the crisis in Yugoslavia and their involvement in the events which

21 unfolded in the territory in Krajina. We are not saying this, Your

22 Honour, in order to attempt to shift the blame on to somebody else, to

23 accuse somebody else, no. We are saying this because these are the facts

24 that are of crucial importance for the Trial Chamber in order for them to

25 be able to render a just judgement. There are multiple, voluminous

Page 11354

1 written exhibits speaking to this.

2 Let me draw your attention to document introduced into evidence as

3 Exhibit 104. Maybe previously I erroneously referred to it as Exhibit

4 107. No, it's Exhibit 104, and this is the report to the United Nations,

5 number 23280, dated 11th of December, 1991. This report was written after

6 the Geneva agreement was reached on the 23rd of November, 1991, signed by

7 the special envoy of the UN Secretary-General Mr. Vance, the

8 then-President of Serbia Milosevic, President of Croatia Tudjman, and

9 Defence Minister Kadijevic.

10 This exhibit, 104, speaks of basic principles of the activities of

11 the UN in the territory of Yugoslavia and basic principles of Vance, the

12 special envoy of the UN Secretary-General, and Mark Goulding, the

13 Under-Secretary of the UN. Their approach in this document - and we

14 referred to this document many times - is that they warned that at that

15 time on the 11th of December, 1991, a premature recognition of certain

16 Yugoslav republics seeking that recognition, so I'm now referring to

17 Yugoslav republics, the report of the UN on the 11th of December, 1991,

18 referred to these republics as Yugoslav republics; whereas, the Prosecutor

19 claim that Croatia had been independent as of October 1991. This is quite

20 puzzling.

21 So this document says that a premature recognition of Yugoslav

22 republics would represent a catastrophe for the region, for peace in the

23 world, peace in the Balkans, and peace in Yugoslavia; and that this

24 recognition could be given only within a comprehensive solution to the

25 Yugoslav crisis, which is something that the UN strived for. What is

Page 11355

1 interesting is that the UN Secretary-General precisely in this document

2 warned the European community, at the time led by a Dutch Minister of

3 Foreign Affairs Van Den Broek, that a premature recognition of

4 secessionist republics would represent a catastrophe for the peace process

5 and for the efforts of the United Nations.

6 Your Honours, this is a written document dated 11th of December,

7 1991. Despite this warning, Germany, Italy, Austria, and the Vatican,

8 Belgium, the Netherlands, the most important European countries recognised

9 secessionist republics. They recognised, for example, Croatia, which at

10 that point in time did not have control over one-third of its territory.

11 By doing so, these countries legitimatised their interests, their strike

12 interests in the territory of Yugoslavia. They undermined the peace

13 operation of the United Nations in Yugoslavia by doing so, because the UN

14 troops from that moment on did not come to the territory of Yugoslavia,

15 rather they came to Croatia.

16 By doing so, these countries prejudge the outcome of the political

17 crisis; and by means of that act, these countries violated the UN charter

18 which protected the territorial integrity of Yugoslavia. And Yugoslavia

19 at that time was the only UN member. They also violated Protocol II of

20 the Geneva Conventions; namely, Article 3. Yesterday, we said that nobody

21 has a right to violate territorial integrity of a country under any

22 pretext; and by doing so, these countries became accomplices in this armed

23 secession and armed rebellion of Croatia.

24 JUDGE MOLOTO: Mr. Milovancevic, I just want to remind you that

25 for the whole of this morning I haven't heard you address any of the

Page 11356

1 counts that are in the indictment; and at a particular time when I stop

2 you, I hope that you are not going to complain that you have not been

3 given sufficient time because you have now had far in excess of what the

4 Prosecution had to present their argument.

5 You may proceed.

6 MR. MILOVANCEVIC: [Interpretation] Your Honour, it is the Defence

7 that decides what counts of indictment it is going to refer to. The

8 Defence has a right to a defence. The trial in this case spent identical

9 amount of time on the Prosecution case and Defence case. You are giving

10 me this warning in the most delicate portion of the defence, as we're

11 about to present to you our key arguments. Yesterday, you said that you

12 did not understand the arguments of the Defence; you interrupted me. I'm

13 now asking you to allow me to present the argument of the Defence case.

14 Please allow me to do that.

15 JUDGE MOLOTO: [Microphone not activated]

16 JUDGE NOSWORTHY: Mr. Milovancevic, I believe that you should have

17 taken the words of Judge Moloto in the spirit in which it was intended,

18 which was by way of guidance and certainly not to undermine or in any way

19 prejudice the Defence case or to prevent you from putting what you

20 consider that to be which is germane, but he was merely trying to point

21 you and guide you in the right direction.

22 And I, myself, am a wee bit disappointed in you because I think

23 you could have handled it a little bit more graciously, even given your

24 concerns that your defence should be properly placed before the Court. I

25 think you should take it in the spirit of guidance from the Trial Chamber,

Page 11357

1 Mr. Milovancevic. I'm going to prevail upon the Presiding Judge to permit

2 you the opportunity to do that which you said you are going to do.

3 My brothers, if they would, I would be very grateful because I'm

4 pleading on Mr. Milovancevic's behalf. I hope Mr. Whiting will not object

5 to that.

6 MR. MILOVANCEVIC: [Interpretation] Your Honour, thank you for your

7 words. I fully agree with what you said. My reaction was prompted by the

8 possibility. This is how I took the words of Judge Moloto. The

9 possibility that the Defence could be interrupted at one point in time

10 because we were putting arguments that are not directly linked to the

11 indictment. This is what I was trying to prevent, and I certainly meant

12 no disrespect in doing so. Thank you, and by your leave I would continue.

13 JUDGE NOSWORTHY: Yes, but I wish to endorse the words of Judge

14 Moloto, that it should be related to and linked to the indictment. It

15 ought to be, but it is your decision and your discretion to do so.

16 JUDGE HOEPFEL: I agree.

17 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honours.

18 Why is it that the Defence has spent for the first time so much

19 time on this topic? We did it because the Defence believes that all

20 factual and legal allegations in the indictment, the construction

21 concerning the joint criminal enterprise and the indictment, were not

22 directed at achieving the interests of justice. They were not based on

23 facts, on actual facts. They twisted facts and evidence. They put them

24 upside down.

25 And in the eyes of the Defence, such an attitude of the

Page 11358

1 Prosecution has a goal of achieving some political aims which evidently

2 have something to do with the armed destruction, break-up, of Yugoslavia,

3 the armed secession, and everything that followed from that. We tried to

4 address this angle through our expert Dr. Smilja Avramov. The Prosecution

5 objected to us doing that. They also objected to us mentioning the

6 involvement of the international community in this. I think the Bench was

7 wrong when they sided with the Prosecution, and it was prejudicial to the

8 Defence.

9 However, in order to judge the real intentions of everyone who

10 participated in the Yugoslav crisis, it is important --

11 JUDGE MOLOTO: What do you mean the Bench was wrong when it sided

12 with the Prosecution, and it was prejudicial to the Defence? Sided on

13 what? Where did the Bench side with the Prosecution?

14 MR. MILOVANCEVIC: [Interpretation] Your Honours, I did not say

15 that you sided with the Prosecution, but that you accepted the

16 Prosecution's suggestion that it should be redacted.

17 JUDGE MOLOTO: Come on, Mr. Milovancevic. Stop denying things you

18 have said. It says here: "I think the Bench was wrong when they sided

19 with the Prosecution." Look at page 15, line 9. Yesterday, you kept on

20 denying things you have said, and you are now denying it again.

21 You said: "I think the Bench was wrong when it sided with the

22 Prosecution, and it was prejudicial to the Defence." Is that not what you

23 said? Have you been misinterpreted? Let's correct the interpreters if

24 they interpreted you incorrectly, but I'm reading what I --

25 MR. MILOVANCEVIC: [Interpretation] Your Honour, yes, the

Page 11359

1 interpreters can be corrected. I said that the Chamber accepted the

2 standpoint of the Prosecution, that the topic of the international

3 community did not belong in this case, and Your Honours accepted this,

4 although the standpoint of the Defence was quite the opposite to that. I

5 couldn't say, of course, that the Chamber sided with the Prosecution. It

6 was improperly interpreted or perhaps I spoke imprecisely, but my meaning

7 was what I have just explained.

8 JUDGE MOLOTO: Mr. Milovancevic, please tell the Bench, did you

9 speak imprecisely or were you misinterpreted? It can't be both. You've

10 got to tell us which it is.

11 MR. MILOVANCEVIC: [Interpretation] I said that the Prosecution

12 opposed the work of the expert, an international law professor, on

13 throwing light on facts --

14 JUDGE MOLOTO: Please, Mr. Milovancevic. Look, just concentrate

15 on one thing. Don't take us back. I'm asking you about just this

16 question, where I am saying you said: "The Bench sided" -- I think,"the

17 Bench was wrong when they sided with the Prosecution, and it was

18 prejudicial to the Defence."

19 Just tell us exactly what you said at that time.

20 MR. MILOVANCEVIC: [Interpretation] What was said, Your Honours,

21 was that the Chamber was wrong because it adopted the standpoint of the

22 Prosecution, which can be correct or incorrect.

23 JUDGE MOLOTO: [Previous translation continues]...

24 MR. MILOVANCEVIC: [Interpretation] We consider the standpoint of

25 the Prosecution to be incorrect, and that is our contention. And we

Page 11360

1 believe that the Chamber erred in accepting the erroneous standpoint of

2 the Prosecution.

3 JUDGE MOLOTO: When did the Chamber adopt the standpoint of the

4 Prosecution?

5 MR. MILOVANCEVIC: [Interpretation] At the point in time, Your

6 Honour, when the redacted text of the expert report was delivered to us,

7 where the expert of the Defence, Dr. Smilja Avramov, had in her report

8 redacted everything that had to do with the international community, and

9 even the conclusions of the expert were expunged. That was your decision,

10 not ours, and we even considered whether to use that report in the

11 proceedings or not.

12 JUDGE MOLOTO: Now, that was the standpoint of the Bench. That

13 had nothing to do with the Prosecution. That was the view of the Bench

14 about that report. It was not adopted, the standpoint of the Prosecution.

15 And if it was prejudicial and the Bench was wrong, it was in your right to

16 appeal. And did you appeal, sir?

17 MR. MILOVANCEVIC: [Interpretation] Your Honours, everything was

18 done at the very last moment, at the end of the proceedings.

19 JUDGE MOLOTO: Mr. Milovancevic, please. Did you appeal or didn't

20 you appeal? If you don't agree with the view of the Bench, you appeal.

21 If you don't appeal, you accept it. It's not for you at this late stage

22 when you did not appeal and the time for appealing is past to come and

23 say, We adopted that. We don't adopt anybody's position. We adopt the

24 Bench's position. And if the Defence position happens to coincide with

25 the Bench, that doesn't mean the Bench has adopted the Defence 's

Page 11361

1 position. It just so happens to be coincidental, and so also if it's

2 coincides with the position of the Prosecution.

3 MR. MILOVANCEVIC: [Interpretation] Thank you.

4 Another point that we attempted to prove concerns the nature of

5 the armed conflict, the existence of an armed rebellion. The actions of

6 the Croatian armed forces and Exhibit 402 introduced by the Prosecution

7 through witness Agotic, 200.000 heavily armed soldiers in 1991. According

8 to the Prosecutor, there is an armed conflict on the territory throughout

9 the time. The Prosecutor claims that the firing on Zagreb was not

10 justified in military terms. And our expert, Colonel Milisav Sekulic, by

11 a decision of the Chamber, had this part of his finding expunged. All his

12 replies on which Defence insisted, trying to deal with these topics, or

13 eliminated from his report by a decision of the Chamber. This was highly

14 prejudicial to us. Fortunately, there is other evidence which can to a

15 lesser extent cover these issues.

16 JUDGE NOSWORTHY: Mr. Milovancevic, I am to be forgiven, but I

17 must stop you because there is a rule of etiquette and there is a rule of

18 practice concerning how one deals with rulings of a Trial Chamber, a

19 Tribunal, or a Bench. The ruling having been given in the course of the

20 trial, then counsel is bound to accept it, unless he exercises a right of

21 appeal, a right of review, or howsoever touching and concerning that

22 ruling or judgement, and there is a finding against the Trial Chamber.

23 As Judge Hoepfel quite properly said -- sorry, Judge Moloto, our

24 Presiding Judge, quite properly said: You, not having exercised that

25 right that was open to you in the normal course of practice and procedure,

Page 11362

1 then retreated as if it is abiding and all parties to the trial are bound

2 by it. And you're not allowed to refer to it and impugn it in the course

3 of your submissions before the Court. I say this for guidance, not to

4 embarrass you, but it is part and parcel of the adversarial system that

5 binds this Tribunal, and you may be unaware of that fact. You may believe

6 because in your system you can impugn it still -- sorry --

7 JUDGE MOLOTO: [Microphone not activated].

8 JUDGE NOSWORTHY: No. No, I'm saying may be that in your system

9 you can, but it is considered highly irregular here and it could amount to

10 a contempt. If persisted in, and I say this, if you have other

11 submissions that would have involved impugning of a properly binding

12 ruling of this Trial Chamber, then you should avoid the use of those

13 submissions in that way because it's not etiquette and it's not procedural

14 correct to do so.

15 MR. WHITING: Your Honour, I'm sorry. I'm sorry to do this, but I

16 just so the record is clear, because there's one -- one little detail

17 which we may have all overlooked but has been drawn to my attention. At

18 the end of the day I don't think it changes anything, but it should be put

19 on the record. That is that Defence did seek certification for appeal of

20 those two decisions with respect to the Chamber's rulings on those two

21 expert witnesses and certification was denied by the Trial Chamber;

22 however, having said that, I don't think that changes the conclusion. In

23 our view, it's still a binding decision by the Trial Chamber.

24 JUDGE NOSWORTHY: Yes. I stand corrected. The right to seek

25 certification was exercised. It having been denied in the normal course

Page 11363

1 of the Trial Chamber's functions and duties, then, Mr. Milovancevic, you

2 are very much bound by it. And in future, this is the manner in which you

3 should treat findings of any Trial Chamber, whether this one or otherwise,

4 decisions and rulings, that is how they affect any counsel in the matter

5 or any party to the matter. Thank you.

6 JUDGE MOLOTO: Just to remind you, when we break at quarter past,

7 I hope you will have finished your argument. You may proceed.

8 You are certainly not going into the second session.

9 MR. MILOVANCEVIC: [Interpretation] I accept what Her Honour Judge

10 Nosworthy said and I withdraw what I have said. But I wish to provide an

11 explanation so as not to be misunderstood. I was trying to point to some

12 facts. I was not trying to belittle the Chamber. In any case, I accept

13 the words of Judge Nosworthy and I withdraw what I have said.

14 As for my being able to finish by a quarter past 10.00, I'm afraid

15 I will not be able to do so. We can finish in the course of the next

16 session after the break. May I proceed?

17 JUDGE MOLOTO: You may proceed.

18 MR. MILOVANCEVIC: [Interpretation] Defence witness MM-117

19 confirmed that the authorities of the Republika Srpska Krajina, that the

20 Ministry of the Interior, the Cabinet, and all organs did their very best

21 to protect public law and order. They did everything possible to protect

22 all people regardless of ethnicity. They did everything to cooperate with

23 UNPROFOR, and this cooperation was good. This witness, like many others,

24 like all Defence witnesses, confirmed that every effort was made to

25 suppress crime, to detect the perpetrators of each and every crime. This

Page 11364

1 witness confirmed that cooperation with UNPROFOR on the ground was good,

2 and then suddenly UN reports arrived saying something different, something

3 contrary to this.

4 Through Exhibit 965, we see that there was a meeting between Mr.

5 Martic and Mr. Cedric Thornberry representing the UN mission in Zagreb.

6 In this document, which is confirmed by all other evidence, Mr. Martic,

7 according to these minutes, addressed Mr. Thornberry and said, The Western

8 press has committed a heinous crime against the Serbs. We are only

9 defending ourselves. Everything has been turned topsy turvy. Why don't

10 you do something, Mr. Thornberry, to change this.

11 In this Exhibit 965, Mr. Thornberry responds to Mr. Martic

12 directly and says, I understand you completely, Mr. Martic. I cannot

13 understand how the Western media reported as they did. The fact is that

14 the Security Council at this point in time has a little more balanced

15 picture, mark this, and the international community is gaining a clearer

16 picture. But I cannot pretend, says Mr. Thornberry, that they have an

17 objective picture because they don't. Because of political propaganda,

18 the international community is treating all Serbs in the same way.

19 These words of Mr. Thornberry, the deputy head of the mission to

20 Yugoslavia, did not lead to any results, and this was confirmed by another

21 witness, Mr. Barriot, who said that he was in a situation to give up his

22 career, although he had very bright prospects at the time. He said, I was

23 in a situation to give up my military career because I saw on the ground

24 that the Serbs were being demonised, and I could not conceal that truth.

25 And Mr. Cedric Thornberry confirms the same.

Page 11365

1 This document also confirms, or rather, contains Cedric

2 Thornberry's statement, The head of the civil police, UNCIVPOL, is

3 directly subordinate to me. He's personally subordinate to me, and he

4 says that you have excellent cooperation; and yet some Prosecution

5 witnesses such as McElligott turned up here denying this completely and

6 telling a different story. Documents have turned up telling a completely

7 different story to what was testified to by a man on the ground.

8 In the same document, 965, dated the 14th of June, 1993, Mr.

9 Martic tells Mr. Thornberry, We are doing everything possible to protect

10 the population. We are not drawing any distinctions between Serbs and

11 Croats. We are doing everything in our power to protect them from those

12 who are imperilling them. We have a problem. When the Croatian

13 population wants to leave the territory because of the difficult situation

14 and when they give us a signed statement to the effect that they are

15 leaving voluntarily, they then run to the Croatian authorities and tell a

16 different story.

17 So Mr. Martic says, Please, Mr. Thornberry, we don't want such

18 departures to happen anymore without the participation of UNPROFOR. And

19 in response to this, in document 965, Cedric Thornberry says, I

20 understand, Mr. Martic, that you are protecting the population in

21 exceptionally difficult circumstances.

22 You see, Your Honours, this is the truth about what was happening

23 on the ground. Many Defence witnesses confirmed this, many. But Mr.

24 Cedric Thornberry speaks of the Western media who have committed a crime

25 against the Serbs in 1993; and yet now in 2006 and 2007, the Prosecutor is

Page 11366

1 using these media reports as evidence against Mr. Martic. We have seen UN

2 documents compromising the UN completely, even UN resolutions. They

3 compromise the UN for the reasons mentioned by Cedric Thornberry because

4 the Security Council does not have a clear picture, because the

5 international community was not well-informed.

6 What does Resolution 762 of the United Nations mean? It was

7 issued in June 1992, after the first Croatian aggression on a UN protected

8 area at the Miljevac plateau where 40 Serbs were butchered, literally

9 butchered and thrown in a pit. What does that resolution mean condemning

10 both sides and containing words to the effect that the pink zones fall

11 within the jurisdiction of Croatia. They purport to condemn the

12 aggression, take no steps, and at the same time in the same breath reward

13 Croatia by giving it the pink zones.

14 Witness Kirudja said that this was not part of the UN plan, that

15 this went beyond the provisions of the Vance Plan of the United Nations.

16 That is how the international community behaved, and we are trying to draw

17 attention to this; whereas, in this indictment, the Prosecutor seems to be

18 completing the job and implementing those interests. Why do I say this,

19 Your Honours? The peace conference on Yugoslavia was never held. This

20 indictment is the fulfilment of the wishes of Croatia.

21 JUDGE MOLOTO: May I interrupt you. I think again you are

22 treading on professional misconduct here in the sense that the Prosecutor

23 is an official, an officer of this Tribunal. He has been given

24 instructions by the mandate of this Tribunal to do what he has to do.

25 He's got nothing to do with perpetuating or carrying forward the actions

Page 11367

1 of the United Nations or the people with UNPROFOR who were there. He's

2 merely doing his job, like you are doing your job to defend your client.

3 He's doing his job to prosecute a case and please stop vilifying the

4 Prosecutor. Will you please proceed.

5 MR. MILOVANCEVIC: [Interpretation] You misunderstand me, Your

6 Honour.

7 JUDGE MOLOTO: Mr. Milovancevic, please, just stop vilifying the

8 Prosecutor. Carry on with your argument.

9 MR. MILOVANCEVIC: [Interpretation] I am saying this for the sake

10 of my colleague from the Prosecution. I am not being personal. I'm

11 talking about the institution.

12 JUDGE MOLOTO: Forget about the institution. That very

13 institution you have vilifying the institution and I am not talking about

14 any person myself. I say the Prosecutor as you refer to him or to her in

15 your argument is not doing what you are alleging. He's just been given a

16 job to prosecute a case based on certain facts that have been given to

17 him. Now, just carry on.

18 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

19 Let us now move on to the indictment itself. Let us see how the

20 Prosecutor does it job, on the basis of what law and what facts.

21 Paragraph 4 of the indictment talks about the purpose of the joint

22 criminal enterprise, indicating that the aim is to -- as regards one-third

23 of the Croatian population and great parts of Bosnia and Herzegovina to

24 cleanse them of non-Serb population and to annex them to a Greater Serbia.

25 This wording, this definition of a territory where crimes allegedly

Page 11368

1 happened constitutes a violation of the UN charter, because the indictment

2 covers the period between 1990 and 1995. And in 1991 at least and until

3 May 1992, there is not such an entity as the Republic of Croatia and there

4 is not such an entity as the Republic of Bosnia and Herzegovina. They are

5 not entities under international law. There is only Yugoslavia.

6 And what is happening here? In paragraph 4, we're not talking

7 about sovereign states. The goal, the objective, of such phrasing is to

8 hide the fact in the contention of the Defence that this is an armed

9 rebellion to avoid the mention of Yugoslavia at all as an entity under

10 international law and to paint these events in a completely different

11 light. Why is the Prosecution doing this and how is it doing so? Let us

12 turn to paragraph 6 of the indictment.

13 I am not doing this for any reason, apart from trying to present

14 the Defence case, which boils down to this: Martic is an innocent who has

15 been accused. He is a refugee himself, a president of a refugee people.

16 He's been here for four years and seven months. Despite the fact that

17 there are facts that are contrary to everything that is stated in the

18 indictment, in what sense? In paragraph 4, you have the Republic of

19 Croatia and the Republic of Bosnia and Herzegovina defined as sovereign

20 states. At that time, they do not exist. There is only Yugoslavia. And

21 then in paragraph 6 you have a list of participants in the joint criminal

22 enterprise.

23 Some persons are listed here, and then it says the JNA; and then

24 the Yugoslav army; and the Army of the Republika Srpska; the police

25 forces; the Territorial Defence, Martic's police, as they call it;

Page 11369

1 voluntary units from Serbia, Montenegro, and Bosnia; and other political

2 personages, figures, from the Socialist Federative Republic of Yugoslavia.

3 So you see, this last allegation in paragraph 6 gives you an idea of the

4 real sense of the events.

5 This is probably a slip on the part of the Prosecution because the

6 alleged joint criminal enterprise takes place in the territory of the

7 Socialist Federative Republic of Yugoslavia in 1990 and 1991 in the middle

8 of an armed rebellion. We're not talking about any sovereign states such

9 as Croatia or Slovenia, and all alleged participants in the JCE listed by

10 name in paragraph 6 are citizens, officials, soldiers, police officers,

11 and volunteers of the only existing sovereign entity under international

12 law, Yugoslavia, the only country that is a member of the United Nations

13 at that time. And they're doing nothing but exercise their duties,

14 rights, under the constitution, under the law within their sphere.

15 They're not doing anything in any states, Croatia, Slovenia, because they

16 don't exist at the time. They're doing their job in the territory of

17 Yugoslavia, under the jurisdiction of the Federal Presidency, in an effort

18 to suppress armed rebellion under Protocol II of the 1949 Geneva

19 Convention. This is what this is all about. This is the essence.

20 And you see, Your Honours, why did I say this thing that I said

21 about the Prosecution? Paragraph 4 and paragraph 6 of the indictment talk

22 about the construction of the joint criminal enterprise. Why has this

23 been introduced? This has been introduced by the Prosecution. And in our

24 view, the Tribunal erred when it accepted this form of responsibility

25 because this does not exist in the Statute. It can only be introduced by

Page 11370

1 the Security Council. And what was the goal for its introduction? There

2 are two goals. First, the enumeration of the alleged participants in the

3 joint criminal enterprise releases the Prosecution from any obligation to

4 prove --

5 JUDGE MOLOTO: Mr. Milovancevic, please, this is something that

6 you have told us already. You have told us this previously on yesterday

7 or the day before. Yes, please.

8 MR. MILOVANCEVIC: [Interpretation] Thank you.

9 What I did not say is that by introducing this institute of JCE,

10 the Prosecution is released from an obligation to prove many aspects;

11 time, place, who did what, who was in charge, what was the chain of

12 command, the subordination, what are the horizontal links among the

13 participants. The Prosecution does not have the obligation to prove

14 anything once the joint criminal enterprise is there for him or for them,

15 and the Defence then can do whatever it can do defend the accused. Why

16 was this done? This was done in order to change the picture of the events

17 in Yugoslavia as they unfolded, to rubber stamp an illegal act that was an

18 illegal act of the break-up of Yugoslavia and the creation of the state of

19 Croatia.

20 Let me give you just one example. The Prosecution did not

21 prosecute those responsible for Operation Flash, yet he's prosecuting

22 Martic.

23 Now, let us move on to paragraph 7 of the indictment. This is a

24 description of the forms in which Martic participated in the joint

25 criminal enterprise. It says, He participated in, as it says here, in all

Page 11371

1 ways of the police force to assist in the execution of the joint criminal

2 enterprise through the commission of crimes. This is a blank cheque in a

3 way. This is something that the Prosecutor goes on to elaborate in the

4 indictment, yet it is in contravention of all the evidence that has been

5 called. Prosecution witness Kerkkanen confirmed that in 1.200 pages of

6 documents related to the Secretariat of the Interior and he made a

7 selection in those documents, yet he was unable to find a single document

8 in which Martic ordered a commission of any unlawful or illegal act.

9 Well, such a monstrous plan should rest on at least one such order. Yet,

10 this was not the case because this was not done.

11 And I think this would be an appropriate time for a break.

12 JUDGE MOLOTO: Thank you very much. We will take a break and we

13 will come back at quarter to 11.00. Court adjourned.

14 --- Recess taken at 10.15 a.m.

15 --- On resuming at 10.45 a.m.

16 JUDGE MOLOTO: As indicated before the break, I think this must

17 bring us to the end of the Defence submissions. The Defence has made

18 extensive submissions, and anything that may not have been covered in oral

19 submissions I'm sure the Bench will read on the written submissions, which

20 are expected to be as comprehensive as they can be.

21 We'll then ask you, Mr. Whiting, at this stage, to come up with

22 any rebuttal.

23 MR. MILOVANCEVIC: [Interpretation] Your Honour.


25 MR. MILOVANCEVIC: [Interpretation] I would like the Trial Chamber

Page 11372

1 to point me to a provision in the Rules envisaging that the Trial Chamber

2 will read the final brief and will garner from that what the Defence is

3 supposed to present in the final -- in the closing arguments. I would

4 like to ask the Trial Chamber not to cut short the Defence's closing

5 argument. I asked you to allow me to do so. This is a trial day, as

6 scheduled by you.

7 JUDGE MOLOTO: Mr. Milovancevic, the Bench is making a ruling, and

8 the Bench is not going to point you to any Rules in that says you will get

9 what you get. We've given you equal time. You've had more than enough

10 time. Now, I'm making a ruling. Please don't disturb the proceedings.

11 Mr. Whiting.

12 MR. MILOVANCEVIC: [Interpretation] Your Honour, please allow me.

13 JUDGE MOLOTO: Mr. Milovancevic, you are not allowed. I do not

14 allow you. You are repeating yourself here, indicating that you have

15 actually finished what you want to tell us.

16 MR. MILOVANCEVIC: [Interpretation] I'm just asking you to give me

17 the floor, Your Honour.

18 JUDGE MOLOTO: I'm not giving you the floor, Mr. Milovancevic,

19 okay? I'm just not giving you the floor unless you want to turn this

20 court into something else.

21 MR. MILOVANCEVIC: [Interpretation] The Defence will no longer be

22 present in this trial, in this courtroom, in a situation where my closing

23 argument has been cut short. I can no longer defend Mr. Martic. You have

24 just stripped me of this right and I have no other choice than to leave

25 the courtroom.

Page 11373

1 JUDGE MOLOTO: That is your choice.

2 Mr. Whiting.

3 JUDGE NOSWORTHY: Mr. Milovancevic, please remain in the

4 courtroom. I urge you not to leave.

5 JUDGE HOEPFEL: It might be a question of respect, Mr.

6 Milovancevic.

7 JUDGE MOLOTO: Mr. Whiting.

8 MR. WHITING: Thank you, Your Honours.

9 I will endeavour to be brief in rebuttal. I will not, of course,

10 attempt to address everything that has been raised by counsel. To the

11 extent that relevant matters were raised, I am confident that the Trial

12 Chamber will scrutinise the assertions made by Defence counsel and the

13 evidentiary support in the record for those assertions, just as it will

14 scrutinise any of our assertions made either in our final brief or our

15 final arguments. And, secondly, many of the arguments that have been

16 raised by Defence counsel are arguments that we have either addressed

17 either in our final brief or our closing submissions. So I will not go

18 through every single assertion unless the Trial Chamber wishes me to touch

19 on something that I have not addressed.

20 I will address a few topics. The first is the topic of armed

21 rebellion, which was a topic that ran through the entire Defence closing

22 from beginning to end; that the assertion was that what happened during

23 1991 was an armed rebellion by Croatia against Yugoslavia and various

24 conclusions are then drawn from that with respect to both factual

25 conclusions but also with respect to the joint criminal enterprise and

Page 11374

1 also legal conclusions with respect to the applicability of international

2 humanitarian law, and that's what I would like to address. I would like

3 to address both of those.

4 First of all, with respect to this factual characterisation that

5 what was happening, to put it in such neat terms, that it was an armed

6 rebellion of Croatia against Yugoslavia; that's just not supported by the

7 facts. By the spring of 1991, it was already clear that Yugoslavia, as it

8 existed until then, was not going to survive. On March 16th, 1991, Mr.

9 Milosevic, himself, declared on television, it's in evidence as Exhibit

10 979, that Yugoslavia's -- Yugoslavia has entered the last phase of its

11 agony.

12 In June of 1991, Mr. Milosevic told Mr. Karadzic that Croatia and

13 Slovenia should be allowed to separate, but that the only question was

14 that the disintegration should be -- should occur in line with our

15 inclinations. Already, everybody understood that Yugoslavia was not going

16 to remain, was not going to continue to exist. It was disintegrating. It

17 was coming apart. Even the Defence expert on constitutional law, Ms.

18 Avramov agreed by the summer of 1991 everybody understood that Yugoslavia

19 would remain intact.

20 And so to --

21 JUDGE HOEPFEL: What do you mean when you say wouldn't remain or

22 would remain?

23 MR. WHITING: I misspoke. Thank you, Your Honour. Would not

24 remain intact.

25 And so to try to characterise the events after that date and the

Page 11375

1 war that occurred during the summer of 1991 and into the fall of 1991 and

2 continued until 1995 as an armed rebellion by Croatia against Yugoslavia

3 is simply not supported by the facts. What was happening was Yugoslavia

4 was breaking apart, and the only issue was how it was going to break

5 apart. And Serb leaders in Belgrade and Krajina wanted to create a state

6 for Serbs, joining together Serb areas in Croatia, Bosnia and Herzegovina,

7 and Serbia and Montenegro; and that was how they wanted it to break apart,

8 that's what they wanted the result to be. I'm pausing because I'm --

9 JUDGE MOLOTO: Yes. I wanted you to finish your point. I will

10 ask you a question when you finish this point, before you go to the next

11 one.

12 MR. WHITING: Okay. I have a number of points to make under the

13 topic of armed rebellion, but please interrupt me at any time.

14 JUDGE MOLOTO: I just wanted to say what would your comment be

15 about the fact that Articles 3 and 5 of the ICTY Statute are applicable to

16 regardless of whether a conflict is internal or international.

17 MR. WHITING: Yes, that is something I will address, Your Honour,

18 and I can address it right now. It's a little bit further down on my

19 notes.

20 JUDGE MOLOTO: If it is further down, deal with it when it comes.

21 MR. WHITING: Thank you.

22 I would first like to stay with the factual matters and then I'll

23 come to those legal matters.

24 Moreover, long before the spring of 1991, long before it was

25 obvious that Yugoslavia was disintegrating, Serb leaders, including the

Page 11376

1 accused, Mr. Martic, in the Krajina were pursuing this vision of a

2 separate state for Serbs. And it was pursued, and this is fully set forth

3 in our final brief, by promoting ethnic separation, ethnic conflict. And

4 in the Krajina, it was pursued by pursuing a purpose of -- to forcibly

5 remove the Croatian population.

6 Now, as a part of the argument that the Defence has made trying to

7 portray this as an armed rebellion of Croatia against Yugoslavia, there

8 was references right at the beginning of the Defence closing argument that

9 it was -- that Yugoslavia and the Serbs in Krajina were regular state

10 organs. And today the Defence indicated that everything that was

11 happening in the Krajina was following the Croatian constitution and was

12 lawful and everything that the Serbs were doing to organise in the Krajina

13 were lawful steps, but --

14 JUDGE MOLOTO: Following the Croatian constitution or the Yugoslav

15 constitution?

16 MR. WHITING: Well, I think both. I think both. But I think the

17 assertion today was that the Serbs in the Krajina, their self-organisation

18 into the SAO - I heard an open mike - that their organisation into the SAO

19 Krajina during 1990 and into 1991 was permitted under the old Croatian

20 constitution and that this was pursuant to the argument that they were a

21 constituent nation; that as a constituent nation they had the right to do

22 those things.

23 But the evidence, Your Honours, is that every -- that there was

24 nothing regular about what was happening in Croatian in the SAO Krajina.

25 In 1990 and in 1991, before -- certainly before the Croatian constitution

Page 11377

1 was changed in December of 1990, there was nothing regular about what was

2 going on. There were Defence witnesses and Prosecution witnesses that

3 agreed on this. This was illegal arming of Serbs. There were barricades

4 that were he reacted by Serbs which were illegal. There was the Council

5 of National Resistance that engaged in illegal provocations.

6 The Serb leaders, including Mr. Martic, renounced openly the

7 authority of the Croatian authorities, of the Croatian police; that was

8 done -- that was done in a kind of de facto, public way in August of 1990.

9 It's in Exhibits 4 and 5, and then it was done formally in the beginning

10 of January, 1991, on the 4th of January, 1991. There is an exhibit. I

11 don't have the reference offhand, where the SAO Krajina formally rejects

12 the authority of the Croatian police. There are provocations. There are

13 statements to the press made by Mr. Martic which are not authorised, and

14 in fact he is suspended. So to characterise what is happening in 1990 in

15 the SAO Krajina as just regular and pursuant to law and following their

16 rights as a constituent nation is just not supported by the evidence.

17 The Defence also - and I'm still on the facts here, and then I

18 will very quickly move to the law. It's the next point, actually, Your

19 Honour - the Defence also contended yesterday that it was the JNA that was

20 suppressing this armed rebellion in Croatia and that the TO and the police

21 in the SAO Krajina were "loyal to the federal state" and that "they had

22 the duty to comply with all orders of the federal state." This is at

23 11266 of yesterday's transcript.

24 Now, there are two things to say about this contention, aside from

25 what I've already said about the fact that this wasn't simply an armed

Page 11378

1 rebellion of Croatia. This was Yugoslavia disintegrating and various

2 leaders making their decisions about how it was going to disintegrate.

3 The first thing of course is speaking about duty here rings all kinds of

4 alarm bells, because of course I think it's beyond dispute that nobody has

5 a duty, including the police and the Serb leaders and the Krajina,

6 including Mr. Martic. Nobody has a duty to enter into any criminal

7 conduct or any criminal plan. So to the extent that this is an argument

8 that Mr. Martic was just following orders of the JNA in doing whatever he

9 did, this of course would not be a defence to criminal conduct.

10 Moreover, it completely turns the story on its head. The reality

11 is not -- and the evidence is overwhelming about this. The reality is not

12 that it was the JNA in there suppressing the rebellion and ordering the TO

13 and the police to follow along and to comply with orders. It was just the

14 opposite. The story here is that from August of 1990 it was the Serb

15 leaders in the Krajina, including Mr. Martic, who were trying to pull the

16 JNA into the conflict on their side. They were trying to get the support

17 of Belgrade and they were trying to get the support of the JNA on their

18 side. They were at the forefront of the conflict.

19 Look at Exhibit 496, it's an interview of Mr. Martic from October

20 of 1994. And he says, speaking about August of 1990, he says that his

21 message to Belgrade was, We either need arms or the JNA to protect us.

22 Remember that at Plitvice, after Plitvice, which occurs at the end of

23 March 1991, Mr. Martic says - and this is Exhibit 207- he says: "We will

24 wait to see what the army does; and if they don't do anything, our men

25 will drive the Croatian out of here."

Page 11379

1 He will take the lead. He speaks many times, many times -- he

2 will take the lead if the army doesn't come in. There are many exhibits

3 about the close cooperation with the JNA, the fact that they have -- that

4 they share the same goals, the support that he is receiving and has been

5 promised from Belgrade, from Slobodan Milosevic, in terms of support and

6 weapons. And remember that before August of 1991, the JNA is acting as a

7 buffer between the two sides. It is acting as a buffer between the Serbs

8 and the Croats in conflict. Whenever there is a clash, the JNA comes in

9 and after the fighting occurs and acts as a buffer. It's only in August

10 of 1991 that the JNA finally gets pulled in on to the side of the Serbs,

11 and after August of 1991 it is fully on the side -- fighting for the side

12 of the Serbs; and that is clear in Mr. Kadijevic's book, which is Exhibit

13 24.

14 So, again, in December -- even in December of 1991, this is

15 Exhibit 917, Mr. Martic is at the Presidency session of the SFRY and he is

16 complaining about -- he is complaining that the leaders in Belgrade are

17 not aggressive enough; that they are willing to accept this peace plan

18 that has been proposed, the Vance Plan. And he's says, No, we don't want

19 that peace plan, that's not acceptable. We want war. We would rather

20 fight. We would rather go to war; and he then, after that, is persuaded

21 by Mr. Milosevic to accept the plan. The evidence is clear on that; and

22 then by February of 1992, he's back again at one with the Belgrade leaders

23 and he's praising Mr. Milosevic for all the support.

24 So the story, as I've said, is the leaders in the -- in the

25 Krajina are pulling in support from Belgrade and from the JNA. And at a

Page 11380

1 minimum, they are all working together. There is certainly no evidence to

2 support the notion that the TO and the police in the Krajina are simply

3 following along what the JNA tells them to do.

4 Now, finally, Your Honour, I'll reach that point that you raised -

5 and I apologise for the delay - the legal issue. There are a number of

6 legal issues. And the first is what Your Honour asked, which is do

7 Articles 3 and 5 apply to -- I'm getting guidance. Yes. I'm going to

8 have actual legal support to support what I'm going to say now. Articles

9 3 and 5 indisputable apply both to -- apply to internal armed conflicts.

10 Article 3 offences are applicable to all armed conflicts, internal or

11 international, and I would point, with the assistance of Ms. Valabhji, to

12 the Galic appeals judgement, paragraph 120. Article 5 explicitly speaks

13 of crimes committed in armed conflict, whether international or internal

14 in character. So there's no dispute about that.

15 The second point is --

16 JUDGE MOLOTO: Does that article make a distinction between a

17 civil war and a rebellion?

18 MR. WHITING: No. What I believe the Defence is referring to -

19 and I glean this from the citations that they've made - is to the question

20 of whether there existed an armed conflict at the time. And the Defence

21 counsel cited to Protocol II to the Geneva Conventions, and specifically

22 Article 1, paragraphs 1 and 2. And the issue is not -- it's not armed

23 rebellion versus civil war, or illegal versus legal. That's not the

24 issue.

25 The issue is: Is it an armed conflict? And Article 1 gives

Page 11381

1 some -- Article 1, paragraph 1 gives some definition about what an armed

2 conflict is. And this has been fully explored, and the test for an armed

3 conflict has been set out in the Tadic judgement. And this is fully

4 referenced and set out in our brief. And essentially the test for an

5 armed conflict, the two considerations are: Number one, the intensity of

6 the conflict and the degree of organisation of the parties. And what is

7 not included, according to paragraph 2, and I think this is what Defence

8 counsel referring to and perhaps what they mean when they say "rebellion"

9 is, it says: "The protocol shall not apply to situations of internal

10 disturbs and intentions such as riots, isolated and sporadic acts of

11 violence, and other acts of a similar nature as not being armed

12 conflicts." And that has been explored in the law, riots, banditry,

13 isolated events.

14 Clearly, that is not what we have here. What we -- there is

15 overwhelming evidence, and I can't really believe that the Defence would

16 dispute this, especially given all of the talk which - some of it was

17 exaggerated - but all of the talks about the weapons and the preparation

18 that the Croatian side had and the army and all of the forces that they

19 had. As I say, they weren't exactly accurate. But nonetheless, I don't

20 really see how they would dispute that by August of 1991, both the

21 intensity of the conflict - of the fighting - and the degree of

22 organisation of the two sides supports an armed conflict.

23 And just to point to a few pieces of evidence. Again, remember

24 that the JNA before August of 1991 is acting as a buffer when there are

25 clashes. Implicit in that is that there are two sides fighting. There is

Page 11382

1 a cease-fire at the beginning of August 1991. There's no dispute about

2 that. Some reports, two reports went in through the cross-examination of

3 Defence witness Djukic - and I don't have the exhibit cites, but they'll

4 be easily found - showing violations of the cease-fire, continued

5 fighting. There was widespread fighting in the Banija region in July of

6 1991 and again in September of 1991. There's fighting in Kijevo. Exhibit

7 491 is an interesting exhibit. It's a document, an official declaration

8 by the RSK I believe in 1992, which sets as the beginning date of the

9 armed conflict. It says the date the armed conflict began, 17th August

10 1990.

11 Mr. Kadijevic's book, which is Exhibit 24, talks about the

12 different phases of the armed conflict of the war. Mr. Martic himself

13 made statements which we've cited in our closing arguments, in our final

14 brief about fighting and about war. There is no dispute that the test is

15 satisfied that it is an armed conflict at least by August 1991; and,

16 therefore, as a legal matter Articles 3 and 5 indisputable apply. And

17 whether it's a rebellion -- all the other issues about whether it's a

18 rebellion or who started it, those all fall away. If there's an armed

19 conflict under the test, the articles apply.

20 The Defence makes a -- I'm sorry. Okay.

21 The Defence makes another legal argument which I think can be

22 touched on briefly. It was made yesterday, and it was also I think kind

23 of referred to today, which is that the protocols prohibit an intervention

24 by a third country -- or what they prohibit, rather, is they prohibit a

25 third country using the protocol as a basis for intervention. But that's

Page 11383

1 not at issue here; that's not what this case is about. This case is not

2 about intervention by a third country. This is not about whether a third

3 country used the protocol as a basis for intervention. It is simply

4 inapplicable, and it has nothing to do with the analysis of the dispute

5 between the Serb fighters and Serb forces in the Krajina and the JNA and

6 from Belgrade, and the Croatian side. There is no third country there.

7 It has nothing to do with this case. So that is a complete red herring,

8 and it's completely inapplicable.

9 I'm going to move on to another topic unless there are any

10 questions about that topic.

11 JUDGE NOSWORTHY: Would that, Mr. Whiting, appropriately address

12 counsel's arguments in respect of Article 3 and nonintervention and the

13 issues of sovereignty?

14 MR. WHITING: Yes. I believe it does, because the issue of the

15 sovereignty of Yugoslavia -- that there is no issue of the sovereignty.

16 It is not part of this case. Nothing in this case turns on whether

17 Yugoslavia's sovereignty was violated in any way by a third country.

18 Whether it was or it wasn't doesn't change anything about the crimes

19 alleged or the evidence in this case.

20 JUDGE NOSWORTHY: I thought it had more to do with the invoking of

21 the provisions. But, thank you, I am following your thread of argument.

22 Thank you, Mr. Whiting.

23 JUDGE MOLOTO: You asked us to ask a question about this topic

24 before you move to the next one. Is there anything to be said about the

25 jurisdiction of the Tribunal insofar as - you may pardon my understanding

Page 11384

1 of it - insofar as the jurisdiction is over individuals and not over

2 states and assuming the fact that there was a third-party state that had

3 intervened. How would that affect the proceedings here where this

4 Tribunal has no jurisdiction over states?

5 MR. WHITING: Well, I think that's correct, Your Honour. I think

6 that in the event that there was a complaint by a state that its

7 sovereignty had been violated by another state, and whether or not that

8 state invoked our Protocol II or invoked some other provision, that would

9 not properly be an issue that could be taken up by this Tribunal. That's

10 correct. The Tribunal would not be jurisdiction over that. I suppose

11 that's something that could be raised down the street at the ICJ. But

12 it's certainly not an issue that could be raised here, and it's not a

13 defence. It's not a defence to the crimes.

14 JUDGE MOLOTO: By individuals.

15 MR. WHITING: By individuals. That's correct. And, Your Honour,

16 I don't know. I can't say if any state that intervened -- if any state

17 can be said to have intervened in the conflict, invoked Protocol II, I'm

18 not aware if they did. But if they did, that's not an issue that really

19 has any bearing on this case in our view.

20 The next topic I wanted to address is the topic of joint criminal

21 enterprise. The Defence raised for the first time in this case,

22 yesterday, the claim that joint criminal enterprise liability is not

23 within the Statute; and, therefore, Mr. Martic cannot be convicted of

24 that. This claim fails for several reasons.

25 The first is the claim is procedurally waived. This is a claim,

Page 11385

1 this is a challenge that should have been raised in Rule 72 motion filed

2 after the indictment and after the supporting materials were received.

3 Rule 72 motions require the Defence to raise any issue challenging

4 jurisdiction. And Rule 72(D)(iv) says that that includes a motion which

5 challenges an indictment on the ground that it does not relate to any of

6 the violations indicated in Articles 2 through 7 of the Statute. So this

7 is clearly something that should have been raised a long time ago. It was

8 not.

9 JUDGE MOLOTO: You're saying this was a jurisdictional issue.

10 MR. WHITING: It is a jurisdictional issue, Your Honour, yes.

11 JUDGE MOLOTO: And so also it would have been a jurisdictional

12 issue, the question of armed rebellion?

13 MR. WHITING: No, Your Honour, because that is a factual issue.

14 That is a factual issue, so I think that is fairly raised during the

15 trial.

16 And I will say one last thing about armed rebellion -- armed

17 conflict - I'm going to call it armed conflict - and that is that the

18 Defence, until yesterday and today, never disputed that there was an armed

19 conflict in the region. And, in fact, I think if you'll look at questions

20 that were asked of witnesses, it was frequently understood and talked

21 about that there was an armed conflict in the area. There was fighting on

22 both side. And, in fact, in the armed conflict section of our brief, in

23 the legal part, we cite to a Defence witness who talked about the dates of

24 the armed conflict.

25 JUDGE MOLOTO: In fact, the point I was trying to make to you is

Page 11386

1 that if in fact it was the contention from the beginning of the Defence

2 that the amount of disturbance that took place did not amount to armed

3 conflict, then the question of jurisdiction would arise. There is no --

4 this is no armed conflict, in our view, as the Defence; therefore, Article

5 3 and 5 would not apply. Therefore, you have no jurisdiction to hear this

6 matter.

7 MR. WHITING: I think it's correct. It can be characterised in

8 that sense as a jurisdictional matter; however, since there are factual

9 predicates to it, I don't think it is something that would necessarily be

10 waived if not raised before trial.


12 MR. WHITING: So, I'll leave it at that.

13 And on the issue of waiver, I would just point to the Trial

14 Chamber, these are these citations are not directly on point. They are

15 more generally about waiver, but the Celebici appeals judgement, at

16 paragraph 640, and the Naletilic appeals judgement, at paragraph 21.

17 Secondly, and more directly on the point, with respect to whether joint

18 criminal enterprise is properly within the Statute, this is an issue that

19 has been considered again and again by the Tribunal.

20 It is squarely resolved, and it is certainly within the Statute.

21 It's not the first time that this challenge has been made. It -- I would

22 point the Trial Chamber to the Tadic appeals judgement, paragraphs 220,

23 226; the decision on Ojdanic's - I'm mispronouncing that one, for some

24 reason I cannot pronounce that - Ojdanic's motion - one Judge here is

25 better at pronouncing that than me - motion challenging jurisdiction on

Page 11387

1 joint criminal enterprise. It's dated the 21st of May, 2003, that's at

2 paragraph 30.

3 In the ICTR there is a decision in Karemera. It's called Decision

4 on Jurisdictional Appeals, Joint Criminal Enterprise, 12th of April, 2006,

5 specifically paragraph 13. The law is clear that joint criminal

6 enterprise is a recognised mode of liability. It wasn't added. It is an

7 interpretation of the commission mode of liability which is explicitly

8 within the Statute, within 7(1) of the Statute.

9 Third, the Defence misstates the source of law that is applied at

10 the Tribunal. It is not simply the declarations of the Security Council.

11 It is also customary law, and for that I would point again to the Ojdanic

12 decision of the 21st of May, 2003, at paragraph 9; and the Hadzihasanovic

13 decision on interlocutory appeal challenging jurisdiction in relation to

14 command responsibility, 16th of July, 2003, paragraph 44. It is customary

15 law as well as other sources of law, for example, precedent.

16 The final argument, just very briefly. The Defence counsel

17 suggested today that the allegation of joint criminal enterprise

18 essentially meant that the Prosecution did not need to prove anything, and

19 I think that's obviously not true. We have set forth the elements that

20 are -- that we have to prove beyond a reasonable doubt, and we believe

21 that we have done so.

22 The next topic, Skabrnja. The Defence made a few arguments with

23 respect to Skabrnja, and I'll just make a few brief response. The Defence

24 claimed that --

25 MR. MILOVANCEVIC: [Interpretation] Your Honours, just a minute,

Page 11388

1 please. I apologise. The Defence did not put any arguments concerning

2 Skabrnja, because it wasn't allowed to. So what is the Prosecutor talking

3 about now? We never mentioned it in our closing arguments, because you

4 did not allow us to.

5 JUDGE MOLOTO: I'm not quite -- I don't know what the Prosecutor

6 is about to say about Skabrnja. I'm not saying you are not rightly

7 standing up. Let's hear what he's got to say and then you can stop it if

8 you didn't say it. Let's see because he says you said --

9 MR. MILOVANCEVIC: [Interpretation] Your Honours, I apologise. I

10 apologise to my learned friend. I want a ruling of the Trial Chamber, and

11 that is your ruling because you are the Presiding Judge. It is not up to

12 you to decide what the Prosecutor is going to say. When I haven't said

13 anything during my closing arguments in this courtroom about Skabrnja, he

14 has no right to raise the issue. And it is up to the Chamber to rule on

15 this.

16 JUDGE MOLOTO: Any response to the objection, Mr. Whiting?

17 MR. WHITING: Yes. I'm going to respond to very specific

18 assertions, and I'll give the page numbers. The first assertion is at

19 11273 from yesterday's argument. The assertion is as follows: "On the

20 20th of November, 1991, Split, Zadar, Zemunik airport were all blocked."

21 That's what I was going to -- and I was going to continue along those

22 lines responding to specific assertions.

23 JUDGE MOLOTO: [Microphone not activated].

24 THE INTERPRETER: Microphone, Your Honour, please.

25 JUDGE MOLOTO: Are Split, Zadar, Zemunik equivalent to or the same

Page 11389

1 thing as Skabrnja?

2 MR. WHITING: No, but this was in the context of talking about

3 Skabrnja. In the beginning of the paragraph, he says, "It's all about

4 Skabrnja." He confirmed that, and this is Mr. Milovancevic speaking:

5 "He confirmed that in Skabrnja the units held the line until a certain

6 point in time." He's talking about Skabrnja.

7 JUDGE MOLOTO: You're saying, it's line 11273.

8 MR. WHITING: Page 11273.

9 JUDGE MOLOTO: That was on --

10 MR. WHITING: Yesterday.

11 JUDGE MOLOTO: -- yesterday.

12 MR. WHITING: These are points that he raised in relation to

13 Skabrnja, and I'm going to just respond to specific points that he made.

14 JUDGE MOLOTO: 11273.

15 MR. MILOVANCEVIC: [Interpretation] Your Honour.

16 JUDGE MOLOTO: Just a second. I'm looking at 11273. At 11273 it

17 is written here: "He confirmed that in Skabrnja the units held the line

18 until a certain point in time, 11.30, and then the line was pierced."

19 This is Mr. Milovancevic speaking yesterday, and now you have referred to

20 Skabrnja. And I rule your objection out of order, Mr. Milovancevic.

21 Yes, Mr. Whiting, you may proceed.

22 MR. MILOVANCEVIC: [Interpretation] Your Honour, if I may, just one

23 sentence.

24 JUDGE MOLOTO: Yes, Mr. Milovancevic.

25 MR. MILOVANCEVIC: [Interpretation] I was talking about the armed

Page 11390

1 conflict. It was a general topic, and the issue of Skabrnja --

2 JUDGE MOLOTO: You mentioned Skabrnja.

3 MR. MILOVANCEVIC: [Interpretation] -- I was not addressing that at

4 all.

5 JUDGE MOLOTO: You mentioned Skabrnja here. Let's hear what he's

6 going to talk about Skabrnja. We have ruled you out of order.

7 MR. WHITING: Thank you, Your Honour. I'm going to respond just

8 to specific points raised by Defence counsel. He said on the 20th of

9 November, 1991, Split, Zadar, Sibenik, and Zemunik airport were all

10 blocked. That is not supported by the evidence. The evidence shows that

11 there was a cease-fire in October, that it was proceeding smoothly.

12 Defence witness Lakic himself said that planes were taking off from

13 Zemunik airport in November 1991. There is no evidence that these

14 locations were blocked on the 20th of November, 1991.

15 The second assertion is that all - it's in the next paragraph on

16 the same page - that use of this equipment was made impossible when all

17 these roads were blocked. Again, the evidence is to the contrary. The

18 evidence shows that all these roads were not blocked, that the JNA had

19 found an alternative road to use, and the witnesses were quite consistent

20 on this point.

21 Finally on this topic, the Defence again made references to the

22 testimony of Marko Miljanic, and I would just say again - it's a point

23 we've made before, but I would just say again - that the Defence picks out

24 selective portions of his testimony. And we would urge the Trial Chamber

25 to read the entirety of his testimony and take it in context. What he

Page 11391

1 says about what was happening in Skabrnja and what the men were doing

2 there and what their purpose was and what actually occurred, rather than

3 taking out of context selective portions.

4 Moving on to Bruska, the Defence counsel, in our view, speculates

5 that the reason that the men who went to the door, to Jasna Denona's door

6 and knocked on the door, that the reason they announced themselves as

7 Martic's police was to gain entry to the house. Well, first of all, this

8 theory does not even make face -- make sense on its face. The last thing

9 in December of 1991 that you would do if you wanted to gain entry to a

10 house in Bruska is announce yourself as Martic's police. After all the

11 evidence is that Martic's police had been coming to that village and

12 harassing people for weeks before that occurred. Maybe knocking on the

13 door and saying you're the milkman or you're the Croatian police, that

14 might be a theory. But knocking on the door to say that you're the

15 Martic's police to gain entry, that really makes no sense. And the

16 evidence suggests that they actually shot their way in -- started shooting

17 before they got into the house.

18 The second problem with this speculation is that it overlooks the

19 fact that Ante Marinovic testified that he saw that the men had -- were

20 not just announcing themselves as SAO Krajina police, but that they were

21 wearing SAO Krajina police uniforms. And this starts to go quite a long

22 way to be a ruse to gain entry, but to put on uniforms to gain entry. The

23 evidence in our view is really unrefuted, and there is no reasonable doubt

24 that these are Martic's police.

25 The Defence also made the suggestion, as odd as it may seem, that

Page 11392

1 Ms. Denona was treated well by the Serbs in the hospital, which is true.

2 She testified that that was true. She did not -- I don't think she

3 testified that she stayed a year with Serbs, and I don't know what that

4 was a reference to. But in any event, the suggestion that I thought was

5 odd was that Mr. Martic should get credit for that has nothing to do with

6 the police.

7 And to see what Ms. Denona thought of what had happened, you only

8 need to go to page 1299 of the transcript where Mr. Milovancevic himself

9 asked this question: "Mrs. Denona you survived a horrific event; and

10 apart from the fact that you were seriously wounded, ten people were

11 killed on that occasion. Have you talked to your friends and relatives

12 for the thoughts or motives for such a horrific act?"

13 And her answer was: "The only explanation is because we were

14 Croats. I don't see any other reason. Why would innocent civilians and

15 especially I myself, I was a child basically. I was only 15 years old.

16 Why would we be a hindrance to anybody? I don't see any other reason."

17 By the way, Defence counsel - this is a minor point, but worth

18 just taking a second on - Defence, yesterday, said that witness MM-78

19 testified about a policy of Krajina authorities to expel Croats from their

20 homes and villages wherever they lived. In his testimony he actually said

21 RSK -- that it was a policy of the RSK. But in the context of the

22 testimony, it's clear that he's talking about the SAO Krajina because he's

23 talking about 1991 and he's talking about Potkonje and Vrlika and Drnis.

24 Defence counsel suggested that these were responses given in answers to

25 Prosecution questions; in fact, this is what the witness testified to on

Page 11393

1 cross-examination. This testimony was elicited by Defence counsel, not by

2 the Prosecution.

3 The next topic is Milan Babic. First of all, it's obviously the

4 case that the Prosecution's case is not built on one single witness. Mr.

5 Babic is an important witness. There's no disputing approximate that.

6 But the evidence of all the witnesses and all the elements corroborated

7 not by multiple witness testimony but by documents and by what happened on

8 the ground and the inferences that can be drawn from that.

9 The Defence counsel's central claim seems to be now that Mr. Babic

10 was mentally unstable when he testified and that therefore -- and he draws

11 from that. That's his first assertion, and he draws from that that his

12 testimony should be disregarded --

13 JUDGE HOEPFEL: May I interrupt. The translation which was given

14 to us was emotionally unstable, which is even more narrow, actually.

15 MR. WHITING: Okay. Yes. Okay. Emotionally unstable.

16 The first point to make about this is that the Parker Commission

17 report which the Defence counsel read from yesterday. And I hesitate -- I

18 thought about objecting but I did not. But I will say now that that is

19 not in evidence. That report is not in evidence. It was improper to read

20 it and to put those facts to the Trial Chamber. And in our view it was

21 read in a selective, misleading way. But in any event, it's not in

22 evidence and it should be completely disregarded.

23 There is no basis to conclude, either from anything that has been

24 put before this Trial Chamber or from the fact that Mr. Babic committed

25 suicide, that he was emotionally unstable in a way to make his testimony

Page 11394

1 unreliable. And this argument, as I think the Trial Chamber suggested

2 yesterday, has really already been rejected by the Trial Chamber and the

3 Appeals Chamber. And to the extent it's further considered by the Trial

4 Chamber in its deliberations, it should again be rejected. There is no

5 basis to draw that conclusion that his testimony is unreliable because he

6 committed suicide. There is simply no connection between the two.

7 It should be noted that it is on the record that Mr. Babic was

8 interviewed extensively by the OTP, certainly it was in 2002, but I think

9 it may have actually begun in 2001. He testified in the Milosevic case

10 extensively in 2002. He provided a factual basis for his own guilty plea

11 in 2003, and all of these things occurred before he was sentenced to 13

12 years' imprisonment, which is the key -- Defence counsel seems to suggest

13 that that is where things turned for Mr. Babic, is when he was sentenced.

14 Defence counsel, of course, was given the opportunity to point to

15 any -- to any inconsistencies between Mr. Babic's testimony before this

16 Trial Chamber and any of his prior interviews or prior testimonies.

17 Defence counsel did point to some, what we say, are relatively minor

18 inconsistencies with his OTP interview, did not point to any

19 inconsistencies with his testimony in Milosevic, did not point to any

20 inconsistencies to the factual basis that he provided for his guilty plea.

21 And with respect to the inconsistencies in the OTP interview, none of

22 those went to the core facts about the joint criminal enterprise and about

23 Mr. Martic's responsibility.

24 Therefore, it simply cannot be concluded that -- since it's clear

25 that the core of his testimony, the substantial points, were consistent

Page 11395

1 for years, cannot be concluded that somehow he had become mentally

2 unstable or emotionally unstable during this trial or after he was

3 sentenced in a way that would have any effect on his testimony, because

4 it's -- he gave the same testimony before that happened.

5 The Defence also points to disputes that Mr. Babic had with others

6 to suggest that there was no joint criminal enterprise, but the fact that

7 members of the joint criminal enterprise may have had disputes about their

8 own power or strategies to be employed - and the Prosecution accepts that

9 that occurred - does not undermine the evidence of the joint criminal

10 enterprise. They agreed on this common purpose. They pursued together

11 this common purpose. It doesn't -- doesn't change anything that they also

12 were fighting among themselves about who was going to have more power or

13 how they were going to achieve that common purpose.

14 Mr. Martic himself had disputes with Frenki Simatovic and Milan

15 Babic about power; that's clear. And it's clear, as I said earlier, that

16 in December 1991 the Krajina Serb leaders were more aggressive in their

17 approach than the Belgrade leaders, and that's evident if you read Exhibit

18 917, the Presidential session. But nonetheless, the evidence shows,

19 despite those differences and rivalries, the evidence shows that they were

20 achieving a common purpose.

21 The Defence today pointed to Exhibit 236, which is a letter that

22 Milan Babic wrote in September of 1991 to The Hague Conference, which is

23 full of very extreme language, though unfortunately it does not

24 necessarily stand out at the time because there's other documents like it.

25 And the Defence asks -- and Mr. Babic was extensively cross-examined on

Page 11396

1 this document if you will remember.

2 The whole document was read to him. And after it was read to him,

3 he was asked -- he was put the question that Defence counsel raises again

4 today which is: "How could you say that then but say something different

5 now?" And Mr. Babic said: "Well, that was clearly exaggerated. It was

6 over the top." He said something different now because he recognised that

7 his own criminal conduct. He recognised that it was exaggerated what he

8 was saying, that it was not true. He recognised what those words were at

9 the time. Of course he had a different perspective on them today; that

10 only makes -- otherwise, he would not have pled guilty and taken

11 responsibility for his crimes. I'm not quite sure what to make of that

12 argument.

13 Finally, on the issue of Mr. Babic, we would note that the Defence

14 cross-examined Mr. Babic on the key points of his testimony related to the

15 joint criminal enterprise and their defence to the joint criminal

16 enterprise, such as it is. And I'm not going to go through that analysis

17 now, because we have fully set it out in our filing dated the 6th of

18 April, 2006, on our filing with respect to Mr. Babic's testimony at

19 paragraphs 39 through 43. It's a very detailed analysis on that score,

20 and I'd like to incorporate that, by reference, into our closing

21 submission, that analysis that's done in those paragraphs.

22 The next topic is fear.

23 JUDGE MOLOTO: Before you go to the next topic on Mr. Babic, I've

24 got a question. Mr. Babic is indicated in the indictment as an alleged

25 participant in the joint criminal enterprise. In the Prosecution's final

Page 11397

1 brief, in fact, the Prosecution at paragraph 82 stated that Mr. Milan

2 Babic accepted the responsibility for his role in the JCE alleged in the

3 case -- in this case. However, in discussing the plurality of persons

4 acting in the JCE, the Prosecution did not include Milan Babic as a

5 participant therein.

6 I refer you to paragraphs 283 to 284 of the Prosecution's final

7 brief where members of the joint criminal enterprise are being enumerated,

8 and Mr. Babic's name does not appear there. Is this an oversight or is it

9 being submitted that he's not a member now; and if so, how do you

10 reconcile the apparent contradiction?

11 MR. WHITING: Your Honour, that is just an oversight. He should

12 be included. I apologise for that. I am grateful to Your Honour calling

13 it to our attention. He is absolutely a member of the joint criminal

14 enterprise; he is one of the persons. Thank you, Your Honour.

15 JUDGE MOLOTO: You're welcome.

16 MR. WHITING: The next topic is fear. The Defence counsel asserts

17 that the Serb leaders acted out of fear of the Croatian authorities, which

18 Defence counsel yesterday, in an interesting choice of words, referred to

19 as "evil" in referring to the Croatian authorities. It's at 11281. Now,

20 there's several points to make about this.

21 The first point is that ...

22 [Trial Chamber confers]

23 JUDGE MOLOTO: It's just been drawn to my attention that perhaps

24 that omission might -- oversight as it might be, it is a serious omission

25 that you've made. You amend that orally?

Page 11398

1 MR. WHITING: If we may, yes, if we could amend that paragraph to

2 include Mr. Babic.

3 JUDGE MOLOTO: Thank you very much. The amend is granted.

4 MR. WHITING: The first point to make about fear, Your Honours, is

5 that the Prosecution.

6 [Trial Chamber confers]

7 JUDGE MOLOTO: Mr. Milovancevic, do you have anything to say about

8 the amendment?

9 MR. MILOVANCEVIC: [Interpretation] We agree to have that amended.

10 JUDGE MOLOTO: Thank you very much.

11 In accepting the amendment, the Chamber just wants to raise it on

12 the record that in fact there is evidence on the record to support that

13 amendment.

14 MR. WHITING: Thank you, Your Honours.

15 With respect to fear, the first point to make is that the

16 Prosecution has never made -- or certainly never intended to make and

17 should not have been interpreted to have made the extreme claim, as

18 Defence counsel puts it, that Serbs in Croatia had no basis for fear. Of

19 course there were fears. Serbs were becoming a minority, numerical

20 minority, in Croatia after having had a dominant position in Yugoslavia.

21 There were concerns, of course, of extreme statements that were being

22 publicised by individual Croatian -- Croats and being publicised and

23 interpreted. There were fears about what was -- how they were going to be

24 treated, how the state was going to be organised. It was not just

25 Yugoslavia breaking apart, but it was also communism falling away and new

Page 11399

1 parties emerging. Of course there were fears. Mr. Babic spoke about his

2 fears that he had.

3 What the Prosecution has contended always is that the Serb leaders

4 exploiting these fears and exaggerated them and whipped them up for their

5 own purposes. And this is a very real distinction. It is one thing to

6 have fears about your future and about how the state was going to be

7 organised and about political issues that were very important at the time.

8 It's something completely different to start talking about regularly,

9 again and again and again and again about Ustashas, about biological

10 extermination, about genocide and liquidation, and this talk started very

11 early. This started back in 1990.

12 This kind of talk -- it is this kind of talk and this kind of

13 exaggeration which makes co-existence impossible, which leads to

14 separation of ethnicities, leads to ethnic hatred, to conflict, and

15 crimes. And it was this kind of talk, as distinct from ordinary fears

16 that groups and ethnicities had in Yugoslavia and have in other countries

17 as well, that underpinned the commission of crimes and the pursuit of the

18 joint criminal enterprise in this case. The Serb leaders, faced with a

19 disintegrating Yugoslavia, faced with a new situation, they chose the path

20 towards nationalism and extremism and ethnic conflict. They made that

21 choice.

22 The next point is that this argument about fear is not a defence

23 to the joint criminal enterprise, no matter how it is articulated. Even

24 on the Defence's own terms, even accepting the characterisations by the

25 Defence, it is not a defence. It does not undermine in any way the joint

Page 11400

1 criminal enterprise. The indictment allegation a joint criminal

2 enterprise to forcibly remove Croats to form a Serb-dominated state. If

3 this was done because of fear, that is not a defence. The law does not

4 disappear because there is fear. In fact, that is when the law is most

5 important; that is why the law is there. It's easy to follow the law when

6 there's no conflict, when there's no fear, there's no war.

7 It is because these wars have fear and threats and nationalism,

8 that is why the law is so important and why -- when people like Milan

9 Martic take the responsibility of commanding forces, of commanding the

10 police, that he also takes the responsibility of following the law. Fear

11 simply does not allow you to embark on an illegal course of conduct, it

12 does not allow you to set aside the law.

13 Now, interestingly, the Defence relies on the testimony of Mr.

14 Dzakula. Yes, Your Honour.

15 JUDGE NOSWORTHY: Could fear prompt you to act defencively? And

16 how would you relate it to the peculiar facts of the case that we have

17 before us?

18 MR. WHITING: Well, Your Honour, it's interesting because the

19 Defence counsel himself said this was not a case of self-defence. And

20 even if it allows you to react -- even if you're reacting defencively to

21 fear, even in a, let's say, non-legal sense. We're not talking about

22 legal self-defence, but we're just talking about your acting defencively,

23 still that does not allow you to choose a path that is illegal. It does

24 not allow you to embark out of fear and out of defensiveness down the road

25 of creating a state and forcibly removing the Croat population through the

Page 11401

1 commission of crimes. And it couldn't be otherwise, Your Honours, because

2 otherwise if that were permissible then we would quickly see a downward

3 spiral in any kind of ethnic conflict.

4 Now -- may I proceed?

5 JUDGE NOSWORTHY: Yes, please do. I had said "thank you" without

6 my microphone on.

7 MR. WHITING: Interestingly the Defence relies on the testimony of

8 Mr. Dzakula, who was our first witness, to support their assertions about

9 Serb fears and anxieties. But we suggest -- we submit that they really

10 missed the whole point of Mr. Dzakula's testimony, because Mr. Dzakula, on

11 cross-examination, did talk about anxieties and fears that Serbs had in

12 Croatia, about the new Croatian symbols, about the constitution, about

13 Croatia moving towards independence. He did talk about that. But

14 remember that he testified that in July of 1991, he and others started --

15 July of 1991, he and others started the Serbian Democratic Forum - this is

16 at page 350 of the transcript - and the purpose of which was to -- it was

17 an initiative to prevent war.

18 In August of 1991, he founded the SAO Western Slavonia; the

19 purpose, to begin negotiations with Croats. In February of 1993, he

20 entered into the Daruvar Agreement, the purpose of which was to reach the

21 beginning of reconciliation with the Croats. He also supported the Z-4

22 plan in 1995. So on re-direct I asked him to try and reconcile these

23 things. Here he had talked about fears and anxieties that Serbs had in

24 1990 and 1991 about the symbols and the institution and independence, and

25 yet he was pursuing these peaceful initiatives.

Page 11402

1 And it's at page 604 and 605 in the transcript - and I would urge

2 Your Honours to pay particular attention to this exchange. I won't read

3 the whole thing because it's quite long - and I asked him why were you

4 doing that if you were afraid? And he said -- part of the answer was: "We

5 knew that both Serbs and Croats were afraid, and we knew that both Serb

6 and Croat citizens of Croatia were held hostage to those two types of

7 policies, which were almost identical, although opposed to each other."

8 In order words, held hostage to extremism, nationalism.

9 And he then later testified about -- and Defence counsel made

10 reference to it, that he -- his parents had been -- he had direct

11 experience with World War II, because his parents had been held in a camp

12 during World War II; and he had relatives, I think there were brothers of

13 his father, who had been killed. He was asked about that: What lessons

14 did you learn from that? And he essentially said that he learned to

15 distinguish between Croats who had committed those crimes and other Croats

16 because his parents had been freed, or maybe it was just his father, had

17 been freed from the camp with the assistance of Croats.

18 So despite his direct, personal experience with those events, he

19 himself understood that this did not mean that all Croats were Ustashas,

20 that they were all threatening, that there was going to be genocide. He

21 understood that there was a choice, and there was a choice between

22 extremism and nationalism and ethnic conflict and another way. And Mr.

23 Dzakula chose that other way. Witness MM-78, he also chose that other

24 way. Mr. Martic, no, he did not. Mr. Babic, he did not. Mr. Milosevic,

25 he did not. The other members of the joint criminal enterprise, they

Page 11403

1 chose the path of ethnic separation, of conflict, creation of a state, and

2 forcible removal of the Croats from that state. They chose that. It was

3 not forced upon them; that was their choice.

4 Defence counsel also said that Mr. Dzakula provided evidence about

5 Croat crimes that had been committed in the Pakrac area and Western

6 Slavonia during the fall of 1991. If you read his evidence, in particular

7 his prior testimony, which is in evidence it's Exhibit 830, he

8 testified -- what he in fact testified about was both Serb and Croat

9 crimes that occurred in Western Slavonia. And, in fact, as a general

10 matter the Serb crimes preceded the Croat crimes. And I would point to

11 pages 10428 to 29 of Exhibit 830, and this is also confirmed by Defence

12 witness 105 at transcript pages 10515 to 19.

13 Your Honours, I just have a -- I think I have another, maybe, ten

14 minutes, but it's sort of a convenient time if we -- for the break, or

15 should I --

16 JUDGE MOLOTO: [Microphone not activated]

17 THE INTERPRETER: Microphone, please, Your Honour.

18 JUDGE MOLOTO: Just finish off.

19 MR. WHITING: Okay. It may be less than ten minutes.

20 The final issue I wanted to talk about is one that came up today,,

21 which is the issue at -- about the change of the constitution in December

22 of 1990, the change of the Croatian constitution. The first is that I do

23 not believe that the -- the way that Defence counsel characterised it,

24 the -- that the constituent nations and the connection to World War II is

25 something that is really on the record. I'm not aware of evidence that

Page 11404

1 quite makes that neat connection between the two and isolates that. I

2 think the story is actually more complicated than that and has to do with

3 multi-ethnic republics existing in a federal state. In any event, I'll

4 leave that for Your Honours to determine, whether that -- that explanation

5 is actually in evidence.

6 But more importantly is the question that -- that came from the

7 Trial Chamber about what this has to do with, we say, is the price of

8 eggs, you say the price of butter --


10 MR. WHITING: Cheese. And what is the implication of the change.

11 And that is, Your Honours, that Prosecution put to Defence witness after

12 Defence witness. We asked every single witness who testified about this

13 issue about the change in the constitution; Well, what did this actually

14 mean. And in our view, that question was never really answered. And the

15 only answer that ever emerged was that it meant that the Serbs could block

16 Croatia from becoming independent, but that's not really -- that, for one

17 thing, doesn't make a lot of sense and doesn't -- the implications of that

18 don't follow. It's contradicted by the conclusions of the Badinter

19 Commission, which are in evidence, which found that, number one, Croatia

20 did not secede from Yugoslavia, rather, Yugoslavia disintegrated. And

21 moreover, the rights of "self-determination of groups, of Serbs in

22 particular, within Croatia did not mean the right to territorial

23 sovereignty but meant the right to all rights as a minority group and as

24 -- to be respected and recognised as a group."

25 But more importantly to this case is that it doesn't change

Page 11405

1 anything about this case. It doesn't -- it doesn't -- it has no -- it is

2 not a defence to the joint criminal enterprise. First of all, it's

3 impossible to believe that anything would have been different if the

4 constitution hadn't changed. How that -- how that change in the

5 constitution makes any difference factually to any of the events that

6 followed is completely not established.

7 But, secondly, even if there is that change in the constitution,

8 which there was, it doesn't change the fact that -- it doesn't provide a

9 defence or an excuse or a reason to embark -- for Serb leaders to embark

10 on a joint criminal enterprise on an illegal common purpose to forcibly

11 remove Croats in order to create a Serb-dominated state.

12 And I would note that long before the Croatian constitution was

13 adopted in December of 1990, the Serbs had -- Serb leaders, including Mr.

14 Martic, had rejected Croatian authority in the SAO Krajina. And with

15 respect to various attacks that occurred by the Croatian side after

16 starting in 1992, that Defence counsel suggests is proof of the plan on

17 the Croatian side. Well, those obviously post-date many of the crimes

18 alleged in the indictment; and moreover, they are not a defence to

19 anything in the indictment.

20 The Serb people, the Defence counsel said again and again, were as

21 a result of the constitution being changed, were precluded from saying

22 that they wanted to stay with Yugoslavia, precluded from having a voice,

23 but that's just not true. The constitution was adopted in December of

24 1990, but in May of 1991 -- no, I'm sorry -- yes, in May of 1991 the Serbs

25 had a referendum, in which they stated that they wanted to stay with

Page 11406

1 Yugoslavia. They had a referendum, and that referendum was adopted by a

2 large majority of the vote. So they did have the opportunity to express

3 their views, and Mr. Martic himself spoke about this in Exhibit 973. He

4 made reference to this expression on the part of the Serb people. So they

5 did, in fact, have that opportunity.

6 Now, finally, there Defence counsel cited several times to

7 Exhibit, I think it's 236, if I can just have a moment. No, I'm sorry,

8 it's Exhibit 965. And this is on the theme of the role of the

9 international community, and I'm not going to say anything about that

10 except to this point; that a cite to this meeting with Mr. Thornberry and

11 things that Mr. Thornberry allegedly said. And the meeting, I believe, is

12 in -- I believe it's in 1993, but it's clear on the minutes. The first

13 point to make is that the minutes are not official minutes. These are

14 minutes that were prepared by the Serb side, and they were not

15 authenticated by anybody at the trial. Nobody who was present at the

16 meeting could say that the minutes accurately reflected what Mr.

17 Thornberry or anybody else said at that meeting. So I think that has to

18 be kept in mind when those minutes are read.

19 The second thing is that Mr. Martic is said to have said the

20 following, and it's interesting and confirms, in our view, the thesis that

21 he was pursuing the common purpose of the joint criminal enterprise.

22 He says: "It should be explained that joint life of Croats and

23 Serbs in one state is impossible because of genocide politics of Croatia.

24 We want to separate in two states." "We want to separate" and "joint

25 life" is impossible. That was the goal that was being pursued in 1990 and

Page 11407

1 1991, 1992, 1993, and thereafter. A separate state. Croats will have our

2 state, we'll have our state, and the plan included, the common purpose

3 included the forcible removal of Croats from the Serb state. In our view,

4 this has been proven beyond a reasonable doubt and we would ask the Trial

5 Chamber to convict Mr. Martic of the counts in the indictment.

6 JUDGE MOLOTO: Thank you very much, Mr. Whiting. Is that it?

7 We'll take a break and come back at half past 12.00. Court adjourned.

8 --- Recess taken at 12.06 p.m.

9 --- On resuming at 12.31 p.m.

10 JUDGE MOLOTO: Mr. Milovancevic, the Bench invites you, if you so

11 wish, to come in rejoinder.

12 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

13 Mr. Perovic will deal with two topics initially, and then I will

14 take over from him.

15 JUDGE MOLOTO: Thank you very much.

16 Mr. Perovic.

17 MR. PEROVIC: [Microphone not activated]

18 THE INTERPRETER: Microphone, please.

19 MR. PEROVIC: [Interpretation] Thank you, Your Honours. I will say

20 right at the outset something about myself. I am a kind of person who can

21 only be impressed by facts. I worked for many years as a judge and as a

22 lawyer, and I tend to be impressed only by the facts, nothing else, be it

23 in this trial or any other. I'm now referring to the armed rebellion in

24 Croatia against the central government, the then-SFRY, which was in

25 existence. This is a topic that my learned friend, Mr. Whiting, started

Page 11408

1 his speech today. The facts are merciless, and one cannot deny them.

2 In 1990 and 1991, the then-authorities of Croatia conducted

3 preparations; and then in 1991, they implemented an armed rebellion

4 against the central government in the then-existing SFRY.

5 JUDGE MOLOTO: Slow down. Thank you very much.

6 MR. PEROVIC: [Interpretation] Thank you for your warning.

7 In the course of 1990, the then-authorities in power in Croatia,

8 the HDZ, conducted preparations for what was to follow in 1991. These

9 preparations were crowned, if I may say so, by the new constitution of

10 Croatia in December of 1990. This is the document which denied the Serbs,

11 who had had the status of a constituent nation up to that time, the right

12 to self-determination; that is to say, to decide on their own fate and to

13 decide whether they were going to continue living in the then-state as it

14 existed or whether they were going to continue their life in some newly

15 created Croatian state. This constitution from December 1990 denied the

16 Serbs that right, stripped them of that right.

17 In 1991, starting with the spring of 1991 until the end of that

18 year, the Croatian authorities in power then carried out an armed

19 rebellion against their own state, which at that time was the only

20 internationally recognised subject in that territory; namely, the SFRY.

21 I'm not going to point to all of the evidence adduced to prove that. I

22 think that this is not contentious.

23 What is contentious, though, in my sincere view, is the position

24 of the Prosecution; that in this particular case, this was about the

25 disintegration of a state. I have to say that this is the first time that

Page 11409

1 I come across such a view; namely, that a state can disintegrate. This is

2 a forensic or a medical term. A corpse can't disintegrate. An organic

3 substance can decompose or disintegrate, but I have never heard this term

4 applied to a state. Thus, the SFRY did not disintegrate. It was broken

5 apart as a result of internal factors acting in concert with the

6 international community. This is what it was about.

7 The constitution from December 1990 has been mentioned a lot here;

8 however, I have to say that so far we have not heard why would the right

9 of Croatians, who were a constituent nation up to that time be superior,

10 be more significant than the right of the Serbs, the other constituent

11 nation in Croatia, to remain in the state that existed until that time. I

12 am convinced - and there are many pieces of evidence to support that -

13 that these two rights were equal and should have been accorded equal

14 weight.

15 The conflict in 1991 broke out precisely because -- I would even

16 say that that constitution from December of 1990 was the cause of the

17 armed conflicts which erupted in 1991, because the Serbs realised that the

18 fact that they were stripped of the status of constituent nation meant

19 that they were stripped of the right to decide on their own fate as a

20 nation. This is the only proper view of the matter.

21 So in 1991, we had an armed putsch of the then-Croatian

22 authorities of the central government, and this putsch or coup was aimed

23 at violent secession; unlawful seceding of one federal unit from the

24 federal state. This is not contentious; it's supported by facts.

25 Arguments to the effect that the state disintegrated because it was sick,

Page 11410

1 because it was running fever, or had other medical conditions fall into

2 the domain of medicine. They cannot be applied to a state.

3 Yugoslavia, or SFRY, existed all the way up until the spring of

4 1992. No other interpretation is possible. In January of 1992, this new

5 creation, the Republic of Croatia, was recognised by some states of

6 European Union, which is what Mr. Milovancevic spoke of, but that doesn't

7 mean that automatically, by the mere fact that it was recognised by some

8 members of the EU, this newly created country became an international

9 subject, no. It acquired that status several months later when it was

10 admitted as a member into the United Nations; that is to say, all the way

11 up until spring of 1992 in the territory of the former Yugoslavia accepted

12 only one international subject, which was the SFRY. What Croatian

13 authorities did during that relevant period of time in 1991 is nothing but

14 an armed rebellion in relation to the central federal state, the only

15 existing state, and that is the only possible view of the matter.

16 Now something else in relation to this. I can comprehend the

17 dilemmas faced by my learned friend, Mr. Whiting, as to the causes that

18 led to the Serbs having the same constitutional status as Croats, even

19 though Serbs were a minority numerically. Mr. Whiting probably doesn't

20 know this, but I know this because I was born in that state 60 years ago

21 and I spent most of my life there. Such a constitutional solution was

22 dictated precisely by the events from World War II and the genocide which

23 is beyond dispute, the genocide against the Serbian nation committed by

24 the independent state of Croatia, the Quisling NDH, as it was known.

25 In order to avoid any possibility of this being repeated in 1945

Page 11411

1 and later on, Croatian constitution was drafted in such a way as to grant

2 the status of constituent nation to Serbs, just as it was granted to

3 Croats, even though Croats had the majority in Croatia. Such a

4 constitutional solution guaranteed to the Serbs that what happened between

5 1941 and 1945 would never be repeated again.

6 By insisting on exercising their right to self-determination, the

7 Serbs did not disturb the legitimate request of Croats to have their own

8 independent state. That is a legitimate right of the Croats, just as it

9 was a legitimate right of the other constituent nation in Croatia, namely

10 Serbs, to opt for something else and to choose to live in Yugoslavia as it

11 existed up until that time. The right of Serbs were not less significant

12 than the right of Croats.

13 JUDGE MOLOTO: Mr. Perovic, would you agree that Mr. Martic is

14 actually not being charged or indicted for insisting on having the right

15 to self-determination? Do you accept that?

16 MR. PEROVIC: [Interpretation] Not fully, Your Honour. I believe

17 that the violent secession of Croatia is the mother cause of all other

18 events, everything else that transpired in the following five to six

19 years. This is what I'm speaking about. Had there been no attempt to

20 violently secede from Croatia on the part of Croatia, there would have

21 been no Milan Martic, there would have been no RSK, and there most likely

22 would have been no case; this case that we have been trying for over a

23 year. So the original cause of everything that happened in Croatia - and

24 I mean the conflict between Serbs and Croats - are the acts of Croatian

25 authorities and their attempt to use all means, including violent

Page 11412

1 secession in order to break away from Yugoslavia.

2 JUDGE MOLOTO: Let me put the question slightly differently. Do I

3 understand you to be saying because of the actions of Croatia, Mr. Martic

4 and the RSK did the things that Mr. Martic today stands accused of? In

5 other words, are you saying because of the violent actions of Croatia, Mr.

6 Martic and the RSK was therefore justified in doing the things that are

7 alleged in the indictment?

8 MR. PEROVIC: [Interpretation] That is not my opinion, of course.

9 I do not think that Mr. Martic or anybody else from the then-SAO Krajina,

10 and later on RSK, had a right to commit crimes only because of what

11 Croatian authorities did. Now, as to whether they did commit crimes, and

12 if so to which extent, this is something this Trial Chamber will have to

13 rule upon.

14 I do not believe that Mr. Martic is guilty on any count of the

15 indictment, and I would add to this that his acts under the situations

16 that were described to this Trial Chamber as well as the acts of the

17 people of RSK could only be described as a reaction, that they were forced

18 to act that way. This is what I wanted to say in response to the

19 Prosecutor, and now something about the evidence of Milan Babic.

20 It is beyond dispute that Milan Babic in September of 1991 in his

21 letter to the then-conference on Yugoslavia in The Hague wrote what he

22 wrote. All of us had occasion to hear or read what he wrote at the time.

23 Testifying here, he spoke of something that is quite contradictory,

24 absolutely contradictory to what he had written at the time. I'm drawing

25 the attention of the Court to the fact that the letter, which was sent to

Page 11413

1 the conference in The Hague in September of 1991, was written by Milan

2 Babic as a free man, and not just any man. He was a man who held a

3 certain post, who had a certain amount of authority.

4 Then later on, subsequently, he claimed things that are absolutely

5 contradictory to the content of this letter, and he did that after he had

6 reached his plea agreement with the Prosecution. These things need to be

7 taken into account. First of all, the circumstances under which he wrote

8 a letter when he did it as a free man; and then the second set of

9 circumstances, where he found himself, whether voluntarily or not, when he

10 entered into plea agreement with the Prosecution and when he definitely

11 expected to get something in return for his testimony. What were his

12 expectations? What was promised to him is something that we do not know,

13 and he is no longer here to tell us about that.

14 JUDGE MOLOTO: In your submission, what are those contradictions,

15 the contradictions between the content of the letter and what he said

16 after his plea bargain. If you can just remind the Bench about those so

17 we can bear them in mind.

18 MR. PEROVIC: [Interpretation] Naturally, Your Honour. In the

19 letter sent in September 1991 to the conference in The Hague, Milan Babic

20 explicitly speaks of the status of Serbs as minority in Croatia. He says

21 that the Serbs in Croatia faced a very complex conditions and that the

22 Croat authorities demonstrated violence against them. I don't want to

23 repeat the entire content of the letter, but when he came here to testify

24 he spoke in different terms. He accepted that the Serbs and he, as one of

25 the leaders in the RSK, as well as other people holding offices in the RSK

Page 11414

1 spread some irrational fear among the Serbs in order to turn them against

2 Croatia and Croats.

3 He spoke about this as well, which is completely opposite of his

4 view expressed in the letter. In the letter, he said that it was the

5 violence used by current Croat authorities that prompted Serbs to defend

6 themselves, to take acts in order to ensure legitimate defence. All the

7 differences between the letter and his testimony will -- are something

8 that the Trial Chamber will be able to discern once they study both.

9 JUDGE MOLOTO: You bring me back to the question I asked you a few

10 minutes ago. You say Mr. Babic said in the letter that what the people in

11 the RSK were doing was a reaction to the violence. Let me just. You

12 necessarily said that the violence used by current Croat authorities that

13 prompted Serbs to defend themselves.

14 I asked you a few minutes ago: Are you saying that the Serbs did

15 what they did as alleged in the indictment because of the violence of the

16 Croats? You said no. Now you're saying this is the position of Babic as

17 a leader, as a free man, and that is what he was trying to put to The

18 Hague Conference.

19 Now I'm asking you: Is that the position indeed, that in fact,

20 because of the violence that was created, that was started by the Croats,

21 the Serbs in the RSK did what is alleged in the indictment in

22 self-defence, as you say here? You said they were defending themselves.

23 MR. PEROVIC: [Interpretation] I am now able to understand your

24 question better. I will try to answer it. I never ruled out the

25 possibility that crimes were committed by the Serb side, but I am quite

Page 11415

1 sure - and this is what I stated right at the beginning of my statement -

2 that no crimes or no acts related to the RSK would have occurred had there

3 not been a violent secession on the part of Croatia. And, now, in this

4 armed conflict that broke out between Serbs and Croats, there certainly

5 were crimes committed by both sides, and I'm not trying to justify any

6 side. But what is under this big question mark here is the responsibility

7 of Mr. Martic himself, his responsibility for any of those crimes. I fail

8 to see this responsibility, and the Trial Chamber of course, having

9 considered the evidence in its entirety, will rule on this matter.

10 When I spoke about the contradictions present in Mr. Babic's acts,

11 it is my view that the Trial Chamber will be able to give appropriate

12 weight to this evidence in light of these circumstances that I have just

13 spoken about. And just two more sentences. When it comes to this witness

14 and his evidence, he committed suicide during the -- during his own

15 testimony. And in my view - and one doesn't need to be a medical expert;

16 this is something that is quite obvious - he evinced a high degree of

17 mental disturbance. I think that a person who commits suicide cannot be

18 considered to be stable, a well-balanced person. And when this is the

19 case, I think then logic dictates us to ask whether his testimony should

20 be considered as valid if it was given in such a state, such a mental

21 state. Let me add here --

22 JUDGE MOLOTO: Before you add, I'm sorry to do this to you. I

23 just want to be sure that we use consistent terms. The translation says

24 you say, "He had a degree of mental disturbance." Did you say "mental" or

25 did you say "emotional"? There was a correction earlier today about the

Page 11416

1 two statements. Are you saying mental disturbance or are you saying

2 emotional disturbance?

3 MR. PEROVIC: [Interpretation] Let me say, I used the term

4 "unstable," because I am a layperson when it comes to medical matters.

5 But it seems to me that these symptoms of mental instability could be

6 observed even by laypersons. From what I studied in forensic medicine,

7 most suicides are mentally unstable. The fact that he committed suicide

8 in the course of giving evidence gives me the right to think that he was

9 mentally unstable when he gave this evidence in -- before this Court. And

10 let me now say just one more thing.

11 It was no -- through no fault of the Defence, because it was a

12 force majeure. Through the suicide of this witness, we were put in a

13 position, whether you want to admit it or not, into a position where we

14 are, in fact, prejudiced. It's a prejudicial position for us, and I now

15 don't want to make any objections or anything. I merely want to state

16 that this has been to our detriment. This is what I wanted to say about

17 this topic, and my colleague Mr. Milovancevic will deal with some other

18 issues.

19 JUDGE MOLOTO: But before you sit down, I asked you whether you

20 used the term "emotional" or "mental." In trying to answer my question,

21 the word "mental" in the interpretation was used several times. I ask you

22 again, and I understand you will say that you are lay, and I understand

23 that you are lay in medical issues. All I want to know is: Are you using

24 the word "mental disturbance" or are you using the word "emotional

25 disturbance?"

Page 11417

1 I'm asking this simply because there was a correction earlier

2 today, and I want to know what the position of the Defence is with respect

3 to the state of Mr. Babic. Is it the Defence's position that they allege

4 he was "mentally disturbed," or it the Defence's position that they accept

5 that he was "emotionally disturbed?" Accepting that we are all lay, we

6 haven't got any medical evidence to tell us what his status was. I accept

7 that, but what are you is speculating?. Are you speculating on "mental

8 disturbance" or "emotional disturbance?" Just pick one.

9 MR. PEROVIC: [Interpretation] Since you now grant me the right to

10 speculate, I will now tell you that it is my belief, based on my human,

11 professional experience that this was mental instability. So this is my

12 speculation. I'm not a psychiatrist.

13 JUDGE MOLOTO: Thank you very much. Now, I didn't give you the

14 right to speculate. You speculated before I said that. If you look at

15 page 74, line 1, you said: "The fact that he committed suicide in the

16 course of giving evidence gives me the right to think." Now, what you

17 think is but your opinion, so it's speculation, even before I used the

18 word speculation. You grabbed that right before I gave it to you, if I

19 did give it to you at all. And I don't think I did. Thank you very much.

20 MR. PEROVIC: [Interpretation] I agree, but that's why I used a

21 term that is quite general, and it's a lay term I would say. I did not go

22 into any details.

23 JUDGE MOLOTO: Thank you, Mr. Perovic.

24 Mr. Milovancevic.

25 MR. PEROVIC: [Interpretation] Thank you.

Page 11418

1 JUDGE NOSWORTHY: Mr. Perovic, before you sit down. On the point

2 you have just dealt with, the issue. Now, what you are saying at the end

3 of the day is that the evidence of Milan Babic is unreliable. It ought

4 not to be relied upon. And a conviction on that quality evidence, given

5 the circumstances of his death, would be unsafe. That's a rough

6 encapsulation, but you will remember there was a response from -- or,

7 rather, a submission from the OTP that there was corroborating evidence.

8 This was said in answer to Judge Moloto, and it was stressed again at

9 another point.

10 And in answer the evidence of MM-079 and MM-03 was referred to as

11 constituting corroborating alternative evidence or additional evidence,

12 which the Court could safely rely on as in founding a conviction. So is

13 there anything touching and concerning those witnesses that would prevent

14 the Court from being able to safely rely on the evidence of those

15 witnesses?

16 MR. PEROVIC: [Interpretation] Your Honour, I question the

17 reliability of Mr. Babic's testimony from two points of view. First of

18 all, the fact that he committed suicide in the course of giving evidence;

19 and second, the contradiction between his previous views and the views he

20 expressed here at trial. As regards witnesses that allegedly, as the

21 Prosecutor would have it, confirmed the -- what Mr. Babic had testified, I

22 would not go into their testimony in detail. My learned friend, Mr.

23 Milovancevic will speak about them. These are witnesses MM-03 and MM-079.

24 I have to say that I do not believe that they substantially corroborate

25 what Mr. Babic said in court. In particular, this goes for witness

Page 11419

1 MM-079. As regards witness MM-03, my colleague Mr. Milovancevic

2 disqualified for all intents and purposes his testimony, but he will say

3 something more about that in due course.


5 JUDGE MOLOTO: Thank you, Mr. Perovic.

6 Mr. Milovancevic.

7 MR. PEROVIC: [Interpretation] Thank you.

8 MR. MILOVANCEVIC: [Interpretation] Thank you, Your Honour.

9 In the argument in rebuttal, my learned friend from the

10 Prosecution stated that the main reason why the crimes had been committed

11 was the vision of a separate state, that was an aspiration on the part of

12 the Serb people, and that the establishment of the SAO Krajina and the RSK

13 was not in accordance with the Croatian constitution, that nothing was

14 regular in Croatia, and that this is why crimes were committed. The

15 Defence believes that the evidence abused leads to a contrary conclusion.

16 Exhibit 237, a transcript between General -- the transcript of a

17 conversation between General Spegelj, the Defence Minister, and the Police

18 Minister -- I have to apologise --

19 JUDGE MOLOTO: Mr. Milovancevic, I'm sorry to do this. You're

20 interpreted as saying that the Prosecution said that nothing was regular

21 in Croatia. Correct me if I'm wrong, I thought he said there was nothing

22 regular in the SAO Krajina or RSK.

23 MR. MILOVANCEVIC: [Interpretation] Thank you for your correction,

24 Your Honour. I wanted to emphasise this sentence. Yes, he said nothing

25 was regular in Krajina in relation to Croatia. I may have misspoken. I

Page 11420

1 was imprecise. Thank you very much.

2 JUDGE HOEPFEL: Excuse me, Mr. Milovancevic. In order to follow

3 you clearly, to what points are you now reacting, responding, at what

4 point of the rebuttal?

5 MR. MILOVANCEVIC: [Interpretation] The very beginning rebuttal

6 where he says that the vision of a separate state for the Serbs was

7 created a long time before 1991 and all that the Serbs had done in order

8 to realise this goal was irregular. This is the gist of what my learned

9 colleague said. In this respect, the Defence would like to stress that

10 the explicit provisions in the constitution of Croatia and Yugoslavia

11 provided for the possibility of municipalities to be created. And the

12 attempts on the part of the Croatian government after the 1990 elections

13 to strip that right to self-organisation from the municipalities was the

14 cause for the rally in Serb.

15 We think that the -- and the contention that the aspirations of

16 the Serbs, too, actually create their own state before 1990 turns the

17 whole case on its head. Exhibit 237 is a transcript of a conversation

18 between Spegelj and Boljkovac, the Defence and the Interior Ministers

19 respectively. This is October 1990, well before any self-organisation on

20 part of the Serbs, where he says, We will solve the Knin problem by

21 butchering them all. This is what Spegelj says, and Boljkovac responds,

22 The Knin problem will be solved by making it disappear. We will use our

23 weapons. Nothing will be as it was before. Croats should know that we

24 will create a state regardless of the cost.

25 These are the words that are recorded in an exhibit admitted by

Page 11421

1 this Court, and the question is how the Serbs, the Serb population, should

2 react to such intentions expressed by the highest echelons of the Croatian

3 government. Your Honours, it was not necessary for them to hear those

4 specific words at the time. Twenty-one Defence witnesses confirmed what

5 had been happening on the ground, and Exhibits 1013 and 1014, originating

6 from the Amnesty International about the campaign of terror,

7 disappearance, murders, widespread campaign all over the territory of

8 Croatia, targeting in particular those Serbs who refused to accept

9 Croatia's independence.

10 At the very beginning of his closing argument, my colleague from

11 the Prosecution quoted at least five exhibits, quoting verbatim Mr.

12 Martic's words, and this is something that I'm not challenging, where Mr.

13 Martic says: "And we will defend our homes and hearths." And when the

14 Vance Plan and its acceptance are discussed, Mr. Martic said we will

15 defend our homes, and Mr. Martic never said that the defence of one's own

16 territory or of one's own homes also entails the destruction of Croats.

17 As regards a comment made by my colleague from the Prosecution

18 that the JNA, the TO, and the police cooperated or acted in concert - and

19 the Defence's view that they were loyal to the federal state - Prosecution

20 witness Colonel Maksic, Radislav Maksic explained in quite some detail the

21 relative jurisdictions of the federal state of the JNA, that this was an

22 armed rebellion, and that the territorial defence was under the JNA in the

23 chain of command, that the police was duty-bound to take part in those

24 actions, and witness Maksic explained that the army could not have ordered

25 the police to take part. But it had to follow the law. It had to go to

Page 11422

1 the Ministry of the Interior, ask for units to be attached to them, and

2 meetings followed, and then it was decided for a police unit to be allowed

3 to take part in certain military operations.

4 It is quite interesting that for the Prosecutor it is enough to

5 simply state that in some locations they were together, the Ministry of

6 Defence; that is to say, the JNA, TO, and police, regardless of who

7 composed those forces and why. The witness of the Prosecution said that

8 in the operations of the JNA in 1991, there were cases of resubordination

9 of all units to the units of the JNA; that is to say, all units of the TO

10 and police were subordinated to the commander of the JNA.

11 Witness Maksic clearly explained that the commander of the JNA

12 unit was responsible for compliance with the law, for every act, for

13 compliance with the discipline rules; and in case, if there were any

14 violations or crimes committed, the commander of the unit to which police

15 or TO were resubordinated was in charge of initiating proceedings. When

16 asked by the Prosecutor whether the commander of the unit from which these

17 people had come, say Territorial Defence or police, who were then

18 resubordinated to the superior JNA unit, so when asked whether the police

19 commander or TO commander could prosecute their own members who under the

20 JNA command had committed crimes or allegedly committed crimes, witness

21 Maksic said that it was impossible under the law and that it was only the

22 commander of the unit in charge of the operation that could set this in

23 motion, the criminal proceedings.

24 We are not emphasising this in order to shift the blame to

25 somebody else, no. We are simply pointing your attention to the evidence

Page 11423

1 of, say, General Djukic, who said that only in the 9th Corps in the course

2 of several months, 332 criminal complaints were filed against those who

3 committed crimes. So I'm just trying to say that this was done.

4 JUDGE MOLOTO: Mr. Milovancevic, but is that relevant for purposes

5 of superior responsibility of Mr. Martic? Surely, if you accept that

6 certain units which belonged to the department of Mr. Martic were

7 subordinated to the JNA, the question is not whether the leader of those

8 units could punish criminals from that unit when the JNA commander was not

9 doing so. I understand, and in fact the JNA commander is not even here to

10 be charged. Surely, the head of that unit, as Mr. Martic, when these

11 units come back, he should be able to discipline them. If he gets the

12 report from the heads of those units that these are the criminal acts that

13 were committed by members of our unit under the command of the JNA, and

14 this is reprehensible, Mr. Martic, can you do something about them. Was

15 that done? You understand the distinction?

16 MR. MILOVANCEVIC: [Interpretation] I understand fully. Thank you

17 for your question, Your Honour.

18 First of all, a remark. Mr. Martic never served as commander of

19 any unit. He was the Minister of the Interior, and he exercised his

20 authority in accordance with the law. He had no unit under his command;

21 that's one thing. The other thing is that witness Maksic.

22 JUDGE MOLOTO: Mr. Milovancevic, that was not--

23 MR. MILOVANCEVIC: [Interpretation] I apologise.

24 JUDGE MOLOTO: Sorry, that was not my point. I understand that he

25 was; that's why I'm saying there is no general here. But we're taking the

Page 11424

1 highest political authority, the highest political authority over the

2 general himself, over the commander of the TO and the police units. We

3 say: Here is the highest authority. The commanders on the ground, I can

4 understand, they are subordinated to the JNA, but if their own members

5 misbehave and the JNA does nothing to punish them, isn't it incumbent on

6 them to pass the information on to Mr. Martic and say: Mr. Martic, this

7 is what our units did from the police, punish them.

8 MR. MILOVANCEVIC: [Interpretation] Thank you for your question,

9 Your Honour. I understood you.

10 Witness Maksic, who testified for the Prosecution, explained

11 clearly that a unit which participates in combat is under the command of

12 the most senior JNA officer; if they comprise both the JNA, the TO, and

13 the police. And we showed documents, exhibits here, to the effect that

14 the commander of that unit is responsible for anything done by the members

15 who serve under him; be they from police, TO, or JNA. Witness Maksic, who

16 is an expert for the TO and he is an officer who hails from the General

17 Staff, said it is only this JNA, to whom they were all subordinated, who

18 can initiate criminal proceedings against these perpetrators.

19 Now I'm coming to the answer of your question. He said, for

20 example, that the commander of a unit, say commander of a police station

21 from Benkovac, that he alone cannot criminally prosecute that person, that

22 this is under the jurisdiction of the military court because the crime was

23 committed in the course of an armed conflict and falls under the

24 jurisdiction of the army. Now, I come to the rest of your question.

25 Naturally, Mr. Martic or commander or chief of any police station

Page 11425

1 under whose command a JNA member committed a crime was duty-bound to

2 criminally prosecute that person, but only if he was informed about the

3 crime committed. What evidence did the Prosecution adduce to prove that

4 that was the case? We have no documents to prove this. Witness, who

5 testified here, who was the Justice Minister and President of the Court,

6 told us that, yes, perpetrators were criminally prosecuted. And we saw

7 court registry books showing how many people were convicted for murders.

8 We dealt with a lot of such cases when this witness testified, MM-90. If

9 necessary, I can tell you what exhibit number it is, those court registry

10 books.

11 So my position is that every citizen, every citizen of Yugoslavia,

12 upon learning of a crime that was committed under the law and the

13 constitution has a duty to report that and competent organs are duty-bound

14 to prosecute. I am emphasising this now because of another fact, which is

15 that the Prosecution believes by applying the joint criminal enterprise

16 principle that Mr. Martic is responsible for all of those crimes,

17 regardless of whether he knew about them or could have known about them or

18 could have foreseen that that was going to happen or there could have been

19 a logical consequence of an armed conflict only because he was an alleged

20 participant in the joint criminal enterprise. It is our position that

21 there is no evidence to support this.

22 Mr. Prosecutor says, when speaking of this, that Martic was in

23 favour of cooperation with Mr. Milosevic, praised cooperation with Mr.

24 Milosevic; whereas, Mr. Kirudja said that Mr. Milosevic, as the alleged

25 leader of the JCE, never wanted to have Krajina in Serbia. He wanted

Page 11426

1 Krajina to remain within the borders of Croatia, and the only thing he

2 wanted was to ensure that the Serbs had all adequate rights in Croatia.

3 Speaking of Milosevic, Mr. Kirudja also said that unlike Tudjman

4 he was a person without any kind of ethnic prejudice, that he boasted and

5 bragged about the fact that his state was a multi-ethnic one. This is

6 what the Prosecutor proved through their own witness, Mr. Kirudja. What

7 is especially important to amplify is that Mr. Kirudja corroborated this

8 with a document, showing that the relationship between Mr. Milosevic and

9 Mr. Martic was not that of two criminals participating in joint criminal

10 enterprise, but quite the opposite, that this was a relationship between

11 two serious men who cooperated in complex and difficult times, abiding by

12 the international law and implementing the decisions of the United

13 Nations. Exhibit 764 is a document of Mr. Kirudja, dated the 10th of

14 February, 1994.

15 Mr. Kirudja confirmed in the courtroom - and I'm reminding you of

16 that now - that in this document it is stated in relation to the

17 limitations of movement of civilian police and international

18 organisations, he said that this question arose in 1994. Because in the

19 elections in 1994 when Mr. Martic was elected, it was Milan Babic who won

20 the most seats in the parliament, leading the SDS and the radical party.

21 And in this document, Mr. Kirudja writes that the plan of the radicals,

22 who were led by Leskovac in Krajina and Mr. Babic, was to prevent the

23 delivery of humanitarian aid, block the roads, and then make it seem that

24 the UN was not supporting Serbs so that they could attack UNPROFOR and

25 kick them out of Krajina; and then Mr. Kirudja says that this is precisely

Page 11427

1 why Milosevic supported Martic, in order to prevent this from happening,

2 these steps from being taken against the UN.

3 It says in the letter verbatim: "It seems that the opposition,

4 which is Babic and the radicals, wish to stir up the population in order

5 to reach their political goal which is a forceful removal of soldiers from

6 UNPA zones." And it is because of this that Milosevic supported Martic

7 and not Babic in a recent campaign. The question is now whether Martic

8 will be able to hold power or not. This is a very valuable document

9 brought here by the Prosecution witness, a representative of the UN, that

10 speaks of quite a different nature of the relationship between Milosevic

11 and Martic. This is not a relationship that exists between two criminals,

12 and it should be easily seen from this document. It should be clearly

13 visible to the Prosecution.

14 The Prosecutor says that Martic abided by the orders of the JNA

15 and that that somehow proves the JCE. This is why, Your Honours, we keep

16 drawing your attention to the armed rebellion. The JNA was a regular

17 armed force of the federal government; and as witness Maksic said, Every

18 single citizen was duty-bound to abide and comply with the regulations of

19 the federal government and the federal armed force. You heard from many

20 witnesses here; Defence witnesses who are educated people, decent people,

21 who went through grueling cross-examination and were not -- were not

22 groomed for testimony here because you would have easily seen that.

23 And all of them told you that Mr. Martic was a man who never hated

24 anyone, who did everything in his power to protect the population. This

25 is also stated in a UN report 897, Exhibit 897, in which the UN states

Page 11428

1 that on the 2nd of February, 1993, during the Maslenica operation, the

2 Serb refugees, who survived and who were expelled, who had lost their

3 loved ones, who were robbed, and so on, came to Knin and that they were

4 enraged. They were armed and were trying to take their revenge against

5 Croatians.

6 This document of UNPROFOR says that the Serbian police, Martic's

7 police, housed these people in a safe haven zone in a house that one of

8 the witnesses here described. They, UNCIVPOL, said that this was done in

9 a fair way and that the Croats did not complain against this; and then the

10 Prosecution brought witnesses here MM-03 and MM-78, who, contrary to any

11 logic, say that, Yes, they were safe there. Yes they were protected, but

12 they were sent there in order to be expelled. This is unbelievable but

13 true.

14 JUDGE MOLOTO: Which point in rebuttal are you addressing, Mr.

15 Milovancevic?

16 MR. MILOVANCEVIC: [Interpretation] At the very beginning the topic

17 of a vision of separate state for Serbs when the Prosecution said that

18 nothing was regular on the Serb side in Croatia, and then how Mr. Martic

19 spoke about the relationship between Mr. Martic and the JNA. I'm now

20 showing that everything done by Mr. Martic was aimed at protecting the

21 entire population.

22 Another topic was addressed by my learned friend, which is the

23 issue of armed conflict. I'm now quoting the judgement from the Galic

24 case, where it says that there is no difference between a civil war and

25 armed rebellion. But what has it got to do with us, Your Honours? We

Page 11429

1 have to make a distinction if there is one, and there is. For the

2 Prosecutor, of course, it doesn't matter whether it's a civil war or an

3 armed rebellion. Perhaps it is their position, but the international law

4 says, the Geneva Conventions say that an armed rebellion is outside of the

5 jurisdiction of international law. And we could see until which time the

6 sovereign Yugoslavia existed, until May of 1992.

7 Mr. Prosecutor speaks of an armed conflict, and he says it began

8 on the 17th of August, 1990, as a document from the government of Krajina

9 says. It is not up to the government of Krajina to judge on when the

10 conflict broke out. Paragraph 18 says, "During the entire time to which

11 the indictment pertains, there existed a state of armed conflict in

12 Croatia and Bosnia;" that means that the entire time in the area protected

13 by the UN there was a state of armed conflict from mid-1992 until 1995. I

14 wonder now how come this was tolerated by the United Nations if this was

15 true.

16 There were only acts of aggression. We enumerated five of them,

17 five acts of aggression of Croatia against the UN safe havens, and Croatia

18 did that as an internationally recognised state. It was an

19 internationally recognised state from the 21st of May, 1992; and already

20 in June of 1992, it attacked a UN safe haven at Miljevac plateau and it

21 goes all the way to the massacre in Operation Storm. These were acts of

22 aggression of an international subject against the United Nations, and

23 what kind of punishment followed for this? None, whatsoever.

24 Another thing. The time when the conflict broke out in Croatia

25 and the time when the conflict broke out in Yugoslavia, these times are

Page 11430

1 different. The rebellion in Croatia begins when the population in Croatia

2 are armed illegally; that's in mid-1990 the preparations began and October

3 1993 it begins, document 1005. It's a letter by 142 members of the Zadar

4 Secretariat of the Interior. It indicates that from mid-1990 the Croatian

5 Minister of the Interior has been taking away the weapons from the reserve

6 police and the police officers in the police stations only to distribute

7 them illegally to arm the population of only one ethnic background, Croat

8 ethnic background, in Zadar, Benkovac, and Obrovac municipalities. These

9 when the organisation and the preparations for the armed rebellion began.

10 The armed rebellion begins then and it ends when Croatia is

11 admitted into the United Nations, so that's May 1992; in other words, it

12 ends when the JNA withdrew from parts of its territory in accordance with

13 the demands set to it in the Vance Plan by the United Nations. After

14 that, there is no armed conflict. There is only aggression aimed at the

15 United Nations, five such acts of aggression, including Operation Flash in

16 Western Slavonia. And the United Nations never responded to it. They did

17 not prevent it, they did not stop it, they did not push the troops back,

18 force the troops out.

19 The territories were occupied, and these territories had never

20 been under the control of the Croatian government ever since the inception

21 of the Croatian independent state. These were acts of aggression against

22 UN protected areas. These were also acts that violated international

23 agreements, in particular with Operation Storm. Because under the Zagreb

24 Agreement signed on the 29th of March, 1994, the Republic of Serbian

25 Krajina was recognised as a subject that could enter into such agreements.

Page 11431

1 So from May 1992 until Operation Storm, until the very end, there

2 were only acts of aggression against the UN protected areas, no armed

3 conflict, and 700 lesser attacks in those three years, as described by our

4 witnesses.

5 As regards Bosnia and Herzegovina, it would be interesting to hear

6 from the Prosecutor whether he believes that the armed conflict broke out

7 then at the same time as it did in Croatia or whether it did break out at

8 some other time and what happened there. Bosnia and Herzegovina, as a

9 secessionist state, was recognised on the 6th of April, 1992, again

10 contrary to the recommendations of the Security Council. And after that,

11 a civil war breaks out in the territory of Bosnia and Herzegovina. So

12 this is very important. It is very important to characterise a conflict

13 in the areas covered by the indictment.

14 So in Bosnia and Herzegovina, there was a civil war in which you

15 had the conflict of three sides; a Croat, a Serb, Bosnian. And we perhaps

16 put a thorn in your side during the testimony, for instance, of Mr.

17 Loncar, expert witness, Prosecution expert witness, who showed some

18 images. But I wanted to show you some images. I wanted to show you when

19 you asked me why I'm showing this to you, about the nature of this

20 conflict. This was a bloody civil war there, and this is what Defence

21 witness Barriot spoke about when he said that Alija Izetbegovic's troops

22 in 1994 attacked the Cazin Krajina, their own territory, their own Muslim

23 population, simply because they were in favour of a more peaceful

24 alternative. They were opposed to Alija Izetbegovic's jihad.

25 Witness Barriot said that 40.000 Muslims were expelled by Alija

Page 11432

1 Izetbegovic's troops to the Republic of Serbian Krajina, and the

2 government and Martic placed at their disposals all their supplies that

3 they had, small as they were. So this is the civil war.

4 As far as Defence is concerned, the nature of the armed conflict

5 is important. The armed conflict in Bosnia and Herzegovina broke out at

6 the precise moment when parts of the international community or the

7 international community acting against the recommendations of the UN

8 Secretary-General from December 1991, where it was recommended that there

9 should be a general solution for the crisis. They recognised Bosnia and

10 Herzegovina and then the war broke out there.

11 Next, the Prosecutor argues that this conflict has nothing to do

12 with Yugoslavia, that this indictment has nothing to do with Yugoslavia,

13 that the Additional Protocols also stipulate nothing to that effect. I,

14 and the Defence in general, we did not want anyone to be put on trial for

15 doing what they did to Yugoslavia. This is not our argument. It is our

16 argument that we simply wanted to prove that international factor did

17 affect the armed conflict in Yugoslavia and that Yugoslavia -- armed

18 rebellion in Yugoslavia and that Yugoslavia is the only internationally

19 recognised subject from 1990 until the JNA troops withdrew from this area,

20 in accordance with the agreement reached with the UN under the Vance Plan.

21 And I wanted to stress one more thing. Until the deployment of

22 the UN troops - and we saw yesterday a document that was introduced

23 through Mr. Kirudja, a Prosecution witness - that the United Nations were

24 given guarantees by the JNA, that they would get the territory that would

25 be in military terms and in administrative terms well-organised. So when

Page 11433

1 the UN troops were deployed in UN protected areas, Mr. Martic is no longer

2 responsible for the safety of the population. The Minister of the

3 Interior of Krajina is not responsible for their safety. It is the

4 civilian police of the United Nations.

5 The United Nations are responsible for the safety, both of the

6 Serb and of the Croat population. UNCIVPOL was there to control the

7 population of the local police. Document Exhibit 965, the minutes from

8 the meeting of the deputy head of the UN mission, Mr. Cedric Thornberry

9 and Mr. Martic from the 14th of July, 1993, you can see here that the

10 deputy commander says that CIVPOL commander is directly subordinate to me

11 and we cooperate well. Mr. Thornberry goes on to say, I understand it to

12 protect Croats only under very difficult circumstances. And the only

13 argument that the Prosecutor used in order to discredit this report, this

14 document, which is authentic, is that it has not been authorised.

15 And I'm asking you: How can he now complain that we have not

16 authenticated our document or authorised our document when none of the

17 documents that the Prosecution was using had been authorised by the

18 Serbian side or authenticated by the Serbian side. Cedric Thornberry is

19 saying that there is a media war against Croats -- that there is a media

20 war against Serbs and that he cannot understand the acts by the

21 international community.

22 Witness Barriot says that Serbs had been vilified, and he

23 renounced his career in order to serve the truth. There was an honourable

24 man.

25 Everything that was done in the territory of Krajina in relation

Page 11434

1 to this basic argument proffered by the Prosecution, that everything

2 happened way back before 1990 and that it was aimed at the Serbian

3 secession, the justice system, the prison system, the education system,

4 the health care system, the functioning of the police, we've seen a number

5 of documents indicating that the police had its own organisation; its

6 rank, its titles, salary scales. Everything was completely regular. So

7 all this shows that this was not a parallel structure, as Babic falsely

8 testified. It is a system that existed on the basis of Yugoslav law.

9 The fact that Serbs used -- applied Yugoslav laws in Krajina is,

10 according to the Prosecution, proof of the existence of a joint criminal

11 enterprise in a situation when it is quite clear that the Republic of

12 Croatia said on the 21st of February, 1992, that federal regulations no

13 longer -- no, in fact, it was in 1991, 21st of February, 1991, that

14 federal laws no longer applied in our territory.

15 So what if the Executive Council of Krajina or whoever in the

16 Krajina government said: We will apply the Yugoslav laws. They had no

17 other laws to copy. They could not apply the Croatian laws. And Serb

18 laws were -- Serbian laws were in accordance with the federal laws. This

19 is all there is to it, nothing else.

20 The Prosecutor's argument that the issue of the application of JCE

21 was already ruled in the appellate stage and that the Defence had had to

22 raise this issue before going to trial, the Prosecutor fails to look at

23 another factor. Before we went to trial, the Tribunal has already ruled

24 on this. So why should we file on appeal against this decision under Rule

25 72 when this has already been ruled on by the Appeals Chamber? But we are

Page 11435

1 entitled to express our own opinion that it is actually not just for the

2 same body to decide in the second instance on this issue.

3 It was the Security Council that should have done so, because then

4 it would mean that the same person is acting as a Prosecutor and as a

5 Judge - this is a saying that we have in Serbia - because now we simply

6 don't have a second instance. This is a single-instance court, and I

7 don't think that the Tribunal really wants to create this impression that

8 is engendered by such acts. It is difficult to deal with this issue when

9 you already have some decisions in place.

10 As regards Skabrnja, my learned colleague from the Prosecution

11 says that Defence witness Lakic confirmed that the planes had taken off.

12 This is just not so, Your Honour. Witness Lakic confirmed that the planes

13 that had taken off had been fired on, that they had sustained damage, and

14 the witnesses explained everything. It sounds a little bit ironic when

15 Prosecution witness MM-80 drew all the routes that were blocked from

16 Benkovac to the Zemunik airport. And it is quite ironic when he says they

17 could have used a side road, but witness Lakic said at least 20 soldiers

18 had been killed. So this was an armed rebellion. This is what Agotic

19 testified about and what can be seen from Exhibit 402; 200.000 heavily

20 armed soldiers against 20.000 JNA troops.

21 As regards Bruska, the Prosecutor said that we speculated about

22 the reasons why somebody might introduce themselves as a police when

23 knocking on the door. We're not speculating. We're merely thinking. Is

24 it logical for one that is about to commit the crime to introduce him or

25 herself? And how would you interpret the view put forward by the

Page 11436

1 Prosecutor? Would they masquerade as somebody, as the police in order to

2 gain entry into the house? But when the Prosecutor does that, he's not

3 speculating. He quotes from Ante Marinovic's statement, where Ante

4 Marinovic said that they wore uniforms. This is speculation. The

5 Prosecution must prove who these people are. You saw Exhibit 602, an

6 order by Mr. Martic, that all those people in camouflage uniforms, all

7 those police officers who did not have the appropriate ID cards, should be

8 disarmed. And this is what this is all about.

9 How many movies did we see about bandits robbing banks, killing

10 people, in disguise, disguised as police? This is reality, and the

11 Prosecution cannot base his case on speculations because Jasna Denona and

12 Ante Marinovic say, Serbs gave us medical treatment, Serbs protected us,

13 Serbs saved us. And the Prosecutor says: What does it have to do with

14 Martic? If Martic created the climate of terror, then how is it then

15 possible that in this climate everything functioned in such a way that

16 these people were helped rather than hindered?

17 I do believe that my colleague from the Prosecution is, in fact,

18 speculating, at least a tiny bit. Thank you, Your Honours, I believe we

19 have come to the end of our session today.

20 JUDGE MOLOTO: [Microphone not activated]

21 THE INTERPRETER: Microphone, please.

22 MR. MILOVANCEVIC: [Interpretation] Let me just say something, I

23 have not discussed all the items, all the issues raised by the Prosecutor.

24 I still have a couple of issues I wish to make.

25 JUDGE MOLOTO: You can put them on paper and submit them in

Page 11437

1 written form, Mr. Milovancevic, because we don't have any other sitting

2 day now.

3 This brings us to the end of the hearing.

4 MR. MILOVANCEVIC: [Interpretation] Your Honour, I have a proposal.

5 Since there are no other trials today, can we then continue today and I

6 will complete my closing arguments today orally? This is not very easy

7 for me to do in writing. This is would not be equality of arms, because

8 my learned colleague from the Prosecution had the opportunity to address

9 you orally and I would like to have one as well.

10 JUDGE MOLOTO: Equality of arms also means equality of time, Mr.

11 Milovancevic. You know in this address how much time you have had in

12 relation to the time that the Prosecution has had. I don't know.

13 [Trial Chamber confers]

14 MR. MILOVANCEVIC: [Interpretation] Your Honour.

15 JUDGE MOLOTO: How much time do you still have? How much time do

16 you need?

17 MR. MILOVANCEVIC: [Interpretation] Perhaps 40 minutes or so,

18 half-hour.

19 JUDGE MOLOTO: Half-hour?

20 MR. MILOVANCEVIC: [Interpretation] Yes.

21 MR. WHITING: Your Honour, I really --

22 MR. MILOVANCEVIC: [Interpretation] And I will try to cut this down

23 as much as possible.

24 JUDGE MOLOTO: If you say five minutes, I can give you five

25 minutes and we can sit now for five minutes and wrap-up.

Page 11438

1 MR. WHITING: And --

2 MR. MILOVANCEVIC: [Interpretation] May I address you, Your

3 Honours. For one, this trial has been going on for one year --

4 JUDGE MOLOTO: Sorry, Mr. Milovancevic. I'll give you five

5 minutes, if you can use those five minutes and wrap up, if not let me help

6 you.

7 Mr. Whiting.

8 MR. WHITING: Your Honour, I think that's an appropriate solution

9 to have five more minutes. The points have been made, they've been

10 repeated, they have had opportunities. And I would strenuously resist or

11 object to another opportunity to have a written submission, because that's

12 just going to open the door to further submissions and I think we need to

13 finish. And five more minutes is enough time to finish.

14 JUDGE MOLOTO: Mr. Milovancevic.

15 [Trial Chamber confers]

16 JUDGE MOLOTO: Mr. Milovancevic, are you ready to finish in five

17 minutes? Please do so. 5 to 2.00, we stop.

18 MR. MILOVANCEVIC: [Interpretation] Yes.

19 The Prosecutor brought forward an argument that even if one

20 defends, due to fear, if one defend oneself because of fear without

21 allowing -- I apologise. If one defends oneself due to fear, then that

22 right to self-defence does not entail a right to commit a crime. Not a

23 single time did anybody in the Defence say anything about the need to

24 exercise the right of self-defence by committing crimes. The Prosecutor

25 said, One cannot, due to some alleged self-defence, persecute population.

Page 11439

1 Mr. Thornberry -- Mr. Prosecutor says that one cannot persecute

2 population because of self-defence. Mr. Thornberry, who was the deputy

3 commander of UN said in 1993: "I fully understand that you are doing our

4 work under difficult circumstances and trying to protect the population."

5 So the Prosecution has nothing to corroborate their claims.

6 He also mentioned witness Dzakula and said that he initiated some

7 peace proposals, but witness Dzakula, as a witness for the Prosecution,

8 said that every peace initiative who tried to start with the Croatian side

9 was thwarted by the Croatian side; each of them failed, even in the event

10 in Plitvice when they were disarmed, in Borovo Selo, and the Daruvar

11 Agreement itself. Witness MM-05 said: "What does it mean when you sign an

12 agreement on normalisation of relations; and then contrary to your

13 agreement, and you publish it in an amended form." This puts an end to

14 any kind of further negotiations.

15 Those were intentional campaigns and witness Dzakula spoke the

16 truth, because what was happening on the highway on the eve of the 1st of

17 May, 1995, is something that the Prosecutor himself acknowledged; that was

18 no reason and no justification for an aggression. The Defence is very

19 grateful to our learned friend from the Prosecution for stating in his

20 closing arguments.

21 When it comes to Zagreb -- just a minute, please.

22 MR. WHITING: Actually, Your Honours, I didn't say anything about

23 Zagreb in the last submission.

24 MR. MILOVANCEVIC: [Interpretation] I accept that. So under the

25 circumstances, I have a minute and a half remaining. In our closing

Page 11440

1 arguments, we were not allowed to deal with the issues that were not

2 covered in our final brief because we opted to deal with them in our

3 closing arguments. In our final brief, we dealt with the topics that we

4 selected, because we wanted to deal with them properly. And we left the

5 remaining topics for the closing arguments.

6 In this situation, we are placed in an unequal position, and this

7 unequal position leads to only one possible conclusion, given the evidence

8 admitted, and that is that there are no -- that there is no valid evidence

9 to prove that there existed in joint criminal enterprise, that there was

10 any intention to commit crimes, that Mr. Martic, in any form or shape,

11 participated in that.

12 Quite the opposite. All evidence point to the fact that this is a

13 hero, who under difficult circumstances, as evidenced by Mr. Thornberry,

14 protected the population. I see absolutely no possibility for you to

15 adopt any other decision than an acquittal. Speculations cannot be used

16 to found an indictment upon them, and, consequently, they can also not be

17 used to found a conviction on them.

18 You have before you, or rather, because of the armed rebellion and

19 all other circumstances I quoted, a president of a persecuted people

20 stands before you. He is innocent, just as innocent as his people are who

21 had been expelled from their homes 12 years ago. All those homes that you

22 saw when you travelled, homes without windows, homes without doors, are

23 all Serbian homes. Thank you.

24 JUDGE MOLOTO: Thank you very much, Mr. Milovancevic.

25 [Trial Chamber confers]

Page 11441

1 THE ACCUSED: [Interpretation] I apologise. May I be granted three

2 minutes?

3 JUDGE MOLOTO: You are granted three minutes, Mr. Martic.

4 THE ACCUSED: [Interpretation] Thank you. Your Honours, the first

5 indictment was issued against me for Zagreb in 1995. It was done

6 urgently, within a time-period of 50 days without any investigation. That

7 indictment was never handed to me. I only heard about it. This

8 indictment stood for seven years in its original form. Had there been

9 additional evidence, I'm sure it would have been amended.

10 When I came here voluntarily on the 15th of May, 2002, Croatian

11 media wrote and suggested some other issues that should perhaps be looked

12 into when indicting Mr. Martic, and the Prosecutor naturally accepted

13 that. And whatever was written about by the media was included in the

14 indictment. I was accused for everything and then some, and then we heard

15 that this was libel or slander. And I'm saying that this entire

16 indictment against me is slanderous.

17 Why did the Prosecutor do that? Actually, I take no offence

18 against them. Looking at the sentence that they want me to be sentenced

19 to, naturally, such a young Prosecutor will want to have under his belt

20 such a significant sentence; however, this Prosecutor comes from a certain

21 country and very frequently he emphasises before you: In my legal system,

22 in my country. And he did this for one single purpose. He wants to show

23 you that he comes from a powerful state, from a powerful country. And

24 this country of his, the country to which he pledged loyalty, actively

25 participated in the persecution of my people. And now he is here to

Page 11442

1 justify the acts of his country by shifting the blame for what they did to

2 somebody else.

3 (redacted)

4 (redacted)

5 (redacted). I'm not surprised by this appeared and I'm not surprised by

6 the acts of this young gentleman.

7 JUDGE MOLOTO: I'm sorry, Mr. Martic. I don't think that

8 statement you made is appropriate. What do you think, about the pants?

9 THE ACCUSED: [Interpretation] No, this was published by all the

10 media. I don't see what's secret about it.

11 JUDGE MOLOTO: I am not saying it's secret. I say it's

12 inappropriate. It has no relevance to this case, and I'll order that it

13 be redacted. Thank you. You may proceed. Just finish off. Your three

14 minutes are long over.

15 THE ACCUSED: [Interpretation] I wish to believe that you, ladies

16 and gentlemen, will be able to correctly assess what transpired and adopt

17 a just judgement. I'm not going to tell you what the judgement should be;

18 my Defence counsel spoke about that. And, otherwise, if you follow the

19 proposal of the Prosecutor, then it will be clear that this was the

20 judgement rendered by his system. Thank you.


22 [Trial Chamber confers]

23 JUDGE MOLOTO: I said earlier that this brings us to the end of

24 the hearing, and there are a few things that are still outstanding which I

25 would like to place on record so that they can be followed up. First of

Page 11443

1 all, we still haven't got the transcript of the site visit, and I want to

2 believe that we should be able to get that fairly soon. When that comes

3 up, I hope it will be distributed amongst the parties and the Bench, and

4 it will be taken into account when the judgement is drafted. That's the

5 first point that's outstanding.

6 The second point that is outstanding is the public versions of the

7 final briefs. In their written submissions, the Prosecution indicated

8 that they would be able to do this very soon. The Defence was silent on

9 this point. Now, the reason for that is that references may have been in

10 the unredacted versions to protected witnesses or victims or whatever; and

11 to the extent that it is desirable that it is to have the proceedings as

12 public as is possible, it would be helpful if public versions of the final

13 briefs can be filed in due course. It shouldn't be very difficult to do

14 this. It's just a question of deleting what you think needs to be deleted

15 in the confidential versions and giving us a copy of the redacted version.

16 In relation to that, I would like to hear from the parties how

17 soon this can be done so that we put a time-limit to it.

18 Mr. Whiting.

19 MR. WHITING: We can get ours done by Wednesday, Your Honour.

20 JUDGE MOLOTO: Wednesday next week?

21 MR. WHITING: Yes.

22 JUDGE MOLOTO: Mr. Milovancevic.

23 MR. MILOVANCEVIC: [Interpretation] Your Honour, I think that we

24 could also do it by then.

25 JUDGE MOLOTO: Thank you very much.

Page 11444

1 MR. MILOVANCEVIC: [Interpretation] Perhaps, I apologise. Let's

2 say by the end of the week. May I ask something. What does this

3 redaction mean, the redaction of the text, so that it's entirely clear to

4 us. Your Honours, when doing the final brief, when writing it, we made

5 sure that we did not mention a single name of a witness who is a protected

6 witness.

7 JUDGE MOLOTO: If you made sure, there's no need to give us a

8 redacted version. If you're sure the version you've given can go to the

9 public without compromising the security or the safety of any of the

10 witnesses or victims, that's fine, but that is the purpose of the

11 redaction.

12 MR. MILOVANCEVIC: [Interpretation] Your Honour, I understood,

13 thank you.

14 MR. WHITING: Just to be clear about the approach that we are

15 going to take, and it may be helpful to Defence counsel. We also did not

16 make reference to any protected witness my name to any protected witness.

17 We are going to redact any references that might identify a witness,

18 either references contained in exhibits or in testimony. So, for example,

19 if there was one witness who testified about a certain event and who is

20 easily identifiable for that reason, we may redact portions of that or any

21 other identifying information should be redacted.

22 MR. MILOVANCEVIC: [Interpretation] Your Honours, this might entail

23 a lot of work. Could we please have the deadline extended to the end of

24 the week. If possible, we will do this my Wednesday. But I want to be

25 sure that I will comply with the deadline, that's why I am asking it be

Page 11445

1 the end of the week.

2 JUDGE MOLOTO: For the Defence, the deadline will be Friday next

3 week. Thank you very much.

4 Let me say, other than those two issues, no further filings will

5 be allowed by other party. I notice also that in this Tribunal at the

6 time of closing argument, there is a combination of argument on the merits

7 and argument on sentence. I note that the Defence did not argue any

8 points on sentence. I understand that they argued for a complete

9 acquittal, and I want to say that I hope that the omission to address the

10 question of sentence was not an oversight on the part of the Defence, that

11 it was deliberate, and they don't intend doing so, because we are now

12 going to close. There's not going to be any further arguments.

13 Having said that, let me say -- yes, Mr. Milovancevic.

14 MR. MILOVANCEVIC: [Interpretation] I wanted to ask something. I

15 think that two days ago we received information concerning the admission

16 of the transcript from the site visit and that we will be allowed to file

17 a motion regarding that. Now you're telling us that no other motions will

18 be allowed. Does this mean that your ruling of today supersedes what you

19 said several days ago, that there will be no further motions concerning

20 the site visit transcripts?

21 JUDGE NOSWORTHY: I'm sorry, motion?

22 MR. MILOVANCEVIC: [Interpretation] We were told at the beginning

23 of this stage of the trial, on the 10th, that since the transcript from

24 the site visit were not yet produced, that the Trial Chamber will allow

25 both the Prosecution and the Defence to file motions upon receiving these

Page 11446

1 written transcripts, if they want to file a motion, if there is reason for

2 that. Is this still in force or not?

3 JUDGE MOLOTO: Please, can you refer us to the transcript where

4 this was said, Mr. Milovancevic? Let me just be clear what it is that the

5 Court said.

6 MR. MILOVANCEVIC: [Interpretation] Your Honour, on the first day,

7 at the very beginning, we discussed housekeeping matters. I cannot refer

8 you to a page.

9 MR. WHITING: I can. It's 11173, Your Honours. It's on the 10th

10 of January.

11 JUDGE NOSWORTHY: At what line, Mr. Whiting?

12 MR. WHITING: It's at the -- it's in the middle of the page. It's

13 starting at line 15.

14 JUDGE NOSWORTHY: Yes, but that refers to written submissions.

15 MR. WHITING: Yes, I think there's -- I think there may be --

16 JUDGE NOSWORTHY: -- a motion. That's why I'm making queries my

17 recollection is it was written submission.

18 MR. WHITING: That was our recollection as well, not a motion but

19 a written submission.

20 JUDGE MOLOTO: [Microphone not activated].

21 THE INTERPRETER: Microphone, please.

22 JUDGE MOLOTO: Written submissions if you have any corrections to

23 make to what is on the written thing or if you think that what's written

24 doesn't correspond with what's on the electronic recording, yes, not

25 motions. Okay. Is that okay, Mr. Milovancevic?

Page 11447

1 MR. MILOVANCEVIC: [Interpretation] Your Honours, what we said on

2 the 10th of January was understood by me as a possibility for us to use

3 that evidence so that the transcript of the site visit can be used by us

4 as -- in the course of our arguments during our case, not just to give

5 some technical corrections, whether it was transcribed properly. That is

6 not important for me at all.

7 What is important for me is to use what is stated in the

8 transcript in the Defence case against Mr. Martic, and we understood this

9 to be the position of the Trial Chamber, what to do with this since this

10 written transcript had not been admitted into evidence yet.

11 [Trial Chamber confers]

12 JUDGE MOLOTO: Okay. Fine. Thanks. We hear you, Mr.

13 Milovancevic. You make those submissions.

14 I've got to find out where I was now. Okay. I guess that's all I

15 wanted to talk about, except then to just say -- to thank everybody else

16 for the conduct of the trial and to say that pursuant to Rule 87 of the

17 Rules of Procedure and Evidence of this Tribunal, I, as the Presiding

18 Judge over this case, declare the hearing of this case closed. Thank you

19 very much.

20 Court adjourned.

21 --- Whereupon the hearing adjourned at 2.12 p.m.