Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11448

1 Tuesday, 12 June 2007

2 [Judgement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 8.59 a.m.

6 JUDGE MOLOTO: Good morning, everybody.

7 This Trial Chamber is sitting today to deliver -- to deliver its

8 judgement in the case of the Prosecutor versus Milan Martic. First of

9 all, the Trial Chamber wishes to thank the parties, the Registry staff,

10 and all others who have assisted in the smooth and efficient running of

11 this trial.

12 The Trial Chamber emphasises that this is but a summary of its

13 findings and that the only authoritative account is the written judgement,

14 which will be made available after this hearing.

15 This trial started on the 13th of December, 2005, and concluded on

16 the 12th of January, 2007. During the trial, which encompassed some

17 11.000 transcript pages, the Chamber heard the evidence of 67 live

18 witnesses and admitted written evidence of 33 witnesses. The Trial

19 Chamber admitted just over 1.000 exhibits.

20 The indictment in this case charges Milan Martic with individual

21 criminal responsibility in 19 counts, which set out: Nine counts of the

22 violations of the laws or customs of war under Article 3 of the Statute,

23 including murder, attacks on civilians, torture, cruel treatment,

24 destruction of villages and institutions dedicated to religion and

25 education, and plunder of public or private property; and ten counts of

Page 11449

1 crimes against humanity under Article 5 of the Statute, including

2 persecution, extermination, murder, torture, inhumane acts, and

3 deportation.

4 The Prosecution has alleged that Serb forces committed the crimes

5 charged against Croats and other non-Serbs in areas of Croatia referred to

6 as the Autonomous Region of Krajina, the so-called SAO Krajina or SAO

7 Krajine, which later became the Republic of Serbian Krajina, or RSK for

8 short. These crimes are alleged to have been committed from August 1991

9 through 1995.

10 The said forces which were alleged to have been involved included,

11 among others: Units of the Yugoslav People's Army, called the JNA; units

12 of the Territorial Defence, called the TO; and units of the Ministry of

13 the Interior, called MUP or M-U-P, of the SAO Krajina and of the RSK, as

14 well as of the Republic of Serbia; and paramilitary forces.

15 The MUP forces included the ordinary police of the SAO Krajina and

16 later the RSK, and the so-called Milicija Krajine. The Prosecution has

17 alleged that these MUP forces were commonly referred to as Martic's

18 Police.

19 The Prosecution has alleged that the persecutions included, as

20 underlying crimes, the extermination and murder of hundreds of Croats and

21 other non-Serb civilians, throughout the territory of the SAO Krajina and

22 the RSK, including specifically in the villages of Hrvatska Dubica,

23 Cerovljani, Bacin, Saborsko, Poljanak, Lipovaca, Skabrnja, Nadin, and

24 Bruska. These acts were also alleged to have been committed during

25 attacks by the previously mentioned forces on these villages and in these

Page 11450

1 areas. It was alleged that tens of thousands of Croats and other non-Serb

2 civilians were deported from the SAO Krajina and the RSK to areas under

3 Croatian control, or to other countries.

4 Moreover, the Prosecution has alleged that Croats and other

5 non-Serb civilians were routinely detained for prolonged periods in

6 detention facilities where acts of torture and cruel and inhumane

7 treatment were committed. It was also alleged that public and private

8 property in the SAO Krajina and the RSK was intentionally destroyed and

9 plundered, including buildings dedicated to religion and education, and

10 that restrictive and discriminatory measures were imposed against the

11 Croat and other non-Serb civilians.

12 Lastly, the Prosecution has charged Milan Martic with

13 responsibility for the shelling of Zagreb, which occurred on the 2nd and

14 3rd of May, 1995.

15 For each count, the Prosecution has charged individual criminal

16 responsibility pursuant to Article 7(1) of the Statute and pursuant to

17 Article 7(3) of the Statute. In particular, the Prosecution alleges that

18 Milan Martic participated in a joint criminal enterprise together with,

19 among others, Slobodan Milosevic; Milan Babic; Radovan Karadzic;

20 Ratko Mladic; Jovica Stanisic; Franko, "Frenki," Simatovic; and other

21 named and unnamed individuals of the forces mentioned previously.

22 The Prosecution has alleged that the common purpose was: " ...

23 The forcible removal of the majority of the Croat, Muslim, and other

24 non-Serb population from approximately one-third of the territory of

25 Croatia and large parts of Bosnia and Herzegovina in order to make them

Page 11451

1 part of a new Serb-dominated state."

2 In other words, the alleged common purpose was the commission of

3 the crimes of deportation and forcible transfer.

4 The Prosecution has alleged that all of the crimes charged were

5 within the object of the joint criminal enterprise and that at all

6 relevant times Milan Martic held the necessary state of mind for the

7 commission of each of these crimes. In the alternative, the Prosecution

8 has alleged that the crimes enumerated in Counts 1 to 9 and 12 to 19 -

9 that is, crimes other than deportation and forcible transfer - were a

10 natural and foreseeable consequence of the execution of the common

11 purpose. It is alleged that Milan Martic was aware that such crimes were

12 the possible outcome of the execution of this joint criminal enterprise.

13 The Trial Chamber will now turn to the accused himself. Milan

14 Martic was born on the 18th of November, 1954, in the village of Zagrovic,

15 Knin municipality, in the Republic of Croatia. He graduated from the

16 Post-Secondary Police School in Zagreb and worked firstly as a policeman

17 in Sibenik and later as a Junior Police Inspector in Knin. He was

18 eventually promoted to the Chief of the Knin Public Security Station.

19 From 1991 until August 1995, Milan Martic held several positions

20 within the SAO Krajina and the RSK governments, including Minister of

21 Defence of the SAO Krajina, Deputy Commander of the TO of the SAO Krajina,

22 Minister of the Interior of the SAO Krajina as well as of the RSK and from

23 early 1994 as President of the RSK.

24 The Trial Chamber will give a brief summary of the political

25 background to the events relevant to this case. In April and May 1990,

Page 11452

1 multi-party elections were held in Croatia, in which the Croatian

2 Democratic Union won two-thirds of the seats in the parliament. In the

3 same elections, the Serbian Democratic Party gained power in several

4 municipalities, including Benkovac, Korenica, and Knin. On the 25th of

5 July, 1990, a Serbian Assembly was established in Srb, north of Knin, as

6 the political representation of the Serbian people in Croatia. This

7 Serbian Assembly declared sovereignty and autonomy of the Serb people in

8 Croatia. In late August and early September 1990, a referendum of Serbs

9 was held which resulted in 97.7 per cent voting in favour of Serb autonomy

10 in Croatia.

11 On the 21st of December 1990 in Knin, the Serbian Autonomous

12 Region of Krajina was proclaimed by municipalities in the regions of

13 Northern Dalmatia and Lika, in south-western Croatia. On the 22nd of

14 December, 1990, the Croatian constitution was amended to define Croatia

15 as, and I quote, "national state of the Croatian nation and a state of

16 members of other nations or minorities who are citizens."

17 In January 1991, the SAO Krajina established a Regional

18 Secretariat for Internal Affairs in Knin and Milan Martic was appointed

19 Secretary for Internal Affairs. The government of Croatia was informed

20 that the Croatian MUP would no longer be considered as having authority

21 within the SAO Krajina. On the 27th of June, 1991, Milan Martic was

22 appointed Minister of the Interior of the SAO Krajina. On the 19th of

23 December, 1991, the SAO Krajina was replaced by the Republic of Serbian

24 Krajina. Milan Martic continued as Minister of the Interior.

25 The evidence presented to this Trial Chamber has shown that the

Page 11453

1 President of Serbia, Slobodan Milosevic, openly supported the preservation

2 of Yugoslavia as a federation of which the SAO Krajina would form a part.

3 However, the evidence has established that Slobodan Milosevic covertly

4 intended the creation of a Serb state. This state was to be created

5 through the establishment of paramilitary forces and the provocation of

6 incidents in order to create a situation where the JNA could intervene.

7 Initially, the JNA would intervene to separate the parties, but

8 subsequently the JNA would intervene to secure the territories envisaged

9 to be part of a future Serb state.

10 This evidence has been corroborated by evidence relating to the

11 events on the ground. During the spring and summer of 1991, armed clashes

12 took place between SAO Krajina and Croatian police in several areas.

13 There were also raids and attacks by SAO Krajina police and other forces

14 on several Croat-majority areas, including Lovinac, Ljubovo, and Glina.

15 The evidence has shown that the JNA intervened during these

16 clashes in order to separate the two sides. However, this changed on the

17 26th of August, 1991. On this date, the JNA 9th Corps participated on the

18 side of the SAO Krajina's Milicija Krajine and TO forces in an attack on

19 the Croat-majority village of Kijevo, near Knin. The attack followed an

20 ultimatum issued by Milan Martic, in which he stated that, and I quote:

21 "You and your leadership have brought relations between the Serbian and

22 Croatian populations to such a state that further co-existence in our

23 Serbian territories of the SAO Krajina is impossible ..."

24 The attack on Kijevo marked a turning point in the JNA's role in

25 the conflict in Croatia, and from that point the JNA participated in

Page 11454

1 attacks on majority-Croat areas and villages together with the SAO Krajina

2 MUP and TO forces. From August 1991 and into early 1992, these combined

3 forces attacked several Croat-majority villages and areas, including

4 Hrvatska Kostajnica, Cerovljani, Hrvatska Dubica, Bacin, Saborsko,

5 Poljanak, Lipovaca, Skabrnja, and Nadin. The evidence shows that the

6 attacks were carried out in order to connect Serb villages and areas

7 across non-Serb areas. During these attacks, the crimes of murder,

8 destruction, plunder, detention, torture, and cruel treatment were

9 committed against the non-Serb population.

10 The evidence is clear that the SAO Krajina and the RSK leadership,

11 including Milan Martic, endorsed Slobodan Milosevic's vision to create a

12 Serb-dominated state.

13 In early July 1991, Milan Martic stated that the Milicija Krajine

14 of the SAO Krajina MUP were "defending Serbian land and the Serbs' ethnic

15 area." On the 19th of August, 1991, Milan Martic stated that he would

16 accept no autonomy and that "the territories controlled by the police and

17 the Territorial Defence of the Serbian Autonomous Region of Krajina will

18 forever remain Serbian."

19 In December 1991, Milan Martic further stated that "nobody ...

20 has the right to deny the Serbian people the right to live in their

21 country."

22 This plan, to link-up Serb villages and areas, continued

23 throughout 1992 with various armed clashes and attacks, including the

24 so-called Operation Corridor, which was a military operation aimed at

25 linking the Croatian and Bosnian Krajinas with Serbia. RSK forces under

Page 11455

1 the command of, among others, Milan Martic participated in this operation.

2 At a meeting on the 14th of June, 1993, with Cedric Thornberry,

3 the United Nations Protection Forces Director of Civil Affairs, Milan

4 Martic stated that the "joint life of Croats and Serbs in one state is

5 impossible because of genocide politics of Croatia." He continued: "We

6 want to separate in two states ..."

7 The Trial Chamber notes that around this time in speeches in the

8 media, Milan Martic stated that he could not guarantee the safety of the

9 Croat population in Knin. On the 21st of January, 1994, during the

10 campaign for the RSK presidential elections, Milan Martic stated that he

11 would "speed up the process of unification" and "pass on the baton to our

12 all-Serbian leader, Slobodan Milosevic."

13 It is therefore clear that Milan Martic endorsed the goal of

14 creating a unified Serb state and that he advocated and pursued this goal

15 at all times.

16 The Trial Chamber considers that an objective to unite with other

17 ethnically similar geographical areas in and of itself does not amount to

18 a common purpose within the meaning of the law on joint criminal

19 enterprise pursuant to Article 7(1) of the Statute. However, the Trial

20 Chamber has found that where the creation of a unified territory is

21 intended to be implemented through the commission of crimes within the

22 Statute, this may be sufficient to amount to a common criminal purpose.

23 The Trial Chamber has taken particular note of the fact that the

24 attacks on predominantly Croat areas during the autumn of 1991 and early

25 1992 followed a generally similar pattern; that is, the area or village in

Page 11456

1 question was shelled, after which armed ground units entered. After the

2 fighting had subsided, acts of killing and violence were committed against

3 the non-Serb civilian population who had not managed to flee. Houses,

4 churches, and property were destroyed, and widespread looting was carried

5 out as part of the forcible removal.

6 On several occasions, the SAO Krajina police and TO organised

7 transport for the non-Serb population in order to remove it from the SAO

8 Krajina territory altogether to locations under Croatian control. Members

9 of the non-Serb population would also be rounded up and taken away to

10 detention facilities, including in central Knin, and eventually exchanged

11 and transported to areas under Croatian control.

12 Thus, the threat clearly expressed in Milan Martic's ultimatum in

13 Kijevo was carried out in the territory of the SAO Krajina through the

14 commission of widespread, grave crimes. This created an atmosphere of

15 fear in which the further presence of Croats and other non-Serbs in the

16 SAO Krajina was made impossible. The Trial Chamber has therefore

17 concluded that the displacement of the Croat and other non-Serb population

18 which followed these attacks was not merely the consequence of military

19 action, but in fact its primary objective.

20 By way of illustration, the Trial Chamber will describe the

21 take-over of the Hrvatska Kostajnica area and the crimes committed there.

22 During August and September 1991, there was intensive fighting in

23 the predominantly Croat area of Hrvatska Kostajnica. In mid-September

24 1991, SAO Krajina TO and MUP forces took control of Hrvatska Kostajnica

25 and from there, as well as from Bosanska Kostajnica in Bosnia and

Page 11457

1 Herzegovina, the village of Hrvatska Dubica was shelled and the Croatian

2 forces withdrew. A SAO Krajina TO and MUP force was then set up in

3 Hrvatska Dubica. In the same operation, the nearby villages of Cerovljani

4 and Bacin were also taken.

5 In September and October 1991, houses belonging to Croats were

6 torched in Hrvatska Dubica and the neighbouring village of Cerovljani, and

7 widespread looting was committed by the TO, the Milicija Krajine, the JNA,

8 as well as by local Serbs. Local Croats were detained and subjected to

9 mistreatment and were also used as live shields by the Serb forces. Serbs

10 moved into houses which the fleeing Croats had left.

11 In the morning on the 20th of October, 1991, a truck bearing the

12 insignia "Milicija SAO Krajina," driven and controlled by members of the

13 SAO Krajina TO and MUP collected civilians, who were almost exclusively

14 Croats, under the pretext of holding a meeting in the local fire station.

15 In total, more than 40 civilians were brought to this fire station. They

16 were guarded by several armed Serb soldiers, and they were not free to

17 leave. Every two or three hours, there was a change of guard and the

18 detainees' names would be read out from a list to verify that no one was

19 missing. Over the course of the day, 11 of the detainees managed to

20 escape or were released because they had contacts with Serbs.

21 The following day, those detained in the fire station were taken

22 by the soldiers to Krecane just outside of the village of Bacin, on the

23 banks of the Una river, and were killed. Their bodies were buried in

24 several graves, including a mass grave at that location. The Trial

25 Chamber visited this location during its site visit in September 2006.

Page 11458

1 An almost identical incident occurred in nearby Cerovljani in

2 October 1991, during which the remaining Croat and other non-Serb

3 civilians were rounded up by armed Serbs under the pretext of having a

4 meeting. They were then detained for one night in the local community

5 centre. One woman was released because she had contact with Serbs. The

6 bodies of several persons who had been detained in this community centre

7 were subsequently exhumed from the mass grave at Krecane near Bacin. The

8 Trial Chamber has also found that the non-Serb civilians who remained in

9 Bacin were also taken to Krecane where they were killed.

10 The Trial Chamber was presented with considerable evidence of acts

11 of persecution carried out against the non-Serb population. Widespread

12 acts of murder and violence, detention, and intimidation became pervasive

13 throughout the RSK territory from 1992 to 1995. These acts were committed

14 by RSK TO and MUP forces and by the JNA, as well as by members of the

15 local Serb population, and created such a coercive atmosphere that the

16 Croat and other non-Serb inhabitants of the RSK were left with no option

17 but to flee or to be deported by force by RSK forces. In this respect,

18 the Trial Chamber has taken particular note of the evidence that the RSK

19 MUP forces directed the non-Serb population to collection points from

20 which transport was organised to areas under Croatian control. By 1994,

21 the RSK was virtually entirely Serb.

22 The Trial Chamber has found that all crimes charged in the

23 indictment, with the exception of extermination under Count 2, were

24 committed in the SAO Krajina and the RSK from August 1991 through 1995,

25 including murder, imprisonment, torture, cruel treatment, destruction,

Page 11459

1 including of buildings dedicated to religion, as well as plunder.

2 However, the Trial Chamber stresses that there are incidents underlying

3 the crimes charged for which the Trial Chamber does not find Milan Martic

4 guilty. The Trial Chamber refers to the judgement in this respect.

5 In relation to extermination, the Trial Chamber recalls that a

6 minimum number of victims is not required and that the crime may be

7 established by an accumulation of separate and unrelated killings. The

8 Trial Chamber has, in particular, considered the evidence that the

9 killings charged were committed within a limited period of time and within

10 a limited territory. However, having considered these factors, as well as

11 the totality of the evidence surrounding the killing incidents charged as

12 extermination, the Trial Chamber found that the crime of extermination was

13 not committed on an accumulated basis in this case.

14 In the alternative, the Prosecution has argued that the killings

15 committed at Krecane near Bacin amounts to extermination in and of

16 themselves. The Trial Chamber considers that the killings committed at

17 Krecane were without doubt grave, particularly considering the organised

18 and callous manner in which the evidence shows that they were carried out.

19 Notwithstanding, the Trial Chamber finds that these killings, even taken

20 together, cannot be considered as having been committed on a large scale.

21 In other words, the killings the Krecane near Bacin do not meet the

22 element of massiveness required for extermination.

23 The Trial Chamber will now turn to discuss the individual criminal

24 responsibility of Milan Martic. The Trial Chamber has found that with

25 regards to Counts 3 to 14 and Count 1, persecution, insofar as it relates

Page 11460

1 to these counts, Milan Martic's individual criminal responsibility is one

2 of participation in a joint criminal enterprise pursuant to Article 7(1)

3 of the Statute.

4 The Trial Chamber has found that from at least August 1991 the

5 political objective to unite Serb areas in Croatia and in

6 Bosnia-Herzegovina with Serbia in order to establish a unified Serb

7 territory was implemented through widespread and systematic armed attacks

8 on predominantly Croat and other non-Serb areas and through the commission

9 of acts of violence and intimidation. In the SAO Krajina and the RSK,

10 this campaign of violence and intimidation against the Croat and non-Serb

11 population was a consequence of the position taken by the leadership, that

12 co-existence with the Croat and other non-Serbs, in Milan Martic's own

13 words, "In our Serbian territories of the SAO Krajina was impossible."

14 The implementation of the political objective to establish a

15 unified Serb territory in these circumstances necessitated the forcible

16 removal of the Croat and other non-Serb population from the SAO Krajina

17 and the RSK. The Trial Chamber has therefore found it established beyond

18 reasonable doubt that the common purpose of the joint criminal enterprise

19 was the establishment of an ethnically Serb territory through the

20 displacement of the Croat and other non-Serb population, as charged in

21 Counts 10 and 11.

22 The evidence establishes that the SAO Krajina and the RSK

23 leadership, including in particular Milan Martic, sought and received

24 significant financial, logistical, and military support from Serbia. The

25 support came from the MUP and the State Security Service of Serbia, from

Page 11461

1 the JNA, and from the Republika Srpska in Bosnia-Herzegovina. Milan

2 Martic stated that he "personally never ceased this cooperation" and that

3 there was "good cooperation with the leadership of Serbia, notably the

4 MUP."

5 In fact, the relationship with Serbia was so close that the SAO

6 Krajina police was mainly financed with funds and material from Serbia.

7 The support from Serbia continued throughout the indictment period. One

8 witness even described the Army of the RSK and the Yugoslav Army as one

9 and the same organisation, only located at two separate locations.

10 The Trial Chamber has therefore found that, among others, Blagoje

11 Adzic; Milan Babic; Radmilo Bogdanovic; Veljko Kadijevic;

12 Radovan Karadzic; Slobodan Milosevic; Ratko Mladic; Vojislav Seselj;

13 Franko, "Frenki," Simatovic; Jovica Stanisic; and Captain Dragan

14 Vasiljkovic participated in the furtherance of the common purpose of the

15 joint criminal enterprise.

16 The evidence shows that Milan Martic's contacts with other members

17 of the joint criminal enterprise were close and direct. As a result,

18 substantive financial, logistical, and military support was rendered to

19 the SAO Krajina and the RSK. The evidence is clear that Milan Martic

20 actively worked together with the other participants to achieve the

21 objective of a united Serb state, something which he, as noted, expressed

22 publicly on several occasions.

23 The objective he achieved -- I beg your pardon. This objective he

24 achieved by the forcible removal of the non-Serb population. The evidence

25 establishes that Milan Martic was one of the most important and

Page 11462

1 influential political figures in the SAO Krajina and RSK governments. As

2 Minister of the Interior, Milan Martic exercised absolute authority over

3 the MUP, including the power to intervene on an individual level by

4 appointing and removing chiefs of public security stations and to disband

5 units.

6 The evidence shows that the displacement of the Croat and other

7 non-Serb population had commenced in and around Knin by 1991. Milan

8 Martic contributed to this displacement by fueling the atmosphere of fear

9 through his media speeches that he could not guarantee the safety of the

10 Croats. Furthermore, the ultimatum issued by Milan Martic in relation to

11 Kijevo at the end of August 1991 is indicative of Milan Martic's mindset

12 in relation to the Croat and other non-Serb population of the SAO Krajina.

13 The Trial Chamber considers that the sheer scale of the widespread

14 and pervasive crimes perpetrated against the non-Serb population must have

15 rendered such crimes common knowledge. Crimes committed within the

16 territory of the RSK were even discussed at RSK government sessions. The

17 evidence also shows that Milan Martic and the MUP were informed by the

18 United Nations Civilian Police of the multitude of crimes committed

19 against non-Serbs. In fact, Milan Martic himself issued detailed

20 instructions concerning the cooperation of the MUP with the United Nations

21 Civilian Police. In addition, at a meeting in 1993 with Cedric

22 Thornberry, the UNPROFOR Director of Civil Affairs, Milan Martic requested

23 that Croats who wished to leave the RSK sign statements that no one had

24 put pressure on them to leave. There is therefore absolutely no doubt

25 that Milan Martic was aware that the non-Serb population was being driven

Page 11463

1 out as a result of the coercive atmosphere and widespread acts of violence

2 and intimidation in the SAO Krajina and the RSK.

3 However, despite the overwhelming evidence of crimes committed

4 throughout the SAO Krajina and the RSK territory, the Trial Chamber was

5 only presented with evidence of a few examples where Milan Martic

6 intervened to punish members of the MUP who had behaved in a criminal

7 manner. The Trial Chamber cannot but conclude that Milan Martic

8 deliberately refrained from intervening against perpetrators who committed

9 such crimes.

10 The Trial Chamber has therefore found that Milan Martic intended

11 to forcibly displace the Croat and other non-Serb population from the SAO

12 Krajina and the RSK, and that he actively participated in the furtherance

13 of the common purpose of the joint criminal enterprise to create a unified

14 Serb state by such forcible removal of the Croat and other non-Serb

15 population.

16 The Trial Chamber has found that the crimes perpetrated against

17 the non-Serb population, with the exception of deportation and forcible

18 transfer, were outside of the common purpose of the joint criminal

19 enterprise. However, the Trial Chamber recalls that Milan Martic was

20 aware that the non-Serb population was being subjected to widespread and

21 systematic crimes, including murder, unlawful detentions, beatings while

22 detained, and crimes against property, following the coercive atmosphere

23 in the SAO Krajina and the RSK. The Trial Chamber considers that this

24 atmosphere was created and sustained by the actions of Milan Martic and

25 other members of the joint criminal enterprise. The Trial Chamber has

Page 11464

1 therefore found that these crimes were foreseeable to Milan Martic.

2 Furthermore, the evidence includes only scarce reference to Milan

3 Martic acting to take measures to prevent or punish such crimes. In fact,

4 despite the overwhelming evidence of the scale and gravity of the crimes

5 being committed against the non-Serb population, Milan Martic persisted in

6 pursuing the common purpose of the joint criminal enterprise. Thus, the

7 Trial Chamber considers it proven beyond reasonable doubt that Milan

8 Martic willingly took the risk that the crimes which have been found to be

9 outside the common purpose might be perpetrated against the non-Serb

10 population. The Trial Chamber has therefore found that Milan Martic

11 incurs individual criminal responsibility pursuant to Article 7(1) of the

12 Statute for Counts 3 to 14 and Count 1, persecution, insofar as it relates

13 to these counts.

14 The Trial Chamber now turns to the attacks on Zagreb on the 2nd

15 and 3rd of May, 1995, with which Milan Martic is charged under Counts 15

16 to 19.

17 In the early morning hours oft 1st of May, 1995, armed forces of

18 Croatia launched a military offensive known as Operation Flash on Western

19 Slavonia in the RSK. Negotiations to find a peaceful settlement took

20 place during the operation, and agreements were eventually reached on the

21 3rd of May, 1995. Operation Flash ended around the 4th of May, 1995, with

22 the RSK losing control over Western Slavonia. As a result, a large part

23 of the Serb population fled Western Slavonia.

24 At 1.00 p.m. on the 1st of May, 1995, Milan Celeketic, the chief

25 of the Main Staff of the RSK Army, ordered artillery fire on the city of

Page 11465

1 Sisak near Zagreb. The order was given in the presence of Milan Martic,

2 who was by then the President of the RSK and, according to the

3 constitution, led the armed forces in peace and in war. Artillery fire

4 was opened at 5.00 p.m. that day. On the same day, Milan Celeketic

5 deployed the M-87 Orkan unit from the Knin area to Vojnic, which is

6 located about 50 kilometres south of Zagreb. The unit was to take up

7 positions by 2.00 p.m. on that day. The Trial Chamber will describe the

8 characteristics of the M-87 Orkan shortly.

9 On the 1st of May, 1995, a meeting was held between, among others,

10 Milan Martic, as President of the RSK; Milan Celeketic; and the Prime

11 Minister and the ministers of the RSK government. Both peaceful

12 solutions, involving negotiations and a surrender of parts of Western

13 Slavonia, and non-peaceful solutions were discussed. The evidence shows

14 that Milan Martic and Milan Celeketic were not in favour of a peaceful

15 solution.

16 In the mid-morning of the 2nd of May, 1995, without warning,

17 several Orkan rockets struck locations in Zagreb, including the main

18 square, several shopping streets, a school, the village of Pleso near

19 Zagreb airport and the airport itself. Five persons, all civilians, were

20 killed in these attacks and at least 160 persons were severely injured.

21 Many of these victims still today suffer from these injuries.

22 At midday the following day, 3rd May 1995, Zagreb was again

23 shelled by Orkan rockets. The areas hit were the Croatian National

24 Theatre at Marsal Tito square, a children's hospital, as well as another

25 square. These attacks claimed two lives and injured 54 people. Many of

Page 11466

1 these victims also still suffer from their injuries.

2 There is considerable evidence that Milan Martic had considered

3 attacking Zagreb prior to the 2nd of May, 1995. Already in 1992 and 1993,

4 Milan Martic, as Minister of the Interior, considered attacking Zagreb as

5 a response to Croatian attacks on RSK cities. On one occasion, he stated

6 that, and I quote: "It would be better for Tudjman and his soldiers not

7 to touch us again because that would compel us to head forcefully for

8 Zagreb and to turn it into Vukovar."

9 In June 1993, Milan Martic informed Slobodan Milosevic that the

10 P-65 LUNA rocket system had been moved to the area of Banija and Kordun in

11 order to carry out possible attacks on Zagreb should RSK towns come under

12 attack.

13 In a meeting on the 24th of October, 1994, with Peter Galbraith,

14 the United States Ambassador to Croatia, Milan Martic, then President of

15 the RSK, threatened to shell Zagreb, stating in effect that attacking

16 civilian targets in Zagreb and attacking the city itself was a way in

17 which the RSK could respond to a Croatian attack. Ambassador Galbraith

18 informed Milan Martic that attacking Zagreb would be a crime.

19 In February 1995, in a speech to the commanding officers of the

20 RSK Army, Milan Martic stated emphatically that: "No one can stop us to

21 fire at Zagreb, Osijek, Vinkovci, Zadar, Karlovac, Split."

22 On the 3rd of May, 1995, that is, on the second day of the attacks

23 on Zagreb, Milan Martic stated, and I quote again: "As a counter measure

24 to what Tudjman did to you here, we have shelled all their cities: Sisak

25 several times and Karlovac, Zagreb yesterday and today. This was done for

Page 11467

1 you. Today an ultimatum followed if they continued to attack our besieged

2 forces, we will continue to attack Zagreb and destroy their cities."

3 In several media statements, Milan Martic admitted to having

4 ordered the attacks. For instance, in a radio interview on the 5th of

5 May, 1995, Milan Martic stated, and I quote once again: "That order was

6 given by me, personally, as a retaliation to Franjo Tudjman and his staff

7 for the order he had given to commit aggression against the Western

8 Slavonia."

9 Also on the 5th of May, 1995, in a meeting with the United Nations

10 Special Envoy, Yasushi Akashi, Milan Martic stated, in response to Yasushi

11 Akashi's condemnation of the attacks that: "Had I not ordered the rocket

12 attacks ... they would have continued to bomb our cities."

13 Milan Martic then proceeded to threaten to resume the attacks if

14 their conditions were not met. Milan Martic spoke of "massive rocket

15 attacks on Zagreb which would leave 100.000 people dead."

16 The Trial Chamber will now focus on the M-87 Orkan. This weapon

17 is a multi-barrelled rocket-launcher which launches non-guided rockets.

18 The primary use of the M-87 Orkan is to target soldiers and armoured

19 vehicles. The evidence shows that each rocket launched on Zagreb on the

20 2nd and 3rd of May, 1995, contained a cluster warhead loaded with 288

21 so-called bomblets. These bomblets are ejected at a height of 1.000

22 metres above the targeted area. Upon impact, each bomblet explodes and

23 releases 420 steel pellets. The lethal range of each pellet is 10 metres.

24 This means that each rocket releases around 120.000 pellets.

25 The maximum firing range is 50 kilometres, and at this distance

Page 11468

1 the weapon displays a targeting error of 1 kilometre in any direction.

2 The evidence shows that on the 2nd and the 3rd of May, 1995, the

3 M-87 Orkan was fired from the Vojnic area, near Slavsko Polje, which is at

4 the extreme of the weapon's range. The evidence shows that by virtue of

5 its characteristics and the firing range in this specific instance, the

6 M-87 Orkan was incapable of hitting specific targets. For these reasons,

7 the Trial Chamber has found that the M-87 Orkan is an indiscriminate

8 weapon, the use of which in densely popped civilian areas, such as Zagreb,

9 will result in the infliction of severe casualties.

10 The Defence has argued that there were military targets in Zagreb

11 at the time of the attacks on the 2nd and 3rd of May, 1995, including the

12 Ministry of the Interior, the Ministry of Defence, Zagreb airport, and the

13 Presidential Palace. In view of the characteristics of the M-87 Orkan,

14 the Trial Chamber has found that the presence or otherwise of military

15 targets in Zagreb is irrelevant. The Defence's argument has therefore

16 been dismissed.

17 By the 2nd of May, 1995, the effects of firing the M-87 Orkan on

18 Zagreb were known to those involved. Moreover, before the decision was

19 made to once again use this weapon on Zagreb on the 3rd of May, 1995, the

20 full impact of using such an indiscriminate weapon was known beyond doubt

21 as a result of the extensive media coverage on the 2nd of May, 1995, of

22 the effects of the attacks on Zagreb.

23 The Defence advances the argument that the attacks on Zagreb were

24 lawful reprisals under customary international law. It argues that the

25 attacks were carried out with the aim of putting an end to violations of

Page 11469

1 international humanitarian law committed by the Croatian military and

2 police forces, particularly during Operation Flash. The Defence submits

3 that this operation was a breach of the cease-fire agreement and conducted

4 without respect for the norms of international humanitarian law.

5 In the law of armed conflict, belligerent reprisals are acts which

6 would otherwise be unlawful but which are rendered lawful by the fact that

7 they are taken in response to a violation of that law committed by another

8 belligerent. As a drastic and exceptional measure, reprisals are subject

9 to strict conditions, which are well-established in customary law.

10 Reprisals may be used only as a last resort and only when all

11 other means have proven to be ineffective. They may only be undertaken

12 when a prior and formal warning has been given, which has failed to put an

13 end to the violations committed by the adversary. Moreover, the decision

14 to undertake reprisals may only be taken by the highest political or

15 military level. A further requirement is that reprisals must be

16 proportionate to the initial violation of the opposite party. The

17 reprisals must also cease as soon as they have been achieved. Lastly,

18 acts of reprisal must respect the laws of humanity and dictates of public

19 conscience. The Trial Chamber interprets this condition to mean that

20 reprisals must be exercised, to the extent possible, in keeping with the

21 principle of the protection of the civilian population in armed conflict

22 and the general prohibition of targeting civilians.

23 The Trial Chamber disagrees with the Defence and finds that the

24 evidence fails to show that the conditions for lawful reprisals have been

25 met. First, even if the Trial Chamber were to assume that the Croatian

Page 11470

1 forces had engaged in serious violations of international humanitarian law

2 during Operation Flash, the evidence shows that the shelling was not

3 carried out as a last resort, after all other means had been excluded --

4 exhausted, rather. Indeed, the evidence shows that peace negotiations

5 were ongoing during Operation Flash, until the 3rd of May, 1995.

6 Furthermore, no formal warning was given prior to the attacks that

7 reprisals would be carried out in reaction to the alleged violations

8 conducted during Operation Flash. The Trial Chamber cannot therefore find

9 that the shelling of Zagreb constituted a lawful reprisal. The Defence

10 argument has consequently been dismissed.

11 The Trial Chamber has found that Milan Martic's responsibility for

12 the attacks on Zagreb on the 2nd and 3rd of May, 1995, is most

13 appropriately described as ordering pursuant to Article 7(1) of the

14 Statute. Other modes of liability have therefore not been considered. In

15 order to reach this finding, the Trial Chamber has considered the

16 considerable evidence that Milan Martic from 1992 onwards considered

17 attacking Zagreb as a response to Croatian attacks on the RSK. The Trial

18 Chamber has also considered Milan Martic's repeated admissions in the

19 media that he ordered the attacks as well as the evidence that Milan

20 Martic and Milan Celeketic were not in favour of a peaceful solution to

21 Operation Flash. Milan Martic was also present when Milan Celeketic

22 ordered the shelling of Sisak. The Trial Chamber considers the totality

23 of the evidence to establish that Milan Martic was involved from the

24 beginning in the RSK's military response to Operation Flash.

25 The Trial Chamber has considered the evidence that according to

Page 11471

1 the RSK constitution, the President led the RSK Army in times of peace and

2 war, in accordance with the constitution and the decisions of the Supreme

3 Defence Council. Accordingly, any decision to shell Zagreb should have

4 been taken by the collegiate body of the Supreme Defence Council; however,

5 the evidence establishes beyond reasonable doubt that Milan Martic and

6 Milan Celeketic circumvented the Supreme Defence Council. In this regard,

7 the Trial Chamber has considered the evidence of Rade Raseta, Chief of

8 Security of the Main Staff of the RSK Army, that the decisions to attack

9 Zagreb on the 2nd and 3rd of May, 1995, were not taken by the Supreme

10 Defence Council but by Milan Celeketic and Milan Martic. This is also

11 supported by other evidence before the Trial Chamber.

12 In light of the totality of the evidence, the Trial Chamber has

13 found it established beyond reasonable doubt that Milan Martic ordered the

14 shelling of Zagreb on the 2nd and the 3rd of May, 1995.

15 The Trial Chamber will now turn to the matter of sentencing. Many

16 of the crimes proved in this case were committed with discriminatory

17 intent and the Trial Chamber considers that this is a factor to be taken

18 into consideration when assessing the gravity of the criminal conduct of

19 Milan Martic. Milan Martic has also been found guilty of the crimes of

20 deportation and forcible transfer. The Trial Chamber particularly notes

21 that the non-Serb population was subjected to widespread and systematic

22 crimes as a result of the coercive atmosphere in the SAO Krajina and the

23 RSK between 1991 and 1995. The scale and systematic nature of these

24 crimes are factors which the Trial Chamber considers to be of particular

25 gravity.

Page 11472

1 The Trial Chamber recalls that the majority of the crimes for

2 which Milan Martic has been found guilty were committed against elderly

3 people, persons held in detention, and civilians. The special

4 vulnerability of these groups of victims add to the gravity of the crimes.

5 The Trial Chamber recalls the effects of the crimes committed on

6 victims and their families and notes that virtually the entire Croat and

7 other non-Serb population was expelled from this area. Many victims had

8 their property looted and burnt. The Trial Chamber recalls in particular

9 the horrific injuries and the serious suffering inflicted on civilians as

10 a consequence of the indiscriminate attacks on Zagreb which Milan Martic

11 ordered. The impact and long-lasting effect of these crimes for which

12 Milan Martic is individually criminally responsible, including as a direct

13 perpetrator, rendered them especially grave.

14 In relation to aggravating circumstances, the Trial Chamber has

15 considered the fact that Milan Martic was one of the most important and

16 influential political figures. Milan Martic exercised absolute authority

17 over the MUP, and as President of the RSK, Milan Martic held the highest

18 political office and controlled the armed forces of the RSK. The Trial

19 Chamber considers that in holding such positions, Milan Martic was

20 obligated to prevent the commission of crimes and to ensure that all

21 inhabitants of the territories under his authority enjoyed respect for

22 human rights.

23 However, the evidence presented to the Trial Chamber proves beyond

24 reasonable doubt that Milan Martic abused his positions and that he,

25 through continuous and systematic efforts to create an ethnically Serb

Page 11473

1 territory, promoted an atmosphere of mistrust and fear between Serbs and

2 non-Serbs, in particular Croats. Lastly, the Trial Chamber considers that

3 the widespread criminal conduct which covered the entire SAO Krajina and

4 RSK territory during a period of more than four years serves as an

5 aggravating circumstance.

6 In relation to mitigating circumstances, the Trial Chamber recalls

7 that during the summer and autumn of 1991, Milan Martic instructed persons

8 involved in humanitarian assistance to treat Croat and Serb refugees

9 arriving from Drnis equally. The Trial Chamber further recalls Slobodan

10 Jarcevic's testimony that Milan Martic "demonstrated the nobility of his

11 character" by looking after refugees who arrived from Bosnia-Herzegovina

12 in 1994, despite the difficulties which the RSK was facing due to

13 international sanctions.

14 However, the Trial Chamber considers that even though there is

15 evidence showing positive traits in the character of Milan Martic and that

16 sporadic help was given by him to Croats and other non-Serbs, the effect

17 thereof is diminished by the fact that Milan Martic at all times relevant

18 for the crimes for which he has been found guilty held positions in which

19 he was able and obliged to take measures to address acts of violence. The

20 Trial Chamber recalls that in such a case sporadic benevolent acts or

21 ineffective assistance may be disregarded. Moreover, the Trial Chamber

22 has considered the fact that Milan Martic and his family were expelled and

23 displaced following Operation Storm to be a mitigating circumstance of

24 limited weight.

25 The Trial Chamber notes that Milan Martic evaded justice for

Page 11474

1 around seven years, in the knowledge that an indictment was issued against

2 him. The Trial Chamber therefore finds that the fact that Milan Martic

3 surrender in 2002 to the Tribunal, although constituting a mitigating

4 factor in this case, will be given only minimal weight.

5 The Trial Chamber has taken account of all relevant legal

6 considerations, the details of which are set forth in the written

7 judgement.

8 Mr. Martic, please rise.

9 This Trial Chamber, having considered all of the evidence and the

10 arguments of the parties, and based upon the factual and legal findings as

11 determined in the judgement, finds you, Milan Martic, not guilty of

12 Count 2: Extermination, a crime against humanity.

13 The Trial Chamber finds you, Milan Martic, guilty pursuant to

14 Article 7(1) of the Statute of the following counts:

15 Count 1: Persecutions, a crime against humanity;

16 Count 3: Murder, a crime against humanity;

17 Count 4: Murder, a violation of the laws or customs of war;

18 Count 5: Imprisonment, a crime against humanity;

19 Count 6: Torture, a crime against humanity;

20 Count 7: Inhumane acts, a crime against humanity;

21 Count 8: Torture, a violation of the laws or customs of war;

22 Count 9: Cruel treatment, a violation of the laws or customs of

23 war;

24 Count 10: Deportation, a crime against humanity;

25 Count 11: Forcible transfer, a crime against humanity;

Page 11475

1 Count 12: Wanton destruction of villages or devastation not

2 justified by military necessity, a violation of the laws or customs of

3 war;

4 Count 13: Destruction or wilful damage done to institutions

5 dedicated to education or religion, a violation of the laws or customs of

6 war;

7 Count 14: Plunder of public or private property, a violation of

8 the laws or customs of war;

9 Count 15: Murder, a crime against humanity;

10 Count 17: Inhumane acts, a crime against humanity;

11 Count 19: Attacks on civilians, a violation of the laws or

12 customs of war.

13 The Trial Chamber has found that the elements have been

14 established for murder and cruel treatment, respectively charged under

15 Counts 16 and Count 18, as violation of the laws or customs of war. As

16 these crimes are absorbed by the crime of attacks on civilians under Count

17 19, the Trial Chamber has only entered a conviction for the crime of

18 attacks on civilians.

19 The Trial Chamber sentences you to a single sentence of 35 years

20 of imprisonment. Pursuant to Rule 101(C) of the Rules, you are entitled

21 to credit for time spent in detention, which as of the date of this

22 judgement amounts to 1.855 days. You are also entitled to credit for such

23 additional time you may serve pending the determination of any appeal.

24 Pursuant to Rule 103(C) of the Rules, you shall remain in the custody of

25 the Tribunal pending finalisation of arrangements for your transfer to the

Page 11476

1 state where you shall serve your sentence.

2 The hearing is now adjourned.

3 --- Whereupon the Hearing adjourned at 10.17 a.m.