Tribunal Criminal Tribunal for the Former Yugoslavia

Page 11462

 1                           Thursday, 5 May 2011

 2                           [Rule 98 bis Judgement]

 3                           [Open session]

 4                           [The accused entered court]

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

 6             JUDGE ORIE:  Good morning to everyone in and around this

 7     courtroom.

 8             Madam Registrar, would you please call the case.

 9             THE REGISTRAR:  Good morning, Your Honours.  Good morning

10     everyone in and around the courtroom.  This is the case IT-03-69-T, the

11     Prosecutor versus Jovica Stanisic and Franko Simatovic.

12             JUDGE ORIE:  Thank you, Madam Registrar.

13             Before the Chamber will deliver its decision today, I'll first

14     address you, Mr. Stanisic.  We received a request from Mr. Jordash to

15     be -- not to be present, to be allowed not to be present today, and to be

16     represented by other members of the team.  Now, the Chamber has some

17     formal difficulties in allowing representation by not yet assigned

18     counsel.

19             First of all, do you agree to be unrepresented today?

20             THE ACCUSED STANISIC: [Interpretation] Your Honour, I do agree.

21             JUDGE ORIE:  Then the Chamber establishes that Mr. Scott and

22     Ms. Verwiel are present in court, so if there would be any need to

23     communicate with counsel not being present that you have the possibility

24     to do so.  Just address me.

25             Second, it's also on the basis of the character of today's

Page 11463

 1     session, which is limited, as a matter of fact, as far as matters stand

 2     now, to issuing a decision on an oral motion for acquittal by the

 3     Simatovic Defence, but under those circumstances and with the agreement

 4     of Mr. Stanisic, the Chamber accepts the Accused Mr. Stanisic not to be

 5     represented, although not being alone today in court.

 6             MR. MARTIN:  Thank you, Your Honour.

 7             JUDGE ORIE:  Then I move to the main subject of today's session.

 8     That is the oral delivery of a decision on the Simatovic Defence's oral

 9     motion for acquittal pursuant to Rule 98 bis.  As I said, the Chamber

10     will now deliver its decision on the Simatovic Defence's oral motion for

11     acquittal pursuant to Rule 98 bis.

12             The Chamber notes at the outset that the Stanisic Defence did not

13     present any Rule 98 bis submissions.  The decision of the Chamber,

14     therefore, relates only to the Accused Franko Simatovic.  However, given

15     the alleged roles and participation of the two accused within the joint

16     criminal enterprise, or JCE, charged in the indictment and the close

17     relationship said by the Prosecution to exist between the accused, the

18     Chamber will at times during its decision necessarily refer to evidence

19     relating to Jovica Stanisic.

20             The Chamber heard oral submissions from the Simatovic Defence on

21     the 7th of April, 2011, and submissions in response from the Prosecution

22     on the 11th of April, 2011.  In reaching its decision, the Chamber has

23     considered all submissions of the Simatovic Defence and the Prosecution.

24     The Chamber will first give a brief summary of those submissions.

25             The Simatovic Defence requested the Chamber to acquit the

Page 11464

 1     Accused Franko Simatovic on all counts of the indictment.  Its

 2     submissions may be found at transcript pages 11.300 up to 11.353.  The

 3     Defence argued that the Prosecution had failed to provide evidence

 4     showing that there was a plurality of persons working together with a

 5     common objective, and that Mr. Simatovic was one of those persons.

 6     According to the Defence, the Prosecution had also failed to show that

 7     there was a common objective amongst the alleged participants of the JCE.

 8     It had also failed to prove the intent of any of the alleged participants

 9     of the alleged JCE and that Mr. Simatovic would have shared that intent.

10             In relation to the alleged participation and knowledge of

11     Simatovic, the Defence argued that the Prosecution had not presented, and

12     I quote, "any concrete evidence about the acts or omissions on the part

13     of Simatovic in the context of the allegations contained in the

14     indictment."  Further, it submitted that there was no proof that

15     Simatovic knew of any crimes charged in the indictment.  In relation to

16     the role of the Serbian State Security Service, or the Serbian DB, in the

17     establishment of special units, including the Skorpions and

18     Arkan's Tigers, the Defence submitted that there was no proof that these

19     units at any point in time relevant to the indictment were under the

20     control of the DB of the Republic of Serbia.  The Defence clarified in

21     court on the 12th of April that by "no proof" it meant that the

22     Prosecution had not provided any proof which, even if it were to be

23     assessed in the most favourable light, could lead to a conviction.

24             The Prosecution submitted that the Simatovic Defence's motion for

25     acquittal must fail.  Its submissions may be found at transcript

Page 11465

 1     pages 11.355 up to and including 11.436.  The Prosecution submitted that

 2     it had presented relevant, probative, and consistent evidence in support

 3     of each count in the indictment and that it had met its burden at this

 4     stage of the proceedings.  Throughout its response, the Prosecution drew

 5     the Chamber's attention to particular evidence that, it submitted,

 6     demonstrated the existence of the alleged JCE and to the significant

 7     contributions made to the JCE by the Accused Simatovic.  In doing so, it

 8     also sought to highlight the close relationship between Mr. Stanisic and

 9     Mr. Simatovic and submitted that the two accused, and I quote, "must have

10     shared knowledge and discussed plans and functioned as a single cohesive

11     unit."

12             Rule 98 bis of the Tribunal's Rules of Procedure and Evidence

13     provides as follows, and I quote:

14             "At the close of the Prosecutor's case, the Trial Chamber shall,

15     by oral decision and after hearing the oral submissions of the parties,

16     enter a judgement of acquittal on any count if there is no evidence

17     capable of supporting a conviction."

18             Under the case law of the Tribunal, the Chamber must examine

19     whether there is evidence upon which a reasonable trier of fact could be

20     satisfied beyond a reasonable doubt of the guilt of the accused.  Thus,

21     if a reasonable Chamber could be satisfied beyond a reasonable doubt of

22     the guilt of an accused on the basis of the evidence adduced in relation

23     to a count, then the count must stand.  There must be sufficient evidence

24     for each element of the alleged crimes, and for one of the modes of

25     liability contained in the indictment.  The test would not be satisfied

Page 11466

 1     if there were no evidence.  If the Prosecution has presented evidence,

 2     that evidence is entitled to credence unless incapable of belief.  At

 3     this stage, the evidence should be taken at its highest for the

 4     Prosecution.  The Chamber therefore will not concern itself with issues

 5     of credibility or reliability unless a witness is so lacking in

 6     credibility and reliability that no reasonable Chamber could find him or

 7     her credible or reliable.

 8             The Chamber will now provide a summary of relevant parts of the

 9     indictment.

10             The indictment covers five counts of crimes allegedly committed

11     from at least the 1st of April, 1991, to the 31st of December, 1995.  The

12     areas covered by the indictment include the Serb Autonomous Region of

13     Slavonia, Baranja, and Western Srem, or SAO SBWS, both in Croatia, and

14     the -- I misread.  The areas covered by the indictment include the Serb

15     Autonomous Region of Krajina, or SAO Krajina, and the Serb Autonomous

16     Region of Slavonia, Baranja, and Western Srem, or SAO SBWS, both in

17     Croatia and the following municipalities in Bosnia-Herzegovina:

18     Bijeljina, Bosanski Samac, Doboj, Sanski Most, Trnovo, and Zvornik.

19             According to the indictment, Mr. Simatovic worked in various

20     positions within the Serbian DB and was the commander of the special

21     operations unit of the DB during the indictment period, under the

22     authority of Mr. Stanisic.

23             The first count of the indictment charges persecutions as a crime

24     against humanity.  The second and third counts respectively charge murder

25     as a crime against humanity and as a violation of the laws or customs of

Page 11467

 1     war as recognised by Common Article (3)(1)(a) of the Geneva Conventions

 2     of 1949.  The final two counts respectively charge deportation and the

 3     inhumane act of forcible transfer as crimes against humanity.

 4             The indictment alleges that the accused and others participated

 5     in a JCE, the objective of which was the forcible and permanent removal

 6     of the majority of non-Serbs, principally Croats, Bosnian Muslims and

 7     Bosnian Croats from large areas of Croatia and Bosnia-Herzegovina.  This

 8     objective was allegedly carried out through the commission of crimes

 9     charged in Counts 1 through 5.

10             According to the indictment, the accused's participation in the

11     JCE included directing and organising the financing, training, logistical

12     support and other substantial assistance or support to special units of

13     the Republic of Serbia DB and other Serb forces which were involved in

14     the commission of crimes in Croatia and Bosnia-Herzegovina during the

15     indictment period.  The indictment further charges the accused by his

16     acts and omissions with criminal responsibility for having planned,

17     ordered and/or otherwise aided and abetted in the planning, preparation,

18     and/or execution of these crimes.

19             In its legal characterisations, the Chamber adopts and applies

20     the Tribunal's consistent case law with respect to the definition of the

21     elements of the crimes and modes of liability charged in this case.  In

22     this decision, the Chamber will address the law more specifically only

23     when this is required to explain the Chamber's findings.

24             The volume of evidence before the Chamber and the character of

25     the 98 bis proceedings do not allow for a comprehensive discussion of the

Page 11468

 1     evidence in this decision.  The Chamber has, however, considered the

 2     evidence in its entirety.  The specific evidence that the Chamber will

 3     refer to in this decision is therefore merely a selection of what the

 4     Chamber has considered.

 5             In relation to the crimes charged, the Chamber has verified

 6     whether the evidence addresses all the elements of each of the crimes.

 7     Similarly, the Chamber has verified whether the evidence addresses all

 8     the requirements for criminal responsibility as charged for the

 9     Accused Simatovic.  Finally, in relation to each crime charged, the

10     Chamber has verified whether the evidence, taken at its highest for the

11     Prosecution, could lead a reasonable trier of fact to conclude, beyond a

12     reasonable doubt, both that the crime has been committed and that the

13     Accused Simatovic bears criminal responsibility for it.

14             The Chamber will first examine the crime base as alleged in

15     Counts 1 through 5 and determine whether there's sufficient evidence with

16     regard to each of the elements of the crimes to conclude that the counts

17     in that respect should stand.  The Chamber will then turn to the question

18     of the individual criminal responsibility of the Accused Simatovic.

19             The Chamber now turns to the general elements and jurisdictional

20     requirements that must be proven under Articles 3 and 5 of the Statute of

21     the Tribunal.  The Defence did not challenge these elements in its

22     Rule 98 bis submissions.  The Chamber notes that the Prosecution alleges

23     in the indictment that at all times relevant to the indictment, a state

24     of armed conflict existed in Croatia and Bosnia-Herzegovina.  Based on

25     the Chamber's review of the material before it, the Chamber considers

Page 11469

 1     that it supports the Prosecution's claim that an armed conflict existed

 2     at the time times relevant to the indictment.

 3             In examining the general elements of violations of the laws or

 4     customs of war, the Chamber has considered various incidents of murder.

 5     It will address this evidence shortly when discussing each count of the

 6     indictment.  The Chamber considers that the evidence before it, including

 7     the mentioned examples, indicates that the victims of these crimes were

 8     not taking active part in hostilities at the time of the offence -- at

 9     the time the offences were committed and that the murders were closely

10     related to the armed conflict.

11             Similarly, in examining the general elements of crimes against

12     humanity, the Chamber has considered incidents of alleged murder,

13     deportation, and forcible transfer.  This evidence will also be addressed

14     below.  The evidence before the Chamber in relation to the nature and the

15     number of these incidents, as well as the numbers of persons targeted and

16     their age and ethnicity indicates that these incidents were part of a

17     widespread and systematic attack on the civilian populations of the areas

18     specified in the indictment; and that the perpetrators must have known

19     that their acts were part of such an attack.  The chapeau requirements of

20     Articles 3 and 5 are thus met.

21             The Chamber will now turn to an examination of the individual

22     counts in the indictment.

23             In relation to Counts 2 and 3, there is evidence of murders

24     taking place during the indictment period and within the indictment

25     areas.  For example, with regard to the SAO Krajina, witness

Page 11470

 1     Ante Marinovic, a Croat from the Marinovici hamlet of Bruska, testified

 2     that on the evening of the 21st of December, 1991, he was home with his

 3     father, his brother, his uncle, and a Serb neighbour named Sveto Draca.

 4     They were playing cards.  At about 8.00 or 8.30 p.m., three soldiers

 5     wearing camouflage uniforms with Krajina milicija insignias entered the

 6     house and told the men to get up and to go outside.  The soldiers lined

 7     the men up against the wall on the outside of the house.  The soldiers

 8     shot the witness, his father and his brother.  Having fallen unconscious,

 9     the witness awoke to find his father and brother dead beside him.  The

10     witness had been shot seven times.  The witness walked about

11     five kilometres to his relatives' house in Bijeljina.  From there he was

12     taken by ambulance to a field hospital in Benkovac and later treated at

13     the hospital in Knin.  In addition to the persons killed near the house,

14     six other Croats were killed in Bruska on the 21st of December, 1991, all

15     with the surname of Marinovic.  The witness learned this at the hospital

16     in Knin from the mother of witness Jasna Denona, nee Marinovic, who had

17     also survived the attack.

18             In relation to the SAO SBWS, witness Luka Sutalo testified that

19     on the 25th of August, 1991, he was imprisoned in the Dalj police

20     station.  Sutalo testified about the frequent beatings and transfer of

21     prisoners to and from the prison during the course of his detention.  He

22     testified that the majority of the prisoners were ethnic Croats and

23     Hungarians, and one detainee was a Bosniak living in Croatia.  Sutalo saw

24     Arkan at the prison on a few occasions.  On one occasion, Arkan watched

25     while three men in camouflage uniform beat several prisoners with iron

Page 11471

 1     chairs until the chairs fell apart.  On the 22nd of September, 1991,

 2     Sutalo was released by Goran Hadzic and two other men, all three of them

 3     wearing camouflage uniforms.  One other prisoner, Slavo Palinkas, was

 4     released half an hour after Sutalo.  Outside the prison, Sutalo saw Arkan

 5     with 30 or 40 men, who greeted Hadzic with honours.  When Palinkas

 6     returned later that same day with cigarettes for the other prisoners, a

 7     policeman told him that no prisoners remained and that they had had their

 8     final cigarettes.  The next morning, 23rd September 1991, a Croat woman

 9     told Sutalo that the other prisoners had been shot about one hour after

10     Sutalo's release.  The bodies of 11 men who had been detained with Sutalo

11     were found in a mass grave in Celija near Vinkovci.  The Chamber also

12     refers to the evidence of Witness JF-015 in relation to these killings.

13             In relation to Bosnia and Herzegovina, Witness JF-008 testified

14     that on the 2nd of June, 1992, he and villagers from Dragalovci were

15     rounded up by Bosnian Serb soldiers and policemen and brought to the

16     District Prison in Doboj.  In late June 1992, the witness and other

17     detainees were transferred to Percin's Disco in Vila, just outside Doboj.

18     The disco was very near the line of separation with the Army of

19     Bosnia-Herzegovina.  Between 312 and 320 people, mostly Bosniaks and

20     Croats, were detained in the disco building, which was guarded by

21     policemen from Doboj.  While detained at the disco, Witness JF-008

22     observed a group of about 20 soldiers wearing camouflage uniforms and

23     red berets provide a daily training to about 100 members of local units.

24     On the 12th of July, 1992, three soldiers in green camouflage uniforms

25     and red berets entered the prison camp and forced approximately 50 of the

Page 11472

 1     detainees outside.  The witness was not among the detainees forced

 2     outside, but he was later told what happened by other detainees who were

 3     forced outside.  The witness learned that one of the soldiers wearing a

 4     red beret placed a pistol against the head of detainee Ante Kalem and

 5     fatally shot him as a warning to the others.  The remaining detainees

 6     were brought to the combat line where they were used as human shields.

 7     Many were killed when caught in the cross-fire and only about half

 8     returned to Percin's Disco.

 9             The Chamber also received evidence of the killing of six Muslim

10     men in Trnovo in July 1995, by members of the Skorpions Unit.  The

11     six men had been captured in Srebrenica.  The Chamber refers here to the

12     evidence of Witness JF-024 and to Exhibit P2161, which is a video showing

13     the six men being shot by members of the Skorpions Unit.

14             The Chamber considers that the evidence before it, including the

15     above examples, addresses all the elements of murder as a violation of

16     the laws or customs of war and murder as a crime against humanity.  In

17     particular, the Chamber notes that the victims of the crimes described

18     were predominantly of Croat, Bosnian Croat, Bosnian Muslim, and other

19     non-Serb ethnic origin.  At this stage, therefore, there is sufficient

20     evidence for Counts 2 and 3 to stand.  As mentioned, the Chamber will

21     later turn to the question of whether there is sufficient evidence with

22     respect to Simatovic's individual responsibility for the crime of murder.

23             In relation to Counts 4 and 5, there is evidence of deportation

24     and forcible transfer of Croats, Bosnian Muslims, Bosnian Croats, and

25     other non-Serbs within the SAO Krajina, SAO SBWS, and Bosnia-Herzegovina

Page 11473

 1     during the indictment period.  For instance, in relation to the

 2     SAO Krajina, Witness Bosko Brkic stated that he was living with his

 3     family in Skabrnja when, on the 18th of November, 1991, the village was

 4     attacked by Serb forces led by the JNA.  Eight of the witness's family

 5     members died as a result of the attack and the subsequent occupation of

 6     the village.

 7             The witness described how on the day of the attack he and other

 8     villagers hid wherever they could find a safe place, and he saw JNA tanks

 9     from a distance of about 100 metres.  The following night, the witness

10     and approximately 100 villagers fled for Prkos in the municipality of

11     Zadar.  By the time he had left the village, the witness heard that some

12     villagers had been executed.  Zorka Brkic, the witness's aunt, described

13     to the witness how her husband, son, and daughter-in-law were lined up

14     against the wall and shot by men in JNA uniforms.  Although the majority

15     of the villagers had fled Skabrnja, the witness knew of approximately

16     six persons who remained there after the 19th of November, 1991.  These

17     included the witness's elderly parents who had stayed behind as the

18     witness's father was confined to a wheelchair and unable to leave.  They

19     told the witness that every day Chetniks, as it was said, would threaten

20     to kill them.  On the 11th of March, 1992, the witness's parents were

21     found dead by two villagers, who subsequently also fled the village.  The

22     witness's parents had been shot.  The witness stated that in the months

23     following the attack, the village was looted and burned, and by the

24     1st of December, 1992, it had been completely destroyed.

25             The Chamber has also taken judicial notice of adjudicated facts

Page 11474

 1     from the Martic case in relation to, inter alia, intensive shelling of

 2     Skabrnja on the morning of the 18th of November, 1991; firing by JNA

 3     tanks on private houses, the Church of the Assumption of the Virgin, and

 4     the school in Skabrnja; and killings of civilians on the

 5     18th of November, 1991, by members of local paramilitary units who

 6     participated in the attack on Skabrnja together with other SAO Krajina

 7     forces.

 8             Witness Slobodan Lazarevic testified that in October or

 9     November 1991, the JNA attacked the town of Cetingrad.  Lazarevic

10     explained that the JNA had considered two options in respect of the

11     attack, the first being to encircle the town and then use saturation

12     bombing in order to "clean out the city."  And the other option was to

13     shell the town in such a way as to leave open a corridor through which

14     the villagers could leave.  Lazarevic testified that the second option

15     had be accepted.  Immediately after the attack had commenced, refugees

16     from Cetingrad started to arrive in Velika Kladusa in Bosnia-Herzegovina.

17             In relation to the SAO SBWS, the Chamber heard evidence that

18     Arkan and his men came to Erdut in late September or early October 1991.

19     One witness testified about the arrest of the witness's family members

20     and neighbours on the 9th of November, 1991, by Serb soldiers dressed in

21     three types of uniform, those of the JNA, the Krajina police, and

22     Arkan's men.  The witness was later informed that the arrested persons

23     were in Arkan's hands.  The witness did not see the arrested persons

24     again.

25             In the following months, a member of the witness's family was

Page 11475

 1     badly beaten on two occasions by a man in camouflage uniform.  In

 2     addition, soldiers looted the family home and painted the Serbian

 3     Cyrillic symbols on its inner walls.  After the disappearance of the same

 4     family member, the witness became very afraid and decided to leave Erdut.

 5     As the witness was preparing to leave, a Serb neighbour offered to assist

 6     the witness on condition the witness sign a paper to the effect that the

 7     witness was leaving all the family's property to him and his wife.  The

 8     witness had no choice but to sign the paper as there was no one else to

 9     provide assistance.  The witness left Erdut and the Serb-controlled area.

10             Witness Stana Albert stated that she lived with her 91-year-old

11     mother in the village of Erdut when Serb forces entered the village on

12     the 1st of August, 1991.  On the 9th of April, 1992, the witness, her

13     mother, and other villagers were expelled from Erdut by Serb forces.  On

14     that day, a man in civilian clothes and another man, who was armed and in

15     uniform, entered the witness's house.  The man in civilian clothes put a

16     knife to the witness's throat and a gun to her head while the one in

17     uniform ransacked the room and found the witness's savings.  The witness

18     and her mother were forced outside and put onto a bus.  The witness

19     recognised the bus driver as a Serb named Jovan Teodorovic.  There was

20     one armed soldier and about 30 other villagers on the bus.  The bus

21     travelled to Sarvas in Osijek municipality, near the Serb and Croat

22     separation line.  It was dark when the villagers were told to get off the

23     bus and walk towards the Croat soldiers.  At that time, shelling started.

24     As part of the road was mined, the villagers had to walk in the ditch

25     next to the road.  One elderly woman fell down and could not walk

Page 11476

 1     anymore.  The witness heard that her body was found the next day.  Croat

 2     soldiers came to help the villagers, and the witness finally made it to

 3     Osijek where she stayed with relatives.  In April 1998, the witness

 4     returned to her house in Erdut.

 5             Witness C-1175 gave evidence that after the fall of Vukovar in

 6     November 1991, the JNA brought a large number of refugees to Dalj in

 7     buses and trucks.  Women who were brought to Dalj were taken to the

 8     Red Cross building where they were debriefed, registered, and transferred

 9     to the Dalj cinema for overnight accommodation.  The next day they were

10     sent by buses to Serbia.  Some men were also taken to the Dalj cinema,

11     from where they were transported out of the region.  Other men, however,

12     were taken to the Territorial Defence prison.

13             In relation to Bosnia-Herzegovina, one witness gave evidence that

14     after the fall of Zvornik in April 1992, the village of Kozluk was

15     totally surrounded by Serb forces.  Barricades were set up around the

16     village by paramilitary groups and local Serbs.  On the 26th of June,

17     1992, a large number of tanks and other military vehicles arrived in

18     Kozluk.  The Muslim villagers were told to assemble in front of the

19     cultural centre and that they had to leave Kozluk within an hour.  There

20     were Serb soldiers in front of every house, and the witness estimated

21     there were 3.000 soldiers in the village from the army, paramilitary

22     units, the Territorial Defence, and local police.  The soldiers were

23     shooting in the air and shouting at the Muslim villagers, and they set

24     fire to houses and stables.  They pushed the villagers towards the centre

25     of the village, and some villagers were wounded.  At the cultural centre,

Page 11477

 1     the villagers were forced to sign statements that they were giving up

 2     their property.  The villagers then boarded numerous buses and trucks,

 3     which travelled in convoy to Loznica in Serbia, escorted by police and

 4     military vehicles.  The witness testified that over 1800 persons were

 5     expelled from Kozluk and the neighbouring village of Skocic.  From

 6     Loznica, the convoy continued to Ruma in Serbia, where the Muslims

 7     boarded a train and were transported to a refugee camp in Subotica.

 8             The Chamber considers that the evidence before it, including the

 9     above examples, addresses all of the elements of the crimes against

10     humanity of deportation and inhumane acts consisting of forcible

11     transfer.  Again, the Chamber notes that the victims of the crimes

12     described were predominantly of Croat, Bosnian Croat, Bosnian Muslim, and

13     other non-Serb ethnic origin.  The Chamber concludes that, at this stage,

14     there is sufficient evidence of these crimes for Counts 4 and 5 to stand.

15     The Chamber will turn below to the question of whether there is

16     sufficient evidence with respect to Simatovic's individual responsibility

17     for the crimes of deportation and inhumane acts consisting of forcible

18     transfer.

19             The previously discussed crimes of murder, deportation and

20     forcible transfer also constitute the underlying acts of the crime of

21     persecution alleged in Count 1 of the indictment.  The Chamber considers

22     that there is sufficient evidence of all elements of the crime of

23     persecution, including the requirement that the underlying acts be

24     carried out on discriminatory grounds, for Count 1 to stand.

25             As a general remark, the Chamber emphasises that it has given but

Page 11478

 1     a few examples of the evidence before it in relation to crimes committed

 2     in the territories of the SAO Krajina, the SAO SBWS, and Bosnia and

 3     Herzegovina from 1991 to 1995.  The Prosecution led sufficient evidence

 4     to indicate that units who were involved in the commission of the crimes

 5     charged included the Milicija Krajina, police units commanded by

 6     Milan Martic, the Skorpions, Arkan's men, and the Red Berets.  The

 7     Chamber will address the alleged link between these units and the accused

 8     later in this decision.

 9             Having found a sufficient evidentiary basis, under the

10     aforementioned Rule 98 bis standard of review of evidence, for the crimes

11     charged in each and all counts of the indictment, the Chamber now turns

12     to the responsibility of Simatovic for these crimes.

13             The Chamber will examine the evidence with regard to the mode of

14     liability of participation in a joint criminal enterprise.  As set out in

15     the case law of the Tribunal, the elements of this mode of liability are

16     a plurality of persons, a common objective which amounts to or involves

17     the commission of a crime provided for in the Statute, and the

18     participation of the accused in the objective's implementation.  The

19     contribution of an accused need not have been substantial or necessary to

20     the achievement of the common objective.  However, it should at least be

21     a significant contribution to the crimes forming part of the common

22     objective.

23             The mens rea required is that the participants in the JCE shared

24     the intent to achieve the common objective through the commission of the

25     statutory crimes -- crime or crimes.  This is what in the case law is

Page 11479

 1     referred to as the first form of JCE, and the Prosecution has charged the

 2     accused with this mode of liability with regard to Counts 1 through 5 of

 3     the indictment.  In the alternative, in relation to the crimes of

 4     persecution and murder, the Prosecution has also charged the accused with

 5     the third form of JCE.  The mens rea required with respect to this charge

 6     is that the resulting crime or crimes were a natural and foreseeable

 7     consequence of the execution of the JCE and that the accused was aware of

 8     this and participated with that awareness.

 9             The Chamber considers that there is sufficient evidence of a JCE

10     between the accused and others named in the indictment.  In relation to

11     the first two elements of the JCE, the Chamber considered evidence of the

12     alleged participants in the JCE agreeing upon and/or discussing a common

13     objective, or otherwise manifesting its existence, which amounts to, or

14     involves, the commission of the alleged crimes.  The Chamber also

15     examined the evidence relating to the commission of these crimes in the

16     indictment areas during the relevant time periods.  The Chamber then

17     considered whether this evidence allows, on its own or together with

18     other evidence, for an inference that the JCE existed.

19             The Chamber received evidence, Exhibit P940, that as of

20     October 1991, alleged JCE member Karadzic openly discussed that the

21     separation of Bosnia and Herzegovina from Serbia should be prevented

22     through the, and I quote, "through the extinction" of the Bosnian

23     Muslims, if need be.  The Prosecution led evidence -- also led evidence

24     of a telephone conversation in January 1992 between Stanisic and

25     Karadzic.  This is Exhibit P690.  In it, Karadzic is reported to have

Page 11480

 1     said that the Croats and Serbs could, and I quote, "resolve all their

 2     contentious issues in a month or two" through, and I quote again,

 3     "elasticity and goodwill."  Alternatively, the Croats would be in, and I

 4     again quote, "for 30 years of torture.  With the Blue Helmets, with

 5     disagreements, with all sorts of things."  Stanisic then responded, and I

 6     quote again, "With killings," and then Karadzic confirmed that.

 7             The Chamber received evidence of an a Prosecution insider witness

 8     who drew a map showing which areas in the SAO SBWS were to be brought

 9     under Serb control.  Witness evidence relating to 1991 indicates that its

10     underlying aim was, and I quote again, "to link up" Serb territories and

11     that this aim was to be achieved by driving out the Croat population from

12     villages in the SAO Krajina and the SAO SBWS.  See the evidence of JF-032

13     and JF-039.

14             The Chamber received evidence of a meeting held on the 13th and

15     the 14th of December, 1993, in Belgrade, Exhibit P2532, which was

16     attended by, inter alia, Slobodan Milosevic, Radovan Karadzic,

17     Momcilo Perisic, Momcilo Krajisnik, Ratko Mladic, Radovan Stojicic, also

18     known as Badza, and the Accused Stanisic.  During this meeting Karadzic

19     discussed the strategic objective of being, and I quote again "separated

20     from the Muslims and Croats" in areas of Croatia and Bosnia-Herzegovina

21     so that, and this is a quote again, that "unification with Serbia" would

22     be possible in these areas.  It appears that Stanisic presided over this

23     meeting and gave comments on the deployment of units so that the

24     aforementioned goal could be accomplished.

25             On the 5th of July, 1994, Stanisic sent a letter to members of

Page 11481

 1     the Ministry of the Interior, the MUP, of the Republika Srpska Krajina,

 2     Exhibit P2667, in which he wrote, and I again quote:

 3             "We are now entering the decisive phase of the fight to achieve

 4     the common goals of all the Serbian lands, more determined and prepared

 5     than ever before."

 6             A year later, Martic wrote a similar telegram to Stanisic,

 7     Exhibit P995, regarding the joint efforts for, and I quote again, "the

 8     creation of a unified Serbian State."

 9             The Chamber has already made findings on the various counts of

10     the indictment under the standard of review for Rule 98 bis.  As

11     indicated earlier, there is evidence that many crimes were committed

12     throughout the indictment period by Serb forces.  These crimes were aimed

13     at permanent removal of non-Serbs in regions of the SAO Krajina,

14     SAO SBWS, and Bosnia and Herzegovina and took place within the context of

15     a widespread and systematic attack against Croat, Bosnian Croat,

16     Bosnian Muslim, and other non-Serb populations.

17             Further, the Chamber considered the evidence of expert witnesses

18     Radic and Tabeau in relation to large population shifts within these

19     regions from 1991 onwards.  According to expert Anna-Maria Radic, in 1991

20     alone, approximately 220.000 Croats had been moved from Croatian

21     territories.  Witness Ewa Tabeau gave testimony on the population shifts

22     occurring in the Republika Srpska and the Federation of Bosnia and

23     Herzegovina.  For example, she indicated that the Muslim population in

24     the Republika Srpska municipalities of Bijeljina, Bosanski Samac,

25     Zvornik, Doboj, and Sanski Most decreased from 81.693 in 1991 to 2.038 in

Page 11482

 1     1997, indicating a decrease in the Muslim population of 95.3 per cent.

 2     At the same time, the number of Serbs in these municipalities increased

 3     substantially.

 4             The Chamber considers that all of the evidence sufficiently

 5     supports a conclusion that there was a common criminal plan or purpose to

 6     permanently remove the Muslims and Croats and other non-Serbs from areas

 7     in Croatia and Bosnia-Herzegovina through the commission of murder,

 8     deportation, forcible transfer and persecution.

 9             The Chamber will now turn to the participation of Simatovic in

10     the implementation of that criminal objective.

11             In relation to the SAO Krajina, the Chamber heard evidence about

12     the setting up of a special operations unit of the Serbian DB in 1991.

13     The Prosecution led evidence that in March 1991, Slobodan Milosevic, and

14     I quote, "ordered the mobilisation of reserve police forces" and that

15     preparations were ongoing to create new police forces that were able to

16     defend, and I quote again, "the interests of the Serbian people outside

17     Serbia."  I refer to Exhibit P975.

18             The Chamber has examined this evidence in the context of other

19     evidence led by the Prosecution.  On the 4th of May, 1991, a special

20     operations unit of the Serbian DB was set up, which appears to have had

21     this very purpose.  The Chamber refers here to Exhibit P61, where the

22     Accused Simatovic, celebrating the unit's anniversary in the presence of

23     alleged JCE members Slobodan Milosevic, the Accused Stanisic and others,

24     gives a speech describing the unit's purpose and mode of operations.

25     Simatovic described how the unit worked in complete secrecy and was

Page 11483

 1     tasked, and I quote, "to protect national security in circumstances where

 2     the existence of the Serbian people was directly jeopardised throughout

 3     its entire ethnic area."  Simatovic stated that from the

 4     12th of October, 1991, the special operations unit, and I quote again,

 5     "provided important support in the liberation of all areas of the

 6     Republic of Serbian Krajina."  The Chamber notes that this included the

 7     Kostajnica area.  Simatovic further recalled how, under the auspices of

 8     the special operations unit, 26 training camps were set up in 1991 to

 9     train, and I quote again, "Special Police Units of the VRS and the

10     SAO Krajina."  The first of these training camps, which the

11     Accused Simatovic enumerates in his speech, was set up in Golubic.

12             The Chamber heard evidence that many men would eventually be

13     trained at Golubic.  In general, between 100 and 300 trainees were

14     present at the Golubic camp at any one time, and between 3.000 and

15     5.000 men passed through there in total.  See Exhibit P1000.  The

16     Prosecution led evidence that this training camp was funded by the

17     Serbian DB and that the Accused Stanisic and Simatovic, in their capacity

18     as Serbian DB officials, ensured training camps would receive the

19     necessary material and financial means.  I refer here to Exhibit P978.

20     Evidence was also led that as of mid-1991, Special Police Units under

21     Milan Martic's command, known as Martic's Police or Milicija Krajina,

22     started receiving military training, uniforms and equipment at the

23     Golubic training camp.  This includes Exhibit P998.

24             In the relation to the Golubic camp, one witness gave evidence

25     that Milan Martic had told him that Simatovic, who was often referred to

Page 11484

 1     as Frenki, "would take care of everything, money, clothes, vehicles,

 2     et cetera," and he specified that Simatovic "took care of paying the

 3     salaries for everyone involved with Golubic."

 4             The text I just pronounced were two quotes of this evidence.

 5             Other witnesses also testified that Milan Martic answered

 6     directly to the Accused Stanisic.

 7             The Chamber heard evidence that in August 1991, a select group

 8     known as "the original 28" who had trained at Golubic was told by

 9     Simatovic that they would be an anti-terrorist platoon who would serve

10     as, and I quote, "protecters of Serbia" by acting as trainers in camps

11     and engaging in anti-terrorist operations.  See Exhibits P998 and P1000.

12     Evidence was also led that this unit was later placed under the direct

13     command of Stanisic and Simatovic and that some of its first members were

14     Zivojin Ivanovic, Raja Bozovic, Dragoljub Filipovic, Riki Subotic,

15     Orlovic, and Zoran Rajic.  Evidence was also presented indicating that

16     these original members of the unit would later train many others and take

17     up leading roles in various units which feature in the evidence under

18     different names such as the Knindzas, the Red Berets, the JATD, and the

19     JSO.  At this stage of the proceedings, the evidence supports a

20     conclusion that the special operations unit originally started out under

21     the name of Frenki's men and later became known as the Red Berets or

22     JATD.  I should have read that the evidence supports a conclusion that it

23     started under this name, Frenki's men and later became known as the

24     Red Berets or JATD.  My emphasis was wrong.

25             Either late 1995 or early 1996, the unit continued under the name

Page 11485

 1     JSO, which stands for Special Operations Unit.  The evidence supports the

 2     conclusion that the unit was under the overall command of the

 3     Accused Simatovic, who in turn was under the direct supervision of the

 4     Accused Stanisic.

 5             Several witnesses gave evidence supporting the conclusion that

 6     the Serbian DB played a substantial role in the events that occurred in

 7     the SAO Krajina.  They described the existence of two special command

 8     structures existing in the SAO Krajina at the time, both headed by

 9     Milosevic.  In one command structure, Stanisic, as head of the Serbian

10     DB, would command Krajina police units, special DB units, and volunteer

11     units.  Another line of command would go through the JNA.

12             In relation to the SAO SBWS, the Chamber received evidence that

13     Stanisic and Simatovic were already present in this area before the

14     charged crimes occurred, particularly in the area of Vukovar.  In this

15     respect, the Chamber refers to the evidence of Witness JF-032 and JF-033.

16     It also heard evidence that in late 1991 and early 1992, the Red Berets,

17     also referred to in this context as JATD, set up two training camps at

18     Ilok and Tito's Castle in the area of the SAO SBWS.  See also P61.  The

19     evidence supports a conclusion that the JATD or Red Berets at Ilok and

20     Tito's Castle were under the overall control of Franko Simatovic.  There

21     is evidence that members of the JATD from Tito's Castle came to Grabovac

22     in May 1992 and took a number of civilians from Grabovac in their van,

23     who then disappeared.

24             The Chamber also heard evidence indicating that key actors who

25     played a role in the crimes committed in the SAO SBWS, such as

Page 11486

 1     Radoslav Kostic, Ilija Kojic, and Radovan Stojicic answered to

 2     Jovica Stanisic.

 3             The Chamber already referred to evidence on the involvement of

 4     Arkan's men in relation to crimes committed in Dalj and Erdut.  It

 5     received evidence that as early as May 1991, Arkan directly answered to

 6     Jovica Stanisic.  The evidence shows that between 1991 and 1995, a

 7     relationship was maintained between Arkan and the Serbian DB.  Evidence

 8     relating to events in 1995 indicates that there was direct and close

 9     co-ordination between Simatovic and Arkan on the deployment of Arkan's

10     men.

11             In relation to Bosnia-Herzegovina, the Chamber received evidence

12     that Red Beret members who were trained at the Ilok and Mount Ozren

13     training camps committed some of the crimes charged at Doboj and

14     Bosanski Samac.  There is evidence that these Red Beret members answered

15     directly to Franko Simatovic and that Simatovic personally briefed them

16     at their training camp in 1992 while wearing a Red Beret.  See the

17     evidence of Witness JF-047.

18             In relation to crimes committed by the Skorpions in Trnovo in

19     1995, the Prosecution led evidence that the Skorpions Unit received

20     ammunition and supplies through the training camp in Ilok and that

21     members of this unit received their salaries through JCE members.  I

22     refer to P2146.  Dejan Sliskovic testified that the commander of the

23     Skorpions Unit was subordinated to Red Beret member Zoran Rajic and that

24     Rajic, who one witness described as Simatovic's right hand, ultimately

25     answered to Jovica Stanisic.

Page 11487

 1             In this respect, the Chamber also heard evidence of a meeting

 2     held in 1995 at the Serbian MUP in Belgrade at which it was discussed

 3     that Arkan's men, the Skorpions and another unit should be sent to assist

 4     the VRS in Trnovo in June 1995.  It appears from the evidence that

 5     Arkan's men were indeed sent to assist an operation in June 1995 near the

 6     Treskavica/Trnovo front and that the Accused Simatovic had personally

 7     requested Arkan to do so.  The Chamber refers to Exhibits P1642 and P1626

 8     and witness evidence in this regard.

 9             Lastly, the Chamber received evidence that all three

10     aforementioned units were at the Trnovo front on behalf of the

11     Serbian MUP and that the operation was headed by someone who ultimately

12     answered to Stanisic.  See P1698.  One witness testified that after the

13     Trnovo killings had occurred, he saw Franko Simatovic at the Skorpions'

14     headquarters in Djeletovci.

15             Taking the evidence at its highest, the Chamber concludes that

16     there is sufficient evidence to establish the participation of the

17     Accused Simatovic in the JCE, which included directing and organising the

18     financing, training, logistical support and other substantial assistance

19     or support to special units of the Serbian DB and other Serb forces which

20     were involved in the commission of the crimes charged.  As mentioned

21     earlier, these included the Milicija Krajina, police units commanded by

22     Milan Martic, the Skorpions, Arkan's men, as well as the Red Berets, also

23     referred to at different times as Frenki's men, the JATD, and the JSO.

24     The evidence supports a conclusion that Simatovic closely co-ordinated

25     with the Accused Stanisic on these matters.  The Chamber concludes that

Page 11488

 1     Simatovic's participation in the JCE amounted to a significant

 2     contribution to the crimes charged in Counts 1 through 5.  The Chamber

 3     further concludes that the evidence sufficiently establishes that the

 4     Accused Simatovic intended the commission of these crimes.

 5             In conclusion, the Chamber considers that the Accused Simatovic

 6     has a case to answer on all counts of the indictment.  The motion for

 7     acquittal is therefore denied.

 8             This concludes the Chamber's decision on Simatovic's Defence's

 9     oral motion for acquittal pursuant to Rule 98 bis.

10             Just assuming that there are no other procedural issues which

11     need to be urgently raised, the Chamber will adjourn.  We will resume on

12     Tuesday, the 14th of June, the courtroom to be announced, when the

13     Pre-Defence Conference will take place as matters stand now.  We stand

14     adjourned.

15                           --- Whereupon the Rule 98 bis Judgement adjourned

16                           at 10.20 a.m., to be reconvened on Tuesday,

17                           the 14th day of June, 2011