Motion Hearing (Open Session)Page 1
1 Wednesday, 28 February 2007
2 [Motion Hearing]
3 [Open session]
4 [The accused Gotovina entered court]
5 --- Upon commencing at 2.19 p.m.
6 JUDGE MOLOTO: Mr. Registrar, would you please call the case.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case
8 IT-06-90-PT, the Prosecutor versus Ante Gotovina et al.
9 JUDGE MOLOTO: Thank you very much.
10 This session this afternoon, let me explain that I am presiding
11 today simply because I am Pre-Trial Judge. Today's session is at the
12 instance of General Gotovina's Defence team, who asked to be given an
13 opportunity to give oral argument in addition to or to supplement their
14 written motion on the question of jurisdiction.
15 May we hear the team, please -- before that, can we get the
16 appearances.
17 MR. KEHOE: Yes, Your Honour, good afternoon. On behalf of
18 General Gotovina, Greg Kehoe, Luka Misetic, and Professor Payam Akhavan,
19 and assisting behind Professor Akhavan is Jelena Madunic.
20 JUDGE MOLOTO: Thank you very much.
21 Prosecution.
22 MR. TIEGER: Good afternoon, Mr. President, Your Honours. Alan
23 Tieger, Laurel Baig, Michelle Jarvis for the Prosecution, assisted by case
24 manager, Donnica Henry-Frijlink.
25 JUDGE MOLOTO: Thank you very much.
1 Any appearances for Mr. Cermak?
2 Any appearances for Mr. Markac?
3 MR. SEPAROVIC: [Interpretation] Your Honour, good day. I am
4 Miroslav Separovic, Attorney-at-law, and together with us is Goran
5 Mikulicic and our case manager.
6 JUDGE MOLOTO: Thank you very much.
7 I see there is an accused in the court. Is that Mr. Gotovina?
8 MR. KEHOE: It is, Your Honour.
9 JUDGE MOLOTO: General Gotovina, can you hear me in the language
10 you understand?
11 THE ACCUSED GOTOVINA: [Interpretation] Yes, I can, Your Honour.
12 Thank you.
13 JUDGE MOLOTO: Thank you very much.
14 Yes, Mr. Kehoe.
15 MR. KEHOE: Your Honour, at this time, if we ought to -- I assume
16 Your Honour wants to commence discussion on this matter.
17 JUDGE MOLOTO: We do.
18 MR. KEHOE: And I would like to turn it over to Professor Akhavan
19 for the presentation of on the behalf of General Gotovina.
20 JUDGE MOLOTO: Professor Akhavan.
21 MR. AKHAVAN: Mr. President -- Mr. President, distinguished
22 members of the Tribunal. It is an honour and privilege to appear before
23 you today on behalf of General Gotovina. The essential argument of our
24 motion is very simple. The Prosecution cannot accuse General Gotovina of
25 crimes against humanity while disregarding the laws of war.
Wednesday, 28 February 2007Case No. IT-06-90-PT
Motion Hearing (Open Session)Page 1
Gotovina Defence Submissions
1 The Prosecution cannot ask the Tribunal to re-write customary law,
2 to compensate for the inadequacies of its case. Having initially argued
3 that the laws of war are inapplicable, the Prosecution's second response
4 now argues that humanitarian law is applicable but only to a limited
5 extent. But the Prosecution, once again, completely disregards contrary
6 ICTY jurisprudence and its own contrary legal position prior to this case.
7 The Prosecution's core theory in the indictment is that General
8 Gotovina was part of a joint criminal enterprise to ethnically cleanse
9 Krajina Serbs through mass deportation. This deportation campaign was
10 allegedly executed in two phases, before and after the restoration of
11 Croatian state authority over the Krajina.
12 It is alleged that during Operation Storm psychological warfare
13 and the shelling of civilians resulted in the mass exodus of Serbian
14 civilians. It is further alleged that upon successful conclusion of
15 Operation Storm and the collapse of the Republika Srpska Krajina, the
16 return of civilians was discouraged through Croatian colonisation and the
17 destruction or pillage of Serbian property. It is also asserted that
18 General Gotovina is liable for murder and cruel treatment merely because
19 such crimes were a possible consequence of the joint criminal enterprise,
20 even if they were not subjectively predictable to him.
21 The fundamental flaw of this theory is that the Prosecution
22 unilaterally eliminates an essential element of deportation as defined by
23 Article 49 of the 4th Geneva Convention. The indictment does not state
24 anywhere that the alleged victims of deportation were in the hands of
25 Croatian forces in territory under Croatian control.
1 The Prosecution's second response openly argues that this argument
2 of Article 49 is inapplicable to crime against humanity and that alleged
3 shelling of civilian areas was a modality of deportation. If the
4 Prosecution is correct, the Tribunal has jurisdiction over the
5 indictments; but if the Prosecution is not correct, its entire ethnic
6 cleansing case falls apart because there can be no joint criminal
7 enterprise if the alleged acts simply do not constitute the crime of
8 deportation.
9 The Prosecution's submissions completely disregard ICTY
10 jurisprudence, humanitarian law, and the Prosecution's own earlier
11 position on this issue. The Stakic appeal's judgement recognise that
12 Article 49 is "the underlying instrument prohibiting deportation."
13 THE INTERPRETER: Could counsel please show down when reading.
14 JUDGE MOLOTO: Counsel, you are asked to please slow down.
15 Apparently, you are little too fast for the interpreters.
16 MR. AKHAVAN: I understand. Apologies.
17 JUDGE MOLOTO: May I ask you to please stick to what is not
18 already in the papers, because so far you have told us what you have
19 already told us in writing.
20 MR. AKHAVAN: Of course, Mr. President. I will be elaborating on
21 what we have already included in our written pleadings and will not burden
22 you by repeating what is already there.
23 I've indicated earlier that the Stakic appeals judgement clearly
24 indicates that there is a requirement of occupied territory. I would wish
25 to add that in the more recent Naletilic appeals judgement, Judge
1 Schomburg expressly stated, and this is at page 225, paragraph 22, that
2 under Article 5 deportation must be "from an area under the actual control
3 of one village or party to an area under the actual control of another."
4 If the alleged victims of deportation were never in the hands of
5 Croatian forces, the crime of deportation was simply never committed. The
6 argument that the occupation requirement of Article 49 does not apply to
7 deportation does not find support in any of the authorities cited by the
8 Prosecution, but what is most remarkable is that prior to this case the
9 Prosecution itself has consistently and repeatedly maintained that this
10 element of Article 49 does apply to the crime against humanity of
11 deportation.
12 To give one example in the Simic pre-trial brief at paragraph 97,
13 relying on the Krnojelac trial judgement, the Prosecution categorically
14 stated that: "The content of the underlying offence of deportation does
15 not differ whether perpetrated as a war crime or as a crime against
16 humanity."
17 THE INTERPRETER: Please slow down, please.
18 MR. AKHAVAN: "The crime against humanity" --
19 JUDGE MOLOTO: Please slow down.
20 [Microphone not activated]
21 MR. AKHAVAN: My Apologies. Yes, I will.
22 JUDGE ORIE: May I ask one thing in addition. You are quoting a
23 lot of cases. Could you please always indicate when you're talking about
24 deportation or forcible removal, whether you're quoting from a crimes
25 against humanity case or a war crimes case so that we can clearly
1 distinguish between the two types of crimes charged in the cases you're
2 referring to.
3 MR. AKHAVAN: Certainly. Certainly, Judge Orie. Many apologies.
4 It's been some years since I stood in this Chamber, and I'm not yet
5 advanced enough with the technology. Apologies.
6 Judge Orie, just to re-affirm that the quotation from the Simic
7 pre-trial brief specifically speaks about crimes against humanity under
8 Article 5(D), and as I mentioned the Prosecution categorically states in
9 their pre-trial brief: "As a crime against humanity, deportation requires
10 proof of the same elements as that required under Article 49 for war
11 crimes."
12 Another example is the Kovacevic pre-trial brief at page 32 where
13 the Prosecutor stated that: "Deportation under Article 5 reflects the
14 same actions as those in Article 49 of Geneva Convention 4."
15 The Prosecutor recognises that certain requirements of
16 nationality, for instance, under Article 4 of the Geneva Conventions may
17 not apply, but that is totally irrelevant with the issue that is before us
18 today. So we have to ask, Mr. President, why is the Prosecutor suddenly
19 disavowing its own earlier position. Why is the Prosecution seeking an
20 exception specifically in the case of General Gotovina?
21 We submit respectfully that the Gotovina exception is an attempt
22 by the Prosecution to criminalise Operation Storm without proof that it
23 constituted unlawful combat, if alleged that the purpose of Operation
24 Storm was terrorisation and mass expulsion of civilians because there was
25 no legitimate military objective. But the Prosecution does not explain
1 why five and a half years after the initial indictment against General
2 Gotovina, the defendant has not been properly charged with unlawful
3 attacks or spreading terror, which are the appropriate crimes. Now that
4 the indictment's profound legal flaw has been exposed, the Prosecution
5 tells us in its recent response that it is prepared to add further counts
6 of Hague law violations; this with just two months before the trial
7 begins.
8 The Prosecution's theory on post-combat second phase of ethnic
9 cleansing is equally problematic. The allegation is that Croatian
10 colonisation and destruction or pillage of property after the conclusion
11 of Operation Storm amounts to deportation because it discouraged the
12 return of Serbs. This is a highly imaginative theory but the Prosecution
13 cannot retroactively consummate the crime of deportation when Croatian
14 forces never deported protected persons from occupied territory in the
15 first place.
16 The mere impact of the alleged wanton destruction or plunder
17 cannot transform those crimes into the substantively different crime of
18 deportation. Another fundamental flaw is the allegation of
19 post-debellatio war crimes. The only armed conflict alleged in the
20 indictment is "in the Krajina region of the Republic of Croatia," which is
21 defined elsewhere in the indictment as UN protected area sectors north and
22 south. It's further admitted in the indictment that by 7 August 1995
23 minimal or non-existent Serbian resistance was completely overcome. The
24 Prosecution's latest response --
25 THE INTERPRETER: Counsel, please slow down.
1 JUDGE MOLOTO: Counsel, please slow down.
2 MR. AKHAVAN: It is further admitted that by 7 August non-existent
3 or minimal Serbian resistance was completely overcome.
4 THE INTERPRETER: Could the counsel also speak into the
5 microphone, please, and slow down. Thank you.
6 JUDGE MOLOTO: Counsel, you will remember that you've got ten
7 minutes to speak from the time you started in terms of the decision that
8 granted the permission. You're very close to that.
9 MR. AKHAVAN: Yes, sir. I planned on ten minutes not including
10 the interruptions, if --
11 JUDGE MOLOTO: You may proceed.
12 MR. AKHAVAN: I crave your indulgence.
13 The Prosecution's latest response now alleges for the first time
14 ever that an armed conflict continued to exist post-debellatio simply
15 because the Dayton and Erdut peace agreements were not yet concluded. But
16 debellatio does not depend on formal agreements, whether an armistice or
17 capitulation. The Prosecution's new argument is legally irrelevant and
18 effectively concedes that there was no armed conflict in the Krajina. It
19 is also an attempt to effectively amend the indictment by introducing a
20 wholly new legal theory, again with just two months before the trial
21 begins.
22 If the proper law of deportation and debellatio is applied nothing
23 is left of the case against General Gotovina. Rarely, if ever, has an
24 indictment been so deeply flawed, so manifestly inconsistent with
25 customary law, and we respectfully submit that under the circumstances
1 subjecting General Gotovina to a trial would be a miscarriage of justice.
2 Mr. President, we must also consider the far-reaching implications
3 of this motion on the Tribunal's legacy as it enters its final months.
4 There comes a point at which expansion of humanitarian law begins to
5 resemble a legal utopia, rather than realistic rules that can be followed
6 by military commanders acting in good faith.
7 Mr. President, distinguished members of the Tribunal, in
8 concluding, I note that we've come a long way since the historic Tadic
9 jurisdiction motion when seminal issues of humanitarian law remained to be
10 elucidated. But 14 years after the Tribunal's establishment, we're once
11 again faced with fundamental questions of jurisdiction reminiscent of the
12 early days of Tadic.
13 Today's proceeding may well be the historic response to Tadic. A
14 final opportunity for this Tribunal to send a message that just as it once
15 expanded humanitarian law, it will now draw the line and not allow
16 military commanders to be subjected to prosecution, unless it is properly
17 alleged that they have violated humanitarian law.
18 That concludes, Mr. President, our brief submission. I thank the
19 Chamber for its patience and remain at your disposal for questions.
20 JUDGE MOLOTO: Thank you very much.
21 [Trial Chamber confers]
22 JUDGE MOLOTO: Mr. Separovic.
23 THE INTERPRETER: Could counsel please switch off his microphone,
24 please.
25 MR. SEPAROVIC: [Interpretation] Your Honours, on behalf of the
Wednesday, 28 February 2007Case No. IT-06-90-PT
Motion Hearing (Open Session)Page 1
Markac Defence Submissions
1 Defence of General Markac, my co-counsel, Mr. Goran Mikulicic will address
2 the Chamber.
3 MR. MIKULICIC: [Interpretation] Your Honours, it is a pleasure to
4 point out some arguments which accompany our written submissions,
5 challenging the jurisdiction of this Tribunal in relation to the
6 indictment as it was legally formulated by the Prosecution in this case.
7 In order to avoid any repetition, either in relation to what was stated in
8 our written submissions or in relation to what was just said by my friend
9 of from the Defence of General Gotovina, please allow me to say that the
10 Defence of General Markac fully supports and accepts the arguments of
11 General Gotovina in relation to the existence of an armed conflict and
12 deportation of the population.
13 In addition to that I would like to point out the well-known legal
14 principle beneficium cohesiones, which is a legal principle stating that
15 what is in favour of one accused should be applied to other accused in the
16 same proceedings as well. What is stated or what is the position of
17 General Markac's Defence is that in the relevant period of time and in any
18 case in the time before the beginning of the Operation Storm and
19 immediately after its conclusion, in the theatre of alleged crimes in the
20 territory of the so-called Sector South of the self-proclaimed Republic of
21 Krajina, there was no armed conflict.
22 This position of the Defence is based on the arguments which we
23 articulated in writing. Now, we would just like to add a couple of words
24 to that. In their response, my learned friends from the Prosecution point
25 out that in our motion challenging the jurisdiction, we are actually
1 dealing with a so-called factual issue; namely, that the existence of an
2 armed conflict is a quaestio facti, a factual question that needs to be
3 litigated. This claim is only partially correct because the issue of
4 whether an armed conflict existed or not is also a legal issue, which is
5 very important for these proceedings, or rather, it is so important that
6 it actually defines the jurisdiction ratione materiae or subject matter
7 jurisdiction of this Tribunal.
8 The factual issue can be analysed only on the basis of a criterium
9 which was used by Pre-Trial Judges who confirmed the indictment, or
10 rather, in this situation when the indictment is expanded and this
11 criterium is a so-called prima facie criterium. It is our position that
12 by applying prima facie criterium, given the documentation supporting the
13 indictment and provided by the Prosecution, a conclusion cannot be drawn
14 that during the relevant period of time there was a conflict between
15 regular forces of the Republic of Croatia and armed forces of the
16 self-proclaimed Republic of Serbian Krajina.
17 We base this conclusion, first and foremost, on the document which
18 accompanied our written submissions which is a report of Secretary-General
19 of the UN about the events in Sector South on the date of -- or during the
20 period leading up to the 20th of August, 1995. In that report it is
21 explicitly stated that following the launch of the military and police
22 Operation Storm in which military and police forces of the Republic of
23 Croatia participated, there followed an exodus and fleeing of the
24 political and other leadership of the self-proclaimed Serbian Republic of
25 Krajina.
1 Another document from the supporting material indicates that the
2 entire 21st Corps of the army of the self-proclaimed Serbian Republic of
3 Krajina surrendered. This leads us to the following conclusion. First,
4 that any further armed activity in that area transpired in the
5 circumstances where there was no organisation and no intensity. No
6 organisation because, based on the documents, it is clear that political
7 and military leadership had left the area, so there was nobody else there
8 to organise the armed rebellion. And as for the lack of intensity, it is
9 based on the fact that a very large number of the soldiers of the
10 self-proclaimed army actually surrendered to the Croatian forces.
11 I insist on these two terms; namely, organisation and intensity,
12 because on the basis of the humanitarian law as it exists so far, these
13 two are the elements which are included in the legal qualification of an
14 armed conflict, and they are also very important in the distinction
15 between the qualification of an armed conflict and the so-called internal
16 tensions and unrest.
17 In addition to this we pointed out to many portions of the case
18 law, both of this Tribunal and that of Rwanda, and we also highlighted
19 comments of the International Red Cross which accompany the Geneva
20 Conventions and which altogether form customary international law.
21 Distinction between the existence of an armed conflict and internal
22 tensions and unrest lies precisely in these two key terms, which are the
23 organisation of unrest and the question of intensity of activities.