Gotovina Defence Calls for Acquittal

Lawyer argues prosecution case against three Croatian generals is “weakest unlawful shelling case” in tribunal’s history.

Gotovina Defence Calls for Acquittal

Lawyer argues prosecution case against three Croatian generals is “weakest unlawful shelling case” in tribunal’s history.

Friday, 27 March, 2009
The defence teams of former Croatian general Ante Gotovina and his two co-defendants have each called for their respective client’s acquittal on all charges – including the murder, deportation and forcible transfer of Serb civilians in 1995.

Gotovina went on trial on March 11, 2008, and is charged along with two other former generals, Ivan Cermak and Mladen Markac, with orchestrating the permanent removal of Serbs from the Krajina region of Croatia between July and September 1995.

According to the indictment, the three men were part of a criminal conspiracy to permanently remove the Serb population from the Krajina region “by force, fear, or threat of force, persecution, forced displacement, transfer, and deportation, appropriation and destruction of property or other means”.

Gotovina was the commander of the Croatian forces deployed in the Krajina and headed the August 1995 military campaign known as Operation Storm which prosecutors alleged prompted around 200,000 Serbs to flee the region.

The prosecution says that Croatian forces bombarded towns across the Krajina before embarking on a campaign, which included the killing of civilians, the burning of houses and looting of property in a bid to drive Serbs out of the area and prevent their return.

However, lawyers representing Gotovina have called for the former general’s acquittal on all charges in relation to attacks on Knin and other towns in the Krajina in August 1995, arguing that the military onslaught was in no way excessive or directed at civilians.

“The prosecution’s case... is that there was shelling in different parts of Knin,” defence counsel Payam Akhavan told the court in a second round of arguments calling for the defendants’ acquittal this week.

“Beyond speculation... there is not a single instance where an unlawful attack is conclusively proven.”

Under tribunal rules, the defence may seek an acquittal from the judges at the midpoint of a trial on any charges that it deems the prosecution has not proved during the presentation of its evidence.

The prosecution rested its case on March 5, having presented testimony from 79 witnesses.

Akhavan pointed to reports by United Nations military observers – known as UNMO – on the ground in the Krajina which he said do not support the view that there was excessive shelling in Knin by Croatian forces during August 1995.

He submitted that the reports “conclude that artillery fire was concentrated in the close vicinity of military objectives and caused minimal damage”, and therefore show that attacks were not aimed at civilians.

Akhavan cited an argument made by the prosecution during its case that between 50 and 75 civilians died as a result of disproportionate force used by the Croatian military during the operation.

However, he said that prosecutors had failed to prove that these victims had all been civilians, and argued that that they could therefore have been “incidental casualties” of an otherwise legal attack against a military target, rather than a residential area.

“What is most significant for these proceedings is that there is no proof whatsoever of a single death or injury resulting from an unlawful attack,” said Akhavan.

Akhavan also highlighted the testimony of prosecution witnesses heard over the last 12 months which supported his argument that Operation Storm was not targeted at civilians.

Peter Galbraith, the US ambassador to Croatia during 1995, testified in June last year that he “[did] not think Operation Storm was taken with the purpose of expelling the Serbs from Croatia”, recounted Akhavan, noting that Galbraith was the prosecution’s “star witness”.

“We would respectfully submit that this is the most untenable, weakest ever, unlawful shelling case in the history of this tribunal,” Akhavan told the judges.

He argued that the prosecution’s failure to prove unlawful shelling meant that other related charges should also be dismissed.

“There can be no case of mass deportation through unlawful shelling if, in fact, there is no proof of unlawful shelling,” he said.

“Our submission is that the evidence cannot sustain a conviction on any of the counts. We therefore respectfully request the chamber to enter a judgement of acquittal on all counts.”

Cermak’s defence team also took the stand this week to challenge the prosecution’s charges against its client.

It dismissed the prosecution argument that Cermak was responsible for crimes committed during 1995 because he had known that crimes were being committed yet took no action to stop them, and had also presented false information about them to the media.

The prosecution alleges that as commander of the Knin garrison, Cermak failed to maintain discipline among the Croatian military forces and the police. He did not fulfill his duty to prevent or punish crimes, such as the killing and mistreatment of Serb civilians and the burning and looting of property in the aftermath of Operation Storm, say prosecutors.

However, British barrister, Steven Kay QC, representing Cermak, said that as commander of the Knin garrison, his client “was supportive of law and order”.

He contested the prosecution’s argument that Cermak had effective control over the army or the military and civilian police, arguing that he had lacked the necessary powers to investigate or prevent crimes.

“There is absolutely no evidence to support the proposition that General Cermak had a duty to investigate [crimes],” Kay told judges.

To support his case, he cited military disciplinary code which he contended only gave Cermak the authority to discipline the nine soldiers directly under his command and “deal with minor disciplinary breaches”.

Kay also referred to testimony of prosecution witnesses who said that Cermak lacked authority to issue orders to the civilian or military police.

Former Croatian military police officer Bosko Djolic confirmed to the court that “Cermak had no authority” to order the investigation of crimes, Kay said.

Kay then quoted a second prosecution witness, who said that Cermak had no authority to issue orders to the civilian police, as they came under the mandate of the Croatian ministry of interior.

“That was how the system worked and how the documents and paper trail in this case show the system working,” submitted Kay.

Lawyers for the prosecution - in a tag-team sequence - then responded to the defence teams’ arguments for a second time.

Stephen Margetts, who addressed the arguments of the Cermak defence, argued that the defendant had given false details in a media interview about crimes committed against Serbs, and that he had held information that such crimes had taken place yet failed to act upon it.

He referred to an incident during which five Serbs in the town of Grubori were allegedly killed by special police under the command of the third defendant, Markac.

“It’s clear that General Cermak did not present accurate information [to the media] in relation to the victims of the Grubori incident, but it’s also clear that he had very precise information in relation to evidence that may [have identified] the perpetrators,” said Margetts.

Prosecutor Edward Russo countered the claim by Gotovina’s defence that the prosecution had not provided enough evidence regarding the 50 to 75 Serb deaths to prove the general had committed persecution by killing civilians.

He contended that his team was not required to prove that these deaths or injuries had actually occurred in order to prove persecution charges based on the excessive use of force.

The prosecution also pointed to the fact that the Gotovina defence had not challenged the evidence that 50 to 75 people had been killed and 30 to 40 others injured as a result of an artillery attack on Knin.

The defence had merely argued that prosecutors hadn’t proven the identity of the victims so couldn’t prove that they were civilians, said Russo.

However, he argued that there was no need for prosecutors to identify those who died to prove the charges.

“There has never been a requirement to specifically name victims of an unlawful attack,” Russo told the court.

Russo also sought to debunk the argument of Gotovina’s defence that there was nothing illegal about the Croatian attack of Knin.

To support the charge that during the assault disproportionate force was used, he cited evidence given by former Croatian artillery chief Marko Rajcic in February this year that rocket launchers employed in the attack on Knin were liable to “extreme inaccuracy”.

“Your Honours, this admission alone suffices to defeat the Gotovina defence’s [acquittal] arguments regarding unlawful attack,” said Russo.

The judges will deliver their decision in due course and the defence case, if required, is scheduled to start on May 28.

Simon Jennings is an IWPR reporter in The Hague.
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