THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Transcription

1 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA BEFORE THE APPEALS CHAMBER IT A 5734 A A August 2012 SF Case No. IT A Before: Registrar: Judge Theodor Meron, Presiding Judge Fausto Pocar Judge Patrick Robinson Judge Mehmet Güney Judge Carmel Agius Mr. John Hocking Date Filed: 6 August 2012 THE PROSECUTOR v. ANTE GOTOVINA AND MLADEN MARKAC NOTICE OF FILING OF PUBLIC REDACTED VERSION OF APPELLANT ANTE GOTOVINA S REPLY IN SUPPORT OF HIS SECOND MOTION TO ADMIT ADDITIONAL EVIDENCE PURSUANT TO RULE 115 [PUBLIC] For the Prosecution: Ms. Helen Brady Mr. Douglas Stringer For Ante Gotovina: Mr. Gregory W Kehoe Mr. Luka S. Misetic Mr. Payam Akhavan Mr. Guénaël Mettraux For Mladen Markac: Mr. Goran Mikulicic Mr. Tomislav Kuzmanovic Mr. John Jones Mr. Kai Ambos IT A

2 5733 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT A THE PROSECUTOR v. ANTE GOTOVINA and MLADEN MARKAC NOTICE OF FILING OF PUBLIC REDACTED VERSION OF APPELLANT ANTE GOTOVINA S REPLY IN SUPPORT OF HIS SECOND MOTION TO ADMIT ADDITIONAL EVIDENCE PURSUANT TO RULE On 18 May 2012, Appellant Ante Gotovina ( Appellant ) filed his confidential Reply in Support of His Second Motion to Admit Additional Evidence Pursuant to Rule 115 ( Second Motion Reply ). 2. Appellant hereby files the Public Redacted Version of his Second Motion Reply, which is attached hereto as Annex 1. IT A 2

3 5732 Word Count: 69 Dated: 6 August 2012 Payam Akhavan Defence Counsel for Ante Gotovina Guénaël Mettraux IT A 3

4 5731 ANNEX 1 IT A 4

5 5730 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA BEFORE THE APPEALS CHAMBER Case No. IT A Before: Registrar: Judge Theodor Meron, Presiding Judge Fausto Pocar Judge Patrick Robinson Judge Mehmet Güney Judge Carmel Agius Mr. John Hocking Date Filed: 6 August 2012 THE PROSECUTOR v. ANTE GOTOVINA AND MLADEN MARKAC REPLY IN SUPPORT OF APPELLANT ANTE GOTOVINA S SECOND RULE 115 MOTION [PUBLIC REDACTED VERSION] For the Prosecution: Ms. Helen Brady Mr. Douglas Stringer For Ante Gotovina: Mr. Gregory W. Kehoe Mr. Luka S. Misetic Mr. Payam Akhavan Mr. Guénaël Mettraux For Mladen Markac: Mr. Goran Mikulicic Mr. Tomislav Kuzmanovic Mr. John Jones Mr. Kai Ambos IT A 5

6 5729 THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Case No. IT A THE PROSECUTOR v. ANTE GOTOVINA and MLADEN MARKAC REPLY IN SUPPORT OF APPELLANT ANTE GOTOVINA S SECOND RULE 115 MOTION I. Introduction 1. The Prosecution s Response to Appellant Ante Gotovina s Second Rule 115 Motion repeats arguments with no corroboration in the contemporaneous evidence. The fact is that Serb civilians did not begin to leave the Krajina until after Martic issued his evacuation order. The Appeals Chamber can test each party s arguments by asking one question: Is there any contemporaneous document which supports the position of the Prosecution or Defence as to the timing of civilian departure from the Krajina on 4 August 1995? As discussed below, every contemporaneous document admitted at trial or tendered pursuant to Rule 115 supports only one conclusion: Martic s evacuation order triggered the departure. 2. Furthermore, the Prosecution has spent many months attempting to convince the Appeals Chamber that the 200-metre margin of error was a reasonable measure based on the evidence, and that the evidence indicated that the margin of error for HV artillery was as low as metres. 1 The 1 Respondent s Brief, 12 September 2011, at paragraphs IT A 6

7 5728 Prosecution has argued that the reports of Scales, Shoffner and Griffith are fundamentally flawed and not credible or reliable However, in its Response, the Prosecution finally acknowledges that the Prosecution agrees that based on all the expert reports (Prosecution and Defence) the 200-metre margin of error is overly narrow In light of this admission by the Prosecution, the expert reports of Scales, Shoffner, Griffith and Granville-Chapman should be admitted under Rule 115. It is now clear that the 200 Rule was without sufficient evidentiary basis in the trial record. If the Appeals Chamber finds the 200M Rule to be erroneous, these reports (and the Prosecution s proposed rebuttal reports) would become superfluous and would not need to be admitted. 5. Moreover, the Prosecution s proposed rebuttal witnesses should be rejected for the following reasons: (1) They confirm, rather than rebut, the Defence s experts in relation to the only issue for which the reports were tendered (namely, the unreasonableness of the 200M Rule); (2) They lack transparency. The Prosecution has thus far refused to disclose the extent of its own involvement in the preparation of these reports. Indeed, when pressed, the Prosecution has not denied that (A) the Prosecution communicated with these experts about the substance of their reports beyond the materials attached as annexes, and/or (B) the Prosecution provided these experts with copies of the Prosecution s pleadings to use in preparing their own reports. The Prosecution has thus far concealed evidence of its communications with these rebuttal experts about the substance of their reports. 2 Prosecution Response to Gotovina s Rule 115 Motion, 16 December 2011, at pages Prosecution Response to 2 nd Rule 115 Motion, at paragraphs 47, 51. Emphasis added. IT A 7

8 5727 (3) The conclusions in the reports are irrelevant because they rest on findings of disproportionate attack, which the Prosecution did not allege at trial. II. All Contemporaneous Documents, Including the Proposed Rule 115 Evidence, Proves that Civilian Flight Began after Martic s Evacuation Order 6. Every piece of contemporaneous evidence admitted at trial established only one conclusion: Martic s evacuation order triggered the mass departure of Serb civilians from Krajina. This contemporaneous evidence included the following: (1) The report of the United Nations Commander in Knin, General Forand, who stated that the UN only started to see cars leaving Knin in the evening of 4 August, after Forand had been asked by the SVK to assist in the evacuation; 4 (2) The written reports of the SVK commanders of Knin, 5 Benkovac, 6 Obrovac 7 and Gracac; 8 (3) Media statements on the afternoon of 4 August by the United Nations press officer in Knin, witness Alun Roberts, who stated that after a day of shelling things were calm in Knin but people were concerned about what may follow next. He made no mention of panicked civilians fleeing the city. 9 Well after the initial shelling had stopped, there [was] no sign that the city was preparing to evacuate. 10 the media: At 14:15, Roberts told 4 P399. See also P398, describing the critical order to evacuate. 5 D1516, page 2. 6 D828, page 4. 7 D520, page 1. 8 D435, page 2. 9 D D1370, page 2. IT A 8

9 5726 Asked by Obradovic on the situation in the town regarding the civilians, Roberts said that there was no panic among the civilians, however in his opinion the people were extremely shocked and surprised by the shelling this morning. 11 (4) That same, afternoon, Roberts painted a picture of the scene amongst the civilians in Knin after the shelling had finished: We have a situation in which there is broken glass in numerous apartments and on the streets. The food in some of the stores was ruined due to the result of the broken glass. But there are no true signs, I would say, in Knin, of what you might call panic. There is, of course, worry and uncertainty prevailing amongst the people. They attempted to re-group and are now cleaning the glass from the streets. 12 (5) Telephone intercepts at 16:30 in the afternoon of 4 August of Martic, Mrksic and Babic in which they decided to order the evacuation of the population due to the threat of Croatian incursion into Knin. 13 No mention is made of any mass departures of civilians as being already underway; (6) Radio broadcasts of Mrksic in the evening of 4 August in which he announced that civilians were being evacuated from Knin due to the threat that Croatian forces would encircle Knin. 14 He made no mention of any departures due to fear of shelling ; and, (7) Martic s evacuation order explicitly states that it is being issued because a large part of the territory of Northern Dalmatia and a part of Lika have become threatened. 15 Martic made no mention of shelling as 11 D D1374, page D D106, D D137. IT A 9

10 5725 having already caused departures or as being one of the reasons he was issuing the order. 7. The Trial Judgment addressed none of this contemporaneous written evidence. Moreover, the [REDACTED] testified before the Trial Chamber that, [REDACTED] 16 Obviously, the [REDACTED] would have had to know if thousands of Krajina Serb civilians had been evacuating Knin well before the evacuation order. 8. The materials tendered by Appellant in his First, Second and Third Rule 115 motions offer even more contemporaneous records proving that the evacuation order triggered the mass departure of Serb civilians. In contrast, the Prosecution has offered nothing to corroborate any claim that Serb civilians were leaving the four towns en masse prior to the evacuation order. 9. The new Rule 115 materials are reliable, internally consistent, and consistent with all other contemporaneous evidence in the record. Accordingly, they should be admitted. III. The Prosecution is Attempting to Fill the Gaps in Its Case Through Rebuttal Evidence 10. In an effort to revive its case, the Prosecution has tendered three expert reports as rebuttal evidence allegedly in an effort to demonstrate that the Chamber applied the proper method to assess the use of artillery against the four towns by considering all of the evidence. 17 In its tortured analysis, the Prosecution argues that because its experts have concluded that the attack was a disproportionate attack, the Chamber s analysis was both reasonable and correct. 18 However, the Trial Chamber expressly stated that its conclusions were not based on an assessment of the proportionality of the artillery operation. 19 More significantly, the Prosecution has already admitted that the 16 [REDACTED]. 17 Prosecution Response to 2 nd Rule 115 Motion, at paragraph Id. at paragraph TJ, page 961, fn. 931; page 967, fn IT A 10

11 5724 Trial Chamber did not consider the issue of overall proportionality. 20 Accordingly, for the Prosecution to now argue that the Trial Chamber properly concluded that the attack was disproportionate and therefore an unlawful attack, is disingenuous and without merit. A. The Prosecution Did Not Allege Disproportionate Attack at Trial 11. At the outset it should be noted that the Prosecution violates Gotovina s right to fair notice of the charges against him. The expert reports attempt to evaluate the proportionality of the use of artillery, which was not an issue that was part of the Prosecution s case. 21 B. Rebuttal Evidence Cannot Be Used To Cure the Prosecution s Failure of Proof 12. The Prosecution tenders its Rebuttal Reports under the guise that it is rebutting the reports of the Defence s proposed artillery experts. Prosecution acknowledges that the expert reports of Scales, Shoffner and Griffith relate only to the Chamber s finding on the HV artillery s range of error. 22 The Similarly, the Prosecution acknowledges that the Granville- Chapman report only addresses the so-called 200-metre rule 23 Accordingly, the Prosecution would be entitled to offer rebuttal evidence only if that evidence contradicts Appellant s experts on the proper range of error. 13. Instead, the Prosecution s experts agree entirely with those of the Appellant that 400m is a more appropriate rule of thumb as a range of error for HV weapons systems. 24 Their reports therefore do not rebut anything. As such, the proposed evidence is inadmissible as rebuttal evidence pursuant to Rule 115(A). 20 Respondent s Brief, page 116, fn See Ante Gotovina s Motion in Limine, 4 May 2012; Gotovina Supplemental Brief, 17 May 2012, paragraphs Prosecution Response to Gotovina s Rule 115 Motion, 16 December 2011, at paragraph Prosecution Response to Gotovina s Second Motion to Admit Additional Evidence Pursuant to Rule 115 and Supplemental Response to Gotovina s First Rule 115 Motion ( Prosecution Response to 2 nd Rule 115 Motion ), 1 May 2012, at paragraph Applegate Report, at Executive Summary paragraph 1. IT A 11

12 5723 IV. The Rebuttal Reports Are Unreliable and Lack Credibility A. The proposed rebuttal evidence is impermissible and therefore inadmissible 14. Experts are not permitted, under the law of the Tribunal, to offer their opinion on ultimate issues, which are the sole responsibility of the Trial or Appeals Chambers. The point was well made by Judge May. 25 In their report, the proposed rebuttal experts attempt to make findings in place of the Appeals Chamber (namely, whether the attack could be unlawful for one reason or another). Clearly this is impermissible, as these are conclusions to be made by the Appeals Chamber and not artillery officers, who have no demonstrated expertise in international humanitarian law. B. The Experts Misunderstand the Case at Trial, Failed to Review Relevant Evidence, and Therefore Draw False Conclusions on the Basis of the Absence of Evidence 15. A review of the Rebuttal Reports reveals that Applegate received his tasking letter on 15 March 2012 and submitted his report on 21 April He thus had 37 days to review thousands of pages of relevant evidence, trial testimony and the Trial Judgement, and to prepare his own report. Brown had 34 days, while Ashmore had seven days. Appellant submits that it was physically impossible for these three individuals to review all relevant trial evidence in such a short amount of time before drawing their sweeping conclusions concerning disproportionate attack. 16. In their rush to complete their reports, Applegate and Brown fail to reconcile their conclusions of disproportionate attack with any of the significant evidence in the record, including: (1) The Trial Chamber s inability to find any casualties resulting from the artillery operation; 25 Kordić and Čerkez Trial Transcript p , 28 January See also Hadžihasanović and Kubura, Decision on Report of Prosecution Expert Claus Reinhardt, 11 February 2004, p. 4; Milutinovic et al, Transcript, 13 July 2006, pp ; International Criminal Evidence, Judge Richard May and Marieke Wierda, Transnational Publishers, New York 2000, p. 201 and the references therein. IT A 12

13 5722 (2) The Trial Chamber inability to identify any civilians who were terrorized into fleeing the Krajina; (3) The UNMO assessment post-storm that fire was concentrated against military objectives and that there were only 3-5 shells in other parts of town; 26 and (4) The fact that the Trial Chamber could find only 13 out of 1200 projectiles fired which were outside the 400m margin of error of the weapons systems involved. 17. In addition, Applegate and Brown failed to review critical evidence in the record which contradicts their conclusions. For example, Applegate draws the following incorrect conclusions that are contradicted by evidence in the record: (1) Quality of Target Lists: 27 Applegate ignores the express testimony of Rajcic that the HV constantly review[ed] and update[ed] our source lists. 28 (2) Evidence of HV proportionality assessment. 29 Again, Applegate ignores Rajcic s express testimony to the contrary. Rajcic not only testified that a proportionality assessment was done, but provided an example where Rajcic decided not to target a fuel station near a river in Knin due to concerns that it would contaminate the drinking water. 30 (3) Indiscriminate harassing fires was consistent with the goal of creating fear and panic: The Trial Chamber disagreed with Applegate, concluding that the evidence does not establish the locations of impacts of the artillery projectiles which the HV fired at defined intervals, and 26 P Applegate Report, page D1425, paragraph Applegate Report, page D1425, paragraph 19-20, 28; T.16592: IT A 13

14 5721 therefore the Chamber is unable to conclude from this method of fire whether the artillery projectiles fired in this manner were intended to harass civilians or disrupt the SVK. 31 Applegate does not explain how he located the location of impacts of harassment fire, where the Chamber and Prosecution could not. (4) The pattern of fire covered the general area of Knin and was not limited to the vicinity of recognized military targets. Given that only 13 shells out of 1200 allegedly impacted beyond the 400m range of error of the HV weapons systems, Applegate does not explain what about this pattern is troubling to him, or what he considers the vicinity of military objectives to be, if not the area within the range of error. Moreover, these experts failed to consider the investigative results of the UNMOs who found that shell impacts were concentrated against military objectives. 32 (5) Inappropriate selection of weapons: The Trial Chamber expressly disagreed with this conclusion and found that the weapons were not inherently indiscriminate. TJ, (6) No Rules of Engagement: Applegate first states that Rajcic referenced the Rules of Engagement as contained in a 1983 JNA Manual, and admits that he hasn t read it. Even though he hasn t read it, he concludes without explanation that these weren t Rules of Engagement. 33 (7) Little Evidence of Defensive Activity Within Knin that would have merited continued neutralization and harassing fires. Applegate ignores the overwhelming evidence that by the evening of 4 August, SVK commander Mrksic had ordered the decisive defense of Knin by withdrawing all of his forces to the hills outside the western edge of Knin 31 TJ, P Applegate Report, page 5. IT A 14

15 5720 known as Bulina Strana. 34 Applegate fails to recognize that Mrksic s forces, in order to get to Bulina Strana, had to withdraw from the Dinara Mountains on the eastern side of the Knin valley, as well as from the southern Krajina from places like Drnis, and transit through Knin on the evening of 4 August to get to Bulina Strana. 35 Applegate conclusion that there was little evidence of defensive activity that would justify harassing in neutralization fires is based upon his lack of knowledge of the evidentiary record at trial. 18. Applegate and Brown also fail to grasp that the case at trial was not about proportionality, and neither party sought to tender evidence on that issue. Failing to understand that fundamental point, Applegate and Brown proceed to draw sweeping inferences of criminal intent based on the alleged absence of evidence in the record, thus shifting the burden of proof. Brown, for example, concludes that, [f]ar from following indirect fire doctrine, the lack of evidence brought by the Defence to the Trial Chamber suggests that HV officers negligently abused their own doctrine and generally accepted principles of indirect fire. 36 Brown thus draws an inference of criminal intent from the Defence s alleged failure to bring forward evidence about measures concerning proportionality, even where proportionality did not form part of the Prosecution s allegations at trial and thus required no response from the Defence. C. The Rebuttal Reports Lack Transparency 19. The Defence has sent repeated requests to the Prosecution to disclose the extent of its communications with these experts about substantive issues that were relevant to their reports. Given that these experts spent no more than 35 days to (1) review the trial record, (2) review the Trial Judgement, (3) 34 TJ, 1396; D-244; D-245,pg.3; D-930,pg.7; PW-P56,T:3607:13-23; D-1516,pg.2; D-260; D-923,pg.8; PW-AG58,T:18523: Appellant s Reply Brief, 4 October 2011, at Annex B. 36 Brown Report, page 16. IT A 15

16 5719 review Appellant s proposed expert reports, and (4) prepare their own reports, it is obvious that the Prosecution spent time assisting these witnesses in preparing their reports. 20. Thus far, the Prosecution has chosen to unilaterally postpone compliance with Appellant s Rule 66(B) and Rule 68 requests until after the Appeals Chamber has ruled on the admissibility of Appellant s expert reports. There is no basis in the Rules allowing the Prosecution to stay or postpone meeting its disclosure obligations. This calls for a strong inference concerning the inadmissibility of this material. The Prosecution should not be allowed to lead its experts to the conclusions it seeks, then conceal its own role in the reports and subsequently rely on them as evidence. IT A 16

17 5718 V. Conclusion 21. For all of the reasons set forth above, Appellant s motion to admit additional evidence should be granted. Furthermore, the Prosecution s proposed Rebuttal Reports are not rebuttal material, but rather new evidence of an allegation not made at trial in an effort to prop up the Trial Judgement. Finally, the Rebuttal Reports are unreliable and not credible because they either fail to consider evidence in the record or else draw negative inferences due to the absence of evidence in the record concerning an issue not litigated at trial. Word Count: 2993 Dated: 6 August 2012 Payam Akhavan Guénaël Mettraux Defence Counsel for Ante Gotovina IT A 17