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THE$INTERNATIONAL$CRIMINAL$TRIBUNAL$FOR$THE$FORMER$YUGOSLAVIA$

$Case$No.$IT9069909A$

$BEFORE$THE$APPEALS$CHAMBER$$Before:$ Judge$Theodor$Meron,$Presiding$

Judge$Fausto$Pocar$Judge$Patrick$Robinson$Judge$Mehmet$Güney$Judge$Carmel$Agius$

$Registrar:$$ Mr.$John$Hocking$ $$Date$Filed:$ 31$July$2012$$$

THE$PROSECUTOR$$v.$$

ANTE$GOTOVINA$AND$MLADEN$MARKAC$$

$NOTICE$OF$FILING$OF$PUBLIC$REDACTED$VERSION$OF$APPELLANT$ANTE$

GOTOVINA’S$SECOND$MOTION$TO$ADMIT$ADDITIONAL$$EVIDENCE$PURSUANT$TO$RULE$115$

![PUBLIC]!

________________________________________________________________________$$For$the$Prosecution:! ! ! ! For$Ante$Gotovina:$ $ $$ $ !

Ms.!Helen!Brady! ! ! ! ! Mr.!Gregory!W!Kehoe!! !

Mr.!Douglas!Stringer!! ! ! ! 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!

5440IT-06-90-AA5440 - A540531 July 2012 TR

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THE$INTERNATIONAL$CRIMINAL$TRIBUNAL$FOR$THE$FORMER$YUGOSLAVIA!

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Case$No.$IT9069909A$$

THE$PROSECUTOR$v.$

ANTE$GOTOVINA$and$MLADEN$MARKAC$$

$$$

$NOTICE$OF$FILING$OF$PUBLIC$REDACTED$VERSION$OF$APPELLANT$ANTE$GOTOVINA’S$SECOND$MOTION$TO$ADMIT$ADDITIONAL$$

EVIDENCE$PURSUANT$TO$RULE$115$!

1. On!30!March!2012,!Appellant!Ante!Gotovina!!(“Appellant”)!filed!his!

confidential!Second!Motion!to!Admit!Additional!Evidence!Pursuant!to!Rule!

115!(“Second!Motion”).!

!

2. Pursuant!to!the!Appeals!Chamber’s!Order!of!28!June!2012,!Appellant!hereby!

files!the!Public!Redacted!Version!of!his!Second!Motion,!which!is!attached!

hereto!as!Annex!!1.!

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IT-06-90-A 5439

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Word!Count:!71! !

Dated:!31!July!2012! ! ! ! !

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!!

!Payam!Akhavan! ! ! ! Guénaël!Mettraux!

Defence!Counsel!for!Ante!Gotovina!

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IT-06-90-A 5438

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!!!!!!!!!

Annex 1

IT-06-90-A 5437

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THE!INTERNATIONAL!CRIMINAL!TRIBUNAL!FOR!THE!FORMER!YUGOSLAVIA!

!Case!No.!IT9069909A!

!BEFORE!THE!APPEALS!CHAMBER!!Before:! Judge!Theodor!Meron,!Presiding!

Judge!Fausto!Pocar!Judge!Patrick!Robinson!Judge!Mehmet!Güney!Judge!Carmel!Agius!

!Registrar:!! Mr.!John!Hocking! !!Date!Filed:! 31!July!2012!!!

THE!PROSECUTOR!!v.!!

ANTE!GOTOVINA!AND!MLADEN!MARKAC!!

!APPELLANT!ANTE!GOTOVINA’S!SECOND!MOTION!TO!ADMIT!ADDITIONAL!!

EVIDENCE!PURSUANT!TO!RULE!115!!

[PUBLIC!REDACTED!VERSION]!________________________________________________________________________!

!For!the!Prosecution:! ! ! ! For!Ante!Gotovina:! !! ! ! !Ms.!Helen!Brady! ! ! ! ! Mr.!Gregory!W!Kehoe!! !Mr.!Douglas!Stringer!! ! ! ! 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-06-90-A 5436

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!!

THE!INTERNATIONAL!CRIMINAL!TRIBUNAL!FOR!THE!FORMER!YUGOSLAVIA!

!!Case!No.!IT9069909A!!

THE!PROSECUTOR!v.!

ANTE!GOTOVINA!and!MLADEN!MARKAC!!

!APPELLANT!ANTE!GOTOVINA’S!SECOND!MOTION!TO!ADMIT!ADDITIONAL!!EVIDENCE!PURSUANT!TO!RULE!115!

!

I. GENERAL CONSIDERATIONS

1. Pursuant to Articles 20 and 21 of the Statute and Rule 115 of the Rules

of Procedure and Evidence, Appellant Ante Gotovina moves to admit

five (5) additional documents that were unavailable at trial and which

if admitted could have impacted the Trial Chamber’s verdict. All

admission requirements pursuant to Rule 115 have been met and the

Defence adopts by reference its legal submissions contained in its

Motion of 27 October 2011.1

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!1 Appellant Ante Gotovina’s Motion to Admit New Evidence Pursuant to Rule 115, 27

IT-06-90-A 5435

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II. PROPOSED NEW EVIDENCE

A) Causes for the departure of Krajina Serb civilians

2. The Trial Chamber found that the primary cause for the departure of a

majority of the Krajina Serb civilians was unlawful artillery shelling

by the Croatian army.2 All other explanations were regarded as

unreasonable.

3. The Appellant has challenged this finding as erroneous and

unreasonable, as well as the Trial Chamber’s failure to give a reasoned

opinion as to how its conclusion was the only reasonable one.3

4. Since the Trial Judgment was rendered, the Prosecution has disclosed

three documents relating to the departure of Krajina Serb civilians

which directly contradict and impugn the Trial Chamber’s findings.

The Defence now seeks to tender those documents pursuant to Rule

115:

• [REDACTED] (attached as Exhibit A) and

[REDACTED](attached as Exhibit B) were disclosed on 13

January 2012. The Prosecution failed to timely disclose these

documents though apparently they were available at trial.

However, during trial the Prosecution claimed not to possess these

documents.4

• [REDACTED] (attached as Exhibit C) was disclosed on 9 March

2012. This document has been in the Prosecutor’s possession since

1998,5 and his failure to seek permission to disclose it from the

Rule 70 provider has not been explained.6

5. [REDACTED] is a [REDACTED] which sets forth the following

details [REDACTED]:

6. This document is highly significant for four reasons: !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!2 For a list of impugned findings to which the proposed evidence pertains, see First Rule 115 Motion, pars 6-7. 3 Appellant’s Brief of Ante Gotovina (2 August 2011) (hereinafter “Appellant’s Brief”), pars 142-173; 178-193 Reply Brief of Ante Gotovina (6 October 2011) (hereinafter “Reply Brief”) pars 67-96; First Rule 115 Motion, pars 8 et seq. 4[REDACTED]. 5 Prosecution Letter to the Gotovina Defence of 20 March 2012. 6 The Defence adopts by reference the submissions made in its First Rule 115 Motion at paragraphs 6 et seq.

IT-06-90-A 5434

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(i) It directly contradicts the Trial Chamber’s finding that the

primary cause for the departure of Serb civilians was HV’s

unlawful shelling and that the evacuation order had no

demonstrable effect on their decision to leave;

(ii) It establishes that no civilian questioned by [REDACTED]

claimed contemporaneously to have left because of HV

shelling. As discussed below, Serb propaganda later attempted

to shift the blame for the departure of Serb civilians. Moreover,

it matches the proposed additional evidence of [REDACTED],

which the Prosecution sought to dismiss as hearsay.7 With this

new evidence, the [REDACTED] is now fully corroborated.

Finally, Krajina Serb refugees comments’ to [REDACTED];

(iii) It is consistent with evidence that no Serb civilian at the time

claimed to have left Krajina as a result of HV shelling8; and

(iv) In addition to corroborating the timing and cause for the

evacuation, it contradicts any suggestion that the evacuation

order had no demonstrable effect on the decision by Serb

civilians to leave and that the departure had already been

triggered by HV artillery.

7. [REDACTED] is a [REDACTED], which chronicles the following

matters:

(i) It records the RSK’s request to the UN to facilitate the

evacuation of 32,000 civilians.9 This evidence corroborates

trial evidence.10

(ii) The report’s population figure (32,000) frames the timing for

the Serb civilian departure (and its cause) as it represents the

number of civilians in the area at the commencement of

Operation Storm.11 Thus, when RSK authorities were seeking

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!7 First Rule 115 Motion, Exhibit 11. 8 Reply Brief, paras. 75-88. 9 Page 2 (R027-4575). 10 See Trial Judgment, pars 1525 and references given therein. 11 The Trial Chamber found that 15,000 of the 32,000 were in Knin. (Trial Judgement, paragraph 1233). Witness Dangerfield contemporaneously recorded that the RSK authorities wanted to move all 15,000 from Knin by means of evacuation (P698, paragraph 13) thus

IT-06-90-A 5433

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UN assistance (in the afternoon of the 4th of August at around 6

p.m.,12 i.e., more than twelve hours after the artillery campaign

had begun), civilians had not yet left the area. This narrows the

timeframe of the civilian departure to the late afternoon of 4

August. It also exposes the erroneous suggestion that HV

artillery caused civilians to leave.

(iii) It records that at midnight on 4 August, MRKSIC stated on

Radio Petrova Gora (Sector North) that “the civilian

population of Knin was being evacuated.” This is consistent

with a similar broadcast made earlier that day by MRKSIC on

Radio Belgrade,13 and suggests that the same message was

broadcast by RSK authorities throughout the latter part of 4

August on different radio stations.

(iv) Lastly, this document demonstrates that:

a. Serb civilians were leaving, not because of shelling, but

because they were “being evacuated” by the Serb

authorities; and

b. No RSK official claimed at the time that civilians had

departed because of HV shelling.14

8. [REDACTED] is another [REDACTED] which contains the following

evidence:

(i) According to MARTIC, the Serb civilian departure was caused

by their perception that Serbian leadership had let the civilians

down and exposed them to Croatian encirclement: “MARTIC

explained that population fled because they felt the SERBIAN

leadership cheated them. According to MARTIC, ARSK HQ

Commander General MRKSIC remained near BANIJA and !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!demonstrating that the civilian population did not leave Knin prior to the evacuation order being issued. 12 Trial Judgement, para 1525. 13 D-106; D-713. 14 See Martic’s comment at proposed exhibit [REDACTED] blaming the authorities of Serbia without mentioning any conduct by the HV; proposed Exhibits 5, 7 and 8 of the First Rule 115 Motion; Mrksic, T.18935:7-18936:2; D1461(Lazarevic, SVK Intelligence Agent), pg.33; D926; [REDACTED] T.18477; D928 (SVK General Sekulic), pages 22,24; D1516 (SVK Commander of Knin), page 2; D435 (SVK Commander of Gracac), page 2; D520 (SVK Commander of Obrovac), page 1; D828 (SVK Commander of Benkovac), page 4.

IT-06-90-A 5432

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KORDUN in order to take the civilians out of CROATIAN

encirclement.” This, again, is consistent with trial evidence and

other proposed new evidence that the evacuation order was

issued to remove the population before Croatian forces

encircled Serb forces, and not because “shelling” was already

causing Serb civilians to flee.15

(ii) The document is relevant to the following issues:

(a) It provides additional evidence that the Serb civilian

departure was unrelated to HV shelling;

(b) It is further corroborated by the absence of any

contemporaneous claim by the Serb leadership that

civilians were leaving because of HV shelling; and

(c) It is consistent with the record evidence that the Krajina

Serbs preferred to leave the Krajina if Serbia would not

send the Yugoslav Army to fight in the Krajina.

Specifically, an RSK intelligence assessment prepared

the day before Operation Storm began described the

mood in the Krajina as follows:

Furthermore, the citizens believe that we are not able to defend ourselves and that, should there be no significant help by the FRY it would be better for the people to resettle in other areas rather than stay here to face encirclement and death.16

Martic’s comment on 10 August blaming the FRY

(Serbia) is thus consistent with the RSK intelligence

assessment on the day prior to Storm that the Krajina

Serb population preferred to leave and “resettle in other

areas” if the FRY (Serbia) did not intervene in the

conflict and prevent Croatian “encirclement” of the

Krajina.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!15 Gotovina Final Trial Brief, pars 160-164; 354 and references contained therein. See also First Rule 115 Motion, Exhibits 1-19. 16 D1495, page 4.

IT-06-90-A 5431

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9. The record of these proceedings and the proposed additional evidence

reflect that in August 1995 all parties attributed the Serb civilian

departure to the RSK decision to evacuate the population, and was not

attributable to HV artillery shelling. Those pertinent parties are as

follows:

(i) [REDACTED];17

(ii) [REDACTED];18

(iii) Independent observers, such as [REDACTED]19 and the United

States’ Ambassador Peter Galbraith;20

(iv) The Serbian leadership at all levels (reflected inter alia by the

Mrksic radio broadcasts);21

(v) Krajina Serb civilians, supposedly evicted through shelling, had

no contemporaneous awareness of that fact;22 and

(vi) Those such as [REDACTED].23

10. The Defence submits that the Appeals Chamber should consider the

proposed new evidence (REDACTED) together with Exhibits 1-19 of

the First Rule 115 Motion. These three exhibits were in the

Prosecutor’s possession but were not disclosed to Appellant until after

he filed his first Rule 115 Motion. Appellant therefore has good cause

for tendering this evidence at this state of the appeal.

III. CHRONOLOGY

11. The Defence position is supported by those in a position to have

known the reasons for the evacuation and is consistent with the

chronology outlined below. In its Final Trial Brief (pars 330-372), the

Defence provided a sequential account of the Serb civilian evacuation.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!17 See e.g. below proposed additional exhibits [REDACTED] and [REDACTED] as Annex A and B. 18 See e.g. below proposed additional exhibit [REDACTED] annexed to the present filing as Annex C. 19[REDACTED], First Rule 115 Motion. 20 See e.g. Exhibit 10 First Rule 115 Motion. 21 See e.g. [REDACTED] (Annexes A-C to the present filing). See also Exhibits 1-9, 16, 18 of the First Rule 115 Motion. See also supra, fn.14 22 See e.g. [REDACTED] (Annex C to the present filing); Exhibits 12-19 First Rule 115 Motion. See also Vujnovic,T:4566:1-4567:7; P-723(Mirkovic),para.6. 23 See e.g. [REDACTED] annexed to the present filing as Annex C (concerning UNHCR); and [REDACTED]

IT-06-90-A 5430

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The principal events in that chronology may be summarized as

follows:

A) Preparations for evacuation

12. Prior to Operation Storm, Serb authorities extensively prepared for

possible evacuation (see Final Trial Brief, pars 332-341, and references

cited therein).24

13. By 2 August 1995, all evacuation preparations had been made (Final

Trial Brief, paragraph 341, and references cited therein).25 Proposed

additional evidence supports and corroborates the same view (see e.g.,

Exhibits 16 and 19 attached to the First Rule 115 Motion).

B) Build-up to the evacuation order

14. In Obrovac (one of four towns supposedly subjected to HV artillery),

preparations for the evacuation of the civilian evacuation began before

Operation Storm had commenced.26

15. At 5.00 hours on 4 August 1995, Operation Storm began.27

16. At approximately 13.00 hrs., Serb civilian convoys passed through

Knin from frontline villages, and were being evacuated pursuant to the

RSK’s evacuation plan.28

17. Despite the shelling, by the early afternoon, there was no indication

that Knin civilians were fleeing.29 ROBERTS advised the media at

14.15 hrs. that there was no panic in Knin,30 and later told CNN that “it

is rather calm, but people inside Knin are rather concerned what may

follow next.”31

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!24 See, generally, P-698, para.15; D-1495, pg 4; Liborius,T:8588:4-23; D-934,pg.2; D-1465,pg.241; D-923,pgs.16,20; D-1512; D-939; Mrksic,T:18825:6-18826:1; Novakovic,T:11854:19-11855:2; Forand,T:4383:4-4384:12; D-933,pg.8; D-140; D-136; Novakovic,T:11989:4-12; Mrksic,T:18820:4-5; D-255; D-936; D-254; D-138; D-1514;[REDACTED]. 25 See, in particular, D-256; D-938. 26 D-522,pgs.2-3; D-523; D-524; D-1494(REDACTED),pg.2. 27 Trial Judgement, paragraphs 1245, 1262. 28 P-289(REDACTED),para.1a;[REDACTED]; D-1494[REDACTED],pg.2;[REDACTED]; Novakovic,T:11864:1-22. 29 D-1369; D-1370,pg.2. 30 D-712; D-1374; Roberts,T:7092:16-7093:5. 31 D-1369.

IT-06-90-A 5429

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18. MRKSIC reported to GENERAL PERISIC in Belgrade that the HV

“made a breach toward Crvena Zemlja [in the mountains above Knin]

at 14.30 hrs.”32 At 15.00 hrs., MRKSIC told Radio Belgrade that the

ARSK was “still firmly in control of the forward front line; the

Croatian Army was unable to seriously breach our lines, except on the

route leading from Grahovo via Crvena Zemlja to Knin.”33 MRKSIC

also reported that he had no communications with ARSK positions on

the Dinara, Svilaja, Promina, Gracac or Korenica.34

19. At 15.30 hours, ARSK soldiers began retreating in a panic from the

Dinara Mountain into Knin. After observing soldiers in the hospital

area yelling “treason,” doctors immediately began asking whether the

hospital would be evacuated.35 At this same time, the RSK police

commander in Crvena Zemlja [in the mountains above Knin] returned

to Knin and stated that the “situation was bad, we had losses in

combat, and our defence lines were disintegrating.”36

20. Thereafter with Serb defences disintegrating, ARSK forces risked

military encirclement. At 16.00 hrs., ARSK intelligence reported that

the HV had taken over dominant peaks on the Dinara Mountains, and

was in position to break into the Knin vicinity, and that the Croatian

MUP Special Police had broken through at Mali Alan on the Velebit

Mountains.37

21. At 16.00 hrs., MRKSIC informed MARTIC that he had lost

communication with his units in the Dinara foothills, more specifically

Crvena Zemlja.38 MRKSIC feared that the frontline would be broken

and that there was no second line of defence. MRKSIC understood that

continued resistance would result in street fighting and huge civilian

losses.39

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!32 D-1518. 33 D-1258. 34 D-1494[REDACTED],pg.2. 35 D-161,pg.5. 36[REDACTED]. 37 D-1519. 38 [REDACTED]para.9. 39 [REDACTED] para.9. UN personnel assessed RSK/ARSK options in much the same way. P-968(Simic),para.15.

IT-06-90-A 5428

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22. Also around 16.00 hrs., MLADIC told MARTIC that the VRS would

not assist over the next three days.40 MARTIC then realized that a

previously planned VRS counter-offensive against Gotovina’s forces

would not be implemented and HV forces would not face VRS

opposition prior to entering Knin.41

23. By 16.00 hours, the ARSK faced encirclement, as described by

GOTOVINA at the Brioni Meeting.42 The only way to leave Knin and

Sector South was a curving, winding road toward Otric and Srb.43 The

breakthroughs on the Dinara (Crvena Zemlja) and the Velebit (Mali

Alan) created a “major danger” that the last escape route would be cut

off at the Otric notch.44 In light of this encirclement threat, the RSK

Serb leadership made a “political decision” to evacuate sometime

shortly after 16.00 hrs.45

24. As RSK President and the commander-in-chief, MARTIC was fully

aware of the situation,46 and at approximately 16.30 hrs., MARTIC

asked BABIC in Belgrade if international intervention could stop

Operation Storm.47 BABIC advised that he had spoken to U.S.

Ambassador GALBRAITH, who said that the HV would not stop.48

BABIC told MARTIC to “pull the people out of there” and “get out of

that hole.”49 MARTIC and BABIC then agreed that they would order

the evacuation.

25. Proposed [REDACTED] further corroborates that Serb forces were

unable to defend the area and that MARTIC was aware of the need to

avoid the risk of encirclement.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!40 [REDACTED]para.10. 41 [REDACTED]para.11. 42 P-461,pgs.9,11,12,24-25. 43 Mrksic,T:18831:25-18832:13. 44 Mrksic,T:18929:12-25;18834:6-18835:19;18949:5-15; Novakovic,T:11960:4-16; D- 1516,para.9;[REDACTED],T:18484:10-23. 45 Mrksic,T:18930:18-18931:8. 46 See, generally, D137. See also Gotovina Final Trial Brief, pars 342-357 and references cited therein. 47 D-927. 48 Novakovic,T:11728:23-11729:3, and Mrksic,T:18930:11-18931:8. The conversation between GALBRAITH and BABIC on 4 August is independently confirmed by D-1993. See also D-1494,pg.2. 49 D-927.

IT-06-90-A 5427

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26. At approximately 16.30 hrs. NOVAKOVIC was called to a meeting by

MRKSIC to “see what we are going to do with the population, since it

is at risk”50 that the “army and the entire population would find

themselves encircled.”51 See [REDACTED] attached to the First Rule

115 Motion.

27. Fifteen minutes later, at 16:45, MARTIC signed the order to begin the

“planned evacuation” of civilians.

28. Thereafter, the evacuation order was broadcast on several radio

stations. For instance, it was broadcast around 21:00 hrs. on Radio

Belgrade.52 [REDACTED] corroborates that the evacuation order was

also broadcast later that day on Radio Petrova Gora in the Krajina.

International witnesses noted that the evacuation order had been

broadcast over the radio in Knin.53 [REDACTED] demonstrates that a

similar broadcast was received in Benkovac.54

29. The Trial Chamber concluded that these broadcasts had no effect on

Serb civilians. To the contrary, [REDACTED] demonstrates that “all”

Serb civilians with whom [REDACTED] had contemporaneous

contact [REDACTED] advised both that they heard those radio

broadcasts and that their departure was directly related thereto.

30. The Serb leadership then asked the UN to provide fuel specifically to

evacuate the 32,000 civilians to Petrovac and Banja Luka, which,

unlike Srb, were large enough to handle the planned population

influx.55 For reasons noted above, the unchallenged56 figure of 32,000

thousand civilians is important for purposes of timing: when Serb

authorities were executing their evacuation plan, civilians had not left

the area as a result of HV shelling.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!50 Novakovic,T:11728:14-17. 51 Novakovic,T:11729:12-21. See also Mrksic,T:18935:7-18936:2;[REDACTED]. 52 See below. 53 See below, at paragraph 53.. 54 See, in particular, par 11. 55 D-1520,pg.17; D-182; D-337,para.4; Forand,T:4422:4-12; Al-Alfi,T:13884:2-13886:15. 56 See e.g. Prosecution Final Trial Brief, par 640.

IT-06-90-A 5426

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C) Evacuation order and evacuation of Serb civilians

31. After MARTIC signed the “planned evacuation” order at 16.45 hrs.,57

the ARSK Main Staff certified the order at 17.20 hrs.58 Referring to the

danger of encirclement at Otric and with no mention of “shelling of

civilians,” MARTIC’s order states that it is being issued because “a

large part of the territory of Northern Dalmatia and part of Lika have

become threatened.”

32. [REDACTED] corroborate that such an order existed and was issued

by RSK authorities.

33. It was immediately understood by all what was being done by the local

Serbian authorities. Proposed Exhibit 7 annexed to the First Rule 115

Motion summarises the point of view of informed RSK authorities):

“Unfortunately, such an order was issued in all the municipalities of Dalmatia and Lika, which would be the act of GALA [sic] BETRAYAL, by the President MARTIC's and his loyal generals.”

* * * *

“Having received further information I found out that on 04.08.1995 until 16:00 hours, no one in Knin or any other place didn't even think about the evacuation until the moment President MARTIC signed the act of BETRAYAL.

* * * *

“In regards to the above mentioned, and I suggest in the name of the expelled, betrayed and dishonoured persons to carry out investigation about who was responsible for the mass exodus of Serbs.”

* * * *

“To the knowledge of soldiers from Benkovac, they moved the l/f [frontline] in their advantage on 04.08.1995, but when they got the order to move out the people, everything changed in advantage of Ustasha’s. I kindly ask you one more time to investigate the responsibility of MARTIC and his advisers.”59

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!57 D-137. 58 D-137. 59 See again First Rule 115 Motion, par 9(vii).

IT-06-90-A 5425

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34. The MARTIC order states that the evacuation is to move “towards”

Srb and Lapac, with no final destination indicated.60 According to the

Mayor of Knin, Drago KOVACEVIC,61 and Dusan SINOBAD,62 the

RSK leadership had agreed that the evacuation would be into Petrovac

and Banja Luka in the RS.

D) Evacuation order publicized by Serb authorities

35. At approximately 17.00 hours, the RSK MUP Minister issued an order

to remove critical population records, including birth records. Clearly

RSK leadership foresaw that civilians permanently leaving Krajina

would need personal records outside Croatia.63

36. Between 17.30 and 18.00 hrs., the evacuation order arrived in

Benkovac,64 and at 18.00 hrs. officials met in Benkovac to discuss its

implementation.65 At 18.20 hrs., an order was issued for military

logistics to be used to evacuate civilians,66 and at 19.00 hrs., the

military began to evacuate the civilian population67 from Benkovac.68

37. At approximately 18.00 hrs., the evacuation order was released to

journalists and the broadcast media.69 SEKULIC reported that the

decision was announced to the public at 20.00 hrs.70 LIBORIUS,71

DYKSTRA,72 and HENDRIKS73 all confirmed that radio broadcasts

relayed the evacuation order, with LIBORIUS reporting that the

broadcast stated the destination for the evacuation was RS. On Radio

Belgrade at 21.00 hrs. MRKSIC announced that the ordered

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!60 The town of Srb was home to 1450 people according to the 1991 census so it would have been logistically impossible for 32,000 civilians to be evacuated to a town that housed only 1450 people. C-5. 61 D-326 (Kovacevic quotes Mrksic as saying, “what do you mean by Srb, we need to go further than!Srb…!further!toward!Petrovac!and…!Banja!Luka.”).!62 P-2362(Sinobad),para.26; Sinobad,T:16976:4-25. 63 D-254,[REDACTED]. 64 Vukasinovic,T:18560:18-18561:7. 65 D-1499(Vukasinovic),paras.11-15. 66 D-161,pgs.6-7. 67 D-828,pg.3. 68 P-2362(Sinobad),para.25. 69 Novakovic,T:11814:24-11815:12. See proposed additional exhibit [REDACTED] 70 D-928,pg.23; D-1516,para.6. 71 Liborious,T:8382:24-8383:10; P-804; P-1290,pg.5. 72 Dykstra,T:4784:9-4785:12. 73 D-820(Hendriks),pg.4; Hendriks,T:9747:1-16.

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evacuation was underway “to prevent [the population] from falling

captive, because Knin and the communications leading from Knin are

in danger.”74 FORAND was also on the radio that evening reporting on

the evacuation order.75

38. The order was quickly disseminated and civilians started to leave. For

example, in Knin, MARTI reported that at 18.30 hrs. the situation was

so calm that his UNMO team had been invited to a Serb family home

for “sauerkraut, meat, bread and rakija.”76 At 19.30 hrs., the family

broke into a panic because there was information that “the Croats were

coming and nothing could stop them and they were going to kill us

all.”77 With people demanding fuel to get away,78 the mass evacuation

of Knin began around 20.00 hrs.79 See [REDACTED] attached to the

First Rule 115 Motion.

39. At trial Serb civilians testified that on 4 August RSK officials told

everyone to leave because the “Ustashe” were coming. RSK officials

were distributing fuel, and civilians left even though their villages had

not been shelled.80

40. Proposed [REDACTED] corroborates that the mixed evacuation of

civilians and ASK members, and its timing, were triggered by the

Martic order and carried out pursuant to the plan of RSK authorities.

41. As the UN Secretary General reported to the Security Council,81 the

Serb civilian departure was “orderly,”82 and coordinated.83 Exhibit 6

annexed to the First Rule 115 Motion reflects that “[t]he population of

Knin was evacuated in a relatively orderly way.” See [REDACTED].

Similarly, proposed additional exhibits [REDACTED] provide

evidence of the following:

a. the evacuation order was broadcasted on radio; !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!74 D-106; D-713. 75 D-328. 76 Marti,T:4672:23-4673:2. 77 P-417(Marti),para.35. 78 P-417(Marti),para.35. 79[REDACTE]),pg.2. 80 Vujnovic,T:4566:1-4567:7. See also P-723(Mirkovic),para.6. 81 Trial Judgment, par 1539. See also First Rule 115 Motion, par 9(vi) and footnote 32. 82 Flynn,T:1308:15-18;[REDACTED]. 83[REDACTED].

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b. the information was received by civilians; and

c. civilians acted upon that order.

E) Serb civilians explain the reason for their departure from Krajina

42. Immediately upon their arrival in Serbia and Bosnia-Herzegovina,

Krajina Serb civilians explained the circumstances of their departure

from the Krajina.

43. As [REDACTED], Serb Krajina civilians advised those helping them

in BiH that they had left because of the evacuation plan.84 Not one

referred to HV shelling as a reason of their departure.

44. The Defence’s case at trial was that the overwhelming majority of

Krajina Serbs left the Krajina as a result of evacuation orders issued by

the Krajina Serb leadership over radio stations.85 The Trial Chamber

ultimately rejected the Defence’s argument because the Krajina Serb

evacuation order had “little or no influence on [the] behaviour” of the

civilian population (Trial Judgement, paragraph 1537), and “reviewing

the testimonies of people who left their homes, there are no or few

indications that their decisions to do so was initiated by RSK or SVK

[Krajina Serb] authorities” (Trial Judgement, paragraph 1539).

45. Per proposed [REDACTED], upon their arrival in Serbia, Krajina Serb

civilians likewise discussed their departure: “all” testified that they had

left as a result of the evacuation order. As was the case upon their

arrival in BiH, not one referred to HV shelling as a reason for their

departure. This new exhibit thus establishes the link between the

Krajina Serb radio broadcasts ordering the evacuation and the

decisions of individual Krajina Serb civilians to leave. As noted

above, the Trial Chamber claimed this link was missing at trial.

46. As noted, this new exhibit is consistent was the understanding of those

who were receiving pertinent information such as [REDACTED], and

United States’ Ambassador (Exhibit 10 First Rule 115 Motion). i.e.,

that the civilian population had left as a result of evacuation orders by

the Krajina Serb authorities.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!84 First Rule 115 Motion, [REDACTED]. 85!Defence!Final!Trial!Brief,!paragraph!363.!

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47. Not a single Serb civilian claimed to have left Krajina because of

unlawful HV shelling. See [REDACTED] the First Rule 115 Motion.86

48. The Serbian authorities in Belgrade were also aware of the

circumstances triggering the Serb civilian departure. Proposed

Exhibit 1 (First Rule 115 Motion) encapsulates that understanding in

the words of President Slobodan Milosevic:

“You are the most professional part of our Army. As you know, there was an order for all to leave Krajina on that day without even getting in contact with the Croatian Army at major part of the front.”

* * * * “The question is who made a decision for the Krajina leadership to leave Krajina? A decision was made which caused the exodus and it was made in a situation when they had all conditions provided for the defence. This was supposed to be the reason for Yugoslavia to rush to that area and defend those territories which they left running away as fast as they could?!”

* * * * “According to the reports from the police officers, citizens and other people, they ordered people to start running away as soon as the artillery preparation stopped!”87

49. In a letter to the “Representative Office of the RSK” in Paris, RSK’s

“Foreign Minister,” Slobodan Jarcevic, explained the reason for the

departure of Serb civilians in those terms:

“The rapid collapse of the Army of the Serb Krajina on the 4th and 5th of August did not ensue as a result of Croatia’s victory, but rather was a consequence of the decision to withdraw with the population, under unclarified circumstances. No one has assumed responsibility for such an order.”88

50. To render its conclusions, the Trial Chamber could only cite to the trial

testimony of Kosta NOVAKOVIC who claimed that evacuation order

was issued so as to “bring some order in the events that were already

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!86 First Rule 115 Motion, par 9(c). 87 See First Rule 115 Motion, par 9. See Exhibits 2-9 annexed to the First Rule 115 Motion. 88 Exhibit 5 annexed to the First Rule 115 Motion paragraph 9(v).

IT-06-90-A 5421

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unfolding.”89 Deeply involved in the disgraced evacuation process, his

self-serving testimony was designed to shift the blame to the Croatian

forces. To put the Trial Chamber’s findings in context, in all other

locations in the Krajina except the four towns for which General

Gotovina was convicted (Knin; Obrovac; Benkovac; Gracac), the Trial

Chamber found there were other reasonable explanations for the

departure of Krajina Serbs, unrelated to the HV artillery and consistent

with Gotovina’s innocence.90 The Trial Chamber never explained why

these same explanations become unreasonable in relation to the four

towns at issue.

51. Furthermore, in reciting the evidence the Trial Chamber noted that

every international witness present in Knin except Roberts testified

that the civilian population did not begin to leave Knin in any

noticeable manner until the evening of 4 August, i.e., after the

evacuation order was issued.91 Inexplicably, the Chamber chose to

believe Roberts’s claim as the “only reasonable explanation of the

evidence,” despite the fact that Roberts’s trial testimony was

contradicted by his contemporaneous statements on 4 August in the

afternoon in which he said that the situation was “calm” and that there

was “no panic” in Knin, “but people inside Knin are rather concerned

what may follow next.”92

IV. ADMISSION OF THREE NEW DOCUMENTS

52. These three proposed documents discussed above meet the admission

requirements of Rule 115. The relevance to General Gotovina’s

Appeal was outlined in paragraphs 6-8, 12-16 of the First Rule 115

Motion, and submissions contained therein are adopted in relation to

the three new additional documents.

53. These documents were both unavailable at trial and not discoverable

through the exercise of due diligence. Given the Prosecution’s failure

to fulfill its disclosure obligation, Rule 68bis sanctions would provide

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!89 Trial Judgment, paragraph 1537. 90 Trial Judgment, paragraphs 1754, 1755 and 1762. 91 Trial Judgment, paragraphs 1562-1575. 92 Supra, paragraph 17.

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little relief. It would be unfair and unjust were the Defence denied the

opportunity to admit these materials merely because of the

Prosecutor’s failure to meet his disclosure obligations.

54. The proposed evidence exposes the Trial Chamber’s findings as unsafe

and unreasonable or, at the very least, creates numerous reasonable

inferences in favour of the accused.93 Without question the proposed

additional evidence would have been a decisive factor at trial.94

55. In light of the foregoing and pursuant to Articles 20-21 of the Statute

and Rule 115, the Appellant requests that the Appeals Chamber admit

in evidence the three documents attached to the present motion as

Annex A-C.

V. MISCELLANEOUS MATTERS

A) [REDACTED]

56. [REDACTED]

57. [REDACTED]

B) Additional Evaluation of lawfulness of artillery use during Storm

operation

58. General Granville-Chapman is a retired 4-star British General with

extensive experience and artillery expertise.95

59. His proposed statement (attached as Annex E) provides further

corroboration of the proposed evidence of Major General Scales,

Lieutenant General Shoffner, and General Griffith.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!93 See e.g. Vasiljevic Appeal Judgment, par 120; Vasiljevic Trial Judgment, pars 68-69. 94 Prosecutor v Nahimana et al, Decision on Appellant Jean-Bosco Barayagwiza’s Motions for Leave to Present Additional Evidence Pursuant to Rule 115 or the Rules of Procedure and Evidence, December 8, 2006, par 6; Prosecutor v. Nahimana et al, Public Redacted Version of the Decision on Motions Relating to the Appellant Hasan Ngeze’s and the Prosecution’s Request for Leave to Present Additional Evidence of Witnesses ABC1 and EB, November 27, 2006, par 20; Prosecutor v. Krstic, Decision on Application for Admission of Additional Evidence on Appeal, August 5, 2003, p 3; Prosecutor v. Mejakic et al., Decision on Joint Defence Motion to Admit Additional Evidence Before the Appeals Chamber Pursuant to Rule 115, 16 November 2005, par 10. 95 Exhibit F.

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60. In addition, General Granville-Chapman’s evidence assesses the

lawfulness and supposedly “indiscriminate” nature of HV’s artillery

during Operation Storm with the following points:

i. the amount of artillery rounds used was modest in comparison

to the overall military characteristics of the operation;

ii. clear indications that those carrying out the artillery campaign

showed particular care in “laying the guns”;

iii. accuracy of artillery fire was remarkable;

iv. no military or technical justification for the Trial Chamber’s

adoption of a 200-meter rule; and

v. even for today’s much higher weapon accuracy, the standard

set by the Trial Chamber could not be achieved.

61. For the same reasons as explained in the First Rule 115 Motion

concerning the expert testimony of Generals Scales, Shoffner and

Griffith, the proposed evidence is credible, reliable and relevant, and

was neither available at trial nor could have been discovered through

the exercise of due diligence because the Defence had no notice of the

Trial Chamber’s case concerning the 200M Rule. It is therefore

admissible. The Defence otherwise adopts by reference the

submissions made in its First Rule 115 Motion regarding the proposed

evidence of Major General Scales, Lieutenant General Shoffner, and

General Griffith.

VI. CONCLUSIONS AND RELIEF SOUGHT

62. In light of the foregoing, and for the reasons provided, the Appellant

requests that the Appeals Chamber provide the following relief:

(i) Because the documents in the First and Second Rule 115

Motions mutually corroborate and reinforce each other, stay its

decision on the First Rule 115 Motion and decide the admission

of documents annexed to that Motion together with those

attached to the present Motion;

(ii) In order to avoid delays, reduce the briefing schedule timetable

and order the Prosecution to respond to the present motion

within ten (10) days; and

IT-06-90-A 5418

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(iii) Admit each and every proposed additional document and

witness statement pursuant to Rule 115. !

!

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Word!Count:!4803! ! !

Dated:!30!March!2012! ! ! ! !

! ! ! ! ! ! ! !

!!

!Payam!Akhavan! ! ! ! Guénaël!Mettraux!Defence!Counsel!for!Ante!Gotovina!

IT-06-90-A 5417

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!!!!!!!!!!!!!!!!!!!!

ANNEX A

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REDACTED

IT-06-90-A 5415

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ANNEX B

IT-06-90-A 5414

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REDACTED

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ANNEX C

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REDACTED

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ANNEX D

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REDACTED

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ANNEX E

IT-06-90-A 5408

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