The indictment charges the three generals with crimes committed against the Serb population before, during and after Operation Storm, from July to November 1995, in an ethnic cleansing campaign devised as part of a joint criminal enterprise.
The generals' attorneys submitted motions contesting that the prosecution's evidence supports the allegation that there was a state of armed conflict at the time and place relevant to the indictment, from which it follows that the prosecution is applying international law wrongly.
In order to support their attempt to challenge the existence of an armed conflict, lawyers for Cermak and Markac refer in their motion to a report by the UN Secretary General submitted at that time. They claim that the situation on the ground at the time, particularly after Operation Storm which lasted several days, could be described not as a "state of internal armed conflict" but as a "state of tension and turmoil" to which some other international laws apply. They claim that the rebel Serb leadership and forces "collapsed" so fast that the allegation of armed conflict cannot be true.
Gotovina's lawyers challenge the tribunal's jurisdiction on five more grounds.
They challenge the prosecution's criterion according to which Gotovina is responsible because the crimes were a "probable consequence" of the joint criminal enterprise. What arises from this is that every commander would be criminally liable because the probability of crime always exists, defence counsel says. The applicable criterion at the Hague tribunal is narrower only if the crime was a "foreseeable consequence".
Since the prosecution is not treating the conflict as an international conflict, Gotovina's defence counsel claim that their client could therefore not be charged with deportation and forcible resettlement of civilians.
Also, responsibility for ethnic cleansing cannot be extended to the time before the establishment of Croatian authority either, because it was only with the establishment of Croatian control over the occupied areas that the necessary legal standards envisaged by relevant international laws were met. Equally, the defence claims that in conditions of an armed conflict which is not an international conflict, a state cannot be accused of colonising its own territory.
Finally, Gotovina's defence contests that their client can be charged with crimes committed after Operation Storm because on completion of the military operation, this no longer constitutes a breach of international humanitarian law.
Defence counsel also believe that charges of inhumane acts and abuse cannot be extended to cover the time before Croatia regained control over its occupied areas.
Gotovina's lawyers have asked in their motion that they be allowed to explain their positions orally. They also call on the trial chamber to dismiss the joint indictment which charges the three generals with crimes committed during and after Operation Storm due to absence of laws that may apply to the acts described.
In their second motion, Gotovina's lawyers requested the trial chamber to order the prosecution to complete the indictment due to a number of ambiguities.
The trial of the three generals is due to begin on May 7.
Defence teams in a number of cases at the Hague tribunal tried to challenge the tribunal's jurisdiction on different grounds, but so far to no avail.