Susan Somers, representative of the ICTY Office of the Prosecutor, Professor Zeljko Horvatic, representative of Croatia, and members of the Referral Bench insisted on the legal aspects of the referral, while representatives of Serbia and Montenegro and defence counsel raised a number of criticisms at the expense of the Croatian judiciary, claiming that "a fair trial is possible only before the War Crimes Tribunal in Belgrade".
"Croatia cannot ensure a fair trial" for Mile Mrksic, Veselin Sljivancanin and Miroslav Radic, who were indicted for their role in the slaughter of 264 wounded people and civilians from the Vukovar hospital on the Ovcara farm in the late autumn of 1991, said the representatives of Serbia and Montenegro and counsel for the accused.
In support of their arguments, they cited criticisms raised by the Organisation for Security and Cooperation in Europe (OSCE) in connection with previous trials of Serbs in Croatia, the ban on the extradition of citizens of Serbia and Montenegro, the ongoing proceedings against the three men in Vukovar, the murder of ICTY witness Milan Levar, and the pressure of the public and the government as evident from statements by Justice Minister Vesna Skare Ozbolt and Deputy Prime Minister Jadranka Kosor about the referral of trials.
The representatives of Serbia and Montenegro also said it would be impossible for the present defence attorney to represent the accused in Croatia, and that the accused would be tried under a more lenient law in Serbia and Montenegro.
Professor Horvatic, who serves as an adviser to the Croatian minister of justice, rejected the objections, saying that the ability of the Croatian judiciary to administer justice could not be judged on the basis of "isolated examples when the judiciary went astray".
"All that is behind us now. The situation in Croatia and in Serbia and Montenegro is different than it was ten years ago," Horvatic said. In his presentation, he place emphasis on the capacity of war crimes tribunals in Croatia, the possible application of international law to command responsibility, and other legal issues.
"This case will be referred to Zagreb, although there have been views that they should be tried in Vukovar," Horvatic said in connection with the ongoing in absentia proceedings in the town where the crimes had been committed.
Horvatic challenged the relevance of the objection by the defence to a statement in Croatia's brief that "upon referral, the case will be transferred to a competent court for further procedure and sentencing," saying that a sentence can also be an acquittal.
"Political elements only bring disquiet and distrust, although they should also be taken into consideration. But to what extent they can influence legal arguments will be decided by the Bench," the Croatian representative said in an effort to calm the debate.
Towards the end of 2004 the ICTY Office of the Prosecutor proposed that the trial of the accused, known as the Vukovar Three, be referred to Croatia or alternatively to Serbia and Montenegro, and the two countries filed written submissions to present their arguments for taking over the case.
"The Bench must first decide whether the case should be referred at all," Prosecutor Somers said.
Somers said that in referring cases there was a principle under which precedence was to be given to the country in which a crime was committed, which in this case is Croatia.
She pointed out that a trial for command responsibility would be in "sharp contrast" to the trial of direct perpetrators of the massacre which is taking place in Belgrade.
The representatives of Serbia and Montenegro cited as their main advantage the current trial of 17 persons in the Ovcara case in Belgrade.
"The Ovcara trial has shown that Serbia and Montenegro's judiciary is capable of administering justice according to the highest international standards. A joinder of the cases would ensure substantial economy and unity of justice," the Chairman of Serbia and Montenegro's Council for Cooperation with the ICTY, Rasim Ljajic, said during the debate.
The referral of the trial to Serbia and Montenegro would be important for "confronting the public with the crimes committed" and would contribute to reconciliation in the region, he added.
Ljajic went on to say that the referral of the case to Croatia would give rise to "the opposition of the public (in Serbia and Montenegro) to the cooperation with the ICTY."
Presiding Judge Alphonse Orie said that the opinion given in the Norac and Ademi case by amici curiae Professor Mirjam Damaska and Professor Davor Krapac -- under which the Criminal Code of the former Yugoslavia applies -- would be relevant to the issue of application of law. Both Croatia and Serbia and Montenegro have adopted the Criminal Code of the former Yugoslavia.
The judge said that in deciding on the matter the Bench would protect the interest of the victims that the trial should be held in their country and would protect the right of the accused to a fair trial.
General Mile Mrksic, commander of the Yugoslav People's Army First Guards Brigade, and his subordinate officers Veselin Slivancanin and Miroslav Radic were indicted in November 1995 for the massacre that took place on the Ovcara farm outside the eastern Croatian town of Vukovar on 20 and 21 November 1991, when 264 wounded people and civilians taken from the Vukovar hospital were killed.
Mrksic surrendered to the ICTY in May 2002, while Sljivancanin and Radic were arrested in Serbia in 2003.