1 Monday, 22nd March, 1999
2 (Closing Submissions)
3 (Open session)
4 --- Upon commencing at 2.06 p.m.
5 (The accused entered court)
6 JUDGE RODRIGUES: Good afternoon, ladies and
7 gentlemen. Can the interpreters hear me well?
8 THE INTERPRETER: Yes, Your Honour. Thank
10 JUDGE RODRIGUES: Good afternoon to you.
11 Good afternoon to the Prosecution, counsel for the
12 Defence, the court reporters. Good afternoon to
13 Mr. Aleksovski as well.
14 We are sitting today to resume our
15 proceedings. Now that we have the decision of the
16 Appeals Chamber, we are within the framework of Article
17 86 of our Rules, and I say that for the benefit of the
18 public, to whom I also wish to say good afternoon.
19 Rule 86 says that, after the presentation of
20 all the evidence, the Prosecutor may present a rebuttal
21 argument, to which the Defence may present a
22 rejoinder. I think that we have to ask several
23 questions before undertaking the closing arguments.
24 During the Status Conference of the 20th of
25 October, 1998, the Chamber asked the parties to submit
1 their closing arguments in writing, in which they would
2 specify the envisaged duration of their intervention
3 for the closing arguments. The parties did not specify
4 how long they intended to take.
5 During the Status Conference of the 24th of
6 August, 1998, the parties agreed to submit their final
7 briefs on the same date, but they said nothing
8 regarding the subject of a possible rebuttal and
9 rejoinder after the closing arguments.
10 The Chamber has reserved this afternoon and
11 tomorrow morning for this sitting, in view of the fact
12 that the parties have an extensive amount of work to
13 cover in their written briefs, and so the Trial Chamber
14 thought that this afternoon should be devoted to the
15 Prosecution and tomorrow morning to the Defence.
16 Nonetheless, we have two issues which I
17 should like to address to the parties before they
18 proceed with their closing arguments. The first
19 question is, have the parties any idea regarding the
20 envisaged time needed for the closing arguments? The
21 second question is whether the parties intend to have a
22 rebuttal or rejoinder or will they be content with the
23 closing arguments? Those are the two preliminary
24 questions that we should like to hear your responses
1 Before answering this question, I should like
2 the Prosecutor to speak first and then the Defence.
3 Mr. Niemann, you have the floor.
4 MR. NIEMANN: If Your Honours please. The
5 way that we, the Prosecution, had intended to approach
6 this matter was that I would address you on questions
7 of law, and my colleague, Mr. Meddegoda, would address
8 you on questions of facts. It was my intention to
9 speak for approximately an hour and three quarters,
10 allowing then the time for the break, if there was to
11 be a break. I understand that my colleague,
12 Mr. Meddegoda, will speak for approximately the same
13 time. We will try and dispose of it in the course of
14 this afternoon. I don't know whether Mr. Meddegoda
15 will completely finish in that time, but if he does
16 have to run over, he will, no doubt, at the time seek
17 Your Honours' indulgence and take the matter up at that
19 Your Honours, with respect to the question of
20 the rebuttal case, it's hard for me at this stage to
21 indicate whether or not we would be wanting to say
22 anything to you in rebuttal, because, of course, as
23 Your Honours appreciate, anything we say in rebuttal
24 will arise out of matters which will be addressed by my
25 colleague, Mr. Mikulicic, in his address.
1 I only envisage addressing Your Honours on
2 matters which are new or haven't, in fact, been covered
3 in any of the material that has been presented, either
4 in our written address or in the addresses that we are
5 about to deliver now. I would envisage, Your Honours,
6 trying to traverse matters that have already been
7 covered. We would leave it to Your Honours.
8 If my colleague, Mr. Mikulicic, comes back
9 with something contrary to what I've said -- I expect
10 that to happen -- I would leave it to Your Honours then
11 to determine which way to go on the matter. It's only
12 if Mr. Mikulicic is to raise something which I haven't
13 foreshadowed and it is of sufficient importance that I
14 would seek to address you in rebuttal on those
16 Other than that, Your Honours, we would
17 envisage taking up all of the time this afternoon at
18 least for us to deliver our submissions.
19 JUDGE RODRIGUES: Mr. Niemann, could you
20 also, at the same time, introduce the Prosecution team,
22 MR. NIEMANN: I'm sorry, Your Honours. I
23 should have said that. Good afternoon, Your Honours.
24 My name is Niemann. I appear with my colleagues,
25 Mr. Meddegoda, and Mr. Saxon is assisting us at the bar
1 table today in place of Ms. Erasmus who is not
2 available this afternoon, if Your Honours please.
3 JUDGE RODRIGUES: Mr. Mikulicic, it is up to
4 you to comment on the questions I have put to you.
5 MR. MIKULICIC: Good afternoon, Your
6 Honours. Good afternoon, my learned friends from the
7 Prosecution. My name is Goran Mikulicic, and together
8 with my friend, Mr. Joka, I am the Defence counsel for
9 Mr. Aleksovski.
10 In answer to your question, my reply would be
11 as follows: The Defence plans, within a period of
12 three hours, to complete its oral closing arguments.
13 The Defence has not prepared in advance for any kind of
14 rejoinder. However, should the need arise, and this
15 would stem from any allegations or statements made on
16 the Prosecution side, then naturally, the Defence will
18 Similarly, the Defence wishes to say that it
19 will not go back to certain issues that have been
20 covered in our written brief but that it will only
21 focus on certain points which it considers to be of the
22 greatest importance for judgement in this case.
23 JUDGE RODRIGUES: Thank you, Mr. Mikulicic.
24 Mr. Marc Dubuisson, could you call the case,
25 please, for the benefit of the transcript?
1 THE REGISTRAR: IT-95-14/1-T, the Prosecutor
2 versus Zlatko Aleksovski.
3 JUDGE RODRIGUES: Thank you, Mr. Marc
5 I think that we can begin with our work, and
6 we are going to organise ourselves as follows: We
7 shall assume that we began at 2.00, because, from the
8 standpoint of the interpreters, we did, indeed. We
9 will work for one hour, ten minutes, after which we
10 will have a 20-minute break, and then we will work
11 again for another one-hour-and-ten-minute session, a
12 20-minute break, and then a period of work again, so
13 that we know what the timetable is.
14 Having stated that, I give the floor to Mr.
15 Niemann to begin with his closing arguments.
16 Mr. Niemann, you have the floor.
17 MR. NIEMANN: If Your Honours please.
18 Your Honours, in this submission, I will try
19 not to repeat matters which are dealt with in our
20 written brief which we rely on fully as part of our
21 closing address.
22 I do want, Your Honours, to draw your
23 attention to what I submit is a new and evolving legal
24 issue relating to the grave breach provisions of the
25 Geneva Conventions and the questions of how we should
1 deal with the issue of international armed conflict.
2 Whereas in our closing brief, we have tended to take a
3 traditional approach to this question, in this
4 submission, I wish to examine what are perhaps more the
5 frontiers of the law and try to enjoin Your Honours to
6 participate in this important development. Before I do
7 that, allow me to dwell upon some of the other
8 significant issues concerning this case.
9 Firstly, the question of what occurred in the
10 Lasva Valley and what has often been referred to as
11 ethnic cleansing: Your Honours, now that we have heard
12 the evidence, it can be seen that the accused,
13 Mr. Aleksovski, along with others, participated in a
14 widespread scheme to ethnically cleanse the Lasva
15 Valley of the Muslim population.
16 The part of the operation that was occupied
17 by Mr. Aleksovski was at the receiving end of the
18 scheme, but this, in no way, detracts from the
19 importance of his participation. It was his job to
20 receive the Muslims in the Kaonik camp, to process
21 them, and there, where they were subjected to such
22 horrific conditions, that not only would they be
23 desperate to get out of the Kaonik prison itself, but
24 they would be so traumatised that they would want to
25 leave the Lasva Valley altogether.
1 Your Honours, it takes a determined effort to
2 force human beings to give up their homes and lifelong
3 possessions and go and live somewhere else, especially
4 if your objective is to achieve this on a permanent
5 basis. In some parts of the world, we see earthquakes,
6 floods, fires, and other such natural disasters which
7 strike with such ferocity and wreak so much damage that
8 it's hard to imagine why people continue to live there
9 afterwards. But such is the strength of their
10 affiliation to their homelands that they persevere,
11 notwithstanding these incredible events.
12 Consider then for a moment just how much
13 physical and psychological pain you would have to
14 inflict to achieve this by ethnic cleansing.
15 In 1993, this was the business of the accused
16 and his associates. It's most unlikely that you will
17 ever hear the Defence witnesses describe it as ethnic
18 cleansing, especially if the witnesses were or are in
19 positions of authority. This is something that, for
20 the most part, we have to infer from the evidence.
21 However, we do sometimes get glimpses of this plan,
22 even when defence witnesses attempt to disguise and
23 protect the interests of the authorities and
24 governments, in this case, the government of the
25 Republic of Croatia, and the government of the HVO. We
1 do see from Defence witnesses this glimpse of what was
2 occurring at that time. When we look at the evidence
3 of the Defence witness Tomislav Rajic, page 3.187, line
4 23 of the transcript, he said:
5 "However, in the spring of 1992, when the
6 first but fairly numerous ... Muslims ... began to
7 arrive, the refugees, there was a sort of demographic
8 imbalance, the demographic balance was upset which had
9 existed until that time ... This upset our cooperation
10 and the events that followed took place."
11 Later he was to describe the influx of Muslim
12 refugees that had interrupted the ethnic balance as
13 "drastic." That is at page 3.189 of the transcript.
14 Although this was consistent with their
15 somewhat bizarre and artificial theme to blame it all
16 on the Serbs, it brazenly admits to their programme of
17 ethnic readjustment based on discrimination. However,
18 the facts put a lie to their claim that it was the
19 ethnic imbalance which led to the events of 1993
20 because it wasn't the Muslim refugees from other areas
21 of Bosnia, who were displaced by the Serbs, who were
22 forced out of the Lasva Valley, it was the long-term
23 Muslim residents of the area.
24 Contrary to the Defence case which sought to
25 impress upon us the racial tolerance allegedly
1 possessed by the accused, we have the opposite version
2 given in the evidence, for example, of the ECMM
3 monitor, Mr. McLeod, where, in reference to the beating
4 of Muslims by HVO soldiers, he quotes the accused
5 Mr. Aleksovski as saying, "Would you shoot a man who
6 has lost his brother to stop him from abusing
7 Muslims?" See page 133 of the transcript.
8 Large criminal enterprises such as that which
9 occurred in the Lasva Valley in the first half of 1993
10 cannot be carried out by one person. It takes
11 governments and large organisations to commit these
12 crimes, governments whose acts are carried out by their
13 willing servants. The acts of individual servants may
14 only form a part of a much bigger and more sinister
15 criminal act. Sometimes the dimensions of government
16 crimes are so large-scale that the real content of the
17 criminal behaviour becomes obscured by bureaucratic
18 officialdom, but such officialdom should never be
19 permitted to obscure the reality of the crime itself.
20 The accused Aleksovski was one such willing
21 servant. Of course, he didn't have all the power, he
22 was not the most senior political or military figure in
23 the region, but nonetheless his acts were an integral
24 part of a larger crime.
25 What then is the crime with which we are
2 The Geneva Convention of 1949, picked up and
3 applied by the Statute of this Tribunal, does not make
4 the waging of a war a criminal offence. The concise
5 position is this: War or armed conflict is not
6 prohibited, but if engaged in, then it must be strictly
7 according to the Geneva Conventions. Otherwise, the
8 Conventions are breached and criminal liability will
10 In other words, it is not a defence to come
11 before this Tribunal and say, "Well, we engaged in war
12 or armed conflict, and we tried, where possible, to
13 comply with the Geneva Conventions, but times were
14 tough and so we could not do any better." This is not
15 even a mitigating factor when it comes to sentencing.
16 Under international law, if you must engage
17 in war or if you must participate in armed conflict,
18 then you must abide by the Geneva Conventions of 1949.
19 When dealing with a similar argument by the
20 Defence in the case of The Prosecutor v. Celebici in
21 their judgement of the Trial Chamber, IT-96-21-T at
22 paragraph 1.117, page 381, the Trial Chamber said as
24 "It is the position of the defence that, in
25 light of the overall situation in the Konjic
1 municipality at the time, no criminal liability can
2 attach to the accused, as the conditions prevailing in
3 the Celebici prison camp were the best that could be
4 provided. The Trial Chamber must, as a matter of law,
5 reject this view. As set out above, the legal
6 standards here at issue are absolute, not relative.
7 They delineate a minimum standard of treatment from
8 which no derogation can be permitted. Accordingly, it
9 is the Trial Chamber's view that a detaining power, or
10 those acting on its behalf, cannot plead a lack of
11 resources as a legal justification for exposing the
12 individuals to conditions of detention that are
14 The contention that the conditions endured by
15 the Kaonik detainees were no worse than those endured
16 by the free Croatian community, Bosnian Croatian
17 community, does not stand up to scrutiny in any event.
18 The reality was that the free Bosnian Croatian
19 community was not illegally arrested, they were not
20 illegally detained, they were not sent to the front
21 line to dig trenches when conditions were dangerous.
22 The Bosnian Croatian volunteers and conscripts only
23 worked at night when it was safer from the effects of
24 snipers. They were not under armed guard, they were
25 not forced to work hours on end without a break. For
1 the most part, they were given the best protection that
2 could be provided. For the Muslim Kaonik detainees,
3 the evidence demonstrates that the conditions for them
4 were quite the opposite.
5 The term "ethnic cleansing" may not as such
6 appear in the Geneva Conventions. It should not
7 therefore be thought that this whole abhorrent business
8 may somehow have slipped through the fingers of the
9 parcel of prohibited conducts as prescribed by the
10 Conventions. There is no question that the conduct
11 necessary to achieve ethnic cleansing is well and truly
12 prohibited by the Conventions.
13 For instance, Article 49 of the Civilian
14 Convention makes forcible transfer or deportations of
15 civilians illegal. The grave breach provisions,
16 Article 147, prohibits unlawful deportation, transfer,
17 or confinement of protected persons. Common Article 3
18 prohibits adverse distinction of persons based on race,
19 colour, religion, or other similar criteria.
20 Therefore, there is no question that the acts necessary
21 to effect ethnic cleansing are themselves prohibited,
22 and this, in turn, is properly reflected in the various
23 charges in the indictment.
24 Accordingly, if, in the course of ethnic
25 cleansing or in order to achieve ethnic cleansing, you
1 subject people to inhumane treatment, if you wilfully
2 cause great suffering or serious injury to body or
3 health, or if you inflict outrages upon the personal
4 dignity, then this conduct is directly prohibited by
5 the Conventions.
6 Accordingly, it was, in our submission,
7 manifestly illegal to round up the civilian Muslim
8 population of the Busovaca and Vitez municipalities and
9 then illegally intern them in the Kaonik prison solely
10 on the basis of their ethnicity.
11 When these people were illegally interned in
12 the Kaonik prison, it was manifestly illegal to beat
13 them; to deprive them of proper food, hygiene, and
14 medical treatment; to overcrowd them under inhumane
15 conditions; to deprive them of proper bedding and
16 warmth. It was manifestly illegal to send them to the
17 front in dangerous conditions, and there to force them
18 to dig trenches for the HVO. When at the front, it was
19 manifestly illegal to rob them and abuse them. It was
20 manifestly illegal to force them to work for hours on
21 end without adequate rest or nutrition.
22 Dealing now with the question of the illegal
23 confinement of civilians.
24 The question of the illegality of the
25 confinement of civilians can be a difficult matter if
1 the State can justify that they represented a serious
2 threat to the State, but the threat has to be real.
3 As noted again in the Celebici judgement,
4 paragraph 1.134, page 387, Their Honours said:
5 "... the Trial Chamber is convinced that a
6 significant number of the civilians were detained in
7 the Celebici camp although there existed no serious and
8 legitimate reason to conclude that they seriously
9 prejudiced the security of the detaining power. To the
10 contrary, it appears that the confinement of the
11 civilians in the Celebici camp was a collective measure
12 aimed at a specific group of persons based mainly on
13 their ethnic background and not as a legitimate
14 security measure."
15 As Your Honours remember, in that case, they
16 were Serb detainees.
17 "As stated above --"
18 I'm quoting on from the Trial Chamber's
20 " -- the mere fact that a person is a
21 national of or aligned with an enemy party cannot be
22 considered as threatening the security of the opposing
23 party where he is living and therefore be a valid
24 reason for interning him."
25 Your Honours, the evidence in this case bears
1 this out even more than what was the case in Celebici
2 because the fact is that in this case some people were
3 sent home from time to time. "Well, they're allowed to
4 go home with one of the guards," which all suggests
5 that they could not have in any way been a serious
6 threat to the HVO.
7 Turning now to the issue of human shields.
8 With respect to the use of detainees as human
9 shields, Article 28 of the Civilian Geneva Convention 4
10 of 1949 provides that the presence of protected persons
11 may not be used to render certain points or areas
12 immune from military operations.
13 Similarly, Article 23 of the Prisoners of War
14 Third Geneva Convention provides that the presence of
15 prisoners of war shall not be used to render certain
16 points or areas immune from military operations.
17 Both of these provisions need to be read in
18 conjunction with Article 50, paragraph 7, of the 1977
19 Additional Protocol 1, which provides that the presence
20 or movements of the civilian population or individuals
21 shall not be used to render certain points or areas
22 immune from military operations, in particular in
23 attempts to shield military objectives from attacks or
24 to shield, favour, or impede military operations. The
25 parties to the conflict shall not direct the movement
1 of civilian populations or individual civilians in
2 order to attempt to shield military objectives from
3 attacks or to shield military operations.
4 The net effect of these provisions is that
5 using people as human shields is illegal and contrary
6 to the Geneva Conventions and the Additional Protocols
7 of 1977. Therefore, the use of the Muslim prisoners at
8 the Kaonik prison camp as human shields in 1993 was
9 manifestly illegal.
10 Turning now to the question of international
11 armed conflict.
12 In the judgement of the Trial Chamber in The
13 Prosecution v. Zejnil Delalic, the Celebici case, of
14 the 16th of November, 1998, the Trial Chamber said,
15 paragraph 202, page 76:
16 "While Trial Chamber II in the Tadic case
17 did not initially consider the nature of the armed
18 conflict to be a relevant consideration in applying
19 Article 2 of the Statute, the majority of the Appeals
20 Chamber in the Tadic jurisdictional decision did find
21 that the grave breaches of the Geneva Conventions could
22 be only committed in international armed conflicts and
23 this requirement was thus an integral part of Article 2
24 of the Statute."
25 In his separate opinion, however, Judge
1 Abi-Saad opined that "a strong case can be made for the
2 application of Article 2 of the Statute even when the
3 incriminated acts take place in an internal conflict.
4 The Appeals Chamber did indeed recognise that a change
5 in the customary law scope of the 'grave breach
6 regimes' in this direction may be occurring. This
7 Trial Chamber is also of the view that the possibility
8 that customary law has developed the provisions of the
9 Geneva Conventions since 1949 to constitute an
10 extension of the system of 'grave breaches' to internal
11 armed conflicts should be recognised."
12 Your Honours, this advance in the law was
13 picked up and advanced even a little further very
14 recently in the jurisdictional decision of Trial
15 Chamber III in The Prosecutor v. Dario Kordic and
16 another, IT-95-14/2-PT of the 2nd of March, 1999, when
17 the Trial Chamber, paragraph 15, acknowledged with
18 approval the step taken in Celebici.
19 Perhaps more interestingly, at paragraph 31,
20 when considering the Additional Protocols of the Geneva
21 Conventions of 1977, including Protocol 1 which, as
22 Your Honours know, is the protocol dealing with
23 international armed conflicts, Trial Chamber III says
25 "There is no possible doubt as to the
1 customary status of these specific provisions as they
2 reflect core principles of humanitarian law that can be
3 considered as applying to all armed conflicts whether
4 intended to apply to international or non-international
6 Thus, in my respectful submission, Trial
7 Chamber III has taken the advance of unhesitatingly
8 expressing the customary status of the Additional
9 Protocols, including Protocol 1, with respect to their
10 application to conflicts irrespective of whether the
11 conflict is internal or international.
12 Accordingly, in my submission, it is only
13 logical that the grave breach provisions of the
14 Conventions in themselves, which are, in fact, older in
15 time, should also, without doubt, enjoy such customary
16 status. All it takes is for Your Honours to say so.
17 I will now endeavour to assist Your Honours
18 in giving you at least one path for you to consider in
19 reaching what I submit is the sensible and inevitable
21 At the outset, let me say that on the
22 evidence, the existence of an international armed
23 conflict at the relevant times and place has, we say,
24 been unquestionably proved beyond a reasonable doubt,
25 so that any advance that Your Honours might make in the
1 law can in no way affect the position of the accused.
2 When considering the grave breach provisions
3 of the Geneva Conventions, it is interesting to compare
4 these Conventions with the Convention on genocide.
5 Article 6 of the Genocide Convention of 1948
6 provides that:
7 "... persons charged with genocide ... shall
8 be tried ... by a ... State or international penal
9 tribunal ... which States have accepted its
11 Article 8 allows States to call upon the
12 United Nations to take appropriate action.
13 Clearly, the drafters of the Genocide
14 Convention contemplated that it would have a truly
15 international enforcement mechanism. International in
16 the sense that international bodies would play a direct
17 part in the Convention's enforcement. Thus,
18 international tribunals would play a part in the
19 prevention and suppression of acts of genocide.
20 This Genocide Convention stands in stark
21 contrast to the four Geneva Conventions of 1949 which
22 makes no reference to "International Tribunals." The
23 four Geneva Conventions contemplated international
24 enforcement, but enforcement would be undertaken by
25 States on behalf of the International Community. There
1 is no suggestion of this being done by international
2 tribunals, as is the case with the Genocide
3 Conventions. Accordingly, if the Statute of this
4 Tribunal did not expressly refer to the Geneva
5 Conventions of 1949 in Article 2, then the Tribunal
6 would only have jurisdiction with respect to the
7 Conventions if the Conventions, and more particularly
8 the "grave breach" provision, had become part of
9 international customary law. This being so, the Geneva
10 Conventions as drafted were expressly intended to be
11 enforced by States.
12 As the Appeals Chamber noted in the Tadic
13 jurisdictional appeal, page 46, paragraph 80:
14 "The international armed conflict element
15 generally attributed to the grave breach provisions of
16 the Geneva Conventions is merely a function of the
17 system of universal mandatory jurisdiction that those
18 provisions create. The international armed conflict
19 requirement was a necessary limitation on the grave
20 breaches system in light of the intrusion on State
21 sovereignty that such mandatory universal jurisdiction
22 represents. State parties to the 1949 Geneva
23 Conventions did not want to give other States
24 jurisdiction over serious violations of international
25 law committed in their internal conflicts, at least not
1 the mandatory universal jurisdiction involved in the
2 grave breach system."
3 However, this Tribunal is not concerned with
4 the issue of State sovereignty. Under Article 2,
5 paragraph 7 of the United Nations Charter, "the United
6 Nations shall not interfere with matters which are
7 essentially within the domestic jurisdiction of any
8 State." But measures under Chapter 7 are expressly
9 excluded from this general restriction. This Tribunal
10 was created by the Security Council as a Chapter 7
11 measure. Furthermore, the Statute of the Tribunal
12 expressly gives it jurisdiction by virtue of Article 8
13 of our Statute. Article 8, "Territorial Jurisdiction,"
14 is as broad as could be enjoyed by any State court in
15 the exercise of domestic jurisdiction.
16 The Statute goes even further and gives the
17 Tribunal jurisdiction much wider than that even enjoyed
18 by most State courts because Article 9, paragraph 2,
19 provides that the Tribunal, in the exercise of its
20 jurisdiction, shall have primacy over State courts, and
21 Article 10, paragraph 1, limits the jurisdiction of
22 State courts.
23 In light of these Articles, it is hard to
24 imagine a more intrusive jurisdictional limitation on
25 the sovereignty of a State. Indeed, it becomes absurd,
1 in my submission, to speak of the need to respect State
2 sovereignty by not applying the grave breach provisions
3 until and unless an international armed conflict is
4 established because of a concern not to intrude into
5 the sovereignty of another State, yet at the same time
6 expressly asserting primacy over the courts of that
7 very same State. It's interesting that even States
8 themselves are not quite so concerned about sovereignty
9 when the fate of innocent human beings is at stake.
10 Even the Geneva Conventions themselves relegates State
11 sovereignty to second place in cases of doubt.
12 For example, Article 5 of the Geneva
13 Convention 3 contemplates that a State court will
14 exercise jurisdiction and assume, in cases of doubt,
15 that the Conventions apply unless the contrary is
17 This is consistent with how most domestic
18 courts operate on jurisdictional matters. The
19 Prosecution rarely has to prove jurisdiction beyond a
20 reasonable doubt as an element of the offence. The
21 Prosecution brings the case, and the Defence can
22 challenge jurisdiction and endeavour to prove, on the
23 balance of probabilities, that the courts do not have
24 jurisdiction. This approach was clearly contemplated
25 by Rule 72(A)(i) of the Tribunal's own Rules which
1 contemplates challenges to the jurisdiction of the
2 Tribunal as being a preliminary issue.
3 THE INTERPRETER: Could we ask counsel to
4 slow down, please?
5 MR. NIEMANN: Further, when dealing with the
6 whole question of the decline of State sovereignty, I
7 could find no more eloquent expression than that
8 contained in the Tadic Jurisdictional Appeal Judgement
9 itself when the majority held, at page 54, paragraph
10 97, where Their Honours said: "... A State-sovereignty
11 approach has been gradually supplanted by a
12 human-being-oriented approach ... It follows that in
13 the area of armed conflict, the distinction between
14 interstate and civil wars is losing value as far as
15 human beings are concerned."
16 The Appeals Chamber then goes on to pose the
17 rhetorical question: "Why protect civilians from
18 belligerent violence or ban rape, et cetera ... when
19 two sovereign States are engaged in war, and yet
20 refrain from enacting the same bans ... when armed
21 violence has erupted only within the territory of the
22 sovereign State?"
23 The Appeals Chamber then answers: "If
24 international law, while of course duly safeguarding
25 the legitimate interests of States, must gradually turn
1 to the protection of human beings, it is only natural
2 that the aforementioned dichotomy should gradually lose
3 its weight."
4 At page 64, paragraph 119, the Appeals
5 Chamber declares as preposterous the notion that
6 weapons prohibited in international armed conflict may
7 not be prohibited in internal armed conflict.
8 The grave breach provisions are at the very
9 heart of the Geneva Conventions. Their application is
10 essential to the continued operations of these most
11 important Conventions.
12 When considering this matter, we should ask
13 ourselves the following questions: Is it appropriate
14 that everything should hang on the classification of
15 the conflict as being international? Should otherwise
16 clearly guilty war criminals escape conviction and
17 punishment because there exists politically motivated
18 arguments, often promulgated by the guilty warring
19 States themselves who are anxious to avoid the
20 imposition of war reparations or other consequences by
21 having the conflict internal rather than international
22 in character?
23 The issue of the classification of the
24 conflict has, in my submission, nothing to do with the
25 individual participants. It is a matter of concern
1 only to the State involved.
2 Do you think that the classification of the
3 conflict was a factor which weighed heavily on the mind
4 of an accused person when he or she was about to commit
5 a crime contrary to the grave breach provisions of the
6 Geneva Conventions? More importantly, do you think
7 that the victims of those crimes would feel that an
8 acquittal, based on the fact that the conflict was
9 arguably internal, would, in their mind, constitute
10 justice? Would such a technical, artificial,
11 irrelevant, and unsatisfactory conclusion generally
12 contribute to reconciliation and restoration of peace
13 in the former Yugoslavia?
14 In the Celebici decision again, the Trial
15 Chamber, in my submission, very correctly interpreted
16 the Geneva Conventions when it cited with approval the
17 commentary on the 4th Geneva Convention, paragraph
18 263: "The Commentary to the Fourth Geneva Convention
19 charges us not to forget that 'The Conventions have
20 been drawn up first and foremost to protect individuals
21 and not to serve State interests,' and thus it is the
22 view of the Trial Chamber that their protection should
23 be applied to as broad a category of persons as
25 If the classification of the conflict as an
1 international conflict had to be proved beyond a
2 reasonable doubt as an element of the offence and that
3 this was the unequivocal state of the law, then I guess
4 the answer to all these questions might have to be
5 "Yes," irrespective of the fact that they may be
6 artificial or irrespective of the fact that they may be
8 However, in my respectful submission, this is
9 not the case. It has not been expressly stated
10 anywhere that the classification of the conflict is an
11 element of the offence which has to be proved beyond a
12 reasonable doubt.
13 Why do I say this? As I've stated above, the
14 1949 Geneva Conventions had not envisaged that the
15 grave breach provisions of the Geneva Conventions would
16 be enforced by an International Tribunal, such as this
17 Tribunal. Accordingly, the whole focus of their
18 attention was on the Conventions being enforced by
19 State courts. State courts are justifiably concerned
20 with exercising jurisdiction over events that occurred
21 in the territory of another State.
22 An instance, for example, is the caution
23 taken by the High Court in Britain recently over the
24 arrest of General Pinochet. One of the primary issues
25 at the heart of the matter was should a British court
1 try a person in Britain for crimes committed in Chile.
2 This reluctance is not limited to British courts but
3 operates throughout the world.
4 When the drafters of the Geneva Conventions
5 introduced the idea that State courts would enforce the
6 grave breach provisions, they had to address the issue
7 of enforcement by State courts, other than the State
8 where the crimes were committed because they were
9 acutely aware of the reluctance of State courts to
10 interfere with another State court's jurisdiction.
11 In an effort to assuage this concern by State
12 courts, they introduced a number of measures to
13 encourage State courts to accept jurisdiction. The
14 primary issue was whether or not the conflict was
15 international or internal. If it was international,
16 the drafters figured that the problem would be solved
17 because the objection to State courts intruding on the
18 exclusive jurisdiction of another State court
19 disappeared, that is, if it is international, it is not
20 the exclusive jurisdiction of one State, so that
21 another State could exercise jurisdiction.
22 What then has this got to do with the
23 Tribunal? In my submission, absolutely nothing. The
24 very important question we should ask ourselves is
25 this: Is it appropriate for reasons of comity for this
1 Tribunal to be hesitant about exercising jurisdiction
2 over persons responsible for serious violations of
3 international humanitarian law, which include grave
4 breaches committed in the territory of the former
5 Yugoslavia since 1991? I sincerely hope not. It is
6 the whole purpose of our being. It is the mandate laid
7 down for us by the Security Council. Indeed, it's the
8 very thing that is expected of us.
9 As observed by the Trial Chamber in the
10 Celebici judgement, paragraph 263, Their Honours said:
11 "It would be contrary to the intention of the Security
12 Council, which was concerned with effectively
13 addressing the situation that it had determined to be a
14 threat to international peace and security, and with
15 ending the suffering of all those caught up in the
16 conflict, for the International Tribunal to deny the
17 application of the Fourth Geneva Convention to any
18 particular group of persons solely on the basis of
19 their citizenship status under domestic law."
20 The fact that the drafters of the Tribunal
21 Statute gave the Tribunal territorial and temporal
22 jurisdiction under Article 8 and primacy over State
23 courts in Article 9(2) leads, in my submission, to the
24 inescapable conclusion that the Security Council
25 intended the Tribunal to get on with its mandate and
1 not concern itself with the kind of sovereignty issues
2 that inhibit State courts from exercising jurisdiction
3 under similar circumstances.
4 Clearly, in my submission, that is why
5 Article 2 of the Tribunal Statute, which incorporates
6 the grave breach provisions as part of the offence
7 provisions of the Statute, makes no mention of
8 international armed conflict. Thus to maintain the
9 view that an international armed conflict must be
10 proved beyond a reasonable doubt as an element of the
11 offence before the Tribunal can exercise jurisdiction
12 is, in my submission, wrong at law.
13 In our submission, it is also quite
14 erroneous, as a matter of law, for the Defence to
15 assert that the international armed conflict has to
16 reach down to the very place where the crime was
18 In our submission, the Prosecution has no
19 legal obligation to prove that the Republic of Croatia
20 or the HV were, in any way, directly involved in the
21 running of the Kaonik prison facility, or that the
22 prisoners were gathered up by the HV, or that somehow
23 Mr. Aleksovski was employed by the HV, or even that the
24 HVO ran the Kaonik facility as agents for the Republic
25 of Croatia or the HV.
1 When dealing with the parameters of the
2 conflict, again the Celebici Trial Chamber expressed
3 the following opinion, page 79, paragraph 209; they
4 said: "Before proceeding any further, the Trial
5 Chamber deems it necessary to address the possibility
6 that there may be some confusion as to the parameters
7 of this concept of an international armed conflict. We
8 are not here examining the Konjic municipality and the
9 particular forces involved in the conflict in that area
10 to determine whether it was international or internal.
11 Rather, should the conflict in Bosnia-Herzegovina be
12 international, the relevant norms of international
13 humanitarian law apply throughout its territory until
14 the general cessation of hostilities, unless it can be
15 shown that the conflict in some areas were separate
16 internal conflicts unrelated to the larger
17 international armed conflict."
18 JUDGE RODRIGUES: Mr. Niemann, excuse me for
19 interrupting you, but I see on the English transcript,
20 there is a reference to "Kaonik municipality," and I
21 heard "Konjic municipality."
22 MR. NIEMANN: It should be "Konjic."
23 JUDGE RODRIGUES: I don't know if that's a
25 MR. NIEMANN: I'm quoting from Their Honours'
1 decision, and it's "Konjic."
2 JUDGE RODRIGUES: Very well. You may
3 continue. Thank you.
4 MR. NIEMANN: Thank you.
5 The Trial Chamber in Celebici continue, at
6 page 80, paragraph 212, to say: "The JNA had been
7 providing arms and equipment to the Serb population in
8 Bosnia-Herzegovina since 1991, who had in turn been
9 organising themselves into various units and militia in
10 preparation for combat. Similarly, the Bosnian Croats
11 had been receiving such support from the Government of
12 Croatia and its armed forces."
13 Again, in paragraph 213, they say: "The
14 United Nations Security Council and the European
15 Community recognised this involvement of these and
16 other outside forces in the conflict by calling for the
17 Governments of Croatia and Serbs to exert 'their
18 undoubted influence' in demanding the cessation of all
19 forms of outside interference."
20 In paragraph 214 and 215, they conclude: "On
21 the basis of this evidence alone, the Trial Chamber can
22 conclude that an international armed conflict existed
23 in Bosnia-Herzegovina at the date of its recognition as
24 an independent State on 6 April, 1992. There is no
25 evidence to indicate the hostilities which occurred in
1 the Konjic municipality at that time were part of a
2 separate armed conflict, and indeed there is some
3 evidence of the involvement of the JNA in the fighting
4 there. It is evident that there was no general
5 cessation of hostilities in Bosnia-Herzegovina until
6 the signing of the Dayton Peace Agreement in November
8 Likewise, in my submission, there is no
9 evidence to indicate that the hostilities which
10 occurred in the Busovaca and Vitez municipalities were
11 part of a separate armed conflict, and, indeed, there
12 is some evidence of the involvement of the HV in the
13 fighting there.
14 We have evidence of the rounding up of the
15 Muslim civilians by members of the HV, and we certainly
16 have evidence of a connection between the two armies of
17 the HVO and the HV. Professor Bianchini expressed the
18 opinion that, for all intents and purposes, they were
19 the same army.
20 Again, in the Celebici judgement, the Trial
21 Chamber made a number of interesting findings about the
22 nature of the participants to the conflict. In
23 paragraph 187, page 72, they refer to the JNA which
24 became the VJ and the VRS which was controlled by the
25 Bosnian Serb administration in Pale. They then go on
1 to say: "The HVO was in a similar position to the VRS,
2 in that it was established by the self-proclaimed
3 para-state of the Bosnian Croats as its army and
4 operated from territory under its control."
5 Moreover, the Trial Chamber, in reaching its
6 conclusion that an international armed conflict did
7 exist on the territory of Bosnia-Herzegovina at the
8 relevant time in the Celebici judgement, declined to
9 follow the decision of the majority in the Tadic case,
10 considered that the Nicaragua case was not appropriate
11 as a source of authority, having regard to the nature
12 of the proceedings, and fully accepted the dissenting
13 judgement of Judge McDonald, as she then was, on this
14 issue of the involvement of the JNA in
16 This is not the first time that such a
17 decision has been made. In the Rajic Rule 61 hearing,
18 IT-95-12-R61, at page 9, paragraph 13, the Trial
19 Chamber said: "The Chamber finds that for the purposes
20 of the application of the grave breach provisions of
21 the Geneva Convention 4, the significant and continuous
22 military action by the armed forces of Croatia in
23 support of the Bosnian Croats against the forces of the
24 Bosnian government on the territory of the latter was
25 sufficient to convert the domestic conflict between the
1 Bosnian Croats and the Bosnian Government into an
2 international one."
3 Nor is there any basis to the suggestion by
4 the Defence, through the evidence of Admiral Domazet
5 and others, that the presence of the forces of the
6 Republic of Croatia were merely there because it had to
7 protect border regions of Croatia on the Dalmacija
8 coast and the Krajina. Again in the Rajic Rule 61
9 hearing, this ruse mounted by the Republic of Croatia
10 did not fool the Trial Chamber because, at page 12,
11 paragraph 19, it held: "The material before the Trial
12 Chamber also suggests that, contrary to Croatia's
13 claims, Croatian troops were not just stationed in
14 border areas and that they were involved in hostilities
15 against the Bosnian --" I'm sorry "and that they were
16 involved in hostilities against the Bosnian Government
17 forces in central and southern Bosnia."
18 Article 2 of the Statute of the Tribunal
19 does, however, make reference to the protected person
20 provisions of the Geneva Conventions. In an
21 examination of these provisions, it does not show
22 international armed conflict as part of the definition
23 of protected persons and property. Further, no
24 analysis of the meaning of "protected persons" would be
25 complete without looking at the definition of
1 "protected persons and property" as contained in the
2 Protocol Additional to the Geneva Convention of 1949.
3 Paragraph 4 of Article 1 of Protocol 1
4 extends the ambit of conflict to persons involved in
5 struggles for self-determination against colonial
6 domination, alien occupation, or racist regimes. All
7 or any of these could be in the context of an internal
8 armed conflict, thus supporting the argument that the
9 definition of "protected persons" is not entirely
10 limited to persons involved in international armed
12 Interestingly enough, Additional Protocol 1,
13 Paragraph 3 of Article 1, expressly provides that the
14 Protocol supplement the Geneva Conventions of 1949.
15 Clearly, Article 1(4) of Protocol 1 severs the 1949
16 Article 2 definition from what was then strictly
17 "international armed conflicts."
18 Likewise, the definition of "Prisoner of War"
19 has been expanded by Protocol 1. Article 43 of the
20 Additional Protocol expands the party to the conflict
21 to the armed forces of a party which may not be
22 recognised by the other party to the conflict. Article
23 44 of the 1977 Protocols provides that any combatant
24 covered by the expanded definition in Article 43 who
25 falls into the hands of an adverse party shall be a
1 prisoner of war.
2 If there was ever any doubt that the
3 prisoners of war interned at the Kaonik prison came
4 within the definition of prisoner of war by virtue of
5 the 1949 Geneva Conventions, then that doubt has been
6 completely resolved by the prisoner of war definitions
7 as contained in the 1977 Additional Protocols.
8 Similarly, what is meant by the term
9 "protected persons" in Article 4 of the Geneva
10 Conventions of 1949 dealing with civilians would not be
11 complete without looking to Article 50 and 51 of
12 Additional Protocol 1 of 1977. Article 50 provides
13 that a civilian is any person who is not defined as a
14 prisoner of war by either the Third Geneva Conventions
15 of 1949 or by the Additional Protocol. Article 50
16 makes no distinction whatsoever based on nationality or
18 Accordingly, in my submission, there is no
19 basis for defining nationality as it appears in Article
20 4 of the Fourth Convention as something intrinsically
21 linked to only a conflict of an international
22 character. Clearly it must mean something more than
23 that. In my submission, the only logical conclusion is
24 that it means "civilian" as defined in Article 50 of
25 Additional Protocol 1.
1 Accordingly, there is no question that the
2 Muslims of Busovaca and Vitez, who were non-combatants,
3 a sizeable proportion of whom found themselves
4 imprisoned in Kaonik, were civilians within the meaning
5 of Article 50 of Protocol 1 and were thus protected
6 persons under the Fourth Geneva Conventions.
7 Is that a convenient time, Your Honour? Does
8 Your Honour want me to continue on? I'm mindful of the
9 time. I think you said one hour and ten minutes.
10 JUDGE RODRIGUES: Yes. We could stop there
11 to give you a chance for a rest. As well, the
12 interpreters can rest too. We will have a break and we
13 will resume work at 3.30.
14 --- Recess taken at 3.10 p.m.
15 --- On resuming at 3.30 p.m.
16 (The accused entered court)
17 JUDGE RODRIGUES: Mr. Niemann, let us
18 continue. We are listening to you.
19 MR. NIEMANN: I was dealing with the
20 definition of "civilians" under Geneva Conventions, if
21 Your Honours please.
22 In dealing with this question of what
23 constitutes a civilian under the Fourth Geneva
24 Conventions, in the Celebici judgement, paragraph 245,
25 page 92, the Trial Chamber begin with an examination of
1 the reasoning of the Tadic judgement which, as I stated
2 above, they declined to follow. They interpreted the
3 Tadic judgement in the following way: They say that the
4 connection between the individuals being in the hands
5 of a party of a foreign nationality and the
6 classification of the conflict is a key factor in the
7 reasoning in Tadic because if the individuals were in
8 the hands of captors of the same nationality, the
9 conflict could not be international.
10 They observed, however, at paragraph 251,
11 that an analysis of the nationality laws of
12 Bosnia-Herzegovina does not reveal a clear picture. At
13 the time, the State was struggling to achieve its
14 independence. In addition, an "international armed
15 conflict was tearing Bosnia-Herzegovina apart, and the
16 very issue which was being fought over concerned the
17 desire of certain ethnic groups within its population
18 to separate themselves from that State and join with
19 another State."
20 After concluding that the Bosnian Serbs in
21 the hands of Bosnia-Herzegovina were protected persons
22 for the purposes of the Fourth Geneva Convention, the
23 Trial Chamber said at paragraph 265:
24 " ... it is clear that the victims of the
25 acts alleged in the indictment were arrested and
1 detained mainly on the basis of their Serb identity.
2 As such and insofar as they were not protected by any
3 of the Geneva Conventions, they must be considered to
4 have been 'protected persons' within the meaning of the
5 Fourth Geneva Convention as they were regarded by the
6 Bosnian authorities as belonging to the opposing party
7 in an armed conflict and as posing a threat to the
8 Bosnian State."
9 This interpretation of the Convention is
10 fully in accordance with the development of the human
11 rights doctrine which has been increasing in force
12 since the middle of this century. It would be
13 incongruous that the whole concept of human rights,
14 which protects individuals from the excesses of their
15 own governments, to rigidly apply the nationality
16 requirement of Article 4 that was apparently inserted
17 to prevent interference in a State's relations with its
18 own nationals.
19 They then quote with approval from Professor
20 Meron when they say".
21 " ... in interpreting international law, our
22 goal should be to avoid paralysing the legal process as
23 much as possible and, in the case of humanitarian
24 conventions, to enable them to serve their protective
1 After finding that the Bosnian Serb detainees
2 at the Celebici camp were protected persons, at
3 paragraph 275 the Trial Chamber then goes on:
4 "This finding is strengthened by the Trial
5 Chamber's fundamental conviction that the Security
6 Council, in persistently condemning the widespread
7 violations of international humanitarian law committed
8 throughout the conflict in Bosnia-Herzegovina and
9 indeed in establishing this International Tribunal to
10 prosecute and punish such violations, did not consider
11 that the protection of the whole corpus of
12 international humanitarian law could be denied to
13 particular groups of individuals on the basis of the
14 provisions of domestic citizenship legislation. The
15 International Tribunal must therefore take a broad and
16 principled approach to the application of the basic
17 norms of international humanitarian law, norms which
18 are enunciated in the four Geneva Conventions. In
19 particular, all those individuals who took no active
20 part in hostilities and yet found themselves engulfed
21 in the horror and violence of war should not be denied
22 the protection of the Fourth Geneva Convention which
23 constitutes the very basis of the law concerned with
24 such persons."
25 How then do we interpret what the Appeals
1 Chamber meant when it said in the Tadic jurisdictional
2 appeal at page 46, paragraph 81, that the reference to
3 "protected persons and property," as set out in the
4 various "protected persons and property" Articles of
5 the Conventions, determines that these persons are only
6 protected if they are perforce of those provisions
7 caught in an international armed conflict," and that
8 "... Article 2 of the (Tribunal) Statute only applies
9 to offences committed within the context of an
10 international armed conflict"?
11 Not everything that occurs in the course of a
12 criminal trial has to be proved beyond a reasonable
13 doubt. The only matters that do have to be proved by
14 the Prosecution beyond a reasonable doubt are those
15 matters which constitute the elements of the offence.
16 Accordingly, if the Prosecution fails to satisfy the
17 Tribunal of a fact beyond a reasonable doubt as to an
18 essential element of the offence, then the accused is
19 entitled to an acquittal.
20 At no stage did the Appeals Chamber in the
21 Tadic jurisdictional appeal say that the finding of an
22 international armed conflict was an essential element
23 of the offence that must be proved beyond a reasonable
24 doubt by the Prosecution.
25 In the course of almost all criminal trials
1 there arises issues of law which have to be decided
2 upon as questions of fact. One example is an objection
3 raised by the Defence to the admission of a piece of
4 evidence on the grounds of its relevance. The decision
5 of whether or not the evidence is relevant is a legal
6 question. The basis of that legal question is grounded
7 in fact. Accordingly, the Court hears argument and
8 looks to other evidence and to the details of the
9 particular piece of disputed evidence itself, and upon
10 looking at all these bits and pieces of evidence, a
11 legal determination is made as to whether the evidence
12 is relevant or not. The facts adduced in support of
13 the argument that a particular piece of evidence is
14 relevant do not have to go so far as to be proved
15 beyond a reasonable doubt.
16 In the Celebici judgement, paragraph 602, page
17 214, referred in passing to this issue of the burden
18 and standard of proof in certain circumstances. Their
19 Honours say:
20 "The burden is different when the accused
21 makes the allegation ..."
22 And then the important part which I wish to
24 " ... or when the allegation made by the
25 Prosecutor is not an essential element of the charges
1 in the indictment."
2 Their Honours say:
3 "In such a situation, the legal burden in a
4 civil case will satisfy the standard required ..."
5 This standard is, of course, the balance of
6 probabilities or the preponderance of the evidence.
7 Other examples of this would include various
8 of the allegations as contained in the indictment.
9 With respect to some of these particular allegations,
10 the Prosecution would seek to prove them on a balance
11 of probabilities but would not have to satisfy you
12 beyond a reasonable doubt.
13 By way of illustration, paragraph 7 of the
14 indictment sets out particulars of the accused. It
15 says that his parents are Tale and Eva. For
16 identification purposes of the accused, it may very
17 well be useful for the Prosecution to prove that his
18 parents were, in fact, Tale and Eva. But if this was
19 not proved beyond a reasonable doubt, the accused would
20 not, on this basis, be entitled to an acquittal.
21 There is no question that the way the Geneva
22 Conventions were drafted it was intended that the grave
23 breach provisions would operate in the context of an
24 international armed conflict, and I explain that the
25 reason for this was so that State courts could exercise
1 universal jurisdiction. Further, the "protected
2 persons" would be persons who found themselves caught
3 up in an international armed conflict. I do not
4 dispute this and I could not dispute it having regard
5 to the wording and construction of the Conventions.
6 However, in this case, the Prosecution
7 asserts that the existence of an international armed
8 conflict in Bosnia in 1993 is more in the nature of a
9 background jurisdictional component of the charge which
10 is a legal question and does not have to be proved
11 beyond a reasonable doubt in order for the accused to
12 be convicted.
13 Having regard to the fact that the
14 international armed conflict requirement is only an
15 issue for States exercising extra-territorial
16 jurisdiction and in no way impedes the jurisdiction of
17 an international tribunal and having regard to the fact
18 that Article 2 of the Statute of the Tribunal makes no
19 reference to "international armed conflict," then it is
20 my submission that proving the existence of an
21 international armed conflict cannot be an essential
22 ingredient of the charge. Whether or not it becomes an
23 essential prerequisite for a State court exercising
24 jurisdiction is fortunately not a matter that we have
25 to be concerned with in this jurisdiction.
1 Accordingly, because proof of the existence
2 of an international armed conflict is not, in our
3 submission, an essential element of the offence that
4 has to be proved by the Prosecution beyond a reasonable
5 doubt, a failure to so prove would not entitle the
6 accused to an acquittal.
7 The existence of an international armed
8 conflict goes to the background legal question of
9 jurisdiction. The facts that the Tribunal must
10 consider in order to reach this determination do not
11 have to reach the level where the matter is decided
12 according to the criminal standard. The Tribunal can
13 take into account a number of facts, not necessarily
14 only those introduced by the Prosecution. It is
15 permissible for the Judges of the Trial Chamber to draw
16 upon their general knowledge and general life
17 experiences. This is why, in my submission, the
18 Appeals Chamber in Tadic is very careful in its
19 selection of words on this point. The Appeals Chamber
20 does not say "elements of the offence" when they are
21 speaking of international armed conflict, they say, at
22 paragraph 84, page 48:
23 " ... Article 2 of the Statute only applies
24 to offences committed within the context of an
25 international armed conflict."
1 And the emphasis, if Your Honours please,
2 that I place is on the word "context."
3 Thus, when looking at this particular
4 conflict, what evidence is sufficient for you to
5 resolve whether or not the conflict was international
6 as a background jurisdictional question? The answer to
7 the question is straightforward. The conflict becomes
8 international in character if any difference arising
9 between two States and leading to the intervention of
10 members of the armed forces of that State is an
11 international armed conflict, and it makes no
12 difference how long the conflict lasts or how much
13 slaughter takes place. They do not have to have a
14 controlling influence or that they were present right
15 across the territory of the particular State.
16 Once this is established, in my submission,
17 on the balance of probabilities, Article 2 of the
18 Statute applies. You can then turn to the elements of
19 the offence in order for you to determine whether it
20 has been established beyond a reasonable doubt that the
21 accused intended to subject the Bosnian Muslim
22 detainees to inhumane treatment or to wilfully cause
23 great suffering or serious injury to body or health
24 under either Article 7(1) or 7(3).
25 Your Honours, in this case, there is an
1 abundance of evidence showing that the Republic of
2 Croatia had military forces in Bosnia. They came in
3 1992 and they stayed on beyond 1993. There is no
4 question that the military forces of Croatia were
5 linked to the HVO which was the organisation of the
6 Bosnian Croats. There is no question that the HVO was
7 in conflict with the army of Bosnia-Herzegovina in
9 This is as far as you need to go in order to
10 decide the background jurisdictional fact with respect
11 to the grave breach provisions. Of course, you have
12 before you a great deal more evidence than that, but
13 this is all you need.
14 Certainly you have a vastly greater amount of
15 evidence before you than did the Appeals Chamber in the
16 Tadic jurisdictional appeal when they, in fact, decided
17 that the conflict in the former Yugoslavia had been
18 rendered international by the involvement of the
19 Croatian army in Bosnia-Herzegovina. This is at page
20 39, paragraph 72. Likewise, you have considerably more
21 evidence before you than did the Trial Chamber in the
22 Rajic Rule 61 hearing when the Trial Chamber said that
23 the evidence was sufficient to convert a domestic
24 conflict into an international one (paragraph 13, page
1 The same question was decided by the Celebici
2 Trial Chamber when it said that there was an
3 international armed conflict in Bosnia-Herzegovina from
4 the date of its recognition of independence on the 6th
5 of April, 1992, until the signing of the Dayton peace
6 agreement in November of 1994 (sic).
7 Accordingly, when Your Honours come to
8 consider this question, it will have been considered
9 and decided at least four times. Of course, there is
10 nothing different this time, and in view of the fact
11 that on the previous four occasions it was decided that
12 there did exist an international armed conflict, there
13 is no reason why Your Honours need depart from this
14 consistently held view.
15 If Your Honours follow the line of reasoning
16 in the other cases and having regard to what I have
17 said above, I do not think that you will have much
18 difficulty in concluding that an international armed
19 conflict did exist in the territory of
20 Bosnia-Herzegovina at the relevant time.
21 Your Honours could, however, go further by
22 applying the same reasoning that I have advanced above,
23 about this being an issue for State courts and it not
24 being expressly mentioned in Article 2 of the Statute
25 of the Tribunal, and decide that Article 2 of the
1 Statute of the Tribunal applies equally to internal and
2 international armed conflicts.
3 In the Celebici judgement, the Trial Chamber
4 considered the possibility of expressing themselves on
5 this issue but ultimately declined to do so at page 88,
6 paragraph 235, of their judgement, when they say:
7 "Having reached this conclusion, the Trial
8 Chamber makes no finding on the question of whether
9 Article 2 of the Statute can only be applied in a
10 situation of an international armed conflict or whether
11 this provision is also applicable to internal armed
13 I think, Your Honours -- I've been
14 corrected. The Dayton Accords were signed in 1995. If
15 I said 1994, I was wrong in that.
16 Turning, Your Honours, to the issue of
17 command responsibility.
18 Again, in the Celebici judgement, the Trial
19 Chamber stated, paragraph 346, page 128, that the
20 elements that have to be satisfied in order to
21 establish Article 7(3) responsibility were:
22 (i) The existence of a superior-subordinate
24 (ii) that the superior knew or had reason to
25 know that the criminal act was about to be or had been
1 committed; and
2 (iii) the superior failed to take the
3 necessary and reasonable measures to prevent the
4 criminal act or to punish the perpetrators thereof.
5 In Celebici, they went on to observe the
6 situation in the former Yugoslavia, where formal
7 structures had broken down, improvised control and
8 command structures took their place. These improvised
9 structures were often ambiguous and ill-defined, but
10 this factor alone did not preclude the application of
11 the doctrine of superior responsibility under Article
12 7(3). Provided it could be established that persons
13 were effectively in control of these improvised
14 structures with the power to prevent and punish the
15 crimes of persons who are, in fact, under their
16 control, may be held responsible for their failure to
17 do so.
18 Accordingly, individuals, whether in civilian
19 or military structures, can incur criminal liability
20 under the doctrine of superior responsibility on the
21 basis of their de facto as well as their de jure
22 positions as superiors. The mere absence of formal
23 legal authority to control the actions of subordinates
24 will not preclude criminal responsibility.
25 Thus, it is apparent that there is no express
1 limitation restricting the scope of superior
2 responsibility to military commanders or situations
3 arising under military command. In contrast, the use
4 of the term "superior" in Article 7(3), juxtaposition
5 to the affirmation of individual criminal
6 responsibility of "Heads of State" or responsible
7 government in Article 7(2), clearly indicates that this
8 applicability extends beyond the responsibility of
9 military commanders to also encompass political leaders
10 and other civilian superiors in positions of authority.
11 In the case of the United States versus
12 Oswald Pohl, reported at Volume V, T.W.C. 958, the
13 finding of guilt against the accused, who was an
14 officer of the Waffen SS and a business manager of a
15 large establishment of industries employing
16 concentration camp labour, is best read as predicated
17 upon his possession of de facto powers of control.
18 Charged with his responsibility for the
19 conditions to which labourers were exposed, he based
20 his defence in part on the contention that any
21 mistreatment of prisoners was caused by the
22 concentration camp guards over whom he had no control.
23 This was rejected by the Nuremberg Tribunal when it
24 found that he was an integral part of the whole
25 concentration camp process. If excesses occurred in
1 industries under his control, he not only knew about it
2 but he could do something. Accordingly, powers of
3 influence, not amounting to formal powers of command,
4 is sufficient basis for the imposition of command
6 Cases imposing criminal responsibility for
7 failure to act on civilian positions of authority also
8 indicate that such persons may be liable for crimes
9 committed by persons over whom their formal authority
10 under national law is limited or nonexistent.
11 Whatever the Defence might say about the
12 de jure authority of Mr. Aleksovski, we have evidence
13 that "shift commanders could not make instructions on
14 their own. They had to receive instructions from the
15 warden"; transcript page 3.034. We also have an
16 abundance of Mr. Aleksovski giving orders to guards.
17 He even gave orders to the guards to beat prisoners;
18 transcript page 1.389.
19 It is nonsense, in my submission, to suggest
20 that he did not have control over the guards of the
21 camp. He was the warden, he had the responsibility to
22 run the place, and the only way that he could have done
23 this was by his control over the camp personnel,
24 including the guards.
25 If a person is a superior and has authority
1 to influence an event, he cannot plead lack of formal
2 or de jure authority as a defence when he failed to
3 take this action. Thus, if the superior is superior in
4 his position to those who perpetrate the acts, if he
5 has the requisite knowledge of the occurrence of those
6 events and fails to do what was within his powers to
7 either prevent further crimes or punish the
8 perpetrators thereof, then in those circumstances he is
9 guilty under the principle of command responsibility.
10 It is of no avail for him to say, "Well, I
11 was the warden of the prison --"
12 JUDGE RODRIGUES: Excuse me, Mr. Niemann, for
13 interrupting you, but I note that the French
14 translation has a lag of at least twenty lines, and if
15 one compares what I see in the transcript and what I
16 hear in my headphones, there is a delay on the part of
17 the French interpreters of some twenty lines.
18 Perhaps you need a little rest? I don't
19 know. Or, perhaps, could you slow down a little,
20 please? That is why I made signs a moment ago, "If you
21 could slow down?"
22 MR. NIEMANN: Yes, Your Honour. It's just
23 that I'm being very mindful of the ...
24 JUDGE RODRIGUES: I don't know, but I think
25 we should wait a little for the French interpreters to
1 catch up the delay or to have a simultaneous
2 interpretation. Is it all right with you? Could you
3 stop for a moment, Mr. Niemann? Then the French
4 translation will catch up with the English text, and
5 then we can resume work.
6 (French translation continues)
7 JUDGE RODRIGUES: Yes, the French booth has
8 caught up with the English booth, so we can continue
9 now, but we must know that the French booth is going a
10 little more slowly. What about the English booth or,
11 rather, the B/C/S booth?
12 THE INTERPRETER: We would ask counsel to
13 slow down, please, for the benefit of all the booths.
14 JUDGE RODRIGUES: I apologise for this
15 technical problem. I have no doubt about the
16 competence of the interpreters. I want to make that
17 quite clear.
18 So you may continue, Mr. Niemann, please.
19 MR. NIEMANN: If Your Honours please, it is
20 of no avail for the accused to say, "Well, I was the
21 warden of the prison. I knew that the detainees were
22 being mistreated contrary to the provisions of the
23 Geneva Conventions, but those guards were not under my
24 command because I was attached to the Justice
25 Department and the guards were attached to the Defence
1 Department." The fact is that he could act if he
2 wanted to. For example, when the two Muslim detainees
3 Ermin Elezovic and Jasmin Sehovic were taken out for
4 trench-digging, mistreated and ultimately murdered, he
5 did not claim lack of authority; he took appropriate
6 action by initiating a formal investigation,
7 demonstrating that he was far from powerless.
8 The Defence would have you believe that
9 unless you had complete de jure authority over the
10 destiny of his subordinates, then Article 7(3) of the
11 Statute has no application. This is simply not true.
12 Nor is it true to say that Article 7(3) only applies to
13 situations where he can take direct punitive action.
14 There are a great many things he could have done. He
15 could have gave the guards an order not to beat the
16 detainees rather than doing the opposite and ordering
17 them to beat the prisoners. He could have avoided
18 giving the guards a bad example when he himself joined
19 in when prisoners were beaten. He could have reported
20 the guards for beating the prisoners. He could have
21 told the ECMM Monitors what was happening. He could
22 have told the International Committee of the Red Cross
23 about the plight of the Muslim detainees instead of
24 lying to them, when they asked who was in the locked
25 cell, and he covered up by saying that the cell
1 contained stored food when, in fact, it contained a
2 prisoner who had been badly beaten; transcript page
3 1.472. He could have told the medical staff at the
4 Busovaca medical centre who, it appears, on some
5 occasions tried to help some of the prisoners by
6 prescribing home treatment. He could have walked
7 away. He had so many opportunities at his disposal,
8 yet he did nothing.
9 Why might that be? In our submission, it is
10 clear. He was a full-fledged supporter of the Bosnian
11 Croatian national cause. He had signed on to a project
12 to ethnically cleanse the Lasva Valley, and he was
13 performing his part of the project.
14 Aleksovski had direct knowledge of what was
15 going on. He was there present when Muslim detainees
16 were taken trench digging. He was there when they were
17 so exhausted from trench digging they collapsed from
18 exhaustion. He was there when they were taken as human
19 shields. He was there when they were beaten. He was
20 there when they were so badly beaten that they needed
21 medical attention. He was there when they had to sleep
22 on wooden pallets. He was there when they were
23 overcrowded into the cells. He was there when it was
24 cold and they did not have sufficient blankets to keep
25 them warm. He was there when they were ill and did not
1 receive adequate medical attention.
2 He had direct knowledge of all of these
3 matters. We are not here trying to argue constructive
4 knowledge. We don't have to. We have ample evidence
5 of his direct knowledge and his personal involvement.
6 In the Celebici judgement, the Trial Chamber
7 said that there had to be some specific information
8 available to a superior which would provide notice of
9 offences committed by his subordinates. In that case,
10 the Trial Chamber noted, however, that the information
11 need not be sufficient to compel the conclusion of the
12 existence of the crimes but sufficient to put him on
13 enquiry of the possible existence of the crimes having
14 been committed. All there needs to exist is
15 information of a sufficiently widespread and notorious
16 nature which, as the section says, "should have enabled
17 him to conclude," but these formulations only have
18 application in those cases where there is no direct
19 knowledge of his presence when the crime was actually
20 being committed.
21 On the evidence of this case, there can be no
22 issue that Aleksovski was the warden or commander of
23 the camp. He clearly admits this himself, but
24 irrespective of what he might say, the evidence of his
25 position of authority is overwhelming.
1 As was noted in the Celebici judgement at
2 paragraph 750, the Trial Chamber states:
3 "It seems inescapable from the testimony of
4 all the detainees that they acknowledged Mucic as the
5 prison camp commander. The detainees came to this
6 conclusion because Delic called him commander or
7 because Mucic himself introduced himself as commander
8 or because his behaviour towards the guards was that of
9 commander. Concisely stated, everything about Mucic
10 contained the indicia and hallmark of a de facto
11 exercise of authority. Even in the absence of explicit
12 de jure authority, a superior's exercise of de facto
13 control may subject him to criminal liability for the
14 acts of his subordinates. Where the position of Mucic
15 manifests all the powers and functions of a formal
16 appointment, it is idle to contend otherwise."
17 In paragraph 261, they say that the precise
18 scope of the superior's duties are irrelevant to the
19 issue. There was evidence of his presence in the camp
20 and the exercise of his de facto authority over prison
21 camp personnel.
22 In this case, it would be hard to find a more
23 convincing case of superior responsibility than that of
24 Mr. Aleksovski. On the evidence that you have heard in
25 this case, it is, in our submission, frankly,
2 Turning to another matter, Your Honours,
3 relating to lesser included charges. The issue of
4 whether the Tribunal has authority to find an accused
5 person not guilty of a serious charge as specified in
6 the indictment but, on the evidence, guilty of a less
7 serious charge not specified in the indictment is not
8 without controversy. The Tadic Trial Chamber decided
9 that it did not have the authority to find the accused
10 person guilty of a less serious charge in those
11 circumstances where the accused had been acquitted of a
12 far more serious charge. In the Celebici case, the
13 Trial Chamber took the opposite view.
14 In paragraph 866, they say that, when dealing
15 with the charges in that case:
16 "Nonetheless, it is clear that Delic and
17 Landzo were, at the very least, the perpetrators of
18 heinous acts which caused great physical suffering to
19 the victim."
20 They then say: "It is a principle of law
21 that a grave offence includes a lesser offence of the
22 same nature. Accordingly, the Trial Chamber finds
23 Delic and Landzo not guilty of the charges of wilful
24 killing and murder but finds them guilty of wilfully
25 causing great suffering or serious injury to body and
1 health, a grave breach of the Geneva Conventions."
2 Having regard to the fact that the
3 International Criminal Tribunal is not restricted to
4 any one system of law, it would be entirely
5 appropriate, in my submission, for the Trial Chamber to
6 follow and expand upon the course set by the Trial
7 Chamber in the Celebici case and introduce this
8 principle of lesser included offences in relation to
9 these matters.
10 Turning now, Your Honours, to briefly touch
11 upon matters raised in the Defence submission that you
12 have before you, their written submission, in paragraph
13 2.1, the Defence assert that the Prosecutor has not
14 proved a state of international armed conflict or
15 partial occupation in the territory of Busovaca
16 municipality in the period from January till the end of
17 May 1993. They are quite right. We have not been that
18 specific. The reason for this is because, in our
19 submission, we do not, as a matter of law, have to
20 prove this for the grave breach provisions of the
21 Geneva Conventions to apply. It has not been stated in
22 the indictment that we would prove this nor that we
23 ever asserted that we would prove this. The Prosecutor
24 did however, in paragraph 22.1 of the indictment,
25 allege that a state of international armed conflict did
1 exist in the Republic of Bosnia-Herzegovina at the
2 relevant times, and we have certainly proved this.
3 With respect to, as I have said, the
4 parameters of the conflict, we are not here examining
5 the Busovaca/Vitez municipality and the particular
6 forces involved in the conflict in that area to
7 determine whether the conflict was international or
8 internal. Rather, the question is, was the conflict in
9 Bosnia-Herzegovina international?
10 There are other matters that the Defence
11 consider we have not proved referred to in part 2 of
12 the Defence submissions, but either as a matter of law,
13 there is no obligation to prove such matters, or
14 alternatively, the matters have been more amply proved
15 in accordance with the obligations imposed upon the
16 Prosecutor. For the purpose of my submission, it's not
17 necessary for me to dwell on these matters, as they are
18 primarily factual and will be discussed in greater
19 detail by my colleague, Mr. Meddegoda.
20 The Defence, in their submission, pages 14
21 and 15, agree with the Prosecution that the accused
22 started to work as a warden of the Kaonik detention
23 camp in January 1993 and exercised control over the
24 camp, but they argue that because we did not prove that
25 he was a member of the HVO, that he had no rank or that
1 he was a military commander, that because of this,
2 somehow this is fatal to our case. The Prosecution
3 never alleged that he had a military rank or that he
4 was a military commander. This was not alleged in the
5 indictment. It was not alleged in the indictment
6 because it does not, as a matter of law, have to be
7 proved as a legal requirement by the Prosecution.
8 Again, in the Celebici judgement, page 261,
9 the Trial Chamber refer to the Defence argument in that
10 case that the commander of Celebici, Mucic, had no
11 formal command like the position here; therefore, Mucic
12 could not be held responsible. They refer to the
13 Defence concession that Mucic did what he could within
14 the limit of his authority.
15 The Trial Chamber, nevertheless, concluded
16 that he was in a position to help detainees, and they
18 "There is no suggestion ... that superior
19 authority can only be vested formally in written
20 form ... individuals in positions of authority, whether
21 civilian or military structures, may incur criminal
22 responsibility on the basis of their de facto as well
23 as de jure position as superiors. The mere absence of
24 formal legal authority to control the actions of
25 subordinates should therefore not be deemed to defeat
1 the imposition of criminal responsibility."
2 On page 17 of the Defence submissions, it is
3 argued --
4 I have to go even slower, Your Honours.
5 It is argued that the Prosecution failed to
6 prove that the accused had knowledge of the commission
7 of offences contrary to the Geneva Conventions or that
8 persons were about to commit such crimes. This is, in
9 our submission, an extraordinary submission considering
10 the evidence. Aleksovski himself admitted that
11 offences contrary to the Geneva Conventions were being
12 committed. He was present when such offences were
13 committed. He would have to have been in a coma not to
14 know what was going on in the Kaonik camp during the
15 relevant period.
16 The Defence go on, at the bottom of page 17,
17 to make an entirely unsubstantiated comment that:
18 "... Analysing the witnesses' testimonies of
19 the disputable facts, the unquestionable impression is
20 that the witnesses have been instructed and manipulated
21 by the secret police AID controlled by the Bosnian
22 Muslims which is indicated by the fact that their
23 depositions were taken in the premises of the police in
24 a pre-trial proceeding."
25 JUDGE RODRIGUES: Mr. Niemann, could you
1 please slow down a little bit -- that is why I'm
2 interrupting you -- because we can give you some extra
3 time if necessary at the end as a present.
4 MR. NIEMANN: Thank you. I'm more concerned
5 about my colleague, Mr. Meddegoda, cutting into his
6 time, Your Honours, but I will certainly slow down.
7 I was just referring to the fact that the
8 Defence, in their submissions, had said that the
9 impression was that the witnesses had been manipulated
10 by the secret police. They base this on the fact of
11 where the pre-trial statements were taken. Well, Your
12 Honours, the pre-trial statements were taken by
13 professional investigators of the Office of the
14 Prosecutor. The witnesses were, in no way,
15 manipulated. There is absolutely no evidence of this.
16 In our submission, this is a cowardly
17 allegation, having regard to the fact that the
18 witnesses were never cross-examined on this matter.
19 They came to The Hague, exposed themselves for
20 cross-examination, but the Defence did not confront
21 them with this unfounded allegation. They waited until
22 the witnesses returned, and behind their backs, they
23 make these comments.
24 On page 18 of the Defence submission, the
25 Defence complain that we have not produced any medical
1 evidence of death. In our submission, there is one
2 very good reason for this, and that is because
3 Mr. Aleksovski has not been charged with killing
4 anyone. With respect to the evidence of serious injury
5 to body or health, again there has been extensive
6 evidence of this, but there's no requirement at all of
7 this having to be supported by medical testimony when
8 one has direct eyewitness testimony.
9 Both in Tadic and Celebici, the Trial
10 Chambers have held that corroboration of evidence is
11 not a customary rule of international law and, as such,
12 should not ordinarily be required by the International
13 Tribunal. That is paragraph 594 of Celebici and 539 of
15 Accordingly, the eyewitness testimony is
16 sufficient on its own to establish such matters, and
17 medical or expert testimony of such matters is not
19 Interestingly enough, the Defence do not
20 dispute the fact that the police from the HVO were
21 taking Muslim prisoners from the Kaonik prison camp to
22 the front line to dig trenches. As I mentioned before,
23 they go on to say that they consider it established
24 that Jasmin Sehovic and Nermin Elezovic were killed (7
25 February 1993) when they were forcibly taken to Kula to
1 dig trenches for the HVO.
2 All they can say with regard to this is that
3 the accused, the military police, and the competent
4 court took appropriate action. The accused had
5 knowledge, he had the capacity to take action if he so
6 desired, and he knew just how dangerous it was for
7 Muslims to be taken from the prison and made to dig
8 these trenches. This, in our submission, is a very
9 clear and further admission of guilt on the part of the
11 When dealing with the classifications of the
12 conflict as "international" and the status of
13 "protected persons" in the "Legal Aspects and
14 Categories" part 4 of the Defence submission, the
15 Defence rely almost exclusively on the Tadic judgement,
16 which, as Your Honours know, was not followed in the
17 Celebici decision. Interestingly enough though, on
18 page 41 of the Defence submission, they do concede that
19 the Defence has no doubt that the alleged victims
20 covered by the indictment are civilians.
21 Just for a moment, I might turn to the
22 indictment itself. From a reading of the Defence
23 submission, one gains the impression that the Defence
24 are under the misapprehension that the Prosecutor has
25 set out to prove all allegations in the indictment
1 which are directed to persons who were originally
2 co-accused with Mr. Aleksovski.
3 Of course, this indictment is a multi-accused
4 indictment, and the accused has been severed from the
5 indictment and a separate trial has been held. A good
6 many of the allegations in the indictment apply
7 exclusively to the other accused and have no
8 application to the accused Mr. Aleksovski. However,
9 there are some paragraphs that do apply.
10 For example, paragraph 1: In our submission,
11 the Prosecution has proved the allegation concerning
12 the conflict as particularised in this paragraph. Some
13 of the allegations in the paragraph are more
14 particulars and do not need to be proved beyond a
15 reasonable doubt but nonetheless have been proved.
16 Paragraph 7: Particulars as to the accused
17 have been proved to the level of the required
19 Paragraph 20: The Prosecution has proved
20 beyond a reasonable doubt that the accused was the
21 commander of Kaonik at the relevant time; he was in a
22 superior position to others in the camp; he exercised
23 the role of commander by meeting with officials of the
24 International Community. The Prosecution has also
25 proved to the required standard that he had an
1 understanding of the Geneva Conventions.
2 Paragraph 21 --
3 JUDGE RODRIGUES: Mr. Niemann, I apologise,
4 but we have to wait a little longer for the French
5 interpretation which is lagging behind considerably.
6 Therefore, French booth, will you continue up
7 to the point where Mr. Niemann stopped?
8 Mr. Niemann, you may continue now, and try to
9 go a little more slowly to avoid the same situation
10 from recurring. I apologise, Mr. Niemann.
11 MR. NIEMANN: Yes, Your Honour.
12 Paragraph 21: The Prosecution has proved
13 that Aleksovski exercised control over the Kaonik
15 Paragraph 22.1: The Prosecution has proved
16 to the requisite level that an international armed
17 conflict and partial occupation existed in
18 Bosnia-Herzegovina at the relevant time.
19 Paragraph 22.2: That the alleged grave
20 breaches occurred during an international armed
21 conflict has been proved beyond the required level, in
22 our submission.
23 Paragraph 22.3: The Prosecution has proved
24 that the crimes charged as crimes against humanity took
25 place as part of a widespread and systematic attack.
1 Paragraph 22.4: That the victims were
2 protected persons under the Geneva Convention has also
3 been proved.
4 Paragraph 22.5: That the accused is bound by
5 those conventions.
6 Paragraph 31: It has been established that,
7 at the relevant times, the accused Aleksovski accepted
8 and detained hundreds of Bosnian Muslim civilians from
9 the HVO and their agents. The civilians, for the most
10 part, came from the municipalities of Vitez and
11 Busovaca. That many of the detainees were subjected to
12 inhumane treatment, which included interrogation,
13 physical and psychological harm, forced labour,
14 including trench digging, and use as human shields, and
15 that some of the detainees were murdered or otherwise
17 Paragraph 37: That the accused was
18 responsible under Article 7(1) and (3) of the Statute
19 of the Tribunal for: Inhumane treatment, contrary to
20 Article 2(b) of the Statute; wilfully causing great
21 suffering or serious injury to body or health, contrary
22 to Article 2(c); and outrages upon personal dignity,
23 contrary to Article 3 of the Statute.
24 All these matters have been proved to the
25 requisite level of proof such that, in our submission,
1 the accused is guilty as charged.
2 Turning to the question of sentencing, if
3 Your Honours please. Again, looking at the decision in
4 Celebici, in paragraphs 1237 to 1248 of their judgement,
5 the Trial Chamber provides an interesting discussion of
6 its sentencing criteria with respect to Mucic, who was
7 the commander of the Celebici prison camp and most
8 analogous to Mr. Aleksovski. Unlike the situation with
9 Mr. Aleksovski, the Chamber acknowledges that there was
10 no credible evidence at trial that Mucic actually
11 participated in acts of violence against prisoners and
12 that he may have occasionally prevented such acts of
13 violence. But the Celebici Trial Chamber does not use
14 this distinction to reduce Mucic's culpability per se.
15 On the contrary, in paragraphs 1242 and 1243
16 of the judgement, they observe that:
17 "... conditions of detention in the Celebici
18 prison camp were harsh and indeed inhumane ... No one
19 appeared to care whether the detainees survived. These
20 were the conditions perpetrated by Mucic, who was the
21 commander of the Celebici prison camp after its
22 creation ... Mr. Mucic was responsible for the
23 conditions in the prison camp and the unlawful
24 confinement of the civilians there detained. He made
25 no effort to prevent or punish those who mistreated the
1 prisoners or even to investigate specific incidents of
2 mistreatment including the death of detainees ..."
3 Thus, for the purposes of liability under
4 Article 7(3), Mucic's individual criminal
5 responsibility was unrelated to whether he directly
6 participated in acts of violence against prisoners or
7 not. This is consistent with the International
8 Committee of the Red Cross commentaries that describe
9 how superiors are often in unique positions to reduce
10 suffering during wartime. In paragraph 1248 of the
11 Celebici judgement, they observed:
12 "On the whole, the Trial Chamber has taken
13 into consideration the conduct of the accused within
14 the situation when he was in possession of considerable
15 authority and was exercising the power of life and
16 death over the detainees in the prison camp.
17 "The Trial Chamber has taken into account the
18 fact that the accused has not been named by any of the
19 witnesses as an active participant in any of the
20 murders or tortures for which he was charged with
21 responsibility as a superior ... The scenario thus
22 described would suggest the recognition of individual
23 failing as an aspect of human frailty, rather than one
24 of individual malice. The criminal liability of
25 Mr. Mucic has arisen entirely from his failure to
1 exercise his superior authority for the beneficial
2 purpose of the detainees in the Celebici prison camp."
3 Mr. Aleksovski, on the other hand, directly
4 participated when beatings were occurring and when
5 interrogations of prisoners took place. He sent
6 prisoners out to the front lines to dig trenches on a
7 daily basis, hid abused prisoners from the
8 International Committee of the Red Cross delegations,
9 and promised one of the guards that Hamdo Dautovic
10 would not leave Kaonik alive.
11 Applying the logic of the Celebici judgement,
12 the repeated malice exhibited by Mr. Aleksovski serves
13 as an aggravating factor that should increase his
14 sentence, even for acts of violence committed by
15 subordinates in which he had no direct participation at
17 Aleksovski had the capacity to prevent harm
18 to the prisoners but even more fundamental was his duty
19 to prevent. The accused accepted a mandate from the
20 HVO government and army to run a prison. He enjoyed
21 broad authority over the institution, the prison
22 guards, and the lives of the prisoners. The accused
23 has a university education, and from his prior
24 professional experience, the accused was fully aware of
25 the proper standards for running a prison. He made no
1 serious effort to fulfil his duty and alleviate the
2 suffering and deplorable conditions of the prisoners,
3 although given his dominance over the prison structure
4 and the guards, it would have been relatively easy for
5 him to have done so.
6 Abrogation of the accused's Article 7(3)
7 responsibility as a superior is, in our submission,
8 more culpable than the commission of the specific
9 crimes themselves. That is because, by codifying this
10 theory of superior responsibility in the Additional
11 Protocols to the 1949 Geneva Conventions, the
12 international community established that a superior's
13 fulfilment of this duty was essential to reduce the
14 suffering of war. The culpability of a person who
15 commits a specific offence loses significance, in our
16 submission, in comparison with an accused who controls
17 an entire organisation.
18 Pursuant to Rule 101(B)(ii), the Prosecution
19 asserts that there are no mitigating circumstances or
20 instances of substantial cooperation with the
21 Prosecutor which would earn him any reduction in the
22 sentence that would otherwise be imposed. Having
23 regard to the degree of his direct participation in the
24 commission of these crimes and hence his state of mind,
25 in our submission, his offending was very serious.
1 It has been the practice of the Prosecutor to
2 express her views on what she considers the appropriate
3 sentence should be upon the conviction of the accused.
4 I am accordingly instructed to advise the Chamber that
5 the Prosecutor considers that having regard to all the
6 circumstances of this case, the appropriate sentence,
7 in her view, in the case of Mr. Aleksovski, is that he
8 should serve a sentence of not less than 10 years'
10 If Your Honours please, those are my
12 I now turn to my colleague, Mr. Meddegoda,
13 who will address you on matters of fact, if Your
14 Honours please.
15 JUDGE RODRIGUES: Thank you, Mr. Niemann. I
16 think that we all are familiar with the capacity of
17 analysis and synthesis by Mr. Meddegoda, and therefore,
18 we are going to give him a 20-minute break for us and
19 before he begins.
20 Therefore, a 20-minute break.
21 --- Recess taken at 4.40 p.m.
22 --- On resuming at 5.04 p.m.
23 (The accused entered court)
24 JUDGE RODRIGUES: Perhaps a small explanation
25 is required in connection with the delay in the
1 interpretation. Perhaps -- the interpreters need to
2 have the official text of the Celebici judgement to be
3 able to interpret; they need to have an official text.
4 But I think we have overcome that. We have already
5 referred to Mr. Meddegoda's capacity of synthesis, but
6 the present is for the Prosecution as a whole, not only
7 for Mr. Niemann.
8 I want to tell you that we have slightly
9 reorganised the framework of our proceedings so that
10 the Chamber is going to have the morning and the
11 afternoon because we will perhaps need some time for
12 the rebuttal and the rejoinder.
13 Mr. Meddegoda, we are not going to be able to
14 tell in advance your capacity for synthesis, but we do
15 believe in it, so please go slowly because the
16 interpreters need to provide an official
17 interpretation. When you quote a text, then the
18 interpreters need to find the original version of the
19 Celebici judgement or whatever it is you are quoting.
20 Therefore, I think this is very important for the
21 proceedings that we envisage sufficient time in order
22 to be able to do things properly.
23 Therefore, Mr. Meddegoda, take your time
24 knowing that at 6.00, we are going to adjourn for
25 today, but you will be able to continue tomorrow
1 knowing again that counsel for the Defence is also
2 going to have sufficient time. Therefore, tomorrow we
3 will resume at 9.30, and we will work until 1.00 for
4 the morning; and in the afternoon, we are going to
5 resume work at 2.30 and continue until 6.00 p.m., if
7 Therefore, please go slowly, and this applies
8 to both the Prosecution and the Defence.
9 It is up to you now, Mr. Meddegoda. We are
10 going to listen to you with interest.
11 MR. MEDDEGODA: Your Honours, I will fully
12 comply with Your Honours' directive, and if Your
13 Honours please, for my part, I will deal with the
14 factual issues, examining the evidence that has been
15 led before this Trial Chamber.
16 In the course of its case, the Prosecution
17 called 37 witnesses to testify before this Court. It
18 is my submission that the evidence led before this
19 Court establishes beyond reasonable doubt that the
20 accused Zlatko Aleksovski is guilty of the charges
21 alleged against him in the indictment.
22 Your Honours, I now propose to examine the
23 evidence in order to demonstrate that the Prosecution
24 has established the case against the accused beyond
25 reasonable doubt.
1 Vahid Hajdarevic, a Bosnian Muslim resident
2 of Busovaca, testified that he had been mobilised into
3 the Territorial Defence in April of 1992 and had been
4 deployed on the front line in June 1992 and then in
5 September and again in December of that year in order
6 to "defend the integrity of Bosnia-Herzegovina,
7 whereas," if I may quote, "the HVO members at that time
8 were always within certain armed forces ... focused
9 more on obstructing the work of the government in
10 Busovaca and were trying to place the town in a
12 Thus, from about October of that year, there
13 were various incidents of "mistreatment and harassment,
14 disarming of members of the Territorial Defence, and
15 even plundering and looting of some resources. For
16 instance," the witness said, "I know that some vehicles
17 from us that were going to Slovenia were confiscated by
18 the HVO, so all kinds of looting and plunder occurred.
19 Even before that, there were some minor incidents"
20 which were resolved by negotiation. "But as from
21 October, as far as I can recall ... the political
22 leadership of the HDZ and, of course, with the armed
23 units of the HVO ... took over a number of institutions
24 in the municipality."
25 Recalling the incidents of harassment and
1 mistreatment, it was his testimony that "Muslim
2 intellectuals were taken into custody by the HVO for
3 some sort of interrogation, Muslim coffee shops, shops
4 and property were blown up ..." and on 21st January,
5 1993, "Mirsad Delija was murdered, thus heightening the
6 tension and causing fear among the Muslim population
7 living in Busovaca."
8 On 24 January, 1993, the witness and his
9 father Sead had been arrested by the HVO at the railway
10 station in Busovaca and taken to the bus station where
11 they were detained together with others, including
12 Remzija Kutic and Mirsad Dizdarevic.
13 Late in the evening, the witness and about
14 nine others had been transferred to Kaonik camp where
15 they had been incarcerated in a small cell.
16 Describing the building as a hangar, he said
17 that the cells were located on either side of a long
18 corridor. He had been detained in three different
19 cells. He described the conditions within the cell as
20 unhygienic. In order to use the toilet, he said, he
21 "had to knock on the cell door, and if the guard who
22 was there saw fit, he would then allow us to go to the
23 toilet." There were no heating facilities in the cell
24 either, nor were there proper facilities to enable the
25 detainees to observe their religious rites and rituals.
1 He said that during the period of his
2 detention, the accused was the camp commander, a fact
3 he learnt having spoken to some of the guards and
4 seeing the accused issue "certain orders to the guards,
5 it was not difficult to conclude this," the witness
7 He was one among many detainees who were
8 taken out on labour deployment to dig trenches on the
9 front lines of the HVO in Prosje, Podjele, and Kula.
10 Describing the manner in which detainees would be taken
11 out of their cells for trench-digging and other labour
12 deployment, the witness testified that depending on the
13 needs of the HVO, the guard would start "calling out
14 their names from a list, and you simply had to answer
15 and then the guard would open the door and turn you
16 over to the person who came," who "would then take you
17 to those places and ... you had to do whatever you were
18 told to do." He said that he had to dig trenches for
19 long hours, at times for even 36 hours. " ... as soon
20 as we had been brought to that location ... soldiers
21 systematically mistreated and beat people to find out
22 whether they had any valuables concealed." "During the
23 digging, we were not allowed to stand upright. We had
24 to keep working because if you did stretch your back,
25 then the soldier would hit you either with his rifle
1 butt or would kick you ..."
2 Recalling the pain, humiliation, and
3 suffering when he was beaten by an HVO soldier,
4 resulting in two broken ribs on the right side,
5 Mr. Hajdarevic said, "I had to kneel before him for him
6 to ask me questions ... If he was dissatisfied with
7 the answer, he would kick me like a football."
8 The witness, Your Honour, also referred to
9 the killings of Jasmin Sehovic and Nermin Elezovic in
10 Kula and the killing of a person nicknamed "Cakara" in
11 Prosje in the course of trench-digging.
12 On the 24th of January, 1993, Witness A was
13 arrested by HVO soldiers and taken to Kaonik camp where
14 he was detained. He described the cell as a very small
15 one with no electric lights. It had a wooden platform
16 about half a metre in height which was the place where
17 people had to sleep.
18 About two or three days into his detention in
19 Kaonik, it was the witness's testimony that the
20 accused, introducing himself as the camp commander,
21 said that "we would be under his jurisdiction."
22 The witness was one amongst many who were
23 taken to the front lines of the HVO to dig trenches and
24 dugouts. He had been taken on four separate occasions,
25 and on all such occasions, there had been sporadic
1 gunfire. On one occasion, he had been subjected to
2 psychological mistreatment by HVO soldiers.
3 He was taken again the next day to a village
4 in the direction of Donja Rovna. The following day
5 again it was the same routine in the area of Donja
6 Solakovici or Milavice where the group had to dig
7 dugouts, trenches, and so on and so on until very late,
8 almost until midnight.
9 The fourth occasion, Your Honours, was in the
10 location of Kula where " ... they told us to take out
11 everything we had in our pockets, money, jewellery from
12 our necks, and to put everything on a pile, and ...
13 they took some things from the pile ..."
14 After that, the group had continued in the
15 direction of Kula, where they kept on digging trenches
16 until about six in the evening, after which they had
17 been taken to an old house where they were subjected to
18 severe mistreatment, torture, and verbal abuse.
19 Recalling this incident, the witness said,
20 "... One of the detainees was first taken and he was
21 beaten outside the house. Then another was taken out.
22 He was also beaten. We could hear him scream. Next it
23 was my turn. I was the third one to be taken out. So
24 they took me outside and ... another soldier hit me in
25 the back with a blunt object and I fell down. He told
1 me to get up, and I tried to get up but I could not at
2 that moment, so he hit me. He kicked me with his
3 military boots again in my nose, and there was blood
4 coming from my nose. He screamed again. He told me to
5 get up, but I could not ... and he again kicked me in
6 the ear, which started to bleed. He kept yelling,
7 telling me to get up, and I couldn't manage to get up,
8 and then he told me to get back into the house ... and
9 as I was getting into the house, he was beating me all
10 the time ... After that, more detainees were taken
11 out, and that was how we were."
12 That is how, Your Honours, he described the
13 first round of beating, if I may call it that. It was
14 a savage and barbaric attack on innocent victims, on
15 innocent civilians who were detained for no reason
16 other than being Muslims.
17 "While I was in that group, since I was
18 bleeding, my friends smeared themselves with my blood
19 so as to make it look as though they had already been
20 beaten," the witness said. "The solders then came
21 into the house and they started beating all of us. One
22 of them had a knife, and he was stabbing detainees with
23 his knife. The other one was using his rifle butt to
24 hit us with. There was one with a very thick metal
25 chain, another one with a club. It lasted about two
1 hours. After that, things went quiet. They forced us
2 to pray, to say the Lord's prayer, to kiss their
3 cross ... After that, Jasmin Sehovic was taken and was
4 beaten up again and we could hear him moan and cry, and
5 after that, we heard some shots from an automatic rifle
6 and it went quiet for several minutes. Then Nermin
7 Elezovic was taken out. He had also received some
8 stabs in the stomach. He was also beaten outside and
9 we could hear him moan and then we could hear shots
10 from an automatic rifle." In addition to Jasmin
11 Sehovic and Nermin Elezovic, a young man from Rogatica
12 had also been stabbed.
13 Witness B, Your Honours, a Bosnian Muslim,
14 said that on the 25th of January, 1993, he and his
15 neighbours had surrendered to the HVO after which the
16 soldiers had mistreated and abused them saying, "Look
17 here. This is all a Croatian area. Only one
18 population, only one ethnic community should be living
19 in this area."
20 Having been brought to the camp, they had
21 been marched into the hangar building "with their hands
22 behind their backs," in which, by this time, there had
23 been about 200 to 300 Muslims already detained, which
24 increased to about 500 the next day.
25 He went on to describe the process of
1 registration and said that "HVO members kept bringing
2 in more Muslims to the hangar, and there were only
3 wooden pallets in that hangar and maybe a blanket that
4 was supposed to be shared by two persons."
5 "While we were in the camp, we got two
6 pieces of bread, one plate for two prisoners. We had
7 to eat from the same plate. It was watery beans. The
8 food either was not salty or very salty. As for water,
9 we would knock on the door of the cell if we were
10 thirsty. If the guard was good, he would ask him for
11 water. At times, the guards would say, "What do you
12 want water for?'"
13 Upon being questioned about the interior of
14 the cell, the witness described in detail its location,
15 its interior, and the facilities or the lack of them.
16 He said that "the cell was located on the right-hand
17 corner next to the lavatory ... on the far side of the
18 hangar" from where he would hear "roll calls and when
19 members of the HVO would call out the name of a Muslim
20 ... the Muslim said which cell he was in, then you
21 would hear beating and you would hear water being
22 splashed across to bring him to life after the
24 Describing his personal experiences, the
25 witness said that on one occasion he and ten other
1 Muslims were taken to Prosje to dig trenches throughout
2 the day until about midnight.
3 The next day, Witness B and 20 others had
4 been taken to Kula where they dug trenches the whole
5 day and the whole night.
6 Upon hearing that the ICRC was visiting the
7 camp, the group of detainees had been brought back to
8 the camp. As soon as the members of the International
9 Committee of the Red Cross had left, there had been
10 another roll call and they had been taken back to Kula
11 to continue digging trenches. Again, they had dug
12 continuously until the next morning.
13 The witness testified that one of the HVO
14 members ordered him to open his mouth and cocked an
15 automatic gun into his mouth. He said, "I somehow
16 managed to move my head away and the gun went
17 off around my shoulder, but none of the bullets hit
18 me. I do not know how the rifle fell from my mouth to
19 my shoulder and went off ..."
20 Not only the witness, other detainees too who
21 were engaged in trench digging had been beaten
22 seriously, gravely beaten up. It was his evidence
23 that, at the time he was detained there, Zlatko
24 Aleksovski introduced himself as the warden of Kaonik
1 Witness D had also been arrested by the HVO
2 with the outbreak of hostilities in Busovaca around the
3 25th or 26th of January, 1993. Upon arrival in Kaonik,
4 he and the others had been detained in a cell and
5 interrogated by Marko Krilic and a guard named Marko
7 He had seen persons between the ages of 13
8 and 14 to 65 years detained in the camp. "There was
9 one boy ... from Prosje ... who was there with us and
10 he was between 13 and 14 years of age."
11 Describing the conditions in the camp, the
12 witness said that "the food was just some simply boiled
13 food and two people had to share one plate ... could
14 not take a bath ... could not shave ... 20 or 25 of us
15 used to sleep together in the cell ... Some people
16 would lie down and some people had to sit down and
17 sleep ..."
18 Your Honours, this witness was one of many
19 detainees who were taken for trench digging on numerous
20 occasions. Together with other detainees in his group,
21 he had to dig trenches and dugouts till late at night
22 without food or water, close to the front lines amidst
23 sporadic shooting, "in January, early February," in
24 freezing conditions. "It was very cold, the earth was
25 frozen ... we did not have warm clothes," the witness
2 It was in these terrible conditions that this
3 witness and other detainees, including the 13-year-old
4 boy, were forced to dig trenches in Milavice, Prosje,
5 Kovacevac, and Kula, amongst other locations.
6 If I may recount Witness F's evidence, Your
7 Honours, he described the events in Busovaca in the
8 latter half of January 1993 and said that "these were
9 among the worst nights because ugly things were
10 happening, explosions, devices were planted on almost
11 all shops, stores held by Muslims ... There were about
12 50 shops in the centre of town, so that on the 19th,
13 two or three explosions destroyed two cafes, and on
14 20th January ... in the evening, again things became
15 nasty, and this could be felt first by the cutting of
16 telephone lines, and we knew straightaway something was
17 about to happen ..."
18 Restrictive measures had also been introduced
19 by the HVO headed by Dario Kordic, Anto Sliskovic, and
20 others directed against the Muslims. He said:
21 " ... not a single Muslim could move around freely ...
22 the only people to move around were HVO policemen and
23 HVO fighters, combatants, so they were the ones who
24 could have done it, no one else," the witness said.
25 Late in the evening of the 20th, the
1 witness's house had been attacked and possessions
2 looted. Again on the 24th of January, there had been
3 shooting, explosions, and shelling with snipers all
4 over the town, and "people panicked, a couple were
5 wounded, a couple were killed, and virtually the entire
6 population was swept by panic ... the HVO soldiers were
7 approaching from all sides ... closer and closer ... it
8 was something quite horrifying," the witness
10 "About 3.30 on that day, 60 to 70 Muslim men
11 had been rounded up" and brought to Kaonik. It was his
12 evidence, Your Honours, that soldiers wearing both the
13 HVO insignia and the HV insignia were in Busovaca
14 during this time. He said that some "were wearing the
15 HVO insignia and I knew them personally. There were
16 soldiers who wore the HV insignia and Runolist
17 Brigade. They had separate accents. They were not
18 locals from Busovaca."
19 Your Honours will see that this witness is
20 very clear in his evidence that there were soldiers
21 from the Croatian army whom he called foreigners who
22 were not from the area, who were operating alongside
23 the HVO soldiers during this time. In answer to
24 specific questions, the witness reiterated that he saw
25 soldiers wearing both the HV and the HVO insignia on 26
1 January, 1993.
2 Upon being brought to the hangar, they had
3 been lined up against a wall and searched, and at that
4 moment, the accused, Mr. Aleksovski, addressing them
5 had said: "Do not fear. You will not miss a hair from
6 your head."
7 The first night spent inside the hangar on
8 the concrete floor had been horribly cold. At one
9 point, a few soldiers came in and took out several
10 young men.
11 Referring to the guards in the camp, the
12 witness said that they were all soldiers. "The guard
13 was a soldier too. He also had insignia belonging to
14 the HVO on him. They were wearing parts of a
15 camouflage uniform, either the trousers or the
17 He had experienced different things from the
18 very moment he got there. Let us say, the witness
19 said: "Right after dark, maybe half an hour later, I
20 would be brought out into the hallway and I would be
21 beaten up. This would happen every night. I was
22 brought out mostly by one person into the hallway. He
23 must have received some instructions. He had my
24 description because he knew exactly who I was. So he
25 would simply bring me out of the cell. The cell door
1 would not even close, and I would already be beaten,
2 and I would get bloody. He kept coming back every
3 night and beating me. Fortunately, he beat, for the
4 most part, with his hands and he kicked me. He did not
5 use any other instruments. He would kick and beat me
6 with his hands ... and beat me up badly."
7 Your Honours, the witness also described what
8 happened to him when he and another detainee were taken
9 to the building of the Intervention Squad at the
10 entrance to the camp. Narrating his experience, the
11 witness said: "The third day after I was detained in
12 the cell, I was selected and another guy. We were
13 taken to the building at the entrance ... for some form
14 of informative interview, at least that is what we were
15 told. A young soldier ... took us to the entrance of
16 the camp. We were immediately shut up in a cell ...
17 the other man was taken away. I was left behind
18 sitting on a military bed.
19 "Ten or fifteen minutes later, this young man
20 was brought back after being beaten up. Then I was
21 taken. I was taken upstairs and there was a room, a
22 somewhat larger room, and in the middle of the room
23 there was a table ... At the table, two men were
24 sitting, two fighters, soldiers whom I knew personally
25 very well. In fact, I was glad to see them," he said.
1 "However, I was shortly to be disappointed. They
2 offered me cigarettes and coffee and I accepted. Then
3 some sort of conversation started, but let me add that
4 at this table, there were six or seven various types of
5 sticks, wooden, rubber, steel, even police truncheons.
6 I was on the chair at one end of the table, and after
7 the cigarette and the coffee, the questioning started.
8 "They asked me questions about all kinds of
9 things, even about certain Croats who socialised with
10 us. After each answer, the three men who were standing
11 behind my back would hit me with whatever they could
12 get hold of. Perhaps the easiest ... were their kicks
13 with their boots. This lasted three and a half hours.
14 There were some terrible moments.
15 "At one point in time, Marelja walked in, the
16 man who had beat me every night. He hit me with his
17 fist in the face, so he fractured my jaw. After about
18 three hours of this torture, one of these men pushed my
19 head back and put a knife against my throat. I tried
20 to push my neck against that knife. I did not care any
21 more," the witness said.
22 The witness also, Your Honours, described his
23 experiences with trench digging in places of Gavrine
24 Kuce near Putis, where he had spent the whole night
25 digging and the next day until about noon. In the
1 course of trench digging, the witness said: "Around
2 twelve, three of the soldiers who kept coming every
3 five to ten minutes would hit me with their boots, with
4 their hands ... Then around twelve, these three
5 finally came together and they sat near me."
6 "The three of them," he said, "were soldiers
7 wearing HVO insignia. One of them took a piece of
8 newspaper and he rolled it up into some kind of torch
9 and set it aflame, and the other one came behind me and
10 started burning off my beard, which was about two or
11 three centimetres long at the time. After this
12 burning, maybe an hour passed and I continued to dig.
13 They did not give me any water. I asked for some, but
14 it would have been better if I had not because I got
15 more blows over my back for that.
16 "Two of them then came back and took off my
17 hat from me. They put it on a stick, and when they
18 managed to singe it about 70 per cent ... they ordered
19 me to eat it. I was already fatigued because of all of
20 the work. I had not any water, but I had to eat this
21 hat. If I stopped or stalled or tried to get out of
22 it, I would get a blow, a kick, or I would be hit ..."
23 Referring to his release in an exchange
24 organised by the International Committee of the Red
25 Cross, the witness said that the exchange was delayed
1 because of these two men who had been killed in the
2 night between the 7th and the 8th. The Red Cross
3 insisted on finding them, but they were not to be
4 found. At the exchange, there were quite a number of
5 them. All the guards were present. Sliskovic was
6 present. Aleksovski was present. "All of them were
7 present," the witness said.
8 Your Honours, while corroborating other
9 Prosecution witnesses, Witness C testified about his
10 arrest by HVO forces on 27 January, 1993. He also
11 testified about the subsequent detention and
12 maltreatment in Kaonik camp.
13 Your Honours, I do not intend to go into the
14 details of the witness's testimony, except to say that
15 his testimony on these points are consistent with the
16 testimony of other Prosecution witnesses.
17 In the cell where he and his son were
18 detained, there had been about 18 to 20 detainees and
19 the conditions had been very bad. During the
20 detention, because he had been badly beaten and could
21 not sleep at all and did not have room enough to lie
22 down, he would simply sit in the cell and listen to the
23 cries and moans coming from the corridors.
24 As the witness had been suffering from great
25 pain resulting from the beatings, at his request, he
1 had been taken to the Busovaca health centre. In
2 response to a question as to whether he was given any
3 treatment at the health centre, the witness responded:
4 "I cannot really say that it was any help at all."
5 Testifying further, Your Honours, the witness
6 said that the guards and camp officials permitted
7 people from outside to enter the cells and beat the
8 prisoners, and he identified the accused Zlatko
9 Aleksovski as the commander of the camp.
10 Testifying about the breakout of the conflict
11 between the HVO and the army of Bosnia-Herzegovina
12 around 27 January, 1993, Witness L said that, after his
13 arrest, he had been beaten and mistreated by HVO
14 soldiers. He had been taken to Bare from where he had
15 been brought to the bus station in Busovaca and then
16 taken to Kaonik camp. This was his first stint of
17 detention in Kaonik where he was detained until 8
18 February, 1993.
19 The day after he was brought to Kaonik camp,
20 a group of about 20 detainees, including the witness,
21 had been taken to Podjele to dig trenches. They dug
22 throughout the day until about 8.00 in the night
23 without any rest and then again from 10.00 till the
24 next morning.
25 Witness L's second stint of detention, Your
1 Honours, commenced when he and Witness M were arrested
2 by HVO soldiers who attacked his village on 16 April,
3 1993. Upon arrival in Kaonik, Zlatko Aleksovski, the
4 accused, introduced himself as the camp commander. He
5 was waiting with several more guards. They had been
6 put into a cell whereupon members of the HVO military
7 police, Zarko and Miro, had started mistreating them.
8 "We were lying on the pallets. They jumped on the
9 pallets and started hitting us and kicking us in the
10 back, in the kidney area, and in the head."
11 Having mistreated the two detainees for some
12 time, they had left saying they would be back. As
13 promised, Zarko and Miro had come back, and Miro had
14 started beating his colleague whilst Zarko stood by
15 watching. At this stage, Your Honours, it was the
16 witness's evidence that the accused Aleksovski had
17 admonished Zarko by saying "What are you waiting for?
18 Why do you not act in the same way as Miro," and then
19 Zarko had started hitting him. These two men had
20 mistreated them again and some time later for the third
21 time. Then came Goran Medjugorac, an HVO member who
22 "started mistreating me ... beatings, blows mainly in
23 the kidney area and the head."
24 He also had been subjected to mistreatment
25 and torture by Anto Cakic "who ordered me to stand at
1 attention ... He would come in every 15 minutes to
2 check whether I was still standing, and when he came,
3 he would occasionally hit me with his leg or with his
4 fist ..."
5 The witness, Your Honours, also testified
6 about the procedure of selecting detainees for trench
7 digging and his own trench digging experiences in
8 Carica, Strane, Kula, Loncari, and Polom. In Strane,
9 there had been sniper fire, and bullets had whizzed
10 past them. At all these locations, they had to dig
11 trenches from morning till late in the evening.
12 He described the conditions of detention as
13 being "very bad." The food was described as
14 "horrible," and he had not had a shower throughout
15 this period. He also said that "anybody could come at
16 any time to abuse" the detainees.
17 His colleague, Your Honours, Witness M, who
18 had also been apprehended at the same time,
19 corroborated the testimony of Witness L. He referred
20 to incidents of beating and referred, in particular, to
21 an incident when two soldiers savagely beat him at the
22 instance of the accused Aleksovski "who had been there
23 all the time," the witness said.
24 That day, he had been beaten six times, and
25 on one occasion, he had lost his consciousness.
1 His "whole body had been black and blue down to the
2 ankles, and up to my neck, there were visible bruises
3 all over my body." This beating, he said, was
4 described as "a dance party."
5 Your Honours, whilst the testimonies of
6 Witnesses L and M are consistent, I submit that they
7 also corroborate each other on material particulars.
8 He was also amongst detainees who were taken
9 to Strane, Loncari, Putis, Kula, Solakovici, Carica,
10 and Polom to dig trenches in hazardous conditions and
11 subjected to abuse, merciless beatings, and severe
12 mistreatment while being engaged in trench digging.
13 At Strane, he had been whipped and beaten.
14 He said that "... throughout the period I spent at
15 Kaonik camp, I was taken to dig trenches and do other
16 forced labour," as a result of which "once I had on my
17 two palms 56 blisters ... and not once from the moment
18 that I was captured on 16 April until I left on 19 June
19 1993, not once did I have a bath ... we did not even
20 wash our hands, only when we went to the toilet, if you
21 had a chance and if the guard would let you wash your
22 hands and maybe your face ... What clothing I had on
23 me, that was what I took away with me, the vest I wore
24 throughout that time rotted, it fell apart, it was
25 rotten, so I threw it away while I was still in the
1 camp ... I never had any change of clothing ..."
2 Recalling his release from Kaonik, the
3 witness testified that the accused addressing him and
4 his colleague said: "You will be rewarded if you come
5 back here. You will not get out alive again," but
6 "thank God, this wish of the gentleman did not come
7 true," the witness said before Your Honours.
8 Testifying further before this Chamber, the
9 witness said that though the conditions in the camp
10 were bad, "nobody dared talk about these," even with
11 the ICRC.
12 Even after the detainees including the
13 witness were registered by the International Committee
14 of the Red Cross and the accused was advised by the
15 ICRC that the detainees "must not be taken to do labour
16 where we are not safe, and especially not to the front
17 lines, and to do forced labour such as we had been
18 doing," that same night, about midnight, they had been
19 taken to Strane to dig trenches.
20 Witness M, Your Honours, was aware of Arab
21 prisoners who were beaten more severely than others.
22 One detainee whom he identified as "the Arab from
23 Syria" "was in a horrible condition ... he had been
24 beaten and mistreated ... it was terrible -- from early
25 May up until my exchange ... he was beaten up every
1 day, he was abused, different men took turns in doing
2 these things to him."
3 The witness also said that when ICRC
4 officials visited the cells in the camp, the accused
5 denied them access to cell number 4, saying that "that
6 was some kind of storage room ... that there was no
7 need to look into that room, that there was no one
8 there ... and did not have the key ..."
9 Witness N, Your Honours, also a Bosnian
10 Muslim, suffered the same fate in Kaonik camp. Witness
11 N said that the accused, who was the warden of Kaonik
12 prison, said that the detainees "are now under my
14 This witness, Your Honours, testified about
15 the use of detainees as human shields. He said that
16 the following afternoon, 15 detainees, including the
17 witness, were called out by Marko Krilic, tied into
18 three groups of five each, and then taken to be used as
19 human shields. They had been taken to Skradno, where
20 they had to walk towards the village followed by HVO
21 soldiers. Then they had been taken to Strane where
22 again they had been used as a human shield. On this
23 occasion, HVO soldiers had been firing from behind them
24 towards Strane.
25 He had also been taken to dig trenches,
1 during which they had been subjected to abuse and
2 mistreatment by HVO soldiers, as he said, who "beat us
3 with rifle butts, with shovels, it was indescribable,"
4 he said. "There were moments when one felt like
5 crying ... and there were moments when you wanted to
6 die ..." They had been "completely exhausted by this
7 time. There were people with fractured ribs ... There
8 was no person who had not been either abused or badly
10 Witness O, Your Honours, who also testified
11 under pseudonym, was also used as a human shield in
12 Skradno, Strane, and he described the shooting that
13 went on as they were being used as human shields in
14 Strane. The next day, he had been taken to Merdani
15 again to be used as a human shield.
16 Witnesses P and Q, Your Honours, again
17 Bosnian Muslim civilians who had been arrested by HVO
18 soldiers and detained in Kaonik camp, corroborated the
19 testimony of other witnesses about their use as human
20 shields in Skradno, Strane, and Merdani. Witness P
21 said that his release from Kaonik was "like his second
22 birthday." Witness Q had also been taken to dig
23 trenches and dugouts in hazardous conditions in Kula
24 and Prosje, where he had been beaten and mistreated.
25 Your Honours, Witness R also narrated his
1 experiences during detention in Kaonik camp. Having
2 been arrested by the HVO in January of 1993, he had
3 been detained, during which time he had been taken to
4 Merdani to be used as a human shield. It was then
5 Witness R's testimony, Your Honours, that the camp
6 commander, Aleksovski, was standing by when the
7 detainees were called out to be used as human shields.
8 Witness S, Your Honours, also a Bosnian
9 Muslim civilian, had been arrested by the HVO on 25th
10 January, 1993, and taken to Kaonik where he was
11 detained. He too had been taken to Skradno and Strane
12 to be used as a human shield. He said during the
13 period of his detention, he had been taken to Donja
14 Polje, Donja Solakovici, and Bare to dig trenches for
15 the HVO. On one occasion, he had spoken to the accused
16 requesting that he be spared from trench-digging as
17 there were blisters on his hands. The accused had not
18 responded, "he had simply passed by" and "I was taken
19 out for digging again," the witness said.
20 Your Honours, testifying about the pre-war
21 situation in general and life in Busovaca in
22 particular, Edin Novalic said that it was more than
23 cordial and normal, with very cordial and friendly
24 relations between members of the different
25 ethnicities. Differences had become visible only after
1 the first multi-party elections in 1991. "Differences
2 were becoming more and more profound in everyday life.
3 HVO posters were visible all through the town, and
4 little by little, they started arming themselves
5 illegally. They became stronger and stronger every
6 day, and at a certain moment in the second half of
7 1992, the HVO, through the use of force, took over
8 complete power in the town of Busovaca with barricades
9 all over the town." In the witness's opinion, it was
10 "Dario Kordic and Anto Sliskovic who were the major
11 players in Busovaca."
12 By January of 1993, conflict had erupted in
13 Busovaca, with Muslim shops and businesses being
14 attacked by means of explosive devices on the night of
15 the 22nd of January.
16 On 23rd January, Muslims, including the
17 witness, had been arrested and taken to Kaonik camp
18 where they had been subjected to the routine of search
19 and detention in the presence of the accused.
20 Corroborating the evidence of the use of Muslim
21 prisoners as human shields, Mr. Novalic testified that
22 he had been taken to Strane and Merdani to negotiate
23 the surrender of the two villages.
24 Another Bosnian Muslim civilian, Meho Sivro,
25 from the village of Stojkovici, had been arrested on 13
1 April and brought to Kaonik camp. During the period of
2 his detention, the witness had been taken to Jelinak on
3 two occasions to dig trenches. On the first occasion,
4 he said it had been very dangerous when "all of us
5 could have got killed because a burst of fire was
6 opened on" our group of five or six while we were being
7 taken by an HVO soldier. The second time "it was the
8 same village," and they had dug throughout the night
9 till dawn when "the BH army started shelling the
10 village." Some explosions could also be heard. With
11 the ensuing panic, the commander had ordered that the
12 group of detainees be taken away and killed. The
13 witness had "thought it was the end, that we would all
14 be executed."
15 Proceeding towards Loncari, the witness said,
16 "We almost reached the village when the shooting
17 started from HVO weapons ... the bullets were hitting
18 the trees and the shrapnel ... started showering upon
19 us." The witness described quite vividly how he made
20 use of the ensuing chaos and panic to make good his
21 escape, running across fields, jumping over fences, and
22 sliding down slopes until he got to the territory
23 controlled by the BH army. Your Honours will recall
24 the emotional strain on the witness's face when
25 recounting those events and when he said that as a
1 result of this, he had to undergo surgery on his right
2 arm, which has only 60 per cent use for him now.
3 Another Bosnian Muslim witness, Your Honour,
4 Rasim Garanovic, said that at the beginning of 1993,
5 things started to change when "strange things began to
6 happen ... most probably from Zagreb ... through the
7 HVO, the HVO police. They started to ignore their
8 neighbours, the Bosniaks ... with less and less contact
9 with the Bosniaks" with an HVO "checkpoint right next
10 to my house."
11 On 14 April, 1993, he had been arrested, and
12 on his way to Busovaca, he had passed a checkpoint held
13 by the Croatian army with RPGs and other weapons.
14 Upon arrival in Kaonik camp after the routine
15 registration and search, the witness had been detained
16 in the hangar, and, describing the night in the hangar,
17 he said, "The night was very fatal for me. It was very
18 cold and I got cramps, very bad cramps, in my chest."
19 Some people had been seated on pallets but most had sat
20 on concrete and "I remained on concrete." "Then they
21 put some kind of imaginary line and said that whoever
22 crossed this line would be shot ..."
23 The next morning, after he had complained
24 that he was feeling unwell, he had been taken before
25 the camp commander, Zlatko Aleksovski, who had
1 questioned him and then he had been put into a cell
2 where he had been detained throughout his period of
4 He testified, Your Honours, about detainees
5 being taken out for trench-digging on a daily basis,
6 about beatings which were "very frequent or relatively
7 frequent." He said that the names were read out from a
8 list that was brought out from Aleksovski's office. "I
9 did hear beatings rather far away in the other cells.
10 Some people were tortured in the corridor ... we just
11 listened when this was happening, when they were beaten
12 up ... from my cell, two guys were taken out and beaten
13 up." They were Mustafa Hodzic and (redacted). This
14 is "imprinted in my memory because they beat them so
15 fiercely that (redacted) had a serious spinal injury ...
16 still suffering from the consequences ..." (redacted)- told
17 him that "even Zlatko had hit him once or twice as he
18 passed by."
19 Your Honours, another witness -- very well,
20 Your Honours.
21 JUDGE RODRIGUES: I think this is a good time
22 to interrupt our work for today. I should like to
23 remind you that tomorrow we will meet again here not at
24 9.00 a.m. but at 9.30. We must bear this in mind
25 because that means we have an extra half hour to work
1 or to sleep, depending on everybody's preference.
2 The hearing is adjourned.
3 I apologise, Mr. Mikulicic. You wanted to
4 say something?
5 MR. MIKULICIC: Your Honour, I apologise. It
6 is my mistake if I indicated too late that I wanted to
7 take the floor. But in accordance with my client's
8 request, Mr. Aleksovski, I would like to ask whether he
9 could be allowed to go out into the fresh air after he
10 returns from the courtroom today, and tomorrow he has a
11 whole day of hearings, and for his medical condition,
12 could he be allowed to have a walk in the fresh air
13 after he returns from the courtroom to the detention
15 JUDGE RODRIGUES: I think this can be
16 granted, but I would like to ask the registrar,
17 Mr. Marc Dubuisson, to tell us the procedure.
18 THE REGISTRAR: I don't think there will be
19 the least problem in meeting this request.
20 JUDGE RODRIGUES: Therefore, it is granted in
21 the interests of Mr. Aleksovski's health.
22 MR. MIKULICIC: Thank you, Your Honours, for
23 your understanding.
24 JUDGE RODRIGUES: Now we can adjourn until
1 --- Whereupon proceedings adjourned at
2 6.04 p.m., to be reconvened on Tuesday,
3 the 23rd day of March, 1999, at
4 9.30 a.m.