1 Tuesday, 23rd March, 1999
2 (Closing Submissions)
3 (Open session)
4 --- Upon commencing at 9.33 a.m.
5 (The accused entered court)
6 JUDGE RODRIGUES: Good morning, ladies and
7 gentlemen. Can the interpreters hear me?
8 THE INTERPRETER: Yes, Your Honour. Thank
10 JUDGE RODRIGUES: Mr. Marc Dubuisson, can you
11 call the case, please?
12 THE REGISTRAR: IT-95-14/1-T, the Prosecutor
13 versus Zlatko Aleksovski.
14 JUDGE RODRIGUES: Thank you. Mr. Niemann,
15 can we have the appearances, please, for the
17 MR. NIEMANN: Good morning, Your Honours. My
18 name is Niemann, and I appear with my colleague,
19 Mr. Meddegoda, for the Prosecution.
20 JUDGE RODRIGUES: Thank you, Mr. Niemann.
21 Mr. Mikulicic, for the Defence?
22 MR. MIKULICIC: Good morning, Your Honours.
23 I am Goran Mikulicic representing the Defence, together
24 with my colleague, Mr. Joka.
25 JUDGE RODRIGUES: Good morning to
1 Mr. Aleksovski too. Can you hear me well? Are you
2 feeling well today? Did you take some fresh air?
3 THE ACCUSED: Your Honours -- thank you for
4 your interest, Your Honours. In the morning, one feels
5 fresh, but we will see as the day progresses. I must
6 say yesterday was a very difficult day for me, and I
7 found it hard towards the end, but we'll see how things
8 will work out today.
9 JUDGE RODRIGUES: Very well. You may be
11 Mr. Meddegoda, it is up to you now.
12 According to what you said, you need one hour
13 forty-five minutes, but as we already said yesterday,
14 we can make a gift to you of some additional time, if
15 necessary. But you may continue, Mr. Meddegoda.
16 MR. MEDDEGODA: I thank you.
17 Your Honours, if I may start from where I
18 left yesterday recounting the evidence?
19 Witness I, Your Honours, is another detainee
20 who had been wounded by fragmentation bullets whilst
21 digging trenches on the front lines.
22 The next day, despite his wounded hand, an
23 HVO soldier had entered his cell and hit him really
24 hard, as the witness said, "so that I had a bruise, a
25 black eye, for almost two months." The witness had
1 then been questioned by the accused and asked "whether
2 I had hit myself while digging with a shovel or with a
3 pickaxe." Though the witness had informed the accused
4 he had been hit by an HVO soldier "who simply entered
5 the cell," no action had been taken against him.
6 Witness H, Your Honours, remembered that
7 together with HVO soldiers, there were also soldiers
8 wearing HV insignia, soldiers belonging to the Croatian
9 army at the time he was arrested on 15 April, 1993.
10 The witness, Your Honours, testified that the
11 accused described Kaonik as "a military prison and a
12 concentration camp ..." and he was "commander of all
13 the military that were with him in the barracks
15 He also described the shooting that took
16 place on one occasion which resulted in injuries being
17 caused to two detainees when HVO soldiers had prevented
18 them from running for cover.
19 On the same day, Your Honours, in Rovna,
20 where they had been digging trenches, the witness had
21 observed both soldiers of the HVO and the Croatian
22 army. He had, in fact, been hit by a soldier of the
23 Croatian army wearing HVO insignia when he asked for
24 some water to drink.
25 In private session, Your Honours, the witness
1 described the incident involving his brother who
2 escaped from Kaonik camp. After the escape, the
3 witness had been questioned by the accused, after which
4 they had been separated into solitary confinement, and
5 Dzemo, Mario Maric, and Goran Medjugorac had entered
6 his cell and he had been savagely beaten. He said "the
7 first time only Dzemo hit me in the face, then he hit
8 me again with his fist, about three or four times ...
9 he hit me on the stomach ... and I fell to the
10 ground." "I'm not sure whether all of them were
11 beating me, but I could feel the blows coming one after
12 another ... from that I concluded that all three were
13 beating me." "... they went to the other three men
14 who were also placed in solitary cells, and of course
15 they were beaten too and I know this because I could
16 hear their screams ... they returned to my cell again
17 and applied the same system ... they beat me again."
18 At one point in time, the accused had come escorted by
19 the three men, and when "I could not reply and did not
20 know what to say, he left and the three of them
21 continued to beat me." The witness testified, Your
22 Honours, that he still suffers consequences from those
24 He also said, Your Honours, that during the
25 period of his detention, he heard beatings and screams
1 very often and "especially the man from Syria ... was
2 beaten frequently."
3 Referring to the accused's authority, the
4 witness said that Zlatko Aleksovski introduced himself
5 as "... the warden of the entire prison" and from what
6 was apparent to him, "was in control of the military
8 Your Honours, another witness, Edib Zlotrg,
9 recalled the words of an elderly man who had said to
10 him that "killings were quite usual and people ...
11 often got wounded while trench digging."
12 On 25th April, he and a group of prisoners
13 had been to Kratine where they dug trenches until the
14 following morning. At Kratine, the group of detainees
15 had been subjected to verbal abuse and maltreatment,
16 where Miroslav Bralo, alias Cicko, an HVO member,
17 claimed that he had killed about 80 women and
18 children. Bralo had taught them "to make the sign of
19 the cross" and, in fact, had threatened to kill one man
20 who had not been able to make the sign properly. On
21 another occasion, Bralo had got three young men to
22 clean the field with their teeth, with their hands tied
23 behind their backs. Thereafter "he took them to a pond
24 in the vicinity ... and we never saw these three young
25 men again. They were probably slaughtered," lamented
1 the witness.
2 JUDGE RODRIGUES: Mr. Meddegoda, please take
3 your time.
4 MR. MEDDEGODA: I'm sorry.
5 Your Honours, Witness E's testimony
6 corroborates the evidence of other witnesses regarding
7 the beating and torture perpetrated on the eleven Arabs
8 and a man from Travnik in solitary confinement. From
9 the cells in which these detainees were held, "often
10 cries were heard ... They were maltreated and beaten."
11 Going into private session, Your Honours, the
12 witness corroborated the evidence of Witness H
13 regarding the escape of a detainee and the beating and
14 torture that followed. He said, Aleksovski arrived
15 with Dzemo and another soldier and they hit him several
16 times, after which the accused, Dzemo, and the other
17 soldier came to his cell, questioned him, and "hit me
18 several times." The questioning had been done by
19 Aleksovski, and Dzemo and the soldier had hit him with
20 a club and fists while the accused "was just watching,
21 stood there watching," as the witness said.
22 After that the accused had said, "Let us
23 carry on with the interrogation." According to this
24 witness, they had again been subject to beating and
25 torture, being beaten by "Dzemo with his club and this
1 other guy started to beat me again ... I fell into a
2 corner, they continued beating me" until "my nose was
3 broken ... I had bruises, I was black and blue ... I
4 was all bloody, my face was in blood" whilst Zlatko
5 Aleksovski "was standing by the door" giving "signs
6 with his eyes and his head and sort of gave them the
7 go-ahead" for the beatings. Despite these injuries, he
8 had not been taken for medical treatment, and in
9 cross-examination, when questioned as to why he did not
10 complain about this inhuman treatment to the ICRC or
11 the ECMM, the witness replied that "whenever we
12 complained we would end up receiving double" and
13 illustrated his answer with an incident involving "two
14 people from Loncari, two young men who had come back
15 from trench-digging and were wounded, one in the head
16 and the other in the neck, were taken to see a doctor,
17 they never came back and to the present day nobody
18 knows what happened to them ..."
19 Witness J, Your Honours, arrested and
20 detained in Kaonik in April of 1993, testified about
21 the incident involving 30 detainees, including his son,
22 who had been taken to Rovna in the presence of the
23 accused. Unfortunately, Your Honours, his son, who at
24 the time was in the prime of his youth, aged 21, never
25 returned. Later he learnt from another detainee who
1 had been digging trenches with his son that he had been
2 "wounded by a bullet that grazed the back of his
3 head." Some days later, he had been taken to the
4 accused's office where Zarko Petrovic had acknowledged
5 that his son had been wounded. Petrovic had also said,
6 "I just can see to it that you are not sent for
7 trench-digging anymore."
8 Despite this undertaking, Your Honours, the
9 next morning the witness had been taken to Podjele to
10 dig trenches, on which occasion he was subjected to
11 verbal abuse. The witness also referred to another
12 incident on 17 April, 1993, when he saw three Muslim
13 detainees, Saban, Abdulah, and Camil Osmancevic, who
14 had been brought to Kaonik camp the previous night,
15 being called out by the accused, referring to them as
16 "three birds who arrived yesterday." The accused had
17 come to the hangar in the company of the three police
18 officers who had tied their hands and taken them away
19 in a car, and "we have not heard anything about them
20 ever since," the witness said.
21 Testifying before Your Honours, Witness U
22 summarised the conditions in the hangar in one word, as
23 being terrible. Even this word, despite his advanced
24 years, was taken to dig trenches on numerous occasions
25 in hazardous conditions. He had also witnessed a man
1 in the hangar being beaten by some HVO men, as he put
2 it. On another occasion, a young man who had gone with
3 him to fetch water had been beaten. He had also seen
4 the incident narrated by Witness J when the three young
5 birds were taken away.
6 Fuad Kaknjo, Your Honour, was the president
7 of the executive council of the Vitez municipal
8 assembly, in which capacity he was the head of the
9 local government of Vitez. Testifying at length, Your
10 Honours, about the multiparty elections of 1990, he
11 explained the political processes and the
12 socio-political identities of the parties that
13 participated in the elections.
14 The witness referred to the rising tension
15 and the conflicts between the Croats and the Muslims
16 and the various incidents that took place in the area
17 after the takeover of the Vitez municipality building
18 and the police station in June 1992 and the attempts
19 made to calm down the situation.
20 JUDGE RODRIGUES: Excuse me for interrupting,
21 but I think we have to go a little more slowly, because
22 I see in the transcript Fuad Kaknjo, and we know that
23 he was a mechanical engineer, but the French
24 interpretation told me that he was a mechanic. I think
25 a mechanical engineer is different from just a
1 mechanic. So as to avoid subsequent corrections,
2 perhaps we need to go more slowly.
3 As I told you, Mr. Meddegoda, if you don't
4 breathe well, you will not manage to reach the end. If
5 you need more time, we will give it to you.
6 MR. MEDDEGODA: I will, Your Honour.
7 JUDGE RODRIGUES: Thank you very much,
8 Mr. Meddegoda.
9 MR. MEDDEGODA: The witness, Your Honours,
10 then referred to the rising tension and the conflicts
11 between the Croats and the Muslims and the various
12 incidents that took place in the area after the
13 takeover of the Vitez municipality building and the
14 police station in June 1992 and the attempts made to
15 calm down the situation.
16 In November 1992, an attempt had been made by
17 the HVO to force the witness to surrender authority of
18 the executive council. These and other incidents, Your
19 Honours, had preceded the HVO attack on 16 April, 1993
20 leading to his arrest. During the period of the
21 detention in Kaonik, the witness had been subjected to
22 interrogations and beatings. He had been interrogated
23 by the HVO within and outside the camp and had been
24 subjected to psychological torture. He had been
25 interrogated in the intervention squad building within
1 the Kaonik camp by Zarko Petrovic. As a result of the
2 beatings he received, the witness had suffered bruises
3 around his eyes and his kidney.
4 After this interrogation, the witness had
5 been taken back to a cell from where he had overheard a
6 telephone conversation where Svabo had said:
7 "Commander, everything is fine here. I have finished
8 my job."
9 Your Honours, Witness Sivro, a senior
10 official in the local administration of Vitez prior to
11 and during the conflict, said that with the
12 establishment of the HZHB, there developed "a tendency
13 on the part of the Croatian authorities to dominate
14 over the Muslim population." According to the evidence
15 of Mr. Sivro, the Croats began to take over buildings
16 housing government institutions, including "the police
17 station, the post office, the municipality building,
18 and more or less all public institutions that existed
19 at the time, and this happened by force."
20 "The Croatian flag with the checkerboard
21 insignia was also hoisted at public enterprises to
22 indicate their control," he said.
23 He testified about a military parade
24 organised by the HVO in late 1992, during which the
25 soldiers had to take an oath of allegiance to the
1 homeland. The parade commanded by Mario Cerkez had
2 been attended by Dario Kordic, Tihomir Blaskic, and
3 other prominent political and military leaders of the
5 Testifying about an incident which took place
6 on 20 October, 1992 which resulted in the killing of a
7 member of the Muslim army, the witness said that this
8 was the beginning of the deterioration of relations
9 between the Croats and the Muslims. "Business
10 premises, shops and cafes, anything that was Muslim
11 property was destroyed either by explosives or physical
13 He too had been subjected to interrogation by
14 the HVO on more than one occasion, and corroborating
15 the testimony of Fuad Kaknjo, he testified as having
16 seen visible bruises and traces of beatings on the
17 shoulders and cheeks of Kaknjo. Your Honours, I submit
18 that his testimony is consistent with the evidence of
19 other Prosecution witnesses on all material
21 Dzido Osmancevic, Your Honours, said that
22 together with him HVO soldiers arrested a group of
23 persons from his village and took them to Kaonik camp
24 where they were subjected to the routine of search,
25 registration, and incarceration. He said that at times
1 when they returned from trench digging, the accused was
2 present at the second hangar, at the entrance to the
3 second hangar. He would have in his hand the list with
4 our names, and he would ask, "Are they all there?"
5 In private session, the witness described the
6 events following the escape of a detainee which is
7 consistent with and corroborative of the testimony of
8 other witnesses on this point.
9 Hamdo Dautovic, Your Honours, described at
10 length his arrest and the brutality that accompanied
11 his transportation to Kaonik. He had been subjected to
12 severe beatings and cruel interrogation. On one
13 occasion, "I was standing for as long as I could stand
14 while they beat me. Then I sat down when they beat
15 me. At the end, Brane sat on my back and beat me. I
16 was lying on my stomach. There was a microphone of
17 some sort ... in front of my mouth. Then they went on
18 beating me, and I was told to repeat whatever they
19 said. So that's what I did. I repeated what they told
20 me. This was accompanied by blows ..." On another
21 occasion, he had been taken out of the cell and badly
22 beaten up.
23 Your Honours, we also remember that the
24 witness recalled an incident where he, together with
25 three others, were forced to enact a "monodrama," as he
1 called it, where "we had to lie down on our backs and
2 create a cross" and sing as ordered by the
3 guards. "There was a lot of humiliation on that
4 occasion, and Zlatko was amongst them. They talked,
5 chatted and beat us. We were at their mercy, lying
6 down, and this went on," he said.
7 There were no facilities for religious
8 observances except "in my thoughts and in my wishes,
9 but that too without success," the witness said.
10 Upon complaining to the accused about his
11 physical condition, the witness had been taken to the
12 Busovaca health centre, and upon inquiry by the doctor,
13 the accused had said that the witness was suffering
14 from a cold and needed an injection and that nothing
15 else was wrong with him. However, the witness had told
16 the doctor that he had blood in his stools and urine,
17 and the witness went on. Seeing that "I was completely
18 black and blue," the doctor told the warden, "this is
19 animal behaviour," and said that the witness needed
20 treatment, and, in fact, she had said so to the
22 The accused had responded that the witness
23 had been treated and that they had a separate room in
24 the prison for treating the sick, and therefore he did
25 not stay in hospital. When returning to the camp, the
1 witness had pleaded with the accused to "cut down on my
2 portions of food because I cannot eat because of all
3 the beatings," and the accused had assured that "nobody
4 will beat you anymore." However, Your Honours,
5 according to the witness, from then on, "I was beaten
6 more. I received more beatings ... I regretted having
7 complained to the warden because I was receiving more
8 beatings," the witness said.
9 The witness identified a guard in the camp by
10 the name of Medjugorac as the person "who beat me the
11 most and who told me that I would not come out alive
12 from them. He beat me the most, and for me, it was
13 like a death sentence when he would be there because
14 there would always be beatings ... and if anybody
15 wanted to beat any of the prisoners, I was the one."
16 Describing the attitude of the guards, he
17 said, "They would say we had some drinks but we did not
18 have any snacks, so we need some snacks. What do we
19 do?" Then I would be beaten, that would be the
20 snack. "The worst moment would be as the cell was
21 being unlocked and the expectation of being beaten.
22 Then it was the beatings themselves. Ten/twenty blows,
23 kicks, I became immune to the beatings in the end," he
25 In answer to a question as to whether he was
1 aware if any of the guards who beat him were punished
2 by the camp commander, the witness said, "I think they
3 were rewarded by the warden ..."
4 On the day of his release, Hamdo had
5 overheard Goran Medjugorac say to the warden, "Did you
6 not promise me that Dautovic would not leave alive," in
7 response to which the accused had said, "You see, he's
8 going to die anyway, so it is better that he dies in
9 their custody than ours."
10 The witness compared his release from prison
11 "as if I had been born again, going from death to
13 Witness T, Your Honours, was another witness
14 who had suffered severe beating and torture whilst in
15 detention. On the way to Kaonik, he had been beaten
16 with rifle butts, and in Kaonik, they had started
17 torturing him. He had been kicked in the head and
18 around the kidneys with military boots. They also
19 jumped on him. This torture and beating had lasted for
20 about 10 minutes.
21 In the evening, the accused had come into his
22 cell accompanied by Dzemo and Medjugorac. He said
23 that, early on in the day, the accused had cursed him,
24 "swearing at Islam." Inside his cell, the accused had
25 kicked him on the chest, and then on the accused's
1 instructions, Medjugorac had started kicking him and
2 jumping on his body. All along during this beating and
3 torture, the accused had been present. The
4 consequences of this was that "my body was all
5 blackened, marked, and my eyes were black because of
6 the torture." His body had been "bloated as a result
7 of the kicking and the beating ..." and he had been
8 "bleeding through his nose and mouth." He had also
9 noticed blood in his urine. Referring to the long-term
10 consequences of the beatings and torture, the witness
11 said: "... to date I suffer from continuous migraine,
12 I cannot concentrate, and when I am asleep, I cannot
13 breathe properly, kidney pains ... I started suffering
14 from chest pains and heart disorders, and I have
15 reached the point where I have given up trying to find
16 out exactly what is wrong with me."
17 Your Honours, I would now like to deal with
18 the rebuttal evidence led by the Prosecution. It was
19 the Defence case that the detainees who were taken to
20 the Busovaca health centre and ordered treatment and
21 therapy at home were, in fact, sent home.
22 Your Honours, in order to rebut this
23 assertion of the Defence, the Prosecution summoned
24 Witnesses V and W to testify. It was the testimony of
25 Witness V that, whilst in detention, his condition
1 deteriorated, and upon being taken to the health
2 centre, "treatment at home" had been recommended.
3 Ignoring this recommendation, the camp commander had
4 made a gesture "meaning nothing doing." Not only did
5 the accused ignore the doctor's recommendation, the
6 very next day, he also permitted the witness to be
7 taken for hard labour, to dig graves and bury some
8 dead. The following morning, together with other
9 detainees, he was taken to Kula to dig trenches on the
10 front lines of the HVO.
11 Witness W was also in similar circumstances.
12 During the period of his detention, his condition had
13 deteriorated, and he had been taken to the health
14 centre where, after examination, he had been told "to
15 go home and get therapy." Again, ignoring this
16 recommendation, the camp commander had ordered that the
17 witness be detained in a cell. Not only did the
18 accused ignore the doctor's recommendation, the very
19 next day, he too was sent to Kula to dig trenches on
20 the front lines of the HVO in hazardous conditions.
21 Your Honours, amongst the witnesses from the
22 International Community, Charles McLeod, who served
23 with the European Commission Monitoring Mission in the
24 former Yugoslavia, testified inter alia about his visit
25 to Kaonik prison on 10 May, 1995 accompanying Jean
1 Pierre Thebault.
2 The entrance to the camp had been manned by
3 guards in military uniform. At the meeting with the
4 accused, the witness took down notes during most of the
5 conversation. It is the evidence of Mr. McLeod that,
6 during the course of the meeting, the accused had said
7 that he lives in the Kaonik camp and acknowledged his
8 professional skills as a prison officer, having worked
9 in the Zenica prison.
10 Being a professional prison officer, he had
11 understood how a prison should be administered,
12 and "therefore," if I may quote the witness's words,
13 "he was saying he had an understanding of how the
14 Geneva Conventions should be applied to the running of
15 a prison, and he was also using his knowledge as a
16 professional gaoler to ensure that the prison was run
17 along the lines in which he ran it."
18 The accused had also acknowledged the poor
19 conditions in Kaonik camp. At the time of the visit,
20 there had been 79 Muslim prisoners, whilst the numbers
21 had been more in April and early May, with 107
22 prisoners on 16 April and 109 on 9 May, 1993.
23 He had acknowledged that both soldiers and
24 civilians were detained in the camp, and at most times,
25 it is the poor who have neither the affluence nor the
1 influence that are detained, and that none of the
2 Muslims have been charged for violating the law and
3 that, for the most part, the detainees were teachers
4 and engineers.
5 The accused had admitted his knowledge of the
6 Geneva Conventions and admitted that "more or less all
7 the rules of the Geneva Conventions are obeyed in most
8 cases." Admitting his knowledge of detainees being
9 taken out to dig trenches, the accused had acknowledged
10 that the provisions of the Geneva Conventions "do not
11 allow prisoners to be taken out for any work if their
12 lives are in danger," having "been warned about that by
13 the ICRC as well."
14 As testified by Mr. McLeod, the accused had,
15 in fact, admitted his responsibility with regard to the
16 prisoners detained in Kaonik camp. He had also
17 admitted his knowledge of mistreatment of the prisoners
18 by the guards.
19 During the course of the meeting, the accused
20 had, in fact, taken the decision to release a detainee,
21 when the witness queried as to the basis of his
22 detention. The witness said, if I may quote, he
23 "... commented quietly that if it had been me, I would
24 have sent him to Zenica rather than putting him into a
25 cell. Aleksovski said that in that case, since the man
1 was clearly a civilian, we could take him back to
2 Zenica with us. He told the man to take his coat and
3 leave the cell. While we were still talking, they
4 organised a car to take him back to the point where he
5 had been picked up."
6 Your Honours, this is a clear demonstration
7 that the accused not only acknowledges everything that
8 went on in the camp but also exercised command and
9 control over everything that took place within it,
10 including the detainees, the guards, and the soldiers.
11 The Prosecution, Your Honours, also tendered
12 through this witness Exhibit P7, a computer printout of
13 a list of Muslim prisoners being held as at that date
14 given to him by the accused.
15 Describing what he said whilst visiting some
16 cells, the witness said there were detainees "dressed
17 in civilian clothing and appeared to be civilians.
18 There were certainly two soldiers that we met, but they
19 were introduced as Croatian military prisoners who had
20 committed some unspecified crime. They were dressed in
21 uniform," he said.
22 According to Mr. McLeod, despite their
23 request to "talk to the prisoners privately," guards
24 were always present in the cells, and he was quite sure
25 that "had the opportunity been there, then people would
1 have liked to have told us precisely what was going
3 He reiterated his position that the prisoners
4 were "men between 20 and 40 and 50," whilst some were
5 "certainly quite old," "wearing basically civilian
6 clothes of various sorts" except the "couple of
7 Croatian military prisoners who were in uniform."
8 Confirming that there were differences in the
9 treatment afforded to Croatian prisoners as opposed to
10 Muslim prisoners, the witness said there had been a
11 clear difference in the number of people detained in
12 each cell with "more than four and probably less than
13 ten to a cell, whereas there were only two Croatian
14 military prisoners both sharing a cell," and the cells
15 "certainly did not appear to have been designed for
16 the number of people we saw in most of them ..."
17 The Croatian soldiers in the prison "looked
18 fit and healthy and cheerful" with a room "full of what
19 appeared to be their personal possessions" whilst the
20 other detainees "certainly did not appear to have any
21 personal possessions or significant personal
22 possessions with them, so one could see a difference
23 there ..."
24 Your Honours, Mr. Junhov, also a member of
25 the European Community Monitoring Mission, testified
1 that upon receiving information about the existence of
2 Kaonik camp, he, together with a German colleague and
3 an interpreter, had visited Kaonik on 1st April, 1993.
4 Upon arrival, he had met with a person who
5 "introduced himself as being in charge of the prison,"
6 with whom they had visited the prison taking
7 photographs. One of the buildings, he said, by its
8 size and design, appeared to be like a "Swedish army's
9 ordinary munition stores." Entering the building with
10 the cells, the commander described it "as a prison"
11 where "ordinary criminals" are detained. Upon further
12 inquiry, he had found a man in solitary confinement
13 serving a 10-year prison sentence and, in another cell,
14 five persons who had been arrested, according to the
15 commander, because "they are foreigners" without
16 passports or documents. However, the five prisoners
17 described themselves as "missionaries ... supporting
18 the Muslim people in Bosnia from Egypt, Pakistan,
19 Tunisia and Algeria" being detained without any rhyme
20 or reason. Upon inquiry, one of them had responded "I
21 do not know, I have done nothing criminal, I was just
22 arrested and put in here." None of them had been
23 "accused of any crimes."
24 Describing the conditions in this particular
25 camp, he said it was "not acceptable to keep people in
1 such conditions" and there were "very bad standards in
2 all aspects in the prison." The conditions in the
3 cells appeared to be "very dirty" with "a smell that
4 was awful" and the prisoners were "very dirty,
5 unshaven, wearing dirty clothes" without the
6 opportunity for "a shower for the last one month."
7 Being upset by these conditions, he had discussed this
8 with the commander who acknowledged his familiarity
9 with the Geneva Conventions, a copy of which he said
10 "was on his desk." Expressing his opinion to the
11 commander, Mr. Junhov had said that "the conditions in
12 the prison were not in accordance with the
14 JUDGE RODRIGUES: Mr. Meddegoda, excuse me
15 for interrupting you. I wanted to ask you how much
16 more time you need.
17 MR. MEDDEGODA: Your Honours, I should be --
18 I was hoping to finish by the first break, which should
19 be taken by about 10.45, so I should be able to finish
20 around 10.45 or shortly thereafter.
21 JUDGE RODRIGUES: You may continue then. I
23 MR. MEDDEGODA: Testifying further, Your
24 Honours, Mr. Junhov said that Muslim people were
25 detained for "no reason at all, just as some kind of
1 bargain chips or something to have to exchange for
2 something else."
3 During his mission, he claimed to have seen
4 HOS soldiers in black uniform belonging to Croatian
5 military units other than the HVO in "different
6 locations throughout Central Bosnia" and whenever they
7 saw these HOS units "You can bet there will be
8 trouble," he said. This was something that always
9 proved to be true.
10 In cross-examination, referring to the
11 commander's control of the camp, the witness said it
12 was his "impression ... when you ... talk to him, and
13 his way of behaviour and so on ... there was no doubt
14 that he was in charge - he was responsible for at least
15 that building, and I had the opinion that he was
16 responsible for the whole area."
17 It was also his consistent position that the
18 attire worn by the commander and guards was similar to
19 what was being worn by Croatian soldiers all over
21 Without dwelling at length, Your Honours, on
22 Witness K's testimony, Your Honours will recall that he
23 tendered into evidence two maps depicting the front
24 lines held by the HVO and the army of
25 Bosnia-Herzegovina. It was his testimony that the HVO
1 and the army of Bosnia-Herzegovina had trenches right
2 along the front lines. The soldiers of the BH army had
3 dug their own trenches and nobody other than soldiers
4 had been used for this purpose. However, as far as the
5 digging of trenches by the HVO was concerned, he had
6 heard through reports from the commanders on the ground
7 that in addition to soldiers, civilians held captive
8 under HVO control were also employed to dig trenches.
9 He had also heard, again from reports, that civilians
10 were being used as human shields by the HVO.
11 Daniel Damon, a freelance journalist for Sky
12 News, testifying before Your Honours' Tribunal, said
13 that whilst visiting Tomislavgrad in Bosnia during the
14 period of autumn 1992, he had sent "plenty of Croatian
15 troops ... troops of the Croatian forces, and it was a
16 base for the Croatian forces going in and out of
17 Bosnia ... and it was also an important police point
18 for the Croatian authorities on the border and inside
19 Bosnia." He said that it was the assumption of "most
20 if not all journalists that the forces inside Bosnia
21 wearing the Croatian insignia were from both sides of
22 the Bosnian-Croatian border ... It seemed to be
23 obvious from both the political background and the
24 logistical background that these troops were - some of
25 them local Bosnian Croats and some of them Croats from
1 inside Croatia." Citing a clear example, he claimed
2 having seen " ... a vehicle with HV plates and
3 troops ... as opposed to an HVO plate, just inside the
4 border on its way to Tomislavgrad." He said that they
5 had not taken much notice of the distinction of HV and
6 HVO troops because for them " ... troops wearing HV and
7 HVO insignia ... were the same."
8 He too described the conditions in Kaonik as
9 "inhuman," with the prisoners have no access to water
10 and looking very dirty and "from what I was told by the
11 prisoners, they were not being treated well," the
12 witness testified.
13 Your Honours, I will now deal with the
14 testimony of Professor Bianchini. Prosecution Exhibit
15 P36, Your Honours, was very exhaustive of the witness's
16 credentials and expertise and speaks for itself. His
17 evidence Your Honours, went virtually unchallenged, and
18 for that reason I would urge Your Honours to act on
19 that evidence.
20 Commencing his testimony with the political
21 composition of the Socialist Federal Republic of
22 Yugoslavia, he went on to deal with, inter alia, the
23 impact of the 1st and 2nd World Wars on the former
24 Yugoslavia, Tito's ascendancy to power and the
25 different constitutional models of Tito's Yugoslavia,
1 the factors that led to the break-up of the former
2 Yugoslavia, the ascendancy of the present political
3 leadership in the different republics, the plebiscites
4 in the different republics, and the declarations of
5 independence, the structure of the armed forces prior
6 to and post 1991, the ethnic composition, and the
7 emergence of political parties. He then went on to
8 deal with the political and military structures of
9 Bosnia and Herzegovina and the Republic of Croatia and
10 the relationship between the Republic of Croatia and
11 the HDZ in Croatia on the one hand and Croatia and the
12 Bosnian Croats, the HZ-HB and the HVO, on the other.
13 It was Professor Bianchini's evidence that Croatia gave
14 political, military, and economic support to the
15 Bosnian Croats, supplying them with finances, weapons,
16 ammunition, and personnel, and he tendered documentary
17 evidence in support thereof.
18 The Prosecution would also strongly urge Your
19 Honours to consider the evidence of Witness X whose
20 testimony in the Blaskic trial has been admitted into
21 evidence in this trial. It was only very recently that
22 the Prosecution apprised the Trial Chamber of the value
23 of this evidence and its relevancy in establishing
24 conclusively, inter alia, Croatia's policy towards
25 Bosnia-Herzegovina, Croatia's involvement in the war in
1 Bosnia and Herzegovina, and in rebutting the testimony
2 of Admiral Domazet. Therefore, Your Honours,
3 Witness X's evidence regarding Croatian assistance to
4 and control of the HVO during the war provides support
5 to the Prosecution's contention that there was an
6 international armed conflict in the Busovaca area
7 during the period relevant to this indictment and that
8 the crimes committed in Kaonik camp were linked to this
9 armed conflict.
10 The record before this Trial Chamber is
11 replete with evidence that the government of Croatia
12 assisted, supplied, and often controlled the operations
13 of the HVO in its operations against the armed forces
14 of Bosnia and Herzegovina.
15 In May 1992, the Croatian army assigned HVO
16 Brigadier Zarko Tole the task of organising the defence
17 of Central Bosnia, which included the towns of Busovaca
18 and Vitez. During the same month, the Croatian army
19 began organising the training of HVO units in
20 Herceg-Bosna. By July 1992, Croatian army units were
21 stationed inside Bosnia and Herzegovina in order to
22 protect the "territorial integrity and security of the
23 Republic of Croatia." Admiral Domazet, testifying in
24 the Blaskic trial, acknowledged that HV units were
25 present in Bosnia and Herzegovina beginning in 1992.
1 Indeed, Croatian army officers often
2 commanded Bosnian Croat units and Croatian army units
3 often directly participated in actions against Bosnian
4 government forces within the territory of Bosnia and
5 Herzegovina. In May 1993, for example, two brigades of
6 the Croatian army were based in Mostar. Professor
7 Bianchini testified that from 1992 through 1995, the
8 HVO and the army of Croatia were essentially the same
9 army. Thus, for purposes of the application of the
10 grave breaches provisions of Geneva Conventions III and
11 IV, the significant and continuous military support,
12 military action by the armed forces of Croatia in
13 support of the Bosnian Croats against the forces of the
14 Bosnian government on the territory of the latter was
15 sufficient to convert a domestic conflict between the
16 Bosnian Croats and the Bosnian government into an
17 international one.
18 In the present case, the Prosecution has
19 established the accused's direct participation in
20 assaults, abusive interrogations, the denial of
21 adequate medical care, hygiene, and nutrition, the use
22 of civilian detainees and prisoners of wars as human
23 shields and in forced trench-digging work on the front
24 lines and the subjection of the Muslim detainees to
25 beatings and other forms of physical and mental
1 cruelty. In fact, the accused personally beat
2 prisoners on more than one occasion.
3 The accused also ordered the guards to beat
4 the prisoners. By ordering the commission of the
5 crimes referred to in the Statute of this Tribunal, the
6 accused incurred individual criminal liability under
7 Article 7(1).
8 Witnesses described beatings and
9 interrogations directed by the accused following the
10 escape of a prisoner. The accused also led HVO
11 soldiers in assaults on detainees within the prison.
12 Indeed, when the accused did not actively take part in
13 beatings, he often encouraged such behaviour by
14 standing by and laughing and joking while prison guards
15 and soldiers assaulted the detainees. The camp
16 personnel used the words "dance party" to describe the
17 acts of mistreatment, beatings, and various kinds of
19 The accused was also directly involved in
20 sending prisoners to dig trenches near the front
22 By all of this abhorrent conduct, the accused
23 directly contributed to the commission of offences
24 against the prisoners at Kaonik, thereby incurring
25 criminal responsibility under Article 7(1).
1 Your Honours, dealing with superior
2 responsibility, the evidence presented at trial proved
3 that the accused held a superior position during the
4 time he oversaw Kaonik prison. The accused admitted
5 that Kaonik was the military prison for all of Central
7 Most of the personnel working at Kaonik were
8 dressed as ordinary soldiers and some of them wore the
9 HVO insignia. The entrance to the prison complex was
10 guarded by soldiers and military policemen. The
11 accused's former civilian colleagues in the Ministry of
12 Justice considered Kaonik to be under military
13 authority. "... it was a new prison, a small facility
14 adapted from military barracks, which is what it was
15 before." The accused told his former supervisor that
16 he was leaving to be the warden of the military prison
17 in Kaonik.
18 Moreover, Your Honours, according to Blazenka
19 Vujica, who served as the accused's secretary at the
20 prison, Kaonik was a military prison. Ms. Vujica was a
21 member of the military police, and that institution
22 assigned her to be the accused's secretary at Kaonik.
23 The accused's primary role was to oversee the
24 organisation and functioning of the military prison.
25 She testified that some prisoners were incarcerated in
1 Kaonik on the orders of the district military court in
2 Travnik. Others were serving punishments upon the
3 orders of their commanders. When the accused issued
4 documents, he stamped them with a seal issued by the
5 Croatian armed forces.
6 Ms. Vujica testified that during the armed
7 conflict, many civilian institutions ceased to
8 function, and the army assumed the responsibility for
9 providing food, clothing, et cetera. During the period
10 she worked for the accused at Kaonik, Muslim civilians
11 were detained in a building called "the district
12 military prison." The civilians were brought to the
13 prison by the military police and the HVO army. The
14 accused was responsible for all prisoners incarcerated
15 at Kaonik regardless of their classification or status.
16 Thus the evidence presented at trial proves
17 beyond a reasonable doubt that the accused was part of
18 the HVO chain of command. He executed orders that he
19 received from his superiors and issued orders to his
20 HVO subordinates. Therefore, for the purposes of the
21 accused's superior responsibility for the offences
22 charged in the indictment under Article 7(3), he was an
23 integral link in the military chain of command
24 responsible for the Kaonik prison.
25 The evidence shows that the accused enjoyed
1 sufficient power to take reasonable measures to deter
2 the commission of offences at the Kaonik camp and to
3 punish the perpetrators. As commander of the Kaonik
4 prison, the accused exercised a specific mandate which
5 supported the Croatian war effort. According to the
6 accused's own witnesses, he oversaw the day-to-day
7 operation of the prison, carried out orders from above,
8 and issued orders to his subordinates.
9 It is my submission that the Prosecution has
10 presented ample evidence at trial to prove that the
11 accused was the commander of the Kaonik prison, that he
12 exercised power and authority over the camp officials
13 who served under him, including the power to control
14 the actions of subordinates and to punish them for
16 Your Honours, the accused's own admissions
17 serve as the best evidence of his position of
18 authority. Habitually, he introduced himself to new
19 arrivals at Kaonik as the commander of the prison.
20 Witness O testified how, after he introduced himself,
21 the accused cynically reassured the detainees that they
22 had nothing to be afraid of, that they were safe. The
23 following day, 15 men in his group were taken out to
24 serve as human shields for the HVO forces. The accused
25 told another group of new prisoners that "I am the
1 director of Kaonik prison, and you are now my
2 responsibility." Indeed, the accused had the power to
3 release Muslim civilians from prison.
4 The accused's secretary acknowledged that he
5 commanded the prison: " ... we worked at the orders of
6 Mr. Aleksovski, so there were no problems." Indeed,
7 the prison guards clearly respected his authority.
8 At trial, witness Meho Sivro described his
9 first moments in the camp: " ... this soldier who was
10 shouting at us, he said like this: 'Whoever moves,
11 don't you dare move, because our commander is here.
12 You have to be quiet.'"
13 Again, the accused's secretary described his
14 command authority over the other prison personnel. The
15 shift commanders were not allowed to make any
16 instructions on their own. They were to receive
17 instructions from the warden. When unknown persons
18 requested permission to enter the camp, the guards on
19 duty at the front gate would have to consult the
20 accused before permitting the visitor to enter.
21 Whenever new detainees were brought to
22 Kaonik, the personnel would prepare a list with the
23 names of the new arrivals pursuant to the instructions
24 of the accused. When a European Community Monitoring
25 Mission visited the camp, the accused provided the ECMM
1 representative with a full list of the detainees
2 imprisoned there. At the bottom of the list were the
3 words "manager of district military prison" and the
4 accused's name.
5 When Kaonik prisoners were needed for forced
6 labour on the front lines, the prison guards would
7 obtain a list of names from the accused's office, and
8 the prisoners who were on the list would be called out
9 for trench digging that day. Sometimes the accused
10 would stand by and observe that the guards carried out
11 this task properly. On other occasions, the accused
12 would maintain the list " ... and he would simply read
13 five, ten men, how many were needed, and thus they
14 would go." Periodically the accused would be present
15 when the detainees returned to Kaonik from
16 trench-digging and he would ask the guards if the
17 prisoners were all there. On some occasions, some of
18 the prisoners did not come back.
19 Indeed, the evidence presented by the
20 Prosecution demonstrated that the accused used his
21 command authority and power to the mistreatment of
22 prisoners. On one occasion, the accused ordered a
23 guard named Zarko to beat Witness L. On another, the
24 accused ordered a guard name Medugorac to beat
25 Witness T. On both occasions, the prison guards
1 immediately followed the accused's orders. Another
2 time, the accused led a group of HVO soldiers into
3 Witness M's cell so that the soldiers could beat
4 Witness M and his cellmate.
5 The accused asserted his authority over the
6 prison in many different aspects of prison life. For
7 example, the accused could excuse prisoners from their
8 trench-digging assignments.
9 Moreover, when a delegation from the ECMM
10 visited Kaonik prison on 1 April, 1993, they were
11 received by a man who introduced himself as the person
12 responsible for the prison. The accused acknowledged
13 that he knew the Geneva Conventions and that he kept a
14 copy of it on his desk.
15 The accused also oversaw the access of
16 detainees to the media. When a television crew came to
17 Kaonik camp to interview prisoners, the accused and his
18 deputy, Marko Krilic, orchestrated the production.
19 While the filming took place, the accused stood two to
20 three metres away laughing and joking. Rather than
21 fulfil his duty as a commander pursuant to the Geneva
22 Conventions, the accused often obstructed compliance
23 with these provisions. When Witness M told the Trial
24 Chamber how the accused delayed his exchange because
25 the accused held some bias against persons from his
1 village, subsequently the accused tried to obstruct the
2 exchange of another prisoner during negotiations with
3 representatives of the ICRC. Just before Witness M was
4 finally released, the accused told him that if he ever
5 returned to Kaonik, he would not leave alive. Indeed,
6 the accused had the power to dramatically control
7 events within the prison because he made the rules for
8 the prison guards who served under him.
9 The evidence presented at trial, Your
10 Honours, therefore proves beyond a reasonable doubt
11 that the accused was the commander of Kaonik prison and
12 that he affirmatively exercised his power and authority
13 over other camp personnel and the prisoners. The
14 evidence also demonstrates that the accused ignored his
15 command duty to adequately instruct his subordinates
16 regarding the proper treatment of prisoners held under
17 his authority.
18 In this case, the evidence shows that, at all
19 relevant times, the accused had executive authority
20 over Kaonik prison. The abuses committed against
21 Muslim detainees in the camp were not just widespread
22 and notorious. The accused himself participated in
23 many of them. Given the information available to him,
24 the accused therefore bore a duty to take all
25 appropriate measures to stop further mistreatment.
1 This duty was even greater given the
2 accused's control over the prison personnel. Indeed,
3 the accused had the power and ability to dramatically
4 control events within the camp because he made the
5 rules of the prison guards who served under him. None
6 of the shift commanders dared to issue instructions on
7 their own. In sum, the accused "regulated life in
9 The accused, Your Honours, had the ability to
10 officiate criminal investigations of prisoner
11 mistreatment. He did so on at least one occasion in
12 February 1993 when two Muslim prisoners were killed.
13 Although the accused consulted with the judge of the
14 district military court in Mostar about these killings,
15 he never mentioned other abuses constantly being
16 perpetrated by HVO soldiers against the detainees.
17 Considering this evidence, Your Honours, it
18 is my submission that the Prosecution has established
19 that the accused bore a duty to the prisoners at
20 Kaonik, that he exercised control over the prison
21 personnel, and that he had the ability to initiate
22 criminal proceedings regarding abuses committed against
23 the detainees. The accused had the ability to control
24 the prison guards, but he failed to do so.
25 Additionally, there is overwhelming direct
1 evidence illustrating that the accused was fully aware
2 that prisoners of war and civilians were brutalised
3 within the prison camp that he commanded, as well as
4 the deplorable conditions under which the detainees
5 lived. "If you return," the accused warned one
6 prisoner upon his release from Kaonik, "you won't get
7 out alive." The Prosecution has also proved beyond
8 reasonable doubt that the accused was aware that HVO
9 soldiers mistreated the civilian detainees.
10 Moreover, the use of these prisoners for
11 labour detachments took place with the knowledge and
12 approval of the accused. On at least one occasion, an
13 ICRC representative warned the accused that the
14 prisoners should not be compelled to perform forced
15 labour, and particularly not near the front lines. The
16 accused would be responsible for any harm that befell
17 the prisoners. Nevertheless, that night, about 20
18 prisoners were sent out to dig trenches.
19 Witness S testified that one day, after
20 several consecutive days of digging, his hands were
21 covered with blisters. When he asked the accused to
22 spare him from digging on that day, the accused simply
23 looked at his hands and walked away, and the witness
24 was taken out to dig again. He never received any
25 medical treatment for his blisters.
1 According to Witness R, the accused was
2 present when prisoners were taken out for trench
3 digging detail or used as human shields. He was aware
4 of the fate that awaited some of these prisoners.
5 Indeed, after two Muslim detainees were killed while
6 digging trenches, the accused requested that local
7 physicians determine the exact cause of death.
8 There were occasions on which the accused
9 would request that prison guards transport a detainee
10 to Busovaca for medical attention. When Witness W, who
11 suffered from thrombosis, received a prescription from
12 a physician to obtain therapy at home instead of in the
13 Kaonik prison and Witness W presented the prescription
14 to the accused, the accused glanced at the paper and
15 instructed the guards to move Witness W to another
16 cell. Subsequently, Witness W had to join the trench
17 digging detail.
18 Nor can the accused claim that he was
19 ignorant of proper prison standards. His former
20 secretary testified that "... he knew the rules in
21 penitentiaries ... He had one copy of the house rules
22 from the penitentiary in Zenica and the district prison
23 in Zenica, and I still have it," she said. Pursuant to
24 these regulations, convicts were never asked to work in
25 dangerous circumstances and always had access to
1 medical care, nor could physical force be used as part
2 of the "resocialisation process."
3 Finally, Your Honours, Hamdo Dautovic told
4 the Trial Chamber how he was constantly beaten during
5 his detention at Kaonik. One of the camp guards,
6 Medjugorac, would tell Dautovic that he would not leave
7 the prison alive. On the day of his release to members
8 of ICRC, Medjugorac protested to the accused, "Did you
9 not promise me that Dautovic would not leave alive?"
10 The accused patiently explained to his subordinate his
11 decision to free the prisoner. "You see he is going to
12 die anyway, so it is better that he dies in their
13 custody than ours."
14 Accordingly, for the purpose of liability
15 under Article 7(3), the Prosecution has demonstrated
16 that the accused had actual knowledge of violations of
17 international humanitarian law that were committed
18 against Muslim prisoners whilst he was commander of the
19 Kaonik prison.
20 Your Honours, the Prosecution also presented
21 evidence concerning the accused's direct participation
22 and encouragement of prisoner abuse at Kaonik. The
23 accused's failure to control his actions, as well as
24 the conduct of his subordinates, constituted an illegal
25 disregard for their behaviour and a malicious contempt
1 for the welfare of the detainees at Kaonik.
2 The accused explained to Charles McLeod that
3 Muslim civilians were interned for their own
4 protection. Indeed, during the same conversation, the
5 accused subsequently confessed that his acts and
6 omissions breached his legal duty to the prisoners
7 "... because I know that the Geneva Conventions do not
8 allow prisoners to be taken for any work if their lives
9 are in danger. I have been warned about that by the
10 ICRC as well ..."
11 The testimony of Witness M, Your Honours,
12 describing the accused's conduct during a visit by
13 members of the International Red Cross, illustrates the
14 accused's contemptuous attitude for principles of
15 international humanitarian law. "For a while, I was
16 taking food to this cell, and I saw that the man who
17 was kept there was in a horrible condition, that he had
18 been beaten and mistreated, and I thought it was
19 terrible ... He was beaten up every day, he was
20 abused ... When the International Red Cross came to
21 visit us, they went from cell to cell to see who was
22 there. When they came to cell number 4, Mr. Aleksovski
23 was with this gentleman from the Red Cross and ... when
24 the gentleman from the Red Cross asked why this cell
25 was locked, he said that this was some kind of storage
1 room and that there was no need for them to enter
2 there. There was no need for them to see it."
3 In this case, given his power, control, and
4 authority as commander of Kaonik prison, the accused
5 could have issued orders prohibiting the mistreatment
6 of the prisoners. Alternatively, he could have
7 punished those subordinates who committed abuses. At a
8 minimum, the accused could have reported the excesses
9 to the district military court.
10 Nor does the suggestion by several Defence
11 witnesses that the wartime conditions in and around
12 Busovaca prevented the accused from providing better
13 conditions for the Kaonik detainees, find support in
14 international humanitarian law. The jurisprudence from
15 International Tribunals clearly state that it is
16 particularly during wartime, when innocent persons are
17 often exposed to terrible suffering, that individuals
18 must exercise all due care to protect the most
19 fundamental human rights.
20 The fact that the accused in this case did
21 not directly order all of the crimes committed against
22 the detainees in Kaonik does not absolve him from
23 criminal responsibility in relation to these acts.
24 Mr. Aleksovski's knowing failure to punish those
25 subordinates responsible for this misconduct or
1 otherwise prevent further mistreatment of prisoners
2 provides a basis for liability under international
4 The Prosecution presented evidence to
5 establish that, during the time that the accused was
6 the commander of Kaonik prison, Muslim detainees were
7 repeatedly subjected to inhumane treatment, such as
8 murder, beatings, unsanitary conditions, forced labour,
9 interruption of religious activities, and theft of
10 personal property.
11 The overwhelming evidence of repeated
12 mistreatment and abuse would suffice to infer the
13 intent to damage the physical, mental, and moral
14 integrity of the prisoners at the Kaonik detention
15 facility. Equally obvious is the severe pain,
16 suffering, and injuries that the prisoners endured, as
17 well as the loss of their humanity.
18 These incidents, Your Honours, were
19 manifestly cruel. They project a singular intent and
20 purpose: To inflict horrible pain and suffering on the
21 prisoners in Kaonik. There is simply no other more
22 benign rational to explain this conduct. Furthermore,
23 the Prosecution presented abundant evidence to prove
24 that these incidents and many others like them caused
25 great suffering to the victims in the prison.
1 A number of witnesses also testified as to
2 the serious injuries that they received as a result of
3 mistreatment in the Kaonik prison.
4 Finally, prisoners were also wounded by
5 gunfire and shelling, and some perished while digging
6 trenches around the front line. By placing the
7 detainees in a position of such obvious mortal danger,
8 the personnel of the prison exhibited a wanton and
9 reckless disregard for their safety.
10 This evidence demonstrates that the Muslim
11 detainees at Kaonik suffered serious injury to their
12 bodies and health during the relevant times mentioned
13 in the indictment. Moreover, these injuries were
14 inflected intentionally or with utter disregard for
15 their consequences.
16 During the course of the trial, the
17 Prosecution presented evidence to prove beyond a
18 reasonable doubt that hundreds of Muslim civilians were
19 illegally imprisoned for months at the Kaonik detention
20 facility during 1993. This immoral deprivation of
21 liberty was per se an outrage upon the personal dignity
22 of the detainees. Additionally, these Muslim civilians
23 were incarcerated under filthy, violent, deplorable,
24 and terrible conditions. As mentioned above, it is
25 precisely when persons are imprisoned or interned that
1 the principle of respect for human life, for the human
2 person codified in the Geneva Conventions assumes its
3 full significance.
4 Therefore, Your Honours, it is my submission
5 that imprisoning anyone, even convicted criminals,
6 under such conditions constitutes an assault upon the
7 personal dignity of the detainees.
8 Moreover, Your Honours, forcing prisoners to
9 dig trenches, to serve as human shields, and to part
10 with their personal possessions are other forms of
11 violations of personal dignity. Civilians cannot be
12 subjected to humiliating punishment or work. Indeed,
13 ironically, convicted criminals serving their term in
14 the Zenica civilian penitentiary close to Kaonik were
15 not obligated to perform labour for the war effort
16 because they were protected by law.
17 All of these outrages were perpetrated
18 against the prisoners at Kaonik during the relevant
19 times mentioned in the indictment. This kind of abuse
20 violated "the inherent dignity" of the Muslim
22 Your Honours, the evidence presented at trial
23 demonstrates beyond a reasonable doubt that the accused
24 bears responsibility for the acts alleged in the
25 indictment under both Article 7(1) and 7(3).
1 It is my submission that there is no evidence
2 whatsoever that the accused made any effort either to
3 punish or prevent the crimes perpetrated against the
4 detainees in Kaonik prison. Accordingly, it is my
5 submission that, considering the overwhelming evidence
6 presented by the Prosecution, the Trial Chamber should
7 find the accused guilty of grave breaches of the Geneva
8 Conventions and violations of the laws and customs of
9 war, under both Article 7(1) and 7(3) of the Statute of
10 this Tribunal.
11 Your Honours, in the words of that great
12 jurist Justinian: "Justice is constant and perpetual
13 wish to render to everyone his due. Consider what you
14 think justice requires, not only the rights of the
15 person charged but also the forgotten victims."
16 I thank you, Your Honours.
17 JUDGE RODRIGUES: Thank you, Mr. Meddegoda.
18 You had almost 45 minutes extra or a quarter of an hour
19 less than an hour. We have been working very hard, and
20 I think that we have to make a present to the
21 interpreters as well, so we will have a 25-minute
22 break, which means we will resume work at twenty past
23 eleven. Thank you for your efforts.
24 Mr. Olivier Fourmy is drawing my attention to
25 the fact that perhaps we need a longer break, so we
1 will resume at 11.30 to also give Mr. Aleksovski a
2 chance to have a rest.
3 --- Recess taken at 10.58 a.m.
4 --- On resuming at 11.30 a.m.
5 (The accused entered court)
6 JUDGE RODRIGUES: Mr. Mikulicic, are you
7 ready now? It is your turn. Please begin.
8 MR. MIKULICIC: Thank you, Your Honours. Of
9 course the Defence is ready because it has been
10 preparing for this moment for more than a year, since
11 the trial started.
12 JUDGE RODRIGUES: (No translation)
13 MR. MIKULICIC: Thank you, Your Honours.
14 There is no doubt that the main purpose of
15 this Tribunal and the main purpose of this Trial
16 Chamber is to establish the truth, just as it is the
17 main purpose of all court proceedings in any court of
18 law on our planet to establish the truth, but we come
19 here to a key point: What is, in fact, the truth, and
20 where should we look for it?
21 A philosophical thesis that I hold dear says
22 that the truth, like art, is to be found in the eye of
23 the beholder. In other words, that art is experienced
24 through the personality of the person observing a work
25 of art, and the same applies to the truth.
1 However, thinking over this point as a
2 lawyer, this is something that we cannot accept because
3 it would, in fact, mean that the truth is a subjective
4 comprehension of reality on the part of the person
5 surrounded by that reality. This would apply to
6 events, phenomena, and the experiences of that person.
7 However, I am quite convinced that this standard of
8 philosophy is simply not sufficient to judge and assess
9 events that have become the subject of these
10 proceedings, the subject of the indictment issued by my
11 learned friends, the Prosecutors, and finally, the
12 crucial issue of the guilt of my client,
13 Mr. Aleksovski, who is, in fact, on trial here.
14 Therefore, it is the submission of the
15 Defence, and with all due respect our proposal to this
16 Trial Chamber, that the Trial Chamber should be guided
17 primarily by objectively-established facts, that is,
18 the facts that can represent the truth in everybody's
19 eye and not just in the eye of the beholder because it
20 is well-known that an observer or a witness is limited
21 in his knowledge, in fact, he is even handicapped as a
22 factor of his various characteristics and properties,
23 such as, for instance, his age, his sex, his education,
24 his temperament, his motivation, his ability to
25 concentrate and the like. Therefore, it is the view of
1 the Defence that the truth about this case must be
2 viewed in a far more complex manner than the manner
3 suggested to us by our learned friends from the
5 In my closing argument, I shall adopt an
6 opposite order, so to speak; that is, I will first
7 refer to matters of fact that my learned friend,
8 Mr. Meddegoda, argued, and then matters of law, as
9 argued by my learned friend, Mr. Niemann, and I will
10 make conclusions regarding the whole proceedings, that
11 means not only the evidence presented by the Defence,
12 at the end of all this, as the final stage of my
13 closing argument.
14 First of all, Your Honours, the Defence
15 assumes, in view of the fact that the exclusive goal of
16 the formation of this Tribunal was to try events that
17 occurred in the territory of the former Yugoslavia,
18 that the Judges of this Tribunal, in preparing for
19 these honourable duties, had the opportunity to get
20 acquainted with certain general cultural, historical,
21 political, and other relevant events which provide a
22 background for all the cases that are being tried in
23 this Tribunal. I am quite confident, Your Honours,
24 that in this highly responsible duty, you must have
25 come to the conclusion that the territory of the former
1 Yugoslavia, and especially the territory of
2 Bosnia-Herzegovina, is something that is quite unique
3 in the world today because of its numerous
4 specificities. The conclusion to be inferred from this
5 is that in Bosnia, nothing is simple; that the methods
6 of analogy and comparison, when addressing events in
7 Bosnia-Herzegovina, simply do not apply. Such methods
8 cannot stand any test.
9 Let me give you an example. In the area of
10 Bosnia-Herzegovina, as we are now focusing on that
11 area, armed conflicts occurred. Virtually every
12 municipality was a case in itself with regard to those
13 armed conflicts. In some places, there were Muslims
14 and Croats fighting the Serbs predominantly, or,
15 rather, the former JNA and the paramilitary Serbian and
16 Montenegrin units. In another municipality, there was
17 a conflict between Muslims and Serbs on the one side
18 and the Croats on the other. In a third, there was a
19 conflict between Croats and Muslims on the one side and
20 Serbs and Muslims on the other. In a third place
21 (sic), in the Cazin Krajina, clashes occurred between
22 the Muslims themselves. So, you see, a theory of a
23 unified Bosnia-Herzegovina, in terms of the
24 establishment of legal standards and any kind of
25 analogy, simply doesn't hold water.
1 For this reason, throughout the proceedings,
2 the Defence has insisted, and I think that we are
3 supported by this Trial Chamber, especially in view of
4 some decisions taken like the one on the 25th of
5 September last year, that the events linked to the
6 liability of my client are being viewed exclusively and
7 only within a limited time frame and a territorial
8 frame provided by the Prosecution without any analogies
9 being made, without any comparisons being made.
10 As I have said already, that nothing in
11 Bosnia is simple, and then there is always the other
12 side of the coin which we think we are observing, let
13 me also say that there is the other side of the coin
14 when it comes to quoting Prosecution witnesses, as has
15 just been done by my learned friend, Mr. Meddegoda.
16 With all due respect, the method used by Mr. Meddegoda
17 to quote statements by Prosecution witnesses reminds me
18 of a method of a cold buffet. I am not trying to be
19 offensive, but it is simply like the situation when you
20 go down for breakfast from your hotel room and you come
21 across a big cold buffet with various dishes on the
22 table; however, your desire determines what you will
23 take. You will take a little of this, a little of
24 that, and you don't really try everything. So I call
25 this a method of a cold buffet. That was the method
1 applied with the Prosecution witnesses.
2 Let us follow a certain order. Vahid
3 Hajdarevic. With regard to this witness, it was not
4 stated that the witness said that he was mistreated by
5 HVO soldiers outside the Kaonik prison and not in the
6 prison, which is relevant.
7 Witness A. It has not been mentioned, though
8 the witness did say this, that he was brought to Kaonik
9 by the HVO military police on the 24th of January,
10 1993, and that at the time he did not see Zlatko
11 Aleksovski but that he saw him only three or four days
12 later when he replaced the commander.
13 It is true that the Prosecution mentions in
14 three places in the indictment that Zlatko Aleksovski,
15 sometime about the 29th of January, arrived in the
16 Kaonik prison. If we know that the first clashes and
17 the first detentions and the bringing in of prisoners
18 to Kaonik occurred on the 24th and the 25th of January,
19 then the conclusion that is self-evident is that when
20 he arrived in Kaonik, Zlatko Aleksovski found a
21 situation such as it was over which he had no
22 influence, and this is a point that I wish to underline
23 as being extremely significant.
24 That witness -- I am still talking about
25 Witness A -- explicitly said that, according to his
1 understanding, Zlatko Aleksovski had no influence over
2 the HVO soldiers and the military policemen who were
3 the prison guards. He also said that in connection
4 with the unfortunate murder of two Bosnian Muslims that
5 occurred on the 7th of February, 1993, an investigation
6 was started. He also said that a physician from
7 Busovaca would come to Kaonik. Most important of all,
8 and which is indicative of his attitude towards Zlatko
9 Aleksovski, he said that after all those war events,
10 which were by no means easy to live through for members
11 of either ethnic groups, the Bosniak Muslims and the
12 Bosnian Croats, he said that Zlatko Aleksovski came to
13 his house, that they had a cup of coffee, that they ate
14 cake, which is indicative of his judgement of Zlatko
15 Aleksovski's behaviour in Kaonik during those
16 unfortunate events.
17 Witness B was brought to Kaonik also by the
18 HVO, the military police, on the 25th of January.
19 According to his own testimony, he had two grenades and
20 a pistol on him. I am drawing your attention to this
21 fact because, through the testimony of a Prosecution
22 witness, it confirms the position of the Defence as to
23 the reason why Bosnian Muslim civilians were detained
24 in the former military barracks in Kaonik. I am
25 referring to their security. I will explain this
1 later, but please bear this in mind, though, of course,
2 I will remind you of this when the time comes.
3 So this witness had on him two grenades and a
4 pistol, according to his own admission. In the case of
5 Witness B, he had a Zolja -- I don't know whether you
6 know what a Zolja is. I'm not a military expert, but
7 it is a weapon used in anti-tank combat, so it's a very
8 powerful weapon. He also said that he was taken by the
9 military police to Kaonik to dig trenches and that they
10 had dug trenches during the daytime, and that if it was
11 dangerous, they would dig at night.
12 Witness F. That witness, according to his
13 own admission, also had a weapon, an automatic pistol
14 called a Skorpio. I remind you again of that question
15 of security as being the reason for detention.
16 However, Witness F, like Witnesses G, O, and S, did not
17 identify Zlatko Aleksovski in this courtroom as the
18 person who was the warden of the military prison in
19 Kaonik at the critical time. This is another
20 illustration of the relevance of the statements made by
21 Prosecution witnesses.
22 Witness L said that he went to see a doctor
23 in Busovaca at his own request, that he was mistreated
24 by members of the military police before he reached
25 Kaonik at a locality called Kace. However, in spite of
1 this, there is no record in medical documentation of
2 him having sustained any injuries.
3 Witness N also spoke about poor conditions in
4 Kaonik, but he said that talking to the Red Cross,
5 which he had on his own, that he made no complaints as
6 regards the poor conditions or any injuries that he may
7 have sustained.
8 Edin Novalic is one of the significant
9 witnesses who, before the unfortunate events in
10 Busovaca municipality, was a very important person. He
11 was the manager of a large economic facility. He mixed
12 in political circles and with people who, in the former
13 Yugoslavia, held certain positions, and after the
14 Republic of Bosnia-Herzegovina gained independence,
15 they again held positions of authority. So he, like
16 Fuad Kaknjo, Bahtija Sivro, also Prosecution witnesses,
17 mixed in circles and with people who held positions
18 linked to the authorities and to decision-making
19 important for that community. Nowhere, never, has any
20 one of those witnesses seen Zlatko Aleksovski, which
21 shows that Zlatko Aleksovski did not participate in any
22 bodies which made any decisions one way or the other,
23 and so he did not participate in decision-making
24 regarding events that were a consequence of the acts
25 mentioned in the indictment because the indictment
1 charges Aleksovski with participating in the planning,
2 instigation, and acts which resulted in the armed
3 conflict in the territory of Busovaca municipality.
4 However, there was no evidence, not a single piece of
5 evidence, to corroborate this allegation in the course
6 of these proceedings.
7 Witness Meho Sivro also stated that he was
8 mistreated by HVO soldiers outside of Kaonik and that
9 he even asked to be returned to Kaonik because he felt
10 safe there, safer than he was on the front lines where
11 he was a member of the labour detachment working on
12 fortifications. Many witnesses who referred to alleged
13 mistreatment in the Kaonik facility said that they
14 personally had not seen such mistreatment. They said
15 they heard sounds. Some of them even said that they
16 thought it was over the radio, over the loudspeaker.
17 It is worth mentioning the example of
18 Witness E, Your Honours, who, in his testimony -- which
19 was not quoted by the Prosecutor but I will do so --
20 said that he gave to a guard in Kaonik 10.000 German
21 marks, which was an enormous sum in those days, and it
22 still is in Bosnia-Herzegovina, to look after them for
23 him because he had that money on him as he was going to
24 purchase material. When he was released from Kaonik,
25 that same guard returned that same sum of money to
1 him. This is also illustrative of many things.
2 Similarly, many detainees working in those
3 labour detachments, were, in fact, mistreated and
4 robbed by HVO soldiers, which just shows that when they
5 came to Kaonik, they were allowed to keep their
6 valuables, watches, and so on.
7 As one of the objective pieces of evidence
8 that I referred to a moment ago, I should like to
9 remind Your Honours of Defence Exhibits D23 and D24
10 which are documents of the International Red Cross,
11 including photographs taken in Kaonik. If you look at
12 those photographs, you will see that the detainees on
13 the photographs are decently dressed, that they are
14 wearing jewellery, gold chains, watches, that you
15 cannot see on any one of them any trace of injury.
16 This is something that the Defence considers to be
17 objective proof because, after all, cameras cannot lie.
18 Witness Fuad Kaknjo is one of the persons who
19 is on the photograph that has been admitted as Exhibit
20 D24 and who was recognised by Defence witness Zeljko
21 Percinlic. Please look at that photograph and you will
22 see that that person is not starved nor is he injured,
23 even though some witnesses claimed that he was injured
24 and that he had bruises on his face.
25 Witness Bahtija Sivro was also one of the
1 more prominent figures in the municipality, and he was
2 the one, when armed conflicts broke out between the
3 Bosnian Muslims and Croats, who tried to intervene. In
4 what way? By calling up the commander of the BH army,
5 Ramiz Dugalic, on the telephone, and telling him that
6 the BH army should cease its offensive operations.
7 Those are the words he used, "offensive operations."
8 Mr. Meddegoda quoted Prosecution witnesses,
9 who said that they had seen Croatian soldiers, in
10 arguing the existence of an international conflict.
11 However, we must understand what the witnesses are
12 talking about. When a witness mentions Croatian
13 soldiers, they are referring to Bosnian Croats in the
14 HVO and not to Croatian citizens from the Republic of
16 So, for example, the quoted witness Daniel
17 Damon, a freelance journalist who was working for Sky
18 Television and who travelled all over Bosnia, said
19 explicitly when asked that never in the territory of
20 Busovaca or Central Bosnia had he seen a single HV
21 soldier, a soldier of the Croatian army, only in
22 Tomislavgrad, which is an area removed from this, much
23 closer to the southern border of the Republic of
24 Croatia, closer to Dalmacija, that only there did he
25 see a bus with licence plates of the Croatian army.
1 The same holds true of Mr. Torbjorn Junhov
2 and Mr. Charles McLeod who were officials of the
3 International Red Cross or members of the European
4 Monitors, when asked said that they had never seen
5 soldiers of the Croatian army in the area of Central
6 Bosnia. That is what they said.
7 However, attention should be drawn to the
8 testimony of Mr. Hamdo Dautovic that my learned friend
9 quoted in a rather significant context.
10 Let us recall the testimony of Hamdo
11 Dautovic. As this was quite some time ago, allow me to
12 remind you of the key points. Witness Hamdo Dautovic
13 was arrested at a checkpoint of the military police of
14 the HVO, and in his car, a large quantity of cigarettes
15 was found. At the time, cigarettes were a rare
16 commodity in Central Bosnia, and these were products
17 for smuggling and black marketeering.
18 According to his statement, Dautovic had
19 purchased these cigarettes, and he tried to smuggle
20 them into the area where he had resided. According to
21 his own admission, he was arrested for the criminal
22 offence of smuggling, which is a criminal offence
23 according to any legislation in the world. He resisted
24 arrest by starting a fight with a military policeman,
25 by jumping out of a speeding car, by trying to snatch a
1 rifle from a military policeman, and when the Defence
2 asked him why, he said "In order to kill them."
3 Of course, when resisting arrest, jumping
4 from a moving car, attempting to seize a rifle,
5 physical force was used, and, of course, on that
6 occasion, Hamdo Dautovic would have received blows as a
7 result of this incident.
8 All this shows that this was a typical case
9 of policing and that Hamdo Dautovic cannot be compared
10 with persons who were brought to Kaonik as interned
11 civilians from Busovaca and the surroundings on two
12 occasions. This was a police arrest. He is in a
13 solitary cell, he said that himself, so that he cannot
14 in any way compare with others. That is one side of
15 the argument.
16 The other is that the Defence believes that
17 his testimony with respect to the mistreatment he was
18 exposed to is absolutely untrustworthy. The Defence
19 does not believe a single word the witness said in this
21 Let me explain. According to his own story,
22 he spent 30 days in Kaonik. Each day within that
23 period, he was allegedly seriously physically
24 mistreated. Even on the last day, when he was released
25 on the 19th of June, 1993, again, he was beaten up.
1 And what happened? Hamdo Dautovic got into a bus. The
2 bus takes him to Zenica, the closest large city under
3 the control of the BH army and inhabited predominantly
4 by Bosniak Muslims. He goes to the hospital there to
5 seek medical treatment. For 30 days, he was
6 continuously physically abused.
7 In the hospital, nothing happens. After his
8 admission to the hospital, he spent the night there
9 because he came in the evening, and in the morning,
10 after being examined, he is discharged and sent home.
11 There is no hospital in the world with a person
12 physically beaten up with numerous injuries, according
13 to his testimony, that would discharge him from the
14 hospital in Zenica in a territory controlled by his own
15 ethnic group. That is simply impossible. To that,
16 Hamdo Dautovic, according to his own statement, was
17 treated by applying lambskins to his body.
18 This testimony indicates a conclusion of the
19 Defence or perhaps a position taken by the Defence, and
20 that is that the Defence considers that the testimonies
21 of the Prosecution witnesses, who said that they were
22 seriously physically maltreated in Kaonik camp, should
23 not be believed.
24 Let me explain why. If we go back to the
25 beginning and what I said when I started my statement,
1 that truth, like art, is in the eyes of the beholder,
2 then you will understand me when I say to you that
3 those witnesses are perhaps telling a subjective truth,
4 what they believe to be true, but I consider that that
5 subjective truth that they are uttering in no way is
6 objectively verified.
7 If I say, Your Honours, for example, that I
8 hit myself and that I have a lot of pain, perhaps that
9 is what I feel, but the level of tolerance of my pain
10 and the threshold of tolerance of somebody else is
11 different, and whether the injury sustained is an
12 injury in the medical sense or not, that is a question
13 that must be objectively verified.
14 What way are we going to do this? The only
15 way that it can be objectively verified, that is to
16 say, an injury to physical integrity, is to have a
17 medical examination performed. The physician must
18 examine the individual in question and must say what
19 injury has been sustained. He must describe the
20 injury. If it is a question of fractures of any kind,
21 then x-rays must be performed, and so on and so forth.
22 Why? Not only are we then confronted with a
23 scientific approach and assessment and evaluation of
24 the fact which is decisive for a ruling in this
25 instance, but that fact later on can be subjected to
1 scrutiny to determine whether it is trustworthy or not
2 by an expert witness, a forensic expert. That is
3 precisely the individual who can tell us what it is all
4 about, that is to say, the degree of the injury,
5 whether it is a light injury, a serious injury, one
6 that can be life threatening perhaps. That is the
7 individual competent, with all his scientific
8 knowledge, to tell us how the injury was incurred and
9 sustained, the mechanism which caused it.
10 Once we have evidence treated in this way, we
11 can say that we have treated it objectively and
12 examined it objectively.
13 I'm quite certain that the legal standards of
14 this Trial Chamber are extremely high without any
15 doubt. However, I will say that a minimum legal
16 standard in criminal procedure in the country where I
17 come, that is to say, from the area of the former
18 Yugoslavia, from Croatia, is the following: You cannot
19 accuse somebody of having inflicted serious bodily
20 injury if the injury has not been verified in the
21 manner that I have described. Similarly, it is not
22 possible, I suppose, to convict somebody of murder
23 without having a dead body.
24 Those then are some legal standards inherent
25 in criminal law which I consider to be absolutely
1 applicable in this case as well because, and this is a
2 point that I think we will all agree upon, here we are
3 applying and we wish to establish individual criminal
4 liability, that of Mr. Aleksovski. As that is so, then
5 we can apply all of the legal standards which have been
6 well founded in the criminal codes of the countries in
8 Witness K, who was mentioned by my learned
9 colleague from the Prosecution, in his testimony told
10 the Court -- he showed the Court two maps, and on those
11 maps, he indicated the positions of the BH army and the
12 positions of the HVO in the area of the Busovaca
13 municipality and further afield in Bosnia-Herzegovina.
14 This piece of evidence is also highly
15 indicative because, with an overview, a scant overview
16 of the indicated positions of the BH army with regard
17 to the Busovaca municipality, which is the subject of
18 this indictment, we can see at superficial glance that
19 that area found itself in a strong encirclement by the
20 BH army, and no paths led out of that encirclement.
21 This fact, as well as the fact that Witness K
22 spoke about, and that is the relationship of forces,
23 the ratio of forces and manpower and human potential of
24 both armies, that is to say, the BH army and the HVO
25 army, was in the ratio of 5:1 or 8:1 to the advantage
1 of the BH army. These facts, this complete
2 encirclement, this visible predominance of the number
3 of soldiers indicates that the Busovaca municipality
4 area was truly and definitely under an encirclement.
5 Therefore, this tells us a great deal about a
6 fact that is quite opposite to the assertions made by
7 the Prosecution, that is to say, that the Bosnian
8 Croats were organised in the HVO army and they
9 unleashed a process of attacking Bosniak Muslims in the
10 Busovaca municipality. That is quite simply, to even a
11 military layman, evident at first glance, that is to
12 say, that somebody who finds himself in an encirclement
13 and who is numerically weaker in a ratio of 5:1 or 8:1
14 will not be capable of attacking.
15 As I say, these are all details, details
16 which the Prosecution witnesses spoke about and which
17 the Prosecution understands in a different light but
18 which I feel to be absolutely relevant, and, Your
19 Honours, you must bear this in mind.
20 Mr. Meddegoda mentioned, in the context of
21 establishing an international armed conflict, the
22 testimony by expert witness Professor Bianchini. I am
23 going to refer to what Professor Bianchini, the expert
24 witness, said later on in my presentation when I come
25 to speak about the key moments which the Defence
1 considers to be important for judgement, and that is the
2 application of law and the international armed
3 conflict; next, the issue of serious breaches of the
4 Geneva Conventions, violations as envisaged by the
5 Statute of this Tribunal in Article 3.
6 Next, when we speak of the international
7 armed conflict, in a way, but not directly as Professor
8 Bianchini discussed the point, I must return to
9 yesterday's closing argument by my learned colleague,
10 Mr. Niemann, who spoke about that point. I must say
11 that I was surprised with regard to some of the
12 assertions made and articulated by my learned colleague
13 with regard to the application of law and certain
15 The thesis of the Prosecution is that Article
16 2 of the Statute of this Tribunal need not necessarily
17 be applied to an international conflict but that it can
18 be applied to an internal conflict as well. In the
19 arguments put forward to support that thesis, our
20 distinguished colleague, the Prosecutor, speaks in the
21 direction of the following, that is, that this Trial
22 Chamber must bear in mind the new trends in
23 articulating this entire issue which were presented in
24 certain decisions taken by this Tribunal.
25 This thesis is untenable in the view of the
1 Defence, and it is untenable for two reasons: The
2 first reason is that this Tribunal applies
3 international customary law, not to speak of the Geneva
4 Conventions and The Hague Protocols, which are a source
5 of law for the Tribunal, but the Tribunal, in addition
6 to these sources, also incontestably applies
7 international customary law.
8 The Secretary-General of the U.N. Security
9 Council indicates in his letter, I think it was the
10 letter of the 3rd of May, 1993 to the Security Council,
11 and he pointed this out when the Statute of this
12 Tribunal was put up for adoption. Therefore, this
13 Tribunal has the authority of applying the legal
14 standards which existed and, I emphasise, are an
15 incontestable part of international customary law.
16 The decisions brought up and indicated by Mr.
17 Niemann are not contested as international -- they are
18 not international customary law. Perhaps they will
19 become so in three, four, five years, but they are not,
20 and that is the first reason.
21 The second reason is that, with this kind of
22 approach, the application of a new development of law
23 would de facto violate the principle which we all know
24 from ancient Roman law, which is one of the basic
25 principles, and that is nullum crimen sine lege, nulla
1 poena sine lege.
2 We cannot apply -- I say we cannot --
3 JUDGE RODRIGUES: Mr. Mikulicic, perhaps you
4 should slow down because I think that our court
5 reporters do not know Latin, so they were not able to
6 catch the phrase that you used.
7 MR. MIKULICIC: Yes, Your Honours. I shall
8 repeat. I said that this thesis is in opposition to
9 the principle of Roman law nullum cremin sine lege,
10 nulla poena sine lege. I am sure that I need not
11 explain the meaning of that phrase because you know it
12 much better than I do myself, but I think that it is a
13 key element within which we must revolve when selecting
14 law principles in this case.
15 As the Blaskic decision, in rejecting the
16 proposal put forward by the Trial Chamber that certain
17 points in the indictment linked to an international
18 armed conflict be refuted -- so the Blaskic decision,
19 and it was Trial Chamber I that took the decision --
20 was that the question of an international conflict was
21 a combined legal and factual issue which must be
22 ascertained during the proceedings. That is what we
23 ascertained and established in the course of these
25 Therefore, it is the position of the Defence,
1 and the Defence's position is quite the opposite to the
2 Prosecution, and that is that Article 2 of the Statute
3 exclusively and only can be applied to an international
4 armed conflict. In that regard, the Defence would like
5 to point out the decision taken in the Tadic case,
6 Trial Chamber I, because that is the sole decision
7 which at this point in time with regard to this
8 question has a foundation in law and is in effect.
9 Furthermore, going back to the closing
10 argument of my distinguished colleague, the Defence
11 must note that some assertions seem to us not to
12 correspond to the situation as it is, and we cannot
13 agree with the statement and assertion that the
14 Prosecution need not necessarily prove but that some
15 things can be intimated. This is something that the
16 Defence cannot agree with and that the Defence
17 considers is not a standard which should be applied by
18 this Honorary Tribunal.
19 Of course, the classification of an armed
20 conflict has nothing to do with the crimes committed.
21 I completely agree on that point with my learned
22 colleague. However, the classification of an armed
23 conflict does have absolute value when the law is
24 applied and when the competencies of the Court come
25 into question. I have in mind this Tribunal as opposed
1 to the competencies of national courts. Of course,
2 there I agree with Mr. Niemann as well, that the Geneva
3 Conventions did not foresee an International Tribunal
4 of this type because it was not in existence.
5 However, the Tribunal by adopting the Statute
6 took on the Geneva Conventions as a source of law and
7 all the other sources that we mentioned, The Hague
8 Protocols and incontestable international customary
9 law. That Tribunal, with the decision that I mentioned
10 a moment ago from the Tadic Appeals Chamber, expressly
11 stated that Article 2 of the Statute can be applied
12 only in events within the frameworks of an
13 international armed conflict.
14 Contrary to the position of the Prosecution,
15 the Defence considers that it is precisely this
16 question, the question of an international armed
17 conflict, that is the essential question and issue for
18 defining a criminal act which is the subject of this
19 trial, because this is not only a legal matter, but it
20 is also a factual matter.
21 Our learned colleague, the Prosecutor, went
22 on to speak about command responsibility and referred
23 to Article 7 of the Statute, and, whether consciously
24 or inadvertently, he said, and I quote: "Zlatko
25 Aleksovski did not have full power or complete
2 Now, does that statement made by our learned
3 colleague mean in a way recognition of certain
4 positions taken by the Defence or not? We shall see in
5 due course, but that is how we have experienced it,
6 either there is authority or there is not any authority
7 or an absence of authority. I agree with the thesis
8 put forward by the Prosecution that command
9 responsibility is not exclusively applicable in
10 military structures but that it can be applied to
11 civilians as well.
12 However, there is a great "but" here, "but"
13 with a capital "B," and that is what category of
14 civilian are we dealing with? What category of
15 civilian can perform a function within a command
17 Let me remind you of some examples from court
18 practice, recent court practice, where we are
19 exclusively dealing with highly positioned civilian
20 officials such as a defence minister, the mayors of
21 towns, governors. Those are individuals who are so
22 high on the hierarchical ladder in the civilian echelons
23 of power and authority, that by virtue of their
24 position and authority, they come under command -- this
25 implies command responsibility.
1 But if we go back to the positions of my
2 defendant, Mr. Aleksovski, and if we go back to the
3 statements made by witnesses in this courtroom, then we
4 shall recall that nobody, none of the witnesses placed
5 Zlatko Aleksovski at any highly ranked civilian post.
6 I have in mind the municipal structures of power and
7 authority and other structures of power and authority
8 making important decisions for the area in which they
9 were made and in which the events took place, the
10 events mentioned in the indictment.
11 On this occasion, Mr. Niemann referred to the
12 case, the U.S.A. against Oswald Pohl. However, the
13 Defence feels that this precedent cannot be applied to
14 the concrete case in point because we are dealing with
15 an event from another environment, from an
16 international armed conflict, and because the protected
17 individuals in the camp commanded by Oswald Pohl had
18 quite a different status than did the individuals who
19 were detained in the Kaonik camp.
20 The Defence maintains, and it will expound
21 this later on, that the Bosniak Muslims who were
22 interned in the Kaonik camp had the position of
23 internees, according to the Second Hague Protocol which
24 is the law applying to that situation and not the
25 position of prisoners according to the Geneva
1 Conventions of 1949, and that is a great difference.
2 The Defence will elaborate and expound on that point
3 later on.
4 The importance and position of my defendant,
5 Mr. Aleksovski -- let me say that the Prosecution tells
6 of the killing of two Bosniak Muslims on the 7th of
7 February, 1993, Nermin Elezovic and Jasmin Sehovic.
8 This was brought up by the Prosecutor. The Prosecution
9 states as follows: "Mr. Aleksovski had all the power
10 because he undertook an investigation against the
11 perpetrators of that criminal act ..."
12 However, the Prosecution forgets a very
13 important situation which is envisaged.
14 JUDGE RODRIGUES: Mr. Mikulicic, I think that
15 if we are going to work until 1.00, it will be a very
16 long period of work. I don't know whether perhaps it
17 would suit you to have a short break of 15 minutes and
18 then we can resume after that. Otherwise, we can
19 finish before 1.00. But I think it would be preferable
20 to have a 15-minute break, and I am saying this so that
21 Mr. Aleksovski can also leave the courtroom.
22 So we are now going to have a 15-minute
24 --- Recess taken at 12.25 p.m.
25 --- On resuming at 12.40 p.m.
1 (The accused entered court)
2 JUDGE RODRIGUES: Mr. Mikulicic, you may
3 continue up to 1.00.
4 MR. MIKULICIC: Thank you, Your Honours.
5 Before I continue with my argument -- and
6 this is a point addressed to the interpreters -- when I
7 mention persons that are interned in the Kaonik camp,
8 would those terms be used, "internment" and
9 "internees," because I consider this to be a key issue
10 that is very important point from the standpoint of
11 law. Not "detainees," not "prisoners," but
13 Thank you. Let me go back to where I
15 We were discussing the tragic event of the
16 7th of February, 1993, when, while engaging in forced
17 labour on the front lines, two Bosniak Muslims were
18 killed, Nermin Elezovic and Jasmin Sehovic. We heard
19 testimony about this, as to how this had happened and
20 where it had happened, so quite clearly outside the
21 Kaonik facility, and we also heard -- and this is
22 something that the Defence has corroborated with
23 exhibits that have been admitted into evidence as
24 D22A and B -- immediately after this tragic event,
25 Mr. Aleksovski reacted by informing the military police
1 about the event. The military police conducted an
2 investigation, a police investigation, and arrested the
3 suspects, and, after that, handed the case over to the
4 military prosecutor's office which, in turn, the
5 military prosecutor's office submitted a request for
6 court proceedings to the competent court. This is a
7 procedure which is prescribed by the National Code on
8 Criminal Procedure.
9 The role of Mr. Aleksovski in this event is
10 the role that every citizen has in the territory of the
11 former Yugoslavia in which the law on criminal
12 procedure is applied. This means that, should any
13 citizen have any knowledge about the commission of a
14 criminal offence, especially of such a grave crime, it
15 is his civil duty to inform the police of the same. In
16 such a situation, the citizen, in this case
17 Mr. Aleksovski as well, has the role of a completely
18 informal reporter of the event. Only when that
19 information about a crime that has been committed
20 reaches the police does the normal part of the
21 procedure begin as stipulated by the law: The police
22 conducts the investigation, it identifies the
23 perpetrator and hands them over to the courts.
24 Therefore, Mr. Aleksovski, in this event, had no other
25 role than that of an honest and conscientious citizen
1 who, on the basis of his own conscience, reported the
2 crime to the competent body for such proceedings, in
3 this case to the military police.
4 I do not know, Your Honours, how this matter
5 is dealt with or regulated in the national legislations
6 of the countries you come from, but I do know that, for
7 instance, the national legislation of the United States
8 of America authorises the citizen to even arrest the
9 perpetrator of a criminal offence, which is known as
10 "civil arrest." Therefore, what Zlatko Aleksovski did
11 is nothing unusual, it is quite customary, at least in
12 the area that Mr. Aleksovski comes from, and that is
13 the area of the former Yugoslavia.
14 Therefore, the act of Zlatko Aleksovski
15 should not be viewed in the way it is viewed by the
16 Prosecution; it should not be seen as indicative of any
17 elements of command responsibility but solely as
18 elements of civil conscientious behaviour.
19 Mr. Aleksovski, of course, is here in this
20 Tribunal charged with very grave offences and, as is
21 appropriate when reviewing such serious cases, I too,
22 in this case, have been giving thought to the question
23 of motive. What was it that prompted the potential
24 perpetrator, in this case Mr. Aleksovski, to commit a
25 criminal offence?
1 The Prosecution has touched upon this issue
2 by saying that it has been clearly proven in the
3 proceedings that Zlatko Aleksovski, and I quote, "was a
4 supporter of the Croatian cause," and the Croatian
5 cause, according to the allegations of the Prosecution,
6 was to ethnically cleanse Central Bosnia in spite of
7 the encirclement, the numerical superiority, et cetera,
8 that we have discussed.
9 Your Honours, if Zlatko Aleksovski is a
10 supporter of the Croatian cause and demonstrates this
11 by being the son of a mixed marriage -- his father was
12 a Macedonian, therefore not a Croat, he married a woman
13 of Serb ethnicity -- he spent most of his life in
14 Zenica surrounded mostly, or in 80 per cent of the
15 cases, by citizens of Muslim ethnicity, that his
16 closest friends were Muslims, I really have to ask
17 myself: Where does the Prosecution find the grounds to
18 allege that Zlatko Aleksovski is a supporter of the
19 Croatian cause? This merely shows that Zlatko
20 Aleksovski was a person without any national or
21 religious prejudices.
22 So much, at this point, as far as motive is
24 Referring to the closing argument of my
25 learned friend, Mr. Niemann, the Defence would like to
1 state the following: We do not believe and feel that
2 it has not been proven that the quoted witnesses spoke
3 about their suffering in a manner that can be
4 objectively applied to the legal standards of this
5 Tribunal. We can understand and we do understand,
6 without any reservation, their bitterness on account of
7 the events in Central Bosnia. These are people who,
8 for various reasons which are far more complex than the
9 reasons that the Prosecution has tried to elucidate,
10 were forced to abandon their homes, places where they
11 had spent their youth, had their property, these were
12 people that have every reason to be bitter; and viewed
13 from this standpoint, their testimony should be
14 understood. I link this to the truth, that is, in the
15 eyes of the beholder; therefore, the subjective truth.
16 In his closing argument, Mr. Niemann
17 frequently referred to the Celebici trial, and he tried
18 to make some comparisons in fact and in law between the
19 Aleksovski trial and the Celebici trial. The Defence
20 is not inclined towards making any such comparisons or
21 drawing any kind of analogy out of reasons of principle
22 already because analogy is not allowed in criminal law,
23 but also because this is a trial that is sub judice,
24 the appeals procedure has not even started in the
25 Celebici case but it has been announced. What the
1 final ruling will be, what the position of the Appeals
2 Chamber of this Tribunal will be, is yet to be seen.
3 Any attempt to make any analogy and to refer to certain
4 determinations, to certain facts which stem from the
5 Celebici trial, is not seen as being trustworthy by the
6 Defence. We feel that such analogy is out of place.
7 It is the submission of the Defence that when
8 selecting legal sources, in addition to The Hague and
9 Geneva Conventions, I repeat, we need to apply, without
10 question, customary law.
11 Professor Bianchini, an expert witness called
12 by the Prosecution to this courtroom with the idea in
13 mind to provide Your Honours with more detailed
14 explanations of the facts in the territory of the
15 former Yugoslavia and specifically in the Republic of
16 Bosnia-Herzegovina, so that through his expert
17 testimony, the state of an international armed conflict
18 should be confirmed in the area covered by the
19 indictment. Ninety or even more per cent of that
20 testimony that we heard in the courtroom presented by
21 Stefano Bianchini is accepted by the Defence. Some
22 things will be disputed by the Defence, but by far the
23 greatest part of that expert testimony is accepted by
24 the Defence as being trustworthy and reliable and based
25 on fact.
1 It is undisputed -- I am referring to the
2 testimony of Professor Stefano Bianchini -- that there
3 is no doubt that in this unfortunate conflict in
4 Bosnia-Herzegovina, in this area of Bosnia-Herzegovina,
5 never in history was there any conflict between the
6 Bosniaks and the Muslims; on the contrary, they were
7 allies. Historically, on the basis of historiography,
8 this conflict was an isolated incident, a blemish on
9 the historical map of events.
10 The cause of the war in the territory of
11 Bosnia-Herzegovina, without any doubt, should be sought
12 in the Serbian hegemony personified in the figure of
13 Slobodan Milosevic who proclaimed, as his ideological
14 basis, the well-known memorandum of the Serbian Academy
15 of Arts and Sciences. That is something discussed by
16 Professor Bianchini and that, in fact, was the cause of
17 all these unfortunate events.
18 As far as the problem that occurred in Bosnia
19 is concerned, allow me to remind you, Your Honours, and
20 to draw your attention to the beginning of those
22 The International Community, from the very
23 first, tried to resolve those relationships -- we are
24 prone to call it "the Bosnian pot" -- by acting as
25 mediators in trying to appease the situation and to
1 find a solution to the inter-ethnic intolerance. This
2 deserves praise, and this is something that all the
3 peoples of the former Yugoslavia craved because,
4 unfortunately, they couldn't come to an agreement
6 How did this go? Let me remind Your Honours
7 of the meeting held in March 1992 in the Konak Villa
8 near Sarajevo, a meeting organised by the
9 representative of the International Community,
10 Mr. Cutiliero, and to which the following were
11 invited: Mr. Boban as a representative of the Croatian
12 people, Mr. Izetbegovic as a represent of the Muslim
13 people, and Mr. Karadzic as a representative of the
14 Serbian people in Bosnia.
15 What was the fundamental conclusion of that
16 meeting held in March 1992, Your Honours? The ethnic
17 division of Bosnia-Herzegovina into a Serbian, Muslim,
18 and Croatian pot.
19 Bearing this in mind, and Prosecutor's
20 Exhibit number 506 corroborates this, it was an ethnic
21 map, bearing this in mind, we can rightly ask
22 ourselves: What, in those days, did members of ethnic
23 groups in the territory of Bosnia-Herzegovina believe,
24 because that is the only solution, as that is what the
25 International Community is telling us, that Bosnia
1 should be divided up? I'm not saying that that was the
2 main cause of the war and the fighting in the territory
3 of Bosnia and Herzegovina, but it is quite certain that
4 that too was one of the causes.
5 I have already said in what respects I agree
6 with Professor Bianchini, that the main cause was the
7 Serbian hegemony.
8 JUDGE RODRIGUES: Mr. Mikulicic, I think we
9 have to stop there for a break, and we will resume work
10 at 2.30.
11 Thank you. Have a good lunch, everyone.
12 --- Luncheon recess taken at 1.02 p.m.
1 --- On resuming at 2.31 p.m.
2 (The accused entered court)
3 JUDGE RODRIGUES: Mr. Mikulicic, you have the
4 floor. We're going to work more or less for one hour,
5 ten minutes, after which we shall have a break. You
6 may continue, Mr. Mikulicic, please.
7 MR. MIKULICIC: Thank you, Your Honours.
8 I'll continue where I left off before the break, which
9 was an interpretation, that is to say, commenting on
10 the expert witness Professor Stefan Bianchini.
11 For an introduction to what I'm going to say
12 next, let me mention that I mentioned the meeting of
13 March 1992 in the Villa Konak near Sarajevo, a meeting
14 organised by the International Community as the
15 monitor, in an attempt to resolve the Bosnian crisis
16 and which, in fact, resulted with a proposal for the
17 ethnic division of Bosnia into a Serbian, Muslim, and
18 Croatian section, and as was shown on the map which was
19 tendered into evidence, and it was P116, Prosecution
21 After that, Professor Bianchini informed us
22 of the fact that the same idea was present in the
23 so-called Vance-Owen Plan, and with this, the fact was
24 highlighted that the International Community at that
25 time attempted to resolve the Bosnian question in the
1 way that Bosnia should be divided among the majority
2 nations living in that country. Later on, that
3 approach was left behind, was given up, and we are
4 witnesses that, after the Dayton Peace Agreements, the
5 International Community took over the thesis of a
6 unified Bosnia.
7 However, the harm that was caused by this
8 kind of clumsy, if I may say so, mentorship of the
9 International Community in 1992, I'm afraid, for a long
10 time will not be able to put right, incorrigible, for a
11 long time to come. Although it is not the principal
12 reason, it is one of the reasons for the war in Bosnia,
13 a policy of this kind.
14 Now, why am I saying this? I'm saying this
15 because I want to show the confrontations that ensued
16 in the Republic of Bosnia-Herzegovina and to remind you
17 of what I said this morning, that conflicts were not
18 simple, and that in Bosnia, everybody fought against
19 everybody in the different parts of Bosnia.
20 Professor Bianchini, in his expert testimony,
21 referred to the book by Croatian General Janko Bobetko,
22 which was published recently in the Republic of
23 Croatia. In the book, the book contains his orders on
24 the deployment of the units of the Croatian army on the
25 territory of the Republic of Bosnia-Herzegovina, of
1 course, with the idea of demonstrating that what we're
2 dealing with was an international armed conflict
3 because the army of the Republic of Croatia, that is to
4 say, one sovereign State, intervened in the area of the
5 Republic of Bosnia-Herzegovina, another sovereign
7 When you assess this evidence, I should like
8 to ask you to bear in mind these key factors: First,
9 all the documents date back to 1992, that is to say,
10 they refer to the period which is outside the
11 frameworks of the incriminations in the indictment that
12 we are discussing in this trial.
13 Second, all the documents refer to the
14 activities of the Croatian army in the area of
15 Herzegovina and the border region of the southern
16 battlefield of the Republic of Croatia and Posavina,
17 this border area of the Slovenian front.
18 Third, to a direct question, Professor
19 Bianchini answered the following when directly asked:
20 That the enemy mentioned in these military orders is
21 the Yugoslav People's Army, that is to say, the JNA,
22 that is to say, the Serbian and Montenegrin
23 paramilitary formations.
24 What does that mean? That means that the
25 units of the Croatian army in the border regions of the
1 Republic of Bosnia-Herzegovina were not fighting
2 against the Muslim units or against the Muslim
3 population, but together with the units of the Republic
4 of Bosnia-Herzegovina, they were fighting against an
5 enemy, an aggressor, that is to say, the former
6 Yugoslav People's Army, that is to say, the Serbian and
7 Montenegrin paramilitary formations.
8 Also, Professor Bianchini, when directly
9 asked, answered the following: He said that at the
10 critical time, no conflicts between the Bosniak Muslims
11 and Croats existed. Therefore, this presence of the
12 units of the Croatian army in the border regions of the
13 Republic of Bosnia-Herzegovina in no way whatsoever can
14 be linked with the events in Central Bosnia. First,
15 because they took place at quite a different time;
16 second, because they took place in quite a different
18 In order to clarify matters, the presence of
19 the units of the Croatian army on the territory of
20 Bosnia-Herzegovina at that time, Professor Bianchini
21 indicates, upon the insistence of the Defence, on the
22 agreement signed by the presidents of two sovereign
23 States, the Republic of Croatia on the one side and the
24 Republic of Bosnia-Herzegovina on the other,
25 Mr. Tudjman and Mr. Izetbegovic, once again in 1992,
1 which, among others -- that is to say, the agreement of
2 friendship and cooperation which, among others,
3 envisages cooperation on a military level.
4 The other witnesses brought forward by the
5 Prosecution only indirectly spoke about this question,
6 and I should like to indicate the testimony of
7 Mr. Charles McLeod, Junhov Torbjorn who, as European
8 Monitors, that is to say, officials of the
9 International Red Cross, were in a position constantly
10 to be on the terrain and to view the situation from
11 there. They never saw the presence of the Croatian
12 army in Central Bosnia in the Busovaca area.
13 Just in the way that Professor Bianchini, the
14 Prosecution witness, and the Prosecution tried to give
15 a better understanding of relations in the region
16 through him, so did the Defence bring forward an expert
17 witness, he was Professor Bilandzic who, in a very
18 transparent and translucent way, in exact terms,
19 explained the precise reasons for the disintegration of
20 the former Yugoslavia.
21 What, in fact, happened in that regard? I am
22 not going to tire you by bringing up once again the
23 things he said in his testimony. I should just like to
24 remind you of his basic thesis as an expert in the
25 field, as a historiographer, that, in fact, parallel
1 with the processes of creating Yugoslavia, that is to
2 say, from 1918 onwards, parallel with this integrative
3 process, at the same time, we had a disintegrative
4 process going on.
5 At some points in time, one would be dominant
6 or the other, the balance of scales would tip, but all
7 this was to lead to the end it led to, which, if we
8 look at it from the historiographical standpoint, was
9 the only possible outcome from the situation as it
11 Your Honours, the Defence would now like to
12 comment and refer to several key situations which are
13 the subject of the indictment. I have already said
14 something by way of introduction. Let me just repeat
15 briefly what I said on this occasion.
16 The question that is raised is whether or not
17 Mr. Aleksovski, with relation to the position he held,
18 had the kind of authority and competence, that he could
19 use his authority and competence on the basis of which
20 we conclude his command responsibility. It has not
21 been disputed in this case that at the critical time,
22 Mr. Aleksovski performed the function of warden of the
23 military prison of Kaonik.
24 In a situation of this kind, evidence has
25 shown that Mr. Aleksovski came to the Kaonik facility,
1 which had previously been adapted for the purposes of
2 forming a military prison sometime at the end of
3 January or the beginning of February 1993. This is a
4 fact that the indictment operates with, and the 29th of
5 January is a date that is mentioned as the date when he
6 came to the Kaonik facility.
7 Evidence showed that Mr. Aleksovski was a
8 civilian. He was not a member of the HVO. He was not
9 a member of the military police either. He did not
10 have a rank. He did not have any military functions.
11 This was borne out, both by Prosecution and
12 Defence witnesses. Numerous Prosecution witnesses said
13 that Mr. Aleksovski did not have any authorisation
14 vis-à-vis the soldiers of the military police, who were
15 the guards in the facility and who were located not
16 very far from the prison in a separate building next to
17 the entrance itself.
18 The question arises as to what kind of
19 competence and authorisation Mr. Aleksovski had in the
20 military prison of Kaonik. It is not disputed,
21 therefore, that he was a civilian and that the guards
22 were military personnel, military policemen. Both
23 theoretically and practically, it is rather dubious
24 whether a civilian can issue orders to military men.
25 The Defence maintains that Zlatko Aleksovski,
1 in performing the function of warden of the prison,
2 only had exclusively administrative powers and
3 authorisation to have contacts with the representatives
4 of international organisations which visited the Kaonik
5 facility, the Red Cross, the European Monitors, the
6 members of some other civic or humanitarian
7 associations. From that authorisation that he had, we
8 cannot draw the conclusion that that authorisation
9 represents the essence of his command responsibility.
10 For us to be able to see whether the command
11 responsibility exists or not with regard to the
12 military police in the person of Mr. Aleksovski, my
13 client, we must understand one thing, and that is that
14 the military police was a formation which had its own
15 commander, and the commander, according to military
16 hierarchy, once again had his superior. Nobody outside
17 that structure of the military police, that is to say,
18 the army, had the authorisation to issue orders to
19 soldiers in the sense that within full scope he was
20 able to use his command responsibility. When I say
21 that, I mean the following, that is to say, the
22 possibility of control over the execution of an order
23 and sanctions if orders were not carried out.
24 If these two components are lacking, then,
25 Your Honours, there is no question of command
1 responsibility. That would be command responsibility
2 of a declarative nature and not of an essential
3 nature. It is important to note that Mr. Aleksovski,
4 and this was borne out by many witnesses, did not have
5 the authorisation to punish military policemen if they
6 failed to obey or if they failed in their conduct in
7 any way or for anything else.
8 The Defence does not claim that the question
9 of command responsibility should exclusively be viewed
10 within the context of a military organisation; the
11 Defence allows for the possibility of a civilian
12 individual also coming under the notion of command
13 responsibility. But, Your Honours, only in exceptional
14 cases and only with regard to that civilian who is
15 ranked sufficiently high up on the hierarchy of power
16 and authority so that through the force of his position
17 he is able to issue binding orders to military
19 In the structure of today's society as we
20 know it, this would be, for example, Defence Ministers
21 who, in democratic systems, are civilians. Another
22 example would be the governors of individual regions,
23 perhaps even mayors, but, in any case, individuals who,
24 in the civilian hierarchy, are placed extremely high,
25 top level.
1 If you remember the evidence presented before
2 you, not a single piece of evidence leads us to
3 conclude that Mr. Aleksovski performed any type of high
4 civilian post of this kind. He was not a member even
5 of the municipal authorities of the small town of
6 Busovaca, let alone any other top-level civilian
7 political body. Similarly, Mr. Aleksovski was not a
8 member of any negotiating commissions, expert bodies
9 for exchange for detainees or internees.
10 Mr. Aleksovski never was seen by any of the witnesses
11 at any single meeting of civilian individuals
12 discussing important topics, and we say this with full
13 responsibility when we say that the question of command
14 responsibility of a civilian in this concrete case
15 cannot be implied as being embodied in Mr. Aleksovski.
16 Therefore, what remains for us? The fact
17 remains that as the warden of a military prison,
18 Mr. Aleksovski could have been in charge of
19 administrative affairs, that is to say, which guard
20 will do what shift or how many meals will be served per
21 day for the needs of the prisoners or internees, how
22 many meals a day should be cooked, or to decide other
23 matters related to the functioning of the prison itself
24 in this purely administrative sense of governing the
1 True authorisation, as to issuing permits,
2 for example, allowing access to Kaonik for the interned
3 individuals or dismissing, releasing them, or
4 prisoners, permits for this, in the form of
5 disciplinary action or sanctions, Mr. Aleksovski did
6 not have authorisation of that kind. This was borne
7 out by the president of the municipal district court in
8 Travnik who, in his testimony, explained to us the
9 relationship towards Zlatko Aleksovski and Zlatko
10 Aleksovski's relationship towards other relevant bodies
11 of the powers that be at the time. However, what
12 Mr. Aleksovski could have done is he could complain
13 about certain excesses that had taken place, he could
14 have reported to the competent bodies conduct which was
15 against the law, and that is what he, in fact, did.
16 Let us go back to the case of Sehovic and
17 Elezovic, that killing, and let me remind you of the
18 documented evidence which the Defence presented as
19 Defence Exhibits 21 A, B, and C, and also other
20 substantiated evidence, D25 and D26, Defence Exhibits
21 25 and 26, and they are written documents which
22 Mr. Aleksovski sent to the military district court in
23 Travnik, that is to say, to the commander of the
24 military units, for him to react with regard to conduct
25 on the part of the military policemen, contrary to the
1 law, who resorted to the use of force -- who entered
2 forcibly the prison without having a permit to do so.
3 I should like Your Honours to recall
4 Mr. Junhov's evidence. He wanted to visit the Kaonik
5 facility and asked permission to do so, and permission
6 for him to do so was issued by the police, not by
7 Mr. Zlatko Aleksovski, because Mr. Zlatko Aleksovski
8 was not authorised to issue a permit allowing
9 individuals to visit the prison.
10 This is just giving you a rough idea of the
11 competences that he had in view of his position.
12 I should also like to remind you, Your
13 Honours, that, in this case, a recurring topic is the
14 fact that from the prison, interned Bosniak Muslims
15 were taken out and sent to do forced labour,
16 trench-digging, fortifications, and so on, and that
17 that fact is said to be a crime that Mr. Aleksovski
18 committed, in taking these people out to do this forced
20 In the area of Busovaca, there were two
21 ongoing conflicts, that is to say, the first began at
22 the end of the month, it was a Sunday, the 24th of
23 January, and the second took place in mid January, also
24 in 1993. In these two periods, in the Kaonik facility,
25 the population of Busovaca and the surrounding villages
1 were interned. Who interned these individuals? Who
2 brought them to Busovaca? Who ordered that they be
3 taken there? We have not been able to ascertain that
5 In the course of the hearing, the Prosecution
6 nor the Defence provided any evidence which would
7 answer the question as to who issued the order for
8 individuals to be interned in the Kaonik facility.
9 However, one thing that is certain is that that order
10 was not issued by Zlatko Aleksovski quite simply
11 because he was not in a position to do so. He was not
12 in a position to issue orders of that kind.
13 By saying so, I do not wish to say that
14 Mr. Aleksovski, as an individual who was to take care
15 of administrative matters in the military prison of
16 Kaonik, was, beside his own will, brought into a
17 situation in which he attempted, through his
18 professional involvement, to make it easier, to make
19 the humanitarian situation better, and this situation
20 was not, of course, ideal.
21 I am going to speak later on about the legal
22 foundations for the internment of Bosniak Muslims on
23 that occasion, but I should just like to draw your
24 attention for one moment to questions of command
1 Your Honours, let me remind you of the
2 well-known decision taken by the tribunal for war
3 crimes in Nuremberg in the case of the U.S.A. against
4 Wilhelm von Leeb, it was known as "the high-command
5 case," and it was the touchstone for laying the
6 foundations for the responsibility of a commander, and
7 it lays the groundwork and foundation for
8 responsibility of this kind in the following way: You
9 cannot find a commander guilty for the actions
10 committed by his subordinates without having first
11 determined the responsibility of these individuals. If
12 we were to do so here, it would be to use a standard
13 which is much below the standard of the international
14 law used today. In other words, criminal
15 responsibility of any individual has to be determined
16 on a separate, individual basis.
17 Your Honours, the authorities, that is, the
18 legal sources with respect to military commanders are
19 different from those that concern civilian
20 individuals. We have the national and international
21 basis of the law. So an accused who is not a military
22 person is responsible for those actions in terms of his
23 criminal responsibility which also are provided in the
24 national law. So this would comprise murders,
25 commission of serious bodily injury, rape, et cetera.
1 Such criminal responsibility is not the same as the one
2 provided for by the international law of war, and I
3 believe that this is a perfectly clear distinction.
4 What I am trying to say is that the military
5 standard is much higher than the civilian standard,
6 which is necessary in order to maintain a higher level
7 of discipline and which then affects the superiors in
8 order to maintain the military discipline.
9 Article 7 of the Statute of this Tribunal
10 provides the following: A crime has to have been
11 committed by an individual who is a subordinate. The
12 Statute asks whether the superior person was in a
13 position to control the actions of his subordinate; in
14 other words, whether the -- I think that the provisions
15 about whether the commander had known or had a reason
16 to know I think is perfectly clear. I am trying to
17 point out that the commander has to have a possibility
18 to control the actions of his subordinates, and I
19 repeat "control," and that the actions of the
20 subordinates have to appear within his own chain of
22 Your Honours, from the testimony of both the
23 Prosecution and Defence witnesses, we saw that physical
24 mistreatment, provided that it did happen, occurred
25 outside of the Kaonik facility and was committed by
1 persons who were not under the direct jurisdiction of
2 Mr. Aleksovski, administrative jurisdiction of
3 Mr. Aleksovski. Here he was operating as a civilian,
4 and he reported to the competent authorities to further
5 process the violations which he was aware of; but, Your
6 Honours, Mr. Aleksovski had no authority to undertake
7 any sanctions himself of the persons who had violated
8 discipline, he had no such authority, and this
9 authority does not issue from his duty.
10 I have previously spoken about infliction of
11 serious bodily injury and physical injury and great
12 suffering to the detainees [interpretation error] in
13 Kaonik. The Defence has presented a number of
14 witnesses, including expert witnesses, medical staff
15 from the health centre in Busovaca who have testified
16 here, and we believe that their testimony was truthful
17 and I think that important facts can be gathered from
19 No one from the medical staff during the
20 conflict, the period covered by the indictment, ever
21 provided medical treatment to any seriously injured
22 person who came from Kaonik, and serious injuries would
23 include fractures, serious wounds, and such. Persons
24 who came from Kaonik for medical care in Busovaca
25 complained of chronic diseases, some acute diseases
1 such as severe colds, stomach-ache and such.
2 Your Honours, you have heard that despite
3 assertions in the indictment that the hygienic
4 conditions in Kaonik facility were below the minimum
5 standard, no one from these individuals ever developed
6 any contagious disease, none of the detainees
7 [interpretation error] ever had any disease or
8 complaint which developed from unhygienic conditions.
9 Vesna Bilic, who was director of the health
10 centre and who, by her position, was responsible for
11 the implementation of the hygienic conditions in the
12 entire area, testified that during this war period, no
13 epidemic of any contagious disease was registered in
14 the area or any other disease for that matter which may
15 have been caused by lack of hygiene.
16 The Defence considers this to be an objective
17 fact and that in themselves they invalidate the
18 allegation of poor hygienic conditions. It would have
19 been impossible not to have some effects if the
20 conditions were so poor. Also, had the physical abuse
21 been so bad, some effect, some results, would have had
22 to come from that, and we submit that these simply did
23 not take place.
24 So this short-term and temporary detention
25 which took place on two occasions in Busovaca did not
1 result in any serious decline in health conditions, and
2 this should be taken as standard.
3 JUDGE RODRIGUES: I should like to draw your
4 attention that Mr. Mikulicic said, for the record, that
5 "internee" is the term to be used. I see here
6 "temporary detention." I think that this correction
7 needs to be made at the request of Mr. Mikulicic.
8 Mr. Mikulicic, you may continue. I think
9 that was what you told us; isn't that so?
10 MR. MIKULICIC: Yes, yes. Thank you.
11 I am grateful to the Trial Chamber for this
12 intervention, and I again would like to request to
13 interpret the Croatian word "internirani" with its
14 English or French equivalent, which is "internment."
15 Thank you.
16 So, Your Honours, let me again repeat, we are
17 talking about internees and internment, so let me
18 address that issue right now.
19 Unlike the position of the Prosecution, which
20 somehow notoriously believes that internment of
21 civilians in this critical period was something
22 illegal, the Defence submits that there were sound
23 legal reasons on the basis of international law to do
24 so. The internment of civilians is not prohibited
25 either by the Geneva Conventions or The Hague Protocols
1 or international customary law. Of course, there are
2 certain reservations and certain conventions within
3 which such internment is permissible.
4 In response to this query, let me, Your
5 Honours, remind you of two court cases which have
6 become authorities in this case as well. One of them
7 is Korematsu versus the United States and Hirabayashi
8 versus the United States. It refers to the events from
9 1942 on the west coast of the United States, in
10 California. The local military commander declared, and
11 the context was a war which had been declared between
12 the United States and Japan, and he issued an order
13 ordering that all U.S. citizens who were of Japanese
14 origin who lived in that region were to be taken from
15 their homes and gathered in collection centres, that
16 is, that they should be interned.
17 The reason for this decision was that a
18 successful conduct of warfare also involves a
19 prevention of any potential espionage against the U.S.
21 In the case of Hirabayashi versus the U.S.,
22 the case was not as severe. U.S. citizens of Japanese
23 origin were not taken to the collection centres and
24 taken away from their homes but were placed under
25 curfew. In other words, they were not permitted to
1 leave their residences between 8.00 p.m. and 6.00 a.m.
2 Both Mr. Hirabayashi and Mr. Korematsu have
3 sued in order to challenge the legality of these
4 decisions. The U.S. Congress and the Supreme Court of
5 the United States took positions that they were not
6 discriminated against and that the point of these
7 decisions was its temporary nature for security
9 If we are to view these cases in light of
10 what happened in the Busovaca municipality area and in
11 Kaonik, we can see that they are fully applicable.
12 Moreover, it should be stressed that, at the time when
13 these decisions were taken in the U.S., in the area
14 where these decisions applied, there were no combat
15 operations. The Japanese never reached California, and
16 no combat operations were ever carried out in
17 California, and, Your Honours, we saw what type of
18 combat operations and war operations were conducted in
19 the Busovaca area.
20 Now, Your Honours, you have a situation where
21 military conscripts, who are citizens of
22 Bosnia-Herzegovina and of Muslim ethnic background,
23 are, in fact, staying in an area where the citizens of
24 the Croatian ethnic origin are defending themselves
25 from the attacks by the BH army.
1 Your Honours, I would like to remind you of
2 several examples where I said that certain Prosecution
3 witnesses who had been interned in Kaonik had on them
4 weapons and grenades and even anti-tank weapons. For
5 Croats, the internment of the ethnic Muslims was a
6 matter of security. I think we can agree that it was a
7 temporary internment and short term. In the first
8 case, it lasted between the 25th of January and the 6th
9 of February; in the second instance, from the 16th or
10 17th of April until the end of May, at the latest.
11 We can say that the interned persons, on
12 average, spent up to two weeks in Kaonik. I agree that
13 this too is too long. One day would have been too long
14 under normal circumstances. Your Honours, at that
15 time, in that place, the situation was terrible. You
16 heard from witnesses. There was no place in the
17 Busovaca municipality which had not been hit by a
18 bullet, by a shell. Many civilians were killed by
19 bullets or shells in their own homes.
20 Nobody, not one person among the interned
21 persons was injured or killed in the Kaonik facility.
22 However, guards who guarded them did suffer injuries.
23 One was injured in his genitals; another one was hit by
24 shrapnel in the stomach in Kaonik itself where they
25 were providing security for the facility.
1 What is the point that I'm trying to make?
2 I'm trying to point out that this issue of security as
3 the reason for internment is twofold, and it should be
4 interpreted from two points of view. One is the issue
5 of internment, which is equivalent to the Korematsu and
6 Hirabayashi cases; the second is the internment that
7 coincides with the overall humanitarian situation.
8 Because you will agree that it is better to have
9 freedom of movement curbed and survive than not have
10 any limits to the freedom of movement in the zone of
11 combat operations and then be killed as a result of
12 these combat operations.
13 Finally, Your Honours, you should also bear
14 in mind the fact, which is no less important, that any
15 military units have to take special care of the
16 civilians and forcibly remove them from the area of
17 combat operations, and it is mandated by the Geneva
18 Conventions to do so. When you view this issue in that
19 light, I believe that you will be able to see these
20 events of this unfathomable Bosnia in proper
22 I repeat, however, that we haven't
23 established who had ordered the internment; all we have
24 established is that it was implemented by the military
25 police of the HVO, but, as I said, the legal grounds
1 for this can be very easily explained.
2 Forced labour and the digging of trenches.
3 This is another topic that we come across throughout
4 the proceedings, and again, the a priori position of
5 the Prosecution is that this is prohibited, that this
6 is illegal, that there is nothing to be discussed. The
7 Defence is of the opinion that that is not so.
8 The Hague Protocol 2, which the Defence
9 considers to be the authority in this particular case
10 and which should be observed, says that internees may
11 be used for forced labour on condition that they are
12 working under similar conditions as the local civilian
13 population. I think that I have almost literally
14 quoted this provision of the Hague Protocol.
15 What does this mean? This means that in the
16 relevant period in the territory of Busovaca
17 municipality, the provisions of local national
18 legislation were applied which regulated forced
20 In this context, the Defence tendered into
21 evidence the legislation that was in force at the time
22 and which regulated forced labour. Those are Exhibits
23 D28 and D28A. These are decrees regulating the
24 obligation to work based on national legislation, and
25 it says -- I don't wish to tire you with this -- but
1 basically it says that during war, for the needs of
2 combat operations and other needs of the armed forces,
3 the organisation of work units may be ordered and that
4 that order shall be issued by military officers in the
5 event that the civilian authorities are not
6 operational. Such work units may be organised to
7 perform activities involved in the construction of
8 fortifications, shelters, and other works of importance
9 for defence.
10 Your Honours, that is precisely what happened
11 in the relevant period. Please recall the testimony of
12 the witnesses. Military commanders of the HVO, on
13 certain segments of the front lines, when they felt
14 that they needed to fortify, to dig in, would send
15 military policemen to form such work units, to bring
16 them there, and for those units to carry out those
17 works upon orders and under the command of the military
18 commander in question.
19 The Defence has called witnesses, citizens of
20 Bosnia-Herzegovina of non-Muslim ethnicity, a Serb with
21 BH citizenship, and a Croat with BH citizenship who
22 testified and confirmed that military policemen came to
23 them, ordered them to come with them to the front line
24 where they had to do forced labour. These were
25 persons, men who were fit for military service in terms
1 of age but who, for certain reasons, did not have
2 weapons. Those men had to contribute to the joint
3 defence effort in another way and not with weapons.
4 Similarly, Your Honours, Bosnian Muslim
5 civilians interned in Kaonik were also military
6 conscripts, and there was absolutely no reason why
7 those persons, like the non-internees, should not be
8 used for forced labour, and they were indeed used and
9 under similar conditions as the non-interned
11 The military police participated in the
12 implementation. They were taken to positions where the
13 local commanders gave them orders as to what he should
14 do and where -- mainly, they were digging trenches and
15 so on -- upon which the military police would again
16 take them back from their place of work. Of course, it
17 was dangerous, but it was dangerous in every square
18 centimetre of Busovaca municipality.
19 Remember the testimony of Witness Lukovic who
20 said that it was less dangerous for him to work on the
21 defence line than to be in town, because if you were in
22 town, a shell or grenade would come from somewhere
23 every so often. "Here," he said, "the soldiers took
24 care of us." To illustrate what he said, he added
25 that, in his absence, a shell had entered his flat and
1 hit the room where his grandchildren were.
2 Fortunately, they survived.
3 You see, Your Honours, what can be described
4 as a dangerous spot or a dangerous situation? In the
5 first half of 1993, there was an abundance of dangerous
6 parts. There was hardly a place which was not
8 I'm saying this in order to illustrate that
9 interned Muslims from Kaonik did do forced labour under
10 similar conditions as non-interned civilians in the
11 same area, and they did so pursuant to valid
12 regulations of the national legislation. Therefore, it
13 is the contention of the Defence that, as regards
14 forced labour, there was nothing illegal about it per
16 It is another matter, however, if those
17 Bosniak Muslims were mistreated while doing forced
18 labour; however, as the Defence has already said, those
19 are events absolutely outside the competence of my
20 client, Mr. Aleksovski. Neither did he order them to
21 be taken to such and such a place, because that was
22 done by the military police, nor did he or his staff
23 have any insight or influence on those locations, nor
24 did those events occur within the Kaonik facility where
25 he was present. Therefore, those are simply facts
1 which I appeal to you to bear in mind when passing
2 judgement on this issue.
3 Human shields. Human shields is another
4 issue that we come across throughout these
5 proceedings. Of course, I'm not going, in any sense of
6 the word, to try and justify the use of people for the
7 purpose of protecting military units with their own
8 bodies. That is something abhorrent, and there is
9 absolutely no justification for such acts. What I am
10 claiming, however, with full responsibility is that
11 there were no human shields.
12 If you analyse the statements of witnesses
13 who spoke about human shields, you will come to the
14 conclusion, I hope, the same conclusion as the
15 Defence. What happened, in fact, was the witnesses who
16 claimed that they had been used as human shields gave
17 descriptions in answer to direct questions by the
18 Defence how this was carried out.
19 I don't wish to tire you with a
20 reinterpretation of individual witness testimonies, but
21 let me remind you of the main points. It is a fact
22 that the witnesses described three cases: The villages
23 of Strane, Skradno, and Merdani. In all three cases,
24 in all three of these villages, there were no units of
25 the BH army. There was no firing from those villages.
1 People were, indeed, rounded up by the HVO and brought
2 to the vicinity of those villages, but they were
3 positioned at a distance 500 to 800 metres from the
4 village on two occasions, and on the third occasion,
5 the village could not be seen from their position
6 because the configuration of the terrain is such that
7 the village cannot be seen. Nobody was injured or
8 killed. One bullet was fired, according to the
9 testimony of one witness, and he doesn't know from
11 Now the Defence asks itself the question:
12 Were those really human shields in the sense of the
13 word in which the Prosecutor interprets this phrase?
14 The Defence alleges that they were not. The Defence
15 goes further and wants to say that we accept the
16 possibility that an individual, an irresponsible member
17 of the HVO may have had the idea to use those people as
18 human shields, but it is quite clear that that idea was
19 not consummated, as we lawyers would say, in other
20 words, that no unlawful act occurred and that in this
21 case, we have a classical example of a futile attempt.
22 As I say, they may have had the idea to use
23 them as human shields, but because of the absence of
24 consequences or because of the fact that the attempt
25 was made in relation to an inadequate objective, we
1 cannot consider this as a criminal act but as an
2 attempt that failed. We know that such attempts are
3 not punishable by law. It is the opinion of the
4 Defence that within this legal category, we should view
5 the charge concerning human shields.
6 Finally, allow me to go back to the key issue
7 of this trial. It is the question of an international
8 armed conflict.
9 JUDGE RODRIGUES: Mr. Mikulicic, before going
10 on to the key issue, would you prefer us to have a
11 break? Perhaps that would be a better idea so as not
12 to interrupt the dynamics of your argument.
13 Very well. We shall have a 20-minute break
15 --- Recess taken at 3.37 p.m.
16 --- On resuming at 4.00 p.m.
17 (The accused entered court)
18 JUDGE RODRIGUES: Mr. Mikulicic, you may
19 proceed, and we are listening to you with interest.
20 MR. MIKULICIC: Thank you, Your Honours. I
21 shall continue my presentation and will thereby be
22 concluding my closing remarks.
23 The opinion of the Defence is that one of the
24 key questions, if not the key question, is the question
25 of the international armed conflict. I said something
1 about this in my introduction, and I am going now to
2 add on to what I said.
3 An international armed conflict, according to
4 the definition in the Geneva Conventions of 1949,
5 expressly demands that an armed conflict take place
6 between two or more countries, high-contracting
7 parties. Article 2 of the Statute of this Tribunal, in
8 keeping with the decision made in the Tadic Appeals
9 Chamber, regulates this question, the question of
10 international armed conflict.
11 The Defence considers that, at the critical
12 time in the area covered by the indictment, there is no
13 question of an international armed conflict. The
14 Defence goes even further than that and claims that not
15 even on the rest of the territory, outside Central
16 Bosnia, that is, in the Republic of Bosnia-Herzegovina,
17 that at the critical time there was not a state which
18 could be qualified as an international armed conflict.
19 Similarly, the Defence considers that, in the
20 area covered by the indictment, there was not a state
21 of partial occupation either because "partial
22 occupation," by its very definition, represents a
23 situation -- and it is different to an invasion -- when
24 the hostile enemy territory is placed under the control
25 of the attacking army.
1 For us therefore to fulfil the legal and
2 factual conditions indicating the existence of a state
3 of partial occupation, we would have to prove that the
4 attacking army had taken over the entire or part of the
5 territory of the State of the other high-contracting
6 party, according to the definitions of the Geneva
8 The Defence firmly considers that an
9 international armed conflict quite simply cannot be
10 applicable to the case in point. By saying this, the
11 Defence indicates the application of rights and law,
12 and the Defence indicates that the relevant law for
13 application in the given case is the law of the Second
14 Hague Protocol and not the Geneva 1949 Conventions.
15 In order to understand the mutual
16 relationships existing between two States, the
17 sovereign State of the Republic of Bosnia-Herzegovina,
18 a member of the United Nations, on one side, and the
19 Republic of Croatia, also a sovereign State and a
20 member of the United Nations, on the other side, for
21 which it is considered, according to the indictment,
22 that it is a party in the international conflict, we
23 must view what kind of relationships prevailed at the
24 critical point in time, the relationships that
25 prevailed between these two States.
1 Although I am quite certain that the events
2 are well-known to you, allow me nonetheless briefly to
3 remind you of the following:
4 The Republic of Bosnia-Herzegovina proclaimed
5 its independence and autonomy from the former State of
6 the Socialist Federal Republic of Yugoslavia on the 6th
7 of April, 1992. On the following day, that is to say,
8 the 7th of April, the Republic of Croatia recognised
9 the State of Bosnia-Herzegovina proclaimed in this way.
10 At the end of 1992, on the 28th of November,
11 Charge d'Affaires of the embassy of the Republic of
12 Bosnia-Herzegovina in Zagreb was appointed. He was
13 Mr. Kulenovic.
14 At the end of the year, in December,
15 Dr. Sancevic went to Sarajevo to occupy Sarajevo,
16 passing through the well-known tunnel below the airport
17 runway and gave his accreditations to Mr. Alija
18 Izetbegovic, the President of Bosnia-Herzegovina, as
19 the first foreign diplomat to present his credentials.
20 After that, relations between the Republic of
21 Bosnia-Herzegovina and Croatia, without interruption,
22 evolved at the level of embassies. From that point
23 onwards, the point that I mentioned, from that day,
24 which includes the period of hostilities between the
25 Bosniak Croats and the Bosniak Muslims, not at any
1 single point were these diplomatic relations between
2 the two States severed. Even more, these relations
3 were constantly promoted.
4 In January 1993, in Zagreb, Mrs. Bisera
5 Turkovic was accredited as the ambassador in the
6 Republic of Croatia. The presidents of the two States,
7 Tudjman and Izetbegovic, maintained constant contacts,
8 they exchanged many letters, they took part in many
10 President Izebegovic, in 1993, that is to
11 say, at the time of the most fierce hostilities between
12 the Bosnian Muslims and Bosnian Croats, on several
13 occasions visited the capital of Croatia, had talks
14 there with President Tudjman, had talks with other
15 politicians, and those relations were never severed,
16 not at any point. Quite the contrary. The Croatian
17 parliament, on several occasions, in declarative form,
18 requested that the hostilities be stopped between the
19 Bosniak Muslims and Croats. Efforts were undertaken to
20 stop the hostilities, but events in the area,
21 unfortunately, escaped the political supervision, good
22 wishes, and control.
23 Your Honours, may I remind you of the
24 following: The outbreak of war between two States,
25 which would be in line with an international armed
1 conflict as put forward by the Prosecution, has, as its
2 consequence, the severance of diplomatic and consular
3 relations. Nothing similar occurred in relations
4 between the Republic of Bosnia-Herzegovina and the
5 Republic of Croatia. Furthermore, the outbreak of war
6 has an important influence and effect on various
7 agreements existing between States. They are
8 suspended, placed ad acta, but none of this happened.
9 At the critical time, in fact, what happened was that
10 new agreements were signed which included military and
11 peacetime cooperation.
12 May I now remind you of one fact, according
13 to the Defence, an important decision of Article 2 of
14 the Fourth Geneva Convention. This Article is a very
15 important objective test for the existence of a state
16 of war between two States, and it states:
17 "The citizens of a neutral State, finding
18 themselves on the territory of one warring side,
19 country, and the citizens of a State taking part in the
20 war will not be considered as protected individuals
21 until that State whose citizens they are has regular
22 diplomatic representative offices in the State in which
23 they are located."
24 That means, Your Honours, that one warring
25 side would undertake measures towards the citizens of
1 the other State with which it is at war if those
2 citizens are on its territory.
3 May I also remind you that on the 8th of May,
4 1992, the Republic of Croatia gave shelter to 225.000
5 displaced persons, refugees, from Bosnia-Herzegovina.
6 Of that figure, which is 5 per cent of the population
7 of the Republic of Croatia, 80 per cent were Muslims.
8 Not a single individual was repatriated nor was any
9 individual's property confiscated, whether it be a
10 physical person or legal person, and all this took
11 place in a situation of a state of war between two
12 sovereign States.
13 If this Trial Chamber were to accept the
14 assertions of the Prosecution that in the given case
15 between the Republic of Bosnia-Herzegovina and the
16 Republic of Croatia that it was a question of a war
17 conflict, then it would be a unique example in history
18 whereby two States were warring against each other
19 whereas, at the same time, they had regular diplomatic
20 relations and, at the same time, took care of the
21 refugees from the State with which they were allegedly
22 at war. Something of that kind has not been known in
23 history and something of that kind did not take place.
24 There was no international armed conflict.
25 That being so, allow me to remind you of some
1 of the evidence put forward by the Defence and which
2 the Defence tendered into evidence in the course of the
4 First of all, let me remind you of D7,
5 Defence Exhibit D7. It was an agreement on cooperation
6 and friendship between Bosnia-Herzegovina and Croatia,
7 and it was dated the 21st of July, 1992. This
8 agreement was signed in Zagreb by Presidents Tudjman
9 and Izetbegovic.
10 On the basis of that agreement, it is stated
11 expressly that the HVO is a component part of the armed
12 forces of Bosnia-Herzegovina and that the provisional
13 civilian authority within the HVO, as soon as possible,
14 would align itself with the constitutional and legal
15 order of Bosnia-Herzegovina.
16 Now, why is that stipulated in that
17 particular agreement? It is stipulated because the
18 central authority in the Republic of Bosnia-Herzegovina
19 was, in fact, de facto and de jure, incapacitated for
20 action. The central political authority, power and
21 authority, was placed in Sarajevo, Sarajevo was under
22 fierce Serbian occupation, and the central power and
23 authority was not able to function. For that reason,
24 for life to be able to evolve normally in the area
25 outside Sarajevo, various provisional forms of civilian
1 and military administration were developed which are
2 mentioned in the agreement and for which both
3 presidents agreed upon, that as soon as conditions
4 allow, that is to say, as soon as the central
5 government began functioning, be dovetailed with it.
6 Defence Exhibit D9. The date is the 2nd of
7 April, 1993. The time is the time of the conflict
8 between Bosnian Croats and Muslims in Central Bosnia.
9 Once again, an agreement, it is between Mr. Izetbegovic
10 and Mr. Boban by which, after Mr. Izetbegovic had
11 signed the Vance-Owen Plan, established a joint command
12 of the HVO and the army of Bosnia-Herzegovina, a part
13 of the military formations, which, in certain regions
14 of Bosnia, were conflicting. Document D8 is an appeal
15 by President Tudjman for hostilities between Croats and
16 Muslims in Central Bosnia to cease, and they referred
17 to and hospitality was offered for having a meeting
18 between Izetbegovic, Boban, and Lord Owen in Zagreb as
19 the venue, on the 24th of April, 1993.
20 As I said, throughout this time in Zagreb,
21 the capital of the Republic of Croatia, the Embassy of
22 the Republic of Bosnia-Herzegovina functioned
23 throughout this time.
24 Document D11, Defence Exhibit D11, tendered
25 by the Defence indicates that attached to -- the
1 Embassy of Bosnia-Herzegovina in Zagreb was
2 functioning, and I'm speaking about mid 1993. We saw
3 the functioning of a logistics department of the staff
4 of the supreme command of Bosnia-Herzegovina and on the
5 territory of the State for which the Prosecution
6 maintains was a conflicting party in an international
7 armed conflict.
8 This document indicates that such a conflict
9 at the level of two States did not exist. I ask you
10 once again, Your Honours, have you ever heard of a case
11 in history whereby one country warring with another
12 country would have its supreme command staff
13 headquarters in the country that it was allegedly
14 fighting against? That has never existed.
15 Your Honours, let me remind you of a document
16 which the Defence tendered as exhibits in this
17 proceeding, and I'm referring to Exhibits D29 and D30.
18 These are the documents which the Defence received from
19 the Prosecution, and it is an express request to
20 disclose them as exculpatory material. These documents
21 are confidential in nature and, therefore, they are
22 under seal, and the Defence has undertaken an
23 obligation not to disclose them to the public.
24 I would like to remind you of them, but I
25 believe that it is not necessary to move to a closed
1 session, with your agreement, and let me just refer you
2 to these documents without referring to their contents,
3 and I would urge you to study them carefully. However,
4 I wish to point out that these are very relevant
5 documents and which support the theory of the Defence
6 that the relations between the two States were flowing
7 uninterruptedly, even during the conflict between the
8 Croats and Muslims in Central Bosnia, and they were
9 functioning uninterruptedly, both at the level of
10 consulates and embassies and military.
11 Let me refer you to Dr. Bianchini's testimony
12 who said that any aid, military or humanitarian, that
13 entered Bosnia had to go through Croatia, every last
14 piece of weapon, bullet, et cetera. So I ask you what
15 country would have offered this type of assistance if
16 it was in a state of armed conflict? No such case
17 exists in history.
18 Let me point out document D13, which may be
19 one of the most relevant documents. It is dated 21
20 April, 1993, only five days after Ahmici, that is, at
21 the time of the escalation of conflict in Central
22 Bosnia with a number of casualties and destruction.
23 This document was drafted by Mr. Muhamed
24 Sacirbey, who was the Bosnian ambassador to the U.N.
25 I'm not going to quote the entire document, but let me
1 point out the crucial paragraphs there. In this
2 document, which was sent to the Security Council of the
3 U.N., he describes the Bosnian Croat conflict in
4 Central Bosnia as a conflict of the local leaders due
5 to the shortages of humanitarian aid in the area and
6 insufficient arms, and he says that the cooperation
7 between the BH army and the HVO will continue.
8 Now, this is an official position of the
9 Bosnian government as spelled out by their official
10 representative with the United Nations. This is a
11 document which reflects the position of the official
12 Bosnian government, and if this is not so, I cannot
13 think of a piece of evidence that would stronger
14 support the view that the Defence submits.
15 The Defence would like to point out that in
16 this case, it is not possible to implement Article 2 of
17 the Statute because there was no international conflict
18 in the area at the time covered by the indictment.
19 Finally, let me very briefly refer to the
20 submission of the Defence. The Defence submits that
21 all charges in the indictment should be dropped. Since
22 there was no armed conflict, Article 2 of the Statute
23 does not apply, as well as points 8 and 10. The
24 Defence asks that Mr. Aleksovski be acquitted on all
25 these charges because of the lack of criminal
1 responsibility in the case against Mr. Aleksovski
2 [portion not translated].
3 Thank you very much.
4 JUDGE RODRIGUES: Thank you, Mr. Mikulicic.
5 You don't have to apologise because you haven't
6 offended anyone. This is your task, and we understand
7 it very well.
8 We have therefore come to a point when we
9 have to ask the Prosecutor and the Defence whether they
10 have any intention to present a rebuttal or rejoinder.
11 We're going to work until 6.00, and perhaps
12 we could share this time. I'm not King Solomon, but we
13 could divide up the time between the two parties. I
14 think that that would be a good procedure if you so
15 wish, if you wish to take advantage of the time
16 available, which would mean that we would have perhaps
17 a break midway, not now, but when we get halfway, so we
18 have another hour and a half left. One and a half
19 hours means, for the two parties, 45 minutes for each,
20 but if we deduct from that at least a quarter of an
21 hour, then roughly each side would have 35 minutes.
22 Because when we say "15 minutes," it's usually 20
23 minutes for the break. So we'll take off ten minutes
24 from the Prosecution, ten minutes from the Defence, and
25 then each will have 35 minutes.
1 Is that acceptable? Do you agree, Mr.
3 MR. NIEMANN: Yes, Your Honour. As I said
4 yesterday, there will be a number of matters which were
5 raised by Mr. Mikulicic which we would disagree with,
6 but the position that we would take in the Prosecution
7 is that if we've argued it, we don't want to go back
8 and argue it again to Your Honour because our point is
9 that we've made our point, Mr. Mikulicic has made his,
10 we are in disagreement, and we just leave it to Your
11 Honours to resolve. I have a few points which I would
12 say are new. If I take longer than ten minutes, I
13 would be surprised.
14 JUDGE RODRIGUES: Very well. We are giving
15 you, in any case, 35 minutes for the Prosecution and 35
16 minutes for the Defence. It is up to you to manage
17 that time. If you need only ten minutes, then the
18 Defence still has its 35 minutes.
19 Do you agree, Mr. Mikulicic, with this
20 procedure, this manner of resolving this problem? It
21 is a Solomonic solution, but I think it is a good one.
22 MR. MIKULICIC: I quite agree, even though it
23 is not a Solomonic solution.
24 JUDGE RODRIGUES: In that case,
25 Mr. Prosecutor, you have 35 minutes. If you wish to
1 take up only ten minutes' time, it's up to you.
2 Mr. Niemann?
3 MR. NIEMANN: If Your Honours please.
4 Your Honours, I wish to just touch on a few
5 matters which were raised by my learned colleague,
6 Mr. Mikulicic, in his submissions.
7 First of all, he spoke of ethnic hatred and
8 the fact that this could not be attributed to the
9 accused on the basis that he lived in the town of
10 Zenica, which was a town occupied by a large proportion
11 of Muslim people. Well, Your Honours, I just ask you
12 to consider that it's often a strange issue, the
13 question of motive, and it's not always as clear-cut
14 and as easy as that. We've had already one case before
15 this Tribunal of Tadic, where the accused lived in a
16 village of Kozarac which was predominantly Muslim, and
17 nevertheless, he was convicted of the charges that were
18 levelled against him in relation to that.
19 Your Honours, Mr. Mikulicic also suggested to
20 you that with relation to our reliance upon the
21 Celebici and other decisions, that because the appeal
22 process had not run its course, that therefore the
23 decisions were sub judice. We respectfully disagree
24 with that and submit to Your Honours that, of course,
25 you can refer to these cases and of course you can rely
1 on them. We are not for one minute suggesting that
2 they are binding on you, but they are persuasive and
3 certainly reliable, and I just point to the fact that,
4 for example, the accused are presently incarcerated on
5 the basis of those binding orders. So they certainly
6 have effect and they are certainly legally valid, and,
7 indeed, we don't know whether an appeal is going to
8 take place or not.
9 In our submission, the references to Celebici
10 should not in any way be discredited because of the
11 fact that the appeal process has not yet been
13 Your Honours, a reference was made to the
14 fact, and it was, I think, put more or less as an
15 inference by Mr. Mikulicic, that the division between
16 the ethnic communities in Bosnia-Herzegovina somehow or
17 other arose because the International Community
18 endeavoured, at least initially, to resolve the problem
19 based on drawing up a division between the ethnic
20 groups in Bosnia-Herzegovina.
21 The only comment I make about that is, the
22 International Community did not operate in a vacuum.
23 It acted upon what it was presented with when it went
24 there in an attempt to resolve the inter-ethnic
25 conflict, and this was merely a reflection, in our
1 submission, of the position of the parties which, at
2 that stage, the International Community thought it may
3 be able to resolve by that course. Any suggestions
4 that the International Community caused the conflict,
5 Your Honours, is, in fact, inaccurate.
6 Mr. Mikulicic made reference to the agreement
7 between Mr. Tudjman and Mr. Izetbegovic in 1992. In
8 our submission, that has little to do with the conflict
9 that subsequently ensued in January and onwards in
10 1993. We don't for one minute detract from the fact
11 that there was an ongoing relationship between the
12 parties and that, in fact, this agreement occurred in
13 1992, but this has little to do with the ultimate
14 conflict between the army of Bosnia-Herzegovina, the
15 HV, and the HVO.
16 Mr. Mikulicic made reference to the lack of
17 corroboration of medical evidence. Your Honours, I
18 covered this in my submission, but I just merely say
19 that both in the Celebici and Tadic cases and the
20 Akayesu case which I referred to, the Trial Chambers in
21 all of those cases came to the conclusion that there
22 was no requirement under international law to have
23 corroboration and that, indeed, it was entirely
24 appropriate to rely upon the testimony of
1 Mr. Mikulicic made reference to the Korematsu
2 and Hirabayashi cases in the United States. I just
3 comment on that, Your Honours, that this was a 1942
4 situation which operated before the 1949 Geneva
5 Conventions. We have moved somewhat further since
6 then, and, Your Honours, I made specific reference in
7 my submissions to the position taken by the Chamber in
8 Celebici which did come to the very firm conclusion
9 that people could not be interned. It was illegal to
10 intern civilians, especially when it's done on the
11 basis of their ethnicity.
12 Your Honours, the question of international
13 armed conflict that was finally touched upon by
14 Mr. Mikulicic when he told us about the exchange of
15 ambassadors, which I think perhaps it's the first time
16 I've heard about that, but in any event, in our
17 submission, that doesn't in any way, so far as I know
18 of the law of this matter, impact upon the question of
19 whether or not there is an international armed
20 conflict. Strange things happen in the world of
21 international diplomacy, and States do sometimes
22 maintain and carry on relationships, notwithstanding
23 the existence of a war operating between them.
24 Whether this is the first time in history, in
25 my submission, is of no consequence at the end of the
1 day in the determination of whether or not an
2 international armed conflict existed. As I said to
3 Your Honours, and I referred to the decision again in
4 the Celebici case, where Their Honours concluded that
5 an international armed conflict could be established if
6 a difference between two States leads to the
7 intervention of the military forces of those States,
8 and it didn't matter how long the conflict continued
9 for or how many people were killed in the process. You
10 may recall I mentioned that to Your Honours.
11 Excuse me, Your Honours. Thank you, Your
12 Honours. Those are the matters I wished to touch upon,
13 unless there is any other matter I can assist you
15 JUDGE RODRIGUES: Mr. Niemann, you lived up
16 to our expectations regarding your capacity for
18 Mr. Mikulicic, it is your turn now.
19 MR. MIKULICIC: Thank you, Your Honours. I
20 shall be even more brief than my learned
21 friend, Mr. Niemann. I think a great deal has already
22 been said and that you now have an overview of the
23 events, but just a few points.
24 When I referred to the fact that
25 Mr. Aleksovski grew up in Zenica, I stressed that this
1 in itself was not a key factor, but it did influence
2 the formation of his personality as somebody who mostly
3 socialised with Bosniak Muslims and whose best friend
4 belonged to that ethnic group. That is only in that
5 context that I mentioned it. Of course, the fact in
6 itself means nothing, but in this particular case, it
7 means what I have just said.
8 Of course, I didn't say that the
9 International Community had provoked the conflict in
10 Bosnia by their behaviour and mediation in the Konak
11 Villa in Sarajevo and later on with the Vance-Owen
12 Plan, I just said that that too was one of the causes
13 of the conflict in Bosnia-Herzegovina. History will
14 show what weight that fact had in relation to the
15 conflict. This is something that history will be able
16 to judge from a certain time distance; it is too recent
17 an event for us to be able to fully judge it. But I
18 think you will agree that such an initial approach had
19 some bearing.
20 Of course, the maintenance of diplomatic
21 relations at the embassy level excludes the possibility
22 of an international armed conflict. Why? Because
23 according to the definition in the Geneva Conventions,
24 there is an international armed conflict either when
25 one or other State declares war, and this hasn't
1 happened since 1945, or if at least one of the warring
2 parties become conscious of a state of war. The fact
3 that both parties exchanged ambassadors and maintained
4 diplomatic relations at the level of embassies and
5 consulates, clearly points to the conclusion that
6 neither side was conscious of the existence of an
7 international armed conflict. I think that is a
8 logical conclusion.
9 When I spoke about medical documents which
10 would be objective evidence of injuries sustained by
11 internees in Kaonik, I had in mind, as I think I said,
12 I had in mind the national standards, according to
13 national legislation, and linking this up with the
14 individual liability of the accused civilians, pursuant
15 to national laws regarding criminal offences, and those
16 are those serious criminal offences that I mentioned in
17 my closing arguments.
18 This submission has another side to it, and
19 that is, that in the absence of such documentation on
20 injuries, it is impossible objectively to verify the
21 kind of injuries sustained, how they were sustained,
22 whether they are injuries at all, and of what nature.
23 Therefore, if a person says, "I was seriously injured,"
24 that cannot be checked or verified. You will agree
25 that this is a decisive fact which is a decisive
1 element of the criminal offence and which must be
2 subject to objective verification.
3 The truth in this case is not in the eye of
4 the beholder but in the eye of objective and scientific
6 That is all I have to say. I thank you once
8 (Trial Chamber deliberates)
9 JUDGE RODRIGUES: So we have come to the end
10 of a part of our work but we haven't really come to the
12 In terms of Article 87, the Chamber is going
13 to deliberate in closed session, and we will announce
14 the date when we will deliver our judgement.
15 For the moment, I should like to take
16 advantage of this opportunity to thank the parties for
17 their ardour, their conviction, their motivation, and
18 the cooperation with which you approached the debate.
19 I also thank all the personnel, the technical booth,
20 the interpreters, the court reporters, and the registry
21 personnel for all their cooperation.
22 As for the Judges, our duty now is to draft
23 our judgement and, as I have said, we will announce the
24 date. For the moment, in accordance with Article 87, I
25 declare closed the debate, and we are going to withdraw
1 to deliberate.
2 Therefore, thank you all, until our next
3 meeting here for passing down judgement.
4 The hearing is adjourned.
5 --- Whereupon the hearing adjourned at
6 4.47 p.m. sine die