Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8945

1 Wednesday, 11 June 2008

2 [Open session]

3 [Defence Closing Statement]

4 [The accused entered court]

5 --- Upon commencing at 9.00 a.m.

6 JUDGE MOLOTO: Good morning to everybody in and around the

7 courtroom.

8 Madam Registrar, will you please call the case.

9 THE REGISTRAR: Good morning, Your Honours. Good morning

10 everyone in the courtroom. This is case number IT-04-83-T, The

11 Prosecutor versus Rasim Delic.

12 JUDGE MOLOTO: Thank you very much.

13 May we have appearances for today, starting with Prosecution.

14 MR. MUNDIS: Thank you, Mr. President. Good morning, Your

15 Honours, to my learned colleagues from the Defence, General Delic,

16 everyone in and around the courtroom. For the Prosecution, Daryl Mundis,

17 Matthias Neuner, Laurie Sartorio, Kyle Wood, Aditya Menon, and our case

18 manager Djurdja Mirkovic.

19 JUDGE MOLOTO: Thank you so much.

20 And for the Defence.

21 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. Good

22 morning to our learned colleagues from the Prosecution, to everyone in

23 and around the courtroom. Vasvija Vidovic and Nicholas Robson

24 representing General Rasim Delic, with legal assistants Lejla Gluhic,

25 Lana Deljkic, Asja Zujo, and our intern Claire Bonnel.

Page 8946

1 JUDGE MOLOTO: Thank you very much, Madam Vidovic.

2 Mr. Robson, good morning to you.

3 MR. ROBSON: Good morning, Your Honours.

4 In this part of our closing arguments, I will be dealing with the

5 Prosecution's crime base allegations, and I will also conclude with a few

6 words on sentencing.

7 Dealing, first of all, with the crime base allegations. Like the

8 Prosecution, I have split this into three main topics: First of all, the

9 issue of the crimes on the 8th of June; second, the July 1995 crimes;

10 and, third, the September 1995 crimes.

11 I will turn to the first topic, the Bikosi crimes. In its

12 closing brief, at paragraph 195, the Prosecution suggests that Mujahedin

13 from the Poljanice camp were engaged in combat with the 306th Brigade in

14 Maline on the 8th of June, 1993; and on Monday, the Prosecution claimed

15 that the involvement of the Mujahedin was not a random incident.

16 In our closing brief, at paragraphs 204 to 209, we have set out

17 in detail how there is no proof that Mujahedin participated in combat

18 with that unit, either in Maline village or elsewhere that day. In its

19 arguments, the Prosecution submitted that the Chamber should place no

20 reliance on what Saban Alic, a Prosecution witness and a Poljanice

21 Mujahedin member, said, and the reasons for that was because they said he

22 been with the Mujahedin less than one week at the time of combat.

23 Your Honours, you will recall that Mr. Alic stated there were no

24 links with the 306th Brigade and that no prior arrangements were made.

25 He said that they learned they would go into combat on the eve of the

Page 8947

1 action itself. What we say is that even if Mr. Alic was a mere foot

2 soldier, the week that he spent with that small group of Mujahedin would

3 have been sufficient for him to find out whether plans were afoot for the

4 Mujahedin to involve themselves in combat with the ARBiH.

5 More importantly, his evidence tied in with what the other

6 Prosecution witnesses had to say, you will recall, that no other

7 Prosecution witnesses mentioned that there was joint combat with the

8 Bosnian army. And, also, members of the 306th Brigade, Osman Fusko and

9 Sinan Begovic, confirmed that the army did not fight alongside the

10 Mujahedin.

11 In its arguments, the Prosecution suggested that the appropriate

12 witness to refer to was Ali Hamad. However, his evidence made it clear

13 at the time of the 8th of June combat, he was based in Bijelo Bucje; and

14 when he tried to head towards the Bila valley, he could get no further

15 than Travnik. And he explained that it took anything up to ten days

16 after the fighting on the 8th of June for him to meet up with the other

17 Mujahedin, and we can see this from transcript pages 60 and 61 of his

18 testimony on the 7th of September of last year.

19 Thus, that witness was not present in Mehurici or Poljanice when

20 plans were made for combat. And also it can be seen from the part of the

21 transcript that the Prosecution referred to the other day, page 29, that

22 he was speaking generally when he spoke about contacts with the ARBiH,

23 and he was not referring to the 8th of June combat.

24 As we set out in our closing brief, he subsequent testimony made

25 it clear that the Mujahedin were not under ARBiH control.

Page 8948

1 On Monday, the Prosecution also showed you some maps marked by

2 witnesses, and they referred to Exhibit 99 and Exhibit 64; however, those

3 exhibits do not show that the Mujahedin fought together with the ARBiH.

4 Yesterday, my colleague touched upon Exhibit 64, which was Sinan

5 Begovic's map, and that was because that was a document based on hearsay.

6 But even if you were to pay attention to that document, what you would

7 see is that there was about a distance of one kilometre between the ARBiH

8 units and the Mujahedin on the 8th of June. So, this, of course, shows

9 that this did not fight alongside each other.

10 Your Honours, I will turn to the issue of Guca Gora, which

11 cropped up in the Prosecution's arguments. And on Monday, the

12 Prosecution suggested that the events involving Ali Hamad at Guca Gora

13 indicated that the Mujahedin chief accepted Alagic's order not to blow up

14 the church. I don't want to say too much about this because it is set

15 out at our closing brief at paragraph 118, and Ms. Vidovic touched upon

16 this yesterday in her arguments. But I would remind that you that

17 Ali Hamad testified that the Mujahedin threatened to kill Mehmed Alagic

18 at the church, and we can see that at transcript page 120 from his

19 testimony on the 8th of September of last year.

20 Also, Ali Hamad confirmed that the reason that Wahiuddin decided

21 not to damage the church was that he estimated that it was not in the

22 Mujahedin's interest to have a conflict with the Bosniaks, and that was

23 at page 121 that that was said.

24 So, Your Honours, neither of these pieces of evidence point to a

25 relationship of effective control.

Page 8949

1 The Prosecution's most important assertion in its closing brief,

2 concerning the Bikosi killings, is that the Mujahedin responsible for the

3 killings were from the Poljanice camp. It claims that the perpetrators

4 emerged from the camp. However, to the contrary, we have explained in

5 paragraph 228 of our closing brief that the evidence varied as to where

6 the Mujahedin appeared from. What is clear, however, is that no witness

7 ever stated that they emerged from the camp, nor did they ever say that

8 they emerged from the external parameter.

9 The Prosecution claims that Halim Husic confirmed that the

10 Poljanice Mujahedin were the only group in the area; however, he

11 testified quite the opposite. I quote from his testimony: "In that

12 period of time, there were several different groups that were often times

13 mutually conflicting and were stationed and active in different areas."

14 He went on to explain about Guca Gora group. Moreover, he said that on

15 the 10th of June, 1993, he saw men in Guca Gora that he subsequently

16 learned were the Turkish Gerila. As he explained in his testimony, the

17 distance from Guca Gora to Bikosi was only two kilometres, and that was

18 along an asphalt road which linked the settlements together, a very short

19 distance, we would say.

20 I would remind you that one of the most surprising features of

21 the Prosecution's case, as set out in its closing brief, is that it has

22 totally ignored all the evidence showing that there were other Mujahedin

23 groups active in Central Bosnia, and this applies to the time-periods in

24 both 1993 and in 1995. In its arguments, the Prosecution suggested that

25 the other Mujahedin, groups which the Defence referred to in its closing

Page 8950

1 brief at paragraph 230, did not have local Bosniak members.

2 Now, in that paragraph, apart from the Poljanice Mujahedin group,

3 we rely on evidence to show there were three other groups in the area:

4 Abu Hamza's group in Guca Gora, the Zenica Turkish Gerila, and

5 Abu Zubeir's group.

6 First of all, dealing with the Zenica Gerila --

7 JUDGE MOLOTO: Did they also have local Bosniaks?

8 MR. ROBSON: Yes, Your Honour. Certainly, the Zenica Gerila; and

9 if we could bring up Exhibit 179, I will show you why.

10 JUDGE MOLOTO: No. I just wanted an answer.

11 Thank you.

12 MR. ROBSON: If it is possible to bring up Exhibit 179 on the

13 screen, what we will see here is a document that the Trial Chamber has

14 come across many times before, and it is the letter of Hadzihasanovic

15 dated the 13th of June 1993. And in this letter, we can see in the first

16 paragraph, he says: "In the general area of Zenica municipality, since

17 the beginning of the war, there have been volunteers from foreign

18 countries, Arabs and Turks, as well as a group of Bosnians trained by

19 them, the so-called Gerila."

20 Your Honours, it is, therefore, clear from this letter that the

21 Gerila group comprised locals; and, similarly, Halim Husic was asked

22 about this in his testimony.

23 A question was put to him by my learned colleague: "Just one

24 moment please. When you say 'Gerila from Zenica,' are these foreigners

25 or locals?"

Page 8951

1 And his reply to that was: "Turkish Gerila comprising mostly

2 foreigners."

3 So he also confirmed that there were some locals within its

4 ranks. Very importantly, in connection with Mr. Husic's evidence, his

5 evidence showed that those Mujahedin, the Turkish Gerila, were operating

6 in that area on the 10th of June, a very short period after the killings.

7 As to the Abu Hamza group, it is not for the Defence to prove

8 there were locals in that group, and we would note that the Prosecution

9 has not called any evidence to show that it was comprised exclusively of

10 foreigners.

11 As to the suggestion that Abu Zubeir's group was comprised

12 exclusively of foreigners, in its arguments the other day, the

13 Prosecution relied upon the statement of PW-9, who stated that as far as

14 he knew, that group was formed only out of the Arabs. However, if you

15 look at that self-same statement, at paragraph 101, we can see that PW-9

16 first learned of Abu Hamza and his group at the end of 1994. The

17 Prosecution has called no evidence to show that there were no local

18 Bosniak members in the Abu Zubeir group in June 1993, some one and a half

19 years earlier.

20 Therefore, Your Honours, on the evidence the fact that Mujahedin

21 appeared at a location close to the Poljanice camp cannot lead the Trial

22 Chamber to conclude beyond a reasonable doubt that they were members of

23 the Mujahedin group based there. Clearly, it cannot be excluded that the

24 Mujahedin who carried out the killings were members of one of the other

25 groups in the area or even an ad hoc collection of foreign and local

Page 8952

1 persons involved in a criminal venture.

2 JUDGE HARHOFF: Mr. Robson, before you move on, on this subject,

3 obviously, what attracts the Chamber's attention is the pattern that was

4 conducted on the 8th of June, in which apparently you see the two

5 formations moving down. This was, I admit, this was the testimony of

6 this soldier that you mentioned; but, still, we have no reasons to doubt

7 that what he told us about the way they moved that day was true. So it

8 looked as if there was a coordinated movement by two units.

9 So is it your position that this was mere chance or coincidence

10 that they happened to move in the same direction, or could there have

11 been some sort of planning?

12 MR. ROBSON: Your Honour, the witness that you referred to, I

13 believe, was Sinan Begovic; and as Ms. Vidovic pointed out yesterday, he

14 didn't see anything, and it was merely hearsay that he -- it was hearsay

15 that formed the basis of what he explained to the Trial Chamber and which

16 led to him drawing the map. So we would say that he is a person who had

17 no real clear knowledge of what went on that day.

18 And, really, what we would draw to your attention is that the

19 evidence shows that there were other groups in the area. Certainly, the

20 Abu Hamza group was based two kilometres away, a very short distance.

21 There was a good road, an asphalt road, that connected the two locations.

22 We would submit that the evidence shows that there is -- it cannot be

23 excluded that it was not one of the other groups that was outside -- in

24 the vicinity at that time.

25 Now, I'd like to turn to the charge of cruel treatment in

Page 8953

1 relation to the Bikosi events. And, here, the Prosecution must prove an

2 intentional act or omission was committed which caused serious mental or

3 physical suffering or injury or constituted a serious attack on human

4 dignity.

5 Your Honours, I'd remind that you on the evidence before the

6 Hadzihasanovic Trial Chamber, during which that Chamber heard from three

7 witnesses about the Bikosi events, including Berislav Marijanovic and

8 Zdravko Pranjes, two of the same witnesses that we had before us, it held

9 that no reasonable Chamber could conclude that cruel treatment had

10 occurred. It acquitted the accused of that charge, and that was in

11 decision on the motions for acquittal pursuant to Rule 98 bis issued on

12 the 27th of September, 2004. And in our submissions, Your Honours, the

13 evidence in this case as to cruel treatment is not any stronger.

14 The next main claim of the Prosecution is that General Delic had

15 effective control over the Mujahedin on the 8th June 1993. Evidence

16 proves quite clearly that this is not the case. It is for the

17 Prosecution to prove that the perpetrators were at least members of an

18 identifiable group and that General Delic exercised effective control

19 over them at the time the crimes were committed.

20 In our closing brief, at paragraph 253, we have detailed the

21 evidence relating to the timing of the Bikosi killings. A reasonable

22 conclusion would be that it was around noon or early afternoon at the

23 latest. We know that Osman Fusko had already received information about

24 the killings during the afternoon. Therefore, on the evidence, the

25 Prosecution cannot proof that the decision to appoint General Delic as

Page 8954

1 Main Staff commander was taken before the crimes were committed. Even if

2 he had been appointed as Main Staff commander, the applicable standard

3 which must be applied is that he must have exercised effective control

4 over the perpetrators. De facto effective control over his immediate

5 subordinates was not established until after 8.00 p.m. on the

6 8th June 1993. It follows that his authority could not have been

7 excerpted down further through the chain of command until a later stage.

8 There must be perfect temporal coincidence between the crimes and the

9 effective control, and we submit that there is no way he could have

10 exercised effective control at the time the crimes were committed.

11 Your Honours, I would also note that the Prosecution has not even

12 issued -- hasn't argued the issue of timing in its closing brief at all.

13 Furthermore, in its brief, the Prosecution argues that there are

14 cogent reasons to depart from the majority position in the Hadzihasanovic

15 interlocutory appeal decision. The Prosecution mentions this at

16 paragraph 228 of their brief.

17 However, the Prosecution fails to take into account that this

18 decision has become settled case law. It was specifically endorsed by

19 the Appeals Chamber in the Halilovic Appeals judgement at paragraph 67.

20 No Appeal Chamber judges dissented from that endorsement, and it follows

21 that this is solid jurisprudence that this Chamber is bound to follow.

22 Your Honours, I'll turn to the issue of knowledge concerning

23 Bikosi.

24 Concerning actual knowledge of the Bikosi killings, at

25 paragraph 229 of the Prosecution's brief, it refers to a number of

Page 8955

1 factors which it says that the Chamber can take into account into

2 determining whether actual knowledge of crimes can be inferred. Your

3 Honours, none or few of those factors assist the Prosecution in this

4 case. In fact, if reliance is placed on those factors, they all point to

5 the conclusion that General Delic did not have actual knowledge.

6 The Prosecution claims that General Delic was specifically

7 informed about the 8th of June killings by Witness PW-3. However, the

8 evidence that this led in that regard either lacked reliability or could

9 lead to no reasonable conclusion except that General Delic did not

10 receive any written communications concerning the Bikosi killings or that

11 he was not informed about them in person.

12 As to PW-3's written communications, the Prosecution asserts that

13 the SVK communication centre would have directed Exhibits 170 and 171 to

14 General Delic. In our closing brief, and this is at paragraphs 276 and

15 also 312, we have set out numerous factors which would have led the

16 communications not being forwarded.

17 On Monday, the Prosecution highlighted a number of documents that

18 were sent to General Delic, and this is from a time-period of June to

19 August 1993. And it seems to be the Prosecution's argument that just

20 because you can be sure that General Delic received a handful of

21 communications during that period, you can be certain that he received

22 all communications.

23 Your Honours, it would not be reasonable to make an assumption.

24 For the reasons explained in our closing brief, the Prosecution has

25 failed to prove beyond a reasonable doubt that those documents were ever

Page 8956

1 forwarded to General Delic; and, of course, I'm referring there to

2 Exhibits 170 and 171.

3 Moreover, in its closing brief, at paragraph 238, the Prosecution

4 claims that General Delic failed to respond to the substantive matter

5 contained in Exhibit 174, and that was a letter which warned about the

6 Muslim armed forces threatening to split the 3rd Corps. As we explained

7 in our brief, to the contrary, the evidence shows that General Delic did

8 receive that letter and he reacted by issuing Exhibit 225, and this was

9 something that Witness PW-3 confirmed.

10 So, where does that take us? In our submission, the evidence

11 clearly shows that in those instances where the Trial Chamber can be sure

12 that General Delic received a request for assistance, he reacted and he

13 tried to resolve the problem.

14 The Prosecution's case theory, in a nutshell, is that

15 General Delic received PW-3's communications relating to problems with

16 the Mujahedin; and for reasons unknown, he simply ignored the matter.

17 However, that argument is shown to illogical, when you take into account

18 that on the 16th June 1993, less than one week after the Bikosi killings,

19 and you must bare in mind that General Delic had not been alerted to

20 those killings, he issued Exhibit 163. That exhibit, you will recall,

21 was his order to his subordinate, Hadzihasanovic, to take steps to bring

22 the Gerila Mujahedin group in Zenica within a system of command and

23 control. In that order, General Delic directed that if that could not be

24 carried out, Hadzihasanovic was to, and here I quote the order, "show

25 them no hospitality and eventually disarm them."

Page 8957

1 Your Honours, the evidence, of course, shows that General Delic

2 had no way of enforcing that order because his subordinates actively

3 conspired to undermine it. But the order is important because what it

4 shows was that General Delic was prepared to take steps to try and deal

5 with the Mujahedin groups. Against the background that we have set out

6 in detail in our closing brief, the fact that did he not respond to

7 Exhibits 170 and 171 can only lead the Trial Chamber to the conclusion,

8 the reasonable conclusion, that he did not receive those letters.

9 JUDGE MOLOTO: It's the only reasonable conclusion?

10 MR. ROBSON: It can't be excluded, Your Honour.

11 JUDGE MOLOTO: Yes. But is it the only reasonable conclusion?

12 Isn't it also reasonable that he might have just ignored to respond or he

13 may have just forgotten respond?

14 MR. ROBSON: Your Honour, clearly, that is not our position.

15 JUDGE MOLOTO: Yes, I understand. I understand that is not your

16 position. I'm just saying are there not more than one reasonable

17 conclusion?

18 MR. ROBSON: Your Honour, in due course, you will weigh the

19 evidence and you will take on board our submissions; but, at this stage,

20 we would say that there is no conclusion that he didn't receive those

21 documents.

22 JUDGE MOLOTO: Thank you.

23 MR. ROBSON: Now, as to claim that PW-3 discussed issues with

24 General Delic, and the Prosecution deal with this in paragraph 239 the of

25 their brief, the Trial Chamber attempts to clarify with PW-3 what issues,

Page 8958

1 if any, he discussed led to hopelessly vague and cryptic answers from

2 that witness. No mention is made by PW-3 that he discussed the Mujahedin

3 with General Delic at all. Thus, it was never clarified what issues, if

4 any, were discussed.

5 JUDGE MOLOTO: I thought he said that when he did discuss with

6 him, he shrugged his shoulders.

7 MR. ROBSON: Indeed, that is it correct, Your Honour. You will

8 see evidence, but what you will see is that immediately after that, he

9 began discussing problems with the 7th Muslim Brigade.

10 JUDGE MOLOTO: It does seem as if he did discuss with

11 General Delic.

12 MR. ROBSON: Indeed, Your Honour, the evidence was that he said

13 he had a discussion with General Delic, but it was not clear what issues

14 were discussed.

15 JUDGE MOLOTO: About the Bikosi issue, and he says General Delic

16 shrugged his shoulders.

17 MR. ROBSON: Your Honour, our reading of the evidence is that it

18 wasn't clear he was talking about the Bikosi killings, but that is

19 obviously something that the Trial Chamber --

20 JUDGE MOLOTO: We will check the evidence. Thank you so much.

21 MR. ROBSON: It follows, then, Your Honours, that the Prosecution

22 has failed to prove that General Delic was ever informed of the killings

23 in Bikosi.

24 And on the issue of knowledge, we would want to emphasise that in

25 no way can the Prosecution prove that the perpetrators of the Bikosi

Page 8959

1 killings went on to become members of the El Mujahedin Detachment, and

2 this would be crucial for the Prosecution to rely upon the Bikosi

3 killings as being relevant to knowledge that the accused had reason to

4 know that crimes would be later committed by the El Mujahedin Detachment.

5 And my authority for that proposition is the Hadzihasanovic Appeals

6 judgement, at paragraph 30, which makes it clear that the Prosecution

7 must prove that the same group of subordinates were involved in each of

8 the alleged offences.

9 Now, in respect of the results of the investigation that was

10 carried out later on in 1993, the Prosecution goes on to claim in its

11 brief that the result of the October 1993 investigation was indirect

12 contradiction to what General Delic already knew. As I just mentioned,

13 Your Honours, our case is clearly that General Delic did not receive any

14 information about -- prior to President Izetbegovic's letter of the

15 17th October 1993.

16 On Monday, Your Honour, Judge Moloto stated that, in your

17 recollection, the information that President Izetbegovic reported to

18 General Delic did not conflict with the information from PW-3; and with

19 respect, it is our submission that this is not the case.

20 And, Your Honours, if we could about into private session at this

21 moment, please.

22 JUDGE MOLOTO: May the Chamber please move into private session.

23 [Private session]

24 (redacted)

25 (redacted)

Page 8960











11 Pages 8960-8961 redacted. Private session.















Page 8962

1 [Open session]

2 THE REGISTRAR: Your Honours, we're back in open session.

3 JUDGE MOLOTO: Thank you so much.

4 Yes, Mr. Robson.

5 MR. ROBSON: So we are still with this issue, Your Honour.

6 What we do know is that following President Izetbegovic's letter,

7 General Delic very properly ordered an investigation. When he received a

8 report of the 3rd Corps, he was entitled to rely upon that.

9 On Monday, the Prosecution claim that the time-period of four

10 days to receive that response was far too little time, but the fact that

11 the report was received quickly should not be held against General Delic.

12 The letter of President Izetbegovic of the 17th October demanded that the

13 report be completed urgently. And the report, of course, came from

14 Dzemal Merdan, who was the second most senior officer within the

15 3rd Corps, and he was somebody that General Delic would be expected to

16 rely upon and trust.

17 The report also referred to the visit to the burial location by

18 members of the international community and also a prominent Bosnian

19 Croat. It also referred to reports from the 306th Brigade to its

20 superior command. So those references would have bolstered the

21 impression that a proper investigation had been carried out at the lower

22 levels.

23 There was nothing in the report to indicate any unreliability or

24 reason why it could not have been accepted by General Delic, and we would

25 also say that this report, which contained the results of a military

Page 8963

1 security service investigation, would have carried a lot of weight, much

2 more than any unsubstantiated reports of crimes which may have been

3 previously received.

4 Your Honours, on the issue of measures, the Prosecution suggests

5 that the district military prosecutors in Travnik and Zenica never

6 received any criminal reports from the ARBiH concerning the crimes in

7 Bikosi. This is at paragraph 241 of their brief.

8 This has been dealt with in our closing brief, but I would just

9 like to remind you that Exhibit 881 contains a list of selected files

10 taken from the Zenica public prosecutor office. And on page 3 of the

11 B/C/S version of that document, it can be seen that a criminal report was

12 filed against Bezim Spahic, who is the head of Zenica municipality or

13 held a similar function, and that it, inter alia, related to Maline and

14 Bikosi. Also, it can be seen that another criminal report was filed

15 against 3rd Corps commander, Hadzihasanovic.

16 In his testimony, the Zenica public prosecutor,

17 Mr. Hadziselimovic could not exclude the possibility that these criminal

18 reports related to crimes which occurred in Bikosi. Therefore, it

19 follows that the Prosecution has failed to prove beyond a reasonable

20 doubt that no individual was ever investigated or prosecuted for the

21 Bikosi crimes.

22 Your Honours, at that, I'd like to move to the second main topic,

23 which is the July crime base.

24 As you are aware, the crime base evidence relates to two

25 locations: Livada village and Kamenica camp.

Page 8964

1 Concerning Livada, the Prosecution claims that two captured VRS

2 soldiers, allegedly Predrag Knezevic and Momir Mitrovic, were taken to

3 Livada and killed.

4 First of all, we do not accept that the identities of the two

5 killed men in Livada have been established. The purported

6 identifications by Velibor Trivicevic were made in very difficult

7 circumstances.

8 And, secondly, when regard is had to the exhibits which the

9 Prosecution relies on to establish identity, and these are exhibits 1174

10 and 644, there is no chain of custody to show that samples from the

11 remains of the bodies found in Bozici village in May 2006 led to the

12 production of DNA reports in October 2006, bearing the names of Knezovic

13 and Mitrovic. Unlike the bodies from the Kamenica grave, no witness came

14 along and explained how samples were taken and sent for analysis.

15 Goran Krcmar's statement doesn't set out what happened, and he

16 doesn't say where the samples were sent to. The identification numbers

17 relating to the bodies do not even properly match the identification

18 numbers on the DNA reports.

19 And, thus, Your Honours, we would say that the Trial Chamber has

20 been left to speculate on the whole process. In this case, the Defence

21 has always made it clear that the forensic evidence was in dispute. It

22 is not stuff for the Prosecution to come along and make two simple

23 references in the footnotes and hope that somehow the Trial Chamber will

24 link them together. This, we would say is not an approach which is

25 appropriate for criminal forum, particularly in a murder case; and,

Page 8965

1 therefore, the Prosecution forensic evidence does not establish beyond a

2 reasonable doubt that the two bodies found were those of Predrag Knezevic

3 and Momir Mitrovic.

4 Secondly, concerning those killings, the most important fact is

5 that there is no way of knowing with certainty who killed the two men and

6 whether they were members of an identifiable group, particularly whether

7 they were members of the El Mujahedin Detachment.

8 You will recall that the evidence was that on hearing noise and

9 shouting, the Mujahedin who was guarding the prisoners ran out of the

10 room and came back carrying a cut-off head. On the Prosecution's theory,

11 it follows that this guard cannot have been the perpetrator.

12 Your Honours, no amount of fancy resolving three dimensional maps

13 can be make the evidence stronger in this case. A criminal trial should

14 not be an exercise in speculation, and the simple fact is that we have no

15 idea who the perpetrators were. We can't tell whether the two men were

16 killed in Livada or elsewhere. It follows the Prosecution cannot prove

17 beyond reasonable doubt that the El Mujahedin members carried out the

18 killing, nor prove that the circumstances of the killing amounted to

19 murder.

20 Moving to the next location, which is within the July crime base,

21 this is Kamenica camp.

22 Concerning Gojko Vujicic, the Prosecution is unable to establish

23 to the criminal standard of proof that the perpetrator of that killing

24 was an El Mujahedin member. Your Honours, it is suggest significant that

25 in its closing brief, at paragraph 253, the Prosecution claims that

Page 8966

1 following the transfer of the prisoners to Kamenica camp, they were

2 visited by non-EMD Bosnian army soldiers. This claim demonstrates that

3 the Prosecution's case theory is that non-EMD personnel had access to the

4 Kamenica camp; and in particular, they had access to the VRS prisoners.

5 I should say that there is no evidence to show who these purported

6 non-EMD persons were.

7 However, at the same time, the Prosecution seems to claim that no

8 one else, apart from the EMD, have access to the camp. You will remember

9 that on Monday, Ms. Sartorio said that there is no evidence in the case

10 that any other group used this camp. We would say that the Prosecution

11 cannot have it both ways.

12 The evidence relating to the camp show that although there were

13 guards manning the entrance to the camp, this was not a high-security

14 arrangement. There was no evidence of any guards manning the parameter

15 of the camp or fencing or barbed wire or anything similar to keep out

16 unwanted visitors.

17 As to the alleged perpetrator of the killing, the witness simply

18 described the perpetrator as a Mujahedin and gave no other description.

19 We don't even know whether that person was a foreigner or a local. And,

20 therefore, on the basis of the Prosecution's position that non-EMD

21 personnel had access to the camp, it is clear that the Prosecution cannot

22 exclude the possibility that the perpetrator was not an EMD member.

23 As to the charge of cruel treatment relating to Kamenica camp in

24 July, the Prosecution claims, at paragraph 252, that the VRS soldiers

25 were subjected to mistreatment from the moment of capture to their last

Page 8967

1 hours in EMD custody. The Prosecution would have you believe that the

2 mistreatment was relentless, it lasted throughout the entire duration of

3 the detention. However, as we set out in the brief, the Prosecution

4 hasn't proved that that was the case.

5 We would invite the Trial Chamber to ask itself whether the

6 prisoners would have left the camp; and, here, I refer to the

7 prisoners -- the witnesses own descriptions about themselves, with only

8 markings to the hands and feet from their binding and a broken tooth but

9 no other injuries.

10 Also, according to Dr. Sikanic, whose Rule 92 bis statement you

11 received, apart from Gojko Vujicic, one of the other prisoners had a

12 serious injury, and that was a person called Goran Stokanovic. In his

13 statement, at page 9, Dr. Sikanic said this man had a big wound on his

14 leg caused by a bullet. However, even though the prisoner was seriously

15 wounded, he obviously survived and was amongst the released prisoners

16 from the camp. And we submit that this does not indicate relentless

17 mistreatment in the camp, but confirms that while they were there, the

18 prisoners received effective medical treatment.

19 As part of its arguments, the Prosecution refers to Velibor

20 Trivicevic's evidence that a boy cut his ears with a knife, this is

21 mentioned at paragraph 290 of their closing brief. And I would remind

22 you that Mr. Trivicevic testified that both ears were still intact and

23 only small cuts made to them.

24 Your Honours, as we explained in our closing brief, in general

25 terms, the conditions for the prisoners improved markedly following that

Page 8968

1 first night in Kamenica camp.

2 And that, Your Honour, brings me to my final topic within the

3 crime base evidence, which is the September crime base.

4 I'll deal, first of all, with the alleged killings with Milenko

5 Stanic and Zivinko Todorovic, which supposedly took place in the vicinity

6 of Kesten.

7 As to Milenko Stanic, the Prosecution relies upon DRW-3 and

8 PW-10. In her evidence, DRW-3 said that she saw the man she referred to

9 as Milenko Stanic being killed by the road leading to Kesten. From her

10 evidence, it was not proven that he laid down his arms and held protected

11 status, and she described how he was killed by automatic rifle fire.

12 However, in contrast, PW-10, a Rule 92 bis witness, stated that

13 he saw Milenko Stanic being killed outside the hall in Kesten. He

14 described how the man left the line in which he was standing and tried to

15 choke a Mujahedin. As a result, the Mujahedin shot him and stabbed him

16 numerous times. And, thus, we would say it is not clear whether DRW-3

17 and PW-10 are, indeed, talking about the same incident.

18 Furthermore, PW-10's account broadly ties in with what Izet

19 Karahasanovic told the Trial Chamber, and that is he heard that two VRS

20 soldiers had been killed that morning resisting captors, and that led to

21 him recording on his list that two were killed on the road in Kesten.

22 Now, Your Honours, as PW-10 was not called to testify, there was no way

23 for us to query the discrepancies in the evidence there.

24 As to the other alleged victim, Zivinko Todorovic, as we stated

25 in our closing brief, at paragraph 577, when witness DRW-3 was asked

Page 8969

1 whether she knew Zivinko Todorovic, she said no. On Monday, the

2 Prosecution invited to you pay no attention to that answer. They asked

3 you to just simply pay attention to her statement which was given to the

4 Ministry of Interior, in which she described the killing.

5 Your Honours, this is not the way that a criminal Tribunal should

6 work. If a witness is having trouble with recollection, it is always

7 open to a party to seek leave for a document to be shown to a witness for

8 the purpose of them refreshing their memory. There was no such

9 application in this case. Although the witness was testifying by

10 videolink, this still would have been a course of action open to the

11 Prosecution.

12 Your Honours, the Defence position is that there is insufficient

13 evidence to establish that the perpetrators of any killing or killings on

14 the road to Kesten was committed by El Mujahedin members. And that, of

15 course, is one of the questions that you put to us, question number 1.

16 Moving then to the next and most serious allegation that the

17 group of 51 VRS prisoners were murdered. Let me say at the outset that

18 the Prosecution has failed to prove that a group of 51 were seized by

19 members of the EMD and that they were taken to Kamenica camp. Your

20 Honours, we would submit that its case is based on wholly unreliable

21 evidence.

22 Just dealing with the Judge's question number 2 for a moment, if

23 I may, as to how Marko Maric arrived at the Kesten hall. Our submission

24 is that it is unclear whether a person of that name actually arrived at

25 the hall. The only suggestion that he was there was based on the

Page 8970

1 penultimate paragraph of PW-10 statement, where he said that Marko Maric

2 was missing from the group of 52 or 53. But, Your Honours, he didn't say

3 where he last saw the man, he didn't say how you knew the man, or gave

4 any clear information to show that he was there at all.

5 So that's our response to question 2.

6 If we can consider the evidence relating to the seizure of the 51

7 prisoners there, the initial eye-witness accounts cannot assist the Trial

8 Chamber in determining which group, if any, the Mujahedin belonged to.

9 Yesterday, the Prosecution pointed out -- I should say that on

10 Monday, the Prosecution pointed out that the Rule 92 bis statement of

11 Muhamed Omerasevic, Exhibit 970, was important to prove that the

12 El Mujahedin Detachment took prisoners, and they refer to paragraph 76.

13 However, throughout that statement, the witness refers to the person

14 seizing the prisoners as Arabs. So it is clear that that didn't help

15 establish that they were members of the El Mujahedin Detachment.

16 Your Honours, the evidence shows that the EMD members and members

17 of the other Mujahedin groups all dressed in a similar way. They had no

18 set uniforms; they wore combinations of military and civilian dress,

19 sometimes coupled with traditional Arabic clothing; they came from any

20 number of countries; they all wore beards, as did many Bosnian men at

21 that time.

22 The Prosecution relies on documents to show that the EMD were

23 engaged in combat around Kesten on the 10 and 11 September, but the

24 documentary evidence, in fact, shows that the EMD moved away from that

25 area towards Kvrge.

Page 8971

1 Fuad Zilkic confirmed that around the time of the take over on

2 the 11th of September, he saw that EMD advancing towards Kvrge, which

3 explained is about five kilometres away from Kesten. Taken out of

4 context, that may not seem like a particularly long distance; but we

5 would submit that true during an intense military operation in such

6 mountainous and difficult terrain as the Vozuca-Ozren region, that, in

7 fact, is a huge distance.

8 Thus, it cannot be put beyond a reasonable doubt that the group

9 seizing the 51 prisoners from Kesten was one of the several other

10 Mujahedin groups operating in that area. And perhaps most importantly, I

11 remind you that Ali Hamad, who the Prosecution described as one of the

12 most important witnesses in the case, testified that the Abu Zubeir group

13 was present in the Vozuca-Ozren region. And you will recall his map

14 which was carefully drawn by him, and it showed that the Abu Zubeir group

15 moved right through the Kesten area.

16 One thing that the Trial Chamber can be certain of when is that

17 it comes to Mujahedin fighters killing VRS prisoners of war that day, Ali

18 Hamad confirmed that he saw men under the command of Abu Zubeir's deputy

19 carry out a killing.

20 Now, Your Honours, apart from the initial eye-witness accounts,

21 the Prosecution relies on a number of viva voce and Rule 92 bis witness

22 and also some documentry evidence to support its claim.

23 In its opening speech, the Prosecution made it clear that its

24 case is a circumstantial one, and my colleague touched upon this type of

25 evidence yesterday. What I would like to emphasise is that when you come

Page 8972

1 to scrutinize the evidence relating to these crime base witnesses, it is

2 important for the Chamber to look at each witness or each piece of

3 evidence individually to decide whether sufficient reliance can be placed

4 on witness or the evidence. This must be done carefully.

5 If you find that a witness or piece of evidence is sufficiently

6 reliable so that you can plays reliance upon it, then you can move to

7 look at other witness or piece of evidence to see if there is sufficient

8 reliance there. However, what you can't do in order to decide whether

9 the first witness is reliable is, at the same time, look at the second or

10 third witness and say, Well, they're saying the same thing so the first

11 one must be reliable. We say that that would amount to a circular

12 process of corroboration which would be wrong.

13 We've set out at length in our closing brief, the reasons why

14 DRW-3, PW-7, or PW-12 cannot be considered to be reliable witnesses in

15 all respects. Common to all witnesses is the substantial length of time

16 which went by before any of them was asked to prepare a witness

17 statement, coupled with the admission that they all had difficulties in

18 recollection.

19 It is obvious that over time memories can fade, can be lost, or

20 contaminated. And in the case of DRW-3, she made her first statement in

21 November 1999, the same day as DRW-1 and DRW-2. And in the cases of

22 PW-12 and PW-7, they made their first statements in March 2000, although

23 it took PW-12 more than one year to complete his witness statement.

24 And before I move away from the reliability of these witnesses,

25 what I'd like to point out, Your Honours, is that contrary to what the

Page 8973

1 Prosecution stated several times on Monday, at no stage do, we actually

2 challenge the credibility of those three witnesses. We do, of course,

3 challenge their reliability and say that they are mistaken witnesses.

4 Thus, it is our submission that as you scrutinize each witness

5 and each piece of evidence, no hard facts can be drawn.

6 Your Honour, concerning the three women, in our brief, we

7 explained how the evidence shows that they were taken by a different

8 group of persons to those who seized the group of 51 in Kesten.

9 Moreover, the evidence suggests that the women could have been seized by

10 a known group which was not the El Mujahedin Detachment.

11 Contrary to what the Prosecution claimed on Monday, in our brief,

12 we never claimed that DRW-3 only exclusively herd the Bosnian language

13 while she was at that first detention area or location, but what we do

14 say is that was the predominant language spoken.

15 On Monday, the Prosecution also asserted that DRW-3 was told she

16 had been at Kamenica by a military policeman. And what we point out is

17 that that is different to what they claimed in their closing brief, at

18 paragraph 335. There, they suggested that one of the soldiers at the

19 first location identified the place as Kamenica.

20 Your Honours, the reality is that DRW-3's evidence on this point

21 is extremely confusing. At first, she claimed that she was told the name

22 of the initial detention location at the time she left there by a soldier

23 who came in through the door. She then went on to say that when women

24 arrived at school, they were asked whether they knew they had been in

25 Kamenica. She responded, "We did not." Later, she was asked if she had

Page 8974

1 been told the name of the location by the two ARBiH soldiers who had

2 collected them from Podbrezje, and she had made it clear that they, i.e.

3 those two soldiers, had told her that.

4 However, in his testimony, Zakir Alispahic, the policemen who

5 collected the three women, made it clear that he did not inform the women

6 of where they had been, nor did he know where they had been.

7 So, Your Honours, in such circumstances, we submit that it would

8 be unsafe for the Trial Chamber to make any finding that the women or the

9 witness had been told -- that she had been told she was in Kamenica

10 around the time of her intention or subsequent release.

11 In its closing brief, at paragraph 343, the Prosecution alleges

12 the three women were taken from Kamenica to Podbrezje, where they were

13 mentally tortured. The Defence disputes the conditions of treatment at

14 Podbrezje of Vatrostalno amounted to cruel treatment, let alone torture.

15 More importantly, I would, again, remind you that the Prosecution

16 did not plead any alleged mistreatment at the Vatrostalno location as

17 part of its case in either the indictment or the Prosecution pre-trial

18 brief. We first heard about this allegation in the Prosecution closing

19 brief, and it follows, then, that the Defence was not put on notice of

20 any intention that allegations at the Vatrostalno location would form

21 part of the charges.

22 The Trial Chamber should not, therefore, take into account any

23 evidence of alleged mistreatment at Vatrostalno in determining the

24 charges.

25 Your Honours, I will deal with the group of ten prisoners very

Page 8975

1 briefly.

2 In respect of those prisoners, you heard the evidence PW-12 and

3 PW-7. We say that that evidence was contradictory and unreliable,

4 particularly concerning what they were told by others. One of the key

5 pieces of evidence that the Prosecution relies on is PW-12's account that

6 he heard many being taken outside and he heard the sounds of shots.

7 However, if you look at the Prosecution's arguments in its closing brief

8 and the language it uses, it is says he believed detained POWs were

9 brought downstairs. It says PW-12 thinks that those shots were seven

10 soldiers being executed.

11 And we would say, Your Honour, that that language ought to signal

12 an alarm to the Trial Chamber that this is not something that can be

13 relied upon.

14 Your Honour, as to the documents that the Prosecution seek to

15 rely upon, if I can quickly discuss the intercepted fax, exhibit 669,

16 this did not establish at all that the El Mujahedin Detachment took the

17 prisoners. Your Honour, this is was a combat report, you will recall

18 from, the EMD to its superiors abroad, and it boasted that they were in

19 command of the operation.

20 The Prosecution Witness PW-4 testified that the information in

21 the document was not correct. Also, Witness PW-9 was asked about the

22 reference to the Mujahedin taking 60 prisoners. You recall that it was

23 put to him that this didn't refer specifically to the El Mujahedin

24 Detachment, and he replied: "That's right. This could be in reference

25 to any other army unit or, indeed, any other fighters who were involved."

Page 8976

1 And, Your Honour, of course, PW-9 was a witness who was in a

2 position to know the reality of what went on within the El Mujahedin

3 Detachment, and he was adamant that they didn't capture such a large

4 number of prisoners of war.

5 Dealing briefly with the Rule 92 bis evidence the Prosecution

6 relies upon. In PW-10's statement, the Prosecution notes that he

7 describes how ARBiH soldiers saved him from being taken away. They

8 mention in paragraph 328 of their brief.

9 Now, rather than supporting the Prosecution case, the fact that

10 this witness was not offered any information about where his father was

11 or any other prisoners conversely indicates that the ARBiH officers

12 present at the scene did not know who seized the VRS prisoners of war or

13 where they would be taken.

14 The other Rule 92 bis witness that the Prosecution relies on is

15 that of Enes Malicbegovic, where he states that he heard that the EMD had

16 a centre at 13 kilometres and prisoners of war were taken there.

17 However, Your Honours, if regard is had to Mr. Malicbegovic's statement

18 of 18 October 2007, what he, in fact, states is that: "I heard that the

19 EMD had a centre at the 11th or 12th kilometre, and the captured were

20 taken there, but this is only hearsay."

21 He goes on to state that: "Nobody in the military security of

22 the 328 Brigade tried to find out the fate of the captured POWs."

23 Also, in his other statement, dated the 18 January 2006,

24 Mr. Malicbegovic states: "I cannot remember that this Brigade IKM

25 received the information that more than 50 Serb POWs had been taken, and

Page 8977

1 I cannot remember that our service received the report sent by

2 Karahasanovic."

3 Your Honours, rather than call Mr. Malicbegovic as a witness to

4 deal with this issue, the Prosecution instead tendered him as a Rule 92

5 bis witness. As we set out in our closing brief, the evidence from the

6 other ARBiH witnesses and the EMD witness who came to testify amply shows

7 that there was no evidence to show that the EMD had captured a large

8 group of prisoners.

9 Your Honours, I will quickly deal with the forensic evidence.

10 The Prosecution claims that the remains of seven men exhumed near

11 Kamenica camp were identified. In our closing brief, we have explained

12 the shortcomings in that evidence.

13 While the Prosecution pre-trial brief claims that the remains of

14 only five men were identified from the Kamenica grave, in it's closing

15 brief, the Prosecution claims that a sixth body was found, allegedly

16 Zivinko Todorovic. However, Your Honours, if you look at the evidence

17 relied upon, Exhibit 644 and 655 -- 645, we would say that amongst that

18 evidence, a DNA report cannot be found and, therefore, there is no proof

19 that someone of that name was found there.

20 So, Your Honours, in conclusion, it is our position that the

21 Prosecution has failed to establish that the El Mujahedin Detachment took

22 the group of 51 prisoners and that they were taken and killed at Kamenica

23 camp.

24 Your Honours, I will very briefly deal with the issue of

25 sentencing and say a few words, if I may.

Page 8978

1 Obviously, the need for the Chamber to address itself to this

2 issue is contingent upon a finding of guilt, and our main submission is

3 that General Delic is not guilty.

4 My first point, however, relates to the Prosecution argument, in

5 its closing brief, by the fact that General Delic held the highest

6 military position in the ARBiH, that constituted an aggravating factor.

7 If you look at the Hadzihasanovic Appeals judgement, at

8 paragraph 230, that makes it clear that the position of authority or a

9 position of authority does not in and of itself attract a higher

10 sentence. It is only an abuse of that authority by a superior which

11 could be taken into account.

12 The evidence in this case makes it very apparent that

13 General Delic was not a man who abused his authority.

14 Secondly, Your Honours, and here I will have to take you back to

15 what happened just before the start of this case, where you will recall

16 that the Prosecution attempted to have General Delic's case sent back to

17 Bosnia and Herzegovina. There, it advanced a number of argument which we

18 referred to in our closing brief, and its primary submission was that

19 this case was not sufficiently grave to be tried before this Tribunal.

20 Now, Your Honours, they made that comment at the outset of the

21 case when the Prosecution could look at its case taken at its highest

22 point. Since then, we have had the substantial amount of evidence, and

23 we would say that the Prosecution's case did not improve. In fact, the

24 opposite is true.

25 In its Rule 11 bis motion, the Prosecution stressed that

Page 8979

1 General Delic was different compared to other accused appearing before

2 the Tribunal. And at the Rule 11 bis hearing, Mr. Mundis stressed that

3 there is a quantitative and qualitative difference between a military

4 commander who is ordering crimes and the commander charged under

5 Article 7(3). Your Honours, of course, we would agree with that

6 position.

7 Unlike many of the accused who appear here before this Tribunal,

8 General Delic did not plot or conspire to attack other states. He did

9 not order the legal military activities which brought misery and hardship

10 to innocent persons.

11 Your Honours, the reverse is true. He is a man who from the

12 first moment of taking up his position worked tirelessly to develop and

13 professionalize the Bosnian army, to bring stability to the organisation,

14 to bring uncontrolled groups within the system of command and control.

15 He dealt with rogue units in so far as his authority would permit him.

16 He introduced training for officers in the various branches of the army,

17 and he continuously emphasised the importance of complying with

18 international humanitarian law.

19 Your Honours, the evidence related to summer 1995 and onwards

20 shows that General Delic was heavily engaged in a process to bring peace

21 and stability to Bosnia and Herzegovina.

22 Your Honours, General Delic made a deep contribution to the peace

23 process in that country. It brought stability and it brought the end of

24 a nightmare to many millions of ordinary Bosnians living in that country;

25 and for that, we say that he deserves to be treated with decency and

Page 8980

1 leniency.

2 Your Honours, those are my submissions.

3 JUDGE MOLOTO: Thank you, Mr. Robson.

4 Any rebuttal, Mr. Mundis?

5 MR. MUNDIS: The Prosecution will have some rebuttal, Your

6 Honours, I would expect perhaps 30 to 45 minutes, if we could, and I

7 would perhaps suggest that we take a recess at this point in time.

8 JUDGE MOLOTO: We will take a break and come back at quarter to

9 11.00.

10 Court adjourned.

11 --- Recess taken at 10.10 a.m.

12 --- On resuming at 10.46 a.m.

13 JUDGE MOLOTO: Mr. Mundis.

14 MR. MUNDIS: Thank you, Mr. President.

15 [Prosecution Rebuttal]

16 MR. MUNDIS: Your Honours, we have just a few points to raise in

17 rebuttal.

18 I would like to start, however, by indicating a correction that

19 was pointed out by the Defence in Madam Vidovic's closing yesterday of

20 footnote 350 in the Prosecution's final trial brief should actually be

21 corrected. The footnote refers to Exhibit 65. That should read Exhibit

22 97. And perhaps, once again, I put together some PowerPoint slides.

23 That's clearly indicated.

24 If you take a look, Your Honours, at table 4 in the Prosecution's

25 final trial brief, and compare that to the entries in Exhibit 97, which

Page 8981

1 again is what the footnote 350 should be, we would submit that clearly

2 the names indicated on table 4 are reflected, in fact, in Exhibit 97 in

3 this slide, we would submit, demonstrates that point quite clearly.

4 But, again, footnote 350 in the Prosecution's final trial brief

5 should read Exhibit 97, rather than Exhibit 65.

6 While on this point, an issue was raised by my learned colleague

7 Mr. Robson this morning concerning the perpetrators or alleged

8 perpetrators of the crime in Bikosi. And I draw the Trial Chamber's

9 attention to a comparison of Exhibit 65 and Exhibit 97.

10 What we have down here is pulled up names that are listed on

11 Exhibit 65, a list of transferred soldiers to the El Mujahedin

12 Detachment. Those names which we've highlighted are names which also

13 appear on Exhibit 97, which, Your Honours will recall, is an exhibit from

14 February 1996, listing the personnel within the El Mujahedin Detachment.

15 And I raise this in the contest of comments made by Mr. Robson

16 this morning because with respect to entry number one, Ishak Aganovic,

17 and entry number 38, Zihmad Sejdic, Your Honours will recall those two

18 names were mentioned by the survivors of the Bikosi incident as being

19 among the group of people who came out of the Poljanice camp and were

20 responsible for the crimes in Bikosi.

21 And we would submit, if a quick search of the transcripts for

22 those two name, number one, Ishak Aganovic, and number 2, Zihmad Sejdic,

23 number 38 on the list, would clearly lead you to evidence that would

24 point to not only the alleged perpetrators of the event in Bikosi, but

25 also the fact that those two individuals were members of the El Mujahedin

Page 8982

1 Detachment as late as the end of the war. That is reflected on Exhibit

2 97 listing EMD personnel in that detachment.

3 Let me turn now to the next topic that we would like to draw the

4 Trial Chamber's attention to.

5 Both Madam Vidovic yesterday and Mr. Robson earlier today touched

6 upon the issue of faxes sent abroad by the El Mujahedin Detachment. And

7 at this point in time, we would simply like to draw the Trial Chamber's

8 attention both to what was said yesterday, on pages 23 and 43, with

9 respect to faxes being sent to Milan, but also to put fort the

10 Prosecution position with respect to any such faxes or intercepted

11 communications going from the El Mujahedin Detachment to sources outside

12 of the Republic of Bosnia and Herzegovina.

13 The Prosecution argues, Your Honours, that these faxes were

14 primarily propaganda tools which were designed to attract funding for the

15 El Mujahedin Detachment. And as a result, we would submit that they do

16 not possess the value to which the Defence would attach to them and has

17 urged the Trial Chamber to attach to them.

18 We based that upon the testimony of some of the witnesses who

19 have appeared before Your Honours. For example, PW-9 testifying on

20 17 April was asked: "We've seen today documents produced by the press

21 centre in terms of public relations aspect to be send abroad."

22 And he answered: "Yes, one could put it that way.

23 He went on, in respect to the bulletin that he was questioned

24 about that indicated a call to Jihad, to say: "The recipients of the

25 reports from the detachment passed the information on and conducted some

Page 8983

1 sort of propaganda as it were for the detachment.

2 He went on to say: "Let me give you an illustration which will

3 give you a clear idea of how this worked. In Saudi Arabia, there was

4 Abu Muaz who was in charge of raising founds and who received the reports

5 from the El Mujahedin Detachment. He used that information to visit

6 Sheiks and rich men, potential donors. He also brought along the video

7 recordings that we made in the detachment. It was also distributed, and

8 as a result of that, donations and funds flowed in.

9 We would submit, Your Honours, the fact that the El Mujahedin

10 Detachment sought support from abroad does not in any way impact upon the

11 control which the ARBiH exerted over that unit, because the purpose of

12 those reports in the sense of receiving funds from abroad and/or perhaps

13 encouraging other men to joined El Mujahedin Detachment and to enter

14 Bosnia from abroad were consistent with the war efforts directed by the

15 ARBiH.

16 These reports were sent both to raise money and for propaganda

17 purposes. That is the proper emphasise that we would submit needs to be

18 attached to these documents.

19 Again, the testimony of PW-9 on this point is particularly

20 important: "These funds that were being received from outside, what was

21 being done with this money or these funds?"

22 He answered: "The funds were used for purchasing ammunition,

23 weapons, food, clothes, equipment, whatever the El Mujahedin Detachment

24 needed, communications devices, vehicles, and so on."

25 "Question: All of these items that you have listed were being

Page 8984

1 used in order to advance the war aims?"

2 "Answer: Largely, to a great extent. For the most part, the

3 purpose was to advance the war aims."

4 If I could just briefly go into private session, Your Honours.

5 JUDGE MOLOTO: May the Chamber please move into private session.

6 [Private session]

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 [Open session]

21 THE REGISTRAR: Your Honours, we're in open session.

22 JUDGE MOLOTO: Thank you very much.

23 Yes, Mr. Mundis.

24 MR. MUNDIS: There was other evidence that Your Honours heard,

25 however, on the army directing the EMD's war efforts. Mr. Awad testified

Page 8985

1 about this. He was asked: "Who set the combat priorities for the

2 detachment?"

3 He answered: "It is logical that the priorities would be set by

4 the commanders, either of the corps or the operations group; that is, the

5 persons who had several units under their command, because the

6 El Mujahedin Detachment as a small units cannot determine where others

7 would attack, nor where they themselves would attack. So it is only

8 logical and normal for the people who are in charge of several brigades

9 or several units to plan and to determine the priorities ..."

10 Let's turn to Exhibit 1394.

11 The Defence have argued, and in referring to Exhibit 1394, as

12 indicating that the EMD turned down a number of operations.

13 The Prosecution would respectfully submit that in this aspect,

14 Exhibit 1394 is unreliable because the evidence has shown that during the

15 existence of the El Mujahedin Detachment, particularly with respect to

16 1994 and 1995, that unit failed to carry out combat on two occasions, in

17 the summer of 1994 and in November of 1994.

18 Again, Aiman Awad was asked about this and testified that there

19 was only one refusal to carry out an attack which occurred in

20 November 1994, and you see the reference to that on the screen.

21 The Prosecution, Your Honours, submits that the army of the

22 Republic of Bosnia-Herzegovina could and did rely on the El Mujahedin

23 Detachment. Yesterday, Madam Vidovic argued that the army couldn't count

24 on the EMD. We submit, with all due respect, that that's not correct.

25 The most important assignments in military operations during the relevant

Page 8986

1 time-period and which are the focus of this case were given to the

2 El Mujahedin Detachment. And we would submit that this demonstrates more

3 clearly than anything else that the army of the Republic of Bosnia and

4 Herzegovina could and did rely upon the El Mujahedin Detachment.

5 Again, Ali Hamad was asked a question by Judge Harhoff: "How

6 closely were the details arranged between you and the ABiH forces on the

7 technical level?"

8 Ali Hamad: "Us foreign fighters would always be in the first

9 strike. They would mostly ask us for help when they felt that they could

10 not liberate an area or an elevation by themselves."

11 One particularly striking element or attack that fits squarely

12 into this category were the operations concerning Paljenik which was, as

13 Your Honours will recall from the evidence and the site visit, an

14 extremely important feature in the overall campaign to liberate the

15 Vozuca pocket. And it was the El Mujahedin Detachment that was given

16 that task, a task which they successfully met.

17 The value and reliability of the El Mujahedin Detachment was

18 clearly proved by the time Operations Proljece 2 and Farz were executed

19 in July and September 1995.

20 With respect to Proljece 2, Exhibit 606 makes it clear that the

21 El Mujahedin Detachment is the primary leader in the upcoming task.

22 As I've indicated, and as the Chamber is obviously well aware, a

23 number of witnesses, including Mr. Hajderhodzic, Mr. Jusic, and Mr. Ribo

24 all testified about the importance of the Paljenik feature in the overall

25 campaign that was taken and undertaken in 1995.

Page 8987

1 Let me turn now to the issue of the late-President Izetbegovic

2 and the El Mujahedin Detachment.

3 Yesterday, Madam Vidovic made several references that would seem

4 to point to President Izetbegovic and his direct relationship or control

5 over the El Mujahedin Detachment, and you can see those references on the

6 screen in front of you.

7 We would submit that President Izetbegovic's decisions concerning

8 the army and its constituent units, including the El Mujahedin

9 Detachment, were informed by General Delic. You will recall the Defence

10 expert Mr. Cornish who was asked about this.

11 And he testified that: "If civil leadership is making decisions

12 about the use of armed forces, then it is fundamental and at least common

13 sense for that decision making to be informed by military expertise."

14 This is particular important, we would submit, in situations such as the

15 one that was present or the situation as it existed in the Republic of

16 Bosnia and Herzegovina during the war, when the extended War Presidency

17 included General Delic among its membership.

18 We would submit that true there is evidence before the Trial

19 Chamber that President Izetbegovic trusted General Delic. We have the

20 92 ter statement of Mr. Buljubasic to that effect. The Presidency

21 appointed him. He was the most influential person in the presidency

22 supporting Delic; that is, Mr. Izetbegovic.

23 As I've indicated, and as described more clearly in paragraph 50

24 of our final trial brief, General Delic was a member of the expanded

25 Presidency along with, obviously, President Izetbegovic.

Page 8988

1 Mr. Jusic testified about this as well. He was asked: "Apart

2 from the formal Presidency sessions, were there other meetings that you

3 were aware of that took place where members of the Presidency -- which

4 included members of the Presidency?"

5 "Yes, there were, and it wasn't just that I was aware of them;

6 everyone knew about them. These were meetings attended by certain

7 members of the Presidency, the president and usually the man in charge of

8 the army. Earlier it was Halilovic and later Delic."

9 We also know from evidence Your Honours have heard that when

10 Alija Izetbegovic visited army units, General Delic accompanied him.

11 There's also evidence from General Divjak that General Delic

12 communicated with President Izetbegovic on a regular basis, "probably

13 daily," testified General Divjak.

14 The Prosecution submits that the evidence supports the notion

15 that General Delic maintained indirect control over the El Mujahedin

16 Detachment through his authority over the 3rd Corps commander, and that

17 this control extended throughout the indictment period.

18 Yesterday, Madam Vidovic made some claims or argued that the BiH

19 army had effective control over the El Mujahedin Detachment, not

20 General Delic. We would submit that nothing in the evidence suggests

21 that General Delic did not exert command authority over the 3rd Corps

22 commander; and, of course, at the relevant time-periods in the

23 indictment, the El Mujahedin Detachment was a constituent unit of the

24 3rd Corps.

25 Again, Mr. Buljubasic testified that: "Relations between

Page 8989

1 General Delic and the commander of the 3rd Corps, General Mahmuljin, were

2 respectful and professional. They were the same as relations between the

3 general and any other corps commander or any other subordinate

4 commander ..."

5 The Defence have also argued, with respect to EMD compliance with

6 ARBiH orders, that the El Mujahedin Shura meat ultimate decisions

7 concerning the detachment.

8 We would submit that it was irrelevant that there was discussion

9 about combat orders or the disbandment of the EMD within the Shura;

10 rather, it is sufficient that the orders issued by the army of Bosnia and

11 Herzegovina were complied with by the El Mujahedin Detachment.

12 We would also submit, based upon the evidence of General Sead

13 Delic, that the Shura itself, the concept of the Shura, was not uncommon

14 in other ARBiH units.

15 He testified that General Brzina assisted him in establishing the

16 9th Muslim Brigade because there were references in that unit to a Shura,

17 and General Sead Delic testified that did he not know what the Shura was.

18 The Defence also are as part of the Defence theory concerning the

19 Islam Cultural Centre argued that Sheik Anwar Saban was the de facto

20 authority over the El Mujahedin Detachment, and this was the argument put

21 forth by Madam Vidovic yesterday.

22 The Prosecution submits that there is no evidence that

23 demonstrates that Saban disrupted General Delic's effective control over

24 the El Mujahedin Detachment; rather, the detachment complied with

25 instructions from the ARBiH. What do we base this on? Again, the

Page 8990

1 evidence. There was reference yesterday by Madam Vidovic to the issuance

2 of a fatwa. Well, PW-9 testified about that. And the evidence on this

3 issuance of a fatwa by Mr. Saban concerned a single incident relating to

4 elections in Bosnia and Herzegovina.

5 There is evidence that Saban complied with the orders issued by

6 General Delic. In relation to the disbandment of the EMD, Exhibit 365

7 reports that: "He pointed out at the end they would accept all decisions

8 of our political and military leadership."

9 Your Honours, this is my last opportunity to address you in these

10 proceedings, and it has been truly a privilege and honour to lead the

11 Prosecution team in this case, but also to work with all of the

12 professionals on Madam Vidovic's team, as well as the hard-working

13 members of the Chamber's staff and the registry.

14 Cases are rarely, if ever, lost as a result of the eloquence of

15 closing arguments, and this case is no different from most in that

16 respect. The Trial Chamber in this case has heard the evidence, it has

17 fully engaged the witnesses and the parties throughout the case, and as

18 the Trial Chamber retires to deliberate and reach the important findings

19 which it has the obligation and responsibility to make, the Prosecution

20 has no doubt that the Chamber will reach the correct conclusions.

21 Let me close, if I might, by commenting upon just a few of the

22 final arguments put to you earlier this morning by Mr. Robson.

23 Mr. Robson told you that General Delic was, and I'm quoting now,

24 "a man who from the first moment of taking up his position worked

25 tirelessly to professionalize the Bosnian army, to bring controlled

Page 8991

1 groups within the system of command and control. He dealt with rogue

2 units in so far as his authority would permit."

3 The Prosecution would ask that in considering this argument, that

4 you ask yourselves whether the actions of the accused in forming the

5 El Mujahedin Detachment are consistent with the notion of

6 professionalizing the Bosnian army. We would ask you, with all due

7 respect, to consider whether General Delic, in this case, used the full

8 strength of his authority to deal with rogue units.

9 Mr. Robson continued. He said this morning: "Your Honours, the

10 evidence relating to summer 1995 and onwards shows that General Delic was

11 heavily engaged in a process to bring peace and stability to Bosnia and

12 Herzegovina. General Delic made a deep contribution to the peace process

13 in that country. It brought stability and it brought the end of a

14 nightmare to many millions of ordinary Bosnians."

15 Again, we would ask the Trial Chamber to consider whether the

16 honours and awards bestowed upon the El Mujahedin Detachment by

17 General Delic's army are consistent with these arguments. Was his

18 appearance and his comments at farewell ceremony for the El Mujahedin

19 Detachment consistent with the off-stated goals of the army of the

20 Republic of Bosnia and Herzegovina for a multi-ethnic army.

21 The Prosecution urges the Trial Chamber to reach the only

22 reasonable conclusions based upon the totality of the evidence in this

23 case. The accused exercised effectively control over the Mujahedin from

24 Poljanice and then the El Mujahedin Detachment, a unit which he formed,

25 throughout the indictment period. He failed to prevent crimes from

Page 8992

1 happening, he failed to punish the perpetrators after being known or

2 being put on notice that crimes had occurred.

3 The accused is guilty of the charges set forth in the indictment;

4 and as a result both of the crimes and the position held by the accused

5 throughout the indictment period, the Prosecution urges a sentence of 15

6 years.

7 JUDGE MOLOTO: Thank you, Mr. Mundis.

8 Any rejoinder, Madam Vidovic.

9 MS. VIDOVIC: [Interpretation] Yes, Your Honours, definitely, and

10 thank you very much.

11 [Defence Rejoinder]

12 MS. VIDOVIC: [Interpretation] I will start with some of the last

13 observations Mr. Mundis made, related to the acts of the accused

14 regarding the El Mujahedin Detachment.

15 The Prosecution has just told us, and this is what it has been

16 saying right from the start, that General Delic is the one who formed the

17 El Mujahedin Detachment. Your Honours, let me remind you, once again,

18 about what we can see from the evidence.

19 Your Honours, we have two situations here that operated when the

20 El Mujahedin Detachment was established. The first element is -- the

21 first situation existed in the BH army and among the international

22 community that was trying hard to settle the situation in

23 Bosnia-Herzegovina. In controvertible evidence that you heard from

24 witness PW-3 and from General Divjak indicated that the international

25 community insisted that the Mujahedin should be put under control. The

Page 8993

1 international community insisted that -- on that in its contacts with

2 President Izetbegovic. You heard about that.

3 And it is beyond a reasonable doubt in light of those two

4 testimonies of those two Prosecution witnesses that the decision to set

5 up this detachment was made elsewhere. It was a political decision, and

6 General Delic did not have any authority over it. It was a decision made

7 by his superior who had cumulative powers. President Izetbegovic not

8 only had powers as the president of the Presidency, he also had powers as

9 the head of the Supreme Command, somebody who headed the Supreme Command

10 of the army of Bosnia and Herzegovina.

11 Not only that, President Izetbegovic had explicit powers

12 envisaged in Article 10 on the Decree on the Armed Forces - that's

13 Exhibit 22 - to represent the armed forces in context with both internal

14 and external elements.

15 So the decision to set up the detachment, or, rather, the order

16 to set up the detachment, is merely an order that General Delic relayed

17 further, and it stemmed from a decision made by his superior.

18 Your Honours, we devoted a large part of our brief to the

19 requirements that a decision of an accused must meet in order to be

20 relevant and taken into account in the context of his alleged effective

21 control.

22 And now I want to go back to what is the -- what is actually at

23 issue in this trial. Your Honours, you don't have in the dock the army

24 of Bosnia and Herzegovina or General Mahmuljin, the commander of the

25 3rd Corps. You have in front of you General Delic who was the commander

Page 8994

1 of the army of Bosnia and Herzegovina. And the question of all questions

2 in this case is whether General Delic had effective control, exercised

3 effective control, not whether General Mahmuljin had effective control or

4 whether BH army had or exercised effective control.

5 And while I'm on this issue, let me say one more thing, God

6 forbid should the Defence accept that at any point that the BH army

7 actually exercised effective control over the El Mujahedin Detachment.

8 This is -- this did not really come out that way in what I was saying, so

9 I want to stress that.

10 But let me now go back to the issuing of effective control as the

11 key issue here. Today, the Prosecutor tried to say that I was trying to

12 prove that President Izetbegovic had control over the detachment.

13 Your Honours, the gist of my comments yesterday was something

14 else. I said that the Prosecution, itself, talking about the

15 responsibility of General Delic, in paragraph 161, said that the

16 El Mujahedin actually negotiated with President Izetbegovic and then

17 General Mahmuljin actually carried out those orders.

18 Your Honours, the issue of effective control involves the

19 following elements: General Delic issues an order, and this order has to

20 stem from his own authority, and then his subordinates obey the commander

21 of the 3rd Corps, the commander of the 35th Division, and finally Abu

22 Maali as the commander of the El Mujahedin Detachment, and all the way

23 down to the actual persons who carried this order out. This is very far

24 removed from reality in this case.

25 The Prosecution drew your attention to this fact in the brief,

Page 8995

1 when they mention President Izetbegovic and say that he negotiated and

2 arranged things with the El Mujahedin Detachment and then some commander

3 actually carried out this out. Your Honours, this goes outside of the

4 chain of command. This is not part of the chain of command.

5 Yesterday, the Prosecution mentioned several times meetings at

6 different levels. They should serve as a marker of the existence of

7 effective control. Your Honours, effective control means that things are

8 done within the chain of command; nothing more and nothing less. The

9 moment the detachment commander, Abu Maali, if he really was subordinated

10 to the 35th Division, sidesteps the commander of the division and

11 arranges anything with the corps commander, at that point the chain of

12 command is in pieces and there is no control.

13 Your Honours, be that as it may, I would just like to remind you

14 of something that is very important when we're talking about effective

15 control. Effective control is clearly delineated in the jurisprudence,

16 for instance, in the Blaskic case that we ask not really touch upon all

17 that much. In that case, it has been made quite clear, evidence must

18 support or must show that the perpetrators are those who obey the orders

19 of the accused in question, not the orders of any other command. At the

20 point when it is established that there is a parallel chain of command,

21 there is no effective control anymore.

22 Your Honours, I say now that, in this case, it is not that the

23 Defence actually created this reasonable doubt about there being

24 effective control. We went one step beyond. The Defence has, in fact,

25 managed to prove that there existed a parallel chain of command and the

Page 8996

1 parallel chain of reporting.

2 Let me now go back to the documents that the Prosecution talked

3 about today, in order to tell you that you should not give much weight to

4 the documents in Milan.

5 Your Honour, as regards those documents from Milan that were

6 found in the institute in Milan, in Sheik Anwar Saban's office, I would

7 like to classify them in two categories. One category is the one that

8 the -- my learned friend Mr. Mundis talked about. These are the

9 bulletins originating from the El Mujahedin Detachment. But, Your

10 Honours, there is another category of documents that is very important

11 for this case. We're not talking about only bulletins from the

12 El Mujahedin Detachment. You saw in front of you military reports, pure

13 and simple, that had nothing to do with what witness PW [as interpreted]

14 was talking about. This PW-9 actually confirmed the accuracy of those

15 reports. He confirmed that those were military reports. So we have

16 bulletins, but we also have military reports.

17 Could we now please look at Exhibit 1201, page 3, of the English

18 version.

19 JUDGE MOLOTO: Am I the only one hearing noises?

20 MS. VIDOVIC: [Interpretation] Can we please have D001-1238. That

21 is the page in the Bosnian. That's for the accused to be able to follow,

22 D001-1238.

23 Your Honours, this is what I'm talking about. What you see here

24 is a fax to the Islam Cultural Centre in Milan. Look at this, Your

25 Honours. This is a report. This is a report on the battle at

Page 8997

1 Kajin Sopot. We have heard a lot about this. This is a detailed

2 military report about all of the aspects of the battle.

3 Can we please go to the next page.

4 Your Honours, this is no appeal to collect aid for the

5 El Mujahedin Detachment; this is a military report, pure and simple.

6 Could we please turn the page in the English. We would like to

7 see the signature. That's the next page.

8 Your Honours, the report that we have just seen, E-1201, is a

9 military report being submitted by the leader of the battalion,

10 Abu El-Maali, to Sheik Saban in the Islamic Cultural Centre. He is not

11 asking for anything at all; he is just reporting on the battle.

12 The next exhibit, 1389. This is the Proljece battle, Pocilovo

13 [phoen]. It's a pure military report. It is nothing more than that, and

14 it describes in detail the battle that took place. It starts with the

15 weather and concludes with the number of those killed in battle.

16 I'm sure you will remember - I'm not sure we have time to track

17 this down - but you remember the report on the dead and wounded, all the

18 reports being submitted to the Sheik Saban.

19 Therefore, it is simply not true, as the OTP would have you

20 believe, that the detachment was sending these reports in order to obtain

21 materiel assistance. That is a far cry from the actual truth.

22 Can we now please look at Exhibit 1390. This will help us

23 understand the role played by the Sheik Saban, 1390.

24 Before we see the exhibit come up on our screens, please allow

25 plea to remind you that the issue of appointing commanders to the unit

Page 8998

1 and within the unit is a key issue in terms of effective control.

2 If the BH army at any of its levels is simply unable to appoint

3 those commanders, if it is the Sheik who is appointing these commanders

4 and dispatching them from somewhere abroad, then, Your Honours, there can

5 be no talk of any sort of control at all. These are not appeals for

6 assistance. What this is is commanders being dispatched to Bosnia.

7 We're talking about page 3 in the English.

8 Your Honours, this is a another document from the Milan-based

9 institute. This is an intercept of a phone conversation between

10 Anwar Saban and Abdul Aziz, another person that we've heard a lot about

11 throughout these proceedings.

12 This document tells that the Sheik, Saban, is dispatching

13 commanders to Bosnia. Look at this, the first sentence.

14 Abdul Aziz: "Tell me, are there any lads over there leaving for

15 Bosnia?"

16 And then Anwar Saban replies: "I'm the one organizing their

17 departure. It is working well. I'm also deal with another matter. If

18 it works out, we'll be able to dispatch many people."

19 And then again: "Abu el-Haris," who you remember is one of the

20 commanders of the El Mujahid Detachment, "Abu el-Haris has called me from

21 Bosnia telling me that he needed several commanders along various front

22 lines."

23 It is obvious that the Sheik Saban is the one who makes decisions

24 regarding commanders.

25 You will also remember Document 1394. This is a document that

Page 8999

1 the OTP referred to a moment ago. There is no doubt that in this

2 document, the detachment is trying to justify itself by explaining that

3 they are not under the control of the army.

4 Even if we disregard this aspect for the moment, this is crucial

5 evidence, needless to say; but, even so, just look at the other portions

6 of this document. It should be easy enough for you, Your Honours, to

7 understand that the El Mujahedin Detachment, whenever there is an issue

8 that arises whenever any of the aspect of its activity is at stake, they

9 go to the Sheik.

10 They go to Saban, and they justify themselves and explain

11 themselves to him for the manner in which they work: We don't need any

12 rules or regulations for this. We don't need any laws.

13 When are justifications offered? Who are these justifications

14 ordered to? To one superior, and not just some imaginary person.

15 Your Honours, the Defence team has here pointed out the existence

16 not just of reasonable doubt. It is beyond reasonable doubt that we have

17 succeeded in proving this. We took the burden of proof upon yourselves.

18 We shouldered the burden of proof. Why? The OTP had been sitting on all

19 this evidence for years. They didn't dare accuse General Delic, and they

20 wouldn't if they knew there was such evidence that existed.

21 They left us in a situation where we had no choice but to

22 shoulder the burden of proof, which have done successfully to the very

23 end, if I may say.

24 The OTP have simply failed to prove beyond a reasonable doubt

25 that General Delic in any way, directly or indirectly, controlled this

Page 9000

1 unit. As to the OTP's allegation that Delic was indirectly in control of

2 the El Mujahedin Detachment, well, let me tell you this. Firstly,

3 throughout this trial, the OTP have been behaving as though there was no

4 indictment, to start with. Firstly, they accused General Delic of

5 ordering Proljece 2 operation in July. Secondly, of ordering Operation

6 Farz. Thirdly, of having been in command of those operations. And,

7 fourthly, of making use of the El Mujahedin Detachment for those

8 operations.

9 Your Honours, quite simply, none of this is true. General Delic

10 never ordered those operations. General Delic was never in command of

11 those operations. If you look at the theories that the OTP have been

12 offering for two days now, General Delic is suddenly informed that the

13 lines have shifted. But this is very far from being in command. It is a

14 far cry for being in effective control.

15 Your Honours, the OTP must establish some sort of a nexus between

16 the accused, on the one hand, and the developments that actually occurred

17 and that he stands indicted for. There is no nexus, and we need to talk

18 about the developments described in the indictment, not something else.

19 Based on what Mr. Mundis, my learned friend, told you a while

20 ago, Rasim Delic might as well be responsible for anything at all that

21 happened within the area of responsibility of any of the BH army's units.

22 Yes, he was at the head of the General Staff. Yes, the General Staff was

23 a body - in terms of regulations, I mean - that was in charge of the

24 corps commanders. But international humanitarian law makes him in no way

25 responsible, and the requirement is proof that he had effective control,

Page 9001

1 and they just failed to prove that, and they certainly didn't prove that

2 he exercised effective control through the 3rd Corps commander. No.

3 When all of this was going on, was it conceivable that he was in some

4 sort of a chain of command to do with the El Mujahedin Detachment? If

5 so, he would certainly have been resubordinated to the commander of the

6 35th Division as the very least. That would have been the situation

7 de jure, resubordinated to the 35th Division. The situation being what

8 it was General Mahmuljin had nothing whatsoever to do with that. The

9 3rd Corps had been resubordinated. Fine.

10 General Delic's first subordinate would not have -- even he would

11 not have been the one to be in effective control or to effectively report

12 to General Delic on what was going on.

13 Your Honours, I'm wrapping up. I'm going to talk about the

14 reports. This is an essential aspect of effective control. Reports on

15 this unit, on those developments, should have reached General Delic.

16 They ought to have reached General Delic in terms of him being informed

17 about the activities of that unit, and especially being informed about

18 the fact that that unit was involved in this or involved in that.

19 Your Honours, we have gone through mountains of documents, the

20 summaries, the reports, making perfectly clear that any combat reports

21 were being sent to Kajin -- Kakanj, the Kakanj command post. They would

22 be summed up there and then summaries forwarded to Sarajevo to

23 General Delic. Two or three words; no more, really.

24 Your Honours, not only was the situation like this. According to

25 international humanitarian law, you are responsible for reviewing the

Page 9002

1 situation that the accused was facing at the time. Look at what was

2 going on in July. You saw the evidence, didn't you? Not only did he

3 receive nothing at all from the El Mujahedin Detachment, not only did

4 nothing ever reach Sarajevo. Even if it had, Your Honours, Rasim Delic,

5 the man, the general, at the time, was at a conference in Croatia, in

6 Split, Croatia. That has been proven by documents beyond reasonable

7 doubt.

8 After that, this man was in command of the Sarajevo operation.

9 He was extremely busy with this situation that he to deal with, the

10 dreadful situation in Sarajevo. You saw the video-clip yesterday, Your

11 Honours, the video showing the Sarajevo victims. That was what General

12 Rasim Delic was trying to deal with. He was trying to the blockade

13 lifted so that hundreds of thousands of Sarajevo's inhabitants might

14 live. That was the struggle that he was facing.

15 Just think about it for a while, Your Honours. Is it realistic

16 to imagine Rasim Delic keeping track of thousands of small factions and

17 groups and units facing the situation that he was facing. He was simply

18 unable to receive any sort of information like that in July, nothing at

19 all about the El Mujahedin Detachment, let alone, Your Honours, how

20 ludicrous is it to claim that General Delic would have been in the

21 situation at the Kuala Lumpur conference to be on the receiving end of

22 information from Bosnia and exercise any sort of control over what was

23 going on thousands and thousands of miles away in Bosnia. This is

24 entirely ludicrous. It is entirely inconceivable. There is the

25 time-gap, after all. And then I know the Chamber understands that the

Page 9003

1 assistance being shipped into Bosnia by Islamic countries was a crucial

2 matter for the Bosniaks' survival. This is no longer a matter of the BH

3 army. This is no longer a matter of the BH army command. This was a

4 matter of survival. This was a matter of ensuring the survival of

5 hundreds and thousands of Muslims who were there, Muslims and others who

6 had, up to this point in time, been killed, persecuted, raped, and so on

7 and so forth. Try to understand: This is what Delic was busy doing at

8 the time. He was trying to come up with aid. He was trying to come up

9 with some help from the international community to have the blockade

10 lifted from these unfortunate towns and cities that were under siege.

11 You need to keep in mind the situation that the accused was facing at the

12 time, the accused himself. That is what international justice expects

13 from you.

14 There is another thing that is very important as far as Operation

15 Farz is concerned, Your Honours, and we have proven this beyond

16 reasonable doubt. He was being represented by General Hadzihasanovic at

17 the time. We have also proven that any reports to do with Operation

18 Farz -- that no reports to do with Operation Farz were ever sent to

19 General Delic. They were being sent to President Izetbegovic directly

20 and no one else. These are the facts of this case. These are the facts.

21 Again, Your Honours, we move that Rasim Delic be acquitted on all

22 counts of the indictment.

23 Last but not least, we would like to thank the Chamber, for its

24 patience, understanding, and cooperation. Likewise, our heart-felt thank

25 you goes to our learned friends from the OTP.

Page 9004

1 Thank you.

2 JUDGE MOLOTO: Thank you very much, Madam Vidovic.

3 Any questions.

4 [Trial Chamber confers]

5 JUDGE MOLOTO: Thank you very much.

6 That brings us to the conclusion of the closing arguments. The

7 Chamber will now retire for deliberations and in due course will convene

8 the Court for purposes of delivery of judgement.

9 Court stands adjourned sine die.

10 Cour adjourned.

11 --- Whereupon the hearing adjourned at 11.43 a.m.,

12 sine die