Tribunal Criminal Tribunal for the Former Yugoslavia

Page 13049

1 Friday, September 20 2002

2 [Open session]

3 [Motion Hearing]

4 [The accused entered court]

5 --- Upon commencing at 11.33 a.m.

6 JUDGE ORIE: Madam Registrar, would you please call the case.

7 THE REGISTRAR: Case Number IT-98-29-T, the Prosecutor versus

8 Stanislav Galic.

9 JUDGE ORIE: Thank you very much, Madam Registrar.

10 Good morning to everyone after a long period of approximately six,

11 seven weeks. I hope that everyone has found during this time - partly

12 holidays but partly hard work - found what he expected to find during this

13 period of time.

14 Good morning to you as well, General Galic, and to the assistant

15 of the Defence team. Good morning. I am glad to see you all here.

16 The order of this morning will be that we first hear the parties

17 on a motion for judgement of acquittal filed by the Defence on the 2nd of

18 September. A response has been filed by the Prosecution on the 16th of

19 September, together with a -- together with an authorisation for an

20 extension of a length limit.

21 I would like to leave all issues that are not directly related to

22 this motion for the Status Conference to be held later on, so only if it

23 is of vital importance for the hearing of the motion that the parties can

24 raise issues, but otherwise they should wait until we have the Status

25 Conference later this day.

Page 13050

1 May I remind the parties that the motion was confidentially filed,

2 so that as soon as any of the parties would touch upon a subject which is

3 confidential, that they ask for closed session. Of course, I cannot give

4 any forecast of what I -- what the Chamber could expect the parties to --

5 what issues to raise. But may I ask you to keep that clearly in mind that

6 no mistakes are made. It has been scheduled that the Defence gets not

7 more than one hour to make all the submissions it wants and then the

8 Prosecution another half an hour.

9 I hope that the parties will accept that the Chamber has read

10 carefully the motions and looked at a lot of sources indicated in the

11 motion and in the response.

12 Therefore, Ms. Pilipovic, may I invite the Defence to start first.

13 MS. PILIPOVIC: [Interpretation] Good morning, Your Honour. Good

14 morning everybody. Thank you, Your Honour. I would like to inform the

15 Chamber that, as you have stated yourself, Your Honour, in accordance with

16 Rule 98 bis, the Defence -- the Defence received the Prosecution's reply

17 to its motion two days ago. And, therefore, the Defence has agreed that

18 my distinguished colleague will be making submission on our behalf.

19 JUDGE ORIE: Then, Mr. Piletta-Zanin, please proceed --

20 THE INTERPRETER: Microphone, Mr. President, please.

21 JUDGE ORIE: -- but before giving you an opportunity to make any

22 submissions, I would like to have my laptop connected. I do not see any

23 transcript on it. Could I have a test on whether the transcript appear.

24 Could we have another test whether the transcript appears on my --

25 yes, there we are. I apologise for the delay.

Page 13051

1 MR. PILETTA-ZANIN: [Interpretation] Mr. President, if I may ask

2 the assistance of the technician who is just leaving [In English] I am

3 having the same problem. I don't know what it is.

4 [Interpretation] With your leave, of course, Mr. President.

5 JUDGE ORIE: Yes. Yes. If the --

6 MR. PILETTA-ZANIN: [Interpretation] Thank you.

7 JUDGE ORIE: If all the technical aspects are functioning, then,

8 please proceed, Mr. Piletta-Zanin.

9 MR. PILETTA-ZANIN: [Interpretation] Thank you very much, indeed,

10 Mr. President and Your Honours.

11 The Defence doesn't doubt that each person here has had the

12 opportunity, not perhaps all the time, but certainly the opportunity to

13 read and peruse both submissions of both parties. We received, I believe

14 it was on the 17th of September - so that was three days ago - the

15 response of the Prosecution.

16 I would like to thank your Chamber for giving us the opportunity

17 to respond to the response because I believe that one of the objectives of

18 the session today is to respond to some of the arguments that were raised

19 by the Prosecution, with the objective of clarifying certain matters and

20 the situation. And the only thing that I can say is that the situation is

21 very far from being cleared today.

22 Now, having said that - I had the opportunity to say once, I am

23 not quite sure at which session, but I do remember it clearly - the truths

24 that you do not say and I believe that, Mr. President and Your Honours, in

25 this file, the silence or rather the unwillingness to see the things

Page 13052

1 clearly, that will be the worst of things. And the best way that the

2 truths that we should be speaking about truly become -- become venomous

3 and dangerous.

4 The first of the points that should be examined is obviously a

5 specific notion which is that of proof. And what is certainly been clear

6 to everyone in the proceedings is the fact that -- regarding the facts

7 that should be the same when we are talking about several witnesses who

8 came to testify here before the Chamber. Well, very often we had more

9 than one version when we didn't have completely contradictory versions, in

10 fact, unreconcilable versions.

11 Just one example and the simplest example would be the technical

12 aspect. In Markale, we have a fin that was completely embedded in the

13 hard soil, and one expert said that this was perfectly possible, when we

14 are talking about residual speed from a technical point of view. And then

15 another expert basing himself on military experience, and re-examined by

16 your Chamber, categorically excluded this possibility 100 per cent.

17 Now, after many months, when we come to this conclusion that the

18 most important fact cannot very often be clearly established, clearly

19 defined, clearly known, than the proof -- the question of examining the

20 proof is being stated. In other words, in such situations, whereby, to

21 what would your Chamber give more weight: To the fundamental notion of

22 doubt or to that which is currently what the Prosecution is forwarding,

23 which is the insufficient element to bring your Chamber towards a feeling

24 of sufficient, to allow your Chamber to convict. So these are the two

25 main questions that we are asking today -- that are being asked today.

Page 13053

1 Specifically, Mr. President and Your Honours, this difficulty, and

2 I was going to say purely factual difficulty is made even greater by

3 another fact, which is simply the breakup of testimonies because --

4 breakdown of testimonies apart from their overabundance, which means that,

5 as a general rule, we would not be able to keep in mind one single

6 testimony, and to say, This testimony proves this, therefore, we keep it

7 in mind because we know that we also have many other testimonies that are

8 saying other things. And one would have to do a balancing act, not only

9 in view of the testimonies itself, but all of the totality of these

10 elements of the truth, in relation to the entirety of the proceedings.

11 Now, I don't know how we can do that without losing the sight of the

12 principle point, which is the doubt which should benefit the accused.

13 What I have just said, Mr. President and Your Honours, certainly

14 is also valid for what we call direct proof, if there are any, as well as

15 for indirect proof -- indirect evidence, circumstantial and direct

16 evidence, and what has been perfectly interpreted into English because we

17 have these two notions, these two notions of evidence.

18 JUDGE ORIE: Mr. Piletta-Zanin, if you allow me just to make one

19 short observation. There seems to be a great difference between the

20 position of the Defence and the position of the Prosecution in respect of

21 the tests to be applied under Rule 98 bis. I take it that this will be

22 part of your argument as well.

23 MR. PILETTA-ZANIN: [Interpretation] In -- up to a point, yes,

24 Mr. President.

25 I am going to go on about the systematic character, as an example,

Page 13054

1 of what the Prosecution defined as being a campaign. What I am going to

2 say will also be valid for the cases, the sniping incidents, as well as

3 for the shelling incidents.

4 When we look at the Prosecution's response, particularly item 7,

5 and when the Prosecution response to a position of the Defence which says

6 that your own figures, as established by your expert Tabeau, show the

7 opposite of what you are saying because the figures keep going down.

8 Immediately after General Galic became commander and not the opposite, and

9 therefore, one of the Prosecution's arguments, for instance, is to say,

10 yes, perhaps. But this because there were barricades that were set up and

11 because there were measures were undertaken so that the funerals would

12 take place at night.

13 Now, I have to respond to this argument and I believe that it

14 lacks weight. Why is that? Because if truly -- if there had been a

15 campaign of bombardment, the Defence doesn't contest that there was

16 firing. But if there has been a bombing campaign, what would be the

17 difference? We know that the mortars are so-called ballistic weapons.

18 They could reach a target behind a building or behind any barricade. It

19 is not the erection of several containers or several lorries that would

20 seriously provoke a cessation of a campaign. The argument, the way it was

21 given to us here by the Prosecution, is a little bit a demonstration of

22 the fact that there was no campaign, there was no bombing campaign.

23 And I believe, among other things, that the Prosecution could have

24 recognised, as they did for a case in a sniping incident, the Prosecution

25 could have kept certain testimony; some military personnel who said that

Page 13055

1 in fact General Galic had given orders to prevent his troops from firing.

2 We cannot, at the same time, prevent the troops from firing and launch a

3 campaign; it is completely contradictory. We have here two types of

4 situations that are perfectly antonymic. However, I almost completely

5 agree with the Prosecution when they say that we should look at the

6 determining proof as a whole.

7 This taking evidence as a whole, we cannot examine it in an

8 isolated manner. I am referring to a quote in the response, item 12, We

9 cannot retain, in an isolated manner, one single testimony and play it off

10 against other. There should be a weighted mechanism, and this mechanism,

11 if it is taken to its term, cannot but come to a very simple conclusion,

12 that is saying that materially, the effective evidence of culpability, or

13 guilt, has not been produced.

14 Mr. President and Your Honours, as for the problem of terror, we

15 have to link this question to the knowledge that the witnesses had, not

16 only their personal knowledge, but also their actual knowledge of the

17 military situation in Sarajevo at the time. It is incontestable and I

18 believe that this was demonstrated that in Sarajevo at the time there were

19 many legitimate military targets in Sarajevo.

20 I believe that we could all say that these legitimate targets

21 could, therefore, be targeted during a military effort by one or the other

22 side. However, it is obvious that the civilians that happen to be there,

23 and who are incapable of knowing where such-or-such targets were, because

24 they were secret targets, on a psychological level they would be suffering

25 effects of shelling or bombing, as they happen in an area, because that is

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Page 13057

1 where they are, that is where they live, that's where they spend their

2 time. But this fear that they had and that they had expressed is not

3 necessarily the result of an illegitimate act of a firing, which would

4 have been unlawful. This is, unfortunately, a natural consequence of what

5 was happening in Sarajevo, and we have to remind ourselves, this was a

6 civil war in an urban setting.

7 I believe that we cannot deny that a civil war in an urban setting

8 would naturally produce terror, whoever happens to be there, and certainly

9 would have very good reasons to suffer from this terror, from this fear.

10 But one would have to prove the will, hierarchical will, of the accused to

11 use this fear, this terror, as means -- as military means against the

12 population. And this -- I believe, this evidence has not been put

13 forward.

14 And this -- why I think that because evidence can be brought

15 directly, but what we want to prove can also be dismissed through other

16 considerations. And these are considerations that I would like to remind

17 you of. I did not find an answer of the Prosecution to this, and this is

18 the fact that if General Galic had really meant to systematically shell,

19 he would -- he had all the cards in his hands. Everybody knew in Sarajevo

20 that the distribution arrived every fortnight, the aid, distribution of

21 aid, everybody know knew that they arrived in lorries. And, therefore,

22 everybody seeing the lorries arrive in such-and-such a neighbourhood,

23 would be able to think that there is distribution of aid in that

24 neighbourhood, in that area. And everybody would know that the telephone

25 lines worked and that surprisingly information during wartime circulate in

Page 13058

1 this manner and it continued on for a long time.

2 Now, what the Prosecution was supposed to do, and they could have

3 done it was to produce all the sit-reps, all the UNMO reports in order to

4 demonstrate that each month or every fortnight, each distribution of aid

5 was systematically bombed, shelled. No, this was not done. There was

6 only one case, one single case which was discussed, produced, and

7 demonstrated. But there was no other evidence where systematically one

8 was able to hit a large number of people.

9 When we know - with what the Prosecution tells us - that

10 technically speaking, that is, on the level of weapons, practically, on

11 level of infrastructure, and theoretically - that is, in terms of intent -

12 the army could have each time attacked these events, but they didn't do

13 it. And here, there is a weighty argument, I believe, to demonstrate that

14 the thesis of accident has to be taken into account and would have more

15 weight against a strategic will.

16 Therefore, the link that we -- that is made to the terror is the

17 following: Any shelling naturally will cause terror. However, this

18 terror was not a weapon of war. And I will give you proof, and this is a

19 very far-fetched proof. This is about what was called in medical terms as

20 broken faces, or the bent men or the bent men, the soldiers of the "Chenin

21 des Dames" or others who suffered bombing for a long time developed a

22 syndrome that was known as a syndrome of a bent man. These were people

23 who, following the war, were not able to walk erect because they were

24 afraid of shelling. And this syndrome or such symptoms were never

25 encountered in Sarajevo. And this element, seems to me, an additional

Page 13059

1 one.

2 So for the Defence, there is no deliberate attack of civilians, as

3 far as Defence is concerned, although it is also evident that the

4 civilians have suffered. And we have to remind ourselves, Mr. President

5 and Your Honours, that this war was wanted by one party only, it seems.

6 This is the party which refused the peace.

7 Another argument is surprising for the Defence, and this is due to

8 the absence of written evidence of documents. The Defence says that --

9 maintains that General Galic never, neither did any of his officers, issue

10 unlawful orders. The response of the Prosecution to this is that: Of

11 course he didn't do it because it is unlawful. But then -- and this is

12 where things become interesting -- can we seriously imagine someone who,

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22 MR. PILETTA-ZANIN: [Interpretation] Fine.

23 JUDGE ORIE: [Previous translation continues]...measures. So,

24 Madam Registrar, would you please prepare a redaction. Of course, you can

25 discuss it, but then in closed session.

Page 13061

1 MR. PILETTA-ZANIN: [Interpretation] We will have to move to closed

2 session. Now, please.

3 JUDGE ORIE: The Chamber would prefer that, if possible, not to

4 turn into closed session, open session again. So, if you have more issues

5 that would have to be dealt with in closed session, then perhaps we could

6 concentrate then --

7 MR. PILETTA-ZANIN: [Interpretation] Absolutely. So as to arrange

8 time, how much time do we have left?

9 JUDGE ORIE: I would say approximately a little bit more than half

10 an hour. You started just before quarter to 12.00.

11 MR. PILETTA-ZANIN: [Interpretation] So can you wake me up five

12 minutes before the deadline.

13 JUDGE ORIE: Yes.

14 MR. PILETTA-ZANIN: May I proceed?

15 JUDGE ORIE: Yes.

16 MR. PILETTA-ZANIN: [Interpretation] So we shall move back to these

17 issues and to others when we are in closed session.

18 I am referring now to item 33 in the Prosecutions response and

19 arguments in order to show the alleged responsibility of General Galic.

20 And they base their arguments on reasoning that is technically just and

21 fair, but fails to lead to any conclusion because of the file. And this

22 structure, the number of acts is mentioned; the number, identity and type

23 of troops involved; the logistics involved; the widespread occurrence of

24 the acts; the technical temper of operations; the modus operandi of the

25 similar illegal acts; the officers and staff involved; and the location of

Page 13062

1 the superior at the time.

2 The first thing to do, Your Honours, is to say that the

3 Prosecution has failed to produce evidence as to the number of acts. It

4 is not enough to say that there was shelling in town, which caused

5 victims. You have got to go further than this. Indeed we know that there

6 are lawful targets in town, so you have got to go further. They had to

7 adduce evidence on more than those five incidents that we shall come back

8 to later on. And more importantly, the thing that had to be demonstrated

9 was that the shelling was really the intent and will expressed to hit

10 civilian targets, whichever they may be, and that it was not the result of

11 collateral damage or misfiring or firing errors.

12 I was in Sarajevo only last week, this very week, indeed on

13 Monday. And the thing that struck me most -- I was about to say that

14 moved me most -- was this: In Stari Grad, in the Old Town of Sarajevo, I

15 did not see one single of the old minarets, of the old stones, that would

16 have been hit by a projectile. Not one single minaret has been erected

17 again. Not one single copper-covered roof was hit. Not a single steeple

18 was brought down. But I said to myself, If you were a gunner, if you were

19 so incredibly accurate, as the Prosecution would claim, wouldn't it be a

20 perfect target to have a Catholic steeple, if you are not a Catholic, or a

21 minaret, of course, a Muslim minaret, if you are not a Muslim person?

22 Wouldn't it be a nice target? And indeed the Prosecution did not content

23 in its case, that this highly symbolic buildings would have been taken as

24 targets. We may have an opportunity to see this in Sarajevo, but I know

25 that some of us have been there already. And we know that the minarets

Page 13063

1 are, there that they were not hit, whilst they were supposed to be the

2 most obvious targets to anybody who would have this in mind. So that is

3 the first thing I wanted to state.

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24 MR. PILETTA-ZANIN: [Interpretation] Thank you very much,

25 Mr. President.

Page 13067

1 JUDGE ORIE: Just wait -- we are in open session now.

2 MR. PILETTA-ZANIN: [Interpretation] Thank you, Mr. President. I

3 will now deal with this and I will take this into account in the six or

4 seven minutes that I left to me.

5 Another surprising thing in the Prosecution's submissions is that

6 they say there may have been mobile mortars - this was shown through much

7 testimony - and that there were such mortars. This was not a legitimate

8 reason to open what is called a counter-battery fire. This is wrong.

9 This is absolutely wrong and untrue. It shows either a will not to see

10 the facts as they are, or the will to hide them, which is no better.

11 Military specialists came to tell us many times that if you have

12 such fire then the response is admissible. Whether the mortar is a mobile

13 mortar or not, it is up to the returning fireman to try and locate the

14 mobile target as best as possible, but it can be hit even if it is

15 mobile. And it would be military heresy and also legal heresy, not to say

16 so. This alone, the number of mobile mortars, as admitted by many, this

17 alone explains why there were -- there was much firing in a civil area

18 that may have caused civilian victims, but as a response, was a totally

19 legitimate and lawful act. Failing to see this would be a mistake.

20 And to say in one's stride that the Serbian Army, whenever there

21 was firing from the area of the Kosevo Hospital, which I went to see this

22 week; it is still a major hospital complex. If one were to claim that the

23 firing of which we know, that it was basically always a response to the

24 fire open from the Kosevo Hospital, aimed at directly hitting the

25 hospital, just as a punishment, to claim such a thing could be building a

Page 13068

1 sandcastle. It is to build something out of nothing. Nothing shows this,

2 nothing demonstrates this, and this is a pure fairytale from the

3 accusation. You can't begin to say that we have -- we can believe any

4 kind of evidence has been adduced if you proffer this type of claims. And

5 this is just one example to show how the entire Prosecution case has been

6 set up.

7 There are some arguments that will be mentioned in closed

8 session. One of the arguments brought forward by the Prosecution has to

9 do with the alleged knowledge that General Galic had or should have had.

10 And the argument is this: Anyway, even if the intelligence channels had

11 failed to function, General Galic knew about this through international

12 media. So this is the last resort argument, invoked by the Prosecution.

13 Since it was said by the international media General Galic should

14 be convicted, it boils down to this. I shall not name anybody, but we

15 know, all of us, that we had very many witnesses, and these were not

16 biased witnesses, they were neutral witnesses, they were major witnesses,

17 specialist ones. And they came to testify to confirm before you that the

18 media had been manipulated. And I am not naming anybody, but even the

19 media could be used as a weapon of war. And we -- if we have to rely on a

20 weapon of war to convict General Galic, nobody, at least on the Defence

21 side, would call this justice.

22 Last but not least, I shall focus on the five shelling incidents.

23 There are tremendous contradictions in the Prosecution response and they

24 show how fragile the whole case is. In the Prosecution's view, the

25 gunners were incredibly accurate in their firing, and this allegedly made

Page 13069

1 it possible for them to avoid civilian targets. And if there were

2 civilian targets and civilian victims, in the Prosecution's reasoning,

3 this was done with an intent. And to support this, in the very same

4 document, the Prosecution quotes somebody who precisely claims that a

5 mortar is not a precise weapon. Therefore, mortars should not have been

6 used in town.

7 And the major question that is going to be raised is basically a

8 factual one: Is it or not possible to use a mortar? In this respect I

9 remember one question that the Trial Chamber put -- it doesn't matter to

10 whom it put the question -- but it was to a professional, a career

11 military man. And the question was this: If the headquarters were in the

12 lower storeys of floors or in the basement of buildings, what would you

13 hit them with? Well, they mentioned a major more important calibre than

14 just a mere rifle. And this shows, and this prompts the answer or the

15 understanding that we are talking about mortars.

16 So five examples brought by the Prosecution to show the absolute

17 guilt and responsibility of General Galic. And I am going to review them,

18 starting with the first one, the one that is sometimes mentioned, as the

19 "football incident." I told you I went to Sarajevo this week because I

20 wanted to see I wanted to understand. I took some photographs, and I took

21 a photograph of this incident. I have it before me. Ten years later,

22 this photograph shows -- I will circulate them if you wish. They are in

23 black and white. I am sorry for that. They show me where the trenches

24 were located.

25 JUDGE ORIE: Mr. Ierace.

Page 13070

1 MR. IERACE: Mr. President, I have an objection.

2 I think on three previous occasions during his address,

3 Mr. Piletta-Zanin has shared with us his observations last week in

4 Sarajevo. That is not evidence, however, I have not objected assuming

5 that it would be taken appropriately by Your Honours. But now we go

6 another step. And my friend purportedly holds in his hand that he said he

7 took last week. And no doubt, even if he does not circulate them, as he

8 said he is prepared to do, he will still refer to what he saw last week.

9 It is now abundantly appropriate, Mr. President, in my respectful

10 submission, that the Defence be precluded from seeking to introduce

11 evidence in this form from the bar table, that is, what Mr. Piletta-Zanin

12 tells us he saw last week. If need be, I can go into reasons, but perhaps

13 that is not necessary.

14 [Trial Chamber confers]

15 JUDGE ORIE: The objection is sustained. Mr. Piletta-Zanin, the

16 motion deals with an acquittal on the basis of the evidence presented by

17 the Prosecution until now. If you wish to open already the Defence case

18 by presenting evidence that night, even be contradictory to what you seek

19 in your motion. Please proceed.

20 MR. PILETTA-ZANIN: [Interpretation] Things are very clear. Thank

21 you very much for that, Mr. President. Regardless of what I saw myself, a

22 witness came to tell us that there were trenches next to the parking lot.

23 This has not been challenged. And I can tell you, they are there, they

24 exist. Not only do they exist, but they are very close indeed --

25 MR. IERACE: I maintain my objection, Mr. President. In the face

Page 13071

1 of your ruling, my friend persists.

2 JUDGE ORIE: Mr. Piletta-Zanin, whether they do exist or not is

3 for the Chamber to assess on the basis of the evidence presented. I take

4 it that you are very much in favour of that evidence that would or could

5 establish the existence of trenches. But your personal experience is not

6 at stake.

7 MR. PILETTA-ZANIN: [Interpretation] Very well. I do understand.

8 Still there are trenches. And regarding this incident, it is a fact that

9 in these trenches, there used to be soldiers. The distance between the

10 trenches and the parking lot is such that a firing error is perfectly

11 possible.

12 On the other hand, if one were to admit that the firing originated

13 from the Serbian side, what is the state of mind of soldiers -- let's

14 assume the soldiers are under the order of General Galic, what is their

15 state of mind when they know that the civilians were instructed not to

16 gather in large groups and that they can hear shouting behind buildings

17 some distance away from trenches where firing originates from, and which

18 are lawful targets? In this hypothesis, it is perfectly possible to have

19 an error. Not only it is a thinkable thing, but it is also an acceptable

20 one. It is not only acceptable, further than that, when you weigh out the

21 positions, it becomes apparent that the doubt must prevail.

22 Second incident coined as the "waterline incident."

23 Investigations showed that this incident on the one hand took place

24 basically on the front line, that it was at any rate within the military

25 area as technically defined being some 500 to 600 yards in depth, and that

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1 there were major military objectives in the neighbourhood. There were

2 military objectives, but in addition to that, there were a large number of

3 troops building military objective which was a relevant one, in other

4 words the Dobrinja tunnel.

5 In this instant case as well, if it had wanted to show the

6 systematic nature of such attacks, the Prosecution could have produced all

7 the sit-reps issued by the UN forces, could have listed them for us. If

8 it didn't choose to do so, it is not because there is lack of personnel on

9 the Prosecution side it is not that this is not a mission that could be

10 carried out.

11 Alipasino Polje here too, of course, this is a very sad event,

12 as they all were, but what is known is this: Alipasino Polje was an

13 important centre -- weapon factory site. This is where the mortars were

14 made, that had been recovered and the metal of which had been melted.

15 That is where you had the operational command and control site and that is

16 where you had a Croat unit, the Kulin Ban unit. This is the proof of

17 military movement, the intent to destroy mobile or fixed targets. And

18 once again, the fact that the firing was happening in an area that was

19 very close to a place where a lot of military objectives were

20 concentrated, is an additional factor that will have to be retained "in

21 favorem," "in favour of the accused," and in order to maintain the notion

22 of doubt.

23 I have already mentioned humanitarian aid. The same

24 considerations apply here as for the water, mutatis mutandis, but it is

25 mainly the very low frequently of these events that matters. So the last

Page 13074

1 thing that remains is Markale.

2 Markale is the most troubling event. If you look at the figures

3 produced by the Prosecution, we see in one glance that there is an obvious

4 difference between the pre- and the post-Markale time. Between the time

5 before the 5th and the 6th February of that year, and after. We have

6 testimony going along those lines. There is no more shelling after that

7 date. Therefore, Markale was a very productive event for the Sarajevo

8 forces. Somebody said, who is going to benefit from the crime? This is a

9 question that has got to be put clearly, difficult as it may be to admit

10 the answers to it.

11 Whatever the case may be, we have facts. The exhibits have been

12 manipulated it has to be said. We know that. The exhibits -- not

13 examined --

14 JUDGE ORIE: I have been asked to inform you that you have five

15 minutes left. And I also note that most of what you said on the shelling

16 incidents until now appears in the motion itself as well, which we have

17 read. Please proceed.

18 MR. PILETTA-ZANIN: [Interpretation] Nevertheless, and just a last

19 quick word with regard to Markale, the Defence never could have access to

20 the exhibits. What I mean, the technical, mechanical exhibits, that are

21 in the possession of the Prosecution, and therefore, given the absence of

22 any evidence, this is the best evidence possible. Some people do not have

23 any interest in having the Defence being able to demonstrate what it

24 wanted to do, which is to show in a scientific way that there is no

25 responsibility on the part of General Galic. Can we move to closed

Page 13075

1 session for a few minutes?

2 JUDGE ORIE: Yes. We can turn into closed session, but before

3 doing so, I noticed that the issue I drew your attention to specifically,

4 and this is what is the test to be applied has not been dealt with. So it

5 is not quite clear to the Chamber whether you would accept the tests as

6 expressed by the Prosecution based upon the case law of the ICTY, or that

7 you stick to the tests that appears several times, that it is not proven

8 beyond a reasonable doubt, where the Prosecution has indicated that the

9 tests should be that a reasonable court could convict.

10 Although, at the end of the day, it also could acquit. I have no

11 specific submissions heard on this issue, but let's first turn into closed

12 session. If you would like to spend another minute on that, the Chamber

13 would be grateful. We turn now into closed session.

14 [Private session]

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11 [Open session]

12 JUDGE ORIE: Yes, we are in open session again.

13 Mr. Ierace, is the Prosecution ready to respond to the submissions

14 made by the Defence?

15 MR. IERACE: Yes Mr. President, at least to start, might I enquire

16 when the next break is?

17 JUDGE ORIE: I wondered if we could finish in half an hour. We

18 might try to do it at once. But if you say, I would rather have a break,

19 but then a relatively short break at this very moment, I couldn't deny

20 you, at least, a few minutes of reflection.

21 MR. IERACE: I would be grateful for that, Mr. President.

22 JUDGE ORIE: Yes. Then I suggest that ten minutes, would that be

23 sufficient? We will restart at five minutes past 1.00. Would the parties

24 then please be prepared to continue -- no, we have to change the tapes, et

25 cetera. So we will have then another short break in order to prepare for

Page 13078

1 the Status Conference after half an hour. Yes.

2 --- Break taken at 12.50 p.m.

3 --- On resuming at 1.06 p.m.

4 JUDGE ORIE: I already indicated to the parties, that because of

5 the long terms the interpreters are working already they start even before

6 we started at 11.30, that the next break might take a bit longer. We will

7 discuss this at the end of the oral argument by the Prosecution.

8 Mr. Ierace, please proceed.

9 MR. IERACE: Thank you, Mr. President and Your Honours. I propose

10 to respond to the issues raised by the Defence, in particular, where they

11 have gone beyond issues raised in their written submissions, and

12 therefore, where the Prosecution's submissions are not yet available to

13 Your Honours.

14 Mr. President, should you and Your Honours so desire it, we, for

15 the Prosecution, are content to respond to any specific issues that you

16 may have, whether or not they have been covered by the Defence.

17 The first issue raised by the Defence was as to the relevant

18 standard of proof, if indeed it be that, which applies to this type of

19 decision. The submissions by the Prosecution set out that standard as has

20 been determined by the Appeals Chamber in Josic. For instance, should you

21 require further submissions on that, then we could do that here and now.

22 Alternatively, we could file some written submissions on it today,

23 although I anticipate that because it is settled law, that you will not be

24 troubled by it.

25 The next issue that was raised by the Defence was the

Page 13079

1 insufficiency of evidence to apply the proper standard to there being a

2 systematic or widespread pattern of behaviour. In other words, to adopt

3 the word that appears in the indictment, whether indeed it was a

4 campaign. The Defence referred to the Prosecution's submissions in

5 relation to the evidence of Ewa Tabeau that the rate of casualties

6 declined, said that that declining of figures was inconsistent with there

7 being a campaign and the explanation, which appears in the evidence and

8 which was highlighted in the Prosecution's submissions, does not explain

9 it, that is, the erection of sniping barricades and other steps, such as

10 requiring that funerals be held at night.

11 Mr. President, quite simply, it does explain why the figures

12 decreased. It does nothing to negate the evidence that the campaign

13 continued. The Defence further said that there was evidence that the

14 accused had given orders to prevent his troops from firing, and that was

15 inconsistent in their written submissions. In support of that, they refer

16 to the evidence of Mik Magnusson, a political officer for the United

17 Nations. That evidence appears, such as it is, at page 8.134, commencing

18 at line 20. He was asked in cross-examination whether it was true in

19 around September or October 1992, that General Galic was making sure that

20 his troops did not return fire to provocations, to which Mr. Magnusson

21 replied, I do remember him making statements to us that he was issuing

22 such instructions.

23 That submission by the Defence and other submissions made during

24 the course of the morning raise the issue --

25 JUDGE ORIE: May I interrupt you on this very specific issue,

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1 Mr. Ierace. I noted down on page 6, line 24, I hope I have taken the

2 right screen, that I had some questions about a translation. It was my

3 recollection that Mr. Piletta-Zanin used the word "retinir ses troupes,"

4 if I did understand him well. And I had a question mark to put, "prevent

5 his troops from firing." So there might be a translation problem there.

6 I am not saying that there is, but I noted it for myself to check it.

7 Please proceed.

8 MR. IERACE: Yes, thank you for that, Mr. President.

9 In any event, that submission and others raises the issue of

10 documentation of an official nature from the Sarajevo Romanija Corps. The

11 Defence has said in its written and oral submissions that the lack of any

12 documentation of illegal orders is evidence contrary to the Prosecution's

13 submission. It is, therefore, appropriate to reflect on the state of

14 evidence on that topic.

15 There is no evidence to the effect that Prosecution or the Defence

16 and, therefore, the Trial Chamber has a complete set of the orders issued

17 by General Galic in the indictment period. Some documents which were

18 disclosed from the Defence through Defence tendering in the Prosecution

19 case have made their way into evidence. As yet, we have no evidence as to

20 whether or not those documents are authentic, let alone, evidence that a

21 complete set an available. In any event, as a matter of common sense, one

22 would not expect the accused to have documented unlawful orders, in

23 particular, as the indictment period progressed. And international

24 attention focused increasingly on what was happening to the civilians in

25 Sarajevo.

Page 13082

1 The Defence challenged the evidence with respect to terror,

2 pointing out that lawful warfare, naturally, can give rise to terror on

3 the part of civilians. In our written submissions, we point to evidence

4 which clearly distinguishes the terror that the civilians felt from the

5 sure knowledge that they were being targeted deliberately as civilians,

6 and I rely on those written submissions.

7 The Defence referred to lack of damage of religious buildings,

8 minarets, as observed by Defence counsel during his holiday in Sarajevo

9 or, at least his recent visit. That, of course, is not evidence. The

10 accused is not charged under Article 3, Subsection D, in any event. And

11 for that reason, that has not been a topic, the subject of evidence from

12 the Prosecution. But let it not thought that that did not happen.

13 I intend to stay strictly within the proper confines of the case

14 in making these submissions. Suffice it to say, there is no evidence

15 before the Trial Chamber as to what occurred, if anything, in relation to

16 the targeting of religious buildings during the indictment period.

17 The Defence have included with their written submissions an aid

18 memoir in the form of a map which purports to identify legitimate military

19 targets within the confrontation lines, and around each is described a

20 circle which purports to be a radius of 300 metres. In the oral

21 submissions, the Defence again refers to the issue of accuracy and says

22 that this is not clear. This is the position of the Prosecution.

23 The evidence clearly establishes a high degree of accuracy on the

24 part of mortar and artillery crews who were subordinate to the accused.

25 That is not surprising, given the evidence that they were able to keep

Page 13083

1 their mortars and artillery in permanent positions. So they were not

2 concerned with initial inaccuracies with a bout of firing because the

3 mortar had to seat itself properly into the ground.

4 Further, the crews were firing in the same area for -- with

5 reference to the indictment period, some 23 months. What's more, in many

6 cases, they had direct observation of the targets. Therefore, that

7 evidence is not surprising. The Defence responds that that is not the

8 case, that the mortar crews were not capable of accurate firing, and point

9 to some evidence to that effect.

10 The Prosecution counters that if the mortar crews and the

11 artillery crews were not capable of accurate firing, then that was surely

12 known to the accused because of the length of the indictment period, if

13 for no other reason. And that, therefore, was a proper factor for the

14 crews to take into account when deciding whether or not to attempt to hit

15 a legitimate military target. Therefore the Prosecution says, in relation

16 to the circles which appear on the aid memoir, that that does nothing to

17 alleviate the accused responsibility. If anything, it demonstrates, if

18 one hypothetically assumes, the Defence contention, that the crews were

19 incapable of such a high degree of accuracy, that in many cases, those

20 crews had no business firing rounds into the urban areas of Sarajevo

21 perhaps knowing full well that their first shell, perhaps their second,

22 perhaps all of them would not hit that target but would land in those

23 other areas. So essentially, it is a response to a Defence submission.

24 The Defence has raised a number of issues in relation to the

25 scheduled shelling incidents. I don't intend to respond to those issues

Page 13084

1 because they are covered in the written submissions, except in relation to

2 the first incident. My learned colleague for the Defence said that there

3 were trenches next to the parking lot. And it seems that this was

4 something that came to his attention over the break. That is not the

5 evidence. The evidence is, as I recollect it, as we recollect it, that

6 there were trenches some 300 metres from where the shells landed. And

7 that does nothing to detract from the Prosecution case.

8 The Defence, towards the close of his submissions, said -- and

9 perhaps it was a mistake made inadvertently in translation -- that the

10 Defence has never had access to the exhibits in the possession of the

11 Prosecution, and that was said in reference to Markale. That is quite

12 incorrect. This is a reciprocal disclosure case.

13 JUDGE ORIE: I listened to the French original, and I think the

14 Defence referred to the shrapnel pieces on the photographs as -- I think

15 that was the argument of the Defence.

16 Please proceed.

17 MR. IERACE: Mr. President, it has never been suggested that the

18 Prosecution has possession or ever had possession of those cases. Thank

19 you.

20 Mr. President, there are a few comments I would like to make in

21 private session. This would be a convenient time.

22 JUDGE ORIE: We will turn into private session.

23 MR. IERACE: In relation to the evidence --

24 JUDGE ORIE: We are in private session.

25 [Private session]

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Page 13089

1 MR. IERACE: Mr. President, the final point I make in open session

2 is to simply acknowledge the submission by the Defence that there is

3 insufficient evidence as to the proximity of military targets during -- at

4 the relevant time of some of the sniping incidents. By "acknowledge," I

5 acknowledge that submission was made. I take the view that the

6 Prosecution response is sufficiently covered in our written submissions.

7 Mr. President, I think I am within the half hour. If there are

8 any questions that you or Your Honours have, then we would be happy to

9 respond.

10 [Trial Chamber confers]

11 JUDGE ORIE: The Chamber has no questions to the parties. And the

12 Chamber informs the Prosecution that it is not asking for any additional

13 submissions in respect of the tests to be applied. It is clear that there

14 is a difference of view between the parties. The Prosecution has relied

15 on the case law of the Tribunal. And apart from that, to speak some Latin

16 as well, Mr. Piletta-Zanin, "ius curias novit," "the Court knows the law,"

17 so there is no specific reason to further elaborate on that.

18 That means that this hearing on the motion filed under Rule 98 bis

19 is concluded. The only thing we now still have to do is to find out how

20 long we will have a break. When I indicated that it might be a short

21 break before, I was not sufficiently aware of the fact that the

22 interpreters had worked already longer today, even before we started. So

23 we now have the contradicting interest of ending early at Friday and

24 having enough time to rest and have lunch.

25 Since the interpreters are the most interested party, I would say,

Page 13090

1 would three quarters of an hour be sufficient or would it be more? Could

2 you please inform us what the wishes are of the interpreters' booth.

3 THE INTERPRETER: Mr. President, this is a different team of

4 interpreters working from this morning.

5 JUDGE ORIE: It is a different team. I was not aware of that.

6 How much time would the interpreters need for rest? I am listening to

7 Channel 4 at this moment, so I am not aware --

8 THE INTERPRETER: 20 minutes, Mr. President, if that is all right

9 with you.

10 [Trial Chamber confers]

11 MS. PILIPOVIC: [Interpretation] Your Honour, with your leave, just

12 one short request of General Galic the Defence would like to tell you

13 about it. His family arrived today. If it is possible, considering other

14 reasons, it is Friday, could we please finish early today. Only with your

15 leave, of course.

16 JUDGE ORIE: The interpreters would need 20 minutes. We will try

17 to finish as early as possible, especially being informed about the family

18 having arrived. And the Chamber, therefore, accepts that the afternoon

19 session will be on the same tape, because 20 minutes is too short to

20 change tapes. So you will understand that if you working efficiently this

21 afternoon, we can stay within this one tape. Otherwise, we will need

22 another break for changing tapes and that's -- then you are all bearing

23 the consequences yourself.

24 We will adjourn until five minutes to 2.00.

25 --- Whereupon the Motion Hearing adjourned at

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