Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10175

1 Monday, 18 October 2004

2 [Defence Opening Statement]

3 [Open session]

4 --- Upon commencing at 2.17 p.m.

5 [The accused entered court]

6 JUDGE ANTONETTI: [Interpretation] Mr. Registrar, would you call

7 the case, please.

8 THE REGISTRAR: Good morning. Case Number IT-01-47-T, The

9 Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

10 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Registrar.

11 I'd like the appearances, please, on the part of the Prosecution.

12 MR. MUNDIS: Thank you, Mr. President. Good afternoon Your

13 Honours, Counsel, and everyone in and around the courtroom. For the

14 Prosecution, Ms. Tecla Henry-Benjamin, Mathias Neuner, Daryl Mundis, and

15 our case manager, Mr. Andres Vatter.

16 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Mundis. I would

17 like to turn now to the Defence attorneys.

18 MS. RESIDOVIC: [Interpretation] Good afternoon, Your Honours. On

19 behalf of General Hadzihasanovic, Edina Residovic, counsel, Stephane

20 Bourgon, co-counsel, and Mirna Milanovic, our legal assistant. Thank you

21 very much.

22 JUDGE ANTONETTI: [Interpretation] I'm now turning toward the

23 other Defence counsel.

24 MR. IBRISIMOVIC: [Interpretation] Good day, Your Honours. On

25 behalf of Mr. Kubura, Fahrudin Ibrisimovic, Rodney Dixon, and Nermin

Page 10176

1 Mulalic.

2 JUDGE ANTONETTI: [Interpretation] Thank you. The Trial Chamber

3 would like to welcome all the parties and people present, the

4 representatives of the Prosecution, the representatives of the Defence

5 team and the accused, as well as all the staff members and interpreters

6 working in this courtroom this afternoon. We shall resume our court

7 proceedings this afternoon after an interval which was due to the fact or

8 related to Article 98 bis, legal break.

9 Now, before Giving the floor to the Defence for its opening

10 statement, I would like to turn to the Prosecution to say the following.

11 The Trial Chamber is asking the Prosecution whether it intends to reply

12 to the response made by the Defence which was filed on the 15th of

13 October i.e., last Friday, insofar as the Trial Chamber is providing a

14 posteriori, with hindsight, authorisation to the Defence to respond.

15 As you know, given certification of appeal, which is required, we

16 were -- the request -- a motion was sent to the Trial Chamber, and we

17 replied. Last Friday, the Defence has filed a new motion whilst asking

18 that authorisation be granted. This authorisation has been granted with

19 hindsight, given the deadlines we were facing. But the Prosecution is

20 entitled to respond, and the Trial Chamber would like to know whether the

21 Prosecution intends to respond. And if this were the case, they would be

22 entitled to three days to do so.

23 Mr. Mundis, could you let us know what your position is, please.

24 MR. MUNDIS: Thank you, Mr. President. The Prosecution has

25 nothing further to add. We will not be filing any further pleadings with

Page 10177

1 respect to the certificate issue.

2 JUDGE ANTONETTI: [Interpretation] Very well. Thank you.

3 The Trial Chamber will address this matter a little later, and we will

4 render an oral decision, as a decision will any case will be rendered in

5 writing.

6 Before giving the floor to the Defence team for its opening

7 statement, I'd like to say that we have received from the Defence the

8 overall witness list and schedule. Three witnesses should be called this

9 week. One will testify for an hour and a half, the next witness will

10 testify for six hours, and the third witness will testify for an hour and

11 a half. Pursuant to our request, the Defence has indicated the list of

12 documents which are likely to be tendered. This list identifies all

13 those documents with exhibit numbers which have been reviewed on the 11th

14 of October. Therefore, we have mapped out our schedule for the following

15 week. I have asked the Defence team to provide us with a schedule over a

16 two-week period. So we would like to have the schedule for the following

17 week, please, the week after this one and the week after that, if it is

18 at all possible.

19 That said, I would now like to give the floor to the Defence, as

20 the Defence is about to read its opening statement.

21 MS. RESIDOVIC: [Interpretation] Mr. President, before I give the

22 floor to my learned colleague, Mr. Bourgon, could I first of all inform

23 you about something in relation to your decision, the one that you have

24 just presented. Defence counsel has accepted your suggestion, and we

25 will do our best to provide the witnesses scheduled and to provide you

Page 10178

1 with the documents within a 15-day time limit. For the moment, this has

2 not been possible because we were expecting to start with the expert

3 witness for historical matters, but we have had to follow your decision

4 and change the schedule. As a result, we weren't able to provide the

5 complete list.

6 And second, I would like to say that for the first witness in the

7 list that we provided, we intended to examine this witness for an hour

8 and a half. Could the Trial Chamber consider the possibility that this

9 examination might take a little longer because we planned for this

10 witness to arrive after a number of other witnesses who would already

11 have informed the Trial Chamber of certain facts. But the Defence

12 counsel would like to inform the Chamber that the examination will be

13 finished this week, so we won't require additional time.

14 As far as the opening statement is concerned, Mr. President, we

15 have agreed that my colleague, Stephane Bourgon, should give the opening

16 statement. Thank you very much.

17 JUDGE ANTONETTI: [Interpretation] Thank you, Mrs. Edina

18 Residovic. I shall now give the floor to your co-counsel, Mr. Bourgon.

19 MR. BOURGON: [Interpretation] I'd like to greet all members

20 present in this courtroom. Good afternoon, Your Honours. I have the

21 honour to address the Trial Chamber today with a view to reading the

22 opening statement of the Defence.

23 So pursuant to Article 82 of the Rules of Procedure and Evidence,

24 to start off I do not hesitate, Your Honour, to tell you this is no mean

25 task. To say the least, I must admit that I spent a long time thinking

Page 10179

1 about what I should include in such an opening statement. If I were to

2 plead before a jury today, this would not really raise any difficulties

3 for me. If I were pleading before the martial court in Canada as I was

4 accustomed to doing, I would know exactly what to say.

5 But what kind of opening statement can I make in front of a Trial

6 Chamber of an international tribunal? That is yet another question.

7 This is why, Your Honour, after having discussed these matters with my

8 colleague, I decided to opt for the following. I decided that the

9 opening statement of the Defence will focus on the following objectives:

10 In this opening statement, Your Honour, I'd like to inform you that it

11 will last approximately three hours. I would like to identify what is at

12 stake here for the accused. I would like to seize this opportunity to

13 mention that you are able to follow my outline, the outline I intend

14 following throughout the opening statement so you are able to keep up

15 with what I am saying.

16 As I was saying, the first thing I would like to address today

17 in my opening -- in my opening statement will be to highlight the key

18 issues. After that, I wish to take stock of current procedures to date

19 and look into those -- the material evidence provided by the Prosecution

20 which will be disputed during the Defence case. Of course, I shall also

21 use the opportunity to inform the Trial Chamber of the evidence that will

22 be presented and why we shall be presenting this evidence material. We

23 should also, Your Honour, like to provide the Trial Chamber with a table

24 which will enable all the people in the courtroom to understand the

25 evidence material we are using.

Page 10180

1 That said, Your Honour, I should like to draw your attention to

2 the outline that is displayed on the screen. First of all, Your Honour,

3 I shall start off with an introduction. The introduction will relate to

4 what is at stake for the accused. This is broken down into nine parts.

5 I shall first of all address the standard and the level of caution

6 required on the part of a commander. I will then address the Prosecution

7 case. We believe that this is indeed relevant at this stage of the

8 procedure, so that the Trial Chamber is able to understand the evidence

9 provided by the Defence. I shall then talk about factors pertaining to

10 the accused: who is the accused; what do we know about him; and what

11 will we discover about this accused during the Defence case. We shall

12 also address the Prosecution case and the Prosecution evidence presented

13 by the Prosecution and also what was very specific. Also, as we have

14 done since the beginning of the trial, we shall talk about the background

15 and of its importance in this case.

16 On the following page, Your Honour, you can see the various parts

17 I shall address in my opening statement. We shall address the question

18 of the witnesses which will be presented by the Defence counsel, the

19 mujahedin factor. I shall make a few comments relating to the applicable

20 law in this case, and I shall also discuss evidence material provided

21 during the Defence case. I shall, of course, wrap this up with a

22 conclusion, and I shall suggest an analysis grid to the Trial Chamber

23 which can be used right until the end of the trial.

24 Your Honour, I should now like to start on my introduction. The

25 introduction will be divided into five parts. I think it is important,

Page 10181

1 Your Honour, to understand what the duties and obligation of the Defence

2 counsels are when presenting their case. I sahll talk about the strategy

3 of the Defence counsels; and more specifically, as I have mentioned it, I

4 shall say what the key issues are here and how important they are for the

5 accused; I shall discuss what the purpose and objectives of the Defence

6 team is when presenting its case; and lastly, Your Honour, the challenge

7 we face in this particular stage of the trial.

8 As far as the duty of the Defence counsels are concerned, as we

9 start with the Defence case, Your Honour, we believe it is timely to take

10 stock of our duties and obligations as Defence counsel. First of all, as

11 the Trial Chamber already knows, all the Defence counsels are bound by

12 the ethics committee that are here employed as attorneys before the

13 International Tribunal. This lists our duties and obligations vis-a-vis

14 our client, primarily, but vis-a-vis the Tribunal and the public at

15 large. This is why, Your Honour, this quotation, we feel, is

16 particularly relevant to this case and pertains specifically to the

17 accused. It is important to explore each avenue without any fears

18 whatsoever and without regarding any personal fears, with a view to

19 highlighting those facts de jure and de facto, whilst not wasting too

20 much time. This is what we have endeavoured to do since the beginning of

21 this trial, and this is what we shall continue to do with all due respect

22 to the International Tribunal.

23 As far as the Defence strategy is concerned, we feel there's only

24 one way of addressing this matter in this case. It is essential for us

25 at a time we shall be presenting our case to make sure that the Trial

Page 10182

1 Chamber understands the position of the accused and puts himself in the

2 shoes of the accused. The Prosecution case which you have heard for some

3 eight months is only one side of the story. We are now addressing the

4 Defence case, and it is the opportunity for the accused to give his own

5 story. We don't think that this is just an extension of the Prosecution

6 case. Our objective in this particular stage of the -- of the trial and

7 for the Trial Chamber at large is to unravel the truth. We certainly

8 don't intend to confirm the Prosecution case; quite the contrary. For

9 some eight months now, the Prosecution has adopted an approach which we

10 feel is rather limited because the Prosecution did not ask the Trial

11 Chamber to consider the background material overall. As you know, Your

12 Honour, our approach is quite a different one. And if you like, the

13 Prosecution has shown you the trees, but has not shown you the forest.

14 These trees sometimes -- sometimes the trees had leaves and sometimes

15 they did not because they were dead trees. So there's only one way we

16 believe we can address this trial. We want to make sure, Your Honour,

17 that you're able to put yourself in the accused's shoes.

18 We have already had an opportunity to address the Rendulich case,

19 and we believe that we should keep you abreast with the content of this

20 case. General Rendulich was a German general. This general had to, over

21 a hundred or so kilometres, had to backtrack and retreat because the

22 Russian Army was coming towards the army and running behind his army

23 corps. When exercising -- when complying with this order, General

24 Rendulich pursued the policy of scorched earth, and he was accused of

25 this in the proceedings known as "the high command trial." The

Page 10183

1 conclusion reached by the Judges was the following one, Mr. President:

2 Given the information that the Trial Chamber has at its disposal today,

3 there is no doubt that the accused had no reason to pursue the policy of

4 scorched earth. Nevertheless, at the time, given the circumstances

5 prevailing and in view of what was possible for him to do and in view

6 what he did do, the decision that he took was reasonable and he was

7 acquitted on this count.

8 The Rendulich principle, Mr. President, is a principle which has

9 been adopted on a number of occasions, and in particular in the course of

10 the negotiations at the diplomatic consequence which led to the adoption

11 of the additional protocols to the Geneva Conventions. The Rendulich

12 case is now better known in the military field and in the field of

13 international humanitarian law. It is better known as the Rendulich

14 amendment. A number of states, when they were ratifying the draft for

15 the protocols additional to the Geneva Conventions, and in particular the

16 first additional protocol, they insisted that a declaration of

17 interpretation should be attached to this draft. They said that it was

18 primordial, in their opinion, for commanders to be able to judged while

19 taking into consideration the relevant circumstances at the time in

20 question.

21 Mr. President, I will pursue to address the matter or the key

22 issues addressed by the Prosecution. This trial, Mr. President, is the

23 trial of a commander. General Hadzihasanovic is before you because he

24 was the commander of the 3rd Corps of the BH Army. He is not here, Mr.

25 President, because he himself personally committed crimes. He is here

Page 10184

1 because the Prosecution claims that he failed to perform his duties as a

2 commander. It is our position that the evidence has already demonstrated

3 that this is not the case. And the evidence that the Defence counsel

4 will present will lend additional support to this conclusion.

5 Nevertheless, Mr. President, one should not forget -- and this is

6 what we suggest when commencing with the Defence case: One should not

7 forget that it is the exercise of command that is the object of this

8 trial. The nature of the charges is, nevertheless, linked to crimes of

9 war that were allegedly committed. The question is, Mr. President: Are

10 the charges or the violations which General Hadzihasanovic allegedly

11 failed to prevent, are the violations that he failed to prevent or punish

12 such that they changed the way in which we should conduct this trial? We

13 don't think that is the case, Mr. President. On the contrary.

14 Not long ago, Mr. President, I had the opportunity of meeting a

15 head of state, and I was asked to explain to this head of state what the

16 position was of a member of Defence counsel. And to my great surprise,

17 the reply that I could provide or that was provided was as follows: He

18 must have done something to be there. This reply, Mr. President,

19 astounded me. I cannot understand how today when we think about the

20 legal rules, how can we believe that if an accused is before an

21 international criminal tribunal, he must certainly have committed some

22 crime.

23 I believe, Mr. President, that it is of extreme importance to

24 ensure that the rule of law and the presumption of innocence are

25 principles which are maintained, principles to which one adheres by using

Page 10185

1 all the means that this Tribunal has at its disposal. The purpose of

2 this Tribunal, Mr. President, or one of its obvious objectives, is to do

3 away with impugnity. As a starting point, this means that the highest

4 norms must be respected, and one must base oneself on universal

5 declarations. Crimes were committed in Central Bosnia in 1993. That

6 appears to be the case. And this is definitely regrettable. The victims

7 of these crimes merit all our compassion. But, Mr. President, this is

8 not a reason to turn a commander into a scapegoat.

9 What will the objective of the Defence be when presenting its

10 evidence? First of all, Mr. President, we take note of the decision

11 relating to the accused's motion for acquittal. This decision, Mr.

12 President - and I believe that I can say this without showing

13 disrespect - was a deceiving decision for us. Nevertheless, Mr.

14 President, we respect the decision, and we will act accordingly. Mr.

15 President, we will attempt to present a very good and coherent Defence

16 case and won't leave anything to chance. We are prepared for this, and

17 this is what we will do.

18 Mr. President, our objective is as follows: We want to help the

19 Trial Chamber to see beyond the poorly founded theory presented by the

20 Prosecution. The challenge that we have is on your screen, Mr.

21 President. Naturally, you have recognised this grand old dame, and

22 perhaps you recognised in this figure a young maid. You have both

23 figures on the screen. You have probably seen this image before. It is

24 a drawing coming from the year 1915, and it is called "The Boring

25 Figure." Mr. President, this is an image that contains two images, and

Page 10186

1 it was developed to show us that the human brain can recognise only one

2 of the figures contained in this figure at a given time. Mr. President,

3 you may have identified a young woman or an old woman when looking at

4 this image, but what the Defence counsel wants you to do is to look

5 behind the smokescreen that the Prosecution has attempted to present you

6 with.

7 And now, Mr. President, I would like to address the first point

8 of the opening statement: the level of caution and the standards that a

9 commander should apply. I will first of all start addressing the issue

10 of a theory, and then I will talk to you subsequently about the

11 responsibility of a person in command position. According to the case

12 law of the International Tribunal, there are three elements that have to

13 be proved beyond any reasonable doubt if one is to deliver a verdict of

14 guilty pursuant to Article 7(3) of the Statute. These three elements

15 relate to the existence of a superior-subordinate relationship; the

16 second element has to do with the fact that the accused knew or had

17 reason to know that violations were about to be committed or that

18 violations had been committed. And thirdly, the accused failed to take

19 reasonable measures in the circumstances. Mr. President, it seems to us,

20 and this is evident for us, that there is an important difference between

21 Article 7(1) and Article 7(3) of the Statute. In the case of 7(1),

22 there's the proof of the actus reas, the material proof, and then there's

23 the proof of intention, mens rea, that are used to arrive at a verdict of

24 guilty.

25 According to Article 7(3), Mr. President, this article doesn't

Page 10187

1 have to do with the criminal intention. It has to do with imputed

2 responsibility. In such a case, Mr. President, we require a norm, a

3 referential norm that would enable the Chamber to evaluate in what manner

4 the commander exercised his duties in 1993 in Central Bosnia. If we have

5 a look at the third of the requisite elements, it is a question of

6 necessary and reasonable measures that have to be taken. We believe that

7 the word "necessary" and the word "reasonable" invoke a standard, invoke

8 a certain level in light of which the acts committed by General

9 Hadzihasanovic should be evaluated. With regard to the theory, the gap

10 theory:, I believe, Mr. President, that it is important to understand

11 that the Defence representing General Hadzihasanovic does not intend to

12 minimise the importance of a role of a commander.

13 A little over ten years ago, I was involved in proceedings in

14 Canada, the proceedings against a commander of an air regiment in Canada,

15 an airborne regiment, and this regiment allegedly committed certain

16 violations, certain offences when in operation in Somalia. This was a

17 disgrace for Canada. This trial was a disgrace for Canada, and the

18 government even dismissed this regiment from the Canadian Forces. The

19 commander of this regiment was accused in front of the court-martial. As

20 part of the Defence, I was a junior lawyer involved in the case, and this

21 person was acquitted of the charges against him; namely, of the charge of

22 having given orders that were contrary to the rules of engagement he had

23 been provided with by the government.

24 In spite of the acquittal, Mr. President, the person in question,

25 Lieutenant Colonel Mathieu, had his life ruined. In spite of the fact he

Page 10188

1 was acquitted, his life was ruined. And from that date onwards, I

2 understood the importance of the role of a commander in the army.

3 Although I had already been a member of the army for ten years at the

4 time, and today before you, it is in no way my intention to minimise the

5 role of a commander. On the contrary, my intention today, Mr. President,

6 is to present evidence for the Defence which will demonstrate to the

7 Trial Chamber that General Hadzihasanovic did everything he could and

8 performed his duties in the circumstances that prevailed in Central

9 Bosnia in 1993.

10 In order to do this, Mr. President, I think it is important to

11 ask oneself the following question: What was the objective of rendering

12 commanders responsible? Why are we here today? Why are we with an

13 accused who himself did not commit any crimes? And why do we, and I'm

14 referring to the international community, represented by the Prosecution,

15 why have we decided to level charges against a commander? First of all,

16 Mr. President, the reason is that the objective of rendering commanders'

17 responsibility is to respect international humanitarian law. The

18 objective is to prevent infractions of international humanitarian law.

19 The objective of commander's responsibility is to ensure commanders of

20 the military who are involved in operations are placed under responsible

21 command and that they are held accountable for the acts of their

22 insubordinates [as interpreted].

23 Mr. President, we have to ask ourselves how we are going to

24 proceed to evaluate the work of a commander on this standard. How can

25 one find out whether General Hadzihasanovic in the circumstances that

Page 10189

1 prevailed at the time did everything that he could and performed all his

2 duties? There is one possible reference that we can invoke, Mr.

3 President, and this is the trial of the General Yamashita. We have

4 already addressed this issue in our pre-trial brief. On the 25th of

5 September 1945, General Yamashita was accused as follows: Between the

6 9th of October 1944 and the 2nd of September 1945, and that's a period of

7 approximately 11 months, at Manila and other place in the Philippine

8 Islands, while in command of the armed forces of Japan at war with the

9 the United States of America, unlawfully disregarded and failed to

10 discharge his duty as commander to control the operations of the members

11 of his command, permitting them to commit brutal atrocities and other

12 grave crimes against the people of the United States and of its allies,

13 and in particular, against the people of the Philippines. And for this

14 reason, he was accused of having committed violations and having failed

15 to respect the laws of war.

16 Mr. President, this is a very serious charge. Nevertheless, the

17 reason for which I wanted to refer to this case is that in the case of

18 General Yamashita, there was one charge, and a series of crimes were

19 listed as having been committed by subordinates. General Yamashita had

20 only been charged with one count, and he had been charged with having

21 failed to perform his duties. This is the danger we are facing in this

22 case, Mr. President, since rather than having to confront only one

23 charge, General Hadzihasanovic has to confront a number of specific

24 charges. And the Prosecution has tried to make separate or list separate

25 charges against the accused.

Page 10190

1 Mr. President, when dealing with the responsibility of the

2 General and when attempting to evaluate evidence for the Defence, we

3 believe that the question one should first ask is whether General

4 Hadzihasanovic performed his role or not. We should ask ourselves

5 whether he did everything that was his duty, given the circumstances that

6 prevailed in 1993.

7 Mr. President, the responsibilities of a commander pursuant to

8 7(3) of the Statute shouldn't be strictly defined. There is a

9 difference, Mr. President. Strict responsibility is such that the

10 accused would be declared to be guilty for the simple fact that he was

11 the commander of the subordinate who committed a crime. According to the

12 jurisprudence of this Tribunal, we are fortunately protected against such

13 a strict definition of responsibility. And this is a principle that we

14 have invoked on a number of occasions and that we will invoke on a number

15 of occasions in the course of the Defence counsel.

16 But Mr. President, how should one differentiate between the

17 commander -- or a commander who is responsible and reasonable from a

18 commander who failed to perform his duties? Mr. President, at what point

19 in time does the conduct of a commander become criminal? At what point

20 in time could such a commander be held criminally liable? We believe,

21 Mr. President, that this quote that I have referred to is one that could

22 help us in this case. Mr. President, this is a quote taken from the

23 Yamashita case, and where one says "Where the commander deviates

24 significantly from customary command practices and war crimes are

25 committed by subordinates as a direct result, the commander may be guilty

Page 10191

1 of underlying offences just as if he had committed them himself."

2 The second quote, Mr. President, comes from the High Command

3 case, and according to this quote, "there must be a personal dereliction"

4 - I'm looking for the right word in French to translate the terms

5 "personal dereliction" in English - "there must be a failure to supervise

6 his subordinates that constitutes criminal negligence on his part." And

7 the manner of determining whether there is criminal negligence means that

8 there must be "personal neglect amounting to a wanton, immoral disregard

9 of the action of his subordinates amounting to acquiescence." This is a

10 lack of care, an extreme case of insouciance. It involves not taking

11 into consideration what subordinates do or might do, and as a result,

12 this shows in a way that a commander agrees or supports the violations

13 committed by his subordinates.

14 Mr. President, we believe that when discussing the required level

15 of caution, when we're talking about standards, when we're talking about

16 how the Trial Chamber will evaluate whether the measures taken by General

17 Hadzihasanovic are such that he should be declared guilty of crimes, we

18 believe that this is a standard that the Trial Chamber should refer to

19 when evaluating these matters. Naturally, Mr. President, we do not

20 believe that General Hadzihasanovic, by his acts and by the manner in

21 which he exercised his command - and this is what you will hear from

22 witnesses and what you will see in documents, and you will have already

23 seen this in some documents that have been presented in the case - we

24 believe that General Hadzihasanovic doesn't even approach this standard,

25 the standard that relates to the responsibility of a commander.

Page 10192

1 Mr. President, it's also important to remind oneself that the

2 responsibility of a commander is not an obligation that ensues from the

3 results, that is based on results. What do we mean when we say this?

4 It's simple, Mr. President. When a commander discovers that a crime is

5 just about to be committed or when a commander discovers that a crime is

6 being committed by subordinates, if the commander takes necessary and

7 reasonable measures to prevent this crime from being committed, it is not

8 important whether the crime has been committed or not, in such a case,

9 the commander should be acquitted. As far as punishment is concerned, if

10 a commander discovers that a violation was committed, that a crime was

11 committed and if the commander takes the necessary and reasonable

12 measures in the light of the circumstances prevailing, whether the

13 alleged perpetrator is punished or not at the end doesn't change the fact

14 that the commander performed his duties and should not be declared guilty

15 of this crime.

16 This is similar what we discover in the Krnojelac case, Trial

17 Chamber II, where it is stated that the commander does not have to

18 perform the impossible. A commander has the duty to exercise his powers

19 within the limits of those same powers. This quotation, Your Honour, was

20 quoted by the Appeals Chamber, by the Prosecution in its brief, and by

21 the Defence team also in its brief. A commander cannot perform the

22 impossible. The level of caution is a requirement.

23 Your Honour, I should now like to address the second part of my

24 opening statement, i.e., the Prosecution case. We believe, as I have

25 stated a little earlier on, that this is a prerequisite in order to get a

Page 10193

1 good understanding of what lies at stake in this trial, before addressing

2 the Defence case. Your Honour, I'd like to submit to you that the

3 Prosecution case can be broken down into five parts: The objective of

4 the Prosecution; the initial Prosecution case; the reversal of the

5 Prosecution case; the new Prosecution case presented by the Prosecution;

6 and lastly, the limited approach of the Prosecution.

7 I shall start off with the objective or the aim of the

8 Prosecution. This quotation is a quotation taken directly from the

9 Prosecution case. I think it is important, Your Honour, to read this

10 through. This is what the Prosecution lawyers have presented to this

11 Trial Chamber on 2nd of December last. This is the other side of the

12 same coin relating to a number of trials already being heard before this

13 International Tribunal. The most important cases were that of the

14 Prosecution versus Blaskic and the Prosecution versus Kordic and Cerkez

15 as such. "In this trial against Enver Hadzihasanovic and Amir Kubura,

16 stated that all the parties to the conflict in the former Yugoslavia,

17 even though this was deployed in different regions and on different

18 scales, have violated the international humanitarian law which comes

19 under the jurisdiction of this Tribunal. This trial and the material

20 evidence we will present will demonstrate that the war crimes that were

21 committed -- that war crimes were committed by both parties to the

22 conflict in Central Bosnia and the trial will clearly indicate to the

23 rest of the world, give a broader picture and in-depth picture of the war

24 in Bosnia."

25 Your Honour, as far as the first point is concerned, namely, the

Page 10194

1 other side of the coin, what is the other side of the same coin and what

2 was the Prosecution referring to? The facts, namely in the Blaskic and

3 Kordic cases, to only quote these two, for which the Prosecution wish to

4 demonstrate the other side of the same coin.

5 Your Honour, if you will bear with me for a few minutes, I have a

6 technical problem to solve. Your Honour, I think I didn't press on the

7 right button. If you will allow me just a few extra minutes, please.

8 Your Honour, this is a quote from the opening statement of the

9 Prosecution in the trial the Prosecutor versus Blaskic. Once again, Your

10 Honour, I think it is important to read this quote which is dated the

11 24th of June 1997. This is now being read in English.

12 [In English] "The case over which you... will preside is case

13 about how Bosnian Croat military forces under the command and control of

14 Tihomir Blaskic ethnically cleansed partss of Central Bosnia in 1993 by

15 systematically attacking Muslim civilians and their homes and destroying

16 their property and by employing methods that no responsible military

17 commander would condone. The illegal methods used by his forces were

18 calculated to achieve an ethnic majority for the Bosnian Croats in

19 Central Bosnia."

20 [Interpretation] Without making any further comments vis-a-vis

21 these accusations, so other trials against Bosnian Croats, I think one

22 can by just looking at this quotation understand why the Prosecution

23 wishes to show the other side of the same coin. The International

24 Tribunal is criticised for its lack of impartiality. The Defence has

25 every interest, therefore, in showing the other side. But I would like

Page 10195

1 to make two provisos. There are two pitfalls we would like to avoid:

2 (A), the danger of rewriting history; but even worse than that, the

3 danger of pinpointing a scapegoat on the other side. The Prosecution did

4 not state at the beginning of this trial "This is a trial of a commander

5 who did not meet his obligations. This is the trial of a commander who

6 should be punished to -- so that the rest of the world understands what

7 complying with international humanitarian law means and what happened in

8 Central Bosnia." What the Prosecution stated was that this was a trial

9 to show the other side of the coin. We think this is a very important

10 question when addressing the strategy of the Prosecution and the

11 Prosecution case.

12 The second point, Your Honour, I would like to address relates to

13 the issue of the mujahedin. During the cross-examination, an

14 investigator clearly identified the mujahedin factor and stated this was

15 an essential component in this case. I shall quote in English:

16 [In English] "Question: So the crimes committed by the mujahedin

17 was an important aspect of your investigation?"

18 [Interpretation] The answer was: Yes, it was."

19 [In English] Question: And as part of the investigation proposal

20 that was approved, finding out persons responsible for the crimes

21 committed by the mujahedin was one of your principle objectives. I can

22 rephrase that if you want. I'm just suggesting to you that you made an

23 investigation proposal. Is that correct?"

24 "Yes, members of the team did."

25 "And in that investigation proposal, you have targets, or issues?

Page 10196

1 What is the term do you use?"

2 "We would use -- targets is appropriate."

3 "Target it will be. And one of those targets were crimes

4 committed by the mujahedin?"

5 "That's correct."

6 [Interpretation] Your Honour, we have heard as evidence mujahedin

7 committed crimes in Central Bosnia in 1993. But the evidence we will

8 present will clearly indicate that the tragic events that took place in

9 Miletici, in Maline, in Orasac, to only name a few - were committed by

10 mujahedin. Once again, Your Honour, it is easy to understand the

11 objective of the Prosecution, i.e., to find a guilty person for the

12 crimes -- for these crimes. We support them in this endeavour, but we

13 cannot support them when they tend to turn Enver Hadzihasanovic into a

14 scapegoat. The evidence heard to date and the evidence to be heard in

15 the future confirms that this is not the case.

16 How does the Prosecution case stand to date? I should rather

17 say, the method used by the Prosecution to demonstrate the guilt of the

18 accused. Thereby, we are able to assess two things: First of all, the

19 knowledge Hadzihasanovic had of those crimes. The Prosecution used three

20 important -- raised three important issues which we shall also address.

21 The question of notice or having had the information that crimes were

22 about to be committed or had been committed. The question of notice,

23 Your Honour, was addressed once again by the Appeals Chamber as it

24 rendered its decision in the Blaskic case. The question of having been

25 informed or not is not something which rests on a suggestion or a

Page 10197

1 presumption. It does not rest on the fact that the accused should have

2 known; it's a question which rests on the following: The accused must

3 have had the information enabling him to infer that a violation was about

4 to be committed or had been committed. Once again, as far as the

5 question of knowledge is concerned, the Prosecution has used, in its

6 opening statement and in its pre-trial brief, has mentioned the question

7 of orders stating that an accused -- when an accused or the accused gave

8 orders to his men not to steal, this means that the same commander knew

9 that his men were looting and destroying property. Once again, this

10 question was addressed in the recent decision in the Appeals Chamber in

11 the Blaskic case where it was stated that if a commander gives an order

12 with a view to preventing his subordinates from committing any form of

13 violation, such an order cannot be deemed or compared with the knowledge

14 he might have thereof.

15 The question -- next question is how the crimes are related to

16 one another. On reading the Prosecution pre-trial brief, it is important

17 to understand that the knowledge of the accused pertains to -- from one

18 crime to another as the accused has the information on Dusina, he is also

19 held responsible for Miletici. As he had the knowledge regarding

20 Miletici, he is therefore responsible for Miletici [as interpreted]. We

21 believe that this is an argument which goes round in circles. And this

22 cannot be used to demonstrate that the accused had the required

23 knowledge.

24 Also, the -- in the Prosecution case, we have outlined the key

25 issue, in other words, the fact that the accused did not take the

Page 10198

1 necessary measures despite the resources he had at his disposal. Once

2 again, a quotation from the opening statement of the Prosecution dated

3 2nd of December: The accused was -- the Prosecution was going to prove

4 something which related to the heart of the matter, that the accused had

5 not taken the necessary and reasonable measures to prevent these criminal

6 offences from being committed or from punishing the perpetrators thereof.

7 The only issue we can agree on with the Prosecution is that we are here

8 dealing with something which has to do with the heart of the matter. The

9 General Hadzihasanovic, did he or did he not take the necessary and

10 reasonable measures, given the circumstances? In this case, Your Honour,

11 we believe that the General Hadzihasanovic has taken all the necessary

12 measures given the circumstances.

13 What was the Prosecution case when the question of measures was

14 raised? Once again, I quote from the opening statement of the

15 Prosecution. We get an insight into what the Prosecution deems are the

16 right measures a commander should take; namely, this is stipulated in the

17 Geneva Conventions. They instruct the subordinates and the soldiers of

18 their duties and obligation in line to international law, to order and

19 subordinate and comply with international humanitarian law, and all

20 violations of the latter should be punished. The fact that disciplinary

21 measures should be imposed with a view to complying with the rules and

22 regulations of the Bosnian Army, and make sure that all the necessary

23 measures to implement and comply with these measures are actually taken.

24 In the following page is dealt all the measures that the

25 Prosecution felt a reasonable commander should take. Your Honour, we

Page 10199

1 don't feel that this quotation, even though we have mentioned it in our

2 opening statement, we don't think that this has been supported by any

3 testimony or any document adduced by the Prosecution. We would therefore

4 like to ask the Trial Chamber which measures should be taken, either

5 based on the law or on interpretation of a number of documents which have

6 been adduced by the Prosecution or by the witnesses that were called in.

7 The Defence case or the Defence intends to fill this gap and intends to

8 explain which measures a reasonable commander should take and why.

9 The Prosecution case, Your Honour, can be summed up as follows:

10 There were three letters sent to the Public Prosecutor, to Travnik, to

11 the court of Travnik, and the cantonal court of Zenica. These three

12 documents clearly demonstrate what the Prosecution case is all about.

13 For the Prosecution, the only important measure when it conducted its

14 investigation in this case, when it prepared this case, the only measure

15 was as follows: It was important to understand whether the accused had

16 taken the necessary measures or whether a -- any soldier in the 3rd Corps

17 had been tried for a war crime. The expert witness presented by the

18 Prosecution demonstrated that the measures taken by a commander can be of

19 different nature. And if a person is tried for a war crime, there can be

20 a number of reasons for this. Nevertheless, in one of these documents,

21 the president of the cantonal court of Travnik, Exhibit P773, the

22 president of the cantonal court of Travnik confirmed that 857 cases had

23 been dealt with by the military district court. But the Prosecution did

24 not look into the matter, for it was after war crimes.

25 I shall now talk about the reversal of the Prosecution case.

Page 10200

1 This could be explained in several ways: (a), the measures taken by the

2 accused; and (b), the conclusion of the expert witness of the Prosecution

3 as he answered one of the questions put to him by the Trial Chamber. We

4 know that the Prosecution case could no longer hold true after the expert

5 witness stated "I have seen a number of additional documents that prove

6 that General Hadzihasanovic not only gave orders, not only complied with

7 the various stages of the procedure to check that everybody was being

8 treated legally, looking into the perpetrators mentioned in this

9 document. But I changed my mind when I say that he had not followed up

10 on all of this after having taken a decision, and quite obviously he

11 did." The documents adduced, Your Honour, even though these only

12 represent a sample of all the measures undertaken by the accused, go well

13 and way beyond those measures put forward by the Prosecution.

14 The conclusion of the Prosecution representative ran as follows,

15 and I am quoting him here: "After having filed these documents, you may

16 remember that when these documents were presented for the first time, the

17 Prosecution did not know that these documents existed. It seemed quite

18 clear and contrary to our initial viewpoint, the accused had done nothing

19 other than what General Reinhardt had been able to identify. One case,

20 it seemed that the accused had taken the necessary and reasonable

21 measures, and we find ourselves now in a different situation. It seems

22 pretty well clear that on several occasions, the security department of

23 the 3rd Corps did conduct investigations and transferred all these cases

24 to the military district courts so that the necessary measures be taken.

25 Thereby, he met his obligation. It is important to understand that once

Page 10201

1 an commander has conducted an investigation and that he has transferred

2 the investigation and sent it to the competent tribunal, that's where his

3 obligation ends."

4 This was a conclusion put forward by the Prosecution, and this is

5 a new conclusion. I should like to quote what was stated on the 4th of

6 June 2004 which I would entitle "the new Prosecution case." And I am

7 quoting from what was said on that day in English.

8 [In English] "Mr. President, Your Honours, the investigation team

9 leader is currently in Bosnia with an investigation team, again through

10 court records and district military prosecutor's records in order to

11 hopefully satisfy the Chamber that steps were not taken by units of the

12 3rd Corps to punish the perpetrators of the crimes that are set forth in

13 the indictment. So the point is not for the investigator to return with

14 a large number of documents, but precisely the opposite. The team that

15 is currently searching through, again, the court archives is attempting

16 to demonstrate that there are no such records pertaining to the crimes

17 that are set forth in the Third Amended Indictment. The subject matter

18 of that proposed testimony would be to the effect that teams of

19 investigators have again gone through the court records, and there are no

20 records indicating that the crimes in the Third Amended Indictment were

21 the subject of referrals by the 3rd Corps or its subordinate units. So

22 it's not a question of coming back with additional documents; it's a

23 question of testifying as to the lack thereof."

24 [Interpretation] Mr. President, having taken note of the reverse

25 of the theory -- or the Prosecution having confirmed the reversal of

Page 10202

1 their theory, the Defence believed naively that this could put an end to

2 the trial because the evidence showed that the accused, General

3 Hadzihasanovic, had acted as a responsible commander. And we would like

4 to remind you, Mr. President, that that is the purpose of this trial.

5 Nevertheless, the Prosecution, when establishing its new theory, wanted

6 to show that measures hadn't been taken for the specific crimes contained

7 in the indictment. And secondly, they wanted to show that they would

8 prove this by sending a team to Central Bosnia. We know what happened

9 afterwards, Mr. President. The Chamber was able to determine that the

10 mission, in extremis of the Prosecution conducted in Central Bosnia, was

11 not such that one could claim beyond any reasonable doubt that measures

12 were not taken with regard to all the counts in the indictment. I'll

13 come back to this later.

14 Nevertheless, what is even more important is that the Prosecution

15 did not explain, nor did it attempt to explain, why a commander who took

16 over 1.000 steps, 1.000 measures against his soldiers, measures for

17 violations similar to those mentioned in the indictment, why according to

18 the Prosecution he would -- why would such a commander fail to take

19 measures in certain specific cases.

20 Mr. President, this theory quite simply does not tally with the

21 evidence in the case. I have one other matter I'd like to address, and

22 then perhaps we could have a break. We could then finish with the

23 restrictive nature of the evidence. Since the beginning of the case, Mr.

24 President, we believe that the Prosecution is trying to limit the

25 proceedings to certain, very specific items. The Prosecution is not

Page 10203

1 trying to reduce the length of the trial. That is our submission. They

2 could have limited the evidence concerning the crime base or concerning

3 specific crimes, and they could have presented more elements concerning

4 the conduct of General Hadzihasanovic. However, this is not how they

5 proceeded, and the reason for this, Mr. President, is as follows: We

6 believe that the Prosecution is trying to ensure that the Chamber does

7 not examine the exercise of command on the part of General Hadzihasanovic

8 in the light of the overall context, in the light of the armed conflict

9 reigning in Central Bosnia in 1993.

10 For reasons that I have already mentioned, in the course of the

11 Defence case, we will strive to demonstrate the necessity of taking into

12 account the overall context so as to be able to evaluate in what manner

13 General Hadzihasanovic exercised his command.

14 Mr. President, I note that it is half past 3.00, and I suggest

15 that we have a break now, and after the break I will address the third

16 issue.

17 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon. It is

18 3.32 now. We will have a break now and we will resume at about 4.00.


20 --- Recess taken at 3.33 p.m.


22 --- On resuming at 4.01 p.m.


24 JUDGE ANTONETTI: [Interpretation] Very well. We will now resume.

25 Mr. Bourgon, you may take the floor to continue with your opening

Page 10204

1 statement.


3 MR. BOURGON: [Interpretation] Thank you, Mr. President. May it

4 please the Court.

5 Mr. President, Your Honours, I will now move on to the third part

6 of the Defence's opening statement, which has to do with factors

7 pertaining to the accused. And under this heading, Mr. President, and as

8 illustrated on the screen, I would like to show that what Prosecution

9 witnesses said with regard to General Hadzihasanovic, and I would like to

10 also mention what Defence witnesses will say with regard to the accused.

11 I will address what the Prosecution witnesses have said and what Defence

12 witnesses will say. First of all, we know that there are witnesses,

13 there's the Witness Garrod, the Witness Duncan, and the Witness Watters.

14 And I intend to use them as examples. I will start with Witness Duncan

15 who said the following, Mr. President: The question was as follows:

16 "You met him on 18 or 20 occasions. You were in that zone for

17 six months, General, at the time. What impression did you obtain with

18 regard to the competence, the aptitude, and the military capacities of

19 General Hadzihasanovic, and in particular in relation to the exercise of

20 command over his troops in the 3rd Corps zone, in the zone of the BH Army

21 3rd Corps?"

22 And General Duncan's response was that "as an officer, I thought

23 that General Hadzihasanovic was extremely intelligent. He was an

24 exceptionally capable and competent commander."

25 Further on in the course of the cross-examination, General Duncan

Page 10205

1 added that this was a good description of Hadzihasanovic. He was a very

2 competent and capable man.

3 And my second quote comes from Sir Martin Garrod. The Defence

4 put a question to this witness, and at the very end of the

5 cross-examination, it was said:

6 "I tried to see how -- I am trying to see how you met this man,

7 General Hadzihasanovic, in the field in 1993. I spoke to you about the

8 measures taken in relation to disciplinary matters and in relation to

9 instructions, communications, information from his superiors, information

10 from international representatives with whom he had contact. When taking

11 all this into consideration, I would like to ask you about your opinion

12 of the personality and the character of General Hadzihasanovic. And

13 given everything we have discussed today and given the knowledge that you

14 have and given your meetings with this man in 1993, would you say that

15 this is a commander who would not take any measures to punish someone if

16 it is possible to take such measures?"

17 And the answer was: "What is certain is that in my opinion, he

18 was a good general which necessarily implies everything which you have

19 just stated."

20 And finally, Mr. President, a quote from the Witness Bryan

21 Watters, an international witness, a deputy command of BritBat. He said

22 that Hadzihasanovic was an exceptional military commander in all aspects,

23 at least -- and in particular in comparison to his counterpart in the

24 HVO, Blaskic.

25 Mr. President, I could provide you with a number of similar

Page 10206

1 quotes or identical quotes, but there's also something that has already

2 been stated by the Prosecution. And this is something that we will prove

3 in relation to General Hadzihasanovic. We will return to the fact that

4 this is a career officer, an officer who was given a position that was

5 higher than the one he had at the beginning of the armed conflict. This

6 was an officer who was placed in a situation which was quite impossible.

7 He was an officer who worked 20 hours a day, 7 days a week. And he

8 almost died of exhaustion towards the end of the summer of 1993. This is

9 what witnesses will say in front of this Chamber. But in spite of

10 everything, this is a man who always seemed to be in full control of

11 himself. This is the very same man who took numerous measures to improve

12 command and control within the 3rd Corps, this very same commander who

13 never hesitated to take measures to prevent and to put an end to the

14 conflict with the HVO.

15 Mr. President, witnesses will appear before this Trial Chamber to

16 testify that General Hadzihasanovic pushed them to the limits of what can

17 be tolerated and to the limits of what can be accepted on the part of an

18 officer, and they were requested not to take up arms, not to attack, not

19 to mix with the HVO. This very same commander took multiple measures to

20 train his personnel, to train his staff.

21 I have to slow down, Mr. President, for the sake of the

22 interpretation.

23 This is an officer who, as I have just said, never hesitated to

24 take measures to prevent and to put an end to the conflict with the HVO.

25 This very same commander took steps to form and to train the 3rd Corps

Page 10207

1 members. This commander on numerous occasions demanded of his

2 subordinate commanders that they take measures against all violations of

3 international humanitarian law. This commander incessantly asked his

4 subordinate commanders to report to him, and he put into place a system

5 to facilitate the exchange of information within the 3rd Corps. This

6 very same commander never hesitated to recommend to his superior

7 headquarters that they should try to improve the 3rd Corps. And as an

8 example, Mr. President, I mention the creation of operational groups.

9 And this goes together with the Prosecution's expert witness who was

10 asked about what one calls "the span of control."

11 Another example that I could provide you with, Mr. President, is

12 that there were recommendations from the 3rd Corps division to a

13 different course. And as another example, I could mention the report

14 prepared by General Hadzihasanovic with regard to the shortcomings of the

15 military judicial system by the district court, or in the case of the

16 district courts in Zenica and Travnik. This same commander, Mr.

17 President, used his military police battalion to an extreme. This was in

18 order to ensure that there was discipline within the 3rd Corps.

19 Mr. President, witnesses will appear before this Chamber to say

20 that if there is only one accused who is now being held in the UN

21 Detention Unit who, on the basis of his conduct merits the title of

22 general, that general would be General Hadzihasanovic. There are

23 witnesses who will be appearing before this Chamber to say that General

24 Hadzihasanovic would not accept any secondary measures, any measures of a

25 lower order. They will come to testify before this Chamber that if it

Page 10208

1 was possible for him to take any measures, he would never have hesitated

2 to do so. Mr. President, all of this demonstrates and will demonstrate

3 that the theory presented by the Prosecution doesn't hold water. Why

4 would a commander of such a kind, why would the commander who has all

5 these qualities, a commander who had taken all these measures, why would

6 he have omitted or why would he have failed to take measures in certain

7 specific instances?

8 I will now move on to the fourth part of my opening statement

9 which has to do with the evidence presented by the Prosecution, evidence

10 that will be contested. And Mr. President, I can see that there's a

11 special mistake on the screen before you, and I apologise for that.

12 These are the concerns of the witnesses for the Prosecution, Mr.

13 President. One should note that the Prosecution didn't find the means of

14 introducing witnesses from the 3rd Corps. Nevertheless, Mr. President, a

15 number of Defence witnesses will be witnesses from the 3rd Corps. We

16 believe that this is a factor that should be taken into consideration.

17 Mr. President, the issue of -- as far as the issue of international

18 witnesses is concerned, in one of its submissions, the Prosecution

19 claimed that international witnesses were useful, they were impartial,

20 and they can provide very -- that they can provide the Trial Chamber with

21 very precious information. But as my colleague stated -- my colleague

22 who represents the second accused in this case -- this depends whether

23 the same international witnesses were direct witnesses of the events or

24 whether they are just conveying hearsay information. Mr. President, we

25 believe that the Trial Chamber is in a position to differentiate between

Page 10209

1 an international witness who relayed relevant information on the basis of

2 the duties he had performed from another witness who relayed information

3 which was second-hand information or even third-hand information. We

4 believe that the Chamber can make this distinction.

5 We will be presenting international -- we will be calling

6 international witnesses, Mr. President, witnesses from the 3rd Corps as

7 well, and all these witnesses are prepared to come and testify. The

8 question of the expert witness, Mr. President, we have heard General

9 Reinhardt, one of the Prosecution's expert witnesses. He is a respected

10 man, and he was the deputy commander of NATO during a given period of

11 time. And this is no small matter. Nevertheless, Mr. President, the

12 Prosecution approached this witness as he wasn't only an expert in

13 matters of command and in military matters. The Prosecution tried to

14 present this witness as one who was an expert in legal matters, as an

15 expert who had good knowledge of the way in which the BH Army functioned,

16 as a witness who was an expert as far as mujahedin issues are concerned,

17 and an expert in international law.

18 Naturally, at the end of the trial, we will have the opportunity

19 of demonstrating the extent to which this testimony is flawed. But for

20 the moment, we are preparing to present our evidence, and we will be

21 calling expert witnesses, Mr. President. I will be in a position to tell

22 you who they are and what they will be testifying about in the near

23 future.

24 And then there's the matter of the Prosecution's documentary

25 evidence, which consists of about 1.000 documents. How many of these

Page 10210

1 documents were identified by witnesses? Very few of them. The documents

2 were admitted; they were tendered into evidence as if they had certain

3 relevance and as if they contained a sufficient level of reliability.

4 Mr. President, we believe that these documents, even though there

5 are witnesses who drafted them and testified about them, we believe that

6 this is an important factor which should be taken into consideration when

7 the Defence presents its evidence. Mr. President, there are certain

8 flaws in the Prosecution's evidence, and we would like to draw your

9 attention to these flaws. We believe, Mr. President, that these flaws

10 could swing this case in one particular direction. We haven't heard

11 about the historical context, very little, only a limited number of

12 statements in the Prosecution's opening statement. In the course of the

13 Prosecution's case, we heard nothing about the political context. And in

14 particular, we heard nothing about the Vance-Owen Plan which in our

15 opinion - and we will have the opportunity to discuss this subject - is a

16 key element in relation to what happened in Central Bosnia in 1993.

17 We heard very little about the constitutional context, and naturally,

18 it's by no means advantageous of the Prosecution to say that the BH

19 government was in favour of a multi-ethnic country. It would be

20 advantageous for the Prosecution to say that the responsibilities of the

21 accused -- or to proceed in a manner that would clearly identify the

22 accused's responsibilities before this Trial Chamber. We believe,

23 nevertheless, Mr. President, that this was the Prosecution's

24 responsibility to explain all these matters, at least to limit the

25 debate.

Page 10211












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 10212

1 But even worse, Mr. President, is the fact that the Prosecution

2 keeps using the term "zone of control" or "area of responsibility." This

3 is an issue that was raised long before the beginning of this trial. We

4 believe that the matter has been settled by the Pre-Trial Judge.

5 Nevertheless, in the Prosecution's submissions, they continue to use the

6 terms "zone of control" and "area of responsibility" in order to try to

7 make this an element of importance in relation to the

8 superior-subordinate relationship. We have heard very little, Mr.

9 President, about the opposition to the difficult context or difficult

10 situation that General Hadzihasanovic found himself in. The Prosecution

11 kept trying to close the debate. We will do the contrary, Mr. President.

12 We will open the debate, and we will provide such evidence to the Trial

13 Chamber.

14 As far as the context within command was exercised, Mr.

15 President, and we have mentioned this on a number of occasions already,

16 the purpose of this trial is to deal with the responsibility of the

17 commander. But the Prosecution in its evidence did not present any

18 information, any details about the number of units under General

19 Hadzihasanovic. There was no organisation chart representing the

20 3rd Corps. There was no organisation chart representing the command

21 structure of the 3rd Corps. No information was presented on the way in

22 which the 3rd Corps functioned, apart from in the case of witnesses who

23 came at the very beginning of the trial, witnesses who were supposed to

24 testify for the Defence. There was very little information about the

25 problems encountered by General Hadzihasanovic.

Page 10213

1 The Prosecution has tried to minimise the effect, the impact of

2 these problems. In a response to a request from the Defence to have

3 certain facts admitted - the 23rd of March was the date - there was

4 opposition to certain adjudicated facts on the exercise of command. And

5 we will have the opportunity to return to this issue.

6 I will now move on to the factual context. The flaws in relation

7 to the factual context have already been discussed. But I would like to

8 make a few general observations. As far as the identity of the alleged

9 perpetrators of crime are concerned, this has been to be date 12/1:53.

10 There's the question of the identity of the units involved. There's very

11 little information about these subjects that would allow the Trial

12 Chamber to establish superior-subordinate relationship. To the extent

13 that this is possible, we will provide the relevant information

14 concerning the location of 3rd Corps units at critical moments.

15 Mr. President, as far as the question of destruction is

16 concerned, and this is a relevant example, we have nothing about the

17 destruction that occurred in 1993. We have nothing about the precise

18 dates. The indictment doesn't refer to any precise dates. There is

19 mention of facts, or information collected by witnesses who had second-,

20 third-, or fourth-hand information. Yet, there were investigators who

21 were available. And finally as far as the issue of the presence of the

22 mujahedin is concerned, there were rumours, there were comments, there

23 were observations, videos which appeared out of the blue, and the

24 Prosecution attempted to narrate a story that did not tally with actual

25 events on the ground.

Page 10214

1 Mr. President, these flaws are flaws that the Defence will try to

2 correct. And Defence counsel will attempt to provide the necessary

3 information to the Trial Chamber to the extent that this is possible.

4 But what is even more important is the question of the measures taken by

5 the accused during the period relevant to the indictment. We have had

6 opportunity to address the matter of measures taken by the accused. But

7 what is even more important is that we are involved in proceedings that

8 deal with the command responsibility. And as the Prosecution stated, the

9 issue of the measures taken goes to the heart of the matter.

10 Nevertheless, nothing was said and nothing was done with regard to the

11 military court of the 3rd Corps. This was a court that existed within

12 the heart of the 3rd Corps command. Nothing was said, no investigations

13 were conducted with regard to the existence of special military courts.

14 When we discussed the issue of subordinate units, Mr. President, on the

15 basis of documents that have been tendered, there is evidence that

16 certain criminal plans were presented not only by the command of the

17 3rd Corps but also by subordinate units of General Hadzihasanovic. These

18 matters were not investigated. As far as the military police battalion

19 is concerned, and I alluded to this issue a little earlier on, the

20 Prosecution in its opening statement said that the accused even had a

21 military police battalion. Subordinate units had military police

22 battalions, but they did not do anything. Or as I'm referring to Exhibit

23 DH155/3 which is in evidence, it says that monthly reports for the

24 3rd Corps military police battalion, it says that there were 22.700

25 persons who were checked at checkpoints. There were 256 individuals

Page 10215

1 detained for a period of under 24 hours. 25 individuals were detained

2 for a 24-hour period in accordance with the law. 1.500 vehicles were

3 checked to see whether they contained goods that had been stolen. 24

4 criminal reports had been filed against 32 individuals, 3 were for war

5 crimes; 1 for an act of genocide; 1 for arm rebellion; 1 for a serious

6 offence; 1 for homicide; 1 for murder; 4 for theft; 6 for a special form

7 of theft; 1 for espionage; and 1 for failing to perform one's obligatory

8 military service. These were the results of the of the military police

9 batallion of the 3rd Corps, and this covers a one-month period. In the

10 course of the presentation of its evidence, Defence counsel will

11 demonstrate that such evidence quite simply does not fit in with the

12 theory presented by the Prosecution, according to which in certain cases

13 the accused failed to take measures.

14 Your Honour, I should like to address the fifth point, i.e., how

15 important background material is. I mentioned earlier on the flaws in

16 the Prosecution case that did not address the issue of background

17 material. I also stated that we would establish a distinction here and

18 clearly talk about background material. I've already talked about the

19 Rendulic case, and I shall not go over it again. The question of the

20 difference between the charges pursuant to Articles 7(1) and 7(1) [as

21 interpreted] justify my addressing it here. "If an accused or commander

22 of a unit" -- 7(1) and 7(3) -- "has personally committed a crime, if the

23 same commander has taken part personally in a crime, the context is not

24 so important. But in this particular case, when the commander has never

25 committed any crime, that this commander has taken a number of measures

Page 10216

1 to prevent and punish the perpetrators of the crimes, the context then

2 becomes crucial. This context is not something we are going to be using

3 in our arguments. This context is addressed today to enable the Trial

4 Chamber to understand what the work of General Hadzihasanovic entailed in

5 the light of the situation he was facing at the time.

6 The Defence will, therefore, in this particular -- at this

7 particular stage of the proceedings will address the historical,

8 political, and military background in this case. As far as the

9 historical background is concerned, the Trial Chamber has already

10 informed us of the fact that it was interested in having a historical

11 view of the situation pertaining to the 1990s. We felt it was important

12 to go back even further in time. You may have already read the report of

13 our historical expert. It is important, in our opinion, that this

14 witness come to the Trial Chamber and say to the Judges that the

15 territory of Bosnia was always recognised, with the exception of a short

16 interval during the Second World War. It is important for our Defence,

17 Your Honour, to hear the expert witness that as regards a history of

18 Bosnia, there always has been a multi-ethnic community and multicultural

19 community living in this country. People from different ethnic

20 backgrounds lived together and lived alongside each other. The

21 historical expert will tell you, just to give you an example, will tell

22 you where the differences lie, by quoting Switzerland, for instance, by

23 quoting Switzerland. The citizens enjoy a different status, but it is

24 easy to understand that they are spread in different regions or areas of

25 Switzerland. The same applies to Belgium where people live in different

Page 10217

1 areas, and you can locate each group according to geographical areas.

2 But this was not the case in Bosnia because people of different ethnic

3 backgrounds shared the same areas. The four main religions were living

4 alongside each other in Bosnia, whereas in other countries in Europe,

5 religion tended to overrule a number of other things. So it's very

6 important that the historical expert come and talk to the Trial Chamber

7 about these matters, that the expert witness tell the Trial Chamber that

8 the Commission Badinter was looking into this, was trying to understand

9 whether the regions of the former Yugoslavia did have the prerequisite

10 conditions to become independent states once again. Bosnia-Herzegovina,

11 1992, on the 6th of April, did fulfil all the prerequisite opinions set

12 out by the Commission Badinter in a democratic way and was recognised as

13 an independent country.

14 On that same day, Bosnia-Herzegovina was attacked. In the middle

15 of 1992, Your Honour, nearly half the territory of Bosnia-Herzegovina was

16 already occupied by the Serb forces. Bosnia-Herzegovina was not prepared

17 for war. This has been mentioned, by the way, on several occasions by

18 the Prosecution in the Blaskic case. The defence mechanisms for

19 citizens, the famous All People's Defence system, the system which had

20 been used before and the independence of Bosnia was, therefore, prevented

21 from happening. The political platform adopted by the Government of

22 Bosnia-Herzegovina will be explained to you by this expert witness. And

23 in line with the historical situation of Bosnia-Herzegovina will be

24 addressed. Bosnia-Herzegovina wished to have a multi-ethnic country,

25 notwithstanding different religious faiths and a number of other

Page 10218

1 criteria, and more importantly, which is what the expert witness will

2 tell us, was not able to achieve what it was after. It was impossible to

3 divide Bosnia without resorting to ethnic cleaning, and this was against

4 the ambitions of its government.

5 The political background, Your Honour, is my next point. On the

6 22nd of May, Bosnia-Herzegovina became a member of the United Nations and

7 became a fully fledged member of the United Nations. And as such,

8 Bosnia-Herzegovina was entitled to be protected by the other member

9 states of the United Nations. Rather than protecting Bosnia-Herzegovina,

10 the country was under an embargo. And because of this embargo, the

11 country was unable to find the weapons it needed to protect its country,

12 whereas on the Serb side, the Federal Socialist Republic of Serbia

13 supported this. And on the Croatian side, they were supported by

14 Croatia. And more importantly, an expert witness will come and tell you

15 that whilst Central Bosnia was striving to become an independent state,

16 the Croats in Bosnia were setting up a political party and a parallel

17 government which turned into, then, a parallel armed force. The

18 Vance-Owen Plan, which I mentioned earlier on, Your Honour, was probably

19 what led to the separation of Bosnia-Herzegovina on an ethnic basis.

20 This was a foundation of the plan. We have already had the opportunity

21 to hear an expert discuss this, discuss the acts of the Croats in Bosnia

22 with a view to implementing the Vance-Owen Plan by force, before the

23 Vance-Owen Plan had even been adopted.

24 Lastly, Your Honour, the anti-Bosnian propaganda by the HVO

25 forced transfer of people under the pretense of an attack in

Page 10219

1 Bosnia-Herzegovina; the objectives of the HVO, which were destroy the

2 civil bodies, set up parallel organisations, and to set up and conquer an

3 independent territory. Just as this very simple issue of propaganda we

4 have heard a lot about already; nevertheless, we would like to file a

5 number of documents in this regard, and we believe our historical expert

6 witness will be able to explain these documents. There was a political

7 will on the part of the HVO. As soon as it came to discussing the

8 Bosnian Army, it was addressed as "Muslim forces" or "MOS" or

9 "mujahedin." This was a propaganda tool which was used by the HVO.

10 The constitutional background, Your Honour, i.e., the running of

11 the state, the system in which command responsibility and position of the

12 commander was established. Most of the documents used by the

13 constitutional expert witness have already been filed before this Trial

14 Chamber, but there are a greater number of documents still to be filed.

15 The constitutional expert will explain which laws applied at the time;

16 which laws were replaced, i.e., the former laws; and which laws remained

17 unchanged at the time Bosnia-Herzegovina became a sovereign and

18 independent state. We need to understand the limited responsibility and

19 position of the accused. We feel this is a crucial issue, the type of

20 conflict we're dealing with. We have discussed with the expert from the

21 Prosecution a number of issues relating to different kinds of conflict.

22 He agreed with the fact that the most difficult conflict is a conflict

23 which occurs at home, on your own home ground. Your Honour, it was not a

24 question of talking about occupation. If certain territories were

25 occupied -- were occupied, it would be better to turn to the HVO and the

Page 10220

1 Serbs. The Prosecution tried to underestimate the importance of this.

2 This is important because it plays a part on the responsibility and the

3 position of the accused. We believe that this is a relevant factor.

4 Lastly, as far as the constitutional background is concerned,

5 which ties into the military background, the capital city in the country,

6 Sarajevo, was under siege. The economic power and military power were,

7 therefore, curbed. This became an obsession for the government of this

8 country, and this, thereby, exerting a lot of pressure on the accused; he

9 was to find the necessary measures to free Sarajevo. He was not alone in

10 achieving this. But this was an essential goal for the government at the

11 time.

12 The military background -- as I have told you, the capital city

13 was under siege. The Territorial Defence was not ready or not prepared

14 for war. An army was set up with all the pitfalls and difficulties one

15 can imagine. The army needed, as can be stated in the documents we will

16 adduce, the army was to replace the Territorial Defence. Changes were

17 also made in the Territorial Defence, but this shift was not done

18 overnight. This is a process which lasted over a year. And during the

19 Defence case, we shall show how the Territorial Defence was turned into

20 the Bosnia-Herzegovina Army, and what kind of relationship existed

21 between the two, what communication systems and what

22 superior-to-subordinate relationship theres were, what kind of links

23 there were between the army and the civil bodies, between the army and

24 the Territorial Defence. We shall also, Your Honour, talk about

25 mobilisation or call-up, and all the problems relating to the All

Page 10221

1 People's Defence system.

2 We shall also discuss what the particular assignment of the

3 accused was. His assignment had nothing to do with the setting up of the

4 3rd Corps. The assignment allotted to General Hadzihasanovic was to go

5 onsite and take control of the existing units, brigades, according to the

6 information received from Sarajevo, that were on the spot. General

7 Hadzihasanovic came to Zenica. He met the person who was going to become

8 his deputy, General Merdan. The latter was the commander of the military

9 district of the territorial force in Zenica. He had received

10 instructions and had been asked to set up a 3rd Corps with its units and

11 brigades. We shall explain in the course of the Defence case in which

12 way, having seen that he could not fulfil his assignment, in which way

13 the General Hadzihasanovic realised that his assignment got -- was

14 changed, and he was asked to set up of the 3rd Corps. He was asked to

15 make sure that the front line on the border with the Serb forces be

16 maintained. And lastly, whenever possible, he was asked to bring in

17 enough men to free the capital city Sarajevo.

18 We shall talk about the first attempt -- in fact, it was not the

19 first attempt, but the first attempt after the arrival of General

20 Hadzihasanovic in Zenica. The first military operation conducted by the

21 latter which was an attempt to free the capital city, but this failed.

22 The witnesses and the military experts will talk about the alliance or

23 the artificial alliance between the HVO and the Army of

24 Bosnia-Herzegovina. Witnesses will talk to you about the fact that at

25 the time General Hadzihasanovic arrived in Zenica, there had already been

Page 10222

1 problems between the HVO and the Army of Bosnia-Herzegovina. In other

2 words, there had been clashes. The expert -- the military expert and

3 other witnesses will talk about all the measures taken by General

4 Hadzihasanovic to prevent a conflict between these two entities. Why?

5 Because he was a responsible commander, and he knew that if he were to

6 set up a second front inside his area of responsibility, that this would

7 be doomed. This area of responsibility, Your Honour, was a very large

8 area of responsibility. It ran from the north, Maglaj; to the west,

9 Gornji Vakuf; to the south, Visoko; just about reaching Sarajevo and to

10 the east in Vares. There were something like 400 and 500 kilometres of

11 front line with the Serb forces. In other words, the front line, Your

12 Honour, was about as long as the distance from The Hague to Paris. You

13 need a number of soldiers to fill the front line when it is that long.

14 You need a lot of resources. And it was essential for General

15 Hadzihasanovic to be in contact with the HVO and prevent other

16 territories being occupied by the Serb forces.

17 It is important to mention that in the Blaskic case, the

18 Prosecution described the territory covered by Bosnia-Herzegovina as a

19 very large territory. In the current case, in the opening statement of

20 the Prosecution, we talked about a small territory, not a very large one.

21 However, the same Prosecution in two different cases with two different

22 objectives.

23 I could go on and talk about shortage of resources, shortage of

24 qualified personnel, shortage of weapons, shortage of -- or difficulty of

25 dealing with the HVO, who became -- who turned out to be an enemy. They

Page 10223

1 were to have a common enemy i.e., the Serb forces. It turned out to be

2 different.

3 A number of factors have an impact on command and control. What

4 you see here on your screen are those factors which had been mentioned by

5 the Defence team when it tried to have a number of facts admitted which

6 had been admitted in other cases. The Prosecution had then objected and

7 stated that these facts had nothing to do with the responsibility of the

8 accused, as related to his duty which was to take necessary and

9 reasonable measures. The state of preparation, resources, and sufficient

10 weapons is something which would be addressed by the military expert.

11 These are important criteria which have an impact on everyday life, on

12 command and control, on how attacks on the enemy forces -- which means

13 that the commander, as the military expert will tell you, the commander

14 has to sometimes change his plan. He has to allocate resources where he

15 hadn't initially intended to allocate them. And as the commander takes

16 all of these decisions, this may change his priority. His first and

17 foremost objective is to fulfil his assignment. The commander has to

18 think about everything all at once. This is what the military expert

19 will tell you. A commander who, like in the present case, is confronted

20 with an ultimatum at the end of January 1993 at Busovaca, Novi Travnik,

21 and Gornji Vakuf all at once is something which will change the

22 priorities of a corps commander in a very significant manner.

23 Another factor with I addressed a little earlier on was the HVO.

24 The HVO was supposed to be an ally. We had already asked the HVO in

25 December 1992 to take part alongside the Serb corps to the freeing of the

Page 10224

1 town of Sarajevo. And this was not granted.

2 All these factors combined will be set against a backdrop of the

3 military context. The military expert will address these issues, but

4 other witnesses that have experienced some of these events will also

5 address these issues. And I hope, Your Honours, that you understand how

6 these factors can have an impact on the way in which a commander runs his

7 operations.

8 The sixth point of my opening statement deals with the witnesses

9 that will be called by the Defence. Who are these witnesses and what

10 will they talk about? I've already had the opportunity to talk to you

11 about some topics which will be addressed by these witnesses. As we

12 mentioned earlier on, we shall call 70 witnesses, and there might be a

13 few additional witnesses we shall add to this list. Of course, Your

14 Honour, it is important to understand that these witnesses will not come

15 to confirm the Prosecution's statements. But if these witnesses talk

16 about facts which are different from those presented by the Prosecution

17 witnesses does not mean that the witnesses are not telling the truth.

18 These witnesses will come and give their version of the facts. It will

19 not be a smokescreen, but this will be the truth, Your Honour.

20 We have called a number of military experts. At the pre-trial

21 hearing, the Trial Chamber informed us that it would be useful to let the

22 military expert witnesses know that after having taken the solemn

23 declaration, they no longer belong to the Defence team but belonged to

24 the Judges. We hadn't quite understood what this meant. We didn't

25 understand what the Trial Chamber was conveying to us at this point.

Page 10225

1 What we can say, Your Honour, is that these witnesses -- and we agree

2 that these witnesses belong to justice and that they can be

3 cross-examined by the Prosecution. And we hope they will be

4 cross-examined by the Prosecution so that the Trial Chamber can fully

5 benefit from their testimony.

6 As I have mentioned, we shall also call international witnesses

7 who will come and testify here. These are military experts, people who

8 were part of the British Battalion, witnesses who were members of the

9 ECMM, and witnesses from a number of international organisations. I

10 would like to seize this opportunity, Your Honour, to inform you of the

11 fact that we shall have to turn to the Trial Chamber in order to obtain

12 orders and send subpoenas out to a number of witnesses working for

13 international organisations, or to ask international organisations to

14 produce a number of documents. We shall file these motions in the next

15 few days.

16 Lastly, Your Honour, I should like to talk about the question of

17 expert witnesses. I should briefly like to tell you what these witnesses

18 are going to talk about. I should like to first of all talk about the

19 constitutional expert. He will talk to you about the way the state was

20 dismantled: the constitutional system before the war was declared, the

21 constitutional system after the war was declared, how the governmental

22 bodies operated during the war, and how all of this had an impact on the

23 area of responsibility of the 3rd Corps.

24 As far as the military expert is concerned, in addition to the

25 topics I have already addressed, he will talk about the command chain,

Page 10226

1 Your Honour. This is an essential item to be taken into consideration in

2 this case. When dealing with an army corps, an army corps has a chain of

3 command that goes right down to its lowest level, i.e., a platoon

4 commander. When the time comes to take measures relating to a particular

5 fact, whether it be a military operation or to prevent or to punish, the

6 primary responsibility is, of course, to be there at the time a violation

7 takes place. In other words, you cannot expect a corps commander who has

8 more than 30.000 men under his control, you can't expect a commander to

9 do everything himself. He has a chain of command. He needs to use it.

10 And he is entitled to understand what is happening along this chain of

11 command.

12 I can draw a parallel here. I was talking about the Renault

13 model. Renault is a very large company. It is quite clear, Your Honour,

14 that if the Formula 1 Renault team in China is taking part in a race and

15 that a crime is committed, a theft is committed by one of the teams of

16 Renault in China, you cannot ask the CEO of the company to be the first

17 man to be informed and to be the man who takes the necessary measures.

18 Mr. President, it is obvious that this is a model which is quite

19 different from the models we have in military situations, but we believe

20 that it is a good example to give you an idea of the scale in question.

21 The corps commander followed operational developments, followed what was

22 done by brigades and by units. This is an important issue that should be

23 underlined in these proceedings. There are also various levels of

24 operation, Mr. President. And this is a matter that we will discuss with

25 -- this is a matter that we discussed with the expert witness of the

Page 10227

1 Prosecution when we asked him questions about the tactical level and the

2 operational level and the strategic level on the basis of the posts

3 occupied, on the basis of the level occupied, the functions of an officer

4 are not the same. His responsibilities are not the same. And this is

5 something that the Trial Chamber must take into consideration.

6 The role of a corps commander, in our opinion, and the level of

7 command is an issue that is very relevant in this case.

8 We have a fourth expert witness, Mr. President, who will address

9 the matter of command and control. And I would like to take the

10 opportunity to inform you that the military expert is an expert from

11 Bosnia and Herzegovina. And he held the post of commander of the BH Army

12 1st Corps at about the same time that General Hadzihasanovic held his

13 position. The person in question is General Karavelic. I would also

14 like to tell you that I'm mentioning this issue because this witness is

15 someone who will inform the Trial Chamber about the notion of the zone of

16 responsibility and about links that exist between units, to inform the

17 Chamber about a notion such as operational command, operational control,

18 and tactical control. And he will also address the issue of

19 administrative support. This former officer was a member of a number of

20 armies in different countries, and he will be in a position, and this is

21 what we believe, Mr. President, he will be in a position to inform the

22 Trial Chamber about the possibility of seeing that there are independent

23 units that exist and function outside the control of the forces involved

24 in the conflict, in spite of the fact that they're located within the

25 same theatre of operations. He will testify this is quite natural in the

Page 10228

1 course of an armed conflict.

2 I will now move on to the subject of the mujahedin, Mr.

3 President. This is an issue which gives rise to much emotion. Who are

4 the mujahedin? Defence counsel can certainly not deny that there were

5 people present there. There were people who were in Central Bosnia in

6 1993 whom we could call the mujahedin. Nevertheless, how many of them

7 were present there? There are witnesses who will testify about this, and

8 you have already heard a number of witnesses, and it was claimed that it

9 was not possible to know exactly how many such people there were. The

10 fact that HVO propaganda existed -- and witnesses will testify about

11 this -- this was propaganda which had an adverse effect on them, they

12 used the mujahedin for propaganda purposes in order to portray the BH

13 Army in a negative light. They also used the mujahedin factor in order

14 to force their own population to abandon certain areas. But at the same

15 time, they strived to create a myth for all the people present in

16 Bosnia-Herzegovina. The mujahedin, Mr. President, weren't under single

17 command. It wasn't an armed force. These people came from a number of

18 countries, from European countries or from other countries.

19 Witnesses will also testify about all the measures taken by the

20 accused in order to try and deal with this problem, the effect of which

21 was more negative within the 3rd Corps. It did more harm than good. How

22 could one think that the 3rd Corps, that did everything in order to

23 prevent a conflict from breaking out with the HVO, how could one think

24 that such a corps wanted to use the mujahedin in operations? These two

25 factors quite simply don't go together. This would have been contrary to

Page 10229

1 the strategy pursued by the government. The government's strategy was to

2 have a multi-ethnic country. This would be contrary to all the evidence

3 that you have heard and it will be contrary to all the evidence that you

4 will hear in the course of the Defence case.

5 One of the witnesses whose name appears on the screen before you,

6 is one who -- is a witness who drafted the plan for forming this

7 notorious unit called El Mujahed. Witnesses will explain in greater

8 detail where these people came from. They will explain what they did,

9 and they will testify what the 3rd Corps attempted to do in order to deal

10 with the problem. And finally, evidence will be presented to show that

11 the attempt to create the El Mujahed unit failed. Unfortunately, the

12 incomplete theory by the Prosecution, which was based on international

13 witnesses who did not see or meet the mujahedin, renders the situation

14 somewhat more difficult.

15 On the 11th of September 2001 -- I apologise. On the 11th of

16 September 2002, something tragic happened in New York. Since that time,

17 the world has a better understanding of the issue of terrorism, of the

18 issue of the mujahedin. It has a better understanding of people who

19 belong to no country in particular and whose ideas oppose all the ideas

20 that states have. The world has a better understanding today of the

21 danger that such people represent. Nevertheless, we do not yet

22 understand the phenomenon of the mujahedin; but we have a better

23 understanding today of all the complex issues that are a result of this

24 phenomenon. It would be illusory to believe that the situation was any

25 different in 1993. On the contrary, these people were present in the

Page 10230

1 field and someone allowed these people to enter Bosnia-Herzegovina.

2 Nevertheless, one should not leap to the conclusion that because there

3 were people who were present in the field - and this has been

4 demonstrated by the evidence - these people tried to influence the local

5 people. They tried to buy the loyalty of the local people. They had

6 links to religion. They tried to use their money to buy local people.

7 But it would be leaping to conclusions if one said that these people were

8 linked to the BH Army. The witnesses who appear before you will come to

9 explain this phenomenon to you. They will explain to you how this

10 cohabitation - if we can use the term, because they were in Bosnia - they

11 will explain to you how it was possible for such cohabitation to exist.

12 But the witnesses who appear before the Chamber, Mr. President, will

13 explain how people who were very close to senior officers in the BH Army

14 were not only not loved, they will explain that they weren't even good

15 soldiers and they will explain that they were problematic, and this was a

16 situation that had to be dealt with in Central Bosnia in 1993.

17 Naturally, this case has to do with that year, 1993. But the

18 fact that in 1994 the problem still had not been resolved is also a

19 factor that confirms that these people had no links to the army. And

20 General Hadzihasanovic, the accused, shouldn't pay for what the mujahedin

21 did and shouldn't pay for what happened on the 11th of September simply

22 because he was in Bosnia-Herzegovina at the same time as people whom one

23 calls mujahedin were present there.

24 I am coming to the end of my opening statement, Mr. President,

25 and I would like to address the issue of applicable law. In the

Page 10231

1 essential elements of command responsibility, ones that have been

2 discussed, we've discussed at the beginning the relationship between

3 superior and subordination; we discussed whether the commander knew or

4 had reason to know about crimes committed; and we discussed the matter of

5 measures that were necessary or reasonable to take. As far as the

6 superior-subordinate relationship is concerned, Mr. President, we will

7 discuss the matter of areas of responsibility, and this is an issue that

8 has nothing to do with the issue of the superior-subordinate

9 relationship. Perhaps we have not understood the Trial Chamber's

10 decision in regard to the motion for acquittal. This is an important

11 issue that has already been dealt with, in our opinion, and we believe it

12 is an issue that has been debated in other proceedings as well.

13 The second question, Mr. President, the relationship of the

14 superior and subordinates, and analysis of this matter in the Blaskic

15 case. In this case, the Trial Chamber mentioned the necessary analysis

16 that had to be carried out to show whether a commander had effective

17 control over his forces, over armed forces. The expert witness, just

18 like other witnesses, will appear to explain that this idea of superior

19 and subordinate relationship had nothing to do with the idea of areas of

20 responsibility or zones of control. As far as the issue of knowing or

21 having reason to know is concerned, in the Blaskic -- the Blaskic Chamber

22 pointed out that this concerns real information that a commander should

23 dispose of. The Appeals Chamber also established that it could not be a

24 matter of assumptions. And above all, it was established that a

25 commander could not be held responsible for not having tried to obtain

Page 10232

1 information. And finally, as far as the issue of measures is concerned,

2 there's the issue of standards or of the level of caution demanded, and

3 reference the standard we suggest the Trial Chamber should use. On a

4 number of occasions in the pre-trial brief of the Prosecution, the issue

5 of obliging a commander to take immediate measures was addressed. And

6 this question, the issue of taking measures immediately, if I can put it

7 this way, the question of immediacy is one which is defined in different

8 manners depending on the context. The expert witness for the Prosecution

9 discussed this. Our witnesses will do the same.

10 A few legal issues: Very briefly, I would like to inform the

11 Trial Chamber about testimony that concerns opinions. This was an issue

12 raised in the course of the Prosecution case. The Trial Chamber has

13 decided to accept testimony based on witnesses' opinions. This is an

14 issue that might make the Chamber's task more difficult. At least, this

15 was what we argued at the beginning of the case. Nevertheless, the

16 witnesses that we call will also come here to express their opinions,

17 when this is relevant.

18 As far as circumstantial evidence is concerned, it is important

19 to us, Mr. President, to point out that circumstantial evidence must take

20 into account all the evidence in regard to certain fact before any

21 conclusions can be drawn. I'm referring to the inferences that one can

22 make on the basis of evidence. This would be the English term. And it

23 is our opinion, with all due respect, Mr. President, that before drawing

24 any inferences from circumstantial evidence, it is necessary to take into

25 consideration all the evidence in existence with regard to any given

Page 10233

1 fact.

2 As far as the question of armed conflict is concerned, the Trial

3 Chamber decided not to rule on this question. The Defence will attempt

4 to present a Defence case which takes into consideration both

5 possibilities. Finally, there are imprecisions in counts, 5, 6, and 7.

6 Mr. President, when the Defence raises such an issue, this is a legal

7 issue. It does not have to do with the ultimate means of defence. The

8 Trial Chamber noted that we have all the evidence that concerns counts 5,

9 6, and 7, and the evidence already shows that the accused took all the

10 measures necessary in relation to what is contained under counts 5, 6,

11 and 7. But we believe that when the Prosecution did not comply with its

12 duties to be more specific in regard to these counts, we believe that

13 it's therefore our possibility to point the fact out and to leave if to

14 the Trial Chamber to decide about the degree of precision that should be

15 required of the Prosecution in this case. This is not a technical issue;

16 it is a question that is in the interests of justice. It is in the

17 interest of -- it is in the interest of justice and it will be of benefit

18 for the final judgement.

19 I will now address the issues contained in the last part of my

20 opening statement, and this explains in relation to each count, what the

21 Defence wants to demonstrate when calling its witnesses with regard to

22 each particular count. I suggest that we have a break now, and I will

23 then require about another 20 minutes to conclude Defence counsel's

24 opening statements. Thank you, Mr. President.

25 JUDGE ANTONETTI: [Interpretation] It's now 5.20. We will have a

Page 10234

1 break, and we will resume at about 10 to 6.00.

2 --- Recess taken at 5.20 p.m.

3 --- On resuming at 5.54 p.m.

4 JUDGE ANTONETTI: [Interpretation] Mr. Bourgon, you may take the

5 floor to commence with the ninth part of your opening statement.

6 MR. BOURGON: [Interpretation] Thank you, Mr. President.

7 Your Honours, Mr. President, I will now move on to the last part

8 of Defence counsel's opening statement. This part deals with the

9 specific manner in which we intend to present evidence pertaining to the

10 counts in the indictment; first of all, as far as Count 1 is concerned,

11 this count concerns Dusina. The Trial Chamber in its decision on the

12 motion for acquittal decided that there was evidence -- to draw the

13 conclusion that the crimes committed in Dusina were committed by men who

14 were under the control of the accused. This took place on the 26th of

15 January 1993. And it allowed one to conclude that the accused knew, had

16 reason to know that these crimes had been committed, and nevertheless no

17 measures were taken. Very briefly, Mr. President, we could inform you of

18 the fact that in the eyes of the Defence, this is an event of much

19 importance. It is a strictly military affair, at least that's how it

20 appears in the light of the evidence presented.

21 But to conclude on this basis that the perpetrators of the crime

22 were under the control of the accused is something that will be commented

23 by on the witnesses. They will testify that there are certain doubts

24 about the perpetrators who committed the crimes. But I'd like to deal

25 more with the question of knowledge, Mr. President, and by addressing the

Page 10235

1 matter of the meeting that was held and at which Colonel Blaskic -- Mr.

2 Blaskic attended the meeting, and the Prosecution drew the conclusion

3 that the accused had knowledge of the events of the 26th of January 1993.

4 We will explain the context within which this meeting was held, and

5 witnesses will come to explain what happened at the meeting. They will

6 say who was present at the meeting and in what manner the information was

7 relayed by Colonel Blaskic on this occasion. And on this basis we'll

8 claim that the accused didn't have any knowledge. Nevertheless, Mr.

9 President, the Defence believes that measures were taken with regard to

10 Dusina. An investigation was conducted, and witnesses will come to

11 testify about this before the Trial Chamber in the course of the Defence

12 case. As I said earlier on, the importance of this event is that no

13 mujahedin were involved in this event, and this will enable the Defence

14 to underline the measures taken by the accused in such a situation and

15 just as the accused took measures in connection with other situations

16 which are already in evidence.

17 As far as the count concerning Miletici is concerned, we will

18 show that these crimes were committed by people who were not under the

19 control of the 3rd Corps. These crimes were in this case perpetrated by

20 the mujahedin. There are witnesses who will appear to testify how these

21 people who were not members of the 3rd Corps committed the crimes in

22 Miletici. As far as knowledge in the case of Miletici is concerned, as

23 the Prosecution has already stated, the deputy commander of the 3rd Corps

24 was at the site on the day following the crimes in Miletici, and he will

25 be in a position to explain to you in great detail the measures that were

Page 10236

1 taken at the time, in spite of the fact that, according to the Tribunal's

2 jurisprudence, it was not his responsibility to take any steps or

3 measures at that time.

4 As far as the issue of Maline is concerned, the crimes that were

5 committed in June, witnesses will appear to testify about the crimes

6 covered by Count 1, and they will testify that these crimes were

7 perpetrated by people who were not members of the 3rd Corps. The men who

8 were killed on that day were killed by the mujahedin, and they included

9 masked, local people. But all these people were not under the control of

10 the 3rd Corps. The witness will explain exactly how groups were

11 separated on that day. We will hear explanations about how the people

12 who were killed on that day were literally kidnapped, taken from the

13 hands of the BH Army, and they were then taken to a place where they were

14 executed. Evidence has already demonstrated that certain measures were

15 taken, and witnesses will come to provide additional explanations about

16 when people who were members of the 3rd Corps first came to know about

17 these crimes. And they will come to testify about the measures they took

18 at that time.

19 As far as count 3 is concerned and with regard to Orasac, the

20 Trial Chamber drew the conclusion that there was evidence allowing one to

21 draw the conclusion that the people who had committed murder by ritual

22 beheading were under the control of the 3rd Corps and that the accused

23 knew or had reason to know about this and nevertheless failed to take any

24 measures. The Defence will have recourse to a certain number of

25 documents and a certain number of witnesses to contest these three

Page 10237

1 crimes. First of all, the people who committed the crime in Orasac were

2 mujahedin who weren't under the 3rd Corps and were in no way were they

3 members of the 3rd Corps. They had no links with the 3rd Corps. As far

4 as knowledge is concerned, he had absolutely no knowledge of these

5 events. If people within the 3rd Corps, and this doesn't involve the

6 accused, if they had any knowledge of the crimes in Orasac, they had

7 knowledge of the kidnapping and legal detention. This is the only kind

8 of knowledge they might have had, but they never had any knowledge about

9 the crimes that were committed in Orasac. In addition, a number of

10 measures were taken, and witnesses will appear before the court to

11 explain to you, Mr. President, how everyone was attempting to discover

12 what exactly happened in Orasac, whether it's the BritBat or the

13 International Committee of the Red Cross, or the EC Monitoring Mission,

14 or members of the operational groups, member of the Bosanska Krajina

15 Operational Group. All these groups took measures to try and determine

16 what exactly happened in Orasac.

17 As far as Count 3 is concerned and as far as the situation

18 involving a detainee known as Havranek is concerned, the Defence counsel

19 will show that the accused had no knowledge of these events.

20 Nevertheless, measures were taken; measures were taken by a subordinate

21 of the accused without the accused being aware of them. And as far as

22 Count 3 is concerned and the murder at Zrno, it is our respectful

23 submission that it has already been proved that this person wasn't killed

24 by people under the 3rd Corps. These persons were not killed by

25 3rd Corps members. We will also deal with the issue of knowledge and the

Page 10238

1 measures taken after this crime was committed.

2 As far as Count 4 is concerned, and more specifically as far as

3 the music school is concerned, the Defence will strive to demonstrate

4 that measures were taken once the accused had been informed that crimes

5 may have been committed in the music school. We will demonstrate that

6 under the circumstances that prevailed at the time, the accused did take

7 certain steps. As far as the music school is concerned, Mr. President,

8 witnesses will come to testify that the events don't have the scope

9 claimed by the Prosecution. Contrary to what the Prosecution claims, not

10 everyone knew what was happening in the music school.

11 As far as the crimes in Travnik are concerned, witnesses will

12 come to show that there was no knowledge of these events, and documents

13 will be provided to support this claim.

14 As far as Mehurici is concerned under Count 4, the crimes that

15 took place in Mehurici should be divided into two categories. First of

16 all Defence counsel will try to show by having recourse to its witnesses

17 that there was no maltreatment in the Mehurici secondary school.

18 Secondly, Mr. President, Defence counsel will prove that the accused

19 never had any knowledge of the crimes committed in Mehurici, whether they

20 were committed in the elementary school or in the blacksmith's shop.

21 As far as Orasac is concerned, I'll refer to the same arguments

22 already presented. They're also valid for Count 4.

23 As far as the Sretno Motel is concerned, Mr. President, the Trial

24 Chamber concluded that there were elements that might allow a reasonable

25 jury or a reasonable judge to come to the conclusion that these crimes

Page 10239

1 were committed by people who were under the effective control of the

2 accused. And the accused could have had knowledge of these crimes, and

3 yet measures weren't taken. In these cases, Mr. President, our Defence

4 will be that the perpetrators of these crimes were not under the control

5 of the 3rd Corps and the issue of knowledge of these crimes will also be

6 contested.

7 As far as Bugojno is concerned, Mr. President, first of all,

8 there's the question of the bank in Bugojno. Defence counsel will

9 demonstrate through evidence that has already been heard and through

10 witnesses and documents that there was no maltreatment in the Bugojno

11 bank. As far as other detention centres are concerned, each of these

12 locations we will challenge the superior-subordinate relationship as well

13 as the issue of knowledge and the measures undertaken by subordinates of

14 the commander without him knowing it.

15 As far as Count 5 is concerned and destruction, as we have

16 already heard during the Prosecution case, the Defence wishes to

17 demonstrate that there has been no destruction, or not enough to render

18 this destruction a violation of international law. There has been no

19 destruction of towns and villages, as it has been stated. Your Honour,

20 we will also demonstrate that the evidence adduced by the Prosecution, we

21 will demonstrate that the Prosecution witnesses which -- who state that

22 they saw these areas being destroyed, they could not see the destruction

23 and what they reported is insufficient grounds to allege such a crime.

24 Also, we can demonstrate that a number of measures were taken as regards

25 destruction.

Page 10240

1 As far as Count 6 is concerned and looting, Your Honour, we don't

2 have the names of the people who looted the property. But we have

3 witnesses who can state that the looting did not take place during the

4 military operations, but after. In this case, the identity of these

5 people is crucial. We don't know who these people were, and this is a

6 very important element. However, we do have evidence, and evidence we

7 will adduce pertaining to the number of measures taken by the accused

8 against people who committed these offences to prevent these offences

9 taking place.

10 Lastly, Your Honour, as far as Count 7 is concerned, i.e.,

11 destruction of institutions dedicated to religion, there has been no

12 destruction in Guca Gora nor in the Jean Baptiste Church in Travnik.

13 These people had no connection with the 3rd Corps. It has already been

14 demonstrated and will be further demonstrated during the Defence case.

15 In the same way, Your Honour, a number of measures were taken without

16 looking into the facts that these acts were committed by people who had

17 no connection with the 3rd Corps. Going well and beyond the

18 responsibility, the subordinates of the accused took the necessary

19 measures despite this to make sure that the damages be repaired and that

20 the offenders be punished.

21 Your Honour, very briefly, this is in essence the evidence that

22 will be adduced in the course of this trial. More importantly, the issue

23 of measures comes up again and again. In its response to the motion

24 filed by the Prosecution for acquittal, the Prosecution has asked to

25 reverse the burden of the proof. This burden of proof has been denied by

Page 10241

1 the Trial Chamber and has confirmed that the Prosecution had to prove

2 whether one way or another that it is the -- this rests on the

3 Prosecution to clearly demonstrate that the necessary measures were not

4 taken. Conversely, we would like to show that the measures were taken,

5 the necessary measures were taken contrary to what the Prosecution has

6 stated. However, Your Honour, we will call a number of witnesses who

7 will explain to what extent the subordinates of the accused were

8 prepared, or measures that were prepared to do to prevent such offences

9 from occurring and were prepared to punish people who were about to

10 commit these offences. When these people came under the control of the

11 3rd Corps, in very special cases -- in a particular case, we may explain

12 that the 3rd Corps -- or even if these men committing these offences were

13 not under of the control of the 3rd Corps, General Hadzihasanovic, the

14 responsibility of the subordinates was also taken into account, and they

15 took all the necessary measures to prevent this from happening.

16 I shall now reach my conclusion, Your Honour, conclusion I shall

17 make at the end of my opening statement. I should like to remind the

18 Trial Chamber that in the name of General Hadzihasanovic, at the time we

19 wish to adduce evidence, it is important to assess the charges in a

20 global context. These charges cannot be considered in an isolated

21 manner. We cannot perceive these as being isolated incidents with no

22 connection with one another. It is the overall situation in Bosnia in

23 1993 that needs to be looked into. It is the overall military context

24 which needs to be addressed in which the accused -- which the accused

25 faced; also the fact that the accused took a number of measures to

Page 10242

1 prevent these offences from taking place and preventing those men under

2 his control in the 3rd Corps from committing such offences.

3 The Defence respectfully submits, Your Honour, how important it

4 is to not lose sight of the objective in this case, the objective of

5 command responsibility in this particular case. This is what the whole

6 case hinges on. The commander Hadzihasanovic: Did he behave in a

7 responsible manner or not? Did he move away from the common standard,

8 which would mean that he behaved like a criminal? The Defence

9 respectfully submits that the evidence adduced so far demonstrates the

10 contrary. And the additional evidence that the Defence will present will

11 confirm this.

12 Lastly, Your Honour, the question we need to ask ourselves at the

13 end of the trial is not to know whether General Hadzihasanovic should be

14 sentenced or convicted. If another commander had been in General

15 Hadzihasanovic's shoes, how many additional crimes would have been

16 committed in Central Bosnia? This officer commanded in an impossible

17 situation and was able to prevent crimes from being committed on a much

18 larger scale. The accused was able to set up and train his men in the

19 3rd Corps and save the situation in Central Bosnia and make sure that

20 this army which had been set up from scratch was turned into a

21 professional army which was able to be deployed in the country over the

22 next few years.

23 As also, we have to put this to the test and compare it with the

24 Yamashita trial. I quoted some exerts from the Yamashita trial. The

25 Yamashita case is something quite specific. We need to remember that in

Page 10243

1 this particular case, the only real trial involving command

2 responsibility, there were 123 offences that had been alleged which came

3 under the one and single count that this person was tried for. In other

4 words, he had not fulfilled his job as a commander. 153 offences had

5 been committed by his subordinates. More than 25.000 victims as a result

6 of it, in the Philippines. And a superior-subordinate relationship had

7 been established between the perpetrators of these acts and General

8 Yamashita. And the total failure by this commander to take the necessary

9 measures in these circumstances. And this officer was a military

10 governor, and in this case the area of responsibility took on a

11 particular legal importance. General Hadzihasanovic's case is quite

12 different. General Yamashita was proved guilty.

13 Your Honour, when we look into the Yamashita case which was heard

14 before the Appeals Chamber of the supreme Court of the United States, I

15 strongly recommend the Trial Chamber read the opinion of the judges in

16 this case. The dissenting opinion put forward by the judges did clearly

17 talk about the miscarriage of justice in this particular trial pertaining

18 to the facts I have just mentioned. In the first trial, in the very

19 first trial where command responsibility was [as interpreted] an issue

20 before the International Tribunal, we don't want this to be repeated

21 again. The case law of the International Tribunal has been clearly

22 spelled out when it comes to providing various evidence material, and we

23 are convinced that the evidence material adduced by the Defence will

24 convince the Trial Chamber that General Hadzihasanovic should not be

25 tried before this Tribunal.

Page 10244

1 Your Honour, the facts adduced as evidence are totally different

2 to what has been presented by the Prosecution for all the measures taken

3 are contrary or stand counter to the fact the person in question would

4 have omitted to take the necessary measures.

5 Also, the proof of morality of General Hadzihasanovic. This

6 evidence stands counter to the evidence presented by the Prosecution.

7 How can anybody with such qualities, things which people still

8 corroborate, how could anybody who has taken such measures, how could

9 anybody of this kind omit to take any necessary measures? This stands

10 counter to the evidence already adduced in this case.

11 Lastly, Your Honour, I would just like to finish off by saying

12 that the issue of international criminal law and beyond all reasonable

13 doubt issue needs to be addressed here. Some people believed or some

14 people try to convince me that beyond any reasonable doubt is not a

15 criterion which suffices and that the accused must prove his innocence.

16 I don't agree with this. I trust in the international legal system, and

17 I am sure that at the end of this trial, once you will have heard and

18 seen the documentary evidence and the testimony which the Defence will

19 adduce, that if there were still a doubt in the minds of the Judges of

20 this Trial Chamber as regards responsibility of General Hadzihasanovic as

21 a commander, in light, of course, of command responsibility and criteria

22 to be applied, I am sure the Trial Chamber will acquit General

23 Hadzihasanovic of all the counts charged in the indictment.

24 International criminal justice and the well-being of international

25 criminal justice depends largely on the justice rendered.

Page 10245

1 Your Honour, I would lastly talk about the completion strategy of

2 the International Tribunal. We thought that the way in which the Defence

3 team adduced some of the evidence during the Prosecution case, this could

4 terminate this trial. We feel that this is not warranted, and we feel

5 this should not be -- case should not be tried before this International

6 Tribunal. We are prepared to fully conduct the Defence relating to each

7 count in the indictment, and the Defence will endeavour to do this over

8 the next few months. We shall not bear in mind the completion strategy,

9 whether it be in June or before. The Defence team is convinced that it

10 will be able to provide you with the -- sufficient evidence material

11 enabling you to acquit General Hadzihasanovic for each count in the

12 indictment.

13 I thank you, Your Honours. I have completed my opening

14 statement, and I shall give the floor to my colleague who will address

15 the issue of the first witnesses who will be called into this courtroom.

16 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon. Before

17 giving the floor to your colleague, I would like to read Article 84 bis,

18 which is the opening statement has just been made pursuant to Article 84.

19 But we also have Article 84 bis.

20 "After the opening statements by the parties or pursuant to

21 Article 84, the Defence decides to make its opening statement after that

22 of the Prosecution, the accused can make a deposition if he so wishes and

23 the Trial Chamber so decides, make a statement under the control of the

24 Trial Chamber. The accused shall not be compelled to make a solemn

25 declaration and shall not be examined about the content of the statement.

Page 10246

1 The Trial Chamber shall decide on the probative value, if any, of the

2 statement."

3 The Rules of Procedure and Evidence clearly state that after an

4 opening statement, an accused, if he so wishes, may take the floor and

5 make a statement which doesn't give rise to any questions or to any

6 discussion. This is something I wish to bring to your attention. You

7 can think about it until tomorrow, unless we move on to the next stage in

8 these proceedings and unless you wish to talk about tomorrow's witness

9 already.

10 MR. BOURGON: [Interpretation] Thank you, Your Honour. The

11 Defence has already taken a stance on this matter. When the Prosecution

12 made its opening statement, we at that time opted for the following,

13 after having discussed it with General Hadzihasanovic, that he would not

14 make a statement. This time, we have also discussed this with General

15 Hadzihasanovic, and he will not make a statement.

16 However, the question of the testimony of the accused is

17 something which remains an open question. As I mentioned earlier on,

18 this is something which we shall decide upon as the case unfolds. Thank

19 you, Your Honour.

20 JUDGE ANTONETTI: [Interpretation] Thank you, Mr. Bourgon.

21 Rule 84 bis does not apply, therefore, as you have stipulated that you do

22 not wish to make use of it. I shall, therefore, give the floor to your

23 colleague, Mrs. Edina Residovic.

24 MS. RESIDOVIC: [Interpretation] Mr. President, as we have already

25 informed the Trial Chamber and our learned friends from the Prosecution,

Page 10247

1 this week we are going to call three witnesses. The first one is Zijad

2 Caber. The second one is Remzija Siljak, and the third witness is Hamed

3 Mesanovic. We have also indicated in our submissions what circumstances

4 will the witnesses talk about.

5 Our first witness is present here today. However, Mr. President,

6 I would kindly ask the Trial Chamber, given the fact that it is very late

7 in the day and that we would like the witness to start and finish his

8 testimony in one day, we would like to ask the Trial Chamber to defer the

9 testimony of this witness until tomorrow. And it is not just the time,

10 but also the fact that we would like this witness, who was the commander

11 of the municipal staff of Travnik and later on of one of the brigades of

12 the 3rd Corps -- we would need a military map in the courtroom when the

13 witness testifies, and we will be able to have that tomorrow.

14 There is yet another reason. You know that from the very

15 beginning, both parties in the procedure and the Trial Chamber have been

16 faced with the problem of translation. Despite all the efforts on the

17 part of the Defence, we have received the translations only yesterday

18 afternoon, and we sent those documents to the Prosecution earlier today.

19 The OTP have informed us that due to the number of documents, that they

20 will object to the documents being shown to the witness before tomorrow.

21 For all these three reasons, we would kindly ask the Trial Chamber to

22 defer the testimony of this witness until tomorrow at quarter past 2.00.

23 Thank you very much.

24 JUDGE ANTONETTI: [Interpretation] Thank you very much. At this

25 stage, the Chamber will reach the decision tomorrow on the certification,

Page 10248

1 and we are going to have first the oral decision, and then the written

2 decision which will confirm our oral decision. We are going to resume at

3 quarter past 2.00 tomorrow, unless the Prosecution wants to say something

4 on any of the issues, outstanding issues at the moment? Mr. Mundis, you

5 have the floor.

6 MR. MUNDIS: Thank you, Mr. President. The only issue, and it's

7 one that I believe is in the process of being resolved, relates to our

8 earlier request that the Defence, in addition to providing a list of

9 witnesses, indicates which specific exhibits they plan on tendering

10 through that witness. My discussion at the last break with Mr. Bourgon,

11 my learned colleague, indicates that they in fact will do so. We would

12 certainly appreciate that with respect to the remaining witnesses for

13 this week, as well as when they file their list for the following two

14 weeks so that we be given notice and time to prepare with respect to

15 which documents go with which witness. But it's my understanding that

16 they will be taking care of that. I simply wanted to place that on the

17 record. Thank you, Mr. President. We have nothing further for today.

18 JUDGE ANTONETTI: [Interpretation] Very well then. I am turning

19 towards the Defence to see whether when you start your case, will you

20 then be able to provide the Chamber with a file with all the documents,

21 or are we going to have look for the documents based on their numbers?

22 Can you give us an explanation.

23 MS. RESIDOVIC: [Interpretation] Mr. President, in order to

24 facilitate the work of the Trial Chamber, and also to make the witnesses'

25 life easier, we are going to try and make an effort to present our

Page 10249

1 documents in the way we did in the past. I have already prepared

2 documents for the witness who is supposed to testify tomorrow, and we

3 will provide the Trial Chamber and our learned friends with all these

4 documents tomorrow. It is not our problem. Our problem does not lie in

5 the fact that we do not want to inform the OTP of all the documents that

6 we are preparing for a witness. Our problem lies in the fact that we

7 cannot send the documents that have not been translated. This is why we

8 have to wait until the very last moment to tell you what number -- what

9 documents we can give you, because about 50 per cent of the documents

10 from our list have not been translated yet. However, we will do our

11 utmost to facilitate the work in this courtroom by giving the documents

12 to the Trial Chamber and to our learned friends in time.

13 JUDGE ANTONETTI: [Interpretation] Thank you very much for this

14 explanation. This is going to be very useful for the Judges.

15 Can we then draw the conclusion that when the witnesses come, we will

16 have a file or a binder every time to accompany the testimony of such

17 witness?

18 MS. RESIDOVIC: [Interpretation] For the witnesses who will be

19 presented with documents, the Trial Chamber is going to be provided by

20 binder, although these documents have already been accompanied by our

21 list. However, we are going to have a binder of all the documents that

22 will actually be presented to the witness. In our understanding of this

23 fact I believe is correct [as interpreted]. Some of the witnesses will

24 be presented with documents which have already been tendered into

25 evidence either as Prosecution evidence or Defence evidence. We are

Page 10250

1 going to use these documents, and we are going to place them in our

2 binders. However, we believe that we do not have the obligation to

3 indicate those documents on the list of documents that will be presented

4 to the witness because those are the pieces of evidence that are already

5 at the disposal of both the Prosecution and the Defence. Thank you very

6 much.

7 JUDGE ANTONETTI: [Interpretation] I thank you, again, for this

8 clarification. The Judges have understood that when you present us with

9 a binder, there will be two types of documents, documents that have

10 already been admitted into evidence either entered by the Prosecution or

11 yourself, and new documents. It will be very useful at this moment to

12 make a distinction in the binder as to which type of documents are we

13 talking about, whether it is a Prosecution document, a Defence document,

14 or a new document that is being presented.

15 Since we have addressed all the issues, I would like to invite

16 you to come back tomorrow at quarter past 2.00. Thank you very much.

17 --- Whereupon the hearing adjourned at 6.37 p.m.,

18 to be reconvened on Tuesday, the 19th day

19 of October, 2003, at 2.15 p.m.