1 Friday, 15 July 2005

2 [Open session]

3 --- Upon commencing at 9.04 a.m.

4 [The accused entered court]

5 JUDGE ANTONETTI: [Interpretation] The hearing is open. Could you

6 call the case, please.

7 THE REGISTRAR: [Interpretation] It's IT-01-47-T against General

8 Hadzihasanovic and Brigadier Amir Kubura.

9 JUDGE ANTONETTI: [Interpretation] Could we have the appearances

10 for the Prosecution, please.

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

12 Honours, counsel, and everyone in and around the courtroom. For the

13 Prosecution, Tecla Henry-Benjamin, Matthias Neuner, Daryl Mundis, and our

14 case manager Andres Vatter.

15 JUDGE ANTONETTI: [Interpretation] I'm going to ask for the

16 appearances for the Defence as well.

17 MS. RESIDOVIC: [Interpretation] Good morning, Your Honour; good

18 morning, Mr. President. For General Hadzihasanovic, Edina Residovic,

19 chief counsel; Mr. Bourgon, co-counsel; and we've got a legal assistant

20 and our case manager here with us as well. Thank you.

21 MR. IBRISIMOVIC: [Interpretation] Thank you, Your Honours. For

22 the Defence of Mr. Kubura, Rodney Dixon, Fahrudin Ibrisimovic, and our

23 legal assistant Nermin Mulalic.

24 JUDGE ANTONETTI: [Interpretation] Thank you very much. On this

25 219th day of the trial, I would like to welcome everybody present; the

1 Prosecution, the Defence, and General Hadzihasanovic and General Kubura.

2 I would also like to welcome all the other staff assisting us in our task

3 and who have been assisting us in the course of the entire trial, such as

4 the registrar, the legal officers, and the interpreters and the security

5 staff.

6 As to the time at our disposal, following our considerations we

7 have seen that the Defence is left with 49 minutes. Since the Defence had

8 six hours and now the Defence can also -- the Prosecution used six hours,

9 and now the Defence had the right to six hours as well and they're left

10 with 49 minutes. It is nine minutes -- seven minutes past nine, so you

11 have until 9.56, almost 10.00, in order to conclude with your closing

12 arguments.

13 So now I'd like to give the floor to the Defence.

14 MR. BOURGON: [Interpretation] Good morning, Mr. President; good

15 morning, Your Honours.

16 Mr. President, this is almost the end of a very long trial which

17 went on, as you've already mentioned, for 219 days. I still have several

18 things left to tell you, but for once - and this is a promise now - I'm

19 going to make an effort and keep it brief and not use up the entire 49

20 minutes that you have been so kind as to allocate to us.

21 In the course of the remaining few minutes, Mr. President, I'm

22 first of all going to deal very swiftly with three preliminary issues

23 before I move on to talk about the theory which has been proposed here in

24 the course of this trial, and then in the end I'm going to briefly refer

25 to all the measures that had been implemented by General Hadzihasanovic in

1 1993 in order to live up to his responsibilities as the commander of the

2 3rd Corps as well as to live up to his legal obligations. Afterwards, my

3 colleague will take the floor and give you a brief conclusion and we will

4 not overrun the time that has been allocated to us.

5 First of all, my first preliminary comment: Yesterday, my

6 colleague referred to our arguments as to the detention centres. It goes

7 without saying that in as far as the events at Hotel Sretno are concerned

8 as well as the events at Orasac, in both of these cases our position is

9 the one that we have outlined in our closing brief, that is to say that

10 General Hadzihasanovic never had any knowledge of those events.

11 The second preliminary topic, Mr. President, has to do with the

12 witness statement by Hajrudin Hubo. I had forgotten to mention it

13 yesterday. The Prosecution argued against the credibility of that witness

14 on the basis of a document that had been used in order to jog his memory.

15 More specifically, the exhibit P950. Technically speaking, Mr. President,

16 this exhibit, P950, is a document the use of which is simply restricted to

17 jogging a witness's memory. As a consequence, the content of that

18 document can't be considered as a piece of evidence, so that settles the

19 matter. However, Mr. President, you know us and we are not in the habit

20 of hiding behind technicalities and we always prefer to deal with the

21 topics openly, and on that occasion the witness had explained that that

22 was a document drawn up in 1995 on the basis of the information which was

23 gathered in 1995 and that the contents of that document don't reflect the

24 facts of the matter at all. In other words, there were no foreign El

25 Mujahid members or there were no members in the El Mujahid unit who were

1 also members of the Bosnian armed forces in 1993, and our explanation, Mr.

2 President, is that the person who provided that information to this

3 witness actually made sure that certain members of El Mujahid could obtain

4 Bosnian nationality according to a legal decree from 1993, and here I'm

5 referring to DH994 as well as the report of the constitutional expert

6 Trnka in paragraph 54.

7 That document, Mr. President, establishes through the witness

8 Hajrudin Hubo in 1995 on the basis of the information that he had not

9 actually checked as to the truthfulness of that information, and so this

10 does not actually reflect the actual situation on the ground in 1993.

11 As has already been done on a number of other occasions having

12 argued against the credibility of this witness, the Prosecution actually

13 then based their assumptions on the statement of that very witness. So to

14 say the least this is rather surprising.

15 The other preliminary topic, the official document drawn up by the

16 Economic and Social Council of the UN. By way of example, one of these

17 documents is the exhibit P156 that I had forgotten to mention in the

18 beginning of my statement on Wednesday. This document, P156,

19 Mr. President, makes reference to the fact that the government forces are

20 supposed to have participated in the events at Miletici. What we must

21 keep in mind here, Mr. President, is that this document could not exist

22 without an added reference to government forces, because in the absence of

23 such a reference there would be no violation of human rights with regard

24 to the applicable international law, and in that case the Special

25 Rapporteur of the Human Rights Commission would not actually have any

1 competence there. So we must deal with this document on the basis of the

2 -- not just its content but on the basis of the comments which have led

3 to the drawing up of this document in the first place.

4 In this case, the witness, through a witness statement which was

5 accepted on the Article 92 bis, that is to say it is an internal matter,

6 Rule 92 bis, so they explained the circumstances which had led to the

7 drawing up of this document P156.

8 Last but not least, this is an argument put forward by the

9 Prosecution, that is to say the mention of an event such as Miletici in an

10 international document should imply that the people on the ground knew

11 this. Well, this is an argument which was put forward by the Prosecution,

12 and they have been doing it since the very start, since the very -- since

13 the indictment, and they kept coming back to this throughout the trial.

14 Allow me to put forward another argument, Mr. President. The

15 citizens of Bosnia and Herzegovina in a situation of conflict which was

16 raging in their country, well they probably had other things to do rather

17 than read the reports from the Economic and Social Council of the UN.

18 This argument applies to all the UN documents, both military and civilian

19 texts. It is quite certain that as a legal -- as legal experts we view

20 this document as extremely important, and of course it may well happen

21 that we find out about them as soon as they're approved, but for the

22 citizens of Bosnia and Herzegovina, those who were in Bosnia and

23 Herzegovina in 1993, a report from an Economic and Social Council of the

24 UN, it is certainly not something which is going to draw their attention,

25 to attract their attention as their top priority.

1 And this comes me -- this brings me to the theory I wanted to

2 refer to, the theory put forward by the Prosecution, and I think it is

3 wrong. There are several such theories, but I'm going to deal with the

4 most important ones.

5 The first one, the Prosecution said that the 3rd Corps had to deal

6 with the matter of the Mujahedin on the basis of their obligation to

7 protect the civilian population. We believe, Mr. President, that this is

8 wrong. The responsibility of the 3rd Corps in as far as the protection of

9 the civilians is concerned had to be responsibility recognised on the

10 basis of the domestic law in effect at the time as well as the

11 humanitarian law, the international humanitarian law. In order for this

12 theory to apply in both cases, we can't really deduce such a

13 responsibility of the 3rd Corps with regard to the civilian population.

14 An instrument which could perhaps guide the Trial Chamber there is

15 the first Additional Protocol to the Geneva Convention even though it does

16 not really apply in this case, but there you can read what are the

17 obligations of a commander in as far as the civilian population is

18 concerned, either at the time when the attacks are launched or when he is

19 trying to protect his forces from those attacks.

20 The second theory put forward by the Prosecution, the Mujahedin

21 could not exist as a separate entity in the midst of a conflict such as

22 the one that was raging in Central Bosnia at the time. We believe,

23 Mr. President, that that theory is wrong. Evidence has indicated that not

24 only was it possible but on top of that there were several such groups

25 operating in Central Bosnia and existing quite independently from the

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1 armed forces.

2 Let me mention another theory put forward by the Prosecution.

3 They claim that General Hadzihasanovic was responsible for the behaviour

4 of all military forces within his area of responsibility. The Defence

5 replies that here, once again, this is a false theory, a wrong theory.

6 The Defence has been able to show that the responsibilities of General

7 Hadzihasanovic could only apply if the elements or the essential

8 conditions of Article 7(3) of the Statute had been met.

9 The fourth theory, the existence or the possibility of an

10 effective horizontal control over the Mujahedin. We believe,

11 Mr. President, that this theory is completely wrong. This has been shown

12 by the Defence as well as our military expert, General Karavelic, who

13 explained very well that -- that an effective horizontal control could not

14 exist.

15 The fifth theory, the control exercised over the civilian

16 authorities in times of war, and this once again with regard to the 3rd

17 Corps is wrong. This has been demonstrated beyond any reasonable doubt by

18 the constitutional expert, both in his report and in the course of his

19 testimony.

20 The sixth theory, the control exercised over deserters and the

21 obligation to going to look for them. There again this is a wrong theory.

22 It has been demonstrated that penal measures could be imposed by the

23 District Military Court with regard to deserters. But it has also been

24 demonstrated that General Hadzihasanovic could not be held accountable for

25 the actions of any such person over whom he no longer had any effective

1 control.

2 Last but not least, the Prosecution put forward the theory that

3 General Hadzihasanovic would have been obliged to attack the Mujahedin in

4 order to sort this out once and for all. Our reply is that this is

5 completely wrong. It has been demonstrated quite clearly that the

6 decision to attack the Mujahedin was not a legal obligation but an

7 operational consideration. On top of that, the need to take on the

8 Mujahedin would make it simply impossible for anyone to think that either

9 General Hadzihasanovic or anyone else in the 3rd Corps could indeed have

10 any control over these forces.

11 And this brings me to the last part of my closing argument,

12 Mr. President, and that is the measures implemented by General

13 Hadzihasanovic. The first statement: Article 7(3) of the Statute does

14 not require a commander to implement all necessary measures but the

15 necessary and reasonable measures. There is an important distinction to

16 be made there.

17 The second statement: Yesterday, I referred to statements made by

18 international, local, military, and civilian witnesses with regard to

19 General Hadzihasanovic. We referred to his character, his motives, his

20 skills, and his personality, his character. It follows, Mr. President,

21 that the character of General Hadzihasanovic as a whole seems to be

22 totally incompatible with the theories put forward by the Prosecution,

23 that is to say that such a person would have neglected to implement

24 certain measures in certain cases. The Prosecution has not even tried to

25 show why such a commander would fail to implement measures in certain

1 cases.

2 The third statement: In his report, General Karavelic has given

3 us a detailed account of responsibilities, obligations, duties, and tasks

4 to be carried out by a perfect and ideal commander. In our closing brief,

5 we gave you a list of everything that General Hadzihasanovic has done and

6 accomplished in order to live up to his responsibilities as the commander

7 of the 3rd Corps. We respectfully submit to you, Mr. President, that

8 everything that has been accomplished by General Hadzihasanovic in this

9 area was simply incompatible with the theory put forward by the

10 Prosecution, that is to say the fact that this commander would have failed

11 to implement reasonable and necessary measures had he been in a position

12 to do so.

13 Once again, the Prosecution has not even tried to explain why such

14 a commander would have failed to implement measures if he had been in a

15 position to do so.

16 The fourth statement: Yesterday, I referred to the type of

17 measures that one can expect from a commander if he knows or has reason to

18 know that a subordinate person was about to commit a crime, or if he -- if

19 he knew about such a crime having been perpetrated.

20 According to the case law of the International Tribunal, but also

21 according to the case law with regard to other war crimes trials after

22 World War II, in our final brief we have explained all the measures

23 implemented by General Hadzihasanovic in line with Article 7(3) of the

24 Statute. We've even added a description of those measures in the annex.

25 There are quite a few of those measures of different kinds, and they touch

1 upon all areas above and beyond of what can be reasonably expected from a

2 general according to the case law.

3 So we respectfully submit, Mr. President, that General

4 Hadzihasanovic went above and beyond the call of duty and above and beyond

5 his obligation and that all this is totally incompatible with the theory

6 put forward by the Prosecution, that is to say that he is supposed to have

7 done everything except in cases of certain violations. The Prosecution

8 has not even tried to show us why -- or not even tried to put forward the

9 reason why such a commander who has implemented so many measures would

10 have failed to live up to his obligations under certain circumstances.

11 It is quite clear, if we look at the evidence, that General

12 Hadzihasanovic in this field, to use a less strict form of words, was more

13 Catholic than the Pope, and for a Muslim it means a great deal.

14 The fifth theory, on a more serious note: We had suggested to the

15 Chamber in what way these measures could be appreciated, and it has to do,

16 for example, with the Yamashita case. It is very weird that the

17 Prosecution has not suggested any such standard against which to measure

18 the measures implemented by the general. Perhaps it's only to be expected

19 because the Prosecution, in trying to avoid from every point of view the

20 use of any context, could have been expected to do so.

21 So in the first place, we need to see whether the commander did

22 act not quite in line with the common practices in terms of commanding.

23 And secondly, "[In English] [Previous translation continues] ... supervise

24 that constitutes criminal negligence, plus there must be personal neglect

25 amounting to a wanton, immoral disregard for the actions of his

1 subordinates amounting to acquiescence."

2 [Interpretation] So we respectfully suggest to this Trial Chamber

3 that General Hadzihasanovic's behaviour does not even come close to this

4 sort of behaviour, and on the basis of his exemplary conduct we can see

5 that he acted quite differently in 1993.

6 And this brings me to my last statement, Mr. President, which goes

7 to support everything I have said so far with regard to measures. The

8 Prosecution has not actually provided us with any burden of proof as to

9 this supposed neglect or failure to implement measures. I would first of

10 all like to thank my colleague from the Prosecution, who for longer than

11 35 minutes explained to us what measures had been implemented by General

12 Hadzihasanovic. For example, in January 1993. I would also like to thank

13 my colleague who on behalf of the Prosecution has tried to minimise the

14 number of measures implemented by General Hadzihasanovic and his military

15 police battalion.

16 In the first case, the arguments put forward by my colleague give

17 us an overview of what was done at all levels of the armed forces in order

18 to combat crime.

19 In the second case, let me respectfully submit to you that one

20 can't really take seriously this argument according to which only 40 per

21 cent of 800 measures, 800 and more, actually concerned the army or the

22 members of the armed forces. The question that imposes itself is that the

23 Prosecution has not been in a position to prove their case. The 800

24 measures to which they refer in their document are just an overview of

25 things that had been done. The Prosecution was trying to contradict the

1 policy put forward by Mr. Hadzihasanovic when it came to crime. That is

2 to say, what we heard from witnesses was actually zero tolerance. And

3 last -- last year the mission of the -- the Hackshow mission was a failure

4 from every point of view. We can't say that this mission was a success.

5 Quite the contrary, this mission had the totally different effect.

6 This mission made it possible to prove beyond any reasonable doubt

7 that it is not possible to claim that no measures were taken in relation

8 to all of the charges levelled against General Hadzihasanovic. When we

9 examine this more closely, we can see that there are numerous documents in

10 the archives -- numerous archives where we can find documents that concern

11 the counts in the indictment.

12 The evidence shows, Mr. President, that 3rd Corps units also filed

13 complaints or criminal reports with District Military Courts. We haven't

14 seen these documents, Mr. President.

15 If we take Bugojno as an example, we have no documents from the

16 courts that functioned in that town. This is in evidence. But we don't

17 know what was contained in these archives. And similarly, it's too late

18 to provide a new interpretation of Article 6 on the decree on disciplinary

19 measures, although an expert could have addressed this issue if the

20 Prosecution had expressed any doubts.

21 I'd like to remind you that Article 6 states that if the conduct

22 is such that it should be the subject of disciplinary measures and

23 punishment, both should be applied. One does not exclude the other. Such

24 disciplinary measures can be taken in a time of war, and one can stop

25 there or, at an appropriate time, the entire matter could be referred to a

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1 District Military Court.

2 In our opinion, Mr. President, one cannot claim that a prison

3 sentence of 60 days is not sufficient for the acts referred to in the

4 indictment. Why? Because we are not familiar with the details of the

5 complaints nor are we familiar with the identity of the alleged

6 perpetrators.

7 Mr. President, as an example, I'd like to refer to DH1200. This

8 document is a request for an investigation to be launched. I think it's

9 important to mention the details of the request, and I quote in English:

10 "There are reasonable grounds to believe that [In English] 1993 --"

11 [Interpretation] an important date -- "[In English] returning from the

12 village of Bjelo Buce to Travnik, in order to acquire unlawful gain, he

13 misappropriated two pairs of children's shoes, two children's skirts and

14 one child's fur-lined coat from an abandoned house owned by a local Croat.

15 These items were found and seized by members of the MUP, Travnik SJB,

16 public security station, at the police checkpoint near the Borac factory

17 in Travnik, and hereby committed the crime of aggravated theft under

18 Article 148 ... of the Criminal Code of the Republic of

19 Bosnia-Herzegovina."

20 [Interpretation] Mr. President, this is the kind of army you have

21 to deal with when rendering a decision in this case. The poor soldier who

22 came back from the combat area and passed through an abandoned house and

23 who had children who had nothing to wear, nothing to eat. For his

24 children he stole a fur-lined coat, a skirt, some shoes, and he's accused

25 of a crime before the District Military Court.

1 If people took care to file criminal reports with the military

2 prosecutor in the district of such events, what sort of action do you

3 think he took in other cases? More than a thousand soldiers were

4 prosecuted or criminal reports were filed to prevent these soldiers from

5 committing crimes or to arrest soldiers who had committed crimes.

6 In our trial brief we have said on a number of occasions that the

7 Prosecution has used documents to say that the general was aware of the

8 situation in the field, whereas these documents show beyond any reasonable

9 doubt that as soon as General Hadzihasanovic had a shred of doubt that his

10 troops had been misbehaving, he immediately issued the appropriate

11 orders. And we have explained to you that given the level at which he

12 operated, he could not take his car and go to Travnik and go there to

13 arrest the soldiers with the skirts and the shoes. This is not the role

14 of a corps commander. The role of a corps commander with over 30.000 men

15 under him is to take measures as soon as he hears about such cases, and

16 this is what General Hadzihasanovic did throughout the year 1993. He took

17 such measures, and the Prosecution has failed to prove that such measures

18 were not taken.

19 Let me go back to my example. If I was a commander and I found a

20 soldier of mine who had stolen two pairs of shoes, in the Canadian army,

21 at least, I can tell you that there wouldn't be a criminal report. He

22 would be placed in detention, but this would be a disciplinary measure.

23 When we mention Article 6 and when one says that it's possible for

24 a unit commander to take disciplinary measures and to place people in

25 detention and this is what was done, well, there are various types of

1 events, various types of crimes or offences for which measures were taken,

2 including up to 60-day detention period.

3 We have explained all of this in detail in our final trial brief,

4 and for this reason the lack of evidence to show that measures were taken

5 means that General Hadzihasanovic should be acquitted on all counts. It's

6 not sufficient to say that the parties have visited the archives. The

7 Prosecution had the burden of proof and they have failed to prove their

8 case.

9 I could mention all the archives that haven't even been visited,

10 the local police stations, the security centres, the Cantonal Courts, the

11 Municipal Courts. All of these places could have yielded the necessary

12 evidence. The difficulty is that we haven't understood the particular

13 nature of this case. That does not concern crimes committed pursuant to

14 7(1). One is accused of not having taken the appropriate measures. This

15 has to be proved. We have to prove that no such measures were taken, and,

16 Mr. President, this is something that has not been done and this is

17 something that has not been proved. The contrary has been proven by the

18 Defence.

19 I could go on for a very long time, but I'll satisfy myself by

20 saying that proving something beyond any doubt is to prove something

21 beyond any reasonable doubt. Penal law, criminal law is simple. It

22 requires rigor and there has been no demonstration of rigor in this case.

23 Would it be possible for General Hadzihasanovic to be acquitted of

24 all the charges in this case? This must be possible, Mr. President, and

25 this is the reason for which we have trials. We submit that General

1 Hadzihasanovic should not have been accused.

2 I invite you to examine objectively the charges levelled against

3 Plavsic, Kordic, Brdjanin, Stakic, Krstic and others. If we just have an

4 objective examination of the sort of charges levelled at them, at the

5 involvement of these individuals, naturally these charges are just

6 allegations until it has been proven, but we are talking about the

7 involvement of high-level individuals, high-level individuals involved in

8 numerous murders. And this has nothing to do with this case. There were

9 numerous victims in that case.

10 Why has General Hadzihasanovic been accused? It's because of the

11 Mujahedin, that's what I said. That a trial that goes on for 219 days has

12 not -- has an objective establishing of the existence of al Qaeda. The

13 Prosecutor could have called someone to testify about al Qaeda but they

14 didn't do this because they know that an expert would have said that this

15 is the sort of person who never places himself under the control of

16 anyone. These sort of people act independently, and this is what they did

17 in 1993.

18 Was General Hadzihasanovic accused because the Prosecutor wants a

19 balance of charges in the course of these conflicts? Is he trying to

20 respond to the criticism that not only the Serbs and the Croats committed

21 crimes? Is he trying to respond to the charge that Muslims also committed

22 crimes? We have to mention this because my -- because when this trial was

23 opened, the first thing my colleague said was not that he was here to

24 establish the responsibility of a general. He said, "We are here to show

25 you the other side of the coin, to show that crimes were committed by the

1 other side too." This is not the objective of this trial. The objective

2 of this trial is not to show that Muslims committed crimes. Everyone

3 knows that. All the observers in the field know that all of the parties

4 to the conflict committed crimes. But everyone also knows that crimes

5 were not committed at the same level, and they know that the individuals

6 responsible were not at the same level. Everyone knows that crimes have

7 to be attacked if they are established, but one should not proceed in a

8 random manner. One should not select a commander, choose him to be a

9 symbol, and say, "Look, the Muslims are just as responsible as the Serbs

10 and the Croats." That is not justice.

11 Mr. President, we believe that the Chamber will not be influenced

12 by such indirect pressure, but these things have to be stated openly.

13 This Tribunal was established to re-establish peace and security, for the

14 sake of reconciliation between the peoples, and false reconciliation based

15 on alleged crimes that doesn't reflect the situation in the field cannot

16 result in reconciliation.

17 Having examined all the evidence, we are certain that the only

18 conclusion that you'll be able to draw is that General Hadzihasanovic

19 should be acquitted on all of the counts against him.

20 And to conclude, Mr. President, there is a document I would like

21 to file, a document that was provided to us by the commander of the UN

22 Detention Unit. It's a document that you are familiar with because,

23 mistakenly, our request to the Registrar to obtain a report on General

24 Hadzihasanovic's conduct in the detention unit, by mistake, this report

25 was sent to the Chamber. We wrote a letter for the Registrar and we asked

1 for a report from the detention unit commander with regard to the accused

2 and this letter was provided to the Chamber by mistake. The contents of

3 the letter are excellent, but we expected a lot more.

4 I spoke to the detention unit commander, and he told me that he

5 would write a report on the conduct of General Hadzihasanovic. It's a

6 good report. We'll take this opportunity to file it. There are three

7 paragraphs here. And although the three paragraphs are not what we

8 expected, nevertheless they do prove that the behaviour of

9 Mr. Hadzihasanovic was exceptional throughout his period of detention, and

10 it tallies with everything that we have said.

11 And finally, Mr. President, I would like to apologise for the

12 vigour with which I have been engaged in this case on occasion. It's the

13 most difficult thing for a lawyer, to represent someone who is innocent.

14 The pressure that a lawyer feels when representing someone who is

15 innocent, Mr. President, is something we have had to live with for several

16 months now.

17 Thank you, Mr. President.

18 MS. RESIDOVIC: [Interpretation] Mr. President, to conclude our

19 submissions today, our closing arguments on the 219th day of the trial of

20 General Enver Hadzihasanovic, an ABiH commander, I would like to say that

21 the last words uttered by my colleague are words that have been present

22 with us throughout this trial. We have done our best to demonstrate to

23 you by using evidence, by using written evidence, by using witnesses we

24 have called, for you to arrive at the same conclusion, because all the

25 evidence that has been presented to this Trial Chamber shows only one

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1 thing: That you have before you an honest, professional soldier, a

2 commander who acted in impossible conditions and did the impossible in

3 order to create an army, to discipline an army, to create a feeling of

4 respect for the law among his soldiers and to punish all those who failed

5 to respect the law.

6 As my colleague has said, and this is what we have already

7 mentioned in our trial brief, unfortunately the Prosecutor is advancing

8 theories which take us back to the beginning of the trial. It is not only

9 that he is erroneously referring to certain locations, the Prosecutor is

10 going back to documents that the Prosecutor wants to use to show that

11 General Enver Hadzihasanovic was responsible for everything that happened

12 in the area where he acted as commander.

13 You are again shown P363, the rules on the law of war of the

14 Socialist Republic of Yugoslavia. Although their expert, their military

15 expert Reinhardt responded to the following question: "What would you say

16 if we said that those rules of the war law in the SFRY were not adopted in

17 Bosnia?" General Reinhardt responded: "Then my assumption is erroneous.

18 It was my assumption that those rules and those part of the rules were the

19 applicable law in the army of Bosnia-Herzegovina."

20 In response to the following question: "Did you come across any

21 laws or rules that were in force in Bosnia-Herzegovina according to which

22 a commander is responsible for everything that take place in his area of

23 responsibility?" And the general, General Reinhardt, responded and said:

24 "That was the main question. I didn't find anything else. That was a key

25 document. So that is what is at stake. I really made a mistake. I have

1 to change my position because it was erroneous at the outset." It's as if

2 the Prosecution did not listen to the evidence in this case but stood by

3 his position.

4 Your Honours, we don't ask you to believe us, but in this case in

5 which you have allowed us to call numerous witnesses, in which you have

6 allowed us to cross-examine the Prosecution witnesses, we ask you to

7 examine the evidence that has been presented, and having done so,

8 establish what the case is. The Defence claims that you have before you a

9 reasonable and responsible commander who always did not only what he was

10 supposed to do in accordance with the law, but he went beyond that, and

11 for this reason we are asking you to acquit General Hadzihasanovic on all

12 counts in the indictment.

13 As his Defence lawyer and for the entire Defence team, it has been

14 very difficult to defend General Hadzihasanovic, although we have had the

15 honour to do so before this Chamber. Thank you.

16 JUDGE ANTONETTI: [Interpretation] I will now give the floor to the

17 Prosecution that agrees with the Defence if they want to add something

18 that concerns the location. It's not really a response. It's an

19 additional piece of information that the Prosecution would like to

20 provide.

21 Mr. Mundis.

22 MR. MUNDIS: Thank you, Mr. President. This is a brief response

23 to some arguments, not really legal response but in response to something

24 raised by the Hadzihasanovic Defence and which the Kubura Defence spoke

25 with us about earlier.

1 Your Honours will recall that in our final trial brief and in our

2 oral submissions we made reference to three documents which I will mention

3 in a moment relating to Orasac. These documents and the discussion of

4 them are described in paragraphs 134 and 258 of the Prosecution's final

5 trial brief. The documents concerned are Exhibits P500, P501, and P611.

6 These documents -- excuse me. These documents are specifically referred

7 to in footnotes 414, 418, 839, and 879.

8 Upon further consideration of the context contained within those

9 documents and in light of the maps that were shown to the Trial Chamber at

10 the beginning of the Hadzihasanovic oral arguments, the Prosecution is no

11 longer arguing that the Orasac referred to in these three exhibits as

12 described in the paragraphs and footnotes that I have just mentioned is

13 the same Orasac where the alleged detention and beheading of Mr. Popovic

14 occurred.

15 To be absolutely clear, Your Honours, we are no longer claiming

16 that the Orasac mentioned in these documents is the same Orasac that is

17 described in the indictment. All other aspects with respect to the events

18 in Orasac, both as described in our final trial brief and in our oral

19 submissions, remain the same.

20 Thank you.

21 JUDGE ANTONETTI: [Interpretation] Very well. We have taken note

22 of what you have just said.

23 It's five to ten. We have another 35 minutes before the break.

24 Would Brigadier Kubura's Defence like to start now or would you prefer to

25 have the break? As you wish.

1 MR. DIXON: Thank you, Your Honours. I think, with Your Honour's

2 leave, we will commence now so we can get under way as soon as possible

3 and then take our break at 10.30 and continue thereafter.

4 Your Honours, on behalf of Mr. Kubura, we will be short in closing

5 his case as there is, in our submission, not very much at all to answer

6 despite the fact that these proceedings have commenced some four years ago

7 for Mr. Kubura, in 2001, a long time in anybody's life.

8 Having now reviewed the Prosecution's brief, and most importantly

9 having heard their oral submissions at the beginning of this week, there

10 is, in our view, very little that requires a reply from Mr. Kubura,

11 especially in relation to the killings in Miletici and Maline, where the

12 7th Brigade was virtually not mentioned at all in the Prosecution's

13 closing oral submissions.

14 Indeed, Your Honours, the Prosecution have not squarely and with

15 clarity and confidence laid the blame for those killings at the doorstep

16 of Mr. Kubura. Considering what we have all heard, Your Honours, over the

17 past few days, in our submission it is to the Prosecution's credit that

18 they end their case on this note. They are not, in fact, seeking to

19 stretch the evidence a bridge too far. The Prosecution is in fact ending

20 at a point different to the one they might have set out to achieve when

21 they opened this case at the end of 2003.

22 The reality is that the Prosecution is not certain of its case

23 against Mr. Kubura for Miletici and Maline, and our primary submission is

24 that Your Honours cannot be certain either. He must be acquitted of these

25 killings.

1 Your Honours found a case to answer in respect of these killings

2 when we submitted our 98 bis motion, but as Your Honours indicated in your

3 decision, once we go beyond the end of the Prosecution case, the standard

4 of proof is then raised to one of beyond reasonable doubt. And even

5 though there might have been a case to answer, it does not mean that the

6 case has been proved to the requisite level of beyond reasonable doubt.

7 Your Honours will, of course, appreciate that beyond reasonable

8 doubt means certainty. It means Your Honours have to be sure before a

9 conviction can be entered. Where there is any doubt, an acquittal must

10 follow. This is the golden thread that runs through all of international

11 criminal law and indeed all of our domestic jurisdictions. It is based on

12 the cornerstone principle of the presumption of innocence. Guilt can only

13 be assigned to an individual where it is proved without any doubt that the

14 person committed those crimes.

15 The Prosecution have maintained their request to Your Honours,

16 albeit, in our submission, a weakened one, that Your Honours convict

17 Mr. Kubura for the killings. But there is no firmness, no lucidity in the

18 evidence and arguments that are presented by the Prosecution against

19 Mr. Kubura. There is no trusty structure, we say, for Your Honours to

20 hold onto.

21 To draw on a well-known image, the Prosecution's case is a bit

22 like a giant sponge which has been absorbing streams of water from all

23 directions, but it is now leaking and dripping at every corner.

24 The Prosecution has been trying to fill in the gaps to stop the

25 leaking by either downplaying to some extent Mr. Kubura's role, as I've

1 mentioned already, or by putting aside evidence that could be -- that

2 could be relevant, that is on the record, or by overlooking points that

3 are raised by the Defence, or by seeking to draw inferences and

4 conclusions in a circumstantial case that are quite simply unsustainable

5 and in some instances unfair to Mr. Kubura. We say in many critical areas

6 their case is riddled with what might be termed pyramiding of inferences,

7 which is drawing an inference upon another inference upon another

8 inference upon another inference, piling one on top of the other in a

9 drive to get a legal conclusion of guilt at any cost.

10 It goes without saying that the Prosecution of war crimes is a

11 very serious matter, the Prosecution having been mandated by the Security

12 Council of the international community to prosecute those most responsible

13 for the commission of serious - and I underline serious - violations of

14 international humanitarian law.

15 Accusations made in indictments cannot be taken lightly. These

16 are public documents for the entire international community.

17 So when, firstly, for example, the Prosecution alleges in the

18 indictment at paragraph 27 that in June 1993 there was a massive attack by

19 the Bosnian army during which 200 civilians were killed, we have to

20 consider very carefully whether that allegation has been made out. In our

21 submission, there is no evidence to prove that Mr. Kubura was involved in

22 a massive attack where 200 civilians were killed in a relatively short

23 period of time. And if this fact hasn't been proved, and comparatively

24 speaking the casualties are much, much lower during that time period, is

25 this not a factor that Your Honours can take into account as mitigation?

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1 The Prosecution have indicated that there is no mitigation in this

2 case. However, in the Blaskic appeal, the Appeals Chamber noted very

3 clearly that the circumstances of the conflict and the role of the accused

4 before, during, and after the conflict is a mitigating factor, bearing in

5 mind as well whether there was a discriminatory, clear discriminatory

6 basis for actions undertaken.

7 Secondly, Your Honours, there is the assertion made in the

8 Prosecution's written closing brief, and this is at page 4, and this

9 concerns the foreigners or Mujahedin. It's the first time that they raise

10 the issue. Paragraph 9, which goes over to page 4, and they say: "...

11 the mere presence and employment in combat of the Mujahedin during the war

12 in Bosnia and Herzegovina casts serious doubts on the sincerity of the

13 Bosnian army's stated goal of maintaining a secular and multi-ethnic

14 Bosnia where all nationalities could live peacefully."

15 Your Honour, I should make it clear that in our submission these

16 matters have very little to do with the charges in the indictment, which I

17 will come on to, but as a public document the indictment and the

18 allegations that are made by the Prosecution must be carefully

19 scrutinised.

20 In our submission, this kind of statement is far overstated. From

21 the very first case that was heard before the ICTY, the Tadic case, the

22 Prosecution has called evidence from experts like Dr. James Gow, and in

23 their submissions have emphasised that the perspective of the Bosnian

24 government and its armed forces was for a multi-ethnic solution to the

25 future of that country. That continued in the Kupreskic case, in the

1 Blaskic case, in the Kordic case. I recall the evidence of another

2 expert, Professor Robert Donia, relied on by the Prosecution in those

3 cases. And indeed, the very spirit of the Dayton agreement is driven by

4 the multi-ethnic principle.

5 Perhaps again, Your Honours, these background circumstances may be

6 ones which count as mitigating in this case.

7 Thirdly and most importantly in respect of the charges against

8 Mr. Kubura, the Prosecution have still not presented a clear case in

9 respect of Mr. Kubura as to how he effectively controlled the Mujahedin

10 who were involved in any of the crimes alleged in the indictment. The

11 Prosecution's brief is now littered with the phrase "Mujahedin were

12 incorporated within the 3rd Corps, including - including - the 7th

13 Brigade." Your Honours will recall how when we opened the case for

14 Mr. Kubura we noted four separate indictments that had preceded this case

15 and that had come out during this case, each with a different approach to

16 what was the relationship between the Mujahedin and the 7th Brigade as the

17 Prosecution puts it. We now have a different and to some extent a new

18 formulation, which is that the Mujahedin were included in units including

19 the 7th Brigade. It mirrors in many ways what is in the indictment

20 against Mr. Delic.

21 But the lingering questions remain. They still have not been

22 answered. Who exactly does the Prosecution say was included in the 7th

23 Brigade and when? And most importantly for this case, were they the

24 perpetrators? The Prosecution have not been able to, in their final

25 attempts here before Your Honours closing the case, answer any of those

1 questions to give Your Honours any certainty to proceed with.

2 Instead, what the Prosecution seeks is a guilty verdict on the

3 basis of the following assertions: They say, first of all, we accept

4 Mr. Kubura was not the de jure commander. He didn't have those powers.

5 But he was a de facto commander of the entire brigade.

6 They then go on to say that some foreigners, we can't say which

7 but some, were subordinated to the 7th Brigade. Not a horizontal

8 association or cooperation, they were actually subordinated; they were

9 within your brigade.

10 They then go on to allege that certain foreigners were involved in

11 committing killings in Miletici and Maline. They can't say which other

12 than they came from the Mehurici camp. They were foreigners from there.

13 They then start to try to link it all together by saying as a de

14 facto commander, in the case of Miletici for only less than two weeks, of

15 the 7th Brigade, you must have controlled the particular foreigners that

16 were in Mehurici that committed the crimes. And moreover, you must have

17 known about all of those offences while they were being committed or

18 afterwards. There's not a single sentence in their brief about knowledge,

19 what is the evidence that proves that Mr. Kubura knew about these

20 offences. It's merely an asserted fact.

21 And then drawing all that together, the Prosecution then set aside

22 all the evidence and the documents and the war diaries that show that the

23 7th Brigade was not present in those locations. That's simply not

24 addressed as another potential rational explanation for what occurred on

25 those days, and they say Your Honours must find him guilty of murder.

1 Those are the hoops, seven of them, that they ask Your Honours to

2 go through in order to convict. We say that no reasonable trier of fact

3 could ever convict on the basis of those assertions and the links that the

4 Prosecution seeks to make between them. There is no basis for a

5 conviction.

6 I want to here make a comment about measures which Mr. Mundis

7 spent some time on at the end of the Prosecution's oral submissions.

8 Your Honour will recall that General Reinhardt in his evidence

9 confirmed that the issue of measures only arises once you have established

10 that the perpetrators are indeed the subordinates of the commander and

11 that the commander knew or had reason to know what they were doing. Once

12 that is established, it then has to be considered, well, what did the

13 commander do? Was it enough, reasonable and necessary in the

14 circumstances?

15 Mr. Mundis is absolutely correct in highlighting the importance of

16 measures to this case.

17 In respect of Mr. Kubura, the only time that that issue may arise,

18 we say, is for the alleged crimes in Vares, which I will come to address

19 in due course. But for all of the other offences, he was either not the

20 commander, not in effective control of the perpetrators because they were

21 not his subordinates, or there's no evidence that he knew or had reason to

22 know about the offences. And it's for that reason that Your Honours will

23 be fully aware that the issue of measures has not been a part of

24 Mr. Kubura's Defence. You cannot take measures if people are not your

25 subordinates, if you don't know that crimes have been committed.

1 In Vares, yes, Mr. Kubura was present. Your Honours have heard

2 evidence of that. And in our submission, he did take measures appropriate

3 to what his subordinates were doing.

4 In highlighting measures or repression of crimes, Mr. Mundis was

5 also correct in emphasising the plight of victims in Central Bosnia. We

6 all agree that those responsible must be punished for the sake of justice,

7 for the sake of the grieving families of victims who remain behind. This

8 trial has provided some of them with an opportunity to come before Your

9 Honours and tell their stories, to make them public, and in at least some

10 way, perhaps a greater way for some of those persons, that in itself would

11 have contributed to the healing process and, more broadly, to

12 reconciliation on the basis that the suffering has not been forgotten.

13 All we ask is that in the context of a criminal trial the real

14 proven perpetrators, at whatever level they might be, are those held

15 responsible. We do the victims no service to blame the wrong persons, and

16 we do the delicate process of building a new unity no service to stretch

17 evidence, to build inference upon inference in an effort to find someone

18 responsible at any cost.

19 Your Honours, I will now move on to two charges that the

20 Prosecution have paid great attention to in their oral submissions. In

21 fact, those are the charges they have made most of the assertions about

22 the 7th Brigade, those being the Motel Sretno and Vares.

23 In reality, these are instances which lasted no more than one day

24 each. We wish to respond to the particular assertions that have been made

25 by the Prosecution in respect to each of those. I will not be repeating

1 what is in our written brief. Our aim is to try to, where the Prosecution

2 have explained their theory, explain whatever evidence they rely upon, to

3 respond directly to that for each of those counts. We will be referring

4 to our written brief and to some documents, but there is no need for Your

5 Honours to have those documents before you, and we will not have any

6 further computer aids.

7 Your Honours, perhaps before I start with the Motel Sretno, that

8 would be a good time to have our first break, and I will commence there

9 immediately afterwards.

10 Thank you, Your Honours.

11 JUDGE ANTONETTI: [Interpretation] It is 20 past ten. We can have

12 a technical break now, and we shall continue at around ten to eleven.

13 --- Recess taken at 10.21 a.m.

14 --- On resuming at 10.50 a.m.

15 JUDGE ANTONETTI: [Interpretation] We will now resume. Mr. Dixon,

16 you have the floor.

17 MR. DIXON: Thank you, Your Honours.

18 Motel Sretno. The Prosecution bases the case against Mr. Kubura

19 for the charges for Motel Sretno on him being present, they say, in Kakanj

20 on the 18th of May, 1993, and there are two pieces of evidence that they

21 rely upon to draw this conclusion. Firstly, there's P562, which is a

22 document from the 7th Brigade indicating that certain persons must go to

23 Dusina, and they connect that with document P563, which is one signed on

24 the 18th of May by the duty operations officer which states that the chief

25 of staff, together with others, is in the 3rd Battalion. That's the

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1 documentary evidence.

2 And secondly, they rely upon the statement of a victim who heard

3 the name Kubura being mentioned by an HVO commander at a meeting a day

4 later chaired by the French UNPROFOR officer.

5 This, Your Honours, is classic circumstantial case that the

6 Prosecution puts, using inferences to try to reach a particular

7 conclusion. It should be compared with the kind of circumstantial case

8 they seek to use for Miletici and Maline. In our submission, their

9 efforts cannot even be called a circumstantial case. It doesn't fall

10 within the realm of what one would call a classic attempt to prove a legal

11 conclusion through various inferences.

12 The assumption for Motel Sretno is that the document P563 reflects

13 the truth of the situation as the Prosecution put it. They ask Your

14 Honours to infer that the chief of staff referred to there is Mr. Kubura,

15 that the document is correct in saying that he was in the 3rd Battalion,

16 and that the meaning of "in the 3rd Battalion" is "in the Motel Sretno."

17 In addition, they ask Your Honours to infer that the reference to Kubura

18 by the witness must be to Mr. Amir Kubura and that he was, therefore, in

19 the area a day later, that he therefore knew and that he therefore had the

20 ability to act, but because he didn't do so, he's criminally responsible.

21 There's also another, as a footnote, inference that they ask Your

22 Honours to draw in that they say a 7th Brigade guerrilla unit participated

23 in the events because certain witnesses noted persons who arrested them

24 wearing headbands, and therefore they ask Your Honours to infer that it

25 must have been a guerrilla unit of the 7th Brigade.

1 In our submission, this is also a classic case of inference

2 pyramiding, piling one inference upon the other. The reason why we say

3 that is that if Your Honours take document P563, the Prosecution has led

4 no evidence to prove that the contents of that document are indeed

5 correct. That document, we have checked the transcripts, was never shown

6 to a single witness, so its contents was never tested before Your Honours

7 by any persons who were there at the time.

8 What Your Honours do have is the oral evidence of Mr. Alajbegovic

9 who said, and I quote, at page 18697, when he was asked: "Do you know

10 whether on that day or later on Mr. Kubura stayed in Kakanj,?" That date

11 being the 18th of May. He said, "Amir Kubura didn't stay in Kakanj on

12 that day or the following day. He did not appear in the barracks where we

13 were."

14 He was then asked: "You say he didn't appear in the barracks on

15 that day. As a rule when somebody from the command brigade in Zenica came

16 to the barracks, would the battalion command be aware of that fact or was

17 some other procedure followed?" And he said: "Well, usually, the

18 battalion command would be aware of the fact that somebody from the

19 brigade command was coming. It wouldn't be possible for someone to come

20 in secret without having announced his visit."

21 So you have oral testimony there, Your Honours, that directly

22 contradicts what is written on the face of that document P563.

23 I would also refer Your Honours to the testimony of Mr. Kulovic,

24 at page 18812, who confirmed the same.

25 In our submission, Your Honours, there must therefore be

1 reasonable doubt as to whether that document is accurate. The Prosecution

2 never ever suggested to either of those witnesses that they were lying. I

3 think to this day they're not saying that those witnesses are not telling

4 the truth. Indeed, Your Honours might think that if they had fabricated

5 the entire story, they would have also said more about where Mr. Kubura

6 might have been. Instead, they gave, in our submission, very

7 straightforward answers. They didn't see him on that day, and it would be

8 most unusual for somebody from the brigade command to be there without

9 them knowing. That evidence alone must raise a doubt, in our submission.

10 The Prosecution has sought to argue that military documents like

11 P563 are inherently reliable. So they would argue Your Honours can take

12 what is written in 563 as the gospel truth without hearing any witness,

13 without hearing from the author of the document, with any corroboration

14 whatsoever.

15 In our view, military documents are like all other documents.

16 There's nothing special about them. Each and every document that Your

17 Honours consider has to be looked at on its own merits, whether it comes

18 from the military or a private individual or a government. There's no

19 reason why the military are likely to be more accurate than anybody else.

20 In fact, quite the contrary.

21 At paragraph 12 of the Prosecution brief, they say because

22 military documents relate to very serious matters, including matters of

23 life and death, accuracy is therefore important. But Your Honours might

24 think equally when documents involve life and death issues, who is to

25 blame or whose fault it is, that there's every reason to fabricate

1 documents, that there's every reason to be inaccurate under the pressures

2 and strains of war. These were not normal times. Perhaps an accountant

3 can be faulted for making an error when sitting in his or her office

4 preparing books over a long period of time under little pressure, but

5 surely the same cannot be said of those involved in the heat of battle.

6 In our submission, Your Honours, there are an equal number of

7 reasons why military documents may not be inherently reliable and that

8 each and every document therefore has to be looked at very carefully as to

9 whether or not there is evidence independent of the document which

10 supports it.

11 On this point, Your Honour, I do wish to refer Your Honours to a

12 very recent decision that has come out in the Milosevic case. It's a

13 decision dated 8 July 2005, and there the Trial Chamber held, and I will

14 quote this to Your Honours: "The practice of the Trial Chamber has been

15 to deny admission of a document put to a witness where the witness did not

16 adopt or rejected outright or was not in a position to say anything

17 meaningful about the document or an assertion based thereon, on the basis

18 that such a document lacks probative value."

19 Your Honours, I appreciate that all of these documents have been

20 admitted, which is a different approach to that taken by the Trial Chamber

21 in the Milosevic case, but where we are all in agreement is that the

22 critical issue is what value should now be attached to those documents.

23 This dicta from the Milosevic Trial Chamber, in our submission, is

24 pertinent to the issue in that it has recognised that the value to be

25 attached to documents which witnesses have not been able to say anything

1 meaningful about is limited.

2 This was indeed the approach that Your Honours took in calling the

3 only witness that Your Honours did call in this case, Witness ZP, in order

4 that he be shown various documents to test the accuracy of the contents or

5 to further explain the contents of those documents. And in some cases he

6 said they were an accurate reflection. In others, he raised question

7 marks or he added further clarifications which were important to

8 understand the true meaning of the document.

9 Your Honours, in our submission, that argument applies very much

10 to document P563 as well.

11 Moving on to the other piece of evidence, the reference to the

12 name "Kubura." Here we have another situation where Your Honours are left

13 with a piece of evidence over which there is doubt. Who is this person

14 being referred to? The Prosecution ask you to infer that it is Mr. Amir

15 Kubura, but what else have they got to point you in that direction? They

16 would say document P563. There are witnesses in that argument, as I've

17 outlined. But in addition to that, they have not called any other

18 evidence to explain who was at that meeting. Here you have a meeting of

19 UNPROFOR with HVO commanders. Was the burden not on the Prosecution to

20 find witnesses who were there and to confirm one way or the other who was

21 at that meeting?

22 The witness who we are referring to at page 2126, he said when he

23 was asked in cross-examination that he didn't know anyone at this meeting.

24 He said he couldn't say who the name Kubura referred to, whether he was an

25 ordinary soldier or an officer. He concluded by saying: "I'm afraid it

1 is very difficult for me to say who was there." So Your Honours are left

2 with a situation where you don't have a positive identification.

3 Where there is doubt, in our submission it must be given to the

4 accused. He must receive the benefit of those uncertainties. It is for

5 the Prosecution to construct a coherent and thorough case using all the

6 resources at their disposal.

7 As Your Honours have indeed noted, it was incumbent upon the

8 Prosecution to make it clear to the Trial Chamber what the structure of

9 the army was at the time. Who were the different commanders at the

10 different levels in the brigades and the battalions within those brigades

11 and leading up to the corps command? The Prosecution had the burden of

12 establishing what the links were between these various people, how

13 documents and reports were exchanged, and ultimately when it comes to the

14 charges, who was present at what times and in what capacities. That is

15 surely the basis of any case brought under Article 7(3). The Prosecution

16 is the engine that drives this case. It was for the Prosecution to find,

17 as it could have, in our submission, the potentially direct evidence on

18 many of these points which would have assisted Your Honours in determining

19 what is the truth.

20 We say instead what you're left with are bits and pieces of

21 evidence, shades of grey which are plagued with doubt. You do not have

22 the certainty, we say, to convict on that basis.

23 Your Honour, if I may pause here and use the opportunity to make

24 some submissions on the nature of circumstantial evidence which are

25 relevant not only to Motel Sretno but also to the other charges that I'm

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1 going to come on to discuss.

2 Any legal dictionary will indicate that circumstantial evidence

3 can be defined as any fact from the existence of which the judge may infer

4 the existence of a fact in dispute. But there are always two cautions

5 that are outlined in the use of circumstantial evidence, and it is the

6 Prosecution that have maintained that their case is based largely on

7 circumstantial evidence.

8 These two cautions must apply, we say: First of all, as the

9 number of steps which you have to take from the first fact to get to the

10 ultimate fact increases, the weaker becomes the first fact as a way, as a

11 means of proving the ultimate fact. If there are a number of steps, the

12 opportunities as well for showing evidence where there is a contrary

13 conclusion increases.

14 Secondly, the common fear that all triers of fact are aware of of

15 untruthful or inaccurate evidence, it applies even more strongly to

16 circumstantial evidence than direct evidence. Circumstantial evidence

17 must always be examined narrowly as the possibilities of error or of

18 manufacturing false evidence and inaccuracy are inherently more prominent.

19 The fundamental test is that where evidence in a trial is

20 circumstantial, before a finding of guilt may be made, the Court must

21 conclude that the circumstances, and they must be individually proven

22 facts -- so for example, if the Prosecution wants to rely on P563, it has

23 to be a proven fact the truth of what is in that document -- were not only

24 consistent with an inference of guilt but also would not lead to any other

25 reasonable inference. So other reasonable inferences have to be excluded.

1 If there is another rational explanation or other inferences that

2 are consistent with innocence, then the inference has not been established

3 beyond reasonable doubt.

4 What must be guarded against is what I've referred to as

5 pyramiding of one assumption on another, and the reason for this is to

6 protect the public against verdicts which are based on conjecture and

7 speculation.

8 Your Honours, I wish to refer to a particular example of inference

9 stacking which was used by the Prosecution to illustrate my point. And

10 this can apply to all -- all of the charges, we say, in the indictment.

11 It concerned the presence of the 7th Brigade in Guca Gora on the 8th of

12 June, 1993.

13 In our submission, there was no need to seek to make such an

14 inference because Mr. Kubura is not charged with anything in Guca Gora,

15 but it may have significance for the way the Prosecution puts their case

16 in respect of Miletici and Maline. It's a long journey the Prosecution

17 seek to take Your Honours on. It starts with a document P474 on the 22nd

18 of May, signed by Mr. Terzic, and goes all the way through to the 8th of

19 June, the allegation then being that the 7th Brigade were involved.

20 The first document by Mr. Terzic was one that was shown to him.

21 Your Honours may recall it consisted of two pages. The first page was

22 signed by Mr. Terzic, stamped by him, and he said, "Yes, I recognise this

23 document."

24 The second page, which contained information about a detachment at

25 Mehurici of 92 persons, was admitted into evidence as a document attached

1 to the first document, but it wasn't signed, and when Mr. Terzic was asked

2 about it, he said that this was not a document which he recognised or

3 which he prepared. He had prepared the first document over his signature.

4 The Prosecution then referred to a later document, the document

5 marked P481 of 27 May 1993. This is, as Your Honours may recall, an

6 unsigned document that no witness was able to comment on as a document

7 which they had authored but which was shown to Mr. Kadic, the assistant

8 for logistics of the 306th Brigade. This document talks about the

9 redeployment of 20 persons from the Mehurici sector to Radojcici village

10 and for those persons from the 1st Company of the 7th Brigade to be

11 resubordinated to the 306th Brigade. And it says that, "Logistical

12 supplies shall be secured through the 306th Brigade." It's issued in the

13 name of "the battalion commander." That's all it says; no name, no

14 signature.

15 Mr. Kadic said - and Your Honours might think that this is

16 instructive - that it would be impossible to issue an order of this nature

17 for a battalion commander to be subordinating persons to another brigade.

18 Such an order could only be issued from a higher authority, logically. He

19 also said that -- and he was the assistant commander for logistics -- that

20 the supplies that are mentioned in this document were not and could not

21 have been secured through the 306th Brigade. So he was able to say that

22 as far as he knew, that order was not implemented, if it was an order at

23 all.

24 In our submission, he casts serious doubt on the validity of this

25 document, which the Prosecution was not able to and did not counteract in

1 any way. And yet the Prosecution continue to say, "Well, accept the

2 truthfulness of this, Your Honours, and place the 7th Brigade or parts of

3 it in Radojcici village around that time." And then they say, "Well,

4 because that village is relatively close, two to three kilometres, from

5 Guca Gora, and there is a videotape which appears to be taken from that

6 direction of that village, you can therefore conclude that members of the

7 7th Brigade must have been in the area at the time; they were involved in

8 reconnaissance; they were involved in taking that video; and that in fact

9 what you see on the video is reconnaissance that they would have

10 undertaken before the 8th of June, and then they must have been there on

11 the 8th of June. Because they were involved in reconnaissance, then they

12 must have been there.

13 Your Honour, that, in our submission, is an example of how you

14 take one piece of evidence which is not proven, we say, and seek to stack

15 it on top of other evidence over and over again, stretching it further and

16 further to reach a conclusion where you have no evidence to in fact prove

17 the conclusion directly.

18 In our submission, these are not links in a chain, and this is

19 certainly not a rope - which is often the image used for circumstantial

20 evidence - it's not a rope to be trusted if one was on the edge of a

21 cliff.

22 Your Honour, I'm now going to move on to the charges in respect of

23 Vares, November 1993.

24 The Prosecution commences their case by indicating that there was

25 a context of revenge. There was the massacre in Stupni Do, and they

1 indicate that emotions were running high. But what then, having raised

2 that, is the evidence that there was any revenge? There's been no

3 allegation of any killings or detention or inhumane treatment in respect

4 of anything that happened in Vares. The allegation is one of looting and

5 destruction.

6 In our submission, there are four things the Prosecution has to

7 prove in respect of Vares. They have to prove to Your Honours what

8 exactly was stolen, then by whom, when did that happen - timing is very

9 important - and where was it taken to? Destruction is a separate matter I

10 will come to at the end. For the time being I will focus on the four

11 questions concerning looting.

12 Your Honour, the legal framework within which to consider the

13 question of looting as crime under international humanitarian law is that

14 which prohibits the plunder of property but with the important exception

15 that has always been recognised, that an adverse party may seize military

16 and related equipment belonging to the other party.

17 I refer here, Your Honours, to an extensive survey that has

18 recently been undertaken by the International Committee of the Red Cross,

19 regarded widely as the guardian of international humanitarian law, where

20 they surveyed the practices of the countries of the world, national cases,

21 as well as international cases as well, in an effort to crystalise what

22 the customary law position was on various topics. And in respect of war

23 booty, they noted that the definition is one that is far from clear and in

24 fact includes many items which might not at first glance be incorporated.

25 They noted in defining what was military and related equipment -

1 and I'm quoting here from the chapter in the report at pages 173 to 176 -

2 that it includes arms and ammunition, depots of merchandise, machines,

3 instruments and even cash which belonged to the adversary. But it also

4 includes private property which is actually used for hostile purposes, and

5 some examples are given. Of course arms and ammunition, but also means of

6 transport, stores and supplies, cash, funds, and all property belonging to

7 the state which may be used for military operations.

8 The report then goes on to look at the situation from various

9 countries to show the range of different forms of property that are

10 included. And, Your Honours, given the composition of Your Honours' Trial

11 Chamber, I will cite from certain particular countries.

12 First of all, there's the French military manual which says that,

13 "Military objects from the enemy de facto become war booty, including

14 arms, combat transports and vehicles. The only exception is that

15 sufficient food must be allowed to be available for captured persons."

16 The military manual for Madagascar states that "Captured military

17 objects may become war booty. It may be used without restriction but it

18 belongs to the capturing power and not to individuals."

19 And the military manual of the Netherlands provides that:

20 "Military material, in the first place weapons and ammunition but also

21 other goods destined for military use, including stored goods, may be

22 captured as well." It does indicate that medical goods and goods

23 necessary to feed protected prisoners should not be captured. But there's

24 no dispute in this case that there were no prisoners captured in Vares.

25 There was no need to keep food or goods for any prisoners of the HVO or

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1 civilians who were there.

2 Your Honours, I raise this legal framework in order to point out

3 that it's for the Prosecution to prove to Your Honours what goods were in

4 fact stolen, do they fit into the category of war booty or not, and then,

5 what happened to them? If they were goods that could have been captured

6 and they were kept by the military, well, according to the customary law

7 position, there's no crime. They have to show that the property was

8 indeed private, totally unconnected to military activities, and that it

9 was taken by individuals and kept by them. This is not just a case of

10 saying: Well, Your Honours, it appears that some houses were looted and

11 it seems that one of the brigades that was there was the 7th Brigade,

12 therefore you can infer that they must have taken some goods, therefore

13 you can infer Mr. Kubura knew, he didn't punish them; he must be guilty.

14 They have to do a proper and precise job.

15 Looting, of course, is not the most serious offence, but if it is

16 alleged against an accused in a public document, then the law must be

17 applied properly. Where is the evidence of what precise goods were

18 stolen, that they had no connection to military activities, that they were

19 taken by individuals to their homes, never to be returned?

20 The Prosecution in their closing submissions relied upon document

21 P676, which says everything is being looted as a piece of evidence to

22 attempt to prove to Your Honours that looting was taking place.

23 There are two problems with it, we say, Your Honours. Firstly,

24 it's a document that goes from the operational group commander to the 6th

25 Corps Command and the 3rd Corps Command. It's not a document that goes to

1 the 7th Brigade. Your Honours might recall this is a document I asked

2 General Reinhardt about in cross-examination, and he said, ah, Mr. Kubura

3 should have known about instances of looting. There was this document

4 that said everything is being looted. And I put to him, well, this

5 document never went to Mr. Kubura. Would you accept that if it hadn't

6 gone to him he wouldn't have known about the contents of it? And he

7 confirmed that.

8 Secondly, Your Honours, all the document says is that everything

9 is being looted. Yes, perhaps at the time it was impossible for them to

10 list item by item, but at the same time the Prosecution can't rely upon

11 this document to prove that the goods that were being looted did not fall

12 within the category of war booty. What does it mean "everything is being

13 looted"?

14 This document, once again, was one that wasn't shown to any

15 witness. Nobody from the 6th Corps, nobody from the 3rd Corps, nobody

16 from the command of the Tactical Group was called to explain what happened

17 in Vares. It's not as though these people are no longer around. The

18 avenues were open for all of these persons, or those necessary to prove

19 the Prosecution's case, to be called.

20 One final point about this document before I move on, Your

21 Honours, is that it goes on to say that the rest of the soldiers joined in

22 the looting and burning. So it's an allegation that the 7th Brigade

23 entered Vares, everything was being looted, and then it says the rest of

24 the soldiers joined in.

25 Now, this is not an assertion that we as the Defence are

1 accepting, because we challenged the truthfulness or put the Prosecution

2 to the proof of the truthfulness of this document. But on the

3 Prosecution's own document, they concede that there were other soldiers,

4 not only soldiers from the 7th Brigade, involved, which has always been

5 one of our arguments based on the evidence, that there were many units

6 involved in this operation.

7 By its very nature being a tactical group combining various corps

8 and brigades, it's evident that not only the 7th Brigade was there, and we

9 say it's for the Prosecution to prove who stole those goods. It's not

10 enough to merely assert that the 7th Brigade was one of the brigades

11 there. They have to show that members of the 7th Brigade were involved at

12 the time they were there and show that they took those goods unlawfully.

13 But what evidence is there of that?

14 We have the testimony of Hakan Birger who said at page 5384 to

15 5385 that he did see some soldiers taking chocolate, bread. He mentioned

16 pens, mentioned women's shoes. He said also, though, that the UN food

17 storage was not touched. That's at page 5415. There is no other evidence

18 regarding what goods were stolen.

19 Your Honour, in our submission, if that is all the Prosecution

20 have, we are not in a situation where those acts fall within the

21 jurisdiction of the Tribunal to try the most serious offences.

22 In one of the footnotes in the Prosecution's written brief, they

23 quote the first appeal to be considered by the Tribunal, that of the Tadic

24 interlocutory appeal on jurisdiction, where the requirements of the crimes

25 charged under Article 3 were set out. And the third requirement - this is

1 at paragraph 94 - is that the violation must be serious. That is to say,

2 and I'm quoting now: "It must constitute a breach of a rule protecting

3 important values, and the breach must involve grave consequences for the

4 victim. Thus, for instance, the fact of a combatant simply appropriating

5 a loaf of bread in an occupied village would not amount to a serious

6 violation of international humanitarian law."

7 Although it might fall foul of the particular provision in The

8 Hague regulations, strictly speaking it does, but it does not amount to a

9 serious violation of international humanitarian law.

10 Your Honours, in our submission the evidence that the Prosecution

11 have in respect of looting and its connection to the 7th Brigade is de

12 minimus. They even noted that there was famine in the area at the time,

13 that troops would have been hungry, which Your Honour might appreciate

14 would explain why Mr. Birger saw persons taking food, chocolate, bread.

15 When it comes to Mr. Kubura in respect to Vares, the Prosecution

16 base their case on two main points. The first is that he apparently

17 changed the order and decided to send his troops into Vares. In that way,

18 they ask Your Honours to infer an intent to allow his troops to go there,

19 or knowledge on his part that by going there certain actions might occur

20 in a context of revenge. But, Your Honour, it was not Mr. Kubura who

21 decided to send his troops to Vares. It was the corps commander at the

22 time who ordered him in plain terms, and this is in document P674, to go

23 to Vares.

24 It's at point number 4 of the order, and it reads: "If the

25 conditions are right and the town has been abandoned, organise an attack

1 and liberate Vares. The commander OG East shall command all forces for

2 Vares." So clearly indicating that this is now a matter for the OG East

3 to command, but, "You are to organise an attack and liberate Vares."

4 He cannot be criticised for following the orders of his commander.

5 The next point the Prosecution make is that Mr. Kubura did not -

6 and this is probably the crux of their case - did not send the military

7 police of the 7th Brigade into Vares in the morning and thereafter when

8 it's alleged by the Prosecution that looting was taking place. In our

9 submission, Your Honour, he didn't have to do that because he did more

10 than that. He ordered them to withdraw the very same day.

11 As I've indicated before, he didn't get any of the documents from

12 the Tactical Group about any alleged looting. He went to Majdan Vares

13 along the road, about a kilometre outside of Vares, in the morning. You

14 heard evidence to that effect. And once it was ascertained that the town

15 was abandoned, his troops were automatically ordered to leave. The

16 Prosecution does not dispute that the 7th Brigade remained there any

17 longer. All they're saying is that on that day he should have sent his

18 military police in. But for what reason? There were no reports of

19 looting, the town was abandoned, and he ordered them to return.

20 There was a checkpoint set up. The Prosecution makes some issue

21 over whether that was a brigade checkpoint or civilian police. Whatever

22 it was, there was a checkpoint there consisting of police persons,

23 civilian and military, checking soldiers who were leaving.

24 Mr. Kubura was there at the checkpoint. So was the UN. Your

25 Honours might think that in those circumstances he was fully justified in,

1 at that stage, believing the situation was fully under control, that he

2 could go back to his command in Strezevo and that his troops would be back

3 that night to then be transported out.

4 On this issue of whether we as the Defence should have questioned

5 the international witnesses about this checkpoint and that the failure to

6 do that therefore cast some doubt on the truthfulness of what the

7 witnesses for Mr. Kubura said, Your Honours, in our submission the fact

8 that no questions were put in cross-examination during the Prosecution

9 case cannot in any way diminish what Defence witnesses come and say when

10 they are available for the Prosecution to challenge them.

11 The Prosecution never ever suggested to any of the Defence

12 witnesses that there was no checkpoint. They never challenged them as

13 witnesses who have come to make up that allegation. And in our

14 submission, even though we do not have to prove the case beyond a

15 reasonable doubt to you, we have established an evidentiary basis for Your

16 Honours to accept that there was a checkpoint outside of Vares.

17 Moreover, the Office of the Prosecutor does not dispute that on

18 that day units of the 7th Brigade who had been in Vares were retreating,

19 moving out, which means they would have passed through that checkpoint and

20 been observed by the UN personnel there as well.

21 Your Honour, if I may digress at that point, as we are looking at

22 the truthfulness of witness testimony, to make a more general point, which

23 is that in our submission, every witness has to be looked at on his or her

24 own merit when they come here. It does not matter which side they come

25 from, which army they were fighting in. It is for Your Honours to assess

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1 the truthfulness of their evidence given the questions that they are asked

2 by both of the parties.

3 The Prosecution has suggested in its written brief that Your

4 Honour should treat witnesses from the Bosnian army with great caution.

5 In our submission exactly the same potential reasons why witnesses might

6 conceal information or not be accurate in the evidence that they give

7 applies to those within the HVO or any other military. Any person who has

8 been caught up in a war will come with their particular experiences and

9 the same potential to be truthful, untruthful, accurate, inaccurate. Each

10 witness has to be judged on an individual basis.

11 And as Your Honour Mr. President, before every single witness

12 testified, Your Honour indicated that if there was anything that they

13 weren't certain about, whether it could be incriminating or used against

14 them, they had the right to notify Your Honour about that, and there was a

15 procedure for dealing with it whereby they could give their testimony

16 openly without the fear of it being used against them at some point. Your

17 Honour explained that procedure at length to each and every witness.

18 Your Honour, moving on to destruction, then, in Vares, the

19 evidence has been overwhelming, in our view, that there was no destruction

20 other than a few houses that were already destroyed or burning when the

21 forces from the Bosnian army arrived in Vares. You have heard that from

22 Hakan Birger. You've heard that from Sir Martin Garrod. You've heard

23 that from Rolf Weckesser, and Mr. Henricsson as well. Each of them

24 testified in clear terms that they did not witness any destruction. The

25 only evidence that the Prosecution potentially has is that of the

1 cross-shooting when the 7th Brigade allegedly arrived in the outskirts of

2 the town or the town. There seems to be some unclarity about that,

3 although in our submission that makes little difference either way.

4 The Prosecution is suggesting that everyone knew the town was

5 abandoned, and therefore going in in that way, cross-shooting into windows

6 is a form of unlawful destruction.

7 Well, in our submission that can't be right. Even though there

8 might be implication that a town is abandoned, it's impossible to know

9 when you arrive at a town like Vares only a few weeks after massive

10 military operations in the area, that it is definitely abandoned. You

11 surely have to, as a military, take the necessary precautions when

12 arriving. You can't trust any word that you've heard or indications other

13 than what you see yourself when you're there.

14 And Mr. Birger, who saw this, testified in very clear terms that

15 the operation was done in a professional way, and it only lasted as long

16 as was required. Once he told the commander that the town was abandoned

17 and there was no response to the cross-firing, then it ceased. It wasn't

18 a case of it going on and on, of soldiers going into buildings, kicking

19 down doors, setting them alight. There's no evidence of that whatsoever.

20 In his assessment - and this is at page 5384 to 5385 - Mr. Birger

21 said it had been done in a professional military manner as would be

22 expected of any unit entering a town who was uncertain what was there.

23 Your Honour, the Prosecution have conceded that the destruction

24 has to be on a large scale for it to constitute a war crime. On the

25 evidence that we have, in our submission there is no basis for finding

1 that the destruction was large scale or substantial.

2 On Vares, Your Honours, in a line we have another leaking ship.

3 There are holes all over it. You cannot, in our submission, be certain

4 beyond reasonable doubt of the offences in Vares that are charged against

5 Mr. Kubura.

6 Your Honours, I now wish to move on to the subject of de facto

7 command, and I would request that at that point we could break once that

8 topic has been covered, and thereafter I will return to the charges in

9 Maline and Miletici. As I've said before, these are not charges the

10 Prosecution has gone into any great detail in the oral submissions in

11 respect to Mr. Kubura, but I do wish to use the opportunity to set out

12 what our defence is in relation to those alleged killings.

13 De facto command. Your Honours, when this case commenced, the

14 Prosecution started with the date of 1 January 1993 as the date from which

15 Mr. Kubura should be held responsible for crimes committed. After the

16 decision by the Appeals Chamber on whether or not you had to be the

17 commander at the time offences were committed, the Prosecution then moved

18 the date to 1 April 1993 as the date when Mr. Kubura assumed command or

19 should be held responsible.

20 When you read the Prosecution's written brief now, we have another

21 shift. It's moved from 1 April to -- and this is at paragraph 56 - to 12

22 April, or at least 12 April. As I said before, only less than two weeks

23 before the events in Miletici.

24 On what basis does the Prosecution now allege that at that time,

25 or more or less at that time Mr. Kubura was suddenly elevated to be the de

1 facto commander?

2 In footnote 134 of their brief, the Prosecution allude to four

3 documents; P916, P816, P410, and P727.

4 Your Honour, we've looked at these documents very carefully, and

5 none of them indicate that at that point in particular Mr. Kubura can be

6 said to have become the commander in fact of the entire 7th Brigade. Yes,

7 one of the documents does say that Mr. Korisic is not available, but it

8 doesn't indicate that Mr. Kubura has either been appointed or that he is

9 now the person in charge. There's nothing about either of those documents

10 from which you can infer effective control of the entire brigade.

11 The Prosecution have conceded, Your Honours, that there is no de

12 jure control over the 7th Brigade. There is no official formal

13 appointment until the 6th of August. We say it's the 6th of August, out

14 of all the dates, that is the correct date from which he did become the

15 commander and assume command functions. Whatever happened before 6 August

16 1993 is not his concern.

17 Your Honours, we fully accept that de jure control is not the only

18 way in which somebody can be held responsible under 7(3). Of course de

19 facto control is a basis for holding someone responsible. In effect as

20 the commander, the person has stepped into the shoes of the de jure

21 commander. Indeed, in the Blaskic appeal it was made quite clear that

22 simply showing de jure control is not sufficient, because in fact somebody

23 else might be in charge. You need to do both.

24 What we dispute is essentially what we regard as a form of strict

25 liability that has been put forward by the Prosecution.

1 Paragraph 57, they say that there's a military principle which is

2 that the senior officer of a unit is always in command in the absence of

3 the de jure commander. The senior officer is always in command.

4 That can't be right, Your Honours. It must depend on the factual

5 circumstances of the individual involved. It might well be that the

6 senior officer is not the person who takes over command in reality, or he

7 might be one of many people who assumes command. It cannot be right that

8 simply because you're the senior person you therefore must be considered

9 the person with the necessary factual powers to prevent or punish.

10 In addition to that, General Karavelic said in his testimony, and

11 Your Honours might, thinking back on their testimony, regard it as an

12 engaging and spontaneous discussion of the issues at stake, one in which

13 he was able to assist Your Honours greatly as somebody who had been in the

14 military, with military experience, as to what happens when a commander is

15 no longer there, and he was adamant that the position of Mr. Kubura was a

16 very uncertain one, that he would have wanted certainty if he was in his

17 position. And although he couldn't say with any certainty, because he

18 didn't know the exact details, he was able to say as a matter of general

19 theory a commander remains a commander until someone is appointed in his

20 place, and that there might have been many reasons, as often happens, why

21 the next most senior person wasn't appointed, why there was a vacuum for a

22 period. But he also said the military has to keep functioning. The

23 brigade is a living organism. So it keeps operating. People keep doing

24 what they were doing to the best of their ability. But in our submission

25 that does not lead to the inference that therefore Mr. Kubura controlled

1 everyone, including those involved the detention facilities, because

2 that's ultimately what we're talking about here, at all times before the

3 6th of August, 1993.

4 General Karavelic also mentioned that Article 14 of the rules of

5 service, which the Prosecution have relied upon, was not applicable in

6 these circumstances, that it was applicable only in cases of emergency.

7 For example, where a commander was killed or taken captive, then the

8 deputy stands in for that time. But he said in respect of a situation

9 like this where somebody is not there, they've gone abroad, in those

10 circumstances it has to be properly regulated. And because it's not -- we

11 say you can take it one step further. Because it's not, you cannot infer

12 that Mr. Kubura, automatically, as the next senior officer, became the

13 commander. There were many other, as Mr. Terzic noted, assistant

14 commanders. They continued doing their duty as well. And he said that

15 the chief of staff, together with the assistant commanders, continued to

16 run the brigade as best as they could.

17 The Prosecution should have, but we say they didn't, bring

18 evidence to show that Mr. Kubura was able to and did issue orders

19 particularly in respect of detention centres, in respect of the military

20 police, in respect of any security matters relevant to the 7th Brigade.

21 There is another big gap, another hole right there, and that applies to

22 the Motel Sretno. They've asked Your Honours to infer his presence there,

23 but they've also said you must infer that he could have done anything. It

24 certainly applies to the music school as well, which I will address Your

25 Honours on at a later point.

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1 Your Honour, the Prosecution in their brief in the paragraphs that

2 follow paragraph 57, they refer to some quotes of members of the 7th

3 Brigade who testified before Your Honours. Mr. Junuzovic, for example,

4 footnote 133. We would urge Your Honours to read all of what the 7th

5 Brigade witnesses said.

6 The Prosecution has chosen the one quote which does appear on its

7 face to go against what I'm saying, but if you look at everything he said,

8 the picture is different.

9 There's another occasion where this happens, I will come to it

10 later, in respect of international witnesses. If you take one paragraph

11 from what they said, yes, it might appear to fly in the face of what the

12 Defence is submitting to Your Honours, but when you look at the total

13 picture, you look at the cross-examination and you look at how the witness

14 was asked to expand and explore further aspects of the issue, that's when

15 Your Honours get to the evidence that you can rely upon.

16 And he made it quite clear - and this is at page 18501 and onwards

17 - that Mr. Kubura was not signing any documents as the commander. He was

18 doing so as the chief of staff, as he probably would have done in any

19 event, even if the commander was there. None of these documents related

20 to security matters, detention facility matters.

21 He also said that in his practice he wasn't acting like the

22 commander. People weren't referring to him as "our commander," as often

23 happens in these situations where somebody assumes power in a vacuum. He

24 didn't move into the commander's office. He was still in the office of

25 the chief of staff.

1 There are no indications on the evidence that we have somebody

2 here beginning to take over, grooming himself for becoming the commander.

3 Rather, we see Mr. Kubura continuing to do what he has always done as

4 chief of staff. And likewise, the other assistant commanders are doing

5 the same. And the brigade keeps functioning. It's a living organism.

6 They all did the best that they could in those circumstances.

7 In our submission, there cannot be a basis for criminal liability.

8 Your Honours have to, on the evidence before Your Honours, be able to

9 deduce that Mr. Kubura indeed did effectively control, he had actual

10 control over the perpetrators, he himself. We say that only happens from

11 6 August onwards when his position is finally clarified. But up until

12 then, he is not the person where the buck stops.

13 Your Honour, I'm now going to move on to Miletici and Maline. I

14 think it may be prudent if we had a short break at this stage, and I will

15 then go on to those counts, together with addressing the music school,

16 before I conclude. Thank you, Your Honours.

17 JUDGE ANTONETTI: [Interpretation] It's 12.15 now. We'll have a

18 20-minute break, and we will resume at twenty to one.

19 --- Recess taken at 12.14 p.m.

20 --- On resuming at 12.41 p.m.

21 JUDGE ANTONETTI: [Interpretation] We will now resume. I give the

22 floor to Mr. Dixon.

23 MR. DIXON: Thank you, Your Honours. I plan to complete the

24 closing submission on behalf of Mr. Kubura by the normal break for lunch

25 at quarter to two. It may be, although I don't think so, it may be that

1 it goes a little longer than that, but I am informed that we do have this

2 courtroom for the entire day, so if we ran a little bit over quarter to

3 two that would not cause any major inconvenience, but I will aim to finish

4 by the normal break.

5 Your Honours, turning to Miletici and Maline. Mr. Mundis said in

6 his closing that, and I quote his exact words: "The only reasonable

7 inference that can be drawn from this evidence that you have before you is

8 that these foreign fighters were under the effective command and control

9 of Mr. Hadzihasanovic, and with respect to the foreigners in the 7th

10 Brigade, under the effective command and control of Mr. Kubura."

11 So he qualified it quite clearly. He said, "with respect to the

12 foreigners in the 7th Brigade."

13 What is, Your Honours, the evidence that Mr. Mundis was referring

14 to? Firstly, he took Your Honours through a series of alleged joint

15 combat operations in 1992 and 1993. In our submission, none of these

16 incidents are at all relevant to the case against Mr. Kubura. He is not

17 charged with any incidents in Karaula, for example, or any incidents in

18 Bjelo Buce, or any incidents in Kacuni in June 1993, or Grabovica, or Novi

19 Travnik, or Dubravica or Guca Gora. Mr. Kubura was under no obligation to

20 prepare any defence in respect of any of these particular alleged

21 incidents. He has not been charged with any crimes been committed there

22 by persons the Prosecution allege are his subordinates. These various

23 incidents have not even been mentioned in the indictment as connected to

24 what happened in Miletici and Maline.

25 We invite Your Honours to focus on those two villages and what

1 happened on those days to determine whether the Prosecution has proved its

2 case.

3 In any event, many different brigades and units are mentioned in

4 respect to these various incidents that the Prosecution showed Your

5 Honours on that map with the dots on. The operations involved many

6 different units, according to the Prosecution. There was no evidence in

7 respect of any of them that there was incorporation into any brigade. In

8 fact, by their very name which the Prosecution has chosen, "joint

9 operations," they indicate a horizontal link more than something vertical,

10 that of subordination within ranks.

11 The Prosecution has not sought to show how any of them relate to

12 the events in Miletici and Maline, and that's because in respect of those

13 events they cannot prove that the 7th Brigade was even present, let alone

14 involved in any joint combat operations with any foreign or other

15 irregular troops.

16 The other evidence that Mr. Mundis referred to was that of the

17 international witnesses who the Prosecution have argued are credible

18 witnesses because of the fact that they are independent, no axe to grind.

19 They were there, the eyes and ears of the international community on the

20 ground. Which is all very well, Your Honours, but everything depends on

21 what actually did they see? What did they know? How much did they find

22 out about what was happening within the warring factions?

23 They've all agreed, Your Honours, that they knew very little.

24 This was not their war. They were not gathering intelligence, and they

25 had no hard evidence on who the foreigners were subordinated to. There

1 were rumours, there were assertions, possibilities, probabilities. Those

2 were all included in some of their reports, but nothing that would take

3 Your Honours to a certain, beyond-reasonable-doubt conclusion.

4 All of those international witnesses were brutally honest with

5 Your Honours in saying that they could not be sure one way or another

6 where the Mujahedin fitted in. They had theories, yes, because they had

7 no hard evidence, hard intelligence about who controlled the Mujahedin.

8 In any event, none of them were in Miletici or Maline at the time.

9 They never witnessed what happened there, and they're not able to say who

10 was in charge at the time.

11 Mr. Mundis quoted a section from Mr. Williams' testimony for Your

12 Honours. What wasn't cited was what he said in cross-examination when he

13 was asked about Mujahedin in Central Bosnia. The question was put to him:

14 "General Williams, you said in response to questions from Their Honours

15 that the command and control situation was easier to assess between the

16 formal units in Central Bosnia but more difficult with regard to the

17 Mujahedin." And his answer at page 5998 was: "That's correct." The

18 question continued: "And the reason for that would be that, as you've

19 said on a number of occasions, you lacked hard intelligence about the

20 subordination structure with respect to the Mujahedin." His answer:

21 "Yes, that's true."

22 When he was asked about Exhibit P378, about a sentence in that

23 report saying Mujahedin are subsumed within the 7th Brigade, he said: "I

24 think the statement made in that paragraph -" that's paragraph 15 of the

25 exhibit - "may be a little too concrete given the evidence that was

1 probably available at that time."

2 The question continued: "The rest of the paragraph refers to a

3 caveat of some sort which says that there are some independent Mujahedin

4 units." And he says, "Yes, that is what it says."

5 So he conceded that that kind of statement was too concrete given

6 the real evidence that they had.

7 Mr. Mundis also quoted Mr. Bower, but what was not highlighted to

8 Your Honours is that at page 5126, he was asked whether he had any

9 detailed knowledge of the structure of the 7th Brigade and the

10 subordination and composition of that brigade, and he said, "Along with

11 any other unit, no. I wasn't the military liaison officer." When the

12 military liaison officer, one of them, Mr. Kijal [phoen], was questioned,

13 he said exactly the same thing: "We didn't have that kind of

14 information."

15 With Mr. Bower the question was then put: "So you had no

16 intelligence about under whose control the Mujahedin were, did you?" "Me

17 personally? No."

18 In our submission, Your Honour, that evidence, and Your Honours

19 will see that increasingly in the international witnesses when they are

20 examined, is highly pertinent to the issue in dispute. As independent

21 observers, they were not certain. And likewise Your Honours, given their

22 evidence, cannot be certain either, we say.

23 There was lastly, Your Honours will recall, the evidence of

24 Mr. Chambers where he was asked about a document prepared by him regarding

25 the preparation of reports, and he said in that document, and he confirmed

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1 that it was probably used for -- for briefing, that you could almost write

2 anything in these reports. No one really checks. No one really cares.

3 Now, that's not to say that all of these reports are wholly

4 useless and inaccurate, but it's a telling remark as to how much reliance

5 can be placed on these reports on the critical issues in this case,

6 especially when the international witnesses have themselves conceded that

7 they did not have the answers.

8 Your Honour, in our submission it is also telling that when the

9 Prosecution referred to various of these other incidents, these joint

10 operations, as they put that, in their oral submission, they at great

11 length went into examining the documents and in particular looking at the

12 war diaries from the brigades that were operating in those areas. And yet

13 when it comes to Miletici and Maline, that evidence about the documents on

14 the ground, the war diaries, which have been shown to witnesses and which

15 they have verified, has been totally pushed aside.

16 Your Honours will know the Defence case for Mr. Kubura is that the

17 7th Brigade was not present in either of those locations, as is borne out

18 by the witness testimony of all the brigades that were present and, most

19 importantly, by contemporaneous documents and war diaries that have been

20 shown to witnesses who were in the area at the time, mainly witnesses from

21 the 306th Brigade. The Prosecution has not sought to deal with that

22 evidence.

23 In our submission, evidence which provides an entirely reasonable

24 and rational inference that can be drawn of innocence, the Prosecution has

25 to exclude all other reasonable inferences to convince Your Honours of

1 guilt. In our view, they have not done that in respect of Maline and

2 Miletici because there are inferences that can be drawn entirely

3 reasonably which point in the opposite direction. It is for the

4 Prosecution to negative any other inferences that can be drawn. That is

5 the burden that they carry. Not only must they show Your Honours that it

6 is the only reasonable inference, but they also have to negative all other

7 possible inferences that could be drawn which are reasonable and which

8 point away from guilt.

9 They haven't, for example, dealt with General Reinhardt, who was

10 their own witness who categorically stated that he did not find any

11 evidence of the 7th Brigade being present in Miletici or Maline.

12 They have not dealt with the evidence relating to Mr. Ramo Durmis.

13 That is, if Your Honours look at the written submissions, the only

14 evidence that they really rely upon in respect of Mr. Kubura for Miletici,

15 that Mr. Durmis was still a part, as they say, of the 7th Brigade at that

16 time. And yet a Prosecution exhibit, P941, which was a statement taken

17 from Mr. Durmis as a suspect, confirms in his own words that he left the

18 brigade before any of those alleged incidents. He says that himself. And

19 Your Honours will remember questions that were asked of Judge Ahmetovic

20 about that statement. Not the substance of it but the form that it took.

21 That's at page 16193 onwards. Whether it was taken in accordance with the

22 law, that he was properly cautioned and that he was able to make his

23 statement voluntarily. And he said yes, the statement was perfectly

24 lawful.

25 The Prosecution have also overlooked DK29, a document dated 19

1 February 1993, which quite plainly shows that the commander of the 1st

2 Company of the 1st Battalion is not Mr. Durmis in February 1993.

3 In his interview to Witness ZP, he said the same. He didn't say

4 when he'd left, but he said he had left. That corresponds with this

5 evidence that he gave in P914 and also DK29.

6 You've heard from the witnesses within the 7th Brigade -

7 Mr. Terzic, Mr. Adilovic, Mr. Abramovic, Mr. Jusufovic - who all were

8 either with Mr. Durmis at the time or knew him. This is firsthand

9 evidence they gave of how he left the brigade after the operations in

10 December 1992. This evidence wasn't challenged by the Prosecution.

11 There is no reason to, in our submission, disbelieve the evidence

12 that these witnesses gave, which is entirely consistent with what

13 Mr. Durmis himself said and the documents that I have referred to.

14 Yes, there is the citation on 14 April 1993. That's P727, but the

15 witnesses have clarified that that relates to the operations in 1992, at

16 the end of 1992, that the citations were given on the 14th of April

17 because that was the one-year anniversary, as is stated in the document,

18 of the formation of the Bosnian army. And it's quite clear if you read

19 the way in which the award is given, that it's not given to Mr. Durmis

20 himself. It's given to the 1st Company. There is a section in the

21 document where the persons who are awarded individually and personally are

22 listed, and then there's a separate section where the 1st Company is

23 mentioned.

24 But in any event, he is no longer part of the brigade at that

25 point. Any later references to him, none of them confirm that he's still

1 with the brigade. They all show that he is outside of the brigade, that

2 he is no longer under the effective control of that brigade or any other.

3 He is one of the renegades, in our submission, that Mr. Sipic is

4 referring to in various of his documents where he complains about problems

5 with people who are no longer part of a brigade, where their status must

6 be resolved.

7 We have in our brief referred extensively to those documents,

8 because Mr. Sipic was here before Your Honours. It was his area of

9 responsibility, and he was able to testify as to what happened within his

10 area. At no point did he ever maintain that the 7th Brigade were involved

11 in any of the alleged killings. And also, he confirmed through looking at

12 his documents that there was no reference to the 7th Brigade in relation

13 to any of those alleged killings.

14 Mr. Sipic made many complaints, as Your Honours will see from

15 those documents. There was always something being sent up to the corps

16 command, but in none of those documents did he ever say the 7th Brigade is

17 involved here in the commission of crimes and something must be done about

18 that. And Your Honours might think he had every reason. If there was

19 another brigade committing crimes in his area of responsibility, he had

20 every reason to cover himself and report that. He has no interest in

21 protecting any other brigade. But there's no document that indicates the

22 7th Brigade was there and involved and in any way needed to be

23 investigated. His complaints are about Mujahedin, and he mentions people

24 who have left brigades.

25 Moreover, as Mr. Waespi said when he summed up the reporting that

1 was going on after these incidents, there was no mention in any of those

2 reports about the 7th Brigade being responsible for any of these

3 incidents. The Prosecution may have alleged wrongly some form of

4 cover-up, but they have not alleged that there was a cover-up for the 7th

5 Brigade. That's because there was not anything of the sort. The reports

6 do not mention that brigade. They certainly mention other brigades. They

7 mention the 306th Brigade, but they do not mention the 7th Brigade.

8 When Mr. Mazowiecki wanted a report, when the chains of gathering

9 information and gathering reports was set in motion, the 7th Brigade was

10 never approached at all in respect to incidents in Miletici and Maline.

11 They weren't approached before that. There's no notice whatsoever to any

12 of the commanders in the 7th Brigade of any problem being reported in

13 respect of their brigade.

14 Your Honour, I refer here for completeness to three exhibits,

15 P111, P171, and P174, which support the submission that I have made.

16 Your Honours, Mr. Mundis and his predecessor Mr. Withopf both

17 referred you to this notion of a puzzle to prove their case.

18 Mr. Mundis said some time ago - this was at page 4824 - that Your

19 Honours are clearly being given small pieces of the puzzle which will only

20 be clear at the end of the case. Likewise, Mr. Withopf, in April 2004,

21 said: "I wish to really emphasise that this is a circumstantial case. At

22 the end of the day, there will be many, many, many bits and pieces of

23 evidence which, put together, will provide the Trial Chamber with the full

24 picture, the full picture of the truth."

25 Your Honours, if you consider paragraph 104 of our written closing

1 brief, Your Honours will see in our submission what is a true piecing

2 together of the puzzle of what happened. In our view, the Prosecution

3 have not addressed this evidence. Starting with the testimony of Enver

4 Adilovic, about his company going, after events in Ahmici, to an area near

5 Vitez, arriving there on the 20th of April and remaining there until July.

6 That was the so-called 4th Vitez Company of the 1st Battalion of the 7th

7 Brigade. Not disputed in any way by the Prosecution.

8 We then move on to DK20, dated 5 June 1993, which was confirmed by

9 many witnesses. And it's a report from the Operational Group Bosanska

10 Krajina sent to the 3rd Corps, stating that on the 4th of June, 1993, the

11 HVO had intensified its attack and that there was an HVO artillery attack

12 from the direction of Hajdarove Njive. By this report, Mr. Sipic is also

13 ordered to move along the Maline axis. And also, very significantly, it

14 is proposed in this report to the 3rd Corps Command that Ovnak should be

15 attacked from Zenica. As you know, that indeed did happen on the 8th of

16 June. The 2nd and the 3rd Battalions of the 7th Brigade were involved in

17 that operation from the other end.

18 But to complete the picture so Your Honours know where the 1st

19 Battalion was on that day, we continue with further documents. This is

20 P279 of 5 June, an order from the 306th Brigade -- sorry, an order to the

21 306th Brigade, also to the 3rd Corps Command, to continue with the

22 operations in the Bila Valley. No mention is made of the 7th Brigade

23 being in the Bila Valley at that time.

24 Also on the same day, DK19, the OG reporting to the 3rd Corps

25 command, which states that the 1st Battalion, not in the Bila Valley, but

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1 is engaged towards Hajdareve Njive where the HVO is holding firing

2 positions. This is confirmed in the war diary of the Operational Group

3 DK18. So not only is it a report that has gone out but it's confirmed as

4 something that did happen on that day.

5 Your Honours have been to this area and know its location in

6 relation to the town of Travnik where the 1st Battalion of the 7th Brigade

7 was based. It's very close, about a kilometre away, but some ten to 12

8 kilometres away from Maline.

9 On the 6th of June, DK34. This is a report from the 1st Battalion

10 of the 7th Brigade, stating that it has captured Hajdareve Njive but had

11 to retreat. This was confirmed by witnesses from the 7th Brigade who

12 actually participated in that operation.

13 DK21. We've moved on now to the following day, the 7th of June.

14 We see the 306th operational diary states that the HVO is shelling and

15 attacking in the Bila Valley and that a meeting of the 306th Brigade is

16 taking place in Mehurici. Nowhere in that diary is it stated that the 7th

17 Brigade is going to be involved in any way.

18 Instead, what you have on the 8th of June, a document that has

19 been shown to many witnesses, is an OG combat report signed by Alagic

20 which states that the 1st Battalion of the 7th Brigade is active at

21 Hajdareve Njive and towards Bukovica. Once again confirmed by witnesses

22 who were part of this operation.

23 We see here the documents reflecting the testimony that witnesses

24 have been giving.

25 Also in relation to document P465, Your Honours heard the evidence

1 of General Cuskic, the commander of the 17th Krajina Brigade, who was in

2 the area at the time working very closely with General Alagic. And he

3 confirmed Alagic's signature in respect of P465, and he confirmed the

4 reliability of that document, because he was in the field, and he said,

5 "Yes, that was the situation in the field on 8 June," and that General

6 Alagic would have prepared it from that information.

7 9 June 1993, the day after the events in Maline. DK22, which is a

8 cable from the 306th Brigade to the 3rd Corps Command stating that the

9 brigade had reached the Maline axis on 8 June. Various witnesses from the

10 306th Brigade who came to testify confirmed that that is in fact the

11 operation they were involved in. No mention of the 7th Brigade involved

12 in that operation in any way whatsoever.

13 On 9 June, to complete the puzzle, DK42, an OG combat report

14 stating that the 1st Battalion of the 7th Brigade is to attack towards

15 Srbica. Witnesses have confirmed they moved from Hajdareve Njive where

16 they had conducted the second operation there on the 8th of June, to the

17 9th of June to a nearby location, another location that Your Honours would

18 have viewed during the site visit. Nowhere near the area of Maline.

19 In our submission, it is quite plain that the activities of the

20 7th Brigade, all of its battalions, are accounted for during this time.

21 There is a perfectly reasonable inference to be drawn which points to the

22 7th Brigade not participating in any way in the operations, and most

23 importantly, in any way in any of the crimes that may have been committed

24 during that time.

25 Your Honour, the evidence that the Prosecution has relied upon in

1 respect of Maline are three witnesses who were called during the

2 Prosecution case who they suggest identified certain members of the 7th

3 Brigade in the area of Maline at the time. However you regard this

4 evidence, none of those witnesses placed any of the members of the 7th

5 Brigade they say might have been there at the scene where the killings

6 allegedly occurred. None of them were witnesses to that event,

7 identifying members of the 7th Brigade. And in addition to that, none of

8 the evidence, in our submission, confirms that in fact what they saw were

9 members of the 7th Brigade at the time.

10 When their evidence is viewed as a whole, and we cited the

11 evidence in full in our response to the Prosecution's 98 bis submission,

12 it's plain that they either were not able to recognise the badges that

13 they saw or didn't know the badges of the army or conceded that many

14 different badges were seen or used by different people at the time and

15 that they were not sure of who exactly was present there. Their testimony

16 is not to be regarded as untruthful. That's not what we're suggesting.

17 It's simply testimony that doesn't point with any certainty to the

18 presence of any members of the 7th Brigade there, and it must be weighed

19 up against the wealth of evidence that I've just outlined for Your Honours

20 recorded in the documents and confirmed by the oral evidence of countless

21 witnesses. This is evidence which the Prosecution have failed to address,

22 and we say that you cannot therefore be certain, relying on three

23 witnesses the Prosecution refers to whose evidence is not in any event

24 clear given the case that the Defence for Mr. Kubura has put forward.

25 The Prosecution has not built the puzzle filling in all the many,

1 many, many pieces as they said they would. We have shown Your Honours

2 what the true picture was both in respect of Miletici and Maline.

3 In our submission, the case for Mr. Kubura to be acquitted on

4 these counts is overwhelming.

5 Your Honours, I want in the time remaining to make a few comments

6 about the music school and the charges of destruction and looting in Ovnak

7 which the Prosecution didn't have time to comment on in their submission.

8 With respect to the music school, Your Honours, the key issue has

9 always been what evidence was really available to Mr. Kubura of what was

10 happening in the music school. It doesn't have to be evidence of actual

11 beatings. It can be evidence which puts you on notice that further

12 inquiries must be made. But there is nothing before Your Honours which

13 shows that he was ever told anything about the music school. No reports,

14 no meetings, no visits, no complaints made to him. He is an invisible

15 figure when it comes to the music school.

16 Many other people have been mentioned in relation to what went on

17 there. Indeed, one of them is currently being prosecuted for what is

18 happening there -- for what happened there.

19 What the Prosecution are left to rely upon is this notion of a

20 notorious or widespread rumour about the music school. We say that is not

21 enough to infer knowledge on the part of Mr. Kubura. Firstly, there is

22 evidence which contradicts that. Not all the witnesses that were called

23 in respect of the music school indicated that these rumours were rife.

24 The head of the Municipal Executive Committee for Zenica, for

25 example, testified - and this is at page 14229 onwards - that if there

1 were ongoing beatings and serious incidents at the music school on a daily

2 basis, given the fact that it's located right in the centre of Zenica near

3 the court, people would have known about this. Something would have been

4 done. His view was that it was not something which everyone was aware of.

5 Even Mr. Adamovic, who you heard from extensively in respect of

6 the music school, acknowledged that he didn't know whether any of the

7 rumours were true. There were rumours and stories, he said. "What the

8 truth of the matter was I wouldn't be able to tell you." We say, Your

9 Honours, on the basis of that kind of evidence and given the nature of the

10 alleged offences there, it would be a bridge too far to therefore conclude

11 that Mr. Kubura knew about what was happening.

12 It would be one thing if the events there took place over an

13 extended period of time and we were talking about hundreds and thousands

14 of people being detained in concentrate camp-like facilities. It's in

15 those circumstances that in cases like Yamashita and Toyoda, after the

16 Second World War, the Tribunals said, look, these were just such big

17 offences, so notorious, such awful events, that even though there was no

18 report sent to you about it, you must have known.

19 We are talking here about one small building. Your Honours went

20 to the building. And this is not in any way to diminish the events that

21 took place there and what persons may have had to endure there. Every

22 single individual is entitled to have their body protected and not to be

23 beaten in the way that we've heard some of the evidence come out. But

24 we're talking about a limited number of people over a limited period of

25 time. Even though the indictment says until January 1994, essentially by

1 July there are no further allegations of any beatings.

2 But in circumstances where you're talking about one venue in the

3 context of the whole of Central Bosnia and the area where the 7th Brigade

4 was operating, to infer knowledge on the basis that some witnesses have

5 said there were some rumours and other witnesses have said no, they

6 weren't that notorious, would, in our submission, be taking the principle

7 of imputed knowledge to the extreme. In our submission, Your Honours

8 would need to have at least some evidence of information flowing within

9 the 7th Brigade command and to Mr. Kubura about what happened.

10 Nobody from the international community spoke to him about this

11 matter. He was not seen as the person to turn to. No one asked him for

12 permission to visit the music school. He was not the authority in respect

13 of the music school. He never went there with anyone. In fact, most of

14 the international witnesses said they didn't even know who Mr. Kubura was.

15 In our submission, the Prosecution is scratching at straws here in

16 an attempt to try and get this charge to stick in respect of Mr. Kubura.

17 In addition to that, I have to refer back to the points I made

18 earlier on about his real ability, even if it can be inferred that he had

19 knowledge, his real ability to do anything in respect of the music school.

20 As the chief of staff, was it his responsibility at all, or what could he

21 have done? And you have to layer onto that the evidence that has been led

22 about the parallel security chain of command. Not that that is a chain of

23 command which means that the security system is independent of the

24 commander. We're not alleging that. What we're saying is that there was

25 a separate chain of command for security matters, a chain of command that

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1 everyone would have been aware of who would have been dealing with these

2 kinds of matters. And in circumstances where you're not the de jure

3 commander but you do have an assistant for security matters, Your Honours

4 might think that Mr. Kubura, even if he knew anything, would have been

5 entirely reasonable in assuming that that matter was being dealt with by

6 the assistant commander and the hierarchy above him and that he didn't

7 have the power, without being formally assigned, to interfere, especially

8 when -- and you have to layer on top of that that there was evidence about

9 people using the music school as a way of getting money, as a way of

10 taking revenge, that you had some very powerful people there doing their

11 own thing.

12 So, Your Honours, we ask you to take all of those various layers

13 into account. Firstly, lack of evidence of knowledge; secondly, lack of

14 evidence of control in respect of the persons in the music school; also,

15 to take into account the security chain of command which was operational

16 at the time; and in addition to that, fourthly, you have evidence about

17 people doing these things for their own personal gain with, Your Honours

18 might think, incentive to cover up what was happening there. We say there

19 must at least be doubt regarding whether the Prosecution have proved this

20 case. Do all of those layers not add up to a degree of doubt to the point

21 where we would say Your Honours cannot be certain enough to convict in

22 respect of the music school.

23 Lastly, there is the ongoing proceedings against Mr. Isic. No one

24 else has been proceeded against from the group of people I've mentioned

25 who were intimately involved with the music school. He is the person who

1 has been singled out. And Your Honours might well think that the fact

2 that he is being punished, albeit sometime after the event, is important,

3 that the person most responsible is being brought to justice, and that

4 that should at least serve, at the very least serve, as compelling

5 mitigation in respect of this particular charge.

6 Your Honour, finally I come to Ovnak. Your Honours would have

7 heard the evidence from witnesses in the 7th Brigade about what happened

8 in Ovnak. There is no evidence before Your Honours that members of the

9 7th Brigade were involved in operations outside of the mountain pass area

10 of Ovnak and leading up to the Strmac elevation.

11 Your Honours heard firsthand evidence of how people from the

12 lowest level to the highest level of the battalion command, in a detailed

13 way, and they set out how they were involved in this particular operation,

14 that they didn't go to any of the other towns that are mentioned;

15 Grahovici, Barakovici, and Susanj. There's no evidence that places any of

16 them there. And how they withdrew immediately once the operation had been

17 completed, as they were dispatched immediately for another operation in

18 the area of Kakanj. The documents once again confirming that. This is

19 not just the witnesses but the orders, the reports, and the war diaries.

20 Once again, we say the bits of the puzzle fit together in respect

21 of the case that the Defence has advanced.

22 There is no evidence which pinpoints particular perpetrators being

23 from the 7th Brigade, bearing in mind once again that this was a

24 multi-brigade operation, being involved in either looting or destruction.

25 As occurred in Vares, there is evidence that there was looting

1 that took place over a long period of time. In Ovnak, the situation was

2 the same, and we've seen pictures of houses destroyed, but no proof, we

3 say, that that occurred on the 8th of June, because that would have to be

4 the time frame that the Prosecution would have to show it occurred in,

5 because after that the 7th Brigade was gone, something the Prosecution

6 haven't challenged. So it would have to be in that limited time period

7 that that destruction and looting occurred. Thereafter, those persons

8 were not the subordinates of Mr. Kubura.

9 So with Ovnak again, it comes down to the problem that has always

10 haunted the Prosecution in this case: Who are the perpetrators? We don't

11 need names and addresses, but they have to show they are the subordinates

12 of Mr. Kubura.

13 Your Honours, if I may now move on to our concluding remarks. I

14 mentioned earlier the ICRC study on customary international law. They

15 have set out a series of rules that they say have become part of customary

16 law based on the practice of states and of the international community.

17 Rule 153 is the rule on command responsibility which mirrors the provision

18 in the Statute of the ICTY and the ICC.

19 In the commentary where commander/subordinate relationship is

20 addressed, the ICRC had the following to say: "The relationship between

21 the commander and the subordinate does not necessarily need to be a direct

22 de jure one. The international tribunals identified the actual possession

23 of control over the actions of subordinates, in the sense of the material

24 to prevent and punish the commission of crimes, is the crucial criterion."

25 So it's the actual possession of control over the actions of

1 subordinates. That is the touchstone for this entire case.

2 We would take it one step further to say it's the actual

3 possession of control in respect of the identified perpetrators when

4 you're looking at implementing this in the context of criminal trial.

5 We as the Defence accept that it is difficult to prove actual

6 possession of control and that circumstantial evidence is, therefore,

7 going to have to be invoked in many cases. Not only in this case but in

8 other cases before the international court. However, in our submission,

9 Article 7(3) is not a licence to lower the standard of proof. Even though

10 the accused didn't directly commit the crime, as it is alleged, of murder,

11 the charge is still one of murder, a very serious offence, and only, we

12 say, the clearest evidence and the clearest conclusions drawn upon that

13 evidence can be relied upon by Your Honours. In that way, we can honour

14 the very high standards of international criminal law which have been

15 founded in the judgement of Nuremberg where there were acquittals on this

16 very principle, and indeed before the ICTY.

17 Your Honours, in a colloquial sentence, we say the case against

18 Mr. Kubura is just not there. It has not been put together or proved

19 beyond reasonable doubt. However the Prosecution has tried to stretch and

20 squeeze and push together, the leaks and the holes remain. When you

21 unpick it bit by bit and you look at what is really underneath the

22 allegations, we say it's just not there. That is why we ask Your Honours

23 to let Mr. Kubura walk out of here a free man.

24 Thank you, Your Honours.

25 JUDGE ANTONETTI: [Interpretation] Thank you. Before we conclude

1 pursuant to Rule 87, I would like to ask the registrar to move into

2 private session.

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11 [Open session]

12 THE REGISTRAR: [Interpretation] We're back in open session,

13 Mr. President.

14 JUDGE ANTONETTI: [Interpretation] Now that we are back in open

15 session, the Trial Chamber notes that the procedure governed by Rule 87

16 has just been completed. The Prosecution has presented its closing

17 arguments and Defence counsel has presented its own closing arguments and

18 as a result, pursuant to Rule 87, I will be declaring that the case is now

19 closed and the Chamber will be deliberating in the near future.

20 I would like to thank everyone who has assisted in the

21 proceedings. I'd like to thank the registrar, in particular, who has

22 worked very hard to ensure that all the exhibits have the relevant

23 numbers. And he has also provided us with much assistance whenever there

24 were technical problems that had to be resolved.

25 I would also like to thank the usher and all her colleagues who

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1 have helped us with bringing witnesses into the courtroom and who have

2 also helped us in other ways.

3 I would not like to forget to mention all the assistants helping

4 the parties. They have contributed to facilitating the task of the

5 Prosecution and the Defence when documents were being presented.

6 Naturally, I would not wish to forget the interpreters, who have

7 been doing a very good job and they have been interpreting everything that

8 has been said in the course of these proceedings.

9 Having said that, and in accordance with the Rules, I hereby

10 declare that the hearing is closed. The Chamber shall withdraw now and

11 shall make its deliberations. You will be informed of the date on which

12 the judgement will be delivered, and we shall meet again at the hearing

13 when the judgement will be delivered. Thank you.

14 --- Whereupon the hearing adjourned

15 at 1.51 p.m. sine die

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