Tribunal Criminal Tribunal for the Former Yugoslavia

Page 1

1 Monday, 31 January 2005

2 [Prosecution Opening Statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.03 a.m.

6 JUDGE LIU: Call the case, please, Mr. Court Deputy.

7 THE REGISTRAR: Good morning, Your Honours. This is case number

8 IT-01-48-T, the Prosecutor versus Sefer Halilovic.

9 JUDGE LIU: Thank you very much.

10 Good morning, ladies and gentlemen. For the sake of the record,

11 could we have the appearances, please.

12 For the Prosecution.

13 MR. WEINER: Good morning, Your Honour. Philip Weiner for the

14 Prosecution. To my right is Manoj Sachdeva. Next is David Re. In front

15 of me is Sureta Chana. And to her right is Ana Vrljic, our case manager.

16 Attorney Chana will deliver the opening on behalf of the Office of the

17 Prosecutor.

18 JUDGE LIU: Thank you very much.

19 And for the Defence.

20 MR. MORRISSEY: May it please the Court, Peter Morrissey is my

21 name. I appear for Mr. Halilovic in this matter with Mr. Mettraux as

22 counsel, and present in court are our team members, Amir Cengic, and

23 Medina Delalic.

24 JUDGE LIU: Thank you very much.

25 Today is the start of this case with the opening statement

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1 delivered by the Prosecution which will last about two and a half hours

2 and during which we'll have a short break either after 70 minutes or

3 whenever the Prosecution feel it's the time.

4 Ms. Chana, are you ready for your opening statement?

5 MS. CHANA: Yes, Your Honours. But I would like to say that

6 perhaps it may take a little less than two and a half hours, Your Honours.

7 Perhaps one and a half to two hours, depending how fast we go.

8 JUDGE LIU: Of course. We are entirely in your hands. But we

9 have to finish it by 11.30.

10 MS. CHANA: May it please Your Honours.

11 JUDGE LIU: Yes, please.

12 MS. CHANA: The accused in this case, Sefer Halilovic, is charged

13 with one count of murder under Common Article 3 of the Geneva Conventions,

14 as punishable under Article 3 of the Statute of this Tribunal.

15 However, this single count of murder encompasses the killings of

16 63 people. The killings occurred in two separate incidents. Both

17 incidents occurred in South-Western Bosnia and Herzegovina in September of

18 1993. The first incident, which occurred here, in Grabovica, was on the

19 8th and 9th of September. 33 people were killed. The second incident, in

20 Uzdol, on the 14th of September occurred here. 30 people were killed.

21 The killings in both incidents were perpetrated by members of the

22 Armed Forces of Bosnia and Herzegovina, to which I shall refer to it by

23 its Bosnian acronym, the "ABiH." These these killings occurred during the

24 course of a military operation named "Neretva 93," which was at the time

25 being conducted by the ABiH. The main purpose of Operation Neretva 93 was

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1 to capture certain territory held by the Bosnian Croat forces, to which I

2 shall now refer to as the "HVO." Thus, the opposing forces in Operation

3 Neretva 93 were, on the one hand, the Bosnian Muslim armed forces, the

4 ABiH --

5 [Prosecution counsel confer]

6 MS. CHANA: Your Honour, I've just been told there's a technical

7 hitch. It's not being broadcasted outside on the screens.

8 Would the booth please ensure that it comes onto the screen

9 for --

10 I'm sorry, Your Honours.

11 As I was saying, Your Honours, the main purpose of Operation

12 Neretva 93 was to capture certain territory held by the Bosnian Croat

13 forces, and these are the HVO. So the opposing forces in Neretva 93 were,

14 on the one hand, the Bosnian Muslim forces, the ABiH, and, on the other

15 hand, the Bosnian Croat forces, the HVO. The victims of these killings by

16 members of the ABiH were all Bosnian Croats and were thus associated with

17 the opposing side in the conflict.

18 All of the 33 victims in the Grabovica incident were civilians,

19 including women, children, and the elderly. The youngest, Mladenka Zadro,

20 was a girl who was a few weeks shy of her fourth birthday. The oldest,

21 Marko Maric, was an 87-year-old man.

22 All of the 30 victims in the Uzdol incident were also civilians,

23 with the exception of one, who was a Croat soldier who had been taken

24 prisoner by the ABiH and who was thus taking no active part in the

25 hostilities at the time of his killing. The youngest victim was Stjepan

Page 4

1 Zelic, who was a 10-year-old boy. The oldest, Luca Zelenika, was an

2 87-year-old woman.

3 The Prosecution case is that the members of the ABiH who

4 perpetrated these crimes were at all material times under the effective

5 command and control of the accused.

6 The Prosecution will present evidence to show that immediately

7 before the Grabovica incident the accused had reason to know within the

8 meaning of Article 7(3) that subordinates would commit violence against

9 the Croat civilians in Grabovica and fail to take necessary and reasonable

10 measures to prevent the crimes; and after the crimes were committed, for

11 failing to take the necessary and reasonable measures to punish the

12 perpetrators. In the case of Uzdol, the accused is charged with criminal

13 responsibility for failing to take the necessary and reasonable measures

14 to punish his subordinates for the crimes committed by them.

15 As in all the cases that come before this Tribunal, all of the

16 events material to this indictment occurred against the backdrop of the

17 disintegration of the former Yugoslavia. The factual background of this

18 armed conflict in the former Yugoslavia has been set out in various

19 judgements of the Tribunal, and it is unnecessary for me now to cover this

20 ground again in any great detail. Indeed, strictly speaking, the broader

21 historical background of the conflict is not relevant to the specific

22 crimes charged in this indictment.

23 However, in order to give some context to the acts charged -

24 although Your Honours are no doubt familiar with them - it may be useful

25 to recall some of these events. I hope that these will be of assistance

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1 to Your Honours. Therefore, with Your Honours' permission, I will put the

2 events in the indictment in context.

3 The former Socialist Federal Republic of Yugoslavia comprised of

4 six republics and two autonomous regions. Various factors led to its

5 disintegration in the early 1990s, when four of the republics declared

6 their independence, namely Slovenia, Croatia, Bosnia and Herzegovina, and

7 Macedonia. The Republic of Croatia declared its independence on 25th June

8 1991. The Republic of Bosnia and Herzegovina was recognised by the

9 European Union on 7 April 1992. Both of these new states were admitted as

10 members of the United Nations by a decision of the General Assembly on

11 22nd May 1992.

12 The die was then cast for the scramble for territory which was to

13 follow between the Croats, Serbs, and the Muslims in Bosnia-Herzegovina.

14 Of all the former Yugoslav republics, Bosnia and Herzegovina was

15 ethnically the most mixed, the three main groups being the Bosnian

16 Muslims, the Bosnian Croats, and the Bosnian Serbs. There were, however,

17 divisions amongst them. In parts of its territory predominantly

18 inhabitanted by Serbs, Serb political structures had been established. On

19 9th January 1992, the Republic of the Serbian People of Bosnia and

20 Herzegovina had been proclaimed. Similarly, in areas predominantly

21 inhabited by Bosnian Croats, a Croatian Community of Herceg-Bosna, known

22 as the HZ HB, had been declared in November 1991 with its own political

23 structures.

24 An armed conflict ensued in that state. The army of Yugoslavia,

25 called the Yugoslav People's Army, or as it's known, the JNA, initially

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1 took military action. In April 1992, the HZ HB established its military

2 forces, known as the Croatian Defence Council, or the HVO. The following

3 month, in May 1992, the Republic of the Serbian People of Bosnia and

4 Herzegovina formed its own Bosnian Serb army, known as the VRS. This was

5 under the command of General Ratko Mladic. There continued Serb attacks

6 in different parts of Bosnia and Herzegovina.

7 For a period, the Croats and the Muslims organised a joint

8 defence against the Serb forces. In certain regions, this joint defence

9 was organised under the auspices of the HVO, which although a military

10 formation of the Croats, was during this period comprised of both Croats

11 and Muslims. However, eventually tensions emerged between the Croats and

12 the Muslims, and Muslims began either to leave or to be thrown out of

13 the HVO. Also at the beginning of the hostilities, a separate armed force

14 of Bosnia and Herzegovina, known as the ABiH, composed predominantly of

15 Muslims, was established. Although the Muslims and the Croats had

16 originally fought together against the Serbs, by April 1993 there was

17 full-scale fighting between the HVO and the ABiH.

18 At this point, the VRS - for the Serbs - and the HVO - for the

19 Croats - were seeking to secure control over parts of the territory of

20 Bosnia and Herzegovina. The HVO for its part was supported by the

21 Republic of Croatia and its army, the HV. Troops of the Croatian HV acted

22 in coordination with the HVO under the political direction of Croatian

23 political institutions. Secret discussions on the division of

24 Bosnia-Herzegovina between the Croats and the Serbs had been held as early

25 as March 1991 between Franjo Tudjman, the President of Croatia, and

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1 Slobodan Milosevic, the President of the FRY. The aim of the HVO was to

2 secure territory for the HZ HB and ultimately to integrate this territory

3 into Croatia or to English the HZ HB as an independent state. As the

4 territory claimed by the HVO was heavily non-Croat and Muslim support of

5 the HVO waned, there emerged a perceived necessity to ethnically cleanse

6 those territories of Muslim population or at a minimum to change the

7 demographic balance in favour of the Croats. These efforts of the HVO

8 were being resisted by the ABiH.

9 Would the booth please go on to Sanction now.

10 I apologise for that interruption, Your Honour.

11 The HZ HB was trying to set up their state and would like to have

12 it consist of 28 municipalities and small portions of three other

13 municipalities, including several in Central Bosnia. Mostar was

14 designated as its seat.

15 In this armed conflict between the HVO and the ABiH, the

16 municipality of Prozor was of great strategic importance to both sides.

17 Prozor is a municipality of 477 --

18 [B/C/S interpretation on the English Channel]

19 THE INTERPRETER: The interpreters apologise, Your Honour.

20 MS. CHANA: This is --

21 JUDGE LIU: Would you please repeat your last sentence.

22 MS. CHANA: It was the technicians, Your Honours. Has it been

23 corrected?

24 JUDGE LIU: I believe so.

25 THE REGISTRAR: It's been corrected now, Ms. Chana.

Page 8

1 MS. CHANA: Thank you very much.

2 Your Honours, I was saying Prozor is a municipality of 477 square

3 kilometres situated in the centre of Bosnia-Herzegovina. It is located

4 between the Western Herzegovinian heartland of the HZ HB, on the one hand,

5 and, on the other, the Central Bosnian municipalities which were also

6 projected to be part of the HZ HB.

7 The aim of establishing the HZ HB as a single territorial unity

8 and ultimately of establishing a greater Croatia depended on Prozor being

9 under HVO control. In particular, HVO control of the

10 Mostar-Jablanica-Prozor-Gornji Vakuf highway was essential if the HZ HB

11 was to be kept in one piece. Being on the southern side of a mountain

12 pass, it would have been next to impossible for the HVO to bypass Prozor

13 to get Central Bosnia. The Serbs and Muslims were blocking alternative

14 routes to Central Bosnia, and the HVO was not confident of its ability to

15 capture them. Prozor was thus the most expedient route. Therefore,

16 Prozor was to become the most important municipality for the

17 implementation of the HVO's plans.

18 For the Muslims, Prozor was equally important, as it was the only

19 passage to Central Bosnia. Mostar was then under siege by the HVO. The

20 very existence of the Bosnian state depended on the control of Prozor by

21 the Muslims.

22 The simple fact was that whoever controlled Prozor controlled

23 Central Bosnia. It was said at the time that the Bosnian abbreviation of

24 Bosnia-Herzegovina, "BiH," the "I" was Prozor. It linked the two.

25 As I indicated earlier, in the spring of 1992, the Croats and the

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1 Muslims were fighting as allies against the Serbs. In Prozor, the Croats

2 had joined the HVO and the Muslims had joined the Territorial Defence, or

3 the "TO," which later was to become the ABiH.

4 Sometime before 15th April 1992 a meeting was called in Prozor by

5 the HVO. Everyone was asked to attend. During this meeting, Josip Zgela,

6 from Croatia, unilaterally informed the assembled that upon the orders of

7 Zagreb, he had been appointed as the military and political leader of the

8 HVO in Prozor. He further informed them that as of immediate effect, he

9 would make all decisions as the only authority in all military and

10 political matters.

11 The Muslims in Prozor still allied to the Croats were anxious and

12 confused by this pronouncement but not as yet outright alarmed. It was

13 obvious to them that the HVO were trying to become dominant politically

14 and militarily. However, the Muslims in Prozor were isolated from

15 Sarajevo as communications were cut off. They therefore continued to

16 support the HVO in the defence of Prozor against the Serbs, while at the

17 same time resisting the HVO demands that they accept the HVO's sole

18 authority.

19 In June 1992, a front line was established between Prozor and

20 Kupres. The Serbs started to shell Prozor municipality. Immediately

21 after the establishment of these front lines, the Croats started to wear

22 on their uniforms badges of the Croatian army, the HV. It was becoming

23 clear that the alliance between the Croats and Muslims in Prozor was

24 fragile.

25 Then on 23rd October 1992, the HVO attacked the Muslims in

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1 Prozor. This was a major watershed in the development of the war between

2 the Croats and the Muslims. Why it happened as early as October 1992 is

3 open to speculation, as it was the first municipality where an HVO attack

4 against Muslims took place. The timing was curious, given that the

5 Muslims and Croats were still fighting along each other against the Serbs

6 in the front line of Kupres. The strategic importance of Prozor may

7 provide some explanation. It would be plausible to speculate that the HVO

8 were in a hurry to establish control as early as possible in order to

9 secure their corridor to Central Bosnia. It may -- it may also be that

10 the Croats saw a limited window of opportunity to capture Prozor before

11 peace was declared. Speed therefore became of the essence.

12 Whatever the reasons for the timing of the Croats' actions,

13 Prozor became the first casualty in the campaign for territorial control

14 by the Croats at the expense of the Muslims. Those Muslims who would not

15 voluntarily choose to be "good Croats" in an expanded Croatia including

16 Herceg-Bosna were going to be forced to leave.

17 On 4th January 1993, the Vance-Owen Plan was first proclaimed.

18 This plan was based on the premise of the division of Bosnia-Herzegovina

19 into ten provinces to be split among the three national factions, with

20 power being shared equally in the capital, Sarajevo. On 3rd April 1993,

21 the HZ HB leadership issued a "joint statement" by which it sought to take

22 control of all of the territory promised to it in the Vance-Owen Plan.

23 However, the Muslims did not submit willingly, and fighting broke out in

24 all areas where ABiH and HVO forces were in contact.

25 Following the failure of the Vance-Owen Plan and prior to the

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1 Vance-Stoltenberg Plan, the HVO leadership was determined to have

2 overwhelming Croat majorities in the territories they controlled before

3 any peace was concluded and felt that time was running out. That is why

4 the largest waves of expulsions in all of Herceg-Bosna took place in the

5 summer of 1993. It was also the time when the ABiH attacks against the

6 HVO were also at their peak. Full-scale war had broken out.

7 The autumn of 1993 thus became a critical time for military

8 operations in Bosnia-Herzegovina. The siege of Sarajevo by Bosnian Serb

9 forces continued. Meanwhile, the war between the formerly allied HVO and

10 ABiH forces in Central Bosnia-Herzegovina was becoming increasingly

11 bitter. An HV-HVO blockade of the town of Mostar had trapped some 50.000

12 Muslims in East Mostar and fighting in Mostar was particularly intense.

13 The resources of the ABiH were extremely stretched, and the very existence

14 of the fledgling Republic of Bosnia-Herzegovina was under threat.

15 Against this backdrop, Your Honours, Operation Neretva 93 was

16 conceived. However, before addressing the details of this operation, it

17 is necessary first to set out the background of the accused.

18 The accused, Sefer Halilovic, was born in Serbia on 6 January

19 1952. In 1971, at about the age of 23, he joined a military school.

20 After finishing, he became an officer in the JNA, where he remained for

21 some 15 years, eventually attaining the rank of major. In September 1991,

22 he left the JNA and returned to Bosnia and Herzegovina, where he joined

23 the Patriotic League and planned the defence of the state.

24 In May 1992, he was appointed as the Commander of the TO Staff.

25 From July 1992, following the evolution of the TO into the ABiH, he was

Page 12

1 Chief of the General Staff of the ABiH, making him the supreme commander

2 of the ABiH forces. However, about a year later, on 8th June 1993, a new

3 position in the ABiH was created, called "Commander of the Supreme Command

4 Staff." This new position was filled by an officer named Rasim Delic,

5 thereby making Rasim Delic the supreme commander of the ABiH and,

6 effectively, the commander of the accused.

7 The creation of this new position by President Izetbegovic thus

8 in reality constituted a demotion of the accused, a fact that the accused

9 greatly resented. There was a certain tension between Rasim Delic and the

10 accused, and as will be seen, after the appointment of Delic as the

11 supreme commander of the ABiH, some officers and troops retained a

12 particular loyalty to the accused.

13 Such was the relationship between the accused and Delic at the

14 time that Operation Neretva was conceived at a strategy meeting held in

15 Zenica on 21st to 22nd August of 1993. This strategy meeting was attended

16 by most of the senior ABiH commanders, including Delic and the accused.

17 However, there were two notable absentees from this meeting: The two

18 other deputy commanders.

19 From 18th July 1993, in addition to the post of Chief of the

20 Supreme Command Staff, the accused also held a post of Deputy Commander of

21 the Supreme Command Staff. This was one of three such deputy commander

22 positions in the ABiH. It is significant that neither of the other two

23 deputy commanders attended the strategy meeting. They had nothing to do

24 with this operation. This was very much the accused's show.

25 The accused was a main participant in this meeting. It was the

Page 13

1 accused who presented at the meeting a plan to launch a military offensive

2 on the HVO in the area. The accused also helped to convince the meeting

3 that a military operation was necessary to avoid the loss of Mostar to the

4 Bosnian Croat forces. He also submitted proposals for future ABiH combat

5 actions and solutions to the current military problems facing the ABiH.

6 At this meeting in Zenica, several things were decided:

7 First, it was decided to launch the military Operation

8 Neretva 93. One of the main objectives of the operation was to break the

9 long-running blockade of Eastern Mostar, to provide assistance to Muslims

10 under siege there by the HVO. This involved pushing forward on different

11 fronts from Jablanica, Gornji Vakuf, and Prozor areas and opening the main

12 route between Mostar and the territory in Central Bosnia controlled by the

13 ABiH. Enver Buza, who was the commander of the Prozor Independent

14 Battalion, was to command a part of this operation. The village of Uzdol

15 was along this line of attack.

16 Your Honours will see that there's a map of the Neretva Valley in

17 front of Your Honours. I hope you can see -- you can read the markings on

18 it. And that was the general direction of the -- of the assault.

19 Secondly, it was decided at this meeting to form a

20 so-called "Inspection team," to be headed by the accused, that would go to

21 Herzegovina to command and coordinate the operation.

22 Thirdly, it was decided to subordinate certain military units to

23 the accused.

24 About a week later, on 30th August 1993, Rasim Delic issued an

25 order giving effect to the decisions taken at the Zenica meeting.

Page 14

1 We can go to Sanction now, Your Honour.

2 The Prosecution will be tendering this order in evidence.

3 As Your Honours will observe, the order creates the inspection

4 team and made the accused the team -- leader of this team.

5 JUDGE LIU: Yes, Mr. Morrissey.

6 MR. MORRISSEY: Sorry to interrupt. But, Your Honours, we do not

7 have Sanction or the video on our screen at this moment. It's a technical

8 problem.


10 [Trial Chamber and registrar confer]

11 MR. MORRISSEY: Yes. Thank you. I apologise for the

12 interruption.

13 JUDGE LIU: Well, since this is the first day for the e-court

14 trial, there must be some problems, you know.

15 Yes, you may proceed.

16 MS. CHANA: Thank you, Your Honour.

17 JUDGE LIU: Ms. Chana.

18 MS. CHANA: As Your Honours will observe from the order, the

19 order creates the inspection team and makes the accused its leader. The

20 order states that the role of the inspection team was to "coordinate

21 affairs and tasks in the area of responsibility of the 4th and 6th Corps."

22 The order also states that the team's assignments included the

23 following: "To direct combat operations" and "to assess the potential of

24 manpower and material and use them accordingly." The order indicates that

25 in case of "Radical solutions or proposals," the accused was to consult

Page 15

1 Commander Delic; otherwise, the order specifies that the accused was

2 required only to inform Commander Delic of these orders after the accused

3 had issued them.

4 JUDGE LIU: Well, excuse me for the interruption. Could we have

5 that part blown up? Because the words are too small on my screen, you

6 know.

7 MS. CHANA: Yes, Your Honour.

8 JUDGE LIU: I hardly could see anything.

9 Thank you. It's much better.

10 MS. CHANA: Is that better, Your Honours?

11 JUDGE LIU: Yes.

12 MS. CHANA: If you're looking at the order, Your Honour.

13 So, therefore, the accused had to consult Commander Delic;

14 otherwise, the order specifies that the accused was required only to

15 inform Commander Delic of these orders after the accused had issued them.

16 Therefore, Your Honours, this order authorised the accused by Delic to

17 have power to issue orders on the spot and to solve problems.

18 Although the team established by this order was called an

19 inspection team, it had authority that exceeded mere preparation and

20 conduct of the operation. It had a command function. This order and

21 other evidence that the Prosecution will present at trial will establish

22 that Commander Delic delegated to the accused full command authority over

23 Operation Neretva 93 and full authority over the troops to be deployed in

24 that operation. Furthermore, the Prosecution will prove that the accused

25 accepted and exercised this authority and did in fact command

Page 16

1 Operation Neretva 93. The accused himself admitted his command role in a

2 statement that he gave to the Office of the Prosecutor, which we will be

3 putting into evidence. In this statement, he said: "I am the one who

4 assumed command of the operation."

5 Your Honour, Sanction, please.

6 "I am the one who assumed command of the operation. My

7 headquarters were set up in Jablanica in the administration building of

8 the hydroelectric plant. But I moved about too, and was also near

9 Gornji Vakuf and Dugo Polje. From these points, I am the one who gave the

10 orders to unleash the attacks along the lines which had been determined

11 previously when the plan was drafted."

12 In this respect, it is important also to recall that the accused

13 had been the supreme commander of the ABiH until Rasim Delic was appointed

14 to his newly created position shortly before Operation Neretva 93. The

15 accused was therefore amply capable of commanding such an operation. More

16 importantly, the accused had the gravitas as such a senior officer to

17 ensure respect for his command authority and to secure the obedience of

18 his subordinates. It was also a very important military operation for the

19 accused personally. With its success, he would have been a hero. He

20 would have restored his reputation and perhaps regained his top position

21 in the army.

22 The evidence will show that during the course of

23 Operation Neretva 93, the accused did indeed demonstrate effective command

24 and control by issuing orders, instructions, and directives to the units,

25 and by ensuring their implementation, he planned and was instrumental in

Page 17

1 the implementation of the military operations carried out by the units

2 which took part in the Neretva 93 operation.

3 Accordingly, under international humanitarian law, the accused

4 clearly had the responsibility of a superior enshrined in Article 7(3) of

5 the Tribunal's Statute to prevent the commission of crimes by his

6 subordinates where he had noticed that such crimes were about to be

7 committed, and to punish the commission of crimes by his subordinates

8 where he had notice that such crimes had been committed.

9 Upon assuming command for the operation, the inspection team

10 established the forward command post in the Jablanica Hydroelectric Power

11 Station, from where the operation was to be commanded and coordinated.

12 This forward command post was known by its Bosnian acronym, the "IKM."

13 Excuse me, Your Honour.

14 Your Honours, then he -- he then issued orders for the

15 redeployment of various troops under his command. He also requested

16 additional troops from other units of the ABiH that were not under his

17 command to be put at his disposal for the purposes of the operation.

18 He made a specific request to the commander of the 1st Corps,

19 Vahid Karavelic, to release certain troops from the 1st Corps to

20 participate in the operation; namely, troops from the 2nd Independent

21 Battalion, the 9th Motorised Brigade, and the 10th Mountain Brigade. It

22 was troops from these -- last two of these units, which I will

23 subsequently refer to as the 9th Brigade and the 10th Brigade. These

24 troops were the central actors in the events which followed.

25 Between the 4th and 5th of December [sic] of 1993, Delic visited

Page 18

1 the area and received a briefing from the accused at the IKM on lines of

2 attack that he planned for the operation.

3 Your Honours will see in front of you Operation Neretva. This is

4 the map in black and white, which has been signed by the accused on the

5 bottom right-hand side and signed on the top left-hand side by Commander

6 Delic. And the line of attacks, Your Honours, are the arrows as to -- the

7 various lines of attacks.

8 This was the last time Delic was in the theatre of operation

9 leaving the accused to implement the plan in all its aspects. This meant

10 that the accused was the sole and most senior commander in the theatre

11 with full responsibility and control over the area, all military units,

12 and all the resources in the Neretva Valley dedicated to the operation.

13 Having all the authority for the implementation of the operation,

14 on 6th September 1993 he continued to implement the plan by subordinating

15 the 9th and 10th Brigades and the 2nd Independent Battalion under the

16 command of Zulfikar Alispago, which was generally known as "Zulfikar's

17 Unit." This unit was part of an operations group which on 7th September

18 1993 was assigned to the IKM for its tasking directly under the command of

19 the accused.

20 The evidence will show that the accused personally requested that

21 troops from the 9th and 10th Brigades be made available to participant in

22 the operation. The accused had a particularly close relationship with

23 Ramiz Delalic, known as Celo, who was the deputy commander of the

24 9th Brigade. As I have mentioned, following the accused's demotion within

25 the ABiH in June 1993, some members of the ABiH retained a special loyalty

Page 19

1 to him. Celo was one of those, and he still considered the accused to be

2 in effect the true commander of the ABiH and obeyed all orders from him.

3 Thus, the accused had no difficulty in ensuring compliance with

4 his orders by Celo, even if these units were difficult for other

5 commanders to control. For the evidence will also show that both of these

6 units, the 9th and 10th Brigades, had a notorious reputation for

7 criminality and uncontrolabilty and that was well known to the accused.

8 In Sarajevo, these two brigades had robbed and plundered and were

9 involved in all sorts of criminal activity. They had forced civilians to

10 dig trenches on the front lines. This often entailed such civilians being

11 killed, as they were exposed to the Serb sniper and artillery fire. The

12 accused was very aware of the reputation of these troops and of their

13 crimes. They were notorious. Everyone in Sarajevo feared them. It was a

14 difficult operation, and the accused brought the worst from Sarajevo to

15 fight. They were good fighters but known criminals. He considered them

16 to be "assault units."

17 These units were also a matter of great concern to the ABiH

18 commanders. The then-Minister of the Interior, Bakir Alispaic, had asked

19 the accused to bring them under control. From July 1993 through October

20 1993, that is, during the period in which the events relevant to this

21 indictment occurred, various military, police, and political authorities

22 had joined forces to address the problem of these two brigades. Several

23 months after the crimes to which this indictment relates, it required a

24 military operation to bring them under control. This operation,

25 called "Operation Trebevic," resulted in the arrest of members of these

Page 20

1 two brigades following a shoot-out, in which there were a number of

2 casualties. The commander of the 10th Brigade was killed in this

3 operation.

4 Your Honours, given that the accused had knowledge of the

5 criminal propensity of these two brigades, he was necessarily aware of the

6 likelihood that they might commit crimes in Grabovica. His duty under

7 Article 7(3) to prevent the commission of crimes by his subordinates

8 required him to be especially cautious in their deployment and to take all

9 appropriate measures.

10 Such measures might have been included issuing appropriate orders

11 to the subordinate commanders, ensuring that they were versed in their

12 obligation under international humanitarian law, using the military police

13 and military security services to oversee the conduct of these units,

14 ensuring that they were kept away from civilians, and in particular Croat

15 civilians, ensuring that they were properly accommodated - if necessary,

16 in garrison or guarded accommodation - and, in any event, away from

17 civilians. Also, using his personal presence to communicate orders in

18 relation to the observance of international humanitarian law. The accused

19 was a seasoned military man.

20 As will become apparent, he exercised no caution at all,

21 notwithstanding that he personally persuaded them to participate --

22 Excuse me, Your Honour. A bit of a cold, Your Honour.

23 As I was saying, Your Honours, as it will become apparent, he

24 exercised no caution whatsoever, notwithstanding the fact that he

25 personally persuaded them to participate and then also supervised their

Page 21

1 deployment from Sarajevo to the field in Herzegovina on 6th and 7th

2 September 1993.

3 In preparation for Operation Neretva 93, the various military

4 units which were to participate had to congregate in a Muslim-controlled

5 area. A decision was taken to billet members of the 9th and 10th Brigades

6 in the village of Grabovica, which was some 11 to 12 kilometres away from

7 the IKM in Jablanica. Grabovica was under the control of the ABiH, having

8 been captured by it in May 1993.

9 This, Your Honours, leads me to the first of the incidents to

10 which this indictment relates, the killings of the 33 civilians in

11 Grabovica.

12 As I have said, the village of Grabovica is about 12 kilometres

13 from Jablanica. It is situated on the Neretva River in Central Bosnia.

14 It's on the main road from Sarajevo to Mostar.

15 We'll go to Sanction now, Your Honours.

16 As Your Honours can observe, it lies in a valley through which a

17 river flows, with the land rising sharply in either side of the valley.

18 Prior to the arrival of the conflict in this area, the population

19 of the village was primarily Croat. Following the capture of the village

20 by the ABiH in 1993, May, some of the local Croat population had stayed in

21 their homes. They primarily resided on one bank of the river. On the

22 other bank, there were some Croat civilians, but the majority were Muslim

23 refugees from other parts of Bosnia and Herzegovina, some of whom were

24 former camp detainees. Because the Croat population of the village was

25 for the most part quite aged, there was a measure of coexistence between

Page 22

1 the Muslims and the Croats in the village. However, given the armed

2 conflict between the Muslims and Croats being waged at the time, it would

3 have been obvious to anyone that this coexistence was fragile.

4 It was into this situation that the decision was taken to billet

5 the notorious 9th and 10th Brigades. It was decided not only that these

6 troops would be billeted in Grabovica but that they would be billeted in

7 the homes of Croat civilians, and this is prior to their battle with Croat

8 soldiers.

9 The evidence will show that there was another place in Grabovica

10 where the troops could have been accommodated, away from civilians. There

11 was a possible accommodation in Diva Grabovica, which was five to eight

12 kilometres from Grabovica. However, despite the existence of this

13 possible alternative, the decision was taken to accommodate the soldiers

14 in the homes of the Croat civilians.

15 The Prosecution case will be that the accused was aware of the

16 decision. The accused in his suspect interview to the OTP demonstrates

17 that he was aware and requested for the Sarajevo troops' accommodation

18 when he said:

19 Your Honours, Sanction.

20 "I issued orders to the commander of the Zulfikar unit and

21 Vehbija Karic's team, told them to wait for the Sarajevo team and to

22 provide the accommodation when they arrived."

23 The evidence will further show that the accused himself

24 recognised the folly of billeting the soldiers with Croat civilians. The

25 Prosecution will present evidence that the accused himself in a newspaper

Page 23

1 interview in 1999 said: "They knew that brothers and sons of those

2 Grabovica people were serving in the HVO, so they could have been seen

3 what would happen." This fact was known to the accused when the decision

4 to billet these troops in the homes -- in the homes of Croat civilians was

5 made.

6 Your Honours, the precise dates will emerge from the evidence,

7 but a unit of the 9th Brigade, under the command of Ramiz Delalic, Celo,

8 was sent to be billeted in Grabovica on about 7th September 1993. By that

9 time, a small group of the 2nd Independent Battalion was already billeted

10 there.

11 The evidence will show that some soldiers complained to Vehbija

12 Karic, an inspection team member, that some Croat residents were not

13 allowing them into their homes. Karic, in the presence of the accused, in

14 gesture and in words, told the soldiers to deal with them summarily and to

15 throw them into the Neretva River, any Croat who refused to accommodate

16 them. The accused was now under no doubt that violence by the soldiers

17 was a real possibility. He did not countermand the Karic remarks.

18 Neither did he take steps to ensure the safety of the civilians. Neither

19 did he make alternative arrangements for the soldiers or the civilians.

20 Your Honours, the law requires a commander to take the "Necessary

21 and reasonable measures" to prevent the commission of crimes by

22 subordinates. This was a situation in which the accused had knowledge of

23 the circumstances of the likely commission of crimes by his subordinates.

24 Had he at that stage ordered - which was within his power to do - that the

25 soldiers be billeted elsewhere, this action on his part would no doubt

Page 24

1 have prevented the murders of Croat civilians which ensued. He failed to

2 do so.

3 The Prosecution will bring evidence of the killings that were

4 committed in Grabovica by the accused's subordinate soldiers, which began

5 on 8 September and continued into the next day.

6 It is the Prosecution case that the accused had notice of the

7 crimes on the evening of 8 September. In an interview that the accused

8 gave to the Office of the Prosecutor, it is apparent that the killings at

9 Grabovica were still in progress when he first heard about them.

10 According to the accused's statement, Namik Dzankovic told him that

11 murders of civilians had just been committed in Grabovica. The accused

12 said that he wanted to go there immediately but that he had been informed

13 that there was still shooting in the sector and he must not go there.

14 In his statement to the State Security Services in November 1993,

15 he also stated that it was night when he first heard about the Grabovica

16 meetings -- sorry, shootings.

17 Sanction, Your Honour.

18 He says: "On that critical day, I returned to Jablanica and one

19 of Zuka's closest associates told me that Zuka had left for Grabovica with

20 Celo. I insisted on leaving for Grabovica immediately, but Zuka's men

21 warned me that there was a lot of uncontrolled shooting in the village and

22 advised me to wait for Zuka and Celo to come back and inform me about

23 everything. I accepted this. And after about an hour Zuka and Celo

24 returned. I would like to mention that both Zuka and Celo give the

25 impression of being very frightened and, consequently, they provided very

Page 25

1 little information. Although I insisted they should tell me more details,

2 they did not, saying it was already dark and they simply knew nothing

3 more. They also told me that there was uncontrolled shooting in Grabovica

4 and that going there, going to the village for any reason was very risky

5 business."

6 Thus, during the course of these killings, the accused by his own

7 admission had notice that the killings were in progress. It was his duty

8 to treat this as a situation of emergency and to take immediately whatever

9 action was necessary to put an effective end to the killings and to

10 eliminate a further threat and danger to the surviving civilians.

11 There were many possible courses of action open to him to put an

12 end to the violence. Most obviously, he should have ordered his

13 subordinates, including the commanders of the units billeted in the

14 village of Grabovica, to take immediate steps to ensure that their troops

15 in Grabovica were brought under control and prevented from killing or

16 harming the surviving civilians. As the commander of the operation, he

17 could have mobilised members of the military police to secure the village

18 of Grabovica, such as the 6th Corps military police companies which were

19 located in Jablanica and Konjic or the Neretvica brigade military police

20 company in Pasovici. He could have mobilised other army units to take

21 immediate steps to protect the remaining civilians. He could have

22 authorised the use of force against any soldier who resisted the measures.

23 At the minimum, he should have ensured that medical personnel were sent to

24 the village to help and treat the wounded.

25 He was also duty-bound to order the immediate arrest and

Page 26

1 detention of the suspects and to immediately initiate an investigation.

2 Furthermore, given the loyalty of Celo and of the 9th Brigade to him

3 personally, his personal intervention or presence on the scene would have

4 had a stabilising effect. The accused took none of these steps. What did

5 he do? The Prosecution case is that he did no more than tell Namik

6 Dzankovic to write a report on the incident and to seek help from his

7 headquarters. He never followed up on this request.

8 As a result of his inaction, the murders continued into the

9 following day by the end of which, 33 Croat civilians had been killed.

10 The Trial Chamber will hear about Pero Maric and his wife,

11 Dragica. They were an old couple living in Grabovica. Some soldiers of

12 the 9th Motorised Brigade broke down their door and entered their house.

13 Dragica was sick and unable to leave her bedroom. The soldiers had food

14 and drinks; they sat outside around a table and ordered the old man, Pero,

15 to join them. Another soldier, Mustafa Hota, then showed up carrying an

16 automatic rifle. He stopped next to Pero, raised the rifle, and shot him

17 in the head.

18 As the old man fell to the ground, he shot him again in his chest.

19 His invalid wife cried in her room, knowing her husband had been shot.

20 For hours she then lay in bed, hearing the soldiers drinking and eating

21 outside her house, not knowing when the soldiers will come to kill her.

22 Eventually, it was middle of the night, Mustafa Hota did enter her house

23 and he shot her as she screamed for mercy.

24 Your Honours, Mustafa Hota has since confessed and has been

25 convicted of these murders. He is currently serving his sentence in jail

Page 27

1 in Bosnia.

2 The Trial Chamber will also hear about two young boys, (redacted)

3 (redacted), who lost all five members of their family in the space of two

4 days. The boys were at their home in Grabovica when three soldiers came

5 to their house and enquired about the livestock they had. Their father

6 compliantly led the soldiers to the barn. Yet despite this cooperation,

7 the soldiers shot the boys' father, grandfather, and grandmother. Another

8 soldier, Enes Sakrak, saw the boys' mother and their sister - a little

9 girl who was only four years old - and shot them both. The boys ran away,

10 and when they returned later that day, they found the dead bodies of all

11 five members of their family.

12 The Prosecution will present to the Trial Chamber other examples

13 of the killings of civilians in Grabovica. The Prosecution will show how

14 the bodies of these murdered victims were floating in the Neretva River

15 the next day. The accused, who was the military commander responsible for

16 the troops in the theatre and who -- and who knew of the murders, was

17 under a legal obligation to ensure that his subordinates who perpetrated

18 these crimes were punished. However, the accused did not do this.

19 The Prosecution will show that the bodies of the murdered

20 civilians were at first hidden and then secretly buried by members of the

21 9th and 10th Brigades and Zuka's unit. The accused was in the area and

22 visited the village and could not have failed to see the bodies of the

23 victims which were strewn all around.

24 By 10 September 1993, news of the murders had spread. The

25 then-Minister of the Interior, Bakir Alispaic, who was in the area at the

Page 28

1 time, suggested to the accused that due to the murders in Grabovica,

2 Operation Neretva should be put on hold to give time for an investigation

3 to be carried out. The accused, although accepting the responsibility for

4 a military investigation, did not initiate any investigations into the

5 murders other than to ask an inexperienced assistant to prepare a report

6 on the crimes.

7 The person whom the accused assigned to gather further

8 information about the murders in Grabovica, Namik Dzankovic, was a member

9 of the inspection team in charge of counter-intelligence for the operation

10 and was not experienced to conduct a major criminal investigation.

11 Furthermore, Dzankovic never initiated an investigation into the murders

12 in Grabovica and the accused never followed the matter up with him.

13 The accused admitted to this fact in a statement to the Security

14 Services in November 1993 when he said "Dzankovic did not inform me any

15 more about the results of the investigation, nor did I receive such

16 information from anyone else." Nor did the accused take any other steps

17 to see that his subordinates who perpetrated these crimes were punished.

18 Indeed, at the same time he prohibited the local civilian police from

19 interfering with the military during the proposed investigation, which

20 never took place.

21 In the meantime, Operation Neretva was scheduled to go ahead on

22 12 September 1993. The accused received an order from Commander Delic to

23 reconsider the scope and scale of the operation, to investigate the

24 genocide of civilians, to isolate the perpetrators, and to take energetic

25 measures. In addition, Commander Delic ordered the accused to "do

Page 29

1 everything to prevent such actions," to send the deputy commander of the

2 9th Brigade back to Sarajevo and to report on the measures he had taken.

3 The accused did not comply with this order. Evidence will be

4 presented that he contemptuously ripped it up. He made no report to his

5 superior officer, nor did he send the commander of the 9th Brigade back to

6 Sarajevo.

7 Your Honours, would this be a convenient time to break? I'm not

8 sure whether ...

9 JUDGE LIU: Yes. Let's take a break. And it will be about 20

10 minutes.

11 MS. CHANA: 20 minutes.

12 JUDGE LIU: We'll resume at 25 minutes to 11.00.

13 MS. CHANA: Thank you, Your Honours.

14 JUDGE LIU: Thank you.

15 --- Recess taken at 10.13 a.m.

16 --- On resuming at 10.42 a.m.

17 JUDGE LIU: Well, I apologise for the delay.

18 Ms. Chana, are you ready to proceed?

19 MS. CHANA: Yes. Thank you, Your Honours.

20 JUDGE LIU: Yes, please.

21 MS. CHANA: Your Honour, before the break, I was talking about

22 the 12th September 1993 order issued by Delic where he asked the accused

23 to reconsider the scope of the operation, and I stated that he

24 contemptuously ripped it up and did nothing of the sort.

25 On 13 September 1993, with full knowledge of the murders of the

Page 30

1 Croat civilians in Grabovica and despite having been asked by Commander

2 Delic and the Minister of the Interior to re-evaluate the continuation of

3 the operation in light of those murders, the accused, as commander of

4 Operation Neretva, ordered the Prozor Independent Battalion of the ABiH to

5 continue with the offensive as planned. He in fact sent a member of the

6 inspection team to ensure compliance. The accused ordered the troops to

7 attack and destroy the HVO base in the Bosnian Croat village of Uzdol.

8 Uzdol consists of a number of small hamlets in particularly hilly terrain

9 in the Prozor municipality. It was then almost exclusively inhabited by

10 Croat civilians.

11 The offensive in Uzdol was to be launched by the Prozor

12 Independent Battalion under the command of the Enver Buza. The accused at

13 the time was aware of two important considerations which should have made

14 him aware that there was a possibility of unlawful attacks by his

15 subordinates against civilians and for which he really ought to have taken

16 precautionary measures.

17 Your Honours, although this may at first blush appear to be

18 evidence to prevent crimes in Uzdol, for which the accused is not charged,

19 this knowledge of propensity for violence of the Prozor Independent

20 Battalion on the part of the accused will become relevant to prove failure

21 to punish, as will become evident a little later in my address.

22 This awareness was predicated on: Firstly, the accused was aware

23 there were civilians in the village of Uzdol; and, secondly, he was aware

24 that the troops of the Prozor Independent Battalion had feelings of strong

25 hatred for the Croats. This hatred was due to previous hostilities

Page 31

1 between the ABiH and the HVO in Prozor, in which the ABiH soldiers had

2 suffered a crushing defeat. The soldiers of the Prozor Independent

3 Battalion had been used as human shields by the HVO and many had been

4 expelled from Prozor or had been interned in HVO camps. They had suffered

5 greatly and had strong feelings of revenge. The commander of the

6 battalion called it "boiling blood."

7 The accused, being a seasoned army man, should have been alive to

8 the dangers of unleashing these kind of troops into a theatre of war where

9 there were Croat civilians. He had a duty to ensure that during the

10 military operation the military police accompanied the military to ensure

11 the security of the civilians. He had to be prepared in the event that

12 any of these subordinates unlawfully attacked civilians, given this

13 hatred, to punish the perpetrators.

14 We'll go to Sanction now, Your Honours.

15 The accused addressed the Prozor Independent Battalion no less

16 than five times before and during the operation and at no time did he

17 address the issue of compliance with the laws of war or the consequences

18 of their breach.

19 On 14 September 1993, the Prozor Independent Battalion launched

20 their offensive on the HVO base in Uzdol but were repelled by HVO forces

21 and were forced to withdraw from the territory. Some soldiers of the

22 Prozor Independent Battalion murdered 29 Croat civilians.

23 The murdered Croat civilians were not combatants or taking part

24 in hostilities, nor were these murders committed as a result of combat

25 between the two opposing forces. The civilians were either in their beds

Page 32

1 or were attempting to flee from the territory in fear of the fighting.

2 The same soldiers also murdered an HVO soldier who had been captured by

3 the ABiH.

4 We'll go to Sanction now, Your Honour.

5 This video was taken the same day of the killings.

6 Jadranka Zelenika. This is a little girl.

7 This is Ruza Zelenika, aged 62 years.

8 This is Stjepan Zelic, aged 10.

9 This is Marija Zelic, aged 13.

10 This is Ruza Zelic, aged 49.

11 This is Lucija Rajic, aged 60.

12 This is Stanko Rajic, 66 years old.

13 This is Sima Rajic, 79 years old.

14 This is Mijo Rajic, 69 years old.

15 This is Ivka Rajic, 72 years old.

16 This is Kata Perkovic, 70 years old.

17 This is Mato Ljubic, 70 years old.

18 Interpreters, could I please have the volume.

19 THE INTERPRETER: [Voiceover] I fell over there. I don't know

20 what happened to me. And someone was approaching me. But I don't know

21 what happened. I tumbled down the hill.

22 Were there any deaths?

23 Yes. Yes.

24 MS. CHANA: Your Honours, that last witness was -- the last clip

25 was a woman called Ivka Stojanovic, who will be our witness.

Page 33

1 Simun Andjelinovic, head of the Department of Pathology, Forensic

2 medicine and Scatology in Firule Hospital in Split, Croatia, was in charge

3 of the autopsies that were subsequently held on Uzdol victims. The

4 autopsy reports that the Prosecution will tender as exhibits will

5 demonstrate that all the civilians were killed by bullet wounds.

6 The accused initiated no investigations into these murders,

7 despite admitting that he heard about the killings a few days later on

8 17th or 18th September 1993 and despite admitting in an interview with the

9 Office of the Prosecutor that an investigation had been merited.

10 On 20th September 1993, the accused did in fact issue a report on

11 the inspection team's mission in Herzegovina. This report made some 20

12 recommendations. These recommendations dealt with matters such as the

13 redeployment of military officers. It recommended that certain officers

14 be removed and/or prosecuted for collaboration with the HZ HB. The report

15 also recommended that Enver Buza, the commander of the Prozor Independent

16 Battalion, be called to account and transferred to a new post for what the

17 accused perceived to be a dereliction of his duty in delaying the entry

18 into battle of troops in Uzdol on the 13th September 1993. However,

19 nowhere in the entire five-page detailed report is there a single mention

20 of the murders in Grabovica or Uzdol.

21 Indeed, in a radio interview broadcast on 16th September, a few

22 days after the Uzdol incident, the accused had this to say. We are now

23 playing a radio programme and there's a transcript of the interview.

24 We'll go to Sanction now, please, Your Honours.

25 [Radio interview played]

Page 34

1 MS. CHANA: Your Honours, the massacres in Grabovica and Uzdol

2 were a remarkable omission.

3 Save for a trip to Sarajevo in September 1993, the accused

4 remained as commander of the operation in the area until 8th October 1993

5 and was able to initiate an investigation into the killings in Uzdol and

6 have the perpetrators punished. As the commander of the operation, he had

7 the authority, ability, and resources to take immediate action and

8 initiate investigations. He remained in the ABiH until 1st November 1993.

9 The accused was not limited by time but by intention.

10 Even on the accused's own admission in a statement given to the

11 Office of the Prosecutor, he learned of the killings in Uzdol at the

12 latest a few days after the event. In this statement, he claimed that he

13 only heard about "crimes" (with no other precision as to exactly what type

14 of crimes were involved), and also claimed that some people had asserted

15 that news of the crimes was merely Croatian propaganda.

16 However, in an interview with the Office of the Prosecutor, the

17 accused also acknowledged that he did not genuinely believe the claims

18 that nothing had happened. Given, as he said, that among the troops of

19 the Prozor Battalion he felt - and I quote - "That there was an electric

20 tension causing hatred and that one could somehow feel that there was

21 something wrong. Something's in the air."

22 I now go back to my earlier point, Your Honours, where I said

23 that the accused was aware that the Prozor Independent Battalion had

24 strong feelings of hatred and he knew that in all likelihood that these

25 stories were not mere propaganda and they were capable of belief. It is

Page 35

1 therefore clear that the accused had alarming information that put him on

2 notice of the commission of crimes in Uzdol. He had a duty to act on this

3 alarming information immediately, especially given that a massacre had

4 just been committed by the ABiH troops only a few days ago.

5 However, the accused's response to this information, according to

6 him, was to report the incident orally to Delic. Mentioning a matter

7 orally to Delic certainly does not amount to the taking of any formal

8 action. Neither does it relieve the accused from his own individual

9 responsibility to take action. When the accused himself wrote a report on

10 Operation Neretva 93, that I alluded to earlier, he did not even mention

11 the incident. In his statement, the accused says that to his knowledge,

12 Delic took no steps to ask that an official investigation into the events

13 at Uzdol be opened. The accused himself clearly made no real effort at

14 all to ensure that the crimes committed in Uzdol were investigated and

15 punished.

16 Your Honours, the principle of superior responsibility is set out

17 in Article 7(3) of the Tribunal's Statute. It states that: "A superior

18 who has reason to know that the subordinate is about to commit crimes or

19 has done so must take the 'necessary and reasonable measures' to prevent

20 such acts or to punish the perpetrators thereof." It is the Prosecution

21 case that the accused did not take reasonable measures in relation to the

22 Grabovica and Uzdol incidents and, indeed, that he effectively did nothing

23 in response to those incidents, despite having relevant knowledge.

24 It is not as though ignorance of his legal duty as a superior,

25 even if ignorance of the law were an excuse - which the Prosecution

Page 36

1 denies - the accused was a career military commander, who had been trained

2 professionally as a senior and who had risen through the ranks to the most

3 senior levels of military command.

4 It is a principle of fundamental importance to international

5 humanitarian law that a commander is responsible for the behaviour of his

6 troops and ensuring that they behave in accordance with the law of armed

7 conflict. That principle of superior responsibility has been recognised

8 as equally applicable in both international and non-international armed

9 conflicts.

10 An armed military force is a powerful and dangerous thing. It

11 must at all times be kept under firm discipline and control. If

12 commanders do not take steps to prevent the commission of war crimes by

13 their soldiers where the commander has reason to know that they're about

14 to be committed, the result may be devastating. If commanders do not take

15 steps to punish war crimes that have been committed by their subordinates,

16 the consequences may similarly be grave.

17 If war crimes are not immediately and effectively investigated by

18 commanders of the perpetrators, the individual soldier or soldiers who

19 perpetrated the crime may never be identified. Furthermore, if immediate

20 firm action is not taken by commanders in response to the commission of

21 war crimes by subordinates, this will encourage or condone the commission

22 of similar crimes by other subordinates.

23 It will be seen that following the absence of any effective

24 action by the accused in response to the Grabovica incident, a further 30

25 people were killed shortly afterwards in the Uzdol incident.

Page 37

1 Under the wording of Article 7(3) of the Tribunal's Statute, the

2 accused -- the accused had the duty to take "necessary and reasonable

3 measures." What in the circumstances were "necessary or reasonable

4 measures"?

5 First, in the case of an incident in which some 30 civilians have

6 been killed, there must be an obligation to act immediately. Imagine a

7 situation, Your Honours, in civilian life in which 30 people were

8 murdered. Can one imagine the police responding a month or even a week

9 later? Clearly, in the case of an incident of such gravity, the police

10 would respond immediately as a matter of emergency. The slightest delay

11 in responding to the situation could lead to the loss of crucial evidence,

12 to the inability to identify and secure key witnesses, and ultimately to

13 the inability to identify the offender who may remain at large and be in a

14 position to reoffend.

15 Indeed, in the case of a military commander, there are additional

16 reasons why a response to such incidents must be immediate and urgent. In

17 the chaos of a war zone, evidence of crime is more likely to be rapidly

18 lost if not immediately secured. Furthermore, in the violent atmosphere

19 of a war, perpetrators of war crimes are more likely to reoffend very soon

20 if not immediately identified and punished.

21 Secondly, there must be an obligation to take action which is

22 effective to prevent the commission of the crimes or to identify and

23 punish the offender. Again, imagine a situation in civilian life in which

24 30 civilians had been killed. Can it be imagined that the police would

25 respond to such an incident by writing a report to a superior suggesting

Page 38

1 that the matter be investigated and then never following up when there is

2 no response to the report? If Article 7(3) of the Tribunal imposed on a

3 commander no obligation other than to write a report to a superior, the

4 principle of superior responsibility would be meaningless.

5 It is accepted that in the middle of a war zone events of war may

6 impose certain limitations on the ability of a commander to investigate or

7 punish war crimes by subordinates. For instance, a commander cannot

8 secure and investigate the scene of a crime if at the time the scene of

9 the crime has been captured by the enemy. However, this does not mean

10 that a commander can always claim to be relieved of his superior

11 responsibility under Article 7(3) on the ground that there was a war on at

12 the time. Again, if this were the case, superior responsibility would be

13 meaningless. A commander is always legally responsible under Article 7(3)

14 to do what is necessary and reasonable in the circumstances.

15 The Prosecution case is that the accused was clearly not

16 prevented from taking immediate and effective action to prevent the crimes

17 that were committed in Grabovica, or to investigate and take steps to

18 punish the crimes that were committed in Grabovica and Uzdol. It is no

19 defence to say that he was preoccupied with other matters. Such an

20 argument would also render superior responsibility meaningless.

21 The Prosecution case is that the accused was at the time

22 focussing his attention and time on other matters and could not be

23 bothered with the atrocities in Grabovica and Uzdol. That, Your Honours,

24 is the very situation that Article 7(3) is designed to prevent, the

25 situation of a commander who is focussed on militarily defeating the enemy

Page 39

1 and cannot be bothered with preventing or punishing the commission of

2 crimes by his subordinates. The commander who wants the glory of victory

3 but none of the responsibilities of command. The accused was such a

4 commander.

5 I should add for completeness, Your Honours, that it is accepted

6 that the accused may not be the only person who is liable under

7 Article 7(3) for the crimes committed in Grabovica and Uzdol. In a

8 military organisation, there is a chain of command. Persons at different

9 levels in the same chain of command may simultaneously be criminally

10 liable under Article 7(3) if they all have the requisite knowledge of a

11 crime committed by a subordinate and if they all fail to take action in

12 response.

13 It may be that in the case of incidents at Grabovica and Uzdol

14 there are others above or below the accused in the chain of command who

15 are also criminally liable for failing to take action or to prevent or to

16 punish the crimes. However, the Trial Chamber is not called upon in these

17 proceedings to decide whether that is the case. The issue in this case is

18 whether the accused failed to take the necessary and reasonable measures

19 that were his legal obligation as a commander to take. The Prosecution

20 will prove at trial that he did not.

21 Your Honours, the Prosecution has the burden of proving its case

22 against the accused beyond all reasonable doubt, and in the coming weeks

23 by leading evidence and producing exhibits the Prosecution shall discharge

24 that burden.

25 Your Honours, unless there's anything else I can assist Your

Page 40

1 Honours with, those are my opening remarks.

2 JUDGE LIU: Thank you. Thank you very much.

3 Now, at this stage are there any other matters, especially

4 concerning the coming witnesses, the parties would like to bring to the

5 attention of this Chamber?

6 Yes, Mr. Weiner.

7 MR. WEINER: Your Honour, the first witness is requesting

8 protective measures. If the Court would like hold a hearing now or in the

9 morning.

10 JUDGE LIU: Well, shall we go to the private session, please.

11 [Private session]

12 (redacted)

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11 Pages 41-46 redacted. Private session.















Page 47

1 (redacted)

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9 (redacted)

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11 (redacted)

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15 (redacted)

16 [Open session]

17 JUDGE LIU: Yes, Mr. Morrissey.

18 MR. MORRISSEY: Your Honour, there are a number of housekeeping

19 matters. And bearing in mind the time constraints mentioned by Your

20 Honour, and bearing in mind that some of these matters would benefit from

21 discussion between Defence and the Prosecutor, might I mention that we

22 would seek to raise a number of these matters which are disparate in

23 nature tomorrow at the conclusion of the witness's evidence, which we

24 believe will terminate within the time available to the court tomorrow and

25 intend to facilitate that occurring. And rather than canvass them in

Page 48

1 brief now, perhaps, unless the Court would -- the Tribunal would want to

2 hear about them in advance, we can leave them until then. But we have --

3 we have a number of them, one of which will be taken by Mr. Mettraux, my

4 co-counsel, and others concern disparate matters such as the witness list

5 and advance notice of which witnesses are going to be called and matters

6 of that nature, which are of importance.

7 JUDGE LIU: Well, would you please very briefly give us a rough

8 idea.

9 MR. MORRISSEY: Yes. Yes, with the Court's leave, I will.

10 Firstly, we would want to raise the issue of -- of witnesses for

11 the second week. At the moment, it's -- we have an indication that two

12 witnesses -- two crime scene witnesses will be called, followed by,

13 pursuant to discussions with Your Honour, the witness Salko Gusic. And I

14 should indicate to the Court that Mr. Gusic is likely to be a more lengthy

15 than usual witness. The Prosecution, having trimmed its case and, as we

16 say, despite some of the motions admirably so, the fact is that we have

17 had to reconsider some cross-examinations and in particular material that

18 would be put to some witnesses now no longer to be called may have to be

19 put to Mr. Gusic.

20 As a result of that, it's likely that the Court will find a -- a

21 more lengthy than normal cross-examination will occur with respect to him.

22 In the long term, we hope that's going to assist because it means that

23 documents of various sorts will be looked at by him and then will be in

24 evidence.

25 But we mention that for court management purposes because it may

Page 49

1 be that he goes a little longer than expected. Other witnesses, we hope,

2 will go commensurately shorter.

3 Having given that indication to the Prosecutors, we obviously

4 need to know who's coming next for our own preparation purposes, and

5 bearing in mind the chaos that occurs at the start of trials, we

6 nevertheless hope the Prosecution will soon be able to tell us - and very

7 soon - be able to tell us what the answer to that question is.

8 The next matter we'd raise concerns the issue of protective

9 measures in general, and we -- we now find that it's been moved ahead of

10 by events. We really do want there to be an orderly procedure with

11 respect to protective measures. It's -- it can create an unfairness. It

12 didn't today, but it can create an unfairness for the Defence if

13 applications in relation to protective measures are raised at the last

14 minute because there are some witnesses that we would certainly not be

15 consenting to, should it be raised. So therefore, we mention that matter.

16 Would Your Honour excuse me.

17 [Defence counsel confer]

18 MR. MORRISSEY: We mention now that there is some progress in

19 respect to the -- the translation of documents, and we are being assisted

20 in relation to the translation of Defence documents as much as we can.

21 I should mention in respect to the witness Mr. Gusic, it may

22 chance - and it would be unfortunate if it did - but it may occur that

23 there are documents that we wish to put to him that are not yet

24 translated. Should that occur, it occurred that it was appropriate to

25 mention it to the Court now and so that the Prosecutor could comment as

Page 50

1 well, that the Defence, whilst Mr. Gusic is a witness who plainly, we'd

2 say, must be here. If there be residual cross-examination that -- that

3 can't proceed immediately, the Defence would be very content if the

4 witness were called again at a later stage and by videolink, if needs be,

5 at a later stage in order to accommodate such residual cross-examination.

6 We hope it won't be necessary. We're pressing ahead. But it's no use to

7 complain at the time, so we -- we mention that now.

8 And, Your Honour, those are one load of matters. My learned

9 co-counsel has a couple of others that he would raise in brief.

10 MR. METTRAUX: Yes. Good morning, Your Honour.

11 All of the issues which I would like to raise right now relate to

12 disclosure matters, and they will be quite short. The first one relates

13 to the same 14 Rule 68 documents which we have been discussing in the past

14 week, and we just want to note the fact that leave has yet to be sought in

15 relation to those 14 Rule 68 documents.

16 A second issue relating to the disclosure relates to the chain of

17 custody of Prosecution exhibits or Prosecution proposed exhibits. There

18 was an understanding at the time that the Defence would be provided with

19 detailed chain of custody of Prosecution exhibits at the time when the

20 Prosecution would file its motion to vary its Rule 65 ter list. We still

21 haven't gotten this document.

22 We also mentioned last week the missing statements of a number of

23 witnesses which the Prosecution propose to put forth. The Defence over

24 the weekend has discovered that yet another statement appears to be

25 missing; that of Witness B, who is to appear as a witness this week on

Page 51

1 perhaps Wednesday or perhaps Thursday. The other two witnesses being

2 Witness D and Mrs. Miletic or Ms. Miletic.

3 Another matter relates to the witness Gusic. The Defence has

4 been asking to be provided with material pertaining to the suspect status

5 of Mr. Gusic for a long time now. We would like inform the Court that we

6 still haven't received any search material on the part of the Prosecution.

7 Concerning matters of exhibits, we discussed last week briefly

8 the list which we received -- or the table, to be more precise, which we

9 received of the new proposed exhibits from the Prosecution. We would like

10 to inform the Chamber that 70 to 80 per cent of the new proposed exhibits

11 are not yet been -- have not yet been translated into English, and it's,

12 as you can imagine, impossible for the counsel in this case, at least, to

13 read or understand those documents fully.

14 The last matter which I would like to raise with the Trial

15 Chamber at this stage relates to an order of the President of this

16 Tribunal of 24 January 2005 whereby he orders the Prosecution to seek

17 leave from the Trial Chamber to disclose to the Defence material

18 pertaining to the confirmation of the indictment against Mr. Halilovic.

19 And this request of the Prosecution has not been made yet, and the issue

20 would be of relevance to the Defence ability to cross-examine a number of

21 witnesses. So we would be grateful for this matter to be dealt with

22 expeditiously.

23 Thank you.

24 JUDGE LIU: Any response from the Prosecution?

25 MR. RE: Yes. I'll is respond to two of those matters. My

Page 52

1 learned colleague Mr. Weiner will respond to some others.

2 The last matter my learned friend Mr. Mettraux raised about the

3 seeking of the leave, I was unaware that the President had made the

4 decision, which appears to have been a week ago. I orally now seek the

5 Trial Chamber's leave to disclose that material to the Defence, which from

6 what I understand Mr. Mettraux just said, would comply with the

7 President's direction.

8 The second one was the statement of Witness B. I respond to

9 that because he's the second witness. I'll be taking him. His

10 statement -- in his statement, he says, "I think it's the fourth time I'm

11 being interviewed by the OTP." The Defence yesterday wrote a letter

12 saying there are -- he said he had been interviewed four times. He

13 hasn't. As his statement says, he thought he's been interviewed three

14 times. The Defence have each of the three statements. There is

15 nothing -- nothing more to disclose.

16 JUDGE LIU: Mr. Weiner, are you going to add something?

17 MR. WEINER: Just -- just briefly, Your Honour.

18 With regard to the Gusic matter, the motion requesting certain

19 documents is before the Chamber at this time and as a result we haven't

20 taken any action.

21 With regard to his suspect status, as we stated clearly at that

22 hearing, he is not a suspect at this time. He is not under investigation

23 at this time. He is not a suspect at this time. Thank you.

24 JUDGE LIU: Thank you very much.

25 Well, there were several issues that I would like to mention at

Page 53

1 this stage. First of all, the list of the witnesses. We only got three

2 witnesses for this week, which is not enough. I believe that I said the

3 first group of the witnesses, which might last for two or three weeks of

4 the trial. So I hope that the Prosecution could file the list of the

5 witnesses they are going to call at least for next week to the Chamber and

6 to Defence so that they could have a good preparation or prior notice of

7 that.

8 Yes, Mr. Weiner.

9 MR. WEINER: Your Honour, we will file that this afternoon.

10 JUDGE LIU: Thank you very much. You should have done that last

11 Friday.

12 The next issue is about translation issues. This Trial Chamber

13 was very disappointed to hear that so many documents has not been

14 translated into the language that the Defence team could understand, which

15 might delay the proceedings of this case. And in practice it depends on

16 how long those documents -- how much those documents could be used in the

17 trial. If there's only a few sentences that will be quoted by both

18 parties, we could rely on the oral translations. But if the whole

19 document is extremely important to both parties' team then that document

20 need to be translated into the proper language. So we will see how far we

21 could go, and we might break for a while for the translation issues.

22 As for the order of the President to disclosure of those

23 supporting materials, I believe this Trial Chamber is in a position to

24 grant that request, so that the Prosecution's team might disclose all

25 those supporting materials related to indictment as soon as possible.

Page 54

1 As for the protective measures, I believe that if there is

2 requests for the closed session, we need to discuss it in details. But

3 for other protective measures, including the face distortion and

4 pseudonym, I just hope that the party asking for that protective measures

5 informed this Court orally and show good cause for that.

6 As for the other mentioned -- as for the other mentioned motions,

7 this Trial Chamber is under the consideration and we have promised you

8 that we'll render our decisions as early as possible.

9 Are there any other matters that the parties would like to

10 mention?

11 Yes, Ms. Chana.

12 MS. CHANA: Your Honour, there is one matter. I heard Defence

13 counsel talk about documents they may show Mr. Gusic who -- might not be

14 translated. We would appreciate all the documents they're going to use in

15 their cross-examination, so they can give them to us, even if they're not

16 translated, for us to have a look at them. I think that should be the

17 practice in any event, that the Defence should turn over to the

18 Prosecution documents they're going to use in cross-examination so that we

19 are aware of them and can make the -- the preparation that we need.

20 JUDGE LIU: Well, generally speaking, that the Defence team has

21 no obligation to show any materials beforehand in their cross-examination.

22 I think the same rule also applies to the Prosecution.

23 We will see, you know, how these things will be conducted in the

24 actual trial. It's very difficult for us to prejudge anything, because we

25 haven't got those materials ourselves. But the cross-examination is

Page 55

1 totally different with the practice of the direct examination.

2 Yes, Mr. Morrissey.

3 MR. MORRISSEY: Yes. Thank you, Your Honour.

4 Could we just indicate that we'll do everything we can to assist

5 the e-court facilities in that regard. But otherwise we have nothing to

6 add to what Your Honour said in that regard.

7 There was one other matter which I neglected to raise. It's very

8 brief. Where an application is to be made for a witness to give evidence

9 by videolink, the Defence needs to be given some notice of that. In some

10 cases evidence would need to be led, or at least the Tribunal provided

11 with some material upon which to act. And in some cases that material may

12 be challenged or may not be accepted simply on assertion. Rather than

13 demanding live witnesses be transferred immediately to The Hague or to a

14 videolink at the time when the application is made orally, if we were told

15 in advance we could indicate to the Prosecution and to the Tribunal what

16 the nature of any controversy is going to be and thus save time and

17 efficiency. So we would like to be given that notice, and we hope the

18 Prosecution will give such notice.

19 JUDGE LIU: Thank you very much for reminding me of that point.

20 Frankly speaking, we haven't been informed about the exact date

21 of the -- those two video conference link witnesses at this stage. I hope

22 we could get this information as soon as possible after the consultations

23 between the Prosecution's team and the Registrar.

24 Well, I think that's all for today, and tomorrow afternoon at

25 2.15 we'll hear the first witness in the same courtroom.

Page 56

1 The hearing for today is adjourned.

2 --- Whereupon the hearing adjourned at 11.42 a.m.,

3 to be reconvened on Tuesday, the 1st day of

4 February, 2005, at 2.15 p.m.