1. 1 Thursday, 25th November, 1999

    2 [Open session]

    3 --- Upon commencing at 10.46 a.m.

    4 JUDGE JORDA: [Interpretation] Please be

    5 seated. Registrar, would you have the accused brought

    6 in, please?

    7 [The accused entered court]

    8 JUDGE JORDA: [Interpretation] Good morning to

    9 the interpreters. I'm sure that everything is

    10 functioning properly since there was a hearing before

    11 this one, which also explains why we have encountered

    12 some delay now.

    13 I, first of all, would like to say good

    14 morning to all of the parties present, Office of the

    15 Prosecutor, and to the Defence, to the accused and then

    16 begin our final day.

    17 I see Mr. Greaves has changed his seat. I

    18 hope that he slept well. Have you slept well,

    19 Mr. Greaves? Perhaps the final argument will be

    20 shorter than he originally said, but I'm only joking.

    21 Take all the time that you need, Mr. Greaves. Take as

    22 long as you need, Mr. Greaves.

    23 We can begin. I think if we can, if we can

    24 finish with the Prosecutor's final argument this

    25 morning, we will. We'll take a break at 11.30, because

  2. 1 the interpreters are tired; they began working this

    2 morning, and the Judges may be a bit tired as well,

    3 even though, of course, the Judges are never tired,

    4 indefatigable.

    5 I see Mr. Greaves is still standing. Did you

    6 want to say something, Mr. Greaves?

    7 MR. GREAVES: I was looking at the

    8 transcript. I haven't got my earphones on and I

    9 thought it was going to be something that required me

    10 to say something, but I won't say anything at all.

    11 JUDGE JORDA: [Interpretation] No, no, not at

    12 all. I'm trying to make a joke. I'm trying to reach

    13 the level of British humour, which is legendary, but I

    14 don't think I'm able to do that.

    15 In any case, without any further ado, I

    16 suppose that Mr. Nice -- good morning -- who is going

    17 to begin his final argument. I give you the floor,

    18 Mr. Prosecutor.

    19 MR. NICE: Thank you. There was, I think,

    20 going to be documents my learned friend wished to put

    21 in. We had one document that was going to be submitted

    22 in addition. I don't think he wants our document to go

    23 in, but I don't object to his documents going in if he

    24 wants them in.

    25 JUDGE JORDA: [Interpretation] I don't know.

  3. 1 I thought there was just the report of the detention

    2 unit commander that had been asked for. The Defence

    3 received it late.

    4 But you received it today; is that correct,

    5 Mr. Greaves? It's on the Judges' desk here in

    6 English.

    7 MR. GREAVES: I'm grateful for Your Honours'

    8 indicating that you now have the report of

    9 Mr. McFadden. Your Honour, there are some documents

    10 which we would wish to submit, and the reason you

    11 hadn't heard about them until now is because they were

    12 the subject of discussions between my learned friend

    13 and myself, and we had not yet reached any position as

    14 to agreement or otherwise. May I, therefore, submit a

    15 total of seven folders which contain English

    16 translations and some originals or copies of

    17 originals.

    18 JUDGE JORDA: [Interpretation] Yes, yes, of

    19 course.

    20 MR. GREAVES: Thank you very much. As far as

    21 the document which the Prosecution indicated that they

    22 would wish to present, as far as the Defence is

    23 concerned, we do not accept the truth or the contents

    24 they have thereof, and I indicate that in advance.

    25 JUDGE JORDA: [Interpretation] What document

  4. 1 are you speaking about, Mr. Greaves?

    2 MR. GREAVES: The document that Your Honour

    3 has just been told by my learned friend he would wish

    4 to present in due course a moment or two ago. That's

    5 what my learned friend --

    6 JUDGE JORDA: [Interpretation] I don't know.

    7 I need some help here because I don't really

    8 understand. I thought that we would begin with the

    9 final arguments this morning. Mr. Tochilovsky, what

    10 document are you talking about? What is being

    11 contested? What truth is being contested? Can you

    12 tell us, please, so if we need to take a decision we

    13 will.

    14 MR. TOCHILOVSKY: It's mostly about the

    15 Defence documents, the documents the Defence wants to

    16 be admitted. As it was mentioned already that the

    17 Prosecution in general doesn't object to the admission

    18 of these documents, but we have just a few comments on

    19 that.

    20 First of all, about the credibility of those

    21 documents that the Defence just produced to the Judges,

    22 to the new panel, for instance, there are two letters

    23 of discharge from the medical centre in Brcko of the

    24 accused. According to one letter, the accused was

    25 treated in that centre from 8 September to 9 September,

  5. 1 1992, and he was admitted with a wound in the left

    2 foot.

    3 According to another letter of discharge from

    4 the same hospital, on the same dates, 8 September to

    5 15 September, he was treated for firearm wounds in the

    6 right shank, in the right ankle joint. So these

    7 documents apparently contradict each other. It's about

    8 the credibility of those documents.

    9 Another point is that the other documents the

    10 Defence presented has the certificate of 17 June, 1998,

    11 according to which Goran Jelisic served in the army of

    12 Republika Srpska from 28 June, 1992 to 20 April, 1996.

    13 At the same time, the Defence asked to admit the case

    14 history, according to which Goran Jelisic was employed

    15 by the Ministry of the Interior, MUP, the 30th of July,

    16 1992.

    17 With regard to the document which was

    18 mentioned, the document the Prosecution would like to

    19 be admitted alongside with the documents of the

    20 Defence. The Defence produced the case history and

    21 findings, according to which the accused was

    22 examined -- was examined on his psychological status on

    23 31st July, 1992, and according to this report, he may

    24 have elements of paranoia. At the end of this

    25 document, it says that it is necessary for him to

  6. 1 undergo psychiatric examination and treatment in a

    2 psychiatric clinic in Belgrade.

    3 Of course, it is helpful for the Judges to

    4 see the report on psychological studies of the accused

    5 from Belgrade. It is logical. The Defence did not

    6 produce that document. The Prosecution has the

    7 document. We have the document from Belgrade, and

    8 according to that document, Goran was admitted to the

    9 Belgrade clinic on 31st July. He was there from the

    10 31st to the 3rd of August, 1992, and from that document

    11 it's clear that psychologically there is no evidence,

    12 according to that document, no evident signs of

    13 disturbance in thinking and perception, critical

    14 thinking and consideration was preserved. Maybe this

    15 is why the Defence doesn't want this document to be

    16 admitted. But without this document, the documents

    17 that the Defence wants to be admitted, those documents

    18 don't give the whole picture of what was going on at

    19 that time.

    20 So this is a few points on the documents that

    21 the Defence wants to be admitted. Again, in general,

    22 the Prosecution has no objection to the admission of

    23 those documents.

    24 JUDGE JORDA: [Interpretation] Well,

    25 Mr. Greaves, Mr. Tochilovsky, I will consult with my

  7. 1 colleagues.

    2 [Trial Chamber confers]

    3 JUDGE JORDA: [Interpretation] The Judges will

    4 take all of the documents and will evaluate the

    5 relevance of those documents after they've heard the

    6 final arguments.

    7 Mr. Prosecutor, you may proceed.

    8 MR. NICE: It is of course a privilege and an

    9 education to appear in an International Tribunal with

    10 Judges from around the world, and before I start what I

    11 want to say about the defendant, I must record that in

    12 prosecuting this case, a large number of lawyers and

    13 investigators have been involved, not full time on this

    14 case but the Chamber will recall Mr. Terree Bowers

    15 opened the case about a year ago; that in the conduct

    16 of the case, he and I have been assisted throughout by

    17 Mr. Tochilovsky, the very senior legal advisor who has

    18 been with me throughout. We've had assistance from

    19 Mr. Bergsmo, who has been in court from time to time in

    20 the drafting and preparation of legal argument, the

    21 indefatigable assistance of Ms. Bauer, who sits in

    22 Court today, my legal officer, and who has done a range

    23 of tasks on this important case.

    24 Then there's been the investigators of whom

    25 you're heard, Mr. O'Donnell and Mr. Basham, who gave

  8. 1 evidence. Finally, there have been two case managers,

    2 Ms. Javier-Annink and Ms. Reynders, who sits with me,

    3 who have never missed a document or, I think, failed to

    4 meet a deadline. They being assisted by somebody

    5 you've never seen but who produces the documents, again

    6 working very hard, Ms. Walpita. Sometimes, from time

    7 to time, interns working free at this institution, such

    8 as a Mr. Duhaime, recently have added their shoulder to

    9 the wheel.

    10 So it's a privilege to work with such

    11 people. At the end of the exercise I take full

    12 responsibility, of course, for what happens, especially

    13 if anything goes wrong or if I say anything that is

    14 incorrect, but, nevertheless, insofar as the case is a

    15 success, it is a team job.

    16 In presenting our closing arguments to you,

    17 I'm going to distribute two documents, each of which I

    18 hope will take far less time to deal with than their

    19 initial appearance might suggest.

    20 The first document is my argument. I regret

    21 that it is not in French. It was only concluded, as

    22 the Chamber might expect, this morning.

    23 I am very mindful of the need to speak at a

    24 speed that accommodates the needs both of the

    25 interpreters and the English and French stenographers,

  9. 1 and if anyone has difficulty, because sometimes I speak

    2 too fast, I hope that they will draw it to my attention

    3 and I will immediately slow down. I have French at my

    4 neck in the hope that an injunction that I should do

    5 something different will be heard by me.

    6 JUDGE JORDA: [Interpretation] You can count

    7 on me, Mr. Nice.

    8 MR. NICE: This man, Goran Jelisic, was not

    9 just a willing executioner. He killed in unquestioning

    10 and happy obedience to any instruction to kill, however

    11 minimally expressed. He killed as if for pleasure on

    12 his own initiative or on a whim. He has never given a

    13 satisfactory or even a consistent account of how he

    14 became involved, how he was trusted to kill and kill

    15 and kill again. He claims to have acted on orders, but

    16 the Chamber will no doubt be alive to the possibility

    17 that he was, in truth, a volunteer. If he was such a

    18 volunteer, or indeed even if he is shown never to have

    19 told the truth about how he became involved, so much

    20 the worse for him.

    21 Recent discussion about borderline

    22 personalities cannot obscure the fact that civilised

    23 societies operate criminal justice systems on the basis

    24 that people bear responsibility for their acts, unless

    25 their mental state falls below a line normally

  10. 1 associated with severe mental illness. Although

    2 personality disorders may, in certain regimes or

    3 systems, change the circumstances in which a convicted

    4 person is held, sometimes keeping them longer in mental

    5 institutions than they would be in prison, there is no

    6 suggestion here that this defendant qualifies for such

    7 special treatment. He falls to be dealt with, as would

    8 the leaders of this or of other wars of terror who

    9 themselves probably had or have personality disorders,

    10 as a man of full age and responsibility.

    11 Every human instinct, we respectfully

    12 suggest -- whether in the bereaved, in such victims

    13 this man has survived, or indeed even in the hearts and

    14 minds of lawyers and judges -- will be that this man

    15 should receive the maximum possible sentence and should

    16 never again breathe the air of free society.

    17 But before galvanising such instincts into

    18 judgement, this Chamber has to consider whether there

    19 are factors that properly mitigate the natural view and

    20 that must be taken into account to reduce, inevitably

    21 at most to a modest extent, that maximum sentence.

    22 At first sight, there are some such factors:

    23 the defendant's behaviour, as the Defence will argue,

    24 before and after the killings as reflecting some

    25 essential good, his confessions, cooperation, and the

  11. 1 pleas of guilty. But as listed, these are only at

    2 first sight, and the fact that this is a sentencing

    3 exercise or part of the trial cannot free the Chamber

    4 from rigorous analysis of all the material and from the

    5 duty owed to itself, to the International Community,

    6 and to the victims to explore these factors in depth.

    7 If, on analysis, they or some of them are, in

    8 truth, further cynical reflections of the same wicked

    9 or corrupted mind that dispatched so many innocent

    10 Bosnian Muslims to wretched death, then it would be

    11 wrong to accord him benefit, unless the jurisprudence

    12 is clear that practical benefits, however arising, do

    13 buy a benefit.

    14 The Prosecution questions each of these

    15 potential mitigating factors, and I turn first to the

    16 Defence evidence, essentially, of his behaviour.

    17 To what extent was the defendant's behaviour,

    18 given by Defence witnesses, driven by knowledge that he

    19 would one day have to face these very accusations

    20 against which he prepared a smoke screen? To what

    21 extent have the Defence witnesses misled you by

    22 repeated assertions that they were told only that he

    23 was forced to kill, never taking natural inquiry

    24 further?

    25 Where Defence witnesses spoke of the

  12. 1 defendant as a good, young boy without discriminative

    2 tendencies, the Chamber will have in mind that this is

    3 probably of no relevance, given that all ethnic groups

    4 in Bijeljina, a predominantly Muslim town, got on well

    5 before the war. It is the corrupting of those good

    6 relations that is, in part, the real evil of the war of

    7 which we hear so much in this Tribunal.

    8 Witnesses such as DL, DO, and DS had only

    9 occasional contact with this man and showed lack of

    10 knowledge of things upon which he relied, like his

    11 relations with his family, his jealousy of his sister,

    12 and so on. Closer friends were uninformed of the real

    13 circumstances of his life; DJ apparently ignorant of

    14 his criminal activities; his best friend, DM, counting

    15 him a coward, knowing of his criminal activities, and

    16 spending the stolen money with him is a witness of whom

    17 the Chamber will inevitably be cautious. Although in

    18 light of the psychiatric evidence yesterday, it's

    19 interesting to note that DM pointed out the defendant

    20 liked money and it was greed that led to crime, nothing

    21 else.

    22 Witness DR, whose son was taken on holiday,

    23 showed huge trust for no apparent reason. Was this her

    24 naivety in the face of the defendant's naivety? Was it

    25 naivety in the face of a false story by the defendant?

  13. 1 Is the story itself true or false? None of the

    2 supposed possible or intended victims at Luka,

    3 allegedly spared by the defendant, have been called to

    4 testify, and stories coming through third parties,

    5 which I list in paragraph 13 or I identify, come from

    6 witnesses who are alive and well and should have been

    7 here themselves.

    8 All this evidence, carefully assessed, fits

    9 with the defendant's delusion of grandeur and

    10 narcissistic tendency. It shows neither remorse, nor

    11 contrition but are other facets of the same personality

    12 that committed these crimes. Setting up of mitigation

    13 witnesses fits with manipulation. Helping Muslims, if

    14 he did, fits with his wanting to be seen as a hero, not

    15 an executioner, and the Chamber may conclude he did not

    16 do these favours out of remorse or guilt but to polish

    17 his ego, and they cannot benefit him.

    18 Strangely, paragraph 16, almost none of the

    19 witnesses dealt with his behaviour between Brcko and

    20 his arrest, none of them speaking of his qualities as a

    21 family man, less still as a worker, and it is something

    22 of a mystery, what happened in that period of time,

    23 although it's clear that residents in his town must

    24 have known of what he was reported to have done.

    25 One witness spoke of 1997, that was DO, the

  14. 1 joint holiday he organised. By then, the defendant

    2 knew he was indicted and was hunted, and that witness's

    3 reliability has to be set against his finding of refuge

    4 for a known indictee of this Tribunal and doing so with

    5 a false name.

    6 The witness called this week, DQ, given

    7 evidence of the hunted, or was it the haunted, man

    8 thinking of surrender shows this defendant seeking to

    9 pursue his own interests and, to some degree, his

    10 family's when he asked for 50.000 dollars in difficult

    11 and increasingly impossible circumstances. But his

    12 ease of contact with such a public figure as DQ in

    13 public places raises the issue of whether his movements

    14 were known and even supervised in a town where he could

    15 move freely. His ability to have a false

    16 identification card at his arrest but apparently to

    17 show his real card to the Witness DQ is, similarly,

    18 odd. At the end of DQ's evidence, the fact is that the

    19 defendant could easily have surrendered. He actually

    20 tried to effect some advantage for himself and he did

    21 not surrender.

    22 Consistent with that evidence, the other

    23 Defence evidence shows that during the wartime and

    24 thereafter, the defendant could move freely in

    25 Bijeljina and Brcko, that he had money to give away,

  15. 1 maybe from smuggling as he, I think, says in his

    2 interview, and the Chamber may conclude that he wasn't

    3 in such great danger, at least not initially, of being

    4 liquidated by the authority of Bijeljina or Brcko and

    5 that he did not, in truth, have to hide from anyone, at

    6 least at most times.

    7 We conclude by inviting the Chamber to say

    8 that the witnesses presented on his behalf established

    9 nothing to constitute material mitigation. Some fall

    10 to be discounted for having given evidence by videolink

    11 without good cause. If the Prosecution evidence

    12 showing enthusiasm to kill is accepted, then all that

    13 evidence from Defence witnesses suggesting reluctance

    14 to kill is unreliable. Either it is to be distrusted

    15 or it reveals the defendant having a mind capable of

    16 being split into highly contradictory behaviour or

    17 patterns, apparently at the same time. But it is

    18 always possible that a borderline personality, creating

    19 its own reality, as the psychiatrists told us

    20 yesterday, has lied about events to some or all of

    21 these witnesses and, therefore, lies through them to

    22 this Court.

    23 The developing picture of the defendant,

    24 built on his lay witnesses and on his psychiatrist's

    25 evidence, may be contrasted with what we untutored,

  16. 1 non-experts, as of course we all are, might

    2 nevertheless imagine a truly remorseful and contrite

    3 person would show.

    4 Where, we ask, is the agony of reflecting on

    5 the heads, the faces, and the bodies of those he

    6 killed, the agony of the guilt to their families?

    7 Where, indeed, does he say anything spontaneous and

    8 from the heart to show a moment's care, except for

    9 himself? He took advantage of a war situation to

    10 embark on some form of self-gratification by the

    11 exercise of all and the ultimate control. Does such a

    12 man, we ask, have the right to enjoy freedom again, and

    13 would justice be served if he did?

    14 The Chamber should know that the weight of

    15 the document I've handed in includes an annex at the

    16 end, to which I will pay no further attention but which

    17 occupies pages 31 to the end and which is a fuller

    18 analysis of the Defence witnesses' evidence. It's

    19 available for reference should that be of assistance.

    20 I turn, on page 8, to the defendant's

    21 confessions in interview.

    22 To what extent were those admissions

    23 sanitised versions of a grimmer reality? They were

    24 only made after the service of statements that showed

    25 the impossible task he had of denying the killings he

  17. 1 eventually admitted. Were they made not to reflect

    2 anguish and contrition but to mislead this Chamber into

    3 finding him less evil than, in reality, he was? The

    4 Chamber will note, on analysis, the limited degree to

    5 which he went beyond what was proved to the hilt in the

    6 papers served and, indeed, his refusal to allow certain

    7 topics to be explored, including, as we know, the whole

    8 issue of genocide, the charge now acquitted for lack of

    9 evidence state of mind. I will deal with those

    10 interviews more fully when we look at the evidence

    11 generally.

    12 I turn to cooperation. The defendant's

    13 cooperation with the Prosecution has not been

    14 substantial and ongoing.

    15 The Chamber will see throughout my address

    16 footnote references. I don't propose to read any of

    17 them out, unless it's thought essential that I should

    18 do so, but they either identify support for

    19 propositions I advance in the text or they identify

    20 relevant passages of the evidence in the case.

    21 If it has not been substantial and ongoing,

    22 maybe it should not be considered as a mitigating

    23 factor in the sentencing. To be considered

    24 substantial, the cooperation extended to the Prosecutor

    25 must be significant and must contribute in a meaningful

  18. 1 way to the administration of justice, but I observe

    2 that this is supported by a presentencing brief, not by

    3 a judgement, in the Kambanda case, although it doesn't

    4 appear that it was disagreed with.

    5 Several factors show that the defendant's

    6 cooperation was not significant and did not contribute

    7 in a meaningful way. It did not contribute to the

    8 effective arrest of other defendants or to the

    9 effective pursuit of other suspects or targets, and it

    10 did not lead to significant investigations.

    11 The defendant did not surrender himself

    12 voluntarily. The information provided was not

    13 considered by the Prosecution as useful, taking into

    14 consideration the fact that it was mainly public

    15 information or information of common knowledge, except

    16 with respect to his own acts. The Prosecution

    17 considers part of the information to be unreliable or

    18 incorrect because of inconsistencies and because of the

    19 sanitised version of events given.

    20 It is right to note, as I do at the end of

    21 subparagraph (c), he did make, as the Chamber will

    22 recall, specific allegations -- and I believe the name

    23 was in private session and, therefore, it doesn't

    24 appear here -- but he made specific allegations about a

    25 member of a body, which I have identified in the text,

  19. 1 and indeed blamed that person fully for what he says he

    2 was ordered to do. Further, cooperation was limited

    3 because the defendant, as indeed the psychiatrist

    4 reminded us yesterday, was very definite about that

    5 which he was and that which he was not prepared to

    6 discuss.

    7 There was no plea agreement between the

    8 Prosecution and the defendant confirming significant

    9 cooperation in this case, and in the upshot, the

    10 Prosecution did not and does not invite the Trial

    11 Chamber to consider the cooperation as a significant

    12 mitigating factor.

    13 Pleas of guilty. To what extent do the pleas

    14 of guilty justify a reduction of the otherwise

    15 appropriate sentence? Given the nature of the evidence

    16 served and the circumstances in which the pleas were

    17 tendered, we argue that they should not be considered

    18 as a significant mitigating factor. Such pleas being

    19 considered as such factors only in specific

    20 circumstances.

    21 Sometimes a guilty plea is an indicator of

    22 remorse, but the Chamber may conclude that there is no

    23 evidence of genuine remorse here. And the Prosecution

    24 respectfully submits that the Trial Chamber should

    25 consider the remorse related evidence of the Defence as

  20. 1 particularly unreliable.

    2 Again, I digress perhaps in the text as in

    3 what I say, but we were reminded yesterday that the

    4 first and only time of anything approaching tears of

    5 remorse came in that very last psychiatric examination

    6 prepared for these purposes or for the purposes of

    7 evidence and with all the benefit of the previous

    8 psychiatric and psychological reports at his hand. The

    9 defendant is never found breaking down at the image of

    10 someone he's killed, or with shame, guilt, or grief,

    11 thinking of the bereaved, of the unborn families, and

    12 so on.

    13 I turn to paragraph 28. A guilty plea,

    14 sparing the victims the need to testify or to wait --

    15 I'm sorry, something has gone wrong there -- to testify

    16 could be considered as a mitigating factor. But as has

    17 been revealed, there has been significant

    18 cross-examination of many of the witnesses. Even had

    19 there been in trial on genocide, much of the same

    20 evidence would inevitably have to be adduced to prove

    21 the facts of the plea, given that the defendant showed

    22 by his cross-examination that he did not accept the

    23 witness statements and that would have led inevitably

    24 to the need to resolve contested issues of fact by

    25 witnesses called for sentencing purposes. So that the

  21. 1 guilty pleas tendered have not had the effect of

    2 sparing all the witnesses from giving evidence.

    3 A guilty plea should not necessarily be

    4 considered as significant mitigation where prior to the

    5 plea the defendant is given access to evidence that

    6 shows he has little choice. In such circumstances, the

    7 plea may appear little more than a tactical manoeuvre

    8 to obtain a lighter sentence or some other advantage.

    9 Particularly important, again, where no remorse is

    10 revealed.

    11 In this case, the defendant consulted the

    12 evidence prior to interview. He admitted little beyond

    13 what was shown in the evidence. Some killings, it's

    14 true, a few, but not very much.

    15 The Chamber will be aware of the degree to

    16 which witnesses were able to speak, sometimes in detail

    17 and sometimes in only general terms, of numerous other

    18 killings by this defendant, far in excess of what was

    19 articulated with precision and thus what was admitted.

    20 I repeat. The defendant was concerned with

    21 psychiatrists and with the investigators to set the

    22 agenda for interviews and to exclude topics. That

    23 reality serves two purposes; one his and one the

    24 Chamber's. He avoided questions that may have been

    25 crucial and difficult, and provided unmistakable

  22. 1 evidence of his need and desire to control, supporting

    2 the psychiatric opinion, boding not well to his future,

    3 but also supporting our proposition that the pleas of

    4 guilty bring him little credit or none because they

    5 were not, the Chamber may conclude, in any sense a full

    6 admission.

    7 If regardless of these points the Trial

    8 Chamber was to consider the defendant's guilty plea a

    9 mitigating factor, we submit that the extensive

    10 evidence of aggravating factors referred to later

    11 overrides any possible mitigating force of the plea.

    12 A guilty plea can be, but in this case is

    13 not, of importance to national reconciliation. By way

    14 of coda to our submissions, we also observe that the

    15 defendant's conduct in trial may undermine the benefit

    16 of his pleas.

    17 One has to be generous of human frailty, of

    18 course of real illness, even in those on trial, even in

    19 those who are wicked, but the Chamber and indeed the

    20 Prosecution has, of course, observed some of the

    21 behaviour of this defendant, and the Prosecution asks

    22 the Chamber whether he has been playing straight and

    23 fair with the Chamber and with the witnesses for whom

    24 the giving of evidence is an important event in the

    25 restructuring of their lives. And if he hasn't been

  23. 1 playing fair, that is not to his credit but it has to

    2 be said, to his discredit.

    3 I turn to another topic and notice the time

    4 on the clock.

    5 JUDGE JORDA: [Interpretation] Yes. I was

    6 going to suggest that to you, since you've finished a

    7 part of your final argument.

    8 We are going to adjourn for 15 to 20

    9 minutes. The Court stands adjourned.

    10 --- Recess taken at 11.30 a.m.

    11 --- On resuming at 11.53 a.m.

    12 JUDGE JORDA: [Interpretation] We can resume

    13 the hearing now. Have the accused brought in, please.

    14 Please be seated.

    15 [The accused entered court]

    16 JUDGE JORDA: [Interpretation] Mr. Nice, you

    17 may proceed.

    18 MR. NICE: I turn, on page 12 of the note, to

    19 the background which must be sketched in.

    20 What is the relevant background for a man

    21 guilty of crime in time of war? Principally it is the

    22 man himself. He is his own background and he can draw

    23 little or no comfort from the wider background of war

    24 against which it must be remembered some suffer as

    25 victims, some behave innocently, some behave nobly.

  24. 1 Probably the most helpful material for the

    2 Chamber will be the psychiatric and psychological

    3 reports, although, of course, they proceed on the basis

    4 of what the man himself says. To an extent they may,

    5 therefore, be the self-serving accounts of the man and

    6 they may be unreliable, those accounts to the

    7 psychiatrists, if he has misled them. Each conceded

    8 that as a possibility. Nevertheless, clear patterns

    9 emerge.

    10 As a man, he blamed everyone for his

    11 shortcomings; parents, sister. He blamed the sight of

    12 his dead grandmother, his grandparents for spoiling him

    13 or for making him uneasy. He blamed alcohol, drugs,

    14 bad company, the forced separation from his first wife,

    15 in a startling passage in that first interview. He

    16 blamed pre-detention in Tuzla, where problems of ethnic

    17 or problems with ethnic groups started. He even blamed

    18 his young wife for tricking him into marriage, and the

    19 Serbian police for threatening to take his children

    20 away as the reason for him staying silent.

    21 He bragged particularly about women, and I've

    22 set out the passages. He was unable to display

    23 discipline, he avoided taking responsibility whether in

    24 the army or elsewhere, yet viewed himself in glowing

    25 terms as sensitive, with a pure spirit, good and never

  25. 1 bad, of high moral and emotional standards, a person

    2 who was having a positive effect, he says, on the

    3 people in Yugoslavia.

    4 He was a person and is a person who has lied

    5 to the very experts upon whom he depends and to some

    6 degree still relies. Spectacularly about being

    7 tortured in Croatia, and the Trial Chamber will recall

    8 the details to which he went; veins cut, hot coals, hit

    9 by concrete bars, then saying he was recaptured by

    10 Serbs who tortured him by salting his wounds. All of

    11 that, now the subject of a request to rub it out

    12 completely, although of course, the Defence would seek

    13 to distinguish between Croatian torture and Serbian

    14 torture. But in fact, one has to look more widely at

    15 the evidence to see what an accomplished and

    16 forward-thinking liar this man has been.

    17 Yesterday, I think, the Chamber, in some of

    18 its questions, understandably was allowing for the

    19 possibility, as he claims, that his lawyers had forced

    20 him to make up this account. When I say "allowing for

    21 that possibility," the Chamber, acting fairly, would be

    22 bound to do so, to allow the possibility.

    23 A year ago, Witness A, and more recently

    24 Witness DH, produced evidence that this man was

    25 complaining of Croatian torture in 1992. So it simply

  26. 1 isn't possible that the lawyers compelled him to make

    2 it up. And one witness called on his own behalf. It

    3 was a story he was peddling shortly after his time at

    4 Brcko. He showed a scar. And when the Defence seek to

    5 partition off the Serbian torture, which was the

    6 salt-in-the-wound torture, that was also spoken of in

    7 1992. So it may well be all the material about torture

    8 is a complete fraud.

    9 I turn over to page 15. He obviously lied to

    10 someone, either Van den Bussche or Dr. Duits, about

    11 things that he claimed in one report had been written

    12 down incorrectly.

    13 He's a man who claims to have done good at

    14 Luka with the priest and with the Imam. He claims

    15 disturbance following what he was forced to do, dreams;

    16 anxiety; depression; and, finally, tears.

    17 He is found by the experts to be a person who

    18 was justifying his actions, incapable of putting

    19 himself in another's shoes, manipulative, needing a

    20 father figure, egocentric and with delusions of

    21 grandeur, creating his own reality, yet once and only

    22 once, according to Van den Bussche, having remorse. He

    23 is seen as a man intense and on a mission to show the

    24 world that he's ready to do penance, but as Dr. Duits

    25 says, he turns everything around and glorifies in his

  27. 1 full cooperation, unaware of how he is inverting

    2 reality.

    3 He is diagnosed as showing a personality

    4 disorder with antisocial tendencies, a behavioural

    5 problem characteristic by narcissistic, antisocial, and

    6 avoidance tendencies, of but of course that

    7 psychiatrist was still working on the basis of torture,

    8 saying, as the Chamber may recall, that he had

    9 post-traumatic stress disorder, but as I say at the top

    10 of page 16, not to the extent one would expect given

    11 the traumatic experiences. The defendant was almost

    12 caught out there and then by those careful

    13 psychiatrists examining him.

    14 Diagnosis showing no remorse, little emotion

    15 with no deep feeling of regret, according to

    16 Dr. Herfst, and although this was challenged by the

    17 defendant, the Chamber will have to form its own view

    18 and may conclude that there is no ability and no

    19 reality in -- there is no ability to show and there is

    20 no reality in remorse.

    21 I quite understand and sympathise with the

    22 difficulties that the Defence are placed in by the

    23 ruling that's applied to them from the Registry about

    24 Dr. Petkovic, but my duty remains to rely upon it -- my

    25 duty remains to remind the Chamber that the view of the

  28. 1 person with the greatest contact with this man was that

    2 he could not control aggressive impulses. This was the

    3 reason for his behaviour in war; that he was primitive

    4 and unable to defer to his needs. A serious

    5 personality disorder was diagnosed, and he was found to

    6 have an angry charge related to his paranoid

    7 undercurrent, culminating in a clearly malicious,

    8 strongly paranoid rejection of people previously

    9 idealised.

    10 Well, Your Honours have had the psychiatric

    11 evidence recently. It will be fresh in your mind.

    12 There is an agreement really about the personality;

    13 there's agreement about the ability to be deceased;

    14 there's agreement about the manipulation. The

    15 examination even suggesting remorse, raised it only in

    16 relation -- I beg your pardon, raised tears not in

    17 relation to the victims but in relation to his

    18 contemplating those witnesses coming on his own

    19 behalf.

    20 So that's the background of the man. It's

    21 not pleasant to have to sketch these things out in such

    22 detail, even for a man facing sentencing for these

    23 crimes, but it has to be done in order that a fair

    24 appraisal of him and his responsibility can be made.

    25 Of course, to the psychiatrists, but also to

  29. 1 the investigators, he claims that he was only acting on

    2 orders, and so I turn briefly, before looking at

    3 aggravating circumstances, to the issue of superior

    4 orders as an element to be considered within the

    5 mitigation evidence that's been called, and generally.

    6 The fact that the defendant was not the

    7 commander of the Luka camp or a higher Bosnian Serb

    8 official should not be considered as a mitigating

    9 factor.

    10 The Nuremberg jurisprudence clearly shows

    11 that the fact that a defendant was a low-level

    12 perpetrator did not prevent imposition of the most

    13 severe sentences.

    14 In the Essen Lynching Case, a civilian was

    15 sentenced to death for the killing of a prisoner of

    16 war, while a private soldier went to life imprisonment

    17 for having failed to interfere with a crowd that had

    18 murdered prisoners entrusted with their custody.

    19 In the Belsen Case, four officials in Belsen

    20 and Auschwitz concentration camps were sentenced to

    21 death. A prisoner appointed camp senior in Belsen went

    22 to life imprisonment.

    23 In the Trial of Peter Bach, a German civilian

    24 was sentenced to death for killing a prisoner, and in

    25 the Trial of Karl Buck and Ten Others, people in charge

  30. 1 of a camp and two guards were sentenced to death for

    2 killing prisoners of war and civilians.

    3 Finally, in the Hadmar Case, the defendants

    4 were staff members of a small sanatorium in Germany and

    5 three were sentenced to death, four to prison terms

    6 ranging from 25 years to life.

    7 All of these defendants could claim for

    8 mitigation of superior orders. It availed them

    9 nothing. There is no intervening glass ceiling,

    10 to borrow a modern analogy, I think, from the business

    11 world, but there is no glass ceiling that separates for

    12 sentencing purposes those who are further down the

    13 chain of responsibility from those who are at the top.

    14 I turn to aggravating circumstances, as I

    15 think it is my duty to do, and suggest to the Chamber,

    16 at the top of page 18, paragraph 37, that aggravating

    17 circumstances in the following categories may be

    18 revealed: Dishonesty; enthusiasm to threaten, abuse,

    19 show ethnic hatred, and humiliate his victims, in

    20 short, discriminatory behaviour of a high order; the

    21 enthusiasm to exercise power, ultimately to kill even

    22 for pleasure; and the susceptibility to authority

    23 figures, for man is assumed able to question and resist

    24 the evil of others.

    25 I'll approach the material by categories or

  31. 1 by topics, again observing that if the defendant is

    2 revealed not to have been accurate or honest in his

    3 account, to have attempted to obscure in relation to

    4 any of these topics, that does him no good and may

    5 itself be an aggravating circumstance.

    6 Paragraph 39. Of course, personality

    7 problems that may not be attractive but which pre-exist

    8 crime cannot amount to aggravation. On the contrary,

    9 the Chamber is invited to say that the man must be

    10 accepted for what he was, even though that weakness of

    11 personality may not constitute mitigation.

    12 There is lack of clarity as to what he did

    13 between 1988 and 1990; maybe there were things he

    14 wished to hide. He began forging cheques in 1990. His

    15 sentence of three years and seven months was followed

    16 by events for which there is no great clarity in the

    17 accounts before the Chamber. I set them out on page

    18 19, I've covered them with the experts yesterday, and I

    19 save time by going to page 20.

    20 We turn to the recruitment and to the

    21 killings themselves.

    22 The Chamber will recall what Dr. Herfst said

    23 about how easily he could identify with people in

    24 authority, how, if placed in a position of power, he

    25 will unconsciously view this as a confirmation and

  32. 1 reinforcement of his identity and experience feelings

    2 of his own worth. The Chamber will probably recall

    3 what Dr. Duits said yesterday about the saying of

    4 giving someone a gun and a Motorola and he is God.

    5 It appears, from all the material, that he

    6 learnt about the plan to reinforce the Serbs in Brcko

    7 at a funeral, may have been recruited, went to Brcko,

    8 meeting a named person, paragraph 46, being told about

    9 the plan to blow the bridges and about the start of the

    10 war. In his account to psychiatrists and

    11 psychologists, he explains how he was put under

    12 pressure by paramilitary groups, wanted to run away but

    13 was given the name Adolf in circumstances where

    14 obedience was demanded. He blamed radicals to

    15 Dr. Herfst.

    16 On the top of page 21, he told that same

    17 doctor that he was summoned and ordered to kill

    18 Muslims, called Adolf, as told he had to kill and given

    19 a list, and that he would be killed if he did not kill,

    20 was provided with alcohol and pills. Dr. Duits, at the

    21 end of April, he said he was approached and ordered to

    22 report in uniform, otherwise he would be killed, and he

    23 then went on to give this account, which must be

    24 dishonest: "This bullet is worth more than your head.

    25 If you don't do what you're told; threatened his sister

  33. 1 would be raped if the job was not done correctly," a

    2 threat which has a strange echo in another threat he

    3 refers to elsewhere but of an entirely different kind;

    4 told he had to take people to the back of the police

    5 station and murder them.

    6 The reason I can say that that account has to

    7 be a lie is because throughout his interviews with the

    8 investigators, he makes it absolutely plain there was

    9 no specific threat of any kind. He repeatedly says, "I

    10 knew I would be killed," but asked if there was any

    11 threat, denies it. There was none.

    12 He told Dr. Duits he had to kill with his

    13 head turned away. We know that's untrue. The

    14 photograph sequence, which barely needs to be shown,

    15 probably etched in our memories, the photograph

    16 sequence shows he had no difficulty facing the people

    17 he was killing, although in that case, of course, he

    18 was killing a man from behind.

    19 Van den Bussche was told that he was forced

    20 to kill by superiors and would have been killed, and he

    21 then raised this graphic account of going on his knees

    22 to beg not to be allowed to go on, something he'd never

    23 said or even hinted at before.

    24 Those accounts, the Chamber may conclude,

    25 don't really fit one with another; they don't fit with

  34. 1 reality; they certainly don't fit with the descriptions

    2 given of his behaviour by all the witnesses. I come

    3 back to one of the very first things I said this

    4 morning, one of the things I raised with the

    5 psychiatrist, if you need someone to do dirty work for

    6 you, the easiest way of knowing whether the person is

    7 going to do it is to ask him. That's the way you get a

    8 volunteer. As the doctors were good enough to agree

    9 with me yesterday, this is the sort of man who would be

    10 a volunteer.

    11 Can I trouble you now with the second

    12 document, which looks far more alarming than it is

    13 because it's big, but we're going to deal with it quite

    14 swiftly, I hope.

    15 I have to review the evidence on the counts,

    16 and so this is a document of the nature which I've

    17 explained. It seeks, so far as possible, to deal by

    18 summary with the evidence in the case in a

    19 chronological order, and so it may be helpful for the

    20 Chamber generally, I hope it will be, although I expect

    21 the Chamber's own work on the case will include

    22 something similar maybe, but nevertheless it's a

    23 chronological document.

    24 The left-hand column is self-explanatory,

    25 events and dates, and we'll also see reference to

  35. 1 particular count numbers. The witness testimony comes

    2 in the middle, and to the right, where it's been

    3 possible to connect what the defendant said of an event

    4 with the event, that's set out there with appropriate

    5 references.

    6 The document changes form very slightly when

    7 we move beyond material that can be put in any

    8 chronological order because it's impossible to date it,

    9 so that starts at page 68, the page numbers being in

    10 the bottom right-hand corner.

    11 It's impossible to know how long I would take

    12 were I to take you through all of the rather limited

    13 number of passages I've highlighted, but if I try for

    14 ten minutes and see how far I go, then I may be able to

    15 review the approach generally. One can use this

    16 document to tell the story and to remind ourselves of

    17 the evidence concerning this man in a pretty orderly

    18 way, and if the Chamber will forgive me simply using

    19 page references and either "the right-hand column" or

    20 "the middle column," I can probably proceed quite

    21 swiftly.

    22 Page 1. In the right-hand column, he sets

    23 out coming as brothers to Brcko, learning of the

    24 blowing of bridges, and being given lists.

    25 Page 2. We can see that on his own evidence,

  36. 1 right-hand column, three lines down, his understanding

    2 was that as many Muslims as possible had to be killed

    3 and that Brcko should become a Serbian town. That

    4 account, of course, fits with the evidence of Witness

    5 K, central column, who saw the list on his desk and

    6 who, three lines up from the bottom of that passage,

    7 recognised prominent people as being named, well-known

    8 people. It fits with an answer given, foot of the

    9 page, central column, to Judge Riad. When Witness A, a

    10 year ago, was answering questions, he said: "Judging

    11 by what was happening ... Muslims ... needed to be

    12 killed and, if possible ... eradicated."

    13 Page 3. In his general defence, the

    14 defendant both acknowledged, right-hand column, middle

    15 of the page, that the people he killed were never given

    16 a chance to defend themselves and were completely

    17 helpless, but in his defence, two-thirds of the way

    18 down, said there was no one he could appeal to, and

    19 then when asked, "Did you protest or question the list

    20 you were given?" his answer was, "No, to be honest."

    21 Page 4, top of the page, right-hand column.

    22 I remind the Chamber that he was a party to the plan in

    23 the sense that he was informed. Just how low down the

    24 chain was he, this man who was informed in advance of

    25 what was planned? He told us, through his interview,

  37. 1 that he was at a checkpoint in Srpska Varos on the

    2 railway when, on the 3rd or 4th of May, he was taken

    3 for a special task.

    4 We can turn over page 5 and go straight to

    5 page 6. I remind the Chamber that he spent some time

    6 at the barracks threatening Muslim detainees. Second

    7 entry down, middle column, Witness G told you that his

    8 threats to them were that 70 per cent of them should be

    9 killed, 30 per cent beaten up, and maybe three per cent

    10 were all right. "All of you are going to come to me,"

    11 he said, "cursing their balija mothers." Only when

    12 that witness, Witness G, got to Luka was Jelisic

    13 recognised.

    14 The next entry from Witness N, at Laser, had

    15 him threatening to kill 80 Muslims, saying that he had

    16 killed 80 Muslims and threatening to kill all those

    17 before him.

    18 As to Laser, there's been some challenge, at

    19 some stage it being suggested, I think, he wasn't there

    20 introducing himself at Adolf, but at the bottom of this

    21 page, the right-hand column, the defendant himself

    22 acknowledged being at Laser, and he said there that the

    23 people were either in Laser or in number 13, and they

    24 all came from there to create the Luka camp.

    25 Over to page 7. The witnesses, in the middle

  38. 1 column, for about this period include the witness, and

    2 it's right at the top of page 7, this is Witness L,

    3 reporting his saying, "My name is Goran Jelisic, Adolf

    4 the second. The first one was in Germany and I'm Adolf

    5 2." That was when he took out a list and read some

    6 names.

    7 Further down the same page, in the middle, a

    8 claim overheard by Witness N that he'd killed 80

    9 Muslims and would finish them all.

    10 Then the passage of cross-examination, which

    11 of course advances not on the imagination of

    12 Mr. Greaves but on instructions he's given by the

    13 defendant, who said, "It is not accepted that Goran

    14 Jelisic went to the Laser company and identified

    15 himself as Adolf and that in that regard, that witness

    16 has got the wrong person ..."

    17 As I say, if you look to the right-hand side

    18 of this page, top entry, three lines down, the

    19 defendant himself, in interview, said he was taken to

    20 Laser as he didn't know how to get there. He offered

    21 to discuss Laser later on, if one looks at the foot of

    22 the page, but maybe that didn't go any further by way

    23 of admissions from him.

    24 Page 8, please. We come effectively to the

    25 first count, although it's probably the last count in

  39. 1 the list, Count 44. This man, so reluctant, as he

    2 would ask you to accept, to do what he was doing was

    3 reported by Witness N, the foundation of Count 44, to

    4 have said that the soldiers on his arrival at the Laser

    5 company were looking for members of the wealthy

    6 families whom he named. Other soldiers entered, and

    7 one identified himself as "Adolf from Bijeljina. He

    8 told us to put our valuables and documents on the

    9 table." Money, but not the documents, were picked up.

    10 We come then to the 6th of May, to what would

    11 appear to be an early or the earliest killing, the one

    12 that is evidenced by the sequence of photographs. The

    13 Chamber will recall not only the sequence of

    14 photographs, distressing as it is, but that that lane

    15 down which the defendant pursued his quarry already had

    16 at the end of it at least two bodies of men already

    17 killed. As to that, he said, this was a baptism of

    18 fire. Page 8, bottom entry, right-hand side. And he

    19 was told about the photographers being there to do it

    20 for him.

    21 Was it a baptism by fire? How had these

    22 other bodies come to be at the end of the same lane?

    23 May we go to page 10. I just look at the

    24 interpreters' booth to see that I'm not going too

    25 fast.

  40. 1 Page 10. We come to Count 6 and 7, the

    2 killing of Hasan Jasarevic. The witness in the middle

    3 describes the killing. Perhaps Witness Q's account is

    4 more interesting at this stage for what the witness

    5 said the defendant did immediately after killing Hasan

    6 Jasarevic. "After that he came to the kiosk and hit me

    7 on the head and the neck with his baton, pointed his

    8 pistol at me, started asking me about the Green Berets

    9 and the ZNG's, and starting cursing my Muslim mother."

    10 At the foot of the page, Witness P gives his

    11 account, which we find on page 11. This victim -- who

    12 can blame him -- started to cry and to plead about his

    13 wife and children. That worked for nothing, and the

    14 Chamber will have in mind what the defendant now relies

    15 on in interviews and with psychiatrists by way of

    16 protestation that if anyone pleaded with him he would

    17 rather shoot himself.

    18 Staying on page 11. The man from Sinteraj,

    19 the young man, as the right-hand column on page 11,

    20 four lines down, reveals, handed to Jelisic at the

    21 police station, killed with two bullets.

    22 Page 12, Count 10. The unhappy man known as

    23 Papa, who had plainly taken a part in local politics

    24 before the war. The evidence in the middle column, the

    25 answers of Witness J: He "had a baton and was beating

  41. 1 Papa, telling him to hurry, to move quicker, this was

    2 the last time he was seeing his town."

    3 The version -- the sanitised version of the

    4 defendant on the right-hand side, halfway down page

    5 12: "I was handed Ahmet Hodzic in front of the duty

    6 booth," and followed the same script. Three lines on:

    7 "I can't remember that I beat him. I don't think I

    8 did because it was not ordered to me to beat him."

    9 Then over the page, when the account of the

    10 witness is put to him, on our page 13, five lines

    11 down: "If that person had started begging or asking, I

    12 would rather have killed myself." Three lines further

    13 on: "If he had spoken one word to me, I would have

    14 done something to save him."

    15 Page 14, please. Count 12, the murder of

    16 Suad. The evidence from Witness J. The Chamber will

    17 remember the strong man relied upon to carry the bodies

    18 and then to be the last person to be killed. So his

    19 fitness saves his life and brings him here. He was

    20 able to describe the killing of this unhappy man who

    21 cried -- middle of the page on page 14: "What happened

    22 when he cried? Goran said he didn't like men who cried

    23 and ordered him to start off. The man begged to be

    24 left alive because he had a small child at home. Goran

    25 did not heed that."

  42. 1 On the right-hand side, asked about this, he

    2 accepted that he'd killed this man. About eight lines

    3 down on the right-hand side he said this of beating,

    4 denying the allegations of beating made about this

    5 killing: "If there were orders to beat someone, then

    6 it would be with a baton. I'm not much for beating

    7 people."

    8 At the foot of page 14, the waste of this

    9 live revealed in his own answers, page 30 of the

    10 interview: "I think Suad was younger, was a young

    11 person, but I couldn't come to any data on why he had

    12 been accused. My belief is that people who were held

    13 in cell 13 were either politically engaged ..." and

    14 then he goes on to deal with the families.

    15 Page 15. I remind the Chamber of how he

    16 cursed the Muslims he controlled as balijas; Witness J

    17 and Witness Q. Now, at the foot of this page, he

    18 ordered them to sing Serbian songs, beating those who

    19 failed.

    20 Over the page to page 16. Witness P, how the

    21 man made a mistake and would then be hit.

    22 The Chamber will be asking itself the

    23 question: How does this fit with what is advanced on

    24 his behalf as mitigating material?

    25 More of the same, at the foot of page 16,

  43. 1 from Witness Q, with the defendant conducting the

    2 Muslims with a baton and also saying that they could

    3 just be run over by a truck.

    4 Page 17, the murders of Korenjic and Lucic,

    5 not in the indictment, and admitted to by the

    6 defendant, as I said, going to a limited degree beyond

    7 what was necessarily formally proved against him.

    8 At the foot of page 17, aware of that

    9 refrigerator truck or trucks. So powerful an image in,

    10 I suspect, all our minds, although the Chamber may

    11 think that though the photographs of Jelisic shooting

    12 the men in the alleyway may be a powerful and

    13 unforgettable image, even that may pale into

    14 insignificance beside the view of the open grave which

    15 showed the overall callous disregard for life of which

    16 these killings was an integral part.

    17 Page 18, coming to the end of what happened

    18 at the SUP office. The Chamber will remind itself, and

    19 I needn't take you into the detail, of the man who was

    20 both murdered and disfigured, castrated before being

    21 thrown on the lorry.

    22 So at page 19 we come to Luka camp. Page

    23 20. He advanced in interview that the reason he was

    24 given the name "Adolf" was for the Motorola. That is

    25 an assertion not supported elsewhere and the Chamber

  44. 1 may doubt its reliability.

    2 In the middle of page 20. Witness A, a year

    3 ago, told us that this defendant claimed to have killed

    4 150 people.

    5 Page 21. The same witness saying, at the end

    6 of the passage transcribed, that only 5 to 10 of them

    7 there would be lucky enough to leave alive. Witness D

    8 speaking of the same point in time, the beginning of

    9 Luka, saying that as many balijas as possible should be

    10 killed, attributing that to the defendant.

    11 At page 22 there's more evidence summarised,

    12 including, in the evidence of Witness K, first the

    13 offensive remark that Muslims were reproducing to a

    14 great extent and that there was a lot of work to do to

    15 cleanse them. And in the second passage, in the middle

    16 of the page, where he explained how the defendant was

    17 the main figure in the camp, that everybody had to

    18 respect him, that he issued orders and wielded out

    19 fates. The witness told us that he repeated that he

    20 was the Serbian Adolf, copying the Nazi method of

    21 cleansing people.

    22 A different offensive description reported by

    23 Witness M, at the foot of that page: "Cleansing the

    24 Serbs of the extremist Muslims and balijas like one

    25 cleans the head of lice."

  45. 1 This imagination -- it may be childish in

    2 some ways -- is it the imagination of someone just

    3 acting under orders or does it show completely full,

    4 individual responsibility?

    5 Page 23, Count 14. Two men, one, as we see

    6 in the evidence of Witness G, in the middle of the

    7 page, dealt with as a person who cursed a Serb woman's

    8 mother, taken out. And if we go over the page to

    9 page 24, we can see in the evidence of the witness, in

    10 the middle of the page, how they decided, callously

    11 decided, which one was to be killed by whom, and how,

    12 on the right-hand side of the page, how the defendant,

    13 in dealing with this matter, explained that Jasminko

    14 Cumurovic was finished with by the inspectors, told he

    15 was dangerous, so he took him to the corner of the

    16 hangar and killed him. He said, "Even after this

    17 murder, I could not find out. Nobody wanted to tell me

    18 why this man was guilty."

    19 The evidence of this killing, of course,

    20 continued with the evidence from Witness M, who gave

    21 that graphic account -- was it just made up or was it

    22 entirely true? -- of the defendant forcing the man who

    23 was killed first to lick the defendant's hand, and then

    24 shooting him.

    25 I can move now, I think, more quickly, having

  46. 1 reminded the Chamber of much of the evidence. Page 26,

    2 the testimony of Danijel Ibrahamovic. Page 27, the

    3 killings of Huso and Smajl Zahirovic, the two brothers

    4 from Zvornik. At page 28 there's no evidence about

    5 that. He accepting the killing of only one of them, of

    6 course.

    7 We can go to page 30, just to remind

    8 ourselves of the reality of these acts. At the top of

    9 the page, Witness N, dealing with these brothers,

    10 giving Your Honours a graphic account of the beatings,

    11 the moanings, and the screams that were associated with

    12 such killings.

    13 Staying on page 30, the killing of up to five

    14 unknown men witnessed by Witness F, seeing a succession

    15 of people being taken around the corner of those

    16 buildings and shot. This all on the 8th of May.

    17 At the foot of the 8th of May, this unwilling

    18 executioner, as he would have you think he was, seen by

    19 Witness L counting money. And to remind you, at page

    20 31, the defendant said this: "He showed me an amount

    21 of money and said that a man had given him money so

    22 that he would not kill him." The defendant said: "I

    23 took the money and I killed him nevertheless."

    24 Staying on page 31, early evidence from

    25 Witness B taken, I think, by Mr. Tochilovsky, it may

  47. 1 have been Mr. Bowers, a year ago, and even with the

    2 diet of disturbing material that this Chamber, with its

    3 various compositions, must receive, evidence that may

    4 well have stayed with it, the three or four men called

    5 out time after time, one being selected by the

    6 defendant, his head placed on the grate, two others

    7 being obliged to carry him around the corner to the

    8 pile of bodies, reforming themselves as the remaining

    9 three people in front of the hangar from whom another

    10 would be chosen, dispatched, and carried, leaving two

    11 and sometimes one. The Witness B, who survived was it

    12 two or even three rounds of that particular form of

    13 roulette, perhaps being a most memorable witness for

    14 this Chamber.

    15 Over then now, please, to page 34, still on

    16 the 8th of May. According to Witness K, the defendant,

    17 in the lines of detainees, forcing them to sing Serbian

    18 songs.

    19 We turn on page 35 to the 9th of May, Counts

    20 18 and 19, the beating and killing of Naza Bukvic. A

    21 woman, as Witness G told us, in the middle of the page,

    22 sitting on the grass, being beaten by Jelisic,

    23 complaining that her brother was a sniper. His account

    24 of this, on the right-hand side: "Did he have any

    25 conversation," foot of the page, "before he killed

  48. 1 her?" He couldn't possibly. "I don't admit to it.

    2 I may have sworn at her. I may have cursed her," he

    3 says at the top of page 36. "I don't remember."

    4 That woman's father is the subject of the

    5 following counts, 20 and 21. The callous behaviour

    6 witnessed by Witness D, in the middle of the page,

    7 asked about the killing of this man, the witness

    8 explained that the unhappy Ahmetovic asked where his

    9 daughter was. Goran said: "You'll find out shortly."

    10 His explanation, he simply, on the right-hand side, he

    11 simply did the same to Naza. They were extreme

    12 nationalists.

    13 Page 37. The graphic and dreadful killing of

    14 the man carrying his own ear. Jelisic taunting the

    15 Muslims with the offer that they should kill him, the

    16 man begging to be killed, but Jelisic eventually doing

    17 it himself.

    18 It's worth noting, at page 37, on the

    19 right-hand side, last entry: "Personally I never fired

    20 at a dead body. There was no need for that." The

    21 Chamber will recall the last photographs in the

    22 sequence of photographs and ask itself questions about

    23 the accuracy of that statement.

    24 An unknown man is revealed as killed, at

    25 page 39, in the evidence of Witness D. This on the

  49. 1 9th of May. Accompanied, as we see, in the middle of

    2 the page, at the end of Witness D's transcript. "Did

    3 Goran say anything to the prisoner before he shot him?

    4 He did. What did he say? 'No reason why to waste time

    5 with you.'"

    6 The same death reflected further, at page 40,

    7 towards the evidence of Witness O, which is summarised

    8 in the middle of page 40, with Jelisic requiring that

    9 the man be held further to the ground so he couldn't

    10 move while he shot him.

    11 I turn over to page 42. To some degree, Your

    12 Honours, we have relied to very limited degree in this

    13 document on Annex 1, which was the material that

    14 accompanied the original guilty plea, and that explains

    15 the annotation for the 10th to the 12th of May, the

    16 beatings of those two people which, of course, was

    17 never the subject of evidence in this court. He

    18 accepts beating these two men.

    19 Further down the same page, 42, the man in

    20 his 70s killed by this defendant, too old, as the

    21 witnesses told you, to be a sniper. And, on the

    22 right-hand side, conceded by Jelisic as too old to have

    23 been a soldier, he saying he thought he was a political

    24 activist, despite his age.

    25 At page 43, you get some flavour of the

  50. 1 nature of the beating. About six lines down, a short

    2 metal shovel with a wooden handle was spoken of by

    3 Witness H. The beating was, of course, eventually

    4 followed by the death.

    5 On page 44, Counts 36 and 37, the beating of

    6 Mohamed Bukvic. The defendant's explanation,

    7 right-hand corner of page 44: "The order was to beat

    8 him up. Because it was known that his

    9 brother-in-law" -- I beg your pardon: "His brother,

    10 son-in-law would come to fetch him." Then in the

    11 middle of page 44, "I don't deny he was beaten."

    12 Page 47, the Chamber will want to be

    13 reminded, again about a graphic piece of evidence, of

    14 the woman in the red sweater. As to her, the evidence

    15 given by Witness E, was that she arrived at the camp in

    16 a red van, shouting and crying she was not guilty and

    17 had doing nothing. The defendant arrived shortly after

    18 in another vehicle. He had with him, the witness

    19 thought, a sawn-off rifle that we've seen, the weapon

    20 he typically used. And two-thirds down this page: "He

    21 walked in her direction", the Chamber will remember, I

    22 think, she was seated in the area, "Got her by the

    23 scruff of the neck, drew her to one of the officers,

    24 made her fall, pushed her so she fell against the kerb,

    25 and fired at the back of her head, thus dispatching her

  51. 1 from life," and that's repeated in the evidence over

    2 the page as well, but I needn't go into it.

    3 On page 48, there's the killing of a male

    4 nurse.

    5 On page 49, for about the 14th of May, some

    6 evidence of other killings are set out there and the

    7 beating of the Witness E himself. You can see in the

    8 central column of page 49 how somebody asked the

    9 defendant, "Shall this one beat him or the one in the

    10 black T-shirt?" The defendant gave instructions who

    11 should do the beating and, as we see further down the

    12 page, kicked him and beat him, despite protestations

    13 that the poor man, as he was judged to be, should be

    14 left.

    15 At page 50, I remind the Chamber that

    16 although, in a passage of his interview connected with

    17 Witness R, the defendant maintains he only ever signed

    18 and had access to one pass, that Witness E told you

    19 about and, I think, produced to you a pass signed

    20 "Adolf" that guaranteed his safe conduct. Indeed, as

    21 we can see at the foot of the entry for Witness E on

    22 page 50, Jelisic said that that pass meant that nobody

    23 would lay a finger on him, but he maintained, as I've

    24 already said, that he only ever issued one pass.

    25 What does his ability to issue passes in this

  52. 1 camp or from this camp show of his authority? Page

    2 51. We turn, on the 14th of May, to the arrival of the

    3 army major who stopped the killing, despite Jelisic's

    4 disquiet about that, and at the foot of 51, at about

    5 this same time, we come to Witness R himself. Just a

    6 few facts to remind you about for him. So 15.600

    7 Deutschemarks, some of which belonged to the religious

    8 community, were taken; the defendant doesn't accept

    9 that but the Chamber has seen how he was able to move

    10 about, buy things, and live without apparent work,

    11 apart from maybe being in the army thereafter.

    12 The Chamber will remember the details of the

    13 killing of three detainees. There's a difference

    14 between Witness R and Witness S. Is it because one or

    15 other or both of them have come here to lie to you, or

    16 is it because, as was raised as a possibility yesterday

    17 in this Chamber, circumstances so terrifying may lead

    18 to differences in detail of account but the substance

    19 will remain the same?

    20 If the substance is correct, this man, by way

    21 of show and display, killed three men to show off to

    22 that man of strong character whom he did not kill by

    23 the game of Russian roulette. Can there be any doubt

    24 that that was one, at any event, of his underlying

    25 motives in producing men and having them beaten and

  53. 1 killed in the way he did?

    2 As to the Russian roulette itself, did he

    3 click the trigger, as Witness S says? Did he not, as

    4 Witness R says, but rather say, "The Serbs need me" and

    5 take the gun away? Who would be likely to have the

    6 most accurate and vivid account? Who would be likely,

    7 in the circumstances in that terrifying room, to get it

    8 wrong, inaccurate?

    9 In any event, from everything that you have

    10 heard of this defendant, do you believe he would have

    11 the courage to take the risk of Russian roulette? A

    12 coward before the war, has there been anything shown to

    13 you to show you a man brave afterwards?

    14 He provided, of course, the pass for those

    15 people, and their ability to pass the checkpoints is

    16 something for the Chamber to consider. Does it fit

    17 with a man doing the menial but dreadful task of

    18 killing to the orders of others, or does his freedom of

    19 manoeuvre speak of something else?

    20 We can turn on to page 55. There's the

    21 killing of Adnan Kucalovic, Counts 38 and 39, dealt

    22 with in summary by Jelisic, at page 56, the right-hand

    23 side: "I went into the hangar to get him to ask, 'Is

    24 your brother in the Muslim army?' He didn't want to

    25 answer anything. I took him out of the hangar and

  54. 1 killed him."

    2 Smail Ribic, not on the indictment; Witness

    3 B, the first person to be killed.

    4 We're now out of the strictly chronological

    5 order of the indictment but slotting things in that

    6 have uncertain dates.

    7 Then we come to page 57. Now, from page

    8 57 -- no, I beg your pardon. Yes, page 57. We're

    9 still dealing with other killings, and I hope to move

    10 much more quickly.

    11 Witness B, I've already dealt with, the three

    12 or four volunteers at a time taken out of the hangar.

    13 Page 59. Further evidence that the Chamber

    14 will remind itself of from Witness A.

    15 The only other matter I can think of before

    16 the luncheon adjournment -- and I'm sorry not to have

    17 concluded, but perhaps I can make one other point about

    18 the evidence, see if there's anything else from this

    19 document that I need to review and then conclude my

    20 arguments by returning to the first document this

    21 afternoon, with your leave -- the only other piece of

    22 evidence that it might be helpful to remind you of at

    23 this stage is the evidence of the woman who came before

    24 you.

    25 You will remember, of course, that her

  55. 1 evidence was associated with the disappearance from the

    2 courtroom of the defendant after she'd given the first

    3 passage of her evidence and her desire to speak in his

    4 presence and not to give evidence in his absence. She

    5 spoke of her own dreadful treatment at the hands of men

    6 other than Jelisic, and she also spoke, as you will

    7 recall, of recurring beatings and killings of men

    8 produced, as it were, to her or in front of her,

    9 although she and the others had to look down, beatings

    10 that were apparently followed by death; evidence that

    11 fits, you see, with evidence that you've had from

    12 elsewhere, for example, from the imam; evidence that

    13 shows the Chamber may judge objectives oblique to the

    14 mere performance of someone else's orders and that

    15 speak volumes for the authority and independent acts of

    16 this man.

    17 I'm sorry not to have finished. We started a

    18 little later than we expected, and I will try and

    19 reduce what remains so that Mr. Greaves can have the

    20 majority of the afternoon.

    21 JUDGE JORDA: [Interpretation] Thank you very

    22 much, first of all, Mr. Nice. It's 1.00, and we will

    23 resume at 2.30.

    24 Court stands adjourned.

    25 --- Luncheon recess taken at 1.00 p.m.

  56. 1 --- On resuming at 2.45 p.m.

    2 JUDGE JORDA: [Interpretation] We can resume

    3 the hearing now. Please have the accused brought in.

    4 [The accused entered court]

    5 JUDGE JORDA: [Interpretation] Mr. Nice, you

    6 may proceed.

    7 MR. NICE: Thank you. I have only a few

    8 further references to the second document I presented.

    9 I'm starting at page 60, in some limited degree

    10 backtracking just to remind Your Honours about the

    11 evidence of Witness A, who dealt with the people being

    12 called out to be killed, who reminded you in his

    13 evidence about how people had to go out in the mornings

    14 to clear the blood from the grates, and who estimated,

    15 and this can be seen at the foot of page 60, about five

    16 lines up, that if he multiplied 25 to 30 by the groups

    17 of 4, dealing with the number of times people were

    18 taken out, why it was his calculation that some

    19 150 people must have been taken out and not returned to

    20 the hangar.

    21 Then over the page at 61, still in his

    22 evidence, we see part of one of his accounts of a

    23 killing, which is graphic, where the defendant was

    24 forcing people onto the asphalt, to keep their heads on

    25 that drainage grate so that he could kill them with

  57. 1 less inconvenience in the form of split blood.

    2 The same witness, in the middle of page 61,

    3 dealt with a particularly unpleasant incident where

    4 this man was speaking of a Muslim who was married to a

    5 Serbian woman, and I needn't necessarily defile the air

    6 with the precise way he expressed his opinion on that

    7 occasion, but it's there.

    8 Towards the foot of page 61, and I think this

    9 is very nearly the last page I deal with in detail, a

    10 few minor references hereafter, is an image that the

    11 Chamber may or may not have found particularly hard to

    12 dispel, not least because of the civilisation that is

    13 afforded to the defendant both here in court when he is

    14 granted water whenever he wants it, and as we heard

    15 from the psychiatric examiner, interestingly granted

    16 refreshment again, specifically whenever he wanted it,

    17 said to be demanding in respect of that. The Chamber

    18 will recall the file of men crossing the alley to get

    19 their water in fear. I think they went by threes, did

    20 they not? And one man dropped his bottle of water

    21 because it was wet, no doubt out of fear. That alone

    22 sealed his fate, and he was called to the grate by

    23 Jelisic and killed.

    24 Now, unless that evidence is entirely false,

    25 the figment of the witness's imagination, it is

  58. 1 evidence that is completely at odds with any and every

    2 assertion by this man that he was simply acting

    3 according to orders.

    4 So we can move to page 63, centre of the

    5 page, the period after the 18th of May, 18th, 19th of

    6 May, when the camp had fallen under the command of

    7 Monika's brother, his young girlfriend's brother.

    8 According to the witness Didic, he still attended, did

    9 Jelisic, and came back and looked around, and indeed in

    10 his interviews, I'm afraid I don't have the page

    11 immediately at hand, he in his interviews acknowledged

    12 that after the killings he went back to look at the

    13 prisoners. You will recall evidence of one of the

    14 witnesses saying how he broke in, frustrated, you may

    15 think, at the interdiction against further killings and

    16 expressed his desire to kill again.

    17 We see at the foot of 63 the beginning of the

    18 account of the beating of Amir Didic, Counts 40 and

    19 41. Because of the comparatively lesser offence that

    20 it is I'll take less time with it, but, nevertheless,

    21 you will notice at page 64 the sanitised version

    22 emerging, the witness speaking of the degree of the

    23 assault, Coca-Cola bottles broken against his head,

    24 beaten until he fainted, with, on the right-hand side,

    25 the defendant acknowledging no more than hitting with a

  59. 1 baton, never using any of the other weapons spoken of

    2 by the witness.

    3 Page 67, if the Court would be so good. The

    4 chart simply deals with the evidence of the mass

    5 graves, which, in a sense, is not so relevant, save to

    6 say that you can see, and this is a passage I referred

    7 to earlier, that in his interview on the 23rd of July,

    8 Jelisic was being kept informed at the end of 1992 or

    9 1993, as he would say, with what was known not about

    10 the original depositing of the bodies but of the

    11 removal of the bodies. The Chamber may recall the

    12 evidence of the exhumations, that there was the

    13 clearest possible evidence of graves being robbed, no

    14 doubt with the purpose of obscuring from investigators

    15 of this institution where they might otherwise be

    16 found. So he seemed to be being kept informed.

    17 At page 69 and following, we have a

    18 compilation of extracts from the transcript that may go

    19 to demonstrate de facto authority or control in Luka.

    20 I've touched on many of them already. I'll just draw

    21 your attention to a couple more.

    22 On page 69 itself, a third of the way down,

    23 Witness B describing the defendant as not only being

    24 boastful and arrogant, but line 2, expressly saying he

    25 was the boss there.

  60. 1 Over at page 70, at the foot of the page,

    2 Witness I, in answer to a question from our Presiding

    3 Judge to the effect: "Was the impression of directing

    4 operations or of having things carried out on the

    5 orders of others," the witness gave this answer: "I

    6 could say that he was both. He carried out orders but

    7 also selected his victims through his own free will.

    8 He could have not shot someone even if he were told to

    9 do so, but he did quite a few things on his own."

    10 At page 71, at the top, Witness A's account

    11 of Jelisic saying he was the director of the collection

    12 centre, determining who would be brought there and

    13 interrogated, who would be killed, who would be

    14 released, words to the effect that there was not a

    15 single balija who was not guilty, in the defendant's

    16 belief.

    17 And then the second extract from the same

    18 witness dealing, "... after one balija less," with the

    19 witness's observation: "I don't think this was killing

    20 on orders. I think this was killing out of pleasure,

    21 out of some kind of hate against my people."

    22 Towards the foot of the page, the graphic

    23 evidence from E, hard almost to accept unless one

    24 abandons civilisation and recognises what was going on

    25 there. And is there any reason that he would make this

  61. 1 up? He said that a man came in -- another man came in

    2 and said to Adolf that a victim's ears, and nose, and

    3 eyes had been cut or gouged. Adolf's reply was to go

    4 and kill the man who on that account was still living.

    5 At page 73, there's a collection of the

    6 passages where Jelisic has dealt with the number of

    7 Muslims he claims to have killed, and one can see the

    8 figures, casting one's eyes down the page, "80," "53,"

    9 "54." At the bottom of the page, saying once,

    10 "... I've killed seven people so far ... another

    11 eight, and that will do for the day."

    12 Over the page at our page 74 and in the

    13 middle of the page. There is reference to the

    14 percentages who would survive and his expectation that

    15 once they had survived, they'd see him in town and buy

    16 him a drink.

    17 Further references to number, the number 68,

    18 in particular, from Witness F. At the foot of the

    19 page, this graphic account: "... as the Serb Adolf

    20 turned over his automatic gun ... to a person ... going

    21 by the name..." the name is given, saying, "There. Now

    22 is your chance to make a notch on the butt, because

    23 after you kill your balijas, your Muslim persons, then

    24 you should know the number..." and he went off to have

    25 a drink and this other man would relieve him.

  62. 1 On that same page, page 75, just over halfway

    2 down, from Witness L: "Yes. He said to me that in the

    3 morning, when he would get up, before he would take his

    4 coffee, he'd have to kill 20 to 30 people."

    5 At page 76, under a collection of transcript

    6 passages dealing with anti-Muslim behaviour, a man who

    7 claims he was acting only under orders, from Witness F,

    8 picking up a man on his knees, saying, "I must be

    9 crazy. I'm helping a balija to stand up and I've got

    10 my hands soiled."

    11 There are various other passages quoted there

    12 to remind the Chamber if it finds them helpful.

    13 At page 81, dealing with the proposition that

    14 he was not the person with authority, Witness R, at the

    15 foot of the page, told you -- this is for the 15th of

    16 May or thereabouts -- that he had a folder, a

    17 plasticised folder. He opened it and with a pencil

    18 made circles around names, and then went through that

    19 page quickly, circling other numbers.

    20 Was he really a man without the ability to

    21 exercise his own initiative, this man who, at any time,

    22 could travel freely around Brcko, past the

    23 checkpoints?

    24 Then finally for this document, page 82. In

    25 the enjoyment, if that is the word, of killings and his

  63. 1 inability to be tired of what he was doing, from

    2 Witness B, this description: "... I think that he took

    3 pleasure in doing this because he was so powerful, he

    4 was viewed as a god. It was nothing for him to kill a

    5 man. He believed himself to be the most powerful

    6 person in the world, and he was, in Brcko. I cannot

    7 understand this. He was a young man, a handsome man,

    8 and to do this ..."

    9 Witness F describes how, following a killing,

    10 or just before one, I can't remember which, he and the

    11 other guards would meet and laugh heartily, and the

    12 same witness, towards the end of the page, another man

    13 speaking to him offered to take over and to give the

    14 defendant a rest, the defendant replying that this was

    15 a job which he didn't find difficult. When he felt

    16 like having a drink, he would count on that other man's

    17 offer of help.

    18 Can I respectfully invite the Chamber to

    19 return to the other document which we left at page 21

    20 and which I will be able to conclude, by further cuts,

    21 quite swiftly.

    22 We were at paragraph 49. We've passed that

    23 schedule of evidence. Discriminatory behaviour is, of

    24 course, a constituent element to some offences, and the

    25 degree of discriminatory element may be an aggravating

  64. 1 factor. I don't need to read the rest of that

    2 paragraph; I've summarised all the material in dealing

    3 with the evidence.

    4 At the foot of page 22, I deal very shortly

    5 with the limited evidence there is of what happened

    6 afterwards.

    7 At page 23, we hear from Dr. Duits about his

    8 leaving the camp, allegedly confessing to the Muslim

    9 lawyer, from whom we've heard nothing, of his going

    10 home; of his wanting to inform an international

    11 organisation, if any of this is true, and unless that

    12 relates to our Witness Q; of shooting himself in the

    13 foot. You've already heard this morning how the dates

    14 in September 1992 are rather later than one might have

    15 thought. He was already in the army. One document

    16 shows the left side, another the right. The report

    17 from the doctors, of course, says nothing about this

    18 being any self-inflicted act.

    19 I repeat, paragraph 52 of this document, that

    20 the Defence evidence generally is capable of the

    21 interpretation that the defendant may, to a degree,

    22 have been setting up witnesses. If so, that aggravates

    23 the position for him.

    24 Gravity of the offence. The Trial Chamber,

    25 in our respectful submission, must consider the

  65. 1 gravity, and the Tadic Trial Chamber observed at

    2 sentencing that the specific harm caused to victims and

    3 their families by the defendant is of paramount

    4 importance. There are numerous, if not innumerable,

    5 victims of this man's crimes.

    6 In the Tadic case itself, the degree of

    7 victimisation is significantly less than in this case,

    8 it may be the Chamber will conclude, and the

    9 involvement directly in killings are on an entirely

    10 different and lesser scale.

    11 Comparisons of suffering may be difficult,

    12 but the Chamber will, no doubt, have consistency with

    13 other sentences in mind when it sentences this man, and

    14 in evaluating the gravity of the offence, the Trial

    15 Chamber must consider the suffering, physical and

    16 psychological, of all victims. May we respectfully

    17 say, not, as it were, specifically to this Chamber, but

    18 as a problem facing sentencing judges around the world,

    19 and particularly here, that there is a danger that time

    20 spent analysing the psychological state of the

    21 defendant reduces the focus of attention that should be

    22 on the dead and on surviving victims, whose suffering

    23 either cannot be, because they're dead, or has not

    24 been, because there is never the time, tested, save to

    25 a very limited degree, yet it is those victims, dead

  66. 1 and surviving, whose interests should come first.

    2 The defendant has committed several acts

    3 constituting crimes against humanity judged by the

    4 Chamber recently as a more serious offence than an

    5 ordinary war crime and should ordinarily entail a

    6 heavier penalty. I'm alive, I think, to the existence

    7 of the minority decision of Judge Robinson on that

    8 topic.

    9 Paragraph 55. The defendant committed crimes

    10 with particular cruelty in a merciless manner, we've

    11 gone over all that, but in this paragraph, it may be

    12 worth proposing that he is clearly revealed as

    13 intending to cripple their psyches and destroy their

    14 personalities.

    15 I omitted to mention this morning, but the

    16 Chamber may recall, that the woman we referred to, the

    17 woman whose evidence the defendant nearly avoided or

    18 missed, spoke not only of seeing the men beaten and

    19 then taken out and killed, but she spoke of how Jelisic

    20 said, "Those who are left will be there only for menial

    21 jobs. You," and she was a professional woman, no

    22 longer able to work as a result of all this, no longer

    23 able to pursue her caring profession, "You," he

    24 said, "will never work in that occupation again."

    25 We can only hope that he was wrong because,

  67. 1 of course, it is possible that the cathartic exercise

    2 of coming here will have helped her in her recovery,

    3 but until today's date, for different reasons, he's

    4 turned out to be right.

    5 Nothing was done to protect these detainees

    6 who were at the mercy of the defendant and much to

    7 abuse them.

    8 Paragraph 56. I think I'm following the

    9 criteria set out in Tadic to a degree. The murders and

    10 beatings of the detainees in Luka was part of a wider

    11 pattern of extermination, as Mr. Ralston told us, and

    12 when survivors were released, they couldn't stay in

    13 Brcko, they had become refugees with no residence or

    14 property and a small chance of employment, many being

    15 transformed from independent, self-sufficient citizens

    16 to those dependent on the largess of others. Almost

    17 none have returned to Brcko, and although, of course,

    18 this defendant is not in any way responsible for

    19 everything that those victims lost, as the Tadic

    20 Chamber has found, the general environment may be

    21 considered as relevant to the increased infliction of

    22 pain.

    23 Personal history. We are encouraged, I

    24 think, to deal with this. We have dealt with it

    25 substantially already. In paragraph 57, acknowledging

  68. 1 as a possibility that youth and personality problems

    2 might, in other circumstances, be considered in

    3 fashioning an appropriate sentence, the Prosecution's

    4 position is that these long-standing problems, first of

    5 all, do not permit the Chamber to say that he is not a

    6 continuing danger to society and would respectfully

    7 invite the Chamber to be aware of hypothetical

    8 questions about his behaviour in future circumstances,

    9 whether in war or peace. That is hardly to the point.

    10 By his personality, he is capable of being a

    11 danger, and it is not possible to say he is not. In

    12 any event, for the purposes of retribution for him and

    13 deterrence for him and others, the crimes are of such

    14 gravity as to deny the man benefit from his

    15 personality.

    16 Role of offence, under paragraph 58, is

    17 another factor to be considered. I think we've

    18 probably covered that fully already.

    19 Page 26, paragraph 59. Policy considerations

    20 in favour of strict punishment. Paragraph 60. The

    21 deterrence function of the International Tribunal

    22 should be the main guiding policy principle for

    23 sentencing determination. In the recent Tadic

    24 sentencing judgement, the Trial Chamber said: "The

    25 unique mandate of the International Tribunal of putting

  69. 1 an end to the widespread violations of international

    2 humanitarian law warrants particular consideration in

    3 respect of the purpose of sentencing."

    4 Citing the Celebici case and making reference

    5 to ICTY and ICTR case law, the Chamber emphasised that

    6 "... deterrence is probably the most important factor

    7 in the assessment of appropriate sentences for

    8 violations of international humanitarian law."

    9 The Erdemovic sentencing judgement highlights

    10 the overriding importance at stigmatising the most

    11 serious violations of international humanitarian law

    12 through sentencing.

    13 Further, the Chamber can consider the general

    14 practice for prison sentences in the courts of the

    15 former Yugoslavia as guidance but not as anything that

    16 is in any way binding. Capital punishment existed at

    17 the time, although it has been abolished by

    18 constitutional amendment in certain Yugoslavia

    19 republics other than Bosnia and Herzegovina. It is

    20 argued, I think, in Tadic, that the most directly

    21 applicable statutory provisions of the former

    22 Yugoslavia are those under crimes against peace and

    23 international law, which deal with a number of criminal

    24 acts, including killings, tortures, inhumane

    25 treatments, and so on.

  70. 1 Providing that they shall be punished by no

    2 less than five years strict imprisonment or by the

    3 death penalty. The code that sets out that offence or

    4 that punishment sets out factors to be taken into

    5 account, to be found at the top of page 28, legal

    6 limits for the punishment of the offence; purpose of

    7 punishment; circumstances which influence severity;

    8 degree of criminal responsibility; motives; intensity

    9 of threat or injury to the protected object;

    10 circumstances of the commission of the offence;

    11 perpetrator's past life; perpetrator's personal

    12 circumstances and his behaviour after the commission of

    13 the offence, a catalogue for which, in our respectful

    14 submission, the defendant is incapable of finding

    15 material to fill any element of that catalogue,

    16 significantly or at all.

    17 The Tadic sentencing judgement referred to

    18 the importance of reconciliation, saying the unique

    19 mandate of the International Tribunal, contributing to

    20 the restoration and maintenance of peace in the former

    21 Yugoslavia warrants particular consideration in respect

    22 of the purpose of sentencing, a significant factor in

    23 the case against a defendant who is known widely and

    24 perhaps throughout Bosnia and Herzegovina as a mass

    25 killer, who referred to himself as the Serbian Adolf.

  71. 1 Paragraph 66 sets out what is perhaps obvious

    2 and already stated about the purposes of these

    3 proceedings. I turn to paragraph 67 on page 29. The

    4 defendant seeks an advantage from his position, as he

    5 asserts, low in the chain of responsibility. We invite

    6 the Chamber to have in mind that in any war, military

    7 and political leaders need willing executioners to do

    8 their criminal acts for them. They keep their hands,

    9 the leaders that is, keep their hands clean. Without

    10 enthusiastic executioners like this defendant, the

    11 crimes would never occur. The aims of the criminal

    12 leadership could and would be thwarted.

    13 This Trial Chamber has a unique opportunity

    14 to send a strong message to all perpetrators, at

    15 whatever level in a chain of command, that commission

    16 of crimes like these brings vulnerability, for all who

    17 are involved, to the full weight of international

    18 justice.

    19 In the event, contrary to the thrust of our

    20 submission, that the Chamber accepts that the defendant

    21 performed any good acts after the killings in Brcko, it

    22 may be prudent to recall the wisdom of the Nuremberg

    23 jurisprudence, which explained how it is not an unusual

    24 phenomenon in life to find an isolated good deed

    25 emerging from an evil man. Because of convenience,

  72. 1 caprice, or even a sudden ephemeral gleam of

    2 benevolence forcing its way through a calloused heart,

    3 even a murderer can help a child to safety. A grim

    4 humour can cause a slayer to save his intended victim.

    5 But whatever the cause which motivated "X's benevolence

    6 to Y," the quotation continues, the kind deed is not

    7 enough to obliterate his indifference to the wholesale

    8 suffering of which he could not but be aware, and to

    9 alleviate which, in spite of his protestations, he did

    10 little or nothing.

    11 There is no evidence suggesting that the

    12 defendant displayed benevolence at Luka camp. Even if

    13 he had done so, it could not have obliterated the

    14 extreme gravity of his criminal acts for which he has

    15 been convicted.

    16 The sentence on the defendant, in our

    17 submission, should reflect the magnitude of the

    18 horrifying crimes that occurred and the suffering that

    19 was caused by him. He cries out effectively for

    20 mercy. He showed none. World opinion, it might be

    21 safe to conclude, would not want him to be shown any,

    22 and it is our submission that this Chamber should show

    23 him none and should impose on him the maximum sentence

    24 of life imprisonment.

    25 Unless I can assist the Chamber further, that

  73. 1 concludes our submissions.

    2 THE INTERPRETER: We do not have the Judge's

    3 microphone.

    4 JUDGE JORDA: [Interpretation] We thank you.

    5 It's 20 after 3.00. Without any further ado, we will

    6 give the floor to Mr. Greaves for the Defence of Goran

    7 Jelisic.

    8 Please proceed, Mr. Greaves.

    9 MR. GREAVES: In opening, what I have to say

    10 to Your Honours this afternoon, I firstly wish to make

    11 three points. I firstly wish to take up my learned

    12 friend Mr. Nice's observations the privilege of

    13 practising in this Court. I have been fortunate enough

    14 to be involved in two substantial and significant

    15 trials before this Tribunal. I hope, although others

    16 may disagree, that I have made a modest contribution to

    17 its jurisprudence in one or the other trial.

    18 I was brought up to believe that the task of

    19 Defence counsel, indeed his role that he had to play in

    20 the criminal process, had one aspect which was

    21 particularly important, and that is that he must at all

    22 times stand up as a bulwark against the overwhelming

    23 power of a potentially oppressive state, and with all

    24 the facilities and faculties at his disposal,

    25 fearlessly yet properly to advocate the cause of his

  74. 1 client.

    2 In opening his address to Your Honours, my

    3 learned friend was helpful enough and kind enough to

    4 draw to Your Honours' attention the numerous members of

    5 the Prosecution team. I ask Your Honours to remember

    6 this: This is a trial of a single defendant, not a

    7 multiple-defendant trial. The point I have to make is

    8 this: He identified to Your Honours the extensive and

    9 substantial team that he has available to him: Leading

    10 counsel; co-counsel; assisted when required, at the

    11 drop of a hat by Mr. Bergsmo; a legal officer; a case

    12 manager; two investigators; and another person who,

    13 whilst counsel are doubtlessly occupied in court, is

    14 beavering away in the background producing documents;

    15 and then finally, some interns working free, adding

    16 their shoulders to the wheel; and he perhaps forgot to

    17 mention interpreters, who are employed by the Office of

    18 the Prosecutor as and when required, none of these

    19 restricted in any way as to the amount of time that

    20 they can spend on the preparation of the case.

    21 Well, I'm going to draw to Your Honours'

    22 attention and commend, where it is appropriate, those

    23 members of the Defence in the way that my learned

    24 friend so kindly commended his colleagues.

    25 Leading counsel Mr. Londrovic; myself; legal

  75. 1 assistant Mr. Babic; one investigator; an interpreter,

    2 the long suffering Ms. Zivkovic, who has had to put up

    3 with my poor temper and tantrums from time to time.

    4 That's it. The legal assistant who has not been

    5 permitted to come to The Hague upon payment by the

    6 Tribunal. If we wanted him to come here and have his

    7 services here at the trial we were going to have to pay

    8 for it. The total hours that he was permitted to work

    9 restricted to 250. My interpreter, a constant battle

    10 to get hours permitted for her to work for me, and a

    11 struggle even to have her allowed to enable me to

    12 communicate with my client during the course of the

    13 trial. During non-trial periods counsel is restricted

    14 to 23 hours' work of paid work a week, and as we speak,

    15 there are plans afoot to restrict yet further the paid

    16 work and paid working conditions of the Defence.

    17 It is for others who listen to what I say to

    18 judge whether that even begins to look like genuine

    19 equality of arms. I have my own view of that

    20 particular aspect.

    21 The second matter is this -- and it concerns

    22 an extremely important issue in this case -- it goes to

    23 the issue of the medical reports: The Defence, and I

    24 am grateful to my learned friend in what appears to be

    25 an apparent concession that this is so, have plainly

  76. 1 been put at a serious disadvantage as regards the

    2 presentation of medical evidence in this case. The

    3 Prosecution have been allowed to utilise the services

    4 of a psychiatrist who was placed under no restrictions

    5 either by the Registry or by the doctor herself as to

    6 whether that witness could quote and rely upon her

    7 examinations, diagnoses, and treatment in coming to the

    8 conclusions which he did in his report, and it is a

    9 matter of note that the Prosecution relied specifically

    10 upon some of the doctor's statements. I refer Your

    11 Honour to the transcript in today's hearing at pages 26

    12 and 27; 26, line 21 to 27, 9.

    13 In our submission, these circumstances render

    14 it unfair that the Prosecution should be allowed to

    15 rely upon that report and upon the evidence of

    16 Dr. Duits, procured as it was under the circumstances

    17 considerably more advantageous than those afforded to

    18 the Defence. To do otherwise, we submit, would be a

    19 clear and unambiguous breach of the fair trial

    20 provisions that are guaranteed to the defendant under

    21 Articles 20 and 21.

    22 And I remind Your Honours that you have

    23 significant powers not just to evaluate evidence but to

    24 exclude evidence if so doing is required by the need to

    25 ensure a fair trial, outweighing any probative value

  77. 1 that evidence may have.

    2 The third matter is this: Shortly before

    3 Your Honours came into court this morning, the

    4 Prosecution produced to the Defence what amounts to 130

    5 pages of documentation, which has also been placed

    6 before Your Honours. There was, as I understood it, an

    7 order in this case that there should be no written

    8 briefs, and that was a matter that was discussed at the

    9 Status Conference. We were told yesterday that a

    10 skeleton argument would be produced for Your Honours.

    11 We note the document has been produced. We note that

    12 the size and the fact of its presentation has elicited

    13 no comment from Your Honours. Beyond that, we do not

    14 comment upon it.

    15 I turn now to the matters that involve the

    16 defendant directly. Seven and a half years after the

    17 events which erupted in north-eastern Bosnia, Goran

    18 Jelisic must now face the consequences of what he did

    19 and pay an inevitable price for what took place in

    20 Brcko in May 1992.

    21 We wish to make it plain that anything we say

    22 today is intended in no way to diminish the gravity of

    23 the taking of human life; in no way to diminish the

    24 gravity of ill-treating one's fellow human beings; in

    25 no way to diminish the gravity of the consequences for

  78. 1 the families and friends of those who are left behind.

    2 Goran Jelisic has, today and on the date which Your

    3 Honours sentence him, to face up to that, and he knows

    4 it and accepts it.

    5 It must, however, be said that despite what

    6 the Prosecution has said about this matter, that until

    7 the 8th of November of this year, Your Honours and the

    8 public had only heard one side of the character and

    9 life of Goran Jelisic. One of the tasks I have set

    10 myself today is to present to Your Honours another more

    11 balanced side of this young man.

    12 We must cast our minds back to May 1992. We

    13 have heard in this case a considerable degree of

    14 evidence about the kind of person that Goran Jelisic

    15 was until war broke out in his country. In 1992, Goran

    16 Jelisic was still a young man, then aged 23. We

    17 respectfully submit that his age is one matter that you

    18 should properly and carefully consider. By all

    19 accounts, whatever the problems of his homelife may

    20 have been, he comes from a decent and respectable

    21 family, and no one who had met the parents and sister

    22 of the defendant could gainsay that proposition in any

    23 way.

    24 Until war erupted in the spring and summer of

    25 1992, Goran Jelisic was someone who had lived an

  79. 1 essentially ordinary life, albeit interspersed with

    2 moments of criminality. During the past three weeks,

    3 we have heard a considerable body of evidence that

    4 before the war he lived the kind of life that countless

    5 young men across Europe live today. He liked girls.

    6 By our lights, he makes inappropriate comments about

    7 them, though no one is prepared to make any sort of

    8 convention to him coming from a different culture where

    9 such remarks may still be thought acceptable. The

    10 Prosecution would have you believe that that is a

    11 damning and unredeeming feature of this defendant, but

    12 sadly, the Prosecution is wilfully blind to any sense

    13 of normality in this young man.

    14 He liked to hang around the bars of Bijeljina

    15 with his circle of friends. He liked to drink. He

    16 liked to smoke and he liked to party with his friends.

    17 He was a passionate fisherman. He was employed, by and

    18 large. Not a good job, but there's no sign that he was

    19 anything other than a perfectly normal man in his early

    20 20s. I say that; of course, he got in trouble with the

    21 police, but that's not unusual in this modern age of

    22 ours.

    23 It may well have come as a surprise to Your

    24 Honour to learn the extent to which he was a friend of

    25 and fraternised with the Muslim community. The

  80. 1 stereotypical view that one can have of the events that

    2 took place in Bosnia and Herzegovina in the early and

    3 mid '90s is one of unrestrained and deep-seated ethnic

    4 dislike. Of course, that's not true. Before these

    5 things happened, people were quite content to mix

    6 across ethnic lines and indeed that is very much the

    7 history of Bosnia itself. Those who are keen on Bosnia

    8 as an idea will emphasise to you that that was an

    9 important feature of its culture, and I can recall

    10 being lectured firmly about that by Edina Residovic,

    11 who appeared in the Celebici case, who is a staunch

    12 supporter of her country and of the fact that it is a

    13 multi-racial or was a multi-racial and multi-ethnic

    14 society.

    15 We submit that prior to the war, this

    16 defendant was, in fact, someone who had exhibited

    17 absolutely no sign whatever of ethnic hatred, ethnic

    18 dislike at all. It goes beyond that. He actively

    19 sought out the friendship of Muslims, and there is

    20 abundant evidence, you may think, that the vast

    21 majority of his friends were, in fact, Muslim. There

    22 is, you may think, no evidence whatever to contradict

    23 that proposition. The Prosecution dismisses, that

    24 saying, "Well, everybody was friendly in any event,

    25 and, therefore, it doesn't count." They've, remember,

  81. 1 missed the point, we submit, because the point is

    2 this: The evidence in the case is he was friendly to

    3 Muslims before the war; he was friendly to Muslims

    4 during the war; he was friendly to Muslims after the

    5 war. So there is a degree of consistency.

    6 Of course, they have to attack the first part

    7 to demonstrate that during the war and after the war

    8 his acts of kindness to the Muslims were simply

    9 self-serving acts designed to set up somehow a defence

    10 or mitigation for the offences which he had committed.

    11 The fact of the matter is his friendship with Muslims

    12 is a consistent one and one which stretches back

    13 throughout his adult life. That, we submit, is an

    14 extremely important feature of this case.

    15 There is no evidence in the case, we submit,

    16 that prior to the war this defendant ever showed a

    17 single racist attitude, said anything with a racist

    18 connotation, did anything to anybody which had a racist

    19 connotation to it. You may think that he was, in fact,

    20 entirely lacking in such thoughts. It is at that point

    21 that the Prosecution have a difficulty because they

    22 have not even begun to try and explain how it is that

    23 suddenly, for a period of perhaps only 18 days, in May

    24 1992, Goran Jelisic suddenly changed and became a

    25 blood-thirsty killer, glorying in his trade, and then

  82. 1 suddenly, when he ceases to be occupied in that

    2 business, he reverts to having his Muslim friends whom

    3 he helps, in some cases, by ferrying them across the

    4 river at considerable personal risk to himself. They

    5 have not explained that. They have not demonstrated

    6 any reason why that should be so.

    7 There is no evidence in this case whatever

    8 that before the war Goran Jelisic took part in

    9 politics, in particular, in the brand of politics which

    10 could be described as hardened and ultranationalist,

    11 that has given rise to so much of the

    12 nasty brutishness, which those of us who have been

    13 involved in these cases have heard far too often.

    14 Of course, when considering Goran Jelisic as

    15 a person, it's right to say that there did come a time

    16 when he went off the rails. There is nothing unusual

    17 in that. Those of us, like my learned friend for the

    18 Prosecution, who have practised for many years as

    19 advocates in the criminal courts, both as prosecutors

    20 and defenders, we have come across hundreds of

    21 defendants like Goran Jelisic who have gone from

    22 hitherto blameless existence and blameless lives into a

    23 cycle of substance abuse and criminal activity designed

    24 to support that habit. In that sense, Goran Jelisic is

    25 not unlike many other young men across Europe. It's

  83. 1 all too familiar a picture.

    2 The fact is there did come a time when he

    3 engaged in serious criminal activity and he started to

    4 deal dishonestly in cheques. He was caught,

    5 prosecuted, and sentenced for those crimes. An

    6 interesting feature of this, and something for which

    7 both he and his witnesses are castigated, is that he

    8 concealed it from his friends, and some effort has been

    9 made by the Prosecution to belittle the judgement of

    10 those friends and to challenge the closeness of such

    11 friendships because they were unaware that their friend

    12 had slipped into that activity.

    13 We submit that that is an unrealistic and

    14 unfair approach to take. In the real world, there are

    15 many who conceal activities of that kind, and who in

    16 this room has never heard of a case where it's suddenly

    17 revealed that some person, otherwise thought to be

    18 upright and decent and law-abiding, is in fact

    19 discovered to be in serious trouble with the law, to

    20 the utter astonishment of family, friends, and

    21 community?

    22 In this case, we submit that friends of Goran

    23 Jelisic were essentially decent people. It comes as no

    24 surprise, perhaps, that Goran Jelisic sought to hide

    25 from them, those decent people, that he was in fact

  84. 1 living a life of crime. That, prior to May 1992, was

    2 indeed the dark side of Goran Jelisic.

    3 Then came the events of spring and summer of

    4 1992. Yugoslavia, a strong and cohesive and unified

    5 entity for a long time, suddenly sprang apart, and

    6 suddenly the people of towns like Brcko found

    7 themselves having to choose one side or the other.

    8 People who had been friends or neighbours for years

    9 found themselves on nominally opposing sides in a

    10 thoroughly nasty and brutish civil war.

    11 No one would deny for a moment that Goran

    12 Jelisic played a role, and a serious role, in the

    13 nastiness and brutishness which that conflict threw

    14 up. The Prosecution paints a picture of Goran Jelisic

    15 at that time in but one colour. They say that for a

    16 short period, he was an enthusiastic, willing, and

    17 glorying killer, killing Muslims, although it's not

    18 entirely explained why he should suddenly have become

    19 that. They say he has no redeeming qualities at all.

    20 They accuse him of lacking remorse and of profiting

    21 from the situation of Muslims. It's been their

    22 position all along, and, no doubt, they felt that, with

    23 the evidence they were proposing to present, they were

    24 onto a sure thing.

    25 We respectfully submit that, unfortunately

  85. 1 for that proposition, evidence has in fact been

    2 presented to this Tribunal which undermines the

    3 Prosecution's position. We say that the facts are

    4 these and are inescapable:

    5 There, as I have described it, was his circle

    6 of friends, a preponderance are Muslim. During the

    7 war, there is evidence that he went out of his way to

    8 give help to Muslims, not just to those who were his

    9 friends but, on some of the evidence, to those whom he

    10 did not know. On some occasions, and this may well be

    11 a matter of common sense given the attitudes at the

    12 time, he gave that assistance when there was a direct

    13 and immediate risk to himself. At all times, there

    14 was, you may think, a general risk that he would be

    15 identified within his community as someone who was far

    16 too friendly with Muslims and who was actively helping

    17 them.

    18 The question is this: Why would he take the

    19 risk of possible death or serious repercussions in an

    20 attempt to set up, as the Prosecution suggests, some

    21 sort of mitigation for himself? You may think that he

    22 was plainly at risk of being arrested, of being

    23 investigated as a spy or collaborator, or being beaten

    24 or killed because of the help which he gave to people,

    25 and witnesses made that risk perfectly clear.

  86. 1 After the war, he continued to give that

    2 help, not in a minor way but in a way that continued to

    3 expose him to the risks of the kind that I have set

    4 out. We say that the evidence which was presented on

    5 the defendant's behalf, evidence from those Defence

    6 witnesses about that aspect of the defendant's life,

    7 completely undermines the picture the Prosecution seek

    8 to present.

    9 The problem, we say, for the Prosecution is

    10 that their version of Goran Jelisic is simply

    11 inconsistent with the reality, and let me point to one

    12 aspect of what happened yesterday -- I'm sorry, at one

    13 point during this case.

    14 Knowing, as one did, the nature of the

    15 evidence that was going to be forthcoming, one waited

    16 with considerable interest to see how the Prosecution

    17 would counterattack the proposition that Goran Jelisic

    18 was not just a friend of Muslims but had helped many

    19 people, and how they would react to a steady procession

    20 of Muslims coming through the court, a feature which, I

    21 may say, is, I think, unique in these cases. I don't

    22 think there has been any other defendant who has been

    23 brought before this Court and been sentenced by them

    24 has had so many people from the other ethnic group,

    25 whom they have been alleged to attack, or any at all,

  87. 1 coming and giving evidence at risk to themselves,

    2 because, of course, if they are discovered to have

    3 given evidence on behalf of, what my learned friend was

    4 pleased to call the well-known, mass killer, Goran

    5 Jelisic, you may think that they are undertaking a very

    6 considerable risk in so doing.

    7 The counterattack was quite a long time

    8 coming, but come it did. The Prosecution plainly had

    9 to find some way of explaining away what I have

    10 described as a steady procession of Muslim witnesses

    11 testifying to the good character of Goran Jelisic and

    12 to the acts of assistance he had given to them and to

    13 others, and the measure, in fact, of how weak the

    14 Prosecution's case had become on that point may be

    15 gathered from the nature of the counterattack.

    16 It came when my learned friend,

    17 Mr. Tochilovsky, was on his feet cross-examining a

    18 witness. He sought to suggest that the reason why

    19 Goran Jelisic was helping all these people was that it

    20 was somehow official policy that Muslims should be

    21 encouraged or engaged to help such people so that the

    22 Muslim population of Brcko could somehow be further

    23 reduced.

    24 Your Honours, quite frankly, quite apart from

    25 the fact that he was also trying to bolster up their

  88. 1 appeal on genocide, Your Honours may think that to make

    2 that suggestion was simply absurd and laughable. There

    3 is simple no evidence whatever to support that

    4 proposition, and if there was, we would no doubt have

    5 heard about it a very long time ago.

    6 In any event, if that's what you were going

    7 to do, you would not need to go to the lengths of

    8 ferrying people in a small boat across the River Sava

    9 or the River Drina if the escapes had been officially

    10 sanctioned and encouraged. There are rather simpler

    11 ways of carrying out such a policy, and if there had

    12 been such a policy, as the Prosecution were trying to

    13 suggest, would it not have been somewhat transparent to

    14 those whom he aided to escape that he was not doing it

    15 out of friendship but because he was taking part in

    16 some carefully calculated policy of bloodless, ethnic

    17 cleansing?

    18 We say that that was a revealing moment in

    19 the Prosecution's case, and the Prosecution knows that

    20 the assistance which the defendant gave to Muslims

    21 during and after the war fundamentally undermines the

    22 picture which they have painted of him. The person

    23 they portray and the one that we have otherwise come to

    24 know through Defence evidence are simply not

    25 consistent, and we say -- and this is absolutely

  89. 1 crucial -- that the Prosecution have not presented a

    2 single scrap of evidence to explain how, for a short

    3 period in May 1992, this man changes his character

    4 completely from being someone who is at ease with,

    5 draws his friends from, and assists the Muslim

    6 community to someone who spends 18 days engaged in

    7 barbaric and brutish savagery against those very same

    8 people. It simply is not consistent and is not

    9 credible. We say that the portrayal that they have

    10 placed before you is a false one.

    11 There is, of course, a reasonable, proper,

    12 and rational explanation as to why someone who was like

    13 that should engage in the kind of activities that he

    14 did, and it is self-evident from what is said about him

    15 that he is someone who is, indeed, in certain

    16 circumstances, susceptible to pressure, carrying out

    17 killings at the behest and under the pressure of

    18 others.

    19 We submit that the only rational and proper

    20 explanation as to why there should be this short, less

    21 than three week period of Goran Jelisic turning into a

    22 killer, given what you've heard about him, is that he

    23 did it not because it was his enthusiasm, not because

    24 he had suddenly turned into a racist monster, but

    25 because -- and my learned friend has, in fact,

  90. 1 identified the reason -- there are others older and

    2 superior to him who make use of such young men, and

    3 they do it by recruiting them, placing them under the

    4 disciplines of military and police law, and making them

    5 do it. "You have to obey."

    6 We say the Prosecution recognise only too

    7 well that in that regard, Defence evidence about Goran

    8 Jelisic undermines their case. One only has to look at

    9 the explanation they've come up with to deal with the

    10 fact that as early as 1992, the defendant was saying to

    11 others what he had been doing and that he had been an

    12 unwilling participant in those events.

    13 The Prosecution's explanation goes like

    14 this: The defendant told his friends that he'd been

    15 forced to carry out the killings; the defendant fled

    16 Brcko; the defendant checked himself into a hospital

    17 and got his friends, because that's the only people who

    18 could have made these telephone calls threatening his

    19 life, got his friends to make threatening telephone

    20 calls, or perhaps he simply spoke into the receiver of

    21 the telephone when nobody was there; got himself

    22 transferred to Belgrade; imaginary telephone calls with

    23 his superiors complaining about what he had been made

    24 to do; temporarily hiding himself away in a military

    25 unit; shooting himself in the foot. All as part of a

  91. 1 carefully, sophisticated, calculated plan to provide

    2 himself with a degree of mitigation or a defence for

    3 what he had done, just in case -- just in case -- one

    4 day someone should set up an international tribunal

    5 where he might be called to account.

    6 Again, I'm going to characterise that

    7 proposition as one which is absurd. The idea that a

    8 man of this defendant's learning and education and

    9 degree of sophistication could think up for himself, at

    10 that time and in those circumstances, such a

    11 wide-ranging and long-lasting scheme to account for his

    12 crimes in the future is, we respectfully submit, one

    13 that is absurd.

    14 Your Honour, I turn now to the issue of this

    15 defendant and how you should deal with him.

    16 The first matter is this: The defendant,

    17 having been arrested, was brought to the Tribunal. At

    18 his initial hearings, when represented by other

    19 counsel, he pleaded not guilty. Subsequently, after

    20 taking advice and considering the matter, he pleaded

    21 guilty in a way which was, with one exception,

    22 acceptable to the Prosecution.

    23 We respectfully submit that the propositions

    24 that the Prosecution has laid before you that you can

    25 safely ignore a guilty plea in his case is one which is

  92. 1 fundamentally unfair. We say that a guilty plea is as

    2 clear an indication of remorse and, indeed, of

    3 cooperation and honesty as you could wish to have. He

    4 pleaded guilty at a very early stage; pleaded guilty,

    5 let me add, to an amended indictment.

    6 The point of that is this: There were

    7 plainly issues which had to be resolved as between

    8 Defence and Prosecution, and after proper discussions

    9 with the Prosecution, an amended indictment was

    10 produced, and when he was asked to plead to that

    11 amended indictment, he produced pleas which were

    12 acceptable -- except for Count 1, genocide -- to the

    13 Prosecution.

    14 He is now castigated for not having pleaded

    15 guilty on day 1. Your Honours, that, with great

    16 respect to my learned friend, is unfair. There were

    17 plainly matters which the Prosecution subsequently

    18 accepted, wholly defective in their initial indictment,

    19 which had to be corrected by amendment. So when that

    20 amended indictment is produced, as I say, he pleads

    21 guilty when it is first put to him. The Prosecution

    22 say that that is of no value. We respectfully invite

    23 Your Honours to say that that proposition should firmly

    24 be rejected.

    25 There is an importance in so doing. Apart

  93. 1 from, I think, the defendant Erdemovic, Goran Jelisic

    2 is the only person to plead guilty to offences before

    3 this Tribunal. That very clearly marks him out from

    4 defendants, for example, in the Celebici trial, from

    5 Tadic, Aleksovski, Furundzija, and in the other

    6 International Tribunal, Kayishema, Ruzindena, Akayesu,

    7 who all pleaded not guilty, and there are defendants

    8 taking part in other long-standing trials, some of

    9 which have closed and are awaiting judgement, others

    10 which are ongoing.

    11 What is the effect of his plea of guilty?

    12 Whatever the Prosecution says, and even if you are to

    13 accept their proposition that it has no bearing and has

    14 no value, the reality is that the Prosecution served on

    15 the Defence the witness statements of far more people

    16 than were ever called for the genocide trial. Even if,

    17 and I do not accept it for a moment, even if you were

    18 to say the proposition that they make about witnesses

    19 not having to testify is right, the fact of the matter

    20 is that a very large number of witnesses who would have

    21 to have been called on a trial concerning the murders

    22 and other counts to which he has, in fact, pleaded

    23 guilty have not had to give evidence and relive their

    24 experiences.

    25 Secondly, there is another value to the

  94. 1 guilty plea. It avoids any further lengthy

    2 investigation, and one knows only too well -- and it's

    3 indicated by things that have been said during this

    4 trial and other trials -- when a defendant pleads not

    5 guilty, a considerable amount of work has to be done by

    6 the Prosecution in order to bring the case ready for

    7 trial.

    8 The next matter is this, which no doubt the

    9 Prosecution would scorn because they say it's simply an

    10 indication of his trying to manipulate the Chamber: It

    11 indicates a willingness and desire to cooperate with

    12 the Chamber, and as I've indicated to you, his

    13 intention to plead guilty was indicated at a very early

    14 stage, and that is confirmed by the fact that an

    15 interview with the Office of the Prosecutor, he made,

    16 with almost embarrassing frankness, immediate

    17 admissions to offences when put to him. Your Honours

    18 can go through the interviews. You will see that there

    19 is the interviewer saying, "Now, then, we have Count so

    20 and so. It is said that you killed this man."

    21 Immediately, the defendant says, "I did" and gives an

    22 account about it. All that indicates is a consistent

    23 intention to plead guilty, to cooperate and to admit

    24 what he had done.

    25 It doesn't stand in isolation, of course,

  95. 1 because you heard of the evidence of a witness in

    2 closed session who told you of events that took place

    3 in 1997. This was no mere flash in the pan of a

    4 defendant arriving here and being overwhelmed by the

    5 hard facts. And it's not only that. However limited

    6 the admissions that he made were, he had been admitting

    7 killings for a very long period. So the Prosecution,

    8 seeking to deny him the credit which is properly, we

    9 submit, due to someone who pleads guilty, is, in our

    10 respectful submission, ill-founded.

    11 There is also to be considered, we

    12 respectfully submit, an important public policy

    13 consideration in dealing with guilty pleas. Of course,

    14 there are some cases where despite a guilty plea a life

    15 sentence may well be appropriate, and one looks at, in

    16 recent jurisprudence of the International Tribunals,

    17 the case of Jean Kambanda, Prime Minister of his

    18 country and effectively responsible not just for all

    19 that took place in terms of his offences of genocide

    20 but responsible for his colleagues in cabinet,

    21 responsible for direction of the military and of the

    22 police. If there is anybody in the life after state

    23 who has a higher duty to protect his citizens, it is

    24 difficult to think of such a person, and the extent of

    25 the genocide in Rwanda was such that it was almost

  96. 1 inevitable that whatever plea are tendered, whatever

    2 cooperation he gave, and it is, on the face of the

    3 judgement, substantial cooperation, inevitable that

    4 such a man would have to be sentenced to life

    5 imprisonment.

    6 Is Your Honour telling me to stop and have a

    7 break? Because I shall happily to do so if you want me

    8 to, but I was going to plough on until you told me.

    9 JUDGE JORDA: [Interpretation] If you think

    10 that this is a proper place to stop in your argument, I

    11 suggest that we do take a break. Do we agree?

    12 MR. GREAVES: I can happily stop there if you

    13 wish me to, certainly.

    14 JUDGE JORDA: I might ask you a question.

    15 About how long are you going to need?

    16 MR. GREAVES: Your Honour keeps on asking me

    17 that question. You will finish on time today.

    18 JUDGE JORDA: [Interpretation] I'm asking you

    19 the question merely because I'm the Presiding Judge of

    20 this Chamber and we're trying to organise our work.

    21 Even if it was only a question of knowing whether the

    22 interpreters have to work longer than that, there's the

    23 issue of fatigue. It's not an order to constrain you

    24 in any way. I want us to be clear on that point.

    25 MR. GREAVES: This is one occasion where I

  97. 1 simply don't know how long I'm going to be. I, unlike

    2 the Prosecution, simply have some head-notes that I'm

    3 working to, and I'm trying to develop my theme on my

    4 feet, and it's not always easy to guess how long I'm

    5 going to be but I will finish in good time.

    6 JUDGE JORDA: [Interpretation] Very well.

    7 Thank you. Thank you very much. That was the

    8 information I needed. Thank you, Mr. Greaves.

    9 We will take a 20-minute break.

    10 --- Recess taken at 4.05 p.m.

    11 --- On resuming at 4.30 p.m.

    12 JUDGE JORDA: [Interpretation] We will now

    13 resume the hearing. Please be seated.

    14 [The accused entered court]

    15 JUDGE JORDA: [Interpretation] Mr. Greaves.

    16 MR. GREAVES: Your Honour, we were discussing

    17 the issue of guilty pleas and the element of

    18 encouragement that needs to be given to defendants to

    19 plead guilty, and I placed before you one example of a

    20 case where it may well be appropriate, but in highly

    21 unusual and specialised circumstances to pass a life

    22 sentence regardless of the fact that a man has pleaded

    23 guilty. But the other side of the coin is that if

    24 guilty pleas are to be encouraged, if confessions are

    25 to be encouraged, if surrenders are to be encouraged,

  98. 1 then the surest way of discouraging them is to send out

    2 a message to defendants that, "If you plead guilty it's

    3 not going to do you a lot of good because Prosecution

    4 will castigate you for it and we'll give you a life

    5 sentence at the end of it." There is no encouragement

    6 at all sent out by the message of passing a life

    7 sentence to encourage anybody to surrender, anybody to

    8 confess, confess, anybody to plead guilty when the

    9 indictment, amended or not, is placed before him.

    10 There is, of course, another point about life

    11 sentences and whether or not it's appropriate in a case

    12 of this kind. One has to consider, in the context of

    13 this fairly specialised jurisdiction, whether or not

    14 life sentences should, in fact, be reserved for those

    15 who are guilty of the very most serious crimes.

    16 I said at the outset that I was not going so

    17 say anything which was intended to belittle the

    18 killings which this man committed and what I've just

    19 said is not intended to do that, but if there is a

    20 scale of things, then two things do occur.

    21 Firstly, it is undoubtedly the case that an

    22 offence of genocide would rank as a more serious matter

    23 than even the killings which this man has admitted.

    24 Secondly, Your Honours may consider that it would be

    25 right, as a matter of public policy, that sentences of

  99. 1 life imprisonment should, in fact, be reserved for the

    2 people who are most culpable, most guilty, and most at

    3 the heart of what took place. I need mention no names,

    4 but there are those who have yet to be arrested or to

    5 surrender to this Tribunal to whom I am referring,

    6 because one has to mark out their conduct as being

    7 particularly serious and to mark out their behaviour as

    8 being particularly worthy of the most serious

    9 sentence.

    10 May I turn now to what is undoubtedly the

    11 thorny issue of remorse. The Prosecution are forced to

    12 rely on the evidence of somebody who has not seen the

    13 defendant for a year, and perhaps, reluctantly, you may

    14 think that Dr. Duits eventually was prepared to concede

    15 that there may have been some change, some development

    16 in the defendant, and the person best placed, whether

    17 he conducted his examination with the assistance of

    18 another psychiatrist or no, the person best placed to

    19 give you an account of that issue is

    20 Dr. Van den Bussche.

    21 I'm not going to go over at great length the

    22 evidence which we heard only yesterday, since that

    23 would be to take up time, reminding you of something

    24 which must be properly fresh in your minds, but the

    25 reality is, we submit, that there is evidence in the

  100. 1 case, evidence which comes from a professional who

    2 deals with serial killers, is well versed with their

    3 behaviour, is sufficiently skilled, as he told you, to

    4 see through the attempts at manipulation by the

    5 defendant and to make allowance, due allowance, for

    6 those attempts when coming to his conclusions. And his

    7 evidence, you will recall, concerning remorse is

    8 evidence which we would invite you to consider and to

    9 accept, because the reality is that Dr. Duits, not

    10 having seen the defendant for a year, not being in a

    11 position to know what his present situation is, cannot

    12 properly comment on it, cannot properly gainsay that

    13 which Dr. Van den Bussche says.

    14 I move now to the issue of cooperation. I

    15 would have to accept that on the evidence that has been

    16 placed before the Tribunal, I could not properly

    17 describe that as falling -- the cooperation that he has

    18 given, I could not properly describe that as having

    19 been substantial, but simply to dismiss any cooperation

    20 as being of no value is, we respectfully submit,

    21 unfair. The fact of the matter is that he has given

    22 some assistance. The fact of the matter is, of course,

    23 that some of that material was already known to the

    24 Prosecution. And as the witness for the Prosecution

    25 conceded, it's not the defendant's fault that the

  101. 1 Prosecution already knew that. He can only do his best

    2 in the light of what he knows.

    3 I next turn very briefly to the issue of

    4 Mr. McFadden's report, again a matter which Your

    5 Honours may feel is proper to consider, and certainly

    6 in the case of Tadic there was reference to such a

    7 report having been procured and it indicating that

    8 Tadic had behaved well whilst a prisoner.

    9 Your Honours have a similar report from

    10 Mr. McFadden, the commander of the United Nations

    11 Detention Unit -- it's dated the 25th of November

    12 1999 -- and that indicates that, perhaps not

    13 unexpectedly, he's generally behaved reasonably well,

    14 his attitude towards the guards and management has

    15 generally been good, although there have been

    16 outbursts, mostly after verbal nature.

    17 Your Honours will of course, in the knowledge

    18 of the defendant and having had an opportunity to

    19 observe him over quite a long period of time, will

    20 understand some of the stresses that he's been through

    21 which may have led to those occasional outbursts, but

    22 they are occasional.

    23 Your Honours may think that that report

    24 demonstrates that of late he has been much better

    25 behaved, and I note from the final paragraph, sorry,

  102. 1 the personal ultimate paragraph that Mr. McFadden's

    2 view of him at the present time is that during the last

    3 months his behaviour has been very good, and he seems

    4 to be less inclined to the erratic behaviour observed

    5 at an earlier stage of his detention.

    6 That's quite an important feature, if I may

    7 submit to Your Honours, because it may well fit in with

    8 the evidence of Dr. Van den Bussche, that this is a man

    9 who has changed and has developed particularly in

    10 recent months, and it may provide, you may feel, some

    11 support for the proposition that Dr. Van den Bussche

    12 was putting before you.

    13 Can I next turn to an issue which again the

    14 Prosecution dismisses as of peripheral or little value

    15 and that is the negotiations that the defendant

    16 undertook with a particular witness in this case. I'm

    17 not going to refer to the details of that because of

    18 the nature of the circumstances in which the witness

    19 testified, but in our respectful submission, it's

    20 important evidence for a number reasons.

    21 Firstly, it indicates a consistent pattern of

    22 how this defendant was developing towards a situation

    23 where he felt able, when placed before the Tribunal, to

    24 plead guilty and confess what he had done. Secondly,

    25 the Prosecution seek to suggest that here was a man who

  103. 1 was simply negotiating as he wished to obtain the best

    2 possible deal.

    3 That makes, if I may say so, absolutely no

    4 allowance at all for what must be perceived as the

    5 reputation of the Tribunal amongst many of the people

    6 of Serbia and Republika Srpska. It's perhaps right to

    7 say that the Tribunal isn't the most popular

    8 institution in those two countries. I don't need to go

    9 into the reasons for that in any way, but it is a fact

    10 that the War Crimes Tribunal is not an institution that

    11 is universally admired in those parts of the world.

    12 And we heard some evidence from the witness to whom

    13 I've just referred about the concerns that the

    14 defendant had that he would be assaulted or ill-treated

    15 whilst in the United Nations Detention Unit.

    16 It's plainly not true that that would

    17 happen. Anyone who has had contact with the United

    18 Nations Detention Unit would know that fact, but

    19 reality is that in Republika Srpska and no doubt in

    20 Serbia, things are different, and anybody who was

    21 living there at that time would be prey to that

    22 propaganda, prey to those untruths and would

    23 justifiably, because they don't know what the truth is,

    24 want to express those concerns, and he wants to know,

    25 "If I surrender, am I going to be safe, because we've

  104. 1 heard that Serbs get ill-treated by the Tribunal."

    2 Secondly, one of the defendant's concerns

    3 appears to have been, according to the witness, for his

    4 family. It's particularly cruel of the Prosecution,

    5 you may think, to think that that was simply a

    6 negotiating gambit of a man who wasn't serious of

    7 surrendering. Any human being, before he took a step

    8 of surrendering to a Tribunal in the circumstances that

    9 this man was in, would want to have some sort of

    10 reassurance whether the witness or the Tribunal was

    11 able to give it or no, would want to seek some

    12 assurance that in his absence, something might be done

    13 for his family. The Prosecution deride the defendant

    14 for having done that, in effect, saying that is simply

    15 someone trying to look after himself. In our

    16 respectful submission, that's a particularly unkind,

    17 particularly negative way to look at what the defendant

    18 was trying to do.

    19 Of course, it's easily said that if a man

    20 wants to surrender, then surrender he must and do it

    21 straightaway, but that isn't always the case in the

    22 real world, is it? Because there are some people who

    23 want to find out what's going to happen to me. "How

    24 long," as the witness told you, "how long am I going to

    25 get imprisoned? What are the conditions like? Am I,"

  105. 1 as it's been said, "going to be ill-treated if I go

    2 there? What's going to happen to my family?"

    3 Those are, in reality, perfectly proper

    4 questions for him to ask, and we respectfully submit

    5 that the evidence on this particular topic shows and

    6 has not genuinely been displaced that the defendant,

    7 realising that the game was, indeed, up and that the

    8 net was closing in around him, genuinely and sincerely

    9 made the effort to find out what would be the position

    10 if he surrendered, and held three proper meetings with

    11 a particular individual with a view to doing precisely

    12 that.

    13 No doubt, and it may be inferred from the

    14 evidence of the witness, no doubt the witness gave

    15 information to others indicating how readily available

    16 the defendant, in fact, was, and that's evident from

    17 the witness's evidence that the defendant was out and

    18 about in Bijeljina on a regular basis. So it comes as

    19 no surprise that the witness himself goes away on

    20 holiday, and very shortly after he returns home and

    21 before the defendant has had a further chance to take

    22 matters beyond that which he's already done, he's

    23 arrested and brought to The Hague.

    24 But there is, as I've indicated to Your

    25 Honours, the consistency of behaviour thereafter, which

  106. 1 we rely on and invite Your Honours to take into

    2 consideration and say that here was a man, interested

    3 in the idea of surrendering, knowing what he was going

    4 to do when he got here, and doing precisely that;

    5 namely, confessing and pleading guilty.

    6 Your Honours are entitled to take into

    7 consideration in this case, and we invite to you do so,

    8 his age at the time of the offences and, indeed, his

    9 age now. If you were to pass upon him a life sentence,

    10 he might well live to a very old age indeed, and if it

    11 was a life sentence which you said should be a life

    12 sentence, with modern life expectancy, that might be

    13 50, 60, or 70 years. That is an enormous amount of

    14 time. It could only be justified if there was clear

    15 and wholly unambiguous evidence that until such time as

    16 he was old and infirm he remained a danger to the

    17 public. There is no such evidence.

    18 The Prosecution, of course, try to put it the

    19 other way around: Unless you are satisfied that he

    20 isn't a danger, you should lock him up and throw the

    21 key away. That is not, in our respectful submission,

    22 the proper approach.

    23 The proper approach should be this: Three

    24 questions:

    25 Is there evidence that he is dangerous? Is

  107. 1 there evidence that he is not dangerous? Or is there

    2 no evidence one way or the other?

    3 In our submission, there is no evidence which

    4 is proved beyond a reasonable doubt that he is

    5 dangerous and would be dangerous to the public if

    6 released. I agree equally that there is no evidence

    7 that he is not dangerous. The position is the medium

    8 position, which is there is no evidence either way, and

    9 Your Honours may think that that is the only possible

    10 conclusion to be drawn from the evidence of the

    11 doctors.

    12 If there is no evidence either way, and if it

    13 is not proved, as it has to be, beyond a reasonable

    14 doubt that he is, in fact, a danger to the public, then

    15 Your Honours must decide that issue in favour of the

    16 defendant, and I would respectfully submit, on behalf

    17 of Goran Jelisic, that there simply is no sufficient

    18 evidence to pass that test that he is dangerous.

    19 Other matters that Your Honours can consider

    20 concerning this defendant. Amongst the papers which

    21 were provided to you today is evidence which, in

    22 effect, says -- and I'll come, if I may, in a moment to

    23 the conviction in respect of dishonesty -- there is no

    24 suggestion that in his past this man has ever been

    25 guilty of any offence involving violence, any offence

  108. 1 involving homicide, any offence involving aggressive

    2 behaviour, any offence involving racist behaviour, any

    3 offence involving public disorder. So in that sense,

    4 but in that sense alone, he comes with a completely

    5 clean slate to this Tribunal.

    6 Of course, he has the convictions that

    7 related to dishonesty and the dishonest use of

    8 cheques. I've already dealt with those, I've already

    9 made comments about them, and I don't feel the need to

    10 reemphasise those, save to say that in the context of

    11 this case, stealing or misusing cheques in a dishonest

    12 way falls into a quite different category from the kind

    13 of offences for which you have to pass sentence upon

    14 him in due course, and we respectfully submit that in

    15 the context of this case, that issue has but a

    16 peripheral importance.

    17 Next, I turn to the issue of superior orders

    18 and whether or not those were genuinely made out in

    19 this case or not.

    20 You will recall, I hope, one important piece

    21 of evidence in which a witness described how two

    22 particular individuals, Tesic and Karinovic, the

    23 inspectors, were the judge of those who were to die and

    24 those who were not to die. It's important evidence

    25 because it's quite obvious that those two individuals

  109. 1 were heavily involved in the Luka detention facility

    2 and heavily involved in the process of deciding who it

    3 was who was to be killed, and it may well be that Your

    4 Honours accept that they were involved in deciding

    5 categories of people who were to be liquidated.

    6 Rank is an important matter, and that is

    7 obvious from all that one knows about the former

    8 Yugoslavia. Military and police ranks are serious

    9 matters, were taken seriously, and there was a clear

    10 chain of command established in these countries. These

    11 are people who are superiors to the defendant, and

    12 there is Prosecution evidence -- not Defence evidence,

    13 Prosecution evidence -- that these people were

    14 responsible for making choices and, it may be inferred

    15 from that evidence, giving orders to others, including

    16 Goran Jelisic, that individuals should be killed.

    17 We respectfully submit that the case which

    18 the Prosecution has made out in respect of this

    19 defendant being not just an enthusiastic killer but a

    20 killer who made up his own mind to kill is not made

    21 out.

    22 Let's take one example. We heard yesterday

    23 from a witness who the Prosecution called to

    24 corroborate, despite there being no requirement to do

    25 so, the evidence of another witness. The reality of

  110. 1 the evidence of those two witnesses is this: As to

    2 important details, not as to minor and peripheral

    3 details, as to matters of important detail, the

    4 accounts given by those two witnesses are, in important

    5 detail, wholly opposed. They can't, we respectfully

    6 submit, be reconciled, the one with the other; they

    7 cannot both be true accounts.

    8 If that's right, and we respectfully submit

    9 that it is, if that is right, then ultimately it cannot

    10 be decided which of them is telling the truth, and the

    11 only proper conclusion which it would be right to draw,

    12 we submit, from those circumstances, is that the

    13 evidence as a whole should be rejected.

    14 I give but one example. Of course, the

    15 Prosecution addresses you on the basis that every one

    16 of their witnesses is absolutely truthful all of the

    17 time, and they rely on their witnesses and say, "Well,

    18 that proves this and that proves that, and that proves

    19 that the defendant was a keen and enthusiastic and

    20 willing killer."

    21 Your Honour, I'm not going to indulge this

    22 afternoon in a line-by-line examination of the

    23 evidence. What I will say is this: The Prosecution

    24 has simply ignored the fact that many of the accounts

    25 which were given by witnesses were again, as to

  111. 1 important details, inconsistent with accounts that they

    2 had given on a previous occasion. That's important.

    3 People are invited, whether it's by courts or by the

    4 police or the security police, to give an account which

    5 they indicate, by signing their names to it, is a true

    6 account, and they do so in this case frequently at a

    7 time which was closer to the events which they were

    8 recounting, and then come to this Tribunal and give an

    9 account in respect of important matters, not peripheral

    10 matters, important matters, which is wholly in contrary

    11 distinction to the former account that was given.

    12 What is the importance of that? The previous

    13 statement is a measure by which one can judge the

    14 honesty or the reliability and accuracy of a witness,

    15 and in using those documents, it would be important and

    16 necessary to look at them and say, "Well, what have we

    17 got here? These are not differences of minor detail;

    18 these are fundamental differences which cannot for a

    19 moment be reconciled, the one with the other."

    20 The only conclusion which may properly be

    21 drawn from that level of inconsistency is either that

    22 the witness is not accurate and reliable, and if a

    23 witness is not accurate and reliable, you cannot rely

    24 upon him; or it may be worse than that, it may be that

    25 the witness is actively being untruthful, and again if

  112. 1 the witness is being or may be being untruthful, then

    2 it would be right and, indeed, necessary to reject that

    3 evidence.

    4 The Prosecution must prove its case beyond a

    5 reasonable doubt, and producing and pointing out those

    6 inconsistencies, we submit, produces a reasonable

    7 doubt. In those circumstances, if a reasonable doubt

    8 is produced in relation to those witnesses, then it's

    9 proper and, indeed, we submit, necessary to reject the

    10 evidence.

    11 Your Honour, we went through that exercise on

    12 quite a significant number of occasions. It isn't a

    13 case of people sitting down with the security police

    14 and not having the assistance of lawyers and so on.

    15 One has to look at what it is they say, and frequently,

    16 although there is some difference sometimes between the

    17 exact wording of the statements made to the Bosnian

    18 authorities, those people sit down and say, "We confirm

    19 the truth of that which is in this statement," and

    20 frequently, one finds that there is either no reference

    21 to Goran Jelisic, or if reference is made to Goran

    22 Jelisic, it is only a very minor reference.

    23 If Goran Jelisic was the enthusiastic mass

    24 murderer that the Prosecution allege today that he is,

    25 then it would be reasonable to expect that those

  113. 1 statements, frequently made, as they were, in late 1992

    2 or early 1993, would confirm that position. It is a

    3 matter of some curiosity that some years later, when

    4 they come to make statements to the Prosecutor, when

    5 issues have changed somewhat, that in the statement of

    6 a particular individual and the evidence that he places

    7 before the Tribunal, Goran Jelisic is suddenly advanced

    8 to the front, he never having previously been in that

    9 witness's mind a person of great importance.

    10 That's important, and you must ask why it is,

    11 in particular, ask why it should suddenly be that a

    12 witness should change his position so radically.

    13 There is an explanation. It is because for

    14 whatever reason, and it's not for the Defence to

    15 demonstrate that reason, for whatever reason, the

    16 witness has decided to exaggerate or be untruthful

    17 about the conduct of Goran Jelisic.

    18 We respectfully remind Your Honour of all

    19 those occasions when witnesses were found to have

    20 differed in their evidence from the accounts they gave

    21 at an early stage in the early 1990s about the

    22 incidents which they had observed.

    23 Next, I turn or return somewhat to the mental

    24 condition of the defendant.

    25 I'm not going to suggest that the position is

  114. 1 otherwise than that Goran Jelisic has some of the

    2 problems which are set out in the reports that are made

    3 and the evidence which is given about him, it would be

    4 idle to suggest otherwise, but I would respectfully

    5 remind Your Honours of, really, this:

    6 Firstly, Dr. van den Bussche indicated to you

    7 that he was able to observe and believed he had

    8 observed some progression in this man. If that is

    9 right, then, no doubt, further expertise could be

    10 brought to bear and he could receive appropriate

    11 treatment to develop that improvement.

    12 Secondly, reference is made to his conduct

    13 during the course of the trial, and again the

    14 Prosecution castigate him for it and suggest that, in

    15 some way, it is a matter which reflects badly upon

    16 him.

    17 The fact of the matter is, and this can be

    18 confirmed by, I think, Your Honours taking judicial

    19 notice of the fact, that throughout the period he has

    20 been on trial, he has been considered to be a risk of

    21 suicide, has been monitored in his cell by the prison

    22 authorities, quite properly, and there's no complaint

    23 about that. The fact of the matter is that he has been

    24 someone who has suffered from considerable anxiety and

    25 considerable stress throughout this trial, and at

  115. 1 times, it manifests itself in a number of ways, and of

    2 course it's very irritating for us, very irritating for

    3 Your Honours, and very irritating for everyone else

    4 when he says, "I want to go out and I can't stay," of

    5 course, that's right, it is irritating, but one must

    6 make due allowance for it.

    7 Of course, comparison is made between the

    8 suffering that he's had to undergo and the suffering of

    9 his victims. It's pretty easy to make that point, but

    10 it's a cheap shot, in our submission, to make that

    11 point. The reality is that he's on trial; it is a

    12 stressful business; he was facing, until very recently,

    13 the most serious charge which can be laid against him;

    14 and, one makes no secret of it, advice that indicated

    15 that he stood firmly at risk on conviction of that

    16 crime of the longest sentence that Your Honours can

    17 pass. Well, that places any man -- any man of strong

    18 and robust constitution would be placed under stress

    19 and pressure by being tried and facing the consequences

    20 of such a conviction. So Your Honours must, in our

    21 submission, make a proper allowance to him for that.

    22 Your Honours, I want just to go through

    23 briefly some of the notes that I was able to make over

    24 the luncheon adjournment concerning the document placed

    25 before you, and I will do it quickly because my notes

  116. 1 are fairly short and fairly quick.

    2 Paragraph 1, page 1, we respectfully submit

    3 that the proposition which is made there is not

    4 consistent with the evidence about the defendant as to

    5 his disposition prior, during, and after the war.

    6 One would agree with the first part of

    7 paragraph 2, the first four lines thereof -- and of

    8 course, it's right, he having pleaded guilty to the

    9 offences and not claimed either a special defence of

    10 diminished responsibility or duress, and he must be

    11 dealt with as if a man of full age and responsibility.

    12 That's not to say that his mental difficulties and any

    13 pressure that may have been placed on him cannot be

    14 taken into account; it plainly can be.

    15 Paragraph 3. We respectfully submit that an

    16 appeal to human instinct has no place in a court of

    17 law. It is an appeal to emotion, it is an appeal to

    18 instinct, which is not appropriate, particularly in a

    19 Tribunal composed, as Your Honour is always keen to

    20 remind me, of professional Judges.

    21 Paragraphs 5 and 6 I don't think I need

    22 comment on because they're more extensively dealt with

    23 by paragraph 7 and following.

    24 Paragraph 7 I think I've already dealt with,

    25 and I describe that as a particularly absurd

  117. 1 suggestion, given what we know about this particular

    2 defendant.

    3 Paragraph 8. Critical comment was made of

    4 Defence witnesses who had not bothered to inquire, and

    5 it's described as "natural inquiries," taking those

    6 inquiries further about what the defendant was

    7 admitting to them. With great respect, that is a

    8 somewhat unrealistic proposition.

    9 Just imagine, Your Honours, being faced with

    10 someone you've known for many years coming to you and

    11 saying, "I've committed a whole lot of murders." Short

    12 of someone saying to you, "My husband," or, "My wife

    13 has just died," it is perhaps no more difficult a thing

    14 to think of an answer to or about which you would want

    15 to make inquiries. It's probably the most difficult

    16 thing to try to deal with. And just imagine the

    17 conversation you would have with somebody who came to

    18 you with such a confession.

    19 It's perhaps unsurprising that the people

    20 that you saw, considerably less sophisticated than most

    21 of us in this court, found it difficult to deal with

    22 that proposition, not least those who were aware of

    23 rumours that the defendant was killing Muslims and who

    24 were themselves Muslims. They must have found that an

    25 extremely difficult time, and it is perhaps

  118. 1 unsurprising that they felt unable to make further

    2 inquiries.

    3 There is a second aspect, of course, and one

    4 which perhaps doesn't immediately occur to us, but just

    5 remember what the atmosphere was in that part of the

    6 world at that time. Knowledge was dangerous. If

    7 somebody knew that you knew he'd been involved in

    8 killings or ordering killings, they would have a

    9 significant motive for doing harm to you. So asking

    10 too many questions was not a very smart idea. You

    11 would put yourself in a position where you would have

    12 knowledge which others might seek to prevent you

    13 dissipating or disclosing to others.

    14 Paragraph 9 I think I've already dealt with

    15 largely. We respectfully submit that that is not a

    16 proper approach for Your Honours to take.

    17 At paragraph 10, it's inevitable that amongst

    18 some of the circle of friends of the defendant that

    19 some of them won't know the intimate details of what

    20 goes on in his household. Of course that's right and

    21 it's obvious. To castigate witnesses and to say that

    22 their evidence is of less value because they didn't

    23 know that is, we respectfully submit, not a good

    24 point.

    25 The Prosecution again castigates those who

  119. 1 were close friends who were uninformed about his

    2 behaviour. One can make this comment: It's not

    3 exactly the sort of thing that you tell your best

    4 friends if they themselves are ordinary, decent

    5 people. Of course, there was one who pointed out what

    6 he had done with it, but in large part, we say that

    7 it's unlikely that he would come along and say, "Well,

    8 by the way, you know that nice new car I've got and the

    9 dinner we had the other night? Well, that was the

    10 proceeds of crime." That's not a realistic approach,

    11 we submit.

    12 Witness DR, paragraph 12, misrepresents, we

    13 submit, her evidence. What she says is this, it's two

    14 things: First of all, was it simply a question of her

    15 child going off with a complete stranger on its own,

    16 but there was evidence from her that another child went

    17 with him; but secondly, she told you this: "The

    18 suggestion was made to make the child on holiday. The

    19 defendant went away and came back a week later. During

    20 which time I had time to think about the proposition.

    21 And one may conclude, think about the defendant, and

    22 having thought about him, I concluded that this was a

    23 safe and proper thing to do ."

    24 She's Muslim. She has come here at risk to

    25 herself. If anybody finds out that she's given

  120. 1 evidence on behalf of the defendant, she is placing

    2 herself at risk. Would she do that if, firstly, this

    3 was untrue; and secondly, if there had been some

    4 improper motive behind what she had done? We submit

    5 that the motives ascribed to her were ones which were

    6 unworthy motives.

    7 Paragraph 13. The Prosecution inevitably,

    8 when it has the opportunity to benefit from hearsay

    9 evidence, is content to invite Your Honours to rely

    10 upon it. When the Defence produces hearsay evidence,

    11 which of course is admissible before this Tribunal,

    12 where evidence is produced for which a proper

    13 foundation is laid -- and by that I mean a proper

    14 foundation as was envisaged by the very early decision

    15 before this Tribunal made in the Tadic case concerning

    16 the admissibility of hearsay evidence -- where a proper

    17 foundation is laid, the Prosecution, regardless of

    18 that, says that it must be ignored.

    19 Well, I would invite Your Honours to say, as

    20 you've indicated quite clearly during the trial,

    21 hearsay evidence is admissible. It's effectively a

    22 matter for Your Honours to decide. Firstly, is the

    23 evidence reliable, and if it's reliable, what weight

    24 should we give to it?

    25 The fact of the matter is that a large number

  121. 1 of Defence witnesses came along and said, "This is what

    2 we've heard." Of course, the Prosecution called a

    3 large number of witnesses who also gave hearsay

    4 evidence, evidence that plainly came from people who

    5 are still alive and well. So the same criticism can be

    6 made, and I think in particular of the lists which we

    7 went through at some length of time, the same criticism

    8 can be made of the Prosecution's approach. Well, if

    9 it's okay for them, it ought to be okay for us to

    10 produce hearsay evidence.

    11 Your Honours, it is evidence and you are

    12 obliged to consider it. You may reject it if you wish,

    13 but if it is well founded, if it is reliable, then you

    14 can take it into account.

    15 Paragraph 15. This, of course, is the second

    16 way in which the Prosecution seeks to deal with the

    17 uncomfortable facts of the number of people, Muslim,

    18 who were helped by the defendant. The second string

    19 that they seek to fit to their bow is, "Oh, well, this

    20 is the defendant acting out some hero role." Doesn't

    21 do it out of real remorse or guilt, but simply to

    22 polish, as they say, his own ego.

    23 Might he have done it out of friendship?

    24 After all, many of those whom he helped were his

    25 friends from before the war. They ascribe, on every

  122. 1 occasion, the worst possible motive to an act of

    2 friendship. Your Honours, I don't need to go through

    3 the detail of the number of people who said, "This

    4 defendant helped me, at risk to himself. This

    5 defendant helped members of my family, at risk to

    6 himself, and it's within my knowledge that he helped

    7 others who were not his friends." Is that simply

    8 polishing of ego or is it someone acting out of

    9 friendship, friendships which he had formed a long time

    10 ago, and acting quite properly? Of course, it may be

    11 in part that he felt the need to do it in the light of

    12 what he had done and to try hard to put things right.

    13 That may be one part of it. But simply to say, "Oh,

    14 well, it's polishing his ego," is simply far too

    15 facile, we respectfully submit.

    16 Paragraph 16. The Prosecution complain that

    17 Defence witnesses do not deal with his behaviour after

    18 the war. Again, we respectfully submit that that is to

    19 misrepresent the evidence. One only has to think, for

    20 example, of the witness who described how large numbers

    21 of his family were helped by the defendant to escape

    22 from his home area after the war, when he eventually

    23 went off, I think it was, to one of the countries in

    24 Europe. So simply to say there isn't any evidence or

    25 almost none of it dealt with his behaviour after the

  123. 1 war is simply not correct. And he wasn't the only

    2 one.

    3 The Prosecution seeks to make something out,

    4 although it's not clear what they're trying to make it

    5 out of the absence of any indication as to what he did

    6 in the years up to his arrest in 1998. There isn't any

    7 evidence about it and it would be wrong to draw

    8 conclusions one way or another.

    9 I have dealt with the issue of his thinking

    10 of surrendering. There is no evidence to support the

    11 suggestion at all that he was being supervised by

    12 people in the town, and we would respectfully invite

    13 you to reject that contention. I've already told Your

    14 Honours that the evidence shows that it was engaged in

    15 meaningful and realistic negotiations about surrender.

    16 Paragraph 19. An assertion is made with the

    17 order "maybe" put in front of it, someone having money

    18 to give -- "the defendant having money to give away

    19 (maybe from the smuggling of cars or other black-market

    20 activities)." No evidence of that at all.

    21 The defendant plainly did have access to a

    22 false identification document, and you will remember

    23 that there was evidence that he helped some Muslims to

    24 obtain false identity documents, and so again Your

    25 Honours may think that that's not the best point that

  124. 1 the Prosecution have to make in this case.

    2 Finally in that paragraph, the Prosecution

    3 say that this is all evidence that he was not in danger

    4 of being liquidated by the authorities. That may be a

    5 proper conclusion to draw but, of course, the instant

    6 danger had long since passed. The real time of stress

    7 and anxiety that something might happen to him would

    8 have been back in 1992 and 1993, when these matters

    9 were still fresh and people were still concerned that

    10 he was a potentially loose cannon who might go off and

    11 start disclosing uncomfortable facts to other people.

    12 It may well be that in time things had got easier.

    13 "Confessions in interview." If I may turn

    14 to paragraph 22, please. The defendant is castigated

    15 for his refusal to allow his mind to be explored in

    16 relation to genocide. I'm puzzled by that. I would

    17 have thought it obvious from everything that's happened

    18 in this case that the defendant has never accepted

    19 being guilty of genocide. He's been acquitted of that,

    20 and the rules say quite clearly that a defendant is

    21 entitled not to say anything about it if he so

    22 chooses. If he said nothing about his state of mind as

    23 to genocide, he was doing not more than exercising that

    24 which is his right guaranteed to him under Articles 20

    25 and 21 in the Rules of Procedure and Evidence. So I

  125. 1 would respectfully invite Your Honours to reject that

    2 remark as being wholly out of place.

    3 I've dealt with the issue of cooperation. I

    4 accept that the defendant didn't, in fact, surrender

    5 himself voluntarily, but I have made observations about

    6 that matter.

    7 Comment is made at page 9, paragraph 23(d),

    8 about the defendant limiting matters which he was

    9 willing to talk about. There may be all sorts of

    10 reason for that, and some might be unworthy, some might

    11 be worthy. For example, it may be that a defendant is

    12 particularly sensitive about a particular individual

    13 who he's not prepared to talk about because that person

    14 presents a particular risk to him. Who knows. It's

    15 not a factor, I respectfully submit, that ought to be

    16 taken into consideration.

    17 Paragraphs 26 and 27 I've dealt with at some

    18 length, the issue of guilty pleas which are tendered by

    19 a defendant, and I won't go back across that ground,

    20 save and expect, at paragraph 30, the observation that

    21 was made by my learned friend that he admitted very

    22 little beyond what the evidence established. Of

    23 course, that may be that what the evidence established

    24 was no more than that which had happened.

    25 He's also criticised again in that paragraph

  126. 1 for avoiding answering that which was crucial and

    2 difficult. Again, it's well within his rights, if he

    3 so chooses, not to answer the questions. Again, a

    4 right guaranteed to him. And Your Honours should not

    5 speculate on his motives for so doing because it would

    6 be wrong, we submit, to do so.

    7 He's castigated again for his plea of guilty

    8 not being of any particular value to national

    9 reconciliation. Well, that's a matter entirely for

    10 Your Honours to judge. Of course, he falls into a

    11 different category from, for example, a Jean Kambanda.

    12 He's not a prime minister; he's not a cabinet minister;

    13 he's not a member of a war presidency; he's not a local

    14 councillor; he's not a General in the army, but he is

    15 someone who took part in terrible events in a sensitive

    16 place, and his willingness to plead guilty ought to be

    17 held up as an example to others. If it's held up as an

    18 example to others, in the way that I suggested, by Your

    19 Honours giving encouragement to others, if others come

    20 forward as a result of seeing that you get credit from

    21 a plea of guilty and that a plea of guilty is treated

    22 well, then that very process will aid national

    23 reconciliation if other defendants, seeing what Your

    24 Honours do, recognise that there is, in fact, not only

    25 mercy but a sensible policy of encouraging pleas of

  127. 1 guilty. They may, thereby, be encouraged to

    2 surrender. If that happens, then one of the

    3 by-products of that is or may be a degree of assistance

    4 to the national reconciliation process.

    5 I've dealt with the issue of his conduct at

    6 the trial. I'm not going to go over it again.

    7 If I may turn to page 16 in the English

    8 version, Your Honours, issue of superior orders. Of

    9 course there may be cases where the fact that someone

    10 is at the very bottom of the chain of command, if I can

    11 put it that way, or at the very bottom, in other words,

    12 as a private soldier or an ordinary policeman, doesn't

    13 necessarily prevent them from being given long or

    14 maximum sentences. Each case, of course, has to be

    15 treated on its merits and on its own facts, and the

    16 cases which are set out in some considerable detail

    17 with all their references there, Your Honours may feel

    18 perhaps not entirely on the same level as the ones

    19 which we are dealing with here today.

    20 Paragraph 40. The suggestion is made that he

    21 was hiding from investigators -- sorry -- there may

    22 have been things he wished to hide from investigators

    23 and experts. The Prosecution say it's unclear what he

    24 did. No evidence to support that proposition.

    25 Paragraph 49, discriminatory behaviour. Of

  128. 1 course, as a proposition, the existence of a racial

    2 motive or racist motive to a crime, in many

    3 jurisdictions, is one that can serve to aggravate it,

    4 and that, in this modern world of ours, is one

    5 proposition which is well accepted pretty well

    6 everywhere. I don't dissent from that as a

    7 proposition.

    8 As far as the conduct of the defendant is

    9 concerned, I have already and at some length arrested

    10 Your Honours as to what we say is the unreliability of

    11 the Prosecution's witnesses, and that it's not accepted

    12 that that's what he did, and it does not fit with the

    13 Goran Jelisic who was the friend of Muslims and helped

    14 Muslims as a consistent matter. And that, we say, is a

    15 proper basis for you to reject that proposition and say

    16 that it's one that needn't be taken into account in

    17 this case.

    18 Again, paragraph 52, we have this business of

    19 the defendant setting up witnesses and that being

    20 proposed as an aggravating circumstance. Well, if Your

    21 Honours think that all those witnesses were dupes who

    22 came along because they had been manipulated in some

    23 way by the defendant, then of course you might wish to

    24 follow that proposition. But we respectfully submit

    25 that simple though they may have been, misjudged the

  129. 1 defendant they may have, these were ordinary, decent

    2 people who knew the defendant, who said, "Well, that's

    3 what I knew about him. That's how I knew him. What

    4 can I say? I got it wrong. Plainly there was

    5 something about him that I did not know, but what I can

    6 tell you, and that's all I can tell you, is he was a

    7 friend of Muslims. He assisted Muslims." That's the

    8 bare bones of what they say.

    9 Were they being dishonest about that or

    10 trying to pull the wool over Your Honours' eyes? Would

    11 they take the risk of coming here to try and assist

    12 pulling the wool over Your Honours' eyes, knowing that

    13 if they're found out then the risk to be them is

    14 great.

    15 In our respectful submission, although many

    16 witnesses take a risk by coming here, and I accept the

    17 Prosecution witnesses take a risk, the risk that a

    18 Muslim living anywhere near Brcko or Bijeljina or in

    19 the federation takes by giving evidence on behalf of

    20 what the Prosecution is pleased to call the mass

    21 killer, Jelisic, is infinitely greater. Just imagine

    22 how popular someone would be amongst his Muslim

    23 community if he was found to have been giving comfort

    24 and succour to the defendant Goran Jelisic. One could

    25 well imagine that he would be at real risk for having

  130. 1 done that. We submit that the suggestion that those

    2 people were manipulated and set up is simply without

    3 substance.

    4 Next, I turn to gravity of the offence.

    5 Of course, and everything, I hope, that I

    6 have said indicates that we accept this, the taking of

    7 human life is a most grave matter, it's always a grave

    8 matter, and it always has serious and grave

    9 consequences for other members of the family, for the

    10 friends, and for the community in which those people

    11 live. In those senses, Goran Jelisic has to answer for

    12 those grave offences, and he knows that and accepts

    13 that and has been for some time accepting of that

    14 proposition.

    15 What one must still do, and the exercise that

    16 one still must carry out, we submit, is consider

    17 carefully whether or not it's really made out that this

    18 defendant changed, in a period of 18 days, from an

    19 ordinary young man with a bit of a past into the

    20 blood-thirsty killer that the Prosecution would have

    21 you believe, or not. If there is doubt about that, and

    22 we submit that there is, then a proper case can be made

    23 for a much lesser sentence than that which the

    24 Prosecution asserts is appropriate in such strong

    25 terms. We submit that that's a proper course for you

  131. 1 to follow in this case.

    2 Paragraph 54. I revisited the most recent

    3 Tadic decision on sentence last night and was

    4 interested to discover that, yes, there is a difference

    5 quantitatively between war crimes and crimes against

    6 humanity. In respect to the second decision on

    7 sentence that was passed, I think, only about ten days

    8 ago, on the counts which involved war crimes, which

    9 were deemed to be lesser in seriousness than crimes

    10 against humanity, the sentence was one of 24 years;

    11 crimes against humanity, the sentence was one of 25

    12 years. My primitive mathematics reveal that that is a

    13 four per cent difference being considered appropriate

    14 between war crimes and crimes against humanity, and so

    15 if there is a distinction, it is a pretty small one, in

    16 the opinion of that Trial Chamber.

    17 I would invite Your Honours to look at very

    18 carefully the dissenting judgement of Judge Robinson in

    19 that case. We would adopt that dissenting judgement.

    20 It makes out a clear case, we submit, as to why the

    21 proposition that there is a useful distinction to be

    22 drawn between crimes against humanity and war crimes,

    23 that that distinction, if it exists, is a wholly

    24 artificial one or that, in fact, in reality doesn't

    25 exist at all.

  132. 1 If you think about it, look for a moment at

    2 the way in which people are indicted before this

    3 Tribunal, it is habitually the case that people are

    4 indicted for the three different forms of committing an

    5 offence: a crime against humanity, a grave breach of

    6 the Geneva Convention, or as a violation of the laws or

    7 customs of war. But the crime which is being alleged

    8 against the defendant, the act which is sought to make

    9 the defendant guilty, the act is the same one, it's the

    10 same killing, and it is, with great respect, a wholly

    11 artificial thing to do, to sentence somebody on the

    12 basis of labels which you put on crimes.

    13 We submit that the proper approach is to

    14 sentence somebody for what he has done, not for the

    15 label which you put upon it, because doing that is, as

    16 I've described it, an artificial exercise. The

    17 artificiality of it was, in reality, recognised by the

    18 Judges in the most recent Tadic decision, by making a

    19 distinction only of four per cent, one year, between

    20 the sentence for crimes against humanity and war

    21 crimes. So it may well be that we can proceed on the

    22 basis that that particular artificial distinction is

    23 now going to become a matter of history.

    24 Paragraph 56. It is a matter of regret that

    25 the word "extermination" should appear there and

  133. 1 somehow be attributed -- or the defendant should

    2 somehow be added into that proposition. He has been

    3 acquitted of genocide and he's not charged with

    4 persecution, and so it's wrong that you should consider

    5 this to be part of a wider pattern of extermination if

    6 he is not charged any more than either of those two

    7 offences.

    8 Paragraph 57. I've dealt with the issue of

    9 danger.

    10 Paragraph 63 is the next one which I want to

    11 address Your Honours about, and in a moment, I shall

    12 find some notes that I have. I have no problem with

    13 the propositions that are made out as far as the

    14 general practice regarding prison sentences in the

    15 courts of the former Yugoslavia. Such practice may be

    16 used as guidance and is not binding on the Trial

    17 Chamber. That is plainly the jurisprudence of the

    18 day.

    19 I hope that I can assist Your Honours by

    20 giving you a little bit more assistance with the

    21 sentencing practice for war crimes in

    22 Bosnia-Herzegovina.

    23 I have been able to find some details of four

    24 cases. I don't have the actual law reports in relation

    25 to them because I've been reliant on a colleague in

  134. 1 Sarajevo recently sending to me information about these

    2 matters, but I can tell Your Honours about four

    3 matters.

    4 In, I think, 1995, a youth called Dragan

    5 Opacic was convicted of war crimes against the civilian

    6 population under Article 142 of the Criminal Code of

    7 the SFRY, which was then still the law of

    8 Bosnia-Herzegovina. He was convicted of 23 murders

    9 committed with firearms, two other homicides, ten

    10 rapes, and for offences involving mistreatment of

    11 prisoners, he having been one of the guards in the

    12 Keraterm camp. He was sentenced to ten years in a

    13 juvenile prison. That is the maximum punishment, as I

    14 understand it, which could be imposed on a person of

    15 his age, and that explains the sentence of ten years,

    16 and I believe that he was between the age of 16 and 18

    17 at the time of sentence.

    18 The second case involved somebody called

    19 Veselin Cancar. I'm sorry. I've got a judgement

    20 number for that if you want to get further information

    21 about it. The judgement number has been given to me as

    22 KM-11/95. Veselin Cancar, which is judgement number

    23 K-186/96, he was convicted of war crimes against the

    24 civilian population, again Article 142. He had been

    25 camp commander at Foca. He was found guilty of illegal

  135. 1 detention, for the physical and psychological

    2 mistreatment of detainees, guilty of one murder and

    3 tortures that caused grievous bodily harm to more

    4 persons. He was initially sentenced to 11 years, but

    5 on appeal, the supreme court reduced that to nine

    6 years.

    7 The next case is Milan Hrvacevic, K-122/96 is

    8 the judgement number; again Article 142 of the Criminal

    9 Code of the SFRY. Convicted of war crimes; intentional

    10 devastation of a civilian installation of great scope

    11 and value, one million Deutschemarks; endangering lives

    12 of civilians in them; convicted and sentenced to 15

    13 years; on appeal, sentence reduced to 12 years. It may

    14 be that one thinks that that's perhaps not entirely

    15 similar to our present circumstances here.

    16 The final case is judgement number K-14/93.

    17 Borislav Herak and Svetko Damjanovic, they were

    18 convicted of genocide under Article 141, war crimes

    19 against civilians under Article 142, and war crimes

    20 against prisoners of war under Article 144 of the

    21 Criminal Code of SFRY. Herak had killed 40 civilians.

    22 He was initially sentenced to death, but subsequently,

    23 after appeals, that was reduced to 20 years. My

    24 informant seems to have missed out telling us what

    25 happened to the other defendant, but it may have been

  136. 1 that that wasn't a similar set of circumstances.

    2 So there I've set out a number of

    3 judgements.

    4 My learned friend made the observation about

    5 consistency of sentencing, and it's one which I would,

    6 in general, endorse, but to this extent: There should

    7 be consistency of sentencing not just before this

    8 Tribunal, but because it involves the former

    9 Yugoslavia, there should be some degree of consistency

    10 with the sentencing that is taking place arising out of

    11 this conflict in the former Yugoslavia.

    12 If the situation were to arise that a wholly

    13 different set of tariffs was to be practised here

    14 compared with sentences being passed in the former

    15 Yugoslavia, then that would raise the suggestion of

    16 some degree of unfairness. If one comes here and you

    17 get longer sentences, it may be thought to be better to

    18 surrender yourself to Sarajevo and get convicted there,

    19 if possible.

    20 So, yes, there should be consistency, but it

    21 should be consistency across the board, not just

    22 consistency between sentences at the International

    23 Tribunal or international tribunals.

    24 I'm conscious of the time, Your Honours. I'm

    25 coming, I hope, as rapidly as I may, towards an end.

  137. 1 In the context of consistency of sentencing,

    2 I'm not going to take Your Honours through, in any

    3 detail, the various decisions that have been made by

    4 this Tribunal in relation to sentence. Those are

    5 matters that you can look at in the comfort of the

    6 deliberation Chamber, if I may call it that, and Your

    7 Honours are fully familiar with it. Some of Your

    8 Honours have been involved in some of the sentencing

    9 decisions in any event, and it would be idle of me to

    10 lecture you about them. But if one looks carefully at

    11 each of the set of facts in each of the different cases

    12 that one has, there is, as my learned friend indicates,

    13 beginning to be a degree of jurisprudence that one can

    14 see as to the level of sentencing that has taken

    15 place.

    16 It may be helpful, of course, to remind Your

    17 Honours of some of the other cases that do not relate

    18 to this Tribunal. There have been a number of

    19 decisions before the Rwanda Tribunal, perhaps more

    20 apposite because each of the cases before the Rwanda

    21 Tribunal involves, in general, genocide, persecution,

    22 crimes against humanity, down to war crimes simpliciter

    23 as well. I've reminded you of some of the facts

    24 concerning Jean Kambanda, and that, perhaps I've

    25 indicated to Your Honours, is a case that falls into a

  138. 1 class of its own, and perhaps Your Honours may feel and

    2 would agree that it can't be used as a particularly

    3 helpful guideline in this case.

    4 The case of Kayishema and Ruzindena.

    5 Kayishema, a fully contested trial, convicted of four

    6 counts of genocide, including by way of being

    7 responsible as a superior as prefect of Kabayu [phoen]

    8 in Rwanda. He received a sentence of life

    9 imprisonment, and one knows only too well that the

    10 facts of the genocide in that case, as indeed in pretty

    11 well every case before the Rwanda Tribunal, involves

    12 responsibility for killings on an extremely wide

    13 scale.

    14 By contrast, the codefendant in that trial,

    15 Ruzindena, again fully contested trial, no plea of

    16 guilty, convicted of one count of genocide. In very

    17 brief terms, the case against him was that he had

    18 orchestrated and directed killings in the thousands of

    19 Tutsis, and he had personal involvement in at least one

    20 killing. Remember this: Fully contested trial;

    21 sentence, 25 years.

    22 Akayesu, convicted of a wide range of

    23 offences, extermination, genocide, incitement of

    24 genocide, murder as a crime against humanity, torture,

    25 rape, inhumane acts. Fully contested trial. He had

  139. 1 been the burgermeister of his particular commune and,

    2 according to the judgement, personally participated in

    3 at least 16 murders; life imprisonment.

    4 Then I turn finally to the case of

    5 Serushago. Can I commend to Your Honours the case of

    6 Serushago, which sets out in an extremely concise form

    7 not just some of the jurisprudence involving sentencing

    8 but the facts and the aggravating and mitigating

    9 features that were both present in that case and are

    10 ones which -- one saw my learned friend using, as it

    11 were, the headlines as items to consider, it's a

    12 decision which I commend to Your Honours.

    13 The defendant in that case surrendered

    14 himself, pleaded guilty, pleaded to genocide, murder,

    15 extermination, and torture, as I say, pleaded guilty.

    16 There was plainly considerable cooperation in that case

    17 by that defendant. So if one looks at trying to

    18 balance it in a non-artificial way, on the one hand, he

    19 pleads guilty to offences which are, on the face of it,

    20 more serious than even simple killings, to wit,

    21 genocide and extermination; the balancing factor in his

    22 case is one where he gives significant cooperation to

    23 the prosecution in that case.

    24 Given all those circumstances, and remember,

    25 as I indicated to Your Honours, that genocide in Rwanda

  140. 1 is the real thing, we're talking about hundreds of

    2 thousands of people, 15 years was the appropriate

    3 sentence in that case.

    4 Now, I pick those out. It's not our

    5 intention to invite Your Honours -- to say to Your

    6 Honours, "We think that 'X' years is appropriate in

    7 this case." I'm not going to do that, firstly, because

    8 we don't think it's appropriate that the Defence should

    9 advocate a particular sentence to be passed upon the

    10 defendant, save and except that the only sentence

    11 that's available to you is one of imprisonment, but

    12 we're not going to invite you to say -- to recommend to

    13 Your Honours a particular figure; secondly, because it

    14 has the practical problem of if we did it, we would be

    15 giving a hostage to fortune as far as any right on

    16 appeal will be concerned, and it's for that reason that

    17 we don't consider it appropriate to make any

    18 recommendation to Your Honours.

    19 What we do do, and what I hope has been clear

    20 that I've been trying to do, is to point Your Honours

    21 to some of the jurisprudence that is, perhaps, rather

    22 more up to date than the Nuremberg cases which upon the

    23 Prosecution relies, pointing Your Honours to some of

    24 those cases and saying, "Let's begin to look at the

    25 element of uniformity, the element of consistency that

  141. 1 is developing amongst the two Tribunals that are

    2 charged with the task of trying those guilty of serious

    3 offences against international humanitarian law."

    4 Your Honour, I conclude by saying this: I've

    5 indicated that we do not wish, and it's certainly not

    6 our intention, to belittle in any way those offences

    7 which the defendant committed. He knows that they are

    8 grave and he knows that a substantial sentence must

    9 follow for those killings, and he is accepting of

    10 that. I can say that to Your Honour. I don't wish to

    11 give evidence, but it's quite plain, from all that he

    12 has said, that he does accept that it's not going to be

    13 a short sentence, nor do we suggest that a short

    14 sentence is, in any sense, appropriate.

    15 But all the facts and all the features that

    16 I've urged upon you are ones that I invite Your Honours

    17 to accept, invite Your Honours to follow, and however

    18 terrible the crimes were -- and one only has to look at

    19 the series of photographs that were produced to

    20 understand that they are terrible crimes -- however

    21 terrible they were, the reasons do not exist to take

    22 the rest of this man's freedom away for the rest of

    23 what may be a long life, and that the proper approach

    24 is that which I recommended to Your Honours, to look at

    25 other jurisprudence, other cases, and to fit this case

  142. 1 into the scale of those cases, taking into account all

    2 the factors, and pass a sentence which gives him some

    3 light at the end of the tunnel and does not crush the

    4 human spirit.

    5 Those are my submissions on behalf of Goran

    6 Jelisic.

    7 JUDGE JORDA: [Interpretation] I would like to

    8 thank Mr. Greaves. I think neither the Prosecution,

    9 nor the Defence feels that this Trial Chamber prevented

    10 them from fully developing their arguments.

    11 I will now say that the proceedings are

    12 completed in the trial of Goran Jelisic and tell you

    13 that the sentence, at least the decision, will be

    14 rendered between the 10th and the 15th of December,

    15 1999.

    16 The court stands adjourned.

    17 --- Whereupon the hearing adjourned

    18 at 5.50 p.m. sine die