Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16607

1 Thursday, 30 March 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.35 a.m.

5 JUDGE MAY: Yes. Let the Registrar call the

6 case.

7 THE REGISTRAR: Good morning, Your Honours.

8 Case number IT-95-14/2-T, the Prosecutor versus Dario

9 Kordic and Mario Cerkez.

10 JUDGE MAY: Yes, Mr. Sayers.

11 MR. SAYERS: Thank you, Mr. President. The

12 case is here today for a hearing on the motions for

13 judgement of acquittal made by the accused Mr. Kordic,

14 represented by myself today; and by Mr. Turner Smith,

15 to my left; and also by the accused Mr. Cerkez. Both

16 motions are made pursuant to Rule 98 bis.

17 JUDGE MAY: Let me interrupt you. We have

18 read the very extensive proceedings, particularly on

19 your behalf, in the case; we have read the motion more

20 succinct on behalf of Mr. Cerkez; and we have read the

21 Prosecution response, and so what we would like to hear

22 from you is any comment you have on the Prosecution

23 response and deal with any matters which we want to

24 raise.

25 There is no need to go over all the matters in

Page 16608

1 the original pleading.

2 MR. SAYERS: What I had planned to do,

3 Mr. President, in fact, I prepared an outline of the

4 argument that we have prepared to make today, which I'd

5 like to distribute, if I may. If the Court has any

6 particular questions on the items that we want to zero

7 in on, I'd be more than happy to respond, and I will

8 say that as I understand the Prosecution's brief, the

9 Prosecution expressly states that they do not intend to

10 respond point by point to the arguments made by

11 Mr. Kordic specifically. In fact, there is no detailed

12 response to the recitation of the evidence that we

13 included with as much care as we possibly could in the

14 submissions that we made to the Court.

15 As I understand it, basically the Prosecution

16 articulates, in the first 20 or so pages of their

17 brief, their view of the applicable standard of review

18 of motions made pursuant to Rule 98 bis, and we will

19 address that.

20 They then essentially go on to recite the

21 allegations made in the amended indictment. There's a

22 brief summary of the Prosecution's view of the evidence

23 against Mr. Kordic, and a rather more elaborate and

24 detailed summary of the evidence against Mr. Cerkez.

25 But as I understand it, the Prosecution stated they had

Page 16609

1 no intent to make any detailed response to our brief,

2 saving that, rather, for today.

3 So if I may, Your Honour, I'd just like to

4 distribute an outline of the argument and explain to

5 you who from our side will be doing what, and we'll try

6 to be as succinct as possible, obviously.

7 JUDGE MAY: Let me make the point again.

8 There is no need to repeat what's in your pleading.

9 You can answer what the Prosecution have said, but we

10 don't want to hear constant repetition.

11 Yes, Mr. Sayers.

12 MR. SAYERS: And bearing that in mind, Your

13 Honour, although I have prepared a very extensive oral

14 argument today, let me just touch briefly upon the

15 points in a succinct manner as possible.

16 Let me just start by saying obviously there

17 is a mountain of evidence in this case, but I hope

18 we've shown the Trial Chamber that very little of it is

19 of any specificity against Mr. Kordic. And we are

20 mindful of the magnitude of the pleadings that we have

21 filed, and we apologise for their length, but the

22 seven-day requirement of Rule 98 bis imposes

23 significant obligations upon Defence counsel in a case

24 of this sort, and I apologise for transferring those

25 obligations to the Trial Chamber and to the

Page 16610

1 Prosecution, but to quote Blaise

2 Pascal: "Unfortunately, we did not have time to make

3 the submission any shorter."

4 As we see it, the two essential theories that

5 are articulated in the amended indictment and which are

6 addressed by the evidence are a theory of command

7 responsibility under Section 7(3) of the Tribunal's

8 Statute, and I will handle any questions the Court has

9 on that particular subject with the exception of the

10 standard of review, which I will touch on very lightly

11 and give Mr. Kordic's view, and if the Court has any

12 detailed questions on the standard of review, although

13 it seems rather uncontroversial, Mr. Smith will address

14 those.

15 JUDGE MAY: The standard of review is

16 uncontroversial?

17 MR. SAYERS: Well --

18 JUDGE MAY: Extremely controversial, I

19 would have thought, judging by your pleadings.

20 MR. SAYERS: In our view, Your Honour, the

21 leading case on the application on the Rule 98 bis,

22 which was existed only since November 30th last year,

23 is the Jelisic case, which is consigned to a footnote

24 in the Prosecution's submission. The reason we would

25 respectfully submit to the Trial Chamber that the

Page 16611

1 standard of review is uncontroversial is because the

2 standard is outlined in paragraph 108 of the Jelisic

3 case in black and white.

4 Let me just recite that. The Court said in

5 paragraph 108:

6 "All things considered, the Prosecution has

7 not established beyond all reasonable doubt the charge

8 of genocide made against Goran Jelisic in connection

9 with the crimes in the detention camp at Brcko."

10 The Court said:

11 "The Trial Chamber therefore concludes that

12 it has not been proved beyond all reasonable doubt."

13 And this was on, by the way, a motion for

14 judgement -- actually, it was a consideration of Rule

15 98 bis issue made ex proprio motu by the Trial Chamber,

16 not upon application by the accused in that case.

17 The Court said:

18 "It has not been proved beyond all reasonable

19 doubt that the accused was motivated by the dolus

20 specialis of the crime of genocide. The benefit of the

21 doubt must always go to the accused. Consequently,

22 Goran Jelisic must be found not guilty on this count."

23 JUDGE MAY: Just pause there. Now, that was

24 a case in which the Trial Chamber were about to acquit

25 Jelisic, which is what they did.

Page 16612

1 Now, of course, that is open to us here. But

2 what we are doing is considering, at this stage of the

3 case, what is the test that we have to apply in

4 reviewing the evidence. And you will see there is an

5 extensive recitation of authority in the Prosecution

6 brief dealing with national authority, and also the

7 other cases, Celebici and Tadic, in this Tribunal.

8 Now, what we have to determine is whether

9 there is sufficient evidence to support a conviction.

10 That means to sustain a conviction; evidence which is

11 adequate for that purpose.

12 Now, you will tell me if I'm wrong, but it

13 looks as though the wording in the Rule came from the

14 United States federal rules, which seems to be the only

15 jurisdiction in which the sort of test which you say

16 should be applied is applied. In all other

17 jurisdictions, and indeed in Tadic and Celebici, both

18 cases, of course, before Rule 98 bis, but the Trial

19 Chambers in those cases, and in other jurisdictions,

20 apply what may be thought to be the usual test at this

21 stage, which is: Is there evidence on which a

22 reasonable Tribunal, properly directing itself as to

23 the law, could convict? It's not a question of

24 establishing burdens of proof and that sort of thing.

25 It's a question of looking, as a matter of law, to see

Page 16613

1 whether there is the evidence upon any charge on which

2 a Tribunal, as I say, a reasonable Tribunal, could

3 convict.

4 Now, the test which you postulate and which was

5 applied in Jelisic is the test which is applied at the

6 end of a case, when you are reviewing all the evidence,

7 and our Trial Chamber is reviewing all the evidence,

8 deciding what weight to give it, and then deciding

9 whether the case is proved beyond a reasonable doubt.

10 Now, that is a plausible reading of the law.

11 Some would say it is the correct reading of the law.

12 But that's the argument that you've got to deal with.

13 And you may like to consider this

14 proposition: If your submissions are right, it would

15 mean that the Trial Chamber, if satisfied beyond a

16 reasonable doubt, would have to convict at this stage,

17 which would mean that the Defence would have to call

18 evidence and would have to call evidence on every

19 point. And that doesn't seem to me to be part of the

20 adversarial system.

21 And what you have done is to transpose the

22 final test and try and make it a test to be applied at

23 this stage. That, as I say, is a reading of the law,

24 which some might find convincing.

25 So, far from being uncontroversial, it may be

Page 16614

1 it's your submission which is controversial.

2 MR. SAYERS: Very well, Your Honour. It may

3 be that our submission is controversial, but the only

4 decision I believe to interpret Rule 98 bis to date is

5 the Jelisic decision, and the Jelisic decision

6 articulates the Rule, which is the basis of our

7 submission.

8 The reason that I said it was uncontroversial

9 is precisely because that was the standard that was

10 adopted in Jelisic. And we had not anticipated that

11 there would be such an extensive challenge to that

12 particular proposition.

13 But let me just say, Mr. Smith is prepared to

14 address the detailed issue presented by Rule 98 bis and

15 the standard of review. I'll turn the podium over to

16 him. Thank you.

17 MR. SMITH: Thank you, Your Honours. The

18 argument that we present on Rule 98 bis and its

19 standard is predicated on several propositions.

20 The first is that the Prosecution has the

21 burden, and the entire burden from the outset, of

22 proving guilt beyond a reasonable doubt. And it has

23 the obligation as it presents its case and before it

24 rests its case to prove, to present evidence that

25 proves guilt in its judgement beyond a reasonable

Page 16615

1 doubt.

2 In other words, it does the best job it can.

3 And once it has rested its case, that is, as far as the

4 evidence the Prosecution has chosen to lead, as good as

5 it gets. That's the high-water mark, if you like, of

6 the Prosecution's case.

7 And the defendant, because of the burden to

8 go forward and present a case by the Prosecution, has

9 no obligation to present a case himself, he has a right

10 to present that case should, in his judgement, the

11 Prosecution get beyond the goal line, if you like, in

12 presenting his case.

13 Now, the Rule that looks to the reasonable

14 court test was developed originally in the context of

15 jury trials, both in the United States and in the

16 United Kingdom. Indeed, the Galbraith decision is a

17 jury case. In that situation, the person making the

18 decision at the end of the Prosecution case is not the

19 ultimate trier of fact and thus is not empowered, if

20 you like, at that stage to withdraw the case from a

21 jury unless it is satisfied that no reasonable juror

22 could conclude that the person was guilty, the

23 defendant or the accused was guilty.

24 Now, the Prosecution cites -- let me back off

25 a moment. In the United Kingdom, a commentator,

Page 16616

1 Archbold, has recognised that where the judge himself

2 is the ultimate trier of fact and there is no jury or

3 other party who will normally make the decision on the

4 facts, that in that situation, the judge should, logic

5 compels, judicial efficiency compels, that the judge

6 not ask himself at that stage what he would do at the

7 end of the case. The Prosecution has made its best

8 case, and the judge judges on the basis of that case.

9 In the United States, the Prosecution has

10 presented one old District Court opinion, that the

11 normal jury rule, which is much discussed, because

12 generally accused have required juries in the United

13 States, has also been applied in the context where

14 there is just a trial to the judge, and it is our

15 argument that the logic of the rule is wholly lacking

16 when the judge himself, or the Judges in this case, are

17 the ultimate triers of fact, and that judicial

18 efficiency is far better served for the judges to

19 decide, when the Prosecution has taken its best shot,

20 whether the case needs to go forward; in effect,

21 whether this should be the end of the case.

22 Now, we have interpreted that --

23 JUDGE MAY: May I interrupt you for a

24 moment.

25 MR. SMITH: Yes.

Page 16617

1 JUDGE MAY: If as in Jelisic the Trial

2 Chamber come to that conclusion, then, of course, they

3 then have to apply the reasonable doubt test. They

4 have to say, if they're going to stop the case

5 altogether, that they are satisfied that the

6 Prosecution have not satisfied them beyond reasonable

7 doubt. It is, if you like, the ultimate test, using

8 that expression.

9 But here where -- for the sake of argument,

10 let us say there is some evidence on a particular

11 count -- the issue is whether, if there is some

12 evidence, the Tribunal should at this stage decide

13 whether they convict on the count or not, and that is

14 what I suggest is the wrong or may be the wrong

15 question. There may be circumstances where the

16 evidence is so totally discredited or so totally

17 unreliable that a Trial Chamber could feel that it

18 could not rely on it, or there may be cases where there

19 is simply no evidence at all or it's insufficient to

20 carry the inference which the Prosecution invite a

21 Trial Chamber to draw, and it may be that in those

22 extreme cases that a Trial Chamber should direct an

23 acquittal at this stage, but it would then have to ask

24 itself that question.

25 But overall, the question is: Is there

Page 16618

1 evidence on which the Trial Chamber could convict?

2 It's a question of what the Trial Chamber has to ask

3 itself.

4 I might just add this: that from my

5 knowledge, although you're right about Galbraith and

6 the way that that test was developed in the context of

7 the jury system, there is, certainly in England, a

8 system, as you may know, of magistrates who sit in

9 courts of three and are the judges of law and of fact,

10 and as far as they're concerned, the test in a practice

11 direction is whether there is evidence on which a

12 reasonable court could convict. So although of course

13 one also has to have regard to the jury context, it's

14 not always the case that it makes a major distinction.

15 MR. SMITH: Yes, Your Honour. And I would

16 start, in dealing with that, by saying that it seems to

17 me there cannot and should not be two standards under

18 Rule 98 bis. Rule 98 bis operates at the end of the

19 Prosecutor's case on two actuating mechanisms. One is

20 the motion of the accused, and the other is the option

21 of the Judges proprio motu which was the situation in

22 Jelisic.

23 It seems to me, in any case, that if the

24 Judges had themselves the opportunity to acquit the

25 defendant if they did not believe the evidence

Page 16619

1 sufficient on a reasonable-doubt test, that the accused

2 has necessarily, by implication, to have the

3 opportunity to attempt to persuade the judges of that

4 conclusion.

5 In the United Kingdom case, I'm not familiar,

6 not being from that jurisdiction, with the ins and the

7 outs, but I had thought that it was indeed the summary

8 proceedings before a magistrate situation that Archbold

9 was addressing, and the Prosecution just pointed out

10 that there is at least a case undercutting the

11 conclusion that Archbold reaches, but I submit to you

12 that the logic of what he has said is what drives his

13 conclusion and our argument, and that logic is driven

14 also by judicial efficiency. If the judges can see,

15 when the Prosecution has taken its best shot, that it

16 did not present enough evidence to convict, then

17 judicial efficiency is served by dealing with the case

18 right then. The Defence has a right to proceed and put

19 on additional evidence.

20 It seems to me the Defence is not under any

21 duty, because it is always the Prosecution which bears

22 the burden of proving guilt beyond a reasonable doubt.

23 And the Prosecution has taken its shot at doing that

24 and has rested its case, and it has no opportunity to

25 put on additional evidence except in rebuttal to what

Page 16620

1 the Defence presents in its case.

2 It seems -- we had interpreted it indeed, and

3 one of the reasons we thought this was uncontroversial,

4 we had seen the use of the reasonable judge standard in

5 the Celebici and Tadic cases, and then we had then seen

6 the Tribunal enact Rule 98 bis, with language that we

7 thought, because it dealt with the close of the

8 Prosecution case, the Trial Chamber finding

9 insufficient evidence to sustain a conviction and being

10 required, shall order entry of judgement of acquittal.

11 We had interpreted Rule 98 bis, possibly in

12 error, as being a considered view by this International

13 Tribunal, which is not bound by the both corpus of

14 jurisprudence and perhaps, we submit in this case,

15 mistakes in the context of the judge as an alternate

16 trier of fact of the law of national jurisdictions. We

17 had thought that was what the Tribunal was doing, and

18 we thought it wise and exactly the right decision.

19 And I should point out that in the civil law

20 context, in the common law context, I pointed to this

21 issue of the fact that there is no jury here. There is

22 no other person to decide. In the civil law context,

23 pointed to by the Prosecution, the decisions made

24 before the Trial Judge takes the case are made by

25 persons other than the Trial Judge.

Page 16621

1 And at that stage in the civil proceeding,

2 any person making a decision, in effect, in place of

3 the Trial Judge, must apply or may logically apply a

4 standard that is not simply making a decision on the

5 merits.

6 And once the trial commences in a civil

7 proceeding, it is simply structured differently than it

8 is both at common law and here in this adversarial

9 process. There is no -- the judge takes command. The

10 judge tries the case. There is no Prosecution puts on

11 its case, makes the best case it can, and then we see

12 whether it is necessary for judicial resources, and the

13 resources of the defendant, to be employed further in

14 the process. And that at base -- our argument is based

15 on logic, on what we see as a misperception and

16 misapplication of a jury-based rule, with judge as

17 ultimate trier of fact context. And the fact that this

18 Tribunal is an International Tribunal, stands at the

19 threshold, needs the assistance of judicial efficiency.

20 And we think, based on the Rule as enacted,

21 if the Judges may consider and dismiss an indictment,

22 then the Defence has to be given the opportunity to

23 make that argument. And that is what we have done.

24 JUDGE MAY: You are entitled, of course, to

25 make the arguments, but it's a question of what test

Page 16622

1 the Court has to apply. And if you are right in saying

2 that the Chamber should order the entry of judgement of

3 acquittal, if it finds that a case is not proved beyond

4 reasonable doubt, then, presumably, the Rule would have

5 said that.

6 There is a distinction between what the Trial

7 Chamber said in Jelisic, when it said it wasn't

8 satisfied beyond reasonable doubt, that was its

9 finding, and the question which a Trial Chamber

10 necessarily has to ask itself, or you ask the Trial

11 Chamber to find, namely, that in each case it has to go

12 through the indictment and satisfy itself at this stage

13 that the case is proved beyond reasonable doubt. It's

14 not what the Rule says. And it doesn't necessarily

15 follow from the finding in Jelisic that that's what the

16 Trial Chamber should do.

17 MR. SMITH: Your Honour, it seems to the

18 Defence that the issue involved in the interpretation

19 of Rule 98 bis is whether there is a good reason for

20 the trial to go forward, if the Trial Chamber can see,

21 based on the evidence, the best case the Prosecution

22 can put on and they have then rested, that it needs to

23 do so.

24 Now, that involves some greater work for the

25 Trial Chamber mid-case than otherwise, and the

Page 16623

1 Prosecution has pointed this out. But in the long-term

2 interests of efficiency, it seems to me -- particularly

3 given the length of these trials and the period of

4 Pre-Trial detention that these prisoners, these accused

5 suffer in coming to trial, that long-term efficiency is

6 far more greatly served by the Trial Chamber looking

7 carefully at the evidence at this stage and asking

8 itself, since it is the ultimate trier of fact, it need

9 not hypothesise what someone else would do, if it sees

10 that the Prosecution has failed, and we believe the

11 Prosecution has, and have said so, then it seems to us

12 this is the appropriate time to end the case.

13 JUDGE ROBINSON: Mr. Smith, I was fascinated

14 by your formulation on "good reason." It depends on

15 what you mean by "good reason." I think I would accept

16 "good reason" if by that you mean that there is

17 evidence which raises the legal possibility of

18 conviction, as distinct from the certainty of

19 conviction. Good reason, I think, doesn't mean much

20 more than some reason, some lawful reason.

21 You have been referred to the system of

22 trials by magistrates, who are triers both of law and

23 fact in some jurisdictions. It has happened in some

24 jurisdictions where that system applies that a

25 magistrate will rule that there is a case to answer.

Page 16624

1 The Defence calls no evidence whatsoever, and the

2 magistrate acquits. The magistrate acquits because he

3 is applying, at the end of the case, a totally

4 different standard from the standard which he applies

5 at the halfway stage. At the end of the case, he

6 applies a standard of proof beyond reasonable doubt.

7 At the midway stage he is applying the lower standard of

8 what I call the legal possibility as distinct from the

9 certainty of conviction.

10 I doubt whether the test of proof beyond

11 reasonable doubt is one that would inure to the benefit

12 of the accused. Because if the ruling were to be made

13 on that basis, surely it would be very difficult

14 thereafter to secure an acquittal. Either very

15 difficult or -- either impossible or very difficult to

16 secure an acquittal thereafter. I don't believe that

17 that was what was intended at all.

18 I will agree that the formulation of Rule 98

19 bis is perhaps not as apposite as it might have been;

20 that it might be open to the interpretation that you

21 give it. But I think when you read it against the

22 background, when you read it against the background of

23 the travaux, the history, I think it is clear that it

24 is addressing the situation at the halfway stage, and

25 not the situation at the end of the case. And that the

Page 16625

1 applicable standard, therefore, could not be the

2 standard which is applied at the end of the case.

3 I think that would give rise to interminable

4 difficulties.

5 MR. SMITH: Yes, Your Honour. If I may

6 address some of those points as well as I may.

7 On the question of whether it puts the

8 Defence in an untenable position. I would too have the

9 test applied at this stage. I would suggest that the

10 Defence always, as a practical matter, but not as a

11 matter of law, of duty, has an obligation to put on a

12 case, and to assume that the Prosecution has gotten

13 over the goal line, when it has rested its case. It

14 would be entirely imprudent for a defendant to make any

15 other assumption; very risky for a defendant to make

16 any other assumption.

17 And a formulation that, in the absence of a

18 jury or other decision-maker, does not require the

19 Trial Chamber now to test the Prosecution's case

20 rested, made it its best, in our judgement relieves, in

21 a sense, the Prosecution of the burden of making the

22 best case it can the first time around, before it

23 closes its case. Again a question of efficiency.

24 And it furthermore throws on the Defence a

25 burden of going forward to put on a case when, in our

Page 16626

1 judgement, it should not have to do so; in a case in

2 which, if the Trial Chamber were to focus, it would

3 have concluded that the Defence was made -- rather,

4 that the Prosecution has not proved guilt beyond a

5 reasonable doubt now. And it does not so focus. It

6 forces the Defence to spend additional resources to go

7 through a trial, judicial resources to be expended in a

8 situation in which the Defence should have no burden to

9 go forward. Or it should have only the right to oppose

10 the Prosecution, but it is always on the Prosecution to

11 prove guilt beyond a reasonable doubt, and in an

12 adversary system, that opportunity is at the beginning

13 of the trial before the Prosecution rests. Because

14 after they have rested, their only right is to rebut

15 matters brought forward by the accused.

16 And our submission is that as an

17 International Court you are free from the corpus, to

18 reconsider the corpus of law, and should do so and make

19 your judgements about what you think is most efficient

20 and what you think is the fairest procedure,

21 considering the obligations on the Prosecution and the

22 rights of a defendant, and judicial efficiency, given

23 the type of cases you face and whatnot.

24 JUDGE MAY: Well, all that we would accept,

25 of course. And certainly we have in mind the length of

Page 16627

1 the case and our powers in relation to it, and the fact

2 that it's an international tribunal. But we still have

3 to apply the practical law.

4 If you are right, as Judge Robinson points

5 out, the effect of what you are doing would be that at

6 halftime in a case you would have the trier -- Trial

7 Chamber, if ruling against the Defence, effectively

8 ruling for a conviction. You therefore remove the

9 opportunity of submitting, as you would in front of the

10 magistrate that Judge Robinson mentioned, submitting at

11 the end of the case: Well, there is some evidence, but

12 it doesn't amount to anything, and therefore you can't

13 be satisfied beyond reasonable doubt.

14 You have removed that possibility, because

15 you've had the Trial Chamber rule at half-time that

16 they are satisfied beyond a reasonable doubt. So you

17 would effectively remove that argument from the

18 Defence.

19 You would also put the Defence, as I said

20 earlier, in the position of having to call evidence if

21 it wanted to secure an acquittal. Now, is that,

22 really, if you think about it, in the Defence -- the

23 accused's interests to be boxed in in that way?

24 Because that's the effect of your test if we were to

25 apply it.

Page 16628

1 MR. SMITH: Your Honour, I would answer that

2 two ways. The first is that you may have removed the

3 opportunity at the end of the case of moving for a

4 judgement based solely on the Prosecution evidence, but

5 you gave the Defence that opportunity when the

6 Prosecution's evidence had closed. And at the end of

7 the case, the Defence will generally have put in

8 additional evidence, perhaps with rebuttal evidence,

9 and it is then a different question, because the Judges

10 are looking at a different corpus of evidence.

11 So while you remove the opportunity at the

12 end of the case to test solely only the basis of the

13 Prosecution's evidence, you have given it to the

14 Defence at the time it should be given, as a matter of

15 efficiency, when the Prosecution has rested and done

16 its best.

17 Secondly, as to the question whether there is

18 detriment to the Defence because there is an implicit

19 decision, after the Prosecution's requested if the

20 Defence fails under our test, that the evidence at that

21 stage is sufficient to convict, you've given the

22 Defence the opportunity to test it, and the Defence has

23 the right to put on additional evidence. And if the

24 Defence makes a request and it fails, you can be very

25 certain that the Defence will indeed put on additional

Page 16629

1 evidence because it will know, implicitly, that it must

2 do so.

3 I see no disadvantage to the Defence when you

4 give it the right to test to the Prosecution's case

5 once the Prosecution has taken its best shot, and then

6 the Defence has the right to go on.

7 JUDGE MAY: Thank you. Unless anybody else

8 has a point.

9 Yes, Judge Bennouna.

10 JUDGE BENNOUNA: [Interpretation] Mr. Smith,

11 one last question to you, please. I am not from a

12 common-law culture, so I will speak from a rather

13 different point of view.

14 As you have said, we are here, part of an

15 international tribunal, and as members of such a

16 tribunal, we have to take into account the different

17 sources of law which we might use in order to establish

18 our general principles of function, but we are an

19 international tribunal, and as you have said, we are

20 not linked by one system, rather, by another, and we

21 are not either bound by the decisions taken by another

22 Trial Chamber. Let me add that in passing. The only

23 thing that interests us is to know whether or not the

24 Appeals Chamber has given any decision which might be

25 of application in our particular trial or may be useful

Page 16630

1 as a decision to turn towards when need arises.

2 But there is something that bothers me

3 somewhat, and maybe it is something that arises from

4 the very way Rule 98 bis is written. Rule 98 bis and

5 the Jelisic decision do not say that the evidence put

6 forward are not sufficient to declare the culpability

7 of the accused. They say they can justify

8 condemnation -- a conviction, sustain a conviction.

9 There was something that was said by

10 Mr. Cerkez's Defence counsel in order to explain this

11 expression of "sustain a conviction". What does it mean

12 to sustain a conviction? It means something that can

13 be at the very basis of a possible conviction. And if

14 it is something that can sustain a possible conviction,

15 it means that there is some evidence that has been

16 presented that have enabled the Judges to go beyond the

17 prima facie test, elements of proof, evidence that can

18 be used as a reasonable basis for a possible

19 conviction, which is not to say that at this particular

20 stage of the procedure, that we find ourselves in the

21 position that allows ourselves to give to the evidence

22 its true weight.

23 Are we able, at this stage, to determine

24 whether or not that element of proof or that evidence

25 is indeed one that has to be considered? You have the

Page 16631

1 problem of the evidence, and then you have the problem

2 of the indicia of reliability that you can attribute to

3 that evidence. Of course there is some evidence, but

4 that's not enough. You have to further analyse the

5 evidence submitted to you. Is this evidence enough to

6 lead someone to say that an accused will be convicted

7 beyond all reasonable doubt? And that is the ultimate

8 test, the ultimate phase.

9 Why is that so? Well, because in all

10 conscience, in order to come to what is called in other

11 legal systems, in order to convince one's self

12 intimately of the guilt of an accused, you have to have

13 all the elements, and that includes the evidence

14 presented by the Defence. Only then can you establish

15 proof. Only then can you attribute to the various

16 evidence their true weight and estimate their

17 reliability.

18 Now, of course you will tell us, but in the

19 adversarial system there is cross-examination of the

20 witnesses, and by cross-examination you have gathered a

21 number of elements and information, but we have not

22 gathered all the information we need, and this idea of

23 proof beyond a reasonable doubt implies that we have

24 all the information, all the data between our hands,

25 and that is the reason for which the system provides

Page 16632

1 for the Defence the possibility of taking the floor

2 once the Prosecution has put its case forward and has

3 tried to justify its allegations. The Defence is

4 allowed to give its interpretation of the facts.

5 This is the reason why what Judge Robinson

6 says to you is so interesting. The test to be applied

7 midway through the trial is not to be applied at the

8 end of the trial.

9 Up to now, I haven't heard you tell us in

10 what way there is a difference between the test that

11 you wish us to apply midway through and the test that

12 would be applied at the end of the procedure when there

13 should be a difference. Otherwise, the adversarial

14 system, which we're mentioning in this debate, would

15 not be satisfactorily constructed. It would not be a

16 reasonable system. If you can apply the same test

17 midway through the trial and at the end of the trial,

18 then one wonders what good it is to go to the very end

19 of the trial. At the end of the trial, one is supposed

20 to benefit from additional information, from additional

21 data which enables one to give better weight to the

22 evidence, elements which one does not benefit from

23 midway through the trial.

24 Now, in some legal systems, you have this

25 idea of prima facie. This is something that all

Page 16633

1 international legal specialists know of, and there have

2 been a lot of decisions taken, among others, by the

3 International Court of Justice, which explained this

4 prima facie test.

5 So in that particular sense, I do accept that

6 the evidence, as submitted, has to go beyond the prima

7 facie test in order for the Tribunal to take a decision

8 on the basis of Rule 98 bis. However, this is not

9 something that you can apply to the very end. That

10 does not interfere with the fact that you have to prove

11 facts beyond reasonable doubt, and this test of proof

12 beyond reasonable doubt marks the very end of the

13 process. Prima facie marks the beginning of the

14 process. Proof beyond reasonable doubt marks the end

15 of the process and the possible conviction of the

16 accused. But in between, you have to find a particular

17 test to apply, and this is at the very core of our

18 argument today.

19 This is what I mean to tell you, Mr. Smith.

20 This is what my reactions are to your arguments, and

21 maybe you have some additional remarks you would wish

22 to make.

23 MR. SMITH: Yes, Your Honour, let me see if I

24 can shed light on my views. Take the prima facie test

25 initially. There is a prima facie test established in

Page 16634

1 the Statute, Article 9, section 1, for the confirmation

2 of an indictment. I would argue that that test must be

3 at least as stringent as the reasonable court test,

4 reasonable Trial Chamber test, because it should not be

5 possible to confirm an indictment on the basis of facts

6 on which a reasonable Trial Chamber could not convict a

7 person, and it is on that basis that it seems to me

8 that is the stage at which this is the relevant

9 question.

10 Now, let me address also the reasonable Trial

11 Chamber test itself. That test has three very

12 important characteristics. First, the question asked

13 necessarily is: Could a reasonable Trial Chamber

14 convict under a beyond the reasonable doubt test? So

15 the beyond reasonable doubt test is built in

16 necessarily, even to the test the Trial Chamber would

17 apply at this stage, even under the theory argued by

18 the Prosecution.

19 Secondly, under that very same test, evidence

20 must be weighed. Its credibility must be weighed,

21 because, of course, what is at issue is whether a

22 reasonable Trial Chamber could convict on the basis of

23 the evidence, and to make that judgement, you must

24 consider credibility and weight in the question of

25 whether they could convict under the beyond a

Page 16635

1 reasonable doubt test.

2 Third, having then formulated those first two

3 propositions in that way, there is no place at all for

4 arbitratory presumptions. Having formulated the test

5 as what a reasonable Trial Chamber would do, you have

6 built the deference into the standard from the outset,

7 and there is, therefore, no place for artificial

8 presumptions in favour of the Prosecution, et cetera.

9 So that, in effect, many of the difficulties

10 you consider you face with the rule we propose, I

11 submit you face already applying a reasonable Trial

12 Chamber standard at this point in time.

13 Now, on the question of midpoint versus end

14 point, and whether we are talking about the same test.

15 We are talking about the same test, because always the

16 guilt of the accused must be judged under the same

17 test.

18 And the point here is, and the essential

19 point, I think it goes absolutely to the heart of the

20 issue, in an adversary proceeding where the Prosecution

21 has the burden of proving in guilt, entire burden of

22 proving guilt beyond a reasonable doubt, the half point

23 of an adversary proceeding can and should be in proper

24 cases the end point. And it is fundamentally different

25 from a non-adversary, civil law procedure in which a

Page 16636

1 judge simply says to himself: I want to listen to all

2 of the evidence, and I will direct the proceeding. And

3 I want all the evidence in front of me.

4 In an adversary process, all of the evidence

5 the Prosecution is entitled to present is in front of

6 the judges when they rest their case. That is at the

7 very heart of the adversary process. The Prosecution

8 has that burden. And that burden cannot and should not

9 be shifted to the defendant where there is no reason

10 for doing it. And where there is no jury, where the

11 judge, the same judge making the decision now will make

12 the decision at the end of the case, there is no good

13 reason or rationale.

14 And in our judgement, the long-term judicial

15 efficiency argues very strongly in testing the

16 Prosecution's case when they have finished and rested,

17 in putting forth their case. That is their

18 opportunity, to put on evidence about the guilt of the

19 accused. And after that they have no right, other than

20 one of rebuttal.

21 And the judge is in a fundamentally different

22 position than in a non-adversary proceeding. And I

23 will be glad to answer any further questions, Your

24 Honour, but, in short, those are the reasons why we

25 have argued the position we have.

Page 16637

1 JUDGE MAY: Thank you, Mr. Smith. I think

2 what would be most helpful now is this: I've seen the

3 outline of the argument. It seems to me that it covers

4 a great deal of the material which is already in the

5 brief, and it won't be of great assistance, but of

6 course we'll hear what argument you have. But let us

7 not waste too much time going over old matter.

8 What I think we would find to be -- what

9 would be of assistance is dealing with any counts on

10 which you say there is no evidence at all, if there are

11 any, or on which you say the evidence is not

12 sufficient, as the rule says, to convict.

13 We'll move away from the test for the

14 moment. If you'll deal with the factual elements.

15 MR. SAYERS: Yes, Your Honour. I take it

16 that the Trial Chamber does not want to hear a

17 rearticulation of our views or our submissions relating

18 to the principles of superior responsibility or command

19 responsibility under Section 7(3), and that's fine. I

20 think we've outlined those fully in our brief, and

21 there doesn't appear to be too much point in going over

22 them, other than to emphasise just this one point.

23 And that is that the general principles, I

24 think, are outlined in the Celebici case. And the

25 Court there stresses the importance of taking great

Page 16638

1 caution, when principles of superior responsibility, or

2 command responsibility, are stretched beyond the normal

3 confines of that doctrine, which is in the context of

4 the military chain of command. Where you have military

5 superiors, military subordinates, that's the context in

6 which the test was generated, and that's the context in

7 which it's most appropriately applied.

8 With respect to civilian alleged superiors,

9 though, very difficult questions are posed. And the

10 Celebici case makes it clear that the doctrine can

11 extend to civilian superiors, but only to the extent

12 that they exercise a degree of control over their

13 subordinates that is similar to that of military

14 commanders.

15 And I cite paragraph 389 of the Celebici

16 diagnosis.

17 THE INTERPRETER: Could the counsel please

18 slow down for the benefit of the interpreters. Thank

19 you.

20 MR. SAYERS: And indeed the Court there

21 stressed that great care had to be taken, lest an

22 injustice be committed, in holding individuals

23 responsible for the acts of others in situations where

24 the link of control is absent or too remote. It's the

25 link of control that the Celebici case appropriately

Page 16639

1 emphasises.

2 Just to respond very briefly to one of the

3 issues raised by the Prosecution in this regard, Your

4 Honour, or Your Honours. The Prosecution cites to a

5 decision from the Rwanda Tribunal in the Kayishema and

6 Ruzindena case, saying that -- this is page 30 of the

7 Prosecution's brief: Powers of influence are

8 sufficient to impose superior responsibility. That's

9 it, says the Prosecution. If you are a man of

10 influence, of whatever undefined nature, that's enough

11 to make you potentially responsible under Section 6(3)

12 of the Rwanda Statute, which is the analog of

13 Section 7(3) of this Tribunal's Statute.

14 But we submit that the Kayishema case was

15 very careful to make clear the circumstances in which

16 superior responsibility applies to civilians. In

17 paragraph 216 of the Kayishema decision, the Trial

18 Chamber there said:

19 "The crucial question is not the civilian

20 status of the accused, but of the degree of authority

21 he exercised over his subordinates."

22 And in paragraph 222, the Court says it's

23 really a test of effective control, and then concludes

24 with paragraph 229 on this note:

25 "The principle of command responsibility must

Page 16640

1 only apply to those superiors who exercise effective

2 control over their subordinates. The material ability

3 to control the actions of subordinates is the

4 touchstone of individual responsibility under

5 Article 6(3) of the Rwanda Statute."

6 We think, without belabouring all of the

7 extensive discussion concerning the principles of

8 superior responsibility, that that really is the focus

9 of the question that the Court must ask itself: Has

10 the Prosecution in this case proven a case of superior

11 responsibility under Section 7(3) under whatever

12 standard the Trial Chamber decides is the appropriate

13 standard to apply under Rule 98 bis?

14 I will also point out that there is one gloss

15 on this rule that comes from the Aleksovski case, and

16 that is that -- in connection with the Aleksovski Trial

17 Chamber's observation, that a superior's powers to

18 impose punishment may not necessarily be essential in

19 considering whether a case of superior responsibility

20 has been made out.

21 And this was in the -- obviously in the

22 context of a prison commandant. The Aleksovski case

23 says we must also consider the possibility that reports

24 may be sufficient to provoke an investigation, reports

25 to the appropriate authorities, and that the superior

Page 16641

1 may be expected, under the appropriate circumstances,

2 to report crimes up the chain, if you like, of his

3 chain of civilian command to the appropriate

4 authorities, which will in all likelihood trigger an

5 investigation that might ultimately result in the

6 imposition of disciplinary or criminal measures or

7 punishment.

8 But the context in which that case was

9 decided was not one where infractions or crimes were

10 known to the appropriate authorities. And it was the

11 obligation of the defendant Aleksovski in that case to

12 stop the process by making reports up either to the

13 military or the civilian chain of command. It's not

14 applicable to a situation where investigations are

15 already underway.

16 And I just say that as an introduction to

17 specifically the Ahmici allegations and the Stupni Do

18 allegations, where it is clear that investigations were

19 initiated by the HVO authorities. And I'll address

20 those in just a second.

21 I was going to go into the separation of

22 military authorities from civilian institutions. I

23 recall very clearly, Mr. President, you asked me a

24 question during Sir Martin Garrod's cross-examination

25 on the question of the testimony that he had given

Page 16642

1 regarding intertwining of military and civilian

2 institutions. And the question that was posed to me

3 was: Was it conceded that there was an intertwining

4 throughout the period of the amended indictment of

5 military and civilian institutions? And the response

6 that I gave was it was not conceded because it's not a

7 fact.

8 It's absolutely clear that the -- after the

9 declaration of an imminent state of a threat of war by

10 the RBiH on April the 8th of 1992, the entire country

11 was in a state of confusion; the Croat political and

12 military authorities were in a complete state of

13 confusion. There was no distinct Croat -- Bosnian

14 Croat military. The political institutions and the

15 military institutions were all mixed up into one. And

16 I think Dr. Ribicic was helpful in explaining precisely

17 how the Bosnian Croats slowly organised themselves over

18 the succeeding seven months or so. And he identified

19 two particular points in time.

20 The first was July the 3rd, of 1992, when the

21 HZ HB authorities met. They passed a number of

22 decrees. This was the first time that a decree on the

23 armed forces was passed. But it's also significant

24 that the -- there was an amended decision relating to

25 the basic composition of the HZ HB which created, the

Page 16643

1 Trial Chamber will recall, the office of president.

2 The president, of course, was the supreme commander of

3 the armed forces under Article 29.

4 That was the point at which the civilian

5 authorities started to separate from the military

6 authorities, and that was a process that continued over

7 the course of the next few months. And it reached its

8 epiphany in October, on October the 17th of 1992, after

9 all of the institutions of the HVO government had been

10 established, the Prime Minister had been appointed, the

11 president of the HVO government, Dr. Jadranko Prlic,

12 all of the departments were established, including the

13 Department of Defence. And detailed roles of military

14 discipline had been adopted, the district military

15 Prosecutor's office had been established.

16 And Dr. Ribicic conceded, as he had to, that

17 at that time the civilian government had established

18 its organs and was operating. And the military

19 institutions had been established and were

20 appropriately governed and made subject to a separate

21 code of disciplinary procedures.

22 And I think the evidence is absolutely clear

23 from the Prosecution's own evidence that the Central

24 Bosnia Operative Zone was established and fully

25 operational under Colonel Blaskic's dominion by

Page 16644

1 November the 11th, 1992, as we stated in our brief.

2 By that time, it's absolutely clear that the

3 civilian and the military institutions had separated.

4 And I think that's important, when you take a

5 look at the evidence of the chain of command in this

6 case, a subject which we repeatedly revisited in

7 cross-examination, and I think --

8 JUDGE MAY: I don't want to interrupt you,

9 Mr. Sayers, but we must have some regard to the clock.

10 This is a matter which you rehearsed extensively in

11 your brief. Unless there is a particular point in

12 response to the Prosecution, I think you can take it

13 that we have your submissions on that topic.

14 MR. SAYERS: Yes. There is only one point

15 that I would like to make or add in respect to our

16 position that Mr. Kordic was not in the military chain

17 of command.

18 We think that the evidence is virtually

19 uncontroverted that he was not in the chain of

20 command. And the only evidence, and I'll address this

21 particularly when we get to the claims made regarding

22 Busovaca in January of 1993, the only evidence that

23 puts Mr. Kordic specifically in a military chain of

24 command is just -- is purely opinion evidence. And it

25 comes from Lieutenant-Colonel Stewart. And he gave an

Page 16645

1 opinion to the effect that Mr. Kordic, I believe, was

2 the military commander in Busovaca, based upon a

3 meeting that he had had with Mr. Kordic on February the

4 3rd of 1993.

5 But we also would like to address the Court's

6 attention to Brigadier Duncan's testimony on this

7 subject. He stated, on page 10465 of his testimony:

8 "As for Blaskic's status as commander, it

9 was quite clear to me he was very much the commander,"

10 and he articulated why. "He had a large headquarters,

11 well-equipped staff."

12 JUDGE MAY: There is no need to go over that

13 again. I think we have those submissions.

14 MR. SAYERS: All right. I'll pass to the

15 particular crimes section. I think that's what you've

16 addressed my attention to, Mr. President.

17 Are there any charges upon which there is

18 absolutely no evidence, is the inquiry. Yes. Count 1

19 makes a claim of -- a generalised claim of persecution

20 throughout the HZ HB/HR HB and the municipality of

21 Zenica in the territory of Bosnia-Herzegovina.

22 Now, I'll defer to Mr. Smith, who's going to

23 be handling the persecution claims made in Count 1, but

24 if I may, just by way of brief introduction, say this:

25 The amended indictment specifically charges that the

Page 16646

1 HZ HB, the Croatian Community of Herceg-Bosna,

2 consisted initially of 30, 3-0 municipalities and then

3 one additional municipality, Zepca, was added

4 subsequently to the founding of the HZ HB on November

5 the 18th, 1991. As to 24 of those municipalities,

6 there is quite simply no evidence of any persecution:

7 Jajce, Skender Vakuf, Kakanj, Kotor Varos,

8 Tomislavgrad, to name just a few.

9 Insofar as other municipalities are

10 concerned, let me touch upon the following: Travnik.

11 There is no evidence of any persecution of Bosnian

12 Muslims by Bosnian Croats in Travnik, Mr. President,

13 and the other Judges of the Trial Chamber. Major Hay,

14 and Colonel Morsink from BritBat and the ECMM basically

15 covered the entire area from April through October of

16 1993 and neither of them ever saw Mr. Kordic in

17 Travnik.

18 The only evidence of a particular problem in

19 Travnik occurs on April the 12th, 1993, when some

20 flags, I believe, were raised, or April the 8th to the

21 12th when flags were raised in Travnik, and they were

22 promptly torn down by members of the 7th Muslim Brigade

23 and set on fire and then there was a fight that

24 followed.

25 JUDGE ROBINSON: Mr. Sayers, are you dealing

Page 16647

1 with the specific issue or is Mr. Smith going to deal

2 with this, because I would prefer to hear the listing

3 of the 24 municipalities, the specific counts in which

4 you say there is no evidence, so that when the

5 Prosecution comes to reply, they can reply specifically

6 to that.

7 MR. SAYERS: Let me first --

8 JUDGE ROBINSON: If you just give us the

9 counts.

10 MR. SAYERS: Yes. The only municipalities as

11 to which evidence has been put on, I think, are these:

12 Travnik municipality; Kresevo, through Witness E;

13 Fojnica, through witness Stjepan Tuka; and then the

14 principal municipalities that are concerned in the

15 amended indictment, Vitez, Novi Travnik, Busovaca,

16 Zepca, Vares, and Kiseljak. As to all other

17 municipalities that were in the HZ HB, there is no

18 evidence. Therefore, we would submit to the Trial

19 Chamber that to the extent that the amended indictment

20 asserts that there was a persecution case made out in

21 those 24 municipalities as to which no evidence has

22 been put on, then those claims have to be dismissed at

23 this stage.

24 As I say, I'll leave the specifics to

25 Mr. Smith, but let me just address three particular

Page 16648

1 municipalities, if I may, Travnik, Kresevo, and

2 Fojnica.

3 I've already made the points that I wanted to

4 make with respect to Travnik. Let me just add to that

5 that according to the testimony of Witness AA, he was

6 called to address the particular problems that occurred

7 in the outbreak of fighting on April the 12th, and the

8 person with whom he dealt was not Mr. Kordic at all

9 but, rather, Mr. Valenta.

10 Insofar as the claims of persecution are made

11 regarding Travnik, they would appear to be completely

12 misplaced in view of the overwhelming, indeed

13 uncontroverted evidence of persecution going the other

14 way with the June 8th offensive launched by the ABiH

15 that resulted in not only 20.000 displaced persons,

16 according to the testimony of Witness AD, but also

17 atrocities in Maljina, Cukle, and Mileticic, according

18 to the evidence of Mr. Bower.

19 Turning to Kresevo, there is no evidence

20 connecting Mr. Kordic to any of the events in Kresevo,

21 Your Honours. No one suggests that he had anything to

22 do with any of the events there and, indeed, Witness E

23 never saw Mr. Kordic in Kresevo at any time, and

24 testified that as far as he was aware, he was the

25 vice-president of the HDZ and that's all; no military

Page 16649

1 capacity whatsoever. But that's the only evidence, I

2 believe I'm correct in saying, presented by the

3 Prosecution relating to Kresevo through Witness E.

4 And in connection with the municipality of

5 Fojnica, there are no crimes alleged, I believe,

6 against Muslims before Muslims launched their surprise

7 offensive on July 2nd, 1993. In fact, the evidence

8 shows that if there was persecution and discrimination,

9 it was discriminations by Bosnian Muslims against

10 Bosnian Croats in that jurisdiction. And I would

11 simply refer the Court's attention to the October the

12 10th, 1993 special report prepared by the ECMM that

13 states precisely that. It's Exhibit 2201/1 at tab 10.

14 Seven thousand people were expelled from

15 their homes, all Bosnian Croats. Only about 150 were

16 left in the municipality. Persecution and

17 discrimination was noted in the report, along with the

18 destruction of Croat villages and the looting and

19 pillaging of Croat houses, but no evidence or no

20 allegations of crimes against Muslims in the

21 municipality, and certainly, of course, no evidence

22 that Mr. Kordic would have had anything to do with such

23 crimes even if there were such, because he was only

24 seen there, according to Mr. Tuka, once, at a soccer

25 game.

Page 16650

1 And with that, with the Court's permission,

2 unless it has any questions for me, I'll just hand over

3 the persecution theory to Mr. Smith.

4 JUDGE ROBINSON: Thank you.

5 MR. SMITH: May it please Your Honours. Let

6 me address first but very briefly the Article 7(1)

7 questions, and I would remind Your Honours or urge that

8 on 7(1), as elsewhere, criminal laws must be narrowly

9 construed, and that in considering the question of

10 nullum crimen sine lege, one must consider the

11 interpretation one is giving to the law, not just the

12 question of whether murder was obviously a crime in

13 1991 or 1992. The question is: Did the accused have a

14 fair notice of the types of interpretations now being

15 made on, as it is said, aetiological or from purposive

16 analysis basis, in US parlance, as you are considering

17 the law to apply?

18 Also there are three situations involved in

19 this case that give reason for care. First, one is

20 dealing with theories of indirect liability; secondly,

21 one is dealing in most cases with circumstantial

22 evidence and inferences; and thirdly, one is dealing,

23 in most cases, in many cases, with hearsay evidence.

24 JUDGE BENNOUNA: [Interpretation] Allow me to

25 interrupt you, Mr. Smith. If I've understood you

Page 16651

1 well -- I'm listening to you in English, so I'm not

2 always sure I've got you right -- are you basically

3 telling us that the principle of nullum crimen sine

4 lege means that not only the rule exists before the

5 perpetration of a crime but also that the

6 interpretation of the rule can only be applied in a

7 rather narrow sense, at the moment the crime is

8 perpetrated. You speak of the rule but also the

9 interpretation of the rule. You mentioned this

10 particular rule of the law but also the interpretation

11 of this rule of the law, and you tell us that the

12 interpretation that is made of this rule is the one

13 that is in application at the moment when the crime is

14 committed. Is that what you're telling? Because that

15 being the case, I would ask for more explanations.

16 MR. SMITH: I have spoken --

17 JUDGE BENNOUNA: [Interpretation] I'd like to

18 follow your logic and your line of thought, because I'm

19 not following right now.

20 MR. SMITH: Indeed, and that is entirely my

21 fault, Your Honour.

22 What I intended to say was that in applying

23 the rule of nullum crimen sine lege, one must apply it

24 not only to questions as to substantive law, as to

25 whether this substantive law was the law at the time

Page 16652

1 when the action took place in 1992, 1993, 1994, but one

2 must also consider that same principle when considering

3 the expansive interpretations of an existing law that

4 was in effect at that time, that one is now, at a later

5 time, making or engaging in.

6 I'm saying the question of notice, given the

7 lack of maturity, if you like, of the substantive

8 humanitarian and criminal law being applied by this

9 Tribunal for the first time since World War II, as it

10 is working out the principles, giving them flesh,

11 giving them rationales and reason and extruding from

12 the basic propositions what the law really is and

13 really means, you must have firmly in mind the question

14 of the notice to the accused that the law in that form

15 and as so interpreted would have been apparent to him

16 had, in the middle of a civil war, had chosen and had

17 the opportunity to consult a lawyer prior to taking his

18 actions.

19 JUDGE MAY: Well, now, how does this relate

20 to whether there's a sufficiency of relevance under

21 Rule 98 bis?

22 MR. SMITH: Because, Your Honour, the

23 sufficiency of the evidence must be tested against the

24 applicable substantive law, and we have argued the

25 applicable substantive law as to Article 7(1), 7(3) in

Page 16653

1 our prior trial briefs, as to Articles 2, 3, and 5. So

2 that in order to make a determination about the

3 sufficiency of the evidence, you must have in mind some

4 view of the law to which you are applying the

5 evidence. We have argued and the Prosecution has

6 argued about the applicable law, and I'm simply

7 articulating a general principle that I think needs to

8 be borne in mind when you consider the legal issues.

9 Let me, as to 7(1), say only further that it

10 is our view that all of the offences charged under 7(1)

11 fail to come up even to a reasonable Trial Chamber test

12 insofar as sufficiency of the evidence is concerned,

13 but I am not now making an argument that there is no

14 evidence at all insofar as they are concerned.

15 Let me turn to prosecution -- persecution,

16 sorry, and make four simple points. The first relates

17 to the law to be applied on the question of mens rea,

18 and it is the mens rea point that we have raised in

19 this motion at this stage.

20 The definition of mens rea for persecution

21 stems, in effect, from the definition of a

22 discriminatory act found in the Kupreskic Trial

23 Chamber, and must be uppermost in Your Honours' minds.

24 That mens rea requirement, as is said there, is higher

25 than that for ordinary crimes against humanity, and the

Page 16654

1 inquiry is whether the evidence in this case shows

2 beyond a reasonable doubt a desire to deprive a defined

3 group of its fundamental rights -- and I'll come back

4 to this in a moment -- as laid down in international

5 customary or treaty law so as to remove the persons in

6 that group from the society in which they live or even

7 from humanity itself. That, in our judgement, is a

8 very high standard indeed.

9 Let me deal then with three points raised in

10 the Prosecution brief on the question of persecution.

11 First, relating to the question whether

12 Mr. Kordic ever personally discriminated. The

13 Prosecution in its brief mentions a comment related by

14 the witness -- a witness that Mr. Kordic had at one

15 point said that -- had uttered the phrase "culturally

16 inferior Muslim culture." And it is this point that I

17 raised the definition in particular about fundamental

18 rights and removing persons from society in which they

19 live and humanity itself.

20 I think, if I were to ask most Europeans

21 whether they thought American culture was culturally

22 inferior to European culture, virtually to a man and a

23 woman, they would say it was. And I submit to Your

24 Honours that this is not the sort of -- has not the

25 sort of gravatus that one needs in terms of evidence of

Page 16655

1 persecutory intent. In addition to that comment, there

2 were two other issues raised in the Prosecution brief.

3 One is that the accused referred in his

4 public remarks to Mujahedin and Muslim extremists. And

5 I would submit to Your Honours that on the record of

6 this case, that constitutes a simple statement of

7 fact.

8 The third point that was raised within this

9 general setting of whether the defendant personally

10 discriminated, is his articulation of a political

11 concern about the development or the danger of an

12 Islamist state in Bosnia. And I mention again that as

13 one is dealing with issues of speech and with issues of

14 political speech and political association, one is in a

15 very delicate area.

16 I simply refer Your Honours to the remarks by

17 a Muslim member of the BiH presidency that were played

18 on a videotape for Your Honours, in which Mr. Durakovic

19 said that he was aware that the presidency of the BiH,

20 the figures there, and he was a member of that, a

21 Muslim member, were only figureheads. That the

22 presidency is not where the real decisions were made,

23 and it was not the real decision centre of power.

24 The real decisions, he said, relevant to

25 military questions, were made independently within a

Page 16656

1 smaller staff headed by the president. And I quote

2 now:

3 "When things became a lot worse, when an

4 almost ethnically pure BiH army was being established,

5 when religion began to be used for political purposes,

6 when they purged the BiH army of so-called

7 inappropriate individuals, people who were not members

8 of the Party of Democratic Action, people who did not

9 use a shalom greeting, and people who did not try to

10 present themselves falsely as new religious people, we

11 sent ..."

12 This is a member of the presidency speaking,

13 a Muslim member.

14 "... we sent that famous letter signed by

15 five members of the presidency in which we expressed

16 our opinions about the politicisation of the army and

17 the instrumentalisation of the religion for political

18 purposes."

19 So again I would simply say that these

20 statements about political concerns for the nature of

21 the way in which the Bosnian government and its state

22 was developing, and as to Mujahedin and Muslim

23 extremists, are not unjustified in political discourse

24 on the basis of this record.

25 Now, the second --

Page 16657

1 JUDGE MAY: Before you come to that point,

2 it's time for an adjournment.

3 The other point may be this. That, of

4 course, one could look at an accused's statements or

5 matters attributed to him to determine whether there is

6 an intent, a persecutory intent, but one can also, it

7 may be said, infer an intent from the actions of an

8 accused, depending on what they are. But we'll return.

9 I would be grateful if you could, Mr. Smith,

10 Mr. Sayers, have in mind the clock. We want to hear

11 the submissions today, if at all possible, and

12 Mr. Cerkez's counsel, and also the Prosecution, must

13 have time to reply by this afternoon.

14 Very well. Half an hour.

15 --- Recess taken at 11.05 a.m.

16 --- On resuming at 11.38 a.m.

17 JUDGE MAY: Yes, Mr. Smith.

18 MR. SMITH: Yes, Your Honour. We have

19 pending, I think, a question about inferences from what

20 the defendant did on the question of discriminatory

21 intent. That is directly to the point. In dealing

22 with persecution and the related issue of instigation,

23 there are really three simple inquiries: What did the

24 accused do; what did the accused say; and did the

25 accused encourage anyone by what he did or said?

Page 16658

1 We have addressed the question of inferences

2 from what the accused did in our brief. And I would

3 point Your Honour to a discussion of a period, 1991 and

4 early 1992, and the story of the political exercises

5 going on in the HDZ-BiH as it led up to the

6 referendum.

7 Secondly, we have discussed what the

8 defendant did in participating in the creation and

9 execution of Bosnian Croat institutions.

10 That part of the brief we have addressed the

11 question of whether there is any de jure discrimination

12 in those institutions, and whether there is any de

13 facto discrimination from the conduct involved during

14 that period with those institutions. We, on de facto,

15 have addressed the meeting of the municipalities on

16 September 22, 1992; the second General Assembly of the

17 HDZ BiH on December 14th; and the alleged ultimatums in

18 the spring of 1993, the winter and spring of 1993.

19 Finally, in terms of the conduct of the

20 accused, we have addressed the question of

21 participation generally in the civil war between the

22 Muslim community and the Croat community. I will not

23 go over those, only simply point you to those parts of

24 the brief, and end this part of -- first part of my

25 discussion of persecution by noting that on -- that

Page 16659

1 deals with the question of what he did as Your Honour

2 has raised, but there is simply no proof there, and

3 there is no proof as to what he said and what he

4 encouraged anyone to do of any evidence of persecution;

5 simply no statements in which he is beating on the

6 table, taking intemperate positions not appropriate in

7 their context, in blaming people. He is calmly

8 considering. If you will read the videotape material

9 that we have quoted in the brief, the excerpt we have

10 placed in the annex, we have tried to place the

11 accused's own words in front of the Trial Chamber so

12 that you may make your own decisions.

13 There is, of course, hearsay evidence, not

14 corroborated, that other things were said. The best

15 example there, I think, is Witness AQ, who when

16 questioned said no. The press conference for which we

17 have the transcript and for which Your Honours know

18 exactly what the accused said, that was the source of

19 her recollections of a rather more embroidered version

20 of what he said.

21 Let me then pass on to the second issue I

22 wish to address concerning matters raised in the

23 Prosecution brief related to persecution, and that is

24 this notion that they advance in relation to the

25 meeting on December 27th in Zagreb with President

Page 16660

1 Tudjman, that there was an expectation arising from

2 that meeting that there would be objections by the

3 Muslim community to the course of action, negotiation

4 for option 3 as a political choice that President

5 Tudjman articulated there.

6 I might first note that we have argued, and I

7 believe in their brief at 62, the Prosecution

8 effectively concedes that whatever you think about the

9 discussion at that 27 December meeting, there were no

10 instructions to use force to accomplish the objectives

11 settled upon. There was, rather, a political decision

12 and direction to negotiate both with the Serbs and with

13 the Muslim community over the question of demarcation,

14 as it is put there.

15 And, of course, there were people who said

16 that the Muslims may object. There was, therefore,

17 from that point of view, an expectation of objection.

18 Any time one goes into a negotiation, one expects the

19 other side may object, but that's what a negotiation is

20 all about. That's what makes a negotiation. You don't

21 pull your punch and not make your point and argue your

22 case in a negotiation simply because there may be an

23 objection. And there were, as the Prosecution

24 concedes, no instructions to use force.

25 Indeed, negotiations were had. The

Page 16661

1 negotiations did not succeed. The Bosnian Croats were

2 then faced with the need for deciding whether to vote

3 for independence with a referendum question that did

4 not resolve, before that vote as they wished, the

5 question of the internal organisation and

6 constitutional structure of the new nation and which

7 did not give them protection, in advance, of the

8 traditional constituent and sovereign rights that they

9 enjoyed as a nation, as that term is used in Yugoslav

10 constitutional law. And what did they do? They did

11 not opt out the way the Serbs did and act by force.

12 They negotiated as hard as they could. They posed the

13 Livno question. They tried to persuade the Muslim

14 community to accept that formulation of the referendum

15 question. They failed again, and they finally decided,

16 when the chips were down, to vote. They did vote, and

17 it is those votes and only those votes that carried the

18 referendum to the level necessary for the independence

19 of BiH.

20 And as for the defendant, he had his

21 political say at that point on various issues. When

22 the decision was made politically, he signed the

23 petition in Busovaca, along with his wife and

24 neighbours, in favour of a sovereign BiH. The

25 referendum then passed, and partition or annexation was

Page 16662

1 a dead letter after that point.

2 Now, the third issue I'd like to deal with is

3 the argument by the Prosecution that the Bosnian Croat

4 institutions constituted monoethnic entities with

5 monoethnic policy, in a way discriminatory against the

6 Muslim community.

7 First point, of course, is these were

8 temporary wartime institutions, not intended to last

9 beyond a transition to peacetime entities. They were

10 legitimate forms of self-organisation for survival and

11 created out of necessity. We've argued that in the

12 brief and I won't go further on it.

13 I think it is most useful simply to recite

14 the conclusions of the Prosecution's own expert

15 witness, who concluded, when asked whether there had

16 been discriminatory legislation by the Bosnian Croat

17 institutions, no, or very few explicitly discriminatory

18 provisions in the HZ HB enactments.

19 I also point to the April 8th, 1992 founding

20 decision on the military HVO, which expressly provided

21 for the protection of all people, not simply the

22 Croats. And Dr. Ribicic conceded this.

23 I mentioned also that citizens were defined

24 under the law being developed and applied in the HZ HB

25 as citizens of Bosnia and Herzegovina, not citizens of

Page 16663

1 Herceg-Bosna, not citizens of Croatia, reflecting again

2 always the intent that these institutions function

3 within the entity BiH, sovereign BiH.

4 And there was a decree on the treatment of

5 foreigners during time of war, in which all citizens of

6 BiH were treated equally. He agreed, Dr. Ribicic did,

7 that any citizen of BiH could be a judge in the court

8 system, and indeed that there likely were judges as

9 there were, who were Muslim.

10 He said that -- he conceded that during the

11 second General Assembly in Mostar on November 14th,

12 Mr. Boban himself said that the HZ HB is the state not

13 only of the Croats who live there but every other

14 people as well, and the question of the plight of the

15 Muslims was raised there, and we quote that material in

16 our brief.

17 Dr. Ribicic also agreed that there was a long

18 list of very specific human rights articulated and

19 enacted by the HR HB at that stage in the evolution and

20 development of the government institutions. That was,

21 in effect, the same list found in the Owen-Stoltenberg

22 Plan, because, of course, the HR HB was intended to

23 implement, as an internal republic, the proposals in

24 that plan.

25 Finally, Dr. Ribicic conceded that the

Page 16664

1 founding decision of the HR HB itself provided that the

2 authority in the republic was derived from the people

3 as a community of free and equal citizens, not solely

4 from the Croat people.

5 Your Honour, it seems to us, and we submit,

6 that while there may have been in the leadership a

7 predominance of Croats in the HZ HB, that to take a

8 situation in which there is an entity with the

9 leadership of a particular political persuasion or

10 racial persuasion or religious persuasion or even,

11 although it's not listed in the Statute, ethnic

12 persuasion, and to argue from that, even though there

13 were other members of other -- members of other groups

14 involved at various levels, either in this case in the

15 military or in the administration -- in our brief, for

16 example, in Busovaca, articulates exactly how many

17 Muslims were in the administration all the way up

18 through December of 1992. To argue that that is a

19 monoethnic entity and is somehow depriving other groups

20 of their rights is, in effect, like arguing that when

21 in the United States the democratic administration

22 takes over, and a lot of the top jobs are then

23 allocated to democrats, or in the UK when one party

24 takes over the parliament and thus takes over the

25 government but other people are still involved at

Page 16665

1 various levels, that those organisations are not

2 monoethnic, and that in the context of temporary

3 wartime conditions, total chaos, people trying to

4 organise themselves to deal with the very basic

5 necessities of safety and security for their families

6 and reaching out, as we have shown in our brief, to the

7 Muslim community, that when negotiations, for example,

8 in Busovaca, in the summer of 1992, after the Kaonik

9 barracks incident in which the Croats were reaching out

10 to the Muslim community in the surrounding

11 municipalities, and the Croats repeated -- they got

12 started, they repeated their invitations, and at some

13 point the Muslim representatives were instructed to

14 cease dealing with the Croats.

15 I would simply suggest to you that in context

16 the actions of these institutions, and of the thousands

17 of people who in good faith entered into them and

18 worked in them, as did the accused, Mr. Kordic, this is

19 not discriminatory or persecutory action. This is

20 self-organisation, defensive action, coping with a very

21 difficult reality, not of their own making. And for

22 the reasons I articulated, de jure, de facto, the way

23 these institutions actually operated, they did a

24 remarkable job, under the circumstances, in trying to

25 deal with the tensions and difficulties between groups,

Page 16666

1 as groups in time of danger tend each to circle the

2 wagon amongst people they know.

3 And I turn the podium back over briefly to my

4 colleague, Mr. Sayers.

5 JUDGE MAY: Mr. Sayers, just going back to

6 Count 1, and your submission in relation to the 24

7 municipalities. What Count 1 refers to, paragraph 36,

8 refers to widespread systematic persecutions of Bosnian

9 Muslim civilians, et cetera, throughout the HZ HB. And

10 you identify -- you say eight municipalities on which

11 there was possibly some evidence, although you question

12 whether there is any evidence, about Fojnica. But

13 given that the count is worded in the way that it is

14 throughout the HZ HB, and in the absence of any -- in

15 the absence of any application to amend the indictment,

16 how would you ask us to proceed, even if we were --

17 even if we thought you were right, there was something

18 in your submission that there was no evidence about the

19 other municipalities. In practical terms, how is that

20 to be done?

21 MR. SAYERS: Well, that's, if I may say, an

22 excellent question. And it's something that puts us in

23 something of a quandary, if I may say so,

24 Mr. President, because, unless the Court declares that

25 there is no evidence with respect to the 24

Page 16667

1 municipalities that have not been the subject of any

2 evidence at all, unless the Court declares that we are

3 not required to put on any evidence with respect to

4 them, the Court can well see that the scope of our case

5 is virtually unbounded.

6 I mean, we've got an allegation here of

7 crimes throughout all of these municipalities, and

8 unless the Court says: Well, we only have evidence as

9 to, for example, nine of them, you don't have to put on

10 evidence with respect to the others, then we are going

11 to have to do that.

12 And I would suggest that that would exactly

13 be an appropriate function of this motion for judgement

14 of acquittal at this stage of the case. For the Court

15 to say, or to use it, if you will, as a tool to tell us

16 what the Trial Chamber sees as genuinely in dispute in

17 this case, and what is not.

18 Because if we can have -- well, I mean, I

19 think the point is obvious. If we have to put on

20 evidence with respect to all of those municipalities,

21 we are looking at a considerable amount of evidence.

22 If we don't, then we can do what we have

23 previously articulated to the Trial Chamber we hoped to

24 do, and put on a streamlined case that's directed to

25 the specific points that the Trial Chamber considers to

Page 16668

1 be genuinely in dispute as having been made out by

2 whatever standard the Trial Chamber considers is

3 applicable on this -- on this motion.

4 Now, with respect to Travnik, we would submit

5 there is no evidence of persecution against Bosnian

6 Muslims by Bosnian Croats, but also no connection that

7 Mr. Kordic has with anything that went on in Travnik.

8 And the witnesses testimony, and the documents in this

9 case establish that, we think, beyond apparent venture

10 of a doubt.

11 The same is true of Kresevo and the same is

12 true of Fojnica. We do concede that the evidence is

13 concentrated upon the six municipalities that I

14 enumerated.

15 And with the Trial Chamber's permission, I

16 would like to turn to those six municipalities, if I

17 may, to identify what we see as being the points that

18 are really in dispute, and those which are not.

19 Let me just use as an example an evocative

20 example -- an evocative subject. The subject of

21 Ahmici.

22 There isn't any question that crimes occurred

23 in Ahmici, and we've never contended that there is any

24 argument that crimes did not occur there. They did.

25 The point is: Did Mr. Kordic have any connection with

Page 16669

1 them? And I'll argue in just a second, if the Court

2 permits me, that there isn't.

3 The same is true, even more so, with respect

4 to the crimes that occurred in Stupni Do, which are

5 gone into at great length in our brief.

6 But just to touch upon a few subjects before

7 I get into those more weighty ones. For example, the

8 allegations regarding Rotilj. The Prosecution has put

9 on some evidence that there were some people killed

10 there. The Prosecution has put on some evidence that

11 there were people interned there. But the Prosecution

12 hasn't put on any evidence that Mr. Kordic had anything

13 to do with those events, even if they could be

14 considered to be crimes.

15 In fact, the testimony of Witness AD, and I

16 think it's pretty much uncontroverted, is that one

17 couldn't even travel from Busovaca to the Kiseljak

18 municipality where Rotilj is located after the ABiH had

19 established hegemony over the main supply route from

20 Kacuni to Bilalovac. And the evidence is absolutely

21 uncontroverted that that occurred on January the 20th.

22 It's in a milinfosum that's recorded on that same day

23 contemporaneously.

24 And every witness has agreed that the ABiH

25 had effectively insulated the Vitez-Busovaca enclave or

Page 16670

1 pocket from the Kiseljak pocket, and there simply is

2 nothing to connect anything that went on in Rotilj with

3 Mr. Kordic.

4 And just one other point of detail on that.

5 The evidence put on from Colonel Morsink establishes

6 that Rotilj was actually defended. In fact, he

7 interviewed the HVO commander who had led the assault,

8 Mirko Redzo, and testified to that at page 8219 of the

9 transcript. He testified that he was told that fire

10 was returned from the village by ABiH units there, one

11 of his soldiers was wounded. And he testified at 8221,

12 he had no reason to doubt Redzo's story. And indeed

13 the civilians that he interviewed in the village

14 thereafter didn't contest Mr. Redzo's story either.

15 So with respect to the allegations regarding

16 Rotilj, there is nothing to connect Mr. Kordic with any

17 of them.

18 And the same is true of another discrete

19 incident which has received quite a bit of attention.

20 Tulica in counts 7 through 13, and 37 through 39. The

21 Trial Chamber will recall from the maps that Tulica is

22 at the southern-most tip of the Kiseljak pocket, and,

23 in fact, right on the front lines with the Bosnian-Serb

24 army.

25 To use the precise phraseology of Section

Page 16671

1 7(3), Your Honours, there is no proof in this case, no

2 evidence at all, that Mr. Kordic knew of the events at

3 Tulica or had reason to know of the events that had

4 occurred there.

5 But more importantly, and we would just rely

6 upon the testimony of Brigadier Winfield Hayes for this

7 particular point, he being the chief of staff of

8 UNPROFOR, having his headquarters in Kiseljak, spending

9 six months there, and that six months encompassed the

10 time of the fighting in Tulica and in the Kiseljak

11 municipality generally, he was asked whether he ever

12 saw Mr. Kordic there, and he said no. He was asked

13 whether Mr. Kordic had any influence in Kiseljak at

14 all, as far as he was aware, and he said no. And he

15 certainly wouldn't go to Mr. Kordic to resolve any

16 short-term or even long-term problem that arose in the

17 municipality of Kiseljak.

18 So in the absence of knowledge of the crimes

19 that had occurred in Tulica or a reason to know, to

20 recite the language of Section 7(3) of the Tribunal

21 Statute, there couldn't be any allegation of superior

22 responsibility in the sense of a failure to punish, I

23 think, under the facts of this case, even if Mr. Kordic

24 had any kind of military power to punish the combatants

25 who engaged in the Tulica operation. And the evidence

Page 16672

1 is absolutely clear that he did not.

2 In fact, the evidence is replete with

3 examples of Colonel Blaskic imposing disciplinary

4 sanctions. The last witness who testified in this case

5 gave an example of that himself, when Colonel Blaskic

6 imposed a five per cent pay penalty upon the 4th

7 battalion of military police for disciplinary

8 infractions generally.

9 And he also gave particular examples of the

10 operation of the military discipline, Your Honours.

11 Two separate disciplinary infractions he had committed

12 which were duly punished by his superior officer, the

13 commander of the 1st company of the 4th battalion of

14 military police, Vladmir Santic. And he testified to

15 that.

16 Now, let me turn to one other discrete

17 municipality, as to which there is, as -- in a familiar

18 pattern, evidence that crimes occurred in Zepce, but no

19 evidence that Mr. Kordic was ever there or had the

20 remotest connection with them.

21 The only crimes, I believe, that are charged

22 in the amended indictment, Your Honours, with respect

23 to Zepce, are counts 21 through 28 that concerns

24 imprisonment and inhuman treatment of persons.

25 But the testimony from Colonel Stutt couldn't

Page 16673

1 be clearer. Mr. Kordic's influence did not extend to

2 Zepce. That was, to use his argot, Ivo Lozancic

3 territory. And his memorandum, right at the --

4 actually, after the indictment period, the memorandum

5 that we showed to him and introduced into evidence as

6 D193/1, the July 13 memorandum, describes Lozancic as a

7 political rival of Mr. Kordic. Quite simply, there is

8 no evidence, let alone beyond a reasonable doubt, no

9 evidence that Mr. Kordic had the slightest influence in

10 Zepce.

11 And the only two witnesses from Zepce who

12 testified, Witness F on June the 10th of last year, and

13 Witness AH on February the 17th of this year, both

14 testified that they never even saw him in Zepce. And

15 didn't try to make the contention that he had any kind

16 of influence, let alone pervasive influence, or that he

17 had uttered any kind of remarks that would have led to

18 the detention crimes that are alleged in Zepce.

19 There is simply no evidence of his ordering,

20 instigating, planning, committing or aiding and

21 abetting, any crimes there, or that anyone who may have

22 committed crimes there was his subordinate, civilian or

23 military.

24 The next subject I would like to address, and

25 it's addressed in full in our brief, and I will just

Page 16674

1 touch on it, is the Zenica shelling incident. That's,

2 I think, charged. It appears to be charged in

3 paragraph 36 of Count 1, because that's the persecution

4 count, and it mentions persecution in Zenica. I am

5 just at a loss to understand what the persecution of

6 Bosnian Muslims might be in Zenica. The evidence is

7 absolutely clear that the Bosnian Croats were basically

8 cleaned out of many villages in Zenica in the April

9 fighting, and that the two brigades, the Jure Francetic

10 Brigade and the Zenica Brigade that were located there

11 before the April fighting were eliminated by the

12 Bosnian Muslim forces in that city. And the city

13 remained for the remainder of the war a Bosnian Muslim

14 stronghold.

15 The second area where the Zenica shelling

16 seems to be raised is counts 3 and 4, which assert

17 unlawful attacks on civilians. But Your Honours, for

18 the same reasons as in Blaskic, where the Trial Chamber

19 acquitted Colonel Blaskic on this count, the

20 Prosecution hasn't come close even to making, at the

21 lowest standard, a prima facie case that it was even

22 the HVO that shelled Zenica. They haven't proved what

23 calibre of shell was used --

24 JUDGE MAY: I think you have gone through all

25 of this.

Page 16675

1 MR. SAYERS: Let me move on.

2 The next discrete or -- location charged is

3 Divjak. And that's charged in --

4 [Trial Chamber confers]

5 JUDGE MAY: I think we've seen your

6 submissions. You say that there's no evidence about

7 Divjak. You've made that submission.

8 MR. SAYERS: Yes. I have nothing particular

9 to add to what we've said in the brief on that subject,

10 Your Honour.

11 JUDGE MAY: Yes. Now, again, you've made

12 your submissions in relation to the connection between

13 Mr. Kordic and Ahmici and Stupni Do, again at some

14 length, and I think we have those.

15 Is there other count that you want to address

16 us on?

17 MR. SAYERS: The submissions that we have

18 relating to the claims of crimes in Busovaca, Counts 3

19 to 4, 7 to 13, and 37 to 39, we simply want to draw the

20 Trial Chamber's attention to the specificity of the

21 time periods of the crimes alleged in those counts.

22 It's January 1993, and I believe some of the counts may

23 spill over into February of 1993.

24 Presumably this is referring to the outbreak

25 of fighting that occurred in Busovaca. I don't wish to

Page 16676

1 repeat everything that we've said in our brief, it's

2 said in black and white, but I do wish to emphasise

3 this point to the Court: The fighting began after the

4 ABiH had actually taken the initiative, through its

5 333rd Mountain Brigade in Kacuni, to block the main

6 supply route and cut off the means of communication

7 between Kiseljak and Busovaca. There's no question

8 that that occurred.

9 In fact, if the Court refers to the January

10 the 20th milinfosum contemporaneously generated by the

11 1st Battalion of the Cheshire Regiment, D53/1, you can

12 see that the reason that that roadblock or that that

13 demarche, that military initiative was undertaken was

14 to prevent reinforcements arriving in Busovaca from

15 points south. That's precisely what the milinfosum

16 says. Prior to that there had been no roadblocks, no

17 particular incidents of tension between the

18 communities, and there's no question that there was an

19 outbreak of fighting on the 25th of January of 1993.

20 But I do want to -- draw the Court's

21 attention to this: The testimony of Major Jennings and

22 the milinfosums that concern that particular date, such

23 as, for example, D105/1, which is the January the 25th

24 milinfosum, and it records that there are large numbers

25 of Croat houses burning in Kacuni.

Page 16677

1 We say this not for any tu quoque argument.

2 There is no justification because someone else is

3 committing crimes to commit crimes. We've never taken

4 that position in this case, and we don't take it now,

5 but it is relevant contextually to determination of

6 whether, in fact, crimes occurred in Busovaca in

7 January of 1993, because it was the ABiH that actually

8 initiated the military campaign there by blocking off

9 the road, establishing military hegemony over that

10 road, and by actually cleaning out the Croat population

11 from the adjoining villages around Kacuni, such as

12 Gusti Grab and Oseliste, all of which has been the

13 subject of fairly extensive testimony.

14 We would also point out, once again not for

15 any tu quoque argument but certainly relevant

16 contextually, the evidence is absolutely uncontroverted

17 regarding the Bosnian Muslim massacres in Dusina,

18 Lasva, and Witness Z's testimony established that

19 rather eloquently and fully, and there's no controversy

20 of that.

21 So there was a lot of fighting going on in

22 Busovaca, there were lot of Bosnian Croats being killed

23 in Busovaca, and I don't believe that there's proof of

24 crimes going on in Busovaca, number one; number two,

25 there is no connection between Mr. Kordic and the

Page 16678

1 crimes that occurred in Busovaca. And there is

2 certainly no proof of any military capacity on the part

3 Mr. Kordic. And I'd just like to return, for an

4 instant, to the testimony of Lieutenant Colonel

5 Stewart, to the effect that in his opinion, based on a

6 meeting in Busovaca that he had with Mr. Kordic on

7 February the 3rd, he concluded, even though he never

8 testified to this in the Blaskic case, that Mr. Kordic

9 was the military commander in Busovaca.

10 He was forced to concede on cross-examination

11 that he couldn't identify a single person to whom he

12 communicated that belief, and he said that. He didn't

13 put that impression down in his contemporaneous diary

14 anywhere. He didn't relate that impression in his book

15 that was written one year later.

16 But equally significant, and perhaps even

17 more significant, Your Honours, is this: The military

18 intelligence cell absolutely sets out the chain of

19 command. It nowhere identifies Mr. Kordic as a

20 military commander in Busovaca or as anything other

21 than a politician associated with the HDZ and as a

22 vice-president of the HZ HB, even though he was

23 obviously a vice-president of the presidency of the

24 HZ HB, but the milinfosums make in contention that

25 Mr. Kordic is a military commander in Busovaca. In

Page 16679

1 fact, they do quite the reverse. They identify the

2 overall commander in Central Bosnia as

3 Colonel Blaskic. They identify, at least until the end

4 of January of 1993, which is significant for purposes

5 of this count, the military commander as Niko

6 Jozinovic, the commander of the Nikola Subic-Zrinjski

7 Brigade, which was the Busovaca Brigade, and they also

8 chronicle the change-over in command from Jozinovic to

9 Commander Grubesic, who is recorded in the February the

10 11th milinfosum being the new commander in Busovaca.

11 So at the very time the fighting broke out,

12 the military command of the Zrinjski Brigade in

13 Busovaca was in a state of flux, and the only evidence

14 that you have of Mr. Kordic as being a military

15 commander comes from the opinion of Colonel Stewart.

16 But I would point out that one of the

17 subordinate officers serving under Lieutenant Colonel

18 Stewart was Major Jennings. He was one of the three

19 people in this case, Your Honours, and I really would

20 like to emphasise this, one of the three people who

21 actually asked the question of Mr. Kordic, "Do you have

22 military authority?" And the answer was, "No." And he

23 testified to that at page 8995 of the transcript.

24 The only other people who actually took the

25 pains to ask particular questions about the military

Page 16680

1 chain of command were, as we've pointed out in our

2 brief, Captain Jean-Marc Lanthier, who is a transcript

3 witness. He found out that Mario Bradara was the

4 second in command of Ivica Rajic and the second

5 Operative Group in Kiseljak serving under

6 Colonel Blaskic, and he confirmed that both with

7 Bradara and Blaskic.

8 The second witness was then Captain Lee

9 Whitworth, who had some questions in his mind about the

10 chain of command within the military police, and he

11 decided to tackle the confusion on the issue by asking

12 specific questions, and he did. He asked questions of

13 Vladimir Santic and of Pasko Ljubicic and established

14 indeed that the military police, including all

15 sub-units like the Jokers, for example, which was the

16 subject that sparked his initial inquisitiveness, were

17 under the command of the 1st Company under Vlado

18 Santic, and the 4th Battalion of the military police,

19 which had, as one of its components, the 1st Company,

20 was under the overall command of Pasko Ljubicic, who in

21 turn recorded to Colonel Blaskic, and we would submit

22 that the evidence is uncontroverted once again.

23 With respect to the chain of command issues

24 in Busovaca, since that appears to be the most narrow

25 point of evidence upon which the Prosecution has tried

Page 16681

1 to concentrate in order to infer some sort of a

2 military role on Mr. Kordic's behalf, let me just refer

3 the Trial Chamber to milinfosum exhibits which

4 articulate the military information cell's evaluation

5 of the chain of command in the Operative Zone and in

6 Busovaca. D102/1, which is December January 15th;

7 Z423, which is January the 30th; D61/1, February the

8 2nd; D108/1, which is February the 4th, where Commander

9 Jozinovic has been ordered to transfer to Zepca under

10 Lozancic; and D109/1, which is the February the 11th

11 milinfosum I earlier adverted to, which reports that

12 Dusko Grubesic is the new commander.

13 We would respectfully submit that there is no

14 evidence that connects Dario Kordic to crimes committed

15 in Busovaca. The closest that the Prosecution has come

16 to trying to infer such a connection, we believe, is

17 well known to the Trial Chamber. They've tried to

18 suggest that there's some --

19 JUDGE MAY: I think, Mr. Sayers, you have

20 argued this extensively, and I'm sure we have the

21 points.

22 MR. SAYERS: All right.

23 JUDGE MAY: Just one thing you can help us

24 on. It's this: If we came to the conclusion, again

25 it's a mere hypothesis, but suppose we came to the

Page 16682

1 conclusion, for instance, on Counts 37 to 39, that

2 there was no evidence on a particular location, are you

3 inviting us to rule that there is no evidence on that

4 particular location and effectively withdraw it from

5 the indictment? Can we do that?

6 MR. SAYERS: Well, that's a tricky question,

7 if I may, Mr. President, because you'll notice that the

8 indictment is pleaded not in the alternative but in the

9 conjunctive. There are a number of paragraphs, and the

10 last -- which articulate what the elements of the crime

11 are or what the particular charges are, and they

12 conclude, in the enumerated paragraphs, with "and." So

13 I think the Trial Chamber could legitimately conclude

14 if there is a failure of proof on any of the areas that

15 are alleged to have been -- in which crimes were

16 alleged to have committed, then the entire count could

17 be dismissed.

18 But we're in the Trial Chamber's hands with

19 respect to, that, and I think that that's a perfectly

20 legitimate argument. It's the Prosecution that chose

21 to plead Count 1 that way. They've pleaded it

22 collectively rather than in the alternative, and the

23 argument would be that if they had failed to prove 1,

24 that the crimes were committed in one of the areas

25 where they contend that it has been -- that crimes were

Page 16683

1 committed, then the entire count should fall. But if

2 the Trial Chamber believes that the better course is to

3 hold that there is no evidence on 24 of the

4 municipalities, then obviously we're in the Trial

5 Chamber's hands, and it would greatly expedite the

6 trial in this case if we didn't have to bring evidence

7 relating to those other municipalities before the

8 Court.

9 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,

10 there's something I would like you to tell me and which

11 might be of some help.

12 You've just said that these villages which

13 are found in the counts or, rather, that such-and-such

14 a count are relative to such-and-such a locality, and

15 you say that they are not presented in the alternative

16 but they are presented collectively. It is the whole

17 of the villages which are incorporated in such-and-such

18 a count. And of course, if you say that there is no

19 possibility to prove one element of the count, it is

20 the count in its whole which has to be dismissed, but

21 equally you can say that for a number of villages,

22 there is no evidence at all and that would allow us to

23 focus on the rest of the villages and the rest of the

24 crimes, and this would greatly expedite the

25 proceedings.

Page 16684

1 But I don't like this idea of expediting

2 matters in the judicial environment. We are dealing

3 with ambiguous questions here, and we are not trying to

4 be as productive as possible. We want to be as certain

5 of what we do as possible. We want to go step-by-step,

6 because the question here is to give a well-founded

7 decision. Time is not to be taken into account. It is

8 the waste of time which has to be taken into account

9 and to be avoided.

10 This is my question: Do you need for the

11 Chamber to give you a decision on that particular

12 matter? Because in the hypothesis that you do have to

13 carry on with the case and submit to us some evidence,

14 you can very easily say you don't have anything to add

15 on that particular locality because from your point of

16 view, there is no evidence that has been put forward by

17 the Prosecution.

18 And that would be it. You are not going to

19 destroy evidence that does not exist in a sense. You

20 have to deal with what has been put on the table, so to

21 speak.

22 It's only if you want to play Don Quixote

23 that you have to deal with things that do not exist.

24 So this is the question I put to you: Do you

25 really have to see us, the Judges of this Trial

Page 16685

1 Chamber, make a decision, establish a distinction

2 between this locality and the other locality?

3 MR. SAYERS: Well, that's a very interesting

4 twist, Your Honour. And if we were involved in a

5 literary exercise, I would say that we shouldn't

6 involve our efforts in tilting at illusory windmills,

7 like Don Quixote. Absolutely. But it would be a

8 considerable risk for any attorney, in a trial such as

9 this to say: Well, we consider there is no evidence on

10 this particular counts, so we are not going to

11 introduce any. Only to have the Trial Chamber later

12 say: Well, we consider that the entire count has been

13 proven.

14 It seems to us that it's the -- if I may

15 respectfully suggest, it's the Trial Chamber's duty to

16 analyse the amended indictment and see whether indeed

17 there is any evidence on the particular claims that

18 have been made, and then to adjudge whether that

19 evidence satisfies whatever standard the Trial Chamber

20 believes to be appropriate.

21 But if there is no evidence on a particular

22 municipality, there is simply no way that we should be

23 required to respond and come forward with our own

24 evidence as to events in that municipality or, failing

25 doing that, run the risk -- run the legal risk that we

Page 16686

1 might have in rebuttal or something like that, evidence

2 come in to corroborate the claims that are made in the

3 amended indictment. We don't want to do that.

4 As Mr. Smith has said, the Prosecution has

5 presumed -- have taken its best shot.

6 As he also said, this is as good as the

7 Prosecution's case gets. And if there is no evidence

8 -- I'm sorry.

9 JUDGE ROBINSON: Mr. Sayers, I am not sure I

10 understand why you say Counts 37 to 39 pleaded in --

11 pleaded collectively.

12 MR. SAYERS: I was incorrect. If that's the

13 way that the Court interpreted my -- what I said, that

14 is not correct. Count 1 is pleaded collectively.

15 Count 1, yes.

16 If you take a look at the subparagraphs, that

17 the connector between the penultimate and the ultimate

18 paragraph is "and," not "and/or."

19 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,

20 Article 98 bis of the Rules -- Rule 98 bis, do you

21 think it grants the Trial Chamber this particular power

22 you were mentioning, because Rule 98 bis says that:

23 "If, after the close of the case of the

24 Prosecution, the Trial Chamber finds that the evidence

25 is insufficient to sustain a conviction on one or more

Page 16687

1 offences charged in the indictment, the Trial Chamber

2 shall order the judgement of acquittal."

3 But that is only what is said, "the Trial

4 Chamber shall order the entry of judgement of

5 acquittal." It says nothing more than that. It

6 doesn't speak of a decision that the Trial Chamber

7 would be empowered to make.

8 And the Rule further reads:

9 "The Trial Chamber on motion of an accused or

10 proprio motu shall order the entry of judgement of

11 acquittal."

12 In French, the wording is quite different

13 from what is said in English. It's quite different.

14 It says it concludes from the basis of what has been

15 submitted to it. In English it is to sustain. One

16 could quarrel about the wording, but the idea is that

17 indeed the evidence is insufficient to sustain a

18 conviction.

19 But we cannot go into, you know, this

20 category of the evidence and then this category of the

21 evidence. We have to have a general look at the

22 situation and then make a decision.

23 Do you think what you are asking for falls

24 within the framework of the Rule?

25 MR. SAYERS: Well, that's exactly why I made

Page 16688

1 the -- that it's the Prosecution that has chosen to

2 plead Count 1 in the way that it has.

3 Let me just return to paragraph 36, which

4 says that crimes are alleged to have occurred

5 throughout the HZ HB/HR HB, and the municipality of

6 Zenica in the territory of Bosnia-Herzegovina.

7 We would submit to the Court that if the

8 Court concludes that the Prosecution has failed to

9 prove, for example, that crimes occurred in Kotor

10 Varos, then the entire count should be dismissed. And

11 they haven't proved that any crimes occurred in Kotor

12 Varos, or any of the other 24 municipalities that are

13 mentioned in the amended indictment, other than the

14 nine, of course, as to which I've conceded that there

15 has been evidence put on. And there has been some

16 evidence put on of crimes in six municipalities, no

17 evidence of crimes occurred in two others. And in

18 Kresevo, no evidence that Mr. Kordic had any connection

19 at all with anything that went on there.

20 But the --

21 JUDGE MAY: It's the words "throughout" on

22 which you rely.

23 MR. SAYERS: Exactly.

24 JUDGE MAY: To take that to an extreme

25 conclusion, they would have to prove the crimes

Page 16689

1 committed in every village or every hamlet, and that

2 can't be what it meant.

3 An alternative view would be that they simply

4 had to prove that crimes were committed somewhere.

5 MR. SAYERS: Well, once again, Your Honour,

6 in a criminal trial, narrow construction rules are

7 applicable. And we didn't plead this amended

8 indictment, the Prosecution did. I also stress, it's

9 amended. And here we are, at the end of the -- or way

10 beyond the end of the Prosecution's case, that the

11 indictment says what it says. And I think the

12 Prosecution has failed to prove that there were any

13 persecution crimes in 24 of the -- or in at least -- in

14 any of the municipalities. But they failed to prove

15 that there were any crimes at all of any nature in 24

16 of the municipalities.

17 And they have to prove that these crimes

18 occurred throughout the HZ HB and the HR HB and in the

19 municipality of Zenica. Where is the evidence that

20 there were any crimes in the municipality of Zenica?

21 JUDGE MAY: Well, it may be they rely on the

22 shelling there. But is there anything you want to add,

23 Mr. Sayers? I am looking at the clock now.

24 MR. SAYERS: Yes, Your Honour, I am mindful

25 of that.

Page 16690

1 Let me just hit two points in conclusion.

2 And they are on the concept of command responsibility

3 under Section 7(3). What is it that the Prosecution

4 theorises that Mr. Kordic did or did not do in

5 connection with the two principle events at issue in

6 the amended indictment; first, Ahmici; second, Stupni

7 Do.

8 The Prosecution in this case has proved in

9 their own case, unlike in the Blaskic case where it was

10 up to the Defence to do it, but the Prosecution in this

11 case has proved that the HVO did initiate an

12 investigation. They may quibble with the effectiveness

13 of that investigation, and there is a lot to be

14 quibbled with. But the problem is, and it was

15 articulated in two of the confidential exhibits, and

16 we've articulated the problem in our papers, and I

17 won't go into any detail on that, so we can avoid going

18 into private session.

19 It would be extremely difficult to identify

20 eyewitnesses or interview eyewitnesses in the process

21 of accumulating a criminal indictment against the

22 persons who were responsible for Ahmici and who should

23 have been prosecuted. How could you possibly prosecute

24 them and establish proof beyond a reasonable doubt,

25 without even the ability to interview the eyewitnesses

Page 16691

1 to the event, who were in Zenica? That's a real

2 problem.

3 But the point is that an investigation was

4 initiated, and there may be some criticisms of the

5 extent to which that investigation occurred, but it was

6 initiated within the context of the military discipline

7 system. It was initiated by Colonel Blaskic, who

8 issued directions to the SIS, which required a report

9 by a certain date and that report was returned. And

10 then there was another order issued by Colonel Blaskic

11 on August the 17th, 1993, directing the SIS to develop

12 the investigation further.

13 That's exactly what the concept of command

14 responsibility, even if Mr. Kordic could be said to be

15 in the military chain of command, or the army is

16 somehow considered to be his subordinate, that's

17 exactly what the theory is that he should have done.

18 He should have done an investigation; he should have

19 punished those who were -- who were responsible for the

20 crimes in Ahmici. But you can't punish until you can

21 identify the people who were responsible.

22 Now, four suspects were known. But as we

23 know, although the evidence is sort of in a flip-flop

24 state on that, the names of the four suspects were not

25 turned over to the HVO. No assistance was given to

Page 16692

1 identify the people who allegedly were responsible.

2 And those four names were developed as a result of

3 extensive investigations, interviews with eyewitnesses

4 in Zenica, as we know from the testimony of Witness AB.

5 But standing back, there is a lot to be

6 criticised in Ahmici, the stories about Serbs being

7 responsible for the crimes, or Muslims dressed up as

8 HOS, or HOS themselves. That was the conventional

9 wisdom that was parroted by the military authorities as

10 an excuse, no doubt, for what happened there.

11 And those mistakes were not repeated, Your

12 Honour -- I will only be about five minutes -- they

13 were not repeated with respect to the second incident,

14 Stupni Do.

15 There is no evidence to connect Mr. Kordic

16 with Stupni Do. And I would point out that with

17 respect to the only evidence upon which the Prosecution

18 relies in that regard, the heavily impeached Witness

19 AO, we've received yet more materials from Witness AO,

20 from the Prosecution's files. It turns out that they

21 did have a videotape of his interview in November of

22 1993, by NordBat, that's just been disclosed to us

23 after the briefs have been filed.

24 And also a number of statements which record

25 Witness AO making death threats against Muslims and

Page 16693

1 transporting Muslims from one military prison, HVO

2 military prison, to another, and obstructing UN access

3 to Stupni Do wearing a black uniform.

4 I am not going to spend any more time on

5 Witness AO. He's a man who is much impeached. No

6 reasonable Trial Chamber could place any reliance upon

7 the testimony of that witness. Let's take a look at

8 what happened after Stupni Do became known.

9 Mr. Kordic contacted the commander in chief,

10 or the chief of staff of the HVO, at that time General

11 Petkovic, to find out what had happened. Sir Martin

12 Garrod, Colonel Stutt both said a perfectly reasonable

13 thing to do, to call up the military figure to find out

14 what had happened in a military operation.

15 Now, what happened after that? The military,

16 at the direction of the president of the HR HB,

17 President Boban, and that's absolutely clear from

18 contemporaneous ECMM documents and from the testimony

19 of Sir Martin Garrod, and Colonel Stutt for that

20 matter. President Boban directed General Petkovic to

21 remove the military commanders. And he did. The

22 commander of the Bobovac Brigade, Emil Harah, who was

23 still the commander after Stupni Do, and who obstructed

24 the access of ECMM and UN units to Stupni Do, it's on

25 his orders that their access was obstructed on the

Page 16694

1 23rd, was replaced on the 24th by Kresimir Bozic.

2 The commander who was allegedly in charge of

3 the entire operations was removed from his

4 responsibilities, Ivica Rajic, by General Petkovic's

5 order, and upon order of the President of the Republic,

6 President Boban.

7 Sir Martin Garrod confirmed he had spoken

8 both with President Boban and the Prime Minister of the

9 HR HB, Dr. Prlic, and they had both confirmed to him

10 that instructions had been given to remove Rajic

11 from -- and other military commanders from positions

12 of command.

13 Similarly, a war crimes commission was

14 established on the 28th, we've established that. The

15 evidence is in the record. And an investigation was

16 commissioned, investigators were sent to UNPROFOR to

17 Lieutenant-Colonel Koet, and Colonel Stutt testified

18 that he was aware that the HVO had initiated an

19 investigation.

20 Taking a look at all of that, Your Honours,

21 with Mr. Kordic firmly established, as he is, as a

22 political leader, what more could he have done or

23 should he have done than was done in that

24 circumstance? The civilian leaders were removed, Anto

25 Pejcinovic, and the civilian police commander, Ivica

Page 16695

1 Gavran, on the 23rd, by General Petkovic. That order

2 is in evidence; Z1258, I believe.

3 The commander of military police, Zvonko

4 Dusnovic was removed on the 23rd. The brigade

5 commander was removed from his position of command, and

6 the overall commander was removed from his position of

7 command, and an investigation was started.

8 Once again, though, remember this, on

9 November the 2nd of 1993, Vares fell to the ABiH

10 forces, and there was no possibility that the HVO

11 investigators could, without the assistance of the

12 ABiH, interview eyewitnesses who were present at Stupni

13 Do.

14 And in the absence of an ability to interview

15 eyewitnesses, the Trial Chamber might legitimately ask

16 itself: How in the world is a case of guilt beyond a

17 reasonable doubt to be established beyond the

18 perpetrator -- as to the perpetrators of the crimes in

19 Stupni Do?

20 And so I am just -- I don't think that

21 there -- the evidence establishes that there is

22 anything more that could have reasonably been done

23 under the circumstances. But the point is that

24 disciplinary measures were immediately taken and the

25 mistakes of Ahmici were not repeated. The HVO

Page 16696

1 immediately took responsibility for what had happened

2 in Stupni Do, and instituted immediate measures to

3 impose preliminary sanctions against the persons

4 believed to be responsible.

5 So as to Stupni Do, I think that that's the

6 synopsis of the evidence. And in the Stupni Do

7 discussion that we put in our brief, the last few

8 witnesses who testified, or amongst them, were Sir

9 Martin Garrod, Colonel Stutt, Witness AD, and other

10 military or quasi-military figures, all of whom

11 testified that they never asked Mr. Kordic if he had

12 any kind of role in the military chain of command, if

13 he had any capacity to discipline or any right to

14 discipline.

15 And we submit to the Court that the evidence

16 is absolutely clear from the documents that he had no

17 right to intrude into the military discipline system.

18 There is not a single instance proved of where he did

19 so. There is not a single order. Not one order that

20 he signed imposing military discipline or giving

21 military orders after the initial period of confusion

22 had subsided to military units.

23 Now, consider the profusion of orders issued

24 by the actual military commanders in that regard. And

25 my final point is they simply did not ask Mr. Kordic,

Page 16697

1 and the evidence is clear that they didn't ask him, and

2 they admitted they didn't ask him, what his position

3 was. And the result was they couldn't tell what his

4 position was. And they admitted that too.

5 So he is not within the chain of command, he

6 is not a superior in the context of Section 7(3), and

7 he can't be held derivatively liable for the crimes

8 that occurred in, for example, Ahmici and Stupni Do

9 under the authority of Section 7(3). And we rely upon

10 our brief and the other arguments presented by

11 Mr. Smith.

12 And that concludes my presentation, unless

13 the Court has any other questions.

14 JUDGE MAY: Thank you. Mr. Kovacic, we've

15 got your brief. We've read that. So there is no need

16 to go over it again. We have, of course, the

17 Prosecution response. We'll hear any submissions you

18 have in relation to the response. It would be helpful

19 if you again would concentrate on pointing out any

20 counts on which you say there is no evidence, or no

21 sufficient evidence.

22 MR. KOVACIC: [Interpretation] Thank you,

23 Mr. President. This is -- was exactly my intention. I

24 will avoid any repetition.

25 With that purpose in mind, I would first like

Page 16698

1 to say that I still stand by what I have said in all

2 the arguments that we have presented in our brief.

3 Since my colleagues of the Kordic Defence

4 have addressed certain legal issues, as regards both

5 the law and the procedure, I would like to second their

6 views, which has also been presented in my written

7 brief in order to economise the time.

8 And I would like to just point out certain

9 legal aspects which was touched upon by the Kordic

10 Defence in my summary comments, which, overall, will

11 not take more than 20 minutes.

12 Also, very briefly, and just skimming the

13 surface, I will address the Prosecution's response.

14 And this was a joint response to the briefs of both the

15 Defence counsel and, obviously, I will only limit

16 myself to the points raised in reference to the Cerkez

17 case. However, I have to point out that, regrettably,

18 we only received this response last night.

19 I was able, however, to review it, and it may

20 just be that it is not fully systematic.

21 But let us go to the heart of the matter.

22 Let me point out that the central issue in this

23 proceeding is the individual responsibility. It seems

24 to me that from the very start, when the indictment was

25 issued, we have engaged perhaps too much in the general

Page 16699

1 picture of the events and, conditionally speaking, the

2 guilt, in quotation marks, of the HZ HB, or its

3 executive branch, HVO, or even perhaps more

4 specifically the military wing of the HVO. I believe

5 that the Trial Chamber is not putting the HZ HB or the

6 HR HB on trial here, neither the HVO or its military

7 wing.

8 The Trial Chamber will decide on whether my

9 client has played the role which the Prosecutor claims

10 he did play. And just to place this all in the

11 appropriate context, no brigade commander from the HVO

12 has been indicted by this Tribunal, at least not in the

13 public indictments. And if one is to believe the local

14 media, there are no sealed indictments either on any of

15 the brigade commanders.

16 Now, why is Mr. Cerkez here accused? You

17 know that each municipality had a brigade. Each

18 municipality in Bosnia tried to continue with its way

19 of life, and perhaps even believed that the war which

20 was waging over there would not spread out locally.

21 Why has Cerkez been accused? The answer is

22 only because in the territory of Vitez municipality,

23 that is, three to four kilometres from the centre of

24 town, the crime in Ahmici took place. It is clear that

25 this crime did take place. We never questioned that.

Page 16700

1 But when we go back to the individual responsibility,

2 the question is simply: Was my client and his unit,

3 were they actually in this unfortunate village?

4 I believe that everything else is more or

5 less decoration, used to support this, and so we

6 believe that everything else has been charged to my

7 client in support of this crime, and I believe that

8 you, as experienced Judges, know this fully well.

9 We have always held the position, and we

10 continue to hold the position that Cerkez's unit was

11 never in the field. Perhaps the only critical point

12 which is worth discussion is an assertion by a number

13 of witnesses from Ahmici, the victims. In brief, they

14 said that they recognised three groups of soldiers who

15 were in Ahmici. They spoke about uniforms and badges

16 of the military police, then the special purpose unit

17 called Jokeri or Jokers. Some mentioned uniforms which

18 supposedly referred to Vitezovi, and for the rest, they

19 said HVO soldiers in camouflage uniforms. That is not

20 sufficient proof.

21 As we saw from the presented evidence, there

22 were a lot of HVO soldiers in camouflage uniforms. As

23 a rule, municipal brigades wore such uniforms,

24 including my client's brigade, but also the units which

25 also had special badges such as white belts or black

Page 16701

1 uniforms or additional patches and so on.

2 Our position is that the proof is not

3 conclusive, and there is no equations there. A

4 camouflage uniform and an HVO patch does not give an

5 answer as to the membership of the brigade, and no

6 evidence led here has brought that into doubt

7 substantially.

8 This morning, comments were made on this next

9 issue, and I would just like to address it very

10 briefly. It concerns the standard that the Trial

11 Chamber should employ in their decision.

12 I also believe that the only standard that

13 the Trial Chamber should employ pursuant to both the

14 Rules of Procedure and Evidence and wider legal

15 principle is the level of beyond reasonable doubt.

16 I would just like to remind that the

17 procedure before this Trial Chamber, as conceived by

18 the Rules, is initiated with a prima facie criteria,

19 and there is no other instrument which controls the

20 proceedings. However, unfortunately, the Rules have

21 been written in such a way that a proceeding can be

22 started against a person and a person can be submitted

23 to this long and dramatic process only to arrive, in

24 the end, that perhaps they were not guilty.

25 I don't know whether the standard of prima

Page 16702

1 facie is too low or there is another instrument

2 missing. I'm not certain. But I believe that the

3 standard of prima facie needs to rise steadily

4 throughout the process, and eventually it has to reach

5 the standard of above reasonable doubt, as was

6 mentioned this morning. In this way, I also concur

7 with the view of the Defence counsel for Kordic, that

8 this is the only standard that needs to be applied when

9 applying Rule 98 bis. The language there, when we try

10 to interpret it, can only point to this standard and no

11 other standard.

12 Of course, wherever there is doubt that this

13 standard was satisfied, the conclusion should be in

14 dubio pro reo, in civil law, and there is an equivalent

15 expression in the common law practice, but,

16 unfortunately, I cannot come up with right now. In

17 other words, it should be ruled in favour of the

18 accused. These are the two extremes, whether -- in

19 other words, either the standard of beyond a reasonable

20 doubt or the accused should be released.

21 I say that there is too much doubt in this

22 case, and so only the principle of in dubio should be

23 applied to my client. And even if the Defence should

24 choose not to present its case, and it is the right of

25 the Defence to present its case, I believe that the

Page 16703

1 Trial Chamber would still rule in favour of my client.

2 In our defence case, we'll have to address

3 Carry Spork, the investigator of the Tribunal, and we

4 will show that the arguments that he presented were

5 insufficient for conviction, and I feel that we will

6 have to deal with that in the future.

7 So we invite the Trial Chamber to apply the

8 Rule 98 bis, and in the alternative, so we invite the

9 Trial Chamber to apply its authority so that in at

10 least point 2 of the indictment, the persecution, it

11 rejects the indictment as far as the location and time

12 as stipulated in this charge. This would be the

13 location Busovaca-Novi Travnik, and the time 1992, and

14 I believe that the rest is set out in my brief.

15 Now, why do I bring this up? The time and

16 location of the perpetration of this crime, in any

17 legal system, is a crucial element of the indictment.

18 It is not an element which can be changed or omitted

19 during the proceeding.

20 The Prosecutor sets out the charge. He or

21 she says that a certain crime was committed at a

22 certain time, at a certain place. The accused would

23 not be able to offer a defence if there is no specific

24 time and location mentioned in the indictment.

25 My client, in point 2 of the indictment, has

Page 16704

1 been charged in a very wide area and time. Given the

2 complexity of the conflict which went on from

3 April 1993 until early 1994, this period is filled with

4 events.

5 My client has been charged for events outside

6 of his jurisdiction, which is Vitez, and there were --

7 no evidence was led to prove that my client had

8 anything to do pursuant to 7(1) or 7(3), to have

9 anything to do with events in those locations.

10 As far as the time period relating to the

11 charge 2, that is April 1992 and going to September

12 1992, it should be broken down, and we all saw this in

13 the courtroom throughout these proceedings.

14 The date of 16 April is a crucial one, when

15 all the events in Central Bosnia assumed a different

16 aspect. I have argued, and I'm not going to repeat

17 myself, but I believe that no evidence was presented

18 that throughout 1992 and up to middle of April 1993, in

19 the territory of Vitez municipality, there was any

20 systematic or planned persecution of the Muslim

21 population, because the facts demonstrate that in the

22 situation when the state structure ceased to exist and

23 both ethnic groups who live in this area, and for all

24 practical purposes only two ethnic groups lived there,

25 and the third ethnic group, the Serbs, have a very

Page 16705

1 minor role here, were engaged in survival. We heard

2 from the Kordic defence that they employed different

3 ways of doing so, but they tried to survive and the

4 state ceased to exist. In terms of education and roads

5 and money, this is the fact which we cannot get

6 around.

7 In this situation, everybody was looking for

8 a way out, and as a result, we have chaos. We have a

9 widespread common crime which causes a number of

10 incidents. This common crime has different motives.

11 Some of them are classic of greed and material gain,

12 but some also rise to nationalism. And the groups who

13 were victims were not just members of one ethnic group,

14 not just Bosnian Muslims, everybody was a victim of

15 this. There was no systematic and planned

16 persecution. The picture obviously changes when the

17 open conflict broke out.

18 If we have to set up a defence on this point,

19 then for judicial economy and in order to focus on what

20 is important, I think we need to focus on only April

21 1993.

22 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic,

23 sorry for interrupting, but you are saying something we

24 have heard a number of times this morning, that there

25 was chaos, everybody was a victim. You say everybody

Page 16706

1 was a victim, not only the Muslims, everybody was a

2 victim. But when you say "everybody was a victim," it

3 means that there were people who were victims, and there

4 were people who were guilty of committing certain

5 crimes against these victims.

6 You speak of chaos. You say that it was not

7 only the Muslims who were persecuted, but that does not

8 justify what has been done and what has happened. The

9 theory of chaos that has been put forward in this

10 particular case since the very beginning of our

11 debates, and the fact of saying that there were other

12 victims does in no way justify that crimes were

13 committed against a particular individual, and it does

14 not in any way help the situation of the accused with

15 which we are dealing with here.

16 MR. KOVACIC: [Interpretation] Of course, Your

17 Honour, I agree with this, which is why I proposed that

18 the Trial Chamber rule that there were no crimes of

19 persecution until Ahmici.

20 Regardless of any other charges in this

21 indictment, had the Ahmici not happened, I am convinced

22 that my client would not be sitting here in the dock,

23 and this is why I say that the chaos which ensued, and

24 what you said, and if we add the subjective aspect of a

25 crime, that there was no discriminatory intention in

Page 16707

1 1992, the motivation for pillage or murder, either of

2 Muslims or not, were a common crime. It could have

3 been love, vengeance. Perhaps we can add nationalist

4 fervour, yes, in certain incidents, but it is not the

5 general principle. There was no systematic

6 persecution. There was no plan to persecute the

7 Muslims, or Croats, for that matter.

8 This is my theory, and I believe that it is

9 supported by all the evidence that's been led in this

10 case. We can talk about the black and white division

11 after April 1993, when everybody chose sides along the

12 nationalist lines, but that only happened after April

13 1993.

14 So I'm just trying to evoke the context of

15 this, because this is not -- this was not happening in

16 the plastic sleeve, this was happening in real life.

17 Again, I would like to go back to another

18 argument which was discussed earlier. We believe that

19 per 98 bis --

20 JUDGE MAY: It's now five past one. Are you

21 going to finish in five minutes, Mr. Kovacic, or do you

22 want to go on after the adjournment? Very well.

23 MR. KOVACIC: [Interpretation] I'm afraid not,

24 Your Honour. I don't have that much longer, perhaps

25 five to ten minutes, but then I would like to address

Page 16708

1 also the Prosecutor's brief and respond to it.

2 JUDGE MAY: Very well. We'll adjourn now for

3 an hour and a half.

4 --- Luncheon recess taken at 1.05 p.m.






















Page 16709

1 --- On resuming at 2.34 p.m.

2 JUDGE MAY: Yes, Mr. Kovacic.

3 MR. KOVACIC: Thank you, Your Honour.

4 [Interpretation] As -- I am going to continue

5 where I left off before the break. Just in response to

6 the questions asked of my colleagues regarding the

7 partial judgement, if I can make -- may call it that

8 way.

9 My argument boils down to, pursuant to Rule

10 98 bis, the interpretation allows that the Chamber rule

11 individually, charge by charge, by either rejecting a

12 full charge or reject parts of it, let's say certain

13 locations.

14 And this argument rests on a basic principle,

15 which is to be found in all legal systems, argumentum.

16 In other words, that Trial Chamber has the authority to

17 rule in a very general sense on every charge, but if we

18 take this ancient legal principle, it is present in all

19 legal systems. It can also rule on a part thereof.

20 For example, I see no formal reason for the

21 Trial Chamber to rule on rejecting, let's say, point 2

22 or rule -- or on just part thereof in which Mr. Cerkez

23 is guilty for persecution in the territories of the

24 municipalities of Travnik -- Novi Travnik and Busovaca

25 until or up to April 1993. Because the indictment

Page 16710

1 charges him for persecution in -- for the persecution

2 within the period April 1992 to the end of 1993, and

3 for the municipalities of Busovaca, Novi Travnik, and

4 Vitez. And, obviously, the Trial Chamber has the

5 discretion to rule on just a part of it.

6 And I think by invoking the principle of

7 judicial economy, I think I need not to elaborate,

8 except to add that the principle of fairness to the

9 Defence, because the Defence, for purely practical

10 reasons, has to put up defence against all the

11 arguments, even if it is convinced that evidence will

12 not be led on certain charges at all. And the Defence

13 would not have the right to do otherwise, because it

14 would be in violation of its ethical code if we were to

15 judge on facts only after they have seen evidence.

16 I will not belabour this, but I would just

17 like to make some additional comments on several

18 issues. One of them is: What is the quality of

19 evidence or, if I may put it this way, what is the

20 evidentiary value of evidence led so far, even if we

21 use the standard of prima facie and how much have they

22 inculpated my client.

23 In order to summarise the argument and be

24 brief, I think I can categorise the evidence into three

25 groups. The first group, which I think is probably

Page 16711

1 where the majority of witness statements fall, which

2 are -- which have been levelled against my client, can

3 be reduced to some sort of a hearsay, because they used

4 the rumours, opinions, hypothetical models, things that

5 should have happened. For instance, a witness

6 testified that according to the JNA doctrine, such and

7 such things should have happened and similar

8 statements.

9 I got the impression that there is something

10 wrong with -- thank you. I'm sorry.

11 So in this group these were the kind of

12 statements which did not speak to the facts. People

13 did not see or hear certain things and they just talked

14 about the ways in which they found out or learned about

15 certain facts. And facts are paramount for us.

16 When we heard about opinions and beliefs and

17 hypothetical models and rumours, the Trial Chamber has

18 always told us that they would weigh this kind of

19 evidence appropriately.

20 Just to illustrate the value of such

21 statements, several times it was -- there was evidence

22 about Samir Trako in Hotel Vitez in May 1992.

23 His murder is not charged in the indictment,

24 so I can only assume that the Prosecution only wanted

25 to use this murder as an example of persecution, which

Page 16712

1 was committed as early as May 1992.

2 And the witness, who is a crime technician,

3 who is expected to be talking about hard facts, in

4 fact, forensic facts, all of a sudden, and after it

5 becomes clear that he doesn't have the facts, he

6 says -- and so the rumour-mill started.

7 This is just one example. I will not mention

8 any other except for one, which is interesting for me

9 professionally.

10 Witness Sulejman Kalco who was a military man

11 who was called to talk about military matters, about

12 armaments and military doctrine and deployment, and he

13 talked about the truck bomb on the 18th of April in

14 Stari Vitez. He said that he saw my client in the APC

15 of the British Battalion, which apparently was bringing

16 Sefkija Dzidic to a meeting, and he saw there my client

17 with a cynical smile on his face.

18 I asked a forensic specialist. I think that

19 not even an expert could interpret a smile as such, and

20 he was no expert.

21 There are a host of such examples, and I'm

22 not going to cite any more of that.

23 The second group of evidence is a group that

24 could not stand by itself. It will only be relevant in

25 the context of a wider set of evidence. These are

Page 16713

1 facts which we might term circumstantial evidence -- I

2 see that that is the translation here -- where a whole

3 set of proofs is missing in order for such evidence to

4 have probative value.

5 Let me just give you a brief illustration of

6 what I mean. In at least two witness testimonies, for

7 example, those of witness Rebihic and Kalco and the

8 documents bearing their witness statements, it follows

9 quite clearly that the intelligence services of Bosnia

10 and Herzegovina, while the conflict was still going on,

11 not later but during the conflict, that is, the second

12 half of 1993, organised the gathering of information

13 and evidence concerning perpetrators of war crimes.

14 They did this in an organised manner, and we have heard

15 witnesses testify to this effect.

16 Quite a large number of documents originating

17 from these efforts and this work done by the army have

18 been tendered in evidence before this Tribunal. It is

19 a fact that these services have not succeeded in

20 producing and handing over a single document or a

21 single material piece of evidence which would quite

22 clearly and unambiguously incriminate -- of course,

23 according to the criteria used by those services, not

24 by the criteria of a court or Tribunal, that they would

25 incriminate Cerkez as a perpetrator of war crimes.

Page 16714

1 Let me remind you of two documents tendered

2 in evidence which witness Rebihic, as an intelligence

3 agent in Stari Vitez, who was physically sitting

4 several hundred metres away, as the crow flies, from

5 Cerkez for 11 months while they were surrounded, and he

6 mentioned 30 names, first and last names, and

7 descriptions of people which he considered -- whom he

8 considered to be war criminals, and in this process he

9 never once mentioned Cerkez.

10 Of course, there are other examples of this

11 kind. The only logical conclusion is that such

12 evidence favours the Defence more than it does the

13 Prosecution, because if that service was professionally

14 engaged in collecting this information, and it was, and

15 if Cerkez was the kind of person he is described as in

16 the indictment, among the large numbers of soldiers

17 present in the area, then it is quite illogical, and

18 logic is the tool we have to use, that Cerkez is

19 nowhere mentioned.

20 Finally, the third group of evidence which --

21 the probative value of which is in doubt, is the

22 following: The Prosecution uses evidence, quite

23 consistently from the very beginning, through the

24 supporting material, the discovery material, in which

25 it simply wishes to blacken the character of the

Page 16715

1 accused, to smear his character and to describe him as

2 a negative person who, since he is negative, will do

3 bad or prohibited things. This is an old idea in

4 criminal law. Every police everywhere has always tried

5 to depict every accused as an immoral person, a

6 dishonest person, in order to be able to prove that he

7 has committed an offence.

8 In this way, an attempt was made to create an

9 impression of guilt by association. In other words, we

10 are again dealing with the thesis that the HVO is a

11 negative group of people as such and that Cerkez was

12 associated with negative people through this

13 organisation, and, therefore, he himself must be a

14 negative person.

15 For example, his friendship with Darko

16 Kraljevic. We have heard a lot about that Darko

17 Kraljevic, and he cannot be avoided in these

18 proceedings and in all proceedings dealing with the

19 Lasva River Valley, and persistent attempts have been

20 made here to build up a story using witnesses to the

21 effect that if Cerkez was not his superior, then at

22 least they were friends. This, of course, is a story

23 with no foundation, and of course we'll have to deal

24 with it in our defence, but we think that the value of

25 this evidence is something that the Tribunal should

Page 16716

1 evaluate now at this stage of the proceedings, because

2 these are unnecessary matters that the Defence will

3 have to deal with.

4 A similar example is the meeting in the hotel

5 after the murder I mentioned, during the night, and a

6 witness said that Cerkez arrived in a black uniform,

7 escorted by a group of young men wearing black

8 uniforms. And no one ever saw or mentioned this

9 anywhere else, but we heard this, and the black uniform

10 in early 1992 has no relevant value except to

11 characterise him as someone who uses a black uniform to

12 demonstrate his political opinions. That was the goal.

13 Or, for example, the testimonies about the

14 purported public speech by Mario Cerkez in which he

15 promised a reward for enemy ears or fingers that had

16 been cut off. And until we got the document Z1140,

17 from which we learned the real answer, that the story

18 about this notorious speech was in fact made up by a

19 man called Fikret Hrustic, who was a member of a

20 radical brigade. And that this was mentioned in

21 milinfosum 68.

22 The only point I wish to make is that the

23 real probative value of such evidence which has been

24 presented so far in the manner in which it has been

25 presented, and without creating a complete set of

Page 16717

1 circumstances, and without any additional material

2 proof, is completely worthless. And I am deeply

3 convinced that if the trial were to end now, the Trial

4 Chamber could not reach any other decision if it

5 applied the standard of beyond reasonable doubt.

6 This is why I move that the Trial Chamber

7 makes such a ruling now and reject the indictment

8 against Mr. Cerkez in its entirety.

9 If the Court will allow me, I would now just

10 like to mention very briefly the points raised in the

11 Prosecution's reply to our motion. And to save time, I

12 do not think we need to reply fully to this. If the

13 Court so orders, we will do so in writing. But I would

14 just like to respond to a few salient points.

15 One of the fundamental problems that the

16 Prosecution continues to face, and I think this is

17 evident from the submission, is the problem of time.

18 It seems that the Prosecution finds it quite irrelevant

19 when an event took place who was in what position at

20 that time, whether there were subordinates to my

21 client, and what their positions were at that time.

22 And that is one of the essential issues in

23 this case. And now I am inadvertently touching upon

24 what I began with, and that is Count 2 of the

25 indictment, the length of the persecution, or the

Page 16718

1 duration of the persecution.

2 I do not wish to use broad terms, but we have

3 dealt with this in the Pre-Trial brief. If you will

4 forgive me, it seems somehow that my client has been

5 accused of persecution and other offences because in

6 1992 he volunteered as a relatively active person to

7 help organise and implement a struggle against the

8 Yugoslav People's Army and its local paramilitary

9 troops.

10 I have to reiterate that the whole story that

11 we are trying to throw light on, retrospectively, did

12 not take place in outer space. It did not take place

13 under a glass jar, protected from the rest of the

14 world. I wish to remind you that the war in Bosnia,

15 and I think that everyone, not just we in this

16 courtroom, but historians, politicians, analysts,

17 everyone who has dealt with Bosnia, and everyone really

18 has dealt with Bosnia, what they all agree on is that

19 the war in Bosnia started with the aggression of the

20 Yugoslav People's Army and the rebellion of the Serbian

21 people, or a part of the Serbian people in Bosnia, with

22 the aim of dividing Bosnia and, according to

23 Milosevic's plans, either to remain part of Yugoslavia,

24 which was falling apart, or at least for those parts

25 inhabited by Serbs which they felt they had a right to

Page 16719

1 keep for Serbia, should stay a part of that country.

2 This war, and this aggression, were the cause

3 of everything that happened later, as well as being the

4 cause of the Croatian-Muslim conflict.

5 I am not saying this, Your Honours, as my

6 closing brief, but only to put these events in their

7 proper context. The Lasva River Valley happened as a

8 consequence of this war, yet my client is being

9 incriminated for his role in 1992, when he was acting

10 as a volunteer, organising the struggle of the Croatian

11 and the Muslim people jointly against the Yugoslav

12 People's Army and the Serbian local paramilitary troops

13 which were threatening them.

14 Unlike many other municipalities in Central

15 Bosnia, and elsewhere in Bosnia, which we have heard

16 about from witnesses where everybody says, "The war has

17 not yet come to my doorstep, so it is no concern of

18 mine." And many were not prepared for the aggression,

19 and that is why those municipalities fell. Vitez was

20 well organised.

21 However, from the Prosecutor's response, it

22 follows from several of the points made in the first

23 part that Cerkez supported and contributed to the HDZ,

24 rose speedily through the hierarchy, became the

25 commander of the Stjepan Tomasevic Brigade. And then

Page 16720

1 on page 80 under B, it is stated that his

2 responsibility in that period covered the

3 municipalities of Vitez and Novi Travnik. And there is

4 no mention of -- because this obviously refers to the

5 early period, that is 1992, there is no mention of what

6 the HVO and, specifically the Stjepan Tomasevic

7 Brigade, were actually doing at that time. And their

8 only goal was the struggle against the Serbs, as I have

9 said.

10 Then there follows a statement to the effect

11 that Cerkez used to come to Busovaca in order to visit

12 Dario Kordic and other important --

13 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic,

14 allow me to interrupt. As you have just said, it is

15 not the time yet to enter final pleadings. Time is

16 going by swiftly, and we want to get to the end of this

17 argument this afternoon, and we will not make any

18 headway if you just follow the issues that are raised

19 by the application of Rule 98 bis. And you've told us

20 about all this in your written submission. We have

21 read that very carefully. And I am sure that it would

22 be much more useful to concentrate on a number of other

23 issues.

24 You'll have time later on during the trial to

25 expose your arguments within the framework of final

Page 16721

1 pleadings.

2 MR. KOVACIC: [Interpretation] Your Honour, I

3 agree with your remarks, and I am trying to find a way

4 to shorten this. So I will try to summarise as

5 follows: We have submitted a written brief. I have to

6 apologise, because we did not have much time to prepare

7 it, and in the last two weeks of the proceedings,

8 important matters came up. My learned friend,

9 according to the principle of equality of arms, also

10 had a very short period of time at his disposal.

11 I will not go further into a detailed

12 analysis of every point. I am talking now about the

13 Prosecution response from paragraph 8 onwards. I would

14 only like to say that nothing new has been said here.

15 Secondly, it seems that there are very many

16 incorrect facts here, especially there is much

17 confusion about time, because considering the manner in

18 which these events took place, it is not irrelevant

19 whether somebody took up a position in 1992, for

20 example, in the summer, fighting on Vlasic against the

21 Serbs, exposing myself to risk, or in 1993 when a civil

22 war broke out. So this is important.

23 Let me just refer to one more point, because

24 I think there was not a single piece of evidence of any

25 involvement of Cerkez in Busovaca. In paragraph 36,

Page 16722

1 under point (C), the Prosecutor refers to a witness. I

2 think she was protected. I haven't had the chance to

3 check, but I will not mention her name -- this is at

4 36(C) -- who said that Cerkez used to come to Busovaca

5 to visit Kordic, which is not something we heard from

6 anybody else during the presentation of evidence. And

7 she said, to a question put to her, that on one

8 occasion she saw Cerkez entering the municipal building

9 in Busovaca. She didn't say he was coming to see

10 Kordic and, more importantly, she didn't say when she

11 saw this.

12 I am now referring back to what I have

13 already said. These statements have no probative

14 value, simply because they are not -- they do not refer

15 to relevant facts.

16 A third point I wish to make is that the

17 thesis is being reiterated, which is like a

18 mathematical equation, and the mathematical equation is

19 as follows: A soldier from Vitez equals Cerkez's

20 subordinate, and Cerkez's superior responsibility,

21 according to Article 7(3), is built upon this.

22 I would like to say that in Vitez, Vitez was

23 the headquarters of the Operative Zone. There were

24 various units there, and my client's unit was only one

25 of these.

Page 16723

1 Your Honours, I would like to conclude with

2 this. I do not want to take up any more of your time,

3 but I would like to repeat my motion that the Trial

4 Chamber reject the Prosecution's case or at least to

5 reduce the area and the time of Count 2, persecution,

6 or, alternatively, and I would like to add this today,

7 this is not something I have stated in my brief, with

8 respect to Count 44, destruction of religious

9 institutions, which mentions that this was done in

10 Stari Vitez, Ahmici, and Divjak, and that Stari Vitez

11 and Ahmici took place in April 1993 and Divjak in

12 September 1993. I think that for the same reasons I

13 have already mentioned, this count referring to Divjak

14 in September 1993 should be rejected, because Divjak

15 was not mentioned once in these proceedings and this

16 would significantly shorten the proceedings if we did

17 not have to present evidence concerning a place where

18 something did not take place. It is very hard to prove

19 something that did not happen, but we will try then to

20 find witnesses who will talk about Divjak.

21 I have nothing further to add unless Your

22 Honours have any questions.

23 JUDGE MAY: Thank you, Mr. Kovacic.

24 MR. KOVACIC: Thank you.

25 JUDGE MAY: Yes, Mr. Nice.

Page 16724

1 MR. NICE: I'll deal first with the relevant

2 standard, and I can deal with it very shortly. It is

3 the first time, I think, that the relevant standard has

4 been argued, because it wasn't argued in Jelisic,

5 although we drew that to your attention, as a case of

6 interest, in our brief.

7 What happened in Jelisic was that Defence

8 counsel declined to make any submission of no case.

9 The chamber made it clear that it was going to make a

10 decision and declined any argument or any argument

11 about the right to argue on what the standard was or

12 what the evidence was. So it's never been argued.

13 Our brief makes clear that all decided cases

14 in the United Kingdom, even in respect of magistrates

15 sitting alone, require a higher standard -- I beg your

16 pardon, a standard that matches the standard that we

17 propose; namely, whether there is evidence sufficient

18 for the Tribunal of fact properly directed in law. The

19 commentary in Archbold isn't law for the United

20 Kingdom; the cases are.

21 Can I add to what's in the brief by this

22 additional bit of United Kingdom procedure: In cases

23 involving non-criminal matters, civil cases tried by

24 judges alone, if counsel for a defendant seeks to argue

25 that there is no case for him to answer, he is

Page 16725

1 ordinarily, if not invariably, required to state

2 whether he is going to call evidence or not, and only

3 if he announces that he will be calling no evidence

4 will the judge deal with his submission. There may

5 have been occasional exceptions to that, but that is

6 the almost invariable or invariable rule. That, again,

7 fits with the general suggestion that at that stage of

8 a case, you don't apply the final test, where, of

9 course, the test is different in civil cases from

10 criminal cases.

11 His Honour Judge Bennouna's question about

12 whether there is, as it were, a changing standard

13 starting at the confirmation of the indictment and

14 passing through the test appropriate at this stage to

15 the test appropriate at final determination, led us to

16 investigate the Tribunal's jurisprudence on that point,

17 and it is not unhelpful and not uninteresting.

18 So far as the test for confirmation is

19 concerned, the prima facie test, as it is set out in

20 the Statute, authority from the ICTR in at least two

21 decisions, suggests that the standard is lower than the

22 standard we propose as appropriate at the end of the

23 Prosecution's case.

24 Ntakirutimana sets it out as a reasonable

25 suspicion that the suspect did in fact commit the

Page 16726

1 crimes as being the test. And in Nyiramasuhuko, the

2 test is that there must be facts which raise a clear

3 suspicion that the suspect is guilty of committing the

4 offence for reasonable grounds to exist.

5 There is another decision in this Tribunal,

6 recent decision by Judge Hunt in a recently confirmed

7 indictment which sets a different standard. But it is

8 out of line with the majority of the jurisprudence.

9 And, of course, is not something in the circumstances

10 that could be appealed, given that he confirmed the

11 indictment concerned.

12 So that rather fits with the general -- not

13 proposition raised by His Honour Judge Bennouna, but

14 the possibility raised by him that there should be a

15 three-part test, for which this test is the middle test

16 and for which the appropriate test will be the one we

17 postulate.

18 And finally, because we've argued this matter

19 fully in our brief, I draw to the Tribunal's attention

20 that were the Defence to be right in the test or the

21 standard that they propose, why then, at the end of

22 every Prosecution, for any count that goes forward, it

23 might be that the Chamber would have to prepare a full

24 written, reasoned judgement before the case could go

25 forward. It's hard to see how the thing could be dealt

Page 16727

1 with otherwise. Such a judgement, inevitably, making

2 it more difficult for them, not to depart from their

3 judgement, but for them to rearticulate the case, if

4 and when they have heard further evidence called by the

5 Defence. But that would be a practical consequence.

6 Before I turn to the matters argued today on

7 the facts of this case, can I deal with something that

8 probably won't arise -- I suppose it might do. Namely,

9 adjudicated facts in other cases. The Tribunal has

10 required of us, following the submission of our motion

11 in respect of Kupreskic and Blaskic, that we identify

12 findings we would rely upon. We've had quite a

13 generous period of time to deal with that, but we

14 thought it appropriate to deal with it as swiftly as we

15 could.

16 The two judgements come in different format.

17 The Kupreskic judgement, very compactly setting out

18 conclusions separate from earlier discussion, but the

19 Blaskic judgement, it appears to us, taking factual

20 decisions, adjudicated facts in its stride as it

21 narrates the history of events.

22 Given these two different approaches, what we

23 have done, and the documents are available now, what we

24 have done is to take the versions of each judgement and

25 to highlight electronically, so it turns it grey, those

Page 16728

1 passages upon which we would rely.

2 I am aware of the fact that it is by no means

3 uncontroversial whether adjudicated facts can be relied

4 on before the other case has gone through the process

5 of appeal, which seems all cases do in this Tribunal,

6 nearly all cases.

7 Nevertheless, it is entirely appropriate that

8 we should seek to rely on adjudicated facts at this

9 stage for two reasons. First, there has been a case,

10 Kvocka, I think, where some adjudicated facts from

11 Tadic, first instance, were relied upon, although I

12 accept that the majority of those facts, or indeed all

13 of them, were really background historical matters.

14 And I note, in parenthesis, there will come a time, if

15 it hasn't come already, when some of the facts

16 concerning what happened in this conflict, perhaps even

17 some of the facts that happened -- some of the facts

18 concerning what happened in the Central Bosnia area

19 will become effectively accepted historical facts. But

20 I move on.

21 So one reason is that there have been cases

22 where adjudicated facts from a first instance decision

23 have been relied upon in a second first instance

24 decision. But second, we do not know the order in

25 which cases will be determined. It may be it goes

Page 16729

1 case, case, case, appeal, appeal, appeal for the Lasva

2 Valley cases.

3 It may equally be that one or -- that in the

4 same way as Kupreskic has passed through appeal before

5 determination -- I'm sorry. In the same way as other

6 cases have reached appeal before determination of

7 Kordic, that these other cases may pass through appeal

8 before Kordic, and, therefore, adjudicated facts will

9 be subject to appellate finding.

10 Therefore, if we don't put or seek to put

11 those adjudicated findings in now, we won't be in a

12 position to argue about them at the end of the case,

13 and further, to discuss the law applicable to

14 adjudicated findings.

15 JUDGE MAY: Mr. Nice, are you seeking now to

16 put your adjudicated facts?

17 MR. NICE: What I am saying is this: That

18 if, at this stage, any count were vulnerable to

19 dismissal, for want of evidence, in respect of which

20 there is an adjudicated fact in a first instance

21 decision, Blaskic or Kupreskic, then to throw that

22 count out now would be to do irreparable and incorrect

23 damage to the Prosecution. For the time might well

24 come, and might well come before final determination of

25 this case, when the fact would be available even in the

Page 16730

1 Appeal Chamber.

2 So we have already identified in the way I've

3 described the adjudicated facts in both cases upon

4 which we would rely. I don't want to run through them

5 all now in any detail, but Your Honour will know in

6 Kupreskic, findings of ethnic cleansing and systematic

7 attack and so on were made; that the Muslims were the

8 group to be expelled.

9 In the Blaskic case, on our understanding of

10 what are the factual findings of that Chamber, divined

11 from the French version, then the Court should know

12 that there have been findings about the involvement of

13 the Vitez brigade, in the area of Ahmici and in Vitez;

14 specific findings about the nature of the attack

15 against the Muslim population in Vitez involving the

16 Vitez brigade; findings about the failure to punish

17 offending soldiers; findings specifically that the

18 planning of the attacks and the execution of the

19 attacks was not limited to the Vitezovi; and some quite

20 specific findings about the involvement of Mr. Cerkez.

21 But I don't forecast they will be necessary

22 at this stage, for reasons to which I will now turn.

23 But our position is that we are seeking to have them

24 considered in due course, therefore, we put them in

25 now. And the documents highlighting the passages on

Page 16731

1 which we rely will be available, and it's a matter for

2 the Chamber whether they should go through the Registry

3 in the formal way to be numbered or whether they should

4 be accepted in any other way.

5 As I turn to the submissions made by both

6 defendants in writing and repeated here today, we find

7 ourselves in the position, so far as the Kordic

8 submissions are concerned, of still not fully

9 understanding where it is being said that there is no

10 evidence, as opposed as to where it is being argued

11 that the evidence may not be sufficient in due course.

12 We made it clear in our submissions that we

13 simply couldn't deal with the fully argued case in the

14 time available, and have not sought to do so, because

15 it is not necessary.

16 What we did, and the Chamber will have this

17 in mind, was to provide, as Annex 1 to our brief, a

18 document built on an earlier document you will perhaps

19 remember served with the Pre-Trial brief, that lists

20 the witnesses who have given evidence on particular

21 topics, and where many witnesses have given evidence on

22 a particular topic, summarising just a few of the

23 witnesses for the purposes of today's hearing.

24 This same document, let it be said, is

25 helpful if there is any potential in the Chamber to

Page 16732

1 exclude villages here and there from counts where they

2 are recited. So that, for example, if the Chamber were

3 to turn right to the end of this document, page 40, and

4 to have in mind Mr. Kovacic's latest, most recent

5 application in respect of Divjak, it will see from the

6 formulation of the document that in respect of Count

7 43, or Count 44, it's true that we have not produced

8 evidence in respect of the destruction of a religious

9 or educational institution for Divjak, nor, indeed, for

10 Stupni Do.

11 So that the document works in that way, and

12 save in a very limited number of cases, the previous --

13 the one's I've just referred to being a couple, save

14 that in a very limited number of cases, every box is

15 filled with one or, in most cases, many more than one

16 witness.

17 That document, therefore, goes to show

18 certainly that there is evidence for the Chamber to

19 consider on every count in this indictment and indeed

20 against each defendant, and the only value for the

21 defendants or for the Chamber of those empty boxes, if

22 there is in the Chamber the potential to cut down the

23 terminology of the indictment. In our respectful

24 submission, there is no such power. There is a power

25 for us, I think, to amend indictments on application

Page 16733

1 and with leave, but we do not seek to exercise that

2 power.

3 We say that where, for example, there is no

4 evidence on the destruction of a particular mosque or

5 no evidence of plunder at a particular location, why

6 then of course that matter can be dealt with in the

7 recent decision of the Chamber in due course, and, of

8 course, as His Honour Judge Bennouna made clear in an

9 earlier discussion with one of my learned friends,

10 there's no need for them to produce evidence to counter

11 evidence that doesn't exist.

12 JUDGE MAY: Yes, of course, but they should

13 know where they are. They should know the case that

14 they're facing.

15 Is there any reason why, in this case, for

16 instance, you shouldn't simply remove those of your own

17 motion?

18 MR. NICE: The ones that are blank and

19 subject to a final check if we have missed something,

20 I'm not troubled by that, no.

21 JUDGE MAY: It maybe the simplest way. And

22 while we are on the topic, maybe you're coming to

23 Count 1, the 24 municipalities, but I would like to

24 hear you on that.

25 MR. NICE: That's my next point.

Page 16734

1 JUDGE MAY: Well, let's deal with the

2 blanks. Are there any others to which you could refer

3 us?

4 MR. NICE: You can see them in page 40. You

5 can see one or two in page 39 and 38.

6 As to the destruction of villages, I've been

7 reminded that of course we may not have included

8 everything here. In particular, we may not have

9 included what the video over-flight -- the over-flight

10 video produced by Colonel Capelle revealed. No, I

11 think we have that. On second thought, I think we have

12 got it there. But this doesn't, at the moment, pretend

13 to be an absolutely exhaustive list, but subject to

14 further checking, when we've got a little more time

15 than was allowed given our need first to read and then

16 to respond to the first defendant's motion, yes,

17 there's no reason why these matters can't be deleted,

18 because we don't expect any evidence to be

19 forthcoming. Indeed, we hope that the document will

20 prove to be helpful to the Chamber, because we know the

21 Chamber's no doubt been doing its own analysis, and

22 indeed to the defendants.

23 But that approach is not one we would take in

24 respect of the persecutions count and in respect of the

25 municipalities. The terminology reflects that these

Page 16735

1 activities were going on in the overall area as

2 described. It was going on as part of the overall

3 plan. It may be that we've only called evidence in

4 respect of some, not all the municipalities. There is

5 no need now to go through a complex process of amending

6 to identify the municipalities and then to strike some

7 out. This count in the indictment is properly framed.

8 The evidence can, again, be readily identified, what

9 there is to be met, but no further amendment is

10 required.

11 The second point that's taken on that count

12 is in respect of the use of the word "and" in the

13 penultimate act of persecution listed and before the

14 ultimate one, leading Mr. Sayers to be able to say,

15 "Well, that means each and every act of persecution

16 has to be established."

17 Not our intention, although, as a matter of

18 fact, every box in the persecution count is filled in,

19 nor required as a matter of conclusion, and sometimes

20 means simple "and," sometimes means "or." And I'm told

21 by Mr. Scott, from his federal practice, I dare say a

22 practice that may have been reflected in whoever was

23 doing the drafting of this indictment when it was

24 drafted, tells me that one of the standard directions

25 of the Federal Judge to the retiring jury is that the

Page 16736

1 word "and" means "or." Apparently that's a standard

2 direction.

3 So that there is no need to amend that single

4 word which, if you have the amended indictment before

5 you, can be found at page 10, in the version I have

6 certainly, at the end of subparagraph (i) and following

7 the word "livestock," for it's that word upon which the

8 application is built. It would be utterly ridiculous

9 to say that if these other acts of persecution were all

10 made good, that for whatever reason one and one only of

11 the subcategories was not established, why, then, the

12 whole count should fall. That can't be the intention

13 of the drafters, and certainly wasn't our intention.

14 In the event that the Chamber would prefer

15 the matter to be amended to have the word "or," that

16 can be done, but it's our submission that that simply

17 isn't necessary.

18 Now, a number of factual arguments have been

19 raised both in relation to the persecution count and

20 then, I think, in relation to other particular counts,

21 although I have found it hard to be quite sure which

22 ones. If we are right about the standard, there is no

23 need for us to address factual arguments that go simply

24 to the weight of evidence that undoubtedly exists.

25 What I will do, unless the Court tells me

Page 16737

1 otherwise, is make some observations and answers in

2 relation to some of the points raised, but our basic

3 position is that in all of these counts, it's clear

4 there's evidence to support the counts and the various

5 constituent elements of those counts and that the

6 exercise being engaged in is inappropriate at this

7 stage.

8 So far as discrimination is concerned, a few

9 corrections. The expert Ribicic did not accept that

10 this was a legitimate organisation; the reverse. He

11 also made it plain that even in its de jure form, it

12 didn't meet the required international standards for

13 the protection of the interests of minorities and that

14 it established a mononational structure. In any event,

15 the de jure nature of that organisation is hardly

16 determinative at all of whether there was persecution.

17 There was persecution in the sense of

18 discrimination, on our case, followed by particular

19 acts of persecution, leading to the plural,

20 persecutions, as set out both in the empowering Statute

21 and indeed in our indictment. And all the crimes, the

22 killings, the burning and destruction of houses, of

23 religious objects and so on, they all are constituent

24 elements of the overall campaign of persecutions, which

25 is rightly charged, which was widespread and, as the

Page 16738

1 Chamber knows, went well beyond the area covered by

2 this indictment. We've had some evidence on that, even

3 as far as Mostar.

4 The Chamber will have in mind just brief

5 features of the evidence additional to what might be

6 contained in our brief, the examples of --

7 JUDGE BENNOUNA: [Interpretation] Mr. Nice,

8 allow me to interrupt you. Quite simply, and in order

9 for everything to be quite clear, it is something that

10 is linked to the question put to you by Richard May,

11 the President of this Trial Chamber, who said that the

12 persecution could be inferred from a certain number of

13 other crimes or other acts and not necessarily inferred

14 by a certain number of statements made by the accused,

15 but you are telling us that, in fact, "persecution" is

16 not an indictment -- a point of indictment in itself

17 but it is linked to other points that are present and

18 that are grouped in the indictment. Is that what you

19 mean when you say yes, but persecution is linked to

20 everything else in the counts, in the different counts,

21 when you speak of persecution, but also killings,

22 destruction of a certain number of religious buildings,

23 et cetera?

24 Could you be a little more specific? What do

25 you mean by the crime of persecution? What is your

Page 16739

1 definition of such a crime?

2 MR. NICE: I think Your Honour's question to

3 me is susceptible to the simple answer yes, yes in both

4 parts. First as to our adoption of the proposition

5 postulated by His Honour Judge May that these can be

6 matters of inference; but second, in answer to Your

7 Honour's more specific question: Yes, of course, the

8 campaign of persecutions carried out through, as the

9 indictment alleges, attacking cities, towns, villages,

10 and civilians, killing and causing injury to Muslim

11 civilians and so on, makes it quite clear that the

12 persecution count incorporates all or most of the other

13 matters referred to elsewhere. It is, in a sense, the

14 overarching, or in another sense, the central

15 allegation made.

16 As we know from the jurisprudence on

17 accumulative charging here, there is, in the Tribunal,

18 there is nothing wrong with and everything right with

19 these matters being charged the way that they have

20 been, but yes, but it incorporates the evidence that

21 relates to the other counts.

22 The couple of examples I was just going to

23 touch to, in case the Chamber had forgotten them, was

24 Cicak, Kljuic, and Tuka being forced out of their

25 positions by reasons of intolerance in the same way --

Page 16740

1 we had an example, I think, of a Croat Colonel in the

2 ABiH, if you remember, who couldn't be spoken to, was

3 untouchable.

4 Now, when we turn from the generalities as to

5 the evidence going to show the existence of the

6 persecution campaign, which I don't intend to deal with

7 any more, it's set out in Annex 1, in any event, to

8 Kordic's involvement, again this is covered fully in

9 our brief, his involvement in all of this campaign, in

10 the entire area, is established in various ways but

11 simply and shortly because he is shown to be the man

12 with authority and power is set out in our brief. He

13 never denied the authority and power when it was sought

14 of him. He was regarded by all as the most important

15 person in the territory.

16 It's clear on all accounts that the military

17 are driven by politicians, probably in nearly all or

18 all wars, but certainly in this particular territory

19 with its particular communist history.

20 There is plenty more detailed material to

21 which we could take you in respect of authority beyond

22 that that is referred to in our brief, which was

23 necessarily prepared at some short notice and ignorant

24 of what might be argued as no case, true no-case

25 examples.

Page 16741

1 I am loathe to take too much time, looking at

2 the clock, but I can certainly identify, in case it's

3 helpful, the particular additional exhibits that you

4 may want to look at, if you are at all concerned about

5 the state of the evidence on this.

6 The Chamber will, of course, have in mind the

7 transcripts of the meeting with President Tudjman,

8 23773.1, where he was present, and the capacity in

9 which he was present, representing that entire

10 community. It will have in mind 219 of the 19th of

11 September of 1992, where his signature authorised

12 somebody to carry military equipment from one territory

13 to another. It will have in mind Z128, where the

14 defendant Kordic signs for the Central Bosnia regional

15 command allowing free passage of individual -- sorry.

16 The exhibit reference I gave first is wrong. It should

17 be 2717.

18 Z128, an example of his having the power by

19 signature, and I think over a Mostar seal, to authorise

20 someone to carry arms in the territory.

21 Z187, ordering a meeting at Grude and so on.

22 JUDGE MAY: Just a moment. We are getting

23 the French coming through on the English channel.

24 THE INTERPRETER: The interpreter apologises

25 for this technical mistake.

Page 16742

1 JUDGE MAY: All right. We are on.

2 MR. NICE: Z139, giving an order to Vares,

3 which of course is always important in relation to

4 Vares and Stupni Do, to allow unimpeded access to the

5 HVO of the Ilidza municipality, signing as deputy

6 president of HZ HB.

7 187, a further compulsory attendance

8 invitation to the president of Vares, HVO.

9 Z202, the handwritten note from Rajic

10 requesting people to report to Kordic for financial

11 allowances.

12 219, an order signed by Blaskic in respect of

13 weapons going towards Herzegovina requiring a valid

14 stamp of either the regional staff or the main command

15 with the signature of Kordic, or Blaskic.

16 The Court will want to have in mind Z233, a

17 document on the 22nd of September signed by Kordic

18 dealing with the complete control of the HVO of the

19 Vares municipality and various other matters, signed in

20 his capacity as deputy president of the HVO.

21 Z229, 30th of September 1992, a note of a

22 meeting where Kordic was speaking for the entire Croat

23 people and saying that if negotiations with the Muslims

24 didn't take place, then the Croats must engage in total

25 obstruction. And he appeared to chair and take over

Page 16743

1 the meeting, although not listed as its chairman.

2 He spoke of a meeting the previous day in

3 Vares, Z261, an order signed by Rajic on the 29th of

4 October, stating that Dario Kordic as deputy commander

5 of HZ HB requested he send all available forces to

6 defend Jajce.

7 2624.1, a meeting where Colonel Kordic is

8 signed as being present.

9 Z1080, I needn't trouble with that, I think,

10 and various other documents.

11 So in addition to the material that we've

12 summarised towards the end of our submission, the case

13 against Mr. Kordic, as the Chamber will well have

14 recognised, is that on the evidence he is shown to be

15 the most important person and is and was the most

16 important person in that area, plainly having authority

17 over military matters.

18 An aside. Complaint is made of the fact that

19 these people, the international witnesses who were

20 there to preserve the peace, didn't ask him very often

21 what his power was. Strange for them to be criticised

22 for that, but never mind. Odd for them to be

23 criticised for that. When you see a man who travels

24 with armed outriders in another car, who can only be

25 approached at his distant and well-armed location by

Page 16744

1 passing through layers of armed men, as we've been

2 told, and a man who never denies his authority, nothing

3 could be less surprising.

4 It's hardly the case that they are going to

5 go to such a man, in his retreat outside Busovaca, and

6 ask him if he is, in reality, the press spokesman. One

7 can think of a number of examples of people who simply

8 don't need to be enquired of as to their function.

9 Even in courts, I suppose you can. Authority is

10 revealed by what people do and, in his case, by his

11 never denying that he had it, and by showing, by the

12 things that he did, that he had it.

13 The Defence for Kordic then turn to deal with

14 various towns, for example, Travnik and Fojnica, which

15 aren't specified in the indictment and therefore to

16 which I don't need to turn. Villages like Rotilj and

17 locations like Tulica.

18 Now, if I am right in saying that the

19 indictments in principle stand and aren't to be

20 interfered with at this stage for absence of evidence

21 about a particular location, then I don't need to deal

22 with the evidence about those particular villages. Out

23 of respect for the arguments advanced, I'll say a few

24 things, just perhaps to correct some misapprehensions

25 that the Chamber might otherwise have.

Page 16745

1 As to Rotilj being a defendant place, the

2 position there, I think from the Morsink testimony, was

3 that the HVO commander concerned had explained that one

4 of his patrols had come under fire, and one of his

5 soldiers had been hit. But that's within the overall

6 setting of seven people found dead, including women, of

7 20 houses burnt.

8 There is further evidence that the Chamber

9 may find in, I think, Exhibit 702, in the order from

10 Blaskic on the 17th of April, setting out that there

11 was to be the capture of the areas that included that

12 village.

13 As to Zepce, there is quite a lot that I

14 could say, but again it's possibly not necessary to

15 deal with it in that much detail. But in addition to

16 what we've said in our brief generally, the Chamber

17 will want to remind itself, perhaps, that in the

18 evidence of Stutt at 15159 in the transcript and

19 Exhibit 1293.2, you heard about the defendant Kordic

20 speaking graphically of Boban's heart being in Central

21 Bosnia, and saying in terms that the HVO would fight to

22 the last man to defend the pockets of Kiseljak,

23 Kresevo, and Zepce, an area in which he was plainly,

24 the Court may decide, interested.

25 In the evidence of Witness AD, and with

Page 16746

1 reference to Exhibit 1176.2, there was further

2 reference to -- by Kordic to the suggestion that the

3 HVO would regain territory they had lost, and link the

4 Kiseljak, Vares, and Zepce pockets.

5 Sir Martin Garrod, at 13539, dealing with

6 Exhibit 1364.6, spoke of the defendant saying that the

7 Muslims wanted the Lasva Valley, Zepce, Kiseljak, and

8 other locations.

9 Witness D, at page 3421 in the transcript,

10 deals with some of the crime base in Zepce. The

11 Chamber will remember that probably for the number of

12 prisoners involved, 1.500 in the hangar, matters of

13 that sort, and the suspicion that there were 5.000, and

14 the percentage of the parts of Zepce inhabited by

15 Muslims that had been destroyed. You also are hearing

16 evidence of the appalling conditions in which people

17 were detained.

18 You heard evidence of the destructions of

19 mosques in Zepce and so on.

20 So Zepce is a place in respect of which

21 Kordic had a clear interest. It fell within the

22 territory in which he had an interest, and of which, as

23 we say in our brief, he was not just an operator, he

24 was a creator. He was in at the beginning. This was

25 his enterprise.

Page 16747

1 As to Zenica, Your Honour has correctly said

2 that Zenica features both in the attack and in the

3 persecutions. But I do not take it that it is being

4 said as to the evidence of the shelling that there is

5 no evidence. The arguments that have all been

6 addressed, have all been arguments as to weight.

7 On that topic, I could, if the Chamber would

8 want it, or if I judge that I ought to, go into the

9 evidence in some detail. Perhaps it's sufficient to

10 note this, because the Defence rely on the conclusion,

11 or appear to rely on the conclusion in Blaskic.

12 In Blaskic, the evidence was either probable

13 or very probable that it was established with the HVO,

14 but not beyond reasonable doubt. And that was at the

15 end of all the evidence, different from the evidence in

16 this case. It was after hearing an expert who may or

17 may not be called in this case. And, of course, that

18 finding alone shows that there would be evidence

19 sufficient to meet whatever test is judged appropriate

20 at the half-time in a trial like this.

21 The Chamber will have in mind, in relation to

22 Zenica, evidence that may not have been available in

23 the Blaskic case, including the tape-recording between

24 Blaskic -- the tape-recording of the telephone

25 conversation between Blaskic and Kordic includes, I

Page 16748

1 think it's at page 2, Kordic expressing his views on

2 shelling Zenica at that much earlier -- not much

3 earlier, that earlier time, saying, "Well, if they

4 fight back, we'll shell them, but not now." A

5 tape-recording of very considerable value in all

6 particulars going to show his authority, his position

7 vis-a-vis Blaskic, but also going to show an interest

8 at that stage in shelling Zenica.

9 Also, and I am not sure if this evidence was

10 available in this form in Blaskic. You have the

11 evidence not only of where the shells came from, and

12 the probable location within the territory of the HVO,

13 you have the phone call to the radio station before,

14 and the very clear evidence from the expert Hamill,

15 that what was shown as happening in those three shells

16 was an absolutely standard target and hit by somebody

17 being kept informed of where the first shell was

18 landing, moving to the position that it sought to

19 reach, namely, the radio station. Something that may

20 have been judged a target, by no means a proper

21 military target, and so on.

22 I only go into it in that limited degree of

23 detail to emphasise the point that Zenica, even if it's

24 separable in any way within any of these counts in the

25 indictment, which we challenge, is something for which

Page 16749

1 there is plentiful evidence at this stage, different

2 evidence from the evidence in Blaskic, and evidence, of

3 course, to go forward to final determination.

4 In addition on Zenica, you've had some

5 evidence from a witness. I'm not sure if he was

6 protected or not so I better not name him.

7 JUDGE MAY: Mr. Nice, I have to attend a

8 meeting at 4, between 4 and 4.15. If you'd like

9 to go on till 4, we'll then rise. We'll sit again

10 at 4.15 until 5, with a view to finishing these

11 submissions today, which would be helpful.

12 MR. NICE: I should think that would be

13 possible. I hope so.

14 I'm sorry, I haven't checked whether he was

15 protected or not. It was a protected witness who gave

16 evidence, effectively, of reverse ethnic cleansing in

17 Zenica, he being a Muslim taken to Krizancevo Selo,

18 used as a hostage, and where there was efforts made for

19 him -- where he wanted to go to Zenica with his family,

20 that could only be accomplished on terms of the removal

21 of Croats from Zenica, some of them unwilling.

22 This is all part of the policy of reverse

23 ethnic cleansing, of which we've heard there and

24 elsewhere, for example, in Stupni Do.

25 You've also heard from Witness Q, who also

Page 16750

1 gave you evidence about Croats not wishing to be

2 exchanged, and how they had to be convinced or

3 persuaded.

4 Can I turn from that topic, which was touched

5 upon, to Divjak. I've already dealt with Divjak

6 because of the mosque that we accept is not the subject

7 of evidence, and let me come to, I think, Busovaca.

8 Busovaca again only becomes relevant if

9 there's any potential separation, which there isn't.

10 This is at the centre of the facts in this case. And

11 there are, perhaps, some other things to be said about

12 Busovaca, particularly in relation to the Defence

13 suggestions that life went back to normal in Busovaca

14 at an early stage. There has, in short, been

15 mischaracterisation of the evidence of the witnesses

16 there.

17 Witness A, for example, doesn't deal with the

18 return to the quality of life at all. He deals with

19 the way that there was a complete change in life going

20 on in Busovaca, and he described all of the negative

21 effects of that life, including the effects of those in

22 the various institutions and lawful agencies who lost

23 their jobs and positions. He deals with the sacking of

24 Muslims and the removal of state symbols, and the

25 taking over of radio stations.

Page 16751

1 I pause there, because I should have said

2 this earlier. Because one of the problems for the

3 Croats in the Zenica radio station was it was the only

4 remaining station they didn't control in the area.

5 Witness A told you about the introduction of

6 and necessary use of the Croatian dinar. You will find

7 reference to -- in the documents that were produced to

8 you, reference to the curfew, it becoming clear that

9 the Muslims didn't have any say in these matters. They

10 lost their rights to take part. That the HVO was

11 leading the whole organisation of life, having

12 abolished the Busovaca assembly and the municipal

13 executive council.

14 The municipal work force had to report for

15 work immediately, but people had to place themselves

16 under the command of the HVO.

17 As to the suggestion that it was in some way

18 free to people to return to work, even if they didn't

19 join the HVO, untrue; the requirement to join applied

20 to all, and not just to police workers.

21 The Defence say that some workers wouldn't

22 report, wouldn't get their jobs back if they acted

23 without justification. Simply no support for that.

24 You heard from Witness M saying it was clear

25 that any Muslims that wanted to maintain a position in

Page 16752

1 the government would have to become members of the HVO,

2 and that he and other Muslims had no legal or moral

3 powers. They just sat in their offices to pass the

4 time.

5 He explained how Asim Sunulpasic left the

6 administration and believed that was for reasons of

7 pressure and fear. He believed that the HVO wanted the

8 Muslims working in the administration who remained

9 simply as a bit of window-dressing for the ECMM.

10 Witness O told you not about his own position

11 being abolished, nor about finding a new job. He

12 stated that he later worked at Brataslana after leaving

13 the municipal administration position. They suggest to

14 the Defence that he was the head of a group that was

15 abolished. The group he headed was the executive

16 committee itself, all part of the clear act of

17 persecution charged in respect of Dario Kordic.

18 The Defence would have you believe that there

19 were two municipal departments still left headed by

20 Muslims, and they refer to Exhibit 175.1. 175.1 may

21 not be disputed, but what the witnesses said is as

22 follows: Witness M, that although he was appointed to

23 the Chief of General Administration, he had no real

24 power in that administration, was not invited to

25 meetings, and was not informed about what was

Page 16753

1 happening. Without his knowledge, he was indeed then

2 made a member of the HVO. More window-dressing.

3 They say that the restructured municipal HVO

4 government didn't require its employees to sign oaths

5 or allegiances. The response to that is both witnesses

6 whom I've referred to indicated they didn't sign any

7 loyalty oaths or allegiance, but it remains implicit

8 that that was the ultimatum they face in the order to

9 return to work.

10 And as to the suggestion that the community

11 was living a relatively normal life, our response is

12 that that is simply a failure to reflect the totality

13 and the reality of this evidence and that these were

14 Muslims living in fear, without rights, and without

15 entitlements that they should otherwise have had.

16 I see the time.

17 JUDGE MAY: We will adjourn now until quarter

18 past four.

19 --- Recess taken at 4.03 p.m.

20 --- On resuming at 4.20 p.m.

21 JUDGE MAY: If you could deal with the

22 matters in ten minutes or so, Mr. Nice.

23 MR. NICE: Yes, I hope so. Amongst other

24 topics referred to today, which, out of respect, I deal

25 with lightly, was the so-called Ahmici report. The

Page 16754

1 Chamber will recall that this was a document prepared

2 somewhere, time unknown, made available at the end of

3 the Blaskic case, and produced by us and shown to one

4 witness, Colonel Stewart, not because we acknowledge it

5 as an accurate and honest document, nor even because we

6 accept the accuracy of its apparent date, but simply to

7 show that if it's a false document, why would there be

8 need to raise such a false document if things were

9 otherwise in good order? The Chamber will recall the

10 comments and criticisms of the report made by

11 Colonel Stewart, and in light of the shortness of time,

12 I won't go into it further, but the report simply

13 doesn't fit with the events.

14 Interestingly enough, the earlier report of

15 Ljubesic, issued on the 16th of April, which is

16 accepted all round as an untrue or an inaccurate

17 document, is rather mirrored in the later report, and

18 if one looks at the reports together, one can see, it

19 may be argued, and we would argue if we had the time

20 and if it was necessary, really developing cover-up.

21 Of course, no official of the International Community

22 was informed of or provided with this alleged nearly

23 contemporaneous report, it first coming to light in the

24 Blaskic Chamber and right at the end of the Blaskic

25 case.

Page 16755

1 Stupni Do. I've already dealt with that in

2 part by dealing with aspects of Kordic's authority in

3 Vares. It is quite clear that it can't simply be

4 blamed on Rajic, a man for whom Kordic was shown to

5 have an earlier intention to remove him from office,

6 and as Mahmutovic told you, Mr. Mahmutovic told you,

7 it's clear that in order to fire someone, that person

8 has to work for you, and Kordic was clearly seen by,

9 consistent with other evidence, as Rajic's superior.

10 You heard further evidence, of course, from

11 Sir Martin Garrod dealing with this particular area and

12 also with the conclusions of Mr. Stutt that there was

13 no doubt about who spoke for Central Bosnia, and he was

14 incorporating this area within that general title or

15 description.

16 You will also probably have in mind from

17 Stutt's evidence his judgement that Kordic was the

18 third person in the military chain of command, and

19 that's something that was also spoken of by Sir Martin

20 Garrod himself.

21 The alleged dismissal of three important

22 people in the area -- and I say "alleged" advisedly --

23 and inquiries that follow do nothing but to show a

24 further determination to cover things up with the light

25 of the experience in Ahmici behind them.

Page 16756

1 The evidence about Stupni Do and about

2 Kordic's interest in that area and influence over it,

3 including his giving orders to Rajic, Z202 as an

4 example, fits with all the other evidence of the

5 general policy in this area. The Chamber will have in

6 mind, before even turning to the evidence of AO -- I

7 accept the evidence of AO is as yet incomplete because

8 he must come back for cross-examination.

9 But the Chamber will recall that when the

10 Witness AO described a decision that was made and then

11 had to be confirmed by telephone call or by

12 communication through the communications room, he was

13 doing something that was an echo of what we had heard

14 from other witnesses, and in particular the

15 international witnesses elsewhere, where Blaskic was

16 never able to make a final decision and had to defer to

17 someone else.

18 And you will also have in mind, in relation

19 to Witness AO, how his evidence of the purpose of the

20 Stupni Do massacre, reverse ethnic cleansing, a shock

21 to drive the remaining Croats out, to fit in with the

22 overarching plan, was a reflection not just of what we

23 have now already reviewed in Zenica as a small example,

24 but was a reflection of another witness, I think

25 Mahmutovic, who postulated that as the real reason for

Page 16757

1 the Stupni Do event.

2 Kiseljak. Well, I've already dealt with that

3 in part in touching on the telephone conversations

4 that -- the telephone conversations, yes, that were

5 overheard between Kordic and Blaskic, one in Kiseljak

6 and one in Busovaca. And it may be worth, because I

7 know the time is limited, just reminding you of some of

8 the things that were said between these two people.

9 Was in any sense Kiseljak separate from or was it

10 simply integrated in the overall plan and scheme of

11 things, temporarily and unhappily for the Croats,

12 divided from Busovaca.

13 As to the particular and critical

14 conversation where Kordic says, "Let's burn

15 everything. Let's hear the howitzer roar," and making

16 his decision about Zenica. His decision to attack

17 Zenica, only if it reacts.

18 The Court will already have that in mind. In

19 the same conversation he shows an interest in Fojnica,

20 Kakanj, and Visoko.

21 And in later conversations on the same tapes,

22 he shows an interest, at page 13, in Vares; at page 22,

23 an interest in Gornji Vakuf, with the remark, amongst

24 others, "How can there be a joint command with the

25 enemy?" And if that enemy was the Muslims, what does

Page 16758

1 that tell us about his true attitude?

2 And then at page 24 of the English transcript

3 that I have, Kordic and Blaskic speaking together of

4 trucks coming from Kiseljak, and Kordic congratulating

5 Blaskic, who says, "That's aid to the brotherly people

6 of Busovaca." And Kordic saying, "Excellent. I'll

7 tell them tomorrow on Busovaca's radio."

8 Everything that was going on, and is

9 evidenced as going on, it reflects the overall joint

10 plan to which I'll return very briefly in a moment.

11 I can deal with the Cerkez arguments

12 compactly presented both in writing and today briefly.

13 All the arguments you've heard today have been

14 arguments on weight of the evidence, as I understand

15 it. Our brief has dealt with that. It's dealt with

16 the time problem, not that the problem is something

17 that can be dealt with on this indictment. Not that

18 the time issue can be dealt with on this indictment,

19 because it's a non-separable count.

20 It's worth bearing in mind that Cerkez's

21 personal presence at various locations is not

22 required. It has to be brought to mind, it's him and

23 those he commands for whom he bears responsibility.

24 And so even if it be the case that some particular

25 location is shown not to have been visited with him,

Page 16759

1 not to the point.

2 He referred to, my friend Mr. Kovacic, a

3 couple of lists produced, I think, by the BiH military

4 police, detailing offenders, several of whom are shown

5 to have been members of the Viteska Brigade, including

6 the killing of Trako and the cinema rapist.

7 The evidence we've produced or that has been

8 produced is going to show that this was an active man

9 elsewhere, is relevant going to show that he is not a

10 desk-bound commander, but that is all. He is an active

11 commander in the field.

12 And so I return to our final position, brief

13 as I have attempted to be. It's important for the

14 Chamber, perhaps, just to remind itself that this

15 starts as a widespread plan. And you can look at the

16 Tudjman meeting setting out the dual-track approach,

17 the problems with the Muslims. You can look at

18 Valenta's book, which is by no means as innocent in

19 effect as the Defence would have you believe in their

20 brief.

21 Yes, he may not have spoken in writing of

22 violence, he may not have had violence in mind. One

23 doesn't know, at the time he wrote it. But the book is

24 written at a time when people got on comparatively well

25 together. And it speaks of the compulsory movement of

Page 16760

1 a sector of the population identified by ethnicity.

2 What effect is that ever likely to have on

3 those involved? And of course to a significant extent

4 we have to look at not just what people say and do, but

5 the setting in which they do it.

6 You have asked to attend to the perceptions

7 of appearances by Mr. Kordic on the television. The

8 perceptions may have been grey. Anybody making the

9 broadcasts that were made, having the effects that

10 would be had on an ethnically identified part of the

11 community, would have known that.

12 And they don't have to go the whole hog, in

13 the vernacular, and spell out in anticipation that

14 violence was a necessary and inevitable part of what

15 was going to happen.

16 So it starts as a joint plan, which the

17 defendant, Kordic, is, in effect, one of the authors in

18 an early stage, in there with Tudjman and so on.

19 And thereafter, when there are meetings

20 organised, you will see from the documents, and we

21 needn't go through them all now, that every

22 municipality is involved; invitations to every

23 municipality, everyone summoned.

24 The plan starts as an area-wide. The Central

25 Bosnia-wide plan continues in that way, and as the

Page 16761

1 evidence with its various similar features, as between

2 one attack and another so compellingly reveals,

3 executed on an area-wide, on a Central Bosnia-wide

4 basis.

5 And for that the evidence shows there is no

6 politician more important than Kordic. No one else is

7 identified as the person who would be wielding the

8 political power.

9 No other politician is shown as having the

10 political authority at direct and discrete incidents

11 that he did.

12 And the Chamber will have in mind that, of

13 course, with the access to documents these defendants

14 may have, if documents either fully identified Kordic's

15 role, as opposed to the multiplicity of roles that his

16 titles revealed, you would have seen it, a fortiori, if

17 there was any document going to show who else lay

18 behind what happened.

19 We note that it does not appear to be the

20 case any more that the international armed conflict is

21 challenged. We draw to your respectful attention that

22 although we've reviewed this matter swiftly as we've

23 been able to, facing the Defence motion that we did

24 substantially on the basis of oral testimony, a full

25 and final analysis of this case will, of course, have

Page 16762

1 to include careful analysis of the documents. For, in

2 the case of political leadership, there is always going

3 to be a lot to be divined from and probably

4 painstakingly divined from the documents.

5 We go back to the formalities as to Annex 1.

6 Our position is as I said it was. But we would, of

7 course, ask for the position to be deferred as to

8 striking items out, because the document, although I

9 hope it's complete, hasn't been finally checked.

10 Particularly, it hasn't been checked for any entries

11 that might be supported by documents.

12 Can I help any further?

13 JUDGE MAY: No, thank you. Yes, Mr. Sayers.

14 MR. SAYERS: Very briefly, Your Honour. I'll

15 do my best to respond on the fly because these

16 arguments have not been made in writing.

17 The standard of review. There's a lot been

18 said on that. I am not going to add too much.

19 Apparently, it seems to be the Prosecution's

20 position that any evidence, any evidence at all,

21 satisfies the requirement of the reasonable Trial

22 Chamber standard that's being articulated today. A

23 mere scintilla would be enough, and thrust upon the

24 defendant the burden of going forward.

25 We submit that that's not the test. The

Page 16763

1 principle seems to be that it's enough to introduce

2 evidence that crimes occurred in a village such as

3 Rotilj or Tulica, as I have stated, and that's

4 sufficient for purposes of passing muster, but it's not

5 sufficient unless there's some proven connection with

6 Mr. Kordic. If there is some proven connection that

7 his subordinates, people over whom he had command

8 responsibility, were responsible for these crimes, and

9 there is none with respect to those two villages and,

10 we would submit, for a variety of other locations for

11 the reasons that I've previously stated.

12 With respect to the civil role that the

13 Prosecution adverted to, this is not a civil case. The

14 rights of defendants in criminal cases are not

15 applicable in a civil case. Rule 98 bis is applicable

16 to this case.

17 With respect to the motion for adjudicated

18 facts, we will respond to that in writing as directed

19 by the Trial Chamber and within the time limit that the

20 Trial Chamber has requested us to respond.

21 With respect to Mr. Kordic, once again the

22 Prosecution has indeed proved that in many locales

23 there were crimes. They've also failed to prove, with

24 respect to many locales, that there were any crimes at

25 all. But even in those locales where crimes have been

Page 16764

1 or evidence of crimes has been adduced, there is little

2 or no connection that those crimes had anything to do

3 with Mr. Kordic.

4 The claim is made, "Well, he must have had

5 power because he never disclaimed it." But the failure

6 to disclaim you had power when the question was never

7 asked does not equal the actual possession of that

8 power, and I merely refer the Court once again to the

9 three witnesses who actually did ask the question,

10 Jean-Mark Lanthier; Major Jennings, page 8995. "Are

11 you the HVO commander?" he asked Mr. Kordic. And he

12 acknowledged that Mr. Kordic said, "No." He asked the

13 question; he got the response. I'm not going to

14 belabour all of the extensive recitation of the

15 evidence that we've put in our brief where conclusions

16 were made, very hand-waving type of conclusions, well,

17 he was a man of power, he must have had some sort of

18 power. No one was able to provide any details, no

19 one. And that's not going to pass muster in a criminal

20 case, we would submit.

21 Now, Count 1, "and" means "or." No, it

22 doesn't. "And" means "and." We didn't plead the

23 count, the Prosecution did, and they -- it's been --

24 the amended indictment has been amended, obviously, and

25 all you have to do is look at paragraph 37(J) of the

Page 16765

1 amendment indictment and the word "and" is there. It

2 is a conjunctive requirement. Not a disjunctive,

3 conjunctive. And they haven't proved that there was

4 persecution throughout all of the area of the

5 municipalities adverted to in the amended indictment.

6 It may assist the Trial Chamber, I didn't

7 have my copy of the amended indictment with me when the

8 question arose this morning, but the actual

9 municipalities that are specifically identified in the

10 amended indictment are identified in paragraph 5, Your

11 Honours. And as I said, as to about 24 of those

12 municipalities, there is no evidence. And we are told

13 today, for example, that there are areas that are

14 outside the indictment, such as Mostar, where terrible

15 things were happening too. Well, as you can see from

16 paragraph 5, Mostar is actually in the indictment. But

17 even if there were awful things happening in Mostar,

18 there is absolutely no evidence that they had anything

19 to do with Mr. Kordic, and the same is true with

20 respect to most of the other information.

21 Now, with respect to the persecution, the

22 generalised persecution claims made about Mr. Kordic

23 and the speeches that he made very early on, in

24 September of 1992, December of 1991, consider this Your

25 Honours: Consider the huge amount of videotape

Page 16766

1 evidence that's been provided to you and transcript

2 evidence by the Prosecution. Where also the huge

3 amount of print media exhibits that have been

4 introduced by the Prosecution, there is not one that

5 they can point to, not one videotape or print media

6 article where the Prosecution can say that Mr. Kordic

7 is making ethnically disparaging comments,

8 rabble-rousing, table pounding, foaming at the mouth,

9 inciting violence. There simply isn't one. The

10 evidence is before Your Honours to see for yourself and

11 assess for yourselves what he actually said as opposed

12 to fractured recollections years later of what he

13 supposedly said, and the most vivid example was the one

14 mentioned by Mr. Smith. It's Witness AQ.

15 Witness AQ was brought to this Trial Chamber

16 for one purpose, and that is to say there were two

17 speeches given by Kordic supposedly on the night of

18 April 15th. One that was in Exhibit Z665, which is a

19 videotape that she was showed, and the another, a

20 different speech for which there is no videotape, where

21 extreme comments were made, where an incitement of

22 violence supposedly occurred.

23 And I'm sure the Trial Chamber recalls, as I

24 do, that many attempts were made to persuade Witness AQ

25 that the video statement was different from the speech

Page 16767

1 that she remembered, and she said no, it's the same

2 speech. And indeed the Presiding Judge specifically

3 asked that question and she confirmed the information;

4 same speech.

5 So we would just refer the Court to the

6 videotapes and the newspaper articles, the print media

7 articles. Those are the best evidence of what the man

8 said. He's shown on videotape saying what he says and

9 you can assess it yourself. There is simply nothing of

10 a discriminatory, persecutory nature there at all.

11 Now, with respect to the particular villages

12 mentioned by the Prosecution, it's refreshing to find

13 that Travnik and Fojnica are out of the villages as to

14 which specific crimes are mentioned. With respect to

15 Rotilj and Tulica, as I say, no connection with Dario

16 Kordic. With respect to Zepce, Your Honours,

17 absolutely no connection with Dario Kordic.

18 Notwithstanding the reference to the testimony of

19 Colonel Stutt, Witness AD, and Sir Martin Garrod. None

20 of those witnesses testified that Mr. Kordic had the

21 slightest power or influence in Zepce, and indeed

22 Colonel Stutt testified to precisely the reverse.

23 There is quite simply no evidence that Mr. Kordic had

24 influence in Zepce or let alone that his subordinates

25 or people who were subordinates to him in some

Page 16768

1 quasi-military or civilian sense or any people for whom

2 he might be held to have superior responsibility

3 committed the crimes in Zepce.

4 With respect to the Zenica shelling, you can

5 read our submission on that. I have nothing to add to

6 it.

7 With respect to Divjak, I think that there's

8 a concession that Count 43 has to be dismissed because

9 there is no evidence of any destruction of institutions

10 dedicated to religion there.

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 The evidence is, I believe, and I stand to be

20 corrected by the Trial Chamber, but there were only

21 four Muslims in the Busovaca government, none of them

22 were required to sign loyalty oaths. There is no

23 evidence that any Muslim representative of the Busovaca

24 government was ever required to sign a loyalty oath or

25 did so.

Page 16769

1 Now, Witness M, he didn't lose his job. He

2 didn't sign a loyalty job. He continued on in his

3 job. I think Nijaz Neslanovic testified she continued

4 on in her job. Witness O, his job was eliminated but

5 he wasn't throw into penury, he took up his old job at

6 the factory --

7 THE INTERPRETER: Could you please slow down?

8 MR. SAYERS: -- north-west of Busovaca in the

9 town. He continued to work; he continued to get paid.

10 He wasn't required to sign any loyalty oaths or

11 anything like that.

12 With respect to the allegations of reverse

13 ethnic cleansing, I have to confess there I greet those

14 with some skepticism. It seems to be the proposition

15 that whenever Bosnian Muslims are pushed out of their

16 homes that's the fault of the Croats. Whenever Bosnian

17 Croats are pushed out of their homes that's the fault

18 of the Bosnian Croats too. We would submit that the

19 evidence simply does not sustain that charge of reverse

20 ethnic cleansing and the ECMM documents pretty much

21 affirmatively prove it.

22 With respect to the Ahmici report, Your

23 Honour, I'm not going to say anything other than that.

24 The Prosecution says, "Well, it's a cover-up." But not

25 by Kordic. It wasn't Kordic that introduced this

Page 16770

1 document into evidence, it was the Prosecution. There

2 is no evidence that Kordic had any role in any cover-up

3 and there is no contention that the May the 10th, 1993

4 order issued by Colonel Blaskic was in any way dummied

5 up or a phoney order.

6 With respect to Stupni Do, I have to say

7 there is no evidence of Mr. Kordic's influence in

8 Stupni Do. In fact, the Court will no doubt recall

9 Witness AD's graphic testimony to the effect that

10 Mr. Kordic appeared sometimes to be out of touch with

11 things that were even going on in the Busovaca-Vitez

12 pocket, a piece of testimony that was actually

13 confirmed by Colonel Stutt, who said that Mr. Kordic

14 was more for the big picture type of things and really

15 didn't get involved in the nitty-gritty operational

16 matters of the type that Colonel Blaskic would get

17 involved in.

18 He also testified rather graphically to the

19 extensive geographic separation between Vares and the

20 Vitez-Busovaca pocket, and there is no evidence that

21 Mr. Kordic was ever seen in Vares at any time in 1993,

22 and the reliance on orders signed in 1992, Your Honour,

23 I think is rather unconvincing.

24 THE INTERPRETER: Can the counsel please slow

25 down a little bit. Thank you.

Page 16771

1 MR. SAYERS: With respect to the inferences

2 that the Prosecution seeks to compress out of the

3 dubious testimony of Witness AO, even if it weren't --

4 I have about three more minutes, Your Honour.

5 With respect to Witness AO, the inferences

6 that the Prosecution seeks to extrude from his

7 testimony are simply not there.

8 Even if you take everything that this witness

9 said as true, which we would submit would be absolutely

10 unjustified, but even if you could assume that this

11 witness were worthy of any credit, he doesn't establish

12 to whom Rajic spoke when he went to the communications

13 command centre, as he says.

14 He did not say that Rajic spoke to Kordic.

15 He merely mentioned that either the name of Kordic or

16 Petkovic cropped up or was mentioned in some undefined

17 context after he returned from the communications

18 centre. And that's it. That's as good as it gets.

19 There is no contention that Rajic was in

20 communication with Kordic. And the best evidence, Your

21 Honour, of who commanded whom is just 11 days before

22 Stupni Do the ECMM document, referred to in our brief,

23 actually shows Kordic [sic] issuing an order to Rajic

24 relating to road communications and improvements. And

25 that's in the contemporaneously-generated ECMM

Page 16772

1 documents. And that's, as you would expect, in the

2 military chain of command in the ordinary course.

3 With respect to Kiseljak -- I'm sorry, the

4 transcript says the evidence actually shows Kordic

5 issuing an order to Rajic. It should say Blaskic.

6 That's what I thought I said. Blaskic issuing an order

7 to Rajic relating to road improvements. Apparently, he

8 had refused to make some road improvements that

9 UNPROFOR had requested, and Blaskic intervened and

10 directed him to do precisely that. That was on October

11 12th, just a few days before Stupni Do.

12 Kiseljak, I've made my points with respect to

13 that.

14 With respect to the international armed

15 conflict comment made by the Prosecution, that it

16 doesn't appear to be challenged, it absolutely is

17 challenged. And we will respond within, once again,

18 the time period that was required by the Trial

19 Chamber. I think next week and next Friday is the date

20 that the Trial Chamber directed us to respond. And we

21 will.

22 Let me just finish up by saying that the

23 Presiding Judge made a comment early on in this case

24 saying, "I hope this isn't going to be a case about

25 politics." And it has largely turned out to be a case

Page 16773

1 about politics, unfortunately. But institutions are

2 not on trial in this case. President Tudjman, now

3 deceased, is not on trial in this case. Mr. Kordic

4 is. And it's what he said and what he did that the

5 Court should focus on.

6 Now, the Prosecution has, as we've said,

7 taken its best shot. They have had 11 months to do

8 so. I think the Court has been extraordinarily

9 generous in providing 11 months and 150 witnesses,

10 including transcript and affidavit witnesses, for them

11 to put on evidence of some crime committed by

12 Mr. Kordic or some connection that he has some superior

13 responsibility that he has.

14 They have introduced not merely a mountain of

15 documents, but a mountain range of documents, in the

16 thousands, I believe. This Prosecution -- this

17 criminal proceeding has been five, six years in the

18 making, Your Honours. And it's time now for the Court

19 to take a look at the evidence. And we would suggest

20 that, first of all, there's been no proof beyond a

21 reasonable doubt of any criminal culpability on

22 Mr. Kordic's part. And, secondly, no reasonable Trial

23 Chamber could conclude that based upon this evidence

24 there is sufficient evidence to convict Mr. Kordic of

25 any of the specific crimes alleged in the amended

Page 16774

1 indictment, even where there is some evidence, as

2 opposed to those municipalities where there is none.

3 And so we merely ask the Court to apply Rule

4 98 bis, as did the Trial Chamber in Jelisic, and reach

5 the appropriate decision, which is an acquittal.

6 Thank you very much.

7 MR. KOVACIC: Your Honour, I shall be really

8 very, very brief. It is so late, and of course there

9 is not too much sense to comment on all comments of my

10 learned colleague. But let me proceed in Croatian;

11 it's much easier for me.

12 [Interpretation] We have the same confusion,

13 the same time. There are no subordinate persons to

14 Cerkez in 1992, and I am giving a very rough definition

15 of this type.

16 Throughout these proceedings in the

17 Prosecution case, no argument was presented for Count

18 2. Nothing was said about his participation in it,

19 personally. And he cannot be charged in his superior

20 capacity until he was appointed the commander of the

21 brigade. That is as far as Busovaca is concerned.

22 Cerkez became the Stjepan Tomasevic Brigade

23 commander and was physically in Novi Travnik. He was

24 in the staff. He was not a commander. He was on Mount

25 Vlasic. And there are no charges that he did anything

Page 16775

1 in Novi Travnik. Why? Again, we are facing a problem

2 of time. Because nothing happened in Novi Travnik that

3 is incriminating.

4 After October 1992, a truce was reached and a

5 status quo was established. At the very end of 1992,

6 Cerkez is in Novi Travnik and then nothing was going on

7 there. We heard nothing. We heard at a very end that

8 a witness said that his brother was killed there. And

9 it was clearly a common crime. It had nothing to do

10 with the HVO soldiers.

11 This is why I insist so much to define the

12 territory, Busovaca, Novi Travnik, Vitez. In Vitez, as

13 is since -- after April 1993, that is a different

14 situation, and we can focus on that.

15 I want to point out one more thing. Perhaps

16 I was not clear enough, and it is my fault. The lists

17 of war criminals produced by witness Rebihic, which I

18 believe are important, I did not mention in order to

19 say that Cerkez is not guilty because he is not

20 mentioned in any of these lists. It is something

21 else. Cerkez, obviously, was not personally

22 responsible, according to the BiH intelligence sources,

23 that is the witness Rebihic. And Mr. Rebihic had

24 Mr. Cerkez before his eyes, so to speak, for a very

25 long time.

Page 16776

1 And Witness Rebihic did not compile his list

2 on a legal basis. He did not have any legal basis in

3 mind; having in mind a theory of superior

4 responsibility. He was a practically illiterate man.

5 It would have been impossible. So I don't think that

6 anybody should convince anybody about that.

7 Now, whether he put -- somebody else was

8 involved in this, that is a separate matter. I think

9 that he was just trying to hunt down certain men.

10 At that time, the Statute of the Tribunal did

11 not exist. Even if it did, he would not have known

12 about it also. The murder in the hotel, the

13 Vukadinovic case, that was again May 1992. Vukadinovic

14 was not his man. He was part of the military police,

15 the alleged killer. This was the man who was on guard

16 duty at that time. Then we also have the municipal

17 headquarters in Vitez, the head of this -- the staff is

18 Marijan Skopljak. The documents proved this.

19 So, if in 1992 anybody committed any crime in

20 Vitez, this cannot be ascribed to Mario Cerkez, because

21 he was not in a position of authority at that time. He

22 is only responsible for himself, personally. There is

23 no evidence as to his involvement in any crime

24 throughout 1992; that is, until he became the commander

25 of Stjepan Tomasevic Brigade, which was in late

Page 16777

1 February 1993. And later on he became the commander of

2 the Vitez Brigade.

3 Only from that moment on can he be

4 potentially responsible, liable, but first we have to

5 determine that some subordinate of his committed

6 something.

7 JUDGE BENNOUNA: [Interpretation] Excuse me,

8 Mr. Kovacic. What are you asking for, what is it

9 exactly? As regards the issue that has been submitted

10 to us, as regards the application of Rule 98 bis, what

11 is it exactly that you are asking for? What are you

12 asking this Trial Chamber to do? Are you asking us not

13 to look at each and every act committed until February

14 of 1993? I am not sure what it is you are asking for,

15 in terms of Rule 98 bis.

16 In practical terms, what does what you are

17 saying have to do with the application of Rule 98 bis?

18 Please explain yourself.

19 MR. KOVACIC: [Interpretation] My apologies.

20 I am trying to be very brief, and obviously I am making

21 mistakes here.

22 Your Honours, my submission is, and I believe

23 that a fair interpretation of 98 bis, I believe that

24 the Trial Chamber has the right to dismiss even parts

25 of charges within individual charges. I am going a

Page 16778

1 step further, and I submit that the Trial Chamber

2 specifically as an example in the point 2, persecution,

3 has the right to dismiss charges for the period from

4 April 1992 to April 1993.

5 JUDGE BENNOUNA: [Interpretation] Yes. Yes,

6 Mr. Kovacic. But doesn't it all amount to the

7 following: You want us to modify again the

8 indictment. Isn't it what you are asking for? Because

9 Article -- sorry, Rule 98 bis asks the Judges to make

10 sure whether or not it is possible for them to enter a

11 judgement of acquittal. And they are trying to see

12 whether or not the evidence is sufficient for them to

13 enter a judgement of acquittal. And you are, in fact,

14 I think, asking if part of the indictment can be done

15 away with, deleted. Aren't you asking for a further

16 amendment of the indictment?

17 MR. KOVACIC: [Interpretation] Your Honour, I

18 am not asking for an amendment of the indictment,

19 because that would reverse the whole process and the

20 confirmation of the indictment, so on and so forth.

21 I am requesting that the Trial Chamber rule

22 on a part of a count, at least, because at this time

23 the Trial Chamber can dismiss the entire count. But --

24 and if a whole count can be dismissed at this point, or

25 acquit on a particular count, then the Trial Chamber

Page 16779

1 can certainly acquit on a part of a count, in which

2 case the whole indictment would be narrowed. And the

3 acquittal can be effected on the parts which did not

4 rise to the standard of primae facie.

5 And, in our submission, and let me just stay

6 with this example, Count 2, that no evidence was

7 offered which would lead to consideration of guilt on

8 Count 2, as in reference to the Busovaca and Novi

9 Travnik municipalities, because no evidence has been

10 offered that would rise above the standard of primae

11 facie. And this is what we believe is within the right

12 of the Trial Chamber to do.

13 Thank you.

14 [Trial Chamber confers]

15 JUDGE MAY: We'll consider these matters and

16 give our decision next week.

17 MR. SAYERS: May I just raise one very brief

18 issue, Your Honour.

19 There is an ex parte in camera motion that is

20 pending before the Court, in the event that the Court

21 reaches a decision adverse from that, which we are

22 urging today has some urgency. And there are

23 outstanding applications that have been made that

24 relate to the same matters, which we would appreciate a

25 decision on, if that's possible.

Page 16780

1 JUDGE MAY: Very well.

2 MR. SAYERS: Thank you.

3 --- Whereupon the Motion Hearing

4 adjourned at 5.05 p.m.






















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