Tribunal Criminal Tribunal for the Former Yugoslavia

Page 28381

1 Friday, 15 December 2000

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.37 a.m.

5 JUDGE MAY: Mr. Smith, if it's for you to begin, you and your

6 colleagues have, I think, until the break at 11.00.

7 MR. SMITH: Yes, Your Honour. We plan to take five minutes

8 obviously in rejoinder, an hour and 15 minutes or so now, and with leave

9 of the Trial Chamber, the Cerkez Defence has agreed to cede 15 minutes to

10 us during our initial presentation if we request them to do that, if that

11 meets your approval.

12 JUDGE MAY: Yes.

13 MR. SMITH: Thank you. Let me take you back to where I was in the

14 argument on persecution, Your Honours. Of the two methods for proving the

15 broad persecution count as pled, the municipality-by-municipality approach

16 was not really chosen and there's no evidence in any case on 22

17 municipalities and not enough evidence on both persecution and

18 participation as there would have to be in the others and in Zenica.

19 I was thus discussing the general theory of persecution that the

20 Prosecution has advanced, and had noted that there is no participation at

21 the highest levels of government of the Bosnian Croat institutions and

22 thus it fails on that ground alone and I was discussing the concept of

23 persecution and whether persecution had been proven.

24 There were three pillars. The first annexation, a question of

25 politics. The second, a monoethnic discriminatory set of institutions

Page 28382

1 disproved by the testimony of the senior members of those institutions, of

2 the Prosecution's own expert, and the documents. Thus, I was just

3 beginning to discuss the last pillar at the end of the session and that is

4 where I shall pick up.

5 That persecution, that pillar involves the nature of the civil war

6 in Central Bosnia, and I have two points. First, this civil war was not,

7 in its totality, a unilateral campaign of persecution. Second, there were

8 ad hoc atrocities by each side during this civil war but they do not

9 constitute persecution either.

10 Let me take up the first point. That this was a civil war in

11 Central Bosnia is precisely what Lieutenant-Colonel Stewart,

12 Lieutenant-General Sir Roderick Cordy-Simpson, and the PWP milinfosum

13 said. And the references, Your Honour, in turn, are D153/1, in "Broken

14 Lives" at 318 to 319, the General at transcript 6268, lines 4 to 25, and

15 the milinfosum is Exhibit D194/1.

16 We submit that the vast majority of the fighting in this civil war

17 was an actual military campaign other than the separate and isolated

18 atrocities on both sides like Ahmici, like Stupni Do on the Croat side,

19 and like a number of Muslim atrocities against the Bosnian Croat community

20 like Dusina, Miletici, Maljina, Cukle, Bikosi and Uzdol.

21 My second point, Ahmici and Stupni Do are different and they

22 cannot, themselves, constitute --

23 JUDGE ROBINSON: Mr. Smith, before you go on to that, you said

24 that the persecution was not a unilateral campaign, was not in its

25 totality a unilateral campaign. Are you thereby implying that it was

Page 28383

1 something that was engaged in by both sides?

2 MR. SMITH: I am saying that there was a civil war engaged in by

3 both sides. Our position, as you will see in the briefs, Your Honours, is

4 that neither side was engaged in persecution, but that if there were

5 persecution -- if the events in the valley were sufficiently widespread

6 and systematic, the discriminatory events, not the fighting between two

7 ethnic groups that happened to be having difficulties or differences and

8 engaged in a civil war, if those discriminatory acts were construed as

9 persecution, then it is our submission, and we have documented it at

10 length in the brief, that one is driven to the conclusion that it was the

11 Bosnian Muslims persecuting the Croats rather than vice versa.

12 JUDGE ROBINSON: I mention that because to the extent that there's

13 evidence that the persecution was carried out by both sides, that itself

14 would not aid your argument unless you are saying that the persecution

15 committed by the Croats was defensive.

16 MR. SMITH: Your Honour, I am arguing, and we have argued from the

17 beginning, that the Croat actions were defensive. I'm not arguing that

18 Croat actions were persecutory, but we are arguing that their actions were

19 defensive and reactive.

20 But I would make an additional point. As my colleague Mr. Sayers

21 has said, we are not making a tu quoque argument. We are looking at the

22 facts to see whether one can see discrimination and persecution in the

23 whole list of events charged in the -- what's called the crime base, which

24 covers most of the significant fighting, other than the strictly Muslim

25 offensives. And our argument is, on those facts, that it adds up to, A,

Page 28384

1 neither side persecuting each other. This is a civil war. But if there

2 are persecutory acts and they're widespread and systemic enough under a

3 plan and policy to constitute persecution, then we're driven to the

4 conclusion that it is going in the other direction. And I've argued that

5 there is no, at the institutional level, generally, no plan and policy of

6 persecution by the Bosnian Croat institutions.

7 JUDGE MAY: But even if that is so, do you accept that there was a

8 takeover, as the Prosecution alleged, in a number of municipalities in the

9 summer of 1992 by the HVO? Certainly it's alleged in Busovaca, Vitez,

10 Vares, Kiseljak. What the Prosecution say is that throughout Central

11 Bosnia, first of all there was a takeover by the HVO, then followed by

12 persecution of the Bosnian Muslim population in those municipalities.

13 Now, what is your answer to that? There was evidence that there was a

14 takeover.

15 MR. SMITH: Your Honour, my answer is that in Busovaca there is

16 evidence that there was an order issued during a crisis and that the

17 Crisis Committee was superceded by an HVO government, in effect, at the

18 municipal level, but that when you read our brief and you listen to my

19 colleague Mr. Naumovski and you understand the facts that followed during

20 the remainder of 1992 and the efforts to include the Muslims and to work

21 with the Muslims, that the original order was not a planned act or part of

22 a policy of discrimination and that there was not that discrimination in

23 the way that government operated during the remainder of 1992.

24 And as for the other municipalities, while we have not argued it

25 in detail in the brief, we believe the facts are roughly similar and that

Page 28385

1 nothing different happened in those municipalities than happened in the

2 municipalities in which the two groups pulled apart and the Muslims were

3 running the government and the Croats were excluded. These two sides did

4 not trust each other at this time, and that distrust was fomented, for

5 obvious tactical and strategic reasons, by the Bosnian Serbs. That, in

6 our submission, is a question of politics. It is not a question of

7 criminal liability under the law of persecution.

8 JUDGE ROBINSON: There's a trend in the case law of the Tribunal,

9 not necessarily one with which I agree, that would seem to suggest that

10 you can almost infer persecution from the existence of other crimes, grave

11 breaches and war crimes. So that if you have evidence of grave breaches,

12 of deportation, if you have evidence of war crimes, you can almost infer

13 persecution, the discriminatory element, from those crimes.

14 MR. SMITH: Your Honour, the newly developing crime of persecution

15 as an international humanitarian crime needs careful and sensitive

16 development, in our judgement. Criminal law, in general, is a blunt

17 instrument. In the United States we have laws, civil laws, against

18 discrimination. Many countries do not.

19 There can, in our judgement, be, and should be, no inference of

20 discrimination, for example, just because of participation on either side

21 in a civil war that happens to be taking place between members of

22 different ethnic groups, racial groups, religious groups or, bear in mind,

23 political groups.

24 The term "persecution" is a very, as defined in the evolving law,

25 potentially enormously elastic concept. It's not as confined, for

Page 28386

1 example, as the law of genocide, which has a very high threshold. And it

2 is our submission that as it is developed by the Judges, because it

3 touches on civil liberties in the conduct that it attempts to

4 supervise - the rights of free speech, the rights of political

5 association - and because it can be used by majority groups against

6 minority groups in situations of civil war, that it is an enormously

7 important -- it is enormously important to understand its potential for

8 abuse and it must be cabined carefully. Now, we also -- we do not agree

9 with the assertion that anything other than a statutory crime under this

10 Statute should be the basis for discriminatory act, but we've read the

11 same cases and we understand the way the law is being developed.

12 The more broadly one reads the nexus requirement and the more

13 broadly one reads the geographic and temporal extent of international

14 armed conflict as a concept, the more behaviour in a country one covers in

15 terms of outlawing, at the international level, as a criminal matter,

16 discrimination, whether it's -- there are suggestions that workplace

17 discrimination, the firing of people, there are suggestions in this case,

18 in the pleadings, in the indictment, that what in our country would be

19 common workplace discrimination amounts to an international crime when it

20 takes place in the context of a situation involving international armed

21 conflict.

22 JUDGE MAY: But there are much more serious allegations, of

23 course, in this count than that.

24 MR. SMITH: Absolutely right, Your Honour. I apologise. I was

25 attempting to respond to the thrust of Judge Robinson's question.

Page 28387

1 JUDGE BENNOUNA: [Interpretation] Excuse me, but to round off this

2 matter, you say that for you this type of persecution could happen only in

3 an international conflict if I understood you well; is that what you

4 said? Did I understand you right that, to your mind, the persecution

5 could happen only in an international conflict?

6 MR. SMITH: As a criminal matter under this Statute, I believe the

7 Tribunal's jurisdiction is limited to international conflicts and -- armed

8 conflicts, rather, and on some grounds, international armed conflicts. I

9 meant to say and if I did not, I apologise, I meant to focus on armed

10 conflict and international armed conflict.

11 Does that answer your question, Your Honour?

12 JUDGE BENNOUNA: [Interpretation] Not quite, because the

13 persecution that you speak about as a crime would fall under the category

14 of crimes against humanity.

15 MR. SMITH: Yes. I take your point, Your Honour. I take your

16 point.

17 JUDGE BENNOUNA: [Interpretation] You know well that for crimes

18 against humanity, it suffices that it happens in an armed conflict,

19 whether it be international or noninternational.

20 MR. SMITH: Absolutely right, Your Honour. And the broader the

21 concept, the broader the scope given to it jurisdictionally, the more care

22 that must be exercised in the care of its definition and of its

23 application. That's the thrust of what I'm trying to say.

24 JUDGE BENNOUNA: [Interpretation] Thank you, Mr. Smith.

25 MR. SMITH: In any case, as to Ahmici and Stupni Do, we submit

Page 28388

1 that those two events are independent of each other. They are widely

2 separated in time and space, submitted by different troops with different

3 local commanders, and that they cannot constitute either widespread or

4 systematic persecution.

5 Let me turn to discriminatory intent. Discriminatory intent is

6 not a misleading phrase. It is the applicable legal test for mens rea

7 here. Witness after witness has testified that Mr. Kordic has no

8 prejudice towards Muslims and would not have persecuted them. The same is

9 true as to testimony on his character, in many cases by his Muslim

10 colleagues and neighbours.

11 Mr. Kordic's speeches in those public utterances, the things he

12 said are much milder than the virulent types of remarks by some people

13 that were judged to be, even then, politically protected free speech and

14 not criminal in the World War II trials, and I cite to page 269 of our

15 brief where we discuss those cases. As to Mr. Kordic's conduct, we submit

16 that he did not do the things charged in counts 3 to 43. His conduct

17 during the prereferendum period constitutes legitimate political action.

18 His participation in the Bosnian Croat institutions does not

19 display discriminatory intent both because, first, those institutions did

20 not discriminate and second, he did not participate at the highest rank.

21 Third, as I already articulated, mere participation in a civil war which

22 happens to be between different ethnic groups, religious groups, and

23 whatnot, cannot, in itself, give rise to an inference of discriminatory

24 intent. And finally, Mr. Kordic took no part in the two major atrocities

25 on which this trial is focused.

Page 28389

1 Let me conclude. Out of the confusion that has grown around the

2 events in the Lasva Valley over the years, the reality has finally begun

3 to surface in the volumes of evidence in this case. The real facts have

4 emerged day by day, witness by witness, and document after document. The

5 reality is that the Bosnian Croat community in Central Bosnia fought a

6 dogged defensive battle to save its very life. There were ad hoc

7 atrocities on both sides but overall, 100.000 or more Bosnian Croats were

8 ousted from their homes in most of Central Bosnia by Muslim offensives and

9 crushed into four and then three small pockets in the bottoms of valleys

10 with the Muslims looking down from the hills around.

11 The Croats of Central Bosnia were surrounded and outnumbered

12 almost 8:1. Indeed, it was the Croats of Central Bosnia, not the Muslims,

13 in that conflict, in that location, that had nowhere to go. The Bosnian

14 Croat community hung on by its fingernails throughout the long, hard

15 winter of 1993-1994 and until the Muslims finally agreed to a cease-fire

16 in the end of February 1994.

17 If, Your Honours, if, there were persecution in Central Bosnia, we

18 submit that it was not the minority Bosnian Croats persecuting the

19 Muslims, rather, the numbers indicate the contrary is true. That is the

20 history. That is the reality that history will record. Thank you, Your

21 Honours.

22 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honours. I

23 apologise with having some technical difficulties.

24 Your Honours, as you know, for 238 days and no less, evidence was

25 produced before you. There were 242 live witnesses here, if my

Page 28390

1 calculations are good, and very many witness statements from other cases

2 were adduced and dozens of affidavits were also produced. And when one

3 analyses all those statements and testimony, we think that with regard to

4 Mr. Kordic's role and post, the only conclusion one can draw is that he

5 was a politician and that he had neither military nor executive

6 administrative powers.

7 Of course when you analyse his activities, you will need to bear

8 in mind, and we are confident that you will take note of that, that

9 Mr. Kordic was a politician who was not in a position to take strategic

10 major decisions for the Croat people in Central Bosnia, nor was he one of

11 the circle of politicians and men who discharged the highest officers in

12 the Croat Community, that is Croat Republic Herceg-Bosna.

13 I should only like to remind that it was Witness DJ, DK, Srecko

14 Vucina, Zoran Buntic spoke about that, Jure Palavra in his affidavit and a

15 score of others. Therefore in our mind, Mr. Kordic did not discharge

16 political functions of the highest rank, nor did he discharge

17 administrative offices, that is, offices which are normally, as a rule,

18 discharged by members of the government. Because, incidentally, this duty

19 of the vice-prime minister for Central Bosnia at that time in the HVO

20 government was carried out by Mr. Anto Valenta, of course. When you

21 assess Mr. Kordic's activity you will no doubt take note also of the

22 circumstances under which he acted in especially 1993, and in the Lasva

23 Valley where Mr. Kordic lived and worked with his family throughout the

24 war.

25 A great deal was said that Mr. Kordic had some special facilities

Page 28391

1 where he worked, and then terms such as bunker and other hidden premises

2 were mentioned. But I must say that it is common knowledge, and that is

3 the gist of Mr. Kordic's activities that he always acted absolutely

4 publicly. He worked with people and among the people, and it is

5 absolutely incorrect that he did anything surreptitiously, on the sly or

6 that one could not guess at his intents.

7 Just a small picture, for instance, Nesiha Neslanovic, an

8 inhabitant of Busovaca, met Mr. Kordic in the street and asked him to help

9 with the organisation of the transport of her pregnant friend to Zenica.

10 This is just a small fragment of life which shows that one could approach

11 Mr. Kordic in the street and people knew that and of course used it.

12 Mr. Kordic worked, as I said, amongst the people. He shared their

13 problems and their plight during the wartime hardships. He marked the

14 church holidays. A few -- sometime ago, Drago Franjes from Vitez was here

15 and he told us that the hardest times during very fierce defensive against

16 Central Bosnia, Mr. Kordic came to attend the midnight mass in the church

17 in Vitez exposing his life to risk because he wand wanted to share those

18 moments with believers who are celebrating that day.

19 Perhaps one can better see the activity of Mr. Kordic and the

20 public character of his activities through the course of public press

21 conferences that he participated in. Those press conferences, which were

22 regular, Mr. Tihomir Blaskic as the commander of the Operative Zone would

23 address matters that were military, the situation on the front lines and

24 so on and so forth and Mr. Kordic would then address matters falling

25 within his field of operation; that is, humanitarian matters, positions of

Page 28392

1 the International Community, proposals of the International Community and

2 there were many of those and so an and so forth.

3 I have to ask the Court to analyse very carefully a number of

4 exhibits whose authenticity is challenged. By this I mean in the first

5 place, those documents where the sources of that information are not

6 known, whose authors are not known and so on and so forth because we have

7 reason to believe that the contents of those documents for instance,

8 Z1388.4 [sic] and Z1306.1 are simply part of politicing games which,

9 unfortunately, have not ceased to this day. I believe that it is the duty

10 of the Defence to tell this Court the following.

11 For several years now, there has been -- there is a rather

12 intensive campaign against Mr. Kordic in a part of the Croatian press.

13 JUDGE MAY: Mr. Naumovski, what you are confined to is the

14 evidence. You can't give evidence yourself. The time for that is now

15 over, and the place for it is the witness stand.

16 Now, what you may do, of course, and what you're here to do is to

17 give us your submissions upon the evidence as it was presented in Court.

18 I would be grateful if you'd bear that in mind, please.

19 MR. NAUMOVSKI: [Interpretation] Thank you, Your Honours. I will

20 do my best to comply with your instructions, and that is what I intended

21 to do. But why did I mention this? Because some pieces mentioned in

22 those newspaper articles derived from those same sources as the documents

23 of secret services, from which had been adduced and admitted and that

24 is -- I should like to ask that all the documents whose authenticity has

25 not been proved be tackled with utmost attention.

Page 28393

1 And just one more thing and then I will move on to Busovaca. We

2 have reason to believe, and we are very worried about that. When I say

3 we, I mean the whole Defence team of Mr. Kordic that there is an evident

4 flagrant conspiracy at work not only against this august Court and this is

5 very serious for us. Because of Mr. Kordic in person and perhaps it

6 involves not only some of the Defence counsel from other cases, but

7 possibly also the officials of the Republic of Croatia. So that is the

8 additional reasons for which I ask kindly the Court to very carefully

9 consider all the exhibits adduced in this case.

10 And now I shall like to move on to the territory of Busovaca,

11 where Mr. Kordic lived and worked all that time. Although I have prepared

12 in detail about the area of Busovaca, because you have already heard a

13 great deal, it is a municipality which had some -- a population of some

14 19.000 at the time of the last census in 1991. We also heard that the

15 Croats and Muslims, that is, the two leading parties, the Croat Democratic

16 Community and the party for -- union -- the Croat Democratic Union, excuse

17 me, and the Party for Democratic Action - and that I think was the only

18 such case in Bosnia-Herzegovina at the time - had struck a pre-election

19 coalition and jointly set up the government. Mr. Kordic, after this joint

20 government was formed, became the secretary for national defence, and that

21 is a civilian office which was part of the government, if I may call it

22 that, that is, the municipal government.

23 I do not want to speak too much about the beginnings of

24 misunderstandings between Croats and Muslims either in Bosnia-Herzegovina

25 broadly or, in particular, in the territory of Busovaca. But whatever

Page 28394

1 options might have been discussed at various meetings - that was mentioned

2 here yesterday - what is important for us to say is that Mr. Kordic,

3 together with his family, friends, and other members of the Croat

4 Democratic Union in Busovaca, conduct -- encouraged -- carried out

5 promotional drives for the Croats to come out and vote in the referendum,

6 and we adduced this document.

7 Where does a higher degree of misunderstandings between Croats and

8 Muslims in Busovaca begin? It begins with the pulling out of the JNA from

9 its barracks in the territory of Busovaca. It is beyond doubt, and we

10 admit that, that the Croats and Muslims agreed to distribute the

11 ammunitions and weapons which the JNA kept in several places within the

12 territory of Busovaca on the 50/50 per cent basis. An agreement about two

13 barracks was concluded rather quickly. One of them was the barracks in

14 the town of Busovaca, which went to the HVO, and the military silo at

15 Kacuni, which went to the Territorial Defence. It was also concluded that

16 it was necessary for all the armaments which were in the third barracks at

17 Kaonik to be split into two parts.

18 And to cut it short, we believe that it was only the Territorial

19 Defence, that is, members of the Territorial Defence, bear responsibility

20 for the breaking of the agreement on the distribution of weapons in

21 Kaonik. Why? Because that agreement had been struck at the local level,

22 that is, within the municipality of Busovaca, and the two sides had

23 designated two men of high renown to engage in this. It was Florijan

24 Glavocevic on the Croat side and, on the Muslim side, Husein Hadzimeljic,

25 another eminent citizen. However, Dzemal Merdan got embroiled in all

Page 28395

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Page 28396

1 this, and we heard testimony to this effect, and Zoran Maric, and there

2 was Milorad Jovic's affidavit, who had seen Dzemal Merdan personally on

3 the spot. All testify to this. And then there was an armed incident when

4 two soldiers were injured, I think, one Croat and one Muslim. Zoran

5 Maric, Niko Grubesic testified to these facts before Your Honours.

6 But perhaps I should also mention a statement in an affidavit, an

7 affidavit by Abid Hodzic, an eminent Sarajevo citizen and a Croat of

8 Muslim faith, who explicitly stated that, pursuant to instructions of the

9 then-Minister of the Interior, went to the territory of Busovaca to find

10 the facts. And he was then told, to cut a long story short and merely to

11 refer to his affidavit, when he spoke to the Muslim side, the Muslims then

12 told him that they were quite aware that they were to blame for the

13 incident and that they were the ones who had broken the agreement on the

14 distribution of armaments because they thought they were in greater need

15 of those weapons than Croats. And this is the whole truth.

16 And it is in this light, in the light of that incident, that a

17 break of the agreement -- it is in that light that one has to view the

18 document Z100 and understand the circumstances under which the incident

19 happened. The document speaks for itself. But one should also bear in

20 mind the testimony of Witness Zoran Maric, who testified before this Court

21 and who said that that document was the fruit of a collective work of the

22 Croat leadership in Busovaca at the time. That document was signed by the

23 then-Commander of the Municipal Staff, Ivo Brnada, and co-signed -- and it

24 was co-signed by Dario Kordic, who at that time already was a high-ranking

25 Croat politician in the municipality of Busovaca, and it merely added

Page 28397

1 weight to that document, as attested to by various witnesses.

2 Yesterday a number of offices held by Mr. Kordic were presented to

3 us and it was put to us. But I wish to tell the Court that this is true

4 only in part. Because yes, indeed, Mr. Kordic did sign some documents and

5 including, say, this particular document, saying he was the vice-president

6 of the HVO. But that is a non-extant title, and evidently its misuse came

7 about only because the HVO had been set up only about a month before that,

8 so that the vice-president of the presidency of the HZ HB and he

9 discharged that function for about half a year before that and it was

10 automatically transferred to this office.

11 But another document which was issued some 12 days later, which is

12 Z111, Mr. Kordic signed that document in his proper capacity, that is,

13 vice-president of the Croat Community of Herceg-Bosna, of the presidency

14 of the Croat Community of Herceg-Bosna. Document Z110 was written on the

15 10th of May, 1992, and 111 on the 22nd of May, 1992. So this is the

16 interval of time when the utmost was being done to overcome the situation

17 which had arisen because the Muslims had broken the agreement.

18 And I have to quote just one word from the affidavit of Mr. Abid

19 Hodzic, who said explicitly that -- well, if I may put it that way, his

20 Muslims in Busovaca had told him, when they spoke about Mr. Kordic's role,

21 that he prevented a large-scale conflict, because had he not done that,

22 there will be blood in the streets. That is what this witness said in his

23 affidavit.

24 Ergo, in this document -- this, I believe, is an answer to the

25 question that was already answered by Mr. Smith, but perhaps no damage was

Page 28398

1 done if I repeat it. The HVO in Busovaca, in a situation which threatened

2 to grow into anarchy, indeed undertook the responsibility for the

3 organisation of whole life in the territory of Busovaca. Not only do we

4 admit that; that is a fact. But document 111, which was written and

5 signed by Mr. Florijan Glavocevic as the President of the Municipal HVO

6 Staff, shows that the HVO did not discriminate against members of any

7 other people - I apologise - because everybody was invited to go back to

8 work, to go back to their workplaces, to do the same jobs, and additional

9 possibility was given two policemen from the police station who did not

10 want to work under, if I may put it that way, under HVO's umbrella, that

11 they were duty-bound to work in that station. And we heard from Witness A

12 that the Muslims had set up their own police station, which was active

13 throughout.

14 So this document, 111, additionally established peace and order in

15 the municipality of Busovaca. Nobody, not a single civil servant, municipal

16 civil servant or -- lost his job. The only one who did was (redacted)

17 (redacted), whose post was abolished. But owing to Mr. Florijan

18 Glavocevic, he then went to work for the company Vatrostalna. In other

19 words, nobody was dismissed, nobody had to take some oaths of allegiance,

20 and so on and so forth. And after all, in this ocean of documents that

21 have been adduced, one would have found that oath of loyalty, or of

22 allegiance, if it had existed, as some witnesses had tried to show.

23 I'm talking about Niko Grubesic, DE, Zoran Maric, and other

24 witnesses when I speak of this. By the way, just one word about Witness M

25 who tried to convince this Honorable Court that he did not hold any posts

Page 28399

1 in 1992, that he only formally came to work and received a salary. This

2 is quite untrue. There are many documents that point to this, D258/1, et

3 cetera.

4 What do I wish to say by this? I wish to say that after May 1992

5 until the end of 1992, the civilian government of the HVO absolutely

6 worked in favour of equal rights to be enjoyed by all the citizens of

7 Busovaca. It is not only that witnesses testified about this before you,

8 Your Honours. I have to invoke many documents very quickly. 240/1, that

9 is a decision of the HVO government in Busovaca that the members of the

10 Territorial Defence and the members of the HVO have completely equal

11 status and they were all entitled to compensation of pay without any

12 discrimination.

13 In my opinion, document 250/1 is very important in this context.

14 In order to have full equality amongst citizens and taking into account

15 the needs of the citizens of Busovaca, it explicitly called for all the

16 people employed in the municipality to issue documents to citizens that

17 would be in line with the citizens wishes on such forms. That is to say,

18 whether the heading would only say the Republic of Bosnia-Herzegovina or

19 on the other hand whether it would have the heading of the Republic of

20 Bosnia-Herzegovina and in addition to that the Croat Community of

21 Herceg-Bosna. In my opinion that document is one of the fundamental claim

22 that there was no discrimination in 1992. After all, school diplomas were

23 issued in the same way, whichever way anybody wanted. Schools were

24 financed, the school in Kacuni and in other places in completely the same

25 way.

Page 28400

1 Cooperation between Croats and Muslims continued in all spheres of

2 life. Not to tire you, Your Honours, I'm just going to invoke a few

3 documents, D254/1, D255/1, and D256/1.

4 There is another document that is very illustrative in this

5 context and this is D259/1. That is a decision of the municipality of the

6 HVO government, that is, that was signed by Zoran Maric on the 22nd of

7 December, 1992. That is to say that about a month and a half before the

8 war broke out, that is to say, about -- that had to do with giving

9 financial compensation and help to HVO soldiers and TO soldiers who had

10 lost their lives, to their families. There was no discrimination.

11 Perhaps it is also necessary to invoke document 268/1.

12 Another important matter. In the municipality of Busovaca as

13 opposed to some other municipalities, there were not two executive

14 governments that were established. Throughout 1992 in Vares, I beg your

15 pardon, in the municipality of Busovaca, there was only one executive

16 government that functioned with the participation of both Muslim

17 representatives and Croats and Serbs too, of course.

18 My colleague has reminded me of the time. I see that I will have

19 to speed up as well so I will just say very briefly what our additional

20 problems were in the municipality of Busovaca, and these are three major

21 waves of refugees that the Honorable Court had the opportunity to hear

22 about. The first one in October and November of 1992 when refugees

23 arrived from Jajce, Kotor Varos and Dobratici. That is what in Nasiha

24 Neslanovic a Prosecution witness mentioned as well, then the second wave

25 of refugees from Zenica that started coming in sometime in January of 1993

Page 28401

1 and, for the most part, they came in April 1993.

2 And finally, the third wave of refugees are thousands of

3 inhabitants of the municipality of Travnik who were expelled by the army

4 of Bosnia-Herzegovina in June 1993. This uncontrolled influx of refugees

5 caused, and significantly so, an increase in the crime rate. However,

6 people from the civilian police and other people from Busovaca testified

7 in front of you so you have had sufficient insight.

8 Perhaps it is important to mention, though, that the civilian

9 authorities and the military authorities that Witness Dusko Grubesic spoke

10 about here took measures to overcome this situation. However, due to the

11 ongoing fighting in 1993, this was virtually impossible to suppress. I'm

12 talking about crime.

13 We are now moving on to a few specific events that were given

14 great attention during these proceedings and that is the incident in

15 Kacuni on the 21st of January, 1993. The Prosecutor insisted on this

16 document, I imagine, because at least indirectly, an effort was made to

17 tie Mr. Kordic to something that happened that evening in Busovaca.

18 The story started with Witness T. His statement is a typical

19 story of unacceptable hearsay. I don't want to retell his statement. He

20 found out from a third person what somebody else had told him about. Of

21 course, as in all hearsay cases, this witness introduced some other people

22 into this story in addition to Mr. Kordic and Mr. Kostroman, he talked

23 about Anto Valenta, and even Bozo Rajic who was not in the territory of

24 Central Bosnia at that time at all, and even Tihomir Blaskic too.

25 However, finally, in cross-examination, he agreed that his statement is

Page 28402

1 simply drawn on his own inferences so there is no need to spend more time

2 on that.

3 Witness AE is another witness who testified about this. As

4 opposed to Witness T, he was there in Kacuni when this took place, and he

5 claimed that four vehicles came from the direction of Kiseljak. And he

6 also claims that Mr. Kordic was in the second vehicle that he described as

7 a jeep. By the way, Mr. Kordic never used such a vehicle.

8 The core of the matter is, as far as AE's testimony is concerned,

9 is that the head of the sabotage detachment of the army of

10 Bosnia-Herzegovina, Miralem Delija, had his pistol taken away. This

11 witness describes this person as the commander of the Jokeri. Nobody said

12 that before in this trial, not even the witness who testified just

13 recently. And that after that, Mr. Kordic threatened him saying that he

14 would pay for this. That is the only reason why this witness testified,

15 to utter this threat that Mr. Kordic had allegedly made.

16 The Defence of Mr. Kordic has been stating from day one that

17 Mr. Kordic has nothing to do with this event nor is involved in this event

18 in any way. However, as we heard from the Prosecution witnesses, then we

19 were compelled to find eyewitnesses to hear what they would have to say as

20 well.

21 Your Honours, Ivo Arar testified here before, you, Josip Grubesic,

22 Milenko Arapovic, and affidavits were given by Brano Kristo and Bogdan

23 Santic. The gist of their claims is that in Kacuni at that time only

24 Mr. Kostroman's vehicle was stopped and that that vehicle was not going

25 from Kiseljak to Busovaca but precisely in the opposite direction, from

Page 28403

1 Busovaca to Kiseljak.

2 Finally, when we thought that that fact was clarified to the

3 Honorable Judges, in the rebuttal case, Witness AW showed up and he

4 basically corroborated what the Defence witnesses had said, that is, that

5 the vehicles came from the direction of Busovaca and were going towards

6 Kiseljak, and even more importantly, that he heard that only Mr. Ignac

7 Kostroman had been stopped there. There was no mention, therefore, of

8 Mr. Kordic because Mr. Kordic was not there at all.

9 The witnesses who testified before you said how they found out

10 about this incident, and they went to help Mr. Kostroman and his escorts

11 without Mr. Kordic knowing about it at all. So it is impossible for

12 Mr. Kordic to have known about this when his escorts reacted on that day

13 and went to help Mr. Kostroman. Why is this story important? It is

14 important because it has become the Prosecutor's light motif, that is to

15 say, to link Mr. Kordic to what was going on that evening in Busovaca.

16 Of course, perhaps, I should have said earlier on when I was

17 talking about the statements made by Prosecution witnesses, I remember

18 this, this second witness said when he was shown some of the things that

19 AE had said, the witness said that this was the fruit of his imagination.

20 So another Prosecution witness completely refuted what their first witness

21 had said.

22 Mr. Kordic had nothing to do with what happened to Busovaca on the

23 21st of January, 1993 in the evening, Your Honours. That is what Witness

24 Dusko Grubesic testified about here too, and document 361/1, section 8

25 speaks of this too. The witness and the document spoke of the

Page 28404

1 circumstances of the wounding and eventual death of Mirsad Delija and this

2 is not a contested fact that he was wounded and he passed away. However,

3 Mr. Kordic had nothing to do with these events nor did he know that

4 anything would happen on that day.

5 It is important to mention Nusreta Neslanovic [as interpreted], a

6 Prosecution witness once again. She said explicitly before this

7 Honourable Court that Mr. Kordic could not have known everything that

8 happened in Busovaca, and perhaps that is the whole truth. Perhaps one

9 more detail. The Prosecutor tried to prove that on the 20th of January, a

10 meeting was held in Fojnica which was supposed to be an additional motif

11 for the vehicles to have arrived from that direction, from the direction

12 of Kiseljak. However, that was denied by Witness DC who was a very

13 convincing witness at that.

14 Of course there is no need to dwell on all these witness

15 statements because finally, this event that occurred on the 24th of

16 January, 1993, a few days later, boiled down to what Witness Srecko Kristo

17 testified about, and he is a survivor of that event.

18 Briefly, we are in January now so I am going to mention a few more

19 documents. I'm trying to keep my speed down because of the interpreters,

20 but I have very little time left. The interpreters say that this is the

21 limit of speed at which the Defence counsel can speak.

22 Your Honours, we believe that at the end of January 1993, the army

23 of Bosnia-Herzegovina attacked the HVO in Busovaca. It is not only Dusko

24 Grubesic testified about this, at that time, the deputy commander of the

25 Nikola Subic-Zrinjski Brigade and also Zoran Maric. I think it is also

Page 28405

1 important to bear in mind what Colonel Stewart said with regard to this.

2 I also wanted to analyse Witness J's testimony, but you are going

3 to analyse it on your own and you will see that what he said is

4 unacceptable. It is unnatural and illogical so to speak. It is important

5 to point out to the Court when assessing who attacked who to take into

6 account a series of circumstance that took place before that and one of

7 the important symptomatic matters is the fact that civilians; women,

8 children, and elderly Muslims started leaving the area of Busovaca

9 primarily the town of Busovaca in the beginning of January 1993 and

10 onwards.

11 For example, Witnesses AG and AL, Prosecution witnesses, spoke

12 about this. Witness AR by the way evacuated his family before that, then

13 also Witness B who left on the 24th of January and returned on the 30th of

14 March, et cetera, et cetera. And it is even more important to mention

15 Witness DH who was -- he was returning home on the 24th of January, 1993

16 from Zenica. He drove a soldier of the BH army who was wondering why he

17 was going to Busovaca at all. Obviously they knew that there would be an

18 attack.

19 Your Honours, as I am pressed for time, I have to hurry on.

20 However, I must say that Court Witness 1 said that during the January

21 conflicts from the municipality of Busovaca, that includes Kacuni and

22 about ten other villages, about 1.200 Croat persons were refugees and

23 about 1.300 arrived in Busovaca, the town of Busovaca and the rest went to

24 Kiseljak.

25 During this January conflict, many witnesses said that they

Page 28406

1 encountered Mr. Kordic in the basement of the post office in Busovaca.

2 The Defence has not challenged the fact that from time to time, Mr. Kordic

3 did come to these premises where the Nikola Subic-Zrinjski forward command

4 post was, and Dusko Grubesic spoke about this. However, he did not have

5 his own office there. He came there to seek information about what was

6 going on during those days. I also wish to recall what Mr. Grubesic said,

7 that due to the suddenness of the attack and the lack of readiness on the

8 part of the HVO for this kind of attack, there was simply disorganisation

9 within the Nikola Subic-Zrinjski Brigade.

10 Your Honours, I just wish to remind you that the first war crime

11 in the territory of Central Bosnia occurred in the village of Dusina on

12 the 26th of January, 1993 and the victims were Croats. However, we do not

13 have time to speak about this specifically. You've already had an

14 opportunity to hear about this.

15 Your Honours, I have to particularly refer to Z421.4, that is the

16 order that Mr. Dario Kordic, as vice-president of the Croat Community of

17 Herceg-Bosna signed on the 30th of January 1993. Witness Dusko Grubesic,

18 I just wish to recall him, explained that this document which contains, in

19 the Croat original, many typical military abbreviations, was drawn up by

20 one of the operations people from the command of the brigade at a moment

21 when the commander of the brigade was consistently asking the Operative

22 Zone for assistance. However, the Busovaca Brigade did not receive any

23 assistance in manpower or anything like that.

24 So on the 30th of January, 1993, Witness Dusko Grubesic was asked

25 by his commander to personally intervene with Mr. Kordic to get help in

Page 28407

1 some way because the attack was a very forceful one, and there was no time

2 to waste, so to speak.

3 The witness, I think, described well those circumstances, the

4 pressure that was being brought at the time. And Mr. Kordic helped. He

5 telephoned, he communicated with then Minister of Defence, Bruno Stojic, I

6 mean that was not his title, but it's easier to call him that, who then

7 empowered him to do whatever he was able to do. He signed an order which

8 was composed by men of the Nikola Subic-Zrinjski Brigade, merely with the

9 view to helping the brigade because there were no other possibilities.

10 I should also like to draw your attention to D356/1, tab 16, which

11 is a different version of that. However, this order was never carried

12 out. Why? Because immediately after this had been delivered to the

13 Operative Zone, and that is document D356/1, tab 15, Slavko Marin who was

14 the operations officer in the Operative Zone sent the Nikola

15 Subic-Zrinjski Brigade two orders which, the night before, on the 29th of

16 January, 1993, in the evening of that day, had been issued by the

17 commander of the Operative Zone and about which, in Busovaca, nobody knew

18 until the time because they had not been delivered yet. And only when

19 somebody realised that the Operative Zone had reacted, that they would

20 respond to this original and this copy, the commander added, in his own

21 hand, done pursuant to another order; that is, it was simply filed and

22 that order was never put through.

23 So this is an exceptional moment when Mr. Kordic, as the

24 vice-president of the Croat Community of Herceg-Bosna upon the request of

25 the brigade, the leadership and with the authorisation of the Minister of

Page 28408

1 Defence tries to help.

2 Your Honours, with regard to this second document, Z437.1, we

3 absolutely deny the authenticity of that document because it is not

4 signed, it doesn't have a seal, it does not have an indication of the

5 packet radio, and nobody confirmed its credibility.

6 There is still another document which needs to be analysed which

7 is Z447.1 which the Court had the opportunity to see yesterday, and that

8 is the report of the artillery chief in the Operative Zone Central

9 Bosnia. I do not want to go into the purpose for which this document was

10 issued as I understand it; however, I do agree with what the Court said

11 yesterday. And I think that that is also the position of the Defence that

12 from this document, one could infer that Mr. Kordic perhaps, from time to

13 time, issued some instructions to the artillery or specifically to the

14 said chief of artillery during that short period of time between the 26th

15 of January into, perhaps, the end of the first week of February of that

16 year.

17 And one, however, needs to bear in mind under which this happened

18 and that is this confusion in Busovaca, and the need for all kinds of

19 help. Secondly, these alleged instructions to the chief of artillery,

20 these orders did not make Mr. Kordic a military man. He was not a

21 military, nor was he a commander at any time in any formation and that

22 includes Busovaca.

23 And thirdly, during -- in this case, it has not been proven that

24 these orders had been complied with and which were the targets, which is

25 also very important. Because if those were military targets at the time

Page 28409

1 of the civil war in Central Bosnia, then I think one cannot speak about a

2 war crime.

3 And perhaps the most important of all, what does that prove?

4 Let's take that Mr. Kordic issued several instructions during those 10 or

5 15 days, or perhaps the interval was even shorter. I think that from that

6 fact itself, nothing arises from that in the sense of criminal law, and

7 therefore Mr. Kordic is not responsible, even if that is true from the

8 criminal law point of view, because this is an isolated time, an isolated

9 period -- interval of time, and the Prosecutor has not proven that there

10 was any causal relationship between the several instructions issued by

11 Mr. Kordic to the chief of artillery of the Operative Zone or -- and any

12 one military event that took place in the Lasva Valley until the

13 conclusion of the ceasefire, that is, until spring 1994. There is no

14 causal relationship between Mr. Kordic's activities in January and what

15 happened, say, in September 1993, at Grbavica, or what happened in Vitez

16 in April. There is absolutely no causal relationship over what happened

17 in Zenica, as was mentioned yesterday.

18 We therefore believe, in conclusion - because I'm pressed by time,

19 so I have to conclude - the Prosecutor has not proved in any way, with the

20 exception of those few isolated fragments, that Mr. Kordic had to deal

21 with any other military activities beyond this period of disarray, of

22 disorganisation of life in Busovaca in late January and early February

23 1993.

24 I think that the Defence has already said, Your Honours, enough

25 what we think about document Z6104.1, and that is the book of observations

Page 28410

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Page 28411

1 of the duty officer in the Operative Zone. And in view of the time, I do

2 not wish to repeat anything, just to mention another document in the end,

3 and that is Z1356.4 of the 11th of January, 1994, which is hearsay, to put

4 it mildly. We do not know who was issuing orders to whom, if that is what

5 that document says. And if one thinks of the logical manner in which the

6 duty officer in the brigade collects this information, and obviously the

7 reports on the ground could be just any, and anyone could introduce

8 himself and say he was Mr. Kordic, except that here it is ludicrous that

9 one speaks about firing some fire extinguisher and then this is related to

10 Mr. Kordic's name. That is absolutely unacceptable to me.

11 And Your Honours, I would now give the floor -- cede the floor to

12 Mr. Sayers to complete the presentation. Thank you.

13 MR. SAYERS: Let me just wind up our presentation, Mr. President,

14 with three points. The first picks up on a question that was raised

15 yesterday, and it really relates to the proposition that was advanced to

16 military witness after military witness, and it was: Isn't it true that

17 politicians ultimately give orders to soldiers? That's the first issue

18 that I'll address.

19 Second, I'll briefly touch upon the Ahmici investigation and a

20 brief private session to deal with Witness AT.

21 And then finally I'll pick up on, in a little more detail but not

22 much, the points that were raised by Mr. Smith relating to instigation,

23 incitement, and the asserted war crimes associated with that principle.

24 But let me turn to the first. Of course, in a broad sense it's

25 true that the political leadership of a country, of an entity like the

Page 28412

1 HZ HB or the HR HB gives orders to the military - there's no question

2 about that - but only in the broadest sense. And there's no question in

3 this case, and you've heard from both of the senior military figures

4 either end of the time period that is spanned by the amended indictment,

5 the president of the HZ HB and the HR HB, the Supreme Commander of the

6 armed forces, a man of forceful personality. Yes, he was the one who was

7 giving the broad strategic orders, a man not given to delegation of his

8 military prerogatives and who did not delegate them. The evidence proves

9 that fairly conclusively.

10 The breakdown of the Prosecution's theory is that the attempt to

11 filter down onto a local level the broad proposition that soldiers take

12 their ultimate political -- or their ultimate orders and directions from

13 politicians. And the most vivid illustration of that was really just last

14 week, where we had a very senior Muslim politician in Travnik throughout

15 the war. The same proposition was put to him: "Isn't it true that local

16 politicians in Travnik were ultimately giving orders to the 3rd Corps,

17 conducting military activities there?" The reaction that it provoked from

18 him was: "That's absolutely absurd. The 3rd Corps had its own

19 hierarchical chain of command." Then the question was asked a little bit

20 more broadly: "All right, Dr. Genjac. If it's not true that in Travnik

21 local politicians were giving orders to the military, let's take Central

22 Bosnia. Who was the local politician that was -- or the regional

23 political leader who was communicating orders to the 3rd Corps?" And he

24 didn't change his opinion. He found that proposition to be equally

25 absurd. He emphasised that the 3rd Corps had its chain of command and

Page 28413

1 answered to it throughout.

2 And as you apply those facts to the law, we would submit to the

3 Trial Chamber that the most pertinent legal precedent really comes from

4 the Rwanda tribunals, which really did analyse the principles of criminal

5 culpability as applied to civilian leaders in a conflict. But consider,

6 if you will -- and we set this out on page 269 of our brief and 270 and

7 thereafter. The Rwanda situation is very peculiar because it involved an

8 armed conflict, but the army participated in conflicts against the

9 Rawandese Patriotic Front and was not involved in the military activity

10 that resulted in the war crimes in those cases. It was actually the

11 civilian political leadership that was whipping up tension and actually

12 conducting a genocidal campaign against the Hutus. Three cases make that

13 point, two most particularly. Generally, the law in the Akayesu case is

14 to the effect that although the observation was made that the genocide

15 against the Tutsis occurred concomitantly but was fundamentally different

16 from the conflict, unlike in this situation, the situation involved in

17 this case.

18 But two good examples of the application of superior

19 responsibility to civilians come from the Musema case. Two general

20 principles to be derived from that case, Your Honours. Here Musema was

21 the director of a large tea factory where crimes occurred. He had

22 extensive control over the employees of the Gisovu tea factory and he was

23 found to be responsible for the crimes that occurred in that factory. But

24 an attempt was made to extend to others in the area where crimes occurred

25 the liability that was said to attach to Alfred Musema, and the Court

Page 28414

1 refused to do that. The Trial Chamber in the Musema case said that the

2 evidence was not sufficient to show that he in fact exercised de jure

3 power and de facto control over other members of the population of the

4 Kabuye Prefecture, including the villageois plantation workers, and that's

5 an important principle here.

6 JUDGE MAY: It's a matter of fact in each case and a matter of

7 evidence which a Trial Chamber is going to have to decide as to how far a

8 leader, political or military, how far his authority extended and how much

9 crimes can be attributed to him.

10 MR. SAYERS: Very much so, Mr. President. We completely agree

11 with that. It is a factual inquiry, a detailed factual inquiry. But the

12 point I'm making is that the Musema and the Kayishema case, they

13 articulate the general legal principles. You have to show a very high

14 degree of control, almost similar to the control that the military

15 commander has over forces under his command. It's essentially the

16 functional equivalent. And that simply, in our respectful submission,

17 does not exist here.

18 Let me turn to Ahmici very briefly, and if I may --

19 JUDGE BENNOUNA: [Interpretation] Mr. Sayers, excuse me, but how do

20 you define "high degree of control"? How would you define that and what

21 was the test that is admitted for the command responsibility?

22 MR. SAYERS: Let me tackle that question head on, Your Honour,

23 with a quotation from the Kayishema case, where Clement Kayishema was

24 found to be responsible under the equivalent of Article 7(3) of this

25 Tribunal's Statute because, to use the words of the Court, he "exercised

Page 28415

1 clear, definitive control, both de jure and de facto, over assailants at

2 every massacre site set out in the indictment." And that's the test that

3 we think should be applied here: clear, definitive, de facto and de jure

4 control over people that commit the war crimes. And in our respectful

5 submission, when you compare the facts of the Kayishema case with the

6 facts of this case, there's absolutely no parallelism. The facts here do

7 not even approach the high level, the clear, definitive control that

8 required under the international humanitarian law for the imposition of --

9 JUDGE ROBINSON: Just remind me, Mr. Sayers. Was that a Trial

10 Chamber or Appeals Chamber?

11 MR. SAYERS: Trial Chamber, Your Honour.

12 JUDGE BENNOUNA: [Interpretation] Mr. Sayers, this indeed is a case

13 which you have just quoted, and you know very well that the responsibility

14 is linked to the effective control of facts rather than judicial title.

15 This is the general principle of law. And therefore here it turns out

16 that a person, de jure and de facto, had control or did it -- but -- and

17 that de facto control suffices. One need not have both types of control.

18 De facto control suffices in the international jurisprudence.

19 Now, the problem here is the power, that is, the ability, the

20 power to prevent and punish, that is, the control, and that is a

21 definition which slightly goes in circles; that is, the control gives you

22 the power to prevent and punish, and the power to prevent and punish means

23 that you have control, and that is where we are.

24 MR. SAYERS: Quite right, Your Honour. There is a certain

25 paradoxical element to this. It's like Einsteinian space that bends back

Page 28416

1 and meets itself. It is a circular argument in some ways. But I think it

2 comes down to one very meticulous inquiry that unfortunately is your duty,

3 and that is that you have to analyse the facts very, very carefully to see

4 whether there is clear, definitive, de facto control; that's quite right.

5 You don't have to have de jure power necessarily. If you actually control

6 troops on the ground and you're actually controlling operations, then

7 quite clearly you should be held. But that's the test, and it doesn't

8 meet the facts of this case beyond a reasonable doubt or beyond any

9 reasonable doubt, which is the ultimate test.

10 Now, if I might just very briefly go into private session to

11 discuss Witness AT.

12 [Private session]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

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21 [redacted]

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Page 28422

1 [redacted]

2 [redacted]

3 [Open session]

4 MR. SAYERS: If I could just ask this document to be put on the

5 ELMO, this was the one document that was uncovered by the Prosecution

6 containing assertedly the word balija and Mr. Kordic's signature. If you

7 look at the first page in the Croatian, actually, you can see that it

8 looks like it's been printed off a computer. The word balija does not

9 appear on that page. You'll notice that it's single spaced.

10 Now, the document was assertedly signed. I wonder if the usher

11 would put the signature page on the ELMO, please. Double spaced, no

12 signature, no stamp, nothing. But if this is the best that the

13 Prosecution can do, Mr. President, that's not good enough.

14 The principals' underlying political speech were articulated in

15 the Nuremberg war crimes cases, and where people such as Julius Streicher

16 or Hans Frank advocated violence and extermination of the Jewish race,

17 they were appropriately held liable for inciting crimes of persecution and

18 crimes of genocide.

19 But as we've said on page 269 of our brief, the other side of the

20 coin is legitimate political speech, result, held not liable for even

21 utterances of even avowedly anti-Semitic remarks because they were made

22 in -- as they were held in -- they had a strongly propagandistic nature

23 but they were not intended to incite the German people to commit

24 atrocities and that's exactly what we have here.

25 You know what Mr. Kordic actual speeches were, not the stories

Page 28423

1 told about them years and years later by people who have filtered their

2 recollection through a veil of bitterness and loss. We've got the January

3 16, 1992 that Mr. Kordic gave, no incitement to violence. The February

4 1st speech, there are several translations of that, Z431A, Z431. Once

5 again, no incitement of violence. Simply saying, look, we've got a

6 ceasefire, we'll obey it, but don't attack us or we'll fire back.

7 And then finally, April 15, 1993 which is Z665 no incitement of

8 violence there. The Court will recall Witness AQ brought to this Court to

9 say one thing. There were two speeches, the one that she saw on TV, and

10 another one where Mr. Kordic assertedly said, "My soldiers are ready, just

11 awaiting orders." And what did she say no, the videotape, Z665, is

12 exactly that speech and, unfortunately, it doesn't say what she had

13 remembered.

14 In conclusion, Your Honour, we are left with a subtle case against

15 Mr. Kordic, a lot of evidence, but it's a mile wide and an inch deep.

16 That's exactly what it is. And I think I've previously made the

17 observation when Mark Twain first saw the Rio Grande he said, "I never

18 realised how much water meant to a river until I saw this river."

19 Dry stretches of river bed, that's exactly what we have here.

20 There is no proof beyond a reasonable doubt, and that's the test, beyond

21 any reasonable doubt of a crimes charged against Mr. Kordic and he should

22 be released because he's not guilty. Thank you.

23 JUDGE MAY: Thank you. We'll adjourn now for 20 minutes.

24 --- Recess taken at 11.13 a.m.

25 --- On resuming at 11.37 a.m.

Page 28424

1 JUDGE MAY: Yes, Mr. Nice.

2 MR. NICE: Your Honour, I'm sorry so interrupt the flow of

3 speeches, but as I explained to Mr. Kovacic and indeed to your legal

4 officer there was an error in the last paragraph of our brief which

5 touches the Cerkez case, and although it concerns a sentence which is

6 something that no one has addressed at all in their oral submissions it

7 seemed only right that I should make the point before Mr. Kovacic stands

8 up.

9 As the Chamber knows, the position of the Prosecution for both

10 accused is that life sentences are appropriate, but what we've gone on to

11 say is that there could be a recommendation by the Trial Chamber as to a

12 reducible period. What should have been in paragraph 498 but does not

13 feature there, is that there could, of course, be discrimination between

14 the two accused were the Chamber so to decide in the reducible minimum

15 sentence that could be recommended and in those events, we would propose a

16 reduced, a reducible minimum in the case of Cerkez.

17 JUDGE MAY: You've got that in writing.

18 MR. NICE: I haven't but I can formulate it in a way that can be

19 an addendum to this brief. Thank you.

20 JUDGE MAY: Yes, Mr. Kovacic.

21 MR. KOVACIC: Thank you, Your Honours. [Interpretation] May it

22 please the Court. I would like to introduce our colleague here in the

23 courtroom first, Ms. Nika Pinter. She is our legal assistant. She worked

24 on the Kupreskic case before, successfully, I might add.

25 Perhaps I'm not going to be very consistent at certain points in

Page 28425

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Page 28426

1 terms of the actual flow of what I have to say, but our colleagues from

2 the Kordic Defence mentioned many things in terms of general circumstances

3 on which our views coincide. So we simply subscribe to what they have

4 said and we do not wish to repeat that.

5 Throughout this case, the Prosecutor tried, through a large body

6 of evidence, to create an atmosphere concerning the events in the Lasva

7 River Valley in 1992 and 1993. In that atmosphere, they tried, in the

8 context of this conflict, and we have seen until today that this is a

9 conflict between two more or less equal parties, if we don't go into all

10 the details. The Prosecutor wishes to show that whoever was a member of

11 the HVO regardless of the post he or she held is a priori responsible in

12 some way.

13 I would like to oppose this thesis by a counterthesis which has

14 actually been the load star of the United Nations when establishing this

15 Tribunal. Perhaps this is most aptly put in the report of this Tribunal,

16 the first annual report of the 28th of July, 1994 where it was stated

17 explicitly that if responsibility for the crimes perpetrated in the former

18 Yugoslavia is not attributed to individuals, then whole ethnic and

19 religious groups would be held accountable for these crimes and branded as

20 criminal.

21 The point is, of this entire project, to establish the

22 responsibility of individuals. Therefore, we believe that the fact that

23 one merely belongs to one of the groups involved in the conflict can, by

24 no means, be an automatic basis for determining a person's guilt.

25 Mario Cerkez was indicted because he happened to be in a

Page 28427

1 municipality where a crime was committed. The crime in Ahmici which,

2 undeniably took place. We have not challenged that ever from the first

3 day of this trial. Therefore, the events in the municipality of Vitez

4 came into the focus of attention, and then another thing happened.

5 In that municipality, the special purpose units of Vitezovi

6 operated. We heard a lot about them, mobile powerful unit and according

7 to various pieces of evidence, it played a positive role in terms of

8 defensive military actions but it also seems that its participants had a

9 high degree of visibility and that they often committed various criminal

10 offences.

11 Cerkez is physically similar to the late Kraljevic too. Because

12 of the problems of language and translation, the units were confused

13 during the first interviews and that is how the accused Cerkez found

14 himself in the limelight.

15 Had he been the commander of a brigade in any other municipality

16 in Central Bosnia where the war took place, nobody would have ever

17 mentioned him. That is to say that the very beginning of these

18 proceedings is related to the facts from this environment and not his

19 actual operations.

20 During these proceedings, and increasingly so, after a great deal

21 of evidence that we have been shown, it is interesting to note that less

22 and less facts were actually being challenged. There is actually a

23 contest between two theses presented by the Prosecution and the Defence,

24 and it basically boils down to an interpretation of certain facts that we

25 have established.

Page 28428

1 I am going to mention Z653 in this context. I don't think there

2 is any need to put it on the ELMO again. I think that this is one of the

3 exhibits that was used the most both by the Prosecutor and the Defence but

4 it was interpreted in different ways. It is an appraisal that was made by

5 SIS, by the VOS of the Viteska Brigade; Witness Bertovic testified about

6 this. We agree that at first glance both conclusions can be drawn. Of

7 course, it has to be put into the context of all other documents,

8 evidence, the situation in those days that we know quite a lot about, and

9 then the answer is there.

10 Of course, all the Defence witnesses in this or that way explained

11 more or less along the same lines that this was the potential of the

12 brigade at that moment and that until that moment, the brigade was never

13 mobilised that way at that time. This shows that the brigade, commanded

14 by Mario Cerkez on the eve of the conflict, was not ready, along with

15 other elements that I am going to mention to a greater or lesser extent.

16 At this point, I wish to remind the Court of one fact related to

17 the actual proceedings and that is that the Prosecutor submitted an

18 indictment, amended it, and then through various pre-trial motions and

19 during the trial itself, promised to present certain facts and to prove

20 them before this Court. The Defence believes that this promise was not

21 fulfilled.

22 On the contrary, the Defence of Mario Cerkez in its pre-trial

23 motion, in spite of the very scant discovery before the trial began, in

24 spite of the largely irrelevant documents, I would say, that the accused

25 received at that time, the Defence nevertheless mentioned the basic

Page 28429

1 elements of its defence, abided by them consistently, and they have not

2 been jeopardized in any way.

3 One of the main points in this trial is the question of

4 circumstantial evidence. Of course I am not going to go into matters

5 related to theory and the weight that circumstantial evidence should be

6 given. However, it is worth emphasising that after such a long and

7 strenuous trial, after such a great deal of effort that's been made, we

8 hardly have any evidence that is quite clear, quite clear-cut,

9 uncontroverted. There are too many matters that belong to circumstantial

10 evidence as such and that belong to a structure that is attempted to be

11 built.

12 I would also like to remind you of difficulties related to

13 identification. The Prosecutor actually changed the indictment and the

14 counts during the proceedings. I'm not going to go into a very serious

15 elaboration concerning this, but I'm going to mention the killing of Samir

16 Trako, which was not mentioned at all in the indictment, and it occurred

17 in May 1992.

18 Finally, after a series of evidence, the Prosecutor informed us

19 that the alleged perpetrator, Vukadinovic, committed this, or rather he

20 now believed that Vukadinovic had admitted this, not Cerkez. But then the

21 Prosecutor added yet a new thing, and that is this Vukadinovic, if that is

22 the same person, was a member of the military police of the HVO in 1992,

23 and it was later transformed into the brigade police, and therefore, in

24 terms of the chain of command, Cerkez is responsible because this was one

25 of his subordinates. I believe that there is no support or proof of this

Page 28430

1 thesis whatsoever, and I shall not go into it any more than this.

2 Now to mention another thing that the Court heard a lot about, the

3 problems of names and surnames that are the same and the difficulties

4 involved in precisely identifying certain individuals. Another problem in

5 this respect that I would like to dwell on is that during these

6 proceedings we heard from the Prosecutor, who tried to prove this through

7 the evidence presented, that the members of the Viteska Brigade directly

8 participated in the crime in Ahmici. That is to say that Mario Cerkez was

9 supposed to be the perpetrator of the crime in Ahmici on the basis of

10 command responsibility.

11 A few months ago in the courtroom, the Prosecutor informed us that

12 it is possible that the Viteska Brigade did not take part in the crime in

13 Ahmici, and therefore they believe that my client, Mario Cerkez, either

14 aided or abetted, possibly, the commission of this crime, so that again

15 changed the charges.

16 And yet again a few weeks ago the Prosecutor claimed that the

17 Viteska Brigade did take part in the crime in Ahmici, and then again

18 Cerkez's legal position was changed. Not to go into all the reasons why

19 the Prosecutor has done so, one of the reasons was obviously the testimony

20 of Witness AT that preceded this, so the story had to be adjusted

21 accordingly.

22 Another example of changing the indictment during the trial -- I'm

23 sorry. I'm not going to go into this any more.

24 As regards the crime in Ahmici, now that we've mentioned it, the

25 Prosecutor actually tries to reconcile two extremes, two opposites. I

Page 28431

1 would say that this is impossible. On the one hand, the Prosecutor is

2 trying to convince the Trial Chamber that Cerkez and his unit were in

3 Ahmici, and at the same time - and I said probably due to the credibility

4 of Witness AT, and also due to lots of other evidence - the Prosecutor

5 wishes to confirm that Mario Cerkez is an accomplice because his unit was

6 in Ahmici. We believe that there is no proof of this.

7 And in this regard I would like to say the following: It is a

8 fact that the newly mobilised members of the Viteska Brigade came to

9 Ahmici, Obla Glava, on the 18th of April, 1993, at the earliest. There is

10 a document that proves this, D643.1 [as interpreted], and that is the

11 command of the Viteska -- the command of -- or the order of Blaskic issued

12 to the Viteska Brigade. The number is 343/1. I'm repeating this for the

13 transcript. Blaskic's order to the Viteska Brigade and to the Defence

14 department requiring the mobilisation of some 40 soldiers immediately,

15 that the Viteska Brigade is supposed to organise and send to this front

16 line which is physically above Ahmici, to the north, on a hill above

17 Ahmici, that is, at the front line that is being established for defence

18 from BH army forces that are attacking from the north, the Lasva River

19 Valley.

20 May I remind you that Anto Pojavnik, who testified here - I think

21 he was a very credible witness - was precisely among these 40-odd men who

22 were then sent to this front line. And I should say that this testimony

23 is very characteristic, because this witness told us that he was mobilised

24 after he reported twice - on the 16th and on the 17th - and then on the

25 18th they finally told him that he was mobilised, and he was told to go

Page 28432

1 and dig trenches at that position above Ahmici. However, when he arrived

2 there, he became a fighter. He got a place in the trenches.

3 Unfortunately, he did not even have a weapon.

4 Let us now go back to this witness. Perhaps it is best for me to

5 say here straight away that this witness also said that in his hands he

6 held the diary that was found of a lower commander of the BH army, which

7 clearly showed the plans of attack of the army, and that diary was taken

8 over by the SIS, that is to say, the intelligence service of the HVO, from

9 the hands of that witness. Unfortunately, it was never found afterwards.

10 There were manipulations with documents, especially those that

11 were in the possession of the SIS. That became quite clear to us when we

12 discussed the so-called Zagreb documents. However, let us go back to this

13 again, the very story of Ahmici.

14 Before that day, that is to say, before the 18th of April, 1993,

15 other evidence points to the conclusion that the Viteska Brigade was not

16 or could not have been in Ahmici on the 16th of April, in the morning, for

17 objective reasons. Namely, it seems that the crimes that were committed

18 in Ahmici were committed over an extraordinarily short span of time and

19 that they were over already during the first part of the morning.

20 Regarding the fact that the Viteska Brigade was not in Ahmici and

21 could not have been in Ahmici is shown in D60/2, that is, Blaskic's

22 command -- Blaskic's order to the Viteska Brigade to place a blockade on

23 the routes leading from Vranjska and Kruscica towards the centre of town.

24 It was issued at 1.30 a.m. And that is actually the order that we heard

25 about from a series of witnesses, that Cerkez told them that that is the

Page 28433

1 order that he received orally, and later on, obviously, it came in writing

2 as well.

3 With regard to that situation, there is document 343/1, tab 7. It

4 is quite the same in terms of its form, time. That is the order issued by

5 Blaskic to Kraljevic, to the Vitezovi, and in it he described their

6 assignments, their tasks, which are of a defensive, preventive nature and

7 are related to the centre of town.

8 Then also in terms of form and time there is yet another identical

9 order. That is D343/1, tab 8. Blaskic issued this order to the civilian

10 police, and again he established certain positions in the centre of town;

11 notably, towards Stari Vitez.

12 And the fourth order in this package is D343/1, tab 6, which

13 Blaskic addressed to the 4th Battalion of the Military Police. The sector

14 of Ahmici Nadioci, the road between Ahmici and Nadioci, is the sector that

15 is mentioned in that order, also for the morning of the 16th of April.

16 When all these four orders are looked at together, then, in the

17 opinion of the Defence, it is quite clear that these are preventive

18 orders. Every unit got its own task, its own assignment.

19 And yet another observation that is based on other pieces of

20 evidence is that on all localities, what happened was exactly what Blaskic

21 had assigned. There was defence, an attempt to prevent an attack, except

22 in Ahmici. Lots of other evidence proves quite unequivocally that the

23 military police was in Ahmici, that is to say, precisely this police that

24 was supposed to be there according to Blaskic's orders. Therefore, I see

25 no reason why any other segment of these orders, when they are viewed as a

Page 28434

1 whole, should be changed or disbelieved.

2 Blaskic issued these orders. That is a fact. And that actually

3 was never controverted, although these other three, for other units, not

4 for Viteska, we did not have an opportunity of seeing until the

5 proceedings were well advanced. [In English] I had asked for it.

6 [Interpretation] A number of witnesses confirmed the assignment,

7 the assignment issued to the brigade, and we also heard about other units,

8 even from early Prosecution witnesses. We could begin to glean where

9 which unit was.

10 On the other hand, although on the basis of the evidence adduced

11 until the very end of the case, this picture was quite clear, and the

12 Prosecution deems that it is still clear and that all the evidence

13 regarding the positions on the eve of the conflict are clear. Yet, in the

14 latest documents, I mean Zagreb documents, the Prosecutor nevertheless

15 produced several more documents, and I think that three of them are

16 important. And they are supposed to underpin his new claim, that is, that

17 the Viteska Brigade was in Ahmici after all.

18 This document is Z673.7, Cerkez's report of 16th April, 1000

19 hours, where he says, and I'm quoting: "Our forces are advancing in Donja

20 Veceriska, Ahmici, Sivrino Selo, Vrhovine," and also says, "We have three

21 fatalities."

22 Then the Prosecutor adduces Z671.4, and that is Cerkez's report of

23 the 16th of April. And judging by its number, it must have been written

24 in the afternoon. And it says that Donja Veceriska and Ahmici had been

25 done or ticked off 70 per cent, and it also says that 14 persons had been

Page 28435

1 arrested in Nadioci.

2 And then the last document in that set, Z692.3, which is Blaskic's

3 order to the Viteska Brigade to fully take the villages of Donja

4 Veceriska, Ahmici, Sivrino Selo, and Vrhovine, and that order was issued

5 around 10.00 a.m.

6 At first glance, these are serious inculpating documents for our

7 defendant. However, the Defence challenges the true value of these

8 documents, or rather the conclusions that one can draw from these

9 documents, and this for the following reasons:

10 One, all three documents come from what has come to be known as

11 the Zagreb archives. The Defence considers that these documents had been

12 planted, that they are forged, and that therefore it is up to the Court to

13 consider their authenticity very carefully, especially because they do not

14 fit into the picture which had come up before that. Why? And who had the

15 reason to forge such documents and then plant them? Those HVO archives on

16 their way to Zagreb, if I may put it that way, spent six or seven years

17 under the control of at least three intelligence services, and at least

18 one of them indubitably had motive and reason to try to protect the

19 military police against the disclosure that they had committed the crime

20 in Ahmici; that is, somebody else had to be placed in Ahmici.

21 May I remind that this order which I mentioned, Z692.3, Blaskic's

22 order to the Viteska to take the villages of Donja Veceriska, Ahmici,

23 Sivrino Selo, and Vrhovine is unique. There isn't another document like

24 it --

25 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic, if I understand you

Page 28436

1 well, you are telling us that this Zagreb document which incriminates your

2 defendant, your client, Mr. Cerkez, is not authentic and that these

3 documents were planted by somebody during -- in the course of those six or

4 seven years in order to try to exculpate, to exonerate the military

5 police, that is, to put the Viteska Brigade in the Ahmici case and to

6 exonerate the military police. I do not understand why do you think that

7 exonerates them, that it exculpates them. Because that is the alibi or

8 possible motive for anybody to put -- to plant these documents. I do not

9 really -- I do not really see. How does this exculpate the military

10 police?

11 MR. KOVACIC: [Interpretation] Those who did that must have had two

12 things in mind: One, that there was -- that the case against Blaskic was

13 underway, that is. And at that time, when they could see where the

14 Blaskic's defence was heading, then somebody -- because the military

15 police were the first one that drew the attention of the Prosecutors to

16 the crime in Ahmici, so somebody had to protect the military police, they

17 themselves, because the military police is, after all, the closest to

18 these structures, to the CIS [as interpreted], structures in Bosnia and we

19 could see that from documents when we were discussing which documents

20 would be admitted and which ones wouldn't. Some were, not were not.

21 Needless to say, those who were up to these things, they tried to

22 manipulate events and change events, change events in the past, which was

23 not possible. But then they had to put in Ahmici somebody who logically

24 could be there and who would be the first logical candidate, the municipal

25 brigade. So that is our view. Now, I hope I've answered your question.

Page 28437

1 JUDGE MAY: Well, Mr. Kovacic, not really. If you think about

2 what you're suggesting, the first question which I raised with you or it

3 may be some other counsel when we were considering the admissibility of

4 these documents on which we've ruled and ruled some admissible. Others,

5 for reasons to do with the trial proceedings, we have excluded. But the

6 point which I raised is this: What is the evidence for these allegations

7 which are very broad which you're making? There is no evidence.

8 The other point you might like to consider is this: If it were

9 true that somebody has tampered with these documents in order to try and

10 exculpate the military police and blame the Viteska Brigade, why, if that

11 were true, is the Blaskic order there on which you rely? The Blaskic

12 order you've referred us to, is to the 4th Battalion of the Military

13 Police. That would be the document which, if it were true that this

14 exercise had taken place, that would be the document to be removed or to

15 alter to suggest that it was the Viteska Brigade. But the fact is that

16 that document remains and you rely on it.

17 It seems to me you're trying to have it both ways.

18 MR. KOVACIC: [Interpretation] Mr. President, Your Honours, Exhibit

19 343/1 Tab 6, that is Blaskic's order to the military police to undertake

20 an operation in the centre of Ahmici is one of our exhibits, and I'm

21 referring to what you said at some point during the discussion about

22 adjudicated facts. And you said that the Chamber would, of course, if

23 need be, look into other cases. But what I wish to say is unfortunately

24 we cannot prove that somebody planted a tampered document, a forged

25 document amongst the Zagreb documents. But we think that if one analyses

Page 28438

1 those two sets of documents, that the situation that we had in this case

2 based on documents and testimonies as against these which are two or three

3 documents which are critical to my mind and which arrived from Zagreb,

4 then we see the contradiction and then we cannot but ask who had the

5 reason to plant them?

6 But let me add something else about this. The appearance of this

7 disputable Blaskic's order which came and which inculpates the brigade,

8 its appearance is different. We have hundreds of Blaskic's orders yet we

9 cannot find another one like it in terms of form, in terms of style. This

10 one has two lines in one passage, and one in another one. All Blaskic's

11 orders are never shorter than ten lines.

12 Secondly, witnesses who were shown those orders, or rather that

13 order 692.3, and I must say ad hoc, because at that time we had not seen

14 it for instance, it was seen by Witness Bertovic. To my mind a very

15 credible witness who, the only thing he managed to answer, was "I'd need

16 at least three battalions," which I should have in theory. I mean it was

17 not realistic, and Bertovic is a commander on the ground. He is familiar

18 with the situation, and explained to us in detail his possibilities, what

19 kind of troops he had, where were his troops, how did he call them up,

20 when he could call them up, and I think the explanation was very clear

21 because he had never seen this document before. He was completely unaware

22 of that, and he gave us a logical answer.

23 In other words, it is difficult to assume that Blaskic was

24 completely unaware of the situation on the ground. Evidently there was

25 confusion. Evidently there was disarray. We've seen a number of

Page 28439

1 documents to this effect and a number of testimonies. Now, what was the

2 scope and extent of his knowledge, that has not been proven in this case.

3 However, we simply do not believe that in all this, Blaskic could

4 have issued such an order that morning, because it is nonsense. It is

5 simply absurd if we look at all -- what all the other documents tell us.

6 But then we call the Witness Zuljevic, and that is the next reason. Our

7 last witness, who testified on the 7th of December, and the purpose of his

8 testimony, that is why we called him to testify was why did the brigade

9 write all those reports that morning and why, because we believe this is

10 very telling, why do we find in a number of reports that morning and the

11 two or three next days terms such as "ours", "our forces", "we" and the

12 like are used.

13 Needless to say, all this is not very clear, because if that

14 document was issued by the Viteska Brigade and these are the reports of

15 the Brigade, if they use terms such as we, our forces and the like, then

16 one naturally assumes that one is referring to one's own unit.

17 But then from the localities, from the events and the like when

18 one tries to project it upon the situation that we now know about which we

19 have proof, we see that these things simply do not fit together and the

20 answer is precisely the one which, in the Defence has used the only

21 logical one. Because of the chaos which happened there, Blaskic is

22 seeking additional information, and he makes responsible the brigade for

23 this. He appoints the brigade as his ear, so to speak, to inform him

24 about all sorts of things. And Blaskic's operatives will decide what is

25 good.

Page 28440

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Page 28441

1 The Witness Gordana Badrov and Josip Zuljevic, when they were

2 asked when those documents seemed to be authentic as documents which could

3 have come out of there, of course, after seven years, they were quite

4 frank in saying they could not say yes or no. In terms of style, in terms

5 of wording, both had certain reservations, and I think, Your Honours, it

6 would be very peculiar and I think unbelievable, really, if any witness,

7 after 7 years, even had they had those documents in those years in their

8 hands, they could now say: Yes, I have seen these documents. Of course

9 they could be sure about some of those documents. But in those heaps and

10 notions of those papers that came out of the brigade in the course of the

11 war and throughout that time, it would be naive to expect that.

12 The next document which corroborates my submission that it is

13 impossible that the brigade was in Ahmici is the lack of evidence that

14 Mario Cerkez had issued an executive order on the basis or emanating from

15 this Blaskic's order which would have been natural. Perhaps he could have

16 issued an oral order, but then it would have been followed by a written

17 order because we've already seen that that was one of -- a pattern of

18 behaviour.

19 However, we do not find such an order in spite of all the -- of

20 the abundance of documents, and according to Witness Prelec, and although

21 in Zagreb the whole, the entire archive of the Vitez Brigade was found

22 there and we found many documents of the Viteska Brigade at the time when

23 you were deciding which ones to admit and which ones not to admit.

24 Another detail. Josip Zuljevic's claim when he explains what does

25 it mean "our forces", "we", and the like. He says these are HVO forces,

Page 28442

1 Croats, the Croat people. In this regard in the document 673.6, it is

2 literally said, "three our combatants died". And this claim, this fact

3 then reappears in the Viteska Brigade report of the 16th of April at 1735,

4 that is in the afternoon when the things must have settled a bit, and this

5 is D162/2.

6 This report quotes the names -- perhaps, it would be best if I put

7 it on the ELMO. Look at the heading, please. 16th of April, 1993 at 1735

8 hours and what is mentioned here now in the report a few hours before

9 that, it says, "Three of our men," then we would think that these should

10 be members of the Viteska Brigade, "our men". But could you just look at

11 the Croatian version for a second so that you would see what it looks

12 like, the original?

13 I think I won't be jumping to any conclusions if I say that after

14 this was typed out, there were handwritten additions that were made. This

15 report shows that the brigade now identifies the word "our members". Now,

16 one can see that these are three members of the Vitezovi, two members of

17 the regional police. Apropos, the name mentioned under number five is

18 mentioned by a specially protected witness, we don't have to go into

19 closed session just for that.

20 Then civilians from 6 through 11 are obviously added in

21 handwritten notes. I think that this document clearly corroborates the

22 thesis or rather provides an explanation that the brigade during the

23 morning was in full disarray, and we know what the situation was from the

24 very inception. It wrote reports about everything that was going on. And

25 the adjectives such as "our forces" or the pronoun "we" are used, and then

Page 28443

1 become a bit clearer.

2 I can also remind you of Sajevic's testimony, Zeljko Sajevic's

3 testimony along the same lines, practically the number two man in the

4 brigade. He was shown document Z751. That was a report also. A report

5 of the brigade stating that Gacice was cleansed 70 per cent. Again, we

6 have the brigade in that particular locality reporting about activities

7 there.

8 It is not only that Witness Sajevic explained this to us and other

9 persons also spoke about this. For example, on the 21st of September, he

10 testified who were all the persons who were in Gacice, Nikola Mlakic, and

11 then there is D89/2. This unit itself mentions Gacice as the place where

12 this operation was carried out on that day.

13 So Witness Sajevic showed us that in the report, there is one

14 particular matter in terms of this qualification "our forces", that is to

15 say all HVO forces. And then on the basis of the report of this

16 particular unit, in this particular case, the Vitezovi, we see that this

17 unit is claiming that they were there at that locality at that time and

18 that is to say that this is a unit that is not under the command of the

19 accused Mario Cerkez.

20 And to conclude that part, my thesis is and my proposal is for the

21 Court to carefully juxtapose, on the one hand, those pieces of evidence

22 which showed, at least until the very end of the trial that showed that

23 the brigade was not in Ahmici, and when you project all of this among the

24 other evidence, I am sure that the Trial Chamber will see what my initial

25 thesis is, and that is that these documents that came in as part of the

Page 28444

1 Zagreb archives or rather part of them, and I am stating that it is these

2 three, that they were planted, and in that sense, the Trial Chamber is

3 going to decide on the probative value of these documents.

4 They were admitted into evidence, but judging their probative

5 value is a different matter all together. Also the Prosecutor states in

6 support of its thesis that the brigade was in Ahmici, that the persons

7 wounded or killed in Ahmici or some of these persons were members of the

8 brigade. This claim simply was not proven. This simply is not true.

9 First of all, we've already mentioned D161/2, yes, I put it on the

10 ELMO as well, and we saw exactly who was killed on the 16th of April.

11 That is to say that some were killed in Ahmici.

12 Secondly, we brought here one witness, Ivica Semren, who is an

13 example for such a claim made by the Prosecutor. D130/2 was presented in

14 this regard showing that he was wounded in Ahmici as a member of the

15 brigade.

16 I must say that Ivica Semren was exposed to some very difficult

17 cross-examination, and he explained to us this typical story. Yes, he was

18 wounded in Ahmici on the morning of the 16th of April, yes, but in front

19 of his own house.

20 The question is: Where is the proof for this Ivica Semren,

21 specifically, and two or three other persons for whom such documents was

22 provided, where is proof of these persons being members of the brigade

23 precisely on the morning of the 16th of April?

24 We have presented a great deal of evidence, and I believe that

25 there is no point in reiterating this, not only in terms of the

Page 28445

1 establishment of the brigade on the eve of the conflict, but also in terms

2 of the establishment of shifts in the military which, apropos, was not a

3 special characteristic of the Viteska Brigade, it was a modus operandi in

4 other municipalities, in other parts of Bosnia as well, and not only for

5 the HVO.

6 So the crucial question is the following: If one claims that a

7 soldier was wounded at a given locality at a given time when a crime was

8 committed, if that is the basis for establishing command responsibility,

9 then it has to be ascertained that precisely that person was at that

10 particular time a member of the brigade, not to talk about other standards

11 that a nexus has to exist that if such a person was at such a locality at

12 such and such a time of his own free will without any order issued by his

13 commander then, again, this cannot be referred to in this way.

14 You have heard a lot about persons with the same names. This was

15 not Defence tactics, this is the actual situation. Identity can truly be

16 established only with the existence of all identification details

17 concerning a particular person. I'm going to mention to you only a few

18 names that you must have remembered yourselves by now. Vlado Santic, at

19 least three such persons. Ivica Drmic, at least three such persons.

20 We've heard this from witnesses. I'm just repeating it. Ivica Miskovic,

21 apropos, perhaps this is a very good example the last or rather the

22 penultimate witness we had. His name is Ivica Miskovic, before that we

23 had another Ivica Miskovic. It is not only that they share the same name

24 and surname, they have the same father's name. Their father's names are

25 the same. They were born in the same year, in the same month.

Page 28446

1 So what is the probative value of such evidence when somebody says

2 Ivica Miskovic, the son of Marko, born in 1958, on such and such a date

3 committed such a crime as a member of the Viteska Brigade. And most often

4 we do not have information about members of the Viteska Brigade except for

5 a list that speaks of shifts in the Viteska Brigade at the front line

6 against the Serbs in February 1992 [as interpreted]. That was a list of

7 shifts, and that is what Witness Sengic spoke about.

8 All the rest are not complete and do not give identification

9 details. Time is also important. If a particular person is identified,

10 was that person, at that particular time, a member of the brigade?

11 Last but not least in this regard, there is no order. There is no

12 executive order issued by Cerkez instructing his troops to go to Ahmici.

13 [In English] Your Honour, there is an error in the transcript. It

14 should be February of 1993, but it doesn't matter. It's obvious, I

15 think.

16 [Interpretation] I would now like to go back to some general

17 circumstances related to intent. If we look at the entire situation

18 starting from 1992, because that is covered in the indictment, how could

19 Cerkez view this from his own point of view? In order to simplify

20 matters, let us try to do the following: I tried, as briefly as

21 possible -- I mean if we look at this line, if that is time, I presented

22 here the posts held by Mario Cerkez, and I would like to remind the

23 Honorable Trial Chamber that in the pre-trial submission that we made, we

24 admitted to all of these particular posts, but also in the supporting

25 material that was handed to us by the Prosecutor before the trial began,

Page 28447

1 and which is only a very small amount compared to what we've received in

2 the meantime, there was no proof of a particular time when Cerkez held a

3 particular post.

4 I would like to subdivide this period -- actually, I would first

5 like to divide it into two stages. During 1992, the Defence is of the

6 opinion, and I don't want to quote various pieces of evidence now,

7 obviously, there was not a conflict between the two ethnic groups in the

8 Lasva River Valley. I am primarily referring to the territory of the

9 municipality of Vitez in this regard. We agree that particularly towards

10 the end of the year, certain incidents did occur, but we also claim that

11 in these incidents, both ethnic groups were both perpetrators and victims

12 to largely the same extent.

13 I don't want to a elaborate on this any further. We mentioned

14 this in our letter, in our brief, rather. We mention Witness Mestrovic.

15 He gave a perfect assessment here and we think that this fully matches the

16 situation as it was.

17 In 1992, or rather at the beginning of -- or even the end of 1991,

18 when Yugoslavia started disintegrating and when the aggressive actions of

19 the JNA started, Cerkez was an ordinary man living in a small town in

20 Central Bosnia. The European Community, the United States of America, and

21 all other important countries in the world, for two or three years,

22 intensively dealt with the problem of Bosnia; with the whole of

23 Yugoslavia, but Bosnia in particular, that that was a particularly complex

24 situation. We heard here about various peace plans, about different views

25 propounded by soldiers, by politicians, et cetera. There were various

Page 28448

1 opinions and there were various assessments. That is why it was

2 impossible to adopt a plan that all the warring parties would accept,

3 because everybody had a view of their own. Plans were changed because the

4 facts changed as well.

5 So my rhetorical question is: How come Mario Cerkez, a man with a

6 modest education, can see from his little town of Vitez what was happening

7 on a wider scope? I'm primarily referring to international conflict. If

8 there was an international conflict, which this Defence opposes - and we

9 have already presented this view of ours and my colleague is going to

10 speak about this more - what would Cerkez's intent imply? Who did he

11 join? The Croat state, the HVO? How can he judge that? How can he

12 perceive this? On the basis of which events? None whatsoever.

13 Also on microlevel. In 1992 Cerkez joined the HVO when it became

14 clear, when it finally became clear to all who was the aggressor and who

15 was the victim, when it became quite clear that the former Yugoslavia,

16 based on brotherhood and unity, is now using the machinery of the Yugoslav

17 People's Army, that everybody was paying for, for attacking people's

18 homes. Isn't that a good motive? Is there anything to be ashamed of in

19 terms of his activities in 1992? All of this has to do with intent.

20 However, finally, and most importantly, because this, after all,

21 involves legal proceedings: De jure, Cerkez never - and there's not a

22 shred of evidence about this - in 1992 Cerkez never held any particular

23 post. Cerkez slowly grew within this staff, this headquarters, which is

24 not really much of an organisation. This is basically a club of

25 volunteers, and we have heard a lot of evidence about this. Although this

Page 28449

1 really was not defined and there is no proof of this, he came almost to

2 the top. He basically became the number-two man. But there is ample

3 proof that all the way until December, when the defence department was

4 founded, was Mr. Skopljak. Cerkez and a few of his colleagues remained

5 for an undefined period of time - one to two weeks, three at the most they

6 sat there at the staff - because the establishment of the brigade was

7 announced. And at the beginning of December, when the brigade was

8 established, Cerkez became commander, or rather deputy commander, deputy

9 commander of the Stjepan Tomasevic Brigade. And again he doesn't have a

10 particular post. De jure, he does not have a particular post.

11 So even if something did happen in Novi Travnik from the time when

12 Cerkez came there, and that is the beginning of December 1992 until the

13 beginning of February 1993, when he in fact became commander of Stjepan

14 Tomasevic, Cerkez is not responsible for that because he does not have a

15 post. De jure he's not commander. De facto he's not commander. And most

16 importantly, at that time in Novi Travnik, there is no proof that any

17 misdeeds were committed or that the members of the Stjepan Tomasevic

18 Brigade were involved in any such occurrences. At that time this brigade

19 had the sole task of holding the front line above Novi Travnik vis-a-vis

20 the Serbs. Had they not kept the line there firm, Ahmici would not have

21 happened, because the Serbs would have taken this entire territory. My

22 client is proud of his participation in all the fighting against the Serbs

23 in 1992 that took place.

24 In terms of 1992, if the Prosecutor is actually trying to

25 say - and I am trying all the time to find a reason why the indictment

Page 28450

1 includes 1992 - I have to say that the HVO and my client, in 1992, were

2 they preparing themselves to attack the Muslims in 1992? Have we seen any

3 evidence of this? It's not only that they were not preparing themselves

4 for such a thing in 1992, at least when I'm talking about my client, but

5 not even on the 15th of April, in the evening, on the eve of the outbreak

6 of the conflict itself, they were doing no such thing. As for the alleged

7 acts that could point to persecution in 1992, I believe that this simply

8 has not been proven.

9 I would like to draw your attention to all the evidence we

10 submitted in this regard, notably, the last package, 162, and I wouldn't

11 like to dwell on that much longer.

12 That Vitez was a strategically important place I think has become

13 quite clear during this case, and I want to draw attention merely to two

14 reports, or rather milinfosums, D121/1 and D122/1, which show which were

15 the motives of the BH army and why did it want to get to Vitez. Of

16 course, we all know that: the explosives factory - I won't go into

17 that - and of course the strategic position of Vitez itself along the

18 roads leading east and west, north and south.

19 I shall not dwell on these various posts anymore. I think that it

20 has become even indisputable from what time to what time did Cerkez hold

21 any one of these posts.

22 And I'd rather speak about the situation on the eve of the

23 conflict, and that is: Immediately before the conflict between the two

24 forces, or rather between the two armies in the Lasva Valley, the Vitez

25 Brigade had been set up. We have adduced a lot -- we adduced a lot of

Page 28451

1 evidence about this - I don't have to waste any time on that - and it was

2 at its embryonic stage. We had our witnesses testify exhaustively about

3 that.

4 What is, however, curious is that had it been set up by the

5 time - that is, organised, structured - the purpose of the structuring of

6 that brigade and that clearly emerges from the whole course of events was

7 to fight against the aggressor. That is, the brigade was organised in

8 such a manner as to satisfy the needs of a static line on the mountains

9 above Travnik and so that this front line could be manned by those shift

10 troops activating and deactivating conscripts living in the municipality,

11 or rather it had no features, organisational features, that would mean it

12 was a proper combat unit. And I'm referring to evidence of Zlatko

13 Senkic - I think he was our first witness - who explained the structure of

14 the so-called R Brigade, which was part of the all-national defence of the

15 former Yugoslavia and in which all parties to the tragic conflict in

16 Bosnia simply copied, because they had no other knowledge. They resorted

17 to what they already knew and what they had.

18 The HVO in full -- observed this concept of R Brigades in full.

19 Those R Brigades were not mobile army units. They were structured,

20 designed for the defence, for the static defence of facilities and

21 positions because, pursuant to the all-national defence concept in

22 Yugoslavia - we heard testimony about it - there was another reserve that

23 was being called up and added to the Yugoslav People's Army, which is a

24 proper professional mobile army.

25 So not only the brigade was not adequately organised, structured

Page 28452

1 until the beginning of the conflict, but even in the concept of its

2 organisation did it contain any elements allowing us to proclaim it a

3 significant military unit [as interpreted]. After all, you have seen from

4 a great deal of evidence, after that chaotic situation in the early days

5 of the conflict, after the break of the conflict on the 16th of April,

6 front lines were formed, and from that on until the peace agreement in the

7 spring of 1994, the brigade did its best to keep those, to hold those

8 lines. That is the only thing. There isn't a single incident in the

9 course of the war to allege that the brigade had been here or there, done

10 this or that.

11 And in that situation, I should like to draw your attention to

12 D160/2, tab 3. There are several mobilisation documents showing that no

13 mobilisation of the brigade for the 6th of April was planned. And then

14 document D57/2, which is a report of the defence office on mobilisation,

15 which shows when the mobilisation began, that that was a procedure and

16 that it took a certain time and how long it took and how many men had

17 responded. And we had witnesses also testifying about this in great

18 detail. The latest document which I mentioned is D57/2.

19 So what do we see on the eve of the conflict? Had it been a

20 planned, large-scale HVO action - that is, attack on the adversary in the

21 Lasva Valley on the 16th of April, which the Prosecution seeks to prove -

22 had that been true, it would have been very strange that nobody had

23 noticed any preparations. And we see that the situation was to the

24 contrary. There are a number of things indicating there were no

25 preparations. We heard testimonies. And then in the set of documents

Page 28453

1 131/2 - no, sorry. D132/2. That was the set of documents adduced with

2 Witness Bertovic - that there was a shift of the Viteska Brigade which was

3 in the usual place, that is, their sector on the mountain above Novi

4 Travnik facing the Serbs.

5 The second shift was about to go to that same front line. They

6 were billeted in the Kruscica Motel, like a few -- like several shifts

7 before them, that is, in the middle of this main stronghold of the main

8 Muslim forces, the 325th Muslim Mountain Brigade.

9 Cerkez gets married on the 15th of April, 1993. Of all the days

10 when he tried to meet the long standing request of his wife, I really

11 don't think that he could have planned it for that day. I don't think it

12 would have happened had he had any knowledge that the war would break out

13 the next day. Cerkez - and I remind you of testimonies - then was a guest

14 at the celebration of the first anniversary of the BH army. That day, on

15 the eve of the war, a meeting took place between Muslim and Croat

16 politicians of the area, and we heard about that from the earliest

17 witnesses in this case. Of course, they said that in point of fact this

18 was a tactical ruse and that a meeting which ended with a good result,

19 they had been invited only to pull a screen over their eyes. But this has

20 never been established. That was just their opinion.

21 We also heard of late plenty -- a great deal of

22 information - there was some testimony, some documents - that on the 15th

23 of April something happened on Kuber. True, the brigade does not have

24 accurate information about it, but it is obvious that it was not getting

25 ready for that; it was not preparing for it. What is quite obvious is the

Page 28454

1 contrary, that the opposite side had been preparing for it. Two days

2 before that, four officers of the Stjepan Tomasevic Brigade had been

3 abducted. And that was no incident, because that, in point of fact, was a

4 pattern of behaviour. Because a day after that Commander Zivko Totic was

5 abducted; a day after that, Travnik; and then again on the eve of the

6 conflict there was an attempt to abduct Darko Kraljevic, a very prominent

7 commander, and we also adduced written evidence about that.

8 At that time Cerkez has no information, has no knowledge that the

9 other party is preparing a conflict, in spite of the incidents,

10 because - that is something we must recognise - these incidents emerged

11 and reemerged in cycles, grew up to a certain proportion or would come

12 down, and therefore he does not have knowledge, or at least there is no

13 evidence to point in that direction, that Cerkez, on the eve of the

14 conflict, knew about any plan. The first information that he received was

15 at a meeting with Blaskic. We hear that he was summoned, that the

16 marriage was interrupted, that he was summoned to a meeting. And

17 witnesses, members of the Viteska Brigade who were at the meeting with

18 Cerkez in the brigade's command said what Cerkez had said on that

19 occasion, and we finally saw the order which then at long last were issued

20 in writing. It was somewhat different, but basically it was exactly what

21 Cerkez had been told that evening.

22 That order contains an element which the Prosecutor strives to

23 show in a different light, and that is the allegation in the last part of

24 that order, which says that the Zrinjski Brigade is to the right, that the

25 civilian police is to the left, that the PP is in the front, and so on and

Page 28455

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3

4

5

6

7

8

9

10

11

12

13 Blank page inserted to ensure pagination corresponds between the English

14 and French transcripts.

15

16

17

18

19

20

21

22

23

24

25

Page 28456

1 so forth. It was Mr. Sajevic who testified about this. He showed it on

2 the map.

3 But what is important? There is nothing new in this information

4 for Cerkez, because that situation has been like that for weeks. Because

5 if we turn the map northward, then to the right, Cerkez's forces - and

6 that night he is between Kruscica and the town - to the right of him is

7 the Frankopan, Zrinski Brigade, the Busovaca to the left, that is, in

8 town, we have the civilian police, because they are always there, and in

9 front of Cerkez, that is, to the north we have the military police because

10 the military policemen for weeks, if not months, had been patrolling the

11 Vitez-Kaonik road.

12 So from this information he cannot learn anything that he does not

13 know already. The strength of the brigade on the eve of the conflict, and

14 that is yet another element, whether somebody used that strength to embark

15 on an offensive action, I would not go into it because there was a lot of

16 evidence here. I repeat that the brigade does not have barracks, that

17 they are based on shifts, that within a certain period of time, which is

18 24 to 48 hours, they can mobilise a considerable number of that potential,

19 obvious potential strength. But according to all the elements, it could

20 have been 250 to 300 men.

21 Recently again from Zagreb documents, there was Z569/1, report on

22 the strength of the brigade on the 22nd of February, 1993. Unfortunately,

23 it was too late, so that we could not show this document to a single

24 witness. It comes from the Zagreb archives and it gives the number, which

25 is roughly the same. But for localities which are indicated there -

Page 28457

1 Zabilje, Kuber, and Busovaca - they say 30 soldiers each. We put

2 it -- and I guess one could find a track of it in the statements of some

3 of the testimonies - Vlado Santic, who was a member of the village guards,

4 who was there - that yes, they in point of fact were a shift, but not 30.

5 It was usually 10, never 30. But this document also more or less might

6 fit into this potential strength of 250 to 300 men, but when -- after they

7 are mobilised, because they live at home. They take shifts, they go home,

8 and then they are civilians again.

9 The task of the brigade, and I've already said that, was only to

10 block a possible attack, and Blaskic said that one could expect an

11 attack. And Witness Bertovic, who was the executor of this, true, the

12 order did not -- about the attack did not reach our sector. Then one must

13 bear in mind that that order -- that that order was not groundless. We

14 could see that in Kruscica there were indeed some BH army forces, that the

15 335th Muslim Mountain Brigade was there. And we heard it not only from

16 Defence witnesses, but also from international witnesses, that Kruscica

17 received -- that is, BH army in Kruscica received reinforcements

18 immediately on the eve of the conflict, which I think shows beyond any

19 doubt that it was the BH army which was preparing the conflict, and

20 therefore Blaskic's assessments seems to have been proven true.

21 And I should like to remind you of two things in this regard.

22 First, the testimony of Ljuban Calic, who said that they ran into -- that

23 not far from Kruscica, they ran into two BH army soldiers who had fallen

24 asleep, and they captured them. And those two said that they had arrived

25 with a new unit a day before, in Kruscica, that is, a new unit of the BH

Page 28458

1 army.

2 Witness of the Defence, E, also confirmed that in Kruscica -- that

3 new troops had arrived in Kruscica on the eve of the conflict. Witness

4 Kalco, commander in Stari Vitez, confirmed that they had started the

5 mobilisation and raised the degree of preparedness. Witness Pojavnik,

6 whom I have already mentioned in the found diary, also confirms the

7 existence of plans. And finally, another document which gives some

8 information and reports about sectors, it is D87/2 and maps prepared by

9 Witness Sajevic.

10 My colleagues already spoke about the book of -- about the log

11 book, Z610/1, kept in Vitez, but I would like to add one thing which I

12 believe they did not mention. Even though this log book is a good

13 document for Cerkez from one important point of view from Cerkez's

14 Defence, because it shows that he was not present at the commander's

15 meeting, at Commander Blaskic's, on the 15th of April, 1993 - that is,

16 that strictly military meeting - there are no criminal [indiscernible]

17 there, but Cerkez even -- wasn't even at that meeting, because Cerkez had

18 a meeting with Blaskic, and one would say after that meeting, that is, had

19 a bilateral meeting, not a meeting of many people.

20 But although this is a very good -- this is very good evidence for

21 Defence, but nevertheless do not see any important difference between the

22 fact that -- between whether Cerkez was -- this discrepancy, whether

23 Cerkez attended a large meeting or a tete-a-tete meeting with Blaskic.

24 Nevertheless, we do not think that this document has much probative value,

25 because many details, when they are juxtaposed with other documents which

Page 28459

1 we have, and about certain places we have a great detail about localities,

2 strength of units, so on and so forth, but a number of details simply do

3 not fit in and I do not have time to go into them.

4 This document was not confirmed by any witness, and I repeat that

5 this document also - I repeat that - was in the hands of a number of

6 intelligence services for years. And many things, as they are written,

7 cannot really be interpreted in a proper way who said what to whom. It is

8 impossible to [indiscernible] said it. And in point of fact, the

9 Prosecution's allegations regarding these documents are contradictory. On

10 the one hand, the Prosecution says this is a very valuable document; and

11 on the other, the Prosecutor says that this document was tailored by the

12 one who wrote it, who compiled it, to conceal the crimes in Ahmici. So

13 the document is either authentic or it is not. It is either veracious or

14 it is not. And I do not think in criminal law we can accept documents or

15 witnesses who are credible up to a point and are not credible from that

16 point on.

17 JUDGE MAY: Mr. Kovacic, it's 1.00, is that a convenient moment.

18 MR. KOVACIC: Perfect. I just wanted to conclude the sentence.

19 JUDGE MAY: Finish what you wanted to say.

20 MR. KOVACIC: [Interpretation] I merely wanted to conclude that

21 this document comes from Zagreb and now I only have a few more sentences

22 regarding the crime of persecution in the factual part. Thank you.

23 JUDGE MAY: And then is Mr. Mikulicic going to address us?

24 MR. KOVACIC: That's correct, sir.

25 JUDGE MAY: I think you have just over an hour left. There's no

Page 28460

1 need to take all of that, Mr. Mikulicic. Yes, we'll adjourn until half

2 past 2.00.

3 --- Luncheon recess taken at 1.02 p.m.

4 --- On resuming at 2.35 p.m.

5 JUDGE MAY: Yes, Mr. Kovacic.

6 MR. KOVACIC: Thank you. Your Honours, I will continue for about

7 five minutes and then my colleague, Mr. Mikulicic, will use the rest of

8 our time.

9 [Interpretation] In conclusion, may I say that with regard to the

10 situation of the brigade on the eve of the conflict, there is yet one more

11 question: Could Cerkez, in fact, have commanded such a unit that was not

12 organised for confrontation with the BH army?

13 In de jure terms there is no contest, we admitted that he is

14 commander of the brigade. As for his de facto possibilities of commanding

15 the brigade that was not organised, we believe that this was not proved,

16 that there is not sufficient evidence in order to draw a conclusion beyond

17 any doubt.

18 As for persecution, we managed to deal with that rather

19 extensively in the final brief so I'm not going to repeat that. We would

20 also like to subscribe to what our colleagues from the Kordic Defence

21 said. I just wish to draw your attention to two documents that are

22 perhaps not all that important, but are characteristic. The first one is

23 the one that is on the ELMO, it is D126/2.

24 As regards a time period when it seems that there were incidents

25 in the town of Vitez and persecution can be mentioned within that time

Page 28461

1 period, I should say that the HVO government employed Hakija Cengic at the

2 school, a job for which he met all necessary requirements. Hakija Cengic,

3 before that, was commander of the Territorial Defence in Vitez which was

4 absolutely under the control of the Muslim side.

5 This is a document that we wanted the Court to see. As for the

6 allegations made by some witnesses especially in the initial stages of the

7 trial, that it was, as a rule, Muslims who were dismissed from work, we

8 did not hear of any witnesses talking about dismissals from the SPS, and

9 that was the largest employer there, saying that this was due to a decline

10 in production because of the war, et cetera. This is a document that we

11 tendered earlier on. That is number D93/2. That shows that Cerkez was

12 one of the persons who was also on this waiting leave. Witness Sejo

13 confirmed this, that he was on leave himself.

14 Finally with regard to persecution, yet another document, D92/2.

15 I'm sorry, I put the Croat side there. This is the English version. This

16 is a document which shows that Cerkez's family, on the eve of the war, in

17 1990, gave a voluntary contribution for building the mosque in Kruscica.

18 I think that this speaks in itself of mens rea, intent, and it would be

19 very difficult to get a different kind of upbringing in such a family.

20 I would also like to mention two more witnesses that require a bit

21 of further explanation. Colonel Morsink is the first one I wish to

22 mention. I wish to draw your attention to a few details in order to put

23 his statement in that context. One fact that astonished me, and I was not

24 the only one, was that Colonel Morsink, at the very outset of his

25 testimony, gives certain value statements in terms of Mario Cerkez's

Page 28462

1 position in the brigade, et cetera, and this happened on the 17th of

2 April, 1993.

3 To be very clear about this, in this trial, we've been dealing

4 with this for 140 trial days, and we have seen that a lot of things have

5 changed their form, and did not have a single meaning only. According to

6 his own testimony, Morsink knew about the former Yugoslavia, what he

7 learned when he travelled there as a child with his parents, and then in

8 Zagreb where he came as an ECMM monitor, he spent two days there at a

9 meeting, at a seminar, and we have evidence as to how monitors were

10 prepared for this mission.

11 However, from day one as soon as he arrived, Morsink knew

12 everything. Number one, first of all he doesn't even know the name of the

13 brigade. He said that Cerkez was the commander of Stjepan Tomasevic and

14 that was a formation that was at least 7 or 8 weeks old at that point in

15 time. His report on refugees, Z882, I would like to draw your attention

16 to that. Two families are referred to in it. Two families were thrown

17 out of their houses by some criminals, may I use that word.

18 We brought Anto Miketa, I think, a very reliable witness, who

19 explained that it was impossible because at that time, it was impossible

20 to have refugees staying at the school because the school was at the front

21 line. Of course I'm not trying to say that Colonel Morsink is not saying

22 the truth; however, in this chaos, in this nightmare, of course he had

23 confused localities. That is the only explanation.

24 As for his approach to the Catholic church in Vitez, Fra. Drago

25 Pranjes spoke about that. The ECMM came to inspect it several times, all

Page 28463

1 the time on the basis of the information received from the other side that

2 there were 300 detainees in the church. You heard this testimony. I

3 would also like to draw your attention to the schematics that were used.

4 One was used by Morsink and the other one has to do with this subject,

5 this is Z2535.1 and Z283.3.

6 It is obvious that the ECMM did not know a thing. For example, in

7 one of these documents, in Novi Travnik, at the moment when the conflict

8 broke out, Esad Landzo - and we heard about him several times, that he was

9 the commander of the BH unit in Travnik - according to the ECMM schematic,

10 he is an HVO commander in Novi Travnik, et cetera, et cetera, et cetera.

11 Nevertheless, Colonel Morsink, when he came to be cross-examined a

12 few days ago, we tried to explain the difference between the two

13 statements made, that there were 72 detainees, or 300 detainees, that he

14 remembered later. He accepted that Borislav Jozic was the representative

15 of the HVO in the commission for exchange, and not as a member of the

16 brigade, because the commission was at a higher level. And on that basis

17 we introduced lists of detainees in Dubravica which show that Dubravica is

18 under the control of the Vitezovi and lists of the BH army which show that

19 a considerable number of detainees at that moment were members of the

20 army.

21 As for Witness Zlotrg, who also paints a rather partial picture, I

22 would like to mention that he said that Cerkez, with a group of soldiers,

23 seized Cickovic's cafe. We brought in a witness who explained what

24 happened with regard to that cafe. That is witness Dragan Cickovic.

25 Zlotrg was also the one who spread the rumour -- or rather, he's the one

Page 28464

1 who said that he had heard rumours about the killing at the hotel, that

2 rumour had it that Cerkez was the perpetrator. The Prosecutor gave up on

3 this altogether later, but it is interesting that he, as a crime

4 technician who was there carrying out the investigation, relied on rumour

5 in his statement rather than on facts. Unfortunately, during the war, his

6 brother and his sister-in-law were killed, and I believe that that is the

7 motive why he talked about what he knew and what he did not know.

8 I don't want to make any further reference to similar matters. We

9 have dealt with this in the final brief to the best of our knowledge and

10 ability, and I would now like to call upon my colleague to continue with

11 our defence.

12 MR. MIKULICIC: Thank you, Your Honours. [Interpretation] Your

13 Honours, on the 12th of April, 1999, in this same courtroom, we started

14 with Mr. Nice making his opening argument. He expressed his hope that

15 this case would not be burdened with many documents. That claim is

16 actually in pursuit of a thesis that was articulated by the Prosecutor in

17 their Pre-Trial brief, and I shall quote it: [In English] [Previous

18 translation continues] "... may leave little documentary evidence of their

19 crimes behind."

20 [Interpretation] But now that this case is drawing to an end, I

21 think it is more than obvious that the Prosecutor got it quite wrong in

22 his forecast. This indeed became a case that included an enormous

23 quantity of documents and other evidence. Not a single case before this

24 one at this Tribunal was so burdened with many documents and many

25 witnesses. The quantity of documents is literally measured in metres, and

Page 28465

1 thousands of pages and dozens of videotapes. That is the situation as it

2 stands.

3 This situation, objectively speaking, worked to the detriment of

4 our small team of Mr. Cerkez, that felt throughout the trial this heavy

5 burden on its shoulders. Speaking quite pragmatically, there is no doubt

6 that that party in proceedings like this has more human resources, is

7 certainly in a position of superiority as compared to the opposing party,

8 which has only a very limited number of lawyers and associates.

9 Your Honours, I am not saying this in order to complain about the

10 position of the Cerkez Defence; I am saying this because I believe that

11 these circumstances, which indeed go into the field of circumstances

12 related to the trial in general, certainly speak about a comprehensive

13 picture with regard to this trial; namely, there is no doubt that our

14 colleagues from the Office of the Prosecutor have an enormous team which

15 can work in the field as well and obtain a large number of documents and

16 body of evidence which can be subsequently analysed well. These

17 comparative advantages, as compared to the limitations of the Defence,

18 were used very skillfully - we must admit that - by the Office of the

19 Prosecutor during this case, and this was used as some kind of procedure

20 tool.

21 How did this happen? First of all, the discovery of documents to

22 the Defence, as a rule, came at a time when, in terms of procedure, this

23 suited the Prosecutor the best, usually just before an important

24 testimony, when the Defence was supposed to get prepared for that

25 testimony.

Page 28466

1 JUDGE MAY: Mr. Mikulicic, you say you aren't complaining, but

2 that is precisely what you are doing. If there had been any unfairness in

3 what the Prosecutor was doing, they would have been stopped. That was the

4 role of the Trial Chamber. Now, the trial is now over, and you must

5 address us, please, on the evidence and your submissions as to the law.

6 But to complain about the trial is unnecessary and, if I may say so, wrong

7 at this stage.

8 MR. MIKULICIC: [Interpretation] Your Honours, needless to say, and

9 with all due respect, it is -- Mr. Cerkez's Defence view is that the

10 position here is also very important if one is to acquire a final

11 picture. However, I will not dwell on it any longer. I'd merely like to

12 illustrate my point and show -- to show something to the Chamber and

13 everybody present here.

14 During the testimony of Captain Angus Hay - and he was the witness

15 for the Prosecution - the Defence received some of the exhibits which were

16 marked as a component part of Captain Hay's testimony, and among those

17 things there was a tape V00-1327. This mark on the videotape, or rather

18 on the cover, was a compilation of video recordings of BBC news about

19 Central Bosnia.

20 I wish to draw your attention to a specific news item from that

21 compilation made by Mr. Martin Bell, a well-known BBC correspondent. This

22 seems at first glance to be very relevant because it says how a Croat

23 patrol, in a mission south of the town of Vitez, is trying to recapture

24 the trenches which the Croats lost to the Muslims during their attack.

25 And it also says how the leader of the HVO patrol was wounded and

Page 28467

1 how a helicopter, regardless of the no-fly zone, was trying to help.

2 Well, we thought that this was evidence to corroborate the thesis

3 that the Republic of Croatia used helicopters to help the HVO in Central

4 Bosnia. But, as you will see for yourselves, what is the value of that

5 piece of evidence?

6 Could the engineering booth please show us the tape which as I

7 have said does not last more than 55 seconds.

8 [Videotape played]

9 MR. MIKULICIC: [Interpretation] You could go on. Will you just

10 show it to the end, please?

11 [Videotape played]

12 MR. MIKULICIC: [Interpretation] Thank you. And so, Your Honours,

13 this is one of the examples of some of the evidence we received during

14 this case. As you could see for yourselves, this is a recording, and it

15 says that Martin Bell did it from BBC News which, in point of fact, shows

16 American actor, Arnold Schwarznegger, in an alleged action south of

17 Vitez. So this is completely useless, and I merely mention it as an

18 illustration of what the Defence had to deal with.

19 Of course, the disclosure of a useless and nonsensical material

20 was a major burden on the Defence and made us move away from more

21 important and relevant objectives, but let me move on. Even though this

22 may be the most drastic example of --

23 JUDGE MAY: Mr. Mikulicic, what is the point of this 20 minutes

24 that we've had? Are you to complain that this has been a difficult

25 trial? We have frequently commented on the amount of material that has

Page 28468

1 been disclosed and the problems which it has caused to everybody and we've

2 had in mind those problems.

3 Equally, we have to have in mind that if material had not been

4 disclosed, no doubt the Defence would have been the first to complain.

5 Now, this means that there is a balance, obviously, between the disclosure

6 of a great deal of material and the burden which it puts upon those

7 conducting the trial. We have had those matters in mind, the trial is now

8 over.

9 As I say, your time is to be devoted to dealing with your

10 submissions upon the evidence and upon the law in relation to your

11 client.

12 JUDGE ROBINSON: And if you are saying, Mr. Mikulicic, that the

13 documentation was so voluminous as to have led to some unfairness for your

14 client, then that is a matter that you should address elsewhere.

15 MR. MIKULICIC: [Interpretation] I appreciate your comments, Your

16 Honours. I am saying this for two reasons only, the first one is to show

17 with this drastic example what is the value of materials which come from

18 sources such as the TV news, TV clips, newspapers and so on and so forth,

19 highly dubious. And I should like to invite the Chamber to bear this in

20 mind during their analysis of this material.

21 The second reason I bring this up is to answer the suggestion of

22 His Honour Judge Robinson, namely that such an imbalance of evidence has

23 placed the Defence in an inferior position and thereby affected the

24 fairness and equality of arms of both parties in the Court, but I will not

25 go into that any more.

Page 28469

1 Your Honours, the subject of this trial is a broad context of an

2 armed conflict at a given time at a given place or, rather, a very

3 confined space which is, insofar as my client is concerned, Vitez and its

4 environs. This conflict which was indubitably an armed one, the

5 Prosecutor defined as an international conflict. On the other hand, we

6 refute such qualification emphatically, and I put it to you that this is

7 no doubt an internal conflict, a local conflict of two armed components of

8 the joint armed forces, the army of Bosnia and Herzegovina.

9 May I remind the Court that the evidence adduced in this case

10 corroborate this thesis beyond any doubt. These evidence are the

11 agreement Petkovic/Halilovic concluded as testified by UNPROFOR,

12 represented by General Morillon and ECMM represented by (redacted)

13 (redacted) which is Exhibit D24/1.

14 Another such example is the memorandum of friendship concluded

15 between the president of the Republic of Croatia Tudjman and the president

16 of the Republic of Bosnia-Herzegovina Izetbegovic, which was admitted

17 under number D98/1. Then the joint declaration of both presidents,

18 Tudjman and Izetbegovic, admitted as Exhibit D50/2.

19 All these documents, the contents of all these documents, in

20 addition to all the other elements, show that the HVO was an integral part

21 of -- integral forces of the army of Bosnia-Herzegovina, and these

22 documents were signed by presidents of two allegedly belligerent

23 international legal entities.

24 The international conflict, under the definitions provided by the

25 Geneva Conventions of 1949, request the existence of an armed conflict

Page 28470

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3

4

5

6

7

8

9

10

11

12

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14 and French transcripts.

15

16

17

18

19

20

21

22

23

24

25

Page 28471

1 between two or more high-contracting parties. This is the definition of

2 the international -- of an international conflict according to the Geneva

3 Conventions.

4 Now, which was the cause between Croats and Muslims in

5 Bosnia-Herzegovina and in Central Bosnia in particular, that could be only

6 one, and that could be the attack of the former army of Yugoslavia, and

7 the former JNA, and the army of Republika Srpska on the population of

8 Bosnia-Herzegovina.

9 The result of this attack was the ethnic cleansing and a flood of

10 refugees who, from the territories occupied by the JNA and the army of

11 Republika Srpska, arrived in territories which had not been occupied.

12 This resulted in a huge increase of the population and then imbalance in

13 the social culture and in the other population structure, and which also

14 created a fertile soil for widespread crime and tensions which began to

15 appear between the two peoples, Croats and Muslims in Bosnia-Herzegovina.

16 Let me go back to the international conflict and conversely to

17 what is claimed by the Prosecution, the Defence submits that it did not

18 exist at that time covered by the indictment and at a place covered by the

19 indictment. It needs to be said that one of the most important objective

20 tests for the existence of an international conflict is Article 4

21 paragraph 2 of the 4th Geneva Convention which says that, "The population

22 of a state covered by the Convention are not protected by this Convention

23 if they happen to be in the territory of the alleged state of war with

24 which they still have a normal diplomatic relations." [as interpreted]

25 In this case, a number of exhibits were adduced on this, and I

Page 28472

1 will come back to this later. But I should like to also remind of Article

2 2, paragraph 1, of the Geneva Convention of 1949 which says that, "The war

3 need not be declared, but" - and this is important - "at least one of the

4 parties to an international conflict must be aware of the nature of that

5 conflict." [as interpreted]

6 In practice, this means that if there are no explicit statements

7 of a state to the fact that it believes itself to be involved in an

8 international conflict, then there are also -- then such international

9 conflict will draw some practical consequences, that is, if diplomatic

10 relations are broken, the property of the opposite side of the adversary

11 seized, trading contracts are broken, nationals of the adversary are

12 managed and so on and so forth or expelled and -- but nothing, nothing

13 like had happened between the Republic of Croatia and the Republic of

14 Bosnia-Herzegovina. The diplomatic relations ever since their

15 establishment have never been broken. To this day, trading agreements

16 which existed were not broken.

17 Neither of the states, Croatia nor Bosnia-Herzegovina, ever

18 expelled from their territories the nationals of the other state. There

19 was no seizure of any property of the nationals of the other state, and

20 for these -- from these practical manifestations, the Defence concludes

21 that neither of the parties to this armed conflict, and by this I mean the

22 Republic of Croatia and the Republic of Bosnia-Herzegovina, neither of

23 these two parties was aware that they were in a mutual armed conflict,

24 naturally, because that conflict was not at such a level.

25 Now, how, under the given circumstances, did officially through

Page 28473

1 his representative [as interpreted], the United Nations, five days after

2 the crime in Ahmici on the 21st of April, 1993, how did the state of

3 Bosnia-Herzegovina react?

4 JUDGE BENNOUNA: [Interpretation] Mr. Mikulicic, excuse me, I'm

5 going to have to interrupt you, just briefly. I believe that the Chamber

6 should like to hear from you which are the criteria, which are the

7 criteria which you use to say that the conflict is international and not

8 international? Because what you have described so far is what one calls a

9 conventional war, a classical war between states without the rupture of

10 diplomatic relations and so on so forth. Nothing more than that.

11 All the more so, as classical warfare, as you know, it is not as

12 it was some time ago, to begin with, since the aggression has been

13 pronounced illegal and it is prohibited by the United Nations Charter. So

14 we talk about an internationalised conflict, not an internal conflict but

15 a conflict which becomes internationalised, which becomes international.

16 It is de facto not de jure and I think one should go back to that, to that

17 particular criteria and the criterion of warfare of international nature

18 which is laid down by jurisprudence and proceed from there.

19 MR. MIKULICIC: [Interpretation] Your Honours, of course I shall

20 speak about that too. However, I wished to recall the factual state of

21 affairs, because every legal conclusion, every legal opinion is based on

22 facts. Law is not an objective in itself. Law comes to full expression

23 when it is applied to concrete facts and concrete life. That is why I

24 thought it was important to point these matters out.

25 JUDGE BENNOUNA: [Interpretation] Excuse me, but if you want to, I

Page 28474

1 shall tell you what these two criteria are that were used in the

2 jurisprudence of this Tribunal and the Appeals Chamber. First of all,

3 there is the existence of direct intervention of a foreign state, or

4 rather the armed forces of a foreign state, and then that is the cause of

5 trouble. Secondly, global control of a foreign state over troops engaged

6 in another state. So these are the two criteria involved.

7 If you wish to challenge the international nature of the conflict,

8 then you have to take into account these two criteria that are applied to

9 the situation in which the two accused in this case were involved; that is

10 to say, in the conflict between the Croat entity, on the one hand, that is

11 to say, the Bosnian Croats and the Bosnian Muslims.

12 MR. MIKULICIC: [Interpretation] Your Honours, in our final brief,

13 as far as we could take into account our objective possibilities, we

14 developed on that subject. In my final argument I wish to point out some

15 facts which I believe the Honourable Trial Chamber should bear in mind

16 when determining which legal qualification they are going to apply in this

17 particular case.

18 Of course, I am aware of the Tadic appeals decision and also the

19 so-called overall control test that was established there. The Defence is

20 aware of the fact that this test has, in a way, become a precedent for

21 cases before this Tribunal. However, the Defence brings into question

22 that test as well, not because it thinks that the test is wrong. On the

23 contrary; the test is absolutely applicable. However, this test is

24 applicable for a concrete case or for a case that is very similar in terms

25 of its -- of the substance involved, that is to say, similar to the Tadic

Page 28475

1 case.

2 We claim that the facts, the very essence of the conflict between

3 the Bosnian Croats and the Bosnian Muslims does not have equal or similar

4 points in common with the conflict between the Bosnian Croats and the

5 Bosnian Muslims, on the one hand, and the JNA and the army of Republika

6 Srpska on the other hand. We believe that there are major differences

7 involved. We mentioned this in detail in our final brief. We believe

8 simply that the precedent from the Tadic case cannot be transplanted, so

9 to speak, in this case.

10 I appeal to the Honourable Trial Chamber precisely because of such

11 a view held by the Defence to look at the specific facts involved in this

12 case and to decide, on that basis, to decide whether they are going to use

13 the overall control test from the Tadic case in this particular case as

14 well.

15 I'd just wish to remind the Honourable Trial Chamber of the

16 official position of Bosnia-Herzegovina, which was articulated through a

17 letter addressed by the ambassador extraordinary and plenipotentiary of

18 the BH to the United Nations, Mr. Muhamed Sacirbey, who, when speaking of

19 the conflict in Central Bosnia, qualified them as conflicts between local

20 leaders that were caused due to a lack of humanitarian assistance, a

21 shortage of weapons, et cetera. If a state says to the General Assembly

22 of the United Nations through its own envoy that its position on a

23 conflict that is going on in the heart of its territory, and puts it in

24 this way, then that state, the Republic of Bosnia-Herzegovina, indeed does

25 not believe that this is an international conflict.

Page 28476

1 Now I would like to say something about detention. Of course, in

2 our final brief we dealt with this. I don't want to repeat what we have

3 said, but I would like to highlight a few important matters. The

4 indictment lists detention centres; namely, Kaonik, the cinema in Vitez,

5 the veterinary station in Vitez, the SDK offices in Vitez, the chess club

6 in Vitez, and the elementary school in Dubravica. These centres are

7 mentioned in the indictment as centres for the internment of Bosnian

8 Muslims. The Defence wishes to state the following: Neither the prison

9 in Kaonik, nor the veterinary station in Vitez, nor the chess club in

10 Vitez, or the SDK building in Vitez, or the elementary school in

11 Dubravica, cannot in any way, on the basis of the evidence presented, be

12 linked to Mr. Mario Cerkez, our client, the commander of the Viteska

13 Brigade.

14 Evidence was put forth in this case that shows that, for example,

15 the prison in Kaonik was under the supervision of the military police, the

16 4th Battalion of the military police. They also recruited guards for that

17 prison, and at the same time it was under the jurisdiction of the military

18 court in Travnik.

19 The veterinary station in Vitez is also part of evidence showing

20 that this was a place where members of the special purposes unit of

21 Vitezovi brought various individuals. The same goes for the SDK office,

22 for the chess club, and Dubravica.

23 As for the cinema building in Vitez --

24 JUDGE BENNOUNA: [Interpretation] Excuse me, Mr. Mikulicic. I had

25 a problem with the interpretation, the French interpretation.

Page 28477

1 MR. MIKULICIC: [Previous translation continues] ... Your Honour.

2 JUDGE BENNOUNA: It's okay now. Thank you.

3 MR. MIKULICIC: [Interpretation] As for the cinema building in

4 Vitez, as it is popularly known, this Honourable Trial Chamber had the

5 opportunity of hearing testimony and seeing documents related to that

6 building. Without going into any details, there is no contest that the

7 headquarters of the Viteska Brigade was there and that Mr. Cerkez had his

8 office on the first floor. Also, there is no denying the fact that the

9 radio station was there, the cafeteria, the headquarters of political

10 parties, and the Vitez TV station for a given period of time. So there

11 were quite a few tenants there, so to speak. Also, there is no denying

12 the fact that as of the 16th of April, 1993, the military police started

13 bringing Bosnian Muslims to the school, able-bodied military-age men.

14 Numerous witnesses testified before this Trial Chamber, persons

15 who were in such a situation, and, as a rule, all said that they were

16 brought into custody by members of the military police. Also, there is no

17 doubt that the military police guarded these individuals, regardless of

18 the level of discipline that was present and that the witnesses assessed

19 as very loose.

20 However, the Prosecutor claims that this is the military police,

21 but the so-called Brigade Military Police, which was under the control of

22 the commander of Viteska Brigade, our client, Mr. Cerkez. We do not

23 accept such a position, and we claim that the Brigade Military Police,

24 from mid-April until the end, and all the way up to the month of July in

25 the same year, was not under the command and control of the commander of

Page 28478

1 the Viteska Brigade.

2 I would like to recall the evidence that we have presented in this

3 regard and the documents that we've produced. This conclusion is based on

4 all of that, so I don't want to go back to it anymore. Nevertheless, I

5 would like to say a few words about the possible legal grounds for such

6 action.

7 Of course, every deprivation of liberty of another person is an

8 inappropriate action, and in most cases it is illegal as well. However,

9 was this the case in this specific situation? Of course, it is up to the

10 Honourable Trial Chamber to decide on this. However, it is my duty to

11 present the position of the Defence. I shall try to be as succinct as

12 possible.

13 The fact is that on the 16th of April an armed conflict broke out

14 between the Bosnian Croats and the Bosnian Muslims in Vitez. The fact is

15 that the town of Vitez was shelled and attacked by the BH army and that at

16 the same time, in the town of Vitez, which was always a mixed-ethnic

17 community, at that time had quite a number of military-age Muslim males.

18 It is also a fact that most of these men were interned at the centres that

19 were mentioned earlier on.

20 What would be the legal grounds for such internment? I should

21 like to remind the Honourable Trial Chamber of two cases, and may I

22 suggest that you look at them as possible precedents, that is, Korematsu

23 versus the United States of America and Hirabayashi versus the United

24 States of America. One is from 1943 and the other one from 1944.

25 Korematsu versus the United States of America deals with the

Page 28479

1 internment of American citizens of Japanese origin on the west coast of

2 the United States of America in 1942. At that time the United States of

3 America was at war with Japan. Although no operations were taking place

4 on the territory of California, nevertheless the military commander of

5 that area, the west coast, issued an order for American citizens of

6 Japanese extraction to be interned at places designated for that. This

7 indeed did take place.

8 Please bear in mind the fact that no war operations whatsoever

9 were waged in California or even a thousand miles away from California.

10 What happened? After the end of the war and the danger of war,

11 Mr. Korematsu took the United States to court. Not to go into all

12 details, his case was refused on the grounds that the internment of

13 American citizens of Japanese origin was not carried out for the sake of

14 persecution but for safety and security reasons, namely, to protect the

15 United States of America from possible work by this segment of the

16 population in espionage and in jeopardising the security of facilities of

17 national importance, et cetera.

18 Later, the Congress of the United States of America and the

19 Supreme Court of the United States of America confirmed this legal

20 position and this legal opinion. What can we conclude on this basis?

21 The Defence concludes that under the given circumstances, and

22 those were war operations, there is no doubt about that, a party to a

23 conflict can, under certain circumstances, without violating legality

24 temporarily, on a short-term basis, intern part of the population which is

25 of military age and able-bodied which could carry out espionage or

Page 28480

1 subversive activities. Was this the case in Vitez? Unfortunately, in

2 this case, this has not been fully clarified because we did not have any

3 evidence to that effect. That is we were not shown a single written order

4 or decision ordering such internment so that de jure, this fact has not

5 been clarified, and de facto, that is what happened.

6 It is up to this Trial Chamber to assess the lawfulness of such

7 conduct, and we submit that this short internment was motivated solely by

8 reasons of security. And let me add one more thing. Without aspiring to

9 use the tu quoque maxim, the same situation could be seen on the other

10 side of the armed conflict, that is, the Bosnian Muslims. The Bosnian

11 Croats, in areas affected by combat operations, were likewise detained and

12 temporarily interned. We had a witness who said that he requested an

13 explanation from Croats about his detention and that he was told that it

14 was done for security reasons.

15 Ergo, if we look at Central Bosnia as a theatre of armed conflicts

16 of two opposed parties, then we see that, de facto, the events developed

17 as if in a looking glass. Why? Because those are not two separate

18 worlds. It is basically one world which, due to the interplay of

19 political and historical circumstances, shared a territory for dozens of

20 years, cooperated, struck friendships, intermarried, and established all

21 sorts of mutual relations, and naturally all people, regardless of their

22 faith or ethnic origin in that area, de facto, share historical heritage

23 and, de facto, think along the same lines.

24 Your Honours, the same approach can also be applied to another

25 question in this case, and that is the question of forced labour, and I

Page 28481

1 should like to tackle that now.

2 Even though the Defence declines any association of our client

3 with forced labour, and we go into that more exhaustively in our final

4 brief, I should nevertheless like to draw to the attention to some legal

5 grounds which, in Mr. Cerkez's Defence's view, the Chamber ought to bear

6 in mind.

7 To begin with, it is common Article 3 of the Geneva Conventions of

8 1949, then additional protocol too of 1997, and the national legislation,

9 that is, decrees which lay down the labour obligation of the former

10 Yugoslavia and the Republic of Bosnia-Herzegovina as the national

11 authorities.

12 Forced labour in an internal conflict that I speak about is not

13 prohibited either by the initial protocol or by the Geneva Conventions.

14 It is allowed under certain circumstances, and these circumstances are

15 that persons mobilised for forced labour do that under identical or

16 similar conditions under which the local population perform such forced

17 labour. By this, of course, the text means the local population which is

18 not the opposite party to the conflict, and this is what we see happened

19 in our particular case.

20 Numerous witnesses testified here, Croats and Muslims alike, and

21 Serbs, that is representatives of the entire population of Vitez and its

22 environs who described in detail how they were recruited for forced

23 labour, how it -- what it all looked like, and what was the purpose of it

24 all.

25 Legally speaking, the national legislation of the former

Page 28482

1 Yugoslavia which was accepted as the national legislation in the Republic

2 of Bosnia-Herzegovina after the proclamation of independence regulates

3 this matter by stipulating that in case of immediate danger of war or the

4 outbreak of war, the army, in a broad sense of the word, is authorised for

5 the building of military fortifications, shelters, so on and so forth,

6 that it is authorised to recruit a certain number of people and use them

7 for that purpose.

8 A few days ago, Your Honours, we had Dr. Halid Genjac, the

9 Prosecution's witness in the rebuttal case. Mr. Genjac is a member of the

10 Presidency of the Republic of Bosnia-Herzegovina. He replaced the former

11 president of the Presidency, Mr. Alija Izetbegovic. He is the future

12 president of that Presidency. There is no doubt that he is one of the

13 highest-ranking and most prestigious politicians in today's Republic of

14 Bosnia-Herzegovina but also, beyond any doubt, a witness to the events in

15 the critical period of time.

16 Mr. Genjac was shown an exhibit, a milinfosum, which was admitted

17 under D354/1 and which says that the BH army used Bosnian Croats to dig

18 trenches. The witness was invited to comment on that fact and he did. He

19 said that that, of course, was true, but that that action was not

20 motivated by some criminal intent or action and it was a matter of law,

21 the mobilisation of able-bodied -- of the able-bodied population, that is,

22 by mobilising some of the population for participation in armed units and

23 another part of that population for the digging of trenches and that is

24 the Defence submission.

25 There is nothing discriminatory in such an activity. Necessity

Page 28483

1 required that this measure be put in force, and we see how one of today's

2 leading politicians and one of the witnesses of the time thinks about this

3 and how -- and what is the interpretation that he gives to it.

4 Your Honours, regardless of Mr. Nice's thesis which we heard

5 yesterday that the titles, ranks, prima facie, also suggests guilt, this

6 is something that the Defence cannot go along with evidently. But

7 regardless of that, the Defence should like to point out the three

8 important telling facts.

9 Colonel Bob Stewart testified before this Chamber as a witness for

10 the Prosecution on the 17th of January this year. Colonel Stewart was the

11 commander of the 1st Battalion of the Cheshire Regiment with headquarters

12 in Vitez between the 22nd of August, 1992 until the 11th of May, 1993.

13 At that time, Colonel Stewart was number one in UNPROFOR on the

14 ground. He is a credible witness, absolutely no question about that, and

15 under the given circumstances, a person who was well informed, and Colonel

16 Stewart has written a book, "Broken Lives". It describes his experience

17 from the ground at the given time.

18 I wish to draw the attention of Your Honours that this book has

19 327 pages. Mr. Mario Cerkez's name is mentioned in six places all told

20 and in 15 lines. No characterisation of his personality, no assessment of

21 his behaviour, of his conduct.

22 Now, what conclusion can one draw from that? It is evident that

23 Colonel Stewart did not seem to think, nor did he see Mr. Cerkez as a

24 relevant public figure in the territory of Vitez, and that is indeed --

25 that that was indeed so was shown by his testimony before this Court. He

Page 28484

1 was examined in chief by Mr. Nice and after this was concluded, and it

2 took slightly less than two hours, it was Mr. Sayers who undertook the

3 cross-examination.

4 Mr. Sayers introduced himself, said he was representing the

5 Defence for Mr. Cerkez [as interpreted], turned to our bench and said and

6 Mr. Cerkez's Defence is represented by Mr. Kovacic and by my humble self.

7 And Colonel Stewart's reaction, who was sitting here in the stand, "Is

8 Cerkez being tried here?" That is, after two hours spent in the

9 courtroom, he did not even know, he was not aware that Mr. Cerkez was also

10 on trial. And the trial is about the Lasva Valley, it is about the events

11 in the Lasva Valley, that is Ahmici first and foremost. This fact is in

12 the eyes of the Defence very, very, indicative.

13 The second point, another witness for the Prosecution in this case

14 was Mr. Nihad Rebihic. On the 13th of October last year, he testified

15 here, and just to let me briefly remind the Court, Mr. Rebihic was the

16 first intelligence officer of the 3rd Corps of the BH army in Vitez. That

17 is an individual who, by definition, in view of his job, must possess all

18 the relevant knowledge about the events, about crime, and the perpetrators

19 of a crime.

20 In the performance of his duties, this witness on the 2nd of July,

21 1993, compiled a list, that is, a report of those suspected of war crimes,

22 he called it, "Genocide in the territory of Vitez." He submitted this

23 report to the security sector of the 3rd Corps of the BH army in Zenica,

24 this is document Z1009.1. And this list has the names of 20 suspects from

25 Vitez.

Page 28485

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Page 28486

1 Mario Cerkez is not among them. His name is not mentioned. But

2 perhaps Mr. Rebihic simply forgot to mention Mr. Cerkez. And he compiles

3 a new list, a new report eight days later to supplement his earlier

4 report, and there, he again gives the names of 20 suspects. Let me remind

5 you that this is D40/2. Cerkez is, once again, not on the list, Your

6 Honours.

7 The Defence believes that this particular fact is very

8 indicative. The witness, who is an intelligence officer of the BH army,

9 the 3rd Corps in Vitez, reports to his intelligence sector and compounds a

10 list of people he believes are involved in war crimes in the territory of

11 Vitez and Mario Cerkez is absent from that list.

12 The third element which the Defence considers highly telling,

13 highly indicative is a document which was admitted as Z1406.1. Let me

14 remind the Court this is a document which was written by HIS, which is the

15 umbrella Croat intelligence service, the date is 21st of March, 1994. The

16 document was written by the then HIS chief, Miroslav Tudjman, and it was

17 submitted to the president, Mr. Franjo Tudjman, and his father.

18 This document says, and I quote, "One can say with certainty that

19 Mario Cerkez is not involved in the massacre in the village of Ahmici and

20 that he had no say in these events themselves."

21 Those facts, one, two, three, are compelling for the Defence to

22 believe that Mario Cerkez is not a criminal let alone a war criminal

23 because we do not see him in that capacity. That is not how relevant

24 participants in the events see him either, Mr. Colonel Stewart and

25 Mr. Rebihic during the conflict that went on in Vitez, nor does after the

Page 28487

1 fact and after the investigation the umbrella intelligence service of the

2 Republic of Croatia sees him as such.

3 Your Honours, Mr. Mario Cerkez now sits here as one of the

4 accused, we believe due to the interplay of some events and three

5 circumstances. One, that on the day of the 16th of April, 1993, in the

6 village of Ahmici in the territory of Vitez, a horrible crime against the

7 civilian population happened.

8 Two, that Mr. Mario Cerkez at that time was the commander of the

9 local HVO brigade which, even though incomplete, nevertheless was the

10 strongest, the largest military formation in the territory of Vitez and

11 the third circumstance is that the death of the commander of the special

12 purpose unit Vitezovi, Darko Kraljevic's death in July 1995.

13 To orient ourselves in time, Your Honours, one needs to say that

14 in July 1995, the preparation of the original indictment in this case was

15 coming to a close, and it was filed on the 2nd of November, 1995.

16 According to the indicia which the Defence has and which derive from the

17 first statements of potential witnesses which the Prosecution handed over

18 to the Defence, it transpires that in the territory of Vitez for that

19 period of time, the chief suspect was in point of fact Darko Kraljevic.

20 When he died, the investigation was turned towards the commander of the

21 Vitez Brigade, Mr. Cerkez, in part in the Defence's view, because of some

22 Semitic misunderstandings. That is because the two words "Viteska" and

23 "Vitezovi" were not distinguished at that time or rather no distinction

24 was made between them.

25 Your Honours, the Defence believes sincerely that Mr. Mario Cerkez

Page 28488

1 would not be here today, sitting here as the accused had this Exhibit

2 Z1406.1, and that is the report on the Ahmici massacre, which was

3 compounded a year and a half before the original indictment was filed, had

4 it been shown to the Prosecutor's investigations together with all the

5 material that underpin that report.

6 Mr. Tudjman, the chief of the intelligence service of the Croat

7 intelligence service who signed that report, he carried this report for

8 more than three months in his pocket when he personally saw Mr. Cerkez off

9 on his voluntary trip to The Hague to this Tribunal and patted him on his

10 shoulder.

11 JUDGE MAY: Mr. Mikulicic, I've told Mr. Naumovski and I repeat it

12 to you that you are to deal with the evidence in this case and not to give

13 evidence yourself. And whatever reasons there may have been for the

14 Prosecution, the fact is that this is now a trial, that these proceedings

15 have taken place, and the Trial Chamber has to decide the case on the

16 evidence which has been put before it, and it's that evidence which you

17 should address.

18 Perhaps I could remind you, you've got 10 minutes left.

19 MR. MIKULICIC: [Interpretation] Your Honours, of course I take due

20 account of what you've said.

21 MR. NICE: I'm sure that Your Honour is actually right about the

22 time. Has Your Honour forgotten that we have 20 minutes to follow?

23 JUDGE MAY: I have not forgotten you've got 20 minutes. I'm

24 merely getting their time.

25 MR. MIKULICIC: [Interpretation] Your Honours, I shall finish

Page 28489

1 before that. This is the very end of what I have to say.

2 Finally, I wish to add the following. This report was actually

3 concealed from our defendant, from this Tribunal, from the investigation

4 for this trial, and it was no doubt exculpatory.

5 Finally, the position of the Defence, Your Honours, is the

6 following: It is only acquittal of Mr. Cerkez that can give him

7 satisfaction. He listened to his own conscience, he came voluntarily to

8 this Tribunal, and patiently, for three years, during three years of

9 detention, he has been waiting for the ruling of this Tribunal.

10 Thank you.

11 JUDGE MAY: Mr. Nice, it's 5 to. We should be taking a break in

12 10 minutes. How long are you likely to be?

13 MR. NICE: I'm certainly likely to wish to use the 20 minutes, but

14 I've been scrupulous in my observance of time until now, so I don't

15 anticipate seeking to stray beyond that. Then there's five minutes for

16 the Kordic Defence, I think.

17 [Trial Chamber confers]

18 JUDGE MAY: We'll break for five minutes now.

19 --- Break taken at 3.55 p.m.

20 --- On resuming at 4.03 p.m.

21 JUDGE MAY: Yes, Mr. Nice.

22 MR. NICE: Your Honour, I must obviously be succinct, if I can.

23 Since it's been mentioned publicly, and only for that reason, I'll just

24 make this point about what Mr. Mikulicic was saying about the Secret

25 Service report. It was provided, as it was confirmed to me by

Page 28490

1 Mr. Kovacic, to both Prosecution and Defence, and because of its content,

2 the Prosecution - at the same time - and because of its content, the

3 Prosecution put it to the first available witness.

4 [Trial Chamber confers]

5 MR. NICE: I'm so sorry. -- put it to the first available

6 witness. And the suggestion that there was any withholding of it, save by

7 the State of Croatia, is entirely wrong and should never have been made.

8 I now turn to the points I want to make briefly. References to

9 the absence or presence of eyewitness evidence, such as AO and one other

10 witness, and concentration on that as a topic, overlook the fact that in

11 the opening note of this case, it was made clear that the case could be

12 proved, paragraph 6 of the Pre-Trial brief, from surrounding facts from

13 which inferences could be drawn, those facts occasionally being

14 illuminated by direct evidence of participation. That was our case. That

15 was the way the case was brought and continued, subject to the addition,

16 now deleted, of AO to the end of the Prosecution's case. It was the state

17 of the case at the time of the rulings made following the conclusions of

18 the Prosecution case, in which, at paragraph 32, and on the basis of the

19 appropriate test at that stage, the Chamber said there is substantial

20 evidence of the role of the accused Kordic in the overall government and

21 control of HZ HB, HR HB.

22 I make that point for this reason, following the arguments you

23 have heard: The fact that there is now additional, overwhelming evidence

24 from documents and elsewhere in relation to part of the case does not, of

25 course, change the threshold or test elsewhere and doesn't mean that

Page 28491

1 suddenly people have to look for evidence of that particular character

2 elsewhere. This case was always sufficiently proved, without either the

3 additional documents or any of those additional eyewitnesses who have come

4 and given evidence. They simply add enormous and further weight to its

5 strengths.

6 I turn to a second topic.

7 JUDGE BENNOUNA: [Interpretation] Excuse me, Mr. Nice. Which is

8 the conclusion which you draw from the fact that, as you say [In English]

9 "The role of the accused Kordic in the overall government and control of

10 HZ HB and HR HB"? [Interpretation] What conclusion do you derive from

11 that?

12 MR. NICE: Your Honour, I wasn't drawing from that in itself a

13 conclusion; I was simply, and I hope appropriately, reminding the Chamber

14 that the evidence without eyewitnesses has always been sufficient for the

15 progress of this case. It goes no further than that, but it underlines

16 the danger on seeing eyewitness evidence for some particular portion, of

17 then reassessing the test for the balance, and that would be wrong.

18 That's the only point. It doesn't in itself go any further than that.

19 JUDGE BENNOUNA: Thank you.

20 MR. NICE: The next point: Whether there is any significance or

21 consequence in the whole of Central Bosnia having been mentioned in the

22 indictment, whereas evidence has only been forthcoming for certain

23 municipalities, was conclusively dealt with in the 6th of April ruling.

24 Amendment of the indictment or an application to amend would have followed

25 any different indication or ruling.

Page 28492

1 Next point: Mr. Smith's characterisation of our case on

2 persecution, with its three pillars, is not our characterisation, which

3 may be read at pages 142, paragraph 436 of our closing brief. This was

4 persecution by a plan to persecute the Muslim population in Central Bosnia

5 in order to accomplish territorial and political ambitions of the HZ HB

6 involving the deprivation of various basic rights.

7 And can I, with that observation in mind, turn but briefly to one

8 of His Honour Judge Robinson's interventions in the course of discussion,

9 where he identified a trend to infer persecution from crimes, that is, a

10 trend within the Tribunal. May I suggest that if there is a trend, it's

11 only a proper discharge of judicial function, but it's -- what happens and

12 what is happening or should happen, in our respectful submission, in this

13 case is not to infer persecution from an individual crime, or necessarily

14 even from a collection of crimes, but from a pattern of events. That is

15 why, although it is, I accept, a hard task, and indeed even a strain

16 sometimes, we would respectfully request the Chamber, from time to time in

17 the course of its deliberations, to focus either on our appendix annex 11

18 or such other tools or resources as it has, of its own creation, whereby

19 you can see passages of time dealt with sequentially and with all the

20 evidence being available.

21 Reading, for example, appendix 11 or annex 11 for several pages,

22 where the events in different municipalities, the recorded words of the

23 defendants on different occasions come together in a sequence, shows the

24 pattern of events from which persecution can, in our respectful

25 submission, be inevitably and properly inferred, changing, of course, in

Page 28493

1 its precise manifestation from the earlier days through to the period of

2 the most terrible violence and killing.

3 Next point: In the course of the Kordic arguments there was

4 reference, I think, on three occasions to ad hoc - ad hoc artillery, ad

5 hoc atrocities - and all in the setting of a regional political leader who

6 took the sorts of ad hoc action from time to time that the political

7 leaders are prone to take. I fear I cannot deal with how you have, as if

8 were, ad hoc artillery use or how you have ad hoc massacres. It may be

9 that the Chamber will decide that these propositions are true once you

10 delete the words "ad hoc" and that these were indeed a regional political

11 leader engaging in atrocities and having the use of artillery.

12 A similar problem in the arguments of the defendants arises with

13 Cerkez's, through his counsel's, ignorance not only of Ahmici, but his

14 ignorance of the composition of his brigade so far as Bralo is concerned

15 and his ignorance of such things as his unit being used for the detention

16 of prisoners. There comes a time when such three-fold claims for

17 ignorance are simply untenable.

18 I turn next to questions that have been pursued - and of course

19 these matters are argued elsewhere in our briefs - but questions that have

20 been pursued about Kordic's role in relation to military matters. Boban

21 has been referred to. Boban, of course, is dead. There is no evidence

22 before this Chamber of Boban giving day-to-day orders, controlling events

23 in this valley. No one else, apart from Boban, or between him and Kordic,

24 has been proposed as the active regional authority to whom the senior

25 politician might have delegated his authority, which the Chamber may

Page 28494

1 conclude is what effectively happened. Indeed, all the evidence is

2 consistent with it having happened in that way.

3 The Chamber will have in mind by way of a parallel example that

4 the circumstances in the period with which we are concerned was reflected

5 in Exhibit 1134, not so far as he was concerned, but so far as the

6 military police. What happened was this, and you can see it in the

7 document, this quotation for the period January to June 1993:

8 "Owing to the isolation of the Central Bosnia Operative Zone,

9 contact between the military police Mostar and the 4th Battalion was

10 possible only by technical means of communication and radio

11 communications. All powers of the chief of the military police

12 administration in this Operative Zone were transferred to the assistant

13 chief of the Central Operative Zone, Ljubicic."

14 We invite you to say that the same parallel transfer was necessary

15 at various times, and by this time, and that, of course, by whatever

16 means, formal or otherwise and howsoever expressed, Kordic was the

17 recipient of the delegated authority. You may remember, and we'll place

18 them rapidly on the ELMO, the titles chart which, of course, shows his use

19 of the vice-presidential role and the forward office of the president over

20 the material periods highlighted in yellow.

21 I can show you next a letter from the 7th of December of 1993 from

22 Kordic to Boban later in the period, of course. 343/1, tab 18, where he

23 sets out, "We have given ourselves to right to call ourselves officials of

24 the branch office of the President of the Croatian republic, and we ask

25 your instructions." Next, please, Exhibit D356/1, tab 39, a document of

Page 28495

1 the 15th of July, the relocated office of the Presidency is how this

2 document is headed, and if you go to the -- we can see that the first

3 person named as getting his salary and so on is Dario Kordic.

4 Court Witness 1, it may be, accidentally confirmed this point when

5 testifying that Kordic was a politician in Central Bosnia who, said the

6 witness, he believed imposed himself over his colleagues politically,

7 finally to be deputy president of the Croatian Community, and perhaps he

8 might have been above the other politicians, he said.

9 In our respectful submission, this and the other material with

10 which you are familiar demonstrates beyond a doubt that he had executive

11 authority and arguments to the contrary are to no effect.

12 Can I turn your attention, briefly, to the document of the 22nd of

13 September. There was some suggestion - I'm not sure how well fully

14 articulated - there was a quotation given from a document, and we'll just

15 look at it in full, by Mr. Smith relating to Mr. Kordic, and the document

16 is 141.1, tab 9. Yes, 141.1, tab 9. Thank you very much.

17 The first highlighted passage about cooperation was highlighted.

18 The second passages were not read out. They include: "The Croat people

19 do not recognise Croat representatives in the government of

20 Bosnia-Herzegovina." Observations about coat of arms, Croats are for a

21 unitary state and so on.

22 The next document, 22nd of September, 1992, is one of the many

23 documents or several documents over Kordic's name, vice-president of HVO.

24 This is a document that I think Your Honour, Judge May, had in mind when

25 listing the various municipalities, for this is the document that, of

Page 28496

1 course, records the progress by that time with the various documents,

2 whether HVO control was complete, and it's a document that merits

3 rereading because it shows exactly how it is appropriate to look at this

4 history in the overall terms concerning their efforts to gain control of

5 all those municipalities in which they had an interest.

6 And on the same point -- I'll give the number later because I can

7 see that time is difficult. On the same point, the 8th of April document,

8 624.1, just those few days before Ahmici, is a document that again, in the

9 same context, if we look at -- one entry from it is worth

10 consideration: "It is necessary to speed up the establishment of HVO

11 authority in all municipalities and every month inform the HVO office in

12 Travnik in writing and so on. Military authorities have to work as much

13 as possible on strengthening the military organisation."

14 All of this part of a pattern with the essence of which the

15 Chamber is entirely familiar.

16 Before I turn from the proposition that Kordic was, himself,

17 interested in cooperation, his absence from ceasefire agreements may, of

18 course, be explicable on grounds that such activities were activities in

19 which he had no interest. Brigadier Cordy-Simpson, I think, spoke of an

20 element pressed for by Kordic was so unrealistic as really never to be

21 something that would be accepted, but ultimately the Chamber can find

22 support for the proposition that he had no interest in cooperation, in his

23 own words. The tape, the audiotape that we've listened to and focused on,

24 of course, has principal interest for its first recording or its first

25 transcript. But there are others, and although a difficult document to

Page 28497

1 deal with because it takes time.

2 There's one entry which you can find on page 22. I will lay it on

3 the ELMO and read part of it out for the 25th of February, further down.

4 It's highlighted and so on.

5 Now, this is a discussion or an exchange between Blaskic and

6 Kordic, and the highlighted passages, as suitably read, explain it.

7 Blaskic is talking about an aggression, an occupation by the enemy, "We'll

8 see what happens." Kordic replies, "How can there be a joint command with

9 the enemy? I don't know what that is."

10 The clearest possible reference here, in light of the time and the

11 rest of the conversation to the Muslims. He had no interest in joint

12 commands. That may explain his absence from the ceasefires upon which

13 emphasis has been placed by the Defence.

14 JUDGE BENNOUNA: [Interpretation] Excuse me, Mr. Nice, but what is

15 the association between the joint command and the ceasefire? How do you

16 put these two things together? It seems to me they have nothing to do

17 with one another.

18 MR. NICE: They do have something to do with the Defence

19 proposition that Kordic was interested in cooperation with the Muslims,

20 and I'm having, in the time available to me, to conflate various answers

21 and I'm sorry if they don't --

22 JUDGE BENNOUNA: [Interpretation] Just wait. The command, the

23 joint command. It means to issue jointly commands, orders, and the

24 ceasefire means to temporarily stop the hostilities. So why do you say

25 the refusal of a joint command? Because all the necessary negotiations

Page 28498

1 had not yet been concluded.

2 MR. NICE: Joint commands with the Muslims is what's the topic.

3 Therefore, what he's showing is that he had no interest in doing things

4 jointly with the Muslims. And the reason I conflated that with the

5 observation I made about ceasefires is maybe the reason he wasn't at

6 ceasefires is identical. He was never that interested. Likewise with the

7 observation about Cordy-Simpson and what he said. So that's the topic and

8 it has to be dealt with in that way.

9 Can I go into private session very briefly, please?

10 [Private session]

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8 [Open session]

9 MR. NICE: One small point about the allegation of forged

10 documents by Cerkez. Let it not be forgotten that some of the most

11 significant documents bear Cerkez's signature. There have been -- again

12 those documents were put to the first available witness, Badrov, who

13 recognised them. There has been no suggestions that those signatures are

14 forgeries. There has been no evidence offered that they are anything

15 other than his signatures. They are his signatures. The whole argument

16 advanced on the basis of forgery is misplaced.

17 It also requires, and it's too complicated to go into now, an

18 extraordinary process whereby some of the documents, the ones they rely

19 on, were not forged, some weren't, and so on. It's an inconceivable

20 position, but fundamentally broken by the fact that his own signatures,

21 unchallengeably, are on them.

22 So far as Kordic is concerned, the way it's been summed up on

23 behalf of the Defence is that he wasn't a de jure military man, and

24 whenever a de jure document is shown, they have to laugh those off. And

25 when he's confronted with specific evidence, they have to laugh that off

Page 28502

1 as well. I have to say that things were done as a joke or some reason

2 like that.

3 There simply is no tenable Defence to the overwhelming evidence

4 that he had authority of all kinds in this developing campaign or whatever

5 word you choose that involved the persecutions and all these other grave

6 crimes.

7 Your Honour, I -- if the Court wants to keep me to the time table,

8 I recognise that's the time, I better stop. I could go on for a long

9 time, and it mustn't be thought that I have dealt with anything like the

10 number of matters that we know we would be rebutting in the arguments I've

11 heard. I've just simply picked some.

12 MR. SAYERS: Three short points, Your Honours.

13 First, insofar as a joint command with the enemy is concerned,

14 that proved to be precisely the case. In fact, that was the testimony of

15 Court Witness 1. I'm sure the Trial Chamber recalls it vividly. The

16 joint command that was supposed to be set up after the negotiations that

17 occurred between President Izetbegovic and President Boban turned out to

18 be a pipe dream and Exhibit D194/1 the milinfosum of June the 9th proves

19 it to a certainty.

20 Second, the reason that Mr. Kordic didn't participate in ceasefire

21 negotiations, and it is incontrovertible that he did not and that no one

22 asked for him to be there, is that he did not have -- he did not have the

23 power, the types of power that the Prosecution ascribes to him. That's

24 simply inescapable from that.

25 Third, the delegation argument. The Prosecution invites the Trial

Page 28503

1 Chamber to spirit out of thin air the proposition that President Boban

2 must have delegated some of his executive or military prerogatives to

3 Mr. Kordic. There's no evidence of that and, in fact, the evidence is to

4 the contrary. From Srecko Vucina who was the head of the office of the

5 president and from Court Witness 1. So there is no proof to support that

6 other than the request for a naked inference, if you like, a self, a

7 free-standing inference. It's not based upon evidence.

8 And my concluding remarks are these: The ghosts of the victims of

9 Ahmici haunt all of the Lasva Valley cases. There is simply no doubt

10 about it and they stalk the halls of justice in this Tribunal. There is

11 no question that those ghosts are entitled to justice, but they are not

12 entitled to vengeance or to have an innocent man used as a scapegoat and

13 symbol for others who are the real criminals.

14 On this record, Your Honours, on this record, you cannot find

15 guilt beyond a reasonable doubt on any of the offences that are charged in

16 this extraordinarily broad, amended indictment applying the governing

17 legal tests and performing a careful analysis of the facts as we've tried

18 to do in our brief, which we hope will persuade you when you've finished

19 reading it, that the broad brush approach used by the Prosecution is

20 inappropriate.

21 The reconciliation process is not assisted by sending innocent

22 people off to gaol. Mr. Kordic is not guilty of any of the crimes

23 charged, and he should be acquitted on all counts. Thank you very much.

24 MR. KOVACIC: Your Honours, we will not answer but only two

25 sentences if we can.

Page 28504

1 First one is to apologise. Our dear colleague did not probably

2 understood what was the point of Mr. Mikulicic. He was, in a way,

3 accusing Tudjman for keeping the document in the pocket, not the

4 Prosecution, and I would suggest they would use the transcript and check.

5 It was clearly said. However, it was mentioned that the document was kept

6 in the pocket of Mr. Tudjman for three years, not three months as the

7 transcript says.

8 Only one further sentence related to what was said about false

9 documents. We have seen in the evidence here more than a thousand

10 documents, all, all of them submitted in the copies. We are all coming

11 from different jurisdictions. We all know what usually the proceedings is

12 with the copies of the documents. It's easy to produce a false document.

13 Everybody could do it when you use the copy machine. Everybody knows that

14 there is no need to prove that.

15 However, that system works as long as somebody challenges the copy

16 of the document. Then we are coming to the issue of who has the burden to

17 prove. Then one who is having a burden have to produce the original.

18 That's the point. And I think when we are going back to our jurisdiction,

19 we are all aware that that is the name of the game. I can use a copy as

20 long as the other party agree with that. But if I'm challenging, then the

21 original should be produced. And then the Prosecution will say, "Well, we

22 have a problem with Croatian authority. There is conspiracy." That is

23 not my problem. They should have thought about the indictment, then, if

24 they cannot prove.

25 That is all. Thank you, Your Honour.

Page 28505

1 JUDGE MAY: Thank you. This case will be adjourned for judgement

2 to a date which will be fixed and of which you'll all be notified in due

3 course.

4 Mr. Nice, if I could address you. Before parting from the case,

5 the Trial Chamber would wish to express its gratitude to all those who

6 have assisted in it. First of all, we would express our gratitude to all

7 counsel for their assistance in trying what has been a long and complex

8 case.

9 Next we would wish to express our gratitude to all the Court

10 staff, and that includes the registry, the ushers, and security, for their

11 assistance in the smooth running of a case which has lasted more than 20

12 months.

13 We thank the court reporters for their transcribing of I think

14 more than 28.000 pages of transcript.

15 And last, but not least, we thank the interpreters, as it's said,

16 unseen but not unheard, who have so much assisted the running of the trial

17 and interpreted no less than 240 witnesses' evidence.

18 To you all we're very grateful, and we would also be grateful if

19 our thanks could be passed on to all those who are not here today but over

20 the course of time have lent their assistance.

21 The case is adjourned.

22 --- Whereupon the hearing adjourned at 4.38 p.m.

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