1 Tuesday, 18 May 2004
2 [Open session]
3 [The appellants entered court]
4 --- Upon commencing at 9.04 a.m.
5 JUDGE SCHOMBURG: A very good morning to everybody. I can see the
6 appearances for the parties are the same as yesterday. May I ask
7 Madam Registrar, please, to call the case.
8 THE REGISTRAR: Case number IT-95-14/2-A, the Prosecutor versus
9 Dario Kordic and Mario Cerkez.
10 JUDGE SCHOMBURG: Thank you. And may I ask those, Mr. Kordic and
11 Mr. Cerkez, are you also again fit for this hearing and can you follow the
12 proceedings in a language you understand?
13 THE APPELLANT KORDIC: [Interpretation] Good morning, Your Honours.
14 Thank you for asking. I can understand everything and I can follow the
15 proceedings normally.
16 JUDGE SCHOMBURG: Thank you.
17 THE INTERPRETER: Microphone, please.
18 THE APPELLANT CERKEZ: [Interpretation] Good morning, Your Honours.
19 I understand everything and I can follow the proceedings.
20 JUDGE SCHOMBURG: Thank you.
21 Then we can start immediately. Who wants to take the floor on
22 behalf of the Prosecutor first today?
23 MR. FARRELL: I will take the floor, Mr. President, but only
24 momentarily, just to indicated that I've completed my portion of
25 submissions, as indicated, by 7.00 last evening. The Prosecution will
1 commence this morning with submissions by Ms. Kind and then by Ms. Jarvis.
2 I just wanted to mention to the Court that we'll just have to move counsel
3 to the front table for submission purposes, so there will be a little
4 shuffling going on at that time.
5 And secondly, I just wanted to indicate to Your Honours that
6 there's a possibility that we may need -- will request an extra 30
7 minutes, 30 to 45 minutes, to respond to everything, with your leave, and
8 that I would suggest that that time be taken from the Prosecution's
9 appeal. I don't suspect we'll need the full time on the Prosecution's
10 appeal, so it's my hope that it won't affect the overall schedule.
11 JUDGE SCHOMBURG: Fair enough.
12 MR. FARRELL: May I ask that Ms. Kind please address you. Thank
14 JUDGE SCHOMBURG: Thank you.
15 MS. KIND: Your Honours, I will briefly address you regarding the
16 war diary, Exhibit Z610.1. According to Rule 89(C), the Chamber may admit
17 any relevant evidence which it deems to have probative value. It is
18 settled law at the Tribunal that proof of authenticity is not a separate
19 threshold requirement for the admissibility of documentary evidence.
20 As regards hearsay evidence, it is settled practice of this
21 Tribunal that relevant out of court statements which are considered by the
22 Trial Chamber to be probative are generally admissible on the Rule 89(C).
23 A piece of evidence is not admissible if it is so lacking in terms of
24 indicia of reliability that it is not probative.
25 Matters going to authenticity and whether a document is an
1 accurate reflection of the events are matters for the Trial Chamber to
2 assess when considering the weight to be attached to individual pieces of
4 The issue raised by the appellant essentially goes to the
5 determination of the reliability of this document, Z610.1, and whether the
6 Trial Chamber abused its discretion when it assessed it to be sufficiently
7 reliable to be admitted into evidence. The Prosecution submits that the
8 appellant's arguments regarding admissibility and weight of the exhibit
9 were fully litigated at trial and rejected by the Trial Chamber. In its
10 decision of 1 December 2000, to admit Exhibit Z610.1, the Trial Chamber
11 considered as relevant factors the unavailability of the exhibit during
12 the presentation of the Prosecution's case, the cumulative effects of the
13 material and whether the admission was in the interests of justice. This,
14 according to the Trial Chamber's test, which it had formulated with regard
15 to the so-called Zagreb documents on 21st November 2000.
16 The Trial Chamber found that it was admissible, Exhibit Z610.1,
17 because it was relevant to issues of the case and was contemporaneously
18 made. You will find the Trial Chamber's specific considerations with
19 regard to Z610.1 at paragraph 44 of the decision of 1st December 2000.
20 The Prosecution submits that there's nothing in the Trial
21 Chamber's decision indicating that the Trial Chamber exercised its
22 discretion erroneously. Numerous pieces of evidence which were admitted
23 during the trial and which were before the Trial Chamber quite
24 independently and through various witnesses admitted before the Trial
25 Chamber, corroborate the accuracy of entries in Z610.1. Some of the
1 documents that are corroborated by Z610.1, the war diary, were tendered by
2 the Prosecution and were in fact -- had in fact been Defence exhibits in
3 the trial against Blaskic. Or even Defence exhibits in the --
4 THE INTERPRETER: Kindly slow down for the interpreters.
5 MS. KIND: My apologies. I'm sorry. Some of the documents were
6 in fact Defence exhibits in the Blaskic trial and others had been tendered
7 by the Defence in this case. During the closing argument on 14 December
8 2000, the Prosecution went through numerous entries in Z610.1 and pointed
9 the Trial Chamber to such evidence. Of course, time is much more limit
10 now, but I would just like to refer you to paragraphs 238 through 253 of
11 the Prosecution's closing brief, and also LiveNote pages 28274 to 28299 of
12 the closing submissions by the Prosecution of 14 December 2000.
13 I would also like, with the Appeals Chamber's permission, to just
14 show you a few examples, just to make it plain.
15 On the screen you have, for example, an entry in the war diary at
16 page 71 of the English translation, recorded on 16 April 1993 at 0915
17 hours, an incident involving an UNPROFOR tank. Exhibit Z681, which had
18 been previously admitted, reflects exactly the same incident.
19 The next entry in the war diary at page 90, for 16 April 1993, at
20 1625 hours, reference to an order number 01427193. This was -- the
21 respective order was admitted as Exhibit Z682 previously, and reflects
22 exactly the same content of information.
23 The next entry at page 98 of the war diary for 16 April 1993 at
24 2000 hours, a combat order for the defence of Kuber, number 01428093 at
25 1945 hours, the same information reflected in Kordic Defence Exhibit
2 Page 99 of the war diary, 16 April, at 2035 hours, order number
3 014282, to the Stjepan Tomasevic Brigade, sent by Commander Blaskic. This
4 was Defence Exhibit D305/1, tab 17.
5 And the last one that I want to point to - of course, there are
6 many more - page 94, 16 April 1993, at 1755 hours, reference to a list of
7 people that were killed in combat, Exhibit Z673.6, admitted by the Trial
8 Chamber in its decision of 1 December 2000, reflects exactly the same
9 information, the same list of names.
10 Your Honours, the Prosecution notes that this Exhibit 610.1, as
11 you are aware, was admitted as additional evidence under Rule 115 in
12 another case and was found to be admissible as additional evidence. It is
13 very important to note that the Trial Chamber in the course of the trial
14 admitted similar documents, similar to the kind of 610.1, documents
15 produced by the appellant, and the Trial Chamber applied exactly the same
17 The appellant submitted on 24 November 2000 as part of his
18 rejoinder material two log books allegedly generated by the ABiH 3rd
19 Corps. These are D367/1 and D368/1. No witness was called to
20 authenticate them, but similar to 610.1 these log books contain entries by
21 the duty-officer referring to events in the area of responsibility,
22 recording orders issued and reports received. The entries over the period
23 of time which spans from 1st December in total until the end, 22nd of
24 June, 1993, are -- the entries are made in different handwritings, as it
25 is to be expected in a logbook.
1 When asked by His Honour Judge Robinson about the evidentiary
2 value of these log books, counsel for the appellant stated that, I quote:
3 "The evidential value is to show that these reports must exist. They are
4 referred to by number in the logbooks."
5 This is to be found at LiveNote page 28214 on 8 December 2000.
6 The Trial Chamber when considering this evidence applied exactly
7 the same test as it had applied when it admitted Z610.1. Both log books
8 were admitted by the Trial Chamber based on the same considerations and I
9 quote: "The two logbooks will be admitted for the same reason that we
10 admitted the log of the duty-officer of the operative zone."
11 These log logbooks come into precisely the same category. They
12 speak for themselves, made, it would appear, contemporaneously by a
13 similar duty-officer."
14 This is to be found at transcript 28222 on 8 December 2000.
15 I don't want to take up much more time, but just to refer you to
16 some of the concerns that the Defence has raised with regard to these
17 documents. I believe you have been provided with copies of the B/C/S
18 original of the logbook, and I have informed the Defence that I will refer
19 to that.
20 You will find -- I also distributed two excerpts. There's one,
21 page 23, which has been translated, page 23 in the translation. It refers
22 to the first red flag that you will have in the B/C/S original. This is
23 the passage that Marco Prelec was questioned about at trial. You will see
24 in the original the insertion of the words "war diary from 15 April 1993"
25 in a section that actually deals with January.
1 THE INTERPRETER: Could counsel please speak into the microphone,
2 thank you, and slow down. Thank you.
3 MS. KIND: I'm sorry. I apologise.
4 As you can see from the original, the words that are written
5 across the page are clearly in a different writing, clearly inserted, an
6 overwriting of a different kind. It has nothing to do with the body of
7 the text, in the Prosecution's submission.
8 Further, with regard to -- if you may turn to the other hand-out
9 that I gave you, which is the last page of the war diary, the very last
10 page, and in the translation it's page 207 in the English translation and
11 the very last page on the B/C/S. This is where Colonel Blaskic signs off
12 of the documents, and he mentions that number 62 and 63, the pages are
13 missing. If you turn to the original, the red -- which is marked again in
14 the middle of the document with a red flag, just to show you a little bit
15 how this document works. The Prosecution submits it is a document, as you
16 will see, that is marked with page numbers in the rights -- upper hand
17 right corner. Every second page is marked with a page number. It appears
18 that this is sort of a ledger, like a double-sided pages, and clearly the
19 pages marked 62 and 63 are missing, and the Prosecution submits that they
20 are actually entries from the same day, 19 April 1993. As you will see
21 from the original, a couple of hours are missing. The duty-officer makes
22 very specific notes for every couple of minutes, and Prosecution submits
23 that what happened is a couple of entries are missing because these pages
24 were taken out, and this was certified by Blaskic himself.
25 I will stop in just a minute. Just to refer you to two more
1 concerns that the appellant has raised for Witness Grubesic, who was
2 questioned about it. You will find this at transcript page 28037. It is
3 marked with a blue flag in your original copy. What happened there is
4 that entries -- the dates of entries were put in reverse order, but the
5 Prosecution submits that that does not change the content of the actual
6 entry that goes with the respective date.
7 With regard to AT, I'm not going to go into closed session, just
8 refer you to transcript 27776, where he was questioned in re-examination
9 again about exactly what his concerns were with regard to the war diary.
10 And if you may just look at that.
11 Finally, in sum, the Prosecution submits that the appellant has
12 not demonstrated that the Trial Chamber erred when it admitted Z610.1, to
13 the extent that the content of Z610.1 is corroborated and reliable, the
14 Trial Chamber has not abused its discretion when it admitted Z610.1 into
15 evidence and relied on it. Thank you.
16 JUDGE SCHOMBURG: Judge Mumba, please.
17 JUDGE MUMBA: Counsel, I just wanted to be clear in my mind on
18 your submission regarding some of the documents on page 4, lines 5 to 7 of
19 today's LiveNote. You did say something to the effect that some of the
20 disputed documents, I take it, or you did say some of the documents were
21 in fact Defence documents in the Blaskic trial.
22 MS. KIND: Yes.
23 JUDGE MUMBA: And some were Defence documents in the trial.
24 MS. KIND: Yes.
25 JUDGE MUMBA: I take it that Blaskic was a different trial.
1 MS. KIND: Absolutely, of course.
2 JUDGE MUMBA: And the rules concerning documentary evidence were
3 not softened by that in the trial of Kordic and Cerkez. You are fully
4 entitled to dispute documents even those accepted by the Defence in the
5 Blaskic trial.
6 MS. KIND: Absolutely. Absolutely, Your Honours.
7 JUDGE MUMBA: Thank you.
8 MS. KIND: My point, may I if I just --
9 JUDGE MUMBA: You can complete your point.
10 MS. KIND: I'm sorry. My point depends -- it must be too short on
11 that. These documents were admitted in this present case and the exhibit
12 number is, for example, Z681 in this trial. My point was that this is
13 evidence that had been relied on previously that has been available and
14 known a long time and also was admitted in this case. That's the main
15 point, long before the war diary had been come about by the Prosecution.
16 JUDGE MUMBA: Thank you.
17 JUDGE SCHOMBURG: I'll ask a follow-up question just to have the
18 record clear. No doubt we could look it up in the previous LiveNotes of
19 the trial hearing. However, I want to turn to the last page. The
20 translation might be slightly misleading in as far as it reads twice
21 signed, Colonel Tihomir Blaskic. And it seems to be evident that both
22 signatures are not from the same hand. Could you comment, please, on
24 MS. KIND: Your Honours, I can, of course, not myself identify the
25 signatures, but our submission is that at trial, when this document was to
1 be admitted, the signature at the end of the document was not disputed.
2 There was no dispute about that, to my recollection. Is that sufficient?
3 JUDGE SCHOMBURG: The only question is because there are two. If
4 you see the English document.
5 MS. KIND: Yes, that's correct.
6 JUDGE SCHOMBURG: It reads twice signed --
7 MS. KIND: That's correct.
8 JUDGE SCHOMBURG: -- by Mr. Blaskic.
9 MS. KIND: With your permission, may I just confer?
10 JUDGE SCHOMBURG: Please.
11 [Prosecution counsel confer]
12 MS. KIND: Your Honours, I'm sorry. I don't think I can assist
13 further. There was no -- I'm not a handwriting expert. I cannot identify
14 those. These signatures were not challenged at trial, and I'm sorry, I
15 can't make any further submissions on that.
16 [Appeals Chamber confers with legal officer]
17 JUDGE SCHOMBURG: We had the same problem in similar cases, and
18 therefore, my question would be: The words you can read before Blaskic,
19 Tihomir, is it the expression that stands for Tihomir Blaskic, or -- I
20 don't want to make it a guessing game. I don't know whether the
21 interpreters have the same document in the booth.
22 THE INTERPRETER: No, Your Honour.
23 MS. KIND: I did provide copies yesterday, but I apologise, I
24 didn't today. Yes. Maybe we can put it on the ELMO, if you --
25 JUDGE SCHOMBURG: Yes. This would be extremely helpful. Thank
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 you. May I ask the -- please don't assume it too much that we can see the
2 entire document from -- one line higher. A little bit higher. So that
3 should be fine.
4 May I ask the interpreters: Can you read this, and could you
5 please be kind enough, as I emphasised yesterday, you're working here as
6 interpreters, not as translators, but could you please nevertheless be so
7 kind and try to read what is legible here on this -- on the computer.
8 THE INTERPRETER: Your Honour, underneath the stamp, there is
9 something written which would indicate that it might be za zapovjednika,
10 but I can't actually see it, but the zapovjednika is in the case, which
11 indicates that maybe it means "for commander colonel." But the actual
12 word "for" is underneath the seal za and I'm not quite certain.
13 JUDGE SCHOMBURG: And then you -- we can see after the PS the
14 final signature. What can you read there before Blaskic, Tihomir?
15 THE INTERPRETER: It says "Puk," Puk abbreviated for Pukovnik,
16 Colonel Tihomir Blaskic.
17 JUDGE SCHOMBURG: Okay. Thank you. I don't have any question,
18 any other questions. Thank you for this assistance.
19 MR. FARRELL: Your Honour, as Ms. Jarvis will be making
20 submissions to the Bench, I'd just ask your indulgence for one minute so
21 she can make it to the front table.
22 MR. SAYERS: Your Honour, while the Prosecution are making the
23 necessary arrangements, could I hand up the case of Banks v. Dretke that
24 the Court asked for yesterday.
25 JUDGE SCHOMBURG: Thank you so much. Once again, to have the
1 record clear, I would like to attach an exhibit number to this document.
2 What would be the next document, please?
3 THE REGISTRAR: Exhibit number DAK 2.
4 JUDGE SCHOMBURG: Sorry that I didn't ask before the Prosecution,
5 but I don't believe there is any objection. Thank you.
6 Ms. Jarvis, please.
7 MS. JARVIS: Thank you, Mr. President, Your Honours. I'll respond
8 to the appellant Kordic's argument on two issues: The arguments he raises
9 in respect of count 1 of the indictment, persecution; and secondly, the
10 issues he's raised in respect of the existence of and classification of
11 the armed conflict in Central Bosnia.
12 But first persecution. Your Honours, I could begin by pointing
13 out that the arguments the appellant has raised in challenging his
14 persecution conviction are overwhelmingly an attempt to simply re-argue
15 the evidence from trial. But there is an even more fundamental point to
16 address. If you consider Mr. Kordic's persecution arguments in their
17 totality, it's clear that there are some fundamental misconceptions about
18 the crime of persecution that underpin them.
19 To illustrate what I mean, let me give you an overview of some of
20 the points that he's made during this appeal proceedings. For example, in
21 his corrected Appeal Brief of 12 July 2002, at page 76, he states that the
22 conflict between the Muslims and Croats in Central Bosnia did not involve
23 any more discrimination against or persecution of one community by another
24 than is normally to be found in the turbulence of ethnic politics and the
25 prosecution of a civil war once politics fails.
1 Another example from the same brief, at page 94, where he
2 describes the Croat treatment of Muslims in Busovaca as a far cry from the
3 deliberate, calculated policies of persecution that the Serbs pursued
4 against both communities.
5 And further, his corrected supplemental appellant's brief of 4
6 March 2004, at page 33, paragraph 55, suggesting that if the ABiH was on
7 the offensive, this tended directly to rebut any suggestion that it was
8 the Croats who were persecuting the Muslims; rather, the reverse was true.
9 Consider also, Your Honours, the appellant's repeated assertion
10 that he is not guilty of persecution because there was no unilateral
11 campaign. In essence, Your Honours, Mr. Kordic is asking you to do the
12 following: He asks you to accept that the prohibition against persecution
13 is relative, that some persecution is allowed, indeed expected in indeed
14 all wars, and that the international community should not concern itself
15 with that. He asks you to accept that if the parties to a conflict commit
16 persecutory acts against each other, then that extinguishes the
17 persecution in question, that unless a persecution campaign is one-sided,
18 it's not persecution at all. And he asks Your Honours to accept that
19 persecution is a label that should only be attached to the Bosnian Serbs
20 because their behaviour, he suggests, is far worse.
21 None of these propositions is correct. The prohibition against
22 persecution is absolute. The label of persecution doesn't serve the
23 purpose of issuing a judgement about which ethnic group committed the
24 highest percentage of atrocities in the conflict, or indeed which ethnic
25 group was the most defenceless. It's not a label that's applied to
1 vindicate the political policies of one or other party to the conflict.
2 It's a criminal law norm applied to protect individuals from having their
3 rights violated deliberately, on discriminatory grounds, and to ensure
4 justice to those individuals who suffer such violations.
5 The fact that Mr. Kordic has been convicted of persecution is by
6 no means a denunciation of the Bosnian Croat people as a whole; rather, it
7 is about holding accountable one individual for his conduct that led to
8 violating the rights of the Bosnian Muslim victims of the Lasva Valley and
10 Turning, then, to some of the specific arguments that Mr. Kordic
11 has repeated from trial. He has denied that the Croat Community of
12 Herceg-Bosna, the HZ HB, had a secessionist agenda. The Trial Chamber
13 rejected this argument, paragraph 491, after fully considering it, and
14 found that the HZ HB did indeed intend to secede from Bosnia and enter a
15 union with Croatia. And Your Honours, it's little wonder that the Trial
16 Chamber rejected the testimony of the Defence witnesses to the contrary,
17 which the appellant has attempted to re-argue on appeal.
18 The appellant has raised, in a bid to dismiss the Trial Chamber's
19 reliance on Exhibit Z2717A, the minutes of the presidential meeting held
20 by Tudjman on 27 December 1991. He claims that it's not probative, that
21 it does not direct the use of force in pursuit of the territorial aims of
22 Herceg-Bosna. Well, certainly, Your Honours, in December 1991, Bosnia was
23 just beginning to splinter, and what we see at this meeting are the seeds
24 of a plan that would be nurtured over the next two years. That is what
25 the remainder of the evidence in this case was about.
1 But this document warrants much greater examination than the
2 appellant's cursory treatment. Ignac Kostroman, the secretary of the HZ
3 HB, was present at that meeting in Zagreb. His intervention that day
4 recorded at page 13 of the transcript, makes it crystal clear that the HZ
5 HB was established to provide a legal basis for the entry of these
6 territories into the Republic of Croatia. The argument that the HZ HB had
7 no territorial aspirations has been put on behalf of Mr. Kordic by his
8 lawyers. But I ask Your Honours to consider the actual words of
9 Mr. Kordic at that meeting. He said: "The Croatian people in the region,
10 the subregion of Travnik, live with the idea of acceding to the Croatian
11 state, and they are ready to do so at all costs. The young men are
12 teeming with Croatian spirit. I say this because I come from the field.
13 We have visited every single village in the territory of the subregional
14 community of Herceg-Bosna."
15 At this meeting, President Tudjman also underscored his belief
16 that the existing borders of Croatia were unworkable.
17 Your Honours, why does it matter so much whether or not the HZ HB
18 aspired to territorial acquisition and union with Croatia? And why has
19 Mr. Kordic so strenuously denied it, even in the face of incontrovertible
20 evidence to the contrary? Ask yourselves, Your Honours: How likely was
21 it that the HZ HB's territorial aspiration could have been achieved when
22 across the coveted territories there was a sizeable Muslim population? In
23 many areas, the Croats had only a relative or very slim absolute majority.
24 I refer you to paragraph 494, 499, 504, and 505 of the trial judgement in
25 that regard.
1 So although the aspiration was clear, the practical problem
2 remained: How could the objectives of the HZ HB be achieved when almost
3 half of the population in the key areas were Muslim?
4 The evidence at trial, accepted by the Trial Chamber, revealed the
5 tragic answer to that question. When it became apparent that the Muslims
6 would not voluntarily accede to these territorial aspirations, the Bosnian
7 Croat leadership, through the instruments of the HZ HB and the HVO,
8 embarked on a step-by-step process aimed at confining and then
9 eliminating, by violent means, all resistance from the Bosnian Muslims.
10 They sought to subjugate them, to bring them under Bosnian Croat control.
11 Mr. Kordic was the senior HDZ politician in Central Bosnia. He
12 was the president of the HDZ in Busovaca and a member of the four-person
13 presidency of the HZ HB, one of its two vice-presidents. So the reason
14 why Mr. Kordic has denied the truth about the territorial aspirations of
15 the HZ HB, even in the face of insurmountable evidence to the contrary is
16 clear. When Your Honours understand the political backdrop to the events
17 in this case and the location of Mr. Kordic squarely in the middle of
18 them, it is a very relevant lens through which to view the events
19 unleashed in Central Bosnia from 1992 onwards.
20 Let me take Your Honours to paragraph 473H of the judgement.
21 Consider for a moment the scene at the municipal hall in Busovaca in
22 January 1992. Dario Kordic took centre stage in front of a cheering crowd
23 that was chanting "Croatia, Croatia," over and over again. What did
24 Mr. Kordic tell the crowd in the course of his speech that day in January
25 1992? He said: "I wish all of us the best with respect to the
1 Independent State of Croatia." He said: "This is Croatian land, and that
2 is how it will be."
3 Then Ignac Kostroman, the secretary of the HZ HB, took the stage,
4 and this is what he said to the cheering crowd: "We will be an integral
5 part of our dear state of Croatia, by hook or by crook."
6 And then he said something very telling. He said: "As for the
7 remaining population in our areas, the question is asked: What about the
8 Muslims? What about the Serbs and everyone else? Well, we can say to
9 them: Let them not worry about everything. Let them live in our state of
10 Croatia, and no one will miss even a hair on their head, if they accept us
11 as their brothers and accept the fact that they will be citizens of the
12 state of Croatia."
13 And indeed, as 1992 progressed, it must have seemed to the Bosnian
14 Croat leadership that the Muslims were not going to present a significant
15 impediment. As set out in the judgement at paragraphs 494 to 520,
16 starting with Busovaca in May 1992, the HVO progressively took over,
17 municipality by municipality; oaths of allegiance to the HVO and the HZ HB
18 were administered; the flags were hoisted over the public buildings; and
19 the Croatian dinar was introduced into circulation. Violent acts against
20 the Muslim population, designed to threaten and intimidate them, escalated
21 as the year drew to a close.
22 In the Trial Chamber's words at paragraph 537, by December 1992,
23 the situation in Central Bosnia was this: The HVO had taken control of
24 the municipalities of the Lasva Valley and had met only significant
25 resistance in Novi Travnik and Ahmici. Much of Central Bosnia was,
1 therefore, in the hands of the HVO. What we saw from January, after the
2 ultimatum issued by the HVO, was the unleashing of a campaign of attacks
3 targeted at the Muslim civilian population and designed to eliminate the
4 resistance that had by that stage been demonstrated.
5 The Trial Chamber found, in paragraph 827, that the underlying
6 acts of persecution were attacking towns and villages with a concomitant
7 destruction and plunder, killing, injuring, and detaining Bosnian Muslims.
8 Mr. Kordic suggests that these acts were not the result of a persecutory
9 campaign, just the unfortunate fallout of a war in which the HVO was
10 seeking to achieve legitimate military objectives.
11 Your Honour, there is one fundamental point to be recognised in
12 this case: The agenda of the HVO in Central Bosnia was not just a
13 territorial acquisition. It was to seize territory with a Muslim
14 population so substantially reduced and subjugated that it would present
15 no meaningful opposition to the union with Croatia, and it is the action
16 taken by the HVO in pursuit of that illegal objective that underpins
17 Mr. Kordic's conviction.
18 My colleague Ms. Brady will take you through the events that
19 happened in the various towns and villages, but let me make a general
20 point about Mr. Kordic's argument of collateral damage. Collateral damage
21 is, by its very nature, non-discerning and uncontrolled in its impact.
22 Collateral damage does not discriminate between ethnic groups. It cannot
23 distinguish a Croat civilian from a Muslim civilian, a Croat house from a
24 Muslim house. Yet Mr. Kordic does not explain why, over and over again,
25 in the villages under consideration, the death and property destruction
1 caused by the HVO operations was surgically confined to Muslim civilians
2 and Muslim houses.
3 The appellant then seeks to explain away the crimes that were
4 indisputably committed in Ahmici on the basis that they were not part of a
5 persecution campaign but merely ad hoc war crimes. In effect, he tries to
6 take Ahmici out of Central Bosnia, to remove it from the early morning
7 hours of 16 April 1993.
8 Let me take you to paragraph 613 of the trial judgement. The
9 order to attack Ahmici, which was issued by Colonel Blaskic, commander of
10 the Central Bosnia operative zone, was an order to ethnically cleanse.
11 Colonel Blaskic ordered the HVO military police to kill all the men of
12 military age, expel the Muslim civilians and burn down their houses. The
13 crimes that happened in Ahmici were not the spontaneous initiative of
14 unruly soldiers run amok. It was persecution ordered from the highest
15 level of the HVO military command. Your Honours, if I could, I'd like to
16 go into a closed session. I have discussed this with the registry
17 previously and I understand I will need to have a complete closed session,
18 because I would like to play some closed-session testimony from trial.
19 JUDGE SCHOMBURG: Closed session, please.
20 [Closed session]
12 Page 383 redacted, closed session
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
14 [Open session]
15 MS. JARVIS: Your Honours, thank you.
16 Mr. Kordic has claimed that his discriminatory intent for
17 persecution has not been proved, because there isn't any evidence that he
18 ever used inflammatory language or expressed prejudicial views about the
19 Bosnian Muslims. Well, even that is not strictly accurate. There is, for
20 example, the testimony of a witness at trial, a journalist who met with
21 Kordic and recalled him expressing his views on the threat of Islam and
22 the notion of a corridor from Bosnia through to Turkey. That evidence was
23 referred to in the Prosecution's closing trial brief at 436. But more
24 fundamentally, Your Honours, Mr. Kordic's suggestion that he can't be
25 convicted in the absence of evidence that he used ethnic slurs reflects a
1 misunderstanding of the mens rea requirement for persecution.
2 The relevant test clarified by the Appeals Chamber in Krnojelac at
3 paragraph 185 is the deliberate intent to discriminate on one of the
4 listed grounds, specifically, race, religion, or politics. The Krnojelac
5 Appeals Chamber also used formulations such as: Because of the victim's
6 membership in a group, or on account of their membership in a group. So
7 it's clear that what's required is for the victim's membership in one of
8 the designated groups to be the factor that propels the accused to violate
9 their fundamental rights. What is not relevant is whether the accused is
10 motivated by pure ethnic hatred, by a desire for money, for power, to save
11 his job, to advance his career, or for any other motive. The Krnojelac
12 Appeals Chamber confirmed at paragraph 102 that personal motive is
14 To conclude, even if the only thing that Mr. Kordic had against
15 the Bosnian Muslims was that they resided in large numbers on the
16 territories he so desperately wanted to see annexed to Croatia, that they
17 presented a barrier to his aspirations for Herceg-Bosna; that,
18 Your Honours, is enough. In order to eliminate the resistance the Muslims
19 posed, he enthusiastically contributed to the campaign to subjugate them
20 by reason of nothing other than their membership in a particular political
21 or religious group. That is enough to satisfy the mens rea requirement
22 for persecution.
23 Your Honours, I'll move very briefly in the few minutes I have
24 remaining to the -- Mr. Kordic's fifth ground of appeal concerning
25 definitions of armed conflict and international armed conflict.
1 First, the question of whether there was at all relevant times a
2 conflict in the areas we're talking about here. Mr. Kordic has argued
3 that there was not, based on the premise that the Trial Chamber failed to
4 find protracted violence before April 1993. However, the protracted
5 violence threshold is relevant only for internal armed conflicts, not for
6 international conflicts, such as the one under consideration in the
7 present case. This is clear from the Tadic jurisdiction appeal decision.
8 At paragraph 67, the Appeals Chamber said that the definition of armed
9 conflict varies depending on whether it is an internal or an international
10 armed conflict in question. At paragraph 70, the Chamber went on to set
11 out the relevant tests.
12 Clearly, by its very terms, the first alternative, a resort to
13 armed force between states, is the threshold test for international armed
14 conflicts. The second alternative, protracted armed violence between
15 governmental authorities and organised armed groups or between such groups
16 within a state, is the threshold test for internal armed conflict.
17 For international conflict, all that is required is proof of the
18 use of armed force between two or more states. There is no requirement
19 that the conflict be of a particular intensity or duration. So, for
20 example, the Celebici Trial Chamber at paragraph 208 stated that an
21 international armed conflict is simply any difference arising between two
22 states and leading to the intervention of members of the armed forces. It
23 makes no difference how long the conflict lasts or how much slaughter
24 takes place.
25 In the present case, the Trial Chamber found that there was a
1 conflict that was international in nature because of Croatia's
2 involvement. That is a point that the appellant skipped over yesterday by
3 simply asserting that this was not a case involving armed -- resort to
4 armed force between states. But the Trial Chamber found that is exactly
5 what it was.
6 Alternatively, Your Honours, even if the protracted armed violence
7 threshold is the relevant test in this case, it has been satisfied. The
8 highest threshold of protracted armed violence applies to internal armed
9 conflict to ensure that it is clearly distinguished from situations of
10 mere civil unrest, to which the laws of armed conflict have no
11 application. I refer again to the Celebici trial judgement at paragraph
12 184. But in this case, where we clearly have two organised military
13 formations engaged in high-intensity combat operations in Novi Travnik, in
14 October 1992, and in Busovaca in January 1993, these events can't be
15 mistaken for mere civil unrest. There can be no doubt of the Tribunal's
17 The appellant referred to the testimony of Mr. Watters, who made
18 the comment that prior to April, the conflicts between the parties had
19 appeared as punch-ups in comparison to what happened before that.
20 Your Honours, the witnesses -- the Witness Watters was actually making the
21 point that the April 1993 conflict was different because of its
22 coordinated scale up and down the Lasva Valley all at the same time. The
23 fact that he made the comment that this was different to what happened
24 prior doesn't render the military operations that the HVO and ABiH engaged
25 in prior to that, beyond the definition of an armed conflict.
1 Indeed, it's interesting to note that the appellant has never
2 contested that there were military operations in Novi Travnik and in
3 Busovaca involving conflict with the ABiH. Rather, he has focused his
4 efforts on attempting to blame the ABiH for starting it.
5 Very briefly on the arguments the appellant has made regarding the
6 overall control test, which was the standard enunciated by the Tadic
7 Appeals Chamber. Your Honours, it is settled jurisprudence of this
8 Tribunal that the overall control test is the relevant test for
9 determining when a prima facie internal conflict is internationalised by
10 the involvement of a foreign state. It was confirmed in Aleksovski, at
11 paragraph 147, and Celebici at paragraph 26. In both cases, the Appeals
12 Chamber concluded there were no cogent reasons in the interest of justice
13 to depart from the overall control standard.
14 Mr. Kordic relies on a nullum crimen sine lege point to say that
15 it should not be applied. But the point of the Tadic Appeals Chamber's
16 analysis was that the overall control test is and always was at all
17 relevant times the correct law. And indeed the Aleksovski Appeals
18 Chamber, at paragraph 126 to 127, considered a nullum crimen sine lege
19 argument identical in all material respects to the one that the appellant
20 raises here, and dismissed it as a misunderstanding of the Tadic
21 jurisprudence. The Prosecution submits that Mr. Kordic's argument should
22 be similarly dismissed.
23 And very briefly, to conclude, Your Honours, the indictment point
24 that he raised concerning the proper mode of pleading international armed
25 conflict based on the Simic trial judgement. But what is important to
1 note is that the Simic Trial Chamber also recognised that it was important
2 to consider whether other forms of notification to the accused, such as
3 the pre-trial brief, had made it clear to the intervening state was. In
4 this case, the Prosecution's pre-trial brief most certainly did that, and
5 I could refer you, for example, to paragraph 68 of the pre-trial brief,
6 also the Prosecution's opening statement at page 15 and page 85 of the
7 transcript, where it is also abundantly clear the intervening state was
8 alleged to be Croatia.
9 Indeed, in a motion hearing before the trial even started, on 16
10 February 1999, at page 530 to 531 of the transcript, the Defence
11 acknowledged that they knew full well that it was the -- Croatia who was
12 alleged to be the intervening state.
13 Your Honours, that concludes my submissions. I will hand over to
14 my colleague, Ms. Brady, unless there are some questions.
15 JUDGE SCHOMBURG: Judge Weinberg de Roca, please.
16 JUDGE WEINBERG DE ROCA: Thank you. I have a question not to you
17 specifically but to the Prosecution team, and I don't know if Ms. Brady
18 will come to this, but it's about document Z1380.4 and Z610.1, which the
19 Defence for Mr. Kordic challenged, challenged its authenticity yesterday
20 on page 60 and before that in its written submissions. And yesterday the
21 Defence added also another document, Z1406.1. My question is if these
22 documents have been also exhibits in other cases, and if so, if their
23 authenticity has been challenged.
24 MS. JARVIS: Thank you, Your Honour. I'm not in a position to
25 deal with that immediately, but I will confer with my colleague and see
1 whether she will respond to it in the course of her submissions.
2 [Prosecution counsel confer]
3 MS. JARVIS: Ms. Brady has indicated that she will cover that, and
4 so will make sure that she addresses your concerns.
5 JUDGE SCHOMBURG: May I ask you one question. It's about the time
6 frame of the armed conflict and the international armed conflict. I take
7 it, based on the -- please correct me if I'm wrong- I take it that both
8 parties agree that it's undisputed that at least since April 1992 there
9 was such an armed conflict. In paragraph 31 of the judgement, it reads:
10 "Based upon the foregoing, the Chamber finds that, while it was not until
11 April 1993 that a generalised state of armed conflict in the form of a
12 protracted violence broke out in the territory of Central Bosnia. Between
13 the HVO and ABiH, prior to that period, there were localised areas of
14 conflict which a state of armed conflict could be said to exist."
15 And then, in relation to the internationalisation, it reads, in
16 109, in the conclusion: "For the above reasons, the Chamber finds that
17 the conflict between the Bosnian Croats and the Bosnian Muslims in Bosnia
18 and Herzegovina was internationalised by the intervention of Croatia in
19 that conflict through its troops."
20 So from your point of view, does this meet the aforementioned test
21 you set out, and what about the beginning of the armed conflict and the
22 international armed conflict?
23 MS. JARVIS: Your Honours, our submission is that the
24 international armed conflict, as analysed by the Trial Chamber in this
25 part of the judgement that you refer to, extends back certainly to 1992.
1 Some of the evidence that the Trial Chamber referred to was that of
2 General Bobetko, who was a Croatian commander, who had been issuing
3 various orders and setting up command posts and things of the like. I'll
4 see if I can find that for you. That's at paragraph 125 -- yes, 125, 126
5 of the judgement. That stems back from the 10th of April, 1992. And if
6 you look at the totality of the evidence referred to by the Trial Chamber
7 in its analysis of the international armed conflict issue, you can see
8 that there are indeed many items of evidence stemming back from certainly
9 mid-1992 right through the period until January 1994. So our submission
10 is that the international classification of the conflict certainly relates
11 to the entire indictment period, as the Trial Chamber indicated.
12 JUDGE SCHOMBURG: Thank you.
13 MS. JARVIS: Thank you, Your Honour.
14 JUDGE SCHOMBURG: Ms. Brady, please.
15 MS. BRADY: Good morning. Good, Your Honours. This morning I'll
16 be responding to Kordic's arguments concerning all of the underlying
17 counts of his convictions. This is counts 3 to 43. So, in a relatively
18 short space of time, I'll be dealing with his arguments on his convictions
19 for unlawful attacks on civilians and civilian objects, murder, wilful
20 killings, inhumane acts and inhuman treatment, imprisonment, unlawful
21 confinement, wanton destruction and plunder, and if I get to it,
22 destruction of religious institutions.
23 Now, before I turn to what Mr. Smith called the core of his
24 appeal, he began by making submissions on a very important point, and that
25 is the question of the Trial Chamber's factual findings, and in
1 particular, whether or not they can be properly supported, seen as
2 properly supported in the judgement.
3 I think it's important to distinguish between two types of factual
4 findings that we see in the judgement. The first are the factual findings
5 regarding the crime base, such as: Did wanton destruction take place in a
6 particular location, like Stari Vitez or Vitez? Was plunder made out for
7 Novi Travnik? Did killings occur in Nadioci, Santici, and Pirici? Then
8 there are linkage factual findings, what Kordic did, his contributions,
9 not just on every particular attack but even during the intervening
10 periods, between the attacks, and these linkage factual findings can be
11 found throughout the judgement and collectively, of course, form the legal
12 basis for his liability under counts 3 to 43.
13 If we look at the crime base factual findings, we can agree with
14 Mr. Smith that the Trial Chamber did not, generally speaking, go through
15 and do an element-by-element analysis, did not explicitly set out, rather,
16 in the judgement, on an element-by-element basis, each of the underlying
17 crimes in each of the 30 or so localities.
18 What it did do, as Mr. Smith described, was to set out of the
19 evidence of the parties and then follow it by what he called a conclusory
20 paragraph of its findings, and he pointed out the example in paragraph
21 649. Your Honours, this style may not win the legal penmanship award. We
22 don't quibble with that. But that's not the issue. The real question is
23 whether this Chamber finds that those concluding factual findings are
24 sustained on the record and for which the only inference is that the Trial
25 Chamber must have accepted that evidence set out in the judgement before
1 the concluding paragraph to reach that factual finding.
2 Now, I can't go through each locality and each crime. We're
3 talking about 20 or 30 locations and somewhere in the vicinity of between
4 two and ten crimes, types of crimes, found for each. I think there must
5 be at least 200 underlying crimes. But what I'll do is when I go to the
6 core of his appeal, what I'll try to do is to try and highlight that, with
7 possibly a few exceptions, the Trial Chamber's factual findings can all be
8 supported on that basis. And in particular, Your Honours, you'll see
9 several references in the judgement from which it can be clearly inferred
10 that where the Trial Chamber did not reject evidence, it accepted it. And
11 I point you to two matters in particular.
12 If you look at the concluding factual findings on the crime base,
13 such as paragraph 649, paragraph 800, and paragraph 808, what you'll see
14 there, the Trial Chamber states that it rejects the Defence case and,
15 importantly, finds that the crimes were committed as part of a pattern,
16 the wider pattern of attacks. It's also very important to notice in the
17 judgement that where the Trial Chamber rejects evidence, it states
18 explicitly in the judgement that it does so, and we see several examples
19 of that, such as when witnesses had given testimony about seeing Kordic on
20 television saying certain things, the Trial Chamber was careful to say:
21 No. We're not going to accept that evidence. And it's set out in the
23 So from this, our submission is that the clear inference is that
24 the Trial Chamber accepted the evidence which it set out in the judgement,
25 sometimes it's in paragraphs and sometimes it's in the footnotes, except
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 where it explicitly rejected it. And again, when I go through and talk
2 about the factual findings on specific attacks and times, I'll try and
3 show you some examples of this.
4 Mr. Smith also mentioned and took issue with the Trial Chamber's
5 factual findings that I mentioned, the second type of factual findings,
6 those needed for the linkage to Mr. Kordic, and he said that the findings
7 are imprecise, or they're inconclusive, such as pointing to the one in
8 paragraph 586 about Busovaca, in which it was found that he was implicated
9 in the attack as a leader, asserting political and military authority.
10 And he similarly took issue with 631, 642, 669, and 726.
11 Now, this is a critical question, because it's hinged on the way
12 the appellant understands Kordic's legal liability for these counts 3 to
13 43. And in our submission, he's mischaracterised the true basis for his
14 liability. It comes down to paragraph 834, where the Trial Chamber sets
15 out its characterisation of Kordic's responsibility under counts 3 to 43.
16 And it labels his responsibility as this: To plan, instigate, and order
17 these crimes. What does this mean? What really is the legal basis for
18 Kordic's liability for these crimes? And it's critical and has to be
19 decided for your proper assessment of the linkage factual findings which
20 are in the judgement.
21 Mr. Smith said that the finding regarding these counts 3 to 43 is
22 for his "direct participation, through planning, instigating, ordering,
23 sometimes perhaps committing." In our submission, the true nature of
24 Mr. Kordic's legal liability for counts 3 to 43 - and I want to get away
25 for the moment from any legal labels and terminology - but the true reason
1 is because of his participation, his very significant participation, in a
2 common criminal plan, you could call it a common criminal design, you can
3 call it a common criminal enterprise, and this was at the heart of the
4 Trial Chamber's ascription to him of legal responsibility, and as such in
5 this respect, the factual findings linking him to all the crimes of which
6 he has been convicted are more than sufficient.
7 It's an important point, so I'll just detail a little bit more
8 about this basis for his liability. In our submission, it's clear that
9 the Trial Chamber found that the criminal plan was this: To subjugate or
10 remove the Bosnian Muslims of this region by various acts of mistreatment,
11 by unlawfully attacking towns and villages, by destroying their property,
12 by killing Bosnian Muslims and doing all the other various inhumane acts
13 that we see strewn throughout the judgement. These were the core crimes
14 of the common criminal design or plan to which he was a party.
15 Now, within that common criminal plan or design or enterprise,
16 Kordic played a multitude of roles, sometimes direct and sometimes what we
17 could call indirect. We have to keep in mind that the Trial Chamber was
18 looking at Kordic's contributions over a very long period of time, and his
19 contribution wasn't a static one. It was a dynamic one. And we even see
20 it's an evolving one. Sometimes he's participating very directly on the
21 ground in Busovaca and Novi Travnik. Sometimes he's authorising or
22 approving orders very directly, such as in Ahmici and the other mid-April
23 attacks in Lasva Valley and Kiseljak. And sometimes he gave orders
24 himself. Sometimes his role is best described as preparing. Most
25 importantly, at all times, he's planning at a strategic or wider level.
1 This conceptualisation of the true nature of his criminal
2 liability and whether this be through joint criminal enterprise, normal
3 principles, or through joint criminal enterprise combined with another
4 mode of liability, not only reflects the facts in this case, but when you
5 read the whole judgement, not just picking paragraphs out of context, if
6 you look at the whole of the factual findings and especially the Trial
7 Chamber's constant references to the criminal design or plan to which
8 Kordic is a party, it's clearly the way the Trial Chamber viewed his
10 It would also be very odd if his persecution conviction, in
11 paragraph 829, were hinged on this common criminal design, plan, or
12 purpose, JCE-type principles, and yet the underlying crimes through which
13 the persecution happened were not.
14 In brief, his liability under counts 3 to 43 is centred on the
15 common criminal plan and his significant contributions to that criminal
16 plan or design, and whether he's ultimately been found to be a committer
17 through a joint criminal enterprise or an orderer or a planner through a
18 joint criminal enterprise, the most important point is this, as the Trial
19 Chamber itself pointed out in paragraph 853: "He played his part as
20 surely as the men who fired the guns."
21 I'll turn back now to the core of his appeal. Responding to his
22 arguments is not easy, for this reason: By discussing each attack, each
23 municipality individually, the appellant has quite cleverly deconstructed
24 the events. But in doing so, in our submission, he's in fact created a
25 misleading characterisation of what actually happened. And what this
1 Appeals Chamber should be especially cautious about is not to fall into
2 the easy trap that this compartmentalized approach could invite. And just
3 as the Trial Chamber did, you have to keep all of the connections and the
4 relationship between all the facts and all the evidence firmly in mind.
5 The Prosecution acknowledged at the outset this is a complex,
6 circumstantial case, illuminated by occasional shafts of light of a direct
7 nature. And when you review these convictions, never lose sight of the
8 complex interrelationship of all the factual findings based on this truly
9 voluminous amount of evidence, and whether it's of a direct or indirect
10 nature, each fact, each piece of evidence, feeds into and informs the
11 assessment of the others. It's like a thick cable of facts and evidence
12 which led to his convictions.
13 Yesterday the point was made in a different context about
14 Judge Bennouna's comment on judicial or juridical impressionism. And it
15 leads one to think: This case is a bit like an impressionist painting.
16 When you stand really close to the painting, all you see is a bunch of
17 dots. You don't see the image. But when you stand back a bit, the image
18 starts to emerge. And when you see the whole picture, you have no doubt
19 about what you see. And when this kaleidoscope of evidence is considered
20 in its entirety, the only true picture which comes into focus is that
21 which was found by the Trial Chamber.
22 I note the time, Your Honours. Before going into each attack on
23 individual basis, that may be an appropriate moment.
24 JUDGE SCHOMBURG: Before we have the break, I understand your
25 point how to understand the judgement as such, but I would ask you, in
1 particular, to focus on count 10 and 12, because there it seems to be a
2 little bit more difficult, really, to find the factual findings of the
3 Trial Chamber.
4 MS. BRADY: Your Honour, I understand your concern. And in the
5 course of my next submissions when I turn to some of the attacks, I'll
6 definitely address that point. Thank you.
7 JUDGE SCHOMBURG: Thank you. The hearing stays adjourned until
8 11.00 sharp.
9 --- Recess taken at 10.31 a.m.
10 --- On resuming at 11.03 a.m.
11 JUDGE SCHOMBURG: Please be seated. Ms. Brady, before starting,
12 may I draw your attention to one point when you are now discussing the
13 counts through 43. I wonder about the mens rea underlying. We heard this
14 morning that we should accept that there was an action based on joint
15 criminal enterprise. However, maybe - and please correct me if I'm
16 wrong - in your final trial brief, at paragraph 445, the Prosecution
17 submits that Mr. Kordic is responsible under 7(1) for planning and
18 ordering. Does it mean that your contribution of this morning, does it
19 mean that you now waive your approach?
20 MS. BRADY: Your Honour, we don't waive our approach. We
21 acknowledge that the Prosecution closing brief at 445 does make this
22 reference, but we submit that it must be read in conjunction with
23 paragraphs immediately above it, and in particular, paragraph 443 of the
24 closing brief, in fact, in our submission envisages such a concept of
25 principles of joint commission through jointly being part of a criminal
1 design or plan. Your Honour, I just can't locate my copy of the portion
2 of the closing brief. Just one moment. Excuse me.
3 And, Your Honours, we can see that the Prosecution closing brief
4 begins with an analysis of persecution in which it's stated that he's --
5 he should be liable as a co-perpetrator for the persecution. Then when we
6 go to counts 3 to 4 and all the remaining ones up until 43, we noted in
7 paragraph 443 that all of these crimes are constituent elements of the
8 systematic pattern of victimisation of the Muslim population in Central
9 Bosnia between November 1991 and March 1994, and accordingly are discussed
11 Then when you go into the next paragraphs submitting that he be
12 responsible for planning and ordering, in our submission, the only
13 reasonable way to read it is as -- given that it's a joint crime involving
14 so many people - of course he's not directly doing every single step. You
15 can't just look at each attack and microscopically analyse was he ordering
16 on this occasion. But our submission is that if you read it, the whole
17 tenor is that he's part of a joint commission, a joint plan, a criminal
18 plan, and that's the basis for his liability. And that's either a joint
19 criminal enterprise through his own contributions in ordering and planning
20 and instigating or that he's in fact ordering and planning through a joint
21 criminal enterprise.
22 JUDGE SCHOMBURG: So you would stick finally to that what you said
23 there, that, I quote and it's a quotation in itself: "Namely he directly
24 or indirectly intended the crimes to be committed. Kordic either directly
25 planned and ordered the crimes or accepted the risks that crimes within
1 the jurisdiction of the Tribunal would be committed as an ordinary result
2 of his plans and orders dolus eventualis."
3 MS. BRADY: Your Honour, in our submission all of the corps -- all
4 of the crimes all of the underlying crimes are actually corps crimes, if
5 we look at it as a joint criminal enterprise, and they were all intended
6 by the criminal design which was aimed ultimately at the further purpose
7 to remove or subjugate the Bosnian Muslim population. But there may well
8 be some crimes which possibly could fall outside that aimed at shared
9 intention and then of course we're in the land of joint criminal
10 enterprise category 3, and our submission is that his criminal
11 responsibility then is for all crimes intended by that criminal design and
12 any reasonably foreseeable ones of which he willingly accepted the risk.
13 And I'm not sure if we call this a dolus eventualis or inadvertent
14 recklessness. I realise that those terms come with their own specific
15 understanding based on different criminal systems, but we would prefer to
16 stick with the jurisprudence of the Tribunal on joint criminal enterprise
17 category 3 and say that he was either aware of the risk -- sorry, he was
18 aware of the risk and that he willingly took the risk or at least was
19 indifferent towards that risk.
20 JUDGE SCHOMBURG: So this would in fact be your definition of
21 dolus eventualis as opposed to direct intent or dolus directus?
22 MS. BRADY: Yes, Your Honour.
23 JUDGE SCHOMBURG: Thank you for this clarification.
24 MS. BRADY: Thank you, Your Honour.
25 I'll move now to the individual attacks. And if I understand, we
1 have approximately one hour to go through what is a voluminous set of
2 crime base and factual findings on his responsibility. What I'll try and
3 do is go through it on a chronological basis.
4 Yesterday in argument Mr. Smith and Mr. Naumovski interchanged
5 their arguments and didn't do it exactly in a chronological order, but in
6 our submission, it is more logical to do it this way, and it's also very
7 key, because out of this chronological pattern, we can see this emerging
8 pattern and the role of Dario Kordic evermore clearly.
9 Turning first to Novi Travnik, his conviction for wanton
10 destruction and plunder during that week of 19 to 26 October. The primary
11 or the first question he asks is: How could this be war crimes when it
12 was just normal fighting during a civil war and not part of a persecutory
14 Firstly, his hermetically or his analysis of the fighting in Novi
15 Travnik in this vacuum, this hermetically sealed vacuum which he divorces
16 from all the other facts which my colleague Ms. Jarvis mentioned this
17 morning and which could be found in paragraph 511 of the existing
18 persecutory campaign in Novi Travnik and the other Central Bosnian
19 municipalities since the 1992 takeovers. It's not only artificial to
20 separate it, it's actually wrong. And the Trial Chamber was more than
21 entitled to consider that background, that persecutory background, when
22 considering whether what took place then was simply destruction in the
23 course of a normal war or, as the Trial Chamber found, war crimes, namely
24 wanton destruction and plunder.
25 Now, he says that -- or Mr. Smith said, argued that certain key
1 elements, certain key factual findings are missing from the Trial
2 Chamber's analysis here on wanton destruction and plunder. Looking at the
3 witnesses' evidence of the extensive and deliberate destruction of
4 Muslim-owned houses, businesses, restaurants, in our submission this
5 cannot be considered anything but destruction on a large scale which was
6 not justified by military necessity. How could it be as he calls it
7 expectable collateral damage when you have witnesses like C, Witness C, at
8 transcript 796 to 800 who described how the structures in residential
9 areas and some distance actually behind the front line were set on fire
10 and demolished? And bringing it back to his point that he made about the
11 lack of concrete findings regarding lack of military necessity. Not just
12 for Novi Travnik, but it's equally applicable for all the villages we see.
13 In village after village we see the same deliberate burning, the same
14 torching of houses. Sometimes the soldiers have gasoline pumps attached
15 and are spraying it and then setting it afire. How could this be urgent
16 and required for the attainment of a known military purpose to burn down
17 houses? It's beyond explanation, and in our submission, the factual
18 findings on this point for Novi Travnik, as in other places, is quite
20 And in terms of plunder, surely witnesses like Ismet Halilovic's
21 description of HVO soldiers stealing people's cars must satisfy the
22 unlawful appropriation needed for plunder in view of the clear absence of
23 circumstances rendering the appropriation lawful under international law
24 such as contemplated by The Hague regulations. He also asked yesterday
25 what about sufficient ministry value? Well, for a start, with plunder it
1 has -- it's not just looked at from an individual point of view. It's
2 looked at also as Celebici Trial Chamber notes from an overall effect as
3 well. And again, what I'm saying about plunder in Novi Travnik is equally
4 transportable when you look at the findings on plunder, on lootings in the
5 other locations. The findings don't evaporate at all.
6 On the second point he raises for Novi Travnik, he asks why is
7 Kordic liable for the criminal acts done by the other HVO soldiers?
8 Factually, we know from the Trial Chamber's judgement that it's because of
9 the leading role he played in the fighting. How could this be an
10 unreasonable finding? True, it was Colonel Stewart's first day on the
11 ground in Central Bosnia, but let's not forget he's an experienced
12 military commander, and when he formed the impression of Kordic being an
13 effective military commander, this was based on his own direct
14 observations, how Kordic was interacting with the other soldiers, how
15 Stewart negotiated with Kordic himself.
16 I also draw Your Honours' attention to the very telling military
17 reports, and they're summarised at paragraph 528. For example, in Exhibit
18 Z243, the CBOZ report over the names of Blaskic and Kordic. This was
19 spoken about yesterday. "While Defence operations are being conducted,
20 Dario Kordic and I are in Novi Travnik continuously leading the military
21 operations with deep knowledge of the situation and keeping all forces
22 under control."
23 See also Exhibit Z249, a co-report by Blaskic and Kordic on the
24 24th of October relating directly to the Novi Travnik military operations.
25 The Trial Chamber also didn't overlook other very important facts
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 showing by this stage, by this time he had clear political and military
2 authorities which this crystallized. They found this, for example, from
3 his role in the Ahmici barricade incident. At the same time, 19th to the
4 20th of October, 1992. And even from what he -- from his leading role,
5 leading the HVO delegation at the mixed military working groups just a
6 month later.
7 In our submission, there's -- the Trial Chamber was quite correct
8 to ascribe him with responsibility under 7(1) for the HVO soldiers'
9 criminal acts either under the principles of common criminal design which
10 we say by that stage had crystallized, or even on a more direct basis as
11 the evidence clearly satisfies.
12 Turning to Busovaca in January of 1993, his argument was that the
13 ABiH began the fighting and any HVO reaction were just normal military
14 ones and not part of a campaign of persecution. Again be very careful
15 with how he removes Busovaca. He takes it away from the rest of -- from
16 its context. And in our submission, from the entirety of the evidence,
17 the finding at paragraph 576 that the attack on Busovaca was the beginning
18 of a pattern of attacks designed to remove or subjugate the Muslim
19 population was the only reasonable conclusion. And again Busovaca has to
20 be viewed in light of what had been going on there since the takeovers in
22 I won't deal with all the evidentiary issues that he raised or the
23 arguments concerning some of the evidence, but just on a few more of the
24 salient ones.
25 He mentioned Witness AS's evidence. This was the fourth military
1 police insider. It's true. AS said the HVO military police were never
2 ordered to direct offensive operations against civilians or burn Muslim
3 houses, but it's difficult to see when AS himself agreed with the
4 Prosecution's description of this attack as a cleansing operation to see
5 how he could have understood this to mean a normal military cleansing or
6 cleaning or clearing operation. It's very difficult to understand that
7 interpretation when in re-examination Witness AS, at T16437, agreed with
8 the Prosecution's description that it was an ethnic cleansing operation.
9 In any event, just as all the evidence in this case, AS is just
10 one piece of the complex circumstantial cable of evidence that the Trial
11 Chamber relied on to find that what took place in Busovaca in January of
12 1993. It wasn't just simply collateral consequences of a legitimately
13 fought civil war but was, in fact, the beginning of this pattern of
14 unlawful attacks against civilians and civilian objects followed by the
15 killings and other inhumane acts, wanton destruction, and plunder. And
16 most probative on the situation for Busovaca is the witnesses'
17 descriptions themselves. In particular, I invite Your Honours to look at
18 Witness J, transcript 4524 to 29, and AG at transcript 14138 to 39. These
19 witnesses spoke of what we might call the signature details which we see
20 time and again in the later HVO attacks in April and June. Early morning
21 shelling and sniping, blowing up and setting fire to Muslim houses, shops,
22 restaurants, and widespread looting of houses by the soldiers.
23 When considered alongside the January letter, the ultimatum
24 letter, the only reasonable conclusion is that this attack was either
25 deliberately aimed at civilians and civilian objects or, at the very
1 least, was indiscriminate in failing to discriminate between civilians and
2 military objectives. And his attempt to recharacterise this as a normal
3 military operation with just sort of unfortunate but expectable collateral
4 consequences is factually unsustainable.
5 As for his point about Blaskic being stuck in Kiseljak when it
6 commenced, I think that this actually, maybe unwittingly, perhaps to
7 further highlight the point because Kordic was in control of the
9 On his second argument about Busovaca, why is he legally liable
10 for the soldiers' criminal acts in Busovaca; factually, the Trial Chamber
11 premised it on the fact that he played a leading role in exerting his
12 effective military authority in the attack. Now, I can't possibly
13 re-argue nor should I the whole case, the whole evidence in the case, but
14 there's no other reasonable interpretation which is open other than at
15 Busovaca he had this very active military role.
16 Look at what the international witnesses like Major Jennings and
17 Colonel Stewart thought about him, describing his role as effectively a
18 military commander there. Look, too, at the tape recording that was
19 mentioned yesterday, the tape recording of the phone call between Blaskic
20 and Kordic on the 23rd to 24th of January, 1993, and summarised in
21 paragraph 577.
22 Now, he can now try to reduce its import and say, well, this is
23 just a sort of meddling in military activities or a joke or bravado, but
24 these arguments were rejected by the Trial Chamber, and I suggest its
25 proper reading shows exactly why it was so rejected. And in that phone
1 call, Kordic in fact orders Blaskic to fire at Kacuni, telling him to
2 burn everything.
3 I also invite Your Honours to look at him giving military commands
4 such as exhibit Z421.4 where he's actually ordering an HVO brigade on the
5 30th of January, 1993, to send a company to Busovaca to carry out combat
7 He says that he can't know or doesn't know on what basis he bears
8 7(3) possibility for Busovaca. It's because of this: By January 1993, he
9 was part of a common criminal plan or design to subject the Muslim people
10 of Central Bosnia to a variety of unlawful acts and mistreatment so as to
11 subjugate or remove them from the area, and in this respect, we can't
12 forget that by this stage he was the most influential political leader in
13 the region, not to mention having this significant input into military
14 matters. And in our submission, what happened in Busovaca, all the
15 unlawful attacks fell squarely within that common plan or design or at
16 least were reasonably foreseeable and ones that he ran the risk, willingly
17 ran the risk.
18 I'd like to turn to the question that he raised about a possible
19 inconsistent finding, and it relates to the inconsistency of findings in
20 paragraph 576, that there were no unlawful attacks on Merdani, and yet the
21 Trial Chamber found wanton destruction for the purposes of count 38.
22 If we look at Witness A's description at transcript 354 to 56 of
23 the shelling that Merdani suffered, and when we look at it combined, in
24 combination with the video made by Mr. Capelle, the one from the
25 helicopter, which showed the clear destruction to this civilian village.
1 In our submission, this is sufficient for a finding under wanton
2 destruction. If anything, in our submission the Trial Chamber could also
3 have convicted him under counts 3 to 4, the evidence showing a clearly
4 unlawful attack that day, deliberate, or at the very least indiscriminate.
5 So if there is any error which arises from this inconsistency, it's inured
6 to the accused's benefit.
7 Yesterday, Mr. Smith said that there was a generalised -- he said
8 there is a general submission, lack of findings for the count 4, attacks
9 against civilian -- unlawful attacks against civilian objects, and there
10 was a general lack ever finding that the damage or destruction to civilian
11 objects was extensive. Now, of course, the notion of extensiveness of
12 damage to civilian objects, it's difficult to define with great precision.
13 However, in our submission, for Merdani just as for the other villages
14 there were ample findings and ample references to evidence in the
15 judgement to support that element for wanton destruction.
16 I'll turn now to the mid-April attacks in the Lasva Valley. My
17 colleague Ms. Jarvis this morning mentioned that his treatment of Ahmici
18 has to be very carefully reviewed. He now admits that what happened in
19 Ahmici was a clear case of war crimes. He calls them ad hoc war crimes,
20 in no way capable to the attacks happening simultaneously in the villages
21 up and down the Lasva Valley, as if it were some kind of aberration.
22 This point has to be completely disavowed. Yes, Ahmici was the
23 high point. Yes, it suffered the worst out of all of the villages. But
24 to see the attacks on all the Lasva Valley villages in April, and we're
25 speaking of a distance, I think, from Busovaca to Kiseljak of 25
1 kilometres, to see it as anything but an orchestrated and connected
2 pattern of events would be completely unreasonable.
3 Now, my colleague Mr. Farrell yesterday already addressed you
4 about his main argument on Ahmici, and it was hinged on AT's testimony. If
5 you accept the findings in 631 that it was reasonable to conclude, based
6 on AT's evidence, on Blaskic's orders on the 15th and 16th of April, all
7 the facts regarding Blaskic's and Kordic's working relationship, we could
8 call it, if you accept on the basis of all that that it was reasonable
9 that Kordic was present at the meeting of politicians on the 15th of April
10 at which the attack to cleanse Ahmici and the other Lasva villages was
11 planned and at which Blaskic's illegal order to kill all the military men,
12 expel the civilians and set the houses on fire was approved, then of
13 course you don't need to go any further to find that what happened on the
14 16th of April in Ahmici were war crimes and persecution, and his criminal
15 responsibility flows from that.
16 But the point was stressed yesterday, and I want to make it again
17 because it's important when we come to look at the other attacks. AT's
18 evidence, of course it's very important, but it's not the only evidence of
19 the existence of the criminal design or plan upon which the entire case,
20 whether it's Ahmici or the other ones, rises or falls. Instead, the focus
21 always has to be on the pattern of events unfolding simultaneously through
22 the Lasva Valley in over 20, 25 different localities between 16 and 18
23 April. Was it just a coincidence that the same pattern of attacks, the
24 early morning shelling and sniping on Muslim only or Muslim majority
25 villages, taken by surprise, Croat neighbours having been forewarned
1 before in many of them, killing people in often house-to-house raids,
2 sniping civilians, setting fire to their houses and businesses, stealing
3 their personal property like jewellery, TVs, refrigerators. Was this just
4 all a coincidence that happened up and down the valley at once in
5 legitimate military operations?
6 And this goes to the heart of his argument when he said that the
7 Trial Chamber merely just found HVO military attacks on villages. No, it
8 didn't. It found much more than that. It found an orchestration of
9 attacks by the HVO, an orchestration that was clearly aimed at an illegal
11 In his brief he didn't go through it so much yesterday, but he did
12 make a point in his brief that I would like to come back to. At times in
13 his brief he implied that some of the international witnesses may have
14 countenanced the possibility that what happened along the Lasva Valley can
15 be explained by FIBUA, fighting in built-up area techniques.
16 Now, international witnesses like Stewart and Bowers, yes, they
17 acknowledge the existence of this technique, but in fact they rejected the
18 idea that the destruction such as occurred in the various places, Ahmici
19 and all of the other places, could be explained by that. For example, for
20 Ahmici, Colonel Stewart dismissed it out of hand because of the systematic
21 and surgical nature of the destruction and, for example, the use of
22 snipers to cut off escape routes for civilians who were trying to flee.
23 I'll turn now to the grouping of villages Nadioci, Pirici and
24 Santici, and I'll deal with the sufficiency of factual findings and at the
25 same time try to address the Pre-Appeal Judge's questions directed at the
1 parties on the 29th of April as to the factual findings for killings and
2 inhumane acts and inhuman treatment.
3 Briefly in relation to the killings we note in particular
4 reference to footnote 1241 and especially exhibits Z1583. These are death
5 certificates of people who were killed in Ahmici and the associated
6 hamlets on the 16th and 17th of April showing 28 people who died in
7 Santici, 16 in Pirici, and 3 in Nadioci.
8 For inhumane acts and inhuman treatment here, for Pirici we note
9 exhibit Z1583 -- sorry, excuse me, we note exhibit Z1594.3, which is
11 Ms. Enes Hrustanovic born in Pirici. We note that Nura Pezer at T15449 to
12 50 describes her husband as badly injured and then shot and killed by the
13 HVO there. And finally for Nadioci we note the testimony of S at T7941 to
14 42, who testified about a woman detained and raped at the Bungalow in
16 In our submission, these descriptions are legally sufficient to
17 fulfil the elements of inhumane acts under Article 5 and inhuman treatment
18 under Article 2 either by mounting to serious physical or mental suffering
19 or injury or at the very least serious attacks on human dignity.
20 At this point, if I could try and address the question posed by
21 Judge Schomburg relating to how these particular counts fit within the
22 joint analysis through joint criminal enterprise.
23 In our submission, the inhumane acts in its various forms
24 committed against the civilians would all fall within the common core JC 1
25 centre of the criminal design. At the very least, they would fall within
1 those, if we think about category JCE 3 within those that were reasonably
2 foreseeable and for which he willingly ran the risk.
3 Now, turning to his arguments on the three hamlets from Ahmici,
4 again he says -- again he says that any harm done was simply expectable
5 collateral damage during legitimate fighting in a built-up war, and points
6 out that those were both strategically located and defended. Again, these
7 pattern -- these attacks on Nadioci, Santici, and Pirici were part of the
8 simultaneous pattern of attacks by the HVO involving the same types of
9 clearly criminal conduct, clearly unlawful behaviour in the conduct of
10 hostilities. Besides, what military objective is he saying was the target
11 here? He can't just say oh, well, the whole village or one of the
12 villages was on a useful road and therefore I can use whatever means, even
13 illegal ones, to take it. It has to be shown that there was a legitimate
14 military object and a lawful means of achieving it, and unlawful means
15 such as indiscriminately bombarding a whole village or deliberately
16 sniping and shooting at civilians or burning down houses, it can't be
17 sanctioned obviously because a village is on a good road and useful for
18 communications and transport.
19 Regarding his argument about even if the illegal orders were
20 issued in relation to Ahmici, this doesn't prove that they applied to the
21 other locations or that he intended or foresaw that the crimes in the
22 other locations would take place. Even if we were to adopt his very
23 narrow reading of what the plan is or what the orders are, his argument
24 begins, in our submission, on a false premise.
25 As my colleague Mr. Farrell pointed out yesterday, the illegal
1 orders were not just confined to Ahmici. We have to keep that in mind.
2 If we look at the whole package of evidence, Blaskic's orders, for
3 example, were directed to all units, and just take a look at the combat
4 issue -- orders issued on 16th of April at 1.30 a.m., such as exhibit Z676
5 and exhibit D343. It's also important to bear in mind that the HVO
6 representatives from each of the main municipalities that we're talking
7 about here on the evidence of AT accepted the meeting which planned and
8 authorised those illegal orders. We had Kordic, Ivan Santic, the
9 president of Vitez HVO, Pero Skopljak, the chief of police in Vitez, Zoran
10 Maric, the president of HVO Busovaca, and a representative from the HVO
11 Novi Travnik.
12 The argument also in our submission doesn't just begin on a false
13 premise but it ends with a mischaracterisation, and it misses the key
14 point. And from all the evidence, the Trial Chamber was not unreasonable
15 to conclude by at least the eve of 15th of April 1993, and this was their
16 finding in paragraph 642, there was a common criminal design involving
17 Kordic to ethnically cleanse these villages and towns of Lasva Valley, and
18 his liability for those crimes arises because, as a member of the JCE,
19 indeed as a planner and an instigator of it -- in it, he intended those
20 crimes to take place as a means to pursue the ultimate criminal goal or at
21 the very least willingly ran the risk that they would occur as a
22 reasonable -- as a foreseeable byproduct of this criminal plan.
23 I won't dwell on Stari Vitez and Vitez. He was very brief on
24 these villages yesterday. In the interests of time I'll move on to
25 another set of villages.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Yesterday in submissions neither Mr. -- Sorry.
2 JUDGE SCHOMBURG: May I just interrupt you. You directed us and
3 I'm very grateful for this in relation to Nadioci, Pirici, and Santici, to
4 witnesses, to the testimony of witnesses, to exhibits, and so on, but
5 where in the judgement do we find this?
6 MS. BRADY: Your Honours, in the judgement, when you look at
7 footnote 14 -- no, sorry, 1241, we see reference to exhibit Z1594.3.
8 That's the reference for what happened in Pirici. When it comes to, for
9 example, Santici and Nadioci, I am speaking here of evidence which was not
10 directly cited precisely in that footnote but which is on the record, and
11 these witnesses have been accepted in other portions of the judgement for
12 reliance to make other factual findings, and we can infer from this that
13 the Trial Chamber has accepted their evidence in that respect and there
14 being no reason to the contrary, the Trial Chamber could reasonably have
15 accepted their evidence in relation to these other aspects of their
17 That's the highest I can put it, Your Honour.
18 JUDGE SCHOMBURG: Yes, but to insist on this, you -- in the
19 beginning, you highlighted that what was already discussed during trial,
20 that it seems to be more or less a kind of a picture of impressionism, and
21 we have to bring the bricks together. But would it, in your mind, be
22 sufficient first to address certain acts in the footnote and then refer us
23 to what is behind the footnote? Is it sufficient for a judgement in
24 criminal matters?
25 MS. BRADY: Your Honours, in our submission, based on what I said
1 in my earlier part of my submissions, this is the technique which is used
2 here. I said that perhaps it -- we would wish for better legal clarity to
3 join up every piece of evidence that was relied on for a particular fact,
4 but that doesn't mean that when you come to review, what you're basically
5 doing is not so much to catch out whether there are difficulties with the
6 Trial Chamber but whether a conviction is safe.
7 JUDGE SCHOMBURG: Yes. Thank you.
8 MS. BRADY: Thank you.
9 I'll turn briefly to Donja Veceriska and Gacice. He didn't
10 mention these yesterday, but I'd just like to make a few points in passing
11 because they are important for this proper view of the whole -- the whole
12 pattern. And in this respect, Your Honours, I point to what happened in
13 Donja Veceriska -- the description of what happened in Donja Veceriska at
14 645 where Witness V gives the description of what happened when, after the
15 shelling began at 5.30 with the anti-aircraft gun shooting from the
16 factory nearby, and then grenades were thrown into the houses and the
17 residents and others were arrested and beaten and then the majority of
18 Muslim houses were burned and people were killed and the village was
19 destroyed by explosives and fire.
20 Does this strategic position on the up-slope of a hill overlooking
21 the Vitezit factory change things? No, it doesn't sanction HVO soldiers
22 to bombard them by using this indiscriminate shelling and firing, throwing
23 grenades into people's houses and firing deliberately at civilians. It
24 doesn't justify the murder of local civilian inhabitants, burning down
25 their houses and stealing their valuables. We would think as well that if
1 it was so strategic, one would expect that an army would want to keep it
2 as much intact as possible.
3 I also want to mention that in relation to all the what we will
4 call the non-Ahmici villages, we can't forget that the Trial Chamber had
5 other very important evidence corroborating not just the existence of the
6 common criminal plan but indeed Kordic's active engagement with it. For
7 example, my colleague Mr. Farrell pointed out that he was seen with
8 Kraljevic in the Vitezovi barracks pouring over a map and discussing
9 military matters, and it makes no difference if this was on the 15th or
10 the 16th of April. We also point out the VBOZ duty officer's logbook
11 which my colleague Ms. Kind mentioned, and it records ten phone calls
12 between Blaskic and Kordic on the 16th of April, starting at 9.00 in the
13 morning until 7.00 at night, 7.30 at night discussing the details of the
14 military operations. And Ms. Jarvis mentioned the very telling one at
15 1802 where Kordic is telling Blaskic, Pasko has finished it off and is
16 pressing on.
17 He didn't mention the villages of Loncari and Ocehnici. I won't
18 address on those, and I'll move now to Rotilj and the other Kiseljak
19 villages in April and then in June of 1993.
20 You'll know from the map that this area of Kiseljak, the villages
21 of Gomionica, Svinjarevo, Gromiljak and the others, this is only some 25
22 kilometres down the valley. So in fact what's happened is the action,
23 this pattern of attacks has moved down here. I'll deal first with the
24 issue he raised yesterday about the sufficiency of factual findings on
25 this point, and in our submission, it's clear that when you read the last
1 sentence of paragraph 809 which, at the Status Conference on the 6th of
2 May, all parties agreed that this last sentence should in effect be read
3 as a separate -- like a separate paragraph, when you read that together
4 with paragraph 808, it's clear that the findings there apply to the
5 previous facts which had been set out by the Trial Chamber in the
6 preceding paragraphs 805 to 808.
7 Now, we do recognise his -- that he's pointed out that the
8 reference to Kiseljak municipality is omitted in 809. I can't explain
9 this by any other means except to say that if you read the whole of that
10 chapter 6 and in light of paragraph 806 and 808 in particular and then
11 834, this has to be a clear drafting error, and I can't explain it any
12 more than that.
13 I'll deal now with Naumovski -- Mr. Naumovski's argument. What
14 Mr. Naumovski failed to say when he discussed these attacks in April and
15 June is that what happened in these villages mirrored what happened in the
16 other places. If we look at paragraph 665 and footnote 1327, the pattern
17 of destruction almost follows a script. Svinjarevo, houses set on fire,
18 mosque burnt down, Croat houses remaining intact. Gomionica, shelled by
19 HVO, plundered, houses set on fire. The list goes on.
20 He can't -- his argument that Rotilj was a militarily strategic
21 place, how can this justify what happened when the evidence actually
22 discloses that the TO was asked to surrender the guns before the HVO
23 shelled the village and then the houses and barns were set on fire? How
24 could it ever make the burning down of houses in all these villages as
25 being somehow justified by military necessity?
1 Now, his main argument, of course, on this was the link to Kordic,
2 and in our submission, the Trial Chamber was quite correct to link these
3 attacks on Kiseljak villages in mid-April as part of the larger pattern of
4 attacks and falling within the scope of the criminal design to which
5 Mr. Kordic was a party. And it's not inconsistent with the finding that
6 the Trial Chamber found before, that he had no real control over Kiseljak.
7 It's not about that. It's about the scope of the criminal design. And we
8 can see that the Trial Chamber has made this finding.
9 If we look at 669, again it's not like they disassociate
10 themselves with all the other evidence, but in particular here they're
11 looking at the close temporal and geographic proximity to the Lasva Valley
12 attacks, Blaskic's orders, Z733, when it says we're keeping the very top
13 or the top or just the leadership of the HZ HB informed, and particularly
14 this symbiotic, entwined relationship between Kordic and Blaskic. Just
15 look at the frequency of their discussions on military matters from the
16 16th through to the 20th of April. No wonder the Trial Chamber found that
17 Blaskic would not have launched the attacks without Kordic's approval and
18 that Kordic was associated with them.
19 Finally, I'll turn to the attacks on Tulica and Han Ploca on the
20 12th and 13th of June. This two months after the mid-April attacks and
21 this time the action has moved a bit further down the valley. Again
22 mirroring the previous attacks Tulica an all-Muslim village in the midst
23 of Croat villages. The hallmark features again, heavy shelling; HVO
24 soldiers setting houses on fire; applying gasoline through pumps or
25 sprays, killings, women being forced to give up money and jewellery,
1 survivors rounded up for detention. Likewise Han Ploca.
2 JUDGE SCHOMBURG: Sorry could you please guide us to the paragraph
3 or footnote in the judgement?
4 MS. BRADY: Yes, Your Honour. I'm referring to paragraph 721 for
5 Tulica, and paragraph 722 for Han Ploca and footnotes accordingly.
6 JUDGE SCHOMBURG: Thank you.
7 MS. BRADY: In our submission, no error arises in finding that
8 these attacks were part of this orchestrated and sustained HVO attacks.
9 And as for the link to Kordic, well, Mr. Naumovski, he didn't mention the
10 real link via the common criminal plan. Instead, he focused on the Trial
11 Chamber's reference to Witness Y seeing Kordic in the Kiseljak barracks as
12 if it's all based on that. But that's not why Mr. Kordic is linked to
13 these June crimes in Kiseljak. It isn't did Mr. Kordic's singular
14 involvement in the day-to-day operation of the attack of one particular
15 attack that makes him liable. It's not about basing this part of his
16 conviction as one person being in one place at one time. It's for his
17 role in the common criminal design or plan, the plan of which he was an
18 integral member of. And so for that reason, there is no error in the
19 Trial Chamber's finding that he was associated with the giving of orders
20 to attack these places and thus liable.
21 In the two minutes remaining, I'll turn extremely briefly to
22 detention crimes. Not much was said on these. In fact, Mr. Smith said
23 that he was resting on his brief on this point, but I want to turn briefly
24 to his challenge as to the sufficiency of findings as to detainees being
25 civilians or protected persons, and in this respect, I draw Your Honours'
1 attention to basically all of the findings, all of the summary evidence,
2 774, 777, 780, 81, 783, 790 to 92. And on this evidence of Muslims who
3 had been arrested, rounded up, and taken to detention centres following,
4 immediately following the attacks, the Trial Chamber's find information
5 paragraph 800 become clear. The Trial Chamber wasn't wrong to reject his
6 argument that the imprisonment of these Muslim civilians was not unlawful
7 because they had been detained somehow for their own safety or their own
8 security. The circumstances simply do not sustain any reasonable
9 inferences but that this detention was indeed lawful.
10 In fact, it's getting close to what the ICRC commentary rejects,
11 this wholesale labelling of everyone from a certain political or ethnical
12 background as a threat to security. Finally as to the link to Kordic, the
13 Trial Chamber was not in error to find in 802 that this unlawful
14 confinement was part of the common design to subjugate the Muslims. Let's
15 remember it begins with the -- with the initial assault and then it ends,
16 it culminates in detaining any surviving Muslims. We must look -- pay
17 particular attention as the Trial Chamber did to the regularity, to the
18 systematicity of this going on.
19 And the Trial Chamber was not an in error to draw inferences from
20 his position and activities as a political leader to find that he ordered
21 and planned for the coming into existence of the detention centres in the
22 areas in which he held responsibility, namely those in the Lasva Valley.
23 And his argument yesterday that some of the Prosecution witnesses had
24 agreed that he perhaps had no political authority outside of Busovaca is
25 beside the point. It doesn't, as he puts it, eliminate the factual
1 predicate for the detention findings for all but the Kaonik prison. The
2 factual predicate is there. It's through the common design or the plan to
3 which he was a major party.
4 On sentencing, the Prosecution rests on its submissions in its
5 brief, and just to reiterate, we would not take issue with some of the
6 matters such as family circumstances may as a matter of law be mitigating,
7 just as the Kunarac Appeals Chamber noted that. But just as in Kunarac,
8 the question is: Is error shown in the exercise of discretion in giving
9 no weight to such circumstances when compared to the seriousness and the
10 gravity of crimes? And just as in Kunarac, we would submit there would be
11 no reason to mitigate his sentence on this basis or any of the factors he
12 puts forward as mitigating.
13 Your Honours, that concludes the Prosecution's case except for the
14 one point that Her Honour Judge Weinberg de Roca raised about the --
15 whether the authenticity of three documents had been challenged in other
16 cases. If I can with your indulgence, the Prosecution is looking into
17 this matter and will get back to you as soon as we have that information.
18 Thank you.
19 JUDGE SCHOMBURG: We thank you for all your contributions, and
20 let's dedicate now the next 30 minutes for the -- yes, it was planned
21 already earlier, I know -- the reply for the Kordic Defence. And my
22 apologies to the Defence of Mr. Cerkez. However, it will facilitate maybe
23 your submissions if you only start after the lunch break.
24 So please, Mr. Sayers.
25 MR. SAYERS: Thank you, Your Honour. And to answer Judge Weinberg
1 de Roca's question, Exhibit Z1380.4 and Exhibit 1406.1 were so-called
2 Zagreb documents which made a very late appearance in the Kordic case.
3 They were not exhibits in any other case.
4 Listening to the Prosecution's submissions, I must say that I am
5 minded of the description of -- given by Sir Percy Blakney of the Scarlet
6 Pimpernel. We see him here. We see him there. We see him everywhere.
7 Is he in a heaven or is he in hell? That darned elusive Pimpernel.
8 And using another one of the images that the Prosecution used when
9 you get very close to the facts in this case, it's like I think the phrase
10 was a bunch of dots. And when you stand back, what do you see? What you
11 see is a smaller bunch of dots. Unfortunately, there is no cohesive
12 pattern, no way to fine your way through this convoluted and jumbled
13 judgement which I regret to say omits significant factual findings as a
14 predicate to the return of verdicts of guilty against our client here.
15 This is not a matter of penmanship or poor legal penmanship. This
16 is a matter of fair notice and a fair trial and, at its foundation,
17 justice. The evidence in this case is indeed a kilometre wide, but
18 consider when you look at the evidence and assess it, I think you will
19 agree with the Kordic Defence that it's a millimetre deep as to Kordic,
20 because the essence here is linkage. Where's the linkage between
21 Mr. Kordic and these crimes? Where's the mens rea?
22 We have some technical difficulties I regret to say. We have got
23 a slide presentation. I see it's on the screen right now. My screen is
24 not working here, so I'll read off my colleague's.
25 Let's consider proposition by proposition in a sequential order
1 starting with first counsel for the Prosecution and ending with last
2 counsel for the Prosecution, what we heard yesterday and today.
3 First, this was not a 7(3) case we're told. Well, the Appeals
4 Chamber may well ask, did the Prosecution seek the imposition of a life
5 sentence under Article 7(3)? And the answer to that question is yes. In
6 fact, they vigorously pursued that in closing argument. So when did it
7 cease to become a 7(3) case? Only when they lost it.
8 Second proposition: Notice in a pre-trial brief can cure a
9 defective indictment. It cannot for the reasons stated very recently in
10 the Rasevic decision just two weeks ago. If the Defence is denied the
11 material facts as to the nature of the accused's responsibility for the
12 events pleaded until the pre-trial brief is filed, it is almost entirely
13 incapacitated from conducting any meaningful investigation for trial until
14 then, and that's exactly the case.
15 And so let's take a look at the pre-trial brief that we got. What
16 does it say? Paragraph 5: "Those committing such crimes may leave little
17 documentary evidence. The Prosecutor may have limited access, if any, to
18 other direct oral evidence of the commission of such crimes." Paragraph
19 6: "Accordingly this case is based in large measure on the proper
20 inferences that can be drawn from the surrounding facts." Paragraph 12,
21 and this is absolutely telling: "Difficulty in identifying a defendant's
22 role may itself be indicative of guilt. In the absence of something to
23 hide, there should be no reason for controversy about the true role of
24 these defendants." And if you look at the evidence, there is no
25 controversy about the true role of Mr. Kordic.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 What is a material fact? We know, because we agree with the
2 Prosecution on that. The Prosecution tells us that a material fact as
3 defined in the Kupreskic appeals judgement is a fact upon which the
4 verdict is critically dependent. And is the verdict critically dependent
5 on the version of events related by Witness AT right at the end of the
6 case? Unquestionably it is.
7 In terms of evolving law and the rights of access to
8 closed-session testimony. That's not the point at all. The point is the
9 right to a fair trial as the Tadic Appeals Chamber said so long ago. The
10 right to a fair trial is central to the rule of law. It upholds due
11 process of law. A proposition, of course, not lost upon the Prosecution
12 which made an admission in this case that timely fulfilment of Rule 68
13 disclosure obligations is essential for a fair trial.
14 Did we get access to General Blaskic's open-session or
15 closed-session testimony? No. How do we know that? Take a look at the
16 screen? The Prosecution accepts that Kordic was never granted access to
17 Blaskic's trial testimony. We got it years and years later. Why? What
18 changed? What made it exculpatory in 2003 and just a few months ago when
19 it wasn't exculpatory throughout Mr. Kordic's trial?
20 Could we use the testimony with open-session testimony, those
21 parts of it that we did have without knowing what this witness had said in
22 closed-session testimony? Of course we could not. And furthermore, it's
23 absolutely integral in the jurisprudence relating to Rule 68 disclosure
24 obligations that open-session testimony as well as closed-session
25 testimony must be disclosed. Was it here? Absolutely not.
1 We could hardly call General Blaskic to testify cold without
2 knowing what this witness had said in closed session. We made attempts,
3 as the Appeals Chamber knows, to interview this witness ourselves while
4 the trial was under way. Those attempts were rejected by
5 General Blaskic's counsel.
6 The point is real made in the Krstic decision on subpoenas. You
7 can't call someone without knowing what they're going to say because to do
8 so would be contrary to the duty owed by counsel to their client to act
9 skilfully and with loyalty. A point made expressly to the Prosecution in
10 letters that we have attached to our supplemental reply brief filed in
11 March of this year. I'll just put them -- there's a letter dated April
12 the 10th. Would you take the chance of using open-session testimony if
13 you could be decapitated by closed-session testimony? The question asked
14 of the Prosecution. Of course not. And nor could we. And that's
15 precisely the point made by Krstic. And the point was made again in a
16 letter that's also attended to our supplemental reply brief, a letter
17 dated later in the month.
18 THE INTERPRETER: Kindly slow down for interpretation.
19 MR. SAYERS: -- deliberate. There's no controversy about this
20 proposition, Your Honours. The Prosecution admits it.
21 Excuse to justify this. Well, we didn't think that the general
22 was telling the truth, so we decided we weren't going to give it to
23 Mr. Kordic. Now, what kind of an excuse is that? It's no excuse
24 whatsoever. It's also been rejected as an excuse by the Blaskic Appeals
25 Chamber as recently as two months ago in the 4th of March, 2004 decision
1 because it's the credibility of evidence that falls to be considered in
2 such circumstances by the Chamber, not by the Prosecution. It's not free
3 to make subjective evaluations like this. It has a duty to disclose and
4 it has to fulfil that duty under its own professional standards and under
5 the jurisprudence of this -- this Tribunal.
6 In connection with the credibility theory, I might point out this
7 theory has been rejected by this Appeals Chamber in connection with
8 Witness AT and the stories he told and whether he has recruited on his own
9 initiative or not the individual who was recruited to produce perjured
10 testimony in support of his alibi.
11 Consider this hypothetical: In a murder Prosecution, Prosecution
12 seeks the death sentence, yet it knows of an ironclad alibi. It contends
13 nevertheless that the person who givers the accuse that had alibi isn't
14 really to be believed so we're not going to turn that information over to
15 the accused. Is that acceptable conduct in any jurisdiction, in any
16 national jurisdiction, in the lowliest court of any national jurisdiction
17 let alone in the most lofty court, this court. Absolutely not. That is
18 unacceptable conduct anywhere.
19 Was the general's testimony exculpatory? Well, you've just heard
20 an extended recitation of the asserted military powers that our client
21 supposedly exercised but let's take a look at the what the general said.
22 The Prosecution recognises that Blaskic refutes the proposition that
23 Kordic exercised any military control. Kordic personally was not in the
24 chain of command. He Did not function within the chain of command between
25 the military police and the battalion. He was with the civilian
2 "In Novi Travnik, I was conducting all of the military operations
3 there," said the general, yet he wasn't convicted and Kordic was. How?
4 "Kordic was not within the framework of my command. He was not a member
5 of my command. His statements were not binding upon me." In answer to an
6 express question by Judge Jorda, "were you subordinated to Kordic in any
7 way?" "No, Mr. President, I was not subordinated to him at all."
8 Now, that's exculpatory and no credible argument could be made
9 with a straight face that it is not; yet, what was told to the Trial
10 Chamber? We've fulfilled all of our obligations and because we have, you
11 should deny Kordic's motions for access to amongst other things the
12 general's closed-session testimony. My word would be good enough I trust
13 on this topic and if it isn't, I shall like to know why. Well, now we
14 know why. That was on the 20th of January, 2000, two months before the
15 close of the Prosecution's case. Eight months later, the same formula is
16 recited and on both occasions this was relied upon by the Trial Chamber.
17 If counsel gives me its word in court, that's good enough. Motion is
18 denied. "Already dealt with and refused," says the court on the 3rd of
19 August, 2000. "We've been told that the disclosure rules are being
20 complied with and so that your motion your new motion is also refused."
21 You've had full disclosure according to the rules we were told by the
22 Presiding Judge. The real sense the Prosecution carries out its full duty
23 under Rule 68. That's your safeguard.
24 Well, it wasn't. And what's the Prosecution panacea for this
25 violation? Well, it's very easy. All you have to do is ask for the
1 admission of new evidence on appeal.
2 JUDGE SCHOMBURG: Question by Judge Guney.
3 JUDGE GUNEY: [Interpretation] Thank you, Mr. Sayers. You have
4 just said that your client, Mr. Kordic, didn't exert any military
5 authority. Certainly the responsibility pursuant to Article 7 of the
6 Statute can be attached to civilians as it can be to military men. It can
7 refer to both if it is established that they had to power to prevent
8 crimes or to punish others.
9 Now, your client was a -- an eminent political figure. He was
10 part -- or, rather, he was at the head of the leadership of local
11 politics, and with the hypothesis that he had no authority to prevent
12 crimes, did he not perhaps have a certain amount of authority which he
13 could have wielded with the result that he could have taken the matter up
14 and punished the perpetrators? So could you please indicate to us with
15 the clearest cut lines whether he reacted in that direction, whether he
16 acted in that manner at all during the material time. Thank you.
17 MR. SAYERS: Thank you, Judge Guney, and that of course is the
18 issue. That is the issue. Did he have the power of control? Did he have
19 the power to punish? Did he have the power to prevent? Absolutely right.
20 And I can answer your question, I hope, with some immediacy and some
21 precision insofar as the inquiries that you make. If you turn to footnote
22 870, I think it's 870 -- I'm sorry, it's 973 of the judgement, this is a
23 partial answer to one of your questions.
24 Witness CW1 and the Appeals Chamber will be mindful of the lofty
25 military position of this particular witness - by the way a Court witness,
1 not called by either of the parties - said in evidence that Kordic had no
2 power to initiate disciplinary action, and there was no evidence to
3 contradict this.
4 Secondly, if Your Honour turns to paragraphs 840 and 841 of the
5 judgement, the Chamber finds in paragraph 840 that Kordic lacked effective
6 control. And then in paragraph -- and the evidence we would submit is
7 uncontroverted on that. And the second paragraph, 841, "Kordic was
8 neither a commander nor a superior in respect of the HVO since he
9 possessed neither the authority to prevent the crimes that were committed
10 nor to punish the perpetrators of those crimes, and as such he is not
11 liable under Article 7(3)."
12 So there are the findings, actually clear findings, which is a
13 rather unusual feature of this judgement. But more importantly, findings
14 that are unappealed, unchallenged, by the Prosecution.
15 JUDGE GUNEY: [Interpretation] And I have another question for
16 you, Mr. Sayers. I should like to have your opinion or, rather, the
17 Defence's point of view. He didn't have the power and authority to make
18 decisions with respect to disciplinary action, and he did not have the
19 effective power to control, lacked effective control, and if he didn't
20 have the power to prevent either, were there nevertheless certain cases in
21 which and above all with the sightings with -- to his high position, did
22 he not have the power to prevent or, rather, if he did have the power
23 to -- did not have the power to prevent, he could have wielded his
24 authority vested in him to have a certain amount of authority to follow up
25 and punish the perpetrators of crimes as well as the perpetrators of
1 atrocities committed.
2 So would you agree with me there, that although one does not have
3 the power to prevent, one can wield one's authority and follow cases up
4 and punish the perpetrators, at least to take steps and initiate certain
5 mechanisms, to put into motion certain mechanisms to do so and to
6 investigate and punish? What is the point of view of the Defence on -- in
7 that matter. Thank you.
8 MR. SAYERS: That question, of course, Judge Guney, is, to use a
9 colloquialism from where I come from, that's where the rubber meets the
10 road. Does this man have the power to initiate disciplinary proceedings?
11 Does this man have the power to punish de facto as opposed to de jure, and
12 the answer to both of the those questions is: Absolutely he did not. The
13 testimony from the HVO military witnesses top to bottom is uniform and
14 consistent from the chiefs of the Main Staff of the HVO, several of whom
15 testified before the Trial Chamber and whose evidence is before this
16 Chamber. General Blaskic's second in command Major General Filip
17 Filipovic testified Kordic walls not in the chain of command. He had no
18 power over any of our subordinate brigades. He had no power to issue
19 orders to Blaskic to initiate discipline action. He had no influence over
20 the military police. That testimony is confirmed by General Blaskic's
21 Chief of Staff, Brigadier Nakic, by other staff officers such as major
22 Prskalo, Brigadier Gelic; by brigade commanders such as Zivko Totic, Neven
23 Maric, Vinko Tokic, Dusko Grubesic. It's also confirmed ironically by two
24 commanders of the military police, the 4th battalion of military police. I
25 went over that testimony yesterday with colonel Palavra. It's the same
1 for Ljubicic's predecessor Colonel Zvonko Vukovic. Kordic was not in the
2 chain of command.
3 So the evidence is quite clear and it's not contested by the
4 Prosecution although there's a certain distance between that, the failure
5 to appeal the acquittal on Article 7(3) and the argument that the sentence
6 should -- should go northwards. But point is there's no evidence that
7 this man was in the chain of command, that he had the power to punish,
8 that he had the power to prevent and those are the express findings in the
9 paragraphs and footnote I've just recited of the Trial Chamber and those
10 findings are precise and they're unchallenged.
11 I had various other points to make, but my time is short here. I
12 want to finish on this note before I hand over very briefly to Mr. Smith
13 who will have a word to say on persecution.
14 Mens rea. That's where it comes down to. That's exactly what the
15 question is about. We understand that, and the Appeals Chamber
16 understands that. And here it is. Here's what the state of the art is.
17 Krstic just a month ago. There must have known formula in the blast zone
18 of responsibility, so to speak, he was close enough, associated with,
19 implicated in. Essentially a guilt by association argument. Is that
20 enough in this Tribunal? It is not.
21 The Trial Chamber's assertion was without approve evidentiary
22 basis said the Krstic Appeals Chamber and this Appeals Chamber should say
23 the same thing without having established that Krstic knew of the
24 intention on the part of General Mladic, no reasonable Trial Chamber could
25 have made the further inference that Krstic shared that intention. And
1 finally in the Vasiljevic appeals judgement earlier in the year, without
2 proof of the appellant's intent, the appellant would not be responsible as
3 a co-perpetrator in the joint criminal enterprise. And where is it? He's
4 everywhere and nowhere, just like the Scarlet Pimpernel. This case is no
5 more than a bunch of dots. It's exactly juridical impressionism, exactly
6 what Judge Bennouna called it several years ago. Thank you.
7 MR. SMITH: Your Honours, I'm going to discuss very briefly
8 essentially five points relating to persecution and counts 3 through 43.
9 The first relates to the alleged deconstruction by Kordic of the evidence
10 in this case. This argument reminds me of the Heisenberg principle. This
11 argument and the shift into an argument that it really is all a joint
12 criminal enterprise and individual proof of ordering, planning,
13 instigating, or committing is not necessary for the count 3 to 43 events.
14 You know the electron is in that cloud someplace. You know that the
15 linkage, it is asserted, is in that cloud someplace in the atom, but you
16 can never put your finger on its location and its time at any point.
17 The second point I want to make is as to Kordic's responsibility
18 and the basis for that responsibility under Article 7(1), that is to say
19 paragraph 834 of the opinion relating to counts 3 through 43.
20 The Prosecution is at this late stage in the case attempting to
21 rewrite what the Trial Chamber said -- Trial Chamber said. The Trial
22 Chamber clearly found liability under Article 7(1) for planning,
23 instigating, or ordering, and while it used -- referred to the evidence
24 relating to persecution, it clearly did not make a finding under joint
25 criminal enterprise. And the Prosecution has suggested that we simply
1 sweep aside the legal terminology. But you can't sweep aside the legal
2 terminology. The legal terminology is the way lawyers discuss with
3 precision what is the meaning of the legal conclusions they're reaching to
4 convict a person of an offence and put him in gaol.
5 The Prosecution now argues that joint criminal enterprise can be
6 combined with joint commission, co-perpetratorship under Article 7(1) for
7 the offence of planning, instigating, or ordering, but these are two
8 entirely separate concepts.
9 The Prosecution also suggests that having attempted to take counts
10 3 through 43 and wrap them in the common plan, that almost everything that
11 is in the case is in the common plan because that's what's alleged under
12 counts 3 through 43, but just in case there's anything that they've
13 forgotten, there's actually a category 3 intent rather than category 1
14 intent because of a joint criminal enterprise and everything else is
15 reasonably foreseeable. Your Honours, this is a form of confusion. This
16 takes us back to the amended indictment which was not precise, to
17 judgement which was not precise, and now neither Kordic nor the Appeals
18 Chamber can tell what the Prosecution really thinks about the critical
19 linkage issues, and that this new importation of joint criminal enterprise
20 into the findings for counts 3 through 43 is yet another example of the
21 Prosecution's case simply moving and shifting wherever it thinks it needs
22 to go to get to the predetermined conclusion that it wishes the Appeals
23 Chamber to head toward.
24 The third point I will make is the Prosecution asserts that the
25 citing of a sentence out of Mr. Kordic's briefs that Kordic takes the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 position that you can have a little persecution. That is a misreading of
2 our brief, Your Honour. We quoted, put in quotes the words "persecution"
3 and "discrimination" in that sentence because we did not intend them to be
4 taken literally as the Prosecution has done. The point we made and have
5 made continually is that where there is conflict, military or political,
6 between two groups, political groups, religious groups, racial groups, by
7 definition to some extent one group is always opposing the other group,
8 members of the other group, because they are members of that other group.
9 That is the only point we made.
10 My fourth point, Your Honour, is that the Prosecution has argued
11 that collateral damage does not distinguish between people and houses, but
12 the Appeals Chamber must take what the Trial Chamber did not take, and
13 that is a realistic view of what happens in military combat. Muslim
14 houses were frequently destroyed because that's where people were shooting
15 from in a combat situation. Where there is evidence that they were
16 destroyed later, you must look carefully to see whether there was such
17 evidence and whether it was clear that the destruction was not related to
18 the combat. And I will take just several examples of where you must look
19 carefully at the evidence.
20 Donja Veceriska. They fought for 48 hours until the Muslim, the
21 ABiH ran out of ammunition. You must look very carefully, because we do
22 not believe that it is clear from either the judgement or the opinion that
23 there were civilians killed there. And on the detention offences. Those
24 detentions took place during periods of active combat, active fighting,
25 and it is not just a matter of protecting the civilians, but it is also a
1 question of military security.
2 My final point, Your Honour, and that is as to the secessionist
3 agenda. I refer Your Honours to pages A41 through 48 in the annex to our
4 trial brief where we have discussed at length the question of secession,
5 the question of the Tudjman papers in particular and who said what, and
6 you will see there that Mr. Kordic was talking about the existence of the
7 Croat community within the RBiH. That's the essence.
8 With that, Your Honour, I will close, simply saying that where, as
9 in this case, you are dealing with political and military events involving
10 persons of different religious or political communities, you must apply
11 the concepts of the law carefully and particularly the concepts of
12 persecution carefully.
13 Thank you, Your Honour.
14 JUDGE SCHOMBURG: May I finally ask, you didn't answer to the
15 point made by Ms. Jarvis that the Prosecution submitted that the HVO
16 operations were surgically directed to Muslim civilians and Muslim houses.
17 Would you agree with this? And you made just two minutes ago the point,
18 what about the targets of the attacks? Would you agree with the
19 submission of -- by the Prosecution that the target of the attacks were
20 civilian and civilian objectives?
21 MR. SMITH: No, Your Honour. It is our assertion that in the bulk
22 of the situations involved, the attacks were against legitimate military
23 objectives, and we have tried to spell out why each village made sense as
24 a military matter, as a point of attack. And there were many villages
25 that were not attacked.
1 And secondly, we assert that as it is necessary that the fighting
2 was not directed at civilians or civilian objects, it was a military
3 engagement. The question then becomes, because of course during a
4 military engagement there are likely to be collateral impacts, were those
5 collateral impacts excessive?
6 Where there is evidence that civilians were killed, that's the
7 question. Were there more civilians killed than is warranted by the
8 nature of the fighting in this built-up area in each village. Where
9 houses are involved, you must ask yourself whether there is clear evidence
10 that these houses were destroyed by fire or some other manner not related
11 to the combat, and clearly attributable to HVO soldiers and the evidence
12 in Novi Travnik does not clearly attribute the destruction of property to
13 HVO soldiers. The evidence simply is property was destroyed, some of it
14 outside the area of the fighting.
15 You must look at the findings with care, because sometimes there
16 may have been deliberate destruction of houses, but you must look very
17 carefully and ask yourself these questions, and in most cases it was
18 legitimate military objectives, and we assert that it was acceptable
19 collateral damage and these attacks were directed as military matters, not
20 as against civilians and their houses per se, with the clear exception of
21 Ahmici. That's important.
22 JUDGE SCHOMBURG: Thank you. This concludes this morning's
23 session. We will have now the break until a quarter to two sharp. The
24 trial stays adjourned.
25 --- Luncheon recess taken at 12.36 p.m.
1 --- On resuming at 1.51 p.m.
2 JUDGE SCHOMBURG: I was informed that the Prosecution wanted to
3 answer a question put to the Prosecution this morning by
4 Judge Weinberg de Roca. Please.
5 MR. FARRELL: Thank you, Judge Schomburg. If I may, Your Honour,,
6 Judge Weinberg de Roca. Exhibits Z1380.4 has been indicated by Mr. Sayers
7 as prior to this trial it was not admitted in any case. After this trial,
8 it was admitted in the Blaskic appeal as Exhibit 5 in the first Rule 115
9 motion. Second exhibit you asked about was Z1406.1. Likewise, Mr. Sayers
10 has informed you of prior to the Kordic and Cerkez trial, it was admitted
11 in the Blaskic appeal as Exhibit 14 on the first Rule 115 motion. And the
12 third exhibit you had asked about, which was Z610.1, was admitted in the
13 Blaskic appeal as Exhibit 14 to the second Rule 115 motion. You had asked
14 during the Prosecution's submissions, if I recall, whether or not Colonel
15 Blaskic at the time had -- whether he had verified the war diary. With
16 permission of -- I can inform you that during the testimony of Colonel
17 Blaskic during his trial, he testified that he did not have the war diary
18 in his possession, and testified to what he said were the events that
19 occurred during the time period.
20 On the appeal in the Blaskic appeal, that document, the -- what
21 we've called the war diary, was presented by the Defence for
22 Colonel Blaskic. So to that extent that they've put it forward as an
23 authentic document. That's as far as I probably can assist you in that
24 regard. That's the matters that you've asked for.
25 There is one other matter, with the leave of the Court, that I can
1 address, Your Honour.
2 JUDGE SCHOMBURG: If it's related to Mr. Kordic.
3 MR. FARRELL: Well, yes, it is.
4 During one of my -- one of counsel for the Prosecution's
5 submissions, we were trying to give an answer to questions regarding the
6 signature at the back of the war diary. There were two signature blocks.
7 It was our understanding when we made submissions that there was no
8 objection at trial by counsel for Mr. Kordic. I think, to be fair, and
9 I've spoken with counsel for Mr. Kordic, they objected in total to the
10 authenticity of this document as a general matter, so I think it would
11 probably incorporate whether or not they would accept the signature as
12 well. The only other thing is that we were unable to find whether or not
13 there was a specific objection to the two signatures at trial, and that we
14 can't speak about, because we couldn't find any objection to that. Mr. --
15 Sorry, my learned colleagues have indicated that their recollection is
16 they did, and I've invited them to bring that to your attention if they're
17 able to find the passage at trial. We were unable to. Thank you. That's
19 JUDGE SCHOMBURG: Thank you for this clarification. This
20 concludes now the hearing on the appeal lodged by Mr. Kordic, and as we
21 have to deal with individual criminal responsibility, we have to turn now
22 explicitly and solely to the appeal lodged by Mr. Cerkez. And no doubt we
23 are fully aware that some additional time has to be allocated to you, and
24 my suggestion would be that if you need all the time, we can continue
25 right now until a quarter past 3.00, and then half past 3.00 till 5.00.
1 And let's see whether you can finalise your submissions in this time
2 allocated to you. The floor is yours, Mr. Kovacic. Please.
3 MR. KOVACEVIC: [Interpretation] Thank you, Your Honour. I also
4 hope that we will be able to present what we have planned within that time
5 allocated to us.
6 As a matter of fact, we tried to organise our arguments within
7 three hours, which is the amount of time that was originally allocated to
8 us in Scheduling Order. It doesn't matter whether those three hours would
9 begin today at 11.00 in the morning or just now, at 2.00 p.m.
10 By way of introduction, I would like to mention several elements
11 of historic nature in this case, because I think that this has accompanied
12 the case from the very beginning and gave a negative connotations. As you
13 know, the amended indictment was -- original indictment was issued on the
14 2nd of November, 1995, against six persons initially: Kordic, Blaskic,
15 Cerkez, Aleksovski, Skopljak, and Santic. The Prosecution first dropped
16 charges against Santic and Skopljak, whereas later on the case against
17 Blaskic was severed from the case against Aleksovski.
18 Together with the indictment in the Kupreskic case, four new
19 cases, all having to do with the Lasva Valley, were established before
20 this Tribunal. Cerkez learned of this indictment later on. He prepared
21 for his defence to a certain extent. He came to the conclusion there was
22 no need to hide, and voluntarily surrendered to this Tribunal. That was
23 on the 5th of October, 1997, and since that time, he has been in detention
25 During his first Initial Appearance in October of 1997, Cerkez
1 pleaded not guilty with respect to the crimes he was charged with. The
2 amended indictment charged Cerkez with 22 counts. The trial judgement
3 found him guilty of 15 counts and acquitted him on 7 counts.
4 Perhaps it would be easier if I presented a chart to you now,
5 which gives the information pertaining to locations and the temporal scope
6 of the indictment. I will revert back to these issues later on.
7 The indictment shows, and you can see it from this chart, that the
8 relevant time of the indictment goes from the 1st of April 1992 to the
9 30th of September, 1993. However, the most significant counts in the
10 indictment are all limited to April of 1993.
11 The second feature of this indictment is the geographical scope.
12 This indictment charges Cerkez with acts committed in municipalities, so
13 not in towns but in municipalities, which is a much broader term, the
14 following municipalities, Novi Travnik, Busovaca, and Vitez.
15 The judgement, in the end, reading the findings and not only the
16 ruling of the judgement, one sees that Cerkez was convicted only for the
17 events in the territory of Vitez municipality and, to be more precise, in
18 an even more limited area, precisely three locations within that
19 municipality. Therefore, from a very broad geographical scope that we had
20 in the beginning, Cerkez was found guilty for acts committed exclusively
21 within his municipality, or rather, in the town where he lived and in the
22 vicinity of that town.
23 The next feature of the indictment is a crime which took place in
24 the Ahmici village on the 16th of April, 1994. I wish to say the
25 following regarding the scope of this: Cerkez has been acquitted of all
1 charges concerning the incident in Ahmici. Therefore, acquitted of all
2 charges concerning the acts which took place in Ahmici.
3 The second matter that needs to be mentioned is that, regardless
4 of the fact that other villages were mentioned within that area near
5 Ahmici, namely, Nadioci, Santici, and so on, I would like to say that
6 during the very lengthy trial that we had, we established a practice
7 whereby all of these four sublocations - Nadioci, Pirici, Santici, and
8 Ahmici - are referred to under the general term "Ahmici." As a matter of
9 fact, it is one location, and it is very difficult to discern one from
10 another. We think that when formulating the indictment, the Prosecution
11 needlessly divided the territory into these four hamlets, these four
13 I still wish to remind you that Cerkez was convicted for
14 Prosecution under Article 7(1), as a co-perpetrator, and was convicted for
15 other acts he was found guilty of, which is counts 3 to 44, and his
16 criminal accountability was established both under Article 7(1) and under
17 Article 7(3). We will revert to that later on, because we believe that
18 cumulative charging under Article 7(1) and 7(3) is permissible; however,
19 cumulative convictions under both of these articles is not in accordance
20 with the jurisprudence of this Tribunal.
21 The jurisprudence after the trial judgement was passed down.
22 I would like to state for the record that, in addition to this,
23 Cerkez was found guilty under count 35 and count 44. However, during
24 appeal proceedings, the Prosecution stated that it believed that these two
25 counts were errors, or erroneously entered into the judgement, and
1 therefore, the Prosecution was of the opinion that these two counts need
2 not be discussed now.
3 I would like to state now that as far as count 44 is concerned,
4 which pertains to destruction of religious -- of buildings dedicated to
5 religion, in the Prosecutor's brief and response under paragraph 1067 --
6 10.67, to be more precise, stated that they believed that the Trial
7 Chamber made an error and that Cerkez should be acquitted under Article
8 7(1) of the Statute for count 44 because there was no evidence to
9 substantiate that he was involved in the destruction of the mosque. And
10 then they go on to give details, but we need not go into that. The
11 Prosecution might say something about this matter.
12 As for the other counts, count 35, the Prosecution dropped this
13 charge several days ago in their submission -- in their filing on the 14th
14 of May. Therefore, there is no need for me to spend time on that issue.
15 However, if you should find it necessary, I'm prepared to discuss this as
17 Next, I wish to remind that the pre-trial proceedings lasted 18
18 months. During that time, the Trial Chamber reviewed about 60 various
19 motions of the parties, meaning that all parties were very active during
20 that phase of proceedings. The Defence, among other things, also asked,
21 on the 22nd of January, 1999, that the indictment be formulated in more
22 specific terms. That motion of the Defence was denied, as was the
23 practice in all other cases at the time.
24 The Prosecution said to us today, or perhaps yesterday, in the
25 afternoon, that the indictment was made more specific by adding two
1 additional documents. One was mentioned as being their pre-trial brief,
2 and the second one was this so-called annex 1, which accompanied either
3 that brief or the indictment; I cannot remember exactly. However, it is
4 our position that the indictment remained fairly vague. We will discuss
5 this a bit more later. The indictment was definitely too broad, and these
6 added documents, which were supposed to make the indictment more specific,
7 did not actually provide additional clarifications or accurate facts.
8 As a result of that, the Defence spent a lot of time defending our
9 client from charges that we were not even sure that he needed to be
10 defended for, and the Defence was never quite clear on the scope of the
11 indictment. I'm sure that the Appeals Chamber will take this into account
12 when formulating their decision.
13 As you know, the trial itself lasted for 244 trial days, 244
14 witnesses were heard during trial by all three parties. There were two
15 witnesses who were summoned here by the Chamber. In addition, 30
16 transcripts relating to 30 witnesses from other trials were admitted as
17 well. Those were mostly witnesses from Blaskic and Kupreskic. And in
18 addition to that, 49 affidavits were admitted, in accordance with the
19 Rules which were in force then, and the Rules have been changed in the
20 meantime. 4.665 exhibits were admitted and, in the end, the transcript
21 amounted to almost 29.000 pages.
22 Following the judgement, additional disclosure, under Article 68,
23 continued -- under Rule 68 continued, based on our records, the Prosecutor
24 has lately disclosed to us more than 70.000 pages of new material. What
25 should be borne in mind is that the new material was disclosed to us under
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Rule 68 and that most of that material came from the military archives of
2 Bosnia and Herzegovina. The Defence asked to be given access to those
3 archives during trial, and the Chamber granted these two requests on the
4 27th of January and on the 6th of July, 2000, and ordered the government
5 of Bosnia and Herzegovina and the government of the Federation of Bosnia
6 and Herzegovina to disclose the requested documents to the Defence.
7 However, this did not materialise, despite the promises given by
8 representatives of Bosnia and Herzegovina and the Federation of Bosnia and
9 Herzegovina. The Defence was given only 27 documents, and I have to tell
10 you that those were absolutely worthless documents. I don't think that
11 any of the Defence counsel used it in their defence case. These documents
12 did not pertain either to the temporal scope or to the events that were
13 discussed here during the trial.
14 Later on, we were told that the Prosecution informed us that we
15 would be granted an agreed -- we would be granted a chance to review these
16 documents in an agreed manner; however, I have to say that this did not
17 happen, despite the fact that the Prosecution had full cooperation of
18 various organs in Bosnia and Herzegovina pertaining to their cases in
19 Lasva Valley. They never, in fact, tried to establish the location of the
20 archives of the Army of Bosnia and Herzegovina. The Prosecution was
21 granted access to these archives in October of 2000; however, we were
22 never informed about that despite the fact that the trial was still
23 ongoing at the time. But we will come back to this issue later during our
25 Of course, this is not the time and the place to discuss this any
1 further. The Defence asked that this be rejected under Rule 115. The
2 Trial Chamber rejected our motion, for reasons that are justified by the
3 jurisprudence of this Tribunal that has evolved since.
4 The appeals ground put forward by Mr. Cerkez. I would like to
5 remind you first that the Cerkez Defence clearly defined all grounds for
6 appeal in its filing of the 9th of March 2002. While our appeal is
7 contained in the brief filed on the 9th of August 2001. This filing of
8 the 9th of March 2002 is something that resulted from the request of the
9 Pre-Appeals Judge, Mr. Hunt, who asked us to systemtise our filings in any
10 way, which we did. My colleague Mr. Mikulicic and I will deal with five
11 grounds for appeal. This is the total of all grounds we are putting
13 The first will be that the Trial Chamber erred in applying the
14 Geneva Conventions of 1949, which refers to Article 2 of the Statute,
15 specifically, to the issue of existence of the international armed
16 conflict, and this will be dealt by my colleague Mr. Mikulicic.
17 Then we will deal with individual criminal responsibility under
18 Article 7(1) and 7(3). The third ground of appeal is that the appellant
19 did not have a fair trial because we believe that violations occurred of
20 fundamental rights of the accused under Articles 20 and 21 of the Statute
21 and Rule 89 of the Rules of Procedure.
22 Another ground of appeal is that a number of factual findings in
23 the Trial Chamber judgement were made below the beyond reasonable doubt
25 And our fifth ground of appeal is the issue of sentencing.
1 Let me note that I will not take these grounds in sequence; in
2 fact, my colleague Mr. Mikulicic will take up the first ground of appeal,
3 the existence of an international armed conflict, first; and
4 responsibility under Article 7(1) and 7(3) will be dealt in an abbreviated
5 way, under the ground that has to do with sentencing; then my colleague
6 Mr. Mikulicic will put forward our arguments concerning fair trial
7 violation, Article 3, which is our third ground of appeal. And then I
8 will take up our ground of appeal concerning the reasonable doubt
9 criterion and sentencing.
10 If the Appeals Chamber agrees with this, then I will give the
11 floor to my colleague Mr. Mikulicic to take up the first ground of appeal.
12 JUDGE SCHOMBURG: Thank you, Mr. Kovacic. Mr. Mikulicic.
13 MR. MIKULICIC: [Interpretation] Your Honour, this is how in
14 ancient Rome -- this is how in ancient Rome eminent judges addressed
15 parties in proceedings. Give us facts and we will give you justice,
16 because the court knows the law. This Latin sentence was one of the first
17 that I learnt as a law student in my first year in learning the subject
18 Roman law. My professor taught me that it is not the duty of parties to
19 legal proceedings to teach the court how to apply the law, that it would
20 be indecent and inappropriate, in fact, because it is the duty of the
21 parties, instead, to familiarise the court with the factual situation.
22 Now, addressing the Appeals Chamber, I have the embarrassing
23 responsibility to approach the Court with our interpretation of the law,
24 which we hope the Appeals Chamber will apply in the procedure to follow. I
25 therefore ask for your understanding in advance if I fall into the trap of
1 sounding excessively like a teacher.
2 Following the report of Secretary-General of 3rd May 1993, the
3 competencies of this Tribunal were defined, ratione materiae, so that the
4 Tribunal is obliged to apply in its work the rules of international
5 humanitarian law which, without a doubt, are an integral part of customary
6 law. Allow me to quote part of the report of the Secretary-General, and
7 in order to avoid possible interpretation mistakes, I will do that in
8 English. So in Article 1(A) 34 of this report, it reads: [In English]
9 "In the view of the Secretary-General, the application of the principle
10 nullum crimen sine lege requires that the International Tribunal should
11 apply rules of international humanitarian law which are, beyond any doubt,
12 part of customary law."
13 [Interpretation] In the next paragraph, and I will continue with
14 the quotation, the report explains what kind of international customary
15 law is meant, and I quote: [In English] "The part of the conventional
16 international humanitarian law which has, beyond doubt, become part of the
17 international customary law, is the law applicable in armed conflict, as
18 embodied in the Geneva Conventions of 12 August 1949, for the protection
19 of war victims, The Hague conventions number 4, respecting the laws and
20 customs of war on land, and the regulations annexes thereto, of 18 October
21 1907. The convention of the prevention and punishment of the crime of
22 genocide, of 9 December 1948, and the charter of the international
23 military tribunal of 8 August 1945."
24 [Interpretation] So according to our understanding, these are the
25 sources of international customary law and the purview of ratione materiae
1 of this eminent Tribunal.
2 Contrary to the principle of legality, nullum crimen sine lege,
3 the Tribunal applies the law which, at the time of the commission of the
4 crime which is the subject of these proceedings was, doubtlessly, covered
5 by international customary law. In the opinion of numerous legal
6 theoreticians, ad hoc courts like this Tribunal do not have the mandate to
7 create precedents in international law because they are limited in their
8 activity by the purpose of their establishment and the wishes of their
10 In this specific case, what is at issue is the interpretation of
11 Article 2 of the Statute of the Tribunal, and in this connection, the
12 sentence meted out by the Trial Chamber to our client, namely, in counts
13 15, 19, 30, 31, 33, and 35 of the judgement, in paragraphs.
14 THE INTERPRETER: Correction. 15, 19, 30, 31, 33, 35.
15 MR. MIKULICIC: [Interpretation] It follows from the jurisprudence
16 of this Tribunal, and especially judgement in Naletilic case, application
17 of Article 2 of the Statute requires four prerequisites. First, the
18 existence of an armed conflict; second, the existence of a nexus between
19 the conflict and the crimes allegedly perpetrated; third, the armed
20 conflict must be an international armed conflict; and fourth, the persons
21 or property which are the subject of serious violations must be defined as
22 protected persons.
23 These conditions that we are familiar with are cumulative and not
24 alternative. I believe the application of Article 2 of the Statute is not
25 at issue in the context of international armed conflict. However, what
1 the Defence finds controversial is the choice of criteria for defining the
2 character of the armed conflict that occurred in Lasva Valley, tempore
3 criminis, in the course of 1993. In fact, adequate application of the
4 international customary law that was in force at the time.
5 My learned friend Mr. Sayers said something about this, and I will
6 follow up on his contribution, and I beg you to excuse any duplication.
7 The Defence of Mr. Cerkez, contrary to the position of the Trial
8 Chamber, which found that the armed conflict in question was an
9 international one, believes that the armed conflict was in fact internal,
10 and for that reason, the Trial Chamber should not have applied Article 2
11 of the Statute of the Tribunal and convicted our client under that
13 The issue of the character of the armed conflict is a legal issue,
14 but it is also a factual one.
15 The latter issue, especially if we speak about the territory of an
16 internationally recognised state, Bosnia and Herzegovina, where it is not
17 questionable that there were many local clashes among various
18 participants, and by this I mean among various ethnicities and
19 combinations of ethnicities, which again varied from region to region,
20 almost from village to village. Contemporary historians described Bosnia
21 and Herzegovina at the time as a country with a hundred wars.
22 Each of these wars was special and particular. It is the position
23 of the Cerkez Defence that when making the decision on the character of
24 the conflict, specific circumstances that applied at the relevant time, in
25 the relevant territory, have to be taken into account.
1 Allow me to remind Your Honours of the various facts relevant to
2 that conflict. It started as a conflict between the former Yugoslav
3 People's Army and paramilitary formations, on the one hand, and, on the
4 other hand, Bosnian Croats and Bosnian Muslims. Between these three
5 ethnicities - Serbs, Croats, and Muslims - in various areas of Bosnia and
6 Herzegovina, clashes occurred in various combinations. In some places,
7 Serbs and Croats found themselves allied against Muslims. Elsewhere,
8 Muslims and Serbs united against Croats. And in yet other places, to make
9 the absurd more complete, Bosnian Muslims fought between themselves in the
10 territory of the same internationally recognised state.
11 I shall recall before this honourable Appeals Chamber Exhibit
12 D34/2, which is a report compiled for the requirements of the Security
13 Council five days after the incident, the war crime in Ahmici, and filed
14 by the representative of Bosnia and Herzegovina to the United Nations,
15 Mr. Sacirbey. In this letter, he characterised the conflict in the Lasva
16 Valley as a conflict where - I paraphrase - local moguls clashed over the
17 distribution of food and arms.
18 Therefore, as I already said, it is not possible to view the
19 territory of Bosnia and Herzegovina as a uniform administrative unit with
20 the elements of statehood known by international law at the critical time.
21 What applied to the territory of the Lasva Valley, for instance, was not
22 true of events and circumstances, for instance, in Srebrenica or Sarajevo
23 or Herzegovina. Therefore, we kindly ask of this Honourable Appeals
24 Chamber to take into account all the peculiarities of the factual
25 situation inherent in the territory covered by the indictment, and I am
1 afraid that they will find little help in the precedents established by
2 cases where the facts were completely different.
3 However, it is the position of the Defence that the Trial Chamber
4 erred in defining the character of this armed conflict, which started in
5 mid-April 1993, in the area of Vitez and its environs between members of
6 the Army of Bosnia and Herzegovina and members of the HVO. The Defence
7 agrees with the finding of the Trial Chamber - I refer you to paragraph 31
8 of the judgement - that the armed conflict in that area did not exist at
9 all as protracted violence before the 3rd of -- before March -- before
10 April 1993.
11 It is not in issue that there was no presence of regular army
12 units of the Republic of Croatia. That is the position accepted by the
13 Trial Chamber. However, in paragraph 108 of the judgement, the Trial
14 Chamber found that in adjacent areas, such as Gornji Vakuf and Prozor,
15 parts of units of Croatian army were observed, that is, the army of the
16 Republic of Croatia. In the opinion of the Trial Chamber, this
17 circumstance is of crucial importance for judging the character of this
18 armed conflict.
19 This, explained by the fact that the very presence of the Croatian
20 army in the neighbouring area was of strategic importance. Such findings
21 in the judgement, and legal conclusions, are not in harmony with the
22 actual situation, because, first of all, the units of Croatian army were
23 located in an area which has no physical link to the Vitez area, which is
24 where our client, Mr. Cerkez, was active. Moreover, the area of the Lasva
25 Valley and the area of Gornji Vakuf and Prozor are separated by an
1 impassable mountain chain, and this chain presents an insurmountable
2 physical obstacle to any kind of communication. One can be assured of
3 this just by looking at a map and by analysing the evidence presented in
4 the trial.
5 Second, the units of Croatian army, which in mid-1993 found
6 themselves in Gornji Vakuf and Prozor, were there to assist the Army of
7 Bosnia and Herzegovina in their defence against the attack by the units of
8 the former JNA and Serbian paramilitary formations. This assistance and
9 support of the Croatian army was based on the agreement reached between
10 Tudjman and Izetbegovic on the 21st of July, 1992, and therefore, I would
11 like to bring to your attention Exhibit D98/1.
12 The error made by Trial Chamber was evident also in erroneous
13 definition of two elements which determine the character of an armed
14 conflict. The first one is the so-called overall control test. I'm here
15 referring to paragraph 111 of the judgement. And the second one pertains
16 to the definition of protected persons under Article 4 of the fourth
17 Geneva Convention, and here I am referring to paragraphs 147 to 160 of the
19 Allow me to say a few words concerning the first issue. The
20 so-called overall control test is a test used to determine the character
21 of an armed conflict and was applied by this Tribunal for the first time
22 in the appeals judgement in Tadic case on the 15th of July, 1999. Up
23 until that time, as an undisputed element of international customary law,
24 a different test was used, a so-called effective control test, from the
25 well-known case, Nicaragua, dating back to 1986.
1 Therefore, it is obvious that the test from the Tadic appeals
2 judgement represents an application of law ex post facto, delicti
3 commissi, therefore, after the crime committed, and application of the law
4 in this manner is prejudicial to the defendant because the overall control
5 test is a much broader test than the previous one that was used, based on
6 which the Defence concludes that this represents a violation of the
7 principle of legality. I think that it is well accepted that the
8 principle of legality is an essential part of the international customary
9 law. This principle has also been included in the so-called Rome Statute
10 of the International Criminal Court, and therefore, represents one of
11 basic guarantees for a fair trial.
12 Therefore, the position of the Defence is that, notwithstanding
13 the jurisprudence of this Tribunal, the application of a new definition
14 pertaining to certain legal situations is completely unfounded, especially
15 when in the previous period, those situations were defined in a completely
16 different manner, and by this I'm referring to the time when the crimes
17 were committed.
18 Resorting to this kind of test, the Trial Chamber actually
19 violated the rights of the accused. This was prejudicial to the accused.
20 The Trial Chamber, de facto and de jure, introduced a new legal category
21 and redefined an essential element under Article 2 of the Statute of this
22 Tribunal and for the purposes of this article.
23 Now I would like to turn to another issue, which is how the
24 protected persons are defined, and especially how this was defined in the
25 judgement that is now being reviewed on appeal. Therefore, the status of
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 the protected persons is actually conditio sine qua non in order to
2 characterise a criminal act in accordance with Article 2 of the Statute.
3 Protected persons are defined in Article 4 of the Geneva Conventions,
4 which state that in order to define this category, the persons affected
5 must be persons who are of a different nationality than the persons under
6 whose authority they are. In this particular case, it is clear that the
7 victims in this case were Bosnian Muslims and that the accused were
8 Bosnian Croats. It is also clear that both groups represent nationals of
9 Bosnia and Herzegovina. Therefore, in this particular case, in view of
10 the Defence of Mr. Cerkez, we cannot discuss the definition of protected
11 persons in such a way to ensure that this definition is in accordance with
12 the formulation in Article 4 of the Geneva Conventions.
13 Therefore, in paragraph 152 of the judgement, it is stated that
14 the concept of protected persons should be teleologically interpreted. I
15 have to admit that I was not entirely clear as to how would -- one
16 manifestly clear provision could be interpreted in any way that is
17 different from the formulation and the purpose of the formulation of that
18 concept. The concept of protected persons defined in the 1949 Geneva
19 Conventions has not been amended. Therefore, it is inappropriate that,
20 depending on the needs of the trial, or this or that situation, a strictly
21 defined concept be interpreted in a different way, be reformulated and
22 made different from its original definition in the original text,
23 especially if that text is a source of international humanitarian law,
24 defining the subject matter jurisdiction of this Tribunal.
25 Therefore, in the view of the Defence of Mr. Cerkez, the Trial
1 Chamber took it upon themselves to redefine and reinterpret a clear
2 formulation of Article 4, Geneva Conventions and thus create a new legal
3 norm which, under 1, is not an element of accepted international customary
4 law, which is referred to in the report of the general secretary from
5 1993. And second, this legal provision, which has redefined the Geneva
6 Conventions, came into force in the jurisprudence of this Tribunal after
7 the criminal acts were committed. And third, this is prejudicial to the
9 Therefore, the Defence concludes that it is inappropriate to apply
10 teleological interpretation of formulation of Article 4 of the Geneva
11 Conventions, but that, instead of that, this article should be interpreted
12 only in accordance with its original formulation.
13 I would like to remind you that any analogy in such cases, in
14 criminal law, is something every judge and every Trial Chamber should
15 carefully avoid.
16 The Defence believes that the Trial Chamber, by applying properly
17 international customary law, had to find that, in a given time and in a
18 given place, there were no elements of international armed conflict and
19 that, therefore, substantive law could not be applied in accordance with
20 Article 2 of the Statute of the Tribunal. I would like to add several
21 elements to this argument.
22 Article 4(2) of the fourth Geneva Convention from 1949 goes on to
23 say that nationals of a party to the war should not be considered as
24 protected persons as long as the state whose nationals they are continues
25 to have normal diplomatic relations with the state under whose authority
1 these persons are. If we apply this to the facts of this case, then we
2 come to the following conclusion: That Bosnian Muslims, as nationals of
3 Bosnia and Herzegovina, were in the hands or were victims who were under
4 the authority of Bosnian Croats, who are also nationals of Bosnia and
5 Herzegovina. Even if we suppose that Bosnian Croats were agents of the
6 Republic of Croatia, which this Defence vigorously disputes, even under
7 those circumstances, if we apply the Geneva Conventions, Article 4(2),
8 these persons cannot be characterised as protected persons.
9 Why is this so? Because from the moment when the Republic of
10 Croatia, as the first UN member state, recognised Bosnia and Herzegovina
11 as a state, so from that day until nowadays, not for a moment, not in any
12 way, were the diplomatic relations between these two countries disrupted.
13 On the contrary; these diplomatic relations exist at the level of
14 embassies. The Republic of Bosnia and Herzegovina had its own military
15 mission throughout the conflict, both in Zagreb and in Split. The entire
16 logistics, humanitarian aid, assistance given to the wounded and to the
17 refugees, went through the territory of the Republic of Croatia. And even
18 those items which were prohibited by the resolution of the Security
19 Council went through. This prohibition pertained to weapons. All of the
20 weapons flowed into Bosnia and Herzegovina, exclusively through the
21 territory and by using transportation means of the Republic of Croatia.
22 Now I would like to ask you, Your Honours: What state which
23 intervenes as an aggressor in another state would provide to their enemies
24 weapons, food, take care of the other state's wounded and the refugees in
25 their own territory? Therefore, it is absurd to come to this conclusion.
1 I would like to point out to another provision of the Geneva
2 Conventions, which is Article 2(1) of the 1949 Geneva Conventions, which
3 sets forth that 2 belligerent parties do not have to declare war to each
4 other in order for the international conflict to exist, but at least one
5 of the parties to the conflict, at least one of the participants, has to
6 be aware that there is an armed conflict.
7 No matter how hard you try, nowhere will you find an official
8 statement or a declaration or anything similar that would point to this
9 suggestion that Bosnia and Herzegovina at any time during the conflict in
10 the Lasva Valley objected or qualified the conflict as an international
11 armed one. Throughout the time summit conferences continued, numerous
12 agreements were reached, and I will recall here the joint declaration by
13 Tudjman and Izetbegovic from the 14th of September, 1993 -- 1992, which
14 said that the conflicts between the Army of Bosnia and Herzegovina and the
15 HVO were of local proportions.
16 In this connection, I would like to turn to one more issue. It is
17 indubitable that armed conflicts did occur throughout the territory of
18 Bosnia and Herzegovina. It is indubitable that some of them were
19 international and others were internal. However, in this specific
20 instance, there is really no legal ground or factual evidence to support
21 the finding on the existence of an international armed conflict.
22 If the eminent Judges have any questions on this subject, I am
23 ready to respond, before I move to the following ground of appeal.
24 JUDGE SCHOMBURG: Judge Pocar, please.
25 JUDGE POCAR: Counsel, I would like to be clear about your
1 position on some arguments you made here. In particular, as concerns the
2 test to be applied. If I got correctly what you said, you challenged the
3 legitimacy of the overall control test that was applied in Tadic and in
4 other cases by this Appeals Chamber, on the basis that it is looser than
5 the effective control test that was applied by the International Court of
6 Justice in Nicaragua a few years earlier. Am I correct that your argument
7 implies that first the Nicaragua test adopted by the ICJ was correct, and
8 second, that the assessment of the ICJ, as far as customary international
9 law is shaped, is final, irrespective of the specific situation put before
10 the court, and does not allow for a different assessment of customary
11 international law by anybody else? Is that your opinion, your view?
12 MR. MIKULICIC: [Interpretation] Your Honour, Judge Pocar, I would
13 like to answer your question in two ways. First, it is the view of the
14 Defence that the so-called overall control test is in fact inaugurated --
15 was in fact inaugurated after the commission of the relevant crimes.
16 Accordingly, that test was not part of the international customary law in
17 1993. Rather, it became, if it did, part of that law after 1993, which
18 presents us with a problem: Will the Chamber apply a de facto legal norm
19 adopted after the perpetration of the crime or not? In my view, such a
20 legal norm could be applied only if it is more favourable to the accused.
21 If that legal norm, in the view of the Defence, is more detrimental to the
22 accused, more prejudicial, then it cannot be applied, and we believe it
23 indeed to be less favourable because the test of the effective control
24 from the Nicaragua case is more rigorous and requires that more precise
25 and stricter elements be met than is true of the Tadic case, the overall
1 control test.
2 Let me conclude. The Cerkez Defence believes that, with the
3 application of this test inaugurated ex post facto delicto delicti
4 commissi the Trial Chamber applied a less favourable legal norm from the
5 point of view of the accused, and did so inappropriately.
6 JUDGE POCAR: I thank you. But in order to be clear: Your point
7 is that the test was inaugurated after the commission of the crime because
8 the assessment was made after the commission of the crime does not allow
9 for the possibility that the -- a Chamber in 2000 may assess the law in
10 1992 or in 1991, customary on that occasion, unless, as I said earlier,
11 you consider that the test is indicated by the ICJ had to be considered
12 final unless replaced by another test. So at the end, you seem to come to
13 say that the test indicated by the ICJ had to be considered final for
14 everybody until the moment, maybe, in which a new assessment is made by
15 another body. But until that new assessment is thus made, in between,
16 that law would apply in any case. Am I correct?
17 MR. MIKULICIC: [Interpretation] Yes, Your Honour. That is
18 precisely the position of the Defence team of Mr. Cerkez. As long as the
19 old norm is not replaced by a new one, it remains in force. The new norm
20 starts to apply when it enters into force, and applies to all the crimes
21 committed after its entry into force. That is the position of our
23 JUDGE POCAR: I don't want to prolong too much this debate, but
24 don't you think that in doing so, you give the ICJ the power to codify
25 international law, to decide what international law is, in general terms,
1 and this task has not been attributed to the ICJ, not even by the charter
2 of the United Nations. It just says the ICJ is a judicial organ that has
3 to assess customary international law for the purpose of the case, but it
4 in any case cannot codify the law as such. I mean, other bodies within
5 the UN system have the task to codify international law, as the case may
6 be. What would be your reaction?
7 MR. MIKULICIC: [Interpretation] Again, I agree with you
8 completely, Your Honour, and I can only say that the same argument which
9 you just put forward applies to this International Tribunal as well, with
10 one difference, namely, that this Tribunal was established with strictly
11 defined competencies and that it is an ad hoc Tribunal, and it is a
12 question, in legal theory, whether an ad hoc tribunal may create
13 precedents at all which would affect international law as such. And I
14 believe the International Criminal Court of Justice codifies the criminal
15 law and the international customary law in a way; however, the rules that
16 apply to the ICJ cannot apply to this Tribunal, for two reasons, namely,
17 that this Tribunal was established after the commission of the acts and
18 because it is an ad hoc Tribunal with a strictly limited time frame. I
19 suppose that we lawyers can discuss this for a long time to come.
20 JUDGE POCAR: I thank you. Your position is quite clear to me
21 now. Thank you.
22 MR. MIKULICIC: [Interpretation] You will allow me, Your Honours,
23 to move on to our grounds for appeal from paragraph 3, very briefly, I'm
24 afraid, to present the arguments of our Defence team that our client was
25 deprived of a fair trial because his fundamental rights granted by Article
1 20 and 20.1 of the Statute and Rule 89 were violated.
2 What is at issue here? The issue is that the Defence detected
3 prima facie at least eight infractions that it would qualify as violations
4 of the right to a fair trial. Having said that, the Defence does not
5 claim that each of the violations is of such proportions and such a nature
6 that it would io ipso, lead to an invalidation of the findings of the
7 Trial Chamber. But I would like to point to certain practice in regular
8 criminal courts.
9 Speaking of qualifications of physical injuries, legal
10 theoreticians have already made a distinction between lighter and more
11 serious injuries, bodily injuries. However, there is one more category,
12 namely, a great number of lighter bodily injuries taken together qualify
13 as a serious bodily injury, serious physical injury, although each one
14 taken apart is not serious. However, combined in a certain number, they
15 qualify as a serious injury.
16 Something similar was mentioned in the procedure that preceded
17 this trial, this appeal. Namely, our client was prevented from testifying
18 on his behalf. During its case, the Prosecution continuously disclosed
19 new evidence, and my colleague Mr. Sayers spoke of this at great length,
20 and very eloquently. The Defence, under the decision of the Trial
21 Chamber, was not given appropriate facilities to prepare its closing
22 argument and its final brief. Furthermore, despite two orders to disclose
23 documentation issued to the government of Bosnia and Herzegovina, and
24 despite the promises made by the representative of Bosnia and Herzegovina,
25 who said explicitly that they are in possession of documentation that
1 could be useful in the proceedings, these documents were not made
2 available until the end of the trial.
3 At the end of the trial, the Defence was prepared to put the
4 accused on the stand and let him present to the Trial Chamber his version
5 of the events. We are convinced that he is the right person to do this
6 because no one knows better than he what exactly happened and how. The
7 Defence thought that his testimony would be extremely valuable in shedding
8 light on certain aspects and circumstances that remained insufficiently
9 clear. His testimony was envisaged for a Monday, namely, the 16th of
10 October, 2000, at 9.00. The Trial Chamber ordered the Prosecution to
11 provide the Defence, in a timely manner, with the material on the basis of
12 which they intend to cross-examine our client.
13 What happened? This material was not made available to the
14 Defence before Friday, the 13th, which must be an unfortunate date. That
15 is precisely the weekend before our client's testimony was to take place.
16 At 10.00 p.m., the Defence received a pile of documents, 40 centimetres
17 thick, which it was supposed to review before Monday. We were, of course,
18 physically unable to go through these documents in time and prepare, and
19 even less were we able to contact our client in the Detention Unit to go
20 through the documents together with him and possibly hear his comments.
21 First of all, during the weekend, the lawyers are not entitled to visit
22 their clients in the Detention Unit; and second, this time would have been
23 insufficient anyway.
24 Therefore, we were forced to advise our client to renounce this
25 opportunity to testify, simply because we did not know what we would face
1 further on in the proceedings. We believe that, as a result of the acts
2 of the Prosecution, which the Trial Chamber did not sanction in any way
3 and did not revise them, the Defence was greatly prejudiced by the very
4 fact that our client was prevented from testifying.
5 Similarly, the things unfolded when it came to the preparation of
6 our final brief and the closing arguments. Your Honours, this case is one
7 of the most complex cases ever to be held before the international
8 criminal court until that time. You heard how many trial days were spent
9 here. You also heard how many witnesses testified here, how many exhibits
10 were admitted. So you could conclude that it was a very complex case. My
11 colleague Mr. Kovacic told you that the Cerkez case originally was part of
12 a case that was later split into four separate cases. When the Defence
13 appealed to the Trial Chamber to allow us, in this very complex case,
14 where there was a continuous flow of new material, to allow us extra time
15 to prepare our final brief and closing arguments, the Trial Chamber denied
16 our request. We asked for the same amount of time that was given to other
17 Defence teams in other Lasva Valley cases.
18 JUDGE SCHOMBURG: I know you were just enthusiastic in continuing
19 with your submissions, but I think it's time now for a break. And the
20 hearing stays adjourned until 3.35.
21 --- Recess taken at 3.18 p.m.
22 --- On resuming at 3.37 p.m.
23 JUDGE SCHOMBURG: Please be seated.
24 Mr. Mikulicic, if you allow me the following natural and
25 foreseeable question on the basis of your submissions in relation to the
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 non-ability of your client to testify. When you received the documents
2 and were able to go through the documents, did your client have then an
3 opportunity to, just to testify?
4 MR. MIKULICIC: [Interpretation] Thank you for your question,
5 Your Honour. When we received the documents and when we familiarised our
6 client with them, he said that he would like to testify but that he needed
7 several days to review the documents. We presented this request to the
8 Trial Chamber and asked for a four-day delay in his testimony. Frankly
9 speaking, we were hoping for a two-day delay. However, the Trial Chamber
10 denied our request and said that they would not be granting us any
11 additional time, and they explained this by a pre-existing timetable for
12 the trial.
13 Had we had just two or three more days to prepare, we would have
14 prepared and reduced the testimony of our client to just one day.
15 However, under the circumstances, we could not go ahead with it. We had
16 to forego the testimony of our client and thus we lost an ability to have
17 our client describe the situation in a light that would be favourable for
19 JUDGE SCHOMBURG: Would you please be so kind --
20 THE INTERPRETER: Microphone, please.
21 JUDGE SCHOMBURG: Would you please be so kind and give us some
22 guidance where to find this passage in the transcripts? Maybe not
23 immediately. I don't want to disturb the flow of your thoughts, but I
24 think it would be helpful to go into details because you made this point.
25 So please continue with your second point.
1 MR. MIKULICIC: [Interpretation] Thank you, Your Honour. I will
2 spend just a few more minutes of your time, and following that,
3 Mr. Kovacic will continue with our arguments.
4 Before the break, I started discussing the issue of -- the
5 preparations for our final brief and closing arguments. Your Honours, you
6 are fully aware of the complexities of this case. I reminded you of the
7 fact that this trial originally came from the same indictment as Kupreskic
8 and Blaskic and Aleksovski trials. We asked the Trial Chamber, in
9 accordance with the practice existing at the Tribunal at the time, to give
10 us additional time to prepare our final brief and closing arguments. We
11 believed that, first of all, since this was an extremely complex case that
12 went on for two and a half years, and since this was a case where we were
13 continuously inundated with new material provided by the Prosecution and
14 we continuously had to review the new evidence, we believed that this was
15 justified, especially in view of the fact that in the Blaskic case, the
16 Defence received four weeks to prepare closing arguments. In Aleksovski
17 they received three weeks, and five weeks in Kupreskic case. All of these
18 cases are Lasva Valley cases, and they're all very similar.
19 However, we were denied our request, and we received only three
20 working days. And this came after 240-something days of trial, 28.000
21 pages of transcript and so on. As a result, we believe that our client
22 was denied equality of arms. We believe that this was prejudicial to our
23 client, and we would like to bring to your attention a quote from the
24 Aleksovski appeals judgement wherein paragraph 24 it says:
25 [In English] "A reasonable opportunity to present his case."
1 [Interpretation] Similarly, I would also like to bring to your
2 attention the opinion of Judge Hunt in the trial judgement in Aleksovski
3 case where he said: [In English] "I also agree with the judgement, that
4 the Trial Chamber is not bound by the decision of another Trial Chamber,
5 although I believe that it should have respect for that decision and
6 consider carefully whether it is appropriate to depart from it."
7 [Interpretation] In our case, in our view, the Trial Chamber
8 denied us the practice that was customary here at this Tribunal where the
9 Defence is given additional time to prepare closing arguments and final
10 briefs, especially in a case like this one where we were unable to do so
11 during the trial for the -- because we were continuously receiving new
12 material, new exhibits, and that especially intensified in the last two
13 months of this trial.
14 I would like to close my arguments by stating that our Defence
15 team adheres to the grounds of appeal as stated in our appellant's brief
16 and further elaborated in our response to the Prosecution's brief. Should
17 you have any questions, I am available to answer them.
18 JUDGE SCHOMBURG: Thank you.
19 MR. MIKULICIC: [Interpretation] Thank you, Your Honour.
20 MR. KOVACIC: Your Honour, regarding your question on the
21 transcript, I just discovered that my computer failed, and I cannot go
22 through the pages of the transcripts, but I do know the date. It was on
23 17 October 2000, the beginning of the day.
24 JUDGE SCHOMBURG: Thank you.
25 MR. KOVACIC: Literally on the beginning, because we started that
1 morning with that discussion.
2 [Interpretation] I would like to touch upon two or three
3 procedural errors and follow up on what my colleague Mr. Mikulicic said.
4 We believe that taken as a whole, these errors significantly --
5 significantly violated the right of our client to have a fair trial. I
6 will also discuss the testimony of Witness AT, which was elaborated also
7 by the Defence of Mr. Kordic, and here I would like to speak only about
8 the part of this witness's testimony which we refer to as hearsay
9 evidence, and in this regard I would like to refer you to paragraph 8,
10 page 43 of our brief, as well as paragraphs 11 to 13, pages 44 to 45. We
11 have similar objections with respect to Witness Nihad Rebihic. This is
12 mentioned in paragraph 44(G) on page 101 of our appeals brief.
13 The judgement states that solely on the basis of the testimony of
14 Witness AT, the Trial Chamber came to the conclusion that our client,
15 Mr. Cerkez, was present at the military meeting held in Blaskic's offices
16 on the 15th of April, 1993, in late afternoon towards the evening, and at
17 that meeting a plan of attack on the Bosnian Muslims was drafted. The
18 attack was to take place on the following day.
19 This is mentioned in paragraphs 630 and 631 of the judgement, the
20 last sentence of paragraph 631 pertains to Mr. Cerkez.
21 This is an essential finding of the Trial Chamber which later on
22 leads the Trial Chamber to conclude that Cerkez and the soldiers who were
23 subordinated to him perpetrated crimes in Vitez, Stari Vitez, and Donja
25 I would like to remind the Trial Chamber that paragraph 630 of the
1 trial judgement, I will read it out in English: [In English] "Thus, in
2 deciding whether to accept -- whether to accept the evidence of Witness
3 AT, the Trial Chamber must determine to what extent his evidence is
4 confirmed by other evidence. In fact, there is no direct evidence
5 supporting his account of the meeting. However, there is circumstantial
6 evidence which does so."
7 [Interpretation] Following this finding, the judgement gives
8 several instances of circumstantial evidence which, in Trial Chamber's
9 view, corroborate the testimony of Witness AT. However, following that,
10 the judgement reads as follows: [In English] "These matters, by
11 themselves, would not be sufficient to lead the Trial Chamber to accept
12 the witness evidence."
13 [Interpretation] After that, the judgement goes on to say and to
14 assess coherence and credibility of the witness and concludes as follows:
15 [In English] "Although he could not bring himself to tell the full truth
16 of his own involvement in the attack and the Trial Chamber finds that he
17 was mistaken in his evidence about the use of the mosque for defence
18 purposes, which is not supported by the evidence of other witnesses, the
19 Trial Chamber is satisfied that he did tell the truth about the
20 preparations for the Ahmici attack, including the meetings at Hotel Vitez
21 and the subsequent briefings."
22 [Interpretation] Based on this finding that I just read out in
23 paragraph 630, in the following paragraph, 631, they conclude as follows:
24 [In English] "The Chamber is also satisfied that Mario Cerkez, as a
25 commander of the Viteska Brigade, was present at the military meeting
1 which followed the politicians' meeting."
2 [Interpretation] These findings, in our view, have three
3 significant flaws which clearly show that this finding of the Trial
4 Chamber, namely that Cerkez was present at the meeting, does not meet the
5 required standard, which is beyond reasonable doubt. And in support of
6 this, I state as follows: First of all, Witness AT did not say anything
7 about the matters discussed at that military meeting. The witness doesn't
8 know what was agreed upon at that meeting. The witness was not present at
9 the meeting. He learned about the fact that the meeting would be held
10 from his Commander Pasko Ljubicic. Therefore, in that respect, his
11 testimony is a typical example of hearsay.
12 Second, as regards the inference that Cerkez was present at the
13 meeting, there are -- there is direct documentary evidence showing that
14 Cerkez was not present at the meeting. Therefore, there is something that
15 fully contradicts the hearsay evidence of Witness AT, and this can be
16 found in Exhibit 610.1.
17 Regardless of the views taken by other parties in this trial,
18 including both the Prosecutor and Mr. Kordic, the Prosecutor, in their
19 final brief, expressed some doubts concerning that document. They were of
20 the opinion that that document should be taken into account only
22 [In English] I would kindly ask the usher to assist me.
23 [Interpretation] So some parts of that document do have a certain
24 value. As regards the meeting, the document that I just mentioned, 610,
25 does refer to the meeting. In English that's on page 58.
1 [In English] This is page -- little bit up so the number of the
2 page could be seen. No, no. The bottom of the page.
3 This is page 68 in English translation, and it is here clearly
4 recorded who was present at that military meeting. Cerkez was not among
5 them. There is no Viteska Brigade commander.
6 [Interpretation] I wish to remind the Honourable Judges at this
7 point of one fact: The judgement deals with this in detail, and you have
8 heard a lot about this meeting through our submissions. To avoid any
9 misunderstanding, it seems quite indisputable that first three meetings
10 were held at the hotel, followed by two meetings at the Bungalow in
12 The first meeting, and we still to this day don't know whether it
13 was held or not, was a meeting of political leaders, and then later,
14 towards the evening, a military meeting followed. And I suppose that the
15 Trial Chamber carefully chose the adjective "military." After that
16 evening meeting, according to Witness AT, a meeting was held in the TV
17 room of the hotel attended exclusively, according to his testimony, by
18 members of the military police, and that is evidently so because there is
19 no evidence to the contrary. And later on, two more meetings were held at
20 the Bungalow in Nadioci attended by only members of the military police,
21 two briefings.
22 The claim was that Cerkez attended only one meeting, namely the
23 second one, which was a meeting of military commanders in the office of
24 Colonel Blaskic. However, the duty officer's log, Exhibit 610.1,
25 constitutes direct evidence contrary to that assertion that Cerkez
1 attended that meeting. And essentially, my argument is this: We have two
2 conflicting pieces of evidence. One is hearsay evidence of Witness AT,
3 who says that Cerkez was present at the meeting. The second one is a
4 document from which it transpires that Cerkez did not attend. Ergo, if a
5 criminal plan was made at that meeting such as a plan that involved the
6 killing of civilians, Cerkez could not have known about it.
7 Furthermore, and this fact is very important, the same witness,
8 AT, later on in his testimony, that is transcript page 27668, explicitly
9 says that the first time he explicitly heard about killing orders was at
10 the Bungalow in Nadioci.
11 What is the implication of this, the statement that this was the
12 first time? The implication is that it was not mentioned at the military
13 meeting which, by the way, my client did not attend. But even if he had
14 attended, and that is my second argument, he still would not have learned
15 of any criminal plan because no criminal plan was discussed there. And in
16 conclusion of this part, the Chamber thus had two possible conclusions
17 open to it, two conflicting conclusions. Either he was there or he
18 wasn't. And according to the principle of in dubio pro reo, the Trial
19 Chamber should have, without a doubt, found in favour of my client, namely
20 that he did not attend. That is the only conclusion that could have been
21 arrived at according to the in dubio pro reo principle.
22 In order to avoid any loose ends, and we have clearly put this on
23 the table before, Cerkez does not deny that he did meet with Blaskic on
24 the 15th, the evening of the 15th at the hotel, but it was a bilateral
1 JUDGE SCHOMBURG: My apologies, but apparently there are two
2 different copies we have available, one from the Registry and the one you
3 put on the ELMO. It's not totally the same document, and if I may ask the
4 usher, please, to show the top of this page. Apparently only some
5 additions made in handwriting on the document which forms part of the
6 record and is in the position of the Registry. However, it doesn't change
7 anything as to the content. I only wanted to refer to the B/C/S version
8 where it reads apparently at 950 that due to this book Mr. Cerkez was
10 Please correct me if I'm wrong. Unfortunately, these pages are
11 not numbered in B/C/S. It's the same day, 9 --
12 MR. KOVACIC: [Interpretation] Your Honour, I was just about to
13 start that sentence when you asked the question.
14 The Defence never denied that Cerkez did not meet with his
15 commander, Blaskic; but it was a bilateral meeting. By all appearances,
16 and we haven't been able to establish this for certain, this meeting was
17 after the one just mentioned.
18 Why? There is clear evidence in the case, and I will refer you to
19 it in a moment, there is clear evidence that on the 15th of April, 1993,
20 in the afternoon, Cerkez was scheduled to attend a wedding ceremony at
21 church. Cerkez had been married before, but he wanted to marry in church
22 again because that was the wish of his wife, and that was scheduled for
23 the 15th of April, 1993, at 6.30 p.m. That is Exhibit D94/2, and direct
24 testimony was provided on this by witness Stipo Ceko transcript page
25 23439, and another witness priest Drago Pranjes on transcript page 26127,
1 as well as Witness C1 in the Kupreskic case, page 11136.
2 Thus Cerkez did go to the wedding, and I can provide the document
3 if you wish me to do so, but let us not waste more time.
4 When they were departing from the house, and I'm referring to
5 testimony of Witness Ceko, and getting into the cars, a telephone call
6 came, and Cerkez was invited to see Blaskic, but that happened after this
8 We don't dispute either that Cerkez received a verbal order there
9 concerning his mission for the next day, the 16th of April. And this
10 verbal order --
11 JUDGE SCHOMBURG: Sorry, could you please be more concrete on the
12 hours? We have in this logbook a number of entries where your client is
13 mentioned. For example, 12.50 hours, Colonel Blaskic called Mario Cerkez,
14 gave instructions. And some other entries before, since -- when was the
15 first one. At 9.50, for example. So it can't be only once. If the
16 logbook is correct, of course.
17 MR. KOVACIC: [Interpretation] Your Honours, not only for that day
18 but also for the other days, it is obvious from the logbook that Cerkez
19 had contacts with his commander, which was only natural. On that day, if
20 I'm not mistaken, he had some contacts in the morning and one contact in
21 the early evening. We are simply unable to say at what time exactly, but
22 it was certainly after 5.30 p.m. Probably around 6.00 p.m.
23 Cerkez wanted to testify about this, among other things, but he
24 was unable to.
25 It transpires from Exhibit D94/2 that the wedding was scheduled
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 for 6.30 p.m. We assume that they departed from home around 30 minutes
2 before. So he must have received this telephone call before 6.00. And if
3 we take into account the time it took him to get to the Vitez Hotel by
4 car, we suppose he could not be there before 6.30 under any circumstance.
5 Whether it was 6.30 or 7.00 p.m., it was early evening. And according to
6 the information we have about this meeting we see referred to in 610.1,
7 which took place at 5.30, in fact started at 5.30, then Cerkez could only
8 have arrive one hour late at least.
9 JUDGE SCHOMBURG: Please allow a question by
10 Judge Weinberg de Roca. Please.
11 MR. KOVACIC: [Interpretation] Certainly.
12 JUDGE WEINBERG DE ROCA: I don't know if it's the translation, but
13 perhaps you could be a bit more precise, because in the English we have a
14 lot of -- you assume the time, it could have been at that time, or it
15 could have been at that other time, but your client is here. He wanted to
16 testify. You can consult with him. So perhaps we could have some
17 precision. It was the day you explained of his wedding, so I'm sure he
18 must remember at what time he was married, what time he left headquarters,
19 et cetera.
20 MR. KOVACIC: [Interpretation] Thank you, Your Honour. That is
21 precisely the point. When we discussed this the first time while we were
22 preparing our Defence --
23 MR. FARRELL: I'm sorry. Excuse me.
24 MR. KOVACIC: [Interpretation] -- even then --
25 JUDGE SCHOMBURG: [Previous translation continues]... He wants to
1 say that Mr. Kovacic can't testify on behalf of his client today.
2 MR. FARRELL: That is the objection. Thank you.
3 MR. KOVACIC: [Interpretation] It's not only a problem of
4 testifying here today. I'm afraid that we may appear as wanting a trial
5 de novo. We are perfectly aware that we are not supposed to retry the
6 case, and I am going into this detail now only on the basis of the claim
7 that the finding of the Trial Chamber does not meet the beyond a
8 reasonable doubt criteria. And in order to show that I have to point to
9 some evidence that supports my claim. And to make matters worse, it is
10 our position, as my colleague indicated earlier, the problem is precisely
11 that our client was unable to testify, and this assertion was not
12 corroborated by any other evidence.
13 I must ask the Appeals Chamber to take into account that we
14 introduced this exhibit, D94/2, during trial and brought witnesses who
15 testified that this wedding was indeed scheduled for the 15th of April,
16 1993, for 6.30 p.m., and from this evidence, namely the testimony of Stipo
17 Ceko and the affidavit of Ruza Ceko accompanying this testimony, it
18 clearly transpires that they were leaving their houses, which were next to
19 each other, getting into their cars and driving to the church for the
21 The witness testifies that at precisely at that moment, the
22 telephone call came. Cerkez had to go back to his house and to leave. So
23 the wedding did not take place. And if we are aware of how long it took
24 to get from one point to another, we can reasonably assume that it took 20
25 minutes to get to the church. We can also assume that it took him about
1 ten minutes to change into his military uniform and drive there. And even
2 if he was very quick about it, he could not have been at the hotel before
3 6.30. He could only have been there later. But I'm not testifying about
4 this. I am only explaining the basis for my argument.
5 My argument is that Cerkez did not attend the meeting, and the
6 finding of the Trial Chamber is based solely on the hearsay testimony of
7 Witness AT, which is unreliable and thin and contradicted by two pieces of
8 direct evidence, Exhibit Z610.1, and Exhibit D94/2, supported by the
9 testimony of two witnesses.
10 I wish to tell this Appeals Chamber very clearly that Cerkez did
11 meet with Blaskic at the hotel alone. He received verbal orders at that
12 meeting, verbal orders that were typed up during the night and given to
13 him in writing later. That is Exhibit D60/2, and Cerkez did precisely as
14 he was instructed to in this order.
15 Later on I will come back to the part pertaining to the
16 implementation of that order, and now I would like to further discuss the
17 errors which resulted in fair trial violations.
18 The next issue that I would like to touch upon here is that we
19 believe that there is a problem with the authenticity of Exhibit Z692/3,
20 namely this exhibit was particularly referred to in the judgement in
21 paragraph 689(c). We mention this document in our appeals brief, in
22 paragraph 24, 24(c), 25, and, as I said, in the judgement it's mentioned
23 in paragraph 689(c), and relied on in findings in paragraph 691. It is
24 also mentioned in one other place in the judgement, 689(a), where the
25 Trial Chamber mentions Exhibit Z692.2, which was never admitted into
2 Let me explain this: Paragraph 691 of the judgement states that,
3 I'm quoting: [In English] "The Trial Chamber concludes that these
4 documents clearly establish that the Viteska Brigade was in the thick of
5 the fighting and that Mario Cerkez was in command of the brigade. In
6 particular, the brigade took part in operations in Vitez, Veceriska, and
7 Ahmici during 16 April 1993 in breaks, but only later in the day and not
8 during the initial assault on Ahmici."
9 [Interpretation] Therefore, this finding of the Trial Chamber is
10 both favourable and not favourable for Cerkez. On one hand, it is
11 unfavourable because based on this and some other documents, the Trial
12 Chamber concluded that Cerkez was involved in the Vitez operation as well
13 as in Veceriska, and at the same time, the Trial Chamber found that Cerkez
14 was not present in Ahmici, which is favourable for our client, at least
15 that he wasn't present there in the initial stage when these crimes were
17 These findings of the Trial Chamber were based on evidence which
18 was carefully analysed in paragraph 689 A through F. Under A this
19 paragraph first lists exhibit 692.2 which was never admitted into
20 evidence. The Prosecution agreed with this in their response, which can
21 be found in their response, paragraph 10.19 and 10.20.
22 Therefore, if one analyses paragraph 689 of the judgement, one can
23 see that there are several facts analysed here which are used to base the
24 findings upon. The first document mentioned in this analysis was never
25 introduced into evidence. Therefore, it cannot be used to base a finding
1 upon it, and the Prosecution agrees with this.
2 The next document in that analysis mentioned in paragraph 689(c)
3 of the judgement is something that Defence deems to be a forgery. There
4 were 4.665 exhibits admitted into evidence in this trial. In addition to
5 that there were several thousand other documents which were not admitted,
6 all of these documents were copies, and we never ever challenged the
7 authenticity of any of the copies. The only document whose authenticity
8 was challenged by us was precisely this exhibit mentioned in paragraph
9 6923 and there are many reasons to challenge the authenticity of this
10 document. I don't need to go into them now.
11 It is our position that copies can be used as evidence in trial
12 but only as long as one of the parties does not challenge the authenticity
13 of a copy. As soon as one party challenges the authenticity of the
14 document, the other party must either produce an original or produce other
15 evidence to authenticate the challenged document.
16 We believe this to be a general rule to be applied in criminal
17 trials. This is true for national courts, and I don't think that it needs
18 to be further elaborated.
19 This document appeared without Defence ever seeing it before, so
20 this document appeared on the 5th of October, 2000, when Witness Anto
21 Bertovic gave evidence, and the Prosecution, in cross-examination,
22 presented this document.
23 On page 25954 of the transcript, this is what Bertovic said about
24 this document: "Well, I personally did not see this document before.
25 This command or this type of command never reached me, and perhaps I can
1 think of an explanation. It may be because the Vitez Brigade was not
2 capable at all especially my battalion of anything like this. I
3 personally never received this document and I do not know that the Vitez
4 Brigade received it either. I know nothing about it all."
5 Then a little bit later on 26003 and 25997, the same witness
6 said -- the same witness was also talking about that document.
7 [Interpretation] This document was not shown to the Defence prior
8 to that day, and this is why the Defence was denied an opportunity to
9 challenge the document. This is referred to in pages 55 to 58 of our
10 appellant's brief. And perhaps I should add another matter, which is that
11 the same document was used in cross-examination of another witness by
12 Prosecution, Witness Zuljevic on the 8th of December 2000 on page 28196 of
13 the transcript. This witness reacted in a similar way and I will read to
14 you what the witness said.
15 [In English] "This, this is an outrage. This doesn't look like
16 Colonel Blaskic. He was aware of the fact that we did not have any
17 manpower. Gentlemen, I have been saying consistently, and I'm sure that
18 in Donja Veceriska, Ahmici, Sivrino Selo, and Vrhovine in particular at
19 that time on the 16 of April, there were never activities on the part of
20 the Viteska Brigade. And now what this order refers to I really cannot
21 understand, and I cannot explain it for sure."
22 [Interpretation] Let me show you this document, 692.3. We will
23 put it on ELMO. Based on this document, Cerkez was ordered, and this
24 document is dated 16th of April, 1993, at 10.35 hours, so this document
25 orders Cerkez to go to Donja Veceriska, Sivrino Selo, and Vrhovine. So
1 Sivrino Selo and Vrhovine, two out of four places mentioned in the
2 document were never once mentioned throughout the war as places where
3 there was any conflict. It was established that Cerkez was not present in
4 Donja Veceriska on that morning, and at any rate, this does not implicate
5 Cerkez because the crime in Ahmici was over by 10.35.
6 One thing that is important for Cerkez is that this order mentions
7 Donja Veceriska. On the other hand, there were many exhibits which
8 corroborate the Defence case of Cerkez, one of them being that Cerkez and
9 his unit were never present in Donja Veceriska, and even had they been
10 there, which is something that Defence denies, even had they been there,
11 there were no crimes committed there. There was just a legal military
12 operation implemented there. There were no crimes against civilians in
13 that place.
14 So these are the issues that I qualify as violations of fair trial
15 guarantees. In addition to that, in my view these two documents
16 demonstrate that one of important findings concerning Cerkez's involvement
17 in certain locations do not meet beyond the reasonable doubt standard,
18 because careful analysis shows that the findings of the Trial Chamber are
19 not in accordance with evidence presented.
20 In conclusion of our third ground of appeal pertaining to fair
21 trial guarantees, I would like to go back to something that my colleague
22 has mentioned in the beginning. We can agree that none of the errors that
23 my colleague mentioned and that I have mentioned are on their own so grave
24 that they would justify the reversal of judgement. We agree with that
25 claim. However, we submit that a more realistic approach should be
1 applied here; namely, the Chamber must realise that a series of such
2 errors, we have pointed only the main ones here and the rest are in our
3 appellant's brief, therefore that a series of such errors definitely --
4 definitely affected the right of our client to a fair trial.
5 Therefore, we propose that Cerkez be acquitted of all counts,
6 because taken together, all of these errors have violated his statutory
7 guarantees to fair trial to that extent that this can only be cured by
8 invalidation of trial judgement.
9 I don't know how much time we have left; however, I hope that I
10 will be able to conclude within the next ground of appeal within the 30
11 minutes. If you have any questions, Your Honours, I am ready for them.
12 JUDGE SCHOMBURG: You still have 30 minutes, until 5.00 sharp.
13 MR. KOVACIC: Thank you, Your Honour.
14 [Interpretation] If there are no questions, I would then like to
15 move on to the next ground of appeal which in our chronology is the second
16 ground. To save time, I will not go into great detail. This ground of
17 appeal has to do with criminal responsibility under Article 7(1) and 7(3).
18 We discussed this in our appellant's brief on pages 23 to 33 and in our
19 reply to Prosecution's response on pages 10 to 13. Later on when I speak
20 about the sentencing, I will also touch upon this -- these articles, 7(1)
21 and 7(3), because I think that it would be more logical to do it at that
23 Therefore, I would like to move on to the fourth ground of appeal,
24 which deals with the fact that several factual findings of the Trial
25 Chamber were also flawed and not in accordance with the standard beyond
1 reasonable doubt.
2 In our brief, we explain in detail how the Defence believes that
3 the erroneous findings of the Trial Chamber, which established our -- that
4 our client was guilty of crimes committed in Vitez, Stari Vitez, and Donja
5 Veceriska locations. These findings can be found in paragraph 601, 610 to
6 612, 619, 621, 630, as we have already mentioned, 631, last sentence of
7 that paragraph as we have also already mentioned; and then paragraph 642,
8 691, 703, 809, 831, 836, 842, and 843.
9 In our brief, we also mention this in paragraphs 1 to 4 in the
10 introductory segment and then later on throughout the brief.
11 As for the counts, we refer here to counts 2, 5, and 6, 14, 15,
12 17, 19, 41 to 44, 42. So this is what it mostly deals with.
13 Your Honours, I don't think there is a need to explain in great
14 detail that if the factual findings are erroneous, and they are erroneous
15 because they don't meet the required standard, which is beyond reasonable
16 doubt, then such erroneous factual findings are obviously flawed because
17 inappropriate substantive law was applied to them, and here we are
18 referring to Article 25.1(B) of the Statute. Violations of substantive
19 law necessarily result in miscarriage of justice, and in that respect, all
20 I wish to say is that if the relevant findings of the Trial Chamber were
21 not made in accordance with the required standard, namely beyond
22 reasonable doubt, then this necessarily leads to erroneous factual
23 findings and other flaws in application of substantive law.
24 At this point, I would like to indicate certain instances. We
25 made at least eight or nine such references in our appellant's brief, and
1 I will deal only with the most important ones, noting that we of course
2 adhere to all of them as substantiated in our appellant's brief.
3 First of all, we believe that there is insufficient evidence
4 judged by the beyond reasonable doubt standard to conclude that the
5 appellant was aware of the alleged plan made by the HVO on the 16th of
6 April. We refer to paragraphs 610, 611, 612, 613, and 631 of the
8 In these findings of the judgement, we read that Cerkez allegedly
9 knew of the so-called criminal plan of the HVO for the 16th of April,
10 1993. The -- that is the first basis for the Trial Chamber's conclusion
11 about Cerkez's mens rea. He must have known, according to the Trial
12 Chamber, of this plan in order to be liable for the acts committed. That
13 has to do with count 2, persecution; count 5, 6 -- 5 and 6, assault on
14 civilian and civilian institutions, destruction not justified by military
15 necessity, murder, et cetera.
16 The judgement says that at the alleged meeting of the 15th of
17 April in Blaskic's headquarters, a criminal plan was devised. The
18 conclusion about the existence of that criminal plan is based on the
19 testimony of Witness AT, as I mentioned earlier.
20 We attack this conclusion because this is hearsay evidence and
21 because there is documentary evidence to the contrary showing that Cerkez
22 could not have attended the meeting where the alleged criminal plan was
23 designed, and furthermore, later on in his testimony, Witness AT, on
24 transcript page 27668, testified that the first time he heard about the
25 alleged criminal plan was at the Bungalow. The meeting that Cerkez,
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 according to the Trial Chamber, attended could only have discussed
2 legitimate military plan, and this is corroborated by evidence we have on
3 the events of the following day. I shall not elaborate any further on
4 that meeting. I believe I have covered all the important points. More
5 detail can be found in our appellant's brief. I only wish to emphasise
6 that this plan, in fact the conclusions of the Trial Chamber in paragraph
7 630 and 631 formed the basis for the later establishment of Cerkez's
8 liability for his alleged participation in acts committed in Donja
9 Veceriska and Stari Vitez.
10 Although there is abundant evidence on the record that Cerkez took
11 part in preparing legitimate military action, defensive military action,
12 and the judgement refers to that evidence, it is not explained anywhere in
13 the judgement why the Defence case that this was defence activity was
14 rejected. This is another reason why the Defence believes that the
15 finding was made below the reasonable doubt standard.
16 Another finding of that kind can be found in paragraph 691, 689,
17 and 690. That is the finding that the Viteska Brigade was in the thick of
18 the fighting and was, therefore, involved in the fighting in the Lasva
19 Valley on the 16th of April.
20 In paragraph 691, the Trial Chamber concludes that these documents
21 clearly establish that: [In English] "...Mario Cerkez was in command of
22 the brigade. In particular the brigade took part in operations in Vitez,
23 Veceriska, and Ahmici during 16 April, but only later in the day and not
24 during the initial assault on Ahmici."
25 [Interpretation] I referred earlier to the relevant evidence that
1 finding was made in paragraph 689(a) to (f), and I will not repeat it
3 One the first elements analysed and used to lay the foundation for
4 the judgement was documentary evidence which was not admitted into
5 evidence or represented a forgery.
6 In paragraph 601, the Trial Chamber rejects the claim of the
7 Defence concerning the low level of organisation and readiness of the
8 Viteska Brigade on the eve of the events. We respond to that in
9 paragraphs 26 to 29 on pages 58 to 69 of our appellant's brief. In this
10 paragraph it says: [In English] "The Trial Chamber, having considered the
11 evidence, is satisfied that this picture of organisation and confusion
12 presented by the Defence is not correct and that the brigade was
13 sufficiently well organised and established to carry out the tasks
14 allotted to it on 16 April 1993."
15 [Interpretation] Cerkez, however, points out that the unit under
16 his command was insufficiently organised, and it's sufficiently strong to
17 perform the relevant tasks on several locations at the same time. Namely,
18 on the 15th of April, Blaskic issued four military orders, all four of
19 them having been entered into evidence, Exhibit D60/2, D343/1-6, D343/1-7,
20 and D343/1-8. In these documents, these four orders issued by Blaskic
21 that were entered into evidence, Cerkez received the included a definition
22 of his zone of operation for the following day. His assignment was to
23 take position in the -- in the area of defence, to block the villages and
24 prevent entry and exit in these villages. The location is precisely
25 described in the order which says that an attack of the enemy is expected
1 from the direction of Kruscica towards the centre of the town and from
2 Vranjska to the centre of the town.
3 This order was presented several time during trial to a number of
4 soldiers. If you allow for a moment my colleagues from the Prosecution
5 promised to share with us a map that I would like to put on the screen
6 showing the area of Vitez.
7 JUDGE SCHOMBURG: This is a good occasion to put two questions to
8 you. The map now is already admitted into evidence?
9 MR. FARRELL: Yes.
10 JUDGE SCHOMBURG: And second, please allow me this question having
11 been not in the area at all. We found throughout the judgement the
12 mentioning of Vitez and Stari Vitez. Am I correct in assuming that Stari
13 Vitez is part or forms part of Vitez? It's the old town of Vitez?
14 MR. KOVACIC: [Interpretation] Absolutely, Your Honour. That is
15 one and the same town, and it is difficult to discern the difference at
16 first even if the local residents are able to show you that one part of
17 the town is called Stari Vitez, whereas the other one is called Kolonija.
18 That is one and the same town, and if you look at the map on the video
19 evidence screen, the map doesn't show any difference either, but Stari
20 Vitez would be the north-west section in the form of the triangle.
21 JUDGE SCHOMBURG: So it would be your submission that it is
22 incorrect to charge your client twice for crimes committed in Vitez and
23 Stari Vitez?
24 MR. KOVACIC: [Interpretation] Yes, Your Honour, especially because
25 this is an issue of semantics. That is one, as you pointed out. Vitez
1 and Stari Vitez are one and the same location. However, there is another
2 matter. It is absurd to talk of any HVO attacks on the part of the town,
3 conditionally speaking, on the part of Vitez, excluding the other part of
4 the town. There was no one to attack there, because the part of the town
5 called Vitez was a base for the HVO from the beginning, unlike the other
6 part, Stari Vitez. That was the headquarters of Blaskic, the headquarters
7 of Cerkez. They could not have attacked themselves. It is absurd to talk
8 of any attacks on Vitez.
9 It is another matter that some people were arrested in the Vitez
10 part of town, but my client was not charged with these arrests, and there
11 is evidence that it was done by the civilian police, not the military
12 police. My client was charged only with detention, not arrests.
13 So when we speak of locations, we believe, actually, there are two
14 locations critical for my client. One of them is Donja Veceriska, which
15 is found a little to the left from Vitez on this map, along this
16 horizontal line, Donja Veceriska. And the second one -- yes, we can speak
17 of Stari Vitez only inasmuch as it was a part of town which held the TO
18 headquarters of the BH army, and as soon as the conflict broke out between
19 the two parties, the line was drawn there and the town was divided.
20 With your leave, and I believe we could conclude this part with
21 this, I would like to show the evidence we discussed, the first one being
23 [In English] If you would please turn the page on the English
25 [Interpretation] That order defines the zone of responsibility,
1 the military area of responsibility of my client in such a way that
2 between the centre of town, the town of Vitez on one hand and Kruscica and
3 Vranjska on the other hand. On the map these villages are found to the
4 south of the town.
5 The second order, 343/1, was issued to the civilian police, and
6 their assignment and zone of possibility were clearly defined as being in
7 the centre of town, because the order mentions some key features and key
8 buildings. Thus according to this military order issued by Blaskic, this
9 unit is in the centre of town with a task of protecting key buildings.
10 The third order was issued by Blaskic. All of them were issued on
11 the 16th of April early in the morning. That third order was issued to
12 the commander of the Vitezovi battalion, one of the greatest military
13 forces of the HVO at the time, and their assignment was defined on the
14 axis of the firehouse to the bus station to the HVO headquarters, which
15 means towards the part of town called Stari Vitez. The evidence is
16 absolutely clear about this. There is no doubt that it concerns the
17 firehouse and the bus station which are found in this part of town.
18 And the fourth order -- now we are seeing the third one, and it is
19 followed by another one addressed to the commander of the 4th Military
20 Police Battalion, Ljubicic, who was ordered to occupy the road from Ahmici
21 to Nadioci. That is the north-east area below the town. What exactly
22 happened there is not something I'm going to discuss at this point, but if
23 we look at these four orders combined, and if we look at a map of Vitez,
24 it is indubitable that the order assigns Cerkez to be on the right side
25 towards Kruscica and Vranjska. The Vitezovi have positions to the west,
1 and the military police are assigned to be on the axis towards Ahmici.
2 Now, the question is: Were these units on the following day
3 really in their assigned areas of responsibility as defined in the order?
4 I submit that all the evidence in the case, if interpreted correctly and
5 if what I just mentioned is taken into account, all the evidence in the
6 case, without exception, shows that all of these units were precisely
7 where they were supposed to be. Not a single piece of evidence points to
8 the contrary. I am absolutely convinced that the Viteska Brigade was in
9 its own zone of responsibility, and I'm absolutely certain the others were
11 What is the problem we faced in this case? In this case,
12 Your Honours, during the Prosecution case, the OTP advanced the thesis,
13 and I'm simplifying it now, that the HVO was equal to Cerkez. So whenever
14 a witness said the HVO came in and did this or that, then the Prosecution
15 interpreted this to mean Cerkez. Naturally, very soon in the trial other
16 evidence emerged showing that the HVO was an organisation, was a party to
17 the conflict, and that within that organisation in that area there were
18 several discernible units of the HVO, none of which was the Viteska
19 Brigade. Therefore, this thesis, and here I'm referring to the vagueness
20 of the indictment, is not true. The HVO is not equal to Cerkez. The HVO
21 had many brigades, and Cerkez was the commander of just one unit, which he
22 has not denied from the very beginning.
23 There were many exhibits in the trial showing that his brigade was
24 established on the eve of the conflict. Therefore, this is another reason
25 why this unit was not strong enough.
1 Blaskic, as a commander, being aware of his forces, assigned just
2 one limited sector to this unit. Therefore, this unit had a clearly
3 defined area of responsibility.
4 [In English] Your Honours, perhaps this would be a good moment to
6 JUDGE SCHOMBURG: May I ask you how long do you intend to
8 MR. KOVACIC: Your Honour, if you give -- if you would be so kind
9 to give me the opportunity to answer on that when you are coming back,
10 because I cut out some things and will try to make an estimate.
11 Otherwise, I could mislead you.
12 JUDGE SCHOMBURG: We'll come back to this question immediately
13 after the break. Normally your time would have elapsed --
14 MR. KOVACIC: Thank you.
15 JUDGE SCHOMBURG: -- but we'll discuss it only during the break.
16 Only that the record is clear, Mr. Farrell, you indicated that the map
17 shown on the ELMO was admitted into evidence during trial, that the record
18 is clear. Can you also give us the exhibit number?
19 MR. FARRELL: One moment, please, Your Honour.
20 Your Honour, it's my understanding as I suspected that the map
21 that's been shown on the screen is the one that was agreed to by the
22 parties and Your Honours for the purposes of the submissions. So I don't
23 think it's a trial exhibit obviously. It's the copy of the map that was
24 agreed to by the parties for the purpose of the appeal, and it was scanned
25 into the record so that we could use it on the computer screens as well.
1 JUDGE SCHOMBURG: Okay.
2 MR. FARRELL: I can't remember the exhibit number we placed on it
3 at the beginning of the hearing, but that's the one. If there isn't one,
4 it might be advisable for the purpose of the record --
5 JUDGE SCHOMBURG: We didn't. In the beginning I asked you
6 precisely 17 minutes before and you told us it was admitted into evidence
7 already during trial. Okay. But then we need a new exhibit number. May
8 we please have the number.
9 [Trial Chamber and registrar confer]
10 MR. KOVACIC: Your Honour. If I may assist, Your Honour.
11 Your Honour, I think -- I think to make things simpler, I think that we
12 can stipulate that this map is the same map which is included in the
13 evidence, and it is shown under annex 6, number 4 map -- annex to the
14 judgement. It is the very same map.
15 JUDGE SCHOMBURG: Yes.
16 MR. KOVACIC: So it is on the record.
17 JUDGE SCHOMBURG: It's on the record. It's in the judgement.
18 MR. KOVACIC: It's 4 under annex 4 -- annex 6. Sorry.
19 JUDGE SCHOMBURG: None of the parties have a problem with this.
20 I would kindly ask you to wind up in about 15 minutes. Would it
21 be acceptable for you? We can continue on this basis. I think it's fair
22 with respect to the time you missed. So --
23 MR. KOVACIC: [Interpretation] Your Honour, I hope it won't be rude
24 if I ask you for 20 minutes and, if you require, I can take up less time
25 in my reply to the Prosecutor.
1 JUDGE SCHOMBURG: Minima non curat praetor. Therefore, the trial
2 stands now adjourned until half past five, and you will have the requested
3 20 minutes. Thank you.
4 The trial stays adjourned.
5 --- Recess taken at 5.03 p.m.
6 --- On resuming at 5.33 p.m.
7 JUDGE SCHOMBURG: Please be seated.
8 MR. KOVACIC: Yes, thank you, Your Honour. I'm confident that I
9 could wrap that up in 20 minutes, as you kindly gave it to me.
10 [Interpretation] First, my colleagues have warned me that perhaps
11 some of the answers were not correct, the answers given to the question of
12 Her Honour Judge Weinberg de Roca concerning the wedding. The wedding was
13 announced and, as scheduled in the church records, two months ahead of the
14 event. Witness Pranjes testified about this, and that can be found on
15 page 26127 of the transcript.
16 Next, His Honour Judge Schomburg mentioned the hours indicated in
17 the duty-officer's logbook, and I think that what you quoted pertained to
18 the 16th of April, whereas the page that I put on the screen had to do
19 with the 15th of April. So a day before.
20 I will now devote less than five minutes to the issue of
21 responsibility under 7(1) and 7(3), and then five minutes will be devoted
22 to Donja Veceriska and Stari Vitez, and then the last five minutes I will
23 devote to our request, our proposal.
24 As for the responsibility under 7(1) and 7(3), we believe that
25 Cerkez should not have been found guilty for counts 5, 6, 14, 15, 17, 19,
1 29, 30, 31, 33, 35, 41, 42, 44 of the indictment, or rather, we believe
2 that this pertains to all of the counts of which he was found guilty from
3 count 5 through count 44, because, based on the judgement, Cerkez was
4 found guilty under both Article 7(1) and 7(3). We base our submissions on
5 the development of the jurisprudence.
6 I will enumerate several judgements which state that cumulative
7 convictions are not allowed, both under 7(1) and 7(3). This was stated in
8 the following cases, and I would like to remind you that our judgement was
9 passed down on the 27th of February, 2001. On the 20th of February, 2001,
10 in Mucic case, paragraph 405; Kunarac case, the 12th of June, paragraph
11 173; Krstic trial judgement, 2nd of August, 2001, paragraph 65 -- 605;
12 Naletilic judgement on the 31st of March, 2003, paragraph 79.
13 The first two judgements that I mentioned, Kunarac and Mucic are
14 appeals judgements, whereas the second two are trial judgements.
15 Based on findings in these judgements, the Trial Chamber has to
16 select which form of criminal responsibility is more appropriate for
17 conviction. However, there can be no cumulative conviction.
18 Now, five minutes to be devoted to Donja Veceriska. As regards
19 the alleged attack on Donja Veceriska and the finding that Cerkez
20 participated in that attack, based on which he acquired criminal
21 responsibility, I would like to say the following: First of all, the unit
22 of Cerkez was not present there. Two witnesses, one for the Prosecution
23 and one for Defence, testified to this effect. One was Drmic Bono and the
24 other one was Witness V. This is mentioned in my brief.
25 In addition to that, there were documents reflecting that tensions
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 between two communities existed there even before the attack. Their
2 following acts which support the claim that this was a legitimate military
3 objective. First of all, the village is located next to an important
4 explosive factory, which is of great strategic importance. There were
5 many exhibits corroborating this, so this is not disputed.
6 Second, there was a military unit in the village, the military
7 unit of the Army of Bosnia and Herzegovina, defending the village. There
8 were also village guards of Croats who were also defending their houses in
9 the village. The fighting lasted for 48 hours, and on the second night of
10 the fighting, both civilians and the soldiers, Bosniaks, left the village
11 with the assistance of UNPROFOR. Only eight persons were killed in the
12 fighting, and there is nothing to show whether these persons were
13 civilians or soldiers and whether they were killed accidentally or whether
14 they were killed as a result of excessive force.
15 The configuration of terrain in the area of Kruscica [as
16 interpreted] gave the possibility to the Army of Bosnia and Herzegovina to
17 use Kruscica as their stronghold in that area and to descend very easily
18 to the area around the factory. Therefore, the HVO took the village
19 precisely because they wanted to protect the explosive factory.
20 And this is an important aspect. There was no evidence to show
21 that the civilians who were killed during those 48 hours were
22 disproportionate to the extent of the operation that was led there.
23 MR. KOVACIC: Counsel warned me that there is an error in
24 transcript in line 20, location Kruscica is mentioned instead of Donja
25 Veceriska. We are talking now about Donja Veceriska. Sorry. In 21st
1 line, in 20 line it's good. Kruscica, the soldiers to come to Donja
2 Veceriska. Anyway, it's obvious.
3 [Interpretation] As for Stari Vitez, the attack on Stari Vitez, it
4 is claimed that the Viteska Brigade participated in that attack and Cerkez
5 was found guilty of that. However, we claim that there was no evidence to
6 show that, first of all, Viteska Brigade was involved in that attack,
7 because, based on the orders that we showed you, it becomes obvious that
8 that was not the area of responsibility assigned to Cerkez.
9 Second, witnesses who could have given some details about the
10 soldiers who were seen in Stari Vitez during the conflict said that those
11 were either Vitezovi or members of police. Witness Zlotrg, at 1663,
12 stated that Muslims were arrested there either by the military police or
13 by Vitezovi. This is mentioned in my brief.
14 Stari Vitez, similar to Donja Veceriska, was another stronghold of
15 the forces of Army of Bosnia and Herzegovina from October of 1992. The
16 fact that Stari Vitez was encircled and that it mounted defensive
17 operations for full 11 months. Therefore, this fact that they were
18 encircled for 11 months shows that the HVO was never able to take Stari
19 Vitez despite the fact that they made two attempts to do so. This is a
20 fact that illustrates that here there were two armies. So the attack on
21 Stari Vitez on the 16th of April was a justifiable military operation, and
22 there is nothing to show that excessive disproportionate force was used
23 against facilities in that location. Also, there is no evidence to show
24 that civilian facilities were targeted. Basically, the HVO was thrown out
25 of Stari Vitez as soon as the conflict broke out.
1 I think that we were detailed enough in our brief regarding these
3 I would like now to put forward our proposals. So as to the first
4 issue of Article 7(1) and 7(3), I believe them vital with respect to
5 sentencing, obviously. If this Appeals Chamber accepts the jurisprudence
6 we pointed to, Cerkez should not be convicted doubly, and I think that
7 would evidently reduce his criminal responsibility and, subsequently, his
9 As for other final submissions with regard to our submission that
10 the Trial Chamber erroneously accepted the position that the conflict was
11 international, if our arguments were to be accepted, counts 15, 19, 30,
12 31, 33, and 35 should be dropped, because it is acts under Article 2 of
13 the Statute that are incriminated, and Article 2 does not apply if there
14 is no international armed conflict.
15 And as for the grounds of appeal to the effect that fair trial
16 guarantees were violated in Cerkez's case, that would affect all counts,
17 of course, and Cerkez should be acquitted on all of these counts. And as
18 for a part of these convictions regarding the standard of findings, which
19 should be the beyond reasonable doubt standard, Cerkez should be acquitted
20 on counts 5, 6, 14, 15, 19, 41, and 42, because these findings conclude
21 that Cerkez's units committed crimes in Stari Vitez, Donja Veceriska, and
22 we believe there were not enough elements for such findings.
23 As for the fourth ground of appeal, we are again dealing with the
24 standard of beyond reasonable doubt. The situation is here as we
25 indicated before, and with respect to sentencing, apart from the fact that
1 I believe that counts 35 and 44 are indisputable, cumulative convictions
2 should not be allowed under Article 7(1) and 7(3). And I submit that the
3 Appeals Chamber should take a step-by-step approach. If our submission
4 that the sentence is too high and should be reduced is accepted, then the
5 Appeals Chamber should decide to what extent it should be reduced, in view
6 of the grounds of appeal, and only as a second step, bearing in mind that
7 counts 35 and 44 would be eliminated, since certain sessions already
8 reduced the scope of other counts, and in view of the elimination of
9 cumulative convictions, the Appeals Chamber should decide to what extent
10 the sentence should be reduced with the elimination of these counts.
11 Because, in that case, the responsibility of Cerkez should be
12 significantly smaller.
13 Certain facts were quoted regarding his family background as well,
14 which clearly indicates that his sentence should be reduced, regardless of
15 the ground of appeal. With this, I remain at your disposal for any
16 questions, and I apologise for taking up more time than envisaged. Thank
18 JUDGE SCHOMBURG: Thank you. I believe we have only one problem
19 remaining. It's mandatory under the Appeals Chamber jurisprudence that we
20 have to take into account the familiar life, socialisation, and the
21 relation to the family as it stands now.
22 We have received your submission of facts regarding matters of
23 sentencing. However, it's not in the form of an affidavit. It's just a
24 submission by you, dated 4 May 2004. In order not to waste too much time
25 on these issues, I would invite the parties, in how far -- to a degree
1 after the session today, to which extent you can accept some of the points
2 included in this letter as agreed facts. I think this would facilitate
3 the proceedings, and then we can come back to this issue later tomorrow.
4 This is acceptable for you, Mr. Kovacic? Mr. Farrell?
5 MR. KOVACEVIC: [Interpretation] Absolutely, certainly.
6 JUDGE SCHOMBURG: We are looking forward --
7 MR. KOVACEVIC: [Interpretation] Your Honour, with your leave, with
8 regard to these circumstances, and I believe I can speak on behalf of my
9 colleagues as well, because we just tried to establish the situation by
10 telephone, we later heard that Kordic's Defence elicited the opinion of
11 Mr. McFadden, the warden of the Detention Unit, on the conduct of the
12 detainees from the conviction to date. And we have just been informed
13 that this opinion will be delivered to us in our lockers. And if you
14 allow it, we would submit it to the Appeals Chamber tomorrow.
15 JUDGE SCHOMBURG: Yes, of course. And if it shouldn't be
16 available, Mr. Farrell, I think this is undisputed that the behaviour of
17 both accused, they were never subject to any problems. So we can take it
18 that the note given by Mr. McFadden will be the same as we receive it
19 always, that in saying that there was no problem with the behaviour of
20 both accused. Is it disputed?
21 MR. FARRELL: At this stage, I'd have to at least take a look at
22 the report. I apologise. I'm not in a position --
23 JUDGE SCHOMBURG: Okay. We can settle these matters tomorrow, but
24 we shouldn't forget about this; otherwise, we can't address the question
25 of rehabilitation.
1 So this concludes your submissions, and it's now for the
2 Prosecution. I don't know what is the time you would need.
3 MR. FARRELL: If you'll give me just one minute, I'll inform you.
4 JUDGE SCHOMBURG: Yes.
5 [Prosecution counsel confer]
6 MR. FARRELL: Thank you for your indulgence, Your Honour. I think
7 in total it will probably be -- we certainly won't need the two hours
8 that's allotted to us. We can probably cut out maybe half an hour, I
9 would think, actually. So I don't think we'll finish within the one hour
10 this evening, if that's your question.
11 JUDGE SCHOMBURG: So we take it we continue now until 7.00 sharp,
12 and you continue tomorrow, say, nearly half an hour that we stay in our
13 schedule, and we take your word as granted that when we come to your
14 appeal, 30 minutes will be deducted. Thank you.
15 MR. FARRELL: Thank you.
16 MR. KOVACIC: Your Honour, excuse me. If I'm not wrong, according
17 to the schedule, Scheduling Order, the Prosecution was given one hour for
18 the response. And then we got half an hour for reply.
19 JUDGE SCHOMBURG: If you're right, you're right.
20 MR. KOVACIC: I really don't know whether I am, but I just ...
21 JUDGE SCHOMBURG: You have to look on Wednesday, 19 May 2004, and
22 there it starts from 9.00 to 10.30, submissions by the Prosecution. You
23 have to add this. So, therefore, it's already an abbreviation.
24 [Appeals Chamber confers]
25 [Appeals Chamber and legal officer confer]
1 JUDGE SCHOMBURG: So please continue, or start.
2 MR. FARRELL: Thank you, Your Honour.
3 There were a number of issues raised by the appellant, counsel for
4 the appellant Mr. Cerkez, and there were a number of references made in
5 which counsel for the appellant informed you of the position and noted
6 that it was in their brief. As a result, we will try and address our
7 response in the following manner: There are a few issues that I will
8 address and expect to be finished before the time runs out today. Those
9 will be certain factual issues, one particular legal issue. I -- with
10 leave of the Court, I will use the time I have to deal with the counts
11 that the Pre-Appeal Judge had asked me whether there was any evidence on
12 the record, the two counts that -- count 33 and count 41, and lastly, I
13 will deal with, very briefly, the relationship between 7(3) and 7(1).
14 Then my colleague Ms. Kind will deal with a few of the fair trial issues,
15 the submission that they were unable to call Mr. Cerkez, the refusal to
16 grant a delay in the brief, and maybe one other issue. And then
17 Ms. Jarvis will speak for, I hope within 15 to 20 minutes, on
18 international armed conflict and one comment on the persecution, the mens
19 rea for persecution.
20 There were a number of factual submissions in relation to fact,
21 and the Court is fully aware of the standard required for review of
22 factual submissions. There were some submissions about based on the fact
23 that Mr. Cerkez had filed some information that he had to attend a
24 wedding, which was called off at the last minute by a request by
25 General Blaskic. There was some submissions as to how long it would take.
1 I'm not sure that any of that information is on the record, but even
2 accepting that it is, the standard that was set out in the Kunarac appeal
3 must apply.
4 The essential claim, the main claim that -- from which this
5 emanated was the issue in relation to AT, and I made submissions yesterday
6 in our brief, as I think relatively clear, I hope, on the issues of
7 corroboration and the evidence that corroborates, and I won't repeat
9 There was a comment about -- just one comment I want to respond to
10 is the fact that there was a -- the war diary had a reference on the
11 afternoon of the 15th and that the arrival of Mr. Cerkez was sometime
12 after that, and that was corroborated by the war diary.
13 First of all, in my respectful submission that certainly does not
14 undermine AT's evidence, with all the corroborative evidence of AT, the
15 fact that AT's evidence that he was at the meeting isn't reflected in the
16 war diary. AT's testimony, as you will recall, is actually that he
17 physically saw Cerkez after the meeting, that after he was told that there
18 was the military meeting, Kraljevic and Cerkez came to his office, he saw
19 him personally, that Cerkez asked for a particular weapon, a heavy
20 machine-gun, because he was facing some difficulty, some of his -- the HVO
21 was in Kruscica. And in the war diary there is corroborating evidence
22 that Mr. Cerkez is fighting in Kruscica.
23 The other aspect with respect to the war diary is that though the
24 war diary records the meeting that's set out at 5.30, the war diary does
25 not record a subsequent meeting between Cerkez and Blaskic. Now, if the
1 appellant is going to fault the war diary on the basis that it should
2 undermine AT's testimony, I note that the very diary he's relying on
3 doesn't in fact have a notation of a subsequent meeting at around 6.30
4 between Cerkez and Blaskic.
5 In relation to his comments regarding the evidence of AT, he
6 spends a fair amount of time indicating that this is the evidence,
7 essentially that the Trial Chamber then convicted, or this is at least the
8 evidence that was crucial to the Trial Chamber's determination. At
9 paragraph 688 of the judgement, the Trial Chamber sets out the particular
10 role of Mario Cerkez. It limits it to April 1993. It refers to Vitez,
11 Stari Vitez, Veceriska, and Ahmici, and then it goes through the evidence
12 that the Trial Chamber lists in this section of the judgement regarding
13 Mario Cerkez. At the end of this section, the Trial Chamber finds, in
14 paragraph 703, that there is clear evidence that Mario Cerkez participated
15 in the attacks on Vitez, Stari Vitez, and Veceriska.
16 Then it sets out the information upon which the Trial Chamber
17 relies, which is on the top of page 242. If you check those paragraphs
18 from beginning to end and including the evidence that they rely on, they
19 don't mention the testimony of Witness AT. They actually convict on the
20 basis of the documentary evidence -- I'm sorry. They do infer his
21 presence - my apologies - at the military meeting on the 15th of April,
22 1993. That's not correct. But they then refer to the documentary
23 evidence and the entries in the duty-officer's log. When you go back
24 through the preceding paragraphs, right through to the beginning of the
25 section, there is no reference to the testimony of Witness AT. What they
1 start with is the orders, and that's -- I'm going to just -- I'm referring
2 to the judgement now, so it's at page 236.
3 And they start with the orders that are listed there. There was
4 other evidence that was before them that supported their conclusions, and
5 there was other findings in the judgement that supported their
6 conclusions. Without taking you to it, at paragraph 595 is the
7 appointment of Cerkez as commander of the Vitez Brigade. At paragraph 596
8 there's testimony that his headquarters are in Vitez and that it's a
9 territorially based brigade with special purpose units that are within the
10 territorial zone and within the command structure, but that with respect
11 to the Vitezovi, he was not in a position to command Kraljevic.
12 There's reference at paragraph 599 regarding the mobilisation of
13 270 persons in three companies situated in various villages. And then at
14 paragraph 599, there's a reference -- there's a reference on page 198.
15 It's the end of paragraph 599. And this is in relation to the
16 organisation of the brigade. The second-last sentence says: "Most
17 significantly, a list of the 1st Battalion of the brigade, dated April the
18 14th, shows 270 personnel in three companies and situated in various
20 If I could ask the assistance of the clerk to put something on the
21 ELMO. This is exhibit at trial Z653. And if you're able to read it, Your
22 Honours, this is the document that's referred to in the second-last
23 paragraph of 599 of the judgement. And it says: "List of personnel from
24 the 1st Battalion." This is the 1st Battalion of the Vitez Brigade. "Per
25 village of deployment." And then if you look, you'll see such villages as
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 Nadioci, Santici, the 2nd Company has a number of villages, the 3rd
2 Company, Gornja Veceriska, Stari Vitez. This is a list just of the 1st
3 Battalion, not the other -- it was found by the Trial Chamber there were
4 three battalions and there was evidence which was disputed by counsel but
5 found by the Trial Chamber that there were three battalions. This one
6 sets out as of the 14th. This is the day before the Trial Chamber finds
7 that there's the meeting. This is the area that's in the responsibility
8 of just the 1st Battalion, not his complete area. And you'll see that it
9 says "Gornja Veceriska." You'll recall that on the 16th, Gornja
10 Veceriska, the testimony of witness is that the civilians left Donja
11 Veceriska to go to Gornja Veceriska, if I recall, and the Prosecution
12 relied on that for the pending attack.
13 There's a reference to Stari Vitez and there's a reference to
14 Nadioci, Santici. The purpose of putting this before you is to let you
15 see that the Court had relied on this and other evidence for the fact that
16 they were organised in areas and that these were some of the areas that
17 fall under their control and command. The Court also found that as a
18 territorially based - sorry - territorially based unit it was responsible
19 in Vitez and his headquarters were in the cultural centre in Vitez.
20 We then go to the orders which are relied upon by the Trial
21 Chamber, the ones that are at paragraph 689 at page 236. This lists a
22 number of areas more expensive than the places I pointed out on the
23 previous exhibit, because that was only the 1st Battalion. And if you
24 look through it, it's quite evident that the orders that are issued by
25 Colonel Blaskic to his direct subordinate - Mario Cerkez is the direct
1 subordinate of Blaskic - you'll see the reference throughout to the same
2 places: Donja Veceriska, which is listed many times; Ahmici; Stari Vitez;
3 Sivrino Selo; and Vrhovine.
4 I note one comment. If you notice on page 236, under (c) and
5 under (d), there's a reference to Sivrino Selo. You may be aware of the
6 fact that Witness AT testified that, when asked who was beside the
7 military police in Ahmici, the unit that was beside the military police
8 was the Vitez Brigade in Sivrino Selo. If you look at a map, you'll see
9 that Sivrino Selo is right beside Pirici, and as you know, and as Defence
10 counsel have indicated, Pirici was one of the villages, the small hamlets
11 around Ahmici. So you have literally side by side, right beside Pirici
12 and the next village is Sivrino Selo is the Vitez Brigade. They're not
13 down only in Kruscica as the appellant would submit.
14 If you then turn to page 237 of the judgement, this is a reference
15 to Mario Cerkez's report to Blaskic. It says: "The town is clean, and we
16 have about 50 Muslims in the cellar of the brigade police station." If I
17 could ask the clerk for one minute. I just want to put another matter on
18 the ELMO, please. I'll just ask you to recall the passage at the top of
19 page 237 of the judgement. "The town is clean." The town - the
20 Prosecution submission - is Vitez. That's what's referred to throughout
21 in these documents. The town is Vitez. That's where his headquarters is,
22 headquarters are.
23 And then it says: "We have about 50 Muslims in the cellar of the
24 brigade police station." If you look at the document on the screen, which
25 is Exhibit Z2158, you'll see that the brigade police station is on the
1 bottom right-hand side and it's 300 metres. You'll see the arrow to the
2 cinema, which was Mario Cerkez's office. And this is in the town of
4 Now, if you read that in conjunction with the report, this is a
5 report from Cerkez to Blaskic about the town being clean, that they have
6 50 Muslims in the cellar of the brigade police station, and then he says
7 the word "we." He then says: "Stari Vitez still remains a problem. What
8 shall we do?" The Prosecution's submission, the Trial Chamber was -- it
9 was quite reasonable for the Trial Chamber to rely on this evidence to
10 find that Mr. Cerkez was responsible and to reject the proposition that he
11 was simply reporting on other units and other members of the HVO to assist
12 Colonel Blaskic.
13 If you also look at the war diary, on the 16th of April, there are
14 26 entries with the name Mario or Mario C or Cerkez, and there are seven
15 entries on April 16th with the name of the Vitez Brigade. On the 17th,
16 there are 21 entries under the name Mario and seven under the name Vitez
17 Brigade. In the war diary on April 16th, at 11.20, there's a note of a
18 person by the name of Marin S. calling M. Cerkez for -- and then there's
19 some difficulty with the translation. It says: "Delivery of
20 ammunition/support for Donja Veceriska."
21 Also on April 16th, at 1.20 in the afternoon, once again there's a
22 call to Mario Cerkez, asking: Did the guests arrive in Donja and Gornja
23 Veceriska?" And then it says: "The guest arrived (of the Tvrtko
24 Brigade)." You'll recall at 1.30 in the morning indicating that the Vitez
25 Brigade was to operate with the Tvrtko Brigade. That and the other
1 evidence of the reporting of Cerkez of the activity in Donja Veceriska,
2 it's clear that he has responsibility for this area.
3 The Court find in paragraph 696 of the evidence of his control
4 over the troops and find that he has responsibility at paragraph 703.
5 These findings are not dependent on the testimony of Witness AT. In fact,
6 there's only one reference to his presence at the meeting on the 15th in
7 this passage, in this part of judgement which sets out the role of Mario
9 One thing to note about the common criminal plan, and Ms. Jarvis
10 may speak more on the common criminal plan and his shared intent for the
11 common criminal plan, but if you accept that he's found guilty under the
12 common criminal plan and you accept that he's at the meeting, which the
13 Trial Chamber did, then he's not -- his guilt should not have been limited
14 to those areas where his troops are directly participating and there can
15 be a demonstration of a direct link from him to the troops. The Court
16 finds that his contribution is in relation to Vitez, Stari Vitez, and
17 Donja Veceriska. If that's his contribution to a common criminal plan,
18 then he's responsible under the joint criminal enterprise liability for
19 the acts of others. Therefore, if he was in attendance at the meeting on
20 the 15th, and if the scope of the meeting covered Kraljevic, the military
21 police, his activities, if that was the scope of the meeting and the scope
22 of the shared common plan for persecution, then he actually got a benefit
23 from the Trial Chamber limiting his liability to his direct participation,
24 essentially finding him guilty under a common criminal plan for his direct
25 participation under 7(1).
1 JUDGE SCHOMBURG: Judge Guney has a question. Please,
2 Judge Guney.
3 MR. FARRELL: Yes, thank you.
4 JUDGE GUNEY: [Interpretation] Mr. Farrell, in the ground of
5 appeal number 4, Cerkez claimed that there was no criminal plan and that,
6 therefore, he did not share such intent. Would you mind telling us what
7 this criminal plan was, its scope, among other things, and it might also
8 be useful to ask you what the nature is of the individual criminal
9 liability, as pleaded for Cerkez, first or second category of joint
10 criminal enterprise or liability for ordering. So this is the framework
11 of my question. Thank you.
12 MR. FARRELL: Thank you. Just to go back to the charges. The
13 indictment refers, I think, to be fair, to the -- well, first of all, they
14 are charged together. They are charged as acting together, and therefore,
15 acting in concert. And in that respect, the Prosecution's submission is
16 that he's charged with a joint criminal enterprise and I made submissions
17 on that yesterday.
18 With respect to the nature of Mr. Cerkez's involvement in the
19 joint criminal enterprise, my recollection, and I'll check if I may, this
20 evening, my recollection is that the extent of the original indictment and
21 the extent of the statement of facts with the original indictment and the
22 pre-trial brief, limit the scope of his joint criminal enterprise to the
23 Vitez municipality. That's my recollection, and I'll confirm that. And
24 that, therefore, the persons who would be the co-perpetrators, or the
25 members of the enterprise, would in fact be those persons in the
1 municipality, those at the highest level of the HZ HB, HR HB, and the HVO
2 and their leaders.
3 The other thing to note is that in paragraph 26 of the indictment,
4 and I bring it to your attention, in paragraph 26, the wording that I
5 relied upon about setting in motion and the extension of what would be JCE
6 3 is in relation to Dario Kordic. The reference to Mario Cerkez appears
7 to be in paragraph 27, in which he implemented by military means the
8 campaign and committed and aided and abetted the persecution campaign.
9 The next sentence indicates that he had reason to know and that he
10 failed to take the necessary and reasonable measures to prevent such acts
11 or to punish the perpetrators. This appears to be somewhat different than
12 paragraph 26, to be frank, in terms of the scope. I will check the
13 pre-trial brief and the statement of facts to inform you of the extent of
14 the JCE in terms of JCE 1 and JCE 3, though the actual language used in
15 the pre-trial brief for both accused referred to the extended form of
16 liability, JCE 3, well, what we now call JCE 3. It talked about the
17 liability of those involved in a common criminal plan. So the language
18 used in the pre-trial brief of the extended nature of the plan.
19 I'm sorry. There was a second aspect to your question,
20 Judge Guney. I'm sorry. I apologise. I've forgotten it.
21 JUDGE GUNEY: [Interpretation] Indeed. It had to do with the
22 liability for ordering as well.
23 MR. FARRELL: Oh, I'm sorry. That's correct.
24 He was charged with ordering, both 7(1) ordering and of course
25 7(3) liability, and that ordering would include the acts of his
1 subordinates in the Vitez Brigade or those in his area of responsibility.
2 The Trial Chamber, at paragraph 836, finds him guilty as a co-perpetrator
3 in the crimes. And it appears that they found him as a co-perpetrator in
4 those crimes with those members of either the Vitez Brigade or those
5 members in the Vitez municipality. And in light of their findings of his
6 attendance at the meeting, I would interpret that to be localised to the
7 Vitez municipality as a co-perpetrator.
8 If I can ask your indulgence for one minute, Judge Guney.
9 [Prosecution counsel confer]
10 MR. FARRELL: I'm sorry, Judge Guney. I was going to see whether
11 I had any information as to what was set out in the pre-trial brief as
12 well, but with your indulgence, I'll respond to that in the morning.
13 That's in relation to --
14 JUDGE SCHOMBURG: If I just may add, also for tomorrow, that you
15 could please be prepared to answer the question not only about the plan
16 but also the scope of the plan and Mr. Cerkez's knowledge of the plan in
17 detail, in particular, whether or whether not this plan also included acts
18 of inhumane treatment, inhumane acts, and whether it included the alleged
19 acts in relation to deprivation of liberty under Articles 2 and 5.
20 And finally, it would be appreciated if you could clarify that
21 Mr. Cerkez received, if so, such a plan at the second meeting we discussed
22 beforehand. And it seems to be, in fact, confusing. You quoted yourself,
23 paragraph 27 of the indictment, where it reads "aiding and abetting," and
24 then he's found guilty as a co-perpetrator. So I would appreciate if you
25 could elaborate a little bit more on the criminal liability, whether it's
1 now pure aiding and abetting, whether it's pure co-perpetratorship, or
2 whether it's the first or the third category of joint criminal
3 enterprise. I think both indictment, the briefs, and also in part the
4 judgement, is not totally clear on these points.
5 MR. FARRELL: Thank you for that, Your Honour.
6 If I may move on to answering Your Honour's -- or at least the
7 questions raised by the Pre-Trial Judge in terms of whether there's any
8 evidence for count 33, which is the hostage-taking count, or count 41,
9 which is the wanton destruction.
10 Just before I approach -- before I address these issues, there was
11 a question made to Ms. Brady, I think by Your Honour Judge Schomburg,
12 about the extent to which you can rely on factual findings in the brief,
13 essentially, and how do you determine whether or not there's been a
14 factual finding that would be sufficient to warrant a conclusion that
15 there's a finding to substantiate a conviction.
16 The first step, obviously, is that -- the first step is where
17 they've made clear factual findings. The second would be whether or not
18 there are any other findings made by the Trial Chamber that would support
19 the conclusions. Those would be the circumstances where there are
20 findings of fact made, evidence accepted by the Trial Chamber, but it may
21 be somewhere else in the brief and not referred specifically with respect
22 to the count.
23 The steps that the Court would have to take would be, and the
24 Prosecution would submit, would be that where there are findings of fact
25 in the judgement, in those circumstances where there are findings of fact
1 by the Trial Chamber and where the application of the law, as accepted by
2 the Trial Chamber, to those facts support their conclusions, then you have
3 all the components that are in the judgement and that are not disputable
4 and that would result in the conviction. The difficulty arises where
5 there's -- there has to be a determination as to whether or not there have
6 been findings of fact. And it would only be in those circumstances where,
7 on the basis of the judgement, one could infer that the Court actually
8 accepted the evidence as part of their facts, where you can infer from the
9 subsequent findings later in the judgement, because, as we know, in this
10 judgement there's often a recitation of the evidence and then a finding at
11 the end. In those circumstances, I think it would -- the Court would have
12 to clearly look at the judgement, determine whether or not the facts
13 recited are the ones that are ultimately found and relied on, and in many
14 of the instances here, the Trial Chamber actually indicated that it
15 rejected the Defence case. So the inference left is that they accepted
16 the Prosecution evidence which was recited and that's the basis of their
18 Other than that, I think we'd run into some difficulty if we
19 attempted to simply refer to the evidence, and I don't think that this
20 Court is in a position to actually decide based on the evidence. That
21 would be a de novo function which obviously this Court has already
22 indicated it's not its function to do.
23 JUDGE SCHOMBURG: Sorry to interrupt you at this point in time.
24 MR. FARRELL: I'm sorry.
25 JUDGE SCHOMBURG: I think we all fully understand the way the
1 judgement is written, and we have no common pattern of conduct how to
2 write a judgement, and we have to accept the judgement as it is and to
3 find whether or not it suffices. However, when I already asked you, as a
4 follow-up question to Judge Guney's question, could you please be so kind
5 and also tomorrow explain where in the judgement one can find certain
6 elements of specific intent when it comes to persecutions. Where do we
7 find these elements, and how were these elements pleaded during trial? I
8 think this would be of assistance for us.
9 MR. FARRELL: We will endeavour to assist.
10 Regarding count 33, then, on the basis of the understanding of the
11 judgement and its findings, the elements are set out at paragraph 314, and
12 the essence of the element is that when these -- it's for the detainees,
13 when they're detained or they're taken as detainees, there's a threat to
14 subject the detainees in this case, the language in paragraph 343
15 says"threatens to subject civilians who are unlawfully detained to
16 inhumane treatment as the means of achieving the fulfilment of a
18 Now, the Trial Chamber has found that there was hostages --
19 sorry - a conviction for hostage-taking. And the evidence is found at
20 paragraph 784. The question, if I understand it correctly from the
21 Pre-Appeal Judge, was to determine whether there was any evidence to
22 substantiate the conviction for hostage-taking for prisoners in the
23 detention centres beyond the Vitez cinema.
24 If you -- if I may take you to paragraph 784, subparagraph (b),
25 the evidence relied upon was that Mr. Cerkez had asked a detainee, a
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 prominent Muslim doctor, Mujezinovic, to call upon the ABiH to stop
2 attacking. Now, this commission that was to be set up to call upon the
3 ABiH to stop attacking was in the Vitez cinema, but in the Prosecution's
4 submission, this relates to all the detainees in all the detention centres
5 in Vitez. The sentence goes on and says: "That there will be a call upon
6 the ABiH to stop attacking or all prisoners held in Vitez would be
7 killed." Not simply the prisoners that are detained in the Vitez cinema
8 where this takes place.
9 If I may take you over to paragraph 788, subparagraph (viii).
10 JUDGE SCHOMBURG: I understand your conclusion, and it will be for
11 the Chamber to decide whether this suffices in relation to the veterinary
12 station, the SDK offices, and the Chess Club. However, is it your
13 submission that it's enough to say detainees, without specific elaboration
14 on the question whether these detainees were military persons or
16 MR. FARRELL: In light of the fact that it's a threat to treat
17 them inhumanely, the threat to kill would obviously satisfy that
18 regardless, I would submit, of the status.
19 At paragraph 788, subparagraph (viii), there's further evidence
20 that, according to Dr. Mujezinovic, Mario Cerkez had told him that the
21 ABiH had broken through the front line at Dubravica. Once again, the
22 witness had to call the 3rd Corps commander, the 3rd Corps commander is
23 the ABiH army, and say that if the Muslim advance continued on Vitez, he
24 would order the killing of the prisoners. The witness, Dr. Mujezinovic,
25 did so, did phone the 3rd Corps of the ABiH army, and the commander agreed
1 to halt the advance. Now, this is corroborative evidence, if it may, or
2 additional evidence of a separate incident in which the threat was for all
3 prisoners, and it's submitted that the inference is clear that it comes
4 from -- well, it comes from Mario Cerkez and the inference is clear it's
5 those prisoners that he is able to kill.
6 Those are the two findings of fact I could refer you to that may,
7 if the Court so decides, substantiate the charge of count 33, hostages.
8 JUDGE SCHOMBURG: In addition, 788.
9 MR. FARRELL: Correct. Detention of Muslims. Yes. Thank you.
10 JUDGE SCHOMBURG: This was already clarified in the past, but what
11 about 31? I think it was conceded that there were made no factual
12 findings relating to the involvement of forces under Mr. Cerkez's
13 responsibility in Stari Vitez and Donja Veceriska.
14 MR. FARRELL: That's correct.
15 JUDGE SCHOMBURG: Okay. Thank you. It is clarified.
16 MR. FARRELL: The other one that the Court had asked was count 41,
17 for Mr. Cerkez, wanton destruction, and the question, as I recall, was in
18 relation to Vitez and Stari Vitez. Now, the judgement sets out, at
19 paragraph 8071, for this count of wanton destruction, Vitez and Stari
20 Vitez, 807, sub(i) and sub(ii). I think it's fairly clear that 807 sub(i)
21 refers to a period of time in October 1992 and early 1993, but doesn't
22 specifically refer to April 1993, which is the period of time for which
23 Mr. Cerkez was convicted.
24 In relation to Stari Vitez, which is the next subparagraph, once
25 again, there does not appear, on the face of it, to be specific factual
1 findings in relation to the HVO, Vitez Brigade, and Stari Vitez in April
3 There is other evidence on the record that I want to bring to your
4 attention, which I leave it to the Court to determine whether it's
5 sufficient to warrant the conviction, but I'll inform you of what evidence
6 is on the record in this regard. For Vitez, for wanton destruction, there
7 is evidence in the unlawful attack section of the judgement where, though
8 referring to the unlawful attack section, they actually refer to the
9 results of the unlawful attack, which, in the Prosecution's submission,
10 there are some factual findings regarding the destruction.
11 In paragraph 644, there is reference to Colonel Watters'
12 testimony. Now, before I refer to it, Judge Schomburg, you asked a
13 question of my learned friend about whether Vitez and Stari Vitez were
14 included in the same. I agree with the Defence counsel, Vitez includes
15 Stari Vitez as a geographical area. I think the reason that -- in the
16 indictment was because they at one point in time became separate
17 communities, in light of the fact that Stari Vitez was controlled by the
18 ABiH and Vitez was under the HVO control. And here, when they're
19 referring to it, they don't distinguish specifically it in the evidence,
20 though they talk about the Muslim part of Vitez.
21 In paragraph 643, there is the evidence of Colonel Watters that he
22 had received reports of shelling and firing on Muslim areas of Kruscica
23 and Vitez and that, based on his observations, he came to the opinion that
24 most of the destruction and casualties were in the Muslim area of the
1 There also is reference to Exhibit 2007, support of this in
2 footnote 1247. Footnote 1247 lists Colonel Watters' testimony and the
3 corroborative evidence of smoke and fires and bodies lying on the far side
4 of Vitez, also that there are a number of bodies in Stari Vitez.
5 The only other evidence that I could locate, Your Honours, is that
6 Witness TW21 from the Blaskic trial is referred to in footnote 1251, and
7 the testimony, I'm being very specific here, because I'm trying to
8 identify the specific - the testimony referred to from 4471 to 4474
9 relates to the sexual assault and the jewellery. She also testified to a
10 number of Muslim houses burning in Vitez. But that testimony of the
11 Muslim houses burning in Vitez is two pages earlier. It's at 4476.
12 Sorry. Two pages later. Those are the three pieces of evidence that I
13 could locate that appears to have been accepted by the Trial Chamber, in
14 which there were factual findings and evidence relied upon in relation to
15 destruction in Vitez and/or Stari Vitez.
16 There may be one other question that arises from this, which is --
17 I think the Court hasn't asked about the link evidence of the HVO being in
18 Vitez, or Stari Vitez, but in light of the fact that Mr. Kovacic has
19 indicated that, I would note that the Trial Chamber accepted the testimony
20 in paragraph 644 of Mr. Breljas that the Vitez Brigade took part in the
21 attack in Stari Vitez, and there was also evidence which was accepted by
22 the Court in relation to the detention crimes that some of the witnesses
23 who testified and their evidence was accepted in relation to the detention
24 crimes, some of those witnesses identified Vitez Brigade members as the
25 HVO members who arrested them in Vitez on April 16th. That would be
1 particularly witness Fuad Zeko, who testified that there were two members
2 who arrested him on the 16th of April, at 6.00 in the morning. One of the
3 members -- one of the persons who arrested him is named Krunoslav Bonic.
4 And the linkage that is found is that the Trial Chamber actually accepted
5 a list of exhibits setting out all the members of the brigade. That's
6 Exhibit Z1337.1. It's referred to in footnote 1097. They also accepted,
7 in footnote 1114, a file put forward by the Prosecution as Exhibit
8 Z2813.2, both which indicate that this individual who appeared at the
9 house of Mr. Zeko and arrested him and took him to the veterinarian
10 station and detained him, this was a member of the Vitez Brigade.
11 There's also testimony of Witness G, which was testimony in closed
12 session, that this person was taken to the cultural centre on April 19th.
13 The Trial Chamber relied on the testimony of this witness in paragraph
14 788, subparagraph 2 of the judgement, related to his evidence regarding
15 his detention in the cinema. And he identifies an individual by the name
16 of Boro Jozic in that -- in those passages, and once again, the list that
17 the Trial Chamber refers to in footnote 1097, Exhibit Z1337.1, lists
18 Mr. Boro Jozic as a member of the command of the Viteska Brigade.
19 That's the evidence that I was able to identify for the purposes
20 of Vitez, Stari Vitez, on the 16th to the 19th of April.
21 In relation to the question by the Pre-Trial Judge of the
22 relationship between 7(1) and 7(3) and the submission by my learned friend
23 in that regard, I note that the jurisprudence starting with Blaskic, if I
24 recall - I don't have the passage; I apologise - has attempted to deal
25 with this overlap between 7(1) and 7(3). You'll recall that in the Krstic
1 trial judgement, the Trial Chamber found that though the elements were
2 met, it exercised its discretion not to enter a conviction. In the
3 Krnojelac trial, the Trial Chamber exercised the same discretion and
4 indicated that the conduct or criminality of the accused was better
5 characterised under 7(1).
6 If the criminal conduct that -- if -- I'm sorry. If 7(1) and 7(3)
7 are based on the exact same criminal conduct, there may technically be a
8 conviction in that there was both the order to commit the crime and then
9 the failure to punish or even prevent or punish afterwards. But, with
10 respect to, if it's the same conduct, it, at least at first blush, it
11 doesn't appear to make sense that you would convict him twice for ordering
12 a crime and then convict him again for failing to prevent his own order.
13 And in that regard, I think that if there's direct involvement by the
14 commander under 7(1), his conduct would be -- though technically he would
15 be found guilty on both, the conviction would be better characterised as
16 7(1), if that's the circumstance, in my respectful submission.
17 Those, essentially, are the matters I wanted to submit to the
18 Court in response to the comments by my friend, with the exception of one.
19 There was a submission made, if I recall, on the forging of a particular
20 document. I think it's 692, sub(3), if I recall.
21 I'll make one quick submission. This matter, as I understand, was
22 raised before the Trial Chamber, and this matter was addressed. The
23 document fits in a line of documents which the Court accepted as
24 demonstrating its consistency. The fact that it's a copy isn't
25 determinative of admissibility or not. Obviously there's a number of
1 document, most documents that we get from state parties are copies. The
2 question has to be whether or not it's a document that meets admissibility
3 requirements under 89(C). The fact that a party objects in and of itself
4 doesn't make a document inadmissible. The court still has a make a
5 determination. If the logic is extended that if a party objects then the
6 other party has to demonstrate its authenticity. Mr. Cerkez is relying on
7 the war diary. Mr. Kordic has objected to it. So I guess Mr. Cerkez
8 would have to actually demonstrate the authenticity of the war diary to
9 rely on it, because Mr. Cerkez has objected to it. I don't think that
10 would be the approach that the Trial Chamber would have taken and they
11 would have looked at the document in light of all the other documents and
12 determined whether or not it was accepted.
13 Other than that and the questions which I hope to be in a position
14 to answer tomorrow morning by Your Honour Judge Guney and Your Honour
15 Judge Schomburg, those are the submissions of the Prosecution on the
16 factual errors, the counts that the Court had asked us on, and the
17 position on 7(1) and 7(3). We're either in a -- well, it may not make a
18 lot of sense to continue at this time, but I'm in your hands.
19 JUDGE SCHOMBURG: I think, in fact, it makes not much sense to
20 continue with another chapter for today, so we will continue tomorrow at
21 9.00 sharp, and hope that we can conclude, as scheduled, tomorrow. The
22 trial stays adjourned.
23 --- Whereupon the hearing adjourned at 6.54 p.m.,
24 to be reconvened on Wednesday, the 19th day of May
25 2004, at 9.00 a.m.