1 Thursday, 21 August 2008
2 [Appeals Hearing]
3 [Open session]
4 [The appellant entered court]
5 --- Upon commencing at 8.33 a.m.
6 JUDGE POCAR: Good morning, everybody. Registrar, may I ask you
7 to call the case, please.
8 THE REGISTRAR: Good morning, Your Honours. Good morning,
9 everyone in and around the courtroom. This is IT-00-39-A, the Prosecutor
10 versus Momcilo Krajisnik.
11 JUDGE POCAR: Thank you. May I ask Mr. Krajisnik if he can hear
12 me and follow the proceedings through the translation.
13 MR. KRAJISNIK: [Interpretation] Yes. Thank you, Your Honour.
14 JUDGE POCAR: Thank you. I call for the appearances. The
16 MR. KREMER: Good morning, Mr. President, members of the Court.
17 Peter Kremer appearing with Barbara Goy, Katharina Margetts and
18 Lourdes Galicia
19 this afternoon. Thank you.
20 JUDGE POCAR: [Microphone not activated] Thank you. Now counsel
21 for Mr. Krajisnik in the matter of --
22 MR. A. DERSHOWITZ: [Microphone not activated] Alan Dershowitz
23 and Nathan Dershowitz appearing on the issue of --
24 THE INTERPRETER: Microphone, please.
25 JUDGE POCAR: Thank you. The amicus curiae.
1 MR. NICHOLLS: Colin Nicholls appearing with Mr. John Jones.
2 JUDGE POCAR: Thank you. Now, this is the appeals hearing in the
3 case of the Prosecutor versus Momcilo Krajisnik. At the outset I will
4 briefly summarise the appeals which are pending before the
5 Appeals Chamber and the manner in which we will proceed today.
6 The appeal deals with crimes committed in 35 municipalities in
7 the Bosnian Serb republic between 1st July 1991 and 30 December 1992, and
8 with the role allegedly played in these events by Momcilo Krajisnik who
9 allegedly held several high-ranking positions within the SDS Main Board
10 and was president of the Bosnian Serb Assembly at the time.
11 Both Krajisnik and the Prosecutor have appealed the trial
12 judgement rendered on 27 September 2006 by Trial Chamber I composed of
13 Judge Orie presiding and Judges Canivell and Hanoteau. In addition,
14 amicus curiae, who was appointed on 8 June 2007 to assist the
15 Appeals Chamber by arguing in favour of Krajisnik's interests has filed
16 an appeal against the trial judgement. The Trial Chamber found Krajisnik
17 guilty pursuant to Article 7(1) of the statute of persecution as a crime
18 against humanity, count 3; extermination as a crime against humanity,
19 count 4; murder as a crime against humanity, count 5; deportation as a
20 crime against humanity, count 7; and inhumane acts, forced transfer as a
21 crime against humanity, count 8.
22 It found him not guilty of the crime of genocide, count 1;
23 complicity in genocide, count 2; and murder as a violation of the laws or
24 customs of war, count 6. The Trial Chamber sentenced Momcilo Krajisnik
25 to a single sentence of 27 years of imprisonment.
1 The Trial Chamber in reaching its verdict and sentence found that
2 Krajisnik participated in a joint criminal enterprise whose objective was
3 to ethnically recompose the territories under the control of the Bosnian
4 Serb republic by drastically reducing the proportion of Bosnian Muslim
5 and Bosnian Croats through the commission of various crimes. Krajisnik,
6 who chose and was authorised to represent himself at the appeals stage,
7 filed his notice of appeal on 12 February 2007. On 28 February 2008, the
8 Appeals Chamber authorised Krajisnik to retain the services of attorney
9 Alan Dershowitz to prepare a supplementary brief on his behalf on the
10 subject of joint criminal enterprise which was filed on 7 April 2008.
11 The Prosecution filed its response brief on 12 March 2008 and
12 responded to the supplementary brief of Mr. Dershowitz on 25 April 2008.
13 The registrar received Krajisnik's reply on 16 May 2008.
14 Let me now briefly summarise Krajisnik's grounds of appeal. In
15 his appeal, Krajisnik claims that his right to a fair trial was infringed
16 by the Trial Chamber and by the Registry, that he was not represented by
17 competent counsel at trial, and that the Trial Chamber was biased. He
18 raises numerous challenges to the factual findings of the Trial Chamber
19 denying in particular that he possessed and abused de facto executive
20 power and authority and that he was informed about the committed crimes
21 but did not investigate or punish them.
22 He further submits that the Trial Chamber erred in finding that
23 he was a member of a joint criminal enterprise and that he supported and
24 advocated the commission of crimes against Muslims and Croats. He also
25 challenges the Trial Chamber's reliance on certain testimonies and its
1 findings on the creation, objectives and functioning of the Bosnian Serb
3 The supplementary brief of Mr. Dershowitz raises three grounds of
4 appeal, arguing that joint criminal enterprise is not a legitimate theory
5 of liability, that the Trial Chamber erred in not requiring substantial
6 contribution of Krajisnik to the joint criminal enterprise, and that
7 joint criminal enterprise as applied to Krajisnik is an inconsistent and
8 incoherent theory of liability.
9 I will now turn to the Prosecution's appeal. The Prosecution
10 filed its notice of appeal on 26 October 2006 and its appeal brief on 27
11 November 2006. Krajisnik and amicus curiae both responded on 12 February
12 2007. Prosecution replied to Krajisnik's response on 27 February 2007
13 and to amicus curiae's response on 22nd February 2007.
14 The Prosecution raises a single ground of appeal arguing that the
15 Trial Chamber abused its discretion by imposing a manifestly inadequate
16 sentence. It requests the original sentence be substituted by a sentence
17 of life imprisonment.
18 Finally, I will briefly summarise the amicus curiae's grounds of
19 appeal. Amicus curiae filed a notice of appeal on 8 June 2007 and an
20 appeal brief on 31 August 2007
21 2007 and amicus curiae replied on 26 September 2007.
22 Amicus curiae raises the following grounds of appeal. I will
23 just list them. Krajisnik was not accorded a fair trial, the
24 Trial Chamber failed to provide a reasoned opinion, the Trial Chamber's
25 conclusions on joint criminal enterprise were erroneous in law and in
1 fact, the Trial Chamber erred in law and in fact in its findings on the
2 crimes of deportation and of forcible transfer, the Trial Chamber erred
3 in fact in its assessment of Krajisnik's hierarchical position, the
4 Trial Chamber erred in fact in concluding that Krajisnik possessed the
5 requisite mens rea to be convicted, the Trial Chamber erred in law by
6 allowing the Prosecution to breach Rule 90(h)(2) with impunity, the
7 Trial Chamber's approach to Krajisnik's evidence was wholly unreasonable,
8 the Trial Chamber impermissibly accumulated convictions, and finally,
9 that the sentence of 27 years imposed by the Trial Chamber is excessive
10 and disproportionate.
11 During this appeals hearing, the parties may argue the grounds of
12 appeal in the order they consider most suitable for their presentation.
13 However, I would urge the parties not just to repeat verbatim or
14 summarise extensively what is in the briefs as the Court is aware of the
15 briefs' contents and has studied them. I also wish to note in the
16 schedule order of 18 July 2008
17 Prosecution to address specific issues during this hearing, issues that
18 do not have to be restated here now. This invitation is made, I want to
19 stress, without prejudice to any matter the parties or the
20 Appeals Chamber may wish to raise and in no way constitutes an expression
21 of an opinion on the merits of the appeals.
22 I would now like to recall the criteria applicable to errors of
23 fact in law alleged on appeal. The appeal is not a trial de novo and the
24 appellants must not merely repeat the case from the trial level. Rather,
25 in accordance with Article 25 of the Statute, the appellants must limit
1 their arguments to alleged errors of law which invalidate the decision or
2 alleged errors of fact occasioning a miscarriage of justice.
3 Additionally, it should be recalled that the appellants have an
4 obligation to provide precise references to materials supporting their
5 arguments on appeal.
6 This hearing will proceed according to the Scheduling Order
7 issued on 18 July 2008
8 their submissions this morning for one hour and 30 minutes, following 15
9 minutes pause they will continue their submission for 30 minutes.
10 Afterwards, the Prosecution will present its response for one hour and
11 after a pause continue its response for another hour. Mr. Krajisnik will
12 then reply for 30 minutes. Then we will move to the lunch pause, and in
13 afternoon we will continue according to the schedule. I will not repeat
14 all the schedule as stated in the Scheduling Order.
15 It will be most helpful to the Appeals Chamber if the parties
16 could present their submissions in a precise and clear manner. I wish to
17 remind the parties that the Judges may interrupt them at any time to ask
18 questions or they may prefer to ask questions following each party's
20 At this point, I would like that we go into private session for a
21 few minutes.
22 [Private session]
12 [Open session]
13 THE REGISTRAR: Your Honours, we're back in open session.
14 JUDGE POCAR: Having said this about the manner in which we will
15 proceed today, I would like now to invite the appellant to present
16 submissions in support of his appeal. Please, Mr. Krajisnik, you have
17 the floor.
18 MR. KRAJISNIK: [Interpretation] Good morning, Your Honours. Good
19 morning to everyone present in the courtroom.
20 As you are aware, I testified before this court for 40 days,
21 because at the time when I arrived to The Hague Tribunal and to the
22 Detention Unit I was convinced that I was not guilty, and I never
23 questioned my intention to be subjected to testimony and to
24 cross-examination on any issue arising out of the indictment.
25 You received some material that I drew in goodwill. It is in
1 English, and it's a chart, as I called it, references. I wanted to help
2 you in understanding the case, and I wanted to respond in kind to the
3 very proper conduct of the Prosecution lately. Even though they are my
4 opponents they provided a lot of documents to me which I attached as
6 I would be happy to answer any of your questions because I think
7 that this is how we will reach the truth in the best possible way.
8 As I have said, I testified before this Court deeply convinced
9 that I would prove the truth. Unfortunately, the Trial Chamber did not
10 believe that I spoke the truth and the judgement reflected that.
11 You will see from all of the documents, and I'm telling you that
12 everything that I said during my testimony was reinforced in my appeals
13 brief and corroborated by various exhibits which prove that what I said
14 was how it was. Thanks to you and God I was given an opportunity to
15 represent myself, and I would like to thank the Appeals Chamber for that
16 even though it's difficult to represent oneself. It is a hard task, but
17 as a result of that I managed to understand well the trial judgement so
18 as to be able to analyse it and link it. Once you link all of the
19 events, you come to a conclusion which is different than what the trial
20 judgement says.
21 You will see in my appeals brief that I used a method to respond
22 to each finding in the judgement then show why that finding is not true.
23 So I urge you -- I urge you -- or, rather, I will be happy if you put any
24 questions to me.
25 I am accused here of the gravest crimes that exist. Listening to
1 you just now, I was horrified. It was so difficult to listen to what you
2 said because these crimes are so grave and much evil resulted from them.
3 It is my personal opinion that from the very beginning of my political
4 work I was committed to preserving peace in Bosnia and Herzegovina
5 reaching an acceptable political solution.
6 Since you gave me an opening, I won't spend much time speaking
7 about the appeal. I have to tell you about the sequence of events which
8 clearly indicate that I could not have been and was not a member of any
9 JCE. You have a lot of evidence showing that in January 1991 we had a
10 session of the Assembly of Bosnia and Herzegovina, whose president I was,
11 where we decided to come up with a platform about what the future of
12 Bosnia and Herzegovina should be, because we could see that Yugoslavia
13 was about to fall apart. It was decided at that time that Bosnia needs
14 to be decentralised and reorganised to ensure that it had as few
15 responsibilities as possible at the level of Yugoslavia.
16 Mr. Izetbegovic, who was the president of Presidency, was greeted with
17 applause. I was proud because I saw that we would preserve the peace.
18 Let me digress. My entire family and my ancestors always warned
19 that Bosnia
20 remembered for many years afterwards and that everything needed to be
21 done to prevent any conflict from arising. This is why we were happy
22 that we had found this solution.
23 The next solution came about one month afterwards. For different
24 unforeseen circumstances the other side came up with a declaration on
25 sovereignty, presenting a completely different solution whereby Bosnia
1 was to secede and to no longer remain part of Yugoslavia. That was a
2 shock to us, and we, the Serbian side, vetoed this document. The
3 constitution of Bosnia and Herzegovina provided for this possibility to
4 veto a proposal if it went against vital national interests. So we said
5 let's put it to the council and discuss it there and then find a
6 solution. One month later, as we discussed it at the council, all three
7 sides accepted the proposal and one month later, one of the sides came up
8 with this new solution that the declaration would be accepted if the
9 Serbian side agreed to it. And then in April, there was regionalisation.
10 It was a political response. It was a political response of the Serbian
11 side to unconstitutional behaviour of the opposing side.
12 Then negotiations started and in July there was a historical
13 agreement, as we called it, of the two largest sides, the Muslim side and
14 the Serbian side. It was a time of celebration. People were hugging
15 each other. They were happy that there would be no war.
16 You will find an exhibit among the documents, KU81, reflecting
17 the event where I addressed the public saying that there would be no war,
18 that we have to nurture good neighbour relations. And all we wanted was
19 to preserve the peace.
20 The agreement was supposed to be signed and implemented. It
21 wasn't in the interest of the Muslim side. No. Somebody suggested to
22 them, and they gave up on that agreement during the very TV show where it
23 was about to be proclaimed. And then in September there was another
24 Assembly session that I presided over, and Mr. Izetbegovic took the floor
25 and he said that we would talk to each other for 100 years if necessary
1 only to preserve the peace. Nobody would threaten anybody else. And
2 once again everybody was happy.
3 Now we are covering the time period from my indictment.
4 Everybody was saying, sure, we will discuss. We will talk among
5 ourselves only to preserve the peace. And then in October once again
6 they tried to push the declaration, and then Serbian side vetoed it. I
7 concluded the session Assembly and then after that they voted on this
8 platform on the declaration of independence. This is when it all went
10 Then they said the Serbian Democratic Party, and that was the
11 majority party representing the Serbian people, they said, "You don't
12 have the mandate to represent all Serbs. There are other people voicing
13 other concerns." And what did we say then? We say we would interview
14 the people. We announced a referendum, and we said that the Serbs would
15 express their will as was provided in the constitution.
16 In order to know who gave what answers, the ballots containing
17 these questions were of different colour reflecting different ethnicity.
18 What happened afterwards? A warning was issued by the Serbian side to
19 the Muslim side to go back to the constitutionally provided order because
20 that was the greatest conflict between two leading sides, the Serbian
21 side and the Muslim side, even though the Croatian side was a completely
22 equal partner.
23 After the referendum, the people decided that Bosnia
24 remain in Yugoslavia
25 of Muslims and Croats. It was a negligible percentage.
1 Following that, all of the regions pretended to be in existence
2 where in fact they were not, and there came a request that we should
3 verify the regions. And we did not verify them all the way up until
4 somebody asked the Serbian side to recognise the independent Bosnia
7 could not be changed without the Serbian side which had one-third of the
8 votes, and they needed a two-third majority. Then they out-voted the
9 Serbian representatives in the parliament in order to accept this
11 I would like to draw your attention to the fact that the Serbian
12 side said, "We, our deputies, will form Serbian Assembly, and their only
13 task will be to start operating when the vital interests of the Serbian
14 people are in danger." That was the main task of the Serbian Assembly.
15 The Serbian deputies left the parliament of Bosnia and
17 and Herzegovina Assembly, and I worked until the war erupted leading both
18 Assemblies. I did not want the war to begin. People used to say, "If he
19 leaves," meaning me, "the war would begin." There was a psychological
20 kind of war.
21 Then the war began or, rather, in the beginning of 1992, the
22 Muslim side said that they would start on the path of independence and
23 that there would be no going back. At that time, the republic of Serbian
24 people from Bosnia and Herzegovina was established, and the negotiations
25 had already started on the new organisation of Bosnia and Herzegovina
1 What happened then? Mr. Cutileiro got involved, and they came up with a
3 I have to reiterate that once we were given this solution we were
4 all very happy. You have evidence indicating that on the 25th of March,
5 at the -- or, rather, just before the conference on Bosnia and
7 We did not want to participate in negotiations. We did not want this.
8 And the whole system crashed.
9 On the 27th of March, we held the Assembly, and we voted on the
10 constitution, saying that there would be a solution there for the entire
11 Bosnia and Herzegovina.
12 On the 26th of January, we held a session of the Assembly, and
13 there were many very reasonable deputies there, and I used my influence
14 over them to force them to go into the joint Assembly of Bosnia and
16 agreement been reached the Serbs would have recognised independent Bosnia
17 and Herzegovina
18 was whether the Serbs would rule themselves or somebody else would rule
20 And why were the Serbs afraid? We asked the Muslims to remain in
22 We were afraid. We did not want to be a minority. And they said, "We
23 cannot remain in Yugoslavia
24 in Bosnia
25 a territorial continuity, and they said, "You cannot have territorial
1 continuity but you can exchange lands with other sides and then you would
2 gain the territory you wanted, and you would have your own unit where you
3 would have absolute or relative majority." And then everything was
4 clear, all the way up until the beginning of the war when the referendum
5 of independence was held. It was then that the incident in Sarajevo
6 place where the groom's father was killed in Sarajevo and demonstrations
7 broke out and the war erupted in Sarajevo.
8 There were only two things or, rather, three things that I did
9 during the war. I was president of the parliament and I was a
10 negotiator, and I was never a member of any Presidency. I said here
11 hundreds of times that I was not a member of Presidency. They said I
12 wasn't a de jure member but they said that I was a de facto one. I
13 wasn't that either. There is not a single document saying that
14 Momcilo Krajisnik was member of the Presidency. Nor did I have any
15 competencies within the Presidency. And when this happened, when the war
16 erupted, the shells were falling and exploding all over Sarajevo, and I
17 went from Ilidza to Sarajevo
18 political solution for Sarajevo
19 continue discussing. And we agreed on finding the solution. I went back
20 to Zabrdje. I did not have any further contacts with him, and then this
21 was abused once again, saying that Momcilo Krajisnik wanted Sarajevo
22 be divided.
23 So once again I was not a member of any JCE. I did everything in
24 my power to find a political solution, and five years later, I
25 participated in Dayton
1 wasn't perfect, but let other new generations now find better solutions.
2 They said that I was a member of the JCE and that I worked on
3 supporting the SDS in creating their organs and other organs.
4 Gentlemen, I was not a candidate of the leadership of
5 Republika Srpska or, rather, the SDS when the multi-party elections were
6 organised. It was just a coincidence that I became president of the
7 Assembly when the political life in Bosnia and Herzegovina became quite
8 active. I was not a member of any board. I did not participate in any
9 pre-election campaign events.
10 One year later when I did become a member of the Main Board of
11 the SDS, I took part in only three sessions of the Main Board that were
12 combined with the Deputies Club. I did not take part in a single
13 Executive Board of the SDS meeting. I was not involved in the personnel
14 policy of the party. I studied management and organisation, and I knew
15 that I could only perform the tasks for which I had been officially
16 appointed. I did not take part in the government cabinet session when it
17 was established on the 12th of May. I did not take part in any meetings
18 of any Crisis Staff except for once when they came to visit. It was the
19 Crisis Staff of Ilijas. And now people are saying, "You assisted the
20 SDS." Well, the SDS had deputies in the parliament, that's true, but
21 during the war the SDS froze its activities. I'm now speaking of the
22 facts only.
23 They said that I knew of certain crimes. Gentlemen, you have my
24 appeals brief before me [as interpreted], and I said in my testimony that
25 the Main
1 Main Staff of the army of Republika Srpska. You have evidence before you
2 indicating that they had never sent any report to me. The same goes for
3 MUP, the Ministry of the Interior. They had never sent any reports to
4 me. I said that during my testimony, and now I corroborated that by
5 various documents that I submitted to you. I never received any reports
6 by any Crisis Staff.
7 The judgement says that I had been informed by the members of the
8 so-called JCE. Gentlemen, you have documents indicating that
9 Mr. Karadzic and I sat at a press conference where we were told that
10 there were no civilians in any gaols. Mrs. Plavsic said publicly in an
11 interview that there were no civilians in any gaols. Mr. Djeric said the
12 same that there were no civilians in prisons. Mr. Stanisic sent a
13 request to inform whether there were any civilians in the prison.
14 Mr. Mandic in his interview to the OTP said that Momcilo Krajisnik was
15 never close to him until he was replaced and now they are linking me to
16 these people.
17 I didn't even know Arkan until 1995. Slobodan Milosevic exerted
18 pressure on us saying you have to do this, you have to do that. And now
19 they're claiming that I was in some JCE together with him.
20 Now that I'm saying this, I'm remembering the following: They
21 said that I gave a contribution to the JCE. You have an exhibit there.
22 On the 18th of March, Momcilo Krajisnik called to arms. That's what
23 they're saying. I as a member of the negotiating team simply conveyed
24 what we had agreed upon with the Muslim side on the previous day, and I
25 simply said it's better if we draw maps out in the field rather than in
1 an office, but several words were dropped from this text and it was
2 wrongly quoted, taken out of context implying that I called to arms. I
3 used the word "separation" several times.
4 Let me now reiterate that the only meaning of the word
5 "separation" was what we had agreed upon with Cutileiro. What was the
6 compromise that we reached? Bosnia
7 were to separate along the ethnic lines, the territorial lines, and we
8 were to have our own constituent unit. You cannot have your own unit
9 without a demarcation. This was later done in Dayton. And had we done
10 it earlier through Cutileiro's plan, many more people would still have
11 been alive, and I would have avoided this fate, and many other -- many
12 more other people fared much worse than I did.
13 What is being imputed to me here in the appeal, and you've seen
14 that was that I was informed of crimes. You can see it in the appeal
15 here. Not a single municipality from which the Muslims have left, and
16 that's Bosanski Novi, Petrovac, Kljuic, Prnjavor, and all the rest. None
17 of these municipalities had informed anyone from the leadership about
18 that, myself included.
19 You have Pasic Radojko, other witnesses. They all said we did
20 not inform leadership about the departure of the Muslims. I just knew
21 about the departures of Serbs because 15.000 Serbs from Sarajevo
22 in Pale and they were all happy to have remained alive and no one said
23 that that was not true and they said fine. One has to flee from the war.
24 And then when peace comes, like in any other war, everyone will go back
25 to their own homes.
1 I did not submit a resignation as speaker of the parliament of
2 Bosnia and Herzegovina hoping every day that a solution would be found at
3 some conference. Once a solution is found, we will all go back and we
4 will continue as things happened through the centuries. That did not
5 happen. Different arguments are being taken into account here, arguments
6 to prove that Krajisnik knew of certain matters. I'm just going to say
7 one thing by way of an illustration.
8 They asked me, "Do you know that Sarajevo was shelled on the 14th
9 of May?" And I said I don't know. And "Do you know that on the 10th of
10 June there was supposed to be another shelling?" And I said I don't
11 know. And then they said, "Do you know that a big group of Muslims on
12 the 14th of May were in Pele and exchanged?" And I said I don't know.
13 And then they said, "Well, you don't know anything. How can you not know
14 when that happened 100 metres away from your office and that's where the
15 Muslims were and Sarajevo
16 know. That's the only answer I gave and you have it there. I was not in
17 Pale. And finally, on the 14th and 15th I attended the Assembly, and I
18 was in Belgrade
19 the 10th of June it is certain that the Chamber would have ruled
20 differently if they knew on the 10th of June, rather, that this witness
21 was not telling the truth, rather than on the 9th of June a decision was
22 made, Karadzic, Koljevic, Plavsic, Djeric, Krajisnik, Mladic, saying that
23 the use of artillery had to be stopped vis-a-vis Sarajevo. And now
24 somebody decides that Sarajevo
25 10th, all of a sudden Mladic says somebody -- Sarajevo is going to be
1 shelled, and the person who says that has a good reason to say it because
2 he is responsible for that.
3 There are other facts that you will see too. You will see that I
4 objected to each and every fact that was presented there and you will see
5 that I did not say anything by way of giving a mere statement. All of
6 this is evidence, hard evidence, and I hope that this is going to portray
7 a different picture from what is reflected in the judgement.
8 Not to go into other crimes, but I would like to assure you that
9 I know that whenever there was some indication of a crime, whenever I
10 attended meetings, instructions were immediately given to investigate
11 this, to see what this was all about and to punish the perpetrators. You
12 will see in each and every one of these remarks that that was the case.
13 I'm going to give an illustration of the Assembly from the 24th until the
14 26th of July that took place in Jahorina. That's when the MPs came.
15 This was the first Assembly outside Banja Luka. And you know what?
16 People were saying MPs were talking about hundreds of crimes, about the
17 fact that the state was not functioning and they said to me what have --
18 and then they said to me here what did you do -- do about this? And I
19 said, Well, I don't know. I went to a conference. I gave you evidence
20 here. On the 28th of July there was a meeting of the government and this
21 was on the agenda, the resolutions of the Assembly. They took measures,
22 they sent a team to Banja Luka to investigate all of this and Karadzic
23 gave an order because he was the Supreme Commander to disband the
24 so-called special units from Novi Grad that were creating problems, and
25 Mladic said the paramilitaries should be disbanded. Whereas the minister
1 of the MUP was sent to Birac and Mr. Dukic had come from there and he
2 said that he had replaced all the Muslims. They were all the Muslims who
3 were judges there. I did not know about that when I testified. I did
4 find out in the meantime and I've presented all of this to you so that
5 you could see.
6 They tell me that I had to know about things that I was informed
7 of from international media and other media. Believe me, Judges,
8 whatever I heard -- I mean, I hadn't heard of any one of these pieces of
9 information, rather, I did not believe all of these things. They said
10 Momcilo Krajisnik's father committed suicide because he renounced his son
11 because he had left with the Chetniks. I heard that people were saying
12 that lions were eating children in the zoo and that they were showing
13 cemeteries saying that this is where Muslims were buried and it was
14 actually Serbs. You would not believe the anti-propaganda at the time.
15 I had to ask the people only who were in charge of different matters.
16 You're talking about JCE here and I said has anything come out of this
17 and they said no, no, nothing, and they said that publicly.
18 I just listened to what was going on to the Serbs. That is the
19 other thing I heard about. I did not hear about anything else.
20 What I'm trying to say now is I am being cautioned, I mean we've
21 split up our time and, you know, these lawyers are dangerous people so I
22 really have to stick to what we agreed upon.
23 They told me I was a powerful man. I did not know why I was
24 powerful. I did not issue a single order. I could not carry anything
25 out, so what kind of power can that be? When I sat there as a witness
1 and as I was watching the Judges and watching you today, I realised why I
2 was powerful. The person who is down there looking at the people down
3 there, and I was the president of the parliament and that's the person
4 who gives people the floor and reaches conclusions and so on, that person
5 seems omnipotent. And then if this person Momcilo Krajisnik even
6 attended negotiations, then he is really important.
7 And I'm going to end on this note while giving this example:
8 Once this lady came Mrs. Plavsic was the head the commissioner's office
9 from Pale and then I had this delegation from Pale coming in saying,
10 "There was a shelling of Pale and we don't want her on the school board."
11 And they said, "What do you mean?" "Well, we don't want to have a school
12 because a shell is going to fall here and then the children will be
13 killed. Are you going to be held responsible for that?" Well, who is
14 going to be responsible if for 500 years there is no school?
15 So then I said call your parents and see whether they want to
16 send their children to school on their own responsibility. They called
17 the parents and all the parents said that the children should be sent to
18 school, and there was no shelling ever after that. And then they say
19 people would not go to see Krajisnik if he were not powerful and if he
20 did not resolve their problems.
21 Let me just end on this note, what the Prosecution presented
22 yesterday, these references here. I would like to assure you all of this
23 is in the English language so I could not understand it very well, but on
24 the basis of what I did manage to understand, not a single one of those
25 things is the result of a joint criminal enterprise.
1 I'm just going to give you two illustrations: In Pale -- well,
2 Pale I know about. Crncalo was a witness. He did not know that he had
3 signed an agreement on property, that he should safeguard Serb property
4 and that the Serbs should safeguard his property. He did not know that
5 he was going to Sarajevo
6 things. The Muslims did not leave Pale because somebody had expelled
7 them. Rather, they left because 60 Serbs had been killed a while before
8 that, so they left through a gorge, having received the word of the
9 Muslims that nothing would happen. However, they killed them
10 nevertheless. So they were scared. So they wanted to leave.
11 You have proof of the fact that I did not know that the Muslims
12 had left. The session on the 26th of July, you have a statement to the
13 effect that Muslims are still there at Pale on that day because we all
14 thought that that's the way it was, and -- but this was all the result of
15 what the local authorities did.
16 Another thing that I am going to end on, Bijeljina is the first
17 element in the JCE. That's what they say. Gentlemen, on the 27th of
18 March we have a session. That is only a question of three days. At this
19 session we say we need peace. We have to preserve peace. This is our
20 Assembly saying this. War is not a good thing. Again we will have to
21 negotiate, and there was no plan whatsoever. What was stated publicly,
22 and you have this by way of evidence, before this there was a conflict in
23 Brod and before that in Kupres when the Serbs were attacked.
24 In Bijeljina, there was no reason for the Serbs to attack the
25 Muslims. The Serbs held power in their hands 100 per cent. That is to
1 say they did not have to have a takeover. It was a conflict among people
2 locally. No one knew about this. I was in parliament in my office, the
3 parliament of Bosnia and Herzegovina, I did in the know that this was
4 going on. I testified about that here and I asked the person over the
5 telephone, I said, "You are interested in what you are liberating, but if
6 you cannot help us do not do anything to unhelp us."
7 I will have another occasion to address you. Once again, I thank
8 you for your patience and I hope that I did not take too much time from
9 my lawyers. I gave them a lot of time, but then I see that once I get
10 talking, I even have to omit certain things without mentioning them.
11 Thank you once again.
12 MR. N. DERSHOWITZ: May it please the Chamber, my name is
13 Nathan Dershowitz and I appreciate the opportunity to share the argument
14 with both the defendant and my brother Alan Dershowitz.
15 The overall problem with the decision below is that it conflates
16 three different concepts into one. The first is the political arguments,
17 views and actions that had been taken to establish a separate Bosnian
18 Serb republic within Bosnia-Herzegovina. We have heard extensive
19 testimony just now, and if you read the record, what is crystal clear is
20 that Mr. Krajisnik was the principal person responsible for seeking to
21 implement the negotiator, the spokesperson, the leader in that sense of
22 the activities in order to arrive at a peaceful solution. There were
23 numerous problems, and I'll go through that in a moment, but you have to
24 separate that which was said politically, that which was sought to be
25 accomplished through negotiations and discussions with two other areas of
2 The second area of concern is the actual war that subsequently
3 took place.
4 There is a third area and technically the only area that should
5 be of concern to this Tribunal and to the Chamber below, and that is by
6 definition the war crimes which by definition are violations of laws or
7 customs of war. So you have three separate categories, and the decision
8 below, and I invite the Court recognising these distinctions to review
9 the decision below because you will see that Mr. Krajisnik has been
10 convicted on the basis of statements that he made that were political
11 statements articulating views as a representative of a position that was
12 being asserted that was totally, completely legitimate.
13 A tribunal to adjudicate who is responsible for violations of
14 international humanitarian law must make this distinction between these
15 matters as clearly as humanly possible. I recognise that it is an
16 extraordinarily difficult task, but it is an essential task. It is the
17 essential task to distinguish between those who articulate politically
18 acceptable views, even politically unacceptable views, and then those who
19 engage in war and then those who engage in war crimes.
20 Here the way the JCE was used eliminated the distinctions, and if
21 you read the decision, you will see that the efforts to create a separate
22 Serbian-Bosnian republic resulted in people being declared to be war
23 criminals. The result in the instant case is in direct conflict with the
24 report of the Secretary-General accompanying the statute and the language
25 and objective of the statute. Though eschewing guilt by association, the
1 Trial Chamber below's decision when carefully reviewed demonstrates that
2 there was guilt by association for those who espoused a political view,
3 those who carried out the war and those who committed war crimes.
4 There is no question that Mr. Krajisnik was a strong, vocal
5 advocate for protecting Serbian interests and sought to avoid Serbia
6 being a powerless minority within a separate country of
7 Bosnia-Herzegovina. There is further no doubt from this record that he
8 was a or the principal negotiator seeking to establish that position.
9 What is seriously in doubt, what is not only unclear but inconsistent
10 with the -- internally within the decision below, is any indication that
11 Mr. Krajisnik had the common objective to carry out violations of the
12 statute, the permanent removal by force of Bosnian and Muslim -- Croats
13 and Muslims, and that they participated during the indictment period in
14 any criminal acts to effectuate the common criminal goal.
15 JCE and its lack of clarity as to what these elements are must be
16 established to find culpability. This is the heart and soul of this
17 case. It is a question as to whether you find people being war criminals
18 who engage in political advocacy and were vocal in support of a position
19 that they had every right to articulate. In fact, if their positions had
20 been suppressed, that would be a violation of human rights. They had
21 absolute right to articulate those views. They even had the right to
22 exaggerate the efforts that they were seeking to -- that which they were
23 seeking to secure in order to posture for purposes of carrying out their
24 objectives, and that is completely lost by this decision below.
25 The problem which started with the Tadic decision has now reached
1 a point where the elements are so elastic and unclear that they virtually
2 have no meaning. Moreover and equally dangerous and what is the heart
3 and soul of this case is that the concepts now criminalise those who are
4 engaging in legitimate protected behaviour that we should be encouraging,
5 not discouraging.
6 There are numerous fundamental problems with the Tadic decision,
7 and I will not seek to relitigate those questions at the present time,
8 but I think it's clear if you look at the precursor to Tadic and Tadic
9 itself, the case that Judges Cassese and Mumba in Furundzija started,
10 they had a very, very limited concept. In the preliminary case, the one
11 that was decided in 1998, which was the first case to discuss a common --
12 a common enterprise or common objective, you had one person seeking to
13 secure information through interrogation of a victim while at the same
14 time another person with him was actually committing the -- the abuse,
15 the physical violence, and the rape.
16 A decision had been made that you can find the person who is
17 seeking the information as part of this, that person was engaged in a
18 common enterprise with the person who was actually committing the crime.
19 There was an acquittal, by the way, on rape charge on that case.
20 That concept of two people carrying out the act together, the
21 actus reus
22 presently applied that one could not recognise that concept in those
23 earlier cases. The same thing is true in Tadic. The Court first made
24 the preliminary determination that Tadic was a part of the group of
25 people that actually committed the atrocities, but they could not point
1 to him specifically as a person who shot someone. It does not take a
2 grave extension of actual participation to find when five people go into
3 a town and people are killed in that town by that group, by that group,
4 that all five people are responsible. That again is so far removed from
5 the way it is being used in this case that it is non-recognisable.
6 The core problem --
7 THE INTERPRETER: Could the speaker please slow down for the
8 purposes of interpretation. Thank you.
9 MR. N. DERSHOWITZ: The core problem with Tadic is that there was
10 a desire to look for theories in order to justify what was stated in that
11 decision as being the legitimate objective, and that is a recognition
12 that under international law all participants in serious violations of
13 international law could and should be found responsible for the acts that
14 they committed. The Tribunal went so far as to suggest that it not only
15 had the right but it had an obligation to find a theory to justify that.
16 More recent decisions by this Tribunal have recognised that it is
17 inappropriate for the Tribunal to be the entity that establishes policy,
18 but it is being blind to reality not to recognise that when you're
19 dealing with levels of culpability, who is responsible, who is to be
20 punished, that you are dealing in policy and that there is a continuum, a
21 line has to be drawn on the continuum as to who we hold culpable. That
22 is a policy decision that is -- normally occurs by a statutory grant of
23 power. When you use phrases which are so elastic as have been used in
24 this JCE, you have lost all concept of original accountability and
25 knowledge that you are committing or potentially committing a crime.
1 In this complex world with -- with complex historic and ethnic
2 and religious clashes, it is essential that the core principles of
3 international culpability be capable of being articulated before a person
4 is charged and not after. The problem in the instant case is that not
5 only were these principles not articulated before, but after reviewing
6 the decision below and the positions of the Prosecutor, there is a lack
7 of clarity on all basic elements of JCE. And more disturbing, once the
8 elements were articulated in the decision with some degree of clarity,
9 the facts contained in the opinion do not support the Chamber's
10 conclusion of culpability.
11 Let me be very specific. In paragraph 883, the Chamber below
12 articulates the elements of JCE. What's interesting just as an aside is
13 you can look at that articulation if you go through many of the decisions
14 by Trial Chambers and by this Court, you will see different formulations
15 of the same principles of JCE. If you review the Prosecutor's
16 presentation, there are slightly different articulations of JCE, but the
17 degree of modification becomes essential to an understanding. Had there
18 been a statutory grant, you would look at the words of the statute, but
19 when you have case law development, there is a tendency to expand and
20 extrapolate constantly on the concepts.
21 The first concept as stated by the Trial Chamber: "A joint
22 criminal enterprise exists when a plurality of persons participate in the
23 realisation of a common criminal objective."
24 I would suggest that that language would seem to be relatively
25 easy to apply in a factual context, but the reality is anything but in
1 terms of this case.
2 Let me deal with the two ends or the three ends of that problem.
3 If you begin with the -- I guess it's the indictment itself. The
4 indictment in this case is so over-broad as to be unbelievable in terms
5 of its description. Let me read you paragraph 7. The indictment says:
6 "Numerous individuals --" now bear in mind where the history of JCE
7 began, with participants who we knew, participants who were present,
8 participants who engaged in the activity but participants who may not
9 have been actually the physical hitter but clearly a participant, holding
10 someone or interrogating someone while someone else assaults them is
11 clearly a participant. But let's see what's charged in this case as
13 It says: "Numerous individuals participated in this joint
14 criminal enterprise. Each participant by act or omission contributed to
15 achieving the objectives of the enterprise." And then it lists the
16 defendants and it says, "they worked in concert." I think "worked in
17 concert" is conspiracy law. No one wants to call it conspiracy because
18 conspiracy is a substantive crime, and if you were to acknowledge that
19 it's a conspiracy, you would clearly be violating the statutory
21 But then it says: "With other members of the joint criminal
22 enterprise including," then it lists a few names. It then says:
23 "... and other members of the Bosnian Serb leadership at the republic,
24 regional and municipal levels, members of the SDS leadership of the
25 republic, regional municipal levels, members of the Yugoslavian People's
1 Army, the Yugoslav army, the army of the Serb Republic of
2 Bosnia-Herzegovina," and it then says -- I'm skipping parts, "the Bosnian
3 Serb Territorial Defence, the Bosnian Serb police, members of the Serbian
4 and Bosnian Serb paramilitary forces, and volunteer units and military
5 figures, political figures from the Socialist Federal Republic
7 think I'm the only one not included in that general category.
8 It is an overwhelmingly expansive category including everyone who
9 in any way supported the Serbian point of view. Not the war, anyone who
10 was supportive of a Serbian point of view.
11 You then had in the decision a listing of names of people who
12 were then added at the end of the case as the specific people who may
13 have been members of the JCE. Then the concern that was addressed in the
14 Brdjanin case and addressed by this Tribunal in its July 18th Scheduling
15 Order then comes into effect. And what I mean is that's the other end of
16 the equation with respect to the persons. And you have starting off a
17 clear indication as to who are the members of the JCE. You had the
18 question which the Tribunal resolved as to whether those who actually
19 commit the crimes on the ground have to be members of the JCE, and the
20 answer was "not necessarily," but you must show the link, the direct link
21 between a member of the JCE and then the person who actually perpetrated
22 the crime. So if you have three or four members of the JCE all agreeing
23 and one undertakes the task of then retaining someone, hiring someone,
24 persuading someone, securing someone to actually commit the crime on the
25 ground, you have the necessary linkage.
1 What has occurred in this case is absolutely the opposite
2 conceptually, and that is you start off with a group of people, and I'll
3 get to the common objective, but just the persons, a group of people,
4 then anyone who engages in any activity suddenly becomes a member of the
5 JCE, and then anyone who then directs anyone to commit a war crime is by
6 definition made a member of the JCE.
7 That's what occurred here. It is so far removed from what was
8 contemplated by the Judges in Tadic that I suggest it is a totally
9 different concept unrelated to the original concept, but if you allow it
10 to expand as it does, you are engaging in charging people solely by guilt
11 by association.
12 My brother Alan will address in more detail the problem that
13 relates to when you do that and how it applies in an international
15 But if you go then to the second element that's listed in the --
16 in the decision as necessary in order to prove that someone is a member
17 of the JCE, you run into at least the same if not worse problems. It
18 says: "The common objective, the first form of JCE exists --" let me
19 just digress for one second, and that is they talk about the forms of
20 JCE, I and III. The only one that's really discussed in this opinion is
21 JCE I, and in the most recent submission, now the Prosecutors are
22 claiming JCE III. When you cannot even tell which concept of JCE is in a
23 400-page decision and a finding of liability, you are obviously inviting
24 a disaster, and that's what occurred in this situation.
25 But going back to the quote it says: "The first form of JCE
1 existed with a common objective amounts to or involves the commission of
2 a crime provided for in the statute."
3 I suggest that if you look at the indictment here, the decision
4 suggests clearly that the joint criminal enterprise must be a stated
5 statutory crime. The common objective has to be a state -- stated
6 statutory crime.
7 I should say that the Prosecutor in its submission, and I refer
8 the Tribunal to paragraphs 35, 36, and 37, even on that simple item there
9 is confusion. They cannot -- you cannot tell from the submissions that
10 have been made here as to whether the objective has to be -- the
11 objective, not the means, whether the objective has to be a statutory
12 crime or whether the means can be the statutory crime. They float back
13 and forth.
14 But the way the decision is written, it is clear that the crime,
15 that the objective must be a statutory crime, but the way the indictment
16 reads here, it says: "The permanent removal by force or other means."
17 That added language is very, very important for the present situation,
18 because it is indisputable that Mr. Krajisnik, through his negotiations
19 and other efforts, was seeking to work out a solution where there would
20 be voluntary, consensual, constitutionally derived methods of
21 transferring populations if the populations chose to. When you set up a
22 separate entity within the context of Bosnia-Herzegovina, people will not
23 be comfortable if there is a majority Muslim population in one area and a
24 Serbian population in the other. There is a radical difference. One is
25 a war crime, and one is a political solution, and the indictment here
1 charges both the war crime and the political solution as being part of
2 the common objective.
3 In addition, if you look at the precursor provisions in the
4 decision and if you listen to Mr. Krajisnik, there is again no doubt he
5 was seeking a political solution to a highly charged setting in which
6 there was a history, a history of whether one wants to talk about months,
7 years or 500 years, there was an underlying history there. There was a
8 lot of tension there. And when you were seeking a solution, he was
9 seeking a non-criminal solution. Certainly not a war crimes solution.
10 And to confuse the two, and again I plead with the Tribunal, read the
11 decision recognising the three different categories.
12 Look at the evidence that was cited throughout as to
13 Mr. Krajisnik's personal involvement and you will see that every comment
14 that he made was directed towards a determination that he was supportive
15 of having some security for the Serbians that were living in
16 Bosnia-Herzegovina. One suggestion early on was they become members of
18 connection to Serbia
19 another one which was the political discussion that was taking place was
20 that you then take within Bosnia-Herzegovina a subsection which then is a
21 recognised unit but unit within the government, which is in fact what
22 happened as a result of the Dayton Accords.
23 The solution that he was politically advocating is what
24 ultimately occurred later on, and you have a gap in the evidence,
25 particularly a gap in the evidence with respect to the relevant period of
1 time. And to the extent that you have him making assertions that if we
2 have a conceptual agreement that we will have a boundary for Bosnia
4 effective for purposes of a political solution if you actually start,
5 once there was a declaration of independence by Bosnia and Serbia
6 actually start having municipalities in place on the ground. That is a
7 factually correct statement. It's a political position. It is a
8 position that every negotiator will take, and there is nothing in that
9 statement which leads one to believe that if he took that position, he is
10 advocating he is part of a group seeking to have a -- a solution --
11 seeking to engage in the war crimes.
12 Similarly, the decision suggests that all co-perpetrators must be
13 acting pursuant to the common design and have the same criminal intent,
14 and that is the heart and soul of the question. There is no evidence
15 that he had the criminal intent to permanently remove by force the Muslim
16 population. Yes, he had the intent, the objective, the goal of having a
17 Serbian municipality of some type established legitimately by
18 constitutional means as he has expressed throughout.
19 The third element in the decision, which is also subject to
20 extreme confusion, the decision says: "Participation of the accused,
21 this is achieved by the accused's commission of a crime forming part of
22 the common objective and provided for in the statute." So he had to be a
23 part of the desire, the objective, a part of a -- a participant in the
24 permanent removal by force. There is no evidence of that. It says:
25 "Alternatively, instead of committing the intended crime as a principal
1 perpetrator the accused's conduct may satisfy this element if it involves
2 procuring or giving assistance to the execution of the crime forming part
3 of the common objective." And I would request that the Tribunal inquire
4 of the Prosecutors as to what evidence there is to satisfy this action
5 which is required, and again you will see conclusory statements. Those
6 conclusory statements are all based upon his personal political
7 assertions of the political position which was acceptable, which is
8 allowable, which is to be encouraged under the circumstances.
9 The other core problem that occurs, and I invite the Tribunal --
10 I can go through many of the statements that are made by the Prosecutors.
11 If you look at them carefully, as I have done, you will see a general
12 statement, a citation to the decision. The decision citation will then
13 be to something which doesn't quite say that, and what it does say is in
14 the early period prior to the outbreak of the hostilities those were the
15 political assertions that he was making in that context, and they have to
16 be looked at with care.
17 As I repeatedly have -- have asserted, you cannot, you cannot
18 have a determination made that if someone is engaged in a politically
19 acceptable conclusion and then others later carry out a similar objective
20 but in a totally illegal way that the person who articulated the initial
21 political position is responsible and has joined in in order to engage in
22 the illegal activity that subsequently takes place.
23 What I'd like to do at this point is turn the floor over to my
24 esteemed colleague, brethren at the bar and brother to proceed unless
25 there are any questions to be asked of me as to the part of the
1 presentation that I have just made. Thank you very much.
2 MR. A. DERSHOWITZ: Thank you, Your Honours. May it please the
3 Court, it is a great personal privilege and honour for my addressing this
4 august body. It's been a lifetime dream of mine to be able to
5 participate in the work of a great and distinguished international
6 tribunal and I appreciate the Court's permitting me to participate in
7 this argument, even in the limited presentation that I intend to make
8 about joint criminal enterprise.
9 THE INTERPRETER: Could the counsel please keep interpretation in
11 MR. A. DERSHOWITZ: [Previous translation continues] ...
12 acceptance that there is no mention of joint criminal enterprise in the
13 statute that bestows the authority on this distinguished Court. This is
14 in contrast to the Rome Statute, for example, which does provide for
15 specific liability based on the act of working in concert with others to
16 a joint goal.
17 Now, if one looks at the report of the Secretary-General, which
18 my brother referred to in another context, which is part of the
19 legislative history of the statute that is the jurisdictional basis for
20 this Court's work, it states that: "In the view of the
21 Secretary-General, the application of the principle nullum crimen sine
22 lege requires that the international tribunal should apply rules of
23 international humanitarian law which are beyond any doubt part of
24 customary law so that the problem of adherence to some but not all states
25 to specific conventions does not arise."
1 I don't think there is any dispute here today that the JCE
2 concept is not, is not beyond any doubt part of customary international
3 law. There is grave, grave doubt, grave doubt. The academic community
4 is bitterly divided over this issue. We have cited articles which
5 include within them citations to other articles which raise grave doubt
6 about whether the entire concept of JCE is acceptable in international
8 Now, we know, we recognise, we acknowledge that this
9 Appellate Chamber has repeatedly said it would not revisit the issue of
10 the appropriateness of JCE. Nonetheless, we feel an obligation to our
11 client and to the law to persist in our objection. We believe that the
12 idea of constructing a new basis of liability violates the very principle
13 that the Secretary-General talked about. We believe that the defendant
14 in this case could not have known during the period of indictment that he
15 would be subject to a JCE indictment.
16 Now, the Court, of course, has been very careful to say that
17 joint criminal enterprise is not the creation of a new crime. It is
18 simply the articulation of an acceptable principle of criminal liability.
19 But functionally, of course, it is a new crime. It is like conspiracy.
20 It is like RICO. It is like so many of the other constructs of joint
21 liability, and it is like what appears in the Rome Statute, yet all of
22 those are statutorily authorised crimes or statutorily authorised bases
23 for criminal liability. This is the first time in our knowledge that
24 what looks like a crime, sounds like a crime, has all the criteria of
25 criminality, has been articulated by a Court in the absence of a clear
1 statutory basis.
2 Because we recognise that this Court has said it would not
3 revisit the issue of joint criminal enterprise, we obviously have as our
4 principal argument to make today to this Court while reserving the
5 argument that I have just briefly articulated and that is expressed in
6 our brief in further detail, we do argue that JCE, even if permissible as
7 a matter of general law, and as my brother argued even if permissibly
8 applicable to the other cases, like the interrogation rape case which, by
9 the way, could have been resolved, without introducing JCE as any
10 principle of law. A person who conducts an interrogation while other one
11 is beating a suspect is a principal. There is absolutely no doubt that
12 you can convict under ordinary principles of criminal law a person who is
13 in such close intimate connection. I would say the same thing was
14 probably true about the Tadic case.
15 This case is very different, and we argue that JCE, even if
16 proper, cannot be applied to Mr. Krajisnik's activities even under the
17 Trial Court's findings of fact which we dispute and -- I'm sorry. I'm
18 speaking too quickly and I will slow down.
19 We dispute the findings of fact. We certainly agree with
20 Mr. Krajisnik's presentation. We appreciate the Court's ruling yesterday
21 which we only got literally at the close of business that we are entitled
22 to interview Dr. Radovan Karadzic, and I can represent to this Court on
23 the basis of a brief contact that I did have with Dr. Karadzic that he
24 will in fact be providing very significant exculpatory evidence, that we
25 will satisfy the Court's obligation to present that evidence within the
1 appropriate period of time.
2 I must also add something, and I'm sorry for this, but we did not
3 get the Court's ruling on the Rule 115 judgement, 54-page ruling until
4 the close of business yesterday on my Blackberry. We have not seen it.
5 It has not yet been given to us in person and so we argue here under a
6 burden of not knowing the content of the Rule 115 judgement. We
7 understand the Court's restrictions on what we are to say publically and
8 we will, of course, completely abide by that. Having said that, I must
9 add again that without faulting anybody else it's the fault of
10 communication and technology that we had a representation from the
11 Prosecution's office --
12 JUDGE POCAR: Sorry to interrupt you. You're saying that you did
13 not receive the decision, the Rule 115.
14 MR. A. DERSHOWITZ: Right.
15 JUDGE POCAR: Should have been given to you actually.
16 MR. A. DERSHOWITZ: I'm sorry, Your Honour. It was sent on my
17 Blackberry at about 7.00 p.m.
18 JUDGE POCAR: That's correct. It was signed about that time.
19 MR. A. DERSHOWITZ: And we had no access to it. We tried --
20 JUDGE POCAR: Do we have hard copies here?
21 MR. A. DERSHOWITZ: -- as best we could. Thank you so much, and
22 we will read it during the recess.
23 The other document we did not receive, and again I don't fault
24 anybody, is the Prosecution made a representation that they would within
25 48 hours of the argument present us with the list of material and
1 response to the Court's order of the nexus issue that was discussed
2 previously. I never received that and received on my Blackberry at about
3 9.30 last night a revised list. So we do not have the original list, but
4 I will not allow that to interfere with the general argument that we're
5 making here. I just want to reiterate that without accepting any of the
6 findings below, particularly the findings that are disputed by our
7 client, for purposes of this appeal, just for purposes of this appeal,
8 even if everything found by the Trial Chamber is credited, every single
9 fact credited, our position is that those facts do not give rise to
10 appropriate joint criminal enterprise liability, and from this point on,
11 I will assume the accuracy of the Trial Chamber's findings though we
12 dispute them and will continue to dispute them for purposes of Rule 115.
13 Now, I think it's very important to note that the trial findings
14 below include a finding that Mr. Krajisnik was not a principal
15 perpetrator. He was not a principal perpetrator. That is, he did not
16 commit any of the actus reuses that are specified in the statute itself,
17 in Article 7(1).
18 It is also important to note that the Court made a finding, and
19 this appears on page 402, that in relation to effective control, that the
20 evidence does not demonstrate that Mr. Krajisnik himself had effective
21 control over these bodies, meaning Bosnian Serb political and
22 governmental organs, Bosnian Serb forces which participated in or
23 facilitated the commission of crimes identified in the indictment.
24 What the Court finds below, and it appears particularly in
25 paragraph 1120 under the heading of Mr. Krajisnik's contributions, were
1 that the accused's overall contribution to the JCE was to help establish
2 and perpetrate the SDS party and state structures that were instrumental
3 to the commission of the crimes and that he also deployed his political
4 skills, both locally and internationally, to facilitate the
5 implementation of the JCE's common objectives through the crimes
6 envisioned by that objective.
7 And it's very important, as my brother mentioned, that there is
8 tremendous lack of clarity as to whether or not our client was convicted
9 based on the first principle of JCE liability or the third principle.
10 The Court seems to suggest that it was only based on the first category,
11 yet the Prosecution in its reply to our brief says, citing several
12 paragraphs, that it was based on category 3 as well. We've read those
13 paragraphs. We do not see in those paragraphs any clear conclusion that
14 category 3 JCE liability was found.
15 The main issue that we think is lacking in this case is simply
16 the absence of an actus reus
17 challenge the Prosecution finally to tell us what is the actus reus
18 was required and was committed by the defendant in this case.
19 What we have is a very important set of distinctions here. What
20 did Mr. Krajisnik personally do that constituted the actus reus as
21 distinguished from the mens rea of the crime.
22 We know, because the opinion say so and because the indictment
23 says so and because the Prosecution has said so, that he did not
24 personally commit war crimes. That could be one possible actus reus
25 commission of war crimes. We know that he is not charged with committing
1 ordinary crimes. He didn't engage in looting or burglary or rape or
3 We know that he's not charged with committing neutral conduct.
4 For example, waging a lawful war.
5 What he is accused of is completely characterised accurately by
6 political speech and political activity. This is the first case to our
7 knowledge in any International Tribunal where we have a defendant's actus
9 protected conduct.
10 As my brother put it, I think, very, very well, had a state tried
11 to prevent Mr. Krajisnik from making the speeches that formed the basis
12 for the criminal liability here, that state itself would have been
13 violating norms of international law. What he did was make speeches.
14 What he did was, according to the indictment but we dispute it, helped to
15 create a political party. And of course, this Court has recognised that
16 it cannot under the statute make it a crime to be a member of a political
17 party, make it a crime to be a member of a criminal organisation. That
18 could be a basis of potential liability under a statute that set that
19 out. This statute does not do that. It does not do what the Nuremberg
20 trials did and that is create liability from membership in the Nazi
21 party, member in the Gestapo, membership in, et cetera. So the
22 membership in the SDS could not -- or even organising it could not be a
23 basis for independent liability.
24 And when you get a situation where the actus reus of the crime
25 are speeches, political kills, the Court says very, very clearly one of
1 the bases, the actus reus
2 deployed political skills. Clearly, clearly protected conduct. And
3 stating negotiating positions, even strong negotiations positions. If
4 one were to go back and look at the negotiating positions stated during
5 the India
6 conflicts, the Israeli-Palestinian conflict, one finds as part of
7 negotiating positions, statements very much akin to the statements that
8 are alleged here to be the actus reuses of the crime.
9 I must reiterate again that the defendant is not charged with
10 having personally committed any of the actus reuses specified in
11 Article 7(1). He is not accused of having planned, he is not accused of
12 having instigates, he is not accused of having ordered, he is not accused
13 of having committed except through the vehicle of joint criminal
14 enterprise liability. The Court says defendant's contribution does not
15 have to be substantial and that's part of the jurisprudence of this
16 Court. Again, we think a serious error that to allow joint criminal
17 enterprise liability without a substantial contribution. The Court says
18 it need not be a necessary contribution. All it need be is significant.
19 Now here's the crucial point that there is no finding on below.
20 Significant sounds like a quantitative judgement. That is, there has to
21 be enough. So one speech might not do, two speeches, three speeches. It
22 has to be significant. Substantial would also suggest some quantitative
23 contribution. What the Court never discusses is the qualitative nature
24 of the contribution. Can the contribution be entirely political
25 speeches? Can the contribution be entirely political negotiations? Can
1 the contribution consist entirely of protected conduct under
2 international law?
3 The Trial Chamber implicitly by its verdict concludes that the
4 answer to that question is yes, but nowhere in the decision does the
5 Trial Chamber discuss or consider the implications of that decision, the
6 implications of allowing protected political speech and political
7 activity to become the actus reus
8 or a war crime.
9 For example, if one thinks about the implications of this
10 decision, would it include lawyers? Could lawyers who provided legal
11 services to Mr. Krajisnik during the course of the indictment or lawyers
12 that helped formulate some of the legal presentations but who did it as
13 part of a goal that was shared by the other members of the joint criminal
14 enterprise, could lawyers contribute substantially? Could the activity
15 of lawyers --
16 JUDGE POCAR: Sorry, can you slow down.
17 MR. A. DERSHOWITZ: I'm sorry again. I apologise to the Court.
18 I'm not used to speaking with a translator, and I will try my best. And
19 please don't hesitate to slow me down at any point if I go too quickly.
20 There is a case in Canada
21 suggestion that lawyers providing support for a group which ultimately
22 was found to include terrorists could be subjected to some kind of
24 There's a case in New York
25 that kind of work.
1 What about financial contributors, people who provide financial
2 support or religious support? What about activists who provide political
3 support and political organising skills?
4 The idea that without clear criteria this kind of activity could
5 become the basis for crimes against humanity has a tremendous deterrent
6 effect, freezing, chilling effect on legitimate political speech and
7 political activity. People in situations of the kind that were faced by
8 the Serbs after the declaration of independence would not be able to read
9 this decision and decide precisely where the line was. And when you
10 don't know where the line is, any cautious, prudent person moves further
11 and further away from the line.
12 Now, if the conduct is criminal conduct or even neutral conduct,
13 there is no harm done in having people act prudently. If you don't know
14 what your tax obligations are, big deal, Your Honours, just pay more
15 taxes or don't go close to the line. There is no protected aspect to
16 paying less taxes. There is no protected aspect to committing ordinary
17 crimes like robbery or looting. But when we're talking about political
18 activity, when we're talking about speeches, when we're talking about
19 negotiations, when we're talking about forming political parties, we --
20 the law should never be in a position where it chills or deters
21 legitimate political activities. And what is gravely lacking in the
22 opinion of the Chamber below, the Trial Chamber, is any recognition, even
23 acknowledgement, that it was moving into territory that is unknown and
24 extremely dangerous. That is, moving from situations where people are
25 beating each other up, where people are shooting each other at close
1 range, where people are engaged in acts of the kind that were committed
2 during the Holocaust or of the kind committed by the Japanese or others
3 that are physical in nature to speech and to political activity. There's
4 no recognition in the decision of the conflict. There's no recognition
5 that this is the first case, that I know of at least, where there is a
6 conflict between protected human rights of the defendant, speech,
7 political skills, and of all other defendants similarly situated and the
8 protected human rights of victims. In this case, there is a clear
9 conflict. It has to be resolved.
10 The Court below resolved it without recognising it, without
11 acknowledging it, without, with due respect, understanding that it was
12 creating a decision with broad implications for political conduct by
13 political leaders similarly situated to our client in this case. And we
14 believe that as the result of that, it failed to understand the
15 implications of the decision for many current conflicts. The
16 implications of the decision obviously for past conflicts, the
17 implications for the war against terrorism, to use the term that is
18 employed by many countries, are very, very grave indeed.
19 Terrorist groups operate within many countries including this one
20 and including my own country. They are often supported by broad networks
21 of supporters. You have concentric circles moving all around, the actual
22 terrorists themselves, those perhaps religious and political leaders who
23 support the terrorism, those who provide financial support. In my
24 country alone, based on a criminal statute, a conspiracy and RICO
25 statute, we have had now more than a dozen criminal prosecutions which
1 have been extremely broad in their application. Many of them have
2 resulted in acquittals because the indictments have been too broad.
3 Do you indict a professor from the University of Florida
4 made speeches supporting terrorism and some of the speeches have been
5 used in fundraising activities on behalf of terrorism? Do you include
6 within the range of joint criminal enterprise rabbis or ministers or
7 preachers or imams who might share the goals and talk from a religious
8 perspective about the goals but don't talk about the means toward that
9 goal? I don't mean only to include in this context current debates about
10 terrorism but in my country you have priests talking about blocking
11 abortion clinics and abortion centres and there have been grave issues
12 that revolve around how far to extend the liability.
13 During the Northern Ireland-British conflict there were grave
14 questions about how broad and how far the issues may range for purposes
15 of joint criminal responsibility.
16 And I know we are coming close to the time when we have to take
17 our recess, so I simply wanted to end this part of my presentation with
18 the Court's approval by urging the Court, please, as my brother has done,
19 to go back and read the citations of the Prosecution, because the
20 Prosecution, without again making any accusations, has wrenched out of
21 context words spoken by Mr. Krajisnik that are political in nature. And
22 if the court were to review the actual speeches, the time that they were
23 made, some videotapes of speeches around that period of time. Review the
24 fact that they were made while he was in the position as a speaker where
25 he had to accept and be polite to everybody who appeared as other
1 speakers, I think one will find a very, very different view of the
2 context and the political nature of the speeches that were made than
3 appears either in the Prosecution's brief or in the arguments that are
4 made in support of the judgement by the Court below.
5 This case presents this Court with a remarkable opportunity to do
6 what Professor Cassese in his capacity as professor has suggested in
7 recent articles, what other distinguished professors from Stanford and
8 Vanderbilt and others have said as well, and that is without necessarily
9 reconsidering the jurisprudence of JCE to impose very clear lines, the
10 kind that a legislature would have done had there been legislative
11 determination, traditional legislative determination, you would have
12 hearings, you would have reports, you would have consideration of where
13 the line should be drawn. You'd have people testifying on one side or
14 the other. What will this do to the political views, to the political
15 implications? This Court has not had the benefit of that.
16 Even in the Tadic case the issue was not briefed. The issue was
17 really briefed on other grounds, and most of the briefs that have been
18 submitted in subsequent cases the issues have been briefed, but in the
19 early cases it was almost taken for granted that JCE liability is
20 appropriate, and we think this provides the Court with a unique
21 opportunity to draw the line and to require as actus reus crimes
22 themselves, to require criminal conduct, independent criminal conduct
23 where the government can point to as the actus reuses, this is a crime,
24 this is unprotected conduct and now we move toward seeing whether or not
25 it imposes joint criminal enterprise liability.
1 I thank the Court very much. The time has come to take our
2 recess, and I will continue my argument after the recess, and we will
3 accept -- hope to hear some questions after the recess if there are any
4 from the Chamber.
5 Thank you very much, Your Honour. I apologise for speaking so
7 JUDGE POCAR: Thank you. Indeed it's time to break. There maybe
8 some questions after the recess. We break for 15 minutes, and the
9 hearing will be resumed at 10.30.
10 --- Recess taken at 10.16 a.m.
11 --- On resuming at 10.36 a.m.
12 JUDGE POCAR: So we resume our hearing. I understand that
13 Judge Meron wants to put a question now to the Defence, please. He has
14 the floor.
15 JUDGE MERON: Thank you, President. This is a question to the
16 Dershowitz brothers. As you may know from my dissent in the Media case.
17 I am sensitive to the argument you made about protected political speech,
18 but I will expect the Prosecutor later to deal with that, and I will
19 direct some questions to the Prosecutor on that, not to you.
20 At the moment I would like to raise with you, Mr. Dershowitz, a
21 technical point regarding JCE. Assuming for the purposes of the argument
22 this morning (a) that there was a JCE and (b), that Mr. Krajisnik was a
23 member of the JCE, as you know, the Appeals Chamber in the Brdjanin case,
24 the Brdjanin judgement, articulates the links that must be established
25 between crimes committed by non-JCE members and the actual JCE members.
1 To you what extent do you argue that such proper links have not
2 been established, and if they have not been established, which portions
3 of the trial judgement would be invalidated as a result?
4 MR. A. DERSHOWITZ: Thank you very much, Your Honour. I would
5 like to defer on that question to my brother who is better educated than
6 me having attended NYU Law School
7 JUDGE MERON: That's a good beginning.
8 MR. N. DERSHOWITZ: The core problem is the way this case
9 proceeded it becomes impossible for the Prosecutor today, or improper for
10 the Prosecutor today to retroactively seek to go through the record to
11 try to justify the linkage. What I think is essential under the decision
12 in Brdjanin is that you first start in any analysis with an indication of
13 who are the members of the JCE. Then you have to identify, assuming
14 you're going through linkage to those who are not perpetrators, you then
15 have to identify the member of the JCE, and then what you have to do is
16 demonstrate the direct, direct, connection to the action that was
17 undertaken. And that should be the charge so that you can defend against
19 What they've done here is impossible to defend against, because
20 what happens is it's such a vague open-ended description of who are
21 members of the JCE. Then they add members of the JCE on the basis of the
22 activities that took place, and then they try to make the link. So it's
23 exactly the opposite of what I think was the concern in Brdjanin if you
24 start with actual perpetrators, because what you're doing is by
25 definition almost you are saying a -- what they are saying is an act
1 occurred which is a war crime. Whoever suggested it must have been a
2 member of the JCE, therefore, you then connect it back up to the original
3 JCE. And that is backwards, inappropriate, and, you know, also in our
4 situation the Court -- again the Chamber's decision is somewhat
5 inconsistent with a number of opinions by -- by this Tribunal and the
6 positions taken by the Prosecutor is to some extent inconsistent with
7 both of those, but the way it is described in the decision there is a
8 need to have the JCE membership agreement or non-agreement but joining
9 prior to, prior to, any act occurring so that the date here must be under
10 the judgement prior to April of 1992. So it becomes very important for
11 the Prosecutors to be able to demonstrate a joining or the JCE
12 establishment prior to 1992.
13 Now, maybe you can join it later, but then you have to
14 demonstrate something to establish it, but they use the date of April
15 1992 as the date where there is an agreement to commit the war crimes.
16 And the statute -- the statutory division has to be connected according
17 to the judgement to -- there has to be a joint enterprise to commit the
18 statutory crime that has to have occurred in April of 1992.
19 So to answer your direct question, I think it's too late for them
20 to do that. I think if you take the logic of where the progression has
21 gone instead of having a logical next-step progression, they have now
22 reached way beyond and are trying to work backwards to justify, which is
23 inherently an inappropriate method of proceeding with a criminal charge.
24 Anything further, or ...
25 JUDGE MERON: I appreciate your answer, Mr. Dershowitz, but my --
1 the focus of my question was specifically whether in your view the
2 Trial Court established that -- found that links have been established
3 between crimes committed by non-JCE members and actual JCE members.
4 MR. N. DERSHOWITZ: And I'm suggesting there was none. There are
5 a couple of paragraphs, but those paragraphs are ad hoc additions that
6 were made which is inappropriate and they still do not connect up, but
7 that individual who is now supposed to be a member of the JCE add --
8 added post hoc because of something that happened without any dates,
9 times or other things and then they make him a member of the original JCE
10 as opposed to starting with who are the members of the JCE, identifying
11 what he did or she did to carry out the JCE, and then seeking to get the
12 link. I think it's paragraph 1006. I have the paragraphs that are
13 particularly defective in that regard.
14 JUDGE MERON: And if links have not been established, what is the
15 impact on that, on the validity of the judgement?
16 MR. N. DERSHOWITZ: I think the whole judgement must be set aside
17 without any question, because there is a concession that he was not a
18 perpetrator of any of the acts. Therefore, if he is not a perpetrator of
19 the criminal acts and there is no link, the judgement must be set aside.
20 JUDGE MERON: I will not pursue that, but if you look at
21 paragraphs 299, 300 of the trial judgement, you'll see there a reference
22 to some crimes which were committed by JCE members.
23 MR. N. DERSHOWITZ: But again, Your Honour, I believe -- let
24 me -- I would have to check, Your Honour, as to whether those
25 provisions -- you've been receiving an indication as to deficiencies
1 within the judgement, and I would have to examine those which they
2 concede now are not supported, and what I would also have to do is go
3 backwards in order to see whether those statements are connected up to
4 the actual war crimes because they're frequently not.
5 MR. A. DERSHOWITZ: Your Honour, may I add that we will
6 supplement this, with the Court's permission, with a brief written
7 response when we have had an opportunity to look at what the Court
8 referred to. May I simply add one sentence about this.
9 This is a unique case. This is not a kind of case where -- which
10 the Court has discussed in the past where you have a firm JCE. Everybody
11 knows who the members are, JCE, and then a stranger, for example, walks
12 into a concentration camp and kills people or some person who is totally
13 outside does that. Here what the Court has done is because the goal was
14 so broad and political, that is separation, ethnic separation goal which
15 is tragically pervasive all over the world and because the indictment
16 says by other means, meaning lawful means as well, virtually anybody of
17 Serbian background who lived in this area could be considered as a member
18 of the JCE, particularly if they then participated in any of the crimes.
19 So what the Court has done is it's mooted the question essentially. The
20 Trial Chamber mooted the question of what happens when a non-JCE member
21 commits a crime. They simply make him a member of the JCE retroactively,
22 and at the very least what would be required is a linkage between that
23 crime and the defendant. The defendant would have to, before the crime
24 was committed, be aware of the fact that the crime was going to be
1 Now, of course in this case, we do have a conclusion of the Court
2 that he was not in a position of authority. That he could not have
3 prevented, and indeed many -- there's a contradiction in the lower
4 Court's judgement, because they hold him responsible for his inactions,
5 for failing to investigate, failing to prosecute, when they also make a
6 finding that he didn't have the authority to do so. And I think the
7 evidence will be very clear that Mr. Krajisnik could not investigate and
8 could not prosecute on his own, and we have no evidence of what his
9 opinions were as to whether there should be Prosecution or not.
10 I'd like to -- I welcome questions so I want to make sure I'm not
11 stopping anybody from asking questions. And please feel free to
12 interrupt in the middle of a sentence.
13 I would like to devote the rest of my time to considering the
14 implications for appellate review of what this distinguished Appellate
15 Chamber how it should look at the Trial Court's judgement in light of the
16 fact that we're talking about political speech and political activity.
17 Now, the Trial Chamber below did say under its paragraph 1196 of
18 standards for making inferences that: "A finding must be more than a
19 reasonable inference in circumstances, it must be the only reasonable
20 inference," which is a very daunting standard. Unfortunately, the lower
21 Court failed to apply that standard, its own standard when it came to
22 evaluating the speeches. They may have applied that standard, I leave
23 that to others because it's not part of my role, when we're talking about
24 whether witnesses, as they said, lacked specificity as to the identity of
25 the alleged perpetrators on purely factual issues of who was where and
1 when, but when it came to interpreting speeches, I am confident that when
2 this Chamber reviews the evaluation of the Trial Chamber they will see
3 that it drew all inferences adverse to the defendants's political nature
4 of his speeches. Every time there was two possible interpretations of a
5 speech, one as posturing for political bargaining position in a
6 negotiation or committing a crime, they would always take the inference
7 most adverse to the defendant.
8 For example, when they say at some point that they characterise a
9 statement he made as a call to arms, accused call to arms, 925 paragraph,
10 at the Assembly session of March 18, 1992
11 and look at the surrounding evidence, it is so clearly not a call to
12 arms. It is a call to lay down arms. It is a call for political
13 resolution of the conflict, but it's a call stated in strong terms.
14 The same thing is true of so many of the other speeches, some of
15 which probably many of us including myself would find disturbing as a
16 matter of substance. For example, the statement not made by him but made
17 by somebody else that Muslims with their birth rate will gradually stifle
18 our territories. The accused replying to that passed over the remark.
19 That is, he failed to correct a remark made by somebody else even though
20 as speaker, often, he had to simply be polite.
21 But let's assume even the worst case scenario. Let's assume that
22 a defendant makes a speech that says that we have to worry about the
23 birth rate of Muslims in our community or the birth rate of Hasidic Jews,
24 or the birth rate of Catholics or the birth rate of anyone else. One all
25 has to do is read the newspapers. That's being discussed in every
1 country of the world today and I think if one takes everything that the
2 defendant said and reads it in the context of what he was thinking and
3 what his role was, one has to interpret it -- the inferences that have to
4 be drawn, the -- if you have to conclude that it's the only inference, if
5 you apply the Trial Chamber's own standard that it's the only inference,
6 you certainly cannot conclude that the only inference that can be drawn
7 is a criminal inference.
8 I believe, actually, and I represent to this Court having read
9 many of the speeches in context, that the most reasonable inference is an
10 inference of political speech and not an inference of inciting violence,
11 but I don't have to satisfy that standard. The Prosecution must satisfy
12 the standard. There is no reasonable inference other than a criminal
13 inference that can be drawn from those speeches. That simply cannot be
14 done when one reads these speeches in context. If one goes through every
15 one of the paragraphs, and obviously I'm not going to burden the Court by
16 doing that, every one of the paragraphs which describes a speech there
17 are always more than one way of reading the speech.
18 Now, we know that politicians can be very good at that.
19 Religious leaders can be very good at that too. They can talk
20 poetically. They can talk metaphorically. They can talk in ways that
21 posture, in ways that mean one thing to one person and one thing to
22 another. But you simply cannot prosecute a person for war crimes based
23 on speeches and political statements that can be read in multiple ways.
24 And we think that although the general appellate criteria for reviewing
25 fact findings below are to draw reasonable inferences in favour of the
1 winning party, the Prosecution, that's the usual standard on appeal, that
2 is not the standard when freedom of speech and political activity is
3 involved. That is not the standard the United States Supreme Court
4 applies. It is not the standard the House of Lords applies. I don't
5 know that there is any jurisprudence on this issue internationally. We
6 haven't really been able to find any specifically on what the appellate
7 rules should be in reviewing factual determinations. But we submit that
8 the best practice if there is no binding precedent the other way is to
9 draw all inferences very favourably to the defendant when it comes to
10 political speech and political activity in order not to serve to chill
11 political speech and political activity in the future, recognising the
12 delicate balance and the delicate conflict that exists when political
13 speech is turned into a human rights violation.
14 Now, I think the same thing is true when it comes to the mens
15 rea. I focused right now up to this point on the actus reus which we
16 think is the crucial absence in this case, the actus reus. No criminal
17 actus reus
18 the suggestion has been made that knowledge is enough.
19 Now, knowledge may be enough when one is dealing with military
20 actions done by the defendants themselves. Knowledge, for example, that
21 there are civilians in a town when he has directed a call to the shelling
22 of that town, knowledge would be enough. But knowledge, Your Honours, is
23 simply not enough for mens rea when it comes to political speech. Think
24 of the implications if that were the case. It would mean that every
25 political figure would have to remain silent once they knew that they
1 were making speeches and their speeches could be misinterpreted to add to
2 the violence or contribute to the violence or could be re-interpreted
3 after the fact. That cannot be enough. A politician must be encouraged
4 to continue to speak even with the knowledge that there are crimes being
6 So although Mr. Krajisnik, I think, has very effectively and
7 there will be more documentation and certainly more documentation from
8 Dr. Karadzic about his lack of knowledge and the particular role he
9 played and the lack of authority he had, but assuming, even for worst
10 case scenario for purposes of Appellate review, assuming that he did know
11 about the shelling, that he did know about this activity, he did know
12 about the other activity which he did not, does that mean that he had to
13 refrain from continuing to speak. His goal was, yes, to try to achieve
14 on the ground positions, legally, that would help him in his negotiating
15 posture. Every negotiator does that. Whenever there are cease-fires
16 both sides want to improve their position on the ground, to increase
17 their leverage when it comes to negotiation, and I think that everything
18 that Mr. Krajisnik said even during the worst periods have to be read in
19 the context of his role as a negotiator, his role as somebody who was
20 pushing toward a peaceful resolution.
21 Yes, he predicted war would come. Yes, he predicted that war
22 would have horrible consequences. Yes, all of those things were said in
23 the context of trying to avoid war. Yes, he did and others did remind
24 the Serbs of what had happened during the Second World War when hundreds
25 of thousands of Serbs were killed when they were exposed vulnerably to
1 the excesses of Nazis who were working in collaboration with some of
2 their enemies in the Croatian and Muslim community. Yes, but he told the
3 truth. Now, it may be an ugly truth and it may be a truth that some
4 people would then take as an invitation for action, but again unless the
5 criteria, the very, very technical criteria for incitement had been
6 satisfied and had they been satisfied, he wouldn't have had to be charged
7 with joint criminal enterprise. He could have been charged with
9 In the Rwanda
10 radio and describing the locations of where the victims lived and why
11 they should be killed and calling directly for incitement, that's not
12 protected political speech. Or what Streicher did during the
13 Second World War was held by the International Tribunal at Nuremberg not
14 to be protected speech. But I submit that even the Prosecution would
15 acknowledge that every one of the speeches that were made, every word
16 uttered would be protected speech, that there was not a single speech
17 made that in and of itself could be charged with a crime, could be
18 charged as an incitement.
19 So when you have a situation where we're dealing with a political
20 speech, where we're dealing with, as the Court itself said, helping to
21 set up, establish the SDS and other structures of government and using
22 his political skills, even if the Court believes for the wrong purposes
23 and the wrong ends, so long as the means, that is the actus reus
24 means were not only not criminal, and here again I make this distinction
25 very sharply there are three categories, or four, war crimes, ordinary
1 crimes, neutral conduct, and protected conduct. And in this case we're
2 talking about protected conduct, protected political speech, speech that
3 could not be banned by a nation consistently with its obligation to
4 protect free speech, that the criteria must be different. The criteria
5 of mens rea must be different, the criteria for actus reus
6 different. The criteria for complicity and joining the joint criminal
7 enterprise must be different.
8 After all, if one reads this indictment and the judgement, it is
9 perfectly consistent with the indictment and the judgement that, yes,
10 Mr. Krajisnik believed in separation. Yes, hypothetically, though we
11 don't concede this, he even believed that a transfer of population would
12 be desirable, as a transfer of population was done after the Second World
13 War, in the Sudetenland
14 many, many, many other parts of the world, transfers of population -
16 population was a desirable thing. Even if one concedes that, that in and
17 of itself does not create a goal, a JCE goal that is criminal and the
18 means, the means that were identified specifically with this defendant or
19 political speech means.
20 And so when the goal was political and the defendant's means were
21 political, we get a situation, and I will end with this, of the kind that
22 occurred in the United States in perhaps its most famous conspiracy case
23 in recent years, the case against Dr. Spock, a world famous paediatrician
24 who strongly opposed the war in Vietnam
25 in that case on behalf of the defendants. What you had was six groups of
1 people who opposed the war against Vietnam
2 different ways. They all had a common goal; their goal was to end the
3 war. Dr. Spock, being a Ghandian and a supporter of Martin Luther King,
4 believed in passive resistance, including perhaps some criminal conduct,
5 blocking of draft centres but nothing active. He would lie down and
6 allow himself to be arrested.
7 Other members of the conspiracy believed in different ways of
8 ending the war in Vietnam
9 were more illegal, and the court threw out the entire conviction in the
10 case on the ground that what the Trial Chamber in that case, the
11 Trial Court had failed to do was to require not only that there be a
12 joint goal, ending the war, but that each defendant adhered personally to
13 means that were (a), constitutionally unprotected, and (b) that were
14 illegal in and of themselves. They used the term bivariated or
15 bifurcated conspiracy. When you have conspiracy that contains both
16 lawful ways of achieving it and unlawful ways of achieving it the
17 obligation of the indictment, the prosecution, and the Trial Chamber is
18 to require the finders of fact in that case the jury, in this case the
19 Judges, the finders of fact to find specifically that the particular
20 defendant adhered to the unlawful means and personally participated and
21 took actions that were unlawful.
22 Now, that's not the criteria for conspiracy in general. That's
23 not the criteria in the United States. It's only the criteria for
24 conspiracy when the conspiracy involves politically protected speech,
25 when the conspiracy involves activities that in the United States come
1 within the penumbra of the First Amendment, and in all such cases, a
2 different rule of law and a different rule of appellate interpretation
3 must apply. And we ask this Court respectfully (a) we have not
4 abandoning our position about the general inapplication of JCE and the
5 fact it was not approved by the statute, but putting that aside for a
6 minute, we ask this Court to take the opportunity to use this case to
7 create rigid, hard, predictable, foreseeable lines that a person reading
8 the decision of this Chamber would be able to know what speeches he could
9 make, what speeches he couldn't make, when he could make a speech, when
10 he couldn't make a speech, what context a speech becomes a crime, what --
11 in what context other political and leadership decisions become a crime.
12 In the absence of that kind of appellate guidance, we fear
13 terribly that speech and political activity will be chilled. Even if one
14 disapproves of the speeches that were made in this case, and if one reads
15 them in context I think the disapproval will be less sharp, but even if
16 one strongly approves, the essence of freedom is freedom for those we
17 disagree with, freedom of those to make speeches that we would wish
18 perhaps they didn't make, freedom of those to form political parties that
19 we would not vote for or approve of, freedom of those to advocate
20 political solutions that we would not accept.
21 Now, there is one paragraph in the opinion which so clearly
22 demonstrates the political nature of the ruling below. They talked about
23 how Mr. Krajisnik had an obligation to all the citizens of the country in
24 which he lived and that he failed to satisfy his obligation to all the
25 citizens of the country. That sounds like a criteria for impeachment
1 from office perhaps, but it doesn't sound like a basis for the most
2 serious crimes, the most serious crimes in the world, violations of human
3 rights, murder, to be applied to a politician, a political figure who
4 exercised his freedom of speech and his political freedom perhaps in ways
5 that we would disagree with.
6 Thank you very much, Your Honours. I welcome any questions now
7 or during the rebuttal period.
8 JUDGE POCAR: Thank you. Judge Shahabuddeen, you want to --
10 JUDGE SHAHABUDDEEN: Mr. Dershowitz, I find your submissions and
11 those of your brother very helpful indeed.
12 MR. A. DERSHOWITZ: Thank you, Your Honour.
13 JUDGE SHAHABUDDEEN: -- and I congratulate you both.
14 Now, I'm a little unclear about the exact parameters within which
15 you present the right of a politician to make speeches. I think
16 somewhere you recognised that some politicians can say one thing --
17 MR. A. DERSHOWITZ: Yes.
18 JUDGE SHAHABUDDEEN: -- knowing full well that they would be
19 understood by their hearers to mean other thing. Now, I understand very
20 well what you say about the protection of the right to make speeches, but
21 is there a point at which a Court is entitled to say, Well, look here.
22 We have some speeches of the appellant, and we will check their weight.
23 We'll see how they were in fact understood by hearers. Is there a
24 problem of that kind?
25 MR. A. DERSHOWITZ: Your Honour, thank you for an extremely
1 insightful question and a very, very difficult one. I think the answer
2 to that is yes, there is such a point but two criteria have to be met
3 first. Number one, the defendant has to be indicted for having made the
4 speeches. That is, it has to be an indictment based on the speeches
5 themselves, an incitement indictment of the kind that was done in Rwanda
6 or the kind against Streicher in the Nuremberg trials.
7 Second, the Prosecution would have the burden, not the Defence,
8 of setting out the criteria and the lines and indeed the statute would
9 have the obligation to set out the criteria, what incitement constitutes.
10 Now, there is a doctrine both under American law and
11 international law that is very clear, the doctrine of code words. Now,
12 we all know what that means and that's exactly what Your Honour put his
13 finger on. If both the defendant and the hearers of the speech know that
14 code words are being used, that when a certain phrase is uttered, a
15 Biblical phrase, a Koranic phrase, a phrase from literature, a phrase
16 from political speech which can only be understood as an incitement or a
17 triggering act, plainly a defendant could be indicted for such activity,
18 but in this case the Chamber made no such finding.
19 The Chamber did not in any way suggest that Mr. Krajisnik
20 intended or knew that his speech would be understood or that certain
21 words of the speech would be understood. Instead, what the lower Court
22 did is it used metaphors like "call to arms," or he "set the train
23 going." That's guilt by metaphor, and when you deal with particularly
24 political speeches precisely because of the nuance issue Your Honour so
25 appropriately raises, it's one of the hardest questions the law ever
1 faces, where to draw the line been protected political speech and the
2 abuse of verbal concepts to, in effect, send out triggering messages.
3 Now, we know that free speech does not protect a Mafia capo from
4 saying to his associate, "Let's kill this man." We also know it wouldn't
5 have protected King Henri VII, if I have my history correct, when he said
6 "Will no one rid me of this meddling priest?" We also know there are
7 other ways of communicating directly a message that would not be
8 protected speech, though I add that it would have to be indicted
9 separately. The idea, though, of indicting for a JCE without specifying
10 the mens rea and the -- without specifying the actus reus and then using
11 the speeches and using the worst interpretation of the speeches to put
12 them all together to form a kind of totality of circumstances argument,
13 gravely, gravely endangers free speech.
14 JUDGE SHAHABUDDEEN: As I have you on the floor. May I burden
15 you with another little question. You have usefully presented us with a
16 brief on JCE, and I'm referring to paragraph 30 of that brief in which
17 you discuss a certain case or cases, and you have named a Judge of this
18 Tribunal whom out of delicacy I wouldn't name now.
19 The last sentence of that paragraph reads: "Perhaps politics
20 dictated one result in one case and another elsewhere." Now, I invite
21 you to focus on the word "perhaps." Is the appellant making an assertion
22 in that sentence or is he speculating on what the answer might be?
23 MR. A. DERSHOWITZ: Thank you, Your Honour, for an opportunity to
24 clarify that. Having re-read it now in the light of question, I withdraw
25 that sentence. I think it was an inappropriate sentence in the brief.
1 What I really meant to say was something rather different and I put it
2 very inartfully. What I meant to say was the potential for a political
3 resolution of a case, subconsciously or consciously, is far greater when
4 you have open-ended criteria like the kind of JCE involved here and in
5 some of those other cases, and particularly when you have such horrendous
6 acts having been committed on the ground, what the law always needs is to
7 protect itself against at least the theoretical possibility that
8 ideology, politics, good faith, humanitarian instincts rather than strict
9 application of the law may somehow find itself into the mind of the
11 To the extent there was any suggestion in the brief that any
12 particular Judge of this Court engaged in that, I personally apologise.
13 I withdraw the sentence and I welcome the opportunity to have made that
15 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Dershowitz.
16 JUDGE POCAR: Any other question from my colleagues? Well, if
17 it's not the case --
18 MR. A. DERSHOWITZ: Thank you very much.
19 JUDGE POCAR: -- we'll move on to the response of the
20 Prosecution, and I give the floor to the Prosecution.
21 MS. GOY: Good morning, Your Honours. We will focus our
22 submissions this morning on the question raised by Your Honours in the
23 Scheduling Order, but before doing that, I'd just like to briefly address
24 a number of points just raised.
25 The first is the distinction between the actus reus of the crime
1 charged and the contribution that the member of the JCE needs to make.
2 The contribution as such doesn't necessarily need to be criminal as long
3 as it contributes to the commission of the crime, and the criminal
4 liability does not result from mere looking at the contribution as such
5 but coupled with having a common purpose together with the other JCE
6 members and sharing the intent, when these two requirements are met, the
7 contribution as such does not need to be criminal.
8 And also Mr. Krajisnik's contributions in this case were not
9 limited to mere political speech, and we have addressed his -- the amount
10 of his contributions extensively in our response to the amicus brief,
11 paragraphs 97 through 106, and the response to Krajisnik's brief,
12 paragraph 90 through 168.
13 And with regard to the level of contribution, the fact that the
14 Brdjanin Appeals Chamber said that the contribution needs to be
15 significant, there can be no doubt that the contributions as found by the
16 Trial Chamber are significant. The Trial Chamber referred, for example,
17 in paragraph 1158 to the role that Krajisnik played as crucial and in
18 1119, it referred to his central position in the joint criminal
20 The other issue addressed the question of under which form
21 Krajisnik was convicted. We've set out in our brief that liability was
22 mainly based on JCE I except for the first incidents of the expanded
23 crimes, those outside deportation and of forced transfer, but we will
24 address this issue further this afternoon because this was also raised by
25 the amicus.
1 And second -- third, I apologise, the requirements set by the
2 Brdjanin appeals judgement in paragraph 430 limit the responsibility of
3 joint criminal enterprise, and as the Appeals Chamber has said, provide a
4 safeguard against reaching into an overarching concept lapsing into guilt
5 by association.
6 With Your Honours' permission, I would like now to address the
7 question that Your Honours have posed in the Scheduling Order.
8 In a nutshell, our position is that the Trial Chamber was
9 required and did establish that the crimes formed part of the common
10 purpose, and this means for those crimes carried out physically by the
11 members of the JCE the Trial Chamber had to and did establish that they
12 were carried out in pursuance of the common purpose, and for those which
13 were not carried out by members of the JCE, the Trial Chamber was
14 required to establish that the JCE members used the principal
15 perpetrators to carry out the crimes. And the Trial Chamber here was
16 entitled to infer this link between the JCE member and the principal
17 perpetrator, either because the principal perpetrators were members of an
18 organisation or structure headed by a member of the JCE or because the
19 JCE member closely cooperated with the principal perpetrators,
20 particularly in light of the magnitude of crimes and pattern of events.
21 On the basis of this analysis, the Trial Chamber was not required
22 to analyse or, rather, set out in detail the specific link between each
23 individual incident and the accused.
24 During my submissions today, I will address how the Trial Chamber
25 in this case directly applied the law of joint criminal enterprise in a
1 situation where most of the crimes were carried out by principal
2 perpetrators who were not members of the joint criminal enterprise, and I
3 will address some legal questions regarding this form of liability. And
4 Mr. Kremer will then later address the findings and evidence with regard
5 to the link in more detail and discuss examples where the link may not be
6 immediately obvious.
7 Before the discussion on the law of JCE and the way the principal
8 perpetrators were used, I would like to give an example of the mentioned
9 close cooperation between the individuals involved in the implementation
10 of the common purpose to remove non-Serbs through the commission of
11 crimes. I will address the events in Zvornik. The references can be
12 found in trial judgement paragraph 360 through 368.
13 The organisations or structures in Zvornik were the Crisis Staff,
14 the JNA, the police, the TO, paramilitary groups, and they were all
15 headed by JCE members on different levels and the findings show that they
16 worked closely with each other and with local Serbs.
17 On 5 April, the Crisis Staff ordered the mobilisation of the Serb
18 TO and around the same time, paramilitary groups including the
19 White Eagles, the Yellow Wasps and the Red Berets began to arrive. They
20 had been invited by the president of the Crisis Staff. Arkan's men who
21 were in Bijeljina and who had generally been invited by the JCE member
22 Plavsic, trial judgement 938, were also present and worked with the Serb
23 police setting up barricades.
24 Shortly thereafter, these groups cooperated to commit the first
25 grave crimes in the municipality.
1 On 8 April, the TO, the police, the JNA, and Arkan's men in a
2 joint operation attacked Zvornik municipality murdering many civilians.
3 Looting by Arkan's men followed two days later. This led to the first
4 displacement of Muslims to the nearby village. And around the same time
5 Arkan's men and the White Eagles worked together detaining Muslims in a
6 factory where Muslims were extensively mistreated.
7 The president of the Crisis Staff came to the facility and
8 interrogated and beat a detainee. Arkan's men killed approximately 18
10 THE INTERPRETER: Could counsel please slow down.
11 MS. GOY: I'm sorry.
12 In late April or early May, the groups working side by side in
13 another village, another crime site, the village of Divic, Arkan's men,
14 reserve police, and the White Eagles, those who had been invited by the
15 Crisis Staff, attacked the village and 1.000 Muslims fled to a nearby
17 Around 10 May, the police moved Muslim detainees who had been
18 guarded by local Serbs to another detention facility. Sometime later,
19 the prisoners were moved again and brought to a detention facility
20 guarded by the reserve police. Armed groups including paramilitaries
21 were frequently allowed to access and mistreated detainees. There was a
22 densely-woven network of close cooperation between the groups in Zvornik.
23 It shows that they functioned within the greater scheme of the common
24 purpose that was shared by the JCE members heading and controlling the
25 respective groups.
1 Turning now to the question of the application of the law on JCE
2 where the majority of crimes were not physically committed by JCE
3 members. Before doing that, I would like to quickly remind Your Honours
4 who the JCE members were and what the common purpose was they wanted to
6 The Trial Chamber, in paragraphs 1086 through 1088, found that
7 the JCE consisted of persons situated throughout the territory and
8 distinguished between a Pale-based leadership and the rank and file. The
9 Pale-based leadership included, in addition to Momcilo Krajisnik,
10 Radovan Karadzic, the president of the presidency and head of the SDS
11 party; Biljana Plavsic, a member of the Presidency; Nikola Koljevic, a
12 member of the Presidency; Momcilo Mandic, the Minister of Justice;
13 Velibor Ostojic, the Minister of Information; Mico Stanisic, the Minister
14 of Interior and thus, head of the MUP; and Ratko Mladic, VRS commander as
15 of 12 May. And the rank and file level of the JCE consisted of local
16 politicians such as presidents of Crisis Staffs and local SDS officials,
17 local military commanders such as JNA and VRS commanders, police
18 commanders, and paramilitary leaders and the Trial Chamber specifically
19 named certain members of the rank and file component.
20 The common purpose of the JCE was the removal of Bosnian Muslims
21 and Bosnian Croats from large areas of Bosnia-Herzegovina through the
22 commission of persecution, murder, extermination, deportation, and
23 forcible transfer, and the Trial Chamber found that initially the common
24 purpose of deportation and forced transfer started to include other
25 crimes following the acceptance by JCE members and the continued
1 contribution. While the focus was on forcibly removing Muslims and
2 Croats, killings and ill-treatments were used as the means to achieve it
3 and they were carried out often with the aim to instill fear and force
4 the population to leave. Destruction and appropriation of property were
5 seen as the measure to prevent expelled people from returning. Trial
6 judgement 1093.
7 On 18 March, Krajisnik called for the implementation of what we
8 have agreed upon, the ethnic division on the ground and his call to arms
9 benefitted from the preparation and planning of the ethnic cleansing
10 started by the leadership in '91 where Karadzic spoke before the
11 Bosnia-Herzegovina Assembly referring to possible extinction of the
12 Muslim people. Trial judgement 1099.
13 And during late '91 and early '92, the leadership pursued a
14 parallel track to create a Bosnian Serb state. A peaceful political one
15 based on negotiation and one based on the use of force. Trial judgement
16 1005. By keeping its options open, they were able to continue and
17 prepare for the ethnic division on the ground by force. The leadership
18 including the accused took active steps towards the realisation of the
19 common objective. They consolidated Bosnian Serb central authority.
20 Trial judgement 903 through 909. They urged to set up Crisis Staffs.
21 Trial judgement 93 --
22 THE INTERPRETER: Would you mind slowing down. Thank you.
23 MS. GOY: They established a Bosnian Serb police force, the MUP.
24 Trial judgement 930. And already in spring 1991, the SDS in coordination
25 with the JNA had started arming and mobilising the population.
1 The implementation of the common plan started after Krajisnik's
2 call to arms on 18 March. The Trial Chamber found a general pattern of
3 events in the municipalities. Trial judgement 709. And the differences
4 depended on the ethnic composition in the municipality. Where Serbs were
5 in the minority, Serb forces took over the municipality expelling the
6 non-Serbs. Where they were in the majority and had control over local
7 institutions, Serb authorities and armed Serbs exercised threats,
8 arrests, killings, destruction of religious institutions in order to
9 compel them to leave.
10 And as described in detail in part 4 of the judgement, the crimes
11 were committed by the military, the police, members of the TO,
12 paramilitaries, members of political and governmental bodies including
13 Crisis Staffs and local Serbs.
14 And the Trial Chamber correctly found Krajisnik liable for all
15 these crimes based on joint criminal enterprise. How the members of the
16 JCE implemented the common purpose which was carried out mostly by
17 principal perpetrators which were not JCE members ties in more directly
18 with Your Honours' question on the link between Krajisnik and principal
20 Your Honours asked the question whether the Trial Chamber was
21 required to establish a specific link between each of the crimes and
22 Krajisnik and, if so, to identify this link, namely, to identify relevant
23 findings in the judgement and/or the supporting evidence in the record
24 showing that each of the crimes for which Krajisnik was found liable was
25 committed by a JCE member or could be imputed to a JCE member.
1 As already summarised in the beginning of my submissions, the
2 Chamber correctly determined that crimes formed part of the common
3 purpose either because they were carried out by JCE members or because
4 JCE members were used by -- used the principal perpetrators, them being
5 part of organisations or structures headed by JCE members or closely
6 cooperating with them, particular in light of the magnitude of crime and
7 pattern of conduct. By doing this, the Trial Chamber correctly applied
8 the law as set out by the Appeals Chamber in Brdjanin.
9 The Appeals Chamber in Brdjanin has determined that liability
10 under JCE does not require that the principal perpetrators are members of
11 the JCE. What matters, rather, is that the crime forms part of the
12 common purpose. Appeals judgement 410. And in case the principal
13 perpetrators are not members of this JCE, this requirement that the crime
14 forms part of the common purpose can be inferred from a variety of
15 circumstances including close cooperation with a JCE member. And the
16 requisite link between the principal perpetrator and the accused is thus
17 that a crime can be imputed to one of his fellow JCE members and that
18 this member when using the principal perpetrator acted in accordance with
19 the common plan. Brdjanin 410. That using can take different forms is
20 acknowledged by the Brdjanin appeals judgement which states that the
21 existence of the link has to be determined on a case-by-case basis,
22 paragraph 413. That is a factual determination. And it is clear that
23 such a case of using exists where a JCE member can make use of existing
24 organisations or structures such as the military and the police to
25 instruct their subordinates to implement the common purpose.
1 In Stakic, the Appeals Chamber confirmed use of organisations or
2 structures as the basis for convicting Stakic under JCE liability for
3 crimes committed by the principal perpetrators who were not JCE members.
4 The JCE members were heads of the police, the military, and the
5 Crisis Staff who used their organisations to carry out the crimes. I
6 refer Your Honours to the Stakic appeal judgement, paragraphs 68 through
7 70 and the analysis in the Brdjanin appeals judgement, paragraph 409.
8 But as the Brdjanin appeals judgement stated, using can also be
9 inferred from close cooperation between the JCE member and the principal
10 perpetrator. When, for example, members of the police work closely with
11 local Serbs to arrest or detain people, then it can be inferred that the
12 local Serbs were also used by the head of the police.
13 The Trial Chamber in Krajisnik correctly set out and applied the
14 law. It recognised in paragraph 883 that it is not required that the
15 principal perpetrator is a member of the JCE, rather, that it is
16 sufficient that he is procured by the JCE member. Procuring means to
17 obtain, to bring about, and describes the same concept as using and has
18 been used in this sense by the Trial Chamber in Haradinaj to describe the
19 requirements in Brdjanin. That's the Haradinaj trial judgement,
20 paragraph 138.
21 The Trial Chamber in the Krajisnik case was also conscious that
22 to find JCE liability the members must share a common purpose, not merely
23 have the same purpose, trial judgement 884. And the Trial Chamber
24 understood that it had to determine whether the crime was part of the
25 common purpose, and in trial judgement 1082, accepted indicia from which
1 this can be incurred. This included whether the principal perpetrators
2 were tools of the JCE, whether they cooperated with members of the JCE.
3 The Trial Chamber explained the connections and relationships
4 among the JCE members. They rely on each other's contributions and on
5 the contributions of non-members who have been procured to achieve the
6 common objective. This is consistent with the Brdjanin appeals
8 Applying these criteria correctly to the facts of this case, the
9 Chamber was entitled to infer that the crimes could be imputed to
10 Krajisnik. I will address first the crimes of the JCE members and then
11 the crimes of those who were not members of the JCE.
12 Crimes personally committed by JCE members could be attributed to
13 Krajisnik because of the purpose they had in common and the intent, the
14 shared intent, for the crimes. Mr. Kremer will deal with their crimes in
15 more detail.
16 The common purpose and shared intent is demonstrated through the
17 network of connections and cooperation between them. This shows that in
18 addition to the Pale leadership also the local component, the rank and
19 file component of the JCE had a purpose in common with Krajisnik, and the
20 Trial Chamber identified for those rank and file members of the JCE the
21 particular findings in -- and evidence in the footnote to trial judgement
23 Turning to the crimes committed by principal perpetrators who
24 were not JCE members. On the basis of the evidence, the Trial Chamber
25 reached the own reasonable conclusion when it found Krajisnik liable also
1 for those crimes carried out physically by people who were not members of
2 the JCE. The Trial Chamber was allowed to infer that they were used to
3 implement the common purpose as there were members of organisations or
4 structures which were headed by members of the JCE, or at least closely
5 cooperated with them. The Trial Chamber had established that the members
6 of the JCE were either heads of structures or organisations to which the
7 vast majority of principal perpetrators belonged such as the military,
8 the JNA, the VRS, the MUP, the TO, paramilitary units, or political
9 structures including the Crisis Staffs. So it could infer that the
10 principal perpetrators were used when carried out crimes, particularly
11 given the magnitude of crimes and the pattern of conduct, the
12 similarities in the municipalities.
13 For those crimes where the principal perpetrators were not part
14 of these organisations such as armed local Serbs, the Trial Chamber was
15 justified by the massive record to conclude and articulated sufficiently
16 in its reasons in part 4 how they closely cooperated with members of the
17 JCE. That these armed locals were used by members of the JCE is the only
18 reasonable inference from the evidence of such close cooperation.
19 The clear findings in part 4, and I have cited some in the
20 beginning, show that the crimes committed by the principal perpetrators
21 were directed against non-Serbs and thus furthered the common purpose.
22 The Trial Chamber has not set out the specific link which regard
23 to each incident in each of the individual municipalities but it was not
24 required to do so. On the basis of the described cooperation between
25 those groups and with others the Trial Chamber was entitled to summarise
1 the findings on perpetrators as Bosnian Serb authorities or Bosnian Serb
2 forces, a term used to describe armed soldiers, paramilitary units,
3 police, and other armed persons in trial judgement 292.
4 The Trial Chamber described in detail in parts 2, 3, and 6 of the
5 judgement how the JCE members took over and established structures and
6 organisations and cooperated with them. The findings in part 4 show the
7 close cooperation among organisations and with others outside these
8 organisations. And in light of the massive scale of the crimes committed
9 by those in the structures which followed similar pattern, the
10 Trial Chamber was not required to undertake an additional specific
11 analysis with regard to the links between the principal perpetrators and
12 the JCE members.
13 Crimes were committed on a massive scale immediately as the
14 takeover started. Ethnic cleansing occurred in a relatively short time
15 period in all 35 municipalities --
16 THE INTERPRETER: Would counsel please slow down.
17 MS. GOY: -- similar acts - I apologise - in all municipalities
18 and the acts in all municipalities were coordinated. The mere scale of
19 crimes, approximately 3.000 killings and the forcible removal of more
20 than 100.000, shows the necessary participation and cooperation of
21 various groups and shows planning at all levels.
22 The Trial Chamber specifically found that this required the
23 involvement of the Bosnian Serb authorities on the central, regional, and
24 municipal level. Trial judgement 710. This leaves no other reasonable
25 conclusion than that the JCE members used the principal perpetrators.
1 The Trial Chamber explained further in detail how a core group of
2 JCE members, the Bosnian Serb leadership, developed the plan to
3 ethnically recompose the territories by expelling non-Serbs and
4 drastically reducing their numbers and how they used the structures and
5 organisations to do so. They used an armed population which could deploy
6 units locally and the support and cooperation of the JNA. Trial
7 judgement 925.
8 They thus first relied on the JNA and then set up a Bosnian Serb
9 army, the VRS, whose plan of action was broadly formulated by the
10 leadership. Trial judgement 994. They created a Serbian MUP which was
11 used in combat and for mopping up operations. Trial judgement 255. They
12 used paramilitaries to terrorise the population. Trial judgement 979.
13 They exerted central influence on the municipal level through the
14 Crisis Staffs. Trial judgement 267. And the Crisis Staff functioned as
15 a coordinating body between the leadership and the municipal level on the
16 one hand and between the forces on the ground, the police, the military,
17 and the paramilitaries on the other hand. And Krajisnik and Karadzic
18 further communicated the ideas of the leadership to the Bosnian Serbs
19 directly. Trial judgement 1001.
20 To achieve the common purpose across the indictment
21 municipalities, the Pale-based leadership consolidated central authority
22 and by using these centralised structures, the Pale leadership and the
23 local representatives on the ground could better coordinate and cooperate
24 in carrying out the common purpose. The members of the JCE thus made
25 sure that the purpose would be carried out by putting in place and using
1 these organisations and structures which were, as the Trial Chamber found
2 in paragraph 1120, instrumental for the commission of the crimes. They
3 thus allowed -- thus allowed them to either directly through
4 subordination or indirectly through close cooperation get the principal
5 perpetrators to carry out the crimes in pursuance of the common purpose.
6 Before handing over to Mr. Kremer, I would like to briefly
7 address one legal issue with regard to joint criminal enterprise in this
8 form. JCE is a form of committing under 7(1) even when the principal
9 perpetrators are not members of the JCE. Only committing liability
10 properly reflects the criminality of the JCE members. A group of people
11 who get together with the common purpose which amounts to or involves the
12 commission of crimes with a shared intent constitute a greater danger
13 than people acting alone. They are able to achieve criminal results on a
14 scale which they would never be able to realise alone, such as the ethnic
15 cleansing of 35 municipalities in Bosnia.
16 It is the manifestation of this greater danger which merits the
17 designation as committing, and JCE has thus correctly and repeatedly
18 characterised as commission by the Appeals Chamber, for example, in could
19 Kvocka, paragraph 80, and in the Vasiljevic appeals judgement, paragraph
21 Further, the Appeals Chamber in Milutinovic considered that the
22 high mens rea, the shared intent of the members of the JCE means that
23 they cannot be regarded as mere aiders and abettors, rather, that JCE has
24 to be regarded as a form of commission. That's the decision on
25 Dragoljub Ojdanic's motion challenging jurisdiction, joint criminal
1 enterprise, of the 21st of May, 2003, paragraph 20.
2 And the two reasons why JCE has to be committing, the high mens
3 rea and the manifestation of the greater danger, do not change when the
4 principal perpetrators are not members of the JCE but, rather, used by
5 members of the JCE. They still have to have the high mens rea, the
6 shared intent, and the ability to commit crimes on a larger scale is even
7 enhanced when others are used or instrumentalised to carry out the common
8 purpose. Liability under JCE thus remains a form of committing even when
9 the principal perpetrators are not JCE members.
10 Unless Your Honours have questions, I would hand over to
11 Mr. Kremer who will address the question of link in more detail.
12 JUDGE POCAR: Yes, Judge Shahabuddeen.
13 JUDGE SHAHABUDDEEN: Ms. Goy, I have to admit that I tend to
14 commit this sin of summarising in my head what I've listened to, and
15 that, of course, could lead to the dangers of oversimplification, so
16 correct me if my understanding of your position is wrong.
17 In answer to the Appeals Chamber's questions concerning the link,
18 you have taken the position that there are two sets of crimes, crimes
19 committed by members of the JCE and crimes committed by non-members of
20 the JCE. Then you would see, so I understand, no necessity to prove link
21 where the former are concerned. You would only see a necessity to prove
22 a link where the latter are concerned, and this link you would prove by a
23 process of inferences. You would say, so I understand you to say, that
24 these non-members were so closely related to the JCE that they must have
25 acquired their instructions from the JCE, including the appellant.
1 Well, would there be a question this way as to the relationship
2 between an appeals court and a trial court so far as inferences are
3 concerned? Are we at liberty here to treat the position de novo and to
4 make our own inferences, or are we bound in any way by the inferences
5 made by the Trial Chamber?
6 MS. GOY: Thank you, Your Honours. I'd like to answer the
7 question in two parts. First, I'd like to address the first part with
8 regard to whether our position is that there is no link requirement or no
9 requirement to establish a link where a member of the joint criminal
10 enterprise commits the crime.
11 In order to impute liability for that crime to the accused, one
12 has to establish a link but the link is a different type of link. The
13 link is established through finding that this JCE member, the principal
14 perpetrator, had a common purpose with the accused and that they shared
15 the intent together, and when then the JCE member commits the crime in
16 furtherance of the common purpose, the fact that they have the purpose in
17 common and share the intent constitutes the required connection to impute
18 the crime.
19 With regard to the second category of cases where crimes are
20 committed by principal perpetrators who are not members of the JCE, we
21 agree that the -- on a -- on appeal what matters is to satisfy yourself
22 that the inferences that the Trial Chamber drew were reasonable
23 inferences, so that it is not for Your Honours to establish the link.
24 The link has been established by the Trial Chamber even implicitly
25 through the fact that they have convicted Krajisnik for those crimes, and
1 in our opinion, these were reasonable, even the only reasonable
2 inferences in these cases where you have the vast majority of principal
3 perpetrators in structures headed by members of the joint criminal
4 enterprise and for those who were not in structures on the basis of this
5 close cooperation throughout different municipalities in light of the
6 pattern used, that they were actually used by the members of the joint
7 criminal enterprise.
8 JUDGE POCAR: Judge Meron.
9 JUDGE MERON: I have two questions to you. The first one draws
10 significantly on the question asked by my distinguished colleague
11 Judge Shahabuddeen. In your argument you pointed out that the majority,
12 perhaps the great majority of crimes in this case were committed by
13 persons who were not members of the JCE. So my question is: Was the
14 Trial Chamber not required under our jurisprudence, specifically
15 Brdjanin, to systematically make findings imputing to a member of the JCE
16 or to Mr. Krajisnik, assuming that he's a member, crimes committed by
18 I must say that I have not been persuaded that this has been done
19 in a systematic and specific way, and I am somewhat troubled by your
20 statement with regard to inferences which would be adequate in that
21 respect, inferences based primarily on close relationship with members of
22 the JCE.
23 My second question pertains to the question of protected speech,
24 political speech. We have had extensive argument about it earlier today.
25 Now, in -- with regard to political speech, it doesn't have to be
1 established that political statements which otherwise would be protected
2 were clearly designed to achieve an illegal purpose, and it will be
3 helpful in that respect if the Prosecution could point to a specific
4 statement or action by Mr. Krajisnik which would clearly reflect intent
5 to advance common criminal purpose.
6 Thank you.
7 MS. GOY: First turning to your first question, the Trial Chamber
8 has, though not explicitly in the findings on Krajisnik's responsibility,
9 established the links in detail with regard to each incident, but from
10 a -- reading the judgement as a whole, through the fact that in the parts
11 2 and 3 of the judgement they have established the -- said how the JCE
12 members established the structures and who was in the JCE members, and
13 through the fact of how these facts were then used in the implementation
14 of the common plan. That, from our view, allows the inference and is in
15 fact the only reasonable inference that the physical perpetrator, those
16 in the structures and those closely cooperating with the structures were
17 carrying out crimes in pursuance of the common purpose.
18 And the Brdjanin appeals judgement, by setting out that the link
19 has to be established on a case-by-case basis and that it can be
20 established, inferred from the circumstances of the case such as close
21 cooperation allows for such an approach.
22 Turning to your second question, the protected speech. As
23 mentioned in the beginning of my submissions, one has to distinguish
24 between the actus reus
25 JCE member, and once that is made with the shared intent, with the high
1 mens rea, that would be sufficient as a contribution as long as it is
3 And we have addressed in our response to Mr. Krajisnik and in the
4 response to amicus the -- our submissions why the Trial Chamber's
5 findings on Krajisnik's shared intent were reasonable findings, and I'm
6 not in a position at the moment to point Your Honours to something
7 specific. I can just refer you to the arguments that we have made in our
8 brief with regard to the mens rea.
9 JUDGE POCAR: Before you take the floor, Mr. Kremer, I see we are
10 approaching the pause at 12.00. Probably it's inappropriate for you,
11 unless you want to start for five minutes. It will probably be more
12 beneficial for you to start -- to have the pause now, the break now, and
13 start immediately afterwards.
14 MR. KREMER: That would be very helpful. Thank you, Your Honour.
15 JUDGE POCAR: Not to break too early your submission.
16 So we can break now for 15 minutes and reconvene at 10 past 12.00
17 for the continued response of the Prosecution.
18 --- Recess taken at 11.57 a.m.
19 --- On resuming at 12.15 p.m.
20 JUDGE POCAR: I will now give the floor to the Prosecution, to
21 Mr. Kremer for the submission of the Prosecution in response, please.
22 MR. KREMER: Thank you, Mr. President. I'm going to continue on
23 the answer to the links question which was posed by Your Honours in the
24 Scheduling Order, and I will follow up on what Ms. Goy has stated in
25 terms of the legal structure and give it some factual substance.
1 Our analysis of the factual findings in part 4 and the legal
2 findings in part 5 of the judgement revealed that the crimes are linked
3 to Krajisnik and other JCE members by direct commission by JCE members,
4 as Ms. Goy has commented, and through the JCE use of the principal
5 perpetrators to commit the crimes.
6 Our analysis did reveal a few errors and ambiguities in the
7 judgement. None involved the question of link and we filed with the
8 Chamber yesterday a list of explanations.
9 Our analysis showed that the crimes were committed either by JCE
10 members or by persons used by JCE members. I will discuss both links to
11 crimes committed by JCE members and principal perpetrators used by JCE
12 members but will spend most of my time on principal perpetrators used by
13 JCE members. The final part of my submission will address three
14 persecutory acts committed within the general framework of the common
15 purpose where the link is implicit.
16 First, there are multiple examples where a JCE member personally
17 committed crimes. All these crimes can be imputed to Krajisnik because
18 Krajisnik and the JCE members who participated in the crimes shared the
19 common objective. Their crimes became his crimes.
20 Ljubisa Mauzer Savic, leading SDS figure in Bijeljina and
21 commander of the Serb National Guard paramilitary unit, on May 7, 1992,
22 at least six Muslim men who had been hiding in Mucici, a part of Brcko
23 town, were shot dead by Mauzer and soldiers presenting themselves as
24 Seselj's men. Paragraph 327. For other crimes committed by Mauzer, go
25 to paragraph 305 and paragraph 325.
1 Mirko Blagojevic, leader of the Serb radicals paramilitary group,
2 326 of the judgement. On May 4th, 1992
3 detained at the fire station by JNA soldiers were beaten by Blagojevic.
4 Branko Grujic, president of Zvornik SDS and Crisis Staff,
5 paragraph 367. On April 9th, 1992
6 beaten by Branko Grujic.
7 Brothers Dusan Repic Vukovic and Vojin Zuco Vukovic, leaders of
8 the Yellow Wasps paramilitary unit, paragraph 372. The Yellow Wasps
9 headed by the Vukovic brothers Repic and Zuco arrived at the Dom Kulture
10 on 11 June and killed at least five detainees. One man had his ear cut
11 off. Others had their fingers cut off, and at least two men were
12 sexually mutilated. Repic's men forced detainees to eat the severed body
13 parts, killing two detainees who could not bring themselves to do so.
14 On June 27th, Repic returned to Dom Kulture alone and shot 20
15 detainees dead and wounded 22 others.
16 Vlado Vrkes, president of the local Banja Luka SDS. Paragraph
17 509. On 3 April, the Crisis Staff imposed discriminatory measures on
18 Muslims in Banja Luka. SDS president Vrkes, accompanied by SOS members
19 and the Serb police, forced out the Croat director of the municipal SDK
20 appointing a Serb in her place.
21 Ratko Radic, SDS municipal president of Hadzici. Paragraph 547.
22 In mid-July 1992, Ratko Radic transferred Witness 141 and her sister to
23 the premises of the factory outside Hadzici and were forced to work. At
24 the factory, Radic raped the sister regularly.
25 Jovan Tintor, member of the SDS board -- Main Board and president
1 of Vogosca Crisis Staff. Paragraph 598. On 1 May 1992, a Muslim police
2 officer in Sarajevo
3 were taken to the police station in Vogosca town where Jovan Tintor
4 interrogated and beat them.
5 Dragan Gagovic, Foca police chief and Dragoljub Kunarac,
6 commander of a reconnaissance group within the local Foca Tactical Group.
7 Paragraph 640 of the trial judgement. Here Muslim civilians were
8 detained at Foca High School and Partizan Hall which was guarded by
9 police officers. Serb soldiers or policemen, including the chief of
10 police Dragan Gagovic, would come to these detention centres, select one
11 or more women, take them out and rape them. Some of these women were
12 also taken out of these two detention centres by Serb soldiers, including
13 Dragoljub Kunarac, and subjected to sexual assaults. During one rape,
14 Kunarac expressed the verbal and physical aggression, his view that rapes
15 against women were one of the many ways which the Serbs could assert
16 their superiority and victory over the Muslims.
17 Krsto Savic, commissioner for the SAO Eastern Herzegovina.
18 Paragraph 669 of the trial judgement. On 16 June 1992, soldiers in
19 camouflage uniform led by Krsto Savic entered the house of a Muslim
20 resident in Nevesinje municipality. During this operation, Savic shot
21 Redzep Trebovic in the leg. The Serb soldiers held his wife back from
22 helping him. When the family was allowed to bring him to the hospital
23 four hours later, he had died from the injury. His house was burnt down.
24 Gojko Klickovic, president of the Bosanska Krupa War Presidency.
25 Paragraph 398 of the judgement. On 28 April 1992, Klickovic ordered the
1 commanders of three battalions, of the 1st Podgrmec Brigade to
2 immediately evacuate Muslim population from the territory under their
3 control. Pursuant to his order on 1 May 1992, the Executive Committee of
4 Arapusa commune jointly with the local refugee committee and the
5 battalion command issued instructions resulting in the unlawful detention
6 of the 460 to the village of Fajtovici
7 1.200 persons were already detained.
8 These examples of JCE members committing crimes not only
9 establish the connection between the JCE members' crime and Krajisnik but
10 also show the JCE members used non-members to commit crimes to further
11 the common purpose. They also show the type and style of leader who
12 joined the JCE and who played key roles in implementing the common
13 objective on the ground.
14 Let us now look at principal perpetrators who are not JCE
15 members. They fall into two groups, those who were members of an
16 organisation headed by a JCE member and those who were not.
17 I will first review principal perpetrators who were not [sic] JCE
18 members but belonged to an organisation through which the JCE member used
19 them to commit crimes within the common purpose. Then I will discuss how
20 the various organisations work to achieve the common purpose before
21 finally discussing those non-JCE members who were not part of an
22 organisation but were used by JCE members to commit crimes within the
23 common purpose.
24 Ms. Goy has already raised the names of the organisations that
25 were used headed by JCE members; Crisis Staffs, the JNA, the VRS, the
1 MUP, the TO, and paramilitaries at the republican, regional and local
2 levels. The local politicians and the organisations of the TO, military,
3 police, and paramilitary through their commanders used their men to
4 commit crimes pursuant to the common objective.
5 Our position is, as Ms. Goy has stated, that the Trial Chamber
6 was entitled to find that the JCE used them through this straightforward
7 organisation -- organisational and structural link.
8 From our analysis of parts 4 and 5 of the judgement and the
9 evidence underlining the crime findings, I have prepared a map of
10 Bosnia-Herzegovina showing in a different colour each organisation; the
11 TO, the paramilitaries, the JNA, VRS, MUP, and the Crisis Staffs. If you
12 could turn on your monitors.
13 The first -- first group of -- the first group to be entered is
14 the TO, and this shows the range of TO criminal activity during -- during
15 the period. The low population on the map is due in part to the fact
16 that the TO was incorporated in some municipalities into the JNA and
17 in -- and later once the VRS was formed into the VRS.
18 Secondly, we'll add paramilitaries. You'll see that the
19 paramilitaries were more active than the TO in committing crimes. The
20 paramilitaries, like the TO, when the VRS was established also became
21 part of the VRS.
22 The MUP is the next one to be added -- I'm sorry, the JNA. These
23 are the JNA or the VRS are carrying out activities throughout the
24 regions. If we add the MUP, you will see that their population is also
25 in virtually all of the municipalities. And finally the Crisis Staffs
1 that were the glue between or behind the fabric of ethnic cleansing in
3 The map illustrates that all of these groups were involved in
4 crimes in the indictment municipalities as shown on the map, and it also
5 serves to illustrate, the kind of intra- and inter-organisational
6 cooperation that was taking place during the indictment period, in
7 particular at the time when the municipalities were being taken over.
8 The Prijedor municipality, which Your Honours know well from the
9 Stakic case, also shows how JCE members used non-JCE who were not members
10 of the organisation.
11 First let me start with -- refer you to paragraph 470, and I'm
12 just summarising very quickly the events to show the scale and system
13 which is typical of not only Prijedor but the other municipalities.
14 The JNA and the police took control of Prijedor town on 30 April
15 1992. Check-points were set up, important buildings were occupied,
16 important organs and companies were taken over. Non-Serb police were
17 dismissed. SDS removed the SDA from functions in the municipality.
18 471, the Crisis Staff assisted by soldiers or paramilitaries then
19 expanded the restrictive measures imposed on the non-Serb population.
20 The SDS controlled the propaganda machinery and how searches of the
21 non-Serb houses were conducted.
22 474, the 1st Krajina Corps of the VRS and the MUP continued
23 mopping up operations from late May 1992 onwards. Paramilitaries fought
24 alongside the VRS. Another JCE member appears here, Slobodan Kuruzovic,
25 member of the SDS Muncipal Board and the local TO commander was in charge
1 of Trnopolje camp. He announced to his prisoners that the Serb plan was
2 to reduce the Muslim population to 10 per cent, then 2 per cent of the
4 478, on 26 May 1992
5 Prijedor surrounded the village of Trnopolje
6 military police placed the remaining local residents in the elementary
8 487, in three large detention facilities, Omarska, Keraterm and
9 Trnopolje guarded by soldiers, police forces, TO, or a combination
10 thereof, teams of military and civilian authorities screened detainees.
11 The detainees were abused, beaten and killed. Detainees -- I'm sorry,
12 the detainees were abused, beaten and killed by the guards and members of
13 local organisations and local Serbs who were routinely allowed into the
14 camps. Thousands of people were detained there in cramped conditions
15 between May and November 1992 by armed soldiers under the control of
17 From Trnopolje detainees were transported out of the
18 municipality. That's 492.
19 493, camp authorities in Trnopolje did not distribute food, and
20 on occasion Serb soldiers beat and killed Muslim and Croat detainees. In
21 one such incident, Serb soldiers took 11 detainees to a maize field and
22 shot them dead. Moreover, soldiers coming from outside the camp and
23 Kuruzovic, the camp commander, raped the female detainees.
24 And finally 494, on 21 August, 154
25 placed on buses and taken to Koricanske Stijene in Skender Vakuf
1 municipality where they were executed by police and uniformed soldiers.
2 That is the extent of the cooperation between the structures. That is
3 the extent of the cooperation and coordinated effort between the leaders
4 of the various structures to ethnically cleanse Prijedor of its Bosnian
5 Serb -- or Bosnian Muslim and Bosnian Croat minorities.
6 Coordinated and cooperated -- cooperative action typified the
7 method of operation to achieve the common purpose. Not only did these
8 organisations work together within municipalities, they also worked
9 together across several municipalities. Deportations and forcible
10 transfers frequently required coordination between organisations
11 operating in several municipalities to ensure a successful expulsion of
12 the minorities.
13 One brief example of this at the state and municipal levels will
14 suffice. More than 400 detainees at the Vuk Karadzic school in Bratunac
15 operated by the MUP were transferred to a detention facility in Pale to
16 be exchanged for Serb prisoners. Paragraph 315.
17 On 15 May 1992
18 detainees from Bratunac be transferred to Visoko in the territory of
19 Bosnia-Herzegovina outside Bosnian Serb control. Deric ordered the
20 Sokolac Crisis Staff to provide three trucks for their transportation,
21 the Pale Crisis Staff to arrange their escort, and the Ilijas Crisis
22 Staff to allow the convoy to pass. The Bosnian Serb Central Exchange
23 Commission processed their transfer. Trial judgement 151, 1035, 156, and
25 This is a cooperation at the state and local level involving the
1 prime minister and the Central Exchange Commission as well as local
2 municipality leaders through which this convoy would have passed.
3 Before I turn to the second type of principal perpetrators, those
4 non-JCE members who are not part of the organisations, I propose briefly
5 to discuss how the JCE members used their organisations and their
6 connections of the -- with structures to the Pale-based leadership.
7 The Pale-based leadership component directed and controlled the
8 JNA, the VRS, the TO, the MUP, and the paramilitaries at the republican
9 level, and at the local level control rested with individual politicians,
10 military and police commanders, and paramilitary leaders and others which
11 the Trial Chamber called the JCE rank and file. I will discuss each
12 organisation briefly, but before I do so, I want to stress that the main
13 findings on structures are found in part 3 and part 6 of the judgement
14 and are useful in understanding just how tightly controlled these
15 structures were by the state and used by the state in order to achieve
16 the common purpose that was defined and communicated and eventually
17 implemented through the use of the structures and the people who worked
18 within them and who cooperated with them.
19 I'll start with the TO. The TO as the municipal defence force
20 had close links with Crisis Staffs. Crisis Staffs appointed and
21 dismissed TO commanders and received reports from TO units.
22 Crisis Staffs issued orders to the TO units on military matters.
23 Crisis Staffs, or their members, assumed a very direct military role and
24 got involved in military activities. Crisis Staffs also provided various
25 forms of general assistance to the TO, calling for mobilisation within
1 their municipalities and providing financial and other assistance.
2 Paragraph 285.
3 Already on 15 April 1992
4 commander of the Bosnian Serb TO to supervise and control local TOs as an
5 interim measure pending the creation of a Bosnian Serb army. Paragraph
7 When the JNA formally withdrew from Bosnia-Herzegovina, the TO
8 units became part of the VRS. Local Crisis Staffs often remained
9 responsible for logistical support to the TO. Paragraphs 285 and 186.
10 TO commanders who were JCE members implemented the common
11 objective by using members of their organisation. Take, for example,
12 Marko Pavlovic, Serb TO commander in Zvornik. Working together with
13 other JCE members, Branko Grujic, president of Zvornik SDS and
14 Crisis Staff, and Jovan Mijatovic, member of the Zvornik Crisis Staff and
15 deputy to the Bosnian Serb Assembly, to displace the Muslims of Kozluk.
16 On the night of 20 June, the Serb TO under the command of
17 Marko Pavlovic attacked Kozluk. On 26 June, a large number of Serb
18 soldiers, TO, and paramilitaries entered Kozluk in tanks and other
19 military vehicles. Among the group were Branko Grujic, Pavlovic, and
20 Jovan Mijatovic. They informed the Muslims that they had one hour to
21 leave or they would be killed. On the same day, a convoy of vehicles
22 organised by the Serbs who had attacked and taken over Kozluk,
23 transported approximately 1.800 persons out of the municipality to
25 Another example involving destruction of property involves
1 Nedeljko Davidovic, Serb captain of the TO at Banja Luka working together
2 with JCE member Dragan Djuric, deputy to the Bosnia-Herzegovina and
3 Bosnian Serb Assemblies. I won't get into it but it's found at paragraph
5 Let me move to paramilitaries. Members of the Bosnian Serb
6 leadership invited paramilitaries and appreciated their services.
7 Plavsic sent letters to Seselj, Arkan and Jovic, together all who wanted
8 to fight for Serbianhood. Paragraph 938.
9 Military leaders are members of the JCE -- or paramilitary
10 leaders are members of the JCE. Individual paramilitary leaders are
11 identified by name in trial judgement 1088. Arkan, Blagojevic, Kusic,
12 Mauzer, Milankovic, and Vukovic, as -- and many of those names you heard
13 as people who committed crimes themselves.
14 The Bosnian Serb leadership used paramilitaries opportunistically
15 to terrorise the Muslims and Croats in order to achieve the common
16 objective. Notwithstanding their awareness of the serious problems posed
17 by the paramilitary formations in various municipalities as well as their
18 unruly behaviour. Judgement 979. But instead of suppressing these
19 groups, they incorporated them into the regular VRS units. Some groups
20 invited by the SDS local boards, Crisis Staffs, and regional governments
21 were accepted as fighters for the Serbian cause despite their record of
22 lawlessness and ruthless efficiency. Others were tolerated as long as
23 they did not pose too much trouble for the Bosnian Serb legitimate
24 authorities. Paragraph 215 and 979.
25 Local SDS boards, Crisis Staffs, and regional SAO governments
1 also invited and assisted paramilitary groups, for example, the
2 Yellow Wasps, the Red Berets, Mauzer's men, and Arkan's men operating in
3 North-eastern Bosnia-Herzegovina, Bijeljina, Brcko, and Zvornik. Trial
4 judgement 215.
5 Local paramilitary groups also formed within municipalities.
6 They participated in the takeover crimes and later crimes in a number of
7 municipalities and worked closely with police, political and/or military
8 police organisations. For example, in furthering the common objective,
9 local politicians and the Crisis Staff in Cajnice worked in close
10 cooperation with the police, the military, and local paramilitary units
11 like the Blue Eagles which had clear links to the local Serbian
12 authorities. Trial judgement 618.
13 When the JNA withdrew from Visegrad on May 19th, the town was
14 under the control of the local Serb authorities which had an exclusively
15 Serb police. The local Serb authorities permitted paramilitaries to
16 operate within the town. Paragraph 696. Their use to further the common
17 objective is demonstrated by their actions. Paramilitaries subjected the
18 Muslims to mistreatment and humiliation, to rapes and beatings. Serb
19 forces, which included paramilitaries, killed more than 266 non-Serb
20 civilians, mostly Muslims in Visegrad in June 1992 and the following
21 months. Trial judgement 701. More than 200 are categorised as
22 disappearances by the adjudicated facts which the Trial Chamber inferred
23 was committed by Serb forces. Trial judgement 698 and 701.
24 JCE member and military leader Milan Lukic's local paramilitary
25 unit -- local paramilitary leader used his unit to kill approximately 66
1 people by locking them in a house and setting it on fire and shooting
2 those who tried to escape. Paragraph 699. They were also used to
3 appropriate property. 696. Their crimes fit the pattern and advanced
4 the common plan to terrorise the population into leaving. The police
5 participated in expulsions. The cooperation between the local
6 authorities in the municipality with the paramilitaries was so efficient
7 that within a few weeks Visegrad was almost completely cleansed of its
8 Muslim civilians. Paragraph 700.
9 I've discussed earlier the crimes committed by JCE members and
10 paramilitary leaders like Mauzer, Blagojevic, the Vukovic brothers, and I
11 refer Your Honours to the paragraphs that I've cited concerning their
12 crimes because it also shows how they used their paramilitary units to
13 commit crimes.
14 Turning to the army. With regard to the crimes committed by
15 members of the army, the Trial Chamber distinguished before the period --
16 or the period before and after the establishment of the VRS on 12 May
18 When the takeover started in April 1992, the JNA, together with
19 the non-enlisted Bosnian Serb men of fighting age, were the Serbian army
20 on the ground. Judgement 925. The cooperation between the JNA and the
21 Bosnian Serb leadership was not a closely guarded secret. Paragraph 946.
22 Krajisnik knew of the JNA's cooperation in the takeover of power.
23 Paragraph 947. The Trial Chamber explicitly rejected Krajisnik's claim
24 that the JNA was neutral prior to 12 May 1992. Paragraph 192.
25 As stated in March 1992 by the JNA 2nd Military District
1 commander, the leadership of the Serb people and all Serbs are ready for
2 war. Paragraph 42.
3 JNA commanders, JCE members used soldiers, non-JCE members under
4 their control to further the common objective. Take, for example, JCE
5 member Lieutenant Colonel Tadija Manojlovic, a JCE officer who at the end
6 of April 1992 ordered JNA heavy artillery, rocket launchers,
7 anti-aircraft guns and tanks to be fired every evening on targets in
9 early May 1992, Serb forces controlled Ilidza. Paragraph 553.
10 JCE member General Jankovic, commander of the 17th Corps of the
11 JNA, was involved in the takeover of Bijeljina and the unlawful detention
12 of about 3.000 civilians, mainly Muslims, at the Bijeljina barracks and
13 Patkovaca barracks. That's in paragraph 301.
14 Another JCE member, Captain Reljic, JNA commander, participated
15 in the takeover of Bratunac municipality. On 16 April, the TO in
16 Bratunac was mobilised and in the following days, Arkan's and Seselj's
17 paramilitary units and the JNA unit under the command of Captain Reljic
18 arrived in the municipality. While the JNA and the TO began disarming
19 Muslim villagers throughout the municipality, the paramilitaries harassed
20 locals and pillaged abandoned Muslim homes.
21 Most of the Muslim leadership left Bratunac municipality for
22 Srebrenica after receiving threats from these Serb paramilitary units.
23 This effectively surrendered Bratunac to Serb control. Paragraph 311.
24 The VRS was established, as I've already said, on 12 May 1992, at
25 a session of the Bosnian Serb Assembly. Krajisnik promoted the creation
1 of the VRS. Ratko Mladic was appointed as commander of the VRS
2 Main Staff. Paragraph 194. Mladic was directly subordinated to the
3 Presidency. The same paragraph. Mladic as commander of the Main Staff
4 was a member of the JCE. His military commanders on the ground were also
5 found to be members of the JCE.
6 The VRS Main Staff kept members of the Presidency well briefed on
7 the military situation throughout the Bosnian Serb republic. The
8 political leadership passed orders to the military officers, including
9 oral orders and orders given to military officials attending Presidency
10 sessions. Paragraph 206.
11 The VRS was involved in the full range of crimes committed during
12 attacks and detention. Soon after its establishment, the VRS issued
13 written orders for the detention of all Muslim men fit for military
14 service. Paragraph 1038.
15 The use by a JCE member of the VRS to implement the common
16 purpose is illustrated by the actions of JCE member Major
17 Svetozar Andric, commander of the VRS 1st Birac Brigade, whose brigade
18 was active in Zvornik in April and May 1992.
19 Around 28 May, between 400 and 500 Muslims in Divic village,
20 including women, children, and elderly persons, were forced under -- onto
21 buses by members of the Yellow Wasps and told that they would be taken to
22 Muslim territory. Andric issued an order on 28 May 1992, from the
23 command of the VRS 1st Birac Brigade to the Zvornik TO: "The moving out
24 of the Muslim population must be organised and coordinated with the
25 municipalities through which the moving is carried out. Only women and
1 children can move out while men fit for military service are to be placed
2 in camps for exchange." Paragraph 1043.
3 Another VRS Commander Marko Adamovic, a commander of the VRS
4 military police unit operating in the Kljuic region, around 1 June 1992,
5 Adamovic with approximately 100 armed Serb police officers arrived in the
6 Muslim village of Provo
7 children were ordered to line up facing the wall of a house. Several
8 residents were beaten and between five and eight men were killed.
9 Adamovic ordered the soldiers, through a megaphone, to set the village on
10 fire and to kill the women and children. When the male residents were
11 led out of the village in the direction of Peci, an explosion and
12 gunshots were heard coming from the village and the Serb soldiers opened
13 fire on the civilians who remained. A soldier threw a grenade into the
14 crowd killing several women. As a result of the shooting, about 38
15 people were killed, including children and at least one house was burned
16 town. Paragraph 450.
17 Another brief example, General Momir Talic, commander of the 1st
18 Krajina Corps, controlled Manjaca camp in Banja Luka. The crimes in
19 Manjaca camp which held from several hundred to 3.000 detainees were made
20 possible only through using his VRS soldiers and others including local
21 Serbs willing to assist. 383 to 384.
22 The other VRS-controlled detention camps described in the
23 judgement were no different.
24 Moving to the police and the scene repeats itself again and again
25 and again. There is complete control by JCE members over what is going
1 on and they are using their members, their police officers, their
2 soldiers to commit the crimes to further the common purpose.
3 Mico Stanisic, minister of interior and head of the police, was a
4 named member of the Pale-based leadership component of the JCE. 1087.
5 Under Stanisic were regional CSBs and municipal SJB police commanders.
6 Local police commanders are included as JCE members and Simo Drljaca and
7 Stojan Zupljanin are specifically named. The Trial Chamber found in
8 paragraph 255 that MUP forces were involved in criminal activities in the
9 indictment municipalities ranging from mere war profiteering to the
10 running of detention centres where Bosnian Muslims and Bosnian Croats
11 were subjected to ill-treatment. In the course of 1992, the Bosnian Serb
12 MUP became heavily involved in the operation of detention centres.
13 Paragraph 249.
14 Units also participating in forcing non-Serbs to leave
15 municipalities that ought to become Serb territory from April to December
16 1992, MUP police officers were also extensively engaged in combat under
17 the VRS.
18 The MUP leadership also participated in the common criminal
19 purpose. JCE member Vitomir Popic, the police commander of Gacko, used
20 his officers and local Serbs to commit unlawful imprisonment, murder,
21 rape and torture. In late May and early June 1992, the local police
22 under commander Popic together with local leader of the White Eagles
23 began arresting Muslims and taking them to a detention camp in Bjelica
24 municipality. In early June, there were around 120 Muslim detainees at
25 the Gacko police station. Some of the detainees were beaten frequently.
1 The conditions of detention were harsh.
2 On 3 July 1992
3 men led by police commander Popic. On 4 July 1992, in the same police
4 station, Popic forced a detainee to watch the rape of his own wife by a
5 Serb man from the Munja unit of the Red Berets assisted by two other Red
6 Berets. Paragraph 656.
7 Those are the military groups but the political structures or the
8 political people in the Crisis Staffs and in the SDS party were no
9 different in terms of their conduct. They, too, were connected from --
10 to the Bosnian Serb leadership through the various members placed there
11 by the Bosnian Serb leadership.
12 SDS policies and SDS members played an important role in the
13 implementation of the common plan. The Pale-based leadership were all
14 senior SDS politicians. Krajisnik was a member of the SDS Main Board and
15 president of the Bosnian Serb Assembly. Radovan Karadzic was president
16 of the SDS. Local politicians were to be -- were found to be members of
17 the JCE. Many were specifically named in trial judgement 1088. Many of
18 them were SDS deputies or SDS Main Board members.
19 One of Krajisnik's contributions to the JCE was formulating,
20 initiating, promoting, participating in and/or encouraging the
21 development and implementation of SDS policies intended to advance the
22 objective of the joint criminal enterprise.
23 The SDS Crisis Staffs were transformed into republican organs on
24 4 April when the SNB ordered their activation and instructed that the TO
25 and the reserve police officers be put in readiness. Paragraph 263.
1 The SDS's coordinating role of and dominant influence over
2 municipal Crisis Staffs is reflected by the fact that almost every
3 Crisis Staff in the municipalities covered by the indictment included at
4 least one deputy from the Bosnian Serb Assembly or a member of the
5 SDS Main Board. Paragraph 265 and 266.
6 The Crisis Staffs reported via the SDS Main Board, via the
7 Bosnian Serb Assembly, and individual leaders such as Karadzic and
8 Krajisnik and directly to the Bosnian Serb Presidency. Paragraph 270.
9 Municipal Crisis Staff actions were Pale-based leadership
10 actions. Paragraph 267 summarises it best by ensuring that at least one
11 Assembly deputy was a member of the municipal staff allowed the Bosnian
12 Serb leadership to exert a substantial amount of control and central
13 influence over them. The president of the Ilidza Crisis Staff perceived
14 this system as one of organisational subordination of the Crisis Staffs
15 to the president of the Assembly himself. I needn't remind you that this
16 was Krajisnik.
17 The Bosnian Serb leadership through party or republican organs
18 issued direct orders or instructions to Crisis Staffs which were received
19 and acted upon. Crisis Staffs in turn would cite orders and decisions
20 from regional and central organs as the basis for their actions. The
21 central republican authorities also supported Crisis Staffs materially
22 through loans, direct funding, and material including weapons and
23 ammunition. Judgement 140, 268, and 270.
24 The Bosnian Serb leadership further tightened its grip over the
25 municipalities on 10 June 1992
1 War Presidencies with War Commissions consisting of four members
2 including a state commissioner appointed by the Presidency. The state
3 commissioner would appoint the other members who would have to be
4 confirmed by the Presidency.
5 From July 1992, Krajisnik was the Presidency member in charge of
6 and its contact person for the war commissioners. Paragraphs 271, 274,
7 276, 182, and 277.
8 The Crisis Staffs were the glue that held together the machinery
9 working to achieve the common purpose. Under the dominant influence of
10 the SDS, they were the coordinating body between political, military, and
11 other forces in the municipality. Paragraph 266. They took control over
12 the takeover of municipality with the assistance of the TO, the
13 paramilitaries, the army, and/or the MUP. Taking control meant using
14 them to set up check-points, disarm the non-Serb population, establish
15 and enforce curfews, and a whole myriad of other discriminatory measures
16 against the non-Serb population to force them to leave the territory.
17 How the actions of political leaders furthered the common purpose is
18 illustrated by Nedjeljko Rasula, president of the Sanski Most
19 Municipal Assembly and deputy to the Bosnian Serb Assembly.
20 On 22 June, around 20 detainees from Betonirka prison camp were
21 taken to nearby Kriva Cesta where they were ordered at gunpoint by
22 soldiers in olive-grey uniforms to dig their own graves. A group of 10
23 persons, among them Rasula, sat at a picnic table nearby watching the
24 digging. When the detainees had finished, a soldier slit the throats of
25 all but three detainees who were taken back to the camp.
1 Then there is Dusko Kornjaca, SDS Crisis Staff president of
2 Cajnice, SAO Herzegovina deputy minister. "In June 1992, Serb
3 authorities destroyed the mosques." I am quoting from judgement 620.
4 "Serb authorities destroyed the mosques in the town of Cajnice
5 artillery and explosives. The SDS Crisis Staff president Kornjaca was
6 reported to be publicly enthusiastic about this action. Later in 1992,
7 he ordered the destruction of all other Muslim religious sites in order
8 to eradicate traces of the Muslim presence in Cajnice." Paragraph 620.
9 I also remind you of the other local and state political leaders
10 I mentioned under the people who committed JCE-member crimes, and what
11 this demonstrates is that Krajisnik had and was in the company of
12 SDS Main Board members, SDS Assembly deputies or Assembly deputies all
13 who were involved personally in the commission of crimes across the
14 municipalities. We're not focused on one municipality as an example.
15 These are representative of what was happening in every municipality and
16 the Trial Chamber chose to specifically name some of the JCE members and
17 name others more generally like a commander of a -- of the JNA or a
18 commander -- a local commander of the police as the person responsible
19 for the crimes. But what is clear from all of these examples is that all
20 of these leaders used their men to either personally commit crimes or to
21 commit crimes that furthered the common objective.
22 Let me now turn to the second type of principal perpetrator, not
23 a member of the organisation.
24 As has already been alluded to, JCE members sometimes used
25 persons who were not members of their structure to commit crimes. These
1 persons worked for, in concert, or in close cooperation with the
2 organisations. Ms. Goy referred to them as local Serbs, and so will I.
3 For example, Serb locals working as guards in and Serb locals
4 allowed into detention camps committed crimes against detainees. We've
5 seen several examples already. The Trial Chamber was entitled from the
6 evidence to infer that they were used by the JCE members responsible for
7 the camps.
8 As discussed earlier in the Keraterm, Omarska, and Trnopolje
9 camps run by the MUP and the VRS, detainees were executed and subjected
10 to severe mistreatment which included psychological abuse, beatings,
11 sexual assaults, and torture. The crimes were also committed by Serb
12 locals who were routinely allowed to enter the camps to abuse, beat, and
13 kill prisoners. Paragraph 487.
14 Another example of armed Serb locals supporting the JNA, VRS and
15 takeover mopping operations and committing crimes of murders, destruction
16 of property, et cetera, is found in paragraph 630. Outside the town of
17 Foca, Serb forces took over Muslim -- took over or destroyed Muslim
18 villages in the Foca municipality. The attacks continued until early
19 June 1992. The Serb forces consisted of military, police, paramilitary,
20 and sometimes Serb villagers. During attacks, Muslim houses and
21 apartments were systematically ransacked and burnt down. Muslim
22 villagers were rounded up or captured and sometimes beaten or killed in
23 the process. This is one of several examples of JCE members using
24 non-JCE members, Serb locals, to achieve the common purpose. They
25 weren't within the structure but they worked closely in cooperation with
1 the structure to achieve the goal of the common purpose.
2 Sometimes the connection between the JCE member and the Serb
3 locals is not so clear in the judgement paragraph where the reference is
4 found. As Ms. Goy has explained, the Trial Chamber was entitled to draw
5 inferences from the evidence underlying the entire paragraph, the entire
6 section on the municipality, or the other parts of the judgement to find
7 the link. The Trial Chamber did not need to specify every link for every
8 crime. In any case, the links between the crimes and the JCE members
9 become clear upon looking at the evidence that's cited in the judgement.
10 Let me provide an illustration from the Bratunac municipality,
11 paragraph 315. On May 10, 1992
12 Krasan Polje in the Vitkovici -- or near Vitkovici in Bratunac
13 municipality. On that day, over 500 Muslim men from villages in Bratunac
14 were detained in the Vuk Karadzic school. Detainees were severely
15 mistreated and beaten repeatedly. Dozens were killed by armed Serb
16 locals and members of paramilitary groups. Three guards forced all
17 detainees in a huddle in the section of the sports hall resulting in
18 seven or eight suffocating to death. Several men were taken off by the
19 guards and killed. About 50 detainees were beaten or shot to death by
20 the guards in the sports hall.
21 This paragraph identifies the principal perpetrators as armed
22 Serb locals, members of the paramilitary groups and guards.
23 You may ask: How was the Trial Chamber entitled to infer that
24 they were used by JCE members? The evidence footnoted provides the
25 answer. Exhibit P485 establishes that the head of the MUP was in charge
1 of the Vuk Karadzic school. Part of the school building was headquarters
2 for the Serb military forces. An armed soldier guarded the gym or sports
3 hall. P72 establishes that JNA reservists guarded the school. The link
4 is through the camp commander, the head of the MUP and the local
5 commander of the JNA.
6 The Serb locals in this example acted in concert or close
7 cooperation with the members of the army and police when they committed
8 the crimes furthering the common purpose. The JCE member heading the
9 organisation would have to authorise or permit their use. Neither they
10 nor the members of the organisation were punished or disciplined for
11 committing the crimes. In fact, they and the members of the organisation
12 committed these crimes again and again. They acted and were treated just
13 like the members of the organisation. Thus when they committed crimes,
14 the JCE member used them like members of his organisation.
15 My answer to your question applies to all of the crimes committed
16 by non-members. Our analysis shows that there is an answer and a link
17 through a structure, either directly or working with a structure for
18 every one of the crimes. There is a single factual finding, however,
19 where the inference is attenuated. An example is contained in a lengthy
20 paragraph in judgement paragraph 670. The paragraph describes many
21 crimes committed against a group of Muslims who fled Presjeka village in
22 Nevesinje municipality to the Velez mountains on 22 June 1992 after Serb
23 forces shelled their village. The finding in question is: "Sixteen
24 elderly persons who could not keep pace were left behind and were later
25 killed by a local Serb."
1 The evidence cited in the judgement does not provide more
2 information as to the link to a JCE member. The paragraph does not find
3 that the attacking and detaining forces -- or does find that the
4 attacking and detaining forces surrounding this event to be Serb forces,
5 including the VRS.
6 Under the circumstances in light of the evidence, it was
7 inferred, I believe, that the Trial Chamber held that the local Serb was
8 part of the attacking Serb forces. That is an inference -- that is the
9 only inference that is capable in light of the scantiness of the
10 evidentiary record, but that is the single problematic link that we were
11 able -- that we identified during the course of our review of every
13 Let me just very quickly deal with the final part of my remarks,
14 which is the way in which acts of --
15 JUDGE POCAR: Sorry.
16 MR. KREMER: Yes.
17 JUDGE POCAR: Judge Meron would like to put to you a question.
18 JUDGE MERON: I just would like to make sure that you address the
19 argument made earlier by the counsel suggesting that Mr. Krajisnik, as
20 head of parliament and not of an executive organ, could not be considered
21 a member of a properly defined JCE because he, it was argued, was
22 involved only in local diplomatic and political efforts. I think we sort
23 of owe it to the counsel to -- for the Prosecutor to relate to that too.
24 It would have been helpful, for example, if the Prosecution could point
25 to specific speeches by the appellant establishing beyond a reasonable
1 doubt that he shared unlawful common purpose of a JCE.
2 Thank you, President.
3 MR. KREMER: First of all, I would remind the Chamber that this
4 case is not about hate speech, that this case is about contributing -- or
5 joining a JCE which had as its common purpose the commission of crimes,
6 in this case the commission of serious crimes over a large, large area,
7 crimes involving murder, extermination, persecution, deportation, and
8 unlawful transfer.
9 The decision on mens rea was not formed only on the speeches that
10 Mr. Krajisnik made. It's made on the basis of all of the evidence, all
11 of the evidence involving the participation of the Bosnian Serb
12 leadership in the implementation and carrying out of the common purpose.
13 Specifically on Krajisnik's mens rea, I should point Your Honour
14 Judge Meron and the Chamber to paragraph -- or to P292, which is at tab
15 21, particularly at page 4 where Mr. Krajisnik says the following:
16 "Everything we do in this parliament, everything I do personally I do
17 exclusively for pure areas."
18 It makes no -- there's no ambiguity with what he says. It is not
19 a political speech said to all of the parliamentarians, this is what
20 we're doing, and the people who are doing it are the parliamentarians who
21 were present there. They knew what he was talking about and he knew what
22 he was talking about. Given the mass of evidence that the Trial Chamber
23 had before it about who was involved in these crimes, SDS members, SDS
24 deputies, the leadership, the instrumentalisation of structures, it
25 was -- the only conclusion that they could draw was that Mr. Krajisnik
1 was in it as deep as everyone else. And in fact, they found as a result
2 of the evidence that they heard he was at the top of it. He was the
3 person, together with Karadzic, who was implementing it. They worked
4 together to make sure that his vision of a pure area, a pure Serbia
5 of Muslims and free of Croats was achievable, and they achieved it by
6 using structures of the state in a criminal way to make sure that it was
7 achieved. And it was achieved nine months later at the cost of 3.000
8 lives and at the destruction of over a hundred thousand lives of people
9 who had lived in the region for centuries.
10 Yes, as Mr. Dershowitz says, you've got to look at the history,
11 but don't look at it from the perspective of the Serbs. Look at it from
12 the perspective of the people that they drove out.
13 If I could have five minutes, I promise to finish. Thank you.
14 The judgement did not in most cases make an individual specific
15 factual finding with regard to the links for three acts of persecution,
16 unlawful detention, destruction of personal property and cultural and
17 sacred sites.
18 What the Trial Chamber did is it expressly dealt with the more
19 significant examples from each municipality based on the overwhelming
20 evidence of systematic pattern of unlawful detention, destruction of
21 property across the indictment municipalities. This evidence allowed the
22 inference that the acts were part of the common objective and were
23 carried out using organisations under the control of the JCE, otherwise
24 Serb forces. And I'll just deal with one example and then wrap up.
25 For example, the Trial Chamber found unlawful detention in 33
1 municipalities, in more than 350 detention facilities. Paragraph 810.
2 An example from Prijedor municipality illustrates how they dealt with it
3 for detentions, 483. Serb authorities detained mostly Croat and Muslim
4 civilians in 58 detention and collection centres in Prijedor municipality
5 in 1992. Five of them were considered long-term detention centres,
6 Keraterm, Trnopolje, Omarska. The police station in Prijedor town and
7 the command posts of Miska Glava. The other 53 locations mentioned in
8 schedule C of the indictment were places of short-term detention. Most
9 of the Muslims and Croats in Prijedor were detained for some period of
10 time at one of those detention or collection centres in 1992.
11 The five detention centres mentioned are discussed in detail.
12 The 52 others, or 53 others, are not. Although the Trial Chamber finding
13 does not contain further details regarding who established and operated
14 the additional unlawful detention facilities, it is our submission that
15 the Chamber was entitled to infer these -- that these acts were part of
16 the common objective and were operated by Serb forces or Serb authorities
17 acting in pursuit of it. Why? Because all of the evidence demonstrated
18 a system and pattern of detention facilities operated and used by the JCE
19 members to carry out the common objective in their relevant
21 Detention was part of the pattern of attack of the non-Serb --
22 against the non-Serb population. Paragraph 708. The civilian detention
23 centres were an instrument as much as they were an intermediate step in
24 the logic of dislocation and expulsion.
25 THE INTERPRETER: Would counsel please slow down. Thank you.
1 MR. KREMER: I'm sorry.
2 Paragraph 1055. Detention of civilians was used as a method of
3 pressuring non-Serbs to leave the territory. Paragraph 1043.
4 The same approach was used for destruction. Destruction, when
5 you look at it carefully, was through or with the cooperation of the
6 organisations used by the JCE members. The Serb forces used heavy
7 artillery, mortars and tanks as well as explosives or incendiary devices
8 to destroy non-Serb property. Paragraphs 830, 837, and 838.
9 Destruction was part of the pattern of the attack on the non-Serb
10 population described by the Chamber in paragraph 707 to 709. Destruction
11 of houses rendered it impossible for the villagers to return. Paragraph
13 With regard to the destruction of cultural property,
14 Predrag Radic testified that in 1992, Serbs destroyed mosques in various
15 parts of the ARK
16 Paragraph 378. That the Bosnian Serb leadership accepted and approved of
17 this systematic destruction of non-Serb private property comes from the
18 minister of justice himself. On May 5th, 1992, Momcilo Mandic in a
19 telephone conversation with Brano Kvesic said: "We are holding Turks
20 under siege in Sarajevo
21 nice Sarajevo
22 to change architecture and everything." And by April 23rd, Mandic would
23 level a Sarajevo
24 The Bosnian Serb leadership accepted the destruction of civilian
25 settlements would be swift and vast. Trifko Radic reported to the
1 Bosnian Serb Assembly on 12 May 1992
2 to shell and destroy towns. We have destroyed one third of Visoko, maybe
3 tonight another third will go." Paragraph 974.
4 Our position is that using a descriptive approach was justified
5 giving the consistent pattern of recurring detentions, recurring
6 destructions during attacks and takeovers which were all directed to
7 drive out the non-Serb population from the indictment municipalities.
8 The Trial Chamber reasonably concluded that the acts of detention
9 and destruction were committed by Serb authorities or Serb forces and
10 that they could be linked to JCE members carrying out the common
11 objective. Each of these facilities and each of these acts were
12 commanded by a leader on the ground, whether it's a local police leader,
13 a local military leader, a Crisis Staff member, the link is there. The
14 link is a structural link and the link is a human link. The human link
15 is the JCE member whether he is defined or not, whether he was found to
16 have committed crimes or not. And our position is that it was not
17 necessary for the Trial Chamber to look to each and every crime committed
18 throughout the nine years or the -- I'm sorry, the nine months from -- in
19 the indictment period and link the actual physical perpetrator to a JCE
20 member specifically by name. That is not required. The evidence showed
21 clearly that the leaders of the structures were controlled and -- by JCE
22 members who shared the common plan, and the crimes that they committed
23 were a part of the common objective. There could be no doubt that all of
24 the crimes committed by the Serb forces in the takeovers and following
25 the takeovers, particularly in respect of detention and destruction
1 crimes, were committed by them and were part of the common objective and,
2 therefore, properly linked.
3 Unless you have some questions, those are my submissions.
4 JUDGE POCAR: Thank you, Mr. Kremer.
5 Any questions from my colleagues? There are no questions, so
6 this concludes the response.
7 We are slightly behind schedule, but I wanted to give equal time
8 to the parties.
9 Perhaps I wonder whether it is more appropriate to break now
10 instead of going on up to almost 2.00 and have the reply at the beginning
11 of the afternoon, but of course I'm in the hands of the -- if the Defence
12 prefers to have the reply now.
13 MR. A. DERSHOWITZ: [Microphone not activated] ... Either is
14 acceptable. I would prefer --
15 THE INTERPRETER: Microphone, please. Microphone.
16 MR. A. DERSHOWITZ: [Previous translation continues] ... response
17 later we can do that.
18 JUDGE POCAR: How long do you need for the response -- the reply?
19 MR. A. DERSHOWITZ: Probably half an hour but we could also break
20 it up. We're dividing it --
21 JUDGE POCAR: It's up to -- I see the bench is divided, so we
22 don't have a common position on this.
23 MR. N. DERSHOWITZ: We bow to the higher authority.
24 JUDGE POCAR: But in that case, of course, we break now we
25 reconvene at 3.00, not at 3.15. We break for one hour and a half.
1 --- Luncheon recess taken at 1.28 p.m.
2 --- On resuming at 3.04 p.m.
3 JUDGE POCAR: We resume the hearing, and I will give the floor to
4 the Defence for the reply of the appellant as scheduled.
5 MR. N. DERSHOWITZ: Again, I'd like to thank the Tribunal for
6 both allowing me the opportunity to make the presentation and also for
7 your arranging to have lunch before it was necessary for me to present
8 our reply, and particularly because it gave me an opportunity to look at
9 the document that the Prosecutor had made reference to about the pure
10 area, a reference we had never seen, a reference which is not contained
11 anywhere in the decision.
12 There is a discussion, however, on paragraph 905, excuse me, 905
13 in the decision which explains that reference, and it's very interesting.
14 It starts off -- in the decision it says: "The accused deftly handled
15 the political fracture at the February 28, 1992, meeting of the Deputies
16 Club." And if you read the five pages of notes, you will see that
17 Mr. Krajisnik did deftly handle the problem. What was happening is he
18 was pushing for a vote and a constitutional determination to be made
19 following the Cutileiro recommendations which had been made and that if
20 you read the minutes, what happened was a separate group from Krajina was
21 looking to expand Serbia
23 sections that had extensive populations of Serbians and not wanting to
24 expand in as the other group, the more radical group, wanted. And if you
25 review the four or five pages, they are so reflective of everything that
1 we have been saying from the beginning.
2 He talks about: "Therefore, it is good for us to all understand,
3 to forgive one another if something we say sometimes without a solid
4 basis," he's referring to the other side, "we must find a way to solve
5 the problem. I think we can find a solution." He goes on to say, "I
6 don't think they're bad people." He's referring now to those who want to
7 expand, and he's talking about, "As far as the constitutional --
8 constitution is concerned, gentlemen, we need this constitution, and I
9 hope at that God willing we will finish in a month or two. We need a
10 democracy of Bosnia
11 of a political position.
12 The quote that was referred to is also interesting. It goes on
13 and it starts discussing, "Tomorrow let them adopt the constitution." He
14 was talking about having the Serbian people, by its constitution, make a
15 determination as to whether they wanted to adopt the more limited
16 Cutileiro Plan or to allow others who are looking for a more expansive
17 view to adopt their more expansive view, and he was pushing for the more
18 limited view at that time.
19 And it goes: "We don't have to fear that much. They are
20 Serbs -- we are Serbs. We cannot understand reality. God help the
21 Serbian people. No one has the right to do that, bypassing our unity. I
22 tell you, everything we do in this parliament, everything I do personally
23 I do exclusively through pure areas of [unintelligible] Herzegovina
24 [unintelligible]. I will not yield that right to tell the people of
25 Krajina that they are not right." What he is saying is, we want the
1 section that had been discussed earlier by the international community, a
2 section that was primarily Serbian and not expanding to territories which
3 were not Serbian, and therefore the other group which wanted to expand,
4 he was saying no, let the constitution apply.
5 In response to Judge Meron's question of Ms. Goy, she said that
6 they had previously filed documents stating their position as to which
7 were the critical paragraphs which showed that Mr. Krajisnik joined
8 the -- the JCE, and I have pulled out five or six of the critical
9 paragraphs that they rely upon and I'd like to read some of them.
10 Paragraph 115 is referred to in their answer in paragraph 23. "During
11 the session of the Bosnian Serb Assembly held on February 25, 1992, the
12 accused told the deputies that the Serb people had two options before
13 them; namely, to fight by political means or make the most out of the
14 present time as a first phase or to break off the talks and go for what
15 we have done over the centuries, win our own territory by force."
16 That's a reflection of his so-called agreeing to allow the
17 Muslims and the Croats to be forcibly removed. All he is talking about
18 is, "We want to do it democratically or we should do it -- or we may be
19 stuck doing it by force."
20 The next references are on page -- it's paragraph 910. As
21 Mr. Krajisnik recalled in his 1994 speech. We're talking about after.
22 The battle of the republic began on 18 March 1992, the day on which the
23 Bosnian Serb leadership in the person of the accused made known to the
24 Assembly deputies its wish to pre-emptively take over territories in
25 Bosnia-Herzegovina while separating the Bosnian Serbs from the other two
1 ethnic groups.
2 THE INTERPRETER: Could the counsel please slow down. Thank you.
3 MR. N. DERSHOWITZ: There's no citation to that. And the next
4 section says: "The essence of the accused's message to the
5 representatives of the Bosnian Serb people was that he wanted new facts
6 created on the ground in order to strengthen the hand of the Bosnian Serb
7 negotiators of whom himself and Karadzic were the most prominent. The
8 accused acknowledged that strengthening a negotiating position through
9 the creation of facts which were the very subject of the negotiations was
10 not a fair method yet he insinuated better that the Serbs be unfair to
11 the Muslims than vice versa. The government says the March 18th speech
12 was a call to arms."
13 It was not a call to arms. What it was was an indication that
14 what you do is if you want to set up a plan, it had been proposed
15 internationally, the Muslims had rejected it at that point. He wanted to
16 implement that plan at that point in time by having municipal governments
17 in place so that they can run that part of Bosnia-Herzegovina. When
18 Bosnia and Herzegovina announced publicly and was -- that it was
19 withdrawing from Yugoslavia
20 recognised, the desire was to have an area as had been negotiated and
21 discussed, an area within the larger Bosnia-Herzegovina which had --
22 which was mostly Serbian, which had a government in place to address the
23 concerns of the Serbians, and then what you do is you have the entities
24 as they had had and as they now have, the different entities joining
25 together in a constitutional format in order to proceed.
1 Page -- paragraph 923 is the same. Paragraphs 1003 -- I'd like
2 to read all of them, but I don't think that that's a valuable use of
3 time. They cite at 1003 which to some extent is viewed as the most
4 critical of their paragraphs and it says: "At the Assembly session of
5 July 25, 1992
6 date had been insufficient. The people created the borders and we have
7 to agree here today on territory that are not under our control right now
8 but to which we claim rights due to them being ethnic territories. We
9 then stretch the desired extent," and then it gives the boundaries as to
10 which they are seeking.
11 Again, it's a political assertion of what is desirable under the
13 And the final cite is to paragraph 1015. "Other events also drew
14 the accused away from Pale," and then it goes on to describe a statement
15 that he made that all Serb patriots will have the same emblem, the Serb
16 tricolours, as if that is a call to arms.
17 Now, what I think is significant is that at least as the Chamber
18 made the determination, and this Chamber has used similar language too,
19 in the Brdjanin decision, this Court said: "Where convictions under the
20 first category of JCE are concerned, the accused must both intend the
21 commission of the crime and intend to participate in a common plan aimed
22 at its commission."
23 With all due respect, I think this Chamber said it backwards.
24 What I mean by that is first you have to have the joint criminal
25 enterprise intending to carry out the acts to further the joint criminal
1 enterprise. So first you have the joint criminal enterprise, and then
2 you have the acts in furtherance of the joint criminal enterprise.
3 Having said that, a decision -- the court below said we first
4 have to find out when we had the joint criminal enterprise and when he
5 was a party to that joint criminal enterprise. The date that was
6 selected was an April of 1992 date, and the only things that occurred
7 prior to that are all of these political statements. To the extent that
8 the government -- the Prosecutors are suggesting that he gained knowledge
9 later, which we both reject factual and legally, whether simply having
10 gained knowledge is sufficient. But assuming for the moment that he
11 gained the knowledge and therefore at that point he joined the JCE, the
12 question is when? He would then not be responsible for the
13 implementation of the plan prior to his joining. You do not apply it
14 retroactively. So that, for example, if an event occurred in April but
15 he didn't have knowledge of the JCE until July, he would not be under the
16 JCE doctrine responsible for what occurred in April, May, June prior to
17 the time when he became a member.
18 So you have a decision here that April is the critical date, and
19 I suggest there is nothing on the April date of -- there's nothing by the
20 date when the claim and the decision was made that he was a member which
21 supports that conclusion, and the knowledge later is insufficient. And
22 even if that works, you still need a determination of when, and then what
23 acts he's responsible for thereafter. The decision is blank on that
24 because it decided the April date, which I suggest is inappropriate.
25 Let me just touch for one minute on some of the questions with
1 respect to linkage. Two points I wanted to make. The first is that the
2 Prosecutor makes it sound as if Chambers below followed Brdjanin. As you
3 know, the Brdjanin came down well after the decision below, so it clearly
4 was not following and intending to comply with this Court's decision,
5 which I know is over at least one Justice's dissent.
6 The second is that I tried, and I have not been able to do this
7 as thoroughly as I would have liked over the break, but having listened
8 to the listing provided by the Prosecutor, I don't believe any of those
9 people by name are listed in the indictment. You have such a vast array
10 of entities listed in the indictment that it then becomes easy for them
11 to say anyone who we can show committed the war crimes, since we said
12 it's the army or we said it's the municipal governments or we said it's
13 the Crisis Committee, whatever they say it was since they've listed that
14 in the indictment, they simply pluck that name out. They say this person
15 committed a war crime. Therefore, this person was a member of the JCE.
16 If they cannot find the name to pluck out, they simply say that
17 person was acting pursuant to the military, pursuant to the -- you know,
18 the gangs that were roving, pursuant to anything they want. It all gets
19 lumped in, and therefore they have satisfied the linkage. And I've just
20 re-read parts of Brdjanin, and I don't believe for one second that the
21 decision intended that result. It was being quite specific in talking
22 about, sure, you can retain someone as your instrument to carry out
23 the -- your objective as part of the JCE, not working the other way of
24 saying anyone who committed a war crime, now we have to do -- trace it
25 backwards, which is what they are attempting do now.
1 And with all due respect, it's a backward process. They
2 shouldn't be coming in here today trying to justify the decision and the
3 indictment by looking through the mass of evidence to see if they can
4 support and then scratching out some that they can't support and doing it
5 that way.
6 Thank you. Let me turn over the floor. Thank you.
7 MR. A. DERSHOWITZ: Thank you, Your Honours.
8 THE INTERPRETER: Microphone, please.
9 MR. A. DERSHOWITZ: I would like to respond to first Ms. Goy and
10 then Mr. Kremer. Ms. Goy correctly points out a distinction between the
11 actus reus
12 distinction disappears in this case, because all of the evidence that
13 goes to proving or trying to prove that he was a member of the JCE is
14 exactly the same evidence as his contribution. They are his political
15 activities and his speech. There is no separate activity that is
16 evidence of joining and not evidence of his significant contribution or
17 vice versa.
18 In other words, what they're doing is they're counting twice, and
19 what they're essentially arguing is that political speech can be both the
20 only evidence that he joined a JCE and also the only evidence of his
21 substantial contribution, and they can't point to a single instance of a
22 speech pursuant to the question of Judges that would be a criminal speech
23 or a speech involving crime. In fact, the fact that they had to invoke
24 one speech that's not even referred to in the transcript, in the
25 judgement itself, shows that there are no speeches that they can really
1 find, no speeches that are referred to, and there are dozens and dozens
2 and dozens of speeches referred to in the judgement, and they don't point
3 to a single speech referred to in the judgement as evidence of criminal
4 conduct and the only one they find is taken out of context, was never
5 seen by the defendant and is only in an appendix to the opinion.
6 They acknowledge that the vast majority of crimes were committed
7 by non-members, which is really a response to the question put by one of
8 the justices. In the event that there isn't sufficient linkage, it
9 really means the whole conviction has to go. If the vast majority of the
10 crimes were committed by non-members, you can't save the conviction
11 because of spill-over jurisprudence just because there were some crimes
12 perhaps committed by members. And as my brother pointed out, members who
13 became members only upon committing the crimes. They were not named as
14 members previously which really goes to the essence of what Kremer's
15 argument was.
16 Mr. Kremer very poignantly, with tears in my eyes and I'm sure in
17 the Court's eyes, went over these horrible cases of rape and of rape in
18 front of family members and killing of children and all these incredibly
19 horrible acts that took place but never pointed to whether or not any of
20 those acts were intended by the defendant, whether they were part of a
21 later agreement by the defendant, whether they were predictable,
22 foreseeable under stage 3. There's simply no evidence that the defendant
23 here ever learned of these acts until after he heard the transcript of
24 the trial itself.
25 So the catalogue of terrible acts may help to explain why there
1 is a prosecution here and why there are so many people who would like to
2 see this prosecution affirmed, but it bears no relationship, because
3 what's missing -- the missing link in this case is any linkage between
4 the defendant himself and the acts committed by the people in the field.
5 What conceivable benefit -- let's assume there's a goal to have some kind
6 of separation or ethnic purity. How is that served by, just to be brutal
7 and gruesome to quote from the government, having somebody have to eat
8 the body parts of somebody else or somebody engage in the rape of
9 children, all these kinds of activities? They are plainly not intended
10 or foreseeable. Yes, every war, almost every war has brutality that goes
11 with it. That doesn't make every waging of a war a war crime.
12 Mr. Kremer describes the group as something that Mr. Krajisnik
13 joined, and he should have known what he was joining because of the other
14 members of the group. You know, it sounds almost as if he's applying for
15 membership in a club. That's not the way it worked. He didn't join. He
16 didn't come in one day and get initiated into the Mafia by having a
17 pinprick in his finger. He didn't join the Ku Klux Klan. He didn't join
18 the Nazi party or the Gestapo. He didn't join anything. The Court
19 imposed on him a conceptual framework saying that over time, without
20 specifying exactly when, he should be deemed to have been part of, not
21 that he joined. And it also makes it sound, when you here the
22 government's presentation or the Prosecution's presentation, like he
23 exercised control over those who committed the crimes. But there is an
24 explicit finding by the Court on page 402 that he did not exercise
25 effective control at any point in time over these activities.
1 Now, the Prosecution cites some reference to some War Commissions
2 that were appointed late in the process, but if one goes and reads the
3 description of the War Commissions, one finds they were a one-way
4 process; that is, their only task was to report the work to other members
5 of the Presidency. Put another way, the information all came back to
6 them. They had no authority to direct activities. At worst, this would
7 go to the issue of knowledge and mens rea. It doesn't in any way go to
8 the issue of actus reus
9 was a one-way information flow.
10 The other point cited by the Prosecution is that the defendant
11 here may have appointed one or two commissioners, but without any further
12 information, who were these commissioners, would he have known in
13 advance, did these commissioners in fact commit any crimes, the very fact
14 that he may have had some responsibility for appointing commissioners in
15 no way, again, goes to the actus reus
16 finding of the Court that he exercised no control. Therefore, the
17 Prosecution is led, finally, to conclude that the defendant, and I'm
18 quoting from them, "was in the company of," "in the company of," and then
19 it points to members of SDS. Not even in the company of any of the
20 criminals. And if that's not guilt by association, I don't know what is.
21 In the company of. Not even a description of what happened while they
22 were in the company of. And then: "These leaders use their men to
23 commit crimes." But there's into evidence linking this defendant to any
24 of the people who committed any of the crimes. He didn't know these
25 people. He had no association with them.
1 Mr. Kremer correctly points out this is not a case about hate
2 speech, but speech is the central evidence, and it doesn't even rise to
3 the level of hate speech. We're talking about political speech. We're
4 talking about what the Court acknowledges as political deftness, of using
5 his political savvy, all in the interest of trying to get the best
6 possible deal he could for his constituency. And he did get that deal.
7 Ultimately, he got a deal through the Dayton Accords and that's what he
8 is responsible for. He is responsible for the negotiation. Does his
9 negotiation position strengthen with developments on the ground? Of
10 course, every negotiator understands that. And the point about pure
11 areas as was explained bears no relationship. Not only that, but it
12 couldn't be an incitement speech because as the Prosecution concedes it
13 was stated only in front of a small number of people as part of a speech
14 relating to why the constitution should be ratified and why the extremist
15 Bosnian view should be rejected. The pure areas were eventually achieved
16 by diplomacy.
17 Finally, because I know because I'm running out of time and I
18 would hope to invite any further questions, Mr. Kremer after a
19 brilliantly evocative statement of all the crimes again which caused
20 tremendous compassion, then said that these things must be "looked at
21 from the point of view of the victims." And the mens rea and the actus
23 the point of view of the victims. With all due respect, I beg to differ.
24 This is a criminal case. Now, obviously the victims' perspective helped
25 frame the jurisdiction of this court and explained the reasons why this
1 court has been set up to do its very important duty, but when it comes to
2 deciding the guilt of the defendant, it must be viewed from the
3 perspective of what the defendant knew, when he knew it, what did he do,
4 when did he do it, what is the evidence of an agreement. It must be
5 looked at through the prism of the defendant's actions and through the
6 prism of the defendant's state of mind.
7 And when looked at that way, these horrible, horrible crimes must
8 be punished and have been punished and will be punished, but they must be
9 punished by punishing the right person in the right proportion to what
10 that person did. And the idea that, as Ms. Goy put it, his role may have
11 been central, those are quotes, his role may have been crucial, but they
12 were political: "His role was political. It may have been crucial and
13 central to achieving the overall political result that was sought in this
14 case by political means." But if one goes through all of the speeches as
15 we have gone through, there is never a call to arms. There is a call to
16 disarmament. There is never a call to violence. There is a call to
17 constitutionalism. There is never a call for ethnic cleansing. There is
18 a call for compromise. There is never a call for a war crime. There is
19 a call to avoid war. And the implications of an affirmance of this
20 conviction would be that if a political figure seeking peace is in a
21 troubled world where there is war and where there are war crimes being
22 committed, he may not remain on and engage in his political activities,
23 political activities which may be essential to resolving the dispute
25 Mr. Krajisnik could have been a man of lack courage and have left
1 the country, as many did. He could have remained silent in the face of
2 what was going on. He did not do that. He continued his political
3 activities and it's for continuing his political activities that he has
4 been prosecuted and sentenced to life imprisonment, essentially, for a
5 man his age.
6 So what we urge the Court to do and we know the Court will do it,
7 is to please read as thoroughly as possible all the speeches, all the
8 allegations and to make its own conclusion and draw its own inferences
9 and to apply the standards that we have suggested that when there are
10 doubts they must be resolved in favour of political aspects of speech and
11 that without a finding of criminal conduct, without a finding of criminal
12 actions this defendant cannot stand convicted of these serious war
14 Thank you, Your Honours. If there are any questions, I'd be
15 happy to respond to them now or at any time during the proceedings.
16 Thank you very much, Your Honours.
17 JUDGE POCAR: Thank you. No questions.
18 So this concludes Mr. Krajisnik's appeal. We move on now to the
19 amicus curiae appeal, and I will give the floor to the amicus curiae for
20 half an hour for his submission.
21 MR. NICHOLLS: Mr. President, may I just ask the Tribunal to go
22 into private session for a brief moment.
23 JUDGE POCAR: Sure.
24 MR. NICHOLLS: Mr. President, you will --
25 JUDGE POCAR: Just a second.
1 [Private session]
2 [Open session]
3 THE REGISTRAR: Your Honours, we are back in open session.
4 MR. NICHOLLS: Your Honour, I propose firstly to address the
5 issue of fair trial on which I expect to spend about 20 minutes and then
6 to follow shortly on the issue of JCE for approximately 10 minutes.
7 Because of time constraints, I shall not be addressing --
8 JUDGE POCAR: Judge Meron.
9 JUDGE MERON: President, since the time of amicus is going to be
10 fairly limited, with your permission could I pose what for me is a
11 critical issue so that he would be able to address it in his argument?
12 Thank you, President.
13 JUDGE POCAR: Yes, proceed.
14 JUDGE MERON: You will discuss, I know from what we said, the
15 competency claims. In your brief you asserted regarding trial counsel to
16 Mr. Krajisnik, especially in light of the additional evidence and I will
17 not refer to that. The specific point I have is this one: In your brief
18 you noted that Mr. Stewart, in February 2005, readily admitted in court
19 that he had read no more than 15 per cent of the relevant documents.
20 Nonetheless, the Trial Chamber denied the motion for adjournment and the
21 Appeals Chamber affirmed. In light of those decisions, is your argument
22 about Mr. Stewart's level of preparations in a way settled or not, and is
23 it your argument that taken together the totality of Defence counsel's
24 actions and the Trial Chamber decisions in essence deprived the appellant
25 of effective legal assistance? Thank you.
1 MR. NICHOLLS: Your Honour, may I just say straight away that the
2 answer to your second question is yes, that the Chamber has to look at
3 the totality of the evidence, and it has to look at the evidence as it is
4 at the end of the trial. The Chamber can look at the matter with
5 hindsight and, as in all manners of this kind, should look at the
6 evidence as a whole. I hope shortly that answers the question at this
8 As I was saying, I propose to speak about fair trial for a period
9 of about 20 minutes, then 10 minutes on JCE, and then subsequently in
10 reply, Mr. Jones will be able to take up other matters on JCE and there's
11 an issue of deportation about which we have informed the Prosecution.
12 I turn then firstly to fair trial.
13 As a defendant before the Tribunal and as a participant in the
14 Tribunal's legal aid programme, Mr. Krajisnik had a right to fair trial,
15 which includes the right to the effective assistance of counsel.
16 Although the right of counsel is only one of a defendant's minimum
17 guarantees, it is perhaps the clearest illustration of their
18 interdependence, because where a defendant exercises the right to
19 counsel, counsel becomes, in effect, the facilitator of all other
21 The right to disclosure, to cross-examine, to present evidence,
22 the right to adequate time and resources are rendered worthless if
23 counsel does not exercise his functions effectively. Regrettably, in our
24 submission, that is what happened to Mr. Krajisnik.
25 Mr. Krajisnik was originally represented at the pre-trial stage
1 by Mr. Brashich, an attorney from New York, and later, mainly in trial,
2 by Mr. Stewart, a Queen's Counsel from England. It is our submission
3 that both of them, individually and cumulatively, provided grossly
4 ineffective assistance and the trial was rendered systemically unfair.
5 I deal first with Mr. Brashich. Mr. Brashich was Mr. Krajisnik's
6 lead counsel for just over two years. He was removed by the Registry ten
7 days before the trial was due to commence for failing to disclose that
8 he'd been suspended from practice. He had eight prior admonitions for
9 professional misconduct, mainly for charging excessive fees. In the 25
10 months that he was lead counsel, his team billed 26.500 hours of legal
11 work, the equivalent of one person working a 40-hour week for 13 years,
12 and it cost the Tribunal $1.5 million.
13 In spite of this, he produced no useful work product. On the
14 12th of May, 2003, following his removal as counsel, he had the audacity
15 to tell Judge Orie that most of the preparation he had done was,
16 unfortunately, locked in his brain.
17 Mr. Stewart was assigned as lead counsel in July 2003, and a
18 target trial date was fixed for the 2nd of February, 2004. When
19 Mr. Stewart asked Mr. Brashich for his work product, Mr. Brashich
20 pretended not to understand what he meant. When two and a half months
21 before the trial Mr. Stewart finally received the full case papers, many
22 of them had the seals intact. They were, according to Mr. Stewart, a
23 complete shambles and an absolute mess. Such work product as emerged
24 was, according to Mr. Stewart, trivial in amount and made no significant
25 contribution to the preparation for trial.
1 It is axiomatic that the main work of an advocate, especially in
2 complex cases, is undertaken before the trial commences. Pre-trial
3 preparation is critical to an effective defence. There can be no doubt
4 that Mr. Brashich's failures to disclose his suspension, hand over the
5 case papers promptly, provide a well-ordered work product violated his
6 duties of competence and diligence under the Tribunal's Code of
7 Professional Conduct. The Prosecution has, as I understand it, not
8 disputed that conclusion.
9 The result of Mr. Brashich's misconduct created -- as a result of
10 Mr. Brashich's misconduct, a situation of unparalleled seriousness had
11 arisen in what was until then, barring Milosevic, the Tribunal's most
12 complex trial. Unless Mr. Stewart promptly and fully informed the
13 Trial Chamber of the gravity of the situation and the Chamber allowed his
14 team sufficient pre-trial time to prepare a defence, Mr. Krajisnik had no
15 prospect of a fair trial.
16 It is manifestly clear that neither happened. Mr. Stewart failed
17 to apply for a pre-trial adjournment in spite of advice from experienced
18 co-counsel referred to in our brief at paragraph 35.
19 When five months into the trial and struggling for survival
20 Mr. Stewart applied for a substantial adjournment, it was too late. His
21 team was drowning in a pile of papers he'd still not been able to sort
22 out, let alone adequately review, let alone read. In desperation he
23 confessed, "I should have brought this very specifically to the attention
24 of the Chamber a long time ago, and I wish I had, but I've done today,
25 and the Chamber has to look at it now, in the circumstances now, and we
1 do need time."
2 As amicus, with a duty to protect Mr. Krajisnik's interest, we
3 have considered carefully whether Mr. Stewart was grossly ineffective as
4 counsel. Such allegations are not easily made, especially against
5 advocates of his standing.
6 The Appeals Chamber laid down in November last year in the
7 Barayagwiza case the test to be applied where an appellant alleges
8 ineffective assistance of counsel. At paragraph 131 of the judgement it
9 said: "An appellant must establish that his counsel's incompetence was
10 so manifest as to oblige the trial to act -- Chamber to act. He must
11 further demonstrate that the Trial Chamber's failure to intervene
12 occasioned a miscarriage of justice." There are thus three requirements,
13 manifest incompetence, the Chamber's failure to act, a miscarriage of
15 We have argued in our brief that as a matter of human rights law
16 it should be enough for an appellant to show that he was denied effective
17 assistance of counsel and thus denied his right to fair trial. We submit
18 that all three requirements laid down in Barayagwiza are met. The
19 incompetence of the Stewart team is manifest. The Trial Chamber failed
20 to act, or at least act effectively, and it caused a miscarriage of
22 In our appeal brief, we set out in detail the reasons why we
23 submit Mr. Stewart's stewardship was manifestly incompetent. He
24 commenced a trial grossly unprepared, not having read the papers, taken
25 adequate instructions, or conducted sufficient investigations in the
1 field. He failed promptly to bring the severity of the situation to the
2 Trial Chamber's attention by not fully acknowledging its seriousness and
3 by failing to apply for a pre-trial adjournment. He failed to utilise
4 his pre-trial resources properly by employing insufficient staff and
5 failing to give the case his full attention. He systematically failed to
6 appeal significant decisions which impacted significantly on the fairness
7 of the trial.
8 It should go without saying that counsel who commences a trial
9 without reviewing the bulk of the disclosed papers, developing an
10 effective defence strategy, being in a position to cross-examine
11 witnesses adequately or adduce effective evidence is bound to be
12 ineffective. If that is correct, a trial conducted in such circumstances
13 is unfair.
14 The fact that any case, let alone one of this complexity, should
15 come on for trial when there had been no effective trial -- pre-trial
16 preparation was bound to raise grave questions for the Trial Chamber.
17 Should it have given Mr. Stewart more time before the trial commenced?
18 Should it adjourn the trial until Mr. Stewart was properly prepared?
19 Should it try to salvage the trial by granting adjournments piecemeal
20 when Mr. Stewart requested? More significantly, could mid-trial
21 adjournments ever make up for a lack of pre-trial preparation?
22 The Chamber was aware four days before the trial of Mr. Stewart's
23 difficulties on disclosure as set out in paragraphs 24 and 72 of our
24 brief which we urge the Chamber to read. With the advantage of
25 hindsight, as I answered Judge Meron a moment or two ago, with the
1 advantage of hindsight and reviewing the fairness of the trial as a whole
2 as required on appeal, it is our submission that the Trial Chamber failed
3 in its responsibilities for ensuring a fair trial by failing to adjourn
4 the trial at that stage.
5 On the first day of the trial, the Chamber granted Mr. Stewart a
6 month's adjournment so he could prepare cross-examination of the first
7 Prosecution witness. In the following 12 months, there were five more
8 short adjournments. The Chamber refused two motions for substantial
9 adjournments, one of which was upheld on appeal.
10 Thirteen months into the trial, however, referring to the tens of
11 thousands of pages of documents in his office, Mr. Stewart told the
12 Chamber that his team had read no more than 15 per cent of them. "I
13 haven't read many of them. I don't even know what they are. I don't
14 have enough B/C/S resources to find out what they are. It is absolutely
15 impossible. The position is hopeless."
16 His case manager had left. His counsel had -- co-counsel had
17 given notice because her cross-examination was hampered by not having the
18 time and resources to read and analyse Prosecution documents. Finally,
19 she left because, as she said, they could not provide an effective
20 defence in the time that has been available and all the implications that
21 that carries for a fair trial for Mr. Krajisnik.
22 Mr. Krajisnik was remarkably patient. Eventually he requested
23 equivocally, not without surprise, to self-represent, because he said,
24 self-representation could not make it any worse. The Chamber allowed him
25 to supplement Mr. Stewart's cross-examination by his own efforts with, as
1 Mr. Stewart said, disastrous results. Mr. Stewart and his team
2 definitely thought Mr. Krajisnik was prejudiced.
3 At the defence stage, Judge Orie, though originally not doubting
4 Mr. Stewart's competence, castigated him for failing to meet deadlines,
5 described his team's work product as seriously deficient and expressed
6 grave concern at their failure to identify expert witnesses.
7 The Trial Chamber, though doing its best to salvage a trial which
8 should never have commenced, failed in our submission in its
9 responsibility for ensuring fair trial by granting only periodic
10 adjournments when it was obvious to everyone that the Stewart team was
11 manifestly incompetent. Its lack of preparation had affected the whole
12 trial process.
13 The Prosecution claim that Mr. Krajisnik has failed to establish
14 he was prejudiced. The Chamber will recall that I requested that my
15 remit as amicus should be expanded to include the appointment of an
16 independent investigator into the deficiencies of Mr. Stewart's team.
17 The request was denied. The burden of establishing prejudice has
18 therefore fallen on Mr. Krajisnik himself, and he has filed a notice to
19 admit additional evidence which he believes would have assisted his
21 The Chamber will ask whether Mr. Stewart's refusal was a
22 responsible strategic decision or, as Mr. Stewart said, because of lack
23 of time. If it was for lack of time, was the Trial Chamber failing in
24 its duty to ensure a fair trial?
25 In a leadership case of this scale, it was essential to identify
1 and utilise expert testimony on relevant military, political,
2 demographic, and constitutional issues. In direct contradiction to
3 Mr. Krajisnik's entreaties, Mr. Stewart called no expert witnesses to
4 rebut the evidence of the experts on whom the Prosecution replied to
5 establish that Mr. Krajisnik, alongside Mr. Karadzic, was at the apex of
6 power in the Bosnian Serb republic. The wrongful omission of expert
7 evidence in those circumstances deprived Mr. Krajisnik of an opportunity
8 to establish the parameters of his constitutional role and authority in
9 day-to-day political and military affairs. The Trial Chamber's findings
10 on Mr. Krajisnik's individual responsibility may well have been very
11 different if he'd been able to present expert evidence on this issue.
12 I referred when I began to the interdependence of fair trial
13 guarantees, that the minimal rights to disclosure, to cross-examine, to
14 give evidence and obtain the attendance of witnesses are worthless if
15 counsel cannot exercise his functions effectively.
16 In our submission, it was manifest that the Stewart team's lack
17 of pre-trial preparation not only placed the trial at risk but on
18 examining its history, as the Chamber will examine it now, made a fair
19 trial impossible. Justice Robert Jackson said of the Nuremberg trials,
20 "We must never forget that the record on which we judge these defendants
21 today is the record on which history will judge us tomorrow. To pass
22 these defendants a poison chalice is to put it to our own lips as well."
23 The Brashich scandal, the ensuing ineffective representation of
24 the Stewart team, and the failure of the Trial Chamber to act
25 effectively, in our submission denied Mr. Krajisnik a fair trial.
1 Your Honours, those are my submissions on that first issue. I
2 pass very, very shortly to what I have to say about JCE.
3 Firstly, contrary to the Prosecution's submission, we submit it's
4 clear from the last sentence at paragraph 1098 of the judgement that the
5 Trial Chamber convicted Mr. Krajisnik of JCE I, not JCE III.
6 Secondly, as to JCE III, the Trial Chamber never explicitly found
7 Mr. Krajisnik guilty of that, nor did it specifically find that the new
8 crimes were foreseeable consequences of the original crimes. The mere
9 fact that a person in a leadership position knows that if war comes it
10 will lead to bloodshed is insufficient to establish JCE III liability.
11 Unfortunately, all wars entail bloodshed.
12 The Chamber's findings on JCE I are flawed in our submission
13 because they acquaint knowledge of the new crimes with acceptance and
14 acceptance with intent. This dilutes the requirement of mens rea.
15 The Chamber said at paragraph 1098: "With acceptance of the
16 actual commission of new types of crime and continued contribution to the
17 objective comes intent. On this basis, if Mr. Krajisnik became informed
18 of the new crimes, for example unlawful detention, sexual violence,
19 murder of civilians, and nonetheless continued with the common plan, then
20 he accepted those crimes and with acceptance comes intent."
21 In our submission that is not good enough. For example, two men
22 agree to burgle a house. During the course of the burglary one of them,
23 unknown to the other, shoots the householder. If the other burglar,
24 knowing of the shooting carries on with the burglary, the fact that he
25 knew of the shooting and continued with the common plan means that he
1 intended the killing. That can't be correct.
2 Another reason why the Chamber's finding on JCE I is flawed is it
3 imputes crimes to Mr. Krajisnik without, as the Chamber has recognised,
4 establishing a link between the perpetrators and Mr. Krajisnik or another
5 member of the JCE. In our submission, the Chamber failed to make crucial
6 findings on imputation of crimes committed by JCE members because it
7 failed to go through the required process of applying the law to the
8 evidence and satisfying itself that each of the crimes of which
9 Mr. Krajisnik was convicted could be imputed to at least one member of
10 the JCE.
11 On the Trial Chamber's analysis, the link was established by the
12 accused or the Bosnian Serb leadership being informed of crimes committed
13 by the direct perpetrators, but the Appeals Chamber has made it clear in
14 Brdjanin the link has to flow the other way, not from direct perpetrators
15 to a JCE member but from a JCE member to the direct perpetrators with a
16 JCE member using the direct perpetrators as tools or instruments to carry
17 out the common plan or ordering or instigating them to commit crimes.
18 We illustrated this in our brief at paragraph 152 with a diagram
19 showing how the Trial Chamber turned the correct JCE model on its head.
20 It's wrong, we say, because it creates too open-ended form of liability
21 whereby an accused becomes responsible for crimes committed by those with
22 whom he has no connection by virtue of him being -- becoming informed of
23 their crimes.
24 The Tribunal has repeatedly emphasised the injustice of holding
25 an accused responsible for a crime where the link is too remote or
1 tenuous both in the context of JCE and in the context of command
3 Thank you.
4 JUDGE POCAR: I thank you. I see there are no questions. I will
5 give now the floor to the Prosecution for their response.
6 MS. MARGETTS: Thank you, Your Honours. Good afternoon. Ms. Goy
7 and I will now present arguments in response to amicus curiae's appeal.
8 First, I will address ground 1, subgrounds (a), (b), and (c), relating to
9 fair trial and then Ms. Goy will argue ground 3 with respect to joint
10 criminal enterprise.
11 With respect to any grounds of appeal or arguments not addressed
12 today, of course we are relying on our written submissions set out in the
13 response brief and I now turn to ground 1.
14 This ground of appeal must fail because Mr. Krajisnik had a fair
15 trial. The Trial Chamber at all times had a close eye on the proceedings
16 and ensured that the trial as a whole was fair. The specific fair trial
17 guarantees set out in Article 21 of the statute were afforded to
18 Mr. Krajisnik. In particular, he was represented by counsel at all times
19 and effectively communicated with his Defence. He had a reasonable
20 opportunity to answer the charges against him. He cross-examined
21 Prosecution witnesses through counsel and was allowed to put questions
22 himself. He was able to put all relevant defence arguments before the
23 Court and to influence the outcome of the proceedings. In particular, he
24 testified himself for 40 days, presenting his entire defence and
25 explaining his version of events. He called 24 witnesses. He filed a
1 detailed final trial brief and presented closing arguments through
3 In addition, the Chamber ensured that Mr. Krajisnik had adequate
4 time and facilities to prepare his defence. The Chamber granted the
5 Defence numerous adjournments throughout trial. Thus the trial was fair.
6 The sub-grounds (a), (b) and(c) must be dismissed because none of
7 the alleged failings of former counsel constitute gross incompetence and
8 Krajisnik was afforded a practical and effective defence. He had
9 adequate time and facilities and any restrictions imposed by the
10 Trial Chamber were within its discretion under its trial management
12 None of the alleged violations constitute a breach of Krajisnik's
13 fair trial rights resulting in actual prejudice.
14 I will now turn to subground (a) with respect to ineffective
16 JUDGE POCAR: Can you please slow down a bit for the translation.
17 MS. MARGETTS: I apologise. As has been held by the
18 Appeals Chamber in the Blagojevic case, paragraph 23 of the appeals
19 judgement, there is a strong presumption of competence of counsel which
20 can only be rebutted by evidence to the contrary. An appellant must
21 among other things demonstrate gross incompetence. This has not been
23 As I have described to Your Honours, Krajisnik had a practical
24 and effective defence, had the opportunity to answer the charges and
25 present his defence through cross-examination, through his witnesses and
1 his testimony. The Trial Chamber, after 18 months of trial, in its
2 self-representation decision concluded that the Defence team was
3 competent, dedicated, functioning and working with the accused. This is
4 paragraph 35 of the decision.
5 The three individual examples of Chamber's criticism of counsel,
6 which are listed in paragraph of amicus curiae reply, cannot undermine
7 this overall evaluation of competence. Indeed, the first example is a
8 reference to Prosecution's submissions and the other two relate to
9 inadequate 65 ter witness summaries. Insufficient summaries do not
10 establish incompetence of counsel. This issue was moreover resolved by
11 the Trial Chamber which instead of determining relevant evidence on the
12 basis of the summaries gave the Defence a general time-frame for its case
13 enabling them to choose their witnesses freely. This can be found on
14 transcript page 18802. Thus there was no prejudice.
15 Amicus curiae's other arguments equally cannot rebut the
16 presumption of competence. The ineffective assistance claim against
17 Mr. Brashich failed. Amicus curiae argues that Mr. Brashich's failures
18 contributed to inadequate time and facilities for the preparation of the
19 defence. However, the Appeals Chamber already considered the impact of
20 Mr. Brashich's removal on adequate time of -- and facilities, including
21 his failure to hand over materials and his failure to provide work
22 product to new counsel. Despite these failures, the Appeals Chamber
23 found no error in the Trial Chamber's conclusion that overall Krajisnik
24 had adequate time and facilities to prepare his defence. Thus there can
25 be no impact of Brashich's failures on Krajisnik's fair trial.
1 There's also no reason to revisit this decision, because it was
2 not established that replacement counsel, Mr. Stewart, was grossly
4 With respect to former counsel Mr. Stewart, amicus curiae simply
5 disagrees with strategic decisions made at trial and attempts to show how
6 in retrospect they may have been proven wrong. As established by the
7 Appeals Chamber in the Nikolic Rule 115 decision of 9 December 2004 in
8 paragraph 37, this is insufficient to show gross negligence.
9 I'd like to comment on some specific examples raised.
10 First, Krajisnik was able to challenge Trial Chamber decisions
11 before the Appeals Chamber. Counsel indeed appealed the Chamber's second
12 adjournment decision and failed. The mere listing of procedural and
13 discretionary decisions which counsel allegedly failed to appeal cannot
14 establish misconduct. There is no indication of any potential error in
15 the Trial Chamber's decisions that could support the allegation that
16 counsel should have appealed them.
17 Second, Krajisnik called 24 witnesses in his defence and
18 testified for 40 days himself. Now, no examples of alleged failures in
19 the selection of witnesses, save for the reference to expert testimony,
20 nor has it been shown how these failures contributed to the Chamber's
21 assessment of Krajisnik's low credibility.
22 The decision not to call experts does not per se render the trial
23 unfair. Mr. Stewart was reasonable to weigh the value of expert
24 testimony against that of other evidence. Also, the evidence of the
25 Prosecution experts was tested in cross-examination and through witnesses
1 called by Mr. Krajisnik. For example, government witnesses, Assembly
2 witnesses, and army witnesses.
3 There's further no specific example of the alleged failure to
4 test the Prosecution evidence adequately. For these reasons, the
5 presumption of competence was not rebutted. And before I move to the
6 next subground I would like to briefly go into private session, Your
8 [Private session]
16 [Open session]
17 THE REGISTRAR: Your Honours, we're back in open session.
18 MS. MARGETTS: Thank you. I now move to subground 1(b), relating
19 to adequate time and facilities.
20 Mr. Krajisnik was afforded the right to adequate time and
21 facilities. Amicus curiae has not established that the time available
22 was inadequate nor that the alleged violations resulted in prejudice. As
23 I have mentioned, the Chamber allowed the Defence numerous adjournments
24 right from the outset of trial and throughout. The Trial Chamber sat
25 only 18 out of 48 days right after commencement of trial, and amicus
1 curiae has not explained why this additional time was manifestly
2 inadequate due to the fact that it was allowed immediately after instead
3 of before the beginning of trial.
4 There were 141 non-sitting days. This time-frame excluded
5 recesses and holidays. There was a block of seven free weeks when the
6 Chamber was reconstituted.
7 Considering these adjournments detailed in the second adjournment
8 decision, the Appeals Chamber found there was no error in the Chamber's
9 conclusion that there was adequate time and facilities. There's nothing
10 subsequently that could call this decision into question. After the
11 decision, the Chamber granted several adjournments in the Defence case.
12 For example, in November 2005, the Trial Chamber allowed the Defence an
13 extra seven weeks to prepare and present its case. This is on trial
14 transcript 18801.
15 Extra time was also given for preparation and conduct of
16 Krajisnik's testimony. Pages 18803 to 18804 and transcript page 24601.
17 Amicus curiae's argument under this subground must be dismissed
18 for these reasons, and I will now turn to subground 1(c), restrictions.
19 Amicus curiae alleges violations of the right to
20 cross-examination and to call witnesses which fall under the equality of
21 arms principle. However, the requirements for such a challenge have not
22 been met because any restrictions imposed did not disadvantage
23 Mr. Krajisnik vis-a-vis the Prosecution, and he had a fair opportunity to
24 present his case.
25 The restrictions imposed were within the Chamber's discretion and
1 did not cause any prejudice.
2 I will now go through some of them.
3 The frequent adjournments indicate the Chamber's flexibility in
4 time management. The imposition of time limits such as the 60 per cent
5 guideline for cross-examination was not strict and within the Chamber's
6 discretion. No error has been shown in the exercise of that discretion.
7 Indeed the Chamber was flexible in responding to Defence requests.
8 Cross-examination, for example, of witness Treanor was only started after
9 a month. This is transcript page 1833.
10 Amicus curiae also complains about the time allocated for the
11 Defence case but does not show any error in the exercise of the
12 discretion or how the allocated time caused prejudice. The discretion of
13 the Trial Chamber is detailed in its decision of 16 August 2006.
14 Another issue, while the Chamber admitted municipality binders
15 across the bar table, it expressly restricted their size to a maximum of
16 ten documents. This is on transcript pages 13386 to 13390. Most of
17 these dossiers were even smaller. Complaints regarding their volume must
19 There was also sufficient time for cross-examination of
20 Mrs. Plavsic. Krajisnik was not at any disadvantage vis-a-vis the
21 Prosecution, who was allowed only half of the time for cross-examination.
22 Moreover, the need for cross-examination was reduced because Mrs. Plavsic
23 testified about very limited issues which were indicated to the parties
24 in advance.
25 Finally, under the subground, the Chamber did not commit any
1 error in denying Krajisnik's request for self-representation. The
2 Chamber was correct to consider a change from Defence counsel to
3 self-representation in the middle of trial as a basis for restriction.
4 It was held by the Appeals Chamber in the Seselj case on 20th of October,
5 2006, that there may be circumstances justifying restrictions to be
6 assessed on a case-by-case basis.
7 Your Honours, in this case, in footnote 22 of the
8 self-representation decision of 1st May 2007 acknowledged that timing of
9 the request is a relevant factor. Overall, no error has been shown, and
10 the trial as a whole was fair. And this concludes my submissions on fair
11 trial unless Your Honours have any questions.
12 JUDGE POCAR: Judge Shahabuddeen.
13 JUDGE SHAHABUDDEEN: Counsel, I don't remember very well the
14 details, but sometime in 2005 Defence counsel applied for a six-month
15 adjournment, and one of the grounds he gave was that he had read only 15
16 per cent of the documentation.
17 Now, the Trial Chamber dismissed his application, and he appealed
18 to the Appeals Chamber, which in turn upheld the decision of the
19 Trial Chamber.
20 Is it competent for this Appeals Chamber to go behind the
21 decision of that Bench of the Appeals Chamber on the 15 per cent reading
22 of the relevant documentation?
23 MS. MARGETTS: Your Honours, no. There is -- in the Blagojevic
24 appeal it has been held that interlocutory appeals decisions address
25 issues with finality unless there are circumstances that would call this
1 decision into question subsequently are not considered or if there were
2 any manifest errors that were not apparent at the time.
3 Your Honours, in our submission there are no such circumstances
4 that would allow for reconsideration of this appeals decision.
5 JUDGE SHAHABUDDEEN: Thank you.
6 JUDGE POCAR: Thank you. Judge Meron.
7 JUDGE MERON: I thank you for your answer to my distinguished
8 colleague Judge Shahabuddeen. I have some problems with your answer.
9 The decision of the Trial Chamber of 4th March 2005, I believe it
10 was, found that the level of preparation might have been higher, and then
11 the Appeals Chamber affirmed that decision, applying, as it was proper, a
12 very forgiving standard of review. Namely, we were looking for abuse of
13 discretion. But I would suggest to you that today we have quite a
14 different situation.
15 We reviewed the total corpus of evidence to determine whether
16 there was a violation of the appellant's fundamental right to counsel.
17 So the situation is quite different before us.
18 Now you have argued, counsel, that it was incumbent on
19 Mr. Krajisnik to point to a prejudice to him that would have resulted
20 from questions pertaining to representation. Now, I have some problems
21 there too. It seems to me that a conduct by counsel can be so egregious
22 that it would be presumptively grossly negligent, and that in such cases
23 the burden would shift to the Prosecution to demonstrate otherwise.
24 Thank you, President.
25 MS. MARGETTS: Your Honours, in response to the first issue, our
1 position would be that, nevertheless, it has to be shown that these
2 issues, these alleged violations, while even if they were considered of
3 some -- of problematic or of some negligence, in hindsight they do not
4 amount to gross incompetence. And overall, having a look at the conduct
5 of the trial overall and the Trial Chamber being in the best position to
6 determine and having constantly acknowledged that it had a fair trial at
7 its foremost consideration was in the best position to determine whether
8 adequate time was given and whether counsel was sufficiently prepared to
9 conduct his defence. And we submit that it has been done, and there's no
10 reason to consider these individual violations, because overall the trial
11 was fair.
12 JUDGE POCAR: Well, thank you. You may go ahead.
13 MS. MARGETTS: Thank you, Your Honours.
14 MS. GOY: Good afternoon, Your Honours. I will be addressing the
15 question that I've already spoken about this morning very briefly, the
16 question under which form of joint criminal enterprise Mr. Krajisnik was
17 convicted, JCE I or JCE III. And I was wondering whether in light of the
18 questions Your Honours have posed, I would be allowed to get a couple of
19 more minutes to address this issue.
20 JUDGE POCAR: Certainly a couple of minutes, fine.
21 MS. GOY: Thank you very much. I'll try to be brief.
22 The Trial Chamber convicted Mr. Krajisnik on the basis of JCE I
23 and JCE III. Initially, only discriminatory forced transfer and
24 deportation were part of the common plan, whereas Krajisnik's liability
25 arose for JCE III under all the other crimes, extermination, murder,
1 persecution, based on the other acts than forced displacement. And soon
2 thereafter, these other crimes which the Chamber refers to as expanded
3 crimes became part of the common purpose and thus the conviction arose
4 under JCE I. And although we agree that the Chamber could have been more
5 explicit, I suggest to take Your Honours through the parts of the
6 judgement that show that the Chamber did in fact make the necessary
7 findings. And I will address the two periods distinguished by the
8 Chamber, the beginning of the implementation of the common purpose and
9 the period thereafter.
10 Turning to the first period, the Trial Chamber found in
11 paragraphs 1097 and 1118 that initially discriminatory deportation and
12 forced transfer were included in the common purpose. And for the
13 expanded crimes, liability arose under JCE III. They were in this
14 initial period at least foreseeable consequences of the implementation of
15 the common plan and Krajisnik was aware of this possibility and willingly
16 took that risk. Trial judgment paragraph 1099 confirms this.
17 And although there is no explicit finding of his responsibility
18 under JCE III in this initial period, a reading of the paragraphs 1096
19 through 1099, together with 1124 confirm this.
20 In 1124, the Trial Chamber finds that the accused's
21 responsibility arose with the crimes in Bijeljina, which includes
22 schedule incident A1.1, the killing of at least 48 civilians. This means
23 that the Chamber found Krajisnik responsible for these killings although
24 it had determined that initially the common purpose was only deportation
25 and forced transfer. And that the Trial Chamber considered the expanded
1 crimes initially as JCE III crimes is confirmed when one reads the
2 sequence of paragraphs 1096 through 1099 together.
3 In 1096, the Chamber raises the question of liability under
4 JCE III and then determines in the following paragraph that initially the
5 common purpose was limited to deportation and forced transfer, followed
6 by trial judgement 98, which explains, as amicus curiae has just pointed
7 out, the Trial Chamber saw that the common purpose expanded over time to
8 include other crimes.
9 1099 can then only mean that the other crimes initially fell
10 under JCE III. 1099 says, and I quote: "Notwithstanding the above, even
11 before the Bosnian Serb takeovers began in April, the accused and
12 Karadzic were aware that the armed conflict would have devastating
14 This paragraph thus includes the requirements for JCE liability
15 under the category 3, the awareness that the crimes including killing
16 were a foreseeable consequence and the -- of the implementation of
17 deportation and forced transfer and that the accused willingly took that
19 Turning to the second period after the initial phase. During the
20 indictment period, all of the expanded crimes became JCE I crimes. The
21 Trial Chamber found that in paragraph 1118. And this happened very soon,
22 and I will explain in a minute our position that due to the reporting
23 practice, incidents that occurred a few days after the first of the
24 expanded crimes were part of the common purpose. At the very least,
25 however, on the 12th of May when the strategic goals were proclaimed, all
1 of the crimes formed part of the common purpose.
2 That all of the crimes became part of the common purpose is
3 confirmed at the end of trial judgement 1119 when the Chamber said that
4 Krajisnik had the mens rea for the crimes which the Chamber found to be
5 committed. And they became so due to the expansion of criminal means,
6 through the commission of new types of crimes, no effective measures
7 being taken, and the persistence of the implementation of the common
8 plan. And the Trial Chamber was entitled to infer the intent for JCE I
9 crimes through these circumstances as the Appeals Chamber has frequently
10 confirmed, for example, in the Kvocka appeal judgement, paragraph 243,
11 that intent can be inferred from the circumstances.
12 The Chamber did not give specific dates when a particular crime
13 became a JCE I crime. It referred to very soon.
14 The findings made in trial judgement 996 support that at least 12
15 May, they were included in the common plan. And I quote from 996, the
16 second sentence: "Takeovers, killings, detention, abuse, expulsion, and
17 appropriation and destruction of property had begun in the territories
18 claimed by the Bosnian Serbs well before the pronouncement of the
19 strategic goals on 12 May." And the paragraph ends with: "This was the
20 Bosnian leadership's goal and if there was any goal needed on 12 May, it
21 was the continued pursuit of the very same goal."
22 That in our position they can be JCE I crimes even earlier is a
23 few days after the first incident occurred. Results from the fact that
24 the trial judgement, as obvious from footnote 2223, relied on the
25 reporting practice it had detailed in other parts of the judgement. So
1 liability under JCE I arose for each type of these expanded crimes that
2 happened a few days later. For the gravest crime like murder, this
3 included already the second incident. And we have referred to this
4 information flow in our brief in paragraphs 92 to 93 of the Prosecution
5 response to amicus and the Prosecution response to Krajisnik, paragraphs
6 213 through 228. I would therefore just like to highlight the
7 information about the first killings which occurred in Bijeljina on the
8 1st or 2nd of April, 1992.
9 Krajisnik and the rest of the leadership were informed already on
10 the 3rd of April. I refer Your Honours to witness Bozidar Antic,
11 transcript page 18186 through 18187 and 18219. The people in Zvornik
12 knew about them on 8 April, trial judgement 926. And on 10 April, the
13 information was published in the newspaper. P584 referred to in trial
14 judgement footnote 692.
15 These examples also show that the information flow was not
16 limited to the Pale leadership but also reached the rank and file of the
17 JCE component and the public at large. Therefore, to conclude, the
18 Trial Chamber correctly convicted Krajisnik under JCE I and JCE III.
19 This concludes my submission and I thank Your Honour for the additional
21 JUDGE POCAR: Thank you. I will now give the floor to the amicus
22 curiae for his reply.
23 MR. JONES: Thank you. I'm taking the next part of our
24 submissions. I just did wonder whether there was the possibility of a
25 break at this stage. I know there's something to do with tapes being
1 changed and interpreters. I'm perfectly content to go ahead.
2 JUDGE POCAR: If you remain within the time as scheduled, that is
3 15 minutes, we have the time to do it now before the break.
4 MR. JONES: I'm obliged and that's certainly my intention.
5 Well, in the brief time remaining to me, I'm going to deal first
6 with four short points on fair trial, then deportation, one short point,
7 and then one or two points in rebuttal on JCE.
8 Firstly with regard to fair trial, I would start by respectfully
9 adopting the observation made by His Honour Judge Meron that the issue
10 has not been settled by the Trial Chamber or the Appeals Chamber's
11 decision of 2005. Certainly the Trial Chamber and the Appeals Chamber
12 did not have all the facts before them that you have now, and therefore
13 in our submission you can revisit the issue. You have vastly more
14 information now, for example, with respect to the lack of pre-trial
15 preparation and the Brashich team, and so if it's a question of applying
16 the Blagojevic test, then we say certainly there are circumstances which
17 call into question the 2005 decision.
18 Now, with respect to the Prosecution's response, they provide
19 initially at least, if you like, a litany of the fair trial guarantees
20 which Mr. Krajisnik enjoys. He was able to cross-examine witnesses, et
21 cetera. But if you can't adequately prepare, then it's something of a
22 charade. It's like if you go to play a game of tennis and you find that
23 someone's removed the strings to your racket. It still may be a game of
24 tennis but it will be a pretty poor spectacle. And that's why the human
25 rights case law to which we referred in our brief emphasises that the
1 fair trial guarantees must be effective and that's what's key.
2 In terms of strategic or tactical decisions, it's not a strategic
3 decision to be hopelessly underprepared. Mr. Stewart himself admitted
4 that many of his decisions were not strategic or tactical. It was simply
5 because he did not have time, including the decision with respect to
6 expert evidence.
7 And thirdly I would observe, again by way of a metaphor, the
8 difficulty of fixing a leaky boat at sea. So adjournments during a trial
9 can only afford so much relief and you can't fix a leaky boat when you're
10 in the middle of the ocean.
11 Now on deportation, as I said, we alerted the Prosecution that we
12 would make this point so I apologise for it not being a reply so much as
13 a point which we're making. In ground 4 of our brief, we submit that the
14 Chamber erred when it convicted Mr. Krajisnik of deportation as a crime
15 against humanity under count 7. Now the Prosecution partly concede the
16 point, or to a large extent they concede it, by saying yes, the
17 Trial Chamber did not carry out the case-by-case analysis of whether a de
18 facto border was crossed by those displaced. So they concede that the
19 Chamber's findings on deportation were in error for a number of
20 municipalities. But they seek to keep the conviction alive with respect
21 to one municipality, and that's Bijeljina, and ask you to affirm
22 Mr. Krajisnik's conviction on that basis.
23 Now, it relates solely to one piece of evidence of
24 Mr. Milorad Davidovic, and that's T14235 which is cited at footnote 700
25 of the Trial Chamber judgement.
1 Now, if you look at what Davidovic said on that page, he referred
2 to displacements of Bosnian Muslims to "Hungary and the West," after he'd
3 referred to displacement to Muslim controlled territory. And this is all
4 he said: "Or else there were organised departures through Serbia
5 people to Hungary
6 about that as well." And that's all he said.
7 So we'd ask you to note a number of points about this very meager
8 piece of evidence. First, Davidovic volunteered this information, and he
9 volunteered to elaborate on it, but he wasn't asked to do so.
10 Second, you'll note the vagueness of this response, and
11 particularly the reference to "the West." What is encompassed in the
12 West, and more importantly, if by the West we're talking about Western
14 authorities would not be physically able to deport people to those
15 countries because, of course, they'd have to pass through lots of other
16 countries first. And so there's a very important distinction to be made.
17 Refugees from the war in Bosnia
18 the world. That doesn't mean they were deported to those countries any
19 more than during the Second World War refugees from Nazi Germany fled to
20 many countries but they weren't deported to those countries. That's a
22 Fourth, Davidovic referred to organised departures through
24 didn't say that Mr. Krajisnik or anyone linked to him organised those
1 And finally, for deportation through Serbia, the Serbian
2 authorities would have had to be complicit in the deportation. It's
3 their territory after all. But the Trial Chamber didn't make any finding
4 to that effect. And in fact the Chamber confined the JCE to persons
5 within the territory of Bosnia-Herzegovina, and you'll find that at
6 paragraph 1087. "The Chamber finds that the JCE, of which the accused
7 was a member, consisted of persons situated throughout the territories of
8 the Bosnian Serb republic."
9 So the JCE, anyway, territorially doesn't extend to Serbia
10 And finally while the Trial Chamber did refer to the transcript
11 of Davidovic, the page relied on by the Prosecution also refers to
12 internal displacements of Bosniaks to Brcko and other places. So in our
13 submission, that one throwaway line of Davidovic is simply not enough to
14 form the sole basis for conviction of crimes against humanity,
15 deportation as a crime against humanity, and if that's right and if
16 you're with us on that, then the conviction under count 7 should be
17 quashed in its entirety, indeed has to be quashed in its entirety.
18 Now I recognise I probably have two minutes left, so on JCE I
19 would really just make a full bullet points. There are really two
20 concerns for you, the Chamber, to address. First, this linkage which is
21 required and the fact that the Trial Chamber -- the Trial Chamber's
22 approach is insufficient. And secondly, you may feel that the
23 Appeals Chamber is not in a position to draw inferences from the
24 Trial record, and that's -- certainly those concerns have been raised by
25 at least two members of the Bench.
1 Now, we say the Prosecution response to both those concerns is
2 unconvincing, especially the assertion that parts 2 and 3 of the
3 judgement provide the necessary linkage.
4 If I could summarise our response to Mr. Kremer's point this way:
5 First, and we agree here with the submissions of Mr. Dershowitz,
6 Mr. Kremer's repeated graphic evidence of the crime base and then simply
7 asserts that those crimes were connected or controlled by the Bosnian
8 Serb leadership or the Pale-based leadership component, but he fails to
9 substantiate that latter point.
10 Secondly, this reference to paramilitary leaders, Arkan, Mauzer,
11 others, the so-called rank and file JCE members, who undoubtedly were
12 involved in terrible crimes doesn't provide that there was a common plan
13 between Mr. Krajisnik and them. And I'd also adopt what the Dershowitz
14 brothers said about the need to independently identify who is a member of
15 the JCE without reference to any crimes committed by them. Otherwise,
16 there's a circularity or a double counting. The Prosecution and the
17 Chamber should be able to pluck someone from Bosnia, if you like, and say
18 is this person in the JCE or not? And the answer to that question
19 shouldn't depend on whether they committed any crimes, otherwise you have
20 that circularity and we say the Chamber fell into that trap of having no
21 independent notion of a JCE member independent from the question of
22 whether they committed crimes, and there is that double counting.
23 And references to organisations and paramilitaries being under
24 the complete control of the Bosnian Serb leadership doesn't deal with the
25 Trial Chamber's finding at paragraph 1121 that Mr. Krajisnik didn't have
1 effective control over such people.
2 So we -- we do agree -- adopt the submissions of Mr. Dershowitz
3 that you take these crimes, a man being forced to watch his wife being
4 raped, terrible crimes, but that illustrates in fact the over-broadness
5 of JCE, because there's no suggestion that Mr. Krajisnik incited or
6 instigated police officers or Red Berets to commit rape in a police
7 station, and yet he's fixed with that terrible crime among many, many
8 others, murders of people made to dig their own graves. And doesn't that
9 show how the JCE notion has become completely overextended.
10 And if I might just finally end on a point about JCE III. The
11 Prosecution invites you to find that implicitly the Chamber found a
12 JCE III, but why on earth would they only do so implicitly. The
13 Trial Chamber had only to say, "We find Mr. Krajisnik guilty in terms of
14 JCE III," or they could have used the catch phrase, if you like, "these
15 crimes were the natural and foreseeable consequence of the common plan."
16 That's all they had to do, and they didn't do it. And so in our
17 submission, paragraph 1099 is far too broad to contain that implicit
18 finding as my learned friend, my learned colleague Mr. Nicholls pointed
19 out all war crimes -- sorry, all war entails terrible crimes. But unless
20 you're confusing the crime of aggression with JCE, you can't simply say
21 that that foreseeability entails foreseeability and liability under
22 JCE III.
23 So unless I can assist you further, that would be our reply.
24 JUDGE POCAR: I thank you, Mr. Jones. This concludes the amicus
25 curiae appeal.
1 We break now for 15 minutes and reconvene at 5 past 5.00 to hear
2 the Prosecution's appeal.
3 The hearing is adjourned.
4 --- Recess taken at 4.48 p.m.
5 --- On resuming at 5.08 p.m.
6 JUDGE POCAR: We had a slightly longer break, and we resume the
7 hearing with the Prosecution's appeal. I give the floor to the
8 Prosecution for their submissions for 20 minutes. You have the floor,
9 Mr. Kremer.
10 MR. KREMER: Thank you, Mr. President. The Prosecution appeals
11 the 27-year sentence imposed on Mr. Krajisnik as a result of his
12 conviction for the crimes that we've been talking about this morning and
13 part of the afternoon. The Prosecution submits that the sentence is
14 entirely outside the proper range of discretion for a Trial Chamber
15 having regard to both the gravity of the crimes and the degree of
16 participation of the accused in the crimes and that the sentence cannot
17 be reconciled with the principles governing sentencing as expressed in
18 the Gacumbitsi Appeals Chamber judgement, paragraph 205.
19 We know from the discussions this morning that this case is about
20 a massive, widespread and systematic ethnic cleansing of a large part of
21 Bosnia-Herzegovina where 3.000 Muslims and Croats approximately were
22 killed through murder and extermination, where 100.000 Muslims and Croats
23 at least were forcibly displaced from a large part of Bosnia-Herzegovina
24 and where these Muslims before they were displaced or before they were
25 killed and even some Muslims and Croats who still remained were subject
1 to a persecutory campaign that was part of a systematic and widespread
2 attack on this civilian population involving underlying acts of killing,
3 cruel and inhumane treatment, physical or psychological abuse, sexual
4 violence, unlawful detention, forced transfer and deportation, forced
5 labour, intentional and wanton destruction of property and plunder.
6 The Trial Chamber found at 1146 that: "Countless stories of
7 brutality and violence and deprivation resulted from these crimes. These
8 stories would not have been necessary if racial hatred and nationalism
9 had not consumed Mr. Krajisnik and the other JCE members. The Bosnian
10 Serb leadership and the rest of the JCE members commenced a persecutory
11 campaign that resembled how criminal states implement their campaigns of
12 terror. First, Mr. Krajisnik and the Bosnian Serb leadership engendered
13 in the Bosnian Serbs fear and hate of others using a propaganda machine.
14 Fear and hate against the Muslims and Croats in order to win their
15 support and to create the condition to implement the criminal purpose."
16 Trial judgement 1121C.
17 Muslims and Croats were prevented from moving freely. Their
18 houses were searched and their privacy violated. Paragraph 784. People
19 were fired from their jobs. 785. And denied access to schools and
20 public services on the basis of their ethnicity. 786.
21 The persecutory campaign as affecting the individual Muslim or
22 Croat in a town, even not in detention, was striking. Ahmed Hidic
23 described the situation in Bosanski Petrovac before he was driven out and
24 deprived of his properties. He said: "I was never in a detention camp
25 but the whole town of Bosanski Petrovac was like a big detention camp.
1 We could not leave and we were always afraid to go out. There was so
2 much killing going on around us and destruction of our houses and
3 businesses. The town was completely sealed off with check-points, and
4 there was a curfew from sunset to sunrise. There were night patrols, and
5 we could not get food. The electricity was cut and sometimes water was
6 also disrupted." P87, page 8. And it's cited in footnote 953.
7 Second, there was the takeover of the municipalities by force,
8 and during the attack Muslims and Croats were killed and ill-treated. In
9 the end, the Bosnian Serb leadership held 35 municipalities in their
11 Third, the persecutory campaign was expanded and more efficiently
12 implemented. Muslims and Croats were arrested, beaten and killed.
13 Private houses, mosques and Catholic churches destroyed. The goal was to
14 extinguish any memory of the Muslim and Croat presence. The unbearable
15 living conditions imposed on Muslims and Croats made it impossible for
16 them to remain. 729. They fled the region in huge numbers. Their
17 exodus was often regulated and organised by a resettlement agency run by
18 the Bosnian Serb authorities.
19 In Banja Luka, a resettlement agency managed all aspects of
20 relocation. Paragraph 392. The Crisis Staff set the procedures for
21 departure and used public institutions to implement them. Those who
22 wanted to flee had to file about 15 different documents to obtain what
23 they described as permission for resettlement. The final insult to the
24 people being persecuted was that this ethnic cleansing bureaucracy
25 required each of them to pay a fee for every certificate.
1 To efficiently implement the ethnic cleansing, or as
2 Mr. Krajisnik said "ethnic division," trial judgment 911 and 1097,
3 thousands of Muslims and Croats were detained in more than 350 detention
4 centres, often within public facilities. Paragraph 810.
5 Adil Draganovic describes his detention at Manjaca camp in
6 Banja Luka. "Every night, every day we were beaten, and that beating
7 would then last for a half an hour, 45 minutes or an hour. One was using
8 a cable to beat, another a baton. Two were using their boots, kicking us
9 in the stomach, in the chest, in the mouth, and the others were beating
10 me at the same time. Once you fall down, then they beat you in an even
11 worse way. They would be kicking with the boots. I don't know how I
12 survived that night." Reference P519B and trial transcript 5009 to 510
13 cited in trial judgement 386, footnote 871.
14 He goes on to say: "And then I can also remember permanent
15 verbal humiliation, so to speak. They told us that we weren't a people
16 of any kind. They said, 'What do you want? Do you want a state? You're
17 not going to have one. You'll be like the Palestinians. Look we Serbs,
18 we got our state. We've got the Serbian Bosnia-Herzegovina. You're
19 going to be killed, all of you here in the camp are going to be killed.'"
20 And how they made the people feel is best expressed in the
21 paragraph that follows. "The humiliations took place in these barns
22 where we stayed and in which the conditions were totally inhumane. We
23 were smaller than mice. Our lives were not worth the life of a mouse."
24 P519C, transcript 5450 to 5452, trial judgement 386, footnote 871.
25 And he does say that this -- these conditions were so severe that
1 in the first month he lost 26 kilos.
2 But this is just the tip of the iceberg, as it were, as to how
3 brutal the conditions were. Women, pregnant women, young girls, even as
4 young as 13 years old, were raped on a regular basis while men were
5 forced to engage in degrading sexual acts with each other. Trial
6 judgement 800 and 304.
7 Around -- and just in terms of Mr. Krajisnik and his knowledge
8 about what was going on, I refer you to paragraphs 1041, 1046 and 1047 as
9 examples of Mandic's communications with -- Mandic, who is the Minister
10 of Justice and responsible for detention facilities, and his
11 communications with Mr. Krajisnik about really what was going on in the
12 detention facilities.
13 Around 3.000 Muslims and Croats were killed. Large numbers while
14 in detention. These killings took many forms, from shooting, beating to
15 death, suffocating, burning alive, being forced to jump off a bridge and
16 being shot in the water, digging one's grave before being shot or having
17 one's throat slit, being shot while performing forced labour or acting as
18 human shields, dying of heatstroke through lack of water. Mass
19 executions and exterminations took place in 14 municipalities. I refer
20 you to paragraph 663 and Exhibit P285A which is the -- a statement by a
21 witness describing the sheer horror of being shot and luckily not being
22 killed, then being put into a building which was set alight by accelerant
23 poured over the bodies, and he was the only fortunate person to escape.
24 The last person who was asked to set the bodies alight when he refused
25 was killed and his recollection of the pleading of this man not to be
1 shot was the following: "The sound of his voice will stick in my mind
2 forever. They just shot him dead and added him to the pile of bodies."
3 The Bosnian Serb campaign of terror and death caused the killing
4 of 3.000 and the expulsion of more than a hundred thousand. By the end
5 of 1992, Krajisnik had achieved his personal and political goals through
6 criminal means. The region was cleansed of Muslims and Croats. His
7 obsession had become reality. Paragraph 950.
8 The ethnic composition of the region had been changed over the
9 course of one year not through peaceful negotiation but through a massive
10 and systematic ethnic cleansing campaign. Krajisnik could finally and
11 proudly explain on public television that what was being said, that we
12 are possessing the territories ethnically populated by other national
13 communities, that is not true. Paragraph 1076. At the time he said
14 that, he was right, but he omitted to say that only nine months before
15 the same territories were ethnically populated by the other national
16 communities. Krajisnik and his fellow JCE members implemented a massive
17 criminal campaign using state structures. They mobilised thousands of
18 Serbs serving within these structures to commit the crimes on the ground.
19 For the results of this ethnic cleansing campaign Krajisnik
20 deserves a life sentence.
21 This brings me to the second point and that is the role Krajisnik
22 played in the crimes.
23 Krajisnik was a key member of the joint criminal enterprise. He
24 was, as the Trial Chamber found at paragraph 1119, one of the driving
25 forces behind it. He was one of the leaders at the centre of power.
1 Paragraph 180. He wanted the land ethnically pure so that he could
2 finally claim that it belonged to his people. Paragraph 1076. He did
3 not want to share land or power with other ethnic groups, and in order to
4 achieve total Serb domination and statehood Krajisnik knew that it was
5 necessary to push Muslims and Croats out by force. Paragraph 1119.
6 He accepted heavy human cost to achieve his political dream, the
7 death and the destruction of thousands of lives and unfathomable human
8 suffering. 111 -- 1119. He intend the horror to take place and
9 formulated, initiated, promoted, and developed this policy to advance the
10 criminal plan. 1121A.
11 While an ordinary human might expect a man of his power and
12 authority to prevent the crimes against the population, he proceeded
13 without pause. Paragraph 1160. Never did he express regret. Paragraph
14 1115. Krajisnik and Karadzic, two bodies and one soul.
15 Trobajevic, former deputy minister under Krajisnik, trial
16 transcript 11422, used that description to talk about how they ran the
17 Republika Srpska as a personal fief exercising direct influence at all
18 levels of Bosnian Serb affairs, paragraph 987, is how the Trial Chamber
19 summed up the evidence.
20 From this position, Krajisnik participated and promoted the
21 implementation of his plan. 1121A. And the plan was implemented in all
22 its steps. He directed the Bosnian Serb government and forces to
23 implement the criminal plan. 1121D. As a senior political leader he
24 denied the reality and even provided misleading information about the
25 crimes to mislead the international community. 1121K. He was at the
1 apex of power, at the apex of a state pyramid. From his position he
2 directed, encouraged, instigated the lower levels down to the bottom to
3 implement the criminal plan.
4 Krajisnik did not experience the horror he caused others.
5 Krajisnik made the others experience the horror he wanted, horror that
6 could have been avoided but horror that was undertaken in order to
7 achieve an ethnically pure Bosnian Serb state. Twenty-seven years of
8 imprisonment is unreasonable for being one of the driving forces behind
9 catastrophic events that resulted in so many killings and so many
11 The Prosecution accepts that the Trial Chamber took notice of the
12 principles governing sentencing and acknowledged that the gravity of the
13 crime is the primary factor to be taken into account. However the
14 question is whether it gave them sufficient attention in determining the
15 sentence. I refer you to Galic appeal judgement 442.
16 The contrast between the facts as found and sentence imposed is
17 striking and gives us the answer to this question. The sentence imposed
18 cannot be reconciled with the principles. It cannot be reconciled with
19 the principles of retribution because it does not make plain the
20 condemnation of the international community for this conduct. It cannot
21 be reconciled with the principles of deterrence either. Twenty-seven
22 years for a man who abused his position of power to implement a
23 prosecutorial campaign that changed the ethnic composition of
24 Bosnia-Herzegovina undermines respect for the international legal order.
25 In light of the fact as found by the Trial Chamber the sentence -- or
1 facts as found by the Trial Chamber, the sentence is manifestly
2 inadequate. If falls outside the range that was available to the Trial
3 Chamber or to use the Appeals Chamber's words in Galic, it was taken from
4 the wrong shelf. I refer you to paragraph 455.
5 In conclusion, it's our respectful submission that in light of
6 the massive nature and gravity of the crimes and the crucial role played
7 by Krajisnik, the only sentence that can be reconciled with the
8 sentencing principles is life imprisonment.
9 Thank you.
10 JUDGE POCAR: I thank you, Mr. Kremer.
11 I will now give the floor to the Defence for the response.
12 MR. A. DERSHOWITZ: Your Honour, I will respond only --
13 THE INTERPRETER: Microphone, please.
14 MR. A. DERSHOWITZ: -- to the joint criminal enterprise.
15 I plan to respond only to the points relating to the joint
16 criminal enterprise in five minutes and then have the defendant himself
17 respond to the general sentencing points, with the permission of the
19 MR. KREMER: I leave it up to the Court, but I understood from
20 Mr. Dershowitz's role, it was in respect of the legal point this morning
21 on joint criminal enterprise. We've had two discussions on it. We're in
22 the matter of sentencing where I don't think I even used the word joint
23 criminal enterprise. I'm not sure what Mr. Dershowitz can add to my
25 [Appeals Chamber confers]
1 MR. A. DERSHOWITZ: Your Honour, I think I can add --
2 [Appeals Chamber confers]
3 JUDGE POCAR: Well, we are on the Prosecution appeal.
4 MR. A. DERSHOWITZ: I understand, Your Honour. I wanted to limit
5 my remarks simply to the effect of JCE on the sentencing. That's the
6 only issue I would like to address in three to five minutes.
7 JUDGE POCAR: That's fine.
8 MR. A. DERSHOWITZ: With the permission of the Court, Your
9 Honour. Thank you very much. The Prosecution mentions that they did not
10 mention JCE. Of course not, but the whole thrust of their sentencing
11 approach is through the vehicle of JCE, that is, there would be no way if
12 you looked from the beginning on and you looked only at Mr. Krajisnik's
13 conduct that you could claim that a sentence in excess of even a small
14 number of years would be excessive. The only way they get to their
15 sentencing argument is by working backwards, by looking at the crimes on
16 the ground and holding him responsible for all of those crimes and then
17 leaving a very, very brief time in their argument for showing what his
18 responsibility was and they cite particularly paragraph 1041 to show
19 Mr. Krajisnik's responsibility.
20 If you look at 1041, Mr. Krajisnik is performing his function.
21 He is trying to exchange prisoners. There is no mention of civilian
22 prisoners. There is mention of prisoners of war and the whole focus of
23 that conversation with the Minister of Justice is to exchange prisoners
24 of war on one side with prisoners of war on the other side. The claim is
25 that Mr. Krajisnik directed, encouraged, I'm quoting from them. If they
1 could prove that, they could have their case decided under section 7(a).
2 They wouldn't have to use joint criminal enterprise. It's precisely
3 because they cannot prove that he directed, encouraged, because the Court
4 made a ruling that there was no effective control. And then they point
5 to several other political points, that he provided misleading
6 information. Misleading information is the job of diplomats to provide
7 all over the world, and you don't expect a diplomat to provide
8 information that journalists or people in the international community
9 would find to be absolutely accurate.
10 And he says that they, they, putting together Mr. Karadzic and
11 Mr. Krajisnik, of course there's an enormous difference. One was the
12 commander-in-chief and the other was in a legislative function.
13 And finally, just one brief point. One of the reasons why the
14 Trial Court was so mislead and misunderstood so greatly the political
15 nature of Mr. Krajisnik's rule -- role was precisely there was
16 ineffective assistance of counsel. The two are directly and closely
17 related. A decent lawyer would have put on expert witnesses, would have
18 studied the history, would have learned this case, and if there had been
19 a decent lawyer who understood the need for expert witnesses,
20 Your Honours, we would not be here today.
21 JUDGE POCAR: Thank you, Mr. Dershowitz.
22 I now turn to Mr. Krajisnik to continue the response. Fifteen
24 MR. KRAJISNIK: [Interpretation] Thank you, Your Honours. I must
25 say that after the presentation like this by the Prosecutor I remain
1 speechless. The Prosecutor seems to have done something that was not an
2 appeal. There were no arguments. There was no response. There was no
3 evidence. He's repeating everything that he stated to me eight years
5 I really cannot understand that today again he's repeating that
6 on the 18th of March, Mr. Krajisnik called to arms. Your Honours, you
7 have the video footage. I called for us to go on the field and draw maps
8 in accordance with an agreement by the three ethnic communities. The
9 Prosecutor, who I commended in the beginning for good cooperation, today
10 is trying to mislead in order to show how Krajisnik has not been punished
11 enough because all of this information is correct.
12 Mr. Dershowitz said it well. I'm just going to repeat that had I
13 had an adequate defence -- I'm a man who doesn't blame anyone. And had
14 there been 150 witnesses here and had someone interpreted this statement
15 of the 28th of February, they would have seen that Momcilo Krajisnik
16 spoke to a group of deputies who said, "We don't want a Serbian Republic
17 which we got under Cutileiro's plan. We would like a Krajina state to
18 divide both Bosnia and Herzegovina." I said we can't do that. Let's ask
19 these people. Do we want Republika Srpska, which Mr. Cutileiro gave to
20 us, or are we going to create bedlam in the whole international community
21 and have two independent states being divided?
22 On the 28th of February, we had the first version of the
23 Cutileiro Plan where it says, and you can see it there, that I, in my
24 activities, am committed to that. My activities are one thing, and
25 negotiations are something else. In the negotiations I urge pure Serbian
1 ethnic territories. We spoke about Serbian territories where there was
2 an absolute and a relative Serbian majority, and then we had Muslim and
3 Croatian communities. This was a benign statement, and that is why I
4 believe that it is a shame had we had the experts -- well, I told
5 Mr. Stewart, and I'm not going to say anything bad now. I told him the
6 Prosecution has nine experts. If we don't know what is well, we know
7 what is expensive. If the Prosecutor can have nine, let us at least have
9 So, Your Honours, they say that there was a transfer of the
10 population and there is information that you have on that and I pointed
11 out to that a lot and the Prosecutor saw that. 480.000 Serbs left the
12 federation, and 420.000 Muslim left Republika Srpska. So now the
13 Prosecution should have said out of those 420.000 Muslims how many of
14 them were expelled and how many left because people were fleeing from the
16 I indicated that 380.000 Muslims left the federation. They were
17 running away from war, while 400 .000 Serbs ran from Republika Srpska,
18 fleeing from the war again. This is my objection to the Prosecutor.
19 They should have said Mr. Krajisnik issued two statements against ethnic
21 In December, I made two statements where I opposed ethnic
22 cleansing. In July, there was a call to all members of the SDS. It was
23 issued that other ethnic groups must be respected. There was such
25 People in the field did all kinds of things. I'm not saying that
1 they didn't. Now from what I understand, the Trial Chamber here, because
2 they saw that the two sides were not equal enough, they wanted to make a
3 compromise, and they said because of lack of evidence they convicted
4 Krajisnik, and now the Prosecution insists that this is not enough
5 because all of this is correct.
6 I would just like to remind you the Prosecution today said that
7 on the 3rd of April Mr. Antic testified in connection with the crimes in
8 Bijeljina trying to impute that Krajisnik was aware of them. You also
9 have the testimony of Mrs. Plavsic. She testified here that she was sent
10 by the Presidency of Bosnia and Herzegovina to Bijeljina by Izetbegovic,
11 and when she was asked, "Did you inform Krajisnik," she said, "No, I did
12 not. It was not my obligation to do so."
13 I testified here. I said that I tried to receive information by
14 telephone and that I was cut off by Mauzer, who is also being implicated
15 in this JCE.
16 Also discussed here is how Mandic said that he informed Krajisnik
17 about the crimes. I stated this in my appeal. You will see.
18 Mr. Mandic, when he was questioned by the Prosecutor said, "I
19 informed Krajisnik about everything that I knew," but when the lawyer
20 asked him, "What did you know?" "I knew what was going on in the Kula
21 prison." "Were there any crimes there?" "No." You will find that
23 Now simply we're substituting ideas in order to disregard
24 everything that is positive.
25 I am the only politician who publicly before 100.000 people in
1 Banja Luka in 1993 or 1994 stated, "We don't hate Muslims and we don't
2 hate Croats." I didn't state that before The Hague Tribunal. I didn't
3 say that thinking that I would be held responsible for anything. All I
4 said was that it is wrong for any man to hate another man on the basis of
5 his ethnicity. I love my own people. All I wanted was to implement the
6 agreement that we had in early 1992.
7 Your Honours, that agreement was -- well, on the 28th they said
8 he said cleanse territories, and then on the 18th of March there was a
9 different version of Cutileiro's plan, and you can see what I was
10 committed to. I urged the support of those principles, and I supported
11 that. You cannot advocate the exchange of territories, ethnically pure
12 territories. That's a pejorative idea and no sensible person would
13 advocate that. This is a consequence of war.
14 I would just like to mention one more thing. There was a nexus
15 between the things on the ground and the leadership. If we look at the
16 municipality of Bosanski Novi
17 7.000 Muslims were relocated. When he was asked, "Did you inform the
18 Pale leadership," he said, "I did not." Why did the Muslims leave? They
19 left because "there were special units from Croatia, some paramilitaries
20 who were disturbing these people." When those people came to see me, I
21 didn't have any communication with Pale. Then I went to UNPROFOR upon
22 their request and helped them to leave. We have the same case with
23 Petrovac, the same case with Prnjavor, Kljuic, Kotor Varos, and all the
25 I would like to say one more thing in connection with Bijeljina.
1 I stated in my appeal brief precisely, and this is what I object in
2 Mr. Kremer's presentation, that in Bijeljina the Serbs had majority rule
3 in the entire municipality. There was a majority of the population and
4 all the deputies were in a majority. So there was no reason for the Serb
5 side to begin the war there in order to take over power. You will see
6 that there was an Assembly session of ours on the 7th of March when it
7 was publicly said that the Serb side -- peace suits them.
8 What happened in Bijeljina? In Bijeljina local people and
9 outsiders got into a fight. Somebody came on horseback. Somebody threw
10 a bomb, and the war began and there was no discussion who did what then,
11 and especially because before that, there was a crime that occurred in
12 Brod and in Kupres.
13 I'm going to end with this, with a request, Your Honours.
14 Please, all I would like you to do is to review all the arguments. If
15 what Mr. Kremer says were true, I would be an unhappy man. I'm unhappy
16 that the war had taken place, but this is not correct. The Trial Chamber
17 did not take into account many elements just because I didn't present
18 evidence on that. I testified here for 40 days in order to cover the
19 holes that were not covered in my defence.
20 And once again, thank you very much.
21 JUDGE POCAR: Thank you, Mr. Krajisnik. I give the Prosecution
22 the floor for their reply. You have five minutes to do so.
23 MR. KREMER: I have nothing to add. Thank you.
24 JUDGE POCAR: Well, this concludes then the Prosecution's appeal.
25 According to the Scheduling Order --
1 THE INTERPRETER: Microphone, Your Honour.
2 JUDGE POCAR: There would be room now for -- sorry.
3 According to the Scheduling Order of 18 July, there will be room
4 now for a personal statement of Mr. Krajisnik if he wants to do so. It's
5 up to him to decide whether to take the floor for a maximum of 10 minutes
6 on a personal basis. You have the floor.
7 MR. KRAJISNIK: [Interpretation] It's a rule in life that
8 everything that begins lasts for a certain amount of time and then has an
9 end. So, Your Honours, after more than eight years, I hope that this
10 will mark the end of these proceedings in my case.
11 I have listened to all the arguments presented in the course of
12 the trial, and for the first time I experienced something that I never
13 believed before. I heard the suffering of the other side. During the
14 war all I heard was what happened to the Serbs. And I'm unhappy because
15 of that suffering. No one had the right, in the name of my people, to do
16 anything harmful to somebody else, never mind kill them.
17 I even told the lawyers, please, do not cross-examine these
18 witnesses. I don't want -- even if they could help me a lot, because
19 it's difficult when you see a young woman who lost her husband and a
20 child and now she's wandering all over the world thinking about the
21 revenge she could take on someone. And of course she would see a
22 criminal in me who, in her eyes, is guilty of all the evil deeds.
23 I did not want the war. I didn't want the war in spite of all
24 the charges, because war doesn't bring any good to anyone.
25 My parents taught me that, and it's an old saying, that if a
1 person wishes for war, may war find them in their own house. It's like a
2 curse. But when the war began, I did everything in order to achieve
4 A little bit earlier I heard that many went through misfortunes
5 that Krajisnik did not experience. Gentlemen, during the war I lost my
6 wife, and I had three underaged children living with me at Pale. My wife
7 was suffering from lupus systematicus and until August, because of her,
8 because she was sick, I had to stay with her, and then because of the
9 Muslim shelling her situation deteriorated and she had to go to Belgrade
10 where she died. And throughout the war I was doing my work and trying to
11 take care of my three underaged children.
12 I lost my uncle. I lost my cousins. I lost my place of birth.
13 I lost my place of residency. I lost my property, and I know what it
14 means for each person to be in the midst of war.
15 Of course I did not suffer as much as many others did. They
16 suffered much more than I did. And of course, I believe that it is a
17 great misfortune that happened in Bosnia and Herzegovina. And once I
18 stated this historical truth, and that is that people always said that in
20 close to a source of oil or petrol, because this is a region that
21 maintained peace only on the basis of compromise and tolerance and the
22 life together among the three people, but at the moment in time when
23 these people begin to quarrel, that conflict lasts for years and ill
24 deeds are remembered for a long time.
25 I followed the testimony here. Nobody ever presented a positive
1 example. I took part in positive examples. I'm not going to mention
2 them because I don't want to have the merit of that, but now when I watch
3 television and when I see what is happening in Bosnia and Herzegovina
4 I'm unhappy from where I am. There is no true reconciliation that has
5 taken root there. There they are now calculating how many of ours are in
6 The Hague
7 not, and then they applaud their own and scold the others. So there is
8 no reconciliation. The reconciliation does not occur just with the
9 punishment. There has to be forgiveness as well. So that is the way to
10 approach the person who is deemed guilty.
11 And crimes have not been forgiven. I have here witnessed people
12 who have admitted that they were guilty of crimes, and hundreds of times
13 they were stopped from committing suicide because it's difficult to live
14 with the crimes one committed and to recall those whom you did wrong.
15 If it means anything, I forgave all of those who I could consider
16 guilty or I could blame in my life. I believe that a solution is in
17 forgiveness, and I think that forgiveness cannot be attained through
18 punishment alone, especially because there is one trial going on here and
19 another one in Bosnia and Herzegovina.
20 I hope that this message will also be a message to people to stop
21 counting of how many of their people are at an advantage and how many are
22 not. All the people are equal here, especially when we think of those
23 who believe in God, because we know that before God we all must be the
25 By nature I'm a patriot, and in spite of people who believe that
1 there is no justice, I hope that you will correct the decisions of the
2 Trial Chamber, because being an optimist, I feel unfortunate but I do not
3 believe that I am guilty.
4 And excuse me, just one moment. I forgot to say something. I
5 would like to thank the Mr. Karganovic and Mr. Dershowitz team, and I'm
6 very grateful that they are here, and I'm very pleased with the objective
7 approach of Mr. Nicholls, which reminds me in a way of the things that I
8 was against, that -- and now when I see how much he has done in order to
9 secure some justice for me, I would just like to express my gratitude to
11 JUDGE POCAR: Thank you, Mr. Krajisnik.
12 This brings us to the conclusion of this appeal hearing. Before
13 closing, I would like to express our gratitude to the parties and their
14 counsel for the submissions and their constructive approach,
15 notwithstanding today's heavy schedule.
16 I would like also to thank all those who gave their assistance in
17 the holding on this appeals hearing, and a special thanks to the
18 interpreters who, as usual, contributed efficiently to facilitate the
19 consideration of -- of the appeal and facilitate our discussions.
20 The Appeals Chamber will now rise. The hearing is adjourned.
21 --- Whereupon the Appeals Hearing
22 adjourned at 5.52 p.m.