Tribunal Criminal Tribunal for the Former Yugoslavia

Page 209

1 Wednesday, 26 November 2003

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

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

6 JUDGE MERON: Please be seated.

7 Madam Registrar -- sorry, Mr. Registrar, would you please call

8 the case on the appeal's agenda. I get so used to having a Madam

9 Registrar there.

10 THE REGISTRAR: The case number is IT-98-33-A, the Prosecutor

11 versus Radislav Krstic.

12 JUDGE MERON: Thank you.

13 I want to make sure that the interpreters can hear me. Please

14 raise your hand if you can. Thank you very much.

15 The appellant, General Krstic, is in the courtroom. Mr. Krstic,

16 can you hear me?

17 THE APPELLANT: [Interpretation] Yes, Your Honour.

18 JUDGE MERON: Defence and Prosecution, I take it that you can all

19 hear me.

20 I would now like, for the record, to ask for the appearances of

21 the parties. Could we please first have the appearance for the Defence.

22 The Defence.

23 MR. PETRUSIC: [Interpretation] Good morning, Your Honour,

24 Mr. President, Your Honours. My name is Nenad Petrusic. With me in the

25 Defence team for General Krstic is Mr. Sepenuk. During the appeals

Page 210

1 proceedings in the courtroom with us will be our colleague, Sandra

2 Djuric. Thank you.

3 JUDGE MERON: Thank you. Could we now have the appearances for

4 the Prosecution.

5 MR. FARRELL: Yes. Good Morning, Mr. President, Your Honours.

6 Appearing for the Prosecution will be myself, Norman Farrell. And also

7 appearing for the Prosecution throughout the appeal will be Mr. Mathias

8 Marcussen, Mr. Xavier Tracol and Ms. Magda Karagiannakis, who will appear

9 during the Defence -- the Defence appeal. And with us today is our case

10 manager, Ms. Lourdes Galicia. Thank you.

11 JUDGE MERON: Thank you.

12 I would now like to explain how we are going to proceed during

13 this hearing. As the registrar announced, the case on our agenda is

14 Prosecutor versus Radislav Krstic. This is an appeal against the

15 judgement issued by the Trial Chamber on the 2nd of August, 2001. The

16 Trial Chamber convicted Mr. Krstic of genocide under Article 4 of the

17 Tribunal's Statute for his alleged role in the execution of between 7.000

18 and 8.000 Bosnian Muslim men following the fall of Srebrenica. This was

19 Count 1 of the indictment.

20 Mr. Krstic was also convicted of persecution as a crime against

21 humanity under Article 4 -- 5 -- under Article 5 for acts committed

22 between 10th and 13th of July, 1995. This was a part of Count 6 of the

23 indictment.

24 Finally, Mr. Krstic was convicted of murder as a violation of the

25 laws or customs of war under Article 3 of the Tribunal's Statute. This

Page 211

1 conviction was for Count 5 of the indictment.

2 The Trial Chamber acquitted Mr. Krstic of complicity to commit

3 genocide, this was Count 2; and of deportation as a crime against

4 humanity, this was Count 7. The Trial Chamber also did not enter a

5 number of convictions on the ground that they would be impermissibly

6 cumulative. These were convictions for extermination as a crime against

7 humanity, Count 3; murder as a crime against humanity under Article 5,

8 Count 4; persecution under Article 5, with respect to acts committed

9 between 13th and 19th of July, 1995 - this was a part of Count 6 - and

10 inhumane acts or, alternatively, forcible transfer as a crime against

11 humanity under Article 5, Count 8.

12 Mr. Krstic was sentenced to a single sentence of imprisonment for

13 46 years. Both Mr. Krstic and the Prosecution appealed the judgement.

14 This past Friday we have heard arguments concerning the weight

15 and credibility of the additional evidence and of rebuttal material

16 admitted in this appeal. Today and tomorrow we will hear arguments on

17 the merits of the appeal. Today we are proceeding in the absence of

18 Judge Schomburg pursuant to Rule 15 bis. Rule 15 bis (A) permits a

19 hearing to continue in the absence of a Judge where, for illness or other

20 urgent personal reasons or for reasons of authorised Tribunal business,

21 he's unable to continue sitting in a part-heard case for a period which

22 is likely to be of short duration and the remaining Judges of the Chamber

23 are satisfied that it is in the interest of justice to do so. Justice

24 Schomburg is away on Tribunal authorised business and he will join us

25 again tomorrow. His absence has been discussed by the remaining Judges,

Page 212

1 and we are satisfied that it is in the interest of justice that we

2 proceed with today's hearings.

3 Before giving the floor to counsel for both parties, I will

4 summarise the grounds of appeal presented by the parties in their written

5 submissions.

6 The first ground of appeal of the Prosecution concerns cumulative

7 convictions. The Prosecution submits that the Trial Chamber erred in

8 vacating as cumulative convictions in relations to Count 3, which is

9 extermination; Count 6, persecution as a crime against humanity for the

10 murders committed between 13th and 19th of July, 1995; Count 4, murder as

11 a crime against humanity; and Count 8, inhumane acts as crimes against

12 humanity. The Prosecution argues that convictions for genocide and

13 extermination, for genocide and persecutions, for persecutions and

14 murder, and for persecutions under Article 5 and other inhumane acts

15 under Article 5 based on this same conduct, are not impermissibly

16 cumulative.

17 The second ground of appeal of the Prosecution concerns the

18 sentence imposed by the Trial Chamber. The Prosecution argues that the

19 Trial Chamber erred in imposing a sentence of 46 years and that the

20 appropriate sentence is instead life imprisonment. First, the

21 Prosecution argues that the sentence was inadequate in light of the

22 gravity of the offences; second, it argues that the sentence is in

23 disparity with comparable cases decided by the International Criminal

24 Tribunal for Rwanda; third, that the Trial Chamber erred in basing the

25 sentence on the fact that, in the Trial Chamber's view, Mr. Krstic's

Page 213

1 guilt was less than the guilt of other Bosnian Serb high political and

2 military officials; finally, the Prosecution argues that the Trial

3 Chamber should have found Mr. Krstic's state of mind to be an aggravating

4 factor in sentences.

5 The first ground of appeal of the Defence relates to Mr. Krstic's

6 conviction for genocide. The Defence argues that the Trial Chamber erred

7 in finding Mr. Krstic guilty of genocide because it wrongfully equated

8 displacement of a group with destruction of a group. The Defence also

9 argues that the Trial Chamber erred in finding that Mr. Krstic had the

10 necessary intent to commit genocide. Specifically, the Defence argues

11 that the Trial Chamber's conclusion is not supported by sufficient

12 factual bases.

13 The second ground of appeal of the Defence concerns the discovery

14 practices of the Prosecution. The Defence argues that those practices

15 violated Mr. Krstic's right to a fair trial and requests a retrial. This

16 argument has four parts: First, the Defence argues that the Trial

17 Chamber erred in finding that the Prosecution was not bound by Rule 65

18 ter and --

19 THE INTERPRETER: The interpreters kindly ask the President to

20 slow down, please.

21 JUDGE MERON: I'm sorry. I will.

22 Let me repeat the sentence. First, the Defence argues that the

23 Trial Chamber erred in finding that the Prosecution was not bound by Rule

24 65 ter, as it then was, to disclose copies of exhibits prior to the

25 Prosecution opening its case; second, that the non-disclosure of a tape

Page 214

1 and its subsequent playing in court prejudiced Mr. Krstic at trial;

2 third, that the Prosecution failed to disclose to the Defence exculpatory

3 material in accordance with the terms of Rule 68; finally, the Defence

4 argues that the Prosecution violated Rule 68 by failing to disclose

5 evidence relating to the investigation of two witnesses called proprio

6 motu by the Trial Chamber.

7 The third ground of appeal of the Defence is that the Trial

8 Chamber erred in its findings on various factual and legal issues. The

9 Defence argues that the Trial Chamber did not have sufficient facts to

10 support a number of conclusions it has reached. Those conclusions relate

11 to crimes committed in Potocari, to the alleged participation of the

12 Bratunac Brigade in executions at Branjevo Farm and Pilica Dom, to the

13 existence of a parallel chain of command, and to the date on which Mr.

14 Krstic assumed command of the Drina Corps.

15 The fourth and final ground of appeal of the Defence relates to

16 sentencing. The Defence argues that the Trial Chamber did not

17 sufficiently take into account the sentencing practices of Bosnia and

18 Herzegovina since the alleged commission of the crimes and also that the

19 Trial Chamber failed to properly take the personal circumstances of

20 Mr. Krstic into account.

21 I would like now to remind the parties about the criteria

22 applicable to errors of fact or law alleged on appeal. As the Appeals

23 Chamber has pointed out on many occasions, the appeal is not an occasion

24 for the parties to repeat their case. This is not a de novo trial. On

25 appeal, the parties must limit their arguments to the questions which

Page 215

1 fall within the framework of Article 25 of the Tribunal's Statute. In

2 general, the Appeals Chamber does not hear any arguments but those

3 founded on errors of law which allegedly would invalidate the judgement.

4 Only exceptionally may a party raise a question of general interest for

5 the case law of the Tribunal. As to errors of fact, only those which

6 would have caused a miscarriage of justice will be considered.

7 As the parties should be well aware, the Appeals Chamber requires

8 the appellant who alleges errors of fact to demonstrate that no

9 reasonable trier of fact could have reached the conclusion being

10 challenged and that the error of fact is of such gravity as to produce a

11 miscarriage of justice.

12 I would also ask the parties to be precise and clear in their

13 presentations of the grounds of appeal and their responses and replies.

14 Let me now outline the precise order in which we will hear the arguments.

15 This is the order set out in our scheduling order of 19 November 2003.

16 We will first hear the appeal by the Prosecution. The counsel

17 for the Prosecution will present his arguments for 1 hour and 30 minutes.

18 We will then break for 30 minutes. Upon our return, the Defence will

19 present its response also for 1 hour and 30 minutes. We will then break

20 for lunch for 1 and a half hours. After lunch, the Prosecution will have

21 20 minutes to present its reply. At that point, we will begin the

22 hearing of the Defence appeal. The Defence will have one hour this

23 afternoon to commence its submissions. We will then conclude our hearing

24 for today and resume at 9.30 a.m. tomorrow. At that point, the Defence

25 will have another hour and 30 minutes to complete its submissions. We

Page 216

1 will then break for 30 minutes. Upon the return, the Prosecution will

2 have 1 hour and a half hour for -- 1 hour and a half hours for its

3 response. We will then break for 30 minutes. Upon our return, the

4 Prosecution will have another hour to conclude its response. The Defence

5 will then receive 30 minutes to reply. After that, Mr. Krstic, if he so

6 chooses, may address the Appeals Chamber for 15 minutes.

7 If there are no questions about the schedule which I have

8 outlined - and I presume there are none - there is one matter which we

9 have to deal with before we begin the hearing of arguments. That

10 outstanding matter is from Friday's hearing, and we need to resolve it

11 now. As the parties recall, on Friday the Defence moved orally to admit

12 as additional evidence on this appeal the testimony of Mr. Richard Butler

13 in the case of Prosecutor against Blagojevic. The Prosecution indicated

14 that it had no objection to the motion and the Appeals Chamber granted

15 it. I understand the Defence wishes to put Mr. Butler on the stand; is

16 that correct?

17 MR. SEPENUK: That's correct, Your Honour.

18 JUDGE MERON: Thank you. In this case, I would call Mr. Butler

19 as a witness for the Defence. The Court is calling Mr. Butler.

20 [The witness entered court]

21 JUDGE MERON: We will now proceed to the swearing in of the

22 witness.

23 Mr. Butler, you've taken the stand. Can you hear me, Mr. Butler?

24 THE WITNESS: Yes, sir, I can.

25 JUDGE MERON: Thank you. Mr. Butler, may I ask you, please, to

Page 217

1 read the solemn declaration given to you by the usher.

2 THE WITNESS: I solemnly declare that I will speak the truth, the

3 whole truth, and nothing but the truth.


5 JUDGE MERON: Thank you, Mr. Butler. You may now be seated. And

6 Mr. Butler, you will now be asked questions by the Defence.

7 MR. SEPENUK: Thank you, Your Honour.

8 Examined by Mr. Sepenuk:

9 Q. Good morning, Mr. Butler.

10 A. Good morning, sir.

11 Q. I'm Norman Sepenuk, one of the lawyers for General Krstic.

12 Mr. Butler, you are -- have been testifying as a military expert

13 in the case concerning Colonel Blagojevic; is that correct, sir?

14 A. Yes, sir, that is correct.

15 Q. And you've been testifying for a number of days in that matter.

16 A. Yes, sir, that is correct.

17 Q. And if I was to ask you the same questions today that you were

18 asked and have been asked during the Blagojevic trial, I take it that

19 your answer would be the same?

20 A. Yes, sir, that is correct.

21 Q. Are there any exceptions to that?

22 A. My understanding, in reviewing the transcripts, is there are

23 three minor corrections which are the result of the transcriber not

24 properly hearing a particular name. So other than that, it's all the

25 same.

Page 218

1 MR. SEPENUK: That's all I have, Your Honour. My understanding

2 is the three specific errors are known by Mr. Farrell, and Mr. Farrell

3 will now, with the Court's permission, bring out the three errors that

4 exist.

5 JUDGE MERON: Thank you, Counsel. Mr. Farrell.

6 MR. FARRELL: Thank you.

7 Cross-examined by Mr. Farrell:

8 Q. Mr. Butler, if I may just ask you about the three parts of your

9 testimony where you said they don't accurately reflect what you said

10 during the Blagojevic trial.

11 MR. FARRELL: If I may, Mr. President, ask that the registrar

12 give a copy of the testimony to Mr. Butler so that I can confirm which

13 parts they are.

14 Q. Mr. Butler, could you just confirm that what you have in front of

15 you is a document. The front page is titled "Submission of the testimony

16 of Richard Butler pursuant to the order of the Appeals Chamber granting

17 appellant's oral Rule 115 motion." And then if you can just check the

18 top of the page, sir. The page numbers -- registry page numbers are 5423

19 to 5353. Does that appear to be a copy of what you have?

20 A. Yes, sir, that's correct.

21 Q. If I could just ask you to look at the document, you'll see on

22 the second page of the document that there are three annexes referred to.

23 Annex A relates to your transcript pages 4608 to 4624. Annex B relates

24 to the transcripts of your testimony in Blagojevic, pages 4510 to 4520;

25 and Annex C relates to your testimony, transcript pages in the Blagojevic

Page 219

1 trial, that is, 4699 to 4736. Are those the passages you have before you

2 as well?

3 A. Yes, sir, that is correct.

4 Q. If I could just ask you to turn to -- the first page I'd like to

5 refer to is registry page 5412, in the top right-hand corner, typed.

6 Now --

7 A. Yes, sir.

8 Q. Now, the copy that I have has some handwriting on it, because

9 that's the copy we made this morning of the document. Just to be sure,

10 is there handwriting on this page in your copy?

11 A. Yes, sir.

12 Q. Okay. If you could just ignore the handwritten part, please, and

13 go to the typed part. At line 11, a question starts. Then there's a --

14 within the same question, there's a break at line 16, and the question

15 continues: "What in particular did Mr. Obrenovic say was the problem

16 that his unit was dealing with in the murder of some 1.000 Muslim

17 prisoners on the 16th of July at the Branjevo Farm?"

18 Is your recollection that the words "what in particular did Mr.

19 Obrenovic say," is that your recollection of the question you were asked

20 during your testimony in the Blagojevic case?

21 A. No, sir. My recollection is that the question was: "What in

22 particular did Mr. Erdemovic say?".

23 Q. Thank you. If I could just ask that you go to another passage,

24 sir. That would be, in the top right-hand corner, registry page number

25 5406. Once again, it's your testimony in the Blagojevic trial. And at

Page 220

1 line 16 of that page, there is a question which -- sorry, at line 14 --

2 my apologies -- at line 14 there's a question that says: "So going back

3 to Mr. Erdemovic's men from Bratunac, what time did they arrive to the

4 Branjevo Farm?"

5 And in the transcripts at line 16 the answer is: "Based on the

6 testimony of the Krstic case of Mr. Obrenovic, they had arrived

7 approximately midday or noon." The answer, "Based on the testimony of

8 the Krstic case of Mr. Obrenovic" is that your recollection -- the word

9 "Obrenovic" -- is that your recollection of your answer given in the

10 Blagojevic case?

11 A. No, sir. That should be "Mr. Erdemovic."

12 Q. Just for clarification, once again, in the copy that you have, is

13 there a handwritten -- handwritten over the word "Obrenovic" is there an

14 "Erdemovic" handwritten over it?

15 A. Yes, sir.

16 Q. And that was just in the copy that was given to you. I wanted to

17 clarify that you didn't write that in.

18 A. That is correct, sir.

19 Q. If I could just ask you to turn right now to registry page 5376.

20 That's the registry page in this appeal in the top right-hand corner. On

21 this page, there is questions by Defence counsel in that case to you.

22 And as the questions proceed down to approximately line 18, there is a

23 response by the Defence counsel, the words being "all right." And then

24 after that, at line 19, there is a response which starts with the words

25 "the witness" and then continues "Your Honour, just to clarify that." Do

Page 221

1 you happen to recall whether this was you who spoke at this time?

2 A. No, sir. I believe that in this particular instance, it was Mr.

3 McCloskey, the Prosecutor, who was speaking.

4 Q. Thank you for bringing those to our attention, Mr. Butler.

5 MR. FARRELL: I will seek from the registrar, Your Honour, just

6 to have those clarified. I wanted to clarify those for the record for

7 the purpose of the arguing of the appeal. Other than that, I don't have

8 any questions for Mr. Butler, anything further. Thank you.

9 JUDGE MERON: Thank you. The Defence.

10 MR. SEPENUK: Yes. On Monday we did submit Mr. Butler's

11 testimony to the Tribunal and we present that testimony to the Appeals

12 Chamber, together with the correction that Mr. Butler has made this

13 morning.

14 JUDGE MERON: Thank you. The testimony of Mr. Butler, as

15 corrected by the amendments discussed this morning, will be adopted as --

16 for our -- as the record of our proceedings. So his prior testimony as

17 corrected has been adopted. Thank you.

18 MR. SEPENUK: Thank you, Your Honour.

19 And then just one very brief matter. We did submit

20 Mr. Obrenovic's testimony also on Monday pursuant to the Chamber's

21 granting of our Rule 115 motion. That has been submitted. Thank you,

22 Your Honour.

23 JUDGE MERON: Thank you, Counsel.

24 We can now begin the arguments. And I will give the floor to the

25 Prosecution to present its --

Page 222

1 [Appeals Chamber and legal officer confer]

2 JUDGE MERON: Oh, I'm terribly sorry. Mr. Butler, thank you very

3 much for your presence here. And you are excused.

4 THE WITNESS: Thank you, sir.

5 [The witness withdrew]

6 JUDGE MERON: Mr. Farrell, the floor is yours.

7 MR. FARRELL: Thank you, Mr. President. Before proceeding, I

8 should have noted that as the transcripts in the filing was referred to

9 by Mr. Butler, which is presently sitting on the witness table, they --

10 that should probably be simply made an exhibit to the hearing, as they

11 are the transcripts to which he referred to during this oral hearing as

12 part of his testimony. So if they could just be --

13 Thank you. I see that that's being done at the moment.

14 JUDGE MERON: This will be treated as an exhibit.

15 MR. FARRELL: Yes. Thank you, Mr. President.

16 In terms of the Prosecution appeal, the appeal will be argued by

17 Mr. Xavier Tracol and Mr. Mathias Marcussen, who are both at the counsel

18 table with me. If you'll excuse me, I'll just step out of the way so

19 they can get to the podium.

20 JUDGE MERON: Mr. Tracol, we will now hear your argument.

21 MR. TRACOL: [Interpretation] Good morning, President. Good

22 morning, Judges. [In English] -- good morning.

23 [Interpretation] Mr. President, dear Judges, the first ground of

24 appeal of the Prosecution has to do with the fact that the Trial Chamber

25 erroneously applied the cumulative conviction test. The Prosecution

Page 223

1 argues that the Trial Chamber erred in applying the test to genocide and

2 to crimes against humanity, on the one hand, and to persecution and other

3 crimes against humanity, on the other hand. Let me briefly recapitulate

4 the test as set out by the Appeals Chamber for the cumulative conviction

5 test before demonstrating how the Trial Chamber erred in the Krstic case.

6 The Appeals Chamber set out the test with relation to cumulative

7 conviction test in the Delalic decision, paragraphs 412 and 413, and the

8 same criterion or test or standard was confirmed in paragraphs 168 and

9 174 of the Kunarac test. It is the standard of the distinctly --

10 material distinct set. So the decision has to be taken on the crime

11 presenting a distinct element.

12 In the Krstic judgement, the Trial Chamber erred in the way it

13 applied the test to genocide and to crimes against humanity.

14 Let's first deal with the legal distinction between genocide and

15 crimes against humanity. The Trial Chamber concluded in paragraph 682 of

16 its judgement, which I'm going to quote, at the demand for an "all-out

17 systematic attack against a civilian population under Article 5 of the

18 Statute is included in the one, included to genocide, with the intention

19 to destroy a specific type of group." The Prosecution quotes that in

20 doing so the Trial Chamber erred in law inasmuch as legal elements

21 qualify genocide and crimes against humanity.

22 The Musema decision follows the Krstic judgement, and in that

23 decision the ICTR Appeals Chamber decided -- found that the proof of a

24 crime against humanity in the framework of a systematic attack against a

25 civilian population is not demanded for genocide. In the reverse, for

Page 224

1 genocides you have to have the proof that you have the intention to

2 destroy, all or in part, a group and -- to have a crime against humanity.

3 Therefore, indirectly the ICTR Appeals Chamber already found in the

4 Musema decision -- 366 and 367 of the decision -- that the elements are

5 quite distinct. In practice, the Prosecution finds that it is possible

6 to have a cumulative test in all cases in genocide and crimes against

7 humanity inasmuch as each offence presents a distinct element. In the

8 one hand, a generalised or systematic attack against the civilian

9 population for crimes against humanity, and the intention to destroy all

10 or in part a group as such, to have the crime of genocide.

11 Now, dealing with the way the test is applied to the cumulative

12 conviction test in genocide and extermination. The Trial Chamber, in

13 paragraph 685 of the judgement, says that "On the basis of the same act

14 it is not possible to convict somebody for both extermination and

15 genocide."

16 The Prosecution submits that the Trial Chamber erred in law in

17 applying the test to cumulative conviction. In this same Musema

18 decision, the Appeals Chamber of ICTR already set out the issue and

19 concluded with a different conclusion than the one of the Trial Chamber

20 in the Krstic case.

21 Three -- in paragraph 362 and 363 of the Musema decision, the

22 ICTR Appeals Chamber applied expressly the standard set out in the

23 Delalic case and looked at genocide and extermination --

24 JUDGE MERON: I wonder whether or not you are following too fast

25 a pace for if interpreters.

Page 225

1 MR. TRACOL: [Interpretation] I'm sorry. I'm sorry.

2 In the Musema decision, the Appeals Chamber said that the state

3 of mind, that the intention to destroy in all or in part a group is not

4 part of extermination. In the reverse, there is an element that is

5 necessary for crimes against humanity; in other words, a generalised or

6 systematic attack against the civilian population, and that element is

7 not necessary for genocide.

8 The ICTR Appeals Chamber concluded in paragraph 366 of the Musema

9 decision that the element of each offence are different. It concluded

10 that the conviction for genocide and extermination on the basis of the

11 same conduct is possible and permissible.

12 The Prosecution submits that we meet the Musema test and we say

13 that the Trial Chamber erred in law in not finding General Krstic guilty

14 of extermination. There is no reason why the Appeals Chamber should

15 change the decision made by the Appeals Chamber in the Musema case.

16 The Prosecution also submits that the reasoning and the

17 conclusion of the Musema case apply to this case and this Appeals Chamber

18 must draw the same conclusions. Therefore, the Prosecution argues that

19 the Trial Chamber did err in law by finding that an accused cannot be

20 found guilty on the basis of the same conduct for genocide and

21 extermination in paragraph 685 of the Krstic judgement. This is the

22 reason why the Prosecution respectfully asks the Appeals Chamber to

23 change the decision made as to not finding General Krstic for genocide

24 and extermination. It asks for paragraph 685 to be revised and to find

25 General Krstic also guilty of genocide and extermination.

Page 226

1 Let us now turn to the way the cumulative conviction test applies

2 to genocide and persecution. The Trial Chamber, in paragraph 684 of its

3 judgement, found that the offence of persecution does not include any

4 element that would not already be included in the will to -- of -- or to

5 destroy, which is demand by genocide." Therefore, the Trial Chamber did

6 not find General Krstic guilty of persecution.

7 In the Musema decision, the ICTR Appeals Chamber found that the

8 elements of genocide and of crimes against humanity are markedly

9 distinct.

10 The decisions of the ICTR Appeals Chamber as to the distinctive

11 elements of genocide and crimes against humanity also, therefore, apply

12 to persecution. Therefore, this Appeals Chamber must draw the same

13 conclusions. Based on the reasoning of the ICTR Appeals Chamber, in the

14 Musema decision, the Appeals Chamber is bound to conclude that there is a

15 distinctive element for prosecution as compared to genocide. Therefore,

16 logically, the Trial Chamber erred in applying the test for multiple

17 conviction with regard to genocide and conclusion. For the grounds

18 already set out by the ICTR Appeals Chamber in the Musema decision, the

19 Prosecution requires that this Appeals Chamber found that the Trial

20 Chamber erred in finding, in paragraph 684, that only the

21 characterisation of genocide must be held against General Krstic. We

22 therefore ask the Appeals Chamber to annul the conclusion of the Trial

23 Chamber, to revise paragraph 684 of the judgement, and to find General

24 Krstic cumulatively guilty of genocide and persecution.

25 Now, dealing with the way we apply the standard to persecution

Page 227

1 and other crimes against humanity. In paragraphs 675 and 676 of the

2 Krstic trial judgement, the Trial Chamber found General Krstic guilty of

3 persecution but not guilty of murder and not guilty of other inhumane

4 acts. The Trial Chamber defined the offences and found that the offence

5 of persecution demands an additional element, namely that the act was

6 committed for discriminatory grounds. However, the Trial Chamber

7 concluded without providing any explanation that murder and other

8 inhumane acts do not require any distinct element in relation to

9 persecution.

10 The Appeals Chamber has never had the opportunity to rule on the

11 general question of the cumulative conviction for persecution and other

12 crimes against humanity; however, Trial Chambers issued judgements in

13 relation to the issue, both before and after the Delalic decision was

14 issued in which the Appeals Chamber set out the criteria for cumulative

15 conviction tests. And Trial Chambers did issue rather diverging

16 conclusions, which I'm going to set out briefly.

17 In the Kupreskic trial judgement, Trial Chamber II found

18 Josipovic and Vladimir Santic guilty of persecution and murder, on the

19 one hand, and also for persecution and other inhumane acts. All the

20 parties appealed against the judgement; however, the Appeals Chamber has

21 not had an opportunity to rule on this issue in the Kupreskic case.

22 The Kupreskic trial judgement was issued before the Delalic

23 decision in which the Appeals Chamber set out the criterion relative to

24 cumulative conviction. However, the Prosecution argues that the legal

25 value of the trial judgement is intact inasmuch as the Trial Chamber

Page 228

1 looked into the same sources as the Appeals Chamber in the Delalic

2 decision. You have among them the Blockberger test, which apparently was

3 the foundation on which the Appeals Chamber rested in order to set out

4 the test with relation to cumulative conviction. In the view of the

5 Prosecution, the criterion of reciprocal specialty adopted and applied by

6 the Trial Chamber in the Kupreskic case, paragraph 685, is similar and

7 practically identical to the test that was eventually adopted by the

8 Appeals Chamber in the Delalic decision.

9 In the Kordic and Cerkez trial judgements, Trial Chamber III

10 found Dario Kordic cumulatively guilty of persecution and murder based on

11 the same conduct. It also found the two co-accused cumulatively guilty

12 of persecution and other inhumane acts. And like the Kupreskic trial

13 judgement, Kordic and Cerkez trial judgement was issued less than one

14 week after the Delalic decision. In paragraphs 814 to 816 of the said

15 trial judgement, the Trial Chamber expressively said that it relied on

16 the test -- the cumulative-conviction test as set out by the Appeals

17 Chamber in the Delalic decision. Neither of the two convicted people

18 appealed against this cumulative conviction test; and therefore the

19 judgement is final with relation to the issue.

20 In the Kvocka trial judgement, Trial Chamber I, which was made up

21 of exactly the same Judges as in the Krstic trial judgement, found that

22 the crime of persecution, when dealing with the same acts committed

23 against the same victims, cover the same -- cover the same facts. The

24 other facts incriminated will make up crimes against humanity if they

25 include an additional distinct element, which is that of discrimination,

Page 229

1 for one of the grounds set out above. Paragraph 220 of the Kvocka

2 judgement, it says that murder does not include any distinction element

3 with regard to persecution. Therefore, the Trial Chamber thought and

4 found that the offence of persecution is more specific than murder.

5 In the Vasiljevic trial judgement, Trial Chamber II, in paragraph

6 267 of its judgement, found that the Prosecution must demand the proof of

7 a discriminatory act or intention and therefore are more specific than

8 murder or other inhumane acts which do not require any distinct element

9 with regard to persecution. Therefore, the Trial Chamber in the

10 Vasiljevic case found Vasiljevic guilty of persecution but not of murder

11 and other inhumane acts. The way the Judges reasoned was limited to the

12 statement that persecution demands the proof of a discriminatory act or

13 intention and that persecution is therefore more specific than other

14 crimes against humanity.

15 Once again, it failed to provide any explanation. It just took

16 as a premise that murder and other inhumane acts failed to present any

17 distinct element, with regard to persecution.

18 Lastly, in the Naletilic and Martinovic Trial Chamber, Trial

19 Chamber I, section 8, found in paragraph 724 of the judgement that - I

20 quote - "When an accused person is found guilty of persecution and of

21 another crime against humanity, the conviction to be held against him is

22 that for persecution." I set out that we appealed against this decision

23 by the Trial Chamber in the Naletilic and Martinovic case.

24 As you can see, the case law as established by Trial Chambers,

25 with relation to cumulative conviction, with a difference between

Page 230

1 persecution and other crimes against humanity, is, to say the least,

2 incoherent. We point out this error in law by the Trial Chamber in the

3 Krstic decision and in so doing we give the Appeals Chamber the

4 opportunity to shed light on case law established by Trial Chambers.

5 The Prosecution submits that the Trial Chambers which turned down

6 a cumulative conviction for persecution and other crimes against humanity

7 did so because they found that decision on the fact that the other crimes

8 against humanity would fail to find or to present a distinct element to

9 those determined in the Delalic decision. The Prosecution is bound to

10 conclude that the conclusion -- or the finding of the Trial Chamber is

11 erroneous.

12 Let us look at the way the test was applied to persecution and

13 murder. The Trial Chamber concluded in paragraph 675 of the judgement

14 that "Murder fails to present any specific or distinct element with

15 regard to persecution." The Prosecution submits that the finding of the

16 Trial Chamber is an error in law. Murder is distinguishable from

17 persecution in ways: You have to prove that the death of the victim is a

18 result of the act of the accused; and the second element is that the

19 intention to kill or to cause violations of -- to cause grievous bodily

20 harm, where it can be reasonably inferred that they will lead to death.

21 You have the constant case law of the Trial Chamber, and there's a

22 difference with regard to murder, because it demands that there is a

23 manifest or denial of a fundamental right consecrated by customary

24 international law which reaches the same degree of seriousness as other

25 crimes against humanity. And the second element which makes a

Page 231

1 distinction between murder and persecution, it is the state of mind, the

2 discriminatory intent of the author of this act.

3 In the Kupreskic judgement, the Trial Chamber rightly found that

4 you need to have an element of discrimination in persecution which is not

5 required for murder. This is paragraph 706 of the Kupreskic trial

6 judgement. In the said judgement, the Prosecution also submits that the

7 Trial Chamber was right in finding that a person can be accused both of

8 murder and of persecution.

9 Paragraph 708 of the Kupreskic judgement: The same acts causing

10 death can then be regarded as constituent of the two offences if it is

11 proved, first, that murder as an act of persecution meets the two

12 conditions of discriminatory intent and generalised or systematic

13 practice of persecution and, second condition, that murder as a crime

14 against humanity meets both conditions of the deliberate sacrifice of the

15 life of innocent civilians and of the generalised or systematic practice

16 of the killing of civilians.

17 In the Kupreskic trial judgement, the Trial Chamber therefore

18 found that an accused can be found guilty based on the same conduct both

19 of persecution and murder.

20 The Prosecution argues that the Trial Chamber in the Kupreskic

21 case rightfully found that persecution and murder are distinct offences

22 in international criminal law inasmuch as each offence is made up of a

23 distinctively different element. In the Krstic trial judgement, the

24 Trial Chamber therefore erred in law in finding differently and in

25 failing to find General Krstic guilty of murder. This is the reason why

Page 232

1 the Prosecution requires or asks of the Appeals Chamber that it annuls

2 the finding of the Trial Chamber, asked for paragraph 675 to be revised,

3 and for General Krstic to be found guilty of persecution and murder.

4 Let us now turn to the way the cumulative conviction test is

5 applied to persecution in other inhumane acts. In the Krstic case, the

6 Trial Chamber did not find General Krstic guilty of other inhumane acts

7 because it found that other inhumane acts do not present any distinctive

8 element that would be different with regard to persecution in the form of

9 forced transfer. The Prosecution knows the Krnojelac decision in which,

10 in paragraph 188, the Appeals Chamber found that the crime of persecution

11 for inhumane acts subsumes the crime against humanity of inhumane acts,

12 therefore making it possible to have multiple convictions on the basis of

13 the same facts.

14 The Prosecution, of course, also is aware of the Aleksovski

15 decision in which the Appeals Chamber in paragraph 107 found that the

16 adequate reading of the Statute in the light of its text as such and of

17 its objective leads to conclude that in the interest of security and

18 legal safety, the Appeals Chamber must follow its previous decision but

19 is free to take out the decisions if higher decisions make it necessary

20 in the interest of justice.

21 Other quote from the Aleksovski decision: "In situations where

22 in the higher interests of justice there are compelling reasons that make

23 it necessary to change a decision compared to before, we have the example

24 of a principle -- a legal principle of a decision that would have been

25 issued per incurium because the Judges would have erroneously found or

Page 233

1 were not aware of the applicable law.

2 In the Krnojelac decision, the Prosecution points out that the

3 Appeals Chamber has examined proprio motu the notion of multiple

4 convictions. In other words, the parties were not able to present their

5 own arguments in their briefs on the issue. And this issue was not

6 discussed either during the appeal hearing, so there was no pleading by

7 the parties in writing, in the briefs filed by the parties, or in the

8 discussions or pleadings during the hearings. This being so, the

9 Prosecution finds that the Appeals Chamber is not really aware of the

10 applicable law as defined in the Aleksovski decision because the parties

11 have not had an opportunity to present their arguments but that the

12 Appeals Chamber made a decision proprio motu. Therefore, the Prosecution

13 concludes or finds that the paragraph 108 of the -- 188 of the Krnojelac

14 decision was issued per incurium, as was the case, or as determined by

15 paragraph 108 of the Aleksovski decision.

16 In the Kunarac decision, the Chamber says that it has to set out

17 clearly enough the grounds of its decision. In the Krnojelac decision,

18 the Prosecution finds that the Appeals Chamber did not clearly set out

19 its reasoning and did not present the grounds at which it based its

20 decision, with relation to cumulative conviction, with a distinction

21 between persecution and other inhumane acts. Therefore, paragraph 188 of

22 the Krnojelac decision is not in keeping with the conditions set out in

23 paragraph 42 of the Kunarac decision. This being so, the Prosecution

24 does not see paragraph 188 of the Krnojelac decision as a final decision

25 that settles once and for all the issue of cumulative conviction for

Page 234

1 persecution and other inhumane acts. The Prosecution believes that the

2 Appeals Chamber is free, in the interest of justice, to make another

3 decision than that contained in paragraph 188 of the Krnojelac decision

4 and paragraph 108 of the Aleksovski decision. Therefore, the Prosecution

5 maintains its ground of appeal for these issues of persecution and

6 presents its own arguments.

7 The Prosecution, of course, argues that the other inhumane acts

8 and persecution meet the criterion for cumulative conviction. In the

9 Delalic Trial Chamber, the Trial Chamber found that the other inhumane

10 acts only include the acts - and here I quote paragraph 543 - "Acts that

11 cause great mental or physical suffering or are a violation of human

12 dignity." This conclusion, this finding in the Delalic judgement, is in

13 keeping with other judgements. Look at paragraph 818 of the Kupreskic

14 trial judgement and paragraph 728 to 764 of the Tadic judgement: Mental

15 or physical suffering or a violation of human dignity qualify the other

16 -- or characterise the other inhumane acts. This is not a legal

17 prerequisite for persecution. Therefore the Prosecution concludes that

18 persecution and other inhumane acts are distinct elements. The other

19 inhumane acts are different from persecution because you have to prove

20 that the victim has suffered grave mental or physical suffering or a

21 grave violation to human dignity. Once again, the crime -- or the

22 offence of persecution does not require this element. Therefore, the

23 Prosecution argues that the Trial Chamber in the Krstic case erred in law

24 by not finding General Krstic guilty of other inhumane acts. Therefore,

25 the Prosecution urges the Appeals Chamber to annul the finding of the

Page 235

1 Appeals Chamber, to revise paragraph 675 of the judgement, and to find

2 General Krstic cumulatively guilty of persecution and other inhumane

3 acts.

4 The Prosecution also argues that the legal distinction between

5 persecution and other crimes against humanity is not a merely technical

6 issue; it is also the reflection of fundamentally different legal values

7 which are protected by every provision. In the Kunarac decision, the

8 Appeals Chamber in paragraph 174 stressed that we should not mechanically

9 or blindly apply principles. In the Kupreskic trial judgement, the Trial

10 Chamber found in paragraphs 695 and 710 of the judgement that the

11 criterion of various or different protected values confirms and

12 corroborates the results obtained through the test of clearly distinct

13 elements. The Prosecution also argues that the protection of various

14 public interests is something that was recognised by Judge Shahabuddeen

15 in his partially divergent opinion next to the Jelisic decision,

16 paragraph 42. Judge Shahabuddeen stated that "The full protection of

17 various public interests, as reflected in the specific elements of a

18 crime, demands cumulative conviction." The criterion of various or

19 different public interests is therefore an additional criterion, but it

20 is no way a substitution to the criterion as set out by the Appeals

21 Chamber in the Delalic case.

22 In the first instance, with regard to public interest protected

23 by turning persecution and murder into an offence, the Trial Chamber

24 rightfully said in the Kupreskic case that "The prohibition of

25 persecution protects interests, public interests, that are different from

Page 236

1 those protected by the prohibition of murder." I quote paragraph 709 of

2 the Kupreskic trial judgement. It is clear that the fact that murder and

3 persecution are turned into offences serves different values; the

4 prohibition of murder aims at preventing a large-scale murder of

5 innocent civilians. More generally, it aims at saving human life in

6 times of armed conflict. The prohibition of persecution aims at

7 protecting civilians from various serious forms of discrimination.

8 Therefore, it is there to reaffirm the principle of equality between

9 groups and human beings and to maintain its compliance. Therefore, the

10 Prosecution agrees to analysis made by the Trial Chamber and thinks that

11 persecution and murder, and the prohibition thereof, protects distinct

12 public interests. The prohibition of murder protects against more direct

13 violations of human existence; therefore, protect the lives of victims

14 whilst -- and therefore it protects the values of human life and the

15 respect to life.

16 Now, let us look at the way persecution and other inhumane acts

17 protect -- by being turned into offences, protects public interest.

18 Blaskic, paragraph 235, finds that the authors of persecution target a

19 human being as part of a community or a group. Persecution also concerns

20 generally and principally the protection of the identity, of political,

21 racial and religious groups against serious violations, and it also

22 protects the liberty, the freedom of human beings to identify to such

23 groups. Therefore, the group is the object of the attack and the group

24 is also the subject of legal protection.

25 The prohibition of persecution also protects from the

Page 237

1 discriminatory deprivation of the fundamental rights, as internationally

2 recognised. It is a vast category comprising social, economic, and

3 political rights; therefore, going way beyond mere attacks against a

4 single individual. The prohibition of other inhumane acts precisely

5 protect the physical and mental integrity and the human dignity of a

6 person as such and not as a part or a member of a community, not as a

7 member of a group. Other inhumane acts also protect the -- any violation

8 of the human dignity of the victim. Therefore, the Prosecution believes

9 that the distinct elements constituent of each offence are based on

10 public interest that are also different for each provision.

11 The cumulative conviction test contributes, to a large measure,

12 to have the various public interests recognised as such, as protected by

13 the various provisions. We have paragraph 169 of the Kunarac decision

14 and the Appeals Chamber found that convictions make it possible to show

15 in its entirety the criminal conduct of an accused. But does that have

16 to be shown at the appeals level? In other words, do we need a heavier

17 penalty when you have a same conduct violating various public interests

18 and therefore various provisions of the Statute? Based on the constant

19 case law of this Tribunal, this is not the case. Cumulative conviction

20 does not automatically systematically carry with it a heavier penalty.

21 In this instant case, the error in law by the Trial Chamber in

22 this question of the cumulative conviction does have consequences for the

23 penalty imposed because the Prosecution is asking for General Krstic to

24 be found guilty of four additional counts; that is, extermination,

25 persecution, murder, and other inhumane acts. As you said and reminded

Page 238

1 yourself, Mr. President, in the beginning of the hearing, given the fact

2 that this same -- of General Krstic is at the basis of cumulative

3 conviction, the Prosecution does not require an increased penalty against

4 General Krstic on the basis of the cumulative conviction in case the

5 Appeals Chamber would grant the Prosecution its first ground of appeal.

6 However, the Prosecution is asking the Appeals Chamber to reverse the

7 findings of the Trial Chamber with the -- with not finding General Krstic

8 guilty and is asking the Appeals Chamber to find General Krstic guilty of

9 extermination, persecution, murder, and other inhumane acts. Of course,

10 I'm available to you for any further question.

11 JUDGE MERON: Would my colleagues, the Judges, wish to ask

12 questions now or the Prosecution would move on to argue its appeal first

13 on the remaining questions. You have not yet touched on other grounds of

14 appeal. Sentencing; would you like to discuss sentencing now or not?

15 MR. TRACOL: [Interpretation] The Prosecution is quite willing to

16 move to the second ground of appeal, if you so wish, Mr. President. If

17 you have questions, of course, with regard to the first ground of appeal,

18 I could answer them afterwards, after the ground of appeal with relation

19 to the sentence has been presented.

20 [Appeals Chamber confers]

21 JUDGE MERON: I myself will have some questions to ask you about

22 cumulative sentencing, but I think we would proceed by asking you first

23 to address your other ground, namely, the question of sentencing, and

24 then the Judges will be invited by me to address whatever questions they

25 have about your entire argument this morning. So may I invite you to

Page 239

1 proceed to the remaining ground. Thank you.

2 MR. TRACOL: [Interpretation] Very well, Mr. President. I now

3 give the floor to my colleague, Mathias Marcussen, who's now going to

4 present the Prosecution's seconds ground of appeal with relation to

5 sentencing.

6 MR. MARCUSSEN: Thank you, Your Honours. I am going, as my

7 colleague said, to present the Prosecution's argument on the second

8 ground of appeal of the Prosecution.

9 In the second ground of the appeal by the Prosecution, the

10 Prosecution requests the Appeals Chamber to revise the sentence of 46

11 years' imprisonment imposed on the respondent and impose a sentence of

12 life imprisonment in the place.

13 At the heart of the Prosecution's second ground of appeal lies a

14 simple proposition, which is that when an accused is convicted and found

15 guilty as a perpetrator of 8.000 murders, the forcible transfer of 20 to

16 25 thousand people in circumstances where it was a reasonable,

17 foreseeable consequence to the accused that at least dozens of people

18 would be killed, raped, and beaten, and on top of that the accused was

19 found to play an essential role in the commission of these crimes, then

20 there is only one sentence available, and that is, in the words of Rule

21 101, "Imprisonment for a term of up to and including the remainder of the

22 convicted person's life."

23 The Prosecution is not just disagreeing with the sentence imposed

24 by the Trial Chamber; the Prosecution submits that the Trial Chamber

25 erred in four different ways that we have set out in the Prosecution

Page 240

1 appeal brief. The first sub-ground of appeal, if you like, is that the

2 Trial Chamber abused its discretion and imposed a manifestly inadequate

3 sentence in light of the crimes committed by the respondent. The second

4 sub-ground is that the Trial Chamber erred by not taking into

5 consideration the sentences imposed by the Rwanda Tribunal in comparable

6 cases. The third sub-ground is that basing the respondent's sentence on

7 his palpably less guilt than other named and unnamed perpetrators was an

8 error. And finally, the fourth sub-ground is that the Trial Chamber

9 erred by considering that premeditation did not apply in the respondent's

10 case.

11 I'm going to address all four of these sub-grounds, but I will

12 not go through our entire appeal brief. There's no need for that; Your

13 Honours are familiar with it already. In particular, when I come to the

14 sub-ground about the ICTR jurisprudence, half of our second ground of

15 appeal in our brief is taken up with a detailed analysis of that

16 jurisprudence, and I will not repeat all those submissions, but of course

17 I remain available for -- for questions on these things. What I will do

18 is simply to update that part of our arguments with the most recent

19 jurisprudence or the jurisprudence that have come out from the Rwanda

20 Tribunal since we filed our appeal brief.

21 I would also note that I will reverse the order of the two last

22 sub-grounds of appeal, so that I will address first the issue of

23 premeditation and then the comparison between the respondent and other

24 persons involved in the crimes after the fall of Srebrenica.

25 So I will now turn to the first sub-ground of appeal. The

Page 241

1 Prosecution, of course, recognises that Trial Chambers have considerable

2 discretion in sentencing matters. The Prosecution also recognised --

3 recognises that it has the burden to show that the Trial Chamber abused

4 its discretion. But the Prosecution also submits that this is indeed a

5 case where an abuse or error in the discretion has occurred in a

6 sentencing matter. And as I stated in the beginning, the problem, in the

7 Prosecution's submission, is fundamentally that the sentence, although a

8 heavy sentence, is manifestly inadequate in light of the very extreme

9 gravity of the crimes committed by the respondent and by his involvement

10 in this -- in these crimes.

11 As I mentioned, the victims of these crimes are numerous. The

12 legal qualification of the conduct of the accused, in terms of the

13 crimes, led the Trial Chamber to impose convictions for the most serious

14 international crimes. The respondent was found guilty for genocide, to

15 the killings -- through killings and serious bodily and mental harm; he

16 was found guilty for crimes against humanity in the form of persecution

17 committed through murders, cruel treatment, terrorisation of the civilian

18 population, forcible transfer, destruction of personal property; and was

19 found guilty of murder as a violation of the laws and customs of war.

20 And I apologise to the translators that I'm going too fast. I

21 will try to slow down.

22 All these crimes are, of course, very serious, but they stand out

23 among other -- two of them stand out among other international crimes as

24 particularly serious. The crime of persecution has been recognised as

25 particularly grave because of the requirement that the accused has

Page 242

1 discriminatory intent; the crime of genocide has been recognised as the

2 international crime of crimes. Most recently the Appeals Chamber in the

3 Rutaganda case has underlined the extreme seriousness of this crime and

4 noted its intrinsic gravity. It is not the Prosecution's case that when

5 an accused is found guilty of either genocide or persecution the Tribunal

6 has to impose its highest sentence, but in the Prosecution's submission,

7 there must be a point where these grave crimes are committed at a scale

8 that the only -- the only sentence that can be imposed is the Tribunal's

9 highest sentence.

10 As I mentioned at the outset, the victims in this case were 20 to

11 25 thousand civilian Muslims that were transferred from Potocari. Dozens

12 of men were killed; women were raped; and scores of civilians were beaten

13 at Potocari. Seven to eight thousand Bosnian men were executed in

14 massacres subsequent to these events, and the respondent played a pivotal

15 role in these crimes.

16 These crimes, based on the -- the Trial Chamber found that these

17 crimes not only were of big scale but they were also particularly wicked.

18 The Trial Chamber itself described the crimes that followed the fall of

19 Srebrenica as one of the most heinous wartime acts committed in Europe

20 since the Second World War. The Trial Chamber described the appalling

21 conditions in Potocari, where there had been made no provisions for food

22 nor water, and on top of that the Trial Chamber noted at paragraph 115

23 that the civilian refugees were subject to a terror campaign comprising

24 threats, insults, lootings, burning of house, beatings, rapes, and

25 murder, at paragraph 150.

Page 243

1 The Trial Chamber also noted the appalling conditions in which

2 the men -- the Bosnian men that were separated out from the civilian

3 group at Potocari was kept in at the "White House." The Trial Chamber

4 noted -- described as an ordeal and a manhunt the shelling of the Bosnian

5 Muslim column that tried to cross the road when they were trying to flee

6 from Srebrenica. They described the manner in which the crimes -- the

7 executions were carried out as "slaughter in carefully orchestrated mass

8 executions." The executions were carried out in a manner which the Trial

9 Chamber described as an "unspeakable evil," and it did so in reference to

10 Erdemovic's testimony about how he pleaded with some of the executioners

11 not to use machine-guns that would not immediately kill the victims and

12 how other victims at other massacre sites were lying on the ground, not

13 dead, and being left there to die slowly.

14 So the Trial Chamber found not only massive crimes but also that

15 there were -- many of them were executed in a particularly cruel manner.

16 In its final findings, the Trial Chamber used words as "heinous,"

17 "indiscriminate", "disproportionate", "terrifying" to describe the

18 crimes. It is submitted that for this reason alone the most severe

19 punishment should be imposed on a person who has been found to have

20 committed the crimes.

21 The respondent, of course, did not commit the crimes himself, but

22 he was found to have been a participant in two joint criminal

23 enterprises, and it follows, as is well known, from the jurisprudence of

24 the Tribunal that that means that he must be equalled to a person who has

25 committed the crimes. Your Honours have expanded on this in the Appeals

Page 244

1 Chamber judgement in Tadic in paragraphs 191 and 192. I'm not going to

2 repeat what Your Honours have said there.

3 I find it worth noting, though, that in -- in the trial judgement

4 in Stakic, Vasiljevic, and Krnojelac the Trial Chambers have stressed

5 that "Provided the agreed crime is committed by one of the participants

6 in a joint criminal enterprise, all the participants are equally guilty

7 of the crime, regardless of the role they played in its commission." The

8 most recent reference would be to paragraph 435 of Stakic, with further

9 references there.

10 Again, it is submitted that when an accused is found guilty to

11 have committed crimes on this scale, the accused must be given the

12 highest sentence.

13 The Prosecution recognised also that when it comes to sentencing,

14 the acts -- or the actual participation of the accused must be taken into

15 consideration. The Prosecution submits, though, that when that is done

16 in this case, based on the Trial Chamber's findings, it only compounds

17 the fact that the most serious sentence must be imposed in this case.

18 The Trial Chamber found that the respondent played a crucial role in the

19 joint criminal enterprise that involved the forcible transfer and the

20 genocide.

21 With respect to the forcible transfer, the Trial Chamber found

22 that he played a principal organising role by -- sorry, that's wrong.

23 I'll rephrase -- I'll repeat that quote -- that he was -- that "He played

24 a principal role in organising the buses for the evacuation throughout

25 the day of the 12th of July." That is, that he organised the means by

Page 245

1 which the crime could be executed, the transfer.

2 In the early morning, at 7.35, he ordered his transport officer

3 to procure 50 buses. During the day, he checked on the progress of

4 getting the buses to Potocari and he was -- the and Trial Chamber found

5 that he was present in Potocari to oversee the transfer together with

6 Mladic. The Trial Chamber concluded from the evidence that the

7 respondent generally supervised the transportation operation. So the

8 respondent's involvement in the transfer of the 20 to 25 [sic] civilians

9 from Potocari was primarily a principal role.

10 According to the Trial Chamber's findings, his involvement in the

11 genocidal murder operation was equally important, if not even more

12 important, because the Main Staff had no -- no real assets itself to

13 commit the crimes with but was only an organisational shell, the

14 respondent was -- the respondent's participation was described as

15 indispensable - that is, Your Honours, without the respondent the crimes

16 could not have been committed.

17 The Prosecution has in paragraphs 410 to 417 set out in more

18 details reference to -- references to the relevant parts of the

19 judgements where the respondent's involvement in the executions is

20 described by the Trial Chamber. I'll just summarise the findings. When

21 the respondent became the commander of the Drina Corps, he knew that

22 thousands of Muslims had been captured in his zone of responsibility.

23 From then on, he knew that his personnel, equipment, and facilities were

24 being used in the killing operations. The Trial Chamber specifically

25 finds that he was aware that his assets were being used for the killing

Page 246

1 of at least 4.700 Muslim men. Those are the massacre sites at Orahovac

2 on the 14th of July, where 1.000 people were killed; at Petkovic Dam on

3 the 15th of July, where 1.500 to 2.000 people were killed; at Branjevo

4 Farm, where 1.000 to 1.200 killings were taking place; at Pilica Dom, 500

5 people killed on the 16th; and two smaller massacre sites, at Kozluk and

6 Nezuk. The respondent knew about these events. He was a commander of

7 the Drina Corps and he did nothing to stop these crimes being committed

8 within his zone of responsibility. On the 15th of July, he was directly

9 informed by Beara that there was still 3.500 prisoners that had not been

10 executed, and Beara asked him to assist. The respondent did not refuse.

11 As a matter of fact, he proposed different of his units that could assist

12 in this operation. When none of them were available, he said he would

13 see what he could do.

14 The Trial Chamber found that he did see what he could do and he

15 did provide men to participate in the operation. Now, this is going to

16 be the subject of more debate tomorrow, but the Prosecution's submission

17 is that his involvement in all these crimes were very significant.

18 Indeed, on the 16th of July he also provided -- ensured that

19 there would be diesel for transportation, that there was military -- his

20 military police was involved in escorting prisoners, and the killing at

21 Branjevo Farm that occurred on the 16th took place at a military

22 installation. He was apprised of these events by one of his direct

23 subordinates, Popovic, on the 16th, and Popovic responded back to the

24 respondent again on the 17th. So clearly he was aware of these crimes

25 and he continued to allow his -- his troops and his equipment to be used

Page 247

1 for these operations.

2 The Trial Chamber found in its conclusions -- in its concluding

3 paragraphs that he participated in the full scope of the criminal plan to

4 kill the Bosnian Muslim men, and it described his -- as I said, his

5 involvement in these crimes as clearly indispensable. The Prosecution

6 submits that in a case like this, where we have such big crimes, where we

7 have an accused who's so heavily involved in the crimes, when the crimes

8 are particularly heinous, there is only one sentence available and that

9 is life imprisonment and that the Trial Chamber, by not imposing that

10 sentence, abused its discretion in this case.

11 I'll briefly address the Prosecution's second sub-ground of

12 appeal. As I mentioned, I'm not going to go through all our submissions

13 on the Rwanda jurisprudence, but if you have any questions, I'm of course

14 available.

15 What I'd like to note is that since our appeal brief was written,

16 the ICTR have issued five judgements. There are two appeal judgements in

17 Musema and Rutaganda. Essentially -- well, not essentially. These

18 judgements confirm the sentences imposed on Musema and Rutaganda, so

19 therefore they do not change anything for our argument. And I think

20 that's just an important point to note.

21 There are three Trial Chamber judgements that have come out this

22 year in the spring, in the case of Elizaphan and Gerard Ntakirutimana in

23 the Semanza case and in the Niyitegeka case. Elizaphan Ntakirutimana was

24 imposed a prison sentence of ten years. His case is distinguished --

25 excuse me, is distinguishable from the case at hand and from the other

Page 248

1 cases that we have referred to in our appeal brief in that Elizaphan

2 Ntakirutimana was found to be an aider and abettor, and it was found that

3 there were mitigating circumstances in his case that outweighed the

4 aggravating circumstances. His case is therefore not comparable to the

5 -- to that of the respondent's.

6 Gerard Ntakirutimana was convicted for genocide and given a

7 sentence of 25 years' imprisonment. In his case, the aggravating factors

8 were found to outweigh the mitigating factors. In that sense, this

9 judgement could be said to have an impact on the Prosecution's argument

10 in the appeal brief. However, the Prosecution notes that Gerard

11 Ntakirutimana was found guilty of only two murders as the act of

12 genocide, and therefore, again, this case cannot be compared with that of

13 the respondent's. Semanza was sentenced for a number of crimes, among

14 them genocide, for which he was sentenced to a term of five years of

15 imprisonment -- excuse me, he was -- five years of imprisonment for

16 complicity in genocide. And because he was found guilty for complicity

17 in genocide and the Trial Chamber in that case considered that that would

18 lead to a lower sentence, again, this case does not do much in terms of

19 having impact on the Prosecution's submission and the appeal brief.

20 Finally, in the Niyitegeka case, I would submit that that case

21 also does little to our appeal brief. Niyitegeka was found guilty of

22 genocide. He was given a term of life imprisonment. And that whole

23 judgement is in line with the other judgements where -- where senior

24 officials have been involved in crimes in Rwanda. We're not relying on

25 this case as further support for the argument we have made, but I thought

Page 249

1 I should bring these -- this case to your attention as well. I should

2 also mention that all these cases are subject to appeal.

3 So for the reasons that we have set out in our appeal brief, we

4 submit that the Trial Chamber erred when it did not take into account the

5 sentencing practice of the Rwanda Tribunal. It's our submission that the

6 sentencing practice is relevant also to this Tribunal because although

7 the crimes in Rwanda happened in very different circumstances, we're

8 still talking about international -- the international crimes of genocide

9 and crimes against humanity, and in the clear sentencing practice of

10 Rwanda those who are responsible for these crimes at -- at least when

11 they took place, at a -- at a big level, on a big scale and where the

12 accused holds a position of authority, then the sentences being imposed

13 are the Tribunal's most severe sentence, life imprisonment.

14 So we submit that had the Trial Chamber had due regard to this

15 sentencing practice, it would have imposed a life sentence.

16 I now turn to our fourth sub-ground in the brief and, of course,

17 my third point. It concerns the finding in paragraph 712 of the

18 judgement. There the Trial Chamber agrees with the Prosecution that

19 premeditation is relevant as an aggravating factor in the abstract, but

20 then it says, "based on the sequence of General Krstic's delayed

21 participation in the genocidal scheme initiated by General Mladic and

22 others," it finds that it is not applicable to this situation. The

23 Prosecution submit that is the Trial Chamber thereby erred in law.

24 The jurisprudence of the Trial shows that planned and calculated

25 submissions of crimes warrant the application of premeditation as an

Page 250

1 aggravating circumstance. In Celebici, the Trial Chamber held that

2 "where an accused is found to have committed offences charged with cold,

3 calculated premeditation suggestive of revenge against the individual

4 victim or the group to which the victim belongs, such circumstances

5 necessitates the imposition of aggravating punishment."

6 The ICTR have defined premeditation in relation to murder as the

7 acts as formulated -- that the acts are formulated the intent to kill

8 after a cool moment of reflection." Black's Law Dictionary states that

9 "Premeditation involves a design or a plan to commit a crime before it's

10 committed." In our appeal brief paragraphs 4117 and 4118, we refer to

11 more domestic legislation and jurisprudence on premeditation, but I'm not

12 going to go through that here.

13 What I'd like to stress, with respect to the aspect of

14 premeditation which concern a plan to commit a crime is that it is

15 sufficient that the accused know about the plan, he adopts it and

16 executes it. It's not a requirement that the accused, him or herself,

17 makes the plan. We've cited in our appeal brief as an example R. versus

18 Brown from Canada. There's more on that in paragraph 4122 of our appeal

19 brief.

20 As examples of premeditation in the jurisprudence of this

21 Tribunal could be mentioned the destruction of a mosque that could only

22 have taken -- that only could have been carried out by an expert who knew

23 exactly where to have placed explosives, in Blaskic, paragraph 421; or a

24 terrorist attack on a lorry that was found to be premeditated because it

25 was necessary to arrange considerable -- considerable quantities of

Page 251

1 explosives, organise the transport of the booby-trapped vehicle, and plan

2 where to place it; again, Blaskic paragraph 505. In Celebici, it was

3 found that when the accused inflicted burns on a detainee, it would have

4 been premeditated. And also in Celebici, warning a victim before beating

5 him that he should not hope to be alive was considered evidence of

6 premeditation.

7 In his response brief, the respondent has suggested that

8 premeditation would necessarily encapsulate the elements of genocide and

9 crimes against humanity and therefore cannot be an aggravating factor

10 when such crimes are committed. The Prosecution submits that that

11 argument should be rejected and refer to the case of Serushago from the

12 Rwanda Tribunal, which did consider premeditation an aggravating

13 circumstance in sentencing Serushago for both crimes against humanity and

14 genocide. And that sentence was upheld by the Appeals Chamber.

15 The Prosecution submits that in light of the legal principles

16 that I've just outlined, the Trial Chamber erred in two ways: First, it

17 only considered premeditation in relation to the joint criminal

18 enterprise to commit genocide but did not consider whether there was

19 premeditation in relation to Potocari; and second, it -- it ignored its

20 previous findings with respect to how the genocidal events occurred and

21 failed to draw the correct legal inferences from that, namely, that the

22 respondent's participation in the crimes were premeditated.

23 The Prosecution would submit, with respect to Potocari, that the

24 events that I've already described, of organising buses throughout the

25 whole day constitute premeditation. Clearly the respondent would have

Page 252

1 had time to reflect upon what he was doing. He, as a matter of fact,

2 thought about how this crime should be carried out and ordered one of his

3 subordinates to take steps. He then followed up and supervised. In the

4 Prosecution's respectful submission, that is -- those acts are -- can

5 only be described as premeditated.

6 With respect to the events that involve the execution of the

7 Bosnian Muslim men, I've also described how the respondent was heavily

8 involved all through the execution of these crimes. As a commander of

9 the Drina Corps, from the evening of the -- or the late afternoon of the

10 13th of July, he was informed about what was happening; he allowed his

11 assets to be used; he was asked for assistance; he provided assistance.

12 There can be only one inference from these fact, according to the

13 Prosecution, and that is that he participated in the plan to execute the

14 men. He knew of the plan; he participated in it. As I mentioned in the

15 beginning, that would constitute, on its own, premeditation. But

16 secondly, each of these acts before each contribution by the respondent,

17 he would have ample time to consider what he was doing. He chose to go

18 along with the plan. He chose to lend his assistance. That, in the

19 Prosecution's submission, constitutes premeditation.

20 For those reasons, Your Honours, we submit that the Trial Chamber

21 was in error when it did not apply as an aggravating circumstance in this

22 case premeditation. The Prosecution also respectfully submits that had

23 the Trial Chamber applied this aggravating circumstance, it could only

24 have come to one conclusion. When this aggravating circumstance was add

25 to the other aggravating circumstances found by the Trial Chamber, and

Page 253

1 taking into consideration the scale of the crime, the heinous nature of

2 the crimes, the degree of the respondent's participation, the Trial

3 Chamber would have had to come to the conclusion that the respondent

4 should be given a life sentence.

5 So again, for this reason alone, the Appeals Chamber is

6 respectfully requested to revise the sentence of the respondent.

7 And finally, I'll turn to our third sub-ground of appeal in our

8 brief.

9 JUDGE MERON: Mr. Marcussen, I think that we are to respect the

10 break for the interpreters. How long do you have to -- would you like to

11 continue?

12 MR. MARCUSSEN: I can finish this in five minutes.

13 JUDGE MERON: Let me ask the interpreters, they could continue

14 for five more minutes, the interpreters.

15 THE INTERPRETER: Yes, Mr. President. Yes, Your Honour.

16 JUDGE MERON: Thank you for your cooperation.

17 So five more minutes.

18 MR. MARCUSSEN: Thank you. And I apologise to the interpreters.

19 Your Honours, to make it short, the Prosecution submits that in

20 paragraph 724 the Trial Chamber erred by comparing the -- the involvement

21 of the respondent to Mladic and other -- the involvement of Mladic and

22 other unnamed persons that were also involved in these crimes. The

23 Prosecution submits that although the trial -- the Appeals Chamber has

24 held that it's important that there is a principle of gradation of

25 sentencing, there comes a point where the crimes are so grave that this

Page 254

1 gradation has to be set aside. One has to look at the conduct of the

2 accused and if his conduct is sufficiently important and his crimes

3 sufficiently grave, the right sentence is the life sentence. It's the

4 only sentence. And it does not matter whether there are others who were

5 also involved in those crimes or in other crimes in the same conflict

6 that could be said to be morally or legally more responsible.

7 I've repeatedly stated how important we think it is that one

8 considers the large scale of the crime, the heinous nature of the crime,

9 and the respondent's very, very important involvement in the crime,

10 according to the Trial Chamber's own finding. I'm tempted to repeat -

11 and I will give in to my temptation - the respondent was found to be

12 indispensable in the commission of the genocide. Again, without him -

13 that would be the conclusion - without him, these crimes could not have

14 been committed. He was clearly also extremely important in the events at

15 Potocari, because he organised the buses. He was the person who could

16 organise the buses, organise the means by which the crime could be

17 committed, the forcible transfer.

18 The Prosecution recognises, as I said, that this means that

19 people who were even more involved would be given the same -- the same

20 sentence as the respondent. But this, Your Honours, is not unknown in

21 criminal law. As a matter of fact, in most, if not all, domestic

22 jurisdictions, if an accused is found guilty of five murders, he will be

23 given the highest sentence, and so will the accused who's found guilty of

24 15, 10, or 100. There comes a point where the highest sentence is the

25 only appropriate one. In this case, we have 7.000 people killed, 25.000

Page 255

1 people forcibly transferred, and dozens killed, raped, and brutalised as

2 a reasonable, foreseeable consequence of the scheme that was put in place

3 to carry out the forcible transfer. The respondent was an important part

4 of these crimes, and he must be given the highest sentence.

5 I think, Your Honours, that the rest is in our brief. And in

6 light of the need for the interpreters to have a well-deserved break, I

7 will conclude my submissions by simply repeating that the Prosecution

8 requests respectfully the Appeals Chamber to impose a sentence on the

9 respondent of life imprisonment, and I'd also like to note - I would have

10 made submissions of this at the end - that we request a minimum sentence

11 of 30 years. Your Honours, I think I will conclude with this. We will

12 conclude the Prosecution's appeal, unless Your Honours have questions

13 now. But I guess we might take them after the interpreters have had a

14 chance to rest a bit. Thank you, Your Honours.

15 JUDGE MERON: Thank you, Mr. Marcussen, for concluding your

16 argument.

17 Let me just explain to the counsel how we are going to proceed.

18 We will have a 30-minute break, which means that we will resume at 11.50,

19 at which time we will first have questions from the Bench and then turn

20 to the distinguished counsel for the Defence to start with his response.

21 So the Court will now rise.

22 --- Recess taken at 11.20 a.m.

23 --- On resuming at 11.51 a.m.

24 JUDGE MERON: Please be seated.

25 Do I understand that the Prosecution is asking to speak?

Page 256

1 MR. MARCUSSEN: Yes, Your Honour. Thank you very much.

2 I just, with your Court's indulgence, would like to add one small

3 thing to our submissions. I might have wrapped up leaving one point out

4 that I should have made.

5 I simply wanted to put on record that if the Appeals -- if the

6 Appeals Chamber accepts the -- as reliable evidence some or all of the

7 evidence that has been added to the appeals record and if the Appeals

8 Chamber would come to the conclusion that this evidence changes the

9 nature or the degree of the respondent's participation in the crimes, it

10 would be our submission that that evidence could also affect the

11 sentence. So I simply wanted to make that point clear. And I'm not

12 going to make submissions on how this could affect the sentence, but of

13 course this evidence would be subject to debate tomorrow and depending on

14 what your ultimate decision on this would be, it's our position that it

15 might be taken into consideration also when it comes to the sentence.

16 Thank you, Your Honours.

17 JUDGE MERON: Thank you, Mr. Marcussen. I think that we would be

18 ready now to -- to turn to the Judges and allow them to ask questions.

19 If my colleagues are agreeable, I would lead off.

20 Questioned by the Court:

21 JUDGE MERON: My first question would be to -- I have a question

22 about sentencing, so I will turn to Mr. Marcussen on that. And then I

23 will have, after your response -- we will see whether the Judges would

24 like to ask you on sentencing, and then we will return to the question of

25 cumulative convictions to Ground 1.

Page 257

1 Okay. On the sentencing. In your appeal, you have asked the

2 Appeals Chamber to impose a life sentence with a minimum term of 30 years

3 to take into account the possibility that Mr. Krstic might be granted an

4 early release. You will recall that the Trial Chamber sentenced Mr.

5 Krstic to 46 years. Assuming that he may be eligible for an early

6 release, after serving, as it is customary, two-thirds of his sentence,

7 this would mean that under the sentence pronounced by the Trial Chamber

8 he would be required to serve a minimum term of just over 30 years. Can

9 you tell me, Mr. Farrell -- Mr. Marcussen, therefore, what is the

10 practical difference between what the Prosecution is asking in its appeal

11 and the sentence that was actually imposed on Mr. Krstic by the Trial

12 Chamber, because the terms of effective imprisonment would be more or

13 less the same.

14 MR. MARCUSSEN: Thank you, Your Honours -- Your Honour. The

15 Prosecution has appealed against the sentence and requested a sentence of

16 life imprisonment, because we submit that that is the only appropriate

17 sentence. And depending on how the respondent is going to serve his

18 sentence, he might end up actually serving his full life sentence. So we

19 are -- but that will depend on the country in which the respondent will

20 serve his sentence; it will depend on whether a recommendation made by

21 that country, that he might be released earlier. So that -- the regime

22 of the country where he go, we don't know about at this stage. But by

23 asking for a life sentence, the Prosecution is asking primarily that the

24 respondent is sentenced to be serving the rest of his life in prison.

25 But to ensure that he at least serve what we consider a minimum

Page 258

1 acceptable sentence, he should serve 30 years. But we are seeking an

2 increase of the sentence, if that answers your question, Your Honour.

3 JUDGE MERON: Thank you, Mr. Marcussen.

4 Would my colleagues wish to ask questions on sentencing?

5 Judge Shahabuddeen.

6 JUDGE SHAHABUDDEEN: Mr. Marcussen, I gather that your position

7 is that, in principle, it is difficult to conceive of any case in which a

8 life sentence would be appropriate if it's not this case, that is,

9 assuming that the convictions are maintained. Is that your position?

10 MR. MARCUSSEN: Yes, Your Honour.

11 JUDGE SHAHABUDDEEN: Yes. Well, could you tell me -- maybe I

12 should have read it somewhere - and I apologise for not having done my

13 homework, if it does exist somewhere - but has there been any discussion

14 within the Tribunal of the legality of a Chamber recommending a minimum

15 period of imprisonment?

16 Under the Statute, Article 27 of the Statute says this: "Such

17 imprisonment shall be in accordance with the applicable law of the state

18 concerned subject to the supervision of the International Tribunal."

19 Now, would that mean that if a man is sent to a given state and he's

20 ordered to be imprisoned for life, that the state has the competence to

21 say what is the minimum period after which he is eligible for release,

22 subject, of course, to the supervision of the Tribunal? Could there be a

23 conflict there? My mind is completely open on the question.

24 MR. MARCUSSEN: Your Honour, the -- there have been two instances

25 where minimum sentences have, as a matter of fact, been imposed by the

Page 259

1 Tribunal; one is in Tadic, and that was upheld by the Appeals Chamber,

2 and recently in Stakic. But I understand that your question is a

3 practical one: How does this actually work out when the convicted person

4 is sent to serve a sentence in a country?

5 My answer would be that the minimum sentence would be binding on

6 the state where the person is going to serve his sentence. If it is not

7 possible for the receiving states to have a person serve the minimum

8 sentence of 30 years for some legal reasons in that jurisdiction, that

9 state must decline to take the respondent to serve his sentence. I think

10 that must be the only solution available.


12 JUDGE MERON: I thank Judge Shahabuddeen.

13 On sentencing and other questions, no.

14 So we turn to cumulative convictions. I believe that you, Judge

15 Shahabuddeen, had something that you wanted to raise about cumulative

16 convictions. Why don't we start from your end and we will follow.

17 JUDGE SHAHABUDDEEN: Well, Mr. Tracol - I beg your pardon - I am

18 focussing on that part of your submissions which was directed to the

19 permissibility of having cumulative convictions in respect of murder and

20 persecution. I know you spoke of other things as well. The criteria

21 have been set in previous cases. As I understand the criteria, it is

22 this, that the test is whether one crime is subsumed in the other crime,

23 and that depends on whether Crime A has an element not possessed by Crime

24 B and whether Crime B has an element not possessed by Crime A.

25 Now, looking at Article 5(h) of the Statute relating to

Page 260

1 persecutions, I wonder if it could be said that that Article -- that

2 provision is in a sense referential. It refers the reader to certain

3 other acts, certain crimes or certain acts which amount to persecution.

4 Now, if that is so, then we have this: The Prosecutor has an option to

5 refer to the conduct involved either by reference to the facts involved

6 or be reference to legal characterisation of those facts. In this case,

7 I see that a man is charged -- Count 6, paragraph 31 of the indictment

8 says he's charged with the crime of persecutions, relating to, A, the

9 murder of thousands of Bosnians, and so on. So it looks to me that a

10 question could be asked this way: On the indictment thus framed, to

11 establish the asserted charge of persecutions, do you have to prove each

12 and every element of the crime of murder to which the persecution alleged

13 in the indictment relates so that you come to this conclusion: If the

14 man is found guilty of persecution, you would also have proven every

15 element of the crime of murder, with reference to which the persecution

16 is asserted? Now, if that is correct - if that is correct - does there

17 remain any element of the crime of murder which has not been subsumed in

18 the charge of persecution?

19 MR. TRACOL: [Interpretation] Mr. Judge, Mr. President, Your

20 Honours, as was stated by Judge Shahabuddeen, the criterion is indeed

21 that of the distinctly -- distinct elements for each crime in the

22 Statute. The case law of this Tribunal - and in this respect the

23 Prosecution follows the case law of the Tribunal - and this case law has

24 always been to take into account the crimes as such and not the specific

25 forms in which the crimes are presented, in order to apply the

Page 261

1 cumulative-conviction test.

2 With regard to the crimes in question -- persecution and

3 murder -- the Appeals Chamber must therefore apply the test, the

4 cumulative-conviction test, to persecution and murder but not take into

5 account the forms in which the crime of persecution was set out in the

6 indictment. As you stressed yourself, Judge Shahabuddeen, Count 6 of the

7 indictment takes indeed various forms; murder is one of them, but it is

8 not the only form in which persecution can take place. The same goes for

9 the entire case law of this Tribunal. Persecution or persecutions; it is

10 not just murder plus discriminatory intent or the discriminatory intent

11 of the author of the persecution.

12 You also referred to the proof of the ingredients and elements of

13 each crime. This is a different question, in my view, from the question

14 of the way the cumulative-conviction test should be applied. Indeed, you

15 can have various forms of persecution, including murder. And we will

16 have to prove that there has been murder in this case. But this is not

17 the way of the case law of this Tribunal - and also, the Prosecution sees

18 the way the test should be applied. I hope I answered your question. If

19 this is not the case, I'm, of course, available to you for further

20 answers.

21 JUDGE SHAHABUDDEEN: Thank you, Mr. Tracol. You have assisted

22 me. What I have in mind is this: That paragraph 29 of that same count

23 in the indictment refers to certain previous paragraphs of the

24 indictment - 11, 22 through 26 - and when you consult those paragraphs,

25 they clearly refer to executions. You see that in 22, 23, 24 -- 24.6 and

Page 262

1 so on, right down through 26. What I have in mind: Is it possible to

2 argue that the indictment on persecution has been so constructed that it

3 relates not merely to the physical conduct, as it were, of the accused

4 but to his having committed murder in respect of these various and

5 manifold executions, so that murder would be subsumed in persecutions,

6 would form a complete part of persecution? And therefore, would there

7 remain any element of murder which would not be comprehended by the

8 charge of persecution?

9 MR. TRACOL: [Interpretation] Your Honour, my answer will be

10 simple, even simplistic. The Office of the Prosecutor decided to charge

11 General Krstic with persecution, including in the form of murder, but

12 also for murder as a crime against humanity. If the Office of the

13 Prosecutor had intended to subsume murder into a wider crime of

14 persecution, it would not have added a distinct count of murder, it would

15 merely have mentioned murder as one of the manifold forms of the count of

16 persecution. But this is not the position taken by the Office of the

17 Prosecutor, since according to the Office of the Prosecutor you have

18 distinct elements for persecution and murder. And persecution can indeed

19 take the form of another crime against humanity; for instance, murder, in

20 this case, but can also not take the shape or form of a murder.

21 Persecutions can also take the form of a crime that is not specifically

22 mentioned in the Statute; I have in mind abuse. And this goes to show

23 that the ingredients of these two offences are materially distinct

24 elements.

25 I hope I have answered your questions, once again.

Page 263

1 JUDGE SHAHABUDDEEN: One last point. I'm only trying to educate

2 myself as to the nature of your case, and I'm not putting to you any

3 preconceived position. Would I be correct, then, in understanding your

4 reply to me to be this: That, well, in respect of murder he is not

5 charged with murder simpliciter but murder as a crime against humanity

6 and that involves the various elements of a crime against humanity which

7 are not comprehended in persecution? But isn't persecutions itself a

8 crime against humanity?

9 MR. TRACOL: [Interpretation] Your Honour, I would need to answer

10 your question to go back to the intent of the legislator, of the

11 law-maker, who in this very instance was the Security Council. The

12 Tribunal only has to apply the Statute and its provisions. The Article

13 5, in relation to crimes against humanity, comprises persecution with a

14 -- a discriminatory element, which is very clear the way it is stated

15 under Article 5(H) of the Statute.

16 The Statute also comprises among crimes against humanity murder,

17 and the way the Office of the Prosecutor interprets and reads this is

18 that by making these two elements offences the law-maker, wanted to

19 protect various public interests and wanted them to be reflected in the

20 fact that such acts are criminalised with regard to the acts of the

21 accused. This is why the Tribunal has to implement the Statute, and I do

22 believe that the elements of these two offences are distinct elements,

23 because in murder there is the death of the victim; persecutions do not

24 necessarily mean that the victims are going to be killed. They don't

25 necessarily amount to a murder.

Page 264

1 JUDGE SHAHABUDDEEN: Thank you very much, Mr. Tracol. I'm

2 obliged to you.

3 JUDGE MERON: [Microphone not activated] Thank you very much,

4 Judge Shahabuddeen.

5 Before turning to my question, if I may just, with regard to the

6 exchange that has taken place, say only this: Yes, the intent of the

7 legislator surely is cardinal for our work; but the intent of the

8 legislator is not always all that clear, and it is -- this explains why

9 the Tribunal had to resort to interpreting the intent of the legislator,

10 and it did so by developing its fairly complex and sophisticated

11 jurisprudence on cumulative convictions. So just to mention the intent

12 of the legislator is not, I would suggest, all that helpful.

13 Now, I would like to ask still on this question of cumulative

14 conviction, I would like to turn to another aspect of the pairing of

15 offences, that involving genocide and extermination. I would benefit

16 from your help on how to define actus reus for genocide in comparison

17 for -- to actus reus for extermination. The Statute speaks of --

18 describing the prohibited act as killing, as you know, members of the

19 group. We are talking about certain protected groups. Now, does the

20 word "members" imply some kind of a minimal number of people that one

21 must murder to commit genocide? Is there a numerical threshold there?

22 And how would that compare with the actus reus for extermination? That's

23 my first question to you.

24 MR. TRACOL: [Interpretation] Mr. President, Your Honours, first

25 of all, with regard to the actus reus of genocide, if you read the

Page 265

1 Statute and Article 4, there are many ways in which you can commit

2 genocide. Murder is one of the ways in which it can be done. But it is,

3 if you read the Statute - and therefore, from a strictly theoretical

4 point of view - it's not the only way genocide can be committed according

5 to the Statute. For instance, you can try -- that you can try to prevent

6 the birth of members of a group. I forgot the exact wording. I'm sorry.

7 I'm looking at the Statute. These are measures destined to prevent

8 births.

9 JUDGE MERON: My question was -- referred exclusively to

10 paragraph 2(a) of Article 4, killing members of the group. There's no

11 need for you to complicate the matter further by discussing other aspects

12 of Article 4, paragraph 2.

13 MR. TRACOL: [Interpretation] I'm so sorry, Mr. President.

14 Indeed, I had failed to read your question properly.

15 With regard to genocide as committed through murder, the

16 Tribunal, including the Appeals Chamber, has already set out the issue in

17 the Jelisic case. It appears from the Jelisic case, both from the trial

18 judgement as well as the appeals decision the murder of a single victim

19 is enough to constitute genocide, as long as the accused had the mens rea

20 to destroy all or part of a protected group.

21 It is quite a -- an essential difference with regard to

22 extermination, where the actus reus also includes a contextual element.

23 Indeed, the case law in the ICTY and in the ICTR says that the murder

24 must be committed in a context of a mass murder. Context; I underline

25 that. It doesn't mean that a person accused of extermination must

Page 266

1 necessarily have committed the murder of a large number of victims. It

2 is easily conceivable that an accused kills one single victim in the

3 global context of mass murder and that a Chamber would find this act to

4 be extermination. At any rate, you need to have a murder of at least one

5 victim in both cases, as decided by the Jelisic decision for genocide but

6 also for extermination, even if the single murder, in theory, at least,

7 has to have taken place in the context of mass murder.

8 JUDGE MERON: Could you say something a little bit more about

9 this context of mass murder for extermination, then. What would be

10 required in order for a single murder to be -- to be regarded as part of

11 extermination?

12 MR. TRACOL: [Interpretation] Mr. President, Your Honours, in my

13 view, it all depends in the way the offence has been committed. As

14 applied at least in this Tribunal of the notion of the joint criminal

15 enterprise, an accused must be associated to a joint criminal enterprise

16 intent on committing extermination or genocide by killing one victim -

17 even if he, as such, does not kill a large number of people. However,

18 the accused will be seen as identified or associated as other authors of

19 the genocide or the extermination.

20 JUDGE MERON: Thank you. Could I ask you one more question: If

21 you look at pages 240, 241, and specifically at footnote 1455 - 1455 - of

22 the judgement of the Trial Chamber, you will see that the Trial Chamber

23 drew on the International Criminal Court and it defined genocide as a

24 prohibited conduct which, and I quote, "took place in the context of a

25 manifest pattern of similar conduct." And this is, of course, not

Page 267

1 stated, as we all know, in the Statute of the ICC; it is something which

2 is stated in the elements of crimes adopted by the ICC preparatory

3 commission. Do you believe that this definition, which appeared as I

4 cited it, in the -- has reflected customary law at the time when Mr.

5 Krstic's conduct in question took place? If not, would it be

6 appropriate for us to follow this statement which is included in elements

7 of crimes? Yes.

8 MR. TRACOL: [Interpretation] Mr. President, Your Honours, the

9 Prosecution believes that the Trial Chamber erred in granting so much

10 importance, and especially in giving the legal value that it did to the

11 Rome Statute in the judgement. The Rome Statute, which created the ICC,

12 does indeed allow to determine the opinio juris of the states, at the

13 time the Rome Statute was adopted; in other words, 1998. At least two

14 Trial Chambers in the case law so far established have concluded, as

15 such, the Rome Statute is not valued as international customary law.

16 This is paragraph 227 of the Furundzija trial judgement and footnote 1210

17 of the Kunarac trial judgement.

18 As I stated earlier on, the Rome Statute was adopted in 1998,

19 that is, following the crimes committed by General Krstic in Srebrenica;

20 they were submitted in 1995. It is, therefore, not possible to conceive

21 that the Rome Statute would be part and parcel of international law as

22 applicable in 1995. I repeat it: The Prosecution submits that the Trial

23 Chamber erred in defining extermination, in finding what it found in

24 paragraph 502 of the judgement.

25 JUDGE MERON: Judge Guney, you have the floor.

Page 268

1 JUDGE GUNEY: [Interpretation] Yes. Just one thing for you to be

2 able to clarify your views. The Rome Statute is the work of the

3 progressive development and of international customary law the way it is

4 being codified as time goes by. So if you look at the law, as it is

5 provisionally developed -- of course, the Statute is not part and parcel

6 of the international customary law; however, with regard to the

7 provisions related to the progressive development of law, the Statute is

8 part, is an integral part of international customary law.

9 MR. TRACOL: [Interpretation] Thank you, Judge Guney, for giving

10 me the opportunity to clarify our position with regard to this issue.

11 The Rome Statute is indeed a part of international law, ever since it was

12 adopted in 1998. But as to its value as part of international customary

13 law, I do not believe that it can be applied retroactively to the facts

14 of this case, to crimes committed back in 1995. Indeed, the Rome Statute

15 makes it possible for you to be guided in the way you apply international

16 humanitarian law. It is progress, indeed, in international criminal law;

17 however, the Rome Statute cannot be applied to this Tribunal. Of course,

18 it can be applied to the International Criminal Court, but with regard to

19 this Tribunal the Rome Statute can only be seen as a guidance. It cannot

20 be applied retroactively to facts that took place in 1995, whilst the

21 Rome Statute was adopted in 1998.

22 [Prosecution counsel confer]

23 MR. TRACOL: [Interpretation] Mr. President, Your Honours,

24 Mr. Farrell would like to take the floor on this issue.

25 MR. FARRELL: The issue of the interpretation of the Rome

Page 269

1 Statute and its relevance of international customary law is one of the

2 issues that's arisen from Mr. President's question.

3 The specific question about whether or not the context and the

4 pattern of conduct is actually required under international customary

5 law, as opposed to -- which will be part of my submission tomorrow, that

6 it was adopted in the circumstances of the ICC Statute -- will be

7 something that I will address tomorrow, if it that will be sufficient, as

8 it relates to the genocide issue, if that may assist the Court in any

9 way. Thank you, Mr. Farrell, and that would be perfectly agreeable that

10 this -- you would address this question tomorrow. And I am grateful that

11 you have specified that actually my question was very, very concrete, not

12 Statute of the ICC in general but only the particular definition with

13 regard to genocide requiring a manifest pattern of similar conduct.

14 And let me further specify that even this very specific language

15 does not appear in the Statute of the ICC but only in the elements of

16 crimes which were adopted by the preparatory commission of the ICC

17 subsequent to the adoption of the Statute. So let's just have this very

18 clear, and we will return to this tomorrow.

19 Now, we will now finally turn to the distinguished counsel for

20 the Defence, and we are, of course -- the Bench is very well aware of the

21 fact that he is starting his argument considerably later than we have

22 envisaged. And let me assure him that we will recalculate the time

23 allowed to him accordingly. And this afternoon I will give further

24 specification regarding the exact timetable with regard to argument of

25 the parties.

Page 270












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13 English transcripts.













Page 271

1 So we would ask you now to start your argument. And we will --

2 you will now start with your response, and you will have now until 1 hour

3 and 15 minutes, which is 45 minutes for your argument before the lunch

4 break. Thank you very much.

5 MR. SEPENUK: Thank you, Mr. President, and may it please the

6 members of this Honourable Chamber.

7 Incidentally, I have a feeling that I will be through with the

8 argument by 1.15 at -- barring that that doesn't take into account the

9 questions from the Court. But I think certainly my formal presentation

10 will be finished by then.

11 I'd like to start, with Your Honours' permission, on the

12 sentencing issue. Mr. Marcussen at the beginning of his comments - I

13 think I'm quoting him correctly - said that "When you have the murders of

14 some 7 to 8 thousand Bosnian Muslim men coupled with the deportation

15 forcible transfer of some 25.000 elderly men, women and children, coupled

16 with the crimes, the foreseeable crimes, that took place at Potocari

17 during 12 July -- 12 and 13 July 1995, it is - and I quote Mr. Marcussen

18 - "a simple proposition for the Trial Chamber to have decided that the

19 only recourse, the only possible sentence here, given that set of facts,

20 was a life sentence."

21 Mr. Marcussen made the same point in effect when he was talking

22 about how we cannot look at comparative guilt, we cannot look at the

23 extra sense of guilt of General Mladic [sic], when he said, and I quote,

24 he said, "Gradations must be set aside," - if I'm quoting Mr. Marcussen

25 correctly. I'm sure I am - "Gradations must be set aside when the crime

Page 272

1 is as heinous as this one."

2 I think that the Trial Chamber in one paragraph has answered what

3 Mr. Marcussen's position apparently is, and that's in paragraph 700, when

4 the Trial Chamber said "Genocide embodies a horrendous concept indeed,

5 but a close look at the myriad of situations that can come within its

6 boundaries cautions against prescribing a monolithic punishment for one

7 and all genocides or similarly for one and all crimes against humanity or

8 war crimes." That seems to me to make such eminently good sense; again,

9 not to be absolutist about it, we seem to be absolutist today. But it

10 makes eminently good sense to me. This really is -- this is what the

11 Trial Chamber is all about, applying discretion and making judgements

12 after seeing a mass of evidence and hearing witnesses and that kind of

13 thing.

14 And then the Trial Chamber in the Kunarac case I also think had a

15 very wise thing to say, when it said, "The Trial Chamber considers it

16 wrong to revert to some abstract comparison of the per se gravity of the

17 crimes." So what the Trial Chamber did in this case - and of course, we

18 think they were wrong in certain respects - but what the Trial Chamber

19 did in this case was assess all of the evidence and make a very reasoned

20 judgement as to what the sentence should be.

21 We believe, contrary to what the Prosecution is claiming, that

22 the conduct of General Krstic at this case is at the very bottom end of

23 the spectrum of culpability. We believe that the three main sets of

24 crimes that are involved here show his lack of premeditation and show

25 that he was indeed not indispensable to the commission of any of these

Page 273

1 crimes. And I'd like to briefly discuss three sets of crimes involved in

2 this case.

3 We're talking about forcible transfer first; we're talking about

4 crimes at Potocari second; and we're talking about the killings of the

5 Bosnian Muslim men last.

6 Starting with the forcible transfer, there's no evidence that

7 General Krstic was involved in the -- in the organisation of this. It

8 wasn't his idea. He didn't plan it. He just happened to be there. As

9 of July 12th, 1995, there was this meeting at the Fontana Hotel, the

10 Chamber -- the Judges will recall from Mr. Deronjic's testimony. And

11 Mr. Deronjic showed up at that meeting and he said there are three

12 options for the civilians; they can go, they can stay or they could go to

13 another country. Of course the third option was not practical.

14 Mr. Deronjic said -- but, you know, this was really a smoke screen. We

15 now know, indeed, it was a smoke screen. But Mr. Deronjic had been

16 interviewed a number of times prior to that. Your Honours will recall

17 that we tried to get his statements admitted in our Rule 115 motion, and

18 we also claimed it was a Rule 68 violation for the Prosecution not to

19 have turned that over to us, because certainly on the face of the

20 interviews it looked like a voluntary transfer, and we were critical of

21 the Prosecution not turning over the statement to us. At least in the

22 sense if you would accept what Mr. Deronjic said, if you would accept

23 what he said, then the citizens had an option whether to stay or to

24 leave.

25 In any event, we were turned down obviously in our Rule 115

Page 274

1 motion, but my point now is we all recognise that it was a smoke screen.

2 We're not contesting that in this case. It was indeed a smoke screen,

3 because when he was presenting that, he was interrupted by General Mladic

4 - and for reasons Your Honours know all about - General Mladic, in his

5 bullying-and-not-brooking-any-interference way, said words to the effect,

6 you know, "You can either face death or you can go." So that was the --

7 that was the situation.

8 Now, can this be attributable to General Krstic? No. Did

9 General Krstic -- is there any evidence indicating that General Krstic

10 knew that this was a smoke screen? Is there any evidence indicating that

11 he shared in any way, shape, or form the kind of -- the rigidity and the

12 cruelty that General Mladic was -- was using here? The answer again is

13 no.

14 So what did General Krstic do? He took part in the bussing

15 operation; yes, he did organise the buses. Now, how indispensable was

16 that? That was a mechanical operation -- he was -- by the way, he was

17 not the corps commander then, he was the deputy corps commander.

18 THE INTERPRETER: Could counsel slow down, please.

19 MR. SEPENUK: Sorry. I apologise to the interpreters.

20 He was the deputy corps commander. Anyone, I respectfully

21 suggest, could have organised the buses. It was really a mechanical

22 thing to do. And under those circumstances, the only humane thing to do

23 was indeed to organise the bussing operation. If the civilians were

24 truly facing death, if they didn't leave, for goodness sakes, the first

25 thing you have to do is get them away, get them to safety, get them out

Page 275

1 of harm's way. And General Krstic, of course - we know this now - said,

2 "Make sure not a hair on their head be harmed." And that was consistent

3 with the humanitarian attitude he'd had all his life. And I'm not going

4 to repeat it - we've set this forth in our briefs - all his life toward

5 Bosnian Muslims or indeed any other people. And it was -- it was also

6 events later on in the Zepa operation where he was so concerned about it

7 that he said, "If anyone interferes with the peaceful transfer of

8 civilians at Zepa, they'll be shot. I want absolutely nothing to

9 interfere with the safety of these civilians."

10 So again, General Krstic was involved in this at the last minute,

11 after it became evident that General Mladic intended a forcible transfer.

12 True, he learned it at that time; he did take part in it; but he did all

13 he could to guarantee that it was a safe and peaceful transfer of

14 civilians. I would suggest that puts him toward the bottom end of the

15 spectrum of culpability here and not the top end.

16 The crimes at Potocari - that's the second area we're talking

17 about now - there were murders and other violent acts, rapes, beatings,

18 property destruction on July 12th and 13th, 1995, while the civilians

19 were gathered there. And we went into this in some detail in our brief,

20 and it's very clear, as the Trial Chamber stated that, there is virtually

21 no evidence indicating that members of the Drina Corps took part in any

22 of these murders or beatings or rape, no evidence. There was one tiny

23 bit of evidence, which I think the Trial Chamber said was essentially

24 discredited. These crimes were committed by these paramilitary groups

25 and other groups who had come into the area, not by members of the Drina

Page 276

1 Corps. And you'll recall the letter that Mr. Petrusic showed to

2 Mr. Deronjic the other day at the -- at the additional evidence hearing,

3 the letter of July 9th, 1995 by Major General Tolimir, citing

4 instructions by President Karadzic that civilians were to be well

5 treated, that kind of thing. Their property was not to be destroyed -

6 this is OTP Exhibit 432 at the Krstic trial - and the civilian population

7 were to be treated and war prisoners indeed were to be treated in

8 accordance with the Geneva Convention.

9 So why was General Krstic convicted of the crimes at Potocari?

10 He was convicted at the crimes of Potocari because he was found to be a

11 member of a joint criminal enterprise to forcibly transfer the civilians.

12 That indeed is the case. And it is a -- under the law of the Tribunal,

13 if killings or violent acts are -- objectively speaking, are a naturally

14 foreseeable consequence of being a member of that enterprise, and if the

15 actor, speaking subjectively, knew that a -- it was a possible

16 consequence, that alone is sufficient under Tribunal law to result in a

17 conviction. It's, from the point of view of a defendant, Your Honours,

18 it's a very difficult standard of legal liability. I recognise with

19 total respect that that is indeed the standard in this Tribunal. But

20 General Krstic was convicted of these other crimes not because he took

21 part in them in any way. He advised -- he said, "Don't touch the

22 civilians." He did everything he could. He announced it on several

23 occasions that no one should be harmed. And we've set this forth in the

24 brief. Even Erdemovic, the -- one of the -- one of the murderers, one of

25 the executioners at Branjevo Farm, testified at the trial, "Yes, at

Page 277

1 Potocari, during that period, 12/13 July, we were told not to touch the

2 civilians." But the civilians were touched. But, again, General Krstic

3 did his best to make sure that they were treated correctly.

4 And it's ironic that, you know, he was not the corps commander

5 during that period; he was the deputy corps commander on 12 and 13 July

6 1995, and -- and also he -- the fact that he kept trying to do the right

7 thing under the Tribunal law, is evidence that he knew that it was

8 possible that such terrible acts should take place. So in effect, he was

9 -- and I say this -- I say this not -- I do say it indeed ironically --

10 he's furnishing evidence against himself under the -- under the Tribunal

11 rationale by, again, making these efforts to make sure that no bad things

12 would occur, he's -- for legal purposes, he's conceding that he knew it

13 was possible that these things could occur. But, certainly, there was no

14 evil intent here. The only evil intent, if we can call it that, is he

15 did indeed take part in a -- in a joint criminal enterprise to -- to

16 transfer the civilians., but that's it. Anything else that happened

17 after that with was, I'm sure, as repugnant to him as any other civilised

18 person.

19 And finally, the third area of responsibility, the third area of

20 culpability, are the killings of the Bosnian Muslim men. Now, these

21 killings took place between 13 and 19 July 1995. Now, the fact is that

22 General Krstic did not become the -- the corps commander, at least in

23 fact, until 13 July 1995, and we're accepting what the Trial Chamber

24 found on this issue. We had a different contention at the trial, as Your

25 Honours know; we claimed that he didn't become the corps commander until

Page 278

1 the 20th. But let's accept the finding of the Trial Chamber; he became

2 corps commander de facto on the 13th of July and de jure on the -- on the

3 15th of July.

4 It's undisputed that on the evening of July 11th General Krstic

5 was appointed by General Mladic to head and to take charge of the

6 military operation in Zepa and to establish a new command post there.

7 And from that time on, from the evening of July 11 on, with the exception

8 of one or two hours that he was in Potocari on July 12th - this is all

9 citing findings from the Trial Chamber now - he was more or less

10 continually at the Zepa command post. And I believe that the -- you'll

11 recall the testimony that was quoted from Mr. Obrenovic to the effect

12 that when he called General Krstic at the Krivace, at the Zepa command

13 post, on July 15th to tell him about the terrible situation that resulted

14 from the escape of the Bosnian Muslim men, the column and the pitched

15 battle and the furious battle that was taking place there,

16 General Krstic, according to Mr. Obrenovic, really didn't seem to know

17 what was going on. He seemed to be unaware of what was happening.

18 Now, I don't think -- we're not claiming he was totally unaware

19 of what was happening, but he certainly was not aware of the details of

20 what was happening. As the Trial Chamber held, he was very, very

21 occupied with the situation at Zepa. And again - and we're going to go

22 into this more this afternoon and tomorrow - the only direct evidence of

23 his involvement was that July 15th telephone conversation with Colonel

24 Beara in which you can legitimately infer General Krstic's knowledge that

25 men were being killed -- not, mind you, a genocidal plan, but that men

Page 279

1 were being killed. And it is our submission - and we'll be speaking to

2 that in more detail later - that he never did anything to further the

3 enterprise. He didn't participate in that sense. When Mr. Marcussen

4 said he participated, certainly he never did anything to aid and assist

5 in the executions. As I say, he did know about the killings, but he

6 really never was part of the plan to kill the men. And I don't think he

7 was indispensable in any way, even to that third operation. Now, the

8 Drina Corps, to the extent that assets were being used from the Drina

9 Corps, and there's no evidence that General Krstic himself ever -- ever

10 authorised the use of specific assets of personnel. To the extent,

11 though, those that they were used, certainly the Drina Corps would be

12 indispensable, but not General Krstic.

13 So that is our submission on the sentencing issue. There was a

14 lot more -- a lot more we said in our brief. We'd like to leave that to

15 Your Honours to peruse, which I'm sure you will. Mr. Marcussen didn't

16 spend any time really on Rwanda, or very little time. I'm going to spend

17 virtually no time on it, because I think it's not very useful at all to

18 engage in analysis of the cases there. Every case is unique. The Rwanda

19 situation is a documented genocide; 800.000 people killed, a number of

20 the defendants who were sentenced there actually personally took part in

21 the killings. It's a completely different situation than what we have

22 here.

23 I'd like to turn now to the cumulative-conviction issue. And I

24 have to say after listening to my learned colleague of the Prosecution,

25 and after listening to my questions from the Court, I say in all

Page 280

1 sincerity - and I know I speak for Mr. Petrusic too - that the Defence

2 team are children on the fringes of knowledge in this area. We don't

3 purport to have the depth of understanding or knowledge that the

4 Prosecution has in this case or, indeed, the members of the Court. We

5 understand that there's -- that the case is of limited practical

6 importance, as far as General Krstic is concerned, and that with it all

7 the Prosecution is not asking for any increase in sentence as a result of

8 their argument on cumulative convictions. There was a single sentence

9 imposed of 46 years, following a very careful consideration by the Trial

10 Chamber. If the Appeals Chamber affirms the conviction or some part of

11 it, we would very respectfully ask - and again, I don't know if this is

12 within Tribunal practice - but we would respectfully ask you to add to

13 any judgement that if you decide that additional convictions should have

14 been entered, that you note that if -- that General Krstic or suggest --

15 again, this can be the inclination of the Appeals Chamber -- that as a

16 result of any additional convictions being added, that General Krstic not

17 be prejudiced by this, that he still serve the sentence he would have

18 served under the Trial Court's holding.

19 There was a single sentence, based on a short period of activity,

20 and we think a single sentence certainly was appropriate. We certainly

21 disagree with the amount -- the number of years imposed here. And again,

22 we've -- we've set this forth in some detail in our brief. And I refer

23 Your Honours to that.

24 The only other matter I'd like to say on cumulative convictions

25 is: Musema was in French for quite a long time. It's no barrier to my

Page 281

1 learned friend here, of course. But it's now in English, and we have

2 read it, and we do think their point is well taken on that. I think that

3 the -- certainly the Chamber could enter convictions for extermination

4 and genocide. I say that, certainly, it appears to be that way from

5 Musema. Again, we don't have the depth or the sense of nuance that the

6 members of this Court have, or indeed that the Prosecution have, but

7 certainly on reading Musema we think the Prosecution's point is probably

8 well taken on that.

9 On the remaining cumulative-conviction issues, we do think that

10 the Trial Chamber tried to come up with a common sense practical

11 resolution. We tried to support that in our trial brief, and we would

12 like to leave the -- leave that to the Chamber. In other words, what we

13 said in our trial brief we would submit now to the Chamber.

14 Thank you very much.

15 JUDGE MERON: Thank you very much, Mr. Sepenuk.

16 Would my colleagues want to ask questions now, or would they want

17 to ask questions after lunch?

18 [Appeals Chamber confers]

19 JUDGE MERON: After lunch.

20 So I take it if there are no comments at this stage from the

21 Prosecution, we can now adjourn.

22 And let me just look at the timetable.

23 [Appeals Chamber confers]

24 JUDGE MERON: Okay. We -- we gained, thanks to the briefness of

25 the argument by Mr. Sepenuk, which we much appreciate, we have gained

Page 282

1 some time; and therefore, we will be able to adjourn as previously

2 planned, until 2.45. The Court will now rise.

3 --- Luncheon recess taken at 12.51 p.m.

4 --- On resuming at 2.48 p.m.

5 JUDGE MERON: Please be seated.

6 Now we shall have a reply by the Prosecution. Twenty minutes

7 have been allotted to that, and I understand that you might not need the

8 entire time, but in any event please go ahead, and we'll see how it goes.

9 Thank you.

10 MR. MARCUSSEN: Thank you, Your Honour.

11 Your Honour -- Your Honours, I -- I will not address a number of

12 the issues raised by -- by the respondent. I don't find that necessary.

13 We have briefed most of the issues already. So I will concentrate on one

14 particular issue, where -- one particular aspect of the respondent's

15 submissions, where we find it necessary to provide a reply.

16 In support of the respondent's arguments that the sentence should

17 not be increased, the respondent relied on a number of factual arguments.

18 This does not directly respond to the Prosecution's ground of appeal, but

19 as the respondent has relied on these factual propositions, in order to

20 argue that the sentence should not be increased, we find it necessary to

21 just make some clarifications with respect to what the Trial Chamber's

22 findings were on the issues raised by the respondent in support of this

23 argument.

24 I'm not implying anything intentional there in regard to what the

25 respondent said, in terms of -- of his view of the record, but I would

Page 283

1 like to state our reading of the judgement on a number of issues. It's

2 essentially four or five issues that the respondent addressed.

3 The respondent first stated that as a matter of fact he

4 essentially had no knowledge of the crimes being committed at Potocari,

5 and maybe even more generally the crimes being committed after the fall

6 of Srebrenica in general. Your Honours, the Prosecution submit that the

7 Trial Chamber's factual findings show otherwise. The respondent planned

8 the attack on Srebrenica. In so doing, he stated in his testimony at

9 pages 2163 to 2165 that he had knowledge of and prepared the plan, among

10 other things, in pursuant to directive number one, issued by Karadzic in

11 March 1995.

12 Your Honours, at paragraph 28 of the judgement, parts of

13 directive number one are quoted. I will just quote one sentence: "The

14 directive directs that by planned and well-thought-out combat operations

15 create an unbearable situation of total insecurity with no hope for

16 future survival and life of the inhabitants of Srebrenica." In preparing

17 prepare the plan for the attack on Srebrenica, the respondent had

18 knowledge of this directive and the plan was to implement this. He was

19 in charge of the operation at Srebrenica, and the Trial Chamber finds at

20 paragraph 335 that he was no ordinary participant. The Trial Chamber

21 finds that he could see the shelling of Srebrenica on the 10th and the

22 11th and that that -- those two days of shelling essentially was

23 calculated to terrorise the civilian population and to drive them out

24 from Srebrenica; that's paragraph 125.

25 The day after the shelling had stopped, on the 11th, the

Page 284

1 respondent was standing next to General Mladic in the centre of

2 Srebrenica town when General Mladic said that the moment has finally come

3 to take revenge on the Turks here." In the Prosecution's respectful

4 submission, this clearly show that the respondent -- well, these factual

5 findings by the Trial Chamber show that the respondent did indeed have

6 knowledge of the plan.

7 At paragraph 337, and I quote, "The Trial Chamber finds that

8 General Krstic was well aware that the shelling of Srebrenica would drive

9 out tens of thousands of Bosnian Muslim civilians from the town and into

10 a small area -- the small area of Potocari." He must have known,

11 inevitably, the basic needs for food and water and medicine at the site

12 would be -- would prove overwhelming. The Trial Chamber finds -- further

13 finds, excuse me - that General Krstic was fully appraised of the VRS

14 territorial goals in the Srebrenica enclave, which included cleansing the

15 area of the Bosnian Muslim population. So this is the factual backdrop

16 for the crimes that follows. And the Trial Chamber finds that he, the

17 respondent, was fully aware of this situation.

18 So the Prosecution submit that based on this evidence alone

19 there's no basis for the factual proposition by the appellant put forward

20 in his response to our appeal, that he essentially did not know what was

21 going on. Now, there are other findings that are not going to -- with

22 respect to the genocidal campaign. I discussed those at length earlier

23 on, and it's outlined in our brief, so I will not touch on that.

24 The respondent further put forward the factual proposition in

25 support of his argument that the sentence should not be increased, that

Page 285

1 essentially anyone could have organised the buses, and that he was sort

2 of insignificant in that respect. Your Honours, again, the Trial

3 Chamber's findings are as a matter of fact otherwise.

4 At paragraph 608, the Trial Chamber finds that the respondent

5 played a significant role. It is not consistent with the interpretation

6 of the facts that he was just an insignificant bystander or somebody who

7 happened to have been asked to help out.

8 The respondent also referred to Karadzic's order to take

9 Srebrenica from the 9th of March -- 9th of July, in the evening, and

10 referred to the fact that in that order it is directed that the Geneva

11 Conventions have to be complied with. Your Honours, the factual findings

12 by the Trial Chamber about how that attack took place, and especially

13 what was done to the civilians during that attack, simply show that this

14 part of the order either was not carried out or was actually never meant

15 to be taken seriously. And interestingly, in this context, my learned

16 colleague himself referred to the evidence from Deronjic that the Hotel

17 Fontana meeting and the offers to the Muslims that they could stay was a

18 mere smokescreen. With respect, Your Honours, the same would seem to

19 have been the case with the reference to the Geneva Conventions, or at

20 least, even if Karadzic had meant it, that part of the order was

21 certainly not implemented during the attack on Srebrenica, for which the

22 respondent was a crucial participant and had responsible -- was

23 responsible for the coordination of the attack.

24 My kind colleague draws my attention to the fact that I might

25 have said that I quoted from a directive number one. What I quoted from

Page 286

1 was directive number seven. In any event, what I attempted to quote from

2 was from paragraph 28 of the judgement, so I hope that that would create

3 no confusion.

4 The respondent was also put forward as a factual proposition that

5 he had, well, almost as a humanitarian act ensured that the refugees from

6 Potocari were put to buses and quickly sent away from the terrible

7 humanitarian conditions that they were in when they were in the UN

8 compound and around the UN compound. Your Honours, it's an interesting

9 interpretation, but I'd like to stress that this was actually considered

10 a criminal act. This was actually the act which was the implementation.

11 This was how the forcible transfer was carried out. So we do not agree

12 with this interpretation.

13 The respondent also referred to an instruction that nobody could

14 be harmed during the transfer of the civilians out of the Serb-held

15 areas. The Prosecution is not purporting that there's any finding that

16 this is a smokescreen, but as a matter of fact the Trial Chamber found

17 that soldiers were hitting civilians as they were boarding the buses - in

18 paragraph 48 of the judgement - that the buses were overcrowded and

19 unbearably hot; also, the DutchBat -- the UN forces were not allowed to

20 escort the buses to make sure that the civilians arrived safely at their

21 destination; and men who were trying to board the buses, in this

22 purported humanitarian act, were not allowed to get on and were later

23 taken to the "White House," where they were detained along with the other

24 people -- the other men who had been separated out from the group. And

25 at Cerska the buses were stopped specifically for the purpose of

Page 287

1 separating -- of taking out any men that might have been overlooked

2 before they left Potocari. Those men were also taken to detention

3 facilities and subsequently executed. The findings on this point I refer

4 Your Honours to paragraph 53 to 59, and 368 to 369 in the judgement.

5 The Prosecution also notes that the buses subsequently were --

6 that were used for the transfer of the civilians, or at least some of the

7 buses, subsequently were diverted to transport Bosnian Muslim men to

8 massacre sites at Kravica, findings at 217 and 215, and that buses were

9 diverted to transport the prisoners that were -- that were captured on

10 the road. I think maybe I'm wrong on the Friday; I think it was a

11 subsequent day. Those findings are found at 156 to 161 in the judgement.

12 Finally, the respondent put forward as a factual proposition

13 that, as I understand it - and maybe I misunderstood him - but I did

14 understand my learned colleague as saying that there was essentially only

15 one act of participation, which was the sending of Bratunac soldiers to

16 participate in the Branjevo Farm execution. With all due respect, again,

17 the Trial Chamber's findings were something else. So the respondent is

18 putting this forward as a factual proposition as to what the judgement

19 found and why our sentencing appeal should be dismissed, then we submit

20 that he -- well, that the judgement shows otherwise. Let me just put it

21 that way. And I apologise to my learned colleague. It's my lack of a

22 proper command of English. It's not that I am purporting that there had

23 been any attempt to misguide the Chamber.

24 The Trial Chamber's findings were that there was substantial and

25 compelling evidence to show that between the 14th and the 17th of July,

Page 288

1 resources of subordinate Drina Corps brigades were utilised in the mass

2 executions and that the Drina Corps Command must have known of its

3 subordinate unit's involvement in the executions; paragraph 296 of the

4 judgement.

5 The Trial Chamber also found specific acts of participation with

6 respect to the six massacre sites that I mentioned this morning. With

7 respect to Orahovac execution site, the Trial Chamber found that brigade

8 guards -- brigade members were guarding the prisoners and their -- and

9 that brigade vehicles were used for the transportation to the execution

10 fields and assisted in the subsequent execution and participated in

11 burials.

12 With respect to Petkovic Dam, the Trial Chamber found that

13 elements of the brigade transported prisoners to the detention sites --

14 from the detention sites - sorry - to the execution sites and

15 participated in the burials; active participation; 231 to 232.

16 With respect to Branjevo Farm, the Trial Chamber found that Drina

17 Corps assets were an integral part of these executions. Popovic, the

18 assistant commander for security, was heavily involved and monitored and

19 reported on the operation. The Drina Corps Command organised fuel for

20 the execution; they were essential to the transport and execution of the

21 prisoners. Drina Corps Command played an organising role and

22 coordinating role, and Drina Corps military police -- military police

23 guarded prisoners in the buses that took them to the site where they were

24 killed. Subsequently, Zvornik Brigade equipment were used to bury the

25 victims.

Page 289

1 On the 16th of July, at Pilica Cultural Dom, Bratunac -- elements

2 of the Bratunac Brigade were found to have participated in the killings.

3 At Kozluk, Zvornik Brigade -- elements of the Zvornik Brigade

4 participated in the burials of victims, and at Nezuk executions were

5 carried out by -- with the participation of units under the command of

6 the -- of the Zvornik Brigade. All this are factual findings by the

7 Trial Chamber that they -- the Trial Chamber considered acts of

8 participation in these crimes. And the Trial Chamber found at paragraphs

9 378 to 423 that the respondent had knowledge and directly participated in

10 these crimes.

11 Apart from the specific involvement, the Trial Chamber also

12 summed up the respondent's participation as being that of -- or that he

13 had a key coordinating role in the implementation of the killing

14 campaign.

15 I have not mentioned, Your Honours, the disputed intercepts. I

16 know they're going to be discussed tomorrow. But in the Prosecution's

17 submission, the intercepts from the 15th and 16th and 17th of July also

18 show acts of participation. But I think I've already spent a long time

19 responding to my colleague's -- or replying to my colleague's response,

20 and I do not wish to take up any more of Your Honours' time with this.

21 The basic point that the Prosecution have been trying to make is simply

22 that to the extent that the respondent has relied on certain factual

23 propositions, they are not supported by the Trial Chamber's findings, and

24 therefore his arguments do not support -- well, first of all, they're not

25 a response to our sentencing appeal; and secondly, those propositions do

Page 290

1 not support even his suggestion that the sentence should not be

2 increased.

3 This, Your Honours, completes my submission in reply. Thank you.

4 JUDGE MERON: Thank you, Mr. Marcussen.

5 We will now turn to the Defence, which will now have -- I'm

6 terribly sorry.

7 [Appeals Chamber confers]

8 JUDGE MERON: Oh, I'm terribly sorry. Before we turn to the

9 Defence, I would invite my distinguished colleague, Judge Shahabuddeen,

10 to ask a question.

11 JUDGE SHAHABUDDEEN: [Microphone not activated]

12 THE INTERPRETER: Microphone, please, Your Honour.

13 JUDGE SHAHABUDDEEN: I asked you this morning a question as to

14 whether the legality of minimum imprisonment recommendations was

15 discussed in the Tribunal, and you gave an answer, and I admitted to you

16 that I hadn't done my homework. So it now falls to me to say to you that

17 I have seen over the interval your Prosecution appeal brief at page --

18 page 72, paragraph 5.3, where you referred to the matter, and I have also

19 to acknowledge that I've seen the Tadic decision of 26 January 2000, at

20 paragraphs 28 to, I think -- yes, 28, thereabouts, where the matter was

21 discussed. Lamentably, I must admit to you, that I sat on the Tadic

22 decision.

23 MR. MARCUSSEN: Well, Your Honour, for my part, I must apologise

24 for not have been more helpful in directing. I may have misunderstood

25 the scope of your question. Thank you very much.

Page 291

1 JUDGE MERON: Thank you, Counsel, and thank you so much, Judge

2 Shahabuddeen.

3 Any other questions? Judge Guney, Judge Pocar? No.

4 So we will now turn to additional submissions by the Defence.

5 And you have one hour today, if that's all right, and you will continue

6 tomorrow.

7 MR. SEPENUK: Thank you, Mr. President.

8 JUDGE MERON: Thank you.

9 MR. SEPENUK: And may it please the Judges of this Honourable

10 Court.

11 The precise question -- we're going to start with the judgement

12 issue. The precise question is whether the Trial Chamber erred in

13 finding that there was a joint criminal enterprise which intended to

14 destroy the Bosnian Muslim group in part at Srebrenica and whether

15 General Krstic shared that genocidal intent. And I'd first like very

16 briefly to set forth the legal principles that I believe this Tribunal

17 has laid down over the last several years, the principles that I think

18 will govern the appeal in this case.

19 First of all -- and by the way, I'm doing this by way of just

20 setting the context. I know that these principles are very well known to

21 the members of the Court, but I want to set some context for our factual

22 argument.

23 Obviously genocide is a unique crime with special emphasis placed

24 on specific intent or dolus specialis. As the Stakic Trial Chamber said

25 recently, it's a crime that's distinguished by a surplus of intent. The

Page 292

1 intent must be to destroy the group in part. And as the Samardzija case

2 pointed out, there is no numeric threshold of victims necessary to

3 establish genocide.

4 And as the Stakic Trial Chamber put it, "This Trial Chamber

5 emphasises that in view of the requirement of a surplus of intent, it is

6 not necessary to establish with the assistance of a demographer the size

7 of a victimised population in numerical terms. It is the genocidal dolus

8 specialis that constitutes the crime."

9 A few more quotes on the question of numbers. I'm sure it goes

10 without saying that General Krstic's lawyers are as appalled by the

11 brutality and the horror of what happened at Srebrenica, as any civilised

12 person should be. And we agree with one essayist on the subject who

13 wrote - and I quote, "From a humanist point, it is quite repugnant to

14 weigh the number of deaths which would accord significance in terms of

15 the convention. Death and suffering are hardly matters for mathematical

16 calculation." We subscribe to that completely.

17 In a humanitarian sense, then, we speak of numbers reluctantly,

18 but we must do so because historically and logically it's one method and

19 one method only in determining genocidal intent.

20 Numbers, of course, are also important in considering whether the

21 perpetrator's intent was to destroy the group in substantial part,

22 because the case law in both the ICTR and the ICTY have held that the

23 crime of genocide by its very nature requires an intention to destroy at

24 least a substantial portion of the group. And once the overall genocidal

25 plan of action was established - for example, in the ICTR cases, as it

Page 293

1 was conclusively - the issue became only one of whether the killings by

2 the individual defendants were pursuant to the genocidal plan. We don't

3 have that in the ICTY cases. We do not have an unequivocal, documented

4 intent as in Rwanda to destroy the group or part of the group. If a

5 small number of persons are destroyed, it may not provide a sufficient

6 basis for inferring genocidal intent. In Jelisic, less than a few hundred

7 100 individuals were killed, but there was a documented intent to destroy

8 the Bosnian Muslims of Brcko, since Jelisic openly styled himself as the

9 Serbian Adolf and openly proclaimed his hatred of the Bosnian Muslim

10 people and his desire to kill them.

11 In Sikirica and Stakic, the numbers destroyed were higher. 1000

12 to 1400 people in Sikirica and some 3.000 in Stakic, many of whom in each

13 case were killed at the Keraterm and Omarska detention camps. But these

14 Trial Chambers held, first in Sikirica, that the numbers alone were an

15 insufficient to show genocidal intent, and then in both cases that was

16 not -- that there was not genocidal intent in any event, since the

17 dominant purpose of the conduct was ethnic cleansing.

18 In summary, on these general principles, the crucial factor in a

19 genocide case is not just numbers killed but rather the determination of

20 genocidal intent. A few hundred killings where the necessary intent is

21 shown --

22 THE INTERPRETER: Could the counsel please slow down for the

23 benefit of the interpreter.

24 MR. SEPENUK: Yes. I apologise for that.

25 A few hundred killings where the necessary intent is shown may be

Page 294

1 sufficient to warrant a finding of genocide, as in the Jelisic case, as

2 the Jelisic Appeals Chamber noted. But the killing of a multitude of

3 people, as for example, the blowing up of a number of buildings

4 containing thousands of people, or indeed the dropping of an atomic bomb,

5 may not be genocide if not accompanied by the necessary genocidal intent

6 to destroy and establish part of a group, as such.

7 Continuing with general principles: How have Courts gone about

8 the process of determining genocidal intent? The Trial Chamber in Stakic

9 provided one answer to that question, as follows - and I quote - "It is

10 generally accepted in the jurisprudence of this Tribunal and the Rwanda

11 Tribunal that genocidal dolus specialis can be inferred either from the

12 facts, the concrete circumstances, or by a pattern of purposeful

13 conduct." With these general principles as guides, I could like now to

14 turn to our argument that the Trial Chamber erred in finding that there

15 was a specific genocidal intent on the part of a joint criminal

16 enterprise and on the part of General Krstic to destroy part of the

17 Bosnian Muslim group as such.

18 In determining whether genocide was committed as Srebrenica, the

19 Trial Chamber considered two separate and uncontroverted sets of facts:

20 First, that during the period 11 to 12 July 1995, approximately 25.000

21 Bosnian Muslims - most of them women, children, and elderly, who were

22 living in the Srebrenica area - were transferred by Bosnian Serb forces

23 to Bosnian Muslim-held territory; second, during the period 13 to 19 July

24 1995, as 10 to 15 thousand Bosnian Muslim men attempted to flee the area,

25 many were taken prisoner and some 7500 Bosnian Muslim men were then

Page 295

1 executed. In holding that there was a joint criminal enterprise to

2 commit genocide, the Trial Chamber stated as follows - this is at

3 paragraph 594 - "The Trial Chamber concludes from the evidence that the

4 VRS forces sought to eliminate all of the Bosnian Muslims in Srebrenica

5 as a community. Within a period of no more than seven days, as many as 7

6 to 8 thousand men of military age were systematically massacred while the

7 remainder of the Bosnian Muslim population present at Srebrenica, some

8 25.000 people, were forcibly transferred to Kladanj. The Bosnian Serb

9 forces knew by the time they decided to kill all the military-age men

10 that the combination of those killings, with the forcible transfer of the

11 women, children, and elderly, would inevitably result in the physical

12 disappearance of the Bosnian Muslim population at Srebrenica."

13 After finding a joint criminal enterprise to commit genocide, the

14 Trial Chamber concluded, with respect to the individual guilt of

15 General Krstic, as follows - paragraph 634 - "Having already played a key

16 role in the forcible transfer of the Muslim women, children, and elderly

17 out of Serbian-held territory, General Krstic undeniably was aware of the

18 fatal impact that the killing of the men would have on the ability of the

19 Bosnian Muslim community of Srebrenica to survive as such.

20 General Krstic thus participated in the genocidal acts of killing members

21 of the group under Article 42(a) with the intent to destroy a part of the

22 group."

23 THE INTERPRETER: Could counsel slow down, please.

24 MR. SEPENUK: I apologise. I'm going to make a very measured

25 effort now. In fact, I may go too slow now. I'm really going to try and

Page 296

1 do this right.

2 Our submission is that the Trial Chamber erred in finding that

3 genocide occurred at all under the facts presented at trial. The Trial

4 Chamber correctly identified the protected group as the Bosnian Muslims.

5 And in paragraph 560 -- 559 of the opinion. This is a detour here - the

6 Trial Chamber specifically noted that the group was the Bosnian Muslims,

7 not the Bosnian Muslims of Srebrenica, for other reasons, saying - and I

8 quote - "The only distinctive criterion, that is, of the Bosnian Muslims

9 of Srebrenica, would be their geographical location; not a criterion

10 contemplated by the Convention." The Trial Chamber further correctly

11 found that when considering an attempt to destroy a part of a group, the

12 part must be a substantial part of the whole. However, when the Chamber

13 compared the Bosnian Muslim men that were killed, it did not compare that

14 part to the whole of the Bosnian Muslim group, some 1.4 million people,

15 but, rather, looked to the effect that the death of the military-aged men

16 would have on the ability of the Bosnian Muslim community to exist at

17 Srebrenica.

18 This comparison, we suggest, was erroneous in two ways: First, it

19 diluted the numerical requirement of substantially; and second, it

20 equated ethnic cleansing with genocide, an issue that I'll shortly

21 address.

22 Our submission is that the Trial Chamber erred in finding

23 genocide, based on an intent to destroy a part - that is, the

24 military-age men - of a part - that is, the Muslims of Srebrenica - of a

25 protected group, and that being the Bosnian Muslims.

Page 297

1 The Trial Chamber, in our submission, should have compared the

2 number of men killed, approximately 7500, to the whole of the Bosnian

3 Muslim group, of 1.4 million people. Under that percentage, under that

4 standard, the percentage is approximately one-half of 1 per cent of the

5 Bosnian Muslim population; clearly an insignificant percentage standing

6 alone to infer an attempt to commit genocide. The Trial Chamber never

7 made that comparison; rather, the Trial Chamber concluded that the

8 killing of the men had a substantial impact on the survival of the

9 Bosnian Muslim population at Srebrenica.

10 It is our submission that it was error for the Trial Chamber to

11 conclude that the mass killings in Srebrenica were committed be the

12 intent to destroy the group that resided there. The offence at

13 Srebrenica must further be shown to have been committed within the

14 context of an intent to destroy the group as such. This was the approach

15 taken by the Trial Chamber in the Sikirica case, where it said: "There

16 are two elements" - and I'm quoting now - "in the chapeau of Article

17 4(2), which the Prosecution is required as a matter of law to establish:

18 First, it must establish the intent to destroy in whole or in part the

19 Bosnian Muslim or Bosnian Croat population in Prijedor; secondly, it must

20 also establish an intention to destroy the Bosnian Muslim or Bosnian

21 Croat group as such. These two elements are cumulative; that is to say,

22 the Prosecution must not only establish an intention to destroy the

23 Bosnian Muslim or Bosnian Croat populations in whole or in part, but it

24 must also establish this intention to destroy these groups as such."

25 And then the Court in Sikirica went on to say, "Therefore, even

Page 298

1 if the evidence established an intention to destroy a part of the Bosnian

2 Muslim or Bosnian Croat population, the Sikirica motion would still

3 succeed because what was targeted was not the group as such but

4 individual members of the group," and the Court went on to hold that acts

5 of persecution were indeed proved but not genocide.

6 The Krstic Trial Chamber never considered the second cumulative

7 aspect that the Court spoke about in Sikirica. Had it done so, it would

8 have had to conclude that there was no evidence that the killings in

9 Srebrenica were done with the intent to destroy the Bosnian Muslim group

10 as such. The Trial Chamber's conclusion that "by killing all the

11 military-age men the Bosnian Serb forces effectively destroyed the

12 community of the Bosnian Muslims in Srebrenica as such and eliminated all

13 likelihood that it could ever re-establish itself on that territory"

14 belies any intent to destroy the Bosnian Muslim people as such, as

15 opposed to only displacing the Bosnian Muslim people from that territory.

16 When I say "only," terrible as that may be, we're trying to make that

17 distinction, only by displacing them, not destroying them.

18 As William Schabas considered perhaps, the lead commentator on

19 the law of genocide, stated in his recent Fordham Law Journal article,

20 which, as Your Honours know, is attached to our Defence appeal brief and

21 has now been officially printed, "would someone fully bent on the

22 physical destruction of a group and cold-blooded enough to murder more

23 than 7.000 defenceless men and boys go to the trouble of organising

24 transport so that women, children, and the elderly could be evacuated?"

25 Indeed, one may legitimately conjecture that the boys and the women were

Page 299

1 the significant part of the Bosnian Muslim group, since, as Mr. Schabas

2 suggests, they in effect hold the key to the group's survival. In that

3 sense, the deportation of the women and children from Srebrenica bears,

4 we suggest, bears more, we suggest, on an intention to avoid committing

5 genocide rather than an intention to commit genocide.

6 Schabas -- Mr. Schabas also takes issue with the Trial Chamber's

7 conclusion that the intent in killing the men and boys of military age

8 was to eliminate the community as a whole. Schabas questions, at page 46

9 of his article, "can there not be other plausible explanations for the

10 destruction of 7.000 men and boys at Srebrenica? Could they not have

11 been targeted precisely because they were of military age and thus actual

12 or potential combatants? Schabas concludes as follows: "As crimes

13 against humanity, the atrocities in July 1995 in Srebrenica surely

14 qualify, but characterising them as genocide seems to distort the

15 definition unreasonably."

16 I'd like to turn to our second argument on why we think the

17 Chamber erred in the genocide finding, and that is that the Chamber

18 erroneously equated displacement of a population of ethnic cleansing with

19 genocide. As the Trial Chamber put it - and nowhere is this more evident

20 than in paragraph 594 of the opinion - "The Trial Chamber concludes from

21 the evidence that the VRS forces sought to eliminate all of the Bosnian

22 Muslims in Srebrenica as a community." The Court goes on to say, "The

23 Bosnian Serb forces could not have failed to know that by the time killed

24 all the men that this selective destruction of the group would have an

25 lasting impact upon the group. Their death precluded any effective

Page 300

1 attempt by the Bosnian Muslims to recapture their territory." Finally,

2 the Court said, "The Bosnian Serb forces knew by the time they decided to

3 kill all of the military-age men that the combination of these killings

4 with the forcible transfer of the women, children, and elderly would

5 inevitably result in the physical disappearance of the Bosnian Muslim

6 population at Srebrenica."

7 Moreover, in its judgement, the Trial Chamber states as follows:

8 "The Prosecution points us to the terrible impact the events of 11-16

9 July had upon the Bosnian Muslim community in Srebrenica. What remains

10 of the Srebrenica community" -- this is quoting from what the Prosecution

11 said -- "survives in many cases only in a biological sense, nothing

12 more." We respectfully suggest that if the Srebrenica community does

13 survive in a biological sense, which it does, then no genocide was

14 committed at Srebrenica.

15 Again, in his law journal article on this precise holding of the

16 Trial Chamber, Mr. Schabas had this to say - and I quote - "There is a

17 world of difference between physical destruction of a group and a lasting

18 impact upon a community. If the intent of the Serb forces was to have a

19 lasting impact on Srebrenica's Muslims and they did not intend to destroy

20 the community, the classic genocides of the twentieth century, those of

21 European Jews and Rwandan Tutsis are distinguished by the insistence upon

22 killing the women and children, precisely to ensure that the group is

23 effectively destroyed."

24 If the community survives in a biological sense, as it does here

25 in the presence -- in the persons of the women, children, and surviving

Page 301

1 men, then it is our submission that genocide was not committed. This is

2 consistent with the purpose of the genocide statute, as well as the

3 wording of the Statute itself, to which I will very shortly turn.

4 Mr. Schabas in his treatise entitled "Genocide in international

5 law" states at page 196, "There is no doubt the drafters of the

6 Convention quite deliberately resisted attempts to encompass the

7 phenomenon of ethnic cleansing within the punishable acts." In this

8 regard, we think it is also significant to note the in the Eichmann trial

9 which took place in the District Court of Jerusalem, the Court stated,

10 "The implementation of the final solution in the sense of total

11 extermination is to a certain extent connected with the cessation of

12 emigration of Jews from the territories under German influence."

13 Until mid-1941 when the final solution emerged, the Israeli Court

14 said, "A doubt remains in our minds whether that was here that specific

15 intention to exterminate, as required by the definition of 'genocide.'"

16 the Court stated that it would deal with such inhuman acts as being

17 crimes against humanity rather than genocide. The Court therefore

18 acquitted Eichmann of genocide for acts prior to August 1941 that dealt

19 primarily with emigration rather than killings.

20 And of course, all this is aside from the findings in the

21 Sikirica and Stakic cases that expulsion of a group does not amount to

22 genocide.

23 So to summarise, our second ground for reversal of the Trial

24 Chamber's findings is that it improperly concluded that the murder of the

25 Bosnian Muslim men, together with the transfer of the women and children,

Page 302

1 amounted to genocide.

2 The forced transfer of the civilian population was just that, a

3 transfer for which General Krstic was convicted. The murder of the

4 Bosnian Muslim men may have constituted acts of murder, persecution, and

5 extermination, for which General Krstic was also convicted - and

6 Mr. Petrusic will talk a bit about that tomorrow - but these crimes,

7 extermination, murder, persecution, stand alone. Taken together they are

8 not genocide.

9 Finally, the trial judgement itself strongly indicate that the

10 plan of the Bosnian Serb army was to ethnically cleanse the area and not

11 to commit genocide. The Trial Chamber found that the plan for Krivaja

12 '95 was a step toward the Serb goal of plunging the Bosnian Muslim

13 population into humanitarian crisis and ultimately eliminating the

14 enclave. That's paragraph 121 of the judgement. The continued shelling

15 of the Serbian forces, after the original objectives of Krivaja '95 had

16 been accomplished was to "terrify the Bosnian Muslim population and drive

17 them out of Srebrenica"; judgement paragraph 125. There's no doubt that

18 the terrorisation intensified and mass killings subsequently occurred,

19 but the Trial Chamber itself found at paragraph 360 that acts of murder

20 were not even contemplated at Srebrenica until as late as 11/12 July

21 1995, when the VRS became aware of the presence of men at Potocari and

22 the escaping column of Bosnian Muslim men.

23 THE INTERPRETER: Would Counsel please slow down, especially when

24 reading.

25 MR. SEPENUK: I'm going to truly make an effort to be very, very

Page 303

1 measured.

2 Our submission is that a reasonable Trial Chamber, applying the

3 presumption of innocence, should have concluded that the intent of the

4 perpetrators was what it had been from the start, to ethnically cleanse

5 the area of the Bosnian Muslims, not to eliminate the group as such in a

6 physical or biological sense. The Trial Chamber here reached an

7 inferential conclusion of genocidal intent, despite the more logical

8 conclusion that the executions of the military-age men were because they

9 were of military age and that the forced transfer of the women, children,

10 and elderly from Srebrenica was to ethnically cleanse the area and not to

11 physically or biologically destroy the group.

12 In making this finding of an intent to commit genocide by a joint

13 criminal enterprise, as well as their finding relating to the individual

14 intent of General Krstic, we believe that the Trial Chamber has not

15 followed the law of this Trial Chamber as set forth in the Delalic appeal

16 judgement, which I mentioned the other day. And that, of course,

17 requires particularly in a circumstantial evidence case, as here, that

18 factual conclusions "must be established beyond reasonable doubt. It is

19 not sufficient that it is a reasonable conclusion available from that

20 evidence. It must be the only" - underline, only - underlined in the

21 opinion - "reasonable conclusion available. If there is another

22 conclusion which is also reasonably open from that evidence which is

23 consistent with the innocence of the accused, he must be acquitted."

24 The Trial Chamber in the Vasiljevic case put the matter another

25 way, based on the same legal principle - where the Prosecution -- and I

Page 304

1 quote here - "Where the Prosecution relies on proof of state of mind by

2 inference that, inference must be the only reasonable inference available

3 on the evidence."

4 The Trial Chamber in the Krstic case, while acknowledging that

5 his was a case which was based upon "layer upon layer of circumstantial

6 evidence" nevertheless resolved a number of the key factual issues in the

7 ase by making presumptions which we suggest were not the only reasonable

8 conclusions from the evidence. We've set forth a number of these

9 holdings of the Trial Chamber, mostly -- in our brief. That's, I

10 believe, it's page 31 to 33. And mostly conclusions by the Trial

11 Chamber, that General Krstic "must have known" or "could not have failed

12 to know", or "could only surmise that"; that kind of thing. We mention

13 these principles of law now, since they become even more relevant when we

14 discuss later the Trial Chamber's holding that General Krstic intended to

15 commit genocide.

16 I'd like to take a very brief detour here now and talk about

17 Mr. Deronjic's testimony. As Your Honours know, it's our position that

18 the decision to kill the men was indeed a last-minute decision, that

19 materialised, as the Trial Chamber held, on the evening of July 11th or

20 the morning of July 12th. The only thing that derogates from that

21 conclusion was the appearance in the testimony of Mr. Deronjic the other

22 day. And I've taken notes on his testimony, and we think there's nothing

23 in his testimony which would -- should cause Your Honours not to accept

24 the judgement of the Trial Chamber on this issue. And I'd like to

25 proceed with my analysis of Deronjic's testimony.

Page 305

1 My notes show that his testimony was this: On July 8th and 9th,

2 1995, he had a conversation with Karadzic about the Western Slovenian

3 principle. It was not a plan, it was discussed as a possibility. And

4 two options were mentioned: One, reduce the enclave to its urban core, or

5 take over the town of Srebrenica.

6 Now, the Western Slavonian principle was mentioned; kill them

7 all, kill all the people. And Western Slavonian, of course, was that --

8 described a situation involving indiscriminate shelling of civilians and

9 military fleeing a town. Well, for one thing, we don't have that in our

10 case. We don't have indiscriminate shelling of civilians and military

11 fleeing a town. What we do have is - there's no question we do have

12 shelling of Srebrenica, and I believe there's also shelling of the --

13 some of civilians on their way to Potocari - if that indeed was the

14 carrying out of the Western Slavonia principle, it was over by July 9th,

15 July 10th at the latest. And again on July 9th, Mr. Karadzic issues that

16 is order. Remember Prosecution Exhibit 432. And General Tolimir signed

17 the order, but it quotes President Karadzic as saying, "For goodness

18 sakes, treat the civilians with care. Don't harm the civilians," that

19 kind of thing. So if there was this notion of destroying everybody, it

20 was gone. That was just a tentative thing. It was a conversation, a

21 brief conversation between two people. We claim that nothing ever

22 eventuated from that. And if the shelling of Srebrenica and the

23 civilians on the 8th and 9th and 10th constitutes the Western Slavonian

24 principle, it was over by then. And, of course, the civilians were

25 subsequently bussed to safety. And everything that happened thereafter

Page 306

1 was consistent with a change of plan. For example, Mr. Deronjic

2 attending the meeting at the -- at the Fontana Hotel at the direction of

3 -- of Mr. Karadzic, talking to the civilians and talking about the option

4 to stay, to go to a third country, that kind of thing.

5 Now, Mr. Deronjic says that was a smokescreen. And it very

6 well -- it may very well have been a smokescreen. Again, as we said

7 before, not a smokescreen that General Krstic was privy to, but a

8 smokescreen to cover up the forcible transfer of the civilians. But, of

9 course, that has nothing to do with any kind of a smokescreen to cover up

10 killings.

11 The next -- the next conversation note was on July 13th, when

12 prisoners are being held in Bratunac, and Mr. Deronjic asks President

13 Karadzic what to do, and the short of it is -- remember there was that

14 coded message, and then -- which Deronjic interpreted to mean we're going

15 to take the -- the people in custody in Bratunac and send them to the

16 area Bijeljina at the Batkovici camp. And Deronjic is told by Karadzic

17 that someone will come to tell him how to deal with the prisoners in

18 Bratunac. And again, he interprets the coded comments to mean go to

19 Batkovic.

20 Well, then Colonel Beara arrives. And as Deronjic testified, he

21 doesn't know who sent Colonel Beara. He has no idea. But Beara says he

22 has orders from the top to kill the prisoners in Bratunac. Deronjic

23 tells Beara that he has specific instructions from President Karadzic

24 that no prisoners are to be killed in Bratunac and they are to be moved.

25 Beara, who's the head of security for the Main Staff, a close ally of

Page 307

1 General Mladic, worked for General Mladic -- no love lost between

2 General Mladic and Mr. Karadzic -- Beara is under the direct control of

3 General Mladic. He reluctantly complies with the order of the civilian

4 Deronjic. Beara had to have come on instructions from somebody besides

5 Karadzic. If Beara had come from Karadzic, Deronjic could not have

6 bluffed him by saying that he had orders from President Karadzic. If

7 Beara's orders were also from Karadzic, his response would not have been

8 reluctant compliance but, rather, to tell Karadzic -- Deronjic that his

9 orders were also from the president. He did not do this. The only way

10 he could be put aside by Deronjic, the only way Beara could be bluffed by

11 Deronjic, was that if he was acting on orders from Mladic, the top of the

12 command, and believed that those orders were overridden by direct order

13 of the president, who was the Supreme Commander. And that it was Mladic

14 who ordered the killings is further confirmed by the testimony of Mr.

15 Obrenovic.

16 And I refer now to the argument that Mr. Daniel Moylan, the

17 Prosecutor, the Appeals Chamber, made the other day. I have a transcript

18 of it. He summarised it of Mr. Obrenovic said when he was testifying

19 recently. He said, "Mr. Obrenovic has said at the Nikolic trial" --

20 which has now been incorporated here - that's part of our additional

21 evidence - "that on the 13th of July his security chief came to him as he

22 was serving as acting commander of the Zvornik Brigade and advised him

23 that he had -- that the security chief had been informed of a plan to

24 execute the Muslim prisoners and that they would be transported to

25 Zvornik to be executed." Mr. Obrenovic at that point responded, "We

Page 308

1 can't undertake such an operation without support of our -- first of all,

2 our brigade commander, but also without reporting to the Drina Corps,

3 which would be General Krstic, and the Drina Corps command." And the

4 response from the security chief is quite telling because he said - and

5 this is the Prosecutor speaking - because he said - quoting - "there's no

6 need to report", quoting Obrenovic. "The orders came from Mladic, and

7 our commander knows" - meaning the brigade commander - and everybody

8 knows."

9 So again, there's no reason, we respectfully suggest, that the

10 Appeals Chamber should not pay respect to the finding of the Trial

11 Chamber that this was a last-minute decision to kill the Bosnian Muslim

12 men reached on the evening of July 11th, the morning of July 12th to cope

13 with what was turning into a disastrous military situation for the Serbs,

14 and that is the escape and the movement toward Tuzla by the column of

15 Bosnian Muslim men.

16 I would like now to turn to a discussion of how the Trial Chamber

17 arrived at its finding that the deportation of the women, children, and

18 elderly was essential to its consideration of the issue of genocidal

19 intent. I particularly say this in light of the fact that the Trial

20 Chamber specifically recognised - this is paragraph 580 - the Trial

21 Chamber specifically stated that "Customary international law limits the

22 definition of genocide to those acts seeking the physical or biological

23 destruction of all or part of the group."

24 Our submission is that the Trial Chamber enunciated this legal

25 principle requiring physical or biological destruction, but then clearly

Page 309

1 deviated from it, based largely on language contained in the 1994 final

2 report of the commission of experts.

3 And I want to pause here for a moment. The greatest single

4 failing of our briefs in this case was not even mentioning the commission

5 of experts. Our brief -- just to give some historical background here,

6 Your Honours -- was submitted under rather severe time constraints.

7 There is some brief mention of the commission of experts in the

8 Prosecutor's brief, but I think the single greatest disservice that we've

9 done to this Chamber so far is not to discuss with any adequacy

10 whatsoever the pivotal and fundamental role played by the report of the

11 commission of experts in the Trial Chamber's opinion. And one of the

12 main reasons for our submission of the additional appendix, the one that

13 Your Honours admitted into evidence on November 7th, a recent admission,

14 Annex 3 to our Defence appeal brief. It contain a number of documents

15 which relate -- which give not only addition until history of the

16 genocide convention and its commentaries. There's quite a substantial

17 amount in there on the report of the commission of experts. Because our

18 submission is that the Trial Chamber enunciated the legal principle about

19 physical destruction but then took into account the forcible transfer of

20 the civilians, equated that, then, the combination of two, with genocide

21 because of specific language it relied on in the 1994 final report of the

22 commission of experts. And I'd like to spend a fair amount of time on

23 that, because it was so crucial to the Trial Chamber's opinion.

24 The 1994 report of the commission of experts of the former

25 Yugoslavia concluded that the intention to destroy the fabric of a

Page 310

1 society through the extermination of its leadership, when accompanied by

2 other acts of elimination of a segment of society, such as deportation,

3 could be deemed genocide. This is the so-called qualitative test to

4 determine genocide.

5 The idea of -- this idea of the commission of experts was

6 discussed in the Jelisic and Sikirica cases, where ultimately the Court

7 did not find that the actions in those cases met the qualitative test for

8 genocide. The Trial Chamber in Krstic is the first Trial Chamber to make

9 such a holding.

10 In paragraph 634 of the judgement, the Trial Chamber stated as

11 followings: "Finally, the Trial Chamber has concluded that in terms of

12 the requirement of Article 4(2) of the Statute that an intent to destroy

13 only part of the group must nevertheless concern a substantial part

14 thereof, either numerically or qualitatively" - and that's what I stress,

15 either numerically or qualitatively - "the military aged Bosnian Muslim

16 men of Srebrenica do in fact constitute a substantial part of the Bosnian

17 Muslim group, because the killing of these men inevitably and

18 fundamentally would result in the annihilation of the entire Bosnian

19 Muslim community at Srebrenica." In making that finding, the Trial

20 Chamber totally adopted the argument contained in the Prosecution's final

21 brief, relevant excerpts of which we've set forth in Part J to our Annex

22 3. And in its brief, the Prosecution relying on the report of the

23 commission of experts argued as follows:

24 "By killing the leaders and defenders of the group and deporting

25 the remainder of it, the VRS and General Krstic had assured that the

Page 311

1 Bosnian Muslim community in Srebrenica and its surrounds would not return

2 to Srebrenica, nor would it reconstitute itself in that region or indeed

3 anywhere else." This, of course, was the precise finding of the Trial

4 Chamber. They adopted the Prosecution's argument in toto. Because what

5 the Court said at paragraph 595 is: "The Bosnian Serb forces knew by the

6 time they decided to kill all of the military-age men that the

7 combination of those killings with the forcible transfer of the women,

8 children, and elderly would inevitably result in the physical

9 disappearance of the Bosnian Muslim population at Srebrenica."

10 As we expect to show, we believe that this finding of the Trial

11 Chamber, based almost exclusively on the report of the commission of

12 experts, is contrary to both the letter and the commentaries to the 1948

13 genocide convention.

14 Our submission is that this report of the commission of experts

15 established two principles of law, which were followed by the Trial

16 Chamber in this case and should be rejected by this Chamber: First, the

17 expert's report advanced the principle adopted by the Trial Chamber in

18 paragraph 587 of the judgement, that the term "in part" in the genocide

19 statute relates not only to a reasonably significant number relative to

20 the total of the group as a whole, but also to a significant section of

21 the group, such as its leadership; the commission of experts in finding

22 that genocide could be established by the destruction of a significant

23 section of the group, such as its leadership, cited as authority a 1985

24 United Nations report on the question of the prevention and punishment of

25 the crime against humanity of genocide. This is the so-called --

Page 312

1 THE INTERPRETER: Would you kindly slow down.

2 MR. SEPENUK: I apologise again.

3 This is the so-called Whitaker report, which we have reproduced

4 in Annex 3, Section G that we submitted recently. The Whitaker report

5 speaking of "The extent of destruction of a group," states, "in part

6 would seem to imply a reasonably significant number relative to the total

7 of the group as a whole or else a significant section of the group such

8 as its leadership." As we expect to show, no language in the genocide

9 statute or any of the accompanying drafts or committee reports or debates

10 were cited by Mr. Whitaker to support this statement. Other than this

11 single sentence and the report of commission of experts based on it,

12 there is little, if any, support for the notion that a qualitative part

13 of the group by way of its leadership should be considered as relevant in

14 determining genocidal intent. Nor is there anything in the genocide

15 statute or accompanying drafting history to support the Trial Chamber's

16 conclusion in paragraph 587 that "Extermination specifically directed

17 against law enforcement and military personnel may affect a significant

18 section of the group in that it renders the group at large defenceless

19 against other abuses of a similar or other nature." This language of the

20 Trial Chamber is again based verbatim on the report of the commission of

21 experts.

22 The second principle emerging from the report of the commission

23 of experts is that, as the Trial Chamber puts it - and I quote - "The

24 attack on the leadership - this is paragraph 587 of the judgement - the

25 attack on the leadership must be viewed in the context of the fate of

Page 313

1 what happened to the rest of the group. If a group suffers extermination

2 of its leadership and in the wake of that loss a large number of its

3 members are killed or subjected to other heinous acts, for example,

4 deportation, the cluster of violations ought to be considered in its

5 entirety in order to interpret the provisions of the convention in a

6 spirit consistent with its purpose."

7 This language, again, in the judgement was taken verbatim from

8 the 1994 report of the commission of experts. Significantly, the Trial

9 Chamber italicised the language, "In the context of the fate of what

10 happened to the rest of the group." That's italicised in the Krstic

11 opinion by the Trial Chamber, obviously referring to deportation, thereby

12 showing unmistakably that deportation is a factor that ought to be

13 considered in whether genocide was committed, a finding we believe to be

14 erroneous.

15 I'd like to turn now to an examination of the genocide statute

16 and its accompanying commentaries and drafting history to demonstrate

17 that the 1948 genocide statute was intended to embrace within its

18 definition only those acts which demonstrate an intent physically or

19 biologically destroy a protected group or part thereof.

20 Now, other Trial Chambers, notably the Stakic Trial Chamber, has

21 provided a very important and useful analysis dealing with this issue.

22 But what we have found in our research over the last several months,

23 additional materials which I don't think has ever been brought to the

24 attention of any trial or appellate chamber. We think it's very

25 important to present now. And we're going to focus on the --

Page 314

1 THE INTERPRETER: Would you kindly slow down.


3 We will focus on demonstrating that the convention specifically

4 excluded mass displacement of the population from the definition of

5 genocide and further rejected the notion that elimination of a group's

6 leadership could be considered as evidence of genocidal intent.

7 I should like to begin very basically, very basically indeed,

8 citing from the 3 May 1993 report of the Secretary-General pursuant to

9 paragraph 2 of Security Council Resolution 808 of 1993. In that report,

10 the Secretary-General states as follows, and I quote, "In view of the --

11 it is in the view of the Secretary-General, the application of the

12 principle nullum crimen sine lege that the International Tribunal should

13 apply rules of international humanitarian law which are beyond any doubt

14 part of customary law. The part of conventional international

15 humanitarian law which has beyond doubt become part of international

16 customary law is the convention on the prevention and punishment of the

17 crime of genocide."

18 Now, I hasten to say that these principles, which were invoked in

19 the Jelisic and Stakic decisions, are very, very well known to every

20 member of this Chamber. The reason I mentioned it -- the reason I

21 thought it worth mentioning, despite the fact that Your Honours know this

22 stuff cold, is that because of a comment made by the Prosecutor in its

23 brief, right at the outset of its brief at page 3, where they say "At the

24 outset, the Prosecution notes that it is not the genocide convention of

25 1948 under which the appellant has been prosecuted but the crime of

Page 315

1 genocide as established at the relevant time pursuant to the Statute of

2 the Tribunal." That is undoubtedly true, but I believe that the

3 statement of the Prosecution set out at the beginning of its brief

4 foreshadowed what we regard as a less-than-faithful adherence to both the

5 letter and the drafting history of the 1948 genocide convention.

6 And to support our argument, I'd like to turn now to the relevant

7 analysis of the revisions of the convention leading up to the adoption of

8 the final text of the convention. Prior to the final text, there were

9 two drafts: The secretariat draft, the first draft, was prepared by the

10 so-called experts, people like Raphael Lempkin, who coined the term

11 "genocide" and who reportedly was the most energetic and zealous of those

12 advocating the adoption of the genocide convention. The secretariat

13 draft was then considered by the ad hoc committee, which was composed of

14 the official representatives from several countries, including the United

15 States, Union of Soviet Socialist Republics, Lebanon, China, France, and

16 Venezuela. The work of the ad-hoc committee, after full discussion and

17 debate evolved into the final draft of the convention. For the Appeal

18 Chamber's information, the three principal drafts of the convention are

19 set forth in Part E to Annex 3 of our brief.

20 Significantly, Article 1 of the draft convention as originally

21 presented read as follows -this is B2, Annex B [sic], page 2 - "in this

22 convention, the word "genocide" means a criminal act -- when I say Annex

23 B, it's Annex 3, Section B2.

24 In this convention, the record "genocide" means a criminal act

25 directed against anyone of the aforesaid groups of human beings with the

Page 316

1 purpose of destroying it in whole or in part" -- and then this language

2 -- "or of preventing its preservation or development." "Or of preventing

3 its preservation or development." The draft convention went to on

4 determine the acts which would constitute acts of genocide. Some of

5 these acts consisted of what the convention labelled "destroying the

6 specific characteristics of the group" by the "forced transfer of

7 children to another group" or "forced and systematic exile of individuals

8 representing the culture of the group," and then a number of others were

9 delineating.

10 In explaining its draft, the drafters offered the following

11 comments: "The act must be deliberate" -- I'm quoting now. Again, this

12 is part C, Annex 3, parts C, page 2: "The act must be deliberate. This

13 means that its object must be the destruction of human beings." And it

14 goes on to say certain acts which may result --

15 THE INTERPRETER: Could the counsel please slow down. We are

16 really having problems in following you.

17 MR. SEPENUK: By this definition - and I'm quoting now - certain

18 acts which may result in the total or partial destruction of a group of

19 human beings are in principle excluded from the notion of genocide. A

20 number of matters are listed, including mass displacement of population.

21 So that's the first indication that forcible transfer, ethnic cleansing,

22 or what the drafters referred to as mass displacement of population

23 specifically was not included as an act of genocide. The point was again

24 made shortly thereafter in the same document, part C, 3, in our Annex 3,

25 "Mass displacement of populations from one region to another -- to

Page 317

1 another also does not constitute genocide."

2 After discussing physical genocide and biological genocide, the

3 drafters went on to discuss cultural genocide, which was also proposed as

4 a means of committing genocide. Under cultural genocide, there was a

5 prohibition relating to forced transfer of children to another group.

6 The second means of committing cultural genocide was as follows - and

7 again, this relates to the commission of experts report. This was the

8 second means, and it says this - I'm quoting part C, pages 6 and 7 -

9 "Forced and systematic exile of individuals representing the culture of a

10 group" - that's the title. "Such individuals are chiefly scholars,

11 writers, artists, teachers, and educators, ministers of religion, doctors

12 of medicine, engineers, lawyers, administrators, et cetera." It's their

13 et cetera, not mine.

14 The cultural -- it goes on: "The cultural and moral life of a

15 group is sustained by its cultured members. If these are removed, the

16 group is no more than an amorphous and defenceless mass."

17 The report went on to say, and I quote, "Professor Lempkin

18 expressed for the following wording, 'systematic elimination of the

19 individuals representing the culture of the group by acts of violence or

20 infringement of personal liberty.'" This draft convention was then

21 submitted to the ad hoc committee on genocide. And the ad hoc committee

22 report -- Annex 3, part D, 4 -- The committee stated "That it resolved

23 not to take as a basis any of the drafting before it; namely, the

24 secretariat draft, the draft by the United States of America, and the

25 French draft, but to take them into account in its work. Specifically

Page 318

1 stating they were going to take into account the secretary draft.

2 Significantly, after considering the draft conventions submitted by the

3 experts, the ad hoc committee, while affirming the methods of committing

4 physical and biological genocide further limited the manner in which

5 cultural genocide could be committed.

6 The convention draft, as the Chamber will recall, made genocidal

7 the forced and systematic exile of individuals representing the culture

8 of the group. That specific provision, that provision so relied upon,

9 and that notion so relied upon by the commission of experts that somehow

10 the destruction of leadership, the destruction of a qualitative portion

11 of a group can constitute genocide, that was specifically eliminated from

12 the ad hoc committee draft.

13 THE INTERPRETER: The interpreters have to intervene once again.

14 We are so sorry, but we don't have the text that is being read. And two

15 booths are working into French and into B/C/S.

16 MR. SEPENUK: It's my --

17 JUDGE MERON: Could I ask the counsel how long he's planning to

18 continue now.

19 MR. SEPENUK: I would say at least another -- I would say close

20 to -- maybe 20 minutes -- 20 to 30 -- 20 minutes.

21 [Appeals Chamber and legal officer confer]

22 MR. SEPENUK: I may be as long as a half an hour, Your Honour.

23 JUDGE MERON: Could I ask, please, the interpreters, whether they

24 would have enough strength, stamina, et cetera, to continue until 4.20

25 now. I can't hear you, the interpreters.

Page 319

1 THE INTERPRETER: The interpreters are very tired because of the

2 speed.

3 JUDGE MERON: Mr. Sepenuk, let's, given the speed and the

4 exhaustion of the interpreters, I suggest that you continue until 4.15

5 and then you will continue tomorrow.

6 MR. SEPENUK: Yes. And I again -- once again apologise. Believe

7 it or not, Your Honour, I was actually -- I thought I was making an

8 effort to be quite slow here. And I apologise to the interpreters. And

9 I will truly almost bore everybody to death now by how slow I will go.

10 JUDGE MERON: Well, try us.

11 So until 4.15, Mr. Sepenuk.

12 MR. SEPENUK: Thank you. Thank you very much.

13 So just to summarise very briefly, the provision about the forced

14 and systematic exile of individuals representing the culture of the group

15 was eliminated by the ad hoc committee, and also eliminated from that

16 draft was the language making genocidal acts done for the purpose of

17 "preventing the preservation or development" of a group. Surely the mass

18 displacement of the population, including the expulsion of leaders of the

19 community, relate not to physical or biological destruction but, rather,

20 to "preventing the preservation or development of a group," a criterion

21 which was specifically rejected by the committee.

22 The final text of the convention, which Article 4 as adopted

23 verbatim, eliminated all references to cultural genocide but added to the

24 definition of genocide the following language: "E, forcibly transferring

25 children of the group to another group." And that is indeed in the

Page 320

1 genocide statute of the Tribunal.

2 The Appeals Chamber will recall that in the initial draft of the

3 convention prepared by Professor Lempkin and his colleagues the forced

4 transfer of children to another group was delineated as a means of

5 committing cultural genocide, though virtually every other provision set

6 forth as a means of cultural genocide was eliminated, either by the ad

7 hoc committee or in the final draft the forced transfer of children to

8 another group was added as the fifth and final act by which a genocidal

9 intent could be determined. This is the only definition contained in the

10 Statute which concerns the displacement of human beings as an act of

11 genocide. But, of course, the provision is very specific. It relates

12 only to children and obviously is designed to cover those acts where

13 children are permanently transferred from one group to another, resulting

14 in the displaced child losing his or her identity and culture. Clearly,

15 by specifically limiting the acts of transfer or expulsion by which a

16 genocidal intent can be inferred, the convention further expressed its

17 intent that no other form of displacement should be considered as an act

18 of genocide.

19 I should add that this interpretation is further confirmed by the

20 judgement of 31 July 2003 in the Stakic case. The Stakic decision noted

21 the fact that the convention rejected a proposal by Syria to include:

22 "Imposing measures intended to oblige members of a group to abandon their

23 homes in order to escape the threat of subsequent ill-treatment," as a

24 subsequent act of genocide. We've included the debate on that point in

25 Section F of Annex 3.

Page 321

1 The Trial Court in Stakic rejected the Prosecution's argument

2 that genocide had been committed in that case. In so holding, the Trial

3 Chamber, after noting that cultural genocide, as distinction from

4 physical and biological genocide, was specifically excluded from the

5 genocide convention, also called attention to the comments of the

6 International Law Commission that the definition of genocide -- that in

7 the definition of genocide "the word 'destruction' must be taken only in

8 its material sense, its physical or biological sense." The Stakic Trial

9 Chamber went on to hold that "It does not suffice to deport a group or

10 part of a group. A clear distinction must be drawn between physical

11 destruction and mere disillusion of a group. The expulsion of a group or

12 part of a group does not in itself suffice for genocide."

13 Unlike the Trial Chamber in Stakic, and also contrary to the

14 holding of the Trial Chamber in Sikirica, the Trial Chamber in Krstic

15 held that the transfer of 25.000 women, children, elderly men from

16 Srebrenica should be considered as an element of genocidal intent when

17 coupled with the killing of the 7500 Bosnian Muslim men. As I hope we've

18 shown, there's nothing in the genocide statute itself or in its drafting

19 history or in the case law of the Yugoslavia or Rwanda Tribunals which

20 support that finding of the Trial Chamber.

21 The Trial Chamber's holding, as we've noted, is based on this

22 1994 final report of the commission of experts. It is this heavy

23 reliance of the Trial Chamber on this report which we submit is perhaps

24 the major error committed by both the Trial Chamber and the Prosecution,

25 who essentially provided the information to the Trial Chamber. That's --

Page 322

1 and we regard it as really the major error committed by the Trial Chamber

2 in this case. And we -- we're asking the Appeals Chamber to overrule

3 this finding. And I believe it's necessary to set forth for the Appeals

4 Chamber -- I want to give some history now of the 1994 commission of

5 experts, how it came to -- how it was created, why it was created,

6 because I don't think that the findings of the report of the commission

7 of experts can be appreciated without some brief history of the

8 recitation -- brief recitation of the history of this entity. Because as

9 we'll show, the commission was established to gather evidence of

10 violations of international humanitarian law, not to propose legal

11 principles relating to genocide or other violations of international

12 humanitarian law.

13 Now, that history is largely set forth in Part H to Annex 3 of

14 our appeal brief in a letter of 27 May 1994 from the Secretary-General to

15 the president of the Security Council. In very brief summary, by

16 Resolution of 6 October 1992, the United Nations Security Council

17 requested the Secretary-General to establish a commission of experts to

18 examine and analyse information gathered with a view of providing the

19 Secretary-General with its conclusions on evidence of grave breaches of

20 the Geneva Conventions and other violations of international humanitarian

21 law committed in the territory of the former Yugoslavia. A five-member

22 commission was appointed, chaired first by Professor Fritz Kalshoven, and

23 following Professor Kalshoven's resignation, by Professor Serif

24 Bassiouni.

25 JUDGE MERON: I think we have reached the time limit that --

Page 323

1 which we contracted with the interpreters. It would be fair to honour

2 our commitment to them. They have been working so hard today. So I must

3 ask you, Mr. Sepenuk -- I know how difficult it is to interrupt an

4 argument midstream, but you will have to bear with us and continue

5 tomorrow.

6 MR. SEPENUK: Thank you, Your Honour.

7 And I again apologise to the -- to the interpreters. I will

8 really make a very, very strong effort to slow down. I do apologise for

9 that.

10 JUDGE MERON: Thank you.

11 The Court will now rise, and we will resume at 9.30 tomorrow

12 morning.

13 --- Whereupon the hearing adjourned at 4.16 p.m.