Tribunal Criminal Tribunal for the Former Yugoslavia

Page 74

1 Monday, 5 June 2000

2 Appeal Proceedings - Submissions

3 [Open session]

4 [The appellants entered court]

5 --- Upon commencing at 10.05 a.m.

6 JUDGE HUNT: Call the case, please.

7 THE REGISTRAR: This is the Celebici appeal,

8 case number IT-96-21-A.

9 JUDGE HUNT: Appearances, please.

10 Prosecution.

11 MR. YAPA: May it please Your Honours, I'm

12 Upawansa Yapa, appearing for the Prosecution, with

13 Mr. William Fenrick, Mr. Christopher Staker, Mr. Norman

14 Farrell, and Mr. Roeland Bos.

15 JUDGE HUNT: For Mr. Delalic.

16 MR. ACKERMAN: Good morning, Your Honours.

17 I'm John Ackerman. I appear on behalf of Mr. Zejnil

18 Delalic, along with my co-counsel from Sarajevo, Edina

19 Residovic.

20 JUDGE HUNT: Is your client here?

21 MR. ACKERMAN: No he's not, Your Honour.

22 JUDGE HUNT: Thank you.

23 Mr. Mucic.

24 MR. KUZMANOVIC: Good morning, Your Honours.

25 Appearing on behalf of Mr. Mucic are Tom Kuzmanovic and

Page 75

1 Howard Morrison.

2 JUDGE HUNT: Thank you.

3 Mr. Delic.

4 MR. KARABDIC: [Interpretation] Good morning,

5 Your Honours. I'm Salih Karabdic, attorney from

6 Sarajevo, representing Mr. Delic along with Tom Moran

7 from Houston, representing Hazim Delic.

8 JUDGE HUNT: Thank you.

9 And for Mr. Landzo.

10 MS. SINATRA: Good morning, Your Honours.

11 I'm Cynthia Sinatra, and along with me is Professor

12 Peter Murphy, representing Esad Landzo.

13 JUDGE HUNT: Thank you. I propose to ask

14 each of the three appellants who are here whether they

15 can hear the proceedings in a language they

16 understand.

17 Mr. Mucic?

18 THE APPELLANT MUCIC: [Interpretation] Yes.

19 JUDGE MAY: Mr. Delic?

20 THE APPELLANT DELALIC: [Interpretation] Yes.

21 JUDGE HUNT: And Mr. Landzo?

22 THE APPELLANT LANDZO: [Interpretation] Yes.

23 JUDGE HUNT: I don't propose to ask you that

24 each day, but if you have any problem in hearing,

25 please don't hesitate to let us know.

Page 76

1 JUDGE BENNOUNA: Mr. President, we have some

2 problems with the French translation.

3 JUDGE HUNT: Would you check that, please.

4 Yes, Mr. Yapa.

5 MR. YAPA: Your Honours, before the arguments

6 commence, may Your Honours be pleased to give me

7 permission to mention three matters. First is in

8 respect of the request that Your Honour made at the

9 last Status Conference about the confidentiality of any

10 documents, any material in the Prosecution response

11 brief, and we have already informed that there aren't

12 any documents or any material that we wish to have

13 marked confidential or protected in the response brief,

14 and we have indicated that the response brief could be

15 made a public document.

16 The second matter, Your Honours, is we have

17 already handed over an outline of the argument that we

18 propose to present in the course of the proceedings.

19 May I be permitted to hand over copies of the outline.

20 It is only a bare outline, but we feel that it may

21 assist my learned friends and also Your Honours, with

22 great respect, in following the argument we propose to

23 present.

24 JUDGE HUNT: This represents only some sort

25 of summary of the material you've already filed.

Page 77

1 MR. YAPA: It is. It may be termed a summary

2 of the summary, but we have given the order of argument

3 and made reference to the pages of the brief where the

4 arguments are taken up.

5 JUDGE HUNT: Thank you.

6 MR. YAPA: The third matter, Your Honour, is

7 in respect of an oral motion that we intend to make

8 before Your Honours in regard to certain confidential

9 documents which we propose to utilise maybe in the

10 course of the proceedings or in the future.

11 The presentation will be made by Mr. Norman

12 Farrell.

13 JUDGE HUNT: Thank you.

14 MR. FARRELL: Good morning, Your Honours.

15 JUDGE HUNT: Mr. Farrell, the motion or the

16 documents we've had so far have all been filed on a

17 confidential basis. What is the basis of the need for

18 confidentiality?

19 MR. FARRELL: Thank you very much, Your

20 Honour. First of all, we've reviewed the documents and

21 the documents don't contain any reference to any

22 confidential witnesses that were made confidential

23 witnesses during the trial, so that certainly isn't a

24 concern.

25 Secondly, one of the reasons is the documents

Page 78

1 have not been filed with the Court. Obviously, that

2 doesn't preclude their use as public documents, but it

3 was just out of an abundance of caution, in light of

4 the fact there are certain allegations that will made

5 in a tentative form or in the preliminary form in light

6 of the fact that the documents haven't been proved.

7 The authenticity of the signatures haven't been

8 proved. Of course, that will be something if we're

9 successful, and file the documents will be done at

10 trial.

11 So it's the simple fact that there are

12 allegations that will be made as to their relevance,

13 and as the documents have not been filed as matters

14 before this Court, and as they contain allegations

15 which relate to the accused, more out of an abundance

16 of caution for the accused than the Prosecution, we

17 tender them originally as confidential.

18 In terms of their actual content, Your

19 Honour, there's nothing in there that the Prosecution

20 is concerned about per se.

21 JUDGE HUNT: Allegations are made every day

22 in courts. It doesn't mean they've been proven.

23 MR. FARRELL: That's fair enough, but maybe

24 the difference is that we haven't even made a decision,

25 to be frank, yet whether we're proceeding with filing

Page 79

1 the documents. So until the documents are before you

2 on an actual motion for them being tendered before the

3 Court, that was the only distinction that the

4 Prosecution made, though I accept your position.

5 JUDGE HUNT: It's very difficult for us to

6 deal with anything if you haven't made up your mind

7 yet, Mr. Farrell.

8 MR. FARRELL: Well, with respect, part of the

9 difficulty in making up our mind, Your Honour, is

10 actually assessing the value and the worth of the

11 documents, and that's the very reason why we bring the

12 motion. Understandably, the previous motion for an

13 adjournment of the oral hearing was denied,

14 particularly on the basis that there wasn't a

15 determination of whether the documents had any

16 relevance to the issues before the appellant Chamber.

17 As a result, with this oral motion we've

18 filed with the Court, as you're aware, Your Honour, and

19 with the Defence counsel, the documents, five documents

20 in translation, which I'm intending to, with the

21 Court's indulgence, to make submissions on the

22 relevance of these documents, simply for the purpose of

23 requesting that the proceedings not be closed at the

24 end of the oral hearing, at the end of this week, and

25 that if the Court grants it, that the Court permit,

Page 80

1 within a reasonable period of time, the filing of

2 written submissions on the documents solely for the

3 purpose of determining their admissibility under Rule

4 115. And if they are admissible under Rule 115 and

5 they could have affected the verdict, that they then

6 are considered by the Court for the purposes of

7 remitting the matter back to the Trial Chamber.

8 Essentially the standard application for fresh

9 evidence, or new additional evidence under Rule 115,

10 Your Honour.

11 JUDGE HUNT: Well, is the only basis upon

12 which you're addressing us, upon which you're

13 addressing us at the moment, is that you want the

14 matter kept open; you're not going to argue that they

15 should be admitted as fresh evidence or that they

16 should be taken into account, but you want to be able

17 to argue at some subsequent stage that we should take

18 them into account on one basis or the other?

19 MR. FARRELL: That's basically the summary of

20 it, yes.

21 JUDGE HUNT: There is, of course, a third

22 situation you may like to consider: that they be

23 relevant, if they are relevant, only to a

24 reconsideration of the evidence rather than as a fresh

25 evidence point. If a matter is being reheard, as it

Page 81

1 were, in the Appeals Chamber, as I understand it, it

2 would be heard upon the current state of the material

3 available.

4 MR. FARRELL: I'm sorry, Your Honour. Maybe

5 I'm --

6 JUDGE HUNT: Well, if you fail to get them in

7 as fresh evidence --

8 MR. FARRELL: Correct.

9 JUDGE HUNT: -- and nevertheless persuade us

10 that we should reconsider this issue of command

11 responsibility about Mr. Delalic, then we would have to

12 reconsider it on the material which is presently

13 available, would we not?

14 MR. FARRELL: Yes. Absolutely. The purpose

15 of the argument this week is to demonstrate the errors

16 of law or errors of fact, and that this is a subsequent

17 argument. And in fact, if we are correct, if we do

18 file them and if they do meet the Rule 115 standard,

19 the approach would be that if it could affect the

20 verdict or demonstrate under Tadic that the verdict was

21 unsafe, then presumably the appropriate remedy would be

22 that a new trial should be ordered.

23 JUDGE HUNT: That's something which we can

24 consider at a later stage, but at this stage there is

25 nothing wrong with us proceeding with the Prosecution

Page 82

1 appeal in relation to Mr. Delalic. And all you want us

2 to do is to decide to leave your options open; is that

3 it?

4 MR. FARRELL: That would be fair enough.

5 JUDGE HUNT: Well, what would you like to say

6 in relation to that very narrow issue?

7 MR. FARRELL: Thank you very much. As I've

8 indicated, there are five documents, Your Honour, that

9 were placed before you, and I understand they've been

10 given to Defence counsel as well. They include both

11 the original version, which is the Serbo-Croat version,

12 and a translation.

13 JUDGE HUNT: We don't have the original. We

14 only have the translation.

15 MR. FARRELL: Sorry. Just one moment, Your

16 Honour. My apologies.

17 If I could seek the assistance of the usher.

18 Thank you, sir.

19 These are the complete versions of both, Your

20 Honour.

21 The reference to the documents obviously has

22 to at least meet some type of minimum threshold, the

23 threshold being that they are of significant relevance,

24 or potential relevance, in fact, to the matters before

25 you, that they relate to the issues regarding the

Page 83

1 culpability of the appellants such as there is a basis

2 for granting the adjournment. So I will take the steps

3 of going through them very briefly just to indicate the

4 relevance or the potential relevance.

5 The first document which is before you,

6 document number 37 -- I should indicate that the

7 document number, Your Honours, doesn't indicate --

8 isn't specifically defined in relation to those matters

9 that have been indexed or translated. This is a number

10 the Prosecution gave to the documents when they arrived

11 in the office.

12 Document 37 is July 18th, 1992. You'll see

13 from the original that it's a draft order, with

14 apparently handwritten corrections on it. At the end

15 of the draft order it's signed by apparently

16 Mr. Delalic, with the name written in as to Commander

17 TG-1.

18 If you look at the document itself, it's

19 dated July 18th, 1992, and the document indicates in

20 the first sentence that it's on the basis of the

21 appointment made by the Main Staff of the Bosnian armed

22 forces, then it gives the --

23 THE INTERPRETER: Could the counsel please

24 slow down when reading, for the benefit of the

25 interpreters, please.

Page 84

1 MR. FARRELL: My apologies to the

2 interpreters.

3 JUDGE HUNT: That's not the first time that

4 it's been said to you, Mr. Farrell, so please keep it

5 in mind.

6 MR. FARRELL: I'm fond that you remembered.

7 If I can begin by reviewing the document

8 again. It's dated July 18th, 1992. The document

9 reads, in the first sentence:

10 "On the basis of the appointment made by Main

11 Staff BH armed forces, number 02/349-343, from 11 July

12 1992, and the order with the force of law of BH armed

13 forces."

14 And then the next line states, in capital

15 letters: "I hereby appoint ..." And then it states,

16 "For the duties in TG-1 Konjic the following

17 persons."

18 And I'd simply ask you to note, Your Honours,

19 that the first one is an individual by the name of

20 Ceravac.

21 If you turn to the second part of the

22 translation, you'll see that about two thirds of the

23 way down, it says -- just more than half down, I'm

24 sorry, "Assistant to commander for moral education

25 Smajo Prevljak." And then three places below that, the

Page 85

1 appointment of the supervisor of the regional prison in

2 Celebici, Zdravko Mucic.

3 In the Prosecution's submissions, the

4 potential relevance, assuming that the document is

5 accepted, is first of all the date of the letter is

6 July 18th, 1992; and the letter, apparently signed by

7 Mr. Delalic, demonstrates his knowledge of an order on

8 July 11, 1992. The position of the Defence at trial

9 was that the accused at trial, Mr. Delalic, had no

10 knowledge of the order until sometime after July 27, as

11 he was carrying out operations on Mount Igman, and that

12 he didn't actually take over any responsibility until

13 July 30th in relation to the -- his role in all the

14 formations. And this was found by the Trial Judge.

15 This document, if accepted, potentially

16 demonstrates that in fact that's not the case, that

17 Mr. Delalic clearly took over as commander prior to

18 July 30th, that he is aware of his appointment, at

19 least on July 18th, and that as a result he takes

20 actions regarding the appointment.

21 The second demonstrable relevance is that in

22 the judgement and the position of the Defence of

23 Delalic at trial, as quoted in the judgement at

24 paragraph 674, is that Mr. Delalic had no knowledge as

25 to when and how Mr. Mucic became a warden of the

Page 86

1 prison. Well, with respect to that position at trial,

2 it appears it's directly contradicted by this document

3 in that if this document is accepted, it appears, on

4 the face of the document, that Mr. Delalic is actually

5 appointing Mr. Mucic as the regional prison commander

6 of Celebici, and, importantly, it's for duties in

7 Tactical Group 1 in Konjic. So not only is he

8 appointing Mr. Music; it appears, from the face of it,

9 that there is some evidence from which to conclude that

10 these are duties within the command of Tactical Group

11 1, something that the Defence has alleged and the Trial

12 Chamber has found, that there was no relation between

13 Tactical Group 1 and the prison.

14 Thirdly, I would note that there appears --

15 once again this is all on the face of the document, and

16 I appreciate that the Defence may, if they are filed,

17 refute them, but on the face of the document it says

18 that for the duties of Tactical Group 1 there's an

19 appointment of -- excuse my pronunciation -- Mr.

20 Ceravac, which is number one, assistant to the head of

21 staff for operative educational work.

22 You'll recall that in July of 1992,

23 Mr. Delalic signed some documents -- these are release

24 documents -- and that the Trial Chamber concluded that

25 he was signing these release documents on behalf of

Page 87

1 Mr. Ceravac and that Mr. Cerovac testified that though

2 he didn't have any direct control over the prison, he

3 had asked Mr. Delalic to sign on his behalf.

4 I would submit that this is clearly called

5 into question by the fact that in fact Mr. Ceravac is

6 his subordinate. He's not signing it on behalf of

7 Mr. Ceravac. The inference may be drawn from the

8 evidence that in fact Mr. Ceravac couldn't do it and,

9 as the superior to Mr. Ceravac in Tactical Group 1, he

10 took over the position.

11 These are just inferences on the face of the

12 document, I understand.

13 The last --

14 JUDGE HUNT: Have you got a paragraph

15 reference to the judgement there?

16 MR. FARRELL: For Mr. Ceravac? No, I'm

17 sorry, I will have to get it for you. If you don't

18 mind, I'll continue until I can. I'll try and find

19 that as I'm going along, Your Honour.

20 The last point to be made with respect to the

21 first document is that you will recall that the release

22 orders that were signed by Mr. Delalic, there were

23 three of them in July, and the first one was on July

24 17th. The second one, as I recall, for Dr. Grubac, was

25 the 22nd of July, and the third one for Witness P,

Page 88

1 you'll recall, was on the 22nd of July as well.

2 The Trial Chamber finds that Mr. Delalic was,

3 in fact, a coordinator during this time because he

4 didn't take over the position as Tactical Group 1

5 commander until after July 27th, presumably the 30th of

6 July. That being the case, they accept that he was

7 signing for the head of investigations for these

8 release orders and, therefore, had no authority

9 himself.

10 If you look at this draft order, it's dated

11 July the 18th. This is around the same time as the

12 first release order was signed and certainly prior to

13 the signing of the two release orders on July 22nd. If

14 this document is accepted, Mr. Delalic was not the

15 coordinator during this time, and he was not a civilian

16 coordinator who had no authority, and he was not simply

17 signing on someone else's behalf, although I think it

18 was the head of the investigations.

19 The inference can be drawn from this that on

20 July 22nd when Dr. Grubac and Witness P were released,

21 their release orders were signed by Mr. Delalic as

22 his -- in his capacity as commander and as the

23 commander, he has a supervisory role over the Celebici

24 prison. That being the case, the release orders were

25 not signed as a coordinator on behalf of someone else

Page 89

1 that indicate no evidence of command responsibility.

2 Those are the references I wanted to make to

3 the first document.

4 In relation to your question about the

5 relation to Mr. Ceravac, I'm just going to attempt

6 to -- it appears to be at paragraph 685.

7 JUDGE HUNT: Thank you.

8 MR. FARRELL: The second document Your

9 Honours, is the one numbered 120, dated the 30th of

10 October, 1992.

11 This is apparently, a document from Smajo

12 Prevljak, who is the deputy commander for morale. It's

13 from October the 30th, 1992, and if the previous

14 document is accepted, you'll be able to draw the

15 inference, the trier of fact will, I'm sorry, that

16 Mr. Prevljak, in fact was subordinate to Mr. Delalic

17 under the appointment for the duties of Tactical Group

18 1 Konjic.

19 The letter is to the Konjic War Presidency,

20 and it's with regard to the act of the commander of

21 Tactical Group 1 from a particular date, and it's a

22 report to the War Presidency. The commander of

23 Tactical Group 1, it's clearly submitted, is

24 Mr. Delalic in October of 1992 as found by the Trial

25 Chamber.

Page 90

1 The singular importance of this document is

2 found, in the Prosecution's submission, at the top of

3 the second page of the translation. The document is

4 with respect to the military investigation commission.

5 This is the commission that was to look into the

6 prisoners detained at Celebici prison for their

7 classification and potential release.

8 At the top of page 2 of the document, it says

9 the investigation of the imprisoned persons in the

10 prison of Celebici was conducted by an investigation

11 commission that was composed of experts which was

12 formed by Mr. Delalic, and the inference to be drawn

13 is, therefore, he did have control, at least in the

14 formation of this commission.

15 You will recall in the evidence, as found by

16 the Trial Chamber, that at one point in time

17 Mr. Delalic -- I think it was on June the 2nd -- was at

18 a meeting in the administration building of the

19 Celebici prison camp, and this is at paragraph 678 of

20 the judgement.

21 The witness was Witness D, and he indicated

22 that Mr. Delalic and most members of the military

23 investigative commission met on the 1st of June, 1992

24 at the Celebici prison camp.

25 Mr. Delalic, according to the witness and as

Page 91

1 is stated by the Trial Chamber, "Appeared to be

2 directing the proceedings. He read out some kind of

3 order which had arrived by fax, which Mr. Delalic

4 explained to them as indicating how they were to

5 conduct the interrogation of detainees based on a list

6 of categories."

7 The Trial Chamber recognises this fact and

8 that the categories of detainees were read out from the

9 facts. This is in paragraph 681. The Trial Chamber

10 then is cautious to attribute the creation of the

11 categories, this is the categories of prisoners who are

12 to be released, to Mr. Delalic. And they further find

13 that there was no evidence that Mr. Delalic had any

14 position of authority or superiority over any of the

15 members in the investigative commission and that

16 Mr. Delalic could not exercise any authority over the

17 prison camp at Celebici, its commanders or its

18 personnel. This is at paragraph 682.

19 It appears, from the face of this document,

20 that at a minimum, he had some authority over the

21 investigation commission to the extent that, in fact,

22 the investigation commission into the prison itself was

23 formed by Mr. Delalic.

24 I'll now refer to the third document, number

25 137. This is a document which is dated the 14th of

Page 92

1 November, 1992.

2 You will recall that the evidence appears to

3 be that by mid-November, sometime around November 17th

4 or thereafter, Mr. Delalic is no longer acting as

5 commander of TG-1. It's not clear, but it's in the mid

6 of November.

7 There was, of course, the document which was

8 excluded, which had some -- I'll deal with it when I

9 come to the documents that are excluded on the face of

10 the matter before the Trial Chamber.

11 This is a letter to Mr. Delalic as the

12 commander of TG-1. It's from the chief of the prison

13 guards in the Musala prison. The Musala prison, as

14 you're aware, is not the Celebici prison. It's a

15 sports hall where -- essentially the sports hall where

16 people were detained, as I understand it.

17 This is a complaint made directly to

18 Mr. Delalic, as the commander of Tactical Group 1, with

19 respect to Mr. Hazim Delic. It seems a little odd that

20 if there was no relationship between the two, that the

21 platoon commander and chief of prison guards in one

22 prison is complaining about the conduct of Mr. Delic

23 directly to a tactical group commander who allegedly

24 has no control authority and involvement whatsoever in

25 relation to people who work in the prison.

Page 93

1 The complaint is not directly with respect to

2 the Celebici prison camp but with respect to the acts,

3 in other words, the conduct of Mr. Delic. And the

4 complaint is apparently, on the face of this document,

5 to his commander in relation to his conduct.

6 Therefore, the inference, it is submitted, can be

7 easily drawn that he thought that Mr. Delic is the

8 subordinate. Why else would another commander be

9 submitting a report on the conduct of someone who has

10 no relationship and is not a subordinate?

11 The document submitted indicates that Delalic

12 did have authority over Mr. Delic. It also, it is

13 submitted, indicates that Mr. Delic is, therefore, part

14 of Tactical Group 1, which is consistent with the first

15 document that I referred to which showed that the

16 Celebici prison fell under the duties of Tactical

17 Group 1.

18 I would note that on the first page of

19 translation, at the end of the page, the last full

20 paragraph starts with the words, "He was also regularly

21 boasting". That "he" is Mr. Delic, and he is boasting

22 to the prisoners, it appears in the Musala, when he

23 entered the Musala prison, and it states that he, that

24 is Mr. Delic -- I'm sorry, Mr. Delic I'm talking

25 about: "Mr. Delic was also regularly boasting to the

Page 94

1 prisoners that he," Mr. Delic, "could release any

2 prisoner he wanted while I," that's the commander of --

3 the chief of prison staff, "was not able to do that

4 because he said he had the stamp of TG-1. Thus he

5 released from the Celebici prison the prisoner Ratko

6 Vujicic who had been his colleague at work. MUP, the

7 Ministry of the Interior, will take him to the prison

8 again today."

9 it's submitted that the reference here is that

10 TG-1 obviously has authority over the prison if

11 Mr. Delic is using its stamp to personally remove

12 people from the prison who are his former colleagues.

13 On the second page, in relation to a comment

14 by the chief of the prison guards about the visit of

15 the International Committee of the Red Cross, he

16 indicates that there was a complaint that he, the

17 author of this document, did not allow members of the

18 International Committee of the Red Cross to visit.

19 What he states in the letter essentially is

20 that they could visit but he was hesitant to actually

21 allow him to interview the detainees without witness,

22 which is a condition of ICRC visits to prisoners of

23 war.

24 The explanation for that, not permitting them

25 to interview without witness, is given and it states

Page 95

1 that he was requesting the clearance of the supervisor

2 of the prison, Mr. Mucic, or another person of Tactical

3 Group 1. It appears he's seeking clearance from people

4 who are his superiors which go up the chain to Tactical

5 Group 1.

6 Lastly, he, in the second last paragraph, the

7 last line and the last paragraph, he asks Mr. Delalic,

8 as the commander of Tactical Group 1, to prohibit

9 Mr. Delic's entrance to the premises of Musala prison

10 and also asks Mr. Delalic, in the very last sentence,

11 to review the list of released prisoners as well as the

12 whole work of the administration of Celebici prison.

13 Once again, it seems a little odd, in light

14 of the Trial Chamber's judgement, that a member of

15 another prison, who is the Chief of Staff and who is

16 involved in the detention of prisoners in the region at

17 the time, is indicating that a tactical group

18 commander, who allegedly has nothing to do with the

19 prison, actually take control over one of the

20 subordinates of the prison, give orders as to who can

21 enter the prison, grant clearance as to whether an

22 international organisation can speak with detainees,

23 prohibit Mr. Delic from entering the prison by his own

24 order, and to review the release -- list of released

25 prisoners and the administration of Celebici prison.

Page 96

1 The next document is document 62. This is

2 dated August 21, 1992. It's signed by Pavo, so the

3 inference that would have to be drawn is that Pavo is

4 the -- is Mr. Mucic and the commander of the prison.

5 The first sentence states: "In respect of

6 the detention of Petko Grubac in the Celebici barracks,

7 the director of the barracks declares the following."

8 It's submitted that the inference is that

9 Mr. Mucic, Pavo, is writing a report with respect to

10 the detention and subsequent release of a detainee at

11 Celebici prison. This detainee is Dr. Grubac, which we

12 know his testimony is referred to by the Trial Chamber

13 and he's one of the persons who a release order, as I

14 recall, on July 22nd, is signed by Mr. Delalic.

15 The significance, it is submitted, is that

16 the report -- there's a report and an order. The order

17 doesn't relate to the prison, it relates to persons who

18 appear to have occupied Mr. Grubac's apartment, but the

19 significance, from the Prosecution's perspective, is

20 the report itself on the release and -- the detention

21 and subsequent release of a detainee is sent to

22 commander of Tactical Group 1. If you look at the

23 copies to be -- on the second page of the translation,

24 Your Honours, it says, "To be delivered to supervisor

25 of the prison," presumably this is Mucic copying

Page 97

1 himself, the commander of Tactical Group 1, the person

2 detained himself; and the municipal secretariat.

3 It's important to note that the only military

4 body and the only body of authority addressed here is

5 to Tactical Group 1. It's not addressed to the Konjic

6 Territorial Defences or the MUP, the Ministry of the

7 Interior, the police. And clearly, in the

8 Prosecution's submission, there is an inference that

9 could be drawn, if this document is accepted,

10 consistent with the others that the reporting mechanism

11 and the command structure goes to Tactical Group 1.

12 The last document which I refer to and which

13 is before you is that dated August the 7th, 1992. This

14 is not in direct relation to the prison itself but what

15 it demonstrates is, in the Prosecution's submission,

16 the link between Tactical Group 1 and the Konjic

17 municipal staff of the Bosnian armed forces. This is a

18 warming, in relation to a previous order, to the Konjic

19 municipal staff of the armed forces from Mr. Delalic.

20 Now, the Trial Chamber, as we know,

21 distinguished between the role of Tactical Group 1 from

22 the activities of the territorial forces or armed

23 forces in Konjic. This appears to be on its face an

24 order by Mr. Delalic to the municipal staff of the

25 armed forces in Konjic, and, therefore, he is

Page 98

1 subordinating them to himself as commander of Tactical

2 Group 1, and this goes to the role he plays in the

3 region consistent with, it is submitted, the first

4 document.

5 Your Honours, I apologise for taking a little

6 bit of your time, but this is the submitted potential

7 relevance of the documents and the basis upon which the

8 Prosecution seeks the -- at least the opportunity to

9 fully review the documents. If the Prosecution, after

10 reviewing all the documents, is of the view that it

11 would have rendered, at least in the Prosecution's

12 submission, the conviction unsafe, which appears to be

13 the requirement under Rule 115 of the Tadic decision,

14 then the remedy requested is that the proceedings not

15 be closed, that there be a time period for the filing

16 of this, that if the Prosecution does not intend to

17 file a Rule 115 application, that it simply file a

18 notice with the Court indicating such and at that point

19 in time, if it does not, the proceedings will be

20 closed. Thank you.

21 JUDGE HUNT: Is your application restricted

22 to these five documents or is somebody beavering his

23 way through the documents to see if there's anything

24 else?

25 MR. FARRELL: Well, I hope they are.

Page 99

1 JUDGE HUNT: So there may be other documents

2 as well.

3 MR. FARRELL: These are simply a sample to

4 try and address your concerns that there was nothing of

5 relevance put before you on the previous motion, yes.

6 Thank you.

7 JUDGE HUNT: I see.

8 Well, Mr. Ackerman, we certainly don't expect

9 you to answer the point made about the relevance unless

10 you can demonstrate that everything the Prosecution has

11 said is wrong. All I think we need to determine at

12 this stage is whether we permit the Prosecution to keep

13 its options open. What would you like to say about

14 that.

15 MR. ACKERMAN: Your Honour, with regard to

16 that specific question, the Rules permit the Prosecutor

17 to keep their options open. We're in a kind of a

18 procedural limbo here because if they wanted to bring

19 new material to the attention of the Appeals Chamber,

20 the Rules say that should have happened at least

21 15 days prior to the date set for hearing the appeal.

22 The other option that the Prosecution and the

23 Defence have is that within one year after the

24 judgement on this appeal to apply for a review.

25 So it seems one of those two options is what

Page 100

1 is open to the Prosecutor or any of us with regard to

2 this matter.

3 I have just seen these documents for the

4 first time this morning just as you have, so I'm not in

5 any kind of position to deal with them at all. We

6 might want, later on in this proceeding, to make a very

7 short submission similar to what the Prosecution has

8 made.

9 It's very clear that if these documents are

10 going to be considered at any stage of these

11 proceedings, a great deal more than just submission of

12 the documents is required because there's serious

13 question, at least in my mind, regarding their

14 authenticity, who authored them. One of them has no

15 signature at all. So there's a great deal of

16 additional information that would be necessary before

17 their content and their alleged import could be

18 considered by this Chamber or any other Chamber.

19 What I would prefer to do at this point, Your

20 Honour, is leave the matter as it stands, with the

21 possibility that we would request some time later on in

22 these proceedings for just a few moments to address the

23 Chamber regarding these matters before we depart for

24 other places. But I think it seems to me that the

25 proper way to proceed at this point is to -- for the

Page 101

1 Prosecutor to simply go on with their business

2 regarding these documents, and if after the judgement

3 has been entered on this appeal they determine that

4 there's a basis for an application for review based on

5 these documents, then let them file that.

6 It's clear that whatever's done with these

7 documents, it's going to require the taking of evidence

8 from witnesses regarding their authenticity, whether or

9 not they were actually delivered, signed, things of

10 that nature. One of them has no signature, I've

11 noticed. So ...

12 JUDGE HUNT: Well, Mr. Ackerman, if we

13 deferred any decision on it, it would mean after the

14 end of the argument by the Prosecution on the command

15 responsibility issues, they would simply say, "We leave

16 our case open." It's at that stage I see the issue

17 arising.

18 If you have no objection to them doing that

19 so that you have the opportunity, perhaps tomorrow or

20 the next day, to address us on keeping it open

21 throughout and you have no objection to them not

22 closing their argument at this stage, then we need not

23 decide it at this stage.

24 MR. ACKERMAN: I'm not absolutely certain

25 about my position at this point, but I think my

Page 102

1 position is this, Your Honour: That having not made

2 the application 15 days before the date set for oral

3 argument, that the Prosecution's remedy at this point

4 is post-judgement application for review, so that we

5 should simply close the matter at this point, the

6 arguments be heard, that the Chamber make its ruling,

7 whatever that is, file its judgement, announce its

8 judgement, and then if the Prosecution, within one year

9 after that, determines that there are documents that

10 justify review, then bring it up in the review

11 procedures.

12 JUDGE HUNT: I'm not altogether certain that

13 you are correct on that. This would be a review, I

14 would have thought, of the Trial Chamber's decision

15 rather than of our decision.

16 MR. ACKERMAN: The Rule indicated it can be

17 either of a Trial Chamber or an Appeals Chamber

18 decision.

19 JUDGE HUNT: Well, we won't argue it now, but

20 there may be a problem from the Prosecution's point of

21 view.

22 Well, then, you're objecting that if at the

23 end of the argument today they say, "We want to leave

24 it open," you object to that.

25 MR. ACKERMAN: Yes, I would object to that.

Page 103

1 JUDGE HUNT: You had said that you wanted

2 some time to make some further submissions.

3 MR. ACKERMAN: I think that's what we would

4 like to do. As I stand here right now, I would object

5 to that, but we have just seen these. I haven't had a

6 chance to consult.

7 JUDGE HUNT: I understand, and so have we

8 just seen them perhaps a quarter of an hour before you

9 did, but at the end of the Prosecution argument the

10 issue arises. Are they entitled to say at that

11 stage, "We still want you to consider allowing these

12 documents in but we don't press for a decision on that

13 at this stage."

14 Now, if you object to that at that stage,

15 we're going to have to say whether we permit them to

16 keep their options open at least until sometime towards

17 the end of the hearing or shortly after it.

18 I understand what you say about the 15-day

19 rule. That's something that can be extended and the

20 Rules permit that if explained. I'm not suggesting one

21 way or the other which way the Appeals Chamber would

22 decide it, but they asked for an adjournment, and that

23 was refused on the basis that we thought they could

24 proceed with their appeal.

25 Now, if you still object at the close of

Page 104

1 their argument, we will have to decide at that stage

2 whether we permit them to keep their options open; not

3 to admit the documents, but just to keep their options

4 open. If you want extra time to consider that

5 particular application, to keep their options open, for

6 myself, I'd be happy to give it to you. But we still

7 have to make a decision one way or the other, even if

8 to defer the decision at the end of the Prosecution's

9 argument on these grounds of appeal.

10 MR. ACKERMAN: I understand that, and what I

11 would like to do is state my position on that at some

12 later stage, probably today.

13 JUDGE HUNT: I'm hoping that the Prosecution

14 will have finished their argument on command

15 responsibility, surely before the end of today.

16 MR. ACKERMAN: I would think so. I would

17 suspect there would be a break at some point. I just

18 need to consult with Ms. Residovic a bit.

19 JUDGE HUNT: That's perfectly reasonable, as

20 long as you understand that we have to make a decision

21 one way or the other at the conclusion of the

22 Prosecution case on these grounds of appeal.

23 MR. ACKERMAN: I understand.

24 JUDGE BENNOUNA: [Interpretation] I would like

25 to add something. I would like to say something to

Page 105

1 Mr. Ackerman.

2 If I understand rightly, you say that since

3 the time allowed had not been respected, the 15 days,

4 then the Prosecutor would have to ask for a review of

5 the judgement because of new facts being presented.

6 The problem is that in the situation we have

7 here, these facts come up after the judgement has been

8 given, whereas here we are at the beginning of the

9 hearing for oral applications. We are not here talking

10 about the review of a judgement that has been given, a

11 judgement that is definite, and where you have new

12 facts arising after the judgement, because the new

13 facts we have now have arisen before the judgement has

14 been given. So I would like you to have this in mind

15 when you speak later on. I'm not asking you to speak

16 about that right now.

17 JUDGE HUNT: Well, Mr. Ackerman, clearly

18 there will be a break during the course of the argument

19 on the Prosecution's treatment of the command

20 responsibility grounds. I think we are entitled to ask

21 you at the end of that break what attitude you're going

22 to take to keeping their options open.

23 MR. ACKERMAN: And I will tell you at that

24 point.

25 JUDGE HUNT: Thank you very much.

Page 106

1 Well, now, Mr. Yapa, who is dealing with the

2 command responsibility?

3 I'm sorry. Yes, Mr. Morrison.

4 MR. MORRISON: If it please Your Honour, you

5 will see from those documents that they are also

6 pertinent to the case of Pavo Mucic. Now, I appreciate

7 that the position of Mucic is very different from the

8 others in this case, but those documents cause us very

9 considerable concern at this stage in the proceedings,

10 and it's pertinent to the matters just raised a moment

11 ago by your honourable and learned colleague.

12 My learned friend, Mr. Kuzmanovic has tried

13 unsuccessfully to obtain documents from Croatia before

14 now, and on the face of it some of the documents which

15 the Prosecution have are exactly the sort of documents

16 we would like to have seen, not only for the appellate

17 purposes, but they would have been very useful at

18 trial. They're fundamental as far as Mr. Mucic is

19 concerned. They go not only to the basis of his

20 conviction but to the scope of his conviction, because

21 he was only convicted upon the basis of superior

22 command responsibility in respect of his command of or

23 supervision of the Celebici prison. These documents

24 are exactly germane to that. And the knock-on effect

25 in this case is enormous, because it goes to other

Page 107

1 issues, other findings contained in the judgement, not

2 least the question of sentence.

3 For myself and for my learned friend

4 Mr. Kuzmanovic, we're very grateful for the Prosecution

5 for providing the samples of documents which they

6 have. We've seen five, three of which are extremely

7 germane, and we are very keen to explore the

8 possibility of their use, not simply as an adjunct to

9 this appeal, but as part of the body of the appeal

10 itself.

11 There are 149 other documents. We have no

12 idea at the moment what they may be. But if they are

13 of such moment to Mr. Mucic's case as three of these

14 five documents are, then the position of Mr. Mucic on

15 appeal may be fundamentally altered in two ways: first

16 in respect of what he himself can advance through

17 counsel, or potentially by the calling of witnesses

18 that we simply did not know existed until the

19 production of these documents.

20 The other thing it may do is alter the

21 Prosecution's own position as to Mr. Mucic, because

22 they've been advancing, for instance, certain dates as

23 to his supervision of the prison, and they may take a

24 different view of that when all the documents are at

25 hand. So it may be that concessions will come from the

Page 108

1 Prosecution side, and I appreciate they can't even

2 begin to consider that matter until they have seen,

3 correlated, and analysed all of those documents.

4 But let me suppose for the moment that as far

5 as providence, accuracy, and relevance of the documents

6 are concerned, that the Appeal Chamber is satisfied to

7 the extent that they become admissible in these

8 proceedings in some form or another.

9 What is the effect? Are we really going to

10 have an appeal judgement based upon the facts of a

11 trial which may be easily proved to be erroneous, upon

12 a judgement which may have been reached upon the basis

13 of a lack of information or of false information? It

14 seems to me that in those circumstances the potential

15 for a miscarriage of justice is vast.

16 Now, we didn't see these documents until this

17 morning and we had no input into the Prosecution's

18 application for an adjournment of certain parts of this

19 appeal until those documents have been analysed and

20 placed before the Court. But for Mr. Mucic,

21 Mr. Kuzmanovic and I are extremely concerned that there

22 should be any further consideration of Mr. Mucic's

23 appeal as to command responsibility and as to the

24 knock-on effect of that, whatever it may be, until

25 we've had sight of all of those documents and we're

Page 109

1 able to put the matters before the Court in a proper

2 and coherent way. As your learned colleague said, this

3 isn't a question of information coming to an appellant

4 court post-judgement; this is information which has

5 come to this Court pre-judgement, and it seems to me to

6 ignore it is to make ourselves hostages to very

7 dangerous fortune.

8 JUDGE HUNT: Is the basis of your remarks the

9 prospect that you too may be making an application for

10 these documents to be admitted as fresh evidence?

11 MR. MORRISON: It's quite possible.

12 Certainly in respect of three of those documents, we

13 would dearly have loved to have had them in our

14 possession. I wasn't involved in the trial. I didn't

15 come into this case until appellate proceedings were

16 virtually -- well, I came in just before sentencing.

17 But it would have made a very considerable difference

18 to the way that Mr. Mucic's appeal had been conducted

19 had, for instance, these documents surfaced a week

20 after the judgement. There would have been a very

21 different approach, I think both by the Prosecution and

22 by Mr. Mucic.

23 Now, I accept that I'm treading on toes in

24 all sorts of ways, and the last thing I want to do is

25 be the cause of adjournments and delays. But if I

Page 110

1 don't raise this matter now, I'm doing no service to my

2 client. There is in this case a very real potential

3 for a very real miscarriage of justice, and now is the

4 time, with respect, to address it.

5 JUDGE HUNT: May I suggest that during the

6 adjournment -- there is obviously a great deal of

7 material which we can go on with, but during the

8 adjournment you speak to the Prosecution, hopefully the

9 Prosecution will break its usual rule and talk to

10 counsel for the Defence, and find out what the

11 timetable is likely to be for them to have all the

12 documents translated so that you know what position

13 you're going to be in.

14 MR. MORRISON: Making a submission of this

15 nature before an appellate court 18 or 19 months after

16 the judgement is as attractive as rolling naked

17 downhill in a barrel of fish hooks, as somebody once

18 said to me, but it has to be made, and whatever the

19 consequences. I think, by and large, my relations with

20 the Prosecution are good enough for them to talk to me.

21 JUDGE HUNT: Well, may I suggest you do talk

22 to them so that we're in a better position to know just

23 where we're heading. And we can nevertheless go on

24 with the appeal at this stage, bearing in mind that you

25 foreshadowing an application for an adjournment of

Page 111

1 anything dealing with your client's command

2 responsibility.

3 MR. MORRISON: I'm much obliged.

4 JUDGE HUNT: Yes, Mr. Yapa. Who is dealing

5 with this particular issue?

6 MR. YAPA: If Your Honours please, the

7 argument to be taken up will be in respect of grounds

8 of appeal falling within group 1. The first matter is

9 in respect of command responsibility. That is ground 1

10 of the Prosecution's grounds of appeal. It will be

11 dealt with by Mr. William Fenrick.

12 JUDGE HUNT: Thank you. Yes, Mr. Fenrick.

13 MR. FENRICK: Your Honours, what I would

14 intend to do here over the course of approximately one

15 half hour is give you an overview of the Prosecution's

16 approach to the law of command responsibility so that

17 we would try and address a range of legal issues and at

18 the same time provide you with a complete picture of

19 the doctrine itself, as this is perhaps the first time

20 when this Chamber has addressed this range, the whole

21 spectrum of command responsibility issues.

22 JUDGE HUNT: May I just interrupt you for a

23 moment, Mr. Fenrick. In your submissions you refer to

24 the World War II cases. I know that we do have the

25 Nuremberg judgments in the library here, but I don't

Page 112

1 think we've got all of the Japanese ones. If you're

2 going to rely upon any of these, we really do need

3 copies.

4 MR. FENRICK: Your Honour, I would be

5 referring very briefly -- well, first of all, I don't

6 expect to be making a large number of case references,

7 to be quite honest.

8 JUDGE HUNT: But you've referred to them

9 generally in your submissions, and if you want us to

10 look at this sort of thing, I'm afraid we're going to

11 have to ask you to provide copies.

12 MR. FENRICK: It's our understanding

13 everything is in the book of authorities, Your Honour.

14 Now, if I may start, first of all it's the

15 position of the Prosecution that Article 7(3) of our

16 Statute is not all by itself some kind of a code. What

17 it does is incorporate the existing law relating to the

18 doctrine of command responsibility.

19 Secondly, the existing law, or the entire

20 doctrine of command responsibility is basically rooted

21 in custom or case law. If one looks, for example, at

22 the statute for the International Military Tribunal at

23 Nuremberg, or the statute which applied to the Tokyo

24 trials, or Control Counsel Law number 10, which

25 regulated a lot of the subsequent proceedings at

Page 113

1 Nuremberg, in no case is there any reference to a

2 doctrine of command responsibility. When those

3 statutory or treaty provisions refer to criminal

4 liability, essentially what they are concerned with is

5 the traditional doctrine of individual criminal

6 responsibility, referring to perpetrators and people

7 who order, incite, or aid and abet.

8 The doctrine of command responsibility, it is

9 our submission, originated essentially in an

10 application of what might be referred to as a doctrine

11 of aiding and abetting for superiors to the kinds of

12 situations which we had in the post World War II

13 period. And I think, or I submit, that we've got to

14 place a very considerable emphasis on those post World

15 War II decisions and bear in mind what they are. They

16 aren't rooted in a treaty provision, or at least not

17 rooted to a great extent.

18 Beyond the post World War II cases, what we

19 have is Additional Protocol I, which applies to

20 international conflicts, and there are two articles in

21 that Additional Protocol I: Articles 86 and 87. Those

22 two, although they have been referred to by some as

23 codifying the doctrine of command responsibility, we

24 would submit are at best a partial codification of the

25 doctrine. To a considerable extent, even to interpret

Page 114

1 Articles 86 and 87, we have to pay considerable

2 emphasis to what the customary law is outside of those

3 articles, or outside of Additional Protocol I.

4 It's the submission of the Prosecution, which

5 we would suggest is essentially uncontested, that there

6 are three essential elements for command responsibility

7 for failure to act. The first of these essential

8 elements is the existence of some form of superior

9 subordinate relationship.

10 This particular element, or the

11 interpretation of this element, is particularly

12 relevant to this case in two respects. One -- and what

13 I will be doing later is talking about each of these

14 elements in turn. But just to highlight things, in

15 connection with the superior subordinate relationship,

16 there is a question of whether or not that relationship

17 applies to instances of what might be called influence

18 -- that's particularly relevant with reference to the

19 Delalic appeal -- and also with whether or not the

20 superior subordinate relationship applies to de facto

21 in addition to de jure relationships is relevant to the

22 appeal of Mr. Mucic.

23 The second element is that the superior new

24 or had reason to know that a criminal act was about to

25 be or had been committed. The interpretation of this

Page 115

1 particular provision is, we submit, an important point

2 of law, which we have requested the Court to rule on,

3 specifically, what the meaning of "had reason to know"

4 is, but it is not directly relevant to the appeals of

5 any of the individual accused in this case.

6 The third element is that the superior failed

7 to take the necessary and reasonable measures to

8 prevent the criminal act or punish the perpetrator

9 thereof. It is our understanding that the meaning of

10 that particular provision is not in issue here, but we

11 shall nevertheless refer to it very briefly.

12 Now, if I may discuss the superior

13 subordinate relationship, the first essential element

14 that we have submitted exists, or must exist for a

15 command responsibility case.

16 Normally, in most cases, when the doctrine of

17 command responsibility applies, there is some kind of a

18 hierarchical relationship, a chain of command, between

19 the perpetrators or the units to which the perpetrators

20 belong and the person in command or the person holding

21 a position of superior authority. It is, however, the

22 submission of the Prosecution that this doctrine can

23 also apply to a wider range of categories of

24 superiors. It is our submission that the relationship

25 exists when a superior has effective control over the

Page 116

1 persons committing the underlying violations, in the

2 sense of having some kind of material ability to

3 prevent and punish. It is also certainly our

4 submission that the doctrine of command responsibility

5 can apply to both civilian and military leaders.

6 The duty to prevent or punish arises from the

7 power to control perpetrators in a particular set of

8 circumstances as well as in certain general

9 circumstances. In particular, it's our submission that

10 a direct relationship of superior and subordinate, that

11 is, a direct chain of command between the perpetrator

12 and the superior, is not necessary. The superior may

13 have responsibility for an area in which the

14 perpetrator commits an offence.

15 For example, in the High Command in the

16 Hostages cases, both of which are referred to in the

17 Trial Chamber judgement, the military commanders were

18 held responsible in some cases because they had some

19 kind of an area or zone of occupation responsibility,

20 and they were held responsible even if they did not

21 have direct command responsibility over the units which

22 were in the area and which had committed offences.

23 Somewhat similarly, the superior may exercise

24 a substantial degree of influence over the perpetrator

25 or over the entity to which the perpetrator belongs.

Page 117

1 And with reference, as substantiation for those

2 propositions, we refer to the Muto case, which is

3 referred to in the Trial Chamber judgement, and also

4 Hirota and Roechling. These cases are discussed at

5 paragraphs 355 to 363 in the Trial Chamber judgement.

6 Those cases involved people in a range of

7 different circumstances. Muto was a Japanese general

8 who was the chief of staff for General Yamashita, and

9 it was held that although Muto, or General Muto, was

10 not in a chain of command, he had, because of his

11 position as chief of staff, a substantial degree of

12 influence over what was happening in the units which

13 were subordinate to the headquarters to which he was

14 chief of staff.

15 Hirota, of course, was a Japanese foreign

16 minister, who clearly had no direct ability to --

17 certainly did not have the soldiers who were committing

18 offences subordinate to him in some kind of a chain of

19 command.

20 And Roechling involved German industrialists,

21 who once again did not have a strict hierarchical

22 relationship between the perpetrators and the

23 individuals committing the offence.

24 If I might also refer to Article 87 of

25 Additional Protocol I, which talks about the duty of

Page 118

1 military commanders, it says:

2 "The high contracting parties and parties to

3 the conflict shall require military commanders with

4 respect to members of the armed forces under their

5 command and other persons under their control to

6 prevent and, where necessary, suppress breaches."

7 Clearly, even the Additional Protocols

8 envisage something more than a strictly hierarchical

9 relationship for the imposition of command

10 responsibility.

11 As indicated in the Prosecution's appeal, in

12 our brief, paragraphs 3.22 and 3.27 to 3.53, the

13 Prosecution submits that the doctrine of superior

14 responsibility includes liability for a person who,

15 although not a superior in a direct chain of command

16 over the perpetrator, exercises sufficient control,

17 authority, or power of substantial influence, that is,

18 to have the material ability to prevent or punish the

19 commission of the crimes.

20 The Prosecution certainly does not suggest or

21 submit in any way that Article 7(3) includes any person

22 who exercises some influence in a given situation. For

23 example, one could easily envisage a situation where a

24 journalist has some knowledge of an offence that either

25 is about to be committed or has been committed, and

Page 119

1 technically, by publicising that fact, he or she may

2 have some impact on whether or not the offence is

3 committed or whether there is punishment for it. But

4 certainly a journalist, although a person of influence,

5 would not be someone who would be scooped into this

6 substantial influence aspect of command responsibility,

7 which we submit exists.

8 If we might give another example of where we

9 would not think the doctrine would apply, it would not

10 apply to, say, military commanders when you have two

11 formations side by side, one in one area, one in

12 another, and the commander of one formation becomes

13 aware of, for whatever reasons, or doesn't become aware

14 of, offences being committed by a similar level

15 formation next door. We would certainly not submit

16 that the side-by-side commander is one who would be

17 scooped up within this doctrine of command

18 responsibility. But we would submit that if there is

19 this substantial influence, which we concede is

20 something which has got to be determined essentially on

21 a case-by-case basis, if this superior does have the

22 material ability to prevent or punish, he or she should

23 be within the confines of this doctrine of command

24 responsibility as set forth in Article 7(3).

25 And as a last observation in connection with

Page 120

1 the superior subordinate relationship aspect, clearly,

2 on the basis of our case law, including, one might add,

3 the Aleksovski appeal position, a superior may be held

4 liable because he or she possesses de jure or de facto

5 authority or a combination of both. There is no

6 requirement that the authority be de jure exclusively.

7 In fact, if one just relied on de jure responsibility,

8 one could end up with ludicrous results. I believe

9 that the Queen of England, for example, would

10 technically be listed as the commander-in-chief of the

11 British Armed Forces, but one would not suggest that

12 the Queen is someone who should be held liable on the

13 basis of the doctrine of command responsibility. One

14 must look at de facto responsibility in addition to a

15 technical de jure qualification.

16 What is significant is not the title that a

17 person holds, whether they be called a commander, a

18 deputy commander, or a coordinator, or any range of

19 labels. What is significant is the actual reality of

20 their superior authority.

21 That is all I have to say, Your Honours, in

22 connection with the superior subordinate relationship

23 aspect. I would now propose to move on to the "knew or

24 had reason to know" issue, unless there were any

25 questions.

Page 121

1 In that case, I will move on to "knew or had

2 reason to know." There is certainly no question, one

3 would submit, that someone could be held liable on the

4 basis of 7(3) if proof of actual knowledge had been

5 established, and that, of course, can be established by

6 either direct or circumstantial evidence. The real

7 issue is what is the meaning of "had reason to know."

8 Does it mean that one must prove that there is

9 information virtually in the hands of the superior or

10 does it mean something a little bit broader?

11 It is the submission of the Prosecution that

12 "had reason to know" refers to situations where either

13 the superior has information which puts him or her on

14 notice or which tends to suggest that subordinates were

15 about to commit or had committed crimes. That

16 essentially is the approach that was adopted by the

17 Trial Chamber, if I recollect accurately. And in

18 addition, however, it is the submission of the

19 Prosecution that "had reason to know" also includes the

20 situation where a superior had no such information in

21 his or her actual possession, but lacked such

22 information as a result of a serious dereliction of his

23 or her duty to obtain information of a general nature

24 within his or her reasonable access relating to the

25 conduct of his or her subordinates.

Page 122

1 If I might draw the attention of Your Honours

2 to the Blaskic decision in addition to the Celebici

3 decision. In the Blaskic trial decision, in fact the

4 Trial Chamber came to a conclusion about the meaning of

5 "had reason to know" which is essentially similar to

6 this somewhat broader approach taken by the Prosecution

7 vis-a-vis the Trial Chamber in the Celebici case.

8 If I may just quote very briefly. In

9 Blaskic, paragraph 332, the Trial Chamber found that:

10 "If a commander has exercised due diligence

11 in the fulfillment of his duties, yet lacks knowledge

12 that crimes are about to be or have been committed,

13 such lack of knowledge cannot be held against him.

14 However, taking into account his particular position of

15 command and the circumstances prevailing at the time,

16 such ignorance cannot be a defence where the absence of

17 knowledge is the result of negligence in the discharge

18 of its duties. This commander had reason to know

19 within the meaning of the Statute."

20 If I may just briefly indicate what

21 essentially appears to have happened with the Trial

22 Chamber decision in the Celebici case. Essentially,

23 the Trial Chamber in Celebici, if I understood the case

24 correctly, decided that what we had, or what had

25 happened was that as a result of the post World War II

Page 123

1 war crimes cases, "had reason to know," or the

2 mental -- the knowledge element required for command

3 responsibility included, as a matter of customary law,

4 sort of a "should have known" standard, a standard

5 similar to the one which we have been putting forward

6 by the Prosecution in this case. But then when

7 Additional Protocol I was drafted, for some reason the

8 legal standard was narrowed; and then, however, they

9 appear to concede that as time marched on and we had

10 the Statute of the International Criminal Court

11 adopted, then the meaning of customary law broadened

12 again. But during the particular period of time when

13 offences were committed in this case, you had a

14 narrowed version of the scope of the knowledge standard

15 as a result of the wording of Additional Protocol I.

16 When one looks at the rationale for the

17 Celebici Trial Chamber coming to that decision, they

18 certainly paid a very great deal of attention to the

19 negotiating record, to the travaux preparatoires for

20 the Additional Protocols.

21 It is our submission that, in fact, they paid

22 too much attention to that negotiating record and that,

23 in fact, it is, first of all, equally practicable to

24 interpret the provisions in Additional Protocol I in a

25 fashion which results in the same knowledge standard

Page 124

1 that we have put forward here, particularly when you

2 read Articles 86 and 87 together, and even if that

3 interpretation of Additional Protocol I is wrong, and

4 we submit it is not, the customary law standard

5 continued to co-exist with the provisions of Additional

6 Protocol I.

7 If I may give a particular example to

8 substantiate that second aspect of our argument. As a

9 result of the post-World War II war crimes trials,

10 there developed essentially a doctrine that superior

11 orders was not a defence to a war crimes charge.

12 When Additional Protocol I was negotiated,

13 there was extensive discussion about putting into that

14 instrument a provision related to superior orders.

15 Eventually the negotiators were unable to agree on a

16 text. There is nothing in Additional Protocol I or

17 Additional Protocol II, for that matter, which refers

18 to the doctrine of superior orders.

19 Having said that, no one, I would submit, has

20 since suggested that well, because Protocol I didn't

21 address superior orders, all of a sudden superior

22 orders might become a legitimate defence again. The

23 old customary law continued along because there was

24 nothing in there.

25 Now, here we've got a provision addressing --

Page 125

1 or two provisions addressing command responsibility,

2 after a fashion, in the Additional Protocols, but there

3 was first, we would submit, a legitimate basis for

4 interpreting Articles 86 and 87 together and to

5 maintain sort of what can be regarded almost as a

6 "should have known" standard.

7 Secondly, there is -- it is also legitimate,

8 we would submit, to argue that the old customary law

9 continued to co-exist with Additional Protocol I,

10 particularly bearing in mind that the Statute for the

11 International Criminal Court also, for the most part,

12 tends to adopt a standard somewhat similar to the one

13 that we are putting forward here.

14 That concludes my -- or our submissions with

15 respect to the "knew or had reason to know" standard.

16 Once again, Your Honours, I ask if there are any

17 questions that you would like to pose.

18 JUDGE BENNOUNA: [Interpretation] Mr. Fenrick,

19 I would have one question to put to you. You mentioned

20 the Blaskic judgement, and you said that it was spoken

21 about negligence of the commander and absence of

22 knowledge.

23 According to you, and since you have also

24 mentioned custom law, according to you, does this go

25 under the due diligence doctrine, i.e., the doctrine

Page 126

1 which mentions this notion of superior responsibility

2 in cases of negligence when there is an absence of

3 action, when the necessary measures have not been

4 implemented, the so-called due diligence doctrine as it

5 is called by international law? This is a question I

6 would like to put to you.

7 MR. FENRICK: Yes, Your Honour, that would

8 essentially be our position. Our position is that if

9 one is, to use the wording of Protocol I as an example,

10 if one is to consider the scope of the knowledge

11 requirement, it cannot be considered -- or cannot be

12 assessed in the absence of the duty to inform. A

13 military commander has in particular, as a result of

14 Article 87 but also as a preexisting obligation, a duty

15 to take all practicable measures to ensure that his

16 armed forces comply with the law. As part of that

17 duty, he must ensure that the forces are adequately

18 trained. He must also set up some kind of a reporting

19 mechanism, and he must make sure that that reporting

20 mechanism actually works.

21 The superior is not entitled to just stand

22 there and say, "Well, I'm sorry, but I was

23 concentrating on other things. I was busy engaged in

24 fighting a war, I wasn't paying attention to what my

25 people were doing to prisoners," or things like that.

Page 127

1 It is a part of the duty of this superior to be

2 informed. It doesn't mean there is any kind of a

3 strict liability standard here, but it certainly does

4 mean that he or she is obligated to try and set up a

5 system and make sure that a -- set up a reporting

6 system, that is, and to make sure that that system

7 reports or functions properly.

8 If he or she does not do that and as a result

9 does not become aware of information indicating an

10 offence is about to be committed or has been committed,

11 then, generally speaking, yes, he or she could be held

12 criminally responsible for failing to carry out that

13 duty, and determining the knowledge standard must be

14 done at -- while bearing in mind the duty requirement,

15 sir.

16 JUDGE BENNOUNA: [Interpretation] Thank you.

17 JUDGE POCAR: Thank you. Following on what

18 my colleague said now, in answering his question, you

19 mentioned that you are not invoking strict liability,

20 but you would be basing all your negligence.

21 Don't you think in that case -- I want to

22 find out what is the borderline between the two

23 notions, because wouldn't it be necessary in that case

24 to prove the negligence, in specific terms, not to

25 be -- not to remain within strict liability, I mean.

Page 128

1 Which would be your comment on that?

2 MR. FENRICK: I would -- I think that's

3 accurate, Your Honour. I would suggest, however, that

4 one can establish that negligence by circumstantial

5 evidence in the same way as one could establish by

6 circumstantial evidence that the accused or the

7 superior must have known.

8 In the Celebici judgement itself, there is,

9 in the discussion of proof of actual knowledge by

10 circumstantial means, a list of criteria that one might

11 look at in order to determine, on a circumstantial

12 basis, whether or not the accused actually knew of the

13 offences being committed.

14 I would suggest that evidence of that nature

15 might also be sufficient to establish whether or not

16 the accused should have known, within the meaning of

17 the Blaskic decision, in the same way. One can, of

18 course, also, if practicable, obtain information about

19 the actual reporting systems that were available to the

20 accused and those things that he set up.

21 JUDGE HUNT: I think the time has come to

22 take a break, Mr. Fenrick. You would have to add,

23 would you not, to your answer to Judge Pocar, that the

24 system that he should have set up would, in fact, have

25 determined or found out that there were offences being

Page 129

1 committed. There would have to be a factual causal

2 link between the failure to keep himself informed and

3 being able to stop these things happening or to be able

4 to find out that they had happened.

5 MR. FENRICK: If I recollect my argument

6 earlier, Your Honour, I said that not only must the

7 reporting systems be set up, but one must -- it must be

8 monitored to determine that it works.

9 JUDGE HUNT: Yes, but you have to prove that

10 if it had worked, he would have found out. That's the

11 point.

12 But anyway, let's take the break now. We'll

13 resume at 12.00.

14 --- Recess taken at 11.34 a.m.

15 --- On resuming at 12.00 p.m.


17 MR. MORRISON: If it please Your Honour, I

18 adopted Your Honour's invitation to speak to the

19 Prosecution during the short adjournment. The net

20 result is that on behalf of the appellant Mucic, we

21 make this application: That insofar as his case is

22 concerned and matters pertaining to his case, that

23 there be no final determination by the Appeals Court

24 until such time as we've had the opportunity to see and

25 examine all of the documents that the Prosecution may

Page 130

1 wish to rely upon or may wish to adduce in this case or

2 seek to adduce, and, thereafter, be permitted to make

3 such application or raise such motion as is appropriate

4 after having seen those documents.

5 I am told that they are all in the hands of

6 the translators at the moment. There are 12

7 translators working upon them, and most of the

8 documents are no longer than the ones that have already

9 been shown to the Court. So we're talking about two,

10 three pages in the main.

11 Nobody can give an exactly predicted time

12 scale, or I think the Prosecution may have a better

13 idea after this adjournment than they had before it,

14 but I would simply undertake, on behalf of the

15 appellant, to move as expeditiously as possible, as

16 soon as those documents are available.

17 JUDGE HUNT: Well, some time limit is going

18 to have to be imposed upon the Prosecution assuming

19 that we allow them to leave this option open, so that

20 it would be more or less the same time for you, I would

21 have thought, or at least to give us notice of an

22 application to alter your grounds of appeal.


24 JUDGE HUNT: Yes. Well, thank you, very

25 much, Mr. Morrison.

Page 131

1 Mr. Ackerman.

2 MR. ACKERMAN: Your Honour, I think what we

3 have seen this morning is the tip of what will turn out

4 to be a very difficult iceberg to deal with.

5 It seems to me that this Tribunal must take

6 the position that there comes a point where every case

7 ends.

8 The situation that exists in the former

9 Yugoslavia is such that it is entirely possible that in

10 every case that is heard by this Tribunal, at some

11 point following the Trial Chamber's judgement or the

12 Appeals Chamber's judgement or somewhere in between as

13 we have here, that somebody will discover some

14 additional documents that could have been relevant in

15 some way to the proceedings. That's the nature of

16 these cases, especially considering the extraordinarily

17 difficult task of securing documents from the former

18 Yugoslavia.

19 We all know that in every case that is before

20 this Tribunal, that there are materials available

21 somewhere in the former Yugoslavia that would assist a

22 Trial Chamber in deciding the cases, but it seems to me

23 in the interests of finality of this Tribunal's work,

24 that there must come a time when you say, "That's it.

25 We don't care if there are any additional documents,"

Page 132

1 unless in the very extreme example that some document

2 would appear that would show that someone is absolutely

3 not guilty who had been convicted. There would be a

4 substantial injustice that would simply need to be

5 corrected.

6 So I think it is unwise, at this point, for

7 the Tribunal to allow this matter to remain open and go

8 forward, because you would be setting a precedent that

9 cases simply cannot end here, and I think they must

10 end.

11 JUDGE HUNT: You understand, though, that all

12 of those considerations you put forward would be

13 relevant to any decision which is made when the

14 Prosecution seeks formally to tender this as fresh

15 evidence or whatever use it wishes to make of this

16 material.

17 MR. ACKERMAN: I understand that, Your

18 Honour. I think, however, it's my duty on behalf of my

19 client to oppose the Prosecutor's request, and I do

20 so.

21 JUDGE HUNT: Thank you.

22 Yes, Mr. Farrell.

23 MR. FARRELL: Excuse me, Your Honour. I just

24 wanted to inform you that we have been informed by --

25 the first thing is the Translation has indicated, if

Page 133

1 it's relevant to your determination, that on Friday,

2 June 23rd, would be, in their expectation, the date on

3 which the documents would be translated. That's my --

4 so I think approximately three weeks. The 23rd of June

5 is --

6 JUDGE HUNT: This is for 145 documents of two

7 or three pages long.

8 MR. FARRELL: That's my understanding from

9 the --

10 JUDGE HUNT: With 12 translators working on

11 it.

12 MR. FARRELL: No. I think that was a bit of

13 a misunderstanding and that may have been a problem in

14 discussions with Mr. Morrison.

15 The Translation Unit, as you know, is part of

16 the Tribunal. The indexing of the documents is part of

17 the Office the Prosecutor. The Office of the

18 Prosecutor placed 12 people in the Evidence Unit of the

19 Prosecutor's Office to have them properly indexed and

20 numbered, which is the first step before they can be

21 handed over to the Translation Unit.

22 JUDGE HUNT: Did nobody think of making

23 photostat copies so that they could go to the

24 translators earlier?

25 MR. FARRELL: In light of the procedure that

Page 134

1 we follow, it took two days of 12 people. So in light

2 of the fact that the photocopying might have saved two

3 days, that may have been the case, but the Translation

4 Unit requires that they be received in a manner in

5 which they are properly indexed. So there were only

6 two days that it took, the Wednesday and the Thursday

7 morning to have them indexed.

8 JUDGE HUNT: There are times when bureaucracy

9 does have to be put to one side, Mr. Farrell.

10 MR. FARRELL: Yes, Your Honour.

11 JUDGE HUNT: The 23rd seems to me to be a

12 very long time.

13 MR. FARRELL: I can certainly --

14 JUDGE HUNT: If somebody sat and read them

15 out, the translators here in the court would have them

16 done in a couple of hours, wouldn't they?

17 MR. FARRELL: I presume that may be the case,

18 although I can't pass judgement on that. I think the

19 concern is that there are something like 1.5 million

20 documents that are presently being considered for -- in

21 other cases, as you're aware, for disclosure and

22 translation, and unless we can take precedent over

23 other cases, I don't know whether -- at least the

24 Office of the Prosecutor, I don't know whether we can

25 indicate to the Translation Unit that these are the

Page 135

1 first priority.

2 I can certainly make further inquiries if you

3 wish, and I'll try and raise this after the lunch break

4 to try and leave it --

5 JUDGE HUNT: I think it might be a good

6 idea.

7 MR. FARRELL: Of course, Your Honour. Unless

8 you wish to hear from me on the comments of the other

9 two.

10 JUDGE HUNT: Well, yes. That's what I called

11 upon you for.

12 MR. FARRELL: Yes. That's what I was going

13 to say.

14 The first comment, simply, is that

15 Mr. Morrison appears to be, at this stage, joining in

16 the application of the Prosecutor, and has, it appears

17 from his submissions this morning, indicated that in

18 his view, the documents are substantially germane, as

19 he indicated. That being the case, it appears that not

20 only does he see the necessity for the proceedings to

21 remain open, but it appears from the wording he used

22 that upon his initial review on the face of them, they

23 are, in fact, significantly influential or

24 significantly important.

25 JUDGE HUNT: Well, he has, of course, a

Page 136

1 ground of appeal directed specifically to command

2 responsibility, and what he wants to do, as I

3 understand what Mr. Morrison said, is to consider

4 whether he can have these entered as fresh evidence in

5 order to assist him on his arguments under ground 9, I

6 think it is. It's a bit difficult to remember what Mr.

7 Mucic's ground numbers are; they change so often.

8 MR. FARRELL: Ground 7, Your Honour.

9 JUDGE HUNT: So you would not oppose the

10 delay of his ground being argued until they've had the

11 opportunity to consider this material?

12 MR. FARRELL: Maybe there's a

13 misunderstanding between Mr. Morrison and myself on the

14 application of Rule 115. I would submit that the

15 Prosecution's position is that there are two distinct

16 issues here. The first is whether there was an error

17 committed at the trial level, which of course are to be

18 seeking guidance of the Appeals Chamber, which includes

19 of fact and errors of law.

20 The second issue is the determination as to

21 whether or not under Rule 115 additional evidence could

22 have rendered the conviction unsafe. That's a separate

23 issue which I would submit doesn't necessarily require

24 this Court to actually take those documents and apply

25 it to the present grounds of appeal.

Page 137

1 The grounds of appeal may stand on their own

2 or fall on their own in light of the record before the

3 Trial Chamber. The additional issue is whether, based

4 on the facts before the Trial Chamber, including the

5 new evidence, not making findings necessarily of --

6 complete findings of fact on them, but including the

7 new evidence, that those new facts could have affected

8 the verdict rendered. If that's the case, then the

9 matter, we would submit, would be remitted back to the

10 Trial Chamber. It's not that this Court then makes all

11 new findings of fact with respect to the totality of

12 the evidence at trial and a determination of findings

13 of fact de novo on new evidence before it; it's just to

14 reach the threshold that the conviction was unsafe and

15 therefore is remitted back to the Trial Chamber. I see

16 those as two distinct issues.

17 JUDGE HUNT: Yes, but if that one succeeds,

18 then there's no need for us to determine whether the

19 Trial Chamber made an error of fact based upon the

20 material that was at the trial.

21 MR. FARRELL: Well, likewise, if you make a

22 determination that they made an error of fact in the

23 first place, you would send it back, remit it back for

24 a new trial and wouldn't have to determine the other

25 issues. So I see them as the same --

Page 138


2 MR. FARRELL: -- with respect.

3 Just with respect to Mr. Ackerman's comments,

4 Your Honour, his comments about finality are

5 appreciated and, in general, agreed with. But in our

6 submission, that's why we have the Rules. The Rules

7 themselves, in fact, set out what the finality is in

8 relation to the proceedings before this Chamber, and

9 Rule 115 specifically sets out the issue relating to

10 finality, and as well as Rule 119 and Rule 120 for the

11 review proceedings.

12 So absent a determination of this Chamber

13 that under Rule 127 an adjournment wouldn't be granted

14 to file it, I would submit that the Rules, in fact,

15 that we're attempting to apply determine the issue, and

16 I think it would be, in our respectful submission, a

17 little bit -- wouldn't be the correct result if these

18 documents were found 5 days previously, which would

19 make it within the time frame of 15 days, and they

20 could be admitted simply for the sake of the --

21 JUDGE HUNT: Well, it's not the question of

22 when they were found, but when you make an application.

23 MR. FARRELL: And whether due diligence was

24 exercised, Your Honour. Thank you.

25 JUDGE HUNT: But if we were to grant the

Page 139

1 Prosecution's application to leave its options open,

2 there would have to be some very strict timetables

3 imposed, and that is why I think, if I may say so, the

4 Translation Unit's attitude is important.

5 MR. FARRELL: Yes, Your Honour.

6 JUDGE HUNT: One would have thought that

7 these documents could be done so that we would see them

8 by the end of this week.

9 MR. FARRELL: I'll certainly look into seeing

10 whether that's possible, and I obviously agree with

11 your comments about the need for a strict time frame.


13 MR. FARRELL: Excuse me for one minute, Your

14 Honour.

15 MR. ACKERMAN: Your Honour, may I just add

16 something that I neglected when I was up a moment ago?


18 MR. ACKERMAN: If the Chamber determines that

19 the Prosecutor's options are to be left open, we would

20 appreciate you entering an order that those documents

21 be immediately provided to the Defence, translated or

22 untranslated. We would like the original B/C/S

23 documents, copies of them, immediately. We're willing

24 to wait until the Translation Unit finishes the

25 translation and receive those seriatim as that goes on.

Page 140

1 JUDGE HUNT: Yes. Thank you.

2 MR. FARRELL: Sorry, Your Honour. I just

3 needed to get a document.

4 With respect to the -- two matters. First of

5 all, I was informed by Mr. Huber, the case manager,

6 that he has asked what the earliest possible date was,

7 and it's the indication that the earliest possible date

8 would be the 19th, that the Translation Unit has made

9 it a priority, that it would take approximately one to

10 two weeks to translate and then give themselves

11 approximately one week to revise. I will once again

12 confirm those dates, but that's just further

13 information for you, Your Honour.

14 JUDGE HUNT: I think the Translation

15 Department can do far better than that.

16 MR. FARRELL: I'll certainly impress upon

17 them the Chamber's concern.

18 Secondly, with respect to the request for the

19 disclosure of the documents immediately, the

20 Prosecution just has a few comments in that regard.

21 First of all, all the documents haven't been

22 reviewed, obviously, as you're fully aware, and the

23 Prosecution's concern, of course, is that there may be

24 some material in there, sensitive or otherwise, that

25 may have to be redacted. At this point in time, Your

Page 141

1 Honour, we don't -- the Prosecution doesn't know.

2 JUDGE HUNT: This, of course, is where you do

3 have your 12 people working on it.

4 MR. FARRELL: Absolutely. As I understand

5 it, it's not the general practice of the Tribunal to

6 require disclosure of documents which there hasn't been

7 a determination of their potential relevance and

8 whether the Prosecution may not intend to rely on,

9 subject, of course, to the obligations for disclosure

10 under the Rules, which the Prosecution will of course

11 abide by. At this point in time, until we've had the

12 chance to determine the content of the documents and

13 the relevance, and to a certain extent, obviously,

14 their sensitivity, we wouldn't submit that the

15 disclosure of them in B/C/S would be appropriate.

16 JUDGE HUNT: How about a rolling disclosure?

17 In other words, you give them what you've done already,

18 or your 12 investigators have got through, and you keep

19 supplying them as they are processed through this

20 bureaucracy that resides upstairs.

21 MR. FARRELL: Assuming, of course, that the

22 Prosecution is going to tender them under Rule 115,

23 then we'll disclose them.

24 JUDGE HUNT: I was thinking really also of

25 Mr. Mucic, who wants to know what the documents are

Page 142

1 from his point of view, as well as Mr. Ackerman's.

2 MR. FARRELL: Once we're in a position to

3 assess the ones that we have gone through, and if the

4 Prosecution intends to rely on them and they don't have

5 sensitive documents that don't need to be redacted,

6 then yes.

7 JUDGE HUNT: You say you still haven't made

8 up your mind even about the documents that these 12

9 people have been working on hopefully over the weekend,

10 are you?

11 MR. FARRELL: Yes. I'm sorry. The documents

12 that the persons have been working on were for the

13 purposes of having them properly what's called indexed,

14 for the purpose of having them given a proper

15 identification number. There have been other persons

16 working full time on having them translated, and those

17 were some of the documents that we presented to you

18 today. So to the extent that we are able, yes, Your

19 Honour, we'll attempt to.

20 JUDGE BENNOUNA: [Interpretation] Mr. Farrell,

21 I'm sure you are well aware of the fact that the

22 Appeals Chamber must at least have a list of your

23 documents which you wish to submit as additional

24 evidence. We cannot wait for you. We cannot wait for

25 this machine of yours to produce documents one after

Page 143

1 the other. We have at some point in time to make a

2 decision. Either we accept additional evidence, as is

3 planned by Rule 115 of our Rules of Procedure, and that

4 is for the Appeals Chamber to decide, and then we have

5 to grant you an additional delay for the submission of

6 these documents and we have to set a very precise time

7 frame. But in order to do so, we must have a list of

8 this additional evidence, even though these documents

9 are not translated.

10 You must try to act swiftly and you must try

11 to give us a list of your documents of which you think

12 that you may want to submit them as additional

13 evidence, a decision which will in turn enable us to

14 make a decision allowing you to tender them within the

15 framework of Rule 115. And this decision can only be

16 made if we have a list of these documents and at least

17 an idea of what this document is all about.

18 You don't need 12 people to achieve that, you

19 don't need a hundred people to achieve that; you just

20 need someone who is familiar with the B/C/S language

21 and who is able to give you an idea of the content of

22 the document so that you may decide whether or not this

23 document is relevant and for you to decide whether or

24 not you will choose to submit this document to us.

25 This must be done within the days that remain during

Page 144

1 this week.

2 Absent these measures, we cannot make a

3 decision, an enlightened decision. You understand

4 that. You cannot have carte blanche. You cannot have

5 that kind of tool between your hands. I speak in my

6 own name, but I would oppose such a decision that would

7 basically give you carte blanche in order to make

8 things easier for you.

9 MR. FARRELL: Thank you very much, Your

10 Honour. If there is a necessity, an order of this

11 Court, we certainly will try to abide by it. The

12 difficulty in giving you a summary at this stage is,

13 quite frankly, that until there's a determination by

14 the Office of the Prosecutor with respect as to whether

15 or not we're even going to file a Rule 115, the

16 Prosecution would take the position it's a little bit

17 inappropriate to give you documents which bear on the

18 guilt or innocence of the accused prior to it --

19 THE INTERPRETER: Could Mr. Farrell please

20 slow down. Thank you.

21 MR. FARRELL: My apologies.

22 The Prosecution would be of the view that it

23 may be considered inappropriate to provide documents

24 which may or may not go to the guilt or innocence of

25 the accused prior to a determination whether we're

Page 145

1 submitting them.

2 I'm not saying that the Court can't make its

3 own determination. It's not going to be influenced in

4 any way by the documents. It will determine the issue

5 on the record before it at the trial, or if it admits

6 it on the documents which it receives. I'm not saying

7 it can't receive them; just that until we make a

8 determination under Rule 115. In light of Judge

9 Bennouna's concerns, at the break we'll try and make an

10 effort to determine the best-case scenario with respect

11 to the translation and with respect to providing the

12 Chamber whatever material they think would be necessary

13 to assist them.

14 JUDGE HUNT: Mr. Farrell, I share Judge

15 Bennouna's concerns about this. I cannot accept,

16 frankly, that you have had 12 people just numbering

17 these documents, and they've been working there for two

18 days just so they can be indexed. They must have been

19 forming some idea of what those documents contain.

20 Now, those are the sorts of things that somebody from

21 the OTP legal team should be looking at to be able to

22 make a much better decision. You have five documents

23 which, as you have outlined, may very well have

24 relevance to the issues at trial. I don't say I've

25 accepted what you've said, but you have put up a

Page 146

1 substantial argument as to their admissibility.

2 Somebody with the material obtained by these 12

3 researchers should be able to then form a decision, and

4 sometime during the course of this week, whether you

5 are going to make the application.

6 MR. FARRELL: Fair enough.

7 JUDGE HUNT: You can't just sit back and let

8 this thing roll on for some bureaucratic reasons.

9 MR. FARRELL: The Prosecution will make every

10 effort by the end of the week to give you some

11 indication.

12 JUDGE HUNT: Yes, but we want to be able to

13 make a decision today as to whether the Prosecution is

14 allowed to keep its case open on this. And I think

15 that the decision has to be made today, otherwise

16 you -- we don't want you filibustering to finish the

17 day off and we have to make the decision tomorrow. So

18 I think after lunch you had better come back with some

19 more information.

20 MR. FARRELL: Thank you, Your Honour. I'll

21 make sure I do that.

22 MR. ACKERMAN: Your Honour, may I just say

23 with regard to the disclosure issue, it isn't, under

24 Rule 66(B), just what the Prosecutor intends to use,

25 but what might be material for the preparation of the

Page 147

1 Defence.

2 JUDGE HUNT: Oh, yes. I think that the

3 Prosecution accept that. They just say that somebody

4 within the OTP legal team has to make a decision on

5 that rather than these researchers or investigators,

6 whoever they are, who have been numbering the

7 documents.

8 MR. ACKERMAN: I just can see, with the

9 experience that I have here, that we are weeks away

10 from them deciding whether they're material to the

11 Defence.

12 JUDGE HUNT: Oh, no, we're not.

13 MR. ACKERMAN: Okay. Thank you, Your

14 Honours.

15 JUDGE HUNT: Yes. Thank you.

16 Mr. Fenrick, may I ask you a question about

17 the "reason to know or ought to or should have known."

18 Is the position of the OTP different now that it has

19 this material which may or may not go to the issue of

20 direct responsibility or direct control? Because, you

21 see, you've put this up as a purely academic exercise,

22 as a matter of public importance for the Appeals

23 Chamber to pass on.

24 MR. FENRICK: It's my understanding, Your

25 Honour, that it continues to not be directly related to

Page 148

1 any of the particular accused in this case.

2 JUDGE HUNT: So it remains a purely academic

3 exercise? An important one, perhaps.

4 MR. FENRICK: An important one, yes.

5 JUDGE HUNT: Perhaps, but nevertheless, it is

6 purely academic and not related to the issues in this

7 trial, or this appeal.

8 MR. FENRICK: That's correct.

9 JUDGE HUNT: Thank you.

10 MR. FENRICK: If Your Honours have no further

11 questions in connection with "knew or had reason to

12 know," I would just like to briefly address the

13 necessary and reasonable measures aspect of having the

14 ability to prevent or punish, and essentially it's our

15 understanding that a number of the Trial Chambers have

16 decided that necessary and reasonable measures a

17 superior may take are only those that are within his or

18 her powers. That's primarily a factual matter and it's

19 dependent on the circumstances of a particular case,

20 and under some circumstances the obligation to prevent

21 or punish may be met by simply reporting the matter to

22 the competent authorities.

23 If I might talk about sort of normal military

24 practice very briefly, Your Honours. In many military

25 legal systems these days, there is a very definite

Page 149

1 effort being made to insulate the military justice

2 system from command influence, and in fact it would be

3 most unlikely in most systems that you could say,

4 "Well, this fellow is a commander. He is therefore

5 entitled to punish the accused." Or, in the converse

6 situation, "He doesn't have the power to punish,

7 therefore he's not a commander or not somebody in a

8 position of superior authority."

9 It would be quite normal in many systems to

10 have the military judiciary, or whatever judiciary is

11 functioning, insulated from the command system so that

12 all that a commander could do would be to start an

13 investigation in motion or to pass a complaint to a

14 different level of authority. And the necessary -- the

15 fact that a general, for example, is not entitled to

16 summarily punish a particular perpetrator is irrelevant

17 in these cases. It's all a matter of circumstance.

18 And that's all I have to say on that issue,

19 Your Honours. If there are any further questions.

20 Those are all of my submissions related to

21 the command responsibility issue, Your Honour.

22 JUDGE HUNT: Thank you.

23 Well, now, Mr. Moran.

24 MR. FARRELL: Excuse me. I apologise, Your

25 Honour. I'm not obviously getting to the point of

Page 150

1 incurring your favour by this, but the grounds of

2 appeal in relation to 7(3), as indicated in the outline

3 -- and I apologise. This may not have been made clear

4 at the beginning -- related to a number of issues under

5 7(3), and the outline indicates that the law on command

6 responsibility is with respect to the issues

7 Mr. Fenrick addressed and then that there are other

8 grounds of appeal in the brief: Ground 2 and ground --

9 and an additional issue regarding -- ground 2 and 3

10 regarding the Prosecution appeal brief.

11 Those two grounds were not addressed by

12 Mr. Fenrick. He spoke about the law. And the second

13 ground relates to the application of the law to the

14 facts in this case and the Prosecution's request for a

15 remedy, which is the substitution of a verdict of

16 conviction.

17 JUDGE HUNT: Is this what you're saying, that

18 you are going to follow Mr. Fenrick?

19 MR. FARRELL: With your permission.

20 JUDGE HUNT: I'm sorry. It had not been made

21 clear to us that you would --

22 MR. FARRELL: My apologies.

23 JUDGE HUNT: -- and I would have called upon

24 you otherwise. Yes.

25 MR. FARRELL: Thank you.

Page 151

1 JUDGE HUNT: Sorry, Mr. Moran.

2 I have now had the opportunity of looking at

3 the document. It was handed in to us. And it is made

4 very clear there, so you proceed.

5 MR. FARRELL: Thank you, Your Honour. I

6 should have indicated that at the beginning, or maybe

7 we could have had Mr. Fenrick address that at the

8 beginning to make it clear.

9 In light of the time, I'll try and make my

10 submissions as precise as possible, or concise as

11 possible, while still speaking at a reasonable rate.

12 The ground 2 that's in the brief is an

13 application of the law, as submitted by Mr. Fenrick, to

14 the facts in this case. There's two options as a

15 result of a finding, if this Appeals Chamber finds that

16 there was an error of law.

17 The first is that if it finds on the facts as

18 found, as a result of the application of the correct

19 test, that there could be no other reasonable

20 conclusion than guilt, the Prosecution would ask that

21 they submit a substituted verdict of conviction.

22 If the facts as found either do not address

23 some of the elements necessary for a finding of guilt,

24 or are such that they are equivocal, then if there is

25 an error of law, the second option is to remit it back

Page 152

1 to the Trial Chamber.

2 The Prosecution's position on ground 2 is

3 that if you look at the facts as found, applying the

4 test which the Prosecution submits is the correct one,

5 submitted by Mr. Fenrick, then the result would be a

6 substituted verdict of conviction.

7 As you know, Mr. Fenrick made a submission

8 that one of the errors submitted by the Prosecution in

9 relation to the test applied is that of

10 superior/subordinate relationship. And as he

11 indicated, there were three elements to the

12 relationship: One was that the superior have an

13 effective control over persons committing the

14 violations; secondly, that effective control is

15 articulated as being the ability, the material ability,

16 to prevent or punish the commission of the offence; and

17 thirdly, that that control can be de facto or de jure.

18 In the Prosecution's submission, the Trial

19 Chamber erred in its conclusion with respect to

20 Mr. Delacic on superior responsibility because it

21 appeared to focus on the necessity of a chain of

22 command. It appeared to focus on the necessity of that

23 there has to be a command structure, rejecting the

24 Prosecution's submission that in certain circumstances

25 there may very well be a superior who has a substantial

Page 153

1 influence that could bring about, or who has the

2 material ability to bring about, the prevention or the

3 punishment of crimes, or that there may be

4 circumstances where he's not in the direct chain of

5 command himself, though has a position which could

6 exert that influence as well. The bottom line being

7 that the Trial Chamber's reliance on the need for a

8 chain of command, and specifically some -- what appears

9 to be some direct link or direct chain of command,

10 caused them, in the Prosecution's submission, to negate

11 two possibilities.

12 These two possibilities which the Prosecution

13 submits reflects the correct approach are, one, that a

14 person may still be found liable where they are not in

15 a specific delineated chain of command with

16 identifiable subordinates; or two, there may be

17 circumstances where the superior is in fact in a

18 non-command function where that superior may incur

19 liability. And these two possible circumstances would

20 require that the superior/subordinate relationship

21 should not be defined by the Appeals Chamber in a

22 narrowly circumscribed scribed manner.

23 Mr. Fenrick has referred to the hostages

24 case, the Hirota case, and the Muto case as examples

25 where the World War II case law supports that there may

Page 154

1 be -- it's not that it's necessary, and you have to

2 look at the circumstances of each case, but there may

3 be circumstances where a person in a non-command

4 position may be held criminally responsible.

5 In the submission of the Prosecution, it's

6 important to recall that the purpose of the command

7 responsibility, and the purpose of the sections as set

8 out in the Additional Protocols, is to prevent war

9 crimes from being perpetrated and to punish those who

10 commit them. Article 68(1) talks about the general

11 obligation to repress or suppress breaches, and the

12 additional commentaries at page 1007 indicates that the

13 importance of this provision cannot be doubted.

14 It would appear, in the Prosecution's

15 submission, somewhat illogical if you find that there

16 are a commission of war crimes, if you find that a

17 person has sufficient authority or responsibility such

18 that they could prevent them, but they are not found

19 liable because there are no direct subordinates.

20 With respect to the Hirota case; the Muto

21 case, the staff officer who is not in a command

22 position, these are examples where in the special

23 circumstances of those cases, and it may very well not

24 occur very often, but in the special circumstances of

25 those cases, where they can effectively or materially

Page 155

1 affect and bring about the prevention and punishment,

2 they shouldn't be subject to prosecution simply because

3 they claim that they have no direct subordinates.

4 That position, as taken by Mr. Fenrick,

5 requires an understanding, when dealing with

6 Mr. Delalic, of the facts.

7 There is one issue, though, I'd like to

8 address before proceeding on the facts in relation to

9 Mr. Delalic, and that's the scope of the Appeals

10 Chamber's ability to assess the evidence at trial, the

11 evidence on the Trial Record, and make its own

12 determination on the basis of that evidence.

13 To be fair, in the Prosecution appeal brief

14 at paragraph 3.34, the Prosecution submits that the

15 Appeals Chamber can do one of two things: It can rely

16 on the facts as found or it can rely on any evidence

17 not rejected by the Trial Chamber. It's that second

18 aspect that I would like to address very briefly right

19 now.

20 There's a certain difficulty in the

21 judgement, in our respectful submission, in that the

22 Trial Chamber makes certain findings of fact but then

23 doesn't proceed any further. For example, in the

24 evidence with respect to Dr. Grubac, the Trial Chamber

25 acknowledges that Dr. Grubac was released and that the

Page 156

1 release order was signed by Mr. Delalic.

2 There's no reference in the evidence of

3 Dr. Grubac to Dr. Grubac's testimony that he was

4 informed that Delalic will release him from the

5 prison. There's no reference to that in terms of an

6 actual finding of fact. It's in the transcripts.

7 There's no reference to the testimony of Dr. Grubac's

8 wife, that she went to Delalic himself, specifically

9 Delalic, to have her husband released and he was

10 subsequently released.

11 The difficulty is that there seems to be

12 evidence that accepts that Mr. Delalic had a role to

13 play and signed the document, the release order, but

14 doesn't make any comment to the rest of the evidence on

15 that specific issue. Now, in fairness, the Trial

16 Chamber found that he was signing the documents only on

17 behalf of someone else.

18 The Prosecution, in an attempt to bring to

19 the attention of the Chamber this other evidence which

20 doesn't appear to be contradicted, put in the

21 submission that the Appeals Chamber could actually make

22 new findings of fact on any evidence that was not

23 rejected or not contradicted by the Trial Chamber.

24 After the Tadic Appeals Chamber's decision

25 and after this Appeals Chamber's decision as well in

Page 157

1 Aleksovski, the Prosecution now takes the view that the

2 Appeals Chamber cannot intervene and make findings of

3 fact on evidence on the record.

4 In a situation where there is to be an

5 intervention on the facts, it's the Prosecution's

6 submission that the Appeals Chamber be permitted to

7 intervene on factual matters in at least three

8 circumstances.

9 The first is where no reasonable person could

10 have taken the view of the evidence that was taken by

11 the Trial Chamber. This is a clear error of fact

12 standard, and it was articulated both in Tadic and

13 Aleksovski, both in Tadic in the majority and in the

14 separate opinion of Judge Shahabuddeen, and it

15 basically is a reasonableness standard for a

16 determination whether the factual findings at trial

17 constituted an error.

18 The converse, of course, is that where there

19 is only one reasonable conclusion to be drawn from the

20 evidence and the Trial Chamber did not draw the only

21 reason conclusion from the evidence, that would

22 constitute error of fact as well.

23 The second would be that the Trial Chamber

24 failed to take into account relevant facts or took into

25 account irrelevant facts, and the third would be that

Page 158

1 they applied the wrong legal criterion to the

2 determination of the significance of the facts.

3 In the Prosecution's submission, these are

4 examples where the Appeals Chamber can intervene, and

5 these three examples are taken from the Tadic decision,

6 but that the Appeals Chamber generally must accept the

7 facts as found by the Trial Chamber and that the

8 Appeals Chamber generally does not exercise a de novo

9 function in relation to evidence presented at trial.

10 When the parties are alleging an error of

11 fact, and in this case the Prosecution is alleging the

12 facts as found should have -- the only reasonable

13 conclusion is that the Trial Chamber should have found

14 him guilty once the Appeals Chamber applies the correct

15 legal test is a standard of unreasonableness and not,

16 as we submit in our brief, that the Court can look at

17 any evidence not rejected by the Trial Chamber. I

18 think that's fair in light of the decision as well in

19 paragraph 167 in Aleksovski, where the Appeals Chamber

20 states that, "Unless it is safe to infer that the Trial

21 Chamber formed a particular view of the evidence beyond

22 what was expressly said, the Appeals Chamber cannot

23 draw an inference from this evidence," and the

24 Prosecution obviously is bound by that decision of the

25 Appeals Chamber in Aleksovski.

Page 159

1 Therefore, applying the law, the applicable

2 law, as the Prosecution submits by Mr. Fenrick, to the

3 facts in this case, my reference will be specifically

4 to facts found in the Appeals Chamber's decision.

5 With respect to Mr. Delalic, the facts by the

6 Appeals Chamber seem to be clear. Sorry, the Trial

7 Chamber. My apologies. He started in the Konjic

8 municipality as a civilian. He had no official

9 position when he arrived in the civilian or military

10 structure, but by the beginning of May he was receiving

11 authorisation to act on behalf of the state to procure

12 weapons and equipment in other state, that being

13 Croatia.

14 The Trial Chamber found that he was a

15 well-placed, influential individual. Within one month

16 of being -- apparently one to two months of being in

17 Konjic, he was appointed the coordinator in the region,

18 and he was empowered to directly coordinate the work of

19 the defence forces of the Konjic municipality and the

20 War Presidency.

21 He engaged in regular intervention designed

22 to facilitate the work of the War Presidency with

23 different military formations. He signed a document

24 regarding opening the railway line between Pazaric and

25 Jablanica.

Page 160

1 The Court found, in fairness, that this was a

2 formal acknowledgment of the involvement of the

3 coordinator but that, in fact, according to the

4 evidence one of the brigadiers who testified, his

5 signature was needed to have the order effected

6 quicker.

7 Mr. Delalic coordinated and directed the

8 proceedings of a meeting of the military investigation

9 commission on a particular occasion in June 1992. The

10 Court concluded that he was simply acting on behalf of

11 a superior command, but the position being is that he

12 is acting in this capacity. He's meeting with members

13 of the commission, he appears to be directing the

14 proceedings, he reads out an order to them, and he

15 explains how they are to conduct interrogations of

16 detainees in the prisons.

17 This was during a period of time that he was

18 the coordinator, when he allegedly had no de jure or no

19 de facto authority with respect to the prison, but he

20 was performing a function in relation to the

21 interrogation and classification of prisoners in

22 Celebici.

23 With respect, this has nothing to do with his

24 alleged facility as a coordinator dealing with

25 logistics.

Page 161

1 He signed release orders in July 1992, as

2 found by the Trial Chamber, on behalf of the head of

3 the investigating body of the War Presidency. Once

4 again, this is again while he was a coordinator, while

5 he was allegedly someone who was involved in the

6 procurement of weapons and dealing with logistics.

7 In this situation, the Trial Chamber finds

8 that he was given authority by the head of the

9 investigating body, and he was given the authority as a

10 result in relation to the release of prisoners. Once

11 again, this has nothing do to do with being a

12 coordinator.

13 He was assigned the commander of TG-1, as

14 found by the Court, as indicated by my friend

15 correctly. Presumably he took over the function around

16 July 30th. I think that would be a direct reading of

17 the judgement. And that that was signed by the

18 president of the Republic of Bosnia-Herzegovina.

19 He had contacts with the International

20 Committee of the Red Cross, who were conducting visits

21 to the prisons and reporting on the treatment, and it's

22 once again submitted that this has nothing to do with

23 his assigned functions as found by the Trial Chamber

24 with respect to him being a commander. And once again,

25 it's respectfully submitted that it's because the Trial

Page 162

1 Chamber approached the legal test of requiring a chain

2 of command, and if the subordinates in the prison,

3 being the prison officials Mr. Mucic, Mr. Delic, were

4 not in a chain of command back up to Mr. Delalic, he

5 couldn't be found guilty.

6 The evidence also accepted by the Trial

7 Chamber is that he signed two orders directing action

8 to be taken in the Celebici prison: one on August

9 24th, 1992; one on August 28th, 1992. These were

10 issued by Mr. Delalic as commander of Tactical Group 1,

11 and they were directed to the armed forces supreme

12 command staff of Konjic and copied to the Celebici

13 prison administrator. These orders concerned the

14 functioning of Celebici prison camp, and in the order

15 he indicates that the commander of the Konjic armed

16 forces is responsible to him for the prompt and

17 effective implementation of these orders. It also

18 indicated that there was a direct order to Mr. Mucic to

19 establish a commission of three members to undertake

20 the interrogation of prisoners.

21 Once again, the Court looks at this and says

22 that he was acting on behalf of someone else and that

23 he had no direct command authority over the prison.

24 It is submitted that Mr. Delalic, though

25 maybe not found to be in the direct chain of command

Page 163

1 here, when applying the test as to whether or not he

2 was someone who was in a position of authority to meet

3 the effective control test such that he could have had

4 influence over the persons committing the crime and

5 could have been -- had the material ability to prevent

6 and punish.

7 It is submitted that the facts clearly show

8 that he is not simply someone who is involved in

9 logistics or assisting in lifting the siege of

10 Sarajevo; he acts on behalf of the War Presidency, he

11 acts on behalf of the supreme command in Sarajevo, he

12 acts on behalf of the investigating commission with

13 respect to prisoners, he issues orders with respect to

14 the functioning of the Celebici prison, he indicates

15 that a commander of an armed forces in Konjic is

16 directly responsible to him to implement the order.

17 The only reasonable inference, it is

18 submitted, is because he then has to report back, if we

19 accept the Trial Chamber's reasoning, he has to report

20 back to the supreme command in Sarajevo, if we accept

21 the reasoning that he's acting on their behalf. He

22 issues orders on behalf of the investigative bodies, he

23 reports orally in writing to the War Presidency, and as

24 commander he reports to Sarajevo.

25 Based on these very facts as found by the

Page 164

1 Trial Chamber, it is submitted that there are two bases

2 for the reasonable conclusion that he performs a

3 function such that he has sufficient control or

4 authority or powers of substantial influence to

5 exercise the material ability to prevent or punish.

6 If he is not in a specific chain of command,

7 he is similar to the other cases referred to by

8 Mr. Fenrick in the sense that he is in such a special

9 position that he has links with all the parties. He

10 has links with the War Presidency, he has the ability

11 on behalf of the supreme command in Sarajevo to issue

12 orders, he reports back to the supreme command in

13 Sarajevo, and he has the authority to communicate and

14 intervene in relation to all of them.

15 As a result of the --

16 THE INTERPRETER: Could you please slow down

17 for the interpretation.

18 MR. FARRELL: As a result of this specific

19 position and someone who is granted authority by the

20 higher command, it is the Prosecution's position that

21 those facts demonstrate he had control.

22 The other -- the only other -- the other

23 possible basis on which the Prosecution indicates that

24 there is an inference is that he, in fact, when you

25 look at this first scenario, he is, in fact, in the

Page 165

1 chain of command. He, in fact, is the link. He's the

2 link between the supreme command in Sarajevo and orders

3 to the Konjic forces. He's the link for the orders on

4 August 24th with respect to the Celebici prison. He's

5 the link with respect to the investigating commission

6 when they can't, as found by the Trial Chamber, they

7 can't undertake the releases of prisoners. He's the

8 link with the supreme command when there's a meeting of

9 the investigative commission to give them orders.

10 With respect, he is in the chain of command.

11 He, in fact, is one of the links in the chain of

12 command, though his link is not a direct link as the

13 commander of the prison, as found by the Trial Chamber.

14 In light of those factual submissions, it is

15 the submission of the -- factual conclusions, it is the

16 submission of the Prosecution that applying the test,

17 as submitted by Mr. Fenrick, this Court could come to

18 no other conclusion that, in fact, Mr. Delalic did have

19 the requisite ability to prevent and punish and was a

20 superior.

21 The submissions regarding the appropriate

22 remedy in this regard are that if the Appeals Chamber

23 accepts the Prosecution's submission that the Trial

24 Chamber erred in the test it applies and in applying

25 the correct test, as the Prosecution submits, to the

Page 166

1 facts as found concludes that the only reasonable

2 conclusion is that of guilt, it's submitted that the

3 Appeals Chamber reversed the judgement and revise it by

4 substituting a verdict of conviction.

5 If, on the other hand, the Appeals Chamber

6 accepts the Prosecution's submissions that there was an

7 error in the test it employed but feels that based on

8 the facts as found it's not in a position to revise it

9 to enter a verdict of guilt, it's submitted that the

10 appropriate remedy would be to remit the matter to the

11 Trial Chamber.

12 Thirdly, the Prosecution has included within

13 its submissions the secondary argument that the Trial

14 Chamber erred in excluding evidence. This is in the

15 brief. You'll see that the Prosecution submits that on

16 the facts as found --

17 MR. ACKERMAN: Excuse me. Do I have an

18 objection at this point? I had perhaps wrongly assumed

19 that the Prosecutor had abandoned this point. They had

20 asked in their brief that the -- this Chamber give them

21 the opportunity to present witnesses and evidence on

22 that point before the Chamber, and having not pursued

23 it any further following that point, having not made

24 any application to bring witnesses before the Chamber

25 as they indicated in their brief they were going to do,

Page 167

1 I was of the opinion they'd abandoned it.

2 They did not raise it at the Status

3 Conference as an issue that they were going to raise

4 during these arguments. During the Status Conference,

5 we went through all of the issues that were appropriate

6 to be argued, and the Prosecution never mentioned that

7 this matter would be brought before the Chamber during

8 these arguments, and so I, therefore, assumed that they

9 had abandoned the point by not pursuing it after they

10 had raised it in their briefs.

11 They didn't make any further application to

12 this Court to bring the witnesses before this Court to

13 prove those documents. So I think it's totally

14 improper now for them to, in that context, raise this

15 issue that they clearly had abandoned.

16 JUDGE HUNT: Yes? It is a little surprising,

17 I must confess. I read that only the other night and

18 noted that there had been nothing produced.

19 MR. FARRELL: Well, maybe the fault lies with

20 the wording in the reply brief, but that section only

21 goes to the remedy, not to the abandonment of the

22 ground of appeal, as I understand it, Your Honour.

23 JUDGE HUNT: If you say that the Trial

24 Chamber wrongly excluded evidence, we have to know what

25 the evidence is, don't we?

Page 168

1 MR. FARRELL: The evidence is before you.

2 The question was the appropriate remedy if you found

3 that they erred in law in excluding the documents.

4 JUDGE HUNT: Was this only documents? I

5 didn't realise it was limited to that.

6 MR. FARRELL: I'm sorry, Your Honour. There

7 was documents and three witness.


9 MR. FARRELL: The issue is an issue of an

10 error of law. The issue is whether or not the Trial

11 Chamber applied the correct test for the admission of

12 rebuttal or fresh evidence. If they applied the

13 incorrect test and it's an error of law, then the Trial

14 Chamber erred.

15 JUDGE HUNT: Yes, but this is another one of

16 these solely academic matters unless we know that if

17 they had not erred it would have affected the result,

18 and we can't decide that without knowing what the

19 evidence was that you sought to tender, other than the

20 documents.

21 MR. FARRELL: I apologise for the

22 misunderstanding, but quite clearly the documents are

23 before you. All of them are before you. They're

24 attached as three appendices to the appellant's brief.

25 What the remedy that the Prosecution

Page 169

1 submitted in its first appeal brief was that the

2 Appeals Chamber could call all the witnesses, make new

3 findings of fact, and not have to send it back to the

4 Trial Chamber. That's different than having the

5 evidence before you -- obviously you're --

6 JUDGE HUNT: Yes, I see your point, but is

7 this for some academic exercise then, simply to say

8 that the right of the Prosecution is to lead evidence

9 in reply even though it is not in reply or even though

10 it was a matter that should have realised by it during

11 its case-in-chief?

12 MR. FARRELL: Absolutely not. The ground of

13 appeal is that the Trial Chamber erred in the exclusion

14 of evidence, that it erred in law with respect to

15 rebuttal or fresh evidence, and the documents are

16 pertinent to a determination of the liability of

17 Mr. Delalic.

18 One of the documents, for example, is that

19 the hand -- what the Prosecution has called the

20 "handover document." It's on November 17th, it's

21 signed by Mr. Delalic, and it hands over authority from

22 the present commander of the prison, Mr. Mucic, to the

23 subsequent commander of the prison, Mr. Delic. It's

24 the Prosecution's submission that these documents are

25 germane to the issue before them and could have

Page 170

1 affected their understanding and the approach -- not

2 only the approach taken but the facts as found.

3 The remedy that was proposed, Your Honour,

4 with respect to -- in the brief was that once the

5 facts -- once there was an error determined and once

6 there was a determination obviously that it wasn't a

7 harmless error because the documents and the witnesses

8 are relevant, after that determination is made, then

9 the next question is: What's the remedy? The normal

10 remedy would be that the matter would be remitted back

11 to the Trial Chamber, in my respectful submission.

12 The -- I'm sorry.

13 JUDGE HUNT: That's all right.

14 MR. FARRELL: The proposal in the

15 Prosecution's appeal brief was that instead of having

16 it remitted back to the Trial Chamber for the sake of

17 23 documents or 21 documents and two sets of documents

18 and three witnesses for a complete new trial that took

19 18 months, that the Appeals Chamber would have the

20 authority to actually, once the determination was made

21 that there was an error and it wasn't a harmless error,

22 that the documents were relevant to a determination

23 before the Trial Chamber, that one option was to have

24 the Appeals Chamber hear the evidence, make findings of

25 fact, and then determine on those findings of fact in

Page 171

1 relation to all the other findings of the Trial

2 Chamber.

3 As a result of the Tadic decision and

4 subsequently indirectly in the Aleksovski decision, the

5 Prosecution understands and takes the view that the

6 Appeals Chamber is not a de novo finding of fact

7 function, that its role is circumscribed to a court of

8 review, and that was indicated and was the position of

9 the Prosecution in Tadic, in light of the need to

10 safeguard the right of appeal of an accused and the

11 Prosecution, that this should go back to a trier of

12 fact.

13 It may have been unclear, and I apologise if

14 it was on behalf of the Prosecution, but it's in the

15 remedy section and it deals with the appropriate remedy

16 if there is a finding, as indicated, of an error of law

17 and it wasn't a harmless error.

18 JUDGE HUNT: Well, then, is this what you are

19 now saying: You say that there was an error of law,

20 the documents which are attached to the submissions

21 will demonstrate that it was an error of law which

22 caused harm to the Prosecution's case, and, therefore,

23 you want a new trial?

24 MR. FARRELL: That's correct.

25 JUDGE HUNT: We're not going to see anything

Page 172

1 more of the evidence other than the documents which are

2 attached to the appeal brief.

3 MR. FARRELL: That's correct.


5 Well, Mr. Ackerman.

6 MR. ACKERMAN: Well, with all respect, Your

7 Honour, the Prosecution, without requesting an

8 opportunity to amend their briefs or anything of that

9 nature, has all of a sudden today, without any notice,

10 basically taken a completely new tack. What they had

11 requested in their briefs was that witnesses be brought

12 before the Trial Chamber and that then the Trial

13 Chamber should consider whether or not these materials

14 should be admitted.

15 Now, clearly they did claim that the Trial

16 Chamber erred in not admitting them either in rebuttal

17 or otherwise.

18 JUDGE HUNT: This is material that you've

19 answered in your submissions.

20 MR. ACKERMAN: I have answered it in my

21 submissions, yes, I have, and then it became clear to

22 me that they had apparently abandoned their option.

23 Now what they're asking is that you consider it as for

24 the purposes of whether or not there ought to be a new

25 trial.

Page 173

1 JUDGE HUNT: Yes. They're limiting the

2 nature of the relief which they seek, that's all.

3 MR. ACKERMAN: I think adding to the nature

4 of the relief that they seek, that they didn't request

5 in their brief.

6 JUDGE HUNT: Well, they have elsewhere. I

7 can't recall whether it was in this particular section,

8 but they have elsewhere sought it in the alternative,

9 that the Appeals Chamber decided or send it back to the

10 Trial Chamber, and I don't see that you would be taken

11 by surprise by the alternative form of relief being

12 raised here.

13 MR. ACKERMAN: The real surprise, Your

14 Honour, is that it was never mentioned at the Status

15 Conference; it's not part of the schedule, not any of

16 the issues that were scheduled for us to hear. They

17 didn't mention it at the Status Conference, and I

18 firmly believe that they had abandoned their efforts.

19 JUDGE HUNT: I don't think you're correct on

20 that. One of the grounds of appeal which we have

21 listed is the one where, as I recall, the argument says

22 the Trial Chamber erred in ruling that they could not

23 lead this material in reply or as fresh evidence, and

24 they put up a fairly brave submission that the

25 Prosecution should not be restricted, as it always

Page 174

1 seems to have been restricted, to putting in its case

2 in its case-in-chief, unless it is something which it

3 could not have foreseen. That's clearly there under

4 these grounds of appeal which have been listed for

5 argument today.

6 So on that basis, I don't think that you're

7 really taken by surprise as to the argument. If you

8 are taken by surprise in relation to the nature of

9 relief which they seek, that is matter which I'm sure

10 we will allow you to put something in writing if you

11 can't deal with it today.

12 MR. ACKERMAN: Your Honour, I can deal with

13 everything today.

14 JUDGE HUNT: I'm sure you can.

15 MR. ACKERMAN: Thank you.


17 JUDGE RIAD: Just a short question,

18 Mr. Farrell.

19 MR. FARRELL: Yes, Your Honour.

20 JUDGE RIAD: You summed up Mr. Delalic's

21 position in your words that he had the authority to

22 communicate and intervene in relation to all parties.

23 That was the summing up.

24 MR. FARRELL: Yes, sir.

25 JUDGE RIAD: Just perhaps for further

Page 175

1 information, you concluded that he had the -- then he

2 had the requisite ability to prevent and punish. He

3 was almost a mid-man. He was always between people.

4 Would that be enough to prevent and punish or to

5 report? What would be your conclusion?

6 MR. FARRELL: Thank you. The position is

7 that as the mid-man, as someone who is essential as the

8 link in this chain and as someone, as is evidenced by

9 the documents, that they are to report right back to

10 him, that he is in a position where he can have a

11 substantial -- I mean obviously it's a substantial

12 influence, the material ability, and that he can by his

13 ability to either take actions himself by indicating

14 it, or if he is not found to be somewhere within the

15 chain of command, he has the authority to report to the

16 appropriate -- he has access to all the appropriate --

17 if the command is the Territorial Defence in Konjic, he

18 has the authority, the links, and the reporting

19 mechanism to them and he is given the authority.

20 If he has to report -- if he can't -- if

21 there is no recourse of action there, he has the

22 ability, obviously, and the links with the supreme

23 command in Sarajevo, who have on two occasions, we

24 know, given him the authority to act on their behalf.

25 With respect to the investigative commission,

Page 176

1 there is evidence that he is -- it appears on the

2 evidence, quite clear from the Trial Chamber, that he

3 is asked to proceed and direct a meeting of the

4 investigative commission and hand over a fax to them

5 indicating what their steps are to do.

6 Obviously he is used as the conduit, as the

7 Trial Chamber says, but not as the conduit without

8 knowledge. You can't have the responsibility of

9 being -- I'm sorry. You can't have the function and

10 power of being some type of person in authority and not

11 have the responsibility that comes with it. And that

12 responsibility, in our respectful submission, is to

13 report. Since he is not, as found by the Trial Chamber

14 on the facts as found, Your Honour, since he is not in

15 the direct chain of command over the subordinates, he

16 would, similar to the other cases we referred to, take

17 steps to report to ensure that there will be steps

18 taken to prevent or punish. That would be the

19 submission, Your Honour.

20 JUDGE RIAD: Thank you very much.

21 MR. FARRELL: Thank you.

22 JUDGE BENNOUNA: [Interpretation] Mr. Farrell,

23 one question for you. I go back to this issue of new

24 evidence. You said, in English, the Chamber erred in

25 excluding evidence, i.e., you said that the Chamber

Page 177

1 choose not to take into account a certain number of

2 documents of evidence and that it erred in that sense.

3 Is that in any way linked to your position on

4 the legal aspect of the issue? If I followed you

5 correctly, when you don't apply the right legal

6 standard, the Chamber errs because it has not chosen to

7 take into account a certain number of facts. Is that

8 exactly what you said or am I misinterpreting you?

9 MR. FARRELL: I think that's a fair

10 submission, that the error in law by the Trial Chamber

11 with respect to the test to be applied to the documents

12 resulted in them excluding documents which they should

13 have considered and which should have been part of

14 their factual finding process. I think that's fair,

15 Your Honour, thank you.

16 JUDGE BENNOUNA: Thank you.

17 JUDGE HUNT: We'll take the break now. We'll

18 resume at 2.35, or for those who understand only the

19 24-hour clock, until 1435.

20 MR. FARRELL: I'm finished, subject to any

21 questions, my submissions, and just to be clear, I

22 will be finished now for the morning and Mr. Staker

23 will be addressing after the break the next Prosecution

24 ground of appeal, Your Honour.

25 JUDGE HUNT: Thank you.

Page 178

1 --- Luncheon recess taken at 1.05 p.m.

























Page 179

1 --- On resuming at 2.40 p.m.

2 MR. MURPHY: Your Honour, I wonder whether I

3 might have just a moment of the Court's time on an

4 administrative matter. Referring to the Court's order

5 on the motion to admit evidence and take judicial

6 notice, the Court indicated that we should cause to be

7 translated two newspaper articles and file them by 4.00

8 today, and also, Your Honour, to translate the decrees

9 of the government of Costa Rica in regard to Judge

10 Odio-Benito's ministerial appointments.

11 JUDGE HUNT: Only if you want us to refer to

12 them.

13 MR. MURPHY: Your Honour, we do. And I want

14 to report, Your Honour, that we have translated the two

15 articles. I've put those on Mr. Hawkins' desk and they

16 are now available.

17 Your Honour, the Prosecution had -- we took

18 responsibility for the press articles, Your Honour, and

19 the Prosecution took responsibility for the decrees.

20 I'm told those are not yet ready, but I've indicated to

21 the Prosecution, Your Honour, that I would have no

22 objection to an extension of time until tomorrow

23 morning for those to be filed, if that's convenient for

24 the Court.

25 JUDGE HUNT: Yes, certainly, but we've got to

Page 180

1 get them in a time to be able to read them before the

2 argument starts, you see.

3 MR. MURPHY: Your Honour, I understand.

4 JUDGE HUNT: Yes, I see. Thank you very

5 much, Mr. Murphy.

6 MR. MURPHY: Much obliged, Your Honour.

7 JUDGE HUNT: Mr. Farrell.

8 MR. FARRELL: Your Honour, regarding the

9 information that you had requested, the case manager,

10 George Huber, is still trying to ascertain some

11 information. But what I can tell you, Your Honour, is

12 that I spoke with the Translation Unit. I expressed,

13 in very grave terms, our concern that these matters be

14 brought before the Court. The Translation Unit

15 indicated that they're looking into bringing people in

16 from the outside, but the best they can do at the

17 moment is the 19th, one week earlier than I had said

18 this morning, the 23rd. They said that they have a

19 number of people working on it and in the 250 pages,

20 taking two -- I'm sorry -- taking nine days, is what it

21 is, from now until that time frame, considering the

22 time -- the days off, is the best they can do.

23 JUDGE HUNT: But may I say this to you.

24 You're obviously going to need the documents to be

25 properly translated for the purposes of your motion.

Page 181

1 At the moment we only are asking you to determine

2 whether you are going to make the motion. And for that

3 purpose, seeing you need an extension of time under

4 115, we would have to have some idea of what it is we

5 are dealing with. Now, that, surely, can be -- you

6 surely can give a succinct description of the material

7 you have based upon what you already have.

8 MR. FARRELL: Yes, sir.

9 JUDGE HUNT: You've had 12 people who are

10 called, I understand, investigators, and they're doing

11 more than just numbering the pages; they're reading

12 them. Indeed, when we suggested that you might supply

13 us with the summaries which they are producing, we were

14 told they contained work product. So there must be

15 something there from which you can provide us with a

16 description of the nature of the evidence which you

17 want to put in so that we know we're not dealing with

18 something completely up in the air.

19 MR. FARRELL: That's fine. Thank you. I was

20 going to address that second.

21 I have spoken with some of the investigators

22 and other members of the team. I have asked for

23 summaries of all the documents. I've asked for a list

24 to accord with Judge Bennouna's request. I expect

25 before the -- certainly before the end of this hearing,

Page 182

1 I will be able to provide -- the office will be able to

2 provide a list of every document that we have, as best

3 as we can identify it, with some title, and a summary

4 of -- I'm not sure how many, but certainly a majority

5 of the documents we will give you a summary.

6 JUDGE HUNT: You have provided us with five

7 documents with proper translations. You were able,

8 actually, to give a brief description of them before

9 you got the translations.

10 MR. FARRELL: Correct.

11 JUDGE HUNT: Well, that's what we're seeking,

12 simply for the purpose of determining whether we extend

13 the time within which you may make the application.

14 MR. FARRELL: Thank you.

15 JUDGE HUNT: Of course, the application

16 itself would have to have the proper documents

17 translated.

18 MR. FARRELL: We will undertake to get as

19 many of the summaries as we can in light of the

20 original --

21 JUDGE HUNT: Well, now, that would bring

22 forward the time that you have to make up your mind

23 whether you want to proceed with this application quite

24 considerably, would it not?

25 MR. FARRELL: It would if we can get the

Page 183

1 summaries and review them and present them to you, we

2 would --

3 JUDGE HUNT: But you have 12 people working

4 on it, and they have been working on it, as I

5 understand, since last Wednesday.

6 MR. FARRELL: Judge Hunt, I should maybe

7 clarify. Once again, I apologise if it's unclear. The

8 12 people are not investigators. They are people

9 within the evidence unit that input, transmit, and

10 summarise documents for identification purposes. They

11 are not anybody who knows about the case nor are they

12 translators. They're people whose function is simply

13 to take every document that comes in from the former

14 conflict in the former Yugoslavia and put an

15 identification number, summarise them to the extent,

16 Your Honour, that they can be identified for search

17 purposes and to then give a proper indexing number on

18 them.

19 So, yes, you're correct that we can certainly

20 use this as a source of information to review it, but I

21 think to be clear, they're not investigators working on

22 this case.

23 JUDGE HUNT: Well, now, bearing in mind that

24 for the purposes of giving you an extension of time, we

25 only need to have a description of this material,

Page 184

1 succinct, but, nevertheless, a description, when do you

2 suggest that you would be ready to give us that?

3 MR. FARRELL: Within -- I'm hoping that

4 within two days we can give you a succinct description

5 of at least all the documents that we think are

6 potentially relevant. I mean, I don't think with them

7 working as they have that we can give you a summary of

8 all 154.

9 JUDGE HUNT: No, no, but you must be able to

10 pick your best.

11 MR. FARRELL: We certainly will.

12 JUDGE HUNT: And you will not be held to that

13 in relation to your potential application. All we want

14 to be satisfied of is that we are giving you this

15 opportunity to file a motion with some prospects that

16 it will produce an issue which we really do have to

17 determine.

18 MR. FARRELL: Fair enough.

19 JUDGE HUNT: Well then, if you say two days,

20 that would mean what, at the end of business on

21 Wednesday.

22 MR. FARRELL: Thank you.

23 JUDGE HUNT: Yes. Well, it's suggested that

24 perhaps we should give you till the first thing on

25 Thursday, but I think Wednesday afternoon, if you can

Page 185

1 get it in, would be better. I prefer to be able to

2 read it before there's any discussion about it.

3 Hopefully Thursday will be our last day of the

4 hearing.

5 Now, this will all be in writing. We'll have

6 some document we can sit down and read, one hopes, and

7 you'll be able to describe in that document why the

8 Trial Chamber, if it had had the material before them,

9 might have been -- would have come to a different

10 conclusion.

11 MR. FARRELL: Excuse me, Judge Hunt, that's

12 the actual Rule 115 motion you're speaking of.

13 JUDGE HUNT: Yes, but I'm not suggesting that

14 you have to put your motion in writing. We just want

15 to have some idea, such as you produced this morning,

16 of where it's relevant to the matters in the judgement.

17 MR. FARRELL: For the purpose of the material

18 on Thursday, for the purposes of the further

19 adjournment.

20 JUDGE HUNT: Yes. But bearing in mind you

21 have an extension of time, you have to demonstrate that

22 it's worth it, which would reveal part of your case at

23 least on the 115 application that we're going to permit

24 you to make --

25 MR. FARRELL: That would be the result.

Page 186

1 JUDGE HUNT: -- if you produce something by

2 Thursday morning at the latest but hopefully by

3 Wednesday afternoon.

4 MR. FARRELL: If that's what's required for

5 the Appeals Chamber to determine the application for this

6 morning, then we'll make every effort to provide it.

7 JUDGE HUNT: Yes. Thank you very much.

8 MR. FARRELL: I'll pass it over to Mr.

9 Staker.

10 JUDGE HUNT: Bearing in mind that the

11 Prosecution needs a variation of the time limit imposed

12 by Rule 115 for a motion to present fresh evidence in

13 the hearing of this appeal, and without intending to

14 lay down any hard and fast rules as to what must be

15 shown in such a motion, the Appeals Chamber believes

16 that it is reasonable to require the Prosecution to

17 file a document by first thing Thursday morning, the

18 8th of June, in which it states whether it proposes to

19 file such a motion, and if so, it describes succinctly

20 the evidence which it proposes to tender; it identifies

21 just how that evidence creates the significance

22 possibility that the Trial Chamber, acting reasonably,

23 would have convicted Mr. Delalic if that evidence had

24 been before it; and it specifies the period within

25 which, acting expeditiously, it will file that motion.

Page 187

1 In the meantime, the Appeals Chamber will

2 treat the Prosecution's appeal against the acquittal of

3 Mr. Delalic as remaining open. If no such document is

4 filed within that time, the Appeals Chamber will treat

5 the Prosecution's appeal as closed.

6 If such a document is filed, the Appeals

7 Chamber will issue a scheduling order for the future

8 conduct of that motion.

9 The Appeals Chamber emphasises that the

10 Prosecution's obligations of disclosure under Rule 66

11 and 68 are still owed to Mr. Delalic, and for that

12 matter, to Mr. Mucic, and it expects full such

13 disclosure to take place at the time when the motion is

14 filed or within such further time as may be allowed.

15 Yes. Well, Mr. Staker, it's your turn, I

16 believe.

17 Yes, Mr. Yapa.

18 MR. YAPA: Your Honours be pleased. I do not

19 know whether I was remiss in my duty this morning when

20 I tendered the document on the order of argument

21 without explaining it. The next stage, there are two

22 grounds of appeal of the Prosecution, grounds 5 and 6,

23 which will be dealt with by Mr. Christopher Staker, and

24 thereafter, I presume that it will be the counsel for

25 Mr. Mucic on ground 7, who will make the --

Page 188

1 JUDGE HUNT: Well, that's now ground 9.

2 MR. YAPA: I'm sorry, Your Honour.

3 JUDGE HUNT: And they have foreshadowed an

4 application to have the same attitude taken towards

5 their appeal as you have had towards yours. So we can

6 deal with those matters which we can, but their appeal

7 would remain open until it has had an opportunity of

8 seeing these documents.

9 MR. YAPA: Yes, Your Honour. Yes.

10 Thereafter, Your Honour, it will be the response of

11 counsel for Mr. Delic, that will be Mr. Moran, who will

12 be making the response in respect of our grounds 5

13 and 6.


15 MR. YAPA: And it will be, thereafter,

16 Mr. Ackerman who will make the response in respect of

17 our grounds 1, 2, and 3.


19 MR. YAPA: Thank you, Your Honour.

20 Mr. Staker will make his submissions now.

21 JUDGE HUNT: Yes, Mr. Staker.

22 MR. STAKER: May it please the Chamber. The

23 Prosecution's fifth ground of appeal relates to the

24 Trial Chamber's finding that Hazim Delic was not liable

25 as a superior under Article 7(3) of the Statute.

Page 189

1 Mr. Delic was accordingly acquitted of the charges in

2 the indictment to the extent that they charged him with

3 responsibility as superior for acts committed in the

4 Celebici prison camp.

5 The relief sought by the Prosecution in

6 relation to this ground is set out in paragraph 8.1,

7 subparagraphs 4 and 5 of the Prosecution appeal brief.

8 The Prosecution seeks the reversal of the acquittals on

9 the accounts there mentioned. In relation to the

10 relief sought, I would also refer the Chamber to

11 paragraph --

12 THE INTERPRETER: Could we ask Mr. Staker to

13 speak a little more slowly, please.

14 JUDGE HUNT: You're also being asked to speak

15 more slowly.

16 MR. STAKER: Thank you, Your Honour.

17 I would refer also to paragraph 6.22 and 6.23

18 of the Prosecution appeal brief, which makes clear the

19 point, of course, that to the extent that any

20 subordinate of Mr. Delic was found not guilty on any

21 account, that Mr. Delic couldn't be found guilty as a

22 superior in relation to that count.

23 In this case, we submit the Trial Chamber

24 found that Mr. Delic was the deputy commander of the

25 Celebici camp. The relevant parts of the Trial

Page 190

1 Chamber's judgement in which these findings were made

2 are set out in paragraphs 6.12 to 6.14 of the

3 Prosecution appeal brief, and we understand that this

4 finding of fact is in fact conceded by Mr. Delic in his

5 response brief at paragraph 245, and we therefore

6 submit that this appeal proceeds on the basis that

7 Mr. Delic was the deputy commander of the Celebici

8 prison camp.

9 In essence, what the Trial Chamber found was

10 that Mr. Delic was not criminally liable as a superior

11 because there was no evidence that he lay in a specific

12 chain of command between the guards committing the

13 crimes and Mr. Mucic, who was the -- who was found to

14 be the commander of the prison camp. The Trial Chamber

15 therefore appears to have considered the possibility

16 that there was a chain of command going from the guards

17 directly to the prison commander that bypassed the

18 deputy commander.

19 As the Trial Chamber said, and I would just

20 quote briefly from paragraph 810 of the judgement:

21 "After having reviewed the relevant

22 evidence before it, the Trial Chamber finds that the

23 Prosecution has failed to establish beyond reasonable

24 doubt, that Hazim Delic lay within the chain of command

25 in the Celebici prison camp, with the power to issue

Page 191

1 orders to subordinates or to prevent or punish criminal

2 acts of subordinates. Accordingly, he cannot be found

3 to have been a "superior" for the purposes of ascribing

4 criminal responsibility to him under Article 7(3) of

5 the Statute."

6 We submit that it's apparent from this

7 passage that the Trial Chamber treated the superior

8 responsibility of Mr. Delic as turning on whether or

9 not he lay within a specific chain of command between

10 the guards and Mr. Mucic. This reflects the Trial

11 Chamber's finding at paragraph 647 of its judgement,

12 where it said that "The Trial Chamber is unable to

13 agree with the submission of the Prosecution that a

14 chain of command is not a necessary requirement for [sic] the

15 exercise of superior authority."

16 Now, my colleague Mr. Fenrick has presented

17 the Prosecution's submissions on the legal principles

18 governing superior responsibility, and these are also

19 dealt with at length in our written submissions. For

20 the reasons that have been given, the Prosecution's

21 submission is that superior responsibility arises from

22 the power to control the perpetrators in the

23 circumstances, and can arise even in the absence of a

24 direct chain of command between the accused and the

25 subordinate. However, it's also our submission that

Page 192

1 even if the legal test applied by the Trial Chamber

2 were accepted as the applicable test, that the Trial

3 Chamber incorrectly applied that test to the

4 circumstances of this case.

5 Mr. Fenrick also presented the Prosecution's

6 submissions that superior responsibility can arise on

7 the basis of de facto as well as de jure authority. In

8 that connection, I would also make reference to the

9 recent decision of the Appeals Chamber in the

10 Aleksovski appeal, at paragraph 76, where the

11 possibility of de facto superior authority was

12 recognised as a possibility in the case of civilian

13 commanders as well as military commanders. This

14 possibility was dealt with in particular at paragraphs

15 354, 378, and 376 of the Trial Chamber's judgement.

16 Perhaps it's unnecessary to quote those

17 paragraphs at length, but the formulations used in

18 those paragraphs include wording, for instance:

19 "It is necessary that the superior have

20 effective control over the persons committing the

21 underlying violations the sense of having the

22 material ability to prevent and punish the commission

23 of these offences."

24 And at paragraph 736 it's again stated that:

25 "It will be further observed that whereas

Page 193

1 formal appointment is an important aspect of the

2 exercise of command authority or superior authority,

3 the actual exercise of authority in the absence of a

4 formal appointment is sufficient for the purpose of

5 incurring criminal responsibility. Accordingly, the

6 factor critical to the exercise of command

7 responsibility is the actual possession,or

8 non-possession,of powers of control over the actions of

9 subordinates. Hence, where there is de facto control

10 and actual exercise of command, the absence of de jure

11 authority is irrelevant to the question of a [sic] superior's

12 criminal responsibility for the criminal acts of his

13 subordinates."

14 So the test enunciated by the Trial Chamber

15 itself in this case was a test of effective control or

16 of actual exercise of authority or of material ability

17 to prevent and punish, and not a test of formal or de

18 jure chain of command.

19 So in relation to the specific case of Hazim

20 Delic, the question is: Did he have de facto or de

21 jure effective control or actual exercise of authority

22 over the guards in the camp?

23 The evidence and findings of fact in respect

24 of this are dealt with by the Trial Chamber beginning

25 at paragraph 798. Paragraph 798 and 799, there the

Page 194

1 Trial Chamber refers to evidence that the detainees

2 regarded Mr. Delic as the commander or superior of the

3 guards and evidence that the guards referred to

4 Mr. Delic as "the boss."

5 At paragraph 803 there is set out further

6 evidence that Mr. Delic gave orders to the guards, that

7 the guards obeyed him and even feared him, and that

8 Mr. Delic would occasionally severely criticise or

9 shout at the guards.

10 Paragraphs 804 and 805 set out evidence that

11 he ordered guards to mistreat the detainees. In

12 relation to the incident referred to in the former of

13 those two paragraphs, paragraph 804, the Trial Chamber

14 found that it had not been proved that the beatings had

15 been ordered by Mr. Delic, but in relation to the

16 incident referred to in the second of those two

17 paragraphs, paragraph 805, two witnesses testified that

18 Mr. Delic ordered or commanded the guards in the

19 collective beating, and the Trial Chamber made no

20 finding that this evidence was unreliable.

21 Further evidence is also referred to in

22 paragraphs 801 and 802, although this evidence was

23 given by Mr. Delic's co-accused, Mr. Landzo, on which

24 the Trial Chamber found it did not rely unless

25 supported by other evidence.

Page 195

1 Furthermore, as I already said, it was found

2 that Mr. Delic was the deputy commander of the prison.

3 In other words, after Mr. Mucic, Mr. Delic was the most

4 important and influential person in the camp with

5 organisational functions in respect of running of the

6 camp, which were set out in paragraphs 807 to 809 of

7 the Trial Chamber's judgement.

8 The Trial Chamber concluded that all of this

9 evidence was insufficient to establish Mr. Delic's

10 superior responsibility. Its specific finding is at

11 paragraph 806 of the judgement, where it says:

12 "In conclusion, this evidence is indicative

13 of a degree of influence Hazim Delic had in the

14 Celebici prison-camp on some occasions..... However, this

15 influence could be attributable to the guards' fear of

16 an intimidating and morally delinquent individual who

17 was the instigator of and a participant in the mistreatment

18 of detainees, and is not, on the facts before this...

19 Chamber, of itself indicative of the superior authority

20 of Mr. Delic sufficient to attribute superior

21 responsibility to him."

22 The Prosecution submits that this finding is

23 unreasonable in the sense that no reasonable trier of

24 fact could have reached this conclusion on the evidence

25 before the Trial Chamber.

Page 196

1 The evaluation of the evidence in relation to

2 Mr. Delic can be contrasted with the approach that the

3 Trial Chamber took in relation to Mr. Mucic, whom the

4 Trial Chamber found on the evidence before it to be the

5 de facto commander of the camp. In evaluating this

6 evidence, the Trial Chamber said, and I would quote

7 here from paragraph 750 of the judgement:

8 "It seems inescapable, from the testimony of

9 all the detainees that they acknowledged Zdravko Mucic

10 as the prison-camp commander. The detainees came to

11 this conclusion because Hazim Delic called him the

12 commander, or because Mr. Mucic introduced himself as

13 the commander, or because his behaviour towards the

14 guards was that of a commander. The Trial Chamber

15 considers the last of these factors the most

16 significant for the purposes of ascribing superior

17 authority. Concisely stated, everything about

18 Mr. Mucic contained the indicia and hallmark of a de

19 facto exercise of authority. Even in the absence of

20 explicit de jure authority, a superior's exercise of de

21 facto control may subject him to criminal liability for

22 the acts of his subordinates. Where the position of

23 Mr. Mucic manifests all the powers and functions of a

24 formal appointment, it is idle to contend otherwise."

25 That's the end of the quote.

Page 197

1 Now, if similar reasoning is applied to the

2 evidence in relation to Mr. Delic, what inference must

3 be drawn? We have the person who is the deputy

4 commander of the camp. He's perceived by the detainees

5 to be the commander of the guards, he gives orders to

6 the guards, he's obeyed by the guards, and he's

7 referred to by the guards as "the boss." The

8 Prosecution submits that the only reasonable inference

9 that the Trial Chamber could have drawn from this

10 evidence was that de facto, if not de jure, Mr. Delic,

11 as the deputy commander of the camp, exercised actual

12 authority over the guards.

13 The conclusions that the guards only obeyed

14 his orders because they feared him as an intimidating

15 and morally delinquent individual is, in our

16 submission, not a conclusion which any reasonable trier

17 of fact could draw from the evidence. In any event,

18 even if subordinates do fear their superior as an

19 intimidating individual, this is irrelevant to the

20 superior's status as a superior.

21 The issue here is whether Mr. Delic, the

22 deputy commander of the camp, in fact exercised

23 effective authority over the guards, de facto or de

24 jure, and it's submitted that the only reasonable

25 conclusion is yes. Whether or not it was officially or

Page 198

1 formally the duty of the deputy commander of the camp

2 to exercise that function, de facto the deputy of the

3 commander did exercise that function, and there was

4 thus a de facto chain of command between the guards,

5 Mr. Delic, and Mr. Mucic.

6 For Mr. Delic to be responsible as a superior

7 under Article 7(3) for the crimes committed by the

8 guards in the camp, it's also necessary to establish

9 that he had reason to know of these crimes and failed

10 to prevent or punish them. This is dealt with in the

11 Prosecution appeal brief at paragraphs 6.18 to 6.21.

12 It's conceded that because the Trial Chamber

13 concluded that Mr. Delic was not a superior for the

14 purposes of Article 7(3), it declined to make findings

15 on these issues. That was stated at paragraph 810 of

16 the judgement. However, the Prosecution submits that

17 on the findings of fact made by the Trial Chamber in

18 the case as a whole, no reasonable conclusion could

19 have been drawn by any trier of fact other than that

20 these elements of superior responsibility were

21 satisfied, and on this basis the Prosecution submits

22 that it's possible for the Appeals Chamber to

23 substitute verdicts of guilty on the Article 7(3)

24 counts in the case of Mr. Delic.

25 Unless the Chamber has any questions in

Page 199

1 relation to that ground of appeal, I propose to move to

2 the Prosecution's ground 6.

3 May it please the Chamber. The Prosecution 6th

4 ground of appeal relates to the Trial Chamber's finding

5 that Mr. Delic was not liable as charged in Count 48 for

6 the unlawful confinement of civilians in the Celebici

7 camp. Mr. Delic was charged under both Article 7(1),

8 and Article 7(3) in respect of this crime, and although

9 this ground of appeal has been included in group 1 of

10 the issues for the purposes of oral argument, in fact

11 the Prosecution's principal argument in relation to

12 this ground of appeal is based on Article 7(1) in

13 particular.

14 The Trial Chamber found that civilians were

15 unlawfully confined in the Celebici camp, and it

16 further found that Mr. Mucic, the commander of the

17 prison, was guilty of their unlawful confinement.

18 Mr. Delic, the deputy commander, was similarly charged

19 but was found not guilty for the simple reason that the

20 Prosecution had failed to demonstrate that Mr. Delic

21 was in a position to effect the continued detention of

22 civilians in the Celebici camp.

23 That finding was made at paragraph 1144 of

24 the Trial Chamber's judgement. It said in that

25 paragraph that because of that circumstance, Mr. Delic

Page 200

1 cannot be deemed to have participated in the offence.

2 The Prosecution submits that as a matter of

3 law, this reasoning contains a plain error. It assumes

4 that only persons who had the authority to order the

5 release of detainees from the camp could be liable for

6 their unlawful confinement. In other words, the Trial

7 Chamber treated the power to effect the release of the

8 victim as an element of the crime. The Prosecution

9 submits that this is not an element of the crime of

10 unlawful confinement of civilians.

11 The unlawful confinement of a large number of

12 civilians, as occurred in this case, is obviously

13 something which no individual can effect

14 single-handedly. The continued detention of so many

15 people could only be effected by a body of camp

16 personnel and others acting in concert.

17 As noted in the Prosecution appeal brief, any

18 detainee who had attempted to leave the camp would have

19 been prevented from so doing not by the camp commander

20 but by one of the camp guards.

21 The most immediate cause of each detainees

22 confinement and the most immediate obstacle to their

23 liberty was thus the camp guards, and the reality is

24 that all of the victims could have simply walked out of

25 the camp at any time if the guards hadn't been there to

Page 201

1 prevent them from so doing.

2 I submit there may be an analogy with the kind

3 of situation that arose in the Erdemovic case, where an individual

4 subordinate is ordered in that case to kill numbers of victims.

5 Now, it may be that the accused was acting

6 under superior orders and it may be the accused had no

7 choice over who the victims would be and who would be

8 killed and who would be released, but that doesn't

9 affect the criminal liability of the accused.

10 We would submit here that if an individual

11 camp guard is standing at the door of a building in the

12 camp, and by standing there is preventing civilians

13 within that building from leaving, that individual camp

14 guard is detaining those civilians, which is the actus

15 reus of the crime of law of unlawful confinement of

16 civilians, and we would say that the guard would be

17 found guilty of that crime, even an individual guard,

18 provided that the guard had the necessary mens rea.

19 To have the requisite mens rea, the

20 individual guard or other member of the camp personnel,

21 in our submission, would need to know that the

22 detainees in the camp were being unlawfully confined

23 and must, nonetheless, have continued to participate in

24 the illegal confinement of those people.

25 By saying that the individual guard must have

Page 202

1 known that they were unlawfully confined, I don't mean

2 that the guard must necessarily have known what the law

3 is because ignorance of the law is not universally

4 recognised as a defence to a criminal charge.

5 An accused committing grave breaches of the

6 Geneva Conventions, in our submission, should not escape

7 criminal liability merely because the accused says that

8 he or she has never heard of the Geneva Conventions or

9 doesn't know what their provisions are. This is a

10 matter which is dealt with in more detail in paragraphs

11 8.12 to 8.18 of the Prosecution response brief.

12 In our submission, it's enough that the

13 individual guard knows, for instance, that the

14 detainees are civilians associated to the opposing

15 party in the armed conflict, knows that they pose no

16 threat to the state, and knows that they are only being

17 detained as a collective measure and not as a

18 legitimate security measure, and if that's established,

19 the Prosecution submits that there is the necessary mens

20 rea.

21 If an individual guard has this knowledge

22 and, nonetheless, continues to participate in the

23 detention, he or she may be criminally liable. As I

24 say, superior orders are not a defence to a crime under

25 the Statute.

Page 203

1 The Prosecution submits that the position of

2 the Prosecution and that of Mr. Delic on this issue

3 may, in fact, not be all that far apart. It is

4 conceded that the individual personnel, particularly

5 those at the lowest level in the camp, may have little

6 knowledge of the individual circumstances of the

7 detainees and may not be in a position where they could

8 reasonably be expected to have any idea of the

9 particular circumstances or background to why the

10 detainees happen to be there.

11 And on this issue, I would quote directly

12 from paragraph 265 of the response brief filed on

13 behalf of Mr. Delic, at Registry pages A2393 to A2392.

14 This paragraph says and I quote: "At some point, it

15 becomes clear that confinement is unlawful, just as it

16 becomes clear that a military order is unlawful.

17 Clearly, the confinement in the Auschwitz concentration

18 camp in [sic] World War II was illegal. Guards who unloaded

19 trains, separated men from women, oversaw the

20 selection process and herded the sick and old to the

21 gas chambers could not believe that they were engaged

22 in lawful activity.

23 "Just as clearly, the warden of a prison who

24 accepts an inmate based on a judgement of a competent

25 court is acting legally even if that judgement is later

Page 204

1 overturned on appeal.

2 The instant case falls somewhere between the

3 two extremes".

4 Well, even accepting that, the question then

5 is: In this case which side of the line does Mr. Delic

6 fall? The evidence of Mr. Delic's knowledge on which

7 the Prosecution relies is set out in 7.16 of the

8 Prosecution appeal brief and paragraph 7.5 of the

9 Prosecution reply brief.

10 The Prosecution submits that on the basis of

11 that evidence, the only reasonable conclusion that

12 could have been drawn by the Trial Chamber is that

13 Mr. Delic, like Mr. Mucic, was aware that the civilians

14 detained in the camp were detained on the basis of

15 their ethnic background and their detention was not a

16 legitimate security measure, and to the extent that the

17 detention of any of the detainees might have been

18 originally justified by any security concern, that no

19 proper inquiry had been undertaken into their status to

20 ensure that those civilians who could not be lawfully

21 detained were immediately released.

22 Those are the Prosecution's submissions into

23 Mr. Delic's liability under Article 7(1).

24 In relation to his liability under

25 Article 7(3), the appeal, to that extent, would lie on

Page 205

1 a finding that there were subordinates of Mr. Delic who

2 committed the crime of unlawful confinement of

3 civilians. So, of course, to that extent, it's

4 dependent also on the outcome of the fifth ground of

5 appeal relating to his status as a superior.

6 It also depends on a finding then that there

7 were individual guards within the camp, of which

8 Mr. Delic was the superior, who also had the requisite

9 degree of knowledge that would make them criminally

10 liable for such a crime so that Mr. Delic could incur

11 criminal liability as a superior.

12 The Prosecution concedes that the Trial

13 Chamber made no express finding to the effect that

14 there were individual guards who had knowledge of the

15 facts that the civilians there were being detained in

16 circumstances which would render that detention

17 unlawful.

18 The Prosecution submits, however, that on the

19 basis of the evidence as a whole, the inference must be

20 drawn that at least some of the guards must have been

21 aware of this.

22 To give one example, in paragraph 1269 of the

23 Trial Chamber's judgement, the testimony of one witness

24 is referred to, which is not rejected by the Trial

25 Chamber, "that at one stage Mr. Delic walked into

Page 206

1 Hangar Number 6 and told us that we were [sic] all detained

2 because we were Serbs." There thus appears to be no

3 suggestion that the circumstances of the detainees

4 within the camp was a matter that was secret or

5 confidential in any way.

6 Given also the composition of the detainees,

7 for instance, the fact that it included elderly men of

8 60 or 70 years of age, and in respect of that I would

9 refer to the Trial Chamber's judgement at paragraphs

10 823, 839, 850, and 982, and given the way that the

11 detainees were being treated, it's submitted that the

12 only reasonable inference would be that the guards, or

13 at least some of them, were aware that this was a kind

14 of collective measure aimed at the detainees on the

15 basis of their ethnic background and not a legitimate

16 security measure.

17 However, if the Appeals Chamber doesn't

18 accept that this is the only reasonable inference that

19 can be drawn in respect to in the evidence before the

20 Trial Chamber, the Prosecution would request that the

21 acquittal on Count 48 be reversed to the extent of the

22 alleged liability under Article 7(1) of the Statute

23 even if not under Article 7(3) as well.

24 Those are the Prosecution's submissions on the

25 Prosecution's sixth ground of appeal.

Page 207

1 JUDGE HUNT: Thank you, Mr. Staker.

2 Now, Mr. Moran.

3 MR. MORAN: Thank you, Your Honour. If I

4 might have a second to get organised.


6 MR. MORAN: May it please the Court. Your

7 Honour, I'm Tom Moran, and along with Salih Karabdic, I

8 represent Hazim Delic in this case.

9 I would first like to talk about command

10 responsibility, and, frankly, I think both sides have

11 written more on command responsibility than the Appeals

12 Chamber wants to read, and it's been pretty well

13 briefed.

14 What I'd like to do is just clear up, I

15 think, some ambiguities we may have had and be

16 available to answer questions for the Court.

17 Command responsibility, simply put, holds a

18 commander or a person liable for the criminal acts of

19 others, even if he has no connection with those acts.

20 It's a vicarious type of liability that's different

21 from a personal responsibility which could be on a

22 commander or any other person who orders a crime, aids

23 and abets it, takes part in it, encourages it.

24 The doctrine of command responsibility

25 traditionally has been a rapier, something used at a

Page 208

1 point target. The Prosecutor wants to turn it into

2 some kind of a two-handed broadsword to hold people

3 criminally liable when they can't find any other way to

4 do it.

5 The theory behind the legal doctrine is based

6 on the nature of command. The first real command

7 responsibility document I found is cited in

8 paragraph 40 of my brief. It's a regulation adopted by

9 the United States Continental Congress in 1775, holding

10 commanders responsible for the acts of their

11 subordinates on a march if they looted, stole chickens,

12 things like that. It said if they didn't punish them,

13 then the commander would be held liable just as if he

14 committed the offence.

15 The basis of military command is that the

16 commander is responsible for everything his unit does

17 or fails to do. Command is the personal authority to

18 enforce the will on subordinates. Commanders can

19 delegate that responsibility -- or that authority,

20 rather, but they can never delegate the

21 responsibility. The responsibility remains with the

22 commander, not the Chief of Staff, not the first

23 Sergeant, not the chaplain, with the commander. In

24 fact, The Hague convention and the first three Geneva

25 Conventions from 1949, when they're talking about what

Page 209

1 is a legitimate belligerent, requires that these units

2 be commanded by a commander responsible for his

3 subordinates.

4 Literally on my way to the airport to come

5 here, I picked up a book just to read on the aeroplane,

6 an autobiography written by an Admiral of the United

7 States Navy in World War II, and there's a little

8 something that he said in there that I thought I would

9 read to the Appeals Chamber.

10 When he became commander of a ship, one of

11 his subordinates issued an order which, if it wasn't

12 illegal, was really stupid and could have got the

13 Captain relieved, and it was put into effect. The

14 minute he found out about it, he stopped it. He says

15 in his autobiography: "Of course, I knew nothing about

16 this order and would never have sanctioned it if I had

17 known, but it happened on my ship. It was my duty to

18 indoctrinate all officers of that ship so they wouldn't

19 think of doing any such stupid thing, to organise the

20 ship so such an order could not have been issued

21 without my knowledge, and to supervise what went on on

22 the ship closely enough so that I would soon find out

23 if such a blunder were committed. For failure in all

24 these respects, it would have been my duty to take the

25 rap."

Page 210

1 That is command, Your Honours.

2 The scope of a commander's legal

3 responsibility under a command-responsibility theory is

4 coextensive with his authority. The broader the

5 commander's authority, the broader his duty. For

6 instance, the hostages case and the high command case

7 which Commander Fenrick [sic] talked about earlier

8 today made a distinction between an occupation

9 commander who has the full authority of the state to

10 exercise authority within a given area and a tactical

11 commander.

12 For instance, in the high command case, Field

13 Marshall von Leeb was held by the court not to be

14 responsible for abuses of prisoners of war because he

15 had no responsibility in that area.

16 Commander Fenrick [sic] and I seem to

17 disagree on whether or not Articles 86 and 87 are

18 codifications of the traditional Rule. However, we do

19 agree that you generally have to look to customary

20 international law, especially the post World War II

21 cases, the high command case and the hostages case, to

22 determine when a person is liable under a

23 command-responsibility theory.

24 The Prosecution relies specifically on three

25 cases to talk about command responsibility based on an

Page 211

1 influence theory. Two of them came out of the Tokyo

2 tribunals. One was the conviction of General Muto and

3 the other was the conviction of the Foreign Minister

4 Hiroto. Let me just read something that was written by

5 a commentator about that, about the Tokyo Tribunal. It

6 says: "Because the Tokyo decision stands alone, its

7 presciencial value is ambiguous. It is unclear, on the

8 basis of the decision, whether one could conclude the

9 political and bureaucratic leaders have exactly the

10 same responsibility as do military leaders for the acts

11 of their subordinates. One reason why command

12 responsibility doctrine may differ for military

13 commanders and the others is that military commanders

14 do exercise command. They have control over

15 subordinates and a rigid hierarchical system with

16 disciplinary powers and the authority to order

17 subordinates. The scope of this military authority

18 includes the power to order subordinates to risk their

19 own lives, most bureaucratic leaders do not wield the

20 same type of life-and-death authority."

21 I agree with that completely.

22 When Mr. Fenrick wrote that in 1995, he was

23 absolutely right. He's still absolutely right today.

24 I think that the Tokyo decision is ambiguous, and

25 its -- even if it is not, it stands alone, when you

Page 212

1 look at the other case law and the other customary law

2 on command responsibility, for holding non-commanders,

3 such as General Muto, liable on a

4 command-responsibility theory.

5 Clearly non-military people can be held

6 liable on a command-responsibility theory. I think

7 there is no question about that. But it is going to

8 have to be someone who has -- who is exercising powers

9 over subordinates which are substantially similar to

10 those of military commanders. That is going to be the

11 rare civilian indeed. It's going to be people like

12 high-ranking police supervisors, possibly high-ranking

13 bureaucrats that have policy-making powers and have the

14 powers to have substantial disciplinary action against

15 their subordinates.

16 Probably the best example of the superior is

17 in the Aleksovski case. He's the warden of a prison,

18 he was appointed the warden of a prison, he had the

19 authority over everything in that prison, and it didn't

20 make any difference whether he was military or civilian

21 so long as he had that kind of personal authority.

22 Let's talk about what a superior is not. A

23 superior is not necessarily someone who just holds a

24 higher rank than the person committing the crime. An

25 example would be the Chief of Staff in a military

Page 213

1 unit. We know from the high command case and the

2 hostages case that the Chief of Staff is not criminally

3 liable on a command-responsibility theory even for his

4 own subordinates on the staff. The Court says he's not

5 liable because he lacks command authority. Yet that

6 Chief of Staff, by the very nature of his rank, is

7 going to be the senior person to many or most of the

8 unit's commanders. He will clearly be senior to every

9 company commander in the division and probably every

10 battalion commander and likely every brigade commander

11 or regimental commander.

12 Therefore, you have to look for the existence

13 of that personal power, that personal authority; not

14 delegated authority, not the authority that is

15 delegated from a commander to a staff officer or a

16 subordinate; the authority that is inherent in the

17 status of command.

18 I think every one of us that's ever been a

19 staff officer in any army at some point in our lives

20 signed a document for the commander. I know I did.

21 And most of the time the commander never saw it. But

22 it was his order. He was responsible for it. Now, if

23 I made a mistake, I was responsible to him, but I did

24 not have any command authority. All I had was what the

25 colonel gave me. It's the same in any military.

Page 214

1 "Superior" doesn't mean someone who, through

2 some sort of force of personality, exercises some kind

3 of unofficial control over other people in a unit or in

4 a bureaucracy. It can't be that way for two reasons:

5 One, it could relieve that commander, that de jure

6 commander, of his responsibility. He could sit there

7 and say, "I couldn't control Ratko Mladic. He was out

8 of control. He is a stronger personality than I am."

9 That command responsibility has to reside with that

10 commander, and no one else.

11 As you can tell from reading my briefs, I

12 think I have -- the biggest problem I have with the

13 Trial Chamber's decision is this concept of de facto

14 commander, and the reason is that I'm not sure what one

15 is. If a de facto commander is someone like

16 Aleksovski, who was a civilian that was exercising the

17 same kinds of authority as a military commander,

18 without the title, then that's not a problem. And you

19 would also see, I think, de facto command more in an

20 internal armed conflict, where a rebel force would not

21 have the law to appoint a de jure commander. Whoever

22 is in command there is going to be a de facto commander

23 pretty much by definition. But when you start applying

24 this to people that may be exercising delegated

25 authority or may, through sheer force of personality or

Page 215

1 other means, have influence, have control over troops,

2 you're muddying the entire concept.

3 Influence. I'm not sure what is sufficient

4 influence. This is a concept that I don't know how you

5 develop a legal test on. I don't think anybody does.

6 How do I know when this person had sufficient

7 influence, doesn't have sufficient influence, to be

8 held liable on a command responsibility theory under

9 the Prosecutor's view of the law?

10 Clearly, again in a military unit, the most

11 influential person in that unit other than the

12 commander is probably the chief of staff. He sits at

13 the commander's right hand. He is in charge of the

14 day-to-day running operations of the staff, which in

15 turn, do all of the things that the commander doesn't

16 have time to do. And yet that influential person is

17 not liable under a command responsibility theory.

18 If it's just powers of substantial influence,

19 I'll give you an example of one where you would have to

20 have substantial influence; that is, the staff judge

21 advocate of a military unit, the commander's lawyer.

22 If that lawyer doesn't have influence, and substantial

23 influence, on the commander, the commander ought to

24 fire him and get somebody who does have influence,

25 whose advice he does trust. And yet under the

Page 216

1 Prosecutor's view, the staff judge advocate, who by

2 definition is a subordinate with no command authority,

3 could be the commander's superior if he exercises that

4 kind of influence. That's turning the entire process

5 on its head.

6 In criminal law we need to have some

7 certainty, and we should construe criminal laws

8 narrowly. Under this influence theory as put forward

9 by the Prosecution, I don't know how you could have any

10 certainty in the law on when someone is criminally

11 liable based on influence. The Prosecutors themselves

12 say you have to look at it on a case-by-case basis. If

13 you have to look at it case-by-case, there is just a

14 complete lack of certainty.

15 Knowledge is really not a factor in this

16 case, the knowledge available to a commander and the

17 knowledge that a commander has. The Prosecution, I

18 think, wants the Appeals Chamber -- somebody was

19 talking about academic exercise. It may have been

20 Judge Hunt, it may have been one of the Prosecutors. I

21 don't think that's something that the Appeals Chamber

22 needs to write on. But if you do, I think the starting

23 point is Article 7(3) of the Statute.

24 And if I could digress just slightly to talk

25 about the status of the Statute, exactly what the

Page 217

1 Statute is, it's my position that the Statute does not

2 create crimes, does not define crimes. Those are

3 defined by other laws. The Secretary-General made that

4 clear in his report to the Security Council. What the

5 Statute does is create a court to try allegations of

6 violations of certain laws, in certain times, in

7 certain places, and give that court jurisdiction.

8 The words in Article 7(3) are "knew or had

9 reason to know that the subordinate was about to commit

10 such acts." That is different from the standard in the

11 high command case. In the high command case, the Court

12 held that a commander has the duty to get reports, and

13 if the reports aren't sufficient, he's derelict in his

14 duty and that's not going to be a defence.

15 I think there's no question that a commander

16 on any level is imputed with all of the knowledge in

17 his headquarters. That's the only way that the system

18 and the law can work.

19 A good example of that is the My Lai cases,

20 which I cited at some length. The company commander

21 knew that there was a massacre going on, and as soon as

22 he knew about it, he used his best means of

23 communications to stop it. That's the kind of

24 knowledge that Article 7(3) has, either imputed

25 knowledge, knowledge that would allow this person to

Page 218

1 understand that there are crimes going on. I don't

2 think Article 7(3), which vests the Tribunal with

3 jurisdiction on command responsibility cases,

4 authorises you to look further than the knowledge that

5 was actually available to the commander and what he

6 could and should have been able to do with that

7 knowledge.

8 Going over the Prosecutor's argument just a

9 little bit, since -- punish. Different commanders have

10 different abilities to punish.

11 In the militaries that I'm familiar with,

12 non-commanders do not have the ability to impose

13 punishment in a legal means. They may be able to take

14 them out behind the barracks and beat them up, but they

15 don't have the authority to impose legal sanctions.

16 Mr. Fenrick talked about a doctrine called

17 command influence. Command influence -- and I wasn't

18 going to talk about it, but I think I probably should,

19 because it came out here. It had to do with a

20 commander's ability to interfere with military justice,

21 the discipline within the military. With the

22 militaries that I'm familiar with -- and I'm sure not

23 going to tell you that I'm an expert on every military

24 in the world -- it's the commander that decides whether

25 or not someone will be court-martialled, someone will

Page 219

1 be tried for a crime. It's not the staff advocate,

2 it's not the military judge. It's the commander that

3 convenes the court and decides what the charges will

4 be.

5 The doctrine of command influence simply says

6 that that commander cannot influence the result. The

7 commander cannot get what the members of the court, de

8 jure, if you would, and say, "Vote guilty," "Vote not

9 guilty." That's illegal command influence. The

10 commander has legitimate influence, legitimate

11 authority, the power to decide whether or not charges

12 will be filed and whether or not this Prosecution will

13 go on, another reason why command responsibility,

14 criminal liability, is limited to commanders and no one

15 else.

16 Chain of command. The chain of command is

17 simple. It's a chain from commander to commander to

18 commander, from the highest level to the lowest level.

19 People who are not commanders are not in a chain of

20 command. It's just that simple. Therefore, people who

21 are not commanders don't -- should not be held liable

22 on that command responsibility theory.

23 Mr. Ackerman is going to talk about this at

24 some length, but let me -- I've noticed in my notes the

25 Prosecution talked about a link, one person being a

Page 220

1 link between the investigating commission, the supreme

2 command, the municipal government in the Konjic area,

3 and therefore he had influence and he was a superior

4 within the meaning of the doctrine of command

5 responsibility. Just because a person is a link does

6 not make him a commander or a superior. A liaison

7 officer is a link. The radio telephone operator is a

8 link. The fellow that drives the Jeep carrying the

9 messages is a link. The chief of staff is a link. The

10 chief of staff's job is to put all this information

11 together for the commander so that the commander can

12 understand what is going on.

13 Mr. Staker was talking about directly

14 involving Mr. Delic, that we agree he was a deputy

15 commander. We do agree that he was a deputy commander

16 at the times relevant to the indictment. And in fact,

17 sometime after the events alleged in the indictment, he

18 became the commander for a short period of time. There

19 is nothing in the indictment, nothing in the judgement,

20 which is relevant to his time as commander.

21 The fact that he is perceived by the

22 detainees as the commander of the guards is absolutely

23 irrelevant to anything. The fact that he could give

24 orders to the guards does not necessarily show he was a

25 commander. There is this delegated authority that the

Page 221

1 Chief of Staff has, that other people have, that we

2 talked about in command. The fact they called him

3 boss, I don't think that makes any difference.

4 When you're deciding the issue on Mr. Delic,

5 one of the things I think the Court needs to recall is

6 that in the high command case, dealing with the Chief

7 of Staff for an army group, the Court specifically said

8 that the Chief of Staff is not responsible for his own

9 subordinates on the staff, the people that report to

10 him, and the reason he was not held criminally liable

11 for their acts is because he was not a commander; he

12 lacked command responsibility. He was, if anything, a

13 supervisor.

14 Unlawful confinement. Then I'm going to sit

15 down. I'm not going to take too much more time here.

16 The unlawful confinement count centres not on the

17 conditions of confinement but the fact of confinement

18 itself. I don't know of a civilised society -- and as

19 soon as I say that, I'm sure there will be one.

20 Someone will point one out to me -- where the people

21 that run gaols, that run prisons, also make the

22 decisions on who goes in and out of that prison.

23 Clearly, Mr. McFadden, the commander of the UN

24 Detention Unit, does not go behind an order from this

25 Court on whether or not someone should be

Page 222

1 incarcerated. If a judge on this Court, or the

2 authorities here, make a mistake on the existence of

3 probable cause, Mr. McFadden doesn't care. All he

4 cares is that the legitimate authorities, in an order

5 that is not obviously on its face illegal, ordered him

6 to take custody of these people.

7 The same situation applies in the Celebici

8 prison. These people that were held in the Celebici

9 prison were taken into custody after a battle with the

10 legitimate forces of the government of

11 Bosnia-Herzegovina, the government that was recognised

12 by many countries in the world, the government that had

13 a seat in the General Assembly. It was in the middle

14 of a war.

15 Clearly the authorities have the right to

16 take those people into custody, at least long enough to

17 sort it out. But who sorts it out? Is it the gaol

18 guards or is it some other authority that sorts it

19 out? I submit to you that it's some other authority

20 other than the gaol guards.

21 The confinement of those people there was not

22 obviously illegal. The Prosecution says that all

23 that's necessary to show mens rea is that the guards

24 knew that there were civilians being confined, they're

25 part of an imposing side, and they're held as a

Page 223

1 collective measure.

2 Well, there is more, I think, that's required

3 than that, as -- when I had my brief read back to me,

4 it's correct. If you're a guard at Auschwitz, you know

5 that you're engaging in illegal confinement. But how

6 about confinement of people who have, or at least

7 there's probable cause to believe, have engaged in

8 armed conflict with your legitimate government? Does a

9 prison guard at that point have some kind of criminal

10 liability if the legitimate organs of the state don't

11 promptly investigate or if they don't properly

12 investigate? I don't think so. I don't think there is

13 any more criminal liability than there would be on any

14 other gaoler who accepts prisoners, detains prisoners,

15 on the order of a court or some other authority, and

16 then on the authority of that court releases them.

17 Your Honours, I promised to keep this short,

18 and I don't know if I've kept it short enough. But

19 unless there's some questions from the Appeals

20 Chamber ...

21 JUDGE HUNT: Can I just get your position

22 clear? You are not seeking to support the Trial

23 Chamber's decision that the customary law had been

24 altered by Additional Protocol I; you simply say that

25 this Tribunal has no jurisdiction because of the

Page 224

1 limitation you see in Article 7(3).

2 MR. MORAN: Your Honour, as to knowledge, as

3 to knowledge only, which in my view is not an issue in

4 this case. And anything that the Appeals Chamber would

5 write would be pure dicta. But that is my view of it,

6 that the limitations that are imposed in the Statute

7 are limitations on the jurisdiction of the Tribunal.

8 And I'll give you -- there could be good

9 reasons for that, Your Honour. It very well could have

10 been that the Security Council decided that some

11 people, given the resources that are available,

12 remembering that at the time that the Statute was

13 passed, there were only 11 Judges, two Trial Chambers

14 and the Appeals Chamber, that there's a limited number

15 of people that can be tried by this Court, and that

16 limitation on jurisdiction could be a way of limiting

17 the number of trials that would come before the

18 Tribunal.

19 JUDGE HUNT: That would include, would it

20 not, the suggestion that we should be only trying the

21 small fry and not the big fish, if I've got the --

22 MR. MORAN: Your Honour, I think you may have

23 turned it around, but that is -- I somehow don't think

24 that in the Secretary-General's office, when the

25 Security Council was considering establishing the

Page 225

1 Tribunal, that they thought about some of the people

2 that have been tried here, which is not to say that

3 there should be, you know, just carte blanche you try

4 the defendants that you have.

5 JUDGE HUNT: No, no, but your suggestion, as

6 I understand it, is that we should not be trying

7 anybody for superior authority unless there's some --

8 they fall into a much narrower area than the customary

9 law permitted, but we should be trying the people who

10 are the actual perpetrators, in other words, the

11 smaller fry.

12 MR. MORAN: Your Honour, what I'm saying on

13 command responsibility is that those commanders who are

14 in command and have their subordinates commit crimes

15 should be tried, and if the Prosecutor can prove that

16 they knew or had reason to know that a crime had been

17 committed or was about to be committed, they didn't

18 stop it or they didn't punish it. I'm just suggesting,

19 Your Honour, that that is somewhat narrower than the

20 standard set up in the high command case, requiring

21 reporting, and if the commander does not design proper

22 reports, holding him criminally liable on that basis.

23 It's just that the information where you could at least

24 draw an inference is there. He knew or should have

25 known, so that he can't exercise deliberate ignorance.

Page 226

1 JUDGE BENNOUNA: [Interpretation] Mr. Moran, I

2 have a very specific question. It has to do with the

3 distinction between the de jure superior and the de

4 facto commander.

5 The Prosecutor has made the distinction

6 saying that finally what counts in respect of

7 responsibility is the effective power of the superior

8 and not his legal position or his judicial position.

9 In order to understand this effective power and to

10 evaluate it, it says this comes -- this ordinarily

11 means that one has to look at things on a case-by-case

12 basis.

13 Apparently you have rejected that notion, the

14 proposal to evaluate things on a case-by-case basis,

15 saying that this does not show certainty. [In English]

16 "Complete lack of certainty if one has to look on a

17 case-by-case basis." [Interpretation] That's what you

18 said. I don't see how one can personally examine

19 somebody's effective power without this being on a

20 case-by-case basis. The general rule is that there's

21 effective power, that is, the power that one actually

22 has, somebody about whom one knows that is giving

23 orders, that he's perceived as a superior, and this can

24 be proved only by looking at things on a case-by-case

25 basis.

Page 227

1 Therefore, my question is to know whether you

2 mean that you are against the proposal which says that

3 responsibility depends upon effective power. Is that

4 what you're saying?

5 MR. MORAN: Your Honour, let me try and

6 clarify that. Let me think for a second. But my basic

7 position is this: that authority in a military setting

8 comes with command, and when you start blurring the

9 distinction between a commander and someone who is not

10 a commander, you start blurring the law. I think that

11 de facto command, and where you look at effective

12 authority, is probably much more relevant in a civilian

13 situation, where you're deciding: Is this civilian

14 bureaucrat or this civilian leader liable on a

15 command-responsibility theory? And even there you're

16 going to have some -- you're going to have to look at

17 some kind of effective control but the control that he

18 has also under the law.

19 JUDGE BENNOUNA: [Interpretation] Excuse me,

20 but you are familiar with the doctrine of the de facto

21 agent as developed in the Tribunal's case law and in

22 the Nicaragua case at the International Court of

23 Justice.

24 MR. MORAN: Yes, Your Honour.

25 JUDGE BENNOUNA: [Interpretation] The de facto

Page 228

1 agent, who is not necessarily somebody who has any type

2 of legal jurisdiction in any official way.

3 MR. MORAN: Yes, Your Honour. Your Honour, I

4 think we're here talking about apples and oranges, if

5 you would, and I know that you don't think so, but one

6 has to do with the responsibility of a state exercising

7 influence and control over its agents. For instance,

8 what the United States exercised over the contras in

9 the Nicaragua case. And that can make something an

10 internal armed conflict, an international armed

11 conflict. But when you start talking about a

12 command-responsibility theory, every commander has

13 agents. He just can't do everything himself. He's

14 going to have a staff. He's going to have an aid who

15 makes sure that he gets where he's supposed to be with

16 what he needs when he gets there. He's going to have a

17 Chief of Staff. All these --

18 JUDGE BENNOUNA: [Interpretation] Thank you.

19 I think I've got my answer, Mr. Moran.

20 MR. MORAN: Thank you, Your Honour.

21 JUDGE BENNOUNA: [Interpretation] Do you think

22 that the command responsibility theory is limited to

23 military personnel or does it extend to the political

24 arena as well.

25 MR. MORAN: Clearly, Your Honour, it extends

Page 229

1 to the political arena. I don't think there's any

2 question about that. I think that it's a little more

3 difficult to apply in the civilian arena, and the

4 reason it's more difficult to apply is you don't

5 generally have, in the civilian world, the indicia of

6 authority and the ability to impose one's will on one's

7 subordinates that exist in the military. A military

8 commander can say, "Private, take that hill or I'll

9 send you to gaol." A superior, a supervisor in a

10 corporation can't say that. All he can do is fire

11 you.

12 So you have to look at those indicia of

13 authority and the ability to impose his will in the

14 civilian arena. And I think it's a much more difficult

15 thing to do, which is why the commentators generally

16 talk about civilians with military command-like

17 authority.

18 JUDGE BENNOUNA: [Interpretation] Thank you

19 very much.

20 JUDGE HUNT: There is another question, but I

21 think we better take the break. But before we adjourn,

22 I should have announced earlier this morning that we

23 will take the group 3 grounds of appeal after group 4.

24 It seems to be a more logical way of looking at it. So

25 we'll go group 4 and then group 3. That will obviously

Page 230

1 be sometime tomorrow.

2 We'll adjourn now until 4.30.

3 --- Recess taken at 4.00 p.m.

4 --- On resuming at 4.32 p.m.

5 JUDGE RIAD: Yes. Mr. Moran, good

6 afternoon.

7 MR. MORAN: Good afternoon, Your Honour.

8 JUDGE RIAD: I would like to follow further

9 your reasoning concerning what you said about the

10 commander's capacity to punish or to prevent. You

11 said, and I'll even try to quote you, you said the

12 commander has to have influence or power and to be able

13 to file and prosecute any action. Now, I quite

14 understand that as far as punishing is concerned. He

15 has to have, in fact, the means to prosecute.

16 Then my first question is: Does the fact

17 that he is -- of course, you are for the de jure

18 commander, not for de facto.

19 MR. MORAN: Yes, Your Honour.

20 JUDGE RIAD: All right. Consider granting

21 that, would the fact that he is a de jure commander

22 imply automatically or at least have some kind of prima

23 facie appearance that he can pursue the punishment or

24 is it an extra -- it's addition, he has to prove that,

25 although he is a de jure commander, we have to prove

Page 231

1 that he has got the means to prosecute?

2 MR. MORAN: Your Honour, in my view, and this

3 is just going to be on the view of the militaries that

4 I'm familiar with, it is inherent in the position of

5 commander that he has the authority to order a case

6 prosecuted, to convene a court-martial. That division

7 commander is going to be the general court-martial

8 convening authority. He decides whether or not to do

9 it.

10 JUDGE RIAD: He has the inherent power. So

11 really you do not mean to add it as an extra condition.

12 MR. MORAN: I wouldn't think so, Your Honour,

13 unless you've got a situation where there was a

14 military where a commander did not have that, and I

15 would think that would be more in the way of a defence

16 to a failure to punish allegation.

17 JUDGE RIAD: I'm glad you explained that to

18 me. I thought it was not inherent in his power, it had

19 to be proved, because you were rather forceful in this

20 argument.

21 MR. MORAN: Yes, Your Honour. Now, that is

22 with the military commander. Clearly a civilian

23 superior is not going to have that type of authority.

24 It's not going -- he might have the authority to fire

25 someone from their job or to reassign them to a

Page 232

1 different position or something like that, but he is

2 not going to have the authority that a military

3 commander would have to put somebody in gaol.

4 JUDGE RIAD: I just would like to mention

5 that Article 7, paragraph (3), speaks of taking the

6 necessary and visible measures to prevent such acts or

7 to punish.

8 MR. MORAN: Yes, Your Honour.

9 JUDGE RIAD: Would that also apply to

10 preventing? I mean, would that exonerate him from

11 attempting at least to prevent, saying, "All right.

12 Since I cannot prosecute, I should not attempt to

13 prevent"?

14 MR. MORAN: No, Your Honour. I think that

15 the two are two separate duties on that commander.

16 One, he has the inherent duty as a commander to see

17 that he accomplishes his mission, whatever his assigned

18 mission is, within the realm of international law. He

19 has to do that. He has to organise his unit, he has to

20 supervise his unit in such a way that he accomplishes

21 his mission with an eye towards preventing violations

22 of the law. However, if they occur, and they do occur,

23 we all know they occur no matter how careful someone

24 is, then he has the duty to punish. But reason that he

25 has the duty to punish is because that prevents the

Page 233

1 next one. That if a commander does not punish a

2 violation of the law in this case, then he is almost

3 encouraging his people to commit future crimes.

4 JUDGE RIAD: So this is inherent in his

5 position as a de jure commander.

6 MR. MORAN: It comes with the job, Your

7 Honour.

8 JUDGE RIAD: We don't need to prove it. And

9 anyhow, even if he proves that he cannot prosecute, the

10 duty to prevent remains intact.

11 MR. MORAN: Clearly, Your Honour. Remember

12 this, the Statute and customary international law does

13 not say "prosecute," it says "punish," and commanders

14 have in their abilities other ways other than formal

15 convening of a court-martial to prosecute. There are

16 plenty of ways that a commander can punish one of his

17 troops without convening a court-martial, as I'm sure

18 you can imagine.

19 JUDGE RIAD: Thank you very much.

20 MR. MORAN: Judge Bennouna, I think I did not

21 answer one of your questions well, and I thought about

22 it over the break, so if I could try to do it.

23 You were talking about the lack of certainty,

24 and where I was thinking about lack of certainty was

25 this concept of influence, that when does someone have

Page 234

1 the influence to stop crimes? At what point do they

2 have that? That's what I was talking about when I was

3 talking about lack of certainty, and I don't think I

4 made that clear enough to you.

5 JUDGE BENNOUNA: [Interpretation] Very

6 succinctly, Mr. Moran. The question of absence of

7 certainty in law deals with the rule of law itself.

8 MR. MORAN: Yes, Your Honour.

9 JUDGE BENNOUNA: [Interpretation] It does not

10 concern the consequences drawn from the rule of law or

11 the characterisation of a specific fact on the basis of

12 the rule of law. It certainty has to do with the rule

13 of law itself.

14 MR. MORAN: Yes, Your Honour, but you also

15 have --

16 JUDGE BENNOUNA: [Interpretation] Certitude of

17 the absence of certainty has to do with the rule of law

18 itself, and that's why -- well, the rule of law is

19 dependent on the state of customary law itself --

20 MR. MORAN: Yes, Your Honour.

21 JUDGE BENNOUNA: [Interpretation] -- in this

22 case.

23 MR. MORAN: But it has to be certain enough

24 that I can advise my client, be it the commander or

25 whoever, that, "If you do this action, you're acting

Page 235

1 within the law, and if you do that action, you're

2 liable to find yourself in The Hague."

3 JUDGE BENNOUNA: [Interpretation] Or

4 elsewhere.

5 MR. MORAN: Yes, Your Honour, or elsewhere.

6 If there are no further questions.

7 JUDGE HUNT: Thank you very much, Mr. Moran.

8 MR. MORAN: Thank you, Your Honour.

9 JUDGE HUNT: Now, is it Mr. Kuzmanovic or

10 Mr. Morrison who's going to commence for Mr. Mucic?

11 MR. KUZMANOVIC: Your Honour, I'm going to be

12 speaking on factual argument for command responsibility

13 on behalf of Mr. Mucic.

14 JUDGE HUNT: Yes. Are you going to start?

15 MR. KUZMANOVIC: Yes, if you'd like, I would.

16 JUDGE HUNT: Whichever you prefer,

17 Mr. Kuzmanovic.

18 MR. KUZMANOVIC: Good afternoon, Your

19 Honours. May it please the Court. I didn't know

20 whether this is the beginning of the end or the end of

21 the beginning relative to this case, so in the grand

22 scheme of things, I'm going to just plunge ahead.

23 The Court, through Judge Hunt, has made it

24 clear to us that it did not want to hear us --

25 recitation of the briefing and it wanted to keep our

Page 236

1 arguments rather succinct, and I will endeavour to do

2 both.

3 It is the position of the Defence here of

4 Mr. Mucic that as far as command responsibility is

5 concerned, the Trial Chamber chose to adapt

6 insufficient evidence in concluding that he was the de

7 facto commander for the entire time period set forth in

8 the indictment.

9 It is our belief that its reliance on

10 evidence cited in the judgement is unreasonable, and

11 based upon this unreasonableness, the Appeals Chamber

12 can substitute its own finding for that of the Trial

13 Chamber pursuant to the Tadic and Aleksovski cases.

14 It is arguable that his status as commander

15 could be said to be extended from July forward. The

16 Trial Chamber, in our view, unreasonably backdated that

17 de facto command to May. The standard of review was

18 set forth in both the Tadic and the Aleksovski cases, I

19 believe, on factual finding. The Appeals Chamber in

20 Tadic found that factual findings or findings that

21 should stand is that the standard is unreasonableness,

22 that is, a conclusion to which no reasonable person

23 could have reached. It is only where the evidence

24 relied on by the Trial Chamber could not reasonably

25 have been accepted by any reasonable person that the

Page 237

1 Appeals Chamber can substitute its own finding for that

2 of the Trial Chamber. It's contained within paragraph

3 64 of the Tadic judgement of 15 July 1999.

4 Although the Appeals Chamber has to give a

5 margin of deference to the Trial Chamber's evaluation

6 of the evidence presented at trial, the Appeals Chamber

7 can overturn the Trial Chamber's finding of fact where

8 the evidence relied on could not have been accepted by

9 any reasonable Tribunal or where the evaluation of the

10 evidence is wholly erroneous, and that comes from the

11 Aleksovski judgement, 24 March 2000, paragraph 63.

12 In addition to the arguments presented in the

13 various briefs, we will focus -- or I will focus on the

14 reasons why the Trial Chamber's conclusion that

15 Mr. Mucic was commander in at least May, June, and July

16 of 1992 was erroneous. And I think I agree with what

17 was defined earlier by Mr. Farrell, I believe, on what

18 Article 7(3) entails with respect to command

19 responsibility and those elements. And I also think

20 that the Aleksovski judgement in paragraph 70 is

21 applicable here, and we really don't disagree with it;

22 that is, anyone, including a civilian, may be --

23 THE INTERPRETER: Could counsel please slow

24 down.

25 JUDGE HUNT: When you're reading, I'm afraid,

Page 238

1 Mr. Kuzmanovic, you do speed up. It's a very natural

2 habit which we all have. So if you could just, when

3 you're reading, take it slowly.

4 MR. KUZMANOVIC: I apologise, Your Honour,

5 and I apologise to the translators.

6 Paragraph 70 of the Aleksovski judgement

7 states, and I quote:

8 "Anyone, including a civilian, may be held

9 responsible, pursuant to Article 7(3) of the Statute,

10 if it is proved that the individual had effective

11 authority over the perpetrators of the crimes. This

12 authority can be inferred from the accused's ability to

13 give them orders and to punish them in the event of

14 violations."

15 It went on to find that, "The appellant had

16 effective authority over the guards as shown by his

17 issuing orders to them and the availability to him of

18 means to report to superiors the situation in the

19 prison, including incidents of mistreatment of

20 prisoners."

21 I think the key language to focus on is

22 "effective authority," what constitutes effective

23 authority. Now, the indictment, paragraph 20, alleges,

24 among other things, that Mr. Mucic was the commander of

25 Celebici prison camp beginning from approximately May

Page 239

1 to November 1992. That's as specific as the indictment

2 gets. His authority was, at least according to the

3 indictment, derived by being appointed by Zejnil

4 Delalic, whom the Trial Chamber had acquitted. The

5 Chamber has not reconciled Delalic's acquittal with the

6 source of Mucic's authority. Instead, the Trial

7 Chamber, in our position, and we hope in the Appeals

8 Chamber's position, used unreasonable testimony from

9 witnesses to attempt to legitimatise its finding that

10 he was the de facto commander from day one.

11 The Trial Chamber itself acknowledges in

12 paragraph 736 of its judgement that "Formal appointment

13 is an important aspect of the exercise of command

14 authority or superior authority." In that same

15 paragraph, the Trial Chamber also emphasised that "The

16 factor critical to the exercise of command

17 responsibility is the actual possession or

18 non-possession of powers of control over the actions of

19 subordinates."

20 Now, until today we have not had an

21 opportunity, although we have argued in the past, that

22 the formal appointment of Mr. Mucic had never taken

23 place until approximately the end of July 1992. And

24 I'm sure you're aware, having sat through many

25 different cases, that the value and importance of what

Page 240

1 an appointment means, the fact that a document has been

2 signed, the fact that a document has been stamped, the

3 importance attached to orders and appointments, up

4 until today we have had nothing that we have argued to

5 show what in fact that appointment was, and obviously

6 that's something that's not in evidence and I won't

7 discuss it any further. But I think what the Trial

8 Chamber has done to try and impute de facto authority

9 to Mr. Mucic to the beginning, in May of 1992, is to

10 use instances of his mere presence in Celebici to be

11 proof positive of exercise of command. The testimony

12 pointed out by the Trial Chamber in paragraph 739 of

13 the judgement was, "At all times the de facto authority

14 in Celebici prison camp was Mr. Mucic."

15 Unfortunately, as Mr. Moran discussed, the

16 Trial Chamber gave us no guidance on what de facto

17 authority truly is and how it's defined. I think the

18 only way Justice Potter Stewart of the US Supreme Court

19 gave a definition once of what pornography is. He

20 said, "I don't understand it, but I know it when I see

21 it," and that perhaps is what the Trial Chamber has

22 done with de facto authority.

23 We have argued extensively that the date of

24 his actual appointment and authority is critical in

25 this case. And why? Why is it important to establish

Page 241

1 a date of his command? Why is it relevant? Simply

2 because many of, if not most, of the bad acts that

3 occurred in Celebici camp took place in May, June, and

4 July of 1992. Now, excepting for purposes of our

5 argument that Mr. Mucic admitted and took command of

6 the camp at the end of July 1992, how can he be held

7 responsible for what happened in May, June, and July?

8 The Trial Chamber does agree, in paragraph 745 of the

9 judgement, that the Prosecution has the burden of

10 proving that Mr. Mucic was the commander of Celebici

11 prison camp and that the standard of proof in this

12 respect is beyond a reasonable doubt.

13 Moreover, while downplaying the actual date

14 upon which Mr. Mucic became a commander as being

15 unnecessary in the discharge of the Prosecution's

16 burden of proof, it framed the issue, in paragraph 745,

17 as whether he was the commander during the relevant

18 period as set forth in the indictment. We think that's

19 very important. The Trial Chamber boasted that there

20 was "a plethora" of evidence brought forth by the

21 Prosecution on the issue, backdating, so to speak, the

22 de facto authority in May of 1992. And it's our

23 submission that a reliance on that evidence is

24 unreasonable and an evaluation of that evidence is

25 appropriate.

Page 242

1 I'd like the Trial Chamber to note that some

2 of the testimony relied upon by the Trial Chamber, and

3 I will go over some of it in detail, is inherently

4 unreasonable.

5 The Trial Chamber cites the evidence of

6 several witnesses that give "evidence of the actual

7 exercise of authority over Celebici prison camp by

8 Mucic," and that's starting in paragraph 745 of the

9 judgement. The Trial Chamber states that Witness P

10 stated that Mr. Mucic transferred him in June 1992 from

11 Celebici. When one looks at the citation at page 4518

12 of the transcript, the transcript reveals that

13 Witness P was never transferred from Celebici in June

14 1992. Witness P also never said that Mr. Mucic was a

15 commander. Witness P only said that Mr. Mucic said he

16 was being forced to take over the camp sometime in the

17 future. That's at 4519 of the transcript. Why is that

18 important? Because the Trial Chamber cites Witness P

19 as stating that Mucic transferred him in June 1992,

20 when in fact that didn't happen. That's an example of

21 the Trial Chamber's unreasonableness on the, "actual

22 exercise of authority."

23 At paragraph 746 of the judgement, Witness N

24 claimed that Mr. Mucic was the commander because when

25 "Pavo" was to come to the hangar, Mr. Delic would say

Page 243

1 the commander was coming. Now, if you look at the

2 transcript citation there at pages 1923 to 1924, the

3 question Witness N was asked was when did he see Mucic

4 for the first time. And the answer was he didn't

5 recall the exact date, but he remembered seeing him in

6 August 1992.

7 Now, I harp on this issue simply because,

8 again, the backdating of the de facto command to May of

9 1992 is being substantiated by witnesses that are cited

10 in the Trial Chamber's judgement. And we don't think

11 that the evaluation of that evidence, when you look at

12 it, was done in a reasonable fashion.

13 Also at paragraph 746 of the judgement,

14 Stevan Gligorevic, he was cited for giving testimony to

15 similar effect as Witness N and Witness P. The

16 question put to him relied upon by the Trial Chamber as

17 "exercise of authority" was: Did you see Mr. Mucic in

18 camp? And on page 1453 of the transcript, the answer

19 was, "I saw him, but I cannot determine the exact

20 time. I think it was the end of June/early July," and

21 this is in 1992.

22 But then the following question, or the

23 previous question, which is I think is critical, is on

24 1451 and 1452 of the transcript. Question: "Did you

25 see any of these now-named persons exercising command

Page 244

1 in the camp?" And by "any of these now-named persons,"

2 he was referring to Delic or Delalic or Mucic. And the

3 answer was: "Yes, I saw Delic, because we all had to

4 obey him, because all the guards had to obey him and

5 they were even afraid of him. I don't know about Pavo

6 Mucic. I cannot recall when I saw him for the first

7 time. I cannot remember exactly, but I think it was

8 somewhere late June or early July."

9 So when you look at some of the citations in

10 the Trial Chamber's judgement to what evidence is that

11 shows "effective control," when you look at the

12 evidence, it doesn't show anything.

13 Interestingly, he was asked on the same page

14 of the transcript, that is, this particular witness,

15 Mr. Gligorevic, if and in what way you saw Delic

16 exercising command. The answer was: "That was

17 obvious. There was no question there. At least at

18 that time what was obvious is there was reasonable

19 doubt on behalf of Mr. Gligorevic's impressions of

20 Mucic as a commander.

21 Paragraph 746 of the judgement also cites

22 Vaso Dordic. On page 4348 of the transcript, the Trial

23 Chamber relies upon Dordic's testimony that Mucic

24 identified himself as the commander on July 13th. He

25 did not see Mucic but for one occasion ten days later.

Page 245

1 And under cross-examination, Mr. Dordic pointed out

2 that he never mentioned July 13th in some other

3 statements that he gave to the OTP.

4 In paragraph 747 of the judgement, Mirko

5 Dordic, on page 4796 of the transcript, said he saw him

6 in camp once in June. The next time was the end of

7 July/beginning of August 1992.

8 Similarly, Mr. Branko Sudar, in transcript

9 page 5751. The only thing mentioned here is that Sudar

10 claims when Pavo Mucic's name was mentioned, the guard

11 stopped beating detainees. And then what's I think

12 interesting about that quotation is that he says, "In

13 the meantime, they said half of us should get ready to

14 go to Musala, Konjic, half of them left, then I stayed

15 behind. Then when the van came a second time, the rest

16 of us got in and we were driven to the sports hall in

17 Konjic, known as Musala." Nothing here mentions Mr.

18 Mucic's name or in any way associates him with the

19 transfer or that Mr. Mucic was ever even seen.

20 The Trial Chamber also in the judgement makes

21 a big deal about an exhibit, number 192, in an article

22 from an Arab newspaper which was shown to be copied to

23 the camp. Based upon the discussions at transcript

24 8476 to 8515, the Trial Chamber at that point didn't

25 put much validity into that. In fact, Judge Jan

Page 246

1 stated, "It has appeared in the press, nothing more

2 than that." In our view, to cite that as authority for

3 Mucic as a commander is completely unreasonable. The

4 article itself gave no indication of reliability for

5 issues pertaining to command authority or command

6 responsibility.

7 Mr. Nedeljko Draganic, another witness relied

8 upon by the Trial Chamber in the judgement for vestiges

9 of command, in paragraph 756 stated in the transcript

10 that Mr. Mucic released him on 30 August of 1992 and

11 that he didn't recall when he first saw Mucic but saw

12 him one or two times. During his entire stay he is

13 quoted as saying, on pages 1612 and 1613, of the

14 transcript, "I didn't know who had authority," and he

15 was there for 90 days.

16 Dragan Kuljanin, there was no testimony with

17 respect to timing of command.

18 Mladin Kuljanin, in a transcript and cited in

19 the judgement, says he saw Mr. Mucic a couple of times

20 in the camp in September, and he was interviewed in

21 June in the camp, in the command building, by two

22 people, neither of whom were Mucic.

23 Paragraph 758 of the judgement has several

24 witnesses: Novica Dordic, Witness B, Zoran Ninkovic,

25 none of whom identified Mr. Mucic as the commander, or

Page 247

1 had no idea who he was in terms of command.

2 Interestingly, Mr. Ninkovic, who said he saw

3 Mr. Mucic in Celebici for the first and last time on

4 June 6th, said in his transcript, "The first commander

5 who introduced himself was Rale Musinovic." That's

6 testimony on 51, 52, and at 51, 53 of the trial

7 transcript.

8 What I'm driving at here, at least for the

9 sake of argument, is the only reasonable, credible

10 evidence of Mr. Mucic in command begins late July,

11 early August of 1992.

12 Now, we don't have a quarrel with the Trial

13 Chamber making the statement that Mr. Mucic was in

14 Celebici, present there before the end of May 1992. I

15 think that's pretty clear. However, using that

16 presence, the Trial Chamber, in our estimation, leaps

17 to the conclusion that not only was he present but he

18 was exercising de facto authority over the prison camp

19 and its personnel, and we believe, given some of the

20 testimony that I pointed out in oral argument thus far,

21 that that's unreasonable.

22 It's also unreasonable with respect to

23 control in May, June, and July of 1992, to cite

24 documents in paragraph 764 of the document, Exhibit 75,

25 84, 91, and 158. These are all documents signed at the

Page 248

1 end of August. How this implies de facto control in

2 May, June, and July, to us, is beyond comprehension.

3 Interestingly, after a very important witness

4 testified on behalf of Mr. Delalic, his name was Sadik

5 Dzumhur, who was in the camp as a MUP commander in May

6 and June of 1992, after everyone got done questioning

7 him, Judge Karibi-Whyte, on 2305 to 2306 asked him a

8 series of questions about who -- "Do you know who the

9 person was in charge of the prisons at Celebici? Who

10 was the head at that time, up until June 15th of 1992

11 at least?" And Dzumhur answered: "Up until June 15th,

12 I know that a MUP unit was accommodated in Celebici and

13 that heading that unit was Rale Musinovic."

14 Then Judge Karibi-Whyte further followed up:

15 "And you know that the MUP was in charge of the

16 prisoners, they were looking after the persons detained

17 there?" And the answer is: "In that period, yes."

18 The further follow-up question the Judge

19 asked: "When did they cease to take charge of the

20 persons in the prison there?" Answer: "I don't know

21 exactly, but I said about mid-June new TO forces

22 arrived and several policemen remained behind."

23 Now, I don't think there is any question that

24 Mr. Mucic was not a member of MUP. We don't believe

25 that there's reasonable, credible testimony putting him

Page 249

1 commander in May and June and most of July of 1992, and

2 ignoring Mr. Dzumhur's evidence and testimony makes the

3 conclusion that he was the commander at that time frame

4 de facto unreasonable.

5 While there is evidence of Mr. Mucic being in

6 camp before the end of July, such presence, in our

7 humble opinion, does not prove or indicate beyond a

8 reasonable doubt that he was at that given moment the

9 commander or the administrator of the camp.

10 As you will have surmised by reading the

11 judgement and by reading most of the documentation in

12 this case, entry into the camp by those who had no

13 function there was very easy to achieve.

14 The question that I put on the de jure or the

15 de facto control is where is the actual responsibility

16 or the actual evidence of superior authority in May,

17 June, and July of 1992?

18 That's why we urge, in reviewing the

19 judgement, that close looks are taken at some of the

20 citations that the Trial Chamber has used in the record

21 to "prove control" at the relevant time frames in May

22 to November of 1992, and we believe that no reasonable,

23 credible evidence exists to show that control existed

24 at least in May, June, and July of 1992.

25 Thank you very much Your Honours.

Page 250

1 JUDGE HUNT: Thank you, Mr. Kuzmanovic.

2 Mr. Morrison.

3 MR. MORRISON: Your Honour, very few

4 submissions I wish to make partly, because most have

5 been made by my learned friend Mr. Moran, although

6 matters have been raised by the Prosecution with which

7 we take no issue, and also because it is suspected that

8 the documents that we hope will become apparent may

9 answer some of the questions in the affirmative that we

10 seek affirmative answers to.

11 JUDGE HUNT: Before you go on, we don't want

12 to forget that the status of your appeal or at least

13 how long it should be pending for, and before we finish

14 with you, we better be ready to sort that one out. I

15 don't want you to do it now, I just want to remind you

16 that we haven't dealt with it yet.

17 MR. MORRISON: To some extent I very much

18 appreciate that I'm being asked to calculate the length

19 of a piece of string at the moment, because we haven't

20 actually got the documents that may determine -- did I

21 misunderstand Your Honour? The whole length of the

22 appeal?

23 JUDGE HUNT: I think you can take it that we

24 will grant you the same as we have granted the

25 Prosecution, that your appeal may be left open, but we

Page 251

1 have not yet considered the basis upon which or the

2 length of time which you should have. I don't want you

3 to estimate times, but the Prosecution are being

4 required, in effect, to make their application without

5 a full understanding of the documents, and you should

6 be in a different position because you are looking for

7 everything there that will assist you to meet a case.

8 Now, that's all I mean. We have to deal with

9 that at some stage before we have finished with your

10 ground of appeal 9, as it now is.

11 MR. MORRISON: Your Honour, we will certainly

12 put our minds to that matter and give as reasonable an

13 explanation as possible.

14 JUDGE HUNT: We will deal with it obviously

15 in the morning, I think.

16 MR. MORRISON: Yes. I'm much obliged for

17 that.

18 There's very little in my submission that

19 bears repetition in this life except perhaps feeding

20 children and constitutional monarchy, but one question

21 that I would pose, a submission I would pose, and that

22 is I appreciate by doing this I'm actually asking the

23 Appeals Chamber to consider this matter rather than

24 supply an answer to it through submission, and that's

25 this: As an Appellate Chamber, you are, of course,

Page 252

1 lawmakers. The law relating to de jure/de facto

2 command responsibility is far from certain. As my

3 learned friend Mr. Moran said, he's not even entirely

4 sure what de facto command responsibility is because of

5 the lack of real definition.

6 What I ask the Appeals Chamber to bear in

7 mind is simply this: That there must be species of

8 executive authority that are exercised by people who

9 have the ability, in the heat of the moment, or in the

10 circumstances in which they find themselves, to

11 exercise such authority without it being in the camp of

12 either de facto or de jure command responsibility,

13 because otherwise, if every act of executive power,

14 however minor it was, was determined to fall into one

15 or other camp, there would be no delimitation on

16 command responsibility and we would be getting away

17 from the essence of command, and we would fall to a

18 situation where everybody who exercised any authority

19 or initiative at all was at risk of that exercise being

20 cloaked with the mantle of command responsibility, and

21 in the context of these matters, criminal command

22 responsibility, because it seems -- its self-evident

23 that the whole doctrine of command responsibility in

24 international law is to give rise to judicial sanction

25 in respect of criminal behaviour rather than what might

Page 253

1 be called beneficial or humanitarian acts, and that is

2 a distinction which I would invite the Appellate

3 Chamber to draw when considering this matter.

4 Those -- it is self-evident, in my

5 submission, whether any given act would broadly fall

6 into the category of benevolent or malevolent and there

7 is evidence in this case that Pavo Mucic did a number

8 of acts which could only be described as benevolent,

9 and I will come on to those later in the sentencing

10 submissions. But I ask that the Appellate Chamber

11 gives thought during the course of its determinations

12 in that case to that aspect, because it seems to me

13 that that's an area of law which needs to be

14 addressed.

15 Unless Your Honour has any questions, I do

16 not intend to repeat anything that my learned friends

17 have said.

18 JUDGE HUNT: Thank you very much indeed.

19 Now, Mr. Ackerman, you have to respond to the

20 Prosecution grounds 1, 2, and 3.

21 MR. ACKERMAN: Thank you, Your Honour, and I

22 begin -- this is horribly loud.

23 I begin in a bit of a quandary similar to

24 that one I was in this morning when the Prosecution

25 began to argue a matter which I did not think had been

Page 254

1 scheduled for argument.

2 One of the things that's on my plate to argue

3 is the issue of Count 48 and the Prosecutor's

4 contention that -- Prosecutor's contention that

5 Mr. Delalic should have been convicted under Count 48

6 because of his status as an aider and abettor.

7 The Prosecution, unless the fast talk was

8 going so fast that I missed it, did not argue that

9 issue. It's point 3, I believe. Now, whether they

10 intend then to abandon that or not, I don't know, but

11 I'm not real comfortable responding to an argument that

12 was not made, and I don't know whether Mr. Farrell now

13 wants to address that or wants to announce to the Court

14 that he's abandoned it or what.

15 JUDGE HUNT: He is relying upon his written

16 submissions as expanded in Court. If he hasn't

17 expanded upon it, that does not mean he's withdrawn the

18 written submissions.

19 MR. ACKERMAN: That's fine. The only thing

20 I'm pointing out is that was never said. If he's

21 relying on his written submissions, that's fine with

22 me.

23 JUDGE HUNT: I think I made it sufficiently

24 clear at the various pre-appeal conferences we don't

25 want counsel reading out what they have already put in

Page 255

1 writing, but we are taking into account what has been

2 put in writing.

3 MR. ACKERMAN: Thank you. It's now clear to

4 me.

5 Along that line, Your Honour, I took it very

6 seriously when you announced at the Status Conference

7 that we should not stand up here and tell you what we

8 have written in our briefs, and I've taken that

9 seriously, and I suspect that you will consider very

10 carefully the things that I have written in my brief

11 regarding these various issues.

12 Now, I have noticed, sitting here today, that

13 some of the parties have, nonetheless, taken the

14 opportunity to spend some time telling you what it is

15 they've written in their briefs. I will not do that.

16 What I will do is tell you the things that I believe

17 have occurred since the brief was filed that might be

18 of interest to you regarding the various issues.

19 I want to begin by discussing the question of

20 the definition of "knew or had reason to know." The

21 Prosecution is correct. The real issue here is the

22 definition of "had reason to know."

23 Candidly, the Prosecution has admitted what I

24 contended in my brief, that this was really an academic

25 exercise because it didn't play any role whatsoever in

Page 256

1 the decision the Trial Chamber arrived at with regard

2 to Mr. Delalic.

3 I will point out, however, in the nature of

4 that academic exercise, that since the Celebici

5 decision, the Aleksovski Trial Chamber has considered

6 the definition of the phrase "knew or had reason to

7 know" and adopted the Celebici Trial Chamber definition

8 at page 80 of their decision. So by that point, six

9 Judges had agreed with the definition that was set out

10 in the Celebici Trial Chamber's decision.

11 I think it's significant that in the

12 Aleksovski appeal, the Office of the Prosecutor chose

13 not to challenge the Aleksovski Trial Chamber's

14 adoption of the Celebici Trial Chamber's definition of

15 that phrase.

16 The Aleksovski Trial Chamber did speak, and

17 this gets into a number of issues that we're

18 discussing, and that is the kind of circumstantial

19 evidence that one might consider in terms of

20 determining whether someone may have had reason to

21 know. I won't go into that in any detail except to say

22 that that is set out both in Celebici and in

23 Aleksovski, the Trial Chamber decisions.

24 In the Blaskic case, the Trial Chamber

25 fashioned a somewhat different definition of "had

Page 257

1 reason to know." In Blaskic, they talked about

2 ignorance not being a defence if the absence of

3 knowledge is the result of negligence in the discharge

4 of his duties. That's at paragraph 332.

5 Again, this has no real effect on the Delalic

6 case since he had no duty to know, according to the

7 Trial Chamber, what was going on in Celebici because

8 there was no superior/subordinate relationship there,

9 so he couldn't have negligently discharged any duty by

10 failing to acquire that knowledge.

11 I think that's all I had to say with regard

12 to that issue that has come up basically since the

13 Trial Chamber's decision.

14 If I may, unless there's no question about

15 that issue, I will move on to this issue of superior

16 responsibility.

17 I've heard a number of things sitting here

18 this morning that I think I first want to discuss.

19 Mr. Moran, I believe, was asked the question about the

20 inherent power of a commander. If you are a commander,

21 do you have the inherent power to punish? And the

22 answer was yes, that can be taken without proof.

23 However, if there is proof to the contrary, then that

24 must be considered, which was the case in the Celebici

25 case with respect to Mr. Delalic's role as commander of

Page 258

1 TG-1.

2 A number of military people came here and

3 testified, Polutak is one that comes to mind, that in

4 the case of a tactical group, a tactical group is made

5 up of regular units that are detached from their normal

6 structure and made part of a tactical group to

7 accomplish a particular purpose and then returned back

8 to their original units.

9 The experts that testified about that said

10 the tactical group commander does not have the power to

11 punish violations committed by members of his tactical

12 group, that his only power is to refer those to the

13 commander of the group that is attached to his unit for

14 the tactical purpose, whatever it is. So that would be

15 a case where although the power is inherent, there is

16 evidence to the contrary, that there is no such power.

17 Mr. Farrell talked at some length about bits

18 of evidence that you can find in the record which tend

19 to show that Mr. Delalic exercised some authority over

20 the alleged perpetrators of the crimes at Celebici, and

21 clearly the Trial Chamber was aware of those bits of

22 evidence. It would be surprising if they had indicted

23 Mr. Delalic and tried him if they had not had some

24 evidence that would tend to indicate that he might have

25 had that kind of relationship with Celebici.

Page 259

1 What we didn't hear from Mr. Farrell and what

2 is the most important thing is that the Prosecution's

3 burden was not to show just some evidence but to prove

4 that beyond a reasonable doubt.

5 Now, if you look at the full body of evidence

6 from the Celebici case, about the role of Mr. Delalic

7 in 1992 in the Konjic area, the evidence is almost

8 overwhelming that he did not exercise any control or

9 command over Celebici. The Trial Chamber found that

10 there was no superior/subordinate relationship between

11 Mr. Delalic and the people who operated that camp, and

12 they found that based upon looking at all the

13 evidence. They say at the beginning of their opinion

14 that they've considered all the evidence and that the

15 Prosecution had failed to prove beyond a reasonable

16 doubt that there was this superior/subordinate

17 relationship.

18 A thing that has concerned me since reading

19 the Prosecution's brief, and it has come up again

20 today, is the Prosecution keeps referring to evidence

21 not rejected by the Trial Chamber. They'll say to you,

22 "Your Honours, there was this exhibit or there was

23 this testimony, and it was not rejected by the Trial

24 Chamber, so you must take it into consideration."

25 There is no rule at this Tribunal that when a

Page 260

1 Trial Chamber writes its judgement it must single out

2 each of those pieces of evidence that it found to be

3 not credible, that it rejected. What you can best do,

4 from looking at the judgement that the Celebici Trial

5 Chamber wrote, is understand that some evidence was

6 credited more than other evidence was, and just because

7 there is testimony for a particular proposition, and

8 what comes to mind is the testimony that Mr. Farrell

9 was talking about with regard to Dr. Grubac and his

10 release from prison, just because people said that

11 "Mr. Delalic said he would release me," doesn't mean

12 that the Trial Chamber gave that any credit

13 whatsoever. And just because the Trial Chamber didn't

14 say, "We reject this evidence," that you must then give

15 it credit.

16 I think it's clear from the decision of the

17 Trial Chamber that a lot of evidence of that nature was

18 not credited by them. And they were the ones who sat,

19 Your Honours, where you are sitting now and looked the

20 witnesses in the eye when they testified, saw their

21 demeanour when they testified, saw the way they said

22 the things they said, saw whether they kind of held

23 their hand over their face and looked away when they

24 said certain things. Only the judge who is in a

25 position to make that credibility determination can

Page 261

1 decide whether or not that evidence should be accepted

2 or not.

3 Looking at the cold record of the trial,

4 reading the transcript off the television or off a cold

5 transcript, all you see are the words. You don't see

6 the tone of voice, you don't see the shifty eye, you

7 don't see the things that we all use when we

8 communicate with others to make a determination as to

9 whether or not we're being told the truth. You have to

10 give credit to those people who sat where you are in

11 Celebici for having made that determination correctly

12 and properly.

13 There is this issue -- frankly, when I first

14 saw it in the Prosecution's brief, it almost took my

15 breath away -- the proposition that in the context of

16 command responsibility there should be a component that

17 says: If you are a person of influence, even though

18 not within the superior/subordinate relationship, but a

19 person of influence, that there are circumstances under

20 which you could be held responsible as if you were a

21 superior in that relationship. The Prosecution, in my

22 mind, is asking you to make new law, asking you to

23 adopt a whole new theory of command responsibility.

24 When other people have talked to you today,

25 others of my colleagues have talked to you today about

Page 262

1 that, there has been some talk about the uncertainty of

2 trying to get our hands around that issue. Mr. Fenrick

3 talked about it, how it was difficult to define, and he

4 was only able to give you a couple of examples of what

5 it is not: It is not this and it's not this. But he

6 wasn't able to give you any examples of what it is.

7 One of the things the rule of law requires is that if

8 you're going to make some kind of behaviour subject to

9 a criminal sanction, that you must define it in such a

10 way that reasonable people will be able to understand

11 what it is they're being asked to either do or not do.

12 When this Tribunal is being asked to adopt a

13 principle that no one can stand up here and define for

14 you so that you can understand it, how on earth can

15 those out there in the field who are expected to comply

16 with it understand what it is they are to do and not

17 do?

18 Take Konjic and that situation that went on

19 there in 1992. Every village of that size, we all know

20 from our own experience, may have any number of people

21 who are influential. The mayor of the town may be a

22 particularly popular doctor in the town. Certainly the

23 president of the War Presidency in Konjic would have

24 been an influential person. Any number of people there

25 have influence.

Page 263

1 The Prosecutor is saying if you knew and had

2 any kind of influence over the person who was in charge

3 of the camp, who was responsible for Celebici, then it

4 was your duty to take some kind of steps to stop what

5 was happening there. And my submission is that that

6 is -- first of all, it is not part of customary

7 international law, and this Court can only apply what

8 is customary international law. And you have to

9 determine, if you're going to apply customary

10 international law, that it is beyond doubt part of

11 customary international law. And there is no way,

12 looking at all of the history of the concept of command

13 responsibility, that you could ever arrive at the

14 conclusion that it is beyond doubt part of customary

15 international law that a person of influence in the

16 community can be held responsible as a commander or as

17 a superior even though he's not within the

18 superior/subordinate relationship.

19 The Trial Chamber found, and the Prosecutor

20 agreed in their brief, that Mr. Delalic was not within

21 the superior/subordinate relationship as regards

22 Celebici. So the only way that he can be held

23 responsible, and that's why the Prosecutor suggests

24 this new approach, is to be held responsible as a

25 person of influence who's outside that

Page 264

1 superior/subordinate relationship and can somehow have

2 the power to effect it.

3 The Celebici Trial Chamber's view of the law

4 regarding command responsibility has been largely

5 adopted by subsequent decisions and judgements in this

6 Tribunal. The Blaskic trial adopted the Celebici

7 definition at paragraph 300 and 301 of their decision,

8 the Trial Chamber. Aleksovski appeals judgement in

9 essence agreed with the Celebici definition.

10 One of the things that runs throughout these

11 is element 1, is the existence of a

12 superior/subordinate relationship. That's element 1 of

13 defining whether or not someone can be held

14 responsible. That decision, by the way, by the

15 Aleksovski Trial Chamber again was not appealed by the

16 OTP. They did not challenge the Aleksovski Trial

17 Chamber's agreement with the Celebici definition of

18 command responsibility.

19 The Aleksovski Appeals Chamber said that this

20 relationship, superior/subordinate, can be determined

21 by asking whether the accused had the ability to give

22 orders and punish the persons involved. And clearly

23 the Trial Chamber in Celebici found that Delalic did

24 not have that ability, based upon all the evidence that

25 they considered.

Page 265

1 We've argued in our brief about the approach

2 taken by the drafters of the Rome Statute in this

3 regard. The Rome Statute reads:

4 "A superior shall be criminally responsible

5 for crimes within the jurisdiction of the Court

6 committed by subordinates under his or her effective

7 authority and control."

8 I must grant to Mr. Fenrick, even though

9 there have been times when he didn't think they were

10 important, that there are some cases that go somewhat

11 beyond that that came out of the post-World War II

12 period. I think it's a safe conclusion that the

13 thinking in those cases has basically been rejected

14 since World War II by the world community.

15 You have the most recent evidence of the

16 world community adopting the Rome Statute, and I

17 suggest to you that that language in the Rome Statute

18 is the world community's current view of what customary

19 international law at that time was, which they then

20 codified in that Statute. Prior to that you have the

21 earlier work, post-World War II work, of the

22 international law commission, which arrived at roughly

23 the same position regarding this definition in this

24 regard.

25 I suggest to you that it would be both poor

Page 266

1 policy and a violation of your mandate from the United

2 Nations to now adopt some new approach to this which is

3 not consistent with either the International Law

4 Commission's view or the Rome Statute. I think it

5 would violate the principle of nullem crimen sine lege

6 and that it would be improper for this Tribunal to

7 establish a test and a rule regarding command

8 responsibility for the people appearing before this

9 Tribunal that will not be imposed by the International

10 Criminal Court upon people appearing before that court

11 when it finally begins to function.

12 Finally, I want to point out that in the

13 Celebici trial, on this issue of what Mr. Delalic's

14 position was in the Konjic area during 1992,

15 Mr. Delalic had a number of witnesses that the Trial

16 Chamber did not permit him to call regarding that. The

17 Trial Chamber shut down the Delalic defence and

18 prevented him from bringing before the Chamber a number

19 of witnesses regarding this issue.

20 It seems to me in that context, where the

21 Trial Chamber decided that they had heard enough

22 evidence about Mr. Delalic's lack of responsibility for

23 what occurred within Celebici and didn't want to hear

24 anymore, that it would be decidedly improper to now

25 reverse that judgement and find Mr. Delalic guilty,

Page 267

1 having been prevented from fully defending himself at

2 the Trial Chamber level.

3 I'm completed with my argument regarding that

4 issue. I don't know how long you want to go. I'm

5 prepared to do everything that I've been asked to talk

6 about at this point if the Chamber wants to sit here

7 and have me do that.

8 JUDGE HUNT: You mean in relation to the

9 Prosecution's appeal, or are you --

10 MR. ACKERMAN: In relation to the issues that

11 are on my plate right now. I think there are two more

12 that I have to discuss: the rebuttal/reopen issue and

13 the unlawful confinement issue. And I think I can

14 finish those, Your Honour, in 10 or 15 minutes, or

15 less.

16 JUDGE HUNT: I think it would be preferable

17 if we came back to it tomorrow, Mr. Ackerman, and we'll

18 start with you in the morning. Then the Prosecution

19 will have the right to respond to Mr. Mucic's appeal

20 and to reply to everybody. As there are three of you,

21 I hope you've sorted it out between yourselves on the

22 Prosecution side who is going to deal with what and

23 that there will not be any repetition.

24 We'll adjourn now until 10 tomorrow.

25 --- Whereupon the hearing adjourned

Page 268

1 at 5.33 p.m., to be reconvened on

2 Tuesday, the 6th day of June, 2000,

3 at 10 a.m.