1 Wednesday, 11 March, 1998

2 (Motion Hearing) (Open session)

3 (The accused entered court) --- Upon commencing at 10 a.m.

4 JUDGE KARIBI-WHYTE: Good morning, ladies

5 and gentlemen. We will have the appearances.

6 MR NIEMANN: Your Honours, my name is

7 Niemann. I appear with my colleague, Mr McHenry,

8 Mr Turone, Mr Dixon and Mr Khan for the Prosecution.

9 JUDGE KARIBI-WHYTE: Could I have the

10 appearances for the Defence, please?

11 MS RESIDOVIC: I am Edina Residovic, Defence

12 counsel for Zejnil Delalic. With me in the courtroom

13 today, as co-counsels for Mr Delalic, are my

14 colleagues, Mr Eugene O'Sullivan, professor from Canada

15 and Ekrim Galijatovic, attorney, from Sarajevo.

16 MR OLUJIC: I am Zeljko Olujic, attorney

17 from Croatia, appearing on behalf of Mr Mucic, together

18 with my colleague, Mr Michael Greaves, attorney from

19 the UK.

20 MR KARABDIC: I am an attorney from Sarajevo,

21 appearing on behalf of Mr Hazim Delic along with

22 Mr Thomas Moran, attorney from Houston, Texas.

23 MR ACKERMAN: My name is John Ackerman and

24 Cynthia McMurrey and I appear on behalf of Mr Esad

25 Landzo today.

1 JUDGE KARIBI-WHYTE: We now have before us

2 the motions and the replies by the Defence. Are you

3 proceeding to argue it this morning? We have oral

4 arguments.

5 MR ACKERMAN: Yes, your Honour. I will go

6 first, followed by Mr Moran, and then Ms Residovic and

7 then Mr Olujic.

8 JUDGE KARIBI-WHTYE: Before we proceed,

9 I would like to mention what I have observed on the

10 motions. It has been indicated in the motion that it

11 is being argued in the alternative -- that is what your

12 motion says -- and a judgment for acquittal, or

13 alternatively, you proceed to answer the charges

14 against you. Does the Trial Chamber understand that is

15 the alternative in which you are arguing it?

16 MR ACKERMAN: I think the alternative is

17 either a judgment of acquittal, or a dismissal of the

18 counts, depending upon whether the decision of the

19 Trial Chamber is based on factual matters demanding

20 acquittal, or legal matters -- jurisdictional matters

21 demanding dismissal. That is the alternative that

22 I think the brief speaks of.

23 JUDGE KARIBI-WHYTE: That is if it is

24 successful?

25 MR ACKERMAN: Yes.

1 JUDGE KARIBI-WHYTE: If it is not?

2 MR ACKERMAN: If it is not successful, of

3 course the Defence goes forward --

4 JUDGE KARIBI-WHYTE: That is where the

5 problem lies. The Rules have always been clear. When

6 you bring motions in that way, you choose either to

7 rest your case on that of the Prosecution evidence and

8 the law, or you decide to merely have a prima facie

9 case and proceed further. If you close your case with

10 that of the evidence for the Prosecution, you would not

11 be entitled to adduce further evidence in rebuttal,

12 because you have now accepted the law and evidence as

13 adduced by the Prosecution and would be bound by it.

14 If, on the other hand, you do not comment on

15 the evidence, and you are challenging the law, and the

16 evidence as not having made a prima facie case, you

17 will be entitled to adduce your own evidence in rebuttal.

18 What I have now seen, your motion has dealt

19 with, in very critical detail, the evidence of the

20 Prosecution and the law, and disputing them in various

21 areas. Now, you are not, strictly speaking, accepting

22 the evidence of the Prosecution -- you are challenging

23 them and asking for a judgment of acquittal, which

24 means you are relying, for your case -- if you are

25 asking for a judgment of acquittal, you are relying for

1 your case on the evidence of the Prosecution -- a case

2 for acquittal, for that you are relying on the case

3 made by the Prosecution.

4 MR ACKERMAN: No defendant at this stage is

5 resting their case, your Honour. With regard to

6 factual matters, based upon the Tadic Trial Chamber

7 pronouncement of what the burden is at this stage, it

8 is our belief that, at this stage, from a factual

9 matter with regard to each element of each offence, the

10 Prosecution must have established a prima facie case.

11 We are arguing that, with regard to some of

12 the counts, the Prosecution has failed to establish a

13 prima facie case at this point, not that all of the

14 evidence is in and the test should be a "beyond a

15 reasonable doubt" test, but that the Prosecution

16 evidence now is closed and, being what it is, in some

17 instances, we believe that the Prosecution has failed

18 to establish a prima facie case, that is, bring forward

19 some evidence as to each element of each offence and

20 that is the argument that we are making. It is not an

21 argument that the evidence is closed and that you

22 should weigh the evidence to make a determination as to

23 whether there is proof beyond a reasonable doubt or

24 not. That is not our contention, that is not what we

25 are asking the Trial Chamber to do.

1 JUDGE KARIBI-WHYTE: Then your choice lies

2 on the aspect which still expected that there are

3 disputed facts, in which case you still come forward to

4 give evidence.

5 MR ACKERMAN: No question about it -- if

6 they have made a prima facie case as to each element,

7 then we will go forward and contest that. If they have

8 not, then this court should dismiss those particular

9 counts of the indictment where they have not made the

10 prima facie case.

11 JUDGE KARIBI-WHYTE: When you put it in the

12 alternative, you have to make a choice as to which

13 alternative you take, but you do not have your cake and

14 eat it -- it must be one or the other.

15 MR ACKERMAN: It may very well be that

16 titling the motion, a motion for judgment of acquittal

17 and motion to dismiss, was not all that artful, having

18 no reason to believe that the court would view the

19 language "acquittal" as being somehow a contention that

20 it is time to weigh the evidence and make a decision

21 based upon the standard of proof beyond a reasonable

22 doubt. All we are suggesting is, if there is factual

23 insufficiency, such that there is no prima facie

24 evidence with regard to a particular element of a

25 particular count, then either an acquittal or a

1 dismissal would lie -- not knowing which of those might

2 be the appropriate remedy, we chose to state it in the

3 alternative so, if the court felt that acquittal was

4 appropriate, because of the lack of a prima facie case,

5 the court would be able to do that.

6 If that was in error, then we certainly would

7 withdraw any argument of acquittal and simply say that

8 count should be dismissed because of a lack of a prima

9 facie case.

10 JUDGE KARIBI-WHYTE: I do appreciate that in

11 every motion for dismissal based on the fact that no

12 prima facie case has been made, it affects only those

13 areas where such prima facie case has not been made.

14 For areas where they have been made, they go forward to

15 defend that. If it has not been made, it must be

16 dismissed -- the usual situation. When you talk about

17 acquittal resting on determination of the facts and the

18 like, you are assuming that you are resting your case

19 on that of the Prosecution, which normally should not

20 be -- the result could have been the same, whichever

21 way you choose, but depending on your own choice --

22 because if you feel so convinced, if you feel so

23 strongly that you do not have to go forward to give

24 evidence, that sort of rests on the case of the

25 Prosecution.

1 MR ACKERMAN: I can only speak on behalf of

2 Mr Landzo on that issue, but I assure you that

3 Mr Landzo does not rest his case at this point.

4 MR MORAN: I will take the blame for the

5 phrase "judgment of acquittal". The practice I am used

6 to is, at the close of the Prosecutor's case, if they

7 have failed to make a prima facie case, a judgment of

8 acquittal is actually entered rather than dismissal and

9 so I will take the blame for that inartful wording and

10 apologise to the court if I confused you -- or if I

11 confused myself. But, on behalf of Mr Delic, if the

12 court finds that there is a prima facie case made on

13 any of the counts on which he is charged, we will

14 present evidence. All we are asking the court to do is

15 to view the evidence in the light most favourable to

16 the Prosecutor and determine whether they have made a

17 prima facie case as to each count.

18 JUDGE KARIBI-WHYTE: Thank you very much.

19 MS O'SULLIVAN: Your Honours, in the legal

20 system that I come from, at this stage of the

21 proceedings, a decision is taken on suspending the

22 proceedings on the basis of a ruling of the court

23 whether there is still reasonable grounds to suspect

24 that the accused has committed a criminal offence. In

25 the wording of our motion, we relied on the experiences

1 of our colleagues from the common law system and that

2 is why the motion was worded alternatively.

3 We claim that there is no prima facie case

4 and if that implies dismissing the indictment, we abide

5 by that, but if the Trial Chamber finds that a prima

6 facie case has been established for any element of the

7 counts against him, the Defence will present its

8 evidence.

9 MR OLUJIC: Your Honours, with respect to

10 Mr Zdravko Mucic, I should like to underline that we

11 also believe that, at the end of the

12 examination-in-chief, a motion can be made to dismiss

13 the indictment, and that is what we have tried to argue

14 in our written brief from which it is visible that our

15 proposal is directed in that direction in the first

16 place, that is, that no prima facie case has been

17 established, but if the court should not accept such a

18 position, then the Defence will continue with

19 presenting its case.

20 JUDGE KARIBI-WHYTE: We now know where we

21 are -- there was confusion as to the procedure being

22 adopted. You have all read each other's submissions,

23 so I think the areas of real disagreement might be --

24 I have not read this one (indicating), which has just

25 been received this morning, but I have read the other

1 submissions and if you can only now possibly limit

2 yourself to those areas which you think you want to

3 emphasise, instead of going through the whole system.

4 We have the documents themselves, so let us hear

5 argument on the motion.

6 MR ACKERMAN: I want again to say good

7 morning to your Honours and to my colleagues of the

8 Prosecution. As you have suggested, your Honours,

9 I intend to be quite brief. I believe that the briefs

10 that have been filed in this matter are extraordinarily

11 comprehensive; that the issues have been very clearly

12 written and set out before you; and there is not a

13 great deal more that can be said that is not confined

14 within the pages of the briefs.

15 I think they have been fairly written, fairly

16 argued and fairly presented to you. It may be that you

17 have questions about some matters that are contained in

18 the brief that, between the four of us, we will be able

19 to respond to, to the extent we can.

20 The defendants Landzo, Delic and Delalic, in

21 addition to presenting to you a joint brief, will also

22 present to you a joint argument so that each of us will

23 not seek to address each of the matters raised in the

24 briefs, but divide it up and each of us will address

25 some different portion of that which we have argued to

1 you in writing.

2 I will talk to you, very briefly, about the

3 issues of international armed conflict and whether or

4 not common Article 3 is incorporated within Article 3

5 so as to give this court jurisdiction over common

6 Article 3 (charged offences).

7 To begin, I think it is important to set the

8 stage, so to speak. This Tribunal was created pursuant

9 to Chapter 7 of the Charter of the United Nations for

10 the purpose of assisting the United Nations in

11 restoring peace and security to the former Yugoslavia.

12 So, the primary mission then of this Tribunal is to do

13 what it can to assist in that process.

14 The specific mission based upon that is, of

15 course, to bring to trial, in a fair and meaningful

16 way, those persons accused of having committed

17 violations of international humanitarian law during the

18 conflict in the former Yugoslavia. Clearly, when you

19 view the mission as being one of assisting the United

20 Nations in restoring peace and security to the former

21 Yugoslavia, that necessarily implies that this court's

22 mission is a public one. It is one that cannot succeed

23 but for the perception that the residents of former

24 Yugoslavia and the rest of the world have of this

25 court.

1 The rest of the world and the residents of

2 the former Yugoslavia must be able to view this court

3 as a calming influence, as a place where justice is the

4 watchword, as a place where fairness is the watchword.

5 I think this court can never hope, in its

6 most ambitious expectations, to satisfy certain radical

7 elements in Serbia, Bosnia-Herzegovina, Croatia, that

8 it is a just court. I think that is a false hope,

9 because, when Serbians are on trial, Serbs will always

10 see you as being unfair for putting them on trial in

11 the first place. We have seen that in the press, we

12 have seen that in letters that have been sent to the

13 Office of the Prosecutor from various organisations.

14 We see criticism from the radicals of what we are doing

15 here, so we cannot hope to influence, I think, those

16 people, but we can hope to influence and to show both

17 the world and the residents of former Yugoslavia that

18 this is a place that is fair, that this is a place that

19 is just, and it is a place in which they can put their

20 confidence. That is what I would hope as we look back

21 on the work of this court, years from now, to be able

22 to conclude that this Tribunal did.

23 The key then, to me, to accomplishing that,

24 is an abiding concern for law and justice and, to

25 accomplish law and justice, I think the most important

1 thing in any society is that we have an independent

2 judiciary; judges who can be counted on to apply the

3 law as it has been given to them, with honesty, with

4 dignity, and without fear or favour.

5 If we look back in history at the judges we

6 all remember from history, the ones we have learned

7 about in our studies, the ones we have read about in

8 our readings who are revered, without exception, those

9 are judges who, both at the time they sat on the bench

10 and at the time -- and today, are seen as having been

11 just and have operated with that honesty and integrity

12 and without fear or favour. Many, many times what they

13 did on a particular day was not popular. What they did

14 on a particular day was not acceptable to many people,

15 but, looking back, we know that they were just, we know

16 that they were fair and that is why we revere them.

17 They demonstrated in their work an

18 independence which is the watchword for a judge, and

19 they demonstrated a commitment to law and justice,

20 which we all now very much appreciate.

21 All we can ask of you, and all the parties

22 I think in this room ask of you, is to be that kind of

23 judge. It is important that, at the end of the day,

24 this Tribunal be seen as having been a just place in

25 which law was paramount.

1 Let me address very briefly the issue of

2 international armed conflict. Your Honours know full

3 well that the Tadic Trial Chamber addressed that issue

4 in its decision in the Tadic case, and made findings

5 essentially that there was no international armed

6 conflict after 19 May 1992, and concluded that, as a

7 result of that, the persons were not protected because

8 it was not international armed conflict.

9 The question that we have raised and one that

10 is of issue before you is what is the effect on this

11 Trial Chamber of that decision by the Tadic Trial

12 Chamber. We argue to you, and have argued to you, that

13 it should have a binding effect, or at least a strong

14 persuasive effect for this reason: the Office of the

15 Prosecutor was a party to that case. The issues

16 regarding international armed conflict in that case

17 were identical to those in this case. The Office of

18 the Prosecutor had a full, fair and complete

19 opportunity to present evidence and to argue and brief

20 that evidence before that Tadic Trial Chamber -- and

21 they did so.

22 Unless the Office of the Prosecutor has

23 brought before this Trial Chamber evidence that was not

24 available to it at the time of the Tadic trial,

25 evidence that did not exist at the time of the Tadic

1 trial, then it is our contention that, under the

2 doctrine of collateral estoppel, they should not be

3 permitted to re-raise the factual aspects of that Tadic

4 decision, but only the legal issues that might be

5 involved with it, because, they should be estopped from

6 continually attempting to establish the same thing in

7 the same way, since they were a party to that prior

8 case.

9 The question, if that is correct, then

10 becomes: what is there in the Celebici trial that

11 differs from what was presented by the Office of the

12 Prosecutor in the Tadic trial? Our suggestion to you

13 is that there is no difference that is meaningful. The

14 primary testimony in the Tadic trial was that of Dr Gow

15 -- the primary testimony in this trial on that issue

16 is that of Dr Gow. You will recall that Dr Gow sat in

17 that witness chair and was asked, "What new information

18 about international armed conflict did you bring to us

19 today that you did not know when you testified in the

20 Tadic trial?" His response was, "There is no new

21 information. There may be some things that I have

22 learned since Tadic, but they do not change my broad

23 standing of what occurred in the former Yugoslavia".

24 The Office of the Prosecutor has suggested to

25 you that the diary of Borisav Jovic, which was admitted

1 as an exhibit in the Celebici case, was not available

2 at the time of the Tadic trial and that that is a

3 difference.

4 However, in the Tadic trial, as you will

5 recall Dr Gow telling you, the segment of a videotape

6 from the BBC programme on, "The Death of Yugoslavia",

7 in which Borisav Jovic, he said the same things as he

8 said in the diary, so the Tadic Trial Chamber had

9 exactly the same information before it. I think more

10 important than that, it is not whether or not new

11 evidence came to you that was not available to Tadic

12 but what the quality of that evidence is. It can only

13 have impact if that evidence were specifically directed

14 to the issue of effective control by FRY over Bosnian

15 Serb forces. That was the issue that was paramount

16 before the Tadic Trial Chamber and that is the issue

17 that is paramount here. There can be no international

18 armed conflict if FRY was not exerting effective

19 control over the activities of the Bosnian Serbs.

20 JUDGE JAN: Can a finding on the question of

21 a fact be relevant in another case?

22 MR ACKERMAN: Under the doctrine of

23 collateral estoppel --

24 JUDGE JAN: Without a finding of fact?

25 MR ACKERMAN: Yes, yes.

1 JUDGE JAN: Between the same parties?

2 MR ACKERMAN: As long as there is a party

3 identity, and, in this case, there is a party identity;

4 the Office of the Prosecutor was a party in both

5 cases. What we suggesting is --

6 JUDGE JAN: I am not sure that that is how

7 you look at it. Each case has its own evidence, it has

8 to be viewed independently. Can a finding of fact

9 given in another case be regarded as relevant in

10 another case, just like a finding in a criminal case is

11 not relevant in a civil case even if the parties are

12 the same.

13 MR ACKERMAN: It can be, I think, and it

14 really depends. When a fact has been found against a

15 party, as it has been found against the Office of the

16 Prosecutor in the Tadic case, then, because they were a

17 party in the Tadic case and also a party in this case,

18 it is my argument that they cannot continue as a party

19 in successive cases to assert the same factual basis

20 and seek a different result. Whether or not it is

21 binding on this Tribunal of course is going to be up to

22 this Trial Chamber. That is a decision you have to

23 make, but it seems to me that, even if you will not go

24 so far as to say you are bound by it, you certainly

25 must give a great deal of weight to the view of your

1 fellow judges, who, I know, very carefully listened to

2 and considered that issue in Tadic. So, it may only be

3 persuasive, and that is still okay with me -- it should

4 be persuasive to you. Have I answered your question,

5 your Honour?

6 JUDGE JAN: As best as you could.

7 MR ACKERMAN: Thank you. I think I have

8 covered basically what I wanted to say about

9 international armed conflict. We contend, of course,

10 that that is an element of every count of the

11 indictment, because the indictment incorporates that

12 paragraph into every count by its specific language, so

13 that, with regard to each count of the indictment, one

14 of the things the Office of the Prosecutor must prove

15 is international armed conflict.

16 Let me now speak again, I hope briefly, about

17 Article 3 of Statute and whether or not common

18 Article 3 is incorporated therein. I invite you to

19 look carefully at what we have written with regard to

20 that. I do not want to expound on that to any

21 particular degree.

22 One of the questions that is raised before

23 you is the extent to which you might be bound by the

24 decision of the Tadic Appellate Chamber regarding

25 whether or not common Article 3 is within the

1 jurisdiction of this court. We suggest that you should

2 not, and we suggest you should not for a number of

3 reasons.

4 First of all, we must have firmly in mind

5 when we consider that that that Tadic Appellate Chamber

6 decision was a preliminary decision based upon motions

7 that had been filed in the case -- not a decision

8 following a complete trial of the case, and a complete

9 argument and briefing of all of the issues. It can be

10 seen as perhaps nothing more than a permission for the

11 case to go forward, putting the Prosecutor to their

12 burden to prove that common Article 3 is part of

13 customary international law, and we believe both in the

14 Tadic trial and in the Celebici trial, the Prosecutor

15 has utterly and completely failed in that burden.

16 The reason we say in addition that the Tadic

17 appellate decision is not binding upon you is that

18 whether or not something is a part of customary

19 international law is a mixed question of law and fact.

20 It is not just a legal issue, because, as you know, a

21 party who contends that some body of law has become

22 part of customary international law, according to the

23 ICJ, has the burden of giving a factual background to

24 support that. What is the practice of States with

25 regard to this issue? Do States generally consider

1 this body of law to be applicable to them? Do the

2 writers in the field fairly uniformly consider this

3 body of law to be customary international law? Those

4 are the kind of things you must always enquire into

5 when determining whether something is customary

6 international law or not. The opinio juris it is

7 called with regard to opinions of courts around the

8 world and the opinion of justices around the world.

9 When you view common Article 3 in that

10 context, I think it fails. It is quite clear,

11 I believe, that that Appellate Tribunal did not have

12 before it everything that it should have had before it

13 to make such a far-reaching decision, and that can be

14 the result of a number of things, one of them being

15 that it was a preliminary motion not adequately briefed

16 and not adequately argued.

17 The Office of the Prosecutor has taken the

18 position, for instance, in its response to the

19 pre-trial briefs of the defendants in this case, that,

20 with regard to an issue that had been decided by the

21 Tadic Appellate Chamber, that it had not been fully

22 briefed and argued and, therefore, should not be

23 binding on you, so to some extent we both agree on

24 whether or not something has been adequately briefed

25 and argued should have something to do with whether it

1 has binding effect or not.

2 There is nothing, for instance, in the Tadic

3 appellate decision that refers to the statement -- the

4 report of the Secretary-General of the United Nations

5 on the establishment of the Rwanda Tribunal, that is

6 not mentioned in the Tadic appellate decision,

7 apparently was not considered, or perhaps not even

8 known to the judges who arrived at that decision, and

9 I think it is a compelling and telling statement by the

10 Secretary-General when he says with regard to the

11 Rwanda Statute that in that Statute common Article 3 is

12 being criminalised for the first time, almost two years

13 after the adoption of the Statute of this court and the

14 Office of the Prosecutor has not responded to our

15 argument in that regard, they have not tried to explain

16 to this Tribunal why it is the Secretary-General would

17 have said that, if he did not believe it to be true and

18 if it were not the law, or why the Security Council, in

19 adopting a Statute for the Rwanda Tribunal,

20 specifically included an article specifically

21 incorporating common Article 3.

22 If the Security Council had believed at the

23 time of the Rwanda Statute in its adoption that common

24 Article 3 was included in the ICTY Statute, then there

25 would be no reason to do anything but put Article 3 of

1 the ICTY Statute in its entirety into the Rwanda

2 Statute. There is a reason why a specific section was

3 written incorporating common Article 3. It was because

4 it was the first time they were interested in doing

5 that and the Secretary-General said, for the first time

6 common Article 3 is being criminalised, several years

7 after all of the events that are before you in this

8 case occurred -- four years after.

9 JUDGE JAN: I just want to find out factual

10 information. Was Rwanda a party to the Geneva

11 Conventions?

12 MR ACKERMAN: I cannot answer that. I think

13 so. I think there were only a couple of States in the

14 world, two or three, Burma I know is one, who is not a

15 party. So I think Rwanda probably was, and I can

16 supplement, if you would like me to, by letter, and

17 advise you of that within the next 24 hours.

18 JUDGE JAN: Thank you very much.

19 MR ACKERMAN: Would you like me to do that?

20 JUDGE JAN: I would like to know for my

21 information only.

22 MR ACKERMAN: I will find out tomorrow.

23 JUDGE JAN: It has not bearing at all --

24 MR ACKERMAN: Alright. The final thing

25 I want to discuss with you on this issue is the

1 response by the Office of the Prosecutor that, by

2 looking at the statements of various representatives to

3 the Security Council at the time of the adoption of the

4 ICTY Statute, it is clear that there was an intention

5 that common Article 3 be included as under 3 of the

6 ICTY Statute.

7 A close and fair reading, your Honours, of

8 those remarks, I think makes it abundantly clear that

9 that is not the case; that those representatives were

10 not suggesting in their remarks that common Article 3

11 was part of the jurisdiction of this Tribunal. I would

12 like to specifically refer to that.

13 The brief response of the Office of the

14 Prosecutor on that issue mentioned the remarks of the

15 French delegate, the US delegate, the delegate from the

16 United Kingdom and the delegate from Hungary. The

17 French delegate, in speaking about Article 3 of the

18 Statute, said this:

19 "I should like to make a few brief comments

20 on this subject" -- that being the Statute

21 -- "firstly, the expression 'laws or customs of war'

22 used in Article 3 of the Statute covers specifically,

23 in the opinion of France, all the obligations that flow

24 from the humanitarian law agreements in force on the

25 territory of the former Yugoslavia."

1 He is talking about the agreement of 22 May

2 that was entered into between Republika Srbska, Croatia

3 and Bosnia-Herzegovina regarding the application of

4 portions of the Geneva Convention under the auspices of

5 the International Committee of the Red Cross. If you

6 go to Ms Albright's remarks, you see the same thing.

7 She says:

8 "Firstly, it is understood that the laws and

9 customs of war referred to in Article 3 include all

10 obligations under humanitarian law agreements in force

11 in the territory of the former Yugoslavia at the time

12 the acts were committed, including common Article 3 of

13 the 1949 Geneva Conventions, and the 1977 Additional

14 Protocols to these Conventions."

15 Her understanding that that agreement of

16 22 May included common Article 3 and Protocol 1. If

17 you look at the remarks of Sir David Hannay from the

18 UK, he just very peripherally mentions Article 3 of the

19 Statute and says nothing about common Article 3, or any

20 humanitarian law agreements and if you look at the

21 comments of Mr Erdos from Hungary he speaks about

22 neither common Article 3 or Article 3.

23 I have noted in my brief and will just very

24 briefly --

25 JUDGE JAN: This 22 May agreement, I think

1 the last clause states it will come into force after

2 the parties have ratified it; did the parties ratify

3 it?

4 MR ACKERMAN: Not to my knowledge. They may

5 have, but not to my knowledge. That is another issue

6 upon which I think the Office of the Prosecutor and us

7 are in agreement, that that agreement of 22 May has no

8 impact on this case.

9 JUDGE JAN: That is good enough.

10 MR ACKERMAN: Because it was not alleged in

11 the indictment and no part of the indictment is based

12 on the contents of that agreement. The Tadic Appellate

13 Tribunal has spoken to that, the Office of the

14 Prosecutor has conceded that and we have of course

15 argued that, but it is interesting --

16 JUDGE JAN: After you have finished with

17 this, the declaration of war issued, I think some time

18 in June, by the Bosnian State -- there is a clause 4

19 there with regard to the application of humanitarian

20 laws and conventions. Have you seen that?

21 MR ACKERMAN: I do not have a specific

22 recollection.

23 JUDGE JAN: Declaration of war - it is one

24 of --

25 MR ACKERMAN: I think, just kind of in

1 closing, that it is real clear when you look at the

2 statements of these representatives, that they were not

3 talking in the context of their understanding that

4 common Article 3 was incorporated into Article 3, but

5 only their understanding that it might be possible to

6 charge common Article 3 offences under Article 3, based

7 upon the agreement of 22 May that had been entered into

8 by the warring parties in Bosnia-Herzegovina.

9 JUDGE JAN: Three parties are mentioned who

10 have committed aggression. One is the Republic of

11 Serbia and Montenegro; secondly, JNA; and, thirdly, the

12 Terrorist Democratic Party, whatever it is -- I am

13 talking about the proclamation of war.

14 MR ACKERMAN: That general issue,

15 I specifically discussed with Dr Gow. It is one of the

16 problems -- I think one of the major problems that this

17 Trial Chamber and all Trial Chambers in this court have

18 to deal with, and will always have to deal with. That

19 is the issue of credibility. The issue of credibility

20 is so much more pronounced here than in any

21 international court that I have ever appeared in. The

22 difference is profound, because the pronouncements of

23 parties to the conflict in Yugoslavia were frequently

24 pronouncements in an effort to achieve a certain

25 result, but without regard to whether or not it was

1 really true.

2 You will recall --

3 JUDGE JAN: Sorry for interrupting you. You

4 can continue now.

5 MR ACKERMAN: You will, for instance, recall

6 when I was talking with Dr Gow about Lord Owen, and his

7 comments about the most perplexing and frustrating part

8 of his work was trying to find out what was the truth,

9 that he had a very difficult time getting people to

10 tell him the truth. One thing that is extraordinarily

11 clear was that, for a significant period of time, the

12 Government of Bosnia-Herzegovina was very anxious for

13 the world to see them as victims of external aggression

14 to try to get aid to assist them in their efforts.

15 I think we cannot look to a statement like

16 that that has a clear political purpose, but, rather,

17 look at what we know about what was going on on the

18 ground and what we can learn about what was going on on

19 the ground, so I think, perhaps that is an answer to

20 your question, Judge Jan.

21 I think I have concluded the remarks that

22 I wanted to make to you.

23 JUDGE KARIBI-WHYTE: Let me see whether you

24 can clarify a few things. Your argument with respect

25 to Article 3, the common Article 3 being part of

1 Article 3 of the Statute, has been based on the

2 interpretation of the words of Article 3 of the

3 Statutes. You tried to suggest that the items

4 indicated in Article 3 did not envisage those which

5 were the type of warfare materials envisaged in common

6 Article 3.

7 MR ACKERMAN: Yes.

8 JUDGE KARIBI-WHYTE: But do you think that

9 is consistent with the definition of the words "shall

10 include", which is expansive in nature, and not

11 necessarily exclusive of other matters?

12 MR ACKERMAN: Your Honour, there clearly in

13 Article 3 is a clause which permits incorporation of

14 other offences within Article 3. There is no question

15 about that. One way I have talked about this to my

16 colleagues is if a State were to pass a penal statute

17 which says, "The following things among others shall be

18 illegal -- breaking open parking meters, spitting on

19 the sidewalk, throwing rocks through windows" and then

20 a Prosecutor were to say, "Well, since it is

21 said 'among other things', we are going to charge

22 murder under this statute," we would all see that as

23 totally preposterous and ridiculous because the

24 principle of crimen sine lege says you are entitled to

25 know what a statute prohibits and any time you have

1 language in a statute which says, "the following things

2 among others shall be illegal", you have serious

3 problems with that principle.

4 The only way in my view that you can conform

5 that statute to that principle is if the "among others"

6 only refers to like offences -- similar offences.

7 Clearly, Article 3, if you compare it to The Hague

8 Convention, was simply an attempt by the writer to

9 place in statutory form the provisions of The Hague

10 Convention. No effort was made there, and clearly no

11 effort was made there, to incorporate common

12 Article 3.

13 When the Security Council wanted to put

14 common Article 3 in a Statute for an International

15 Tribunal, they did it. They did it directly, they did

16 it completely, they did it in a full article of the

17 ICTR Statute. You have to look not only at the meaning

18 of those words "among others" and what could be

19 included there, but you have to look at the intent of

20 the Security Council. It seems to me that intent is

21 extremely clear when you look at what happened with the

22 ICTR Statute, and when you look at the remarks of the

23 Secretary-General regarding that Statute.

24 JUDGE KARIBI-WHYTE: I am not speaking here

25 about the subsequent experience. The Rwanda Statute is

1 a subsequent experience, which perhaps might have

2 occurred to them to specifically do after the

3 experience of the ICTY. Although one would say that

4 when the ICTY was drafted, one could have construed the

5 provision to include all other matters which could be

6 read meaningfully to it. I am not saying that that was

7 the intention -- I did not say so. I am merely saying

8 that if it was subsequently specifically so named does

9 not mean that that could not be read into it, if the

10 offences, or the like offences could be associated with

11 them.

12 MR ACKERMAN: If, your Honour, that is the

13 case, if that can be read broadly enough to include

14 something entirely different from the list, then that

15 is only part of the exercise. The next part of the

16 exercise --

17 JUDGE KARIBI-WHYTE: It is not analogous at

18 all. To "include" does not merely mean inter alia.

19 "Inclusion" incorporates many more things than that.

20 This is not a case where perhaps you are referring to

21 it generally. They are talking about violations of law

22 and the concepts of war.

23 MR ACKERMAN: What is contained in there is

24 what is generally referred to by writers as, "the law

25 of The Hague", which deals with the matter in the way

1 the war is conducted, not humanitarian issues.

2 In addition, and I think this is crucial,

3 when the Office of the Prosecutor seeks to incorporate

4 into Article 3 something contended to be customary

5 international law, as the ICJ says, they have the

6 burden of proving that. They have the burden of

7 proving, because they have alleged common Article 3 in

8 this case, that common Article 3 is part of customary

9 international law. I submit that is a burden which

10 simply cannot be met.

11 You would think that if one could even come

12 close to achieving that burden, you would at least be

13 able to show one case from anywhere in the world where

14 common Article 3 was the basis for a criminal

15 Prosecution. Now, I am sure you, Judge Karibi-Whyte,

16 know a great deal more about this than any of us in the

17 rest of the room do, but the Tadic Appellate Chamber

18 referred to a couple of prosecutions from your country,

19 Nigeria, and their reference appears to be newspaper

20 articles and they concluded, apparently, that those

21 prosecutions may have been based on common Article 3.

22 I think they probably were not. Another of

23 the Nigerian cases they refer to in that regard we have

24 managed to get our hands on, and it was based strictly

25 on domestic murder law and the trial was on domestic

1 murder law. It was a situation where a Biafran officer

2 killed a Biafran soldier and in that case the murder

3 prosecution was based strictly on domestic murder law

4 -- nothing in there about common Article 3. I hunch

5 that is the same with the other two cases, but you are

6 probably in a better position to know that than any of

7 us and I would certainly defer to your knowledge of

8 your own country in that regard.

9 But nowhere else have any of us been able to

10 find one case where common Article 3 formed the basis

11 for a criminal prosecution. It cannot be part of the

12 opinio juris of the nations if nobody treats it that

13 way. The United States Congress, after the remarks of

14 Ms Albright before the Security Council, adopted the

15 War Crimes Act of 1996, criminalising the grave

16 breaches provisions of the Geneva Convention of 1949,

17 but specifically refusing to include therein common

18 Article 3 violations, so as late as 1996 the United

19 States Congress did not believe it was customary

20 international law and part of the opinio juris and did

21 not include it in the Statute. May I answer any other

22 questions?

23 JUDGE KARIBI-WHYTE: I see your point.

24 I see you are relying on the comment that the Rwanda

25 trial was the first time common Article 3 has been

1 criminalised by legislation. The criminalisation of

2 humanitarian infractions have not been so common. It

3 is not known to be so regularly done, except perhaps a

4 country decides to do it on its own. Even if it is

5 that new, it would not surprise anyone. It may be one

6 of the slips of legislation. This does not really

7 represent my view. I am only listening to arguments.

8 MR ACKERMAN: If that is true, if what the

9 Secretary-General said is true, that it was

10 criminalised for the first time by that Statute, and

11 there is no evidence that anybody challenged that

12 statement, the Security Council adopted that report,

13 there is no evidence that any member of the Security

14 Council said, "Wait a minute, we did that with the ICTY

15 Tribunal". It was an accepted statement. If it is

16 true that it was criminalised at that time for the

17 first time, then it was not in 1992, when the events

18 that are the subject of this case occurred.

19 JUDGE KARIBI-WHYTE: Yes, Mr Ackerman, but

20 that may be an argument at that time and parallels can

21 be drawn later, even outside the floor of such

22 arguments, reminding other persons of the same pattern

23 (INAUDIBLE) legislations. Because nobody mentioned it

24 there does not mean that it could have been done

25 (INAUDIBLE) legislation.

1 MR ACKERMAN: However, it is in our view the

2 burden of the Office of the Prosecutor, when they

3 suggest that common Article 3 is part of customary

4 international law to show that to you and to prove that

5 to you under the very, very strict requirements that

6 have been adopted on a number of occasions by the ICJ.

7 JUDGE KARIBI-WHYTE: Thank you very much.

8 MR ACKERMAN: Let me just very briefly add a

9 personal note. This may very well be the last time

10 that I will stand and address you. I want to tell you

11 how much I have enjoyed being here, how privileged

12 I felt being here, how much I have enjoyed the repartee

13 and relationship I have had with this court and all my

14 other colleagues in this Trial Chamber. I will miss

15 you all very much, and I care a great deal about all of

16 you, and I will be a bit lonely for a while back in

17 Houston, Texas. I hope maybe some day I can come back

18 and see you again.

19 JUDGE KARIBI-WHYTE: We have enjoyed all

20 your contributions. We hope we will have another

21 opportunity to meet you at some time.

22 MR MORAN: May it please the court, good

23 morning, your Honours. I would like to talk about a

24 couple of things. I am going to keep it short. The

25 first thing I would like to chat about is the

1 Prosecution's argument that this court should not be

2 determining what the elements of the offence are at

3 this stage. Secondly, I would like to talk about the

4 nationality issue that has come up. Thirdly, I would

5 talk a little bit about the status of people as

6 prisoners of war. Then I will talk in general about

7 command responsibility and apply that to the Delic case

8 in particular, because it stands in a little bit

9 different posture.

10 In their response to our memorandum, the

11 Prosecutor says on page 9 of his brief -- 9 and 10 --

12 basically, that this is not an appropriate time for the

13 Trial Chamber to be citing what the elements of the

14 offence are and we ought to wait until all the evidence

15 is in, and you hear the arguments of counsel before you

16 decide what constitutes a crime.

17 To me, that is a rather foreign concept.

18 I thought that crimes were defined and then there was

19 an indictment for a crime, and then the Prosecution was

20 put to its burden of proving each of the elements of

21 that offence and then, at this stage of the trial, if

22 there was a contention that the Prosecutor had failed

23 to make a prima facie case as to one or more of the

24 elements of one of the counts, the court had to decide,

25 and I do not know how this court can conceivably rule

1 on this motion unless it has a feel and decides what

2 constitutes a crime.

3 The Prosecutor's position that they laid out

4 in their indictment what they think is a crime, and

5 that is what they have to prove is a rather foreign

6 concept. When the Security Council created this court,

7 the Security Council did not pass a law, it did not

8 create new crimes, it did not create new definitions of

9 crimes, because the Security Council is not a

10 legislative body. What the Security Council did was

11 set up a Tribunal to consider and hear allegations that

12 certain people violated certain laws.

13 The Statute itself, while you look at it and

14 we talk about the Statute as creating this crime and

15 that crime, in fact what the Statute does is simply

16 give this court the power to hear certain kinds of

17 things.

18 I do not think that anyone would argue that

19 -- I am sure that the Secretary-General would not --

20 the Statute created a law or created a crime, or

21 defined a crime, because in his report the

22 Secretary-General, in paragraph 34, was very clear that

23 all they were trying to do was create a Tribunal to

24 consider those allegations, and I think this will

25 become a little crucial as we go a little further into

1 my argument. There are some areas where it appears

2 that the Statute of the Tribunal may have defined

3 offences slightly differently, or somewhat differently,

4 or even greatly differently, than the relevant

5 conventions, which we may be here to interpret and

6 apply.

7 With that, I will go to the issue of

8 nationality. The court is real familiar with our

9 position -- I have made it clear since my initial

10 pre-trial brief that was filed, I hate to say this,

11 over a year ago, and our position is to be a protected

12 person under the Geneva Convention on Civilians, what

13 I refer to as the GCC, one has to meet the definition

14 in -- in article 4 of that Convention.

15 JUDGE KARIBI-WHYTE: Are you suggesting in

16 your first argument that there should be definitions of

17 substantive offences in international criminal law from

18 which the Prosecution could have derived its

19 criminality of offences?

20 MR MORAN: What I am saying is this, your

21 Honour: what I am saying is that there is

22 international law that is out there, this international

23 law was out there prior to the date this Tribunal was

24 created, and this international law will be out there

25 prior to the date that this Tribunal ceases -- excuse

1 me, subsequent to the date that this Tribunal ceases to

2 exist. The law may change, laws are always a growing

3 and changing concept. What I am suggesting, your

4 Honour, is this: when the Security Council created

5 this Tribunal, the Security Council lacked the

6 authority to pass laws. I think everyone is agreed on

7 that.

8 If you read my initial brief, I cite a man,

9 I believe, named Douglas, who wrote a Law Review

10 article, taking that position -- I think it is a proper

11 position -- that what the Security Council was doing

12 was, instead of creating offences or defining offences,

13 it was creating a forum for trials and, yes, your

14 Honour, there is some law out there -- there has to be,

15 or you cannot have a crime. Some of it is customary

16 law of war, and some of it is conventional law of war.

17 For instance, I think everyone has taken the

18 position that the four Geneva Conventions of 1949

19 constitute substantive law. They are not designed and

20 they were not written to be penal statutes but they are

21 substantive international law.

22 The additional Protocols of 1977, I think,

23 constitute substantive law, and you can look at those

24 Protocols, and you can decide, and you can determine

25 what is the law and then apply that law. I think it

1 becomes more difficult, frankly, when you are talking

2 about customary law of war, because in customary law of

3 war, we do not have somebody, some conference meeting

4 in wherever the conference met in 1949, to hash out a

5 written document, and we have to look at how these laws

6 have been applied and in customary law we also have to

7 look, I think, to what the nations of the world think

8 international law is, so that the nations of the world

9 will say, "This is customary international law, because

10 everybody applies it this way and we believe we are

11 required to apply it".

12 The best example I will be talking about in a

13 minute is command responsibility. We have both

14 customary and conventional law there. The customary

15 law is really built around five or six cases that were

16 tried after World War II, the Yamashita case, the

17 hostages case, the high command case, the Toyoda case

18 and, to some extent, the Tokyo Tribunal and based on

19 that, the nations of the world have said, "Command

20 responsibility is this"; and they have begun to apply

21 it.

22 Both sides have cited to you, for instance,

23 on the issue of command responsibility, the appropriate

24 military manuals from the United States and Great

25 Britain. We have also cited to you the decree from the

1 Socialist Federal Republic of Yugoslavia and its

2 military regulations. When you look at those, that

3 shows how the nations of the world interpret customary

4 law of war. As I say, your Honour, it is probably more

5 difficult to interpret customary law than it would be

6 to interpret conventional law, because you have

7 something that is a document that you can look at, but

8 it is there.

9 The World Court, the ICJ, has always

10 recognised customary law, international law. They

11 apply it every day. It is part of the body of law.

12 Have I answered your question, I hope, or have I gone

13 too far in answering it?

14 JUDGE KARIBI-WHYTE: You may carry on.

15 MR MORAN: Thank you, your Honour. On the

16 issue of nationality, this is something that is an

17 Article 2 count. It is clearly governed by the --

18 whether these people are protected persons is clearly

19 governed by article 4 of the Geneva Convention on

20 Civilians. It says, "These people are protected." It

21 uses the phrase, I believe, "in the hands of a party of

22 which he is not a national". If you are not in the

23 hands of a party of which you are not a national you

24 are not a protected person under article 4 of the

25 Geneva Convention on Civilians. We think the

1 word "nationality" has a pretty common and accepted

2 meaning among international lawyers, and we think that

3 this Trial Chamber -- any court -- anyone in the world

4 is quite capable of reading that paragraph in the

5 Geneva Conventions. It is not ambiguous, it is not

6 unclear. The Prosecutor seems to think that it is, or

7 that it should not be applied for various reasons, that

8 we should not give these words their common accepted

9 meaning. My position is that we should.

10 I think that the only evidence we have had on

11 what constitutes a nationality came from Professor

12 Economides. He was here to help us with what

13 constitutes both conventional and customary

14 international law. Right now, there is not a lot of

15 conventional international law on nationalities.

16 Professor Economides and his colleagues on the ILC are

17 trying to write some, but I think it was his testimony

18 as to what is customary law and what is the practice of

19 nations right now, because nations believe that that is

20 the law, is that, upon a secession or disintegration of

21 a country, people become nationals of the area where

22 they are habitually a resident, or, stated a little

23 differently and maybe a bit better, if a person is a

24 habitual resident of an area and that area becomes a

25 separate State, they become nationals of that country.

1 At some point they may have an option of choice to

2 choose a different nationality, but that is something

3 that they have to exercise.

4 There is absolutely no evidence in this case

5 that anyone ever attempted to exercise any kind of

6 choice. There is absolutely no evidence in this case,

7 in fact, that the residents of the Konjic area, who

8 became citizens or nationals of the Republic of

9 Bosnia-Herzegovina, upon the independence of the

10 Republic of Bosnia-Herzegovina, in fact ever had a real

11 right of option, that they could have chosen a

12 different nationality other than Bosnia.

13 In fact, one of the exhibits that

14 I introduced through Professor Gow was the constitution

15 of the Federal Republic of Yugoslavia. There are two

16 articles in there, article 2 and I believe article 17,

17 which, when read together, make it clear as there can

18 be that there was no right of option under that

19 constitution.

20 There is -- I am not sure whether this is a

21 factual question or not before the court. I have been

22 thinking about this all night. Professor Economides

23 testified as to the demise of the Socialist Federal

24 Republic of Yugoslavia --

25 JUDGE JAN: He said that it ceased to exist

1 on the day the Security Council passed a resolution and

2 I asked him whether the Security Council recognised

3 what had already happened, or whether by this

4 resolution it ceased to exist. He insisted it ceased

5 to exist on the day the Security Council passed the

6 resolution. Dr Gow took a slightly different

7 position. He said the State ceased to exist when the

8 person representing the President was not allowed to

9 become the President. That is Dr Gow's position.

10 MR MORAN: Yes. My position is the

11 secession of the SFRY is more a legal question. I do

12 not think there is a credibility choice between

13 Dr Economides -- whether he is telling the truth or

14 Professor Gow.

15 JUDGE JAN: It is not a question of truth

16 but a question of opinion.

17 MR MORAN: That is right. I think this

18 Trial Chamber can decide, has the evidence before it to

19 decide as a matter of law the SFRY ceased to exist on a

20 certain date. Even if that date was after May of 1992,

21 based on Professor Economides' explanation of

22 nationality, the residents of Bosnia-Herzegovina may

23 very well have been dual nationals of SFRY and

24 Bosnia-Herzegovina, but, when the Socialist Federal

25 Republic ceased to exists, and I believe that was on

1 27 April at the latest, but that is something for the

2 court to decide, there was no more SFRY, there was no

3 more SFRY nationality and everybody became a national

4 of Bosnia-Herzegovina, and, at that point, until there

5 was some affirmative effort to break that nationality

6 bond or to accept another nationality, everybody there,

7 regardless of their status as inmates, prisoners,

8 guards, members of the Bosnian military, or members of

9 the Bosnian Government, they all remained nationals of

10 Bosnia Herzegovina until such time as, in Professor

11 Economides' testimony, they made an affirmative act to

12 break that -- to accept another nationality.

13 Your Honour, I just notice there is a break

14 due in five minutes. Can I finish this section and

15 then break and come back, or do you want me to -- I may

16 be a little more than five minutes.

17 JUDGE KARIBI-WHYTE: We will rise and come

18 back at 12 o'clock. The Trial Chamber will rise and

19 resume at 12.

20 (11.25am)

21 (A short break)

22 (12.03pm)

23 JUDGE KARIBI-WHYTE: You may continue,

24 Mr Moran.

25 MR MORAN: Thank you, your Honour. Your

1 Honour, why have I talked so much about nationality?

2 The reason for that is this is an Article 2 count. The

3 Prosecutor bears the burden of bringing evidence to

4 show that these are protected people. The Prosecutor

5 is trying to make the issue whether or not they are

6 identified with one side or the other; whether or not

7 the fact that someone can be protected under the Geneva

8 Convention on Prisoners of War without regard to his

9 nationality has some bearing on how one would apply the

10 Geneva Convention on Civilians. Your Honours, I just

11 think that that -- all that is totally irrelevant. If

12 the drafters of the Conventions would have wanted to

13 say that people are protected if they are identified

14 with one side or another, they knew how to say that.

15 They made it very, very clear -- Pictet's commentaries

16 which we cited and quoted at some length are perfectly

17 clear as to what they said and what they meant.

18 Furthermore, both the Tadic Appellate Chamber

19 and the Tadic Trial Chamber seems to have rejected the

20 Prosecutor's argument. In paragraph 76, I believe it

21 is, of the Tadic appellate opinion Judge Cassese set

22 out a hypothetical situation where Bosnian Serbs were

23 in the hands of Bosnian Muslims and the Appeals Chamber

24 said, clearly, Bosnian Serbs did not constitute a

25 State, they would not be in the hands of a party to

1 which they are not a national.

2 It just turns out that that hypothetical,

3 which was handed down about four months before the

4 indictment in this case, is the facts of this case. In

5 the Tadic Trial Chamber decision from last May, if you

6 look at both the majority opinion and Judge McDonald's

7 dissenting opinion, there was no question about the

8 nationality -- it did not turn on that, the question of

9 whether or not the Bosnian Muslims who were in the

10 hands of Tadic and his cohorts were in the hands of a

11 party to a conflict of which they were not nationals.

12 The Trial Chamber basically said that the Bosnian Serbs

13 -- the Bosnian Serb forces were not the agents of the

14 Federal Republic of Yugoslavia; therefore, they were

15 not protected persons. That is clearly an implicit

16 finding, that the Bosnian Serbs, and the Bosnian

17 Muslims share the same nationality, so both the Tadic

18 Appellate and Tadic Trial Chamber seem to agree with

19 our position.

20 Jumping ahead to the issue of prisoners of

21 war, if the people who were inmates in the Celebici

22 prison are to be protected under international law --

23 article 2 under the Conventions, they have to be either

24 civilians or prisoners of war. In our initial

25 submission, we did not discuss prisoners of war, except

1 to say that there is no evidence that they are. The

2 Prosecution in its response said, "Well, some of them

3 may have been prisoners of war, and besides you can

4 decide they were either prisoners of war or civilians

5 who were protected by the Geneva Convention on

6 Civilians." The first thing I would suggest is that

7 the Prosecutor has to show, as part of the case on

8 article 2, that they were protected persons.

9 You cannot say, "well, maybe they were this",

10 or, "maybe they were that". They have to prove each

11 one of their named complaining witnesses is. Is this

12 person a civilian or is this person a prisoner of war.

13 As to prisoners of war, I laid out in our

14 response the article 4 definition. It is at page 19 in

15 our response that was filed yesterday. The Geneva

16 Convention on Prisoners of War lists six kinds of

17 people who can have prisoner of war status, and in a

18 short version, one of them is members of the armed

19 forces of a party to the conflict -- that can be

20 militia or volunteer corps, as long as they are part of

21 the armed forces. The second thing is members of

22 militias or other volunteer corps, including organised

23 resistance units belonging to a party to the conflict,

24 and those groups have to meet four conditions. They

25 have to be commanded by a person responsible for

1 subordinates, they have to have a fixed distinctive

2 sign recognisable at a distance, they have to carry

3 their arms openly and they have to conduct their

4 operations in accordance with the laws and customs of

5 war.

6 The third possibility is members of regular

7 armed forces possessing an allegiance to a Government

8 or authority not recognised by the detaining power.

9 That is the Free French from World War II. Pictet is

10 clear that that was put in to regularise the status of

11 the Free French.

12 The fourth group is persons who accompany the

13 armed forces -- that is air crews, war correspondents,

14 that type of thing. The fifth group is members of --

15 crews of ships. The sixth group is the levee en masse,

16 the people who rise up spontaneously on the approach of

17 an invader, to defend their homes.

18 They, too, must meet two criteria -- that of

19 carrying arms openly and respectimg the laws and

20 customs of war.

21 It is our submission that the only two

22 possibilities it could be here is -- to make the

23 inmates in the Celebici prisoners of war -- is that

24 they are either members of resistance groups, or a

25 levee en masse.

1 Let me show you why the evidence is clear

2 from the Prosecution's witnesses, taken in the light

3 most favourable to the Prosecutor, why they are not

4 entitled to prisoner of war status.

5 Uniformly, they denied that they were wearing

6 uniforms, with one exception and I will get that to

7 that one in a moment. They denied they were wearing

8 uniforms or fixed signs. There was no testimony at all

9 that they were commanded by a commander who was

10 responsible for his subordinates. The Prosecutor has

11 failed to show that they conducted their operations in

12 accordance with the laws and customs of war. But in a

13 more basic thing, the Prosecutor alleges in his

14 response that these people were part of the Serb

15 military. I did not hear any evidence of that. Maybe

16 I missed something, maybe I was not here one day, but

17 I did not hear anybody say, "We are part of the Bosnian

18 Serb military".

19 It was just the opposite -- the testimony

20 from person after person after person was that; "We

21 organised ourselves to defend our homes." With one

22 exception, which I believe was Witness M. The

23 Prosecutor cites in their response several pages of

24 testimony, transcript testimony, showing where these

25 people had testified -- various witnesses testified in

1 such a way that it may give them prisoner of war

2 status.

3 We decided to go in and just give you that

4 testimony, instead of making you look it up -- we put

5 it in our response, and it starts on page 26. The

6 closest that they come, that anyone comes, is

7 Witness M, and what Witness M testifies is that there

8 was a reserve police unit. Police are not members of

9 the armed forces. In fact, article 43 of Protocol 1

10 specifically requires that, before police or

11 paramilitary units are entitled to combatant status, so

12 that they can become prisoners of war, a party that is

13 going to incorporate their police into the military,

14 has to inform the other party. There is no evidence of

15 that here. There is no evidence that the inmates in

16 the Celebici camp were in any way, shape, form or

17 fashion members of a resistance group, or a military

18 unit that was part of one of the parties.

19 There does not have to be any direct

20 agreement or written agreement saying that the

21 Government in exile of The Netherlands recognises this

22 partisan unit, this resistance unit in the occupied

23 Netherlands, but there has to be some evidence that

24 there is at least a tacit understanding, some kind of

25 understanding, that the partisans belong to a party to

1 the conflict. That is totally missing here. It is

2 totally missing.

3 JUDGE JAN: Why were they detained -- not

4 all Serbs in Bosnia were detained. Why were they

5 picked up for that purpose?

6 MR MORAN: I think the evidence from

7 Witness D was, at a minimum, they were suspected of

8 violating Bosnian national law.

9 JUDGE JAN: Because they were linked with

10 the other side.

11 MR MORAN: Linked with the other side, I do

12 not know that is the test any place. It surely is not

13 for prisoners of war. Just because there is a war

14 going on, that does not give me the right to get my

15 trusty shotgun and go off and become a combatant,

16 absent being in a levee en masse. I have to be a part

17 of a party to the conflict.

18 In fact, in Pictet's commentaries to article

19 4 of the Geneva Conventions, Pictet discusses the

20 history of article 4 and shows that the authors of the

21 Convention chose to require this affiliation with a

22 party before vesting prisoner of war status in people.

23 I think the reason they did that was because, to give

24 this special status of prisoner of war to people, they

25 wanted to ensure that they were part of the armed

1 forces of a party to the conflict.

2 If you read article 4 as a whole, partisans

3 and resistance people are part of the armed forces of

4 their party.

5 JUDGE KARIBI-WHYTE: Perhaps if you

6 interpret their evidence, is it not part of the

7 argument of those detaining them that they were a risk

8 to the security of the war effort?

9 MR MORAN: Yes, your Honour, I think that is

10 real clear from Witness D's testimony. Given the fact

11 that they were nationals of the Republic of

12 Bosnia-Herzegovina, Pictet's commentaries and the

13 Geneva Convention on Civilians makes it pretty clear --

14 again, absolutely clear, that under international law

15 the authorities of the Republic of Bosnia-Herzegovina

16 clearly have during international armed conflict --

17 I am presuming for a moment this is international armed

18 conflict, I am not conceding it -- have the right to do

19 pretty much what they want to do with their own people

20 so long as they do not commit genocide or crimes

21 against humanity.

22 The best example I can give is out of my

23 country. It is not one of the prouder moments of the

24 US Supreme Court, but the Japanese internment cases

25 from World War II. My Supreme Court held in 1943 and

1 1944, in cases which I cited in my pre-trial brief, or

2 pre-trial memo, that it was perfectly legal for the

3 United States to lock up Japanese-Americans, citizens

4 of the US of Japanese ancestry, solely based on their

5 ancestry. Again, that is not one of the prouder

6 moments of my court and I would sure hate to defend

7 that, but that seems to be the law.

8 So, if the Government of Bosnia-Herzegovina

9 reasonably determined that these people were Bosnian --

10 if they were determined Bosnian nationals and they in

11 fact were Bosnian nationals they would have a right to

12 incarcerate and even if they were not Bosnian

13 nationals, if there is a reasonable belief that they

14 were a threat to the security of the State, then, at

15 least under what Pictet says, article 147 of the

16 Civilian Convention says, they have great latitude in

17 incarcerating them, based on a reasonable basis that

18 they constitute a threat to the State. Have I answered

19 your question to your satisfaction, your Honour?

20 JUDGE KARIBI-WHYTE: Yes.

21 MR MORAN: If not, that is what I am here

22 for, is to answer questions.

23 JUDGE KARIBI-WHYTE: These are not disputed

24 questions. You are merely making suggestions which you

25 think, in your opinion, was why this situation had

1 happened.

2 MR MORAN: Yes, your Honour.

3 JUDGE KARIBI-WHYTE: That is your view about

4 it and you are entitled to it.

5 MR MORAN: Your Honour, absent a showing by

6 the Prosecution of two things -- they have failed to

7 make a prima facie case as to the Article 2 counts.

8 The first is that there was an international armed

9 conflict. Mr Ackerman talked to that, and I am sure

10 the Prosecutor will talk to it and Mr Ackerman may talk

11 to it again.

12 The second is that the Prosecution must show

13 that the complainant in count 1, the complainant in

14 count 2, was a protected person under one of the four

15 Geneva Conventions. That is, I believe, paragraph 15

16 of their indictment, which is incorporated in every

17 remaining count.

18 Absent a showing proof that they were not

19 nationals of Bosnia Herzegovina, the Prosecutor has

20 failed to show that they were protected persons under

21 the Geneva Convention on Civilians. Absent a showing

22 that they were prisoners of war under the Geneva

23 Convention on Prisoners of War, that they meet that

24 test that I talked about in article 4 of the

25 Convention, they have failed to show that those inmates

1 were protected under the Geneva Convention on Prisoners

2 of War.

3 So, in that case, they have failed to make a

4 prima facie case as to each individual complainant.

5 Levee en masse -- the Prosecution mentioned

6 levee en masse in passing and said they may have

7 constituted a levee en masse. Levee en masse,

8 according to the Geneva Conventions on PoWs, is people

9 that rise spontaneously on the approach of an invader;

10 conceptually, the Republic of Bosnia-Herzegovina cannot

11 invade the Republic of Bosnia-Herzegovina. It just

12 does not work that way. The US cannot invade the US.

13 The United Kingdom cannot invade the United Kingdom,

14 even though my Irish ancestors may say they have.

15 JUDGE KARIBI-WHYTE: Even if there are

16 internal dissensions.

17 MR MORAN: Your Honour, if there is an

18 internal dissension you now have an internal armed

19 conflict, and it is not covered by article 2.

20 JUDGE KARIBI-WHYTE: So this is another

21 stroke you are trying to pull. If you say the US

22 cannot invade part of the US -- they can do so, to

23 dislodge persons who are declaring themselves different

24 -- and do so.

25 MR MORAN: In the mid 1860s we had an event

1 some of us call "the late unpleasantness", our civil

2 war. Those of us who are from the southern States, or

3 our ancestors, may have called President Lincoln's

4 forces "the invader", but I do not think President

5 Lincoln would have bought that.

6 JUDGE KARIBI-WHYTE: It depends on what side

7 of the divide you are.

8 MR MORAN: In a similar situation in your

9 country, in the late 1960s, early 1970s, there was the

10 Biafran rebellion. I suspect that the Government did

11 not consider itself to be an invader of the breakaway

12 areas. I think that as a matter of international law,

13 it was not. What your country was doing and what the

14 United States troops in 1861 were doing was putting

15 down a rebellion, but there was no question about the

16 boundaries of the United States ever changing. In the

17 mind of the United States and really in the mind of the

18 international community -- the international community,

19 the United Nations, recognised Bosnia-Herzegovina as an

20 independent country with certain borders. I think most

21 countries in the world, by May 1992, had done it.

22 Clearly the European Community did, the Security

23 Council did, the General Assembly did. Bosnia cannot

24 invade itself -- it just cannot do it.

25 Command responsibility: that is an area

1 which is a fairly complicated area of the law, and a

2 fairly important -- very important area of the law in

3 this case, both in general and as applied to my

4 client. I would first like to talk about command

5 responsibility in general terms, and then I am going to

6 narrow it down to how it applies to Mr Delic. On our

7 initial brief it starts on page 69. That is where the

8 discussion starts.

9 But, first, I would like to point to

10 something in the Prosecutor's brief. One of the areas

11 that we talked about was causation being a requirement

12 that must be shown. That was, I believe, on pages 75

13 and 76 of our initial brief. The Prosecutor said on

14 page 48 of his reply that we cited that with no

15 authority and that is frankly incorrect. We did cite

16 authority for the proposition that causation is an

17 element of command responsibility and that authority

18 was Professor Bassiouni's book, "Crimes against

19 Humanity". It is cited in our initial brief and it is

20 cited again in our response.

21 Command responsibility started as a concept

22 in international law with the 1907 Hague Conventions,

23 and it came to its fruition, as applied to at least the

24 military, with the post-World War II Tribunals. A

25 couple of national cases and several cases that were

1 tried by International Tribunals, or courts under

2 Control Council 10 law in the occupied Germany.

3 Control Council 10 set up the zonal courts so in the

4 American zone the American judges would try cases, in

5 the Russian zone the Soviet judges would do it and the

6 French and British zones.

7 Those key cases, of course, are the Yamashita

8 case, the Toyoda case, the Tokyo Tribunal, and then the

9 hostages case and the high command case. Looking at

10 those as a group, with the exception of the Tokyo

11 Tribunal, they all involved military commanders, and

12 essentially there were four things that had to be

13 proved -- four to five, depending on how you believe

14 it, and we will talk about that in a second, on what

15 you think the elements of the offence are.

16 The first was the status of the commander as

17 a commander. The second was that his subordinates had

18 committed a violation of the law of war. The third was

19 a knowledge requirement on the part of the commander

20 about those crimes and we will discuss the knowledge

21 requirement separately in a second.

22 The fourth was that the commander either

23 failed to take steps to prevent the crime, or failed to

24 investigate and punish the perpetrators of the crime.

25 That has been memorialised, if you would, in article

1 7(3) of the statute. That is a very separate concept

2 from article 7(1) of the statute, which is a personal

3 responsibility. Under 7(1), I am guilty of what I did

4 -- if I planned a crime, if I ordered a crime, if

5 I took part in a crime, I am guilty. Under a command

6 responsibility theory, I am guilty because somebody

7 else committed a crime and I did not stop it -- if

8 I meet those criteria.

9 The two unusual cases were out of the Tokyo

10 Tribunal. One was the conviction of some members of

11 the Cabinet of the Japanese Government for failing to

12 -- or for allowing abuses against prisoners of war.

13 The second was against General Muto, who was

14 General Yamashita's chief of staff and I will discuss

15 Muto in a minute, separately.

16 Subsequent to the World War II cases, there

17 was a lot written about command responsibility, but

18 this is the first international court to try a case on

19 a command responsibility theory, and apply

20 international law, that I know of, since the post-World

21 War II cases. After World War II, 1979, 1977, the

22 Protocol 1 was adopted, specifically articles 86 and

23 87. Instead of using the word "commander" it used the

24 word "superior". I believe, and I will show the court

25 why in a moment, that what that was was an attempt by

1 the parties to Protocol 1 to make it clear that

2 civilians who were in control could be held responsible

3 on a command responsibility theory.

4 An example of that would be the Kahan Report

5 from Israel after the massacres of the Palestinians by

6 the Phalangists. The Kahan commission looked at the

7 responsibility of the Israeli Minister of Defence, and

8 found that, under a command responsibility theory, he

9 was responsible for that massacre.

10 I think the two areas of contention in

11 general between the two parties here -- not speaking

12 about Delic -- I will speak about Delic separately in a

13 moment -- is the knowledge requirement and whether or

14 not the defendants' acts or failure to account caused

15 the crime.

16 The statute says, "knew or should have

17 known". In fact, that was the language that the United

18 States wanted included in articles 86 and 87 of

19 Protocol 1. The conference rejected that. I talk

20 about that a bit in our response, and they used the

21 standard which is different in the two official

22 languages. The English official language

23 says "possessed knowledge which should have enabled him

24 to determine"; the French version is "possess knowledge

25 enabling him to". There is a big difference. The

1 three different standards are pretty -- are very large

2 differences.

3 Under the "knew or should have known"

4 standard, which was rejected by the Protocol 1

5 Convention, if someone is not out looking for

6 information, he could be guilty. Under the English

7 version of Protocol 1, if he had information which

8 should have enabled him to conclude that there was a

9 crime committed, even if he never put all the

10 information together or could not figure it out, he

11 could be guilty of this offence.

12 Under the French version, he has to have

13 evidence that enabled him to conclude that -- enabling

14 him to conclude. So, he would actually have to

15 determine if there was a crime committed. I would

16 submit that the proper standard is the French standard

17 in Protocol 1.

18 If Protocol 1 is -- if we are to consider

19 Protocol 1 to be the law, international law on command

20 responsibility. We should accept the version which is

21 narrower, which narrows the criminalisation, if you

22 would, because it is the general rule every place

23 I have ever heard of. When you construe general laws

24 you construe them -- fairly, but in such a way that you

25 do not extend the criminalisation, but you narrow it --

1 you narrow what is a criminal act.

2 Causation: when I sat down and read

3 Professor Bassiouni's book I had not thought about

4 causation as being an element of command

5 responsibility, criminal liability. When I started to

6 think about it, he is right, that no matter what I do

7 as a commander or no matter what I do not do as a

8 commander, if my acts or failures to act do not lend

9 themselves to causing the crime, then why should I be

10 held criminally liable for that crime, if my acts or

11 omissions are not related to it?

12 Professor Bassiouni notes that it may be a

13 fairly difficult thing to prove, especially for

14 commanders who are physically some distance away. In

15 fact, applying a causation theory might, in my opinion,

16 have caused a different result in the Yamashita case.

17 But there has not been much that I have seen written on

18 the requirement of causation.

19 Frankly, with all the authorities I have

20 read, and I have read everything I can lay my hands on

21 command responsibility in the last year or year and a

22 half, nobody has thought about causation, except

23 Professor Bassiouni.

24 For instance, a failure to punish this

25 criminal offence may very well be the cause of the next

1 one, or the failure to properly supervise subordinate

2 commanders or subordinate units may be the cause of

3 this crime. The failure to properly train one's troops

4 in the laws and customs of war, as is required by the

5 conventions may be the cause of this crime.

6 Or, a refusal to investigate, or a cover-up

7 may be the cause of the next crime. An example of that

8 would be a case which I cited involving an American

9 general, whose name suddenly escapes me, but cited in

10 our brief, who was the commander of the division

11 involved in the My Lai massacre in 1967. That was the

12 case where a company of the US Americal division went

13 into a village in Vietnam and murdered a lot of people,

14 committed significant war crimes.

15 The division commander did a cover-up

16 investigation. There was no question about that. If

17 his actions were not the cause of the My Lai massacre,

18 his cover up of it could clearly be said to be the

19 cause of the next atrocities committed by his

20 division. Just because a person is a commander does

21 not mean that he is guilty under a command

22 responsibility theory, even if it is shown that his

23 subordinates committed an offence.

24 There has to be a showing, in my view, either

25 of actual knowledge of a violation of the law, or that

1 he possessed information leading him to conclude --

2 using the French standard, the French words out of

3 article 86 -- that a violation of war had been

4 committed, that he either did not take steps to prevent

5 crimes, or he did not take steps within his authority

6 to punish them, and that his dereliction was the cause

7 of the crime.

8 Hazim Delic: with the exception of General

9 Muto, this is the first case that I know of where

10 someone who was not a commander has been held

11 responsible, or attempted to be held responsible, for

12 criminal acts of others based on a command

13 responsibility theory. The Muto court -- I cited a

14 Law Review article talking that it was an aberration,

15 of doubtful precedential value. I agree. It was on a

16 different subject -- on the subject of holding civilian

17 leaders responsible, but I think that, because it

18 stands alone, the Tokyo Tribunal is a very, very

19 doubtful precedential value. When you look at both the

20 briefs that we filed, and the briefs that were filed by

21 the Office of the Prosecutor, we cite case after case

22 after case.

23 I am just looking at their brief right now

24 and I will just cite a couple. Toyoda, Admiral Toyoda

25 was the commander at various times of the Japanese

1 combined fleet, the Japanese escort fleet, and another

2 subordinate command. He held those commands at the

3 same time, and at the end of the war he was the chief

4 of the naval general staff, so the man was either one

5 of the highest ranking officers in the Japanese navy,

6 or he was the highest ranking officer in the Japanese

7 navy. He was tried as a commander -- command

8 responsibility theory -- for the crimes that were

9 committed by Japanese naval troops in Manila -- the

10 same crimes that General Yamashita hanged for; same

11 facts, same case.

12 What the Prosecutor did not tell you was that

13 General Toyoda was acquitted on all counts and the

14 reason he was acquitted was because he did not have

15 command of those troops -- even though he was superior

16 in rank to every one of them -- each and every one of

17 them.

18 The next case the Prosecutor mentioned is the

19 Mumathet case, and, reading their own quote, says he

20 was an important figure in the concentration camp,

21 "and, as an escort SS officer, wielded military power

22 of command". They cite Supreme Court of the US,

23 Yamashita, power to control the troops under his

24 command. The Trial Chamber is aware that I am not fond

25 of the Yamashita case. I --

1 JUDGE JAN: It is not a unanimous judgment.

2 MR MORAN: No. I think the part that

3 everybody looks at is dicta -- it is just pure dicta,

4 because the Supreme Court did not have to decide that

5 issue. They were presented with a different issue,

6 whether they had the jurisdiction to decide, and they

7 said, "no, we do not". Let us talk about the rest of

8 this anyhow.

9 The medical trial -- Prosecutor's quote:

10 "The law of war imposes a military officer

11 in a position of command."

12 Hostages case, the high command case --

13 I have cited, I have so many quotes on the high command

14 case in our brief, I will not even get into it any

15 more. It was commanders -- the people who were not

16 commanders were held responsible for what they did.

17 JUDGE JAN: They are based on strict tests

18 with regard to the military command test.

19 MR MORAN: You bet Judge, and here is why.

20 They say I do not understand the theory of command

21 responsibility. I do not know they understand what

22 command is. Generals Divjak and Pasalic told you what

23 command is. A commander, by virtue of the fact he is a

24 commander and for no other reason, has the power of

25 life and death over his troops. The personal power in

1 combat. He can say, "Jones, you go out there and you

2 take that hill. You are probably going to get killed

3 doing it, but you do it"; if Jones does not do it,

4 Jones goes to gaol. Only a commander has that kind of

5 responsibility in the military -- personal

6 responsibility.

7 People who are not commanders may be

8 delegated authority by their commander. The most

9 influential person in any military unit I was ever in,

10 after the commander, was the chief of staff. He was

11 more influential than the deputy commander, he was more

12 influential than anybody else, because he sat at the

13 right-hand of the commander. When he spoke you heard

14 the commander speaking. But that chief of staff has no

15 independent authority, except over his secretary and

16 his subordinates on the staff, and the high command

17 case held that the chief of staff is not even

18 responsible on a command responsibility theory, for

19 crimes committed by his subordinates on the staff. It

20 was the OQU -- everybody asked me what that is -- it is

21 the operations officer, which again is a very

22 influential position on any staff.

23 Clearly, the customary law of war as applied

24 to the military limits criminal liability on a command

25 responsibility theory to commanders -- because they are

1 commanders, because they are the people who have the

2 personal authority under the law, under the

3 regulations, and under international law. When you

4 look at the authorities that have been cited for what

5 military people believe, what nations believe

6 constitutes command responsibility.

7 I quoted Field Manual 2710 from the US army.

8 That is because, frankly, I have dealt with it for

9 years and I had a copy. The Prosecutors I think at one

10 point quoted the British field manual. If they did

11 not, Burnett's Law Review article I think it is talks

12 about it, and says with the exception of a couple of

13 words at the end it is the same. What does it say?

14 Under some circumstances commanders may be held

15 criminally liable. We quoted the Yugoslav regulations

16 from the SFRY. What does it talk about? Commanders --

17 it does not talk about staff officers, it does not talk

18 about deputy commanders -- it talks about commanders.

19 Then we have Protocol 1. Protocol 1 does not

20 use the word "commanders" in article 86, it uses the

21 word "superiors". I would suggest to the Trial Chamber

22 that the word "superior" rather than the

23 word "commander" was used in article 86 for a real

24 simple reason -- it was to get to the high ranking

25 civilian -- the civilian official that has the power,

1 the mayor who arranges, organises or allows

2 atrocities.

3 Frankly, let us get to Adolph Hitler, too.

4 He was a civilian and not a member of the military.

5 JUDGE JAN: He was a superior commander.

6 MR MORAN: He was a commander in chief of

7 the military, because he took that position, but he was

8 a civilian. Spehr was a civilian. Many of those

9 people were civilians, but they had what Fenrick calls

10 "military command-like authority". They had the same

11 kind of authority that a military commander has. That

12 is what "superior" means in article 86. If military

13 commanders or military people were to be tossed in with

14 everybody else, why do you need article 87 that talks

15 specifically about the duties of the military

16 commander. It is the commander in the military who

17 possesses this personal power. It is the commander in

18 the military who has the duty under international law.

19 It is the commander who is responsible for everything

20 that his unit does or fails to do.

21 What the Prosecution is asking this court to

22 do is a couple of things. One is to abandon 50 years'

23 worth of law now since high command and hostages and

24 say that we are going to look not at the command, not

25 whether or not he is a commander, but whether or not he

1 has more stripes on his sleeve or whether or not he has

2 more pips on his shoulders. Regardless of what you

3 call him, someone who is not a commander lacks that

4 kind of personal authority.

5 Secondly, Commander Burnett, in his Law

6 Review article which I cited at some length, talks

7 about some policy arguments on why you should limit

8 this to commanders. Remember that law of war, as we

9 talk about law of wars, is to a great extent created by

10 military people, for military people, and it has only

11 been in the recent past that it has gotten outside of

12 that.

13 In combat or even in peace time a commander

14 is the person who is responsible for that unit --

15 again, responsible for everything his unit does or

16 fails to do. If it fails to do something, he is

17 responsible. If it does something bad, he is

18 responsible. If it does something good, he is

19 responsible -- to his commander. If you start holding

20 the non-commander liable on a command responsibility

21 theory, what you are going to do is create an

22 international law obligation for that subordinate to

23 countermand the orders of his commander.

24 THE INTERPRETER: Microphone, please.

25 JUDGE JAN: I think the test that is laid

1 down (inaudible) -- the superior is in a position to

2 prevent or punish, but still he does not do that. He

3 acquiesces in the end. That is the test to be

4 applied. It does not matter what position he is in the

5 military hierarchy. That is why they left off the

6 chief of staffs in the high command case, they were not

7 in a position to prevent or punish. This is the test

8 they applied.

9 MR MORAN: Well, General Divjak -- that is a

10 good test to apply, because it is the commanders who

11 have the power to punish.

12 JUDGE JAN: Or prevent.

13 MR MORAN: Or prevent. The commander is the

14 one who in his own name can do it and the commander --

15 the two Bosnian generals --

16 JUDGE JAN: Only in this position, he can

17 prevent or punish.

18 THE INTERPRETER: Microphone, please.

19 MR MORAN: That is right. The Prosecutor

20 tries to draw this distinction between a de facto

21 commander and a de jure commander. I do not know what

22 that means. Command is a legal status. It is frankly

23 like being pregnant -- you are or you are not. You are

24 either the commander or not the commander. If you are

25 the commander you have these duties, you have these

1 obligations, you have these powers to carry out those

2 obligations. You may give some of this authority --

3 lend some of this authority to your subordinates, but

4 you keep the responsibility, you can never delegate

5 that responsibility, just authority.

6 A de facto commander, whatever that is,

7 because command is a legal status, he cannot have it.

8 He may be some other kind of leader, but he is not a

9 military commander. Even in a situation of a partisan

10 unit -- the Prosecutor says you may not call them

11 commanders. I do not care whether you call them George

12 -- command is a function and it is a legal set of

13 responsibilities, and a legal set of powers and even in

14 a partisan situation, to be a military unit under

15 article 4 of the Geneva Conventions on PoWs, they have

16 to be part of the military of a party -- part of a

17 party. When that party says, "Yes, that partisan unit

18 out there is part of us, they are ours," they are

19 vesting that commander with command authority -- the

20 responsibility and the powers that go with that

21 command.

22 Otherwise, if that commander did not have

23 that, then that partisan unit could not -- the members

24 could not be entitled to prisoner of war status,

25 because they do not have a commander who is responsible

1 for his subordinates. It has to go to the commander.

2 He has the power, he has the authority; he is, if you

3 would, "the man".

4 Are there any questions from the court on

5 command responsibility, or have I covered that pretty

6 well?

7 JUDGE KARIBI-WHYTE: I think there appears

8 to have been a confusion between the superiors of the

9 immediate commanders, who are deputies.

10 MR MORAN: Yes.

11 JUDGE KARIBI-WHYTE: Where does the

12 responsibility lie?

13 MR MORAN: In any military unit, commanders

14 command and their subordinates -- I am not talking just

15 about the level of a five star general or field

16 marshal. You get down to the squad level, there are 10

17 people -- nine people now, there are 9 people in the US

18 infantry squad. One of them is the squad leader. For

19 those purposes, he is the commander. The assistant

20 squad leader is not. It is that squad leader, that

21 platoon leader, and to a great extent it really does

22 not depend on rank or experience.

23 In the hostages case, the chief of staff had

24 a much higher rank than subordinate commanders. He was

25 a general officer. The subordinates were subordinates

1 -- they were much lower ranking. The commanders of

2 the battalions were probably lieutenant colonels. What

3 it has to do with is the status of command, and when

4 you say "superior", I believe that "superior" means a

5 civilian with military command-like power -- the same

6 kinds of power over subordinates as a commander.

7 Because they have the power to order, they have the

8 power to punish for failure to obey orders or for

9 violations of the laws and customs of war. Very

10 quickly, if the court -- have I cleared that up for

11 you, your Honour?

12 JUDGE KARIBI-WHYTE: Not quite. As between

13 a brigade and a squadron, which of them, up to their

14 higher authorities, if there are breaches within each

15 of these hierarchies, where does the responsibility

16 lie?

17 MR MORAN: Justice Murphy in the Yamashita

18 case, in one of the footnotes, asked the question you

19 are -- answered the question you are asking. He said,

20 "with this decision we may be sealing the fate of some

21 future President of the US, and his chief military

22 advisers". What you look at is the level of knowledge

23 and control. An example would be the My Lai massacre.

24 Telford Taylor -- General Taylor was the chief American

25 prosecutor at the Nuremberg trials after the big

1 trial. In 1967, 1968 and 1969 he wrote letters to the

2 New York Times saying that President Johnston should be

3 tried on a command responsibility theory for Mei Li.

4 In fact, he is wrong. First, there is no

5 showing anything that President Johnson knew -- that he

6 knew anything about it. Hopefully, the President of

7 the US has other things to do than worry about what a

8 company of about 120 soldiers is doing in the middle of

9 a major war. He has the whole war to worry about, plus

10 running the domestic economy and everything else. In

11 the normal course of business it would not get to the

12 White House.

13 JUDGE KARIBI-WHYTE: Why did it get to that

14 extent in the Yamashita case? Why was he responsible

15 for what was happening in the --

16 JUDGE JAN: He was a military Governor and

17 he should have known. The atrocities were so

18 widespread. One of the dissenting opinions from one of

19 the judges there thought that the evidence was not

20 properly considered and the trial had been held in a

21 hurry, and there were so many things which had to be

22 considered.

23 MR MORAN: I can tell you -- Yamashita kind

24 of bears a special case in what some of the scholars

25 look at. I can tell you how the US army Judge Advocate

1 Court analyse Yamashita. They analyse it as abandoning

2 his command. It was so widespread, there is no way he

3 could not have known. He effectively abandoned his

4 command, therefore he was responsible for what his

5 command did because he abandoned it.

6 JUDGE JAN: I want to find out -- is a

7 sergeant. (Inaudible).

8 INTERPRETER: Microphone, please, your

9 Honour.

10 MR MORAN: It depends on the army. In my

11 army you have two grades of private -- it has to do

12 with pay rates. The private 1 makes a little bit less

13 than a private 2 and then you have a private

14 first-class.

15 JUDGE JAN: Let us have private 2; is a

16 private under him who is about to commit a crime, and

17 he does not stop, is he not responsible.

18 MR MORAN: No, unless he is in command.

19 JUDGE JAN: Because of his said inaction --

20 MR MORAN: It depends on whether or not he

21 was in command.

22 JUDGE JAN: I do not think you go by the

23 status of the person. The test is whether he is in a

24 position to stop.

25 MR MORAN: Yes.

1 JUDGE JAN: And he does not stop.

2 MR MORAN: In your hypothetical situation,

3 Private E2 Jones may very well be the commander -- if

4 the war has been going badly, very badly, he may be the

5 highest ranking person there, and, therefore, under the

6 general law of command, he would assume command of

7 whatever unit it was.

8 JUDGE JAN: So long as he is superior, the

9 status does not count. And he is in a position to stop

10 or punish.

11 MR MORAN: In a military situation that goes

12 with command. The two are linked. Only the commander

13 can punish -- General Divjak told you that.

14 JUDGE KARIBI-WHYTE: Strictly speaking it is

15 one of imputed knowledge, is it?

16 MR MORAN: You can have imputed knowledge.

17 The high command case talked about that. They said

18 that if there is a report in your headquarters, and it

19 shows that there were crimes committed, the commander

20 cannot say, "Well, I did not read the report, sorry."

21 Those reports exist so the commander can know what is

22 going on. If he is not happy with the reports he is

23 getting, he can demand more reports. If he thinks

24 people are lying to him he can send people out to

25 check. That is why he has an inspector general. Yes,

1 you can have imputed knowledge or you can have

2 knowledge where you could not miss it. That is the

3 Yamashita case -- it was so widespread that the court

4 found General Yamashita had to know what was going on.

5 On the other hand, the more famous trial out

6 of the Mei Li case, involving Captain Medina, that was

7 tried on command responsibility theory by US court

8 martial. The trial judge said that there had to be

9 actual knowledge, and in fact the evidence showed that

10 Captain Medina, when he learned of the killings, when

11 he learned of the murders, put an end to them.

12 JUDGE JAN: Tried to cover up.

13 MR MORAN: The cover-up went a lot higher

14 than Captain Medina. So, yes, you have to look at the

15 standard you are applying. The article 86 standard --

16 article 86 has two standards, depending on whether you

17 like French or English.

18 JUDGE JAN: We go by our own Statute, should

19 we not?

20 MR MORAN: But applying the Statute -- again

21 because the Statute does not create substantive crimes

22 -- and the Secretary-General made that clear.

23 JUDGE JAN: The Rwanda Statute.

24 MR MORAN: No, in the report for this

25 Statute, he says we are not creating any crimes. I do

1 not think that anyone at the United Nations would say

2 that the Security Council is a legislative body that

3 can impose substantive offences on governments. All

4 that the Security Council did was take some provisions

5 of international law and say, "We are setting up a

6 court to try violations of these international laws."

7 Judge, I just -- I may be found wrong on that by the

8 Tribunal --

9 JUDGE KARIBI-WHYTE: Where do you derive the

10 substantive law?

11 MR MORAN: I think the substantive law comes

12 either from the Conventions -- clearly Article 2 -- you

13 have to apply the Geneva Conventions. There is no way

14 you can get around it, that is what Article 2 says, and

15 you look at what those -- where there is a Convention,

16 you look at the words on the Convention and you apply

17 that.

18 JUDGE KARIBI-WHYTE: They define offences as

19 such?

20 MR MORAN: Yes, article 144 of the GCC, and

21 I suddenly have a mental block on which article it is

22 in the Geneva Conventions.

23 JUDGE KARIBI-WHYTE: They name the offences

24 themselves but they have not defined them as a court

25 would.

1 MR MORAN: It is clear -- you are correct,

2 that nobody expected the Geneva Conventions to be the

3 penal code. When our legislatures -- whether we call

4 them legislatures, parliaments or congresses -- sit

5 down to write penal statutes, they will do it in

6 considerably more detail than is laid out in the grave

7 breaches provisions of the Conventions. I think there

8 is no question about that.

9 On the other hand, some of these have pretty

10 clear meanings under international law -- people know

11 what they are talking about. Others are not as clear

12 as they could be. I think we pointed some of those out

13 in our brief. I am not real sure what constitutes

14 various offences. There, you can run into a nullum

15 crimen sine lege problem and a notice problem, that

16 I should be able to know when I do an act or when

17 I have an omission, whether or not I am subjecting

18 myself to criminal responsibility. If I cannot do

19 that, the Statute is so vague.

20 I think that it is lunchtime. Can I have a

21 few minutes after lunch and then I will sit down?

22 JUDGE KARIBI-WHYTE: We will have to break

23 in five minutes time.

24 MR MORAN: We can break now if the court

25 would like. I can come back after lunch and finish in

1 about 10 or 15 minutes.

2 JUDGE KARIBI-WHYTE: We will come back at

3 2.30.

4 (1.07pm)

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1 (2.30pm)

2 JUDGE KARIBI-WHYTE: You may continue,

3 Mr Moran.

4 MR MORAN: Thank you, your Honour. During

5 the break I went down and had a cold drink and saw us

6 on the television and figured out that I did an awful

7 job of explaining something. I would like to continue

8 on that. It is this: it was really some questions

9 that Judge Jan asked that I think I need to explain my

10 position a little bit clearer.

11 Rank and authority in a military unit can be

12 two completely different things. It is fairly well

13 known, for instance, that, in the Soviet army,

14 commanders might have a lower rank than some of their

15 staff officers. It was just the way they did things.

16 JUDGE JAN: The same in the civilian world.

17 MR MORAN: In the civilian world, that could

18 be the same thing. Just because I have a higher rank

19 than someone does not mean I have the authority to

20 issue legally binding orders to them. From my army,

21 because it is one I am familiar with, the chief of

22 chaplains is a two-star general. He cannot issue an

23 order to anyone except another chaplain. He has the

24 rank, but he lacks the authority to use that rank.

25 So, what you have to look at when you are

1 determining superior authority, in my submission, is

2 the authority to give a binding order.

3 JUDGE JAN: Control the action of the

4 subordinate.

5 MR MORAN: That is right, to issue an order

6 that binds him, on your own authority, and to punish

7 him if he disobeys that order. Clearly, in the example

8 that you gave, Judge Jan, Private E2 Jones can stop

9 Private E1, because he has had a gun and can point it

10 at him and can say, "do not do that". But that does

11 not give him the legal authority to do that, to command

12 or control the lower ranking private. That comes with

13 a position. For instance, as with Celebici, there has

14 been testimony here that a man named Zaho Mustavic was

15 the commander of the guard, that he was in command of

16 the guard force. I do not know where he is or what he

17 is doing, but he is not here.

18 JUDGE JAN: He is not before us.

19 MR MORAN: He was the man, the supervisor,

20 if you would, the commander of the guard force. He

21 could order them, issue legally binding orders to them

22 and, within the scope of his competence, punish them.

23 JUDGE KARIBI-WHYTE: Where did you find that

24 evidence, or are you merely assuming?

25 MR MORAN: Your Honour, he was the commander

1 of the guard -- there has been testimony to that.

2 There has clearly been testimony to that. As a

3 commander, he would have the authority to issue legally

4 binding orders. That is what commanders have. One

5 author talks about it this way: he says the person

6 committing the offence was under the command of the

7 accused, that is, the accused had the authority to

8 issue orders, not to commit illegal acts, and the

9 authority to see that the offenders were punished.

10 I think that is clearly what "superior" means

11 in article 86 and in Article 7(3) of our Statute. If

12 you lack the authority to issue legally binding orders

13 on your own -- on your own authority -- and the power

14 to punish for violation of those orders, then you are

15 not a superior. Simply because you have more stripes

16 on your sleeve or things on your shoulder does not

17 necessarily give you that authority -- the legal

18 authority. Again, the lowest ranking private,

19 presumably, can prevent the highest ranking general

20 from committing a war crime simply by pointing a gun at

21 him and saying, "if you do it Sir, I will" -- but that

22 is not what we talk about when we say the ability to

23 prevent. It has to be the ability on your own

24 initiative to give that legally binding order, and your

25 ability on your own to punish a violation of that

1 order. I hope -- have I made that clear, your Honour,

2 on what my view is?

3 JUDGE JAN: I think that is the correct

4 position.

5 MR MORAN: And absent the authority to give

6 that legally binding order, or absent the authority to

7 punish a violation of that legally binding order, then

8 you are not a superior for the purposes of article 87

9 and Article 7(3). So you have to look not at the rank,

10 but at the kinds of powers that are given to this

11 person. That is what the high command case did, that

12 is what the hostages case did, that is what Toyoda did,

13 and they found that, because -- they found because

14 Toyoda was not in command at all, not anywhere in the

15 command, he was not guilty and they found the various

16 staff officers in the high command and hostages case

17 were not guilty, because they lacked that authority --

18 to issue, on their own, those legally binding orders

19 and to punish violations of those orders.

20 One last thing, and I will sit down and I am

21 sure the court will be happy for that, but the illegal

22 detention count. The Prosecution has to prove two

23 things on the illegal detention count. They have to

24 prove protected status under the Geneva Convention for

25 Civilians -- Convention IV, so you look to article 4 of

1 the Geneva Convention for Civilians and see if these

2 people fit that definition. If they do not, if they

3 are not in the hands of a party of which they are not

4 nationals, they do not fit the definition. Even if

5 they do fit the definition, then the detention has to

6 be an illegal detention.

7 So, both things have to be shown. Pictet, in

8 his commentaries to the Geneva Conventions, notes that

9 States have broad authority to detain enemy aliens

10 during time of war, and that they have traditionally

11 been given this broad authority. There has been

12 evidence from Witness D about the fact that these

13 people were, at a minimum, suspected of crimes. We

14 pointed out in our joint brief that it is not at all

15 unusual in criminal justice systems to have pre-trial

16 detention.

17 The best example I can think of is in

18 American law -- and it is laid out in our brief --

19 under certain kinds of cases, there is a presumption

20 that the person should be detained pre-trial and,

21 secondly, there is a presumption, and a very strong

22 presumption in this Tribunal, that there should be

23 pre-trial detention. In fact, as I understand the

24 holdings, a person will be detained pre-trial absent

25 exceptional circumstances, so there is a clear

1 presumption of pre-trial detention.

2 Given that, and given the circumstances of

3 the arrests of the people that were detained in the

4 Celebici prison, I do not see how anyone could say that

5 there is at least not some suspicion that they

6 constituted a danger to the State, and under those

7 standards, clearly the Government of Bosnia-Herzegovina

8 had the right to detain them.

9 Your Honours, unless there are some further

10 questions, I think I will sit down and I think

11 Ms Residovic is next to talk.

12 JUDGE KARIBI-WHYTE: If those are the only

13 submissions you want to make, that is okay.

14 MS RESIDOVIC: Thank you, your Honours. My

15 colleagues, Mr Ackerman and Mr Moran, have presented

16 the most relevant points of our joint request, so, your

17 Honours, I am going to limit myself to the part that

18 speaks to the general superior responsibility and, as

19 regards Mr Zejnil Delalic, with individual counts and

20 I will show that the Prosecution has not shown the

21 prima facie case and that this indictment needs to be

22 rejected on all counts.

23 Allow me, your Honours, just to remind you

24 very succinctly of what we have submitted in portion G

25 of our request, that my client, Mr Zejnil Delalic, was

1 accused of superior responsibility pursuant to Article

2 7(3), points 13, 14, 35 -- 34, 44, 45 and 7.1 -- under

3 Article 7.1, for his personal responsibility and that

4 is count 48. In count 3 Mr Zejnil Delalic was

5 identified as the coordinator of the Bosnian and

6 Croatian forces in the Konjic area between April and

7 September 1992, and as commander of the Tactical

8 Group 1 from some time in July until November 1992, and

9 in point 7 of the indictment, his superior

10 responsibility was based on his control over the

11 Celebici camp, and that he was in a position of

12 superior authority with respect to all the guards and

13 all the units who entered the camp.

14 So, these provisions reflect charges on all

15 counts, and the Prosecution had the burden of

16 presenting evidence, which would lead to the conclusion

17 that my client had such responsibility, or, as spelt

18 out in the Statute, that there was a prima facie case

19 for each count under which the accused has been

20 indicted.

21 Mr Osberg has very specifically stated that

22 the Prosecution evidence will show that Zejnil Delalic

23 took part in the work of the War Presidency of Konjic;

24 that he took part in the work of the War Presidency;

25 that he played an active role in the attacks on Bradina

1 and other villages in the Konjic area; that in these

2 activities he was the person of superior authority over

3 the Celebici prison and all staff who worked there;

4 that this was a direct position of superiority; that he

5 knew or had reason to know that his subordinates were

6 committing crimes and that he did not prevent these

7 crimes, nor did he punish their perpetrators.

8 The Prosecution also had the burden of proof

9 to establish the direct or indirect command

10 responsibility, whether it is jure or de facto, and

11 especially emphasise that all personnel who were linked

12 to the prison were connected to Delalic and were

13 related to him -- to his authority in that period of

14 time.

15 The Prosecution further claim that they would

16 establish the chain of command that goes from the

17 guards to the deputy commander and camp commander and

18 then on to Delalic himself.

19 The position of the Prosecution towards my

20 client has been made unclear by the fact that they

21 would not discuss the authority that Zejnil Delalic had

22 on paper, and that, by assuming that there was no

23 specific body which would be a superior body over the

24 Celebici camp, that it was my client's, Zejnil Delalic,

25 who actually acted in this role, so in the first phase

1 of the presentation of her evidence, the Prosecutor

2 herself was not clear about what function my client

3 discharged at that time. They said that it was some

4 time in April, but the presentation of evidence shifts

5 this to the second part of May 1992.

6 Also, the Prosecution is not clear on whether

7 my client discharges this duty and has this

8 responsibility also as a commander of TG1, but the

9 Prosecution has committed to proving all these facts.

10 From the first moment the issue of Zejnil

11 Delalic's authority as a superior person was linked to

12 the general questions of superior responsibility. The

13 Defence has submitted from the beginning that Zejnil

14 Delalic did not have a role of superior authority in

15 the Konjic area in this period of time in which he has

16 been charged.

17 We have started from the general criteria and

18 standards set out in the Tadic case and we believe

19 that, in this case, the facts are such that not only

20 has the Prosecution not established a prima facie case,

21 but, furthermore, the Prosecution has shown that Zejnil

22 Delalic did not have superior authority over the

23 Celebici camp and its staff and, therefore, we say that

24 all charges against him relating to this charge need to

25 be dropped.

1 In this stage of laying out the standards for

2 our request to dismiss the charges, which we have set

3 out in our written brief, we also point to the fact

4 that this Tribunal in other cases also clearly pointed

5 to the Prosecution as having the burden of proof, and

6 that if they are not able to establish a prima facie

7 case through their presentation of their evidence, the

8 indictment against my client needs to be dismissed. We

9 are basing this on all the evidence that was presented

10 and accepted by the Trial Chamber in this case.

11 We say that every element of the case that is

12 set out in the indictment needs to be proved and I need

13 to show what these elements are. I will try not to

14 repeat myself, and I will try not to repeat the

15 submissions that have been provided in the written

16 brief, but I will comment on what the Prosecution has

17 provided us in their reply.

18 My colleague, Mr Moran, has given our

19 arguments about the general superior responsibility,

20 so, in order for the Article 7(3) to be implemented,

21 that is, the 7(3) Article of our Statute, we first need

22 to determine what the status of this person is. In

23 other words, we need to decide what is the prima facie

24 -- that is what are the grounds for suspicion that

25 this person in this particular case, Mr Zejnil Delalic,

1 had a role of superior authority.

2 Why is this necessary? This is necessary

3 because, absent prima facie, the status of the superior

4 authority cannot be determined and, therefore, needs to

5 be dismissed.

6 The Defence of Zejnil Delalic has submitted

7 that Zejnil Delalic was never a commander or

8 coordinator of TG1 -- was never in a position, that is,

9 never had a status of a superior authority, both with

10 regards to the Celebici prison, or the staff of the

11 Celebici prison, or persons who entered the Celebici

12 prison, and committed the acts set out in the

13 indictment.

14 Even though there is a discrepancy in time

15 between the opening statement of the Prosecution and

16 the evidence that was later submitted, I think that the

17 facts will speak for themselves.

18 The Prosecution has first submitted that, in

19 this first period, that is, as coordinator, our client,

20 Mr Delalic, had an implicitly military position and

21 that his responsibility flows out of that position of

22 authority which he held. This makes the situation for

23 the Defence, and we say that the Prosecution cannot

24 determine the prima facie case against our client on

25 this basis, so all the evidence that has -- that was

1 presented by the Prosecution has corroborated our

2 position. At no time was a chain of command

3 established, that is, between the guards and the

4 soldiers who entered the prison and committed these

5 crimes, and the absence of these proofs should be

6 sufficient grounds for dismissal of charges against

7 him.

8 Because we say there is no prima facie case

9 against my client, maybe that should be the end of our

10 argument of this Article 7(3). He cannot be answerable

11 for the acts of third persons of which he did not know,

12 and we can also -- we also cannot talk about his

13 responsibility for something he did not know anything

14 about.

15 In this connection, in our written

16 submission, we followed a certain order. In its

17 response, the Prosecution has also followed that order,

18 saying from the beginning of May Zejnil Delalic had the

19 status of commander. Your Honours, we have heard a

20 large number of witnesses. Very few witnesses spoke

21 about Zejnil Delalic. That very fact places Zejnil

22 Delalic in a different position from the others in this

23 case. Unfortunately, the proposal of the Defence to

24 separate the trial in order to establish whether Zejnil

25 Delalic had the status which would correspond to a

1 status of an accused person was not accepted, and we

2 were forced, in this trial, for two years now, to

3 expect the evidence to be presented which would

4 possibly speak of Zejnil Delalic as someone with

5 superior authority over the prison and the persons

6 entering the prison.

7 What Zejnil Delalic did and what was he in

8 this period in Konjic -- I think the answers to these

9 questions can best show whether he was a superior and

10 whether the Prosecutor has, through the evidence

11 presented, established a prima facie case to show his

12 superior position. In our written brief, we covered

13 the period from 18 May, when Zejnil Delalic was first

14 appointed by the coordinator, between the War

15 Presidency and the Defence forces of Konjic.

16 The Prosecutor, in his response, claimed that

17 Zejnil Delalic in this period had the authority of a

18 superior and presents facts linked to the special

19 appointment of 2 May, according to which Zejnil Delalic

20 was appointed to take care of certain logistical

21 affairs. The Prosecution also refers to TV Zagreb

22 programmes in which the journalist introduces Zejnil

23 Delalic as a commander. I can say straight away that

24 that evidence itself speaks to the opposite. The

25 evidence presented before this court, referring to the

1 special authorisation dated 2 May 1992, was issued by a

2 civilian body -- the War Presidency of the municipality

3 of Konjic.

4 This evidence was issued in the form of a

5 special authorisation on the basis of a decision of the

6 War Presidency on certain logistical affairs;

7 therefore, a clearly civilian authority appoints a

8 clearly civilian person to take care of clearly

9 civilian tasks and duties, which the municipality,

10 within the framework of its own obligations, in a

11 situation of a threat of war, needs to carry out

12 certain preparations and to provide logistic support

13 for Defence.

14 This evidence offered by the Prosecutor

15 clearly shows that Zejnil Delalic had no military

16 position or function.

17 Another piece of evidence that the Prosecutor

18 is offering in response to our request is the title

19 given by the journalist and the way the journalist

20 addresses Zejnil Delalic in May in Zagreb. I wish to

21 refer you, your Honours, to other evidence which

22 reveals what Zejnil Delalic said in this connection;

23 "Surely you do not think that the journalist in Zagreb

24 appointed me to a military post".

25 A few days later Delalic was appointed

1 coordinator of the War Presidency and we cannot see how

2 a commander would, 10 days before -- who was called a

3 commander 10 days earlier, before being appointed a

4 civilian authority. Therefore, there is no doubt, your

5 Honours, that the evidence, including the special

6 authorisation for logistical affairs, as well as the

7 way Zejnil Delalic was addressed by the journalist on

8 TV Zagreb and the other evidence offered by the

9 Prosecutor, such as the testimony of Generals Divjak

10 and Pasalic and other persons who worked in Konjic at

11 that time showed Delalic had absolutely no military

12 function.

13 General Pasalic said, "I had a coordinator

14 because I appointed him to coordinate between the army

15 and TO forces in Konjic. He had certain military

16 authorisations, but he was my subordinate, therefore a

17 coordinator is never a superior". If a coordinator is

18 never a superior authority, then Zejnil Delalic could

19 not have been one, either. That same witness said that

20 if a civilian authority appointed the coordinator, then

21 it must be a predominantly civilian function and he

22 must be liable to the civilian body that appointed

23 him.

24 Therefore, from the documents on the

25 appointment, it is clear that Zejnil Delalic in this

1 period did not have, nor was he appointed to any kind

2 of military function, and the task that he had as a

3 coordinator, that is, to coordinate between the War

4 Presidency and the Defence forces, to this post he was

5 appointed by a civilian body, which could have

6 transferred only the authority that it has itself,

7 which means not the authority to issue commands or to

8 have control.

9 Therefore, in this period, Zejnil Delalic did

10 not have any authority of a superior person of any kind

11 and especially not as a military superior authority.

12 According to the allegations of the Defence

13 as described in our written brief, the period in which

14 Zejnil Delalic carried out coordination was the period

15 from 18 May until the earliest, 27 July, which means

16 that, after 27 July, that function is no longer

17 performed, because a dispute occurred with the HVO and

18 when Zejnil Delalic went far away from Konjic and,

19 therefore, was a whole month participating in combat

20 operations.

21 The only evidence we can rely on for this

22 period is certainly the testimony of the generals that

23 we heard here, and who said clearly that a coordinator

24 is not a superior function. This also confirms the

25 position of the main staff of Bosnia-Herzegovina, which

1 said that this function had no relation to the command

2 functions in Bosnia-Herzegovina and that conforms with

3 the statement of Zejnil Delalic, who clearly described

4 his tasks as a coordinator.

5 This evidence which we are presenting to the

6 court, and the witnesses that we heard, and who were

7 examined and cross-examined -- all those witnesses

8 confirmed this thesis of the Defence. Therefore, the

9 Prosecutor has not confirmed through any evidence at

10 all that, in this period, Zejnil Delalic had a military

11 or a civilian function, which would have any superior

12 authority with which he could have issued orders,

13 supervised the execution of those orders, and punished

14 those who failed to carry them out.

15 The evidence presented before this court

16 clearly shows that the additional order, for instance,

17 for the battles on Bradina, were signed by the HVO

18 commander of the operations at the time in Bradina. We

19 also saw that, at the time, in Konjic, there was a

20 joint command between the TO and the HVO, as of 12 May,

21 and this is a fact that can be verified through the

22 videotape found and seized in Zdravko Mucic's

23 apartment.

24 It is clear in the period May and June,

25 according to the evidence presented in this court,

1 Zejnil Delalic engaged in logistics and various other

2 activities to support the War Presidency in its

3 activities. The actual appointment as a coordinator --

4 this document clearly shows, as I have already said,

5 that he was appointed by a civilian body; that is, by

6 the War Presidency.

7 Furthermore, that appointment shows that the

8 Presidency appointed him within the framework of the

9 preparations or defensive preparations in the territory

10 of Konjic municipality; therefore, in the framework of

11 those tasks which, according to the law, belonged to

12 the municipality -- a municipality which has absolutely

13 no authority to issue, order, or to establish any

14 military structures in that area.

15 Your Honours, reviewing these documents,

16 I wish to interrupt my presentation and to draw your

17 attention to the fact that the translation of this

18 appointment of Mr Zejnil Delalic is not correct, so

19 I would like the translation service to correct it.

20 I hope it is a translation error, because what has

21 described as the task of the coordinator has been

22 incorrectly translated. In point 2 of this decision it

23 is stated that the coordinator of defensive forces will

24 "directly coordinate work between the Defence forces

25 of the municipality of Konjic and the War Presidency".

1 Unfortunately, in the translation included in the

2 record the word "between" has been omitted and that

3 word "between" existed in the previous translation

4 given to us by the Prosecutor, and prepared by this

5 Tribunal. This word is not without significance,

6 because the word "coordinator" means a relationship

7 between two bodies and the word "in between" in my

8 language, and I believe in yours, too, indicates this

9 relationship "between", rather than any relationship of

10 superiority.

11 Therefore, it is visible from the tasks given

12 to him by the civilian body to coordinate activities,

13 to mediate under very difficult and specific conditions

14 of life in Konjic, it is not possible to deduce from

15 this definition any other conclusion but that Zejnil

16 Delalic was a person carrying out orders by the

17 superior body and not a superior himself.

18 This is another argument of the Defence, that

19 the Prosecutor has established the opposite, that is,

20 that Zejnil Delalic was not a person of in superior

21 authority.

22 In the general allegations regarding the

23 responsibility of the commander and of superior

24 command, the question is raised: when can a civilian

25 have a status of superior command? We have asserted

1 that that can happen only when that civilian person has

2 the same authority as a military commander.

3 I would not repeat that part of our argument,

4 but it is clear from what I have said about a

5 coordinator that this was not a civilian function, nor

6 a superior civilian function and still less could he

7 have any authority that could be compared to the

8 authority of a military commander to issue orders, to

9 control, or to punish perpetrators.

10 In any event, the Prosecutor has not offered

11 any evidence to show that Zejnil Delalic, as a

12 coordinator, had any person as a subordinate -- even a

13 secretary.

14 The Prosecutor, in its response to our

15 motion, drew attention to some actual powers of Zejnil

16 Delalic. As the evidence has shown, Zejnil Delalic was

17 not a member of any political party, nor was he a

18 member of any political body, nor did he have any kind

19 of State or political function, and, in our written

20 submissions, we have highlighted the statement of

21 witness Sabine Manke, the witness Petko Grubac and

22 drawn attention to all the things that have been clear

23 from the beginning as stated by Zejnil Delalic.

24 This evidence of the Prosecution has not

25 corroborated the allegation that Zejnil Delalic had any

1 State, political or other similar function which could

2 give him the position of superior command in the sense

3 discussed in the general introduction.

4 The question that is raised is until when

5 Zejnil Delalic was a coordinator. According to Zejnil

6 Delalic's Defence -- and this has been corroborated

7 through much of the evidence -- he performed the

8 function of commander of Tactical Group after he was

9 appointed on 27 July -- when, from the Vranjske

10 Stijene, which is 40 kilometres east of Konjic, he

11 moved to the area of the city of Sarajevo -- that is

12 the area of Igman and Pazaric, which is more than 60

13 kilometres away from Konjic. Therefore he ceased to

14 act as coordinator even before -- that is, on 27 June,

15 when he joined the combat operations at Vranjske

16 Stijene.

17 That this is true has been confirmed by the

18 evidence presented in court -- the Prosecution

19 evidence. Their witnesses, Pasalic and Haraz, met with

20 Zejnil Delalic as a coordinator in mid July at Vranjske

21 Stijene. Dokto Pel told us when he was released from

22 prison, Zejnil Delalic had just arrived from

23 Glavaticevo, which is a locality right next to

24 Vranjske Stijene. Also, all these facts are confirmed

25 by Exhibit 126/1.

1 The Prosecutor, in her response, claims that

2 Zejnil Delalic had a significant role in the military

3 operations conducted around Konjic. Contrary to that,

4 this Trial Chamber has admitted as relevant and

5 authentic evidence Exhibit 124, that is, the order to

6 the TO commander of Konjic, issued by the Supreme

7 Command and signed by Sefer Halilovic, whereby this

8 municipal staff of Territorial Defence is instructed to

9 start military operations in the direction of Boracko

10 Jezero, Nevesinje and Kalinovok.

11 Furthermore, another exhibit has been

12 admitted. That is the coordination of war operations

13 in the municipality of Konjic, D125/1, from which it is

14 clear that the commander of this operation was the

15 commander of the TO staff, Esad Ramic. These exhibits

16 confirm best that there is no question of a leading

17 military role of Zejnil Delalic in this period. These

18 are authentic exhibits that were presented and admitted

19 by this Trial Chamber which speak to the contrary.

20 A part of these activities which Zejnil

21 Delalic, as the coordinator, and assistant to the War

22 Presidency in establishing relationships with other

23 entities, faced with formidable war tasks and what the

24 situation was like in Konjic -- you have heard from

25 various witnesses like Dzajic, Zebic and others, you

1 have seen some of the videos, too.

2 Therefore, throughout this period, the tasks

3 of the coordinator were linked to securing a minimum of

4 living conditions for the population, and for 25,000

5 refugees, who, within a short period of one month,

6 reached Konjic, which was daily exposed to at least 60

7 shells. At the same time, he coordinates between the

8 Defence forces of the Konjic municipality and the War

9 Presidency, which was not able alone to establish that

10 link with these forces and I am referring to the MUP,

11 the HVO and TO, each of which had its own chain of

12 command, some relating to Grude, another to Sarajevo, a

13 third towards the Ministry of Interior in Sarajevo.

14 Nowhere in the chain of command can Zejnil Delalic be

15 found.

16 This was a time, as General Pasalic said,

17 when combat operations were being carried out, living

18 problems being dealt with and at the same time army

19 being established under conditions of war.

20 In concluding this segment relating to the

21 functions of the coordinator, as a predominantly

22 military post, or rather a civilian person with

23 military authority, it can be said that, viewing the

24 evidence in the most favourable light for the

25 Prosecutor, the only thing that can be said is that

1 Zejnil Delalic, carrying out his functions appointed --

2 given to him by the War Presidency, were the functions

3 of a coordinator and all the other evidence shows that

4 he did not have the position of superior authority.

5 The Prosecutor, in her response to our

6 written request, is trying to refer to certain

7 exceptional circumstances under which a person can

8 become something like a superior authority, but not in

9 a legal sense but, rather, in a de facto sense.

10 On the other hand, we have the evidence

11 presented in court, and the testimony of a number of

12 witnesses that speak to the contrary. There is the

13 testimony of Generals Divjak and Pasalic, who clearly

14 stated in Bosnia-Herzegovina, immediately after the

15 outbreak of war, a decree was passed on the

16 organisation of the army, that 15 April is considered

17 the day of the founding of the army of

18 Bosnia-Herzegovina, that in Konjic, already, on 17

19 April, a new staff was constituted in line with the new

20 regulations of the Republic of Bosnia-Herzegovina, that

21 a member of the Republic staff visited Konjic to assist

22 that army in organising itself, and to adjust its

23 activities with those of the HVO.

24 Furthermore, General Divjak not only

25 confirmed that provisional instructions were issued on

1 the organisation of TO staffs of the Republic of

2 Bosnia-Herzegovina, but General Divjak was the author

3 of those instructions and, as Professor Gow would have

4 said, if they testified differently, because they are

5 more familiar with the situation, one should rely on

6 their testimony.

7 This witness, your Honours, clearly showed

8 that the municipal staffs were subordinated to district

9 staffs in accordance with these instructions, such as

10 was the case in the area of Mostar and the municipal

11 staffs were directly responsible to the staff of

12 Bosnia-Herzegovina.

13 Therefore, in no chain of command -- military

14 chain of command can we find the coordinator, that is,

15 Zejnil Delalic. As I have already asserted, his role

16 was absolutely a civilian role.

17 The next argument that is offered by the

18 Prosecutor is trying to prove that Zejnil Delalic did

19 have the authority to issue orders and refers to an

20 order establishing a railway connection between

21 Jablanica and Pazaric. Among the same evidence there

22 is another argument and another exhibit that has much

23 greater weight. That is Exhibit 116, which clearly

24 shows that, on the day the railway line was opened,

25 Zejnil Delalic said that he was carrying out orders.

1 What Zejnil Delalic said on Konjic television in June

2 was interpreted in an identical fashion by General

3 Divjak, who said that a coordinator cannot sign orders,

4 that he may have signed it because of his lack of

5 experience regarding orders, or as somebody executing

6 an order, or as a witness of the issuing of such an

7 order.

8 The Prosecutor is trying once again to

9 establish the superior authority of Zejnil Delalic and

10 his link to the prison through the fact that Zejnil

11 Delalic signed three discharge papers for prisoners.

12 In our written motion, we have devoted sufficient

13 attention to this point. According to the testimony of

14 Witness C and other witnesses that we have heard, who

15 were actually released, it is clear that several

16 hundred people were released from the Celebici prison.

17 Only three discharge documents, which at the moment we

18 saw them, your Honour Judge Jan, you saw that they were

19 not identical to the other ones.

20 There was a signature there, which witness

21 Miro Golbuvic read out as being the signature of Zejnil

22 Delalic; but that signature was on behalf of someone

23 else. Therefore, it was on behalf of the head of the

24 investigative commission and in all situations, and

25 especially as indicated by the witness Petko Grubac,

1 this means that the person who signed those three

2 discharge documents had the authority to do that, given

3 to him by a third person.

4 What is, however, much more important, Zejnil

5 Delalic has been accused as the coordinator and

6 commander of the Tactical Group. Not a single of those

7 discharge documents was signed by the coordinator, or

8 by the commander of the Tactical Group.

9 Any third person may, upon permission of

10 another person, sign such a document, so that Zejnil

11 Delalic could not have done this in his function as a

12 superior authority.

13 As for any kind of link between Zejnil

14 Delalic and the Celebici barracks or prison, from which

15 the Prosecutor would like indirectly to adduce that

16 Zejnil Delalic was a person in superior command, is

17 illustrated by the fact that he entered the barracks

18 perhaps once, twice, three times, that he spoke to

19 Witness D, and that he signed these three discharge

20 papers. Let me just remind you of the testimony of

21 witness Belin, who said that the barracks covers 85,000

22 square metres consisting of many buildings, and you

23 saw dozens of truck on the video.

24 You also saw, on the basis of the testimony

25 of witness Belin, that the prison covered less than

1 5 per cent of the whole compound area. Anyone who

2 enters the Celebici prison need not have any superior

3 authority. The fact that he entered the compound does

4 not prove anything.

5 To view this in the most favourable light for

6 the Prosecutor, the testimony of Witness D can be

7 reduced to a couple of elements only. Probably, he met

8 Zejnil twice -- when Zejnil was explaining what he

9 should do on one occasion and a second time what the

10 commission should do. A command and superior

11 responsibility does not imply explaining things to

12 anyone. It implies issuing orders, control and

13 punishment for lack of observation of orders.

14 Therefore, this crown witness of the

15 Prosecution, apart from saying that he received a

16 uniform, which is normal for a logistics man to do,

17 except for confirming that the Croats were appointed by

18 Croats, except for saying that he came upon

19 instructions of Mostar HVO to Konjic, that he went to

20 the HVO to recount certain events that he saw in

21 Celebici, the fact that he said that he never saw the

22 original of the document that was offered here as a

23 report on the situation in Celebici, that he said that

24 he never informed Zejnil Delalic of the situation in

25 Celebici -- he said nothing more than that. This

1 testimony has absolutely no effect on the judgment of

2 this court, whether the Prosecution has proven the

3 position of Zejnil Delalic as a person with superior

4 authority.

5 Regarding the arguments we have presented

6 regarding Tactical Group 1, my comments will be very

7 brief. I wanted to show that the coordinator had

8 absolutely no military function and particularly not

9 any key military function, as the Prosecutor is

10 alleging; that he had no superior authority, and still

11 less a military superior authority, and that Zejnil

12 Delalic in this period had no relationship with the

13 prison or prisoners and the Prosecution has not offered

14 any evidence which would place him within the chain of

15 command going from the guards up to him.

16 Just one more sentence: the civilian body

17 that appointed him, according to the constitution and

18 the law, has no authority regarding the formation of

19 prisons, or the appointment of commanders to prisons

20 and, therefore, that body could never have given him

21 any such authorisation.

22 As for the position of Zejnil Delalic as a

23 person in superior command in relation to the prison

24 and the personnel in it, while he was commander of the

25 Tactical Group after 27 July, I think that the

1 testimony of General Divjak and General Pasalic was so

2 convincing; these generals were shown a large number of

3 documents, and orders issued by Zejnil Delalic as

4 commander of the Tactical Group, the commander of a

5 Tactical Group which has a temporary and provisional

6 war task, and the task of that group was to try and

7 lift the blockade of the city of Sarajevo as the worst

8 and most serious war problem for all the defensive

9 forces in the country and that it did not include any

10 responsibility that could be compared with the

11 responsibility of district staffs, or the

12 responsibilities of cause. Therefore, he had no

13 authority over the territory.

14 JUDGE JAN: We were talking about municipal

15 staff and the district staff. How do the two differ?

16 Nobody has explained that, but I was wondering, where

17 does the district come and where do the municipal staff

18 come?

19 MS RESIDOVIC: Your Honours, a city with the

20 surrounding villages constitutes a municipality.

21 Several municipalities constitute a region, several

22 regions constitute a district. This is how the

23 Territorial Defence organised before the war and this

24 structure, as explained by General Divjak and as

25 presented in the provisional instructions offered

1 as --

2 MS McMURREY: I am getting Serbo-Croatian in

3 my English -- I am not getting an interpretation.

4 I hope we can have some help here so we can

5 understand.

6 JUDGE KARIBI-WHYTE: Someone in the

7 interpretation booth might give us a guide. Are you

8 tuning to number 4?

9 MS McMURREY: I am on number 4, but I am

10 hearing Serbo-Croatian.

11 THE INTERPRETER: Can you hear the English?

12 Yes?

13 MS McMURREY: I believe Mr Galijatovic does

14 not understand enough English to assist him right now,

15 your Honour.

16 JUDGE KARIBI-WHYTE: Okay.

17 JUDGE JAN: Thank you.

18 MS RESIDOVIC: I believe that I have

19 clarified this point, so a city is subordinated to a

20 district and General Divjak testified that three cities

21 were not under the Republican staff -- that is Mostar,

22 Gorazde and Banja Luka. So Capljina, Konjic and others

23 were linked directly to the Republican staff in

24 Sarajevo until the Army Corps were formed. I hope that

25 this clarifies the issue.

1 In this situation, the Prosecution would want

2 us to forget the testimonies of the two generals and

3 that the appointment of all forces, that is, that this

4 would also include the authority over the Celebici

5 prison and the staff that worked there. However,

6 I believe that you still remember vividly the testimony

7 of General Divjak, who said that all forces does not

8 mean all forces, because that is impossible. That does

9 not exist in law.

10 Such function does not exist in law. There

11 must be certain combat forces and certain means,

12 certain materiel that are also assigned to a

13 commander. We presented several pieces of evidence

14 from this wider regional area, where these tactical

15 groups were active, and you could see the tape of

16 Prozor -- the TG commander, Sabic, who, when this area

17 came under control of the HVO, that he reported it to

18 Zenica, which means a completely different region,

19 different area, from where Zejnil was. Zejnil was

20 assigned to the forces that were going towards Sarajevo

21 and all other forces were under the command of the

22 Zenica staff.

23 Professor Gow testified to the same thing.

24 The Hadzic area was in the area of activity of Zejnil

25 and General Divjak explained that certain forces from

1 that area were subordinated to him at that time.

2 However, as Professor Gow stated, all these forces,

3 before the war and at the beginning of the war, were

4 subordinated to the Sarajevo staff and then, as it

5 developed, to the BiH Army -- to the Corps I. It could

6 have been strange to hear General Divjak say that all

7 forces is not all forces, but General Divjak did, very

8 lucidly, explain this point and it was further

9 corroborated by the exhibits that were submitted.

10 So, the Tactical Group has a provisional,

11 temporary and limited task, and within that scope, it

12 can receive specific tasks from its command -- tasks

13 which it is supposed to carry out, and it has to have

14 specific forces which are subordinated to it, and in

15 the testimonies of the generals, such a view has been

16 admitted, and it shows that Zejnil Delalic did not have

17 superior authority over the Celebici camp during that

18 period.

19 I want to remind the Trial Chamber that

20 Zejnil Delalic replaced Colonel Polutak in this duty.

21 It is not possible that certain of the functions just

22 follow the person of Zejnil Delalic and not the

23 functions which he discharged. So if he was a

24 coordinator, somebody else was a coordinator, so if

25 there was a commander after him, the responsibility

1 would fall on him afterwards.

2 I just want to point out that the Prosecution

3 has offered no evidence that Zejnil Delalic was at any

4 point the person of superior authority over the

5 Celebici prison.

6 We have shown that the generals have

7 explained the two orders that Zejnil Delalic wrote on

8 24 and 28 August, which could link Zejnil Delalic with

9 the Celebici camp. However, they clearly stated that

10 these were orders in which he was a transmission of the

11 main staff, because, in the preamble of these orders,

12 it is clearly stated that he is carrying out the orders

13 of the general staff, and the points relating to the

14 Celebici camp speak about a need to conclude the

15 investigation at the Celebici camp and that is a

16 commission which is not part of the Celebici camp, and

17 Witness D testified that this investigation commission

18 was outside the institution of the prison and it was a

19 body formed jointly by the HVO and the TO, so even this

20 transmission was not directed towards the camp and the

21 activities in the camp but to one specific task.

22 This task was to speed up the work on the

23 investigation of the detained persons so that the law

24 could apply to all of them.

25 In the Prosecution's response, I went back to

1 the arguments submitted in our written brief and

2 through all it, it can be demonstrated that there is no

3 prima facie case of Zejnil Delalic's superior

4 authority. On the contrary, it all points to the fact

5 that he did not have the status of a superior

6 authority.

7 I am also going to point out another

8 objection raised by the Prosecution in their response

9 to our brief. The Prosecution is surprised that in a

10 written brief we have not at all commented on the

11 Vienna documents. Allow me, your Honours -- so far

12 I have talked about the authenticated evidence

13 presented to us, which clearly showed that Zejnil

14 Delalic never had a position of authority, especially

15 not a superior authority, over the Celebici prison. At

16 the moment when he became the commander of the Tactical

17 Group, he was obviously a military commander, and he

18 had a position of superiority over his subordinates.

19 However, the Prosecution offered no evidence

20 that the soldiers subordinated to Mr Delalic ever

21 entered the camp and committed crimes. Had they done

22 so, Mr Delalic would be responsible pursuant to

23 Article 7(3), but since the Prosecution offered no

24 evidence in that respect, I felt that I had no need to

25 respond to that.

1 To the question by the Prosecution why we

2 treated the Vienna documents in this particular way,

3 that is, ignoring them, I am going to answer by the

4 following. The formal reason is that the night before

5 last we received the answer to our submission -- to our

6 appeal. While the matter is pending, we could not act

7 on this matter, but the real reason is that, after so

8 many -- so much evidence has been introduced, and some

9 of which were confirmed by the custodian of the archive

10 of Bosnia-Herzegovina, I say that this evidence, by

11 comparison -- I will not say they have no value

12 whatsoever, because this is not the time to bring this

13 point, but they cannot change the fact that the other

14 evidence has actually proven a different matter.

15 Why do I say this? Most of the documents

16 found in Vienna were not authenticated. We do not know

17 who provided them. We do not know how they are related

18 to the indictment. We do not know the context. We do

19 not know who the authors are, and in what context of

20 time they wrote this. If this was -- we cannot -- if

21 we do not know the author, we cannot bring a witness

22 who is going to refute anything, and our position in

23 that respect would be very difficult. We do not know

24 what the context was in which the author wrote this

25 document. Was this a joke? Was this because he was in

1 a particular mental state? Was this because he was

2 inebriated? Was this because in one of these documents

3 it says, "We were forced to lie", so maybe the author

4 had to lie for some reason, or maybe it was an

5 anti-propaganda to counter the terrible propaganda that

6 was waged against Zejnil Delalic at the time.

7 So, these are not authenticated documents and

8 cannot be made to be a prima facie case about any

9 function or position of Zejnil Delalic and, even more

10 so, given that other evidence points to the opposite.

11 But, since this evidence was accepted by the Trial

12 Chamber, and given the standards of authenticity, I am

13 just going to give you several examples to demonstrate

14 why it is justified that we ignore these documents and

15 we say that they cannot determine the prima facie case

16 with respect to the status of Zejnil Delalic.

17 Most of these documents contradict

18 themselves. In Exhibit 124, it says that, "because of

19 the tensions over there, we were forced to lie". So,

20 that points to the way in which these documents were

21 drafted.

22 In Exhibit 118, which allegedly was

23 recognised by Zejnil Delalic, which appoints him to the

24 post of commander of Tactical Group 1 -- and this is

25 part of the first group of exhibits -- it is not an

1 issue whether Zejnil Delalic was appointed the

2 commander of the TG1 and that he replaced Mustafa

3 Polutak. It is also clear when this happened and also

4 Zejnil Delalic recognised the document which bears the

5 date of 23 July on its fax headline, but recall witness

6 Haraz, how these things were communicated.

7 Zejnil Delalic said, "I found this

8 appointment in August when I arrived at Igman", so the

9 document is not controversial in itself, but it does

10 not corroborate any charge against Zejnil Delalic.

11 Then Exhibits 137 and 141, which were introduced

12 through witness General Pasalic, also further

13 corroborated this evidence which I have just quoted.

14 The 137 from 7 December is a letter of the Corps IV --

15 Pasalic to Halilovic -- and it talks about the arrest.

16 It does not talk about Celebici, about Serbian

17 prisoners or any crimes committed against Serbian

18 prisoners, so in December -- as late as December,

19 General Pasalic has no knowledge about any crimes

20 committed there. Had he had any, he would have

21 reported it.

22 Then, Exhibit 141, about the desertion from

23 the army, and others also are pertinent in this

24 respect, because they do not speak about the Celebici

25 prison or the Serbian detainees there.

1 Both documents must be viewed within the

2 context of the testimony of General Pasalic, because,

3 for instance, there are some functions mentioned there

4 about Edib Saric and, when asked, this witness said,

5 and this is very important, that he did not check the

6 functions, nor the persons mentioned there, and that he

7 relied on the report of his commission.

8 You have evidence on the function of Edib

9 Saric as part of the evidence admitted. Relying

10 extensively on the Vienna documents, the Prosecutor

11 clearly shows that she does not have real evidence to

12 establish a prima facie case against Zejnil Delalic,

13 and he then -- she then provides interpretations, such

14 as, for instance, "He played an important role in the

15 Donje Selo operation, and one can see from the video he

16 is ordering an attack on Donje Selo". Please view that

17 tape again. You will hear many voices. Zejnil is

18 nowhere. You will not hear his voice and there is no

19 expert for voices -- perhaps the Prosecutor had an

20 expert -- to judge the voices that can be heard on this

21 tape.

22 Subsequent exhibits have to do with the image

23 on image programme -- the salute on the occasion of

24 Gajreta, and Esad Dramic is mentioned on a number of

25 occasions. Your Honours, let me recall, there are two

1 witnesses who can say with authority who was the

2 commander -- Omer Boric, TO commander in May, and Esad

3 Dramic, TO commander as of 1 June. The first witness

4 was on the Prosecutor's list, and the Prosecutor did

5 not call him -- in answer to my question whether the

6 witness did not wish to come, the Prosecutor said, "No,

7 we are abandoning our plan to hear this witness".

8 Another witness who could have spoken about

9 all these things was in front of the door under a

10 subpoena. The Prosecutor did not bring him in. All of

11 us here present have a lot of experience -- many years

12 of experience behind us, but an assessment of evidence

13 is an ability that we all have. When a Prosecutor does

14 not bring in his own witness, it is because the witness

15 cannot confirm what the Prosecutor wants. Actually,

16 that is the obligation of the Prosecution under Article

17 68 -- under Rule 68, to disclose exculpatory evidence.

18 The Prosecutor did not do this and is relying on

19 unauthenticated pieces of paper, which would refer to

20 that witness.

21 It is true the Prosecutor did carry out part

22 of its obligation under Rule 68, informing us that Esad

23 Dramic had said that Zejnil Delalic was not his

24 superior.

25 If we take all this into consideration, your

1 Honours, rounding up my argument in response to the

2 Prosecutor's response, I can say that all the evidence

3 presented by the Prosecutor in the past year has

4 confirmed one thing: Zejnil Delalic, as a coordinator,

5 nor as a commander of Tactical Group 1, was not a

6 superior authority over the prison, or its staff. He

7 was not responsible for the work of the prison, for the

8 work of its guards, or for the activities of persons

9 entering the prison.

10 Zejnil Delalic does not have the status of a

11 superior authority, either as a civilian in his

12 capacity as coordinator, nor as the commander of a

13 Tactical Group, as he was on combat positions far from

14 the town of Konjic.

15 For these reasons, all the counts of the

16 indictment relating to Zejnil Delalic should already,

17 at this stage, be dismissed, because no prima facie

18 case has been established, which in our language means

19 that the Prosecutor has not established reasonable

20 grounds, on the basis of which an objective observer,

21 seeing all this evidence, could conclude that Zejnil

22 Delalic was responsible for any of the charges that are

23 made against him.

24 Your Honours, let me very briefly comment on

25 some other elements of Article 7(3). Zejnil Delalic,

1 as a person; did he know, or have reason to know, that

2 something was happening in Celebici, or did he prevent

3 or punish, or investigate and punish the perpetrators?

4 This portion will take a short period. I do

5 not know whether we should take a break now, or should

6 we break at 4.30? I do not know. Advise me, please.

7 JUDGE KARIBI-WHYTE: I think if you still

8 want to continue, we can go on. We might break at 4.30

9 for the day, because we want to join the plenary, so we

10 will continue tomorrow morning. You can continue.

11 MS RESIDOVIC: Thank you, your Honours.

12 Only if it is determined that somebody has a

13 position of superiority, that is, that the perpetrators

14 are subordinates to the superior person -- only then

15 the elements of responsibility have been established in

16 pursuant to Article 7(3). As I said, all evidence

17 points to the fact that Zejnil Delalic did not have the

18 position of authority, but, since these are legal

19 points for which prima facie needs to be established

20 individually, if there is no evidence that he knew

21 about this, the charges should be dismissed. If there

22 is no reason why he should have known that it also

23 should be dismissed, and if the person had no real

24 possibility to punish the perpetrators, that is also

25 prima facie and the charges need to be dismissed.

1 These are the legal grounds and I only want

2 to make several comments on each of these particular

3 issues.

4 My learned colleague, Mr Moran, talked about

5 some theoretical aspects of this superior authority.

6 However, in order for knowledge to exist, it has to be

7 real knowledge. It has to be a fact -- the fact that

8 he was present there, that somebody told him of it,

9 that he received information that clearly states that

10 his subordinate has committed a certain crime.

11 However, the Prosecution has offered no evidence of

12 this kind, that he knew that they were committed or

13 that they were about to be committed.

14 In our written brief, we have tried to give a

15 detailed submission of this position of ours, and we

16 have stated that there has been no evidence shown that

17 Zejnil Delalic not only was present at the time when

18 these crimes were committed, but also that he was not

19 in the area when these crimes were committed.

20 There was an incident about the accidental

21 firing of a gun. Four witnesses have testified to it.

22 Two of these witnesses know Zejnil Delalic and his

23 family personally. Two of them said that he was there

24 alone, and one said that he recognised Amir Delalic and

25 the other two said that the "boss" or the "chief" would

1 come -- do not know Zejnil Delalic in person and what

2 they stated before in this Trial Chamber is hearsay and

3 is not indicia, let alone evidence. Because,

4 additionally, it has been established that Zejnil

5 Delalic was not there, because one witness who knew

6 him, Milvan Kuljanin, confirmed that it was not Zejnil

7 but Amir Delalic who was there.

8 If we add to that that two additional

9 witnesses did not know Zejnil Delalic and that

10 Dr Grubac pointed to an uncanny similarity among the

11 Delalic brothers and some cousins, and even put some

12 people who knew them from sight could not distinguish

13 between them, that adds weight to our contention that

14 he was not there.

15 Witness D testified about many things --

16 JUDGE KARIBI-WHYTE: Actually, you appear to

17 be going to the evidence in detail. I do not think

18 that is a matter for legal argument.

19 MS RESIDOVIC: No. Thank you, your

20 Honours. We gave detailed submissions in our legal

21 brief on that, but I am just pointing out that there

22 are numerous points showing that he did not know -- he

23 could not know about any crimes.

24 Professor Bassiouni points to a number of

25 elements that need to be established in order to prove

1 that a commander could have known what was happening.

2 All evidence presented before this Trial Chamber and

3 which are in our written brief, pages 35 through 38,

4 clearly point out that Mr Delalic could not have known

5 that certain crimes as described in the indictment were

6 being committed in the Celebici prison.

7 We pointed out all the problems relating to

8 the area where Zejnil was over those two months and the

9 fact that no clear evidence has been presented that he

10 had the relevant knowledge.

11 As far as the arguments relating to measures

12 to prevent such acts, I completely second everything

13 that my colleague, Mr Moran has pointed out. I would

14 just like to add that, witness Pasalic and other

15 witnesses clearly stated that in Konjic at that time

16 there were no law enforcement forces, and there was no

17 judicial system.

18 That is the position, the person of superior

19 authority, even if they knew about certain acts, they

20 had no way to implement any measures against it. It

21 was only later in the year that these things were

22 established in Konjic, and a number of cases were

23 conducted after that, but the person who was supposed

24 to punish and to prevent these acts from being

25 committed was not present in Konjic.

1 In Mostar, they were there throughout this

2 time, in Sarajevo later in the year and in Zenica in

3 the fall, and then, due to the conflict with the HVO,

4 this area was blocked and no persons could have been

5 prosecuted there.

6 Again, the Prosecution offered no evidence

7 that the Republican bodies changed the rules of the

8 authority; that is, that they had given Konjic the

9 authority of prosecution, so that even if there was a

10 person of authority who knew that there was a person

11 who needed to be punished, they lacked the means of

12 doing so at that time.

13 Just one more comment on that issue. My

14 colleague, Mr Moran, pointed out that punishing --

15 measures to punish something would also mean preventing

16 these acts from occurring in the future. Zejnil

17 Delalic started discharging the function of superior

18 authority in August and we see that these acts subsided

19 by August, and we see that, even following the ICRC

20 visit in August, there are no more acts of this kind.

21 I am not saying who is the person who was

22 supposed to prosecute. I know that I was in that

23 position for 17 years, and so I know, but I know that,

24 in this case, no prima facie case was established and

25 this is a condition sine qua non of establishing

1 responsibility of my client, so no point of Article

2 7(3) has been established and all the charges relating

3 to that need to be dismissed.

4 I am only going to take five more minutes and

5 this is relating to the personal responsibility of my

6 client in persecution of civilians.

7 My client did not imprison or detain or

8 decide on the detention of civilians, and my colleague,

9 Mr Moran, said that, as confirmed by the witness, these

10 were persons who were, in a period of immediate threat

11 of war and a state of war, had blocked the area. He

12 said that the responsibility of the commander is to

13 de-block and to arrest everyone. They had arms bought

14 on the black market or obtained through the SDS and

15 possession of weapons is against the law. Therefore,

16 if they were detained, this detention could have been

17 lawful.

18 This, of course, does not justify the

19 commission of any bad acts against them, but this was

20 not unlawful detention. It is, rather, the conduct of

21 proceedings against those persons, some of whom

22 testified that they had been tried.

23 As with respect to this charge, count 48 of

24 the indictment, there is no evidence offered by the

25 Prosecution to establish a prima facie case, or,

1 rather, for an objective observer, if he were to

2 analyse all this evidence, he would come to the clear

3 conclusion that Zejnil Delalic is innocent and that the

4 indictment against him should be dismissed on all

5 counts. Thank you.

6 JUDGE KARIBI-WHYTE: Thank you very much for

7 your contribution.

8 As I indicated just recently, we would like

9 to rise now and continue at 10am tomorrow morning,

10 instead of continuing now and having a break within the

11 next 10 or 20 minutes. The Trial Chamber will now

12 rise.

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14 --- Whereupon the hearing adjourned at

15 4.10 p.m., to be reconvened on Thursday,

16 12th March 1998, at 10 a.m.

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