1 Monday, 31 August 1998

2 --- Upon commencing at 11.10 a.m.

3 JUDGE KARIBI-WHYTE: Good morning, ladies and

4 gentlemen. We're back here after a fairly long spell

5 and I know you are very hard pressed to meet the

6 deadline. I congratulate all of you for meeting it.

7 That's excellent.

8 Now, we have a few motions to consider. Some

9 have been taken over by the efficiency of the machinery

10 here. Perhaps the only one I can have in mind is

11 Mrs. McMurrey's admission against the leading counsel

12 for Mucic. Do you still think it is necessary to argue

13 it?

14 MS. McMURREY: Your Honour, I do believe that

15 there needs to be an objection. I would like to, but

16 of course, I am not going to reargue all of the

17 points. Everything that I stated in my motion, I still

18 stand for. Basically, that Ms. Buturovic was our

19 investigator for a short period of time. As the Court

20 is aware, there was a conflict in the fee vouchers.

21 That Mr. Landzo signed a waiver to allow her to be

22 investigator for Mr. Mucic, but he did not sign a

23 waiver to allow her, saying that there was no conflict

24 of interest if she were lead counsel.

25 There is another thing I did not say in my

1 motion. That she also represented two of our witnesses

2 who we called here under subpoena who refused to

3 testify, which also amounts to a conflict of interest,

4 I believe. I don't believe that the Defence of

5 Mr. Mucic will be prejudiced by her disqualification

6 because Mr. Kuzmanovic is going to do all of the

7 closing argument anyway. So he is there and present

8 and would be qualified to represent Mr. Mucic in case

9 the Court did decide to disqualify Ms. Buturovic.

10 Thank you.

11 JUDGE KARIBI-WHYTE: Actually, do you think

12 merely making closing speeches, which did not entail

13 any additional evidence, that all that has been

14 recorded? Does is it make any difference to the case

15 of Esad?

16 MS. McMURREY: I am not sure I am clear what

17 the question is. I believe with the punishment -- if

18 the verdict is guilty and if there is -- there is a lot

19 of ifs -- if we go on to the punishment phase, that the

20 knowledge that Ms. Buturovic has as our investigator

21 and, you know, the conflict of interest that I think is

22 rampant on her part because of the conflicts that she's

23 had with us, would make a difference if it goes past

24 the verdict, Your Honour.

25 As far as closing argument goes, I don't see

1 there could be much of a big conflict for closing

2 argument, no. I think that was your question.

3 JUDGE KARIBI-WHYTE: Yes, actually, that was

4 the area I was interested in.

5 JUDGE JAN: Just one thing. We are to

6 confine ourselves to what the evidence is before us at

7 this stage. So whether Madam Buturovic had some

8 knowledge, which she shouldn't bring to the Court isn't

9 really relevant at this stage. At the earlier stage

10 you could say. But at this stage we need to confine

11 what the evidence is before us. Madam Buturovic was

12 not so shaded with the defence of any of the accused at

13 the evidence stage. It's merely a question of

14 arguments now.

15 MS. McMURREY: The Court is absolutely

16 correct. I believe at this point it would be very

17 difficult for her to have a conflict of interest. But,

18 in the future, if it goes to the sentencing/punishment

19 stage and all evidence is relevant, then I believe

20 there would be a conflict at that point.

21 JUDGE JAN: Then you can raise a point at

22 that stage.

23 MS. McMURREY: Thank you.

24 JUDGE KARIBI-WHYTE: Thank you very much. I

25 think that resolves it. We don't have to call you for

1 any replies to the motion, so we'll leave it as it is.

2 You are free to take notes in the closing arguments in

3 the interest of your clients.

4 Now, is there any outstanding motion? I

5 think Mr. Moran's motion, as I said, need not keep us.

6 MR. MORAN: You're correct, Your Honour. The

7 Appeals Chamber made that motion pretty moot this

8 morning. The problem is solved. You're aware that my

9 worry was I didn't know whether the Trial Chamber was

10 deprived of jurisdiction because of the appeal. Well,

11 the appeal is over. The Trial Chamber has been held to

12 have ruled correctly. That's the end of it.

13 JUDGE KARIBI-WHYTE: I am only interested

14 that you are more interested in the state of the

15 appellate himself.

16 MR. MORAN: Well, Your Honour, all I can say

17 on that is I was thinking more along the lines of

18 jurisdiction. I didn't want have the Trial Chamber and

19 the Appellate Chamber dealing with the same case at the

20 same time and trying to juggle who is doing what.

21 That's why I brought it to everyone's attention. I am

22 sure you know I brought it to everyone's attention.

23 JUDGE KARIBI-WHYTE: Thank you very much.

24 You did the right thing.

25 Now, you've all received the schedule for

1 argument and the procedure we intend to adopt. Then,

2 do we call on the Prosecution to present its summary for

3 our arguments.

4 MS. McHENRY: Thank you, Your Honours.

5 Teresa McHenry for the Prosecution, appearing with Mr.

6 Niemann, senior trial attorney, and Mr. Huber. Good

7 morning to Defence counsel too.

8 Your Honours, this Tribunal represents a

9 precedent and a challenge. We are here as

10 representatives of the international community to

11 prosecute those persons responsible for serious

12 violations of international humanitarian law. We are

13 to do so impartially without regard to ethnicity,

14 without regard to politics and without regard to

15 victor's justice.

16 This Tribunal is to conduct a fair trial, one

17 which searches for the truth while being fair to the

18 parties, the victims, and of course, the accused

19 themselves. After the trial, if the evidence has not

20 established the guilt of the accused beyond a

21 reasonable doubt, it is certainly the duty of this

22 Tribunal to acquit. But if the evidence has

23 established the guilt of the accused beyond a

24 reasonable doubt, it is the duty of this Tribunal to

25 convict. When this is done and when those persons

1 proved to be responsible for violations of law are

2 convicted, justice will have been achieved and this

3 Tribunal will have met one of its fundamental

4 challenges to show to the persons in the former

5 Yugoslavia and the international community, generally,

6 that even in war there are limits. That the principles

7 of international law do mean something in this modern

8 world and in modern warfare and that persons who

9 violate those principles can be found responsible.

10 Let's be honest, the challenge is not an easy

11 one: practically, emotionally, legally. It's a hard,

12 laborious process. It's especially hard here because

13 not only is this Tribunal a precedent, but this trial

14 is, itself, a precedent. This Tribunal will be

15 rendering one of the first verdicts of command

16 responsibility. Will be considering new issues

17 regarding mental health. I am sure we will be

18 considering many other issues as well.

19 The challenge of finding the truth may not

20 always be as easy as it is in our national systems. At

21 the time the crimes happened, there was not an

22 independent police force operating, rather there was a

23 war going on. So some things, be they documents,

24 autopsies, contemporaneous interviews, may not be in

25 evidence. Many of these things never existed because

1 of the ongoing war. Even when such physical evidence

2 did exist, it may be gone or unavailable because it was

3 destroyed after the war, because it's in the hands of

4 persons in whose interest it is not to turn it over.

5 So the evidence sometimes may take a slightly different

6 form.

7 Further, with respect to witnesses, sometimes

8 it might be harder to have witnesses testify.

9 Sometimes the witnesses can't be located or they're too

10 traumatised or scared to testify. When the witnesses

11 do come, there are language differences, maybe even

12 some cultural differences to consider. But while the

13 process of presenting and evaluating the evidence may

14 take a little longer, require a little more work, the

15 basic process is the same here as in all criminal

16 trials. It is to evaluate the evidence, including the

17 reasonable inferences to be drawn from the evidence.

18 It is to evaluate the witnesses, including their

19 credibility. In all of this, you will resort to your

20 experience as jurists, as human beings and you will

21 rely on your common sense.

22 So the process may take a little longer or be

23 a little harder, but it's fundamentally the same. Of

24 course, the ultimate question is the same: Does the

25 evidence establish guilt beyond a reasonable doubt?

1 When you consider the evidence in this case, Your

2 Honours, as a whole, when you consider the physical

3 evidence, the testimony of the witnesses, the

4 inferences that must be drawn from the evidence, we

5 respectfully submit that there can only be one

6 conclusion. That is, that the evidence has established

7 beyond a reasonable doubt, the guilt of each of the

8 four accused in this case.

9 In considering this case, I submit there are

10 really two kinds of issues. One kind surrounding the

11 crimes themselves and the second kind concerning

12 responsibility for those crimes.

13 Just for one minute I would like to talk to

14 about the law as it regards to the crimes. The

15 Prosecution submits that there can be no genuine

16 dispute, that the underlying crimes charged here:

17 murder, torture, rape; are crimes that are recognised

18 by Articles 2 and 3 of our statute. We also submit

19 there can't be any genuine dispute that Article 3 is

20 applicable to this case. There is, however, a dispute

21 about whether Article 2, grave breaches of the Geneva

22 Conventions is applicable. The defence would interpret

23 the law narrowly so that it would, in effect, only

24 apply in those situations, where long established

25 countries are at war with each other with

1 well-organised and well-dressed armies fighting each

2 other.

3 The Prosecution submits the world isn't

4 always that simple. Countries break up and complicated

5 questions of succession and reorganisation and

6 recognition exist. Other countries become involved

7 with different parts of the war. Citizenship laws

8 don't always exist immediately. Even when they do,

9 they're sometimes not clear or in accordance with

10 international law. The parties on all the sides won't

11 always have uniforms.

12 But international humanitarian law, including

13 as it has developed since the Second World War doesn't

14 require the world to be that simple for the law to

15 apply. The application of the Geneva Convention

16 depends and looks to the reality of the situation. So

17 someone doesn't necessarily have to wear a uniform to

18 be entitled to POW status as long as they're in combat

19 they wear their arms openly. Persons can be protected

20 even where the internal, technical, citizenship

21 requirements are not clear.

22 Here, in this case, in the Celebici case, the

23 reality of the situation as shown by the Prosecution

24 evidence, and indeed, as acknowledged by the Defence

25 witnesses and acknowledged by the Government of

1 Bosnia-Herzegovina upon whose behalf the accused were

2 acting in 1992. The reality of the situation was that

3 this was an international armed conflict and that

4 persons in Celebici were arrested because they were

5 considered to be Serbs and possible POWs associated

6 with the adversary. Article 2 should, therefore,

7 protect the victims in the Celebici camp.

8 With respect to the underlying crime, Your

9 Honours, you heard testimony from 30 detainees, 30

10 courageous people, 30 survivors, who came here from all

11 over the world to tell you about what they experienced

12 and about what they saw and heard of the experience of

13 others. Some were in Celebici for as long as seven

14 months. Many still bore the scars, emotional and

15 physical, of their experience there.

16 It's been a while since we've heard from the

17 detainees and it's easy as we discuss the structure of

18 the army, the strictures of the international law, the

19 details of an accused's psychiatric history, it's easy

20 not to think about the victims. In fact, it's often

21 appropriate and sometimes even necessary to maintain a

22 distance from the crimes. But we can't forget about

23 the crimes or the victims entirely. When one remembers

24 the testimony from the victims and thinks about it just

25 for a minute, the crimes are there. The crimes, which

1 is really the reason why we're all here.

2 You heard from some of the victims. A woman

3 who after being raped multiple times by persons young

4 enough to be her son said she will never be the same.

5 Numerous persons who have been set on fire. Persons

6 who had lit fuses put in their anus. Persons who were

7 forced to commit sex acts family members. People who

8 were beaten to unconsciousness and people who were

9 beaten so badly they couldn't walk for days. People

10 who beaten so badly that they defecated in their single

11 pair of pants. People who had to hear or watch as

12 their fathers or their sons or their friends and

13 neighbours were beaten, often beaten to death.

14 Many of the incidents the victims told you

15 about were particularly noteworthy because they were

16 unusual in their details or in their savagery. The

17 victims also told you about the ordinary incidents,

18 things that happened every day, when they would be

19 kicked in the ribs with army boots when they were

20 sitting in the hangar in the required position. When

21 they were hit with rifle butts when they ran to the

22 open trench to try to go to defecate in their allotted

23 several minutes. These things happen all the time.

24 You also heard from the victims that all the time they

25 were in a state of fear, even when they weren't

1 actually being mistreated. They had to live every day

2 and almost every moment in fear that they would be

3 called out, called out, and beaten and raped or

4 killed.

5 One witness talked about how happy the

6 detainees were once when there was a big rain and

7 thunderstorm. How they actually slept soundly because

8 they knew that no one was going to come and get them

9 that night.

10 You heard from a large number of victims and,

11 as I said, some victims didn't testify for various

12 reasons. Of course, there were also some victims who

13 could not come: Scepo Gotovac, Zeljko Milosevic, Simo

14 Jovanovic, Bosko Samoukovic, Slavko Susic, Milorad

15 Kuljanin, Jelico Cecez, Slobodan Babic, Petko

16 Gligorevic, Gojko Miljanic, Zeljko Klimenta, Miroslav

17 Vujicic, Pero Mrkajic. You didn't get to hear from

18 these victims because these victims were all dead,

19 murdered in Celebici.

20 The testimony from the detainees would be

21 more than enough to prove the crimes charged. But, of

22 course, you have more than that in this case. You

23 have, for instance, testimony from persons who worked

24 in the camp, including Witnesses D and T. You have the

25 report made in June '92 by a group of Muslims and

1 Croats who were supposed to work in the camp as an

2 investigation commission, who finally refused to work

3 because they didn't want to be a part of it. So they

4 wrote a report. In that report they said that there

5 were frequent murders. They said women were being

6 taken out and sexually abused. They talked about the

7 terrible beatings. It's all in there. Now the

8 Prosecution and Defence can make their arguments about

9 whether the persons to whom the report was directed,

10 including Mr. Delalic, actually saw the report. But

11 they can't honestly that dispute that in 1992 the

12 crimes talked about in the report happened.

13 And, of course, we can't forget that the

14 accused themselves have told you that horrific crimes

15 were happening. Mr. Landzo spoke to you directly about

16 the mistreatment by himself and by others. In fact, he

17 could only remember one other guard who didn't mistreat

18 detainees. Mr. Delic in his OTP interview said that no

19 night would go by without the prisoners being beaten.

20 Mr. Mucic said in his interview that he heard reports

21 from others that he saw the injuries and even that he,

22 himself, saw people being abused. Even Mr. Delalic,

23 who was not at the camp frequently, reported in his

24 interview that from the beginning he knew about

25 problems in Celebici, including that persons could come

1 to beat the Serbs for revenge. Then later in August he

2 heard from the Red Cross that persons, including

3 Mr. Delic, were mistreating the prisoners.

4 So in this case, Your Honours, there really

5 isn't any doubt that there were crimes. As set out in

6 detail in our written submissions, there really isn't

7 any doubt that the crimes set out in the indictment

8 were committed as alleged.

9 So then we come to the responsibility

10 issues. Because each one of the four accuses says,

11 well, these victims have been murdered, tortured,

12 otherwise mistreated, but I am not responsible.

13 So let me briefly speak to the responsibility

14 of each of the accused. Mr. Delic and Mr. Landzo are

15 charged under 7(1) of our Statute with direct

16 participation in a number of crimes. Mr. Delic has

17 denied committing any crimes at all. And our response

18 to that is simply ask that the evidence be reviewed.

19 The evidence is overwhelming that among other things,

20 Mr. Delic murdered, Mr. Delic tortured, Mr. Delic

21 raped, Mr. Delic beat and Mr. Delic humiliated

22 detainees. The detainees tried to explain to us what

23 it felt like, how they were terrified at the sight of

24 him. In fact, everyone was terrified of him, the

25 detainees and even the people who worked at the camp.

1 As one detainee put it, he was God and your life

2 depended on it.

3 Mr. Delic revelled in this. He revelled in

4 what he could do, and what he could do, he did do, and

5 then he bragged about it. He used his baseball bat.

6 He used to his boot. He used his rifle. He used a

7 special electrical device. He used his sex and he used

8 his power. He used all these things to mistreatment

9 the prisoners themselves. Then he used his position as

10 a deputy commander to order others to do the same

11 things. A number of the detainees talked about hearing

12 Mr. Delic order guards to mistreat detainees. And

13 sometimes the detainees could actually watch Mr. Delic

14 as he watched the mistreatment or they could hear him

15 as he supervised and gave instructions.

16 Mr. Delic killed, tortured, raped, beat, and

17 what does the Defence suggest during the trial about

18 Mr. Delic's activities in the camp? The Defence

19 brought out that after a few months Mr. Delic got some

20 blankets and divided them up so each detainee had part

21 of a blanket. The detainee said, "Yes, that's true."

22 Fine, later when sentencing Mr. Delic for murdering,

23 raping and torturing, you can consider Mr. Delic once

24 gave them part of a blanket.

25 Mr. Landzo is charged with murders, tortures,

1 really almost any kind of mistreatment that can be

2 imagined, Mr. Landzo did it. His time in the camp was

3 an orgy of sadism.

4 Mr. Landzo agrees he committed many of these

5 crimes, but he says he is not responsible. In fact,

6 the Landzo Defence went so far as to claim, and I

7 quote, "The true victim of the aggression in this case

8 is Esad Landzo." If it wasn't so offensive it would be

9 almost comical.

10 We heard about him being pushed over by a

11 goat, and his asthma, and his hand, and his friendship

12 with stray dogs and his art school; and for all these

13 reasons and more the Defence says Mr. Landzo has a

14 personality disorder and post-traumatic stress

15 syndrome, and so he has diminished responsibility.

16 As a matter of fact and as a matter of law,

17 the Prosecution respectfully submits that the

18 submissions of the Defence should be summarily

19 rejected.

20 The Prosecution agrees Mr. Landzo has certain

21 problems. Anyone who heard the testimony of the

22 victims would know Mr. Landzo had some problems. We

23 didn't need four psychiatrists to tell us that. But

24 lots of people and lots of criminals have problems.

25 The Defence points out Mr. Landzo was a young

1 lad and easily influenced. Prosecution agrees

2 Mr. Landzo was young, an adult, of course, but young,

3 and easily influenced. But the evidence shows that he

4 still had the ability to make his own decisions. And

5 he did make his own decisions. Lots of people and lots

6 of criminals are young and easily influenced. That

7 isn't a defence to responsibility.

8 There is nothing in Mr. Landzo's psychiatric

9 history or any other history that would excuse him from

10 responsibility or would serve to diminish his

11 responsibility. There is no doubt Mr. Landzo knew the

12 difference between right and wrong and he could control

13 his actions.

14 In fact, the evidence shows when it was in

15 his interest to do so, Mr. Landzo easily controlled his

16 actions. Mr. Landzo chose to follow orders to kill,

17 torture and otherwise mistreat prisoners, and he chose

18 to kill, torture and mistreat prisoners on his own

19 initiative; and he is responsible for his choices.

20 This is a man who told a defence psychiatrist

21 that he would inflict pain and suffering on prisoners

22 for two reasons: One, that he was ordered to do so;

23 and two, because he was bored and frustrated. He

24 stated he never had any difficulty doing this and that

25 he enjoyed it.

1 This is a man, Your Honours, who when asked

2 by his own attorneys, did you mistreat a particular

3 person, sometimes he said, "I did," sometimes he said,

4 "I think I did, I think I set that person's leg on

5 fire," and other times he says, "I can't remember."

6 This is a man who did so many terrible things

7 to so many different people he can't even remember them

8 all. Your Honours, this is a man who needs to be made

9 to take responsibility for his actions.

10 So, the evidence establishes that Mr. Delic

11 and Mr. Landzo committed many crimes over many months,

12 they did terrible things, and they need to be found

13 guilty. But the next question is: How were they

14 allowed to do these things? They and the many others

15 who committed horrible crimes, how were they allowed to

16 do it? How in an official military prison could so

17 many crimes happen over so many months? How could it

18 happen? Who let it happen?

19 And that's another question of

20 responsibility. The question of superior authority.

21 And it's a question that's a big part of this case and

22 a question that's a big part of why this Tribunal

23 exists. Because it's a sad truth that people like

24 Mr. Delic and Mr. Landzo exist everywhere, and that's

25 why there is a doctrine of superior authority. The law

1 which says to superiors, you have responsibilities to

2 find out what's going on and to prevent or punish

3 crimes, even if you, yourself didn't participate in the

4 crimes and even if you didn't order the crimes, even if

5 you're a good person who didn't want the crimes to

6 happen, even if you were busy with other important

7 matters; if you are a superior, you have certain

8 responsibilities.

9 The exact nature of the responsibilities and

10 what kind of action should be taken will depend on the

11 circumstances, including the scope of the authority,

12 the nature of the misconduct, the avenues available to

13 prevent or punish. So what a superior is obligated to

14 do may differ, but that they are obligated to do

15 something is clear.

16 Mr. Delic, Mr. Mucic, Mr. Delalic all say

17 they weren't superiors. They more or less agree they

18 didn't do anything to prevent or punish what was going

19 on in the camp, but they say it wasn't their

20 responsibility.

21 Each of them says, "I was in some ways at

22 some time involved in the administration of the camp,

23 but I wasn't a superior." Mr. Delic says he was just a

24 deputy commander with no authority. Mr. Mucic says he

25 was just a commander or warden with no authority.

1 Mr. Delalic says he was just a coordinator and Tactical

2 Group commander who handled matters on other people's

3 behalf, but he had no authority.

4 The evidence, however, is to the contrary

5 with respect to each of the three accused. First,

6 Mr. Delic. The evidence shows that Mr. Delic had

7 authority over the guards. And when Mr. Mucic was

8 gone, as was frequently the case, Mr. Delic was in

9 charge with full authority. He exercised his authority

10 over the guards, but instead of preventing them from

11 mistreating the prisoners, instead of punishing them,

12 he chose to encourage them.

13 It's possible Mr. Delic's authority was not

14 entirely unfettered. It's possible he could not have

15 instantly discharged a guard. But it is clear he could

16 have taken any number of actions to prevent or punish;

17 reassigning the guards, confining them to barracks,

18 preventing them from contact with the detainees,

19 notifying the superiors, recommending the guards be

20 court-martialled, resigning.

21 But what did he do? When asked if he ever

22 advised his commander or others of what he had seen, he

23 indicated no, and he said, "There was no rule. It

24 wasn't important to anyone whether anyone would be

25 beaten or killed."

1 Mr. Mucic was commander in Celebici from

2 almost the beginning of the camp's existence. He knew

3 prisoners were mistreated, and the evidence suggests

4 that sometimes he wanted them mistreated. Other times

5 he may not have wanted it, but he didn't do anything to

6 stop it. Maybe sometimes he intervened to help a

7 friend, maybe he didn't like having the guards to

8 mistreat prisoners when he was there to see it; but

9 without any doubt he knew the prisoners were being

10 mistreated, including when he wasn't there.

11 And, of course, he wasn't there very much,

12 and one reason he wasn't there at night, as he said in

13 his interview, was because, "I was afraid of the guards

14 in the camp, and for that reason I never slept in the

15 camp." Three hundred persons or more were at the mercy

16 of the guards and the commander is too scared to sleep

17 there himself.

18 And what did Mr. Mucic do? Nothing. He

19 didn't take it seriously. In fact, it appears he

20 doesn't take much seriously, and normally that's his

21 own business; but when he was a superior, he had

22 people's lives in his hands, and he was legally

23 obligated to take his responsibility seriously, and he

24 didn't.

25 In his interview he was asked what he had

1 done to prevent murders such as occurred when he was

2 commander. And he said, "I have no answer to that

3 question, nothing was done."

4 Mr. Mucic may not take what happened

5 seriously, Your Honours, but this Tribunal must.

6 Mr. Delalic is a more complicated case of

7 superior responsibility. Many of the victims were not

8 in a position to see who was Mr. Mucic's superior.

9 Mr. Mucic didn't testify, so we can't ask him as part

10 of the trial testimony. So, it's true that the case is

11 more complicated.

12 I submit to you that this is entirely normal.

13 It will be true in every case of command

14 responsibility before this Tribunal. And the higher up

15 the chain of command you go and the more intelligent,

16 the more savvy the superior, the more complicated the

17 evidence will be.

18 It doesn't mean the evidence is any less

19 convincing. It doesn't mean the evidence is not

20 sufficient to prove guilt beyond a reasonable doubt;

21 but the picture may be more complicated.

22 The Chamber has to look at a number of pieces

23 of evidence in different testimonies and draw necessary

24 inferences. And you have to look at evidence and fit

25 it together. Is it consistent with each other or

1 inconsistent? You have to use your common sense in

2 determining what is reasonable and what is not.

3 And it may well be that no one piece of

4 evidence will convince you. It may be that for any one

5 piece of evidence, or even more than one, other

6 reasonable or even unreasonable but still plausible

7 explanations exist. But the question is, when you put

8 the pieces of evidence together, do they fit? Do they

9 corroborate? Is there a reasonable explanation that

10 could fit all the different pieces of evidence

11 together?

12 In this case, Your Honours, the Prosecution

13 submits that when you put all the evidence together,

14 there is only one conclusion that may be drawn. The

15 only reasonable conclusion that can be drawn from this

16 evidence considered together is that Mr. Delalic was a

17 superior authority regarding Celebici.

18 In fact, let me say even more. This is an

19 especially strong case of command responsibility. And

20 in saying that, let me talk for a minute about what we

21 have in this case. You have witness testimony and you

22 have much more. You have orders, including orders from

23 Mr. Delalic to Mr. Mucic. You have media interviews

24 with Mr. Delalic in 1992. You have video-tapes,

25 including video-tapes taken during 1992. You have

1 reports from international organisations. You have

2 documents from the army itself. You have release

3 papers from the prisoners. You have numerous documents

4 written by the accused himself concerning some of the

5 issues in dispute.

6 There have been and will be many command

7 responsibility cases where only a few of these things

8 exist, but here you have all of them. And this

9 evidence, and all the other evidence that came out in

10 the trial put together, establishes that Mr. Delalic

11 was a superior.

12 Some of the evidence may be -- some of the

13 pieces of evidence may be small, some big, some may be

14 direct, some may be circumstantial; but all of it fits

15 together and leads to an inescapable conclusion, that

16 Mr. Delalic was a superior.

17 The Defence has offered explanations for much

18 but not all the evidence, and the Prosecution suggests

19 the explanations are incredible. We ask the Chamber to

20 use its common sense. One might be able to accept one

21 or two, but it is impossible, absolutely impossible

22 that all these varied and different pieces of evidence

23 from all different sources all pointing to one

24 conclusion, it's impossible to believe they are the

25 result of some unfortunate coincidence. It defies

1 common sense. It defies even the imagination.

2 The Defence suggests Mr. Delalic is playing

3 dress up and pretending to be in command when he is

4 shown in video exercising command. The Defence

5 suggests the supreme command would have appointed

6 Mr. Delalic to lead Tactical Group 1, tasked with

7 lifting the siege of Sarajevo, the most important

8 priority at the time. Even though, according to the

9 Defence, he had been a civilian with no prior command

10 position.

11 Defence suggests that the order of

12 appointment, which says he has certain authority and

13 would be consistent with the importance of his task,

14 doesn't mean what it says it means.

15 The Defence suggests that different

16 journalists, all of them made mistakes when they acted

17 like he was commander or involved in Celebici. Defence

18 suggests the Red Cross made a mistake when they thought

19 Mr. Delalic was in charge. The Defence suggests the

20 Bosnian army made mistakes in December of 1992 when

21 they thought Mr. Delalic was in charge. The Defence

22 suggests a number of Delalic's friends were lying when

23 they said he was in charge in the seized material.

24 The Defence suggests Mr. Mucic was mistaken

25 or lying in 1992, during the camp's existence, when he

1 told people that Mr. Delalic was in charge and making

2 decisions. Defence suggests Mr. Mucic was lying when

3 he wrote down later on that Mr. Delalic had been his

4 superior. Defence suggests that Mr. Delalic was lying

5 when he wrote down in a number of different documents,

6 some of which had nothing to do with countering any

7 propaganda campaign; they suggest Mr. Delalic was lying

8 in all of it.

9 And, of course, the Defence suggests that

10 when Mr. Delalic signs orders which say "I order you to

11 do this, and you are responsible to me for

12 implementation of this order," it doesn't mean

13 Mr. Delalic is actually ordering something; as

14 Mr. Delalic said in his interview, "That's just a

15 typing mistake."

16 The Defence then also suggests that when

17 Mr. Delalic's friends testify that he was not in charge

18 of Celebici, these friends are now neither mistaken nor

19 lying.

20 And consider the Defence witnesses for a

21 minute. I don't have time to discuss them

22 individually, but I would like to as a group. The

23 Defence witnesses would have you believe no one was in

24 charge of Celebici, either de jure or de facto.

25 The Defence witnesses all corroborated the

1 evidence of the Prosecution, that there were no

2 regulations on who should run prisons in 1992. The

3 Defence witnesses agree it was a military prison and

4 they agree that the MUP and the HVO withdrew early in

5 the camp's existence. And the Defence witnesses agreed

6 even though many of the guards were from the TO, the TO

7 generally did not run the camp, in fact.

8 So Defence suggests no one was in charge of

9 the camp. It just existed for more than six months

10 without anyone supervising it and without anyone having

11 superior authority.

12 The Prosecution submits this is incredible as

13 a matter of common sense and further the Prosecution

14 submits that this is contradicted by the evidence, the

15 evidence shows someone was in charge in fact, and

16 someone gave instructions to the persons who worked

17 there and someone signed release documents for the

18 prisoners, someone dealt with outside bodies, including

19 media and international organisation, someone gave

20 orders to the camp command and that someone was

21 Mr. Delalic. I want to ask you specifically to

22 consider one last thing when evaluating the credibility

23 of the Defence witnesses and the weight to be given

24 their testimony. These witnesses testified with great

25 authority that Mr. Delalic did not have authority over

1 Celebici. But they also said, when asked in

2 cross-examination, that they did not know who was in

3 charge of Celebici. These witnesses were also not in a

4 position to know all of Mr. Delalic's responsibility or

5 activities. So how could they say he didn't have any

6 authority? Your Honours, the most these witnesses

7 could have said is, credibly said, was that they didn't

8 have any information that Mr. Delalic was a superior

9 over the camp.

10 But for a minute let's accept much of the

11 Defence testimony, we'll accept Mr. Delalic's authority

12 as coordinator and TO soldier and later as Tactical

13 Group commander was not such that it would have

14 normally encompassed Celebici camp. Let's accept the

15 defence suggestion that is with respect to those

16 instances where we see Mr. Delalic involved in the camp

17 and even exercising authority, in all these different

18 instances, that he was acting on behalf of others. So,

19 when he gave instructions to the investigation

20 commission, that was on behalf of the TO and the HVO

21 and the war presidency, when he signed release

22 documents, that was on behalf of the TO commander, and

23 he gave interviews about Celebici, that was on behalf

24 of unidentified authorities who couldn't be located.

25 When he dealt with the Red Cross, that was on behalf of

1 the supreme command and, of course, when he gave orders

2 to the Celebici command, that was on behalf of the

3 supreme command. If one accepts all this, all it does

4 is show that Mr. Delalic's authority over Celebici was

5 delegated to him by others. It shows that others share

6 in the responsibility. It shows his authority may have

7 arisen out of the needs of the situation rather than

8 out of his inherent authority. But it still shows that

9 he was a superior regarding the camp.

10 Let's go further. Even if one accepts that

11 Mr. Delalic was not delegated full authority over

12 Celebici, he was not made the direct superior of

13 Mr. Mucic and he could not himself have dismissed him

14 or others under him. Even accepting these

15 propositions, under the law he is still a superior. By

16 his involvement in the running of the camp, by his

17 authority and influence, he still had certain

18 responsibilities and under well established law, he has

19 liability as a superior. Others may share that

20 responsibility, and it may well be that his ultimate

21 sentence should reflect the limits of his authority and

22 the shared nature of it, but that he has liability as

23 an authority, we submit, is clear.

24 Again, I'm not going to review the law in

25 detail, but as seen in our written submissions, even

1 persons lacking authority to control directly the

2 conduct of forces can be liable under superior

3 authority where other means of preventing the

4 commission of offences exist, including by reporting to

5 others or even by resigning. A number of cases

6 submitted, cited on pages 196 to 200 of our brief,

7 Mumenthey, Roechling, Muto, found superior authority in

8 analogous situations, including where the authority was

9 a civilian with no ability to fire the guards, but who

10 was a definite integral and important figure in the

11 whole concentration camp set up.

12 Here, it cannot be doubted that Mr. Delalic

13 was a part of the Celebici camp and he did nothing.

14 Even just taking the things he did, he was involved in,

15 although he was a person to direct the investigation

16 commission, he did nothing to ensure that they were

17 able to finish its work or to find out why they didn't

18 finish their work.

19 On two different occasions when he was

20 approached concerning specific prisoners who were in

21 danger of being murdered or dying, he became involved

22 in getting three of them released, but he did nothing

23 to find out about the 300 or more others who obviously

24 were still in peril. When he was interviewed on

25 Bosnian television refuting reports that conditions

1 were bad in Celebici, he did nothing to ensure that the

2 information he gave was accurate. When he ordered the

3 TO commander and then Mucic to finally do a legitimate

4 classification of the prisoners, he did nothing to

5 ensure that the order was carried out and, in fact, the

6 order was not carried out until January of the next

7 year. And when Mr. Delalic received the reports of the

8 Red Cross, including the first reports which, according

9 to his own admission in his OTP interviews,

10 specifically talked about Hazim Delic mistreating

11 prisoners, he did nothing to investigate or to stop

12 Mr. Delic from doing this in the future. When asked

13 about this, he said, "I sent these reports to further

14 instances, and I did not consider it very important for

15 myself because I dealt with other things which were

16 much more important."

17 Now, it cannot be doubted that Mr. Delalic

18 could have done any number of things, including making

19 inquiries, conducting an investigation, giving

20 additional instructions, writing a report and even

21 resigning. But Mr. Delic did none of these things, he

22 was involved, he was an integral part of the oversight

23 of this camp, and he did nothing.

24 When earlier today I asked, well, how could

25 these things happen in Celebici for so long without

1 anyone doing anything, it's because many persons,

2 including Mr. Delic, Mr. Mucic, and Mr. Delalic did

3 nothing. And given their positions, the law of

4 superior authority says they had to do something.

5 To adopt the Defence suggestions that persons

6 such as these three accused were not superior

7 authorities and thus were not obliged to do anything

8 would be to set out international law to its state

9 prior to the second World War, if not even before

10 that. To adopt the Defence suggestions would be to

11 render superior authority inapplicable to much of what

12 happens in today's world. Among other things, it would

13 render international humanitarian law impotent over

14 situations with paramilitaries. It would render it

15 impotent over situations where the structures of the

16 armies are still evolving. It would render it impotent

17 over a situation where there is shared control of

18 subordinates, but that is not the state of the law

19 today, nor should it be. Indeed, such an approach

20 would only encourage persons to ensure that lines of

21 authority were shared or undefined or unwritten so that

22 no one could be charged with responsibility.

23 In conclusion, Your Honours, the evidence is

24 there, the law is there, and the responsibility is

25 there. All four accused bare responsibility for the

1 crimes in Celebici. The evidence has established their

2 guilt beyond a reasonable doubt and we respectfully

3 submit it is the duty of this Tribunal to convict each

4 of them. Thank you.

5 JUDGE KARIBI-WHYTE: You are going to reply

6 in the order of which the accused have been charged.

7 MS. RESIDOVIC: Your Honours, as you allowed

8 us at the beginning of this trial, the Defence

9 attorneys have decided upon the order in which they

10 will be speaking before this Trial Chamber. And, in

11 that sense, we would be using the time as rationally as

12 possible and to present each of the aspects of the

13 defence as best as possible. In that sense, Your

14 Honours, we felt that we would hear the defence for

15 Mr. Delic, Mr. Tom Moran first, after hearing

16 Mr. Moran, the defence of Mr. Delalic would take the

17 floor and then Mr. Mucic's Defence counsel, and we

18 would wind up by the Defence counsel of Mr. Landzo if

19 that is acceptable to Your Honours.

20 JUDGE KARIBI-WHYTE: It's perfectly

21 acceptable as long as it suits your presentation of

22 your submissions.

23 MR. MORAN: Judge Karibi-Whyte, Judge

24 Odio-Benito, Judge Jan, may it please the Court?

25 JUDGE KARIBI-WHYTE: You may proceed.

1 MR. MORAN: Yes, Your Honour. First, with

2 the help of the usher, last night I was trying to edit

3 my speech down and I figured the easiest thing to do

4 was just give the Trial Chamber a copy of my outline.

5 I want to do this quickly and see if I can give you

6 some time back. Just for the ushers knowledge, the top

7 four copies are correctly paginated, the last ones,

8 pages 24 and 25 are reversed. I apologise for that.

9 The interpreters have been provided copies. There are

10 extra ones if they want and ones there for the

11 Prosecution also.

12 Your Honour, I've been tagged by my

13 colleagues to discuss the law with you. And, of

14 course, I'm welcoming questions, I think those are

15 clearly appropriate, and as you will see from my

16 outline the first thing I would like to discuss with

17 the Trial Chamber is the burden of proof. There seems

18 to be some confusion in at least the Prosecutor's

19 written submission in that the Defence presented no

20 evidence on something, there is no contention, that

21 this is not true. It's my opinion, and I think it's

22 the law, that the Prosecutor has the burden of proving

23 all elements of each offence, beyond a reasonable

24 doubt. That we have absolutely no obligation to do

25 anything, that the Defence lawyers could have sat here,

1 not said a word this entire trial and the presumption

2 of innocence should be sufficient to convict us -- or

3 excuse me, to acquit us. I'm sorry, Judge, it's been a

4 long day. I was up until 3.00 this morning. I

5 apologise.

6 Mrs. McHenry said something that struck me,

7 and I am just going to quote it out of my notes: "When

8 it this is done and when the persons prove to be

9 responsible for violations of the law are convicted,

10 justice will have been achieved." Your Honours,

11 justice is achieved when justice is an achieved. No

12 Prosecutor has ever lost a case, their job is to see

13 that justice is done. If there are a acquittals on all

14 defendants on all counts, the Prosecutor has won the

15 case, because they did not prove it beyond a reasonable

16 doubt and justice has been done. Justice and

17 convictions are two different things.

18 Beyond a reasonable doubt, I have prepared a

19 chart. Actually, with the help of the usher, this is a

20 chart that I've used before to remind people about what

21 is beyond a reasonable doubt. And it simply shows the

22 various levels of evidence. And what it take to get to

23 a guilty. And it starts off with no evidence at all.

24 And it goes to a scintillae of evidence, just the

25 tiniest bit of evidence, and that's a not guilty, or

1 reasonable suspicion, where there are specific facts,

2 that's a not guilty. It goes all the way up to clear

3 and convincing evidence that it's a firm belief that

4 the allegations are true And, under our system, that

5 still is a not guilty. To get to a guilty, you have to

6 go to the very top step on that chart, and that's proof

7 that is so convincing that you would rely on it without

8 hesitation in the most important of your own affairs.

9 That's typical form in the United States as you've seen

10 in my written submission. I understand in Britain the

11 definition is: Are you sure? And you have to ask

12 yourself when you retire to deliberate: Are you sure?

13 In the High Command case, the trial court

14 said when there is ambiguity in testimony or

15 uncertainty as the defendant's connection as the

16 transactions to rely upon to establish guilt, we have

17 followed the well-recognised principle of common law

18 and have accorded to the defendants the benefit of the

19 doubt. That, I believe, is what any court should do.

20 When there is a doubt, when there are ambiguities, it

21 goes to the defendant.

22 Credibility of witnesses. One of the

23 toughest jobs any fact-finder has is judging witness

24 credibility. I am an advocate. They're advocates. We

25 see things through our set of glasses. And, as judges,

1 it's your job to look at things neutrally and

2 detached. To judge that credibility. I have suggested

3 in my written submissions, a few things that I think

4 may help you judge credibility of witnesses.

5 The Prosecutor says the procedures here are

6 foreign and intimidating to some of these witnesses.

7 Well, except for professional witnesses, procedures in

8 every court are foreign and intimidating to every

9 witness, every citizen who witnesses a robbery or is

10 involved in a traffic accident, has to come down to the

11 court house to testify.

12 Language problems. That's something that

13 cuts both ways. Everyone has the same language

14 problem. You've heard probably a hundred times in this

15 trial, there is an interpretation problem.

16 When you go back, I want you to recall, there

17 is a book out about the title of which is, "Truth is

18 the first casualty in a war." We're talking about a

19 trial that arose during a war. And not only that, but

20 we're talking about a situation where people who were

21 involved in that war are still in power in various

22 countries. They have power in Bosnia-Herzegovina there

23 and power in Croatia there and power in the Federal

24 Republic of Yugoslavia. Each one of them, each one of

25 those parties has its interests and it has its people

1 and there may be hidden agendas out there. And I think

2 you should look at that.

3 Prior statements. I think you can look at a

4 witness' prior statement to see if it's consistent. To

5 see how it flows with what he said on that witness

6 stand.

7 Evasiveness. I cited Judge Karibi-Whyte in

8 my written submission where there was somebody who just

9 didn't want to answer a question and Judge Karibi-Whyte

10 said, this is becoming common in this trial or words to

11 that effect. I have got the exact cite there. All of

12 those things show whether or not a witness is telling

13 the truth. Then you have on at least a couple of

14 occasions, direct contradictions between Prosecution

15 witnesses. The best example, and it's one that I have

16 cited and one that I am relying upon is between

17 Grozdana Cecez and Witness T. The Prosecution brought

18 both of these witnesses to you. And they said these

19 are witnesses for the truth. We're bringing them here

20 because they're going to be witnesses for the truth.

21 And what happened? Ms. Cecez said Witness T raped me.

22 And Witness T said it's a made up story. Who are you

23 to believe?

24 Another incident of direct contradiction

25 involved two of the Prosecution expert witnesses:

1 Professor Economides and Professor Gow, related to the

2 end of the Socialist Federal Republic of Yugoslavia.

3 On re-examination, Mr. Niemann brought out that from

4 Professor Economides that the SFRY didn't end until

5 April -- or, excuse me, until September 1992. Why was

6 that? So it would show dual citizenship. What does

7 Professor Gow say? No. The latest possible date was

8 April 27th, 1992. Why is that important? Again, it

9 shows direct contradictions between the Prosecutor's

10 witnesses. People they brought you as witnesses for

11 the truth.

12 Prisoner of war status. I frankly find this

13 rather incredible. I have cited in my written

14 submission several cases, I think seven or eight.

15 Where if you are to believe that these people or any of

16 them were prisoners of war under the conventions, you

17 have to believe, and the Prosecutor has to convince

18 you, that their own witnesses are not credible. That

19 has to be the Prosecutor's position. Because those

20 people testified in such a way that they could not be

21 prisoners of war. I find this just -- something I have

22 never seen before. Where they're making a legal

23 argument which is based on the incredibility of their

24 own witnesses. Incredible stories. If a witness tells

25 an incredible story, you shouldn't believe him.

1 How about Risto Vukalo? He sat in that chair

2 right over there and he told you that a statement from

3 him to the Office of the Prosecutor was coerced because

4 of the guards. That he was afraid that the same thing

5 was going to happen to him that happened in Celebici.

6 And he would have said milk was black. I don't believe

7 that their investigators had great big hulking guards

8 there to threaten people to get witness statements.

9 Bronco Sudar, the man who testified about the

10 ghastly things that happened to him in the Celebici

11 camp. And then you found out he could have left, but

12 decided to stay. That ought to be very, very helpful

13 in judging his credibility.

14 I suggest to you there are two witnesses who

15 are very credible: One of theirs and one of mine.

16 They're credible because they're neutral. Esad Harraz,

17 the Egyptian journalist. They called and put on the

18 stand as a witness for the truth. He is the only

19 person who testified in this trial who was in the camp

20 at the applicable times and is neutral, who does not

21 have an axe to grind. What did he tell you about those

22 conditions in that camp? He didn't see any prisoners

23 that were beaten. He didn't see any evidence of

24 starvation. He didn't see any mistreatment and he

25 didn't take part in any mistreatment. Medical supplies

1 in Building 22 appeared to be about right for the

2 number of patients. Now, that, one, goes to the fact

3 of the case. There is something else that goes to

4 credibility of witnesses. Because several witnesses,

5 Witness M, Miro Golubovic, Novica Dordic, Risto Vukalo

6 and Witness J and Witness R, sat on that witness stand

7 and told you that the Arab television crew either

8 filmed beatings or participated in them.

9 Another witness, I think is the witness for

10 the truth is Eduardo Bellas. Dr. Bellas was brought

11 here to talk about the scientific evidence. If the

12 Prosecution witnesses had been telling the truth, if

13 their testimony was factual, what in all likelihood

14 would have been the scientific results of that kind of

15 treatment? And what did he tell you? There would have

16 been infectious diseases. You don't have to be a PhD

17 in epidemiology to figure out that if people are eating

18 food with faeces on it, drinking water with pieces of

19 faeces in it, that you're going to have infectious

20 diseases. You didn't hear any testimony about massive

21 outbreaks of infectious disease.

22 Heat stroke. The kinds of temperatures, the

23 water, lack of water that the Prosecution witnesses

24 testified about. A litre and three or four people have

25 to share it. You would have had dead people from heat

1 exhaustion. Where are they? You didn't hear about

2 them.

3 Esad Landzo, special case. The Prosecutor

4 can't decide whether Esad Landzo is a truth teller or

5 he is not a truth teller. Part of the time in their

6 written submission, they say he is a liar. And part of

7 the time they rely on him, his testimony for the truth

8 of the matter. I suggest as to Esad Landzo's

9 testimony, the Prosecutor ought to pick a horse and

10 ride it. He is either a truth teller or he is not and

11 you know my position.

12 Let's talk about the statute of the Tribunal

13 for a second. The actual statute itself and what it is

14 and what it does. There seems to be some confusion, at

15 least on the Prosecution side and maybe on my side as

16 to what the statute of the Tribunal is. In my view,

17 and I think the view of the Secretary-General and

18 security counsel. The statute of the Tribunal does not

19 create crimes, does not define crimes. Does not create

20 any substance of offences. If it did, my client is not

21 guilty because the statute was not passed until about

22 six months or seven months after the last offence

23 alleged in the indictment. What the statute of the

24 Tribunal does is it sets up a court. It sets up a

25 Tribunal to hear allegations of some types of

1 violations of pre-existing international law. Statute

2 doesn't create law. The knew Rome statute does. The

3 statute that was passed in Rome last month, creates

4 law. It creates offences, defines offences. It does

5 that because it's a treaty process which most of the

6 nations of the world, most of the civilised nations

7 have agreed to.

8 JUDGE JAN: That is quite right. He comes

9 from the United States, that is quite right.

10 MR. MORAN: Your Honour, some day we'll talk

11 about Jesse Helms.

12 The security counsel is not a legislative

13 body -- or, for that matter, the general assembly does

14 not have the authority to do this on its own, to define

15 legislation.

16 Another area is this: The Prosecutor has

17 failed to prove, failed to present any proof that the

18 Geneva Conventions and their protocols or their

19 protocols were, in effect, and applicable to these

20 defendants. I know that sounds crazy, but that, in

21 fact, is the truth. And Professor Bassiouni says that

22 Bosnia-Herzegovina acceded to the conventions on

23 December 31st, 1992. They were not applicable as

24 conventional, international law.

25 International armed conflict. We beat this

1 thing to death. Just one thing I would point out to

2 the Trial Chamber and then I'll move on to something

3 else. In Paragraph 6.83 of the Prosecutor's submission

4 they talk about a May 22nd, 1992, agreement under

5 common Article 3 of the conventions. What they're

6 saying is that the parties expected the grave breaches,

7 clauses and provisions of the conventions to apply.

8 Well, if you take a look at what the Prosecutor says in

9 that paragraph, it says that the parties to the

10 conflict were the government of the Republic of

11 Herzegovina, the SDA party, SDS party, the Serb party

12 and the Croatian party. Nowhere in that agreement on

13 May 22nd, 1992, do you see anybody except Bosnians.

14 That's their argument.

15 They're not happy with the Appeals Chamber

16 ruling and the Trial Chamber ruling in the Tadic case.

17 It's the law. I would suggest also that the member for

18 commission on experts did say that after May 1992, when

19 the JNA was ordered to split and all those events

20 occurred, it became an internal armed conflict at the

21 times applicable to this case. It's cited in my

22 written submission, Commander Fenrick, who I believe

23 the Prosecutors are familiar with, to his government,

24 the Canadian government, suggested that prior to April

25 6th, 1992, when Bosnia became an independent state, it

1 was an internal armed conflict. April 6th through May

2 19th, international armed conflict became internal

3 armed conflict again on the 19th of May. Why is this

4 important? Well, obviously it's important to their

5 argument.

6 It's something else. It's important for

7 another reason. This Court is not a court of general

8 jurisdiction. This is a court of limited

9 jurisdiction.

10 JUDGE KARIBI-WHYTE: Why don't you say

11 special jurisdiction?

12 MR. MORAN: Your Honour, the phrase we would

13 use in my country is limited. I think, probably,

14 special better. This Trial Chamber does not have the

15 right to, for instance, hear a case for a genocide in

16 Rwanda. The Prosecutor as the plaintiff, bears the

17 burden of showing, proving, that this Trial Chamber,

18 this Tribunal has jurisdiction. They made a

19 jurisdictional allegation in their indictment,

20 international armed conflict. I would submit to you

21 that if they don't prove international armed conflict,

22 they have failed to prove that this Tribunal has

23 subject matter jurisdiction.

24 Why else is it important? Obviously for the

25 Article 2 counts.

1 JUDGE KARIBI-WHYTE: Actually is that what

2 Article 1 gives the courts?

3 MR. MORAN: Article 1 sets out the Tribunal's

4 jurisdiction. But international armed conflict is also

5 important for the Article 2 counts in the indictment.

6 The Prosecutor said that we would have that read

7 narrowly. You bet we would. We would have the words

8 of the Geneva Convention be interpreted to mean what

9 they say on paper. That the plain language of the

10 Statute be interpreted or be applied. We say that when

11 the Geneva convention on civilians says, in the hands

12 of a party of which they are not nationals, that's what

13 it means. It doesn't mean identification with a

14 different side or anything else. It means what the

15 parties to the convention agree to. Nothing more,

16 nothing less.

17 In a hostages case, another thing that the

18 Court there said is that criminal laws are to be

19 interpreted narrowly. That that is the way that

20 criminal law should be interpreted. We're asking you

21 to interpret it like it's written and if that's narrow

22 and if the Prosecutor isn't happy about that, then

23 maybe the Prosecutor ought to be in Geneva talking to

24 the Red Cross about having the Geneva Conventions of

25 2001 and to change them. You should interpret the laws

1 as they're written.

2 Common Article 3. The Trial Chamber is well

3 aware, it's my position, it was Mr. Ackerman's position

4 when he was here, it was everyone's position that at

5 least prior to the adoption of the Rwanda statute there

6 was no indication that common Article 3 provided for

7 individual criminal liability. I think that the new

8 Rome statute makes that even clearer. That when it

9 lists crimes, the Rome statute does two things with

10 common Article 3; one, it talks about laws and customs

11 of war, and then it goes on to talk about common

12 Article 3. The second thing that the Rome statute does

13 is recognise the common Article 3 applies for

14 individual criminal liability only in internal armed

15 conflicts. Just like it says in the conventions. The

16 Prosecutor would give a very, very broad reading. I'll

17 admit that under the Tadic appeals' decision, it's

18 clearly a legitimate reading. In fact, it's probably

19 consistent with what the Tadic court said. I would

20 just assert that it is wrongly decided. Now, I think

21 you're bound by it. But I think I also have to raise

22 the issue here in order to ask the Appeals Chamber to

23 reconsider in Tadic.

24 I would suggest to you that there is no proof

25 that's been presented to this Trial Chamber, or, for

1 that matter in the Tadic case, that the nations of the

2 world have adopted as customary, international law,

3 individual criminal liability for violations of common

4 Article 3. The one case, and I am scared to cite this

5 case -- because I am probably talking to its author --

6 the one case that the Appeals Chamber cited from that

7 proposition was from the Nigeria Supreme Court, a 1972

8 case. I pulled the case and read it. It appeared to

9 me that the defendant in that case was charged under

10 Nigerian law with murder. That the Supreme Court

11 simply mentioned in passing that international law

12 doesn't allow you to murder people during conflicts.

13 Even if common Article 3 provides for individual

14 criminal liability, there has to be some evidence

15 before the Trial Chamber, if it's customary

16 international law, who is protected? Who do the

17 nations of the world believe that international law

18 requires them to protect under common Article 3 as

19 customary international law during an international

20 armed conflict? There is zero evidence of that. The

21 Prosecutor bears the burden of showing you that

22 factor.

23 I would suggest that common Article 3 as

24 applied to international armed conflict provides most

25 people with very little protection and, in fact, does

1 not provide any protection to most people. It's clear

2 that the authors of the convention chose not to

3 interfere with the right of a nation, at least in an

4 international armed conflict to deal with its own

5 nationals. That's why the definition in Article 4 of

6 the convention on civilians is written the way it is.

7 In fact, dictator's commentary says that. "The

8 convention remains faithful to the recognised principle

9 of international. It does not interfere in a states'

10 relations with its own nationals." When you think

11 about it, it really is pretty logical.

12 In an internal armed conflict, which is what

13 common Article 3 was designed and written to regulate,

14 the presumption that a government protects its own

15 people falls. The government is fighting with its own

16 people. So there has to be some international law

17 protection there. When governments engage in crimes

18 against humanity and genocide, there is international

19 law protection there to protect people from their own

20 governments. To protect the Jews from the Nazis. But,

21 generally, it is not the business of international law

22 on how the United States government treats me or the

23 Australian treats Mr. Niemann. That is between us and

24 our government, so long as they don't engage in

25 genocide and crimes against humanity.

1 I would suggest that the class of people who

2 are protected by common Article 3 in an international

3 armed conflict are very narrow indeed. That would

4 include such things as nationals of neutral states that

5 have diplomatic relations with the parties. Or

6 possibly nationals of states who are not bound by the

7 Geneva Convention on civilians, therefore, depriving

8 their own nationals of protection when they're in other

9 countries. Protected persons.

10 The Prosecutor has to prove two things: One,

11 they have to prove beyond a reasonable doubt there is

12 international armed conflict. The second thing that

13 the Prosecutor has to do as a matter of law is show

14 that the individual named as a complainant in that

15 indictment was a protected person under the

16 conventions. The Prosecutor seems to try and mull

17 this, that you don't have to decide the nationality of

18 each person. They've said that and they've said that

19 and they've said that. The fact that those people are

20 protected or not protected is an element of the

21 Prosecutor's offence. They're trying to shift the

22 burden of proof to us. They're trying to avoid having

23 to prove the elements of their case and meet their

24 burden of proof. They want to ignore the plain wording

25 of the convention.

1 There is no evidence before this Trial

2 Chamber. None. Zero. That the people who were named

3 in that indictment were not nationals of the Republic

4 of Bosnia-Herzegovina. None. The Prosecutor says the

5 evidence led by the Defence on the actual citizenship

6 of detainees is relevant and is not required to show

7 that they were not non-nationals of

8 Bosnia-Herzegovina. That's contrary to what Dr.

9 Economides told you, their expert. That's contrary to

10 law. They know it is. They bear the burden of proving

11 non-nationality.

12 If you look at paragraph 2 of the indictment,

13 the Prosecutor says: Beginning in the later part of

14 May, 1992, forces consisting of Bosnian Muslims -- it's

15 on page 9 of my outline Your Honour -- and Bosnian

16 Croats attacked and took control of those villages

17 containing predominantly Bosnian Serbs. Why do we call

18 them Bosnian Serbs? Why does the Prosecutor call them

19 Bosnian Serbs? Because they're Bosnians. That's why.

20 That is not only a judicial admission, that is their

21 assertion. They are asserting to you that they are

22 Bosnian Serbs. Bosnians.

23 Paragraph 76 of the Tadic appellate

24 decision. When you look at paragraph 76 of the court's

25 appellate it has a hypothetical. That decision was

1 handed down about five or six months before the

2 Celebici indictment was returned. And, lo and behold,

3 the hypothetical used by the Appeals Chamber is

4 Celebici. Bosnian Serbs in the hands of the Bosnian

5 government. And what does the Appeals Chamber say in

6 the hypothetical? Not an Article 2 violation because

7 they are not in the hands of a party of which they were

8 not nationals.

9 The Prosecutor doesn't like it, doesn't have

10 to like it. That's what the Appeals Chamber says,

11 that's what the law is. This identified with a

12 nationality, shouldn't be considered nationals

13 argument, it doesn't have any foundation in the law.

14 It's a request to ignore the plain wording of

15 Article 4 of the Geneva Convention on civilians it's a

16 request for you to ignore Pictet's commentaries. They

17 say the conventions don't have a definition of

18 nationality. Of course it doesn't. Nationality is a

19 term of art in international law. It has a meaning, we

20 all know what that meaning is. It has a specific

21 meaning, Dr. Economides told you what it is. Then they

22 try to confuse, I think, confuse the issue by citing

23 the Belsen case. The Belsen case involved Polish

24 nationals who were charged with and convicted of war

25 crimes against nationals of other allied powers in the

1 Bergen Belsen concentration camp.

2 And the Prosecution takes the position this

3 shows you can be convicted of war crimes against people

4 who are on the same side of a war that you're on or the

5 same nationality you are. Sure it does. But it

6 ignores, fails to mention the factor in the hands of a

7 party to the conflict of which they were not nationals.

8 The Bergen Belsen concentration camp was a

9 German camp, and the Poles and the French and the

10 English and the Americans in that camp were in the

11 hands of a party to the conflict of which they were not

12 nationals. Germany. They were in the hands of the

13 other side. It was a German camp run by the Germans.

14 The Prosecutor makes, in paragraph 6.93 makes

15 a policy argument that if you're going to hold Bosnian

16 Serbs guilty of grave breaches against Bosnian Muslims,

17 presuming the Prosecutor can ever get around to proving

18 an international armed conflict, then it ought to work

19 the other way around.

20 The Prosecution's position in the Tadic case,

21 and I agree with their proposition of law, I just

22 disagree with their factual analysis. But their

23 proposition of law was that the Republic of Srpska and

24 its army were controlled by the agents of the Federal

25 Republic of Yugoslavia. If that is true, then the

1 Bosnian Muslims who were in Omarska and the other

2 places were in the hands of a party of which they were

3 not nationals, the Federal Republic of Yugoslavia.

4 Paragraph 76 of Tadic, since it cannot be

5 contended that the Bosnian Serbs constitute a state.

6 Clear.

7 Secondly, our position is consistent with the

8 nationality position, citizenship position taken in the

9 Dayton Accords. Article 7A of the Bosnian

10 constitution, the Dayton Accords, says all citizens of

11 either the Republic of Srpska or the Federation are

12 citizens of Bosnia-Herzegovina. 7C says that everybody

13 who was a citizen of Bosnia-Herzegovina immediately

14 before the date of the Dayton Accords are citizens of

15 BH, and it provides for dual nationality.

16 The entire purpose of the Dayton Accords was

17 to arrive at peace by having one country. This

18 Tribunal is a creature of the Security Council to do

19 what; bring about the restoration of peace in the

20 Republic of Bosnia-Herzegovina.

21 It would be ironic as anything if this

22 Tribunal were to make a decision on a matter of law

23 which is contrary to the Dayton Accords which is the

24 agreement to bring about peace.

25 Those people in the Celebici camp were

1 Bosnian nationals, or even if they weren't, the

2 Prosecutor has not proved they were not.

3 Identification with either side does not make any

4 difference.

5 Finally, on this issue, if you take their

6 argument about people being associated with one side or

7 another, really what you're doing is you're having a

8 charter of rights for aggressors.

9 Adolf Hitler in 1938 could have said the

10 people in the Sudetenland are Germans,

11 they're identified with Germany, and I'm going to send

12 the Wehrmacht in to help my Germans, to protect

13 my Germans.

14 Slobodan Milosevic could take their argument

15 and say those Bosnian Serbs are identified with the

16 Federal Republic of Yugoslavia, I have to send the

17 tanks into Bosnia-Herzegovina to protect my people.

18 Identification with one side, ethnicity, no difference.

19 Nationality. Prisoners of war.

20 As I mentioned earlier, I find this argument

21 amazing. Article 4 of the Geneva Convention, on

22 prisoners of war, defines who is a prisoner of war.

23 One of the things they have to show, Article 4

24 paragraph 2 of the Geneva Conventions on prisoners of

25 war, page 13 of my outline; if they are a partisan

1 movement, they have to belong to a party to the

2 conflict. Which party to the conflict did the

3 Prosecutor prove beyond a reasonable doubt these people

4 belonged to? Which one? I haven't heard.

5 There's no showing that these people were in

6 anybody's regular army. There's no showing of a chain

7 of command with a commander responsible for his

8 subordinates.

9 Testimony of the Prosecutor's witness negates

10 prisoner of war status, I lay it out in my written

11 submission. Levee en masse: A levee en masse is where

12 people rise up spontaneously to stop the invader.

13 How can Bosnia-Herzegovina invade

14 Bosnia-Herzegovina? That's right out of the Wizard of

15 Oz.

16 International humanitarian law tries to split

17 people into two groups, basically; combatants and

18 non-combatants, when it comes to how wars are waged.

19 And combatants are legitimate targets. When I wore a

20 green suit and I was carrying an M-16, I was a

21 legitimate target. And that guy wearing a different

22 uniform and carrying an AK-47 was a legitimate target.

23 And you try to keep those groups separated from people

24 who are non-combatants. And to the extent possible,

25 international humanitarian law requires that

1 non-combatants be protected.

2 If you look at the Hostages case, it talks

3 about legitimate combatants and illegitimate

4 combatants. And if you do not come under the

5 definition of a combatant in Article 4 of the Geneva

6 Conventions, and presuming the protocols apply under

7 Protocol I, you do not have the right to engage in

8 combat.

9 The Prosecutor is trying to blur this

10 distinction. And when you blur this distinction, what

11 are you going to have? You're going to have legitimate

12 combatants who are worried about being shot in the

13 back, they are going to shoot first and ask questions

14 later. You cannot let the line between legitimate

15 combatants and non-combatants be blurred.

16 Command responsibility. Prosecutor accuses

17 me of giving an incredibly narrow reading to the

18 Article 2, the types of offences that can be charged

19 under Article 2. They have given an incredibly broad

20 meaning to the word superior, I mean, just incredibly.

21 Everybody is a superior.

22 There seems to be some confusion over what a

23 chain of command is. In their submission, their

24 written submission, they talk about a chain of command

25 in a way that I believe is inappropriate. A chain of

1 command -- well, command responsibility began as the

2 liability of a military commander to control his

3 troops. And it says that he is liable under

4 international law if he fails to carry out his duty to

5 prevent his people from committing war crimes.

6 That's all command responsibility is about.

7 It's nothing magic. That's that duty on that

8 commander. Now, since World War II, in fact in some of

9 the post World War II cases, Tokyo and others, there

10 was a look at command responsibility for non-military

11 commanders. Commander Fenrick and most of the

12 commentators seem to agree that that kind of authority

13 has to be a military command-like authority.

14 This is different from rank in the military.

15 Command is the right by virtue of a person's office and

16 a special assignment to command a military unit. Only

17 that commander has the right to issue orders in his own

18 name and enforce it. The Hostages case, high command

19 case all talk about that.

20 Rank is something different. Rank is where

21 you sit on the degree of precedence within the

22 military; but clearly, non commanders are in units where

23 they have greater rank than commanders.

24 The Toyoda case, which the Prosecutor cites,

25 is an example of that. Admiral Toyoda was the highest

1 ranking admiral in the Japanese navy, and he was

2 charged in the atrocities committed by Japanese naval

3 forces in Manila that General Matsui was hanged for.

4 And he was found not guilty. Why? Not

5 because he didn't have more rank than those Japanese

6 naval forces. He had more rank than any other Japanese

7 naval officer. He was found not guilty because he was

8 not the commander, General Yamashida was the

9 commander.

10 There is a lot of factors in command

11 responsibility, but the two I would point to quickly

12 are the nature and the extent of authority. The nature

13 of authority to be held criminally liable, a military

14 commander or superior, whatever you want to call him,

15 has to be able to, one, issue legally binding orders;

16 and two, he has to be able to enforce those orders with

17 criminal sanctions. That's the distinction between a

18 military commander and the civilian superior with

19 military command-like authority and every other boss in

20 the world. My boss at home can fire me, he can tell me

21 get out of the office, never come back, but he can't

22 send me to gaol.

23 It's not going to be very common you're going

24 to find a non commander superior that is going to have

25 this kind of authority. I suspect that most of the

1 time it's going to be a very, very high ranking person,

2 almost a cabinet level officer.

3 One example cited by the Prosecutor is the

4 Pohl case, cited under paragraph 4.127 of their

5 submission. In that case the Court said Pohl was

6 either a commander or he had the same kind of power as

7 a commander. That, I believe is the correct test. And

8 you have to look at the extent of his authority.

9 So, you have to be able to see what kind of

10 power he has, how he can enforce that power. And then

11 the Prosecutor still gets to prove that he didn't do

12 it. You can't just say there were crimes, this guy is

13 a commander, the crimes didn't stop, or this guy is a

14 superior, the crimes didn't stop, he's guilty.

15 That's the kind of absolute responsibility,

16 absolute liability that the Yamashida case is

17 criticised for and that nobody says exists.

18 Take a look at Article 25 of the Rome

19 Statute. That lays out what I believe is the most

20 recent example of how the nations of the world view

21 customary international law as it applies to

22 command/superior responsibility.

23 And another thing to look at in my written

24 submission is the proposed Article 25, with a footnote,

25 footnote 11 of that report. And what that footnote

1 says is everybody wanted to broaden this beyond

2 military command-like authority; so that's why this

3 draft article is written this way.

4 But if you look at the finally adopted

5 article, it's a lot different from the draft article.

6 It shows the intent of the nations of the world and

7 what they believe is customary law.

8 Extent of authority. Prosecutor's

9 submission, paragraph 4.124; no one can be identified

10 as having been entrusted with specific formal authority

11 over the camp commander or the camp. Nor can the

12 formal limits of Delalic's authority as coordinator or

13 commander of TG-1 be identified with any great

14 precision.

15 They have got to prove beyond a reasonable

16 doubt that Zejnil Delalic had the authority to do these

17 things, and they tell you in writing they don't know

18 what the extent of his authority is. It's Oz.

19 Mucic, no surprise to the Trial Chamber, you

20 handed down a decision about two weeks ago, you said

21 there is no oral or written evidence as to the extent

22 of Mucic's authority or the nature of it. It's not

23 even clear from the record whether Mucic is a military

24 commander or whether Mucic is a civilian prison warden.

25 They just haven't proved it.

1 The record is clear that there's a whole

2 bunch of groups running all over the Celebici camp;

3 there's TIO, HVO, MUP. Their Witness T testified that

4 people would come running in, in the night, and be

5 doing horrible things to prisoners and the guards

6 couldn't stop them. Their Witness T said he was afraid

7 of them.

8 One thing is sure, though; no matter how much

9 authority and what kind of authority Pavo Mucic had in

10 that camp, Hazim Delic had to have the same or less.

11 He couldn't have any more if he was Pavo's deputy.

12 Knowledge. Another thing they have to prove

13 is knowledge. A whole lot of different formulations

14 floating around. The Rome Statute adopts a knew or

15 should have known standard. The indictment uses a

16 lower standard, knew or had reason to know.

17 Protocol I has two different versions. One

18 version says the commander had to have possessed

19 information which should have enabled them to conclude,

20 should. The French version, in English says, possessed

21 information enabling them to conclude.

22 The Prosecutor has to prove beyond a

23 reasonable doubt that this kind of information was out

24 there to Hazim Delic, Pavo Mucic, Zejnil Delalic, and I

25 would suggest that given the fact that criminal laws

1 should be interpreted narrowly, given the fact that

2 Commander Fenrick has written this French version

3 should be used because it is narrower, the

4 Prosecution's feet should be held to the fire and they

5 should be required to prove beyond a reasonable doubt

6 that people they are charging in a command

7 responsibility theory possessed information enabling

8 them to conclude there were war crimes going on.

9 Let me digress for a second and talk about my

10 client individually. There's no evidence he was a

11 commander at any applicable time in this trial. At

12 most he was a deputy at some point. It's not clear

13 exactly what day he began being deputy and what day he

14 stopped. As I've said, the evidence is real murky,

15 unclear. Failed to prove beyond a reasonable doubt

16 what authority Pavo Mucic had.

17 By failing to show what Pavo, what authority

18 Pavo had, and what the nature of his authority was,

19 because Mr. Delic cannot have more authority than his

20 boss, they failed to prove what Hazim had, what

21 authority and what the nature of that authority was.

22 The Prosecutor says he could have done this

23 or that. In fact, there was a commander of the guard,

24 there's plenty of testimony about that, there was

25 testimony from Esad Landzo that Mr. Mucic appointed

1 somebody as commander of the guard. That person was

2 not Hazim Delic.

3 Chain of command in the camp from one

4 commander to another, if it's a military unit it goes

5 from camp commander to the commander of the guard,

6 leaves out the deputy.

7 The leading cases, and I've beaten them to

8 death, are List and von Leeb. The Prosecutor relies on

9 the Muto decision out of the Tokyo Tribunal to show

10 that a deputy commander can be held responsible on the

11 command responsibility theory.

12 What they forgot to do was give you the full

13 quotation. On page 20 of my outline I've given you the

14 other paragraphs there. It seems to indicate, at least

15 my reading, at one time he was a commander, and at

16 another time he was a staff officer, and then he was a

17 deputy commander; and the Japanese troops were engaged

18 in all kinds of ghastly things there. It's not clear

19 from the judgement whether he was convicted for his time

20 as a commander.

21 You look at the authorities that the

22 Prosecution cites in its written submission as it

23 applies to Hazim Delic, and every one of them, on the

24 paper that they sent you, talks about commanders.

25 They look at ICRC commentaries to Protocol I,

1 talks about commanders. You look at the citations from

2 von Leeb and Colonel John Douglas, who was the former

3 commander of the US Army Judge Advocate General

4 school, talks about the criminal liability of

5 non commanders for their own acts. Not for the acts of

6 others.

7 Mens rea for homicide. The statute and the

8 conventions -- I'm informed Mr. Greaves is going to

9 talk about that, so I will skip on to something else.

10 I was not going to discuss individual counts of the

11 indictment, but there are two counts, or two groups of

12 counts that apply specifically to Mr. Delic, and that's

13 the two rape counts.

14 I've laid it out in my written submission why

15 I think there is a reasonable doubt there, but I will

16 suggest a couple of factors to the Trial Chamber. One,

17 neither one of them could pick him out of a photo

18 spread. It's in evidence, the photo array is in

19 evidence. Delic exhibit 1.

20 Mrs. Cecez said she couldn't pick anybody,

21 and Mrs. Antic said there is somebody that looks

22 familiar because of the high forehead. I laid out the

23 exact quotes in my written submission. It's there. I

24 believe, like I say, it's Exhibit 1/3. Take a look at

25 it.

1 On judging Mrs. Cecez's credibility, I've

2 seen evasive on cross and I've seen evasive on cross,

3 and then I've seen Mrs. Cecez's; she sat on that

4 witness stand and told you that she didn't remember

5 whether she made corrections in her prior written

6 statements the day before she sat on that witness

7 stand.

8 She sat on that witness stand and told you

9 she didn't remember whether she was interviewed on

10 television. I'm not going to say whether that is true

11 or not. I'm going to suggest one or two things as a

12 possibility: Either she remembered and didn't want to

13 say so, which goes to her credibility; or in the

14 alternative, she didn't remember, she was telling you

15 the truth from the witness stand.

16 And if that's true, how can she recall events

17 from five years before? If she can't remember what she

18 did yesterday and recount it to you, it goes directly

19 to her ability to recall and recount events accurately.

20 Mrs. Antic. Prosecutor beats me up pretty

21 good in their written submission for my

22 cross-examination of Mrs. Antic. And I wasn't trying

23 to embarrass her, I was trying to get some specific

24 information. And if there's any embarrassment there, I

25 apologise to the Court.

1 Judge Jan and Judge Karibi-Whyte and I talked

2 to her about the hysterectomy and birth control pills.

3 The direct quote is in my written submission. I think

4 Judge Jan said it is a big operation, and every woman

5 knows that, and Judge Karibi-Whyte said it's not

6 getting a wart removed, I think. But go with what is

7 in the written submission and in the transcript.

8 Why did I ask that? Not because I wanted to

9 embarrass the woman. I asked that because I thought it

10 went to her credibility. I've laid out in some detail

11 in my written submission on that.

12 And in closing, before I sit down, we have

13 been here together for about 18 incredibly long months,

14 about 200.000 frequent flyer miles, and I probably made

15 you unhappy; and if I did, hold me in contempt, grab me

16 outside, beat with me that baseball bat, but don't hold

17 it against my client, hold it against me.

18 JUDGE JAN: That's an outrageous suggestion.

19 Even if you've done anything, we will not give you

20 discipline.

21 MR. MORAN: I'm just reminding everyone.

22 JUDGE JAN: It's an outrageous suggestion.

23 MR. MORAN: I withdraw it. It's just --

24 JUDGE JAN: Your client is on trial, not you.

25 MR. MORAN: But if I have done anything at

1 any point in this trial to offend anyone in the Trial

2 Chamber, you have my apologies. And I thank you very

3 much for the time. I see I've run over my time. I

4 thank you very much for your attention, and I thank you

5 very much for the last 18 months.

6 JUDGE KARIBI-WHYTE: Thank you very much.

7 Try to keep your submissions within professional means,

8 let's not go beyond what should be expected of counsel

9 to say to the Trial Chamber.

10 MR. MORAN: Yes, Your Honour.

11 JUDGE KARIBI-WHYTE: The Trial Chamber will

12 rise now.

13 MS. RESIDOVIC: Your Honour, before you

14 leave, on behalf of all the Defence attorneys, I wish

15 to ask you that after the break, the legal elements of

16 killings, torture and suffering be presented by our

17 colleague Michael Greaves. I did not say that earlier

18 because our colleague was not here in the courtroom,

19 so, I did not want to say something that I shouldn't be

20 saying. And after him, I would present arguments in

21 terms of the command responsibility of Zejnil Delalic.

22 Thank you.

23 JUDGE KARIBI-WHYTE: To keep your arguments

24 reasonably tidy and short, we did this for the fruition

25 of arguments of the accused person. So, even if two of

1 you are presenting it, you should know how to tidy it

2 up and not make it unduly long. The Trial Chamber will

3 now rise.

4 --- Luncheon recess taken at 1.00 p.m.

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1 --- On resuming at 2.38 p.m.

2 MS. BOLER: Your Honours --

3 JUDGE KARIBI-WHYTE: I see two people

4 standing.

5 MS. BOLER: I think --

6 MR. GREAVES: I haven't got a chair.

7 MS. BOLER: I think Michael has allowed me to

8 make a brief address to the Court. At this time, Your

9 Honours, I would like to ask that the Defence of Esad

10 Landzo be allowed to substitute a collected, amended

11 version of final submission and motion for acquittal to

12 replace the one that was filed Friday afternoon.

13 JUDGE KARIBI-WHYTE: Please do.

14 MR. KUZMANOVIC: Your Honour, I apologise,

15 there is one more thing. We accidentally had one

16 protected witness named in our submission, which has

17 been named as confidential. I would like to request

18 permission to substitute the one page that that witness

19 is named on into the registry to substitute for the

20 page that has the protected witness on it. Thank you.

21 JUDGE KARIBI-WHYTE: Thank you very much.

22 Mr. Greaves, I hope you understand the state of making

23 final speeches. If you are sharing it, you decide how

24 you share your speeches.

25 MR. GREAVES: I am hoping to only take five

1 minutes per defendant.

2 JUDGE KARIBI-WHYTE: Thank you very much.

3 MR. GREAVES: I hope none of my learned

4 friends begrudges me my five minutes each.

5 JUDGE KARIBI-WHYTE: Yes.

6 MR. GREAVES: I want to start by putting to

7 you a proposition, which I hope is not controversial in

8 any way. But one which is a matter of common sense.

9 It's this: That any system of criminal law, whether

10 that be a national municipal system of criminal law or

11 a system of international criminal law, requires --

12 demands, that it laws be clear, precise and formulated

13 in readily accessible language. It doesn't always

14 happen, sadly. As anyone who has an had an opportunity

15 to see the English court of appeal engage in some act

16 of semantic dishonesty. But as a proposition, it is a

17 good one in my submission. The purpose of that

18 proposition is this: That the laws may be clearly

19 understood by those to whom the laws apply, be they

20 citizen, states or armies. That implementation of the

21 criminal law does not fail because the laws lack

22 clarity, precision and readily acceptable language.

23 Allowing the guilty to evade justice, or worse, causing

24 the innocent to be unjustly convicted. Thirdly, that

25 those charged with trying and sentencing criminals can

1 do so in the knowledge that the system they are

2 applying, enjoys the confidence of the people.

3 Fourthly, and perhaps as important as any of those,

4 that those whose task it is to advise others on the

5 law, can give clear and ambiguous and proper advice,

6 whether that be to prosecutors or to defendants. The

7 reasons why that proposition is important is because in

8 the criminal courts, in every jurisdiction, there is

9 the power to send people to prison for the rest of

10 their life. In some jurisdictions, there is the power

11 to deprive people of their life. Those are fundamental

12 acts that involve the liberty and life of the subject.

13 For that reason, all systems of criminal law must meet

14 the criteria that I have suggested.

15 If we look at the Geneva Conventions, we find

16 that those are not criminal statutes. The intention in

17 1949 and reinforced in 1977, is that national

18 jurisdictions should implement the philosophy of the

19 Geneva Conventions by passing into their own

20 legislation, suitable and appropriate acts of

21 parliament, designed to meet their own legal system.

22 An example in my jurisdiction, in England and Wales, is

23 the Genocide Act of 1969, which imports into English

24 law, the Geneva Conventions grave breaches scheme and

25 makes it part of our criminal law.

1 The consequences of having as the background

2 to war crimes trials at the Geneva Conventions, is that

3 we as the source from which the statute of the Tribunal

4 is derived, a series of documents which are not

5 intended to be criminal statutes. They don't begin, in

6 my submission, to match the status of what most

7 jurisdictions would recognise as criminal statutes or

8 criminal codes. What we do have is the statute of the

9 Tribunal.

10 I move on now to this point: When it comes

11 to the question of interpretation of that statute and

12 what definitions you should give in our submission to

13 the meanings of words, phrases and language, we urge

14 Your Honours to continue to do as you have done

15 throughout this trial. To interpret language by

16 applying the ordinary and usual meaning to the words,

17 phrases and language that you have to define. We urge

18 you to continue to do that because that is a fair and

19 proper way of dealing with interpretation.

20 I turn now to the bulk of what I have to

21 say. Firstly, I deal with the question of mens rea of

22 murder. At the conclusion of the Prosecution case, we

23 set out a reasonably basis for a proper means of

24 construing the offence of murder. It is a matter of

25 regret that, thus far, the Prosecution have largely

1 failed to address the serious issues that were raised

2 in that submission. By and large what they say is,

3 well, we're right, the Defence are wrong and we don't

4 need to argue the point. In their submissions, they

5 rely entirely on the ICRC commentary to Protocol 1.

6 That, in itself, contains language that is incorrect we

7 submit and we remind you of it. Wilfully, the accused

8 must have acted consciously and with intent i.e., with

9 his mind on the act and its consequences and willing

10 the result, criminal intent or malice of forethought,

11 which is actually an incorrect use of English. It's

12 malice of aforethought, one word. And it then goes in

13 to import into the definition, the concept of

14 recklessness.

15 The problem, we submit, for the Prosecution,

16 lies in the words actually used in the statute. It is

17 those words that Your Honours have to construe. In the

18 English version of the Statute, it is wilful killing.

19 In the French version it is Homicide Intentional.

20 Now, rightly we don't look to national law to define

21 the words and phrases that are part of the criminal law

22 of this Tribunal. Your Honours may think that the

23 definition that in their various submissions that they

24 have made, that the Prosecution have essentially

25 latched on to the classic English definition of the law

1 of murder. Well, they then proceed to muddle it by

2 adding the concept of recklessness.

3 Your Honours, the definition in England is

4 that you can be guilty of murder if you intend to kill

5 or intend to do really serious bodily harm. But it

6 doesn't have as part of its definition, recklessness.

7 But they seem to echo in the phrase that they use, the

8 English definition, which I am sure it may well be that

9 definition still exists in other commonwealth

10 jurisdictions and Your Honours will be more familiar

11 with your own than I.

12 I said a moment ago that Your Honours should

13 approach these kinds of words by using the ordinary and

14 usual meanings of them. That, in my submission, is the

15 starting point from which you should proceed. In the

16 submissions we made at the conclusion of the

17 Prosecution case, we quoted from respectable

18 dictionaries. They clearly point to what the ordinary

19 and usual meaning of the words in the statute in

20 English and French are. Intentional qui est fait

21 expres, avec intention, a dessein. Conscient,

22 delibere, premedite, volontaire, voulu... And perhaps

23 importantly, in connection with the law, droit, Delit

24 intentional, par opposé au delit d'imprudence et au

25 delit contraventionnel. As opposed to a crime of

1 imprudence or negligence or recklessness. We say that

2 that is a clear indication of what the word

3 "intentional" was intended to mean in the

4 legislation. The Oxford English -- that comes from La

5 Grande Française, 1989.

6 The word "wilful," the Oxford English

7 dictionary, the large version thereof. Done on purpose

8 or wittingly, purpose, deliberate, intentional and not

9 accidental or casual. We submit that it is quite clear

10 what those words mean. They are clear and unambiguous

11 definitions. In English and in French. Of course, and

12 I speak only of my own language, to say that intention

13 and recklessness can be the same thing is simply to

14 stand the English language on its head. They are two

15 concepts which both in law and in common sense are

16 mutually exclusive. We say that construing the statute

17 in the manner that I have invited Your Honours to do so

18 can lead to only one conclusion. That the proper

19 definition of wilful murder Homicide intentional is

20 killing with the intent to kill.

21 I turn now to torture. The Prosecution

22 demonstrated in their submissions, the inconsistency of

23 their approach. Because in respect of torture, having

24 said that the ICRC was the definitive law for murder,

25 the ICRC commentaries, when it suits them they ignore

1 the ICRC commentary. On this occasion the ICRC

2 commentary doesn't suit, so they have to go and look

3 for another source. On this occasion, it was the 1984

4 convention which gave them the lead to define what they

5 say torture is. They also quote extensively from

6 Sherry Bassiouni's book. Again, unfortunately, it's

7 somewhat selective because there is another proposition

8 which is put by Mr. Bassiouni at page 549 of his book

9 concerning the definition of torture. Your Honours

10 will forgive me for reading it, but it's important.

11 Additionally Section F of Article 6. Torture is

12 criminalised by the Torture Convention. That's the

13 1984 convention. But the Torture Convention is not

14 included in the statutes listed applicable substantive

15 law. Furthermore, that the acts enumerated in this

16 provision are undefined and the elements of the

17 offences are unstated, raises questions concerning the

18 principles of legality. How the Tribunal should

19 determine the definition and elements of the prohibited

20 acts is left unresolved. The Tribunal could rely on

21 the definition and elements of the corresponding crimes

22 contained in the criminal codes of the previous

23 republics in which the alleged acts occurred.

24 JUDGE KARIBI-WHYTE: You are being implored

25 to slow down.

1 MR. GREAVES: I heard and didn't want to lose

2 the thread of what I was saying.

3 This approach would ensure that the

4 substantive aspects of the principles of legality are

5 upheld. It would be consistent also with Article 22

6 which provides that the Tribunal should impose

7 penalties after considering the laws of the various

8 republics. Alternatively, the tribunal could disregard

9 applicability of domestic law and rely on general

10 principles of law to ascertain the elements of such

11 crimes in the world's major criminal justice systems.

12 This approach, however, would require a substantial

13 comparative criminal law research project. The

14 Tribunal does not have the resources, personnel or time

15 for such an undertaking.

16 Torture and rape are included within the

17 meaning other inhuman acts of Article 6(c) of the IMT

18 Charter. However, the Tribunal must still identify the

19 legal elements of those crimes. As previously

20 indicated, the Tribunal could rely on the applicable

21 criminal laws of the former republics. BiH, Croatia

22 and Serbia has similar substantive criminal laws. The

23 tribunal, therefore, would interpret the stature in a

24 matter that is consistent in substance with the

25 principles of legality. The report of the

1 Secretary-General does not mention the torture

2 convention, which nevertheless should provide the

3 definition for torture under F. So it's his

4 submission, effectively, that the 1984 convention is

5 the appropriate one. But his opinion falls short, we

6 submit, of being settled law. There is support for

7 that.

8 Firstly, Article 1 of the 1984 convention

9 speaks of the definition given there being for the

10 purposes of this convention. It may be that that is a

11 restrictive clause. Secondly, that definition of

12 torture is not unique. There are other definitions

13 given in other jurisdictions.

14 In the case of Ireland versus the United

15 Kingdom, in 1978, before the European Court of Human

16 Rights, that court had to deal with a complaint by the

17 Irish government that the British were torturing Irish

18 terrorists. The conduct complained of was forcing

19 people to stand against walls for long periods of time

20 by their finger tips, causing them to become

21 disorientated, by hooding suspects, again with the

22 intention of disorientating, by subjecting them to

23 white noise pending interrogations, by depriving them

24 of sleep and by depriving them of food and drink. The

25 Court held that that was not torture. I draw that

1 decision to Your Honour's attention. I won't go

2 through it in detail because of the time aspect, but I

3 draw it to your attention. It is important. It

4 contains another definition of torture.

5 Next, in 1985, the year after the 1984

6 convention.

7 JUDGE JAN: Just before you proceed further.

8 MR. GREAVES: Of course.

9 JUDGE JAN: If it said it was not torture,

10 then there must be some definition which the Court must

11 be having in mind.

12 MR. GREAVES: There is. I am not going to

13 read it out because it's a lengthy passage and I am

14 constrained by time. I draw the decision to Your

15 Honours' decision and you can draw upon it leisure and

16 I urge it upon you. Is that helpful?

17 JUDGE JAN: If you say it is not torture,

18 then there must be some definition.

19 MR. GREAVES: They do indeed define what

20 torture is as far as they concerned, but they say that

21 those acts, cumulatively, did not amount to torture.

22 And our submission would be that the acts that were

23 being carried on involving Irish terrorists were far

24 more serious and grave and perhaps the classic thing

25 that people and plainly the Irish government thought of

1 it as torture --

2 JUDGE JAN: I don't understand that. White

3 noise?

4 MR. GREAVES: Yes, when your ear phones play

5 a mushy sounding noise, that is known as white noise

6 and that was the noise that was played to them. And if

7 it's played to you for long periods of time, it's very

8 disorientating, just ask any 15-year-old that goes to

9 the disco. And Judge Odio-Benito would possibly know

10 more about the 1985 Inter-American Convention to

11 prevent and punish torture. That was signed in

12 Colombia in 1985 and that has yet another definition of

13 torture which is similar to, but is certainly not

14 identical with the definition proposed by the

15 Prosecution. And I see her acknowledging that that

16 exists and she will, doubtless, be able to assist your

17 colleagues with that definition. Again, I don't read

18 it. It's long, but I am grateful.

19 So the Prosecution's assertion, that the 1984

20 convention, is settled law, no argument, finished, the

21 end, can be seen in our submission as being really, not

22 accurate.

23 There is yet another definition for the want

24 of, for just the sake of adding one, the UK law,

25 although they're signatory to the 1984 convention, the

1 act which imports that into English law and contains

2 yet another definition of what torture is. It's

3 slightly more elliptical, if I may use that. It's not

4 the best piece of legislation that I have ever seen

5 from the United Kingdom.

6 I turn now quickly to wilfully causing great

7 suffering there are three points. The use of the word

8 wilful in that phrase, we submit that the mens rea that

9 you apply to that should be consistent, indeed the

10 same, as far as possible with any other definition of

11 mens rea that you give to the word wilful. The second

12 thing is we set out in our half-time submissions that

13 the law of this offence lacked proper clarity,

14 precision and accessibility of language. And say for

15 those reasons, it breaches the principal of Nullum

16 crimen sina lege (Latin).

17 If that's not a proper -- if that's not right, the

18 proper test is there must be a wilful act, which either

19 cause great suffering or caused serious injury to

20 health or body. Again, inhumane acts, we again say

21 that we have set out a clear basis for saying that the

22 laws there lack the required clarity, precision and

23 accessibility of language in the half-time

24 submissions. Indeed, the Pictet commentaries

25 themselves plainly agree that this idea is rather

1 difficult to define. And for a set of commentaries

2 defines quite a lot of things, that says a lot. We

3 say, again, there is a violation of the principle of

4 Nullum crimen sina lege (Latin).

5 I conclude with a short word about plunder.

6 When I came last March, March 1997, that is, to work at

7 this court and appear here before Your Honours, I

8 little imagined that I was coming to the detention camp

9 equivalent of shoplifting. Stealing watches and coins

10 is not what plunder is about. It is not a serious

11 grave breach of the Geneva Conventions. Plunder is

12 what Herman Goering did with the art of Eastern

13 Europe. That's what grave breaches are. Or, for

14 example, emptying entire houses of their quality

15 furniture. That's plunder. But stealing a watch and a

16 few coins is not what we were brought and assembled at

17 great expense to try in my submission. The evidence in

18 this case is essentially that was what was stolen. It

19 doesn't meet, by a very long way, those criteria. And

20 we urge that that count in particular, as a matter of

21 law, has no proper place in this Court.

22 I think I have just about done twenty minutes

23 and a bit. And I do apologise if I have gone on too

24 long. Those are our submissions and we urge you to

25 take them carefully into consideration.

1 JUDGE JAN: What definition of torture did

2 you have in mind.

3 MR. GREAVES: We set out in our half-time

4 submission, and I think it's repeated elsewhere, a

5 proposed submission. But, our main submission is that

6 we don't concede that it is the definition authored by

7 the Prosecution. We've set it out at some length in

8 the half-time submission. It's quite long and, again,

9 because of constraints of time, I am not going to, if

10 Your Honour will permit me, repeat it. It's there and

11 available for Your Honours to read again. Is there

12 anything I can assist any of Your Honour's on?

13 JUDGE KARIBI-WHYTE: I think it's

14 sufficient. Can we hear you, Ms. Residovic?

15 MR. GREAVES: Would you think it very rude if

16 I withdraw?

17 JUDGE KARIBI-WHYTE: No, if this is all you

18 can offer.

19 MR. GREAVES: If you gave me lots more time,

20 I'd offer lots more, but you're not going to.

21 JUDGE KARIBI-WHYTE: No. You may proceed,

22 Ms. Residovic.

23 MS. RESIDOVIC: Thank you. Thank you, Your

24 Honour. After hearing the Prosecution case and the

25 Defence case before this Trial Chamber, we hope, Your

1 Honour, that we'll be able to present an assessment of

2 the Defence as to whether the Prosecution has made a

3 case against Mr. Zejnil Delalic, that is that he has

4 committed the acts for which he has been indicted.

5 The task of the honourable judges and the

6 standard that you will certainly apply is that the

7 accused can be found guilty only if there is evidence

8 beyond any reasonable doubt and that standard is well

9 known in all criminal procedures world-wide. If after

10 carefully assessing all the evidence presented you

11 ascertain that the Prosecutor has not done this, that

12 is, has not borne the burden of proof in terms of

13 proving all the key elements of the crimes mentioned in

14 the indictment, then you will certainly have to release

15 the defendant. In our law, as in all other laws, in

16 dubio proraro is an universal principle of criminal

17 law. In the case of Zejnil Delalic, I believe that

18 your task is going to be quite easy. With full

19 confidence in your experience of imminent legal expert

20 and your human experience of lofty judges, I believe

21 you will conscientiously and critically assess all the

22 evidence presented.

23 The only conclusion which you will reach, I

24 believe, is that it is not only that the Prosecutor has

25 proven beyond any reasonable doubt, not a single one of

1 the counts in the indictment, against Zejnil Delalic,

2 but on the contrary it has been established viva voce

3 before this Court through hearing witnesses and on the

4 basis of authentic and reliable documents, it has been

5 ascertained that Zejnil Delalic not at a single point

6 in time in the period mentioned in the indictment did

7 not have a status of a superior in the prison of

8 Celebici, over its staff, guards and other persons who

9 allegedly committed the crimes in the indictment.

10 May I recall the following, Your Honour.

11 Counts 3 and 7 of the indictment, ascertains that Zejnil

12 Delalic coordinated the forces of the Bosnian Muslims

13 and the Bosnian Croats in the territory of Konjic from

14 April 1992 until September 1992 and that he was

15 commander of Tactical Group No. 1 of the Bosinan forces

16 sometime from June to November 1992 and in that

17 capacity he was responsible for the work -- fort he

18 functioning of the Celebici prison and he was, thus, a

19 superior in relation to all the guards in the camp and

20 all other individuals who came into the camp and

21 mistreated the prisoners. I am not going to repeat the

22 counts of the indictment because I know that you are

23 fully aware of them, just as we are. Just one count,

24 count 48, is the one that brings charges against

25 Delalic for the unlawful confinement of civilians in

1 keeping with Article 71(1) of the statute of the

2 International Criminal Tribunal.

3 In its written brief the Defence analysed in

4 detail the legal and factual issues related to the

5 subject matter of the indictment and the evidence

6 presented. Therefore, today I shall briefly only draw

7 your attention to some of these questions, notably

8 those that are related to the status of the accused.

9 A foremost question in terms of establishing

10 responsibility in the sense of Article 7 of the statute

11 of our Tribunal, that is a conditio sine qua non

12 is that the accused person had the status of a superior

13 person at all.

14 What does the Prosecutor say about this? In

15 the Pre-Trial brief of the 24th of February 1997 the

16 Prosecutor took the position presented in the

17 commentary of the ICRC on Protocol I of the Geneva

18 Conventions, according to which the concept of a

19 superior is a broader one and should be viewed within

20 the context of the hierarchy that encompasses the

21 concept of control, too.

22 Today we have heard a broader concept. This

23 concept of a superior person is being extended by the

24 Prosecutor to every person which enjoyed a reputation

25 in a given area and in this way reaches certain

1 positions.

2 This is the same position that was upheld in

3 the introductory remarks of the Prosecutor, notably

4 stating that evidence will show that Delalic had direct

5 control over the perpetrators and their superiors in

6 the Celebici prison, that he had direct control over

7 the staff of the Celebici prison, that Delalic was

8 officially in charge of the prison, that the prison was

9 within the area of his command.

10 The Prosecutor has not proven a single one of

11 these allegations. Aware of the fact that he will not

12 be able to present evidence on the official position of

13 direct control of Delalic in the Celebici prison, the

14 Prosecutor disassociated himself from this by stating

15 the following: No matter what kind of arguments could

16 be drawn on his de jure authority there is no doubt

17 whatsoever that he had defacto responsibility over the

18 Celebici prison. That is what was said today by the

19 Prosecutor in her closing argument.

20 Also, the Prosecutor reminds us of what they

21 said earlier, too; perhaps others shared this

22 authority, too. That is to say persons who delegated

23 this responsibility to Delalic. But the fact is that

24 others are responsible, and that is no defence for

25 Delalic.

1 However, this allegation was not proven by

2 the Prosecutor, either. In respect to Delalic, the

3 Prosecutor insists on an inaccurate and untenable

4 assumption which reads as follows, according to the

5 Prosecutor: Delalic is superior and responsible for

6 the prison of Celebici, regardless of the status he had

7 and what duties he performed in the period from May to

8 November of 1992.

9 That is to say that the Prosecutor believes

10 that by extending the scope of responsibility for

11 Delalic that it is all the same, whether he is an

12 ordinary civilian, a rank in file soldier, a

13 coordinator between the War Presidency and the Defence

14 forces, or whether he is commander of Tactical Group

15 1. Because in each and every one of these statuses,

16 according to the Prosecutor, Delalic is always superior

17 in the Celebici prison.

18 The Prosecutor opted for this assumption

19 precisely because he could not prove that Delalic, as

20 coordinator or as commander of Tactical Group 1, had

21 any formal authority over the prison.

22 So, the Prosecutor himself accepts that

23 neither the coordinator nor the commander of Tactical

24 Group 1 have authority over the prison. But as we

25 heard today, Zejnil Delalic does, irrespective of his

1 official status and authority.

2 According to this thesis, it can be derived

3 that Delalic was in charge of the -- would have been in

4 charge of the prison, even had he not been the

5 coordinator and the commander of Tactical Group 1.

6 Precisely for that reason, through the

7 evidence that he presented, the Prosecutor tried to

8 create the feeling and conviction that Delalic in fact

9 had great power and great personal influence over all

10 institutions in Konjic and all the people around him.

11 I think, Your Honours, that you will agree

12 with me that this is an absolutely inaccurate and

13 unrealistic claim.

14 In the period for which Delalic is indicted,

15 in Konjic there was a War Presidency as the main organ

16 of civilian authority. The War Presidency of Konjic

17 consisted of very influential, authoritative people

18 from Konjic with a high reputation.

19 At the same time there was a municipal

20 headquarters of the Territorial Defence. In addition

21 to the commander, there were some 40 officers in it.

22 Also there was a municipal staff of the HVO with a

23 fully autonomous structure.

24 In the critical period there was also a joint

25 command of the Territorial Defence and the HVO with a

1 developed system of command and with at least 30

2 officers on it who comprised this command. In Konjic

3 at this time there was also a police MUP which was

4 subordinated to the ministry in Sarajevo.

5 So, as you have had ample opportunity to see

6 and hear during this trial, in the institutions of

7 civilian and military government in Konjic there was

8 over 100 persons who held certain posts and authority

9 and also had a personal reputation and dignity and a

10 feeling of responsibility.

11 In this area at that time there were also the

12 representatives of the chief command, among them four

13 generals, too; General Divjak, General Kadic, General

14 Pasalic and General Polutak. Before this court three

15 of these generals have testified. The president of the

16 War Presidency, Dr. Hadzihuseinovic testified, as well,

17 and the representative of the republican staff

18 Brigadier Dzembasovic (Phoen).

19 It is quite clear to everyone who heard and

20 saw these people, that these are credible witnesses,

21 that these are educated, able, decisive persons.

22 Therefore, it is untenable to assume that Delalic had

23 power over them and that they were subordinated to

24 Delalic.

25 These people held their civilian and military

1 posts even before Delalic came to Konjic, and they

2 continued to discharge their duties after Delalic left,

3 too.

4 May we recall the following: 20 years before

5 the war Delalic lived outside of Konjic. He spent only

6 eight months during the year of 1992 in Konjic.

7 Therefore, it is not only unbelievable, but it is also

8 impossible that after 20 years a person comes back to a

9 town and that within a month's time he establishes a

10 personal power of his own in that town and his own

11 influence over hundreds of educated authoritative

12 people with a high reputation, and if you wish, people

13 who also have their vanity, and who are in high

14 positions of civilian and military power.

15 It would be incredible to believe Zejnil

16 Delalic or anyone else who had the command

17 responsibility of a superior would be hiding behind

18 different names; but we heard from the commander of

19 Desna Obala at that time it was an honour to be

20 a commander.

21 The Prosecution has presented its case, but

22 did not manage to provide arguments, In paragraph 4.1119

23 of their final brief they themselves almost acknowledge that

24 fact. I quote " Although Delalic’s control and responsibility

1 , commander is not acceptable and even if the

2 arguments presented by the Defence prove this, it is

3 certain that he had sufficient authority in the prison,

4 including authority to classify prisoners and release

5 them.

6 We have heard about many of these things

7 before and we have said in detail what we had to say

8 about this in our own written submission, but I shall

9 say only briefly upon what we think the Prosecution

10 bases its case on.

11 First of all, these are several witness

12 statements by people who did not know enough personally

13 about Delalic and what kind of authority he had.

14 Secondly, on the basis of witness statements

15 by persons who cannot be trusted because of their

16 personal status, and because they gave contradictory

17 statements, and because of their attitude towards

18 Delalic. So, these statements cannot have probative

19 value.

20 Thirdly, on the basis of the testimony of an

21 expert witness who before this court admitted that he

22 did not do any research on the situation in Konjic

23 itself and that he bases his knowledge about this

24 situation only on the documents that were made

25 accessible to him by the Prosecution.

1 Fourthly, on inauthentic and unreliable

2 documents, which because of that and because of the

3 inaccurate facts they contained, cannot have any

4 probative value.

5 I shall say something very briefly about this

6 particular evidence. First of all, the witnesses of

7 the Prosecution who were over a certain period of time

8 prisoners in Celebici do not have any personal

9 knowledge of the duties and responsibilities of Zejnil

10 Delalic.

11 Of course, Your Honours, on the basis of the

12 testimony of these persons, you cannot ascertain what

13 kind of authority and status Zejnil Delalic had.

14 In contrast, numerous witnesses of the

15 Defence, members of the civilian and military

16 structures of Konjic, credible witnesses that are

17 supported by numerous documents that they often

18 presented themselves, are telling proof of his duties

19 and authorities.

20 Secondly, Witness D is one of the important

21 witnesses upon which the Prosecutor proves his case;

22 that is that Delalic had the status of a superior.

23 This witness is contradictory in his own right and is

24 not credible, and therefore, cannot serve as a basis

25 for ascertaining any kind of position of Zejnil

1 Delalic.

2 His testimony has been brought into question

3 by the statements made by many witnesses and authentic

4 documents. If you remember the statement made by

5 Witness D before this court, you will remember how

6 greatly contradictory his own statement is.

7 Actually, when speaking before you he did not

8 even know when he came to Konjic and when he allegedly

9 visited the house of Zejnil Delalic, and he gave

10 several different versions of these events. He did not

11 know when he started working in the military

12 investigative commission.

13 He was contradictory to such an extent on the

14 allegedly held meeting in Celebici attended by Zejnil

15 Delalic that there is reasonable doubt as to, it can be

16 reasonably suspected as to whether such a meeting was

17 ever held.

18 Also, there is contradiction in terms of his

19 testimony on writing the report on the conditions in

20 the Celebici prison, in terms of the substance of this

21 report and who this report was sent to.

22 First he says that Delalic made these

23 categories, and then after that he doesn't know who

24 made these categories at all.

25 He did not know anything about the document

1 dated the 1st of June, which he allegedly got at the

2 meeting with Delalic; and then during the course of his

3 testimony about this same document and his reception,

4 he gave a few different versions.

5 What is certain is, which was proven by this

6 witness before you, that he is from the HVO Mostar,

7 that he was recommended and that he was in the HVO

8 Konjic; that he reported at HVO Konjic and offered his

9 services; that he was told to report to Goran Lokas,

10 the president of the military investigative commission;

11 that for the same reasons he was called by Miroslav

12 Stenek and he was told to contact the HVO; that after

13 this he was to report to Ivan Azinovic, the president

14 of the HVO, which he subsequently did. And that he is

15 quite sure that at that time it was only the HVO who

16 could appoint Croats to certain duties.

17 For this reason, it is quite, it cannot be

18 understood that the Prosecutor can maintain and

19 continue to maintain that Zejnil Delalic appointed

20 Witness D to a particular appointment in the military

21 investigative commission and explained to him the work

22 he would have to do in the presence of the most

23 responsible people of the HVO, Dinko Zebic, the

24 commander of the HVO, and Ivan Azinovic the president

25 of the HVO.

1 Attempting to save the credibility of this

2 witness in his written response dating back to March

3 1998, the Prosecutor attempts to convince us that the

4 witness only has trouble in remembering dates, and he

5 suggests that perhaps the document of the 1st of June

6 sent to Ivan Azinovic was in fact given to Witness D

7 either on occasion of the first meeting in the house of

8 Zejnil Delalic forgetting in that regard that Witness

9 D, according to his own testimony, went to that house

10 precisely with Ivan Azinovic. And therefore, there

11 would be no point in Zejnil Delalic writing a message

12 for Azinovic in his presence.

13 Or perhaps that this message was given to him

14 when he came to take over his uniform, forgetting the

15 fact that Witness D also gave contradictory testimony

16 and said Zejnil Delalic at their first meeting promised

17 him a uniform but the uniform was issued to him by

18 somebody else and he signed for it.

19 Witness D is not certain whether any document

20 of this kind was given to him by Zejnil Delalic, and as

21 he described earlier, circumstances whereby he received

22 the document during the meeting with Delalic in

23 Celebici, brings into question the meeting itself and

24 the competency of Delalic upon which the Prosecution

25 bases its allegations.

1 What we know, or what we were able to become

2 convinced in through this witness's testimony, is that

3 he reported for duty at the HVO in Konjic; that his

4 alleged knowledge on what had taken place in the

5 Celebici camp was told to Ivan Azinovic, the

6 president of the HVO and other responsible individuals

7 of the HVO; that Ivan Azinovic allegedly told him to

8 cease performing his duty, which he did immediately.

9 That a report, according to his personal knowledge, was

10 sent exclusively to the HVO, and before you, Your

11 Honours, he stated that he had never seen an original

12 copy, that he signed a copy, and that he doesn't know

13 to whom that report was sent or whether it was sent to

14 anybody else.

15 The credibility of every witness, and this

16 witness as well, is another important question that

17 this Trial Chamber will have to deliberate. And I'm

18 sure the question will arise as to why Witness D would

19 have to accuse Delalic.

20 Perhaps it would be well for me to remind you

21 of the testimony of Regis Abribat, who testified before

22 this Trial Chamber. He said that during investigations

23 on the Celebici case no criminal report existed against

24 Zejnil Delalic on the part of any state or

25 international organisation, and that their

1 investigation led to a reasonable doubt as to Zejnil

2 Delalic's crimes.

3 The statements, according to which the

4 indictment was confirmed, were based on the testimony

5 of Ivan Azinovic and Mladen Zebic, who did not appear

6 before this Trial Chamber.

7 From the testimony of Dr. Ahmed Jusufbegovic

8 and Dzevad Pasic we were able to learn that as early on

9 as 1992 they were the protagonists of a campaign

10 against Zejnil Delalic asserting he was a Chetnik and a

11 traitor. Ivan Azinovic was head of Witness D, who

12 belongs to the same circle of individuals.

13 In this connection, and in connection with

14 this witness, let me remind you of the testimony made

15 by Ziad Salihamidzic, who knew Witness D since before

16 the war as a worker in the state security institution.

17 In 1992 Witness D asked Salihamidzic allegedly

18 compromising data on General Jovo Divjak and Zejnil

19 Delalic.

20 Evidence placed before this Trial Chamber

21 showed that because of allegations of this kind Jovo

22 Divjak was arrested, and a relentless campaign was

23 waged against Zejnil Delalic. [redacted]

24 [redacted]

25 [redacted]

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [redacted]

13 [redacted]

14 [redacted]

15 [redacted]

16 [redacted]

17 [redacted]

18 [redacted]

19 [redacted]

20 You will take into account all these facts

21 put before you when you come to your deliberations as

22 to the credibility of the witness. I am fully aware of

23 this.

24 However, independently of the reasons put

25 forward as to the credibility of this witness, it is

1 far more important that other witnesses which we have

2 also heard before this Trial Chamber, members of the

3 staff and War Presidency and internal affairs organs,

5 adamant in their assertion that Zejnil Delalic had no

6 authorisation to appoint members of the military

7 investigative committee and that he was not superior to

8 it, that he could not appoint Croats to any office

9 whatsoever, as he could not appoint Witness D; that he

10 had no authorisation for the detention, imprisonment

11 and keeping individuals in prison, nor did he have

12 authorisation to free them.

13 The statements of these credible witnesses

14 bring into doubt the statements made by Witness D on

15 all the relevant facts.

16 The majority of the evidence upon which the

17 Prosecutor bases his views as regards Zejnil Delalic's

18 responsibilities in the concluding brief are connected

19 to video-tapes and documents which were found in the

20 INDA-BAU company in Vienna.

21 Of specific importance in assessing this

22 evidence is the decision made by Your Honours in this

23 Trial Chamber in connection with the weight to be

24 attached to the so-called Vienna documents.

25 In that respect, I think that it is a good

1 idea for us to recall the following paragraph; trials

2 between international courts are led by professional

3 judges, which according to their experience and

4 knowledge are able to evaluate every piece of evidence

5 presented and to assess its probative value.

6 As has been stated, it is implicitly provided

7 by the rules that the Trial Chamber should give all

8 attention to the reliability evidence when deciding

9 upon its admissibility.

10 However, this kind of terminology could leave

11 space for a lack of understanding or different

12 interpretations that in this stage of the proceedings,

13 the origins and authorship of the evidence is

14 presented. And therefore, the Trial Chamber

15 would like to make it clear that the acceptance of

16 documents as evidence does not mean that the statements

17 will necessarily show an exact explanation of the facts

18 as they stand.

19 Factors such as authenticity and proof of

20 authorship will have a great importance when the Trial

21 Chamber comes to assess each of the individual pieces

22 of evidence submitted.

23 In addition to that, Your Honours, the weight

24 of every piece of evidence whose authors did not appear

25 as witnesses will be dealt with if they did not appear

1 in the cross-examination. The Defence considers that

2 this stand presented in the decision mentioned should

3 be a standard in appraising evidence in this hearing,

4 particularly those with regard to Zejnil Delalic,

5 whether we are talking about Defence evidence or

6 Prosecution evidence. So that, we could then go to

7 archives to determine the authenticity of the evidence

8 if we were to determine somebody's responsibility.

9 We have spoken a great deal about the Vienna

10 documents in written arguments.

11 Relying on Dr. Gow's expert testimony, the

12 Prosecution says that there was a vacuum in Konjic and

13 relations were not regulated, and because the district

14 headquarters in links with Sarajevo, that Konjic had a

15 great degree of autonomy, and that in a situation of

16 this kind Zejnil Delalic, according to his personal

17 ability and political influence, had de facto authority

18 and authorisations in the municipality.

19 These assertions are without basis in the evidence provided.

20 We heard the First and Seventh commander of the municipal headquarters,

21 members of staff, and the joint commanands together with the chiefs of

22 staff, and we also heard the commanders and Sadic Dzumhur, the deputy of

23 the head of MUP, Brigadier Dzambasovic and Vasogic, and Dzambasovic who on

24 behalf of the supreme command was located in Konjic at

25 that time.

1 For Zejnil Delalic to be in a position of

2 superiority, he must have been a member of one civilian

3 or military authority. All the witnesses that we

4 listened to said that Zejnil, as a coordinator, was not

5 a member of either a civilian authority or military

6 authorities. Nor did those authorities give him any

7 competencies over the prison itself.

8 Zejnil Delalic had no authorisation over the

9 prison, either when he was commander of the tactical

10 group or at any other time. The Prosecutor states that

11 in William Lists trials in the United States of America

12 and so forth, he tries to make us realise that Zejnil

13 Delalic has the authorisation of a regional commander.

14 However, it is precisely this decision that

15 determines that the question of subordination of the

16 units for criminal liability becomes important in the

17 case when the competency of the commander is tactical.

18 And everything showed that the authorisation of Zejnil

19 Delalic was exclusively tactical.

20 The witnesses from Jablanica, Prozor, Hadzici, Konjic

21 and elsewhere clearly show that Zejnil Delalic, as commander of the

22 tactical group was never in superiority over the

23 formations of the armed forces of the municipality.

24 And for this reason, the assertion of the Prosecution

25 which relies on the appointment of the 27th, whereas

1 Zejnil took over his duties on the 30th, is absolutely

2 refuted by all the testimony that ensued.

3 The errors in appointment, or placing it at

4 actor, came eight days after that.

5 The Prosecutor insists on certain parts of an

6 order dating to the 24th and 28^th of August, and stating that,

7 maintaining that Zejnil Delalic was superior to the

8 commander of the municipal headquarters, Esad Ramic,

9 and the Prosecutor said so today.

10 The Prosecutors brought under subpoena Esad

12 tell the Prosecutor that Zejnil Delalic was superior in

14 Prosecutor would have brought forward this individual. Esad Ramic

15 was not able to confirm this. Had he come into this

16 courtroom in October, this would have been exculpatory

17 importance.

18 Today the Prosecutor tells us that he has no

19 direct proof, but if we link up some small elements of

20 proof, that case can be built up against Zejnil

21 Delalic. In this way, he has tried to build up his

22 knowledge about the events that took place, because he

23 did not succeed in proving his authority over the

24 prison and the prison staff.

25 All the facts prove that Zejnil Delalic, up

1 to the 18th of May, was a civilian, and that from the

2 18th of May to the 27th of June was the coordinator as

3 a civilian between the war time presidency and the

4 defence forces without any rank and that as commander

5 of Tactical Group 1, from the 30th of July, had no

6 competencies over the prison, the staff and the wardens

7 or the guards in that prison. Linking up individual

8 parts to show that Zejnil Delalic knows something of

9 the events that took place in the prison, the

10 Prosecutor in 0.411, indicates some of that proof that

11 comes under the knowledge of Zejnil Delalic. The

12 Defence maintains that Zejnil Delalic did not know and

13 did not have reason to know what was going on and that

14 the crimes in Celebici had taken place and been

15 committed. As the Prosecution cannot prove this in the

16 count mentioned, the Prosecution maintains that witness

17 D for many months after leaving Celebici, met

18 Mrs. Jasna Dzumhur, president of the commission, and

19 that on that occasion, she said I informed Delalic

20 about everything and nothing more.

21 Therefore, Witness D and Jasna never stated what they

22 discussed, in fact. Because everything means nothing,

23 is the same as nothing. And, at the same time, nobody

24 said what Jasna Dzumhur knows about events in Celebici.

25 Let's us remind you that Witness D did not know a lot

1 of this. He knew of the death of Mrkajic, that he had

2 died of diabetes. If we look at the quality of these

3 assertions and allegations --

4 JUDGE KARIBI-WHYTE: Make sure that you are

5 keeping your eye to the time.

6 MS. RESIDOVIC: Yes.

7 Your Honours, I have been informed that I

8 have five minutes and I shall be winding up within

9 those five minutes. If that information is incorrect,

10 then I have overstepped my time limit and I apologise.

11 JUDGE KARIBI-WHYTE: I think you haven't, but

12 conclude your address.

13 MS. RESIDOVIC: Thank you. Therefore, the

14 alleged knowledge on the part of third persons and

15 statements to journalists at Television Sarajevo, as

16 his knowledge on the events in Celebici, the general

17 knowledge on the crimes which was not confirmed by

18 interrogations of any of the witnesses, these

19 individual portions on the basis of which the

20 Prosecutor wishes to show that Zejnil Delalic could

21 have certain responsibilities and could have had

22 certain knowledge.

23 Your Honours, as the basic element for

24 establishing responsibility of a superior via a brief

25 analysis of this and other evidence provided by us has

1 not ascertained beyond any reasonable doubt. On the

2 contrary, it has asserted that Zejnil Delalic, neither

3 as a coordinator nor as commander of the said Tactical

4 Group belonged to any of the organs or structures which

5 had competency and authority over the prison. On the

6 other hand, these bodies and structures did not give

7 Zejnil Delalic any authorisation of this kind.

8 Therefore, no prerequisites exist for establishing

9 responsibility on the basis of Article 7(3), Zejnil

10 Delalic should be acquitted of all the charges as

11 brought against him and the counts in the indictment.

12 In the written arguments and in our witness

13 brief, we expound the other elements. But, for

14 purposes of caution, questions of knowledge, I think

15 that these arguments are sufficient to ascertain that

16 Zejnil did not have any reasonable possibility of the

17 criminals. The last murder was committed at the end of

18 July, whereas Zejnil Delalic had no knowledge of the

19 perpetration of any of the crimes listed in the

20 indictment. The last thing that I wish to say is that

21 in our written brief, we set out in detail

22 responsibility according to Article 7(1), Zejnil

23 Delalic was not, nor did personally detained or

24 imprisoned or maintained in confinement any civilians.

25 In that sense, the Prosecutor has not provided any

1 evidence and has not proved beyond any shadow of doubt,

2 and as he did not do so, I propose that Zejnil Delalic

3 be acquitted of all the counts in the indictment and

4 charges brought against him. Thank you.

5 JUDGE KARIBI-WHYTE: Thank you very much.

6 May we now hear the address of counsel for Mr. Mucic.

7 MR. KUZMANOVIC: Thank you, Your Honours.

8 Your Honours, esteemed counsel, this trial began over

9 18 months ago. During that time many faces have

10 changed on both sides of counsel table. On behalf of

11 our client, Mr. Mucic, I thank all of you for your

12 patience, for your time and the seriousness with which

13 you have taken your duties as honoured judges in this

14 Tribunal. We also thank the support staff, the

15 registry, the victim witnesses unit, the interpreters

16 for dealing with us, our problems and the case. They

17 should all be publicly acknowledged. Without them,

18 none of this would go.

19 I would also like to -- having to keep in

20 mind the final submissions, one of my law professors

21 once told me when it came to examinations, I read them

22 I don't weigh them. So keep that in mind when meeting

23 our final submission. It is, roughly, a hundred

24 pages.

25 A large number of witnesses have given

1 testimony in this case. There have been hundreds of

2 documents submitted into evidence. Mr. Moran had

3 mentioned at one point in time during the trial that

4 Judge Jan promised counsel that everyone would be home

5 by Christmas. Unfortunately, it was never confirmed in

6 what year that promise could be fulfilled.

7 Nonetheless, all good things must come to an end. We

8 are now at the end.

9 There are two overriding issues we ask you to

10 keep in your mind throughout these closings. When you

11 deliberate on issues of fact and on issues of law, the

12 burden of proof and witness credibility. With respect

13 to the former, Mr. Mucic submits that the Prosecution,

14 despite attempts from all angles, has failed to prove

15 beyond a reasonable doubt that Mr. Mucic had command

16 authority over Celebici and all the things that flow

17 from that authority.

18 With respect to the later, Mr. Mucic submits

19 that the credibility of the witnesses upon whom the

20 Prosecution relies the most in their case against him,

21 Witness D and co-accused, Mr. Esad Landzo, to name but

22 two, lack credibility. Later in this closing, I will

23 demonstrate how this credibility is lacking.

24 The Prosecution in its closing statement said

25 that this is a case of the accused absolving himself of

1 responsibility. We strongly disagree. The real issue

2 is, what is that responsibility? Is it defined? Does

3 it have any parameters? What is a commander in

4 Celebici? Inherent in attempting to prove that a

5 commander has imputed criminal responsibility as having

6 command. In this case, after proof of command, must

7 come proof of knowledge of unlawful subordinate conduct

8 by commander. This must then be followed by proof of

9 power to deter, investigate and punish unlawful

10 conduct, not based on a commander's orders. We submit

11 that not one witness put forth by the Prosecution has

12 given evidence beyond a reasonable doubt to any of

13 those proofs and parameters. Essentially, the elements

14 of command responsibility. Command authority cannot

15 come from thin air.

16 The Prosecution's position is that Mr. Mucic

17 was the commander because people have said, even second

18 and third hand that he was the commander. That begs

19 the question, what is the commander? There is

20 certainly a reasonable doubt on who was the commander.

21 The Court must be aware of the uncertainty as to who

22 was, in fact, the commander or administrator or warden,

23 whatever term is used of Celebici in May, June and July

24 1992. The Court itself through the Honourable Judge

25 Karibi-Whyte asked this question of a Defence witness,

1 Mr. Sadik Dzumhur and I'll quote it:

2 "QUESTION: Do you, by the way, know the

3 person who was in charge of the persons in Celebici?

4 Who was the head at that time?

5 "ANSWER: What period of time?

6 "QUESTION: Up to June 15, 1992, once

7 perhaps you ceased to go there.

8 "ANSWER: Until June the 15th, I know

9 that a MUP unit was accommodated in Celebici and that

10 heading that unit was Rale Musinovic.

11 "QUESTION: And you know that the MUP

12 was in charge of the prisoners? They were looking

13 after the prisoners detained there?

14 "ANSWER: In that period, yes."

15 There is evidence in the case that suggest a

16 number of other possibilities. The first being that

17 Rale Musinovic was the commander for at least part of

18 that time. There is no evidence that Mr. Mucic was

19 member of the MUP. Dzevad Alibasic is another

20 candidate. Witness D is one as well. Similarly, it is

21 unclear which authority controlled the detainee section

22 of the camp at certain times in 1992. There are

23 several possibilities. MUP, HVO, TO or a combination

24 of all or some of these. None of the lines are clear,

25 all of the lines are blurred. And none has been put in

1 focus by the Prosecution's magnifying glass. It has

2 never been demonstrated where the ultimate authority

3 lay and from whom any person in Celebici derived their

4 authority. In these circumstances, it is not possible

5 to say what authority Mr. Mucic had and how Mr. Mucic

6 could exercise that authority beyond a reasonable

7 doubt.

8 First, many military, paramilitary and police

9 units plainly had easy and frequent access to the camp

10 for a multitude reasons. Defence witness Dzumur and

11 defence witness Emir Dzajic clearly reveal the variety

12 of units present there and a number of persons who are

13 candidates for command of the personnel there through

14 July 1992. Mr. Mucic had no rank, belonged in no

15 police, military or paramilitary organisation. I don't

16 think there is a dispute there.

17 Second, there is consistent evidence that

18 other units who plainly had nothing to do with

19 Mr. Mucic would come into the camp and occasionally

20 wreak havoc. The MUP units led by the likes of Jasmin

21 Guska, who was the head of the unit, and Sefko Mucici,

22 the deputy commander come to mind. Given the ability

23 of these units to enter Celebici freely, it has not

24 been demonstrated how anyone, much less Mr. Mucic, had

25 the power to control these entities or entries or to

1 investigate and punish such units. Bearing in mind

2 that the later unit mentioned was itself a military

3 police unit. If the military police itself perpetrated

4 crimes, to whom was Mr. Mucic or anyone, for that

5 matter, expected to make a report of their crimes?

6 Given these circumstances, a person such as

7 Mr. Mucic who was prepared, and there is evidence to

8 take risks of helping Bosnian Serbs to escape to Bosnia

9 Serb control territory, must inevitably fall back on

10 his own personal, moral authority. In the kiosk that

11 was Konjic, Celebici and Bosnia-Herzegovina itself at

12 the time. It was the power of his personality and not

13 any unproven power invested by him by someone the

14 Prosecution has not put on the witness stand that

15 carried the day.

16 At the end of July, 1992, the situation in

17 Celebici turned around dramatically. The bulk of the

18 serious incidents alleged by the Bosnian/Serb witnesses

19 happened in May, June or July. By contrast, although

20 there are some allegations of crimes after the end of

21 July, the general picture of the camp was of an

22 escalating program of transfers to Musala and other

23 outright releases.

24 Now, there is no dispute that Mr. Mucic was

25 in the camp before the end of July, but such presence

1 in and of itself does not prove or indicate that he was

2 at that given moment, the commander or the

3 administrator or the warden or whatever kind of term

4 you want to put to Mr. Mucic. It has already been

5 pointed out that entry into the camp by those that had

6 no function there was relatively easy to achieve. His

7 presence there may well have been either in a personal

8 capacity or in the exercise of some other function,

9 unconnected with the command or administrative

10 hierarchy of the camp. By the way, the Prosecution has

11 failed to disprove that his position was in either of

12 those capacities.

13 In the absence of written documentation of

14 appointment to the position of commander or

15 administrator or warden, it cannot be proved at what

16 date he took over such a position and what powers and

17 duties emanated from Mr. Mucic by such an appointment.

18 The burden of proof, which, as the Court will

19 recall, was the first of two themes I asked the Court

20 to keep in mind at the beginning of the closing

21 argument. It revolves around the phrase, beyond a

22 reasonable doubt. This phrase is codified in the rules

23 of the tribunal, specifically Rule 87(a). And I quote,

24 "A finding of guilt may be reached only when a

25 majority of the Trial Chamber is satisfied that guilt

1 has been proven beyond a reasonable doubt."

2 One American court in Massachusetts in 1850

3 in what is now known as the traditional definition of

4 this phrase in American jurisprudence, defined it as

5 "That state of the case, which, after the entire

6 comparison and consideration of all the evidence,

7 leaves the minds of jurors in that condition that they

8 cannot say they feel an abiding conviction to a moral

9 certainty and the truth of the charge."

10 THE INTERPRETER: Please slow down.

11 MR. KUZMANOVIC: Mr. Mucic submits that after

12 the entire comparison and consideration of all the

13 evidence in this case, that this honourable Tribunal

14 cannot, to paraphrase that case, feel an abiding

15 conviction to a moral certainty of the truth of the

16 charges in the indictment against Mr. Mucic.

17 The second issue I ask the Court to keep in

18 mind is the issue of credibility of witnesses. The

19 Prosecution in their final written submissions advance

20 their case on the basis that each and every one of

21 their witnesses was telling the truth at all times and

22 that none of their credibility was impeached. At best,

23 we think such an approach is misleading. Mr. Moran

24 pointed out too numerous examples, which I will not

25 cover again, of how some witnesses were to be

1 hopelessly untruthful. Mr. Vukalo was one example.

2 Another example was the Witness T, Mrs. Cecez's,

3 digression. There are numerous other examples of

4 witnesses who were properly impeached by similar means

5 or in other ways.

6 This trial has particular significance in the

7 context of various conflict in the former Yugoslavia.

8 One which was established by the prosecution itself

9 when settling this indictment and is one which creates

10 a positive incentive for untruthful evidence to be

11 given. On March 22nd of 1996 the ICTY announced the

12 first indictment of four alleged perpetrators of crimes

13 against Bosnian Serb victims. Whether it was intended

14 or not, this emphasis by the OTP, "On the first

15 indictment dealing with Bosnian Serbs," immediately

16 made it a case for political significance for the

17 Bosnian Serbs and for the Serbs. Until that time, the

18 subject of the indictments have been largely, if not

19 exclusively, Serbs or Bosnian Serbs.

20 In this propaganda war which ensued, it was

21 plainly important for there to be presented a picture

22 of atrocities against Bosnian/Serbs or Serbs to counter

23 or deflect the impression that only war criminals were

24 from such a background. It is evident that the

25 prosecution had to rely on a Serb refugee

1 organisation to put some of its case together as well.

2 In assessing the credibility of witnesses, we

3 submit that the Trial Chamber should at all times be

4 alert to this fact and bear in mind the significant

5 degree of involvement in this case of that Serb

6 refugee organisation. Their view of the world was

7 clearly demonstrated by the medical notes kept by

8 Witness O, a prominent member of that association, who

9 with frequent references to examining Bosnian Serbs,

10 who had been in an Ustasha camp, clearly reveals the

11 agenda that was being pursued.

12 Mr. Moran mentioned the old axiom truth is

13 the first causality of war. Given the opportunity

14 incentive that the trial presents to Bosnian Serb or

15 Serb elements to influence or described on one occasion

16 as "our witnesses," was during Witness O's TV interview

17 with a Serb TV station in June of 1997. Evidence of

18 "our witnesses" has to be approached with even more

19 care than is usual in a situation such as this.

20 The issue of credibility also arises in

21 relation to the co-accused, Esad Landzo. Two points

22 here: Point one, it has been quite clearly

23 demonstrated that he is a witness who is incapable of

24 being treated as a credible witness. It is quite

25 obvious that he is a person who may lie at any time and

1 who may, if he considers that such lies would help to

2 save his skin, do so. He has claimed that he was

3 prepared to lie at the suggestion of his first counsel,

4 Mr. Brackovic, who allegedly advised him to blame

5 Mr. Mucic because Mr. Mucic was a Bosnian Croat and not

6 a Bosnian Muslim. He has clearly told lies to those

7 who have been investigating events at Celebici. He has

8 now made allegations against both Mr. Delic and

9 Mr. Mucic about their alleged influence over him while

10 at Celebici. We believe that he does not have

11 credibility and that his evidence should be

12 disregarded.

13 Point two --

14 JUDGE KARIBI-WHYTE: We may have a break at

15 this stage and resume at 4.30.

16 MR. KUZMANOVIC: Certainly, Your Honour.

17 --- Recess taken at 4.00 p.m.

18 --- On resuming at 4.35 p.m.

19 JUDGE KARIBI-WHYTE: You may proceed.

20 MR. KUZMANOVIC: Thank you, Your Honour. As

21 you recall, before the break there were two questions I

22 wanted to mention with respect to Mr. Landzo's

23 testimony on credibility; first point being

24 Mr. Landzo's voracity.

25 Point two is this: More curious and quite

1 puzzling is that the Prosecution in their final written

2 submission seeks to invite the Trial Chamber to rely

3 upon Mr. Landzo as a witness of the truth. Later in

4 the same document they seek to impeach him as witness

5 whose evidence is not credible. The Prosecution should

6 not be allowed to have it both ways, either he is

7 credible or he isn't.

8 And it's closing submission, written

9 submission, the Prosecution referred to the Pohl case

10 when speaking of Mr. Mucic. Karl Mummenthey, as if

11 drawing a comparison between him and the crimes he

12 committed and Mr. Mucic. That case concerned those who

13 had had a part in the management of concentration camps

14 and slave labour under the Nazi administration in

15 Germany.

16 There is a huge distinction between that

17 case, a case where the defendants knowingly set out to

18 participate in the Nazi programme of extermination and

19 slavery, rather than the case of Celebici, which was

20 turned from a military supply depot into an ad hoc

21 detention facility on short notice under all the

22 exigencies and the onset of war in the territory of

23 Bosnia and Herzegovina.

24 We believe this is a fairly gratuitous

25 reference which has misjudged the role and nature of

1 Mr. Mucic and the essential characteristics of the

2 camp. As much as the Prosecutor wants to convict

3 Mr. Mucic, we believe this comparison is wrong. We see

4 no more about this attempt to characterise Mr. Mucic as

5 an evil man, as quoted in the brief, other than it is

6 completely inappropriate.

7 There is, of course, quite a different side

8 to Mr. Mucic, and it's worth remembering some of the

9 observations made by witnesses who testified here,

10 Mr. Golubovic being one, who have accurately assessed

11 Mr. Mucic as a human being.

12 On page 2197 of the transcript the question

13 was put to Mr. Golubovic, "Do you remember saying this

14 to the OTP, quote, if at least 20 per cent of people of

15 Bosnia were like Mucic, there would have been no war?"

16 End quote.

17 "Answer: I remember that. That is what I

18 said.

19 "Question: That is a fair remark, is it not,

20 Mr. Golubovic?

21 "Answer: Yes, it is, I think that still.

22 This man was a Prosecution witness put

23 forward by the Prosecution as someone upon whom you

24 could rely. In considering the man, Mr. Mucic, it is

25 better to look at the evidence about him rather than

1 gratuitous remarks which compare him with one of the

2 notorious Nazi war criminals tried at Nuremberg at the

3 end of the second World War.

4 Also in the words of Nedeljko Draganic

5 (Phoen) at 1694 of the transcript: "What you told in

6 the investigators was this, that Pavo Mucic enjoyed a

7 good reputation in the community as a fair and good

8 man. That is in your statement, that is what you were

9 telling the investigators in October 1995. Do you

10 accept that?"

11 "Answer: Yes, I said that.

12 And later, on 1701:

13 "Question: It is for these reasons that we

14 have been discussing just now that you have a good

15 reason to thank Mr. Mucic.

16 "Answer: Yes.

17 "Question: And to be grateful to him for

18 having, as you acknowledged, saved the life of not just

19 yourself, but in fact your family.

20 "Answer: Yes."

21 This reputation for helping the Bosnian

22 Serbs, in addition to evidence of him inhibiting

23 activities, must be viewed against the background of

24 evidence of Witness D on pages 5408 through 5410 of the

25 transcript. I think this is very significant, Your

1 Honours, with respect to Witness D.

2 The question was posed to him: "Can you help

3 us? You were aware of the existence of representatives

4 of international bodies in the Konjic area, were you,

5 at the time this was taking place?"

6 "Answer: UNHCR was definitely there among

7 the international organisations. I don't know where

8 their premises were. The international Red Cross, I

9 don't know if they were in Konjic.

10 "Question: Did you make any attempt to

11 bring your concerns about Celebici camp to their

12 attention?

13 "Answer: I did not try to do that, and

14 frankly, I didn't even know where to go. But I wasn't

15 thinking of that. I was thinking about what we were

16 doing and what we should be doing. Unfortunately, I

17 have to say that I did not say everything that I could

18 have done, speaking from where I speak now, today. You

19 know afterwards, you see that you didn't do everything

20 that you could have done at the time, unfortunately.

21 "Question: Was one of your concerns if you

22 had been seen to do that, to report matters to

23 international bodies, that would have been seen as

24 helping Chetniks?

25 "Answer: You asked a very good question.

1 That speaks of the situation that I described before we

2 had the break for lunch.

3 "Question: To be perceived as helping

4 Chetniks, you have told us, would be a dangerous thing

5 for your health.

6 "Answer: Of course. Not only mine.

7 "Question: But certainly that was your

8 perception, that there was danger in it.

9 "Answer: That is a different issue. It was

10 dangerous to offer assistance, and the danger came from

11 those elements, who without thinking clearly or

12 reasonably, simply hatred arose among them, that

13 everybody should be hated in general, and then you

14 could encounter such people that could do just anything

15 to you without thinking."

16 This is important uncontroversial evidence

17 from Witness D. What it indicates is it was dangerous

18 for one's personal safety to be seen or thought of as

19 helping quote, "Chetniks", end quote, which it may be

20 accepted was the prevailing atmosphere at the time.

21 The Prosecution gave this witness a glowing

22 testimonial, which in light of Defence evidence

23 presented about his role, may be seen as inaccurate.

24 But according to the Prosecution, Witness D

25 was such a good man, despite the fact that he took no

1 steps to report facts which he claimed had come to his

2 attention about crimes to the police, or to

3 international humanitarian bodies.

4 Now, the situation was not any different for

5 Mr. Mucic. Even if he had command authority, he would

6 have faced at least the same problems as D, if not more

7 so. If an experienced and senior ex-secret policeman

8 felt he did not have the knowledge or ability to make

9 more report about these matters, the Prosecution have

10 not shown why and to what extent Mr. Mucic's position

11 was any different.

12 It may be well thought to be common sense

13 that to be seen as a friend of the Bosnian Serbs would

14 have brought about repercussions for Mr. Mucic that

15 would have seriously inhibited his ability to exercise

16 any power he had to protect the detainees.

17 It may well be that Mr. Mucic had no more

18 power to do so than his own moral force to inhibit or

19 prevent mistreatment.

20 It has not been proven whether he was a

21 military commander or a civilian warden or

22 administrator and it certainly has not been proven in

23 either case what powers were given to him to

24 investigate and punish those who mistreated detainees.

25 In the absence of such proof, it is not

1 possible to say that he had any power to punish. But

2 the weight of the evidence is that whatever his

3 undefined power was, he could not exercise it in any

4 way since he could not get beyond the first step of

5 identifying the perpetrator. If he was unable to

6 identify who had done it, he could not have done

7 anything to punish or would not have had anyone to

8 report to.

9 I would like to now briefly focus the Court's

10 attention to some issues of law. On the nationality

11 issue we rely on what amounts to an admission that the

12 persons alleged in the indictment were somehow, quote,

13 "non-nationals", end quote, of Bosnia-Herzegovina,

14 were in fact of Bosnian nationality, contained in

15 paragraph 2 of the indictment.

16 Think about this for a moment, Mr. Moran

17 mentioned it: It's very simple but very compelling.

18 Why are they called Bosnian Serbs? Because they are

19 Bosnian.

20 The Prosecution describes those who were

21 detained at Celebici as Bosnian Serbs, which amounts to

22 a clear and unambiguous identification by the

23 Prosecution of the nationality of the detainees as

24 Bosnian which no amount of legal limbo can undo. It is

25 not a distinction without a difference.

1 Exhibit 130, in their written submission the

2 Prosecution relies on it as if it was proved it was a

3 document created and signed by Mr. Mucic. There is no

4 evidence this document was signed by Mr. Mucic. It

5 will be recalled that the Prosecution was not permitted

6 to prove the letter allegedly written by him to a

7 witness.

8 A consequence of that decision is there is no

9 evidence from a handwriting expert that Exhibit 30 was

10 signed by Mr. Mucic. It is, therefore, we believe,

11 misleading to treat it as though it was proven to be

12 signed by him. It was not found in his possession, it

13 was never put to him in any interview and has never

14 been acknowledged by him. And no one from the Bosnian

15 embassy was brought in to authenticate the document.

16 There is no evidence which proves it is his document.

17 As to the Vienna documents generally, we rely

18 on the arguments of the defence of Zejnil Delalic

19 throughout this trial and in their closings.

20 With respect to other general allegations in

21 the indictment, the Prosecution has failed, we believe,

22 to prove this was an international armed conflict, or

23 if there was an international armed conflict, that the

24 fighting in the Konjic Municipality had a sufficient

25 nexus to that conflict to make the events in that

1 municipality part of the international armed conflict.

2 We rely on the argument of the others there, as well.

3 Mr. Mucic, on the Article 3 charges, would

4 refer the Court to Mr. Greaves' discussion and to the

5 final submissions for the analysis there.

6 In summary, the Prosecution has failed to

7 prove its case against Mr. Mucic. There is no credible

8 evidence he took part in any act of mistreatment.

9 There is no credible, reliable evidence that he

10 witnessed any mistreatment that would fall within the

11 definition of murder, torture, causing great sufferings

12 or serious injury or inhumane or cruel treatment as

13 discussed by Mr. Greaves.

14 There is no credible, reliable evidence that

15 he knew in advance that any act of mistreatment was

16 going to take place or that he had any duty or even any

17 veil of authority to punish or prevent such acts.

18 There is no evidence as to what authority or

19 power he possessed. It is not proven that he had the

20 power and authority to investigate and punish anyone;

21 therefore, he can't be said to have properly failed to

22 investigate and punish those over whom he had no

23 authority.

24 There is no credible, reliable evidence that

25 proves what Mr. Mucic's position at Celebici was or

1 what his authority was beyond a reasonable doubt. The

2 Prosecution has failed in its burden of proof. We

3 therefore ask this Honourable Tribunal to return a not

4 guilty verdict on each count of this indictment for

5 Mr. Mucic. Thank you.

6 JUDGE KARIBI-WHYTE: Thank you very much.

7 MR. O'SULLIVAN: Your Honours, can I point

8 out an error in the transcript? During his submissions

9 Mr. Kuzmanovic mentioned Mr. Delic, and the transcript

10 mentions Mr. Delalic on page 109 of Live Note, line

11 18. Line 18 reads "made allegations against

12 Mr. Delalic and Mr. Mucic," and I believe

13 Mr. Kuzmanovic said "against Mr. Delic and Mr. Mucic."

14 I ask that that be corrected, please.

15 JUDGE KARIBI-WHYTE: Thank you.

16 You may proceed Mrs. McMurrey.

17 MS. McMURREY: May it please the Court.

18 Thank you, Your Honours.

19 I'm Cynthia McMurrey, and along with Nancy

20 Boler and Calvin Saunders, we represent Esad Landzo.

21 This, the International Criminal Tribunal for

22 the Former Yugoslavia, is completing the first

23 multi-defendant war crimes trial ever attempted under

24 this genesis of an innovative new law, and it's aimed

25 at controlling the way that we participate in war.

1 It's aimed at controlling and instilling a conscience

2 on the world as we see it today.

3 This is a real, a very noble goal. The

4 multi-national character of these proceedings forces

5 this Tribunal to construct a set of principles that are

6 not familiar to any one advocate or one jurist. We all

7 came in here, I know how uncomfortable it was at first,

8 because we were all unsure about what laws applied; but

9 we're coming out of this in a comfortable way. We know

10 what to expect when we come to the proceedings now. We

11 don't have an absolute definition of what the law is at

12 this point, but I'm proud to be a part of being here

13 and constructing this new foundation for international

14 criminal law, and I want to thank this Court and I want

15 to thank the Registry, and I want to thank the Victim

16 and Witnesses Unit and security, and all of you for

17 putting up with us and being very understanding and

18 helping us solve our problems.

19 As my colleague, Mr. Kuzmanovic, mentioned a

20 while ago, the political motivations apparent in the

21 Celebici case sprang from the fact that the Prosecutor

22 must prove to the international community that she is

23 interested in administering even-handed justice. This

24 was her purpose stated in the Celebici indictment.

25 Even-handed justice is both a sword and a

1 shield, and for reasons of equity, example and

2 precedent, this Tribunal must not tolerate a

3 manipulation of this even-handed justice. Then there is

4 no justice.

5 Although the statute of this Tribunal is

6 attempting to create individual responsibility for

7 crimes stated in Article 2 through Article 5, the aim

8 of the founders of customary international law was that

9 this Tribunal should be focused on persons or

10 governments acting with authority for such crimes.

11 The Prosecutor of this very Tribunal, Louise

12 Arbour, has given support to this limitation on

13 prosecution by entering into an agreement with the

14 government of Rwanda. The agreement is that only

15 persons with authority or command responsibility will

16 be tried in the International Tribunal for Rwanda. All

17 the others will be tried and continue to be tried in

18 the National Court.

19 This double standard for justice verges on

20 hypocrisy to have the Prosecutor in the Rwandan

21 Tribunal say they will concentrate on people with

22 authority and do absolutely the opposite here in this

23 Tribunal with a young guard named Esad Landzo.

24 Last month we had various members of all the

25 members of the United Nations meeting in Rome to

1 promulgate the rules to set up a permanent

2 international criminal court. The Rome statute was

3 adopted on July 17th. One of the main arguments put

4 forth in the forum in Rome contends if a statute of the

5 permanent court is allowed to remain so broad, the

6 permanent court will become a dumping ground for all

7 the complaints.

8 A line must be drawn, and Louise Arbour has

9 drawn that line with the Tribunal, and she is

10 continuing to draw that line by recently dismissing the

11 indictments against 16 Serb detainees accused of war

12 crimes.

13 Her reasons were consistent with an agreement

14 of the Rwandan Tribunal. At the moment it is not

15 possible to maintain complex separate trials for such

16 connected acts committed by the accused who could be

17 tried in the appropriate way, also in the national

18 state courts.

19 Mrs. Arbour recites procedural economy and

20 excessive expenses as further reasons for dismissal.

21 It was also stated that the Tribunal wants to separate

22 the big fish from the small fish.

23 Esad Landzo was targeted for Prosecution for

24 three reasons: One, the Prosecution needed to display

25 an example of prosecuting a Bosnian Muslim. Two, he

1 voluntarily surrendered upon request, driving to

2 Sarajevo and turning himself in to custody. And three,

3 he is the token guard that the witnesses can now

4 identify, because he's the one here on trial.

5 In construing the statute of the Tribunal,

6 history and experience outweigh logic. A bright line

7 is drawn between those who incite and those who act out

8 of a blood borne loyalty, misguided though it may be,

9 to those they see as their kin.

10 It is the calculated and cultivated culture

11 of inhumanity at which world opinion aims, not the

12 nameless guard who becomes infected with the virus.

13 In our world among people who share the

14 notion of civility and common decency, there is a

15 shared perception that those who conceive, plan and

16 execute crimes against humanity should be caught and

17 punished. From such high convictions this Tribunal

18 draws its strength. It shouldn't be squandered on the

19 pursuit of common ordinary soldiers or prison guards.

20 The Celebici case represents the first

21 assertion of the Defence of diminished mental

22 responsibility. This defence, if proven by a

23 preponderance of the probabilities, will result in a

24 finding that Esad Landzo was not guilty of the

25 allegations of murder in the Celebici camp.

1 Ms. McHenry may view this defence as a joke,

2 but there is a lot more to it than getting butted in

3 the head by a billy goat.

4 The evidence presented by the mental health

5 experts, Prosecution and Defence, supports the fact

6 that Esad Landzo was suffering from a severe

7 personality disorder from the time he was a very young

8 boy. He was sickly, asocial and dependent. Overlap

9 this basic personality disorder with post-traumatic

10 stress disorder, PTSD, and what is created is a state

11 of mind which results in diminished mental

12 responsibility.

13 The triggering trauma adding up to the PTSD

14 was Esad Landzo's forced participation in a Croatian

15 military training camp in March, April or May of 1991.

16 Anyone, much less an 18-year-old boy, who was forced to

17 sit in a room and be instructed how to effectively slit

18 a human being's throat in front of him and participate

19 in that while watching video-tapes of what crimes were

20 being committed on the civilians in the area, would

21 suffer a trauma.

22 The mental health experts demonstrated how

23 Esad Landzo was unable to exercise his own free will in

24 the Celebici barracks in 1992.

25 The credibility of the Prosecution witnesses

1 who testified is surely suspect. As Mr. Moran and

2 Mr. Kuzmanovic have already cited, although he didn't

3 mention a name, when an association such as the

4 association of detainees in Belgrade is allowed to hold

5 testifying seminars and allowed to have a

6 representative in the courtroom every day the evidence

7 is presented, there is injustice.

8 That representative sat here in the courtroom

9 every day and reported back to the association of

10 detainees what the testimony was, what the

11 cross-examination was. Of course they could get their

12 stories straight.

13 And much of the evidence presented by these

14 witnesses reflected the use of the same terms over and

15 over again.

16 The conclusion that is relied upon by this

17 defence is simple. The Prosecutor has failed to

18 present sufficient evidence to allow a rational trier

19 of fact to find all evidence, all elements of every

20 count or series of counts beyond a reasonable doubt;

21 and two, has failed to present sufficient evidence to

22 show a violation of international law by this Tribunal.

23 At this point, so I'm not going to reiterate

24 all the arguments, the Defence of Esad Landzo wishes to

25 adopt the legal arguments put forth by Mr. Moran as far

1 as international armed conflict goes, protected person,

2 Common Article 3, and the arguments by Mr. Greaves as

3 far as our submissions on intentional killing and

4 torture, which I hope to have a definition for Judge

5 Jan when we come back for rebuttal.

6 The accused in the -- in fact, Mr. Moran did

7 an excellent job simplifying these very complicated

8 legal issues so that I think everybody could understand

9 them. And now, the burden is beyond a reasonable

10 doubt, not like it was at the half-time motion, though.

11 Article 21.3 mandates that the accused shall

12 be presumed innocent until proven guilty beyond a

13 reasonable doubt. And this Trial Chamber is well aware

14 of the higher burden, that there is no higher burden

15 allowed under law.

16 This Trial Chamber must now review the

17 allegations against Esad Landzo, as set forth by the

18 Prosecutor in the indictment, and decide whether the

19 Prosecution has proven each and every allegation beyond

20 a reasonable doubt. We believe they have not.

21 As I've been describing, whether you title it

22 selective prosecution or you title it tokenism, a

23 selective prosecution is one brought for reasons that

24 are forbidden by governing law. In the United States

25 there exists a strong body of legal jurisprudence to

1 defend against selective prosecution. The decision to

2 prosecute may not be based on any unjustifiable

3 standard, such as race, religion or other arbitrary

4 classification.

5 In order to effectively assert selective

6 prosecution, a defendant must make a threshold showing

7 that the Prosecution declined to prosecute similarly

8 situated suspects of other races or religions --

9 INTERPRETER: Please slow down.

10 MS. McMURREY: -- and that the defendant was

11 singled out for prosecution on the basis of race or

12 religion. Considering the following, the burden

13 described above has most certainly been met.

14 Now, I'm going to ask that this Court please

15 have some tolerance for this. I'm going to try to use

16 the ELMO in conjunction with my final argument. So, at

17 this point, would you put number 1 up, please?

18 Notwithstanding the proof that in the ICTR

19 for Rwanda, the Prosecutor maintains an agreement that

20 the Rwandan government, to prosecute only those accused

21 who are considered big fish, she continues to support

22 this policy here. On April 28th, 1998 in the

23 Prosecutor versus Sikirica, S-I-K-I-R-I-C-A, case

24 number 95-8 here, the Prosecutor, Louise Arbour, sealed

25 the precedent that ordinary soldiers, or those without

1 command responsibility, should not be prosecuted in

2 this international forum.

3 In these legal documents and in her statement

4 made by the Prosecutor following the withdrawal of the

5 charges against the accused, Mrs. Arbour concluded:

6 "In light of that situation, I have re-evaluated," and

7 I'm quoting, "re-evaluated all outstanding indictments,

8 vis-à-vis the overall investigative and prosecutorial

9 strategies of my office. Consistent with those

10 strategies which involve maintaining an investigative

11 focus on persons holding higher levels of

12 responsibility are those who have been personally

13 responsible for the exceptionally brutal or otherwise

14 extremely serious offences --

15 INTERPRETER: Could the speaker please slow

16 down.

17 MS. McMURREY: -- to withdraw the charges

18 against a number of accused in what has been known as

19 the Omarska and Keraterm indictments which were

20 confirmed in February and July of 1995. This decision

21 was taken in an attempt to balance --

22 JUDGE KARIBI-WHYTE: Did you hear the --

23 MS. McMURREY: I'm sorry.

24 JUDGE KARIBI-WHYTE: Did you hear them? Slow

25 down.

1 MS. McMURREY: Hit me.

2 This decision was taken in an attempt to

3 balance the available resources within the Tribunal and

4 in recognition of the need to prosecute cases fairly

5 and expeditiously. I wish to emphasise that this

6 decision is not based on lack of evidence in respect of

7 these accused. I do not consider it feasible this time

8 the hold multiple separate trials for related offences

9 committed by perpetrators who could appropriately be

10 tried in another judicial forum such as a state court.

11 Esad Landzo steps clearly into these shoes of the 14

12 accused dismissed by the Prosecutor because she wishes

13 to maintain an investigative focus on persons holding

14 higher levels of responsibility and for fiscal

15 economy.

16 All of the accused whose indictments have

17 been dismissed by the Prosecutor are of Serb

18 ethnicity. The three Bosnian Muslims charged in the

19 Celebici indictment remain the only Bosnian Muslims

20 charged in this Tribunal. If the ordinary soldiers who

21 are of Serb ethnicity are dismissed because of the

22 desire of the Prosecutor to concentrate on those

23 violators of higher levels of responsibility, then in

24 the name of equity and fairness, the indictment against

25 Esad Landzo should necessarily be dismissed. Pardon?

1 JUDGE JAN: Are you taking up this position

2 with the Prosecutor?

3 THE INTERPRETER: Microphone, please.

4 MS. McMURREY: No, Your Honour, I have not

5 taken up the position with the Prosecutor.

6 JUDGE JAN: It is for the Prosecutor to

7 decide whom to prosecute and whom not to prosecute.

8 MS. McMURREY: You're right. I think that

9 the ball was rolling so significantly in this case that

10 it would have been most inopportune for Ms. Arbour to

11 have dismissed this one at the same time she dismissed

12 the counts against the Serb indictees. But it doesn't

13 make it any more proper or just under the

14 circumstances.

15 Notwithstanding the fact that the three

16 Muslim accused in the Celebici indictment represent the

17 only Bosnian Muslims accused in this Tribunal, Esad

18 Landzo in 1992 was an 18-year-old prison guard with no

19 prior military training. There is no position lower in

20 the military hierarchy than that held by this young

21 man. The maintenance by the Prosecutor of an

22 indictment against Esad Landzo clearly violates Article

23 21(1) of the Statute of the ICTY. Article 21(1)

24 guarantees all persons shall be equal before the

25 International Tribunal. If there is to be equality

1 under the statute of the ICTY, the entire indictment

2 against Esad Landzo should be dismissed and referred

3 back to the state of Bosnia-Herzegovina for

4 Prosecution.

5 There is statutory support for the

6 Prosecution of those with command responsibility. That

7 was covered in the written final submissions, so I am

8 not going to cover the statutory support at this time.

9 If the indictment and charges against Esad

10 Landzo are allowed to remain the subject of

11 Prosecution, then Article 21 becomes moot. This

12 Tribunal should not confuse the premise of even-handed

13 justice with a political agenda supporting this type of

14 indictment.

15 Rule 67(a)(ii)(b) of the rules of procedure

16 provide for a special defence, the Defence of

17 diminished mental responsibility. Although this

18 special defence is prevalent in jurisdictions based on

19 British common law, it's unique to the war crimes

20 arena. The Nuremberg trials utilised the premise of

21 diminished mental responsibility. It was limited to

22 mitigation of punishment. Although this is a special

23 Defence provided for in the rules, there are no legal

24 guidelines which to follow.

25 On June 18th the Trial Chamber did rule that

1 the burden of proving a Defence lies with the Defence

2 and that the standard of proof is by a preponderance of

3 the probabilities. The Trial Chamber reserved its

4 decision on the definition of diminished mental

5 responsibility until final judgement. Because there is

6 no decision of the Tribunal on the legal test of

7 diminished responsibility to be applied, preparation

8 for presentation of evidence regarding the accused has

9 been prejudiced pursuant to the statute.

10 THE INTERPRETER: Slow down.

11 MS. McMURREY: The Defence proceeded to

12 present evidence without a clue of what it was that

13 must be proven in order to surmount the burden of proof

14 which now shifted to Esad Landzo. I want to try to

15 differentiate too. Many times throughout this trial,

16 you heard people referring to the Prosecution's mental

17 health expert, right or wrong? Ms. McHenry in her

18 closing statement today referred to whether he knew

19 right from wrong. That is not the legal standard that

20 is to apply here. That would be lack of mental

21 responsibility. The Defence of Esad Landzo is claiming

22 diminished responsibility.

23 Diminished responsibility was provided for in

24 the Homicide Act of 1957 in Great Britain. This is the

25 definition that we're relying on. I think it's the

1 most prevalent in our society or in the international

2 community which states that -- I hope we're not relying

3 on it improvidently -- "But where a person kills or is

4 a party to a killing of another, he shall not be

5 convicted of murder if he was suffering from such

6 abnormality of mind, whether arising from a condition

7 of arrested or retarded development of mind or any

8 inherent causes or induced by disease or injury as

9 substantially impaired his mental responsibility for

10 his acts and omissions in doing or being a party to the

11 killing."

12 The definition of abnormality of mind that is

13 relied upon also comes from British common law. The

14 case out of Great Britain, which is cited in my final

15 submission says, "Abnormality of mind means a state of

16 mind so different from that of the ordinary human

17 beings, that the reasonable man would term it

18 abnormal." This definition covers the mind's activity

19 in all aspects. Not only the perception of physical

20 acts and matters and the ability to form a rational

21 judgement, whether the act was right or wrong, but also

22 the ability to exercise willpower to control physical

23 acts in accordance with that rational judgement. So,

24 what it boils down to is whether because of the

25 abnormality of his mind he was able to exercise his own

1 free will.

2 If the fact finder is satisfied by a

3 preponderance of the probabilities that the accused was

4 suffering for the abnormality of mind for one of the

5 causes specified in parenthesis, the second prong of

6 the test arises. Was the abnormality such as

7 substantially impaired his mental responsibility for

8 his acts in or doing or a party to the killing. This

9 is a question of degree and essentially for the

10 fact-finder. Without the definition, though, it was

11 very difficult. How could the Defence know what it

12 must prove? How could the defence advise and give

13 legal perimeters to the experts witnesses that

14 testified. How could the Prosecutor know how to

15 effectively cross-examine? I hope that our reliance in

16 this definition was not too far off base.

17 The Defence of Esad Landzo has shown this

18 Trial Chamber that Esad Landzo was a sickly, fragile

19 boy to begin with. At the outbreak of the aggression

20 against Croatia, this 18-year-old boy was subjected to

21 the most horrific experience in a Croatian military

22 training facility. This facility shocked the senses

23 and moral integrity of the young students by showing

24 violent videos depicting atrocities that were being

25 executed upon people that the Serbs captured and

1 culminating with live demonstrations on how to neatly

2 torture and murder live, Serb civilians.

3 After this brain-washing experience, the

4 aggression came to his own home: his village, his

5 friends and his family were under attack. The very

6 existence of his culture was to be destroyed. All

7 able-bodied males, even young boys, were called up for

8 the Territorial Defence. Esad Landzo had no military

9 experience, but he became a member of the Territorial

10 Defence and all the young boys with no experience were

11 stationed, not all of them, but he was stationed along

12 with 20 others to provide security for the Celebici

13 barracks.

14 The Defence of Esad Landzo relies upon the

15 autonomous decisions of three forensic psychiatrists:

16 Dr. A.M.H. Van Leuween, Dr. Marco Laggazi, and Dr.

17 Edward Gripon. And one clinical psychologist, Dr.

18 Alfredo Verde, who offered evidence. Esad Landzo also

19 relies upon the evidence elicited from the mental

20 expert called by the prosecutor, Dr. Landy Sparr.

21 In summary, the four mental health experts

22 called, arrived independently at roughly the same

23 conclusions and all agreed that he suffered from a

24 personality disorder under Axis 1 of the DSM IV

25 criteria and that was superimposed over an Axis 1

1 disorder which they called anywhere from PTSD to acute

2 anxiety disorder to an adjustment disorder, which were

3 all relatively the same thing. These extract

4 personality disorders, ranging from dependant to mixed

5 personality disorder, were all describing the same

6 abnormality of mind.

7 Dr. Van Leuween, who was a Dutch forensic

8 psychiatrist initially became involved in these

9 proceedings at the request of the registrar.

10 Dr. Van Leuween diagnosed Esad Landzo from October 1996

11 until recently. He said he was suffering from a mixed

12 personality disorder and borderline schizoid and

13 dependant traits. He did not diagnose Mr. Landzo with

14 PTSD in 1992 because he believed Mr. Landzo was still

15 suffering under an ongoing trauma in 1992, so the PTSD

16 didn't develop until later. Dr. Van Leuween explains

17 why he cannot place Mr. Landzo's personality disorder

18 in one category. He said that, so he has a personality

19 disorder, but, no, it's more obvious that it's a mixed

20 personality disorder. It is not one category. You

21 need to use more categories to describe the realities

22 of this person. All the mental health experts describe

23 Mr. Landzo's dependant personality in different terms,

24 but they all came up with the premise of the false

25 self. The dependant personality disorder was further

1 described by Dr. Van Leuween. Dr. Van Leuween said in

2 Number 6:

3 "QUESTION: Those borderline

4 personalities, those are cognisable personality

5 disorders, aren't they?

6 "ANSWER: Yes. Do you see this person?

7 How dependant he is? He told me in that camp he was

8 under the influence of Mr. Delic."

9 When asked by Judge Karibi-Whyte to explain

10 the difference between a person suffering from a

11 dependent personality disorder and the need to obey a

12 priest or a soldier, Dr. Van Leuween explained, "Of

13 course. There is a difference between knowing that you

14 are obeying because the situation asked you to obey or

15 obeying with closed eyes because you can't do anything

16 else other than obey. And you can't do anything else

17 other than obeying with closed eyes."

18 Dr. Van Leuween's conclusions came up also

19 that there was an abnormality of mind and that the

20 abnormality of mind -- and I am going now to No. 10

21 what his conclusion is. That summarising his

22 findings. What is your conclusion? "The consequence

23 of clinical conclusion, that somebody was in a mental

24 condition which diminished his capacity to exercise his

25 own free will from a forensic psychiatric point of

1 view, my advice would be to consider him to have

2 diminished responsibility at the time of the acts."

3 And Dr. Van Leuween went on further. Now

4 when asked by counsel for Mr. Delic, question by Mr.

5 Moran:

6 "QUESTION: You've described him as a

7 dependant personality, does that mean if there is a

8 strong authority figure he would become dependant on

9 that authority figure and do what that authority figure

10 told him to do?

11 "ANSWER: Yes."

12 That's transcript page 14236. Alfredo Verde came up

13 with the same results of his clinical evaluations.

14 Alfredo Verde said that he was suffering from an

15 abnormality of mind in 1992. That he could not control

16 his behaviour as a result of an abnormality of mind.

17 And that:

18 "QUESTION: As a result of the

19 abnormality of mind, would you say that he was in a

20 state of diminished mental capacity?

21 "ANSWER: Yeah.

22 "QUESTION: In Celebici in 1992?

23 "ANSWER: Yeah."

24 Transcript, 14403.

25 When questioned by Judge Karibi-Whyte about

1 the abnormality of mind, Dr. Verde explained, "And he

2 was not such a capacity, but he tends to put on, to

3 wear the clothes of others. It's rather like an

4 animal. A chameleon. Yes, changing colours according

5 to the environment."

6 Dr. Lagazzi arrived at the same conclusions,

7 a forensic psychiatric from Genoa, Italy, he was called

8 here at the request of the Prosecution in 1996. He has

9 been evaluating Mr. Landzo over that period.

10 No. 12. Dr. Lagazzi said he clearly fits

11 under the DSM IV category of mixed personality

12 disorder. When you begin with these various

13 personality disorders and then you overlay these with

14 PTSD, you result in a severely enhanced condition of

15 PTSD.

16 When Judge Karibi-Whyte asked Dr. Lagazzi to

17 relate the personality disorder to the mental ability

18 of the accused person to commit offences against which

19 he is charged and the extent to what he is responsible,

20 Dr. Lagazzi replied: "So, what I have done is to

21 assess the individual. And I believe that this kind of

22 personality in specific circumstances of authority may

23 lead to the acceptance of an order and lead, in turn,

24 to certain attitudes without using one's own free

25 choice." In other words, where free will is absent.

1 And Dr. Lagazzi continued, "In other words,

2 Mr. Landzo had a clinical condition and it was probable

3 on the basis of that condition that when he received

4 very specific orders, he would then act in a non-free

5 manner." Transcript 14551 through 552. He also went

6 on to describe the "Zelig" movie by Woody Allen. He

7 gave you the instruction or the example of the red

8 shoes where normality spills over into abnormality. He

9 also came to the same conclusions as the other ones.

10 No. 14. When he was asked whether he was

11 suffering from an abnormality of mind in 1992, the

12 answer was "yes." When asked if this abnormality of

13 mind influenced his ability to control his behaviour in

14 the setting as a guard in Celebici in 1992, the

15 answer: "There is a probability that it did influence

16 his behaviour." When asked whether he suffered from

17 lack of free will in 1992, the answer was: "I can tell

18 you that this lack of free will was in all likelihood

19 to be found at the time he was in Celebici."

20 Dr. Lagazzi continued, No. 15. "To show why

21 Esad Landzo could not exercise his own free will."

22 "So you believe this man was incapable of

23 exercising free will over a period of say two or three

24 months in 1992, in the summer?"

25 "ANSWER: Sorry, but let me once again

1 go to the logical sequence of the work which I have

2 gotten into. I do have clinical findings to prove a

3 pathological personality disorder. I have a legal

4 definition which I have been given, which refers to

5 abnormality personality as a possible cause for

6 diminished responsibility. And this led me to say, if

7 you combine these two elements, we could say that there

8 is a probability that there is diminished

9 responsibility."

10 I am not going to go into detail because of

11 the time constraints. Dr. Gripon, who was an American

12 forensic psychiatrist came up with the very same

13 conclusions that all the other forensic psychiatrists

14 came up with and I have the exact quotes set out in the

15 final submission.

16 And then we came to the Prosecutor's expert,

17 Dr. Landy Sparr. Dr. Sparr, when I questioned him

18 about what standard he used to come up with his

19 opinions in his report, he told us four different

20 standards and they were all of his own creation. None

21 were legally acceptable standards that he used to come

22 up with his opinion. So all the conclusions that are

23 asserted in his report and testimony should be

24 disregarded and be considered baseless. That too is in

25 the final submission.

1 I would like to go to the indictment. Since

2 I am probably running out of time, I would like to

3 summarise -- pardon? Eight minutes. Of course,

4 Mr. Landzo testified and we believe that the best

5 testimony, the best evidence in this case is the

6 testimony of Mr. Landzo. It took a lot of courage to

7 come here and testify. And he admitted that he

8 participated in the beating of Scepo Gotovac. He told

9 us about the circumstances, how he was handed a piece

10 of paper out of the window by Mr. Mucic and Mr. Delic,

11 saying that they wanted this man to come out with his

12 feet first because someone else had come there and told

13 them they had a vendetta against this man.

14 Well, we believe that he should be found not

15 guilty of those counts in the indictment because he was

16 suffering from such diminished mental capacity that

17 rendered his judgement diminished responsibility for

18 the acts at that time.

19 Simo Jovanovic. Mr. Landzo testified that,

20 yes, he called Simo Jovanovic out. That the guards

21 from Idbar had come there and they took him over into

22 the workshop and they beat him and he returned him back

23 to the hangar 20 minutes later. And, yes, he did say

24 that Mr. Simo Jovanovic more than likely died from the

25 beating that he received that evening.

1 But, most of all, we come to Mr. Bosko

2 Samoukovic, who was an elderly man, who was just one of

3 the six or seven people that Mr. Landzo hit in the

4 hangar when he returned on July 12th, 1992. In July

5 12th, I can't go through all of the testimony, but, you

6 know, he had just come from the scene of the most

7 brutal murder of the person who had been his father

8 figure for the previous few years, Ibro, who lived

9 above him and seen how he had been mutilated, his body

10 destroyed and mutilated. He went back, and because he

11 was in such a diminished mental state, that he couldn't

12 control his actions and he did admit to going in and

13 hitting this man.

14 One thing that the Prosecution hasn't proven,

15 Mr. Landzo called the nurse immediately to help this

16 man when he saw that he was seriously injured. He took

17 him straight to the infirmary. He ordered the doctors

18 to make him well. Now a murderer doesn't do that.

19 That doesn't make sense. There was no intent on

20 Mr. Landzo's part to murder Mr. Samoukovic. And that

21 would be very hard stretched for the Prosecutor to say

22 that there was.

23 Mr. Susic, the fourth allegation of murder

24 against Mr. Landzo. Mr. Landzo said, yes, he did go

25 with the other guards to put him in Tunnel 9. And as

1 he did put him in Tunnel 9, he did push him. Mr.

2 Susic, he was beaten. But Mr. Landzo did not beat him

3 during the times that ended up resulting in his death.

4 Of course there are four allegations of

5 torture against Mr. Landzo. I promise, Judge Jan, and

6 your Honourable Court that I will come up with the

7 definition of torture when we come back tomorrow. But

8 the definition of torture as submitted by the

9 Prosecution is clearly too broad. We have Witness M.

10 Witness M, Mr. Landzo admitted -- can you put No. 27

11 on, please? Mr. Landzo's testimony was that, yes, he

12 did burn Witness M. Yes, he did participate in the

13 beatings of Witness M. He did it with Hazim Delic

14 watching him and he was ordered to do so. Witness N,

15 he also says that he remembers Witness N being beaten

16 by the HOS. He doesn't remember Mirko Babic. He

17 doesn't remember Mirko -- no, Mirko Djordjic he does

18 remember. No, he doesn't remember Mirko Djordjic.

19 Nedeljko Draganic, who is the charge of great

20 suffering, he knew him from school. He said he came in

21 as Nedeljko Draganic was being beaten over in the other

22 hangar. And, yes, when he was told to put him back in

23 the hangar, he kicked him or hit him and tried to get

24 him up and he did put him back in the hangar. But he

25 did not do the torturous allegations that are in Counts

1 36 and 37. And, of course, it would be ludicrous to

2 hold a young guard, 18 years-old, responsible for the

3 inhuman conditions at the camp.

4 The fact is, Esad Landzo had no authority to

5 change any of the conditions in the camp. And he had

6 no command responsibility. So the allegations of

7 inhumane conditions in Count 46 and 47 should be

8 dismissed against Esad Landzo.

9 I want to address the lack of credibility of

10 the Prosecution witnesses one more time. They were all

11 allowed to come here and tell their story. Each

12 Prosecutor that testified here had six years, five to

13 six years to get their stories together. They went to

14 a testifying seminar in Temisoara (Phoen), Romania.

15 They are now not able to separate what they heard in

16 those seminars. What it is they've talked to each

17 other about over those six years and what it is that

18 they actually remember or heard themselves.

19 Each Prosecution witness testified that Esad

20 Landzo was the guard posted at the door of Hangar No.

21 6, the building where the majority of the detainees

22 were held. His was the only name they knew. When they

23 wanted to contact the outside world, they shouted

24 Landzo, Zenga, in order to make any kind of

25 communications. He carried messages, solved problems

1 and answered their calls. He was the name that they

2 recognised, the name they knew. He is the guard that's

3 here, present.

4 If I might conclude, in a multi-defendant

5 trial, especially one with the underpinnings of

6 national integrity, national pride and political

7 warfare still in the forefront, the decision to testify

8 becomes a matter of life or death and of national

9 dignity. Esad Landzo chose at the risk of the threat

10 of his home, his family and himself to come before this

11 tribunal and testify. This was a courageous decision.

12 Esad Landzo wished to present the best Defence that he

13 could to the allegations by the prosecutor. But he was

14 inhibited and prevented from doing so by intimidation

15 and interference with the witnesses who previously

16 agreed to come forward and speak the truth.

17 There is no doubt that terrible acts occurred

18 in the camp during the summer of 1992. These

19 regrettable acts can now be defined and viewed as a

20 result of the aggression and the atmosphere of fear and

21 panic that was forced upon the people of the Konjic

22 Municipality. Whatever the motivation, our goals in

23 this International Tribunal are to understand what the

24 causes were in 1992. An attempt to prevent a

25 recurrence of such events, the entire scheme of crimes

1 against humanity must, if it is to have moral vigour,

2 to maintain the support of world opinion, must be

3 designed to attack and punish command responsibility.

4 It is aimed at the destruction of any military or

5 authoritarian command structure, which breeds,

6 nurtures, creates or encourages savagery, mayhem and

7 violates the common notions of human dignity. To focus

8 the light of world opinion upon a prison guard,

9 denigrates the process. The punishment of a hapless

10 19-year-old caught up in the midst of a confusing

11 conflict, a conflict which literally came to his

12 doorstep, is such a simplistic and unfair solution, it

13 defames the original noble intent of the framers of the

14 law.

15 In our world, among those people who share

16 the notion of civility and common decency, there is a

17 shared perception that those who conceive, plan and

18 execute crimes against humanity should be caught and

19 punished. From such high convictions, this Tribunal

20 draws its force. Let it not be squandered in the

21 pursuit of common soldiers and prison guards. Such

22 actions diminish the moral authority from which world

23 justice springs. Notwithstanding the common legal

24 arguments put forth by all of the accused in the

25 Celebici case, Esad Landzo presented strong and

1 compelling evidence that while stationed as a guard in

2 the Celebici barracks, he existed in a state of

3 diminished mental capacity, legally resulting in a

4 state of diminished mental responsibility. The burden

5 of proof was merely by a preponderance of the

6 probabilities. This burden of proof has most assuredly

7 been surmounted by the consistent testimony of four

8 independent health experts, each of whom testified that

9 Esad Landzo should be found to have diminished mental

10 responsibility for his actions in 1992.

11 Once again I want to thank this Tribunal. I

12 really appreciate my participation in this trial. On

13 behalf of Esad Landzo, I want to say that we have met

14 our burden of proof and this Honourable Trial Chamber

15 should return a verdict of not guilty to the counts in

16 the indictment. Thank you.

17 JUDGE KARIBI-WHYTE: Thank you very much. I

18 think it's 5.30 now, we shall adjourn until tomorrow

19 for the Prosecution to continue for any possible

20 rebuttal it has. So the Trial Chamber will now rise.

21 --- Whereupon proceedings adjourned at

22 5.30, to the reconvened on Tuesday, the

23 1st day of September, 1998,

24 at 10.00 a.m.

25