1 Friday, 3 June 2005
2 [Open session]
3 --- Upon commencing at 9.05 a.m.
4 [The accused entered court]
5 JUDGE AGIUS: Yes, Madam Registrar, could you call the case,
7 THE REGISTRAR: Good morning, Your Honour. This is case number
8 IT-03-68-T, the Prosecutor versus Naser Oric.
9 JUDGE AGIUS: I thank you, Madam and good morning to you.
10 Mr. Oric, can you follow the proceedings in a language that you
11 can understand?
12 THE ACCUSED: [Interpretation] Good morning, Your Honour. Good
13 morning, ladies and gentlemen. I can follow the proceedings in my own
15 JUDGE AGIUS: I thank you and good morning to you. Appearances
16 for the Prosecution?
17 MR. WUBBEN: Good morning, Your Honours. My name is Jan Wubben
18 lead counsel for the Prosecution. I'm here together with co-counsel,
19 Ms. Sellers, Mr. Gramsci Di Fazio, Ms. Joanne Richardson, and Mr. Jose
20 Doria, together with our case manager, Ms. Donnica Henry-Frijlink.
21 JUDGE AGIUS: I thank you and good morning to you and your team.
22 Yes, appearances for Naser Oric?
23 MS. VIDOVIC: [Interpretation] Good morning, Your Honour. Good
24 morning to the colleagues from the Prosecution. My name is Vasvija
25 Vidovic and together with Mr. John Jones I appear on behalf of Mr. Naser
1 Oric. With us are our legal assistant Ms. Adisa Mehic and our case
2 manager, Mr. Geoff Roberts.
3 JUDGE AGIUS: I thank you, Madam Vidovic.
4 Any preliminaries before we start?
5 MR. WUBBEN: Yes, Your Honour.
6 JUDGE AGIUS: Yes, Mr. Wubben?
7 MR. WUBBEN: First, I would like to request exhibit numbers for
8 the Prosecution exhibits we handed over and still pending for such a
10 JUDGE AGIUS: I haven't got a clue as to which exhibits they are.
11 THE REGISTRAR: Yes, Your Honour, it's the agreed facts. They
12 will be Exhibit P562. And then the presentation of the Defence submission
13 will be Exhibit D303, and then we received English translation of Exhibit
14 P560, P210, D298 and D299.
15 JUDGE AGIUS: Have you been pre-alerted to these, Mr. Jones?
16 MR. JONES: Yes, and that's the PowerPoint presentation.
17 JUDGE AGIUS: Thanks. We got that by the way. I just wanted to
18 confirm to you that we got the PowerPoint presentation for which we are
19 grateful. Anything else, Mr. Wubben?
20 MR. WUBBEN: Yes, Your Honour. When it comes to our submission
21 this morning, I would like previously to concede to the fact that we have
22 no case to answer regarding Bogdan Zivanovic as mentioned in paragraph 25,
23 that's count 1, the murder. And the second Miloje Obradovic, paragraph 24
24 and (B)(iv) count 2.
25 JUDGE AGIUS: Cruel treatment.
1 MR. WUBBEN: Cruel treatment.
2 JUDGE AGIUS: Okay. I thank you.
3 MR. WUBBEN: And with a view to our submissions this morning, we
4 make a compilation of our documents. We will show, we will use in our
5 submissions. We made a booklet in the form of a binder and we would like
6 to circulate that.
7 JUDGE AGIUS: Okay. I thank you. I'm sure that will be extremely
8 useful, Mr. Wubben. Also while this is being done, let me take this
9 opportunity to -- I couldn't do it yesterday because of one thing or
10 another, it escaped me, actually, and then it was too late when I
11 remembered, Mr. Jones, I must publicly congratulate you on the way in
12 which you made your submissions, which I hope has set an example for -- to
13 other counsel for the future. This is precisely what we had in mind when
14 we amended the rule, and apart from the style in which you delivered your
15 submissions, it's also the concise manner in which you managed to put
16 everything that was relevant to your case in less than two hours. That is
17 admirable and I must publicly congratulate you for that.
18 MR. JONES: I'm very grateful to Your Honour for those kind
20 JUDGE AGIUS: Yes. Whenever you're ready, Mr. Wubben. Let me
21 see. This is heavy. What's this?
22 MR. WUBBEN: This is a booklet of the documents, the exhibits
23 referred to by the Prosecution in their submission, rather than quotations
24 referring to the --
25 JUDGE AGIUS: I see. It's a collection of bits and pieces from
1 the records that you are relying yourself upon.
2 MR. WUBBEN: Yes.
3 JUDGE AGIUS: Okay. I think this is very useful.
4 MR. WUBBEN: And there is a skeleton of our submission, of our
5 argument this morning, with an overview --
6 JUDGE AGIUS: Yes.
7 MR. WUBBEN: -- together with a list as such, as an overview, as a
8 skeleton, to support your information.
9 JUDGE AGIUS: All right.
10 MR. WUBBEN: May I ask for a P number, Your Honour?
11 JUDGE AGIUS: Does it have to have a P number.
12 MR. WUBBEN: No, it doesn't have to do but as I recall was there
13 also a P number for the Defence?
14 JUDGE AGIUS: I don't recall giving the Defence --
15 MR. WUBBEN: If not equal --
16 JUDGE AGIUS: You did, because I don't remember myself giving the
17 Defence summary or points --
18 THE REGISTRAR: Just the presentation, the PowerPoint
20 JUDGE AGIUS: But that should an aide-memoire for the Trial
21 Chamber, not exactly an exhibit. I mean it's --
22 MR. JONES: Purely so that the public can later follow --
23 JUDGE AGIUS: Yes, I take your point but it's not necessary.
24 However once yours has been given already an exhibit number, let's give
25 there an exhibit number as well. So you please tell me.
1 THE REGISTRAR: It will be P563, Your Honour.
2 JUDGE AGIUS: So this will be P563. Yes, I take it that you will
3 be dealing with the introduction. Ms. Sellers and Ms. Joanne Richardson
4 will have a duet together dealing with the crime base and command
5 responsibility. Mr. Gramsci Di Fazio -- or crime base counts 3 and 6,
6 command responsibility again regarding counts 3 and 6, and general defence
7 of necessity, in the hands of Jose Doria, and individual responsibility as
8 regards counts 5 and 6, Mr. Wubben, and the concluding remarks,
9 Mr. Wubben.
10 Yes. Let's proceed.
11 MR. WUBBEN: Thank you, Your Honour. You already took the floor
12 and a part of my introduction away.
13 JUDGE AGIUS: Yes, exactly. I stole two minutes from you, but --
14 MR. WUBBEN: It was not unlawful, Your Honour, so I won't speak
15 about stealing it, and I thank you for it. I appreciate it. The
16 Prosecution, Your Honour --
17 JUDGE AGIUS: It was done intentionally, Mr. Wubben.
18 MR. WUBBEN: Your Honours, the Prosecution rested its case on
19 Tuesday and submits that there is sufficient to proceed with the case as
20 alleged in the indictment against the accused, Naser Oric. In its
21 submission yesterday, the Defence did not address the nucleus of evidence
22 adduced. The case is to show that the accused Naser Oric has been a
23 commander of the Srebrenica armed forces and the subregion in the period
24 1992, 1993, of the indictment and that under his command, responsibility,
25 crimes has been committed such as wanton destruction of villages and
1 plunder of property related to five attacks and killings and cruel
2 treatments of prisoners, as well as that he planned, instigated, ordered
3 or aided and abetted wanton destruction and plunder related to three of
4 the five attacks mentioned. The Prosecution's evidence was not, as
5 pleaded in the indictment, accusations that civilians steal food to feed
6 themselves, as suggested by the Defence yesterday.
7 The Prosecution's case is not a selective criminal forum to judge
8 cases to please political interest. The Prosecution submits that justice
9 should be done in this case and other cases irrespective of the religious,
10 ethnic, or national background of the victims or the accused.
11 These are the considerations that drive the Prosecution case
12 against Naser Oric.
13 The result of war crimes is the suffering. Your Honours, it
14 should be clear that civilians suffer from the wanton destructions of
15 their homes and the plunder of their properties. Those are great losses
16 to overcome. Murder and cruel treatment of detainees are a serious war
17 crime. Each of these forms of suffering are prohibited by national
18 criminal codes, international treaties, and customary law. Other
19 atrocities committed in Srebrenica during the very armed conflict that is
20 the background of the present case have been investigated and prosecuted
21 by this Prosecutor and adjudicated by your fellow trial and appeal
22 chambers. Convictions were the result of it. The present case brings to
23 justice the crimes committed against Bosnian Serbs in Srebrenica and
24 surrounding municipalities in 1992 and 1993. For that, Your Honours, the
25 evidence clearly demonstrate that Naser Oric has a case to answer.
1 I give now the floor for the second chapter to Ms. Patricia
2 Sellers. Thank you.
3 JUDGE AGIUS: Yes, Ms. Sellers.
4 MS. SELLERS: Good morning, Your Honours. Good morning, learned
5 counsel. Your Honours, my submissions today will be brief and right to
6 the point. It will be a response to the submission by the Defence as it
7 relates to counts 1 and 2.
8 Yesterday, the Defence conceded the crime base that Dragutin Kukic
9 had been killed in the prison in Srebrenica. They also conceded that he
10 had been killed by a man named Kemo and that he had been beaten to death.
11 What the Defence raises was a question of mens rea of the crime of murder.
12 Now, they insist, under the Kupreskic standard that that death had to be
13 premeditated, intentional. Your Honours, I will just briefly state that
14 the Kupreskic standard, if you take that standard, although there are
15 others that have superseded.
16 JUDGE AGIUS: I will dispense you from having to deal with whether
17 we ought to take as one of the requirements premeditation. I can assure
18 you we are not going to take it now, neither now nor later nor ever.
19 MS. SELLERS: Your Honour then might I just quickly move on to say
20 that the mens rea has been not only completed by the acts of Kemo but
21 substantiated by the testimony of Mr. Nedjeljko Radic who he himself
22 received beatings with the same pieces of wood that he stated measures 80
23 centimetres. The beatings that were inflicted upon him caused his ribs to
24 be broken, caused him severe pain. Whether asked was the beating
25 administered to Mr. Kukic of the same force or greater, he said it was
1 even greater. Your Honour, I believe that the mens rea, whether it's
2 intentional or this person was caused serious grievous bodily harm has
3 been completed.
4 I will now move on to the next part of my arguments, if you
5 please, and that is the question of subordination. The Defence has raised
6 the issue that given that the crime has been committed, given that Kemo
7 did kill Mr. Kukic, that the Prosecution's evidence does not show that
8 Kemo was a subordinate. And in order to substantiate that Kemo was not a
9 subordinate, the Defence went to the testimony of Prosecution Witness
10 Hakija Meholjic and it said that Mr. Meholjic didn't know if Kemo was a
11 soldier, wasn't quite certain or if he was, who was his commander. Now,
12 the quote that the Defence showed us yesterday was incomplete. If one had
13 looked at that quote in its larger sense a bit more carefully, it was
14 clear that Mr. Meholjic said, "I did not have the possibility to learn
15 about any of the appointments because nobody was duty bound to inform me
16 about that. At the end of the war, Mandzo Mrki whose first name was
17 Ibrahim, if I'm not mistaken, I'm sure." This was his response as to who
18 was the commander of Kemo.
19 Further up in that same section, he says, "I don't know if he
20 belonged to anybody, he belonged to the Potocari unit." So we have the
21 Potocari unit, we have Ibrahim Mandzic, Mrki Mandzo, but we have more than
22 that on the record, Your Honours. I'm certain that you're familiar by
23 this time with P80. P80 is a document that both the Defence and the
24 Prosecution have shown witnesses, have placed into evidence, and have
25 substanture [phoen] to a large part. Now, without entering into any
1 discussion about authenticity or credibility, but about what is clearly
2 written on the document, I would invite you to look at P80. On the first
3 page, it talks about the formation structure of the Srebrenica OS armed
4 forces. Section 1, section 1 talks about the territorial organisation of
5 Potocari. If one were to go down merely three lines, we have the Pale
6 company. Kemo is often referred to as Kemo from Pale. Now, the Pale
7 company as part of the Potocari TO was commanded by Mirzet Halilovic and
8 it's also been commanded by Smazo Mandzic [phoen]. If one goes a bit
9 further down in that first section, I would say four lines from the bottom
10 of the first section, it also says the Budak company. Now, you can look
11 at Sanctions and you can see that the Budak company with 139 conscripts
12 was commanded by Ibrahim Mandzic. There is testimony on the record from
13 Mr. Nedjeljko Radic, our eyewitness to the murder that says that Kemo was
14 in uniform.
15 As one goes through the document of P80, it is certain, it is
16 clear, that the Potocari TO remains under the command of Naser Oric
17 throughout the relevant time period, not only of this indictment but the
18 relevant time period of the murder of Mr. Dragutin Kukic, and I would just
19 briefly refer you to page 4 of P80, the same document, midway through the
20 page. Once again we have the Potocari Brigade and under it the Pale
21 battalion based in Pale. If one went to other documents that we have
22 used, for example, P9, again the organisation of the Srebrenica forces and
23 the commander orders the formation of a brigade, Potocari Brigade, will be
24 composed of battalion from Pale. Now, the Defence also said, well, it's
25 an independent battalion, a brigade. It's one that doesn't come under
1 Naser Oric. And the document that they had used last week to show
2 Prosecution witness General Delic, if you look through it carefully, there
3 is not one mention that the Pale battalion or Potocari was independent.
4 But the Prosecution would say that there is evidence on the record that
5 makes us understand that this point is minutiae. Again looking at P80,
6 one sees through the progression of the development of the companies and
7 the battalions under the Srebrenica armed forces, that there are often
8 independent battalions.
9 I would ask you to look at page 6 of P80 where, under numbers 4,
10 5, 6, and 7, we have the independent Srebrenica Battalion, the independent
11 Sikirici Battalion, the Independent Belidj [phoen] Battalion, the
12 Independent Osmace Battalion, all subordinated to the Srebrenica armed
13 forces, in other words subordinated to Naser Oric.
14 So, Your Honours, we do have the mens rea, we do have a
15 subordinate, and then the Defence has asked us to really consider the
16 question, did Naser Oric have specific information that one of his
17 subordinates committed a crime? And therefore, he should be prompted to
18 punish the crime.
19 Now, I would direct the Trial Chamber's attention to the standard
20 set out for inquiry notice under the Blaskic appeals decision. It's not
21 specific information. If you would permit me to read the more correct
22 standard from what I would say right now is our Tribunal's highest
23 authority, it asks whether a superior has only information that is
24 available to him. They say, "A superior will be criminally liable,
25 criminally responsible, through the principles of superior responsibility
1 only if information was available to him which would have put him on
2 notice of offences committed by subordinates." It's not specific
3 information. And without belabouring the point, I think Your Honours are
4 familiar with the Celebici decision which basically is the first time that
5 we look at this concept of inquiry notice. The Celebici appeals decision,
6 as confirmed by the Blaskic appeals decision, says that you have to look
7 at a breadth of information. Among the information could be the character
8 of the perpetrator.
9 Now, there has been substantial evidence on the record about the
10 character of Kemo. There has not been one person who has come and not
11 said that this was a violent man. We have evidence on the record of his
12 participation in attacks where mutilations, bodily mutilations have
13 occurred. We have other evidence on the record that speaks about Kemo
14 being out of control. That is information available to a commander in
15 terms of having a subordinate like that near prisoners of war, persons
16 hors de combat or detainees who at a minimum are to get humane treatment.
17 But I would ask Your Honours, even given the well known reputation of the
18 character traits of Kemo, a violent erratic person, that Mr. Oric had
19 other information. And that information was available to him. First of
20 all, he goes to the detention centre and inquires about the death of
21 Dragutin Kukic. He knows the person is dead. The response he gets from
22 huddled prisoners is the heart attack. One could say, well he's alerted
23 to the fact that he has lost a prisoner of war, someone who could have
24 been valuable to be exchanged because those prisoners of war were held for
25 exchange purposes. And he could have inquired, where is the body? Maybe
1 I could exchange the body for Muslim soldiers alive or dead.
2 But he receives other information. He's informed by October 14th
3 that Mirsad Halilovic has beaten a prisoner to death. Now, Mirsad
4 Halilovic is the chief of police. He's beaten a prisoner to death. Naser
5 Oric knows who the prisoners are. And he know that is a prisoner has died
6 in prison. He could have asked those very same prisoners, who were still
7 present on October 14th, as other commanders have, asked the prisoners and
8 asked the rest of his personnel, his subordinates in the military police,
9 what happened? It appears that Misad Halilovic had beaten a prisoner to
10 death. The story would have come out, no it wasn't Mirzet Halilovic, it
11 was Kemo who beat the prisoner to death. There was inquiry notice,
12 information available to him upon which he could have acted.
13 And the information would have led him to the real perpetrator of
14 the crime. It was committed not by his subordinate, Mirzet Halilovic but
15 by his subordinate Kemo.
16 Now, returning just very briefly to this uncontrollable impulsive
17 Kemo. One has to go back to the quote of Hakija Meholjic because it said
18 in reference to Kemo, "He did cause problems, but when I appeared, I being
19 Hakija, all the problems stopped. He was not as brave as one may have
20 believed." And when one looks at the interview by Naser Oric and his
21 comments on Kemo, he said "he really wasn't that good of a fighter, a
22 little average." Kemo is a subordinate, could have been controlled,
23 should have been punished for the death of Dragutin Kukic.
24 Your Honours, I will now move on to cruel treatment.
25 The Defence again raised the issue on cruel treatment about well,
1 who were the people who committed the cruel treatment and I at this point
2 in time am talking about the first group of prisoners who came from
3 September 24th, 25th, after the Podrinje attack, and also Mr. Zikic who
4 came after the Fakovici attack, until they were released on October 16th.
5 So let's look at the subordinate relationship to the beatings during that
6 first period. We've already established that Kemo was a subordinate.
7 Nedjeljko Radic says that Kemo was there every time the beatings were
8 administered, subordinate present administering the beatings. The cruel
9 beatings that the Defence has conceded occurred. Who else was there?
10 Mrki. Mrki in a uniform. Mr. Nedjeljko Radic came back on the second day
11 of his testimony and said "Yes, I remember the Mrki, the uniform. He had
12 a uniform like Naser Oric, the one with the lilies, the emblems on it.
13 Yes he was in the room where the beatings always took place."
14 Who else beat the prisoners? Well, I would like the Trial Chamber
15 to look at a very brief selection of one of our exhibits, a video, that
16 will talk about another person who beat the prisoners.
17 I believe we are having a problem with the sound, Your Honour.
18 JUDGE AGIUS: I can't hear any sound.
19 MS. SELLERS: Neither can I.
20 JUDGE AGIUS: It's probably the sound level. I don't know.
21 Before when this happened, it was the sound level which needed adjustment.
22 Perhaps let's -- because I don't want this to deprive us of precious time,
23 Ms. Sellers. If you can just say it would this person is, we all know but
24 I think.
25 MS. SELLERS: Certainly, Your Honours and I will just --
1 JUDGE AGIUS: And which person does he refer to? That should be
3 MS. SELLERS: Your Honours, on this clip, the person we see has
4 been identified as one of the prisoners, Veselin Sarac [phoen]. He will
5 state on this clip that he was beaten by Mirsad Halilovic, the chief of
6 police, subordinate to Naser Oric. On the clip he will also state that he
7 was beaten, kicked with boots, during the interrogation in the police
8 station which served as the police prison. Subordinate of Naser Oric
9 inflicting cruel treatment.
10 Now, who were the other people that inflicted cruel treatment,
11 often described as soldiers, persons coming in. I would ask Your Honours
12 to give another consideration, that whoever the physical perpetrators
13 were, beyond the subordinates that we've identified including a
14 subordinate named Beli [phoen] who transferred one of the prisoners to the
15 prison from the Podravanje attack, who Mr. Zikic says, "I don't know what
16 Beli had against me." Maybe someone in his family was injured, or harmed
17 or killed in Fakovici, but Beli, that soldier, a subordinate of Naser
18 Oric, would come to the jail cell and beat him through the bars.
19 But Your Honours, the other consideration is where are the
20 beatings taking place? We are in the prison of the military police. Now
21 there has been a lot of testimony concerning the military police and I
22 would just like to remind Your Honours that it is clear not only from the
23 testimony of Mr. Bogilovic, the military police were under who, they were
24 under Naser Oric, when Mirsad Halilovic was transferred under the
25 supervision of Mr. Bogilovic, a civilian police person, "Well, did the
1 whole military police force go with you?" "No, no, no. I only had Mirsad
2 Halilovic." The military police remained under the control of the army
3 subordinated to Naser Oric. But we could look at the documents, we could
4 go back to P4 and P4 dates from the 15th of June and what it says is at
5 the VP, the military police, the organisation is to be carried out by
6 Mirsad Halilovic, confirmed by Mr. Bogilovic, confirmed within the
7 interview with Mr. Oric. If one would go to P100 once again we see a
8 decision was made to form wartime military police, Mirsad Halilovic was
9 appointed the commander of this unit. And this is sent to Sarajevo and
10 Tuzla informing them that under the TO Staff of Srebrenica, Mirsad
11 Halilovic would form a military police unit. And if we went right past
12 the exchange date of this first group of prisoners and looked at P5, we
13 have an order coming from Naser Oric ordering the military police to carry
14 out an investigation in Krusev Do pursuant to one of the orders of the War
15 Presidency. Now, Mr. Bogilovic testified to that and stated that, yes,
16 Naser Oric was ordering the military police. He still had superior
17 responsibility via his command of the military police throughout the month
18 of October when the crimes occurred.
19 Now, my last point that I will addressing you with concerns
20 inquiry notice of the cruel treatment. Mr. Oric didn't know they were
21 being beaten up. He didn't know that cruel treatment was inflicted.
22 First of all we are led to believe that it wasn't Mr. Oric who came to the
23 prison, who came and saw the prisoners in the jail cell. He didn't see
24 Mr. Radic, Mr. Veselin Saric, he didn't see Mr. Zikic, he really wasn't
25 there and couldn't see Mr. Brankovic. The testimony is contrary to that
1 supposition. How do we know that Naser Oric came? Well, it's not a
2 question of these little important features, the beard, not the beard.
3 Veselin Saric knew Naser Oric from before the war. And told the other
4 prisoners it's Naser Oric.
5 So we know that the Naser Oric was present at the prison and saw
6 these prisoners, but inquiry notice. Okay, now, could he really see
7 anyone having blood coming out of their mouth, being broken, being
8 stooped? He had several opportunities. Not only have we been informed
9 via testimony that the prison cell was quite small. If one could not see
10 clearly, one could smell, one could see the forms huddled against the
11 floor trying to lean against the wall. But we have more than that.
12 Veselin Saric is taken out of the cell several times, not just for
13 interrogation but to speak via communication, Motorola or radio, group 2
14 to negotiate an exchange, taken out of the cell into another room next to
15 Naser Oric. It's a matter of fact, during that conversation, Veselin
16 Saric is made to say, "Oh, yes, I'm fine, they haven't beaten me."
17 Nedjeljko Radic has already informed us that by that time they've been
18 beaten often, continuously and severely.
19 That's information available to Naser Oric. But if we put that
20 aside, Naser Oric sees them all together on another occasion, takes them
21 out of the cell, and is in the room with the stove. This is just two days
22 before they are exchanged. That means this is the accumulation of all the
23 beating, all of the cruel treatment that they have been subjected to. And
24 he sits and he talks to them because a relative of his has been killed
25 during the war. He clearly sees them and he is in the company of Kemo and
1 Mrki and Mr. Oric strikes Veselin Saric, angry that he won't say that he
2 knows who Akif Ustic is. As a matter of fact, Veselin Saric talks about
3 that. If we could just go to this video clip. If the sound is working
4 now, it would be the second one.
5 [Videotape played]
6 MS. SELLERS: Your Honour, the point is almost too obvious. Naser
7 Oric sees the men beaten, broken, the day before they are exchanged. He
8 himself administers a blow. He has the information that is available to
9 him that these men are being beaten. The cruel treatment committed by his
10 subordinates was never acted upon by Naser Oric. Naser Oric has a case to
11 answer, in terms of the cruel treatment, and of the murders that relate to
12 that relevant time period in count 1 and 2.
13 Thank you.
14 JUDGE AGIUS: I thank you, Ms. Sellers. I now call upon
15 Mr. Di Fazio to deal with --
16 MS. SELLERS: Your Honour, Joanne Richardson will now finish
17 counts 1 and 2.
18 JUDGE AGIUS: All right. Ms. Richardson?
19 MS. RICHARDSON: Good morning, Your Honours. I would like to pick
20 up from where co-counsel Mrs. Sellers left off with respect to the
21 relationship Naser Oric had to the military police and others who were
22 involved with the prisoners that were kept in Srebrenica during the period
23 of 1993.
24 After the dismissal of Mirsad Halilovic, we have essentially a
25 restructuring of the military police. I would invite you to look at
1 Prosecution's Exhibit P11, which is a decision by the Chief of Staff of
2 the OS, and it specifically refers to the reorganisation. It describes
3 what the military police should now be formulated, with respect to
4 battalions and brigades. It also speaks to the fact that in the
5 Srebrenica town itself, the military police would have a platoon
6 consisting of three squads with nine members each.
7 The next exhibit confirms, Prosecution Exhibit 9, confirms in fact
8 that the battalions, as it pertained to the armed forces, were indeed very
9 detailed and organised, listing various areas. And this is an order that
10 was signed by Naser Oric. I invite you to take a look at Prosecution --
11 JUDGE AGIUS: What's the number of this exhibit?
12 MS. RICHARDSON: P9. The first exhibit I referred to was P11.
13 JUDGE AGIUS: Thank you.
14 MS. RICHARDSON: I would invite to you look at the next exhibit,
15 Prosecution's Exhibit number 12, again from the OS staff, Osman Osmanovic,
16 the chief. And this is a decision which essentially now names Akif Kurtic
17 [phoen] as the military police commander, and as well as stating that he
18 is authorised to make independent decisions with respect to the military
19 police. It also states that any changes must be reported to or made known
20 to the OS staff and the reasons regarding any dismissals, et cetera.
21 I should also point out that Akif Kurtic was not in now to the
22 armed forces of Srebrenica. He had been a member of the Territorial
23 Defence staff prior.
24 Next, Prosecution's Exhibit 38. I also want to point out that in
25 Prosecution's Exhibit P11, the military police is referred to as the
1 Srebrenica armed forces military police, the OS, excuse me, military
2 police. No indication that there are in any way connected to Tuzla or
3 Sarajevo but in fact belongs to Srebrenica armed forces.
4 Prosecution's Exhibit 38 essentially spells out one of the duties
5 of the military police, stating that any disobedience, referring to the
6 last sentence, any disobedience on the part of the soldiers must be
7 reported to the military police section commander, again confirming
8 Prosecution Exhibit P11 regarding the battalions and the manner in which
9 the military police was reorganised.
10 With respect to some of these duties, I invite Your Honours to
11 review Prosecution Exhibit P15 which spells out the patrol order detailing
12 the times that they are supposed to be patrolling, and this is signed by
13 the military commander Akif Kurtic. The second page of that document is
14 telling with respect to their obligations regarding the prisoners, stating
15 "at 1300 hours we took two prisoners of war to the OS Staff for
16 interviewing." Incidentally, I should note with respect to this document,
17 various police officers that are named in this document also appear in the
18 military log, Prosecution's Exhibit P458, which we refer to and used
19 during the Prosecution's case.
20 Page 4 of this same document details prisoners that were brought,
21 prisoners of war that were brought from Cerska by Ibrahim Mandza, and you
22 may recall a number of witnesses talked about Mandza and the fact that he
23 was involved in the exchange announcing to them in the prison that they
24 were about to be exchanged, accompanying them to the exchange. The
25 persons listed, I will get to when I talk about what was testified to by
1 the witnesses.
2 Page 7 of this report also details and confirms an obligation that
3 the police -- the military police had with respect to the prisoners.
4 Towards the middle of the page it states, the duty officer in the staff
5 was Esad Salihovic [phoen] and Harim [phoen] Hasanovic. Was the duty
6 officer in the hospital with the wounded prisoner instead of Rifat Ibric
7 [phoen]. And again, I invite you to compare the names that appear in this
8 report with those that appear in the military log. There will be no doubt
9 that in fact the military police was operating in Srebrenica and not only
10 was -- were they operating, they had a specific obligation with respect to
11 the prisoners.
12 Again, Prosecution Exhibit P13 talks about another obligation of
13 the military police, with respect to the armed forces. This is an order
14 from Naser Oric, all members of the Srebrenica -- all members of the armed
15 forces of Srebrenica, and he listed the various areas, are to be
16 transferred from their home units to the unit commander, to the unit
17 commanded by Desanovic Hasim [phoen]. This order is to be executed
18 immediately and those who fail to comply must be reported to the military
19 police. Again showing the direct link to Naser Oric, his communications
20 with the military police, and their obligations in Srebrenica.
21 Now, Your Honour, I would like to turn to the witnesses who
22 testified in this case, the witnesses who testified about their detention
23 in the police station in 1993 as well as in the prison. I first would
24 like to refer you to Ilija Ivanovic, whom you may remember testified at
25 length about the fact that he was in police station brought into the
1 police station by soldiers, and that during that period of time that he
2 was in the police station, he was beaten and kicked, he banged his head on
3 the radiator. He remembered that very well. He was rendered unconscious,
4 and other persons who were with him during that period of time were beaten
5 as well, and he named them, and those were Ratko Nikolic, Kostadin, which
6 is Kostadin Popovic, Mile Trifunovic, and Bogdan, he also named. He also
7 talked about the fact that he was interrogated and he believed at the time
8 that he was interrogated that he was speaking with a judge and in the
9 presence of that person, who he believed was a judge, were two soldiers
10 and he was also threatened and this man told him he was going to skin him
11 and put salt in his wounds. He was returned to the cell where the
12 beatings of not only Mr. Ivanovic but of all the other prisoners who were
13 there resumed with metal rods, with rifle butts, with wooden bats,
14 whatever they could get their hands on, Your Honour.
15 And I will turn to -- at the end of my submission or just before I
16 get to the end, refer you to various documents which confirms what he
17 testified to the Court about his interrogation. And throughout the
18 testimony of the various witnesses that appeared, they all confirmed that
19 they were interrogated. And we showed documents, some of which we will
20 refer to today, those -- the interrogation was primarily conducted by
21 Hamid Salihovic, the head of security and intelligence, and he was also,
22 of course, a member of the OS Staff. And just in brief, you may recall
23 that in fact that there was some sort of commission for an exchange with
24 the enemy that he assessed them, he made a determination, he made a
25 recommendation, and I will get to that in a moment.
1 Getting back to Mr. Ivanovic, he testified that he had been taken
2 to the hospital at a later point where he was kept with Rado Pejic and
3 others. But prior to being taken to the hospital, he testified that he
4 was transferred from the police station to the prison, where other
5 prisoners were brought in. Those other prisoners, namely Branko Sekulic,
6 Jakov Djukic, Dragan Ilic, Rade Pejic, and a female, Andja. He recalls
7 there was a total of 14 prisoners in all. He also recalls that there it
8 was a boy and a girl who you may recall testified. The boy referred to as
9 Branko, who is Branimir Mitrovic [phoen] and Svetlana Trifunovic whose
10 grandfather Milo Trifunovic was in the prison as well. And as I said
11 before, I will get to those documents which confirms the fact that these
12 prisoners were brought in from Cerska and if fact the Prosecution's
13 exhibit that I just referred to showing the reports from the police
14 officer details the same names that I just referred to from Cerska.
15 Now, Mr. Ivanovic testified that during the time this he was in
16 prison where they were beaten on a daily basis by guards, by other people
17 who would be let in by the guards, he testified that they were beaten all
18 the time, and he also testified that there was this one soldier who was a
19 guard who did not beat them and, interestingly enough, this person said to
20 him that "Listen, Chetnik," I'm quoting from the transcript, "Listen
21 Chetnik, even if it were for the whole of Srebrenica I would never hit
22 you, therefore you needn't be afraid of me." And Mr. Ivanovic remembered
23 this because there was in contrast to the others who were not like this
24 particular guard, the others who beat himself and the other prisoners
25 daily. He remembers, Your Honour, a particular incident involving Rado
1 Pejic, whose beard was set on fire, and he remembers that distinctly
2 because it is not something that one would forget.
3 This only lends to the type of incidents that they were subjected
4 to during that period of time. He talks about the fact that on one
5 particular occasion, he was taken to the receptionist room in the prison
6 located in the prison, and he remembers that there were up to seven men
7 present. He remembers Zulfo Tursunovic being present. He remembers Ahmo
8 Tihic, someone he knew before, was present. He remembers Ismet Odjic
9 [phoen] was present. Also Mandzic, whom he later met again as he was
10 being exchanged. What was most important about this meeting, in addition
11 to the individuals he named, was the fact that there was someone present
12 whom he later recalled from television and newspaper. He recalled being
13 before these men, bloodied, literally lying on the ground because he could
14 not stand, and as he described the fact that this was -- this beating had
15 been a result of days of daily beatings by the prisoners, he recalls the
16 fact that he was bloodied before these men, they simply stood there and
17 looked at him, while two of the other men said that they knew him.
18 There was one particular man in the room that day, Your Honour,
19 that he described, and he went to lengths to say at the time he didn't
20 know who this person was but he said when he returned to the cell, the
21 guards asked him, did you see Adela [phoen] or Naser or the boss? At the
22 time, he didn't know who they were referring to, but he testified, Your
23 Honour, that the individual who was in the room, this young man, was the
24 same person he later saw from television and newspapers, and he recognised
25 that person as Naser Oric. Naser Oric, one of the men who was in that
1 room, as he laid on the floor bloodied and beaten. And he was returned to
2 the cell where the beating continued of himself and the other prisoners.
3 It did not end. He was not released, nor were the others released. The
4 beating did not cease.
5 And as I stated before, he remembered being interrogated and the
6 Prosecution's exhibits will bear that out, and during the time that he was
7 interrogated, Your Honour, he recalls there was -- the person who was
8 interrogating him was wearing an olive drab jacket and he was interrogated
9 on more than one occasion. But during that interrogation, Your Honour,
10 the soldier who escorted him to the interrogation struck him on the head
11 with a knife in front of the very man that he was being interrogated by
12 and he said the person who was interrogating him didn't hit him or beat
13 him. It was the soldier. But the soldier in the presence of the man
14 interrogated him, struck him on the head with a knife causing him to
16 Mr. Ivanovic also talked about the fact that a number of the
17 injuries that he received was -- were in fact permanent and that as a
18 result, he is disabled to this very day. He also recalls other particular
19 incidents where girls were brought in or pieces of fire -- pieces of paper
20 were lit so that they could see the guards or the other individuals beaten
21 him could see because at the time it was dark. So they were beaten at
22 night as well, and the light was provided by these pieces of paper that
23 were lit.
24 He also talked about Cane, Stanko Hrstic [phoen] who was a
25 disabled prisoner. He remembers him because he remembers the fact that he
1 was beaten repeatedly by soldiers, by the guards, who, when Cane would go
2 to the toilet would wander off because he wanted to go home and would get
3 lost and the soldiers beat him as a result. Something which lapped on
4 more than one occasion and they beat him --
5 JUDGE AGIUS: Ms. Richardson, I hate to interrupt you, but it
6 seemed to me it was conceded yesterday that the Defence does not contest
7 that cruel treatment actually did take place, and that killings with the
8 reservation that they made did take place, but particularly with regard to
9 cruel treatment. So I would suggest to you that you skip any details that
10 you have in mind to refer to prove by way of proving that this one or that
11 one or the other person or that other person were actually beaten, either
12 at the prison or in the police station, and concentrate on the 7(3)
13 responsibility that the accused is being charged with.
14 MS. RICHARDSON: I will tailor my submission with that in mind,
15 Your Honour.
16 JUDGE AGIUS: If you just restrict yourself to the Prosecution
17 alleges in the indictment that persons, individuals, from number 1 to
18 number 7 were beaten up in these two places, you can then move to say, we
19 have evidence to show that they were beaten up by X, Y, Z, or by unknown
20 persons and deal with the possible responsibility of Naser Oric, where the
21 perpetrators are known and where the perpetrators are unknown.
22 MS. RICHARDSON: Thank you, Your Honour, I will tailor my
24 JUDGE AGIUS: This is what is important to us rather than trying
25 to find out who was beaten and who was wasn't.
1 MS. RICHARDSON: Your Honour, I will tailor my submission with
2 that in mind.
3 JUDGE AGIUS: Otherwise feel free to expand and reduce however you
5 MS. RICHARDSON: Thank you, Your Honour. Please feel free to
6 interrupt me if I'm not following Your Honour's instructions in that
8 Next I would like to refer to one of the prisoners that died in
9 the prison, Kostan Popovic who is listed in our indictment as having been
10 killed in the prison. As I said before, Mr. Ivanovic testified that they
11 were all beaten. He remembers Mr. Kostadin Popovic, known as Kosta and
12 Kodjo [phoen] as well, and the Prosecution submits that in addition to
13 Prosecution's Exhibit which indicates that Mr. Popovic actually did die,
14 Mr. Ivanovic testified that at the time that Mr. Popovic died, he was
15 beaten just before, as they were beaten on a daily basis, not only
16 Mr. Ivanovic but Mr. Ratko Nikolic as well, that people came, two men came
17 to the prison where they placed Mr. Kostadin Popovic's body and it was
18 wrapped up. Something was written down on a piece of paper. And he was
19 taken away. Incidently, Mr. Popovic was also interrogated by Hamid
20 Salihovic and we can show that via Prosecution's exhibit P46.
21 Another individual that died in the prison was Milisav Milanovic,
22 also known as Mico from Sase. Mr. Ivanovic also testified that Mr.
23 Milanovic was beaten and he died as a result, with the very same procedure
24 taking place where individuals came to the cell, he was wrapped, and a
25 piece of paper was written down and placed in his pocket.
1 You may recall, Your Honour, that Mr. Popovic's son testified,
2 Nikola Popovic, testified and identified the body of his father, also
3 stated that when his father's body was being examined by Dr. Stankovic,
4 that there was a piece of paper with the name and information about
5 Kostadin Popovic and the fact that he had been in prison in Srebrenica,
6 confirming in fact what the other prisoners had said about this piece of
7 paper. Next --
8 JUDGE AGIUS: One moment.
9 [Trial Chamber confers]
10 JUDGE AGIUS: Yes. I'll discuss this with Judge Brydensholt and
11 Judge Eser as I discuss everything else, and we are going to try to make
12 your life much easier, Ms. Richardson. We are exempting you from the need
13 to indicate to us evidence that there is in this case tending to prove the
14 death or the killing of all the persons mentioned in the indictment with
15 the exception of Bogdanovic, whom you concede there is no evidence, and
16 with the cruel treatment of all the persons mentioned in -- for the
17 purpose of count 2, with the exception of Milevic [phoen] or whatever the
18 name is that you conceded earlier on this morning there is no evidence
19 about. Whatever. I mean, I'm sure she knows the name. I'm hopeless at
21 All you need to concentrate about is whether the rest that is
22 required under the law for the purpose of the rule 98 bis exercise only,
23 as it relates to command responsibility, 7 -- under 7(3), and that's it.
24 Make the submissions on those and skip all submissions tending to prove
25 who was killed or who was beaten up. I think I'm making the position very
1 clear. I mean those of course will be extremely valuable points that will
2 need to be considered later on but for the time being, we are not going to
3 enter into the question whether there is enough evidence to prove that a
4 person who is known to be dead was actually killed, et cetera. I mean
5 that's -- we -- I think we are making the position very clear. That
6 doesn't come in the Rule 98 bis. We have ambivalent and sometimes dubious
7 evidence, but that's something that until now is not important. Later on,
8 it might become extremely important. Later on we might well come to the
9 conclusion that you have got evidence with regard to a few but not to all.
10 Or to none, for that matter.
11 MS. RICHARDSON: All right. Your Honour, then I'll be brief.
12 JUDGE AGIUS: Yes: We are interested in the following. Is there
13 evidence that beatings and killings took place in both places?
14 MS. RICHARDSON: Yes, Your Honour.
15 JUDGE AGIUS: How do you submit or maintain that Naser Oric should
16 be held criminally responsible under 7(3) for both the killings and the
17 cruel treatment, both as -- both those committed in the police station and
18 those committed in the prison? Submissions with regard to alleged
19 knowledge and submissions with regard to alleged failure to prevent or to
20 punish. That's what we are interested in.
21 MS. RICHARDSON: Fine, Your Honour. With that in mind, I would
22 move to the next witness with respect to what Naser Oric knew about the
23 prisoners and just briefly refer you back to the testimony of Mira
24 Stojanovic, the wife of Slavoljub [phoen] Filipovic. There was testimony
25 from Mr. Okanovic and Mr. Filipovic about the fact that they spoke to
1 Naser Oric via radio about the fact that his wife and the children were
2 being held prisoner in Srebrenica. There is a document, Your Honour, that
3 I'll refer to in a moment with respect to that fact.
4 But perhaps I should also point out to Your Honours the testimony
5 of Pyers Tucker who stated that when he and General Morillon met with
6 Naser Oric in Srebrenica, Naser Oric was directly asked whether or not he
7 was holding prisoners and Naser Oric did not answer the question. In
8 fact, he said, "Yes, taking prisoners is not practical and we don't do
9 it." When General Morillon asked him whether he was holding prisoners a
10 couple of times he never responded to the question. Lo and behold,
11 though, a few days later, Colonel Tucker testified that Naser Oric drives
12 up in a Mercedes, which I'm sure you will recall, and leads them to the
13 area of the PTT building where he goes in and later on, immediately
14 thereafter, a prisoner is brought out, and that Colonel Tucker said, and I
15 quote, "The man looked like the Jews who were rescued in 1945 from the
16 German concentration camps. His arms were like sticks, his stomach was
17 completely shrunk. He was unable to stand, unable to speak." And although
18 after that incident, Your Honour, clearly Naser Oric knew that there were
19 prisoners there, the other prisoners remained and, again, you indicated
20 there was not necessary to go into who was killed in the prison, but I
21 would just point out that following that incident other prisoners remained
22 behind and they succumbed to the beatings in the prison and they were --
23 they were killed thereafter.
24 Let me submit to Your Honours with respect to -- that is with
25 respect to knowledge, and of course, Naser Oric was also aware, as
1 Mrs. Sellers pointed out, that there were prisoners that were held in the
2 prison, in the months before 1992. He as aware of how they were treated.
3 He observed them firsthand, and I should point out that the female
4 witnesses testified in regards to whether or not Naser Oric had actual
5 knowledge in 1993, the female witnesses testified that Zulfo Tursunovic
6 visited the cell very often and he asked about why it was that the male
7 prisoners looked beaten and bloodied. The male prisoners themselves
8 testified to that effect. Zulfo Tursunovic, close associate of Naser
9 Oric, a member of the OS staff, in fact based on the interview by Naser
10 Oric he was placed in charge of the prison.
11 And I will just refer you to tape 3. This is page 4 of 27. Naser
12 Oric in response to the role of Zulfo Tursunovic, Naser Oric stated that
13 the man had absolutely no high education at all but he had been in various
14 prisons for 14 years and knew and had spent quite a lot of time with
15 lawyers and had some kind of idea about how they worked. He also knew
16 about things which -- how things were supposed to function in the prison,
17 what prison is supposed to look like. He spent 13 and a half years. He
18 knew how guards were supposed to behave towards prisoners and how
19 prisoners were supposed to behave towards guards. I submit, Your Honour,
20 Zulfo Tursunovic, in fact, on his very -- almost daily visits to the
21 prison was very much aware of the state of the prisoners, Naser Oric very
22 much was aware based on his own words that Zulfo Tursunovic had been
23 visiting the prisons and he should have been informed or should have
24 inquired at least as to the condition of the prisoners. And again with
25 respect to Hamid Salihovic, the person who was the chief of security and
1 intelligence, interrogating witnesses -- excuse me, prisoners, Naser Oric
2 being fully aware that this interrogation was going on of the prisoners
3 and he said as much with respect to the role of Hamid Salihovic, what was
4 his job, whether it was his job to inform Naser Oric of the status of the
5 Serb soldiers, if he maintained information. Naser Oric responded, "Well
6 of course," as he was one of the officers or one of the people who had
7 some kind of military knowledge and a man who had been the head of the
8 police in Srebrenica before the war and he's a man who knew the system of
9 investigation. It's logical he would have asked the questions in the way
10 he thought they should have been asked, clearly aware, Your Honour, that
11 Hamid Salihovic had been interrogating prisoners knowing fully well that
12 prisoners were kept in Srebrenica.
13 And I should go next of course to what Naser Oric observed himself
14 and I already talked about the fact that he saw the condition of
15 Mr. Ivanovic, he saw the condition of Pejic as he was removed and I would
16 submit to you that this was not just inquiry notice, this was actual
17 knowledge and notice of the condition of the prisoners at the time. With
18 respect to whether or not he was the commander of the military police,
19 Your Honour, I submit that you look again, review the military log, the
20 memo pad, the memo pad this states that the military police belongs to
21 the -- excuse me, the military police belongs to the military, not to the
22 War Presidency. When Naser Oric was asked whether or not what his
23 relationship was to the military police in the interview, when he was
24 asked, "Is the military police a branch of the military under which -- of
25 which you were the commander," he said "Yes."
1 JUDGE AGIUS: Sorry to interrupt you again, Ms. Richardson, but
2 this applies to you, to Mr. Di Fazio, to Mr. Doria later on, there is
3 evidence tending to show what you're saying, there is evidence tending to
4 show differently. That being the case, we are definitely not going into
5 the question of what was the proper placement of the military police at
6 the time, not for the purpose of the Rule 98 bis. So take it that you
7 don't need to go into any details or any argumentation or submissions to
8 prove to us what was the proper standing of the military police within the
9 structure, if at all, existing at the time. Keep in mind that there is
10 evidence for and there is evidence against. And that we will decide later
11 on obviously.
12 MS. RICHARDSON: Thank you, Your Honour. Let me sum up by saying
13 this: The evidence shows that there was a connection, that there was a
14 superior subordinate relationship, that Naser Oric did in fact have with
15 the -- not only the military police who were directly involved with the
16 prisoners, guarding them, as well as from the very moment they arrived in
17 Srebrenica, at the police station, as well as at the prison. This
18 relationship as well extends to Hamid Salihovic who interrogated the
19 prisoners and it extends to Zulfo Tursunovic, and with respect to, again,
20 knowledge, Naser Oric had actual knowledge. There is a case to answer
21 with respect to 1 and 2. He visited the prisons as well as his
22 subordinates were involved. Thank you.
23 JUDGE AGIUS: Thank you. I think now it's Mr. Di Fazio's turn.
24 Would you come in front, Mr. Di Fazio, or do you prefer to stay where you
1 MR. DI FAZIO: I'm happy to stay here. I just need the lectern,
2 that's all.
3 JUDGE AGIUS: Yes. Yes. The Trial Chamber would have course be
4 very much interested in hearing what you have to say with regard to the
5 other two crimes, wanton destruction and plunder and the elements. With
6 regard to the evidence, again, please do not waste your and our time to
7 tell us which villages were attacked and when, and which villages had
8 houses destroyed, et cetera. Concentrate on whether the houses destroyed
9 in any particular village satisfy the -- one of the elements required, in
10 other words whether we are talking of significant or insignificant wanton
12 I know that the question of necessity is going to be dealt with by
13 Mr. Doria and when you come to plunder, again, I mean we don't need
14 submissions to tell us that there were people taking food, livestock.
15 Perhaps you can concentrate on the importance or non-importance of the
16 killing of the pigs and the taking away of things that are not necessary
17 for one's livelihood, like food and clothing, given the circumstances.
18 And concentrate on other matters. Also you need to address the question
19 of civilians that were supposedly taking part in this alleged plundering,
20 and how the accused may or may not fit in when the evidence shows that it
21 was civilians and not military fighters or soldiers - call them whatever
22 you like, so that I do not get into the merit of that - who were under his
23 control directly or indirectly. Did I get through to you?
24 MR. DI FAZIO: Yes, you certainly did, if Your Honours please.
25 JUDGE AGIUS: [Microphone not activated] ... five minutes, so
1 perhaps you can introduce the subject and then continue afterwards. If I
2 have created problems for you please come forward and tell me.
3 MR. DI FAZIO: I don't think so, but I'll -- perhaps if I just do
4 my introductory --
5 JUDGE AGIUS: Yes, that's what I think you ought to do.
6 MR. DI FAZIO: The issues that you've raised and extract them from
7 the submissions I had prepared.
8 JUDGE AGIUS: All right, thank you.
9 MR. DI FAZIO: Thank you. If Your Honours please, just by way of
10 law first, I certainly don't intend to belabour these points. There is
11 not much in the way of controversy as far as the plunder and destruction
12 is concerned. But the requirements under Article 3(B), of course, require
13 destruction. The Prosecution submission is that it is sufficient - and in
14 this case of course we are dealing with villages and hamlets - it's
15 sufficient if we can demonstrate to you that there is evidence of part of
16 a village having been destroyed. That is the Prosecution's submission and
17 that's the way I'm going to proceed to evaluate the evidence in order to
18 establish a case to answer. Furthermore in this particular indictment,
19 there is no reference to devastation in the indictment at all so that any
20 differences that might exist between wanton destruction and devastation,
21 if they exist, are not matters that are going to have to trouble you. The
22 indictment doesn't use that expression that is contained in the Statute.
23 So devastation is not something you have to worry about.
24 JUDGE AGIUS: Yes, that's how we were looking at it in any event.
25 MR. DI FAZIO: Thank you. The -- another element that needs to be
1 proved of course, is that the destruction is wanton. If Your Honours
2 please, the wantonness is a matter that is determined not just by the
3 scale and extent of damage but the manner in which it is damaged -- in
4 which the damage is inflicted.
5 And the Prosecution's submission is that that element should not
6 trouble you, as the evidence in this case demonstrates that the torching
7 of the structures, the buildings and so on could only have been deliberate
8 and intentional and done with a view to inflicting damage in the absence
9 of good reason, military necessity.
10 And again, I say that issues of recklessness and negligence are
11 not going to trouble you in this case as well.
12 Then of course we come to the third element that's required for
13 destruction, and that's the issue of military necessity.
14 On the Prosecution case, the overwhelming bulk of the evidence in
15 this case shows that houses buildings and the structures that are so dear
16 and essential to farming communities up in the mountains of Bosnia where
17 these events took place were looted and put to the torch. They -- the
18 evidence does not show that machine-gun nests were being destroyed, that
19 ammunition dumps were being destroyed, that trenches where village guards
20 found themselves at night or during the day were being targeted and
21 destroyed. It overwhelmingly shows that structures that were used by the
22 local peasants in the area were being destroyed. And the Prosecution
23 submission is essentially that that evidence, that overwhelming evidence,
24 clearly demonstrates no conceivable military necessity for the destruction
25 of those individual houses, barns, farm houses, shops, gyms, et cetera.
1 But furthermore, the fury with which these attacks were launched against
2 these hill side villages and villages in the area is also evidence that
3 you can take into account in considering the question of whether or not
4 the Prosecution has demonstrated a lack or an absence of military
5 necessity. What the evidence does show in the Prosecution submission, and
6 it points only in one way, only one way, is that the principal object of
7 these attacks was the plunder and destruction of these particular houses.
8 If Your Honours please, that's briefly -- I need to finish a
9 couple of matters on military necessity but that very briefly is my
10 introductory comment insofar as destruction is concerned. I'll deal with
11 plunder later. I take it -- I had prepared to take you through the
12 evidence, not chapter and verse, but to go through each attack and
13 highlight the extent of damage.
14 JUDGE AGIUS: I don't think you need to do that. We have done
15 that already and we do not have problems there. Thank you, Mr. Di Fazio.
16 MR. DI FAZIO:. Thank you. What I'll do then is during the break
17 I'll reevaluate my evidence, cut out what's unnecessary, and that will
18 help us all get through today faster.
19 JUDGE AGIUS: All right. We'll have a break, shall we say 25
20 minutes or 30 minutes. It depends, whichever you prefer, Mr. Di Fazio, 25
21 or 30 minutes?
22 MR. DI FAZIO: That's fine, if Your Honours please. Perhaps
23 the -- I think I can deal with it in 25 minutes if you prefer.
24 JUDGE AGIUS: All right. 25-minute break starting from now.
25 Thank you.
1 --- Recess taken at 10.29 a.m.
2 --- On resuming at 11.01 a.m.
3 JUDGE AGIUS: Yes, Mr. Di Fazio.
4 MR. DI FAZIO: Thank you, Your Honours.
5 On the issue of military submission, yesterday Mr. Jones referred
6 you to the List Hostages Trial case conducted before the United States --
7 JUDGE AGIUS: Military submission or military if necessity? MR.
8 Di FAZIO: The name of the case is The List Hostages Trial case.
9 JUDGE AGIUS: Yeah, all right, no, no, because you said "military
10 submission." Oh, I see. I see what you mean. Okay. All right. I got
12 MR. DI FAZIO: And he quoted from that -- from that case. But he
13 preceded it, and I'll take you back to that in just a moment, but he
14 preceded that with the submission that the Prosecution's approach in this
15 case is to ask you to, and I quote, "assume, to guess, that any damage to
16 property was unlawful." In other words, that it was conducted in the
17 absence of military necessity. And then he took to you that case which
18 commented on what might or might not constitute military necessity.
19 I don't need to quote his direct words because it's made up in
20 various parts, but one of the matters that was said to be a relevant
21 inquiry for military necessity is whether the actions compel the complete
22 submission of the enemy. The destruction of these small hamlets and
23 villages, the destruction of their homes, the killing of their pigs and
24 burning down of the barns and haystacks and so on, in the Prosecution's
25 submission, can in no rational way be viewed as being directed in any way
1 to bringing about the complete submission of the VRS or the JNA, and at
2 the same time, as I said to you earlier, it points unerringly to another
3 motive behind these attacks.
4 So that's one aspect of the matters that he raised.
5 The other relevant matter that was referred to in that case was
6 military necessity might be demonstrated or shown or exist where you can
7 see that it's facilitating the safety of his forces or facilitating the
8 success of his operations. And the Prosecution submission is, on that
9 matter, that in this evidential scenario, there is a complete absence of
10 any evidence of the villages, the inhabitants of these villages, the
11 farmers and their wives and so on, posing any threat to the safety of the
12 attackers. All of the evidence overwhelmingly shows that they were going
13 about their normal business on the day of the attack. They were woken out
14 of their beds or they were preparing for lunch. So it's inconceivable to
15 see how burning a haystack or a barn or a house could in any way
16 facilitate the safety of his forces or the success of his operations.
17 In this regard, you may want to consider the role that the village
18 guard system had to play insofar as it relates to military necessity. The
19 evidence here was uniformly consistent through -- from all of the
20 Prosecution witnesses. The clear theme that came out in all of their
21 evidence is that these village guards were local creations, village
22 creations, community creations, obviously made up as the worsening -- as
23 tensions worsened in the former Bosnia, and the overwhelming purpose --
24 well, not overwhelming, the only purpose of these village guards was
25 protection of the local village and no other purpose. All of the
1 Prosecution witnesses told you that. That's their evidence. It may have
2 been challenged by the Defence, but as you know we are not here to discuss
3 the weight or the truth of that claim, but that's their evidence. It was
4 there to protect their villages.
5 And again, the overwhelming, clear evidence of all of the
6 witnesses was that these village guards were not sophisticated operations,
7 no military paraphernalia apart from their -- their light weapons. And
8 again the village guards operated in the main only at night, might go up
9 and sit in their trenches up above the village and look out over the
10 village and guard the place, but they operated mainly at night. During
11 the day these farmers were doing their normal business, carrying out their
12 farming business. So -- and furthermore, on the evidence that's been
13 presented by the Prosecution witnesses who described to you how the
14 attacks unfolded, how the attacks unfolded, it's pretty clear that the
15 target was not and never was anything to do with this village guard
16 system. They didn't attack anyone in the trenches first. They didn't try
17 and isolate men who were part of the village guard. They were just
18 indiscriminate. So it's -- in the Prosecution's submission, the village
19 guard system cannot play -- play no part in establishing the presence of
20 military necessity for the destruction of haystacks, barns, and so on.
21 So that's what I want to say to you on that particular issue.
22 The other elements, of course, that you need to have for -- to
23 establish these charges is the wilfulness of the destruction and the nexus
24 between the destruction and the armed conflict. I don't propose to
25 address you on that.
1 JUDGE AGIUS: You don't need to.
2 MR. DI FAZIO: It's pretty obvious from the circumstances of this
3 case, that's not going to trouble you in this case. So I turn to plunder,
4 3(E) and again I don't need to address you at length here. Issues of the
5 unlawful appropriation of property in armed conflict are fine questions
6 that aren't going to trouble you in this case. When the plunder took
7 place in this case, it's clear it was gone, and it was gone for good. And
8 there is no question that you can infer, in fact it's the only inference
9 available to you on the evidence, that there was an intention to acquire
10 possession as against the villagers who owned the property. And it was
11 clearly of sufficient value to them.
12 Now, the issue that you wanted me to address you specifically on
13 that arises in this context, that's the issue of food. And I'll deal with
14 you there.
15 I'll deal with that issue now. Excuse me.
16 Before I get into it I would just like to make one or two comments
17 about the manner in which the Prosecution -- the Defence dealt with this
18 issue. Mr. Jones posed the rhetorical question to you: "How can it be
19 criminal for the poor, desperate, starving civilians to steal food to feed
20 themselves and their children? Because that's the evidence of the
21 Prosecution. I know I would do it. I believe Your Honours would do it.
22 I think any decent human being would steal food to feed their starving
23 children, wives, and themselves. The Prosecution may require people to
24 starve or to be judged criminals but Your Honours should not do so."
25 The concerns of Mr. Jones might have been laid to rest if he'd
1 read the indictment just a little more carefully, in particular in
2 paragraph 35. If -- do Your Honours have the indictment? Yes.
3 JUDGE AGIUS: Yes. I was anticipating what you were going to say,
4 Mr. Di Fazio.
5 MR. DI FAZIO: The -- the -- well, you can see what the scheme of
6 the indictment is. It -- paragraphs 29 through to 36 deal with the crime
7 base but the issue of plunder is -- is dealt with in the main in -- it's
8 dealt with in paragraph 35. It says, in the course of these attacks in
9 eastern Bosnia between the dates, units under the command and control of
10 Naser Oric plundered Bosnian Serb property. Namely, and I stress that
11 word, namely, cattle, furniture, television sets. You contrast that with
12 the wording that is used in respect of destruction. In addition, Bosnian
13 Serb property, including buildings and dwellings, were unlawfully
14 destroyed. In the case of plunder, it's restrictive, in the case of
15 destruction, it's not.
16 JUDGE AGIUS: Provided that is clear, we are happy with that.
17 MR. DI FAZIO: That lays to rest the issue, and it reveals that
18 this case is not about --
19 JUDGE AGIUS: It's not about the taking of military hardware,
20 weapons, tanks, rifles, or whatever was mentioned during the testimony,
21 and you are also excluding food and clothing. All right.
22 MR. DI FAZIO: There is an exhaustive list, cattle, furniture,
23 television sets, just three items.
24 JUDGE AGIUS: Because much of the evidence that we received here
25 was evidence as to the alleged plunder, looting, of food, clothing,
1 military hardware.
2 MR. DI FAZIO: That's all relevant evidence because it shows
3 widespread plunder, but the enumerated items are there, and that's what
4 you have to be happy about before you can find -- in order to find a case
5 to answer.
6 MR. JONES: Your Honour, cattle is food, that's why.
7 JUDGE AGIUS: Yes, yes, but we come to cattle now. That's my next
8 question obviously.
9 MR. DI FAZIO: Well, cattle can be transformed into food. You can
10 kill it and you can eat it.
11 JUDGE AGIUS: But you don't do it on the spot.
12 MR. DI FAZIO: You don't do it on the spot.
13 JUDGE AGIUS: It's only McDonald's that do that.
14 MR. DI FAZIO: Yes, yes.
15 JUDGE AGIUS: So let's deal with cattle. I mean we've heard that
16 cattle was taken away and the submission by the Defence is that, given the
17 circumstances, this was precisely essential for survival.
18 MR. DI FAZIO: There are --
19 JUDGE AGIUS: Is your submission that cattle was not -- does not
20 fall within that category and that essentially it was wanton
22 MR. DI FAZIO: Essentially that is our submission because
23 otherwise it couldn't have been included in the indictment. It has to be
24 on the Prosecution's case otherwise you have to remove that in your
1 In any event, it's also an issue that arises in the context of
2 necessity, general defence of necessity that was raised by Mr. Jones
3 yesterday. My colleague Mr. Doria is going to deal with the overall issue
4 of necessity. So perhaps it's best if he deals with that particular
5 topic. But in any event, in so far as the general crime base is
6 concerned, for plunder, that's what I'm going to deal with and I will us
7 straight to you when -- examples of when cattle were taken.
8 So, there we have the submissions on what precisely you must look
9 at in order to find a case to answer the sorts of properties.
10 Can I just return briefly to the issue of large-scale destruction?
11 Mr. Jones yesterday submitted that large-scale destruction is necessary
12 and he complained that no inventory had been provided by the Prosecution
13 of damage.
14 JUDGE AGIUS: You can skip that, Mr. Di Fazio.
15 MR. DI FAZIO: My submission is very simple. You don't have to.
16 If you want an inventory you get it out of the words of the witnesses who
17 came here and told you of the extent of the damage.
18 If Your Honours please, throughout the evidence on my analysis of
19 the evidence of the witnesses, in each case, in each little place,
20 Fakovici and Radijevici, et cetera, in each little village and the
21 surrounding hamlets that you have mentioned in the indictment, the
22 witnesses spoke of what is plainly large scale destruction and at times
23 utter and total destruction. Witness after witness came back -- came here
24 and told you of going back to their -- their hamlets and finding nothing
25 but the foundations and weeds growing there where once it had been a
1 thriving community. Witness after witness spoke to you of seeing entire
2 villages ablaze and witness after witness spoke to you of seeing not only
3 entire villages ablaze but whole areas with villages ablaze. You remember
4 the evidence of one particular witness, just give me a moment --
5 JUDGE AGIUS: Again, I don't think you need elaborate on the
6 extent of the destruction that is alleged, and about what -- about which
7 we heard enough, I think, during the case for the Prosecution.
8 MR. DI FAZIO: Yes.
9 JUDGE AGIUS: I would rather concentrate on plunder again and my
10 questions to you is, I think, have you finalised concluded your
11 submissions on the taking away of cattle?
12 MR. DI FAZIO: Yes.
13 JUDGE AGIUS: All right. So my next question to you excluding the
14 taking away of cattle at least for argument's sake, you're left with
15 appropriation of some household appliances like televisions, et cetera.
16 MR. DI FAZIO: Yes.
17 JUDGE AGIUS: Is it your submission that there is enough in the
18 evidence which would justify the jurisdiction of this Tribunal to deal
19 with such a count?
20 MR. DI FAZIO: Yes. Yes. These were.
21 JUDGE AGIUS: What is the extent according to you.
22 MR. DI FAZIO: Does it rise to a sufficient level of seriousness?
23 Is that Your Honour's inquiries? Yes, the evidence of many of the
24 witnesses revealed large-scale plunder. It revealed houses being stripped
25 of their possessions. The witness who spoke about Bradjevina described
1 his house, I think it was Stanisa Stevanovic described his house being
2 emptied. His video recorder, his fridge, his -- and households goods
3 being taken out of the homes. These were simple peasant farmers, if
4 Your Honours please. To take away these possessions -- and not rich
5 people. To take away these possessions has an impact upon these people
6 that is fundamental in the Prosecution's submission, and to take away
7 their cattle, you take away their cattle, you take away one of the basic
8 building blocks of their community. If you destroy their pigs, you take
9 away one of the basic building blocks of their community. So it's not
10 just a question of the odd television set or the odd freezer being taken
11 away by an over-enthusiastic pillager. The general thrust of the evidence
12 is that the houses were being emptied, pillaged. The scenario that Mira
13 Stojanovic described when she drove back through Bjelovac in the yellow
14 Mercedes Benz, I don't know if you recall that evidence, as she was taken
15 back to Srebrenica to start her capture was of hordes of people all over t
16 place, all over the town, systematically stripping it. So you can't say
17 that the plunder was insignificant or consisted of the isolated television
18 set or cow.
19 JUDGE AGIUS: Yes but Mr. Di Fazio taking you back -- taking you
20 to task again because after all you yourself highlighted, emphasised, the
21 use of the name -- of the word "namely" in paragraph 35 of the indictment.
22 Just as that "namely" then restricts the category of objects allegedly
23 plundered such as cattle, you then say furniture and television sets.
24 MR. DI FAZIO: Yes.
25 JUDGE AGIUS: How much evidence do you submit there is showing
1 that furniture was taken away, and how much evidence is there according to
2 you as to the appropriation of television sets? There is definitely one
3 testimony regarding practical pillaging of one house.
4 MR. DI FAZIO: Yes.
5 JUDGE AGIUS: Definitely. One house. What about the rest? And
6 my question to you when you count everything, add up everything and put
7 everything in one basket recognition what are you talking about? Would it
8 justify the jurisdiction of -- or the intervention of the jurisdiction of
9 this Tribunal?
10 MR. DI FAZIO: Well, particularly --
11 JUDGE AGIUS: Forget cattle, because cattle s another -- I mean,
12 if you then put it together with cattle, if you're right in your
13 submission on cattle, then obviously the whole scenario changes, but if
14 you're not right in your submission on cattle, then what's your position
15 with regard to the remaining things?
16 MR. DI FAZIO: I understand. Your Honours, the Prosecution in
17 that case must rely on general descriptions of plunder. A number of
18 witnesses spoke of household possessions being taken. Now, the
19 Prosecution would submit to you that that's enough to -- that that must
20 imply furniture, as enumerated in the -- as set out in the indictment.
21 And that is --
22 JUDGE AGIUS: You chose the word furniture, not -- the Prosecutor
23 chose the word furniture, not we.
24 MR. DI FAZIO: Yes.
25 JUDGE AGIUS: Furniture means furniture.
1 MR. DI FAZIO: It does. It does, but household possessions
2 encompasses furniture. On any reasonable reading of the use of that
3 expression, household possessions, it must encompass furniture.
4 JUDGE AGIUS: But for example a television set is obviously not
5 being considered as furniture. Likewise I put it to you that a tape
6 recorder or a video recorder is also not furniture.
7 MR. DI FAZIO: Yes.
8 JUDGE AGIUS: So any evidence that there is relating to a tape
9 recorder or a video recorder or a kettle for that matter, it's not
10 furniture so why should we consider it?
11 MR. DI FAZIO: Well, yes, I agree that video recorder is not --
12 JUDGE AGIUS: I don't want to make your life difficult but I'm
13 just presenting you with some problems.
14 MR. DI FAZIO: I understand. If Your Honours please --
15 JUDGE AGIUS: Yes, sorry for the interruption, and I will try to
16 interrupt you as little as I can, Mr. Di Fazio, but these are obviously
17 problems that we are facing and that this is why we wanted to hear your
19 MR. DI FAZIO: Yes. If Your Honours please, the wording in the
20 indictment could have been different but there it is. And the fall back
21 position that the Prosecution must have, the only submission that it can
22 present to you on -- in this respect is that where witnesses spoke of
23 general plunder and the taking of household possessions, that must of
24 necessity have included furniture.
25 JUDGE AGIUS: That's an inference that you're asking us to make.
1 MR. DI FAZIO: It's an available inference to you. It's available
2 to you.
3 JUDGE AGIUS: That's your submission. All right. Go ahead.
4 MR. DI FAZIO: Households possessions must of necessity include
5 furniture. And the witnesses of course who we called weren't in a
6 position 12 years later and in the circumstances in which they found
7 themselves during the attack to be able to enumerate item by item what was
8 being taken from their houses. So that's the difficulty the Prosecution
9 faced, but it's overcome by the fact that they did refer to household
11 So if Your Honours please, can I just return now to the issue of
12 widespread destruction or is it the case that you don't want to --
13 JUDGE AGIUS: No. I don't think we need to hear about widespread
14 destruction. We have gone village by village, and took account of the
15 percentage of houses and sometimes the number of houses that were
16 indicated by various witnesses as having been torched, destroyed or
18 MR. DI FAZIO: Thank you.
19 JUDGE AGIUS: So --
20 MR. DI FAZIO: If I can --
21 JUDGE AGIUS: I think we've --
22 MR. DI FAZIO: Yes. I can -- just one further matter that I might
23 raise then in respect of plunder, and that's this. In going through the
24 evidence again, I looked at the evidence relating to plunder in
25 Radijevici, which is one of the small hamlets close to Fakovici, and I
1 couldn't find any significant evidence of any plunder there at all.
2 Certainly damage, destruction, but not plunder.
3 JUDGE AGIUS: That is one of the notes we have made too.
4 MR. DI FAZIO: So I don't think you need to have to trouble
5 yourselves with looking at evidence.
6 JUDGE AGIUS: Radijevici. We have it in --
7 MR. DI FAZIO: So that really just leaves me, then, I suppose, if
8 Your Honours please, with the issue of the soldiers and the civilians and
9 who was conducting what.
10 JUDGE AGIUS: I didn't mention it because I wasn't quite clear
11 whether it was going to be dealt by you or by Mr. Doria because 7(3)
12 responsibility seems to be under 4, which is under Doria. However, that's
13 your problem. I mean, if you want to make submissions now, make
14 submissions now.
15 MR. DI FAZIO: Perhaps we will share it to a certain extent. I'll
16 make the submissions that I want to, and then Mr. Doria can pick up
17 anything that, hopefully, that I leave out. I'm really just focusing on
18 the actual crime base itself, what happened on the ground in these
20 There is a lot of evidence in this case that indicates that the
21 fighters who attacked these villages themselves plundered and destroyed.
22 It's -- you can -- I can take you through it.
23 JUDGE AGIUS: Again, I don't think you need to because we have got
24 it itemised, village by village.
25 MR. DI FAZIO: Can I just take you to two or three points. I
1 won't trouble you for long on this because I want to highlight that. The
2 Defence would have you look at these attacks as some sort of maelstrom of
3 civilians and attackers falling, coming down over a hill and the
4 impossibility of identifying who is who. Well, the witnesses that the
5 Prosecution brought here didn't have -- didn't experience that difficulty.
6 Milenko Stevanovic is -- he came here and spoke to you about Ratkovici and
7 he said, page 1618, that he saw a combination of soldiers and civilians,
8 both of them. Not just civilians but what he called soldiers, taking away
9 cattle and other goods, cattle from the sheds. So he was able to
10 distinguish, and that is his evidence, and that is enough for a prima
11 facie case. If later you decide, oh, well, look he couldn't have possibly
12 said that to me, that's another matter. But as things stand that's his
13 evidence. So you've got soldiers taking away or fighters taking away
14 property from -- from him, from his village. Stanisa Stevanovic also
15 spoke about Bradjevina, and again he said that he could see soldiers and
16 civilians burning stables and taking away the cattle.
17 Sorry, would you just give me a moment? Oh, yes. Mr. Stevanovic
18 painted a picture of cooperation between soldiers and civilians. He was
19 asked, page 1494, "Who took away these items? Who actually physically
20 carried away the lighter items and the food?" And he said, "The soldiers
21 who entered the houses were taking things out. But of course they had
22 civilians who also helped them pick things out and carry these items off."
23 There you have it, that's prima facie evidence of soldiers, fighters,
24 intimately involved in the process.
25 Just two or three more on this because they provide good examples
1 of the sort of evidence that you can look at to conclude that there was
2 the fighters who were involved in the destruction and the plunder.
3 Slavoljub Zikic also provided you with evidence of the soldiers'
4 taking away his cow and his calf and also taking away items. Mira
5 Stojanovic, you remember she was the lady who was captured in Bjelovac
6 with her children and taken off to Srebrenica. As I said, she saw armed
7 soldiers all carrying backpacks and rucksacks on the road back to
8 Srebrenica as she was driving along in a car. But she saw both soldiers
9 and civilians, that's her evidence, walking around Bjelovac carrying bags
10 of looted goods.
11 And Ratko Nikolic, who also spoke of events in Kravica, I want to
12 quote from his evidence together -- specifically. He said he saw armed
13 men assisting civilians take things from the houses -- from their homes.
14 Question: "Did you see any items being removed from houses?"
16 "Who did that?"
17 Answer: "It was done by people who went to the villages to
18 collect things and they were escorted by soldiers with weapons. I was
19 hiding in a hollow tree and could see them taking my things away."
20 That's the fellow who got shot in the foot and didn't make good
21 his escape with his wife. He was captured. And then he continued.
22 Question: "In Opravdici did you see anyone taking possessions
23 away from the houses?"
24 Answer: "Yes."
25 Question: "At that time, the people who were taking possessions,
1 were they in company with armed men?"
2 Answer: "Yes."
3 So there is clear evidence in this case of just soldiers alone or
4 fighters taking plunder, taking goods, and there is other evidence, a lot
5 of other evidence in the case, that armed soldiers actually destroyed.
6 That is just about completes my submissions. I've got a few more
7 matters I want to raise so I won't be long. I just want to take you very
8 briefly, remind you of the evidence of Mira Stojanovic on the issue of
9 destruction, because she is a good witness to provide you with a snapshot
10 into the events in the -- during one of these attacks, Bjelovac, because
11 of course you remember she was captured and she was kept by the soldiers
12 who were actually fighting from her house and from another house that she
13 was taken to. And you recall her evidence regarding destruction, page
14 3384. She was leaving her house during -- in order to be taken to the
15 second place in Bjelovac where the fighting continued until nightfall.
16 And she was able to see this. In respect of the place that she had lived
17 in. As she was leaving, "What was said or done?"
18 Answer: "One of the soldiers said set the house on fire
19 immediately. We left and I didn't look back, because I didn't dare to.
20 But I suppose that's what they did. They set the house on fire."
21 Question: "Okay. You didn't look back. Tell the Trial Chamber
22 why you suppose that? Why do you suppose that? Did you hear anything or
23 see anything that makes you think or say -- think that or say that?"
24 Answer: "I suppose that because one of the soldiers said to the
25 others, burn the house immediately. It sounded like an order."
1 And she told you that as she drove through Bjelovac the next day
2 in the yellow Mercedes on her way to her confinement in Srebrenica, that
3 her house had been destroyed. So there you have it, direct,
4 clear-as-a-bell evidence of an order by soldiers for destruction during an
5 actual attack. And what was the possible reason for that destruction?
6 There was none. That is also evidence of not only soldiers directly
7 participating in destruction of dwellings but an utter lack of any
8 conceivable military necessity. This was wantonness at its worst. So if
9 Your Honours please, that just about wraps up my submissions.
10 The -- you find limited evidence of the destruction and the
11 plunder in the documentary evidence. I'm not going to take you to it in
12 any great detail. But P84, the memo pad, provides you with a little
13 snapshot into discussions on this topic conducted in Mr. Oric's inner
14 circle. Page 49 of P84, they were discussing some -- it's minutes of the
15 meeting on the 10th of January 1993, discussing an operation, military
16 operation, and it's -- from reading it, it appears to be excerpts of what
17 each man commented on at this meeting, and Zulfo apparently is quite -- is
18 requesting that priority be given to the operation towards Jezero or
19 Jezero. Unfortunately it's not clear, but the note here says, "it burned
20 down 42 villages." Then Ibro wants to participate in all operations.
21 Nedzad goes on too say that he participated in all operations. Safet
22 expresses his view that an attack on Bratunac would be better and Ahmo
23 says that he wants to go for Jezero, and Mr. Oric then says "the next
24 operation will be Jezero. Let us reach an agreement." Ahmo then goes on
25 it to talk of the whole operation being planned and says "We will mop up
1 the whole area, but the left wing is stronger than the right one where
2 they have more men." Skelani was burned down, and then Ahmo says, "Arson
3 should not be allowed before people from Skelani take back their
4 belongings". So it's not just the civilians who told you about the
5 destruction, the plunder.
6 If Your Honours please, this case is not about the pursuing or the
7 hounding of a commander of soldiers and his fighters who was struggling to
8 secure food for themselves and their starving families. I'd like to pose
9 some rhetorical questions. If that were so, if that were the reason, the
10 fundamental reason behind these attacks, why was it necessary to burn down
11 people's houses or barns or their haystacks? Why was it necessary to burn
12 a gym? Why was it necessary to burn down a village shop? Why was it
13 necessary to fire bullet holes into grave stones? Why was all that
14 necessary? It's about food and survival, as the Defence would have you
15 believe. Why was it necessary to slaughter pigs, kill them, if it's about
16 food and survival. Why was it necessary to take their cattle and their
17 household possessions? Why was it necessary to kill old men and women?
18 Why was it necessary to slice off the genitalia of a --
19 MR. JONES: Please, Your Honour, there is not part of the
20 indictment, this is purely inflammatory on my learned friend's part.
21 JUDGE AGIUS: We are not easily inflamed, Mr. Jones.
22 MR. JONES: There is a public following.
23 MR. DI FAZIO: Well --
24 JUDGE AGIUS: Yes.
25 MR. DI FAZIO: I don't mean to inflame. I mean to address you on
1 the issue of --
2 JUDGE AGIUS: Mr. Jones is right. You're saying rhetorical
4 MR. DI FAZIO: Yes.
5 JUDGE AGIUS: Well, I don't find at all rhetorical -- the question
6 is if you're trying to secure food for your family, your starving
7 population, why should you take cattle away? Of course you would take
8 cattle away.
9 MR. DI FAZIO: Yes, but what about those other matters that I
11 JUDGE AGIUS: Then stick take to the other matters.
12 MR. DI FAZIO: And they -- and they -- they demonstrate, if
13 Your Honours please, that there was a wilful intention to plunder and to
14 destroy on the part of these attackers. That was the purpose with which I
15 referred you to those matters.
16 JUDGE AGIUS: Yes. Where would you fit the slaughtering of the
17 pigs, Mr. Di Fazio? Under which count?
18 MR. DI FAZIO: It's clearly the destruction of Serb property. Not
19 only that, of course, the significance of the slaughter of that particular
20 beast, type of beast, is -- the significance of it is clear.
21 So --
22 JUDGE AGIUS: Yes.
23 MR. DI FAZIO: If Your Honours please, those are the submissions I
24 want to make to you on the crime base. The crime base provides you with a
25 solid platform for the plunder and the destruction. And I hope that the
1 Prosecution has allayed any fears that is this is a case about the
2 prosecution of a commander of -- that it's a case about the -- hounding a
3 man who was trying to survive. The Prosecution is well aware and has
4 never challenged any of the hardships that people suffered in Srebrenica.
5 The Prosecution is not focusing on that. It's focusing on those attacks
6 and with respect the crime base has provided you with a platform with
7 which to look at all of the other issues involved of command
9 JUDGE AGIUS: I thank you, Mr. Di Fazio.
10 Mr. Doria? I see here under point 4 that you will be dealing with
11 the general defence of necessity which of course is important to deal
12 with. Again, wanton destruction and plunder, please do not repeat any --
13 anything that has been stated by Mr. Di Fazio. And then elements I would
14 say as -- are criminal responsibility, I would imagine, and you are
15 dealing only with 7(3) command responsibility.
16 MR. DORIA: Yes, Your Honour.
17 JUDGE AGIUS: So don't try to take it away from Mr. Wubben who
18 will deal with 7(1) responsibility.
19 MR. DORIA: Exactly. Thank you, Your Honours. I would first
20 start by discussing the issue of necessity. The concept of necessity that
21 was brought yesterday.
22 This is because when Your Honour asked Mr. Jones if he was
23 considering making a submission to the effect that furniture could have
24 been also used for food or whatever, he made such submission to the effect
25 that furniture could be exchanged for food also.
1 JUDGE AGIUS: I didn't mention furniture to start with. And
2 secondly, Mr. Jones did not make a submission, as you put it. Mr. Jones
3 referred to the testimony of someone. I forgot who. I think it would be
4 Dr. Mujkanovic or whoever it was, when the question was put to him, and
5 that that witness according to Mr. Jones, had stated of course they would
6 take these other things. They would exchange them for food later.
7 MR. DORIA: Yes. What is our position is that as Mr. Di Fazio has
8 correctly stated, that we are not considering plunder, his plunder of food
9 as such but plunder of property which can be used by whatever purpose,
10 which does not interest us at this stage. We are interested in the crime
11 of plunder as such, which is prohibited under international law. And
12 then, as Mr. Di Fazio has focused on specific evidence which shows that
13 plunder was indeed acts which amount to plunder were indeed committed and
14 the specific items which we have charged in the indictment, like cattle,
15 furniture and other items which evidence shows clearly that were taken
16 away unlawfully.
17 As for the concept of necessity, first of all I would like to say
18 that the concept of necessity is -- has been until recently when it was
19 introduced in Article 31 of the ICC Statute much of a concept of
20 comparative law. It has been introduced in national jurisdictions but in
21 an international setting, it has been very often confronted with the
22 concept of duress. And commentators who have reviewed it carefully, and I
23 will address Your Honours and my learned colleagues, friends from the
24 Defence, through a book by Professor Cassese co-authored together by
25 Mr. John Jones, where Professor Kajan Bozve [phoen] very carefully
1 addresses, advises who's linked with necessity. Well, under there
2 essentially three elements in the concept of necessity. The first element
3 that there should be an imminent threat standing or continuing. The
4 second element there should be necessary and reasonable measures, and the
5 third element, that the intention should be to avoid a greater harm. This
6 is the concept of conflict of interests where the person who commits the
7 crime is pretending to commit a lesser evil.
8 Even if we admit that just for a moment this is not our submission
9 but if you admit just for a moment that the crime of plunder was committed
10 out of a necessity because people were starving, the problem is that if
11 you take food or you take furniture, those items which we charged, from
12 civilians, then you put those civilians in the same situation, and then we
13 will have a situation where the conflict of interests is changing life for
14 life, which is prohibited actually when we talk about necessity.
15 Necessity is about avoiding a greater harm in relation to the one that you
16 are pretending to -- that you commit.
17 Next, I would like to say that the concept of necessity, as my
18 colleague Di Fazio has already said, that it also fails when you see that
19 the plundering of property was accompanied by acts of destruction, acts of
20 killing, acts of maltreat and so on and so on, so there is no
21 justification for plundering because they -- the civilians were starving
22 or because the military were starving. There was no justification for
23 adding, destroying, wantonly destroying property, and killing and
24 committing other barbaric acts against civilians.
25 This is what I basically want to say about necessity.
1 Moving further into the question of command responsibility, again
2 I would like to emphasise that our case is not about plunder of food.
3 It's about plunder of property, which is a crime under international law.
4 No matter what is the purpose of the acts that were committed.
5 Concerning command responsibility, we already stated in our
6 pre-trial brief that there were three elements that we need to prove for
7 command responsibility, to attach. First of all that there was a superior
8 subordinate relationship, second that the accused knew or had reasons to
9 know that the crimes were committed, and the third that he failed to
10 prevent or punish those acts.
11 Concerning the concept of superior and subordinate relationship,
12 the Defence yesterday arose issues of whether the armoured units, armed
13 forces under Naser Oric were at all organised forces within the meaning of
14 international humanitarian law, and the Defence raises issues like absence
15 of uniforms, barracks, and ranks --
16 JUDGE AGIUS: Mr. Doria, I have to stop you here. That is a
17 matter that we are going to decide later on. Not now at this stage of the
18 Rule 98 bis because there is evidence, different kinds of evidence,
19 tending to prove different kinds of things. So skip that.
20 MR. DORIA: Thank you very much.
21 JUDGE AGIUS: Okay.
22 MR. DORIA: The Defence also raised the issue of VMS [phoen]
23 also. If Your Honours would like me to attach on that issue also on --
24 JUDGE AGIUS: Attach on whatever the situation was, whether they
25 were organised or not organised, what is there in the evidence that would
1 suffice for the trier of facts, trier of facts, to reach a verdict of
2 guilty later on? I mean it's -- if believed, obviously, I mean. It is
3 what we -- what you need to submit. What do we have at this stage?
4 MR. DORIA: Yes, Your Honour.
5 JUDGE AGIUS: To establish the superior-subordinate relationship.
6 MR. DORIA: That's why I wanted first of all to address these
7 issues, that we have evidence proving there was a command structure.
8 There was a chain of command, there was ability to control the forces,
9 there was ability to impose discipline. We have evidence showing that the
10 units under Naser Oric conducted sustained military operations in certain
11 instances were successful, like in the incidents in which we focus in our
12 indictment. And we have evidence suggesting that, as the Defence
13 conceded, and Mr. Naser Oric in his interview to the OTP also conceded,
14 that fighters were not actually the ones plundering, for example, but
15 civilians. Which means that the Defence and Mr. Naser Oric concede that
16 the fighters were interested in respecting the rules of war, and this is
17 also one of the conditions when we talk about organised armed forces, that
18 there should be a command and control, that they have the ability to
19 conduct sustained military operations, and they have the interest or the
20 obligation that they abide by the rules of international humanitarian law.
21 As for the argument --
22 JUDGE AGIUS: One moment, Mr. Doria. You mentioned three things,
23 command structure, okay, skip that. Then you said "ability to control the
24 forces." What are you relying upon by way of evidence in asserting or in
25 making that submission?
1 MR. DORIA: When I talk about ability to control force I'm talking
2 about the requirement of effective control, and Your Honour, I would
3 address you to the recent Blaskic decision.
4 JUDGE AGIUS: Please go to the evidence and direct us, address us
5 to that part of the evidence which, according to you, would indicate on a
6 prima facie basis of course, that the -- not only there wasn't only a
7 command structure but that there was ability to control the forces, and
8 then the next question that I will put to you is, again, where do we have
9 to go in the evidence to agree with you that there was also the ability to
10 impose discipline?
11 MR. DORIA: If Your Honour -- yes, I will address all these
12 questions, of course. Let me just finish the -- if Your Honour will
13 permit me.
14 JUDGE AGIUS: Yes, by all means.
15 MR. DORIA: Yes, the issue of levee on mass which was raised and
16 is very important to --
17 JUDGE AGIUS: Yes, definitely.
18 MR. DORIA: As I said the Defence raised the issue of levee on
19 mass and first of all we don't agree with such a proposition, and second
20 we submit that the Prosecution submitted even if there was a question of
21 levee en masse, levee en masse under international law cannot be extended
22 for long periods. If Your Honours may -- address you to the ICRC
23 commentary on paragraph -- on Article 4(6) of the Third Geneva
24 Conventions, it reads specifically that it should however be emphasised
25 that mass levy can only be considered to exist during a very short period,
1 during the actual invasion period. If resistance continues, the authority
2 commanding the inhabitants who have taken up arms or the authority to
3 which they profess allegiance must either replace them by sending regular
4 units or must incorporate them in its regular forces, otherwise mass levy
5 could not survive the total occupation of the territory which has been
6 tried -- which it has tried in vain to defend.
7 The Prosecution submits that indeed, if there was levee en masse,
8 levee en masse ended when the 20th of May 19 -- 19 -- 1992, the Srebrenica
9 armed forces were established. This you can find from -- this you can
10 find from P73, formation of TO staff, P76, order confirming Naser Oric's
11 command of Srebrenica TO staff of 27 June 1992. So the armed force, the
12 civilian armed forces were established on the 20th of May 1992 and
13 thereafter, and Naser Oric was confirmed by the army of Bosnia as
14 commander of these forces and therefore the Srebrenica armed forces were
15 integrated into the system, the chain of command of the Army of
16 Bosnia-Herzegovina. The chain of command went from the president of the
17 Presidency of the -- of -- of -- of -- of the Republic of Bosnia and
18 Herzegovina through the 2nd Corps in Tuzla and down to the Srebrenica
19 territorial forces.
20 Now I would address you, Your Honours, to P -- to Exhibit number
21 P114, a decision on organisation armed forces of the republic. P2, staff
22 -- Main Staff of the Armed Forces District Defence Staff, Exhibit P279,
23 formation of corps in zones under responsibility of the corps's command,
24 and whatever is mentioned Exhibit P73 and P76, confirming Naser Oric as
25 the commander of the armoured force of Srebrenica.
1 Your Honour has requested me to indicate very briefly what are the
2 indicatives of the -- the indicators of effective control that Naser Oric
3 exercised over the units who commit -- which committed the crimes. As I
4 would like to -- as I wanted to refer to the Blaskic decision, the
5 appeal -- the recent Blaskic appeals decision, it has been stated that the
6 indicators of effective control are a matter of facts, evidence of the
7 case, rather than substantive law. The Prosecution submits that these
8 indicators may include, also they are not restricted to them, to showing
9 that the commander was the one who planned the actions, that the commander
10 directly took part in the attacks, that the commander was in communication
11 with the units, that the commander participated in meetings in which the
12 results of the attacks were discussed. The Prosecution submits that if
13 the evidence shows that this has happened, then we can make a conclusion
14 that the commander was in effective control of the units which
15 participated in the relevant -- in the relevant incidents.
16 If Your Honour would like to -- I don't know if Your Honour want
17 the -- this evidence in particular in relation to each of the incidents or
18 generally. I could provide -- I have prepared either by incidents or just
19 generally, if you want, I could just provide some examples.
20 JUDGE AGIUS: Yes. In this part, I would rather keep my mouth
21 shut and invite you to give indications.
22 MR. DARIO: Okay, thank you.
23 MR. WUBBEN: Your Honours, please, may I intervene to support my
24 co-counsel? With a view to the booklets of the exhibits we gave, we
25 prepared also but we are still preparing to complete the binder supporting
1 the submission by Mr. Jose Doria, and we seek allowance to provide
2 Your Honours and the Defence later on this afternoon of such a copy.
3 JUDGE AGIUS: All right.
4 MR. JONES: May I, Your Honour, if that's merely either exhibits
5 which we've already seen or extracts from the transcript, then that's one
6 thing. Of course, as we know, these are oral proceedings and also they
7 are oral proceedings which will be concluded when we finish sitting today.
8 So certainly, if there is any sort of work product which is being
9 submitted after the hearing then we would strongly object because it may
10 be that the Prosecution will produce some table which will pur purportedly
11 explain what happened in each action. And, of course, then we would not
12 be able to respond. It will in effect be a written filing.
13 JUDGE AGIUS: Yes.
14 MR. WUBBEN: Yes, Your Honour, I can add to it. I understand the
15 concerns of my learned friend. We will provide it during the break.
16 JUDGE AGIUS: All right. Okay.
17 MR. JONES: I still may have reservations if it's a written
19 JUDGE AGIUS: We'll see. I mean, I haven't seen it, Mr. Jones.
20 So I reserve my position and that of the other two Judges. It's something
21 which we will need to discuss in any case.
22 MR. DORIA: Your Honour --
23 JUDGE AGIUS: Yes, Mr. Doria.
24 MR. DORIA: Yes, what senior trial attorney Jan Wubben wanted to
25 explain is that the example of the other colleagues that have already
1 submitted their portions of our -- this submission, I also have prepared a
2 binder containing the exhibits that could facilitate your understanding.
3 But I will be any way citing the numbers of the exhibits and this also can
4 facilitate because it will be on the record and can facilitate following
5 what I was saying.
6 In relation to -- I would go incidents by incident and I would
7 like first of all to pick up the first incidents, the attacks which
8 occurred in Ratkovici and Jezestica. Ratkovici was attacked on the 21st
9 and the 27 of June, and Jezestica was attacked on the 8th of August 1992.
10 Your Honours, we have evidence, you have given evidence to the effect that
11 the units that participate in the attack in those two villages were units
12 under the command of Naser Oric. For the attack of Ratkovici, the
13 following were the units which participated. Srebrenica TO, 3 Maj
14 Kragljivoda, Skenderovic TO. And Biljeg TO. Evidence confirming
15 participation of these units, you can find, Your Honour, on Exhibit P87
16 which was confirmed by witness Sead Delic, Exhibit P95, Exhibit P95,
17 Exhibit P94.
18 In relation to the incident, the attack on Jezestica, the units
19 which participated were Potocari TO, Sutjeska TO, Biljeg TO, Company Stari
20 Grad. Again, you can find evidence of this in Exhibit P94 and Exhibit
22 Your Honour, our submission -- I would like to emphasise here that
23 our submission is based in most of the case on circumstantial evidence.
24 In the Celebici, the Appeals Chamber said that a case based on
25 circumstantial evidence is one consisting of evidence of a number of
1 different circumstances which taken in combination point to the guilt of
2 the accused person because they would -- --
3 THE INTERPRETER: Could the speaker please slow down because the
4 interpreters do not have the text, thank you.
5 JUDGE AGIUS: Yes, Mr. Doria, please slow down for the future
6 because the interpreters very rightly so couldn't catch up with you.
7 MR. DORIA: Okay, thank. I will try --
8 JUDGE AGIUS: Yes, yes, but that was because he was reading.
9 MR. DORIA: In relation to those two incidents, also we don't have
10 direct evidence showing that Naser Oric was in command of those units. We
11 have circumstantial evidence showing that he was indeed in effective
12 control of these units. Naser Oric in his interview to the OTP, you can
13 find it in -- in the second interview that he gave to the OTP, tape 2, he
14 himself testified that for each of the attacks that were committed under
15 his command, they would have normally three meetings. One initial meeting
16 would be to plan. A second meeting to allocate responsibility, and a
17 third meeting to confirm responsibilities after reconnaissance work is
18 conducted by the respective units. Our submission, Your Honour, is that
19 these attacks followed a similar pattern of conduct which included
20 planning the attacks, participation in three incidents by Naser Oric, and
21 the evaluation of the results of the attack. Your Honour, you'll see from
22 my further submissions on the incidents of Fakovici, Bjelovac, and
23 Kravica, in which the accused not only planned but directly participated
24 in those attacks.
25 In relation to the incident in Ratkovici, you will see,
1 Your Honour, we have a combat report, P87, confirmed by witness Sead
2 Delic, which shows that units under command of the accused did indeed
3 participate in that attack.
4 In relation to the attack in Jezestica, we have one witness,
5 Miladin Simic, which confirms that the history with the head paraded by
6 Kemo in Srebrenica relates to the events that took part -- place in the
7 village of Jezestica.
8 Your Honour, our submission is that this -- when this incident is
9 confronted with the submission -- with the testimony of the witness that
10 confirmed that Muslim, as they called, Muslim forces or forces under -- of
11 the Army of Bosnia-Herzegovina have participated in that -- in that -- in
12 those attacks, when we confront with our submissions that Naser Oric was
13 indeed the commander of those units which participated in that attack,
14 Your Honours could address, could see this from Exhibit P80 which was
15 already mentioned here, it's the breakdown of the formation of -- the
16 formation structure of the army of Srebrenica. The only reasonable
17 conclusion is that -- that the attacks could not have been carried out
18 without the knowledge of the commander and could not have been carried out
19 without his control.
20 In relation to knowledge, was the accused put in knowledge in
21 relation to the crimes committed in those two attacks? Again,
22 Your Honour, I would like to address you to our jurisprudence, in
23 particular the Blaskic, and in particular to the Blaskic trial judgement
24 and Celebici trial judgement, Kordic trial judgement, in which it was
25 stated that when we are proving knowledge we have two aspects. The first
1 one is knowledge which can be proven either by direct evidence or
2 circumstantial evidence, and the second aspect is knowledge which that can
3 be proven by providing information which was available to the accused but
4 which he refrained not to take -- deliberately refrained not to take.
5 Again I would like to emphasise that our case is not about vicarious
6 liability, it's not about negligent behaviour. It's about deliberate
7 behaviour. Information is available and the accused opts not to be
8 acquainted with that information.
9 In relation to circumstantial evidence, our jurisprudence is
10 relied on the final report of the commission of expert, which stated that
11 the following -- the following evidence can be helpful in concluding
12 whether there was information available to the accused. The first one,
13 the number of illegal acts. The second, the type of illegal acts. The
14 third, the scope of illegal acts, the time during which the legal acts
15 occurred, the number and type of troops involved, the logistics involved
16 if any, geographical location of the acts, the widespread occurrence of
17 the acts the tactical tempo of operations, the --
18 THE INTERPRETER: Kindly slow down for the interpreters.
19 MR. DORIA: ... illegal acts, the officers and staff involved.
20 JUDGE AGIUS: Slow down, please.
21 MR. DORIA: Okay, I'm sorry. The location of the commander at the
22 time. These are the type of evidence that, in combination, make -- will
23 help Your Honours to conclude that there should have been knowledge by the
24 accused of the acts committed.
25 Apart from that, witnesses have testified that the village of
1 Ratkovici was first completely looted and then burned down by forces under
2 the control of Naser Oric. Witness Gligic, for example, has testified
3 that the Muslim POW did confirm to him that lootings and burning were
4 ordered by Naser Oric personally. Bogilovic and -- witness Bogilovic and
5 Meholjic have testified that acts of looting and burning were common
6 knowledge in Srebrenica since the population was starving. At least if
7 Your Honours go to Exhibit number 80 -- P84, you'll see that at least once
8 during the debriefings, the issue of the need to stop acts of wanton
9 destruction and plunder was raised. In order from the said corps
10 delivered by -- to Srebrenica on the 28th May 1992 is Exhibit P29. Also
11 attested to the effect that TO units were to prohibit acts of wanton
12 destruction and plunder.
13 We can say that the this order again conforms to the data entered
14 in the memo pad of the Srebrenica TO, Exhibit P84, in which the TO has
15 requested from the 2nd Corps that they provide them the list of all the
16 available rules that are applicable. Naser Oric himself in his interview
17 to the OTP also has confirmed that acts of plunder and wanton destruction
18 were taking place but again he justified it with what he called the law of
20 Again, the Defence yesterday also have conceded that these acts
21 might have occurred but again they justified it by the justification of
22 necessity. The Prosecution submits that where there is evidence that
23 tends to show that forces under command of the accused have indeed
24 participated in attack, and confirmation from witnesses and victims, that
25 acts prohibited by the law have indeed taken place, which follow the
1 similar pattern. That is sufficient to prove that the commander either
2 knew from circumstantial evidence that these crimes were committed or were
3 put on notice that such incidents might have occurred, however he
4 preferred not to prevent or punish, justifying this attitude by necessity.
5 The Prosecution submits that the number and type and scope of
6 illegal acts as well as the modus operandus of similar illegal acts is
7 indication that the accused was commander of the forces took part in the
8 operation, was aware of the crimes, but again with this awareness he
9 failed to either prevent or punish his subordinates.
10 In relation to means available to the accused to prevent or
11 punish, I would like to address it at the end because they are the same in
12 relation to the other incidents.
13 JUDGE AGIUS: Yes. I don't want Mr. Wubben to start feeling
14 alarmed that he might not have enough time to deal with number 5 because
15 the last half hour. How much time do you think you would require to wind
17 MR. JONES: Maybe 15 minutes.
18 JUDGE AGIUS: I would imagine so. So it's up to you, Mr. Doria
19 and Mr. Wubben, to organise yourselves because 15, 20 minutes before
20 quarter to 2, I will stop whoever is speaking from your side at the time.
21 MR. DORIA: Yes, Your Honour, I will try to be brief.
22 JUDGE AGIUS: No, it's -- if -- make sure that you don't leave
23 Mr. Doria -- Mr. Wubben in the lurch. That's all.
24 MR. DORIA: The next group of incidents is the one that occurred
25 in Fakovici -- the attack on Fakovici and surrounding hamlets on 5 October
1 1993, Bjelovac and Sikirici on 14th and 9th December 1992 -- I'm sorry,
2 Fakovici was October 1992. Bjelovac and Sikirici in December 1992 and
3 Kravica and Jezestica on 7 and 8 January 1993.
4 These incidents are -- I put them apart because these are
5 incidents where clear-cut Mr. Oric has participated. In relation to
6 Fakovici, the units which participated in this attack you already know
7 from our indictment, we put them, I only can see -- I only can say that we
8 tendered evidence, Exhibits number P95, P84, P94, showing clearly that
9 these were the units which participated in those attacks and were under
10 Naser Oric at the time when the events ...
11 Indicators of effective control in the attack on Fakovici, Naser
12 Oric participated in plans to attack Fakovici on the 3rd October. We can
13 see it from the memo pad, exhibit P84. Meholjic has testified about a
14 meeting that took place before the Fakovici operation that he and Naser
15 Oric both attended. Meholjic also states that Naser Oric was in Fakovici.
16 Naser was present when discussing the outcome of the operation on 7
17 October. Again memo pad, exhibit P84. Naser Oric also has confirmed in
18 his interview that he planned and took part in the attack on Fakovici, the
19 second interview, tape 3 and 4.
20 The attack was carried out is confirmed by the witness,
21 Your Honour, who you heard it from my colleague, and P94 and P95 and the
22 combat report, P -- Exhibit P88 confirm that the attack did indeed occur.
23 In relation to Bjelovac, again, the list of units which participated in
24 that attack are also from the indictment, I can only say that we tendered
25 evidence P84, P94, P95, showing that these are the units that indeed did
1 participate in those attacks.
2 Which are the indicators that we have showing that the accused
3 exercised effective control over those units? First, Naser Oric was
4 present and offered advice on 22nd November regarding the upcoming attack
5 on Bjelovac. He undertook to form an elite platoon. It's again from the
6 memo pad, Exhibit P84. The accused was present at the meeting of the
7 Srebrenica Staff on 10th December when the staff discussed the planning of
8 attack on Bjelovac. Again, from the Exhibit P84. The accused was in
9 charge of the combat operation during its execution. We can see it from
10 the combat report, Exhibit number P89. The accused was present when the
11 results of the attack on Bjelovac were discussed. Again it's from the
12 memo pad, Exhibit P84. And again the combat report, P89, also confirms
13 that the accused was the one responsible for the planning of the attack.
14 We have one witness, witness Mira Stojanovic who confirmed that she saw
15 the accused during the attack on Bjelovac.
16 And again, in his interview the accused confirms that he planned
17 and participated in that attack, second interview, tape 7.
18 In relation to the attack on Kravica and Jezestica, again the
19 units which participated in those -- in those attacks are known from the
20 indictments. We provided, we tendered evidence showing that this was the
21 case, and as these units were under the command of Naser Oric, Exhibit
22 P94, P95, P84, at least, and P88.
23 Indicators of effective control. Naser Oric was in charge of the
24 combat operation during its execution. Exhibit P88 is a combat report.
25 Naser Oric confirms in his interview that he participated in the planning
1 and operation, second interview tape 9. At the meeting of the Srebrenica
2 staff on 10 January 1993, the accused stated that the operation had been
3 carried out well and commended all participants. It's also from the memo
4 pad, Exhibit P84.
5 As for the knowledge, again we have the indicators of knowledge of
6 the crimes committed in Fakovici. We have --
7 JUDGE AGIUS: Aren't we repeating now, Mr. Doria, because I think
8 you have told us all this already about twice.
9 MR. DORIA: Your Honour, I was -- I was talking about the
10 incidents in which we didn't have clear-cut evidence of participation of
11 Naser Oric.
12 JUDGE AGIUS: You have been dealing with those for the last half
13 an hour, at least. You are referring always to the same documents. And
14 one moment you jump on giving us the impression that you are going to
15 prove to us how he had effective control and then you jump back to trying
16 to prove to us that he was not there but he must have known about it.
17 It's --
18 MR. DORIA: No, Your Honour. It was in relation to the first
19 incident. As I said, it was in relation to Ratkovici and -- and --
20 JUDGE AGIUS: But you made that distinction between those two
21 villages and others a long time ago. So let's conclude, please.
22 MR. DORIA: Yes. Now what I'm saying is, in relation to the
23 village of Fakovici, Bjelovac, and Kravica, there is abundant evidence in
24 the -- in the -- in the exhibits that were tendered showing that he had
25 knowledge of those -- of the crimes committed. Again, it's the memo pad.
1 His interview, he testifies about that. So essentially it's the memo pad
2 and -- and -- and his interview which attests to the fact that he had
3 knowledge of the crimes committed.
4 As to the failure to prevent or punish, which means were available
5 to the accused to prevent or punish? First of all, it's obvious that
6 Naser Oric was aware that acts of looting and plunder were impermissible.
7 We have Exhibit P29, concerning -- Exhibit P29 which was delivered to
8 Srebrenica TO, in which specifically it's from 2nd Corps in which
9 specifically it's stated that "acts of wanton destruction and acts of
10 plunder are prohibited and the units should make sure that this doesn't
11 happen." The accused himself in his interview, he say that he remembers
12 that he also signed a document, an order, to the effect that acts of
13 plunder and wanton destruction are prohibited. It's second -- from the
14 second interview, tape 9.
15 We heard witness Odzic -- Hodzic extensively talking about the
16 means available to the accused as it relates to the laws in force that
17 could -- that he could have used to ensure that persons under his
18 responsibility should have either prevented or punished the particular
19 persons who committed the crimes.
20 Naser Oric had in his -- under his command a military police. We
21 are not going to -- but he could have used the military police. At least
22 Naser Oric threatened to report individuals to military police if they
23 fail to comply with an order. This is from Exhibit P13.
24 In one instance, a military police followed orders from Srebrenica
25 and brought individuals into custody for wilful abandoning their position.
1 It is from Exhibit P15. Naser Oric reported a decision to form a wartime
2 military police to the TO Staff in Tuzla, Exhibit P100. And Naser Oric
3 has threatened to imprison individuals who refused to obey orders on
4 mobilisation. It's Exhibit P20.
5 Naser Oric did use the military police to bring order during the
6 attack on Fakovici. This is from memo pad, P84. And Naser Oric also had
7 available a full-fledged reporting system, under which he could have, if
8 he had -- if he decided he could have reported the crimes committed to his
10 For example, could address you to Exhibit P3, an order from Naser
11 Oric dated 18 October 1992 in which he decided to establish constant
12 communication from lower units to higher units and superiors. Exhibit
13 P14, P84, again, the memo pad, he addressed the request from all staff
14 members to make weekly reports and plans for their respective departments
15 and submit them to the Chief of Staff.
16 And Naser Oric occasionally also reported an operation to the Main
17 Staff of the armed forces in Sarajevo district. For example, you can see
18 it from Exhibit P116. So the Prosecution's submission is that Naser Oric
19 had all the means available, from the investigative organs like the
20 military police and security forces through the military courts, the
21 system of courts that existed and the opportunity to report about the
22 crimes if he so wished to his superiors.
23 Based on this, the submission of the Prosecution is that there is
24 a case to answer for the accused. Thank you.
25 JUDGE AGIUS: I thank you, Mr. Doria. Mr. Wubben, there are four
1 minutes left before the break. I suggest you make use of them and you
3 MR. WUBBEN: Thank you, Your Honour.
4 JUDGE AGIUS: Because after that, out of the 45 minutes that you
5 have, you have -- you can only get 25, maximum 30 minutes, depending on
6 the generosity of Mr. Jones.
7 MR. WUBBEN: Thank you, Your Honour. I'm much obliged and even I
8 try to trim down my submission, in that respect that I can skip various
9 parts in which you were already addressed. The Prosecution, there is no
10 need to further any factual circumstances.
11 To start, responsibility under 7(1) of the Statute, the individual
12 responsibility is focussed on planning, instigating, ordering, committing
13 and --
14 JUDGE AGIUS: One moment. In this indictment, you have got only
15 two kinds of 7(1) responsibility indicated, and that's instigating and
16 aiding and abetting. Forget about the others because they are not
17 mentioned in the indictment.
18 MR. WUBBEN: Your Honours, they are mentioned in the indictment
19 and it is the Prosecution case that there is aiding and abetting and
20 instigating, as well as I will conclude that one can construct that there
21 is also planning and ordering. In the indictment, it has been further,
22 the aiding and abetting, and the instigating, as well as in the pre-trial
23 brief. It has never been the position of the Prosecution to exclude the
24 planning and ordering.
25 I would like to rely on the jurisprudence that where it has been
1 established that the accused was the commander of the troops carrying out
2 an attack, it's reasonable to infer that the accused carried out a command
3 role during the attack. Kupreskic judgement.
4 The requisite elements of instigating. First, that the crime was
5 committed by a person other than the accused and actus reus is that the
6 accused prompted, provoked, or induced the conduct of the other
7 perpetrator. The mens rea include the intent of the crime to be committed
8 as a result of his are provocation or inducement or anyhow an awareness of
9 the likelihood. I will refer to the Brdjanin case in that respect and I
10 will skip Blaskic, Galic, Strugar, and Kordic judgements, as well as
11 corroborating that judgement. The elements of aiding and abetting as a
12 mode of liability are that the crime was committed by a person other than
13 the accused, and the actus reus include that the accused gave practical
14 assistance, encouragement or moral support which had a substantial affect
15 upon the commission of the crime. The mens rea focused on knowledge of
16 the accused, that his conduct would substantially contribute to the
17 commission by another person of the crime or that he was aware, again, of
18 the substantial likelihood that this would be an adequate consequence of
19 his conduct.
20 I will refer to the Celebici case and as well include the Brdjanin
21 judgement in this respect for various specifications, like there is no
22 requirement that the accused shared the mens rea of the perpetrators. It
23 is sufficient that he or she has knowledge that his or her actions will
24 assist the perpetrator in the commission of the crime, and that relevant
25 act of assistance may be removed both in time and place from the actual
1 commission of the offences.
2 I come to the evidence of individual responsibility --
3 JUDGE AGIUS: You want to do it after the break?
4 MR. WUBBEN: And I would like to suggest that your -- take the
5 part of it after the break.
6 JUDGE AGIUS: I think that's wiser. We'll take a 25-minute break
7 starting from now.
8 --- Recess taken at 12.31 p.m.
9 --- On resuming at 12.59 p.m.
10 JUDGE AGIUS: This, I suppose, is Mr. Doria's or what Mr. Doria
11 referred to.
12 MR. WUBBEN: Yes, Your Honour.
13 JUDGE AGIUS: You have received it and you have got no submissions
14 to make, I suppose, Mr. Jones?
15 MR. JONES: I haven't fully reviewed it at this stage, honestly,
16 Your Honour, but for the moment, not.
17 JUDGE AGIUS: Yes. I don't think you are going to review it
18 actually but ...
20 MR. WUBBEN: Your Honours, the Prosecution incorporate at this
21 point evidence that is previously argued this morning in the field of
22 command responsibility of the five alleged attacks linked with wanton
23 destruction and plunder is all in order to avoid needless reputation. To
24 establish to the accused was not unfamiliar with the structure of command
25 and control upon his appointment as commander in May 1992. It's important
1 to underline his police and military career. I refer to his police
2 background for -- in the past, as stressed in the agreed facts number 2,
3 3, 4, 5, 6, and 10, the biographical facts, and that he served in the army
4 for several years. That means that he was familiar with the disciplining
5 and aware of the system of command and control, the tasking, reporting,
6 and how a hierarchy plays a role in it.
7 He should be aware of the assistance and role of working with a
8 Criminal Code. He should have been immersed in the culture of military
9 and police. Naser Oric functioned also as a member of the War Presidency
10 and participated in meetings of his staff of the TO Srebrenica. Thus,
11 Naser Oric had vehicles for additional institutional knowledge available
12 and the structures supported his information or position to fulfil his
13 role as a commander of the armed forces. He was able to use both the
14 military structure of the armed forces and the War Presidency to advance
15 any relevant fact or circumstances related to the allegations and event
16 you'll outcome of the attacks. This position regarding information could
17 help him if he just wanted or choose to do so, to command and control his
18 army, including the units. I refer to P14, the transcript of Becir
19 Bogilovic, and the agreed facts and P84. There were also guidelines and
20 regulations, degrees and laws available that enabled the commander to set
21 up instructions and orders to direct the morale and behaviour of his
22 troops. I refer to the order of the 28th May 1992 of 2nd Corps, that's
23 the order not to burn, P29, and the commenting testimony of Sead Delic, as
24 a witness. On the 23rd of 92, the presidency of the BiH issued an order
25 of the adoption of rules of international laws of war by the Armed Forces
1 of BiH coming into force on the 5th of September 1992. I refer to it. I
2 refer to the testimony of Enver Hogic and P272.
3 As argued earlier this morning by my colleagues, there is
4 sufficient evidence for the crime basis of wanton destruction and plunder
5 during and after the five alleged acts, including the three attacks that
6 formed parts of counts 5 and 6. In addition, that evidence, all the
7 evidence, also showed that the accused was the commander of the units
8 participating in these attacks. The overall commander. These units
9 committed the attacks including the wanton destruction and plunder.
10 There are acts and omissions by the accused that constitute an
11 actus reus of instigating and aiding and abetting. There was no
12 disciplining during the attacks regarding preventing the burning and
13 looting. Naser Oric failed to take reasonable measures thereof. He
14 didn't make use of seeking the support of the command line via Tuzla or
15 Sarajevo to address that problem and request adequate assistance. In the
16 report sent to Tuzla and Sarajevo, they show during the course of the
17 trial there is no -- not a reference to such a request for advice or
18 assistance to maintain discipline or to take the appropriate measures.
19 And indeed there were in Srebrenica problems regarding discipline. I
20 refer to Hakija Meholjic as a witness.
21 While at the same time, Naser Oric considered himself subordinated
22 to Tuzla and Sarajevo, he failed to ask for any assistance or seek for any
23 measures to support him in that respect. I will refer to the reports that
24 show that he was able to address his superiors with reporting regarding
25 the attacks but do not refer to any problems in that regard, meaning P279,
1 D -- P100, there are reports signed the 2nd of July 1992, also refer to in
2 the interview accused and the transcript testimony Ibrahim Becirevic when
3 it comes to communication and information service, with no mentioning of
4 need for help to monitor and discipline behaviour of soldiers regardless
5 the events in Ratkovici and later the other events during other attacks.
6 This failure of -- can be concluded from the opinion from accused
7 regarding his role as a commander of the armed forces under his command,.
8 That opinion include a focus on leadership of leading combat actions and
9 other combat role that include monitoring of behaviour regarding war
10 crimes such as burning and looting. He stated by himself that he was
11 responsible for the situation in the field, not being interested in any
12 paperwork. I refer to his interview in that respect.
13 There is no follow-up of the order of the 28th of May 1992, and
14 the decree by the president regarding the application of international
15 laws of war, and I quote him, "We had to defend ourselves with all means
16 available, that means by observing and not observing the Geneva
17 Conventions, both the Serbian and the Muslim side." I also note the
18 labelling of the fact of the Muslim side.
19 And I quote, "It was necessary to fully respect the Geneva
20 Conventions, and I think that the command corps did not change its
21 position from the very beginning and right up until the end of the war."
22 I apologise, that is not the quotation of the accused, Your
23 Honours. It's the transcript testimony of Hogic, and I refer to it.
24 However, accused underlined another opinion in that respect. "I'm not a
25 commander that knew all of the Geneva Conventions."
1 There was, however, for him available a training centre in Tuzla
2 and he didn't make use of it. I refer to Delic testimony in that respect.
3 He signed a report dated the 3rd of July, that's P100, 3rd of July
4 1992, of the Srebrenica TO as a commander. This report was addressed to
5 the Sarajevo Republican Staff and the staff in Tuzla. He reported again
6 on results regarding an attack avoiding, not mentioning the need for the
7 assistance, as I alleged earlier.
8 Important to note is that there was an existence of a pool of
9 former reserve officers available for Naser Oric. In his interview he
10 clarified that it was Ramiz, that is Ramiz Becirovic, task to think of
11 plan together with other former officers of the JNA. I explicitly refer
12 to his interview in that respect.
13 So this Ramiz could collect a group of these former reserve
14 officers, among them Hamid Salihovic, former reserve officer of the
15 military security. So are also named Ferid, Hodzic, as a person who is --
16 who has this former military expertise. With respect to the mens rea, I
17 will refer to the fact that apparently there it was a leak about any
18 action to follow in regard to a projected attack. Meholjic, witness
19 Meholjic confirmed that at a meeting about Fakovici, Witness Meholjic said
20 that there had been a leak about the action. "The people followed us.
21 The people started even before us. Everybody knew when the action took
22 place. There was a leak every time, before every action. Naser Oric
23 should be aware of it. He was aware at several meetings, 3rd of October,
24 7th of October, when this collection of goods and plundering has been
25 addressed." That's Exhibit P84. In his interview he confirmed that what
1 happened in the village he found out afterwards.
2 He also confirmed that it was the same practice in all Territorial
3 Defence units to bring down a lot of unarmed people to carry out wounded
4 and material and supplies, supplies, Your Honour. "You can take what you
5 can get, whatever you can grab, that's yours. And everybody takes that
6 home to his own house or to his own unit." End quotation of his
8 There was an intent to share the practice, to plunder or to burn
9 down property, and he had an -- he, the accused, had a passive attitude
10 when confronted with crimes. When -- when he was confronted with a
11 demonstration of resignation as early discussed related to document P255,
12 it's a resignation by members of the Srebrenica Staff, there was a meeting
13 called by the accused. I refer to that document P14, P84, as the minutes
14 of that meeting. In the minutes, from the minutes, it is clear that Naser
15 Oric was present, and he opened the meeting, read the decision out,
16 leaving the OS Staff and the letter of resignation was subject of
17 discussion at the meeting. It's important to refer to that letter of
18 resignation as he as a commander was put on notice that the writers of the
19 letter prefer not to burn in their consciences that the liberation of new
20 areas from occupation only increases crime and the destruction of private
21 and socially owned property, and apparently there was no follow-up. Not
22 during the discussion at that meeting, nor later on. And I refer to the
23 fact that the Kravica attack has to be planned and was about to project
24 from that date on.
25 Naser Oric stated in his interview and reply to a question whether
1 the soldiers as well were taking things and running back to the family, he
2 replied, "Everybody did that." And also I refer to the meeting of the
3 staff of the TO Srebrenica of the 10th of January, after the Kravica
4 attack. Naser Oric is quoted in the minutes stating that the operation
5 has been carried out well and that he commended all participants. The
6 alleged behaviour and discipline of the soldiers during and after the
7 Kravica area attack did apparently not form part of any measures or
8 measures discussed or a general discussion triggered by Naser Oric as the
9 overall command.
10 When it comes, Your Honour, please give me some guidance how many
11 minutes are left?
12 JUDGE AGIUS: You have -- Mr. Jones, 15 or 20?
13 MR. JONES: I think more like 20 minutes, yes.
14 JUDGE AGIUS: Twenty. So you have 12 more minutes or 13 more
15 minutes, Mr. Wubben.
16 MR. WUBBEN: I can finalise, Your Honour.
17 I come to the part of ordering and planning. In the indictment
18 the accused is alleged also to be liable in the modus of ordering and
19 planning of the crimes of plunder and wanton destruction as mentioned in
20 counts 5 and 6. The acts and omissions previously submitted by me in the
21 field of instigating and aiding and abetting, but it can also be adduced
22 in the field of individual responsibility, ex Article 7(1) for planning
23 and ordering such war crimes.
24 The plan -- the elements of planning are one or several persons
25 contemplate designing the commission of a crime at both preparatory and
1 execution phases. It is sufficient to demonstrate that the planning was a
2 factor of substantially contributing to such criminal conduct, its actus
3 reus, and the accused directly or indirectly intended the crime in
4 question to be committed. A person who plans an act or commission with
5 the awareness of the substantial likelihood that the crime will be
6 committed in execution of that plan has the requisite mens rea for
7 establishing this responsibility under Article 7(1). Planning with such
8 an awareness has to be regarding as accepting the crime. I refer to the
9 jurisprudence, the Brdjanin judgement, as well as the Kordic and Cerkic
10 judgement. It's not the judgement. It's the Appeals Chamber decision of
11 the 17th of December.
12 The requisite elements of ordering are that first, a person in a
13 position of authority uses that authority to instruct another to commit an
14 offence or give an explicit order. It's not necessary to demonstrate the
15 existence of a formal superior-subordinate relationship between the
16 accused and the perpetrator. An order should be implied. Causal link
17 between the act of ordering and the physical perpetration of a crime, that
18 order does not need to be given in any particular form, nor does it have
19 to be given by the person in position of authority directly to the person
20 committing the offence.
21 THE INTERPRETER: Could the speaker please be asked to read slower?
22 It is too fast for the interpreters, thank you.
23 MR. WUBBEN: I apologise. The existence of an order may be proven
24 through direct or circumstantial evidence. The person ordering, third,
25 must be aware, so mens rea, of the substantial likelihood that the crime
1 committed would be a consequence of the implementation of the order.
2 Again, I refer to the Brdjanin, the Strugar judgement, as well. The
3 additional evidence constituting ordering and planning of the alleged
4 crimes under counts 5 and 6, from the command responsibility evidence
5 material as well as the evidence material already adduced by me, it is
6 possible to identify a basis for evidence for -- of ordering and planning
7 the crimes as alleged under 5 and 6. There is sufficient evidence that
8 the accused as a commander was involved in the planning and ordering of
9 the attacks and, Your Honours, of course, I make the distinction of
10 ordering and planning an attack and ordering and planning of a crime. But
11 it is very important to be aware of the fact that in around this -- such
12 attacks, these crimes, plundering and wanton destruction, occurs.
13 The evidence already demonstrated the relevant circumstances of
14 the overall commandership of Naser Oric and organising and implementation
15 of the decision of the attacks and of his overall command.
16 Will you bear me one moment, please, Your Honour?
17 With a view to the Fakovici attack, I refer to the transcript
18 testimony of Hakija Meholjic in which he confirmed that Zulfo Tursunovic
19 and Naser Oric organised that attack. A meeting took place before the
20 Fakovici operation regarding the attack, that Meholjic and Naser Oric both
21 attended. I refer to the transcript, the memo pad, page 3 and 4, and his
22 interview regarding Fakovici, the interview of the accused. Naser Oric
23 was personally present at Fakovici, confirmed by Hakija Meholjic. I refer
24 to the transcript regarding Bjelovac, I refer to the interview of accused,
25 regarding Bjelovac, tape 21, page 23, in video 2920, also the memo pad,
1 P84, page 26, 27, I cite the testimony of Hakija Meholjic.
2 Naser Oric planned this attack on Bjelovac, and I refer also to
3 the action combat report, P89, and the testimony of Sead Delic. The
4 Kravica attack --
5 JUDGE AGIUS: Mr. Wubben, you seem to be -- to continue labouring
6 on planning and ordering when I have already told you what our view is,
7 that it -- in other words, you're seeing them in the indictment where they
8 are obviously missing, and you are going to end up missing completely your
9 submissions on instigating and aiding and abetting, which are the ones we
10 really want to hear submissions about.
11 MR. WUBBEN: Yes, Your Honour. I -- my submission include
12 ordering and planning, and this also corroborate the aiding and abetting,
13 so meaning that when I finalise this, then it's the finalising also of the
14 evidence named in both -- in all forms of and modes of liability ex
15 Article 7(1). And in the Kravica attack, I refer to the testimony of
16 Hakija Meholjic, and that accused admitted to have played a role in
17 Kravica standing in front of the troop. Beside that, Naser Oric also made
18 remark with a view to his behaviour in attacks in general. Quoting
19 him, "I was always the one with the gun in the hand going in front of the
20 troop. I was always the one leading, as far as the Chetniks is
21 concerned. So I was taking part as much as possible and always I am
22 leading." Refer to the interview of the accused, and also a part in which
23 he speaks about the planning in general of attacks. In a general manner,
24 Naser Oric clarified that planning for the attacks took place over several
25 days. We had this one meeting where we gave off -- where we gave all of
1 those tasks. The second meeting was to allocate this -- the directions of
2 attack, and then the third meeting would come afterwards, after everybody
3 would have received their directions of attacks, they would then go out
4 and carry out reconnaissance from where they were supposed to be. We
5 would then have a meeting again. I refer to the interview. This
6 evidence, Your Honours, will also assist in the evidence of instigating
7 and abetting, and so vice versa, and as this is an area regarding
8 preparing an offensive and in which he was able to address the morale, the
9 behaviour, and to anticipate any instructions thereof.
10 Within the scope of evidence for planning and ordering, it's in an
11 approach of accentuating the knowledge that accused had, whenever the
12 planning started, and the decision or order for the military offensive
13 action had to be executed by the forces. There was a substantial
14 likelihood of burning and looting, as shown in the evidence already
15 submitted. After experiencing the attacks by troops under his command,
16 from as early as June 1992, and the fact of burning and looting that took
17 place ever since, during or shortly after these attacks, is an indirect
18 attempt to accept such practice as a predictable outcome, being a
19 self-filling part of planning or ordering attacks even if such a burning
20 or looting is not explicitly included in that planning and ordering. By
21 planning and ordering the attacks on Fakovici, Bjelovac, and Kravica area,
22 together with Jezestica, Naser Oric was aware or should be aware of the
23 substantially likelihood of burning and looting, meaning that at any rate
24 with the ordering and planning of the attack there is an implicit planning
25 and order for war crimes of unlawful burning and looting in the area of
1 the projected offensive at the planned time. This -- Naser Oric, by
2 organising the attacks, he also accepted, according to jurisprudence an
3 indirect intent, the planning, ordering of the burning down of houses and
4 plunder of private property belonging to the population of the Serbian
5 ethnicity of the villages -- in the villages in the area of Fakovici,
6 Bjelovac, and Kravica. I conclude my argument for individual
7 responsibility 7(1) by accused taking into account the evidence as
8 produced. I conclude that there is evidence capable of supporting a
9 conviction of accused Naser Oric being individually responsible under
10 Article 7(1) of the Statute.
11 Your Honour, I arrive for a half minute with the concluding
12 remarks, chapter six.
13 This morning, and the beginning this afternoon, my co-counsels and
14 I have submitted and concluded that there is sufficient or better capable
15 evidence to support a conviction of Naser Oric for the crimes as alleged
16 in counts 1 to 6 of the indictment. The indictment should stand and
17 accordingly, there is a case to answer. Therefore, the Prosecution
18 respectfully requests that the Trial Chamber proceed with the case against
19 Naser Oric to final judgement. Thank you, Your Honour.
20 JUDGE AGIUS: I thank you, Mr. Wubben. Mr. Jones, I take it that
21 you would like -- yes, one moment. Judge Eser would -- to whom? Yes, go
23 JUDGE ESER: Mr. Wubben, just for the reason to clarify, in which
24 paragraph of the indictment would you find or could the Trial Chamber find
25 that Naser Oric is accused of planning and ordering?
1 MR. WUBBEN: It's in the beginning of the indictment,
2 Your Honours, where it is --
3 JUDGE ESER: If I may assist you, there is reference to --
4 MR. WUBBEN: Yeah. It's paragraph 12, Your Honour. "Individual
5 criminal responsibility includes planning, instigating, ordering,
6 committing, or otherwise aiding and abetting in the planning, preparation,
7 or executions of any acts or omissions set forth in this indictment."
8 Thank you.
9 JUDGE AGIUS: Yes, Mr. Jones.
10 MR. JONES: Yes, thank you, Your Honour. If I might start with
11 that last point, and draw attention to a -- what's now Prosecution
12 Exhibit, and it was the correspondence between the parties relating to
13 agreed facts, et cetera. At paragraph -- paragraph 6 of our issue
14 outline, it's the issue outline dated 12th November 2003, quite a
15 considerable time ago, we wrote in relation to -- we wrote to the
16 Prosecution and in relation to Article 7(1) we wrote, "We affirm our
17 understanding based on the issue outline in paragraph 38 of the amended
18 indictment that the Prosecution is basing the alleged responsibility of
19 Naser Oric, the accused, under Article 7(1) of the ICTY Statute
20 exclusively on allegations of instigating and aiding and abetting offences
21 within the injuries particulars of the ICTY.
22 THE INTERPRETER: Could the speaker please be asked to read
23 slower. Thank you.
24 MR. JONES: And we never received anything from the Prosecution to
25 indicate that that understanding was incorrect and we've proceeded during
1 this trial on the basis that it was merely instigating and aiding and
2 abetting which were charged, and in our pre-trial brief when we set out
3 the elements for Article 7(1) liability, again we dealt with instigating
4 and aiding and abetting. I may come back to that but that's always been
5 our understanding, and we would have major issues if the Prosecution were
6 to change tack now.
7 Now I'll respond in a very brief time I have to some of the points
8 raised by the Prosecution. And, of course, given the time, I can't
9 respond to all the points. In sum, I say nothing you've heard today
10 shakes our submissions from yesterday. The summary of the evidence which
11 has been presented by the Prosecution is in fact been full of
12 inaccuracies, I have to say, and I'll take you to specific chapter and
13 verse. I have half a dozen examples which I've noted already. The
14 interview of our client has been completely misrepresented in many
15 respects and Your Honours will of course -- I understand Your Honour also
16 of course be reading or have read the interview in its entirety and I
17 suspect that's all the more necessary now that bits and pieces of the
18 interview have been taken out, out of their context and, we would say,
19 misrepresented. P84 has been referred to a great deal and again we would
20 say completely misrepresented in parts. Just to give one example,
21 Mr. Di Fazio referred to 49 burnt villages which, clear from the context,
22 that context, that refers to Muslim villages, burnt Muslim villages, in
23 the Skelani area. And again, the Prosecution there would have you believe
24 that these were Serb villages and that's the sort of gross distortion of
25 P84 which is, in our submission, unacceptable and which will have to be
1 corrected at least at some stage and if I may note in that regard there
2 was a witness, Prosecution witness, potential witness, Mustafa Salihovic,
3 who was actually the note taker of P84 and who would have been someone
4 who'd have been in a position to actually help Your Honours in how to
5 interpret P84 and what was meant and what was -- and what the context was.
6 He was dropped. The Prosecution would prefer you not to have the full
7 picture of what was actually going on in these meetings and simply take
8 words out of context and get to a conviction, ultimately, I imagine that
10 So the essence of what I'll be saying in this brief period now is
11 that the Prosecution should in a Rule 98 bis submission at least get the
12 evidence right. They have the transcripts. There is therefore no excuse
13 for misstating what the evidence was. Before I come to a couple of those
14 examples, I also want to say by way of general remark, that some of what
15 we heard from the Prosecution is just sheer fantasy. And I'll take one
16 example, that Naser Oric should have attended a training centre in Tuzla,
17 that he should have crawled through 100 kilometres of enemy lines,
18 minefields, risked his life to attend a training in Tuzla. And the reason
19 I mention that which strikes me, and I think anyone of common sense, as so
20 absurd is that you have to trust the judgement of the Prosecution in a lot
21 of these matters when they express disapproval of Naser Oric or if they
22 criticise his failings. I mean, if this is a Prosecution who thinks that
23 a person is obliged to crawl through enemy lines to attend a training I
24 say you have to shall very sceptical about their judgement.
25 Now, killings, if I can deal with that firstly, Prosecution has
1 only dealt with knowledge in relation to the killing of Mr. Kukic. And
2 not with the six others or now five others. As regards what the evidence
3 was about the killing by Kemo, I want to make clear that our concession is
4 that that was the evidence given by Radic. We are certainly not conceding
5 the truth of any of those matters. Our concession is that was evidence
6 which was given. But the Prosecution hasn't provided you with any
7 information regarding knowledge of the five other killings and if I pose
8 the question, why not? I'd answer it's because there is no evidence that
9 Naser Oric knew of these five other killings and so I'd certainly invite
10 Your Honours in light of that implicit concession to stop the case
11 regarding these other murders because -- or what's charged as murders,
12 because there is no evidence of knowledge on Naser Oric's part and knowing
13 about beatings cannot be the same thing as knowing about killings,
14 otherwise every cruel treatment under 7(3) would implicitly -- would
15 implicitly carry with it a conviction for murder under Article 7(3). That
16 cannot be right. There must be more and the Prosecution hasn't even
17 addressed what more there is.
18 Now, as far as the presentation of killings, of the evidence in
19 relation to beatings and killings was concerned, there were some major
20 inaccuracies which Ms. Richardson put before you, and I'll take one
21 example. She made a great play of the fact that Ilija Ivanovic was prone,
22 was lying on the floor in front of the person alleged to be Naser Oric.
23 That was something which I went to great pains in cross-examination to
24 make clear, because it's obviously a mistake. And I'll read from the
25 transcript, 26 of January 2005. And I put to him: "Leaving that meeting
1 aside I want to clarify one point about the meeting in the reception room
2 if you can go back to that, and I believe there may have been a
3 misunderstanding. You seem to be telling us that when you were brought
4 into the reception room with the five or so people you were lying down in
5 front of the people. Now is that correct? Or were you in fact standing
6 up when you saw them?"
7 Answer: "That's not correct. I never said that. Nobody forced
8 us to lie down on the floor. We were standing in front of them, and they
9 were deliberating amongst themselves, asking some questions. I never said
10 that we were prone. I simply said that we were lying down when we were
11 being beating. That's all." That's was his Andja. How much clearer can
12 he be, and how can it be right to still suggest to Your Honours that they
13 were lying prone in this reception room? Ms. Richardson said that Mrki
14 was in uniform. Andjelko Radic on the 13th of January said, "Three
15 occasions Mrki was wearing civilian clothes. I didn't see him in uniform.
16 He was a civilian."
17 JUDGE AGIUS: Again, if there is one person who said Mrki was in
18 uniform and three who said that he never was in uniform, that's for the
19 final judgement, not for now.
20 MR. JONES: I'm saying that the evidence was misstated in relation
21 to what was said about Mrki. It was suggested that there was a positive
22 identification by Ilija Ivanovic of Naser Oric. Again, I'm looking at the
23 transcript of the 26th of January 2005. "Today, sitting there where you
24 are, you can't say for sure can you whether you ever laid eyes on Naser
25 Oric in the reception room in the prison."
1 Answer: "I've said this, haven't I. I really didn't know him.
2 I've confirmed a number of times that I didn't see him."
3 And he said, other things on that subject, to the effect that -- I
4 asked him whether he was sure of seeing Oric in the room.
5 He answered: "I fully understand what you mean. As I've said, I
6 don't know him personally. I don't know if he was there, but I think I've
7 explained with sufficient clarity what my assumption was based on. But I
8 did say a number of times I simply don't know -- didn't know whether it
9 was him or not."
10 Furthermore, it was suggested or said that the evidence showed
11 that Serbs said they were interviewed by Hamid Salihovic. That's the
12 Prosecution's inference matching together documents with testimony. No
13 detainee gave evidence that he was interviewed by Hamid Salihovic. You
14 referred to the interview with Naser Oric where allegedly he said that he
15 knew that Zulfo was visiting the prisoners. Again that's not correct. It
16 was in the context of trying to establish a military court that Naser Oric
17 made remarks about Zulfo's familiarity with the prison system and the
18 judicial system because of his time in prison. So I say all that to make
19 clear that Your Honours will have to review very carefully what the
20 Prosecution has said today about the evidence. We provided slides and
21 references to every quotation we proceeded and you can check. But as for
22 these summaries, they really are not accurate for the most part.
23 Now, Your Honours know what Hakija said about Kemo and all the "I
24 don't knows" with which he spoke of any affiliation that Kemo might have
25 had. His evidence was linked immediately with P80 which Hakija said bore
1 no resemblance to reality. I'm not going to make submissions on
2 documents, but the Prosecution surely can't pick and choose one thing that
3 Hakija said and then ignore what he said in the next breath. The OTP
4 would have you ignore all that and have you take Hakija's evidence that
5 Kemo was at the relevant time at the time of the killing a soldier in the
6 Pale battalion. And that's quite simply not Hakija Meholjic's evidence.
7 You know what the evidence regarding Sarac was as well. I won't say the
8 evidence of Sarac, because he didn't give evidence. He wasn't
9 available for cross-examination, and a we know what Mr. Radic said about
10 the inaccuracy of what Sarac said when being interviewed.
11 You know that there was never positive identification of Oric in
12 the sense that there was not a single photo, identification procedure, or
13 an identity parade carried out in this case. You know that Nedjeljko
14 Radic spoke of the Oric which he saw as being -- having a height of 167 --
15 160 centimetres, blue eyes, and being clean shaven, whereas the
16 Prosecution evidence, and this is the Prosecution's evidence because it
17 says Major Mujkanovic among others, 180 centimetres, brown eyes, bearded,
18 and if that's a positive identification, then a certain expression
19 involving monkeys and uncles comes to mind. It's also misstated that
20 Naser Oric went in and took a prisoner out of the PTT building. That was
21 the summary which Ms. Richardson provided. It's at page 29, line 4, today
22 that was not Colonel Tucker's evidence. Again, these are important
23 matters where accuracy counts for everything, and surely on the 98 bis
24 submission the Prosecution at least have to get the evidence right.
25 I'll move on to question of plunder and wanton destruction. Now,
1 Mr. Di Fazio spoke rather picturesquely of hillside villages and peasants
2 living in some sort of rustic innocence and then merely being attacked.
3 But look at P88 and P89 which have been referred to, and what was seized
4 from those villages in terms of military hardware. The forms themselves
5 speak of military necessity in terms of the tactical and strategic
6 operation or necessity of the actions of what was seized from the enemy
7 forces. And again, this -- I'll come back to this repeatedly, the
8 Prosecution are ignoring in effect the evidence of the insiders. Now,
9 they called Dr. Mujkanovic, Hakija Meholjic, Becir Bogilovic, maybe they
10 don't like the evidence which they gave, but that is Prosecution evidence,
11 and taking the Prosecution evidence as its highest doesn't mean ignoring
12 everything which is inconvenient or which doesn't fit. He said that every
13 raid was necessary for food and ammunition. And the destruction was an
14 unfortunate by-product done by civilians. Again, Mr. Di Fazio said that
15 all the Prosecution evidence was of village guards simply minding their
16 own business. Again, all the Prosecution evidence, if you ignore what the
17 insiders said, if you ignore what Dr. Gow testified about what was
18 happening in the region, if you ignore what the insiders said about how
19 much of a military presence was in the area, how there were Serb artillery
20 which was shelling them every day. But that -- 98 bis doesn't entitle one
21 to just simply ignore all of that evidence. Mr. Di Fazio said that there
22 wasn't any evidence ever of people being attacked in trenches first.
23 Well, that's not true. In Jezestica there was evidence of people in
24 trenches being attacked and of heavy weaponry being seized at the
25 beginning of the action.
1 And when we look at plunder, it is important to consider the items
2 which the Prosecution say were taken. Because if they are saying, Oh,
3 well we are not concerned with food, food is completely out of the
4 picture, then they may have to drop cattle from the indictment because it
5 certainly is a fact, especially among starving people, that if they take
6 cattle, it's a good chance they are going to kill the cattle and eat them.
7 If it's merely a question of TV sets and furniture, then that's when
8 inventory does become important, and we will certainly be going back and
9 looking in each action what was the evidence that furniture and TV sets
10 were stolen? I think you'll find it's very minimal.
11 The -- and in addition I might just say as an aside that the
12 Prosecution nonetheless did continue to deal with the notion of food and
13 the suggestion that it's not the lesser evil to take food from the Serbs
14 because then they would starve. That just ignores the whole context that
15 the Serbs weren't under siege, the Bosniaks in Srebrenica were under
16 siege, and that the Serbs had all of Serbia and kilometres of their
17 territory behind them, and I don't think there has been a single piece of
18 evidence that a Serb ever starved as a result of having his property taken
19 by people who were under siege.
20 And I come to this argument of Mr. Di Fazio, that furniture --
21 because furniture is a household possession, that if evidence is given of
22 household possessions being taken then it must include furniture. Well,
23 that's a complete logical fallacy. It's of a nature of the logical
24 fallacy that if a cat is a mammal; therefore, if it's a mammal it must be
25 a cat. It simply does not follow. It could be kettles, lamps, any of the
1 thousand of household items which were not furniture which were taken and
2 never mind the fallacy in logic of saying that if furniture is a household
3 item, if a household item is taken it must be an item of furniture. Clear
4 fallacy. The fact this furniture is heavy, if anything else, sofas and
5 chairs, and perhaps old ladies, and civilians, can take household items,
6 but not furniture. Anyway, it would be a complete fallacy to say that any
7 reference to household possession must include furniture. It's the
8 fallacy of affirming the consequent, if one has studied logic.
9 But again in all of this the key issue has not been addressed,
10 that -- how is one to say this these people carrying out these acts of
11 plunder were subordinates of Oric? Mr. Di Fazio seemed to suggest that
12 you can just fasten on this, the magic use of the word soldiers by a Serb
13 and then be satisfied that that's sufficient evidence that these were
14 soldiers in organised units. Often, in fact, the term "soldier" was
15 suggested to witnesses in examination-in-chief but beyond that, the
16 evidence, the Prosecution evidence, has been that it was impossible to
17 distinguish between civilians and fighters, although Mr. Di Fazio would
18 ask you to ignore that and not consider how a Serb actually would know who
19 is a fighter and who is not. I would refer to something which Your Honour
20 said at one stage when this whole matter came up. It was when I objected
21 to the Prosecution leading by asking whether people were soldiers, saying
22 that it calls for a judgement on the part of the witness. And
23 Ms. Richardson said, I think every time we go through these questions
24 about the person wearing a uniform.
25 THE INTERPRETER: Could the speaker please slow down. Thank you.
1 MR. JONES: Sorry, it's just that I'm short of time.
2 "I think every statement we go through these questions about the
3 person wearing the uniform it's redundant. And I think at the end of the
4 day Your Honours are able to judge for yourself
5 whether the description, the characterisation of the person being
6 described is a soldier or not."
7 And Your Honour said: "I can assure you we will be in that
9 Your Honours are in that position. You are going to have to
10 decide whether someone it was a fighter or a civilian. It's not enough
11 just to trust that Milenko Stevanovic, when he says "soldier" is referring
12 to a fighter in an organised unit. The fact is, as emerged from the
13 evidence, that in fact Serbs had all sorts of different definitions of
14 what was a soldier, whether it was just a young man with a weapon or
15 someone in a bit of uniform, and the consistent evidence is that way --
16 that's why ribbons were needed precisely because there was no way to
17 distinguish by sight alone. And again, only by ignoring all of the
18 insiders' evidence could you arrive at the conclusion that this is
19 satisfactory evidence that there were soldiers involved.
20 And then review of the actions has been incredibly selective.
21 It's been a question of looking at one house here, one house there, and
22 that's why I referred to a notion of an inventory because, in fact, what
23 our client is entitled to and what Your Honour is entitled to is a
24 demonstration that this was the damage caused in this action and this
25 witness saw these people committing that damage or that plunder, and those
1 people are now shown by some evidence to be a subordinate of Naser Oric
2 and it's shown that he knew that his subordinates will committed those
3 crimes. There is a -- discrete links which need to be shown in a proper
4 criminal case. Instead the Prosecution is inviting you to a broad-brush
5 approach to see some fighters here, some destruction there, a bit of what
6 Mira Filipovic saw, a bit of what someone else said, and arrive at the
7 conclusion that this is all satisfactory demonstration of command
8 responsibility for these crimes. It isn't. In fact for Mira Filipovic -
9 she admitted it, in fact - she didn't see her house burnt down. It could
10 have been an empty menace. She saw it was -- the house was burnt next
11 day, I think that's what Mr. Di Fazio said. I'm going to have to check
12 all these references now. But the fact is someone else could have done it
13 in the meantime. Fighters, civilians, displaced persons. We haven't made
14 any -- in fact, the Prosecution hasn't answered the questions which I put
15 yesterday. Finally a few matters on -- if I may, may I be permitted five
16 minutes, Your Honour? I know we are running over, or do we have until
18 JUDGE AGIUS: No, we don't have until 2.00. We have until quarter
19 to 2.00, and I have a bureau meeting soon after this sitting.
20 MR. JONES: I'll try to make my last points in a very quick way.
21 The Prosecution has added glosses to certain exhibits, P84. Mr. Di Fazio
22 referred to Oric's inner circle and no witness ever said that the people
23 at that meeting were Oric's inner circle. He's not summarising evidence,
24 he's spinning it. I've referred to the reference to burning down 42
25 villages and the suggestion those were Serb villages. Again, all matters
1 which Your Honours will have to look at very carefully and not simply rely
2 on the summary which has been provided today.
3 The Prosecution has totally ignored the issue of the independence
4 of Hakija's unit, Zulfo's unit, Akif's unit. They are inviting you to
5 consider that Naser Oric was the overall commander of all forces in spite
6 of their own evidence. And again I pose the question: How for any of the
7 crimes can they be sure that they weren't committed by fighters who were
8 independent of Oric?
9 Mr. Doria summarised the evidence in relation to the actions
10 incorrectly when he said that the combat action sheet for I think it's P87
11 was for Ratkovici. It's for Ducice on the 19th of June, and the action
12 sheet says it started and ended on that day. Well, is that just a mistake
13 or are the Prosecution really going to give such a vague presentation that
14 they'll say, Well, you can consider that Ducice on the 19th is more or
15 less the same thing as Ratkovici on the 21st. I really hope not.
16 Your Honours, on Article 7(1), I would just say that our
17 understanding has been very clear from the beginning that we haven't had
18 to deal with aiding and abetting, and instigating, and you'll see in my
19 question to Dr. Mujkanovic, I asked whether Oric aided and abetted or
20 instigated those crimes. I didn't -- we haven't in the whole trial gone
21 into ordering and planning because we didn't believe we were called upon
22 to address that. And so if Prosecution changes their position now, we
23 reserve the right to make some pretty strong protestations.
24 Finally, two last matters. In summarising the background of the
25 client it was fairly typical, I think, of the Prosecution to say that
1 Naser Oric served in the army for several years, he did his compulsory JNA
2 military service. But again it's an instance of selective presentation,
3 ignoring inconvenient facts, glossing over anything which goes against
4 their theory rather than presenting their case fairly and fully, which
5 makes Your Honours' task all the more difficult.
6 Finally, I would just say that the Prosecution's presentation
7 today has not been a systematic review. I said in my opening speech that
8 you would only be presented a partial picture. To give another metaphor,
9 the Prosecution are presenting you with bits of a jigsaw, and in fact they
10 are different jigsaw puzzles and they're trying to hammer together pieces
11 of different jigsaws which simply don't fit. In a proper case, these
12 pieces would fit. But they don't unless you bang them into places where
13 they don't belong.
14 You have the picture, I trust, at the close of the Prosecution
15 case, the true picture given by the insiders and the others. That picture
16 speaks for itself which is that this case should not continue. Finally, I
17 would ask that if Your Honours do dismiss the case in full, please do so
18 in writing because otherwise it might be ultra vires Article 23.2 of the
19 Statute which requires written judgement. Thank you, Your Honour.
20 JUDGE AGIUS: Yes. That brings the submissions to an end. We
21 will hand down our oral decision on Wednesday, the 8th of June. Have we
22 managed to transfer the sitting -- the hearing to the morning? We have.
23 All right. So that will be at 9.00 in the morning or at any other time
24 during that morning that will be notified to you should we change the
25 9.00. Thank you.
1 --- Whereupon the hearing adjourned at 1.50 p.m.,
2 to be reconvened on Wednesday, the 8th day of June,
3 2005, at 9.00 a.m.