1 Wednesday, 8 June 2005

2 [Open session]

3 --- Upon commencing at 9.05 a.m.

4 [The accused entered court]

5 JUDGE AGIUS: Madam Registrar, could you call the case, please.

6 THE REGISTRAR: Good morning, Your Honours. This is case number

7 IT-03-68-T, the Prosecutor versus Naser Oric.

8 JUDGE AGIUS: Mr. Oric, good morning to you. Can you follow the

9 proceedings in your own language?

10 THE ACCUSED: [Interpretation] Good morning, Your Honours, ladies

11 and gentlemen. I can follow the proceedings in my own language.

12 JUDGE AGIUS: I thank you.

13 Appearances for the Prosecution?

14 MR. WUBBEN: Good morning, Your Honours. My name is Jan Wubben,

15 lead counsel for the Prosecution, also good morning to the Defence. With

16 me together with co-counsel Mrs. Patricia Sellers, Ms. Joanne Richardson,

17 Mr. Gramsci Di Fazio, and Mr. Jose Doria, and -- as well as our acting

18 case manager, Ms. Sanja Bokulic.

19 JUDGE AGIUS: I thank you. I see that you wanted to show -- give

20 a demonstration of inequality of arms. You are in full strength today.

21 Yes, Madam Vidovic, appearances for Naser Oric?

22 MS. VIDOVIC: [Interpretation] Good morning, Your Honours. My name

23 is Vasvija Vidovic. Together with Mr. John Jones I appear on behalf of

24 Mr. Naser Oric. With us are our legal assistant, Ms. Adisa Mehic and our

25 CaseMap manager, Mr. Geoff Roberts.

1 JUDGE AGIUS: I thank you and good morning to you and your team.

2 Any preliminaries before we proceed? I see none.

3 So as you know, today has -- today's sitting is going to be

4 devoted to our oral decision pursuant to Rule 98 bis, as it has been

5 amended on the 8th of December of last year. I will just state at the

6 very beginning that the decision that I will be pronouncing on behalf of

7 the Trial Chamber today is a unanimous decision on each and every point

8 that I will be mentioning. The conclusions and the decisions have all

9 been unanimous.

10 You are aware that Rule 98 bis, as it now stands, as it now is,

11 reads as follows: "At the close of the Prosecutor's case, the Trial

12 Chamber shall, by oral decision and after hearing the oral submissions of

13 the parties, enter a judgement of acquittal on any count, if there is no

14 evidence capable of supporting a conviction." The Prosecution, as you are

15 all aware, rested its case on the 31st of May and the Trial Chamber heard

16 oral submissions or received oral submissions on the 2nd and on the 3rd of

17 June respectively.

18 Before proceeding any further, on behalf of the Trial Chamber, I

19 wish to publicly recognise the high level of the submissions, oral

20 submissions, made by both of you, the Prosecution and Defence, and equally

21 the highly professional way in which you delivered them. Indeed the Trial

22 Chamber also wishes to acknowledge in open -- in public session the

23 efforts made by both parties since the inception of this case to make it

24 possible for the Trial Chamber to conduct this trial in the smoothest

25 manner possible and with the utmost celerity possible at the same time

1 guaranteeing the full rights, both to the accused and to the Prosecution

2 and, of course, without relegating the rights of victims and their plight

3 to the background.

4 I'll start first with the Rule 98 bis standard. This Chamber

5 highlights that there is agreement between the parties that the last

6 amendment to Rule 98 bis does not in any way change the standard of review

7 to be applied by the Trial Chamber in its Rule 98 bis exercise which

8 therefore remains that set out and repeatedly applied by these Trial

9 Chambers, set out in the Jelisic appeals judgement. I will quote from the

10 Jelisic appeals judgement because this would explain what the criterion is

11 and the standard is:

12 "The Appeals Chamber considers that the reference to Rule 98 bis

13 to a situation in which the evidence is insufficient to sustain a

14 conviction means a case in which in the opinion of the Trial Chamber the

15 Prosecution evidence, if believed, is insufficient for any trier of fact

16 to find that guilt has been proved beyond reasonable doubt. In this

17 respect, the Appeals Chamber follows its recent holding in the Delalic

18 appeal judgement where it said the test applied is whether there is

19 evidence, if accepted, upon which a reasonable Tribunal of fact could be

20 satisfied beyond reasonable doubt of the guilt of the accused on the

21 particular charge in question. The capacity of the Prosecution evidence,

22 if accepted, to sustain a conviction beyond reasonable doubt by a

23 reasonable trier of fact is the key concept. Thus the test is not whether

24 the trier would in fact arrive at the conviction beyond reasonable doubt,

25 on the Prosecution evidence, if accepted, but whether it could, at the

1 close of the case for the Prosecution, the Chamber may find that the

2 Prosecution evidence is sufficient to sustain a conviction beyond

3 reasonable doubt, and yet, even if no Defence evidence is subsequently

4 adduced, proceed to acquit at the end of the trial if in its own view of

5 the evidence, the Prosecution has not in fact proved the guilt beyond

6 reasonable doubt."

7 Now, the Trial Chamber has examined all the evidence tendered by

8 the Prosecution, as well as the documents that have been exhibited by the

9 Defence, and has applied this standard when considering each one of the

10 six counts contained in the Oric indictment, and comes to the following

11 conclusions.

12 I will start first with the legal requirements for Article 3 under

13 the ICTY Statute, and that will give you an idea of the law that we

14 applied before reaching our conclusions. The Accused is charged under

15 second -- the second amended indictment with six counts of violations of

16 the laws and customs of war pursuant to Article 3 of the Statute of the

17 Tribunal and the Accused is precisely charged with murder and cruel

18 treatment pursuant to Article 3 of the Statute and Common Article 3(1)(A)

19 of the Geneva Conventions of 1949. He is then also charged with wanton

20 destruction of cities, towns or villages, not justified by military

21 necessity and with plunder of public or private property pursuant to

22 Article 3(B) and (E) of the Statute respectively.

23 Accordingly, the very first exercise that we carried out was to

24 establish what are the legal requirements for Article 3 of the Statute to

25 subsist and then proceed to establish case by case whether for the

1 purposes of Rule 98 the Prosecution has reached the standard to which I

2 referred to earlier. Article 3 of the Statute is entitled "Violations of

3 the laws or customs of war." The expression or this expression is a

4 traditional term of art used in the past which has now largely been

5 replaced by the more recent and comprehensive notion of international

6 humanitarian law. Article 3 of the Statute thus constitutes a residual

7 clause covering all violations of humanitarian law not falling under

8 Articles 2, 4 or 5 of the Statute, including but not limited to violations

9 of the Hague law on international conflicts and violations of Common

10 Article 3 of the Geneva Conventions of 1949 to which later on I will be

11 referring to as Common Article 3.

12 For an offence to be adjudicated under Article 3 of the Statute, a

13 state of armed conflict must have existed at the time of the -- at the

14 time the offence was committed and, in addition, the offence must be

15 closely related to the -- the offence must be closely related to the armed

16 conflict.

17 I shall deal next with the existence of an armed conflict, and

18 this is the legal part first, and then I will come to facts and findings

19 later. According to the jurisprudence of this Tribunal an armed conflict

20 exists whenever there is a resort to armed force between states or

21 protracted armed violence between governmental authorities and organised

22 armed groups or between such groups within a state.

23 The legal position as we see it with regard to the nexus that is

24 required between the acts of the accused and the armed conflict, this is

25 what we have to say. The requirement that the acts of the accused be

1 closely related to the armed conflict does not necessitate that the

2 offence be committed whilst fighting is actually taking place or at the

3 scene of combat. The laws of war apply and continue to apply to the whole

4 of the territory under the control of one of the parties to the conflict

5 whether or not actual combat takes place there until a general conclusion

6 of peace or a peaceful settlement is achieved. The armed conflict need

7 not have been the cause of the commission of the crime but the existence

8 of an armed conflict must, at a minimum, have played a substantial part in

9 the perpetrator's ability to commit it. His decision to commit it, the

10 manner in which it was committed, or the purpose for which it was

11 committed.

12 That requirement would be fulfilled inter alia if the offence was

13 committed either during or in the aftermath of the fighting provided that

14 it is committed in furtherance of or at least under the guise of the

15 situation created by the fighting.

16 There are then in this context the so-called four Tadic conditions

17 which must be satisfied before we can -- before this Trial Chamber or any

18 other Chamber can ultimately convict an accused under Article 3 of the

19 Statute. In the Tadic Jurisdiction Decision, the Appeals Chamber

20 indicated that for a rule of international humanitarian law to fall under

21 Article 3 of the Statute, the following conditions or requirements need to

22 exist or be satisfied. First, the violation must constitute an

23 infringement of a rule of international law. Second, the rule must be

24 customary in nature or if it belongs to treaty law, the required

25 conditions must be met. Third, the violation must be serious, and last

1 but not least, the fourth, the violation of the rule must entail under

2 customary or conventional law the individual criminal responsibility of

3 the person breaching the rule.

4 What comes next is in relation to counts 1 and 2 only, but an

5 additional requirement for the applicability of Article 3 of the Statute,

6 as it relates to counts 1 and 2 of the indictment, is, according to

7 jurisprudence of this Tribunal, that the underlying violation must have

8 been committed against persons taking no active part in the hostilities.

9 In view of the jurisprudence of this Tribunal, this requirement extends to

10 any individual not taking part in hostilities, including members of the

11 armed forces who have laid down their arms, and those placed hors de

12 combat by sickness, wounds, detention or any other cause.

13 Because of the various submissions that we have heard from both of

14 you, I need to address also a few further legal considerations. The

15 charges of murder and cruel treatment in counts 1 and 2 are brought under

16 Common Article 3. It is undisputed that Article 3 of the Statute covers

17 violations of Common Article 3. Common Article 3 which has acquired the

18 status of customary international law applies regardless of the

19 international or internal character of the armed conflict, because as

20 affirmed by this Tribunal in the Celebici case, and this is the Appeals

21 Chamber speaking, the principles enshrined therein are so fundamental that

22 they are regarded as governing both internal and international conflict.

23 The charges of wanton destruction of cities, towns or villages,

24 not justified by military necessity and plunder of public or private

25 property are specifically enumerated in paragraphs B and C respectively of

1 Article 3 of the Statute as violations of the laws or customs of war.

2 They are in turn based on the 1907 Hague Convention, convention 4,

3 respecting the laws and customs of war on land and the regulations annexed

4 to it which have become rules of international customary law, as you know,

5 and these have been interpreted and applied by the Nuremberg Tribunal.

6 The Defence argues that because the charges of wanton destruction

7 and plunder derive from The Hague rule or Hague law they only apply in an

8 international armed conflict and that there is no warrant - I'm quoting

9 from the Defence pre-trial brief - there is no warrant for considering

10 that Articles 3(B) and (E) apply in an internal conflict.

11 The Trial Chamber makes it clear at the outset that the issue of

12 the -- of application of the prohibition of wanton destruction and plunder

13 pursuant to Article 3 of the Statute to internal armed conflicts has been

14 resolved already in the affirmative by the Appeals Chamber in the

15 Hadzihasanovic and Kubura case. The Appeals Chamber held that customary

16 international law as it had developed at the relevant time did not allow

17 for the extent of protection of civilian property against destruction to

18 vary depending on the nature of the conflict. The same is true for the

19 prohibition of plunder which is prohibited under customary international

20 law irrespective of whether the conflict in question is internal or

21 international.

22 I now come to the facts and findings of this Trial Chamber in

23 relation to the various points that I have dealt with.

24 I will deal first with facts and findings relating to the

25 existence of an armed conflict. The Prosecution alleges that at all times

1 relevant to the indictment, that is between the 10th of June 1992 to the

2 20th of March 1993 a state of armed conflict existed in the territory of

3 Bosnia and Herzegovina. The Trial Chamber comes to the conclusion that

4 for the purpose of Rule 98 bis, the Prosecution has adduced evidence

5 which, if believed, is capable of proving beyond reasonable doubt that a

6 state of armed conflict indeed existed on the territory of Bosnia and

7 Herzegovina during the said period of time. The testimony of Pyers

8 Tucker, of and Andrew James Gow, of Becir Bogilovic, of

9 General Sead Delic, and a large number of exhibited documents are at the

10 basis of the Trial Chamber's conclusion.

11 As regards the nexus between the acts of the accused and the armed

12 conflict, as regards this, we have to say the following: The Trial

13 Chamber comes to the conclusion that for the purpose of Rule 98 bis, the

14 Prosecution has adduced evidence which, if believed, is capable of proving

15 beyond reasonable doubt such nexus. In reaching this conclusion, the

16 Trial Chamber has considered the testimony of Pyers Tucker, of Andrew

17 James Gow, of Becir Bogilovic, of Nedret Mujkanovic of Slavoljub Zikic, of

18 Slavisa Eric, of Branislav Gligic, of General Sead Delic, and a large

19 number of exhibited documents in which the accused's name features in

20 relation to the armed conflict and some of the events thereof.

21 As regards the four Tadic conditions, I've already stated that

22 Common Article 3 of the -- to the 1949 Geneva Conventions and the rules

23 contained in the 1907 Hague Conventions form part of customary

24 international law. In view of this the Trial Chamber finds that there can

25 be no doubt and that the first and second Tadic conditions are satisfied.

1 With regard to the third and fourth Tadic conditions, the Trial

2 Chamber has no doubt that the crimes of murder and cruel treatment breach

3 a rule protecting important values and involve grave consequences for the

4 victims.

5 As regards the crime of wanton destruction under Article 3(B) of

6 the Statute, the Trial Chamber considers that the destruction must be both

7 serious in relation to an individual object, as well as cover a

8 substantial range of a particular city, town, or village. Since one of

9 the requirements of this crime is that the damage be on a large scale, it

10 follows that this also satisfies the third Tadic condition. As regards

11 the seriousness of plunder, under Article 3 of the Statute, the Trial

12 Chamber observes that the acquisition or appropriation of property must

13 cause grave consequences for the victims. We have no doubt at all that

14 the offence of plunder, under Article 3(E) of the Statute, constitutes a

15 serious violation of international humanitarian law and therefore

16 satisfies the third Tadic condition. As regards the fourth Tadic

17 condition, in relation to all the crimes with which the Accused stands

18 charged, the case law of this Tribunal has repeatedly affirmed that these

19 entail individual criminal responsibility under international law. This,

20 the fourth Tadic condition, is therefore also satisfied.

21 Relating to the additional requirement under Common Article 3

22 which is important for the purposes of counts 1 and 2, it is the

23 conclusion of the Trial Chamber that the Prosecution has adduced evidence

24 which, if believed, could prove beyond reasonable doubt that those who

25 were allegedly killed or were subjected to cruel treatment as alleged in

1 the indictment were persons taking no active part in the hostilities at

2 the relevant time. The basis for the Trial Chamber's conclusion with

3 regard to both murder and cruel treatment rests mainly on the testimony of

4 the witnesses who, according to the indictment, were the victims of cruel

5 treatment.

6 I will now come to count 1, which is one of murder, being a

7 violation of the laws or customs of war punishable under Articles 3 and

8 7(3) of the Statute and recognised by Article 3(1)(A) of the Geneva

9 Conventions. The definition of murder as a violations of the laws or

10 customs of war is now settled in the jurisprudence of this Tribunal. The

11 Trial Chamber adopts the following elements of the crime of murder.

12 First, that the person is dead. Second, that the death was caused by an

13 act or omission of the accused or of a person or persons for whose acts or

14 omissions the accused bears criminal responsibility. As regards the actus

15 reus of murder, this consists in the action or omission of the perpetrator

16 resulting in the death of the person. Ultimately the Prosecution needs to

17 prove beyond reasonable doubt that the perpetrators conduct contributed

18 substantially to the death of the person. Proof beyond reasonable doubt

19 that the person was murdered does not necessarily require that the dead

20 body of that person has been retrieved or recovered. The fact of a

21 person's death can be inferred circumstantially from all of the evidence

22 presented to the Trial Chamber provided that the only reasonable inference

23 is that the person is dead as a result of the acts or omissions of the

24 perpetrator. Intent is required to fulfil the mens rea of murder. The

25 mens rea for murder is satisfied when the act was done or the omission was

1 made by the perpetrator or a person or persons for whose acts or omissions

2 the accused bears responsibility with an intent to kill or to inflict

3 grievous bodily harm or serious injury in the reasonable knowledge and

4 with the acceptance that such act or omission was more likely than not to

5 cause death.

6 In the Celebici case, the Trial Chamber held that there was no

7 difference in the mens rea requirement for wilful killing being a grave

8 breach of the 1949 Geneva Conventions pursuant to Article 2 of the Statute

9 and murder being a violation of the laws or customs of war pursuant to

10 Article 3 of the Statute. The mens rea is the same. The Trial Chamber

11 also holds that intent includes what has on occasions been referred to in

12 the jurisprudence of this Tribunal as dolus eventualis, defined as

13 comprising both knowledge of the risk and acceptance of the risk.

14 Negligence and gross negligence do not satisfy the requirement for intent.

15 However, since the following point was raised by the Defence, the Trial

16 Chamber adopts the approach of other Trial Chambers in holding that

17 premeditation is not a requirement for establishing the mental element or

18 the formal element of the crime of murder.

19 I now come to the facts and findings relating to murder. For the

20 purpose of count 1, the Prosecution alleges that the following persons

21 were killed or murdered: Dragutin Kukic, Jakov Dokic, Dragan Ilic,

22 Milisav Milovanovic, Kostadin Popovic, Branko Sekulic, and Bogdan

23 Zivanovic. The Trial Chamber comes to the conclusion that there is

24 evidence on the basis of which, if believed, a reasonable trier of fact

25 could hold beyond reasonable doubt that both the actus reus and the mens

1 rea for murder have been demonstrated in all cases except for that

2 relating to the alleged death of Bogdan Zivanovic, for whom no evidence

3 capable of supporting a conviction has been adduced. This exception has

4 also been acknowledged by the Prosecution in the course of their

5 submissions of the 3rd of June 2005. In reaching this conclusion, the

6 Trial Chamber mainly relies on the testimony of Nedjeljko Radic, Andja

7 Radovic, Vidosav Dzokic, Witness C007, Vojka Milovanovic, and Nikola

8 Popovic.

9 I now come to 7(3) -- Article 7(3) responsibility, that is command

10 responsibility. In fact what remains to be seen in relation to count 1 is

11 whether, as regards Article 7(3) responsibility, which is the only kind of

12 criminal responsibility charged against the Accused in count 1, the

13 Prosecution has adduced sufficient evidence capable of sustaining a

14 conviction.

15 The Prosecution alleges that the Accused from about September 1992

16 to August 1995 knew or had reason to know that his subordinates were about

17 to plan, prepare or execute the imprisonment, killing and/or cruel

18 treatment of Serbs detained at the Srebrenica police station and the

19 building behind the Srebrenica municipal building or had done so and he

20 failed to take the necessary it and reasonable measures to prevent such

21 acts or to punish the perpetrators thereof. The principle of superior

22 criminal responsibility for failure to prevent or punish crimes committed

23 by subordinates is well established, as you all know, in conventional and

24 customary law applicable to both international and internal armed

25 conflicts. The jurisprudence of this Tribunal requires three elements to

1 be established, to be satisfied, for the existence of superior criminal

2 responsibility. First, that there is a superior-subordinate relationship

3 between the accused and the perpetrators. Second, that the accused knew

4 or had reason to know that a crime had been or was about to be committed

5 by the perpetrators. And third, that the accused failed to take the

6 necessary and reasonable measures to prevent the commission of the crime

7 or punish the perpetrators thereof. I will deal with these three elements

8 sequitur, one by one, one after the other.

9 The Trial Chamber recalls that the doctrine of command

10 responsibility is ultimately predicated on the power of the superior to

11 control the acts of his subordinates. Individuals in position of

12 authority may incur criminal responsibility under the doctrine of command

13 responsibility on the basis of their de jure as well as de facto positions

14 as superiors. The superior may be a military commander but he may also be

15 a civilian authority. According to the case law of this Tribunal, whereas

16 a formal appointment is an important aspect to consider for command

17 responsibility, de facto control in the absence of de facto -- de jure

18 authority may suffice for the purpose of incurring criminal

19 responsibility. It is noteworthy that in many conflicts there may be only

20 de facto self-proclaimed governments with their de facto armies and

21 paramilitary groups. Thus the perpetrator that -- thus -- that the

22 perpetrator was the subordinate of the accused of -- of an accused does

23 not import a requirement of direct or formal subordination. Likewise the

24 mere temporary nature of a military unit does not per se exclude a

25 relationship of subordination between the members of the unit and its

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1 commander. What is decisive in determining criminal liability under

2 Article 7(3) is whether the superior wields effective control over the

3 persons committing the underlying violations of international humanitarian

4 law, in the sense of having the material ability to prevent or punish the

5 commission of these offences. In this regard, substantial influence by

6 itself is not indicative of a sufficient degree of control. It would have

7 to meet the threshold of effective control. Whether the superior has the

8 requisite level of control is a matter which must be determined on the

9 basis of the evidence presented at trial.

10 The Defence differs from this position in so far as it submits

11 that identification of persons who committed crimes must be established.

12 However, in the Trial Chamber's view, in order to ascertain the existence

13 of a superior-subordinate relationship, identification of the

14 perpetrators, for instance through their names, is not required in order

15 to prove the superior's effective control over the -- those perpetrators.

16 However, it must be established at least that the individual who committed

17 the crime was within a unit or a group under the control of the superior.

18 The second element, knew or had reason to know. A superior

19 must -- may possess the mens rea required to incur criminal liability

20 under Article 7(3) of the Statute where, first, he had actual knowledge

21 established through direct or circumstantial evidence that his

22 subordinates were committing or about to commit a crime under Article 3 of

23 the Statute in this case, or, secondly, that he had information which

24 would put him on notice of such offences by his subordinates. In the

25 absence of direct evidence, the superior's actual knowledge that his

1 subordinates were committing or about to commit crimes cannot be presumed.

2 It must be established by way of circumstantial evidence. According to

3 the case law of this Tribunal, there are several indicia which the Trial

4 Chamber may consider in reaching its conclusion, and these have been

5 considered by us. What constitutes the standard had reason to know has

6 been discussed at length in the jurisprudence of this Tribunal. In this

7 regard the Defence claims that the Accused had no specific information in

8 his possession providing notice of the risk of offences having been

9 committed or about to be committed, the Trial Chamber notes that the

10 Celebici trial judgement states that a superior can be held responsible,

11 criminally responsible, if some specific information was in fact available

12 to him which would have put him on notice of offences committed by his

13 subordinates. However, it explained that this information need not be

14 such that can by itself lead to the conclusion of the existence of such

15 crimes.

16 This finding has been refined by the jurisprudence of the

17 Tribunal, to which -- to mean that a superior must have had some general

18 information in his possession which would put him on notice of unlawful

19 acts by his subordinates. Such information may be written or oral but

20 does not need to have the form of specific reports submitted, nor to

21 provide specific information about unlawful acts committed or about to be

22 committed. The Trial Chamber concurs with this interpretation.

23 As regards the third element, necessary and reasonable measures to

24 prevent or punish. A legal duty exists upon superiors to take all the

25 necessary and reasonable measures to prevent the commission of crimes or

1 if crimes have been committed to punish the perpetrators but a superior

2 may only be held responsible for failing to take measures that are within

3 his powers, in other words those that are within his material possibility.

4 The duty to prevent or punish does not provide the Accused with

5 alternative and equally satisfying options but with two distinct sets of

6 obligations. The duty to prevent rests on a superior at any time before

7 the commission of a crime by a subordinate if he acquires knowledge that

8 such a crime is being prepared or planned, or when he has reasonable

9 grounds to suspect that such crimes are being or may be committed. The

10 duty to punish arises only after a crime has been committed. An Accused

11 cannot be found liable under the principle of superior responsibility for

12 crimes committed by a subordinate before the said Accused assumed command

13 over that subordinate. The Trial Chamber affirms that in conformity with

14 the principle that nemo ad impossibilia tenetur, a superior is not obliged

15 to perform the impossible. It is the accused's degree of effective

16 control, if at all, over his subordinates which has guided and will

17 continue to guide the Trial Chamber in determining whether he took the

18 necessary and reasonable measures to prevent the crime or to punish a

19 perpetrator of the crime.

20 As held in the Blaskic Appeals Judgement, there is no hard and

21 fast rule as to what at law constitutes necessary and reasonable measures

22 because this ultimately depends on the particular evidence in each case.

23 This is important for the purpose of the Rule 98 bis exercise.

24 Lastly, before I come to the facts, the jurisprudence of the

25 Tribunal has consistently held that the existence of a causal nexus

1 between a superior's failure to prevent a subordinate's crime and the

2 occurrence of these crimes is not necessary in order to establish the

3 third element of Article 7(3). The Trial Chamber concurs with this view.

4 This is the law in relation to Article 7(3) of the Statute. Now I

5 come to the facts and findings for the purpose of Rule 98 bis.

6 The -- I will deal first with facts and findings relating to

7 superior-subordinate relationship. In the majority of the alleged murders

8 in count 1 of the indictment, it is not possible to identify each

9 individual perpetrator from the evidence adduced by the Prosecution.

10 Dragutin Kukic is alleged to have been killed in the Srebrenica police

11 station while the rest were supposedly killed in the building behind the

12 Srebrenica municipal building. The approach taken by the Trial Chamber

13 therefore has been to establish if, for the purpose of and within the

14 parameters of Rule 98 bis, the Prosecution has adduced evidence which, if

15 believed, could lead the trier of fact to conclude beyond reasonable doubt

16 that the Accused had de jure or where this is not shown, de facto superior

17 authority over the guards at the Srebrenica police station and in the

18 building behind the Srebrenica municipal building.

19 The Trial Chamber has considered all the relevant evidence and

20 comes to the conclusion that there is sufficient evidence on the basis of

21 which, if believed, a reasonable trier of fact could hold beyond

22 reasonable doubt that there existed at least a de facto

23 superior-subordinate relationship between the accused and the alleged

24 perpetrators at the Srebrenica police station in September 1992 when

25 Dragutin Kukic was allegedly killed. Similarly, the Trial Chamber also

1 comes to the conclusion that there is sufficient evidence on the basis of

2 which, if believed, a reasonable trier of fact could hold beyond

3 reasonable doubt that there existed at least a de facto

4 superior-subordinate relationship between the accused and the alleged

5 perpetrators at the building behind the Srebrenica municipal building

6 between 6th February and 20th March of 1993 when the other persons I

7 already mentioned were allegedly killed.

8 There is also evidence which suggests a de jure

9 superior-subordinate relationship but this will be one of the hard nuts to

10 crack when the trial comes to final judgement and the Trial Chamber will

11 not go into it now as what has been established suffices for the purpose

12 of the Rule 98 bis.

13 The Trial Chamber bases its conclusions on the evidence of

14 Slavoljub Zikic, Svetlana Trifunovic, Ratko Nikolic, Ilija Ivanovic, Becir

15 Bogilovic, Nedret Mujkanovic, Hakija Meholjic, Mensud Omerovic, Pyers

16 Tucker, and General Sead Delic. The Trial Chamber also makes reference to

17 Exhibit P329 in part 3 of it, where the accused is reported as saying that

18 that the commander of the military police and the detention centre was

19 Mirzet Halilovic as well as Exhibit P458.

20 Findings as regards actual or imputed knowledge of the accused of

21 the killings. The Trial Chamber comes to the conclusion that for the

22 purpose and within the parameters of Rule 98 bis, the Prosecution lass

23 adduced evidence on the basis of which, if believed, a reasonable trier of

24 fact could hold beyond reasonable doubt that the accused had actual or

25 imputed knowledge of the killing of Dragutin Kukic allegedly committed at

1 the Srebrenica police station in September 1992.

2 The Trial Chamber bases itself mainly on the evidence of Nedjeljko

3 Radic. Similarly the Trial Chamber comes to the conclusion that for the

4 purpose of and within the parameters of Rule 98 bis, the Prosecution has

5 adduced evidence on the basis of which, if believed, a reasonable trier of

6 facts could hold beyond reasonable doubt that the Accused had actual

7 knowledge or imputed knowledge of the killing of the other persons I

8 mentioned earlier, allegedly committed at the building beyond the

9 Srebrenica municipal building between the 6th February and the 20th March

10 of 1993. The Trial Chamber bases its conclusions mainly on the testimony

11 of Milenija Mitrovic, Stana Stamenic, Ilija Ivanovic and Pyers Tucker.

12 As regards the failure by the Accused to prevent or punish the

13 said killings, the Trial Chamber comes to the conclusion that the

14 Prosecution has adduced evidence on the basis of which, if believed, a

15 reasonable trier of fact would hold beyond reasonable doubt that the

16 Accused failed to prevent or punish the crimes of murder as charged in

17 count 1. The Trial Chamber bases its conclusions that there is such

18 evidence regarding the alleged failure to prevent on the evidence of

19 Nedjeljko Radic but mainly on Exhibit P329. As regards the alleged

20 allegation that the accused failed to punish, the Trial Chamber rests --

21 mainly considered Exhibit P329 in its third part.

22 Conclusion of the Trial Chamber on count 1. The Trial Chamber

23 therefore comes to the conclusion that there is sufficient evidence upon

24 which, if believed, a reasonable trier of fact could be satisfied beyond

25 reasonable doubt of the guilt of the accused under Article 3 and 7(3) of

1 the Statute of this Tribunal of the murders mentioned in paragraph 25 in

2 the indictment to which count 1 refers with the exception of the alleged

3 murder of Bogdan Zivanovic.

4 I now come to count 2, cruel treatment, this being a violation of

5 the laws or customs of war punishable under Article 3 and 7(3) of the

6 Statute and recognised by Article 3(1)(A) of the Geneva Conventions. The

7 Trial Chamber adopts the following elements for the crime of cruel

8 treatment. First, an act or omission causing serious mental suffering or

9 serious physical suffering or serious injury or constituting a serious

10 attack on human dignity. Second, such act or omission is committed with

11 the intent to cause serious mental suffering or serious physical suffering

12 or serious injury or a serious attack on human dignity. The Trial

13 Chambers of this Tribunal have consistently recognised that the actus reus

14 of cruel treatment in an internal armed conflict under Article 3 is

15 equivalent to inhumane treatment in an international armed conflict under

16 Article 2. The serious mental suffering or serious physical suffering or

17 serious injury or serious attack on human dignity should be assessed

18 taking into account both objective factors concerning the severity of the

19 said conduct and the subjective factors relating to the particular victim.

20 The Trial Chamber points out that the mens rea for cruel treatment under

21 Article 3 of the Statute is the same as the mens rea for inhumane acts

22 under Article 5 of the Statute. The required mens rea is met where the

23 accused at the time of the act or of the omission had the intention to

24 inflict serious mental suffering or serious physical sufferings or serious

25 injury or a serious attack on -- upon human dignity of the person or where

1 he knew and accepted that his act or omission was more likely than not to

2 cause one of the mentioned sufferings or injuries. As in the case of the

3 intent required for the crime of murder, the Trial Chamber holds that the

4 intent includes dolus eventualis, defined as comprising both knowledge of

5 the risk and acceptance of it.

6 I come to fact and findings. For the purpose of count 2, the

7 Prosecution alleges that the following persons were cruelly treated.

8 First, between 24 September 1992 and 16 October 1992, at the Srebrenica

9 police station, first Nedjeljko Radic and Slavoljub Zikic, Zoran

10 Brankovic, Nevenko Bubanj, Veselin Sarac, and then between the 15th of

11 December 1992 and the 20th March, initially in the police station and

12 thereafter at the building behind the Srebrenica municipal building, Ilija

13 Ivanovic, Ratko Nikolic, Rado Pejic, Stanko Mitrovic, Miloje Obradovic and

14 Mile Trifunovic. The Trial Chamber comes to the conclusion that there is

15 evidence on the basis of which, if believed, a reasonable trier of fact

16 could hold beyond reasonable doubt that both the actus reus and the mens

17 rea for cruel treatment have been demonstrated beyond reasonable doubt in

18 all cases except that relating to Miloje Obradovic, for whom no evidence

19 capable of supporting a conviction has been adduced. Of course, this is

20 being said only for the purpose of Rule 98 bis; that is, on a prima facie

21 basis. This exception that I have mentioned relating to Mile Obradovic

22 has been acknowledged by the Prosecution in the course of their submission

23 of the 3rd June 2005.

24 In reaching this conclusion, the Trial Chamber mainly relies on

25 the testimony of Nedjeljko Radic, Slavoljub Zigic, Ilija Ivanovic, Andja

1 Radovic, Branimir Mitrovic, Svetlana Trifunovic, Pyers Tucker, Witness

2 C007, and Exhibits P43, 83, 384, 386, 454, 464, and 476.

3 I will now deal with Article 7(3), responsibility. As in the case

4 of count 1, what remains to be seen is whether, as regards Article 7(3),

5 command responsibility, which is hereto the only kind of criminal

6 responsibility charged against the accused in count 2, the Prosecution has

7 adduced sufficient evidence capable of sustaining a conviction if believed

8 within the parameters of the Rule 98 bis standard that I referred to

9 earlier. The Prosecution alleges that the accused from about September

10 1992 to August 1995 knew or had reason to know that his subordinates were

11 about to plan, prepare or execute the imprisonment, killing or cruel

12 treatment of Serbs detained at the Srebrenica police station and the

13 building behind the Srebrenica municipal building or had done so and he

14 failed to take the necessary and reasonable measures to prevent acts --

15 such acts or to punish the perpetrators thereof. I have already explained

16 the Trial Chamber's position on the principle of superior criminal

17 responsibility for failure to prevent or punish crimes committed by

18 subordinates when dealing with count 1 and what I said then applies also

19 to count 2 and therefore need not be repeated. Therefore, I shall pass on

20 immediately to the Trial Chamber's findings.

21 Findings as regard superior subordinate relationship. As in the

22 case of count 1, even in count 2, it is not possible to identify each

23 individual perpetrator from the evidence adduced by the Prosecution. Even

24 here, therefore, the approach taken by the Trial Chamber has been to

25 establish if, for the purpose of Rule 98 bis, the Prosecution has adduced

1 evidence which, if believed, could lead the trier of fact, a reasonable

2 trier of fact to conclude beyond reasonable doubt that the accused had de

3 jure or where this is not shown, de facto superior authority over the

4 guards at the Srebrenica police station and in the building behind the

5 Srebrenica municipal building.

6 The Trial Chamber has considered all the evidence which is

7 relevant and comes to the same conclusion it reached in this context for

8 the purpose of count 1, namely that there is sufficient evidence on the

9 basis of which, if believed, a reasonable trier of fact could hold beyond

10 reasonable doubt that there existed at least a de facto

11 superior-subordinate relationship between the Accused and the alleged

12 perpetrators at the Srebrenica police station in September and October

13 1992, and at the building behind the Srebrenica municipal building between

14 the 15th of December 1992 and the 20th of March 1993.

15 There is also evidence which suggests a de jure subordinate

16 relation, but as I said earlier this will be left to be considered when

17 this trial comes to final judgement. The Trial Chamber bases its

18 conclusion on the same evidence as that pointed out in the case of count

19 1.

20 Findings as regards actual or imputed knowledge of the accused or

21 cruel -- of the cruel treatment. As in the case of count 1, the Trial

22 Chamber comes to the conclusion that for the purpose of and within the

23 parameters of Rule 98 bis, the Prosecution has adduced evidence on the

24 basis of which, if believed, a reasonable trier of fact could hold beyond

25 reasonable doubt that the accused had actual or imputed knowledge of the

1 cruel treatment inflicted on the persons mentioned in paragraphs --

2 paragraph 24 of the indictment, in the relevant two buildings and -- to

3 which count 2 refers.

4 The Trial Chamber bases itself mainly on the evidence of Nedjeljko

5 Radic, that is of Milenija Mitrovic, Stana Stanisic, Ilija Ivanovic, and

6 Pyers Tucker. Findings as regards -- as regards the failure by the

7 accused to prevent or punish the said cruel treatment, the Trial Chamber

8 comes to the same conclusion it reached for the purposes of count 1,

9 namely that the Prosecution has adduced evidence on the basis of which, if

10 believed, a reasonable trier of fact could hold beyond reasonable doubt

11 that the accused failed to prevent or punish the crimes of cruel treatment

12 as charged in count 2. Again, even in the case of count 2, the Trial

13 Chamber bases its conclusion that there is such evidence regarding the

14 alleged failure to prevent on the evidence of Nedjeljko Radic but mainly

15 on Exhibit P329, and as regards his alleged failure to punish on Exhibit

16 P329.

17 This is therefore our conclusion on count 2. Trial Chamber

18 therefore comes to the conclusion that there is sufficient evidence upon

19 which, if believed, a reasonable trier of fact could be satisfied beyond

20 reasonable doubt of the guilt of the accused under Articles 3 and 7(3) of

21 the Statute of this Tribunal, of the cruel treatment mentioned in

22 paragraph 24 of the indictment to which count 2 refers, with the exception

23 of the alleged cruel treatment of Miloje Obradovic.

24 We will deal now with counts 3 and 5, wanton destruction of

25 cities, towns, or villages, not justified by military necessity, and we

1 will deal with them together, and then we will dispose of the question

2 relating to the different kinds of imputed criminal responsibility

3 separately.

4 The Prosecution has charged the accused with the offence of wanton

5 destruction of cities, towns, or villages, not justified by military

6 necessity.

7 In count 3, it is alleged that the accused is criminally

8 responsible as a commander pursuant to Article 7(3) of the Statute for all

9 incidents of destruction contained in the indictment. In count 5, the

10 Prosecution also charged the Accused with individual criminal

11 responsibility pursuant to Article 7(1) of the Statute, for the

12 destructions or -- but only for the destructions that occurred during the

13 attacks on Fakovici, Bjelovac, and Kravica, and Jezestica, in which the

14 accused according to the indictment is alleged to have participated in

15 person.

16 Wanton destruction of cities, towns offer villages or devastation

17 not justified by military necessary si is listed as a violation of the

18 laws or customs of war under Article 3(B) of the Statute. Article 3(B) of

19 the Statute is in turn based on the 1907 Hague regulations which prohibit

20 the destruction trucks and seizure of enemy property unless imperatively

21 demanded by the necessities of war. The provision was restated in Article

22 6(B) of the Nuremberg charter and in principle 6 of the Nuremberg

23 principles. The Trial Chamber has no doubt at all that the crime

24 described in Article 3(B) of our Statute formed part of customary

25 international law at the time it was -- the relative crime was allegedly

1 committed.

2 According to the jurisprudence of this Tribunal, the crime of

3 wanton destruction consists of the following elements: First the

4 destruction of the property occurred on a large scale; second, the

5 destruction was not justified by military necessity; and third, the

6 perpetrator acted with the intent, including dolus eventualis to destroy

7 the property in question.

8 The protection afforded by Article 3(B) of our Statute includes

9 all property in the territory involved in the conflict, including that

10 located in enemy territory and in territory not under effective

11 occupation. I have already stated earlier on that the Trial Chamber holds

12 that the provisions of Article 3(B) of the Statute apply both to

13 international as well as to internal conflicts. I shall briefly deal with

14 these three elements one by one.

15 Extent of the destruction. The Trial Chamber considers that in

16 order to constitute a violation of the laws or customs of war, the

17 destruction must both serious in relation to an individual object, and

18 cover substantial range of a particular city, town, or village. The

19 sporadic or isolated destruction of houses of a settlement is insufficient

20 to fulfil the qualifications of the crime in question. Regarding the

21 extent of the destruction, the Prosecution contends that the crime of

22 wanton destruction is perpetrated with even the partial destruction of

23 cities, towns or villages. It maintains that there is no requirement in

24 international humanitarian law that any of these settlements must be

25 destroyed in its entirety. The Defence opposes this interpretation in its

1 pre-trial brief, emphasising that the provision makes no reference to

2 partial destruction. The Defence also submitted that there is no precise

3 record of the buildings destroyed and that in the state of the evidence

4 available, there is no way that the Trial Chamber can come to the

5 conclusion that the Prosecution has adduced sufficient evidence to assess

6 the extent of the damage.

7 The Trial Chamber agrees with the Prosecution's submissions

8 insofar as it would amount to an overly narrow reading of the prohibition

9 of wanton destruction to require proof of the total destruction of a city,

10 town or village. The Trial Chamber in reaching its decision has therefore

11 considered on a case-by-case basis, whether the extent of the destruction

12 of each particular relevant village or hamlet that has been proven can be

13 regarded as substantial enough in relation to the overall category under

14 consideration. In doing so, it has also kept in mind the other submission

15 of the Defence that the evidence is insufficient.

16 Our position on military necessity. The Trial Chamber notes that

17 the absence of military necessity is explicitly mentioned in the actus

18 reus of wanton destruction pursuant to Article 3(B) of the Statute; hence,

19 it must be considered a negative element of the crime. As like for other

20 elements of the crime, it is for the Prosecution to prove beyond

21 reasonable doubt that this requirement has been met. The Prosecution

22 submits that the destruction of property was not justified by military

23 necessity and that none of the destroyed objects was a legitimate target.

24 Rather, the destruction is said to have occurred as a result of deliberate

25 attacks directed at civilian objects. The Defence disagrees and states

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1 that the attacks referred to in the indictment constituted legitimate

2 actions against military or otherwise strategic targets with some of the

3 destruction that may have been caused constituting collateral damage. A

4 definition of what can constitute a military objective is given by Article

5 52 of the 1977 additional protocol 1 to the Geneva Conventions. Namely,

6 those objects which by their nature, location, purpose or use make an

7 effective contribution to military action and whose total or partial

8 destruction, capture or neutralisation in the circumstances ruling at the

9 time offers a definite military advantage.

10 The Trial Chamber agrees with the Galic Trial Chamber that an

11 object shall not and should not be attacked when it is not reasonable to

12 believe in the circumstances of the person contemplating the attack,

13 including the information available to him, that the object is being used

14 to make an effective contribution to military action.

15 Our position on the mens rea. The Trial Chamber finds that the

16 mental state required for an accused to be convicted of the crime under

17 Article 3(B) of the Statute is the intent to destroy mentioned, including

18 dolus eventualis, which, as I stated earlier, is defined as foreseeability

19 of the consequences of there conduct -- of the conduct and the acceptance

20 of the results as its very likely consequence.

21 I now come to the findings. The indictment in paragraphs 30 to 34

22 alleges that Bosnian Serb buildings, dwellings, and other property in the

23 following Bosnian Serb villages were wantonly destroyed. On the 21st and

24 27th June 1992, the village of Ratkovici, including the surrounding

25 hamlets of Bradjevina, Ducice, and Gornji Ratkovici. On 8 August 1992,

1 the village of Jezestica, and the hamlet of Bozici. On 5th October 1992,

2 the village of Fakovici, including the surrounding hamlets of Radijevici

3 and Divovici. Between 14th and 19th December 1992, the village or town of

4 Bjelovac and the adjoining hamlet of Sikirici. And lastly, on the 7th and

5 8th January 1993, the village of Kravica and the two nearby villages of

6 Siljkovici and Jezestica.

7 Having examined all the relevant evidence tendered by the

8 Prosecution, the Trial Chamber has come to the conclusion that there is

9 evidence on the basis of which, if believed, a reasonable trier of fact

10 could hold beyond reasonable doubt that the crime of wanton destruction,

11 not justified by military necessity occurred in all the villages and

12 hamlets named -- just named, except for the villages of Radijevici and

13 Bozici, both in the Bratunac municipality. In these two villages, the

14 evidence adduced by the Prosecution does not appear to be sufficient to

15 meet the large-scale requirement of the destruction. Incidentally, the

16 Prosecution concedes that insufficient evidence has been adduced with

17 regard to these two villages.

18 The Trial Chamber bases its conclusion mainly on the testimony of

19 Miljenko Stevanovic, Branislav Gligic, Vaselko Bogidjevic [phoen],

20 Stanislav Stevanovic, Dragan Juric, Miladin Simic, Milo Rankovic, Dragomir

21 Miladinovic, Milodin Bogdanovic [phoen], Slavka Djokic, Novka Bozic

22 [phoen], Slavoljub Zikic, Slavka Martic, Slavoljub Filipovic, Slavisa

23 Eric, and Rato Nikolic. What remains to be seen is the presence of

24 criminal responsibility as alleged by the Prosecution but of course, this

25 exercise we have done only for the purpose of Rule 98 bis.

1 I shall start first with Article 7(3), command responsibility as

2 brought against the Accused in count 3 of the indictment.

3 The Prosecution alleges that the Accused, from about June 1992 to

4 August 1995, knew or had reason to know that his subordinates were about

5 to commit such wanton destruction or had done so in the specified villages

6 and hamlets on or about the indicated dates and failed to take the

7 necessary and reasonable measures to prevent such acts or punish the

8 perpetrators thereof.

9 Earlier on, when dealing with count 1, I explained extensively the

10 Trial Chamber's position on the concept of superior criminal

11 responsibility for failure to prevent or punish crimes committed by

12 subordinates and what I said then applies to count 3 and therefore I am

13 not going to repeat it. I am therefore going to pass on immediately to

14 the Trial Chamber's findings.

15 Findings with regard to superior-subordinate relationship. The

16 Trial Chamber comes to the conclusion that there is evidence which, if

17 believed, is sufficient to prove beyond reasonable doubt or -- that the

18 Muslim forces in Srebrenica which allegedly participated in the attacks

19 during which the wanton destruction is alleged to have occurred, operated

20 in some sort of organised structure and that the Army of Bosnia and

21 Herzegovina had structures, command and control arrangements and the

22 degree and ordering of communication -- and ordering, as early as April

23 1992. This conclusion is of course being reached on a prima facie basis

24 and only within the standard requirements of Article -- of Rule 98 bis.

25 There is also evidence which, if believed, could tend to prove

1 beyond reasonable doubt that by the end of 1992 and early 1993, operations

2 led by the Accused could be considered within the framework of the 2nd

3 Corps of the Army of Bosnia and Herzegovina. There is also evidence

4 which, if believed, could tend to show beyond reasonable doubt that the

5 Accused was first appointed commander of the Srebrenica Territorial

6 Defence staff and later commander of the joint armed forces of the

7 subregion. There is also evidence which, if believed, would tend to show

8 beyond reasonable doubt that, although sometimes disputed, the Accused's

9 authority over local commanders in the Srebrenica area did indeed exist

10 and that local commanders saw him as their commander. In other words,

11 that he had real and effective control. There is also evidence which if

12 believed would show beyond reasonable doubt some kind of organised

13 military structure in which the attacks on the villages and hamlets

14 mentioned in the indictment were planned and executed. There is also

15 evidence that although in the great majority of cases the perpetrators are

16 not identified by name, they are sufficiently recognised as being fighters

17 or soldiers and this is adduced in a way in which, if believed, could

18 sustain beyond reasonable doubt the argument that the Accused had a

19 superior-subordinate relationship with members of these units.

20 In reaching these conclusions, the Trial Chamber relies mainly on

21 the testimony of James Gow on the General Sead Delic, of Nedret

22 Mujkanovic, of Pyers Tucker, Hakija Meholjic, of Branislav Gligic, and on

23 Exhibits P82, 267, and 84, some of the intercepts, particularly P358, 352,

24 355, 359, 363, 361, 362, 270, and last but not least, on the accused's own

25 interview with the Office of the Prosecutor, P328 and 329. In sum, the

1 Trial Chamber comes to the conclusion that for the purpose of Rule 98 bis

2 and for this purpose only, the Prosecution has reached the standard

3 required in relation to this first element of Article 7(3)

4 responsibility.

5 Our findings with regard to the actual or imputed knowledge of the

6 accused of the wanton destruction. Here, too, the Trial Chamber comes to

7 the conclusion that the Prosecution has adduced evidence which, if

8 believed, could lead to the conclusion that the accused had actual or

9 imputed knowledge of the alleged wanton destruction. The Trial Chamber

10 relies mainly on the evidence of Hakija Meholjic, Milenko Stevanovic,

11 Stanisa Stevanovic, Dragomir Miladinovic, Mira Stojanovic, Pyers Tucker,

12 and of Nedret Mujkanovic, as well as on Exhibits P84, P87, P89, P2 and

13 P267.

14 As regards the alleged failure by the accused to prevent or punish

15 the said wanton destruction, our findings are as follows: Upon examining

16 the totality of the relevant evidence, we come -- we have come to the

17 conclusion that the Prosecution has adduced evidence which, if believed,

18 could lead to the conclusion that the Accused failed to prevent or punish

19 the perpetrators for the alleged wanton destruction. The Trial Chamber

20 relies mainly on the evidence of Nedret Mujkanovic as well as on exhibits

21 P270, 362, 351 and 84, unless I say "D," it means that these are all

22 Prosecution exhibits so that I don't have to repeat each time "P."

23 You now tomorrow cot charged individual criminal responsibility

24 under Article 7(1) of the Statute. This type of criminal responsibility

25 is charged against the accused in count 5 which limits it to wanton

1 destruction allegedly caused during the attacks on Fakovici, on 5th

2 October 1992, that on Bjelovac between the 14th and the 19th of December

3 1992, and finally that on Kravica and Jezestica which allegedly took place

4 on the 7th and 8th of January 1993. We have already decided that there is

5 sufficient evidence which, if believed, could lead to the conclusion

6 beyond reasonable doubt that wanton destruction in terms and for the

7 purpose of Article 3 of the Statute occurred in these places on or about

8 the said dates for the sole purpose of Rule 98 bis.

9 In paragraph 37 of the indictment, the Prosecution alleges that

10 the Accused implemented a strategy of wanton destruction to achieve his

11 objectives and that accordingly, he did not make any or sufficient orders

12 to prevent such wanton destruction.

13 The Prosecution alleges that he failed to address the issue of

14 wanton destruction and plunder at the briefing of operations, and that he

15 personally took part in each of these attacks. According to the

16 Prosecution, the Accused continuously failed to make any or sufficient

17 orders to prevent wanton destruction of property and that these acts and

18 omissions instigated the commission of the crimes and aided and abetted

19 the perpetrators to commit such unlawful and wanton destruction, not

20 justified by military necessity.

21 To the great surprise of the Trial Chamber, not to mention the

22 even greater one which was more than apparent on the bewildered faces of

23 Defence counsel, during the oral submissions made by lead counsel for the

24 Prosecution during the sitting of 3rd June, we learnt for the first time

25 that the Prosecution was maintaining that the Article 7(1) individual

1 criminal responsibility charged under count 5 included not only

2 instigation and aiding and abetting, but planning, instigating, ordering,

3 committing or otherwise aiding and abetting in the planning, preparation

4 or execution of the wanton destruction. The same submission has been made

5 in relation to count 6 which deals with the crime of plunder.

6 When asked to substantiate this submission, lead counsel for the

7 Prosecution referred to paragraph 12 of the indictment where it is stated

8 as follows: Individual criminal responsibility includes planning,

9 instigating, ordering, committing or otherwise aiding and abetting in the

10 planning, preparation or execution of any acts or omissions set forth in

11 the indictment. What learned lead counsel for the Prosecution obviously

12 failed to consider fully is what follows immediately after this particular

13 segment in the same paragraph 12, namely, and I'm quoting, "Naser Oric's

14 continued failure to take reasonable measures to prevent wanton

15 destruction of cities, towns or villages, and to punish the perpetrators

16 it would committed such crimes as well as his active involvement in the

17 attacks during which such wanton destruction was caused, instigated the

18 commission of the crimes and aided and abetted the perpetrators of these

19 crimes." In the firm belief of this Trial Chamber, even from the reading

20 of paragraph 12 on the indictment alone, it should have sufficed to

21 understand that while in the first of those two sentences, the concept of

22 individual criminal responsibility is being described and affirmed in

23 general terms, the second sentence specifies which specific areas of

24 individual criminal responsibility the accused is being charged with. We

25 hardly need to emphasise that this is how it should be, especially in the

1 light of the constant and uniform jurisprudence of this Tribunal that an

2 indictment needs to be specific when it comes to the kind of acts and

3 omissions underlying the criminal -- underlying the criminal

4 responsibility the Accused is charged with.

5 That this is precisely the position emerges then in the most

6 obvious manner when we come to counts 5 and 6 themselves, and paragraph

7 37, upon which they are predicated.

8 In paragraph 37 of the indictment, we read, Naser Oric

9 continuously failed to make any or sufficient orders to prevent wanton

10 destruction and plunder of property. These acts and omissions instigated

11 the commission of the crimes and aided and abetted the perpetrators to

12 commit such unlawful and wanton destruction, not justified by military

13 necessity and plunder. These words according to us leave no doubt that in

14 the sphere of 7(1) -- Article 7(1) responsibility, the accused is only

15 being charged with having instigated and aided and abetted the said

16 crimes. Needless to say, aiding and abetting for the purposes of Article

17 7(1) means aiding and abetting the perpetrators in the planning,

18 preparation or executing -- execution of these crimes. But this means the

19 planning, preparation, and execution of these crimes by the perpetrators.

20 The Trial Chamber also feels confident in this decision by what is

21 contained and what was dealt with in the pre-trial briefs and we refer the

22 Prosecution to annex 1 of their own pre-trial brief, particularly to

23 paragraphs 92 to 104, as well as to the pre-trial brief of the Defence at

24 element 1.3. We also wish to refer you to the P562, so-called agreed

25 facts document that was filed recently.

1 I now come to instigating and I will deal first with the legal

2 part of it. The Trial Chamber understands instigating as it has always

3 been described by the various judgements of this Tribunal.

4 With regard to the participants' conduct as element of the actus

5 reus, instigating is prompting another to commit the offence. On the one

6 hand, this needs more than merely facilitating the commission of the

7 principal offence, as it may suffice for adding aiding and abetting, it

8 rather requires some kind of influence the principal perpetrator by way of

9 inciting, soliciting or otherwise inducing him or her to commit the crime.

10 On the other hand, although the exercise of influence would hardly

11 function without some sort of capability of impressing other -- other

12 people, instigation, different from ordering, which implies at least a

13 fact actual superior-subordinate relationship, does not presuppose any

14 kind of superiority. Instigation can be performed by any means, both by

15 express or implied conduct as well as by acts or omissions. Provided that

16 in the latter case, under the given circumstances, the instigator is

17 obliged to prevent the crime from being brought about. Instigation to war

18 crimes needs either -- neither to be direct and public nor to require the

19 instigator's presence at the scene of the crime. Thus instigating

20 influence can be generated both face to face and by intermediaries as well

21 as exerted to a smaller or larger audience provided that the instigator

22 has the corresponding intent.

23 The necessary link between the instigator instigating conduct and

24 the principal crime committed commonly described as the causal nexus or

25 causal relationship is not to be understood as requiring proof that --

1 requiring proof in the extent of a condicio sine qua non, it suffices that

2 the instigation of the accused was a substantially contributing factor in

3 the commission of the crime.

4 Let me come to the facts and findings relating to instigating.

5 Admittedly, the evidence adduced by the Prosecution to prove instigation

6 by the accused for the commission of the crime of wanton destruction is

7 not much. But for the purpose of Rule 98 bis, the exercise required from

8 this Trial Chamber is obviously less demanding and less heavy than the one

9 it will have to do at the end of the trial when it will deliver judgement.

10 For the purpose of Rule 98 bis, the Trial Chamber comes to the conclusion

11 that there is evidence which, if believed, could lead to the conclusion

12 that with regard to the attacks to which counts 5 refers, his alleged

13 presence and participation, as well as his failure to try to prevent

14 wanton destruction, when this was within his possibility, could amount to

15 instigation. The Trial Chamber relies mainly on Exhibit P329, that is his

16 own interview, on the testimony of Nedret Mujkanovic, that of Hakija

17 Meholjic and also but particularly on the interview of the Accused.

18 All in all, therefore, the Trial Chamber comes to the conclusion

19 that the Rule 98 bis standard has been reached for the purposes of the

20 alleged allegation.

21 The complete picture will of course be reviewed when we come to

22 final judgement.

23 Aiding and abetting. I'll start first with the legal outline of

24 what we consider necessary. The Trial Chamber holds that aiding and

25 abetting may be constituted by any contribution to the planning,

1 preparation or execution of a finally completed crime provided that, on

2 one hand, this falls short of one's own co-perpetration in the planning,

3 instigation or ordering of the crime. And on the other hand, is

4 substantially and efficient enough to make the performance of the crime

5 possible or at least easier. Within this reach, any kind of physical or

6 psychological, verbal or instrumental assistance or support regardless

7 whether this is rendered directly to the perpetrators or by way of an

8 intermediary as well as irrespective of whether the participant was

9 present or removed both in time and place from the actual commission of

10 the crime, may suffice as furthering or facilitating the performance of

11 the crime provided that it was rendered before, during or after the

12 principal act yet still prior to the full completion of the crime.

13 To the same degree of ins -- as instigating, aiding and abetting

14 can be fulfilled by express or implied conduct, as well as constituted by

15 acts or omissions, provided that the latter -- in the latter case, under

16 given circumstances, the Accused was indeed obliged to prevent the crime

17 from being brought about. This can in particular become a -- very

18 relevant in situations in which a person is aware of a crime to be

19 committed while being present. However, participating in a crime does not

20 require presence at the time and place when and where it is performed.

21 While being present at the scene of a crime, without preventing it from

22 occurring, does not per se constitute aiding and abetting. This holds

23 only, however, as long as there is no duty to act as one may be derived --

24 as one may drive -- as it may be derived from a bystander's position of

25 authority as a superior or actual leader. A similar situation is being

1 expected to intervene -- a similar situation of being expected to

2 intervene may arise when a person by his activities, has knowingly created

3 the risk of enticing people to engage in criminal acts. If in such

4 situations of higher authority and/or antecedent dangerous conduct, the

5 presence on the scene of the offence is apparently even conceived of as an

6 encouragement or approval of a crime about to be committed, it will be a

7 short step beyond the border line from mere omission by failure to act to

8 active aiding and abetting, if not even amounting to instigation. This

9 can in particular apply to cases of an approving spectator or when the

10 presence of a superior can be an important indicium for encouragement and

11 support. With regard to the link between aiding and abetting and the

12 principal crime committed in accordance with the case law of this

13 Tribunal, the Prosecution is not required to prove that the principal

14 crime would not have been committed were it not for aiding and abetting,

15 still, however, as indicated by requiring a substantial or significant

16 affect, the aiding and abetting contribution according to its supporting

17 character must further or at least facilitate the commission of the crime.

18 And we come to the findings.

19 Once more, the same evidence that for the purpose of Rule 98 bis

20 supports the charge of instigation within Article 7(1), individual

21 criminal responsibility, sustains the charge of aiding and abetting the

22 commission of the crime of wanton destruction under count 5. For the

23 purpose of Rule 98 bis the Trial Chamber does not believe it needs to say

24 more than this for the time being, and therefore comes to the conclusion

25 that evidence has been adduced which, if believed, could lead to the

1 conclusion beyond reasonable doubt that there has been aiding and abetting

2 of -- on the part of the Accused of the crime of wanton destruction as

3 charged in count 5.

4 Conclusion, on counts 3 and 5. The Trial Chamber therefore comes

5 to the conclusion that there is sufficient evidence upon which, if

6 believed, a reasonable trier of fact could be satisfied beyond reasonable

7 doubt of the guilt of the Accused under Articles 3(B) and 7(3) and 7(1) of

8 the Statute of this Tribunal, that is of wanton destruction of cities,

9 towns or villages, not justified by military necessity. This being a

10 violation of the laws and customs of war and which is brought against the

11 accused in counts 3 and 5 of the indictment, with the exception of the

12 villages of Radijevici and Bozici, for which no evidence has been adduced

13 capable of sustaining a conviction.

14 And we come to counts 4 and 6, namely plunder of public or private

15 property. I just want to confirm, we haven't got much left. Can we

16 proceed? I mean, do you have enough tape to proceed for another 15

17 minutes? I can't see. Okay.

18 As we did in the case of counts 3 and 5, we will deal with these

19 counts 4 and 6 together. The Prosecution has charged the Accused with the

20 offence of plunder of public or private property, this being a violation

21 of the laws or customs of war punishable under Article 3(E) of the Statute

22 of the Tribunal. In count 4 it is alleged that the Accused is criminally

23 responsible as a commander pursuant to Article 7(3) of the Statute for all

24 incidents of plunder contained in the indictment. In counts 6, the

25 Prosecution has charged the accused with individual criminal

1 responsibility pursuant to Article 7(1) of the Statute for the plunder

2 that occurred during the attacks on Fakovici, and Kravica and Jezestica in

3 which the accused is alleged to have participated in person.

4 In paragraph 35 of the indictment, the Prosecution alleges that in

5 the course of the attacks that I mentioned earlier, and which took place

6 between the 10th of June 1992 and the 8th of January 1993, units under the

7 command and control of Naser Oric plundered Bosnian Serb property, namely

8 cattle, furniture, and television sets. According to the Prosecution,

9 these incidents of plunder include all the villages and hamlets that I

10 mentioned earlier.

11 Two Appeals Chamber decisions deal with the crime of plunder. In

12 Kordic, the Appeals Chamber concurred with the definition of that crime

13 given by the Trial Chamber. Of course, the Trial Chamber in that case

14 namely that the essence of the offence consists in all forms of unlawful

15 appropriation of property in armed conflict for which individual criminal

16 responsibility attaches under international criminal law including those

17 acts traditionally described as "pillage." In Blaskic, the Appeals

18 Chamber did not change the definition of plunder of property that had been

19 reached by the Trial Chamber, namely that being the unlawful extensive and

20 wanton appropriation of property belonging to a particular population

21 whether it be the property of private individuals or of state or

22 quasi-state public collectives.

23 The position of the Trial Chamber is that for individual criminal

24 responsibility to attach to plunder of public or private property as a

25 violation of the laws or customs of war, pursuant to Article 3 of our

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1 Statute, the Trial Chamber must be satisfied that the acquisition or

2 appropriation of the property was, first, unlawful; second serious enough

3 to reach the requirement of Article 1 of the Statute as a precondition to

4 the Tribunal asserting jurisdiction; and third, intentional.

5 The position of the Trial Chamber also is that the prohibition of

6 plunder extends both to organised seizure of property under taken within

7 the framework of a systematic economic exploitation and to acts of looting

8 committed by undisciplined soldiers and individuals for private gain.

9 The position of the Trial Chamber also is that as a violation of

10 the laws or customs of war, plunder does not require the appropriation to

11 be extensive or to have a large value. However, the question of value of

12 property intentionally and unlawfully appropriated becomes relevant with

13 regard to the jurisdictional requirement of Article 1 of the Statute of

14 this Tribunal: The Trial Chamber therefore holds that to constitute a

15 serious violation of international humanitarian law the appropriation must

16 be of sufficient value as to involve grave consequences for the victims.

17 It should, however, be noted that, in addition, plunder may constitute a

18 serious violation, not only when one victim suffers severe consequence as

19 a result of the unlawful appropriation, but also, for instance, when

20 property of little value is unlawfully appropriated from a large number of

21 people. It is the firm belief of this Tribunal, of this Trial Chamber

22 that the seriousness of the violation must be ascertained on a

23 case-by-case basis, taking into consideration the specific circumstances

24 of each case.

25 As regards the mens rea of the crime of plunder, the Trial Chamber

1 sees the mens rea as the intent to plunder, to appropriate intentionally

2 and unlawfully of such property, which consists both of the knowledge and

3 the will of the prescribed result and of the foreseeability of the

4 consequences of the conduct and acceptance of the results as its very

5 likely consequence.

6 The question of necessity has been raised by the Defence in

7 relation to this crime. This Trial Chamber holds that this Defence plea

8 of necessity for the purpose of this case is only of merit when applied to

9 the taking away of necessities which are needed in the context of

10 preventing imminent starvation. The Trial Chamber also finds that the

11 existence of a defence of necessity was an established principle of

12 international -- in customary international law at the time the crime of

13 plunder in counts 4 and 6 are alleged to have been committed. The Trial

14 Chamber also takes the position that for the defence of necessity to

15 succeed, in this case in relation to the crime of plunder, it needs to be

16 satisfied that there was a present or imminent threat of severe and

17 irreparable harm to life existence. Secondly the acts of plunder must

18 have been the only means to avoid the aforesaid harm. Thirdly, the acts

19 of plunder were not disproportionate. And lastly, the situation was not

20 voluntarily brought about by the perpetrator himself.

21 One last point I should like to make before I pass on to deal with

22 the facts and findings part, is that although in the course of the oral

23 submissions, the Prosecution suggested that the word furniture in

24 paragraph 35 of the indictment does not and should not mean just

25 furniture, but includes and should include all sorts of household goods

1 and appliances, the Trial Chamber cannot agree with this. Furniture is

2 furniture. That is those things which exist in a house or office that

3 equip it in the usual connotation of furniture for living. The indictment

4 itself doesn't consider a television set as being furniture. Consequently

5 we fail to see any validity in the argument now put forward by the

6 Prosecution that while a television set for the purpose of the indictment

7 is not furniture, a radio or a tape recorder or a video recorder or a

8 refrigerator or a pot or a pan should be considered as furniture. In this

9 case, counts 4 and 6 of the indictment limit the alleged plunder to just

10 three kinds of property, namely cattle, furniture, and television sets.

11 Consequently, all the evidence relating to the appropriation of anything,

12 such as weapons and ammunition, food clothing and household appliances,

13 and medicines, will be ignored. Having premised all this, I shall now

14 deal with the findings.

15 And I repeat that our findings are unanimous. The Trial Chamber

16 finds that there is abundant evidence which, if believed, could lead to

17 the conclusion beyond reasonable doubt that during several of the attacks

18 mentioned earlier, various heads of cattle were taken away, sometimes by

19 fighters, most of the time by apparent civilians. As regards the alleged

20 plunder of furniture and television sets, the only evidence that the Trial

21 Chamber has been able to find is the following: First, during or

22 following the attack on Ratkovici on the 27th of June 1992, Muslim

23 soldiers were seen taking away all the household appliances from one

24 house, which included a bed and a television set. The second instance

25 that we have managed to come across is an alleged statement by the Accused

1 himself on the 22nd of September 1992, during a meeting of the Srebrenica

2 Operations Staff in which he stated that one of the biggest problems was

3 how to protect property and that commanders like a certain Senahid, we've

4 taken it to mean presumably Senahid Tabakovic had set a bad example to

5 soldiers and civilians alike when he took away sofas during the attack on

6 Bjelovac.

7 The Trial Chamber makes it clear that in -- there is ample

8 evidence which, if believed, could lead beyond reasonable doubt to the

9 conclusion that there was massive plundering during these attacks, but as

10 stated, its jurisdiction in this case is limited to the alleged plunder of

11 cattle, furniture, and television sets, because it's only these objects

12 that are mentioned in para 35 of the indictment on which counts 4 and 6

13 are based.

14 After considerable thought on the law governing the crime of

15 plunder, the defence of necessity and the jurisdiction of this Tribunal as

16 spelled out in Article 5 -- Article 1 of the Statute, and of course the

17 evidence that has been adduced, we come to the following conclusions.

18 As regards the alleged plunder of cattle, although as I have

19 stated already, there is ample evidence which, if believed, could lead

20 beyond reasonable doubt that the conclusion that a few hundred heads of

21 cattle were appropriated during or following the attacks, any individual

22 criminal responsibility that could be attributed to the Accused under

23 Articles 7(1) and 7(3) of the Statute is offset by the real and present

24 necessity that there was at the time to acquire immediately food for the

25 survival of the population in Srebrenica which was under siege, completely

1 surrounded and isolated and starving. The plunder of food, of which too

2 there is abundant prima facie evidence in this case, has properly been

3 omitted by the Prosecution for the counts -- purposes of counts 4 and 6,

4 and the submission has been made that appropriating cattle is different

5 from appropriating food, because cattle cannot be consumed in situ.

6 Indeed, in theory, they are not the same, but the entire relevant evidence

7 in there case indicates that what motivated the mass of people that were

8 looting food and cattle was not what would usually characterise the crime

9 of plunder but the urgent need for survival at a point in time when

10 survival was critical, was vital, and this was the only possibility it

11 seems that they had of acquiring food, amongst other things that were

12 needed survival, such as clothing and medicines.

13 The Trial Chamber has thought a lot. Obviously cattle cannot be

14 quickly processed. The fact that cattle cannot be consumed on the site.

15 Still cattle can be quickly processed into food, where it can be

16 processed, and this could have and would have prevented or offset the

17 starvation that the population was risking at the time. Prosecution

18 seemed to have been more concerned with the fact that it could not be so

19 processed on site, where it was. The Trial Chamber cannot agree with you.

20 The Trial Chamber has thought a lot about coming to this conclusion and

21 feels convinced that the Prosecution has failed to adduce evidence which

22 could sustain a conviction for plunder of cattle and that all the

23 requirements for the success of the plea of necessity as it relates to the

24 alleged plunder of cattle are met, even though we want to make it clear

25 that we have at no time considered that the onus of proof had shifted over

1 the Defence. The onus of proof of plunder remained always on the

2 Prosecution even for the purposes of Rule 98 bis.

3 Under normal circumstances, the taking away of livestock or cattle

4 would undoubtedly amount to plunder but in the extraordinary circumstances

5 of this case, this appropriation of plunder together with food had become

6 indispensable for the survival of the population of Srebrenica. The

7 evidence brought forward by the Prosecution itself shows that not only was

8 Srebrenica under siege, but that in the course of this protracted siege,

9 the town was completely encircled and isolated and that the population

10 which kept increasing in geometric proportions because of the influx of

11 refugees was starving. In addition, there is always abundant evidence

12 that in spite of the repeated calls for help and for supplies by the

13 Srebrenica authorities, these never arrived precisely because the town was

14 surrounded and isolated and, therefore, could never arrive in Srebrenica.

15 It is finally pertinent to point out that there is no evidence to

16 show that the plunder of cattle was disproportionate given the

17 circumstances and, in addition, the evidence is such that there is nothing

18 to show that the situation I have described in Srebrenica was voluntarily

19 brought about by the persons concerned or by the perpetrators themselves.

20 As regards the alleged plunder of furniture and television sets,

21 the Trial Chamber has come to the conclusion that the evidence is so puny

22 that although there is evidence that a bed, a sofa, and a television set

23 may have been taken away, this does not rise to the level of seriousness

24 which I mentioned earlier and which is related to the jurisdictional

25 requirement of Article 1 of the Statute of the Tribunal. The Trial

1 Chamber might have decided differently had counts 4 and 6 not been limited

2 to furniture and television sets, apart from cattle. Because of these

3 conclusions and the decision that follows, there is no need for the Trial

4 Chamber to go into other matters, legal or factual, related to counts 4

5 and 6.

6 Our conclusion on counts 4 and 6. The Trial Chamber comes to the

7 conclusion that for the purpose of these two counts the Prosecution has

8 failed to adduce evidence capable of supporting a conviction for the crime

9 of plunder of public or private property, a violation of the laws or

10 customs of war punishable under Article 3(E) of the Statute of this

11 Tribunal and dulcis in fundo I now recapitulate all our conclusions in our

12 decision.

13 For the foregoing reasons, for the purpose of Rule 98 bis, the

14 Trial Chamber unanimously comes to the following conclusions and therefore

15 decides.

16 1: We enter a judgement of acquittal of the accused Naser Oric of

17 the charges brought against him in counts 4 and 6 of the indictment,

18 namely of the charge of plunder of public or private property, a violation

19 of the laws and customs of war punishable under Articles 3(E), Article

20 7(3) and Article 7(1) of the Statute of the Tribunal.

21 Our second decision orders the continuation of the case against

22 the accused under the -- on the other counts, namely counts 1, 2, 3 and 5.

23 However, it is being decided that the Accused need not address the alleged

24 murder of Bogdan Zivanovic as regards count 1. And the alleged cruel

25 treatment of Miloje Obradovic as regards count 2, for which there is no

1 evidence capable of supporting a conviction and for which he therefore

2 cannot be held responsible. Furthermore, the accused need not address the

3 alleged wanton destruction of the villages of Radijevici and Bozici, both

4 in Bratunac municipality. As regards count 3 and count 5, for which there

5 is no evidence capable of supporting a conviction, and for which

6 therefore, he cannot be held responsible.

7 For practical purposes, although this is not an order, the Trial

8 Chamber invites the Prosecution to present an amended version of the

9 indictment to reflect these decisions. However, in so doing, please

10 retain the number of -- the numbering of the counts. In other words, what

11 was count 1 will remain count 1, what was count 2, count 3, count 4 will

12 remain count 5 -- remain count 4, and count 5 will remain count 5, and

13 count 6 will remain count 6. And as regards counts 3, counts 4 and 6

14 obviously you omit to mention anything else.

15 This is our decision. I now suppose that the operators,

16 technicians, need a short break. There is only one very minor thing that

17 I need to address, and that is scheduling. I can do this in about three

18 minutes. Shall I proceed or shall we break for five minutes?

19 Seven minutes are plenty.

20 Now, as you know, we have a task entrusted by the Rules. We need

21 to schedule the beginning of the Defence case. I -- we have already had

22 informally a discussion in my Chamber on this between the parties. More

23 or less what I'm going to say is in agreement with what has been discussed

24 with the parties and taking into account the exigencies of both --

25 particularly Defence counsel, the Defence counsel. Our first decision is

1 the following: That no later than Friday, the 17th of June, the Defence

2 is required to file the name or pseudonyms of each witness it intends to

3 call. As well as a summary of the facts on which each witness called

4 before the summer recess, that is, the recess starts on the 23rd of July.

5 In other words, we require a summary of the facts on which each witness

6 you will call before the 23rd of July and will testify. And then the

7 points in the indictment as to which each witness called before the summer

8 recess will testify. And the total number of witnesses and number of

9 witnesses called -- to be called before the summer recess who will testify

10 on each count.

11 Similarly, as well, by the 17th of June, we need -- we require

12 from you an indication of whether the witness or witnesses will testify in

13 person or pursuant to Rule 92 bis, whether there will be a use of a

14 transcript of testimony from other proceedings in this Tribunal. We also

15 require an indication of the estimated length of time required for each

16 witness and the total time estimated for the presentation of the Defence

17 case. This is very important because we need to plan ahead.

18 Finally, you need to file by the 17th June deadline a list of

19 exhibits you intends to offer in this case, stating, where possible,

20 whether the Prosecution has any objection as to their authenticity. The

21 Defence is also supposed to or expected to serve copies on the Prosecutor

22 of these exhibits but only with regard to the exhibits it intends to use

23 during the testimonies of witnesses you intend to call before the summer

24 recess.

25 Then there will be a short break which will be utilised by you to

1 finish this exercise, and we are giving you up to the 28th of June 2005 to

2 file a summary of the facts which each remaining witness will testify

3 about. The points of the indictment as to which each remaining witness

4 will testify, the number of remaining witnesses that will testify on each

5 count, and now as you know there are two less, and as you also are

6 required then by 28th of June 2005 to serve on the Prosecution copies of

7 the exhibits listed on 17th June, with the copies you intend to use during

8 the testimonies of the remaining witnesses.

9 Then we have already scheduled for you a meeting, a 65 ter

10 meeting, on the 30th of June. This will be presided over by our Senior

11 Legal Officer and this will be in terms of and pursuant to 65 ter, and

12 this will be followed the day after, on the 1st of June, by -- 1st of

13 July, by a full-blown Pre-Defence Conference in open session in this or in

14 any other courtroom. This will be called -- convened pursuant to Rule 73

15 ter. Then you are expected to bring forward or, let me put it in other

16 terms, to start your case on July 4th, which is a Monday.

17 All right?

18 I conclude by making a short statement. This has been the first

19 experiment with the Rule 98 bis as it has been amended by the Judges in

20 Plenary on the 18th of December of 2004.

21 I think I can safely say that it has been a successful experiment.

22 We have managed to start and conclude the whole exercise in less than a

23 week, when, under previous -- under the previous regime it would have

24 taken roughly between a month and a half and two months to conclude. It

25 has spared you the burden of filing long and detailed written submissions.

1 It has spared us having to prepare long, detailed judgements with

2 annotations and all that. We have saved the Tribunal a lot of time and a

3 lot of resources, which, as you can imagine, if multiplied by the existing

4 number of cases and those which we hope will come in the future, means we

5 have saved the Tribunal years and we have also served -- saved the

6 Tribunal a lot of resources and money.

7 I wish to thank you both because you have been a major

8 contribution in enabling us to prove that the newly amended Rule 98 bis

9 could work successfully. Yes, Mr. Jones?

10 MR. JONES: Yes, thank you, Your Honour. I wonder if I might just

11 make a point very briefly. In fact, thank you, firstly, to the Chamber

12 for your judgement, even if we respectfully disagree from some of the

13 findings. We do naturally have to consider the possibility of requesting

14 certification for appeal, but what I did want to say is that in light of

15 the schedule outlined by Your Honour, if it turns out that we decide not

16 to pursue that course, we of course reserve our right to take any of the

17 points arising from the 98 bis judgements at the end of the trial. I

18 wouldn't want it to thought that we would concede making any concessions

19 that we don't.

20 JUDGE AGIUS: Yes, yes, taken for granted. The jurisprudence of

21 the Tribunal agrees precisely with what -- and it has never been thought

22 to be other wise. In other words, not appealing does not mean

23 acquiescence.

24 MR. JONES: No, in some cases it does and in this case not.

25 JUDGE AGIUS: It's not in our case. It's not.

1 Yes. We stand adjourned. Thank you.

2 --- Whereupon the hearing adjourned at 11.05 a.m.

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