1 Thursday, 6 April 2006

2 [Defence closing statement]

3 [Open session]

4 --- Upon commencing at 9.03 a.m.

5 [The accused entered court]

6 JUDGE AGIUS: Madam Registrar, good morning to you. Could you

7 call the case, please.

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

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

10 JUDGE AGIUS: Thank you, Madam.

11 Mr. Oric, can you follow the proceedings in your own language?

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

13 and gentlemen. I can follow the proceedings in my mother tongue.

14 JUDGE AGIUS: I thank you, Mr. Oric. You may sit down, and good

15 morning to you.

16 Appearances for the Prosecution.

17 MS. SELLERS: Good morning, Your Honours. I'm Patricia Sellers

18 from the Office of the Prosecutor. With me today is co-counsel,

19 Mr. Gramsci di Fazio, Ms. Joanne Richardson, and our case manager Ms.

20 Donnica Henry-Frijlink.

21 And good morning to the Defence.

22 JUDGE AGIUS: I thank you Ms. Sellers, and good morning to you and

23 your team.

24 Appearances for Naser Oric?

25 MS. VIDOVIC: [Interpretation] Good morning Your Honours. Good

1 morning to my learned friends from the OTP. My name is Vasvija Vidovic

2 and together with Mr. John Jones I appear for Naser Oric. With us are our

3 legal assistants, Ms. Adisa Mehic and Ms. Jasmina Cosic, and our CaseMap

4 manager, Mr. Geoff Roberts.

5 JUDGE AGIUS: I thank you, Ms. Vidovic and good morning to you and

6 your team.

7 So any preliminaries?

8 Okay. So I give the floor again to Madam Vidovic and afterwards

9 to Mr. Jones. We'll have a break at 10.30.

10 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.

11 Yesterday I concluded with a part in which I dealt with

12 communications. And this is where I will continue.

13 In the OTP's reply to our final brief in footnote 253 of paragraph

14 128, they invoked several documents claiming that Oric forwarded the

15 information mentioned in those documents to his superiors. Your Honours,

16 please take a look at those documents. Those are no standardised military

17 reports. Those are reports on the situation in the field as well as

18 requests for assistance. The condition of communications in Srebrenica

19 was best described by their own witness, Mr. Ibrahim Becirovic in his

20 testimony of the 26th of April 2005, on pages 7708 and 7709 of the

21 transcript.

22 I wanted to quote a small portion of his testimony. His

23 answer: "In my testimony so far, I've been trying to explain that to my

24 knowledge, there were no means of communication used by something I

25 wouldn't even call the staff of the armed forces. I spoke about these

1 poorly organised groups in the area of Srebrenica."

2 Question: "All right. I will ask you something else, then. This

3 document confirms, does it not, that those people went in action with no

4 means of communication whatsoever?

5 Answer: You are right."

6 Apart from this statement by one of the OTP's witnesses, from

7 which one can clearly see that the staff possessed no means of

8 communication, still the OTP claimed that there was such a thing as

9 communications department headed by Hamed Alic. Irrespective of Mr.

10 Becirovic who was their witness on the 20th of April 2005 on page 744 of

11 the transcript, said that the information and communications service

12 headed by Hamed Alic formed part of the War Presidency and in spite of him

13 saying that on the 21st of April 2005 on page 7523 of the transcript, he

14 said that the messages sent to Sarajevo and Tuzla were actually sent on

15 behalf of the War Presidency of Srebrenica. He clearly explained that he

16 usually himself received such information speaking with the refugees and

17 the wounded. He said that his information as regards the situation in the

18 field was not received from the fighters.

19 Another Prosecution [as interpreted] witness, Lieutenant Colonel

20 Rex Dudley in his testimony on the 14th of December 2005, on page 15024 of

21 the transcript explained --

22 Your Honours, I said Defence witness, Lieutenant Colonel Rex

23 Dudley instead of Prosecution witness.

24 In his testimony on the 14th of December.

25 JUDGE AGIUS: [Previous translation continues] ... will try to

1 adopt him.

2 MS. VIDOVIC: [Interpretation] He explained, "As I said earlier,

3 C3I, that is command/control/communications and intelligence, altogether

4 form vital parts of a good, effective command and control for any

5 commander in the field. If you are missing one or several of these

6 components, you won't be able to effectively control your command."

7 Could we see slide 30, please, now?

8 Slide 30, please.

9 JUDGE AGIUS: It is on screen. Do you have a problem with your

10 monitor? Do you press the right button? The one on the left in the

11 middle?

12 MS. VIDOVIC: [Interpretation] It is all right now. Thank you,

13 Your Honour.

14 In another part of his testimony on the 13th of December 2005, on

15 page 14905, Lieutenant Colonel Rex Dudley stated the following:

16 Question: "And I want to take it -- well, first of all based on

17 your observations, did the conditions exist for a commander to be

18 effective on the ground?"

19 Answer: "In the situation in Srebrenica, I don't think any

20 commander who walked into that environment would be very successful."

21 Question: "And do you make that observation in terms as well of

22 the training, equipment, and conditions necessary to organise military

23 operations into planned, sustained operations?"

24 Answer: "Yes. Not only was the equipment missing, but a key

25 component, communications, was also missing from that enclave."

1 Question: "Now, how important are good communications to command

2 and control?"

3 Answer: "Very. Particularly for more complex combat operations.

4 I would like to make a point here that the terrain of Srebrenica was very

5 broken up, very hilly, very compartmentalised, and therefore, being able

6 to communicate with subordinate leaders or commanders on the ground, you

7 would have to have good, solid communications between a commander,

8 subordinate commanders, to make sure that the forces stay coordinated in a

9 well-involved complex plan that people knew so that they would deal with

10 various contingencies they would run into in their area of operation."

11 Your Honours, effective command, therefore, first and foremost,

12 demands good communication between the commander and his subordinates,

13 between the commander and his superiors, as well as in between units and

14 formations. It doesn't suffice, as the Prosecutor stated, that there was

15 this possibility of communication. That possibility in the conditions of

16 Srebrenica and its besieged villages was at its most primitive level, that

17 pertained to the most basic contacts as regards danger and assistance

18 requests. A military commander should have standing communication with

19 his subordinates, and his subordinates in turn should have good

20 communication with, say, their subordinates, company commanders, and they

21 in turn with their subordinate platoon commanders and so on and so forth.

22 This is how one sets up the layers of an organisation. A commander at a

23 lower level should communicate with his subordinates and control them and

24 then report to his superior as to the position and activities, the

25 situation with ammunition and reserves, as well as enemy activities. A

1 commander, in order to have effective control, needs to have a clear,

2 precise, and realistic picture of everything taking place within his area

3 of responsibility when it comes to both his and enemy forces.

4 What is important to stress is that for him to have that image in

5 his head, he needs to be able to do that without visiting every single

6 subordinate unit on the ground and possibly without direct communication

7 via radio. A commander, in order to achieve effective control, needs to

8 have the preconditions to prepare and issue clear and concise orders in

9 standardised format, that his trained subordinates could understand and

10 carry out. On the other land, lower-ranking commanders have to submit

11 regular reports on the situation, also in a standardised format so that

12 their superior commander would at any given time have full information.

13 In order to command, a commander has to have trained staff to

14 prepare and analyse reports and to coordinate information. In order to

15 command, he has to have lower-ranking officers, that is mid-level

16 officers, they have to have rank, they have to have radio connection and

17 monitor them. A commander would have to have such staff to be able to be

18 sure that all the information he receives is forwarded to appropriate

19 instances and organised. Therefore it is of crucial importance to use a

20 standardised system of reporting. This concerns all military activity,

21 requests for food, water, urgent requests to evacuate victims, as well as

22 requests for various logistics issues, and all other military issues,

23 since we are talking about a military commander. It is of crucial

24 importance to have a timely and efficient transmission of information as

25 regards all issues important for military activities. A timely and

1 efficient transmission yet again demands training of staff as regards

2 reporting. Without trained staff the commander can only scream and hope

3 for the best.

4 A communication network does not serve only to transmit orders but

5 also to secure the flow of information. Without such information,

6 commanding is simply impossible.

7 In brief, to carry out effective control, one needs to have the

8 command infrastructure, including communications, information, trained

9 staff, standardised reporting, and an intelligence service. There are

10 neither adequate means of communication, nor a standard infrastructure to

11 prepare and issue military orders and to forward information in the form

12 of various reports, no control is possible, let alone an effective one.

13 Your Honours, was there any command infrastructure in Srebrenica? No,

14 there wasn't. Can we call this so-called staff of the armed forces an

15 organised military command? No. Because they lacked the basic

16 preconditions: No logistics, no trained staff, no means of communication,

17 no preconditions for standardised reporting, and no means to timely and

18 efficiently convey information. There were no trained subordinates and it

19 did not have troops who underwent the -- even basic treatment -- training.

20 The soldiers in Srebrenica were young and a lot of them were not even

21 adults and they did not undergo the basic JNA training. Even in the

22 so-called staff -- Your Honours, again there is an error. I'm getting

23 English.

24 THE INTERPRETER: The interpreter apologises. This has now been

25 corrected.

1 MS. VIDOVIC: [Interpretation] Not even in the so-called staff did

2 Oric exercise command. In the staff itself, Oric was not in command.

3 According to the war diary, P84, extensively used by the Prosecutor, for

4 example, on pages in the original 02115054, 02115066, 02115079, 02115089,

5 and many others, it says that they sat down and discussed among themselves

6 and voted, they being the local leaders. Mirsad, Ahmo, Zulfo, Nedzad.

7 They talked about their men. They said, "My men need this. My men have

8 done that." Very often, they did this together with the members of the

9 War Presidency. They voted. Oric's vote was not worth more than anybody

10 else's. Is this command, Your Honours? No. Are these the powers of a

11 commander? No. This is decision-making, equivalent to decision-making in

12 a local commune. When discussing issues of interest for the local areas.

13 People sit down and they vote according to the principle of

14 representation. Once again, this is not command. In order to prove that

15 Oric was the Supreme Commander of the area, they showed video P427 where

16 Naser is seen talking with UN soldiers. The suggestion was that this was

17 a meeting with Philippe Morillon but we didn't see him on the video.

18 However that may be, Your Honours, I'm convinced that you have observed

19 that precisely in that part of the footage that was shown, Oric said, "I

20 cannot issue orders to the people. I will not raise weapons against my

21 own people." He said this at 00:49:23. And now, please let us see slide

22 31.

23 Your Honours, take a brief look at part of this same video, P427,

24 the time is 00:45:50 to 00:46:52. What the Prosecutor did not tell you is

25 that in that same place, at that same time, the same UN soldiers were also

1 talking to the commander of Cerska, Semso Salihovic. The transcript of

2 this part of the footage is our Exhibit D826 and I quote from part of this

3 conversation, Semso Salihovic: "Does the world know that these people are

4 suffocating? Does the world know -- listen, the world knows what it's

5 doing in order to suffocate Islam in this area. They are sending ut

6 Philippe Morillon, a real Chetnik. Is there any justice? But the world

7 has turned towards us in order to destroy us, you see. They put Philippe

8 Morillon at the head, who is doing the job assigned to him by the world.

9 How powerful that world is. He knows that these people have been fighting

10 for a year and what has the people been fighting with? 30.000 people,

11 with little rifles. Do you know how many men I lost to get this rifle?

12 No more or less than ten fighters for this rifle." These are the words

13 by -- spoken by him on this video.

14 [Videotape played]

15 MR. JONES: Your Honours, you have also seen --

16 JUDGE AGIUS: One moment.

17 JUDGE ESER: Just a question. With whom did Semso Salihovic talk

18 here? Who was the man on the tank? With whom did he talk?

19 JUDGE AGIUS: In other words, the UN military --

20 MS. VIDOVIC: [Interpretation] Your Honour, he was talking to the

21 same people to whom Naser Oric was speaking on the footage shown

22 yesterday. This part of the footage is only two minutes before the part

23 shown by the Prosecutor yesterday. So it's part of the same video, Oric

24 and Semso Salihovic are both talking to a group of UN representatives, not

25 including Morillon. Morillon was not seen on the part of the footage

1 played by the Prosecutor either.

2 You have also seen, from another video that we played during the

3 testimony of Mr. Ejub Guster, that Mr. Morillon also spoke to others, for

4 example Mr. Talovic. Therefore, the part of the video which they showed,

5 showing Oric talking to UN soldiers, does not prove what they want it to

6 prove; that is, that Oric showed that he had the authority of Supreme

7 Commander because he spoke to the UN. As you have been able to see all

8 local leaders spoke to the UN, and you have been able to see the commander

9 of Cerska, Semso Salihovic, doing the same.

10 What kind of control, de facto, did Oric have over the groups in

11 the eastern enclaves? This is illustrated by footage of a session of the

12 Presidency of Bosnia-Herzegovina held on the 11th of August 1995, and this

13 is D300. Your Honours, you have here part of document D300, where

14 General Rasim Delic, the Commander of the Main Staff of the army of

15 Bosnia-Herzegovina in 1995, August 1995, after the fall of Srebrenica, was

16 certainly in a position to have information about the Muslim forces in

17 Srebrenica during the war. And this is what he said. In the

18 discussion -- the part of the discussion that has to do with Oric's role.

19 I quote, "However, my information, now that he has come here and that the

20 army has come, is that he did not have much influence except on his

21 brigade. He was not the kind of commander who had command over the

22 situation in the division. He had command over his own brigade and

23 another one. He had no influence over the others.

24 "So the level of military organisation in that area was low. We

25 tried to bring as much influence as bear as we could in writing by orders

1 and summoning all commanders. Unfortunately it did not work."

2 JUDGE AGIUS: Yes, Ms. Vidovic, the second line on the script that

3 we have here does not correspond with what the interpreter said when she

4 was translating, interpreting, what were you saying in your own language.

5 Here it says, "He did not have much influence on his brigade as

6 commander." What the interpreter told us is that he did not have much

7 influence except on his brigade.

8 The two are quite different. So perhaps you can repeat again in

9 your own language what is at your disposal and then the interpreters will

10 have a second opportunity to interpret to us so that at least we have a

11 clear indication of which one of the two versions is the correct one.

12 It's the first two lines that you have to read.

13 MS. VIDOVIC: [Interpretation] Your Honours, I now have the

14 original transcript in Bosnian, of that session and it says, "However, my

15 information now, now that he has come here, and now that the army has come

16 here, is he did not have some command influence on his brigade."

17 I agree that it's a little confusing.

18 JUDGE AGIUS: It is exactly the -- not exactly the opposite but

19 it's completely different from what we have written down in D300.

20 JUDGE ESER: Just to clarify, what brigade is he talking about and

21 at -- what time frame did Delic have in mind?

22 MS. VIDOVIC: [Interpretation] Your Honours, Delic is referring to

23 the situation after the fall of Srebrenica in 1995, and he says that the

24 level of military organisation in that area was low, even in 1995. He

25 refers to the brigade Oric originated from. It's not very clear from what

1 he said, but Your Honours know what evidence Oric -- what brigade Oric

2 originated from. I will clarify this.

3 Your Honours, we believe that the translation in D300 corresponds

4 to the original but to clarify I will say the following: Rasim Delic said

5 this referring to the organisation of the Muslim forces in 1995 in that

6 area, which was very low.

7 Your Honours, imagine, then, what this organisation looked like in

8 1992 and 1993. This organisation must have been even poorer, at an even

9 lower level, and many witnesses have spoken about this, both Prosecution

10 and Defence witnesses, and now, Your Honours, I will refer to another

11 aspect.

12 Naser Oric, as a commander, in 1992, was 25 years old. He had

13 completed a police course, had done his regular military service in the

14 JNA, and he had no training in command. Your Honours, even the most

15 gifted, charismatic, and brilliant military leader must be trained to be a

16 commander. This training includes various skills that a commander must

17 have in order to, to say the very least, understand what his subordinates

18 are able to do and what they are not able to do. He had to have gone

19 through such training to know what he can realistically expect from his

20 subordinates in the given circumstances. He had to have gone through

21 training in order to know how to compose and issue an order, how to

22 understand intelligence information, how to lead his key staff properly.

23 The sensitivity required by command is not easily acquired. Military

24 training in various schools and military academies is aimed at training

25 people to be good tacticians and good operative commanders.

1 What I wish to say, Your Honours, is that you cannot expect

2 effective military command to be established by chance, without the proper

3 training or preparation. A commander, therefore, needs careful training

4 and education. Naser Oric did not have this. For someone to command, he

5 needs to have accumulated military experience. Naser Oric did not have

6 it. Neither did his subordinates. He did not go through any kind of

7 training in international humanitarian law, never, neither he nor his

8 subordinates. The legislation in this area was not available to him so

9 that he could train himself or train his subordinates. Never was this

10 delivered to Srebrenica.

11 Your Honours, when issuing your judgement, you will certainly bear

12 these facts in mind.

13 Your Honours, you will now be addressed by my colleague. Thank

14 you.

15 JUDGE AGIUS: I thank you, Madam Vidovic.

16 Mr. Jones?

17 MR. JONES: Yes, thank you, Your Honour. May it please Your

18 Honours I'll be dealing with questions of documentary evidence, the law,

19 the detention charges and finally sentencing.

20 Now, Your Honours, the Prosecution says that its case against

21 Naser Oric is based primarily on circumstantial evidence, which it

22 picturesquely compares to chain mail armour and it says this in its final

23 brief in paragraph 8, "The circumstantial evidence presented in this case

24 is not like a single chain whereby when one link fails, the entire chain

25 breaks. Rather it is like chain mail armour, the links are intertwined in

1 such a way that when one link fails, the armour's strength is not

2 diminished."

3 Now, this is an interesting metaphor. First, one wonders why the

4 Prosecution needs to use a metaphor to explain what happens when links in

5 the chain of circumstantial evidence fail. It's a tacit admission, is it

6 not, that many links, many items of evidence, do not in fact support the

7 Prosecution's case. Just how many links have failed will be for Your

8 Honours to judge. We've made our position very clear in our closing

9 brief, in our response to the Prosecution brief, and in my colleague's

10 closing speech. The case has failed completely.

11 The chain mail metaphor is based on a notion of mutually

12 corroborating evidence, in particular exhibits. On Monday Mr. Di Fazio

13 gave some examples to support his claim of mutual corroboration. Recall,

14 however, that what stands together must also fall together. Mutual

15 support also means mutual collapse. Mr. Di Fazio referred to P80 and P570

16 as being mutually supporting, since they both give the same exact number

17 of recruits the TO Osmace, A3, namely 121 and the same applies to P571

18 allegedly the members of TO Biljeg, 136 members. But remember what

19 witnesses said about P80. Hakija Meholjic, a Prosecution witness,

20 condemned P80 in the strongest possible terms. He said, "This document

21 has nothing whatsoever to do with the reality of the situation at the

22 time." Is there any more forceful way of condemning a document as untrue?

23 I don't believe so.

24 So what does that say about P80 mutually supporting P570 and P571?

25 Well, it follows if P80 has nothing to do with the reality on the ground,

1 then P570 and P571 are equally suspect. If they stand together then they

2 fall together too.

3 So with the links in the Prosecution's chain mail armour, if one

4 fails the others do not necessarily hold firm. They may unravel for the

5 same reason. Your Honours, as a child I saw many specimens of chain mail

6 armour in the Tower of London and other places. It's usually displayed in

7 some disembodied form, hanging from a wall or draped over a dummy. Much

8 as in this case the chain mail doesn't rest on anything substantial,

9 anything living, any real. It's draped over a shell, an empty form. Just

10 as the Prosecution's case is draped over the empty shelf its own

11 theorising.

12 Witnesses who could confirm the Prosecution's theory of a unified

13 command in Srebrenica, among other things, are what are conspicuously

14 missing from this case. Your Honours may have heard of the Sherlock

15 Holmes story, the adventure of silver blades, in which this exchange took

16 place, Inspector Gregory says, "Is there any other points to which you it

17 would wish to draw my attention?"

18 Holmes: "To the curious incidents of the dog in the night-time."

19 Gregory: "The dog did nothing in the night-time."

20 Holmes: "That was the curious incident. The curious incident is

21 that the guard dog did not bark, as one would have expected, which

22 signalled that the dog knew the intruder."

23 If what the Prosecution said about the situation in Srebrenica

24 were true, that the accused was at the apex of a unified command, that the

25 documents on which the Prosecution seeks to rely may be relied upon, then

1 there would have been a barking dog, a witness from Srebrenica, who would

2 have appeared before you and said, "Yes, that was the situation. Yes.

3 These documents do reflect the reality on the ground." They never did,

4 the dog never barked, and that's what is curious about this case.

5 In a criminal trial, Your Honour, there are cumulative elements,

6 many cumulative elements, that have to be proved beyond a reasonable

7 doubt. Each and every one has to be proved and if one fails, the whole

8 case fails. And a bold Prosecutor will admit as much that their case

9 depends on those links holding firm. But not our Prosecutor. They seek

10 refuge in a metaphor which is only appropriate inasmuch as it evokes

11 images of a disintegrating and disembodied fabric.

12 Your Honour, there is a better metaphor for the Prosecution's case

13 and it's circumstantial evidence, it's a patch work immediate from many

14 different clots. You can think of each item of evidence as a different

15 colour clot. And with a snip here and a snip there, selecting different

16 parts of different materials, different parts of different documents, the

17 Prosecution might be able to put together an untidy mosaic. You would

18 have to ignore the pile of discarded fabric to fool yourself into thinking

19 that this mosaic was the complete picture. You would have to ignore that

20 huge pile of discarded material to conclude that the Prosecution has

21 proved any of the counts beyond a reasonable doubt.

22 Now, P50 provides a good example of this, but there are hundreds

23 of such examples. And we can call P50 up on to the monitor.

24 The Prosecution relies on P50 to show that a victim named in the

25 indictment, Milisav Milovanovic died. But they dispute the cause of death

1 as stated in that document, namely pneumonia. So you would have to use

2 just part of this document and ignore the rest. You would have to take a

3 pair of scissors, figuratively speaking, and cut out the bit that the

4 Prosecution needs for its case and then throw the rest in the bin.

5 Or P84, the war diary or P561 the diary found in a meadow. The

6 Prosecution would invite you to look at anything which seems to link the

7 military police with the staff but to ignore anything and everything that

8 shows that the military police came under the command of the War

9 Presidency. The scissors of injustice would have to again be applied to

10 cut away anything exculpatory. When it comes to the detention charges,

11 the Prosecution would ignore, as they did in their speech on Tuesday, what

12 Mr. Zikic said referring to Beli, never referring to Kemo in the SUP,

13 referring to people being beaten outside the SUP, not inside the SUP on

14 the day of the exchange, and not mentioning any incident when Sarac was

15 allegedly slapped by the accused. But then they would then turn around

16 and ask to you rely on Zikic that the detainees had visible signs of

17 injury, and ignore what Radic said on the subject, namely that there were

18 no visible signs of injury on them.

19 And they would ask to you simply gloss over all their problems

20 with the alleged identification of the accused in the SUP and the

21 building.

22 And they would ask you to forget that Ejub Guster ever testified

23 about a black Mercedes that remained in the same place on the day of

24 C-007's exchange and about Morillon and Oric not being present at that

25 exchange.

1 Well, Your Honours, I invite the Trial Chamber to infer that

2 whenever the Prosecution has ignored or glossed over important exculpatory

3 evidence, that it's because they have no answer to that evidence. And you

4 will draw the appropriate conclusions from that.

5 In order to find the accused guilty of any of the charges in the

6 indictment you would also have to take the scissors of injustice to cut up

7 the transcripts of the evidence of most of the Prosecution witnesses.

8 Dr. Mujkanovic, Hakija Meholjic, Ibro Becirovic, Colonel Tucker,

9 Judge Omerovic, Dr. Gow, as well as large parts of the testimony of Brkic,

10 Hogic, and Delic. You'd have to practically shred those transcripts and

11 place all that exculpatory evidence in a dustbin too.

12 Mr. Di Fazio tried to pretend on Tuesday that only

13 Dr. Mujkanovic's evidence runs directly counter to their case. Not so.

14 It's true of all of the Prosecution witnesses that I've just mentioned.

15 Now, on the subject of asking the Trial Chamber to disbelieve its

16 own witness, I can probably do no better than to quote what Your Honour

17 said at the start of the Brdjanin trial. It was the hearing of 24 January

18 2002, page 805, and Your Honour said this: "Well, the system that this

19 Trial Chamber opts for is that if you bring forward a witness you're

20 expecting not to attack the credibility of that witness." In other words,

21 we are talking of your witness and therefore you're expected to bring

22 forward witnesses that you have consulted with beforehand that more or

23 less you know what kind of evidence they are going to produce. Now if

24 that witness at any point in time in the course of the testimony turns

25 against you, and disrupts what you had planned to get from that particular

1 witness, him or her being your witness, then obviously you're going to be

2 faced with a difficult situation. And it may well be you would prefer to

3 bring forward previous statements made by that witness that are

4 contradictory to what that witness would be stating during these

5 proceedings. This is what I'm referring to. You will not be allowed to

6 contradict the witness until you first obtain permission of the Trial

7 Chamber to do so. In other words," I'm still quoting Your Honour." In

8 other words, once you have taken the position to produce that witness as

9 your witness in support of that case the practice will be that you do not

10 try to discredit that witness."

11 Then on page 806, "So the rule is that once you have close tonne

12 bring forward a witness, it's because you believe in the credibility of

13 that witness." "So the rule is that once you've chosen to bring forward a

14 witness it's because you believe in the credibility of that witness." Now

15 what Your Honour said was also stated in Limaj in an oral decision of 1st

16 of February 2005 "the general position is that a party calling a witness

17 may not discredit that witness." So indeed there is ample authority at

18 this Tribunal for that proposition.

19 The Prosecution has not applied to treat any of its witnesses as

20 hostile. Not Mujkanovic, not Mehojlic, not Ibro Becirevic, not one of

21 them, and that means that to this day they believe in the credibility of

22 all those witnesses. Now, they cannot now invite Your Honours to find

23 those witnesses not credible. They are stuck with that evidence. And

24 they know that.

25 So they don't explicitly ask you to disbelieve those witnesses.

1 No, they do it covertly, implicitly. The Prosecution tries to suggest to

2 you with a nod and a wink, and if you're in any doubt that's what Mr. Di

3 Fazio was doing on Tuesday, with a nod and a wink saying, "Disbelieve

4 Mujkanovic, even though he was our witness," and it's what he did when he

5 put to Colonel Tucker that Dr. Mujkanovic was just a loiterer outside the

6 hospital and not what he really was, a hero who had done a great number of

7 incredibly important operations in the hospital. No, with a hint, he said

8 you should not believe Dr. Mujkanovic, their own witness whom they proofed

9 and then presented to you as a witness of truth.

10 Well, Your Honours, I have to say what an irresponsible attitude

11 that is to try and shift the burden on to you. It's their case which they

12 have to prove beyond a reasonable doubt. And Your Honours will be

13 perfectly entitled to say for any point in contention, this was evidence

14 brought by you, the Prosecution, which you did not seek to challenge when

15 it was given by your witness, and that therefore you have failed to

16 discharge your burden of proof on that matter.

17 Equally it apply us for us. We are entitled to rely on the fact

18 that evidence has been given by a Prosecution witness, that they haven't

19 sought to challenge that witness, and we are perfectly entitled to

20 consider, "Well, we don't need to call evidence on that point because

21 their own witness has said it and not been challenged."

22 Your Honours, it's as if I were to provide a recommendation to you

23 for, let's say a cleaning person, and after they started work I were then

24 to inform you that you should be careful because they might start

25 pocketing your finer silver. What would you think of me if I did that?

1 But that's what the Prosecution is doing with regard to Dr. Mujkanovic. I

2 would ask what sort of a world is the Prosecution living in if they think

3 that's a proper approach to a criminal trial? How does the Prosecution

4 dare to hint or to suggest to you that maybe you should disbelieve some of

5 their witnesses which it called to give evidence before you, under oath,

6 and whom they never sought to impeach?

7 If the Prosecution at any time was surprised by the evidence of

8 any of their witnesses, surprised in light of their proofing, their

9 preparation of their witness, such as to cause them to believe that the

10 witnesses might not be telling the truth to your Trial Chamber, on oath,

11 then they had a duty, an absolute professional duty, at that moment to

12 apply to impeach that witness and they never did.

13 So that means the Prosecution believe in and vouch for the

14 credibility of every single witness they called.

15 Unlike the Prosecution, we stand by our witnesses, all of them.

16 We wouldn't dream of surreptitiously asking Your Honours to disbelieve

17 what any of our witnesses told you under oath. We stand by them, and by

18 the testimony that they gave. And any other approach would completely

19 undermine the whole notion of a criminal trial.

20 You may get a further sense of the world inhabited by our

21 prosecutors when you hear their repeated references to an alleged

22 conspiracy theory. Aware that their documents have not been confirmed by

23 witnesses and following the maxim that the best defence is offence, the

24 Prosecution seeks to ridicule any challenge to the authenticity or even

25 the validity of its documents as being the product of a conspiracy theory.

1 They even go so far as to say that the positing of conspiracy theory is a

2 central plank in the Defence case.

3 As Your Honours are well aware we never alleged some huge

4 conspiracy. That cliched phrase is of the Prosecution's own invention.

5 Yes, we say that some signatures have been forged. Other documents might

6 have been put together years after events so that, as witnesses like

7 Meholjic confirmed they don't reflect the situation on the ground at the

8 time and that others contain palpably false information. It's not for us

9 to provide some grand, unified theory of why Prosecution exhibits cannot

10 be relied upon. They have the burden of proving that their documents may

11 be relied upon. And as Your Honour stated in your guidelines on evidence

12 issued at the start of this case on the 21st of October 2004, "the Trial

13 Chamber will follow the principal that the Prosecution must prove

14 relevance, probative value, and reliability of such evidence beyond a

15 reasonable doubt."

16 Now, the Prosecution has a heavy burden to discharge in order to

17 satisfy Your Honour that is its exhibits are relevant, probative and

18 reliable. The Prosecution calls in aid the notion of a conspiracy theory

19 in order to try to shrug off that burden of proof. Or even to try to put

20 the burden of proof on to us. But we don't need to advance any theory as

21 to why the Prosecution's exhibits are unreliable. We simply point out the

22 facts.

23 Take, for example, P19, an exhibit stating that Pejic is dead when

24 he's alive. I don't know why the document says that. I do know that it's

25 unreliable for that reason. And when we consider that certain documents

1 are not reliable, we are not alone in this. Your Honours have excluded

2 two exhibits, P65 and P68 based on our objections to authenticity, and the

3 Prosecution too evidently finds something fishy about certain of its own

4 exhibits. Prosecution Exhibit P50 which we looked at a moment ago, in

5 which the Prosecution disputes the cause of death as stated in that

6 document. Now, I presume the Prosecution are not challenging the medical

7 expertise of Dr. Hasanovic. They say that Milisav Milovanovic was beaten

8 to death. Whereas that document states that there were no signs of

9 injury. No, the Prosecution is saying there is something not right about

10 P50, something fraudulent, maybe even some sort of a cover-up. Do we

11 label that as a conspiracy theory in order to dismiss it? No. We say

12 that's a legitimate submission - legitimate, I say, not necessarily

13 valid - but that a certain document has suspects features and it's to that

14 extent unreliable.

15 Dr. Kerzan, the Trial Chamber's own expert didn't see anything

16 extraordinary in the suggestion that a Prosecution exhibit might bear a

17 forged signature of the accused. On the contrary, he testified that there

18 was a "quite strong possibility" that the signature on P14 was "a

19 falsified signature." Did Dr. Kerzan suddenly taken leave of his senses

20 and become infected by the Defence's wild conspiracy theory? No. He was

21 recognising what is in fact a pretty mundane occurrence, namely the

22 possibility that someone has copied someone else's signature. It happens

23 every day.

24 On the subject of Dr. Kerzan, yes, I suggested that his approach

25 might be coloured by subjectivity as a policeman, as a police expert,

1 someone who works in a police laboratory and whose previous work at the

2 ICTY has only been for the Prosecution. I suggest that he had a tendency,

3 perhaps even unconscious, to downplay the possibility that the alleged

4 signature of the accused was not in fact his. I have great respect for

5 Dr. Kerzan who gave careful and considered evidence, although he worked,

6 as he himself admitted, in a bit of a hurry. But it's not a conspiracy

7 theory to suggest that he has unconscious tendencies to exaggerate or to

8 downplay certain features. And incidently he too gave absolute

9 conclusions on documents, it was not only Professor Bilic who did so. It

10 was the Prosecution's expert, Dr. Fagel he will who was in a minority in

11 never committing fully to a conclusion. And on the subject of Professor

12 Bilic, in my submission he had in fact the best range and variety of

13 non-contentious signatures of the accused that they dated from 1996, 1999,

14 2001, and 2003, and were produced for different purposes which the

15 literature recognises as the best sample.

16 Again in the context of the conspiracy theory, the Prosecution

17 referred to the Dutch video, "The Uncrowned King of Srebrenica." But we

18 suggest that the title of the video itself shows bias. It's a stupid

19 title, to be honest, and you can see right away where the makers of that

20 film are headed when you see the title. And even more so when you see the

21 crudely edited content. Now, of course, there are films and documentaries

22 which are polemical biased, sensationalist, or otherwise unprofessional.

23 I don't know why this film was made and I don't know why the Dutch

24 Evangelical Church saw fit to give a copy of the video to the Prosecution.

25 As I say that's a matter for them. It's not for us to provide an all

1 encompassing explanation for these things.

2 As my colleague mentioned yesterday, the Prosecution knows full

3 well that it's relying on documents which bear major indicia of

4 unreliability. They took witness statements from several witnesses, Dr.

5 Hasanovic, Dr. Pilav, Djanan Djananovic [phoen], Radomir Hodzic [phoen],

6 who said that they did not sign documents purportedly signed by them or

7 who otherwise cast doubt on the authenticity of documents shown to them by

8 the Prosecution. Some of these people were originally on the

9 Prosecution's witness list. The Prosecution simply dropped them and then

10 continued to rely on the documents any way as exhibits. Now, Your

11 Honours, the Prosecution cannot honestly ask you to believe that no one's

12 signature is ever forged and that every signature and every document is

13 exactly what it purports to be. You have to look into these matters.

14 I would add, Your Honour, a matter which is referred to in our

15 final -- in our closing brief and in the response, there is the confusion,

16 the constant confusion, between form and content, that even once one

17 establishes the document is authentic, that says nothing about whether the

18 contents of the document are true or not. That's an entirely separate

19 question.

20 Now at the opening of the trial the Prosecution said that raising

21 these issues of authenticity was a smoke screen and now they've stumbled

22 on a new term, conspiracy theory. They seem to be fond of terms from

23 Hollywood. We heard of the Wild Bunch conspiracy theory in Madonna in

24 only two days of the Prosecution's closing arguments. It's a very old

25 tactic to seek to discredit your opponent's position by first representing

1 it and then ridiculing the misrepresented position rather than addressing

2 the true position. And that's what they've done here.

3 I know Your Honours will not be impressed by that tactic

4 Moreover, the Prosecution's position on documents betrays a complete

5 double standard. The Prosecution received many documents in this case

6 from the Republika Srpska bureau for cooperation with the ICTY and through

7 Dejan Miletic who was fired by the High Representative for, among other

8 things, document concealment. In Blagojevic the Prosecution stated that

9 the RS government "sets out to perpetuate myths and lies." Myths and

10 lies. And that was in relation to the genocide in Srebrenica. And in

11 that case the Prosecution stated that the RS published "gross

12 propaganda." Gross propaganda and precisely in relation to Srebrenica

13 and that the RS "cannot be relied upon in any serious matter." Any

14 serious matter. Well, this trial is a serious matter, I hope, so if the

15 Prosecution were true too its towards, they would not rely on organs of

16 the RS and certainly not to the huge extent that had has done in this

17 case.

18 Most honourable people are held to their words and I wouldn't

19 expect the Prosecution to be any less honourable. Those are its own

20 words, the RS perpetuates myths and lies. The RS publishes gross

21 propaganda, and the RS cannot be relied upon in any serious matter.

22 Now, if the Prosecution meant those strong words and I have no

23 doubt that they meant them entirely when they said them in Blagojevic then

24 what should -- so that should give them pause about accepting wholesale

25 whatever exhibits the RS or Bosnian Serbs deliver to them in this case

1 against their erstwhile enemy. Remember that the Prosecution's exhibits

2 are not all seized collections. Many of them were provided individually

3 by RS organs or state officials in response to requests nor assistance or

4 RFAs from the Prosecution.

5 And the exhibits in which the Prosecution most relies in this

6 case, P598, P590, P608, for example, are precisely those with no chain of

7 custody which have not even been introduced by a Prosecution investigator,

8 and which have been authenticated by no one. Exhibits such as a diary

9 found in a meadow, undated lists from who knows where and created who

10 knows when, photocopies of alleged diaries but without the author being

11 called to testify about the entries. As far as the Republika Srpska as a

12 source is concerned, if I'd been sold a dud car by a used car salesman I

13 wouldn't go back there at all. If I had to go back, I would be very, very

14 careful before accepting what that salesman told me about his used cars.

15 And to use a Biblical metaphor if I had to dine with that person I would

16 take with me a very long spoon.

17 But as we warned in our opening speech, black is white in this

18 case and white is black, and so here we are told in so many words that the

19 RS government is a trustworthy and honourable source, and any document

20 provided by the RS can be relied upon fully even without chain of custody

21 evidence, and even without any witness confirming the truth of the

22 document's content. That is yet another myth by the Prosecution.

23 On the subject of chain of custody, Mr. Di Fazio said on Monday

24 that because archives from Srebrenica were seized by the Serbs there would

25 never be a complete chain of custody back to the source. That may be true

1 for some documents, not for all, mind, but that does not explain why there

2 was no chain of custody evidence once those documents were in Serb hands.

3 Why, as Radijevic [phoen] testified, Odivecic [phoen], excuse me,

4 documents were apparently dumped in someone's safe for years on end rather

5 than being properly logged and archived in accordance with the strict

6 practice tan rules of the Drina Corps.

7 Now, two final words on documents. The Prosecution says that our

8 approach to documents is selective because we have also used documents

9 from Serb sources, including the Sokolac collection. Well, as Your

10 Honours are well aware, we have used documents from that collection as

11 exhibits precisely to illustrate the documents from the Sokolac collection

12 are inherently unreliable, and we introduced 17 documents from the Sokolac

13 collection, and 12 of them we used to make our point about the lack of

14 authenticity of documents, and five documents showing lists of killed

15 persons which we also found in the Drina Corps collection were used

16 because we had independent indicia of their reliability.

17 And I have the exhibit numbers if Your Honour needs them.

18 The Prosecution does not seem to understand or not want to

19 understand that exhibits are tendered for different purposes. They argued

20 that we relied on prior statements of witnesses because we tendered them

21 into evidence. For example the prior witness statement of Mr. Zikic.

22 However, as I'm sure Your Honours understood we tendered prior statements

23 of Prosecution witnesses to impeach those witnesses by showing prior

24 contradictions, not to rely on those statements as to proof of the truth

25 of their contents.

1 There was also, Your Honours a fundamental distinction between

2 documents of the Drina Corps and Bratunac Brigade on which were seized by

3 the OTP at source, on the one hand, and then documents allegedly captured

4 by the Serbs from the enemy and then delivered to the OTP by the Serbs.

5 There is an obvious difference in reliability in terms of those two

6 categories.

7 And finally on documents, Your Honour, I would like to respond to

8 the Prosecution's remarks on Monday that by setting out our position

9 regarding documents for which there was no chain of custody and about

10 which no witnesses commented. We don't propose any iron-clad rule that

11 documents not shown to witnesses or which have no chain of custody

12 evidence are per se inadmissible or of no probative value --

13 JUDGE AGIUS: Before you proceed on this, let me make myself clear

14 because on Monday I did hint that you both have tendered documents which

15 you then did not use with your witnesses. The essential difference

16 between Prosecution and the Defence is the following: That to my

17 knowledge, out of the 315 documents that you did not use with your

18 witnesses, in your final brief you only referred to two, and it's a

19 neutral use of those two documents. In the case of the Prosecution, out

20 of the number of documents that you did not put to your witnesses, quite a

21 few of them that you rely specifically rely upon in your final brief and

22 in your response. This is the difference between the Prosecution and the

23 Defence. And this is what I would like you to address in your

24 submissions.

25 MR. JONES: Yes. Thank you, Your Honour. That was indeed one of

1 the points I was going to make. I believe it's, with one exception, I

2 think it's D513, we don't place reliance on any of the exhibits which --

3 or any of our own exhibits which have not been shown to witnesses.

4 JUDGE AGIUS: You refer only, I think, to D454 and 513. Again, I

5 am specifically saying that one is a decision proclaiming state of war in

6 the Serb Autonomous Region of Birac and the other one is a declaration of

7 threat of war from the Presidency of the Serbian Republic. So these are

8 not exactly.

9 MR. JONES: Well, Your Honour --

10 JUDGE AGIUS: The situation of the Prosecution use of such

11 documents is somewhat different so ... I don't have the list. I have it

12 here but it's somewhere. But any way, let's proceed. I don't want to

13 take any of your time.

14 MR. JONES: Yes, I thank you, Your Honour. Your Honour did

15 anticipate precisely what I was going to say.

16 JUDGE AGIUS: 198 out of 625, there are 198 documents that you did

17 not put to witnesses, and I have myself then marked all the ones that you

18 have basically referred to in your final brief and in your response and

19 there were quite a few.

20 MR. JONES: Yes, and for the record that's Prosecution documents,

21 just so it's clear on the record. 198 which have not been put to

22 witnesses. For our part, we do not place reliance on exhibits which were

23 not shown to witnesses in our closing brief. As Your Honour has noted,

24 those two exceptions are extracts from the Official Gazette of the Serbian

25 people whose existence may be independently verified in the Official

1 Gazette, and so that's a separate category. A second the Prosecution has

2 not challenged the authenticity of our exhibits whereas we have challenged

3 the authenticity of many of their exhibits, and that too is a very

4 important difference. If we introduce an exhibit and the Prosecution does

5 not challenge its authenticity, then in our submission there is no harm in

6 it remaining in the record for Your Honours to consider just as admitted

7 facts and stipulations may substitute for evidence a document has to which

8 there is no dispute may, of course, be considered by the Trial Chamber.

9 But not so with exhibits where one party --

10 JUDGE AGIUS: I hate to interrupt you but in my records at least

11 or in our records, not just mine, there are still D36, D127, D725, which

12 are a set of photos, and D822 which remain contested by the Prosecution.

13 On one or more grounds, on different grounds basically.

14 MR. JONES: All right. Your Honour.

15 JUDGE AGIUS: D36, for example, is contested on the basis of

16 relevance but --

17 MR. JONES: Yes, I'll review whether those documents were shown to

18 witnesses which I imagine most of them, if not all of them, were.

19 JUDGE AGIUS: They definitely were.

20 MR. JONES: Really, it's the triple effect, if I may put it that

21 way, Your Honour, a challenge to authenticity, the Prosecution's failure

22 to bring evidence properly to authenticate that challenged exhibit

23 combined with the fact that no -- that no witnesses confirmed the

24 document's authenticity or confirmed the truth of its contents. Sorry, or

25 challenged the failure to have any chain of custody evidence and also the

1 fact that it hasn't been shown to a witness to comment on the contents.

2 At that point, how can any significant probative value attach to such a

3 document? You do not know if such a document, when it was created, by

4 whom it was created, whether it was created by the purported author or

5 not, why it was created, whether its contents are completely true,

6 partially true, partially untrue, or completely false. You know nothing

7 about the document. So to rely on such a document particularly as a

8 Prosecution exhibit in a criminal trial of the accused is a pure leap of

9 faith.

10 So let me make clear that we are happy to be held to the same

11 standard for our exhibits that we set out for Prosecution exhibits. And I

12 would just add to that, that if the Prosecution is right in the thrust of

13 its submission that is a paper trial can be held in which the truth of the

14 contents of documents does not need to be established by any witness, we

15 could have concluded this trial after Ms. Manas, the Prosecutor's

16 investigator, introduced the exhibits at the start of the trial, we could

17 have simply had final briefs, closing arguments, and have gone home and

18 awaited Your Honour's verdict. It's not a serious approach on the part of

19 the Prosecution to a criminal trial.

20 Now, Your Honours I can turn to a consideration of the law. Will

21 Your Honours give me one moment, please?

22 [Defence counsel confer]

23 MR. JONES: Now I propose first --

24 [Trial Chamber and registrar confer]

25 JUDGE AGIUS: Sorry, Mr. Jones, but I wanted to have part of the

1 transcript copied and pasted.

2 MR. JONES: I propose first to deal with some general legal

3 points, then specific points in relation to command responsibility, and

4 finally the legal issues arising in relation to the detention charges.

5 I'll start with levee en masse. The Prosecution contests the

6 characterisation of the forces in Srebrenica as a levee en masse. Now the

7 standard definition of levee en masse is as set out on a slide which

8 should appear in a moment. Yes. And that's from the third Geneva

9 Convention, "inhabitants of a non-occupied territory who in the approach

10 of the enemy spontaneously take up arms to resist the invading forces

11 without having had time to form themselves to regular armed units." And

12 then members of a levee are treated as combatants if they carry arms

13 openly and respect the laws and customs of war. Now, consider that

14 definition. It fits like a glove, does it not, with all the evidence that

15 we've heard in this case of small, village-based, independent groups of

16 fighters who traded their pitchforks for rifles in Tony Birtley's phrase,

17 and which Hakija Meholjic also adopted at T-6961 who took up arms

18 initially hunting rifles and then whatever they could capture from the

19 Serbs to resist the tidal wave of the invading Serb forces who sought to

20 and eventually did occupy the entire Drina valley.

21 Now, Colonel Tucker who was familiar with the phrase, as a French

22 speaker and as an extremely well-educated army officer, thought that the

23 description of a levee en masse tallied perfectly with what he saw in

24 Srebrenica. And that was in March 1993 just before demilitarisation.

25 Now, the Prosecution pretends that this was a purely descriptive

1 characterisation as if he hadn't thought through the elements. Not a bit

2 of it. Colonel Tucker, as a high-ranking member of the British army,

3 showed that he knew exactly what the definition of a levee en masse was

4 when he agreed that it properly described the fighters in Srebrenica.

5 So question: "Now, going back to the quote from your statement in

6 Galic, civilians in the enclaves who is had taken up arms to defend

7 themselves. The question I'm going to ask you is partly as a French

8 speaker and as a military officer educated at Sandhurst and elsewhere, are

9 you familiar with the expression levee en masse?"

10 Answer: "Yes, I am."

11 Question: "Now you told us yesterday that the Serbs had occupied

12 60 per cent of the Republic of Bosnia-Herzegovina at the beginning of the

13 war. So would you essentially that they were invading troops on that

14 territory?"

15 Answer: "On the territory that they occupied, and forced the

16 people who were living there, usually Bosniaks, sometimes Bosnian Croats,

17 out of the area, yes."

18 Question: "So as a matter of military terminology, as a

19 matter of military terminology, would you agree that Srebrenica's

20 fighters, as far as you could tell, were a levee en masse in this sense?"

21 Answer: Yes.

22 Now, Colonel Tucker's description fits exactly with what

23 Prosecution and Defence witnesses alike described. Meholjic, Mujkanovic

24 and Becirovic, and I'm just mentioning Prosecution witnesses, all

25 confirmed that groups of fighters throughout 1992 and up to the

1 demilitarisation were not organised into properly formed units. Yet the

2 Prosecution challenges this categorisation of Srebrenica's fighters as a

3 levee en masse. Why? Well, they have to. They have to because

4 responsibility under Article 7(3) is incompatible with a levee en masse.

5 A levee en masse by definition is not organised under a responsible

6 command.

7 Now you may wonder how the Prosecution can dare to challenge the

8 testimony of its own witnesses regarding the lack of organisation and the

9 absence of properly formed units and uniforms amongst Srebrenica's

10 fighters. Now, I address the question of impeaching your own witness a

11 moment ago and this is a slightly different point: Even if the

12 Prosecution were allowed to impeach its own witnesses by bringing forward

13 evidence to contradict what they said, they never did so on these issues.

14 They didn't call any evidence other than this about the state of

15 Srebrenica's armed forces, the absence of uniforms, the absence of ranks,

16 the lack of weapons. This is the only evidence on those subjects.

17 So what arguments do the Prosecution seek to deploy? Well, they

18 are not based on evidence, they are purely theoretical. The first, I

19 suppose, is partially based on evidence. They say that Srebrenica's

20 fighters were not a levee precisely because they were all organised under

21 responsible command, namely the accused. Yet not a single person

22 confirmed this. Hakija Meholjic, whose evidence the Prosecution did not

23 challenge, testified that even after his nomination as TO commander, Naser

24 Oric had command only over his own men "he did not have power elsewhere."

25 Next the Prosecution argues that the fighters in Srebrenica were

1 combatants because allegedly they had uniforms and badges. I'm quoting

2 from paragraph 246 of the final brief. That proposition was completely

3 refuted by the Prosecution's own witnesses. We see that on the next

4 slide. Dr. Mujkanovic, "to speak about uniforms in Srebrenica is a futile

5 exercise." Colonel Tucker, "no one in the Srebrenica pocket had any

6 badges of rank that were identifiable or meaningful." Meholjic said,

7 "there was no bread, let alone ranks, that there were no markings by

8 which fighters could be distinguished from civilians and that anybody,

9 civilians or fighters, could wear the ribbons or bands that were sometimes

10 worn in actions." He said, "That there was nothing in place for efficient

11 control." We saw that slide yesterday.

12 Now, that's just their witnesses speaking. It's not our theory of

13 the case. As the Prosecution suggests. It's the Prosecution's own

14 evidence. In fact, the only people with uniforms in the area, Bosniaks,

15 were Nurif Rizvanovic's men, and since we were not given the 400 or more

16 documents of the Nurif Rizvanovic's collection until after the trial, the

17 day the last witness testified we were handed these documents, in what we

18 maintain is an appalling breach of Rule 68, probably the less said about

19 Nurif Rizvanovic and his men the better. I simply refer to what we said

20 about Nurif Rizvanovic in our closing brief.

21 In its argument supposing the notion of a levee en masse the

22 Prosecution then says if a civilian did night fight without a uniform and

23 without a weapon, then he "becomes a war criminal" a war criminal "by

24 feigning a civilian status." That's paragraph 245 of their closing brief

25 and they rely on additional protocol 1's prohibition on perfidy, Article

1 37(1)(C) of that protocol. This is yet another extraordinary proposition

2 by the Prosecution, that some poor soul fighting for his lifer against

3 Serb ethnic cleansing becomes a perfidious war criminal for taking up arms

4 against the Serbs when he doesn't have a uniform and maybe not even a

5 weapon. And those attacking him, the Bosnian Serb army I suppose are

6 legitimate combatants because they have nice uniforms. But we are back in

7 Alice in Wonderland again with the Prosecution's theory of this case. In

8 the Prosecution's hall of mirrors the Bosniak defenders of their homes are

9 not only vicious attackers of the peace-loving Serbs in the villages

10 surrounding them, they've now become war criminals too.

11 That it was the, dues used by General Mladic's forces for killing

12 7.000 men and boys in Srebrenica in July 1995, that they were all war

13 criminals and I shudder to think that the Prosecution's arguments in this

14 case can now be called in aid to justify that label. Srebrenica's

15 fighters were not war criminals but brave and desperate people fighting

16 with tremendous courage against a superior foe. And the fact that the

17 Prosecution prefers to argue that Srebrenica's fighters, having no

18 uniforms, weapons or barracks, are war criminals for quote "feigning their

19 civilian status," rather than admitting what they are, what their own

20 witnesses said they are, a levee en masse, shows how grotesquely distorted

21 and misguided this case has become. The Prosecution will take any

22 position in fact or law if they think it will help to secure a conviction

23 in this case. I ask what happened to the notion of a Prosecutor who sees

24 his duty as being simply to present the case fairly rather than to secure

25 a conviction at all costs?

1 A further argument, and I think I can deal with this before the

2 break, deployed by the Prosecution on Monday to argue against a levee en

3 masse is as the indictment concerns attacks that's factually different

4 from taking up arms upon the approach of the enemy but that, too, is a

5 simplistic and misguided argument. You don't assess whether a mass of

6 people are levee or not action by action, you can't be a levee one day and

7 then not a levee, and then a levee again depending on whether the enemy is

8 approaching you or you're approaching them. It's an assessment of the

9 fighting forces as they existed in an area at a given time.

10 I.e., is it a proper army with barracks, ranks, uniforms,

11 armouries, salaries, and regularly formed unit or not? And by all those

12 criteria in 1992 to 1993 Srebrenica's fighters were not a real army and

13 time and again that was the evidence of Prosecution witnesses as well as

14 Defence witnesses and international observers: Not a real army.

15 The Prosecution also argues, finally, that a levee en masse can

16 only be a temporary state of affairs because it soon gets organised.

17 Well, that's pure theory as well. It ignores all the evidence of how

18 things did not get better and better in Srebrenica in 1992 and 1993 but

19 progressively worse, how villages were cut off from each other by Serb

20 patrols, ambushes, and shelling, and how they felt that the Serb Pac-man,

21 referring to the video game of that name, with the enemy gobbling up

22 village by village. That's the enemy approaching. The enemy gobbling up

23 village by village, and they were doing it in March and April of 1993 as

24 they were in 1992.

25 So that's another prosecutorial myth based on nothing, that things

1 always go from good to better. In Srebrenica they went from bad to worse

2 and finally to catastrophic.

3 Your Honours, I think that's a good time for a break.

4 JUDGE AGIUS: Is 30 minutes good enough Mr. Jones or do you want a

5 shorter one.

6 MR. JONES: I'm a bit concerned about the time so perhaps a

7 shorter one.

8 JUDGE AGIUS: So we will have a 25-minute break starting now.

9 --- Recess taken at 10.30 a.m.

10 --- On resuming at 11.00 a.m.

11 JUDGE AGIUS: All right, Mr. Jones.

12 MR. JONES: Yes, thank you, Your Honour. Just two further points

13 on levee en masse before I move on to the legal elements of murder. You

14 will recall what Hakija Meholjic said about the use of names, even of

15 battalions and brigades et cetera, this was simply an "arbitrary way of

16 giving names to certain groups of people". So in regard to levee, I would

17 ask Your Honours not to be fooled, if you like, by the fact that such

18 names were used. Hakija Meholjic, a Prosecution witness, explained why

19 those names were used. And secondly the Prosecution argues that

20 Srebrenica's fighters ceased to be a levee, if it was a levee initially,

21 on the 20th of May 1992 because of the Bajramovici meeting.

22 Now, my colleague addressed that matter yesterday and,

23 Your Honours, Bajramovici was a gathering of a few village leaders who

24 decided to try to coordinate their efforts to fight the Serbs. And

25 hundreds of villages were not involved in Bajramovici. Yet according to

1 the Prosecution, the moment that meeting was held, somehow a cloud was

2 lifted and the whole of the area and all the fighters became magically

3 transformed into a proper army on that very day. Your Honours will make

4 what you will of that suggestion.

5 In our submission, Srebrenica was not just an example of a levee

6 en masse, it is a paradigm example, a perfect illustration of a levee en

7 masse in modern times of a citizenry who swapped their pitchforks for

8 rifles to stop their lands from being occupied and from being deported or

9 killed themselves. Now, turning to murder, I propose just to deal with the

10 law of murder, not the evidence; that's dealt with in our brief. I would

11 respond just to a few points, though. Firstly, regard the point raised by

12 the Prosecution regarding causes of death. If the requirement of murder

13 at of the perpetrator be a substantial cause of death and the evidence

14 does amply demonstrate that the Cerska prisoners were close to death when

15 they came to Srebrenica. And the Prosecution's arguments that the women,

16 since the women in the prison didn't die of other cause such as pneumonia,

17 that indicates that there was no such risk. Well, the women had not been

18 in Cerska apart from Andja Radevic [phoen], and she wasn't beaten in

19 Cerska, so that argument is, as I say, misplaced.

20 The fact is a that there were many things causing death in

21 Srebrenica in early 1993 and, we submit, Your Honours cannot simply assume

22 that any of the prisoners who died must have been murdered.

23 I also want to mention a couple of points in relation to the

24 exchange of C-007. First, I find it quite incredible that the Prosecution

25 still maintains that the accused was present for this exchange. They did

1 not properly put their case on that matter to Colonel Dudley or to Tony

2 Birtley or to Ejub Guster.

3 And secondly I want to emphasise the importance of the presence,

4 the alleged presence according to Colonel Tucker, of Morillon and Mihajlov

5 at that exchange, because it's not simply that we say that Colonel Tucker

6 made a mistake too about those people, who you recall would have had to

7 travel in the same APC as Colonel Dudley to the site of the exchange. But

8 the fact that Tucker according to his evidence, his reason for thinking

9 that the accused was there was partly based at least on what Mihajlov

10 said, and you can see in the following slide what he said:

11 Colonel Tucker, answer: "I believed correctly or incorrectly,"

12 you note allowed the possibility of error there, "that I was seeing Oric

13 but more significantly to me, it was Mihajlov who had the conversation was

14 him and it was, and Mihajlov had said, 'Oric said this,' 'Oric said

15 that,'" et cetera. "So it never occurred to me that this might be anyone

16 else and, to be honest, because I'm here, I did not personally carry out

17 the conversations with Colonel Oric because obviously I didn't speak

18 Serbo-Croat. But Mihajlov did, and I would find it surprising if Mihajlov

19 in speaking with somebody would realise that he was speaking with somebody

20 else."

21 So a lot of what Tucker says about that exchange depends on

22 Mihajlov being there. And Mihajlov, as we know, was the bodyguard or aide

23 de camp of General Morillon. They went everyone together. If Morillon

24 isn't there at the exchange, if Mihajlov isn't there, then it's obvious

25 Colonel Tucker's account is mistaken and neither Mihajlov nor Morillon

1 were there, according to Dudley, Birtley, and Guster. So on the accused's

2 presence in the exchange of 007, Tucker could not be more mistaken and

3 Your Honours will certainly fall into error if you find that the accused

4 was there.

5 Thirdly, Ms. Richardson said I think it was Tuesday, that it would

6 have been quite useful if we had shown the video of D1010 of the exchange

7 to Colonel Tucker when he was here. Well, as we made very clear in our

8 final brief, it was explicit, we found that video during the Defence

9 phase. And I only wish we had it in order to show it to Colonel Tucker,

10 because it may have changed his evidence about the accused's presence

11 entirely. And as I say, I certainly hope that the Prosecution does not

12 have that video anywhere in their archives.

13 On the law of murder the Prosecution contradicts itself when

14 dealing with prove case and murder. It states without citing any

15 authority, "provocation is not a defence recognised in international law."

16 That's paragraph 6 of the response. But then they say "a mere

17 verbal insult is legally insufficient to provoke murder." First that

18 formula is question begging because if provocation applies, it's not

19 murder but manslaughter, but second, saying that a verbal insult is

20 legally insufficient implies that the matter is indeed regulated by law

21 which the Prosecution had just denied. Our submissions remain on

22 provocation, and particularly on the injustice that a charge of murder

23 against this accused should turn on facts completely outside his

24 knowledge, namely on whether or not Kemo was sufficiently provoked to lose

25 his self control by Kukic. If there was even a possibility that Kemo

1 killed Kukic unintentionally in a furious moment when he saw red after

2 Kukic said "Fuck your Ustasha mother," then that should take it out of the

3 realm of murder.

4 I turn now to cruel treatment. The Prosecution states that the

5 mental element of cruel treatment includes both direct and indirect intent

6 but that's not what is stated in the case law. A standard definition of

7 cruel treatment is given in the Celebici trial judgement at paragraph 517,

8 and it's very clear. "An intentional act or omission which causes serious

9 mental or physical suffering or injury or constitutes a serious attack on

10 human dignity."

11 There is no mention of indirect intent. Also on cruel treatment

12 the Prosecution says that we accept that "detainees were subjected to

13 inhumane conditions of detention." Now, this is a typical gross

14 distortion of what we said in our brief. What we said and it's on the

15 next slide, I believe, is at paragraph 227. I won't read out the whole

16 paragraph but you'll see from that that we needed admitted cruel treatment

17 in our closing brief nor do we seek to excuse the fact that were often

18 cold and did not have ample food. It's a question of what could be done

19 for those people. Thousands of people were starving to death in

20 Srebrenica in 1992 to 1993 because the Serbs were not letting food in.

21 They were freezing to death because it was a bitterly cold winter, the

22 Serbs had cut off the electricity and there was no [indiscernible] fuel to

23 be had. No one in Srebrenica had proper sanitation or a clean water

24 supply. Now, these things could not be conjured up out of thin air for

25 the Serb detainees and that's our point and it's an obvious one: The law

1 does not require people do the impossible.

2 I turn to wanton destruction. On the law which applies to wanton

3 destruction the Prosecution in its closing brief invokes the notion of

4 indiscriminate attacks and states that we did not address it. Well, we

5 did not address it because the accused is not charged with launching

6 indiscriminate attacks. He's charged with wanton destruction. And the

7 Prosecution should reread their own indictment and remind themselves of

8 what crimes the accused is charged with.

9 Now my colleague set out the correct approach to be taken with

10 respect to wanton destruction under additional protocol 1 in terms of

11 first determining, the first test is to determine whether the attack was

12 on a military objective, and, second, to see whether any damage caused was

13 incidental to that legitimate attack. She also addressed the issue of who

14 bears the burden of proving that any damage done was not incidental to an

15 attack on a military objective and that that damage was done by the

16 accused's subordinates. The burden is on the Prosecution to prove these

17 matters beyond a reasonable doubt. In its brief in response the

18 Prosecution's ultimate fall back is, well, no attack should have been

19 launched on these villages. That rather than risking damage to Serb

20 property, the Muslims in Srebrenica should have stayed in the basements

21 and cellars where they were sheltering from Serb shelling and simply died,

22 starved to death. There is no law against dying, only fighting back.

23 I'm sure the people of Srebrenica are glad that they were defended

24 by people of Oric's ilk and not people with that attitude because that's

25 simply a chance for defeatists. It's a counsel for lambs to be led to

1 slaughter rather than to resist. Not once has the Prosecution proposed a

2 realistic standard or model for analysing the unique problems posed by the

3 warfare, the terrain, and the presence of thousands of starving civilians

4 in Srebrenica. And why would they? For the Prosecution, in Srebrenica it

5 was only ever a "so-called siege." That's the express they use in their

6 response between paragraphs 13 and 14 and I invite the public to see that.

7 According to the Prosecution it was not a real siege. What would a real

8 siege be according to the Prosecution? I can't imagine what it would

9 take, how much worse the situation would have to be, before the

10 Prosecution would admit that the poor people of Srebrenica were under

11 siege. I wonder whether for them, whether Sarajevo was under siege, and I

12 wonder if I see a phrase like the "so-called siege of Srebrenica," almost

13 mocking, whether the Prosecution has lost its moral compass altogether.

14 I turn now to aiding and abetting and the elements of that form of

15 liability. Aiding and abetting, Your Honours is only mentioned in the

16 indictment and in the Prosecution's pre-trial brief in relation to count 5

17 of the indictment. It was not cited and it cannot be called in aid for

18 any of the other counts in the indictment.

19 Our whole strategy at trial is based on what the Prosecution set

20 out in its indictment and in its pre-trial brief. We have never had to

21 consider aiding and abetting in relation to the detention charges. And

22 I'll return to that subject shortly.

23 In terms of the elements for aiding and abetting the Prosecution

24 says that there is no authority for the proposition that for aiding and

25 abetting the accused's contribution must be direct. There is ample

1 authority, and I refer to the Tadic trial decision 7th of May 1997,

2 paragraphs 689 to 692 for the direct and substantial formula is used. And

3 it's also used in the Celebici trial judgement. At paragraph 326. It's

4 worth recalling how serious the crimes are under the ICTY statute. It

5 does a disservice to this body of law to seek continually to water down

6 the elements that need to be proved so that everyone is caught in the web

7 of criminal liability. The law is held in higher esteem if the

8 appropriate high thresholds are applied and not circumvented. And it's in

9 that spirit that I turn to the law of command responsibility and I say

10 that nothing will do more to undermine the esteem in which international

11 humanitarian law is held than by overextending the concept of command

12 responsibility.

13 We do well to remember the origins of command responsibility, an

14 extremely well organised armies, the Japanese and German armies during

15 second world war with uniformed soldiers organised into ranks with

16 barracks, units, and presided over by military commanders with decades of

17 experience and with all the rules, regulations, courts, necessary to

18 maintain discipline. And then in those cases, massive crimes, tens of

19 thousands of people killed, Yamashita, for example, thousands of people

20 killed, civilians in Manila under the watch of those commanders. That's

21 what command responsibility evolved to deal with. It did not evolve as a

22 matter of strict liability by which a commander is responsible for every

23 single act by anybody, man, woman or child, whether he knows about it or

24 not. If that is what the Prosecution would have the law be and I've tried

25 to trace the potential liability of a commander under their theory of

1 command responsibility as set out in the final brief. And it reminds me

2 of that song, "I danced with a man who danced with the girl who danced

3 with the Prince of Wales." It's an endless daisy chain of liability

4 whereby a commander is responsible for what someone else did in respect to

5 helping someone else who might have incited someone else to plan, to aid.

6 It goes on and on.

7 And according to the Prosecution if a commander had some

8 information, not even information of a crime being committed by his

9 subordinates, but some vague, general information of the subordinate being

10 about to plan, to aid and abet another, to instigate, the attempted

11 commission by another of the crime of incitement, it goes on and on.

12 That's not the law. Nor has it ever been.

13 Let's recall what the Celebici Trial Chamber said on this

14 subject. "Great care must be taken, great care must be taken, lest an

15 injustice be committed in holding individuals responsible for the acts of

16 others in situations where the link of control is absent or too remote."

17 Absent or too remote.

18 And now if the law of command responsibility with were as proposed

19 by the Prosecution, would anyone respect it? Would people take seriously

20 a law which dispenses with the most elementary requirements of legality,

21 of clarity, and of distinctly defined mens rea and acts reus? They would

22 not. Now the Appeals Chamber of this Tribunal is increasingly cautious

23 about applying theories of criminal responsibility which cannot clearly be

24 shown to exist under customary international law, and I refer to the

25 Appeals Chamber's decision on interlocutory appeal challenging

1 jurisdiction in relation to command responsibility in

2 Hadzihasanovic-Kubura dated 16 July 2003, and I believe we have a slide.

3 Yes. "The Appeals Chamber holds view that this Tribunal can pose criminal

4 liability only if the crime charged was clearly established under

5 customary law at the time the events in issue occurred. In case of doubt,

6 criminal responsibility cannot be found to exist. Thereby preserving full

7 respect for the principle of legality." And that's exactly how it should

8 be. And in that same decision, indeed in the same paragraph in applying

9 this approach the Appeals Chamber held that "an accused cannot be charged

10 under Article 7(3) of the Statute for crimes committed by a subordinate

11 before the said accused assumed command over that subordinate. And that's

12 an important binding holding by the Appeals Chamber to which I shall

13 return.

14 Your Honours the Tribunal has one sure instrument for command

15 responsibility and that's Article 7(3) of the Statute. And that deals

16 with the responsibility of a superior for crimes committed or about to be

17 committed by his subordinates. Nothing more. It does not cover liability

18 of a superior for his subordinates' aiding and abetting crimes. Only

19 committing crimes.

20 Now the Trial Chamber so held in the Blagojevic judgement of 17

21 January 2005 and it's paragraph 794. Now the Prosecution is appealing the

22 Trial Chamber's judgement but the Trial Chamber correctly stated the law

23 and that's the law of the Tribunal, and Your Honours can be safely guided

24 by it. The Prosecution has not proved that subordinates of the accused

25 committed murder or cruel treatment and has not proved under Article 7(3)

1 that subordinates of the accused perpetrated crimes in the SUP or in the

2 building and the accused is therefore entitled to an acquittal on the

3 counts relating to detention.

4 Now I'll return to that subject in more detail after addressing

5 some other features of the Prosecution's approach to command

6 responsibility.

7 Concerning the mens rea requirement the Prosecution contends that

8 there is no requirement that the superior's "negligence was so serious as

9 to amount to malicious intent." Again, there is abundant authority for

10 this and the Prosecution cannot be so ignorant of the law and if they know

11 of it it's a breach of their duty to the Court to suggest, even to suggest

12 that there is no authority. The fundamental authority is from the

13 official commentaries to additional protocol 1 by Claude Pilleau [phoen]

14 et al. And if we recall that Article 7(3) of the Statute is actually

15 based on Article 86 of additional protocol 1, and that's the conventional

16 source for Article 7(3), we see how important the commentary on that

17 Article is. And the commentary says this: This does not mean that every

18 case of negligence is criminal. For this to be so, the negligence must be

19 so serious that it is tantamount to malicious intent. So there they are,

20 the exact words we used, malicious intent. "The negligence must be so

21 serious that it is tantamount to malicious intent apart from any link

22 between the conduct in question and the damage that took place.

23 "This element in criminal law is far from being clarified but it

24 is essential, essential, since this is precisely on the question of intent

25 that the system of penal sanctions in the conventions is based."

1 Now those words are terribly important in my submission, the

2 system of penal sanctions in the Geneva Conventions is based on the

3 question of intent and that in turn is essential. Now, Your Honours, the

4 Tribunal has not always adhered to those words, and I hesitate to say that

5 it may prove to be one of the major legal mistakes in this Tribunal to

6 convict people of intent-like crimes, like murder and rape, when they had

7 no intent. And you will have noticed that national jurisdictions

8 implementing Article 28 of the Rome Statute, the equivalent of Article

9 7(3) are very wary of how they are adopted into their domestic

10 legislation. Many nations recognising the injustice of penalising what

11 Professor Chavez [phoen] calls, "the commission of a crime of intent by

12 negligence," have enacted a separate crime of dereliction of duty where

13 they prosecute command responsibility only when there is an intentional

14 element. And as Your Honour Judge Eser will be aware, under section 4 of

15 the German code of crimes against international law [German spoken], "the

16 criminal responsibility of a superior can only be incurred nor an

17 intentional, [German spoken] omission to prevent a subordinate from

18 committing a crime. And these positions in national law fit far better

19 with what was said about the required mens rea in the first cases on

20 command responsibility, and that this is what was said in USA versus

21 Wilhelm von Leeb, the high command case, and that's 27 October 1948. I

22 won't read the whole extract. But you see there the important part,

23 "there must be a personal dereliction by the commander "that can only

24 occur -- that can occur only when the act is directly traceable to him or

25 where his failure proper toy to supervise his subordinates constitutes

1 criminal negligence on his part. In the latter case it must be a personal

2 neglect amounting to a wanton immoral disregard of the action of his

3 subordinates amounting to acquiescence. Any other interpretation of

4 international law would go far beyond the basic principles of criminal law

5 known to civilised nations."

6 Now these words are highly important to bear in mind and a caution

7 against adopting the watered-down approach favoured by the Prosecution

8 which does basically equate to strict liability, ultimately. And why do

9 we say it equates to strict liability? Let me take an example. According

10 to the Prosecution a superior has inquiry notice of a crime if he could

11 just potentially have access to information about a crime being committed.

12 And according to the Prosecution, having access includes when the

13 subordinate knows of the crime and the accused doesn't consult him. But

14 if that were true, then every time a subordinate committed a crime the

15 accused would per se have inquiry notice of the crime, strict liability.

16 You'll find a pattern here. Whenever the Prosecution sets out its

17 interpretation of command responsibility, it tries to push it towards

18 strict liability and away from any form of intent. And now, they are even

19 trying to push command responsibility away from responsibility for

20 subordinates towards responsibility for third parties. Now that is

21 utterly contrary to basic principles of criminal law and the intentions of

22 the drafters of additional protocol 1 and the framers of the first dock

23 drinks of command responsibility after World War II, and moreover the

24 malicious intent standard has been affirmed by the Rwanda Tribunal in its

25 very first judgement. And I refer Your Honour to paragraphs 488 to 489 of

1 the Akayesu trial judgement of the 2nd of September 1998.

2 There is another very important principle in relation to the mens

3 rea requirement for command responsibility which the Appeals Chamber set

4 out in their Krnojelac appeal judgment, 17 September 2003, and, Your

5 Honour Judge Agius, will, of course be familiar with that judgement

6 because you sat on the panel, as I believe. The Prosecution argued in

7 that case that in order to have inquiry notice, the information received

8 by the superior need not point to any specific crime; the superior need

9 only receive information of a general nature, putting him on notice of the

10 risk of crimes being committed. And the Appeals Chamber, after reviewing

11 the case law, had this to say. It's at paragraph 155. Now since it's on

12 the slide I won't read it and I simply refer the Trial Chamber to that

13 extract but the gist of it is information about beatings does not equate

14 to information about torture, if I may summarise it that way.

15 And thus the Trial Chamber said "it is not enough that an accused

16 has sufficient information about beatings inflicted by his subordinates,

17 he must also have information, albeit general, which alerts him to the

18 risk of beatings being inflicted for one of the purposes provided for in

19 the prohibition against torture inquiry." Now the same reasoning applies

20 to this case and the question about cruel treatment, the first offence,

21 and information about murder, second offence. Information about the first

22 does not equate to information about the latter.

23 Now I turn now to the command responsibility issues arising

24 specifically -- my apologies, Your Honour

25 JUDGE AGIUS: Slow down. I don't want to interrupt you but I have

1 a note from the interpreters that they are having problems. So please

2 slow down as much as you can. Thank you.

3 MR. JONES: Yes. My apologies, Your Honours, and my apologies to

4 the interpreters. The next slide we have a diagram which is to illustrate

5 the Prosecution's theory of the case as it now emerges, not even in the

6 Prosecution final brief but for the very first time in their response to

7 our closing brief. In its response the Prosecution argues for the very

8 first time that the accused may be held responsible for crimes committed

9 by what we call opportunistic visitors to the prison and I'll use prison

10 for shorthand for the SUP or the building by virtue of Article 7(1), and

11 in that regard we make three points: That such an approach is ultra vires

12 the Statute, that it was not pleaded, and it certainly hasn't been proved.

13 I refer Your Honours again to the indictment and the pre-trial

14 brief. You will see that aiding and abetting is nowhere argued, Article

15 7(1) is no where cited in relation to the detention charges, only in

16 relation to the wanton destruction of Fakovici, Bjelovac, and Kravica, and

17 Jezestica on the 7th of January.

18 Now it's a fundamental principle of a fair criminal trial that the

19 Accused knows the charges that he has to answer, in fact, and in law,

20 before the trial commences. And I cannot emphasise that point strongly

21 enough. The Tribunal's case law amply sets out the requirement for all

22 material elements to be pleaded in the indictment, and this has recently

23 been confirmed in the Hadzihasanovic-Kubura trial judgement at paragraph

24 269. And I would also refer Your Honours to that judgement in its

25 entirety for its many important dicta on command responsibility. So since

1 nowhere in the indictment or the pre-trial brief did the Prosecution argue

2 that the Defence or Your Honours would have to consider aiding and

3 abetting and the elements of aiding and abetting in relation to the

4 detention charges, we were not on notice that the Prosecution would be

5 making that argument. It was not pleaded. The Prosecution has only

6 thought of using Article 7(1) in relation to the detention charges

7 recently, and it is not permitted to raise that for the first time after

8 all the evidence that is been heard.

9 Nonetheless since this argument has been raised I feel obliged to

10 respond to it. Now, we, of course, do not accept that the accused was the

11 superior of the guards at the SUP or at the building. These locations

12 were under the control of the civilian police within which the military

13 police was located, and under control of the War Presidency, and I refer

14 Your Honours to paragraphs 532 to 549 of our closing brief. We also

15 reject that the accused had de jure or de facto authority over the

16 military police in Srebrenica. And that's dealt with at paragraphs 584 to

17 682 of our closing brief. And the points made in those paragraphs are

18 barely addressed by the Prosecution, and again I invite Your Honours to

19 note our arguments there and the evidence we cite and to infer that since

20 the Prosecution has no convincing rebuttal to the evidence cited and the

21 points made, that it's because they have no explanation.

22 So the issue set out in the schema does not in any event arise on

23 the facts but we address it for the sake of argument. Now if the accused

24 were the superior of guards at the two prison locations, or the guards

25 themselves did not commit murder or cruel treatment but rather

1 opportunistic visitors then you'll note the following, first the

2 perpetrators are unknown and you will note in this regard that in the

3 Blagojevic trial judgement at paragraph 794 the Trial Chamber precluded

4 command responsibility for unknown perpetrators. Second, the perpetrators

5 do not even belong to an identifiable group which could even arguably be

6 under the command of the accused. They are just unidentified individual

7 perpetrators. And Your Honours yourselves emphasised the need and this

8 was in your 98 bis decision for unidentified perpetrators to at least be

9 members of some identifiable group subordinated to the accused. In this

10 scheme, you'll see that there is no link between the accused and the

11 actual perpetrators of the crimes. The perpetrators are not even argued

12 to be the accused's subordinates or under his effective control.

13 The subordinates are not the perpetrators of the crimes. And so

14 to attribute criminal responsibility to the accused would, as we said in

15 our closing brief, be a, what we termed a double-normative attribution

16 use, "obejektive Zurechnung," I believe may be the term in German.

17 Horizontally via Article 7(1) to reach the subordinates, and then

18 vertically via Article 7(3) to finally reach the accused on the

19 Prosecution's theory. Now this double-normative attribution is not

20 contemplated by the Statute and it would be considered ultra vires in any

21 civilised system of law.

22 Now I wish to emphasise 3 points in this regard. This is --

23 Article 7(3) clearly covers liability only for subordinates committing

24 crimes, not for all the inchoate forms of liability. Now this submission

25 is borne out by three considerations, at least. First, that's the holding

1 in the Blagojevic judgement, and that judgement was explicit. The

2 accused's subordinates had "rendered practical assistance that furthered

3 the crimes of murder and extermination." But the subordinates had not

4 committed the crimes themselves and that meant that one could not say whom

5 the accused had a duty to punish. In Blagojevic was there ever been

6 acquitted in relation to those counts. Now, if the Prosecution does rely

7 on crimes perpetrated by visitors to the prisons, whom do they say the

8 accused was under a duty to punish? Under Article 7(3) the only duty

9 could be to punish the guards. But punish for what? For letting people

10 into the prison to mistreat prisoners? Yet there is no evidence that the

11 Accused ever received any information that that was happening. And there

12 is no evidence, not one line of transcript or one exhibit, which the

13 Prosecution can point to, to show that the accused knew that guards at the

14 two prison locations were letting people into those locations to mistreat

15 prisoners and that in itself should be an end to the story.

16 If you'll forgive me, Your Honours, my screen is frozen.

17 Second, Article 7(3) refers in its own terms to committing, not

18 participating in or perpetrating crimes. Now, third, this submission is

19 borne out by two fundamental principles of statutory interpretation which

20 is set out in the Delalic et al trial judgement paragraph 158 to 171.

21 First of all, the literal interpretation, i.e. interpreting a provision

22 according to its plain meaning, unless that leads to uncertainty or

23 repugnance. Well, the words of Article 7(3) are plain and crystal clear.

24 They cover crimes committed by subordinates, not committed by others and

25 aided and abetted by subordinates. And there is nothing absurd about that

1 result.

2 In its response to our closing brief, Prosecution states at

3 paragraph 28 "the Defence argument assumes that the term committing in

4 Article 7(3) must have the identical meaning to committing under Article

5 7(1)." Well, that's actually a pretty reasonable assumption, isn't it,

6 that one word has the same meaning when it's used in the same article of

7 the Statute. I don't see anything absurd about that at all. It's for

8 the -- the burden is on the Prosecution to show that that interpretation

9 is absurd.

10 And the burden is also on the Prosecution to show that state

11 practice and opinio juris support its argument that a superior may be held

12 responsible for crimes which were not even committed by his subordinates,

13 and I defy them to find a single precedent. The Prosecution goes on to

14 say, "Nothing in Article 7(3) suggest that liability under that article

15 applies only where a subordinate engaged in criminal conduct only through

16 the committing mode of liability."

17 Well again, nothing suggests it, the plain words of Article 7(3)

18 state it. They prove it beyond doubt. The drafters of Article 7(3) could

19 have used other words, participating or perpetrating, but they didn't.

20 They used the word "committing," and that word committing has been clearly

21 defined by Tribunal jurisprudence to refer to, if we have the

22 slide, "Physically perpetrating a crime or engendering a culpable

23 admission in [indiscernible] criminal law. And that's in the Krstic

24 judgement at paragraph 601, and that definition has been uphold in many

25 other cases. The use the word "or" in Article 7(1), "committing or

1 otherwise aided and abetted," also shows that committing is contrasted

2 from other forms of liability listed there, and particularly contrasted

3 from aiding and abetting.

4 Committing is utterly distinct from aiding and abetting as wealth

5 as from planning, instigating, ordering, and joint criminal enterprise.

6 As Article 7(1) and that paragraph from Krstic makes clear, that since it

7 goes on to define all the other forms of liability.

8 So does Article 2 of Statute make it clear that committing or

9 ordering to be committed. Committing is not used in the Statute, as the

10 Prosecution suggests, as a broad term to cover all forms of criminal

11 liability.

12 The other fundamental principle, of statutory interpretation is in

13 dubio pro reo, namely if there is any doubt, it's to be resolved in favour

14 of the Accused. Now the Prosecution raises a host of objections to this

15 careful and correct position held in Blagojevic that Article 7(3) is

16 limited to committing. None of them are convincing. And I'll deal with

17 those arguments one by one, but first an overview of the Statute will help

18 set things in order.

19 The crimes in the ICTY Statute are set out in Articles 2 to 5.

20 Article 7 is not a crime-creating or jurisdiction-conferring article. It

21 sets out forms of liability in the crimes set out in Articles 2 to 5. And

22 there are two separate pillars, Article 7(1) and Article 7(3). You can be

23 responsible for those crimes through 7(1) or through command

24 responsibility under 7(3). Article 7(3) does not refer to Article 7(1)

25 and Article 7(1) does not refer to Article 7(3). They are self standing

1 independent pillars of criminal liability. This was recently confirmed in

2 the judgement of Hadzihasanovic-Kubura. It says there, [French spoken]

3 Article 7(3) is a sui generis, a unique responsibility, and distinct from

4 that provided for by Article 7(1) of the Statute. Yet the Prosecution

5 argues that whenever committing appears in the Statute it's shorthand for

6 all the other forms of liability in Article 7(1). And there is nothing to

7 support such an argument.

8 It were so then Article 2 would not refer to committing or

9 ordering to be committed.

10 Article 4 on genocide would be nonsensical because it states that

11 conspiracy to commit genocide and direct and public incitement to commit

12 genocide are also punishable offences as well as the other acts when

13 committed with genocidal intent. But according to the Prosecution, it

14 would be unnecessary to state all that and because committing can simply

15 be read to include all those forms any way.

16 Prosecution relies on Articles 1, 9 and 29 of the Statute to

17 justify their argument. But the appeal to these articles is also

18 unsustainable. As a matter of territorial jurisdiction it's a requirement

19 of the Statute be committed on the territory of the former Yugoslavia, and

20 that means physically committed on the territory. If a crime were

21 committed elsewhere, let's say in the United Kingdom, but aided and

22 abetted in the former Yugoslavia that would not fall within the competence

23 of this Tribunal. So committing -- "committed" there means physically

24 committed. And that's why Article 1 and Article 9 refer to crimes

25 committed in the territory of the former Yugoslavia. As for Article 29

1 that doesn't concern jurisdiction or criminal responsibility and in fact

2 it doesn't even use the word committed but committing in the English

3 version. The Prosecution would have to rely on the French version to make

4 its point.

5 Article 29 moreover is not -- it's a poorly drafted provision, if

6 I may put it 245 way because it should also refer to crimes committed on

7 the territory of the former Yugoslavia since states are not obliged to

8 assist its Tribunal in its investigation of any crimes committed

9 anywhere. So the whole body of the Prosecution's controversial theory on

10 Article 7(3) that commit something shorthand for all the other forms of

11 liability cannot be supported by the reference to one poorly chosen word

12 in the French version of a non-substantive Article of the Statute dealing

13 with state cooperation.

14 Since the Prosecution's theory fails as a matter of statutory

15 interpretation the Prosecution argues that a literal interpretation of

16 Article 7(3) would lead to illogical results because a commander is

17 obliged to prevent any criminal conducts by his subordinates. But that is

18 completely question begging. It begs the very question of whether Article

19 7(3) does indeed cover all the other forms of criminal conduct. That's a

20 boot strapping argument. If a commander did know that his subordinates

21 were planning to aid and abet others to commit crimes and he did nothing

22 he may well be liable under conventional theories of criminal liability.

23 His omission to act may be a type of accomplice liability or of

24 instigation or conspiracy, depending on the circumstances.

25 The facts might also be an appropriate case for joint criminal

1 enterprise. But in any event, if there is a gap in the law, the

2 requirements of legality and the requirement that crimes prosecuted by the

3 ICTY be clearly defined in customary law - and I would argue in

4 conventional law, too - means the Prosecution cannot simply justify any

5 extension of the law as a filling-in exercise or as a tidying-up exercise.

6 It has to provide solid precedent to justify its radical interpretation of

7 Article 7(3) which would make a person responsible for crimes committed by

8 throws over whom he was no effective control.

9 Second, even leaving all of that aside, even if the law did allow

10 such an interpretation, it was not pleaded in this case. I won't dwell on

11 that, Your Honours. I think I've made that point sufficiently clear.

12 Third, and finally and as demonstrated in our closing brief there

13 is a complete absence of evidence as to how in fact opportunistic visitors

14 entered the two detention locations. Did they break in, as suggested by

15 some evidence? Was there a lock at either of the locations which someone

16 negligently failed to lock? Or was there no lock at all? When did people

17 get into the prison? And who specifically let them in? Did the people

18 who let them in do it wilfully or negligently? Were they asleep or drunk

19 when people got in? Or were they forced or threatened and acted under

20 duress and therefore without the requisite intention? Why did visitors

21 have to beat the prisoners through the bars? Was it because the guards

22 tried to stop abuse by keeping the cells locked? Were there other

23 incidents like those mentioned by Ratko Nikolic where the guards tried to

24 prevent mistreatment of detainees? Your Honours will recall that

25 Mr. Radic testified, "Nobody touched us by day. We were left alone."

1 Well, were the guards even still on duty at night? There is a complete

2 evidential void on the subject. In sum, we simply do not know how, why,

3 under what circumstances, visitors gained access to the detention premises

4 because no evidence has been brought on the matter.

5 Now the Prosecution could have called a guard or a perpetrator or

6 someone who would have explained how it came to be and you'll see that in

7 other cases you'll have evidence from guards and from visitors saying I

8 was let in or there was a general knowledge that this was happening and

9 the camp commander knew that people were breaking in. You'll -- these are

10 not necessary evidential voids, they are filled in, in most cases but not

11 in this case. And so, Your Honours, you can not simply go for the worst

12 assumption from a whole universe of assumptions, namely that the guards

13 must have acted as co-perpetrators with the visitors and intentionally let

14 them in to beat and kill prisoners.

15 Since you can't find that, the guards cannot be liable for murder

16 and cruel treatment, and so neither can the accused through Article 7(3).

17 Finally, Your Honours, and I make this only as a fallback

18 submission if Your Honours were not to accept any of the arguments that I

19 just made, I submit that you still could find the accused guilty as there

20 has been no proof, not a single tittle of evidence that the accused knew

21 the guards were letting opportunistic visitors into the prison to mistreat

22 detainees. And the Hadzihasanovic-Kubura judgement deals with the fact

23 that knowledge does have to be of a certain level of specificity. And

24 certainly if this is the mechanism by which crimes were committed, guards

25 letting people in, then it must be proved that the accused knew that was

1 happening. Or at least was even on inquiry notice that that was

2 happening.

3 Now the only identified perpetrator of any of the crimes is Kemo,

4 according to the evidence of Radic. And I won't rehearse all the evidence

5 on Kemo. It's set out in our closing brief. But I will make one point.

6 That Kemo was not under the accused's effective control is, again, the

7 evidence of Prosecution witness Dr. Mujkanovic, who was categorical on the

8 subject, and that the Prosecution seems to think that they can ignore that

9 evidence too. And again, that's evidence we relied on, and perhaps we

10 would have called witnesses to deal with Kemo if we ever dreamt that the

11 Prosecution would be allowed to depart from what its own witness said.

12 Regarding documents relied on by the Prosecution relating to the

13 Pale Territorial Defence, none of them shows that Kemo was the accused's

14 subordinate, much less that he was his subordinate on the 25th of

15 September, 1992, the day that Kukic was killed according to Radic, and,

16 Your Honours, that's why I referred earlier to a section of -- I believe

17 it was the Kunarac judgement, that, of course, the subordinate has to be a

18 subordinate at the date that the crimes were committed by him. And as the

19 Appeals Chamber held in the Kunarac judgement, paragraph 399, "To be held

20 liable for the acts of men who operated under him on an ad hoc or

21 temporary basis, it must be shown that at the time when the acts charged

22 in the indictment were committed these persons were under the effective

23 control of the accused."

24 And the Chamber referred to the Appeals Chamber's judgement in

25 Celebici, paragraphs 197 to 198 and 256.

1 Now, Your Honours will recall the abundant evidence of witnesses,

2 including Hakija Meholjic who was emphatic on this point, that people

3 changed groups all the time. They could drift back and forth between

4 groups of fighters as they liked. So in these circumstances, it's crucial

5 to know when someone was in a group in order to find that he was a

6 subordinate. So even if the Kemo who killed Kukic is Kemo Mehmetovic

7 rather than Kemo Ahmetovic as claimed by Radic, none of the Prosecution's

8 exhibits show that he was the accused's subordinate on the 25th of

9 September, 1992.

10 Now on the subject of Kemo, you will recall that it was he, not

11 the accused, who, according to Radic, came into the cell when Kukic's body

12 was there. Now in our response to the final brief we pointed out the

13 Prosecution had misstated the evidence on that point, and in fact, we

14 pointed out 13 major misstatements of the evidence, mischaracterisations

15 on crucial matters, not a mere slip of the pen, and we said this at

16 paragraph 27 of our response: "The Prosecution has misstated the evidence

17 on critical matters, the Defence calls upon the Prosecution immediately to

18 concede that the examples below are errors or the Defence will be forced

19 to conclude that the Prosecution is deliberately seeking to mislead the

20 Chamber on the evidence and to secure convictions on an erroneous basis."

21 Now that was on the 24th of March, 2006, nearly two weeks ago.

22 You've heard two days of Prosecution closing arguments. They made partial

23 admissions on two points that they had mischaracterised the evidence, one

24 regarding the accused's presence in the cell and one regarding Ahmo Tihic.

25 I'm going to come to the way in which they -- they tried to cover that

1 mistake in a moment, but they have not admitted that they misstated the

2 evidence on the following points: False statements about the accused

3 allegedly taking Sarac from the SUP; false statements about visitors to

4 the prison; false statements about Mirzet Halilovic being subordinated to

5 the accused; false statements about the accused's presence during beatings

6 of Ivanovic in the building; their confusion about what happened in Cerska

7 with what happened in Srebrenica; misstatements about identification of

8 the accused by Sarac, as if he were a witness; misstatements about Nikolic

9 being escorted to the SUP by the accused; misrepresentations about the

10 black Mercedes; misrepresentations about Hakija Meholjic;

11 misrepresentations in regard to P84; misrepresentations about the Gotic

12 [phoen] incident; and misrepresentations about the accused's interview and

13 relying on witnesses' comments on mistranslated parts of the interview.

14 The Prosecution hasn't come clean on any of those matters and

15 said, "Yes, we regret, we apologise. Those were mistakes." And so, Your

16 Honours, the invitation remains to your Trial Chamber to infer that the

17 Prosecution indeed wishes you to rely on the misstated position in its

18 brief rather than the true position.

19 And let's see how they corrected the mistake, if it is a mistake,

20 about Naser Oric being in the cell with Mr. Kukic. This is what they said

21 at paragraph 362 of the Prosecution final brief: "Mr. Kukic's dead body

22 was returned to the cell and remained there until 10:00 a.m. the next

23 morning when Oric arrived and asked what had happened."

24 Now, Ms. Sellers said that that was simply -- simply a full stop

25 which wasn't inserted and that, actually, that should appear between the

1 word "morning" and "when." So it would be: "Mr. Kukic's dead body was

2 returned to the cell and remained there until 10 a.m. the next morning,"

3 full stop. "When Oric arrived and asked what happened." Well, I'm sorry,

4 that's not a sentence, and that's obviously not the explanation. And I

5 invite you to find that Ms. Sellers has not provided you with a candid

6 explanation about that misstatement of the evidence. It would have been

7 better if she simply said that they confused Kemo and Oric rather than

8 offering an explanation which is clearly untrue.

9 And so for that misstatement and the others, I invite you to

10 infer, and the Prosecution's lack of condor in admitting that these are

11 errors, even after we pointed them out and invited them to, that they wish

12 to mislead you on the evidence.

13 As far as other alleged visitors to the SUP and the building are

14 concerned, I would just add a couple of words. Zulfo Tursunovic, you'll

15 recall that the Prosecution's own evidence is that he was an independent

16 character who would do his own thing. As Meholjic said, who knew him and

17 the accused well and had many dealings with them both, "Zulfo was not

18 accountable to anyone." And that's 8th of April, 2005, T6948.

19 Not a single witness has testified that Tursunovic received orders

20 from the accused or that he reported to him. There is not one document in

21 which Tursunovic reports to the accused, nor has any evidence been given

22 that he reported to the accused orally. There is simply no evidence that

23 Zulfo Tursunovic was under the effective control of the accused at any

24 time.

25 Now when there is no evidence, the Prosecution just invites you to

1 assume that key facts have been proved. So it is with Hamed Salihovic.

2 At paragraph 92 of the Prosecution's response we read this: "Salihovic

3 necessarily reported the information derived from the prisoners to Oric."

4 Well, what does that mean, "necessarily reported"? Why has the

5 word "necessarily" been interinserted? Because there is no evidence that

6 he did so report. Not a single document has been tendered in evidence in

7 which Salihovic reported information derived from prisoners to the

8 accused. No witness testified that Salihovic reported to the accused.

9 You would think that that would bother the Prosecution, but not a bit of

10 it. They'll just tell you to assume that it happened. In fact, the

11 Prosecutor's own evidence shows that Salihovic ordered the military police

12 around in his capacity, it was assumed capacity, as president of the

13 subregion, president of the subregion War Presidency. And that's

14 Prosecution Exhibit P12 -- P212. So, in fact, the evidence tends to show

15 that Salihovic regarded the accused as his subordinate, as he was before

16 the war, rather than as his superior.

17 Now, Your Honours, I turn now to the issue of -- issues of

18 identification. The Prosecution knows how poor the alleged identification

19 evidence is in this case. So its approach is to tell Your Honour that you

20 needn't be too worried about the dangers of misidentification. This

21 despite all the remarks made by the Appeals Chamber in Kupreskic about the

22 need for extreme caution as well as in the recent Limaj judgement. The

23 Prosecution would lead you straight into the very errors about which

24 these Chambers have cautioned. Now, Ms. Richardson, on Tuesday, said that

25 we had erroneously relied on the dicta in Kupreskic and on the Turnbull

1 guidelines. This is an astonishing remark. Those cases set up guidelines,

2 essential guidelines as to how to approach identification evidence. There

3 is no question of relying on them erroneously. Identification is in issue

4 in this case so the guidelines apply. And the questions posed in Turnbull

5 are terribly important. They are vital for the Trial Chamber to

6 consider. "How long did the witness have the accused under observation,

7 at what distance, in what light? Was the observation impeded in any way?

8 Had the witness ever seen the accused before? How long elapsed between

9 the original observation and the subsequent identification to the police?

10 Was there any material discrepancy between the description of the accused

11 given to the police when first seen by them and his actual appearance?

12 Every single one of those questions is vital for Your Honours to

13 consider in relation to the evidence of the detention witnesses. And in

14 fact, the identification evidence in this case, is in every respect of the

15 very worst kind when one considers the Turnbull guidelines. That's why

16 the Prosecution doesn't want you to consider them.

17 So Ms. Richardson sought to distinguish guideline cases on the

18 facts of those cases, which shows that she simply doesn't understand what

19 guideline cases are about. They are not about the facts of those cases.

20 They are cited for the guidelines. And listening to Ms. Richardson trying

21 to distinguish Turnbull and Kupreskic on their facts, you would think

22 there were at least three additional witnesses who testified here. I had

23 to check the Prosecution exhibits -- sorry, the Prosecution witness list

24 to make sure. I've established that Veselin Ceric was not a witness in

25 this case. He never gave evidence. He never testified. Yet that's what

1 she would have you believe, if you look in LiveNote Tuesday page 53, line

2 22, Mr. Sarac testified, page 52 line 8, she referred to witness

3 Mr. Sarac. "If Sarac had testified under oath, I would have had a lot to

4 put to him in cross-examination, for example whether he really is from

5 Srebrenica or from Podravanje, as Radic has testified."

6 "How he in fact claims to know the Accused from before the war

7 when the Accused was most of the time in Potocari and Belgrade, where they

8 met and how often. I would also ask him about the two untrue statement

9 that is Radic attributed to him on the video, P98. I would ask him about

10 what is edited out of that video as I asked Mr. Radic."

11 "And I would ask him when he had this conversation with Oric,"

12 about being hit by him when apparently the last time they saw each other

13 was when that very hitting took place. Sarac did not testify. He was not

14 a witness, nor was Dustana [phoen] a witness, as Ms. Richardson suggested.

15 No witness recognised the accused as someone they knew before the war.

16 The third witness who was not a witness was the accused. He never

17 testified and I simply refer you to what my colleague said and what we

18 said in our motion in our closing brief, about the probative value which

19 can be given to that deeply flawed piece of evidence which not even an

20 investigator authenticated or testified about in any way. No one came

21 forward to say that that was properly done, properly conducted. We were

22 not able to cross-examine an investigator about any of those matters.

23 So the Prosecution states that Defence "overemphasised the dangers

24 involved in relying on identification evidence". I find that profoundly

25 depressing as a remark because the Prosecution itself should be concerned

1 about convicting an innocent man based on shaky identification evidence.

2 Royal commissions were set up and guidelines issued and judicial

3 pronouncements made around the world exactly to counter that complacent

4 attitude which has led to so many miscarriages of justice, to so many

5 innocent people being wrongly convicted.

6 Now the issue of identification is dealt with at length in our

7 closing brief so I'll just reiterate the basic facts. First, we are

8 talking about few and fleeting alleged sightings of the accused 12 years

9 ago under the worst possible conditions for observation: In dark cells,

10 in winter, when there was no electricity, when the detainees were confused

11 and disorientated.

12 Prosecution witnesses said how during daylight hours there was not

13 enough light in the cells to recognise an individual's details. The

14 Prosecution has not conducted a single identification parade or

15 identification procedure to check whether the alleged identification

16 evidence is at all satisfactory or reliable. Now, that's a glaring

17 omission in a case which depends on identification evidence. And the

18 detention charges do depend on identification evidence to establish

19 inquiry notice.

20 As I say, none of the witnesses who testified about seeing the

21 accused knew him from before the war, so none of them recognised him as

22 someone they knew. Conversely, the accused receives extensive public

23 exposure on television and in newspapers in the former Yugoslavia. Many

24 witnesses said how they saw the accused on television and in photos since

25 the war. There is all the talk that can be expected in small Serb

1 communities about the accused and this trial. Your Honours will be well

2 aware of the dangers of suggestion created by these factors. And in that

3 regard, it's highly pertinent to point out that out of 12 detention

4 witnesses, 11 of them either did not testify at trial that they saw or

5 heard about Naser Oric when in detention or did not do so in their earlier

6 statements about events. Eleven out of 12 witnesses.

7 Now, is this simply a question of a few links in the Prosecution's

8 chain armour failing, or is it the whole fabric falling apart before Your

9 Honours' eyes? None of the witnesses were able to point to any

10 distinctive characteristics in alleged identifications of the accused.

11 What they pointed to characteristics, they were wrong. Of the five

12 witnesses who claimed to have seen Naser Oric in either the SUP or the

13 building, three, Radic, Zikic, and Mitrovic, describe him as being

14 clean-shaven or having no beard. Yet the incontrovertible evidence is the

15 accused wore a beard for the entire period.

16 Let's recall what Radic said about the poor lighting in the cells

17 in the SUP and the difficulties of observation. I have a slide which sets

18 that out.

19 "Question: You've told us that a lot of the time you were in the

20 prison that the cell was very dark; is that right?

21 "Answer: Yes, yes. At night, obviously, there was no

22 electricity, and even by day there was a small opening in the wall, some

23 sort of a window. 60 by 50 centimetres by was the size, and that was the

24 only opening for the light to come into the cell.

25 "Question: And this was September, October, so coming on for

1 winter. Is it right that the days were very short, so it was dark both in

2 the mornings -- early mornings and early evening?

3 "Answer: Yes.

4 "Question: So in fact it was very hard to see any real detail of

5 people's faces in the cell?

6 "Answer: It was difficult to see, that's one thing. Secondly,

7 there were no visible injuries on our faces."

8 And Your Honours know the significance of that.

9 "Question: So in fact when you looked out from your cell you were

10 looking into even greater darkness?

11 "Answer: Yes."

12 Now, is that evidence which the Turnbull guidelines don't address,

13 which can be safely ignored? No. It's absolutely critical for Your

14 Honours in deciding whether or not Radic was able to identify the accused.

15 And on top of all that, we have uncontested evidence from several

16 Prosecution witnesses, as well as Defence, that many people in Srebrenica

17 adopted the look of the accused during the relevant period, and that at

18 least one individual played on the resemblance to pretend to be him.

19 And incidentally, I would point out the Prosecution has confused

20 two different Mrkis in its response to our final brief and in its closing

21 speech and I submit that that will be obvious when you see the evidence of

22 Dr. Mujkanovic, that there were at least three Mrkis in Srebrenica. And

23 when you look at the evidence of Mr. Radic referring to Mrki as being

24 "very tall, over two metres, a big burly man" - that's T3519 - and

25 Stojanovic referring to him as, "He wasn't very tall." In our

1 submissions, it's a different Mrki altogether. It's not Hazim Mrki, who

2 Radic identifies with Kemo.

3 Then we have the "actual identifications" of the accused. Radic

4 said that the accused was 160, 70 -- sorry, 160 centimetres tall, with

5 blue eyes and no beard. The accused is 180 centimetres - that's a big

6 difference - has brown eyes and had a beard at the time. Now, how on

7 earth can the Prosecution claim that this is a satisfactory identification

8 on which you can safely rely to convict the accused? He mentions three

9 features, and they are all completely wrong.

10 Zikic also said the accused had no beard and could point to no

11 other physical characteristics.

12 You also recall, in relation to the visits by Naser Oric,

13 allegedly Naser Oric, described by Zikic and Radic that there was a total

14 mismatch in the visits in that Zikic does not describe any of the visits

15 described by Radic and Radic does not describe any of the visits in

16 conversations described by Zikic. Something has gone wrong and at least

17 one of these witnesses is very confused. Your Honours will have to weigh

18 all these major discrepancies and not simply ignore them as the

19 Prosecution has done. Now, turning to the building, Ivanovic was very

20 clear that to this day he's not sure whether he ever laid eyes on the

21 accused in the reception room. He said that several times. He made an

22 assumption based on what some unknown person said to him.

23 Now, when Ms. Richardson summarised his evidence she completely

24 overlooked all the other exchanges which are set out in the next slide.

25 Question: "You didn't mention Naser Oric because you were never

1 sure. To this day you're not sure whether you ever saw him in the prison.

2 It's only an inference you made."

3 Answer: "I said that I could only assume during my captivity in

4 the cell behind the court building that was based on what I heard from the

5 soldiers but I did not know the man personally nor can I say that I

6 recognised him in the reception room."

7 "And today, sitting there where you are, you can't say for sure,

8 can you, whether you ever laid eyes on Naser Oric in the reception room in

9 the prison?"

10 Answer: "I've said this haven't I? I really didn't know him. I

11 confirmed a number of times that I didn't see him."

12 Now if he had recognised Naser Oric subsequently on television, he

13 wouldn't be saying anything like that. He would say I recognised him and

14 I know that that's the man I saw.

15 If we go to the next slide, I put to Mr. Ivanovic: "What we do

16 say is that Naser Oric was not in the reception room in the prison.

17 That's what my questions are concerned with. Do you understand that?"

18 Answer: I fully understand what you mean. As I have said, I

19 don't know him personally. I don't know if he was there. But I think

20 I've explained with sufficient clarity what my assumption was based on.

21 But I did say a number of times that I simply didn't know whether it was

22 him or not."

23 And this is where I clarified that the assumption was nothing to

24 do with images seen on television. It was based on what one identified

25 person said to him.

1 Question: "Yes, you're assumption was based on what the guards

2 said, correct?"

3 Answer: "Yes, precisely."

4 Go to the next slide. He said that, "nor do I want to necessarily

5 link this up," this is referring to an alleged identification "with any

6 images that I may have seen later on."

7 It's crystal clear what the assumption was. Ivanovic was in a

8 room he left he was in the room. He left. Someone said did you see Naser

9 or Delija [phoen] there? We don't know whether that person knew Naser

10 Oric or whether he even knew that he was in the room. Later on

11 television, he heard the name Naser or he saw a picture of someone

12 allegedly being Naser Oric and he assumed that that's the person. If

13 that's a safe basis for convicting the accused, if that's a safe

14 identification, then in my submission something has gone very wrong.

15 Ratko Nikolic who had seen the accused before his arrest, never

16 saw him in detention, never testified seeing him in detention. Now

17 Nikolic was in the reception room with Ivanovic when the accused was

18 allegedly present. The fact that he did not see the accused there when he

19 was seeing exactly what Ivanovic was seeing, it's solid proof that the

20 accused was simply not there.

21 And that is strengthened by the presence of C-07 -- I'm sorry, by

22 the evidence of C-07 who also never said that he heard anything of the

23 accused during his two months of detention. And then you have the women

24 whose evidence does not go to inquiry notice but simply to whether the

25 accused was ever in the prison. Not as to what he would have seen there.

1 Milenija Mitrovic, as we know, referred to hearing of a Naser Kolic

2 [phoen] who came into the cell and was clean shaven and Stana Stamenic

3 provided no physical description of someone who allegedly came into the

4 cell and introduced himself as Naser Oric.

5 Your Honours, that's essentially the sum total of the

6 identification evidence. The dangers are so obvious of relying on this

7 evidence to find that the accused was ever in the SUP or the building that

8 they do not need stating.

9 Now Your Honours the accused was not paying --

10 JUDGE AGIUS: I saw you looking at your watch. If you wish --

11 prefer to have a break earlier, you only have to say so. So tell us what

12 your preference is. You still have another 20 minutes before the break,

13 22 minutes.

14 MR. JONES: Yes, I'm obliged, Your Honour. I noted that I was

15 moving to a new section but since I have 20 minutes that's ample for this

16 section.

17 Your Honours, the accused was not paying regular visits to the SUP

18 or to the building because he had no reason to be there. It was not his

19 bailiwick. On the contrary, he had the most compelling reasons imaginable

20 to be else where, namely on the front lines preventing the Serbs from

21 breaking through and massacring everyone. And throughout this trial

22 whenever we have invoked the spectre of the 95 genocide it was only to

23 make this point, that what happened in July 1995 started happening in

24 April and May 1992 and, as my colleague said yesterday, it could have

25 happened at any time in 1992 or early 1993 if the Serbs took the town.

1 I want Your Honours to imagine yourself in the position of the

2 accused. You'll recall what Prosecution witness Colonel Tucker said of

3 his situation, the Accused's situation when he saw him in March 1993.

4 This is a different quote from the one to which my colleague referred

5 yesterday. I'm not sure if we have a slide on it. He said this: "The

6 people there, particularly the refugees, they believed they were going to

7 die. As I've described previously it was not a question of if, it was

8 only a question of when. Against this background, yes, there was this

9 hero, Naser Oric, but he had very few weapons. He had very few soldiers.

10 The Serbs had many weapons. The Serbs had many soldiers. They didn't

11 believe that he would actually be able to help them and defend them but

12 they believed that he was doing his best."

13 And this was a British Colonel, a Prosecution witness speaking

14 about the Accused with a realism and a compassion for his situation which

15 we have not once heard from the Prosecution during the whole course of

16 this trial.

17 "They believed that he was doing his best." This is a 27 year old

18 finding himself in a hellish world of the Serbs' creation, and I don't

19 know about Your Honours or the Prosecution but at 27 years old my

20 responsibilities were considerably more mundane, focused more on paying

21 off loans than saving hundreds of lives. Colonel Tucker had an eye for

22 military reality, however, as Your Honours will. And so I'd ask

23 Your Honours, when you deliberate, to try to imagine yourself there in

24 Srebrenica among the smells of the thousands of unwashed bodies of

25 refugees, passing by the pile of human limbs outside the war hospital.

1 Seeing as a daily sight, the maimed, the dead, the starving. Losing your

2 young friends every day in fighting the Serbs, and then imagine the

3 imploring looks of the thousands of refugees who rightly or wrongly see

4 you as their salvation. And they are counting on you as the thin wedge

5 between them and the murderous Serb forces and I use that term advisedly

6 because no one can look at Eastern Bosnia in that period and describe the

7 Serb forces as anything less than murderous. To save them from massacre,

8 from rapes, and from going to any place they could go from Srebrenica

9 underground. And I defy anyone to think of a more difficult situation and

10 a more compelling and urgent responsibility than doing everything in your

11 power to stop the Serbs breaking through and killing thousands of innocent

12 civilians.

13 You'll remember that that fear was not one held only by the

14 Bosniaks who had been at the receiving end of the Serbs' violence for

15 nearly a year. UN report also warned on the 20th of March 1993, "if free

16 passage with transport cannot be arranged for the refugees in the

17 Srebrenica pocket within the next 7 to 14 days, indications are that the

18 Serbs will carry out a genocidal cleansing of the entire enclave resulting

19 in the potential death of up to 80.000 human beings." That's 20 of March

20 1993 and that's the day before the exchange of C 07. Madam Abata [phoen]

21 of the UNHCR, a responsible high-ranking official, made similar dire

22 predictions to the United Nations, and issued grave warnings about the

23 imminent fate of Srebrenica. Dr. Mardel, a serious and committed WHO

24 doctor, shared these concerns. So did Tony Birtley, so did Colonel

25 Dudley. So did everyone who saw the situation, and that was why it was

1 made into a safe area although that too in the end failed to save the

2 people of Srebrenica. So as Colonel Tucker said, Oric had a job to

3 do: "He had far more dangerous and worrisome issues on his mind than -- I

4 do not wish to sound callous but [unintelligible] prisoners. There was

5 much, much more on his mind than prisoners."

6 Now, Naser Oric had a job to do in March 1993 when the most

7 ferocious Serb offence such was under way and during which

8 he himself was severely injured in the Achilles tendon as documentary

9 evidence and the evidence of Meholjic plainly shows. And he had to job to

10 do before that, throughout 1992, when the Serbs were daily attacking

11 Potocari. That was the accused's area. It was where the hardest fighting

12 was occurring and where he was needed the most. And that's where he was,

13 not visiting the SUP every day in late September to mid-October, as the

14 Prosecution contends, or as their witness Mr. Zikic contends.

15 The law on command responsibility and the case law of this

16 Tribunal recognises the vital importance of what was going on in the

17 theatre of war at the relevant time. Your Honours will recognise that

18 the accused was needed at the front lines in 1992 and 1993, that it was a

19 life-or-death struggle not just for him but for the thousands in

20 Srebrenica, and that the responsibility for the prison and prisoners fell

21 on the shoulders of the civilian authorities in the town. And it's worth

22 remembering that's where the detention facilities were, in the town, the

23 SUP, the civilian police building, and the building which was located

24 right behind the seat of the War Presidency. What happened in the town of

25 Srebrenica was the War Presidency's responsibility. It had responsibility

1 for law and order, and people like Bogilovic, Nurif Jusufovic, Mirzet

2 Halilovic, Hajrudin Avdic, were all in the town, in the municipality

3 building; they were not at the front lines apart from Mirzet Halilovic

4 when he was removed from his post and then had to go to the front lines

5 and indeed was killed in Skelani. It was Nurif Jusufovic, the civilian

6 police chief, who dealt with detainees, who with Zele, the one-armed

7 civilian policeman, that took young Branko -- my apologies, it was Zele

8 who took young Branko Mitrovic from the SUP, and Avdic, ultimately, the

9 president of the War Presidency, who were responsible for Serb detainees,

10 and as documents show, and was shown by them refurbishing the building,

11 the second location, and getting blankets for the detainees. That's a

12 very direct, immediate, tangible piece of evidence that you can see in

13 that regard, that actually Avdic and these others were involved in

14 refurbishing the very premises where the Serb detainees were held.

15 Clearly, this was their responsibility and not that of the accused. Your

16 Honours, in the chaotic and improvised situation such as existed in

17 Srebrenica, to determine effective control, not what is on paper but

18 effective control, it's essential to have witness testimony regarding who

19 reported to whom, and who controlled whom. Now, not a single witness said

20 that Mirzet Halilovic delivered reports from the military police to the

21 accused. On the contrary, Prosecution witnesses Meholjic and Bogilovic,

22 and Defence witnesses Sacirovic and Djilovic, testified clearly,

23 categorically, unambiguously, and on the basis of firsthand experience,

24 that Halilovic reported to Bogilovic and to Avdic. They saw him bring his

25 reports. And that's the only concrete evidence that you have on this

1 matter. They and Prosecution witnesses testified that Halilovic was

2 appointed by the War Presidency and dismissed by the War Presidency, not

3 by the accused. At least, at the very least, all of this raises a

4 reasonable doubt that the accused had effective control over the military

5 police. In fact, it does not merely raise a reasonable doubt; the true

6 picture is very clear: Oric and the fighters were fighting on the front

7 lines while the War Presidency ran the town through the civilian police,

8 in which the so-called military police were incorporated.

9 These police forces were based in the SUP, where prisoners were

10 held, and which later spilled over into the building behind the municipal

11 building. This is a picture which has not only been confirmed; it makes

12 sense; if fits the facts best. Now, you'll recall Becir Bogilovic and his

13 demeanour before this Court. Your Honour had to warn him several times

14 not to be evasive. This is the man whom Sead Bekric testified shot a hat

15 off his head, risking killing him, simply because it was a policeman's

16 hat. He was the boss of Mirzet Halilovic, and he in turn reported to the

17 War Presidency.

18 Now, Your Honours, unlike the Prosecution, we don't pretend that

19 the documentary and oral evidence is a seamless fabric which shows only

20 one picture, the picture we have presented. In Srebrenica, there was

21 chaos, then attempts to restore order, and then final chaos before the

22 descent into the abyss. People tried to unite, they tried to create

23 institutions, they tried to impose control where there was anarchy. And

24 it's only natural that they tried. People were confused as to who should

25 do what and who had what power. And as Prosecution witness Mujkanovic

1 said - I believe we have a slide - "During the Srebrenica disaster or the

2 downfall of Srebrenica in 1992 and 1993, neither the civilian bodies nor

3 the military bodies were ever organised in a way that was prescribed by

4 law. You did not know who was superior or who was subordinate to whom or

5 what fell under the jurisdiction of the civilian bodies and of the army

6 respectively. This was a scene of total chaos, where no one knew who they

7 were responsible to and for what. It was unclear who was making the

8 appointments, or who was being appointed, for that matter."

9 Now, confusion as to the chain of command, particularly in

10 relation to the military police, negates the concept of effective control,

11 as Prosecution witness Hogic confirmed on the 12th of May 2005, at T8172

12 to T8174. If the military police even had two commands, the War

13 Presidency and the staff, it could not function as a competent and

14 responsible body according to the applicable rules and regulations. Now,

15 in light of that, when Your Honours weigh two possible explanations of an

16 event, applying, as it were, the scales of justice, we know that you'll

17 place a gold ingot on the side of the accused, representing the

18 presumption of innocence, because the scales of justice are not level.

19 They are tipped in favour of the accused. And it's the genius of an

20 enlightened criminal justice system that the accused is not presumed

21 guilty, he does not have to prove beyond a reasonable doubt his innocence,

22 and he does not have to endure trial by fire or water before he can be

23 acquitted. It suffices that the Prosecution have not proved their case,

24 and the Prosecution have not proved their case here in relation to any of

25 the charges.

1 Now, the matter is in Your Honours' hands, and you bear the

2 fateful responsibility for deciding such important issues without fear or

3 favour of the consequences or of how your judgement will be perceived one

4 way or the other. As Your Honour said at one stage in this trial, you're

5 not here to give out medals. Nor are you here to convict a person simply

6 to appease others or to comfort the sense of victimhood on the part of

7 certain individuals. And you will recall even that those individuals did

8 not ask for justice to be done by treating the commander as a sacrificial

9 lamb. As Mr. Radic, a man who suffered a great deal, said,"I would never

10 have Mr. Naser Oric convicted if it were up to me. If it were up to me, I

11 would set him free right now, and I would dearly like to see Kemo in

12 Mr. Naser Oric's place. I was never for anything like that including

13 Naser Oric. Naser Oric never caused me any harm."

14 Yet Kemo walks free, untouched by any of this, as far as we know,

15 not even and interviewed, as far as we can tell, and the Prosecution

16 requests 18 years' imprisonment for Naser Oric on behalf of victims who

17 would never ask for such punishment in their name.

18 Now, Your Honour, I'm going to turn to some remarks on sentencing

19 and so this would be an appropriate time for the pause.

20 JUDGE AGIUS: Right. Before you do so, or before we have the

21 break, for tomorrow please take note of the following, particularly the

22 Prosecution. We still have some unfinished symphonies to deal with. One

23 relates to Prosecution Exhibit P570, in relation to the 32 pages that I

24 had suggested to you that you consider removing so that you avoid the

25 problem that had been raised by the Defence. You haven't come back to us

1 as yet.

2 The other is in relation to Defence Exhibit D690. On the 10th of

3 March of this year, upon the suggestion from the Defence of removing

4 indicated pages from the book as Exhibit 691, restricting it only to the

5 pages that were used with witnesses, you said, "I would just ask that I am

6 going to consult with my colleagues in the very beginning of next week.

7 The position right now that we would voice is we would want the other

8 pages to remain in, but if we can reach another decision, we will

9 certainly convey it to the Defence and to the Trial Chamber." We have not

10 heard from you or from the Defence on this.

11 I am informed, as in relation to P599, that a new translation has

12 been provided, which I haven't seen. I think the translation was provided

13 today. So if you have any comment on that, please come forward by not

14 later than tomorrow. Then there is the Philipp von Recklinghausen Rule 92

15 bis statement. I found out that, for unknown reasons, we failed to give

16 it an exhibit number. So I'm giving it an exhibit number, being D1024.

17 All right. I think that's all I needed to tell you.

18 In relation to P84.1 and P598.1, I think I have already made it

19 clear that, for the time being, they are entered into the records, but, of

20 course, we will decide whether they will stay or not in the course of the

21 deliberations. But the other initial matters, please try to address at

22 some point in time tomorrow. All right? Thank you. We'll have a --

23 Mr. Jones, I see that you have advanced considerably, and that you have

24 only got sentencing left.

25 MR. JONES: Yes, indeed.

1 JUDGE AGIUS: So do you require 25 minutes or 30 minutes?

2 MR. JONES: 30 minutes would be ample, thank you, Your Honour.

3 JUDGE AGIUS: Thank you. All right. 30 minutes.

4 --- Recess taken at 12.28 p.m.

5 --- On resuming at 1.01 p.m.

6 JUDGE AGIUS: Mr. Jones.

7 MR. JONES: Thank you, Your Honour.

8 Your Honour, the Prosecution did not state publicly at any time

9 during its closing speech the sentence that they had requested for Naser

10 Oric. So I've had to do it for them. The Prosecutor of this Tribunal,

11 Carla Del Ponte requested 18 years imprisonment for our client. 18

12 years. Despite all the evidence of the appalling situation in Srebrenica,

13 all of what Prosecution witnesses have said about the terrible

14 responsibility that Naser Oric bore, even the sympathetic noises made by

15 the investigators during the suspect interview about the difficulties

16 faced by the accused, when it comes to sentencing, all that is forgotten.

17 The Prosecution has apparently not a single shred of human

18 sympathy for the accused's predicament in that period.

19 In the final brief of the Prosecution, there is not one line, not

20 an ounce of recognition, of anything which the Prosecution considers

21 mitigating, just a cold-hearted demand for the most Draconian sentence. I

22 trust that the world -- the world -- will judge the credibility of this

23 Prosecutor, Ms. Carla Del Ponte, on this record, for asking for such a

24 sentence in a case based on the facts and the evidence that we've all

25 seen. Is this the face of compassionate criminal justice, the better

1 hope -- sorry, the hope for a better future, for peace and reconciliation

2 for the world, or is it a face in which the light of human kindness and

3 empathy does not flicker, an organ wielding its enormous prosecutorial

4 powers without a corresponding sense of responsibility? History will be

5 the judge of that. The Prosecutor's recommendation of a sentence of 18

6 years bears no relation to justice or sentencing practice. The

7 Prosecution wishes to punish the accused vindictively and cruelly simply

8 for maintaining his innocence and for mounting a vigorous defence.

9 This is a Prosecutor who recommended that Miroslav Deronjic

10 receive ten years for a crime against humanity, for a crime against

11 humanity in Glogova, in Bratunac municipality, in which more than 65

12 people were murdered and the whole village burned, including the mosque.

13 And incidentally if you consult the indictment, you'll see Najdan

14 Mladjenovic, whom my colleague mentioned yesterday, appearing in that

15 indictment as a perpetrator of mass killings. It's yet again a reflection

16 of this warped world in which we appear to live in this case in which the

17 victims become -- the perpetrators become the victims. In fact, the

18 burning of that village, that Muslim village of Glogova, is now blamed on

19 the Accused in what's perhaps the ultimate irony. You'll see that on the

20 slide, the Prosecution's final brief, page 300, Naser Oric is now accused

21 of burning Glogova, a village burnt by Miroslav Deronjic or on his orders.

22 Now, we are not saying that Deronjic deserved more or less than

23 ten years' imprisonment. That's not a matter for us. But according to

24 the Prosecution Deronjic was responsible for the murders of tens of

25 people, and yet the Prosecution asked only for ten years. In this case,

1 the Accused is charged with six murders and cruel treatment and wanton

2 destruction. One would understand from this that Serb property is more

3 important than Muslim lives. If the Prosecution's sentencing policy were

4 based on a concern for victims, you would never see such a disparity. Or

5 is the Prosecution more concerned with securing cooperation than with the

6 suffering of victims? The Prosecution will respond that in cases like

7 Deronjic, the Accused cooperated. Some defendants no doubt have a

8 stronger incentive than others to cut deals to try and reduce their

9 sentence. It is not the most principled reason for leniency.

10 But even so, in most jurisdictions a guilty plea and cooperation

11 will reduce a sentence somewhat, but not to such an absurd disparity where

12 the Prosecution considers that this accused deserves nearly twice the

13 imprisonment that they recommended for Miroslav Deronjic. Moreover, as we

14 pointed out in our response to the Prosecution's final brief, the factual

15 basis for the Prosecution's recommendation is full of completely untrue

16 statements. I would point something out to Your Honour which is that we

17 pointed out these misstatements in the final brief on which the

18 Prosecution based their recommendation.

19 Now, did the Prosecution look at the position and consider and

20 realise that they had got that wrong and then revise the sentence they

21 requested as, of course, one would expect them to do when they see that

22 their basis was mistaken? No, the sentence remains the same. What can

23 one conclude from that? Well, that in fact the sentence which the

24 Prosecution requests isn't based on cooperation or non-cooperation. It's

25 not based on facts or evidence. It's simply a retributive -- a demand for

1 retribution for an accused, as I say, simply maintaining his innocence.

2 The Prosecution falsely states that the accused "has not cooperated with

3 the Prosecution at any stage of the proceedings." Yet the Accused's

4 interview at length by the Prosecution was interviewed at length by the

5 Prosecution and volunteered to surrender if indicted which the Prosecution

6 denied him the opportunity to do. And during the suspect interview,

7 provided samples of his signature and we agreed the evidence of Tedder and

8 Kelly [phoen], P380 and P382, which enabled forensics to go ahead. The

9 Prosecution falsely states that the accused "has not conceded one aspect

10 of the case. He has not agreed to any evidence."

11 As I say we agreed the evidence of Tedder and Kelly. We conceded

12 43 agreed facts. That's P562. Now, those following this case will

13 realise that there is nothing to be gained by any cooperation with the

14 Prosecution unless it ends in a guilty plea. The Prosecution will deny

15 that any cooperation was received even when it was. They will deny that

16 admissions were made so there is no point in making them. Their approach

17 will only discourage any form of cooperation. Throughout this case, we as

18 Defence counsel have done all we could to expedite the proceedings and to

19 cooperate with our professional colleagues. We have not been repaid in

20 kind. For the Prosecution it seems the only good accused is an accused

21 who pleads guilty and cooperates with their office. They would use the

22 sentencing power as an arbitrary instrument of retribution for those who

23 dare to proclaim their innocence and make life inconvenient for their

24 office. Your Honours must not be a party to this cynical practice. Worse

25 still is what this means for Srebrenica.

1 The Prosecution has suggested that the Defence witnesses from

2 Srebrenica should not be believed because they are involved in the events

3 there, they are victims of the events there. The Prosecution should then

4 immediately abandon all its Prosecutions of Serbs for the July 1995

5 genocide since it will have to rely on such inherently suspect witnesses.

6 Maybe the witnesses, when they learn of how poorly they are regarded by

7 this Prosecutor, will decide not to testify on behalf of the Prosecution

8 any way.

9 The Prosecution's case has been about a systematic rewriting of

10 the story of Srebrenica. So Srebrenica was betrayed in 1995, it is now

11 betrayed a second time by this Prosecution. We find in the Prosecution's

12 final brief sentences such as the following: "During the period May 1992

13 to February 1993, Muslim armed units engaged in various military

14 operations against the Army" -- capital A -- "of the Serbian Republic of

15 Bosnia-Herzegovina."

16 The picture is clear from that isn't it? For the Prosecution the

17 legitimate army and state was the Serbian Republic of Bosnia-Herzegovina

18 whose army was attacked by rogue Muslim units. One would never guess from

19 this that these Muslim units were loyal to the Republic of

20 Bosnia-Herzegovina, a state recognised by the United Nations and the

21 European Union.

22 And then the Prosecution characterises the conflict in

23 Bosnia-Herzegovina in this way: "In essence, the armed conflict involved

24 the most fundamental and salient issues in warfare, the mutually competing

25 interests of two states in securing their territorial integrity. Now it

1 is indeed sad that Slobodan Milosevic did not live to see these words

2 written by the Prosecution as he would find in them affirmation that

3 Serbia and Montenegro had an interest, a mutually competing interest to

4 annex territory of the neighbouring state in breach of the UN charter in

5 order to "secure its territorial integrity," and apparently this interest

6 is no worse than Bosnia-Herzegovina's interest in remaining an integral

7 state.

8 These and countless examples from this trial are symptomatic of

9 the moral equivalents that we warned would cast its shadow over the trial.

10 It need not have been this way. The Prosecution did not need to defend

11 Serbia and the Bosnian Serb army to maintain its case. And that it does

12 so, this is why I mention it, it's a potent warning that those who say

13 these trials are free of politics are not correct. A political agenda in

14 this trial does indeed -- excuse me, a political agenda does indeed hang

15 over this trial to lay the blame for the 1995 genocide at the doorstep of

16 the Muslims. And history will deliver its own verdict on that agenda.

17 Why do we insist on this point? Look at what the Prosecution says at the

18 end of its final brief: The accused "has attempted to provide an utterly

19 false picture," an utterly false picture, they say, "of the command

20 structure he presided over." And then they go on to say that therefore he

21 is deserving of a severe sentence.

22 Now it's no accident that that statement is placed right at the

23 end of the brief for maximum impact. But of all the statements in this

24 trial this is the most extraordinary. Let us first recall that the

25 accused never gave evidence so the presentation must therefore apply to

1 the testimony of Defence witnesses who came here and gave their evidence

2 under oath and not one of whom was challenged by the Prosecution as being

3 untruthful when he gave that evidence. The Prosecution called witness

4 after witness to testify, and those witnesses painted exactly the same

5 picture of events in Srebrenica as Defence witnesses did. Mujkanovic,

6 Meholjic, Bogilovic, Becirovic, Omerovic, Delic, their own international

7 witnesses testified to the same effect. So did Ambassador Arria, the

8 former ambassador of Venezuela who led a Security Council mission to

9 Srebrenica. So Drs. Mardell [phoen] and Dachy said honourably in

10 Srebrenica on the behalf of extremely eminent medical foundations. The

11 same picture was painted by US Colonel Rex Dudley an American army

12 officer, and Canadian Captain McDonald, a trained UN observer.

13 Tony Birtley who won awards for his coverage of events in

14 Srebrenica painted the same picture. Yet it follows from what the

15 Prosecution says here that all these witnesses should be brought back and

16 prosecuted for false testimony. They should be sentenced to stiff

17 sentences for presenting such a grievously false picture of events in

18 Srebrenica. The books of Fink and Hollingworth should be withdrawn from

19 bookstores since they are also so full of untruths.

20 It's nonsense, Your Honour. Those witnesses, Prosecution and

21 Defence, have told it like it was. So why is the Prosecution so full of

22 vitriol against the Accused? Well the answer is they could not bend him

23 to their will so they wish to crush him. You may be familiar with Rodin's

24 famous sculpture, the Burghers of Calais. Like the Burghers of Calais, a

25 Rodin sculpture, Naser Oric is to be punished severely simply for

1 resisting their will.

2 And why is the Prosecution so furious about the picture presented

3 of the chaos in Srebrenica and of the lack of structure in the armed

4 forces? Why is it such a heresy to tell the truth about Srebrenica?

5 Because the world failed Srebrenica, the UN, the Dutch, the west, everyone

6 who could have stepped in to save the people and did not, and the accused,

7 as a symbol of Srebrenica's resistance is an inconvenient reminder of that

8 fact. Which is what makes his conviction so convenient to so many. And,

9 Your Honours, I say all of this once more simply so that you banish all of

10 it from your minds and simply judge the accused on the facts because those

11 facts argue more eloquently for his acquittal than any speech of mine

12 could do. Thank you.

13 JUDGE AGIUS: I thank you, Mr. Jones.

14 I take it there is nothing else on the agenda today. Tomorrow we

15 will be sitting in the afternoon. I'll be sitting in the morning at 8.00

16 and later but then we'll meet in this case at 2.15.

17 And please try to address all the issues that I raised with you,

18 particularly Prosecution -- yes?

19 MS. SELLERS: Your Honour, I discussed with learned counsel during

20 the break, and we would both like to put forward if there are any issues

21 in particular that the Trial Chamber would have us both address tomorrow,

22 if you want to tell us those issues today or indicate what would be

23 specific areas, we would be more than willing to try and therefore tailor

24 more specific questions -- answers to your questions or inquiries.

25 [Trial Chamber confers]

1 JUDGE AGIUS: Judge Brydensholt is going to give you an

2 indication.

3 JUDGE BRYDENSHOLT: Well, even if I don't have the transcript so I

4 can't show the exact page, but I noticed that Ms. Richardson mentioned

5 that your submission is that it was the military police which guarded or

6 at least persons even if they were in civil clothes, guarded the prisoners

7 in both places. I would like you to explain on what ground you maintain

8 that.

9 And on the same line, I would ask the Defence to make it clear to

10 me whether your submission that it was the military police which guarded

11 the prisoners in both places, or it wasn't. It has not become quite clear

12 to me what your position is. Thank you.

13 JUDGE AGIUS: I thank you, Judge Brydensholt.

14 Judge Eser?

15 JUDGE ESER: Perhaps I may address one issue. But I have further

16 questions I would like to go over the transcript before I put them

17 tomorrow. At least there is one issue which has also been addressed by

18 the Defence. And it concerns the question of responsibility of soldier or

19 guards with regard to actions by civilians, opportunistic visitors as they

20 have been called, in the final brief of the Prosecution there are some

21 references to acts committed by civilians in paragraphs 234 and the

22 following, but if you go to the -- for instance to the villages, wanton

23 destruction and so on, most of the time, for instance, if you go to

24 paragraph 577, the Prosecution would only speak of the people who

25 demonstrate the following: "Soldiers under the command of the accused

1 unlawfully burned houses. There is no reference at all that civilians may

2 have done it. And the same is true with regard to the other villages.

3 For instance I think it's paragraph 504, 650, 698, 737, 744, that the

4 Prosecution would only speak of soldiers and not mention at all any aiding

5 and abetting to acts committed by civilians. So this is one point which I

6 would like to hear a little bit more.

7 JUDGE AGIUS: As far as I am concerned, I think more or less I

8 gave you some indications yesterday. I'll probably have a few more

9 questions, but I would like to go through my notes first. But they

10 shouldn't be that problematic to answer. One definitely relates to the

11 legal position in relation to the signatures examined by Professor Bilic,

12 that neither Dr. Kerzan nor Dr. Fagel or Dr. Koeijer examined, and I would

13 like to know your approach on this or your position on this, particularly

14 since the onus of proving the authenticity of the documents that you have

15 tendered will always rest with you, and the Defence have got no obligation

16 to prove that any of the documents that you have tendered is not

17 authentic. The Prosecution -- the Defence may embark on a task of

18 inserting in the proceedings an element of doubt, and whatever the Defence

19 tries to achieve by that can be achieved on a balance of probabilities'

20 basis. So at this point in time, forgetting for a moment your submission

21 that Professor Bilic is not reliable by -- independent of that submission

22 and without prejudice to it, what is the legal position that emerges from

23 the fact that there is a report by one of the experts, a Defence expert,

24 that throws doubt on a number of documents that have not been examined by

25 any other expert, neither yours nor ours. That's one of the aspects I

1 would like you to deal with tomorrow.

2 JUDGE ESER: Perhaps in addition to what I already indicated, in

3 the meantime I found out that the question of responsibility, command

4 responsibility, for aiding and abetting by subordinates with regard to

5 crimes committed by civilians, this issue was mentioned in the closing

6 arguments by Mr. Di Fazio. I think it was on pages 12 following, where he

7 speaks of soldiers aiding and abetting to crimes by civilians. Mrs.

8 Sellers with talk of military police and soldiers, and Ms. Richardson

9 would only speak of military police. So it should be clarified to what

10 persons command responsibility may be concerned with.

11 JUDGE AGIUS: And lastly, maybe one point that I would address to

12 you. I mean, for example, there are two documents, Defence -- sorry,

13 excuse me, Prosecution exhibits, falling in the category that you attack

14 as not having been put to any witness. I refer you to P253 and P443. It

15 seems to me that you make use of them yourselves in your final brief. So

16 what -- does that change anything from your previous submissions on this

17 category of documents? Also, you make ample use in your final brief of

18 P84, for example, while you attack it at the same time. And also, the

19 field, what you call, or meadow or diary or whatever, again you attack it

20 in more ways than one but you also make use of it, and you make use of

21 it -- when I say you, I might mean either of you, made use of it even in

22 the course of today. So -- and there are other documents from the Sokolac

23 collection that -- and other documents from Republika Srpska that you also

24 referred to and make use of, not just refer to in the Defence final brief.

25 I would like you to address that tomorrow.

1 MR. JONES: Yes. I followed that fully, Your Honour. I was going

2 to give a quick answer which is that often if it's a case if it's

3 authentic then other consequences follow but not that we're relying on the

4 document itself. But I can't have any more detailed answer.

5 May I mention two housekeeping matters for tomorrow?

6 JUDGE AGIUS: Yes, certainly.

7 MR. JONES: One is that since the Prosecution, of course, can

8 prepare for tomorrow in light of what we've been saying over the last two

9 days, we are not in a like position. So I've asked my learned friends if

10 they intend to rely on any legal authority tomorrow. If they could let us

11 know beforehand so that we are in a position to respond to that. That's

12 one matter.

13 The other matter is, I think we are all keen to finish, certainly

14 the parties and possibly the Bench as well, but to finish tomorrow if

15 possible and to the extent that we'd even be prepared to accept or to

16 impose on ourselves a sort of time limit so that we can be -- safely be

17 away. Part of that, I suppose, depends on how long Your Honours would

18 also like to allocate. But for our part we would be happy to say each

19 side has one hour or half an hour, but just so we can be sure that we

20 finish because some of us have travel plans. Not us. Not on this side, I

21 should say.

22 JUDGE AGIUS: Let's start with the Prosecution. Would one hour be

23 sufficient for you?

24 MS. SELLERS: Your Honour, I think that we would aim for one hour,

25 maximum. If it could be less we will certainly abide by the

1 less-than-one-hour timetable.

2 JUDGE AGIUS: But in that case, you wouldn't entrust the task to

3 Ms. Richardson.

4 MS. SELLERS: Your Honour, I can't divulge the Prosecutor's work

5 product on those issues.

6 JUDGE AGIUS: I think we better play it on the safe side. We'll

7 say one hour each. If you need less, then obviously you cut it short

8 without corresponding duty on the other side to cut it short too. So

9 let's say you have got a maximum of one hour each, with our indulgence

10 should you require more. But let's say one hour tomorrow.

11 MR. JONES: Yes, I think we would even be prepared to say that we

12 will take only as long as the Prosecution does so that it's not a

13 question --

14 JUDGE AGIUS: We can't force you.

15 MR. JONES: It's simply to indicate that we wouldn't be proposing

16 to prepare a one-hour presentation tomorrow. We will be responding to

17 what the Prosecution says and so we may be only five or ten minutes.

18 JUDGE AGIUS: All right.

19 MR. DI FAZIO: Just to make sure that things move smoothly

20 tomorrow, the Prosecution is in the process of preparing a spread sheet

21 that's going to show where some of the documents that we have used as

22 Prosecution exhibits come from. In other words, the collection they come

23 from. The various sources.

24 JUDGE AGIUS: I have done that exercise already myself so --

25 MR. DI FAZIO: Would you be served if we gave you that?

1 JUDGE AGIUS: No, of course, of course. First of all, I will find

2 out how many mistakes I have made.

3 MR. DI FAZIO: What I'll do is get it done and send it to the

4 Defence today and -- excuse me. That can be done. And we'll rely on

5 that, perhaps hand it up tomorrow and Your Honours can have that.

6 JUDGE AGIUS: Great. I thank you so much.

7 So, please God, tomorrow afternoon, 2.15, and we'll try to finish

8 the sitting as soon as possible. I thank you.

9 --- Whereupon the hearing adjourned at 1.29 p.m.,

10 to be reconvened on Friday, the 7th day of April

11 2006 at 2.15 p.m.

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