Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16482

1 Friday, 7 April 2006

2 [Closing statements]

3 [Open session]

4 --- Upon commencing at 2.24 p.m.

5 [The accused entered court]

6 JUDGE AGIUS: Madam Registrar, good afternoon. Could you call the

7 case, please?

8 THE REGISTRAR: Good afternoon, Your Honours. This is the case

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

10 JUDGE AGIUS: I thank you, Madam. And good afternoon to you.

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

12 THE ACCUSED: [Interpretation] Good afternoon, ladies and

13 gentlemen. Yes, I can follow the proceedings in my own language.

14 JUDGE AGIUS: Thank you. Good afternoon to you. You may sit

15 down.

16 Appearances for the Prosecution.

17 MS. SELLERS: Good afternoon, Your Honours. Good afternoon to

18 Defence counsel. I'm Patricia Sellers from the Office of the Prosecutor.

19 With me today is co-counsel, Gramsci di Fazio, Ms. Joanne Richardson, and

20 our case manager, Donnica Henry-Frijlink. I'm sorry for the pole there.

21 JUDGE AGIUS: Yes. I hope there is no one behind that.

22 MS. SELLERS: Not on my side.

23 JUDGE AGIUS: I had the Srebrenica Status Conference earlier this

24 week and I had two entire Defence teams obliterated by the column so I was

25 hearing voices but I couldn't distinguish where they were coming from. So

Page 16483

1 any way, we'll all get accustomed to this also with having the Defence

2 there and the Accused nearest to the Bench.

3 Appearances -- good afternoon to you, Ms. Sellers, therefore, and

4 to your team. Appearances for the Defence?

5 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours, my

6 name is vast individuals. Together with Mr. John Jones I appear for

7 Mr. Naser Oric. We have with o us our legal assistants, Ms. Adisa Mehic

8 and Ms. Jasmina Cosic, and our CaseMap manager, Mr. Geoff Roberts.

9 JUDGE AGIUS: Thank you so much, Madam, and good afternoon to you

10 and your team.

11 Any preliminaries? I understand you still want to exchange a

12 couple of blows before we adjourn for final judgement.

13 Yes, Ms. Sellers?

14 MS. SELLERS: Your Honour, I believe that a truce has certainly

15 been called in respect -- there are a couple of preliminaries from the

16 Prosecution. That goes back to just administrative things that

17 Your Honours have raised. I don't know whether you wanted to do that in

18 the beginning of the session or the end. They would be fairly brief from

19 the Prosecution's point.

20 JUDGE AGIUS: Well, if you still think that you would be brief in

21 your submissions, then we might as well dispose of them now.

22 MS. SELLERS: We certainly can, Your Honours. It will take about

23 three minutes.


25 MS. SELLERS: All right. I understand that Your Honours asked us

Page 16484

1 to about P84 and P598 and that we do not have to come back to you on that.


3 MS. SELLERS: And P598.1. Your Honour's question on P570 is that

4 we would like to have the other 32 pages in. If Your Honour notes, some

5 of the pages have X marks on them which indicated they are the back sheet

6 of a page that has writing on it that's pertinent to the case even though

7 we referred to other pages within the document. That would be our

8 position.

9 JUDGE AGIUS: So you insist on these 32 pages?

10 MS. SELLERS: Yes, Your Honour.

11 JUDGE AGIUS: All right.

12 MS. SELLERS: Your Honour, in terms of P599 we just want to place

13 on the record that the new translation was provided.

14 JUDGE AGIUS: Yes, delivered, yes.

15 MS. SELLERS: And, Your Honour, in terms of D690, I believe that

16 the Prosecution has an analogous exhibit regarding those materials and we

17 will stick by the exhibit that the Prosecution has already submitted.

18 I'll be able to furnish you that P number in a minute. Those would be the

19 submissions for administrative matters, Your Honour.


21 Any comments from your part, Mr. Jones?

22 MR. JONES: Yes, Your Honour. Firstly, just generally in terms of

23 today's hearing, we did want to note that there is the potential for

24 unfairness to the Defence in this way, that the Prosecution had its

25 closing arguments on Monday and Tuesday, and then we, of course, had our

Page 16485

1 arguments on Wednesday and Thursday. So, of course, the Prosecution has

2 had Wednesday and Thursday and this morning to prepare for their

3 submissions today. Whereas we, of course, will have to wait until the

4 very moment we hear their submissions before we respond.

5 JUDGE AGIUS: I can give you Monday, no problem.

6 MR. JONES: Thank you, Your Honour. And we make Your Honour up on

7 that. We certainly reserve our position so that we will have time, and I

8 know Your Honour made that perfectly clear all along that we wouldn't

9 suffer any prejudice. And it was really it in that spirit that we did

10 want to have cooperation with the Prosecution to ensure that we weren't

11 taken by surprise and hence the exchange regarding notification of legal

12 authorities, and Your Honours would have seen the e-mails and you will be

13 aware. In that respect in terms of the legal argument to be presented we

14 very much reserve you are position to see whether we are in a position

15 properly to respond today because, of course, we would do a disservice to

16 our client if we responded off the cuff.

17 JUDGE AGIUS: By all means, by all means. In fact, I was a little

18 bit taken aback when at a certain point in time during the day, I start

19 getting the first of a series of e-mails indicating the exchange of

20 correspondence that was taking place between you, because I had expected

21 this to take place more or less by the end of the day yesterday which

22 would have given you the whole -- the entire morning to prepare. In any

23 case, let's not try to create storm in a teacup. Maybe we can sort it all

24 out. At the end of the day, I myself don't know the substance of these

25 references. You probably know more than I because we have had more time

Page 16486

1 to look into these pages than we have because we've had other business to

2 transact. If we need to come back on Monday, by all means, Mr. Jones. I

3 mean we are at your disposal. I made this very clear from the very first

4 day.

5 MR. JONES: Thank you, Your Honour. I think what we'll do is

6 after we've heard everything the Prosecution has to say, if we could have

7 a break at that point and consider our position.

8 Just three other housekeeping matters. The second is, of course,

9 the Prosecution has produced a chart which we will be discussing today.

10 We also produced a chart to explain our position but my submission would

11 be that these should not become exhibits. I don't know if it will be

12 proposed, but at this stage, this late stage these would be, I understand,

13 as I understand for information only, otherwise --

14 JUDGE AGIUS: I hadn't intended to receive these as submissions.

15 MR. JONES: No, thank you, Your Honour.

16 JUDGE AGIUS: In fact, let me put it to you. We have been

17 working. I mean, we haven't been sleeping. And much of the work that is

18 shown on this document that the Prosecution has prepared we have already

19 worked upon ourselves before. And I would imagine the same thing applies

20 to what you will be presenting but I don't think we need exhibits,

21 aide-memoires or any kind of help from your side both of you will be very

22 much appreciated and we will use it to check with what we will be checking

23 ourselves in any case.

24 MR. JONES: Yes, thank you, Your Honour.

25 JUDGE AGIUS: I assure you we don't take anything for granted.

Page 16487

1 Not even the least reference in any of the final briefs. Each reference

2 is checked and re-checked and re-checked to make sure that we are being

3 given the right information by both of you.

4 MR. JONES: Indeed. I'm obliged to Your Honour for that. Just

5 two very short remarks on the exhibits which have been mentioned. P570,

6 we would object to -- to any new pages.

7 JUDGE AGIUS: It's on record already.

8 MR. JONES: Yes, I believe it is. But P598, Your Honour, our

9 understanding is that this is not P598.1, that it's not an exhibit at all.

10 JUDGE AGIUS: It's not yet, no.

11 MR. JONES: Then that's -- Your Honour, I say that for this

12 reason, that we didn't address P598.1 even in our closing submissions on

13 the principle that it is not even an exhibit.

14 JUDGE AGIUS: It's in the records but we promised you we'll decide

15 on whether it will come in the records as a substitute for 598 or not in

16 due course as we elaborate the judgement. That is part of the decision

17 that we will take.

18 MR. JONES: Because perhaps it's a matter which needs clarifying

19 because when you have this 1. Limitation, sometimes that signifies that

20 it's a subsequent version of an exhibit. We understand that since this is

21 not even this an exhibit, that we were under no obligation to address

22 submissions on P598.1. So we proceeded from the position that for P598,

23 for example, the name Kemal Mehmetovic is not on the first page at all.

24 His name does not appear on the first page of that exhibit. That's our

25 position. We never said, if his name is there then we would make this,

Page 16488

1 this and this points. Many points we could have made. We didn't because

2 we understood that was not an exhibit and we did contact your legal

3 officers last week, I believe it was, to see whether a decision had been

4 taken.

5 JUDGE AGIUS: No, no, no.

6 MR. JONES: That's our position.

7 JUDGE AGIUS: Obviously a decision hasn't been taken and we made

8 it very clear. Actually we had asked the Prosecution to more or less

9 decide whether they were going to rely on, for example, the first page

10 of -- or halve, the first half of the first page of 598.1 or not.

11 Because -- and the other page that was non-existent and still is non-exist

12 tent in 598 but which however is in 598.1 - I wouldn't remember the page

13 number - dealing with communications. And, of course, the fact that a

14 page which was in 598 has now gone missing in 598.1. So we just made it

15 clear we tried to approach these things in a legalistic way but also in a

16 pragmatic way. In other words, if Prosecution is not going to make use of

17 598.1 as regards the first half of page 1, the situation is much easier

18 for us. Unfortunately if you look at the Prosecution final brief, they

19 have referred to the first half page of 598.1. So ultimately we will have

20 to decide whether to discard that completely because there should not be a

21 598.1 with that or whether we should accept it and -- so that's the

22 position.

23 MR. JONES: Sorry. It's simply I just wanted to make it crystal

24 clear on the record that from our point of view we would be prejudiced if

25 598.1 were used as any part of the judgement.

Page 16489

1 JUDGE AGIUS: That's your contention. It stands to be seen if at

2 all when the time comes.

3 MR. JONES: Thank you, Your Honour.

4 JUDGE AGIUS: Any further remarks?

5 None?

6 I thank you. So Ms. Sellers, before I give you the floor because

7 the documents I had before I came in, I seem to have completely --

8 completely mislaid. No, they are here. Okay.

9 All right. Ms. Sellers, take your time. We are at your disposal

10 until 7.00 this evening, if that pleases you.

11 MS. SELLERS: Your Honour, thank you. I believe I'll take much

12 less time than that.

13 JUDGE AGIUS: It will be our pleasure.

14 MS. SELLERS: The Prosecution would now take the opportunity to

15 reply to the Defence closing arguments.

16 We would like to reply in the following manner. I will speak

17 first about several legal issues that have been raised by the Defence.

18 Then Mr. Gramsci di Fazio will address you on issues pertaining to

19 documents, including some of the questions that Your Honours have asked us

20 to address. Mr. Di Fazio will also speak to you about sentencing in reply

21 to what was raised. I understand the sentencing part will probably go

22 first and then Ms. Richardson will respond to questions that Your Honours

23 have put before us and I will conclude with one or two other legal points,

24 and then just a very brief conclusion.

25 Again we thank you for this opportunity. We look at our

Page 16490

1 submissions as a reply. The first issue that the Defence raised that the

2 Prosecution would like to address quite briefly is the notion of levee en

3 masse. The Defence appears to continue to characterise what happened in

4 terms of the armed forces of Srebrenica throughout 1992, 1993, and if the

5 Prosecution has understood, even after March of 1993, as a levee en masse.

6 The Prosecution merely states that the definition of levee en

7 masse that the Defence advanced is the correct definition. It does not

8 apply to the factual situation in Srebrenica. The Prosecution's point has

9 been that since the 20th of May 1992, at the Bajramovici meeting when

10 organisation and in particular when command structures were set forth,

11 that any characterisation of a levee en masse dissipated.

12 The Prosecution reiterates the points that were brought up but

13 would like to draw the Trial Chamber's attention to the accepted fact or

14 stipulated fact that the Defence referred to. They said that they had 40

15 accepted or stipulated facts within this trial. One of those facts is

16 that Naser Oric was appointed the command ore of the joint armed forces of

17 the subregion Srebrenica in early November 1992. That comes directly out

18 of the indictment and the Defence is correct, that is one of the points

19 that they have stipulated to. By their very own admission of that fact, a

20 levee en masse, in the very least, stopped on November 1992 because

21 command was accepted. Your Honour in the real world, even in the real

22 world of Srebrenica, command was structured and accepted much earlier, and

23 forces started to organise. Levee en masse is inapplicable to our

24 situation and the only reason that the Defence would want to continue to

25 have a levee en masse characterisation is that it goes to questions of the

Page 16491

1 organisation of the forces, the superior responsibility of Mr. Oric and,

2 hence, his responsibility for subordinates.

3 Next I would just like to address the issue of command

4 responsibility. The Defence gave us a definition of command

5 responsibility yesterday that --

6 [Technical difficulty]

7 JUDGE AGIUS: Go ahead. Let's see if it works now.

8 MS. SELLERS: The Defence gave us a definition of command

9 responsibility that the Prosecution would say is not the definition or the

10 elements that this Tribunal recognises. The Defence argued or advanced to

11 Your Honours that command responsibility entails four elements, that there

12 exist a spear-subordinate relationship, that the accused knew or had

13 reason to know that his subordinates were about to commit crimes or had

14 done so, the accused failed to take the necessary and reasonable measures

15 to prevent or punish, and then the Defence added a fourth element: The

16 accused's negligence was so serious as to amount to malicious intent.

17 Your Honours, that is not the jurisprudence of this Tribunal. The

18 Defence stated to Your Honours what is a misconstruction of the elements

19 here. That misconstruction will mislead you in your judgement.

20 Negligence so serious as to amount to malicious intent was considered by

21 this Tribunal in the very early days and discarded. Negligence so serious

22 to arise to malicious intent relates to not the standard that we

23 recognise, that the accused knew or had reason to know, but a standard

24 that had been debated within the formulation of additional protocol 1 and

25 the commentaries that speak to it. It relates to the should-have-known

Page 16492

1 standard. The should-have-known standard that I believe that the Defence

2 cited or thought of erroneously as being or had reason to know standard is

3 a standard that does and could possibly lead to strict liability, exactly

4 the concerns that the Defence raised. This Tribunal from the Celebici

5 appeals decision to the Blaskic appeals decision has set forth the

6 elements of knew or had reason to know. As a matter of fact, it's a

7 higher standard, Your Honours, and it's a standard that the Prosecution

8 has met in this case against Naser Oric. Naser Oric knew and certainly

9 had reason to know, of the burning, the killings, the murders, and the

10 mistreatment of prisoners. Article 7(3) is not a liability based upon

11 negligence under our jurisprudence. The Prosecution would just ask Your

12 Honours not to be misled and to apply the elements that have been

13 recognised both in Celebici and Blaskic appeals decisions.

14 The Prosecution would now just briefly go back to Article 7(3),

15 and aiding and abetting within the contents of Article 7(3). Now the

16 Defence would have us dance with the Prince of Wales eventually, but Your

17 Honours it's a very clear matter of understanding the word "commit" and

18 understanding the responsibility of a superior. A superior is not allowed

19 to walk away and said my subordinates, they only aided and abetted, my

20 goodness, I think they only instigated. I think there has probably been a

21 little bit of conspiracy but no commission of a crime.

22 A policy, the underriding policy of humanitarian law is that

23 superiors who know or had reason to know, are responsible if they failed

24 to prevent or failed to punish the crimes. Now, the Defence had a very

25 nice triangle where they tried to show that the superior would have to be

Page 16493

1 over the opportunistic perpetrators and the superior would have to be over

2 the subordinates. Well, Your Honours, I would ask you not to look at the

3 triangle but it's actually an L. The superior is over the subordinates

4 under effective control. Whether those subordinates commit or whether the

5 bottom half of the L reaches out and they in some other manner assist,

6 facilitate, the other perpetrator. I would not want the Defence to

7 neither misconstrue, misstate or mislead Your Honours on that point.

8 The Prosecution has made it very clear that the acts, the criminal

9 acts, that have occurred in Srebrenica in 1992 and 1993 for which Naser

10 Oric has been charged at times were committed by his subordinates, at

11 times his subordinates aided and abetted others, such as in the first

12 prison scenario, such as in the second prison scenario and also in the

13 villages Fakovici, Bjelovac and Kravica in particular. Your Honour, our

14 7(3) position as it relates to aiding and abetting is a fallback position.

15 It's a position that says that the soldiers indeed did commit burning.

16 Naser Oric's subordinates indeed did commit the mistreatment and the

17 killings in the prison and if Your Honours also see that they aided and

18 abetted, facilitated either before or after, that this liability, indirect

19 responsibility, inures to Naser Oric.

20 Your Honours have asked a specific question in terms of the facts

21 related to aiding and abetting. In Rakovici we have stated that soldiers

22 have burned, as we did in Jezestica. The Defence has put forward the

23 theories that there were civilians and, of course, the Prosecution has

24 never said that the civilians themselves were subordinate to Naser Oric.

25 That is not our evidence. That's not our theory, that is not our case.

Page 16494

1 But whether those subordinates in particular those soldiers from the

2 different units, do aid and abet those civilians, the L reverts back up to

3 Naser Oric.

4 JUDGE AGIUS: If I may interrupt you here, this precisely is one

5 of the things that I meant to ask you today. According to your thesis,

6 your case, how did the -- the ones you consider to be Naser Oric's

7 subordinates aid and abet the civilians who may have burnt down or

8 destroyed property?

9 MS. SELLERS: Your Honour --

10 JUDGE AGIUS: What are you basing it upon?

11 MS. SELLERS: Your Honour we are basing it upon the facts that

12 Naser Oric would go in, and it's not the attack itself, it's the wanton

13 destruction that's committed by allowing the civilians to go in, to burn

14 after they've cleaned out an area, encouraging the burning, under aiding

15 and abetting. In addition to the burning together, Mr. Di Fazio has

16 reminded me. Under aiding and abetting --

17 JUDGE AGIUS: As regards the presence of Naser Oric or the alleged

18 presence of Naser Oric, just, I can understand. What I'm referring to is

19 the soldiers because Naser Oric, at least from what I could gather, you

20 don't have evidence to prove that in each and every one of the attacks,

21 Naser Oric was present.

22 MS. SELLERS: No, Your Honour. We haven't alleged that either.

23 JUDGE AGIUS: So basically I think you need to draw the

24 distinction first of all. So if we speak only of the -- what you consider

25 to be subordinates of Naser Oric, within a context of aiding and abet, if

Page 16495

1 you do consider then -- how do you configure this.

2 MS. SELLERS: Your Honour, we configure this in the following

3 manner. The presence of the soldiers is not a mere presence. It's a

4 substantial contribution, that they are allowing the civilians to carry

5 out the destruction, whether it's the setting of fire. Their presence as

6 soldiers after having taken it is an encouraging presence. In addition to

7 that when they are participating in other forms of wanton destruction

8 while civilians are burning, that also is an encouraging presence, a

9 substantial contribution.

10 JUDGE AGIUS: All right. And if Oric wasn't there on any one of

11 these occasions, how is he supposed to have known?

12 MS. SELLERS: How was he supposed to have known?

13 JUDGE AGIUS: Yes, based on the evidence.

14 MS. SELLERS: Your Honour, know -- know that his subordinates

15 aided and abetted the civilians? Your Honour, I think that when one is

16 even back in command headquarters, and understands that the villages that

17 is attacked has been wantonly destroyed or burnt down that is inquiry

18 notice. He does return to villages that have been destroyed. And that's

19 the inquiry notice that in the very least would say, something has gone on

20 beyond going for the military object within the attack.

21 JUDGE AGIUS: All right. Yes. Sorry for interrupting you.

22 Please go ahead.

23 MS. SELLERS: So, Your Honours, in conclusion, our 7(3) case as it

24 relates to subordinates of Naser Oric for attacks and for the guards

25 within the prison, does not consider that Naser Oric is a superior over

Page 16496

1 the civilians. I would like to also correct that the Defence had the

2 mistaken impression that the Prosecution was somehow forwarding a 7(1)

3 aiding and abetting theory in relation to the prisons. That is not at all

4 our Prosecution case nor theory. I wanted to state that on the record,

5 Your Honour.

6 Your Honour, at this time, I'm going to ask Mr. Gramsci di Fazio

7 to make his submissions and then I'll return to you at the end of the

8 presentation.

9 JUDGE AGIUS: One further question, Ms. Sellers, before we close

10 on this. Yesterday, one of the submissions by the Defence in relation to

11 aiding and abetting is that acceptance so far as it is indicated in count

12 5, if I remember well, that in relation to Oric's presence and aiding and

13 abetting that where it is not specifically pleaded in the indictment, it

14 should not be a valid argument now in an oblique fashion. In other words,

15 he was not there, but he had inquiry notice just the same or he must have

16 had inquiry notice. The subordinates even when they did not commit any

17 crimes themselves did, however, they are responsible for aiding and

18 abetting. Therefore Oric is also answerable for aiding and abetting or

19 for 7(3) responsibility. This is the question that I have: Where do you

20 see it pleaded in counts 1, 2 and 3?

21 MS. SELLERS: Your Honour, in counts 1 and 2 that pertain to the

22 murder and the cruel treatment the Defence has been put on notice ever

23 since our indictment. We speak about guards and others coming into the

24 prison to beat. We have also included in our pre-trial brief it's the

25 same factual description that they have been put on notice. The evidence

Page 16497

1 came out at trial. The evidence came out at trial, in particular in the

2 first prison scenario, that others came into the jail, the turnkey opened

3 the door, Cude opened the door several times with the Mrki and Kemo. We

4 also pleaded it within our closing brief. Now they're factual pleadings

5 but within the factual pleadings we believe the Defence has been placed on

6 sufficient notice that their subordinates of Naser Oric aided and abetted

7 other wise facilitated the crimes of others. At times of other

8 subordinates. But also civilians.

9 JUDGE AGIUS: I will not pursue this matter from this point

10 onwards because obviously it becomes tricky but I wish the Defence to

11 address this point a little bit further in your response either now or

12 later.

13 MR. JONES: Your Honour, I must say I'm deeply confused now and I

14 would appreciate clarification from the Prosecution. Are they saying

15 that our client is responsible for others who came from outside the

16 prison or not? They are completely unclear on that point.

17 JUDGE AGIUS: The purpose of my question very simply put is the

18 following, Mr. Jones: That one of the basic principles of due process and

19 of a fair trial is that the accused must know before the trial starts what

20 he is supposed to -- what charges he's supposed to answer. There is no

21 point in saying that at some point in time in the course of the trial,

22 new, fresh charge or accusation comes to light, and therefore he's given

23 due notice of it, therefore he's answerable, therefore he has

24 sufficient -- it has been sufficiently plead, therefore it forms part of

25 the indictment even if it's -- does not show up in the indictment.

Page 16498

1 What I have asked you is, basing yourself on the submissions made

2 by Mr. Jones or Ms. Vidovic I don't know who, yesterday or the day before,

3 where in the indictment do you see aiding and abetting being attributed as

4 a charge, as a liability, vis-a-vis Mr. Oric in counts 1, 2 and 3? Not in

5 count 5 because in count 5 it's clear enough. In counts 1, 2, and 3. I'm

6 not contesting you anything. Don't misunderstand us. When we put

7 questions it's not because we are --

8 MS. SELLERS: It's on the record, Your Honour --

9 JUDGE AGIUS: It's not because we already have a -- that we have

10 decided or anything but these are obviously some legal questions of some

11 interest to us and, I mean, when the matter was raised yesterday, it

12 needed to be, of course, dealt with -- yes, do you want to put a question?

13 Judge Eser.

14 JUDGE ESER: May I just make a remark with regard to

15 clarification? I think it is necessary to distinguish between

16 responsibility of the accused on 7(3) and the responsibility of the

17 subordinates. Now, if I understand, and my question is to both parties,

18 if I understand the Defence's submission yesterday, when you had this

19 triangle, you thought of having a direct -- you were discussing and

20 rejecting a direct responsibility of the accused versus the civilians

21 under 7(3). Now, today we heard that from the Prosecution side, it's

22 different. It only refers to 7(3) with regard to the subordinates and the

23 subordinates' responsibility with regard to civilians. And the question

24 as concerns aiding and abetting does only concern the relationship between

25 the subordinates and the civilians and not the relationship between the

Page 16499

1 accused and subordinates with regard to the relationship between the

2 accused, through the vertical line, and the subordinates, there is no

3 change at all. There is -- you -- the law requires the same problems with

4 regard to having superior-subordinate relationship, with regard to knowing

5 or have reason to know and with regard to take measures to prevent. If

6 there is still some misunderstanding between the parties, I would be

7 interested -- or we would be interested to hear about.

8 MR. JONES: May I make one point, Your Honour? I think we the

9 Defence are entitled to clarity on this point above all else. In that

10 triangle we referred not to civilians, remember, but to opportunistic

11 visitors, referring to the prison. Now we are referring there to

12 unidentified persons who came into the prison, allegedly, and mistreated

13 detainees. Now, what we wish to have clarification on now, because it is

14 now to us completely unclear is, is the Prosecution saying that our client

15 has command responsibility over unidentified perpetrators who came into

16 the prison? I would appreciate the Prosecution to say that because they

17 referred to "others," others who came in and allegedly our client is

18 responsible for those others. If the Prosecution is prepared to say right

19 now, categorically, your client is not charged with any responsibility for

20 opportunistic visitors, these other people who came into the prison, then

21 that would be greatly appreciated.

22 JUDGE AGIUS: That's fair enough.

23 Ms. Sellers?

24 MS. SELLERS: The Prosecutor is prepared to say, Your Honour, that

25 in the description that I have is exactly as Judge Agius has just

Page 16500

1 described it. Where the difference comes in, the Prosecutor certainly

2 would say, in the first prison scenario, Kemo, we can either go straight

3 down to Kemo with regard to 7(3) responsibility. That is our evidence,

4 that is our thesis. Or we can go in that exceptional case over to Kemo

5 because he's aided and abetted by a guard who also falls under Naser Oric.

6 But what we are talking about and I think what the Defence wanted to have

7 clarified is that we have removed that third part of the triangle. We are

8 not saying Naser Oric has superior-subordinate responsibility for what the

9 Defence calls opportunistic visitors. It is possible, if they are also

10 his subordinates, then the triangle emanates that way, Your Honours. I

11 don't know my geometry but I think --

12 JUDGE AGIUS: I think that's clear enough. I think it's clear

13 enough. Mr. Di Fazio?

14 MR. DI FAZIO: Would Your Honours just give me a moment to gather

15 my papers? Ms. Sellers moved them around. If Your Honours please I want

16 to deal with the issue of sentencing first. Before I do, before I turn to

17 the main substance of my submission, there is a matter that I need to

18 raise with you that arises from matters that the Defence have put to you

19 in the last two days concerning sentencing. It doesn't go to substance of

20 the doing at hand but rather the expressions used by this Defence.

21 If Your Honours please, there was a portent of things to come in

22 the Defence reply when the Defence referred to the Prosecution submission

23 that a sentence of 18 years was appropriate as being grotesque. The

24 Prosecution had chosen to ignore that particular comment in the Defence

25 reply but matters did not lie there and yesterday submissions were made to

Page 16501

1 you, if I just might remind you of some of the express that is were used,

2 that this Prosecution considers the -- that sorry the Defence considers

3 the Prosecution submissions on sentence a cold-hearted demand, a Draconian

4 sentence, and expressions to the effect that the world will trust, will

5 judge the credibility of the Prosecutor, Ms. Carla Del Ponte, on this

6 record for asking such a sentence. And then goes on to develop the

7 submission by saying that the Prosecution is acting vindictively and

8 cruelly, simply for maintaining the -- for the accused maintaining his

9 innocence and mounting a vigorous Defence and ends up by saying that if

10 the Prosecution sentencing policy were based on concern for victims you

11 would never see such a disparity.

12 The Prosecution takes exception to any commentary concerning the

13 Office of the Prosecutor or the Prosecutor herself. That sort of

14 commentary was completely and totally uncalled for. It was unnecessary

15 and if I may say, it was a regrettable lack of unlawyerly language. And

16 the Prosecution wishes to state for the purposes of the record the fact

17 that it is most displeased and most upset at that use of language. There

18 are ways and ways, if Your Honours please, of arguing matters in court,

19 ways and ways of making submissions, and language is a good tool for

20 making even the most robust and forceful of submissions without resort to

21 that sort of language and that sort of personal attack. That's what I

22 wanted to say about the matter. I wanted to put it on the record and make

23 it known to this Trial Chamber.

24 If Your Honours please, can we now turn to the actual merits of

25 sentencing in this particular case? I just want to make a few what I'll

Page 16502

1 refer to as bullet points on the issue of the -- how you should look at

2 Deronjic with respect to this particular accused. Don't forget --

3 JUDGE AGIUS: I hope you both know that I was on Deronjic.

4 MR. DI FAZIO: Yes.

5 JUDGE AGIUS: Mr. Jones?

6 MR. JONES: Yes.

7 JUDGE AGIUS: I hope you both know that I was on Deronjic. I was

8 part of that judgement.

9 MR. DI FAZIO: Yes. Thank you, Your Honours. I'll proceed with

10 my submissions. It will only ensure that Your Honour will be able to

11 correct me if I make any --

12 JUDGE AGIUS: No, no, I just wanted to make sure that you were

13 aware of that.

14 MR. DI FAZIO: Thank you. Thank you for our sake.

15 If Your Honours please the Defence has suggested that the sentence

16 of 18 years sought by the Prosecution is excessive in the circumstances.

17 They've used other language but I think what they meant to say was that it

18 was excessive in all the circumstances to seek the sentence of 18 years of

19 imprisonment and they compare and invite to you compare the case of

20 Deronjic. There are substantial features about Deronjic that indicate why

21 it was necessary for the Trial Chamber in that particular case to award a

22 sentence of ten years imprisonment. There were of course a number of

23 aggravating features about the crimes that Mr. Deronjic committed.

24 Firstly there was a large number of civilians killed in the village of

25 Glogova and subjected to the risk of being killed, and forcible

Page 16503

1 displacement and deprivation of their property. It was a meticulously

2 planned attack on the village of Glogova in order to facilitate a scheme

3 of creating Serb ethnic territories. The accused in that particular case,

4 in his capacity as president of the Crisis Staff of the municipality of

5 Bratunac was -- held that position when he actually ordered the attack on

6 the village of Glogova. He ordered additional torching of houses

7 immediately following the attack, and he lulled the inhabitants, the

8 unfortunate inhabitants of that village into believing that they would be

9 safe before -- and thereby obtaining their disarmament before they were to

10 be informed about their fate.

11 And you'll find the references to all of those considerations in

12 paragraphs 2 -- 222 of the judgement -- of the sentencing judgement. In

13 that --

14 JUDGE AGIUS: Yes, would you mind being interrupted by Mr. Jones,

15 Mr. Di Fazio?

16 Yes, Mr. Jones.

17 MR. JONES: Yes, Your Honour, I apologise and it's with the

18 greatest regret that do I interrupt but it's essential that I do,

19 particularly since Your Honour has indicated you were sitting on the

20 sentencing judgments. Our point was never that the Trial Chamber got the

21 sentence wrong and it's wrong for Mr. Di Fazio to try to suggest that --

22 even to put Your Honour against us for appearing to criticise your

23 judgement. We never mentioned that. We referred to the indictment and we

24 referred to the Prosecution's request for ten years, and I was absolutely

25 crystal clear in that I even said that we do not say whether or not ten

Page 16504

1 years was appropriate or not for Mr. Deronjic, that's nothing -- that's

2 not a matter for us to say. We say that there is a disparity between the

3 ten years requested by the Prosecution and the 18 years requested in our

4 case. So if Mr. Di Fazio wants to talk about why their office asked for

5 different terms, that's one thing but it's certainly not appropriate to

6 seek to suggest that we in any way attacked the Trial Chamber or in any

7 way considered that it had imposed an inappropriate sentence.

8 MR. DI FAZIO: Thank you. That's not what I'm saying.

9 JUDGE AGIUS: Thank you, Mr. Jones. Let's not pre-empt the matter

10 because I haven't finished -- I haven't seen the -- heard the conclusion

11 from Mr. Di Fazio. I don't know where he is aiming. I didn't interject

12 myself yesterday because obviously of what you've just repeated, that you

13 made it clear that you were not in any way involving yourself as to

14 whether the ten-year sentence in Deronjic was a right one, justified or

15 not. I mean he made that clear yesterday. So I can't --

16 MR. DI FAZIO: I'm not making that submission. I don't know how

17 I --

18 JUDGE AGIUS: That's what I understood.

19 MR. DI FAZIO: I'll just go on with my submissions, if I may. I'm

20 talking about the aggravating factors, if Your Honours please, the

21 seriousness of the conduct of Mr. Deronjic highlighting the central

22 features of it. That's the first approach that I want to take. I now

23 want to look at the mitigating factors that exist in Deronjic, if

24 Your Honours please. The Trial Chamber made the following observations.

25 It accepted -- it recognised the importance of Mr. Deronjic's guilty plea

Page 16505

1 as his acceptance of individual criminal responsibility. That's paragraph

2 237 of the judgement. The Trial Chamber accepted that his guilty plea

3 tends to contribute to the process of reconciliation in Bratunac and in

4 particular in Bosnia-Herzegovina in general, that's paragraph 238.

5 The Trial Chamber concluded that his guilty plea and his readiness

6 to testify in other trials assisted the Tribunal in its search for the

7 truth and prevented historical revisionism. It also spared the victims

8 and witnesses from being required to come and testify. And you'll find

9 that at paragraph 241.

10 So there were significant factors that existed in the case of

11 Mr. Deronjic that had a powerful mitigatory effect that are totally absent

12 here. If Your Honours please.

13 The Trial Chamber referred, and I emphasise this, it's an

14 extremely important matter for Your Honours to consider, it referred to

15 the substantial cooperation of Mr. Deronjic in that particular case. It

16 was unique, he provided unique and corroborative information to the

17 Prosecution, paragraph 246. He appeared in a number of other cases and

18 testified. He appeared and testified in the Momir Nikolic case. He was

19 called by the Trial Chamber in that particular case. He appeared as a

20 witness in the Krstic appeal, in the Blagojevic trial, in the Krajisnik

21 trial, and in the Milosevic trial. He made good on his promises of

22 cooperation and delivered, if Your Honours please, on cooperation. And

23 it's an extremely significant and important factor that you have to

24 consider.

25 And he also provided a large amount of documentation and material

Page 16506

1 to the Prosecution concerning significant Bratunac SDS meetings. He also

2 identified new crimes and perpetrators that had been previously unknown to

3 the Prosecution. And you'll find those references at paragraphs 254 and

4 255 of the trial judgement.

5 So the Trial Chamber stated that whether it considered all the

6 mitigating circumstances together, and quote giving particular importance

7 to such factors as the guilty plea and substantial cooperation by the

8 accused, a substantial reduction was warranted.

9 Now in this particular case, if Your Honours please, all of that

10 is utterly absent. It's totally absent. First of all there has been no

11 guilty plea. The Defence yesterday referred to examples of the

12 cooperation of Mr. Oric. I believe it referred to the fact that he

13 granted an interview. If Your Honours please, that is not a matter of

14 cooperation. It was a self-serving interview, there was certainly nothing

15 in it that could be remotely considered to be a confession.

16 JUDGE AGIUS: That's one way of putting it. Let's put it like

17 that.

18 MR. DI FAZIO: It is, with respect, if Your Honours please, the --

19 really the only way of putting it. Don't forget that Your Honours are

20 considering all these things if you find him guilty and if you -- of the

21 charges, of course, and that's the perspective that I'm now speaking to

22 you from. That question still needs to be addressed. It's the question

23 in this case. But I'm now approaching and addressing you on the basis of

24 the position that you have arrived at that conclusion.

25 If having arrived at that conclusion, if having made findings of

Page 16507

1 guilt in respect of these charges, you then look for cooperation, what

2 will you find? You'll find a desert. As far as the interview is

3 concerned that he gave to OTP investigators, it was an interview given as

4 a suspect and as I say, it's entirely self serving and nothing in it can

5 be remotely considered as an admission of guilt, an expression of remorse,

6 an acceptance of the burning and the cruel treatment and the murders that

7 occurred under his watch.

8 Furthermore, the Defence referred to the known signatures of

9 Tedder and Kelly, the two police officers, sorry, the known signatures of

10 the accused were taken by Kelly and Tedder in the course of interviewing

11 him, and the Defence consented to the admission of the declarations of

12 Kelly and Tedder into evidence and that would facilitate the Prosecution

13 in proving its case. That shines a spotlight on how underwhelming the

14 cooperation of the Defence has been in this particular case. They were

15 painted into a corner, if Your Honours please. There was really no

16 realistic or sensible possibility of the Defence being able to challenge

17 the taking of those known signatures. It is breathtaking in its lack of

18 impact as far as cooperation is concerned. And a matter of the -- of

19 almost non-existent impact.

20 Cooperation is striking in its absence in this particular case.

21 And certainly if Your Honours please that other aspect of matters

22 that is so closely tied to cooperation and the guilty plea, expressions of

23 remorse, this entire Defence has been -- the -- there have been no

24 expresses of remorse that you have heard in the trial record, nor in any

25 of the sentencing submissions made by the Defence on behalf of the

Page 16508

1 accused.

2 And so that is also absent. Now, if Mr. Deronjic will not

3 expressed remorse, if he had not cooperated, if he had forced the

4 Prosecution to prove its case, chapter and verse, what would an

5 appropriate -- what appropriate sentence would there have been imposed in

6 that particular case? If you look at it from that point of view, if

7 Your Honours please, a sentence of 18 years' imprisonment sought by the

8 Prosecution is by no means befitting of the terms that I want to use them

9 that have been used by the Defence in describing that range of sentences.

10 So, they are the most significant matters that the Prosecution

11 wants to raise with respect to the -- to the sentencing issues put by the

12 Defence.

13 When you finally -- sorry, there is just one further matter that I

14 should mention in relation to Deronjic and this particular case by way of

15 comparison. And comparisons are, of course, always limited when it comes

16 to sentencing. If Your Honours please, you will know that.

17 JUDGE AGIUS: And they are odious, too.

18 MR. DI FAZIO: Very well. If Your Honours please, in this

19 particular case the sentence of 18 years' imprisonment is being sought for

20 six murders, ten individuals who were cruelly treated over extended

21 periods of time, over two separate periods of time, and there were five

22 villages that were destroyed. Five villages and the surrounding

23 communities that were destroyed. Over an extended period of time. Those

24 communities were in the main destroyed forever and the people have not

25 gone back to those villages and resumed their lives. Whole communities

Page 16509

1 have been destroyed. These are extremely serious crimes. In a national

2 jurisdiction you would expect for six murders a sentence of 18 years'

3 imprisonment to be at the bare minimum. If Your Honours please a sentence

4 of 18 years' imprisonment is not excessive. It is not by any means

5 immoderate and it is in the Prosecution's submission utterly appropriate

6 for the crimes that the accused is found guilty of, if that be your

7 finding. They are the submissions that I wanted to make on sentencing.

8 Unless there is anything else I'll move on to the other topics.

9 JUDGE AGIUS: There is one point I would like you to elaborate

10 slightly. And that's the point that you have mentioned a couple of

11 minutes ago and which you also referred to in your brief, and that's the

12 question of remorse. What kind of remorse do you have in mind for the

13 purpose of mitigatory factors?

14 MR. DI FAZIO: Expressions of remorse, if Your Honours, please,

15 concerning the cruel treatment that was meted out to the prisoners,

16 expressions of remorse that he did not prevent or punish the perpetrators

17 of the treatment that was meted out to the prisoners. Expressions of

18 remorse for the communities that were destroyed. The houses, the houses

19 of -- and barns of people, simple people who were living up in those areas

20 where the villages were located. Expressions of remorse over those

21 issues.

22 JUDGE AGIUS: How would you reconcile that with the accused's

23 presumption of innocence and right to remain silent?

24 MR. DI FAZIO: Well, if Your Honours please, this jurisdiction

25 requires, often calls for these submissions to be made during the actual

Page 16510

1 trial itself. During the conduct of -- would Your Honours just bear with

2 me?

3 JUDGE AGIUS: The right of the accused not to incriminate himself

4 basically is what -- I don't I dealt with this myself because that's one

5 part of the Brdjanin judgement that I drafted myself so I dealt with this

6 considerably also because I had an ad hoc submission on it.

7 MR. DI FAZIO: Yes.

8 JUDGE AGIUS: You know that basically we have in these trials

9 something which is peculiarly different from ordinary trials in the

10 domestic jurisdiction, where, for example, in my country, and yours, the

11 jurors, the jury, comes with its verdict of guilty or not guilty and if

12 the accused is found guilty in a trial, by jury, then there is a

13 sentencing hearing. It's not always the case, especially not always the

14 case in all jurisdictions, but it is the case in many jurisdictions,

15 including mine so at that point in time if the accused has been found

16 guilty it's no longer incompatible with his presumption of innocence, his

17 right to remain silent, his right not to incriminate himself, to say, yes,

18 now, for the purpose of sentencing, I -- and without prejudice to any

19 right of appeal that I might have I do wish to say how sorry I am that

20 these crimes happened but do you expect the accused to do that in the kind

21 of proceedings that take place before this Tribunal, where there is no

22 sentencing hearing phase at all? This is the issue that I would like to

23 address.

24 MR. DI FAZIO: Yes, yes. Well, no, you wouldn't expect it, if

25 Your Honours please, and furthermore it's going to be rather too late for

Page 16511

1 expressions of remorse to be expressed after conviction. That's the

2 problem. If there had been expresses of remorse from the start, but

3 another sort of defence, a technical Defence or something like that, that

4 might be something that you could take into account. But there has been

5 an absence of any expression of remorse.

6 Certain things are clear. Certain things are clear. It's a

7 difficult question, I know. But certain things are clear. Firstly, you

8 as a -- as the sentencing institution the sentencing body, are permitted

9 to take remorse into account, and you must. You must take it into account

10 because the man who comes here truly remorseful should be given the

11 benefit of any discount that you can afford, that you can afford to give

12 him on -- because of that factor. If there has been none, and there has

13 been none in anything that I've heard, in the time that I've been involved

14 in this case, you can conclude that there is nothing to be -- no downward

15 pressure on the sentence, so to speak, on that basis.

16 JUDGE AGIUS: All right. Let's move to the next point.

17 MR. DI FAZIO: As I said, Your Honours, they are the matters that

18 I wanted to raise with you with respect to sentencing.

19 If Your Honours please, you -- I'll now turn to documents, if I

20 may.


22 MR. DI FAZIO: Your Honours, the Trial Chamber, directed a

23 question to me I think Tuesday, concerning how this claim should approach

24 experts who conflict with each other. I've been thinking about it.

25 It's -- I don't know that I can develop much more from what I said to

Page 16512

1 Your Honours the other day. It is, of course, a common -- I'd say it's a

2 very common problem that Tribunals all around the world face. Triers of

3 fact are constantly presented with situations where experts disagree.

4 Examples abound. Wherever there is a defence of intoxication or

5 automatism involving the use of psychiatric evidence to assist the Court

6 in determining the accused's state of mind for a crime that might have

7 occurred under the influence of drugs or alcohol or something like that,

8 for example. Juries in the common law system and Judges in the common law

9 system as well are called upon to decide.

10 JUDGE AGIUS: But I don't think I may have not made myself

11 understood then. I wasn't worried about that, that I have been doing all

12 my career as a judge. What I was interested in is your legal position

13 when it comes to documents or signatures examined by Professor Bilic and

14 Professor Bilic alone, not by Fagel or Kerzan. And Professor Bilic has

15 come to the conclusion, took the conclusions that he has come to, which on

16 the face of them shed serious doubts on the authenticity of those

17 documents.

18 MR. DI FAZIO: Thank you.

19 JUDGE AGIUS: Now, short of any evidence, expert evidence, from

20 the Prosecution, short of any expert evidence from the Trial

21 Chamber-appointed expert what is your position, considering that the onus

22 of proof and the authenticity of document rests with you from beginning to

23 end.

24 MR. DI FAZIO: You can see documents that fall into that class

25 outlined immediately in annex B of the Prosecution's submission to its

Page 16513












12 Blank page inserted to ensure pagination corresponds between the French and

13 English transcripts.













Page 16514

1 final submission. They set out the list of documents that were commented

2 upon by the only by Mr. Bilic and they concern in the main, I believe, the

3 Fejzic documents and the Salihovic documents. The -- this issue was A --

4 was already addressed to a certain extent in the Prosecution final brief,

5 at -- in the Prosecution final brief and addressed in the Defence reply.

6 By that I mean the Prosecution complained in its final brief that the

7 known signatures and known writings of both of those men were not

8 included, not provided, to this Trial Chamber, and then Professor Bilic,

9 using those known signatures and known writings, went on to examine

10 various questioned documents. They are P19, P46, P48, P49, P51, P61, P62,

11 P66, P69, P101, P108, and P485.

12 JUDGE AGIUS: Forget that argument for the time being because that

13 is not exactly what I meant. That is a situation that needs to be dealt

14 with by this Trial Chamber, the fact that the signatures that Professor

15 Bilic relied upon for examination purposes have not been available. It's

16 something that obviously we need to deal with, taking into consideration

17 your submissions and also the submissions of the Defence. What I am

18 asking you to direct your attention at is the following: Forgetting that

19 argument, forgetting that submission completely, we do have, as the state

20 of affairs an expert's report which in so many words tells us exhibits 1,

21 2, 3, 4, are not authentic in my opinion because I have examined the

22 signature with what I had and I have come to that conclusion on the basis

23 of my expertise. Okay? We can't control that. You could have controlled

24 that because the Prosecution -- the Defence has submitted that you were

25 put on notice from the beginning of the trial that all these documents

Page 16515

1 were challenged, and the submission is if they could get hold of Fejzic

2 and get his specimen signatures then you could have done the same. If

3 they could manage to find signatures of Salihovic, you could have found

4 the same, just as you tried to do with Dzananovic signature. This is the

5 argument but again forget that. The state of affairs, the status quo, is

6 now, not as the status question and/or any other status quo, the status

7 quo is there is an expert's report by an expert chosen by the Defence who

8 says, These are my findings. Are those findings in your opinion

9 contradicted in any way by any much your evidence to start with? This is

10 the basic point that you need to address. If they are in your opinion,

11 could you please come forward and tell us how they are? And if they are

12 not, if they are not, specifically contradicted, then what is your

13 position as regards the onus of proof that you have throughout the

14 proceedings of proving the authenticity of those documents keeping in mind

15 that the Defence need only, if they decide to challenge, they don't have

16 the onus of proving the non-authenticity or the forgery of those

17 documents. They only have a -- not even a burden, a responsibility to

18 show what they tried to show, and whatever they need to indicate to us can

19 be satisfied on the basis of probabilities only and not on beyond a

20 reasonable doubt, as you have. I don't know if I have made myself clear.

21 If I haven't, please do tell me and I will try and explain again.

22 MR. DI FAZIO: No, Your Honour has made yourself very clear.

23 There is no -- I understand perfectly.

24 The last issue -- I can instantly answer. The Prosecution bears

25 its burden throughout. It's got it on its shoulders now, and it will have

Page 16516

1 it on its shoulders at the time you're writing your judgement and it had

2 it at the time before the trial started. We never lose it. It always

3 remains and never transfers to the Defence except in the most odd

4 circumstances that don't apply in this case at all. So that's -- that is

5 the Prosecution position. We accept that.

6 Now, as far as other evidence that might assist you in weighing up

7 Professor Bilic's evidence, is concerned, the Prosecution can only point

8 you to these two main features. Firstly the authors, as far as the

9 Salihovic signatures are concerned, of course with the Fejzic signatures,

10 you've got the other -- the juxtaposition of the Oric signature and the

11 Fejzic signature. So there's no problem there, but you know what our

12 argument is there. But as far as Salihovic can is concerned you know that

13 he was the head of intelligence and the accused has said so in his

14 interview and these documents have -- bear that mark and all of -- all of

15 the documents that were -- some of these documents are the ones that I

16 read out to you, those interrogation notes of the prisoners who were

17 mistreated or perhaps later murdered, some of the witnesses who came here

18 were shown similar documents and asked about the content of the document

19 and the content to confirm the details of the content of the document and

20 that contained esoteric information, information that's only known to the

21 person who was here in the box testifying before you. So that is

22 something that you can consider in assessing, weighing up, what

23 Professor Bilic says about the falsity of these documents or what the

24 Prosecution says to you about the reliability.

25 JUDGE AGIUS: What would be your best scenario and your worst

Page 16517

1 scenario in relation to the Salihovic signatures or alleged signatures?

2 MR. DI FAZIO: I don't understand the question.

3 JUDGE AGIUS: The best and worst scenario. I mean --

4 MR. DI FAZIO: Worst case scenario is you accept everything that

5 Professor Bilic says and find that what he says might possibly or

6 reasonably be true and it casts doubt upon your acceptance of the

7 documents as reliable.

8 JUDGE AGIUS: Okay. I think it's fair enough. Let's --

9 MR. DI FAZIO: I hope I didn't mix my words.

10 JUDGE AGIUS: I think I understood you.

11 MR. DI FAZIO: If Your Honours please, I just don't want to leave

12 that other point. The one that Your Honours say you have understood.

13 It's regarding the failure to provide known signatures and known writings.

14 JUDGE AGIUS: Don't take me wrong. I didn't criticise you for

15 that. I was repeating the arguments put by the Defence in your regard on

16 that. I wasn't at all commenting.

17 MR. DI FAZIO: It's a feature of the evidence that in the

18 Prosecution's submission compels you to ignore the evidence of Bilic in so

19 far as the Fejzic and the Salihovic signatures are concerned. And as far

20 as the Fejzic signatures are concerned, it's all of the evidence there

21 should lead to you have very serious doubts about the reliability of

22 Professor Bilic.

23 If I can use -- just make an analogy that's going to be I think

24 will demonstrate my point, on the -- what I say are the devastating

25 consequences of the failure to provide those known signatures and

Page 16518

1 writings, the only way an expert comes along not to give evidence of fact

2 but to give you his opinions, which he's permitted to do because he's an

3 expert and that's an exception to the normal rule. So in order for you to

4 weigh up, judge, consider his opinions that he expresses here in the

5 witness box, you've got to know what foundation they are built on. You

6 must know that, because otherwise you can't judge it. And the tool for

7 the Prosecution to do that is through cross-examination. Now the

8 Prosecution was deprived of any chance, any chance, to attack these

9 particular conclusions concerning Salihovic and Fejzic. You will never

10 know on what it's based, just as the Prosecution doesn't know. If you

11 don't have the known writings, you can't -- you can't see the -- can't

12 assess the foundation that the expert builds his opinion on.

13 If the police find a man who has been shot and two blocks away

14 they find the man with the gun and they think that that's the killer, and

15 they take the gun and the man and they take him down to the police station

16 and they say, We think you're a murderer and this is your gun that you

17 used to kill someone. And they conduct an autopsy on the body and they

18 extract the bullet. They get the bullet and they take it off to their

19 analyst and they this is the bullet that comes from the dead man and this

20 is the gun that we think was used to fire it. And the analyst goes ahead

21 and he hits his gun and he fires six shots and he analyses the bullets and

22 he looks at the stripes and the striations and the patterns and so forth

23 on the bullets, and then he comes along and he says, No doubt about it.

24 That's -- that gun fired that one bullet that landed in the dead man's

25 body and it also fired the six other bullets that I saw and I tested.

Page 16519

1 Then how do you expect Prosecution or defence, depending on who is

2 adducing that evidence to test it, if they don't have the six bullets?

3 How does it work? Where do you start? I can't -- I can't offer you any

4 assistance on Salihovic, on what Professor Bilic said about the Salihovic

5 and Fejzic signatures because I can't test, I couldn't -- or rather

6 Mr. Wubben couldn't test Professor Bilic. How do I approach it? And that

7 failure is catastrophic for that section of Professor Bilic's evidence.

8 The Defence in its reply said, oh, well you know, it's -- you go to --

9 it's -- it's nothing to do with Professor Bilic. It was a decision of

10 counsel. It doesn't matter whose decision it was. If the foundation --

11 you can't see what the foundation is made of, you can't judge the opinion.

12 And so for that reason, that's the end of the Salihovic and the Fejzic

13 evidence, as far as Bilic is -- Professor Bilic is concerned.

14 If Your Honours please, the Dzanan Dzananovic, did you want to

15 hear me on that?

16 JUDGE AGIUS: Yes, yes, of course. I mean, I did put it to you on

17 Tuesday or Monday.

18 MR. DI FAZIO: I won't be long. If Your Honours please, here we

19 have clear evidence that some documents that the Prosecution has produced

20 to you don't -- do not bear the Dzananovic signature. Someone else wrote

21 the Dzananovic signature. Madam Vidovic made the submission to you, I

22 think it was Madam Vidovic, on -- at page 16362, she referred to two

23 documents, I believe, P17, P333. The -- there is a -- the expert report

24 of Dr. Fagel is not in evidence, as far as I'm aware.

25 JUDGE AGIUS: Yes, it is.

Page 16520

1 MR. DI FAZIO: Yes, concerning all of the --

2 JUDGE AGIUS: It's been put in evidence by the Defence.

3 MR. DI FAZIO: Yes. The Dzananovic?


5 MR. DI FAZIO: Fine. That solves my --

6 JUDGE AGIUS: Two documents, one is Dzananovic's statement to the

7 Office of the Prosecutor, to the investigator.

8 MR. DI FAZIO: Yes.

9 JUDGE AGIUS: Right, D139.

10 JUDGE AGIUS: With one particular exhibit, document which ends

11 with 5778.

12 MR. DI FAZIO: Yes, yes, yes, yes.

13 JUDGE AGIUS: That much I remember. Which I think is P17, if I

14 remember well.

15 MR. DI FAZIO: Yes.

16 JUDGE AGIUS: But then it deals also with a number of other

17 documents that were shown to him. And what we did, we checked then with

18 the other document that has been tendered by the Defence, which is

19 Dr. Fagel's report to you dealing with several documents that were handed

20 to him supposedly containing the signature of Dzananovic. He has analysed

21 same and come to various conclusions.

22 MR. DI FAZIO: Yes, okay.

23 JUDGE AGIUS: And the highest is probably not.

24 MR. DI FAZIO: I know that. What -- I wasn't concerned about

25 that. I wanted to highlight that, in fact, but I wasn't sure it was in

Page 16521

1 evidence and I didn't want to -- giving evidence from the bar table.

2 JUDGE AGIUS: They are in evidence because we -- I have done the

3 comparative analysis with Judge Eser and Judge Brydensholt. We spent the

4 entire morning doing that.

5 MR. DI FAZIO: In that case Your Honours will know what he said

6 about P17 and P333, probably not in the case of P17 and do not support the

7 proposition written by Dzananovic in the case of P333.

8 JUDGE AGIUS: My concern, Mr. Di Fazio, is that in that situation

9 you're still making use of P15, P16, P17, these are all the same genre of

10 documents, of reports, supposedly of the military police et cetera. And

11 you, during the proceedings, themselves, you only made use of P15. You

12 did not make use of P16, P17, P18. But then you made ample use of P16 and

13 P17 and P18 in your final brief. And these were examined by -- apart from

14 P15 because P15 you make even more use in your final brief.

15 MR. DI FAZIO: I'm sorry, I'm not with you. What is the point

16 that Your Honour is driving at?

17 JUDGE AGIUS: The point is this: Let's start with P15. P15 is

18 the one which was dealt specifically with by both Dzananovic in his

19 statement to the OTP. He saw the document ending with 9558, the last four

20 numbers, last four digits, and he said, "That is definitely not my

21 signature."

22 MR. DI FAZIO: Yes.

23 JUDGE AGIUS: Now, P15, P16, P17, and P18 are all Dzananovic

24 documents which were examined together with a whole list of other

25 documents by Professor -- by Dr. Fagel, your expert, for you, exclusively

Page 16522

1 for the office of the -- and he has come to the conclusion, one or the

2 others, that these are either definitely not the signature of Dzananovic

3 or probably not the signature of Dzananovic. In the case of 15, his

4 finding would obviously strengthen the position of Dzananovic when he

5 affirms that that is not his signature. P15 you made use of during the

6 proceedings, during the hearings. You made use of it with more than one

7 witness. P16, P17, and P18, you did not refer to any witness, but you

8 still rely on these four exhibits in your final brief.

9 MR. DI FAZIO: Yes, yes.

10 JUDGE AGIUS: For various purposes. So my question to you is the

11 following. On considering that your own expert for your own purposes more

12 or less casts a measure of doubt as to the reliability of these documents,

13 how much reliability are attributing -- are you attributing to these

14 documents?

15 MR. DI FAZIO: I understand the point.

16 JUDGE AGIUS: Sorry for not being clear with you before.

17 MR. DI FAZIO: No, no, thank you, Your Honour. The point that the

18 Prosecution needs to make about that is this documentation is this: It's

19 the -- would Your Honours just bear with me for a moment?

20 [Prosecution counsel confer]

21 JUDGE AGIUS: Judge Eser is suggesting if you prefer that you deal

22 with this after the break.

23 MR. DI FAZIO: No.

24 JUDGE AGIUS: If it's more convenient for you?

25 MR. DI FAZIO: Is it time for the break?

Page 16523

1 JUDGE AGIUS: Not yet, not yet.

2 MR. DI FAZIO: If there is going to be a break that would be good.

3 JUDGE AGIUS: There is going to be a break very soon, yes.

4 MR. DI FAZIO: I'm happy to deal with it then or taking a minute

5 or two -- I won't be making long submissions on it.

6 JUDGE AGIUS: Let's deal with it after the break. There will and

7 25-minute break starting from now. Thank you.

8 --- Recess taken at 3.45 p.m.

9 --- On resuming at 4.19 p.m.

10 MR. DI FAZIO: Thank you, if Your Honours please, I'll try to wrap

11 up my submissions fairly quickly now. As far as these patrol reports

12 involving the use -- involving Dzananovic's name. If Your Honours please,

13 the Prosecution's submission can only be this: It's unlikely to be the

14 work of any seasoned Serb forger or any forger for that matter in the

15 sense of being put there with a sinister or conspiratorial motive. It may

16 be that someone wrote these -- maybe someone filled out the signatures on

17 his behalf, I don't know. The rest of the documents don't suffer from any

18 problem that it has apart from that particular aspect to it. And I'm told

19 by Ms. Sellers that these documents are also -- receive some confirmation

20 in other documents in particular P458.

21 So that's all that I want to say to you about the Dzananovic

22 documents. It does also reflect upon the credentials of Dr. Fagel

23 incidentally and you will see that he's not going to provide opinions that

24 support the Prosecution across the board wholeheartedly.

25 If Your Honours please just one or two other matters. Firstly,

Page 16524

1 returning to the situation where you have conflict between forensic

2 handwriting examiners, I want to refer you to two of the books that were

3 provided by Professor Bilic, the Defence forensic handwriting expert,

4 Ordway Hilton's scientific examination of questioned documents and the

5 other document that featured more came up more often in testimony, David

6 Ellen's book, Scientific Examination of Documents. I think you should

7 have copies of the extract from the book that had been handed up by our

8 case manager, Ms. Donnica Henry-Frijlink.

9 JUDGE AGIUS: I speak for myself. I am not -- of course, I'm

10 aware of the authors but -- and their work but --

11 MR. DI FAZIO: I think you're just about to get the extracts now.

12 JUDGE AGIUS: I don't know.

13 MR. DI FAZIO: Very well.

14 JUDGE AGIUS: This is the Blaskic appeals judgement.

15 MR. DI FAZIO: Apparently it's on the last page, three things were

16 put together, I'm told.

17 JUDGE AGIUS: All right.

18 MR. DI FAZIO: It's there.

19 JUDGE AGIUS: Yes, yes, now we have it, yes.

20 MR. DI FAZIO: All I want -- if you just get Ordway Hilton's

21 book --

22 MR. JONES: We still don't have a copy.

23 JUDGE AGIUS: You don't have a copy? Not yet?

24 MR. DI FAZIO: I regret that the Defence should have provided

25 copies. I'm sorry about that. You don't need to study it. I can read

Page 16525

1 the relevant extract into the transcript. This is really a factual issue

2 and it's -- an observation. Page 413 of Hilton's book, document examiners

3 as opposing witnesses and it refers to conflicting testimony by document

4 examiners of high professional standing tending to be a rare occurrence.

5 And they go on to talk about one examiner who has had a clean run. And

6 they then say, "Nevertheless conflicts do occur. The usual situation

7 involves at least one examiner of limited training and ability or

8 experience. Unfortunately there are a growing number of examiners trained

9 by" -- it goes on to the next page. That's not really the extract that I

10 wanted to refer you to. It's the rarity of the occurrence of conflict

11 between document examiners referred to by Ordway Hilton. And, of course,

12 in this case, there is a -- not a conflict but a collision that occurs

13 between Bilic, Professor Bilic, and Dr. Fagel. If Your Honours please,

14 the other reference that I wanted to draw your attention to is the

15 scientific examination of documents, David Ellen, that's page 51, and he's

16 talking about subjectivity in the assessment of documents. It's the last

17 sentence of that paragraph, just above the heading identification. And

18 the author says, the subjective element recognised and allowed for is

19 reduced to an absolute minimum and there is with few exceptions close

20 agreement between the findings and conclusions of different competent

21 practitioners. That's the commentary of experts on the likelihood of a

22 situation developing, as has developed in this case. And I offer that to

23 you for some assistance on that -- on what to do in this situation where

24 you have a head-on collision between experts.

25 If Your Honours please, the Prosecution has produced a chart, I

Page 16526

1 don't want to say anything more about it other than to assist you. It's

2 the chart dealing with the documents coming from what the Defence says are

3 suspect or unreliable collections or sources, and you can see the

4 commentary -- do Your Honours have that?


6 MR. DI FAZIO: Right. Okay. I don't want to elaborate. It's

7 self explanatory. You can see it. Your Honours can marry to -- to any

8 chart you have produced and the Defence can do the same.

9 JUDGE AGIUS: All right. It remains clear as per what was stated

10 earlier that these are not exhibits. It these are just aids, correct?

11 MR. DI FAZIO: Absolutely, Your Honour. I don't seek to make any

12 other use of them other than as an adjunct to the submissions and they

13 should not be exhibited, I agree.

14 If Your Honours please, that completes my submissions.

15 JUDGE AGIUS: Thank you.

16 So it's Ms. Richardson now? Yes, Ms. Richardson.

17 MS. RICHARDSON: Thank you, Your Honour, and good afternoon to the

18 Trial Chamber.

19 JUDGE AGIUS: Good afternoon to you.

20 MS. RICHARDSON: Your Honour, I will be brief in my comments.

21 This in fact is a reply to submissions that were already made. Just

22 briefly with respect to what was said about the interview of Naser Oric by

23 Ms. Vidovic on Monday, I believe, the Defence indicated that the interview

24 of the accused, Naser Oric, had numerous problems, one of which was the

25 fact that Naser Oric received information from other individuals.

Page 16527

1 Your Honour, you've already assured the parties that that interview will

2 be thoroughly reviewed. But I would just briefly like to point out that

3 the portion of the interview that was referred to both by the Prosecution

4 and the Defence, Naser Oric specifically stated that after he contacted

5 his fight -- after contacting fighters it was only then he remembered

6 certain information, and I think that as you review the interview you will

7 find various areas of where this occurs. So that the information that he

8 presented to the investigators was not as the Defence contends, that is

9 based on information from fighters, but it was his memory and recollection

10 being jogged by information that he received, and I think that the

11 interview will bear that out as he very often used the words, "remember,"

12 and "recollect."

13 And secondly, the Defence used the portion of the videotape where

14 the investigators stated to the accused that they did not want to hear

15 about couriers, and the Defence suggested that this was aggressive

16 behaviour or Mr. Oric was being prevented from giving information as he

17 saw fit. The Prosecution's response to that matter is, as you review the

18 video tape, excuse me, as you review the transcript of the interviews as

19 well as the interview itself, you will see that the investigators were

20 trying not to go over information that the accused had already discussed.

21 So, for instance, the transcript where he -- Prosecution's Exhibit 329,

22 transcript 21, page 8 to 9, where Naser Oric is giving information about

23 the types of communication systems they had available including ham radios

24 and Motorolas, et cetera, and where the investigators indicated that they

25 did not want to go over couriers again, it's our position that couriers

Page 16528

1 had been discussed on the 3rd of April 2001 and you will see that in

2 Prosecution's Exhibit 329, transcript 5, page 3 to page 8, where he quite

3 extensively went over the type of courier system that was available to the

4 Srebrenica armed forces, that the Prosecution submits that once these are

5 reviewed the Trial Chamber will find that they were quite effective and

6 creative and they were functioning. So that's with respect to the

7 Prosecution's position on what was said about the interview.

8 Mr. Jones referred to Ilija Ivanovic's identification of the

9 accused in the reception room while he was imprisoned in Srebrenica, and

10 Mr. Jones stated that Ratko Nikolic had also been in the room with

11 Mr. Ilija Ivanovic and such that Ratko Nikolic did not state that he saw

12 Naser Oric and it would seem strange that if they were both there

13 together, that Ratko Nikolic would have mentioned this. And that's a

14 valid point, if it were true. I would refer the Trial Chamber to

15 transcript 4050, the testimony of Ilija Ivanovic. Question to him

16 regarding who was present during this time where he identified a number of

17 individuals that he knew before as well as someone he recognised later on

18 as Naser Oric. Question to him, to Mr. Ivanovic, was: Did there come a

19 point in time that you were removed from the cell and taken to another

20 room in this building to be questioned?

21 The answer: Yes. I remember once, I can't say whether it was

22 more than that. They took me to the reception room where they had the

23 soldiers who watched us. I was taken out of the room and taken to the

24 reception room. And I recognised Ismet -- he goes on to name Ahmo Tihic.

25 We submit that Mr. Ivanovic never, at any time, contrary to the Defence

Page 16529

1 statements that Ratko Nikolic was present, he specifically said that he

2 was taken to the room.

3 JUDGE AGIUS: There was also another submission that in his

4 testimony, he never mentions having seen Naser Oric or anyone resembling

5 Naser Oric.

6 MS. RICHARDSON: Yes. In fact, Your Honour, I'm happy that you

7 brought that up because, as you review the transcript, and I urge you to

8 review it carefully, and this is the portion in examination-in-chief,

9 cross-examination and redirect, and the portion that Mr. Jones pointed to

10 or what he -- what he positioned to the Trial Chamber regarding Mr. Ilija

11 Ivanovic's identification, Mr. Ivanovic was very clear, when he said, at

12 the time that he saw Naser Oric, he did not know him, meaning that at the

13 time he saw him in the reception room, he didn't know him, and he was

14 quite honest about that. And I think as you go through the re-examination

15 as well as the examination-in-chief, you will see that the questions posed

16 by myself and Mr. Jones, very careful reading you will see that the

17 witness said that he did not know him at the time, and he repeated this.

18 And it's not a matter of glancing over at and coming to the conclusion

19 that he said he didn't know Naser Oric. What he responded on questioning

20 about what he knew, whether he knew Naser Oric before it was specifically

21 to the reception room period, at the time he saw him he did not know him.

22 However, he was very clear and we point this out in our brief, and I think

23 I also made submissions on it, he was very clear that it was only

24 afterwards that he put the face together when he saw him on television and

25 newspapers. And I think it's an important point for Your Honours to

Page 16530

1 consider and to review again and again, if necessary, because I myself had

2 to review it again and again. Not because I didn't believe him but

3 because the way the witness answered to questions on examination and

4 cross-examination, it may have appeared as though he said he did not know

5 Naser Oric but in fact what he was responding to was he didn't know him at

6 the time he saw him. So I would invite you to carefully go through that

7 testimony of Mr. Ivanovic and I'm certain that Your Honours will come to

8 the same conclusion that that's what the witness was referring to.

9 Your Honours, if there are no more questions on that

10 identification matter I can move on -- yes, indeed.

11 JUDGE AGIUS: I just wanted you to address it because actually it

12 was a two-pronged attack by the Defence on that issue.

13 MS. RICHARDSON: Yes, indeed. And again we put it in our brief

14 and I responded to it on Tuesday.

15 Next, Your Honour, the Prosecution submits that we presented

16 evidence beyond a reasonable doubt that the military police were guards of

17 the detention facility, that being the SUP building as well as the prison.

18 Our evidence, the Prosecution's evidence, established that during the

19 first prison scenario, that being September to October of 1992, that

20 Mirzet Halilovic was indeed the commander of the military police. Naser

21 Oric himself stated this more than one occasion in his interview, and you

22 will find that in numerous places, and I think we've cited to that as well

23 in our closing brief.

24 Naser Oric also said very specifically that the military police

25 was in charge of the prison and that Hamed Salilovic, you can refer to

Page 16531

1 this portion of his interview Prosecution Exhibit 329, transcript 17, page

2 8. And this is in response to questions about who was -- who was in

3 charge of the prison and he specifically said it was the military police,

4 the military police, of course, being headed -- at the time being headed

5 by Mirzet Halilovic.

6 In addition, the Prosecution's evidence also establish that the

7 military police guarded the prison and this evidence is based as well in

8 addition to statements in -- by Mr. Naser Oric in his interview, Cude

9 Omerovic, one of the individuals who was a guard testified to by Mr. Zikic

10 and Mr. Radic, I believe, who knew him, during the first prison scenario,

11 you can find that name in the military police list that the Prosecution

12 tendered, P590. He's number 15. And so the Prosecution is -- firmly

13 believes that this evidence demonstrates that the military police did

14 guard the prisoners in the first prison scenario, and we believe that this

15 evidence also supports the military police being the guards over the

16 prisoners both in the SUP as well as the building behind the municipal

17 building that we refer to as the prison. As you would -- as you probably

18 recall, Mirzet Halilovic was replaced by Atif Krdzic and I believe our

19 evidence will bear that out based on statements by Naser Oric as well as

20 documents.

21 You may also recall that Becir Bogilovic testified that at no --

22 that the civilian police was not in charge of detaining prisoners and you

23 will find his testimony on transcript on page transcript 625 [sic] when

24 asked about being in charge the civilian police being in charge of

25 prisoners he stated question: Did the civilian police detain Serb

Page 16532

1 prisoners during the month of September, October 1992?

2 The civilian police -- answer: The civilian police, no, no. The

3 civilian police could not do that.

4 Question: So is it your testimony the civilian police did not

5 detain Serb prisoners throughout the war or particularly between 19 April

6 1992 until March 1993 in Srebrenica municipality?

7 Answer: As for the civilian police, they certainly did not arrest

8 Serbs or detain them.

9 And so, Your Honours, we believe that this testimony from Mr.

10 Bogilovic who was appointed chief of the civilian police and later chief

11 of the public security, whose deputy was Nurif Jusufovic [phoen] based on

12 his clear testimony about the civilian police involvement in prisoners,

13 the Prosecution's evidence establish that in fact they had no involvement

14 in it as the Defence would have you -- would suggest.

15 JUDGE AGIUS: What's the transcript reference?

16 MS. RICHARDSON: Yes, Your Honour. It's T-6250.

17 JUDGE AGIUS: Thank you. I asked you because I had that

18 impression but if you look at line 17 of the transcript there is a 0

19 missing and it's misleading.

20 MS. RICHARDSON: Thank you, Your Honour.

21 JUDGE AGIUS: All right.

22 MS. RICHARDSON: There is absolutely no evidence that the civilian

23 police were involved in the prison either during the first prison scenario

24 time period or the second. There was no evidence that Hajrudin Avdic, the

25 president of the War Presidency was there, Bogilovic or Mr. Josipovic was

Page 16533

1 there and you may recall the testimony from a number of witnesses that,

2 yes, indeed Zele was a civilian police. The Defence seeks to somehow link

3 Zele, the one-armed police officer, with the prisoners because he was

4 present during the exchange of 007. Well, Your Honour, we submit that

5 there were a number of individuals present, as they were watching these

6 events unfold. The presence of Zele does not in any way lead one to a

7 logical conclusion that the civilian -- he being -- the civilian police

8 was over -- was a guard of the military police or guarded the military

9 police. In fact, a number of witnesses testified when asked about the

10 one-armed police officer did they see him in the prison. They stated

11 "no." And this was put to Prosecution witness Ratko Nikolic. You can

12 find that, that portion of his testimony at T-2726. He denied recalled

13 seeing a one-armed officer or a duty or a police officer as well as Ilija

14 Ivanovic said he never saw a one-armed man. And I submit to Your Honours

15 that someone with one arm is a very distinct physical attribute that most

16 people would remember and the Prosecution submit he in fact was not there

17 at the prison at any time. Branimir Mitrovic who was at the prison, who

18 stated -- who testified that he stayed with Mr. -- with Zele, he never

19 testified that Zele was at the prison at any time. He testified that he

20 spent time with Zele and this was from the point of the -- when he was

21 taken to the military police so --

22 JUDGE AGIUS: How much more do you have?

23 MS. RICHARDSON: Possibly ten minutes, Your Honour, or less.

24 JUDGE AGIUS: And then Ms. Sellers, you, how much time do you

25 require? Because at this time you have to understand I have got

Page 16534

1 responsibilities that I have to attend to.

2 MS. SELLERS: Your Honour, I should be no more than 10 to 12

3 minutes. I think Ms. Richardson also would be able to finish within the

4 next --

5 MS. RICHARDSON: Five minutes, Your Honour.

6 JUDGE AGIUS: Five minutes Ms. Richardson and how many?

7 MS. SELLERS: 10 to 12 minutes, Your Honour, maximum.

8 JUDGE AGIUS: To that would bring to us 5.00. Madam Vidovic or

9 Mr. Jones, how much time do you think you require to round up your --

10 MR. JONES: Your Honour, we'll certainly have to come back on

11 Monday.

12 JUDGE AGIUS: Then it's not a problem, all right.

13 MR. JONES: Yes, it was -- our continuing -- our finishing today

14 was premised on one hour for Prosecution and it's been more than two

15 hours.

16 JUDGE AGIUS: So, okay. So provided that we are coming back on

17 Monday, my problem would have arisen if you were excluding Monday. That's

18 the problem -- that's where the problem was but -- so -- I would suggest

19 that you try to finish still in five minutes and.

20 MS. RICHARDSON: Yes, Your Honour.

21 JUDGE AGIUS: And Ms. Sellers in ten minutes and then, of course,

22 the Defence will have the rest of the day and then we'll spill over

23 because we have questions too. I mean I have almost exhausted mine more

24 or less but we have questions. Plus, while we are at this, I might as

25 well address you on this. We are in agreement the three of us, to give

Page 16535

1 the opportunity to your client, should he wish to address the Trial

2 Chamber at all, to do so. Of course, first we will address you and, of

3 course, with the caveat that that would not amount to testimony, with the

4 caveat that he knows also that no one is forcing him or asking him to make

5 any statements and, of course, any statement would be after all due

6 consultations with you. All right? So we are telling you this. I mean,

7 you can choose to advise him not to. You can choose to advise him yes,

8 and you can advise him on what to say or not, but this is an option that

9 we are in agreement we should give to the accused. It not being in any

10 way testimony. All right? So I wish to make that clear. So the

11 indications are that Monday, of course, -- I mean this is what I suspected

12 in the first place. That Monday will be back here so Ms. Richardson,

13 please bring your intervention to a close and then Ms. Sellers and then we

14 see what we need to do.

15 MS. RICHARDSON: Thank you. In conclusion the Prosecution submits

16 that its evidence presented regarding the duties of the military police in

17 their processing the witnesses -- excuse me, the processing the prisoners,

18 escorting them to interrogation, transferring them as well as other

19 documents that are in evidence by Mr. Hamed Salilovic -- we submit that

20 the military police was an arm of the Srebrenica armed forces and I would

21 just refer Your Honours to the Blaskic appeals judgement, paragraph 114,

22 and this certainly addresses the issue of civilian versus -- civilian --

23 addresses the use of civilian clothing by combatants and the Prosecution

24 cites this portion of the judgement for the proposition that --

25 MR. JONES: Could we have a copy of that, please?

Page 16536

1 MS. RICHARDSON: We do apologise.

2 MR. JONES: Yes. We received Hilton and Ellen separately, but not

3 with those --

4 MS. SELLERS: Your Honour, could I apologise because we had been

5 informed that copies were handed up. That's -- our impression is that

6 they do have copies.

7 JUDGE AGIUS: I can hand mine and I can use Judge Eser's or

8 Judge Brydensholt's to make it easier. Okay.

9 MS. RICHARDSON: Thank you, Your Honour. So this proposition that

10 is posited in the Blaskic judgement is that irrespective of whether the

11 individual is wearing a uniform, civilian clothing at various occasion the

12 status, his or her status remains constant and so it's our position that

13 the military police, whether they were in -- as a member -- as an arm of

14 the Srebrenica armed forces, whether they were in civilian clothing or in

15 uniform were members of the Srebrenica armed forces for all intended

16 purposes and in conclusion, Your Honour, I believe that the evidence that

17 was submitted by the Prosecution can lead Your Honours to no other logical

18 conclusion but that the military police was subordinate to Naser Oric and

19 that they in fact guarded the prisoners, and the Prosecution proved beyond

20 a reasonable doubt that Naser Oric knew or had reason to know of the

21 cruelty that the -- his subordinates were engaged in, in the prison.

22 Thank you.

23 JUDGE AGIUS: I thank you so much, Ms. Richardson.

24 Ms. Sellers?

25 MS. SELLERS: Thank you, Your Honours.

Page 16537

1 Your Honours, I would like to go over one legal point. I'd like

2 to emphasise and possibly, Your Honours might consider just re-emphasising

3 certain points concerning necessity as a defence. Military necessity,

4 military object, and then military advantage.

5 Necessity as a defence. Your Honours have already set forth in

6 their Rule 98 bis decision that necessity can be a defence when an act

7 that is criminal has occurred and Your Honours referred to that as it

8 concerned the plunder counts which were dropped, and the seeking and

9 pillaging of food. Those criminal acts were excused by necessity. The

10 Defence would want to conflate that necessity and military necessity.

11 Military necessity is quite a different thing. Military necessity only

12 exists when they have clearly identified a military object and during an

13 attack one is going after a military object, and destruction that occurs

14 could be part of what is under military necessity. One does not go to

15 military necessity first for wanton destruction and then fall back and

16 say, oh, that was a military object. One has to be clear that what was

17 attacked was a military object and not a civilian object, such as an

18 entire village, an entire town.

19 The Defence in their closing arguments talk about military

20 advantage. If an area gives them a military advantage, well, Your Honour,

21 a military advantage in and of itself still has to be qualified by the

22 military objective, how the attack is carried out after identifying the

23 military advantage that might be a military objective is still measured by

24 military necessity. One has to look at the nature, location, and purpose,

25 and to see whether the area is making an effective contribution to

Page 16538

1 military action and whose destruction offers a definite military

2 advantage. The Defence's notion is much more generalised, that towns and

3 areas and villages offered a military advantage. Your Honours have to

4 look at international humanitarian law with the safeguards that it's set

5 up to provide. Now, it's possible that the rocket launcher in a town is

6 legitimate military object and then one will see the destruction that

7 occurred in going after the rocket launcher covered by military necessity

8 and the taking out of that rocket launcher might be in and of itself a

9 military advantage but a military advantage because a rocket launcher was

10 making an effective contribution to military action.

11 That is how Your Honours will have to look at the application of

12 humanitarian law to the situations that you were being asked to evaluate.

13 And that is an application that holds for all sides, all parties. Just as

14 the lobbing in of rockets or launchers into the town of Srebrenica without

15 distinguishing, without making a distinction between a military object

16 that might be the Domavija Hotel because soldiers are billeted there or

17 the PTT building because it's a military headquarter. Lobbing guns -- I'm

18 sorry, bombs or weapons into all of Srebrenica because it might offer a

19 military advantage to the Serbs is illegal. The illegality of that was

20 certainly felt and suffered by the people in Srebrenica.

21 This Tribunal, the Office of the Prosecutor, and Your Honours are

22 not looking for political parity. You're looking for the just application

23 of the law.

24 Your Honours, I was going to address issues of in essence perfidy,

25 when a civilian is really a combatant. There are many small things that

Page 16539

1 have come up. Let it please be known that the Office of the Prosecutor is

2 in no way saying that people who are in civilian clothing are per se

3 trying to fool and become war criminals. I believe that our reference

4 even to paragraph 114 of the Blaskic appeal sets that notion aside. And

5 there are many other small things that the Prosecutor could have answered.

6 The 13 questions that the Defence raised, some of those outright are just

7 positions of the Prosecution, they are not errors. Some might have been

8 very small errors, misreading of sentences. I'll let Your Honours be the

9 judge of that because I think the evidence reveals that. I'd like to

10 close by saying the following: "The Defence raised I think a very good

11 observation. Nedjeljko Radic said, I want Kemo. I would feel happier if

12 Kemo was here." Well, Kemo urinated in his mouth, used pliers to pull out

13 his teeth while he was detained, while he was outside of combat, hors de

14 combat, while he was a prisoner. The Prosecution agrees, Kemo, if tried,

15 is also probably a war criminal.

16 But this Tribunal was set up so that the Kemos don't even get near

17 the prisoners, so that those in positions of superior authority, prevent

18 the Kemos from being able to undertake those criminal acts. And when Kemo

19 wasn't prevented, Kemo is to be punished and if the superior, the military

20 superior of Kemo, doesn't undertake his duties, and he knew or had reason

21 to know, then it is that superior that is liable and that's how we protect

22 victims of all sides of the conflicts, Your Honour. Those are the

23 submissions of the Prosecution, prior to you undertaking your solemn duty.

24 JUDGE AGIUS: I thank you so much, Ms. Sellers.

25 Madam Vidovic, I don't know who is going first.

Page 16540

1 MR. JONES: Well, Your Honour, there are a number of substandard

2 matters which we would need the weekend to review so nonetheless I can

3 make use of the time by dealing with some more mundane documentary

4 matters.

5 I'm just going to make one response to my learned friend which is

6 that our client was not the superior of Kemo. And I may come back to

7 those matters but I want to say that right away.

8 Now, Your Honours, I have a table to respond to the Prosecution's

9 table of documents and perhaps the best use is just to distribute that and

10 to explain.

11 JUDGE AGIUS: Yes. Incidentally, while it's being distributed on

12 the matter that I referred to you earlier on, about giving you the

13 opportunity to your client, et cetera, of course, it goes without saying

14 that we will not put questions to him in any way and we will not allow the

15 Prosecution to put questions to him in any way. All right? So that that

16 goes without saying. In other words, he will have the last word, if we

17 come to that, but I think I need to make this clear to you.

18 MR. JONES: Thank you, Your Honour. It's a matter we'll consider

19 with our client, yes.

20 JUDGE AGIUS: Of course, it's up to you.

21 MR. JONES: Would Your Honours give me one moment?

22 Now, Your Honours I hope that the table is mostly self

23 explanatory. Basically we have taken the table of the Prosecution we have

24 added two columns, one to the far left and one to the far right, and in

25 essence in the far left we have a tick or a cross to indicate whether we

Page 16541

1 were relying on the document for the truth of its contents or whether we

2 were using the documents for another forensic purpose, namely, generally

3 speaking, to show lack of reliability or lack of authenticity of either

4 that document or other documents of a similar character.

5 In the far right we have -- far right column we have the Defence

6 comment with respect to each of those documents. So broadly speaking, I

7 would just say this: That as far as the Tuzla collection is concerned,

8 there is nothing inherently suspect about the Tuzla collection and we

9 never said there was.

10 JUDGE AGIUS: You don't need to address that.

11 MR. JONES: No, Your Honour. It's the combat action sheets and

12 that's set out in paragraphs 55 to 58 of our authenticity filing why we

13 say that those combat action sheets are not reliable and as Your Honours

14 know it's to do with the fact that the purported people filling in the

15 forms didn't do so and the fact that they are drafts, et cetera. As far

16 as Banja Luka collection is concerned we only rely on D965 and now that

17 came from the -- what's known as the EDF on the EDS system. EDF is an

18 acronym standing for -- something I'm not actually sure at present. One

19 moment, please.

20 Apparently it's evidence day forward. In any event, it's

21 something on EDS and you can't see the source when you find a document

22 there. So if you find a document you wouldn't immediately know this is

23 Banja Luka collection. But nonetheless that document has been confirmed

24 by a witness so that's why we don't have an any difficulty relying on it.

25 Sokolac collection, of course, is a collection which we say is per

Page 16542

1 se unreliable for the reasons set out in paragraphs 42 to 51 of our

2 filing. And so the exceptions are D22, D123, D172, and D431 and it's

3 simply because we also found those documents on the Drina Corps

4 collection. And so we have an independent source and therefore we are not

5 troubled by using those documents.

6 So that's our position on those documents. For P84 and P458, we

7 don't rely on those per se. The fact is they are Prosecution exhibits and

8 what we point out is in what ways those exhibits contradict the

9 Prosecution's case. So in other words, if Your Honours decide to rely on

10 P84 or if you decide to rely on P458, we say, well, then you also have to

11 consider that those documents purportedly say X, Y, and Z. It's in that

12 spirit in fact that most of our submissions are made on Prosecution

13 exhibits, that it's, other things being equal, if you accept that exhibit

14 you have to accept everything in it, and those are the parts of the

15 exhibit which we wish to draw attention to. So in other words if they are

16 authentic then certain consequences follow.

17 But we don't rely on them as part of our Defence case. I hope

18 that's clear.

19 Prosecution documents which we refer to in our brief, there is

20 P253 but that's the same document as D273 and you will have noticed when

21 we refer to them there is a hyphen between the two. And so we simply

22 refer to the fact that it's the same exhibit as our exhibit. And we

23 didn't object to it as a Prosecution exhibit because it's from the

24 Sarajevo archives.

25 And we are using it to prove something different from the

Page 16543

1 Prosecution and that's as set out in paragraphs 591 and following of our

2 closing brief. You'll see the use we make of that exhibit.

3 P443 we also refer to which is a video. Which we say it shows the

4 accused had a beard at the relevant time so again the point is really just

5 to show the Prosecution case is contradictory because their witnesses say

6 that the Naser Oric who came to the SUP and to the building behind the

7 municipal building was clean shaven and so we are pointing out, well, on

8 your exhibit he had a beard. Again it's not us relying on that document.

9 I refer to that one because it hasn't been shown to any witness. That's

10 what is special about P443.

11 I believe -- I could be wrong, but there was a question about

12 Prosecution objections to some of our exhibits, D36, D127, D725, D822, I'm

13 not sure -- yes, that's obviously not a matter for us. Your Honours, I am

14 in a position to deal just with the issue of guards at the prison, at the

15 SUP, and at the building, and there is a very specific point raised by His

16 Honour Judge Brydensholt yesterday. I am in a position to respond to that

17 but then I would prefer to adjourn to Monday and it's subject to a

18 technical issue which I see our CaseMap manager is possibly solving

19 because we would show a slide or two, a PowerPoint slide or two.

20 Your Honours I'm not sure when the break would be additionally. I suppose

21 we've still got a long time before any break.

22 JUDGE AGIUS: Well, the break would be at 6.15, 6.15. 5.15 -- we

23 started at quarter to five? Quarter to six is the break. Is the next

24 break. So it's quarter to six. That's basically another three-quarters

25 of an hour.

Page 16544

1 MR. JONES: Yes, Your Honour, I think I would prefer actually to

2 deal with it on Monday.

3 JUDGE AGIUS: That's -- we are -- it's okay with you?

4 [Trial Chamber confers]

5 JUDGE AGIUS: So that's it. We'll -- is the sitting in the

6 morning on Monday or in the afternoon? In the morning. I know that I had

7 asked Mr. Pittman to reserve the courtroom. So that has been reserved.

8 Courtroom II? Courtroom III. Courtroom III, up here in the morning.

9 So and on Monday, we certainly need to conclude.

10 I thank you so much. Have a nice weekend and we'll meet and

11 conclude on Monday morning. Thank you.

12 --- Whereupon the hearing adjourned at 5.05 p.m.,

13 to be reconvened on Monday, the 10th day of April

14 2006, at 9.00 a.m.