110214IT

Page 52175

1 That's all. I hope that this is clear, and if not, again I take

2 the blame and would be prepared to clarify. Thank you very much.

3 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, you may proceed.

4 MR. KARNAVAS: President Antonetti, Judge Prandler,

5 Judge Trechsel, Judge Mindua, good afternoon, and good afternoon to

6 everyone in and around the courtroom and anyone who may be watching these

7 proceedings outside the courtroom.

8 Closing argument, also known as summation, is perhaps the most

9 exciting stage of the proceedings for a trial advocate. It's the

10 opportunity for the advocate to show and display his oratorial skills,

11 the craft of narrating a persuasive narrative that carries the day. He

12 wants the Judges or the trier of fact if it's a injury, to be mesmerised

13 by every word that the advocate is saying.

14 In fact, closing arguments is considered so significant that when

15 we're learning the craft, we're told never ever tell the trier of fact

16 that what you're saying is not evidence. You want the Judges to believe

17 or the jury to believe that what you're saying is the evidence. Well,

18 for the first time, in my career at least, I'm going to break away from

19 that tradition, and I will urge the Trial Chamber to be ever-mindful that

20 what we are saying here today and what we have said in our final briefs

21 is not evidence. It is not evidence. It's argument. It's perhaps what

22 we may want the Trial Chamber to accept, to believe, and to act upon, but

23 it is not evidence, not what I say, not what the Prosecutor said, or what

24 my colleagues will say. Neither is what is contained in the final

25 briefs.

Page 52176

1 We've spent close to five years in this courtroom. We have a

2 transcript of 52.000 pages. We have 9.000 documents. That's the record,

3 and in there lies the truth. In there lies the answers that you must

4 seek in making a final determination. However imperfect the record may

5 be, and we may disagree on whether everything came in that we wanted to

6 be part of the record, and I -- I don't think that there is a single

7 person here or party that is absolutely satisfied, but that's the way it

8 goes. The record is what it is, and personal knowledge or preconceived

9 impressions or popular assumptions of what is believed to be fact is not

10 the record. And had the Trial Chamber instructed us to limit ourselves

11 to one and only one sentence, albeit we could use a semicolon to stretch

12 it out a little bit, I would say pay close scrutiny and attention to the

13 record, the entire record. Therein lies the answers to whatever -- to

14 whether the Prosecution has proved every element of each and every count

15 beyond a reasonable doubt. And that would be it. Effectively, or I

16 should say essentially, our job is finished here. We may wax eloquently,

17 but the real job, the real task at hand is before you, because you have

18 to go through the record.

19 Now, the Prosecution stressed that the Defence, and it seemed as

20 if it was a universal declaration, that we parsed words. We selected

21 snippets of documents and conveniently and creatively took facts out of

22 context.

23 I don't speak for the Defence. I speak for Dr. Jadranko Prlic,

24 and I can assure Your Honours that we take exception. Ms. Tomanovic and

25 I categorically reject this assertion, and we submit that these are

Page 52177

1 calculated tactics to deflect and misguide.

2 Now, in reading the Prosecution's final brief, in listening to

3 the closing arguments by these very, very talented and skilful

4 Prosecutors, I was reminded of the opening lines delivered by Socrates in

5 his closing argument which has faithfully been recorded by Plato in the

6 "Apology":

7 "How you must felt, O men of Athens, if hearing the speeches of

8 my accusers I cannot tell, but I know that their persuasive words almost

9 made me forget who I was, such was the effect of them, and yet they have

10 hardly spoken a word of truth."

11 The manner in which evidence was assembled by the Prosecution in

12 the final brief, at least insofar as Dr. Jadranko Prlic is concerned, is,

13 at a minimum, disquieting. The Prosecution seeks to convict Dr. Prlic by

14 contorting the facts into a procrustean bed, and sadly, it would appear,

15 that the Prosecution has forsaken its role to seek justice, not merely to

16 convict.

17 The United States Supreme Court in Burger v. United States

18 reminds us all that while the Prosecution may strike hard, it is not at

19 liberty to strike foul.

20 Now, in preparing for my closing arguments, I came across a text,

21 "A Modern Legal Ethics: Adversary Advocacy in a Democratic Age," and

22 Yale Professor Daniel Markovits writes as follows:

23 "Distinctive professional commitments of prosecutors may also be

24 understood, from within legal ethics, as reflecting the fact that rather

25 than representing an ordinary client before a neutral tribunal, the

Page 52178

1 prosecutor represents one arm of the state before another. At least in

2 principle, the state has no proper interest in victory for its own sake

3 because it should never pursue injustice. The state does not need a

4 bulwark against authority because it is the authority. The prosecutor's

5 distinctive commitment to the truth and fairness, therefore, elaborates a

6 role whose genetic structure departs from the structure of adversary

7 advocacy."

8 And I think this is exactly what Judge Hunt was referring to in

9 his refrain to all of us, and I believe in particular to his fellow

10 brethren and to this institution in its legacy when he said:

11 "The Tribunal will not be judged by the number of convictions it

12 enters but by the fairness of its trials. The duties and

13 responsibilities of the Prosecutor differ from and are wider than the

14 Defence. This is unequivocally spelled out in the ICTY standards of

15 professional conduct for Prosecutor counsel."

16 And we see that in Article 2, and I quote where it says that the

17 Prosecutor is duty-bound to "assist the Tribunal to arrive at the truth

18 and to do justice for the international community, victims, and the

19 accused."

20 And if I may quote from Robert Jackson as well, he reminded an

21 audience of federal prosecutors when he was the Attorney General of the

22 United States back in 1940:

23 "Your positions are of such independence and importance that

24 while you are being diligent, strict, and vigorous in law enforcement,

25 you can also afford to be just."

Page 52179

1 The Prosecution in this case as in any other case before the ICTY

2 represents one organ of the Tribunal before another, and this Tribunal

3 represents by virtue of its creator and its sustainer the United Nations,

4 humanity itself. Thus in principle, the ICTY should not and does not

5 have an interest in the Prosecution's victory for its own sake despite

6 that appalling sign that hangs in the lobby of this august institution

7 informing all visitors as they walk in the mission of this institution,

8 the raison d'etre of this Tribunal, and I quote, "Bring war criminals to

9 justice," as opposed to just saying that this institution is for justice.

10 Sadly, that's the same motto you will find when you open up the ICTY

11 web site.

12 The United Nations should not and does not have an interest in a

13 victory for its own sake despite the enormous amount of money it has

14 spent trying this case, and as the Prosecution should not be pushing --

15 pursuing sharp practices that are designed to obfuscate or conceal the

16 truth for the sake of winning the case, and I've noted that in the past,

17 we should be given the needle, not the haystack. The members of the

18 Trial Chamber should not shy away and should not equivocate in their

19 obligation to hold the Prosecution to the task of carrying out their

20 burden and evaluating the evidence with equal measure and standard.

21 There is no balancing test to be applied in order to even the odds, even

22 though the odds are stacked against the Defence. The Prosecution enjoys

23 no special privileges because it is a member of the ICTY and, by

24 extension, a member of the UN.

25 Now, in keeping with the instructions of the Trial Chamber, we

Page 52180

1 will focus our closing arguments on responding to the sections of the

2 Prosecution's final brief primarily related to Dr. Prlic found in

3 paragraphs 361 to 526. We will also be touching on other parts of the

4 final brief and the closing arguments, though - and it's not complaint,

5 but just an observation - five hours is about one hour per year. A lot

6 of work to do, and however we were able to slice it and dice it, we

7 basically found ourselves in a very difficult situation to try to get

8 everything done and to go over the entire brief, and that's not going to

9 be our intention at this point. Nor is our intention to shift the blame

10 or to deflect responsibility.

11 Dr. Prlic does not shy away from any of the decisions he signed

12 on behalf of the temporary executive authority, the HVO HZ-HB in his

13 capacity as the president. He was unambiguous and categorical on this

14 matter when he gave his statement back on the 5th of May, 2008. These

15 decisions and these conclusions, and the Prosecution can use these catchy

16 phrases like "the Prlic decision," "the Prlic ultimatum," "the

17 Prlic-Stojic proclamation." More like titles out of a Robert Ludlum

18 book. They can do that all they want. The end of the day, those

19 decisions were of the collective, and the collective was responsible for

20 taking these decisions. Dr. Prlic signed those decisions, and he's not

21 shying away from the fact that he took part of and signed all of those

22 decisions.

23 Now, in saying that, I must say with some regret that those

24 decisions were also part of the decisions taken by Accused Bruno Stojic.

25 If I may paraphrase Ms. West's eloquent submissions, it is wholly

Page 52181

1 unrewarding exercise in linguistics gymnastics for Mr. Stojic, in this

2 case, to claim that the appointments signed by Dr. Prlic were Prlic

3 appointments as opposed to HVO HZ-HB appointments that were made after

4 Mr. Stojic, among all the other members of the HVO HZ-HB, had voted on

5 them. And I'm referring to paragraphs 286, 302, and 307 of the briefs.

6 Although we've heard so much testimony on that, whose appointments were

7 they, what was the power or the authority behind the signature.

8 And The same thing goes with the decision, including the

9 decision -- all of the decisions, including the decision on 15 January

10 1993. While we submit that the decision was made after a good-faith

11 belief that what had been represented by General Praljak was true,

12 accurate, and complete, and that the decision on its face is neither

13 illegal nor sinister in keeping with what was happening, keeping in mind

14 that in Geneva you have negotiators that are negotiating and some are --

15 the negotiators are encouraging at least two of the parties to try to

16 reach an agreement and the negotiations continue on to Zagreb;

17 considering the events that were happening elsewhere, where allies were

18 actually at each other and not focusing on the real danger, on the real

19 front; so while that decision on its face was neither illegal nor

20 sinister, for Mr. Stojic now to claim that it was the Prlic decision, in

21 paragraph 165, incidentally, among elsewhere, is not a -- is not only

22 wholly unrewarding, but it's counter-productive because there's so much

23 evidence on this issue. And its even contradicted by his own witnesses

24 who came in and testified as to how decisions were reached and whose

25 decisions they were. And I submit it is irrationally exuberant to assume

Page 52182

1 that these sorts of tactics yield anything other than fool's gold for

2 anybody. Shifting responsibility for trying to hide by any party or

3 parsing out words will not yield benefits, especially since there are --

4 there is evidence.

5 And an advocate has the responsibility, has the responsibility,

6 according to -- if I may quote Henry Lord Brougham in 1820 in Queen's

7 Caroline's case, he says:

8 "An advocate in the discharge of his duty knows but one person

9 in all the world and that person is the client, to save that client by

10 all means and expedience and at all hazards and costs to other persons,

11 in amongst them to himself. That's his first and only duty, and in

12 performing this duty he must not regard the alarm, the torments, the

13 destructions which he may bring upon others."

14 In other words, counsel is expected to display a degree of zeal

15 in his representation, and of course in doing so we're all required not

16 to overstep certain boundaries, and I hope and I pray that during my

17 representation of Dr. Prlic in the last five years, although I have

18 tested everyone's patience no doubt, that I haven't overstepped that

19 boundary in representing and zealously representing Dr. Prlic.

20 Now, before I turn to the section relating to Dr. Prlic, it

21 merits focusing a little bit on the Prosecution's assertions in paragraph

22 3 of the final brief. In its remarks during the closing arguments, and

23 on specifically speaking about the remarks about Defence witnesses

24 because they were Croats. Now, there was this caveat that they're

25 insiders, and of course it was said, "Well, in principle, nothing's wrong

Page 52183

1 with that. Croats have every much right to appear in this institution

2 and give testimony as anyone else," but given that the Prosecution

3 considers them as insiders, every single one of them, without exception,

4 basically, and of course it would go without saying that they're part and

5 parcel of the alleged JCE, they're asking the Trial Chamber to discount

6 their testimony, to ignore their testimony.

7 Now, the Prosecution has worked very hard in this case, and

8 they're honourable people, and you cannot be in this case without getting

9 a little bit subjective. I think I've been accused of that. But I have

10 to say, and I say this with all regret, it actually pains me to say this,

11 that throughout the final argument, we heard or there was this undertone

12 of this dark and unseemly theme that permeated throughout the closing

13 argument, at least that's how it was perceived, and keep in mind the

14 shoes in which the accused sit here, and keep in mind that the extension

15 of the accused are all the witnesses that came to testify on their

16 behalf, but this dark and unseemly theme was Croat equals Nationalist,

17 equals Ustasha, equals Nazi. That's how it was perceived. Perhaps it

18 wasn't meant that way. Perhaps it was just using examples. But I dare

19 say that the -- this -- this theme that ran so deep and so long and so

20 consistent throughout their presentation was disquieting. And imagine if

21 I were to come into this courtroom and say don't trust Muslim witnesses.

22 Don't give them any credibility, because obviously they're going to be

23 sympathisers of the Muslim cause that Izetbegovic, Silajdzic, Ganic and

24 the rest were pursuing, that would be shameful.

25 I think and I submit that witnesses should be judged not on the

Page 52184

1 basis of their religious origin, their occupation, or professional

2 affiliation. Simply because a witness is a non-Croat or is affiliated

3 with a UN or EU or some international organisation, or comes or

4 originates from a country that happens to be a permanent member of the

5 Security Council, does that mean that they start with a score of 100 per

6 cent credibility and then Croats that appear on behalf of the Defence

7 start with zero? No witness gets a free pass. No witness is more

8 credible than another on the basis of the criteria the Prosecution seem

9 to be suggesting, and no witness should benefit or suffer from

10 preconditions or prejudice simply based on whose behalf they appear.

11 The witnesses who testified on behalf of Dr. Prlic were not

12 without substance and accomplishments. All held high responsible

13 positions. We had a former prime minister. We had several former

14 ambassadors. We had a minister of finance of Bosnia-Herzegovina. We had

15 a former minister of foreign affairs for the Republic of Croatia who had

16 served as ambassador to the United States. And let me park here. Why is

17 he less credible than, say, Galbraith, who took the stand and admitted

18 that during the embargo the US was breaking it and he was assisting in

19 his capacity as ambassador of the United States? So why are the Croat

20 witnesses less credible than the Prosecution witnesses?

21 The list goes on as far as all of the witnesses that testified on

22 behalf of Dr. Prlic, and they were tested. They were tested under

23 cross-examination. We did not submit any statements that were crafted

24 over a period of days - and I'm going to talk about that a little

25 bit - and then submit them as part of the direct examination of the

Page 52185

1 witness. I have a lot to say about that. I've said it before, and I

2 apologise, but you may have to hear it again, and I think it's important,

3 because it goes to the weight to be given to the witness.

4 The Prosecution dismisses the Defence witnesses and denigrates

5 them publicly as hardcore nationalists committed to the cause of

6 reconstituting the 1939 Banovina. And then they ask you, Your Honours,

7 to do likewise, and we urge you to treat all witnesses with equal care

8 and equal consideration and just examine the record. And the record

9 means everything. It don't mean just the Prosecution's direct

10 examination or just the Prosecution's cross-examination. We used to have

11 this wonderful rule here. It was called 98 bis. Based on the

12 Anglo-Saxon principle of submitting a motion for a judgement of acquittal

13 after the Prosecution put on its entire case. If they didn't meet their

14 burden at that stage, then counts or the entire case could be thrown out;

15 the principle being that, the Prosecution carrying the burden would have

16 to go forward and put on its case.

17 Well, for a variety of reasons, none of which make sense to me,

18 but I don't count, we didn't get rid of the Rule. We kept the Rule, but

19 we took the teeth out of it. So now we submit a 98 bis brief, or some

20 parties do, which I consider nothing other than a reconfirmation of the

21 indictment. Why? Because you're asked to disregard everything that came

22 in from the Defence, all the cross-examination, all the documents. Just

23 look at what the Prosecutor presented and then see whether based on that

24 a reasonable trier of fact could find a guilty verdict. Well, what's the

25 purpose? That's the same standard, Your Honours, I submit, that Judges

Page 52186

1 use in confirming indictments. It's the same standard. And then if you

2 want to add a little salt to the injury, after they win the 98 bis, then

3 all of a sudden the case has gotten stronger. It was the same case. You

4 never bothered to look at the Defence evidence. But now we're saying the

5 record, the record, is everything. So on direct examination, you want to

6 pay close attention to the answer, not to the question, because the

7 question, if it's suggestive, then the answer doesn't have much value.

8 On cross-examination, however, we submit, and I know it's

9 somewhat different here in Europe or for some Judges who come from the

10 civil law tradition, but on cross-examination, the evidence is both the

11 question and the answer combined, and in evaluating a witness's

12 testimony, obviously you want to look at their entire testimony. You

13 look at the documents, and then you're going to look at the other

14 evidence together. Of course, I'm not saying anything that Your Honours

15 don't know, and I apologise for being presumptuous enough to even go into

16 this area, but the Prosecution when you read their brief, it's as if this

17 is a 98 bis proceeding. They ignore everything and then they ask you

18 also ignore the Defence witnesses, ignore them because they're insiders.

19 Well, who else are we going to get? We're trying to figure out

20 how the system worked over there. That's first and foremost. So who am

21 I going to get? Somebody from some other country?

22 Keep in mind, Your Honours, and I can give you the citations, I

23 don't have it right offhand but it's here some place, we'll get to it,

24 throughout the course of this five-year trial we've had Prosecutor after

25 Prosecutor come in and ask, "What's a constituent person? What's a

Page 52187

1 constituent nation?" After five years. Well, if a witness has an

2 answer -- there was one great exchange. The Prosecutor says:

3 "So, there were three groups. Three groups. And you wanted to

4 be constituent nations."

5 And the witness, it was Batinic, by the way, said:

6 "No, we were constituent peoples. We were constituent nations.

7 It's not that we aspired to be, we were."

8 Well, if you don't understand that fundamental principle, then

9 obviously you're going to have some problems. You're going to have some

10 problems that were same way, we submit, that Biden, Vice-President Biden

11 today had, who was a senator back then, and gets elections from Silajdzic

12 in saying:

13 "Well, in Bosnia everybody is Bosnian. Who came up with this

14 idea that there's Serbs and Croats? They're Bosnian Roman Catholic and

15 they're Bosnian Orthodox."

16 And we saw that, and we even see that from other witnesses, and

17 we'll get to that hopefully. Hadzihasanovic said it. And of course if

18 you're not aware that there's a specific characteristic to being a

19 constituent nation in this fragile environment, knowing what is happening

20 around, and knowing the disintegration of Yugoslavia, obviously you're

21 going to have some challenges. The same thing we saw when we came to

22 social ownership. There was one great exchange. I believe it was

23 Ms. West that asked the question, and it was, well, I guess two or three

24 people owned the place. That was her concept of social ownership. And

25 then we see these internationals, which we're going to get to, that come,

Page 52188

1 not a one of them, not one, and I searched, I searched like Diogenes

2 searching for the truth. I searched for one of them to say, "You know

3 what, I read the documents. I read -- I got ahold of the Official

4 Gazettes, I read them, I analysed it, or I had somebody translate them

5 and analyse them to me." Not one single witness of all those

6 internationals that went in theatre, not one of them bothered to look.

7 What happened? They came with their preconceived notion planted

8 in Zagreb, because that was the place where they first arrived to, they

9 got their little orientation, and they were all told, there's Bosnia,

10 there's a map, and there is this place over there, and it's a mini state.

11 It's self-proclaimed. Self-proclaimed. And so that was the beginning.

12 That was how they arrived, with that notion in mind. And we have

13 witnesses and we will get to it who say, well, you know, Dr. Prlic was

14 the president. In my country, or as I understand, a president usually

15 has powers over the minister of defence, the military. So obviously he

16 would have. And by the way, I saw him in a room, and there was the

17 minister of defence. There wasn't a minister. It was a -- the head of

18 the Department of Defence, and there was somebody who was from the Main

19 Staff. So we put two and two together. In my country the president

20 controls the military. He controls the minister. The minister's there.

21 The Main Staff is there. Uh-huh. Go no further. Do no more analysis.

22 With the exception of one, Your Honours; with the exception of

23 one witness, and the witness was BH. With the exception of that witness,

24 every single one said that Dr. Prlic's office was always open. He was

25 always willing to provide information. All they had to do was ask.

Page 52189

1 Now, there was -- there are occasions, and there is one in

2 particular, because I don't want to mislead the Trial Chamber, where

3 Watkins comes in, I believe it was Watkins, who says, "Well, I asked them

4 some information about the exchange of prisoners and some humanitarian

5 aid, and he -- he directed me to other folks, Raguz, and Pusic." Well,

6 those are the subdepartments that deal with those -- those issues.

7 That's why he pushed them. It was also interested -- was also

8 interesting is that -- with Watkins, is that when he comes to meet with

9 Dr. Prlic, he says that Dr. Prlic was just as much interested in finding

10 out what's happening in Central Bosnia, because that's where Watkins was

11 coming from.

12 But my point is this: None of these folks who had access to

13 Dr. Jadranko Prlic every bothered to ask him, "You no what? Tell me how

14 this place works. Tell me about your function, because everybody is a

15 president. Everybody seems to be the head of a department. So how does

16 this work? What is this Presidency? What is a collective body?" I

17 never heard of collective body. I come from a Western country. We have

18 a democratic system, but to assume that just because your system works

19 one way and that everything is going to work the same way in

20 Bosnia-Herzegovina is rather arrogant, and I dare say that we were forced

21 to bring people who would be able to sit down and explain to you how the

22 system functioned.

23 And think about it. We -- we told you that Sarajevo was under

24 siege, that the Central Bank wasn't functioning, that the payment bureau

25 system wasn't functioning. It wasn't functioning because the electrical

Page 52190

1 grid was down, and telecommunications were down, and the entire network

2 was linked.

3 Of course, it would have been nice for the Prosecution to figure

4 that one out on their own before they went ahead and said, "Well, you

5 know, they're trying to Croatise. They're using the Croatian dinar."

6 Well, what was the option?

7 Then we brought in a witness, a gentleman by the name of

8 Primorac. You may recall him. He was almost 7 feet tall. I don't

9 believe Judge Prandler was here at the time. Very tall gentleman, thin.

10 In fact, he was complimented by Mr. Khan here because of his youthful

11 looks. The gentleman was about 70 years old, and Mr. Khan was taken

12 aback when he saw the gentleman's age, birth -- and he was the minister

13 of finance for Bosnia-Herzegovina early on in 1992. Very successful

14 businessman, Ph.D. in economics. And at some point he says, "We had to

15 leave Sarajevo, because you couldn't function there. You couldn't have

16 regular business transactions because of the telecommunications system

17 was down."

18 He talked about the different currencies that were being used;

19 coupons. All right. He's a Croat. Well, you know, he went on. He left

20 and he went to Croatia, and he stayed there. Never got involved in -- in

21 the Croatian Community of Herceg-Bosna or the Croatian Republic of

22 Herceg-Bosna. But let's just say for one second that the gentleman

23 provided testimony that was unhelpful or untruthful or that he stretched

24 things a bit, because after all, the Defence may be trying to do that.

25 Did the Prosecution bring in their own expert? Did you ever hear

Page 52191

1 any expert from the Prosecution to rebut the evidence that the Central

2 Bank wasn't functioning? But who else could we bring in? We brought in

3 somebody from Slovenia. Now, he wasn't attacked. At least I wasn't

4 aware that he was lumped in with the other Croats, but he was a Defence

5 witness. But he testified about how the system functioned there. He

6 testified that in their system, the former Yugoslavia, there was this

7 transitional period in how he talked about the collective, and he talked

8 about self-management. It was their way, their system. For better or

9 for worse, it worked for them. And it's -- there is this transition

10 where there's some decentralisation, where power is leaving Belgrade and

11 slowly going to the various republics, and from the republics also

12 there's a great deal of self-management at the municipal level, and

13 they're having to take care of certain functions. And he talked about

14 the funds. He talked about the pension funds, the educational funds, the

15 healthcare fund, and how from the local community taxes would go up and

16 then the funds would be replenished from those taxes.

17 And, of course, his testimony mirrored the testimony that we

18 heard from Tomic. Now, why did it mirror? Because somehow he was

19 connected to the project, to the JCE? No. Because he was from Slovenia,

20 which was part of Yugoslavia, and he grew up and was educated in that

21 system, and he was able to explain exactly how it functioned, and then he

22 was able to have a certain appreciation of the legislation that was

23 coming out of the Croatian Community of Herceg-Bosna. He was also able

24 to appreciate the limitations that the folks over there, not just in the

25 Croatian Community of Herceg-Bosna but everywhere in Bosnia-Herzegovina,

Page 52192

1 Tuzla, Jablanica, else -- the Posavina area. He was able to explain the

2 challenges that they all had because you didn't have the payment bureau

3 functioning, which was a major, major, major institution. It was the

4 bloodline, if you will, for the economy. And so we brought him and we

5 brought in Tomic.

6 Now, of course, Tomic is connected to Prlic because he's part of

7 the Croatian Community of Herceg-Bosna. But does that mean that we need

8 to throw out Tomic's testimony completely? He was questioned for days

9 and days on end, and there's one wonderful exchange, I believe we put it

10 into our final brief, where a question was posed by Judge Antonetti, and

11 he tried to explain that part of the purpose was to bring some normality

12 out of this total chaos. The Prosecution would have you believe that

13 everything was being provided for by Sarajevo. Well, was there any

14 evidence to that? Was there any evidence? The only evidence that came

15 out was where we -- we brought in evidence that a bundle of money, new

16 printed money, came out. One-third went to the Croatian Community of

17 Herceg-Bosna. It couldn't be used in places like Mostar, because you

18 couldn't use it as hard currency. They shifted over to Central Bosnia,

19 and that's where they were using it.

20 And what am I trying to explain with all of this? What I'm

21 trying to say is before denigrating the -- the Defence witnesses, it

22 might have been good for the Prosecution, first and foremost, to put

23 their case properly before you before making assertion as to Croatisation

24 because of the use of the Croatian dinar. They should have been able to

25 tell you that there was absolutely no need for that, that the Bosnian

Page 52193

1 dinar or Yugoslav dinar or something local was functioning. Did they do

2 that? No. But they had an opportunity afterwards. Nothing prevented

3 them from saying, "You know what, we're going to bring in an expert.

4 We're going is to show the Prlic Defence. We're going to impeach

5 Primorac, who had nothing to -- he wasn't part of this project. We're

6 going to impeach Cvikl, the expert, and we're going to impeach Tomic."

7 Did they bring in on rebuttal? Did they make a submission? No. They

8 had one expert. They never put the expert on. Wonder why. Wonder why.

9 Be circumspect with the Prosecution's evidence as the Prosecution

10 demands, Your Honours, as you be with the Defence evidence. Adopt a zero

11 tolerance for the parsing of words, the creative constrict of theories

12 and conclusion that are based on selective extractions of phrases and

13 text that distort the meaning or deliberately avoid pesky evidence. It

14 seems that the Prosecution has an aversion, has an aversion to evidence

15 that just gets in the way of their theory of the case. I don't mean to

16 make light of it. I mean, this is a very serious occasion, but it just

17 seems to me that as much as they try to portray that there is this huge

18 joint criminal enterprise and that Dr. Prlic is this and Dr. Prlic is

19 that, when you look at their evidence, and I do invite your close

20 scrutiny and attention, we spent the last five weeks, Your Honours, going

21 through their footnotes, and if we are unprepared today, it is because

22 the perfect got in the way of the good. We tried to go through all of

23 the footnotes in order to bring every single -- every single situation

24 where the Prosecution, we believe, stretched the truth a little bit, was

25 trying to be economically frugal with the truth, where they cut a word

Page 52194

1 here, take a phrase there, and try to construct some kind of a narrative.

2 And there's lots of situations, and we're going to go through some of

3 that Your Honours. We won't be able to go through all of them, but we

4 will do that.

5 Now, this is a big case. Mistakes are going to be made.

6 Mistakes are going to be made. They're honest mistakes. They're

7 honourable people on both sides of the aisle, and of course we

8 shouldn't -- no ill-intentions can be drawn from those mistakes, but as

9 Oliver Wendell Holmes Senior, the father of the great jurist -- American

10 jurist Oliver Wendell Holmes Junior, once wrote: Every dog knows the

11 difference between being kicked and stumbled over, and I think that's so.

12 Be mindful. And of course, Mr. Scott was very wise to tell us all,

13 what's sauce for the goose is sauce for the gander, and we're mindful for

14 that.

15 Now, I'm going to begin by going through some of the witnesses in

16 a moment, Your Honours, and I'm not going to spend my time trying to

17 convince you or trying to persuade you, trying to find that you go in my

18 direction. It's a little too late in the game for that. But I am going

19 to try, hopefully, to get the members of the Trial Chamber to have an

20 abiding appreciation of the record and to simply raise the consciousness

21 of skepticism, so that after you hear all of the closing arguments and

22 after you've read all the final briefs, and you begin the hard task of

23 going through the record, that you do so with this current of skepticism

24 permeating throughout your consciousness. That's the best, I think, I

25 can achieve at this point, nothing more. And as I said, what I have said

Page 52195

1 is not evidence, although I am trying very hard to demonstrate that

2 there's more than a well-crafted brief. There's more than a nice speech.

3 You have to look at the evidence.

4 Now, all of these internationals, and I'm going to begin with

5 them, as I said, had one thing in common. They virtually all came

6 totally uninformed. They virtually all came and found Dr. Prlic's office

7 open and ready to provide them with information.

8 When they came to testify, virtually all of them -- not all of

9 them. Most of them, I should say, had these narratives that had been

10 prepared. And the one that I want to focus on most to start with,

11 although the witness is by no means the exception, is Witness BA, Witness

12 BA.

13 Over a period of four days, the Prosecution sits with the

14 witness, provides the witness documents, provides the witness documents

15 the witness has never seen, and then over a period of four days a

16 narrative with titles, subtitles, sub-subtitles, is prepared. There is a

17 draft, there is another draft, until we just get it right.

18 Now, we then present that statement here, and we move it into

19 evidence because we're going to save some time. Major witness; save some

20 time. Four days getting that statement just right. Comma in the right

21 place, right adjective. Here's a document, and if you haven't seen it,

22 who knows, it might help you, just might help you refresh your memory.

23 And I submit that if this were to occur in any of our jurisdictions, that

24 statement would be thrown out of court. That would not be acceptable as

25 a statement, even if the witness were to come in and say, "I adopt that

Page 52196

1 statement." Why? Because is it really the witness's statement?

2 Now, imagine if we were in a country where you have an

3 investigative judge, and the investigative judge during the investigation

4 comes up with a witness, and rather than ask the question, get the

5 answer, question, answer, question, answer, write it down or tape record

6 it, I mean imagine all the millions of dollars we're spending, we don't

7 even get a tape recording, okay, never mind a video, that's asking for a

8 bit too much, but we could tape record at least. So imagine now you had

9 this investigative judge, and he spent four days showing some documents

10 to the witness, letting information creep into the memory of the witness,

11 drafting the statement of the witness, and then saying to the witness,

12 "Here, could you take a look at it and see if you need to edit it a

13 little bit?" And even in those instances, the witness would come and

14 then have to re-edit again, but imagine if that were to happen again.

15 How much value would that statement have? Zero.

16 What's the purpose of showing a witness documents that the

17 witness has never seen when you're there to extract information? Who?

18 What? Where? Why? How? Explain. Describe. Those are the magic

19 questions that any good investigator needs to act. Not "Here are some

20 documents. I know you haven't seen them. I know you haven't seen them,

21 but hey, maybe that will jiggle your memory. Maybe you'll come up with

22 something."

23 And then there's Witness BB, for instance. There's one -- one

24 exchange where Witness BB is commenting on a document that wasn't

25 produced by BB. It was produced by somebody else, and it's unclear

Page 52197

1 whether that somebody else was actually at the meeting describing the

2 events of the meeting, and if it weren't for some questioning from the

3 Bench, one would never know that. It comes out from the Bench there's a

4 question because sometimes, despite all our complaints, and I must say

5 I've been humbled having read the record. Sometimes you think you're

6 hearing things, but when you see them on paper it's a little bit

7 different, because maybe the heat of the moment all these other

8 distractions are going on. Some of the Judges' questions are right on

9 point. They come out and they say, "Wait a second. There's something

10 doesn't quite look right," and then the witness says, "Well, I wasn't at

11 the meeting." Yet the witness now has testified about the meeting.

12 Or, for instance, where you have another witness, and this would

13 be BH, who puts quotation marks, and when pressed, "Was that a quote?"

14 "Well, it was the essence of what was said." "Well, how do we know

15 whether it was actually said?" "Well, it's close enough." "Did you put

16 the quotations marks there?" "No." "Who did?" "Well, the person who

17 was taking the statement." Well, how do we know when it's a quote and

18 when it's not a quote?

19 And of course, it may sound like an old Defence trick, which it's

20 not, when asked, "Well, can you produce some notes? Did you have any

21 notes?" Yes, the witness had notes. "Can you produce them? Can you

22 produce those notes so we can see what's in your statement that you

23 drafted over a period of days with the ICTY investigator and the

24 documents, documents again that you're seeing that you'd never seen

25 before, it might help you with your narrative, can we see the notes?"

Page 52198

1 And the answer is, "No."

2 All right. Some never had notes. Some have come in and said,

3 "You know what? I just can't remember. It's been 15 years."

4 Well, I can understand that. I think we all can understand that.

5 Some of us can't remember what happened two days ago. But then on a

6 critical point, "Ah, that will never leave my mind. This is exactly what

7 was said." Okay. Fair enough. It's one of those things, you know, like

8 me being able to recall certain events in the courtroom. All right.

9 Well, can we see a report, something? Do we have notes? No

10 notes. Okay. Fine. How about a report? How about let's do a little --

11 do a little foundation. "Were you required to provide information up the

12 chain," you know, "on important meetings?" "Yes." "And when something

13 significant was heard, were you required to put that into your report?"

14 "Yes." "And would you have done that?" "Well, most likely." "Okay.

15 Most likely, I'll take that. All right."

16 Now, and here's the million dollar question: "Can you please

17 help me out here. Not that I doubt you, but show me a document. Show me

18 some place because, you know what, with some of these institutions, the

19 Defence does not have access to their files." They don't have access to

20 their archives, and Your Honours know that very well. So if you're going

21 to say something, back it up. "Well, I might have written or I must have

22 written." "Okay. Well, you gave a statement to the Prosecution." You

23 would think that the Prosecutor or the investigator, actually, because

24 they're not there or maybe they might have been there, would have asked a

25 logical question, "Well, do you have -- where's the report?" Because

Page 52199

1 this would be the smoking gun. We've got Dr. Prlic using the "ethnic

2 cleansing" words. So where's the document? Well, there is no document.

3 I can't remember what was said. I can't even remember if I wrote a

4 report, but I remember those words.

5 Those are the examples of the internationals, and there are more,

6 and more will come.

7 We seem to place a lot of currency on somebody being an

8 international, when, in fact, they're no better or no different from

9 anyone else.

10 You have BF, for instance. BF comes and says, "Well, we couldn't

11 open up an office in Mostar, we, the organisation." I'm not mentioning

12 organisations. I'm told that as long as I don't mention organisations

13 and the gender, I'm more or less safe, and if I'm not safe, somebody let

14 me know.

15 "We weren't allowed to open up." Well, okay. That's in direct

16 examination. Then we pressed the witness. "Show me concretely. Show me

17 concretely where you wrote a report, where you made a request, and you

18 made a request to Dr. Prlic and he said no." "Well, it wasn't like

19 that." "Well, how was it?" "Well, it was a feeling that I got. It was

20 an impression." "Well, did you ever ask?" "Well, it was unsafe."

21 "Well, okay, it was unsafe. You were told it was unsafe?" "Yes, but you

22 didn't need to be told because you could see it all around you." And

23 then we find out after cross-examination, full circle, that effectively

24 the question was never popped. In other words, may we open an office?

25 But instead through innuendo the witness wanted you to believe that

Page 52200

1 Dr. Prlic was not providing them access to have an office in Mostar.

2 Now, where I come from, a half -- half a truth is a half a lie,

3 and half a lie is a lie. Now, I'm not suggesting that the gentleman was

4 lying, but I am suggesting that he was not being totally candid, because

5 he was leaving the impression with the Trial Chamber, because -- the

6 witness was leaving an impression with the Trial Chamber that the

7 organisation could not open an office.

8 There's another -- another witness. Another international comes

9 in, and let me get away from these initials because despite all my

10 efforts I'm bound to slip up, let's talk about Ray Lane. Wonderful

11 gentleman, great sense of humour, you might recall. Fellow from Ireland.

12 He came and he testified. And he arrived in situ in around December

13 1992. That's when he first arrives in Mostar.

14 So he, like everyone else from his organisation - and he

15 testified in public - he shows up. He's with ECMM. And he shows up.

16 He's had two days or so of some sort of an orientation in Zagreb, which

17 he says it was not really much of an orientation. And, in fact, on

18 cross-examination it was, like, "Well, here's a map. You go down that

19 road, you're bound to run into Mostar, or at least Bosnia. You go -- you

20 just head -- just head in that direction. Can't miss it." And when he

21 arrives there, it takes him about two weeks, according to his testimony,

22 to find out that the Muslims are on the east side. And it took him two

23 weeks -- or ten days to two weeks to walk across the bridge.

24 All right. He's questioned, because he had some pretty harsh

25 characterisations of Dr. Prlic. In his statement, it was a two-day

Page 52201

1 statement that he gave. They went to Ireland, spent two days. Then he

2 had -- it was over a weekend, and then he spent some time. They gave him

3 the draft, and then they said, "Look it over and correct it. Take your

4 time. Be thorough." And you might find -- when I was cross-examining

5 him, because of the type of work that he does in the military, I

6 suggested that he was meticulous, and there was some bantering about

7 that. In any event, he gives the statement, and in the statement, of

8 course when he comes, he has to correct it because even his own rank was

9 wrong in the statement itself, among other things, but one of the things

10 that he said was that Dr. Prlic would dine at his private restaurant.

11 Now, when you read the statement, it's pretty graphic, graphic in the

12 sense that you read it and you know that whoever wrote it, wrote it with

13 purpose in mind, so that the reader would have just the right emotion,

14 the right feeling about.

15 So there he is, Dr. Prlic's private restaurant, and here comes

16 the private waiter in a tuxedo and delivers the food. And there we are.

17 It's in Mostar, and it's up on this building that's overlooking the city

18 or parts of the city.

19 Turns out on cross-examination that he's at Hotel Ero. Hotel Ero

20 is where Dr. Prlic had his office. And in the hotel, like most hotels,

21 there's a restaurant. And like most hotels with a restaurant, there's

22 room service. So you have the -- you call down to the restaurant and you

23 order up a meal. They put it on a tray, come up the elevator. Normally

24 in that part of the world waiters wear a little black suit and the bow

25 tie. He shows up. Uh-huh. I'm having a private dinner in a private

Page 52202

1 restaurant of the president, and now it's in the statement.

2 Now, if the ICTY investigator had any moxie, had any

3 understanding of his craft, he would have said, hey, wait a second.

4 Where is that restaurant? And by the time they got to this gentleman

5 with all the information they had, and -- but keep in mind that this case

6 has been an ongoing saga for this Tribunal because there are other cases

7 behind it for many, many, many years, and Mostar is not that far away,

8 and they paid a lot of visits down there, so you would think that the

9 investigator would know right off the bat that that's not quite accurate

10 or would press him. "Where is it? Show me. Describe to me the location

11 about this private restaurant." And you would think that an investigator

12 would also -- who is investigating the case would ask around and they

13 would find out very quickly that Dr. Prlic never owned a restaurant in

14 Mostar, but this is in -- this is now into their -- into the statement.

15 Then the gentleman says that, "I'm talking to Dr. Prlic. I'm

16 having a conversation, one of these discussions, and he pulls out a map,"

17 and there's this wonderful exchange, because later on he says, "Well, I'm

18 jogging on the beach of Scheveningen, and lo and behold it's not a map.

19 It's a drawing. It's not a map, a drawing."

20 Now, some of us may be able to make that kind of mistake, but a

21 military guy, an officer? I put that question to him, and he kind of

22 joked by saying that the most dangerous thing that you can see an officer

23 do is have a map in his hands.

24 All right. Let's forgive him for that. And he says that

25 Dr. Prlic drafts -- makes a circle, draws a line through the circle, and

Page 52203

1 says, "This is how we're going to carve up Bosnia-Herzegovina. One side

2 for the Serbs, one side for the Croats."

3 All right. Now, he's a military guy. He's there to observe.

4 He's there to collect information. Dr. Prlic is -- is forthright, and

5 you would think -- you would think that the gentleman would say, "Okay.

6 Can I have that drawing?" We don't have the drawing. He remembers it.

7 And then we see this drawing again come up, and we see it in the

8 Prosecution's brief, in a footnote. I believe it's in a footnote, or it

9 might even be in a text, where the Prosecution says it looked remarkably

10 similar, remarkably similar to the one that Paddy Ashdown drew when he

11 was meeting with Tudjman. I believe it was 1995. I think it was in -- I

12 can't remember exactly where the event -- where -- it was in London.

13 Thank you. And according to Paddy Ashdown, copious wine was being

14 poured, and there they were having this discussion, and that's when --

15 and he pops the question to Tudjman where does he see Bosnia-Herzegovina

16 ten years from now, and then supposedly on a napkin there is this

17 drawing.

18 Well, guess what, Your Honours? We don't have that. We don't

19 have the drawing. We don't have the napkin. We haven't seen it. But

20 it's remarkably similar. This is what the Prosecution wants you to

21 believe.

22 And regarding that particular piece of evidence, and you may wish

23 to look into it, I don't know whether it was an oversight, I don't know

24 whether there's some contradiction, the Prosecution moved to have the

25 Trial Chamber accept as part of the -- as a -- to judiciously notice --

Page 52204

1 adjudicated fact, thank you, something that came in from a previous case

2 regarding the Paddy Ashdown napkin incident, you know. So from a

3 judgement, this is an adjudicated fact.

4 Well, the Prosecution had moved for the testimony or the

5 statement from the gentleman, from Paddy Ashdown, and the Trial Chamber,

6 in fact, made a decision on that. It was on a 92 bis decision. I must

7 be driving Ms. Tomanovic nuts because I'm going all over the script now.

8 Anyway, it was 19 October 2006 where the Chamber found, and this

9 is what I'm a little bit confused about, but I'm sure Your Honours will

10 be able to get through it, on page 3 it says:

11 "Considering that the testimony refers to a single conversation

12 that Mr. Ashdown had with Franjo Tudjman and then president of the

13 Republic of Croatia, the then president on 6 May 1995, considering that

14 during the conversation Franjo Tudjman expressed his views of how Bosnia

15 would look ten years later, that is, in 2005, considering that he also

16 made remarks about Mr. Izetbegovic, the then president of

17 Bosnia-Herzegovina and the Bosnian Muslims, considering, however, that

18 the testimony provides information only about Franjo Tudjman's frame of

19 mind in 1995 and not about the period covered in the indictment,

20 considering consequently that the testimony is irrelevant, irrelevant,

21 for this case," and it dismisses the motion.

22 And -- now, this was -- Your Honours, this was of 19 October

23 2006, and the adjudicated fact came in -- and if I may be of some

24 assistance to the Trial Chamber, although you're probably on top of

25 everything, I believe that would be 7 September 2006 where, I believe,

Page 52205

1 the Trial Chamber accepted as adjudicated fact, and there is a little

2 table to it, it's 42, where it says:

3 "Having sketched on the back of a menu a rough map of the former

4 Yugoslavia showing the situation in ten years, Franjo Tudjman explained

5 to Mr. Ashdown that one part of Bosnia would belong to Croatia and the

6 other part to Serbia." Blaskic trial judgement, para 106.

7 Anyway, I leave that for you to consider, and, Your Honours, I

8 believe we might be coming up to the break. If not I'll continue, but

9 for me to it would be a good time at this point, but I can continue. I'm

10 in your hands.

11 JUDGE ANTONETTI: [Interpretation] It's almost time for the break,

12 so we will have our traditional 20-minute break.

13 --- Recess taken at 3.40 p.m.

14 --- On resuming at 4.02 p.m.

15 JUDGE ANTONETTI: [Interpretation] The court is back in session.

16 Mr. Karnavas, you have the floor.

17 MR. KARNAVAS: Thank you, Mr. President, Your Honours.

18 Now, I want to turn my attention -- turn our attention to -- to

19 Witness BA in -- a little more in depth. The witness testified based on

20 the witness's observations that Mr. Prlic, for instance, was fluent in

21 English, yet we saw last week a video by Ms. Giles, that was a 40-minute

22 video-tape that was shown, and then when she was cross-examined, she

23 admitted that his English was not the best and there was a problem with

24 communication.

25 Also, you have a tape that was transcribed. A witness came in

Page 52206

1 and testified. We will be getting to her in a -- perhaps later in the

2 afternoon, and from there you could also see that Dr. Prlic had problems

3 with his English.

4 It's hardly fluent, as Witness BA said.

5 Now, juxtapose that with witness, for instance -- I believe it

6 was BF. Witness BF testified, and though Witness BF was fluent in

7 English, insisted on testifying in his own language, and the reason that

8 he gave was because of the nuances of the -- of the language and wanted

9 to make sure that what was being said was being accurately transcribed,

10 that the witness was not being misinterpreted.

11 I mention that just as a little vignette. Witnesses that come

12 here, we afford them the best translation services, and even when they

13 are fluent in English, the witnesses are entitled to speak in their own

14 language, as they should, because the witnesses understand the need for

15 precision. And then you have reports -- or you have testimony from

16 witnesses, and then they affix meanings, impressions, conclusions,

17 sometimes they even put quotes.

18 When dealing with individuals such as Dr. Prlic, who is hardly

19 fluent in English, and this, by the way -- you would find this on

20 transcript page 7334 regarding the witness's impression that Dr. Prlic

21 was fluent.

22 Now, the witness also was questioned about the situation in

23 Zenica and in Central Bosnia, and one of the themes that was running

24 through the Prosecution witnesses, particularly BA, BB, BC, you name it,

25 you know, BD, BF, one of the things was everything was safe and sound for

Page 52207

1 the Croats in Zenica, yet none of them were there. None of them went

2 over there to take a look and see what's happening. And when reports

3 were being made to them about the situation, those reports were merely

4 being dismissed as ploys for reverse ethnic cleansing. Some were pressed

5 about the Mujahedin. Some were aware; some were not aware. But we

6 submit you have to take that into consideration, especially when they're

7 pressed on cross-examination, and they're being asked whether they

8 actually went there, whether they knew what was happening to the Croats.

9 Their answer always was, "Well, as far as we knew, as far as what we were

10 told by our headquarters in Zenica, everything was fine." And of course,

11 if there's reverse ethnic cleansing happening from Central Bosnia, and

12 Zenica is supposed to be the place that's supposed to be covering this

13 area, and the Prosecution is trying to convince you that the Croats -- or

14 that the Croatian Community of Herceg-Bosna was involved in reverse

15 ethnic cleansing, one would think that you would go to the source. The

16 source is Zenica. The source is not Mostar to have somebody look at some

17 documents who wasn't in situ, who didn't prepare the documents, to come

18 in and say all was fine with the Croats in Zenica.

19 And Witness BA was also questioned about a particular piece of

20 legislation that had come out on the use of abandoned property, and this

21 was the beginning of sort of a repeated mantra by all the Prosecution

22 witnesses, all the international witnesses who were there. None of them

23 actually read, actually read, and analysed the legislation. None of them

24 actually went to see what was happening elsewhere.

25 And in this particular instance, the legislation I'm talking

Page 52208

1 about, and I'm going to speak more about it, hopefully, with BB, but one

2 of the documents is P01894, but you may recall there was a great deal of

3 testimony back that we had in 2006 about a particular piece of

4 legislation coming out -- this decision coming out of Mostar, where

5 supposedly based on this decision, approximately 10.000 Muslim refugees

6 were denied access to humanitarian aid. And this is what that decision

7 was all about. And the purpose was to drive these refugees outside of

8 Mostar. And of course when you look at the decision and you look at the

9 testimony that was taken, and in particular with this -- with this

10 witness we're talking about pages 7430 onwards, all the way to -- to -- I

11 think it's, I believe, 7436, what is noted is that first of all, the

12 decision did not discriminate. Mostar also had Croat refugees. When

13 pressed, the witness did not know how many Croat refugees were in Mostar,

14 yet the conclusion that was jumped on was that this was an exquisite

15 opportunity to get rid of -- of the -- of the Muslim refugees, and of

16 course, somehow it's been tied into the events of May 9, 1993.

17 On page 7353, the witness says that -- the witness was unaware of

18 how many refugees went to Croatia; on 7351, how many Croat refugees

19 were -- versus Muslim refugees were in that vicinity.

20 And the witness was highly educated. And if I'm permitted to at

21 least state the education, had gone to law school. The same thing with

22 BB. They had both gone to law school.

23 And what's important about this is here we're talking about a

24 piece of legislation, you know, as crude as it may be, and the question

25 turns on interpretation. Well, first of all, you'd think that you'd want

Page 52209

1 to get ahold of it and analyse it like a lawyer. There was some sort of

2 an exchange. There was an objection to the fact that the individual

3 hadn't practiced law. Well, so what? Hopefully law school turns out

4 people that know how to read the law. That's the whole purpose.

5 But where did the interpretation came from? It came if Merhamet,

6 a NGO organisation, not in the business of law, where supposedly there

7 was -- based on their interpretation, there was going to be massive

8 discrimination. And then, of course, there's an exchange of letters by

9 somebody very high up and Mate Boban, where Mate Boban is explaining

10 exactly the purpose behind this piece of legislation. And in particular,

11 based on this legislation, you see that persons of the age of 17 to 60,

12 and women, I believe, up to 55, are excluded. Why? Well, there was a

13 war, and you had the All People's Defence, and everybody was mobilised,

14 and that was universal, and everybody was aware of it. And at the

15 beginning, as described in Mate Boban's letter in response, that this is

16 exactly what they were told: Exclude these people. And incidentally,

17 everywhere, all over Bosnia-Herzegovina, the same thing is happening.

18 And it's not a tu quoque argument, because we're suggesting that

19 based on the then existing system in the former Yugoslavia and in Bosnia,

20 you had this All People's Defence. You had the JNA or the military

21 forces, and then you had your Territorial Defence. Everybody had either

22 work obligation or had to -- had to serve in some capacity. There was a

23 state of war, and as a result, folks, men in particular, aged 17 or 18 to

24 60, had to serve in one capacity or another. And you will see later on

25 that when there's a load of refugees -- a load of displaced persons, I

Page 52210

1 should say, because we've been losing that term rather loosely in this

2 courtroom, but we're talking about in a sense the refugees being

3 displaced from their own locations. When you have a load of them coming,

4 and these are Croats, and they're heading towards Croatia because

5 Herzegovina, in particular the area of -- of Mostar and the Croatian

6 Community of Herceg-Bosna, is saturated, it can no longer absorb any

7 more, and so Croats are going to Croatia as they had been going all

8 along, the men, the military-aged men are taken and separated, because

9 they have to do their duty. And I believe we also saw some testimony and

10 some documents where even the -- the Bosnian -- the BiH I should say,

11 embassy, in Zagreb was urging that the men of military age, the Muslim

12 men of military age, be forced to return to Bosnia in order to take up

13 the cause.

14 And incidentally, the letter I was referring to by Mr. Boban is

15 1D01188.

16 Now, as far as when it comes to -- when it comes to the issue of

17 this reverse ethnic cleansing, we do invite the Trial Chamber to also

18 consider documents 1D00936 and 1D00937. And because of the time, I don't

19 have -- time does not allow me to spend much time with these documents,

20 but if we just look at one -- at 1D00936. I don't know if we have it on

21 the e-court, if it's available. You'll see on the second page and

22 onwards a list -- a list, and you see the numbers, and you see the

23 locations, and then you can draw your own conclusions, Your Honour.

24 Don't accept what Karnavas says. Don't accept what the Prosecution say.

25 Look at the documents. Look at the record.

Page 52211

1 And then when we look at 1D00937, on the second page, at

2 paragraph 8 it says:

3 "Now more than a thousand Croats have left Konjic. There will

4 be a real danger that in a next step the Muslim are going to expel the

5 about 500 Croats still living in Jablanica as received from the reports

6 and from our own former activities, Jablanica becomes more and more

7 isolated."

8 This is not about fixing blame as to who's responsible for what.

9 The bottom line is that you have all these refugees coming, all these

10 people being displaced, leaving out of fear, leaving because they're

11 isolated, leaving because they've heard about the Mujahedin, leaving

12 because they are in these enclaves, and yet the recurring theme of the

13 Prosecution is they're all being forced to leave. And then when you ask

14 someone like BA or BB or BC, "Okay. You go there? Did you see how the

15 situation was?" All of them say, "No."

16 Concerning BA, I also want to touch a little bit on transit

17 centres, and that would be in Prosecution's brief 454 and 455. And again

18 I must apologise for rushing through this, but time does not permit me to

19 dilly-dally on anything in particular, but we would suggest and we would

20 submit that if you look at, for instance, footnote -- footnote 1052 of

21 the Prosecution's brief, and then you compared that with paragraph 51 of

22 P09712, which is the report -- or the statement by and with BA, and the

23 investigators, you will see that it's a virtual lifting. Oh, there's a

24 little change of a word here or there, but it's a virtual lifting. And

25 the same happens on footnote 1054, and you compared the text, for

Page 52212

1 instance, in paragraph 453. It's -- it's amazing.

2 And I raise this because as I indicated earlier, when drafting

3 the report, when drafting the statement, it would appear, Your Honours,

4 it would appear that the drafter of the statement had the final brief in

5 mind.

6 We submit that you should look at the final brief that was

7 submitted by the Prlic Defence, paragraph 193 to 222. We also suggest

8 that you look at, for instance, among other documents, P03394, and on

9 this document, if I could just spend a moment or two.

10 We see that this is a document generated on 12 July 1993, and if

11 we go to page 3 on this document -- it's not paginated, Your Honours, but

12 it's on page 3. Towards the bottom of the middle of the page and

13 downwards we see the following text:

14 "Having set up an analysis department at the end of March, we

15 were able to complete the data on expelled refugees and displaced

16 persons, and we now have reports from 5 May 1993, 23 June, and 8 July

17 1993. In the first period (5 May 1993), both Muslim and Croats became

18 expelled persons because of Serbian aggression, and since June there has

19 been a significant increase in the number of expelled Croats because of

20 the Muslim offensive in Central Bosnia and north-eastern Herzegovina.

21 "Thus the numbers of expelled Croats residing in HZ-HB has

22 increased by 50.000 (i.e., 100 per cent) and now totals -- and now totals

23 110.061. It is unlikely that new expelled persons will be arriving in

24 this area. Also note that there are around 120.000 Croats who had been

25 expelled from Bosanska Posavina, and who have been housed outside HZ-HB,

Page 52213

1 which brings the total number of Croats who have been driven out,

2 expelled, or displaced from BiH to around 270.000 or 35 per cent,

3 according to the 1991 census."

4 And this was document P03394.

5 I also invite the Trial Chamber to look at 1D00929, P03796, and

6 see also P03990, page 9, para 37. And if I may get that for a second,

7 then maybe I can read it, read part of it.

8 And all I'm trying to demonstrate, Your Honours, is that

9 there's -- there are two sides to the story. Unfortunately, the

10 internationals are only coming here and telling one side, or at least

11 some of them. And for whatever reason, it would appear that, for

12 instance, to borrow a phrase from the Prosecution or their expert,

13 command climate. If they arrive in Zagreb or they arrive wherever the

14 focal point is, before coming into country and into location, they're

15 being told that this is a self-proclaimed entity that is committing

16 ethnic cleansing, that is cleansing itself -- if that's how you start,

17 that's your orientation, that's your grounding before you get there, and

18 then if you're not clever or not energetic or just simply overwhelmed

19 with the situation and don't take the one or two steps further into the

20 situation to look around and observe and ask questions, then perhaps

21 everything that you're going to report may be off-skewed, a little bit

22 off the mark.

23 And then when considering, and we have testimony, Your Honours,

24 that all these internationals are bunking around together, they're

25 sharing offices, they're passing information and they're passing it as if

Page 52214

1 they're the originator of the information when, in fact, it's the same

2 source. We saw that. And I'm not saying it's happening all the time,

3 but if you have five sources saying the same thing but it's one source,

4 actually, it's easy to then jump to the conclusion that, "Well, see? You

5 know, there's verification. There's validation." And so we're urging

6 the Trial Chamber to be very, very cautious. Look at all the documents,

7 don't be dismissive the way the Prosecution suggests you should be.

8 In this particular document P03990, this is a letter -- it's a

9 report, actually, it's addressed to Boutros Boutros-Ghali, and he's

10 forwarding it on, and the letter is from 5 August, 1993, by the

11 co-chairman of the Steering Committee of the International Conference on

12 the former Yugoslavia, and if we go to paragraph 37, Central Bosnia:

13 "The boundary between the Croat and Muslim majority republics in

14 this region where fighting was intense while negotiations were continuing

15 was an area of great contention. The atmosphere for negotiations was not

16 improved by the offensive the Bosnian government army wants in this

17 region."

18 I'm parking here so we can sort of absorb that a little bit,

19 because remember, this is 5 August. And if you look at our brief, Your

20 Honours, you will see we laid out the chronology of all of the events and

21 we cited the documents to show what is happening in Central Bosnia, and

22 there's this constant, constant pleading from the folks in Central Bosnia

23 to get them out of there, because winter's about to approach and they

24 have nowhere to go. They're scared. They're frightened.

25 What's interesting, too, in one place, I don't know whether it's

Page 52215

1 this particular witness or another witness, I brought up the fact that

2 when the Croats have to go, they're leaving. When the Muslims are going,

3 they're being expelled.

4 Now, I'm not suggesting that one is being expelled and the other

5 one isn't. What I'm suggesting is it's funny that everybody -- all the

6 Croats from Central Bosnia, they're just leaving. They're going on

7 holiday. They're going to the Promised Land, the Croatian Community of

8 Herceg-Bosna.

9 While I'm at this, let me jump ahead of myself, and again

10 Ms. Tomanovic will probably have some words with me during the break

11 because I'm going off script a little bit, but there is in the

12 Prosecution's brief where they quote from a particular journalist who

13 came and testified where Dr. Prlic says, "I'm not for Bosnia. I'm for a

14 Bosnia and Herzegovina. I'm not Bosnian. I'm a Herzegovinian, and I'm a

15 Croat." And that is taken as a nationalist. Well, news flash: The

16 country's called Bosnia and Herzegovina, or Bosnia-Herzegovina. And we

17 even had an explosion in this courtroom, not in a physical sense, but

18 there was that one -- if you may recall, there was an interruption here,

19 and it was General Praljak who was incensed at the fact that we kept

20 saying Bosnia, Bosnia, Bosnia. He said, "No. The country's called

21 Bosnia-Herzegovina." And there is no such thing as a Bosnian Croat.

22 There is a Croat from Bosnia-Herzegovina, and they may be from Central

23 Bosnia or they may be from Herzegovina, and Herzegovinians are quite

24 different from Central Bosnians or somebody who lives in the Posavina.

25 It's a fact of life. But if you look at the exchange, and this is -- the

Page 52216

1 journalist was Marita, I can never pronounce this name,

2 V-i-h-e-r-v-u-o-r-i. It's basically the alphabet it's so complicated.

3 But anyway, if you look at this, Your Honours, and you will this is where

4 she jumps to the conclusion, and then Prosecution jumps on the bandwagon

5 and says, see, he's a nationalist. No. He's a Herzegovinian. And you

6 can be for Bosnia-Herzegovina and still be a Herzegovinian. It's as

7 simple as that.

8 And keep in mind that you have -- this is the same journalist

9 who, before meeting with Mr. Prlic, had got a briefing from Alagic in

10 Central Bosnia.

11 I leave it to you, Your Honours, to go through that, go through

12 her testimony, her entire testimony, and -- because you will see when you

13 go through her testimony and you look at the documents and you look at

14 the way that the Prosecution is trying to somehow fit her version of the

15 events or what she same across from that conversation with Dr. Prlic,

16 this is the same journalist who spoke to Dr. Prlic in her own bad

17 English. Her English was not so good, but that was the language. She

18 took her notes, however, in her form of German. It's in the transcript,

19 Your Honours. I'm not making this up. It wasn't German German. She had

20 studied in Vienna. But she had her own, it wasn't shorthand, it was her

21 way of German. And I'm not putting the woman down, but you have a tape

22 of a conversation, and you have to -- you have to listen to the entire

23 conversation, because when Dr. Prlic is saying, "I'm not for Bosnia, but

24 I am for a Bosnia and Herzegovina," that speaks volumes. And what he's

25 saying is the country is Bosnia and Herzegovina. That's what he's

Page 52217

1 saying. And that is taken out of context, and that is misunderstood.

2 And the fact that the Prosecution would put in their brief, "Well, see,

3 he's saying he's Herzegovinian, he's saying he's a Croat."

4 Well, if I were to ask what's a Hungarian from Vojvodina? Is he

5 a Serb? No. He's a Hungarian from Vojvodina. Well, what about a Serb

6 from Croatia? What is he? He's a Serb. He's a Serb from Croatia. But

7 Bosnia and Herzegovina had these nations, for better or for worse, and

8 just like Serbs, Serbs are Serbs from Bosnia-Herzegovina, and there's a

9 difference between a Serb from Bosnia-Herzegovina and a Serb from Serbia,

10 and they're the first ones to tell you, just like the Croats would tell

11 you the same thing. And I believe it was Mrs. Sancevic who was from

12 Central Bosnia who talked about the difference.

13 In any event, let me move on to the next witness, which is

14 Witness BB. And I'm covering a lot of ground and I'm jumping around a

15 little bit, Your Honours, because there's so much to cover, and I must

16 apologise for this rather crude presentation, but I hope that I can be

17 forgiven in light of the Herculean task that we all are facing.

18 Witness BB more or less in the same situation as Witness BA, and

19 this witness again, when questioned about Zenica and the Croats was

20 utterly unaware of what was happening, yet the position they were taking

21 is that the Croats are being ethnically cleansed. And Dr. Prlic, when

22 raising the matter, that's what's alluding to.

23 So I'm going to try to skip around a little bit. On the issue of

24 this reverse ethnic cleansing, Your Honours, and in the Prosecution's

25 brief, it's mostly in the paragraph 46 to 463. I believe that would be

Page 52218

1 it. We would invite you, Your Honours, to look at the testimonies of --

2 if I may have one second, Your Honours.

3 Let me move on for the sake of time. I apologise. But look at

4 document P02967. And there's also testimony, Your Honours, that we

5 believe that may be useful for the Trial Chamber, although at this moment

6 I must confess I'm having a hard time finding the right citation for

7 this, so I will move on.

8 Concerning paragraph 461 with this particular witness, we ask

9 that you -- we submit that you may find it important to -- to look at

10 transcript page 25382 to 25401. And also, we took testimony from a

11 Defence witness, Simunovic, and he was in charge of the -- I believe the

12 Red Cross over there in -- in Mostar.

13 There had been an assertion made that the Red Cross of Mostar was

14 not providing humanitarian assistance to anybody other than Croats, so we

15 invite you to look at in connection with P04822, to look at Simunovic's

16 testimony of 33629 to 33638, and then 33673 to 33676, and to also look at

17 document 1D02813.

18 Now, we also ask you to look at, if I haven't mentioned this,

19 this is -- we fired a confidential annex in a particular motion where we

20 described exactly part of the cross-examination of this witness, and

21 here's what we said in our confidential annex to the motion that was

22 filed -- I'm not mentioning any names, so it's perfectly fine, but

23 Witness BB was cross-examined extensively about the report on 7 May 1993,

24 titled "Decision on CCHB," that's the Croatian Community of Herceg-Bosna,

25 "Altering the Status of Refugees," and that was P09840. And the purpose

Page 52219

1 of the cross-examination was to show BB's profound ignorance of what BB

2 was reporting, particularly since the contents of the decision BB was

3 reporting, that is Exhibit P01894 and P01244, was no different than what

4 was being carried out at the state level and other municipalities. And

5 so we suggest that -- Your Honours, that you look at very carefully BB's

6 testimony concerning this issue. And we submit that when that decision

7 was passed, it was passed because Mostar had reached the saturation

8 point, and there was a need to regulate the abandoned property.

9 We also submit, Your Honours, that later on there is a decision

10 that was passed by the Croatian community of Herceg-Bosna, because the

11 one was passed by the HVO Mostar municipality, but there's another one

12 that's passed later on rather similar, and you will see both -- in both

13 decisions it's virtually impossible to sell your abandoned property. And

14 so this notion that somehow there was an attempt for exchange of

15 populations and exchange of property, because that's part of the issue,

16 is nonsensical, because you would have to get the other municipality to

17 agree because of the social -- the property was socially owned, unless

18 we're talking about villages and farmland.

19 So the suggestion -- we're suggesting that the legislation that

20 was put in place, these legal instruments were put in place actually

21 to -- to, one, to make proper usage of the abandoned property because of

22 the situation, and every municipality was doing that; and two, it was put

23 in place to ensure that the rightful owners would be able to return. And

24 that's very clear. There's nowhere in any of the decisions -- you won't

25 find a single decision, and the Prosecution can bring it up if they want

Page 52220

1 or try to bring it up on rebuttal, where it shows that you would lose

2 your -- permanently lose or you could give away or you could sell, you

3 could transfer, your rights.

4 Now, if I move on to the next witness. BC, very much in the same

5 boat as BA and BB. Most particularly interesting about this witness, and

6 it's kind of telling about how this particular organisation, and some of

7 these internationals, how they perceived the Croats in the area, is that

8 this individual was asked to go to a place named Uzdol to do an

9 investigation. And granted he's not an investigator, but he's in the

10 business of writing reports. He's in the business of gathering

11 information, and of course he wants everyone to believe in this courtroom

12 that whatever he wrote or whatever his organisation wrote was accurate

13 and authentic and reliable, and yet he goes there. And he also testified

14 in another case. I won't mention the name of the case. But if we look

15 at his testimony, and it's on the transcript at 18605 and it goes all the

16 way to 18620, the gentleman goes there, looks around, talks to one

17 particular individual, and comes back and basically says nothing

18 happened. And there is evidence as to exactly what had happened. And

19 there was, for instance, a Prosecution witness named Gerritsen who came

20 and testified, and he was cross-examined on this, and I believe the

21 testimony on that particular matter can be found on pages 1000 -- no, I'm

22 sorry. 19255 to 19257.

23 He went there on 15 September 1993. He talked to the mayor, saw

24 some dead people there, saw the dead bodies, and did not think that it

25 was a set-up, whereas when BC was questioned, he said, well, he couldn't

Page 52221

1 walk around. It was unsafe, it was this, it was that. All these

2 excuses. But at the end of the day, yep, the Croats are confabulating

3 over there. And so I bring that to your attention, Your Honours. Factor

4 that into your deliberations.

5 Am I suggesting that the gentleman is anti-Croat? No, I'm not

6 suggesting that. What I am suggesting, however, is that there was a seed

7 that was planted, and it appears that it was watered continually. And

8 the seed was planted that these folks down there in the Croatian

9 Community of Herceg-Bosna, one, they're trying to create their own state,

10 and they're trying to ethnically cleanse themselves, and they're the

11 cause of all evil.

12 Of course, nobody told him what was happening in 1991 and 1992.

13 But the Trial Chamber heard testimony, for instance, from Kljuic, and

14 Kljuic, at least on cross-examination, and I believe I cross-examined him

15 for about six hours, was -- when you look at the documents that were

16 shown to him and you look at his testimony and you look at our final

17 brief on the establishment of the Croatian Community of Herceg-Bosna, why

18 it was established, how it was established, what preceded all those

19 events, even Kljuic admitted that -- about regionalisation.

20 The Prosecution in their closing argument said, "Well, you know,

21 Kljuic got more votes than Boban." Well, Boban didn't run for the

22 Presidency. So of course he's going to get more votes. If I run for

23 governor of Ohio and somebody's running for the President of the United

24 States, I hope the President gets more votes. I mean that's only

25 natural. You can't compare one with the other.

Page 52222

1 You have documents, and I can introduce them perhaps later on

2 which shows exactly who were the vote-getters. Number one vote-getter

3 was Abdic. He got the most.

4 Now, along with this particular gentleman, we suggest that you

5 also look at 1D01263 and 1D01261. And -- so when you are looking at this

6 whole issue of reverse ethnic cleansing, look at these documents. And

7 also look at P03900. P03900. It comes up over and over again with other

8 witnesses throughout the trial, we mentioned this document. And this is

9 from Sir Martin Garrod. And if you look at paragraph A on the first

10 page, it says:

11 "Prlic started the meeting in a fairly combative mood by saying,

12 speaking in English, that no results had been achieved from ECMM

13 monitoring by saying that: 'We know who in the international front is

14 against us.' He added that the Croats now held only 9 per cent of the

15 territory of Bosnia and Herzegovina and only 40 per cent of the territory

16 of the three provinces that had been allocated to them in the VOPP."

17 But then we -- let's turn to the very last page of this document,

18 and keeping in mind this document is August 1993. This is when this

19 whole notion of reverse ethnic cleansing is sort of a storm that's coming

20 and coming and coming, and we've introduced all of that evidence in our

21 final brief, but let's look at the last page. There is a comment:

22 "There was no doubt that Prlic felt passionately about what he

23 said concerning antagonism of the West, that the Croats were being

24 treated unjustly and the perfidy of the Muslims, et cetera, and, of

25 course, he repeated many of the arguments which are becoming familiar to

Page 52223

1 us from senior Croat sources. There is also little doubt that he meant

2 what he said (I would not think he is -- would I not think he is a man

3 who does not otherwise) about our re-entry into Mostar and freedom of

4 movement. It remains to be seen whether he carries out his assurances to

5 us of speaking," of speaking, "to Stojic and Bozic about this, and if he

6 does, whether he has the power to carry the argument."

7 Now, this is interesting for a couple of reasons. One, you draw

8 your on conclusions as far as what Garrod is saying, but the very last

9 sentence also shows you that Martin Garrod who is there realises, perhaps

10 because he's had a more in-depth conversation with Dr. Prlic, that while

11 Dr. Prlic can put in a good word, it's not up to Dr. Prlic. And there is

12 a document which we may get to where because there was one witness, and I

13 believe it was Witness BH, that said that Prlic could issue a movement

14 pass.

15 Well, it sounds good and one may think, yeah, the president can

16 do that, until you see that the president himself has to ask for

17 permission to move about, and he has to ask from the local commander.

18 So -- I don't have it at this moment. I will -- I will, however, Your

19 Honours, provide you the citation on that.

20 Incidentally, with -- going back to BB, Your Honours, it was

21 interesting that during the cross-examination, it came out how this

22 particular organisation, at least under -- when she was heading it, how

23 they were using the media, the media to get their story out, the media in

24 order for the media to go into places. And of course there is one lovely

25 exchange where another international organisation, a very reputable one,

Page 52224

1 described the activities of this particular organisation, the one that BB

2 was involved in, as a media circus.

3 Now, think about that for a second, and think about what

4 Dr. Prlic is saying to Sir Martin Garrod, because it appears that the

5 media also may have it a little bit wrong. Because if they're being fed

6 the information from these organisations that are supposedly on the

7 ground and supposedly objective and supposedly to be fair on all sides

8 and they're getting it wrong, then obviously junk in, junk out. What's

9 going to be printed is not going to be terribly accurate.

10 Moving to BH. I will cover him rather quickly, Your Honours.

11 What is interesting about BH, highly educated, however, by his own

12 admission, when he comes to the area, he is briefed by BA. That's his

13 source of information. That's number one.

14 Number two, he's there for seven days, approximately.

15 Number three, he has a conversation with Dr. Prlic one time.

16 It's approximately 45 minutes to an hour, and from there he drew some

17 conclusions. It's unclear in which language they spoke. BH, I assume,

18 speaks English but also speaks some Serbo-Croatian. The quality, I don't

19 know.

20 What's interesting about BH, however, is he had some very fixed

21 notions. He compared the HVO to ETA and the IRA. This is how he

22 perceived it. And then when he was pressed during cross-examination, or

23 he was actually being examined, truth be told, he claimed he had read

24 some things before he got in theatre. The witness claimed that -- that

25 some material was available and had been read, but never looked at it,

Page 52225

1 and then claimed that his interpretation or his impressions were de

2 facto, not de jure. And one would think that before drawing some

3 conclusions, the witness would at least, based on their education, their

4 background, their experience, and the mission at hand, would dig a little

5 bit deeper.

6 This is the same witness that was putting quotes where he

7 couldn't attribute as to who -- who had which quotes.

8 And in the Prosecution's brief we see, for instance, this whole

9 issue dealing with government leaders. And this is important because the

10 Prosecution's relying on folks like BH to draw to the conclusion that

11 Dr. Prlic was in charge of the military.

12 Now, it's one thing to have an impression because you walk into a

13 meeting and you see somebody who might be dressed in civvies and look

14 dapper and perhaps maybe a little confident, and you can draw that

15 conclusion, but it's something else to say, "Well, I looked at the

16 legislation. I talked to the gentleman, I talked to others, and this is

17 why I think he had power over the military." And so in the Prosecution's

18 brief this is covered primarily on paragraph 361. You know, where

19 they're talking about the responsibility of the government leaders. And

20 the Prosecution, right there on 361, top line:

21 "Article 2 of the Herceg-Bosna decree on the armed forces

22 provided the civilian government control over HVO armed forces."

23 And "Civilian government control over the HVO armed forces."

24 Now, what does that mean? What can you draw from that? Can you draw the

25 conclusion that this means that it's Dr. Jadranko Prlic who is in control

Page 52226

1 of that?

2 We know that Mate Boban is the supreme commander. You have to

3 look at Article 2 and look at it very carefully. And I'm not going to

4 sit here -- or stand here, and go through it in detail, because it is not

5 my job to lecture to the -- to the Trial Chamber on how to read

6 legislation. It's all there. And we submit, Your Honours, to read it

7 carefully. Maybe we have it wrong. But if you look at that particular

8 decree, what you won't find, what you won't find is any mention that

9 Dr. Prlic had any such control as the Prosecution would want you to

10 believe, that somehow he was in charge right after Boban, that this is

11 the hierarchy. It doesn't work. It's a collective. And if you look at

12 Article 30 once it was amended, once the law was amended, you will not

13 see that Dr. Prlic was provided with any authority. And I'm not

14 suggesting for one moment that that authority that was provided to the

15 Department of Defence was ever misappropriated or misused. That's not

16 the point. The point I'm making is that you have to look at the

17 legislation. That's the point.

18 And so, for instance - again let me get ahead of myself - the

19 so-called proclamation by Jadranko Prlic, the proclamation that came out

20 after the events of June 30th. When you look at it very carefully, what

21 do you see? Now, Mr. Stringer was very careful, and I listened, and he

22 was very precise in the manner in which he described it. There was an

23 announcement, and then there was an order in the same document. There

24 are two things to this -- this document. One, an announcement, then

25 there is this order. And if you look at the order, it's very clear where

Page 52227

1 it comes from. It's very, very clear. I can provide you the citation,

2 Your Honour. I don't have it at the moment, but it's very clear that the

3 order is issued based on the authority vested in him, presumably

4 Article 30, though not necessarily.

5 And what does the order call for? It doesn't call for

6 mobilisation. And when you look at it very clearly, because mobilisation

7 had already begun, and there's lots of testimony to that. Boban was the

8 only one that could -- that could mobilise, and did in fact ask for

9 mobilisation to occur, and it was up to others to institute and to

10 implement that mobilisation process, and it was an ongoing process. And

11 keeping in mind what had just happened on June 30th, it's only natural to

12 say, "Okay, there are these events. You need to show up."

13 So it's not exercising some power that -- in some nefarious way

14 as the Prosecution would have you believe. And the document is P03038.

15 I point that out, because there's no need, there's no need, Your

16 Honours, to suggest that this is some kind of a joint order by Prlic and

17 Stojic. And we're not suggesting that the order itself was illegal or

18 improper, but why, why try to convince you. And also, when you look at

19 the Prosecution's brief on that particular issue, you'll see that they

20 almost minimise what just happened to the Croats.

21 Now, getting back to BH, BH states -- okay. He spent eight days

22 in Mostar, and BH states that he's giving not illegal interpretation but

23 just -- just the impressions that BH had.

24 "Q. Based on that how can you possibly put in your brief and

25 cite BH as an authority?"

Page 52228

1 And you've had testimony. Now, the Prosecution just wants that

2 narrative. They want Dr. Prlic to be in charge of the military. And so

3 when somebody comes, has a short conversation, somebody else has told

4 them, "Well, he's in charge of the military as well," or that's the

5 impression that he walked away with, and then he says that, "Well, that's

6 a very good source."

7 And remember what I said earlier, Your Honours. This is not

8 about scoring a victory. It's about getting to the truth. It's about

9 getting to the truth. And I do submit, and I do submit, that there is an

10 obligation, there is an obligation not to try to overreach in order to

11 get a notch on the belt.

12 You also have testimony on this particular issue from -- from

13 General Praljak, and he's very, very clear, and he states exactly the

14 authority of the government, the authority that Dr. Prlic had, and he's

15 very, very clear. He testified under oath. And he has no reason to

16 protect Dr. Prlic. He says exactly how he understood the situation to

17 be, that Dr. Prlic could come and ask him some information. Dr. Prlic

18 could not order him, could not direct him, and he was not obliged to

19 report to him. End of story.

20 And I suggest, Your Honours, just carefully, carefully, read all

21 of these documents that are being cited by the Prosecution. They tend to

22 cite Filipovic quite a bit.

23 Now, Filipovic testified, and we see him in various footnotes --

24 keep in mind that Filipovic was in Central Bosnia most of the time, and

25 when he is testifying, when he is testifying, his knowledge is based on a

Page 52229

1 couple of -- some limited exposure, but what he is really saying, if you

2 pay close attention to the testimony, and you would find this on, I

3 believe it's pages 47670 to 47682, that April, May, June 1992, HVO was

4 everything. HVO was everything back in that period, and he was engaged

5 in the Lasva Valley, and he was not aware that HVO executive existed,

6 because he did not -- his engagement was in the Lasva Valley, and he

7 thought that the municipality authorities were the most important.

8 Now, that's his testimony. But don't trust Karnavas. What I say

9 isn't evidence. The record is evidence. Look at it very carefully, Your

10 Honours, because -- and then look at our brief. We're, again, not

11 evidence, but we do try to be faithful and to give a chronology of how

12 things unfolded, because it's quite a complicated story this HVO. I

13 mean, this is something like out of science fiction when you think about

14 it, how it all worked. But it worked somehow. And there is this

15 evolution, and it takes time before you have two HVOs. And regrettably,

16 for at least the accused, HVO was for everything. Unless sometimes they

17 made a distinction HVO HZ-HB, then you knew it was the executive

18 authority. But when they're talking amongst themselves, obviously they

19 understand. The problem is we come into court, and we say, "Well, HVO."

20 Well, back in that period HVO was everything, Your Honours, and we submit

21 that you should look at that very, very carefully.

22 You know, in talking about just a little bit, if I may digress on

23 this military issue with Dr. Prlic, because they're fixated, they're

24 fixated, not with -- they, the Prosecution, and I'm not trying to

25 belittle the hard work that they did, but they just have it wrong, and I

Page 52230

1 think that reasonable people can -- can disagree, but they just have it

2 wrong, and sometimes they just are a little bit overexuberant. I mean,

3 I've been accused of that once or twice myself. I'll plead guilty to it.

4 But at least, when it comes to citing and being precise with what is

5 being said, we have to be rather careful.

6 You have the Prosecution talking about, for instance, on

7 paragraph 363, that Prlic confirmed that he met Stojic on a weekly basis

8 to discuss defence and military matters. That is in the statement. It's

9 said -- it is that it's under seal, but it is my understanding it is not

10 under seal because we've been talking openly about it. It's cited that,

11 and perhaps because of -- out of caution, and we appreciate that, but

12 that's what the Prosecution is saying. But you really have to go to the

13 statement itself in order to appreciate what exactly Dr. Prlic is saying.

14 One moment, Your Honours. My apologies. There's so many

15 documents to deal with.

16 But the exchange is, you have WT, that's probably William

17 Tomljanovich, Prosecution employee/analyst/expert, there is a question,

18 and then Dr. Prlic says:

19 "I would say that I saw him weekly because that was the dynamics

20 of how often sessions were held."

21 Keeping in mind that Mr. Stojic is also a member of the HVO

22 HZ-HB.

23 "He was not bound. He was not obligated to give me any reports

24 about the defence department. That's how it worked, because it is quite

25 clear that the whole legal system -- and the documents exist about the

Page 52231

1 legal system and how the Defence Department was established, what was the

2 subordination in it."

3 So he adds:

4 "No, he was not bound. He had no obligation to report to me

5 about their work, and there was no point of contact whatsoever between

6 us."

7 Now, with this, Your Honours, I suggest that you also hark back

8 and look at the testimonies of Buntic, of Perkovic, of Raguz, because

9 these gentlemen, especially Buntic and Perkovic, these gentleman were

10 part of the HVO HZ-HB. Buntic was with the judiciary. Perkovic was the

11 technician. He was the technocrat who had worked in the administration

12 before and then was in charge of this sort of legislative unit that made

13 sure that the laws were the -- or the decrees are harmonised and was

14 assisting in the drafting process. And they described -- and also Tomic,

15 I should say. They described exactly how the HVO HZ-HB as a collective

16 functioned, and who could do what to whom. And it's very clear that the

17 president, although it sounds like a lofty position, did not have the

18 authority to order. They had an obligation to the collective. The

19 collective took a decision. The department that was responsible was

20 supposed to carry out, and they responded. They had to write reports.

21 The reports were sent to the collective.

22 And Dr. Prlic, and you won't find this anywhere, did not have the

23 authority to order any particular department head to do anything. And I

24 dare the Prosecution to come up with a document that says -- that shows

25 that Dr. Prlic ordered a member, ordered a member, in his capacity as

Page 52232

1 president, and I'm not talking about a decision taken by the collective,

2 but as president ordered a department head to do something. He just

3 simply did not have that capacity. And you heard this from Tomic. You

4 heard this from Buntic.

5 Buntic was rather clear, and there with Buntic, we were going to

6 get to it at some point, Your Honours, but again the Prosecution points

7 to Buntic as a source. And I don't have it at the tip of my hands right

8 now, but they point at two particular pages in the transcript, and what

9 needs to be done, and we will -- we will bring this to your attention,

10 you need to look at the following page, and you get a look at the

11 redirect, because what Mr. Buntic is saying is, "Well, yes, that's what

12 this statutory decision is saying, but you have to look at also the rules

13 of procedure."

14 Now, it suits the Prosecution to stop, full stop, a page earlier.

15 We suggest -- and again, don't accept what I'm saying. Look into the

16 transcript. Look at the decisions. Look at what they're saying.

17 They're the ones that were implementing it, and they're the ones that

18 know how the system worked.

19 But getting back to the Prlic statement, if you go on, it's very

20 clear at the bottom of the page. It says -- because they're asking him:

21 "Did you ask for information?"

22 And he says:

23 "Yes."

24 "Were you satisfied?"

25 "No, I was not because those information were so global that

Page 52233

1 nobody would have been satisfied with them."

2 "Did you complain to him about that?"

3 Excellent question. Excellent question.

4 Answer:

5 "Expressed my opinion, my attitude, but he was not bound. He was

6 not answerable to me."

7 But he's answerable maybe to somebody else, and of course that

8 would be the supreme commander.

9 It goes on:

10 "Did you ever issue a written complaint that you were the head of

11 a body, that you were the head of a body, and somebody else in the body

12 was not giving you enough information?"

13 And right there the problem with the question is even

14 Mr. Tomljanovich, who wrote this wonderful report that looks good, that

15 looks good, when you scratch it, under the surface not so good, because

16 for whatever reason you have some folks coming from these developed

17 countries with -- with their understanding of how political systems

18 function, and Presidency, prime minister, cabinet, they have a certain

19 meaning, a certain context, and then they're con fronted with this

20 situation, which is a collective.

21 First, they never bothered to really read the documents. They

22 never consult someone, a local -- somebody local. Why couldn't the

23 Prosecution bring us somebody local? From the former Yugoslavia. They

24 doesn't have to be from Bosnia-Herzegovina. Tomljanovich is from

25 Milwaukee or Wisconsin. Fine place. But the fact that he's

Page 52234

1 Croat-American doesn't mean that he understands how things were operating

2 in Bosnia-Herzegovina.

3 So he goes -- so we go on.

4 "No, I don't know. No, because on the one hand he was not

5 answerable to me according to all legal documents that the establishment,

6 and the establishment, and on the other hand, I don't know to whom I

7 would write or address such a complaint."

8 Now, he's pressed, because obviously Mr. Tomljanovich is not

9 satisfied with that. And so what about -- what about Boban? And the

10 answer is, "Well, Bruno Stojic was head of the defence department and his

11 function is quite clear within the military sector which goes from the

12 supreme commander to the chief of the staff of the Main Staff and the

13 whole military structure is prescribed and described. And how would I

14 complain about Bruno Stojic to Mate Boban when he was his first

15 associate? That's one thing. And the other thing is what I clearly

16 stated at the beginning when I was appointed: I had nothing to do with

17 the military structure in the military organ."

18 Now, let's stop here. In order to understand exactly what

19 Dr. Prlic is saying, because I -- we submit that it's not shifting the

20 blame or trying to shift the responsibility. When you look at and you

21 put this in context, what he's saying is you have to look at the legal

22 instruments. The legal instruments were abided by. This is not the Wild

23 Wild West. This is not some Third World country where you didn't have an

24 educated class. There was a system in place before the conflict. That

25 system continued. That's what they -- that's what everybody on the

Page 52235

1 ground understood. That's why it wasn't necessary for Dr. Prlic or

2 anybody else who was in the collective to know exactly what their

3 functions were, because they had worked in that system. But now when the

4 internationals arrive, they're not interested in understanding it.

5 Instead, they're interested in to jumping into conclusions and making

6 reports, and then those reports are moved up the ladder, and now you have

7 this belief that somehow this is how the system worked.

8 We see president, and you'll see this -- there's a wonderful

9 exchange with -- with -- actually with BF, who indicates that, well, BF's

10 understanding is that the president has capacity over the military and

11 that's the end of the story.

12 Now, let's move on to BD. BD is the witness that claimed that

13 Dr. Jadranko Prlic provided the -- the pass. BD was questioned and

14 cross-examined extensively. In one of the reports you might remember BD

15 describes a certain event as the successful Muslim offensive. I believe

16 that was the term that was used.

17 BD claimed that her -- the organisation that BD worked for, and

18 BD in particular, was prevented from setting up an office in Mostar. And

19 then when questioned extensively, it turns out that BD complained that

20 she was never given assistance to find and locate a place to rent.

21 That's a far cry from being prohibited from opening up an office.

22 BD also explained that she had a -- BD had a wonderful

23 explanation on direct knowledge. Direct knowledge is when, for instance,

24 you speak to somebody who purportedly has direct knowledge and that

25 person tells you. So from direct to direct. Usually that's called

Page 52236

1 hearsay, and the problem with hearsay is, well, sometimes it's good, and

2 sometimes it's bad.

3 Now, this is -- I make light of it a little bit, but it's almost

4 sad, sad that you write reports based on what you're being told, but you

5 take it on and you write it as if you've observed it, and you say, "I had

6 direct knowledge of these events." Well, how is it? "Well, I spoke to

7 somebody who had direct knowledge." Well, how do you know that person

8 had direct knowledge? The only way that you would know is, A, you have

9 some independent indicia; or B, you saw the person getting -- absorbing

10 the direct knowledge.

11 The same witness, and we're talking about in the transcript 20808

12 to 20810. The -- this witness was questioned about the situation in

13 Central Bosnia, because again the witness, under the impression that

14 there's reverse ethnic cleansing, and of course BD never visited Central

15 Bosnia, Vares, Busovaca, Vitez, Gornji Vakuf, Kakanj, never went there.

16 But BD was located and her work space was with another organisation, and

17 they shared information, and that comes across in the cross-examination.

18 She testified 4 July -- 3 July, 4 July we see the testimony.

19 I suggest there's -- there's a wonderful exchange when -- when I

20 asked BD if this witness had met Mate Boban, because, of course, she --

21 the witness is claiming to -- to know the levers of power, and there's a

22 wonderful exchange where the witness says, "Thanks God, no." I suggest --

23 I submit, Your Honours, that it would be -- it would be a good

24 opportunity for the Trial Chamber to wind back and look at that

25 particular video and look at the expression on the witness's face, and

Page 52237

1 that -- that expression says it all.

2 The same witness talked about the water situation and talked

3 about an exchange that Dr. Prlic had concerning the water situation,

4 because the myth was, and I say "myth," the myth was that one of the

5 reasons there was no water on the east side was because the Croats on the

6 west side had done everything possible to prevent water from going there.

7 And -- and, of course, it turns out that this witness, BD, was utterly

8 ignorant, utterly uninformed of anything that had to do with water. And

9 documents were presented to the witness, and you will see this on pages

10 20897 to 20901 where we showed 1D01566, 1D01567, 1D01568.

11 And then, of course, there is -- there's an interesting -- there

12 is an interesting passage in the transcript, and that is on, I believe,

13 on page 2000 -- 20000 and -- one second, Your Honours. It's 20909 and it

14 goes on to 20910, and it more or less sums up what I've been trying to

15 say here today in part, and that is that the internationals are coming.

16 They're coming uninformed. They don't know the situation. They're not

17 bothering to -- to find out the facts, yet they all come, and they all

18 have one thing on their mind, an opinion, and they start with that

19 opinion that they received from somebody else, and that's the end of the

20 search that they do, and from there they go on.

21 Now, this witness also talked about the milk convoys, and it's in

22 paragraphs 493 and 498 of the Prosecution's brief. And what I -- what I

23 suggest, Your Honours, because I'm running out of time, of course, that

24 first you look at the Makarska Agreement, which is rather clear. That's

25 P10264. Look at Simunovic's testimony as well -- I'm sorry. Look at

Page 52238

1 P03346. Look at 1D02070, because this was advertised. Also look at from

2 Witness DZ, the documents that were shown, P03420, P03428. DZ's

3 testimony of 24 January 2008, 26736 to 26741. Also look at P03539,

4 1D01870. And with this particular witness, that is BD, also look at

5 P03420, P03428, 1D01336, P03453.

6 Time doesn't permit me to go into all of this, Your Honours, but

7 one of the issues concerning the milk convoys, if I can just sort of

8 state our position, which we believe is supported by the evidence, and

9 testimony was heard, and you have the documents before you, and you have

10 to look at more than one witness for this, we heard last week from the

11 Prosecution that humanitarian aid wasn't going forward because there was

12 this constant blocking or constant -- agreements were signed and then the

13 Croats would attack.

14 The Makarska Agreement was a fairly big deal. You had Granic who

15 was the minister of foreign affairs come down, and he took part in that.

16 And no sooner than the agreement was signed, then you have an offensive

17 by the ABiH which effectively blocked the passage of the convoys. And of

18 course there was reporting, there was sort of mixed reporting, it's

19 rather clear who initiated the attack, and we submit that the evidence is

20 rather overwhelming that it was the Muslim forces that initiated the

21 attack, but this is an exquisite example.

22 You can't have -- you can't have it both ways. You can't say,

23 "Well, the humanitarian convoys are not coming in, the HVO is to blame,"

24 when, in fact, you initiate -- you initiate an attack that obviously is

25 going to cause a response, and then say, "See, there goes the HVO, there

Page 52239

1 goes the HZ-HB, there go the Croats again. They're trying to starve the

2 Muslims in Mostar on the east side." It's these sorts of games.

3 And when you look at BD's testimony, Your Honours, and I submit,

4 I truly submit, and I saw this with all due humility, and I'm cautious

5 to -- I'm cautious to -- to say this, but over the past five years we see

6 a lot of legal officers who have -- and it's no great secret that they've

7 summarised testimony as the case is going along. The problem with

8 summarising the testimony is it takes a long time to understand these --

9 these facts. It takes a long time to understand this story, and it may

10 be that during the course of the next six or eight months or a year, or

11 however long it takes you, that I strongly urge the Trial Chamber to go

12 over the entire testimony again. It's tedious, sometimes boring, but

13 it's essential. We've had to do this in the last few months.

14 But going back to the milk convoy, the attack blocked the road

15 towards Croatia. That was my point that I was trying to make, and

16 because they blocked --

17 JUDGE ANTONETTI: [Interpretation] Mr. Karnavas, it might be best

18 to have the break.

19 MR. KARNAVAS: Certainly, certainly. I apologise, Your Honours.

20 My back was to the clock.

21 JUDGE ANTONETTI: [Interpretation] Let's have our 20-minute break.

22 --- Recess taken at 5.35 p.m.

23 --- On resuming at 5.58 p.m.

24 JUDGE ANTONETTI: [Interpretation] Very well. We have an

25 announcement to make.

Page 52240

1 For technical reasons, we're going to finish for today. It's

2 nearly 6.00, and we shall adjourn to resume tomorrow at 9.00. As you

3 know, we work in the morning tomorrow.

4 So, Mr. Karnavas, is that a problem? You can continue tomorrow.

5 MR. KARNAVAS: No. Tomorrow would be excellent, Your Honours.

6 We're [indiscernible] the time.

7 JUDGE ANTONETTI: [Interpretation] The court stands adjourned.

8 --- Whereupon the hearing adjourned at 5.59 p.m.,

9 to be reconvened on Tuesday, the 15th day

10 of February, 2011, at 9.00 a.m.