Page 483

1 provided the OPT with a copy so that they can see clearly what it was

2 that we put on paper and so that they could prepare their response.

3 Just a brief remark before I start. You will observe that some

4 parts of the text in PowerPoint have been mark in the blue; those are our

5 comments. The words in red are the documents that are protected. Slides

6 with such documents should not be broadcast outside the courtroom. That

7 is how we can protect the confidentiality of such documents. We can see

8 on the slides what the topics discussed by General Petkovic's Defence

9 will deal with today. These are rather simple topics as it appears, no

10 matter how complex legally speaking. The first one is only one single

11 common criminal purpose of ethnic cleansing. The second topic deals

12 directly with Milivoje Petkovic and his decisions and participation in

13 the war in Bosnia-Herzegovina.

14 Before I start analysing the judgement itself, we wanted to show

15 you the seven questions we believe to be crucial when findings are made

16 in this case. We wanted to show you this because these are our positions

17 that we base our arguments and conclusions on.

18 The first topic are the so-called alleged political or criminal

19 goals. Both the Trial Chamber and the Appeals Chamber in the Martic case

20 established that a political intent to unite territories with similar

21 ethnic composition in Bosnia-Herzegovina and Serbia and their unification

22 with Serbia is not a crime in and of itself. By this political goal

23 alone, one cannot meet the standard of criminal proceedings. This was

24 similarly expressed in the Seselj case and this is the position of

25 General Petkovic's Defence as well. That is why we will not deal with

Page 484

1 political goal, topics, and discussions; we will deal with specific

2 events.

3 On the next slide, we can see the jurisprudence concerning the

4 mens rea requisite for the existence of a JCE. That is to say, the

5 intent to take part in the furtherance of a criminal plan. It has to be

6 the only reasonable inference that can be concluded from the evidence.

7 The next slide are rules concerning the circumstantial case based

8 on indicia alone. I just wanted to remind you that my learned friend

9 Mr. Khan in his presentation drew your attention several times to the way

10 findings are made in a circumstantial case. All of these are the

11 positions of the Appeals Chamber. We only wanted to remind you of these

12 because we wanted to show that the conclusions of the of the Trial

13 Chamber and its majority were not the only reasonable inference. The

14 findings they made were not reasonable whatsoever, let alone being the

15 only reasonable inference based on facts presented.

16 The following slide indicates the position of the Tribunal in the

17 Kupreskic case concerning the context of certain events during which

18 crimes were committed. During our trial, we frequently encountered the

19 prohibition of our Trial Chamber to pose certain questions as to the

20 context. The explanation provided was that the tu quoque defence was

21 impermissible. Based on the position expressed here, as was the position

22 of all of the Defences in this case, we wanted to point out the

23 importance of the context, not to justify the crimes, but to prove that

24 certain events were not the result of criminal intent. They were simply

25 a result of what was going on in the field.

Page 485

1 The next topic that is crucial, in particular for my client, is

2 the topic of initial and continuing detention. The initial detention of

3 military-aged men is something that as viewed by the Appeals Chamber of

4 this Tribunal is seen as permissible, under the condition that it needs

5 to be established in a timely manner whether such military-aged men are

6 civilian or not. If they are civilians, whether they represent a

7 security threat; if they do not, such men need to be released from

8 detention. This position is completely in accordance with a comment made

9 in the Fourth Geneva Conventions, and I cite the footnote and the page,

10 of commentary. It reads:

11 "Men of military age could represent a security threat for the

12 purpose of security detention where there is a danger of him being able

13 to join the enemy armed forces."

14 This is crucial to view the events which took place on the 30th

15 of June, 1993.

16 The next topic deals with ethnic balance and whether it should or

17 should not be changed if there is a criminal plan in existence of ethnic

18 cleansing. If it needs to be changed, whether it can be changed

19 temporarily in order for the criminal intent to -- standard to be met.

20 We cite the judgements of Appeal Courts -- Appeal Chambers, where it is

21 clear that an ethnic map of a certain area has to be changed if we want

22 to show that certain events took place with the intent of ethnic

23 cleansing. We are completely in agreement with the position as expressed

24 in the jurisprudence, that such changes need not be permanent, that such

25 changes be temporary in nature in order to be able to find the existence

Page 486

1 of ethnic cleansing. In any case, this is something that is crucial to

2 our position, and that is that an ethnic map has to be changed -- or

3 ethnic balance has to be changed.

4 The topic of forcible removal and ethnic cleansing is also

5 something that is very important in this case. We wanted to point out

6 that under the Geneva Conventions there is a difference between

7 individual and en masse forcible removal, i.e., deportation. According

8 to the Statute of this Tribunal, unlawful deportation or transfer

9 pertains to civilians. The term of "ethnic cleansing" is a colloquial

10 one rather than legal; it pertains to the creation of an ethnically

11 homogeneous area. Through the commission of crime of deportation or

12 forcible removal of one, two, three, or a dozen people in a certain area,

13 does not appear to be en masse deportation or en masse forcible removal.

14 Therefore, the crime of ethnic cleansing cannot be established. In other

15 words, individual crimes of deportation can appear in a certain area as

16 well as that of transfer without the existence of ethnic cleansing. In

17 that case, it is unfounded to see those crimes as something that was

18 committed with the intent to ethnically cleanse the territory in

19 question.

20 Your Honours, we will attempt to explain our position of the

21 evidence and judgement based on only one single common criminal plan of

22 ethnic cleansing. These are the five topics we wanted to tackle in this

23 part of the presentation.

24 Should you receive [as interpreted] additional clarifications on

25 any of the issues, do interrupt me.

Page 487

1 As part of the first topic, we wanted to show in what way the

2 majority modified the Prosecution's case. The Prosecutor submitted its

3 indictment with 26 crimes with numerous locations and thousands of

4 individual crimes under all existing types of liability. At the end of

5 the case, having led all the witnesses, the Prosecutors formulated their

6 case in their final brief. Based on all evidence presented, the

7 Prosecutor stated what, in his view, was the criminal plan, what crimes

8 were encompassed by that plan as part of JCE 1, and what crimes were seen

9 as a foreseeable consequence, or JCE 3. The Chamber completely ignored

10 this Prosecution case and the crimes defined as such, creating their own

11 JCE case.

12 We wanted to show this by the example of the crime of murder.

13 Let us look at the next slide and then we can go back to this one.

14 This is a brief analysis of all the crimes under the indictment,

15 whereby we attempted to do the following as precisely as we could. We

16 tried to see how many paragraphs were connected to particular crimes by

17 the Prosecution, and at a first glance, it appears to be the case of

18 detainment, conditions in detention centres, and the treatment of

19 detainees. Over 50 per cent of all crimes pertained to this particular

20 crime.

21 Let us look at the crime of murder. It amounts to only

22 7 per cent of the overall amount of crimes encompassed by the indictment.

23 There are no charges brought forth for attacking undefended villages or

24 towns. If we analyse the evidence, we can see that in even the smallest

25 location where there was fighting, there was resistance and that these

Page 488

1 were not attacks on civilians.

2 The next slide, please. Your Honours, here we tried to show how

3 the majority decided on the crime of murder, that is to say, under

4 charges 2 and 3 of the indictment. In the first line, the first column,

5 we can see how the Prosecutor presented it and we have all the locations

6 here involving the crime of murder. We checked all the paragraphs in

7 our -- in the indictment and, indeed, the paragraphs mentioned refer to

8 the crime of murder.

9 Let us look at how the Chamber made its findings about the

10 responsibility for the crime of murder. They established that in terms

11 of three locations the crime of murder pertained to JCE 1, and for the

12 other location it is involves JCE 3. So three locations JCE 1; and the

13 remaining locations, JCE 3. In the -- this is what we can find in the

14 legal analysis part of the judgement. Although in one of the paragraphs,

15 the Trial Chamber stated that all of the crimes of murder fall under

16 category of JCE 1. There seems to be some kind of disorder there. It is

17 impossible to establish a logical link, it seem, in the reasoning of the

18 Chamber. If we take a look at which of the accused have been sentenced

19 for that particular crime, as we can see in volume 4, and we have the

20 crimes enumerated there under the two types of liability, if you do that,

21 you will encounter a paradoxical fact. For the crimes of murder

22 committed in the municipalities of Prozor and Jablanica, it was only

23 Jadranko Prlic who was sentenced, the president of the civilian component

24 of the HVO. If you compare that finding with the factual findings in the

25 judgement, you will not come across a single logical or factual link. If

Page 489

1 we look at the crimes committed at the Heliodrom and the verdict

2 pertaining to Bruno Stojic, you can see that he was found guilty under

3 JCE 1 as well as JCE 3; whereas for other locations, no one was pronounce

4 the guilty. And we believe the accused should be accused -- acquitted in

5 that case.

6 You can see from what I've presented so far that it is impossible

7 to establish a link between the factual findings about the events in the

8 field with regard to specific accused and the Trial Chamber's decision on

9 sentencing.

10 Let us go back to our slide number 12. If we take the example of

11 this single crime, we can see that the final brief of the OTP defines

12 which crimes are considered core crimes, amounting to JCE 1, as crimes

13 that were committed as a foreseeable consequence connected to the events

14 of the 30th of June, 1993. Irrespective of the fact that the Prosecution

15 is our adversary, we believe we can fairly say that they invested maximum

16 effort in drafting this part of the indictment based on the evidence they

17 possessed, and I shared this thought with my learned friend,

18 Mr. Stringer.

19 The Trial Chamber completely ignored their definition of the case

20 and established their own. Everything I said concerning the crime of

21 murder applies to the crimes enumerated here. We are speaking about 12

22 crimes in total, crimes from Counts 21, 10, 11, 12 to 14, 15 to 17, and

23 18. The Trial Chamber pronounced its verdict contrary to the case as

24 presented by the OTP in their final brief. In that sense, I fully

25 endorse the position of the Prosecution when they stated that does not

Page 490

1 impact on the right accused to a fair trial, in the sense that they were

2 informed in a timely fashion of the counts of their indictment because

3 the indictment did cover all the possible time modalities and types of

4 liability. However, we are of the view that the Trial Chamber erred in

5 law in a different way. It went beyond the framework of the indictment.

6 It is seen as impermissible in criminal law in our country and all the

7 encounters of the former Yugoslavia as well as elsewhere. These are

8 sufficient grounds to vacate a judgement.

9 Let us look at slide 14 next and the topic of ethnic cleansing.

10 In the left column, Your Honours, we presented quotes or extracts

11 regarding the definition of ethnic cleansing as defined by the majority

12 in their judgement. I also provided a reference, paragraphs 41 to 44 of

13 volume 4 and 65 and 68.

14 As you can see in the text, the Trial Chamber stated that there

15 was a single common criminal purpose; and in order to further that plan,

16 use was made of the political and military apparatus, that there was

17 political purpose in order to further the plan as of mid-January, and

18 that many crimes were committed. Only in a single paragraph, as defined

19 in the following way, it is stated that these are crimes that fall within

20 the framework of the common plan. This is how the majority defined the

21 criminal plan or criminal purpose of ethnic cleansing. A criminal plan

22 defined in that way is defined incorrectly and it invalidates the

23 judgement.

24 In the right column, we attempted a brief comparison with the

25 position of the Trial Chambers in other cases, the cases being Tadic,

Page 491

1 Djordjevic, and Brdjanin. If the purpose is not criminal in and of

2 itself, one needs to define the criminal means used or intended to

3 further that plan as well.

4 The next slide presents our basic thesis. We wanted to try to

5 simply it as much as possible. Our first thesis is that there was no

6 common criminal plan of ethnic cleansing of Muslim population. The

7 second thesis is that until June 1993, there were no changes of the

8 ethnic balance or map in any areas of Herceg-Bosna, and we intend to

9 prove that. Our third thesis is that on the 30th of June, 1993, it

10 wasn't the authorities of Herceg-Bosna that intended to implement their

11 criminal plan of ethnic cleansing unprovoked, as stated by the majority.

12 On that day, certain events took place. The HVO lost territory - without

13 me going into any further detail because we intend to expand on this

14 topic later on. I just briefly wanted to say that day, urgent security

15 measures needed to be taken because there was a very true danger of HVO

16 losing control over the entire territory of the Mostar region.

17 Just a few words about the alleged necessity of ethnic cleansing.

18 In my view, this is a key topic in the judgement and I want to devote

19 quite some time to it. Unfortunately, the Chamber did not directly say

20 that ethnic cleansing was a prerequisite for Bosnia-Herzegovina to be

21 organised as a complex state in which one or several entities would have

22 a majority Croat population. Why do I say "unfortunately"? Because, by

23 failing to formulate this directly, the Chamber deprived us of the

24 possibility to express our view on this claim. However, this claim is

25 implicit in the entire judgement; it is implicit, especially in

Page 492

1 paragraph 41 of volume 4 that we will discuss a bit later. This

2 implication is simply not correct. Herceg-Bosna was established towards

3 the end of 1991. The Chamber did not find that the establishment of

4 Herceg-Bosna was a -- marked the beginning of the crime of ethnic

5 cleansing, and it is exceptionally important to bear in mind that

6 Bosnia-Herzegovina under all plans made by the international community

7 were supposed to be organised as a complex state in which one or more

8 territorial units would have a majority Croat population. That was the

9 case with the Cutileiro Plan from March 1992, that was the case with the

10 Vance-Owen Plan from January 1993, and it was equally the case under the

11 Owen-Stoltenberg Plan from August 1993. Not then and not later did

12 anyone believe that organising Bosnia-Herzegovina as a complex state, a

13 Federation, a confederation or any other form necessarily implies any

14 ethnic cleansing. To believe that representatives of the international

15 community created the maps that we will see later during this

16 presentation implied ethnic cleansing in one of the territories are -- is

17 simply unreasonable. We don't believe that a single reasonable trier of

18 fact could conclude that any work in favour of organising

19 Bosnia-Herzegovina as a complex state implied ethnic cleansing.

20 Let us take a look at how the Trial Chamber analyses evidence and

21 grounds its thesis on ethnic cleansing. That's paragraph 41. We will

22 present this analysis in the following way. In one column, we present

23 the findings from the judgement. The next column contains the evidence

24 on which it is based. And then in the right-most column, we present our

25 views in blue.

Page 493

1 The majority of the Trial Chamber made findings in paragraph 41,

2 volume 4, that there was only one single criminal purpose, that is to

3 say, domination of Croats through ethnic cleansing of the Muslim

4 population. There is no footnote or any piece of evidence for this

5 finding.

6 In the next paragraph, the Chamber says, We will now present the

7 reasons. Let us see how it did that. In paragraph 43 - as we've heard

8 several times in this courtroom - the majority says that the leaders of

9 Herceg-Bosna believed that to achieve the political purpose in the

10 long-term, it was necessary to change the ethnic makeup of the

11 territories claimed to form part of the HR HB. That is based on P89 and

12 P21. The first piece of evidence is a transcript, that is to say,

13 minutes of the meeting of 27 December 1991. Let me say just briefly.

14 There is not a single word about ethnic cleansing in those minutes.

15 The second document is a book by a relatively unknown author,

16 Anto Valenta, which also does not contain a single word about ethnic

17 cleansing. Therefore, Your Honours, we believe that this finding of the

18 majority does not only fail to be the only reasonable but totally

19 impossible. We believe that not a single reasonable trier of fact could

20 have concluded that any of the leaders of Herceg-Bosna thought ethnic

21 cleansing was necessary. The judgement says that from October 1991,

22 Prlic, Stojic, Petkovic, and Praljak were aware that the implementation

23 of the purpose of -- would involve the Muslim population moving outside.

24 That is based on P11380. However, neither in the factual findings nor in

25 this document do we find a single word about ethnic cleansing.

Page 494

1 Now let us look at paragraph 44, where the Chamber notes that in

2 mid-January 1993 the leaders of Herceg-Bosna decided to proceed with the

3 plan of ethnically cleansing the Muslims. In the next column, we show

4 the documents from the footnote on which the Chamber bases this finding.

5 We analysed all this evidence thoroughly and we can say briefly. The

6 evidence pertaining to that time-period do not contain a single word

7 about ethnic cleansing, and the rest of the documents do not pertain to

8 January 1993 at all, nor do they speak to any events of ethnic cleansing

9 in the Gornji Vakuf area. Based on this evidence, in our view, not a

10 single reasonable trier of fact could find that there was a criminal plan

11 to move out the Muslim population beginning in mid-January 1993.

12 If we continue analysing the judgement in relation to

13 Gornji Vakuf, that's paragraphs 45 and 48 of volume 4, we will see that

14 there was no ethnic cleansing in Gornji Vakuf at all. There were no

15 incidents that could be even remotely considered as ethnic cleansing.

16 The HVO indeed attacked four villages. Those four villages were

17 defended. And the Chamber concluded - I'm not going to read everything

18 in this slide - but the Chamber found that a number, I emphasise a number

19 of civilians, were moved from Hrasnica and Dusa. Some civilians were

20 moved from Hrasnica and Dusa. We cite a document from the BH army,

21 P1226, in which the Army of Bosnia-Herzegovina discusses an evacuation of

22 population from Hrasnica and Uzricje. We will deal more with this later.

23 Let us look at this table. This is Gornji Vakuf, the 1991

24 census. You can see these four villages with their total population,

25 with their ethnic makeup; but what we wish to demonstrate with this slide

Page 495

1 is that there were 50 settlements in the Gornji Vakuf municipalities. So

2 HVO did attack these four populated areas, but evacuating a few Muslims

3 from a few villages certainly does not amount to ethnic cleansing. In

4 this slide, we wanted to provide a simple summary of what we've just

5 said. Several civilians moved from Hrasnica to -- and Uzricje and

6 Bugojno, that is to say, another municipality, and they were escorted by

7 the UNPROFOR. All the other residents remained in the Gornji Vakuf

8 municipalities. These are our conclusions concerning Gornji Vakuf and we

9 believe they are the only reasonable conclusions possible.

10 In January 1993, the ethnic map of the municipality was not

11 changed. Not a single reasonable trier of fact could have come to the

12 conclusion that the HVO military actions in Gornji Vakuf in January 1993

13 were launched to further the common criminal plan of ethnic cleansing of

14 Muslim population; and therefore, the Petkovic's conviction for crimes

15 committed in this municipality in January 1993 under the JCE form 3

16 should simply be invalidated.

17 Now, one remark that we believe is especially important for a

18 correct understanding of the events on the ground. Your Honours, from

19 late January to mid-April 1993, there is not a single charge in the

20 indictment, so nothing is happening at this time. The Prosecutor

21 believes that the criminal plan of ethnic cleansing of Muslims was

22 created in January, but at this time - apart from the incident in four

23 relatively small villages - nothing happened in January 1993. This fact

24 alone is sufficient proof that at that time there was no criminal plan of

25 ethnic cleansing of the Muslim population.

Page 496

1 Now let us look at Jablanica in April 1993. The Chamber states

2 itself here in paragraph 46 that there were tensions in this period up to

3 mid-April -- let me just note that there is no such claim in the

4 indictment. In mid-April, indeed, a conflict broke out, and we will

5 analyse these connects further. HVO, indeed, attacked Sovici and Doljani

6 villages. Certain crimes were, indeed, committed there. The Trial

7 Chamber established there were skirmishes and fighting and HVO activity

8 in these villages was partly defensive. But what is of import to us in

9 view of the criminal plan defined as it was is the claim that this

10 particular number of civilians was deported from Jablanica municipality,

11 450 civilians. This simply incorrect. In paragraph 613, volume 2, the

12 Chamber held that it had no sufficient evidence as to what happened with

13 the civilians from Sovici who were initially indeed taken away from

14 Jablanica municipality and into the Gornji Vakuf municipality. This is

15 not true. There is evidence in the case file that clearly shows that

16 these civilians arrived at Jablanica in the beginning of June 1993.

17 Just a few crucial facts as to what really happened. In early

18 May 1993, this area was visited by commanders of the Army of

19 Bosnia-Herzegovina and senior officers of the HVO, including Petkovic;

20 the civilians in Sovici, together with ABiH commanders, discussed whether

21 to stay or to go. They expressed their wish to leave Sovici, whereas

22 Halilovic and Pasalic requested from the HVO that they secure buses, and

23 the HVO obliged. However, due to obstacles on the road, the buses were

24 not able to go to Jablanica; instead, they turned to Gornji Vakuf.

25 However, several weeks later, these civilians nevertheless arrived at

Page 497

1 Jablanica.

2 Here is the census of Jablanica from 1991. We show all the

3 settlements in Jablanica. You can see from these figures that Doljani

4 was a majority-Croat village; Sovici, a majority-Muslim village. The

5 next slide, according to the same methodology as Gornji Vakuf, we display

6 this data and evidence. In the right column, you will see the exhibits

7 for this allegation that I made, this assertion that I made, that the

8 civilians remained in Jablanica. It's P2825. Witness CA, transcript

9 10042, transcript 10311. And there were also Defence witnesses who

10 discussed this, but I will deal with that in my response, if necessary.

11 And the conclusion for Jablanica. The ethnic map of Jablanica

12 has not been changed after the events of mid-April 1993. All the

13 civilians from this municipality remained there. Therefore, no

14 reasonable trier of fact could have concluded that the HVO military

15 actions in that period were launched to the further criminal plan of

16 ethnic cleansing of the Muslim population; and therefore, Petkovic's

17 conviction for crimes in the municipality of Jablanica in April 1993

18 under the JCE form of liability should be vacated.

19 The next municipality, Your Honours, is Prozor. We show in a

20 simple manner here that the Chamber itself says that there was no ethnic

21 cleansing in Prozor. There were no deportations or transfers. The

22 Chamber held that up to the end of August 1993 Muslims remained in their

23 hometowns and villages, and that's when the expulsion of Muslims began.

24 The conclusion for Prozor, April 1993, there are no charges for the

25 crimes of deportation or forcible transfer. Muslims were not removed

Page 498

1 from Prozor, the ethnic map was not changed, and no reasonable trier of

2 fact could consequently have come to the conclusion that any crimes were

3 committed at that time to further the common criminal plan of ethnic

4 cleansing. Accordingly, Petkovic's conviction for crimes in Prozor under

5 the JCE form of liability should be invalidated.

6 Now let us move to Mostar, which is a bit more complicated but

7 still quite simple, in April and May. In this slide, Your Honour, we are

8 displaying the key thesis of the Trial Chamber for this period in Mostar.

9 We wish to emphasise paragraph 50, where the Chamber notes that Muslim

10 refugees from Central Bosnia are arriving in Mostar. We wish to point

11 out that this claim about the arrival of Muslim refugees from

12 Central Bosnia continuously throughout this period simply contradicts the

13 fact that in January 1993 a criminal plan was formed to ethnically

14 cleanse the Muslims. We also wish to point out the assertions from

15 paragraph 53 but not only all the paragraphs pertaining to the arrival of

16 Croats from Central Bosnia simultaneously with the Muslims; all of theme

17 were fleeing primarily because fighting with Serbian army and later of an

18 outbreak of an open conflict between Army of Bosnia-Herzegovina and the

19 HVO, Croats flee from the areas conquered by the Army of

20 Bosnia-Herzegovina. There's one particular incident we wish to underline

21 because the Trial Chamber made an inaccurate finding. There is no ethnic

22 cleansing in this period. As the Trial Chamber correctly held, there was

23 no expulsion of Muslims in May -- there were expulsions in 1993. This

24 claim is completely incorrect. It would take a lot of time to explain

25 why, but we dealt with it in our brief in paragraphs -- regrettably we

Page 499

1 did not write the judgement but all right. So in paragraphs 63 to 67.

2 To finish with Mostar, in April and May 1993, Muslim refugees are

3 arriving in Mostar. For April 1993, no crimes are charged in the

4 indictment. The ethnic map of Mostar in that period is not changed in

5 favour of Croats or to the detriment of Muslims. No reasonable trier of

6 fact, we believe, could have come to the conclusion that the events in

7 Mostar were a consequence of any intent to implement a plan of ethnic

8 cleansing. Therefore, we believe that Petkovic's conviction for crimes

9 in Mostar in this period under the JCE should be vacated.

10 For the brief period October 1993 in Stupni Do, we, Your Honours,

11 do not find fault with any finding about the crimes established, but we

12 wish to say that the Prosecution does not charge any crimes of

13 deportation or forcible transfer, and the Trial Chamber did not find that

14 any military actions were launched for the purpose of ethnically

15 cleansing the Muslims from that area. And therefore, we believe that no

16 reasonable trier of fact could conclude that the crimes in Stupni Do were

17 committed to further the common criminal plan of ethnic cleansing of

18 Muslim population. Accordingly, Petkovic's conviction for crimes

19 committed in Stupni Do in that period under the JCE should be reversed.

20 I also wish to emphasise that the Prosecutor himself regarding

21 these allegations states that there was no ethnic cleansing and liability

22 should be considered under other forms of liability envisaged by the

23 Statute.

24 And to conclude about the ethnic cleansing. So, in Gornji Vakuf,

25 in January 1993, the Muslim population was not removed. In Jablanica in

Page 500

1 April 1993, neither. Neither in Prozor in April 1993. And in Mostar

2 until June 1993, quite indubitably and unequivocally there were no

3 deportations. The same goes for Vares and Stupni Do.

4 Therefore, we believe, Your Honours, that for all the crimes in

5 this period in these locations, there are no grounds for conviction under

6 JCE.

7 Your Honours, now we come to the topic of the 30th of June, 1993.

8 JUDGE AGIUS: One moment. Judge Meron.

9 JUDGE MERON: Thank you.

10 Counsel, could you enlighten the Appeals Chamber as to whether

11 these documents in which you tried to show that there were no demographic

12 changes in certain localities, have these documents been presented to the

13 Trial Chamber? And, secondly, could you tell us what is the source in

14 terms of official data on which you base yourself in producing these

15 charts?

16 MS. ALABURIC: [Interpretation] Your Honour, I hope that what I'm

17 going to -- that this reply now will not be taking away from my time of

18 two hours. So I can reply briefly [In English] Just to know to be brief

19 or not.

20 JUDGE MERON: We don't have several types of accounting. Judges

21 are entitled to ask you questions.

22 MS. ALABURIC: Okay.

23 [Interpretation] Your Honours, we did not discuss the criminal

24 plan of ethnic cleansing in the hearing as the only criminal plan, as the

25 key substance of JCE. The indictment was created in the way that all 26

Page 501

1 crimes were all under the JCE mode of responsibility. We dealt more can

2 facts, who was moved out, where, what was happening in specific

3 municipalities; but the topic of ethnic cleansing as the only objective

4 of the criminal intent, as the core crime, was actually not a topic of

5 discussion. And this is what I stated. In the judgement, by creating

6 the JCE in such a way, the Trial Chamber completely changed the case that

7 we were actually presenting before this Tribunal.

8 As for evidence, all the exhibits that I referred to here are

9 cited mostly in the judgement. Most of the exhibits that I referred to

10 are from the Prosecution witnesses. And if you're asking about

11 statistical data -- I apologise, Your Honours, are you interested in

12 learning whether statistical data is derived from or which data that I'm

13 referring to here?

14 JUDGE MERON: I just wanted to make sure, counsel, that are

15 you -- the materials that you are citing are based on some kind of

16 official data.

17 MS. ALABURIC: Yeah.

18 [Interpretation] All that I have been saying is based on

19 documents that are in the case file, except for the tables which actually

20 are analysis of the judgement that I created. All other documents are

21 documents that are exhibits in this case.

22 As for the statistical data, that is data from the population

23 census of 1991, but I think that that is not something that is in

24 dispute.

25 [In English] If I may proceed, please.

Page 502

1 JUDGE AGIUS: Yes, go ahead.

2 MS. ALABURIC: [Interpretation] We come to the topic of the 30th

3 of June, 1993, when full-out war began between the BiH army and the HVO.

4 Your Honours, you can look at what the Trial Chamber established

5 happened on the 30th of June or up until that date. The Trial Chamber

6 knows or knew that at that time the BiH launched an offensive. The Trial

7 Chamber knew that Muslim soldiers of the HVO deserted from some units of

8 the HVO and joined the Bosnia-Herzegovina army. The Trial Chamber knew

9 that because of that betrayal, the HVO lost control over certain areas in

10 the Mostar region. The Trial Chamber knew that the B&H army at that time

11 intended to link up the Mostar area with the area of Konjic and

12 Jablanica. The Trial Chamber knew that the HZ HB authorities took

13 certain actions in response to the attack launched on the 30th of June,

14 1993. All these things were established in volume 2, paragraphs 878 to

15 885.

16 Your Honours, we believe that already on the basis of these

17 assertions each reasonable trier of fact would conclude from the evidence

18 that measures undertaken on the 30th of June cannot represent the only

19 consequence and understand that their only objective was to cleanse the

20 Muslim population. We are going to show as we go on what was going on at

21 the fronts in Bosnia and Herzegovina. At the start, could you please

22 look at what the Prosecutor stated in the Hadzihasanovic indictment.

23 We're already seen that in the courtroom over the past couple of days,

24 but I feel it's all right to remind you of that. The Prosecutor states

25 that from the April -- April 1993 and early summer 1993, the Army of

Page 503

1 Bosnia and Herzegovina carried out a series of attacks against the HVO

2 including - but not limiting itself to - the municipalities and then they

3 list the municipalities: Bugojno, Busovaca, Maglaj, Novi Travnik,

4 Travnik, Vares, Vitez, Kakanj, and so on and so forth.

5 The Prosecution asserts that those operations by the armija

6 culminated in a massive attack in June 1993 at Kakanj, Travnik, and

7 Zenica, among others. These assertions by the Prosecution are absolutely

8 accurate. We will show documents in support of that. All these

9 documents -- I'm not going to have enough time to cite all of them so

10 that we could have them in the transcript, but all these documents can be

11 found in Annex I of the Petkovic appeal brief.

12 A document at the end of March 1993, 4D438, it's a document by

13 the BiH army, speaks about the events in Konjic. Your Honours, in

14 mid-April 1993, Konjic is the key to all subsequent events. In early

15 April, HVO report, P1083 -- 1803 about the attacks on the

16 Bosnia-Herzegovina army. Reports by the armija about its own

17 activities -- excuse me, I cited the wrong document. It's a HVO document

18 confirming combat actions by the Bosnia and Herzegovina army, 2D774.

19 Then we have a series of documents from early April and then from

20 mid-April, where you can see what was going on in Konjic and the

21 surrounding area. We're going to stay on slide 38 a little bit longer.

22 We need to keep this slide confidential. There is a protected document,

23 so I kindly ask that the slide not be broadcast outside of the courtroom.

24 May I continue, Your Honours?

25 I would like to draw your attention, in particular, Your Honours,

Page 504

1 to a document in the upper left-hand corner, 4D599. This is a report by

2 the BiH army of the 17th of April, 1993, and we can see here the

3 operations that are being carried out and the conclusion at the end. We

4 will try to have the work in Konjic completed as soon as possible and

5 then start with all brigades counter attacks in two directions. The

6 first towards Jablanica and Mostar; and the second towards Prozor and

7 Rama. We're going to speak specifically about these initial activities

8 under 1 towards Jablanica and Mostar.

9 Your Honours, you can see in all of these documents that the BiH

10 army in mid-April 1993 launched operations to capture areas that, up

11 until then, were under the control of the HVO. We draw your attention to

12 a protected document in the lower right-hand corner which states that the

13 B&H army managed to push the HVO out of many areas and it seems that the

14 Croat population was fleeing from those areas. This is a report from the

15 14th of June, 1993.

16 The next document, we will now look at slide 39. That is also a

17 protected document, protected slide. The document in the upper

18 right-hand corner is a report about how, on 13th of June, the B&H army

19 captured Kakanj, and we can also see that the B&H army offensive

20 continues. We are showing a speech by Arif Pasalic here of the 30th of

21 June, 1993. This is document 2D448. This speech was also referred to my

22 learned friend Mr. Karnavas in his submissions. On that day, the

23 commander of the BiH army calls on all citizens that can carry a pistol

24 or a stone to begin killing criminal Ustashas, and so on and so forth.

25 There is a report of the 1st of July, 1993. It's in the lower left-hand

Page 505

1 corner, 2D1389, and we can see the areas that were captured by the Army

2 of BiH, not just the Tihomir Misic barracks, Your Honour, as this is a

3 simplified conclusion by the majority but actually the entire northern

4 area, north of Mostar, and could you please look at the concluding

5 sentence which states:

6 "According to a report by the 4th Corps, the units of this corps

7 linked up with the forces of the 6th Corps, which will have a positive

8 effect on the coming combat operations."

9 The 4th was in Jablanica and the 6th Corps was in Mostar. Oh,

10 I'm being corrected by the Generals, actually it's the other way around

11 as far as the corps locations are concerned.

12 Just a brief explanation about this so on our next slide, slide

13 40, and now we can go back to open session.

14 The HVO, of course, has information about what is going on in the

15 ground, in the field. At the time General Petkovic, in late June --

16 JUDGE AGIUS: We might -- you might have given the impression

17 that we were in private session, but somehow we were transmitting just

18 the same to the public. That's not the case. What we were not

19 transmitting are two documents only, but otherwise we were in open

20 session and we are still in open session. Okay. Thank you.

21 MS. ALABURIC: [Interpretation] Thank you, Your Honour, for your

22 clarification.

23 In late June 1993, Petkovic was trying to inform representatives

24 of the international community -- this is slide 40. Slide 40. We cannot

25 see the slides on our screen. Oh, everyone else has them but we don't.

Page 506

1 In any event, in late June, General Petkovic was trying to inform

2 General Morillon and other representatives of the international community

3 and ask them --

4 JUDGE AGIUS: Can I -- one moment. Can I ask for technical

5 assistance to the Defence, please.

6 In the meantime, you can proceed. It's your own document, so you

7 know it.

8 MS. ALABURIC: [Interpretation] Everything is all right now; we

9 have it on the screen. This is document 4D702, and we gave you a short

10 excerpt from the testimony of General Petkovic and Mr. Radmilo Jasak. I

11 wanted to draw your attention to the words of General Petkovic:

12 "I did not even think that everything would happen in that form

13 and manner." This is transcript 49585.

14 The following slide, slide 41, it's just a brief reminder about

15 the events after the 30th of June.

16 In July 1993, the BiH army captured Kostajnica, yes, Kostajnica,

17 which was a Croat enclave in the Konjic municipality; then Fojnica; then

18 Bugojno; then Doljani. I would like to remind, Your Honours, that

19 Doljani is the same place, the same village, that we spoke about in

20 relation to April 1993.

21 In October 1993, the BiH army captured some locations in the

22 Vares municipality. And in November 1993, the ABiH enters Vares.

23 Could we now look at maps? Can we look at a representation of

24 what was going on. So the first map in the upper left-hand corner shows

25 Central Bosnia in January 1993. HVO-control territories are in blue; and

Page 507

1 territory under control of the B&H army is in green. When you look at

2 these four maps, you can see right away that by -- mid-1993, the area

3 under the control of the B&H army is becoming larger. I'm going to

4 repeat what happened month by month, but this is really all -- evident

5 when you look at these maps.

6 The next slide is what happened in Central Bosnia by the end of

7 the year. And you can see at the end that in Central Bosnia, there are

8 only two enclaves left. On the lower left-hand corner, you can see how

9 many Croats from which municipality left after the B&H army captured that

10 area. It's the map on the lower right-hand corner.

11 What we said about Mostar, now we can also on the maps. We can

12 see the map on the left in blue is territory under the control of the

13 HVO; territory in green is BiH army. And then you look at the situation

14 after the 30th of June, 1993. So on the 30th of June, 1993, the

15 territory around Mostar was captured by the Army of Bosnia and

16 Herzegovina, in co-operation with Muslim soldiers in the HVO.

17 The next map of slide 45 shows us the Mostar, Jablanica, and

18 Konjic area, that region. And can you see what the situation was on the

19 30th of June and what the situation was on the 30th of June.

20 Could you please keep these maps in mind when we begin analysing

21 the security measures that were adopted on the 30th of June and why the

22 30th of June is a turning point in the conflicts between the armija and

23 the HVO.

24 And now, briefly, I can summarise what I have just said. From

25 April 1993, the BiH army continuously broadened territory under its

Page 508

1 control. Military actions of the BiH army are relevant as evidence that

2 certain actions, activities, measures taken by the HVO authorities were

3 in reaction to and the consequence of the ABiH offensive actions and

4 plans, and not a criminal plan of ethnic cleansing of Muslim population.

5 Therefore, we believe, Your Honours, that no reasonable trier of fact

6 could have come to the conclusion that on the 30th of June, 1993

7 authorities of the Herceg-Bosna decided to implement the plan of

8 ethnically cleansing the Muslims population without any provocation at

9 all.

10 Now we're going to deal with some protected documents, so I also

11 kindly ask that these documents be not broadcast.

12 There are numerous documents on this topic. We wanted to show

13 you this issue through documents by representatives of the international

14 community. Those representatives reported and noted that Muslim soldiers

15 of the HVO deserted. They joined the Army of Bosnia and Herzegovina and

16 because of that, the HVO - and perhaps the HVO, amongst other things -

17 lost control of the area around Mostar. There was a danger that the HVO

18 would completely lose control in the region of Mostar unless measures

19 were taken.

20 The next slide does not have any protected documents. There is

21 some information, Your Honour, generally about Muslims in the HVO.

22 Dr. Prlic's Defence spoke to you about how the HVO was the only

23 multi-ethnic army in Bosnia and Herzegovina at the time. We absolutely

24 support that assertion, and we're going to prove that, the same as

25 Praljak and Stojic's Defence. The HVO was formed as a joint Army of

Page 509

1 Croats and Muslims who lived in the area of Herceg-Bosna.

2 We would now like to show you from a series of documents that the

3 Bosnia and Herzegovina army was continually in touch with Muslim soldiers

4 of the HVO. These documents can be found as Annex 13 of Petkovic's final

5 trial brief, without this first document that I'm nothing going to

6 present to you.

7 All of the previous Defence teams also pointed this out. We just

8 wanted to remind you of the document 2D150; it is from June 1993. It was

9 at the time of the fierce clashes between the ABiH and HVO. In the

10 table, you can see the ethnic composition of the HVO brigades. Please

11 look at the 1st Brigade: 35 per cent were Muslim; in the 2nd Brigade,

12 nearly 21 per cent; in the 3rd, a bit over 13 per cent. Before this

13 date, the number of Muslim soldiers was significantly higher. There were

14 units with up to 50 per cent of Muslim soldiers in their ranks. The HVO

15 was, indeed, created as a joint force of Croats and Muslims.

16 While I am on this topic, I wanted to tell you why I refer to the

17 term "Muslims" rather than "Bosniaks." It is simply because at the time

18 I'm discussing the official title of the Bosniak people was Muslim, or

19 Muslims. As for the rest of the documents here, you can see that the

20 authorities of Herceg-Bosna believed that there might occur a security

21 problem due to the high figures of Muslims in the HVO. However, nobody

22 raised it as an issue, nor was it created into a problem. The Muslims

23 were in no way discriminated, nor were they prevented from joining the

24 HVO. We, in particular, wanted to point out the document 4D568 which is

25 at the bottom right side dated the 16th of April, 1993. Have a look,

Page 510

1 Your Honours, at this quotation from April 1993. There is a possibility

2 of an all-out war with the HVO and the need to establish contact with the

3 Muslim soldiers so that at the right moment they could join the HVO --

4 THE INTERPRETER: Interpreter's correction: The ABiH.

5 MS. ALABURIC: [Interpretation] This is an ABiH document

6 testifying to the plans that the Muslim soldiers of the HVO at some point

7 joined the ranks of the ABiH.

8 The next slide shows a protected document. Here can you see

9 4D 33, also mid-April 1993. It reads:

10 "Call upon all Muslim members of the HVO to place themselves on

11 the side of their people ..."

12 A document of the 18th of April, which is 4D34, reads as follows.

13 It says:

14 "... establish co-operation with our soldiers in the HVO and

15 point out the seriousness of the situation to them ..."

16 Let us move on. Another ABiH document, 4D35. There was a

17 separate plan of informing the Muslim soldiers of the HVO in the units

18 specified or in the units that were in the municipalities specified here.

19 Document 4D473, it is an indirect threat to a HVO commander. It

20 says:

21 "I mention ... that a large number of Muslim soldiers are in your

22 formations ..."

23 The last document on the left is 4D36 dated the 2nd of May, 1993.

24 An ABiH commander mentions what operations need to be undertaken and

25 ordered a linkup with "our men in the HVO," specifying their tasks in

Page 511

1 Capljina.

2 The last bullet point of the document reads:

3 "Seize the town of Stolac with our people in the HVO."

4 Let us conclude now with the 30th of June, 1993, Your Honours.

5 As regards General Petkovic's order to isolate the Muslim soldiers of the

6 HVO as well as Muslim military conscripts, all this needs to be viewed

7 through the prism of events of the 30th of June, 1993. Hence, do bear in

8 mind what took place on that day. The ABiH led offensive operations

9 against the HVO and continuously broadened territory under its control.

10 ABiH conquered territory north of Mostar, in co-operation with the HVO

11 soldiers of Muslim ethnicity. Similarly, if such scenario happened in

12 other HVO units, the HVO might lose control over entire territory.

13 Immediate security measures had to be taken and they, indeed, were taken.

14 Owing to those measures, the lines of confrontation in Mostar remained

15 unchanged and nearly unchanged in the Mostar area, although the fighting

16 lasted until April 1994. That is why we believe, Your Honours, that no

17 reasonable trier of fact could conclude that the measures undertaken by

18 the Herceg-Bosna authorities on the 30th of June, 1993, were -- they

19 were -- not the consequence of something that was going on in the field.

20 They were a direct result of it. In our view, no reasonable trier of

21 fact could conclude that those measures were taken with the aim of

22 implementing the criminal plan of ethnic cleansing of Muslim population.

23 The conclusion of this part of our presentation is on the next

24 slide. No reasonable trier of fact could have concluded that there was a

25 common criminal plan of ethnic cleansing created in mid-January 1993. No

Page 512

1 reasonable trier of fact could have concluded that there were any changes

2 to the demographics of the aforementioned municipalities until the 30th

3 of June, the ABiH broadened the territory under its control. Due to all

4 these events, no reasonable trier of fact could have come to the

5 conclusion that, on that day, a decision was made to intensify and

6 further the common criminal plan of ethnic cleansing.

7 Let us now move on to Milivoj Petkovic himself while remaining

8 still with the 30th of June. We will discuss his role through the eight

9 topics presented here. The first one pertains to borders. BiH borders

10 appear to be a very simple matter in the view of General Petkovic and his

11 Defence. As early as April 1993, at a meeting General Petkovic told

12 General Halilovic that Croatia simply cannot wish to change any BiH

13 borders and annex part of its territory because, at that moment, there

14 was Republika Srpska Krajina existing in its very territory that also

15 wanted to secede from Croatia and join the territories controlled by the

16 Bosnian Serbs as well as the territory of Serbia proper. If Croatia

17 would favour annexing part of Bosnia and Herzegovina, it would make the

18 RSK request to secede legitimate. That is what General Petkovic said in

19 1993. He repeated the very same thing before this Tribunal. We see it

20 as something so simple, that any scenario about the change of borders is

21 unnecessary or uncalled for. As of the first moment of the breakup of

22 former Yugoslavia, the conclusion was made that the former republics may

23 acquire the status of states, but that no borders can be forcefully

24 changed in any way. Hence, the story of the borders actually means

25 shifting the focus away from the gist of the case. Let us see whether

Page 513

1 there could have existed any criminal intention on part of

2 General Petkovic. Let us look at some attempts to establish a joint

3 command for the ABiH and HVO. These documents can be found in Annex 2 of

4 Petkovic's final trial brief. Your Honours, we see three slides here,

5 this one and two more, specifying the documents, where we can see that in

6 July 1992 until June 1993, there were continuous discussions, attempts,

7 decisions to establish a joint command. The first such document is P339,

8 agreement between Izetbegovic and Tudjman dated the 21st of July, 1992.

9 In particular, we wanted to draw your attention to some documents from

10 January 1993 at the time when allegedly the criminal plan of ethnic

11 cleansing was designed. Let us look, therefore, at the last two

12 documents on this slide, one dated the 27th of January, 1993, which is a

13 joint statement by Izetbegovic and Boban, calling for the establishment

14 of joint commands at all levels without delay. And then we have the

15 order of Petkovic on the same day, which is P1322. The next slide also

16 shows some documents from January, such as Arif Pasalic's order as well

17 as an order by General Petkovic on the 28th of January. In February, you

18 see similar attempts. You can see them take place in April as well, and

19 we can see it on this slide in May as well. The last document pertaining

20 to 1993 stems from June. These documents show that in June 1993

21 something happened which made any further discussion on co-operation

22 between the ABiH and HVO impossible, at least not in the same way. The

23 last document is from 1994, after the Washington Accords. Finally after

24 that, a joint command of the ABiH and HVO was established.

25 The next topic is very important to us, Your Honours. We wanted

Page 514

1 to point out some documents showing that the HVO believed throughout that

2 the ABiH is an ally, at least the 30th of June 1993.

3 First we look at Herbert Okun's note, P1038. He was very tidy in

4 terms of keeping notes from meetings. This one comes from Geneva on the

5 2nd of January during peace negotiations. He noted that Halilovic and

6 Petkovic agreed to establish joint command of the BiH army and the HVO

7 and that Mladic said that the alliance of Croatia and Alija Izetbegovic

8 against the Serb people should cease to exist.

9 The majority concluded that this was the period when the JCE was

10 created. As a matter of fact, it is during this time that attempts were

11 made to create a joint command and establish co-operation. Let us look

12 at what kind of instruction Petkovic issued to his units, 4D397, from

13 June 1992. Petkovic warned that they are a common armed force, that

14 clashes should be avoided, and that the common enemy should be fought

15 instead of fighting each other.

16 On the next slide, we see a number of documents. However, given

17 the amount of time I have, I will only focus on the last document on the

18 bottom right. The document is dated the 11th of January, 1993; it is an

19 order by Milivoje Petkovic, 4D354. He referred to the ABiH as "our

20 allies."

21 The next slide, the 13th January, 1993, P1115. Petkovic ordered

22 that contact should be established immediately with the Muslim side and

23 problems solved through talks. On the 11th of January, 1993, Petkovic

24 addressed the units in the towns mentioned, P1190. He stated:

25 "We do not want the problems with the Muslims as -- to escalate

Page 515

1 again ..."

2 The 20th of January 1993, 4D433. Again, Petkovic ordered to

3 Konjic that contact should be established with the BiH army.

4 The 27th of January, 1993, 4D19. Again, Petkovic ordered that

5 all disputes be dealt with through negotiations.

6 The same goes for February 1993. In particular, I want to draw

7 your attention to the bottom right document, 4D75. Petkovic wrote to

8 Halilovic on the 9th of February, 1993, saying:

9 "I looked forward to each new soldier, Croatian or Muslim,

10 because I knew that they had a common goal."

11 Let us look at the next slide. I'd like to draw your attention

12 to the last document. Again, Petkovic's order to all operational zones,

13 P2599. As late as June 1993, Petkovic wrote:

14 "You should negotiate with the Muslim side to calm the situation

15 whenever it is possible."

16 Your Honours, in the next few slides, we'll show you a number of

17 documents as contained in Annex I of Petkovic's final trial brief. There

18 are quite many of them. These documents prove that the HVO and ABiH were

19 equal components of the armed forces of Bosnia-Herzegovina. Therefore,

20 to see the HVO as an illegal or unlawful paramilitary armed force is

21 completely incorrect and unfounded.

22 The 21st of July, 1992, Izetbegovic and Tudjman agreement - we've

23 already referred to it - it refers to the HVO as an integral component of

24 the armed forces of the Republic of BiH.

25 The next slide. We see a number of documents, including certain

Page 516

1 statements an orders by Alija Izetbegovic, where the HVO is seen as a

2 component of the armed forces of the Army of Bosnia-Herzegovina.

3 A few documents need taking note of. P2002 of the 20th of April,

4 1993. Halilovic and Petkovic signed an agreement establishing that the

5 ABiH and the HVO are equal.

6 On the 25th of April, 1993, we see something very similar in two

7 documents. One was a joint statement by Boban, Izetbegovic, and Tudjman.

8 It is P2078; the other, an annex to the statement referring to the

9 Halilovic-Petkovic agreement, P2091.

10 The next slide we see that HVO is still treated as a legitimate

11 armed force. Finally, in the Washington Agreement, which is 4D1234, we

12 see the HVO defined as part of the armed forces of Bosnia-Herzegovina.

13 Afterwards, follow excerpts from the laws of Bosnia-Herzegovina

14 showing that the HVO was an equitable component and that service in the

15 HVO counted towards pensionable years of service. Then we see part of

16 Petkovic's movement in 1991 that we took from the case file. From this,

17 we see that in January 1993, Petkovic spent about half a month in Geneva

18 at peace talks, and we see also that in that month he also held

19 negotiations with commanders of the Army of Bosnia-Herzegovina. If we

20 look at April and May 1993, you will see that Petkovic spent most of that

21 time at negotiations touring the field together with Halilovic and other

22 ABH senior officers, attempting to resolve conflicts by negotiations,

23 talks, and peace agreements.

24 In one interview that we see on the next slide, at that time in

25 February 1993, and that's 4D100, he stated that demilitarisation of the

Page 517

1 state is the only solution because as long as there are so many troops in

2 that area, conflicts are inevitable. We especially want to draw your

3 attention to one interview Petkovic gave in August 1994, 4D1355. At that

4 time, during the war he said:

5 "We never prepared for a war with Muslims. We never wanted to

6 start conflicts anywhere else."

7 Petkovic repeated that before this Court on transcript page

8 49414. He said then and now that his position was:

9 "It's better to negotiate for two years than wage war for one

10 single day."

11 We will now show you an excerpt from an interview in 1993

12 where --

13 [Video-clip played]

14 THE INTERPRETER: [Voiceover] "It is better to try to achieve

15 political agreement for one or two years than wage war for one single

16 day. I believe it's time for war to stop in this part of the world.

17 It's better to negotiate for a year or two even than wage war for five

18 months or even one day."

19 MS. ALABURIC: [Interpretation] Your Honours, that's all we wanted

20 to show you in this context. On slide 68, we wish to show you that the

21 Army of Bosnia-Herzegovina in June conquered Travnik and Kakanj and in

22 court Petkovic said in this connection:

23 "Only then did I definitively realise there is no longer any

24 certain hope of stopping these events through negotiations." Transcript

25 49458.

Page 518

1 Just a few words now about a document that is a key document in

2 this case, that's Petkovic's order from 1993, 30th of June, 1993, issued

3 to up with operative zone of the HVO, not the entire HVO - which is

4 exceptionally important if we talk about security reasons. That's P3019.

5 Let us look at his exact words. He ordered that Muslim soldiers of the

6 HVO be disarmed an isolated. He used the word "isolate," that's what I

7 wish to emphasise, and he also ordered the isolation of all able-bodied

8 men in Muslim-inhabited villages. It's very important to bear in mind

9 that he ordered that civilians should not be touched, that civilians must

10 remain in their homes. We have elaborated this in our brief and in our

11 submissions until now. He followed the orders of the Supreme Commander

12 of the HVO, Mate Boban. These orders were publicly known; they were

13 notified to representatives of the international community. There was no

14 secret about this. There was no concealment. There was no criminal

15 intent.

16 We will now show you a slide with a protected statement. This is

17 an excerpt from the opinion of two military experts we've heard before

18 the Court. One is a Defence expert, Milan Gorjanc, and another is a

19 Prosecution expert, Andrew Pringle. They talk about the same thing, the

20 statements of Muslim soldiers, the danger of losing territory in the

21 entire Mostar region, betrayals by Muslim soldiers, et cetera. And it

22 was very important to make the decision about disarming and isolating

23 Muslim soldiers.

24 To conclude about the disarmament and isolation of Muslim

25 soldiers, let us repeat. We think this decision was justified, for

Page 519

1 several reasons. First of all, a significant number of Muslims deserted

2 from the HVO and joined the Army of Bosnia-Herzegovina. Second, the ABH,

3 as result of their betrayal, broadened control in parts of the Mostar

4 region. And, third, the HVO was in a position of potentially losing

5 control over the whole Mostar region. Based on these premises, it is

6 indubitable that special security measures were called for. Petkovic's

7 order was legal. One, it was issued upon the order of the HVO Supreme

8 Commander. Two, the decision was made to disarm and isolate one's own

9 soldiers, and the time they spent in detention centres was recognised

10 later as time spent in a military unit and was recorded as special double

11 length of service for retirement purposes, as if they had been involved

12 in fighting. Document 4D1466. And the next reason is: There is no law

13 that prohibits an army to isolate -- from isolating or detaining its own

14 soldiers.

15 We wish to point out, Your Honours, that almost all Defence teams

16 put forward the argument that the international humanitarian law does not

17 apply to measures that an army applies to its own troops. The Trial

18 Chamber regrettably failed to respond to these positions and arguments

19 and found an alternative solution by treating these men as not belonging

20 to any army. We believe it's not only erroneous but also contrary to

21 common sense, to treat Muslim soldiers of the HVO as men who did not

22 belong to any army because at that time those were soldiers of the HVO.

23 Just a few words about another important element and that's the

24 isolation of able-bodied Muslim men of military age. This is an excerpt

25 from the commentary to Geneva Conventions and parts of the judgement in

Page 520

1 the Kordic case. In our view, it transpires quite clearly and

2 indubitably that military-age able-bodied men are not a priori civilians

3 and there is a perfectly good security reason to detain such men, in

4 order to establish first whether they are civilians or not. Let me

5 emphasise that if the status of civilian was part of the features of a

6 crime then the Prosecutor needs to establish that status for every person

7 the Prosecutor claims to be a civilian. So it's completely erroneous to

8 identify a whole group of people as civilians or not, especially --

9 unless it is a group of women, children, and the elderly. And it is

10 necessary to establish whether a military-age able-bodied man is a

11 civilian or not. He is not a civilian a priori.

12 We also wish to point out the finding in Kordic, where in view of

13 the fact that both of ABH and HVO operated on the principle of stints or

14 shifts, which meant that they were on the front line some time and then

15 spent some time at home; and they remained soldiers even while at home,

16 with their weapons. That's why we believe, Your Honours, that the

17 decision of General Petkovic to isolate military-age able-bodied men

18 should be detained is legal and justified. It's justified because at the

19 time the Army of Bosnia-Herzegovina, as we said, was conducting offensive

20 operations against the HVO and able-bodied military-age men were

21 physically capable and legally duty-bound to join the Army of Bosnia and

22 Herzegovina, and that constituted a security risk for the HVO. Isolating

23 military-age able-bodied Muslim men was legal because there is no law

24 that prohibits it because, as I've said, they cannot be presumed to be

25 civilians. That, of course, doesn't know -- doesn't mean that they

Page 521

1 should be kept detained, detained without establishing their specific

2 circumstances. It needs to be established whether they are, indeed,

3 civilians or not; and if they are civilians, it needs to be further

4 established whether they constitute a security risk or not. And if they

5 are civilians and if they are no security risk, they must be released.

6 These men, military-age able-bodied men, if they are detained, must have

7 the status of prisoner of war because they were military conscripts of

8 the BH army and, as such, they were reserve troops of the BH army. We

9 elaborated on that in our appeal brief and for shortage of time, I'm

10 skipping this section. Just one more thing.

11 In keeping with the finding in Kordic of the Appeals Chamber,

12 this decision ask not discriminatory in nature because it does not apply

13 to the entire Muslim population but only one of its segments, that is to

14 say, military-age able-bodied men who are not to be presumed to be

15 civilians and who could be a security threat. In that sense, we believe

16 we should make a distinction between initial detention and

17 decision-making on continued detention. Petkovic absolutely assumes his

18 part of responsibility for the initial detention of Muslim able-bodied

19 military-age men and his own decision of the 30th of June, 1993. His

20 position is that this detention was both legal and justified. He,

21 however, was not qualified to decide whether they were indeed civilians

22 and whether they should remain in detention or not. That is why I am

23 concluding this passage on detention here.

24 In July 1993, Petkovic requested to be relieved of duty of the

25 chief of the HVO Main Staff and the reason is very simple. What he had

Page 522

1 been doing up to then - and that is trying to solve problems through

2 negotiation - was no longer a way to solve problems with the BH army. He

3 returns to the position of the chief of HVO staff after the Washington

4 Agreements, that is to say, in early 1994. And in this context, we wish

5 to underline that nobody from the Muslim side or from the international

6 community had any objection to his return to that position.

7 And to conclude, we believe that the majority completely

8 unreasonably concluded that Petkovic acted with the intent of expelling

9 the Muslim population from Herceg-Bosna. We believe that this is

10 certainly not the only possible reasonable conclusion from the evidence,

11 and Petkovic's conviction under the JCE form of criminal responsibility

12 should be overturned.

13 And if I'm correct, I still have eight minutes left and I will --

14 I would like to use these eight minutes --

15 JUDGE AGIUS: You are indeed correct. You have eight minutes

16 left.

17 MS. ALABURIC: [Interpretation] In these eight minutes, we will

18 respond to the questions you put without repeating what other Defence

19 teams have said so far, although we subscribe to everything they've said,

20 including the written submission of the Bruno Stojic Defence. We will

21 add three things: Gornji Vakuf, occupation, and terror against

22 civilians.

23 JUDGE AGIUS: Correction: There is no written submission that I

24 know of, unless you are referring to the brief. What are you referring

25 to?

Page 523

1 MS. ALABURIC: [Interpretation] I refer to the skeleton they

2 provided.

3 JUDGE AGIUS: You may think it is a brief, but it's not a brief.

4 I made it clear that it's not part of the records.

5 MS. ALABURIC: Okay.

6 [Interpretation] But if anybody happens to read what's written

7 there, we agree, for the record.

8 You put the question, Your Honours, about the report by Siljeg.

9 The document is 13 -- just a moment, 1351, P1351. We wish to show you

10 the context, Your Honours, because we are certain that this context will

11 enable you to understand better the import of this report. And just a

12 short point before that. The first one is a letter from Arif Pasalic to

13 Halilovic from 19 January 1993, where he says that they met with some

14 people, including my client, General Petkovic, and agreed on a cease-fire

15 in Gornji Vakuf. On the same day, the same order on a cease-fire is

16 issued by Mate Boban, P1211. Mate Boban is the chief commander of the

17 HVO.

18 The next slide. On the next day, 20th January 1993, Petkovic and

19 Pasalic issued a joint order on a cease-fire. The document is P1238. We

20 draw your attention to point 3 and that is:

21 "Set up a commission consisting of three members from the HVO and

22 the BH army each to monitor the carrying out of this Order and solve the

23 disputed issues on the ground with the assistance of UNPROFOR and the

24 ECMM."

25 So it's the 20th of January, 1993, the time when the Trial

Page 524

1 Chamber claims the criminal plan of -- for ethnic cleansing was

2 conceived. On the 20th of January, fire ceased. On the 24th of January,

3 in Geneva when they found out that fighting did not cease based on this

4 order, Petkovic issued a new order for a cease-fire, P1286. After that,

5 Siljeg on the 25th of January issues an order to respect the cease-fire

6 absolutely, and that's P1300. That's when the fighting, indeed, ceased.

7 Then we have a joint statement from 27 January 1993 by

8 Izetbegovic -- by Petkovic and Siljeg. And on 28th of January, an order

9 by Petkovic and Arif Pasalic, another order.

10 This is a report by Siljeg, and my colleague pointed out that

11 this report covers what the fact-finding commission established in

12 villages where fighting had taken place. Based on that report, which my

13 client did receive, he issued instructions in P1344:

14 "Arrest and imprison all our extremists."

15 In the same order, he also made an order in point 7:

16 "... arrest looters on our side ..."

17 This is a document which attempted to establish the consequences

18 of warfare in these villages and a record of how many people in these

19 villages wished to leave and expressed this wish to the UNPROFOR. You

20 see exactly what we said at the beginning. Only a few people from a few

21 villages left Gornji Vakuf; the rest remained in the municipality of

22 Gornji Vakuf. We believe this document by Zeljko Siljeg demonstrates

23 that there were attempts to find out the facts, attempts were made to

24 solve things peacefully, and the commanders issued orders to arrest

25 anyone committing criminal acts.

Page 525

1 As for terror against civilians, I'll be very brief. It is our

2 position that this requires special intent, and the Trial Chamber must

3 establish special intent for every act and every defendant separately.

4 Special intent cannot be established for the entirety of the judgement,

5 nor can it be implied. Special intent may be established based on

6 indicia as stated in the appeals judgement, Galic, paragraph 104, but it

7 must be the only possible conclusion on the evidence. What misses in our

8 judgement is any explicit finding, let alone reasoning, about the

9 existence of special intent.

10 I believe I still have up with more minute and if I do --

11 JUDGE AGIUS: [Microphone not activated] -- we will reconvene in

12 half an hour.

13 Thank you very much.

14 --- Recess taken at 11.33 a.m.

15 --- On resuming at 12.02 p.m.

16 JUDGE AGIUS: Okay, thank you, and good afternoon.

17 Prosecution.

18 MR. SCHNEIDER: Good morning, Your Honours. Todd Schneider for

19 the Prosecution.

20 Your Honours, General Petkovic's conviction rests on a solid

21 foundation, contrary to what the Defence have argued.

22 As chief and deputy chief of the HVO Main Staff, Petkovic

23 deliberately and significantly contributed to the ethnic cleansing

24 campaign in so many different ways: Planning and directing attacks and

25 crimes to drive out Muslims, organising the expulsion of Muslims from

Page 526

1 Jablanica, ordering illegal forced labour, covering up his subordinates'

2 crimes. And this is just a partial list of what he did to further the

3 JCE.

4 Why would he have done all this if there was no common criminal

5 plan, as the Defence have argued today. As the Trial Chamber concluded,

6 Petkovic was "one of the most important members of the JCE." Trial

7 judgement, volume 4, paragraph 818. The Defence today have failed to

8 undermine the reasonableness of this conclusion. And I will begin the

9 Prosecution's response today by focussing on the Defence's challenges in

10 Grounds 3 and 4 of their brief regarding Petkovic's JCE contribution and

11 intent.

12 The Chamber's conclusion that Petkovic was a JCE member was based

13 on his wide-ranging and persistent pattern of criminal conduct throughout

14 the entirety of the ethnic cleansing campaign; a pattern you've heard

15 nothing about today from the Defence. Petkovic made so many

16 contributions to the JCE that I'm going to focus on three main

17 categories: Planning and directing attacks and crimes to drive out the

18 Muslim population, being personally involved in expelling Muslims and

19 other crimes, and covering up his subordinates' crimes or else turning a

20 blind eye to their crimes.

21 But before I discuss these contributions, let me first respond to

22 some of the arguments from their brief on his powers as chief and

23 deputy chief of the HVO Main Staff. Starting with Petkovic's authority

24 over his HVO armed forces. What the Defence have argued in their briefs

25 is that basically General Petkovic, the chief and deputy chief of the HVO

Page 527

1 Main Staff at the top of the HVO military chain of command, had no

2 control over his own troops. This is simply implausible given the

3 evidence in the record.

4 As the Trial Chamber reasonably found, Petkovic had command and

5 effective control over his troops. Volume 4, paragraph 679. This

6 finding was amply supported most notably by his many orders to his

7 troops. You see a list in front of you. This is a list of Petkovic

8 orders cited in volume 4, paragraphs 661 through 678, in support of the

9 Chamber's finding that he had command and effective control. More than

10 80 orders collected here. Covering deployment and combat readiness,

11 offensive operations, inspections, investigations and discipline. The

12 judgement is replete with examples of these orders being complied with.

13 Volume 4, paragraphs 661 through 800.

14 So in response to Defence argument that Petkovic's authority was

15 limited, I would refer you to this list. When they suggest Mate Boban,

16 the president and Supreme Commander, held all the real power over the

17 armed forces, again I refer you to this list.

18 Apart from this list, don't forget Petkovic's role in

19 negotiations at the international level and with the ABiH, his role in

20 implementing cease-fires, and his participation in strategic meetings

21 with Croatian President Franjo Tudjman, VRS General Ratko Mladic, and

22 others, all of which further supported the Chamber's findings on his

23 authority and effective control.

24 THE INTERPRETER: Kindly slow down for the interpretation.

25 JUDGE AGIUS: My attention is being drawn that you are going too

Page 528

1 fast. Could you slow down, please.

2 MR. SCHNEIDER: Apologies to the interpreters especially.

3 And just to conclude the citation, volume 4, paragraphs 18, 676

4 through 684.

5 The Defence have raised a few more specific challenges to his

6 authority. Let me address two of them now. First, they've argued that

7 he lost command and control when he became deputy commander in July 1993.

8 Again, this is the same list from before, with orders highlighted from

9 when he was deputy commander or deputy chief. And just to highlight a

10 few such orders, these include to shell the town of Mostar, to use

11 prisoners for dangerous forced labour, to investigate and discipline; all

12 showing Petkovic's command and control continued as deputy chief, as the

13 Chamber reasonably found, volume 1, paragraphs 748 and 755.

14 Now the Defence today have claimed that Petkovic had no authority

15 over HVO detention centres; the Chamber's findings show otherwise.

16 Of course, there are his illegal orders regarding dangerous

17 forced labour, which I'll return to later. There's also his other

18 orders, to release detainees, to regulate the treatment of prisoners.

19 Volume 4, paragraphs 670, 788 through 800.

20 To be clear, these so-called releases were often a pretext to

21 expel Muslims and the orders on prisoners were insufficient to address

22 the widespread detention crimes. They nevertheless demonstrate his power

23 over detention centres.

24 To sum up, there is no substance to Defence argument that

25 Petkovic lacked authority over his own troops.

Page 529

1 So let's turn to how he used that authority. My next subject.

2 Petkovic planned and directed attacks and crimes to drive out the Muslim

3 population, one of his many contributions showing the Chamber reasonably

4 found him to be a JCE member. The Chamber found that Petkovic engaged

5 his forces in five municipalities, where they committed violent crimes

6 against Muslims, in furtherance of the JCE; like in Gornji Vakuf, Prozor,

7 and Jablanica, where his troops shelled the towns, set fire to Muslim

8 homes, and forced Muslims out, all according to a preconceived plan; like

9 in Mostar where he planned and ordered illegal shelling and his units

10 violently evicted Muslims from their homes; like in Vares, where he sent

11 in troops under Ivica Rajic, who then massacred dozens of Muslim

12 civilians in Stupni Do and committed other crimes. Volume 4,

13 paragraphs 693 through 767.

14 Now, Defence today have challenged whether each of these five

15 municipalities I've just mentioned form part of the common criminal

16 purpose. We've responded in detail in our response brief to their

17 factual challenges that you heard today on this point, but the Defence

18 today have not mentioned -- they're ignored Petkovic's role in each -- in

19 the attacks and crimes in each of these municipalities. And how his role

20 undermines their arguments today that he favoured negotiations and peace.

21 But let me address two of their challenges that they've raised in their

22 appeal. First they have argued Petkovic took no part in the planning and

23 directing of the attacks themselves. They would have you believe that

24 the chief and deputy chief of the HVO Main Staff had no involvement in

25 military operations spanning five municipalities. The Chamber reasonably

Page 530

1 found otherwise.

2 In Gornji Vakuf, Prozor, and Jablanica, where in each

3 municipality he personally deployed units. He received reports as the

4 attacks unfolded. He ordered combat to cease. In Mostar, where he

5 planned the shelling and the Main Staff took over the command of

6 defending the town. In Vares, where he deployed the units. Volume 4,

7 paragraphs 691 through 764. Given all this, the Chamber reasonably found

8 Petkovic planned and directed these attacks.

9 Another Defence argument is the claim that he didn't intend the

10 crimes during and after these attacks. Now, the Defence haven't argued

11 that Petkovic was unaware of crimes during and after these attacks, and

12 in fact, as the Chamber reasonably found, Petkovic was repeatedly

13 informed of his subordinates' crimes, such as destruction of property in

14 Gornji Vakuf and Jablanica, violent evictions in Mostar. To list just

15 some of these examples. Volume 4, paragraphs 710, 718, and 732.

16 Given the clear evidence that Petkovic knew of his subordinates'

17 crimes during and after the attacks, the Defence instead have made the

18 following argument. They say there was no connection - no link - between

19 these attacks and the violent crimes against Muslims in each

20 municipality, as if they all spontaneously occurred at the same time.

21 The Chamber reasonably found otherwise, because the same thing happened

22 again and again when Petkovic sent in his troops, destruction of Muslim

23 homes, illegal detentions of Muslim civilians, and other crimes,

24 culminating in the expulsions of Muslims.

25 The connection is clear between the attacks and the crimes,

Page 531

1 demonstrating it was reasonable for the Chamber to find Petkovic intended

2 the crimes during and after these attacks, and that these attacks and

3 crimes formed part of the common criminal plan. Volume 4, paragraphs 44

4 through 66 and 815.

5 Now Petkovic's involvement in these attacks which started in

6 January 1993 also rebuts the Defence argument today that prior to

7 June 1993, Petkovic was merely interested in a joint command with the

8 ABiH. His involvement rebuts their argument that he was merely seeking

9 to have his HVO be allies with the ABiH.

10 So let me turn to my next subject. Petkovic was personally

11 involved in expelling Muslims and other crimes, another of the many

12 contributions that show the Chamber reasonably found him to be a JCE

13 member. Examples of his personal involvement include: Organising the

14 forced removal of Muslims from Jablanica, ordering illegal arrests and

15 detentions, planning the illegal shelling of East Mostar, and ordering

16 and authorising the use of Muslim persons for illegal forced labour.

17 See, for example, volume 4, paragraphs 723, 737, 750, and 793.

18 None of which the Defence have raised or challenged today. But

19 they have -- well, except for the first one, apologies. They have

20 briefly noted the forced removal in Jablanica. Petkovic was personally

21 involved in the expulsion of 450 Muslim women and children and elderly

22 from Sovici and Doljani. The Defence concede Petkovic was involved in

23 moving these civilians, but they have argued he did so on humanitarian

24 grounds, because they wanted to leave.

25 The Chamber reasonably rejected this explanation. After all, the

Page 532

1 victims had no choice in the matter. In large part, thanks to Petkovic

2 himself. Because by the time they were moved, Petkovic's troops had

3 already set fire to their villages, had already illegally detained them.

4 Petkovic then went to Sovici and Doljani on 4 May, together with Pusic

5 and others. He saw the burned-out houses. He saw deplorable conditions

6 of confinement at Sovici school. So when Petkovic, through his orders,

7 arranged for these civilians to be deported on buses from the school and

8 other places where they were being detained, he was under no illusion

9 that they were leaving of their own free will.

10 Recall the end result, as one witness put it: Not a single

11 Muslim was left in the Sovici and Doljani valley. Volume 2,

12 paragraph 614; volume 4, paragraphs 717 through 724, and 1100 through

13 1104.

14 Jablanica is compelling evidence showing the Trial Chamber

15 reasonably found Petkovic intended to expel the Muslim population.

16 So now let me turn to another example of his Petkovic's

17 involvement that Defence have challenged at length today.

18 JUDGE MERON: May I ask a question, please.

19 JUDGE AGIUS: Yes, go ahead.

20 JUDGE MERON: Thank you, counsel, for your argument. I am

21 hearing what you say about acts of deportation and so on, but I would be

22 grateful if you would refer in your argument now to the point made or

23 which appeared to be made by the counsel for Mr. Petkovic earlier on,

24 arguing in the context of joint criminal enterprise of ethnic cleansing,

25 that basically the demographic composition of various contested

Page 533

1 localities has not changed. And from that she drew the conclusion, or

2 appeared to draw the conclusion, that there was no ethnic cleansing.

3 Could you help us in the Bench in how you understand this?

4 MR. SCHNEIDER: Certainly, Your Honours, if you give me just one

5 moment.

6 JUDGE AGIUS: Thank you, Judge Meron. I was planning to put that

7 question myself later on, actually, because it is very pertinent. Thank

8 you.

9 MR. SCHNEIDER: In terms of the argument by the Defence this

10 morning that you have referenced about the demographic composition not

11 having changed, and that there was no ethnic cleansing, Your Honours,

12 first, the ethnic map in a municipality doesn't need to change for a Trial

13 Chamber to conclude that crimes within that municipality form part of the

14 common criminal purpose. As the Djordjevic Appeals Chamber found at

15 paragraph 154, the existence of a common criminal purpose doesn't depend

16 upon proof that the purpose was achieved. So in this case the Chamber

17 didn't need to ask it of it how many Muslims forcibly displaced in a

18 municipality to conclude that crimes within the municipality were within

19 the common criminal purpose. Instead, it was appropriate for the Chamber

20 to rely on the similarity between HVO crimes across different

21 municipalities to conclude crimes within all these municipalities were

22 part of the common criminal purpose. And furthermore, in the end, the

23 ethnic map of Herceg-Bosna did change, as tens of thousands of Muslims

24 were forcibly displaced from Herceg-Bosna by HVO forces. And we've

25 collected those findings in the Prosecution response brief to Petkovic at

Page 534

1 paragraph 43.

2 So let me now turn to my next -- sorry. Apologies, Your Honour.

3 Another example that the Defence have challenged today of his

4 personal involvement is 30 June 1993 order that resulted in the illegal

5 arrests and detentions of thousands of Muslim men, who were then terribly

6 mistreated in HVO detention centres. I'm going to respond to most of the

7 Defence arguments they've raised, and my colleague will then focus

8 specifically on legal questions regarding the Muslim members of the HVO.

9 The Defence claim this order was proper. They focussed a great

10 deal today on the ABiH attack on 30 June 1993 and how this order was

11 issued that same day. They focus on how he instructed that Muslim women

12 and children be left in their homes. They don't talk about what happened

13 before or after this order. They avoid how by the time of this order

14 Petkovic had already planned and directed operations in two other

15 municipalities: Gornji Vakuf and Jablanica, where his troops illegally

16 arrested Muslims. They don't discuss how the thousands of Muslim men

17 rounded up on this order were abused and mistreated once they entered the

18 HVO detention centres. They avoid how Muslim women and children were

19 rounded up and expelled during HVO operations taking place in the same

20 municipalities at the same time. They don't talk about this bigger

21 picture because if this really was a proper order from Petkovic, if this

22 was just a temporary, makeshift response to the ABiH attack, we would

23 expect to see the thousands of Muslim men rounded up being properly

24 treated in HVO detention centres. Of course, that didn't happen. The

25 two groups targeted by this order, the Muslim able-bodied men, the Muslim

Page 535

1 HVO members were arrested and detained along with all the other Muslim

2 prisoners. They were beaten, kept in terrible conditions, and forced to

3 work on the front lines. Finally, they were expelled from Herceg-Bosna.

4 And see the judgement findings collected in our response brief at

5 paragraph 152. Demonstrating Petkovic's order - targeted both of these

6 groups because they were Muslims - as part of the ethnic cleansing

7 campaign.

8 So let me turn to Defence's arguments.

9 First, the Muslim able-bodied men sometimes referred to as

10 military-aged men. The Defence claim that the Muslim able-bodied men

11 were members of the ABiH and they posed a legitimate security threat, so

12 their arrests and detentions were proper. The Muslim able-bodied men

13 were not members of an armed force. They were civilians. The general

14 call to mobilisation in Bosnia, which the Defence rely on, was

15 insufficient on its own to make the Muslim able-bodied men members of the

16 ABiH. At most, this call to mobilise made them part of the reserves,

17 conscripts as the Defence has said today.

18 But, to be part of the ABiH, to lose their civilian status, a

19 further step was required. The Muslim able-bodied men also had to be

20 incorporated into the armed forces. Volume 3, paragraphs 618 through

21 620.

22 What the Defence have relied on is simply not enough to make them

23 members of an armed force.

24 Given the Muslim able-bodied men were civilians, their detentions

25 had to comply with international humanitarian law as to civilians. Which

Page 536

1 means, that for the security risk posed by the Muslim able-bodied men,

2 Petkovic simply could not lump them together. Each Muslim male arrested

3 had to be given the chance to challenge his detention on an individual

4 basis. As the Appeals Chamber has held, there must be an assessment that

5 each civilian in detention poses a particularly security risk. That's

6 the Stanisic and Zupljanin appeals judgement, footnote 2953.

7 The Muslim men were not assessed. They were abused, confirming

8 that their arrests and detentions form part of the common criminal plan.

9 Let me turn to some other Defence challenges that have been made

10 to this order, that even if it wasn't implemented legally, at least

11 Petkovic thought it would be. No, he didn't. I've already discussed how

12 Petkovic planned operations where his troops illegally arrested Muslims.

13 By the time of his mass arrest order, he had also been repeatedly

14 informed that HVO forces were illegally detaining and abusing Muslim

15 prisoners. Petkovic had also seen this first-hand just one month before

16 the order at Sovici school. See the findings collected in our response

17 brief at paragraph 81.

18 He knew the same crimes would take place again once he issued

19 this order.

20 The Defence have made another argument today about Petkovic's

21 awareness, that he issued this order on Boban's instructions. This is an

22 irrelevant consideration. There is no following superior orders defence

23 at this Tribunal as we've laid out in our response brief in paragraphs 92

24 through 95.

25 Finally, the Defence try to absolve Petkovic of the widespread

Page 537

1 detention crimes resulting after his order by claiming that he had no

2 responsibility for the thousands of Muslim men once they entered HVO

3 detention centres. I've dealt with this earlier when I explained

4 Petkovic did have authority over HVO detention centres. So he could have

5 addressed the abuses against these prisoners. Instead, he chose not to.

6 So let me turn to another example of Petkovic's personal

7 involvement, his planning and ordering the illegal shelling of

8 East Mostar. The Defence again talked about Mostar today but did not

9 discuss Petkovic's role.

10 Now, in their brief, the Defence have not challenged that "crimes

11 were committed by shelling" at their reply brief paragraph 61, but they

12 have argued Petkovic did not plan or order any of them. This is again

13 the he-lacked-authority argument. The Chamber reasonably rejected this

14 claim. Petkovic was in charge of HVO forces, including the artillery,

15 throughout the illegal shelling of East Mostar. As I discussed before,

16 Petkovic had command over all HVO forces. As I mentioned earlier, he had

17 command over the HVO forces in Mostar. Indeed, the Main Staff took over

18 the command of defending the town.

19 Petkovic specifically had authority over HVO artillery. For

20 example, the Siroki Brijeg artillery regiment was under the Main Staff's

21 direct command from August to December 1993. This regiment directed fire

22 at targets in Mostar, including the Old Bridge in September 1993. Volume

23 2, paragraph 1350.

24 Petkovic also exercised his authority over HVO artillery. For

25 example, he issued orders regarding HVO artillery in March and

Page 538

1 November 1993. Volume 4, paragraphs 745 and 746.

2 The Defence have challenged in their briefs his November order,

3 so let's just remind ourselves of the facts. On 8 November 1993,

4 Petkovic ordered the HVO to shell the town of Mostar selectively at

5 various intervals. His forces complied. An HVO tank deliberately

6 targeted the Old Town, including by firing on the Old Bridge until it was

7 destroyed on the 8th. The tank then continued to fire on the bridge on

8 the 9th until it collapsed. Volume 4, paragraph 746 and 756; volume 2,

9 1306 through 1366.

10 The Defence have said Petkovic never issued this order. The

11 order on its face proves otherwise. This is the order itself,

12 Exhibit P6534, cited at volume 4, paragraph 746. Look at the signature

13 block: Milivoj Petkovic. There's no question. The Defence try to

14 escape his own name on the page by saying, Look, there's no signature.

15 But that's only because this version of the order was sent by packet

16 communication through electronic channels. Documents sent this way never

17 had a signature. Volume 1, footnote 1712. The Defence also claimed that

18 Petkovic wasn't at Citluk from where the order was issued. But as the

19 Chamber reasonably found, Petkovic issued this order remotely. At least

20 one other order from Petkovic was issued remotely as well. See the

21 findings at volume 2, paragraphs 607 and 1301. This order came from

22 Petkovic.

23 So let me turn to one more example of Petkovic's personal

24 involvement that the Defence have ignored today. His illegal forced

25 labour orders and authorisations. At least three such orders in July and

Page 539

1 August 1993. At least five such authorisations in October. The Defence

2 say that what he did wasn't clearly illegal and that his orders weren't

3 actually orders. Let me address each of these arguments.

4 First they claim the dangerous forced labour in this case wasn't

5 clearly illegal, that there was some ambiguity in the law, and that

6 Petkovic acted in good faith when he ordered and authorised such labour.

7 No. What he did was clearly illegal. Because he forced

8 prisoners to work on the front lines, which is inherently dangerous and

9 prohibited under international law. See volume 1, paragraphs 155 through

10 164, citing the relevant Articles of the Geneva Conventions.

11 Petkovic knew this at the time.

12 This is Exhibit P2950, cited in our response brief at

13 paragraph 249. It's a June 1993 ICRC letter to Petkovic and others about

14 the HVO sending prisoners to work in dangerous locations.

15 "Such a practice is a serious break," they meant breach, "of the

16 Geneva Conventions. It is" -- apologies, Your Honours, just waiting for

17 the technical difficulty to be resolved. So let me start again.

18 As the letter said: "Such a practice is a serious break of the

19 Geneva Conventions. It is unacceptable and has to be stopped at once."

20 Petkovic got this letter just three weeks before his

21 15 July order for prisoners to work on the front lines.

22 So there is no ambiguity here about the illegality of this

23 practice or Petkovic's awareness.

24 So let me turn to another Defence argument. They say Petkovic's

25 orders were not actually orders to have prisoners work on the front

Page 540

1 lines. Simply not true. Let's look at one of them.

2 This is Petkovic's 8 August 1993 order discussed at volume 4,

3 paragraph 800. Item 1 says: "Fortify the achieved lines immediately.

4 Prisoners and detained Muslims may be used for fortifying lines."

5 Recall that Coric executed this order. 100 Muslim detainees were

6 sent out for labour on the front lines in line with Petkovic's order.

7 Volume 4, paragraphs 800 through 801.

8 Petkovic's July orders were similarly clear. In each one, he

9 demanded that prisoners be used to fortify the defence lines. Volume 4,

10 paragraph 790.

11 Given such evidence, it was more than reasonable for the Trial

12 Chamber to find Petkovic illegally ordered and authorised prisoners to

13 work on the front lines. Volume 4, paragraphs 790 through 802.

14 By doing so, he directly contributed to the "widespread, nearly

15 systematic use" of detainees on the front lines for forced labour or as

16 human shields, resulting in their murder or abuse. Volume 4,

17 paragraph 66. In fact, the Chamber found that at least 33 prisoners were

18 murdered during forced labour. Volume 3, paragraphs 676 and 683.

19 There can be little surprise the illegal forced labour was so

20 ubiquitous given it came straight from the top, from Petkovic himself.

21 So let me turn to a new subject. Petkovic covered up his

22 subordinates' crimes or else turned a blind eye to their crimes. Another

23 of his many contributions that show the Chamber reasonably found Petkovic

24 to be a JCE member. Petkovic ensured impunity for his subordinates'

25 crimes in several different ways.

Page 541

1 Like the Stupni Do massacre in October 1993, where Petkovic

2 ordered a sham investigation and helped Ivica Rajic stay in the HVO under

3 a fake name.

4 Like in Jablanica, where he ordered his troops to block passage

5 of international observers and convoys so they could not visit the

6 destroyed villages.

7 Like with Tuta's Convicts Battalion and the Bruno Busic Regiment,

8 whom he continued to use despite knowing of their crimes against Muslims.

9 Volume 4, paragraphs 721, 777, and 804.

10 Again, the Defence have ignored each of these today.

11 First the Stupni Do cover-up. The Defence talked about the

12 municipality of Stupni Do and the crimes there but not his role in

13 covering them up. Recall the relevant facts. Petkovic's subordinates,

14 led by Ivica Rajic, murdered 28 Muslim residents and destroyed all the

15 houses in the village, following which Petkovic ordered an investigation

16 into the massacre, to placate the international community. But the very

17 same day, he sent a message to Rajic and called him to explain the

18 investigation was just a formality, just a sham. Volume 3,

19 paragraphs 480 through 484.

20 Now, the Defence have argued Petkovic did not order a fake

21 investigation. They've tried to poke holes in Witness EA's testimony

22 about this. The Trial Chamber reasonably credited Witness EA because his

23 testimony on this was so strongly corroborated by the other evidence.

24 I've collected some of this evidence on a timeline which shows

25 what happened between the massacre on 23 October 1993 and December 1993.

Page 542

1 First, Petkovic authored a message to Rajic about the sham investigation.

2 Here you can see the handwritten note itself. The order for an

3 investigation is merely as a formality.

4 Returning to the timeline. Next, we see the Travnik deputy

5 military prosecutor tried to investigate, but the local HVO brigades

6 essentially provided no co-operation. Third, Rajic sent two reports to

7 Petkovic, neither of which set out what actually happened during the

8 massacre. And finally, Rajic assumed a fake name and continued to serve

9 in the HVO despite Petkovic and others knowing of his involvement in the

10 killings and other crimes. This evidence is cited at volume 3,

11 paragraphs 480 through 495. Petkovic even admitted to knowing about

12 Rajic's fake name. Given all this evidence, the Chamber reasonably

13 relied on Witness EA's testimony when it found Petkovic ordered a fake

14 investigation.

15 So let me turn to another example of Petkovic covering up crimes

16 in Jablanica. Recall that Petkovic planned and directed the attack and

17 crimes there. He subsequently ordered his troops to block passage of

18 international observers and convoys to conceal the crimes the HVO had

19 committed in Sovici and Doljani. Volume 4, paragraph 721.

20 The Defence do not deny that HVO blocked access for

21 internationals. They have acknowledged there was a Main Staff order on

22 24 April to block an international convoy passing through Jablanica.

23 Instead, they've tried to pass the buck, to shift the blame, by claiming

24 the Main Staff order did not come from Petkovic himself because he was

25 out of the country.

Page 543

1 The Chamber reasonably found this order did come from Petkovic

2 based on his having planned and directed the attack in Jablanica, based

3 on his knowledge of the crimes during and after this attack, based on

4 Petkovic serving as the chief of the Main Staff at the time of the order.

5 Volume 4, paragraph 721.

6 I would just add the Chamber's findings elsewhere that Petkovic

7 could issue orders from out of the country, like from Geneva in

8 January 1993. Volume 2, paragraph 393. Given all this, the Chamber

9 reasonably found that Petkovic ordered the cover-up in Jablanica.

10 Let's turn to another example of the cover-ups or to his

11 specifically turning a blind eye to subordinates' crimes. The Defence

12 have said he didn't do this. They've gone through in great detail in

13 their briefs a long list of orders that they claim were designed to

14 prevent crimes, to ensure compliance with the laws of wars, to protect

15 civilians. The truth is Petkovic protected his own with the cover-ups.

16 As for the orders the Defence has cited, there were no teeth to them.

17 They were just words on paper as his subsequent actions showed.

18 Specifically his repeated deployment and use of HVO units that he knew

19 had committed crimes against Muslims. Like the Bruno Busic Regiment,

20 like the Convicts Battalion of Mladen Naletilic, also known as Tuta. And

21 this is just a partial list of such units.

22 Let me address here the Defence's arguments on these two units

23 whom Petkovic used in locations such as Gornji Vakuf, Jablanica, and

24 Mostar. Starting with the Bruno Busic Regiment. The Defence acknowledge

25 that he could deploy and use this unit. Appeal brief, paragraphs 231,

Page 544

1 239, obviously the Defence appeal brief. Their argument today is that

2 Petkovic didn't know about the regiment's crimes. This ignores the

3 evidence reasonably relied on by the Chamber. He personally deployed

4 them in two attacks, Gornji Vakuf and Jablanica. He knew of the

5 widespread crimes his forces committed against Muslims during and after

6 these attacks. He specifically ordered the Bruno Busic Regiment to use

7 Heliodrom detainees for illegal forced labour. Volume 4, paragraphs 809

8 through 811.

9 Let me just briefly detour to Your Honours' question 4(c)(i) and

10 the Defence argument on that point today. The Defence -- which relates

11 to the Siljeg 28/29 January report, Exhibit P1351.

12 The Defence have argued today that in response that Petkovic

13 issued an order, P1344, to deal with the crimes in Jablanica -- sorry, in

14 Gornji Vakuf. Trial Chamber reasonably rejected this interpretation of

15 Petkovic's order, Exhibit P1344. They found that his continued use of

16 this specific regiment, the Bruno Busic Regiment, shows that this order

17 the Defence have cited today was not genuinely intended to punish and end

18 the crimes against Muslims. And that's volume 4, paragraph 709.

19 So let me turn next to -- sorry. Just to close out on the Bruno

20 Busic Regiment. Based on the evidence I've just discussed -- the finding

21 I just discussed, the Chamber found Petkovic was well aware of the

22 regiment's criminality.

23 JUDGE AGIUS: Mr. Schneider, I see you looking at the clock

24 repeatedly. You have ten minutes left.

25 MR. SCHNEIDER: Okay. Thank you, Your Honours.

Page 545

1 Next Tuta's Convicts Battalion and its ATGs, anti-terrorist

2 groups. Here the Defence's arguments were reversed. They acknowledge

3 that he knew of this unit's crimes. Appeal brief paragraph 257. But

4 their argument has been he had no authority over them. He did not deploy

5 and use them. Again, this ignores the evidence underlying the Chamber's

6 findings. First, that Tuta's Convicts Battalion and its ATGs were

7 explicitly within the HVO chain of command. Second, Petkovic and the

8 Main Staff regularly deployed them. Volume 1, paragraphs 815 through

9 829.

10 I want to focus here on one example. Petkovic's order,

11 Exhibit P3128, from 2 July 1993, cited at volume 1, paragraph 828, where

12 Petkovic ordered that "the Mostar ATG (from the Tuta ATG)" be used as

13 part of the defence of the town of Mostar. Let me repeat: "The Mostar

14 ATG (from the Tuta ATG)," and it's from page 2 of that exhibit.

15 The Defence have challenged this order. They've noted Stojic

16 co-signed this order as if this somehow undermined Petkovic's authority

17 over the ATGs. They ignore other orders from Petkovic and the Main Staff

18 regarding the Convicts Battalion and its ATGs that contain no

19 co-signature from Stojic. And these are noted in our response brief at

20 paragraph 125.

21 In any event, the Defence argument misses the bigger picture.

22 The bigger picture here is Petkovic's willingness to continue using

23 Tuta's troops in Mostar despite his knowledge of their crimes. This

24 order, Exhibit P3128, is from 2 July 1993. Just three weeks after

25 Petkovic was informed that members of an ATG raped, abused, and evicted

Page 546

1 Muslims in Mostar. Just three months after Petkovic was informed that

2 Tuta and his Convicts Battalion burned down Muslim homes in Jablanica and

3 committed other crimes. Volume 4, paragraph 718 through 719, and 732.

4 The bigger picture here is also what happened after this order.

5 Members of Tuta's Convicts Battalion and its ATGs continued to commit

6 crimes against Muslims in Mostar during the rest of 1993 and into 1994,

7 violent expulsions, deaths, rapes, and sexual assaults, beatings of

8 detainees and murders of detainees by forcing them to serve as human

9 shields. Volume 2, paragraphs 977 through 987, 1609 through 1633.

10 A telling example of how Petkovic turning a blind eye to his

11 subordinates' crimes encouraged the commission of more crimes against

12 Muslims, as the Chamber reasonably found. Volume 4, paragraph 816.

13 And this is a good place to wrap up my discussion about

14 Petkovic's contributions and intent because Petkovic's cover-ups, his

15 turning a blind eye to his troops' crimes also make the broader point.

16 There is no reason to punish your subordinates when they do exactly what

17 you intend them to do. There's every reason to cover up their crimes

18 when you're a member of the JCE.

19 The Chamber's findings on Petkovic's JCE contributions and intent

20 were eminently reasonable. The Defence's factual challenges in Grounds 3

21 and 4 should be dismissed.

22 And, Your Honour, I believe that would bring us to the break.

23 JUDGE AGIUS: Yes, Judge Meron.

24 JUDGE MERON: I would be grateful if you would enlighten me on an

25 aspect relevant to your argument and relevant to the argument made by the

Page 547

1 counsel of the Defence.

2 We do know that under Article 49 of the Fourth Geneva Convention

3 either individual or group deportations are unlawful, and there is

4 jurisprudence of the Tribunal to suggest that deportations can also be

5 caused by other criminal behaviour.

6 My question to you is: At what point of time do deportations

7 transform into ethnic cleansing? How much of a population of an ethnic

8 group you would have to expel in various ways, deport, in order to define

9 the situation as ethnic cleansing?

10 MR. SCHNEIDER: Your Honour, to give a proper answer, I would

11 request a chance to address it once we return from the break.

12 JUDGE MERON: [Microphone not activated] Mr. President --

13 JUDGE AGIUS: It's no problem. No problem. Okay.

14 No problem, Mr. Schneider, you'll deal with that after the break.

15 Thank you, we'll reconvene at 2.30.

16 --- Luncheon recess taken at 1.00 p.m.

17 --- On resuming at 2.30 p.m.

18 JUDGE AGIUS: Yes, please proceed, you have another hour.

19 MR. SCHNEIDER: Thank you, Your Honour. Good afternoon.

20 I'd like to start about by coming back to Your Honour

21 Judge Meron's question related to ethnic cleansing. The question asked

22 at what point of time do deportations transform into ethnic cleansing?

23 How much of a population of an ethnic group would you have to expel in

24 order to define the situation as ethnic cleansing?

25 As a preliminary matter, ethnic cleansing is not a crime provided

Page 548

1 for under the Statute or charged in this case. Judge Shahabuddeen in his

2 partly dissenting opinion to the Stakic appeal judgement made this

3 explicit: "Ethnic cleansing refers to a policy, this is not a crime in

4 its own right under customary international law."

5 And that's at paragraph 50.

6 As the Appeals Chamber found in Stakic at paragraph 49: "Ethnic

7 cleansing can involve the forcible displacement of civilians either

8 across a border or across a front line."

9 The crimes at the heart of an ethnic cleansing policy are

10 therefore deportation and forcible transfer charged in this case under

11 Counts 6 through 9.

12 The term "ethnic cleansing" is in the indictment at paragraph 15

13 and the term is used by the Chamber at volume 4, paragraph 41, as part of

14 the factual description of the common purpose. This factual

15 characterisation is amply supported by the findings in this case that

16 show the forced displacement of Muslims occurred on a massive scale.

17 These same findings which I'm about to go through rebut the Defence's

18 arguments today on demographics.

19 So what were these findings? Many hundreds of Muslims were

20 deported from West Mostar to East Mostar through waves of violent

21 eviction operations between mid-May 1993 and February 1994. Volume 3,

22 paragraph 782 through 783, and 853 through 856.

23 As a result of HVO eviction operations in West Mostar, Stolac and

24 Capljina, the population of East Mostar swelled from 20.000 in May 1993

25 to 55.000 in August 1993. Volume 2, paragraphs 1199 through 1200;

Page 549

1 volume 3, paragraph 853. In other words, 35.000 Muslims were expelled

2 into East Mostar over the course of just four months. Several hundred

3 Heliodrom prisoners were deported between July and November 1993, and

4 several hundred more deported between the 15th and the 17th of December,

5 1993. And you can find that at volume 3, paragraphs 789 through 792.

6 Hundreds were expelled from --

7 THE INTERPRETER: Kindly slow down. Thank you.

8 MR. SCHNEIDER: Apologies again to the interpreters.

9 Hundreds were expelled from Ljubuski to third countries in

10 August 1993 through the system of deportation, conditioning release of

11 the men on their agreement to leave BiH with their families. Volume 3,

12 paragraph 793 through 795. The HVO deported hundreds of Gabela prisoners

13 out of BiH in December 1993. Volume 3, paragraphs 807 through 809.

14 At least 2500 women, children, and elderly were expelled from

15 Prozor to ABiH territory on a single day, 28 August 1993. HVO soldiers

16 rounded up the Muslim inhabitants of two villages, transported them

17 toward the front line, and forced them to walk to ABiH-held territory

18 while opening fire on the victims and wounding several people. Volume 3,

19 paragraphs 840 through 842.

20 Finally, between 6 or 7 July and 2 August 1993, the HVO arrested

21 and detained women, children, and elderly Muslims from Stolac and

22 expelled nearly 1250 of them to ABiH territory. The HVO then carried out

23 another wave of arrests of women, children, and elderly from Stolac and

24 after detaining them for several months, expelled them to ABiH territory

25 in October, November 1993. Volume 3, paragraphs 881 through 883.

Page 550

1 So that would conclude our answer to that question as well as

2 address the demographic arguments made earlier.

3 So with that, I would just turn briefly to the other arguments

4 made by the Defence this morning regarding the indictment. The Defence

5 had notice of the JCE which the Chamber found had been established

6 because it was well within the case pled in the indictment. I've already

7 mentioned this but let me just read it out. The indictment expressly

8 alleged "a joint criminal enterprise to politically and militarily

9 subjugate, permanently remove, and ethnically cleanse Bosnian Muslims"

10 and others. Again that was paragraph 15. So ethnic cleansing is

11 directly contained in the indictment contrary to the Defence's argument

12 today. The indictment further alleged that the appellants were

13 responsible for all charged crimes pursuant to this JCE or,

14 alternatively, pursuant to JCE 3. And that's at paragraphs 221 and 227

15 of the indictment.

16 So there's no lack of notice to the Defence on these points.

17 And with that, Your Honours, I would conclude my portion of the

18 submissions and hand it to over to my colleague, Ms. Baig.

19 MS. BAIG: Good afternoon, Your Honours.

20 JUDGE AGIUS: Good afternoon.

21 MS. BAIG: I'd like to address Petkovic's argument concerning the

22 fraction of the victims of the JCE crimes that are the detained Muslim

23 victims who served in the HVO. The Trial Chamber made no error of fact

24 or law in determining that the detained Muslims who had previously served

25 in the HVO could be victims of grave breaches of the Geneva Conventions

Page 551

1 charged under Article 2 of the ICTY Statute.

2 The key to the protections afforded by the Geneva Conventions to

3 prisoners of war and civilians is the determination of whether the

4 victims are in enemy hands. And this, of course, Your Honours, is

5 determined by allegiance which in this case boils down to ethnicity.

6 The Trial Chamber reasonably concluded that notwithstanding any

7 prior or formal relationship with the HVO, these detained Muslims were at

8 the time of the crimes in enemy hands. And here, Your Honours, I would

9 like to point out this issue only concerns crimes that happened once the

10 detainees were actually in custody. They had been disarmed and they were

11 put into custody by the HVO. So this is the inhumane acts charged in

12 Counts 13 and 16, concerning conditions of detention and mistreatment

13 during detention, and Count 2, concerning killings in detention.

14 So Petkovic's arguments this morning concerning the reasons for

15 the arrest have no effect on these crimes.

16 And once these victims were in enemy hands, then they were

17 protected. And that's because the Geneva Conventions create a closed

18 system. So by one Convention or another, once you're in enemy hands,

19 you're a protected person. There are no gaps and there are no loopholes.

20 So let me begin by explaining why the Trial Chamber was factually correct

21 to conclude that the Muslim HVO detainees were in enemy hands and

22 therefore protected persons. And I'll then explain why the Chamber's

23 approach was correct on the law.

24 As background, it's important to appreciate why there were

25 Muslims in the HVO in the first place. You've heard a bit about this

Page 552

1 this morning. When the HVO was established in April 1992, its stated

2 goals were to protect the territory, the Croatian people, as well as

3 others in the community from aggression. Its ranks were not limited to

4 Croats. Many Muslims joined or were otherwise mobilised into its armed

5 forces. And in July 1992, Presidents Tudjman and Izetbegovic signed an

6 agreement on friendship and co-operation which stated that the armed

7 component of the HVO was an integral part of the united armed forces of

8 the Republic of Bosnia-Herzegovina.

9 But by the beginning of 1993, Your Honours, when the JCE came

10 into being and the crimes of this case began, this relationship of

11 supposed friendship, based largely on the threat of the common Serb

12 enemy, had deteriorated. And we see this very clearly when, after a

13 series of clashes between the HVO and the ABiH, Prlic issues the

14 January 1993 ultimatum, demanding the ABiH units to submit themselves to

15 the command of the HVO Main Staff in the Croatian-claimed territories.

16 And as the JCE came into being, the ethnic cleansing of the Muslims from

17 the Croat-claimed territories began in earnest.

18 As this ethnic separation objective became more clear, it is not

19 surprising, Your Honours, that many of the Muslims, the Muslim members

20 serving in the HVO, started to leave, and the Chamber found that they

21 left in large numbers in May and June 1993. That's at volume 1 of the

22 judgement, paragraph 776.

23 As you heard this morning, on 30th of June, 1993, HVO soldiers of

24 Muslim ethnicity who had deserted the HVO to then join the ABiH

25 participated in an ABiH attack on the HVO's Northern Barracks in Mostar.

Page 553

1 And you can find the Chamber's finding at volume 2, paragraphs 878 to

2 886.

3 Petkovic then ordered the mass arrest of all the Muslim men. He

4 specified that all Muslims serving in the HVO shall be disarmed and

5 placed in isolation, and he also ordered the arrest of all other

6 able-bodied Muslim men in that area. And I should specify that's in the

7 south-east OZ.

8 This triggered a widespread and extensive campaign of arresting

9 Muslim men with no distinction. ABiH Muslim soldiers, Muslims who had

10 served or were serving in the HVO, and civilians, civilians as young as

11 14 up to the age of 84. And that's at volume 2, paragraphs 891 and 895.

12 The arrests themselves, Your Honours, were organised and

13 systematic and found to follow a recurring pattern. Many Muslim men were

14 arrested from residential buildings, often at night, and then they were

15 taken to temporary detention locations, such as the mechanical

16 engineering faculty, before being transferred to larger detention

17 centres, such as the Dretelj prison or the Heliodrom. And I refer you to

18 volume 2, paragraph 893.

19 And once in HVO custody, these Muslims were treated as one. No

20 distinctions were drawn by the HVO on the basis of status. No

21 distinctions were made between Muslim -- sorry, Muslim ABiH soldiers and

22 those who had served in the HVO or even those who were in custody merely

23 based on their supposed military age and nothing else. And no

24 distinctions were made between Muslims who had served in the HVO and

25 other Muslim detainees, no distinctions drawn in treatment between those

Page 554

1 who had deserted or those who were suspected of having participated in

2 the attack on the Northern Barracks or anyone else. In contrast,

3 detained Croat HVO soldiers, so, for example, those who had committed

4 disciplinary infractions, were distinguished from the detained Muslims

5 and held in separated quarters under better conditions. And this is

6 noted in the judgement in volume 3, paragraph 199. And I'd also refer

7 you to Witness E.

8 The arrested Muslim men were held together in appalling

9 conditions. They were beaten. They were sent to the front lines to do

10 dangerous and life-threatening forced labour. Ultimately, many were

11 expelled. And just like the other Muslim prisoners, the Muslims who had

12 once served in the HVO were not permitted to challenge their detention

13 regardless of status.

14 And based on these factual findings, the Chamber reasonably

15 concluded that the Muslim members of the HVO who were subsequently

16 disarmed and then detained by the HVO were actually in enemy hands. And

17 to make this determination, the Trial Chamber relied on the allegiance

18 test set out in Tadic appeals judgement. That's Tadic appeals judgement

19 of 1999 at paragraph 166. And in Tadic, the Appeals Chamber emphasised

20 that this legal approach, hinging on substantial relations more than

21 formal bonds, becomes all the more important in present-day international

22 armed conflicts.

23 So it's in accordance with this jurisprudence that the

24 Trial Chamber took into account that from the time of the attack on the

25 Northern Barracks on 30th June 1993, the HVO -- the HVO authorities

Page 555

1 themselves considered that the Muslim members of its ranks constituted a

2 threat to security. Not on an individual basis, not because of anything

3 that a single person had done, but rather, as an ethnic group.

4 And, thus, Your Honour, the Chamber was reasonable to conclude

5 that from at least 30th of June, 1993, the HVO Muslims were perceived by

6 the HVO as loyal to the ABiH, the enemy. And that's at volume 3,

7 paragraph 609 and 610.

8 Once arrested and detained, they were factually in enemy hands.

9 Volume 3, paragraph 611.

10 And this makes sense. And the Chamber followed the logic -- the

11 Chamber's logic follows the test that was approved in the Celebici

12 Appeals Chamber. The Celebici appeals judgement at paragraph 98. In

13 that case, as here, the victims were detained on the basis of their

14 ethnicity and the victims were regarded by the perpetrators as now

15 belonging to the opposing party and as posing a threat to the state. In

16 both cases, they were in enemy hands.

17 It's important to recall here that the crimes in this case in

18 these detention centres occurred during an ongoing campaign of ethnic

19 cleansing involving a widespread and systematic series of violent crimes

20 against Muslims. And it's in that context that the HVO rounded up all

21 the Muslims in its ranks, disarmed them, threw them into jail with all

22 the other able-bodied Muslim men without distinction, subjected them to

23 cruel and inhumane conditions of detention and mistreatment, and then

24 used this detention as a means to expel the detainees from the claimed

25 territory. And in these circumstances, Your Honours, it was reasonable

Page 556

1 for the Chamber to find that any bonds of allegiance that had previously

2 existed were severed. At this point, all of the detained Muslims,

3 including those who had initially served in the HVO, were factually in

4 enemy hands.

5 And legally, Your Honours, once a person is in enemy hands, then

6 the remaining question is: Which Geneva Convention applies?

7 The ICRC commentaries confirm that there are no gaps in the

8 protections afforded by the Geneva Conventions. The 1958 commentary to

9 Geneva Convention IV states:

10 "Every person in enemy hands must have some status under

11 international law ... there is no intermediate status; nobody in enemy

12 hands can be outside the law."

13 And that's at page 51.

14 And the 1987 commentary to Additional Protocol I confirms this:

15 "In armed conflict with an international character, a person of

16 enemy nationality who is not entitled to prisoner-of-war status is, in

17 principle, a civilian protected by the Fourth Convention, so that there

18 are no gaps in protection."

19 So once the Chamber determined that after being disarmed and

20 imprisoned the Muslims who had served in the HVO were now in enemy hands,

21 the Chamber had to figure out which of the conventions applied. It first

22 addressed the more specific convention, the more specialised one, that is

23 the Third Convention on prisoners of war and it found that its terms did

24 not fit.

25 The Chamber reasoned that the victims could not meet the

Page 557

1 requirement that they belonged to the adversary's armed forces, that is,

2 the ABiH. So they were not prisoners of war under Geneva Convention III,

3 and this analysis is set out at volume 3, paragraphs 603 and 604.

4 This entirely consistent with the facts. These victims were

5 never actually given any of the benefits of prisoner of war status and

6 many of those benefits don't even work unless they're granted to a person

7 who is actually a member of the adversary's armed forces, for example,

8 benefits relating to ranks and notifications.

9 So the Chamber moved on to consider Geneva Convention IV. And it

10 found that once arrested, the Muslim men who had been members of the HVO

11 were protected under the residual protections offered in

12 Geneva Convention IV. And this is a legally sound conclusion.

13 Although we generally think of Geneva Convention IV as the

14 civilians convention, the express terms of its protection extend beyond

15 the strict definition of a civilian. Although -- in Article 4,

16 Geneva Convention IV defines protected persons as:

17 "... those who, at any [sic] given moment and in any manner

18 whatsoever, find themselves, in a case of conflict or occupation, in the

19 hands of a party to the conflict or occupying power of which they are not

20 nationals."

21 So there's no mention of civilians in the definition of protected

22 persons for the purpose of Geneva Convention IV.

23 And the ICRC commentary explains that the definition in

24 Article 4, paragraph 1 is "a very broad one." And that it includes

25 members of the armed forces fit for service, wounded, sick, shipwrecked,

Page 558

1 who fall into enemy hands but who do not, for whatever reason, qualify

2 for protection under the first three conventions. You can find that at

3 page 50. So there's no inconsistency in the trial judgement.

4 Geneva Convention IV's definition of who is in enemy hands is simply

5 broader than that of Geneva Convention III. So it was correct and

6 consistent for the Chamber to find, on the one hand, that these detainees

7 were not prisoners of war because they were never actually formally part

8 of the ABiH armed forces - that's at volume 3, paragraph 604 - but, on

9 the other hand, that they were nevertheless protected under

10 Geneva Convention IV where the enemy is defined more broadly by

11 nationality or allegiance. And you can find that at paragraph 611 of

12 volume 3.

13 The Chamber's approach was fully in line with both the

14 jurisprudence of this Tribunal and with international humanitarian law.

15 My learned colleagues argued this morning that international humanitarian

16 law does not apply to a party's own armed forces. But this argument is

17 both irrelevant and inaccurate. It's irrelevant because at the time of

18 the crimes, these soldiers were factually determined by the Trial Chamber

19 to be in the hands of the enemy. So for the purposes of the

20 Geneva Conventions, they were no longer a party's own soldiers.

21 And this argument is also inaccurate because it's an

22 oversimplification. There is no such bright-line rule. On the contrary,

23 there are war crimes, such as the grave breaches in Geneva Conventions I

24 and II, that are not limited to persons who are in enemy hands and that

25 do expressly include crimes against a party's own soldiers. And I would

Page 559

1 refer you to Geneva Convention I, Article 12.

2 Likewise, Your Honours, crimes based on Common Article 3's

3 minimum protections would apply to members of the armed forces victimised

4 by their own party. And I would refer you to the ICRC's 2016 commentary

5 to Geneva Convention I which confirms that Common Article 3 serves as a

6 minimum yard-stick reflecting elementary considerations of humanity which

7 also applies to a party's own armed forces. And you can find that at

8 paragraphs 547 to 549. Common Article 3 does not require the victim to

9 be in the hands of the enemy.

10 And for this reason, if Your Honours were to reverse either of

11 the grave breaches of inhumane acts counts, that's Counts 13 and 16,

12 then we would ask you to substitute Counts 14 and 17. These are the

13 corresponding cruel treatment violations of the laws and customs of war

14 based on Common Article 3 of the Geneva Conventions. The Trial Chamber

15 has already made all the necessary findings for these counts but it did

16 not enter convictions because they were found to be impermissibly

17 cumulative of the Article 2 charges.

18 I would also note here, Your Honours, that similar fundamental

19 guarantees to Common Article 3 applying to a party's own forces are set

20 out in Article 75 of Additional Protocol I, and for its application to

21 the present situation, I would also refer you to Article 45(3).

22 And, so Your Honours, the Trial Chamber's conclusion that the

23 detained Muslims who had served in the HVO were protected persons was

24 correct in both fact and law.

25 Subject to any questions you might have, I will pass the floor

Page 560

1 now to my colleague Ms. Elmore, who would like to answer question 8.

2 JUDGE AGIUS: Yes. Please proceed. Thank you.

3 MS. ELMORE: Good afternoon, Your Honours. Elizabeth Elmore for

4 the Prosecution. I will be addressing question number 8 of the appeal

5 preparation order in which Your Honours asked whether, in convicting

6 Petkovic of the crime of unlawful infliction of terror on civilians, the

7 Trial Chamber made the necessary findings on his specific intent to

8 spread terror and what the impact would be if the Appeals Chamber found

9 that the Trial Chamber failed to provide a reasoned opinion in this

10 regard. This relates to Ground 3 of Petkovic's appeal.

11 Your Honours, the Trial Chamber made the necessary findings to

12 establish that Petkovic possessed the specific intent to inflict terror

13 on civilians. At volume 4, paragraph 820, the Chamber concluded that

14 Petkovic was criminally responsible as a member of a joint criminal

15 enterprise for the crime of terror. The judgement does not contain a

16 separate finding on his specific intent but this conclusion has to be

17 read into the Trial Chamber's ultimate conclusion that he was

18 individually criminally responsible for the crime of terror. And the

19 reason for this is because the Trial Chamber was aware of the

20 requirements for the crime of terror, including specific intent, and of

21 the requirements of JCE responsibility. And because the Trial Chamber

22 then made extensive factual and legal findings throughout the judgement

23 reflecting Petkovic's specific intent to inflict terror.

24 First, in volume 1, the Chamber correctly set forth that the

25 mens rea for terror requires the specific intent to spread terror as the

Page 561

1 primary purpose. That's volume 1, paragraph 197.

2 Then, in volume 3, the Trial Chamber found that the HVO committed

3 the crime of terror in East Mostar by committing acts of violence with

4 the specific intent to inflict terror on civilians as their primary

5 purpose. That's volume 3, paragraphs 1691 to 1692.

6 And here I would just like to emphasise something in relation to

7 Your Honours' earlier question on this point. It is not the

8 Prosecution's position that the volume 3 finding on the HVO's specific

9 intent to spread terror is sufficient reasoning to establish Petkovic's

10 specific intent. Rather, it's simply one of several steps in the

11 Trial Chamber's reasoning that led to its ultimate conclusion that

12 Petkovic intended the crime of terror in East Mostar. And this

13 conclusion and the reasoning for it is in volume 4. Here the

14 Trial Chamber expressly found that the crime of terror formed part of the

15 common criminal purpose, that's at paragraph 68, and that Petkovic

16 intended this crime be committed. That's at paragraph 815. And in

17 support of its conclusion that Petkovic intended this crime, it made

18 specific findings about his direct contributions to and knowledge of the

19 terror campaign.

20 I'll go through these in more detail in a moment, but, briefly,

21 the Trial Chamber found that Petkovic knew about the HVO crimes in

22 East Mostar, that he was obviously aware that these crimes terrorised

23 civilians, that he personally planned and ordered HVO crimes that

24 terrorised civilians, and, that, therefore, he intended the HVO's crimes

25 in East Mostar. That's volume 4, paragraph 750 to 756.

Page 562

1 Your Honours, these findings constitute a reasoned opinion for

2 Petkovic's conviction for the crime of terror. They reflect the

3 Trial Chamber's conclusion that he had the specific intent to spread

4 terror. Read as a whole, the Trial Chamber correctly understood the

5 legal issue to be determined and gave sufficient reasons for its

6 conclusions. There is no failure to provide a reasoned opinion.

7 However, if Your Honours do conclude that a discrete specific

8 intent finding was required, Your Honours can correct any oversight by

9 simply making express in the appeal judgement what is already evident in

10 the trial judgement and Your Honours can do so based on the findings of

11 the Trial Chamber alone. Because the only reading of these findings is

12 that the Trial Chamber was satisfied beyond a reasonable doubt that

13 Petkovic specifically intended to inflict terror on civilians. And here

14 I would refer you to the Naletilic appeal judgement, paragraph 122; the

15 Lukic and Lukic appeal judgement, paragraphs 437 to 440, and 459 to 461;

16 and the Stanisic and Zupljanin appeal judgement, paragraphs 356, 376, and

17 378. These are all cases in which an Appeals Chamber upheld the

18 Trial Chamber's ultimate conclusion even though a necessary finding was

19 not explicitly set out in the trial judgement. In each of these

20 cases, the Appeals Chamber considered that the trial judgement read

21 as a whole demonstrated that the Trial Chamber had determined the issue

22 in question.

23 And if Your Honours deem it necessary, it is certainly open to

24 this Chamber to go to the record and review the underlying evidence to

25 satisfy itself that the Trial Chamber's ultimate conclusion was correct.

Page 563

1 This would lead Your Honours to the same inescapable conclusion:

2 Petkovic possessed the specific intent to inflict terror on the civilians

3 of East Mostar.

4 So let me first take a moment to go through some of the Chamber's

5 relevant findings on what the HVO did to these civilians and why it

6 concluded that their primary purpose was to terrorise them. Then I will

7 address why Petkovic himself shared that intent.

8 First of all, HVO snipers deliberately shot civilians and shot at

9 them for nine straight months. And not just women, not just the elderly,

10 they deliberately shot children. They shot a boy named Orhan Berisa in

11 the back. He managed to crawl to safety out of the line of fire but he

12 still died later that same day. And he was 8 years old. That's

13 volume 2, paragraphs 1060, 1154, 1163; and volume 3, paragraph 1689.

14 For nine straight months, HVO heavy artillery shelled East Mostar

15 civilians on average 20 to 100 times per day. The HVO used planes to

16 drop napalm bombs on civilians and fired tires filled with explosives at

17 their homes. They struck at the very heart of the Muslim population's

18 cultural and religious life by deliberately demolishing ten mosques and

19 the Old Bridge. That's volume 2, paragraphs 1000, 1005 to 1006; and

20 volume 3, paragraphs 1689 to 1690.

21 Moreover, the HVO violently forced over 30.000 Muslims who had

22 been evicted from other places into overcrowded East Mostar and then

23 incrementally tightened the vise in which they had trapped them. In

24 addition to the sniping and shelling campaign, they intentionally

25 aggravated the brutal living conditions there, isolating them and

Page 564

1 impeding the delivery of desperately needed humanitarian aid. As the

2 Trial Chamber reasonably found, living day in and day out under the

3 constant threat of death or injury, in fact, terrified the population.

4 That's volume 2, paragraphs 1015, 1199 to 1200; and volume 3,

5 paragraphs 1689 to 1692.

6 Your Honours, the evidence and the findings on the events in

7 East Mostar support only one conclusion, the one that the Trial Chamber

8 reached, that the primary purpose of the HVO's acts of violence there was

9 to inflict terror on the civilian population.

10 So let me turn to the Trial Chamber's findings on Petkovic. In

11 concluding that Petkovic intended this terror, the Trial Chamber relied

12 on his knowledge of these acts of violence intended to inflict terror, on

13 his direct contributions to inflicting this terror, and on his awareness

14 of the actual terror inflicted. So let me take Your Honours through

15 these findings.

16 First we should be clear who these HVO forces were who committed

17 acts of violence with the primary purpose of terrorising civilians. So

18 these HVO forces who shelled terrified families for nine straight months,

19 who shot an 8-year-old boy in the back, these were Petkovic's troops, his

20 subordinates. As Mr. Schneider already explained, Petkovic was the chief

21 and then deputy commander of the HVO Main Staff during the relevant

22 time-period. He exercised command and control authority and effective

23 control over the HVO forces in East Mostar during the siege. That's

24 volume 4, paragraph 814.

25 And what did Petkovic do with his power over these forces? He

Page 565

1 planned and ordered the very HVO shelling attacks that the Chamber found

2 were undertaken with the primary purpose of terrorising civilians,

3 attacks that killed and injured civilians and destroyed mosques. In

4 fact, he ordered the very offensive in which the HVO shelled the

5 Old Bridge until it collapsed. Petkovic also personally impeded the

6 delivery of humanitarian aid and the access of international

7 organisations trying to help the trapped civilians. That's volume 4,

8 paragraphs 745 to 756.

9 Moreover, there's no doubt that he knew about not just the

10 existence of the terror campaign but the sheer magnitude of it.

11 International witnesses told Petkovic directly and repeatedly that his

12 troops were targeting both the civilian population and the members of

13 international organisations on the ground trying to help them. For

14 example, the SpaBat leadership went to Petkovic again and again about his

15 troops' attacks on both civilians and SpaBat personnel. As the Chamber

16 thus found, Petkovic knew of the resulting deaths, injury and

17 destruction, and was obviously aware of the terror inflicted on the

18 civilian population. That's volume 4, paragraphs 748 to 750.

19 And his response was to continue contributing to the common

20 criminal purpose. And he actually encouraged the commission of

21 subsequent crimes by continuing to deploy perpetrators to the field,

22 rather than trying to stop or punish them. That's volume 4,

23 paragraphs 815 to 816.

24 Your Honours, the Trial Chamber looked at Petkovic's knowledge of

25 the terrorisation of East Mostar civilians, at his direct contributions

Page 566

1 to the terrorisation of these civilians, and at his decision to keep on

2 contributing to the common criminal purpose, and the Trial Chamber

3 concluded that the only inference it could reasonably draw was that

4 Petkovic intended the crime of terror be committed there. Volume 4,

5 paragraph 815.

6 Your Honours, these findings constitute a reasoned opinion and

7 they clearly reflect the Trial Chamber's conclusion that Petkovic

8 specifically intended the terrorisation of these civilians.

9 However, if Your Honours do take the view that the Trial Chamber

10 erred by not making a discrete specific intent finding, we would urge

11 this Chamber not to leave Petkovic's criminal responsibility for this

12 terror unadjudicated. Your Honours can safely rely on the

13 Trial Chamber's underlying findings or go to the underlying evidence, if

14 needed, but Petkovic should not be acquitted of this crime due to a lack

15 of a specific intent finding by the Trial Chamber. Petkovic and his

16 troops trapped over 55.000 civilians in East Mostar and then terrorised

17 them for months on end. Those civilians deserve a final adjudication of

18 his responsibility for it.

19 If there are no questions, Your Honours, that will conclude my

20 submissions and to conclude -- for all the reasons set out in our brief

21 and argued today, Petkovic's appeal should be dismissed.

22 JUDGE AGIUS: That's all? That's all, okay.

23 Defence for Mr. Petkovic. You have 30 minutes starting from now.

24 MS. ALABURIC: [Interpretation] Again, good day to everyone in the

25 courtroom.

Page 567

1 Your Honours, we shall commence our answer with the topic how

2 many residents of an area have to be expelled in order to find ethnic

3 cleansing? Please look at an excerpt from the Prosecution's response,

4 where he states that ethnic cleansing does not necessarily have to be

5 committed in order to find that the criminal intent of ethnic cleansing

6 has been accomplished. It's still not on the screen. That's what the

7 Prosecution cites in paragraph 42 of their response, and my learned

8 friend Mr. Schneider also said today that it is not necessary for ethnic

9 cleansing to have been committed for something to be deemed committed

10 with the criminal intent of ethnic cleansing. The Prosecution cited the

11 appeals judgement from the Djordjevic case, paragraph 154. You will see

12 from this passage that the Prosecution simply misquoted this judgement

13 and claimed that something exists in the jurisprudence of this Tribunal.

14 This paragraph actually says that ethnic cleansing needs not have been

15 committed on a permanent basis. It can be only temporarily achieved for

16 the criminal intent of ethnic cleansing to hold. The Prosecution and the

17 Defence team of General Petkovic have spent already a lot of time on

18 this, and that's why in my introduction I put an excerpt from the

19 Djordjevic judgement where it states that ethnic cleansing has to be

20 accomplished for the criminal intent of ethnic cleansing to stand.

21 The Prosecution conceived their response in such a way that with

22 regard to one accused, they cover topics raised by other Defences. I'm

23 now going to digress a little from today's response of the Prosecution

24 and spend one minute on the maps shown to us by the Prosecution in this

25 courtroom. They showed us a map of Herceg-Bosna and the map of Banovina

Page 568

1 from 1993, and that was supposed to be proof that there was an intention

2 to recreate the Banovina in Bosnia-Herzegovina.

3 Now, to these maps we added the map of the territorial

4 organisation of Bosnia-Herzegovina under the Vance-Owen Plan from

5 January 1993 and a map of the Owen-Stoltenberg Plan from August 1993.

6 With a margin of error plus/minus 10 per cent of the territories, these

7 are identical maps. Because this concerns territories with the majority

8 Croat population.

9 Your Honours, if we asked Mr. Serge Brammertz this very minute to

10 organisation territorially Bosnia-Herzegovina taking into account the

11 ethnic makeup of the population, he would produce a very similar map.

12 Now, I would like to say a few words on the topic of occupation

13 covered by the Defence of General Praljak, speaking about the conflict in

14 general, but I wish to make four points on the topic of occupation that I

15 believe are very important. First of all, the topic of occupation is

16 important not only with regard to the crimes from Count 19 of the

17 indictment, as asserted by the Prosecution, it's also important to

18 Counts 7 and 9 because these crimes are crimes of transfer and

19 deportation that can concern only the civilian population, and then the

20 issue is whether the state of occupation is actual and relevant.

21 The Trial Chamber established beyond a reasonable doubt that

22 there was a war from May 1993 until spring 1994. If we start from the

23 premise that warfare excludes a state of occupation, then crimes from

24 Counts 7, 9 and 19 could not have been committed in the territory of

25 Mostar.

Page 569

1 Another point on occupation we believe is important is this. The

2 Trial Chamber adopted the criteria from the Naletilic judgement which

3 held that a state of occupation was established, and it was in judgement,

4 volume 1, paragraph 88. However, in our view, the Chamber erroneously

5 found that all these criteria do not have to be met cumulatively. Our

6 position is, from interpreting the Naletilic judgement, paragraph 587,

7 that these criteria must be met cumulatively. It is our view that had

8 the Trial Chamber applied these criteria cumulatively, they would not

9 have found a state of occupation in the relevant areas.

10 The third important thesis for us today is this. We deem

11 indubitable the stand of jurisprudence that a state of war exists and a

12 state has overall control over forces in another state. We also find

13 indubitable that occupation exists if an occupation force, that is to

14 say, another state, has effective control over a territory that is

15 considered to be occupied. Our Trial Chamber, in fact its majority,

16 introduced through the back door via a state agent a change to this

17 rule and determined the following: That Croatia had overall control over

18 the HVO without bothering to determine the effective control of Croatia.

19 It still found that Croatia was an occupation force in

20 Bosnia-Herzegovina. We believe that a state of occupation determined in

21 this way is simply incorrect and that it is an erroneous application of

22 law that invalidates the judgement.

23 And, finally, speaking of occupation willy-nilly, we bear in mind

24 the authority of the occupation commander as the occupation governor and

25 we perceive the tasks and authorisations of the commander differently

Page 570

1 than we would in a situation where there is no occupation. And that

2 affected directly, in our view, the perception of the role and

3 responsibility of General Petkovic as the commander of the HVO.

4 Just a few words about Mostar and the claim made both in the

5 judgement and by the OTP today that Petkovic ordered the shelling of

6 Mostar and that he is, therefore, liable for the crime of terror against

7 civilians.

8 Your Honours, the whole story about Petkovic's participation in

9 the shelling of Mostar is based on Exhibit P6534, which is an order that

10 we've seen today on our screens, not signed but goes under the name of

11 General Petkovic dated 8 November, and the Prosecution claims it's an

12 order by Petkovic based on which the Old Bridge was destroyed. We wish

13 to tell you, Your Honours, that the Prosecutor made this claim for the

14 first time in their final brief. To tell you the truth, we were shocked

15 because, at that moment, until that moment, neither we nor

16 General Petkovic heard that he was ever directly linked to the

17 destruction of the Old Bridge. That's why we, the Defence of

18 General Petkovic, had never dealt with the subject at all. It was only

19 in our closing arguments that we had to prove it's not a document issued

20 by General Petkovic. From the evidence in the case, and we spoke of this

21 in detail in our appeal brief, it is indubitable that General Petkovic

22 was in Split on that day; 4D2026, 4D2026 [as interpreted], and the

23 testimony of General Praljak, transcript 41270.

24 There is absolutely no doubt that under the name of General

25 Petkovic a number of other documents were issued, including one order,

Page 571

1 4D834. General Praljak, in his testimony, said that this document that

2 went out under Petkovic's name was not issued by Petkovic, nor was it

3 signed by him. The testimony of General Praljak, T41270.

4 Let us look at how our Trial Chamber evaluated this evidence.

5 Judgement, volume 2, paragraph 1301. The Chamber stated as follows:

6 "Petkovic could have issued that order from Split as well. The

7 Chamber had no proof that Petkovic had not done so from Split and,

8 therefore, concluded that he did."

9 This is, Your Honours, believe it or not, a verbatim quotation

10 from the judgement on such an important issue as whether Petkovic did or

11 did not issue the order to destroy the Old Bridge.

12 Now on the topic of Stupni Do. We do not argue that crimes were

13 committed, certainly not, but we wish to point out the following

14 circumstances. Also thanks to an order by General Petkovic, the

15 representatives of the international community, including the UNPROFOR,

16 entered Stupni Do two days later; P6078. These alleged crimes, because

17 nothing was known exactly at that time, were notified to General Petkovic

18 by General Ramsey; P6144.

19 On the 2nd November 1993, the Army of Bosnia-Herzegovina took

20 Vares. We have discussed this today. Thus, two days after the

21 commission of the crimes in Stupni Do, overall control of the area where

22 the crimes were committed was in the hands of the international community

23 representatives and the Army of Bosnia-Herzegovina. Nobody from the HVO,

24 including General Petkovic, was able to do anything to prevent the crimes

25 from being investigated. This inquiry and the whole control was in the

Page 572

1 hands of the representatives of the international community and the ABH.

2 What is in issue for my client is whether he did or did not participate

3 in identifying the people responsible for the crimes and in punishing

4 them. On this point, we wish to emphasise that it was the Prosecution

5 that conducted the investigation of the crimes in Stupni Do. Documents

6 4D499; 4D500; the testimony of Witness EA; Witness Bandic; and Petkovic.

7 I can refer you to footnote 398 of the Petkovic appeal brief.

8 The top commander of the HVO, Mate Boban, was familiar with all

9 the information available to the HVO at that time, as did the

10 then-Defence minister Jukic. We detailed this in paragraph 290 to 294 of

11 our appeal brief. What is true, Your Honour, is that the top commander

12 of the HVO, Mate Boban, decided that Commander Ivica Rajic should remain

13 in his position but change his name to Viktor Andric. And the reasons

14 for this decision were this: They wanted to deceive the representatives

15 of the international community into believing that the person responsible

16 for the crimes had been removed from their position while retaining the

17 commander, whom the top commander considered to be the only one able to

18 ensure that the HVO not lose control over Kiseljak. This fact was known

19 to my client, General Petkovic. He bears his part of the responsibility

20 for this awareness, but the fact stands that that he, from his position

21 of chief of Main Staff, was unable to take any steps against it at the

22 time.

23 May I make a correction? On page 90, line 2, it's not chief of

24 Main Staff. It's deputy chief of Main Staff.

25 Your Honours, I think that I still have nine minutes.

Page 573

1 JUDGE AGIUS: You have ten, actually.

2 MS. ALABURIC: Ten, okay. Good.

3 [Interpretation] Just a few words about the Bruno Busic units and

4 the Convicts Battalion for which, in the judgement, the Trial Chamber

5 established that they committed crimes and that by engaging those units

6 in certain military actions Petkovic contributed to the implementation of

7 the criminal purpose. And we discussed this in detail and we contested

8 these arguments in detail in our appeal, paragraphs 331 to 351. And I

9 hope that you will take that into account.

10 A few words about the Bruno Busic unit. There is no document in

11 the case file, no report indicating that the Bruno Busic unit committed

12 any crimes in Gornji Vakuf in January of 1993. When I say "document," I

13 mean a document that was issued in 1993, in January or subsequently in

14 1993, and which could have objectively been accessible to anyone at the

15 Main Staff.

16 I see my colleague Mr. Stringer is looking for facts, so I can

17 say that this assertion by the Trial Chamber is based on a document of

18 the ABiH drafted in late 1993 and on two testimonies of Prosecution

19 witnesses. Thus, there is no document unless I made an oversight in my

20 analysis and I don't think that I did. We can say that no document

21 dating from the first half of 1993 exists indicating that the Bruno Busic

22 unit committed any crimes in Jablanica in April 1993.

23 The Trial Chamber itself established - and I don't want to be too

24 detailed here - that a number of soldiers from that unit were present in

25 the territory where mistreatments of imprisoned Muslim soldiers occurred,

Page 574

1 but there is not a single word indicating that members of the Bruno Busic

2 Brigade committed any crime. Thus, any assertions about the engagement

3 of this unit in some military operations with the objective of permitting

4 or carrying out any criminal acts is unfounded.

5 As for the convicts unit, which really was a very problematic

6 one, we attempted to prove, in the course of five years in the courtroom,

7 that this unit was a part of the HVO but that it was directly

8 subordinated to the Supreme Commander, Mate Boban, and that

9 Milivoj Petkovic did not have direct control over that unit.

10 If you look at what the Prosecution said on this topic today, you

11 will see that they referred to one single document only dated the 2nd of

12 July, 1993. This is document P3128. But the Prosecution also noted that

13 Petkovic was not the only signatory of the document. It is our position

14 that that document does not provide any grounds for a rational and

15 founded conclusion that the Convicts Battalion was directly under the

16 command of the Main Staff and that the assertions of the Defence [as

17 interpreted] are incorrect that the unit was directly subordinated to the

18 Main Staff -- to the Supreme Commander.

19 I correct the transcript. Line 21, it should be assertion by the

20 Prosecution. Very well. I cannot be following the transcript at the

21 same time.

22 To move on. Our colleague Mr. Schneider also drew an equal sign

23 between two things: The planning of military actions and the planning of

24 crimes. The Trial Chamber also did that. So the Trial Chamber and the

25 Prosecution said, You were planning a military operation and crimes

Page 575

1 occurred as part of that military operation. Therefore, you planned

2 military crimes. We consider this to be just a logical error, and this

3 manner of drawing conclusions cannot lead to any valid conclusion.

4 We can look at General Petkovic's orders, all of the orders of

5 General Petkovic, which are in Annex 4 of our final trial brief.

6 Your Honours, we tried to provide to the Trial Chamber what kind of

7 orders General Petkovic issued. So if you look at line one, these are

8 commands on military activities. There are two up to 1993 and there are

9 ones that were issued subsequently. If we analysed them in detail, you

10 will see that there are no orders there relating to military actions or

11 military operations. These are mostly types of orders, fortify lines,

12 logistics, strengthen the lines and so on and so forth. An analysis like

13 this about the content of the orders indicates that the HVO did not plan

14 nor did it conduct assault offensive actions against the ABiH. And the

15 structure of all the orders indicates that the HVO reacted to the actual

16 situation in the field, that it tried to strengthen some lines of

17 defence, and that it was simply attempting to save the situation that was

18 in force at that particular moment. So we believe that this document

19 contradicts the assertion about planning military actions in which crimes

20 were committed and therefore the conclusion that thereby crimes were

21 planned.

22 Finally, I wanted to talk about Jablanica, Sovici and Doljani.

23 The Prosecution stated a number of times during these past four days that

24 in early May --

25 JUDGE AGIUS: You have less than one minute.

Page 576

1 MS. ALABURIC: [Interpretation] That in early May in Sovici,

2 Petkovic, Pusic, and others were present, and these others are

3 General Sefer Halilovic, Arif Pasalic, and representatives of the

4 international community. All of them together were touring the terrain

5 and trying to ascertain the status there and to assist the population to

6 the necessary degree. At Halilovic's request, the HVO provided

7 assistance that Halilovic needed.

8 Your Honours, thank you very much. Thank you.

9 JUDGE AGIUS: That concludes today's sitting. We will reconvene

10 tomorrow morning at 9.30 to hear the submissions of the Defence of

11 Mr. Coric.

12 Thank you. Have a nice evening.

13 --- Whereupon the hearing adjourned at 3.50 p.m.,

14 to be reconvened on Friday, the 24th day of March,

15 2017, at 9.30 a.m.