Page 747

1 understand the proceedings in their own language? All right. So that's

2 fine.

3 Prosecution, you have two hours.

4 MS. BAIG: Your Honours, I will deal with the first three grounds

5 of appeal concerning criminal responsibility. In each of these grounds,

6 the Prosecution focuses primarily on errors of omission, where the Trial

7 Chamber leaves something incompletely adjudicated.

8 I will then hand over to my colleague Ms. Goy, who will address

9 ground 4 on sentencing.

10 Starting with ground 1, which raises five interrelated errors in

11 the Trial Chamber's JCE analysis.

12 I'd like to jump first to the heart of ground 1, the failure to

13 adjudicate or give reasons, which is subground 1(c). The problem here is

14 a very simple one. In relation to many of the JCE incidents, the Trial

15 Chamber did not adjudicate individual criminal responsibility for these

16 crimes in any meaningful way. The Trial Chamber assesses the evidence

17 and finds that the crimes charged in the indictment were factually proven

18 beyond a reasonable doubt, and that's generally found in volume 2 or the

19 beginnings of volume 3.

20 And then the Chamber finds that the alleged incidents meet all of

21 the legal elements of the crimes charged in volume 3, and the Trial

22 Chamber goes on to find that the crimes were the "natural and foreseeable

23 consequence of the JCE 1 being carried out."

24 Volume 4, paragraph 72.

25 The Chamber diligently made all these findings. However, when it

Page 748

1 comes to who should be held criminally responsible, the Trial Chamber

2 fails to systematically address whether each of the defendants could

3 personally foresee the risk that each of these proven criminal incidents

4 might occur. And to the extent that this failure to adjudicate was an

5 implicit acquittal, in the sense that no conviction was entered, the

6 Prosecution has also appealed this as a failure to give reasons.

7 I should point out at the outset that for Pusic these crimes are

8 technically adjudicated, but they're all adjudicated in one single

9 sentence. Volume 4, paragraph 1216.

10 The Chamber gives a sweeping omnibus dismissal of all but two of

11 the JCE 3 incidents. Without assessing the evidence, the Chamber just

12 says that it does not have any evidence of his JCE 3 guilt. This bare

13 adjudication for Pusic is appealed only as a failure to give a reasoned

14 opinion. So, Your Honours, let me take you to one example to illustrate

15 the nature of this problem. In paragraph 161 of the indictment, the

16 Prosecution charges all six of the accused with the murder of

17 Sanida Kaplan in Stolac on 13 July 1993. Her name is specified in the

18 indictment's annex.

19 Sanida was killed after HVO armed forces entered her tiny

20 village, which consisted of only 13 Muslim and two Croat houses. She was

21 just shy of her 18th birthday. The HVO forces came into the village and

22 they proceeded to violently expel the Muslim families from their homes.

23 They arrested the men who had not been rounded up in previous raids,

24 firing weapons and shouting death threats.

25 In the course of these expulsions, an HVO soldier named

Page 749

1 Dragan Bonojza arrived at the front door of the Kaplan home. As Sanida

2 came to her front door, he opened fire at close range, killing her in a

3 burst of gun-fire. Her mother Fata watched helplessly as her daughter

4 was shot in the head. She testified before this Tribunal that the killer

5 then forced her to leave her daughter's body. Along with her neighbours

6 and the rest of her family, Fata was then taken away by the HVO and

7 detained in a school in a nearby village. The Chamber's findings on

8 these facts can be found at volume 2, paragraphs 1934 to 1938.

9 The Chamber went on to find that Sanida Kaplan's killing was both

10 a murder as a crime against humanity charged under Count 2 and wilful

11 killing of a civilian charged as Count 3. And that's volume 3,

12 paragraphs 684 and 735.

13 The Chamber found that in order to evict Muslims from their homes

14 in furtherance of the common criminal purpose, the HVO forces engaged in

15 acts of extreme violence, threatening and mistreating Muslims, making

16 such killings and other crimes a natural and foreseeable consequence of

17 the joint criminal enterprise. That's volume 4, paragraph 72.

18 At volume 4, paragraphs 70, the Trial Chamber even lists this

19 exact killing as an example of the foreseeable JCE 3 crimes. Despite

20 having made all of these specific findings about this killing: that it

21 happened as charged, who did it, that it was an international crime, and

22 even what mode of liability should apply, the Chamber fails to determine

23 if three of the six accused were criminally responsible. It only

24 addresses the criminal responsibility of Petkovic and Coric. And for

25 Pusic, this incident is one of the 33 dismissed without any reasons.

Page 750

1 And this is not the only murder that was overlooked. In fact,

2 the Trial Chamber does not address whether Stojic or Praljak could

3 foresee any of the 53 murders under JCE 3. Fifty-three people were found

4 to have been murdered in the execution of the joint criminal enterprise,

5 and the Chamber didn't even consider whether Stojic or Praljak were

6 responsible for any of them.

7 And the Chamber fails to address the criminal responsibility of

8 any of the defendants for any of the identified crimes in Prozor

9 municipality under JCE 3. None of the Prozor murders, none of the rapes

10 or sexual assaults, not the destruction of the Skrobucani mosque, and not

11 the thefts. And the Chamber missed other entire municipalities of crimes

12 in relation to other defendants.

13 And when Your Honours exam this issue more closely, you will see

14 that the Chamber's treatment is inexplicably inconsistent across the six

15 defendants.

16 So to give you a sense of the scale of this problem -- I'm hoping

17 it will come up on the big screen. To give you a sense of the scale of

18 the problem, so based on indictment and the trial judgement that we've

19 summarised in the tables in our appeals brief, there were approximately

20 36 JCE 3 incidents. And I would note that each incident might comprise

21 more than one victim or occur over a period of time. So you multiply

22 this by six accused. And if you adjust a bit for those who joined the

23 JCE later or left earlier, there's a total of approximately of 211

24 incidents for which we would expect the Trial Chamber to address criminal

25 responsibility. And the circle represents these 200 expected criminal

Page 751

1 responsibility adjudications.

2 Of the 211, around 150 of them are missing. So this is the

3 orange piece of the pie. Either the Chamber did not address criminal

4 responsibility at all or, for Pusic, dismissed the 33 incidents in a

5 single unreferenced sentence. So for more than 70 per cent of the proven

6 JCE 3 incidents, we do not have a finding on individual criminal

7 responsibility or at least not reasoned ones.

8 The scale of this omission is unprecedented and it cannot stand.

9 The Trial Chamber appears to have forgotten to determine which of the

10 defendants bears criminal responsibility for these serious crimes against

11 humanity and war crimes. And this is an unacceptable outcome for

12 everyone, for the victims; for the witnesses, such as Fata Kaplan, the

13 bereaved mother who travelled to The Hague to tell the Chamber -- to tell

14 this Court about her daughter's murder and her family's ordeal. And it's

15 an unacceptable outcome for the international community and for the legacy

16 of this Court. It's the primary responsibility of the Trial Chamber to

17 fully adjudicate the indictment before it, and in this case justice has

18 been left incomplete.

19 Your Honours, I will turn now to the grounds of appeal that

20 concern the JCE 3 incidents that were adjudicated by the Trial Chamber.

21 Starting with ground 1(a), this is the mens rea error. In short,

22 Your Honours, the Trial Chamber erred in applying the wrong mental

23 element for JCE 3. The correct standard is whether the foreseeable

24 crimes were a possible consequence of the joint criminal enterprise.

25 According to the well-established case law, this test is not satisfied by

Page 752

1 implausibly remote scenarios. The law requires that the possibility that

2 a crime might be committed is sufficiently substantial to be foreseeable

3 to the accused. And I'd refer Your Honours to Sainovic appeals

4 judgement, paragraph 1557; and the Karadzic JCE 3 appeals decision cited

5 in our brief.

6 But in this case, in many instances, the Trial Chamber looked for

7 a probable rather than a possible consequence that the crimes would be

8 committed instead of could or might and that the crimes were a probable

9 outcome of the furtherance of the common purpose instead of a possible

10 one. And this sets the level of foreseeability too high. Your Honours,

11 because the original language of the trial judgement is French, I'm

12 putting both the original and the translation of the paragraphs that I'll

13 be citing up on the screen.

14 And you can see that in volume 1, paragraph 216, the Chamber sets

15 the legal standard for JCE 3 too high. The Chamber says that the JCE 3

16 requires that the accused deliberately assumed the risk that the crime

17 would be committed, because he knew that a crime of this sort was the

18 probable outcome of the furtherance of the common criminal purpose.

19 The Trial Chamber applied this heightened standard in many places

20 throughout its JCE 3 analysis. And the Trial Chamber's analysis of

21 Stojic's criminal responsibility is a good example of this error in

22 action, because the Trial Chamber uses the heightened standard

23 consistently in its analysis.

24 So starting at volume 4, paragraph 433, the Trial Chamber sets

25 out to assess whether Stojic could reasonably have foreseen that the

Page 753

1 JCE 3 crimes would be committed and took that risk. The Trial Chamber

2 then consistently applies the wrong standard to all nine of its findings.

3 Applying the wrong standard, it convicts Stojic of five JCE 3 crimes. At

4 paragraph 437 it reasoned that he could foresee -- could have foreseen

5 that HVO members would also commit sexual abuse during the Mostar

6 evictions. And at paragraphs 439, 445, 446, and 447, that he could

7 foresee HVO would commit acts of theft.

8 And then applying the wrong standard again, the Trial Chamber

9 acquits him of four crimes, finding at paragraphs 441, 443, 448, and 449

10 of volume 4, that he could not have foreseen that thefts or religious

11 destruction would occur during certain operations.

12 The Trial Chamber is not consistent. In some places, most

13 notably in its analysis of Prlic's responsibility, the Trial Chamber

14 refers to the correct level of foreseeability, a possibility.

15 But in relation to the majority of the adjudicated JCE 3 crimes,

16 the Trial Chamber applies the incorrect probability standard. The

17 heightened legal standard results in erroneous acquittals in relation to

18 21 incidents. To the extent that Pusic's omnibus acquittal was an

19 adjudication, it also seems to have been done at this heightened

20 standard, raising the total number of errors to 54. These are the

21 incidents that the Prosecution has appealed.

22 For ten additional incidents, the foreseeability evidence was so

23 strong that the Trial Chamber convicted at the heightened standard. And

24 let me pause here because this is the subject matter of question 10 from

25 the Bench. Your Honours, even though there is a legal error in the

Page 754

1 existing -- in some of the existing JCE 3 convictions, it is not one that

2 invalidates the judgement. The evidence that satisfies the higher

3 standard probability would necessarily also satisfy the correct standard.

4 Neither the Prosecution nor the Defence have appealed these legal errors

5 because they have no impact. Applying the correct test, the outcome is

6 the same: Conviction.

7 Various respondents have suggested in their briefs that the Trial

8 Chamber should be presumed to have applied the correct test despite its

9 choice of language. But, Your Honours, this is not a case where the

10 Chamber deliberately sets out to analyse the facts against the correct

11 legal standard and then uses a couple of stray words. Here, the Chamber

12 sets out the law at the wrong standard and then actively refers to this

13 wrong standard in approximately 75 per cent of the JCE 3 crimes it

14 adjudicates. For only 14 of the 60 adjudicated JCE 3 incidents does it

15 appear that the Chamber applied the correct standard, so there's no basis

16 to presume that the correct test was applied.

17 Your Honours, we ask that you apply the correct standard to the

18 Chamber's findings in the evidence and convict the respondents as set out

19 in our brief.

20 Turning now to ground 1(b) concerning the compartmentalisation of

21 the evidence.

22 Your Honours, in this ground, in this subground, the Prosecution

23 takes issue with the Chamber's restrictive assessment of the evidence

24 related to foreseeability. In assessing whether the JCE 3 crimes were

25 foreseeable, the Trial Chamber was, of course, required to look at the

Page 755

1 totality of the evidence, including the surrounding circumstances in

2 which the crimes were committed. And the totality of the accused's

3 relevant intent and knowledge. Instead, it focussed very narrowly on the

4 particular location under consideration, assessing whether a particular

5 crime was foreseeable based exclusively on events in and information

6 about that particular municipality, village, or detention centre.

7 I will illustrate this compartmentalisation error with a simple

8 example.

9 When considering Prlic's JCE 3 responsibility for the

10 5 December 1993 shooting death of a detainees in the Vojno detention

11 centre, the Trial Chamber found that Prlic was only informed of the

12 killings in that location by an ICRC letter on 20 January 1994, just over

13 a month later. It reasoned that since the crime occurred before he

14 received the letter, it couldn't find that he could reasonably have

15 foreseen the murder. That's at volume 4, paragraph 287.

16 But the Chamber erred in focussing exclusively on this one ICRC

17 letter as the exclusive evidence of the foreseeability of this killing.

18 Based on this piece of evidence, assessed in isolation, the Trial Chamber

19 acquitted; and that was wrong. In order to properly assess whether Prlic

20 could foresee the risk that a murder might occur in Vojno detention

21 facility in December 1993 many months into the execution of the joint

22 criminal enterprise, the Trial Chamber was required to look beyond actual

23 notice of murders in that particular location. And if it had done so, it

24 is clear from the Chamber's other findings that by December 1993 Prlic

25 could foresee the risk that murders of Muslims might occur in the HVO

Page 756

1 network of detention facilities, including at Vojno. So, for example, it

2 would have been relevant to the Chamber's assessment that the JCE -- that

3 the Trial Chamber concluded that Prlic could foresee murders in other

4 detention facilities in the same network, for example, in Sovici and

5 Doljani, as early as April 1993. That's volume 4, paragraph 283. And

6 that Prlic knew of the life-threatening conditions in two other network

7 detention facilities, Dretelj and Gabela by 19th of July, 1993. Volume 4

8 paragraph 286. And that Prlic could foresee other murders during

9 evictions from at least June 1993. Volume 4, paragraph 284. And let's

10 not forget that the Chamber's JCE 1 finding that Prlic shared the intent

11 to remove the Muslim population from Herceg-Bosna through commission of

12 crimes, including persecution and murder. Volume 4, paragraph 276 and

13 287. That he shared the intent to detain Muslims in cruel and inhuman

14 conditions and to mistreat them and to use them for forced labour

15 resulting in their death on the front line. Volume 4, paragraph 23 --

16 sorry, 273, 274, and 287.

17 Had the Trial Chamber not made a legal error in looking only at

18 that Vojno evidence in isolation, the only conclusion available on the

19 totality of the evidence was that Prlic was aware of the possibility that

20 a Vojno detainee might be killed in December 1993, and he should be

21 convicted under JCE 3 for this crime.

22 As set out in our brief, this error - artificially

23 compartmentalising the evidence in this way - has resulted in and

24 contributed to erroneous acquittals. And we ask Your Honours to correct

25 these errors as set out in our brief.

Page 757

1 In relation to Coric, the Trial Chamber took this

2 compartmentalisation to the extreme. This is subground 1(d). The Trial

3 Chamber not only limited its evidentiary analysis to a specific location,

4 it also required that Coric contributed to a particular JCE 1 crime in

5 those locations as a precondition for JCE 3 responsibility. The Trial

6 Chamber was not even satisfied that Coric participated in related JCE 1

7 crimes in those same localities. So the Chamber found that Coric

8 participated in the arrest and detention of the men in Stolac and

9 Capljina, but because he did not personally have a hand in the concurrent

10 evictions of the women, children, and elderly, the Chamber found that he

11 was not responsible for those JCE 3 crimes, which included 16 murders

12 including Sanida Kaplan and the thefts. And that's volume 4,

13 paragraph 1015, referring back to paragraph 953.

14 In doing so, the Trial Chamber adds a new requirement that the

15 accused must have specifically contributed to a particular JCE 1 crime in

16 a particular location, and this is an error. There's no legal basis for

17 this additional requirement. Indeed, any such requirement would run

18 contrary to the very foundation of the legal notion of joint criminal

19 enterprise, which is based on participants contributing to different

20 activities in order to achieve their shared common criminal purpose.

21 Finally, Your Honours, in ground 1(e), the Prosecution also

22 raises errors of fact. No reasonable trier of fact could have acquitted

23 for these crimes. For the detailed factual arguments in relation to each

24 respondent, we rely on the submissions set out in our briefs. It

25 suffices for my oral submissions to point out that correcting these

Page 758

1 errors would not require extensive appellant fact-finding. Applying the

2 correct legal and evidentiary standards, the respondents' convictions for

3 JCE 3 responsibility in most instances can be entered based on the

4 Chamber's own findings.

5 In particular, Your Honours, the Chamber has already made

6 findings on many of the contextual factors that the Appeals Chamber has

7 previously identified as making the commission of a specific type of

8 crime falling outside the common purpose foreseeable. And I'd refer

9 Your Honours to Sainovic appeals judgement paragraph 1089.

10 For example, the Trial Chamber found that each of the JCE members

11 intended a wide range of violent and persecutory crimes against Muslims -

12 these were the means by which the common purpose was to be achieved - and

13 not just for forcible displacement crimes, but also murders during

14 attacks and the wanton and extensive destruction of property not

15 justified by military necessity. They intended illegal detentions and

16 the inhuman and cruel treatment of vulnerable detainees and murders

17 during dangerous and illegal front line forced labour. And after (sic)

18 30 June 1993, the JCE members were found to have intended to spread

19 terror, to unlawfully attack Muslim civilians through sniping and

20 shelling, to destroy Muslim religious buildings.

21 And it's not only their intent to further the common criminal

22 purpose using incredibly violent means, they were each also aware of how

23 the JCE was being implemented on the ground. The JCE members knew that

24 eviction operations involved a climate of extreme violence. There are

25 many findings in the judgement on this. Each of them was aware of the

Page 759

1 climate of ethnic animosity, ethnic separation was their very purpose.

2 Each of them participated in various aspects of the pattern of

3 criminality in execution of the joint criminal enterprise across

4 different municipalities and in various detention settings. And they and

5 their fellow JCE members were not taking any -- or at least not any

6 effective steps to curb this criminality, further fuelling the

7 possibility that it would occur again and again in the course of the

8 JCE's implementation across Herceg-Bosna. And each of them were aware of

9 factors identified in previous cases as making victims more vulnerable,

10 thereby indicating a heightened risk of JCE 3 crimes.

11 For example, they knew about separations based on gender, that

12 the male Muslim population was being rounded up and detained, separating

13 them from the women, children, and the elderly. Each of them knew that

14 detainees were being held in terrible conditions where they were

15 subjected to deprivations and violence. And they knew of the presence of

16 criminals in units dispatched to carry out operations in close contact

17 with Muslim civilians, such as Naletilic's notorious convicts battalion.

18 The Chamber's compartmentalised assessment of JCE 3 crimes fails

19 to address this overall context. But when you break down the

20 compartments and put the Chamber's factual findings back together, in

21 most instances this is already sufficient, sufficient to demonstrate

22 beyond a reasonable doubt that each of the respondents could foresee the

23 risk that murders, rapes, destruction of religious property, and thefts

24 might occur.

25 As an example, look at the Chamber's assessment of the

Page 760

1 foreseeability of thefts, plunder and appropriation of property. The

2 Chamber found that all five of the defendants who were JCE members at

3 that time could foresee JCE 3 threats following the attacks on

4 Gornji Vakuf in January 1993.

5 So from the very beginning of the JCE's implementation, each of

6 them already knew that eviction operations were being conducted in a

7 manner that made threats a possible consequence of the execution of the

8 common criminal plan. And the Chamber even convicted four of them for

9 foreseeing the risk that thefts were a probable consequence of the JCE's

10 execution in Gornji Vakuf. In addition, each of the five are also

11 convicted of thefts in at least one other municipality after

12 Gornji Vakuf, and this pattern of thefts from Muslims, plunder and

13 appropriation of property, continued through the execution of the common

14 criminal plan.

15 The Chamber's own findings are sufficient to fill the gaps that

16 the Chamber left. Applying the correct legal and evidentiary standards,

17 the findings that they've already made are sufficient to convict each of

18 them for JCE 3 thefts. Since each of the respondents, each of the five

19 respondents, already knew in January 1993 that thefts might occur in the

20 execution of the joint criminal enterprise, then they could also foresee

21 this risk in April in relation to Jablanica and May in Mostar and July in

22 Stolac and Capljina and then in Prozor and Vares, especially since their

23 knowledge of the violent discriminatory operations only grew over time

24 and since they took no or at least no effective steps to stop the

25 violence and property crimes.

Page 761

1 Your Honours, foreseeability does not depend on whether a

2 particular respondent knew or did not know that a military attack was

3 planned on a certain day in a certain place. Foreseeability does not

4 require that kind of accurate prediction of the future.

5 The Appeals Chamber already rejected that approach in the Krstic

6 case. In response to a Defence complaint that he was being held

7 responsible for crimes that he was unaware were actually occurring, the

8 Appeals Chamber explained that for JCE 3 liability:

9 "It is not necessary to establish that he was aware, in fact,

10 that those other acts would have occurred."

11 It was unnecessary for the Trial Chamber to determine whether the

12 accused:

13 "... was actually aware that those other criminal acts were being

14 committed; it was sufficient that their occurrence was foreseeable to him

15 and that those other crimes did in fact occur."

16 And that's Krstic appeals judgement, paragraph 150.

17 In a JCE of this nature and scale, it is legally sufficient for

18 the type of crime to be foreseeable. And I would refer Your Honours to

19 Sainovic appeals judgement, at paragraph 1089.

20 Based on the nature of the JCE and the means used to implement it

21 on the ground, the four types of JCE crimes were foreseeable to each of

22 the respondents, and they were foreseeable regardless of whether a

23 particular respondent knew about or was personally involved in the JCE 1

24 activities in that place on that day.

25 And, Your Honours, the case law makes clear that it's not

Page 762

1 necessary for the purposes of JCE 3 responsibility that an accused be

2 aware of the past occurrences of a crime for that type of crime to be

3 foreseeable to him. Stanisic/Zupljanin paragraph 627. Actual notice of

4 past crimes is not required. But each of the respondents in this case

5 did in fact get such notice of past occurrences: Prlic as president,

6 Stojic head of Department of Defence, Praljak and Petkovic at the top of

7 the HVO's Main Staff, Coric as head of the military police

8 administration, and Pusic in charge of prisoner releases and exchanges.

9 From each of their positions and from their connections with each other

10 and the other JCE members, each of them received information that serious

11 crimes against people and property - going beyond even their intended

12 crimes - were occurring in the course of their ethnic cleansing campaign.

13 And this, Your Honours, is a good place to address question 4(c)

14 from your order in relation to the Prosecution's appeal. If the Appeals

15 Chamber were to reverse the Trial Chamber's conclusions concerning the

16 murders at Sljivo's house and Dusa, would this have any impact on JCE

17 liability? And the Prosecution's answer is: No, it would not.

18 You've heard answers to this question from the Prosecution as

19 respondent in relation to some of the Defence appeals last week; this

20 connects with those submissions. Whether or not the killings of the

21 seven civilians were found to qualify as murder and whether or not any of

22 the respondents were privy to the contents of Siljeg's 28/29

23 January report, the fact remains that a clear pattern of attacks across

24 Gornji Vakuf municipality on the 18th of January and over the following

25 days followed a preconceived plan and unfolded in an atmosphere of

Page 763

1 extreme violence. And this climate of extreme violence continued

2 throughout the implementation of the JCE, showing that this was the way

3 that the common criminal purpose was intended to be implemented.

4 In Sainovic, the Appeals Chamber considers that to foresee murder

5 an accused must be aware not only of violence but of violence of such a

6 level of gravity as to make the commission of murder foreseeable. What's

7 different in this case, Your Honours, is that each of the JCE members was

8 already found to have intended not only forcible displacement and

9 persecution against Muslims, but also to murder Muslims as a JCE 1 crime.

10 The Trial Chamber distinguished attack and forced labour murders as JCE 1

11 from eviction and detention murders as JCE 3, but it certainly bears on

12 the foreseeability of the additional JCE 3 murders that murdering Muslims

13 was already an intended means of achieving the common criminal purpose.

14 So to sum up, by the time of the first JCE 3 murders, all of the

15 respondents were aware of the extreme violence that was being used to

16 achieve their common purpose, making murder a foreseeable JCE 3 crime,

17 regardless of the legal classification of the Dusa killings or who

18 received or was privy to the information contained in one of the reports

19 about them.

20 Your Honours, the Trial Chamber's JCE 3 analysis is riddled with

21 overlapping errors. The Chamber failed to properly adjudicate which of

22 the respondents were criminally responsible for more than 70 per cent of

23 the JCE 3 incidents; and for those incidents it did consider, it made

24 factual and legal errors. We ask you to correct these errors and to

25 convict the respondents as set out in our brief.

Page 764

1 Your Honours, I have a correction to transcript 14, line 5. I

2 believe I misspoke. I said "after June 1993" the JCE members were found

3 to have intended to spread terror and the other expanded crimes, and that

4 should say "from June 1993." And that's volume 4, paragraph 59.

5 Turning to ground 2 of the Prosecution's appeal. Again, this is

6 the Chamber leaving the required analysis incomplete, entering an

7 acquittal before all the charges in the indictment are adjudicated.

8 The indictment charges each of the accused under Article 7(1) and

9 Article 7(3). And when the Chamber acquitted under 7(1), its task was

10 not yet finished; it still had to consider and adjudicate whether the

11 defendants bore criminal responsibility as superiors. It did so with

12 regard to the crimes in Prozor in 1992. Having found that there was no

13 common criminal purpose at that point in time, it considered whether any

14 of the defendants were nevertheless criminally responsible under

15 alternative modes charged in the indictment. But for other crimes, when

16 it found no criminal responsibility under JCE, it stopped prematurely.

17 It entered an acquittal before addressing all of the charges in the

18 indictment.

19 We focussed on failure to punish because to be in this category

20 of incompletely adjudicated crimes, the Trial Chamber has already made

21 findings that there was no direct intent for JCE 1 and that the crimes

22 were not foreseeable to that defendant for JCE 3. The only remaining

23 mode of liability not excluded by that analysis would be Article 7(3),

24 failure to punish.

25 And we've set out in our brief the compelling facts and findings

Page 765

1 that should result in convictions for these crimes. To illustrate this

2 error, let me take you to one example.

3 The Chamber acquitted Petkovic for JCE 3 responsibility for the

4 killing of four Muslim detainees at Dretelj prison in mid-July 1993; one

5 died from dehydration and the other three were shot. The Chamber

6 reasoned that Petkovic could not foresee these murders because he was

7 only informed of them by the ICRC on 20 January 1994.

8 THE INTERPRETER: Kindly slow down for the interpretation.

9 MS. BAIG: But before entering an acquittal, the Trial Chamber

10 was required to look at the superior responsibility charges for this same

11 incident. And this is not optional, it's not discretionary. Before

12 entering an acquittal, the Trial Chamber has to adjudicate all of the

13 modes charged in the indictment; and its own findings show that a

14 conviction was warranted.

15 The Trial Chamber found that Petkovic in the HVO Main Staff was

16 the superior, he was the superior of and he had effective control over

17 the perpetrators. Volume 4, paragraphs 663 and 679.

18 And as I've just mentioned, the Trial Chamber found that he

19 received -- that he was actually informed by the ICRC letter of these

20 specific murders, albeit after they occurred.

21 And the Chamber found that Petkovic accepted the mistreatment of

22 detainees at Dretelj, including killings, and specifically that he failed

23 to take any measures against the perpetrators. That's at paragraph 816.

24 On the Chamber's own findings, all of the elements for superior

25 responsibility failure to punish were established, yet no conviction for

Page 766

1 superior responsibility was entered.

2 Instead, Petkovic has been acquitted of crimes even though the

3 Chamber found that the elements of the crimes and the mode were proven.

4 The Prosecution relies on the detailed arguments set out in our

5 appeals brief. These erroneous acquittals should be reversed. Again,

6 the Trial Chamber's primary responsibility is to fully adjudicate the

7 indictment before it; and again, they've left justice left incomplete.

8 And in ground 3, the Prosecution is again challenging a matter

9 that is incomplete. It concerns a technical oversight in the Chamber's

10 application of the cumulative convictions rule. When applying this rule,

11 the Chamber erroneously allows four sets of incidents to fall out of the

12 conviction. This error requires correction because the defendants were

13 found to have committed crimes for which no convictions are then entered.

14 Let me explain. The Chamber correctly found that the cumulative

15 convictions rule prevented the Chamber from entering convictions based on

16 the same facts for both the Article 2, grave breach of extensive

17 destruction of property, which is charged as Count 19; and the Article 3

18 crime of wanton destruction, charged as Count 20.

19 This is because only extensive destruction under Article 2

20 contains a distinct element, namely, that the property is generally

21 protected under the Geneva Conventions or is located in occupied

22 territory. All of the elements of the Article 3 wanton destruction are

23 fully reflected in the Article 2 grave breach. Consequently, when the

24 elements of both crimes are met based on the same facts, a conviction may

25 only be entered for the extensive destruction under Article 2. And you

Page 767

1 can find that analysis at volume 4, paragraphs 1264 to 1266.

2 The Chamber's analysis on this point is correct, and so far there

3 is no dispute between the parties, no error in the trial judgement.

4 The error occurs when the Trial Chamber applies the rule. In

5 relation to four sets of incidents, the Chamber overlooks that it did not

6 find criminal conduct under both Article 2 and Article 3. So in relation

7 to these incidents, it overlooks that it doesn't really have a cumulative

8 conviction situation in the first place. This ground affects only the

9 destruction crimes in relation to Muslim homes in the four Gornji Vakuf

10 villages on 18 January 1993, Muslim property in Prozor, ten mosques in

11 East Mostar, and the destruction of the Old Bridge. Each of those four

12 incidents was found to constitute the crime of wanton destruction, a

13 violation of the laws and customs of war charged under Article 3 as

14 Count 20.

15 But for Count 19, the Chamber found that the elements were not

16 met for each of these groups of incidents because the destruction did not

17 occur on occupied territory and the property was not otherwise protected

18 under the Geneva Conventions.

19 Yet at the very end of judgement, the Chamber applies the

20 cumulative conviction rule to the counts, the whole counts, as if there

21 was perfect concurrence between the facts underlying the two crimes but

22 there was not.

23 So when the Chamber declined to enter a conviction for Count 20

24 based on the cumulative convictions rule, it drops these four incidents

25 out of the convictions all together. You can find that at the

Page 768

1 disposition on pages 430 and 431 of volume 4. This was wrong. To

2 correct this error, convictions under Count 20 should be reinstated for

3 these four groups of incidents.

4 And this is where I come to Your Honours' remaining question,

5 question number 5, which relates to the Chamber's underlying legal

6 findings about whether the attacks on the villages in Gornji Vakuf

7 constituted wanton destruction or devastation not justified by military

8 necessity. This is the Article 3 violation of the laws and customs of

9 war charged as Count 20. This is the count for which the Trial Chamber

10 did not enter a conviction because of its error in the application of the

11 cumulative convictions rule.

12 In the first part of the question, you've asked the Prosecution

13 to discuss the basis for the Chamber's findings that the property

14 destruction caused during the attacks on the villages of Dusa, Hrasnica,

15 Zdrimci, and Uzricje was wanton and not justified by military necessity.

16 Your Honours, in reaching its reasonable conclusion that the

17 attacks were wanton, the Trial Chamber referred to the pattern across the

18 four villages, noting that on 18 January 1993 the HVO damaged and

19 destroyed many Muslim homes across the municipality. This was no

20 coincidence. The attacks on the four villages were found by the Chamber

21 to have unfolded in exactly the same way, beginning with the HVO first

22 attacking the villages by firing shells at Muslim homes, then the HVO

23 entered the villages, arrested the population, destroyed the remaining

24 homes, and removed the villagers. Volume 4, paragraphs 561, 704, and

25 922.

Page 769

1 Based on this total similarity in the way that the operations

2 unfolded and the crimes committed in each of the villages, the Chamber

3 concluded that they corresponded to a preconceived plan. The Chamber

4 found that the HVO attacked each of the four villages with mortar shells,

5 heavy machine-guns, and artillery. Volume 2, paragraph 357. It

6 characterised the shelling as indiscriminate. Volume 3, paragraph 711.

7 As you heard last week, the HVO also used weapons to directly

8 target Muslim civilian homes as happened in Dusa, where the HVO tank

9 fired on and deliberately damaged Sljivo's house. The Trial Chamber

10 reasonably concluded that the destruction of the homes lacked military

11 justification. This was reasonable. None of the destroyed houses were

12 military objects in and of themselves, and the Chamber took into

13 consideration that there were a few ABiH members present in the villages

14 at the times of the attacks. You can see the Chamber's analysis at

15 volume 3, paragraph 1569; and volume 4, paragraph 45. And even that in

16 one of the villages, Zdrimci, some armed Muslim men hid in houses from

17 time to time. Again, volume 3, paragraph 1569; and volume 2, paragraph

18 382. But the existence of these village defenders, particularly in light

19 of their small number and the fact that they were armed with hunting

20 rifles and other small-arms, does not offer a plausible military

21 justification for the selective destruction of Muslim property during

22 these attacks.

23 And the lack of military justification for the destructive

24 attacks on civilian homes on the 18th of January is confirmed by the

25 continuation of such destruction over the subsequent days, after the HVO

Page 770

1 had taken control of the four villages. The HVO removed the civilian

2 population, it then systematically burned Muslim property that had not

3 already been destroyed during the shelling operation, and the Trial

4 Chamber found that this was done in order to prevent the Muslims from

5 returning. Croat property was left intact. Volume 2, paragraph 414,

6 432, 456, and many others. In light of the totality of this evidence,

7 the Chamber's finding that the destruction during the attack was wanton

8 and not justified by military necessity is a reasonable one and should be

9 upheld.

10 In the second part of question 5, Your Honours, you've asked

11 whether there would be any effect if this finding were overturned on the

12 finding that the property destruction caused during the attacks on

13 several localities in the municipalities was extensive.

14 With regard to the trial judgement, the answer is no. There

15 would be no effect on the Trial Judgement because, as I have just

16 explained, as a result of the Chamber's cumulative conviction error,

17 there is presently no conviction for the crime of extensive destruction

18 on the 18th of January in the four villages. As found by the Chamber,

19 the destruction in the days following the attacks would still meet the

20 large-scale requirements for both Article 2 and Article 3 destruction

21 crimes.

22 But with regard to the Prosecution's appeal, the answer would be

23 yes. If Your Honours found error in the Chamber's conclusion that the

24 destruction was not justified by military necessity, then the only

25 remaining destruction on 18th of January would be that in Gornji Vakuf

Page 771

1 town. And, Your Honours, the Prosecution has not appealed a cumulative

2 conviction error in relation to Gornji Vakuf town.

3 Your Honours, again in ground 3 the Prosecution's appeal is

4 focussed on an incomplete adjudication. The Trial Chamber concluded that

5 each of the respondents were guilty but then failed to enter a

6 conviction. In this third way, justice has been left incomplete.

7 And with that, Your Honours, I'd conclude my submissions and hand

8 the podium over to my colleague, Ms. Goy, to discuss sentencing.

9 MS. GOY: Good morning, Your Honours.

10 By sentencing the respondents to between 10 and 25 years of

11 imprisonment, the Chamber abused its discretion. These sentences are

12 manifestly inadequate.

13 The respondents are convicted for having implemented a protracted

14 campaign of ethnic cleansing to create Croat domination in Herceg-Bosna.

15 The crimes occurred throughout a large part of BiH, covering eight

16 municipalities. The crimes were massive in scale. Tens of thousands of

17 Muslims were evicted from their homes, often expelled across the border

18 through an elaborate system, thousands were arrested and detained in

19 awful conditions, many were forced to perform dangerous labour on the

20 front line. Muslims were killed during attacks or when forced to work on

21 the front line. They were raped, they were sexually assaulted. Muslim

22 houses and mosques were destroyed, Muslim property plundered. Over

23 50.000 people were trapped in East Mostar by late August 1993. They were

24 subjected to relentless shelling and sniping.

25 The respondents played key roles in the joint criminal enterprise to

Page 772

1 create Croat domination by criminal means. They were the JCE's

2 architects and their leading implementers. In light of the gravity of

3 the crimes themselves and the key roles the respondents played in them,

4 their sentences of 10 to 25 years are so unreasonable that they

5 constitute an abuse of discretion.

6 In today's hearing, I would invite Your Honours to look at the

7 Chamber's sentencing analysis from two different perspectives. Both

8 perspectives show that the sentences imposed are too low and constitute

9 an abuse of discretion. First, I propose to look at the Chamber's own

10 conclusions on the gravity, the gravity of the crimes themselves and the

11 roles of the accused. We will see that the Chamber's conclusions are not

12 in line with the sentences it imposed; this shows that the Chamber failed

13 to give gravity adequate weight. Second, I propose to look at a number

14 of specific features of this case, features which confirm that the

15 sentences imposed are manifestly inadequate.

16 Starting with my first point. The sentences of 25 years for

17 Prlic, 20 years for Stojic, Praljak and Petkovic, 16 years for Coric and,

18 10 years for Pusic are manifestly unreasonable when one looks at the

19 Chamber's own conclusions in the sentencing part of the judgement. And

20 here we recognise that sentencing is a matter of discretion, but this

21 discretion has to be exercised in a way that gives adequate weight to the

22 gravity of the crimes themselves and the form and degree of participation

23 within the available sentencing range.

24 And the available sentencing range is up to life imprisonment.

25 The highest fixed-term sentences imposed at the ICTY and the ICTR are in

Page 773

1 the 40s, with 40 years' imprisonment imposed against Milomir Stakic and

2 47 years' imprisonment imposed by the Appeals Chamber for two accused in

3 the Butare case.

4 So this is the sentencing framework in which the Chamber has to

5 exercise its discretion. With this framework in mind, I would invite

6 Your Honours now to look with me at three aspects of the Chamber's

7 gravity analysis: One, the Chamber's conclusion on the gravity of the

8 crimes themselves; two, the Chamber's conclusion on the form of

9 responsibility; and three, the Chamber's conclusion on the degree of

10 participation.

11 Starting with the Chamber's findings on the gravity of the

12 crimes. The Trial Chamber concluded that the crimes of which the

13 respondents were found guilty were extremely serious. It said:

14 "The scale and brutality of the crimes, on the one hand, and the

15 inherent nature of the offences, on the other, show that the crimes

16 committed by the accused are extremely serious."

17 Volume 4, paragraph 1302.

18 It is clear from the rest of the judgement that this conclusion

19 is an appropriate characterisation of the crimes committed by the

20 respondents. These crimes included the eviction of tens of thousands,

21 killings during attack and while performing dangerous forced labour on

22 the front line, the detention in terrible conditions, the daily shelling

23 and shooting in the small area of East Mostar where more than 50.000

24 people were trapped from late August 1993.

25 Next, I would invite Your Honours to look at the Chamber's

Page 774

1 findings on the form of responsibility. The Chamber found all

2 respondents criminally liable as members of a joint criminal enterprise.

3 Joint criminal enterprise liability is considered one of the most serious

4 forms of responsibility. That's the Mrksic appeals judgement,

5 paragraph 407; and Krnojelac appeals judgement, paragraph 75.

6 Turning now to the Chamber's findings on the degree of

7 participation. The Chamber found all respondents played a key role, in

8 the French original "un rôle majeur", in the commission of the crimes.

9 Volume 4, paragraphs 1317, 1318 for Prlic; 1329, 1330 for Stojic; 1341,

10 1342 for Praljak; and 1354, 1355 for Petkovic; 1369, 1370 for Coric; and

11 1381 for Pusic.

12 Four of them, Prlic, Stojic, Praljak, and Petkovic, were even

13 found to be key members of the JCE. In the French original, "des membres

14 les plus importants." Volume 4, paragraphs 1315, 1328, 1340, and 1353.

15 To sum up, the Chamber found the crimes were extremely serious; it found

16 all respondents guilty under one of the most serious forms of

17 responsibility, joint criminal enterprise; and it found that Prlic,

18 Stojic, Petkovic, and Praljak were one of the most important members of

19 the JCE and that all of the respondents, including Coric and Pusic,

20 played a major role in the commission of the crimes.

21 On the basis of these conclusions, one would reasonably have

22 expected sentences in the high range of fixed-term sentences for Prlic,

23 Stojic, Petkovic, and Praljak, and at least in the upper part for Coric

24 and Pusic. This raises the question: Is there another explanation for

25 the far lower sentences imposed or can they only be explained by an abuse

Page 775

1 of discretion?

2 Can the mitigating factors explain the reduction that must have

3 occurred had the Chamber given gravity and the form and degree of

4 participation adequate weight? The answer is no.

5 As mitigating factors, the Chamber found for all respondents

6 voluntary surrender and good behaviour in detention and on provisional

7 release. Voluntary surrender and good behaviour in detention may warrant

8 some mitigation, as the Kordic appeal judgement found paragraph 1053.

9 But they cannot explain the major reduction that must have

10 occurred had the Chamber given gravity and the form and degree of

11 participation adequate weight.

12 In particular, as the Appeals Chamber found in Krajisnik, good

13 conduct in detention could only have a limited impact on the sentences in

14 light of the gravities of the crimes. That's the Krajisnik appeals

15 judgement in paragraphs 816, 817.

16 And in any event, in addition to the mitigating factors, the

17 Chamber also had to take into account the aggravating factor of abuse of

18 authority in relation to all respondents.

19 For Prlic and Petkovic, the Chamber took additional mitigating

20 factors into account. For Prlic, the Trial Chamber also considered his

21 post-conflict conduct in mitigation; however, in light of the aggravating

22 factor, this cannot reduce a sentence in the high range of fixed-term

23 sentences to 25 years' imprisonment.

24 For Petkovic the Chamber found two other mitigating factors:

25 Absence of criminal records and preference for negotiations. But the

Page 776

1 Chamber determined itself that both had limited weight, in light of the

2 gravity of the crimes and the scope of Petkovic's participation and his

3 efforts to conceal HVO responsibility. Volume 4, paragraphs 1359, 1361.

4 Thus, here as well the mitigating factors cannot explain the

5 reduction from what one could reasonably have expected to be a sentence

6 in the high range of fixed-term sentences to 20 years' imprisonment.

7 To conclude the first part of my submissions, the Chamber found

8 that the crimes were extremely serious, the respondents were responsible

9 under one of the most serious forms of responsibility, and they played

10 key roles in the commission of the crime. Prlic, Stojic, Petkovic, and

11 Praljak were even found to be most important members of the JCE.

12 In light of these findings, the Chamber's sentences imposed are

13 manifestly inadequate. These sentences cannot be explained by the

14 mitigating factors found. The sentences imposed can simply not be

15 squared with the Chamber's own conclusions. The Chamber 's own

16 conclusions are rather in line with the sentences requested by the

17 Prosecution, both at trial and now on appeal: 40 years for Prlic,

18 Stojic, Praljak, and Petkovic; 35 years for Coric; and 25 years for

19 Pusic. The only explanation for the far lower sentences imposed is that

20 the Chamber did not give adequate weight to the gravity of the crimes

21 themselves and the form and degree of participation. The only

22 explanation available is that the Chamber abused its discretion.

23 Let me now turn to the second part of my argument. The Chamber's

24 abuse of discretion becomes not only obvious when one compares its

25 conclusion on the gravity with the sentences imposed. That the sentences

Page 777

1 are manifestly inadequate is also obvious when one looks at the features

2 of the case, features that makes the crimes particularly grave. I will

3 address four of these features: The scale of the crimes; the vicious

4 siege of East Mostar; the system of expulsion through a network of

5 detention facilities; and the use of unlawful, dangerous forced labour.

6 First of all, the crimes were of a large scale. Tens of

7 thousands of Muslims were displaced, thousands were arrested and detained

8 in terrible conditions, mistreated, or killed; over 50.000 were subjected

9 to unlawful attack and terror in East Mostar.

10 Second, the vicious siege of East Mostar is another feature of

11 this case which made the crimes particularly grave. To avoid any

12 misunderstanding, Your Honour, the Prosecution is not arguing that the

13 Trial Chamber overlooked the siege, but rather, that the Chamber failed

14 to analyse its inherent gravity and to give it sufficient weight. Two

15 aspects indicate that the Chamber failed to give the siege sufficient

16 weight: The cursory way the Chamber dealt with the siege in the

17 sentencing part of the judgement and a comparison with sentences imposed

18 in other cases involving a siege.

19 The Chamber failed to sufficiently analyse the inherent gravity

20 of the siege. For ten months the HVO besieged east Mostar. The HVO

21 subjected the besieged population to relentless shelling and sniping.

22 Over 50.000 people were trapped in overcrowded East Mostar by late

23 August 1993. The HVO's shelling and sniping during the siege killed or

24 injured hundreds and caused substantial damage to homes, mosques, the

25 Old Bridge, and the only hospital. The population of East Mostar,

Page 778

1 including women, children, and elderly, lived under the constant shelling

2 and gun-fire, under the constant threat of being hit, wounded, or killed.

3 They were terrified. The HVO made the situation even worse by blocking

4 or hindering humanitarian aid.

5 The brutality of the siege is clearly shown by the BBC

6 documentary by Jeremy Bowen, who was present in East Mostar in August and

7 September 1993, during a time when all respondents were JCE members.

8 That is Exhibit P06365.

9 Bowen said that Mostar was the most devastated city, worse than

10 Sarajevo and Vukovar. That's at 34.56, through 35.05.

11 I would invite Your Honours now to watch three clips of the video

12 which show the conditions in besieged East Mostar. And for the record,

13 these are at 1.25 through 4.05; 11.20 to 12.27; and 16.36 to 17.20.

14 [Video-clip played]

15 "There are no safe places in East Mostar. You can be killed or

16 maimed at any time on any street corner. Until you see it happening,

17 it's hard to realise how quickly lives can be destroyed. Franjo

18 Pavlovic, who was born a Croat, made the mistake of going out to repair

19 some shell damage on what had started out as quiet morning. Because

20 Raima, his wife, is a Muslim, the Croats expelled them over the front

21 line into East Mostar in August. He had one chance, a fire engine, the

22 only one left on this side of Mostar, was nearby. Perhaps it could get

23 him to the hospital in time. Nothing in her life before the war had

24 prepared Mrs. Pavlovic for this. She's 53. After they married, she

25 worked as an accountant in a graphic design business. The last traces of

Page 779

1 that life disappeared when her husband was hit. The streets were empty

2 and not just because of the shelling. There is a six-hour-long day-time

3 curfew; the idea is to stop people getting hurt. The hospital was only a

4 few minutes away. Nothing is more than a few minutes away in

5 East Mostar.

6 "The doctor hardly had to look at him. Mr. Pavlovic was dead.

7 He had been killed by shrapnel in the chest. For her sake he went

8 through the motions.

9 "'You haven't examined him yet,' she said. 'Please do more.'

10 "Everything from the explosion to this had taken about ten

11 minutes. The hospital was ready for the next casualties."

12 [Video-clip played]

13 "Refugees started appearing in no man's land.

14 ...

15 "He told them to hurry and to take cover. Often the Croats start

16 shooting once they've forced Muslims out of West Mostar through this

17 section of the front line. Fatima and Salin Matic had just been thrown

18 out of their home by Croat gunmen. Mr. Matic, who is 72, managed to put

19 on three shirts and to grab two umbrellas as he left.

20 "His wife, who Is 70, was still in her nightclothes. Their

21 neighbour, 84-year-old Mrs. Almassa Humo, arrived a few minutes later.

22 'Don't sit there,' they told her, 'they could kill you.'

23 "Even if Mrs. Humo still cared, she didn't have the strength to

24 move any further on her own."

25 [Video-clip played]

Page 780

1 "The civilians know that their only hope is to help themselves,

2 to hang on until the killing ends, to survive the winter. But how do you

3 avoid pneumonia, bronchitis and worse when shells have smashed your roof.

4 These people are refugees. They live in a ruin, like thousands of others

5 in East Mostar.

6 "She can't walk. She lies in stinking clothes on a soaking bed.

7 "'What can I do? Either I die or go on living like this.'"

8 MS. GOY: With the siege of East Mostar, the implementation of

9 the JCE took up a new dimension. The JCE members added unlawful attacks on

10 civilians, terror and destruction of religious property to the criminal

11 means used to achieve their purpose.

12 The sentences imposed show that the Chamber did not give this

13 vicious siege sufficient weight.

14 Another indication that the Chamber did not give the relentless

15 shelling and sniping during the siege sufficient weight is a comparison

16 with the sentences imposed in the cases against Stanislav Galic and

17 Dragomir Milosevic. They were sentenced to life imprisonment and 29

18 years' imprisonment respectively for a shelling and sniping campaign

19 during the siege in Sarajevo.

20 And here we recognise that the cases of Galic and

21 Dragomir Milosevic are not identical to the ones of the respondents in

22 this case. But the unlawful attack on civilians and terror during the

23 siege in both Sarajevo and Mostar show enough similarities to make a

24 comparison meaningful. Galic and Dragomir Milosevic were sentenced to

25 life imprisonment and 29 years respectively for crimes committed during

Page 781

1 the siege of Sarajevo, including unlawful attacks and terror. In this

2 case, the crimes for which the respondents were convicted include

3 unlawful attacks and terror during the siege of Mostar, but the crime

4 base is much broader. It includes unlawful and dangerous forced labour,

5 even murder during forced labour and during attacks on towns and

6 villages; it includes unlawful imprisonment and detention in terrible

7 conditions; and it includes the expulsion of tens of thousands.

8 The comparison of the sentences imposed in this case with the

9 sentences of life imprisonment and 29 years in Galic and

10 Dragomir Milosevic show that the sentences imposed by this Chamber are

11 unreasonable.

12 This brings me to the third feature I would like to address: The

13 highly organised system of expelling Muslims from Croat-claimed areas and

14 BiH altogether.

15 In this case, the displacement was brought to near perfection

16 through the use of a highly organised and effective system of expulsion

17 involving a network of detention facilities. The JCE members arrested

18 and detained thousands of Muslims. They were detained in harsh

19 conditions, where they were mistreated beaten and abused. To escape the

20 horrible conditions, the detainees had to agree to leave Herceg-Bosna and

21 BiH - often with their families - once released. The releases were thus

22 made contingent upon the Muslims leaving from Croat-claimed territories.

23 The network of detention facilities was a key aspect of the joint

24 criminal enterprise. It spanned across the Croat-claimed territories.

25 It included the Heliodrom in Mostar, Dretelj, and Gabela prisons in

Page 782

1 Capljina; the Vitina Otok camp; the Vojno detention centre; Ljubuski

2 prison; and numerous others which the Chamber listed in footnote 1677 of

3 volume 4.

4 This system of expulsion through the network of detention

5 facilities was introduced at least by the end of June 1993, when all

6 respondents were JCE members; through it, the implementation of the JCE

7 became more efficient. Volume 4, paragraph 64. For example, in Stolac,

8 none of the 8.000 Muslims remained. The sentences imposed suggest that

9 the Chamber did not give this sinister system adequate weight.

10 The fourth feature that makes the crimes of this case

11 particularly grave is the widespread use of detainees for dangerous,

12 unlawful forced labour at the front line. The JCE members forced

13 prisoners of war as well as civilians, including at a very young age to

14 perform dangerous labour. One victim was just 13 years old. Volume 3,

15 paragraph 1510. For ten months between May 1993 and March 1994, the JCE

16 members forced detainees to build or repair military fortifications or

17 shelters, dig trenches, lug heavy cases of ammunition, or collect and

18 bury bodies of soldiers. Volume 3, paragraph 1514; volume 4, paragraph

19 1167.

20 The victims had to carry out forced labour under dangerous

21 conditions, some were wounded, others even killed. This was part of the

22 JCE members' plan, and all respondents played key roles in the

23 implementation of this plan for various periods of time. The Chamber

24 failed to give this widespread use of forced labour adequate weight.

25 To conclude, Your Honours, four specific features highlight the

Page 783

1 extreme seriousness of the crimes for which the respondents were

2 convicted: Their large scale; the vicious siege of East Mostar; the

3 highly organised system of expulsions; and the widespread and dangerous

4 use of detainees for unlawful forced labour. All respondents implemented

5 the plan in which these criminal means were used to achieve Croat

6 domination in Herceg-Bosna. All respondents played key roles in its

7 implementation.

8 The sentences imposed show that the Chamber cannot have given the

9 gravity of the crimes or the form and degree of participation adequate

10 weight. Had the Chamber given these factors adequate weight, it would

11 have imposed sentences of between 25 and 40 years of imprisonment, 40

12 years for Prlic, Stojic, Praljak, and Petkovic, 35 for Coric, and 25

13 years for Pusic.

14 Such sentences would have been in line with the Chamber's own

15 conclusions on the gravity of the crime and the form and degree of

16 participation of the respondents.

17 Thank you, Your Honours.

18 Unless you have any questions, this ends the Prosecution's main

19 submissions.

20 JUDGE AGIUS: Okay, thank you very much.

21 [Trial Chamber confers]

22 JUDGE AGIUS: So we will now start immediately with the responses

23 and it's your turn, Mr. Karnavas. You will have half an hour.

24 MR. KARNAVAS: Good morning, Mr. President. Good morning, Your

25 Honours.

Page 784

1 JUDGE AGIUS: And not half an hour -- yeah, yeah, half an hour.

2 MR. KARNAVAS: Good morning again. Dr. Prlic wishes to make the

3 submissions. He will be responding.

4 THE APPELLANT PRLIC: [Interpretation] Your Honours, in its reply

5 the Prosecution offers nothing new concerning its appeal, and that

6 includes today's arguments presented. Therefore, we stand by all of our

7 grounds of appeal that we based on the four grounds of appeal of the

8 Prosecution. We ask that they be rejected. In particular, it refers to

9 ground -- counts --

10 THE INTERPRETER: Interpreter's correction: Paragraphs 74 and

11 paragraphs 185 and 243.

12 THE APPELLANT PRLIC: [Interpretation] Our position needs to be

13 viewed integrally through all of the submissions, the submissions being

14 the appeal brief, response and reply, as well as the oral arguments

15 presented by our Defence team and the rest of the Defence teams.

16 You have probably noticed that the common word to appear in this

17 courtroom is "context" on the one hand and on the other "puzzle." A

18 puzzle that needs to be fit with pieces that have been devised beforehand

19 it seems. The same method was applied in the judgement based on the

20 puzzle presented by the Prosecution, at the same time neglecting

21 thousands upon thousands of documents and witnesses presented by the

22 Defence, relying at the same time on Prosecution witnesses and experts of

23 questionable credibility as shown in our appeal grounds 2 to 7. For

24 example, from day one we heard about the alleged frequent meetings

25 between Tudjman and Prlic. We can see that first occurred on the 17th of

Page 785

1 September, 1992, and the other in November 1993, 14 months later.

2 JUDGE MOLOTO: Slow down. Please slow down.

3 THE APPELLANT PRLIC: I apologise.

4 [Interpretation] That is something typical of a puzzle. As

5 regards the other -- or the second meeting, Exhibit P6454, the Prosecutor

6 missed or omitted explaining what Herceg-Bosna is, and that is something

7 I've been saying as of day one. I quote page 34:

8 "As a republic of 50-plus municipalities."

9 However, they used many other terms to picture this alleged

10 rounding of Croatian territories which in their view fit the criminal

11 intent presented. I will again quote something from page 36:

12 "As a government, last spring we brought forth conclusions and

13 proposals, including the transfer of certain brigades from certain areas

14 that would include moving the population residing in the same area."

15 I would like to continue that this was a military matter

16 concerning concentration of forces; however, it was our position that

17 everyone should remain in their respective areas. That position can be

18 seen in P2881; P4208; P8155; 1D3032, page 535; then 1D2230, page 26; and

19 1D2224.

20 It seems that --

21 MS. BAIG: Excuse me, sorry to interrupt. Your Honours, we have

22 an objection here. Prlic is replying to our response from last week, and

23 this is not properly the subject of the Prosecution's appeal today.

24 JUDGE AGIUS: And I think counsel for the Prosecution is correct.

25 Is your profession that of a lawyer, Mr. Prlic, or not?

Page 786

1 THE APPELLANT PRLIC: We agreed that I'm going to conduct --

2 JUDGE AGIUS: No, I asked you a question. Are you a lawyer by

3 profession or not?

4 THE APPELLANT PRLIC: No, I am not a lawyer by profession. I

5 used to teach on law faculty, but I was teaching political economy. And

6 if the Chamber allows me to finish, I would appreciate it.

7 JUDGE AGIUS: No, it's not a question of whether we will allow

8 you to finish. Of course we will allow you to finish, but we will allow

9 you to finish according to procedure. And this is why I'm asking you

10 whether you have been trained as a lawyer, because to me it is obvious

11 that you haven't. And since you have imposed on your lawyer your will to

12 defend yourself here now, at this most crucial juncture of the

13 proceedings, you have to also accept to observe the laws of procedure of

14 this Tribunal; otherwise, I will stop you.

15 THE APPELLANT PRLIC: I -- Mr. President --

16 JUDGE AGIUS: You can't -- let me make it clear. You have to

17 reply to what was stated today by the two counsel for the Prosecution,

18 and not for what -- to what was stated earlier on last week. And she is

19 right in her submission.

20 THE APPELLANT PRLIC: May I answer, Mr. President?

21 JUDGE AGIUS: Mm-hm.

22 THE APPELLANT PRLIC: I answered at the beginning relating to

23 what was stating here. In continuation, I'm going to speak about JCE 3

24 and how it was applied in this case. If you allow me just to continue,

25 you would see at the end that I'm going -- that my submission is going to

Page 787

1 be adequate -- I think so.

2 JUDGE AGIUS: Up to you, Mr. Prlic, but I will stop you if you do

3 not observe the rules of this Tribunal.

4 THE APPELLANT PRLIC: Thank you, Mr. President. I apologise.

5 It was mentioned today the issue of moving of population, and I

6 just want to continue on Croat language.

7 [Interpretation] This proposal was reached on the 15th of June,

8 1993, during the session of the HVO HZ HB, document 1D1669, and it was

9 put in writing on the 13th of July. I quote:

10 "The Supreme Commander Boban -- we propose to the Supreme

11 Commander Boban to urgently gather the Presidency of the HZ HB, the

12 Presidency of the HDZ, and presidents of Municipal Boards of the HDZ, in

13 order to organise a defence of the Croatian territory. The Presidency of

14 the HZ HB and the supreme commander of the HVO are therefore being asked

15 to urgently demand military assistance from the Republic of Croatia in

16 order to protect the Croats in Bosnia-Herzegovina and also to make a

17 decision on the urgent withdrawal of all military units from a particular

18 area," and so on and so forth.

19 It is presented in our ground of appeal 7. In all three contexts

20 the key word is "proposal." Why so? Immediately before these proposals

21 between the 9th and the 13th of June, Kakanj fell and Travnik as well.

22 Travnik was the capital of a Croatian majority province. According to

23 the judgement and the indictment, the same area was supposedly cleansed

24 of Muslims by Croats. However, between 30- and 40.000 Croats were

25 expelled. It is 1D1263, 1D1264, P2875, P2750.

Page 788

1 The information presented by the department of defence at a

2 session of the HVO --

3 JUDGE AGIUS: Yes, Ms. Baig.

4 MS. BAIG: Pardon me. Again, Your Honours, we're into ground 7

5 of Prlic's appeal and not properly within the scope of the response.

6 JUDGE AGIUS: And again Ms. Baig is correct, Mr. Prlic.

7 THE APPELLANT PRLIC: May I react, Mr. President?

8 JUDGE AGIUS: Yes, but I think you better focus on what is more

9 important --

10 THE APPELLANT PRLIC: Yeah, it is important --

11 JUDGE AGIUS: -- namely, this is do or die for you, and you have

12 taken the responsibility upon yourself. And instead of focussing on what

13 you should be responding today, you're focussing on other things that

14 your lawyer spoke about already last week.

15 THE APPELLANT PRLIC: This is --

16 JUDGE AGIUS: I will stop you. I mean, I can't accept anyone

17 here not to observe the Rules of Procedure and Evidence here.

18 THE APPELLANT PRLIC: I agree fully, Mr. President. I speak

19 about -- this is the reply of ground 2 of OTP appeal exactly.

20 JUDGE AGIUS: This is a reply that you prepared before even

21 coming here, Mr. Prlic, because I'm not blind.

22 THE APPELLANT PRLIC: Yeah, but this was related --

23 JUDGE AGIUS: This is a reply that you prepared before you even

24 knew what the Prosecution was going to say.

25 THE APPELLANT PRLIC: Well, Prosecution didn't say anything new.

Page 789

1 JUDGE AGIUS: Oh yeah?

2 THE APPELLANT PRLIC: May I continue?

3 JUDGE AGIUS: I -- but you are risking being stopped. If I have

4 another objection, I will stop you.

5 THE APPELLANT PRLIC: Yeah, but we are going to have objection

6 because this is the way --

7 JUDGE AGIUS: Of course -- no, no, no, you're -- we will have an

8 objection if you continue the way you have been going.

9 THE APPELLANT PRLIC: I just want to say -- to continue. You are

10 going to see exactly on ground 2, and this is important to be said here.

11 This is related to alleged responsibility based on Statute 7(3). If I'm

12 able to finish that, I think this is important; and later on I'm going to

13 speak about JCE.

14 JUDGE AGIUS: One moment.

15 [Trial Chamber confers]

16 JUDGE AGIUS: Yes, Mr. Prlic, and this is our final direction to

17 you. The Prosecution appeal is mainly -- not mainly, almost completely

18 on JCE 3 and then a question on sentencing, and you can only address

19 those two issues today. Anything else I will stop you.

20 THE APPELLANT PRLIC: Okay, I have to leave at that.

21 [Interpretation] Why was JCE applied as a type of liability with

22 a single criminal intent? That remains to be a key issue in this

23 courtroom. In our appeal we did not object to the jurisprudence of the

24 joint criminal enterprise, although that could be discussed at length,

25 but the way in which it was applied. Because even the most liberally

Page 790

1 applied variant could not be supported by the facts in this case. The

2 JCE cannot be derived only from a political intention or even a military

3 order that my colleague Ms. Nozica discussed. We have seen on last

4 Thursday that there is -- all the orders of the Main Staff. There is no

5 order for attack by the HVO in the entire period. Even an order to

6 attack would not mean anything because - according to this logic - every

7 military operation would mean culpability by the person who ordered it.

8 There must be a criminal intent, which of course can be established based

9 on circumstance --

10 JUDGE AGIUS: Mr. Prlic, I stop you. And, in any case, what you

11 are saying is not going to be taken into account because this is not

12 about JCE 3.

13 THE APPELLANT PRLIC: I'm approaching to JCE 3.

14 JUDGE AGIUS: No, no, go to JCE 3. You're -- this is not an

15 interesting, touristic adventure. Go straight to JCE 3 and to

16 sentencing, and that's it.

17 THE APPELLANT PRLIC: [Interpretation] [No interpretation] [In

18 English] ... to sentence before JCE 3. [Interpretation] The criminal

19 enterprise --

20 JUDGE AGIUS: I won't let you have it your way, Mr. Prlic.

21 THE APPELLANT PRLIC: Okay, okay, apologise -- [overlapping

22 speakers] --

23 JUDGE AGIUS: It's us five up here --

24 THE APPELLANT PRLIC: Okay, okay, okay.

25 JUDGE AGIUS: -- who conduct the orchestra. Okay? You do as we

Page 791

1 say; otherwise, I will ask you to sit down and that will be the end of

2 it.

3 THE APPELLANT PRLIC: Okay. Thank you.

4 [Interpretation] Under circumstances when the criminal enterprise

5 is construed only based on a political idea, how can we discuss JCE 3

6 when even the important elements of JCE 1 are not met? We are coming

7 close to the -- to a dangerous precedent, namely, accusing of crime

8 anyone, a president, a commander at any level, even of the smallest unit,

9 simply for sending soldiers to war, even if that commander, like me, was

10 never in the chain of command. Judgement volume 4, paragraph 106.

11 And the political idea on which the criminal intent is based is

12 the alleged Tudjman's obsession with Banovina. And whatever is said or

13 done, it's immediately dismissed as a double or duplicitous policy. Even

14 the noblest act as the unparalleled support of Croatia and Croats to the

15 BH and Muslims was, with the basic aim to reject any federalisation of

16 the country, which was a constant of all international plans.

17 For those who want to see the consistently of Tudjman's position

18 that I discussed on day one, here is what he said in his intimate circle

19 between 1992 and 1994 on different topics important to this case which

20 are contrary to the taken out of context citations that served as a basis

21 for establishing the alleged criminal intent.

22 JUDGE AGIUS: Mr. Prlic, I have to stop you again. Mr. Prlic,

23 this -- it's perhaps due to your complete lack of knowledge about law and

24 procedure, but although you purported to mention and go straight to

25 JCE 3, we are being given a lesson in history. I'm not interested in

Page 792

1 that. I'm only interested in the elements of JCE 3 as they have been

2 suggested by the Prosecution and what's your defence for that. The rest

3 you can take back home with you.

4 THE APPELLANT PRLIC: I just want to say there is no JCE 3

5 without JCE 1 and if JCE 1 --

6 JUDGE AGIUS: You could have said that already.

7 THE APPELLANT PRLIC: It is not resumed yet. I had to strengthen

8 my case. There is no JCE 3. This is direct answer on today discussion

9 by OTP. If it is possible to use my time, I will appreciate; if it is

10 not possible, I'm going to sit down and that's it. I think it is

11 important if you want to have all elements to be able to make your

12 decision. I just tried to help Bench, nothing else.

13 JUDGE AGIUS: You're certainly not helping yourself, Mr. Prlic.

14 THE APPELLANT PRLIC: Mr. President, I have taken my risk by

15 intending to say what I want to say. I'm fully aware of that, and this

16 20 minutes doesn't mean anything. But if you decide another way, I have

17 no other possibility than to accept it.

18 JUDGE AGIUS: Go ahead, let's...

19 JUDGE MERON: Mr. Prlic, the President has been trying to help

20 you and he has suggested that you would have been much better served in

21 your interests had you asked you lawyer to speak for you.

22 THE APPELLANT PRLIC: Okay.

23 JUDGE MERON: You still have a few minutes left and if I were you

24 I would give five minutes or so to your lawyer to present your case,

25 because you are not doing any good to yourself --

Page 793

1 THE APPELLANT PRLIC: Thank you.

2 JUDGE MERON: -- Mr. President has pointed out.

3 THE APPELLANT PRLIC: Thank you.

4 JUDGE AGIUS: Mr. Karnavas, don't tell me have you not prepared

5 yourself.

6 MR. KARNAVAS: Mr. President, 35 years of practicing law I have

7 never come to court unprepared. I am prepared. May I ask how much time

8 do we have left?

9 JUDGE AGIUS: [Microphone not activated]

10 THE INTERPRETER: Microphone, please, for the President.

11 JUDGE AGIUS: You have 12 or 13 minutes.

12 MR. KARNAVAS: Since I won't be able to use all my 13 minutes

13 before we take a break, could we take a break now -- it doesn't matter to

14 me. I can go now and go through the 13 minutes or take a break and --

15 whichever you wish, Your Honours.

16 [Trial Chamber confers]

17 JUDGE AGIUS: Go ahead now.

18 MR. KARNAVAS: Mr. President, Your Honours, I will be very brief.

19 The Prosecution today said a couple of interesting things.

20 First, they said that the scale of omissions was unparalleled -- I think

21 it was unprecedented and unacceptable. They also said the Trial Chamber

22 is responsible to fully adjudicate the indictment. I could not agree

23 more. But are they not also responsible for assessing all of the

24 evidence? Are they also not responsible to issue reasoned decisions?

25 Now if you go through their brief, because -- and they mentioned this

Page 794

1 throughout today's presentation, you will see that they occasionally say

2 the Chamber unduly limited the scope of the evidence it deemed relevant,

3 it erred by compartmentalising and analysing the evidence, that the

4 Chamber analysed the evidence in isolation, that the Chamber must

5 consider all evidence presented to it and assess and weigh the evidence

6 in its totality and in context. This is in their brief and this is what

7 they were saying today, that for some reason - for some reason - when the

8 Trial Chamber came to this part of the judgement they sort of stopped.

9 The implication being with everything else they were doing a great job,

10 but with this part they just simply failed to analyse properly, they

11 compartmentalised. They didn't take into account all of the evidence,

12 they failed to consider its own findings and relevant evidence that

13 provided context to the incidents, they limited their consideration of

14 evidence, and so on.

15 And I ask: Is that not what we have been saying all along? And

16 is that not what we believe runs throughout - permeates throughout - this

17 entire judgement?

18 The Prosecution says today: Well, Dr. Jadranko Prlic and the

19 others committed all these other crimes, they were foreseeable, and the

20 Trial Chamber simply failed to look at all of the evidence. For somehow

21 they were compartmentalising. They didn't do their job. They didn't

22 properly assess.

23 We submit, Your Honours, that that has merit, their argument has

24 merit, as our argument that in looking at all of the evidence, the Trial

25 Chamber failed or cherry-picked what it believed, you know, was relevant

Page 795

1 to their version of the events, to where they wanted to go. So we don't

2 accept the idea that somehow the Trial Chamber failed to make a proper

3 assessment with respect to JCE 3. I think they were at a loss because

4 there was a lot of evidence. They were at a loss because the Prosecution

5 had an overly broad indictment where they tried to charge anything and

6 everything for everything to the accused as if they're omnipresent and

7 omnipotent.

8 If you look at our submissions concerning the sentencing, Your

9 Honours, and I believe they're in - one moment - they're in

10 paragraphs 185 to 248 of our response. We deal with the issue of the

11 sentence, because they say the sentence was relatively low in comparison

12 to the gravity of the events and what have you. We don't minimise the

13 human tragedy in this case. We don't minimise the fact that there was a

14 lot of destruction, loss of human life, inhumane treatment. But if you

15 look at those paragraphs, in those paragraphs of our response, we go

16 chapter and verse through the responsibilities and the powers of

17 Dr. Prlic. We tried to explain to the Appeals Chamber how the HZ HB

18 functioned, what were its responsibilities, why it was created, and what

19 it was intending to do. It doesn't mean that crimes were not committed,

20 but the whole purpose of a trial is to determine who is responsible for

21 the crimes, not who is available to be tried.

22 We submit, Your Honour, that throughout this trial, the Trial

23 Chamber erred -as the Prosecution has said not just for their part but

24 for the entire trial, the entire judgement - they failed to assess the

25 evidence properly. And we submit that as a matter of due process,

Page 796

1 equality of arms -- because we believe equality of arms extends not just

2 to the resources but also to the manner in which the case is tried and

3 the evidence is assessed. They come here today and they say: Give us

4 justice because the Trial Chamber did not assess the evidence properly;

5 we say the same. We say look at the evidence critically. Look at what

6 we've cited. They continually use the Mladic diaries. They use it in --

7 they didn't say it today but they used it in their response. We say look

8 at chapter -- look at ground 5 of our appeal, look at ground 5 of our

9 reply. And therein you will see that the Trial Chamber - despite

10 Judge Antonetti's reasoned opinion or reasoned decision or his analysis -

11 that 38 out of 40 excerpts of the Mladic diaries should be assessed, this

12 is what we submitted, 38 out of 40. It wasn't the Trial Chamber, as my

13 good friend Mr. Stringer said, but it was the minority -- the majority

14 that said no, they cannot come in. The Prosecution comes in today and

15 say: The Trial Chamber looked at things out of context with respect to

16 JCE 3. We say they looked out of context with regard to JCE 1 and with

17 respect to the entire Defence case.

18 And so what's good for the goose is good for the gander. We say:

19 Look at everything, not just some of it.

20 I don't want to take up your time because you have the briefs.

21 The briefs, in my humble submission, are very well written. They are

22 very well -- we cite all the relevant authority. And we present

23 everything that we think is necessary for your consideration. The

24 Defence -- the Prosecution says: Well, for some reason, the Trial

25 Chamber failed. We submit for some reason the majority, in particular,

Page 797

1 failed because they approached this case with a determination -- with a

2 destination in mind, and here is where I want to end.

3 If I could have the one slide, Suzana, up.

4 The two slides I want to say, because I don't want to give the

5 impression that I'm suggesting that the Judges were unfair, but I do make

6 the suggestion - as I believe Mr. Khan did - that at some point the

7 Judges, especially the majority, might have been looking at the evidence

8 from a particular perspective because after all you will see -- this is

9 on the web site. If I could look at the other one. This is on the

10 official web site of the ICTY and this was on the web site or flyers to

11 this effect were already in existence prior to the judgement. The

12 republic's strategic position made it subject to both Serbia and Croatia

13 attempting to assert dominance --

14 MS. BAIG: Pardon me, Mr. Karnavas.

15 MR. KARNAVAS: -- over large chunks --

16 JUDGE AGIUS: One moment.

17 Yes.

18 MS. BAIG: Mr. Karnavas, you appear to be going again into your

19 grounds of appeal.

20 Your Honours, we have an objection again on this matter.

21 MR. KARNAVAS: If I may respond, Your Honour.

22 JUDGE AGIUS: Yes.

23 MR. KARNAVAS: If I may respond.

24 JUDGE AGIUS: Yes, Mr. --

25 MR. KARNAVAS: The Prosecution was the one that was -- been

Page 798

1 complaining all morning that for some reason when it came to their

2 evidence on JCE 3, they totally ignored and compartmentalised. I'm

3 entitled to show that they did the same thing with us, and this is a good

4 example --

5 JUDGE AGIUS: It is --

6 MR. KARNAVAS: -- and I know it may be embarrassing for the Court

7 to be looking at this, but we suggest that when it came to assessing the

8 evidence for the Defence, whether it was regard to JCE 3 or otherwise,

9 Mr. President --

10 JUDGE AGIUS: Two wrongs do not make a right.

11 You have already made your point as to how you were treated by

12 the first Court, by the Trial Chamber. You had -- you had a good two

13 hours, one of which was stolen away from you by your client. But what we

14 expect from you today is to tell us whether Ms. Baig and her colleague

15 are correct in their submission or not.

16 MR. KARNAVAS: Well, I find it hard --

17 JUDGE AGIUS: If you tell us: We were treated like that as well,

18 you are indirectly telling us that they were right, they were ignored by

19 the Trial Chamber.

20 MR. KARNAVAS: Well, I find it hard to believe, Your Honour, that

21 the Prosecution would have the temerity to suggest that the Trial Chamber

22 was only unfair to them and not unfair to the Defence. Is it possible --

23 is it credible to suggest that only when it came to certain counts of the

24 JCE 3, the Trial Chamber adopted this compartmentalisation process, they

25 decided not to assess the evidence properly, they did not look at

Page 799

1 everything that was available? We suggest that that is not the case, but

2 we do suggest that throughout the trial that is what happened to all of

3 the accused; and that's why we ended up with the result that we ended.

4 What Dr. Prlic was trying to say is with respect to JCE 3 that

5 was mentioned today, that if you look at his role and his

6 responsibilities and his functions and if you look at all of the facts

7 that were presented, you will see that you don't get to JCE 1; and if you

8 can't get to JCE 1, you can't get to JCE 3. So for us at this stage to

9 try to counter the points on JCE 3 that they're making today, we find

10 somewhat ludicrous, if you will, because we do not accept the notion that

11 Dr. Prlic was engaged in a joint criminal enterprise and was involved in

12 any capacity to any of those events and is not responsible for any of the

13 events. And therefore, it is difficult to go and argue point by point on

14 whether the Trial Chamber should or should not have found Dr. Jadranko

15 Prlic guilty of JCE 3 with respect to certain events. You have to look

16 at his responsibilities and you have to look at the Trial Chamber's

17 analysis of the facts and their conclusions that there was this

18 overarching JCE, which is why I believe my client was trying to address

19 some of the issues with respect to Tudjman.

20 We appreciate the time that you have given to us to make our

21 submissions, we apologise for any inconvenience, and we are certainly

22 grateful to your patience today.

23 JUDGE AGIUS: Thank you. We will have half an hour -- actually,

24 we will start at quarter to 12.00.

25 --- Recess taken at 11.10 a.m.

Page 800

1 --- On resuming at 11.44 a.m.

2 JUDGE AGIUS: Yes, Defence for Mr. Stojic. You have 30 minutes.

3 MS. NOZICA: [Interpretation] Thank you, Your Honours. Our reply

4 to the appeal by the Prosecution and we have with us our consultant

5 Aidan Ellis.

6 MR. ELLIS: In response to the Prosecution appeal, we don't

7 assert that this trial judgement is perfect. How could we, Your Honours,

8 when we've asserted so many errors in it ourselves? Your Honours will

9 have noted already from our response brief that where points are clear

10 that there are errors, we've tried to concede the points. For example,

11 in paragraphs 145 or 146 of our response brief. But despite those

12 errors, Your Honours, we say that the Prosecution failed to eliminate any

13 reasonable doubt of Stojic's guilt in relation to grounds 1, 2, and

14 aspects of ground 3; and further, that they failed to show that the

15 20-year sentence imposed on Stojic is unjust and plainly unreasonable.

16 We propose to focus today on grounds 1 and ground 4, as the Prosecution

17 did. For the detail, of course, we stand by every point in our written

18 submissions.

19 And, Your Honours, in those written submissions we deal with each

20 head of the Prosecution's ground 1 in relation to JCE 3. But the

21 overarching reason why all of those heads of ground 1 should be dismissed

22 is a simple one. When the correct legal standard is applied to the Trial

23 Chamber's findings, the Prosecution has failed to eliminate reasonable

24 doubt that the deviatory crimes were foreseeable to Stojic. And

25 therefore, the Trial Chamber did not err in entering acquittals and no

Page 801

1 new convictions should be entered.

2 Your Honours, I'll deal with the law briefly because it seems

3 there's no real distance between the Prosecution and the Defence on the

4 key issue. The Prosecution submit that the Trial Chamber erred by

5 applying a probability standard rather than a possibility standard, and

6 it's right that the test defined by the Appeals Chamber is not one of

7 probability; although we do say it's not quite accurately described as a

8 test of mere probability either. It's important in our submission to

9 preserve a meaningful test of foreseeability, and the reason why it's

10 important is that convicting the accused pursuant to JCE 3 means

11 convicting them of crimes that they did not intend and which fell outside

12 the scope of the common purpose. That's why a meaningful foreseeability

13 threshold is required, otherwise the result is the involvement in a

14 common criminal purpose could lead to an open-ended liability for crimes

15 committed thereafter. And we say the test defined in the Appeals

16 Chamber's jurisprudence is a meaningful threshold.

17 The Prosecution cited this morning to Sainovic, to paragraph 18

18 of the Karadzic JCE 3 foreseeability decision. And the tests cited in

19 those cases isn't one of mere possibility; it's whether the possibility

20 that the crime could be committed is sufficiently substantial as to be

21 foreseeable to the accused, the accused as an individual. That nuance,

22 that subtlety in the reasoning isn't caught by just describing this as a

23 possibility test. There is a spectrum of likelihood. On that spectrum,

24 the test isn't as high as probability, but it's not as low as mere

25 possibility either and it's not caught by implausibility remote

Page 802

1 scenarios.

2 We would highlight from the many detailed submissions in our

3 brief two points today. First, that considering relevant

4 location-specific factors should lead the Appeals Chamber to dismiss all

5 aspects of ground 1; and second, that the documents relied on by the

6 Prosecution are insufficient in any event to eliminate doubt as to

7 Stojic's guilt. For clarity, when I refer to "incidents," Your Honours,

8 I'm using the language and the numbering used by the Prosecution at

9 tables 53 -- the table on page 53 to 57 of their appeal brief.

10 And to deal first with location-specific factors. We say they

11 are important in this case because of the scale of the crime base

12 considered in the indictment. Where there are so many different

13 locations and where crimes are committed over a period of so many month,

14 we say that what is foreseeable to one accused in one location at one

15 time is not necessarily foreseeable to them many months later, in a

16 distant location. And it appears again there's a measure of agreement

17 between the parties here. Paragraph 12 of the Prosecution consolidated

18 reply at least accepts that location-specific factors are not irrelevant.

19 And what's important about them is not to suggest that Stojic must make a

20 contribution to the crimes in each municipality. We know that's not the

21 point. The point about location-specific factors is that they identify

22 the knowledge that the accused have, knowledge of particular

23 vulnerabilities of civilian populations, knowledge of particular

24 propensities of particular units. And the problem, we say, with this

25 judgement in relation to JCE 3 is that there are very limited factual

Page 803

1 findings about Stojic's knowledge in many of the locations for which the

2 Prosecution invite Your Honours to enter new convictions.

3 Take the example of Stolac, with an apology if my pronunciation

4 is wrong Your Honours. There the Prosecution invites to you enter JCE 3

5 convictions for two incidents of murder, one appropriation of property.

6 That's incidents 5, 6, and 26. What findings then did the Trial Chamber

7 make about Stojic's role in crimes in that municipality or his personal

8 knowledge of operations there? None, we say, none whatsoever. And in

9 those circumstances, we say it's untenable to enter new convictions in

10 relation to that municipality.

11 And there are many other examples, Your Honours. In Prozor

12 municipality, where the Prosecution invite you to enter six new

13 convictions, incidents 1, 14 through 16, 21, and 24. In the section of

14 the judgement addressing Stojic's responsibility municipality by

15 municipality, it's only paragraph 329 of volume 4 that has anything to

16 say about Prozor. And Your Honours will recall that factual finding from

17 the very final slide that we displayed in the course of our reply

18 submissions on Tuesday. It's the occasion when a particular report,

19 P3418, was found to have been received by two of the defendants but the

20 Trial Chamber managed to reach opposite findings in respect of their

21 knowledge on the basis of that document. Contrast paragraph 329 and

22 paragraph 799 of volume 4.

23 Apart from that unreasonable finding, no other findings about

24 Stojic's knowledge or the circumstances in Prozor at the time when the

25 deviatory crimes occur. Very limited factual findings also in relation

Page 804

1 to Vares, where taking volume 4, paragraph 380 at its highest - and of

2 course Stojic has appealed those findings - but taken at their highest,

3 his involvement comes days after the crimes were committed.

4 And here is where we really part company with the Prosecution

5 because it's said today that Your Honours can safely enter new

6 convictions on the new JCE counts without requiring extensive appellate

7 fact-finding, that you can move straight from the general findings about

8 contextual factors to enter convictions against Stojic. We say that's

9 wrong, Your Honours. We say that that would require Your Honours at

10 least to consider the factual position in relation to knowledge of

11 circumstances in each of the municipalities concerned. And on that, the

12 Trial Chamber's judgement simply does not assist, Your Honours. It

13 doesn't leave behind the necessary building blocks, the factual

14 foundations and findings, on which Your Honours could build new

15 convictions. And we would say that reflects limited factual evidence in

16 the record about Stojic's knowledge of circumstances in those

17 municipalities.

18 Absent those location-specific factors, the Prosecution cannot

19 establish beyond reasonable doubt that deviatory crimes were foreseeable

20 to Stojic, and that should be fatal to ground 1 of the appeal on its own.

21 But in any event, Your Honours, my second point. The documents and

22 findings relied on are not sufficient to establish that the deviatory

23 crimes, that the possibility that they might occur, were sufficiently

24 substantial as to be foreseeable to Stojic.

25 There is one error that we say crops up throughout the

Page 805

1 Prosecution's submissions, and it's the repeated reliance on documents

2 that were simply sent to the Defence Department generally as evidence

3 that proves beyond reasonable doubt that Stojic knew about the content of

4 those documents. That does not necessarily follow, Your Honours. The

5 Department of Defence was not an insubstantial administrative body. The

6 Trial Chamber found that it had six sectors: Main Staff, civil

7 protection, security, health, ethics and morals, and procurement. It was

8 administered through various offices, and each of those sectors was

9 headed by an assistant chief with their own responsibilities for the work

10 of that sector. This is from volume 1, paragraph 540.

11 And, Your Honour, there was evidence about what was supposed to

12 happen when a document was actually received by the Defence Department.

13 There was evidence that the Defence Department stamped documents on

14 receipt. That's not surprising. Most administrative bodies do something

15 similar, but it appears in the transcript at 36247, lines 3 to 21.

16 Your Honours, I will admit that on occasion I struggled with the

17 different stamps applied to the original documents in this case, but I

18 commend P1880 to Your Honours as an example of a document bearing the

19 stamp to show it was received by the Defence Department. And

20 Your Honours will see that the stamp simply says "Defence Department

21 Mostar." Nothing else on it to indicate, for example, that it's gone to

22 a different branch, like the SIS, as we see on some documents.

23 But in relation to many of the documents that the Prosecution

24 relies on, there's no evidence or finding that they were actually seen by

25 Stojic. Take paragraph 24 of the Prosecution reply which introduces

Page 806

1 P1915 as evidence that the Defence Department were informed of the

2 preparations for operations in Jablanica in April 1993. No stamp on that

3 document to indicate it was received by the Defence Department. The

4 stamp on the original that Your Honours will see relates to the

5 Main Staff; that's presumably why the Trial Chamber specifically found it

6 was received by the Main Staff. Volume 4, paragraph 714. But no

7 equivalent finding that the Defence Department saw it. In fact, the

8 Trial Chamber established - it's volume 4, paragraph 441 - that Stojic

9 was informed of HVO operations in Jablanica after they had taken place,

10 which is obviously inconsistent with the reliance now placed on P1915.

11 And there are many other documents cited in the appeal brief and the

12 reply brief of the Prosecution, where the same comments would apply.

13 P4161, P648, P4177, and P2063, to give only four examples, not addressed

14 to Stojic personally, not bearing Stojic's Department of Defence stamp,

15 and no other way to establish beyond doubt that they were received by

16 him. No witness to testify that they passed the document to him.

17 The Defence tried to assist the Tribunal by locating the Defence

18 Department register, which would have conclusively listed all of these

19 documents that were received by that department; but unfortunately the

20 register could not be found. See 2D1399 for our efforts to find that

21 document.

22 Your Honour, the result of the absence of that document is that

23 there is doubt that Stojic ever personally saw many of the documents

24 relied on throughout the Prosecution appeal brief. For reasons of time,

25 I'll move swiftly through this, Your Honours, but we also assert in our

Page 807

1 response brief that a number of the documents that the Prosecution rely

2 on turn out to be dated after a number of the incidents on which they

3 seek convictions. In relation to murder or wilful killing in detention,

4 amongst the documents cited by the Prosecution at P4352 and P4161, both

5 dated August 1993. But the Prosecution is inviting Your Honours to enter

6 convictions for killings in detentions that begin with incident 2 in

7 April 1993, four months earlier. In fact, only part of one incident was

8 committed after the date of P4352.

9 So the submission on this part of ground 1 comes down to this.

10 In relation to each of the deviatory crimes the Prosecution rely on a

11 small number of documents to try to prove that Stojic was on notice that

12 those crimes might occur. But once Your Honours exclude those documents

13 that post-date the incidents, once you exclude those documents which it

14 cannot be established that Stojic saw, once -- we hope Your Honours will

15 also exclude the evidence in relation to P1351 and Gornji Vakuf for the

16 reasons given last week. We say what remains is wholly insufficient to

17 eliminate reasonable doubt that the deviatory crimes were foreseeable to

18 Stojic. And so ground 1 of the Prosecution appeal should be dismissed.

19 Your Honours, I move now to ground 4, sentence.

20 At the start of this appeal hearing, Your Honour, the Presiding

21 Judge, remind the parties that these appeals are not a trial de novo,

22 that the parties must refrain from repeating their cases which were

23 presented at trial, but the Prosecution appeal against sentence is

24 exactly that; it's a repetition of their case which was presented at

25 trial. The Prosecution continues its pursuit of a 40-year sentence for

Page 808

1 Stojic, exactly the sentence it sought at trial. And as we've pointed

2 out in paragraph 182 of our response brief, many of the Prosecution's

3 written submissions - indeed many of the oral submissions today - bear

4 more than a passing resemblance to the final trial brief or the closing

5 trial arguments.

6 We say the Prosecution failed to identify error in the Chamber's

7 approach to sentencing, that the Trial Chamber didn't impose the sentence

8 that they asked for does not establish error. Your Honours, we say the

9 test was set down for similar Prosecution appeal against sentence in

10 Galic, with the majority concluding at paragraphs 455 and 456 that the

11 Appeal Chamber should only intervene where the Trial Chamber sentence was

12 so unreasonable or plainly unjust that it's able to infer that the Trial

13 Chamber failed to exercise its discretion properly or - in more

14 descriptive terms - where it was taken from the wrong shelf. That's a

15 high threshold, Your Honours, and rightly so. Trial Chambers have a

16 broad discretion on sentencing.

17 This Trial Chamber had the opportunity to hear the evidence in

18 this case over a period of years, including seeing the video that we were

19 shown today of East Mostar, including hearing directly from the victims

20 of these crimes. Whatever view Your Honours take of the quality of the

21 legal reasoning in relation to the JCE or, we say, the absence of legal

22 reasoning, in relation to the crime base, the Trial Chamber chronicled

23 the crimes painstakingly across thousands of pages of a judgement.

24 Against that background, the Chamber's approach to the gravity of the

25 crimes can't be judged solely in relation to the sentencing section of

Page 809

1 the judgement; it should be weighed against all the pages previously. We

2 say it can't properly be dismissed as cursory. Do the sentences imposed

3 by this Tribunal in comparable cases compel a conclusion that a 20-year

4 sentence for Stojic would be unjust or plainly unreasonable? They do

5 not, in our submission. Dealing with comparable cases are always

6 problematic. No two cases are truly alike. No comparison will bind

7 Your Honours. And there's another danger that the Defence are conscious

8 of because as soon as I start to compare cases, it would be very easy to

9 suggest that I'm trying to minimise the crimes or trying to minimise our

10 responsibility. Your Honours, that's not my intention. Seeing the

11 videos that the Prosecution showed of East Mostar today hits us even

12 after reading the evidence in this case over so many years; it cannot

13 fail but be deeply affecting.

14 On Stojic's behalf counsel began our submissions last week by

15 extending our sincerest condolences to all the victims of the war in

16 former Yugoslavia, and in so doing he was echoing what Stojic himself

17 said in his statement to the Trial Chamber at the end of closing

18 arguments. He said:

19 "From the bottom of my heart, I would like to say that I

20 sympathise. I feel compassion for those people ... and," he continued,

21 "especially the Muslim victims of that war."

22 It's not our intention, nor his intention, to minimise that

23 suffering. The reference is T52964, beginning at line 25.

24 But we do need to look at past cases in order to try and set out

25 what the range of reasonable sentences might be. And we do maintain, as

Page 810

1 in paragraphs 210 and 211 of our response, that Djordjevic and Sainovic

2 and relevant. Why those cases? Because they're large JCE cases

3 concerning the expulsion of civilian population on ethnic grounds,

4 hundreds of thousands of civilians were displaced. They can't be

5 dismissed as smaller cases. There was no or extremely limited personal

6 mitigation in those cases. Rather than co-operate with the Tribunal as

7 Stojic did, Djordjevic evaded arrest for four years which prolonged the

8 victims' distress. The sentences in --

9 JUDGE AGIUS: We're looking at the clock. You have got another

10 ten minutes.

11 MR. ELLIS: I'm grateful, Your Honour.

12 The sentences imposed in those cases after appeal ranged from 14

13 to 22 years, and insofar as that comparison helps in drawing a range -- a

14 bracket of reasonable sentences, they don't suggest that the sentences in

15 this case come from the wrong shelf. The Prosecution argue again today

16 that the Chamber should impose a higher sentence to take account of the

17 gravity of the siege of East Mostar. And in so doing, the Prosecution

18 relied specifically in its reply on the level of criminality reflected in

19 a nine-month campaign of sniping, shelling, and terror. A nine-month

20 campaign, Your Honours, because the siege of East Mostar on the Chamber's

21 findings began in June 1993 an ended in March 1994. But by that time,

22 Stojic was no longer the head of the Defence Department. He left the

23 Defence Department in mid-November 1993. The Trial Chamber say the 15th

24 of November, the Stojic Defence say 10th of November, but for this point

25 it matters not. There was no evidence that he remained a member of the

Page 811

1 JCE after that point in November 1993. His responsibility stops at that

2 point halfway through the siege of East Mostar. His sentence cannot be

3 based on level of criminality reflected by a nine-month siege, and that's

4 even if Your Honours uphold his conviction for the unlawful infliction of

5 terror on a civilian population, which we invite Your Honours to overturn

6 in the absence of a reasoned finding as to specific intent.

7 In relying on Galic this morning, my learned friends opposite

8 acknowledge that there are differences between that case and this one,

9 and there are important differences. According to Prosecution

10 submissions, the siege of Sarajevo affected about 300.000 civilians. And

11 Galic's responsibility for that siege lasted for a period of 23 months,

12 significantly longer, significantly more civilians than this case. So

13 the comparison offered by the Prosecution does not assist in showing that

14 this sentence in this case was wrong.

15 Your Honour, does the 40-year sentence proposed by the

16 Prosecution fit better? Well, we've tried to set out in our response

17 brief at paragraph 215 the cases in which the Trial Chamber has imposed

18 similar sentences. They don't fit with this case for the reasons given

19 in that brief, but I see that we're out of date now.

20 I see that the Trial Chamber has now passed sentence on Karadzic,

21 and he was sentenced to a 40-year term, the very term that the

22 Prosecution seek in relation to Stojic. He was found to have

23 significantly contributed to a JCE to remove Muslims and Croats from

24 Bosnian Serb-claimed territory, but that's only one aspect of that case.

25 He was also the driving force behind an additional common purpose to take

Page 812

1 UN personnel hostage. He also significantly contributed to the shelling

2 of Sarajevo, not for months, but for three and a half years. He also

3 significantly contributed to the Srebrenica genocide, which resulted in

4 the death of more than 5.000 men and the transfer of tens of thousands of

5 women, children, and elderly men.

6 Your Honours, Stojic's sentence doesn't belong on the same wall

7 as Karadzic, let alone the same shelf.

8 The increased sentence sought by the Prosecution is dramatic. If

9 the Prosecution appeal is granted, the full term would not expire until

10 2047, at which point - if alive - Stojic would be 92 years old. We say a

11 sentence of that severity is not warranted. We say the Prosecution have

12 failed to show that the sentence was taken from the wrong shelf, failed

13 to show it was so unreasonable and plainly unjust that it is safe to

14 infer that the Trial Chamber failed to exercise its discretion. And we

15 commend to Your Honours' attention in fact our grounds 56.2 in relation

16 to double counting and 57 in relation to time spent on provisional

17 release with significant restrictions on his liberty.

18 But, Your Honours, this is our final chance to say something to

19 the Bench. We listened closely this morning to the Prosecution say that

20 there were unprecedented -- unprecedented omissions in this judgement and

21 that there were failures to assess all of the evidence in the case.

22 Your Honours, those errors are pervasive. It's the point my learned

23 friend Mr. Karnavas was making I think in the end of his submissions.

24 Those errors are pervasive. They don't stop where the Prosecution appeal

25 finishes. They're symptoms of exactly the same problem that we

Page 815

1 law since his responsibility has not been established. The conviction of

2 Mr. Praljak is based on erroneous conclusions, mischaracterised facts, a

3 conclusion which the Trial Chamber reached in which -- after proceedings

4 in which the right of the accused on Article 21 of the Statute was

5 breached. The appeal of the Prosecution should be entirely rejected as

6 well as the arguments -- all the arguments presented by the Prosecution.

7 Thank you.

8 JUDGE AGIUS: Okay. Are you okay if we take Petkovic? Yeah, all

9 right.

10 Defence team for Mr. Petkovic. Yes, Defence team for

11 Mr. Petkovic, you can start. Thank you. And you have 30 minutes.

12 MS. ALABURIC: [Interpretation] Thank you, Your Honour. We're

13 going to try to use our half an hour in the manner we believe to be the

14 best.

15 For a start, I will agree completely with my colleagues from the

16 Prosecution when they said that the judgement is inexplicably

17 inconsistent. I know for a fact that they have spent days and weeks

18 trying to get a grip on what was going on with all 211 incidents and

19 which of the accused was convicted or not convicted for each of one of

20 those incidents.

21 At the start, I'm going talk about appeal ground 2 or the failure

22 by the Chamber to decide the responsibility of the accused according to

23 command responsibility after establishing that there was no

24 responsibility under JCE 3. Slide 2, slide number 2, you can see what

25 the Prosecutor says. I'm going to deal with the request to overturn the

Page 816

1 judgement and convict my client according -- to counts according to

2 command responsibility, and then I'm going to say a few words about

3 alternative proposals for the Appeals Chamber to overturn this

4 judgement -- or actually, to remand this issue to the Trial Chamber for

5 reconsideration.

6 As far as the acquittal and conviction according to command

7 responsibility, Your Honours, I would like to say that we are aware that

8 I'm embarking on a topic in which this Appeals Chamber holds different

9 views. We know that it's not wise to deal with topics on which there is

10 disagreement among the members of the Trial Chamber, but we will still do

11 that.

12 Slide number 3 is a brief explanation that we require for our

13 submission because in separate opinions of Judge Pocar in the Gotovina

14 case as well as in a series of other cases at this Tribunal, also at the

15 European Court, the position was that an acquittal must not be reversed

16 or overturned, regardless of the discretion of the Chamber to do so, if

17 thereby they deny the accused's right to an appeal. Since the Statute or

18 the Rules of this Court do not foresee an appeal to an appeal decision,

19 then it's a question whether in such a case the right of our accused

20 would be violated, i.e., for a higher court to review a judgement reached

21 in such a way.

22 THE INTERPRETER: Could the speaker please speak -- slow down.

23 JUDGE AGIUS: Slow down a little bit. Please slow down.

24 MS. ALABURIC: [Interpretation] I apologise. I will do.

25 In view of the fact that I'm also focussed on human rights, this

Page 817

1 standpoint is very dear to me. I would like to point out what the

2 practice was in the former Yugoslavia 50 years ago. The following slides

3 show an excerpt on the Law on Criminal Procedure of the SFRY. The year

4 is 1986, but this is a law from 1977 that has been revised. And you can

5 see from this text that this law during the time of Yugoslavia, which was

6 a single-party Communist totalitarian country, accused had the right to

7 appeal against the verdict of a court in the second instance and is ruled

8 on in the third instances only in the following cases. If the court in

9 the second instance modified a verdict of acquittal of the court in the

10 first instance and pronounced a verdict finding the accused guilty, all

11 of this was very well conceived. The Law on Criminal Procedure today of

12 the Republic of Croatia contains the same wording. This is Article 490

13 of the law.

14 Also, this is contained in the regulations of Bosnia and

15 Herzegovina. They included this right at the beginning of the 1990s

16 because all the countries created from the former Yugoslavia inherited

17 the Law on Criminal Procedure, and this provision is contained in the

18 criminal procedure law of Bosnia and Herzegovina at the moment.

19 In our countries, had this trial been conducted in Bosnia and

20 Herzegovina and Croatia, our appeal -- our appellants would be guaranteed

21 the right not to have an acquittal turned into a conviction without

22 assuring the adequate protection, meaning the appeal to -- the right to

23 appeal and for a higher court to review the legality of a decision by a

24 higher court.

25 What we expected from you, Your Honours, was to provide equal

Page 818

1 rights to our accused before this Tribunal as the ones they would have

2 had, had they been tried according to the laws of the former state which

3 was a single-party Communist totalitarian state.

4 As for our alternative request for the case to be -- to be

5 re-tried, here we have explicitly heard of one crime that my client is

6 being charged with in that context, that is the murder of six detainees

7 in Dretelj. My colleague Ms. Baig mentioned four such crimes. I think

8 that this was an error because our records indicate that there was six

9 killings.

10 In the column we have tried to show what the Trial Chamber's

11 conclusions were regarding that incident and why it did not convict

12 Petkovic under JCE 3 of liability. The Trial Chamber believed that

13 Petkovic was informed about the event seven months after the event, and

14 therefore that was not something that was foreseeable as far as he was

15 concerned.

16 The next column we have two brief paragraphs from the

17 Prosecution's appeal. The Prosecutor considers that the factual

18 conclusions of the Trial Chamber are sufficient to overturn an acquittal

19 into a conviction. Just a brief comment. Now I'm going to try to be

20 very, very fast.

21 The whole story is based actually on a document by the

22 International Red Cross, P07636, which is the source of Petkovic's

23 information about the crime. The slide will present this document. I

24 would like to draw your attention to the fact that the document was set

25 to Mr. Marjan Biskic and it states here that he was the deputy minister

Page 819

1 of defence. He was actually assistant minister. And for our purposes

2 today, it is important that this was a person who was in charge at the

3 Ministry of Defence for the military police and the security service

4 called SIS, S-I-S, who was responsible for processing perpetrators of

5 crimes and for conducting investigations. Thus, he was the one who

6 received this letter which was sent for the information to Petkovic,

7 Prlic, and to the president's office and to the Supreme Command. If we

8 keep in mind some other circumstances that I'm referring to here, and

9 because I have such a brief period of time at my disposal I'm only going

10 to refer to 4D01614. The document clearly indicates that Petkovic,

11 although at that time in December 1993 was deputy head of the HVO

12 Main Staff, was not automatically the person in charge if the chief of

13 the HVO Main Staff was absent. We see from the document that Ante Roso

14 who was the then-head of the Main Staff said that other than Petkovic

15 Matic, Vrbanac were also authorised to stand in for him when he was

16 absent. So if we established who at which period was authorised to carry

17 out the tasks of the chief of the Main Staff, we need to be familiar with

18 a whole series of circumstances. At this point I don't want to burden

19 you with the regulations dealing with who was in charge and how to

20 discipline soldiers; we don't have time for that.

21 But based on this, in brief, I can conclude in view of the fact

22 that a person authorised to process crime perpetrators was informed about

23 the crime and was authorised to undertake the necessary steps, there was

24 no reason for Petkovic, Prlic, or the Supreme Commander do anything in

25 particular in that regard.

Page 820

1 The next slide, slide number 9 refers to the thefts in Stupni Do

2 for which the Prosecution also cites Petkovic's responsibility according

3 to the chain of command. I'm going to try to be as brief as possible

4 here because there's a lot of information that I wanted to go over. The

5 crime did happen; that is beyond dispute. We discussed this in our

6 submissions last Thursday, but what we would like to say is -- can we

7 please look at the next slide and can it please not be broadcast because

8 it contains statements by protected witnesses, so I just wanted to make

9 sure that they remain confidential.

10 As for the investigation itself, (redacted)

11 (redacted)

12 (redacted) Witness Bandic spoke

13 about the activities of the military prosecutor. This is transcript

14 38101.

15 Witness Jan Koet confirmed his contacts with the public

16 prosecutor regarding the accusations regarding crimes in Stupni Do. This

17 is P10092, paragraph 22. Engaging the military district prosecutor

18 involved to investigate the crimes in Stupni Do is seen on the basis of

19 document 4D00499. Ivica Rajic who led the actions in Vares explicitly

20 communicated with the Supreme Commander Mate Boban, and the following

21 evidence speaks as to that. (redacted)

22 Ivica Rajic sent reports directly to the Supreme Commander.

23 Exhibit P06291.

24 Boban spoke about the crimes in Stupni Do, the investigations,

25 and the necessity to punish the perpetrators at a meeting with

Page 821

1 President Tudjman in Split on the 5th of November, 1993. My client,

2 General Petkovic, was also present. This is the document P06575.

3 Then-Defence Minister Perica Jukic contacted UNPROFOR in order to

4 investigate the crimes in Stupni Do. This is document 4D00506.

5 And now we can show the next slide and then we will keep the

6 following one confidential. This is evidence that speaks about the

7 security service, the SIS, and the one that investigated the crimes in

8 Stupni Do. This is document P06828. It's a SIS report which was sent to

9 the then-Minister of Defence Jukic and the then-Chief of the HVO

10 Main Staff Roso. Witness Bandic also spoke about this. This is

11 transcript 38324. Witness Jan Koet? Also spoke about the investigation,

12 same document, P10092.

13 If we accept the standard set by the Trial Chamber in the Blaskic

14 judgement, we are going to see that the organs authorised to investigate

15 and process perpetrators of crimes were absolutely involved in relation

16 to Stupni Do. Other than that, at that point in time, Petkovic was the

17 deputy chief of the Main Staff, and I just need a couple of more minutes

18 to discuss how Ivica Rajic changed his name to Viktor Andric. Can we

19 please not broadcast this slide.

20 We can see from the following documents that on the 10th of

21 November, 1993, Mate Boban issued a statement that Rajic was relieved of

22 duty. This is document P10255. (redacted)

23 (redacted)

24 (redacted) This is transcript 24532 to

25 323 (as interpreted). Witness Bandic told us that Mate Boban decided to

Page 822

1 keep Rajic but under the name of Viktor Andric. This is transcript page

2 38306. And now there's a series of documents - I mentioned just a few

3 here - but there are numerous such documents showing that the entire

4 political and military structure of Herceg-Bosna knew that Rajic had

5 changed his name. I apologise if somebody perhaps didn't even know that,

6 but my client, Mr. Petkovic, did know that.

7 And then what happened then with Ivica Rajic? In April 1994

8 again he changed his name to Jakov Kovac this time. In 1995 Rajic was

9 arrested but he was not charged for the crimes in Stupni Do, and finally

10 the Mostar Court acquitted Rajic. All this evidence and there are more,

11 we can conclude that Milivoj Petkovic cannot be held responsibility

12 according to command responsibility for the theft in Stupni Do. Simply

13 speaking, all his superiors were equally as informed about all events,

14 and the organs of Herceg-Bosna entrusted with the investigation and

15 processing of crimes were informed about everything.

16 The conclusion about this is that we feel that this ground should

17 be denied as groundless.

18 As for the third ground of appeal, just briefly, I really tried

19 and read the judgement a million times. And in my view and according to

20 my reading of judgement, the Prosecution is not correct when they say

21 that my client was not convicted of wilful destruction, wanton

22 destruction, in these four locations. In the left-hand column you see

23 which locations are dealt with here. I also tried to give excerpts from

24 volumes 3 and 4, the paragraphs that refer to those crimes, and my

25 conclusion is that my client was punished. Perhaps this is one more

Page 823

1 proof of how hard it is to read this judgement.

2 I think that I still have -- I just have five minutes, ah, ten

3 minutes. Ten minutes. Then I can slow down a little bit.

4 JUDGE AGIUS: You are correct, you have ten minutes left.

5 MS. ALABURIC: [Interpretation] Now I'm going to talk about the

6 first ground of appeal, and I'm going to round off with the topic of

7 Mostar and the sentencing.

8 As for the first ground of appeal is concerned, the Prosecution

9 stated correctly that there is a total lack of uniformity as far as

10 terminology is concerned. We tried to determine when probability and

11 possibility standards are being used. For our purposes here,

12 General Petkovic, we believe that the standard has been properly set and

13 established, and we believe that there is a lot of linguistic confusion

14 here and that in essence the real, proper standard was applied; and that

15 for this reason, this ground of appeal is without basis.

16 As for analysing the crime base in such a way that each

17 individual crime is separately analysed, we hope that as in the

18 judgements -- in the judgement case, paragraph 413 and Martic appeal,

19 paragraph 169, we believe that an analysis should be carried out on a

20 case-by-case basis.

21 I will skip a couple of sides now because I don't have sufficient

22 time. We will continue at page 20.

23 I am very happy when I come across a situation where I can agree

24 with the Prosecution and thank them for something they have done for my

25 client, as I would like to do so now. According to their ground of

Page 824

1 appeal 1(g) under (f), they were of the belief that General Petkovic was

2 convicted for destructing religious facilities under JCE 1, but it should

3 have been under JCE 3. Given the fact that this works in favour of my

4 client, I would like to thank them; but we nevertheless believe that

5 there is no ground for liability under any of these aspects.

6 Given the fact that my learned friends concluded their

7 presentation by showing video footage of Mostar, which is upsetting

8 enough, I also wanted to conclude my presentation discussing the siege of

9 Mostar, its destruction and the terror of civilians. We can play the

10 footage now. It is slide 21. We do not want to diminish the importance

11 of any victim. What we wanted to provide the Appeals Chamber with,

12 according to our view, is a full picture of events. All of these people

13 were protected witnesses, meaning that the transcript provided here is

14 also protected. These three witnesses, Your Honours, were the

15 representatives of the international community: Witnesses BB, BA, and

16 BC. If you look again at what they said on the topic, we can see that

17 they established that the civilians could and wanted to leave East Mostar

18 but were not allowed by their authorities, the statements of these three

19 witnesses are identical. They also referred the Bench to their reports.

20 In other words, they were aware of the situation, i.e., that the

21 civilians wanted to leave East Mostar.

22 We also wanted to specify a couple of Army of BiH documents,

23 meaning the people from their hierarchy who were placed there

24 East Mostar. Document 4D719 is dated the 14th of October, 1993. It is a

25 report by the commander of the ABiH. He said that transporting the

Page 825

1 civilian population presents a great problem as well as the transport of

2 others leaving in the direction east and --

3 THE INTERPRETER: Interpreter's correction: North and south of

4 Mostar.

5 MS. ALABURIC: [Interpretation] -- this was in October of 1993.

6 The Army of Bosnia-Herzegovina wanted the civilian authorities to assume

7 the proper role and take responsibility for transport of civilians.

8 The next document is 4D545, an excerpt from Esad Sejtanic's book.

9 He was an ABiH commander. He literally wrote as follows:

10 "Many inhabitants want to go to Jablanica and further afield to

11 Bosnia. By repressive measures regrettably, we prevented the outflow of

12 population and reduced any movement of population to a minimum."

13 Your Honours, we wanted to show you this, so as to keep in mind

14 that the situation in Mostar was not only the consequence of operations

15 conducted by the HVO. The ABiH was very much active in the area at that

16 time as well. As can you see, civilians remained in East Mostar, also

17 because the authorities in that part of town would not allow them to

18 leave. Believing, Your Honours, that we managed to show that in the

19 first half of 1993 there were no mass movements of Muslims and that no

20 crime committed during that time can be reasonably concluded as a crime

21 having being committed with the idea of furthering the plan of ethnic

22 cleansing, and given that in mid-1993 there was an all-out war between

23 the HVO and the ABiH, and that the so-called siege of Mostar and the

24 plight of civilians came as a result of not only HVO actions but those of

25 the ABiH as well, primarily because they prohibited the civilians to

Page 826

1 leave East Mostar - bearing all that in mind, as we specified in our

2 submissions, we believe that my client's sentence, the sentence of

3 General Petkovic, is not unreasonable or unjust from the point of view as

4 discussed by the Prosecution. It should not be increased. It should

5 either be reversed, rejected, or drastically reduced.

6 Thank you very much. I believe I have run out of time.

7 JUDGE AGIUS: Thank you, Madam. We will have an hour-and-a-half

8 break instead of the one hour that was communicated to you. So we will

9 resume at 15 minutes past 2.00.

10 --- Luncheon recess taken at 12.47 p.m.

11 --- On resuming at 2.16 p.m.

12 JUDGE AGIUS: So thank you. Mr. -- Defence for Mr. Coric, you

13 have 30 minutes.

14 MR. IVETIC: Thank you, Mr. President. Good afternoon,

15 Your Honours.

16 At this time we would like to try to utilize that time-period

17 which we have as efficiently as possible. Since we already addressed the

18 Prosecution's ground 1A last week in -- at some great length in response

19 to Your Honours' questions, I believe it was question 10, we will not be

20 spending more time on that today repeating those same arguments. Instead

21 we will focus more on the remaining grounds of the Prosecution appeal.

22 We also announce that we stand behind our written submissions

23 such that we are not conceding anything -- any topic that is in our

24 written submissions which we do not get to discuss in open court today

25 due to the time.

Page 827

1 In essence, the Prosecution appeal presented in its brief and

2 today presents several grounds seeking an increase of a sentence which we

3 believe is already manifestly in excess and unjust given the

4 circumstances. The Prosecution relies upon Mr. Coric's position and

5 alleged acts and omissions to allow a climate of impunity, and we submit

6 that when viewed under the totality of the evidence as the trial --

7 pardon me, as the Prosecution even asked Your Honours to do at temporary

8 transcript page 12, lines 14 to 25, as to Coric, we believe that under

9 that totality the conclusions of the Prosecution are wrong as to

10 Mr. Coric.

11 I will just say a few words about subground 1B of the Prosecution

12 appeal. The Prosecution claims that the Trial Chamber disregarded

13 Prosecution evidence and thus wrongfully acquitted Mr. Coric of certain

14 incidents. However, the Prosecution has failed to show what evidence was

15 alleged to be in existence which was disregarded and which showed that

16 Coric knew of the commission of crimes and that he was involved in the

17 crimes and that he also knew that they were not being punished or

18 processed by the relevant investigative or judicial entity. To the

19 contrary, a review of the judgement and the underlying evidence

20 demonstrates that it was Defence evidence on this matter that was not

21 engaged and properly analysed by the Chamber and which now must be

22 analysed in light of the Prosecution's appeal.

23 At paragraph 29 of our response to the appeal, we have detailed

24 certain evidence that the Trial Chamber disregarded from the Defence,

25 including court registers of hundreds of criminal reports filed by both

Page 828

1 the military and civilian police against perpetrators of crimes against

2 Muslim victims. Now you may ask why is that important. Let me bring

3 that to your attention.

4 Today at temporary transcript page 4, we heard the Prosecution's

5 very emotive rendering of the events surrounding the tragic death and

6 murder of Sanida Kaplan. And I apologise if the pronunciation of the

7 name is off, I'm not sure exactly if it is Kaplan or Kaplan, but that is

8 the individual at issue. I would direct Your Honours to the evidence in

9 the case, P9550, 5D4234, P -- pardon me, 5D4236. These are precisely

10 court proceedings, indeed judgements, that have been entered against the

11 perpetrators of the crimes relating to the Kaplan family entered by the

12 appropriate organs in BiH. And furthermore, if one reads those

13 judgements, you will see that the judicial authorities after the war cite

14 to and are greatly assisted by criminal reports and other documents that

15 date from 1993 that are precisely part of these court registers that the

16 Defence has been talking about that were transferred to the relevant

17 judicial organs to complete the investigative work that had been

18 accomplished by the police filing criminal reports against perpetrators.

19 And that is the -- the register we've been talking about is 5D4288. We

20 have discussed it at length. This is a large number of proceedings for

21 crimes against persons of all ethnicities.

22 So, Your Honours, we submit that the Prosecution was not entirely

23 correct this morning when they left Your Honours with the impression that

24 justice would be denied to the Kaplan family if these acquittals of

25 Mr. Coric were to stand. Indeed, justice against the actual persons who

Page 829

1 committed the crimes has already been undertaken by the organs at issue.

2 And there's been no linkage to any acts or omissions of Mr. Coric.

3 Thus, we submit, the Prosecution appeal has no merit if we

4 consider this bulk of evidence that supports the proper processing of

5 criminal reports by both the military and civilian police, and,

6 therefore, the acquittal of Coric should be for even more crimes than

7 those that the Trial Chamber acquitted him of.

8 Given the presumption of innocence and the requirements of in

9 dubio pro reo and given that the Prosecution bears the burden of proof,

10 we believe that any error made by the Chamber needs to be again evaluated

11 by this Appeals Chamber under the light of those same principles, and in

12 that sense, the Prosecution ground cannot be sustained.

13 I would move to ground 2 of the Prosecution's appeal relating to

14 Article 7(3) responsibility. Your Honours have read in regards to

15 ground 2 of the appeal that the Prosecution focuses this ground on their

16 brief that Mr. Coric had effective control over military policemen and

17 that he was an architect, as they say in paragraph 404 of their appeal,

18 of the HVO network of detention centres. And we've heard a lot today

19 about this network of HVO detention centres. In fact, I was able to mark

20 down at least at temporary transcript page 32 and 36 that the Prosecutor

21 relied upon that network today.

22 And they claim that Mr. Coric failed to do anything to punish or

23 prevent crimes. This morning, Your Honours, at temporary transcript

24 page 17, they claimed that Mr. Coric, among others, had knowledge of

25 crimes, and then at temporary transcript page 14, they said he did not

Page 830

1 take steps to curb criminality. We believe that the evidence and the

2 incidents that the Prosecution relies upon do not support this

3 conclusion. And as an example, one incident relied upon by the

4 Prosecution in its appeal brief, and they use this for both JCE 3 and

5 7(3) liability of Mr. Coric, is the 14 July 1993 incident involving the

6 killing of one and the wounding of two detainees at Dretelj. And this is

7 at Prosecution appeal brief, paragraph 279, and 317 through 321.

8 However, if the facts of the same are review -- are dilated upon, it is

9 clear that no 7(3) command responsibility nor other criminal liability

10 can be attributed to Mr. Coric. And, again, Dretelj was mentioned at

11 temporary transcript page 20 today, albeit in a general sense as to

12 another appellant.

13 Now, in the Prosecution's appeal, they rely upon P3446 in

14 footnote 1016 for this ground. But that document, from the commander of

15 the military police stationed at Dretelj, claims as to the perpetrator, a

16 Mr. Vulic, a military policemen who shot the inmates as follows:

17 "After giving a statement was then relieved of his duty as

18 military policeman, crime investigators will conduct a more detailed

19 investigation about all of this."

20 That's what the document the Prosecution relies upon says. It is

21 clear from such a report that Mr. Coric as chief of the military police

22 administration was informed that after a shooting incident, all necessary

23 and appropriate steps foreseen under the law were taken by the

24 authorities, indeed by the superior officer of the perpetrator, who had

25 possibly committed a crime and that steps were under way by the

Page 831

1 investigative organs to determine the consequences of the same.

2 There was no reason for Mr. Coric to doubt that all appropriate

3 investigative and disciplinary procedures, including legal steps, would

4 be taken according to the relevant authorities after having received that

5 report. Thus, Coric could not be put on notice of any crime for which he

6 needed to intervene to punish or discipline himself. Indeed, we have

7 other evidence, P3476, and a Prosecution protected witness who testified

8 at 22401 to 22402 as to appropriate steps that were taken against the

9 perpetrator of this shooting.

10 Now, under the prevailing ICTY jurisprudence, where reports were

11 made to the appropriate authorities by subordinates of the accused for

12 the institution of disciplinary matters, the accused has discharged his

13 duty and cannot be held criminally responsible under Article 3. We have

14 that from the Boskoski and Tarculovski trial judgement, paragraph 536.

15 Further, we have from the Popovic appeals judgement, paragraph 1942, that

16 the use of disciplinary measures may be sufficient for a superior to

17 discharge his duty to punish crimes under Article 7(3).

18 As we stressed last week and as we stress again here today,

19 neither Coric nor the military police could undertake steps once a

20 criminal investigation and criminal report were submitted to the relevant

21 judicial organs to follow through on the initial disciplinary actions of

22 military policemen who may have committed crimes.

23 Contrary to what the Prosecution presents in their appeal, Coric

24 had no effective control over military policemen at Dretelj and Gabela

25 military remand prisons which were under the effective command and

Page 832

1 control of the 1st Knez Domagoj Brigade and its commander, Obradovic. We

2 see that at P3731, P4253.

3 The evidence shows the sole duty of the military police battalion

4 within Dretelj was to assist the HVO brigade in security issues under the

5 command of the brigade commander and to report on eventual criminal

6 incidents connected to murders of the military police. The evidence

7 shows the military police administration did not have and Mr. Coric did

8 not have authority nor influence over the conditions of detention at

9 these two facilities.

10 Now, this relates to what the Prosecution said today at temporary

11 transcript page 17 and 14 as to steps not being taken by Coric to curb

12 criminality.

13 In our response brief to the Prosecution appeal, at paragraphs 52

14 and 81 through 83, we showed the variety and multitude of steps that

15 Mr. Coric undertook, his many efforts to try to positively affect

16 conditions in Dretelj despite his lack of authority over the same, by

17 addressing various higher organs. We will not repeat those submissions

18 here today, but, rather, would refer Your Honours to look to those

19 sections of our response brief and consider those paragraphs and consider

20 those efforts of Coric when assessing whether the Prosecution's claim, as

21 presented today, bears merit or, as we submit, does not bear merit.

22 We submit that no Article 7(3) command liability can attach to

23 Mr. Coric for failing to take actions within his limited powers,

24 especially under the existing evidence on record. And, again,

25 Your Honours at temporary transcript page 10, lines 10 through 19, and

Page 833

1 temporary transcript page 12, lines 14 to 25, Madam Prosecutors asked

2 that the Trial Chamber needed to look at the totality of the evidence.

3 We believe if Your Honours look at the totality of the evidence, you will

4 agree that Mr. Coric cannot bear criminal responsibility for these

5 incidents.

6 Now, again, as an extension of this same point and again

7 responding to paragraph 404 of the Prosecution's appeal wherein Mr. Coric

8 is named as an architect of this network of detention centres which was

9 mentioned today at least two or three times, I have temporary transcript

10 pages 32 and 36 written down, and today also the Prosecution said that

11 the Trial Chamber erroneously acquitted Mr. Coric despite having made

12 findings that he should have been found guilty of. Well, if we use this

13 same standard to review the trial judgement, the Defence submits that

14 exculpatory findings and contradictory conclusions of the Trial Chamber

15 are made as to Coric in finding him guilty. We would point out, among

16 other things, the following.

17 Volume 4, paragraphs 905, 916, 1421, 1428 of the judgement,

18 wherein Coric never restricted access to representatives of international

19 organisations when requested. This doesn't fit into the Prosecution's

20 scenario as presented today. Therefore, their appeal cannot stand.

21 Next, volume 4, paragraph 955, the Trial Chamber found that Coric

22 was not informed of mistreatment and had no reason to believe detainees

23 were mistreated. This also does not support the Prosecution appeal

24 today.

25 Volume 2, paragraph 1470, finding that beginning October 1992,

Page 834

1 there is no evidence that detainees were sent to perform labour with

2 Coric's approval.

3 Volume 2, paragraph 1612, 1617, 1633, that neither the military

4 police administration nor the military police were involved in any

5 incident inducing the alleged mistreatment of detainees working in the

6 front lines.

7 We believe that Your Honours should also look at the

8 contradictory finding of the Trial Chamber at volume 2, 1446, insisting

9 that Coric ordered release of detained persons upon letters of guarantee

10 despite confirming that no such orders existed in evidence. And we would

11 also point to the -- volume 4, paragraph 960 to 961, that restrictions

12 or obstructions to access to the detention centres could not be said to

13 be ordered by Coric.

14 And just two more. Volume 4, 897, 899, and paragraphs 955, 957,

15 962, 985, 988, 1018, that demonstrate that Coric lacked access to reports

16 about prison conditions. Again, this does not support the version of

17 events that the Prosecution has presented as part of their appeal today.

18 And lastly, in this regard, volume 4, 904, the finding that Coric

19 was not involved in health matters or logistics for the prisons which,

20 again, goes contrary to the Prosecution's appeal.

21 Respectfully, if the Prosecution wishes to look at the

22 Trial Chamber's errors, it must concede that these errors apply to the

23 convictions of Mr. Coric as to detention facilities. Thus, we believe

24 that to grant the Prosecution appeal one would have to ignore these other

25 inconsistencies and these false convictions which would thus lead to a

Page 835

1 miscarriage of justice.

2 As to ground 3 of the Prosecution's appeal, I think we have been

3 rather clear and succinct in our response brief and therefore we stand

4 upon what is written therein and direct Your Honours to consider the

5 same.

6 I then move to ground 4, sentencing. And Your Honours have heard

7 today from the Prosecution that these sentences, and in particular the

8 sentence against Mr. Coric, were manifestly insufficient or inadequate.

9 I have recorded down at least four times when that was said. Temporary

10 transcript page 26, 27, 31, and 32.

11 Your Honours, Mr. Coric received a 16-year sentence. In

12 paragraph 137 to 140 of our response brief, we have pointed out that this

13 sentence is indeed in excess of the maximum sentence that was available

14 to be issued under the existing SFRY and SRBiH law at the time of the

15 alleged offences that formed the conviction. Thus, it is inappropriate

16 to call such a sentence "manifestly insufficient."

17 And I know although the Tribunal has decided that it is not bound

18 by the SFRY sentencing provisions, we would draw Your Honours' attention

19 to international law and the principle of nullum crimen sine lege, nulla

20 poena sine lege. The law in force at the time of the commission of the

21 crimes alleged was the 1976 Criminal Code which remained authoritative in

22 BiH until after the year 2000. It dictated that war crimes were to be

23 punished by imprisonment that falls within five to 15 years or by the

24 death penalty for most crimes, but the death penalty was abolished and

25 substituted by the possibility to impose a 20-year term. You can see

Page 836

1 this from Articles 38, 142 and 37 of the relevant law.

2 The prohibition on retroactivity inherently implies a prohibition

3 on the retroactive application of the lex gravior, i.e., the more severe

4 penalty. Consequently, it is unlawful to impose a heavier penalty which

5 did not exist at the material time of the commission of the crimes and

6 the lesser sentence should be applied as per the favor libertatis

7 principle. Now, Your Honours, that's not just a submission of the

8 Defence. That is a holding of the European Court of Human Rights in

9 Maktouf and Damjanovic v. BiH, page 11. The principle of legality and

10 its corollary nulla poena sine lege inherently imply a prohibition on the

11 application of a more stringent penal code than that which existed at the

12 time of commission. We submit that the prohibition on retroactivity is

13 part of customary international law and a preemptory norm of

14 international law permitting no derogations. That's what the European of

15 Court of Human Rights in Maktouf and Damjanovic v BiH said at page 46.

16 So thus in dealing with the same issue --

17 JUDGE AGIUS: You have four minutes left, Mr. Ivetic.

18 MR. IVETIC: Thank you.

19 In dealing with the same issue, an application of the 2003 BiH

20 Criminal Code instead of the 1976 SFRY one, the European Court of Human

21 Rights found that it was a violation to apply the newer law which had

22 more stringent sentences than the prior law. Under such a backdrop, this

23 sentence against Mr. Coric cannot be found manifestly inadequate. For

24 this reason alone we would ask that Your Honours should not increase the

25 sentence but should lower the same. But we have also addressed other

Page 837

1 arguments in our response brief which I will not take the time to go

2 through in detail but we believe each of them calls for a reduction in

3 sentence or indeed no sentence, not an increase, irrespective of whether

4 you accept the argument and holding of the European Court of Human

5 Rights.

6 Today Madam Prosecutor mentioned several other ICTY cases. We

7 have already dealt with those in paragraphs 129 through 133 of our

8 response and stand on those submissions. We also join in the submissions

9 made today by Mr. Ellis of the Stojic Defence as to sentencing and will

10 not repeat the same.

11 We saw a very emotive video today. And war, unfortunately, leads

12 to victims and it leads to emotions, and we believe that Your Honours

13 should view the law, view the facts absent emotion and should judge based

14 upon the evidence that we believe shows that Mr. Coric, from his

15 position, tried to act as an honourable police enforcement official,

16 first at the military police administration and later at the civilian

17 MUP, and he tried to prevent crimes and bring perpetrators to justice by

18 way of filing criminal reports and taking other steps. And, therefore,

19 we reject the Prosecution's appeal that he should be convicted and that

20 his sentence should be further increased.

21 Thank you, Your Honours. I hope that I have stayed within my

22 time-limits.

23 JUDGE AGIUS: You did, Mr. Ivetic, and I thank you.

24 It is now the turn of the Defence team of Mr. Pusic. Are you

25 comfortable there, Mr. Sahota, or do you wish to come in front?