Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16826

 1                           Wednesday, 4 May 2011

 2                           [Rule 98 bis Judgement]

 3                           [Open session]

 4                           --- Upon commencing at 9.02 a.m.

 5                           [The accused entered court]

 6             JUDGE ANTONETTI: [Interpretation] Mr. Registrar, kindly call the

 7     case.

 8             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

 9     is case number IT-03-67-T, the Prosecutor versus Vojislav Seselj.

10             JUDGE ANTONETTI: [Interpretation] Thank you, Registrar.

11             Today is Wednesday, the 4th of May, 2011.  Let me first greet the

12     prominent OTP representatives who attend the hearing for the oral

13     decision by the Trial Chamber under Rule 98 bis.  Let me also greet

14     Mr. Seselj and all the people assisting us, the Registrar, the usher, the

15     security officer, and any other people assisting us.

16             Today I shall start with the reading out of the Rule 98 bis

17     decision, and then I will continue with a partially dissenting opinion of

18     mine.

19             We are to sit in the morning today.  We're going to start right

20     now, and we shall more likely than not continue into the afternoon.  If I

21     were not to be finished with reading out the decision, we can continue

22     tomorrow afternoon, because I have over 120 pages to read.  I shall

23     start.

24             The Trial Chamber is going to deliver its Rule 98 bis decision,

25     oral decision.  Firstly, the Trial Chamber will recall the procedural


Page 16827

 1     background and then will move on to the law applicable under Rule 98 bis.

 2     Thirdly, it will recall the counts and modes of responsibility as alleged

 3     in the indictment.  Fourthly, it will recall the elements of the crimes

 4     and set out the law applicable to instigating as a mode of participation

 5     in crimes.  In a fifth part, it will give samples of evidence it has

 6     heard that are enough and capable of supporting at this stage of the

 7     proceedings to sustain the allegations as alleged in the counts, and then

 8     the Trial Chamber will review the responsibility of the accused for

 9     instigating to crimes as alleged in the indictment through his speeches.

10             First, procedural background.  The Prosecution case started on

11     the 7th of November, 2009 and closed with the testimony of

12     Witness Nenad Jovic on the 7th of July, 2010.  Further on, the

13     Prosecution would not rest its case until the Trial Chamber had ruled on

14     all of their pending motions, including various applications for the

15     testimony of witnesses, including VS-026, considered as being unavailable

16     for health reasons following a first expert medical report.  The Trial

17     Chamber decided to have VS-026 examined by a medical expert and his

18     opinion confirms the first, in a report filed on the 26th of November,

19     2010.  The Trial Chamber then ruled all of the pending motions in

20     December 2010, on all the motions that might have an impact on the

21     Rule 98 bis proceedings by handing down 25 decisions.

22             The Trial Chamber then had to wait for the filing of the expert

23     report as to the authenticity of the Mladic notebooks filed on the

24     10th of January, 2010, its translation into B/C/S and the end of the time

25     limit for the accused to make submissions, if any, as to the motion to


Page 16828

 1     admit the notebooks.  At the administrative hearing of the 18th of

 2     January, 2011, the accused informed the Trial Chamber that it would -- he

 3     would make submissions under Rule 98 bis.  The Trial Chamber, taking into

 4     account the time needed to rule on the motions for review of the

 5     decisions issued in December filed by the Prosecution between the 28th of

 6     December and the 21st of January, 2011, issued a Scheduling Order on the

 7     25th of January for the Rule 98 bis proceedings to be held on the 7th,

 8     8th, and 9th of March, 2011.

 9             On the 7th of March, 2011, the accused made his oral submissions

10     under Rule 98 bis.  He spoke again on the 9th of March in order to reply

11     to the Prosecution specifically.  The accused denied having committed,

12     ordered, planned, aided and abetted or instigated any of the crimes

13     alleged in the indictment.  He also challenges and denies having

14     participated in the crimes as a member of a joint criminal enterprise.

15     More specifically, the accused challenged the existence of specific

16     crimes as alleged in the indictment under various counts, as well as

17     their credibility of numerous testimony and other Prosecution evidence.

18     Furthermore, he claims that the Prosecution failed to lead any evidence

19     as to the speeches in Vukovar, Mali Zvornik, and Hrtkovci as alleged in

20     the indictment, inasmuch as he did not give such speeches.

21             He further argues that if certain crimes may have been committed,

22     there is no evidence that the crimes should be attributed to the

23     volunteers recruited by his party, the Serbian Radical Party, hereinafter

24     known as SRS.  He states that he can by no means be held responsible for

25     crimes allegedly committed by such volunteers since the accused was not


Page 16829

 1     their superior within the JNA in which their volunteers were serving.

 2             In conclusion, the accused stressed that it was impossible to

 3     prove beyond any reasonable doubt that criminal acts can be attributed to

 4     him, and he is of the view that the Trial Chamber shall therefore have to

 5     enter a judgement of acquittal on all counts in the indictment.

 6             The Prosecution responded to the accused's submissions at the

 7     hearings of the 8th and 9th of March, 2011.  It drew the attention of the

 8     Chamber on various testimony and evidence admitted by the Trial Chamber

 9     which is such that they would not be capable of sustaining a decision of

10     acquittal.

11             Law applicable further to Rule 98 bis.

12             Under Rule 98 bis, once the Prosecution case is closed, the Trial

13     Chamber must, by oral decision and after hearing oral submissions by the

14     parties, enter a decision of acquittal as to any count for which there is

15     no evidence capable of sustaining a conviction.  Since the 8th of

16     December, 2004, when Rule 98 bis was last amended.  A Trial Chamber is

17     only expected to determine whether the Prosecution has adduced enough

18     evidence for each count taken as a whole as opposed to all the various

19     charges making up that particular count.  Rule 98 bis was amended in

20     order to facilitate the proceedings and to provide for a more expeditious

21     trial.  First of all, because it moved from written to an oral type of

22     proceedings, and also on focusing on all of the counts rather than on

23     every single crime alleged in each and every count of the indictment.

24             Therefore, since the latest amendment of Rule 98 bis, the

25     Trial Chamber in its majority, Judge Antonetti dissenting, deems that it


Page 16830

 1     can only enter a decision of acquittal on a single count as a whole, and

 2     this is, by the way, in keeping with the practice applied after

 3     Rule 98 bis was amended.  It was adopted and applied by Trial Chambers in

 4     the following cases, among others:  Martic, Mrksic, Prlic and Gotovina.

 5             The fact that the Trial Chamber is under the obligation to enter

 6     a decision of acquittal on the whole count gives the Defence the

 7     possibility not to answer to all of the allegations contained in a count

 8     for which it feels that the Prosecution failed to lead any evidence.

 9     Under Rule 98 bis, the Trial Chamber needs to determine whether there is

10     enough evidence for a reasonable trier of fact to enter a judgement of

11     conviction beyond any reasonable doubt.  At this stage, the Trial Chamber

12     is not to establish whether it would enter a conviction at the end of the

13     trial proceedings but whether it could do so.  It should be stressed that

14     at the Rule 98 bis stage of the proceedings, according to the Rules, the

15     Trial Chamber will first carry out a preliminary examination of the

16     evidence adduced in the Prosecution case in order to ascertain whether

17     the evidence is capable of sustaining a conviction.  This is a

18     preliminary examination which is different from the analysis carried out

19     at the end of the trial proceedings.  Indeed, at the end of the trial, a

20     Trial Chamber must look in depth into the entire case file to examine

21     every evidence on record, be it Prosecution or Defence evidence in order

22     to assess their respective probative value.

23             In order to carry out this first assessment at this stage of the

24     proceedings under Rule 98 bis, the Trial Chamber must factor in all the

25     evidence adduced during the Prosecution case.  It is not to make a


Page 16831

 1     selection among the Prosecution evidence.  The evidence favourable to the

 2     accused may only be used to assess whether a piece of evidence is clearly

 3     unreliable and incapable of belief.  As a consequence, a motion for

 4     acquittal will be granted only when there is no evidence capable of

 5     sustaining a conviction or when there is one or several pieces of

 6     evidence, but even when taken at its highest, this evidence the

 7     Trial Chamber could not sustain or decide for a conviction because the

 8     only evidence is clearly unreliable and incapable of belief.

 9             The Trial Chamber further recalls that it will only give some

10     examples of evidence.  The fact that specific evidence has -- have been

11     taken into account for the purposes of this instant decision does not

12     mean that the Trial Chamber will assess them in the same way at the final

13     stage of the judgement.  Equally, the fact that specific evidence may not

14     be mentioned in this decision does not mean that it will not be taken

15     into account and assessed accordingly at the end of the judgement, in the

16     judgement stage.  Furthermore, whilst the accused is charged under

17     various modes of responsibilities, it is sufficient for the majority of

18     the Trial Chamber Judges, Judge Antonetti, myself, dissenting, it is

19     sufficient to establish that there is evidence supporting one single mode

20     of responsibility alleged in the indictment to dismiss a motion for

21     acquittal.

22             Therefore, if a Trial Chamber accepts one of the modes of

23     responsibility at this stage of the proceeding does not mean that the

24     Trial Chamber ruled out the other modes of responsibilities --

25     responsibility alleged in the indictment.  Thus a Trial Chamber may, when


Page 16832

 1     it issues its final judgement choose another mode of responsibility that

 2     was mentioned at the Rule 98 bis proceedings.

 3             The Trial Chamber further stresses that it is for the

 4     Trial Chamber to assess the type of responsibility to attribute to the

 5     accused on the basis of the indictment and on the basis of the trial

 6     record as has already been affirmed and confirmed by the Tribunal in

 7     paragraph 248 of the Kvocka judgement.

 8             Finally, the Trial Chamber wants to make it clear that there is

 9     no contradiction between the dismissal of a Rule 98 bis motion and a

10     decision of acquittal at the end of the trial proceedings.  This applies

11     even if the Defence has not adduced any evidence.

12             Third section, overview of the counts and modes of responsibility

13     as alleged in the indictment.

14             Before I continue, I think I should slow down so that the

15     interpreters can keep pace with me and do their job properly.  I'm

16     looking at the English transcript on the screen, and I'm listening to the

17     B/C/S booth.  So far, so good.

18             Third section, overview of the counts and modes of responsibility

19     as alleged in the indictment.

20             The Trial Chamber recalls that in the third amended indictment

21     filed on the 7th of December, 2007, herein before and hereinafter known

22     as the indictment, the Prosecution charges the accused with crimes

23     referred to in the Statute of the Tribunal, namely crimes against

24     humanity and violations of the laws or customs of war.

25             The charges alleged in the indictment against the accused include


Page 16833

 1     the following nine counts:

 2             Count 1, persecution on political, racial, or religious grounds,

 3     a crime against humanity.

 4             Count 4, murder, a violation of the laws or customs of war.

 5             Count 8, torture, a violation of the laws or customs of war.

 6             Count 9, cruel treatment, a violation of the laws or customs of

 7     war.

 8             Count 10, deportation, a crime against humanity.

 9             Count 11, forcible transfer, inhumane act, a crime against

10     humanity.

11             Count 12, wanton destruction of villages or devastation not

12     justified by military necessity, a violation of the laws or customs of

13     war.

14             Count 13, destruction or wilful damage to institutions dedicated

15     to religion or education, a violation of the laws or customs of war.

16             Counted 14, plunder of public or private property, a violation of

17     the laws or customs of war.

18             The Trial Chamber will examine these counts in two groups as to

19     whether they are alleged as crimes against humanity or as war crimes.

20             The crimes the accused is charged with in the indictment concern

21     the municipalities of Vukovar in Croatia, Zvornik, Sarajevo, Mostar,

22     Nevesinje in Bosnia and Herzegovina, and Hrtkovci in Vojvodina in Serbia.

23             The accused is charged on the basis of his individual criminal

24     responsibility under all the forms of responsibility referred to in

25     Article 7(1) of the Statute of the Tribunal.  For all the crimes alleged


Page 16834

 1     in the indictment, under paragraph 5 of the indictment, it reads as

 2     follows -- I'm going to read out paragraph 5 of the indictment, which is

 3     a major one:

 4             "Vojislav Seselj is individually criminally responsible for the

 5     crimes referred to in Articles 3 and 5 of the Statute of the Tribunal and

 6     described in this indictment, which he planned, ordered, instigated,

 7     committed or otherwise aided and abetted in the planning, preparation, or

 8     execution thereof.

 9             "By using the word 'committed,' the Prosecution does not intend

10     to suggest that the accused physically committed all of the crimes

11     charged personally.  Physical commitment is pleaded only in relation to

12     the charges of persecutions by direct and public ethnic denigration with

13     respect to the accused's speeches in Vukovar, Mali Zvornik, and Hrtkovci,

14     and by deportation and forcible transfer with respect to his speech in

15     Hrtkovci and in relation to the charges of deportation and inhumane acts,

16     forcible transfer with respect to his speech in Hrtkovci.

17             "In this indictment, 'committed' includes the participation of

18     Vojislav Seselj as a co-perpetrator in a joint criminal enterprise.  By

19     using the word 'instigated,' the Prosecution charges that the speeches,

20     communications, acts and/or omissions of Vojislav Seselj contributed to

21     the perpetrators' decision to commit the crimes alleged."

22             So this was the entire paragraph 5 of the indictment.

23             The Trial Chamber recalls that if the accused denied any

24     responsibility under any mode of responsibility as alleged in the

25     indictment, this decision will endeavour for the sake of judicial economy


Page 16835

 1     to review the evidence related to the alleged responsibility of the

 2     accused solely as regards instigation.  Indeed, as we already recalled,

 3     in the view of the Trial Chamber's majority, because I have a dissenting

 4     opinion, it is enough for the purposes of the Rule 98 bis proceedings to

 5     establish that there is evidence capable of sustaining one single form of

 6     responsibility alleged in the indictment to dismiss a motion for

 7     acquittal.  This does not mean, however, that the Trial Chamber may not

 8     later on rule as to the other modes of responsibility.

 9             Fourth section, overview of the elements of crimes and the law

10     applicable to instigation as a mode of liability.

11             With regard to the elements of crimes, first, the Trial Chamber

12     recalls that according to Articles 2, 4, and 5 of the Statute, crimes of

13     war, as well as crimes against humanity occur in the context of a

14     domestic or international armed conflict.

15             Secondly, the Trial Chamber recalls that to constitute a crime

16     against humanity, the actions of an accused must be part of a generalised

17     or systematic attack directed against a civilian population -- any

18     civilian population.  These two qualifiers are alternative and not

19     cumulative.  The qualifier "generalisee" means that the attack was

20     carried out in a very large scale and resulted in a great number of

21     victims, whereas the qualifier "systematic" shows the organised nature of

22     these violent acts and the fact that their randomness is improbable.  The

23     systematic nature is recognised through the deliberate and regular

24     repetition of similar criminal behaviours.

25             Thirdly, regarding the actus reus of the crimes, it will be


Page 16836

 1     reviewed later by the Trial Chamber when the Trial Chamber addresses the

 2     counts alleged in the indictment.

 3             Fourthly, the Trial Chamber recalls that the mens rea for each

 4     crime alleged in all nine counts is made up of the criminal intent of the

 5     perpetrator of the crime, except for the crime of persecution, where in

 6     addition, in order for the responsibility of an accused to be engaged,

 7     there is need for a dolus specialis, i.e., a specific intent to

 8     discriminate on political, racial, or religious grounds.  The

 9     Trial Chamber will revisit this later on when it analyses count number 1.

10             Section B, regarding the law applicable to instigation as a mode

11     of liability.

12             For a Trial Chamber to conclude that there has been instigation

13     to commit crimes it must make sure that three conditions are met.  First,

14     a condition relating to the elements of instigation; secondly, a

15     condition relating to the intent of the instigator; and thirdly, a

16     condition relating to the nexus between the instigation and the crime.

17             First, regarding the elements of instigation to the commission of

18     crimes.  The case law of this Tribunal, notably paragraph 27 of the

19     Kordic and Cerkez appeal judgement, defined "instigation" as, I quote:

20     "Provoking someone into committing an offence."

21             The case law of the ICTR, notably in paragraph 456 of the

22     Ndindabahizi judgement defined instigation as "pushing," I quote,

23     "pushing or encouraging someone else, either verbally or through any

24     other means of communication to commit a crime with the intent of this

25     crime to be committed."


Page 16837

 1             Therefore, as mentioned in paragraph 271 of the Oric judgement,

 2     in order to have an actus reus that would make up instigation, the

 3     instigator must have influenced the physical perpetrator of the crime by

 4     requesting him to do so, by pushing him to do so, or by making sure by

 5     some way that he would actually commit the crime.  However, this did not

 6     presuppose necessarily that the instigator would have originated the

 7     idea, would have designed the initial plan in order to commit the crime.

 8     Even if the main perpetrator already envisaged the commission of the

 9     crime, the fact that he actually carried out his intent might come from

10     having been persuaded or asked to do so by the instigator.  More

11     specifically regarding how the main perpetrator was influenced, there is

12     no need for the instigation to commit crimes referred to by the Statute

13     be public or direct as it is the case for the direct and public

14     instigation to commit genocide, which is a crime in itself and not a mode

15     of liability.

16             As indicated in paragraph 273 of the Oric judgement, the

17     influence coming from instigation can be exerted directly or through

18     intermediaries, and this on various amount of people as long as the

19     instigator has the required mens rea.  There is no need for the

20     instigator to be on the scene of crime as stated by the Appeals Chamber

21     of the ICTR in paragraph 660 of the Nahimana appeals judgement, which is

22     more known as the Media appeals judgement.

23             Secondly, regarding the mens rea of the instigator.  The

24     Trial Chamber must demonstrate that the -- it is important to demonstrate

25     that the accused had the intent to provoke or to induce the perpetration


Page 16838

 1     of a crime or that he was well aware that there was a real probability

 2     that, after his instigation, one or more crimes would be committed, in

 3     the single or in the plural.  In this respect, the Appeals Chamber in

 4     paragraph 32 of the Kordic and Cerkez appeals judgement indicated that

 5     anyone provoking another person into committing an act or an omission

 6     while being aware that there is a real probability that a crime could be

 7     committed during the execution of this -- of this instigation has the

 8     required mens rea to be held responsible under Article 7(1) of the

 9     Statute.  The fact of instigating while being fully aware of this

10     probability must be considered as accepting the crime that will result.

11             The Trial Chamber, however, notes that for the crimes alleged in

12     counts 4, 8, 9, 10, 11, 12, 13 and 14 as charged in the indictment, it

13     will be sufficient to prove that the accused was fully aware that there

14     was a real probability that after the instigation one of these crimes

15     would be committed.  However, regarding the crime alleged in count 1,

16     there is need also to verify whether the accused had the intention to

17     provoke or to induce the commission of persecution as a crime aimed at

18     achieving the specific goal of discriminating on political, racial, or

19     religious grounds.

20             Finally, the Trial Chamber notes that there must -- that a

21     difference must be made between the intent and the personal motivation.

22     As stated by the Appeals Chamber in paragraph 102 of the

23     Krnojelac appeals judgement, the existence of a personal motivation does

24     not prevent the perpetrator of a crime from being -- from having the

25     necessary mens rea.


Page 16839

 1             Thirdly, regarding the existence of a nexus between instigation

 2     and commission of the crime.  As stated by the Appeals Chamber in

 3     paragraph 27 of the Kordic and Cerkez appeals judgement, there is no need

 4     to prove that the crime would not have been committed without the

 5     involvement of the accused.  It is sufficient to show that instigation

 6     was a significant element in the behaviour of the physical perpetrator of

 7     the crimes.

 8             Similarly, in paragraph 660 of the Media appeals judgement, the

 9     Appeals Chamber of the ICTR specified that in order to have instigation

10     to commit a crime, it is important to establish that the actions charged

11     substantially contributed to the crime being committed.  However, it is

12     not necessary for these actions to have been a sine qua non condition of

13     the commission of the said crime.

14             Furthermore, the Appeals Chamber of the ICTR, in paragraph 257 of

15     the Semanza appeals judgement specified that it was not necessary to show

16     or demonstrate that the accused had an effective control over the

17     perpetrator of the crime.

18             In paragraphs 238 and 296 of this appeals judgement, the

19     Appeals Chamber stated that neither was it necessary for the indictment

20     to state the exact provocative words spoken by the accused or to provide

21     any evidence of it to establish instigation to commit crimes.

22             Finally, in paragraph 368 of the Nchamihigo judgement, the ICTR

23     indicated that the time period between instigation and commission of a

24     crime is also a relevant criteria to determine the substantial

25     contribution to instigation of commission of a crime.


Page 16840

 1             As a consequence, the nexus between the elements of instigation

 2     on the one hand and the crimes alleged in the indictment on the other

 3     hand can be inferred from a number of indicia taking into consideration

 4     elements such as, for example, the position of authority and the

 5     influence exerted by the accused over the physical perpetrators of the

 6     alleged crimes or the time period between the instigation and the

 7     commission of the crimes, or the crime.

 8             Section number 5.  The Trial Chamber in its majority, dissenting

 9     opinion from Judge Antonetti, will now state why any reasonable trier of

10     fact could conclude beyond any reasonable doubt that in this case, at

11     this stage of the proceedings, there is sufficient evidence to support

12     the commission of crimes as alleged in all nine counts.

13             First, the Trial Chamber underscores that the accused did not

14     contest the fact that there was an armed conflict at the time as far as

15     the crimes alleged in the nine counts are -- are concerned.  The

16     Trial Chamber also notes that the accused even stated about the war in

17     Bosnia that it was both a religious and a civil war.  Furthermore, the

18     Trial Chamber notes that the evidence on the trial record almost all

19     state that there was an armed conflict going on, as far as crimes against

20     humanity are concerned as well as crimes of war.

21             (a), regarding crimes against humanity under counts 1, 10, and

22     11.  First and foremost, the Trial Chamber would like to answer the

23     submissions of the accused who contests -- who challenges the fact that

24     the crimes alleged in the indictment under counts 1, 10, and 11 would

25     have been committed in the framework of a generalised or systematic


Page 16841

 1     attack.  The Trial Chamber considers that at this stage of the

 2     proceedings, it has a large amount of evidence which will be mentioned

 3     more specifically later.  This evidence would allow any reasonable trier

 4     of fact to conclude beyond any reasonable doubt that the crimes alleged

 5     under count 1, relating to persecution as a crime against humanity and

 6     under counts 10 and 11 relating to deportation and forcible transfer as

 7     crimes against humanity were part of a generalised attack against

 8     non-Serb civilian population with the goal of expelling them from the

 9     territories of Slavonia, Baranja, and Western Srem; from the

10     municipalities of Zvornik; from the region of Sarajevo; from Mostar;

11     Nevesinje; and from some parts of Vojvodina in Serbia.  Therefore, there

12     is no need for the Trial Chamber to examine at this stage of the

13     proceedings to -- to the question of knowing whether these facts were

14     committed in the framework of a systematic attack.

15             Secondly, the Trial Chamber will now give examples of evidence

16     that could support the fact that each crimes alleged in counts 1, 10, and

17     11 of the indictment were committed and that the attack against the

18     non-Serb civilian population had a -- was of a generalised nature.

19             Number one, as far as count 1 is concerned, i.e., persecution as

20     a crime against humanity the Trial Chamber would like to recall first as

21     stated in paragraph 985 of the Media appeals judgement that the crime of

22     persecution is an act or an omission which introduces a de facto

23     discrimination and which refutes or violates a fundamental right

24     recognised by the international customary law or by the conventional law

25     and which has been deliberately committed with the intent to discriminate


Page 16842

 1     for an unlawful motivation, notably to discriminate on racial, religious,

 2     or political grounds.  However, any act of discrimination does not equate

 3     to a crime of persecution.  The acts underlying persecution making up a

 4     crime against humanity, be it -- be they in isolation or jointly with

 5     other acts must present the same degree of seriousness than the crimes

 6     listed under Article 5 of the Statute.

 7             Furthermore, even though persecution often implies a series of

 8     actions, a single action may be enough as long as the act or the omission

 9     is discriminatory in facts and was deliberately perpetrated with the

10     intent of discriminating for an unlawful reason.

11             Therefore, as stated by the Appeals Chamber in the Kordic and

12     Cerkez appeals judgement, murder, mistreatment, unlawful attacks against

13     civilian property or individuals, the illegal detention of civilians, the

14     destruction of civilian property and plunder are elements of persecutions

15     similar to -- which can be equated to a crime against humanity when they

16     are -- either when they're taken in isolation or jointly with other

17     actions.

18             To establish that there have been persecutions as elements of a

19     crime against humanity, it is necessary, in addition, to prove that the

20     perpetrator of the underlying actus reus had a specific intent to

21     discriminate for unlawful reasons, notably on political, racial, or

22     religious grounds.  The required discriminatory intent cannot be directly

23     inferred from the generally -- from the general discriminatory nature of

24     an attack qualified as a crime against humanity.  However, the Appeals

25     Chamber, in paragraph 110 of the Kordic and Cerkez appeals judgement,


Page 16843

 1     considers, and I quote:

 2             "The discriminatory intent can be inferred from such a context

 3     subject to the existence, as far as the facts are concerned,

 4     circumstances surrounding the commission of the crimes alleged which

 5     confirm the existence of such an intent."

 6             In this case, the persecution alleged in the indictment aimed to

 7     expel non-Serb population from a number of regions, i.e., Slavonia,

 8     Baranja, and Western Srem, from the municipalities of Zvornik, of the

 9     region of Sarajevo, of Mostar, of Nevesinje, and of certain areas of

10     Vojvodina in Serbia.

11             The Trial Chamber also notes that the elements underlying

12     persecution as referred to in the indictment mainly correspond, as far as

13     time and -- in -- as far as time is concerned and location is concerned

14     too, the crimes alleged under the other counts, i.e., deportation and

15     forcible transfer as crimes against humanity, as well as murder, torture,

16     inhuman -- cruel treatment, destruction, and plunder of property

17     protected by the Geneva Conventions as crimes of war.

18             There are also -- there are also other underlying acts of

19     persecution as alleged in the indictment.  There are other acts such as

20     the application of restrictive measures and discriminatory measures

21     towards non-Serb civilians, and public and direct denigration in speeches

22     made in Vukovar, Mali Zvornik, and Hrtkovci, promoting hatred of Croats,

23     Muslims, and other non-Serb populations.

24             The Trial Chamber notes that the accused denies all allegations

25     under count 1 relating to persecutions.  The accused notably challenges


Page 16844

 1     the allegations of religious discrimination and states that he never gave

 2     any speech in Mali Zvornik in 1992, that no speech was delivered during

 3     the war in Vukovar, and that during his speech in Hrtkovci in the

 4     framework of his electoral campaign, he only supported the idea of an

 5     exchange of civilian population and the principle of retorsion.

 6     Therefore, the accused submits that the Croats left in the framework of

 7     voluntary exchanges of property and not in the framework of a campaign of

 8     persecution aimed at expelling them.

 9             The accused also specifies that in the assumption that the

10     deportation and forcible transfer would have been recognised, these

11     crimes did not -- would not reach the necessary intensity to be

12     sanctioned as persecution as referred under Article 5 of the Statute.

13             The Trial Chamber cannot take into consideration this last

14     submission, which is totally unsustainable.  Apart from the fact that as

15     far as the generalised nature of the persecution of non-Serb population,

16     the Prosecution had a large amount of elements.  The seriousness, notably

17     of the deportation and forcible transfer, also results obviously from the

18     provisions of the Geneva Convention of 1949.

19             Article 49 of the Fourth Convention bans forcible transfers, be

20     it en masse or individual, as well as expulsion of protected people

21     outside the occupied territory to send them towards a territory of the

22     occupying power or toward -- to the -- to the territory of any other

23     state, be it an occupied state or not and for whatever reason.  This

24     provision is mentioned again in Article 85 of Additional Protocol I to

25     the Geneva Conventions for international armed conflicts and in


Page 16845

 1     Article 17 of Additional Protocol II to the Geneva Conventions in case of

 2     domestic armed conflict.

 3             The Trial Chamber specifies moreover that in the Statute, the

 4     term "deportation" in English has been translated as "expulsion" in

 5     French, and that this crime is presently provided for as a crime that can

 6     constitute a crime against humanity under Article 5, in paragraph (D) of

 7     the Statute.

 8             The Appeals Chamber in the appeals judgement Krnojelac held that

 9     the crime of persecution may take on different forms.  It may be one of

10     the other acts that make up the elements of the crimes charged in

11     Article 5 of the Statute or one of the acts that make up the elements of

12     crimes in other Articles of the Statute.  One can therefore not challenge

13     the fact that expulsions and forcible transfers may constitute underlying

14     acts of the crime of persecution when they are committed individually or

15     accumulatively with the requisite discriminatory intent.

16             As regards actus reus of the underlying crimes of persecution

17     alleged in the indictment, the Trial Chamber will analyse the -- these

18     hereinafter pertaining to the commission of crimes charged under counts

19     4, 8, 9, 10, 11, 12 and 13.

20             Therefore, the Chamber shall now address, and only address as an

21     example, some of the evidence it has on the commission of persecution

22     that would allow a reasonable judge to support at this stage of the

23     98 bis decision the fact that the perpetrators of the underlying material

24     acts had the requisite discriminatory intent.

25             Before I continue, I would like to mention that I'm going to


Page 16846

 1     quote names of witnesses and exhibit numbers.  Since there are many of

 2     them, there might be some names of the witnesses that are misspelt and

 3     some figures may be recorded incorrectly.  This will be corrected at a

 4     later stage.  The Registry will have the document I'm reading from and

 5     will check that the names and the exhibit numbers are correct.  So if

 6     there are any mistakes, don't worry about it.  These mistakes will be

 7     corrected.  I shall endeavour to read this out slowly.

 8             As regards the existence of a campaign of persecution against the

 9     non-Serb population in the municipality of Zvornik, the Chamber refers,

10     for instance, to witnesses Fadil Banjanovic, VS-1064, and VS-1066 that

11     testified to those facts on the basis of which the Chamber may infer that

12     the specific criminal intent existed.

13             As regards evidence on the imposition of restrictive and

14     discriminatory measures against non-Serb civilians including restrictions

15     of movement, removal from positions of authority in local government

16     institutions and the police, dismissal from jobs, denial of medical care

17     and arbitrary searches of homes in the municipality of Mostar, the

18     Chamber refers, as an example, to witnesses VS-1068, VS-1067, and to

19     Exhibits P658 under seal, P659 under seal, P1052 under seal, who

20     testified to these facts, and on the basis of which the Chamber may infer

21     that the specific criminal intent existed.

22             As regards the municipality of Nevesinje, the Chamber refers, for

23     instance, to witnesses Ibrahim Kujan and Vojislav Dabic and to

24     Exhibits P524 and P880 under seal that testify to facts of the same

25     nature and on the basis of which the Chamber may infer that the specific


Page 16847

 1     criminal intent existed.

 2             As regards the area of Sarajevo, the Chamber refers, for

 3     instance, to witnesses VS-1055 and VS-1111 and Exhibit P456 under seal

 4     that testify to facts of the same nature and on the basis of which the

 5     Chamber may infer that the specific criminal intent existed -- specific

 6     requisite criminal intent existed.

 7             As regards the Vojvodina, the Chamber refers to witnesses

 8     Aleksa Ejic and Katica Paulic who testify to facts of the same nature and

 9     on the basis of which the Chamber may infer that the specific requisite

10     criminal intent existed.

11             Now, as regards counts 10 and 11, on expulsion of non-Serb

12     civilians as a crime against humanity and on the forcible transfer of

13     this population as an inhumane act and a crime against humanity, the

14     Trial Chamber notes that the accused argues that in Hrtkovci, inter alia,

15     but also in other municipality, the departure of the non-Serb population

16     occurred as part of an exchange of -- of property, allowing for the

17     possibility of staying for those who so wished.  The Trial Chamber

18     remarks furthermore that the accused indicated on page 16694 of the

19     transcript that at his speech in Hrtkovci he had promised that when

20     the -- he would come to power, he would see to the exchange of property

21     and would apply the principle of retorsion.

22             I waited because the English interpreter was faster than the

23     Serbian interpreter.

24             On this point, it is important to recall that according to the

25     Appeals Chamber in paragraph 229 of the Krnojelac appeals judgement, the


Page 16848

 1     Trial Chamber cannot infer that there is a real choice because consent

 2     was given insofar as the circumstances under which it was given may

 3     deprive it of any value.  Accordingly, the evidence received by the

 4     Chamber that mentioned a consent must be reviewed in their context,

 5     bearing in mind the situation of insecurity and the climate of fear that

 6     prevailed, the threats and other forms of violence, the fear and the

 7     vulnerable position of the persons in question.  Therefore, it is a lack

 8     of real choice, which is important in determining the unlawful nature of

 9     expulsion or forcible transfer.

10             In the present trial, the Chamber considers that the fact that

11     the accused tries to substantiate resorting to expulsion and forcible

12     transfer of non-Serb civilians as relevant because this would amount to

13     legal retorsion measures under international law.  The Trial Chamber

14     shall now provide a few examples of the evidence which is sufficient to

15     base its analysis to consider that the crimes charged in counts 10 and 11

16     were in fact committed in the various municipalities mentioned in the

17     indictment.

18             As regards the municipality of Vukovar, the Chamber refers, for

19     instance, to the testimonies of the expert Anna-Maria Radic, of

20     Dragutin Berghofer, and of Vesna Bosanac and to Exhibit numbers P278,

21     P587 under seal, and P632.

22             As regards the municipality of Zvornik, the Chamber refers, for

23     instance, to the testimonies of Fadil Banjanovic, VS-1012, VS-1013,

24     VS-1064, and to Exhibit numbers P663, P664, and P665.

25             As far as the Sarajevo area is concerned, the Chamber refers, for


Page 16849

 1     instance, to the testimony of Safet Sejdic and to Exhibit number P463.

 2             As regards the municipality of Nevesinje, the Chamber refers, for

 3     instance, to the testimonies of Goran Stoparic and Ibrahim Kujan, as well

 4     as Exhibit number P524.

 5             As regards Vojvodina, the Chamber refers, for instance, to the

 6     testimonies of Aleksa Ejic, VS-1134, VS-061 and to Exhibit numbers P537

 7     under seal and P564 under seal.

 8             As now -- as regards war crimes, now, alleged in counts 4, 8, 9,

 9     12, 13, and 14.

10             Firstly, as regards count 4, namely the murder of non-Serb

11     civilians as a violation of the laws or customs of war.

12             The Trial Chamber notes that the accused challenges the murder of

13     some people in Velepromet, and he seems not to admit the existence of the

14     alleged crimes committed in the municipality of Zvornik, save for the

15     murder of 20 or so men and young Muslim boys and Croatians from Bosnia

16     for whom the accused underscores this should be attributed solely to

17     Arkan's men.

18             The Chamber shall now provide a few examples of the evidence

19     which is sufficient and which -- on which it can base its review to

20     consider at this stage of the 98 bis procedure that the crime of murder

21     charged under count 4 was, in fact, committed in the various

22     municipalities mentioned in the indictment.

23             As regards the municipality of Vukovar, the Chamber refers, for

24     instance, to the following evidence:  As regards the execution of

25     non-Serbs by the Serbian forces on an execution site located between the


Page 16850

 1     Ovcara farm and Grabovo, close to Vukovar, on the 20th of November, 1991,

 2     the Chamber heard the witnesses VS-016, VS-007, Emil Cakalic, as well as

 3     Davor Strinovic.  The Chamber has also received the Exhibits P609, P611,

 4     P615, P782, and P786.  Furthermore, as regards the evacuation of the

 5     Vukovar Hospital and the execution of some of the prisoners at the

 6     Velepromet warehouse, the Chamber has heard the testimonies of Dragutin

 7     Berghofer and of VS-051 and has received Exhibit number P282.

 8             As regards the municipality of Zvornik, the Chamber refers, for

 9     instance, to the following evidence:  On the murders committed at the

10     Ekonomija Farm and at the Ciglana factory, the Chamber has heard the

11     testimonies of witnesses VS-1015 and Fadil Kopic.  Furthermore, as

12     regards the murder of the Bosnian Muslims at the technical school of

13     Karakaj, the Chamber has heard the testimony of VS-1012.  As regards the

14     murder of the detainees at the slaughterhouse of Gero, the Chamber heard

15     the testimony of VS-1066.  As regards the murder of Muslims committed at

16     the cultural centre of Drinjaca, the Chamber heard witness VS-1064.

17             As regards the area of Sarajevo, the Chamber refers, for instance

18     to, the following evidence:  As regards the execution of non-Serb

19     civilians killed at Ljesevo in the municipality of Ilijas, the Chamber

20     heard Witness VS-1111; on the murder of non-Serbs in Zuc in the

21     municipality of Vogosca, the Chamber heard Witness Safet Sejdic.

22             As regards the municipality of Mostar, the Chamber refers, for

23     instance, to the following evidence:  On the murder of non-Serb civilians

24     at the Vrapcici stadium, the Chamber heard Witness Redzep Karisik and has

25     received Exhibit Number P481.  As regards the execution of non-Serb


Page 16851

 1     civilians at the mortuary in Sutina, the Chamber heard Witness

 2     Fahrudin Bilic.

 3             Lastly regarding the municipality of Nevesinje, the Chamber

 4     refers, for instance, to the following evidence:  On the murder of men

 5     whose bodies were found at Teleca Lastva, the Chamber has heard

 6     Witness VS-1022 and has received Exhibit Number P523.

 7             Now, as regards counts 8 and 9, namely torture and cruel

 8     treatment as a violation of the laws or customs of war for which the

 9     Prosecution alleges detention and confinement under inhumane and brutal

10     conditions of non-Serb civilians, including forcible labour and sexual

11     assault and violence.

12             The Trial Chamber notes that the accused challenges the

13     allegations of -- of forced labour in the municipality of Vukovar.  The

14     accused admits furthermore the allegations of sexual violence in the

15     municipality of Zvornik but holds that these incidents took place at the

16     end of May until the beginning of June of 1992, according to the accused

17     therefore before the volunteers of the SCP or the SRS were present in the

18     area, which would mean that the accused could not be held responsible for

19     these sexual assaults.

20             The Chamber will now provide a few examples of some of the

21     sufficient evidence it bases its review on to consider this stage of the

22     98 bis proceedings that the crimes charged in counts 8 and 9 were in fact

23     committed in the various municipalities mentioned in the indictment.

24             As regards the municipality of Vukovar, the Chamber refers, for

25     instance, to the following evidence:  As regards detention and


Page 16852

 1     confinement in brutal and inhumane conditions of non-Serb civilians at

 2     the Velepromet warehouse, the Chamber heard witnesses Dragutin Berghofer

 3     and VS-051.  On detention and confinement under brutal and inhuman

 4     conditions of non-Serb civilians at the Ovcara farm, the Chamber heard

 5     witnesses Vojnovic and VS-016.

 6             I shall now make a break, because we need to have a break.  I

 7     have read approximately half of the Trial Chamber's decision.  We shall

 8     have a 30-minute break.  I would like the Registrar to turn off the

 9     air-conditioning which is above my head, because I will be frozen solid

10     before the end of the hearing otherwise, and I will be unable to speak.

11     My voice will then be totally frozen.

12             We shall now have a 30-minute break.

13                           --- Recess taken at 10.23 a.m.

14                           --- On resuming at 11.08 a.m.

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

16             Let me recall that I'm currently reading part of the oral

17     decision which relates to the second paragraph, counts 8 and 9.  I had

18     stopped when I spoke about the municipality of Zvornik.

19             Now, as regards the municipality of Zvornik, the Chamber refers,

20     for instance, to testimonies of VS-1012, VS-1013, VS-1064, and VS-1065,

21     and has received Exhibit numbers P307, P381 under seal, and P469 under

22     seal.

23             As far as the Sarajevo area is concerned, the Chamber refers, for

24     instance, to Witness VS-1055 and has received Exhibits P455 and P457.

25             As regards the municipality of Mostar, the Chamber refers, for


Page 16853

 1     instance, to witnesses Redzic Karisik and Fahrudin Bilic.

 2             Lastly, as regards the municipality of Nevesinje, the Chamber

 3     refers, for instance, to witnesses VS-1022 and VS-1051.

 4             Section three, as regards the crimes charged in count number

 5     12 -- in count 12, namely wanton destruction of villages and devastation

 6     not justified by military necessity as a violation of the laws or customs

 7     of war, the victims of which were non-Serbs.  The Chamber notes that the

 8     accused does not mention anything about the commission of these crimes

 9     but rejects any involvement of the SCP/SRS volunteers in the said crimes.

10             The Chamber will now provide some examples of the evidence it

11     uses at this stage of the 98 bis proceedings to consider that the crimes

12     charged in count 12 were, in fact, committed in the various

13     municipalities mentioned in the indictment.

14             As regards the municipality of Vukovar, the Chamber refers, for

15     instance, to witnesses Dragutin Berghofer, Nebojsa Stojanovic, VS-021 and

16     Exhibits P268, P278, and P526 under seal.

17             As regards the area of Sarajevo, the Chamber refers, for

18     instance, to witnesses VS-1111, and VS-1055.

19             As regards the municipality of Mostar, the Chamber refers, for

20     instance, to witness 92 quater Zoran Tot and to Witness VS-1067, as well

21     as Exhibits P843, P846, and P1051 under seal.

22             Lastly, as regards the municipality of Nevesinje, the Chamber

23     refers, for instance, to witnesses VS-1051, Ibrahim Kujan and

24     Goran Stoparic as well as Exhibits P483 under seal and P524.

25             With regard to the crimes alleged in count 13, namely destruction


Page 16854

 1     or wilful damage to institutions dedicated to education or religion of

 2     the non-Serb population as a violation of the laws or customs of war, the

 3     Trial Chamber notes that the accused's claim that these institution had

 4     been occupied for military purposes, were no longer protected by the

 5     Geneva Conventions.  In this respect the Trial Chamber notes that during

 6     the 98 bis hearing, the accused failed to mention any document or

 7     evidence in support of his claim.  The Trial Chamber also notes that

 8     there is evidence that there were cases of destruction whilst there was

 9     no armed formation around.

10             The Trial Chamber, for instance, refers to the testimony of

11     Witness VS-1055 as evidence of the fact.

12             The Trial Chamber recalls that in any case, the protection or the

13     protected status of a building dedicated to religion or education may not

14     be lost simply because there are right next to it military activities or

15     facilities.  Indeed, it is the use made of the premises and not their

16     location that determines whether the premises in question may lose their

17     protected status as this was reaffirmed on many occasions by this

18     Tribunal, for instance, in paragraph 310 of the Strugar judgement, in

19     paragraph 604 of the Naletilic judgement, and in paragraph 98 of the

20     Martic judgement.

21             The Trial Chamber will now provide some examples of evidence it

22     deemed sufficient at the 98 bis stage of the proceedings that crimes in

23     count 13 were indeed committed in various municipalities mentioned in the

24     indictment.

25             Regarding the municipality of Zvornik.  The Trial Chamber, for


Page 16855

 1     instance, heard expert Witness Andras Riedlmayer and witnesses Asim Alic,

 2     VS-037, and VS-038.

 3             Regarding Greater Sarajevo, the Trial Chamber heard, for

 4     instance, expert Witness Andras Riedlmayer, and witnesses VS-1055 and

 5     Safet Sejdic.

 6             Regarding the municipality of Mostar, the Chamber refers, inter

 7     alia, to 92 quater witness Zoran Tot, and expert Witness

 8     Andras Riedlmayer, as well as to exhibits P843, P1044, and P1045 and

 9     P1048.

10             Lastly, regarding the municipality of Nevesinje, the

11     Trial Chamber refers, inter alia, to expert Witness Andras Riedlmayer and

12     to witnesses Ibrahim Kujan, Vojislav Dabic, and to Exhibits P524 and P880

13     under seal.

14             With regard to count 14, looting of non-Serb public or private

15     property as a violation of the laws or customs of war as alleged in the

16     indictment.  The Trial Chamber notes that the accused does not challenge

17     the fact that there was looting, but he denies any involvement of SCP/SRS

18     volunteers and claims that he would have condemned such behaviour if it

19     had occurred.  The Trial Chamber will now provide examples of evidence it

20     deems sufficient at the 98 bis stage of the proceedings to find that the

21     crimes in count 14 were indeed committed in the various municipalities

22     mentioned in the indictment.

23             Regarding the municipality of Vukovar, the Trial Chamber refers,

24     inter alia, to witnesses VS-002, VS-016 and VS-027.

25             Regarding the municipality of Zvornik, the Trial Chamber refers,


Page 16856

 1     inter alia, to witnesses VS-1013, VS-038, VS-1105, and to Exhibits P68,

 2     P362, and P521 under seal.

 3             Regarding Greater Sarajevo, the Trial Chamber refers to witnesses

 4     VS-1111, Safet Sejdic, and to Exhibit P840.

 5             Regarding the municipality of Mostar, the Trial Chamber refers to

 6     VS-1067, to Witness Vojislav Dabic, and to Exhibits P880 under seal, and

 7     P1051 under seal.

 8             Finally, regarding the Nevesinje municipality, the Trial Chamber

 9     refers, inter alia, to witnesses Ibrahim Kujan and Vojislav Dabic, and to

10     Exhibits P524 and P880 under seal.

11             I'm now going to read out more slowly, because we are moving on

12     to an essential part of the Trial Chamber's decision.

13             The Trial Chamber in the sixth and last section of the instant

14     decision will look into the responsibility of the accused under the

15     heading of instigating.

16             In a preliminary fashion, the Trial Chamber wishes to answer to

17     the accused's argument that he could not be prosecuted before a criminal

18     court of law because the international criminal tribunals and their

19     jurisprudence did not yet exist at the time he gave his speeches.  The

20     Trial Chamber finds that this argument is unsustainable.  Indeed, the

21     Trial Chamber considers that the accused has a Ph.D. in law, is a former

22     assistant professor in political sciences at the University of Sarajevo

23     and that as such he was bound to know at the time relevant to the

24     indictment, he was bound to know that the prohibition to incite to

25     racial, ethnic, or religious discrimination had been enshrined and


Page 16857

 1     codified in international law, inter alia, in Article 7 of the Universal

 2     Declaration of Human Rights of the 10th of December, 1948; in Article 20,

 3     paragraph (2) of the International Covenant on Civil and Political Rights

 4     of 16th of December, 1966.  Article 4(a) of the International Convention

 5     on the Elimination of All Forms of Racial Discrimination of 21st of

 6     December, 1965, furthermore imposes on states to qualify or characterize

 7     as punishable offence, acts of incitement to racial discrimination.

 8             The accused was also bound to know that such acts had been

 9     punished at the end of the Second World War.  Indeed, speeches inciting

10     to discrimination on racial or political grounds had been punished as

11     crimes against humanity by the Nuremberg military tribunal in 1946 in the

12     Streicher decision.

13             The Trial Chamber is therefore of the view that the accused was

14     well aware at the time of the facts he's charged with that there had been

15     already at an international level a criminalisation, a codification into

16     law of incitement to national, racial or religious hatred through

17     propaganda or any other means.  The accused could also not ignore -- I'm

18     going slowly because this is really absolutely relevant.  He was bound to

19     know that the former SFRY had complied with the obligation to prohibit

20     and punish such discriminatory behaviour by adding Article 134, paragraph

21     1, to its domestic criminal code.  The latter code had been adopted by

22     the Federal Assembly at the session of the federal council held on the

23     28th of September, 1976, and was later published in the Official Gazette

24     of the 8th of October, 1976.  Anyone who is interested, it was issue 44,

25     and it came into force on the 1st of July, 1977.


Page 16858

 1             The initial wording of Article 134, when it was adopted in 1977,

 2     provided for the offence of incitement a maximum penalty of ten years' of

 3     imprisonment.  The Trial Chamber notes that this provision was later

 4     amended in 1990 and the maximum penalty reduced to five years' of

 5     imprisonment.

 6             The Trial Chamber finds, therefore, that the accused was aware at

 7     the time of the acts he is charged with that it had become, at national

 8     level, a federal criminal offence in the former Yugoslavia to incite to

 9     national, racial, or religious hatred through propaganda or any other

10     means against peoples and nationals present in the territory of the said

11     country.

12             International criminal tribunals and jurisdiction were created by

13     the Security Council only to replace domestic jurisdiction to punish acts

14     of genocide, war crimes, and crimes against humanity in a situation of

15     emergency in order to ensure international peace.  The principle of

16     nullum crimen sine lege is duly complied with.

17             In order to ascertain whether the accused may be held responsible

18     for the commission of crimes reviewed in part five of this decision, the

19     Trial Chamber must analyse the evidence on record and determine whether

20     this evidence is sufficient for a reasonable Trial Chamber to find that

21     the accused incited or instigated within the meaning of Article 7(1) of

22     the Statute to crimes being committed as alleged in the indictment.  In

23     order to do so, the Trial Chamber is going to analyse the evidence it has

24     received with regard to each of the three legal requisite elements of

25     instigation mentioned before, namely, firstly, the existence of one or


Page 16859

 1     several acts underlying the charge of instigation to commit the crimes

 2     alleged in the indictment.

 3             Secondly, the knowledge of the accused of the real likelihood

 4     that crimes would be committed further to his acts that were elements of

 5     instigation, and for the crime of persecution, his intent to bring about

 6     or induce the perpetration of the crime.

 7             And thirdly, the existence of a nexus between the acts of the

 8     accused and the crimes committed.

 9             The Trial Chamber wishes to stress, first of all, that it was not

10     able to at this stage of the proceedings to find that evidence on record

11     were blatantly void of credibility or incapable of belief.

12             First of all, with regard to the first requisite condition of the

13     test, namely the element of instigating, by using the word "instigated,"

14     the Prosecution in the indictment generally charges that the accused's

15     speeches, communications, acts, and/or omissions contributed to the

16     perpetrators' decision to commit the crimes alleged and this was

17     confirmed by the jurisprudence of this Tribunal.  Therefore, the

18     Trial Chamber took into account all the acts charged against the accused

19     that may have contributed to or otherwise influenced the decision-making

20     process that drove physical perpetrators to commit the crimes alleged in

21     the indictment.  The Trial Chamber thus took into account several acts

22     that can be attributed to the accused and that may have influenced the

23     physical perpetrators of the crimes alleged in the indictment.

24             Firstly, the fact that he promoted his nationalistic ideology by

25     any means possible.  For instance, the deportation of non-Serbs, be it


Page 16860

 1     directly or through his party the Serbian Chetnik Movement, SCP, and

 2     later the SRS party.

 3             Secondly, the systematic denigration of non-Serb populations.

 4             Thirdly, the spreading of a climate of fear among the Serb and

 5     non-Serb populations.

 6             Fourthly, the fact he encouraged the SCP/SRS supporters to

 7     volunteer, and once they were in the field, to -- of encouraging his

 8     supporters to bring about, to implement his nationalistic ideology by any

 9     means imaginable.

10             (a), with regard to evidence on promotion by the accused of his

11     nationalistic ideology by all means possible.

12             The Trial Chamber has a large amount of evidence that would make

13     it possible for a reasonable Trial Chamber at the 98 bis stage of the

14     proceedings to find that the accused promoted his nationalistic ideology

15     involving the commission of crimes, including the deportation of

16     non-Serbs either directly or through his party, first the SCP that had

17     been banned, and then through the SRS.

18             The Trial Chamber refers to Exhibit P1278, an article published

19     in the "Politika" daily on 9th of July, 1991, to the effect that the

20     accused had been barred from membership in the Serbian Philosophical

21     Society because on several occasions he had openly advocated violence and

22     hatred, ethnic hatred, as means purported to serve and realise, implement

23     the interests of the Serbian people.

24             The Trial Chamber has received Exhibit P1192, a transcript of a

25     press conference of the 20th of February, 1992, by the accused, which he


Page 16861

 1     published in one of his books; the Trial Chamber has received

 2     Exhibit P1293, published in the "Politika" newspaper on 2nd of March,

 3     1992; has received P685 under seal, a transcript of various press

 4     conferences by the accused between the 26th of March and the 16th of

 5     April, 1992, published in one of his books; the Trial Chamber has

 6     received P1324, a transcript of a press conference of the 5th of March,

 7     1992, by the accused, published in one of his books.  And they show how

 8     virulent the accused spoke, notably when he threatened that there may be

 9     a bloodbath in Bosnia.

10             The Trial Chamber also refers to Exhibit P1298.  That includes

11     also a "Politika" article of the 27th of March, 1992, referring to

12     violent utterances by the accused, who threatened that more blood might

13     be shed if the Muslim fundamentalists were intent on playing with fire.

14             The Trial Chamber refers to Exhibit P1200 that contains, among

15     others, a "Borba" article of the 28th of May, 1992, mentioning some

16     violent words of the accused, notably at an SRS rally in May 1992 in

17     which he summed up the territorial conquests of the Serbian force and

18     insisted on the fact that more still had to be done by "cleansing" the

19     left bank of the Drina River.

20             The Trial Chamber has also received Exhibit P1180, an interview

21     by the accused to the Novi Sad television in June 1991, published in one

22     of his books, in which the accused stated that he had extremely powerful

23     strongholds in north-eastern Bosnia.  More specifically he said that the

24     mere fact that in some places the Croats and the Muslims had not been

25     sleeping in their homes for days demonstrates that the SRS/SCP was not as


Page 16862

 1     insignificant as it purports to be.  The Trial Chamber further refers to

 2     Witness Nebojsa Stojanovic, who, in prior witness statements admitted as

 3     P526 and P528, testified that the accused thought that Croatia had to be

 4     ethnically cleansed and that the borders of Greater Serbia had been to be

 5     reclaimed.

 6             Witness VS-016 stated, page 11120 of the French transcript, that

 7     the accused said as follows:  "Not one Ustasha must leave Vukovar alive,"

 8     at a political rally in Vukovar around mid-November 1991, outside the

 9     headquarter of the Leva Supoderica.

10             Witness VS-033, pages 5542 and 5543 of the French transcript,

11     testified that when he was visiting on the ground, the accused urged the

12     volunteers to kill all of the enemies.  The Trial Chamber further refers

13     to witness Vesna Bosanac, page 11404 of the French transcript, testified

14     that the accused said on Serb radio that Vukovar had to fall and all its

15     buildings razed to the ground.  For her, it meant that the accused was

16     instigating the members of the Serb forces to totally destroy the town

17     and give them free rein to massacre civilians as they pleased.

18             Finally, the Trial Chamber refers to Witness VS-004, page 3376 of

19     the French transcript, who testified that the accused held inflammatory

20     and virulent, unrestrained speeches.

21             This would be relating to evidence on systematic denigration of

22     non-Serb population by the accused.  The Trial Chamber has evidence that

23     would make it possible for a reasonable trier of fact to conclude at this

24     stage that the accused denigrated, in a systematic fashion, Croats,

25     Muslims and other non-Serb population through his speeches, by, for


Page 16863

 1     instance, calling them "Ustasha" when he spoke of Croats, calling Muslims

 2     "Balija."  These are extremely degrading and pejorative terms.

 3             With regard to the denigration of Croat populations, the

 4     Trial Chamber has received Exhibit P34, an interview by the accused to

 5     "Politika" in which it can be read the following:

 6             "How can anyone negotiate with Ustashas?  Haven't you seen that

 7     today there are only Ustashas in the Croatian population?  There are only

 8     very few exceptions."

 9             Similarly, in Exhibit P1194, the accused was stating that there

10     were only, and I quote, 16 good Croats, 10 plus 6, 16, which had the

11     right to stay in Serbia.  The rest had to be expelled from Serbia.

12             The Trial Chamber can also mention Exhibit P298.  It is a

13     Croatian television footage aired on November 7, 1991, as well as

14     Exhibit P1201 corresponding to the transcript of an interview of the

15     accused for the TV show "Politika," broadcast on June 12, 1992.  In these

16     sequences, the accused is referring to Vukovar and Hrtkovci as Ustasha

17     strongholds where you can find the worst Ustashas.

18             Another exhibit, Exhibit P1211 corresponding to the transcript of

19     a press conference given by the accused on January 13, 1993, published in

20     one of his books in which the accused speaks, among other things, of an

21     Ustasha-ruled Croatia.

22             Furthermore, Witness VS-007 testified at page 6072 of the French

23     transcript that the accused had used the term "Ustashas" in front of

24     bodies of Croats who had been killed during combat, and at that moment he

25     said they have -- those bodies have to be burned so they don't foul up


Page 16864

 1     the air and contaminate us.

 2             The Trial Chamber also refers to Witness Goran Stoparic who

 3     testified on page 2338 of the French transcript that the accused was

 4     generally calling all Croats, Ustashas.

 5             Finally, Witness VS-2000 can also be mentioned at pages 13994 to

 6     13995 of the French transcript, because there he mentions the call for

 7     vengeance delivered by the accused against Balijas during the speech

 8     delivered in Mali Zvornik in 1992.

 9             I stop for a minute because it's still freezing in this

10     courtroom.

11             With regard to the fact that the accused would have spread a

12     climate of fear among the civilian population.  The Trial Chamber has a

13     number of pieces of evidence that could lead any reasonable trier of fact

14     to infer at this stage that the accused through his speech spread a

15     climate of fear among the civilians.  For example, the Trial Chamber has

16     Exhibit P153 corresponding to documents published in the daily

17     "Velika Srbija," issue 9 of 1991, and re-published in one of the

18     accused's books as well as Exhibit P179, which is a video of a speech

19     given by the accused in 1991 in which the accused is referring to the new

20     Ustasha leaders in Croatia who are once again implementing a genocidal

21     policy aimed at the Serbs.

22             The Trial Chamber can also mention Exhibit P35 corresponding to a

23     speech made by the accused on June 4, 1991, in which he said, and I

24     quote:

25             "All those who do not have a clear conscience have good reasons


Page 16865

 1     to be afraid of us, the Serbs.  They're quite right to fear us.  We, the

 2     Serbs, throughout history, we forgot too much.  We forgave too much.  We

 3     told the Croats that if they ever resumed their genocidal activities

 4     against the Serbs, not only would we avenge every victim, but we would

 5     also settle our scores and settle the scores of the victims of

 6     World War I and World War II."

 7             In Exhibit P62, a documentary film broadcast by the BBC and

 8     called "Death of Yugoslavia" aired in March 1995, you hear the accused

 9     say, and I quote:

10             "We, the Serbs, are in danger.  Croat fascist hordes are

11     attacking Serb women, Serb children.  The Croat fascist hordes are

12     planning the genocide of the Serbs."

13             The Trial Chamber can also mention Witness Anthony Oberschall who

14     testified on page 1999 of the French transcript that the terms used for

15     propaganda do not have the same meaning and are used differently in

16     nationalistic speeches than in normal speeches.  Furthermore, he also

17     added on page 2123 of the French transcript that the context is

18     absolutely essential to interpret the statement.  According to this

19     witness, it is -- it might be allowed to advocate violence in a peaceful

20     situation, but, however, this is absolutely banned in a situation, in a

21     context where civilians are being killed.

22             The Trial Chamber can also mention Witness VS-061.  During his

23     testimony on page 10036 of the French transcript, he said that he --

24     during the speech in Hrtkovci, he heard that the -- the accused was in

25     favour of measures of retorsion against the Croats.  All this is


Page 16866

 1     corroborated by Katica Paulic who testified at pages 11904 to 11909 of

 2     the French transcript that during the Hrtkovci speech, the accused had

 3     said that Croats and Hungarians had to leave and that the crowd had

 4     reacted very favourably to this speech by chanting, and I quote, "We will

 5     kick you out, Ustashas."

 6             According to this witness, non-Serbs didn't even dare go to work

 7     after this speech.

 8             (d) Finally regarding the way the accused encouraged the

 9     volunteers of the SRS/SCP so that they would volunteer and that once on

10     the field they would achieve his nationalistic ideology by any means, the

11     Trial Chamber has heard evidence that would lead any reasonable trier of

12     fact to conclude at this point of time that the accused directly

13     encouraged his supporters to volunteer, to go and fight, by all means to

14     defend his nationalistic ideas and promote Greater Serbia, which could

15     only come about through the commission of crimes, notably deportation of

16     non-Serbs.

17             The Trial Chamber, for example, has Exhibit P1074 in which

18     Witness Zoran Rankic says that before the volunteers left for the front,

19     the accused would encourage them by telling them be -- "become heroes."

20     "Become heroes," I repeat, and "Fight for Greater Serbia."

21             The Trial Chamber can also mention document P217 in which the

22     accused appoints 16 Chetniks as Vojvodas on May 13, 1993.  There's also

23     document P255, a video showing the accused appointing Vojvoda to 18

24     Chetniks on 31 March 1993, and P218 which also corresponds to another

25     appointment by the accused of several Chetniks as Vojvodas on March 20,


Page 16867

 1     1994.

 2             The Trial Chamber also has the testimony of Goran Stoparic, a SRS

 3     volunteer, according to which, pages 2337 to 2339 of the French

 4     transcript, the accused visited the members of the Leva Supoderica unit

 5     in Vukovar, in the presence of officers of the 1st Brigade of the Guards.

 6     According to this witness, the accused had come to encourage this unit

 7     made up of volunteers of the SRS/SCP, and Goran Stoparic was very glad

 8     that he had visited them on the front line.

 9             The Trial Chamber can also mention Witness VS-002, according to

10     which -- to whom on pages 6556 and 6557 of the French transcript, the

11     accused was the only political leader who came to see them in Vukovar, a

12     visit for which the fighters were extremely grateful.

13             The Trial Chamber can finally mention Witness Vesna Bosanac on

14     page 11422 of the French transcript.  She said that at -- in Vukovar she

15     heard the accused encourage soldiers, be it volunteers or members of

16     other units, and she said that the accused was the ideological leader and

17     people would do what he said.

18             (2), regarding the second condition for instigation relating to

19     the awareness the accused had of the real likelihood that crimes would

20     result from his instigation as regards crimes referred to in counts 4, 8,

21     9, 10, 11, 12, 13, and 14 and relating to his criminal intent to provoke

22     or induce the commission of crime regarding persecution as alleged in

23     count 1, the Trial Chamber has an amount of evidence that could lead any

24     reasonable trier of fact to conclude is that the accused continued with

25     his violent propaganda even though, (a), he was aware of the influence he


Page 16868

 1     had on Serbian public opinion in general and on his supporters and

 2     volunteers of the SCP/SRS more specifically.

 3             (b) He was aware that there was a war waging at the time and that

 4     this made his instigation extremely dangerous.

 5             (c) He was aware that in times of war crimes are committed.

 6             (d) He was aware or could not ignore the notorious criminal

 7     history of some of these Serbian volunteers and therefore the very high

 8     risk that these volunteers could -- would commit crimes of war once given

 9     weapons and in -- with this war raging.

10             (e) He was fully aware of what was happening on the ground and

11     the fact that crimes were being committed against civilian populations in

12     the combat zones where the volunteers of the SCP/SRS were sent.

13             (f) He had the mens rea to entice his listeners, and

14     particularly, his volunteers into persecuting non-Serb population for

15     political and religious reasons.

16             Moving to (a).  First, regarding the awareness that the accused

17     had of the influence he had on Serb public opinion in general, on the

18     supporters of his ideology and volunteers of the SCP/SRS in particular.

19     I will now develop what has been mentioned earlier, and this will take

20     some time.

21             The Trial Chamber here refers itself to Exhibit P1337.  It is the

22     foreword written by the accused on September 24, 2002 and published in

23     his book "Ideology of Serbian nationalism."  In this foreword the accused

24     states and I quote:

25             "Passive spectators are all potential fighters.  You only need to


Page 16869

 1     enlighten them, to teach them, to give them a nationalist orientation, to

 2     raise their patriotic awareness and to give them the love of the land, of

 3     the homeland.  Propaganda is based on the fact that -- that a great

 4     majority of people naturally are ready to gullibly believe everything

 5     they read, hear, or see on television."

 6             This can be found in the accused's book.

 7             In Exhibit P1264, which corresponds to Articles of the daily

 8     "Velika Srbija" dated 15 August, 1990, and reproduced in one of the

 9     accused's book, he says on page 25, and I quote:

10             "We now have a very powerful weapon in our hands, the daily

11     'Velika Srbija'" which proves that the accused was well aware that the

12     circulation of his ideologies through this daily would have a very strong

13     impact on the Serbian public opinion and more --

14             THE ACCUSED: [Interpretation] Mr. President, I had to intervene

15     here, because we have an interpreter here who gives false interpretation,

16     and this was a good time to intervene when he said that we had powerful

17     army.  You didn't say powerful army.  You said powerful weapon and that

18     that weapon was the Greater Serbia.  You are bringing this interpreter on

19     purpose, this interpreter against whom I have intervened a number of

20     times.  I have listened to everything you have been saying so far with

21     great enjoyment, and this overjoyed me, but here I had to intervene

22     because this is a bit too much now.

23             JUDGE ANTONETTI: [Interpretation] Let me remind the interpreters

24     that they have to be -- I know it's a very difficult job, but they have

25     to be as close as possible to the French that's being read.  A weapon is


Page 16870

 1     not an army, and so forth and so on.

 2             Let me backtrack a little, which -- so that I can read again what

 3     I read properly in French and was misinterpreted.

 4             In -- in Exhibit P1264 corresponding to Articles of the daily

 5     "Velika Srbija" of August 15, 1990 and reproduced in one of the books of

 6     the accused, the accused says on page 25, and I quote, and I am quoting

 7     exactly what I read earlier:

 8             "We now have a powerful weapon in our hands, the daily

 9     'Velika Srbija,'" which shows that the accused was aware that the

10     circulation of his ideology through this daily would have a very strong

11     impact on Serbian public opinion and more especially on the volunteers of

12     the SCP, and later on the volunteers of the SRS.

13             In Exhibit P1220 is an interview of the accused by a Japanese

14     journalist, dated May 18, 1993, and printed in one of the books of the

15     accused.  On page 2, the accused says that he has a great political

16     influence in Bosnia and thousands of Serbian volunteers listen to him and

17     that he has influence over the thousands of Serbian fighters and that

18     should there be any foreign military intervention, his influence would

19     only be greater.

20             On page 12 of the same document, P1220, the accused recognises

21     that his party is extremely popular and says that this explains why he is

22     so popular, especially since he always speaks his mind, contrary to other

23     politicians.

24             Similarly, the video footage corresponding to items P70 and P339

25     illustrate the popularity of the accused and the effect his speeches used


Page 16871

 1     to have his on listeners in general and notably on his volunteers.

 2             Furthermore the Trial Chamber can mention witnesses

 3     Nebojsa Stojanovic, paragraph 6 of his preliminary statement admitted as

 4     P527; Goran Stoparic, pages 2442 and 2443 of the French transcript;

 5     VS-016, pages 11120, 11171 and 11181 of the French transcript;

 6     Aleksa Ejic, page 10343 of the French transcript or VS-061, page 9924 of

 7     the French transcript, in light of which it appears that the words

 8     uttered by the accused had a great impact on those listening, and hearing

 9     them, hearing these words.

10             Now, (b) -- Judge Lattanzi asks me to slow down.

11             So (b), regarding the awareness of the accused as far as the fact

12     that there was a war raging at the time.  Given the different -- all the

13     evidence already mentioned in this decision, the Trial Chamber will only

14     give one example for this regarding the conflict-ridden background of

15     these crimes.  Exhibit P1205 is a transcript of an interview made by the

16     accused for the Pale TV station, aired in September 1992, in which the

17     accused states on page 4 about the war in Bosnia that it is both a

18     religious and a civil war.

19                           [Trial Chamber confers]

20             JUDGE ANTONETTI: [Interpretation] I will now continue, and we

21     will soon have a break.

22             (c) Regarding the fact that the accused was aware that in times

23     of war crimes are committed.

24             The Trial Chamber will not expound on this since the accused is

25     not challenging the fact and even admitted this during the 98 bis hearing


Page 16872

 1     at pages 16645 and 16658 of the French transcript.

 2             (d), regarding the fact that the accused was aware of the

 3     criminal record of a number Serbian volunteers and their -- these

 4     volunteers, once equipped with weapon, could very well commit crimes of

 5     war.

 6             The Trial Chamber has evidence which would lead any reasonable

 7     trier of fact to conclude that the accused was aware of the criminal past

 8     of some of the volunteers or at least could not ignore this criminal

 9     past.

10             In this respect, the Trial Chamber mentions Exhibit P836, which

11     is the statement of Matija Boskovic, a 92 quater witness.  In this

12     statement, the witness says that when the war started, criminals were

13     released and joined volunteer units.

14             According to Witness Zoran Rankic, paragraph 35 of his

15     preliminary statement, Exhibit P74, it was public knowledge at the time

16     that the authorities were releasing people from gaol and that the SRS war

17     headquarters never checked whether the volunteers that the SCP/SRS were

18     sending to the front had any criminal records.  According to this

19     witness, this had no importance for the accused.

20             I will -- we will have our break in a minute.  It will be a

21     20-minute break, and we will resume at 12.30.  I will still have ten

22     pages to read of this decision, then I will start reading the beginning

23     of my opinion.  We will stop around 1.30 for an hour break so that the

24     accused and everyone in the room can have lunch, and then we can resume

25     the reading at 2.30, nonstop to 7.00, hoping to finish earlier, so that


Page 16873

 1     my opinion can be fully read.

 2             This being said, Judge Harhoff just told me that in the

 3     afternoon -- no, obviously he can stay.

 4             Mr. Seselj, we're going to have a break, so please be brief.

 5             THE ACCUSED: [Interpretation] Now that you have offered me lunch,

 6     I thought that you meant it for real, so I will expect that I receive a

 7     proper lunch and not just a bagged lunch which wouldn't be fit for a pig,

 8     and this is something that I normally receive from the Detention Unit.

 9     When you said lunch, I expect to receive something that you yourself

10     would eat and everybody else here.  Otherwise, you can retract your offer

11     so that everybody knows that I will be left without lunch today.

12             JUDGE ANTONETTI: [Interpretation] Mr. Seselj, most of the time

13     the three Judges on this Bench, I will repeat this later, they usually

14     sit on two trials, and usually for lunch, you know, we just have a glass

15     of water.

16             We'll have a break for 20 minutes.

17                           --- Recess taken at 12.13 p.m.

18                           --- On resuming at 12.41 p.m.

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

20     First, let me tell you for that for administrative reasons I told you

21     that we will have an hour break for lunch, but we'll have an hour and a

22     half.

23             Secondly, I was told that the interpreters cannot work more than

24     six hours in a row, and because of this they cannot work any longer than

25     six hours at a time.  Furthermore, because of the financial resources in


Page 16874

 1     this Tribunal, you know that this Tribunal is on its way -- is going to

 2     finish, and because of that we do not have an additional team of

 3     interpreters.  Therefore, once we will have finished with the six hours

 4     of interpretation, we will as to have and we will resume tomorrow as of

 5     2.15.  Therefore, I will be able to finish the ten pages left in this

 6     decision, then start to read the beginning of my opinion.  We will resume

 7     this afternoon, and once the six hours are up, we will stop for the day.

 8             I will continue reading, page 40.

 9             (e) Finally, regarding the fact that the accused was aware of

10     what was happening on the ground and aware of the crimes committed in the

11     combat zones where the volunteers of the SRS/SCP were sent.  First as to

12     what the accused knew about what was happening on the ground.  The

13     Chamber can use the testimony of Goran Stoparic, pages 2337 to 2340 of

14     the French transcript; of Mladen Kulic, page 4455 of the French

15     transcript; Witness VS-002, pages 6555 and 6556 of the French transcript;

16     VS-04, pages 3413 of the French transcript; and page VS-007, pages 6069

17     and 6070 of the French transcript which all address visits made by the

18     accused to the field.

19             Similarly, for example, in Exhibit P1207, corresponding to

20     interviews of the accused, dated November 26, 1992, and printed into one

21     of his books, in Exhibit P1204 corresponding to an interview of the

22     accused of September 1992, also printed in one of his books, and in

23     Exhibit P1221 corresponding to an interview of the accused dated May 21,

24     1993, also printed in one of his books, we find a description of three

25     visits and inspections by the accused of SCP/SRS units headed by the


Page 16875

 1     three following Vojvodas:  Branislav Gavrilovic, Vasilije Vidovic, as

 2     well as Slavko Aleksic.

 3             Now, as regards the awareness the accused had of the crimes

 4     committed in the combat zones where the volunteers of the SCP/SRS were

 5     present.  The Trial Chamber can quote, for instance, Witness VS-033 who

 6     stated on pages 5524, 5525, 5529 and 533 -- 5531 of the transcript in

 7     French that in Vocin, Novacic had discovered that criminals were present

 8     among the volunteers and had complained about it to the Main Staff of the

 9     SRS.  This witness, in addition, ascertained that Novacic had telephone

10     contacts with the representatives of the war headquarters of the SRS

11     every two to three days or he went himself to Belgrade and reported

12     directly to the accused.

13             The Chamber can also quote Exhibit P1191 which is a press

14     conference of the accused on the 23rd of January, 1992, and reproduced in

15     one of his books in which the accused indicates that his volunteers were

16     in permanent contact with the leadership of the SCP/SRS and forwarded

17     information from the front line.  The Chamber holds that the evidence it

18     has could enable a reasonable Judge to infer that the accused knew or

19     could not ignore that crimes had been committed in the combat areas where

20     the volunteers recruited by the SCP/SRS had been sent.  Accordingly, the

21     Trial Chamber holds that it has sufficient evidence at this stage to

22     allow a reasonable Judge to conclude that the accused was aware of the

23     likelihood of the crimes being committed following these acts of

24     instigation.

25             (f), as regards the intent of the accused to provoke or entice


Page 16876

 1     his audience to persecute the non-Serb population on political or

 2     religious grounds, the Chamber refers to first of all to the evidence

 3     mentioned in the above on systematic denigration of the non-Serb

 4     population by the accused and on the promotion of the accused of a

 5     nationalistic view by the commission of these crimes mentioned in the

 6     above.  The Chamber then refers to the various evidence relating to the

 7     spreading by the accused of a climate of fear among the civilian

 8     population.  The Chamber holds that the accused, through his speeches,

 9     instilled this fear with the aim of provoking the Serbs, volunteers or

10     civilians, to persecute the Croats amongst others, to defend the

11     so-called genocidal policy against the Serbian people established by the

12     Croat leaders at the time.

13             In this.

14             Regard, the Chamber has, for instance, the testimony of

15     Katica Paulic, who recounted on page 11904 of the transcript in French

16     that the accused at a rally in Hrtkovci on the 6th of May, 1992, took the

17     floor and singled out Serb members in the audience from other ethnic

18     communities and by disseminating an anti-Croat feeling.  According to

19     this witness, on page 11905 of the transcript in French, the words of

20     accused disseminating his discriminatory intent galvanised the people in

21     the audience, who then started shouting, inter alia, "Ustasha, we will

22     kick you out.  We will kick you out, Ustasha."  Then Aleksa Ejic

23     indicates, on page 10343 of the transcript in French, that the crowd on

24     that day gave the accused an ovation when he hinted that the Croats

25     should return to their nice homeland.


Page 16877

 1             The Chamber may also rely on Exhibit P548 which is a note from

 2     the Sremska Mitrovica state security department centre testifying to the

 3     fact that the accused had taken the floor whilst the crowd was agitating

 4     and spouting slogans such as, "Ustasha out.  This is Serbia.  There is no

 5     place for Croats in Serbia."

 6             The Chamber refers to the prior statement of Witness

 7     Jelena Radosevic, also admitted under Exhibit P580, in which the latter

 8     states that the accused had come to Vocin at the end of November and the

 9     beginning of December 1991 to fuel tensions with a view to speeding up

10     the departure of the Croats from the town.  The Chamber holds that this

11     visit by the accused is part of a campaign of persecution against the

12     non-Serb population as mentioned, amongst others, by the witness Fadil

13     Banjanovic, VS-1064, and VS-1066.

14             The Chamber can also quote Exhibit number P547 that concerns the

15     speech of the accused in Hrtkovci and reproduced in one of his books in

16     which he refers to the Ustashas and calls for the expulsions of non-loyal

17     Croats because there is no place for them in Srem.  He continues by

18     saying that if they did not leave of their own free will, they would be

19     taken by force and put on board buses until the borders or up to the

20     borders of the Serb territory.  This scenario mentioned by the accused

21     implies the participation of the volunteers and Serb civilian population

22     to -- in the -- sorry in the accomplishment of this criminal purpose.

23             Lastly, the Chamber noted Exhibit P1197, which is a transcript of

24     a televised interview of the accused given to TV studio and broadcast on

25     the 8th of April, 1992, which was reproduced in one of the books of the


Page 16878

 1     accused.  The accused asserts in that book that he has never met a good

 2     Croat and that the Croats are the enemies of the Serbs and the worst

 3     criminals ever.

 4             On several occasions, he uses the word "Ustasha," which is a

 5     derogatory term, and proclaims that the expulsion of the Croats must be

 6     done once and for all, for if they stayed, the situation would be all the

 7     more unstable.

 8             I shall now move on to my third point.  As regards the third

 9     condition of instigation, namely the existence of a substantial nexus

10     between instigation and the crimes, the Trial Chamber has received

11     evidence allowing a reasonable trier of fact to conclude that the accused

12     exercised a determining influence over the perpetrators of the crime

13     because of the recruitment and the sending of volunteers through the

14     SRS/SCP in the localities in which they were and were therefore able to

15     commit the crimes alleged in the indictment, and because of the moral

16     authority he exercised over his volunteers, which was considerable, and

17     on all the sympathisers of his nationalistic ideology, since some men

18     proclaimed they were Seselj's men or Chetniks, the Trial Chamber notes in

19     this regard that evidence indicates that the SCP/SRS had not taken the

20     trouble to train the volunteers in combat or humanitarian law matters

21     before sending them off to join the army.

22             The Chamber feels that the audience of the accused was broader

23     and encompassed not only the volunteers that had been recruited by the

24     SCP/SRS but also all the sympathisers of his nationalistic ideology.

25     However for -- in light of judicial economy, the Trial Chamber will


Page 16879

 1     provide examples of this evidence that testify to that:  (a), the

 2     recruitment and sending volunteers on the front line by the SCP/SRS

 3     headed by the accused; (b), the considerable moral authority of the

 4     accused over these volunteers; and lastly, (c), the commission of crimes

 5     in the indictment by volunteers recruited by the SCP/SRS or sympathisers

 6     of this organisation.

 7             I shall now review these last sections (a), (b), (c), in detail.

 8             Now, (a), as regards evidence pertaining to the recruitment and

 9     the sending of volunteers on the front line by the SCP/SRS headed by the

10     accused.

11             The Chamber can, for instance, quote Exhibit P1233 which is an

12     interview given by the accused to Radio Loznica on the 10th of November,

13     1993, and reproduced in one of his books in which the accused talks about

14     the way in which he contributed to the attack on Zvornik.  He states, and

15     I'm going to quote the words of accused:

16             "You should know that our volunteers have fought together with a

17     special unit of the Serb Ministry of the Interior and it is thanks to

18     this coordinated action that Zvornik was liberated on time."

19             Likewise, in Exhibit P342 which is a video of an interview by the

20     accused, dated 1994, the accused states that he sent at least 30.000

21     armed volunteers on all the battle-fields where the Serbian people was

22     fighting.

23             In Exhibit P30, which is an excerpt from a BBC documentary,

24     "Death of Yugoslavia," broadcast in March 1995, in which the accused is

25     interviewed, we see the accused saying, we hear the accused saying, I


Page 16880

 1     quote:

 2             "In 1991, we started organising the volunteers in a big way and

 3     sending them on the front lines that had already been drawn up, including

 4     in Eastern Slavonia."

 5             The recruitment of volunteers by the SCP/SRS and sending on the

 6     front line from October 1991 onwards is also mentioned by Witness VS-033

 7     who specified during his testimony on page 5505 that he had decided to

 8     volunteer for the SCP/SRS, which was sending volunteers on the front

 9     line.  The witness also indicated that registration as a volunteer

10     automatically meant becoming a member of the Serbian Radical Party.

11             Witness VS-038 indicated on pages 10195 and 10196 that the --

12     that recruitment was done through propaganda in the media where the

13     representative of the SRS, including the accused, called on the patriots

14     to defend the Serbian people.

15             Witness VS-0158 also explained in his prior statement, tendered

16     into evidence under Exhibit number P1053 under seal, that at the

17     beginning of 1995 he had been visited in the cafe where he worked by

18     several members of the SRS and that these men had asked him to join a

19     group of the SCP/SRS volunteers.  The witness accepted and decided to

20     join the SRS.

21             (b) As regards the moral authority.  The considerable moral

22     authority the accused had over his volunteers.  The Chamber has evidence

23     which would allow any reasonable trier of fact to conclude that the

24     accused exercised a determining influence over the SCP/SRS volunteers

25     sent off to the front line.  In addition to the evidence relating to the


Page 16881

 1     overall influence of the accused on the SRS and SCP sympathisers and the

 2     volunteers recruited by SCP/SRS, already mentioned in the second part of

 3     the second condition for instigation the Chamber can also quote

 4     Witness Fadil Kopic who stated on page 5913 of the French transcript that

 5     the SCP/SRS volunteers viewed the accused as a god.

 6             Furthermore, the Chamber can also quote Witness VS-0092 who

 7     stated during his testimony before the Chamber on page 6557 of the French

 8     transcript concerning the accused, "He was a Serb Vojvoda.  We would

 9     never have dismissed his orders."

10             Lastly, (c), as regards the commission of crimes by the SCP/SRS

11     volunteers or sympathisers of the accused's ideology, the Trial Chamber

12     has evidence which would entitled a reasonable trier of fact to conclude

13     that the volunteers recruited by SCP/SRS committed the alleged crimes in

14     the various counts of the indictment.  We shall address these counts each

15     in turn.

16             Count 4, murder.  The Chamber may quote, for instance,

17     Witness VS-016 who mentioned during his testimony before the Chamber on

18     page 11137 of the French transcript murders committed in Ovcara by

19     several volunteers recruited by the SCP/SRS identified by name.  Or

20     Witness VS-007 who indicated on page 6103 and 6104 of the French

21     transcript that he heard that volunteers recruited by the SCP/SRS, namely

22     the Kinez and the Kameni groups, who, for the most part, were very

23     dangerous and brutal, participated in the executions of non-Serb

24     civilians in Ovcara.

25             The Chamber remarks that the presence in the municipality of


Page 16882

 1     Vukovar of a unit of volunteers of SCP/SRS placed under the command of

 2     Milan Lancuzanin aka Kameni is confirmed by Witness VS-002, on pages 6535

 3     and 6536 of the French transcript.

 4             Counts 8 and 9, on torture and cruel treatment.  The Chamber can,

 5     for instance, quote witness VS-1013, who on page 5248 of the French

 6     transcript states that Cele, the head of a Seselj's men unit mistreated

 7     and killed detainees.  The Chamber notes that Exhibit number P217 says

 8     that Cele was a volunteer that had been recruited by the SCP/SRS, who was

 9     proclaimed Vojvoda by the accused on the 13th of May, 1993.

10             Witness VS-1013 mentions also on page 5257 of the French

11     transcript that he heard that sexual assaults committed at the cultural

12     centre of Celopek in the municipality of Zvornik had been committed by a

13     volunteer nicknamed Repic and his team.

14             The Chamber notes that Witness Asim Alic on pages 7002 to 7004,

15     7007 and 7022 of the French transcript confirmed the presence of

16     volunteers recruited by the SCP/SRS in the municipality of Zvornik who

17     had substantial military equipment and identity papers showing that they

18     were members to the SCP -- they were members of the SCP and/or the SRS.

19     Among these people were two brothers originating from the suburbs of

20     Belgrade called Vukovic and nicknamed Repic, as regards the last one, the

21     youngest one.

22             Counts 10 and 11 relating to deportation and forcible transfer as

23     an inhumane act.  The Chamber refers for instance to Aleksa Ejic who on

24     page 10382 recounts that Rade Cakmak, who introduced himself as a member

25     of the SRS, participated in acts of violence against the inhabitants of


Page 16883

 1     Hrtkovci and settled with his family in a house belonging to a Hungarian.

 2             Fourth point, count 12, wanton destruction of villages and

 3     devastation not justified by military necessity.  The Chamber can quote

 4     Witness VS-1067, who states on page 15287, 15315, 15316 of the French

 5     transcript, as in paragraph 78 of his prior statement admitted under

 6     Exhibit number P1051 under seal -- under -- that a group of -- of 50 or

 7     60 men who introduced themselves as members of the SRS and that had as

 8     their main commander Vojislav Seselj, arrived in April 1992 in Bjelusine,

 9     in the municipality of Mostar and that in April 1992 this group went

10     towards the village of Topla, located a kilometre and a half away from

11     Bjelusine, that he saw Seselj's men driving the population out and

12     looting the houses and burning them afterwards.  The Chamber can also

13     quote 92 quater witness Matija Boskovic, a volunteer member of the

14     SCP/SRS who indicates in paragraph 27 of his prior statement admitted

15     under Exhibit number P836 that his unit burnt some houses in the village

16     of Dugi Dio, located in the municipality of Zvornik.

17             Fifth point, count 13, destruction or wilful damage of

18     institutions dedicated to education or religion.  The Chamber can quote

19     Witness VS-1055, for instance, who states on pages 7805, 7810, 7812, 7846

20     of the French transcript that at the end of March or at the beginning of

21     April, 1992, armed group headed by Vasilije Vidovic, nicknamed Vaske,

22     were present in the town of Ilijas in the area of Sarajevo.  These men

23     were wearing various insignia, traditionally the hallmark of a Chetnik

24     organisation.  Skulls and bones, cockade, fur hat, the traditional Serb

25     headgear or sajkaca.


Page 16884

 1             The witness in addition recognised the insignia of the SRS on the

 2     headgear and the subara of Vaske's men.  In addition, he said that he had

 3     heard from the Serbs living in Ilijas that Vaske was one of the men

 4     responsible for the destruction of the religious buildings in the town.

 5     The Chamber can also quote 92 quater witness Mujo Dzafic, who in

 6     paragraph 24 of his prior statement, admitted under Exhibit Number P284,

 7     that Vaske destroyed all the religious buildings, mosques, and churches

 8     around Ilijas, including the Stari Ilijas mosque.

 9             Six point, count 14, plunder of public and private -- or private

10     property.  The Chamber may quote Witness Nebojsa Stojanovic, who in

11     paragraphs 15 to 16 of his prior statement, admitted under Exhibit P57,

12     that he saw the looting of the houses in Desna Supoderica by volunteers

13     recruited by the SCP/SRS who among other things found it amusing to

14     defecate everywhere in the houses.

15             The Chamber can also quote 92 quater witness Mujo Dzafic, who

16     states in paragraph 31 of his prior statement, admitted under P840, that

17     a short while before the end of the war, Vaske and his men looted all the

18     companies in Ilijas by taking away building materials which they then

19     loaded on lorries.  The witness saw Vaske taking charge of a lorry which

20     was filled with stolen goods.

21             Fifth point, count 1, persecution on political, racial, religious

22     grounds.  The Chamber refers inter alia to all the aforementioned

23     evidence regarding the other counts mentioned in the indictment that

24     constitute some of the underlying acts of persecution committed on

25     religious and political grounds with the participation of the accused.


Page 16885

 1     It is therefore not necessary to provide further evidence that the

 2     Chamber has relating to this count that enable us to establish a nexus

 3     between instigation and this crime.  Accordingly the Trial Chamber feels

 4     that there is sufficient evidence for a reasonable trier of fact to

 5     conclude at this stage that there is a substantial nexus between the acts

 6     of instigations by the accused and the crimes committed.

 7             Conclusion.

 8             In light of the review of evidence on the commission of crimes on

 9     the participation of the accused in such a commission, through

10     instigating acts and on the nexus between the crimes and the instigating

11     acts of the accused, the Chamber holds that there is sufficient evidence

12     at this stage to meet the requirements of Rule 98 bis of the Rules for a

13     reasonable trier of fact to convict the accused beyond all reasonable

14     doubt for having instigated the commission of all the crimes alleged in

15     the nine counts of the indictment.

16             The Chamber in its majority, Judge Antonetti dissenting, wishes

17     to recall that this conclusion does not require the Chamber at this stage

18     to review all other forms of responsibility alleged in the indictment,

19     namely the physical commission, specifically persecution, expulsion,

20     and -- deportation and forcible transfers, participation in a joint

21     criminal enterprise, and the other forms of responsibility as provided

22     for in Article 7(1) of the Statute.

23             For the foregoing reasons and pursuant to Rule 98 bis of the

24     Rules, the Chamber in its -- the Chamber dismisses the accused's motion.

25             Since I do not agree with part of the majority decision, I must


Page 16886

 1     state my position orally.  In light of the issues that will be raised,

 2     while I read out [Realtime transcript read in error "redact"] my text, I

 3     shall use charts which will be displayed at my request on the various

 4     screens.  I would like to thank the Registrar and the usher in advance

 5     for their assistance.

 6             THE INTERPRETER:  Interpreter's correction:  Read out indeed of

 7     redact.

 8             JUDGE ANTONETTI: [Interpretation] With regard to the method I

 9     have used to reach these conclusions which are my personal conclusions, I

10     want to first and foremost express my thanks to our intern and to my

11     legal assistant who made it possible to prepare the chart that is soon to

12     be presented.  It was a lot of work, because they had to go through

13     thousands and documents and tens of thousands of pages to do so.  It was

14     a major piece of work, a major undertaking, and I wanted to thank them

15     for this.

16             In order to assess the Prosecution evidence, first of all, by way

17     of introduction, I wish to say that I relied mainly on an exhibit that I

18     feel is very important that was tendered into evidence by the OTP that is

19     now part of the case file and that relates to all the interviews or

20     transcripts of the accused until the Milosevic proceedings.  It went over

21     several days, and it is several hundred pages long.  So this was one of

22     the foundations on which I relied.

23             Equally, I read and scrutinised each and every decision by

24     Trial Chambers and Appeals Chambers in relation to the events that

25     occurred in the former Yugoslavia, and these are res judicata.  These are


Page 16887

 1     of common notice, and I may state some of them in my dissenting opinion.

 2     And apart from the documents, I also read motions and public decisions in

 3     cases that were relevant to the matters at issue in this case.

 4             When I finish reading my partly dissenting opinion, which is 73

 5     pages long, I'll give to Mr. Marcussen and Mr. Seselj the document I'm

 6     about to read out, together with attached charts and tables listing

 7     witnesses and exhibits so that they could find their way around, as it

 8     were.

 9             First of all, I have structure, a plan.  Mr. Usher, please

10     display it on the ELMO.  It has been translated into English and into the

11     accused's language.  So you can see this in English.  I will have some

12     preliminary remarks, then the 98 bis proceedings in relation to

13     acquittal.  Third chapter, the crimes alleged in the indictment,

14     allegedly committed in Croatia and Bosnia and Herzegovina and in Serbia.

15     The fourth chapter, individual criminal responsibility as to planning

16     ordering, instigating, committing, under JCE I, II, and III, crimes of

17     persecutions, crimes of deportation, and of forcible transfer.  Aiding

18     and abetting under number 5.  And finally, the charges with two overall

19     charts summing up the counts which in my view should give rise to

20     acquittal, in part, of the accused and summing up the counts that -- for

21     which the trial proceedings should be continued.

22             I have a few minutes left before the break, and I'll start with

23     chapter 1 -- or, rather, with preliminary remarks.

24             Review of Prosecution evidence further to Rule 98 bis.  It's to

25     be seen here in a very specific context compared with other cases brought


Page 16888

 1     before this Tribunal.  First of all, the pre-trial custody is really out

 2     of the ordinary.  The accused was detained on the 24th of February, 2003.

 3     This pre-trial and trial custody has lasted more than eight years, way

 4     beyond the standards set up by the European Court of Human Rights, and it

 5     may only be extended for relevant and sufficient grounds, such as the

 6     complexity of the case, the need to maintain the accused at the disposal

 7     of justice, the need to prevent re-offending.  See on this point European

 8     Court of Human Rights 29th of October, 2009, the Paradysz v. France case.

 9     Another reason may be the issue of pressure exerted on witnesses.  In

10     this regard refer to the European Court of Human Rights, 10th of March,

11     2009, Bykov v. Russia.

12             Secondly, there have been several ongoing allegations that result

13     from the unlawful disclosure of the names of protected witnesses or from

14     pressure exerted on witnesses.

15             The possible impact of such allegations on the indictment were,

16     in my view anyway, nonexistent because pressure or disclosure of names of

17     protected witnesses did not occur before the indictment was drafted.  The

18     indictment was therefore not contaminated by this type of pressure or

19     violation, if any.

20             Thirdly, there are ongoing contempt proceedings against several

21     OTP members.  In my view, such proceedings in which we can only expect

22     the conclusions of the amicus curiae at best in October 2011 may have a

23     direct impact on the indictment in the event that witness interviews

24     would have been vitiated, invalidated, by such pressure exerted on them.

25     Since an indictment is based on interviews, witness interviews that gave


Page 16889

 1     rise to witness statements that are then admitted into evidence, you

 2     have, for instance, the statements of witness VS-009 of 12 February 2003

 3     and 16th of June, 2006, but it relies also on documents, therefore there

 4     may be an impact, such as to carry out the total or partial nullity of

 5     the indictment.

 6             Therefore, I believe at my own level that in any event it would

 7     be better to wait until October before we can usefully start the second

 8     main stage of the proceedings further to Rule 73.  Should the

 9     amicus curia conclude that there was no contempt of court, should he

10     exonerate the OTP, the Defence case could then commence.

11             Conversely, no Defence case can begin before the total or partial

12     cleansing of the indictment, be it on application of the Prosecution,

13     further to Rule 51 in relation to the withdrawal of an indictment, or at

14     the request of the accused, further to Rule 73.  In the latter case, the

15     accused could seize the Chamber for a decision to be issued or to obtain

16     reparation of the damage suffered.

17             Furthermore, this would be a first in this Tribunal, and since

18     this -- such a case was never envisioned by the Rules, I am of the view

19     that the Trial Chamber, proprio motu, failing motions by the parties and

20     further to Rule 85(A), could decide that all the evidence has been

21     adduced and start the end of the proceedings as per Rule 86.

22             I have two and a half pages left.  We will finish the day at

23     quarter to 2.00.

24   (redacted)

25   (redacted)


Page 16890

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8   (redacted)

 9   (redacted)

10             THE ACCUSED: [Interpretation] I am absolutely opposed to this

11     request by the Prosecutor, because I never ever filed a confidential

12     submission.  I filed a public motion, and it can be seen on my website,

13     and it was also published in one of my books.  So it can under no

14     circumstances be a confidential motion.  It is me who decides whether my

15     motions are confidential or public, and I'm fully opposed to this

16     manipulation by Mr. Marcussen.

17             JUDGE ANTONETTI: [Interpretation] The Trial Chamber will see

18     whether there's a need for redaction or not, whatever the case may be.

19             Let me say that at this stage of the proceedings it is not

20     necessary to look into whether there was one or several cases of perjury.

21     As far as I can see, it's only at the time of the final deliberation that

22     this issue will have to be settled in a final way.

23             In this respect, I must remind you of a very recent decision of

24     the Appeals Chamber dated 1st of April, 2011, in the case this,

25     Tharcisse Renzaho.  Paragraph 196:  It says that the Defence must prove


Page 16891

 1     that the damage suffered is tantamount to an error of law invalidating

 2     the judgement.  Well, the President has not ruled yet on the new

 3     submission, so we have to wait for his decision.

 4             This submission does not bear any direct bearing, be it direct or

 5     indirect, on the development of the 98 bis proceedings.  It would be a

 6     totally different kettle of fish if we were at the level of the final

 7     deliberations.

 8             Finally, this case is to be seen in a very specific context.

 9     Inasmuch as we have two Judges of the Bench who also sit in

10     Trial Chambers seized of identical facts for certain crimes or of the

11     same joint criminal enterprise.  In these other cases, there are various

12     Prosecution expert witnesses or witnesses who may have witness --

13     testified in the three cases, or at least two of them, before the same

14     Judges.  Each testimony has to be ascertained as to their relevance and

15     probative value at the moment of the final deliberations.

16             Taking into account the fact that the three trials in question

17     are not at the same level of progress, it may be that one Judge may

18     assess the testimony of a given witness in a specific way in one trial,

19     and then he will have to assess the same testimony but several months

20     later in another case without any new element.  So is he or she going to

21     give the same probative value, the same weight?  The fact that several

22     Judges may participate in several trial proceedings where you hear the

23     same witnesses, this has been dealt with in the Tharcisse Renzaho case,

24     with regard to the second ground of appeal.  I think it's interesting

25     enough for me to mention it.  And the Appeals Chamber ruled in paragraphs


Page 16892

 1     22 and 23 in the following way:

 2             A presumption of impartiality is granted to the Judge in the

 3     absence of any contrary evidence, thus dismissing the Defence argument

 4     that the same Judges had taken part in other trial proceedings on the

 5     same facts with the same witnesses and this would have been a violation

 6     of the presumption of innocence.

 7             At this stage, notwithstanding the above-mentioned appeals

 8     decision, I cannot assess what the direct consequences would be on this

 9     case of the fact that my colleagues are part of other cases.  This can

10     only be done at the time of the final deliberations, and it might be

11     interesting to hear the parties on this, so much so that I think we have

12     to point out something that must have escaped the Prosecution, namely,

13     that in the indictment against Seselj, the joint criminal enterprise is

14     alleged to end in September 1993, mentioning among the participants

15     Karadzic, whilst in the indictment against Karadzic, Seselj is alleged to

16     be a participant, but the joint criminal enterprise is ongoing from

17     October 1991 to the 30th of November, 1995.  There is, therefore, an

18     obvious contradiction that puts the Judge sitting in the two cases in a

19     particularly difficult situation to assess the scope, the extent, of the

20     JCE.

21             To get out of this dilemma, one have -- one would have to wait

22     until the three trials are completed if we want to avoid running this

23     type of risk.  The completion strategy of this Tribunal doesn't make it

24     possible to extend trial proceedings forever.  All the more so since the

25     accused has been in custody for too long already.  Therefore, I had -- I


Page 16893

 1     was bound out of principle to raise this theoretical issue at this stage

 2     of the proceedings, while saying, much to my regret, that this trial

 3     should be completed as quickly as possible, whilst the very

 4     implementation of specific inescapable legal constraints should be such

 5     that we have to wait until the Karadzic and Stanisic/Zupljanin

 6     proceedings are completed to have our final deliberations which should be

 7     postponed sine die.  So we're going to wait, but there may be a

 8     discussion on the redactions.

 9             The majority opinion, and me dissenting, decided to redact the

10     part as suggested by Mr. Marcussen.

11             THE ACCUSED: [Interpretation] Does it mean that Mr. Marcussen has

12     just declared my motion a confidential one and that the majority of the

13     Chamber accepted that?  Your Honours, did you declare this motion of mine

14     to be confidential, and are you entitled to do that?  You're not, and

15     this is an abuse of your judicial role.

16             JUDGE ANTONETTI: [Interpretation] Well, the matter is settled.

17             We're going to adjourn -- well, rather, we'll have a 90-minute

18     break.  We shall resume -- we shall resume -- we shall resume around

19     3.15.

20                           --- Luncheon recess taken at 1.41 p.m.

21                           --- On resuming at 3.20 p.m.

22             JUDGE ANTONETTI: [Interpretation] The Trial Chamber is back in

23     session.  Let's move into closed session for a few moments,

24     Mr. Registrar.  Private session.

25                           [Private session]


Page 16894

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11 Pages 16894-16899 redacted. Private session.

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16

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18

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22

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Page 16900

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7                           [Open session]

 8             THE REGISTRAR:  We're now in open session.

 9             JUDGE ANTONETTI: [Interpretation] Thank you.

10             Chapter 2, 98 bis proceedings, acquittal.  I'm not going to

11     return, revisit some important parts that have been mentioned, addressed,

12     in the majority decision, but I must remind you that pursuant to the

13     former wording as amended, before it was amended on the 17th November,

14     1999, an accused may file a motion for acquittal on one or several of the

15     offences in the indictment within seven days following the close of the

16     Prosecution case, and at any rate, before the beginning of the Defence

17     case further to Rule 85(a)(ii).

18             (b) If the Trial Chamber is of the opinion that the evidence

19     adduced is not enough to sustain a conviction for this or these charges,

20     it enters a judgement of acquittal at the request of the accused or

21     proprio motu.

22             The way this former wording was used by Trial Chambers has given

23     rise to very long, very lengthy written decisions, sometimes with

24     dissenting opinions and the filing and filings with the Appeals Chamber.

25     It was a time-consuming procedure, and it was likely to delay the


Page 16901

 1     proceedings.  Therefore, a reform was introduced in 2004 under the

 2     incentive of the President of the Tribunal.  It aimed at speeding up the

 3     procedure by turning the procedure from a written to an oral procedure.

 4     And the text -- the wording as adopted is as follows:  "At the close of

 5     the Prosecution case, the Trial Chamber must -- shall by oral decision

 6     after hearing the oral submissions of the parties enter a judgement of

 7     acquittal on any count if there is no evidence capable of supporting a

 8     conviction."

 9             The 98 bis proceedings because of the amendment of this Rule in

10     2004, does not make it possible, because it is an oral decision, because

11     it is an oral opinion, doesn't make it possible to really go into details

12     with very specific and exact references, as was done before with written

13     decisions.

14             As it is forensically impossible to go into further detail, I

15     cannot review each and every crime to try and identify its possible

16     perpetrator.  At this stage, I can only conclude that the author is

17     alleged to be part of the Serb forces without any further specifications.

18     The Serb forces are collectively defined as members of regular units of

19     local TO, often from local TOs, from members of paramilitaries, Arkan's

20     men, Yellow Wasp, White Bees, Seselj's men, or other volunteers without

21     specifying whether these are volunteers affiliated to a political party

22     like to the Serbian Radical Party.

23             The majority opinion is that it is not possible to enter a

24     judgement of partial acquittal based on the wording of this Rule.  I

25     disagree totally with their interpretation, all the more so since I'm the


Page 16902

 1     coauthor, together with another Judge, of the very wording of the new

 2     Rule.  The purpose of this reform was never to make it impossible to

 3     enter a decision of partial acquittal.  It would have been paradoxical

 4     that the very purpose of this reform, which is to gain time, actually

 5     would have reached the opposite result on the very ground that it is not

 6     possible to enter a decision of partial acquittal.  It would be equally

 7     paradoxical to force the accused to adduce evidence whilst for specific

 8     counts or parts of counts the Prosecutor did not lead any evidence or

 9     because the evidence they have adduced is not sufficient.

10             This being so, unlike the majority opinion, I am of the view that

11     it was possible for the Trial Chamber to make a decision of acquittal in

12     part or total.

13             Furthermore, the English and French versions are authoritative.

14     In French the fact that you use the term of "Chef d'accusations," count,

15     instead of "infraction," offence, semantically boils down to one and the

16     same thing, because a crime is an element of an offence, an ingredient of

17     an offence or a count.  The fact that later on after this amendment was

18     made there was no partial acquittal does not mean this was impossible.

19     It's just that Trial Chambers did not look into the matter or did not

20     want to.

21             The Rule 98 bis proceedings, because it takes place at the close

22     of the Defence case and before -- of the Prosecution case and before the

23     Defence case is very similar to the no-case-to-answer motions of the

24     common law time where there is a motion for acquittal for insufficient

25     Prosecution evidence and the Defence does not respond to that, does not


Page 16903

 1     reply.  Although the fundamental concept behind Rule 98 bis has been

 2     borrowed from common law, this Rule has to be read in its own context in

 3     the light of the Statute and the Rules.  Therefore there may be

 4     discrepancies between the way the Tribunal applies it and the way it is

 5     applied in common law systems, in common law jurisdictions.  For

 6     instance, as to the notion of the legal test to grant a motion further to

 7     Rule 98 bis.

 8             The Trial Chamber Judge, as mentioned by the Appeals Chamber

 9     jurisprudence since their appeals judgement in case the Prosecutor

10     against Jelisic, must assess whether the Judge will enter a conviction

11     beyond any reasonable doubt given the evidence adduced by the

12     Prosecution.  This is what the Trial Chamber said, and I will quote:

13             "The Trial Chamber -- the Prosecution submits that when the

14     Trial Chamber required the guilt to be established beyond any reasonable

15     doubt after the presentation of its case, it applied a criteria different

16     and stricter than the one required by law.  In its point of view, it

17     would have -- what should have been done was to check whether the

18     evidence, once admitted, had allowed a reasonable tribunal to decide

19     whether the accused is guilty.  The question is not to know whether given

20     the evidence adduced the accused should be found guilty but whether he

21     could be found guilty."

22             The jurisprudence of this Tribunal regarding the implementation

23     of Rule 98 bis of the Rules has constantly indicated that Judges must

24     enter an acquittal if the evidence adduced by the Prosecution would not

25     allow any reasonable Judge beyond any reasonable doubt to find the


Page 16904

 1     accused guilty.

 2             Why is it that in common law there was this need to qualify the

 3     Judge as reasonable?  By definition, a Judge should not be unreasonable,

 4     and the Judge should not be incompetent nor should he be unbiased.

 5     However, in common law, these terms were found, "reasonable Judge."

 6             Similarly, why is there this addition of "beyond any reasonable

 7     doubt"?  Beyond any reasonable doubt is the criteria that is required for

 8     evidence in an adversarial criminal trial, which means that the evidence

 9     adduced by the Prosecution must prove, inasmuch as there can be no doubt

10     in the mind of a reasonable Judge, that the accused is indeed guilty.

11             Now, this notion of a reasonable Judge refers to a legal fiction.

12     It is a standard used to measure the behaviour of an individual.  This

13     standard is used in common law, in tort law, notably, to determine

14     whether there has been a violation of the duty of care.  Here this duty

15     of care is similar to the notion of "bon pere de famille" in French.

16     This is a very abstract individual seen as the behavioural standard used

17     to measure the behaviour of a given person in order determine whether an

18     offence has been committed and whether -- and to what extent.  This

19     notion of reasonable Judge, therefore, refers to a yardstick used to

20     measure how the Judge can appreciate a reasonable doubt.

21             Now, the content of this notion of reasonable doubt in a criminal

22     trial is, because of the bias it adduces, very uncertain.  This notion in

23     the United States is seen as a fundamental guarantee for the rights of

24     the accused, whereas in England it has been abandoned or quasi-abandoned

25     in criminal cases.


Page 16905

 1             In principle, whenever a Judge has a doubt, the accused must be

 2     given the benefit of this doubt so the terms "beyond any reasonable

 3     doubt" create, according to me, a greater standard.  I -- it seems to me

 4     that the Judge must be convinced without a single hesitation that the

 5     accused could be found guilty after the evidence has been analysed.

 6     Therefore, the case law of this Tribunal is extremely strict.

 7             The point here is not to examine the evidence prima facie but to

 8     examine the substance of things with -- with all the -- with everything

 9     that should be used to appreciate the elements -- the evidence.  In a

10     word, it's not -- we're not here just to note facts or to say that facts

11     have happened, we have to explain why and what are the probative evidence

12     adduced by the Prosecution which could allow a reasonable Judge to enter

13     a conviction.

14             Similarly, to make its decision, the Trial Chamber must determine

15     whether for each elements of the crime they are elements where at their

16     highest value could possibly satisfy this Trial Chamber beyond any

17     reasonable doubt that the accused is indeed guilty.  The Trial Chamber

18     has on several occasions had the opportunity to rule on these motions and

19     to enter judgements of partial acquittals.  In other cases, the

20     Trial Chambers just dismissed these motions.

21             As far as partial acquittal is concerned, I could quote the

22     decision of April 6, 2000, in the Kordic and Cerkez case; the -- the

23     decision of February 28, 2002, in the Martinovic/Naletilic case; the

24     decision of November 28, 2003, in the Brdjanin case; the decision of

25     June 16, 2004, in the Slobodan Milosevic case; and the decision of


Page 16906

 1     September 27, 2004, in the Hadzihasanovic and Kubura case.

 2             Partial acquittal is possible in law, because it corresponds to

 3     the spirit and the letter of Rule 98 bis.  Why should an accused, while

 4     presenting his case, call witnesses in order to rebut number of elements

 5     supporting an offence?  For example, in the Slobodan Milosevic case, the

 6     Trial Chamber entered a series of acquittals of the Bosnia-Herzegovina

 7     part of the case, noting that on the one hand there was no evidence

 8     adduced for some paragraphs, and on the other hand that the evidence

 9     adduced was insufficient.

10             In a recent decision in Milutinovic et al., which was issued

11     after the 2008 reform, the Trial Chamber in its oral decision stated, and

12     I quote:

13             "Where there is no evidence to sustain a count, the motion will

14     be granted.  Where there is some evidence but it is such that taken at

15     its highest a Trial Chamber could not convict on it, the motion will also

16     be granted.  Where there is some evidence but it is such that its

17     strength or weakness depends upon the view taken on a witness's

18     credibility and upon one possible view of the facts a Trial Chamber could

19     convict on it, the motion will not be granted."

20             Similarly, the Milutinovic Chamber referred to the legal test

21     used in the Jelisic appeals judgement and to the 98 bis decisions issued

22     in the -- in the following cases:  Slobodan Milosevic, Mrksic, Martic,

23     and Dragomir Milosevic.

24             The purpose of Article 98 bis is extremely clear.  It is meant to

25     prevent a trial from continuing in cases where Prosecution did not


Page 16907

 1     sufficiently provide proof of its allegations and in the absence of any

 2     analysis of the position of the Defence through its evidence either

 3     mentioned already adduced or to be adduced.

 4             Furthermore, since this is a very long case, we know that the

 5     accused has been in provisional custody for more than eight years.  I

 6     believe, therefore, the test -- the standard of review for the evidence

 7     in Article 98 bis should be higher than in ordinary cases where there is

 8     an expeditiousness, according to the Statute of the Tribunal.  It would

 9     be unfair to continue a trial when the evidence adduced so far

10     insufficient.  Note -- especially since the provisional detention has

11     been extremely long and that -- and that Prosecution has had all its time

12     to put the finishing touches to its investigation.  Since we know that

13     here at the ICTY the Prosecution during the trial can continue its

14     investigation and can adduce whenever it wishes to do so new evidence,

15     sometimes at the very last minute, as was the case with the diaries of

16     General Mladic.

17             I will now turn to the crimes alleged in the indictment, crimes

18     committed in Croatia, Bosnia-Herzegovina, and Serbia.

19             As far as the crimes alleged in the indictment are concerned, I

20     believe that some of them have been established through the evidence

21     adduced by the Prosecution and -- but some others have not been

22     established.  In the annex that we will soon have on the screen, you will

23     see the evidence which according to me could allow any reasonable trier

24     of fact to conclude that there was a crime as the Statute of the Tribunal

25     understand it.


Page 16908

 1             For crimes committed in municipalities, I will recall for each

 2     and every one of them what evidence has been adduced by the Prosecution

 3     in its preliminary brief as well as its oral submissions.  I am not going

 4     to recall the position of the accused, because it has been given in

 5     detail when reading the majority decision of the Trial Chamber in its

 6     first chapter, review of the procedure.  However, I must remind you of

 7     the position of the Prosecution in a detailed way by quoting all

 8     witnesses and documents supporting its allegations regarding the crimes,

 9     which is what I'm going to do for crimes committed in Croatia,

10     Bosnia-Herzegovina, and Serbia.

11             Given there are a lot of references, I will be ask to be placed

12     on the screen a summary chart of all the evidence adduced by the

13     Prosecution.  Before this, however, there are other elements I must deal

14     with.

15             The careful review of the elements -- of the evidence adduced and

16     the testimonies heard by the Trial Chamber during the Prosecution case

17     could lead a reasonable Judge to conclude that beyond any -- all doubt

18     that the crimes alleged in the indictment were actually committed, this

19     undisputedly except for some points which I will detail later on.

20             It is thus possible to conclude that within the time period of

21     the indictment, from August 1991 to September 1993, military actions were

22     carried out in a number of towns of former Yugoslavia, notably in

23     Croatia, Bosnia-Herzegovina, and in Serbia, mainly in the cities of

24     Zvornik, Vukovar, Mostar, Nevesinje, and Bijeljina, in the framework of

25     which civilians or enemy fighters were captured.  Some were detained,


Page 16909

 1     others were mistreated, and a large number of them were executed.  The

 2     list of the victims mentioned illustrates these crimes can be found in

 3     appendix 3, 4, 5, 7, 9, 10, and 11 of the indictment.

 4             This being said, regarding counts 12 and 13, wanton destruction

 5     of private or public property, does the Prosecution give enough evidence

 6     to prove that the crimes committed during the period mentioned in

 7     paragraph 34 of the indictment and in the cities mentioned in the

 8     indictments were actually carried out by groups on the terrain and which

 9     came under the authority either of the JNA or of the VRS?  Military

10     authority.

11             Therefore, regarding the destruction of buildings, it is true

12     that some of them were damaged or totally destroyed, but the report of

13     the Prosecution expert, Mr. Andras Riedlmayer, is not such that it

14     could -- that this destruction could be directly attributed to a single

15     group and does not allow also to provide exact dates for this

16     destruction.  It seems that the expert used documents drafted after the

17     events and on photographs taken before, during, or after the events.

18     Therefore, how is it possible to say that in a given locality and in a

19     given city a mosque which has been completely destroyed is a parking lot

20     now, but the mosque might have been destroyed by the municipality after

21     the events for different reasons, maybe just because this mosque was

22     about to crumble.

23             The expert did not answer these kinds of concerns, and I do have

24     elements in evidence that allow me to conclude that these buildings were

25     actually either damaged or destroyed, but I don't have enough evidence to


Page 16910

 1     attribute this damage, destruction, to a specific group which would have

 2     acted under the direct authority of the accused as alleged in paragraph

 3     34 of the indictment under any modes of liability, including JCE III.

 4             I would also like to add that as far as Mostar is concerned, the

 5     many -- all these buildings might have been destroyed during the conflict

 6     between the Serbs and the Muslims and the Croats or also during the

 7     conflict between the Muslims and the Croats, which introduces another

 8     element of doubt.

 9             Regarding the counts 12 and 13 dealing with the wanton

10     destruction of private and public property, as things stand now, the

11     following religious buildings must be excluded:  In Mostar, the Nesuh Aga

12     Vucjakovic mosque, the Franciscan monastery and the Most Sacred Heart of

13     Jesus.

14             In Nevesinje, the Islamic clock tower, the Hadzi Dervis Cucak

15     mosque, the market mosque, and the Sinan Dede Efendi mosque.

16             Regarding the municipality of Zvornik, the Mekted, and the

17     Gusteri mosque, the new Donji Krizevici mosque, the Svrake mosque, and

18     the Vitinica mosque.

19             In the area of Sarajevo, the Hadzi Idriz mosque in Hrasno, and

20     the Catholic Church of the Holy Trinity in Novo Sarajevo.  Because the

21     only buildings that should be taken into account are those who have been

22     extremely damaged.  You will see later on in the chart they will be noted

23     LDE; or the buildings that have been partially destroyed, marked with PD;

24     or the buildings that have been totally destroyed, CD.  However, contrary

25     to the crimes of plunder which I will expound on later, even as things


Page 16911

 1     stand now, there are some failings as described above.  The

 2     Trial Chamber, when it deliberates, will have the -- the expert report as

 3     well as other documents, which may lead it to conclude in a very specific

 4     fashion that such-and-such building has been destroyed and this at a

 5     specific date with a specific identification of the perpetrators, and

 6     thus a reasonable trier of fact could conclude that as things stand,

 7     these destructions did occur.

 8             Regarding count 14, plunder.  At paragraph 34 of the indictment,

 9     the Prosecution says that public and private properties were plundered in

10     the municipalities of Zvornik, in Greater Sarajevo, Mostar, and

11     Nevesinje.  I believe it is necessary regarding this plunder to have at

12     least a few intangible evidence such as the list of the victims of this

13     plunder, an accurate description of the goods plundered, the photographs

14     or reports on these goods, and the elements helping to identify the

15     perpetrators, but I must note that, unfortunately, this evidence does not

16     exist as things stand.  Therefore, I cannot conclude that hundreds of

17     houses were plundered in Vukovar, Zvornik, and the Greater Sarajevo

18     region, in Vogosca, in Mostar and in Nevesinje.

19             Consequently, I'm now going to show on the screen the charts

20     which include the evidence which according to me could lead a reasonable

21     Judge to conclude that the alleged crimes were actually committed.  I

22     will ask the court officer to place the summary chart of the evidence

23     on -- under the ELMO.

24             Here you have a list of all municipalities on the left-hand

25     column.  Exhibits, you have the list of the documents which according to


Page 16912

 1     the Prosecution are evidence of the crime.  And on the other column,

 2     witnesses.  You have the number of all the witnesses who testified about

 3     these crimes.  This is a summary chart giving you the position of the

 4     Prosecution.

 5             I will now get into the details, and I will ask the usher to show

 6     us Annex 1, which deals with Vukovar.

 7             In this appendix, on the left-hand side you have the paragraphs

 8     in the indictment; second column is paragraphs in the pre-trial brief;

 9     footnotes in the pre-trial brief which refer, of course, to these

10     paragraphs; and on the right-hand side column, list of the witnesses and

11     documents which according to me can prove that crimes were actually

12     committed in Vukovar.  Paragraph 16, for example, Witness VS-011 and

13     VS-015.

14             I will later hand to Mr. Marcussen and Mr. Seselj these charts.

15     Therefore, they can take a look at them.  Believe me, this took hours to

16     put together.

17             Appendix number 2, Vocin.  Same principle.  You have paragraphs

18     in the indictment, paragraphs in the pre-trial brief, footnotes, and

19     witnesses and documents supporting the allegations of the Prosecution.

20             Then Annex 3, Bijeljina.  I'm not going to go through it --

21     through all of these annexes, otherwise we'd be spending weeks here.  So

22     for Bijeljina you have the paragraphs in the indictment mentioning

23     Bijeljina, paragraphs in the pre-trial brief, footnotes, and witnesses

24     and documents.

25             Then Brcko.  Same thing for Brcko, paragraph in the indictment,


Page 16913

 1     pre-trial brief, footnotes, witnesses and documents.  For Brcko you can

 2     see that this is not supported by many witnesses, only mainly by

 3     Witness VS-1033.

 4             Annex 5, Bosanski Samac.  Here again, same columns, paragraphs in

 5     the indictment, paragraphs in the pre-trial brief, footnotes in the

 6     pre-trial brief, witnesses and documents.  And you can note here again we

 7     have an interview of Mr. Seselj mentioned to support paragraph 16 of the

 8     indictment, paragraph 86 in the pre-trial brief.

 9             Zvornik, Annex 6.  Here again for Zvornik there are two pages

10     because it's quite extensive.  Paragraphs in the indictment on the

11     left-hand side, paragraphs in the pre-trial brief from 91 to 94.  You

12     have all the footnotes and all the witnesses who testified for Zvornik

13     with their number and so far -- and so forth and so on.

14             All this is at your disposal, and you can take a look at it and

15     scrutinise it.  It will probably take you hours to peruse through it.

16             Annex 7, Greater SarajevoSarajevo region.  Paragraphs in the

17     indictment, paragraphs in the pre-trial brief, footnotes, witnesses and

18     documents.  And this page is the second page for Sarajevo.

19             Then Mostar, Annex 8.  One page was enough, was sufficient.  In

20     the pre-trial brief paragraphs 109 to 116, footnotes, and you have the

21     list of all witnesses who came to talk about Mostar.  You have all the

22     necessary reference here.

23             Annex 9, Nevesinje.  There again, this tedious work -- work made

24     it possible to illustrate all paragraphs in the indictment and the

25     pre-trial brief, to see what footnotes and witnesses and documents


Page 16914

 1     correspond.  And I refer to document P31, which is the testimony of

 2     Mr. Seselj under oath in the Milosevic case.  And you have the transcript

 3     references, of course, in the Milosevic case, the French Milosevic

 4     case -- the French transcript, which I read extensively.

 5             Appendix 10, Hrtkovci.  This is a very important city.  We have

 6     the paragraphs in the indictment, paragraphs in the pre-trial brief, 122

 7     to 129 because there's an additional page.  Thank you.  The witnesses who

 8     came to testify.  As you see, there is -- there are many of them, and you

 9     have their numbers.

10             I will now move on to Appendix 11.  And I would like to thank our

11     usher, who is very effective and helps us to save time.

12             Let me explain something to Mr. Marcussen and Mr. Seselj.  This

13     chart gives a list of all Croat victims who according to the Prosecution

14     were deported or forced to leave the area, to leave either to Croatia or

15     elsewhere.  There are several hundreds of these people.  There's 28 pages

16     of this annex.

17             On the left -- right-hand side, I deduct all mentions of people

18     whose destination is unknown.  For example, number 4, 18, 19, and 21.

19     Page 2, 26, 27, 28, 33, 34, 36, 40, 43, 47, and 48.

20             For some of these people we know for sure that they did go to

21     Croatia and Zagreb, but for others in the document, all that is stated is

22     destination unknown.  We don't know.  We don't know whether they left.

23     We don't know whether they left because they were expelled or because of

24     forcible transfer, whether they left of their own volition.  There's a

25     doubt.  Because of this I delete from Appendix 11, 233 people, which


Page 16915

 1     means that should Mr. Seselj be found guilty, as far as I'm concerned he

 2     should be acquitted at least for the victims who are listed on the

 3     right-hand side column, because I have no element at hand to know whether

 4     these people actually left Hrtkovci or not.  We don't know where they

 5     went.

 6             And Appendix 12, which was what I had regarding the mosques and

 7     the Catholic churches.  You will see there's a key.  SD severely damaged,

 8     PD partially destroyed, CD completely destroyed, and AB adjacent

 9     building.  Each letter gives us a qualification.  I divided the religious

10     property into two categories, Muslim sites and Catholic sites.  I made a

11     list of all the property that was severely damaged, first column;

12     partially destroyed, second column; or completely destroyed, third

13     column.

14             For example, you see that the convent of Franciscan sisters was

15     severely damaged, but the church of St. Peter and St. Paul, 19th century,

16     was partially destroyed.  This is Annex -- this is for Mostar on this

17     page.

18             On the next page, we have Nevesinje.  Here for Nevesinje, as far

19     as partially -- totally destroyed, completely destroyed, you have them

20     here.  And, for example, see that the Islamic archives were completely

21     destroyed.  That's on the right-hand column.

22             Then Zvornik.  This is very tedious work was done, you know,

23     building by building, and you have the conclusions I drew regarding

24     the -- either the total or partial destruction of these sites.  For

25     example, you see that the 18th century mosque of Begsuja was totally


Page 16916

 1     destroyed in Zvornik, completely destroyed.  And the list goes on.

 2     Obviously, there was a huge amount of religious buildings in this city.

 3             We'll now move to the Sarajevo region.  Novi Grad, Novo Sarajevo.

 4     You have a list of buildings here.

 5             Vogosca.  There again the buildings are divided according to the

 6     destruction they incurred.  On this page you have Vogosca and Ilijas.

 7     The list for Ilijas continues on the next page.

 8             Next chart -- no, we've seen everything.  We have here on this --

 9     these charts all the evidence that could establish the commission of

10     crimes.

11             The next question now is who these crimes should be attributed

12     to.  In order to do so, I must mention paragraph 4, individual criminal

13     responsibility.  Modes of responsibility.  In paragraph 130 of the

14     pre-trial brief, the Prosecution asserts that individual criminal

15     responsibility of Vojislav Seselj is incurred in the counts of the

16     indictment pursuant to Article 7(1) of the Statute.  That quotes

17     paragraphs 5 to 14 of the indictment.

18             As far as commits is concerned, Vojislav Seselj is prosecuted for

19     having participated in the JCE and also for having physically committed

20     (a) crimes of prosecution -- of persecution through hate speeches as part

21     of the incidents that occurred in Vukovar, Croatia, and Zvornik, BiH and

22     Hrtkovci, Vojvodina, Serbia, and (b) the crimes of expulsion and forcible

23     transfer as part of the incidents that took place in Hrtkovci.

24             As far as direct responsibility of the accused is concerned, I

25     must address the forms of responsibility of the accused.  These forms


Page 16917

 1     each in turn according to the following outline:  Planning, instigating,

 2     ordering, committing as part of the JCE, individual commission of crimes

 3     of persecution, deportation, and forcible transfer, and aiding and

 4     abetting.

 5             I shall, after I have delivered my reasoning, enter a judgement

 6     of acquittal on several counts of the indictment.

 7             Planning.  The Prosecution, in paragraph 143 of the pre-trial

 8     brief avers that the accused planned the crimes of persecution, murder,

 9     torture, cruel treatment, deportation, forcible transfer, wanton

10     destruction, and plunder of private and public property in Vukovar and

11     Zvornik, counts 1, 4, 8, 9, and 10 to 14.  Paragraphs 15 to 18, 20 to 22,

12     24 to 26, 26 to 34 of the indictment.  And the crimes of persecution,

13     deportation and forcible transfer at Hrtkovci, counts 1, 10 and 11,

14     paragraphs 15 to 17, 31 to 33 of the indictment.

15             The Prosecution submits that the mens rea element involved in the

16     planning of the crimes in Vukovar and Zvornik results from (a) his

17     inflammatory speeches, (2) the fact that he approved the sending of his

18     volunteers in these areas when he knew that they had committed criminal

19     acts on the battle-fields.  Third point:  From the fact that these crimes

20     did in fact take place, were committed.

21             The Prosecution adds that as far as Hrtkovci is concerned, the

22     mens rea involved in planning is exemplified by the statements made by

23     witnesses VS-014, VS-026, VS-1133.

24             I hold first of all that planning implies at its lowest a plan

25     and an architect of that plan, all the more so that in Vukovar the


Page 16918

 1     intervention of the JNA could only take place after a decision at a very

 2     high level had been taking -- taken involving the military command and

 3     that in this context the political opponent in the person of the accused

 4     played no part in the planning.  The fact that volunteers were present in

 5     Vukovar or sent to Zvornik is not, per se, enough to state that he

 6     planned or that he was involved in the planning or that he was a

 7     perpetrator in the planning.

 8             As far as Hrtkovci is concerned, the accused did not plan the

 9     deportations or the persecution campaign himself.  It is important to

10     note that at the time he delivers his speech, and for those people who

11     have forgotten about it, this was on the 6th May -- 6th of May, 1992.  He

12     was on a campaign trail and had no means of coercing the civilian

13     population in his capacity as a possible main perpetrator of the

14     planning.

15             The mens rea element involved in planning cannot be directly

16     drawn from the inflammatory speeches, for a sufficient nexus cannot be

17     drawn between words uttered in Vukovar, which is far from having been

18     established, and a meeting in Mali Zvornik which did not take place at

19     the date specified by the Prosecution, in my view.

20             I hold, secondly, that the fact that the accused approved of the

21     sending of -- of volunteers does not mean that he knew that some of them

22     were going to commit crimes on the ground.  In this respect, it is

23     important to make a distinction at the moment in time when the volunteers

24     were sent spontaneously, Borovo Selo, and the sending of volunteers at

25     the request of Slobodan Milosevic in a legal fashion.


Page 16919

 1             Furthermore, as things stand, sufficient -- there is insufficient

 2     evidence to prove that a member of an SRS -- a volunteer member of the

 3     SRS committed a given crime.  The fact that the alleged crimes took place

 4     does not mean that these crimes had been planned beforehand.

 5             It is alleged in the indictment and the pre-trial brief in

 6     several instances that volunteers of the SS -- of the SRS, Seselj's men,

 7     did participate in the commission of multiple crimes.  If it's true that

 8     several witnesses, either in the statements they gave to the OTP or

 9     during their testimony before the Chamber mentioned the existence of SRS

10     volunteers, Seselj's men, a reasonable trier of fact must nonetheless, to

11     establish what one or more person has said, have material and

12     indisputable evidence.

13             First piece of evidence which should be indisputable, the

14     military booklet of the volunteer, which mentions his assignment to a

15     given post and to a military unit, identified with the initials VP and

16     follows by a number.  Refer to Goran Stoparic's witness testimony on the

17     15th of January, 2008, at the hearing held in open session where he

18     explained all of this to us.

19             The second mens rea element which should be -- which should be

20     cross-referenced with the first element is the membership card of the SRS

21     which each party member had.

22             THE INTERPRETER:  The second material element, interpreter's

23     note.

24             JUDGE ANTONETTI: [Interpretation] Without such cross-referencing

25     of these two elements a reasonable trier of fact cannot conclude that a


Page 16920

 1     given volunteer, assigned to a given unit, having committed a given

 2     crime, was a volunteer of the SRS.

 3             Furthermore, the numerous testimonies of Prosecution witnesses,

 4     photos and videos adduced and admitted by the Trial Chamber lead to the

 5     conclusion that any fighter was wearing patchy clothing and this does not

 6     mean that this qualified him as a member of a particular unit in the

 7     absence of any insignia or distinctive sign identifying the unit.

 8     Likewise, some of them wore the sajkaca, others did not, or wore a helmet

 9     or had no helmet and no sajkaca.

10             It is clear that in light of the evidence that has been admitted,

11     each volunteer was submitted to a military chain of command which was not

12     in my view the chain of command of the SRS.

13             I hold, therefore, that the accused should be acquitted on this

14     mode of responsibility based on planning.

15             I'm just looking at the clock.  We have approximately ten minutes

16     left.  I believe that in ten minutes' time, I will have time to read

17     three pages.  I will then have completed one-third of what needs to be

18     done.

19             Instigation.  The Chamber in its majority has decided to only

20     look into this mode of responsibility.  I myself review all modes of

21     responsibility.

22             The Prosecution, in paragraphs 146, 147, and 148 of the pre-trial

23     brief ascertains by relying on various judgements and appeals judgements

24     Kvocka, Kordic, Blaskic, Krstic, Nahimana, Brdjanin, Akayesu, that the

25     accused instigated the crimes of persecution, murder, torture, cruel


Page 16921

 1     treatment, deportation, forcible transfer, wanton destruction, and

 2     plunder of private and public property in Vukovar and Zvornik, counts 1,

 3     4, 8, 9, and 10, 10 to 14, paragraphs 15 to 18, 20 to 22, 24 to 26, 26 to

 4     34 of the indictment.  And the crimes of persecution, deportation, and

 5     forcible transfer in Hrtkovci, counts 1, 10 and 11, paragraphs 15 to 17,

 6     and 31 to 33 of the indictment.  Through inflammatory speeches he

 7     delivered when he visited these localities or other neighbouring

 8     localities like Mali Zvornik.

 9             As far as was uttered by the accused in Vukovar is concerned, it

10     so happens that the evidence adduced does not prove that the accused

11     uttered these words.  In fact, Witness VS-027.  On reviewing his

12     testimony -- or when I reviewed his testimony, realised that he is not

13     entirely credible.  All the more so that in the Mrksic, Radic, and

14     Sljvancanin judgement that amounts to res judicata, it is mentioned in

15     paragraph 51 the following, I shall read it out.  It seems a point of

16     interest.

17              "The Trial Chamber reserves the right to address this in greater

18     detail in its judgement.  The Chamber is not persuaded of the honesty or

19     reliability of the witnesses who testified about this.  The evidence in

20     this respect is not confirmed by other evidence and in addition there is

21     contradicting evidence regarding Miroslav Radic, Veselin Sljvancanin's

22     presence at this meeting.  The Chamber recalls at this stage that it

23     accepts that Vojislav Seselj visited Vukovar on several occasions in late

24     October and early November 1991, but is unable to conclude on the

25     evidence it has heard that Radic and Sljvancanin attended a meeting at


Page 16922

 1     which Seselj made such a statement."

 2             There is an element of doubt in my view, and this benefits the

 3     accused, of course.

 4             As far as the speech delivered at Mali Zvornik is concerned,

 5     alleged in paragraphs 93 of the pre-trial brief, addressed by the sole

 6     witness, VS-017.  Quoted in a footnote on page 292, the witness seems

 7     uncertain about the date.  The confusion may arise from the fact that

 8     another speech was delivered in August of 1990.

 9             As far as the speech delivered at Hrtkovci on the 6th May, 1992,

10     is concerned, mentioned in paragraph 127 of the pre-trial brief, the

11     statements of Witness VS-1133, quoted in the form of a footnote on page

12     441 do not seem credible, all the more so that the speech that the

13     Chamber has received does not mention his statement in any way.  Let me

14     remind you of the words purportedly uttered by the -- the accused that

15     mixed marriages needed to be purged, mixed marriages between Serbs and

16     Croats, and that the children of this union should be killed.  VS-133,

17     line 10624 and 10664.

18             These statements do not figure in the official speeches we have

19     received.  However, the speech delivered at Hrtkovci through the words

20     spoken fall within the scope of counts 1, 10, and 11 of the indictment

21     under instigation to commit persecution, deportation, and forcible

22     transfer.  At this stage of the trial, it cannot be determined whether

23     under counts 1, 10 and 11 of the indictment the accused Seselj incited or

24     instigated or committed, for either he instigated or he committed.  He

25     can't, in my view, be both an instigator and a perpetrator.  It's either


Page 16923

 1     one or the other.  Therefore, irrespective of this issue, the Prosecution

 2     has adduced enough evidence on the instigation of crimes of persecution,

 3     deportation, and forcible transfer at Hrtkovci.  However, he should be

 4     acquitted on the crimes of murder, torture, cruel treatment, wanton

 5     destruction and plunder.  That said, the documents quoted by the

 6     majority, P1264, P1259, P1257, P1192, P1293, P0685, P526, P528, P1298,

 7     P1200, P1180, P1324, and the witness testimonies of VS-016, VS-033,

 8     Stojanovic, Bosanac, and VS-004 seem insufficient to establish a nexus

 9     between the instigating statements the accused is charged with and the

10     crimes listed under counts 4, 8, 9, 12, 13, and 14 of the indictment.  I

11     will finish in a few minutes' time.  I should also mention in greater

12     detail, counts 8 and 9 on torture and cruel treatment.  The majority of

13     the Bench relies on VS-1032 to establish the commission of the crimes in

14     Zvornik.

15             If it is true that the head of the unit, Cele, mistreated and

16     killed detainees and that he was a volunteer that had been proclaimed

17     Vojvoda, and that other volunteers headed by a so-called Repic had

18     committed torture and cruel treatment in the municipality of Zvornik,

19     this does not mean that a reasonable trier of fact can draw the

20     conclusion that these acts were committed on the instigation of the

21     Accused Seselj.  Indisputable or compelling evidence, such as documents

22     or statements, establishing a positive nexus between the crimes and the

23     accused is required.

24             The Chamber in its majority found that sufficient evidence was

25     adduced with regards to count 8 and 9, instigation in Vukovar; Berghofer,


Page 16924

 1     VS-1051, Vojnovic, VS-016.  Zvornik; VS-1012, VS-1013, VS-1064, VS-1065,

 2     P307, P389, P469.  Sarajevo; VS-1055, P455, P457.  Nevesinje; VS-1022,

 3     VS-1051.  Mostar; Karisik, Bilic.

 4             If a reasonable trier of fact could conclude that torture and

 5     cruel treatment were, in fact, committed, there is nonetheless not

 6     sufficient evidence to establish a -- to establish a nexus between the

 7     Accused Seselj and these crimes for instigation and this form of

 8     responsibility.  As an example, what words uttered led in the mind of the

 9     perpetrator of the crime to brutal and inhuman living conditions for

10     civilians in the basement of the Kilavci thermal plant?  Witness VS-1022

11     ascertains that this occurred, that no one doubts, but what are the

12     reasons for that, the words uttered by the accused or any other reason?

13             There again, I entertain doubt as to counts 7, 8, and 9,

14     instigating to commit murder.

15             Tomorrow, I'll look into ordering, and I will at great length

16     develop another topic.  Forgive me for that, but it is essential.  I will

17     address the issue of the joint criminal enterprise, and I may as well

18     tell you straight ahead beforehand, because this may give you food for

19     thought overnight.  I find that Mr. Seselj was not a participant in a

20     joint criminal enterprise together with Milosevic, Karadzic, et al.  But

21     all this will be proven and demonstrated tomorrow, based on a very

22     lengthy reasoning that is going to be quite time-consuming tomorrow.

23             So there it is.  I got to page 25.  We've got 50 pages for

24     tomorrow.  Rest assured, we won't have to work until midnight tomorrow.

25     This being said, I wish you all a very good evening.  We shall reconvene


Page 16925

 1     tomorrow to go on with the reading.

 2                           --- Whereupon the hearing adjourned at 4.49 p.m.,

 3                           to be reconvened on Thursday, the 5th day

 4                           of May, 2011, at 2.15 p.m.

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