Tribunal Criminal Tribunal for the Former Yugoslavia

Page 34

1 Thursday, 6 March 2003

2 [Further Appearance]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.08 a.m.

6 JUDGE EL MAHDI: [Interpretation] Good morning, everyone.

7 Madam Registrar, be kind enough to call the case, please.

8 THE REGISTRAR: Case number IT-96-23/2-I, the Prosecutor versus

9 Radovan Stankovic.

10 JUDGE EL MAHDI: [Interpretation] Thank you. For the record,

11 could we have the appearances of the parties, please. The Prosecution,

12 please.

13 MR. WUBBEN: Good morning, Your Honour. My name is Jan Wubben,

14 Senior Trial Attorney recently assigned to this case. At my side you will

15 see Daryl Mundis, attorney, and Ms. Djurdja Mirkovic, she's case manager.

16 JUDGE EL MAHDI: Thank you very much. And for the defence.

17 MR. RADOVIC: Your Honour, I am attorney Milenko Radovic from

18 Foca, Srbinje, and I am Defence counsel for Mr. Radovan Stankovic.

19 JUDGE EL MAHDI: [Interpretation] Thank you.

20 I should now like to address Mr. Stankovic. Can you hear me in a

21 language you understand?

22 THE ACCUSED: [Interpretation] Yes. I can hear you very well, and

23 for the moment, Mr. Mahdi, we're on the same wavelength.

24 JUDGE EL MAHDI: [Interpretation] [Interpretation] Thank you very

25 much. I apologise; I am Judge El Mahdi, as Pre-Trial Judge appointed by

Page 35

1 order on the 23rd of July, 2002.

2 Further to the Scheduling Order of the 28th of February, 2003,

3 today's hearing will be devoted both to a second initial appearance of the

4 accused following the amendment to the indictment granted by decision of

5 the Chamber of the 23rd of February, 2003, followed by a Status Conference

6 pursuant to Rule 65 bis of the Rules of Procedure and Evidence, with a

7 view to reviewing the progress made in the preparation of the trial.

8 So we begin with the further appearance.

9 I should like Mr. Stankovic to follow carefully this part of the

10 proceedings, which is rather a delicate part of today's hearing.

11 Mr. Stankovic, the point is to convey to you and familiarise you

12 with the amended indictment, and this amendment was approved by the

13 Chamber in order to allow you to have a better understanding of the

14 contents of that indictment, because, I wish to remind you, that the

15 original indictment had several accused, and it could lead to some

16 confusion. So for you to understand better the charges brought against

17 you, the Chamber decided to grant the Prosecution the possibility to amend

18 the indictment, and we're here today to convey to you in detail the

19 contents of that indictment, this indictment, which is in a sense a

20 reorganised version of the original indictment.

21 And I would like you to tell me, please, whether you would like

22 the indictment to be read to you in its entirety or, rather, should we

23 focus on the charges and the counts? You have every right to require that

24 the indictment be read to you in total, or, rather, to opt for the charges

25 and counts. It is up to you to choose between these two possibilities.

Page 36

1 Perhaps you should like to confer with your counsel.

2 THE ACCUSED: [Interpretation] I am considering a way of saving

3 time so as to avoid reading the whole indictment, but I would like to make

4 some comments, because there are things that are not logical here.

5 I have read this indictment --

6 JUDGE EL MAHDI: [Interpretation] Excuse me, Mr. Stankovic. I'm

7 sorry for interrupting you. We will have plenty of time to discuss the

8 contents. We are now talking about the form, the formal matter as

9 required by the Rules. The Rules require that the indictment be read to

10 you, and you have the possibility of asking for the indictment to be read

11 to you in extenso or, rather, as I suggest, that we concentrate on the

12 charges and the counts.

13 Of course, the indictment will be made available to you and has

14 already been made available to you; hasn't it?

15 THE ACCUSED: [Interpretation] Yes. I see, just these two, nothing

16 more than that; either the entire indictment or just the counts of the

17 indictment. As far as I'm concerned, there's no need to read the

18 indictment, because I've read it. I don't want to waste any time, and I

19 am able to plead.

20 JUDGE EL MAHDI: [Interpretation] Very well. Thank you. I haven't

21 quite understood. Did you say that you were mistreated here?

22 THE ACCUSED: [Interpretation] No. I don't want to mistreat you.

23 I don't want to bother you.

24 JUDGE EL MAHDI: [Interpretation] But I assure you that justice has

25 plenty of patience, and it is one of the essential and principal functions

Page 37

1 of justice that it be patient, that it hear, that it opens its heart to

2 all ideas and to give you every possibility of expressing yourself.

3 THE ACCUSED: [Interpretation] In this case, I think that justice

4 cannot be achieved in this particular case, but we'll come to that later.

5 JUDGE EL MAHDI: [Interpretation] Everyone is doing his best.

6 Madam Registrar, would you please be kind enough to read to us the

7 charges and the counts, please. Thank you very much. Just a moment,

8 please.

9 I should like to make it clear, Mr. Stankovic, that I prefer that

10 we do not focus exclusively on the new counts but that we convey to you

11 all the counts at the same time so that you should be in a position to

12 fully appreciate the extent of the charges made against you. Thank you.

13 Madam, please, will you read it.

14 THE ACCUSED: [Interpretation] Excuse me. So if the counts of the

15 indictment have to be read, then I would like the whole indictment to be

16 read, because I thought that something else would be possible, that we

17 don't read the indictment at all, because I am familiar with it, I have it

18 in front of me. But if we have to read a part of it, I would prefer that

19 the whole be read.

20 JUDGE EL MAHDI: [Interpretation] You have absolute every right to

21 require that the whole indictment be read, but if you have the indictment

22 in front of you ...

23 THE ACCUSED: [Interpretation] I also have the counts in front of

24 me.

25 JUDGE EL MAHDI: [Interpretation] Yes.

Page 38

1 THE ACCUSED: [Interpretation] So if the counts have to be read,

2 let the entire indictment be read.

3 JUDGE EL MAHDI: [Interpretation] Very well. Very well. That is

4 your right.

5 Madam Registrar, will you please read the indictment in its

6 entirety, including the first page. Thank you.

7 THE REGISTRAR: The Prosecutor of the Tribunal against Radovan

8 Stankovic. Second amended indictment.

9 The Prosecutor of the International Criminal Tribunal for the

10 Former Yugoslavia, pursuant to her authority under Article 18 of the

11 Statute of the Tribunal, charges Radovan Stankovic with crimes against

12 humanity and violations of the laws or customs of war, as set forth below.

13 Background.

14 The city and municipality of Foca are located south-east of

15 Sarajevo, in Bosnia and Herzegovina and borders Serbia and Montenegro.

16 According to the 1991 census, the population of Foca consisted of 40.513

17 persons with 51.6 per cent Muslim, 45.3 per cent Serbian, and 3.1 per cent

18 others. Serb forces launched an extensive attack targeting the non-Serb

19 civilian population, with the first military actions in the town of Foca

20 on 8 April 1992. The Serb forces, supported by artillery and heavy

21 weapons, proceeded to take over Foca, section by section. The takeover of

22 Foca town was complete by 16 or 17 April 1992. The surrounding villages

23 continued to be under siege until mid-July 1992.

24 Once towns and villages were securely in their control, Serb

25 military, police, paramilitaries, and sometimes even Serb villagers

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Page 40

1 started ransacking or burning Muslim houses and apartments and rounding up

2 and capturing Muslims. Some Muslims were beaten or killed in the process.

3 The Serb forces separated the non-Serb men from the women. The

4 Foca Kazneno-Popravni Dom (hereinafter KP Dom), was one of the largest

5 prison facilities in the former Republic of Yugoslavia, was the primary

6 detention facility for men in Foca. Some men spent as much as two and a

7 half years in detention for no reason other than their being Muslim.

8 Muslim women and children and the elderly were detained in houses,

9 apartments and motels in the town of Foca or in the surrounding villages

10 or at short and long-term detention centres, such as Buk Bijela, Foca

11 High School, and Partizan Sports Hall. These women and girls had to live

12 in intolerably unhygienic conditions, where they were mistreated in many

13 ways, including, for many of them, being raped repeatedly.

14 Some of these women and girls were taken out of these larger

15 detention centres to privately owned apartments and houses, such as ulica

16 Osmana Dzikica 16, Karaman's House, or the house in Trnovace, where they

17 were forced to cook, clean, and serve the residents who were Serb

18 soldiers. These women and girls were also subjected to repeated sexual

19 assaults. The International Committee of the Red Cross (ICRC) and other

20 organisations, unaware of these detention facilities, did not intervene.

21 Those detainees, therefore, had no possibility of release or exchange.

22 The accused.

23 Radovan Stankovic, aka Rasa, son of Todor, born on 10 March, 1969,

24 in the village of Trebica, municipality of Foca, was a permanent resident

25 of Miljevina. Radovan Stankovic was a soldier in the Miljevina battalion

Page 41

1 of the Foca Tactical Brigade. The Miljevina battalion was commanded by

2 Pero Elez during the times relevant to the indictment. Radovan Stankovic

3 was in charge of Karaman's House in Miljevina.

4 General allegations.

5 At all times relevant to this indictment, an armed conflict

6 existed in Bosnia and Herzegovina in the territory of the former

7 Yugoslavia.

8 At all times relevant to this indictment, the accused was required

9 to abide by the laws or customs governing the conduct of war.

10 Unless otherwise set forth below, all acts and omissions set forth

11 in this indictment took place between April 1992 and November 1992.

12 In each count charging crimes against humanity, a crime recognised

13 by Article 5 of the Statute of the Tribunal, the acts or omissions were

14 part of a widespread or large-scale or systematic attack against a

15 civilian population, specifically the Muslim population of the

16 municipality of Foca.

17 Witnesses and victims are identified in this indictment using code

18 names or pseudonyms such as FWS-87 or initials, for example, DB.

19 The accused is individually responsible for the crimes charged

20 against him in this indictment pursuant to Article 7(1) of the Statute of

21 the Tribunal. Individual criminal responsibility includes committing,

22 planning, instigating, ordering or aiding and abetting in the planning,

23 preparation or execution of any acts or omissions set forth below.

24 Counts 1 to 4.

25 Enslavement and rape of FWS-75, FWS-87, FWS-132, FWS-190, AS, AB,

Page 42

1 JB, JG and other women in Karaman's House.

2 Pero Elez, a Serb paramilitary leader in a position of regional

3 authority, commanded the Miljevina battalion which was subordinated to the

4 Foca tactical brigade. The Miljevina battalion was headquartered in the

5 Miljevina Motel. Some of the soldiers under Elez's command, including the

6 accused Radovan Stankovic, used the abandoned house of a Muslim, Nusret

7 Karaman, as a residence. On or about 3 August 1992, Dragoljub Kunarac, in

8 concert with Pero Elez, took FWS-75, FWS-87, FWS-50, and DB, as set forth

9 in paragraph 5.1 infra, from ulica Osmana Dzikica number 16 to Miljevina,

10 where they were handed over to Pero Elez and his men who in turn

11 transferred them to Karaman's House. Karaman's House is close to the

12 headquarters of the battalion. Later on, other women and girls were

13 detained at Karaman's House. Some were as young as 12 and 14 years of

14 age. The number of women and girls detained at Karaman's House between on

15 or about 3 August 1992 and until around 30 October 1992 totaled at least

16 nine, including FWS-75, FWS-87, FWS-132, FWS-190, AS, AB, JB, JG and as

17 set forth infra in paragraphs 5.1 to 5.4, DB from on or about 3 August

18 1992 through the end of September 1992. Radovan Stankovic together with

19 at least one other Serb soldier, Nikola Brcic, was in charge of Karaman's

20 house where Muslim women were detained and sexually assaulted from at

21 least on or about 3 August 1992 until on or about 30 October 1992.

22 In contrast to larger detention facilities such as Partizan Sports

23 Hall, the detainees at Karaman's House had sufficient food. They were not

24 guarded or locked inside the house. The detainees even had a key they

25 could use to lock the door and prevent any soldiers not belonging to Pero

Page 43

1 Elez's group from entering. The detainees were also given the telephone

2 number of the Miljevina Motel, and were told that they should call this

3 number if any soldier without authorisation tried to enter the house.

4 When the women did call this number, either Radovan Stankovic or Pero Elez

5 would come to prevent other persons from entering the house. Although the

6 detainees were not guarded, they could not escape; they had nowhere to go

7 as they were surrounded by Serb soldiers and civilians.

8 FWS-75, FWS-87, and other girls and women were detained in

9 Karaman's House between on or about 3 August 1992 until on or about 30

10 October 1992. Radovan Stankovic and the Serb soldiers living in the house

11 treated the women and girls as their personal property.

12 During the entire period of their detention at Karaman's House,

13 FWS-75, FWS-87, and the other female detainees were subjected to repeated

14 rapes and sexual assaults at night. All the perpetrators were Serb

15 soldiers who belonged to Pero Elez's group. Among the soldiers who

16 frequently raped FWS-87, vaginal and anal penetration, was Radovan

17 Stankovic.

18 The first time FWS-75 and FWS-87 were raped in Karaman's House was

19 on or about 3 August 1992, shortly after their arrival. An unidentified

20 soldier raped FWS-75, vaginal penetration, while Radovan Stankovic raped

21 FWS-87 that day.

22 In addition to the rapes and other sexual assaults, the accused

23 regularly ordered all the female detainees to work for him and the other

24 Serb soldiers, washing uniforms, cooking and cleaning the house. FWS-87

25 was taken three times from Karaman's House to other buildings in

Page 44

1 Miljevina. On these occasions, she was forced to clean rooms in the

2 buildings, cook for the soldiers, and paint the window frames. On one of

3 three occasions when she was taken out with another woman, two Montenegrin

4 soldiers sexually assaulted both women.

5 At Karaman's House, the detainees constantly feared for their

6 lives. If any of the women or girls refused to obey orders, they would be

7 beaten. Soldiers often told the women that they would be killed after the

8 soldiers were finished with them because they knew too much. FWS-87 felt

9 suicidal during the entire time of her detention in Karaman's House.

10 By the foregoing acts and omissions, Radovan Stankovic committed:

11 Count 1: Enslavement, a crime against humanity, punishable under

12 Article 5(c) of the Statute of the Tribunal.

13 Count 2 --

14 JUDGE EL MAHDI: [Interpretation] Just a moment, please.

15 Mr. Stankovic, how do you plead to this count; guilty or not

16 guilty?

17 THE ACCUSED: [Interpretation] I cannot plead regarding this

18 amended indictment for the following reasons, and I will explain.

19 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, wait a moment,

20 please. We are in a stage in the proceedings where you simply have to

21 respond to the counts that are being read. You will have plenty of time

22 to present to the Chamber your defence in every aspect. This is simply to

23 familiarise you with the counts, to inform you of the charges, and it is

24 up to you to say whether you are guilty or not guilty. However, all means

25 of defence are allowed to you, but it is not at this stage of the

Page 45

1 proceedings nor at this hearing, which is devoted to a further initial

2 appearance, is it possible to develop your defence. I understand that you

3 have many defences, but you will have plenty of time to present them.

4 THE ACCUSED: [Interpretation] Very well, Mr. Mahdi. I understand

5 that.

6 JUDGE EL MAHDI: [Interpretation] So we have the first count. And

7 how do you plead; guilty or not guilty?

8 THE ACCUSED: [Interpretation] I am saying I cannot plead regarding

9 this indictment, and the reasons are the following: I request that the

10 character of the conflict in the internationally recognised country of

11 Yugoslavia be defined. And allow me -- allow me for a moment. I'll

12 explain everything.

13 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, you have every

14 right to plead within a time period of 30 days. If you're not able to

15 plead today, you don't have to. All I'm asking you to do is to think

16 carefully, and in consultation with your counsel, if you prefer, but you

17 must simply respond, and I repeat, I understand you will have many means

18 of defence, but the -- now all you have to do is to say, "I plead guilty,"

19 or, "I plead not guilty." That's all that we're asking of you at this

20 stage. You will have plenty of time and every possible possibility to

21 develop your means of defence.

22 Do you understand what I'm saying?

23 THE ACCUSED: [Interpretation] Yes, I do. But allow me to say

24 something. I do not like to feel like a monkey and to say simply, "I'm

25 guilty," or, "I'm not guilty," or to keep quiet, because, please, since

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Page 47

1 you have publicly indicted me, then allow me to defend myself publicly

2 too.

3 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, we're not in the

4 stage of the Defence case.

5 THE ACCUSED: [Interpretation] I understand, Mr. Mahdi, and that is

6 why I'm saying that I cannot plead at this stage for the following

7 reasons, and allow me to give you the reasons. I am not able to plead,

8 and allow me to explain --

9 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, you will have

10 plenty of time to present your defences but today and during this hearing

11 it is not the right time to do that according to the Rules of Procedure.

12 We all have those Rules of Procedure. And according to those Rules --

13 THE ACCUSED: [Interpretation] They are your rules.

14 JUDGE EL MAHDI: [Interpretation] Yes, of course. They are rules

15 of the international community. All I can tell you is that we are asking

16 you, if you wish, to plead. You can also say that you require some time

17 to think it over. If you do not enter a plea on the counts, I have to

18 tell you that I will do so on your behalf, and I will enter a plea of not

19 guilty, which is normal.

20 I'd like you to be quite certain that you are innocent --

21 THE ACCUSED: [Interpretation] Listen --

22 JUDGE EL MAHDI: [Interpretation] Listen, Mr. Stankovic. You are

23 innocent until proven guilty, you are innocent, and no one can tell you

24 that the indictment was read, and so on and so forth. No. You enjoy a

25 presumption of innocence and no one can violate that. Until the opposite

Page 48

1 verdict has been brought, you are innocent, and I wish to underline that

2 point because it is fundamental.

3 So within that context, I would like you to understand the

4 procedure, and the procedure is to inform you of the allegations against

5 you. Anyone can be charged, but does that mean that he is guilty?

6 Personally - and this is common knowledge - no one can be considered

7 guilty except by judgement of a court. It is not because a party has

8 alleged that certain facts have been committed by someone that that person

9 is considered guilty. Not at all. You are innocent until the opposite is

10 proven.

11 THE ACCUSED: [Interpretation] Very well. May I say something now?

12 JUDGE EL MAHDI: [Interpretation] Yes, please do. But do you

13 understand my point?

14 THE ACCUSED: [Interpretation] Yes. So I do not wish to enter a

15 plea of guilty or not guilty, the way you're putting it. I have said that

16 I cannot, and I repeat again, I cannot enter a plea now on the basis of

17 this indictment for the following reasons: I require --

18 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic --

19 THE ACCUSED: [Interpretation] -- a definition of the character of

20 the conflict in an internationally recognised state of Yugoslavia. And

21 why I'm asking for that, so that inadequate terms should not be used, such

22 as "occupation" that is to be found in this indictment.

23 JUDGE EL MAHDI: [Interpretation] Mr. Stankovic, I have to stop

24 you. You say that you're not capable of entering a plea of -- on the

25 basis of this indictment. The indictment will be read to the end. You

Page 49

1 will have plenty of time to think it over, and we will have another

2 hearing, a further initial appearance. And if you fail from pleading, I'm

3 telling you that I am -- I will be obliged to enter a plea of not guilty

4 on your behalf, and that is all.

5 The problem is that you believe that this indictment condemns you.

6 No. That's not the truth. That's not true. You will have plenty of time

7 to present your defences legally and in every other way.

8 THE ACCUSED: [Interpretation] I understand that very well.

9 JUDGE EL MAHDI: [Interpretation] Very well, then. We will

10 continue accordingly. So madam, please will you read the whole

11 indictment, and we will state that Mr. Stankovic will not be entering a

12 plea today and that he requires a time for reflection.

13 You have come to count 1.

14 THE REGISTRAR: Count 2: Rape, a crime against humanity

15 punishable under Article 5(g) of the Statute of the Tribunal.

16 Count 3: Rape, a violation of the laws or customs of war,

17 punishable under Article 3 of the Statute of the Tribunal.

18 Count 4: Outrages upon personal dignity, a violation of the laws

19 or customs of war, punishable under Article 3 of the Statute of the

20 Tribunal

21 Counts 5 to 8: Rape and enslavement of DB.

22 On or about 3 August 1992, Dragoljub Kunarac, in concert with Pero

23 Elez, took DB, along with FWS-75, FWS-87, FWS-50, as set forth in

24 paragraph 4.1 supra, from ulica Osmana Dzikica number 16 to Miljevina,

25 where they were handed over to Pero Elez and his men, who in turn

Page 50

1 transferred them to Karaman's House. Karaman's House is close to the

2 headquarters of the battalion. DB and other women and girls were detained

3 at Karaman's House as described in paragraphs 4.1 to 4.7 supra.

4 During the entire period of her detention at Karaman's House, DB,

5 along with the other female detainees were subjected to repeated rapes and

6 sexual assaults at night. All the perpetrators were Serb soldiers who

7 belonged to Pero Elez's group. Among the soldiers who frequently raped

8 DB, vaginal and anal penetration, was Radovan Stankovic.

9 The first time DB was raped in Karaman's House was on or about 3

10 August 1992, shortly after her arrival, when she was raped by Radovan

11 Stankovic that day.

12 Radovan Stankovic took DB away from Karaman's House towards the

13 end of September 1992. During the period that she remained in Karaman's

14 House, that is, from on or about 3 August 1992 through the end of

15 September 1992, DB was subjected to the treatment described in paragraphs

16 4.1 to 4.7 and the Prosecution, by reference, incorporates and reiterates

17 the allegations concerning DB's treatment by Radovan Stankovic in

18 Karaman's House during this time period.

19 After removing DB from Karaman's House in late September 1992,

20 Radovan Stankovic first took DB to an apartment in Miljevina for about ten

21 days, and then he moved her to an apartment in the Lepa Brena apartment

22 block in Foca. During this entire time, Radovan Stankovic treated DB as

23 his personal property, forcing her to work and subjecting her to repeated

24 sexual assaults.

25 Radovan Stankovic released DB to Montenegro on 3 November 1992.

Page 51

1 By the foregoing acts and omissions, Radovan Stankovic committed:

2 Count 5: Enslavement, a crime against humanity punishable under

3 Article 5(c) of the Statute of the Tribunal.

4 Count 6: Rape, a crime against humanity punishable under Article

5 5(g) of the Statute of the Tribunal.

6 Count 7: Rape, a violation of the laws or customs of war,

7 punishable under Article 3 of the Statue of the Tribunal.

8 Count 8: Outrages upon personal dignity, a violation of the laws

9 or customs of war, punishable under Article 3 of the Statute of the

10 Tribunal.

11 JUDGE EL MAHDI: [Interpretation] Thank you very much, madam.

12 Can I take it and conclude that you are not going to enter a plea

13 today?

14 So for the record, we state quite clearly that Mr. Stankovic will

15 not be entering a plea today. You will have time to reflect upon the

16 matter in order to determine your position within the 30 days -- the

17 coming 30 days.

18 After this hearing, I think that we will have to have a Status

19 Conference, but before we do so, I propose a ten-minute break. So the

20 proceedings are adjourned until 10.00.

21 --- Whereupon the Further Appearance adjourned

22 at 9.45 a.m., to be followed by a Status Conference