120601ED

Page 27607

1 investigating judge to secure the release of suspects who were suspects

2 of -- of suspect perpetrators of some of the most serious war crimes.

3 One of them is P1284.38. This is the case of the killings in Velagici.

4 So this witness agreed that they be released from mandatory detention and

5 the crime -- the crime in Velagici is something that Mr. Zupljanin is

6 charged with.

7 And, finally, let me speak about the testimony of Mr. -- or

8 Comrade Dragicevic, as he wanted to be addressed during his testimony.

9 JUDGE HARHOFF: Thank you for this, Mr. Aleksic.

10 Before we proceed to the next witness, I'm not sure I fully

11 understood the impact of -- of your presentation regarding this witness.

12 You said that he had never seen the guide-lines for the work of military

13 prosecutor's office and that he had then asked the investigating judge to

14 secure the release of two suspects.

15 What is the implication of that? Can you just clarify briefly?

16 MR. ALEKSIC: [Interpretation] Your Honours, he performed the duty

17 of the military prosecutor at the time. And in the context of him never

18 having seen such a document, how was he able to perform the duty of a

19 Military Prosecutor; this being one of the basic documents governing

20 their work under those circumstances? That was the meaning of my

21 submission.

22 And as for ...

23 JUDGE HARHOFF: So your point is that -- that this gentleman was

24 incompetent as a Military Prosecutor; is that it?

25 MR. ALEKSIC: [Interpretation] Yes, yes. Correct.

Page 27608

1 JUDGE HARHOFF: Thanks.

2 MR. ALEKSIC: [Interpretation] Thank you.

3 As for this other case, he broke the Law on Criminal Procedure.

4 He even asked that the criminal proceedings against these individuals be

5 stayed or suspended. There was a term that, in the B/C/S, does not even

6 exist in the legislation, and this is quite apart from the fact that he

7 asked that these individuals be released.

8 May I proceed?

9 JUDGE HARHOFF: Please. Go ahead.

10 MR. ALEKSIC: [Interpretation] Thank you.

11 As for Witness Radulovic, he testified extensively. I would ask

12 Their Honours to carefully examine his testimonies, both his answers

13 given on direct examination and cross-examination. In great many of

14 these answers, he changed his position. I would also suggest that

15 Their Honours analyse in parallel the testimony of Witness Sajinovic and

16 Witness Radulovic. Witness Sajinovic on the issue of some of the very

17 important issues, such as the establishment and the method of work of the

18 Milos Working Group, who their sources of information were and when and

19 how they forwarded information to Mr. Zupljanin, the answers differ from

20 the answers provided by Witness Radulovic.

21 I would now like to address the portion of the Prosecution final

22 trial brief where it is stated that Mr. Zupljanin had effective control.

23 Our learned friend Ms. Butler said something about it. Our position is

24 quite the opposite for a number of reasons; Mr. Zupljanin did not have

25 effective control. In paragraph 843 of the final trial brief of the

Page 27609

1 Prosecution, it is stated that one of the ways in which Mr. Zupljanin

2 exercised his control was by asking to be regularly informed by his

3 subordinates, and reference is made to document P374.

4 In our view, the document lends support to our case. The reason

5 why the document was sent was due to the fact that there was no thorough

6 or regular reporting, and that is why at one point Mr. Zupljanin said,

7 Daily reporting by the SJB to the operations duty officers of the CSB BL

8 on important events is riddled with shortcomings and faults, and they

9 consist of the following, and there follows a list of these.

10 In his testimony, Witness SZ-003 stated that standard practice

11 and procedures governing reporting were not always adhered to in terms of

12 the accuracy of information or timeliness, some of the dispatches were

13 incomplete, some of the incidents were not reported on at all or were not

14 reported on in time, and some people were not diligent enough in

15 compiling these reports. And this can be found at transcript page 24399

16 to 24400.

17 At paragraph 844, the Prosecution say that, in addition the

18 written correspondence, Mr. Zupljanin attended meetings, and mention is

19 made of the 11th of July meeting and his -- his words about the rounding

20 up of the Muslims and their detention in -- in camps.

21 Let's look at what it is exactly that Zupljanin said at this

22 meeting. Namely, that the army and the Crisis Staffs, or, rather, the

23 War Presidencies were asking that as many Muslims be gathered but they

24 say that the conditions in these camps are poor, there is no food and

25 some individuals do not respect international norms, et cetera. This

Page 27610

1 will be discussed further later on.

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 THE INTERPRETER: The interpreter didn't catch the pseudonym.

12 MR. ALEKSIC: [Interpretation] -- also confirmed that. As for

13 these --

14 MS. KORNER: Sorry to interrupt again. The witness just

15 mentioned was protected.

16 MR. ALEKSIC: I just said strike it.

17 MS. KORNER: You did?

18 MR. ALEKSIC: Yes.

19 MS. KORNER: [Microphone not activated]

20 MR. ALEKSIC: [Interpretation] I apologise.

21 As for the dispatch in document P535 which Zupljanin forwarded to

22 the chiefs of the -- of the SJB in which it is noted that all the

23 employees have to sign the solemn oath, it should be noted that it was

24 forwarded on the basis of a dispatch written by Mr. Mandic, which is

25 P535, which was not intended as a means of discrimination against

Page 27611

1 non-Serbian population but, rather, the means of implementing the law of

2 the new state, as the constitution had been declared and the

3 Law on Internal Affairs had come into force at the time.

4 The Prosecution witness Tutus confirmed this argument, saying

5 that the new solemn oath was no different from the previous one which was

6 in force during the SFRY and which all the police employees were also

7 obliged to sign.

8 What is important is that Mr. Zupljanin advocated multi-ethnicity

9 which can be found in P5353 under item 2 which says:

10 "It is in our interest to preserve the ethnic composition of

11 employees in the SJB in accordance with the ethnic composition of the

12 population in the municipality."

13 Further, it is not correct that Mr. Zupljanin was aware of what

14 was going on in Sanski Most as expressed in this paragraph. The Defence

15 claims that it was only on the 9th of September, 1992, that in the

16 dispatch which he -- Witness ST-161 sent, Zupljanin learned from this

17 dispatch that the policemen from that SJB were resubordinated to the army

18 in Manjaca. We will discuss this document later on in further detail.

19 There is no evidence that the chief of the SJB from Kotor Varos,

20 Savo Tepic, ever personally visited Mr. Zupljanin. ST-167, on the

21 contrary, testified that for Tepic this was just an excuse to leave

22 Kotor Varos for private reasons. That is T12417.

23 In paragraph 848, it is claimed that Drljaca was a close

24 associate of Mr. Zupljanin who carried out his orders and reported to

25 Mr. Zupljanin.

Page 27612

1 As for the situation in Prijedor and the role of the

2 Crisis Staff, the local commanders of the VRS and their influence on the

3 operation of the SJB, the SJB Prijedor - we will discuss that in more

4 detail later on - but I may say that because of all this the Prijedor SJB

5 was completely independent and was acting without any influence from the

6 Banja Luka CSB.

7 Prosecution witness Gajic confirmed that during the indictment

8 period the SJB chiefs often acted beyond the framework of their duties,

9 that they refused to obey Zupljanin's orders and instead acted in

10 accordance with the orders of the local Crisis Staffs, or, rather, the

11 army which can be found on page 12910. He especially emphasised that the

12 SJB Prijedor disobeyed. It was evident that Simo Drljaca was not

13 implementing the decisions of the Banja Luka CSB which is page 12910 and

14 14.

15 Witness Macar, who was a high ranking employee of the Republican

16 Ministry of the Interior at the time, also testified that on the occasion

17 of his visit to Prijedor, Drljaca told him that neither the Banja Luka

18 CSB nor the Ministry of the Interior was superior to him, i.e. to

19 Drljaca, and that his real superiors were the municipal Crisis Staff and

20 the municipal authorities, which can be found on pages 22972 through to

21 79 of the transcript.

22 The fact that testifies to Zupljanin's lack of authority for

23 relieving Drljaca of his post is that the local municipal assembly from

24 Prijedor relieved Drljaca of his duty in 1993 only after Mr. Krajisnik,

25 who was the parliament Speaker at the time, had visited Prijedor. And

Page 27613

1 even though our colleagues said yesterday that there is no evidence of

2 that in the case file, I would like to point out to the Trial Chamber

3 that Prosecutor witness Miskovic talked about that at transcript

4 page 15273.

5 As for the problems relating to the conduct of Mr. Drljaca,

6 Mr. Zupljanin discussed that with Prosecution witness Radulovic. He

7 informed him that it was impossible to remove Drljaca, that there had

8 been various attempts to do so by some armed groups but that they had all

9 been unsuccessful because Drljaca was simply too powerful because of his

10 close relations with the local Crisis Staff and the local commanders of

11 the VRS.

12 Radulovic further testified that the removal of Drljaca from his

13 power base in Prijedor would be -- would have a very uncertain outcome

14 and could cause even more problems, which can found on transcript

15 page 11088.

16 As for the situation in Prijedor we should take into account that

17 612 policemen from the SJB Prijedor were resubordinated to the army, the

18 local brigades in combat operations, without any approval of the

19 Banja Luka CSB. P689 is the reference.

20 In paragraphs 856, 857 and 862, of its final brief, the

21 Prosecution claims that Zupljanin did not take my measures to take

22 disciplinary proceedings against policemen nor did he file criminal

23 reports against them. The Defence refers to a section of its final brief

24 where we deal with Count 12(g) of the indictment and where we clearly

25 show that what the attitude of Mr. Zupljanin was.

Page 27614

1 Further, the Prosecution claims that -- that can be found in

2 paragraphs 864 through to 867, 869 and 870, they claim that Crisis Staff

3 did not influence Mr. Zupljanin's effective control or reduce it. We

4 invite the Trial Chamber to review section 12 B of our final brief, where

5 we deal with this topic.

6 Many Prosecution witnesses testified that the municipal

7 Crisis Staffs frequently, together with the army, usurped Mr. Zupljanin's

8 ability to issue orders that would be complied with. It is mentioned

9 there that Mr. Zupljanin forwarded some decisions of the Crisis Staffs

10 but we claim that in his dispatches, Mr. Zupljanin forwarded the

11 decisions of government organs which were in accordance with the law, as,

12 for example, P594 and P1883 show.

13 In Exhibit P594, this is a decision that no one is allowed to

14 leave the territory of Krajina carrying an amount more than 300

15 Deutschemarks without a certificate from a bank that the money was taken

16 from the bank. We claim that such a law had already existed in the

17 former Yugoslavia and that the objective was to prevent money being taken

18 out from the country. Similarly, P1883 was an enactment whose purpose

19 was that able-bodied men, regardless of their ethnicity, should not avoid

20 their legal duty and that they should respond to mobilisation call-ups.

21 Paragraphs 871 to 881 of the Prosecution trial brief once again

22 contains the claim that the VRS did not reduce Mr. Zupljanin's effective

23 control. We discuss that in detail in our final brief. And as for

24 resubordination, the position of the Defence is completely clear.

25 During the trial, the evidence showed without any doubt that

Page 27615

1 resubordination was the factual situation which was caused by the

2 principle of the singleness of command. We will discuss this further a

3 bit later on.

4 Let me just point out that Expert Kovacevic so discussed that, so

5 did the Trial Chamber witness Lisica, and we should note that these

6 positions of the Defence were confirmed by many Prosecution witnesses.

7 We discuss that in detail in paragraphs 222 through to 228 of our final

8 brief.

9 Further on, in paragraph 875 of its final brief, the Prosecution

10 claims that Mr. Zupljanin distinguished between policemen who were

11 resubordinated to the army and were involved in combat activities and

12 those who were not resubordinated. They give reference to Exhibit P624.

13 Reading this document in detail and analysing it shows clearly that

14 Mr. Zupljanin had in mind, on one hand, the policemen who had been

15 resubordinated to the army in combat operations, and, on the other hand,

16 members of the police who had been permanently assigned to the army; that

17 is to say, they were not members of the police anymore but they had

18 rather become members of the army and had different tasks.

19 As for resubordination, my learned friends from the Prosecution

20 changed their position over the last few days and said that even if this

21 did happen, that is to say, even if police members had been

22 resubordinated to the army, the resubordination only had to do with

23 combat operations on the front line.

24 Prosecution witness Krejic talked about this, and he was the SJB

25 chief in Skender Vakuf. On pages T14042 and 043, he said that at the

Page 27616

1 time in August 1992 one of his units was resubordinated to the local VRS

2 brigade and that the only task of this unit was to secure a certain road.

3 As for the tasks which the resubordinated policemen had to carry

4 out, we should pay attention to Exhibit P5613 [as interpreted] dated the

5 18th of September, 1992, in which Mr. Zupljanin -- I apologise. We're

6 talking about the 18th of September, 1992. And it is a document in which

7 Mr. Zupljanin says that there are problems and that outside the knowledge

8 of the chief of the SJB and CSB, policemen are engaged in combat

9 operations. In accordance with the agreement with the highest ranking

10 representatives of the army, it was necessary, as he says, and the

11 situation is repeated even in September 1992.

12 As for the communications system and how it operated, this is

13 discussed in paragraphs 881 through to 886 of the Prosecution final

14 brief. My learned friends touched upon that yesterday.

15 Witness ST-167 who is an expert in this field, when presented

16 with Exhibit P1468 which is one of the reports for the year 1992, the

17 witness testified that the statistics show that there was a sharp drop in

18 the number of sent and received dispatches in the period between the 11th

19 of June and the end of 1992, and that that also refers to the exchange of

20 dispatches between the Banja Luka CSB and the Kotor Varos SJB.

21 Prosecution witness Kezunovic, confirmed that in Exhibits P595

22 and P621 contain precise statistics about the number of dispatches sent

23 during the first six months of 1992 and also the period between the 1st

24 of July and 30th of September, 1992. My learned friend Mr. Krgovic

25 talked about that yesterday so let me not repeat that. But I will say

Page 27617

1 that the significance of these numbers is emphasised in the report in the

2 number of dispatches sent in the first nine months of 1991. That report

3 contains the total number of more than 200.000 dispatches sent and

4 received. Even though the Prosecution claims that there is no evidence

5 for this position, except from the testimony of Witness Kezunovic, we

6 point to Exhibit 2D52, which is a report on the work of the Banja Luka

7 CSB for the first nine months of 1991, in which on page 12 - in English

8 version it's page 11 - it says that the total number of the received

9 dispatches is 188.168 and those that were sent were 39.858. It should be

10 noted that this information covers 15 SJBs which belong to the CSB at the

11 time, as opposed to the 26 SJBs which were part of the CSB in 1992.

12 This was also discussed by the Prosecution witness Rakovic who

13 explained the problems which existed in Banja Luka and the entire Krajina

14 area. There were periods when the electricity was down for two months in

15 Banja Luka and no fuel was available.

16 JUDGE HARHOFF: Mr. Aleksic, I'm sorry to interrupt to you. Our

17 legal officer just drew the Chamber's attention to something that you

18 said in relation to -- to an exhibit. It's page 20, line 8, and the

19 transcript records that you referred to an Exhibit P5613. I don't think

20 we got that far. We got far enough, for sure. But we didn't raise it

21 until -- to the 5.000s.

22 MR. ALEKSIC: [Interpretation] Yes, of course, Your Honours. It

23 was a mistake. It is Exhibit P613.

24 JUDGE HARHOFF: Thank you so much.

25 And, again, please forgive me for interrupting you.

Page 27618

1 MR. ALEKSIC: [Interpretation] Due to the shortage of time I

2 cannot go into great detail on the issue of communications, but I would

3 like to say that Mr. Zupljanin at the collegium meeting which was held on

4 the 11th of July, 1992, in Belgrade said that the main communications

5 system had been destroyed.

6 Furthermore, when it comes to reporting, the Prosecution says

7 that the -- that Mr. Zupljanin received reports drafted by the

8 Milos Group and this doesn't arise from either the testimony of

9 Mr. Radulovic or the testimony of the Defence witness Sajinovic who said

10 that the Milos Group reports were not sent to their superiors but,

11 rather, they were sent to the CSB in Belgrade. This is on page 25120.

12 To corroborate this part of Sajinovic's testimony, I would like

13 to draw the Trial Chamber's attention to P1328.13. This is an Official

14 Note which was drafted in 1993 at the state security CSB Banja Luka and

15 in which it says something about the establishment of the Milos Group,

16 and I quote:

17 "Bearing in mind that over two years ago we were officially

18 established as a group intended for co-operation with the MUP of Serbia,

19 we had an occasion on several occasions to spend some time and get in

20 touch with the colleagues in the MUP of Serbia. From the beginning, we

21 agreed amongst ourselves that we will focus our interest on collecting

22 intelligence about the enemy armed formations, the enemy intelligence

23 services, associates, and other collaborators of the enemy," and so on

24 and so forth.

25 In paragraphs 891 to 909 of the Prosecutor's final brief, there

Page 27619

1 is a reference to the information that Mr. Zupljanin had with regard to

2 detention centres. In paragraph 891 there's a reference to a document

3 which is P1560. We claim that the introduction into this document

4 says -- or, it arises from that introduction that that decision was in

5 keeping with the decision of the municipal Crisis Staff in Prijedor and

6 that the purpose of that decision was to detain people who were captured

7 in combat and who had to be interviewed.

8 The Defence repeats and reiterates its position that the tone,

9 the language, and the official nature of this order points to the fact

10 that this was a military facility. Moreover, it arises from the

11 testimony of Mr. Radulovic on page 11126 that Mr. Drljaca bypassed

12 Mr. Zupljanin and he deprived him of any information.

13 Furthermore in paragraph 891, the Prosecution claims that in

14 May Radulovic twice reported on -- the problem of the mass arrests of the

15 non-Serbian population and that the detainees were not provided with

16 adequate food or accommodation. The Prosecution refers to two reports

17 and by the Milos Group, and I already said that there is no single piece

18 of evidence to the effect that those reports were ever sent and that

19 Mr. Zupljanin received the Milos Group reports.

20 As for the crimes committed in certain detention centres, and

21 Mr. Zupljanin's knowledge about that, a lot was said about that in our

22 final brief. I would like to add to what was already said, that

23 Zupljanin did not know anything about those crimes. Our thesis was

24 corroborated by the fact that the information that he received from

25 Radulovic, and our learned colleagues said that that had happened several

Page 27620

1 days before the collegium meeting on the 11th of July, and that he

2 immediately reported that to the collegium, and he demanded that measures

3 should be taken. In August, he set up a commission whose task was to

4 examine the conditions and the treatment of the detainees in those

5 facilities. This you will find in P601 on the revisited issue of that

6 commission a bit later.

7 Zupljanin's lack of knowledge about the events in Prijedor was

8 testified about by Witness ST-241. He was one of the employees of the

9 National Security Service and, as such, he was sent to Omarska. The

10 witness testified that there were never any contacts between the

11 operatives who participated in interviewing the suspects in Omarska and

12 Mr. Zupljanin. You will find this on page 16745.

13 Zupljanin's lack of knowledge about the conditions in Omarska is

14 corroborated by document P1560. It is stated in this order:

15 "I strictly forbid conveying information of any sort with regard

16 to the functioning of this collection centre. All official documentation

17 has to be kept at the centre and it cannot be -- it cannot be taken out

18 of the centre or destroyed without the approval of the chief of the

19 police station in Prijedor."

20 Drljaca emphasised the weight of any breach of this order and he

21 added that he demands all the personnel, and especially authorised

22 officials, to strictly adhere to the instructions provided herein.

23 When it comes to the allegations in paragraph 9002, according to

24 which Mr. Zupljanin visited Omarska twice, save for the testimony of

25 Witness ST-23 there is no other evidence. I have already addressed the

Page 27621

1 credibility of this witness, so I wouldn't want to waste any more time on

2 that.

3 Witness Jankovic testified that before the arrival of the

4 delegation to Omarska on the 14th of July, Drljaca had rearranged

5 conditions in the prison. Because of that delegation, Miskovic admitted

6 that the detainees had looked unkempt and that they had not been clean

7 shaven, and Zupljanin drew everybody's attention to everybody at the

8 meeting on the 11th of July. In any case, he did not mention any signs

9 of physical maltreatment.

10 Srdic, the president of the Red Cross in Prijedor, confirmed that

11 the Red Cross had opportunities to visit the prisoners and bring them

12 food and medicines.

13 When it comes to paragraph 904, it is stated in that

14 paragraph that General Talic stated that no single soldier was informed

15 in the massacre at Keraterm on the 25th of July. The position of the

16 Defence is that we do not challenge the fact that there was indeed crime

17 committed against the prisoners in Keraterm, including also the murder in

18 room 3.

19 Prosecutor Witness ST-151, who was at Keraterm at that time,

20 stated that people who stormed into the room 3 were not guards but

21 soldiers who had arrived from outside, and those who controlled Keraterm

22 and Trnopolje wore olive-drab and camouflage uniforms. This was

23 subsequently confirmed by Prosecutor Witness ST-183. He stated that

24 Colonel Arsic had taken over command in Prijedor and subordinated local

25 police forces.

Page 27622

1 When it comes to a paragraph 913, we --

2 THE INTERPRETER: Interpreter's correction: Paragraph 919.

3 MR. ALEKSIC: [Interpretation] We contest the allegations in this

4 paragraph where it is stated that at the beginning of -- at the end of

5 July or beginning of August Radulovic informed Zupljanin about a meeting

6 in Teslic. Amongst others, Generals Mladic and Lisica were also there

7 and the leadership of the army ordered the local police to expel the

8 non-Serbian population from that territory. This is not true and this

9 was confirmed by the Prosecution Witness ST-191 who attended the meeting

10 himself. He testified that the only time when Mladic was in Teslic that

11 was in late September or early October, and that was the only time that

12 Mladic visited Teslic, that there were about 30 to 35 people attending

13 that meeting.

14 I would like to mention that at that time Mr. Radulovic had

15 already left Teslic. When Witness 191 was faced with this document, the

16 witness said that nothing had been said at the meeting about ethnic

17 cleansing and that the report is completely fabricated and that its

18 contents completely false. The witness said nothing that is mentioned

19 here did not happen at the meeting. That is on transcript page 18548.

20 Lisica was also asked about the document and about that meeting

21 at transcript page 26902. He was also asked about Mladic's diary.

22 According to Mladic's diary, that meeting happened on the

23 5th of December.

24 In paragraphs 922, the Prosecution says that ST-174 constantly

25 complained to Zupljanin about the Serbian police that committed crimes

Page 27623

1 against the non-Serbian population. We -- I already discussed the

2 credibility of this witness at the very outset of my presentation, so I

3 don't want to repeat myself. We're claiming that Mr. Zupljanin undertook

4 a number of measures against such unlawful actions. The Prosecution

5 witness ST-225 confirmed that he was a witness in the police

6 investigation into the explosions and planting explosive devices on the

7 houses of non-Serbs. He also supported the position of the Defence that

8 it was the army that should have investigated the aforementioned

9 incidents. He also confirmed that soldiers, when they were coming back

10 from the front line, usually shot in the air and caused trouble. On one

11 occasion they even set fire near Podpecna [phoen] mosque.

12 When it comes to paragraph 923 and the red van which is mentioned

13 in there, the Defence would like to recall the testimony of

14 Witness ST-223, who stated in his testimony that in any case the police

15 did whatever they could and he admitted that he was not absolutely sure

16 whether there -- anything was done against those persons, whether they

17 were, indeed, members of the army or perhaps the police.

18 When he was faced with the evidence, according to which Zupljanin

19 had ordered the arrest of Goran Gataric or Gavrin, for whom ST-223

20 believed that he was one of those who rode in the red van, later on it

21 was established that Gavrin was a soldier and a report by the military

22 police confirmed that he was arrested in 1993 on account of the crimes

23 that he had committed in 1992.

24 In paragraph 799, it is stated that Zupljanin, when he wanted to

25 do so, could undertake certain measures, and the example of Teslic is

Page 27624

1 mentioned and the arrest of the Mice Group. I would kindly ask the

2 Trial Chamber to pay attention to the part of the testimony of

3 Witness Radulovic on transcript pages 11087 and 11088 where he explained

4 the difference where he said why it was possible in Teslic and not in

5 Prijedor, primarily in Prijedor, and in other regions as well.

6 In paragraph 803 there is a reference to the fact that Zupljanin

7 had given authority to SJBs to investigate grave crimes. It was not

8 Zupljanin's decision. It was the government of the Republika Srpska that

9 made the decision. L55 says that basic courts became responsible for all

10 crimes, and, in line with that, basic courts became competent for

11 investigation of all the crimes, so the SJBs were supposed to investigate

12 all crimes including the gravest of crimes.

13 As for the operative plan, or paragraph 804, it is stated in here

14 that Mr. Zupljanin, although he already had information from two previous

15 reports about the number of crimes committed in the course of April, he

16 did not approval the plan before the 25th of May. I invite the

17 Trial Chamber to carefully inspect the document. I believe it is very

18 important. It is stated in that document this was the plan to elucidate

19 robberies, terrorism, extortions, and other such crimes, and that those

20 crimes escalated in number in Banja Luka from the beginning of April of

21 that year.

22 In that paragraph, the Prosecution criticises Mr. Zupljanin for

23 having done very little and that what he did was negligible. In that

24 document, there's a detailed list of measures that were supposed to be

25 taken. It is stated that over 40 people had to be arrested. It is

Page 27625

1 stated how many crimes were committed. It is stated that 76 explosive

2 devices were planted. Some very specific measures are listed as how

3 things had to be done, and at the end of the document Mr. Zupljanin says

4 that since the aforementioned persons organised themselves as members of

5 the SOS, that they were well armed and some of them had even been

6 mobilised into JNA units, their arrests had to be carried out by the

7 units of the military police. In order to [indiscernible] the plan

8 efficiently, things had to be co-ordinated with regular military courts.

9 And, at the end, it is stated:

10 "Until the moment the military prosecutor's office and the

11 military courts are established, there are no conditions in place for the

12 full-on implementation of the plan because these people are mostly

13 military conscripts, former TO members, which is why civilian courts and

14 prosecutor's office cannot be involved in the conduct of proceedings

15 against them."

16 MR. KRGOVIC: [Interpretation] Your Honours, I am going to say

17 just a few words before the break.

18 First, at page 13, line 18, of today's transcript, there's an

19 imprecision. As it came in, it turns out as if Mr. Aleksic disagreed

20 with what Ms. Butler said, and that was, of course, not the case. He

21 agreed with what Ms. Butler said and disagreed with what the Prosecution

22 had to say.

23 Let me, Your Honours, turn to several matters arising from the

24 30 May closing arguments of the Prosecution, specifically page 27440,

25 where the Prosecution say that in the case where a reserve policeman is

Page 27626

1 taken off the list of the police and transferred to the army, that it may

2 so happen that a member of the police who committed a disciplinary or

3 criminal offence, upon transfer to the army, may commit a similar crime

4 and since -- since the VRS was not privy to what sort of the conduct he

5 had engaged in before joining the army.

6 Now this statement is completely untrue. The evidence,

7 documentary and the testimonies, confirm that whenever an individual was

8 taken off the reserve police force and transferred to the army, this

9 would be reflected in the personnel file which would also be sent to the

10 army through the Ministry of Defence.

11 Now, in view of the fact that the personnel file of every

12 individual had to contain details about the individual's disciplinary and

13 possible disciplinary procedures against him, this position expressed by

14 the Prosecution does not reflect the actual state of affairs.

15 Furthermore, at paragraph 738 of their final brief, the

16 Prosecution cited Defence exhibit, 2D63. They discussed the fact where

17 it was that the members of the special police unit ended up after the

18 unit's disbandment. I established that in the English translation in

19 e-court the first page of this document is missing.

20 Can we call up 2D63 now, page 1.

21 THE INTERPRETER: Can Mr. Krgovic speak into the microphone,

22 please.

23 MR. KRGOVIC: [Interpretation] Look at the first part where it

24 says that most of the members of the former special detachment were

25 within the war-time assignments of the VRS and not on the lists of the

Page 27627

1 police force or any sort of special police that was allegedly set up by

2 Zupljanin. And there is no evidence to prove that Zupljanin set up any

3 special police units in the course of 1992, as of Autumn 1992, onto 1993.

4 Your Honours, I would like to say a few words about

5 Mr. Stojan Zupljanin's personality and character, and I will be sharing

6 this topic with my learned friend, Ms. Butler. Perhaps we can take the

7 break now so we can look into the part that we will share and see if we

8 can reduce it somewhat and bring our closing arguments to an end.

9 JUDGE HALL: Yes. So we would return in 20 minutes.

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

11 --- On resuming at 10.53 a.m.

12 JUDGE HALL: Yes, Mr. Krgovic [Microphone not activated]

13 MR. KRGOVIC: [Interpretation] Your Honours, in their final trial

14 brief and closing arguments, the Prosecution tried to represent

15 Stojan Zupljanin as a person who was crucial and played a key role in the

16 persecutions and murders.

17 It is our position, Your Honours, that there is considerable or

18 overwhelming evidence that refutes these positions advanced by the

19 Prosecution, and I'm referring primarily to some of the key documents

20 that my colleague Aleksic mentioned, including P2065, P355, P160, the

21 last one being very important because it is the 11th of July speech by

22 Mr. Zupljanin where he pin-pointed some of the key problems in the

23 working of the MUP; among those things, for the first time a senior

24 high-ranking officer pointed to the existence of camps, the prevailing

25 poor conditions in them long before this became public knowledge. He

Page 27628

1 indicated the problems that we addressed during this trial, the problems

2 with the army, resubordination, the operation of the communications

3 system, the fact that the judiciary was not working, and many other

4 things.

5 If Mr. Zupljanin voluntarily, as the Prosecution put it,

6 participated in the development of a joint criminal plan, why did he

7 address these issues on the 11th of July? Why did he advocate that

8 better conditions be put in place? Why did he intercede and advocate

9 that they be released?

10 The crucial document that the Their Honours should bear in mind

11 when deciding about the character of Mr. Zupljanin and his sentence is

12 2D25. Look at the start -- look at the beginning of the document,

13 Your Honours, and find there how it is that Mr. Zupljanin described the

14 situation in the area of responsibility of the Security Services Centre.

15 He speaks about armed rebellion, acts of violence, crime, looting,

16 flouting the law, civilian or civil disobedience and all the other

17 occurrences that characterise the situation in Krajina at the time. What

18 you will not find in any other document is to be found at page 2 of this

19 document where he says that the situation, such as this one, creates fear

20 among other ethnic groups and unavoidably causes ethnic division and a

21 lack of confidence in the institutions of the system.

22 Would this be the way that these matters would be addressed by a

23 person who was an important member of the -- of a criminal enterprise?

24 He does not hesitate to say at the bottom of the second page and at the

25 top of the third page of this document and to criticise and draw the

Page 27629

1 attention of the police in public security stations, to all these various

2 facts.

3 And, at the end, Your Honours, you will see that there are 11

4 items containing 11 orders that he issued in -- in the document. Namely,

5 that the failure to obey any orders, including the army and Main Staff,

6 would be contrary to the law; that no tasks should be taken on, such as

7 to guard prisoners, who have been unlawfully detained; taking essential,

8 resolute and uncompromising actions to shed light on or detect any crime

9 present in stations; filing criminal reports to prosecutors; and, where

10 there is no prosecutor's office active in one's area, reports should be

11 filed to the second prosecutor closest to the area.

12 A detailed analysis of this document will undoubtedly show that

13 this is not the sort of the situation to which an old say would apply

14 that the only necessary thing to fight evil would be for a good man not

15 to do anything.

16 Your Honours, in assessing the evidence, look at P601 and P595,

17 P621, and P624. From these documents it will become clear to you that

18 Mr. Zupljanin was committed to the maintenance of law and order for all

19 individuals regardless of their religion or ethnicity, that he was not

20 afraid to appoint to the unlawful activities on the part of his

21 subordinates, or those who were supposed to be his subordinates, and that

22 he did everything in his power to present such activities.

23 Finally, I'd like to remind Their Honours of two events that shed

24 light on the personality of Mr. Zupljanin. Namely, the events in Teslic,

25 where Mr. Zupljanin secured the release from detention several hundred --

Page 27630

1 of several hundred Muslims and Croats in the course of the Mice action;

2 and the incident along the Stanari-Teslic road where Mr. Zupljanin

3 prevented the killing of 600 non-Serbs. The appropriate references are

4 at pages of the transcript --

5 THE INTERPRETER: Can Mr. Krgovic please repeat the reference

6 slowly.

7 MR. KRGOVIC: [Interpretation] 2598 to 2599. Transcript pages

8 11020 and 11021.

9 Your Honours, my brief presentation so far and the documents and

10 exhibits I referred to did not reflect anything of the kind in this case

11 or in the cases that are before the BH State Courts, what -- Zupljanin's

12 words and Zupljanin's actions. That's what I meant.

13 Your Honours, I have concluded my presentation. I will now give

14 the floor to Ms. Butler who will be speaking about sentencing and some

15 other legal issues.

16 MS. BUTLER: Good morning, Your Honours.

17 I will now make some short submissions on matters of law and then

18 sentencing, and that will conclude the presentation for the

19 Zupljanin Defence team.

20 In a criminal trial, Your Honours, there are many cumulative

21 elements that must be proved beyond a reasonable doubt. Each and every

22 one has to be proved, and if one fails, the whole case fails.

23 We say that the Prosecution has not proved every single element

24 of any of the modes of liability that they put in their indictment.

25 Unfortunately, I don't have the luxury of time to go through the complex

Page 27631

1 web of liability that is alleged against my client, but I will make some

2 brief and I hope illustrative comments to demonstrate my point in

3 relation to joint criminal enterprise in relation to command

4 responsibility, and aiding and abetting.

5 For the sake of clarity, the Defence also maintain that the

6 Prosecution is a long way off proving the other modes of liability

7 charged in the indictment; that is, planning, instigating, and ordering.

8 The Prosecution themselves may also recognise this, as despite

9 the more than 1.000 paragraphs in their beautifully put final brief and

10 despite having a number of specific sections dealing with modes of

11 liability, there is no discussion of Mr. Zupljanin's apparent liability

12 pursuant to the doctrines of planning, instigating, or ordering. It is

13 the Defence submission that this omission speaks volumes about the

14 strength of the Prosecution's evidence on these modes.

15 I will turn first to joint criminal enterprise, or JCE. For

16 better or for worse, this doctrine is now part of the landscape of this

17 Tribunal. However, as the Appeals Chamber has taken care to emphasise in

18 the Brdjanin case, the doctrine may not be applied so as to give rise to

19 guilt by mere social. That is not enough. As the Appeals Chamber was

20 keen to highlight in that case: All elements of the case must be proved

21 by the Prosecution beyond a reasonable doubt.

22 In her submissions, my learned friend, Ms. Korner, acknowledged

23 that there is no direct evidence of Zupljanin's alleged discriminatory

24 attitude towards non-Serbs. As she put it at transcript T27365 Zupljanin

25 was not a Brdjanin, he wasn't a Vukic, he wasn't a Kalinic. I can see my

Page 27632

1 learned friend shaking her head and I will correct that. She did go on

2 to assert that if you look at his actions, they have no other explanation

3 but of his wholehearted endorsement of and involvement in a Bosnian Serb

4 criminal plan.

5 Now, Your Honours will be well aware of the test for conviction

6 for a JCE where it relies upon circumstantial evidence. We say, and this

7 has been affirmed recently by the Haradinaj Trial Judgement, that

8 participation in a JCE, when relied upon by some circumstantial evidence,

9 must be the only reasonable conclusion on the evidence.

10 Your Honour, in our respective submission, the Prosecution has

11 not proved to the requisite standard that there is no other theory that

12 could explain Mr. Zupljanin's conduct except for his participation in a

13 JCE. Despite all their hard work, despite all their diligence, the

14 Prosecution evidence just does not withstand scrutiny on this issue.

15 This is because the Defence suggest that Mr. Zupljanin's good

16 character is such that it tends to negate the suggestion that he

17 willingly participated in a JCE. Now, we accept wholeheartedly

18 Mr. Hannis's observation yesterday that good character is not a Defence

19 to the charges. That's not what we are saying. What we are saying is

20 that if a person is of good character, and, specifically, with respect to

21 Mr. Zupljanin, is known to be non-discriminatory, that is both relevant

22 and probative for the purpose of determining his proclivity to

23 participate in a common criminal plan.

24 Your Honours will undoubtedly recall the host of evidence

25 highlighted in paragraphs 56 to 75 of our final brief which originated

Page 27633

1 from both Prosecution and Defence witnesses and which illustrates what we

2 say is the true and non-discriminatory character of my client. We say

3 that this is significant evidence and it cannot be readily dismissed.

4 When Your Honours deliberate on the evidence in this case, we

5 would ask you to ask yourself: Is Stojan Zupljanin the kind of man with

6 a burning hatred of non-Serbs? Is he the kind of man who would killing

7 commit the kinds of heinous acts that are alleged by the Prosecution to

8 be part of this JCE? Is it really possible to reconcile the police

9 officer, described by many as a person of the utmost integrity, who went

10 out of his way to treat all religions and ethnicities equally and he took

11 care during the war to ensure that businesses of local Muslims thrived,

12 is it really possible to reconcile that officer of the law with the

13 lackadaisical, uncaring and highly prejudiced individual described by the

14 Prosecution?

15 Your Honours, a JCE theory, however much work has done upon it,

16 however much analysis, however many hours are spent on it, should not be

17 accepted by strength of repetition. In our respectful submission, the

18 evidence in this case does not show that there is no other explanation

19 for Mr. Zupljanin's conduct but for his participation in a JCE.

20 I will deal next with the issue of command responsibility.

21 Your Honours will be well aware that the concept did not evolve as a

22 matter of strict liability whereby a commander is responsible for every

23 single act by every single person, whether the commander knows about that

24 act or no. The Celebici Trial Chamber said on this subject at paragraph

25 377 of its Judgement:

Page 27634

1 "Great care must be taken, lest an injustice be committed in

2 holding individuals responsible for the acts of others in situation where

3 the link of control is absent or too remote."

4 To determine whether Mr. Zupljanin was able to exercise effective

5 control in the chaotic situation that existed in the Krajina in 1992, the

6 Trial Chamber should not rely solely on his legal authority but must

7 instead study the evidence as to what practical control he had over his

8 purported subordinates. We note that the Prosecution themselves accept

9 at transcript page 27330 that the course of the relationships between the

10 political, the army, and the police, did not always run smoothly. It is

11 our case that in actual fact the relationship between these three bodies

12 was so fractured and disproportionate in terms of the real power that the

13 Crisis Staffs and the army had, that it completely subjugated

14 Mr. Zupljanin' authority over local police, who, by law, were meant to be

15 his subordinates.

16 We say that the practice of resubordination of my police officers

17 to the army to engage in combat tasks is problematic for the

18 Prosecution's case on command responsibility. This is because any

19 confusion as to the chain of command has the effect of negating the

20 existence of effective control. We say that this raises a reasonable

21 doubt as to whether Mr. Zupljanin had effective control over the

22 perpetrators of the crimes.

23 I will deal now with the matters raised on Wednesday in the

24 course of Mr. Olmsted's well-put submissions. The particular references

25 are at transcript page 27441 to 27443. In his submissions, Mr. Olmsted

Page 27635

1 referred to what he regarded as persuasive authority from the

2 Popovic Trial Judgement. In that authority, Mr. Borovcanin was found to

3 have retained effective control over RS MUP police special units even

4 when they were resubordinated and were committing crimes in Potocari. In

5 the interests of time, I won't read out the full extracts from that

6 Judgement, but I would certainly invite Your Honours to have a look at

7 that in due course. When one does, one can see that Mr. Olmsted is quite

8 correct to note that the Trial Chamber, in paragraph 1568 of that case,

9 did recall the principle of unity of command under which MUP forces

10 resubordinated to the VRS retained their internal chain of command. They

11 did find that. However, that case can be readily distinguished on facts

12 from that of Mr. Zupljanin. Quite apart from the evidence about

13 Mr. Borovcanin's receipt of a contemporaneous report from the units in

14 question and putting to one side his presence in Potocari at the relevant

15 times, paragraphs 1567 and 1568 of the Borovcanin Judgement indicate that

16 Mr. Borovcanin gave an interview to the Prosecutor in which he did not

17 contest that the troops in question were under his command and control.

18 Likewise, the evidence cited in those paragraphs indicates that

19 Mr. Borovcanin's orders were, in fact, followed by those subordinate

20 units. We suggest that these facts are very different to those in the

21 present case where we say that: First, Mr. Zupljanin's command and

22 control of his alleged subordinates is contested; and, second, in

23 practice, Mr. Zupljanin's orders were not actually followed by those

24 subordinates.

25 The next issue addressed by Mr. Olmsted was in relation to

Page 27636

1 Your Honour Judge Hall's question about the Tribunal's case law

2 supporting the proposition that a subordinate can be under the command of

3 more than one superior and that each said superior can be held

4 responsible for the subordinate's crimes.

5 Now, in answer to that question, Mr. Olmsted cited the case of

6 Strugar for this proposition at paragraph 367. Now, it may be an error

7 on the transcript, but from my study of the Judgement, I think he must

8 have been referring to paragraph 365 because in that paragraph, the

9 Trial Chamber recalled that:

10 "The test of effective control ... implies that more than one

11 person can be held responsible for the same crime committed by a

12 subordinate."

13 But, if one has a look at the context to that quote, so,

14 specifically, if you read paragraphs 361 to 366 of that Judgement with

15 care, it's plain that the Strugar Judgement, Strugar Trial Chamber, in

16 fact, as it says in terms in paragraph 361, was concerned with the issue

17 of whether a commander may be found responsible for the crimes committed

18 by a subordinate two levels down in the chain of command. So they were

19 talking about a vertical chain of command. It was specifically not

20 concerned with the proposition which Mr. Olmsted seeks to establish;

21 namely, that parallel chains of command are recognised in the case law of

22 this Tribunal.

23 Turning back to command responsibility more generally. In

24 conclusion, quite apart from the issue of effective control, given the

25 insufficient evidence to prove beyond a reasonable doubt Mr. Zupljanin's

Page 27637

1 knowledge of crimes and his failure to take measure to prevent and punish

2 those crimes, we say that he cannot, therefore, be found liable pursuant

3 to this mode of liability.

4 I will deal now with aiding and abetting. The Prosecution

5 maintain that Mr. Zupljanin is also liable for aiding and abetting the

6 crimes charged in the indictment by way of both his actions and

7 omissions. I will deal with both allegations relatively shortly.

8 First, in relation to his actions, it is plan that the elements

9 for this mode of liability cannot be made out on the evidence. There is

10 no evidence proving beyond a reasonable doubt that Mr. Zupljanin's acts

11 had a substantial effect on the commission of the crimes. It is also not

12 proved that Mr. Zupljanin took a decision to act in the way he did in

13 1992, in the knowledge that he would be supporting the individuals

14 committing indictment offences.

15 Indeed, the evidence, as was outlined in our final brief as well

16 as during these closing submissions, shows the very opposite.

17 Mr. Zupljanin was horrified by any crimes he heard about. He took steps

18 to try and prevent these occurrences and to try and punish the

19 perpetrators.

20 Second, in relation to aiding and abetting by omission, the

21 Trial Chamber will be very well aware of the limited jurisprudence to

22 date on this mode of liability. It is the Defence submission that if one

23 scrutinises the Borovcanin Trial Judgement, which is the leading

24 Judgement on this area, particularly at paragraphs 1543 to 1563, that it

25 is immediately obvious that the alleged omissions of Mr. Zupljanin in

Page 27638

1 this case are of a wholly different scale to the alleged omissions --

2 well, to the admissions, I'm sorry, of Mr. Borovcanin in relation to the

3 massacre at the Kravica warehouse.

4 For these reasons, we say that the elements of aiding and

5 abetting, either by action or omission, are not made out.

6 My final submissions refer to -- relate to the issue of sentence.

7 For the sake of clarity, it remains the position of the Defence of

8 Stojan Zupljanin that our client is not guilt, and that the only proper

9 verdict that you may return in relation to the charges is that of an

10 acquittal.

11 Although we still proclaim the innocence of our client, due to

12 the Tribunal's settled - yet still very unfortunate - practice of

13 conflating submissions as to conviction and sentence, we will take this

14 opportunity now to make some brief remarks.

15 We note in the Prosecution's final brief at paragraph 999 that it

16 says "both men," presumably meaning Stanisic and Zupljanin, are

17 responsible for crimes committed "in a series of at least 52 detention

18 facilities." The Prosecution make no attempt to distinguish between the

19 crimes for which Mr. Zupljanin is charged, which relate to 22 detention

20 facilities, and the other crimes mentioned in the indictment for which he

21 is not alleged to have been involved in any way, shape, or form. This

22 tarring of Mr. Zupljanin with crimes for which he is not charged must be

23 a mistake. It is certainly a regrettable one.

24 It is trite law to state, of course, that the Trial Chamber must

25 consider the exact role of each individual accused before determining an

Page 27639

1 appropriate sentence. The Trial Chamber must carefully take into account

2 both their intention as well as their acts and omissions. Bearing this

3 in mind, even taking the Prosecution case at its highest, for the

4 Prosecution to suggest that Stojan Zupljanin should receive a sentence of

5 life imprisonment, we say is nothing short of absurd. Not one of the

6 more than a dozen individuals convicted at this Tribunal for crimes

7 taking place in the Krajina have had a life sentence upheld on appeal.

8 Not one.

9 This kind of blanket submission as to the maximum available

10 penalty without any form of tailoring to the crimes charged, without any

11 guidance by reference to comparative sentenced handed out at the Tribunal

12 for similar crimes is of no help whatsoever to a Trial Chamber trying to

13 come to a fair and just outcome.

14 Sentences thus far handed out to individuals for crimes committed

15 in the Krajina region following a contested trial range from 40 years at

16 the highest end. That was for Stakic who was found to have orchestrated

17 and actively participated in the tragic events taking place at Prijedor.

18 And, at the low end, they go right down to five years and for that Prcac,

19 a retired police officer working at Omarska whose silence in the face of

20 crimes committed there was found to have given tacit support to the

21 perpetrators.

22 Your Honours, we say that even if, contrary to all our

23 submissions, you find that Stojan Zupljanin has played a part in the

24 allegations made against them, then in light of the lack of direct

25 evidence as to his direct involvement in those crimes, in the light of

Page 27640

1 his efforts to prevent and punish those crimes, and in light of his good

2 character and his lack of discrimination against non-Serbs, we would say

3 that a punishment at the very lowest end of that spectrum is the right

4 disposition of this case.

5 Thank you, Your Honours.

6 JUDGE HALL: Thank you, Ms. Butler.

7 I take it, Mr. Krgovic, that that was the final word from the

8 Defence of Zupljanin.

9 MR. KRGOVIC: [Interpretation] Your Honours, this concludes our

10 closing arguments.

11 I would like to inform the Trial Chamber that my client,

12 Stojan Zupljanin, would like to address Their Honours to make a few

13 points, with your leave.

14 JUDGE HALL: Yes, thank you. We have been alerted to that.

15 Yes, thank you.

16 [Trial Chamber confers]

17 JUDGE HALL: Before we inquire of counsel for the Prosecution as

18 to whether they have any submissions to make by way of rebuttal in

19 accordance with Rule 86(A), the Chamber, in the person of Judge Harhoff,

20 has one matter which he would seek counsel for the Prosecution to

21 explicate.

22 JUDGE HARHOFF: Thank you.

23 The Chamber has listened with great care to what both parties

24 have said and there was one little issue raised - I think by Mr. Olmsted,

25 but I'm not sure - that we would wish to have just some clarification, if

Page 27641

1 possible.

2 And that is the issue of whether, within the context of a JCE 3

3 crime, that is to say, a crime that was committed not as part of the --

4 the common plan but, nevertheless, was a foreseeable crime, whether the

5 Prosecution is of the view that such a foreseeable crime could also be a

6 crime that carries dolus specialus, special intent.

7 There is a discussion about this in several instances, and we

8 would just wish to know what the Prosecution's position is on this

9 matter, if possible.

10 Thanks.

11 MS. KORNER: [Microphone not activated]... we're slightly taken

12 by surprise by that, and if Your Honours would just give us a moment or

13 so to discuss that.

14 JUDGE HALL: Should we rise?

15 MS. KORNER: Your Honours, yes. [Microphone not activated]

16 moment when you say, Could we perhaps ask for a little clarification,

17 because Mr. Olmsted has, in fact -- is going to deal with the matters

18 that were the cause of some discussion yesterday in relation to the

19 resubordination and dual control - we hadn't anticipated this question -

20 could, perhaps, we inquire which particular crimes Your Honour had in

21 mind, as requiring dolus specialus.

22 JUDGE HARHOFF: Persecution.

23 MS. KORNER: Persecution, yes. Your Honours, could we come back

24 to that? It strikes me we're going to go beyond, regrettably, the second

25 break, in any event, with the matters that -- and we would welcome the

Page 27642

1 chance to discuss it over the break and then come back and give

2 Your Honour an answer.

3 Your Honours, can we deal with it in this way. As Your Honours

4 know, two matters arose during the course of our submissions yesterday --

5 the day before yesterday. The first, in relation, as he have just

6 mentioned, Mr. Olmsted's reference to, as it were, the dual chains of

7 command with which we would wish to address you on now and which has been

8 raised again by Mr. Krgovic and the Defence team for Zupljanin and then

9 Mr. Hannis on this question of the Stanisic interview.

10 However, I don't know, did Your Honours rule on whether

11 Mr. Zupljanin could have a final word?

12 JUDGE HALL: I'm sorry, I neglected to -- when I indicated that

13 we were alerted to the application would be made, I should have said that

14 the Chamber would allow him to have a word and that would be the -- the

15 last thing before we formally close.

16 MS. KORNER: I see.

17 JUDGE HALL: And coming back to the discussions that we would

18 have had earlier in the week about the time for any wrap-up legal

19 arguments, I suppose, subject to being correct, that Rule 86(A) to which

20 I alluded earlier, that what we are doing now is conflating the two

21 things. So, in other words, any -- the -- the -- any rebuttal, rejoinder

22 that we would now hear would embrace those issues which -- to which

23 counsel on both sides would have alluded earlier in the week.

24 MS. KORNER: Your Honours, I was about to say that. We -- we --

25 we do not seek to deal in rebuttal with any of the factual matters, those

Page 27643

1 that have come up, and those that we objected to we have raised

2 effectively during the course of argument.

3 We simply seek to deal with the matters of law. So if

4 Your Honours are content, then Mr. Olmsted can deal with the issue of the

5 dual chains of command, as it were, and then Mr. Hannis can deal with the

6 interview, and then I just have a few small points that arise from the

7 final briefs.

8 MR. OLMSTED: Thank you, Your Honours.

9 Firstly, yesterday, Mr. Zecevic quoted my response to

10 Judge Hall's question to suggest that the Prosecution had changed its

11 position with regard to resubordination, that we were now taking the

12 position that resubordination applied whenever the police were

13 participating in combat operations on the front lines. That is not the

14 position of the Prosecution. It has never been the position of the

15 Prosecution. We have continuously maintained throughout the trial that

16 resubordination could only occur when the police were engaged in combat

17 operation along the front lines; however, not all instances in which the

18 police did engage in combat operations along the front lines were

19 instances where they were resubordinated to the army. Rather,

20 resubordination rarely occurred during the indictment period, and it did

21 not occur in relation to any of the crimes charged in the indictment.

22 And I just point out that the CSB Banja Luka's year-end report,

23 P624, makes the distinction between police participation in combat

24 independently, and police participation in combat as a resubordinated

25 unit to the army.

Page 27644

1 So just to make that clear.

2 And we refer the Trial Chamber to paragraphs 871 to 880 of our

3 final brief where we make clear our position and the evidence on this

4 issue.

5 The legal submission I was making on behalf of the Prosecution

6 Wednesday was that even if the Chamber were to find that with regard to a

7 crime charged in the indictment a particular police unit was

8 resubordinated to the military, that does not mean, as a matter of law,

9 that the accused were no longer the superiors of that police unit for

10 purposes of command responsibility under Article 7(3) of the Tribunal's

11 Statute. Rather, under command responsibility, a perpetrator can have

12 more than one superior who has effective control over that perpetrator,

13 and each of those superiors can be held criminally liable for that

14 perpetrator's crimes.

15 There are, essentially, what I would break down into two

16 categories of Tribunal cases that support this argument. First, there

17 are a number of cases against military accused which established that

18 perpetrators can have more than one superior both within the same

19 military chain of command as well as in multiple chains of command, and I

20 refer the Trial Chamber in this case to Strugar Trial Judgement,

21 paragraph 365; the Naletilic Trial Judgement, paragraph 69; and the

22 Blaskic Trial Judgement at paragraph 303.

23 Second, there is a line of cases against civilian accused which

24 established that a -- that perpetrators can have more than one superior

25 within separate chains of command of different organs.

Page 27645

1 In particular, the perpetrators can have a civilian superior as

2 well as an army superior, and I refer you to the Aleksovski

3 paragraph 106; the Colonel Jelac Trial Judgement, paragraphs 93 to 107;

4 as well as the Popovic Trial Judgement, the paragraphs I provided on

5 Wednesday.

6 Let's take the Aleksovski case. The accused in that case was the

7 civilian warden of a prison in Lasva valley. As a Defence, he argued

8 that the guards at the prison who committed the war crimes at issue were

9 members of military police and therefore he had no superior

10 responsibility over them. The guards had their own military chain of

11 command that was responsibility for their actions.

12 The Trial Chamber disagreed finding at paragraph 106:

13 "The issue whether the guards came concurrently under another

14 authority, such as the military police commander, in no way detracts from

15 the fact that the accused was their superior within the confines of the

16 Kaonik prison."

17 Now, the Prosecution submits that an analogy can be drawn between

18 that case at what occurred in Manjaca camp in 1992. Even if the

19 Trial Chamber were to accept the Defence argument that the police

20 officers from Sanski Most and Kljuc who were sent to Manjaca by CSB

21 Banja Luka to assist with guarding that facility, were resubordinated on

22 each occasion, each shift that they went to that facility, it does not

23 automatically follow that their only superior was Colonel Popovic, the

24 camp commander. While at the camp, the colonel undoubtedly gave the

25 police officers who were performing guard duties orders and instructions.

Page 27646

1 However, the police superiors also maintained effective control over

2 these police guards, determining which police officers to send to Manjaca

3 and for how long, and as the Prosecution submits, they exercise ultimate

4 disciplinary and criminal jurisdiction over these police officers.

5 Now, in the Popovic case, the accused Borovcanin was the RS MUP

6 deputy commander of a joint MUP force that included several police

7 companies that participated with the VRS in operations in Srebrenica in

8 July 1995. As a Defence, he argued that one of the police companies, the

9 Jahorina recruits, was under the command of the VRS Bratunac Brigade

10 security organ, while committing crimes in Potocari on the 12th and 13th

11 of July.

12 The Trial Chamber in this case found that even though the

13 Jahorina recruits were resubordinated to the army, Borovcanin maintained

14 effective control over these police officers. In making this finding,

15 the Trial Chamber relied on -- in part, Article 14 of the 1994 RS Law on

16 the Implementation of the Law on Internal Affairs During an Imminent

17 Threat of War or State of War. That is it L317 in our case. And that

18 law states, Article 14:

19 "Police units shall be under the direct command of a commander

20 who is a member of the Ministry of Interior. During the time they are

21 resubordinated to the Army of Republika Srpska, they shall retain their

22 organisation and may not be split up or separated."

23 The Trial Chamber then found, as Ms. Butler pointed out, that

24 this law established a unity of command principle of MUP forces

25 resubordinated to the VRS. And that's at paragraph 1567.

Page 27647

1 The Prosecution submits that this 1994 law which I just quoted is

2 nearly identical to Stanisic's 15 May 1992 order establishing the police

3 war units which required that if those units were subordinated and they

4 weren't always subordinated, but if they were, the ministry units shall

5 be under the direct command of certain ministry officials. Now, to cite

6 that is 1D46.

7 Now, as Ms. Butler attempted to do, of course, if you look at

8 these cases that I've just mentioned, you will find factual distinctions.

9 That is inevitable. This case that we have before us is unique in that

10 we are charging high-level police officials for the conduct for

11 perpetrators at quite a low level. But what we do submit is that this

12 jurisprudence establishes the general legal principles that Your Honours

13 should use as a guide when you are coming -- when you are addressing

14 these, to a certain degree, novel legal issues with regard to

15 resubordination.

16 And we submit that the underlying point of this jurisprudence is

17 that the concept of resubordination or unity of command are not decisive

18 of the accused's command responsibility. What is decisive is whether the

19 accused could exercise effective control over their subordinates. This

20 is a question of fact, and, as the Prosecution has explained throughout

21 its final brief and in its closing arguments, this has been established

22 by the evidence.

23 MS. KORNER: [Microphone not activated] Your Honours, Before you

24 hear from Mr. Hannis, do you want to hear from the other side on any of

25 these matters?

Page 27648

1 JUDGE HALL: I think it would be more efficient to hear all of

2 the Prosecution's submissions and then we hear from the other side.

3 MR. HANNIS: Thank you, Your Honours, good morning.

4 I just want to talk briefly about the issues raised concerning

5 comments about Mr. Stanisic' suspect interview with the OTP in 2007.

6 This is -- this is not in the nature of a comment of the kind

7 prohibited by the Statute as held in Celebici. What this was about was

8 what Mico Stanisic said and what he left unsaid during his 2007 suspect

9 interview. And you'll recall that was an interview that was done with

10 his counsel present. You can read in the interview that he was advised

11 of all his rights and reminded of those rights each and every day of the

12 interview. He freely waived those rights and agreed that his statement

13 could be used at trial. He answered some questions but didn't answer all

14 questions. He said there were some matters he didn't want to talk about.

15 Mr. Zecevic has tried to claim that since we, the Prosecution,

16 put the interview into evidence via a bar table motion, that means we

17 vouch for the truth of its contents. That's not exactly correct,

18 Your Honour. We don't. And I dare say we never said that.

19 You can see in our bar table motion 2nd December 2010, his

20 interview was 65 ter number 2827.01 through 2827.14. It's listed in

21 Annex A to the motion which is at, I think it's the Registry's page

22 number D, as in David, 10335. And the column in the table that is

23 entitled: Relevance to case issues, we said that his interview was "the

24 interview conducted under caution with the accused, Mico Stanisic,

25 provides evidence of his position on many issues of relevance to this

Page 27649

1 trial."

2 That's all it said.

3 Had we -- and, frankly, Your Honour, had we believed that

4 everything he said in his interview was true, we would have been

5 ethically bound to dismiss the indictment because he has claimed he was

6 innocent. This is being offered to prove many other matters. And also

7 the issue about whether we decided to tender it into evidence you should

8 be aware that there's ICTR jurisprudence in a case whose name I will

9 butcher, it is Ndayambaje, N-d-a-y-a-m-b-a-j-e, et al. My apologies for

10 my pronunciation. It is ICTR 98-42-T. The 15th of May, 2006. It

11 appears to hold that if the Prosecution does not tender such a statement

12 in its case, it may be precluded from using the contents or the substance

13 of such a statement in the Defence case, and in the event that the

14 accused did not testify in a situation like that, the Prosecution

15 wouldn't be able to use it at all.

16 Now by not objecting to use of his statement at trial,

17 Mico Stanisic put his credibility at issue. And it's not unfair or

18 inappropriate for you to consider what he said and what he left unsaid or

19 refused to say at the time of that interview when you decide what weight

20 to give his interview in whole or regarding specific parts of that

21 interview.

22 I would just indicate I come from a jurisdiction where the

23 general rule is that hearsay is not admissible, as opposed to here,

24 hearsay is generally admissible. In -- in the system in the US, an

25 out-of-court statement of a witness is hearsay and generally not

Page 27650

1 admissible, but there's an exception for admissions by a party opponent

2 in a civil case or a criminal case. They are defined as being not

3 hearsay, and the theory is that if a party admits something that's

4 contrary to his interest, his pecuniary interest or his penal interest,

5 it is more reliable than self-serving statements.

6 We believe that in this situation it is entirely appropriate for

7 you to consider claims made by Mico Stanisic in his interview which

8 neither panned out in determine what weight to give his words. Contrary

9 to what Mr. Zecevic has tried to assert, that is, that everything he said

10 in 2007 was true and turned out to match precisely the evidence presented

11 at trial, that's simply not so. We gave you one example earlier in

12 closing, his claim that between April and September 1992, before the

13 autonomous regions were -- were banned in September, he said:

14 "No CSB or SJB chief ever cited or relied on one of his or his

15 assistant minister's orders."

16 That is absolutely not true. We showed you three specific

17 examples and there are many more.

18 Finally, he didn't have to speak at all. He had an absolute

19 right not to speak to the Prosecution but when he voluntarily and

20 knowingly waived that right and proceeded to selectively answer some

21 questions but not others, he cannot preclude the Prosecution from arguing

22 or you Judges from considering that selectivity in 2007 in deciding what

23 weight to give that total evidence.

24 That's our submission. Thank you for hearing me.

25 [Technical difficulty]

Page 27651

1 MS. KORNER: Can I turn to a few matters that arise from both

2 accused final brief. They are relatively minor and can be dealt with

3 very quickly.

4 If I stand in the middle, then hopefully one will pick them up.

5 Would Your Honours give me one moment.

6 Your Honours, the first few matters arise from the Stanisic final

7 briefs.

8 JUDGE DELVOIE: It is still not coming through.

9 MS. KORNER: I honestly don't know what I can do about this other

10 than shouting, and I have a fairly carrying voice I'm told, in any event.

11 [Technical difficulty]

12 MS. KORNER: The interpreters need to put it on to interpret

13 because ...

14 Would it simpler if we just rose and see if we can sort this one

15 out.

16 --- Recess taken at 11.52 a.m.

17 --- Upon resuming at 12.19 p.m.

18 JUDGE HARHOFF: Are the booths able to hear you, Ms. Korner?

19 MS. KORNER: [Microphone not activated] ... going on but.

20 THE INTERPRETER: The interpreters can hear Ms. Korner.

21 MS. KORNER: Do Your Honours want me to continue even thought the

22 LiveNote's not working?

23 JUDGE HARHOFF: [Microphone not activated What about the

24 stenographer?

25 THE COURT REPORTER: [Microphone not activated] I can hear but

Page 27652

1 now the LiveNote isn't working.

2 MS. KORNER: That's what -- sorry, that was what -- oh, you

3 didn't hear that, Your Honours. I see. The message was LiveNote stopped

4 working.

5 JUDGE HALL: Let's press on, shall we.

6 MS. KORNER: Right. I assume that it will just be tapped and

7 then the [indiscernible].

8 Your Honours, can I go back to answering Judge Harhoff's question

9 and, really, I should have not required any time because I had completely

10 forgotten.

11 JUDGE HARHOFF: Well, please let me clarify, it was only because

12 you have charged the two accused with persecution that we were left with

13 this question, and rather than having to guess what the Prosecution's

14 position is, we thought we might as well use this occasion to get a view

15 on it. Thanks.

16 MS. KORNER: Your Honours, I -- can I say straight away, of

17 course, our -- our first submission on that is that all the crimes are

18 within the -- the original JCE, but in the alternative that the -- the --

19 the crimes outside those of forcible transfer and deportation come within

20 JCE 3. The leading authority and which has been followed in every case

21 that we can see is that of Brdjanin, the decision on the interlocutory

22 appeal. And, as I say, I really ought to have remembered that.

23 The Trial Chamber in Brdjanin at the Rule 98 stage had, in fact,

24 dismissed the charges of genocide, and that was -- there was an appeal on

25 the basis that that was a erroneous decision in law. And the Appeals

Page 27653

1 Chamber on the 19th of March, 2004, held as follows: They, first of all,

2 dealt with an accused who enters into a joint criminal enterprise to

3 commit the crime of forcible transfer, obviously shares the intent of the

4 direct perpetrators to commit that crime. However, if the Prosecution

5 can establish that the direct perpetrator, in fact, committed a different

6 crime and that the accused was aware that the different crime was a

7 natural and foreseeable consequence of the agreement to forcibly

8 transfer, then the accused can be convicted of that different offence.

9 And they go on to deal with genocide. And then paragraph 7, as a mode of

10 liability, the third category of joint criminal enterprise is no

11 different from other forms of criminal liability which do not require

12 proof of intent to commit a crime on the part of the accused before

13 criminal liability attaches.

14 Your Honour, that was most recently cited in the Karadzic case of

15 one of the early legal decisions. So, Your Honour, that's the situation,

16 we say.

17 JUDGE HARHOFF: And does that in the Prosecution's opinion cover

18 cases where the additional -- the additional foreseeable crime, was a

19 crime that carries a special intent?

20 MS. KORNER: Yes. This actually dealt with genocide and you

21 can't have more of a special intent than genocide.

22 JUDGE HARHOFF: I agree, just to be sure.

23 MS. KORNER: Yes.

24 JUDGE HARHOFF: Thank you very much.

25 MS. KORNER: Your Honours, thank you for that.

Page 27654

1 And while we're on that, can I -- it is rather more factual but

2 dealing with Ms. Butler's review of the sentences. The -- the sentence

3 that was passed on Mr. Brdjanin, it was originally was 35 years - she

4 didn't mention that - but reduced to 32 on appeal.

5 Your Honours, may I then turn, as I say, very quickly to some of

6 the more minor legal issue that have arisen from the final briefs of the

7 accused.

8 Your Honours, starting with Stanisic, please. At paragraph 7 of

9 their final brief -- sorry. Yes, paragraph 7. The final sentence there

10 states, they're dealing with, in particular, intercept evidence, and the

11 CHS, and end off by saying that:

12 "Evidence not proved to be authentic beyond a reasonable doubt

13 would be granted no weight at the end of a trial."

14 And they cite for this proposition, Brdjanin and Popovic.

15 Your Honours, in fact, proof beyond a reasonable doubt applies to facts

16 not evidence, and only though facts upon which a conviction or sentence

17 depends. And the case on that is the Appeals Judgement, Milosevic,

18 paragraph 20. Obviously interlocutory appeal. Proof beyond a reasonable

19 doubt applies to facts, as I said, and, for example, an element of the

20 crime or a mode of responsibility or a fact indispensable to entering a

21 conviction and, Your Honours, the cite for that is Halilovic Appeals

22 Judgement, paragraph 125.

23 Your Honours, in paragraph 10, and I think this was just an error

24 possibly. They deal with the actual burden and standard of proof. They

25 rightly deal with the fact that it has to be a reasonable doubt until the

Page 27655

1 penultimate sentence at paragraph 10 where they say:

2 "If at the conclusion of proceed there is any doubt that the

3 Prosecution has established the case against the accused, the accused is

4 entitled to the benefit of that doubt."

5 It is, of course, any reasonable doubt not fanciful or the like.

6 As I say, I think that was just a drafting error.

7 Your Honours, still on the Stanisic brief, if one looks

8 at paragraph -- just to get them in order -- slightly. Yes,

9 paragraph 211 of the Stanisic brief. There, they deal -- this is the

10 part of the brief that deals with resubordination and its consequences.

11 And at the end of that paragraph, on page 84, they say:

12 "International law governing armed conflicts recognising that

13 members of the police may be incorporated into the armed force through

14 subordination to the army and that subordinate members of the police lose

15 their status as civilian policemen and gain the status of military

16 personnel and thereby become legitimate targets."

17 And they quote one of their documents plus Lisica. But, in fact,

18 Your Honours, international law does not support this argument that the

19 accused lost effective control of the MUP units once incorporated into

20 the armed forces. The relevant provision which is not cited here is

21 Additional Protocol I, Article 43(3) and that merely notes that:

22 "If police units are incorporated into a party's armed forces,

23 notice must be given to the other parties to the international armed

24 conflict. This procedure ensures that other parties know which police

25 units can be treated as legitimate military targets."

Page 27656

1 And there's the various commentaries on this.

2 The -- adding to this, what they say is subordinate and

3 subordination, it doesn't come into Article 43 at all. Because,

4 obviously, this is a -- the question of which superior has the power, as

5 Mr. Olmsted has dealt with, and duty to act is based not on international

6 but on domestic law.

7 And Your Honours, I think, finally, on the Stanisic brief, if one

8 looks at paragraph 674. This is already one [indiscernible] one topic.

9 They state the -- the existence of de jure authority is not synonymous

10 with effective control. It does not necessarily imply de facto

11 authority, nor does it create a presumption of effective control. And

12 they cite Halilovic and Oric. Instead the inquiry should focus on the

13 de facto relationship between the alleged superior and subordinate.

14 However, Your Honours, what they don't cite and this also arises

15 from the Oric case, and also, like Mr. Hannis, I have even more

16 difficulty with Rwandan names than I do with Bosnian. It's a case called

17 N-t-a-b-a-k-u-z-e Appeals Judgement at paragraph 169. It can be -- de --

18 de jure authority can be an indicator of effective control.

19 At paragraph 681, they distinguish between a non-military

20 superior and a military superior and they quote the Rome Statute.

21 Your Honours, in our submission, there are is no separate mens rea for

22 civilian superiors. The same mens rea requirement applies to both

23 civilian and military superiors. The cases on that point are Djordjevic,

24 Milutinovic, another Rwandan case - both of them Trial Judgements, I

25 should add, obviously - this one is an Appeals Judgement

Page 27657

1 B-a-g-i-l-i-s-h-e-m-a, Appeals Judgement, paragraph 35. And we submit

2 that, although the Rome Statute gives different mens rea, that is not

3 reflective of customary international law.

4 Your Honours, those are the matters that we would deal with in

5 the Stanisic brief.

6 In respect of the Zupljanin brief.

7 Your Honours, the first is paragraph 24. At the end, they're

8 dealing with planning as a mode of liability. At the end of that

9 paragraph, they say:

10 "The defendant must be proven to have possessed the state of mind

11 required by the underlying offence with which he is charged and to have

12 directly or indirectly intended that the crime in question be committed."

13 Your Honours, we say that the mens rea for planning is -- is a

14 direct intent to plan a crime, or an awareness of the substantial

15 likelihood that a crime will be committed in the execution of the acts or

16 omissions planned.

17 Again, it's the Milosevic Appeal Judgement, paragraph 268; and

18 Kordic Appeals Judgement, paragraphs 29 and 31, which are not cited in

19 the cites to that sentence in the brief.

20 Next, Your Honours, the question of evidence outside the

21 indictment period, at paragraphs 55 and 60, I think it is. Yes.

22 Your Honours, they assert that it is impermissible - in

23 paragraph 55 - for the Trial Chamber to give consideration to any events

24 subsequent to the indictment period in determining his responsibility for

25 acts taking place between the 1st of April and the 31st of December.

Page 27658

1 Your Honours, we say that is -- that is really incorrect.

2 Your Honours, Your Honours are entitled to look at evidence outside the

3 indictment period. He cannot be held liable for any actions that he took

4 in 1991 or 1993, but we say - and we say that's what the law says - that

5 it can be evidence in support of other evidence which shows his actions

6 in 1992 were criminal, and it goes further than just the mens rea itself.

7 And, Your Honours, we set it out in paragraphs 714 to 717 of our

8 brief because we say his actions in 1991, for example, are directly

9 referable to his participation in the common plan.

10 Just let me check. I think there was one more paragraph in

11 respect of ...

12 Oh, yes, sorry, Your Honours. I should -- I -- if we go back to

13 paragraph 21. It started with that. In fact, this is very much along

14 the lines of a question Judge Harhoff asked us.

15 The Defence submit that in respect of JCE 3, he wasn't aware,

16 et cetera, but that these were a natural and foreseeable consequence of

17 the alleged JCE. Such crimes, it is said, are of a wholly different

18 nature to acts of forcible transfer or deportation. They were either

19 completely outside the JCE with which is he charged or formed part of an

20 expanded JCE to commit acts of revenge.

21 Your Honours, obviously what amounts to the JCE 3 crimes in a

22 particular case is a factual question, but the crimes that we have

23 charged of persecution, extermination, murder, torture, cruel treatment

24 have already been found to be the natural and foreseeable consequences in

25 many cases in -- before these Tribunals of one where the actual intention