Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                           Tuesday, 30 October 2012

 2                           [Appeals Hearing]

 3                           [Open session]

 4                           [The appellant entered court]

 5                           --- Upon commencing at 9.00 a.m.

 6             JUDGE MERON:  Please be seated.  Good morning, everybody.

 7     Registrar, could you please call the case.

 8             THE REGISTRAR:  Good morning, Your Honours.  This is case number

 9     IT-04-81-A, the Prosecutor versus Momcilo Perisic.  Thank you,

10     Your Honours.

11             JUDGE MERON:  Thanks.  Mr. Perisic, can you follow the

12     proceedings, please, in a language you understand?

13             THE APPELLANT: [Interpretation] Yes, I can.

14             JUDGE MERON:  Thank you.  I will now ask for appearances of the

15     parties.  First counsel for Mr. Perisic.

16             MR. LUKIC: [Interpretation] Good morning, Your Honours.  Good

17     morning to everyone participating in the proceedings.  General Perisic

18     will be represented today by myself, Novak Lukic as the lead counsel;

19     Mr. Gregor Guy-Smith; and our consultant, Mr. Stephane Bourgon; our

20     assistant, Boris Zorko; Tina Drolec; and Marlene Yahya Haage, our intern.

21             JUDGE MERON:  Thank you, Mr. Lukic.  For the Prosecutor.

22             MS. BRADY:  Good morning, Your Honours.  Helen Brady appearing on

23     behalf of the Prosecution and with me today are Barbara Goy,

24     Elena Martin Salgado, Bronagh McKenna, and our Case Manager,

25     Colin Nawrot.

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 1             JUDGE MERON:  Thank you, Ms. Brady.

 2             Mr. Perisic, appeals from the trial judgement rendered in this

 3     case on 6th September 2011 by Trial Chamber I, according to the

 4     Scheduling Order issued on 24 September 2012, the Appeals Chamber will

 5     presently hear the appeal in this case.  Before we begin, I note that

 6     Mr. Perisic on 29 October 2012, filed a motion on behalf of

 7     Momcilo Perisic seeking permission for a legal consultant to appear

 8     before the Appeals Chamber during the 30 of October, 2012, appeal oral

 9     hearing, requesting that Mr. Stephane Bourgon be allowed to make oral

10     submissions on his behalf during the appeal hearing.

11             After considering the motion and accompanying annexes, the

12     Appeals Chamber grants this motion.

13             I will first briefly summarise the appeal and the manner in which

14     we will proceed today.

15             The case concerns the responsibility of Mr. Perisic for crimes

16     committed by the Army of the Republika Srpska or VRS in Sarajevo and

17     Srebrenica between August 1993 and November 1995, and crimes committed by

18     soldiers serving in the Serbian Army of the Krajina SVK in Zagreb in

19     May 1995.  During this period, Mr. Perisic was the chief of the

20     Army of Yugoslavia or VJ General Staff which made him the most senior

21     officer of the VJ.

22             In connection with crimes in Sarajevo and Srebrenica, the

23     majority, Judge Moloto dissenting, convicted Mr. Perisic of aiding and

24     abetting murder, inhumane acts, injuring and wounding civilians,

25     inflicting serious injuries, wounding, forcible transfer and persecutions

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 1     on political, racial or religious grounds as crimes against humanity and

 2     of murder and attacks on civilians as violation of the laws or customs of

 3     war.

 4             In connection with crimes committed in Zagreb, the majority,

 5     Judge Moloto dissenting, convicted Mr. Perisic as a superior for failure

 6     to punish his subordinates for murder and inhumane acts, injuring and

 7     wounding civilians, as crimes against humanity and for murder and attacks

 8     on civilians as violation of the laws or customs of war.

 9             The majority, Judge Moloto dissenting, sentenced Mr. Perisic to a

10     single sentence of 27 years' of imprisonment.

11             Mr. Perisic advances 17 grounds of appeal challenging his

12     conviction and his sentence and requests the Appeals Chamber reverse his

13     convictions in their entirety or in the alternative, order a retrial in

14     relation to specify counts or reduce his sentence.  In ground 1,

15     Mr. Perisic challenges the majority's conclusion that his assistance to

16     the VRS amounted to aiding and abetting the crimes committed by members

17     of the VRS.  In ground 4, Mr. Perisic challenges the majority's

18     conclusion that the overall strategic objectives of the VRS were

19     criminal.  In grounds 2, 3, 5 and 6, Mr. Perisic challenges the

20     majority's findings with respect to the actus reus of his conviction

21     pursuant to aiding and abetting.  In ground 7 through 12, he challenges

22     the majority's findings with respect to the mens rea of aiding and

23     abetting liability.  In ground 13, Mr. Perisic challenges the majority's

24     finding that he had superior responsibility for the perpetrators of

25     crimes committed in Zagreb.  Finally in ground 14 through 17, Mr. Perisic

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 1     challenges the majority's findings with respect to his sentence.

 2             The Prosecution responds that all grounds of Mr. Perisic's appeal

 3     should be dismissed.  The Prosecution responds that all grounds of

 4     Mr. Perisic's appeal should be dismissed.

 5             I am drawing the attention of the parties to the questions or

 6     matters that the Appeals Chamber invited the parties in the addendum to

 7     the Scheduling Order to discuss.

 8             Throughout the hearing, counsel may argue the grounds of appeal

 9     in any order they consider suitable for their presentation.  However, I

10     would urge counsel not to repeat verbatim or to summarise extensively the

11     arguments presented in their briefs.  The Appeals Chamber is familiar

12     with these arguments.  Furthermore, the parties are obliged to provide

13     precise references to materials supporting their oral arguments.

14             Finally, I reiterate that the appeal process is not a trial

15     de novo and the parties must refrain from repeating their case as

16     presented at trial.  Arguments must be limited to alleged errors of law

17     which invalidate the trial judgement or alleged errors of fact which

18     occasion a miscarriage of justice.  As set out in the Scheduling Order

19     this hearing will proceed as follows:  First, we will hear submissions

20     from counsel for Mr. Perisic for one hour.  After a pause of 20 minutes,

21     the Prosecution will respond for one hour.  Following another pause of 20

22     minutes, counsel for Mr. Perisic will have 30 minutes to reply.  Finally,

23     Mr. Perisic will have ten minutes for an optional personal address.

24             Parties will present their submissions in the precise, clear, and

25     concise manner.  The Judges, of course, may interrupt the parties at any


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 1     time to ask questions or they may ask questions following each party's

 2     submissions or at the end of the hearing.

 3             Having now stated the manner in which we will proceed, I would

 4     like to invite counsel for Mr. Perisic to present his appeal.  Counsel

 5     for Mr. Perisic, please.

 6             MR. LUKIC: [Interpretation] Thank you, Mr. President.

 7             Your Honours, General Perisic has been convicted for aiding and

 8     abetting crimes committed by the Army of Republika Srpska in Sarajevo and

 9     Srebrenica as well as for his omission to punish the perpetrators of the

10     crimes of the shelling of Zagreb.

11             At the beginning I would like to underline the dissenting opinion

12     of the Presiding Judge of the Trial Chamber who proposed that

13     General Perisic be acquitted on all counts of indictment.  This opinion

14     should not be disregarded.

15             JUDGE MERON:  Just wait a second.  There is a problem with --

16     please proceed.  Thank you.  Please proceed, Mr. Lukic.

17             MR. LUKIC:  Thank you, Your Honour.

18             [Interpretation] On the other hand, the majority has made

19     numerous legal and factual errors that we ask the Appeals Chamber to

20     redress with the only right outcome of these proceedings:  Acquitting

21     General Perisic on all counts of the indictment.  We stand by all our

22     arguments presented in our 17 grounds of appeal, and today we will mainly

23     focus on the issues and questions posed by the Appeals Chamber.  However,

24     before that, we want to underline a number of key issues that we believe

25     must be comprehensively and carefully considered in deciding on this

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 1     appeal.  Moreover, Your Honour, one number of these questions go beyond

 2     the framework of these appeals proceedings and reflect on some of the key

 3     concepts of the jurisprudence of this Tribunal, its credibility, and its

 4     historic place, its legacy.

 5             The first of these issues and one of the most important ones is

 6     the overly broad and inadmissible interpretation of aiding and abetting

 7     as a form of criminal liability by the majority of the Trial Chamber.

 8     The basic elements of liability on the basis of aiding and abetting have

 9     been developed through the practice of this Tribunal as a rampart against

10     imposing stands of strict responsibility and support to the fundamental

11     principle of the need to establish individual responsibility.  The

12     majority has violated this principle and evidently committed an error,

13     believing that it was not necessary to prove the existence of specific

14     direction in the Perisic case.

15             We assert that for establishing liability, the assistance

16     extended by the aider and abettor must be specifically directed to the

17     commission of crimes.

18             Regarding the requirement that the assistance extended must have

19     substantial contribution to the commission of crimes, this must be proven

20     as the only possible conclusion and not be replaced by generalised

21     findings and assumptions as was done by the majority.  The majority

22     committed an error when establishing that actus reus has been proven in

23     this case based on the dependence of the VRS from the VJ assistance for

24     its functioning as an army.  This leads to automatic criminalisation of

25     assistance for the purpose of waging war.  This is precisely what the

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 1     majority did, and its findings must be reversed.

 2             This is not a case that deals with joint criminal enterprise.

 3     The majority has confused liability under the joint criminal enterprise

 4     with liability for aiding and abetting.

 5             With regard to mens rea in aiding and abetting, unlike the joint

 6     criminal enterprise it is necessary to prove that the aider and abettor

 7     was aware that his acts assist the commission of crimes quoted in the

 8     indictment.  Here again, the majority again committed a mistake, an

 9     error, failing to consider even the issue whether Mr. Perisic knew that

10     the assistance extended by the VJ aided the commission of crimes by the

11     VRS in Sarajevo and Srebrenica.

12             A very important issue is reconsidering the effective control,

13     effective control inquiry by the majority.  The appellant claims in

14     accordance with the dissenting opinion of Judge Moloto that personal and

15     mutual admission of the existence of the relationship

16     subordinate-superior must be proven.  That is a test of effective

17     control.  The relationship between superior and subordinate cannot exist

18     if the superior and the subordinate do not share the conviction and do

19     not act as if they are in such a relationship.

20             And finally, Your Honours, if the Appeals Chamber finally

21     establishes the responsibility of General Perisic regarding the crimes

22     for which he was accused, then of key importance is that the Chamber

23     should reconsider the multiple errors committed by the majority in

24     concluding on the obviously unreasonable sentence.

25             Now I will give the floor to Mr. Guy-Smith, who will present our

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 1     responses to your questions numbers 1 through 4, after which Mr. Bourgon

 2     will take the floor, taking issue number 5, and then I will present

 3     additional arguments considering the errors committed by the majority on

 4     sentencing.  Thank you.

 5             JUDGE MERON:  Thank you, Mr. Lukic.

 6             Mr. Guy-Smith, please.

 7             MR. GUY-SMITH:  Good morning, Mr. President.  Good morning,

 8     Your Honours.  I first of all note that we have apparently new equipment

 9     for purposes of listening and talking to each other, and it says vote

10     now, and I suggest to you at the very beginning you can vote now for the

11     Defence.

12             You've asked a number of questions and what I'm going to do is

13     I'm going to respond directly to the questions that you've asked in the

14     order that they have been asked, the first being how the Appeals Chamber

15     should address the issue of specific direction in the context of aiding

16     and abetting liability.

17             The Trial Chamber majority engaged in demonstrable legal error in

18     removing the requirement of specific direction in its determination of

19     General Perisic's liability under an aiding and abetting analysis.  The

20     prejudice is clear.  Had the correct standard been applied he would have

21     been acquitted because there was no proof of specific direction.

22             Specific direction is an integral, important component in the

23     analysis of aiding and abetting.  Its excision is a dangerous and radical

24     departure that threatens the basic concept of individual responsibility.

25     The precedent in its absence establishes -- is unsettling and far

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 1     reaching.  You should refine the language of previous decisions to

 2     clarify the long-standing and oft repeated principle of law that the

 3     actus reus for aiding and abetting requires proving two prongs:  First,

 4     specific direction to assist and, second, substantial effect on the

 5     commission of crimes.  I digress for a very brief moment, because

 6     throughout the opinions that have been written in -- in this Tribunal and

 7     throughout the opinions that have been written at the ICTR, in each and

 8     every one of the opinions that I'll be mentioning the language is

 9     specific direction and substantial effect.  That's conjunctive pleading,

10     as I would say.  It isn't "or," it's "and."  So both of these components

11     must be met and it's throughout your decision on law.

12             The jurisprudence articulating the specific direction which you

13     sometimes framed as specific assistance directed or specifically aimed is

14     one of two prongs necessary in determining whether aiding and abetting

15     has been proved beyond a reasonable out with regard to the actus reus

16     elements has remained relatively consistent since Tadic; Delalic,

17     paragraph 344; Kupreskic, paragraph 248; Blaskic, 45; Simic, 85;

18     Blagojevic, 222; Oric, paragraph 43.

19             There is, of course, an exception.  That's -- the exception with

20     the majority in our case relied on and that's Mrksic.  But Mrksic rose in

21     a completely different context concerning the issue of actus reus.  In

22     Mrksic it was raised regarding the mens rea for aiding and abetting by

23     omission, which is not our case.  It has nothing to do with our case.

24     But even the Mrksic Chamber acknowledged the important of the requirement

25     of the direction stating that:

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 1             "The fact that an omission must be," and I emphasise "directed to

 2     assist, encourage, or lend moral support to the perpetration of a crime

 3     forms part of the actus reus, not the mens rea of aiding and abetting,

 4     but the language of directed once again is there."

 5             That's paragraph 159, quoting Oric, paragraph 43.

 6             So even the Mrksic Chamber included requirement of direction.

 7     Therefore, based on that law, the fact that the aid was specifically

 8     directed towards a crime committed must be proved beyond reasonable doubt

 9     whether or not it is considered stricto senso to be an essential element.

10     We do, of course, maintain that it is.

11             However, even if specific direction was not considered to be an

12     essential element in and of itself, it is implied in the analysis.

13     Therefore, specific direction still must be proved beyond a reasonable

14     doubt before any finding that an individual aided and abetted a crime or

15     crimes can occur.

16             The Trial Chamber's majority reliance on Mrksic in paragraph 126

17     we maintain is a departure from the applicable law.  It is incorrect.  It

18     constitutes legal error.

19             The jurisprudence of the ICTR also continues to supply a

20     specificity standard in its analysis for determining whether the

21     actus reus of aiding and abetting has been proven or not, and I apologise

22     to those who speak the language better than I do for my mispronunciation

23     of some of these cases.  See Ntawukulilyayo, paragraph 214, a case that

24     was decided after Mrksic.  Kalimanzira, a case decided after Mrksic.

25     Rukundo a case decided after Mrksic.  The paragraphs for the previous are

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 1     74 for Kalimanzira, 54 for Rukundo.  Also see Seromba at paragraph 44.

 2     Nahimana, at paragraph 214.  I'm sorry.  Nahimana, paragraph 42,

 3     Ntagerura which I believe is paragraph 74.  I will have to double-check

 4     that.  And Ntakirutimana, which is at paragraphs 530 and 532.  In each

 5     and every one of those cases you have used the language specifically

 6     directed or one of the other forms of that that I have mentioned

 7     previously and substantial effect.  So specific direction remains again

 8     and again and again.

 9             The wordings of Article 6.1 of the ICTR statute and 7.1 of our

10     statute are identical.  And I think if you review the cases just

11     mentioned you'll see the composition of the appeals bench is similarly

12     so.  So there is really no logical reason why the Appeals Chamber would

13     continue to include specific direction or aim in the definition of the

14     actus reus in aiding and abetting after Mrksic if in fact it's not a

15     requirement.  Obviously it is.

16             A proper construction of the statute taking due account of its

17     purpose requires the conclusion that in the interests of certainty and

18     predictability the Appeals Chamber should follow its previous decisions

19     taken on the jurisprudential path articulated since Tadic clarifying in

20     the instant case and henceforth that specific direction must be proven.

21     And I take solace in the teachings of this Chamber from Aleksovski.  I

22     paraphrase paragraph 107.

23             There are a number of consequences here departing from this well

24     recognised test in failing to articulate that specific direction is an

25     integral and indeed a component part of aiding and abetting liability.

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 1     First, there is no direct link between the assistance given and the crime

 2     committed.  There's a question that exists in all trials.  What is a

 3     specific direction in practical terms?  And what must the trier of fact

 4     look for to determine whether it has or has not been proved?  In this

 5     regard, we refer you to the dissenting opinion of Judge Moloto who has

 6     defined specific direction as the existence of a direct link between a

 7     practical assistance provided, the aid and the --

 8             THE INTERPRETER:  Kindly slow down for the interpreters, please.

 9             MR. GUY-SMITH:  I just realised that.  I do apologise.  That's at

10     paragraph 10.

11             Absent such a direct link it cannot be said that the aid was

12     specifically directed towards the commission of the crime.  The existence

13     of a direct link between the aid given and the crime committed is not the

14     same as proof of a cause-effect relationship between the conduct of the

15     aider abettor and the commission of the crime.  That's the condition

16     sine qua non which is a more stringent requirement which has been

17     rejected in the jurisprudence of the Tribunal.  Specific direction

18     however is something different.  It requires a direct link between the

19     practical assistance provided and the crime committed.  In the sense of

20     the practical assistance provided in and of itself directly assisted the

21     crime.

22             Second, under the majority's holding, a finding of guilt can be

23     imposed whether the assistance given is temporally or geographically

24     remote to the crime committed irrespective of any intervening causes.  In

25     cases where practical assistance was provided to the principal

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 1     perpetrator from a remote location or a much earlier time, it is all the

 2     more important to prove that the practical assistance was specifically

 3     directed to the commission of the crime.  In this we fully agree with

 4     Judge Moloto's dissenting opinion in paragraph 10.  But furthermore the

 5     Kupreskic case is instructive in this regard.  There you found that

 6     Kupreskic acts of unloading weapons from his car was not sufficient for

 7     finding that his acts were acts specifically directed towards the --

 8     assisting the crime of persecution.  You took into account the passage of

 9     time between the act and the criminal activity, explaining the six month

10     length of time between when Kupreskic was observed unloading the weapons

11     and when the attack on Ahmici actually occurred diminishes the likelihood

12     that the weapons were intended to be used for attacking the Muslim

13     population.  Paragraph 277.

14             Similarly, Kalimanzira's conviction for aiding and abetting

15     genocide was quashed because of the lack of any proven immediate

16     connection between his speech and specific killings.  That's at

17     paragraph 923.

18             We contend that these cases establish that specific direction

19     must be considered an explicit component because otherwise there's a

20     missing link between the accused's acts and the crime.

21             And third, if the actus reus of aiding and abetting is reduced

22     solely to a consideration of substantial effect on the commission of the

23     crime, a mere knowledge standard is wholly inadequate to impose

24     individual assessorial liability.  Whether or not you accept our argument

25     in ground 7 that purpose is and has been customary international law

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 1     standard for the mens rea prong of the test, without inclusion of

 2     specific direction as part of the actus reus analysis in the law of

 3     aiding and abetting in real terms what occurs is that this law runs

 4     dangerously close to diluting the minimal standards necessary for the

 5     requirement of individual culpability.  Without specific direction, mere

 6     knowledge of a crime and any assistance which had a substantial effect on

 7     the commission of a crime would result in a conviction even if that

 8     assistance was not meant to assist any crime.  Such a standard fails to

 9     establish a minimal threshold of behaviour for liability.  Part is

10     rendering assistance will not know what behaviour is legally appropriate

11     and what is legally prohibited.

12             Objectively speaking, the practical effect can be demonstrated by

13     some examples from the events of the past 12 months.  The arming and

14     training of the Sudanese in the DRC military police and security

15     personnel while embargoes were in place, or give rise to aiding and

16     abetting liability for British officials.  I need not remind you of the

17     situation in Darfur and the indictment against Omar Bashir.

18     United Kingdom officials have known of the knowledge of crimes have been

19     committed --

20             THE INTERPRETER:  Kindly slow down, please.

21             MR. GUY-SMITH:  And have been rendering assistance for the past

22     five years there.  In rending vital and critical assistance to the Libyan

23     rebels to overthrow the previous regime with knowledge of by crimes being

24     committed by the selfsame rebel forces, leaders in France, the

25     United States, United Kingdom, and NATO, to name but a few, would be

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 1     liable for aiding and abetting any or all of their crimes.  Inasmuch as

 2     British Secretary Hague may wish to cast the assistance as humanitarian

 3     given to the forces in Syria the training and communication assistance

 4     given to the opposition forces with full knowledge of those crimes being

 5     commit by rebel forces there subjects those giving assistance to aiding

 6     and abetting liability.

 7             In effect, if the majority's holding is upheld in this case, the

 8     result is clear.  Any and all officials, political or military, with mere

 9     knowledge that crimes were being committed who facilitate assistance to

10     foreign armies, state or non-state, during a conflict will be liable for

11     aiding and abetting any crimes committed by those they assist.

12             We do not believe the jurisprudence of this institution would

13     lend any support even if inadvertent to such an absurd state of affairs.

14     Specifically direction insulates against this.  It makes clear that the

15     assistance must be directly linked to committing the crime consistent

16     with the requirement of individual liability.  The majority's finding in

17     this case is specific direction was not required was clearly erroneous

18     and clearly prejudicial.

19             Turning to your second question:  Whether aid that is not

20     specifically directed toward a particular crime can have a substantial

21     effect required to enter a conviction for aiding and abetting.

22             Following the discussion regarding specific direction the answer

23     to this question is very simply no.  In the absence of specific direction

24     substantial effect alone, no matter how substantial the effect of

25     practical assistance turns out to be, is insufficient to enter a

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 1     conviction for aiding and abetting.  To find otherwise effectively

 2     eviscerates the requirement of individual criminal responsibility and

 3     this case highlights why.  To paraphrase --

 4             JUDGE MERON:  May I ask you a question on this prong of

 5     substantial effect.  Given the massive nature of the aid provided by the

 6     VRS, what kind of aid would you yourself consider sufficiently

 7     substantial to meet the threshold required for conviction for aiding and

 8     abetting?

 9             MR. GUY-SMITH:  I don't know if I can answer that question in the

10     abstract and I'll tell you why, Your Honour.  The difficulty with that is

11     that during a time of conflict, the amount of -- of supplies or logistic

12     assistance that was given or is given in any conflict situation I don't

13     believe is necessarily quantified, and I haven't been able to find anyone

14     who can tell me how it would be quantified with regard to the issue of

15     used for legitimate military purposes.  So when you ask the question of

16     how much would be sufficient in the context of a -- in the context of a

17     war that's being waged it's virtually impossible to put a figure on that.

18     I will be attending to the issue of substantial effect because I believe

19     that's directly related to the fourth question you've asked and I think I

20     may be able to pick up some more of it there.  I'm appreciative of your

21     question though.

22             JUDGE MERON:  What I'm curious about is if you look at sort of a

23     spectrum of various kinds of aid, is there a point somewhere on that

24     spectrum where the magnitude of the aid reaches such proportions that

25     it's sort of obvious that aid must by its very nature have substantial

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 1     effect on the commission of the crimes.

 2             MR. GUY-SMITH:  I don't think you can make that analysis and I --

 3     once again I understand what your question is.  I think in some senses

 4     you're really asking, kind of, what I would call the question of how long

 5     does a fire maintain itself, and is there a point in time when a fire

 6     will burn itself out, and the answer to that question is obviously as

 7     long as there's fuel for the fire, the fire will continue to burn, but in

 8     the history of human behaviour, in our entire history we have never

 9     seemed to be in a situation where it's the lack of some kind of

10     assistance that has the fire burn out.  It seems to occur for entirely

11     different reasons.

12             JUDGE MERON:  Thank you.  Thank you, Mr. Guy-Smith.

13             MR. GUY-SMITH:  Sure.

14             One cannot simply ignore the reality that relations between

15     states are often reinforced by the provision of significant military aid.

16     Many foreign armies are dependent to various degrees upon such assistance

17     to function.  In this context, in many conflict zones around the world,

18     the provision of military aim, aid is aimed at supporting mutual

19     interests such as the terms of war, the promotion of regional and global

20     peace, stability, prosperity, and other objectives.  That's paragraph 32

21     of Judge Moloto's dissent.

22             If effect if the effect of the aid given becomes a sole litmus

23     test for conviction pursuant to the law of aiding and abetting which I

24     think goes somewhat to the question you've asked, Your Honour, then all

25     military and political leaders who support the provision of logistical

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 1     assistance to a foreign army dependent on such assistance irrespective of

 2     a quantitative amount will be liable for aiding and abetting should any

 3     war crimes or crimes against humanity occur.  Unfortunately, as they

 4     inevitably do in all wars, unfortunately.

 5             Turning to your third question whether the aid facilitated by

 6     Mr. Perisic met the requirements of specific direction, if any, in the

 7     context of aiding and abetting liability.

 8             The aid facilitated by Perisic did not meet the requirements of

 9     specific direction, if any, and the majority erred in so finding.  No

10     evidence was presented that any of the assistance given was specifically

11     directed at providing practical assistance to the perpetration of crimes

12     in Sarajevo or Srebrenica, and your reasoning in Kupreskic which was

13     discussed in relation to question number 1 demonstrates that not any act

14     of assistance constitutes aiding and abetting.  Only acts that are

15     specifically directed towards assisting a crime is sufficient.  The

16     evidence establishes that the assistance given was in the context of

17     supporting the war effort and the judgement is replete with paragraphs

18     referring to that, such as paragraphs 107, 109, 1234, that he oversaw

19     a -- assist in providing comprehensive military assistance, 1235, 1236,

20     1237, 1365 attempt to accept -- attempt to have people accept peace,

21     1366, 1369, attempt to persuade Mladic to accept peace which is important

22     in the context of a war, because these are the activities that are being

23     engaged in.  1406, 1407, 1408, 1411 and -12 when there are meetings with

24     prominent members of the RSK and RS.  Again for the purpose we would

25     contend, if not at least for peace.  1414, 1597, 1598.  1599 which I

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 1     think goes to some of what you were referring to again, Your Honour, in

 2     terms of specific -- and I'm analysing this under the rubric of specific

 3     direction -- could not have waged war if the assistance had been

 4     withheld, could not have survived or defended its territory.  That's what

 5     it was directed towards.  That's why the assistance existed.  And that's

 6     what the majority found repeatedly throughout this judgement.

 7             1602, the VJ depended heavily on FRY and VJ assistance -- the VRS

 8     depended heavily on FRY and VJ assistance in order to function as an army

 9     and wage war.  All of this established that the aid facilitated to

10     support the war effort not the specific direction for a crime.

11             With the above in mind examination of the aid facilitated by

12     Perisic fails to meet the specific direction prong of the test for

13     finding aiding and abetting liability.  Looking at first of all

14     personnel.  The evidence was that all but three of the VJ corps members

15     were sent to the VRS before General Perisic became Chief of Staff.  There

16     was no proof that those three members were involved in the commission of

17     crimes in Sarajevo and Srebrenica.  It certainly cannot be said that

18     personnel based on that was the -- that the use of the provision of

19     personnel based on those facts was proof beyond a reasonable doubt that

20     the assistance provided by Perisic was specifically directed to the

21     commission of crimes in these locations.  Financial assistance and

22     benefits, there was no link proved between this sort of practical

23     assistance.  That the payment of the salaries were great help to the VRS,

24     at paragraph 167, or that the VRS was able to carry out their combat

25     duties once again a function of war without impediment, paragraph 1618,

Page 29

 1     does not meet the test.  Indeed the majority conceded during the

 2     suspension of salaries, none of the VRS members left the VRS because the

 3     VRS military command would not let them.

 4             Finally when taking a look at the instrumentality of war, the

 5     actual tools that were used to commit the crimes, well, here the record

 6     is crystal clear.  The Prosecution failed to prove a direct link for any

 7     of the crimes committed, the majority specifically acknowledges failure

 8     of proof, stating:

 9             "The majority recognises that the evidence does not establish

10     that the specific weapons used in committing the charged crimes stem from

11     the logistical assistance process overseen by Perisic."

12             Can't get much clearer than that, and the Prosecution did not

13     challenge this finding.  And it's clear from the holding that the aid

14     facilitated by Perisic did not constitute specific direction.  Why you

15     may ask?  And the answer once again is clear.  The majority immediately

16     after recognising this failure of proof rejected that specific direction

17     prong long-held sacred at this institution stating:

18             "However, the majority recalls that the acts of the aider and

19     abettor need not have been 'specifically directed' to assist the crimes."

20     Paragraph 1624.

21             Without this linkage, Perisic cannot be held liable for aiding

22     and abetting.  The specific direction test was clearly not met, and the

23     majority certainly erred.

24             There's also another matter that needs to be dealt with which is

25     while a possibility exists that ammunition coming from the VJ was used

Page 30

 1     during the commission of the crimes in Sarajevo, this is certainly not

 2     the only reasonable inference that can be drawn from the evidence

 3     presented.  As such, the principle of in dubio pro reo requires reversal

 4     since the majority failed to establish that was the only inference to be

 5     drawn.  And very briefly, if you take a look at the examination of the

 6     discussion of the Srebrenica or Selsky bullets, they were specifically

 7     found.  The only bullets found at Srebrenica were found not to be

 8     attributed to the logistical assistance provided by Perisic specifically

 9     found beyond a reasonable -- beyond any doubt that it was impossible to

10     attribute those bullets to Perisic.

11             JUDGE MERON:  Could you give a reference to that statement?

12             MR. GUY-SMITH:  That would be found in paragraphs 125 -- 1295 to

13     1302.

14             In conclusion, none of the practical assistance coming from the

15     VJ can be considered to be specifically directed to the commission of

16     crimes so as to support a finding beyond a reasonable doubt that

17     General Perisic aided and abetted those crimes.  The majority entirely

18     avoided this analysis in this first instance in finding Perisic guilty.

19     Had the law been properly applied a finding of the actus reus was not

20     proven beyond a reasonable doubt would have been entered counts 1 through

21     4, the aiding and abetting counts, must be reversed.  Clearly if you find

22     the specific direction prong has not been met there's no need to examine

23     substantial effect issue, and I submit to you under the relevant

24     jurisprudence that findings should be made.  But you've asked that

25     further question.

Page 31

 1             The unqualified answer is yes to your last question.  The

 2     Trial Chamber did err in finding the assistance facilitated as

 3     substantial effect.  The entire analysis concerning substantial effect is

 4     predicated upon the majority's unreasonable reliance on dependence and

 5     whether it's true or not as somehow being the same as -- when I say by

 6     whether it's true or not I'm referring to the dependence, whether or not

 7     the dependence is true or not, it's not the same as being a substantial

 8     effect of commission of crimes.  The question is not whether the VRS

 9     substantially depended upon the VJ support to function as an army but

10     rather whether the support of Perisic had a substantial effect on the

11     perpetration of crimes.  The dependence of an army as a whole on a

12     foreign army as a whole alone does not automatically lead to the only

13     reasonable conclusion that such assistance provided that dependent army

14     and distributed by that army to its subordinate units, and for an example

15     of that you have the finding in paragraph 1237 that the VRS Koran depot

16     received most of its ammunition from the VJ and it was then distributed

17     out.  So the legitimate -- legitimate military delivery of ammunition

18     cannot be attributed to him in terms of what happened to it subsequently

19     because there's no direct link.

20             In Kalimanzira decided a year and a half after Mrksic, this

21     Chamber found that genocidal exhortations in a newspaper prior to the

22     commencement of genocide in Rwanda did not fulfil the actus reus of

23     aiding and abetting even though there was probably a link between the

24     accused's actions and the killings.  You found:

25             "There was not enough evidence for a reason trier of fact to find

Page 32

 1     beyond a reasonable doubt that the congruent publications in the first

 2     months of 1994 substantially contributed to the commission of acts of

 3     genocide between April and July of 1994."

 4             JUDGE MERON:  Why wasn't the distribution of arms from the Koran

 5     centre not dependent on Mr. Perisic?

 6             MR. GUY-SMITH:  I'm saying that the -- that the -- the arms

 7     being -- the ammunition being sent to the Koran centre, it does not -- it

 8     does not settle the test.  Certainly there's a dependency there but that

 9     dependency doesn't deal with the link of the crimes because the

10     dependancy there -- if -- if there be such a thing does not deal with the

11     question of substantial effect of the crimes because there are so many

12     different ways that these weapons or ammunition were being used.  So you

13     can't draw -- you can't draw a direct link of -- the absence of a direct

14     link you cannot find liability.  For -- under the substantial effect

15     analysis.

16             The VRS was entitled to fight and the material provided -- the

17     military logistics was appropriate to that purpose.  Crimes committed as

18     a byproduct of bad practices accesses poor command and control deserve

19     punishment admittedly, but declaring the VRS essentially a criminal

20     organisation as a means of affixing criminal liability on Perisic abuses

21     basic concepts of criminal law undermines international humanitarian law

22     and risks casting an inappropriate wide net of liability over state

23     practice that only served to undermine the legitimacy of international

24     criminal law.

25             Lacking direct evidence it is therefore -- this case is therefore

Page 33

 1     based on circumstantial evidence.  The law is clear in this regard.

 2     Where an inference is drawn from circumstantial evidence to establish a

 3     fact upon which a conviction relies it must be the only reasonable

 4     inference that could be drawn from the evidence presented.  That Perisic

 5     contributed to the facilitation of the commission of crimes is not the

 6     only reasonable conclusion.  An alternative reasonable explanation is the

 7     assistance provided by Perisic was direct in supporting the war effort

 8     not the commission of crimes and that such assistance did not

 9     substantially contribute to those crimes.  In addition to the fact that

10     there is no evidence presented intended for those crimes to occur the

11     conclusion of general dependence is insufficient for finding of

12     substantial effect.  Suspicion is not evidence speculation based on

13     assumptions is not evidence, and it is certainly not proof beyond a

14     reasonable doubt.  General Perisic should be acquitted on counts 1

15     through 4.  I cede the floor to Mr. Bourgon unless you have any

16     questions.

17             JUDGE MERON:  Thank you Mr. Guy-Smith.

18             Mr. Bourgon.

19             MR. BOURGON:  Good morning Mr. President.  Good morning

20     Honourable Judges of the Appeals Chamber.

21             I have the honour of addressing you this morning in relation to

22     question 5.

23             JUDGE MERON:  Wait for interpretation, please.

24             MR. BOURGON:  Our answer to this question is straightforward.

25     The Trial Chamber erred in finding that Mr. Perisic had de jure and

Page 34

 1     de facto authority to discipline and to issue command orders to

 2     40th Personnel Centre members.

 3             I will address the three prongs of the question.  The de jure

 4     authority, de factor authority to discipline, de facto authority to issue

 5     binding orders.

 6             The first topic deals with the de jure authority.  The majority's

 7     analysis on this issue at paragraphs 1657 to 1667 is circular and does

 8     not support the conclusion drawn.  The majority's analysis is wrong

 9     because it rests on two incorrect premises.

10             First, the majority took the view that the de jure relationship

11     between Mr. Perisic and members of the 40th Personnel Centre was governed

12     by the law on VJ.  That is incorrect.  I will explain why.

13             Secondly, Mr. Perisic's authority over members of the VJ after

14     they transferred to the 40th Personnel Centre, the majority took the view

15     that there was no change in General Perisic's authority, which is also

16     incorrect.

17             Here is the argument:  First of all, the creation of the

18     40th Personnel Centre was an exceptional situation and something that was

19     not governed by the law on the VJ.  From a de jure standpoint, the

20     command and control between the VJ and members of the

21     40th Personnel Centre was governed on the instructions on Personnel

22     Centres, and that is P734, not by the law on VJ.

23             More importantly, the majority itself confirm at paragraphs 1766

24     and 1767, that once VJ members transferred to the 40th Personnel Centre,

25     they entered a new chain of command.  This altered the de jure command

Page 35

 1     and control relationship.  The majority actually stated:

 2             "Once a VJ officer complied with an order transferring him to the

 3     40th, he entered the chain of command of the SVK."

 4             This actually confirms that the de jure superior from that point

 5     on was Celeketic, who was the commander of the SVK.  He was the de jure

 6     superior.

 7             More importantly, VJ members could the not be disciplined by

 8     General Perisic once they had been transferred to the

 9     40th Personnel Centre.  This is confirmed by Prosecution evidence, and

10     that is P1082.

11             Moving on to de jure authority to punish.

12             The argument is as follows:  First of all, the majority relies on

13     its finding of de jure that Perisic was de jure superior and that we have

14     seen is incorrect.

15             Secondly, as found by the majority, Mr. Perisic only used his

16     ability or his purported ability to punish after the fall of the RSK.  So

17     the conclusion is simple.  There is no proof that at the time of the

18     shelling of Zagreb, Perisic could initiate proceedings against members of

19     the 40th Personnel Centre.

20             Thirdly, the majority in order to infer nonetheless that he could

21     at the time initiate proceedings went to look at evidence of events which

22     took place after the fall of the RSK on 8 August 1995.  Now, that's

23     significant, because the fall of the RSK was a major change of

24     circumstances.  From that moment on, the SVK and its chain of command no

25     longer existed, so the members of the 40th Personnel Centre were no

Page 36

 1     longer under the command SVK commander, and then it must be recalled that

 2     the SVK commander was the de jure superior when Zagreb was shelled.

 3             What Perisic could do from both a de jure point of view and a

 4     de facto point of view before the fall of the RSK and after the fall of

 5     the RSK is entirely different.  Consequently, the majority's analysis

 6     looking at evidence after 8 August 1995 was flawed from the start.

 7             Fourthly, the majority advanced some possible reasons why

 8     Mr. Perisic would have waited until after the fall of the RSK to use his

 9     powers to initiate proceedings, but that -- the reasons put forward by

10     the majority are flawed.  Let me give you just one example.

11             They say Perisic used his authority to punish -- did not use

12     until November of 1995 because he did not need to make use of his

13     authority unless the military objectives of the VJ diverge from those of

14     the SVK.  Well, clearly, Mr. President, Mr. Milosevic and Mr. Perisic

15     disagreed whole-heartedly about the shelling of the Zagreb.  On

16     1 May 1995, Mr. Milosevic said to Mr. Perisic in a conversation:

17             "I wish to God that Celeketic would ... can't you tell him not to

18     listen to Martic anymore, please!  Martic is going to drag them into a

19     horrible war."

20             How much more can they disagree?  Hence, the shelling of the

21     Zagreb would have necessarily triggered the authority of Perisic or the

22     need for Perisic to punish people, to punish members of the 40th.

23             It follows, Mr. President, on the basis of all these arguments

24     that the majority's inference that Perisic could initiate proceedings

25     against members of the 40th at the time Zagreb was shelled is plainly not

Page 37

 1     the only reasonable inference that can be drawn on the basis of the

 2     evidence.  There's definitely another possible logical and plausible

 3     conclusion.  He did not do it because he had no authority to do it.

 4             Third topic.  Authority to issue binding orders.

 5             Once again, Mr. President, the majority here rests its analysis

 6     on the fact that de jure would have been the -- sorry, that Perisic would

 7     have been the de jure superior of members of the 40th Personnel Centre.

 8     As I've mentioned earlier, he was not.  Celeketic was the de jure

 9     superior of members of the 40th Personnel Centre.

10             Secondly, the majority's erroneous finding that Perisic had a

11     general ability to issue binding orders rests on two orders that would

12     have been issued before May 1995, which means before the event or during

13     the event, two orders, both of which do not establish in any way command

14     authority on behalf of Perisic.

15             The first of these orders, 24 March 1995, that's P1925, whether

16     it was obeyed or not - that's one of the Prosecution's argument - is

17     beside the point.  This order is clearly not one that establishes command

18     authority over the SVK.  The fact that you establish some kind of

19     committee to discuss the assistance given to the SVK does not demonstrate

20     that Mr. Perisic had command authority or could issue binding orders.

21             As for the second of these orders, that's P1800, issued on

22     7 December 1994.  Now, as was highlighted by Judge Moloto in his

23     dissenting opinion, this order can easily be distinguished from an order

24     given within a chain of command.  It was sent directly from Milosevic.

25     Celeketic responded directly to Milosevic.  Martic was not a member of

Page 38

 1     the 40th Personnel Centre, and Perisic was only instrumental --

 2     instrumental in passing this order along.  Once again, Mr. President,

 3     this order fails to demonstrate any kind of command authority on the part

 4     of Mr. Perisic over the SVK before or when Zagreb was shelled.

 5             Now, once again the majority attempted to justify the fact that

 6     there was no orders issued until much later, and one of the -- one of the

 7     reasons they advance is the fact that Mr. Perisic did not need to use his

 8     authority unless the objectives diverge with those of the SVK.  I've

 9     addressed this argument already.

10             Perisic and Mr. Milosevic both clearly disagreed with the

11     shelling of Zagreb.  Had Mr. Perisic had the authority to issue a command

12     order to Celeketic, he would have.  He didn't do so because he did not

13     have this authority.

14             Now, on this point, Mr. President, I refer the Appeals Chamber to

15     two cases before the Appeals Chamber, that of General Hadzihasanovic and

16     that of General Blaskic.  Blaskic 29 July 2004; Hadzihasanovic

17     22 April 2008.  In both cases, the Appeals Chamber found both of these

18     generals did not exercise effectively control even though they had issued

19     some orders to the alleged subordinate:  On the one hand the Mujahedin,

20     that was Hadzihasanovic; on the other hand, the 4 Military Police Platoon

21     that was General Blaskic.

22             Here you have General Perisic did not even issue any order.  Now,

23     that's significant.

24             Now, also I refer to Witness MP-80.  He stated that Mr. Perisic

25     did not assign task, did not take decisions along classical military

Page 39

 1     lines.  That's paragraph 1719 in the judgement, and also transcript 8851.

 2             Witness MP-80 also confirmed that Martic was a superior to

 3     Celeketic and that Perisic did not issue command orders to Celeketic.

 4     The evidence about the relationship between Celeketic and Perisic plainly

 5     illustrates that there was neither any de jure or de facto authority on

 6     behalf of Perisic to issue command orders.

 7             The evidence of MP-80 is critical in this regard because it

 8     establishes clearly that neither Perisic or Celeketic believed or acted

 9     as though they were in a superior-subordinate relationship.

10             Let me conclude by addressing quickly the system of command and

11     control which the majority stated was bifurcated in two chains of

12     command.

13             JUDGE MERON:  You have five minutes, Mr. Bourgon.

14             MR. BOURGON:  I'll finish in two minutes, Mr. President.

15             From a military standpoint this simply makes no sense.  Celeketic

16     followed Martic's order to shell Zagreb and refused to follow

17     Mr. Perisic's attempt to convince him to stop.  This makes it clear that

18     Perisic did not have de facto authority to issue orders to Celeketic.

19     Martic's, whose orders were followed, is the one who exercised effective

20     control.  If Mr. Perisic would have had de facto authority, he would have

21     simply bypassed Celeketic and ordered directly the Orkan crew, who were

22     members of the 40th Personnel Centre, and tell them to stop.  He didn't

23     do that because he did not have the authority to do so.

24             Lastly, Mr. President, I will conclude in saying that in light of

25     all these observation, it is evident that there was no authority on

Page 40

 1     behalf of Perisic to issue binding orders which answers your question and

 2     the three prongs of your question.  There was no authority on behalf of

 3     Mr. Perisic either de jure or de facto to issue binding orders or to

 4     initiate disciplinary proceedings at the time Zagreb was shelled.

 5     Accordingly, the majority's finding must be reversed.

 6             Thank you, Mr. President.

 7             JUDGE MERON:  Thank you, Mr. Bourgon.  Do any of my distinguish

 8     colleagues wish to ask any questions?  I see not.  Therefore, we will --

 9     oh, Mr. Lukic, you -- you still have four minutes.

10             MR. LUKIC: [Interpretation] Thank you, Your Honours.  I see that

11     I don't have enough effective control over the members of my team but I

12     will try to be as brief as possible and say a few words about the

13     sentence.

14             I am in a very delicate situation.  I am supposed to speak about

15     the punishment where once I profoundly believe that General Perisic is

16     innocent.  Therefore I held that after your conclusion with respect to

17     the previous appeals -- grounds of appeal, you will not be faced with the

18     consideration of the grounds of appeal 14 to 17.  However, on this

19     occasion, I have to point out certain errors committed by the majority

20     that invalidate the sentence of 27 years of imprisonment.  By attaching

21     importance to non-relevant facts and by estimating crucial and important

22     facts without providing any statement or reasons for their conclusions

23     and by applying double counting and by reasoning that does not follow the

24     practice of the case law of this Tribunal, the majority committed such

25     errors that make the decision on the sentences completely unsustainable.

Page 41

 1             Our ground of appeal number 14 indicates that there are errors

 2     that the majority committed when concluding on the gravity of the crimes

 3     and the role of General Perisic.  The jurisprudence is ... I will skip

 4     this portion and at this point I will address only the submissions

 5     contained in our last ground of appeal, ground 17, relating to mitigating

 6     circumstances, and I will reaffirm everything that we stated in the

 7     appeal's brief under grounds 14, 15, and 16.  For interpreters, it is

 8     paragraph 20 of the written submissions I gave them.  I would like to

 9     move on to our last ground of appeal, ground 17, and indicate the errors

10     that the majority committed with respect to mitigating circumstances.

11             JUDGE MERON:  We are not getting translation.  Could you repeat

12     your sentence, please.

13             MR. LUKIC: [Interpretation] Bearing in mind particularly the

14     mandate of this Tribunal and Chapter VII of the UN charter, acts directed

15     at promoting peace in the territory of the former Yugoslavia were

16     generally accepted as a mitigating circumstance.  These are the words of

17     the Appeals Chamber decision in the Babic case, paragraph 71.

18             Peace is always an imperative of the international community.

19     Acts and consequences directed and contributing to peace must be valued

20     especially by the international community.

21             The importance of acts themselves are what you, Your Honours,

22     emphasised in the appeals judgement in Blagojevic, paragraph 330.  What

23     matters are acts for promoting peace regardless of the damage that the

24     accused effected.  However, the activities and consequences in

25     General Perisic's case, the majority suppressed both with regard to his

Page 42

 1     important activities in achieving peace in Bosnia, that the Trial Chamber

 2     found in paragraphs 1365 to 1369, as in the crucial moves that led to the

 3     liberation of the French pilots, paragraph 1378 to 1384.

 4             The majority in minimalising and even completely rejecting these

 5     circumstances uses similar argumentation.  They do not consider it to be

 6     mitigating circumstances because Perisic in these activities was

 7     motivated by military and political interests of the FRY and acted

 8     insincerely.  By reasoning in this way the majority committed an error.

 9     Specific acts and consequences of these acts do not matter to the

10     majority.  However, the consequences of the Perisic's -- of Perisic's

11     acts may not be ignored bearing in mind the said values that the practice

12     of this Tribunal respects.  I remind you that the Chamber in its

13     judgement quoted evidence that the French President Chirac conditioned

14     the signing of the Dayton Peace Accords on the liberation of the pilots

15     and that Perisic played a crucial role in their liberation,

16     paragraph 1383.

17             Is it possible that anything can override the findings on the

18     acts and consequences of the acts of Mr. Perisic that were directly

19     focused and led to the conclusion of peace in Bosnia.  For you, too,

20     Your Honours, the effect and consequences are important.  I will remind

21     you in the Appeals Chamber of Dragomir Milosevic in the Appeals Chamber

22     judgement in the Dragomir Milosevic case in paragraph 317 you accepted as

23     a mitigating circumstance the participation of the accused in the

24     agreement on the cessation of sniping.  This related to a very important

25     agreement, and although its effect was vastly inferior to that of the


Page 43

 1     Dayton Accords, you concluded at the time that this action by

 2     General Milosevic did have a certain positive effect.  Through this

 3     decision you have shown that the international community does not

 4     disregard actions and consequences.  The majority in this case did not

 5     find it significant and thus committed a discernible error.

 6             JUDGE MERON:  Mr. Lukic, I think your point is clear and we will

 7     look closer at it, I can assure you.  But we will adhere to the

 8     timetable.  We will now rise for a pause and resume at 10.30.

 9                           --- Recess taken at 10.11 a.m.

10                           --- On resuming at 10.30 a.m.

11             JUDGE MERON:  Please be seated.  Now we will have the

12     Prosecution, one hour.  We will have Prosecution, one hour.  My

13     colleagues tell me that the French translation was sometimes came late

14     because of the too great of speed of the delivery of the argument by the

15     counsel for the Defence, and I would ask counsel not to speak too fast to

16     make sure that the French interpreters are not exposed to too much

17     pressure and stress.  Thanks.

18             MS. GOY:  Good morning, Your Honours.  We have divided the

19     response to Perisic's appeal in the following way:  I will address

20     Your Honours on Perisic's liability for aiding and abetting and will in

21     this context address Your Honours' questions 1 through 4.  After that,

22     Ms. Martin Salgado will address Your Honour on Perisic's liability under

23     Article 7(3), and will answer Your Honours' question number 5.  And at

24     the end of our submission, Ms. Brady will address Your Honours on

25     sentencing.

Page 44

 1             Before answering Your Honours' questions 1 through 4, we would

 2     like to provide some context and shortly address the Prosecution's

 3     response in relation to Perisic's liability for aiding and abetting.

 4     These are grounds 1 through 12.

 5             The focus will be on ground 1, the overarching ground in relation

 6     to Perisic's liability for aiding and abetting.

 7             Perisic was not convicted for aiding and abetting because he

 8     supported the VRS in its war effort.  Perisic was convicted because he

 9     knowingly gave crucial support to an army whose units systematically

10     committed crimes.  He knew that he was giving support that would have a

11     substantial effect on the commission of the crimes of the VRS in Sarajevo

12     and Srebrenica.  As Chief of the General Staff of the VJ, Perisic oversaw

13     a system that provided extensive and comprehensive logistical and

14     personnel assistance to the VRS.  The units that committed the crimes in

15     Sarajevo and Srebrenica, the Sarajevo-Romanija Corps, the SRK, and the

16     Drina Corps were among the VRS units receiving that assistance.  These

17     units depended on Perisic's support to function as an army and to conduct

18     the operations in Sarajevo and Srebrenica in which crimes were

19     systematically committed.

20             Given that Perisic's support was crucial to units's whose war

21     efforts included the systematic commission of crimes, this support also

22     had a substantial effect on the crimes themselves.

23             JUDGE MERON:  Tell me, please, could Mr. Perisic as Chief of

24     Staff have stopped the aid being sent by his country?

25             MS. GOY:  The --

Page 45

 1             JUDGE MERON:  That aid began before he became Chief of Staff?

 2             MS. GOY:  We acknowledge, Your Honours, that the aid was already

 3     in progress when he became Chief of Staff, but he institutionalised the

 4     aid and he did nothing to stop it or to channel the aid into legitimate

 5     or unlawful purposes.

 6             JUDGE MERON:  But could he have done it, you think, in terms of

 7     his powers and authority?  Could he have said to Belgrade, No more aid,

 8     for example?

 9             MS. GOY:  If I could have a moment to consult, Your Honours.

10                           [Prosecution counsel confer]

11             MS. GOY:  Your Honours, the judgement does not -- does not deal

12     with it.  All we know is that his persuasive authority in the supreme

13     Defence, called the SDC went the other way.  He persuaded them to give

14     him authority to provide assistance.  He could therefore also have tried

15     to have used persuasive authority the other way, but because there are no

16     findings in the judgement, we cannot speculate.  All we know is he did

17     not make the attempt to do that.  Rather, he knowingly gave support to

18     the SRK and the Drina Corps whose units would probably commit crimes as

19     he knew.

20             From the early stages of the war, Perisic was aware of the VRS's

21     discriminatory intent and criminal conduct in fighting the war in

22     Bosnia and Herzegovina.

23             In relation to Sarajevo specifically, Perisic knew that the SRK

24     was carrying out an unlawful campaign of shelling and sniping, and he

25     knew that they would probably commit more crimes as the siege continued.

Page 46

 1             In relation to Srebrenica, he knew of the grave threat to the

 2     enclave.  He knew that tensions had already escalated.  He also knew of

 3     the high probability that crimes would be committed against the

 4     population as a consequence of the attack on the enclave, and through

 5     numerous sources Perisic became aware that the Drina Corps was, in fact,

 6     committing crimes in Srebrenica.

 7             He also knew that his acts would assist the commission of these

 8     crimes because of the nature and the scope of his assistance and the

 9     systematic nature of the commission of the crimes.

10             This is why he was found liable for aiding and abetting, for

11     knowingly providing crucial support to an army whose units systematically

12     committed crimes.

13             Contrary to what the Defence suggests, this does not mean, if one

14     holds Perisic liable for aiding and abetting, that one criminalises any

15     assistance to war efforts.  The legal standard does not place unrealistic

16     constraints on waging war or assisting war.  Rather, the test for aiding

17     and abetting contains sufficient safeguards against criminalising every

18     form of assistance to an army.

19             First of all, the actus reus requires not any kind of assistance

20     but one which has a substantial effect on the commission of the crimes.

21             Second, the actus reus needs to be coupled with the mens rea, and

22     this requires that the accused has to be aware not only of a small or

23     remote risk that crimes will be committed, but has to be aware of the

24     probability that crimes will be committed.

25             And it is not enough that the accused knows that any crime will

Page 47

 1     be committed.  Rather, he needs to be aware of the type of crime that

 2     will be committed, which requires awareness of the essential elements,

 3     including the mental state of the physical perpetrators.

 4             The accused further needs to know that his acts will assist the

 5     commission of the crime.  And again, knowledge of a small or remote risk

 6     is not sufficient.  He needs to be aware of the probability that his acts

 7     will assist.

 8             And this mens rea needs to be present at the time the accused

 9     provides assistance.

10             In light of these requirements, the test is far from a strict

11     liability test as the Defence suggests.  By providing crucial support to

12     units that systematically commit crimes in the knowledge that they will

13     probably commit more crimes and knowing due to the nature of the support

14     that it would have a substantial effect on these crimes, Perisic meets

15     all of these requirements.

16             Perisic was correctly found liable for aiding and abetting.  All

17     grounds in relation to his liability for aiding and abetting should be

18     dismissed.

19             Turning now to Your Honours' question.  In the first question

20     Your Honours asked --

21             JUDGE MERON:  Can I ask you, please, to clarify one question

22     which would help me understand the difficult problems that we have

23     better.

24             Imagine that the Appeals Chamber would feel that aid must be

25     specifically directed in order to enter a conviction for aiding and

Page 48

 1     abetting.  Could you point, please, to evidence on the record that would

 2     support a conviction for aiding and abetting if we consider this a

 3     requirement of specific direction to be a necessary one.

 4             MS. GOY:  Your Honours, the -- this depends very much on what is

 5     understood by specific direction in order to know what evidence would be

 6     required, and with Your Honours' permission, I'd like to address

 7     Your Honour's question one first in order to explain what we understand

 8     by it.

 9             Thank you.  In the first question Your Honours asked how should

10     the Appeals Chamber address the issue of specific direction in the

11     context of aiding and abetting liability.  Our answer is as follows:  The

12     Appeals Chamber in Mrksic, in paragraph 159, has settled the issue by

13     finding that specific direction is not an essential ingredient of the

14     actus reus of aiding and abetting, and there are no cogent reasons to

15     depart from this finding.

16             In ICTY case law, specific direction has, if at all, only ever

17     been discussed as part of the actus reus of aiding and abetting.  This

18     actus reus consists of assistance, encouragement or moral support, which

19     has a substantial effect on the commission of a specific crime of the

20     principle.  Specific direction is not an essential element of the

21     actus reus, because it is encompassed by its other elements.

22             And I would try to explain our position by going in the following

23     steps:  First, I would like to look at the origins of the words "specific

24     direction" in the jurisprudence of this Tribunal.  Second, I would like

25     to look at the interpretation of "specific direction" by the

Page 49

 1     Appeals Chamber in Blagojevic on which the Appeals Chamber in Mrksic

 2     relies.  And, third, I would like to look at the situation of an accused

 3     who is geographically remote from the scene of the crime.

 4             Starting with the words, the origins of the words "specifically

 5     directed."

 6             Your Honours will recall that the notion of specific direction

 7     was introduced into the jurisprudence by the Appeals Chamber in Tadic in

 8     the context of distinguishing between aiding and abetting liability and

 9     liability for joint criminal enterprise.  And Your Honours will find on

10     your screen now the relevant paragraph of the Tadic appeals judgement.

11     That's paragraph 229(iii).

12             Can Your Honours see?  Do you have it on your screens?  Yes?

13             So the Appeals Chamber in Tadic said, and I quote from the

14     beginning of that paragraph:

15              "The aider and abettor carries out acts specifically directed to

16     assist, encourage or lend moral support to the perpetration of a certain

17     specific crime ... and this support has a substantial effect on the

18     perpetration of the crime."

19             So what is required for aiding and abetting are acts which are

20     specifically directed to a certain type of conduct:  The assistance,

21     encouragement or moral support, which in turn go to a specific crime.

22             And the Appeals Chamber contrasted that with what is required for

23     joint criminal enterprise and I quote the rest of that paragraph:

24             "By contrast, in the case of acting in pursuance of a common

25     purpose or design, it is sufficient for the participant to perform acts

Page 50

 1     that are in some way -- that in some way are directed to the furthering

 2     of the common plan or purpose."

 3             So what is required for joint criminal enterprise is any kind of

 4     conduct can even be the perpetration of the crime itself, which is

 5     directed to the furthering not of a specific crime but more broadly to

 6     the common purpose.  So this is the context in which that language was

 7     introduced.

 8             As an objective element, we are discussing here the actus reus,

 9     conduct which is specifically directed to assist a specific crime

10     objectively can only mean that it was conduct which was sufficiently

11     connected with the specific crime to provide assistance.

12             It does not make sense in our view to require that the only

13     objective meaning of the act must be to assist the crime, because almost

14     every act could be used for criminal or noncriminal action.

15             This is consistent with the case law of the Furundzija trial

16     judgement, paragraph 243, which said that the conduct of the aider and

17     abettor itself may be perfectly lawful.  It only becomes criminal when

18     connected or combined as the Furundzija trial judgement said with the

19     principal's unlawful conduct.  And whether the aider and abettor's acts

20     are sufficiently connected to assist depends on the context.

21             Finding that practical assistance provided had a substantial

22     effect on the commission of the crime in question will encompass that it

23     was assistance sufficiently connected with the crime.

24             And this is what the Appeals Chamber in Blagojevic meant when it

25     stated that specific direction will often be implicit in the finding that

Page 51

 1     the accused provided practical assistance to the principal perpetrator

 2     which had a substantial effect.  That is Blagojevic appeals judgement

 3     paragraph 189.

 4             And it is important to keep in mind when looking at that

 5     Blagojevic appeals judgement that the Appeals Chamber in paragraph 193

 6     concluded its discussion on specific direction by saying that the

 7     principal question for aiding and abetting for the actus reus is whether

 8     the accused had a substantial effect on the perpetration of the crime.

 9     This means that the Appeals Chamber in Mrksic correctly interpreted

10     Blagojevic as meaning that specific direction is not an essential

11     ingredient of the actus reus of aiding and abetting.

12             If we look now at the situation of an accused who is

13     geographically removed from the scene of the crime, the answer in our

14     view remains the same.  There is no reason why the legal test should be

15     different in case of geographically removed accused.  The Defence does

16     not provide support for their proposition other than pointing to

17     Judge Moloto's dissenting opinion to the trial judgement which itself

18     does not provide further support.

19             Remoteness in our view can be a factor in the Trial Chamber's

20     assessment of the principal question whether on the facts the acts of the

21     accused have a substantial effect on the commission of the crime.

22             So the accused's remoteness may in practice mean that it can be

23     more difficult to show that the conduct had a substantial effect if the

24     accused is far away from the scene of the crime, but this does not change

25     the legal test.  And we have also addressed in our response brief in

Page 52

 1     paragraphs 96 to 99 that for aiding and abetting the assistance must not

 2     be direct.  So the fact that assistance was provided to a depot which

 3     then provide it to the units does not mean that the connection is not

 4     sufficient.

 5             To conclude, as part of the actus reus specific direction is

 6     encompassed by the requirement that the aider and abettor must carry out

 7     acts of assistance, encouragement and moral support which have a

 8     substantial effect on the crime.  And just for completeness, we would

 9     like to add it is not possible to interpret specific direction as a

10     subjective requirement of aiming at a purpose.  And I would just like to

11     remind Your Honours the Defence referred to the language of aiming at in

12     some of the ICTR appeals judgements and we looked at where the language

13     of aiming at came from and it seems to have come from a translation error

14     we might say, because the first time it appeared was, as far as we could

15     find, was in the Ntagerura appeals judgement --

16             JUDGE MERON:  You might be going a tiny bit too fast.

17             MS. GOY:  Oh, I'm sorry.

18             The first time it appeared, as we could find, was in the

19     Ntagerura appeals judgement.  In the English translation of that

20     Ntagerura appeals judgement, the judgement was rendered in French and in

21     the French in paragraph 370, the Appeals Chamber used the French terms

22     "act qui vise specifiquement a," which is the -- the -- the French phrase

23     that was used from the very beginning when they translated what the

24     Appeals Chamber had said in Tadic.  So the French translation did not --

25     the French original did not introduce new terminology.  It was in the

Page 53

 1     English translation of it that the words "aiming at" were introduced, and

 2     they were then late reused in other judgements.  So aiming at from our

 3     point of view simply occurred as a translation error.

 4             So it's not possible to understand specific direction as a

 5     subjective requirement.  The Appeals Chamber in Mrksic in paragraph 159,

 6     that is the same paragraph I already referred to, made it very clear the

 7     notion of direction forms part of the actus reus, not of the mens rea of

 8     aiding and abetting.

 9             And more importantly, the mens rea for aiding and abetting is

10     knowledge, and I refer Your Honours generally to ground 7 of our

11     response.  And this knowledge standard is incompatible with understanding

12     specifically directed as purpose.

13             This knowledge standard is based on customary international law.

14     It has been applied in this Tribunal and the ICTR for more than 10 years,

15     and it is also applied by other international courts and tribunals such

16     as the Special Court for Sierra Leone, the Special Tribunal for Lebanon,

17     the Extraordinary Chambers in the Courts of Cambodia.  And there is no

18     cogent reason to depart from this standard of knowledge.

19     Article 25(3)(c) the aiding and abetting paragraph of the ICC statute

20     does not constitute cogent reasons because it was not intended to nor

21     does it constitute an expression of customary international law.

22             The Appeals Chamber in Mrksic in the same paragraph 159 has

23     correctly and explicitly rejected any elevated mens rea standard.

24             To conclude our answer on question 1, specific direction is

25     encompassed in the other elements of aiding and abetting liability.

Page 54

 1             JUDGE MERON:  So you are suggesting that the Rome Statute

 2     language that the person must have acted for the purpose of facilitating

 3     the commission of a crime as a requirement for aiding and abetting is not

 4     something that we should take into account.

 5             MS. GOY:  No, Your Honours.  That is not -- it does not

 6     constitute a reflection of customary international law.  If one looks at

 7     the negotiation history, it was a compromise that was negotiated because

 8     it couldn't be agreed upon whether the language of intention or knowledge

 9     should be used and this is the language that was introduced, but there is

10     nothing to suggest in the -- in the -- in the -- when one looks at how it

11     was established that suggests that the State parties were trying to

12     establish customary international law.

13             Turning to Your Honours' second question:  Can aid that is not

14     specifically directed towards a particular crime have the substantial

15     effect required to enter a conviction for aiding and abetting?

16             In a way I've already answered this question in my response to

17     question 1.

18             Only if one were to understand specific direction as a subjective

19     requirement, which it is not, can we even ask the question whether aid

20     which is not specifically directed towards a particular crime can have

21     the substantial effect on the commission of the crime, because then it

22     would be an independent inquiry from the objective requirement of

23     substantial effect, and then the answer would be yes, because it is an

24     independent subjective inquiry from the objective requirement of

25     substantial effect.

Page 55

 1             But as we have explained, specific direction cannot be

 2     interpreted as such a subjective requirement.  Rather, as I've just

 3     explained, specific direction as part of the actus reus is encompassed in

 4     the requirement that assistance has to have a substantial effect.

 5             If Your Honours follow this position, then the question does not

 6     really arise.  However, if we were to answer if, the answer would be like

 7     this:  An act which is not directed as assisting the specific crime in

 8     the sense that it is not sufficiently connected to consist in assistance

 9     cannot have the substantial effect which is required for aiding and

10     abetting.  This means the answer would be no.

11             Turning to Your Honours' third question.  Did the aid facilitated

12     by Perisic meet the requirements of specific direction, if any, in the

13     context of aiding and abetting?  And I'd like to come back to

14     Your Honour Meron's question at the very beginning asking me to point to

15     specify evidence, because now as I've explained our position, I'm able to

16     refer to that.

17             Only if one were to -- to understand specific direction in the

18     sense of aiming at a purpose, the subjective requirement, would one say

19     that the aid facilitated by Perisic may not have met the specific

20     direction requirement, because the Prosecution's case at trial was

21     never -- and therefore we cannot point to any evidence that it was

22     Perisic who aimed at assisting the specific crimes.  But I emphasise

23     again, in our view specific direction means the acts are sufficiently

24     connected with the specific crime to provide assistance and because here

25     the acts were connected with the specific crimes in the sense that his

Page 56

 1     conduct had a substantial effect on them, the answer is yes.  And I will

 2     elaborate on the substantial effect of Perisic's assistance.

 3             So the evidence we would refer Your Honour to is the one we have

 4     mentioned in our response brief with regard to grounds 5 and 6, the

 5     grounds dealing with the substantial effect.

 6             Turning to Your Honours' fourth question then:  Did the

 7     Trial Chamber err in finding that the assistance facilitated by Perisic

 8     have a substantial effect on the commission of the VRS's crimes?

 9             The short answer is no.  The Trial Chamber did not err.

10             Given the crucial nature of the support that Perisic provided to

11     the VRS units which systematically committed crimes, the only reasonable

12     conclusion is that Perisic's conduct did have a substantial effect on the

13     commission of the VRS's crimes in Sarajevo and Srebrenica.  The

14     Trial Chamber found that the logistical assistance Perisic provided and

15     the personnel assistance both as individually as well as accumulatively

16     had a substantial effect on the VRS's crimes in Sarajevo and Srebrenica.

17             And this conclusion is the only reasonable one, because the VRS

18     units in Srebrenica and Sarajevo, the Drina Corps and the SRK, depended

19     on the VJ to fight war.  Perisic's support was crucial for fighting that

20     war.  That war encompassed the systematic commission of crimes by the

21     VRS.  It was not a mere byproduct as the Defence said today.  This means

22     that the support provided by Perisic was crucial also for the commission

23     of the crimes and therefore had a substantial effect on these crimes.

24             Perisic was the architect of the system which supported the VRS

25     through personnel assistance and logistical assistance which both had a

Page 57

 1     substantial effect.

 2             And I will first address the personnel assistance.  Perisic

 3     sustained the lifeline of the VRS officers in Sarajevo and Srebrenica by

 4     creating and maintaining the personnel centres.

 5             Through the personnel centres he ensured that the VJ officers who

 6     were serving in the VRS continued to receive their salaries from the VJ

 7     and enjoyed all the VJ benefits.

 8             Because they were members of the personnel centres, the officers

 9     could implement the war strategy which encompassed the systematic

10     commission of crimes in the way they did, without worrying about the

11     basic needs of themselves and the needs of their families.

12             This had a substantial the effect on the crimes in Sarajevo and

13     Srebrenica, because the key officers responsible for those crimes such as

14     Ratko Mladic, Dragomir Milosevic, Stanislav Galic, Radislav Krstic,

15     Vujadin Popovic, Milan Gvero, Zdravko Tolimir and others were members of

16     the 30th Personnel Centres.  They could fight the war which included the

17     systematic commission of crimes without the concerns for their basic

18     needs and those of their families, because the personnel centre system

19     ensured that they received their salaries, their pensions, housing

20     benefits, health insurance and medical assistance.

21             So to conclude, the personnel assistance did have a substantial

22     effect on the crimes in Sarajevo and Srebrenica.

23             In addition to the personnel assistance Perisic also provided

24     logistical assistance which had a substantial effect on the commission of

25     the crimes.  Perisic and I referred to that already in the beginning in

Page 58

 1     my answer to Judge Meron's question, he persuaded the Supreme

 2     Defence Council to give him legal authority to provide such assistance

 3     and he encouraged the SDC to maintain that assistance throughout.  He

 4     agreed with Mladic on the appropriate procedure by which Perisic would

 5     approve the requests for assistance by the VRS.

 6             As Chief of the General Staff of the VJ, Perisic therefore

 7     oversaw a system that provided comprehensive and extensive logistical and

 8     technical assistance the VRS.  This included large quantities of

 9     ammunition and other weaponry, technical expertise, repair services,

10     fuel, and personnel training.

11             This system under Perisic made it possible for the VRS to

12     function as an army and to fight the war, and among those receiving the

13     assistance were the units we are concerned with, the SRK and the

14     Drina Corps.

15             Because the VJ under Perisic was the key contributor of such

16     assistance, mostly free of charge, the assistance had a substantial

17     effect on the commission of the crimes.  Without the system overseen by

18     Perisic, the Drina Corps and the SRK could not have fought the war in

19     Sarajevo and Srebrenica in the way they did, and they could also not have

20     committed the crimes as they did.

21             The Chamber carefully analysed the evidence and provided a

22     detailed factual review.  In the following I will focus on the assistance

23     provided in the connection with weaponry.

24             The General Staff of the VJ under Perisic's supervision provided

25     large quantities of weaponry and related assistance to the VRS including

Page 59

 1     to the SRK and the Drina Corps, and this support was provided through

 2     three main channels.

 3             First of all, weaponry was provided directly to the VRS units

 4     including the Drina Corps and the SRK upon request of the Main Staff, and

 5     I refer Your Honours specifically to trial judgement paragraph 1062 and

 6     1064.

 7             Second, the Koran depot that was the VRS storage depot for

 8     weaponry which supplied the Drina Corps and the SRK obtained

 9     approximately 70 per cent of its ammunition from the VJ.

10             And third, the VJ General Staff under Perisic provided important

11     logistical assistance to Pretis.  Pretis was the industrial company and

12     factory that produced weaponry for the VRS.  And this Pretis factory

13     supplied, among others, the Drina Corps and the SRK.  Pretis produced

14     large calibre artillery ammunition, shells, mines, and modified air

15     bombs.  The VJ General Staff under Perisic was actively involved in

16     practice.  It provided support for the production of air bombs.  This

17     support included devising the model by which the air bombs were modified,

18     sending experts to solve operational problems with the air bombs and

19     providing the VRS with parts for the air bombs.

20             The VJ General Staff also tested practice weaponry at VJ

21     facilities, and, very important, the VJ General Staff repaired VRS

22     weaponry and overhauled Pretis artillery casing at Kragujevac, a

23     technical overhaul company.  Due to this overhaul, the casings could be

24     reused up to five times.  In addition to the logistical assistance I have

25     just discussed, the VJ under Perisic's authority also provided fuel,

Page 60

 1     training, and technical expertise to the VRS.  These different ways of

 2     logistical support were so important to the VRS including the Drina Corps

 3     and the SRK that it depended on them to fight the war regardless of its

 4     other sources of supply.

 5             And Mladic and Perisic themselves acknowledged this dependence.

 6     Perisic, for example, told the SDC in February 1994 the RS and the RSK

 7     certainly can't be defended without our assistance and weapons and

 8     military assistance.  That's trial judgement 965, Exhibit P782.  And

 9     Mladic says we would not be able to live without the FRY assistance.

10     That's trial judgement 1598, Exhibit P1282.

11             The Trial Chamber carefully analysed the other sources of supply

12     on more than 20 pages.  It found that the logistical assistance that the

13     VRS received from the VJ with Perisic's approval was very important in

14     comparison with other sources.

15             So regardless of the other sources of supply, the VRS, including

16     the Drina Corps and the SRK, depended on the VJ to wage a war, a war that

17     encompassed the systematic commission of crimes.  It is therefore

18     inevitable that the Drina Corps and the SRK also depended on the VJ to

19     commit the crimes in Sarajevo and Srebrenica.

20             The Trial Chamber reached the only reasonable conclusion when

21     finding that the logistical assistance provided by Perisic had a

22     substantial effect on the commission of the crimes.

23             Contrary to the Defence's suggestion, this is not undermined by

24     the fact that the Trial Chamber was not able to find beyond a reasonable

25     doubt on the evidence presented in this case that Perisic was involved in

Page 61

 1     providing specific shells and bullets recovered from crime scenes in

 2     Sarajevo and Srebrenica.  And I would like to point out that these

 3     bullets were, in any event, only a sample.

 4             First of all, there were numerous other forms of practical

 5     assistance that I've just discussed.

 6             In addition, in light of the amount of ammunition provided, the

 7     length of time during which they were provided, no way of channeling them

 8     between lawful and unlawful use and the number of crimes committed, it

 9     simply would not have been reasonable to conclude that the ammunition

10     provided by the VJ was only used for lawful purposes.  Rather, given how

11     crucial the provision of weaponry was for the VRS, their war effort,

12     including the criminal aspect of it in Sarajevo and Srebrenica, would

13     have been much more difficult or even impossible if the VJ had not

14     provided large quantities of weaponry.

15             And this is regardless of whether the Trial Chamber was able to

16     find on the basis of the evidence presented that these specific bullets

17     were provided by the VJ.

18             To conclude, the Trial Chamber reached the only reasonable

19     conclusion:  The personnel assistance as well as the logistical

20     assistance Perisic provided had a substantial effect on the commission of

21     the crime by the VRS in Sarajevo and Srebrenica.

22             JUDGE MERON:  Could I ask you, Counsel, this question, it may

23     sound a bit hypothetical and it will be, but it would help us understand

24     the problems presented by this case, but before asking it, let me repeat

25     something which should be entirely obvious to everybody who knows the

Page 62

 1     practice of this appeals court.  When we ask questions, it does not at

 2     all mean that this -- they represent our own view.  We are probing,

 3     because we want to know more about the problems, and this is the spirit

 4     in which you should understand my question.

 5             Now, assume that the military aid supplied by country B -- A is

 6     100 per cent, is full.  So we don't have to worry about the origin of the

 7     munition.  Assume that it is the entire -- it comprises the entire

 8     supply.  The country supplies therefore the entire military aid to a

 9     warring party in the neighbouring country B.  In the neighbouring country

10     B there is a war going on and the recipient engages both in lawful

11     military activities but also in large-scale shelling of civilian towns.

12     Would without more the Chief of Staff of country A be criminally liable?

13             MS. GOY:  The answer to -- to the question depends on whether all

14     the requirements of aiding and abetting are met.  So the first question

15     would be is there a substantial effect by the aid on the commission of

16     the crime?  So --

17             JUDGE MERON:  That's only ammunition and weapons that they have.

18     Assume that.

19             MS. GOY:  The question is then how much did the Chief of Staff

20     know when providing --

21             JUDGE MERON:  Assume it is known but nothing more than known.

22                           [Prosecution counsel confer]

23             MS. GOY:  Your Honours, the -- the question is if, according to

24     our position, if the Chief of Staff is aware of both, that the -- that

25     there is not only a small or remote risk that crimes will be committed,

Page 63

 1     but there is the awareness of a probability of crimes, and he is aware

 2     that the assistance provided will probably be used for the -- for the

 3     commission of these crimes, then from our point of view the requirements

 4     of aiding and abetting are fulfilled.

 5             JUDGE MERON:  Thank you.  Thank you.  If you want to develop it

 6     further.  I did not mean to interrupt you.

 7             MS. GOY:  No.  I just wanted to add maybe one requirement which

 8     comes back to what Your Honour said in the very beginning.  The question

 9     might also be whether there are ways in this hypothetical scenario to

10     channel the assistance into the use for legitimate purposes and the use

11     for non-legitimate purposes.  So this may be a factual question, an

12     additional factual question that Your Honours may have to take into

13     account in deciding on the actus reus and the mens rea.

14             JUDGE MERON:  Thank you.

15             MS. GOY:  This would end my submission on the four questions.

16     Unless Your Honours have further questions I would hand over to my

17     colleague, Elena Martin Salgado.

18             MS. MARTIN SALGADO:  Good morning, Your Honours.  I will be

19     responding to the Defence appeal on superior responsibility and to Your

20     Honours' fifth question.

21             In answer to this question, this is no error.  The Chamber

22     correctly found that Perisic had de jure and de facto authority to issue

23     command orders and to discipline the members of the 40th Personnel Centre

24     serving in the SVK.

25             In reaching this conclusion, the Chamber carefully evaluated the

Page 64

 1     evidence and looked at it in its proper context.  This was a context

 2     characterised by a policy of keeping VJ's links to the SVK secret, and by

 3     the pursuit of the overlapping goals of the VJ and the SVK.

 4             Under the cover of formal assignment to the

 5     40th Personnel Centre, VJ troops served in the SVK.  The

 6     40th Personnel Centre which Perisic created was designed to conceal the

 7     links of the VJ to the SVK, not to sever them.  It was designed to let

 8     the VJ and the SVK pursue their common goals safe from public scrutiny.

 9             What the Chamber did was to remove this veil of deception and

10     show Perisic's position of authority and effective control over members

11     of the 40th Personnel Centre.

12             It found that the 40th Personnel Centre members responsible for

13     shelling Zagreb were Perisic's subordinates.  This was the right

14     conclusion and Perisic's conviction must stand.

15             Beginning with Perisic's de jure authority, the Chamber

16     unanimously found that Perisic was de jure superior to

17     40th Personnel Centre members, and I refer you to the trial judgement at

18     paragraphs 1665 and 1668.

19             De jure members of the VJ -- sorry, members of the 40th

20     Personnel Centre were VJ members even while they were serving in the SVK.

21     Perisic was the highest military commander in the VJ, and this means that

22     during the entire period relevant to the indictment, Perisic had de jure

23     authority over the 40th Personnel Centre, which was part of the

24     General Staff.  De jure, therefore, his powers over the 40th Personnel

25     Centre members were the same as his powers over the rest of the VJ.  He

Page 65

 1     could order and he could discipline them in the same way.

 2             That's his de jure authority.  Turning to Perisic's de facto

 3     abilities to order and discipline members of the 40th Personnel Centre.

 4     The Chamber considered these capacities in context and together with

 5     other evidence of effective together.

 6             I have already spoken about the context of secrecy and the

 7     community of goals.  Regarding other evidence, the Chamber correctly used

 8     Perisic's de jure authority as evidence going to effective control.

 9             The Chamber also considered other powers that Perisic had.

10     Perisic could verify promotions and terminate the service of the members

11     of the 40th Personnel Centre who held all the key positions, key

12     commanding positions, in the SVK.  Perisic oversaw their salary and other

13     assistance on which the SVK depended.  Perisic also received regular

14     reports from the SVK, which allowed him to issue orders to the 40th

15     Personnel Centre members where necessary.

16             Perisic this these powers throughout, and they all support

17     effective control.  These powers also corroborate Perisic's ability to

18     order and discipline members of the 40th Personnel Centre.

19             So for example, the Chamber found that terminating military

20     service was a means of disciplining members of the 40th Personnel Centre.

21     Denying promotion where he disapproved of behaviour was another way for

22     Perisic to impose discipline.

23             Before addressing the specific evidence of de facto ordering and

24     disciplining, I would like to emphasise that we are interested in

25     ability, that's ability to prevent or to punish, ability to order or to

Page 66

 1     discipline.  While the actual exercise, so the actual issuing of command

 2     orders, is relevant to determining ability, it should not be confused

 3     with it.  As the Trial Chamber found in Popovic, it is ability that

 4     evidences superior-subordinate relationship, because to require otherwise

 5     would significantly narrow superior responsibilities.

 6             Turning to Perisic's ability to issue command orders.  Perisic

 7     issued command orders before, during, and after the shelling of Zagreb.

 8     Again, Your Honours, the number of command orders in evidence needs to be

 9     seen in light of the context.  Perisic's direct intervention risked

10     exposing the VJ's links to the SVK, something he and the FRY leadership

11     were at pains to keep secret.  The number of command orders in evidence

12     is also consistent with Perisic's position at the top of the VJ hierarchy

13     and also needs to be seen in the context of the overlapping goals of the

14     VJ and the SVK.  For as long as these goals coincided Perisic did not

15     need to get involved.

16             And against this backdrop, the command orders in evidence

17     significantly demonstrate Perisic's order to issue them.

18             Before the shelling of Zagreb, we have evidence that Perisic

19     issued two command orders.

20             Exhibit P1800 is a command order issued by Perisic on the

21     authority or instructions of Milosevic, who at the time was the President

22     of Serbia.  Now, this makes sense because the order was addressed not

23     just to Celeketic, who was part of the 40th Personnel Centre and who was

24     the SVK Main Staff commander, but it was also addressed to Martic, who

25     was the president of the RSK.  The order shows that Perisic was

Page 67

 1     considered to have authority over the SVK, and this is corroborated by

 2     intercept evidence where both Milosevic and Mikulic, who was the RSK

 3     prime minister, expect SVK to follow Perisic.  And you can find this

 4     evidence cited at paragraph 1727 and footnote 4724 of the trial

 5     judgement.

 6             Returning to P1800, it was complied with and the compliance

 7     report was addressed to Milosevic through Perisic as required by the

 8     express terms of the order.

 9             The other command order in evidence issued before 2 May 1995 is

10     Exhibit P1925.  It was addressed to at least one member of the

11     40th Personnel Centre, and it is clear from its mandatory terms that it

12     was a command order and this order was followed, and we refer you to the

13     evidence we have cited in paragraph 264 of our response brief.

14             During the shelling of Zagreb on 2 May 1995, Perisic ordered

15     Celeketic to stop the shelling.  This also shows that Perisic had the

16     ability to issue command orders.  Celeketic, however, followed Martic's

17     order and continued to shell Zagreb the next day.  Celeketic did

18     eventually comply with Perisic's order demonstrating that he regarded it

19     as binding and for this we have on 3rd May, 1995, Perisic reporting to

20     Milosevic, "Yes, actions stopped.  First I forced him to stop and he

21     stopped."

22             In this regard, the Defence argument that parallel chains of

23     command exclude effective control is contradicted by the case law that we

24     have cited in paragraph 269 of our response brief, but its claim that it

25     makes no military sense to have parallel chains of command is

Page 68

 1     contradicted by evidence that was heard by the Chamber from expert

 2     witness General Melvin, and that's at transcript page 9416, 9444, and

 3     2772.

 4             After the shelling of Zagreb, Croatia took control over the

 5     territory of Western Slavonia.  The Defence claims that goals diverged as

 6     a result of the Zagreb shelling or during the Zagreb shelling but this is

 7     contradicted by evidence that after the shelling Perisic continued

 8     approving requests for assistance.  And you can find some of that

 9     evidence cited at paragraph 1246 of the trial judgement.

10             What happened after the shelling of Zagreb was that Perisic

11     decided to become more involved in controlling the SVK, and this shows

12     that he had the ability all along.

13             JUDGE MERON:  Just to remind you, counsel, you have five minutes.

14             MS. MARTIN:  Thank you, Your Honour.  Celeketic was replaced as

15     commander of the SVK staff and he was replaced at Perisic's behest by

16     another member of the 40th Personnel Centre, Mile Mrksic.  The evidence

17     that Mile Mirkovic did not take orders from President Martic but instead

18     from Perisic confirms Perisic's ability to issue command orders.

19             Before and during Operation Storm in August 1995, Perisic issued

20     several command orders to members of the 40th serving as SVK corps

21     commanders.  Mandatory language of the orders confirms they are command

22     orders.  In particular, during Operation Storm, Perisic ordered to

23     address and if necessary execute "all scaremongers."  This shows him

24     intervening at corps level to maintain discipline in the SVK as the SVK

25     approaches defeat.  The order also demonstrates Perisic's power to

Page 69

 1     discipline to which I turn.

 2             Perisic could and did initiate disciplinary and/or criminal

 3     proceedings against members of the 40th.  He did so when the SVK

 4     surrendered and the RSK fell in the hands of the Croatian forces.

 5     Importantly, investigations focused on the conduct of the 40th Personnel

 6     Centre while they had been serving in the SVK, and by seeking to

 7     discipline these officers for their dereliction of military duty while

 8     serving in the SVK, Perisic showed his connection to them.  And this is

 9     the reason proceedings were never formally pursued as they risked

10     exposing the VJ's intervention in the war in Croatia.  Instead as

11     punishment, service was terminated.

12             The Defence argues that Perisic only took these disciplinary

13     measures after the fall of the RSK when in their argument new command and

14     control relationships came about.  But they do not substantiate this

15     argument with any evidence.  In fact, during this entire time, there was

16     no systemic change in Perisic's powers over the members of the

17     40th Personnel Centre.  He did not acquire more powers after the shelling

18     of Zagreb or after the fall of the RSK.  Throughout, he was Chief of the

19     General Staff.  The other indicators of the effective control continued

20     the same.  His authorities and effective control continued the same and

21     it included his power to issue command orders and to discipline.  Perisic

22     does not show an error in the finding that he chose not to exercise these

23     powers rather than he could not do so.

24             The Chamber saw through the facade the 40th Personnel Centre and

25     analysed the reality of Perisic's relationship to its members, and for


Page 70

 1     this reason his appeal on superior responsibility should be dismissed.

 2     Thank you, Your Honours.

 3             JUDGE MERON:  Thank you very much.  This brings to an end --

 4     Ms. Brady.

 5             MS. BRADY:  Your Honours, I clearly have even effective control

 6     over my team than Mr. Lukic has over him because I obviously have only

 7     two minutes left.  Your Honours, I was going to make a few comments about

 8     Mr. Perisic's sentence in light of the time we can largely rely on our

 9     briefs, safe to say that the 27-year sentence that was imposed upon

10     Mr. Perisic is not manifestly excessive.  Its entirely appropriate given

11     that Mr. Perisic's crucial role in assisting and facilitating these

12     crimes which were of the greatest magnitude.  Today Mr. Lukic has focused

13     on the mitigating factor especially in relation to Perisic's apparent

14     efforts to promote peace.  In our submission the Chamber was properly

15     placed to determine how genuine those efforts were and what weight to

16     accord them, and in fact in our submission the Chamber within the bounds

17     of its discretion were correct in giving no weight to his advocating for

18     peace during the war and in that respect also the French in relation to

19     the release of the French humanitarian workers and UNPROFOR hostages

20     because of their finding that he did not genuinely work towards peace,

21     having found in essence that his actions were motivated by political

22     expedience rather than altruism.

23             And the same goes in relation to the release of the French

24     pilots.

25             Your Honours, in summary, to conclude Prosecution's response to


Page 71

 1     the Defence's appeal, a 27-year sentence is appropriate.  He hasn't

 2     either today or in his brief shown any discernible error that would

 3     warrant a reduction.  The sentence reflects the gravity of the underlying

 4     crimes themselves in Srebrenica in Sarajevo and in Zagreb, and his 7(3)

 5     responsibility for Zagreb and his contribution to those crimes.  We ask

 6     that you dismiss all grounds of the appeal.  Thank you, Your Honours.

 7             JUDGE MERON:  Thank you, Ms. Brady.  We will now have a 20-minute

 8     pause and resume at 11.50 sharp.

 9                           --- Recess taken at 11.30 a.m.

10                           --- On resuming at 11.50 a.m.

11             JUDGE MERON:  Please be seated.

12             Reply by Mr. Perisic's counsel, 30 minutes.

13             MR. LUKIC: [Interpretation] I have resumed the control over my

14     team, so I'm going to address you first.

15             JUDGE MERON:  Oh, I'm terribly sorry.  Go on.

16             MR. LUKIC: [Interpretation] Very briefly I'm going to say

17     something about the sentence, because obviously this part received the

18     least attention today, and I'm relying on the submission made by the

19     Prosecution.

20             Today, they claim that the Defence of Mr. Perisic in its appeals

21     brief failed to point to any significant error committed by the majority

22     on the basis of which the sentence could be reduced.  I'm not going to

23     repeat all the errors that we pointed out in our brief, but very briefly,

24     I can only say now that the Defence has clearly demonstrated that the

25     majority has committed an error in assessing the gravity of the crime,

Page 72

 1     because in its judgement, it weighed it with regard to the objective

 2     gravity of crimes and not in light of the specific crimes of which it

 3    found General Perisic guilty.  Specifically, in relation to the Srebrenica

 4     crime, the only arguments contained in the judgement pertain exclusively

 5     to the crime of extermination of which Mr. Perisic was acquitted.

 6             As for the crimes in Sarajevo the majority relies on the crime of

 7     terror for which Mr. Perisic was not even charged and it relied on the

 8     four-year period of the siege of Sarajevo which is beyond the indictment

 9     period, since we know that he was chief of the VJ General Staff for a

10     much shorter period.

11             Another thing that I would like to underline is an error that

12     appears in two grounds of the appeal in a similar way, both with respect

13     to individual acts committed by the accused, or his role in the crimes

14     that should be established by the Trial Chamber whilst weighing the

15     gravity of crimes, and with respect to the facts that the Chamber took as

16     aggravating circumstances concerning the abuse of authority.  In both

17     cases, the majority did not provide any argumentation but solely entered

18     a finding of the fact.

19             I would remind you of your standard from the judgement in --

20     where you say that the Trial Chamber should provide conclusions with the

21     written statement of reasons in order for the person found guilty be able

22     to -- to counter it and for the Appeals Chamber to be able to understand

23     the reasoning of the Trial Chamber.  Nowhere in the judgement there is

24     any finding that they found that the actions of Mr. Perisic were

25     unlawful.  Nowhere in the judgement, likewise in the conclusions relating

Page 73

 1     to the gravity of the crimes and regard to the role of Mr. Perisic, there

 2     is nothing more than the sentence which says that he held the position of

 3     the VJ Chief of General Staff during the relevant period.  Therefore,

 4     both you and the Defence are at a loss to conclude what was taken into

 5     account and what was not taken into account.

 6             Now, as for mitigating circumstances, what I said today is in a

 7     way related to what was written in our brief, and that is that you, by

 8     relying on your practice, I mentioned the Milosevic case, you are the

 9     ones who are going to evaluate the actions and the consequences, and this

10     is what has to be taken into account with regard to mitigating

11     circumstances.  In that sense, motivation cannot carry more weight than

12     the mitigating circumstances such as, for example, a contribution to

13     peace.

14             In the Milosevic case, as I said, you made a judgement that his

15     contribution to putting a stop to sniping campaign was so significant

16     that it was described as a mitigating circumstance.  And I may -- must

17     make another analogy, and it concerns mitigating circumstances in our

18     grounds for the appeal 17.  This concerns the findings in the conclusion

19     the relating to the saving of 700 ABH soldiers who -- who swam over the

20     Drina in 1995.  The majority committed an error by saying that that was

21     not a mitigating circumstance, because Perisic himself by providing

22     assistance to the VRS had contributed to the circumstances that they

23     found themselves in.

24             I would like to remind you as the Appeals Chamber, in the

25     Krajisnik case you took into account as a mitigating circumstance that he


Page 74

 1     helped some of the non-Serbs who were in detention despite the fact that

 2     he was one of the persons who created conditions for those people to be

 3     detained.

 4             In Dragomir Milosevic case, you, the Appeals Chamber, following

 5     the findings of the Trial Chamber, you found him guilty of having

 6     commit -- in order for the crimes to be committed, and then on the other

 7     hand his participation in peace negotiations you took into account as a

 8     mitigating circumstance.  In that sense, I think that this is a major

 9     error that the majority disregarded the fact that Perisic contributed to

10     the saving of more than 700 members of the ABH through his intervention

11     with Mr. Milosevic, and this should have been evaluated as a significant

12     mitigating circumstance.

13             Now I'm going to give the floor to my colleague Mr. Bourgon.

14             MR. BOURGON:  Good morning again, Mr. President.  I will address

15     question 5 and the arguments raised by the Prosecution in this respect.

16             Let me begin very quickly, Mr. President, by addressing the

17     argument that was not touched on by the Prosecution when they spoke about

18     Celeketic.  I said in my address to you this morning that Perisic, when

19     Celeketic refused to follow his advice to stop the shelling because he

20     disagreed, if he had had the authority over members of the 40th Personnel

21     Centre, he could have gone to the Orkan crew and say, Stop it.  That's

22     what a commander does when a commander has control over an entity

23     composed almost entirely where all the key officers are from the

24     40th Personnel Centre.

25             The majority did not look at this issue at all.  The majority

Page 75

 1     failed to note that Perisic did not do that.  And that is very important,

 2     Mr. President.  Why is it so important?  Well simply because Perisic did

 3     not do that for two reasons:  One, he respected the chain of command of

 4     the SVK; and, two, he knew that he did not have the authority to bypass

 5     Celeketic.  That's the key indicator of effective control.

 6             Now, when Milosevic spoke to Perisic, he never suggested to

 7     Celeketic, Hey, Momo, go straight to the 40 -- to the Orkan crew and tell

 8     them to stop.  He never said that.  Milosevic also understood that there

 9     was no such thing as authority of Perisic over the 40th Personnel Centre.

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

17   (redacted)

18             A few quick words on de jure.  The Prosecution referred to this

19     this morning and I would like to come back because they referred to what

20     I call is the circular argument, the circular argument which I referred

21     to which is what the majority did.  The majority said the perpetrators

22     are members of the 40th Personnel Centre.  Check.  Good.  The

23     40th Personnel Centre members are part of -- are the VJ.  I'll give that

24     to them.  Check.  That's good.

25             Mr. Perisic is the highest military officer in the VJ.  I'll give

Page 76

 1     it to them.  Check.

 2             But the question is:  So what?  How does that establish any type

 3     of de jure relationship?  What the Prosecution failed to do and what the

 4     majority also committed -- where the majority committed the error is by

 5     failing to take into account that once the members of the VJ were

 6     transferred to the 40th Personnel Centre, they moved into the SVK chain

 7     of command.  If you move into the SVK chain of command, where is Perisic

 8     in the SVK chain of command?  He's not there.  In the SVK chain of

 9     command you have Martic, Celeketic, Orkan crew and all these other

10     people, nobody else.  Perisic is not in that chain of command.  And the

11     Prosecution did not -- neither address the instructions, that's P734 or

12     P1082.

13             Now, I say Prosecution, but I could also say majority, because

14     the majority did not take this evidence into account in deciding that

15     there was a de jure relationship.

16             I move on, Mr. President, to the fact that at page 55, lines 6 to

17     9, the Prosecution said this morning that there was something, that the

18     actual exercise of authority was relevant but that what really mattered

19     is ability.  Well, they're right.  I'll give -- that's a correct

20     argument.  But the problem is the actual exercise is of the highest

21     relevance, and here you have no evidence that there were command orders

22     issued by Perisic before or during the shelling of Zagreb and that

23     Perisic did not initiate any -- any disciplinary proceedings before or

24     during the shelling of Zagreb.  Now, if you don't have this, you have to

25     supplement this with something else in order to come with a finding that

Page 77

 1     the only reasonable conclusion is that Perisic could do those things, but

 2     there is no -- that evidence is not there.  There's a couple of

 3     assumptions.  One of these assumptions is the fact that the goals

 4     diverge, and because he did not need to do so.

 5             Well, that's a nice theory but it's not proof.  The Prosecution

 6     said this morning in its address the difficulty is it's not because

 7     Perisic -- Perisic continued to give support even though after the

 8     shelling of Zagreb continued.  Again, I say so what?

 9             I'm told to conclude, Mr. President, so I will conclude

10     immediately.  I'm not going to come back on the orders issued by -- by

11     Perisic.  That's 1800 or 1925.  They do not establish any type of

12     command.  What the Trial Chamber -- what the Appeals Chamber must look

13     for is to evaluate in the context the type of relationship that Perisic

14     had with the SVK.  Did he exercise command over the SVK which comprised

15     mainly of 40th Personnel Centre officer?  That's why I referred the

16     Appeals Chamber to Blaskic and to Hadzihasanovic.  Again, the Prosecution

17     argument fails to address this issue, because when you compare the two,

18     you can come to only one conclusion, Mr. President, and that is that the

19     majority erred in finding that there was something called a superior to

20     subordinate relationship between Perisic and Celeketic.

21             And lastly I'll conclude simply by saying that the element or

22     criteria advanced by Judge Moloto which we took in our brief and we took

23     in our reply again was not addressed.  When two people believe or act --

24     unless they believe and they act as though they are in such a

25     relationship, they are not in such a relationship, Mr. President.  If I

Page 78

 1     say I have to force someone to do something, I'm certainly not into an

 2     effective control relationship.

 3             Thank you, Mr. President.  Mr. Gregor Guy-Smith will pick up from

 4     here.

 5             JUDGE MERON:  Mr. Guy-Smith.

 6             MR. GUY-SMITH:  The response to the question:  Could he stop the

 7     aid being sent through his country?  The answer is -- is very clear.  The

 8     answer is no.  It's an unqualified no and the Prosecution should have

 9     answered the question [indiscernible].  And the reason is very simple.

10     He's not the president of the country.  He was not the SDC.  He was not

11     involved in the Ministry of Defence.  And what you -- your question deals

12     with an entire state and the way that a state behaves.  He is one

13     component part of the state, but he is not the state which is why it is

14     so important to take a look at and recognise the importance of personal

15     culpability.

16             I want to ask -- I want to ask a question where -- where do we

17     think we're going right now?  Where do we think the law right now is

18     going?  Because in terms of the hypothetical that you put forth,

19     Your Honour, the answer is really very clear.  We see case after case

20     after case around the world right now where you have what you call rebel

21     movements, self-determination movements that fall precisely into your

22     fact pattern where crimes are being committed as we see them being

23     committed.  So each and every nation state that gives assistance to those

24     rebels or to the other side is guilty of aiding and abetting.

25             Now, do we think there's going to be prosecutions throughout the

Page 79

 1     world for the United States and its personnel or for the United Kingdom

 2     or for France or for NATO?  I think not.  And the problem that's going to

 3     occur and it's going to occur very, very rapidly will be that there will

 4     be a rise of impunity, because there will be a recognition that there was

 5     not equal treatment under the law, because certain states or certain

 6     people we prosecuted and others will not.  The more powerful will not.

 7     And if there's any doubt about what the view is, what's being pedalled

 8     right now, I suggest to you that we listen to the following and the

 9     following comes from a conference on the 20th of August, 2012.

10                           [Video-clip played]

11              "Moderator:  For students to take.  So the next question is what

12     was the most important legal precedent set by your Tribunal this year and

13     explain why and what you think the precedent means for the greater

14     development of international criminal law.  We'll begin again with Serge.

15              "Serge Brammertz:  Thank you.  I would like to say a few words

16     about the Perisic judgement from September last year.  Perisic, he was

17     the Chief of Staff of the Yugoslav army, and as such providing logistical

18     support to the Serbian Army in Bosnia.  So he was prosecuted for aiding

19     and abetting crimes committed in -- on the territory of Bosnia, crimes

20     for which many people have been convicted already in the past by the

21     Tribunal.  The Trial Chamber has considered him and found him guilty for

22     aiding and abetting those crimes, a number of crimes, murder, inhumane

23     acts, persecution, attacks on civilians, aiding and abetting.  Those

24     crimes committed as said by the army in Bosnia.  He was, however,

25     acquitted for aiding and abetting the crime of extermination in

Page 80

 1     Srebrenica because the Trial Chamber was of the opinion that the mens rea

 2     was not there at that level, that he was fully aware there was a policy

 3     of committing crimes but not to the level of extermination or genocide.

 4     He was also convicted for -- as a superior for having failed to punish

 5     those responsible for crimes committed by the shelling of Sarajevo.  It

 6     was an important judgement.  Twenty-seven years was the sentence.  Why is

 7     it important?  Because it is partially precedent, I think so, which shows

 8     that providing assistance to a party in the conflict, by knowing that

 9     this party is implementing a policy in which crimes are committed, that

10     this person can be prosecuted for aiding and abetting crimes, and we

11     speak here about logistical support in the sense of paying salaries out

12     of Belgrade, providing fuel for -- for tanks, by providing training, and

13     we're even not speaking about weapon in this -- in this case because the

14     Trial Chamber was of the opinion that the evidence was -- was clear that

15     also weapon had been provided by the Chief of Staff of people under a

16     specific responsibility, but that there was no factual link established

17     during the trial between the weapons which had been delivered and the

18     crimes committed in a number of municipalities.  So I think it is an

19    important development in this sense that aiding and abetting is receiving,

20     I think, a larger interpretation.  Of course, we have to wait for --

21    for an appeals decision but I think it's a quite interesting development."

22             MR. GUY-SMITH:  Following along with what Mr. Brammertz the

23     Prosecutor said and going back to your hypothetical, Your Honour, we'll

24     have the following situation: None of the weapons whatsoever are supplied

25     by country A.  They supply everything else.  Same fact pattern. Country A

Page 81

 1     is guilty of aiding and abetting.  Without a doubt.  Salaries, fuel.

 2             Now, the fact of the matter is here, because the case is, and I

 3     return to this, a circumstantial case against Mr. Perisic, obviously the

 4     only reasonable inference to be drawn is -- is what's necessary for

 5     purposes of the finding of guilt.  And I said that badly, and I think you

 6     know exactly what I meant.  There can only be one inference, and it can

 7     be only the reasonable inference, and here there are alternable

 8     reasonable inferences, and I'll cite you to the record because in the

 9     record it is very clear with regard to the issue of fuel which

10     Mr. Brammertz talks about at paragraphs 168, 169, 170, there's clear

11     indication that the VRS was getting fuel from other places.  With regard

12     to the issue of salaries was discussed beforehand.  VRS members, the core

13     VRS members, stayed when they weren't being paid.  They didn't leave.

14     They continued to remain active without the benefit of those salaries.

15             So if you don't have salaries and you don't have fuel as -- as

16     being attributed to General Perisic, what you really are left with is

17     what I said at the -- at the end of my first presentation, which is you

18     have speculation.  You may not like the way it feels, you may think that

19     maybe something should be different, but that's not what we do in a court

20     of law.  In a court of law is we prove beyond a reasonable doubt by facts

21     not by speculation.  And the Prosecution in effect in their argument has

22     conceded that the case against General Perisic was not proved.

23             I despise war.  I do not believe there is an individual in this

24     courtroom that likes it, but the fact of the matter is wars are waged and

25     horrible things occur.  And increasingly with the way the world is


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 1     developing, we have knowledge of those horrible things occurring.

 2             Now, if this court wishes to make the determination that war

 3     should cease, and I'm not talking about the crime of aggression, but that

 4     war should be criminalised, then do so.  Then do so.  But please,

 5     remember, that when he was a general, when he was supporting his country,

 6     when he was concerned about doing his job, that was not the law.

 7             General Perisic should be acquitted of all counts.

 8        JUDGE MERON:  Thank you, Mr. Guy-Smith.  I take it the Defence has

 9     completed its presentation, and I would ask Mr. Perisic whether he would

10     like to use his ten minutes to make a personal statement.  I see the

11     answer has already been provided.  So, Mr. Perisic, you have ten minutes.

12             THE APPELLANT: [Interpretation] Yes, I do wish to do so.

13             Your Honours, thanks to you, this is my last opportunity to

14     address you.  I was pondering what could I say to you out of the scope of

15     the Defence case presented that would enable you to additionally assess

16     me as a person and as a general who performed certain duties.  When this

17     trial started on the 3rd of October, 2008, I addressed the Trial Chamber,

18     and inter alia I said and I quote:

19     "I deeply regret the victims of crimes committed in the territory of the

20     former Yugoslavia, and I sincerely sympathise with their families. Any

21     loss of life is an irreparable loss for society and a life taken through

22     crime is the worst of all losses.  I believe that all those who committed

23     crimes will be prosecuted and appropriately punished.  I wish that war

24   crimes will never be repeated again. As a professional officer, I hate war,

25   because I'm aware that any war, particularly the ethnic, religious, and

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 1   civil war that took place in the territory of Yugoslavia was something that

 2   was the worst thing that could happen to all the peoples of the region."

 3             This is my deep conviction, and that's why I wanted to repeat it.

 4             I believe that in this case you are facing numerous challenges

 5     not only with respect to my responsibility but also to the fairness of

 6     the sentence pronounced, the sentence of 27 years' of imprisonment and

 7     the impact that it has on the credibility of this court.  I'm not a

 8     lawyer.  I never had a desire or the need to engage in law, but

 9     nevertheless, I can conclude that the judgement and the verdict does not

10     reflect what I heard in the course of this trial.

11             During the 40 years in military, I could not but develop deep

12     respect for the law and its significance.  The experience that I gained

13     in the military makes it even more difficult for me to understand the

14     judgement.  I cannot understand the decision made by the majority of the

15     Trial Chamber, and therefore I'm asking how can something be established

16     beyond a reasonable doubt if the Presiding Judge has doubts?  By sheer

17     logic, something like that is untenable, because it is impossible.

18             I am a Serb by ethnicity.  I am a professional soldier who served

19     throughout Yugoslavia during his career.  I was the chief of the

20     VJ General Staff during a long period that encompassed some troubled

21     years of the conflict.  I had been told that due to my nationality and

22     the position that I held, it would be nearly impossible to expect that my

23     trial was going to be objective, unbiased, free of prejudices, and views

24     taken in advance.  Despite of that, immediately upon the receipt of the

25     indictment, I publicly declared my trust in this court, which was carried

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 1     by the media and which was admitted into evidence as part of the Defence

 2     case.  I came to the Tribunal voluntarily two days before the indictment

 3     was published, which is a unique case of the respect for the Tribunal.

 4             In spite of everything negative that has been happening to me to

 5     this will date I sincerely hope that you are above this and that you are

 6     going to judge me objectively and impartially.

 7     My case is unique in the world.  Never before was a chief of the General

 8     Staff of an army indicted and convicted for crimes that were committed

 9     by members of another army in another country.  You are the Judges who

10     are going to render a decision in accordance with your conscience and

11     your sense for justice, but you have to do some soul searching if the

12     decision that you make should have far reaching consequences to any Chief

13     of General Staff of any army including NATO and other alliances as well

14     as the policies pursued by other countries that are assisting wars

15     currently being prosecuted in Afghanistan, Libya, Syria, Sudan, Yemen and

16     elsewhere where crimes were committed and are still being committed.

17     My direct superior, the president of the FRY and the President of the

18     Supreme Defence Council, Zoran Lilic, who issued orders to me to provide

19     assistance to the VRA and the SVK was neither indicted nor convicted.

20             General Celeketic, for whom the Court has established that he was

21     responsible for the crimes resulting from the shelling of Zagreb was

22     neither indicted nor convicted.  Instead, I am convicted for his crimes.

23             You know very well that the decision to provide assistance to the

24     VRS and SVK was taken as a political and state decision long before I was

25     assigned to the position of the Chief of General Staff of the VJ.

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 1             As chief of the General Staff I participated in the decision

 2     taken by the SDC and the government of the FRY which pertained to the

 3     assistance in waging a war not for the commission of crimes as concluded

 4     by the majority.  Your Honours, I defended my state and its citizens

 5     professionally and honourably from being pulled into the war.  I proposed

 6     and implemented certain measures in a timely and responsible manner

 7     pursuant to the decisions of the Supreme Defence Council for the purpose

 8     of preventing the spill-out of war from Croatia and Bosnia-Herzegovina to

 9     the territory of the FRY.  Before taking over as Chief of General Staff,

10     the FRY and the SFRY before it were in war -- were at war with Croatia

11     and Bosnia-Herzegovina.  And after I was replaced by Chief of the

12     General Staff the FRY waged war with NATO and the Kosovo Liberation Army.

13     I'm proud that the FRY and its army while I was Chief of the

14     General Staff did not participate in war for more than 50 years.  Every

15     officer, especially a general, has the duty to envisage and foresee the

16     developments in the environment and their consequences on the security of

17     its area of responsibility and to propose and take preventive measures

18     for its protection.  In my case, that area of responsibility was the

19     Federal Republic of Yugoslavia.

20             There is nothing pleasant about war for a normal person.  Very

21     often there is no choice, and even if there is some, every activity leads

22     to grave consequences.  This is well known to all armies, to all state

23     policies, and despite everything, however hard and distasteful it sounds,

24     the world did not prohibit the waging of war or rendering assistance to

25     others at war.  Essentially everyone in this courtroom, everyone who

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 1     follows these proceedings and millions of others are fully aware that

 2     assistance to the waging of war is given every day depending on the

 3     interests and policies of various states.

 4             For example, France and the US were involved in armed conflicts

 5     and extended support to forces in conflict thousands of kilometres away

 6     from their territories in order to protect their own interests.  They did

 7     not have to suffer any consequences for it.

 8             This is quite different from the situation I was in, because

 9     assistance to Republika Srpska and its army and the Republic of Serbian

10     Krajina and its army was extended in order to protect the territory of

11     our own state, of my own state, the FRY, from the conflict that were

12     taking place at its footstep.

13             What would you have expected me to do as Chief of General Staff

14     of the VJ?  What did the majority of the Trial Chamber which convicted me

15     expected me to do as Chief of General Staff of the VJ when there was a

16     war raging around us and threatening to spill over into the FRY?

17             As a professional soldier heading a military structure that

18     implemented the decisions of the SDC and the FRY government, my actions

19     during my entire military service, including the period for which I was

20     indicted, were aimed at preventing the expansion of war and based on

21     domestic and international law.

22             I express my deep regret for all the victims of the conflict in

23     the former Yugoslavia.  I feel for the pain and suffering of all the

24     citizens of the states where there is a war going on.  I would be

25     happiest if all wars stopped in the world this moment, but it seems that

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 1     despite my wishes, this is not going to happen.

 2             If the majority of the Trial Chamber believed that with my

 3     conviction all wars would stop, they should have said so, but they noted

 4     instead that although war results in devastation and suffering, it is not

 5     a crime, but it still convicted me very dramatically for it.

 6            Your Honours, while Judge Moloto, the Presiding Judge of the Trial

 7     Chamber, analysing the situation in which I was believed that I should go

 8     home, two other Judges decided that I should be in prison for 27 years.

 9     Something like this is hard not only to understand but to live with. Does

10    it not contain in itself the confirmation of the existence of a reasonable

11     doubt?  I believe that you, Your Honours, will repair this injustice.

12             Thank you for allowing me to address you and your attention.

13             JUDGE MERON:  Thank you, Mr. Perisic for your personal statement.

14             Before we conclude, I would like to thank the parties for their

15     arguments today and for their significant preparatory work over the

16     course of this appeal.  I with like to thank my colleagues on the Bench,

17     but we are most extremely grateful for the hard work and dedication of

18     the interpreters and translators, the court reporters, the staff of court

19    management support services, and the information technology support teams.

20    The high quality of their work allows us to proceed with our cases fairly

21   and expeditiously, and this would not be possible without their commitment.

22             The hearing is now concluded, and the judgement of the

23     Appeals Chamber will be delivered in due course.

24                           --- Whereupon the Appeals Hearing adjourned

25                           at 12.27 a.m.