1 Tuesday, 30 August 2005

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 9.07 a.m.

5 JUDGE LIU: Call the case please, Mr. Court Deputy.

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

7 IT-01-48-T, the Prosecutor versus Sefer Halilovic.

8 JUDGE LIU: Thank you.

9 For the sake of the record, may we have the appearances, please.

10 For the Prosecution.

11 THE WITNESS: Yes, good morning, Your Honour. Phillip Weiner for

12 the Prosecution, with Sureta Chana, attorney David Re, and our trial

13 manager, Ana Vrljic.

14 JUDGE LIU: Thank you very much. And for the Defence.

15 MR. MORRISSEY: Yes, Your Honour. Peter Morrissey, appearing for

16 Mr. Halilovic, with co-counsel, Mr. Mettraux, and our legal assistant,

17 Mr. Cengic present in court.

18 JUDGE LIU: Thank you.

19 Mr. Halilovic, can you hear the proceedings in a language that you

20 understand?

21 THE ACCUSED: [Interpretation] I do, Your Honour.

22 JUDGE LIU: Thank you. How was your stay in Sarajevo during your

23 provisional release?

24 THE ACCUSED: [Interpretation] It was very good and very useful,

25 owing to you, Your Honours.

1 JUDGE LIU: Thank you. You may sit down, please.

2 Well, the Trial Chamber notes that the parties filed their final

3 trial briefs on the 25th August. Following the motion to postpone closing

4 arguments for one extra day filed by the Prosecution on the 26th August,

5 the closing arguments were postponed for one day until today, because the

6 Trial Chamber granted the motion in order to allow the parties additional

7 time to prepare their response to opposing arguments submitted in the

8 final briefs.

9 At this stage, the Trial Chamber is seized with some motions filed

10 by the parties. There are two of them that we should deal with before the

11 closing arguments. The first one is a Defence notice concerning nature

12 and the scope of the case presented in the Prosecution's final trial

13 brief, filed on the 26th August. In its notice, the Defence alleged that

14 the Prosecution final trial brief goes far beyond the pleadings of the

15 indictment and the requests the Trial Chamber not to allow the Prosecution

16 to go beyond pleadings as they exist in the indictment and to disregard

17 submissions and arguments which go beyond that case. The Prosecution

18 responded with a motion to strike the Defence notice filed on 29th August.

19 The Trial Chamber is also seized of a motion for extension of

20 pages filed by Defence on 25th of August, in which Defence seeks a 50-page

21 extension of its final trial brief. The Prosecution filed a response to

22 the late Defence motion for extension of pages on 26th August and a motion

23 to strike Halilovic's final brief as an abuse of process on the

24 29th August. The Trial Chamber notes that the practice direction on the

25 lengths of briefs and motions provided the Trial Chamber with the flexible

1 mechanism to control the length and the format of filing of the parties.

2 Clause (C)7 of the practice direction provides for the possibility of

3 obtaining an authorisation from the Trial Chamber to exceed the page

4 limits under exceptional circumstances. The Trial Chamber would like to

5 hear the Defence as to the exceptional circumstances that necessitate the

6 oversized filing.

7 Mr. Morrissey.

8 MR. MORRISSEY: Yes. Your Honour, the circumstances essentially

9 are these, that this was an expert case with expert technical matters that

10 had to be determined. But -- and in particular, because it's a command

11 responsibility case, there were significant and very technical issues that

12 arose as a result. The nature of the de jure case against Halilovic, the

13 chains of subordination that existed between Halilovic and various other

14 relevant bodies, the nature of the institution or the organisation which

15 was said to be commanded by Halilovic, and the various indicators of that

16 command are all matters which are amenable to technical analysis by

17 applying military doctrine and by assessing that military doctrine with

18 reference to the evidence of witnesses. The de jure -- just perhaps a few

19 just so we're clear about how it's to be handled.

20 The de jure case of the Prosecutor required analysis of particular

21 meetings and particular orders. The Zenica meeting was pleaded in the

22 indictment as an occasion of appointment. The role of Halilovic's Chief

23 of Staff had to be explained and the powers that that role gave him had to

24 be explained; the details of the order of the 30th of August,

25 Exhibit D146, had to be explained; the implications of the map,

1 Exhibit D131, had to be explained; the relevance and implications of

2 particular orders on which the Prosecution relied, particularly

3 Exhibit D161, the order of 2nd of September by Halilovic to Vahid

4 Karavelic had to be explained; and other orders on which the Prosecution

5 sought to base an inference of effective control had to be explained. All

6 that had to be done in the absence of any expert evidence by the

7 Prosecution, who did not seek to call an expert relevant to those

8 questions, but instead tried to call and failed in succeeding in calling

9 an expert who was going to explain about international humanitarian law,

10 that being the British general, General Ridgway.

11 Because of that, the Defence found it necessary, in order to

12 discharge our duty of due diligence and competence, to provide an

13 extensive analysis of those matters, and that was done in the brief. And

14 for those reasons, we say this falls comfortably within the exceptional

15 circumstances limb of that test on its own.

16 A second reason is because the Defence says that there was a lack

17 of specificity about certain parts of the Prosecution brief, and the

18 Defence says that -- that we had to meet a range of arguments which the

19 Prosecution did not ultimately persist with. In other words, we thought

20 we had to meet arguments which ultimately did not materialise. An example

21 of that is the argument that a prisoner of war at Uzdol was -- it was the

22 subject of a charge, Mr. Slavko Mendic. Now, we prepared that, there's

23 pages about that in the brief. We thought we had to meet that

24 allegation. It turns out we didn't have to meet that allegation, and no

25 one told us we didn't have to meet that allegation; we did a lot of work

1 on that.

2 The Prosecution led evidence from a man called Ramiz Delalic, the

3 second-last Prosecution witness, that Halilovic and Zulfikar Alispago

4 involved themselves in a cover-up, which involved a plan to kill those two

5 young boys. Now, that doesn't feature in their brief, the closing brief.

6 That's an argument that was dropped. But, however, the Defence had to

7 meet that and we did meet it. We spent time on it.

8 The Prosecution during argument alleged there was an operations

9 group. We had to meet that, but you don't find that featuring in the

10 Prosecution brief.

11 The Prosecution have not withdrawn or did not withdraw

12 paragraph 15 of the indictment, the allegation of actual notice by the

13 Prosecution -- by Halilovic. But when you come to the final brief, they

14 did not persist with that allegation. When it comes to the question of

15 the law applicable to the -- to these offences, the Defence spent many

16 pages on that. The Prosecution did not reveal what that applicable law

17 was and they still haven't, even in the brief up to now.

18 The nature of the failure to prevent in Grabovica -- sorry, the

19 failure to punish the crime at Grabovica had changed utterly because now

20 the argument is not that there was no investigation, as previously

21 pleaded, but that the accused did next to nothing. In other words, there

22 was a bad investigation.

23 Further, the Defence had to guess and was unable to guess

24 accurately all of the duties and the failures that the Prosecution was

25 pleading. With respect to the duties and failures that the Prosecution

1 alleges against Halilovic, they're articulated in part Roman numerals VIII

2 of the Prosecution's final brief, and in that section it's evident that a

3 list of things that Halilovic should have done is compiled. That list was

4 not explained earlier on, though some parts are very anticipated in

5 evidence, not all of it is. And so we say that those are the matters

6 which raise the exceptional circumstances limb of this application. It's

7 effectively technical evidence that we had to lead and it's also evidence

8 in anticipation of arguments, the precise nature of which we could not be

9 sure of. That's why we need the extra time and that's the exceptional

10 circumstances.

11 JUDGE LIU: Thank you very much. I believe that some of the

12 arguments you have already put it on the Defence notice concerning the

13 nature and scope of the case. Thank you.

14 Mr. Weiner, do you want to respond?

15 MR. WEINER: Mr. Re will respond, Your Honour.

16 JUDGE LIU: Yes. Mr. Re, please be very short.

17 MR. RE: Yes, I certainly will be, Your Honour.

18 The Prosecution says that although the Defence may well have

19 demonstrated that some reasons may exist to seek in advance in accordance

20 with the practice direction an extension, what they have done in the

21 circumstances is manifestly excessive -- it exceeds anything that could

22 possibly be justified in the circumstances of this case, which as far as

23 we know, apart from the contempt case, is the shortest trial to be heard

24 before this Tribunal and probably will be the shortest trial to be heard

25 before this Tribunal. What they have done, in effect, and if the Trial

1 Chamber accedes, in our respectful submission, to allow the brief to be

2 filed as is is to make a complete mockery of the procedures of the

3 Tribunal, that is, the practice direction itself and the control by the

4 Chambers of proceedings before them.

5 My learned colleague, Mr. Morrissey, has pointed to some things

6 which may well justify seeking an extension for, we would respectfully

7 submit, a small, a short -- we appreciate that 60.000 words or 200 pages

8 is not a great amount of space, depending upon the length and complexity

9 of the proceedings. Had we been asked, had the motion been put on before,

10 our attitude would have been: Well, we don't object to an extension

11 within reason. Now, within reason we would have said would have been

12 maybe 10 to 15 per cent over, given the size and complexity of this

13 particular trial in the context of the practice direction and why it

14 exists.

15 Now, what we have is we have seen basically something which is no

16 more than an attempt to deceive the Trial Chamber. They have, as we've

17 pointed out in our motion, crammed what appears to be about 158.000 words

18 into 275 pages. That is something which is between two and a half and

19 three times the amount or the -- the word limit in the practice direction.

20 Now, saying that this case raises some issues just does not

21 demonstrate exceptional circumstances, especially retrospectively. The

22 submission my colleague made about Mr. Mendes would be laughable if the

23 matter weren't so serious in terms of the wanton disregard of the practice

24 direction of the Tribunal. Looking through the brief, there are three

25 pages specifically devoted to Mr. Mendes, pages 16 to 19. That could not

1 justify 98.000 words in addition of the word limited -- word limit

2 mandated by the practice direction. Nothing could possibly justify that.

3 The issues about the expert are also, in our submission, quite

4 irrelevant. We didn't call an expert because the Defence opposed us

5 calling an expert. The issues -- the expert issues of military law are no

6 more complex in this issue -- in this case than in any other case, and

7 this case is one of the least complex. There is one accused, two crime

8 base incidents, and one count. It just pales in significance with almost

9 every other case that is currently before this Tribunal or has been

10 actually ever heard by this Tribunal.

11 What is of great concern to the Prosecution if the Defence is

12 allowed to get away with this is the methods which have been employed.

13 Not only have they breached the wording of the practice direction, seven

14 specific violations we have pointed out in our motion to strike it, but

15 it's the manner of deception employed to file it and to file almost as an

16 afterthought a one-line glib and meaningless throw-away explanation

17 seeking an extension at the time of filing of the thing. Presented as a

18 fait accomplis to the Trial Chamber it shows the grossest professional

19 disrespect to the Office of the Prosecutor who has to respond to this

20 almost -- or 500-page plus document between Friday morning, midmorning

21 when we received it and Monday, which is yesterday, when we were supposed

22 to respond to it. It showed the grossest disrespect to the Trial Chamber,

23 the grossest disrespect to the Tribunal and the rules of the Tribunal, the

24 grossest professional disrespect to the legal officers in Chambers who

25 have to try and read this massive tome over the weekend to provide Your

1 Honours with advice so Your Honours can hear it this morning. And it's

2 not just the length; it's the way it's been done. The margins have been

3 moved to the side. A special font has been used in the footnotes, so it's

4 gone from 10 to 8 so it's virtually unreadable. And as we have pointed

5 out, there are three particular pages, page 92, for example, contains over

6 1400 words.

7 Now, if the Defence were honest about this, they would have come

8 to Your Honours last week. This didn't come up suddenly. They just

9 didn't suddenly realise that they were two and a half to three times over

10 the word limit. They knew this, which is why the font size has been

11 changed. It's why there are no numbers on the annex at the back. Which

12 is why the index at the front has a different numbering system. It's why

13 it has 254, and they have asked for extra pages to make it like as if they

14 are trying to fit in with what they have instead of the 500-plus pages.

15 Now had they come to the Trial Chamber this time last week with a

16 genuine motion saying, Look, we're in trouble, Your Honours, we need more

17 space, not 10 per cent, not 15 per cent, but 250 to 300 per cent. What

18 would our reaction have been? And more importantly, what would Your

19 Honours' reaction have been? I think everyone knows what the reaction of

20 the Trial Chamber would have been. It probably would have been -- and I'm

21 not second-guessing Your Honours in any way or being disrespectful, but

22 probably to allow in the give and take of this particular trial -- and

23 within the flexibility granted by the practice direction, some leeway, not

24 two and a half times to three times the leeway.

25 What has been filed is basically oppressive. It's oppressive to

1 the other side, it's oppressive to Chambers, and it's oppressive to the

2 Trial Chamber. Now, of course we don't object to the Defence filing a

3 final trial brief, but our submission is in its present form it cannot be

4 accepted, it should be stricken, and they should be made to re-file it in

5 accordance with the practice direction. And if Your Honours are minded to

6 accede to a small variation, we won't object to a small variation. But

7 had we would known about this a week ago, our opposition would have -- it

8 would have given us time to prepare our own brief which raises the issue,

9 of course, of equality of arms. Had we known they wanted so much, why

10 couldn't we come before the Trial Chamber and say, Well, look, the issues

11 are a bit complex we'd like a bit extra as well. It's been done in such a

12 sneaky, deceptive and underhanded way that the Trial Chamber cannot

13 countenance this sort of behaviour by Defence counsel.

14 In my respectful submission it is -- in the Prosecution's

15 respectful submission, it is excessive and it should be stricken.

16 If Your Honours wish me to address the other one, I can, the other

17 motion, or I can come to that later.

18 JUDGE LIU: Very, very briefly. Maybe two or three sentences,

19 because we have received your motion on that issue already.

20 MR. RE: Well, yes, this second motion -- well, if it is in fact a

21 motion. It is called a Defence notice. As we have pointed out, apart

22 from the fact that it raises issues which are res judicata between the

23 parties, that is, namely the issues of pleadings and particulars which we

24 will address in our closing submissions at a later point, it is no more

25 than an attempt to extend the 500-plus pages, in reality, that they have

1 filed by another 14 pages. This time, as you can see, I mean the contrast

2 is quite stark because the font is actually readable on the -- in the

3 footnotes. It only raises additional argument which should have been in

4 the final trial brief in anticipation. Because there is nothing in our

5 final trial brief which was not pleaded in the indictment, not in the --

6 not in the pre-trial brief, not in the opening, and certainly not in

7 evidence. Our final trial brief is based upon the combination of all

8 four, as one would expect, after hearing a trial which has gone for some

9 six months or so. And the reason, we say, this ploy has been employed was

10 because if the Defence were to read on to the record the 14 pages of

11 additional argument, which is probably some 10.000 words or so, it would

12 take them 40 to 45 minutes, the averaging reading time of about three

13 minutes per page, and it would cut into their oral submission time. It is

14 nothing more than yet another ploy to try and gain an unfair, sneaky,

15 underhand advantage over the Prosecution in the argument of the final

16 trial brief. It should be stricken from the record, and if the Defence

17 wish to make these oral arguments, they are quite welcome to do so. And

18 they should use their time and use some discipline in the same way that we

19 have as all other parties in all other matters before the Tribunal

20 should.

21 JUDGE LIU: Thank you very much.

22 [Trial Chamber confers]

23 JUDGE LIU: Well, having considered the arguments presented by

24 both parties in their written and oral submissions, the Trial Chamber

25 grants a 50-page extension of the Defence trial -- final trial brief

1 because the Trial Chamber finds the exceptional circumstances in the

2 present case, in particular the complexity of the evidence presented in

3 the court as well as recent decision rendered by the Appeals Chamber,

4 justifies the extension.

5 However, the Trial Chamber observes that the Defence final brief

6 is not formatted as required by the directive and exceeds the page limits

7 of 200 pages as provided for in the directive by more than 50 pages if

8 formatted as required by the directive. The Trial Chamber therefore

9 requests the Defence to re-file its final trial brief, which must not

10 exceed a 50-page extension and which respects the formatting set out in

11 the directive, in particular in clause (A). The brief shall be re-filed

12 in a redacted version no later than Friday, 2nd of September, without any

13 additions, by deleting, where possible, parts of the draft, such as those

14 of the repetitive nature or lengthy quotations.

15 It is so decided.

16 MR. RE: Your Honour, sorry --

17 JUDGE LIU: As for -- yes.

18 MR. RE: There's just one thing I wanted to clarify and that is

19 the annexes. I didn't address that. Our argument is that 15 pages of

20 annexes are actually part of the brief. Is that encompassed in Your

21 Honours' -- in the Trial Chamber's ruling?

22 JUDGE LIU: I believe everything should be included in the 250

23 pages altogether.

24 As for the Defence notice concerning the nature and scope of the

25 case presented in the Prosecution's final trial brief as well as the

1 motion filed by the Prosecution to strike the Defence notice filed on the

2 29th August, after due consideration of the arguments of both parties, the

3 Trial Chamber first notes its decision on Defence motion for striking out

4 paragraphs in Prosecution pre-trial brief issued on 7th February 2005.

5 The Trial Chamber reiterates, as stated in its decision and during the

6 pre-trial conference, that it will base its finding on what has been

7 pleaded in the indictment. The Trial Chamber further notes that in the

8 Defence notice the Defence submits what it considers to be the

9 Prosecution's case based on the indictment and the Prosecution pre-trial

10 brief. The Trial Chamber finds that those submissions could have been

11 included into the Defence final trial brief or that in any case they can

12 be raised by the Defence during their closing arguments.

13 The Trial Chamber therefore declines to consider the Defence

14 notice. It is so decided.

15 Well, let's come to the closing argument. Mr. Weiner, are you

16 ready to deliver it?

17 MR. WEINER: Yes, Your Honour. Ms. Chana will start. The three

18 counsel will each argue. Ms. Chana will go first, then I will argue, then

19 Attorney Re will argue. Thank you.

20 JUDGE LIU: I have to remind you that you have three and a half

21 hours to deliver it, no matter how do you divide your labour in your team,

22 that's your matter.

23 MR. WEINER: We divided it with a scalpel, with precision, and we

24 will stick to the three and a half hours, Your Honour. Thank you.

25 JUDGE LIU: Well, the earlier, the better.

1 Yes, Ms. Chana.

2 MS. CHANA: May it please Your Honours.

3 The Prosecution's closing arguments are set out in the

4 Prosecution's final trial brief. And it is of course unnecessary for me

5 to repeat all of these arguments orally. Our purpose today, Your Honours,

6 is to give an oral response to the arguments contained in the Defence

7 final trial brief. Having said that, it has become clear to us that in

8 the time available for oral arguments today, that we will really not be --

9 it will not be possible for us to even address all the arguments that have

10 been raised in the Defence closing brief.

11 Your Honours, we've just discussed the brief. Your Honours have

12 already ruled on the motion. It has contained some extremely dense

13 footnotes, and my eyes, which were not as young as they were, have found

14 it very difficult to read them. But nevertheless, by the standards of

15 this international criminal tribunal, this is really what we considered a

16 smallish-to-medium case. And therefore, the need for such a long trial

17 brief is, in those circumstances, difficult to understand.

18 In our respectful submission, Your Honours, the Defence brief is a

19 case of not seeing the wood through the trees. It is of such great length

20 because it sets out a detailed description of each branch of each tree but

21 fails to describe the forest as a whole.

22 In oral arguments today, Your Honours, I propose to deal with the

23 broader picture. Now, the broader picture begins with the question as to

24 why this Prosecution was brought. It was brought because innocent

25 civilians, over 63 in number, were killed by members of the armed forces

1 of the ABiH, in violation of the most basic principles of international

2 humanitarian law. The youngest victim was a girl called Mladenka Zadro, a

3 girl a few weeks shy of her fourth birthday. The oldest victim is a Marko

4 Maric, an 87-year-old man. This is why we are here today. This

5 prosecution is about justice for victims.

6 When we descend into the detailed minutiae of the evidence, we

7 might argue about whether it has been proved beyond a reasonable doubt

8 that a particular victim was in fact killed by members of the ABiH, or

9 whether the killer really knew of their status as innocent victims. The

10 Defence has argued at some length, and my colleague Mr. Weiner will be

11 addressing the crime base evidence a little later. But, at the outset,

12 one point must be emphasised, which is this: Even if the Trial Chamber

13 were to accept that the Prosecution case has not been proved in relation

14 to every single one of the alleged victims, it is clear that certain

15 innocent civilians were killed by the soldiers of the ABiH. I need only

16 refer, for instance, to paragraph 110 of the Defence brief, where it is

17 conceded that the Prosecution has proved beyond a reasonable doubt that

18 six of the victims in Grabovica were murdered by members of the ABiH, and

19 that in respect of at least four victims, members of the 9th Motorised

20 Brigade took part in the killing.

21 As is indicated in paragraph 96 of the Defence brief, these

22 victims that the Defence has conceded included an old couple, Pero Maric

23 and his wife, Dragica. Pero was shot in the head outside his home in the

24 presence of ABiH soldiers, who were eating and drinking. His invalid

25 wife, who was inside the home at the time, knew that he had been shot and

1 lay in bed for hours later, hearing the soldiers drinking and eating

2 outside her house, knowing that the soldiers would eventually come to kill

3 her, which they did. The incident cannot be characterised as anything

4 other than an atrocity of war. I do not understand the Defence to in any

5 way argue to the contrary. It was to punish this type of wartime

6 atrocity, to prevent their recurrence in the future, to bring justice to

7 the memory of the victims that the Tribunal was set up.

8 In paragraph 80, the Defence brief asserts that, and I

9 quote: "The identification of the alleged perpetrators is therefore of

10 critical importance in establishing the accused's effective control over

11 that person."

12 A proposition to which of course we agree. Yet remarkably in

13 paragraph 81, the Defence allege a failure to identify the perpetrators

14 and go on to allege it could either amount to or be relevant to an abuse

15 of process -- application. This is particularly difficult to understand,

16 given that the Defence has conceded the death of at least six innocent

17 civilians at the hands of the ABiH, and at least four of them at the hands

18 of the 9th Brigade. This allegation against the Prosecution might in

19 itself be regarded as an abuse of process.

20 The innuendo is therefore clear, Your Honours, that killing of

21 even these conceded murders appears to the Defence as simply to be not

22 enough. This clearly cannot be said to be a credible and responsible

23 argument on the part of the Defence. The Prosecution would like to make

24 it clear that the death of even one civilian is one too many, attracts

25 criminal responsibility, and is definitely a war crime. We cannot be

1 lulled into this kind of moral anaesthesia.

2 Your Honours, this is solely a command responsibility case brought

3 under Article 7(3) of the Statute. The simple issues before the Trial

4 Chamber are whether the accused was the commander of the soldiers and had

5 effective control over the perpetrators who committed these crimes. This

6 is the sole test, and both the Defence and the Prosecution are happily in

7 agreement in this regard. Excuse me, Your Honours.

8 And if he was, whether or not the accused took the necessary steps

9 to prevent the commission of these crimes or to punish the perpetrators

10 thereof. The evidence to prove this can either be direct or

11 circumstantial. Again, both parties are in agreement here.

12 Despite the simplicity of these issues, the Defence brief raises

13 all sorts of arguments which are of no apparent relevance and also of no

14 possible merit. Again, time constraints prevent me from identifying them

15 all, but if I can begin at the first paragraph of the Defence brief to

16 give a few examples.

17 The very first paragraph of the Defence brief complains that the

18 Prosecution did not plead in the indictment whether the armed conflict in

19 question was international or non-international in character. This is of

20 course immaterial. The accused is charged with a single count of murder

21 under Common Article 3. It is now well-established law -- case law of the

22 Tribunal -- it is trite law that the Common Article 3 applies to both

23 international and non-international armed conflicts. So there is no need

24 for Your Honours or for us, indeed, to specify this in this indictment.

25 Your Honours can look forward to Mr. Re, who will be expounding on this

1 aspect of the law later on in his arguments.

2 What is more -- even more difficult to understand is how the

3 Defence can plead in a final trial brief that the indictment was

4 inadequately pleaded. Indeed in the very first footnote the Defence

5 argues that the rights of the accused have been violated by this

6 inadequate pleading. However, as the footnote goes on to acknowledge, the

7 Trial Chamber has already ruled on the Defence motion raising these very

8 issues, as Your Honours ruled this morning as well. So therefore, it has

9 definitely been dealt with, and there is no basis for the Defence to raise

10 it again at this stage.

11 In paragraphs 2 and 3 of the Defence brief then go on to suggest

12 that the Prosecution has not proved there was an armed conflict at the

13 relevant place and time. This argument is particularly difficult to

14 understand, and to that end I refer to the April 22nd motion on agreed

15 facts filed by the parties for the fact there was an armed conflict is

16 abundantly obvious from those facts. The suggestion that there may have

17 been no armed conflict also seems directly contrary to other submissions

18 in the Defence brief; for instance, paragraph 218 which states

19 that: "There has been combat activity in the Prozor, Jablanica, and

20 Mostar regions for months."

21 Even if there was, for instance, no fighting actually occurring in

22 Grabovica at the time of the crimes, this does not mean then there was no

23 armed conflict in the area at the time. The soldiers who committed the

24 crime were clearly engaged in armed conflict, even if they were not

25 fighting the enemy at that particular moment. In Uzdol, of course, there

1 was an armed conflict which has not been seriously denied by the Defence

2 in their brief.

3 Paragraphs 7 and 8 of the Defence brief and the accompanying

4 footnote then makes rather -- makes a rather extraordinary submission.

5 Here the Defence argues that the underlying crimes might have been random

6 or isolated acts, in which case they would not qualify as war crimes.

7 This submission is of course contrary to the most basic principles of

8 international criminal law. An isolated or random act might not qualify

9 as a crime against humanity or genocide, but it can certainly be a war

10 crime. If a soldier on his own or her own initiative kills a single

11 protected person, that is a war crime and the soldier's superior has the

12 responsibility to punish for it.

13 At paragraph 46, the Defence asks the Chamber to consider the

14 civilians in Uzdol as levee en masse. While it is the correct legal

15 position that when civilians spontaneously take up arms in defence of

16 invading troops, they are said to constitute a levee en masse and can be

17 regarded as combatants for the purposes of the laws of war, but this is

18 only so if the armed forces have not been formed or have not asserted

19 their military authority over the area. The Defence brief makes numerous

20 references to the HVO and their military presence in Uzdol. The law is

21 very clear that there cannot be civilians and soldiers fighting together

22 and then assert the civilian side is levee en masse. This is not the

23 correct position in law.

24 Another example, Your Honour, is at paragraph 331 there is yet

25 another extraordinary claim in that the Prosecution case is a de jure case

1 only, and the issues of effective control must be limited to the scenario

2 where the Trial Chamber makes a finding that Halilovic was the de jure

3 commander of the 9th and 10th Brigades. This is an incorrect position, as

4 the Prosecution case has always been that the accused demonstrated both

5 de facto and de jure authority. The indictment at paragraph 39 clearly

6 states: "Sefer Halilovic," and I quote, "demonstrated both formal de jure

7 and de facto power, by his command and control in military matters in a

8 matter -- in a manner consistent with the exercise of superior authority,

9 by issuing orders, instructions, and directives to the units, by ensuring

10 the implementation of these orders, instructions, and directives, and

11 bearing full responsibility for their implementation."

12 In fact all our pleadings, pre-trial brief, opening statement, we

13 have consistently maintained this position.

14 A huge section of the Defence brief is similarly devoted to the

15 duties of a Chief of Staff, which are not denied and they are correctly

16 stated, but it has never been our case that the accused was in Herzegovina

17 within his duties and capacity as Chief of Staff. The accused went to

18 Herzegovina to command Operation Neretva by the authority of Commander

19 Delic. That is our position.

20 Your Honours, time does not permit me to deal with the numerous

21 other immaterial and/or erroneous arguments advanced by the Defence in

22 their final trial brief.

23 The Defence brief also complains -- and much has been made of the

24 fact that the Prosecution did not call certain witnesses, yet called other

25 witnesses. It is called prosecutorial discretion. For instance, they

1 complain that commander Rasim Delic, who was, as they put it, "renounced

2 to be called." Clearly, the Prosecution cannot call every witness they

3 interviewed. There is a clear policy at this Tribunal to shorten cases, a

4 policy, I may add, which was actively encouraged by the Chamber, that the

5 Prosecution only call witnesses or as many witnesses as they need to prove

6 the case for the Prosecution to the required standard of proof, which is

7 what the Prosecution did.

8 Your Honours, the Defence has made much of this, this aspect of us

9 not calling witnesses, but it must not be lost that the Defence had full

10 disclosure of all the witness statements, and they themselves were at

11 liberty to call any witnesses they felt would further their case from the

12 Prosecution witnesses we did not call. They could have subpoenaed them or

13 asked the Chamber to do so.

14 Having not done so, the Defence suggests that this failure to call

15 every witness on the initial witness list should somehow result in

16 inferences being drawn that are favourable to the accused. This may be

17 convenient for the Defence, but we invite this Honourable Chamber not to

18 draw such positive inferences, given our Prosecution witness list. We

19 also point out that the Defence equally did not call the witnesses they

20 had on their witness list. The Defence had every opportunity to present

21 their case and call any witnesses they desired. They were on notice as to

22 who they were.

23 Your Honours, the Defence also make much of the fact that Ramiz

24 Delalic, the deputy commander of the 9th Brigade, was called to give

25 evidence. Your Honour, it's important to note the only reason the

1 Prosecution was -- had brought Ramiz Delalic to testify here is because

2 the accused himself took him to Herzegovina for Operation Neretva.

3 It is not possible to address all these arguments, nor is it even

4 possible to respond orally to each of the Defence arguments. Your

5 Honours, to a significant degree the final trial brief of the parties must

6 be left to speak for themselves; however, in the time available for oral

7 argument today, a few salient points can be emphasised.

8 The first point relates to the nature of the Army of Bosnia and

9 Herzegovina at the relevant time. I think it's fairly common ground

10 between the Prosecution and the Defence that it was a fairly disorganised

11 and undisciplined army at the time. When the conflict broke out in the

12 former Yugoslavia, Bosnian Muslims were originally together with the

13 Bosnian Croats fighting against the Bosnian Serbs. Bosnian Muslims at

14 that stage were often fighting under the auspices of the HVO, the Bosnian

15 Croat army. The ABiH was only formed in late 1992 out of units of the

16 Territorial Defence, the TO. At the times material to the indictment, it

17 was still a force, if you will forgive the use of a vernacular expression,

18 held together by spit. The Defence has at some length highlighted its

19 problems of discipline, coordination, and resources.

20 The Defence goes so far as to suggest that in view of this

21 disorganisation and lack of discipline within the ABiH forces, there was

22 not even an armed conflict in Bosnia and Herzegovina within the legal

23 definition of that expression. The Defence suggest at paragraph 3 of

24 their brief that there were at the most "localised hostilities or

25 skirmishes." The Prosecution submits that this Defence submission cannot

1 be seriously entertained. Despite all the problems of coordination and

2 discipline in the ABiH, there can be no doubt at the time that it was a

3 single army. It had laws which regulated the conduct of the army, it had

4 a supreme command, it had six corps, it had the military security, it had

5 weaponry and formal structures for discipline. It had a status as an army

6 within the national and international arenas.

7 As to the definition of an armed conflict, the Appeals Chamber

8 said in the Tadic jurisdiction appeal that "an armed conflict exists where

9 there is a resort to armed force between states or protracted armed

10 violence between governmental authorities and organised armed groups or

11 between such groups within a state."

12 We submit that there can be no doubt on the evidence that the ABiH

13 was either a governmental authority or an organised armed group within the

14 meaning of that definition, and in numerous other cases before the

15 Tribunal concerning crimes committed within the same time frame, it has

16 been held and accepted that the ABiH satisfies this definition.

17 However, another theme of the Defence appears to be is to suggest

18 that because of the disorganisation and chaos within the ABiH, no one was

19 in effective control. Or at least, the suggestion is that the accused was

20 not in effective control. The Prosecution submits that the Defence

21 argument puts in issue a very important principle of international

22 humanitarian law the very purpose of the legal principle of superior

23 responsibility under Article 7(3) is to ensure that discipline will be

24 maintained over members of the armed forces by their superiors. Armed

25 forces have a duty to remain disciplined forces. The very purpose of

1 international humanitarian law would be defeated if superiors would say

2 that because their armed force was too disorganised and undisciplined,

3 they are absolved of any responsibility for taking steps to ensure that

4 crimes by their subordinates are prevented or punished under Article 7(3).

5 Disorganised and undisciplined armies is a very thing that the principle

6 of superior responsibility is designed to prevent.

7 As I have said, Your Honours, it must be accepted that the ABiH

8 fell within the definition of an organised armed group, as that expression

9 was used by the Appeals Chamber in the Tadic jurisdiction case. If the

10 ABiH was an organised armed group, there must by definition have been some

11 command structure responsible for commanding the group, upon whom the

12 responsibilities of Article (3) would fall. The issue in this case was

13 whether the accused fell within that command structure, and if so, whether

14 or not he discharged the responsibilities that 7(3) imposed upon him.

15 Ultimately, the Defence final trial brief acknowledge --

16 acknowledges that this is the issue. Paragraph 268 to 276 of the Defence

17 brief suggests that it was Commander Delic who was in command of

18 Operation Neretva 93. So the Defence is not really seriously denying that

19 the chain of command over the operation extended to the top of the ABiH

20 military hierarchy. The question is whether the accused was part of that

21 chain.

22 As to the question of who was responsible -- who the responsible

23 commanders were, for the ABiH forces who committed the crimes in this

24 case, it has been acknowledged in the case law of the Tribunal that the

25 case of disorganised and newly formed forces, it can be sometimes

1 difficult to tell. As the Trial Chamber said in the Celebici case with

2 reference to the Bosnian Muslim forces at a somewhat earlier time: "The

3 requirement of the existence of a superior subordinate relationship is

4 particularly problematic in situations such as that of the former

5 Yugoslavia during the period relevant to the present case - situations

6 where previously existing formal structures have broken down and where,

7 during an interim period, the new, possibly improvised, control and

8 command structures, may be ambiguous and ill-defined ... Persons

9 effectively in command of such more informal structures, with power to

10 prevent and punish the crimes of persons who are in fact under their

11 control, may under certain circumstances be held responsible for their

12 failure to do so."

13 In such circumstances where an armed forces is in a state of some

14 disorganisation, the distinction between de jure and de facto authority

15 may become blurred. It may not be clear what are the proper and

16 authorised procedures for conferring command authority on a particular

17 person. Accordingly, where a person has in fact been given authority to

18 command, it may not be clear whether the authority is a legally and duly

19 conferred de jure authority or whether it is a de facto authority.

20 However, as the case law of the Tribunal indicates, it is not necessary to

21 draw fine distinctions or undertake a close examination of military

22 procedures for conferring command authority, since the case law of the

23 Tribunal establishes firmly that superior responsibility, excuse me, under

24 Article 7(3) attaches to both de jure and de facto superiors.

25 The failure to recognise this is, in the Prosecution's submission,

1 a major flaw in the Defence final trial brief. The Defence brief gives a

2 separate treatment to the issue of de jure responsibility and to de facto

3 responsibility. The Defence final brief deals with the issue of de jure

4 authority in paragraphs 197 to 313. In these paragraphs, the Defence

5 rely -- rely to a heavy degree on formal structures, formal military

6 doctrines, and formal procedures that, according to the Defence, would

7 have had to have been followed for de jure authority to have been

8 conferred if the ABiH was operating by the book. There is a lengthy

9 dissection in minute detail of the Delic order of 30th August 1993 and the

10 meaning of the word "rukovodjenje" in B/C/S in a military context. There

11 are arguments - I refer, for instance, at paragraphs 244 and 252 of the

12 Defence brief - to the effect that the accused could only have been

13 appointed commander by a specific order. At paragraphs 251 to 254 of the

14 Defence brief there is discussion of the fact that the Prosecution has not

15 established that an operation group was indeed in place at the time.

16 However, Your Honours, all this means very little in a situation where the

17 ABiH was not operating by the book or in strict compliance, as it were,

18 with formal military procedures.

19 The situation is described in paragraph 218 of the Defence brief

20 in the words of the Defence. It says: "The ABiH had an immature command

21 structure and few trained officers." As the Defence says in the same

22 paragraph, the ABiH was uncoordinated, there was a gathering crisis in the

23 areas of the 4th and 6th Corps, and the situation in Mostar was desperate.

24 As I described it earlier, the ABiH was at that time an armed forces

25 loosely held together. So in determining whether command authority had or

1 had not been conferred on a given person in a such situation, the question

2 can hardly be answered by reference to formal military doctrines and

3 procedures, as the Defence would have us believe. Rather, it is the

4 reality of the case which must be taken into account rather than abstract

5 military theory which needs to be addressed. The evidence which we

6 adduced at trial refers to the reality on the ground at the time of

7 Operation Neretva and not some academic military theory.

8 The Defence brief then finally goes to consider the issue of

9 de facto authority at paragraphs 314 to 400. The Defence arguments are

10 very lengthy but are neatly summarised in paragraph 314 of their brief.

11 Here it is stated that the accused had no de facto command authority

12 because of the poor state of command and control in the ABiH, the pattern

13 of hostility to the accused, the insubordinate nature of the 9th Brigade

14 troops, and the lack of a clear and comprehensible chain of command in the

15 combat region. Yet, they conveniently rely on this non-existent chain of

16 command going directly up to Delic -- Commander Delic, excuse me.

17 While it has to be said that each of these four matters referred

18 to in the Defence brief, if they were valid, would apply equally to

19 de jure authority as much as to he de facto authority. As I have said,

20 the very purpose of the doctrine of superior responsibility is to ensure

21 that armed forces are disciplined. Whether commanders are appointed on a

22 de jure basis or a de facto basis, commanders are commanders, and they

23 have the duty to maintain discipline within their forces, either by

24 preventing the crimes by their subordinates in the first place, or where

25 that is not possible, by punishing them after the event. It would be

1 absurd if it were a defence for a commander to say, I had no duty to

2 maintain discipline because my subordinates were too indisciplined. Yet,

3 the evidence does disclose the accused requested for these very same

4 indisciplined forces to come to Herzegovina for combat operations. He can

5 hardly then be heard to say they were too indisciplined and he had no

6 effective control over them, which appears to be the Defence argument.

7 So therefore, Your Honours, the question is not whether the formal

8 military procedures were or were not followed in conferring command

9 authority on the accused or how well organised and disciplined the ABiH

10 was or was not at the time. The question is simply whether or not the

11 accused was in a position of command authority. The Defence expressly

12 agreed that the existence of a de jure command authority can also be

13 established by inference. This is at the Defence brief paragraph 243.

14 The same is true of de facto authority. At paragraph 165, they correctly

15 state that whether the command authority is de facto or de jure, the test

16 is one of effective control.

17 At paragraphs 186 to 195, the Defence state that effective control

18 is "not the same as appearance thereof" and not the same as "influence."

19 The Prosecution accepts that the mere fact of appearance of command

20 authority and the accused's influence may not of themselves be sufficient

21 to prove command responsibility. However, the Defence has also conceded

22 that the existence of command authority can be proved circumstantially, as

23 Your Honour Liu very wisely advised us during trial, it is built step by

24 step.

25 When looking at the case as a whole, these factors of influence

1 and seniority all go towards proof of his command responsibility by way of

2 circumstantial evidence.

3 The accused, Your Honours, was the most senior man in the area.

4 Salko Gusic, the commander of the 6th Corps, stated, and it's -- I will

5 quote just a short piece of his testimony because it is rather

6 illustrative.

7 "The Chief of Staff of the supreme command, he was a superior

8 officer and we treated him as a superior officer. So it was not just a

9 title, just a post. It carried authority with it, authority which we

10 respected ... I can't say it fully replaced rank because rank carries some

11 other defining elements, but as far as relations in the army went, it

12 fully replaced ranks. When it came to duties, assignments, and so on, the

13 functions -- or rather, the post, such as a chief, assistant, a deputy,

14 and so on, fully replaced ranks ... It means a lot, sir. It means a lot.

15 He was the second man in the army, the second-ranking general in the army.

16 That means a lot. The number-two man. It still means a lot today."

17 He went on to say: "What was the reality on the ground was that

18 General Halilovic was the real authority there and those units there did

19 not need a written order to enable him to engage them."

20 That was the reality on the ground. You cannot look at specific

21 military doctrine, things were not done by the book, it is how it was

22 exercised at the time.

23 Your Honour, Commander Delic was not present in Herzegovina, as he

24 was based in Sarajevo. The background is clear. There was a seat in

25 Sarajevo as well as a seat in Mostar, so everybody was extremely busy.

1 Journalist Hodzic who was shadowing him during the war and who the Defence

2 have agreed is an extremely credible witness stated in his evidence, and I

3 quote, Your Honours: "He," the accused, "turned to Dr. Cibo and myself --

4 or rather, he said to Cibo, 'Cibo, tell Delic that I don't need him here.

5 I'm preparing for the offensive and I don't need him interfering with

6 things here.'"

7 The accused was clearly in charge in Herzegovina and not Delic.

8 The question then there is, Your Honours, whether on all the

9 evidence, the only reasonable inference was the accused had command

10 authority over the perpetrators of the crimes with which he is charged,

11 either de facto or de jure.

12 What does the evidence establish? After the Zenica meeting,

13 senior commanders of the ABiH discuss future combat operations to be

14 undertaken. At some point it was decided to launch Operation Neretva to

15 free the corridor to Mostar. Commander Delic appointed the accused by the

16 August 30th order to lead and command these operations.

17 Your Honour, we'll come to the interpretation in a minute. To

18 that end a forward command post was set up in Jablanica from where this

19 operation was to be commanded. Your Honours, all the evidence is detailed

20 in our Prosecution brief and time does not permit me to go into the

21 evidence in any detail.

22 Your Honours, the 30th August order is but one piece of evidence

23 which has generated a lot of debate and I think we all know it by heart

24 now. When it comes to the August 30th order, which is the Delic order, I

25 raise the query as to how relevant the translation is to effective

1 control. What does "rukovodjenje" mean? We've had many translations.

2 Lead, control. That cannot -- it's but one piece of evidence.

3 Your Honour, what is clear from this order is that the order gave

4 the accused powers to lead the operation -- it certainly gave him orders

5 to issue orders. He only had to consult Delic in case of more drastic

6 proposals and solutions. He asked him, and it's significant when he says,

7 in keeping with his authority, in keeping with the accused's authority, to

8 solve problems in the field by issuing orders and the accused only had to

9 report back to him on the orders that he issued. He did not need to get

10 his permission before. The Prosecution has adduced evidence as to what

11 this order meant to the many witnesses who gave their evidence here, and

12 according to them this order gave Halilovic command authority over

13 Operation Neretva. They considered him to be the commander.

14 Your Honours, Witness Karavelic, he commander of the 1st Corps and

15 a very senior member of the ABiH, and his evidence has been referred to in

16 the Defence brief where it says -- he has often been quoted. He is quoted

17 twice in the Defence brief as saying that he was unable to obey the order

18 of Halilovic of resubordination of troops without prior reference to

19 Delic. But Witness Karavelic stated and clarified that the only reason he

20 asked Delic if he ought to obey the order requesting for the troops to go

21 to Herzegovina was because he was not aware of the 30th August order. He

22 made it very clear in his evidence that if he had known about the order,

23 he would have obeyed the order given by Halilovic without recourse to

24 Commander Delic.

25 Witness Bakir Alispahic equally stated he was told by the accused

1 that he was commanding the military operation in respect of this order.

2 Jasarevic testified that this particular order gave Halilovic the power to

3 issue commands on the spot and they would be obeyed.

4 Your Honour, what was the accused's understanding of this order?

5 Paragraph 258 states that the accused's understanding was that his role

6 was one of coordination. Your Honour, the inspection team report which

7 the accused filed on 20th September is illustrative on this point. I

8 would like P -- D130 to be put on to the ELMO, Your Honour, if we can just

9 have a look at it. Sorry I did not give enough notice for that.

10 This, Your Honour, is the report filed by the inspection team

11 members on 20th September, and it has been signed by the accused. Your

12 Honour, it actually refers, if you look at the first page -- I'm not sure

13 where -- yes.

14 Let's start where it says -- it's strictly confidential, Sarajevo,

15 20th September, 1993. And this actually tells us what the accused

16 understood what that August 30th order meant to him. And -- because it

17 refers to it at the beginning. And it says: "With the approval of

18 29th August, 1993, from the commander of the SVK in his strictly

19 confidential order dated 02/1647-1 dated 30th August, 1993, an expert team

20 commission was established in order to coordinate combat operations and to

21 carry out all other tasks in the zone of responsibility, et cetera."

22 Your Honour, I would take you to the -- it details the people who

23 were meant to be -- form part of this inspection team. It says: "The

24 team went to the field on 29th August 1993 and was on mission until

25 19th September 1993."

1 Your Honour, I will -- to save time, I'll skip it and in the

2 middle of the paragraph where it says why did they go there? "With the

3 aim of coordinating and executing combat operations," the

4 word "executing," "an IKM, forward command post, was set up in Jablanica."

5 Your Honour, it's important to note here that the Defence in their

6 Defence brief at paragraph 264 deny that there was ever an existence of an

7 IKM, and they say that the witnesses who testified to the existence of an

8 IKM in Jablanica were labouring under a mistaken belief. It was the

9 belief obviously shared by the accused because this is the very document

10 that the accused signed as head of the inspection team.

11 So what kind of words do they have there? So it was to execute

12 combat operations. The forward command post was set up in Jablanica where

13 the team planned the operation which covered the wide front from

14 Gornji Vakuf to Mostar. Then in paragraph 1 it says "to estimate the

15 combat readiness of the commands of the unit and to lead combat

16 operations."

17 Your Honour, it's instructive that the Bosnian translation equally

18 says "rukovodjenje," the same as it says here. So whatever the

19 translation which is accepted.

20 Then it -- I'll go to the end of that paragraph where it says: "To

21 implement the planned operation in the Neretva and Vrbas valley."

22 So we have the words "implement the planned operation."

23 Your Honour, this gives us a -- this document gives us a bit of an

24 insight as to how the accused understood his own role in

25 Operation Neretva. These words cannot be explained in a military

1 doctrinal way; it's in the ordinary meanings of the

2 word "lead," "execute."

3 Your Honours, the Prosecution has produced many orders which were

4 issued by the accused to give effect to Operation Neretva, and orders by

5 other commanders engaged in this operation who issued orders based on the

6 accused orders. All these orders are detailed in our Prosecution final

7 brief and the documents speak for themselves. The Defence in their final

8 brief suggest that many of the orders by the accused were not obeyed,

9 which indicates lack of control by the accused. The mere fact that an

10 order is not obeyed is not indicative of a lack of effective control. As

11 long as sanctions exist for this disobedience and a commander had a

12 material to enforce these sanctions, that would be sufficient. The

13 Defence has also tried to suggest that all the orders which were issued by

14 the accused and which were not consistent with his duties and inspection

15 team member, for example, combat orders, resubordination orders, they were

16 all consistent with command, were in fact emergency orders. This is an

17 unconvincing argument, Your Honours, for orders they cannot explain away,

18 and those are considered emergency. Or for other orders, like the Pasalic

19 orders, which clearly resubordinates troops to the accused. The argument

20 there is that these are not genuine documents.

21 Your Honour, in respect of the MUP at paragraph 113 there is the

22 assertion by the Defence that they were -- the accused was not in charge

23 of the MUP forces who took part in combat. The minister, Alispahic, was

24 very clear that although the MUP had a separate chain of command, in

25 combat according to a well-established military doctrine of the doctrine

1 of unifying command, that all troops and battle are under the command of

2 the commander who's commanding the operation. It cannot be held

3 otherwise. It would create havoc on the combat operation.

4 Therefore, Your Honours, on the issue of command responsibility

5 the Prosecution accepts that it has the burden of proving beyond a

6 reasonable doubt that the accused was the superior of the perpetrators of

7 the underlying crimes. However, in determining whether the Prosecution

8 has discharged its burden, it is necessary to look at the evidence as a

9 whole. Each individual item of evidence has been minutely examined, but

10 if an individual item of evidence is viewed in isolation, it may be

11 capable of different interpretations which ought to be disregarded. All

12 the evidence adduced in this case viewed as a whole, the only reasonable

13 inference which can be drawn from this evidence is that the accused was

14 the commander of Operation Neretva and the superior of -- superior of the

15 perpetrators who committed the crimes. And the Prosecution invites the

16 Trial Chamber to so hold.

17 Your Honours, I'll now invite the Court to invite Mr. Weiner to

18 take up the submissions from this time.

19 JUDGE LIU: Thank you very much indeed, but however I believe that

20 it's time for a break. So we'll break for 30 minutes and we'll resume at

21 11.00 sharp, so that will keep Mr. Weiner's presentation intact.

22 --- Recess taken at 10.28 a.m.

23 --- On resuming at 11.02 a.m.

24 JUDGE LIU: Yes, Mr. Weiner, are you ready to deliver --

25 MR. WEINER: Yes, Your Honour.

1 JUDGE LIU: Yes, please.

2 MR. WEINER: Good morning, Your Honours. I will be addressing

3 issues relating to Grabovica and Uzdol. In terms of Grabovica, I will

4 discuss who was killed and by whom.

5 On September 8th, 1993, soldiers from the 9th Motorised Brigade

6 arrived in Grabovica. What was a quiet, peaceful village suddenly

7 changed. Within hours of their arrival there was kidnapping, rape, and

8 murder. In a 24- to 30-hour period most of the villagers disappeared and

9 were later seen either dead or never seen again. The Prosecutor has

10 proven beyond a reasonable doubt the death of 27 of those victims. The

11 Defence as conceded the death of seven victims: The five members of the

12 Zadro family and Pero and Dragica Maric. These seven deaths by themselves

13 are sufficient to establish the charge of murder, but we have proven many

14 more of those deaths; in fact, all 27 alleged have been proven.

15 An examination of the record indicates that in addition to those

16 seven already conceded by the Defence, witnesses saw three more dead

17 bodies. Witness A testified that he saw Joseph Brekalo by his home.

18 Witness C and Katica Miletic testified that they saw Ilka Miletic lying

19 dead along the roadway. Katica Miletic testified that she saw Ivan Mandic

20 dead along the roadway, somewhat down from Ilka Miletic. With regard to

21 this final deceased, Witness C's sister and brother-in-law were standing

22 not far from Ivan Mandic when he was shot and killed by soldiers.

23 Witness C also helped us to facilitate his secret burial. That's proof of

24 ten of the 27 victims being killed.

25 In addition, refugees living in the area saw nine dead bodies.

1 Zulfo saw Marinko and Luca Maric, Martin Maric, Ilka Maric, Ruza Maric.

2 He even tells the police and the military the location of four of those

3 five deceased. Refugee friends of Witness C saw Mara, Andrija and Dragica

4 Dreznjak and Mara Mandic.

5 Why should we believe these refugees, or why should we indicate

6 that this hearsay testimony is reliable? These refugees came practically

7 starved to Grabovica. It was the villagers who fed them. It was the

8 villagers who helped them. It was the villagers who housed them. And

9 these refugees appreciated that and they reciprocated. They warned some

10 of the villagers of impending danger. They ran off to Jablanica to get

11 police assistance. When they villagers were sent to Jablanica, those that

12 survived, the refugees visited them, brought them clothing, secretly

13 buried a victim, which was Ivan Mandic, and also brought those people

14 news. The refugees had no motive to lie to their new friends. Why lie to

15 the villagers about their friends and relatives? Adnan Solakovic believed

16 them. Ahmed Salihamidzic believed them. And based on the corroboration

17 that we have from other witnesses, this Court can rely on their

18 information too.

19 Soldiers also provided information to the refugees and witnesses

20 about certain deaths. They told of the deaths of Luca Brekalo, Pero and

21 Matija Culjak and Anica Pranjic. Why should we believe them? They had no

22 motive to lie about who was killed. Some of the soldiers had befriended

23 the villagers and provided them information. Their information was also

24 mentioned by others, so corroborated. The statements of soldiers were

25 some sort of, if you want to call it, declaration against the army's

1 interest by analogy should carry an indicia of reliability, just like the

2 evidentiary concept of the declaration against interest.

3 That's 23 of the 27 have been seen dead. Of the final four, the

4 proof of the first two is basic and simple circumstantial evidence.

5 Witness B visits Ljuba and Zivko Dreznjak. ABiH soldiers are outside

6 waiting for a third group of soldiers to arrive. The soldiers are

7 speaking to a Muslim refugee and her daughter. The refugee's name is

8 Munevara Rupeza [phoen]. Witness B leaves the Dreznjaks to escort

9 Munevara and her young daughter back home on the other side of the river.

10 As they walk away, a third group of soldiers arrive. Munevara, who spoke

11 with the soldiers, says, Now they're going to kill them all. Witness B

12 then hears shooting from inside the Dreznjak house, and he hears Ljuba

13 Dreznjak scream. Witness B gets away and hides. The Dreznjaks were never

14 seen alive again. Next time that they are seen is when their family

15 identifies their remains at the hospital in Split with the remains of the

16 other -- or some of the other Grabovica victims.

17 It's obvious what happened to those two poor people. In the words

18 of one of the commanders of the Igman Wolves, they went house to house

19 killing.

20 Finally on the evening of September 8 Ivan Saric and Franjo Ravlic

21 were taken from their home and brought to the bridge. They were taken by

22 soldiers. The soldiers that night weren't taking prisoners; they were

23 taking people out to kill them. A soldier and a refugee told Witness C

24 about it and said that they were likely killed. Ivan was later seen

25 floating in the Neretva but his body was never recovered. Franjo's body

1 was recovered some three months later in a lake; he was buried. This

2 incident was even reported to the security at the hydroelectric plant so

3 they would notify the other -- the police or other civic personnel. They

4 were taken that night -- or on the night they were taken, Witness C --

5 Witness E testifies that the members of the 9th were taking

6 villagers from their home and killing them. The guard or soldier who

7 spoke to Witness C considered them dead, the police considered them dead,

8 the refugee considered them dead, and they were never seen again.

9 Obviously they were killed.

10 The Prosecutor submits that in addition to those seven bodies or

11 dead bodies that the Defence conceded to, 20 more were proven.

12 The Defence next raises the issue: Who killed those victims in

13 Grabovica. The answer's obvious. The murder was committed by the members

14 of the 9th Motorised Brigade, which was also referred to as Celo's unit or

15 Celo's soldiers. 27 villagers died in approximately 24 to 30 hours.

16 There was no plague in Grabovica, there was no natural disaster. We know

17 that Enes Sakrak received an order from his platoon commander on the

18 morning of September 9th. The order was the villagers were to be killed.

19 By that time Sakrak had already witnessed once if not two murders. Sakrak

20 and two soldiers from his unit, Sead Karic --

21 [Trial Chamber and registrar confer]

22 [Trial Chamber confers]

23 JUDGE LIU: Well, Mr. Weiner, I'm very sorry to inform you that we

24 have some technical problems, that is the -- your speech could not be

25 broadcast outside this courtroom. So we have to stop and have a break for

1 15 minutes so that -- to let the technicians to fix it. I'm sorry about

2 that.

3 MR. WEINER: No problem, Your Honour.

4 JUDGE LIU: And -- well, we will resume at 11.30. Yes.

5 --- Break taken at 11.13 a.m.

6 --- On resuming at 11.34 a.m.

7 JUDGE LIU: Well, Mr. Weiner, I apologise to you for this

8 interruption. You may proceed.

9 MR. WEINER: Thank you, Your Honour.

10 Now, when we left off, Enes Sakrak said that his commander, his

11 platoon leader in the 9th Motorised Brigade gave the order the villagers

12 were to be killed. By that time Sakrak had already witnessed one and

13 possibly two murders. Sakrak and two soldiers went out, they went

14 looking, and they eventually came to the Zadro farm, a small family farm.

15 They found an elderly couple there, a younger couple, and three children.

16 Rajkic and Karagic killed the elderly couple. They then killed the

17 younger man, Mladen Zadro. They took their cow. They took the ring from

18 Ljubica Zadro's finger. Ljubica Zadro was then holding 4-year-old

19 Mladenka. Sakrak shot them, killing mother and child. The soldiers in

20 the 9th Brigade were following their orders. When Sakrak returned he

21 reported to his platoon commander, We killed them.

22 These killings actually began on September 8th. Mustafa Karic of

23 the 2nd Independent Battalion recalls that on the evening of the 8th,

24 "Some of Celo's soldiers came over to us. They said there would be some

25 shooting tonight, so don't pay attention to it."

1 Saban Neziric who was standing guard on the other side of the

2 river stated that the shooting lasted for a considerable period. This was

3 not target practice, this was not a celebration, nor a military

4 operation. It was the murder of Croatian villagers in the village of

5 Grabovica. It was planned and it was based on an order.

6 Witness E tells us what he recalls on that horrible night of

7 September 7th. He tells us on the 7th of March at page 8:

8 "Q. Well, as you stayed in the house, could you hear anything?

9 "A. Yes.

10 "Q. What did you hear during the night?

11 "A. Screaming and shooting which was probably coming from the

12 victims and the soldiers.

13 "Q. What was coming from the victims and the soldiers, sir?

14 "A. Yells.

15 "Q. And how did the other soldiers feel when they heard these

16 yells and screaming?

17 "A. They were confused. It wasn't easy for anyone because we

18 knew what was going on.

19 "Q. What was going on?

20 "A. They were taking the inhabitants away, killing them.

21 "Q. Now, did you have an opinion as to the sobriety of some of

22 those soldiers or -- let me step back, sir. Whose soldiers were taking

23 the inhabitants away and doing this?

24 "A. Celo's soldiers."

25 Witness D also recalls that no one did anything to prevent the

1 killings that night. He identified the murderers as Mustafa Hota and the

2 one who was tried in Sarajevo, which we know to be Enes Sakrak. These

3 were two men from the 9th Brigade.

4 Enes Sakrak, after observing or participating in the murders,

5 spoke with another soldier named Habib Alic, also from the 9th Brigade.

6 Alic told him that he killed a woman in the house after he tried to rape

7 her.

8 Sefko Hodzic spoke with the commander of the Igman Wolves. He was

9 sickened by what he had seen. He was a witness to the murders in

10 Grabovica. He said that they went from house to house killing. They then

11 threw them in the Neretva. The commanders believed that the killers were

12 under the influence the drugs or alcohol. He said: "They even tried to

13 some Bosniak women but some of them were able to escape to our Igman

14 Wolves base."

15 This testimony is consistent with what Witness E tells you, when

16 he says he also saw what he believed to be a rape on the evening of the

17 8th and it was being committed by Celo's soldiers. Witness C also

18 believed that those members of the 9th Motorised Brigade or Celo's

19 soldiers were under the influence of drugs or alcohol.

20 Vehbija Karic also blamed the 9th Brigade for the crimes committed

21 in Grabovica and believed that drug use was the cause. Ahmed Salihamidzic

22 spoke with Adnan Solakovic in Grabovica Adnan we know is the commander of

23 the 2nd Independent Battalion. He told -- sorry, Solakovic told

24 Salihamidzic that at least five civilians had been killed and Celo's

25 soldiers killed them. Salihamidzic spoke with a soldier who was manning

1 the checkpoint. He told Salihamidzic that the soldiers in the next unit

2 to them were killing the Croat villagers, and he was scared since he was

3 not a Muslim. The soldiers in that next unit were Celo's soldiers.

4 There are many documents which are now exhibits which indicate the

5 soldiers committed the killings, or the soldiers from Sarajevo committed

6 the killings, or Celo's or the 9th Brigade soldiers committed the

7 killings.

8 Namik Djankovic first heard about the killings on September 8th.

9 The talk outside the hotel was that members of the unit from Sarajevo had

10 killed civilians in Grabovica. On September 9th he notified the command

11 in Sarajevo of a killing by BiH soldiers with members of the 9th, and

12 10th, and 2nd Independent Units in the area.

13 Witness -- I'm sorry, Exhibit 157 is from the commander of the

14 army, Rasim Delic, and it's dated September 12th. And he asked them -- he

15 asked the 6th Corps to check the accuracy of the information regarding the

16 genocide committed against the civilian population by members of the

17 1st Corps, 9th Brigade.

18 Exhibit 222, Ahmed Salihamidzic wrote that the killings were

19 perpetrated by members of the unit commanded by Ramiz Delalic. Also in

20 that exhibit, that exhibit has two documents, Sajid Brankovic, in his

21 document wrote: "News spread that several Croatian soldiers had been

22 killed and that these murders had been committed by the above-mentioned

23 members of the BH army units from Sarajevo." The above-mentioned units

24 were Celo's units.

25 Exhibit 235 dated September 29th says: The perpetrators have

1 returned to Sarajevo. Also in that document Samir Pezo writes that -- or

2 they write about Samir Pezo that he would not let his Serbian or Croatian

3 soldiers participate in combat for fear that Celo's men would kill them.

4 Returning to Exhibit 222 it says: Celo's soldiers even found out

5 that a member of Zuka's unit was a Croat. They slit his throat, killing

6 him.

7 The evidence has been clear that either Celo's soldiers or members

8 of the 9th Brigade committed the murders. There has been no significant

9 testimony accusing anyone else. The Defence claims that the perpetrators

10 are unknown and Witness C's testimony supports their claim. Witness C

11 said a soldier went to her house and said that he had to kill her because

12 she was a Croat and Ustasha. And she mentioned that he was from these

13 tigers that had been to her house before. The witness, however, says that

14 the tigers came as reinforcements in September and further testifies that

15 they were these new soldiers from Sarajevo. In addition, it should be

16 noted that Witness C's testimony was confusing. She would say one thing,

17 then she would say something different, then she'd start a different

18 answer, then go back to the next answer. But whenever she talked about

19 the tigers and they asked her where the tigers were from, she said, from

20 out north, Sarajevo.

21 In addition to Witness C, one member of the 9th Brigade has

22 admitted to a murder. Another told Enes Sakrak about committing a murder.

23 Three members of the 9th were observed committing murders. Within 24 to

24 30 hours after the arrival of the 9th Brigade, all of the murders

25 occurred. Members of the 9th were the ones who received those orders to

1 kill and sadly, we submit, obeyed those orders. The Prosecutor submits

2 that it has proven beyond a reasonable doubt that the soldiers from the

3 9th Brigade, or Celo's unit, committed those killings in Grabovica.

4 Now, it is also our argument that these murders occurred because

5 the accused failed to take reasonable and necessary measures to prevent

6 these crimes. I will address the factual basis and Attorney David Re will

7 discuss the legal basis.

8 27 villagers did not have to die. With basic and proper actions

9 and precautions, these people would have survived. The accused did

10 nothing to prevent the crime in Grabovica from occurring. The Prosecution

11 submits that the accused was more interested in his own glory. He brought

12 the press along on a military operation. He was providing interviews. In

13 Exhibit 289 at page 26, the accused tells Sefko Hodzic, and that is after

14 the Grabovica murders, from the beginning of the war to this point there

15 has not been a greater operation. We suggest that the accused was

16 dreaming of a great command and the glory that would follow and that he

17 lost his focus. And as a result, his actions were reckless.

18 There are no specific and reasonable measures that must be taken

19 to prevent a crime. Rather, a reasonable measure is defined on a

20 case-by-case basis. In this case we will prove that there were none. His

21 failure to prevent these crimes began towards the beginning of the

22 operation and continued through Grabovica. First, the accused failed to

23 select the proper units. His selection of the 9th and 10th Brigades was a

24 colossal error. They had bad reputations. They were undisciplined. They

25 had mistreated the civilians of Sarajevo. Their poor reputation was

1 common knowledge. They may have been good fighters, but they abused

2 civilians. The crimes of the 9th and 10th were common knowledge. There

3 was the theft of property, the theft of vehicles, kidnapping, extortion,

4 drug use, smuggling, beatings, burglary, murder, forced labour, including

5 trench-digging. Everyone in Sarajevo knew about trench-digging.

6 In addition, they started a mutiny in July of 1993. Halilovic

7 knew about these criminal activities. In June of 1993, the accused

8 ordered the formation of a commission to look into trench-digging.

9 Further, high-level meetings were held in Sarajevo where criminal and

10 disciplinary problems of the 9th and 10th Brigades were discussed. The

11 accused was present at those meetings.

12 The Ministry of Interior and the military would meet several times

13 to discuss these criminal activities. Bakir Alispago said that

14 Halilovic's view was that this was a military problem as opposed to a

15 police problem. Ramiz Delalic even says that after the accused attended

16 these meetings he would call us and tell us what was discussed.

17 Basically, the accused knew all about these crime problems, and as we'll

18 shortly know, it was well-known throughout Herzegovina.

19 Halilovic not only selected these units, but he pleaded with Caco

20 to send his 10th Brigade. Sefko Hodzic was at that meeting where

21 Halilovic and Caco spoke. Halilovic believed that Caco was mentally ill.

22 If you look to March 23rd testimony, pages 69 and 70. Hodzic: "Well,

23 when we set out I said, Sefer, that is the first time that I see this Caco

24 person, but I don't think he's all there. And he said, No, he isn't. And

25 he said, Well, I really don't think he is. Well, I couldn't quite say

1 he's a lunatic. I can't remember what sort of word I used then, but I

2 said there was something wrong with him. But he did have good fighters,

3 so he said it is part of reality of war, but he's useful."

4 What we have here is the Chief of Staff of the Army of Bosnia and

5 Herzegovina pleading for the assistance of a mad man. When the 6th Corps

6 Chief of Staff Dzevad Tirak learned that those units from Sarajevo had

7 arrived, he was upset and he says because they had a very bad reputation.

8 The corps deputy commander sent Tirak immediately to meet Rasim Delic, the

9 commander of the army, and have those units withdrawn. Here are some just

10 very brief quotes from his testimony of March 30th. Page 65 to 66:

11 "Q. Why did you ask Mr. Delic for the 9th and 10th Brigades to be

12 sent back to Sarajevo?

13 "A. Because I believed that those units were not able to

14 contribute much to any offensive operations. It wasn't only my opinion,

15 it was shared by all members of the 6th Corps command who were there.

16 They could only cause trouble. That's why we asked those units to be

17 withdrawn from the area of responsibility of the 6th Corps as soon as

18 possible. That was why I requested their urgent removal. The news of

19 that -- of this crime that had taken place only reinforced me in this

20 request."

21 That's page 65/66. Another short quote, 54:

22 "Q. What did you tell Delic in respect of that?

23 "A. I must say, I was rather surprised and think I dare say I

24 rather irritated by that and I said, Whoever brought those units to the

25 area did not know what they were doing."

1 Finally on page 47:

2 "Q. You were talking about the track record of the 9th and

3 10th Brigades in your detailed answer to the Court. Could you explain

4 that?

5 "A. As I said, I can't really say much more. It is my view and

6 not just my view that those two brigades had a reputation for causing

7 trouble and problems."

8 Assuming that you had no option but to take those troops,

9 precautions could -- should have been taken. You don't have to be a

10 military expert to explain the need for cautions. Common sense dictates

11 that. In respect to the soldiers, no limits were placed on the units

12 within the brigades that were being sent. Halilovic could have ordered

13 that no soldiers with criminal records, under investigation, having

14 disciplinary problems, or drug and alcohol problems shall be sent, but he

15 did not.

16 In the Defence brief they state that the assignment of personnel

17 was left to Karavelic. This was another mistake of the accused.

18 Halilovic should have provided selection criteria. He knew about those

19 units. He knew about the problems with those units. He could have acted

20 to protect those people.

21 And there were more failures to prevent the crimes. No order was

22 made to assign or send military police from the 9th Brigade along with

23 those soldiers. There was no order to send the military police to the

24 village of Grabovica, nor was there an order for the 6th Corps military

25 police to be sent to Grabovica. When the soldiers arrived there was no

1 welcome, or so-called welcome, strongly advising them how to act in a

2 village with civilians.

3 There was a failure to properly supervise. Who was in control in

4 Grabovica? We know Zuka or Zulfikar Alispago wasn't there, who they were

5 subordinated to. We know Ramiz Delalic wasn't there. The high-ranking

6 officers visited, but they didn't stay there. No supervision or no strong

7 supervision. Bad troops with criminal tendencies plus no supervision

8 created a dangerous situation. And if you look at the facts, you see it

9 because immediately upon arrival the atmosphere in Grabovica changes.

10 There's shooting, there's shouting. And within hours it turns to murder,

11 rape, and kidnapping.

12 Now, what precautions were taken to protect the villagers? None.

13 Rather the opposite was done. They billeted those problem soldiers with

14 the villagers. These were Croat civilians, civilians from the so-called

15 enemy side, civilians whose relatives they would be fighting against. And

16 what was worse, these were mainly elderly civilians, people who were

17 highly vulnerable. No billeting assessment was performed for these troop

18 accommodation. According to Jusuf Jasarevic, it would have prevented the

19 billeting of troops with civilians. There was no protection of civilians

20 which would have come out of an assessment. The civilians weren't moved

21 out of the area, they were not separated from those troops, there were no

22 guards or police. This was a recipe for disaster. As a result, the

23 trouble began soon and it continued for 24 to 30 hours. The result was 27

24 dead civilians. Steps should have been taken to prevent those crimes.

25 Witness D sums it up best at page 30 on 21 February. "On the next

1 day when I got up, it was in the morning, 8.00 or 9.00, I'm not sure, and

2 I saw next to the road there were corpses and there was blood. All night

3 this crime had been going on. These murders which no one was able to

4 prevent, or rather nobody paid attention. All these commanders who had

5 been there had nothing to prevent that crime from happening."

6 In summary, the Prosecution submits that the evidence has proven

7 that Sefer Halilovic did not take the necessary and reasonable steps to

8 protect any of those villagers, and as a result they died, 27 died, for

9 nothing.

10 Moving to the villagers of Uzdol. 29 villagers died in Uzdol.

11 The Defence has argued that the Prosecution has failed to establish how

12 they died, who killed them, and that they were civilians. We will address

13 the first two issues together and then the third. The Prosecutor has

14 proven that the villagers did not die as a result of shelling or

15 crossfire. With regard to shelling, a pathologist has testified and

16 provided autopsy reports, statements, and photographs. He concluded that

17 none of those villagers, none of the 27 he examined, two were burned to

18 death, none of those 27 he examined suffered from explosive injuries,

19 rather, they were victim of gunshot wounds, of an axe-like object, or

20 both.

21 We submit that the allegation of shelling was a fraud on this

22 Court. The village was never shelled. Kate Adie from the press, an

23 objective source who came in and visited that village saw no evidence of

24 shelling. Between Kate Adie's video and the video of Kaza Zelenika, there

25 is over one hour of footage. And if you look carefully there are no

1 craters, there are no buildings with holes in the walls, there are no

2 buildings with portions of walls knocked down that you commonly see with

3 shelling. That didn't exist in Grabovica. If the shelling occurred for

4 hours, why no craters? Why? Because as Kazo Zelenika and Kate Adie told

5 you, it never occurred. And if you look at their videos, you can see it

6 never occurred.

7 Why this fraud? Enver Buza needed this fraud to divert blame from

8 the murders of the Prozor Independent Battalion. It was a good try,

9 except the autopsies were performed and the doctor found no explosive

10 wounds. But there's two other little pieces of information that also show

11 that there were no shelling. In this heavy, continuous shelling that

12 these soldiers claim occurred, no HVO soldier was killed. They want you

13 to believe some sort of miracle occurred and that only Croatian property

14 was damaged by the shelling. It is absurd to say that the Croats were

15 shelling strictly their own property. It's unworthy of belief and it's

16 unworthy of belief by this Chamber.

17 The Prosecutor submits that these 29 victims died from intentional

18 acts of murder by ABiH soldiers from the Prozor Independent Battalion. We

19 know that soldiers of the Prozor Independent Battalion attacked Uzdol on

20 orders from the accused. We know that ABiH soldiers were overheard

21 asking, What should we do with the women and children? The answer, Kill

22 all prisoners. We know that Exhibit D315 introduced by the Defence, a

23 book about the deaths in Uzdol, describes what happened. On page 6 of the

24 exhibit, or page 9 of the book it says: "On the 14th of September, 1993,

25 BiH army soldiers invaded Uzdol and began a total massacre. They killed

1 everyone they found there, women, children, old men. They also burned

2 houses, killed cows, oxen, and dogs."

3 What else do we know? That five people, or the murder of five of

4 those 29 were witnessed being killed by ABiH soldiers. Let's step back.

5 Ruza, Marija, and Stjepan Zelic were running from the soldiers who were

6 yelling Allahu Akbar. The were captured. Marko Zelic was hiding in the

7 bushes; he got away. The soldiers called -- the soldiers spoke. They

8 didn't know what happened -- what to do with the women and children. A

9 soldier said to kill all the prisoners and mentioned Enver Buza's name,

10 the commander of the Prozor Independent Battalion. There were then some

11 shots and the soldiers left. Witness came out of the bushes and saw the

12 three dead bodies of his mother, his little brother, and his little

13 sister.

14 Anica Stojanovic was killed outside of her home. Janko

15 Stojanovic, a neighbour, saw it. She was calling for her son, she was

16 falling back. A soldier shot her in the head at close range as she was

17 falling backwards and lands on her back. The pathologist confirmed that

18 the wound to the head was a close-range shot, meaning between five

19 centimetres and one metre, which is just as Janko Stojanovic said. There

20 were four other shots in her body. Janko never explained why she was

21 falling back. It's very possible she was shot then and as she was falling

22 she was shot in the head or someone just shot her after. But what Janko

23 saw was corroborated by medical testimony.

24 These were four executions.

25 The next witness murder is that of Mara Grubisic. She went to the

1 barn. ABiH soldiers set fire to the barn. The flames rose quickly.

2 Witness I saw them set fire to the barn. Her remains were later found and

3 she was buried, or they were buried.

4 In addition to those five witnessed murders, seven were killed at

5 close range during the ABiH attack. Two elderly women were struck with an

6 axe-like weapon. You can see the cutting marks in their skulls. They

7 were Ruza Zelenika and Serafina Stojanovic. Ruza died in her bed and

8 Serafina also died in her home, in her own home. The husbands of both

9 were also killed. Five others were killed at close range by gunshots.

10 Two elderly Croatian women were killed at absolute close range. According

11 to the pathologist, that means the gun was either touching their head or

12 within five centimetres away. Both had head shots. They were Janja

13 Zelenika and Kata Ratkic. In addition, Janja Zelenika was shot at close

14 range. She was lying along a narrow footpath, the wall of a building on

15 one side, shrubbery or bushes on the other, and she was shot at

16 close range.

17 Two elderly men were shot at close range, both right at their

18 doorways, just outside their homes. Those were Mijo Rajic and Martin

19 Ljubic.

20 Also shot at close range behind her home was Kata Ljubic. In his

21 proofing notes that were admitted as an exhibit, Dr. Andjelinovic

22 concluded said that Kata Ljubic was shot at close to five centimetres

23 away. Mato Ljubic was shot at approximately 10 centimetres away, the gun

24 was 10 centimetres away from his body. And Mija Rajic was shot between 20

25 centimetres and one metre away from his body. The Prosecutor submits that

1 these close-range killings were not the result of crossfire; these were

2 executions.

3 These 12 victims that I've mentioned did not die from crossfire.

4 They did not die from shelling, they were not killed by some sort of

5 accident. They were brutally and intentionally murdered.

6 In addition, seven victims were also killed in their homes under

7 circumstances indicating that they were murdered. Ivka Rajic, that was

8 the woman, if you recall, what had suffered a stroke 13 years earlier.

9 She hadn't been able to walk in years. She was shot three times as she

10 lay in a chair or her bed. Her husband was killed at close range at the

11 doorway. Five neighbours across the street had been killed. We submit

12 that her death was not accidental.

13 Martin Ratkic was killed, you might remember that one. He was the

14 one who was embracing with his wife and they were both dead. They were

15 lying right next to each other. He had an ear that was severed while he

16 was alive. There was a lot of cross-examination on that issue, but on

17 re-examination the doctor produced one of his own photographs, and it

18 depicts this cutting edge or cutting line on the ear, which he said based

19 on that he was able to determine that that ear was severed while he was

20 alive. As a result, Martin Ratkic was attacked at close range and his

21 death must be deemed intentional.

22 Jadranka and Ivan Zelenika were killed in their home. Jadranka

23 was the little girl, Ivan was the older man, her grandfather. Her

24 grandmother Ruza, you might recall, was lying in the bed. Her head had

25 been blown off. Actually, she was the one who had the axe-type cutting to

1 the head and there was also possible shots to the head. She also had four

2 shots to the body. Little Jadranka was also dead in that house. Earlier

3 in that morning their barn was set on fire. Marko Zelic goes by and he

4 sees the barn on fire and he sees Ivan outside his house with a soldier.

5 Moments later or minutes later there is an order to kill, and Marko Zelic

6 hears the shooting and sees the death of three of his -- three members of

7 his family.

8 Right around the corner from that, the Zelenika house is here --

9 we don't have use of the computer. The Zelenika house is right here, the

10 Zelic house is here, and right next to it, diagonally across from the

11 Zelenika house, are those three dead bodies. These deaths, we submit,

12 were not accidental or the result of crossfire.

13 Two elderly women, Luca Zelenika and Kata Perkovic, were both

14 killed in their homes. Their homes do not appear to be looted or

15 disturbed. These people were living in Zelenika in a cluster of homes.

16 If you look at Exhibit 300, everyone in that cluster of homes, a woman in

17 all of those homes had been killed, which is consistent with Kate Adie's

18 testimony of a systematic, house-to-house killing, which is also

19 corroborated by Marko Zelic's testimony, kill all prisoners, which is also

20 corroborated by Exhibit 315 introduced by the Defence, noting that BiH

21 soldiers killed everyone they found, which is also corroborated by Ivka

22 Stojanovic's testimony where soldiers said she was dead as she lay there

23 motionless. And they went looking for another. When they went looking

24 for another, they weren't looking for prisoners to bring back to Hari

25 [phoen]. We submit they were looking for people to kill.

1 Finally we see the both of -- I'm sorry, the death of Jela Dzalto

2 who died in a fire in the Prskalo house. Exhibit 315 explains that she

3 went into the house and wouldn't come out, so the BiH soldiers set it on

4 fire. We submit that's an execution. That's not a killing by crossfire

5 or accident.

6 Ten villagers were killed outside of their homes in circumstances

7 consistent with murder. Two elderly men were killed outside of their

8 home -- of their homes. 87-year-old Franjo Stojanovic was shot, and

9 here's the quote: "While his body was at a relative rest." "Body was a

10 relative rest."

11 Anto Stojanovic was shot four times. In the three closest homes

12 to him, the victims were killed at close range, and you can see those

13 homes in Exhibit 302, and the victims are Kata Ratkic, Anica Stojanovic

14 and Serafina Stojanovic. These old men were lying outside their homes

15 without any shoes. Their deaths and those of their neighbours are

16 consistent with a house-to-house execution.

17 Dragica Zelenika was shot and her body was partially burned. She

18 also died in that cluster of homes in Zelenika. If we look at -- if we

19 can get Exhibit 301 -- or 300 on the screen. I heard it's working. If we

20 look at -- 301 will be fine. If we look at 301, we see the markings, 4,

21 5, 6, 7. It's directly in the centre to the left. It's a -- you'll see

22 it soon, but it's a cluster of homes. And what's interesting -- I'm not

23 sure if the system's working. The women in those homes were killed in

24 each of those homes.

25 Now, where Dragica Zelenika was killed, Witness I sees soldiers

1 fighting.

2 We don't have it. I'll just continue, Your Honour.

3 JUDGE LIU: But we saw it on our screen.

4 MR. WEINER: Okay. Oh, thank you.

5 Now, Witness I tells you in that area she was shot at, a barn was

6 set on fire, she could hear soldiers yelling Allahu Akbar. The soldiers

7 said they were going to come back for her. It's our contention that

8 Dragica, like the others, died intentionally. She was murdered.

9 Finally, there are seven villagers who were killed just outside

10 their homes -- outside two homes. In one we have Domin Rajic, Ivka Rajic,

11 and Zorka Glibo and they are with their son, Ivan Rajic. And in the other

12 we have Lucija Rajic, Sima Rajic, Stanko Rajic and Mara Rajic. In our

13 brief we argued that based on the position and locations of those bodies

14 and their wounds it appeared that these victims were lined up and executed

15 or that they were ambushed, and that's at paragraphs 405 to 409 and 417 to

16 420 in our brief. If you look at the three bodies in a row of Lucija

17 Rajic, Sima Rajic and Stanko Rajic in Exhibit 312 at 4839 to 4848, you

18 see them lined up in a row. You see that it looks -- something looks

19 wrong, like they were lined up and killed.

20 Let's go back to Exhibit 315. What does it say with regard to

21 Stanko and Lucija Rajic? It says Stanko and Lucija Rajic were captured

22 and placed in front of the Prskalo house with Sima and Mara Rajic and

23 killed. That's page 42 of the book and that's concerning the information

24 of Lucija Rajic.

25 And what does it say about Domin and Ivka Rajic? It says that

1 they were also killed after their son was executed. Not only were these

2 29 deaths murders, they were committed by the ABiH soldiers.

3 Those soldiers from the Prozor Independent Battalion, they were

4 the ones that were present. They had the motive to kill. They had failed

5 in their mission. Some had served as human shields by the Croats and they

6 had been displaced from Prozor. They had received orders to kill.

7 According to Ivka Stojanovic, they were searching for others to kill.

8 Five of their killings, if not six were witnessed. They were burning

9 buildings and destroying civilian property, and then they lied about the

10 shelling to try and cover their acts. It's obvious who committed those

11 acts, the members of the ABiH from the Prozor Independent Battalion.

12 Finally, the Prosecution submits that these victims were

13 civilians. None of these victims were dressed in uniform. Several of

14 them didn't even have shoes. Not one was identified as firing at

15 soldiers. Not one was identified as carrying a firearm on that day. Most

16 were dressed in traditional village clothing. Three of the victims were

17 young children.

18 The Defence claim that two women who baked bread for the soldiers

19 were not civilians; they are Kata Ljubic and Mara Rajic. The women who

20 helped out in the kitchen did not wear uniforms, they did not carry

21 weapons. Those people who volunteered to bake, to cook, to clean, or

22 distribute food were not involved in hostilities. These victims were not

23 at the school when they were killed nor were they with soldiers. They

24 died with their families. Domin Rajic was killed outside of his home.

25 There's no evidence that he was involved in combat at the time. He wasn't

1 at the school. He died with his family. He died near his son, who was

2 wearing a uniform, and you can see the difference. Domin and his wife

3 dressed as basic villagers and his son in a uniform. According to Exhibit

4 315, he and his wife were executed after their son, a soldier, was

5 executed.

6 The documents that the Defence produces, indicating that Kata

7 Ljubic and Domin Rajic died, that they died while carrying out orders. We

8 know, according to the testimony of Kazo Zelenika that that wasn't true.

9 They weren't on the front lines. When they asked Kazo Zelenika about Kata

10 Ljubic being on the front line, he thought it was ridiculous. They

11 weren't at the school. Kazo, who was the registrar for the area, he knew

12 the people, he was part of the local unit, he didn't even believe that

13 Domin Rajic had been mobilised, nor was Kata baking for the soldiers at

14 that time. He said that Kata was baking for the soldiers when the war

15 started and that was it.

16 The Prosecution submits that these documents which entitled family

17 to benefits were a gift. They were a gift that were given to families.

18 They weren't based on what had occurred, and they do not convert these

19 people into being soldiers.

20 Ruza Zelenika allegedly threw a hand-grenade, not to wage war but

21 as a diversion so she and her children could escape. So even if you

22 believe the testimony that she threw a hand-grenade -- or the book that

23 says she threw a hand-grenade, was she fighting with the soldiers? Did

24 she stay and shoot at them with guns? No. She threw a hand-grenade out

25 one window and they got out of the house. And what did they do? Did they

1 go out and fight? No. They ran for their lives. Should a single act of

2 self-defence convert her civilian status into that of being involved

3 hostilities? We suggest that it should not. These people ran off, they

4 were captured, they were held. A determination had to be made what to do

5 with the women and children, and sadly there was an order to kill all

6 prisoners.

7 Now, the Defence alleges that the villagers suddenly rose up and

8 took the defence of the village. Where's the proof? Who did this? The

9 elderly? The infirm? The little children? All they have is a report

10 from Enver Buza which says that his troops were fighting armed civilians.

11 Whose got the motive to lie? Buza sure has. His soldiers are allegedly

12 involved in a war crime. His report about the incident, according to the

13 chief of security, Nermin Eminovic, the chief of security from the

14 6th Corps, was viewed as not serious. Mr. Eminovic said it has false

15 figures as to the numbers killed -- or actually, we claim it had false

16 figures as to the numbers that were killed. He's talking about 65 people

17 killed. We know from the death certificates that 65 weren't killed.

18 Eminovic says the numbers were as if they were being given off the top of

19 one's head. The head of security didn't take the report seriously. We

20 claim that the report is not reliable and suggest nor should the Court.

21 Who rose up and fought against the ABiH? There's no testimony of

22 anyone grabbing a gun and fighting. The fact that there might have been

23 guns in their homes, they were farmers and hunters in the area, the fact

24 that soldiers occasionally stayed in their homes does not convert those

25 civilians into being soldiers nor does it make them legitimate targets.

1 Finally, the Defence claims in paragraph 57: "There is no

2 evidence of any of the unidentified perpetrators in Uzdol -- perpetrator

3 in Uzdol was aware at that time that any persons which he might have

4 killed was a civilian, and with that knowledge he intentionally and

5 deliberately killed him."

6 I'd like to show the Court some video clips and let the Court

7 determine whether or not someone looking at these people would believe

8 that they were civilians. We're going to be using Sanction. Thank you,

9 Mr. Registrar.

10 [Videotape played]

11 Stjepan Zelic, the little boy who's not wearing pants, no

12 stockings or no shoes. Does this look like a soldier taking part in

13 hostilities?

14 Could we go to next one, please. Could we go to Jadranka

15 Zelenika.

16 [Videotape played]

17 MR. WEINER: This is Marija Zelic, a 13- or 14-year-old girl. Do

18 we see any guns? Do we see any shell casings near her? She doesn't even

19 have shoes. Would anyone believe that she was taking part in hostilities?

20 Could we go to Jadranka Zelenika, 35.22. Right there.

21 [Videotape played]

22 MR. WEINER: We see Jadranka Zelenika here with her grandmother.

23 Is there anyone who's going to say that that little child was a soldier

24 taking part in hostilities or her grandmother who's next to her with a

25 head that was partially chopped off?

1 Since we're having trouble with the system, you can look at the

2 others. Look at Luca Rajic, Sima Rajic, Ivka Rajic, the paralysed woman

3 killed in her bed. Look at the others. Kata Petkovic, the elderly lady,

4 if you remember, lying in her own home with the thick glasses. Any

5 soldier seeing these people would have known that these are civilians, and

6 if there was any question, the benefit goes to them as being civilians.

7 The Prosecutor submits that any soldier who wanted to distinguish

8 would have been able to determine that these were civilians and not

9 soldiers. But the soldiers of the Prozor Independent Battalion weren't

10 trying to distinguish who was a civilian; all they were trying to do was

11 kill. The Prosecutor submits that we have proven beyond a reasonable

12 doubt that 29 civilians were killed in the village of Uzdol on that date.

13 Thank you.

14 JUDGE LIU: Well, thank you very much. And I think that we should

15 have a break and we will resume at 10 minutes to 1.00.

16 --- Recess taken at 12.24 p.m.

17 --- On resuming at 12.52 p.m.

18 JUDGE LIU: Well, we'll continue until 1.45, then we stop. And in

19 the afternoon this courtroom will be used for a judgement hearing by the

20 Appeals Chamber. Then we'll resume at 3.45. I understand that the

21 Prosecution has not used up the time allocated to them.

22 Mr. Re, are you ready?

23 MR. RE: Indeed, I am. Thank you, Your Honours.

24 I will be speaking about several issues. I will address in

25 slightly more detail how the Prosecution has proved that Mr. Halilovic was

1 in command and control and had effective control over the soldiers that

2 committed the two massacres. I will also expand upon some things Mr.

3 Weiner referred to under the heading of failure to prevent. I will

4 address a number of Defence arguments. To let the Trial Chamber know

5 where I'm going, the Defence legal arguments that I will specifically

6 address are under the following headings: The pleadings, the particulars,

7 the armed conflict, the nexus, the body of law, the legal issue of

8 levee en masse, causality and failure to punish, acquiescence, the

9 pre-existing legal duty, the state of law, whether Mr. Halilovic acted in

10 accordance with Bosnian law. I will also address the two issues of

11 failure to punish in both of the crime base areas of Uzdol and Grabovica.

12 The first area I wish to address is that of command and control

13 and how the Prosecution has proved that Mr. Halilovic was in command and

14 control of the units that perpetrated the massacres in Grabovica and

15 Uzdol. I'll move to several specific examples. Now, at the end of the

16 case it is, the Prosecution submits, apparent that the evidence is both

17 direct and circumstantial as to his method of control. One of the ways

18 which we have shown that he had command and control is through direct

19 evidence relating to the troops of the 9th and 10th Brigades and the

20 2nd Independent Battalion travelling to Grabovica in September 1993. The

21 Prosecution has produced -- adduced direct evidence of the subordination

22 and of the orders to and from Mr. Halilovic, to which the only conclusion

23 which can be drawn is that he was in command of both the operation and of

24 all the units that participated in Operation Neretva.

25 Now, General Vahid Karavelic was crucial to the Prosecution's case

1 in this respect. His evidence was that he, that's General Karavelic, who,

2 in the Prosecution's submission, was a very impressive person and a very

3 impressive if not charismatic witness with absolutely no axe to grind, no

4 hidden agenda, and came here as a witness of truth to assist the Trial

5 Chamber in its quest for the truth.

6 Mr. Karavelic, who was in the very, very difficult position of

7 being in charge of the Defence of Sarajevo from the encircled Bosnian Serb

8 forces attended the Zenica meeting in August 1993. Now, he says at the

9 end -- his evidence was at the end of August or early September,

10 Mr. Halilovic ordered him to send units to Herzegovina for operations in

11 the Neretva Valley. Mr. Karavelic resisted this. He was afraid of taking

12 soldiers from the Defence of Sarajevo.

13 Now, the Trial Chamber has to ask itself: Why is Mr. Halilovic

14 ordering Mr. Karavelic to send soldiers anywhere if Mr. Halilovic did not

15 have the power to do so? The Trial Chamber has heard extensive evidence

16 which is not opposed by -- which is common to both sides, that the Chief

17 of Staff has no -- of an army has no command functions except those

18 delegated to him by the commander. Now, why would Mr. Halilovic, if he

19 was not indeed in charge of the Operation Neretva, the operation to clear

20 the blockade of Mostar, be sending orders to corps commanders, generals,

21 to take troops from desperately needed on the outskirts of Sarajevo to

22 another operation?

23 Now, Karavelic's response was to resist this, but Mr. Halilovic

24 then sent Mr. Karavelic a written order; that's Exhibit P161.

25 Mr. Karavelic was of the view that it was illogical. That was the order

1 in which Mr. Halilovic asked for specific units. Mr. Karavelic's reaction

2 to that was, Well, it was logical to ask for the Delta Brigade, it was

3 logical to ask for the 2nd Independent Battalion because they were mobile

4 units, but it was not logical, in military terms, to ask for parts of the

5 9th or 10th Brigades.

6 Now, that's of course something Your Honours can use, the Trial

7 Chamber can use, in assessing Mr. Halilovic's mens rea. Mr. Weiner

8 touched upon the criminal activities, the known criminal activities, of

9 the 9th and 10th Brigades in Sarajevo. And the fact that Mr. Halilovic

10 knowing of their criminal propensities and indeed actions was prepared to

11 personally select these two brigades goes to his mens rea of his failure

12 to prevent what later occurred in Grabovica.

13 Now, what was Karavelic's reaction to receiving this order from

14 Mr. Halilovic? Well, Mr. Karavelic, because of his concern, contacted the

15 commander, General Rasim Delic. It was only after Delic told Karavelic

16 that he, Karavelic, should act in accordance with Halilovic's orders that

17 Karavelic was prepared to accede to them. Mr. Karavelic gave the reason

18 of why he contacted Mr. Delic was because it was a basic military rule

19 that the commander is a superior to a Chief of Staff.

20 Now, on the 2nd of September, and that's Exhibit P382,

21 Mr. Halilovic carried through by asking -- by writing to Mr. Karavelic

22 again asking for an urgent response to his earlier request for the troops

23 to be sent to Neretva. In response to Halilovic's orders, what did

24 Karavelic do? Well, he responded in accordance what Delic told him he

25 should do, and that is to send the troops. So he issued orders to the

1 troops to go there. For example, Exhibit P83 is the order of the 4th of

2 September, 1993, to Ramiz Delalic, Celo, in person ordering him to send

3 troops, soldiers, to Bradina, that is two platoons of 25 men each to

4 launch an offensive.

5 Karavelic said that he also issued similar orders to the

6 2nd Independent Battalion, the 10th Brigade and the Delta Brigade.

7 Karavelic followed this up by writing to Mr. Halilovic by telling him,

8 that's Exhibit P384, that the soldiers were on their way. Now, as we --

9 as you heard the soldiers didn't go that day because of inclement weather.

10 And Mr. Karavelic on the 6th of the September wrote to Mr. Karavelic,

11 that's Exhibit -- I'm sorry, Mr. Halilovic on Exhibit P290, explaining the

12 delay. The same day in Exhibit P385 he issued an order to the commander

13 of the 2nd Independent Battalion about travelling to Jablanica, telling

14 them that combat activities in the area were to be carried out under the

15 command of a group from the supreme command. Well, who was commanding

16 that group? It was Sefer Halilovic. That's Mr. Karavelic's testimony at

17 page 44 to 49 on the 20th of April, 2005.

18 Under military doctrine and under the evidence and on the evidence

19 in this case the situation was that after the troops -- that Mr. Karavelic

20 had command and control of these particular troops, that's the soldiers

21 from the 9th and the 10th, from the time they left his subordination of

22 the 1st Corps in Sarajevo until the time that they reached the supreme

23 command group headed by Mr. Halilovic in Jablanica. Now, the point of

24 handover could have been, according to Mr. Karavelic, Sarajevo or

25 Jablanica. But the Prosecution's submission is that once they left his

1 command their subordination was transferred to Mr. Halilovic's, whether it

2 be from the point they left in Sarajevo or the point they arrived in

3 Jablanica does not really matter. The point of the subordination is they

4 were being transferred from the command of one general to the command of

5 another, that was they were being transferred from Mr. Karavelic's command

6 directly to Mr. Halilovic's command. And it is indeed a normal principle

7 of command and control in an army that troops must be under the

8 subordination of someone. And in fact, Mr. Halilovic's order of the

9 6th of September, that is Exhibit P122, makes it quite clear that he had

10 control of those troops because he resubordinated them to Zulfikar

11 Alispago, that's Zuka. That clearly sets out the delineation of command

12 and control. The subordination was clear. It was the 9th and the 10th

13 and the 2nd, went from Sarajevo to Mr. Halilovic, and Mr. Halilovic did

14 what any commander does, and that is he resubordinated them to the

15 appropriate unit on the ground. And not for one moment did Mr. Halilovic

16 lose his command and control over those units because Zuka was

17 subordinated to his inspection team -- Zuka's unit was subordinated to

18 him, and through Zuka the 9th and 10th Brigades were subordinated to

19 Mr. Halilovic.

20 There are other orders in that same period which in the

21 Prosecution's submission graphically demonstrate that Mr. Halilovic was

22 exercising command and control over all the units in the Grabovica area.

23 There was of course the order Karavelic sent on the 6th of September,

24 which is P385, referring to an agreement with Halilovic or Delic in

25 relation to carrying out offensive combat operations for the purposes of

1 liberating the Jablanica-Mostar communication. He said combat activities

2 in that area are to be carried out under the control of a group from the

3 supreme command staff led by the Chief of Staff, that's Mr. Halilovic.

4 And in that he referred to the agreement of seven days. That was the

5 period in which those soldiers were going to be under Mr. Halilovic's

6 control or command.

7 Now, why would Mr. Karavelic be referring to combat activities

8 being carried out under the control of a group led by Mr. Halilovic if in

9 fact that were not happening? Why would the general in charge of all

10 those troops in Sarajevo all subordinated to him be sending them to

11 Mostar -- the Mostar area if they were not in fact subordinate -- to be

12 subordinated to Mr. Halilovic?

13 A crucial aspect of Mr. Karavelic's evidence in relation to

14 command and control was he testified that Adnan Solakovic, the commander

15 of the 2nd Independent Battalion, had contacted Mr. Karavelic when he was

16 there, requesting that the soldiers be allowed to return. It was a coded

17 message, and the details are in Exhibit P72, that's the 11th of September,

18 and they spoke for about a minute or so. What is in P72 is consistent

19 with the conversation as relayed by Mr. Karavelic to this Court.

20 Now, the crucial part is that Karavelic testified that he could

21 not have ordered the return of Mr. Solakovic without Mr. Halilovic's

22 permission, otherwise it would have been a gross breach of discipline.

23 That's another factor indicating that Mr. Halilovic commanded the units in

24 Grabovica. In addition, there's the order to attack, Exhibit D273, of the

25 11th of September, 1993. It's a binding combat order and it could only

1 have been derived from the document resubordinating all the units of the

2 1st Corps to Zuka's troops. In fact, Mr. Karavelic testified that

3 Mr. Solakovic's unit was subordinated to Zuka's unit by Mr. Halilovic's

4 order. We ask the Trial Chamber to pay particular attention to that

5 evidence which is at page 78 on the transcript of the 20th of April this

6 year.

7 It also -- there's Exhibit P388, which is a request from

8 Mr. Karavelic to Mr. Halilovic at the IKM in Jablanica asking him to

9 respect the orders, respect the agreement, and return those parts of the

10 2nd Independent Battalion, the 9th and the 10th on the 12th and 13th of

11 September, 1993. He testified that he needed the 2nd back because it was

12 a mobile in a reserve unit.

13 Now, all those things which I've just referred to, in our

14 submission, go directly to the fact that Mr. Halilovic was exercising

15 command and control by issuing orders to very, very senior officers such

16 as Mr. Karavelic, and those orders were in fact obeyed.

17 Another factor which points to Mr. Karavelic -- or Mr. Halilovic's

18 control is that of the existence of the forward command post, which is

19 referred to by its initials "IKM." Now, an IKM in general terms is a

20 centre from which a commander can issue commands while a commander is in

21 the field. On the 1st of September, Mr. Halilovic and his inspection team

22 established one, an IKM, at the Jablanica hydroelectricity power station.

23 It is abundantly obvious from the evidence that everyone from -- the most

24 senior officers in the Bosnian army, corps commanders, Mr. Gusic, Mr.

25 Karavelic believed that Mr. Halilovic was operating a forward command post

1 from that point and was coordinating and commanding combat operations from

2 -- from the IKM in Jablanica.

3 Mr. Gusic, the 4th Corps commander who, in the Prosecution's

4 submission, had absolutely no reason not to be telling the truth on this,

5 and his evidence is of course amply corroborated by all the documents

6 flowing forwards and backwards from the IKM with IKM written on them. He

7 testified that Mr. Halilovic was in fact the commander at the IKM and in

8 that capacity issued binding orders to other commanders and they would

9 carry out all orders given by the IKM under the command of Sever

10 Halilovic. That testimony is at page 63 and 64 on the 3rd of February

11 this year.

12 And most significantly, Mr. Gusic testified that he as the 4th

13 Corps commander, again, like Karavelic, only subordinate to Halilovic if

14 he's in the -- in a line of command and control, a chain of command,

15 testified that he, Gusic, would not refuse to obey Halilovic's orders. As

16 you've heard the evidence, if Halilovic is merely the Chief of Staff he is

17 not in a position to issue binding orders unless directed to or authorised

18 to do by the commander.

19 Now, Gusic who would know, who was there on the spot, also

20 testified that the Operation Neretva was coordinated and carried out from

21 that forward command post and that Halilovic was in charge of that

22 operation. Now, Mr. Halilovic himself of course in his own report, that's

23 Exhibit P130 of the inspection team, himself acknowledges the existence of

24 the IKM. And he said, An IKM was set up in Jablanica where the team

25 planned the operation which covered the wide front from Gornji Vakuf and

1 Mostar and the valleys of Neretva and Vrba rivers and ensured logistic

2 means for the operation.

3 Now, when the soldiers went back to Sarajevo in September and

4 Halilovic was requesting from Karavelic their return, where did Karavelic

5 send his response to? Karavelic ordered Delalic on the 24th of September,

6 1993, and that's Exhibit P395, he ordered Delalic to send 125 men to Vrdi

7 Jablanica and to report to the commander of the IKM. Again, another

8 crucial piece of evidence as to the role of the IKM and the role of Sefer

9 Halilovic.

10 In our final trial brief we pointed out in pages 73 to 74 a number

11 of factors which we say the Prosecution has proved are all consistent with

12 Mr. Halilovic issuing and -- issuing orders and having them obeyed, which

13 of course is one of the indicia of effective control. And rather than go

14 through them, I invite the Trial Chambers, in due course, you will examine

15 them in some detail.

16 The next issue is that of failure to prevent, and I pick up from

17 where Mr. Weiner left off. The test for failure to prevent is that a

18 commander must take all reasonable and necessary measures within his

19 material abilities to prevent the offence or punish the offender. Now,

20 what the case law establishes, and this is quite important, is that this

21 must be decided on a case-by-case basis and there is no rigid definition

22 of what all this means.

23 The Defence in their final trial brief have made complaint that

24 the Prosecution has failed to particularise within the indictment all the

25 reasonable and necessary measures that a commander could take. The

1 Prosecution's response to this is the following: The Prosecution does not

2 need to particularise each and everything that a commander should or

3 should not have done in the indictment. The Prosecution in this case has

4 given the Defence all the notice they need of what we say our case was.

5 It's in the indictment, it's in the pre-trial brief, it was in the

6 opening, and it was in the evidence.

7 Our pre-trial -- our final trial brief has listed the following

8 matters which we say Mr. Halilovic should have done and omitted to do and

9 thereby failed to prevent -- and failed in his duties as a commander. And

10 they are: He failed to exercise care in the selection of units. By

11 bringing the very same units from Sarajevo who were known -- with their

12 known criminal propensities, who were carrying out acts -- crimes against

13 the civilian population, the robbery, the extortion, and most seriously

14 the trench-digging, kidnapping civilians off the streets and taking them

15 to the front lines where they're exposed to enemy fire and exposed to

16 possible death, which the Defence in its final trial brief dismisses as a

17 misdemeanour. The members of the Trial Chamber know better than it is a

18 misdemeanour. It would be a grave offence in any civilised society, not

19 less within a war.

20 By taking those very same soldiers, by choosing those soldiers,

21 Mr. Halilovic failed in his ability to prevent the crimes in Grabovica.

22 Upon the arrival of those troops in Grabovica, Mr. Halilovic failed to

23 issue warnings to them. He knew who these people were. He knew that

24 elements within the 9th and the 10th were committing these grave crimes in

25 Sarajevo against a civilian population, yet he failed to so much as send

1 anyone down there to issue a warning, to speak to them. The only evidence

2 before the Trial Chamber of contact between the inspection team or members

3 of the supreme command and the soldiers on the ground is to talk to them

4 about -- to talk to them about accommodation, not to warn them in the

5 strongest possible terms that they are here amongst civilians and you must

6 respect the lives of these civilian people. You must respect their

7 health. You must not harm them in anyway. Nothing like that happened.

8 Another failure by Mr. Halilovic was the failure to perform a

9 security assessment or an analysis for the billeting of the soldiers.

10 Now, that's very basic, in the Prosecution's submission. If you were

11 going to billet or accommodate soldiers amongst civilians - and it's

12 compounded here by these being soldiers of one army or ethnicity, a

13 controlling army - amongst the occupied citizens of another ethnicity, the

14 most basic thing you would do would be to perform a security assessment of

15 what is happening in that village and how you could protect those

16 civilians from what might occur.

17 Now, even Mr. Jasarevic, the chief of military administration,

18 said in his evidence, and I highlight this, the fact that it wasn't

19 controlled -- it wasn't performed, he said, and that's on page 87 on the

20 1st of March. He said: "It is precisely one of the key mistakes that

21 this assessment wasn't carried out. And I don't know why it wasn't

22 carried out because when one estimates the strength of one's own forces

23 and the terrain, our security would never propose that a unit or the unit

24 of... Celo, be billeted in the region, in the waiting area, which would be

25 a location to the rear of combat area, to some Croat village, when they

1 are about to embark upon -- into with Croats, some of whom are from that

2 village."

3 The Prosecution's submission is Mr. Halilovic failed utterly in

4 his duty in relation to performing the most basic measure to prevent harm

5 to those villagers. And from that comes the failure to recognise, the

6 basic failure to recognise the danger of billeting those very troops with

7 those particular villagers.

8 Mr. Jasarevic in evidence - and we're not just saying this with

9 hindsight - he recognised it. He said in evidence at pages 13 and 14 on

10 the 18th -- sorry, 87 on the 1st of March. "It was stupid to billet the

11 men in a village inhabited by Croats. The inhabitants were all Croats in

12 the village. There were no Bosniaks. And in the immediate vicinity of

13 that village was a defence line manned by Croat soldiers."

14 Now, the dangers of doing this manifested themselves that very

15 afternoon that the 9th and 10th Brigades arrived from Sarajevo when

16 members of the 9th and 10th brigades shot dead innocent Croat villagers in

17 the homes in which they were billeted.

18 Now, apart from that, apart from the basic failures, before --

19 before accommodating them, Mr. Halilovic failed to have his staff, those

20 under his command, plan or prepare for the security of the villagers when

21 the 9th Brigade was there. The failures there range from the most basic

22 preparation, that is not using military police, to the more complex, such

23 as moving villagers out or closing off a section of the village, that is

24 billeting the -- or accommodating the soldiers away from the Croats, the

25 Bosnian Croats. Nothing like that happened. They were basically told to

1 go find accommodation for yourself with the enemy.

2 Now, once they were there, there was no proper supervision of the

3 soldiers, elements of whom came from the notorious 9th Brigade. And in

4 this we ask you to take into account the evidence of Mr. Arnautovic and

5 Kapur. Mr. Arnautovic of course was someone who was sent by Celo with the

6 soldiers to the 9th, and he was one of the people who was rounded up in

7 operation Trebevic. He was one of the people who was held, imprisoned,

8 and interrogated; he says mistreated. The people who were imprisoned, who

9 were detained after Trebevic were the worst. Some of the worst were in

10 Grabovica in September 1993. Notwithstanding that, there was absolutely

11 no supervision of the soldiers when they were there.

12 Now, Mr. Halilovic also failed to provide written orders to the

13 soldiers. His failure in that respect is graphically demonstrated by

14 Exhibit -- an order to attack drafted by Witness Behlo, a Defence witness,

15 for Enver Zeljagic on the 15th of September, 1993 in which Mr. Behlo found

16 it was necessary to include in an order: "I most strictly prohibit

17 looting, slaughtering, and killing of innocent civilians while prisoners

18 of war shall be treated according to the regulations on prisoners

19 of war."

20 Now, why did, Your Honours, Mr. Behlo feel it necessary to include

21 this specific clause in his orders? His testimony on this point was quite

22 telling. It was because he wished to prevent or to take some measures,

23 reasonable and necessary measures, to prevent any harm occurring to

24 civilians during a military operation. Mr. Behlo, an ABiH soldier, said

25 this type of clause was needed when soldiers would be fighting

1 in "inhabited areas." His testimony on that point is at page 41 and 42 on

2 the 28th of June this year.

3 Now, of course Mr. Behlo, and the Prosecution assumes the Trial

4 Chamber has seen similar orders because we certainly have in the course of

5 our work here, Mr. Behlo said he had seen that type of order or that sort

6 of clause before, but no where will you see that clause in the orders

7 before the Court that Mr. Halilovic issued, and Mr. Halilovic issued no

8 orders through his subordinates in writing directed to the soldiers of the

9 9th and 10th Brigades he brought from Sarajevo not to harm or kill

10 civilians and to respect conventions relating to civilians and prisoners

11 of war.

12 The final issue we have highlighted under failure to prevent is

13 that in relation to the remarks of Mr. Karic. Now, the Prosecution puts

14 its case on Mr. Karic's remarks as follows. There is evidence before the

15 Trial Chamber that Mr. Karic made inappropriate, if indeed, reprehensible

16 remarks in relation to accommodating the -- accommodating the soldiers

17 amongst the Croats. The Prosecution is well aware that Mr. Karic disputes

18 making those remarks and that the evidence is divided upon. This having

19 heard the evidence, the Prosecution would be entitled to make a positive

20 finding that he indeed did make those remarks.

21 Now, if the Prosecution -- if the Trial Chamber makes that finding

22 and also makes the finding, because there is some evidence that

23 Mr. Halilovic was present and heard them, the Trial Chamber should find

24 that Mr. Halilovic failed in his duty by failing to react appropriately

25 and in the strongest possible terms when Mr. Karic made his remarks about

1 throwing the civilians into the river. If that happened -- if the Trial

2 Chamber is satisfied that happened and it happened when it happened and

3 Mr. Halilovic was there, the only finding the Trial Chamber can make is

4 that it is a gross failure by Mr. Halilovic to react, condemn Mr. Karic on

5 the spot, discipline him, and make it quite clear to the assembled troops

6 that this was not to be countenanced and to immediately issue a

7 countermanding order.

8 The Prosecution being aware of the division of evidence on this

9 particular respect submits that the Prosecution case does not rely in any

10 way, whether or not it's pleaded in the indictment, on this particular

11 failure. The failures by Mr. Halilovic in every other respect are so

12 manifest that the Prosecution, in our respectful submission, has proven

13 its case beyond reasonable doubt that Mr. Halilovic did nothing, let alone

14 take any reasonable or necessary measures, to prevent the crimes in

15 Grabovica. We're saying the Trial Chamber can make a finding that the

16 Karic gesture didn't occur or make no finding on it or make no finding as

17 to whether or not Mr. Halilovic was there and still be well and truly

18 satisfied beyond reasonable doubt of all the other failures that we have

19 identified.

20 And in this respect it's important to note the case law, that

21 there is no rigid definition of what constitutes reasonable and necessary

22 measures. It has to be decided on a case-by-case basis. And the things

23 I've just outlined to the Trial Chamber are those which would be necessary

24 on a case-by-case basis according to the circumstances in Grabovica:

25 Troops of known criminal propensity being billeted or accommodated amongst

1 civilians and civilians of a different ethnicity.

2 Those are the particular circumstances pertaining to this

3 particular case. And when we've submitted before that the case law has

4 been on the ground as to what exactly a commander should do, I challenge

5 anyone to find a case which is on -- precisely on point here. In which a

6 court in the world has set out those particular measures. These measures

7 are all those which we say would have been necessary in the circumstances,

8 and they're not just obvious now but should have been and were obvious

9 very much so at the time.

10 The Defence has claimed at some length in its final trial brief

11 that the Prosecution's pleadings are inadequate and the indictment is in

12 some way defective. Now, the Prosecution responds, and if I could put up

13 document 5 which is the Blaskic Appeals Chamber decision through Sanction.

14 The Prosecution responds that we have met all the pleading requirements

15 identified by the Blaskic Appeals Chamber decision at paragraph 218 of the

16 judgement.

17 Your Honours can see before you the decision of the Appeals

18 Chamber, and I will just briefly go through paragraph 218 -- 218(a)

19 and (b). We must identify, (1), the accused is a superior. Well, we did

20 that in the indictment, the pre-trial brief and the opening. (2),

21 subordinate sufficiently identified. Yes, we did that. It was the 9th,

22 the 10th, the 4th, the Prozor Independent Battalion. We've identified

23 the -- sorry, number (3): Over whom he had effective control. Well,

24 we've identified those as well. That's the 9th Brigade which committed

25 the crimes in Grabovica and the Prozor Independent Battalion which

1 committed the crimes in Uzdol. (4), and for whose acts he is alleged to

2 be responsible. Same again.

3 Turning to (B): "The conduct of the accused by which he may be

4 found to have known or had reason to know the crimes were about to be

5 committed. Again, the Prosecution has done that in the indictment,

6 pre-trial brief, opening, and by the evidence in the documents we provided

7 to the Defence. And (ii),"the related conduct of others for whom he is

8 alleged to be responsible." Again, we have done this.

9 Turning to 219. With respect to the mens rea there are two ways

10 in which the relevant state of mind may be pleaded. "(i), either the

11 specific state of mind itself should be pleaded as a material fact; or

12 (ii), the evidentiary facts from which a statement of mind is to be

13 inferred should it be pleaded. Each of the material facts must be -- must

14 usually be pleaded expressly, although in some circumstances it may

15 suffice if they are expressed by necessary implication." We have done

16 that. In each and every case we have identified the units the form of

17 control the accused was exercising, who he was exercising it, the units

18 who were subordinated to him. We've identified their conduct, what they

19 did, who they were. We've identified the fact that the accused was on

20 notice, how he found out, and what he did or didn't do.

21 So in our respectful submission, we have completely complied with

22 everything set out in the Blaskic Appeals Chamber decision.

23 Another aspect of the pleadings, and I briefly touched upon this

24 earlier, very, very earlier, in the response to the Defence notice filed

25 on Friday is that the Defence is making very, very late complaint of these

1 issues. The Prosecution's submission is that these matters, those of

2 pleadings, particulars, are now res judicata between the parties. There

3 are four particular decisions in which the Trial Chamber and the pre-trial

4 Chamber, or five actually, have issued decisions which are binding on the

5 parties for the purposes of the trial. These were the one of the 1st of

6 April, 2003, the Defence motion pursuant to 65 ter (K) requesting the

7 Pre-Trial Judge to grant relief from waiver and to grant relief pursuant

8 to Rule 72. Well, what that basically was was a request to re-open the

9 proceedings and re-open the challenge to the indictment, which should have

10 been made within 30 days of the indictment being filed and doing it some

11 18 months later. The Pre-Trial Chamber ruled that they couldn't do it.

12 The 11th of July, 2003, there was a decision on the Defence complaint on

13 the Pre-Trial Chamber direction, which was a repetition where the

14 Pre-Trial Chamber repeated its order after another motion was filed.

15 There was also the decision of the Pre-Trial Chamber on the 16th of

16 December, 2003, on the Defence motion for particulars, and that decision

17 the Pre-Trial Chamber refused to certify in January -- for appeal in

18 January 2004.

19 The issue, the Prosecution submits, is closed for the trial. If

20 there's an appeal point, the Defence are perfectly entitled to take it,

21 but they can't take it now. The Pre-Trial Chamber has ruled -- the Trial

22 Chamber has ruled that they have been adequately provided with

23 particulars. The indictment is not vague and that they have everything

24 they needed to defend the case against them. To which, or course, the

25 question is always to be raised: What is, or what was the prejudice to

1 the accused? What possible prejudice could have accrued by the

2 combination of the Prosecution pleading its case, as the law entitles it

3 to in the pre-trial brief, the indictment, the service of statements and

4 documents, and the opening statement. There's no prejudice. They have

5 been fully informed and on notice of our case with adequate time to

6 prepare and adequate time to make any proper challenge that they wish to

7 make.

8 In this respect, I wish to refer the Trial Chamber to the

9 Hadzihasanovic interlocutory decision -- I'm sorry. The decision of the

10 11th of March, 2005, in Hadzihasanovic; that's document 10 of the Appeals

11 Chamber. The decision on joint defence -- interlocutory appeal of Trial

12 Chamber decision on Rule 98 bis motions for acquittal. And I refer the

13 Trial Chamber to paragraph 10 of that decision on page 5. And if you look

14 at the second sentence -- if you look at the first and second sentences,

15 if you go down to the second sentence where the Trial Chamber -- where the

16 Appeals Chamber says: "Given that it was clear at that time, the

17 Prosecution was not expressly pleading the nature of the armed conflict,

18 and that the Prosecution was proceeding on the basis that Article 3

19 applied to both international and non-international conflicts, it might be

20 inferred that the appellants saw a tactical advantage in waiting until

21 this time to appeal."

22 Now, the Prosecution submits that exactly the same considerations

23 apply and the Trial Chamber should treat all of the submissions in the

24 final trial brief of the Defence as to pleadings, particulars and the form

25 of the indictment. They've been raised and dismissed before and now

1 they've waited right until the end and are again trying to use it for

2 their own tactical advantage, which brings me to the issue of the failure

3 to plead the armed conflict of which the Defence has complained at page 1

4 of its brief.

5 Now, Ms. Chana has dealt with this in some -- has passed -- has

6 dealt with this in passing in relation to the type of conflict which must

7 be pleaded. The law is so crystal clear in relation to pleading of an

8 armed conflict that the Prosecution does not understand why this has been

9 raised again.

10 I again refer to the Hadzihasanovic decision, but this time the

11 Hadzihasanovic decision on -- the interlocutory decision on the challenge

12 to jurisdiction of the 16th of July, 2003. And I refer the Trial Chamber

13 to paragraphs 28 and 29 of that decision. If you look at the last line of

14 paragraph 28 in relation to additional protocols I and II. And then

15 paragraph 29: "The Appeals Chamber affirms the view of the Trial Chamber

16 that command responsibility was part of customary international law

17 relating to international armed conflicts before the adoption of

18 Protocol I." That was in 1979. "Therefore, as the Trial Chamber

19 considered Articles 86 and 87 of Protocol I were in this respect only

20 declaring the existing position, and not constituting it. In like manner,

21 the non-reference in Protocol II to command responsibility in relation to

22 internal armed conflicts did not necessarily affect the question whether

23 command responsibility ... existed as part of customary international law

24 relating to internal armed conflicts."

25 If you please go over the page to paragraph 30 where the Appeals

1 Chamber goes on. And they hold: "Were it otherwise, the Appeals Chamber

2 would have to uphold that, 'as argued by the Defence, it is not a crime

3 for a commander in an internal conflict to fail to prevent ... the

4 killings committed by his subordinates ...' The Appeals Chamber does not

5 consider that it is required to sustain so improbable a view in

6 contemporary international law; more particularly, it finds that such a

7 view is not consistent with its reasoning in the Tadic jurisdiction

8 decision the Celebici Appeals Chamber judgment or that of the reasoning of

9 the Trial Chamber in Aleskovski."

10 The Prosecution is mystified as to why this is being raised. What

11 possible -- apart from the fact that law is so clear, it does not matter

12 what sort of armed conflict it is, what possible prejudice could accrue to

13 the accused by not specifying whether it's an internal or international

14 armed conflict? The parties to the conflict were the same. The weapons

15 used were the same. The results were the same. This, in our respectful

16 submission, should be disregarded in its entirety.

17 The Defence has also raised the issue of the body of law which is

18 applicable. Now, this came up at one point during the trial, and Your

19 Honour Judge Liu, Presiding Judge, expressed some surprise when

20 Mr. Mettraux raised the issue of body of law, and Your Honour specifically

21 referred to the Tadic decision. In their brief at paragraph is -- at

22 page 163 on page 504 [sic], the Defence says that "we have not pleaded nor

23 established nor even sought to establish the Geneva Conventions were

24 applicable to this matter other than in relation to the customary image of

25 Common Article 3."

1 Well, that's enough. As the British military -- as the manual of

2 the law of armed conflict, that's the 2004 UK Ministry of Defence law

3 manual says, quote, paragraph 1.13: "When treaty law provisions are

4 declaratory of customary law, the rules they embody are binding on all

5 states even if they are not parties to the treaty concerned. In some

6 cases, a treaty as a whole may be viewed as customary law, while in other

7 cases only certain of a treaty's provisions may be so viewed."

8 Well, the Geneva Conventions, and specifically Common

9 Article 3(1), have attained customary status. Even if it hadn't been

10 adopted in Bosnia in 1992, as it was, it has attained customary status.

11 An indication of that is in the Nicaragua judgement of the International

12 Court of Justice, which is about to be put on to the screen, at

13 paragraph 218.

14 I'll just finish on referring Your Honours to this quote, if

15 that's okay.

16 JUDGE LIU: Well, I believe that we have to stop on time because

17 there's another sitting waiting for the use of this courtroom. And I

18 believe that all of us are familiar with the Jalapa case. And could we

19 come back in the afternoon, Mr. Re?

20 MR. RE: Of course, Your Honour.

21 JUDGE LIU: At this moment I have to remind the Prosecution that

22 they only have 40 minutes to finish their closing argument.

23 So we resume at 3.45 this afternoon.

24 --- Luncheon recess taken at 1.46 p.m.

25 --- On resuming at 3.47 p.m.

1 JUDGE LIU: Well, let's continue.

2 Mr. Re, please continue.

3 MR. RE: There was just -- before the break, there was just one

4 thing I wanted to refer Your Honours to. Only -- if only to dispose of

5 it, as I hope Your Honours possibly can in your judgement, and that was

6 paragraph 218 of the Nicaragua judgement specifically at paragraph --

7 page 114 of the ICJ reports where if you could just turn over the page to

8 the second full -- the first full paragraph beginning "Article 3."

9 The line to which I wish to refer Your Honours is the second line

10 which says: "There is no doubt that in the event of international armed

11 conflicts, these rules also constitute a minimum yardstick in addition to

12 the more elaborate rules which also apply in international conflicts."

13 I would very much invite Your Honours to refer to that in the

14 judgement.

15 The part of the respondent -- sorry, the accused's submission to

16 which I am responding at the moment is under the heading 3.5, failure to

17 punish -- prevent and punish the law, which is at pages 5 -- at pages 162

18 to 163. Paragraph 504, Mr. Halilovic has said: "The Prosecution has not

19 pleaded, has not established, and has in fact not even sought to establish

20 the Geneva Conventions were in force in Bosnia at the time."

21 Now, apart from the fact that -- in fact, on Sanction, if I could

22 have the next one, the Swiss one. Apart from the fact that the ICJ

23 decision and the Tadic Appeals Chamber decision on jurisdiction basically

24 dispose of that argument anyway, refer Your Honours to the document --

25 it's not in evidence but it doesn't need to be. It's a public document

1 which is from the Swiss government. It's a notification to the

2 governments of the state parties to the Geneva Conventions of 12th of

3 August, 1949 for the protection of war victims. Which states in the first

4 paragraph: "On the 31st December 1992, the Bosnia deposited with the

5 Swiss Federal Council a declaration of succession concerning the four

6 conventions as well as the additional Protocols I and II." It's dated the

7 17th of February, 1993

8 It's an open document. Your Honours of course are entitled to

9 refer to it.

10 Now, of course, if I could move to the Tadic judgement, the

11 interlocutory -- sorry, the appeals decision on jurisdiction. I

12 specifically refer Your Honours to paragraphs 132 and 134. And both these

13 sections, and if you look at the middle of paragraph 132 it says: "It

14 should also be noted by a decree, a force of law, that on the 11th of

15 April, 1992, Bosnia adopted the Criminal Code of the former Yugoslavia,"

16 and then refers -- which had of course implemented the two additional

17 protocols of 1977.

18 Then if you go to paragraph 134 the Appeals Chamber expresses a

19 very firm view on the fact that: "Individual criminal responsibility was

20 imposed by virtue of Yugoslavia's ratification of those covenants.

21 So in our submission that is something can be very, very easily

22 disposed of, and perhaps it might even be one of those matters the Defence

23 might like to redact from their final trial brief when they get to it.

24 The next matter which they might possibly like also to redact from

25 their final trial brief is the arguments they put in on levee en masse. I

1 just want to briefly refer Your Honours to the basic authorities. The

2 first one is where it appears, which is Article 4, paragraph 6 of

3 Geneva 3, that's on prisoners of war. And it just says -- it refers to

4 inhabitants of a non-occupied territory, "who on the approach of the enemy

5 spontaneously take up arms to resist the invading forces."

6 If that could be broadcast in Sanction, please. Paragraph 6 of

7 the Geneva Conventions Article -- Geneva 3. Number 2. And the commentary

8 in the Geneva Conventions -- or the ICRC commentary in relation to

9 paragraph 6, en masse levees says this: "The provision is not applicable

10 to inhabitants of the territory who take to the marquis [sic] but only to

11 the mass movements which face the invading forces." This is on page 67

12 and 68. "With the arms available today, the case is not likely to arise in

13 the open country side but it is more probable in the built-up area where

14 even the rudimentary methods are of some value."

15 Now, the crucial part of this commentary is page 68 of the

16 commentary, which I'm sure is coming up on our screen any second. It

17 should, however, be emphasised that mass levee can only be considered to

18 exist during a very short period, that is during the actual invasion

19 period. If resistance continues, the authority commanding the inhabitants

20 would have taken up arms or the authority to which they profess allegiance

21 must either replace them by sending regular units or incorporate them into

22 its regular forces. Otherwise the mass levee could not survive the total

23 occupation of the territory which it has tried in vain to defend."

24 The -- again, these matters have both been referred to in more

25 detail by my colleagues. I'm just pointing Your Honours to the law. And

1 the Prosecution just simply invites the Trial Chamber to if it remains in

2 the brief after redaction to dismiss it in a line or two. There is simply

3 no evidence whatsoever of a levee en masse.

4 The next argument I turn to in the Defence's brief which in the

5 Prosecution's submission is basically wrong in law, and I ask for Sanction

6 to display paragraph 77 of the Blaskic Appeals Chamber decision which is

7 document 5, is that of causality. That appears at pages 189 and 190 of

8 the brief. Paragraphs 587 through 589 at which the Defence submits that

9 the Defence's position under customary international law is that "it

10 requires a causal link between the failure and the crimes or consequences

11 thereof."

12 Unfortunately, the Defence have quoted no supporting authority to

13 support this, we say, rather bold assertion that causality is required.

14 The only authorities we can find in our researches, an article by Otto

15 Trivtera [phoen] four years ago and mentioned by learned co-counsel,

16 Mr. Mettraux, in his own book. And the Prosecution submits that mention

17 in one article and one book cannot make -- cannot transform this into a

18 doctrine of customary international law, and especially not

19 retrospectively.

20 I refer you to paragraph 77 of the Blaskic Appeals Chamber

21 judgement, which is referred to at paragraph at 589 and footnote 1214

22 where the Appellant -- sorry, why did I say Appellant? The accused, I'm

23 sorry, submitted that Blaskic said that the Appeals Chamber "was not

24 satisfied persuaded by the Appellant's submission on the existence of

25 causality" between a commander's failure and the crimes of his

1 subordinates.

2 Unfortunately, Your Honours can see when the full quote is put up

3 before you on the screen in front of you that the full story is something

4 completely different. The quote reads: "The Appeals Chamber is therefore

5 not persuaded by the Appellant's submission that the existence of

6 causality between a commander's failure to prevent subordinates' crimes

7 and the occurrence of these crimes is an element of command responsibility

8 that requires proof by the Prosecution in all circumstances," in all

9 circumstances, "of a case."

10 And the next line is a crucial one which was omitted from the

11 Defence brief. "Once again, it is more a question of fact to be

12 established on a case-by-case basis than a question of law in general."

13 That's, in our respectful submission, is and has to be the law,

14 and Your Honours can very, very easily dispose of that argument if it

15 survives the editing process.

16 The next one I refer to is the argument of acquiescence which is

17 at page 199 and paragraph 616 of the brief at which the Defence again

18 bravely and boldly assert that the Prosecution has failed to establish any

19 failure that might be attributable to Mr. Halilovic that would have been

20 intentional and deliberate so as to amount to acquiescence on the part --

21 on his part of the crimes charged as required by Article 7(3). Again,

22 this is something for which it is absolutely devoid of any authority,

23 opinion juris, state practice, customary law to support this assertion

24 that acquiescence is required to establish command responsibility. The

25 Prosecution submits the position is clear that no endorsement is indeed

1 necessary. The international humanitarian law imposes positive duties on

2 commanders, a breach of which can result in criminal liability. And if

3 you were to accept this argument it would basically transform it into a

4 charge under Article 7(1). It is very similar to that of causality.

5 Another argument which -- or another section or part of the

6 Defence brief which again is just wrong is at page 131 at paragraph 412.

7 In that particular paragraph, learned Defence counsel express their "most

8 serious reservations" as to whether back in 19 -- September 1993 customary

9 law could have supported the conviction of command for any special intent

10 crimes committed by his subordinates where he did not himself possess or

11 share that special mens rea."

12 That's wrong in law for several reasons. First the Appeals

13 Chamber has quite distinctly decided that it does in the Krnojelac

14 decision. And secondly, the crime charged here, murder, is not a special

15 or specific intent crime. There are only three; that's genocide,

16 persecution, and torture, and murder isn't one of those. That's another

17 argument or section, entire section which the Trial Chamber should have no

18 difficulty in dismissing outright.

19 Another argument which I wish to refer to in passing is page 24

20 which is paragraph 80 of the Defence brief where the Defence attack the

21 Prosecution under the heading of Prosecution's failure to seek to identify

22 the perpetrators of the crime and at paragraph 79 and 80 make a great deal

23 of the fact that the Prosecution did not attempt to show photographs to a

24 witness in an attempt to have the witness identify the perpetrators.

25 Well, what's wrong with that particular submission? What is wrong

1 with it is it would be absurd, ludicrous, it would be an -- apart from the

2 unreliability of photographic evidence generally, of identification

3 evidence, the Defence cannot seriously be suggesting that years after the

4 event we would be showing someone who was of very, very tender years at

5 the time, witnessing something very, very traumatic, photographs to assist

6 them in ascertaining the identity of someone who has already come to the

7 Tribunal to give evidence. There is not a shred of doubt as to who killed

8 the family of that witness. The Trial Chamber has heard direct evidence

9 of that. And the Defence even concedes the deaths of those people in its

10 brief as breaches of international humanitarian law and by members of the

11 9th Brigade. Again, that is something which the Trial Chamber should have

12 no difficulty, in our submission, in dismissing outright.

13 I'd also like to move now to Blaskic paragraph 22 -- sorry,

14 paragraph 62, if we could move to that one. Another argument which is

15 wrong is at paragraph 409 of the Defence brief where the -- I'm sorry.

16 403, my apologies. Page 127 where the Defence say, the bottom of the

17 paragraph: "It is therefore not sufficient that the commander knows in

18 general terms that the crimes have or may be about to be committed by his

19 subordinates."

20 The reason why that is wrong in law is that the Blaskic Appeals

21 Chamber has set out at paragraph 62 of its judgement that -- I won't read

22 the whole thing. I'll just put it in front of Your Honours and you can

23 see it, in the interests of time. Your Honours can see from the paragraph

24 which is listed there that there is absolutely no requirement suggested

25 that the -- a commander should know in general terms about what -- what

1 crimes had been -- that it was not sufficient that they knew in general

2 terms the crime had been committed. The question is whether or not the

3 person had the knowledge which puts them on notice. It's nothing to do

4 with generality. It amounts very much to the specifics of the

5 circumstances, and it must be decided on a case-by-case basis.

6 Another suggestion in the Defence brief we wish to basically rebut

7 is that at paragraph 560 on page 179 where the Defence suggests that

8 somehow the Prosecution is suggesting that Mr. Halilovic should have been

9 in charge of the investigation and taken all sorts of measures such as

10 interviews, on-sight visits, exhumations, et cetera, look, we'll put this

11 down on the part of the Defence as rhetoric. We have never suggested

12 that. We certainly don't suggest that the Chief of Staff, the commander

13 of an operation, should personally go down on to the ground and do all the

14 things that investigators, trained investigators, should be doing. Mr.

15 Halilovic's duties were quite clear. There is no suggestion that he

16 should have been personally in charge of taking fingerprints or digging up

17 bodies or anything like that.

18 Another issue which has been touched upon in the Defence brief is

19 that of mistake of law where the Defence is suggesting at page 168, that's

20 paragraph 521 of the brief, that this may well operate in Mr. Halilovic's

21 case and it's something that the Prosecution may well have to negative.

22 Mr. Halilovic of course, in his book which is Exhibit 281 at page 6,

23 himself basically overrides any suggestion that he could have been

24 suffering from any mistake of law if indeed it could apply where he

25 said: "That is why I personally found the stains on the Bosnian

1 consciousness, such as the murders of the FRYs in Funista [phoen], the

2 Oristovic [phoen] case, the events in Uzdol and the Grabovica case that

3 much more difficult to take was precisely because of this that I insisted

4 on upholding law and order, which in my view requires a thorough

5 investigation and detection in judicial punishment of the perpetrators."

6 For the most recent statement that we can find of mistake of law

7 is put on the screen very briefly firstly Cassese's International Criminal

8 Law. This is paragraph 13.4. If Your Honours can just see the very

9 bottom, the last paragraph: "It is submitted that mistake of law may be

10 pleaded as a valid excuse not when the offender was unaware of the

11 unlawfulness but when: (i) he had no knowledge of an essential element of

12 law referred to in the international prohibition of a certain conduct;

13 (ii) this lack of knowledge did not result from negligence; (iii)

14 consequently the person, when he took a certain action did not possess the

15 requisite mens rea."

16 Please put the next one up which is from the British manual. We

17 clearly submit that known of those three elements identified by Cassese

18 could possibly be applicable in this particular case, especially when

19 Mr. Halilovic himself in the Defence submission says that after the event,

20 even if it might have been years after the event, was demanding an

21 investigation into the event. And in his inspection team report was

22 indeed demanding the replacement of certain commanders for various

23 infractions.

24 If you turn to the latest authority which we can find on this

25 particular area, ignorance of the law, we direct Your Honours to

1 paragraph 16.43, and this is the UK military manual which

2 says: "Ignorance of the law is no excuse, but if the law is unclear or

3 controversial, an accused should be given the benefit of that lack of

4 clarity by the award of a lesser or nominal punishment." Again, that is

5 something which just does not apply here.

6 I'd also refer Your Honours to two specific exhibits in this

7 regard, and that is Exhibit P103, which is the decree relating to the

8 implementation of the international laws of war in the Army of the

9 Republic of Bosnia and Herzegovina, and specifically paragraphs 1 and 2.

10 That was as Your Honours will recall President Izetbegovic's decree of the

11 23rd of August, 1992, stating that the armed forces of the republic will

12 implement the international laws of war, including international

13 conventions and treaties, Geneva Conventions, of course, customary

14 international law, general principles of international law of war, and its

15 publication of course in the army gazette on the 5th of December, 1992,

16 which is Exhibit P104. And paragraph 2 states: "The parties to the

17 conflict bear responsibility for grave breaches for international -- of

18 international law of war no matter how the principles of law are

19 violated," and so on.

20 It would be inconceivable that Mr. Halilovic, an experienced JNA

21 officer, well-versed in the laws of war as part of his training and indeed

22 the Chief of Staff and the person whom the Defence are keen to put forward

23 as one who attempted to do everything he could to ensure the laws of war

24 were obeyed in Bosnia was not aware of the duties of a commander under

25 international humanitarian law.

1 I turn to the two -- the failures to prevent in Grabovica and

2 Uzdol. Firstly, Grabovica. The Prosecution submits that the evidence has

3 very clearly established that Mr. Halilovic received actual notice, at

4 least on the evening of the 9th of September, 1993. Now, of course the

5 Defence has made complaint again about what the indictment says, but as we

6 said at the very beginning of the case when Your Honour asked -- Your

7 Honour Judge Liu asked questions, all we can say is there may be

8 conflicting evidence as to dates and times, and it is what is established

9 by the evidence at the end of the case that is important. The accused has

10 been on notice that we say he was informed of -- received actual notice of

11 the crimes very soon afterwards. The evidence in indeed his own book

12 makes it quite clear that this was on the very earliest the 9th of

13 September, 1993. That's 1993. And that of course was the very day on

14 which the murders were still occurring.

15 Now, I digress for a moment here. Another point in the Defence

16 brief is that we plead that the murders occurred on the morning but the

17 evidence show that some of them were still occurring in the afternoon.

18 Again, we say, Well -- the trouble -- I mean, evidence never comes

19 completely up to -- never completely follows an indictment. It cannot.

20 You have to allow for the vagaries of memory and people giving their

21 evidence as to times and places. In any event, it makes no difference in

22 our submission whether Your Honours find the murders continued into the

23 afternoon or finished on the morning of the 9th of September. The issue

24 here is when Mr. Halilovic found out. The evidence is fairly clear that

25 he had to have found out on the 9th, the day of the murders.

1 Having done so, he had a duty to take reasonable and necessary

2 measures. And of course as we've already outlined, these must be decided

3 on a case-by-case basis, and there's no definition of what he could or

4 should have done; it depends very much on the circumstances. The evidence

5 has established that as the commander of the inspection team and of the

6 forces in the area at the time, he had the material ability, he had

7 military police at his disposal, there were two platoons, the 6th Corps,

8 which he could have utilised. District military courts were operating.

9 At the very minimum he should have ordered a proper investigation. He

10 should have ordered the military police to assist. He should have ordered

11 that military police be co-opted. He should have ordered the crime scene

12 secured. He should have reported the crime to his commander, that's

13 Delic, and sought all assistance necessary to do all of those things, to

14 ensure that the perpetrators were punished.

15 Mr. Halilovic knew on the 9th of the September who the likely

16 perpetrators were; everyone did. Everyone in Jablanica knew it was the

17 troops from Sarajevo, the very people who Mr. Halilovic had brought there.

18 Instead of doing what he should have done, he gave Mr. Dzankovic only the

19 vaguest of orders and that was orally and that was only once and without

20 any follow-up at all. This, in the Prosecution's submission, constitutes

21 a clear breach of his duties to punish.

22 As a result of his only asking Mr. Dzankovic in the vaguest

23 possible terms to find out what had happened, the Prosecution has

24 established that no proper investigation was carried out by anyone in

25 military security or the inspection team, there were no attempts made, no

1 proper attempts were made to secure the crime scene, no attempts were made

2 to interview eyewitnesses or any of the perpetrators. And it wouldn't

3 have been hard, and you've heard the evidence, to find out exactly who

4 those people were. No members of the units possibly responsible for the

5 murders were interviewed. The evidence was no one was interviewed until

6 1998. No forensic investigation was performed, and the evidence was the

7 bodies were still there weeks later with skulls and bones sticking out of

8 the ground, and the smell was so great that concern was raised that they

9 should go -- people should go and cover them up. No attempts were made to

10 arrest the perpetrators, and again it would not have been hard to find out

11 who they were. No one was given the task of overseeing the investigation,

12 and that was Mr. Halilovic's role, to give someone the task of overseeing

13 the investigation and to ensure that it was followed through. No formal

14 lines of responsibility for investigating were ever put in place. The

15 military did not formally request assistance from the civilian police.

16 And as Your Honours are aware, no one was actually apprehended until many,

17 many years later. Most of those responsible for the crimes have never

18 been prosecuted, never brought to justice. The only two who have been

19 prosecuted were Mr. Sakrak, who gave evidence here, and Mr. Bahota

20 [phoen]. And that's it. Clearly many more members of the 9th Brigade

21 were involved, and it would not have been difficult to find out who they

22 were, either then on the day, or in the days or weeks afterwards.

23 But, and this goes -- this goes to Mr. Halilovic's mens rea.

24 Knowing of the involvement of members of the 9th Brigade in the massacres,

25 these gravest of war crimes in Grabovica, what did he do? Showing his

1 attitude to how he viewed troops under his command committing massacres of

2 civilians, once they went back to Sarajevo he didn't order -- ask for them

3 to be arrested or segregated there or be investigated there, no; he

4 actually ordered their return -- Celo and his men ordered their return -

5 and Caco - back to Herzegovina on the 24th of September, 1994. While

6 others in the supreme command were planning the arrest of Celo and Caco,

7 Mr. Halilovic was planning to use them again in combat. The only

8 inference in totality of this is that Mr. Halilovic wanted just to ignore

9 what had happened in Grabovica; he was not interested. He did not want to

10 investigate. He did not care. He just wanted to put it all behind him

11 and get on with the combat in Herzegovina. To allow this to happen cuts

12 across the very heart of international humanitarian law. Immediate

13 measures must be taken to punish the perpetrators of grave crimes against

14 civilians.

15 And knowing what his subordinates had done in Grabovica, that gave

16 Mr. Halilovic added inquiry notice that the moment he heard that anything

17 similar might have happened in relation to other soldiers under his

18 command, he had an added impetus to do something to take immediate action,

19 and that is exactly what he should have done in Uzdol.

20 Now, the Trial Chamber is entitled to use the same evidence of

21 command and control in relation to Grabovica, the orders of issuing orders

22 to subordinates who obeyed them, the Neretva map which is to my side there

23 showing the scope and the size of the operation, the fact that he issued

24 orders directly including those to Enver Buza. You're entitled to use all

25 of that to find that the Prozor Independent Battalion was directly

1 subordinated to Mr. Halilovic at the time they committed these gravest of

2 war crimes. And if so, he had a duty to punish their criminality.

3 The evidence shows that Mr. Halilovic found out within days that

4 the allegations -- it wouldn't have been difficult to find that out

5 either. They were broadcast around the world. Kate Adie broadcast it on

6 the 15th, the day afterwards. As Witness J said, people were talking

7 about it or not talking about it. It was obvious something had happened.

8 It was being broadcast in the Croatian media. Mr. Halilovic could not

9 have not known what was alleged to have happened in Uzdol by very virtue

10 of the fact that he was there; but there's positive evidence that he found

11 out about it within days.

12 What did he do about it? Well, the evidence establishes that he

13 did nothing about it. Dzankovic who he tasked in the vaguest possible way

14 to look into what had happened at Grabovica didn't even know about it

15 until he returned to Sarajevo. He 6th Corps military police weren't

16 utilised. Eminovic from the 6th Corps wasn't properly -- wasn't utilised.

17 The evidence was that there wasn't any sort of investigation at all.

18 Witness J's evidence, at best, was incoherent but at worst was of

19 nothing more than a whitewash or a cover-up by Enver Buza which is

20 reflected in his report which went all the way up to the supreme command

21 and was adopted even by Mr. Jasarevic on its way to the presidency. Our

22 submission is that the only inference from the totality of the evidence

23 available is that Mr. Halilovic as the commander of the soldiers in

24 Grabovica did absolutely nothing to punish their criminality.

25 A miscellaneous matter I wish to refer the Trial Chamber to is the

1 Defence submissions at pages 700 -- sorry, paragraph 770 of the brief

2 onwards. It's under the -- page 240, paragraph 770 to 784. In the

3 Prosecution's submission, there are -- the Defence has stooped to a new

4 low in some of the submissions they have made there, particularly at

5 paragraph 779 when they refer to the conduct of the investigation and

6 related matters. And once again, they have reared the bogeyman of Mr.

7 Nikolai Mikhailov and alleged that he and another Prosecution officer were

8 fired from this office. At the moment that matter is a matter of

9 litigation in the Appeals Chamber, where the Prosecution has asked the

10 Appeals Chamber to direct the Defence to redact those allegations, those

11 unsourced and untrue allegations from the appeal brief they filed. That

12 matter is awaiting determination.

13 In the Prosecution's submission, these allegations form no part of

14 the case. They should not be in this brief. We will be filing ourselves

15 a motion to strike them from the brief in writing within the next few

16 days. And we ask the Trial Chamber to disregard these in their entirety

17 and also to disregard the allegations put in these vague and couched

18 terms at paragraph 782 of mysterious disappearances of things from the

19 Prosecution archives and no less mysterious was the floor translation and

20 so on. These form no part of proper, civilised legal discourse. These

21 matters have all been properly answered. They should not rear their ugly

22 heads yet again at the end of the Defence final trial brief.

23 The last paragraph is 784: "The above matter is a very serious one

24 insofar as it might constitute an abuse of process-- of the process. The

25 Trial Chamber should carefully consider evidence suggesting misconduct on

1 the part of Mr. Mikhailov." Our response to that is, well, if the Defence

2 wish to bring an allegation of abuse of process they should do so. They

3 should file an motion before the relevant body alleging contempt or abuse

4 of process and not just make these throw-away allegations at the very end

5 to contaminate, pollute, in our submission, the minds of the Trial

6 Chamber. This should be completely disregarded.

7 The -- I won't address at any length at all on the matters of

8 sentencing Mr. Halilovic. The Prosecution submits that we have

9 established beyond reasonable doubt the following. The 9th and 10th

10 Brigades had committed numerous crimes against the civilian population in

11 Sarajevo in 1993. Mr. Halilovic was well aware of their reputation and

12 the crimes committed by these brigades. In August 1993 he was appointed

13 to lead an inspection team with authority to command combat in

14 Herzegovina; that's Operation Neretva. As the commander of the team he

15 subordinated units to his command. He issued orders that the units

16 subordinated obeyed. He ordered that soldiers of the 9th and the 10th be

17 subordinated to him in Operation Neretva. Soldiers of the 9th were

18 billeted and accommodated with Bosnian Croat civilians in Grabovica.

19 Mr. Halilovic took no steps to prevent these soldiers from committing

20 crimes against those civilians. On the 8th and 9th of September, 1993,

21 the soldiers murdered 27 Bosnian Croat civilians. Mr. Halilovic was

22 notified of the crimes on the 9th, and he knew by that day that it was

23 most likely the 9th who had committed the crimes. Knowing that, he failed

24 to have the crimes properly investigated or punished.

25 We've also established that on the 13th of September, 1993, he

1 ordered personally the Prozor Independent Battalion, subordinated to his

2 command, to attack the HVO-held village of Uzdol. The following day in

3 the course of the combat, members of the Prozor Independent Battalion

4 murdered 29 Bosnian Croat civilians. And finally the Prosecution has

5 established that Mr. Halilovic took no steps at all to have those crimes

6 investigated and the perpetrators punished while the soldiers remain

7 subordinated to his command, and indeed no one has ever been prosecuted to

8 these days -- to this day. The Prosecution submits that it has proved its

9 case beyond reasonable doubt, and the only verdict available to the Trial

10 Chamber is one of guilt.

11 The appropriate sentence, we submit, in all of the circumstances

12 is one of ten years of imprisonment. We take no issue with any of the

13 matters raised in mitigation by Mr. Halilovic in his brief. The matters

14 are all properly pleaded and referred to in his brief. But having said

15 that, ten years is the appropriate sentence, and we ask is the Trial

16 Chamber to convict the accused and to sentence him to ten years'

17 imprisonment.

18 JUDGE LIU: Thank you very much indeed.

19 Mr. Weiner, do you have anything to add at this stage?

20 MR. WEINER: Nothing, Your Honour. That's our case. You told us

21 three and a half hours. We went three hours and 26 minutes. Thank you.

22 JUDGE LIU: Thank you.

23 Well, since there's a lot of works of authorities cited during

24 your closing argument, could I ask whether you are going to file the book

25 of authorities at this stage?

1 Yes, Mr. Re.

2 MR. RE: Most of them are ICTY judgements. We will certainly file

3 the other authorities we've referred to. If Your Honours want the ICRC

4 commentary, we can file that, but definitely the other ones we'll file.

5 JUDGE LIU: Well, I think that you mentioned, for instance,

6 Professor Cassese's book of international criminal law as well as the

7 latest publication of the distinguished Defence counsel. But if so, I

8 believe that you have to file it. Only indicate the page number or

9 paragraph number rather than the whole context. We want a kind of

10 catalogue document rather than all the contents, because we could find

11 them easily in the library or in the archives.

12 MR. RE: We will do that.

13 JUDGE LIU: Thank you. Thank you very much indeed.

14 Well -- and if you -- when do you think you would be ready to file

15 it? How about within this week?

16 MR. RE: Certainly. The only reason why we haven't done it before

17 was of course we're responding to arguments in the Defence brief, those

18 particular matters.

19 JUDGE LIU: Well, you may file it within a week's time.

20 Well, there are two matters that I would like to hear the parties.

21 The first issue is about the Defence motion for the admission of the

22 exhibit, that is MFI 221 which was filed on the 12th of August. Could we

23 ask the Prosecution to respond to this motion?

24 MR. WEINER: We have no objection, Your Honour.

25 JUDGE LIU: Well, if there's no objections, this document is

1 admitted into the evidence. It is so decided.

2 The next issue is about Prosecution's motion to admit Sefer

3 Halilovic's letter to President Izetbegovic on the 1st of May, 1995, into

4 evidence, filed on the 29th August. Are there any objections on the part

5 of the Defence?

6 MR. MORRISSEY: No, Your Honour, there are none. That document

7 reflects almost word-for-word Exhibit P281, the Halilovic book. And Your

8 Honour will observe that comparing the two documents, one seems to be

9 based on the other. So we don't object to that being tendered now and

10 that's what we say.

11 JUDGE LIU: Thank you very much for your cooperation. This

12 document is admitted into the evidence. It is so decided.

13 MR. MORRISSEY: I'm sorry, Your Honour, could I raise one other

14 potential exhibit?

15 JUDGE LIU: Yes.

16 MR. MORRISSEY: Very recently material was provided to the

17 Defence. We've given that to the Prosecutor. We've asked them to give us

18 an indication as to whether they would oppose it being admitted. It's

19 very late to do this, but it's a small document. The Prosecutor indicated

20 a general position about it that was favourable but hasn't committed to it

21 yet, and I don't think I should demand an answer now. But can I just

22 indicate that tomorrow morning it may be that we -- perhaps I don't

23 need --

24 MR. WEINER: I can make it much quicker. No objection to that

25 document.

1 JUDGE LIU: Well, you have to inform me which document so the

2 registrar could --

3 MR. MORRISSEY: Your Honour, I just wonder if that could be done

4 first thing tomorrow morning. I don't know that I have a -- I had a copy

5 of it and I wrote inadvertently all over it. I'm sorry.

6 JUDGE LIU: Yes.

7 MR. MORRISSEY: Therefore, perhaps if we could formally deal with

8 that matter tomorrow morning.

9 JUDGE LIU: Thank you.

10 And another issue is that the Prosecution filed a motion for the

11 provisional release of Mr. Halilovic. I wonder whether the --

12 MR. WEINER: The Defence did that. The Prosecution didn't file

13 any motion.

14 JUDGE LIU: I'm sorry about that. I'm sorry about that. I wonder

15 if the Prosecution is in the position to make a reply orally?

16 MR. WEINER: I spoke with Madam del Ponte today, the Prosecutor,

17 and it is her view that as a matter of office policy after a case has been

18 completed but prior to a judgement being issued, our office will oppose

19 all requests for provisional release. It is her view that it is at that

20 time, prior to judgement, that a defendant would most likely disappear or

21 flee from the jurisdiction or flee and go into hiding. As a result, it is

22 her view and it's her policy, it's the policy of the office, that we

23 oppose any requests for provisional release at that time.

24 It was further the view that recently a number of cases have -- a

25 number of Chambers have allowed provisional release in various situations.

1 And we are an International Tribunal, the world is watching and the world

2 is watching the type of justice that is going on here. And it is the view

3 of the office that it is improper -- I shouldn't -- actually -- improper,

4 it's not the right choice that is being taken to allow people to -- allow

5 defendants to leave prior to the judgement. It is the view that the

6 public is watching and the public sees people charged with very serious

7 crimes and they see these people are just being released. And what it

8 does is the Tribunal loses the confidence of the public with such action.

9 So as I said, I have spoken with the Prosecutor today, and she has

10 requested that I recommend to this Court that the request for provisional

11 release be opposed and that it be denied on those bases.

12 Thank you.

13 JUDGE LIU: Well, suppose this Trial Chamber grants the motion by

14 the Defence for the provisional release. Could I regard your submission

15 as a request for delay of the execution of that order?

16 MR. WEINER: Under the latest view of the Appeals Court, there's

17 no longer a need for the delay, you can appeal directly. It's not longer

18 required that we request a stay pending -- pending a hearing -- a request

19 to leave from the Appeals Court.

20 JUDGE LIU: Thank you.

21 MR. WEINER: So it's not necessary, if that's what the Court

22 wishes. However, once again, it's our request that not only do you

23 delay -- should you delay allowing him provisional release but that you

24 refuse to grant his request for provisional release.

25 JUDGE LIU: Thank you.

1 Well, any other matters? Yes, Mr. Morrissey.

2 MR. MORRISSEY: Well, no other matters arising out of that. I

3 take it Prosecutor have put forward a policy position, and it's correct

4 for them to communicate a policy position to you if that's the way they

5 see it. It didn't relate to Mr. Halilovic personally directly in any way.

6 Other than that, Your Honours, we will be ready to proceed

7 tomorrow. We don't have Sanction. We'll provide some -- some printed

8 copies of exhibits that are in the case, but we'll also provide the

9 reference of those so that they'll be uploaded in the e-court system, and

10 we'll give a copy to the Prosecutors, of course. I undertake to finish

11 within time.

12 And, Your Honours, I just wanted to ask if -- I'm sorry to trouble

13 the Tribunal with this. But currently I have the personal commitment to

14 fly home to my family the following day, and I wonder -- I understood that

15 the position was that we would complete the reply -- such responses, as

16 they have to be, that we would complete those tomorrow as well. Might I

17 inquire if that's the correct position?

18 JUDGE LIU: Well, we'll request an extra sitting tomorrow

19 afternoon and try to finish the whole proceedings.

20 MR. MORRISSEY: I would be very grateful, Your Honour. Thank you.

21 Those are the matters. Thank you.

22 JUDGE LIU: Thank you.

23 Well, I believe that's all for today, and we'll resume tomorrow

24 morning at 9.00 in the same courtroom.

25 --- Whereupon the hearing adjourned at 4.37 p.m.,

1 to be reconvened on Wednesday, the 31st day of

2 August, 2005, at 9.00 a.m.

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