Tribunal Criminal Tribunal for the Former Yugoslavia

Page 28239

 1                          Thursday, 14th December 2000 2                          [Prosecution Closing Statement]

 3                          [Open session]

 4                          [The accused entered court]

 5                          --- Upon commencing at 9.05 a.m.

 6            JUDGE MAY:  Yes, Mr. Nice.

 7            MR. NICE:  Your Honour, I suppose the first thing I ought to do

 8    today, after a year and a half of trial, is to pay tribute to the

 9    interpreters and to thank them for putting up with me and being as helpful

10    and efficient as they have for so long.  I hope they can tolerate another

11    few hours, and I promise that I will do my best to identify the main verb

12    in a sentence before the number of subclauses requires them to do it for

13    me.  Thank you.

14            I've got quite a lot to do today in a limited amount of time, and

15    no doubt I shall have to be selective, as time passes, about what

16    remains.  We received the Defence briefs last night, of course, and no

17    doubt I would have read each and every word of them had I been a somewhat

18    faster reader.  In the event it's been possible, of course, to have a look

19    at some parts of them, but not all, and as the Chamber will know from a

20    letter I wrote a couple of days ago, we may seek to have half an hour or

21    so of our time reserved for rebuttal, particularly in light of the fact

22    that we haven't been able to even read, let alone address, their arguments

23    in advance, but perhaps the Chamber could give further thought to that in

24    the course of the morning.

25            JUDGE MAY:  I haven't seen the letter.

Page 28240

 1            MR. NICE:  I'm sorry, Your Honour.  Well, I sent a letter to the

 2    Defence, copied to Chambers, but perhaps that can be considered over the

 3    break.

 4            JUDGE MAY:  Yes.

 5            MR. NICE:  This is the first case involving a senior politician to

 6    reach a conclusion here at the ICTY.  This is not the time and place for

 7    detailed analysis of any or all of the evidence.  That simply wouldn't be

 8    possible.  And as the Chamber will know from the documents that we've

 9    provided, we've reached the position where we think it's appropriate for

10    the brief, that is, the summary of our position itself, to be

11    comparatively short.  And what we have provided you - and I hope this is

12    helpful - is a brief associated with other documents which are, in

13    reality, tools, which I'll explain further as we go through the morning.

14    The tools are necessary because the volume of material is such that some

15    human brains, and certainly mine, couldn't conceive of remembering the

16    detail without the assistance of machinery to guide us through it.

17            You'll discover that I'm only asking the Judges really to read in

18    full perhaps three and a half of the documents that we've submitted, the

19    remaining material being available one way or the other for your

20    assistance or the assistance of your staff, should you find it helpful

21    documentation.

22            Before I go through some of our annexes - those are the tools I've

23    referred to - can I say a word about how I propose to deal, and to deal

24    shortly, with Defence witnesses that have been called.  Typically, at the

25    end of a case, an advocate is in a position to analyse each witness on one

Page 28241

 1    side or the other for content, reliability, credibility.  That, of course,

 2    would simply not be possible today and it wouldn't be helpful for you to

 3    have a narrative setting out our views on each and every witness.  So that

 4    we've done something rather different here, and if I could invite you to

 5    take, for explanation of the first couple of documents -- and I'm afraid

 6    this isn't in a sense very interesting for those watching in the public

 7    gallery, but it's got to be done.  If I can invite you, please, to take

 8    your documentation and go to annex 9.  I'll explain what document you will

 9    find there.  I may return to it, as to any of these documents, later.

10            Annex --

11            JUDGE MAY:  I don't think we've got every single page of every

12    brief.

13            MR. NICE:  No.  Your Honour, I asked that it be brought in, but of

14    course --

15            JUDGE MAY:  Maybe it's in front of us.

16            MR. NICE:  Yes.  Your Honour, of course none of these documents

17    can be placed on the ELMO, because in nearly all cases the documents may

18    contain material that is not available for public consideration.

19            And I apologise, again, for those in the public gallery, for the

20    short period of time that may have to pass looking at material that won't

21    be available for them, in the same way that there will be short periods of

22    time when I shall ask to go into private session.

23            Your Honour has annex 9, headed Defence Overview, "Kordic Defence

24    Evidence Overview," and then turns to the first pages, you'll see what has

25    happened here.  Witness by witness, now in alphabetical order, first

Page 28242

 1    Kordic, and then Cerkez, an analysis has been done of the issue -

 2    "Concession" is not a very happy heading, but it's the only one that I

 3    can think of - the evidence of the witness, and some comments on

 4    credibility on the right-hand side.  I make the point straight away that,

 5    although the summaries have been prepared by a range of people -- and in

 6    relation to these documents, I am particularly indebted to Ms. Kind,

 7    Ms. Somers, Ms. Bauer, Mr. Cameron and Ms. Taylor.  Although they prepare

 8    the summaries on the left-hand side, the credibility issues are all

 9    lawyers' comments.

10            Now, again, this is not a document to be read slavishly and,

11    indeed, the preparation is necessarily uneven and to some degree patchy

12    simply for want of time, but if there comes a witness in respect of whom

13    the Chamber is asked to give particular consideration, on whom it's

14    invited to place particular weight by the Defence, why then, here is a

15    document that would say some of the things that we might have said because

16    we certainly shan't be able to deal with some of the witnesses this

17    morning had we been invited specifically to do so.

18            I repeat, the credibility column is by no means itself complete

19    and, indeed, in many ways, the Credibility and the Witness Concession

20    columns cover similar ground.  But that is a tool which I hope you will

21    find valuable, and we would invite you to look at it wherever a witness is

22    said to be particularly significant and the Chamber is minded to act upon

23    that invitation.

24            Having touched on witnesses, a word about how these witnesses come

25    here for one side and the other.  There are different realities for the

Page 28243

 1    Prosecution and the Defence.  The Court has heard of the difficulties and

 2    reluctance of which we, the Prosecution, hear and which we have to face

 3    from time to time.  The witnesses come from various places, not all, of

 4    course, from Bosnia, some having been relocated.

 5            When here, they've been prepared by us in different formats, but

 6    on a same general theme, with the reality that all their prior statements

 7    are known to everyone and so they can be prepared and have been prepared

 8    entirely neutrally.  That, in the judgement of the Court, may contrast

 9    with the position for the Defence witnesses from the former Yugoslavia and

10    although, of course, the Chamber has treated everyone coming to Court with

11    scrupulous fairness, that does not mean at the end of the exercise that

12    there has to be, as it were, ten witnesses believed for each side.

13            It may be - and we will urge you to consider this in due course -

14    it may be that a very large number of the Defence witnesses called in this

15    case had about them hallmarks of unreliability that simply cannot be

16    overlooked.  They had, the Chamber may conclude, regularly characteristics

17    of selective amnesia, selective uncertainty, and formula loyalty in what

18    they said that cannot be overlooked and must go to affect their individual

19    credibility, and ultimately, if the Court concludes that there was, as it

20    were, collective if not collegiate amnesia to affect the view that the

21    Chamber may have of the well of witnesses from which they were drawn.

22            I gather that, in the Defence briefs, there is now some complaint

23    about some of the witnesses we've called individually.  I'll deal with

24    those in a private session and even, it may be, some comment on the fact

25    of our calling them.  Let me make one thing absolutely plain:  This

Page 28244

 1    Prosecution's determination has been to call the best evidence available.

 2    It has no client apart from the truth, and its view has been, throughout,

 3    that if a witness is or may be capable of belief on central matters, then

 4    it is not for us, in any way, to filter that evidence out from the fact

 5    finder who, as this Chamber knows, we have, from time to time, suggested

 6    could, in certain circumstances, more equate itself to the role of the

 7    investigating judge sometimes than the common law Bench.

 8            Those are the principles upon which we have sought to assist the

 9    Chamber by calling the best evidence.  I'll deal with individual members

10    of the cadre of witnesses now attacked by the Defence at a later stage.

11            The comments about Defence witnesses and, indeed, the few comments

12    I've made about Prosecution witnesses, should perhaps have this reality in

13    mind as I turn to another general topic.  Trials of this type involve us

14    spending, in this case, a year and three-quarters attempting to prove by

15    other means what lies imprinted in the brains and the long-term retina of

16    the defendants.  They, as in any such case, are entitled to await our

17    proof.  But in a long case, we do learn some things about them

18    inevitably.

19            Here, quite shortly, and the Chamber may conclude in relation to

20    both defendants, things have changed in the course of the trial, and they

21    have changed because material came to hand in the course of the trial not

22    available at the beginning which simply could not be denied by the

23    defendants, although at the earlier stages of the trial, they would never

24    have acknowledged them.

25            The audiotape came first.  An audiotape of conversations between

Page 28245

 1    Kordic and Blaskic and between others.  Too risky to deny that the voices

 2    were the voices attributed in case those voices would be proved by other

 3    means.  So the voices were admitted with initial suggestions that the tape

 4    had been tampered with or may have been.  Cautious cross-examinations

 5    which led to witnesses having to be recalled as issues became clearer.

 6    Eventually, scientific evidence was called, and although in the Kordic

 7    brief it is now still asserted that such tapes might be created

 8    artificially, that wasn't the effect of the evidence.  The effect --

 9            JUDGE MAY:  And there's been a ruling about that.  The document

10    has been admitted.

11            MR. NICE:  Your Honour, yes.

12            JUDGE MAY:  The only issue remains is the weight to be given to

13    it.

14            MR. NICE:  Well, then, Your Honour, I shall move more swiftly over

15    the evidence that I heard has been relied on in the Defence brief about

16    potential corruption and return to my theme of what we learn from the

17    conduct of the Defence in relation to that tape.  And, of course,

18    ultimately we heard from the witnesses who both heard the conversation,

19    the first one, in any event, and who first and subsequently recorded it.

20            That evidence was then backed up by further evidence coming late

21    from two sources:  First, there was a report from a man called Batinic,

22    which we'll look at later, going to show that Kordic gave artillery

23    instructions, unequivocal document.  Second, there was the war diary,

24    which shows exactly the same thing and at the same general time.

25            And so what happens?  We find late in the day, almost the last

Page 28246

 1    witness, the suggestion being raised that Kordic gave military orders and

 2    people laughed at it.  Well, as long as people think, if they ever do,

 3    that trials are games, it can almost seem like bad luck to have evidence

 4    that disproves your case coming late, but these are matters far too

 5    serious for such an approach.

 6            But more, much more, is this point:  What is now being said, and

 7    it's different, by Kordic, is that yes, he did actually give military

 8    orders.  What does that show us about all those witnesses of his called,

 9    it may be from that well to which I referred, who gave evidence to the

10    contrary effect?  If he gave orders and was laughed at, they must have

11    known of it, some of them.  They would have told us about it, some of

12    them, and they didn't.

13            There was another example, not entirely trivial, touching on

14    Defence witnesses, that I will, despite the limitations of time, deal

15    with, but briefly.  A man called Cicak some might think unusual.  In our

16    brief, I've dealt with him.  I needn't repeat it.  I make the point:

17    Societies need people like Cicak, the awkward ones who will speak up when

18    everybody else is avoiding facing the reality until it's too late.  And

19    the only way that he could be attacked - and I gather in their closing

20    brief he's attacked again - was on the ground that he was suffering some

21    kind of mental health problem.

22            Touched on in cross-examination in chief but never explored, a

23    range of witnesses were called, and on affidavit, who spoke of this mental

24    health problem in some way to undermine him.  And yet it emerged that what

25    had happened was that he had been granted, maybe wrongly, maybe

Page 28247

 1    improperly, early retirement on the basis of alleged mental health

 2    problems.  And the Defence doctor called to deal with it, the Court may

 3    conclude, was unable to give any sensible answer to the manifestly

 4    ridiculous documentation he sought to produce, and indeed the Chamber did

 5    not require to have the matter further dealt with by Mr. Cicak, who was

 6    here and available.

 7            But the point is this:  What were those witnesses doing - I can't

 8    remember; two, three, four of them - trying to undermine this man on the

 9    grounds of mental ill health when it was manifestly not the case, and they

10    must have known it?

11            And the Cerkez Defence has a problem here as well, and I gather

12    again from somebody who has read this part of his brief that it's a

13    problem that they underline.  Had they not mentioned in their brief what I

14    understand they have, I wouldn't touch this point, but I do.

15            Towards the end of the other evidence called on Cerkez's behalf,

16    documents came to hand, the authenticity of which could not be resisted by

17    his own witness, Gordana Badrov, that showed unequivocally his involvement

18    in the Ahmici affair.  His signature was on them.  At broadly the same

19    time and as a result of, many would say, a generous approach to

20    documentary provision by the Chamber, and indeed a generous stance by the

21    Prosecution, who did not seek to argue at all for the rights of the

22    Prosecution as formally understood in relation to cross-examination

23    documents, by such a route, a large quantity of documentation was provided

24    to Mr. Cerkez, and on the basis of that, he made an application for an

25    adjournment, which was rejected, and is still relied upon in his closing

Page 28248

 1    brief as the reason why he gave no evidence.

 2            The Chamber has, I think, already made observations about that,

 3    but, and only because this is set out in his brief, I touch the point in

 4    this way:  If there were any real intention to have pressed that point in

 5    a case which has not been free of interlocutory appeal, the matter could

 6    have been considered elsewhere, and it hasn't been.  The clear,

 7    unavoidable reality is that those documents showed an involvement of

 8    Cerkez that he cannot resist, that he cannot deal with, and that give rise

 9    to the selfsame point that arises with Kordic:  What were those witnesses

10    doing called on his behalf - Bertovic for one, but others - who gave

11    accounts of his movements on that night which they must have known were

12    wrong?

13            Well, I turn from those general observations --

14            JUDGE MAY:  Before going on, it may be helpful if I asked you to

15    deal with this:  It may not be convenient to deal with it now, but during

16    the course of your submissions, there are two general points which I would

17    find it helpful if you would deal with.

18            The first really concerns the Busovaca incidents.

19    Supposing -- and no findings have been made; these are hypothetical

20    questions; I want that to be fully understood.  But I want also to

21    understand your case.  Supposing that the Trial Chamber found that there

22    was evidence which you've pointed to of direction of artillery by

23    Mr. Kordic.  You would no doubt then ask us to draw the inference that he

24    was involved in the military operations in Busovaca at the time.  I put

25    that very generally.

Page 28249

 1            The question then arises:  What inference can one draw for the

 2    rest of the case for his involvement in military matters?  There is, of

 3    course, the evidence that he was a leading politician in the area.  There

 4    is some evidence about Vitez which no doubt you will refer to.  There is

 5    also, of course, evidence of orders relating to personnel, relating to

 6    equipment.  No doubt you will rely on those.  But the question is this:

 7    What inference do you ask us to draw, and how does it connect the accused

 8    with the various underlying crimes which are the subject of this

 9    indictment, particularly as we advance through the year into the autumn?

10    If at some stage during your submissions you would deal with that, I would

11    find it helpful.

12            The other matter is a more particular matter and it concerns the

13    other accused, Mr. Cerkez.  And you say there are documents which connect

14    him with the events in Ahmici, and of course you are referring there to

15    documents which refer to progress being made in Ahmici.  There is also

16    evidence that it was the military police who are responsible for what

17    happened in Ahmici, and of course there is other evidence that the Viteska

18    Brigade was ordered to direct its efforts towards -- to defend Vranjska

19    and Kruscica.  Now, what I want to know is what the Prosecution case is

20    about the involvement of the Viteska Brigade in Ahmici.

21            MR. NICE:  I'll deal with both of those points in due course, and

22    thank you for giving me advance notice of your interest in our answering

23    them.

24            Your Honour, it is obviously necessary to be prepared to deal with

25    the law, and if time were more available, it would be necessary for me to

Page 28250

 1    deal with it at some length in any event.  Can I tell you first of all

 2    what the documentation is that you have, and probably say very little

 3    about it for time considerations at this stage.

 4            In, I suspect it's volume 1 of your papers, but it may possibly be

 5    volume 2 coming from us, there are three sections really that deal with

 6    the law.  And the order to approach them is not, in fact, the order in

 7    which they are annexed but one that starts, I think, with annex 5, the

 8    document which deals with the elements of the offences charged in this

 9    indictment.

10            Now -- I seem conveniently to have misplaced mine now.  Rather

11    unhelpful.  That constitutes a full analysis of the Article 2, 3, and 5

12    charges, the Prosecution's view in relation to the law on them.  If one

13    looks simply at the title page or the table of contents, page 1 of the

14    document, it's a helpful reminder to us - and we'll see this in another

15    document shortly - it's a helpful reminder to us that in fact the

16    indictment proceeds, as it were, upside down, because persecution, under

17    Article 5, starts things off.  And as to Article 5, persecution, the

18    Prosecution's position is that the threshold, so far as mens rea is

19    concerned, is not particularly high, but what there has to be revealed is

20    a violation of fundamental rights on discriminatory grounds with the

21    participating accused having knowledge of the grounds.  So that the phrase

22    "discriminatory intent" can be misleading.  The rights involved are life,

23    physical integrity, liberty, property, and others.

24            Coming back from the title page, we then, of course, go through

25    Article 2, charges, and Article 3.  I don't propose, unless the Chamber

Page 28251

 1    wishes otherwise, to go through this document in any detail today.  It is

 2    available for consideration.  It comes with the next relevant annex, which

 3    is annex 7, I think.  I beg your pardon, annex 4, which is the annex on

 4    individual liability under 7(1) and 7(3) of the Statute.

 5            These provisions will, I think, be familiar to the Chamber.  It

 6    is, of course, possible for there to be findings of guilt under both 7(1)

 7    and 7(3).  There can be arguments of illogicality.  Our position can be

 8    summarised in this way as against both defendants; that 7(1) categorized

 9    as co-perpetrators may be the appropriate starting point, but that with

10    material of this quantity, it is, in any event, a matter for a Chamber to

11    decide how, if at all, to -- how, if at all -- no, I beg your pardon, how

12    to categorize guilt if and when it is proved, and that 7(3) is equally

13    available in both cases.

14            The third --

15            JUDGE MAY:  How is it available?  Just help us with this:  How is

16    it available in the case of Mr. Kordic, a civilian, not formally in the

17    chain of command, no evidence, I think, that he could punish or discipline

18    soldiers?

19            MR. NICE:  The evidence is, of course, a matter of fact.  The

20    formal position counts for -- doesn't count for nothing.  It doesn't

21    necessarily determine matters one way or the other.  In our submission, on

22    the true evaluation of his position in this community at that time, his

23    authority was such that he most certainly could initiate and have

24    initiated punishment.  He most certainly could control and, indeed,

25    there's evidence that in relation, for example, to what happened at Stupni

Page 28252

 1    Do, that he claims to have started such steps even if they got nowhere.

 2    So we say emphatically that he was in the de facto position of being able

 3    to do all those things.

 4            JUDGE ROBINSON:  Mr. Nice, would you agree that the evidential

 5    threshold to establish command responsibility in respect of a civilian

 6    would be higher than it is in the case of a person who is in the formal

 7    chain of command as a military person?

 8            MR. NICE:  We don't resist that proposition.  I think the ICC

 9    Statute would take that view, and we claim that we can meet that higher

10    standard.

11            JUDGE ROBINSON:  You can meet that standard.

12            MR. NICE:  Yes.  This matter is, of course, more fully developed

13    in our written documentation, but that is our position.

14            JUDGE BENNOUNA: [Interpretation] Excuse me, Mr. Nice.  I didn't

15    understand quite what you just said in your brief.

16            MR. NICE:  Excuse me, Your Honour, I'm not receiving the

17    translation and I prefer to listen to it in English, if I can.

18            JUDGE BENNOUNA: [Interpretation] Can you -- do you hear now?

19            THE INTERPRETER:  Can you hear now?  One, two, three.

20            MR. NICE:  If Your Honour could try again.

21            JUDGE BENNOUNA: [Interpretation] Yes, can you hear me?  [In

22    English] I will try in English.  The problem is the following:  I think

23    that you mentioned in your brief, and perhaps in the annex, that one can

24    be responsible under Article 7(1), which can be defined as direct

25    responsibility, and Article 7(3), which is indirect responsibility, in

Page 28253

 1    some way, command responsibility for the criminal activity of

 2    subordinates.

 3            If I understood well, you suggest that one can be responsible on

 4    7(1) and 7(3) for the same facts, the same behaviour or -- is there

 5    somewhere where you say it can be cumulative and it's up to the Chamber to

 6    decide on something like that?

 7            MR. NICE:  It's --

 8            JUDGE BENNOUNA:  Can you be more precise?

 9            MR. NICE:  It's technically possible, but I think it's said

10    elsewhere in one of the decisions that it's also, in a sense, unrealistic

11    because if you commanded something which is itself a crime, how are you to

12    have a change of heart and go and discipline your subordinates?

13            So the technical possibility is one that's truly got to be

14    resolved by a choice by the Trial Chamber, although the fact that you have

15    committed crime, one wouldn't -- doesn't relieve you in the law from your

16    responsibilities under 7(3), but it's like that.

17            JUDGE BENNOUNA:  Thank you.

18            MR. NICE:  The third document that I would invite Your Honours to

19    look at in relation to the law, and the perhaps the only one of the legal

20    documents that you'll have to consider, is annex 7 which is in three or

21    four parts and is a nice short document, you will be pleased to know.

22            Annex 7 deals with international armed conflict.  The legal part

23    of it -- incidentally, I should have said that for the earlier document,

24    Article 7, and I am particularly indebted to Mr. Guariglia for his

25    assistance.  Annex 7 has a short statement of the legal position required

Page 28254

 1    for proof of international armed conflict relevant, of course, to the

 2    Article 2 charges.

 3            Our position at paragraph 8 on page 4 is that proof has to be of

 4    overall control in organising, coordinating, or planning the military

 5    actions of the HVO.  We set out in summary what elements enable the

 6    Chamber to be satisfied so as to feel sure that the international armed

 7    conflict existed.  And then, and this is the passage that the Chamber may

 8    not, itself, have to look at, there are sections of the annex, again,

 9    quite short, at page 6, a summary of, we hope broadly comprehensive but,

10    of course, these summaries may miss things, the witness evidence as part 2

11    at page 6, the exhibits of direct involvement of HV forces in

12    Bosnia-Herzegovina, part 3 at page 13, and we then go to section B at page

13    22 with direct involvement of Croatia, direct control and so on.  And page

14    31 is logistic report.  Indebted, as I am, to Mr. Roberge for his work on

15    that document.

16            So we hope that that's a helpful analysis of the information

17    available.  In the time available, I'm not going to go through it here.

18    We have in mind that the Chamber has, from time to time, limited certain

19    parts of the evidence or indicated a desire to limit certain parts of the

20    evidence in relation to international armed conflict, and in those

21    categories, at least, we hope that we have provided sufficient.

22            Those documents, therefore, I hope, are both available and helpful

23    to you.  If there are any legal issues arising, I would always be grateful

24    for notice in order to deal with them before I sit down, and particularly

25    a little advance notice of where that could be possible so we could

Page 28255

 1    articulate our position with some precision.

 2            So far as -- I should have said this, I think I can move straight

 3    on.  Thank you very much.

 4            I'm not going to repeat what is contained in our brief, which is

 5    in narrative form and contains arguments within it, but I do desire to

 6    deal now for a period, I hope not too long, with some factual matters, and

 7    the structure of my address is that I'll deal with the factual matters now

 8    and I'll deal with one document in some detail that I think it's necessary

 9    in the interests of the Tribunal and, indeed, in the public interests it

10    should be dealt with in detail.  And then following that, I will hope to

11    deal with such points arising from the Defence briefs as we are aware of

12    and that it would be appropriate for us to discuss.

13            Can we suggest to the Chamber that the -- I beg your pardon.  My

14    mistake.  I'll deal with one other document, again, to satisfy the Court

15    that the volume of material we've provided is much less than by weight it

16    looks.  I wonder if you would be good enough to go to appendix 6, and I

17    said that there would be a document reflecting, again, the formulation of

18    the indictment.

19            Appendix 6 is titled "The Crime Base Document."  Again, indebted

20    to Mr. Roberge.  This is a document that the title page reflects -- of

21    which the title page, page 1, shows the shape of the indictment, starting

22    with persecutions and then going through all the other individualised

23    offences.

24            The Chamber will remember from earlier filings of ours that we

25    have presented tables showing what we have to prove and the witnesses by

Page 28256

 1    which we proved them.  We've maintained that -- tradition is too strong a

 2    word -- practice, and if the Chamber is good enough, in a copy it may

 3    have, to go to page 2 which will do simply as an exemplar, here we have in

 4    the amended indictment the counts 1 and 2 that are charged as crimes

 5    against humanity.

 6            This, of course, the persecution count, is itself broken down by

 7    various subcategories which can be found on the subsequent pages.  But

 8    municipality by municipality, location by location, we have sought to

 9    summarise the evidence so that those working on the material, whenever

10    they have a concern about a particular location, will be able to find,

11    again, subject to omissions which inevitably have occurred and, indeed,

12    subject to errors which in documents at this scale may have occurred, they

13    will find what we are due to say is the available and material evidence.

14            So persecution goes from pages 2 to 82, and then at page 83, one

15    picks up with the individual other alleged offences, this one being counts

16    3, 4, 5, and 6, against both defendants, being violations of the laws or

17    customs of war and so on in the form of unlawful attacks of civilians and

18    civilian objects.  The next one, killings, starts at page 96, and so on.

19            So that there is available for the Chamber a reckoner, an analysis

20    of the material.  We, of course, don't know what other tools are already

21    available to the Chamber.  It may be we've simply duplicated work done

22    elsewhere, but it certainly ought to be available, and so we hope it is

23    helpful.

24            This case, in our submission, reduces ultimately to a history

25    which is defined by individual events, and these are events that won't go

Page 28257

 1    away.  The accused must face them.  They cannot escape the fact - I think

 2    there's now some submission perhaps to this effect - that not only

 3    Milosevic but also Tudjman had territorial dreams of the type always

 4    associated with strife and all too regularly with death.

 5            Now, if you nail your colours to the mast of a ship that seeks to

 6    make territorial acquisitions, to use a rather mixed metaphor, and you do

 7    so at risk - you should be doing so with responsibility - if you do so

 8    recklessly, the consequences may be grave.  Taking over territory by a

 9    political party is similarly an activity associated with serious risk.

10            We know that as early as August of 1990, it was being asserted by

11    the party in Croatia that there was a right for the Croatian people to

12    secede, and that's a fact that those joining and being a party to the

13    organs that followed on that initial creation cannot escape, for that is

14    what they chose to associate themselves with, in much the same way as they

15    were prepared to sit down and draw intellectual support from Valenta.  And

16    I gather that, in the Kordic closing brief, he is somebody still

17    supported, although the Prosecution has to make the point that throughout

18    history there are warnings of the dangers of the enforced movements of

19    people, dangers again typically associated with the worst forms of strife.

20            The defendant Kordic must recognise that when he took Busovaca in

21    August of 1991, although it may have seemed a good idea at the time, it

22    brought for him opportunities and risks.  I think I opened this case by

23    saying of the defendants that what happened may be a reflection of both

24    their strengths and weaknesses over time, and so it may have been at the

25    time, they not realising what they were setting in store for themselves.

Page 28258

 1            We know that on the 18th of September of 1991, moving rapidly

 2    through the history, there was a decision to form a Crisis Staff to direct

 3    the system of defence of the entire Croatian people.  I needn't trouble

 4    you with that as an exhibit.  We know that there was a decision to

 5    arrogate power to a small group at a time when that may have seemed an

 6    appealing proposition; exhilarating, one can imagine.  At that time, the

 7    party had at its head, moderates, and it cannot be escaped as a fact that

 8    those moderates, or one of them in particular, Kljuic, was removed.  Why?

 9            Kordic cannot escape the fact, as things developed - and there is

10    one more document for you to look at and an interesting one if you haven't

11    seen it so far - that as things developed - this is appendix 10, another

12    short document.  Perhaps I'll just lay this on the ELMO.  It's another

13    document prepared by Ms. Bock, for which I'm very grateful.

14            Kordic cannot escape the fact that, over time and in the course of

15    his involvement in all these various bodies, he operated with a range of

16    different titles.  This chart, which is supported in the schedule by the

17    various dates and times of particular title use, this chart shows the

18    start and stop date.  It doesn't necessarily deal with the frequency of

19    use of particular titles in between the start and stop dates.  That's

20    covered in the schedule.  But one can see this man starting off as

21    president of the Busovaca HDZ, then Travnik HDZ, the Crisis Staff,

22    vice-president of HZ HB, vice-president of the HVO, the regional staff, a

23    colonel in 1992, November, a deputy commander of HZ HB, I think that was

24    probably only once, and so on, going right the way down to the position

25    that he held as assistant deputy head of the HVO Main Staff, which has

Page 28259













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Page 28260

 1    been the subject of some controversy.

 2            What analogy should one use:  "Finger in every pie" or "All things

 3    to all men," but not in the weak application of that phrase.  Certainly by

 4    the various jobs he held, he covered the territory, he covered the

 5    organisations.  And as I think we said in the opening of this case a year

 6    and more -- a year and three quarters ago, in a position that no major

 7    decision could be made that would not involve him, and that is a reality

 8    he cannot escape.

 9            The defendants cannot get round the fact that as between them - I

10    beg your pardon, not them - as between the Croats and the Muslims, the

11    Muslims had nowhere to go.  They did not have a parent state to join.  The

12    OTP has no interest in saving Muslims from the consequences of the crimes

13    they committed, where they did and when they did.  Indeed, it's part of

14    our mission here to pursue them in those circumstances with the same

15    vigour as any other criminal in the former Yugoslavia.

16            JUDGE BENNOUNA: [Interpretation] Mr. Nice, if I may interrupt you

17    for a second, very briefly, with regard to what you have just said.  You

18    have just said that Mr. -- no.  I shall read in English from the

19    transcript. [In English] [Previous translation continues] ... Mr. Kordic,

20    "He covered the territory.  He covered the organisations.  And as I think

21    we said in the opening of this case a year and three quarters ago, in a

22    position that no major decision could be made that would not involve him,

23    and that is a reality he cannot escape."

24            [Interpretation] Do you mean by this that when a person has a

25    territorial authority in a specific area, that such a person is then

Page 28261

 1    responsible for all the criminal behaviour, for all the crimes that take

 2    place in the territory or region concerned, without the need to prove a

 3    direct connection between that particular person and those crimes?

 4            MR. NICE:  Certainly not, no.  We wouldn't take such a formal or

 5    formalistic approach.  Our duty is to prove these things as a matter of

 6    fact.  But the titles that he adopted are one of the elements, one of the

 7    factual elements that goes towards that proof.

 8            JUDGE BENNOUNA: [Interpretation] Therefore, you do not support a

 9    doctrine which is called strict responsibility, or objective

10    responsibility, of facts of post of authority in a specified -- in a

11    specific region?

12            MR. NICE:  Well, that all depends.  For example, when we come to

13    the position of Kordic as a member of the presidency, then he does have,

14    it may be thought, legal responsibility for what flows from that

15    particular position, and therefore there will be a legal responsibility

16    falling upon him, and that he cannot escape.  But as to the range of

17    titles that we've been looking at on the ELMO recently, those - let me

18    just look at them again - those don't all of them, and at any particular

19    time, expose him to liability for these crimes, although they may be

20    factually a feature on the way to doing so.

21            For example, if you look at the fact that he's got political

22    office at the same time as he is signing documents as vice-president of

23    the HVO, it may be, and this will be for the Chamber to decide, that his

24    function within the HVO has a more proximate bearing on what the HVO might

25    have been doing than his position as a politician, because the structure

Page 28262

 1    of these bodies is, to some degree, lost, notwithstanding the quantity of

 2    material that we have; lost or indeed merged.  So that although we do rely

 3    on his position in the presidency, and we may rely specifically, and I'll

 4    come to them perhaps later, on particular posts he held at particular

 5    times, the range of titles is a general element going to show that he was

 6    the man in charge.  He featured everywhere, he featured in every body, or

 7    most bodies, at many times, and that is a reality he has to face.

 8            JUDGE BENNOUNA:  Thank you, Mr. Nice.

 9            MR. NICE:  I think I also said at the beginning of the case that

10    there may indeed be something significant in the fact that, despite this

11    range of titles, it's actually very hard to pin him down.

12            JUDGE MAY:  That is what the Prosecution, if they're to prove the

13    case, have to do, to prove the matter factually.  Simply to prove that he

14    held a number of titles or a number of positions, simply to prove that he

15    attended meetings, even to prove that he was the leading politician in a

16    particular area, doesn't prove the case.

17            MR. NICE:  Your Honour, I agree.

18            JUDGE MAY:  What has to be done is to link him to the particular

19    offences which are charged.

20            MR. NICE:  Indeed.

21            JUDGE MAY:  And that is the issue, really, in this case.

22            MR. NICE:  Yes.  The point -- I entirely accept that.  The point I

23    was going to make next in a sense is an answer to that issue or question,

24    but in a slightly different way.  If you ask most people what they do for

25    a living, they can say they are a lawyer or a judge or a shorthand writer

Page 28263

 1    or an usher, and he or she can say what his job is.  And any person

 2    observing him or her, after a short period of time, will be able to say

 3    what that person's function was.  It's not difficult.

 4            We have said from the beginning that there is a curious feature

 5    about this man.  All these titles, by which he may, in answer to His

 6    Honour Judge Bennouna's point, yes, he may have strict liability in

 7    certain positions.  But despite all these titles, if you ask, well, how

 8    did he spend his day, where was his office, what was he doing, it's

 9    sometimes rather difficult to see.  I make the point, I think, in the

10    brief, that no evidence has been called from a secretary or anybody like

11    that to describe his daily routine.  It's all a bit hidden in mystery, in

12    truth, and that has significance.

13            JUDGE ROBINSON:  Mr. Nice, sorry, you might want to say, I don't

14    know, that the possession of titles is an indication of responsibility de

15    jure, of de jure responsibility.  It is an indication of the authority to

16    carry out certain conduct which is derived from that title and that is, of

17    course, to be distinguished from his actual conduct.  I mean, whether his

18    conduct, actual conduct coincides with the responsibility which is to be

19    derived de jure from the title is another matter.

20            MR. NICE:  Indeed, I gratefully adopt that formulation of an

21    approach to the evidence.  I suppose to flesh it out, if you had somebody

22    who has a job title that normally would make him responsible for the acts

23    of a subordinate but the evidence reveals that he was wholly unaware of

24    his subordinate's actions, disassociated himself from them, was in another

25    country, whatever you like, well, then, in answer to both Your Honours'

Page 28264

 1    point and also picking up on His Honour Judge Bennouna's earlier point, I

 2    don't think that by his merely holding the office that he would be

 3    responsible.

 4            But further accepting and adopting what you propose as a possible

 5    formulation, absent such exculpatory material and at the very least his

 6    holding of the title is material going to show that, prima facie at least,

 7    he's going to be responsible, certainly.

 8            But developing the point that I was touching on just before that

 9    observation of Your Honour's, the curious, the mysterious difficulty of

10    defining exactly what he was doing on a day, the absence of any evidence

11    about what he was doing, that's actually got its own significance because

12    it does mark him out, it may be thought, from nearly everyone else.  And

13    the only reason, the Chamber may conclude, that he has that characteristic

14    is because in fact he was an all-powerful figure, exercising control in a

15    range of ways that have not been revealed, that were known to him but have

16    not been shown entirely to us.

17            But the fact that they haven't been shown to us entirely doesn't

18    mean to say that the Chamber cannot infer with absolute confidence that

19    the lines of control and communication were there.  It is, of course, in

20    the nature of crime that a criminal will throw up a screen to try to

21    obscure from those who have a proper interest in knowing what he's doing

22    what they can see.  All too often, triers of fact face those screens and

23    are able to work out, even if they can't see the precise machinery behind

24    the screen, the precise creature behind the screen, they can know what's

25    there and they can know what is being done.

Page 28265

 1            Here, you have a man, just to give you a few examples of the

 2    picture that we've got, a man very early on going to live in an armed

 3    hideaway, surrounded by guards, travelling to his town where people had to

 4    get out of the way and get off the streets, as we've heard from, I think,

 5    one witness, when he passed.  Well, that is itself activity to obscure.

 6    Why obscure yourself?  Wartime doesn't indulge -- doesn't have the

 7    resources for people to indulge themselves with Walter Mitty fantasy

 8    lives.  People driving around in armed cars and living in armed and

 9    guarded retreats are doing so for a reason, and the reason is all too

10    clear, however great were the efforts to keep that clear reality from

11    you.

12            And it all fits, but in an inverted way, with the picture of the

13    titles.  The titles, whether they, prima facie or substantially, suggest

14    guilt because of responsibility or not, they, and his adoption of so many

15    different titles, fit with the fact that he was - and here one can use and

16    properly use a phrase from the ordinary criminal world - he was, in a

17    sense, shady.  There was an umbra that, to some degree, was protecting him

18    from being seen too clearly, and that was there simply because he had so

19    much authority that he judged it necessary for it to be there.

20            I think I had been dealing with the fact that the Muslims had

21    nowhere to go, and in contradistinction to that, the Croats had an

22    interest, indeed, to serve as long as they harboured the desire to join

23    their parent state.  The Chamber has been confronted recently with some

24    evidence in various locations that it was the Muslims who started it.

25    Matters either never or barely raised in cross-examination, it may be, and

Page 28266

 1     - more significant - matters not evidenced by the International

 2    Community.

 3            The Chamber will remember not, of course, specifically in this

 4    trial, but how the order that first surfaced in the Blaskic trial that

 5    would have been some evidence of pre-Ahmici Muslim aggression was, in

 6    fact, a doctored document, coming from more than four days later, a week

 7    or more later.  We would invite the Chamber to look at all these various

 8    events where it is now suggested that there was pre-HVO aggression by the

 9    Muslims, and to compare the evidence and also to check the independent

10    evidence.  For the fact of the matter may be that the Muslims, in this

11    locality and at this time, had no interest to serve in triggering

12    violence.  They had nothing to achieve, in contradistinction to the HVO

13    and Kordic and the rest, who, however unrealistically, however

14    overambitiously, had a mission, as they judged it, to serve, a mission to

15    enforce the Vance-Owen Plan or whatever else it was.

16            JUDGE MAY:  Let me just interrupt you there.  The Defence case is

17    that the accused and the Bosnian Croats generally were defending

18    themselves, and that the actions which were taken in forming the HZ HB and

19    the HVO and then, indeed, the military actions were all part of a

20    defensive plan or defensive reaction to events, attacks first of all by

21    the Bosnian Serbs and then by the Bosnian Muslims.

22            Now, what I want to understand is the Prosecution case.  Is it the

23    Prosecution case now that there was a plan conceived, if you will,

24    elsewhere, but put into effect in Central Bosnia that flowed from 1991,

25    followed through the HVO takeover of the municipalities, and then became

Page 28267

 1    the armed conflict, the use of violence in 1993?

 2            Now, I want to understand if it's the Prosecution case that this

 3    was a plan, as it were, which simply developed?  I thought that was the

 4    Prosecution case, but I want to be sure that it is now.  Or was there a

 5    reaction as far, as the Bosnian Croats were concerned, to events and are

 6    you suggesting that this was an overall plan which simply developed

 7    throughout the two or three years, or was it one which resulted from

 8    events on the ground as they happened?

 9            It may be that you'd like to deal with that later.

10            MR. NICE:  Your Honour, I think I can deal with it straight away.

11    I think the answer to Your Honour's initial question is yes.  Mr. Scott

12    has written me in large hand a note that I think actually encapsulates the

13    qualifications rather well.  It's an English phrase, "With fits and

14    starts."  And, of course, with the intervening effect of the Vance-Owen

15    Plan by which they were able to claim a legitimacy for ambitions that, of

16    course, the ambitions changed probably from time to time in detail, but

17    that plan gave them some form of support, they judged it, and stimulus;

18    but the answer is yes.

19            And, of course, one of the interesting and important pieces of

20    evidence in relation to that, the Court may decide, is the evidence of the

21    meeting on the 27th of December, 1991 in Tudjman's office.  As the Chamber

22    will recall, it's the only such transcript that its had, partly, if I may

23    say so, at the Chamber's decision, but that is sufficient because it shows

24    perfectly clearly, as we've argued before and elsewhere, that so far as

25    Croatia was concerned, and maybe all the participants were concerned and,

Page 28268

 1    of course, Kordic was there, it was going to be a twin track.  Things were

 2    going to be done publicly which weren't going to reflect, in the

 3    vernacular of our age, the hidden agenda.  The hidden agenda remained.

 4            That hidden agenda is no more clearly revealed, the Chamber may

 5    conclude, than by the fact that what followed from those early decisions

 6    in the way of creation of various bodies had no democratic mandate.  It

 7    was all a question of the assumption of power and the imposition of power

 8    on others.  It may be thought that those who, as I've said earlier, via

 9    political parties or whatever means, choose, without democratic process,

10    to take advantage at the expense of others or to disadvantage of others,

11    are showing themselves loyal to one group in a way that it may be thought

12    is near to treacherous to the others.  Because you cannot take to yourself

13    that which you share with others without doing, and no doubt intending to

14    do, them a huge disservice.

15            The Chamber will, of course, have in mind, and I don't intend to

16    replay it, the Busovaca town hall meeting with the references by Kordic to

17    Croatia, to the Pope, to Germany, and then the Kostroman speech.  I think

18    that (redacted), the mayor, is relied upon by the Defence as one of the

19    witnesses upon whom the Chamber should act.  Our respectful submission to

20    the Chamber is that he was one of many witnesses, on both occasions when

21    he attended, who was unsatisfactory almost to the point of absurdity.

22    Sorry, I said "(redacted)," I meant Maric, Zoran Maric.  I'm so sorry.

23            But even he was effectively compelled to accept that what was said

24    by Kostroman was wholly unacceptable.  That was the question put, I

25    think.  That wasn't his answer, his answers were, I think, much more

Page 28269

 1    shifting in their nature than a sheer acknowledgment.  But of course, he,

 2    and all the others, did nothing to disassociate themselves from what was

 3    being said publicly.  Why?  Because had things not turned out the way they

 4    have, those things would have become acceptable.  Why?  Because it is the

 5    apathy that lies within people of all types that those of extremist views

 6    can prey upon.  They can make advances while apathy holds others back, or

 7    perhaps fear, and achieve that which they should not have.

 8            So the defendant Kordic passing through those various landmarks of

 9    this case rapidly moves from the young, suited politician to the armed, as

10    we've heard on occasions, man dressed in military garb and, of course, the

11    character of the man cannot be dealt with without reminding the Chamber

12    that that unusual man Cicak, if he was unusual, who simply asserted, by

13    freedom of speech, what surely he was entitled to assert, got beaten up.

14    That's how quickly the society had changed, and that is what the Chamber

15    may decide the defendant, the accused Kordic had become.

16            Now, what I'd like to do is to start, and quite rapidly looking at

17    documents that simply cannot be controverted.  There is a whole lot of

18    evidence adverse to the defendants which comes from witnesses and, of

19    course, all of that we want the Chamber to weigh and act upon.  All of it,

20    we say, coming from the Prosecution's side, is material that can be relied

21    upon.  Like, for example, the beating of Merdan after the May 1992

22    takeover.  Like the fact of, for example, Muslims in Vares having to take

23    their government into exile, all part of the same overall community;

24    matters of that sort.

25            But there are documents, and I will race through it because I can

Page 28270

 1    see the time problems that are coming, there are documents that simply

 2    cannot be got around by argument and that do show us the truth of what was

 3    going on.

 4            Very rapidly, and in order, the 10th of May document of 1992.  The

 5    Chamber will know these documents well, and if I deal with them more

 6    quickly than the public will be able to take up, I apologise, but that's

 7    an inevitability.

 8            This is the takeover document with which you are familiar.  And

 9    the arrest of Merdan and so on.

10            JUDGE MAY:  It might be helpful to have the exhibit numbers.  I

11    think that's Z100.

12            MR. NICE:  That is, indeed, Z100.

13            Then Z111, the assertion that the HVO of Busovaca, it's

14    highlighted in blue at the bottom, is in charge of the entire organisation

15    of life and the defence of Busovaca until the creation of more favorable

16    conditions.  No ifs or buts, straightforward assertion of authority.

17            The next document in order, Exhibit 120, 1st of June, 1992,

18    Kostroman and Kordic, an order that the municipal headquarters in Vares

19    send a unit of 30 soldiers to Tarcin Do.

20            Next document, 10th of July, 1992, Z160.  On the 1st of June, the

21    Vares Croatian Defence Council took over executive authority on the

22    territory of the Vares municipality.

23            Next document, please.  If Your Honour will just give me one

24    minute.  Yes, I'll have a look at this one briefly, yes.  This is the 20th

25    of October document from Blaskic, dealing with the situation in Novi

Page 28271

 1    Travnik and, if you turn over, I think, the page to paragraph 3, "If I do

 2    not receive reinforcements this evening, I will be forced to withdraw the

 3    units from Jajce.  I urge you for an urgent reply."  This touches on the

 4    whole issue of the reason for the blockade at Ahmici in October 1992 and

 5    what the troops were really going to do.

 6            And then finally, the document 243, with which you are very

 7    familiar, on page 3 of it -- exhibit number was 243, I thought I'd said it

 8    -- and here's something from both Kordic and Blaskic.  "Kordic and I are

 9    in Novi Travnik continuously leading the military operations with deep

10    knowledge of the situation keeping all the forces under control."

11            It's argued about, of course, in the Defence brief, but it's quite

12    simple.  It means what it says, and it can't mean anything else.  The

13    Chamber will recognise, as a matter of the history of the case, that as

14    these military documents turned up, various explanations were given from

15    them whether signing on this side meant you were signing as a witness and

16    then the next document came up with Kordic signing on the other side.

17    Requests interpolated, is the word, as opposed to an order and so on.

18            JUDGE BENNOUNA: [Interpretation] Excuse me, Mr. Nice, but are you

19    trying to show us, by way of this document, that Mr. Kordic was Blaskic's

20    superior or were they at the same level, perhaps?

21            MR. NICE:  We can't assert as at this time specifically whether he

22    was superior by a degree or parallel.  There are later times when the

23    position is clearer and when the Chamber may conclude that he was

24    superior.  It is, of course, entirely sufficient for the purposes of --

25    not for the purposes of, for convictions of these charges, it is entirely

Page 28272

 1    sufficient that he is involved in an active way, whether equal, superior,

 2    or subordinate.

 3            But the simple interpretation of this document at this time would

 4    be that they had an equality of authority, at least in relation to the

 5    immediate matters that they were dealing with there.  As against that, the

 6    Chamber will recall that Colonel Stewart, when he went to Novi Travnik at

 7    this time, was left in no doubt about the authority of Kordic at that

 8    particular location and at that particular time.

 9            JUDGE MAY:  But Blaskic was not there.

10            MR. NICE:  No, no.

11            JUDGE MAY:  That was merely in Novi Travnik.

12            MR. NICE:  I said -- I'm so sorry.  I said at that time and in

13    that place.

14            JUDGE MAY:  Yes.  The issue is, and it would be helpful to hear

15    the Prosecution case on it, is the relative positions of the two.  What do

16    you say about that?

17            MR. NICE:  Well, Your Honour knows that our position is, since you

18    ask us, that there was at times a conflict between them, and that it may

19    be that there was a power, tension, or struggle from time to time.  But

20    there is not a great weight of evidence on that topic in the event, and

21    the material would suggest that Kordic was never less powerful than

22    Blaskic from a certain point in time and, as I've already suggested in

23    answer to His Honour Judge Bennouna, at certain times plainly more

24    powerful.

25            And, of course, the Chamber will have in mind two bits of evidence

Page 28273

 1    that in a sense throw light on this of a similar type coming from

 2    different sources.  General Merdan and Brigadier Cordy-Simpson both

 3    remarked one way or another on the ability of Kordic to make decisions

 4    without reference up any chain of authority, in contradistinction to what

 5    the position was with Blaskic.

 6            I don't know if the Court is looking for a time.

 7            JUDGE MAY:  Yes.  It's time.  If that's a convenient moment.

 8            MR. NICE:  Certainly.

 9            JUDGE MAY:  We'll adjourn for half an hour.

10                          --- Recess taken at 10.35 a.m.

11                          --- On resuming at 11.05 a.m.

12            JUDGE MAY:  Mr. Nice, while we have the matter in mind, you have

13    asked for your time, or having time allotted in rebuttal.  The timetable

14    is very short.  Were you to want to exercise that right, then I'm afraid

15    we would have to ask you to take it out of your earlier time.

16            MR. NICE:  Oh, yes.  Thank you very much.  I'll make my decision

17    over lunch.  Your Honour is right; time is short.  I have competing

18    interests and duties, including in relation to the booth.  Apparently I

19    went all right to begin with this morning, but I musn't now accelerate in

20    an unreasonable way.

21            While we've taken a break and are dealing with matters of

22    evidence, can I introduce you to, in order to make sure that you

23    understand their utility, follow their utility now, can I introduce you to

24    three more documents in the last volume, which is all the

25    landscape-ordered documents.

Page 28274

 1            The first one is annex 8.  Annex 8 is a very substantial document,

 2    of which I am indebted indeed to Ms. Bock for an enormous amount of work.

 3    There are two of them.  One is Kordic-specific and one is

 4    Cerkez-specific.  And if the table of contents is looked at, page 1, you

 5    can see that there has been a breaking down of all the evidence under

 6    various headings that it is thought might be helpful.

 7            In all the documents we've prepared, we've had in mind a

 8    fact-finder's difficult task at the end of a big case like this, and it

 9    occurred to us that these titles might be the sort of issues that the

10    Chamber would ask itself.  So that, for example, if it wanted to see what

11    speeches there were, it would go to page 15 at C.  If it wanted to see

12    examples of demonstration of command, which is one of the topics we have

13    indeed been touching on, it would go to page 37, and again, subject to

14    errors and omissions and corrections, of course, that there it will find a

15    number of examples on page 37, starting with the Bratstvo factory, moving

16    through Aleksovski's position in relation to the release of prisoners,

17    going to Duncan's assessment over the page.  And I've had these

18    photocopied double-sided so once the file is opened you can see a bigger

19    spread of documents.  And we then go through various other detailed pieces

20    of evidence.  And since they're here, it's not worth my while repeating

21    them, but they all go to that particular topic and are supplementary to or

22    part of what I'm going to be talking about now.

23            The next document is Cerkez-specific.  It starts at effectively

24    after page 110.  And that comes in similar format, with questions set out

25    on the table of contents.  And at the end of that, you'll see a third

Page 28275

 1    document which picks up at - it's part 3 of this document - picks up at

 2    page 43, the third document of Mr. Lopez-Terres.  It deals with the

 3    soldiers of the Viteska Brigade involved in persecutory acts, at section

 4    A, and it deals with - sorry - yes, the location of people -- soldiers of

 5    the Viteska Brigade who were wounded or killed, at page 16.

 6            I have to introduce these enormously helpful documents very

 7    briefly.  They are available and, in a sense, they will supplement the

 8    answers that I am going to give on particular topics and I hope that they

 9    will be helpful.  All of this material has, of course, been provided in

10    electronic format to assist you further.

11            But if I can go through a few more documents, and quite rapidly,

12    and if I do go too fast for the interpreters, I hope they will let me

13    know.

14            Yes, I'm dealing with things in chronological order:  316.2, the

15    tape of -- just to remind you, this is -- 330, an address of Kordic,

16    underlining the points that are relevant, Croatian territory and all those

17    matters.  A bit further down, "... want to liberate occupied

18    territories."

19            Next document, 609, January 1993, Exhibit 395.1.  Significance;

20    this is Petkovic to Colonels Kordic and Blaskic, weakening lines of

21    defence to Chetniks.  Why?  Because there was another target in sight.

22            396.1, 26th of January, 1993 to Blaskic, the Vitezovi unit was

23    engaged at the order of Colonel Kordic.  It cannot be escaped what these

24    documents mean, in our respectful submission.

25            421.4, let me just pause there for one minute before I race on too

Page 28276

 1    fast.  The history of events, of course, has now passed the 20th of

 2    January, and the 20th of January is a truly informative event.  It matters

 3    not, it may be thought, whether it was Kostroman or Kordic who was

 4    offended by being stopped and searched.  That doesn't matter.  And

 5    apparently we are taken to task for changing our position on that.  We

 6    call the evidence, it's the evidence that matters and it doesn't -- we

 7    don't -- we are not concerned with the outcome save to get the truth to

 8    you.

 9            JUDGE MAY:  I'm sorry to interrupt, but I just want to be sure

10    about this.  This is the Kacuni checkpoint incident.

11            MR. NICE:  Yes.

12            JUDGE MAY:  And your case originally was that it was Kordic.

13            MR. NICE:  That's right, yes.

14            JUDGE MAY:  I do not criticise it if you change your position,

15    given the state of the evidence.  A party is entitled to do that as a

16    realistic concession of assistance, but so we can understand it for our

17    purposes, do you continue to suggest that Kordic was involved in this and

18    then, of course, leading up to the murder of Mirsad Delija?

19            MR. NICE:  Involved, yes.  At present, the evidence would seem to

20    turn to a contrary conclusion at the moment, on balance, fairly clearly.

21    And can I make those answers good by starting the rather long exercise of

22    looking at the war diary, which now comes into play.

23            The Chamber's had it.  It came late to the case.  It hasn't been

24    seen very much by -- as part of the public part of the trial, and there

25    are a number of pages that I want to look at.

Page 28277

 1            If Mr. Scott will be good enough, they are page numbered in the

 2    bottom right-hand corner and we are probably going to look at, if time

 3    allows, a great number.

 4            Page 11 is the 20th of January, and page 12 is the rest of it.  We

 5    see at 1650 the report that it's Kostroman, which suggests it is

 6    Kostroman.  Why would they make that up?  An hour and five minutes later,

 7    he's released.  And over the page, just switching the page at the top, was

 8    freed with the assistance of Kordic, so that -- the full answer to Your

 9    Honour's question is the evidence would certainly now suggest Kostroman,

10    but he was involved.

11            What's truly important about this incident is both the mayor

12    Maric's concession which he made, whatever failings he had as a witness,

13    that everything that happened in Busovaca on the 20th - the bombings and

14    the killing of the young man - followed on from that affront.  But more

15    than that, from a defence document produced last week, I haven't to hand

16    and the Chamber will remember it, where it's suggested, and this may be

17    simply an excuse, that the victim brought it on himself by approaching

18    searching HVO soldiers with a hand grenade.

19            The document was revealing because it says, effectively, "We

20    thought this was the house of the man who had stopped us at the

21    checkpoint."  It says, in fact, it was the brother of MD.  They were

22    searching for the man who had caused the affront.  And if you look at the

23    text of that document, it is as clear as can be.  And, of course, what

24    we've now heard about hand grenades and so on, it is all pretty late

25    stuff.

Page 28278

 1            Mr. Lopez-Terres reminds me that it is in another document, 461.

 2    I shan't take you to it.  The people identified as some of the murderers

 3    are also known to be Vukadinovic and Charlie, known to be men, bodyguards

 4    of Kordic.  So that on this day, the 20th of January, we can see the

 5    nature of the state that is in operation.  I am reminded of a caution that

 6    I am invited, and I think sensibly, by one of my colleagues, to impress

 7    upon you.  This parastate has to be looked at realistically for what it

 8    was and not for what it wasn't.

 9            For example, when we look at legal authority lines and matters of

10    that sort, it was something between what it wanted to be and something

11    else.  But it's the reality of the place that has to be looked at.  The

12    reality is that if you, in the vernacular, messed with one of the leaders,

13    this was what would happen or could happen to you.  And the mayor,

14    Maric's, answers on that topic are, on this issue, helpful.

15            If we go to page 17 of the diary -- and I shall now try to deal

16    with things chronologically, which will probably fail, but I will try.

17    Page 17, we see 24th of January, Kordic asking for a review of the

18    situation in the central zone.

19            If we go over now to page -- on a different topic, page 20, on the

20    27th of January, we can see that at the foot of the page, we can see

21    established after checks that members of the Vitez Company have

22    disappeared.  The Vitez Company already being named on this occasion as

23    victims.

24            Go over to page 22, please.  We are now up to the 29th of

25    January.  A very important entry at the foot of the page for this is

Page 28279

 1    Mr. Kordic called and asked for artillery to be opened on the region of

 2    Bezici.  What is that, if it is not command of military matters?  But that

 3    was not the first documented example of his involvement in artillery

 4    matters, because, and perhaps I can summarise this for you, in the

 5    document 447.1, the lengthy report from the artillery officer Batinic, he

 6    deals with five occasions of Kordic's intervention and one of them which

 7    he managed to resist by advice on the 27th was followed by one on the

 8    28th.  On this occasion - perhaps we could just lay this on the ELMO - on

 9    the 28th, Colonel Kordic asked that targets the auto loop in Lasva and the

10    village of Hozanovici be processed with the 107-millimetre VBR, which was

11    done within 60 minutes.  He was in charge, let there be no doubt about it,

12    and there are other references by Batinic, as we know.

13            Back to the diary, please.  If we can go from page 22, which had

14    his request for artillery, to be opened to page 23 at the top, Mr. Kordic

15    called again and asked that the order be carried out.  So quite insistent

16    on what he was having done.

17            Page 24 comes next, and we are now still at the end of January.

18    Yes, 24th, 1515 hours.  "Mario Cerkez reporting that a mortar has finished

19    firing with panic and people fleeing."

20            If we look at the next document, which is 421.4, this is a

21    document for the 30th of January.  This is an order so described from

22    Kordic, sending the Tomasevic Brigade to Busovaca, and the Tomasevic

23    Brigade commander being responsible for realisation of that order.

24            If we go to the next page in the diary, we see -- yes, page 25.

25    Forget the note in the right-hand corner which has been put on by some

Page 28280













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14   and French transcripts.












Page 28281

 1    other person who is irrelevant.  1220, Chief of Zenica Medical Corps asks

 2    for Blaskic or Kordic, showing maybe equality of responsibility in the

 3    ideas of others.

 4            Page 26 comes next, please.  "UNPROFOR called.  There's a meeting

 5    tomorrow, Vitez, Morillon, Kordic, asking that the HVO confirm the

 6    meeting."  His position could hardly be clearer in the eyes of many.

 7            If we go over to page 28, at the foot of page 28 -- we're on the

 8    2nd of February.  I beg your pardon.  Whatever that reads, that 3rd of

 9    April thing, it's in fact not spelt out as a word; it's writing.  And what

10    we have at the -- no.  I'm so sorry.  We needn't trouble with this one.  I

11    don't think it's significant, because the entry at the foot of the page is

12    in fact separate entries, so we can disregard it.

13            But this one we can't disregard, on the 2nd of February.  This is

14    an order from Kordic, 2nd of February, and it's 437.1, and it orders the

15    return of the Bruno Busic unit to Novi Travnik.  Complete authority.  The

16    documents can't be counted.  I'm reminded - I'm grateful to

17    Mr. Lopez-Terres - that there's a slightly earlier document, 421.4, dated

18    the 30th of January, where Kordic is recording under an order that he has

19    a company of Tomasevic Brigade soldiers to Busovaca and one company in

20    reserve in Vitez, and so on.

21            Now, before we pass from January - forgive my back - and again

22    something that may not have been particularly well dealt with at any

23    public session of this Court, on the 24th of January, in an overheard

24    conversation between Kordic and -- not overheard; a captured

25    conversation.  I've forgotten the word.  Intercepted.  Thank you,

Page 28282

 1    Ms. Somers.  Yes.  In a conversation on the 24th, he's heard saying to

 2    Blaskic, "Let me have the VBR, the multiple-rocket launcher.  Get it ready

 3    for me for Kacuni and Lugovi over here.  Let me hear it roar."  He goes on

 4    to say, "Prepare everything.  Select the targets for mortars, everything.

 5    Let's burn everything."

 6            He makes a reference, at line 15, to Batinic getting the VBR ready

 7    for Zenica, and he goes on to say this of his conversation with Batinic,

 8    presumably, but it's not necessarily clear:  "I told him he won't do

 9    anything without an order.  I told him we would strike if Zenica reacts.

10    Otherwise we won't; just Kacuni."

11            The same tape reflects on the killing of the two men.  There's

12    some confusion again in the documents between whether it was one or two,

13    but clearly it seems to be two men at the checkpoint on the 20th [sic],

14    and he then goes on to say, "One hundred should be killed for every one of

15    ours."

16            And over the page on this same transcript, when asked by Blaskic,

17    we'll agree on what comes next, he says, "You just squeeze them all and

18    keep an eye, especially on those in Fojnica, Kakanj, and Visoko over

19    there."

20            This is the wording of a man in charge and not just of any small

21    area.

22            If we go to the diary at page 30 in the sequence of events -- I'm

23    sorry.  Apparently I said "20th."  I meant 24th.  The Chamber will not

24    have been misled, I hope.

25            Page 20 of the diary -- 30, just bearing in mind when things are

Page 28283

 1    said of the inability of these people to move about, that at the top of

 2    this page for the end of January, there's a reference to a helicopter

 3    pilot who has to be transported to Prozor because he's needed by the

 4    Croatian army.  That says things about the ability to travel.  It also

 5    says things about the involvement of Croatia.

 6            If we move to the 4th of February, an order, 439.2, 4th of

 7    February:  "Because of the attack by Muslim forces from the village of

 8    Dusina, and on the basis of an oral order by Colonel Kordic," and then he

 9    makes instructions for the use of the 107-millimetre rocket launcher.

10            The diary, at page 33 - no, I don't think we - no, we can move on

11    from that to save time.  Sorry.  But at page 34, we see at the foot of the

12    page, item 7:  "After consultations with Mr. Dario Kordic, since the

13    detonators and technical materials can at the same stage be used for

14    military purposes, we can't comply with your request for procurement."  He

15    was involved in everything, and lots of things that were military.

16            Over the page, for the 19th of February, I think -- no, I needn't

17    trouble with that.  I needn't trouble with that.

18            501.1, please.  This is dated the 27th of February.  It's a report

19    and it says this:  "After operations by Muslim forces in Busovaca

20    municipality, the unit reports on the order of Kordic."  This is the

21    Vitezovi, I think, if you look at the top of the page.  Yes, there it is.

22    In charge of a special purpose unit without, it may be thought, any doubt.

23            If we go to the 1st of March -- no, I needn't trouble with that.

24    I'm simply recording that the first formal signs of creation of the Vitez

25    Brigade are on the 1st of March and they're not later than that, and that

Page 28284

 1    was Exhibit 516.2.

 2            Your Honour will appreciate I'm trying to exclude items in

 3    interests of speed.  There are lots of intervening references in the diary

 4    you can find, if you go through it, to continuing meetings between Kordic

 5    and -- or contacts between Kordic and Blaskic.

 6            On the 22nd of March -- yes, 22nd of March.  This relates to

 7    Cerkez.  Yes, 569.1.  I'm sorry that this exercise will take a few more

 8    minutes, but it is, of course, apart from being valuable in any event,

 9    because the Chamber hasn't gone through the documents in detail, it is in

10    part responsive to the questions that Your Honour asked and that I'll deal

11    with probably after I've gone through the documentary exercise.  This is

12    the 22nd of March and it's from Cerkez and it deals with the formations

13    that existed at that time, and 30 soldiers in Busovaca set out there.

14            Thank you very much.  Next document, one with which we're very

15    familiar, the 14th of April, a document that was subject -- and 653, isn't

16    it?  653.  This was a document of which many witness were asked for their

17    interpretation.  The reality must be, whatever was attempted by the Cerkez

18    witnesses in particular, these are Viteska Brigade soldiers.  And if we

19    look slightly higher up the document within the 1st Company, not in Ahmici

20    itself, because Ahmici was a solely Muslim village, but roundabout

21    Nadioci, Santici, oh, yes, soldiers there.  And indeed, the Chamber will

22    know that in Exhibit 505 there's plenty of reference there to soldiers

23    from that same area, and we can look at that in detail if necessary, but I

24    hope not.

25            If we come now to the 15th of April -- and although we approach

Page 28285

 1    Ahmici and talk of Ahmici, we have to bear in mind this isn't, even for

 2    this period of time, it's not just about Ahmici.  There were killings

 3    elsewhere, in Vitez itself and elsewhere.  Of course, it's not that

 4    narrowly defined.  When we come to the 15th, there's a topic that I'll try

 5    to deal with at a later session in a single, if I can, private session,

 6    but we see at the foot of page 68, at 1730, a meeting referred to

 7    involving various people.  We then see on document 657.2 that, exactly one

 8    hour later, there is an urgent order for the mobilisation of all units,

 9    consistent with evidence the Chamber has heard.

10            Can we go to page 69 of the document?  Now, interestingly enough,

11    at the top of page 69 is where in the diary we have the first entry for

12    the 16th of April.  It speaks of something happening at 545 hours from the

13    direction of the town, probably an artillery attack.  Later, the

14    detonations intensified, shooting from small arms could be heard, and so

15    on.  It's rather calculatedly, it may be thought, neutral as to who was

16    attacking whom.

17            The Chamber is well aware of the 1.30 orders.  This one happens to

18    be 343/1 and there are several of them.  The 1.30 orders that go to show,

19    if they are genuine, then it's for the Chamber to decide, but there they

20    are, 1.30.  They are orders raised at 1.30, in this case to control part

21    of the Kaonik and Dubrava road, and this is going to the 4th Battalion and

22    to Ljubicic himself.  And the Chamber will remember the significance of

23    these documents as a whole is that they identify -- the others do, in any

24    event, they identify two various troop groups, who their neighbours will

25    be including the Viteska Brigade so that, one way or another, it's clear

Page 28286

 1    that there was a comprehensive order at some stage of the night and that

 2    each group should know who his neighbours were.

 3            Item 5 on this document, other elements of the order shall be in

 4    accordance with earlier items and, indeed, moving to document 676, the

 5    specific 1.30 order to Cerkez himself, that also ends at the foot of the

 6    page with that same dark remark, it may be, if, as is the Prosecution's

 7    case, other points of command had, indeed, been made earlier on before

 8    half past 1.00 at midnight on the 16th, and it was those orders that were

 9    to lead to the deaths of so many people on the 16th.

10            But if we go back to page 69 of the diary, we see no reference to

11    these earlier orders, no reference to Ahmici, no reference to what was

12    going to happen there.  And indeed it's our case that, even at that stage

13    and of necessity, there may have been some caution in what was being

14    written into the document.  And we'll see an example of this rather more

15    dramatically later.  A caution because, of course, you cannot write down

16    in any record, even your own, that you are about to commit a wholly

17    inexcusable military operation thus, maybe, that first entry being,

18    perhaps, intentionally, perhaps artfully ambiguous as to what was going

19    on.

20            What you do see at the foot of this same page is that the Zrinjski

21    Brigade has to open fire on Vranjska, which is then burning.  Now, from

22    this moment on, and I think Your Honour remarked on this at an earlier

23    stage of the proceedings, there are lots of contacts throughout the day

24    between Kordic and base or Kordic and Blaskic, himself.

25            So far as Cerkez is concerned, we can see his involvement at page

Page 28287

 1    70 as an example.  At 8.55 to make contact with the mixed artillery

 2    battalion, at 9.00 blocking the fire station building in Vitez.

 3            At page 71, at five minutes past 9.00 on the day when people were

 4    being butchered in Ahmici, Blaskic is with Kordic, reporting on the

 5    situation.

 6            At page 72, at 9.30, we see further discussions at 9.30 with the

 7    MTD and Batinic, and at 9.37, requesting monitoring and repair from the

 8    field from Cerkez in connection with artillery.

 9            We then see at 73, perhaps interestingly as it's part of the

10    picture revealed by this document, but at 73 at 9.50 and 9.55, some

11    attention being given to writing a press statement, a treacherous attack

12    by the Muslim forces, not a word about the truth of what had gone on.

13            At page 74 at 10.15, Kraljevic and Blaskic totalling the dead.  At

14    10.30, speaking - that's on page 75 - talking to Kordic, keeping him

15    informed of the situation.

16            And then at 76, and at 11.20, an interesting entry.  The Chamber

17    will recall that when Bertovic was called on Cerkez's behalf, he defined

18    as the area they had to control that night a narrow band to the south of

19    Vitez.  And despite an order that would have suggested the contrary, he

20    would have nothing of the fact that they had anything to do with Donja

21    Veceriska to the left.  That's a subject of great embarrassment because

22    that was the scene of another serious and major killing, massacre.

23            And, of course, they don't want to be involved with that.  But the

24    truth is here revealed, page 76, 11.20:  Marin calling Cerkez for

25    ammunition support for Donja Veceriska.  They were all and inevitably

Page 28288

 1    involved in that and, indeed, although it's never been explained by

 2    Defence witnesses, the order to Cerkez that we looked at, 767,

 3    specifically says they have to deal with the broader area of Donja

 4    Veceriska.

 5            I take you through these matters not least because I want to deal,

 6    and at one go, with the answer to your question about his involvement,

 7    that is, Cerkez's involvement in all of this.

 8            At page 78 in the diary, at 1207, a further situation report to

 9    Kordic [sic].  At page 80, we see -- I beg your pardon.  Page 78, 1207,

10    that's Mario Cerkez, not Kordic.  I'm grateful.

11            At page 80, again for Cerkez, 1250, contact with Blaskic, but at

12    1303, "Slavko M called Mario, said it was finished off down there," is

13    asking for a correction to submit a report about the effect of the fire.

14            Cerkez and his groups were fully involved in an overall plan.

15    Interestingly enough at 81, just showing the nature of this sort of

16    document:  1320, Marin called Mario Cerkez.  "Did the guests arrive in

17    Donja and Gornja Veceriska?"  The guests arrived, the Viteska Brigade.

18    They are identified, but it was known that there was outside forces and

19    there's been other evidence of outside forces playing a significant role.

20    How long were they there?  Why were they there?

21            Page 83, you see the same topic covered at 1339, "Are the guests

22    with you to help out?"  That's the way they chose to write about their

23    straightforward military operation as they would now have you believe this

24    was.

25            Page 85, 1430, Kordic calling Blaskic, exchange of views.  Their

Page 28289

 1    position quite clear.

 2            Page 87, an important page in this diary.  At 1500, Cerkez saying

 3    the forces were moving from Zenica.  But at 1508, a report arrives at

 4    1450.  This is the report, the number is 125 of 12, in fact, but this is

 5    about the same time.  Yes, 671.4.  "The village of Donja Veceriska has

 6    been 70 per cent done.  The village of Ahmici has been 70 per cent done."

 7    And reference to the as and what has happened to them.  Paragraph 2,

 8    "Vranjska and Kruscica is difficult, our units have no chance to move

 9    forward," and so on.

10            Now, there was an effort, I think, to suggest that in a rather odd

11    way, that this was all just the gathering of information.  It was no such

12    thing.  The realities are, in the same way as one group of troops have to

13    know what the neighbouring troops are doing, the realities are that it was

14    a joint plan, jointly executed; it had to be, on Cerkez's territory, and

15    in relation to that, he was bound to have authority.  What he is reporting

16    on is what, as it were, what they have done collectively.

17            Now, there is a document that no doubt may be referred to or may

18    be referred to suggesting that he is not responsible for Ahmici.  We've

19    looked at it.  The Prosecution put it in in order to try to get the

20    earliest possible commentary on it.  Well, that all depends on your view,

21    doesn't it?  If you're looking at the thing from a narrow point of view,

22    into Ahmici itself maybe not or maybe not that day.  That doesn't matter.

23    If you are part of a plan, you are involved and culpable and fully

24    culpable.

25            What we have to have in mind, if I may respectfully say so, is

Page 28290

 1    this:  When the fine distinctions that will be urged on you by Defence

 2    counsel are considered, put ourselves in the position proposed by the

 3    Defence which will presumably be something to the effect of:  Well, sadly

 4    got involved, wholly ignorant of what was happening next door to him.

 5            Where is the post facto complaint?  Nowhere.  Where is the

 6    disassociation from what, within days, became clear as a major crime?

 7    Nowhere.  But then, where, in this book, this diary, is there any

 8    reference to Ahmici?  Almost nowhere, because it had been kept from the

 9    pages.

10            673.6, from Cerkez a little earlier, at 12.00, said this in

11    relation to what he had no doubt reported on as 70 per cent done: "Based

12    on the above, it can be concluded," item 4, "that the course of military

13    activities has not been going according to the foreseen plan.  And it is

14    necessary to include artillery."

15            Was there just the one plan?  We would say there was, and he knew

16    perfectly well what he was engaged in.

17            JUDGE MAY:  Before you move from there, if you are, we would be

18    grateful to hear from you how you put the case in relation to Mr. Kordic

19    and the events that day.  You've referred to these, I take them to be

20    telephone calls, which are referred to in the log.

21            MR. NICE:  Yes, certainly.

22            JUDGE MAY:  If you say they are something different, perhaps you

23    can tell us what they are.  But in due course, we would wish to hear how

24    it is you put the case on that particular point.

25            MR. NICE:  Certainly.  I can deal with it now or at the end of the

Page 28291

 1    period of time.  Perhaps I will deal with it at the end of the period of

 2    time that I'm dealing with.  I'm sorry, I've got to go back briefly to

 3    this, this one which is an important document, and it's 692.3.

 4            This, of course, again, shows Cerkez's complete involvement at

 5    10.35, being an order to the commander of the Viteska Brigade regarding an

 6    earlier report, "Take the villages of Donja Veceriska, Ahmici, Sivrino

 7    Selo, and Verhovine."  Could not be clearer.  I'll deal in private session

 8    with such other evidence, as there may be more to discuss on this topic,

 9    but that order fits with and only with complete involvement, and this is a

10    point that can be had in -- borne in mind if the Chamber is pressed to pay

11    attention to the proposition that Cerkez was merely gathering information

12    from others.

13            This document shows, as all the documents show, that any commander

14    was fully entrusted with the knowledge of, and information coming from,

15    those commanding the neighbouring units.  And that can only happen if, in

16    the vernacular, they were all in it.  The Prosecution's case is that they

17    undoubtedly were.

18            If we then go on to page 89 of the diary, further to confirm the

19    Donja Veceriska point at 1550 hours, Marin called Mario Cerkez to report

20    about the situation in Veceriska, and at 1552, Kordic calls again.

21            At page 90 -- firing all our positions, 1552, called and reported

22    that were firing at our positions in Kruscica and Stipceve.  Well, now, of

23    course, retaliation was inevitable and may have been swift, but it was

24    retaliation and it was not the initiating attack or anything like it.

25            Perhaps we can go to page 93 for the picture of the night at 1741,

Page 28292

 1    Kraljevic reporting to Blaskic about the task that was assigned to him.

 2            And then, most revealingly of all, at page 94, and first of all,

 3    at a time that's slightly illegible, 1750-something, Dusko and Cerkez and

 4    Pasko, Donja Veceriska, Ahmici, the first reference to Ahmici, Vranjska,

 5    Verhovine, they have no forces for reinforcements in these areas.  The HVO

 6    is carrying out arresting people.  Kordic calling Blaskic, "Pasko has

 7    finished it all off and is pressing on."  A telegram was intercepted.

 8    Panic broke out in their ranks.

 9            I understand that from one of the closing briefs for the Defence,

10    it's suggested that this document should be interpreted not as Pasko

11    telling Kordic, but as Pasko telling Blaskic, and Blaskic passing the

12    message on.  We respectfully resist that interpretation.  The Chamber has

13    heard quite enough of the contacts between Kordic and Ljubicic to conclude

14    otherwise.  But, even if it is that way around, it makes little, if any,

15    difference because it shows a complete sharing of information.  It shows,

16    if the Chamber is satisfied that Pasko was at the forefront of the

17    killing, it shows an ability completely to share a report on the product

18    of this deathly plan.

19            Perhaps we could go to page 98.  At 1955 hours, Skopljak receiving

20    information from Cerkez that he hadn't finished off everything.  And we

21    then see a combat order at 2000 hours in relation to Kuber.

22            Well, Your Honours, that's a great deal, and I'll have to take you

23    to a few more details a little bit later.  There's one at 105, I needn't

24    take you to it, I'll just give you the page numbers now, where Cerkez asks

25    for the opening of fire.

Page 28293

 1            There's one with Kordic at page 113 at 1314 with Kordic saying,

 2    "It was not us firing just now.  It was the Muslims."

 3            At page 117, perhaps we'll look at that, at the top of the page,

 4    1635, TO through to Kordic, submitted a report on the current situation,

 5    these events are being reported one-sidedly.  He has all the information,

 6    even that Zoran and Marko were wounded and all the rest.

 7            And then at page 120, this alleged defensive attack, I beg your

 8    pardon, this alleged defence.  1858 Blaskic to Cerkez, "Loncari is ours."

 9    That's no defence.

10            And at page 121 -- sorry, that was 1858.  121 at the foot, Kordic

11    calling Blaskic, "He told me that the brunt of the attack was headed our

12    way.  We've hammered Kuber.  It's urgent, bridge the gap where we engage.

13    Send reinforcements to Pasko so that he can come to close the gap."  So

14    that's between Kordic and Blaskic, closing the gap.  Blaskic to Cerkez:

15    "Main forces to be transferred to close the gap."

16            And then -- I needn't trouble with that.  We're now actually on to

17    the 18th, so that I can perhaps move a little bit more slowly.

18            Can we look at another exhibit for the 17th?  I am coming to the

19    end of this exercise, I'm happy to say, but it is necessary.  Perhaps I'll

20    take a break and deal with Your Honour's question because, although the

21    whole Ahmici and associated areas was a continuing event, it's convenient

22    to pause.

23            Kordic -- or Cerkez.  Cerkez.  Let's deal with Cerkez here.  This

24    was a single joint attack.  His initial duties, it may well be, from the

25    totality of the evidence, were to secure part of the territory, and indeed

Page 28294

 1    included in those duties was obstruction of UNPROFOR, it may be, from all

 2    the evidence.  Thereafter, from the documentation that you've looked at,

 3    he was fully involved.  He was trusted with the instruction to take

 4    Ahmici, as we have seen.  That can only reflect either, one, that he was

 5    personally involved and his troops were personally involved; or that he

 6    was effectively the commander in the field with a responsibility for all

 7    the troops that were working there.  Either interpretation fits with his

 8    reporting back, which does not fit at all with the suggestion that he was

 9    merely a messenger boy, because no such messenger would be trusted with

10    the reports back from men who had engaged in massive crime.

11            It is worth bearing in mind, as we saw from Exhibit 653, that

12    there were indeed Viteska Brigade soldiers in the area, because Ahmici and

13    the neighbouring villages almost merge as one, being differentiated

14    according to ethnic composition substantially.  It is worth noting that

15    there were individual Viteska Brigade members found dead that night

16    following the fighting.  And so far as one witness is concerned -- no,

17    I'll have to deal with that in private session, actually, obeying the

18    normal rules.

19            JUDGE MAY:  The Viteska Brigade members found dead in Ahmici, I

20    think there was one; isn't that the evidence?

21            MR. NICE:  I think so, Your Honour, yes.  Or several, it may be.

22    I'll get -- wounded as well, yes.

23                          [Prosecution counsel confer]

24            MR. NICE:  I think you'll find that probably dealt with in the

25    appendix to the Cerkez-specific documents that I showed you when we first

Page 28295

 1    sat after the break; and if not, I'll come back to it, if I have time and

 2    remember, later.

 3            Now, that leaves Cerkez in the position of having the clearest

 4    possible 7(1) responsibility.  Of course, if not, then 7(3) would be

 5    effective, but 7(1) for sure.

 6            The Chamber will probably also want to have -- no, again I can't

 7    deal with that.

 8            Can I move on to the remaining documents that I want to cover and

 9    then turn to other topics, but we'll stay with the diary for the time

10    being and deal with some other documents as well.

11            The 17th of April saw document 694.3 from Kraljevic to head of

12    defence, Stojic.  What it said was this of the Vitezovi's role:

13            "We have managed to clear a large part of the dastardly Muslim

14    forces and I am constantly attacking.  Their strongest stronghold is where

15    their headquarters are.  At the same time, we are engaged in the front

16    ranks in the cleaning of the surrounding villages and interventions to

17    reclaim the lines we lost.  Three members of the Vitezovi have been

18    killed.  We're short of ammunition."  A document that emphatically and

19    clearly reveals an attack, says nothing of defence, and uses the word so

20    revealing, "cleaning," which was seen in another document and, indeed, I

21    think, interpreted as inevitable.  It had to be by a Cerkez Defence

22    witness, meaning not clean but cleared of Muslims.

23            There are more references involving Cerkez to Donja Veceriska on

24    page 131.  On page 134, the brigade is discussing an attack on Zepce,

25    showing again the unity of the control of that part of Bosnia.

Page 28296

 1            We can come, I think, conveniently, to page 137 and page 138,

 2    which need a certain amount of explanation.  We are now on page 137 in

 3    your papers, on the 19th of April, the day of the Zenica shelling.  First

 4    of all, we can see, at 0930, that Cerkez called the Colonel and asked for

 5    fire at a particular target, which is given a code reference.  And we can

 6    probably see again a further reference to Zepce immediately below.  And

 7    then at 0950, we can see some reference to the size of artillery that

 8    appeared to be available to them, 122 millimetres included.

 9            When Your Honours go to page 138, something is not clear on the

10    English version that needs to be made clear, it being revealed in the

11    original and also touched on at the end of this document, whereas I know

12    Your Honour is aware from an earlier observation Blaskic signs the

13    document but also observes that two pages have been torn out, pages 62 and

14    63.  The original exhibit is available and is an exhibit in the case, and

15    the page numbers can be seen in the top right-hand corner of a

16    double-entry ledger book, so that two pages is excising four sides.  The

17    two pages that have been excised lie immediately between the entry for ten

18    minutes past 1000 and the entry for 1400 on that page, the time of the

19    Zenica shelling.

20            Blaskic claimed in his endorsement that the omission was noticed

21    on the 27th of June, the omission of the pages torn out.  The question

22    arises:  Why?  The Prosecution invite the Chamber to say it can be

23    satisfied, looking at other entries in this book, that there was an effort

24    to keep this book clean of what was too significant, and that if somebody

25    on duty then had been too revealing in what was written down, the only way

Page 28297

 1    to deal with it would be by removing the pages, and Zenica does not

 2    feature otherwise, at least as to those particular attacks which are fully

 3    argued in our briefs.

 4            JUDGE MAY:  Mr. Nice, that may be right, that there's something

 5    missing here from the diary, and of course it's open to a court to draw

 6    inferences, but the fact that something is missing does not prove

 7    anything.  And one matter which you can assist us on is the connection

 8    between the accused and the Zenica shelling.  You have called much

 9    evidence about the shelling, but you can assist us as to what your case is

10    which links the accused to it.  Do that when it's convenient.

11            MR. NICE:  Well, Your Honour will find elsewhere, indeed, in this

12    particular document and in other reports references to shelling Zenica.

13    You'll recall Kordic's threat in the tapped, or whatever it is, phone call

14    of the 24th of January to his intention to shell Zenica if certain things

15    happened.  And our case is not only that it is now clear on all the

16    evidence that it was indeed the HVO that shelled Zenica, but that it came

17    from this command room, and that you can see from all the documentation

18    we've looked at that, at that time, Kordic and Blaskic were communicating

19    at such a rate and sharing information in such a way that it can be quite

20    clear each was fully informed of the other's activities and nothing was

21    kept back, and that they were joint participants.  Much the same, it may

22    be thought, can be said of Cerkez, although he's at an obviously different

23    level because he's in the field, dealing with Ahmici.

24            In any event, if a major attack of this sort is entered into and

25    the attack takes particular lines not necessarily dealt with in detail

Page 28298

 1    with each individual of the attack, the consequences for those people who

 2    are in the management may still be the same.  You can't just dissociate

 3    yourself from a particular aspect of something that's done to some degree

 4    in the heat of the moment.  General principles of criminal liability may

 5    well arise.  That's why we've been looking at Cerkez and his involvement

 6    with artillery generally.  What happened at Zenica by the HVO was part of

 7    the general attack on Muslims conducted by, amongst other things,

 8    artillery, and they are all responsible for that.

 9            JUDGE MAY:  The evidence was that it was thought by the

10    Prosecution expert that the target was the radio station, as I

11    recollect --

12            MR. NICE:  Yes.

13            JUDGE MAY:  -- and the shells fell short.  So do you invite the

14    Trial Chamber to draw the inference that Mr. Kordic was associated in

15    command at the time with Colonel Blaskic, that this incident could not

16    have been as a result of activity by a local officer but must have been

17    ordered, and you say that the inference to draw is that the order came

18    from the command of the Operative Zone in which the accused was

19    associated?

20            MR. NICE:  We say -- indeed we say that, and it's perhaps helpful

21    to have in mind how valuable artillery pieces and ammunition were and the

22    care with which their movement is documented in these pages and as we see

23    in the Batinic report.

24            JUDGE MAY:  But it requires us, to be sure, that it was not the

25    activity of a local officer; it was a deliberate act, an order from much

Page 28299

 1    higher up.

 2            MR. NICE:  Unless I've missed it, Your Honour, I don't think

 3    there's any evidence that it was a rogue officer, apart from --

 4            JUDGE MAY:  No, but the question is:  What is the evidence the

 5    other way?  That must be a matter of inference.

 6            MR. NICE:  It, of course, would be a matter of inference, in the

 7    absence of a diary entry or other entry going to show the instruction

 8    being given.  But as to that, the Chamber can take into account the

 9    previous activity of Kordic in relation to Zenica and shelling; the

10    overall control over shelling and the movement of the devices by which

11    shells could be delivered; the contemporaneousness of this event with the

12    rest of the attack; the fact that probably by this time the tables were

13    beginning to be turned and therefore it's part of the continuing attack;

14    they need to raise the stakes.  And, of course, it comes at the same time

15    as the truck bomb, which is a straightforward act of terrorism, as parties

16    on both sides have had to agree, but traceable to the HVO.  These things

17    can't be separated, in our respectful submission; they are all part of the

18    same plan, manifestations of the same general desire.

19            There are, of course, some additional features for the Zenica

20    shelling in that there was a threat to the radio station not so very long

21    before, in fact, very shortly before the shelling occurred, and also that

22    there's evidence, I think, that that radio station was, if not hostile,

23    unfriendly to the Croat cause, and the only remaining radio station

24    broadcasting to that effect.  So it all fits.

25            Mr. Lopez-Terres has got a point that I'm likely to miss, and his

Page 28300

 1    points are usually always worth taking.  Would you just give me a minute.

 2                          [Prosecution counsel confer]

 3            MR. NICE:  Indeed it is a good point, and I had missed it, so let

 4    me put it on the ELMO straight away.  Indeed it is a good point and I had

 5    missed it, so let's put it on the ELMO.  It's 726.3.  This is a report

 6    from the Viteska Brigade and it's dated the 19th of April, so it's the

 7    same day.  Second page, we see this:  "If attacks intensify from the

 8    direction of Zenica, we propose the use of artillery.  The command of the

 9    Operational Zone and 4th Light Artillery Rocket Battalion," and so on.  It

10    all fits, and I'm very grateful to Mr. Lopez-Terres, as ever.

11            JUDGE MAY:  Again, as with the truck bomb, there's no direct

12    evidence against either of these accused.  In both cases, you are inviting

13    us to draw an inference from their positions in command, you're inviting

14    us to say that this was an operation which must have been ordered, and

15    you're inviting us to infer that the accused, as being persons in command,

16    must have participated in some way.

17            MR. NICE:  Indeed so, and there are two supplementary pieces of

18    evidence, or non-evidence in this case, of value.  In relation to the

19    truck bomb, they would need to get the explosives.  We know who had

20    control of all the factories.  There was a large quantity.  I thought at

21    one stage it was going to be suggested it was some creation of fertilizer,

22    but I don't think it is.  It required the local forces of authority to get

23    that quantity of explosives, and it was a very large quantity indeed.

24            Second point:  In either case, if there had been an act of a rogue

25    soldier, there would have been an inquiry and there would have been

Page 28301













13   Blank page inserted to ensure pagination corresponds between the English

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Page 28302

 1    discipline.  Now, there are a number of excuses raised, I believe, in the

 2    Defence briefs as to failure to investigate Ahmici because the Muslims had

 3    fled Zenica for a similar reason or something like that.  Hopeless, if I

 4    may say so.  You do not need always to have the victims to investigate

 5    crime.  With murders, you can't have the victims.  You can always

 6    investigate crime, if you've got a determination, by going to the people

 7    you suspect to be involved, or their colleagues, who will be able to tell

 8    you who was involved.  And it is, frankly, beyond belief to suggest that

 9    they didn't know on the ground, in that sort of society, at that time, who

10    did the truck bomb.  Likewise with the shelling.

11            JUDGE MAY:  Well, one of the suggestions in the evidence about the

12    truck bomb was that Darko Kraljevic was responsible.

13            MR. NICE:  Yes.

14            JUDGE MAY:  What is your evidence to negate that possibility?

15            MR. NICE:  I'm not sure that we have any to negate it, but - I'm

16    not sure - well, actually, I've forgotten what the state of the evidence

17    is now on that.  It's a long time ago.  But in any event --

18            JUDGE MAY:  It was a suggestion --

19            MR. NICE:  It was a suggestion --

20            JUDGE MAY:  -- that somebody --

21            MR. NICE:  Yes.

22            JUDGE MAY:  It was reported to a witness --

23            MR. NICE:  Something to that effect, yes.

24            JUDGE MAY:   It came into the evidence that way.  I merely raise

25    it as a supposition, nothing more.  Your task, if I may say so, is to

Page 28303

 1    negate these other possibilities.

 2            MR. NICE:  Of course, but that supposes that he would be doing it

 3    on his own and as a rogue as opposed to doing it involved and with the

 4    assistance of others.  And you have to -- I beg your pardon.  Would you

 5    also have in mind that we've had evidence of the local inhabitants

 6    being -- the local Croat inhabitants being warned to save themselves their

 7    lives, and so on, because it was going to happen.  By whatever means, the

 8    individual perpetrator doesn't in any sense signify that he wasn't

 9    commanded from above, wasn't involved with others.  Everything about this

10    goes to show it was planned and dreadfully executed to achieve what

11    terrorism is designed to achieve: a cracking of resistance.

12            JUDGE ROBINSON:  Mr. Nice, the questions asked by the Presiding

13    Judge raise the issue as to the law relating to the drawing of

14    inferences.  Much of your case, of course, hangs on inferences.

15    Inferences are drawn from facts, not out of thin air.  And importantly, as

16    I understand it, where two inferences are capable of being drawn, one in

17    favour of the Prosecution's argument and one in favour of the Defence,

18    you're obliged to draw the one that favours the Defence because they are

19    of equal weight and ultimately the Prosecutor has the burden.

20            MR. NICE:  Yes.  I don't challenge that at all.  It's, of course,

21    a familiar proposition wherever the standard is proof beyond reasonable

22    doubt.  But applying that test doesn't mean looking for or allowing

23    fanciful inferences to be drawn - I don't mean that offensively - but

24    fanciful inferences and mere speculation.  One has to look at the overall

25    facts and to decide what they prove.  It's often said, isn't it, of cases

Page 28304

 1    where inference is relied on that in fact -- or circumstances, I think is

 2    the phrase often used, isn't it?  Circumstantial evidence.  Circumstantial

 3    evidence is frequently the strongest evidence, because people lie and

 4    circumstances don't.  And if you have a large military attack going on

 5    involving the targeting of an ethnic group, under the command of a

 6    powerful and senior figure in a small locality - dealing with the truck

 7    bomb - the possibility of a rogue individual countering the thrust of the

 8    commander's policy and -- one; the commander not detecting who it was,

 9    two; he is not to international observers to whom he's going to claim that

10    he is a legitimate warring party -- the possibility of his not

11    dissociating himself from the act to those people is unrealistic, in our

12    respectful submission.

13            These facts on both cases, different facts, of course, but on both

14    examples show that the truck bomb and the shelling ...

15            JUDGE ROBINSON:  I think what the Presiding Judge may have been

16    referring to is that you will need, I think, something more than the mere

17    leadership role of the accused to persuade the Chamber to draw the

18    inferences and, in particular, where there is evidence of the involvement

19    of another person, I think it may be difficult.

20            MR. NICE:  Well, first of all, there is, of course, a great deal

21    more evidence than mere leadership role - there always has been - and it's

22    grown substantially in the course of the case and I've taken you to

23    several bits of it in relation to both Kordic and Cerkez with the

24    documents and so on today, and I needn't revisit that.

25            Let me just look at the rest of Your Honour's question.

Page 28305

 1            So as a matter of fact, there is a great deal more evidence.  But

 2    I would respectfully, in any event, disagree with Your Honour's

 3    proposition or say that it's not one, on reflection, that would be

 4    correct.

 5            In a setting like this where you have a large enterprise - the

 6    attack, give it a neutral term - and you have the clear evidence of

 7    leadership, and you have evidence of expenditure, planning, execution, and

 8    so on, it would be -- it may be quite wrong to say that there is a gap

 9    between all that evidence and the inference of involvement by the leader

10    in what his men are doing.  That would be artificial, in our submission to

11    you, and would be to take the proposition about the drawing of inferences

12    one way or the other too far.

13            It would, indeed, be allowing for the fanciful interpretation to

14    have invaded your minds because, although we are firmly loyal to the test

15    of proof beyond a reasonable doubt, and indeed aware of the mass of

16    material that you have to deal with and the inevitable difficulties that

17    there are, at the end of the exercise; one, we must never let go of common

18    sense and the ordinary application of common sense; and two, these facts,

19    looked at as a whole, simply tell a story that can't be gainsaid that

20    easily.

21            It's always, as it were, a fanciful possibility for anything.  You

22    know, what's the analogy about inference?  You have a kitchen with a

23    saucer of milk.  You close the door on it, and you open the door, and the

24    milk is gone and there's a cat there.  Well, guess what the inference is?

25    And you say, well, on the other hand, somebody could have opened the

Page 28306

 1    window and put another cat in and the other cat jumped out.  One could

 2    always do that.

 3            There are always levels of imagination that we can apply to say,

 4    well, isn't there another possibility?  Here, you look at it all, in our

 5    respectful submission, including what was not done and what --

 6            JUDGE MAY:  It is the Prosecution who have to prove the case, not

 7    the other way about.  Therefore, the Prosecution have to establish and

 8    convince the Trial Chamber, first of all, that there is the evidence on

 9    which inferences can be drawn and, secondly, that the evidence will bear

10    the weight of the inferences which you invite the Trial Chamber to draw.

11            The appeals to common sense are appeals to something which is

12    fairly flexible and what we need, really, is, of course, evidence which is

13    specific and relevant to the particular issues.  But it may be that we've

14    covered that ground.

15            MR. NICE:  I think I've covered it.  I'm reminded that -- yes, I'm

16    reminded again by Mr. Lopez-Terres that Kalco amongst others, I think,

17    spoke of the Vitez Brigade launching an attack after the truck bomb,

18    thinking events were connected.  It was Vitez soldiers who warned the

19    detainees to go to the shelters on the evidence and, of course, this, as I

20    said earlier, was one of the examples where Kordic promised an

21    investigation which came to nothing.  And that tells against him, in a

22    significant way because, if he meant it, why didn't he do it?  He didn't

23    do it because he didn't mean it, and he didn't mean it because he was

24    involved.

25            Your Honour, if I've missed any bits of evidence which are

Page 28307

 1    important, since I will be on after lunch -- I can't remember when that

 2    starts, I think quite soon.

 3            JUDGE MAY:  Just one final point which is -- because I recollect

 4    Colonel Blaskic was acquitted in relation to the Zenica shelling.

 5            MR. NICE:  Yes, I suspect that Your Honour hasn't yet had an

 6    opportunity of getting through any of the briefs, let alone ours, but that

 7    point is dealt with there, and I can summarise our position in relation to

 8    that.

 9            The Chamber will recall that the Defence in this case called the

10    same expert who was called in the Blaskic case.  And if you look at the

11    Blaskic judgement, they pay some attention to the evidence of this

12    particular man.

13            He told us that the questions he was asked in Blaskic, the

14    technical questions he was asked which were all about height and fall of

15    shells were wholly irrelevant.  It was, you may judge, if you look at the

16    passage of cross-examination, it was a smoke screen.  It was designed to

17    put the Chamber off, and maybe it succeeded.  But in any event, the

18    evidence that we have in our case is different from, and significantly

19    stronger than, the evidence in Blaskic.

20            If you look again at the judgement in Blaskic, it's a finding not

21    that they didn't do it, it's a finding that, on the evidence before them,

22    they weren't satisfied so as to feel sure that they did it.  Well, that

23    was their judgement on their evidence.  We have more evidence and we

24    invite you to say that -- you are certainly not bound by that decision and

25    further, indeed, this evidence should satisfy you so that you're sure that

Page 28308

 1    that element can be laid at the door of his overall command.

 2            I see Your Honour is looking at the clock but --

 3            JUDGE MAY:  Well, we can take another five to ten minutes.

 4            MR. NICE:  Yes, because I'd like to get through some documents,

 5    and I will feel much more relaxed about assessing the rest of the time.

 6            Yes, page 140 in the diary, if we can just look at that, still on

 7    the 19th.  I suppose, and it's always helpful to have questions from the

 8    Bench, but particularly because it shows what the Court is considering and

 9    it helps us to work out how to help the Court.

10            If you look at this entry on the 19th at 1629, this is Kordic

11    calling Blaskic:  "They have captured the elevation.  We are pushing on to

12    the top of Kuber.  A little more to the top here.  Press for that.  Don't

13    touch the latter part and so on."  And Dusko Grubesic was at Kuber, I am

14    reminded.

15            Well, now, what does that -- that's a long report.  Any doubts?

16    Can there be any doubts but that Kordic was involved in what was happening

17    that day?  He's there at the end.  He's there before the -- let's go back

18    to page 137.  This was actually quite an interesting entry, but can't make

19    too much of it, but it's there.

20            You see what it reads is at 0930, it reads, "Cerkez called the

21    Colonel," and then it says, "Kordic," and then that was crossed out,

22    "Cerkez asking for the fire at the target," and a particular target is

23    given.  Perhaps a little unclear.  Maybe that was Cerkez, maybe it

24    wasn't.  But later on, and then we can look at the original to see what

25    interpretation you can make of that, but certainly by a couple of hours

Page 28309

 1    after or four hours after, at the most, I suppose, the Zenica incident,

 2    Kordic - so back to page 140, please - there he is involved with all

 3    that's going on that day.

 4            It doesn't stop there for that day, because if we go to page 142,

 5    and he's not talking about rifles here at 1740, Dario calling, "Has it

 6    gone off?  It's en route, and it is has been observed.  It went off

 7    towards R."  I'm afraid I can't help you immediately with what R is.

 8            And then at page 143 at 2140 hours, Kordic calling Blaskic for

 9    further coordination.  So fully involved that day, in our submission to

10    you.

11            We come to the 20th.  I'll see how much I can skip.  Contact with

12    Kiseljak, I needn't take you to that.

13            Page 146, 0820 in the morning.

14            JUDGE MAY:  Mr. Nice, of course we've had the opportunity or we

15    will have the opportunity of considering this, so merely highlight those

16    matters you want.

17            MR. NICE:  Certainly.  In which case Kordic calling Blaskic, a

18    report on what's done so far.

19            Perhaps I will just draw a line under that.  I think I have marked

20    one or two as particularly important, and the only reason I went through

21    it at length is because, if I may say so, having gone through it several

22    times myself, it's a document that repays rereading because it's dense in

23    information for the proper assistance of the Court, and it's all too easy

24    sometimes for me simply to say, well, it contains lots of references to

25    this and that.  Sometimes you've got to look at them in detail.  I would

Page 28310

 1    invite the Chamber to look at this document in detail when it comes to

 2    make its decisions about this part of the case.

 3            Can I look through the remaining entries to see if there is any

 4    that I particularly want to draw to your attention and, if not, then

 5    perhaps that would be a convenient moment.

 6            One -- I needn't take you to it but you can find a meeting with

 7    Kordic and Cerkez together with Blaskic on page 166.  I think there is one

 8    entry you'll want to look at for whatever interpretation it is, and it may

 9    not refer to the earlier date, almost certainly doesn't, but for

10    completeness, page 167, 1736, a third of the way down the page, from Nakic

11    about Zenica, "It's 100 per cent sure we didn't fire.  We have the full

12    name of the man who witnessed it, fired from Vlasic," and then reference

13    to the size of cannons, 132, 125 and 155; and then further references at

14    the foot of the page, Cerkez to Blaskic, "Don't open fire unless they fire

15    at us," and references to 152-millimetre Kiseljak.

16            If we go to the next page, 168, again these documents are worth

17    looking at, sometimes not only for what they contain but for what they

18    don't contain.  At 0830 in this particular morning, we see a reference to

19    a Vlado (redacted) reporting from a Santici village that an ambulance was

20    fired at and no one was wounded.  I draw that to your attention because

21    still nothing on Ahmici here.

22            Further references to Zepce.  Perhaps you should be troubled with

23    176 at 1438.  This really does show the role of Kordic and, again, it may

24    be argued that you can read this one two ways around, Kordic calling

25    Blaskic, asking for giving of targets which should be, "Have the guests

Page 28311

 1    reached you?  They have not."  That's right in it, in the vernacular.

 2            And then at the foot of the same page, at 1523, Blaskic calling

 3    Kordic, asking how it was going, submitting a report.  They have one more

 4    operation planned.

 5            Over the page, a little more relaxed with their terminology at

 6    1523, in the middle of the page, "The villages of Gomionica and Svinjarevo

 7    torched and cleansed, and the HVO set off three of them towards the

 8    village of Stojkovici and Gornji Zimci."

 9            And then at page 178, further references to Kiseljak between

10    Kordic and Blaskic.  And this most telling remark on 178 at 1755,

11    following the report, "They had three pieces.  One for me, one for you,

12    and one for Ignac."

13            JUDGE MAY:  Which day is this?

14            MR. NICE:  The day is, I think, the 25th of April.  I'm sorry, I

15    hadn't -- yes, it's the 25th of April.  The only other references I know I

16    was going to take you to was related to the convoy on the 28th, which is

17    touched on at page 190, or a convoy touched on twice at page 190 and 191

18    to counter the suggestion that the evidence of whatever it is, eight or

19    nine international observers, was all fantasy, and I think that's all I

20    need trouble you with.

21                          [Trial Chamber confers]

22            JUDGE ROBINSON:  Mr. Nice, you keep referring to the absences of

23    references to Ahmici.  You are asking us to infer from that that it was an

24    intention to conceal that action?

25            MR. NICE:  Yes, I've made several points about the things that

Page 28312

 1    aren't to be found in the diary, like that aren't to be found clear

 2    assertions that they were under the attack at the beginning and that that

 3    is a carefully neutral description from somebody who must have known the

 4    reality.  And, yes, if you were engaged in a legitimate fight in Ahmici,

 5    then you would expect it to be reported one way or another through this

 6    officer.  Of course, he doesn't cover everything, he only covers the

 7    things that come through him, but you might expect it to appear - and it

 8    is interesting - to put it no higher, significant, if higher than that, no

 9    reference.

10            JUDGE ROBINSON:  Thank you.

11            JUDGE MAY:  We'll adjourn now and sit again at ten past 2.00.

12                          --- Luncheon recess taken at 12.40 p.m.














Page 28313

 1                          --- On resuming at 2.13 p.m.

 2            JUDGE MAY:  It's just coming up to a quarter past.  Mr. Nice, I

 3    think you have an hour, less any time you want to take up with your

 4    rejoinder.

 5            MR. NICE:  I'll reserve 20 minutes, if I may, and so that gives

 6    me, I suppose, until 5 to.  And I'm sure the Chamber will recognise that

 7    with a case of this size, it is very difficult to conclude matters when

 8    there's so much to cover, which is why we prepared the documentation we

 9    did.  And there are, in fact, three more documents I want to explain to

10    you and introduce to you.

11            At the very end of your papers, if you would be so good, arguably

12    the most valuable document in the case, which is appendix 11, a very major

13    enterprise prepared by Ms. Bauer and Ms. Verhaag and Ms. Bock.  And of

14    course, subject to the necessary limitations, it's a document that draws

15    on all sources of material to try to tell the story chronologically.  And

16    anywhere you open will do, but for a particular reason I'm going to take

17    you, please, to page 161 and kill two birds with one stone.  But anywhere

18    you look at in this document, not only can you track easily by looking at

19    the third column what's happening over a period of time in any particular

20    location - you can simply cast your eye or finger down the page and pick

21    up all the Busovaca or all the Kiseljak or Vitez entries - but you can

22    equally, by looking at the bolded names in the block of text that

23    summarises either a document or a piece of evidence, you can pick up where

24    Kordic and Cerkez are identified.

25            The page that you're looking at, page 161, of course, deals with

Page 28314

 1    something we were touching on earlier and just shows how easy it is for

 2    all of us to overlook evidence in a case of this scale.  And I'm just

 3    going to tell you one or two of the additional bits of evidence on the

 4    truck bomb that we may have all overlooked:  Jozinovic being warned by a

 5    Croat neighbour, Kordic appearing on television saying that there would be

 6    other explosions of that kind.  That's line 5.  In the middle of the block

 7    of text, Zeko detained with other Muslims in the veterinary station in

 8    Vitez, which was under Viteska control, being told by a Viteska guard to

 9    go to the basement, then followed by the detonation.  And two lines

10    further on, the very same truck, on the evidence of the witness, having

11    been seen close to Cerkez's house shortly before.  Two lines after that,

12    Rebihic receiving telephone calls from the population of Vitez with advice

13    that they're to keep their windows open.  And then finally, three lines up

14    from the bottom, HVO soldiers advising the residents of an apartment block

15    to seek shelter.

16            Your Honour, a great deal more evidence, and of course, the

17    references are there to check.  We encourage you, if we may, to turn to

18    this document, as to the documents that analyse the evidence on a

19    defendant-by-defendant and count-by-count basis, because they show the

20    true and the deep picture that you actually have of events, and they will,

21    in our respectful submission, always take you to the conclusion that

22    what's been happening here is part of an overall plan in which these

23    defendants are involved in the various ways we've suggested.

24            Turning again to the Kraljevic question that Your Honour asked me,

25    yes, it was raised.  I checked it, I think.  It was raised in the sense it

Page 28315

 1    was asked of a couple of witnesses and, in a hearsay form, arose in that

 2    way and that way only.  But of course, true or false - and let's assume

 3    true for these purposes - that doesn't save Kordic, in whose company he

 4    was regularly seen.  False; well, that's consistent with one of the

 5    practices of these people, you may judge, either at the time or since, to

 6    blame other regular fall guys; Kraljevic for one, people coming from

 7    Herzegovina for another.  And of course, on that topic, the Court will

 8    recall indeed from documents we've seen this morning that those brigades

 9    that were being blamed for the violence that was happening in the spring

10    of 1993 are shown to have been indeed capable of being controlled and

11    being controlled on the orders by Kordic himself.

12            On this same topic, one of the remaining three documents that I

13    must refer you to -- no point in preparing these tools to help you unless

14    I tell you what they are.

15            Appendix 1 is a short document.  It comes immediately after the

16    brief itself, and is headed "Kordic's Associates."  The Chamber may think

17    it's helpful to have in mind, just in summary, how we put this aspect of

18    the case before turning to a number of associates not, in fact, Kraljevic

19    but that doesn't matter because there's evidence about that you can judge

20    for yourselves.

21            But what it says in the introduction on page 3 of annex 1,

22    Kordic's Associates, is exactly this:

23            "In considering fully the acts, conduct, and mens rea of the

24    accused Kordic, we submit that it is most appropriate and will assist the

25    Chamber to look also at his closest associates, to the circle of people he

Page 28316

 1    gathered around him for the purpose of planning, instigating and carrying

 2    out the crimes charged.

 3            As with any senior or top official, whether of a government, large

 4    corporation, a political party or a criminal organisation, it is not

 5    surprising if the more senior officers or personalities do not always

 6    involve themselves in the acts on the ground or directly dirty their own

 7    hands.  Instead, they act through confederates, agents, and surrogates."

 8            We say that's what happened here and, in part, that tracks back to

 9    one of His Honour Judge Robinson's questions this morning.

10            JUDGE MAY:  I've got two copies of annex 2 and not one of annex

11    1.

12            MR. NICE:  I hope you've got one of -- well, there's also annex 2

13    and annex 3.  I hope you've got annex 3.

14            Annex 2, Ms. Somers and Mr. Tomljanovich, is the Bosnian-Croat

15    policy underlying the charges.  I would, in a perfect world, as it were,

16    or perfect for us -- I'm so sorry.  I would have taken you through some

17    parts of that but time simply doesn't allow and it's one of the three or

18    three and a half documents that we specifically invite you to read.  That

19    is the brief, annex 2, annex 3, and the international armed conflict part

20    for sure.  The others, I think, really being tools for you to use as you

21    judge best.

22            This annex, and I must just deal with it in literally one

23    sentence, deals with how Tudjman knew that there was no peaceful solution,

24    that there was never going to be partition on a peaceful basis.  There

25    could be no deal.  And that that policy drives events.  Indeed, I was

Page 28317

 1    going to say later, but I think I can usefully say now, drawing on a

 2    phrase that was used over the break but is appropriate, really; military

 3    enterprise can solve political objectives.  And there is plenty of

 4    evidence here of political objectives.  There is plenty of evidence of

 5    military enterprise.  The link between the two is Kordic.

 6            Annex 3, the de jure structure of Herceg-Bosna which we would

 7    invite you, please, to read at some stage at your leisure, deals with the

 8    de jure position of this entity, whatever it was, which was created

 9    despite there being notice, of course, of its illegality as judged by the

10    Constitutional Court, and the suggestion of no notice is unsupported, in

11    our respectful submission, as well as wholly absurd.

12            It shows us how this particular body consolidates a mono-national

13    entity and is valuable for those purposes.  It deals with the evolutionary

14    nature of Herceg-Bosna and the developing roles of Kordic within it, and

15    it may well address some of the interests and concerns of His Honour Judge

16    Bennouna and His Honour Judge Robinson in relation to the consequences or

17    not of formal or de jure authority and the duties owed in particular

18    posts.

19            Can I, with that much introduction, following another break, just

20    deal with a few more exhibits addressing the same interests and concerns

21    that the Bench has expressed this morning, and I can deal with them very

22    shortly.

23            1209.1 is a document of the 20th of September, 1993, and it's

24    signed by Kordic and Kostroman and, lest there be any doubt about it, this

25    is how, at that time, they were prepared to end letters.  "You may be sure

Page 28318

 1    that the Croatian people of the Lasva Valley are determined to remain on

 2    their hearts and to destroy the balijas."

 3            So far as it's suggested this was a moderate and temperate leader,

 4    that letter may show somewhat more of the truth.  Can we just remind the

 5    Chamber through 1257 -- no, before I do that, let me say this:  I don't

 6    have time to deal, in any detail, with Stupni Do and Vares.  It is fully

 7    argued in the brief and, as with all of the other allegations, the

 8    evidence can be found in the various tools that we have provided to you.

 9            JUDGE MAY:  Mr. Nice, I'm sorry to interrupt you, particularly

10    given the time is short, but it's important.

11            Now, in this connection, the evidence against which you rely on,

12    presumably, in relation to Mr. Kordic is that there is some evidence about

13    him being involved in the takeover of Vares, but that doesn't really

14    assist, I suggest.

15            The evidence involves Rajic being sent there.  Presumably your

16    case is that Rajic carried out this operation with his troops in Stupni

17    Do.  Afterwards, there is evidence of Mr. Kordic having the matter

18    reported to him and saying that inquiries or something of the sort will be

19    undertaken.

20            Now, that is my recollection.

21            MR. NICE:  Well, Your Honour has, indeed, a full and detailed

22    recollection.  I was going to put the reporting document on the ELMO.  I

23    just will.  While I'm speaking --

24            JUDGE MAY:  While that's being done, the question is the link

25    between Mr. Kordic and this offence.

Page 28319

 1            MR. NICE:  Yes.

 2            JUDGE MAY:  It would be helpful if you would just put your case

 3    briefly on that.

 4            MR. NICE:  Certainly, and I was going to.  The only aspect of the

 5    evidence that Your Honour has not summarised, although I've tried to draw

 6    our attention to it this morning whenever passing through documents, is

 7    the regular occasions upon which he is informed about and interested in

 8    Vares.

 9            Indeed, one can go back to the meeting with Tudjman in 1991 when

10    he speaks of, and it's at page 42 of the transcript of the meeting which

11    was probably tape-recorded, it was tape-recorded Exhibit 2717, Kordic

12    says, "I have the duty and honour to speak on behalf of the people from

13    what some referred to as the so-called disputed area stretching from

14    Dobratici and Jajce to Kraljevica, Suceska, and Vares."  Page 43 of that

15    document.

16            And the intervening references to Vares and the document, I don't

17    invite you to turn to it again, but the schedule that I've already --

18    annex 11 that I've just taken you to, is one way of finding references to

19    Vares easily searched, and you will find that there is a recurring

20    interest of him in this area.

21            The rest of the evidence, in particular when you take into account

22    the moving of Croats in, for example, Zenica and Kakanj, and have in mind

23    the policy of reverse ethnic cleansing which is asserted, was probably the

24    reason behind the Stupni Do massacre.  Force the remaining Croats out is

25    something that had featured in other parts of the same territory of this

Page 28320

 1    defendant.

 2            So that what you have is the actor, Rajic, going out in

 3    circumstances where the Chamber can conclude from all the evidence it's

 4    heard that it would be on instructions, and it can look to all the

 5    evidence it's heard to be sure where the power of instruction lay.  He

 6    goes out to achieve something which fits with the general pattern of

 7    ensuring that Croats move out where, by the policy of reverse ethnic

 8    cleansing, they should move out, indeed they move out through Serb

 9    territory but, as we know, there's been cooperation with Serbs for a long

10    time, right back to Graz.  But we don't have time to go into all that.

11            And then indeed, as Your Honour says, Exhibit 1257.3, now on the

12    ELMO - first page, please - and the title.  This report doesn't just go to

13    Kordic.  It goes to Kordic as the first addressee amongst Kordic,

14    Petkovic, Blaskic, and one other.  And we see not only does he report

15    what's happened, but if we -- the city of Vares has been cleansed.  And

16    over the page, if we turn to the end of the letter, again reflecting back

17    to the fact that this is a political objective that's in mind, we see:

18    "Vares is Croat of today.  We will fight to have it remain that way.  You

19    must help me."

20            So that we -- our case on Stupni Do is fully argued further in our

21    brief.  The precise reasoning for the attack - and I know that the Defence

22    rely on all sorts of other possible reasons, and others were given, I

23    think, as potentials by witnesses in our case - may not matter.  What does

24    matter is that the structure in which this attack was carried out matches

25    in all ways the structure of attack elsewhere, or attacks elsewhere.  And

Page 28321

 1    of course, although Kordic is heard afterwards saying some words

 2    about - as a soldier, indeed, I think he says them - of regret, was there

 3    any discipline?  No, there wasn't.  Did he assume that he had the powers

 4    to discipline?  Apparently, yes, he did.  All of that goes a long way to

 5    showing, as we would say, complete liability for this offence under one or

 6    other of the categories.

 7            Your Honour had asked me to deal earlier with Kordic and Busovaca

 8    and its significance.  Can I summarily deal with that now?  One of the

 9    reasons for showing you the various orders that we have today -- and I can

10    just perhaps put one more up now, one with which you're familiar, 1342.4,

11    which is the order of the 11th of January - I beg your pardon - 26th of

12    December, 1993, appointing him to the Main Staff.  And the Court will

13    recall, I dare say quite readily, all the various witnesses who were

14    simply unable or perhaps declined to give any sensible explanation to

15    this.  The orders I've shown earlier today, which were specific as to

16    their military objectives, and this order appointing him to the Main

17    Staff, of course reveal Kordic as a man having military authority over an

18    area much wider than just his own locality.  He was a senior politician,

19    and although he may have been based in Tisovac, he had wide

20    responsibility.  And another way of describing it:  He was always in a

21    position to enter into the military command and take over control of it,

22    it would appear, when he wanted to.

23            So we say, as to the significance of the evidence - and I think

24    you've seen links to Vares, Zepce, and Kiseljak today, but there are

25    plenty - plenty - of other documents, as you will appreciate - we say the

Page 28322













13   Blank page inserted to ensure pagination corresponds between the English

14   and French transcripts.












Page 28323

 1    significance of the particular evidence that we happen to have found

 2    restricted to Busovaca is that it exemplifies the power that he had.  The

 3    fact that he lives in Busovaca --

 4            JUDGE MAY:  But at that time -- in fact, it wasn't the

 5    significance of the evidence, which, of course, I appreciate.  The issue

 6    is:  Starting there, how, then, do you say that there is a link, as far as

 7    he's concerned, with what happened thereafter, particularly Vitez in

 8    April?  If you stop at Busovaca and you refer to the evidence about his

 9    involvement with the artillery there, that is Busovaca in January.  Your

10    case, of course, then advances through the Lasva Valley in April and into

11    the autumn.

12            MR. NICE:  Yes.  And not forgetting Stari Vitez in the middle of

13    the summer and so on, but we haven't got time to go into all that.  And it

14    starts, of course, in the spring of 1992 in Novi Travnik and at the

15    Bratstvo factory and at the second Novi Travnik attack, when he's in

16    charge, and so on.  Now, what we say is that this is an even history, an

17    even pattern, but that what you're seeing is, by chance, an exemplar of

18    his power rather than anything that is unusual.

19            There is no suggestion by any party, save for these last and, if I

20    may say so, wholly unrealistic urgings that he was giving military orders

21    and people were laughing at them, as to which there is nil evidence.  So

22    that what you see is part of an even development.

23            Incidentally, of course, the diary entries we showed you today,

24    which is one of the reasons I had to spend so much time going through them

25    in detail, show him plainly involved in Vitez and Kiseljak.  He's not

Page 28324

 1    restricted there in any way.  So that the significance of it is the normal

 2    significance of evidence of this kind.

 3            What does this man do?  We know that he has this job, he has this

 4    apparent authority.  We don't actually have a picture of him working on

 5    Monday, Tuesday, Wednesday, Thursday, and Friday, but we do have a picture

 6    of what he's doing on Wednesday.  There is no reason to believe -- on the

 7    contrary, you may be satisfied, on the other hand, that he does exactly

 8    the same thing on all the other days of the week.  And here, when you've

 9    got the start points - that is to say, you've got the Novi Travnik

10    events - and when you have the end -- at least one of the end points;

11    we'll look at another end point later -- but when you have the end point

12    in his promotion to high military office, the Court can be quite satisfied

13    that he had that potential throughout the time that he was exercising the

14    authority that in all sorts of other ways is manifestly and was manifestly

15    his.  He was the man, after all, who consolidated all these municipalities

16    in August of 1991 and maintained their consolidation as his fiefdom

17    thereafter.

18            So that that's the way we put the case.  It has to be done very

19    shortly in the time available, but that's it.

20            And one other document before we go into private session, if we

21    may, for a minute or so, which is 11th of January, 1994, and perhaps

22    addresses Your Honour's point immediately.  Page 2, 1356.4, 11th of

23    January, 1994, Vitez Brigade, and then it's over the page, I think.  I was

24    going to -- I'm grateful to Mr. Scott.  On Colonel Kordic's order, two

25    fire extinguishers were fired deep into Kruscica.  These are the things

Page 28325

 1    that we sometimes hear described as "babies," homemade bombs.  That maybe,

 2    in a simple way, meets Your Honour's point directly.  This is a continuum

 3    of activity by him, and that's what we say.  Indeed, there are citings of

 4    him on the front line, if Your Honour remembers, in both August and

 5    December, with, on one occasion, I think, Cerkez himself.

 6            Your Honour, can we go, very briefly, into private session?

 7                          [Private session]

 8    [redacted]

 9    [redacted]

10    [redacted]

11    [redacted]

12    [redacted]

13    [redacted]

14    [redacted]

15    [redacted]

16    [redacted]

17    [redacted]

18    [redacted]

19    [redacted]

20    [redacted]

21    [redacted]

22    [redacted]

23    [redacted]

24    [redacted]

25    [redacted]

Page 28326













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Page 28327













13    Page 28327 redacted – in private session.













Page 28328

 1    [redacted]

 2    [redacted]

 3    [redacted]

 4    [redacted]

 5    [redacted]

 6    [redacted]

 7    [redacted]

 8    [redacted]

 9    [redacted]

10    [redacted]

11    [redacted]

12    [redacted]

13    [redacted]

14    [redacted]

15    [redacted]

16    [redacted]

17    [redacted]

18                          [Open session]

19            JUDGE MAY:  Can you make sure I get a copy of annex 1, please.

20            MR. NICE:  I'm very sorry it didn't find itself.  Here it comes.

21    Your Honour, if we're back in open session, a few points, some of them

22    heard already.

23            In relation to Kordic, we've heard of some of them but I'll just

24    remind you of the others.  Yes, in relation to Kordic and Blaskic.  He

25    called himself Blaskic's superior at the Mixed Military Working Group.  He

Page 28329

 1    told Blaskic to let the mortars roll.  On Exhibit 769, a document he sent

 2    to Blaskic, he said, "Of me they said I'd be okay without Kordic giving

 3    the orders," but he sent that to Blaskic.

 4            Witness AS said, "Kordic came in to the hotel storming, yelling at

 5    Blaskic, 'How dare you let the balijas go through to Vitez.'"  Transcript

 6    16342.  The Blaskic order, we've already looked at of March 1993, on the

 7    basis of an oral order by Colonel Dario Kordic.  And then there's also

 8    another document 780.2 where Blaskic turns to Kordic to seek his view and

 9    his position on a request by Cerkez that detained Muslims might be

10    released.

11            In an ECMM report of the 19th of June, 1993, 1079.1, this was

12    said, in the middle of the page, "It seems machiavellic but it is only

13    Balkan, and everyone who has regularly met the top Bosnian Croat leaders

14    Boban, Stojic, Kordic, and Valenta in various situations and on various

15    subjects where their paranoia and their extremism were not hidden can

16    easily believe it."

17            I repeat, this is the case of a military enterprise solving a

18    political objective in an area where Kordic had command or control of what

19    was happening on the ground and where he had the connections elsewhere

20    that were necessary to the enterprise.

21            The last document gives it all away, 1477, argued as, in some way,

22    insincere or -- I don't know how it was argued.  The Chamber asked several

23    questions of the witness who dealt with this citation of an award to be

24    given to this man, "As chief of the Busovaca Defence Office at the very

25    start of the aggression against the Republic of Croatia, he organised and

Page 28330

 1    started all activities aimed at blocking the Serbo-Chetnik military in

 2    Central Bosnia.  For his outstanding contribution to the formation of the

 3    Croatian Defence Council units and the creation of war strategy, and for

 4    his great success in leading and commanding the Croatian Defence units

 5    during the Muslim aggression against the Lasva Valley and the wider region

 6    during the bloodiest moments of the ordeal of the Croats in Central

 7    Bosnia, he played a key role in all the battles and was a source of hope

 8    and faith in their survival in the areas of Bosnia and Herzegovina

 9    inhabited by Croats for centuries."

10            Your Honour, I will, of course, have some words to add, probably

11    have some words to add in my 20 minutes tomorrow.  I have one more minute

12    and one more thing to say and it's this:  As it happens, I came here to

13    prosecute this case.  There are many people beyond those I've already paid

14    tribute to today who it would be appropriate, if I had the time, to record

15    as having helped us in this enterprise over the last year and a half, not

16    the least your Court staff, the admirable usher who could hardly have been

17    better and more ahead of the problems that he faces, the registry staff,

18    and the Chamber's staff.

19            I also have the pleasure of having led a large and international

20    team, not all devoted to this case at all times.  And one of the great

21    ironies of coming to a place like this and, of course, those of us who are

22    able to see the benefits of multi-national activity can only reflect how

23    much happier it would have been if the wisdom that that can give you had

24    been appreciated by those who chose instead to pursue single ethnic lines

25    with such appalling consequences as were suffered in 1992, 1993, and

Page 28331

 1    thereabouts.  Thank you.

 2                          [Trial Chamber confers]

 3            JUDGE MAY:  Yes, we might as well make a start, Mr. Sayers, if you

 4    could find a convenient moment, about an hour, or just under's time.

 5            MR. SAYERS:  Thank you very much, Mr. President.

 6            As the sentiments of counsel for the Prosecution regarding the

 7    excellent quality of the registrar, the legal officers, and the usher;

 8    thank you all for your patience in listening to this mammoth case.

 9            In closing argument on behalf of Mr. Kordic, we just have these

10    initial points to make:  People have a right to defend themselves.

11    Especially when they are in a significant minority as were the Croats in

12    Bosnia-Herzegovina; 17.3 per cent of the total population in 1991.  It's

13    not a crime to urge people to remain in their homes, their towns,

14    villages, places where they were born and to defend those towns and

15    villages.

16            As we've said in the first page of our brief, war itself is not a

17    crime but crimes committed in war are crimes and there's no excuse for

18    them, that they would be crimes even without a war.  To conclude the

19    initial points, Mr. President, on page 4 of our brief we observe that this

20    case does raise some very serious and some very fundamental issues and the

21    Bench has touched upon those in its questions today.

22            This case does involve a leading regional politician, there's no

23    question about that.  What legal burden of criminal responsibility should

24    be attached to political leaders who have the courage to step forward in a

25    time of political, social, military, and economic tumult to provide

Page 28332

 1    much-needed leadership to their beleaguered communities?  That's really,

 2    in a sense, one of the extremely difficult issues to which the Court has

 3    to grapple with here, the larger issues rather than the detailed issues

 4    that have been by the Prosecution of Mr. Kordic's assorted military

 5    matters, and I will address that in just a second.

 6            But let me just say with the briefs, over 2.000 years ago, the

 7    commentator Horace wrote, "brevis esse laboro obscurus fio," "I strive to

 8    be brief and I become obscure."  There's nothing obscure or brief, I'm

 9    afraid to say, in our brief.  We've tried as much as we could in the time

10    available to make it as accurate, objective, and comprehensive as we can.

11    The table of contents sets forth its organisation and I'm not going to

12    belabour those, but here's the basic structure of it:

13            The first question addresses itself as follows --

14            THE INTERPRETER:  Could the counsel please slow down because of

15    the interpreting.  It's very hard to follow.

16            MR. SAYERS:  My apologies to the interpreters.

17            The first part deals with what Mr. Kordic was not.  He was not a

18    military commander.  The second deals with what he was; he was a political

19    leader and he was a spokesman.  And he's here today, and he's been here

20    actually in the detention facility for the last three years, ready to face

21    up to responsibility for what he was and what he did.  And if any

22    punishment is to be assessed against him, it should be, Your Honours,

23    precisely for that, what he was, and what he did.  But he should not be

24    punished for what he was not and what he did not do.

25            With all due respect to the Prosecution, that is precisely what

Page 28333

 1    they are arguing today.  They are arguing that he was a military figure,

 2    that he was involved in Ahmici and, I might say, based upon a document

 3    which I'll review in due course but which was never put, never put by the

 4    Prosecution to any witness despite having the opportunity to do so.  And

 5    the Trial Chamber may well ask itself:  Well, why not?

 6            The Trial Chamber may also recall that there were three witnesses

 7    who did address parts of that document Z610.1.  The first one was

 8    Mr. Prelec.  We showed him the entry for January 29th.  Someone had

 9    written right over the top of it, "War diary April 15th, 1993."  He

10    couldn't explain that.

11            The second witness, the Court knows, was a witness who testified

12    two weeks ago as the star witness, really, for the Prosecution, turning up

13    right at the tail end of this entire case.  What did he have to say about

14    the Exhibit Z610.1, and specifically the large entries for April 16th?

15    Well, he said they were fake.  And you will recall, or perhaps just last

16    week --

17            JUDGE MAY:  Be careful.  Not "They are a fake."  What he said was

18    that the first entry --

19            MR. SAYERS:  Yes, indeed, Mr. President.  The first entry he was

20    shown on April 16th was a fabrication and a fake.  You are absolutely

21    right.  I mean he wasn't shown the other 28 pages that deal with that one

22    day.

23            But he -- the one part that he was shown, Mr. President, he said

24    it's a fabrication and a fake.  And what we are hearing today, unless I

25    missed my mark, about 50 per cent of the Prosecution's closing argument

Page 28334

 1    was devoted to that document and inferences that you are asked to draw

 2    from it with one --

 3            THE INTERPRETER:  Will Mr. Sayers please be mindful of the

 4    interpreters.

 5            MR. SAYERS:  Don't rely upon the document when it comes to Ahmici

 6    because it doesn't contain any mention of Ahmici, says the Prosecution,

 7    but as to the rest of the document, you can rely upon it.

 8            In all candor, Mr. President, that's a very odd position to take,

 9    especially when you take a look at the very first page of this document.

10    Someone has actually written on the top of it, in handwriting - we don't

11    know who - but the document actually says, "War diary, April 16" to

12    something, right on the first page of the document, and you can see it in

13    handwriting on the Croatian version.  No one explained that.

14            The very first page, handwritten from 16 April 1993 to -- to

15    what?  Well, who wrote it?  We don't know.  When did they write it?  We

16    don't know.  And why did they write it?  We don't know.  And that's a real

17    problem, because this is a document in which the Prosecution seeks to

18    place very considerable reliance yet they have produced zero evidence

19    about the legitimacy, authenticity, or accuracy of this document.

20            But, I'll address that in due course.  May I suggest,

21    Mr. President, that this case comes down to four issues, really.  The

22    first is the general claim of persecution alleged very generally in count

23    1, and that's a charge that has to be analysed carefully.  It has to be

24    dealt with, but bear in mind, Mr. President, the arguments that were urged

25    when the motion for judgement of acquittal was heard in March of this

Page 28335

 1    year.

 2            This is a charge that Mr. Kordic is somehow accountable for

 3    persecution said to have been perpetrated throughout the 30 municipalities

 4    of the Croat Community of Herceg-Bosna, the HZ HB, and in the city of

 5    Zenica.  That's what's charged.  And as we've previously pointed out, no

 6    evidence about 22 municipalities at all, and I won't, at this point, go

 7    through the other municipalities which are charged, but, for example, just

 8    let's take two of the municipalities or cities that are contained in the

 9    count 1 of the amended indictment.

10            First, Bugojno.  Where is the evidence that Croats persecuted

11    Muslims in Bugojno?  It just doesn't exist.  You've heard two witnesses

12    from Bugojno, Ivo Mrso and Lieutenant-Colonel Rudy Gerritsen, and their

13    testimony establishes beyond apparent venture of a doubt who was

14    persecuting whom.  And you know who it was; it was the Muslims that were

15    persecuting the Croats.

16            And in fact, 15.000 of the 16.000 people of Croat background who

17    lived there were forced out of their homes, evicted by military force.

18    And then, even after that occurs, there are only a few people left in the

19    municipality; you have that terrible massacre on September 25th of 1993 in

20    Uzdol.  Who was persecuting whom there?  Not a tu quoque argument, as the

21    Prosecution argues, but more importantly, related to the claims made in

22    the amended indictment.  Who was doing what to whom?

23            Well, we know who was doing what to whom there.

24            The next municipality is the city of Zenica, Your Honours.  Just

25    contemplate that for a second in passing.  Is there any serious question

Page 28336

 1    that the Croats are asserted to have persecuted Muslims in Zenica?  That's

 2    absolutely factually baseless.  First of all, there was a large eviction

 3    of the Serb population in the city of Zenica.  We know when that happened;

 4    towards the end of 1992, October, November, about 20.000 people of Serb

 5    ethnicity evicted from the city of Zenica.  But we also know what happened

 6    in April, and you've got it from one of the transcript witnesses, TW-2, in

 7    our case.

 8            THE INTERPRETER:  Please, Mr. Sayers, could you slow down?

 9            MR. SAYERS:  The cleric, and there is no dispute in the evidence

10    about this, 17.000 people of Croat ethnicity evicted from their homes in

11    Zenica and the surrounding villages.

12            JUDGE ROBINSON:  Mr. Sayers, what are you looking for in

13    persecution?  Are you using persecution in a colloquial sense or are you

14    using it as a term of art, which indeed it is in this case?

15            MR. SAYERS:  Well, that's an extremely good question and my

16    colleague Mr. Smith is going to address the persecution count in detail,

17    but if I could just answer your question directly, I think when you

18    analyse the claim of persecution that's made in count 1, it's a general

19    claim.  The Court's already addressed what that means in the context of

20    Mr. Kordic, anyway, and that's, after all, who we represent.

21            The case that we were told to answer, and I hope the case that we

22    did answer, was Mr. Kordic's asserted role in the highest levels of

23    government; and that means, presumably, a general policy of persecution

24    that is formulated at the highest levels by president Boban, by his

25    ministers, directly or indirectly, and filtered through to the various

Page 28337

 1    municipalities throughout the HZ HB.  That's the claim, as I understand

 2    it, that is made in count 1.

 3            Certainly the Trial Chamber gave the Prosecution the opportunity

 4    to slim it down last March.  That was not taken.  We still have the

 5    general claim of persecution throughout the community and in Zenica.  It's

 6    not, Your Honour, a claim that persecution existed in one or two isolated

 7    municipalities within the HZ HB, and certainly the Prosecution knew how to

 8    make those charges because those are the charges that were made in

 9    Blaskic.  Very, very specific municipalities in the indictment there.

10            This is not the same kind of indictment.  There is no allegation

11    that Mr. Kordic is somehow responsible for persecution in Busovaca and

12    Vitez and Novi Travnik, to use the most pertinent examples, but he's not

13    really responsible for what happened down in Gornji Vakuf or Siroki

14    Brijeg, just to pull two municipalities at random.  That's the point I'm

15    making, Your Honour, and I hope I'm answering your question.

16            There is no charge here of specific persecution in specific

17    municipalities.  There is a general charge of persecution essentially

18    everywhere in the HZ HB and, subsequently, in the HR HB and, confusingly,

19    in Zenica.

20            JUDGE MAY:  Well, supposing that we do not find on the evidence

21    before us that there was persecution in Zenica or, indeed, any other

22    municipality.  Supposing that were the finding at the end, and that's

23    presumably what you would urge upon us, there still remains the eight

24    other municipalities on which it must be said there's a deal of evidence.

25    Now, you're going to controvert it, of course, but supposing we say that

Page 28338

 1    we're satisfied on the evidence that there was persecution in those eight

 2    municipalities.  Do you say that that means that no conviction on count 1

 3    would be possible because of the way it's been drafted?

 4            MR. SAYERS:  Obviously, Mr. President, that's a question for the

 5    Trial Chamber, but it seems to me that that is certainly a conclusion that

 6    we would urge upon the Trial Chamber.  Mr. Kordic has not been charged

 7    with any complicity or perpetration of persecution in specific

 8    municipalities.  He's been charged, as the Trial Chamber perhaps quite

 9    properly observed in its ruling on April 6th, with participation at the

10    highest levels of government and accountability for a general policy of

11    persecution that was deployed in the HZ HB, in every municipality, and in

12    the city of Zenica.  That's what's charged.

13            And I fully take Your Honour's point.  A good deal of evidence has

14    been adduced regarding oppression and persecution of Muslims, and the

15    other way around, in various municipalities.  But unfortunately, that's

16    not what has been charged in specific municipalities, as was the case, for

17    example, in Blaskic.  And this is not a muddle of Mr. Kordic's making.  He

18    takes the indictment and the amended indictment, obviously, as he finds

19    it.  But it was confirmed five years ago, and we had this debate,

20    Mr. President, earlier in the year, about nine months ago, by my account.

21    Nothing has been done to slim it down, and the charges are what they are

22    and we've addressed them.  But with respect to the individual claims of

23    persecution, if I may, Mr. President, I'd just defer the discussion to

24    Mr. Smith.

25            The other three issues in this case, it really comes down to this,

Page 28339

 1    it seems to me:  The Prosecution has stretched and strained to make out a

 2    case against Mr. Kordic as to Ahmici, and the reasons are obvious.  The

 3    third issue is Stupni Do.  I do not propose to spend a lot of time on that

 4    because there's simply no evidence that connects Mr. Kordic with the

 5    events that happened in Stupni Do following the Court's decision last week

 6    to exclude the testimony of Witness AO, for reasons that do not need to be

 7    belaboured.

 8            With respect to the one document that was shown to you today by

 9    the Prosecution and put on the ELMO, the document supposedly authored by

10    Ivica Rajic, just a few points.  We've made these points before.  This

11    document is on plain paper, no letterhead, it's not signed, it's not

12    stamped.  Anyone could have written it.  And this document was shown to

13    Court Witness 1.  He was asked, "Have you ever seen it before?  Did you

14    ever get a copy?"  Answer to both questions:  "Absolutely not."  So if

15    that's what it comes down to, Mr. President, that isn't even a tissue-thin

16    argument of linkage against Mr. Kordic.  It's non-existent.  There is no

17    evidence as to Stupni Do.

18            And the fourth issue, and I would -- and we would respectfully

19    submit to the Trial Chamber that's what this case comes down to, is really

20    Busovaca.  Busovaca really in two time periods, May to January -- May 1992

21    to January of 1993, and in the second time period, really what happened in

22    January and February of 1993.  And there's a lot of evidence on that.  We

23    concentrated in our evidence, I hope appropriately, on Busovaca and

24    brought before the Trial Chamber all of the leading people in Busovaca:

25    the chief of police, the head of the HVO government, and just last week

Page 28340

 1    the military commander from February 1994 to October 1994, Brigadier Dusko

 2    Grubesic.  But that's what this case comes down to, it seems to me:

 3    persecution, Ahmici, Stupni Do, and Busovaca.

 4            In addition, this has been a very long case indeed.  There have

 5    been previous debates as to whether this was the longest war crimes trial

 6    in history or the second longest.  It doesn't really matter.  There are

 7    243 witnesses.  Tomorrow will be the 240th day.  There's, by any account,

 8    and to put it phlegmatically, I hope, there is a lot of evidence, both

 9    testimonial and documentary.  And it's very easy to go through selectively

10    and pick out a little piece here and a little piece here and then weave

11    together a theme or a story and say, "This is really the story of the

12    case."  But it would be wrong, I think, for any advocate to stand before

13    this Trial Chamber and say, "This is a pretty simple case, really not very

14    complicated."  This is a complicated case.  It's not a simple case.  There

15    is a lot of evidence.  And I completely agree with the Prosecution when

16    they said in opening statement in this case on April 12th, "This is a

17    subtle case."  Their case is a subtle, circumstantial case.  A lot of

18    evidence that goes one way goes the other.

19            Now, I'd just like to say a word on witness selection.  I'm not

20    going to say anything about the Prosecution's witness selection, because

21    we've made that point in the briefs.  But since we were asked to address

22    the case that's made against Mr. Kordic as a participant at the highest

23    levels of government, we tried to bring our participants in the highest

24    levels of government before the Court.  We tried to bring the -- well, we

25    did bring one former prime minister of the Republic of Bosnia-Herzegovina

Page 28341

 1    before the Court.  We brought another by way of affidavit.  Numerous

 2    ministers were brought before the Court: the justice minister, for

 3    example, Zoran Buntic, in the HZ HB.  We brought ministers from the

 4    HR HB.  We brought the head of the Office of the President, Mate Boban,

 5    and his name was Srecko Vucina.  He testified.  A forthright witness he

 6    impressed us as being.  I hope he impressed the Trial Chamber the same

 7    way.  He was the man who operated in the Office of the President

 8    throughout the period of the HZ HB, and I'll address that later on in my

 9    presentation.

10            But think about this, Your Honours, if I may just ask your

11    indulgence for two seconds.  Prior to this case, one of the longest cases

12    in this Tribunal, if not the longest, was the case against Colonel

13    Blaskic, the Central Bosnia Operative Zone commander.  Now, think of the

14    witnesses, the military witnesses that we brought before the Trial Chamber

15    to testify.  They had never testified before in any case, in any Lasva

16    Valley case. [redacted]

17    [redacted]

18    [redacted]

19    [redacted]

20    [redacted]

21    [redacted]

22    [redacted]

23    [redacted]

24    [redacted]

25    [redacted]

Page 28342

 1    [redacted]

 2    [redacted]

 3    [redacted]  His testimony was, if I might

 4    just borrow a figure of speech, when Samuel Johnson was asked to assess

 5    the literary impact of Thomas Sheridan on the English language, he said it

 6    was like lighting a farthing candle at Dover, trying to shed light on

 7    Calais.  And that's exactly the influence that Mr. Kordic had on the

 8    development of policy at the highest levels of government in the HZ HB and

 9    the HR HB, and we think there's no evidence to the contrary.

10            You've heard from these people.  They've all spoken with a

11    unanimous voice.  Mr. Kordic was a local regional leader.  Yes, he was the

12    vice-president of the HZ HB, or vice-president of the presidency of the

13    HZ HB.  But you've heard what that body was.  It was a legislature and it

14    had no executive powers.  And that's significant when it comes to the

15    interpretation of international law, we would respectfully submit, and the

16    war relating to -- the law relating to war crimes and the imposition of

17    liability upon civilians, such as, for example, just to take some selected

18    examples from the war crimes tribunals in Nuremberg and Tokyo:  Koki

19    Hirota, prime minister, foreign minister, exercising executive powers,

20    held liable for execution of executive powers in that capacity.  Mamoru

21    Shigemitsu foreign minister, held liable on precisely the same

22    principles.  Albert Speer, assistant minister of the --

23            THE INTERPRETER:  Could Mr. Sayers slow down, please.

24            MR. SAYERS:   [Previous translation continues] ... abuse, if you

25    like, war crimes, abuse of power in an executive capacity.  Mr. Kordic

Page 28343













13   Blank page inserted to ensure pagination corresponds between the English

14   and French transcripts.












Page 28344

 1    simply did not have executive power in the HZ HB or in the HR HB, and you

 2    know that.  You've heard the evidence, you've paid close attention to it.

 3            In terms of -- the last word, perhaps, on witness selection.  Not

 4    only did we choose the highest levels of military figures, since a claim

 5    was being made in this case that Mr. Kordic is a military man, you've

 6    heard from the brigade -- the Operative Zone level.  We brought, for

 7    example, Major General Filipovic to testify.  He never testified before.

 8    Second in command of Colonel Blaskic, ultimately replaced Colonel Blaskic

 9    as the CBOZ commander in 1994.

10            Along the same lines, we brought Brigadier Nakic before the Court,

11    Chief of Staff of the Central Bosnia Operative Zone, never testified

12    before.  Then at the brigade level, Your Honours, from the Gornji Vakuf

13    Brigade, the Dr. Ante Starcevic Brigade, Brigadier Sekerija; and an

14    affidavit from the commander, Zrinko Totic; commander of the Jure

15    Francetic Brigade, Brigadier Zivko Totic --

16            JUDGE BENNOUNA: [Interpretation] Excuse me, Mr. Sayers --

17                          [Trial Chamber confers with registrar]

18            JUDGE BENNOUNA: [Interpretation] Yes, while the -- since I have

19    the floor, I wanted to tell you that the interpreters have asked you - and

20    I was about to say this before the registrar told us - that the

21    interpreters are requesting, and we see it on the screens, and I really

22    think that you are making them suffer.  So perhaps even if it is more

23    interesting when one is spontaneous, but I believe one should remember

24    that there are people who have to transmit whatever you are saying into

25    other languages.

Page 28345

 1            And since I have taken the microphone, you said that Mr. Kordic

 2    led only, if I understood you properly, some legislative bodies, that is,

 3    bodies which merely -- which had deliberating powers and had no executive

 4    powers.  And what do you say about the executive power -- what do you say

 5    about the executive powers which were considerable and which I believe he

 6    had discharged in the municipality of Busovaca?

 7            MR. SAYERS:  The point I was making, Your Honour, was this:  When

 8    you take a look at his de jure powers as opposed to de facto powers, the

 9    position held was vice-president of the presidency of HZ HB from really

10    the date that the HZ HB was created in November 1991 until the last day,

11    August 28th, 1993.  After that, the Croat Republic of Herceg-Bosna was

12    formed and Mr. Kordic held no function in that republic at the national

13    level until February 17th of 1994, when he became one of two

14    vice-presidents of the House of Representatives, the president being Ivan

15    Bender.

16            We know that the HVO government at all times was headed by

17    Dr. Jadranko Prlic and the government was organised into various

18    departments, each headed by a department head who did exercise executive

19    powers, one example being Bruno Stojic.  He was appointed on the 3rd of

20    July, the evidence shows - there's no dispute about that - and continued

21    to exercise the function of head of the Department of Defence until the

22    Republic was founded when that position was taken over by Perica Jukic.

23    That's the point I was making.  At the national level, Mr. Kordic did not

24    exercise any executive powers.

25            Now, at the local level, what executive powers did he actually

Page 28346

 1    exercise?  He didn't exercise any, obviously, in Vitez, and I don't

 2    believe any allegation is being made that he did.  So it comes down to

 3    what executive powers -- your question comes down to what executive

 4    powers, if any, did he actually exercise in Busovaca, and our respectful

 5    suggestion is none.  The HVO president, from August of 1992 until the end

 6    of the war, was Zoran Maric, and you heard him.  Other members of the

 7    government we brought to testify here:  Niko Grubesic, Witness DE, I

 8    believe.  We had the chief of police here.  You've heard about the

 9    functioning of government at the local level in Busovaca, and there is no

10    serious contention made, I believe, that Mr. Kordic really exercised any

11    significant role in the local government of Busovaca.

12            JUDGE MAY:  The way the case is put is much broader than that.

13    It's not merely looking at whether there was a formal executive power in a

14    particular municipality.  The case that you've got to meet is that there

15    was a broad power which he, Mr. Kordic, exercised, although there was no

16    formal position, one which the Prosecution say, as I understand it, is

17    illustrated by the documents, by the various orders he gave, by the orders

18    about supplies, about military equipment, and of course, about the

19    operation in Busovaca itself, that there are a series of orders which

20    point to his having much wider powers than any particular position which

21    was formally allocated to him suggested that he had.  And even if, just

22    going on from there, while it's in my mind, even if we accept your

23    submission that there's no evidence that he exercised power at a national

24    level, there is still the case which you have to meet, as I think you'll

25    accept, that he was a regional political leader, and presumably you

Page 28347

 1    wouldn't argue that a regional political leader cannot be in a position in

 2    which he can become involved in crimes of this sort, albeit he's a

 3    civilian and not a military man.

 4            MR. SAYERS:  Of course to both points, Mr. President.  We do

 5    accept that he was a regional political leader.  You have to look at the

 6    case from two perspectives:  de jure, obviously - I've addressed that - de

 7    facto, and that's really what the Prosecution's case boils down to.  The

 8    Prosecution says, "Well, we don't exactly know what his role was, what he

 9    did, but he did a lot of things, and therefore you can conclude from all

10    of the evidence that there's something there.  It's complicated.  You go

11    and figure out the evidence."  But it is complicated.  We do accept that

12    he was a regional political leader, Mr. President.  Of course we do.  And

13    naturally, anything that a regional political leader does which is

14    criminally culpable, he should be held accountable for.  We don't shrink

15    from that proposition at all, and that's really what the case is.

16            I don't think that it's really a case about -- or at least as

17    pleaded, that Mr. Kordic was indeed one of the nationally prominent

18    people, that he did participate at the highest levels of government.  I

19    really do not think that that's what the Prosecution's case is.  Our

20    submission is that the case comes down to the power that Mr. Kordic

21    exercised in the area, what area, what power did he exercise, and where.

22            Our submission is that, frankly, if you take a look -- and I'll

23    cover this later in my presentation, but if you take a look at some of the

24    outlying areas that are included in the indictment -- just to select a

25    couple of examples:  Zepce.  What's the evidence that Mr. Kordic exercised

Page 28348

 1    significant political powers, such as to impose criminal culpability upon

 2    him for what happened in Zepce?  My submission to the Trial Chamber is

 3    that there is no evidence that Mr. Kordic is responsible for what happened

 4    in Zepce.  To use Colonel Stutt's memorable phrase, that was Ivo Lozancic

 5    territory.

 6            Secondly, Kiseljak, after it was cut off in January 1993, Your

 7    Honours, what evidence is there that Mr. Kordic is responsible for what

 8    happened in Kiseljak?

 9            JUDGE MAY:  There's some evidence he was identified by one

10    witness, as alleged, in Kiseljak, at the same time that the prisoners were

11    detained in the barracks in June 1993, so presumably the Prosecution would

12    rely on that as his involvement in what was going on.

13            MR. SAYERS:  Yes, Mr. President.  You remember the evidence, I

14    think, with exquisite precision.  It was Witness Y, and the Court no doubt

15    recalls the sum total of Witness Y's testimony in regard to Mr. Kordic; a

16    five-second sighting, supposedly, at a barracks in Kiseljak.  And the

17    Kupreskic judgement makes, I think, very appropriate observations

18    regarding the need for caution when identifications like that are based

19    only upon a fleeting glimpse, and that's exactly what we have here.

20            But just think about the proposition for a minute, Your Honours,

21    if I may.  Mr. Kordic is supposed to be liable for what happened in

22    Kiseljak because he was seen there for five seconds, we're told, by one

23    witness.  One.  Now, we heard from a witness, Brigadier Wingfield Hayes,

24    who was stationed in Kiseljak.  He was the Chief of Staff of UNPROFOR in

25    Kiseljak.  And if anybody would know who exercised power and who didn't in

Page 28349

 1    Kiseljak, he certainly would be in a position to know.  And it was put to

 2    him: "You would agree that Mr. Kordic had no influence in Kiseljak," and

 3    he did agree, and that's the case.

 4            JUDGE MAY:  Just pause.  That was put in cross-examination, was

 5    it?

 6            MR. SAYERS:  I believe it was, yes.

 7            JUDGE MAY:  No doubt you put it, so you should remember.

 8            MR. SAYERS:  Well, I do remember, and I don't have the page cite

 9    to hand, but I'm sure I can get it.

10            JUDGE MAY:  Perhaps overnight you could get that.

11            MR. SAYERS:  Yes, absolutely, but he never saw Mr. Kordic in

12    Kiseljak, and he testified that, as far as he knew, Mr. Kordic had no

13    power in Kiseljak.  The same proposition was put to other witnesses in

14    other municipalities, just to select a smattering, come off the top of my

15    head, Gornji Vakuf, Major Rule was the BritBat representative there, a

16    company commander in Gornji Vakuf.  He'd never even heard of Kordic let

17    alone agree that Kordic had any power there.  There is no contention

18    seriously that can be made that any exercise of power occurred there.

19            The same thing is true in Vares.  I believe that the last time

20    that Mr. Kordic was ever seen in Vares was September 29th, 1992, never

21    seen there at any time in 1993.

22            JUDGE MAY:  Yes, I'm sorry, there is a matter I had to attend to.

23            MR. SAYERS:  Yes, sir.

24            If I might just depart from these specific examples, I'd like to

25    embark upon an analysis of the military issues here, the superior

Page 28350

 1    responsibility --

 2            JUDGE BENNOUNA: [Interpretation] Before you move on to another

 3    subject, Mr. Sayers, you said that you will go back to the question of

 4    Busovaca.  I'm going back to the question of Busovaca.  You say that he

 5    had no power at all; however, this morning, the Prosecutor showed us a

 6    document which says clearly that Mr. Kordic had all the power, all the

 7    power, both military and civilian, and that he also had the power to

 8    engage military forces and to engage in civilian power, and that all the

 9    other competing powers were suspended.  You saw this document.  It was

10    shown us this morning.

11            MR. SAYERS:  Your Honour, I hope that it is not suggested that we,

12    collectively, our team, have suggested that Mr. Kordic had no power in

13    Busovaca.  That's not the suggestion at all.  Clearly, Mr. Kordic is from

14    Busovaca.  He had influence in Busovaca.  The question that the Court has

15    to resolve is:  What kind of influence did he have?  What kind of power

16    did he have?  How extensive was it?  How was it manifested?  There is no

17    question about that.  The only point that I was making, Your Honour, that

18    I was selecting outlying municipalities where it's clear that really,

19    there is no serious contention that can be made that Mr. Kordic had power,

20    that's why I chose Zepce, Vares, Gornji Vakuf, just as examples, and even

21    Kiseljak, after it was cut off from Busovaca in the first month of 1993.

22    There is really no serious contention made that Mr. Kordic --

23            JUDGE ROBINSON:  What, then, is your comment on the point made by

24    Judge Bennouna as to the document exhibited this morning by the

25    Prosecutor?  What do you say about the power that that was designed to

Page 28351

 1    show?

 2            MR. SAYERS:  I think that, Your Honour, that was Exhibit Z610.1,

 3    the book of observations of the duty officer, and I really don't know that

 4    I have too much more to add to what I said earlier.  That's really the

 5    sole source of the argument.  The document's been put to no one, by the

 6    Prosecution, that is.  The document itself has some very serious

 7    shortcomings which we've gone over today and we've gone over very

 8    carefully in our brief.  But where is the other documentation from

 9    Kiseljak, Your Honour, that suggests in any way that Mr. Kordic had any

10    influence in that municipality?  But, more importantly, as I said to the

11    Presiding Judge, we have presumably reliable evidence from knowledgeable,

12    highly-placed, highly-ranked military officers who were there for a very

13    considerable period of time and there is no contention made by them that

14    Mr. Kordic had any influence or wielded any power in that municipality.

15            That's why I said this case really comes down to the Novi

16    Travnik/Vitez/Busovaca pocket where there is evidence, obviously, that

17    Mr. Kordic, he lived there, he wielded power there, that was his milieu,

18    and that's really the -- this very large case all of a sudden assumes a

19    very narrow sort of local focus, if you like.  And that's the point that

20    we've been making, and it is our submission that the case against

21    Mr. Kordic is too wide.  Really the issues resolve themselves to what

22    happened in Novi Travnik, Vitez, and Busovaca, that pocket, and really not

23    even in Novi Travnik, for reasons I'll get into later.

24            I don't think there is any significant evidence of any war crimes

25    even in the month of October 1992 which is really the only month in which

Page 28352

 1    Mr. Kordic is alleged to have had a leadership role in that municipality,

 2    and the only witness who ascribes a leadership role to Mr. Kordic in that

 3    month is Lieutenant-Colonel Stewart.  But remember, Your Honours, that was

 4    his first day in Central Bosnia.  The first battalion of the Cheshire

 5    Regiment hadn't even been installed at its base in Bila.  The regiment

 6    hadn't arrived.  This was the first day that Lieutenant-Colonel Stewart

 7    was in the area, and he was looking for Colonel Blaskic, couldn't find

 8    him, and his conclusion was, from one meeting in the Cafe Grand, that it

 9    must have been Mr. Kordic who was in charge.

10    [redacted]

11    [redacted], Witness DQ, none of those witnesses ascribe to

12    Mr. Kordic any significant or any military leadership role, and we suggest

13    and submit to the Trial Chamber that he really didn't have any leadership

14    role for the reasons fully explained by the knowledgeable military

15    witnesses, Major General Filipovic for example, Brigadier Sekerija, for

16    example.

17            But to go to the senior responsibility inquiry under section 7(3),

18    the leading case on superior responsibility under that section is still, I

19    think, the Celebici decision.  And in paragraph 354 of that decision, the

20    Court took pains to emphasise an important point, and that is that great

21    care must be taken lest an injustice be committed in holding individuals

22    responsible for the acts of others in situations where the link of control

23    is absent or too remote.  And that's exactly what the Court obviously has

24    focused on in its questions to the Prosecution; linkage, the link of

25    control, the power to control the actions of others, because that is the

Page 28353

 1    basis of superior responsibility under section 7(3) of the Tribunal's

 2    Statute and it should be if you have the ability to control others, the

 3    ability to prevent criminal activity or the ability to punish it, and you

 4    don't prevent it and you don't punish it, if you have that power, and you

 5    don't exercise it, then, quite clearly, you should be held accountable for

 6    the actions of people who are under your control and who essentially go

 7    free.

 8            It is a test of effective control, and the Celebici Trial Chamber

 9    made it perfectly clear with exquisite pertinence to this case, in some

10    ways, that the doctrine extends to civilian superiors only to the extent

11    that they exercise a degree of control over subordinates similar to that

12    of military commanders.

13            Now, as I mentioned, there's a large amount of evidence in this

14    case.  It brings to mind, however, in connection with the amount of

15    evidence assembled against Mr. Kordic that he exercised military powers,

16    that the mountain heaved in childbirth then produced a tiny little mouse.

17    That's what we have.  The numbers of arguable orders that were issued by

18    Mr. Kordic are relatively few and far between, as the Court knows.

19            Consider the number of orders that the Central Bosnia Operative

20    Zone commander issued.  We've included just some of them, Your Honours, in

21    Exhibit D305/1 to Exhibit D308/1, four binders, 450 orders dealing with

22    every conceivable thing, the first ones, combat orders.  Second series,

23    disciplinary orders, examples where the Operative Zone commander punished

24    people, soldiers under his command, for doing that which they were not

25    permitted under the law to do, and a wide variety of other orders.  But

Page 28354

 1    those are only some of the orders.  Those do not include the combat orders

 2    that we discovered as a result of our own efforts, the most significant

 3    ones on April 16th.

 4            Now, five years of investigations have been conducted since the

 5    original indictment was confirmed.  Mr. Kordic has been in gaol for more

 6    than three years.  You asked us, Mr. President, to count up the number of

 7    pages and documents that we've been given in the course of this case.  In

 8    our estimate, it's approximately 200 linear feet of documents, about

 9    500.000 pages, and this being of the four kilometres of documents

10    assertedly available.  Many of which are used to prove, if they can, that

11    Mr. Kordic was really a soldier, that he wasn't a politician, and the

12    consequence of that being that he must, therefore, be held responsible for

13    everything that happened in the Lasva Valley.

14            Well, let's turn our attention to the --

15            JUDGE MAY:  Would that be a convenient moment, in fact, to break?

16            MR. SAYERS:  Yes.

17            JUDGE MAY:  You will have had something like 50 minutes.  Could

18    you try to slow down --

19            MR. SAYERS:  Yes.

20            JUDGE MAY: -- Mr. Sayers, because obviously it's very difficult.

21            MR. SAYERS:  Indeed I will, Mr. President.

22            JUDGE MAY:  The Prosecution are going to spend some time in

23    rebuttal.  You, of course, will have the chance of rejoining that.  If

24    you're going to, then it will have to come out of your time.

25            MR. SAYERS:  Of course, Mr. President.  We'd like to reserve, if

Page 28355

 1    we may, five minutes of rejoinder.

 2            JUDGE MAY:  Well, we'll break for a quarter of an hour or so and

 3    we'll then do another 50 minutes or you can find a convenient moment.

 4                          --- Recess taken at 3.40 p.m.

 5                          --- On resuming at 4.07 p.m.

 6            JUDGE MAY:  Mr. Sayers, if you'd like to continue, finish about

 7    5.00, which would give you another 50 minutes, and at a steady pace.

 8            MR. SAYERS:  Yes, sir.  You had asked for the Brigadier Wingfield

 9    Hayes transcript reference.  It's 16148.  Three questions asked of him:

10    "You never saw Mr. Kordic in Kiseljak?"  "Correct."  "As far as you're

11    aware, he never had any political influence or you never saw any

12    manifestation of that in Kiseljak?"  "I didn't see him in Kiseljak at

13    all," he said.  And he was asked, "Would he be the person that you would

14    go to to solve problems that arose in Kiseljak?" and the answer was, "No."

15            Let me go quickly through the chain of command, but not too

16    quickly, I hope.  The Court has heard evidence that there were a

17    considerable number of ceasefire negotiations and ceasefire agreements.

18    Mr. Kordic never took part in any of them.  October 1992 the only

19    participation that Mr. Kordic had there is related to a telephone

20    conversation asserted to have been conducted with Witness L, and we've not

21    seriously challenged the content of Witness L's version of that, and I'm

22    sure the Court recalls.  The ceasefire negotiations however, were

23    conducted between Colonel Blaskic and Colonel Merdan, and there's no

24    dispute about that.

25            January of 1993 in Busovaca, the negotiators were Nakic and

Page 28356

 1    Merdan, and the ultimate agreements were signed between General

 2    Hadzihasanovic and Colonel Blaskic.  Jeremy Fleming, the Court has heard

 3    from.  No participation whatsoever in the ceasefire negotiations or at any

 4    time in the joint commission set up as a result of them, the Busovaca

 5    Joint Commission.  Mr. Kordic never sat on any of the Busovaca Joint

 6    Commission meetings.  And that's significant, we submit, because that's in

 7    his own back yard.  Clearly, in the eyes of the International Community

 8    and the principal military figures on the ground, this was a man whose

 9    presence at negotiations and at the joint bodies that were set up as a

10    result of them, his presence was not necessary, not insisted upon, not

11    even recommended as being potentially helpful.

12            Chain of command.  There is no question who the Supreme Commander

13    of the HVO was at all times pertinent to this amended indictment.  Mate

14    Boban, the president first of the HZ HB, then of the HR HB.  No question

15    that there was a vertical chain of command, as you would expect.

16            Next level down, Defence Department and General Staff.  You've

17    heard from two chiefs of the General Staff.  At the Defence Department

18    level, Mr. Kordic had no role whatsoever.  That was occupied by Bruno

19    Stojic at all times.  The Court knows that.

20            Next level down, operative zones.  In the Central Bosnia Operative

21    Zone, Colonel Blaskic, supreme military commander in that region, answered

22    to his superiors in the chain of command, the General Staff and the

23    officers from whom you've heard, (redacted)

24    (redacted).

25            You've also heard internally that the chain of command worked, it

Page 28357

 1    was observed, it was honoured.  Major General Filipovic said precisely

 2    that; specified, emphasised that Kordic had no control over the exercise

 3    of military operations in the CBOZ.  He described him as a popular

 4    political figure, but he said, at 17131, "No politician influenced my

 5    option or my actions related to military matters."

 6            The same questions were asked repeatedly, Your Honours, of the

 7    principal military witnesses in this case:  Is it the case that

 8    politicians exercised their military options?  And, to a man, they said

 9    no.  Brigadier Totic, Brigadier Grubesic, Brigadier Sekerija, and all of

10    the other military officers.  And the same story, I might say, was told by

11    the Viteska Brigade officers at the staff level - Major Sajevic, Major

12    Ceko, even down to the foot soldier level - where questions were asked, it

13    might be thought gratuitously, of these witnesses when no

14    cross-examination was conducted by Mr. Kordic:  Did he have any military

15    powers?  And to a man, they said, "No.  As far as I knew, he was just a

16    politician."

17            However, the primary witnesses in whom we would invite the Court

18    to repose its principal trust are the people who would know, the people

19    who were the military commanders of the armed forces, [redacted]

20                      [redacted]  And we would

21    respectfully suggest, and the Court can scour their own testimony, but

22    their testimony is materially identical on all points, and they exclude

23    Mr. Kordic from the chain of command.

24            Just to give you an example of the foot soldier who was asked a

25    question about Mr. Kordic, Slavko Kristo, at page 25314, he said

Page 28358

 1    Mr. Kordic was a politician popular among the people, but he'd never

 2    actually had the opportunity to have the honour of sitting down with him.

 3            Now, did this chain of command work in the hierarchical fashion

 4    that one would normally expect?  Yes.  And there are three exhibits.

 5    We've used them with other witnesses, and with the usher's assistance, I'd

 6    like to show them to you very briefly.  They illustrate how the chain of

 7    command worked.

 8            April 18th, these are the orders that concluded the fighting that

 9    started on the 16th.  The first order comes down from Mate Boban, supreme

10    commander, also signed by Alija Izetbegovic.  Second order, Brigadier

11    Petkovic sends to his Operative Zones implementing orders on the same day

12    D84/1.  And in the Operative Zone, the next order is Colonel Blaskic's

13    implementing order, doing exactly what he had been ordered to do by

14    General Petkovic.  Exhibit Z715, thank you.

15            So there you have it; hierarchical chain of command operates as

16    one would normally expect one to operate.  Those exhibits were put to

17    Brigadier Wingfield Hayes, and he agreed that that's exactly how the chain

18    of command works and is supposed to work and did work.

19            Colonel Blaskic was the Operative Zone commander.  I've already

20    made the point regarding the exhibits we've introduced; hundreds and

21    hundreds and hundreds of orders.  But those orders included combat orders

22    but not the principal orders on the 16th which we introduced as Exhibit

23    D343/1 tab 6 and 7, combat orders issued by Colonel Blaskic to the 4th

24    Battalion of Military Police and the Vitezovi on the 16th of April.

25            The next exhibits I would like to draw to your attention are a

Page 28359

 1    pair, and they are significant.  The first is Exhibit D 343/1.  If I may

 2    ask the usher to put this on the ELMO just to remind Your Honours.

 3    October 20th, 1992.  As a preface, you've heard a lot about the next

 4    exhibit, Exhibit Z243.  The Prosecution placed consistent emphasis upon

 5    this and even read it out in closing argument.

 6            But consider the first one, Your Honours.  October 20th, look who

 7    it goes to.  This is a report from Colonel Blaskic and it goes to his

 8    supreme commander, Boban; it goes to the head of the defence department,

 9    Stojic; it goes to the chief of the Main Staff, Petkovic; and then the --

10    and it goes to the municipal staffs.

11            The next one only goes to the municipal staffs, and you've heard

12    the explanation from that, of that from Court Witness 1 who said that

13    there were rumours about people being shot at, people being abducted.  We

14    heard from Dr. Genjac that in the Novi Travnik fighting, at exactly this

15    time, Ivica Stojak got killed, he being the actual military commander in

16    the --

17            JUDGE MAY:  If that were right, why not simply say:  There have

18    been rumours that people had been abducted; in fact, they're not true.

19    Mr. Kordic, the politician, and Colonel Blaskic, the military man, are

20    alive and well.  Instead of which we find that they are, according to

21    this, leading the defence.  The Prosecution say from that there's only one

22    inference to draw, that is, that they were both involved in the military

23    defence of that particular area.

24            MR. SAYERS:  And I take Your Honour's point, but that's not the

25    only inference that can be drawn.  Because if you take a look at the

Page 28360

 1    preceding report, this is a regular military report issued by the military

 2    commander to his superiors in the chain of command, and he didn't say that

 3    Mr. Kordic and I are continuously leading the operations to his military

 4    commanders because he knew that that was not the case.

 5            This was a public relations document designed to quell rumours,

 6    that's exactly what Court Witness 1 said, and it's consistent.  It was

 7    issued to the municipal HVO staffs, it wasn't issued up the chain of

 8    command.  In fact, Court Witness 1 described this as not really a military

 9    document.

10            I won't go through the history behind the title Colonel Kordic.

11    The Court already knows that.

12            The next exhibit I was going to put on the ELMO is D343/1, tab 2,

13    but the Court knows the history behind the acquisition of that title.

14    Stojic sends a letter on the 26th of November, 1992 to Kordic saying:  Go

15    down to the negotiations in Sarajevo in place of Colonel Blaskic,

16    introduce yourself as Colonel Kordic.  And that's exactly what he did.

17            JUDGE MAY:  Supposing we accept that and that the title was merely

18    awarded for the purposes of negotiations and for no other reason, that it

19    did not reflect a military reality.  Now, supposing we accept that, that

20    being the state of affairs in December of 1992.  What inference should we

21    draw from the fact that that title was then used continuously by your

22    client throughout the war and, in fact, ends up, as the Prosecution have

23    pointed out, with his appointment to a wider political -- wider military

24    role at the beginning of 1994?

25            Now, I know you dispute that final point, but why, then -- what

Page 28361

 1    inference is there to draw from his adoption of the rank of Colonel unless

 2    it be that he had some military role?

 3            MR. SAYERS:  Very good point, Mr. President.  We would suggest a

 4    number of responses to that; three, really.  The first:  When the title

 5    was conferred upon him, he went to the tripartite negotiations in

 6    Sarajevo, met with Lieutenant-Colonel Cordy-Simpson.  Now, this was a

 7    cordial, candid, credible witness.  There is no question about that.

 8            He was second in command of UNPROFOR in all of Bosnia-Herzegovina;

 9    professional soldier.  He was asked to acknowledge that Mr. Kordic was no

10    soldier, and that's exactly what he acknowledged, that he was no soldier.

11            That's the start of the inquiry.  The question was:  Does he

12    evolve into a soldier - I think that's the Court's question - over the

13    course of the next few months?  And we would respectfully submit that he

14    did not.

15            First, it's true that he supported the title of Colonel.  There's

16    an old aphorism, I guess, "Vanity of vanities, all is vanities."  And

17    that's all, I guess, what it was.  It appealed to his vanity, I guess.

18    Although there's no question, and that the most recent documents indicate

19    that he was taking some role in artillery matters in his home town in

20    January and February, and the documents are fairly conclusive on that

21    point in terms of involvement in artillery matters in his home town in a

22    very limited point in time.  We agree with that.

23            But in terms of the latter document, Your Honour, that illustrates

24    the problem of documents generally in this case.  Once again, it's on a

25    blank sheet of paper, not signed.  It's not on letterhead.  Where did it

Page 28362

 1    come from?  Who prepared it?  We have no idea.  And it's not consistent

 2    with the other facts in this case.  And also, the third point I wanted to

 3    make is:  Who did what after the war?

 4            After the Washington Agreement had been signed, you have General

 5    Blaskic now newly promoted, replaces his predecessor as head of the

 6    general staff of the HVO in Mostar, continuing on in his military career.

 7    What did Mr. Kordic do?  Well, he continues on in his political career

 8    and, in fact, was elected president of the HDZ-BiH in July of 1994, having

 9    been, before that time, only a vice-president, one of five.

10            There are other -- we've covered in our brief all of the

11    individual documents upon which the Prosecution -- or to which the

12    Prosecution has adverted.  I'm not going to repeat that.  It's a

13    time-wasting experience.  But let me just hit a few other points before I

14    pass from the chain of command in the five minutes that I am going to

15    spend on this, then I'll turn the floor over to Mr. Smith who will address

16    the persecution issues.

17            You will recall, no doubt, that there was a theory of political

18    commissars or zampolits at some point that was being promoted by the

19    Prosecution.  That appears to have been completely abandoned.  It has to

20    be abandoned in light of the uniform testimony from the military

21    witnesses, Major General Filipovic, Court Witness 1, and also the

22    documents themselves, the decree on the armed forces which specifically

23    bans political activity inside the armed forces.  That's a theory that

24    floated around for a while, but it's been sunk.

25            The next theory, two chains of command.  Another variation is the

Page 28363

 1    brief that we see from the Prosecution.  They say, well, we're really not

 2    arguing that there are two chains of command, but that's exactly what they

 3    are arguing in the opening statement.  Now it's, well, it's really two

 4    sides of the same coin.  But really it comes down to the same thing, Your

 5    Honours.  The argument is two chains of command, and the reason is this:

 6    For superior responsibility to apply, if it does, the question has to be

 7    asked of -- with respect to the superior:  Who are the troops under his

 8    command?

 9            Now, as to the Central Bosnia Operative Zone commander, we know

10    the answer to that.  He controlled all of the troops under his command in

11    the zone, the 12 brigades, admittedly they were cut down as the HVO

12    suffered a uniform series of military defeats following the June offensive

13    as brigades were expunged from existence like the Kakanj Brigade, the

14    Kotromanic Brigade, the Frankopan and the Travnicka Brigades, but those

15    were clearly under Colonel Blaskic's command and he commanded them.  The

16    military police, same thing, and I'll address that in just a minute.

17            JUDGE BENNOUNA: [Interpretation] Excuse me, Mr. Sayers, for

18    interrupting you.  You propound the idea that the command responsibility

19    concerns only the military.  You say which troops, but in the beginning

20    you admitted that, of course, changing what needs for changed the command

21    responsibility may also concern and affect the civilians [as

22    interpreted].  And we here have a civilian politician, a regional leader,

23    as you have admitted, who could exercise, wield a certain power, certain

24    control over those who made part of the military chain of command, and

25    that is the rump.

Page 28364













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Page 28365

 1            MR. SAYERS:  The narrow issue that I am advancing to the Trial

 2    Chamber, Your Honour, is this:  For superior responsibility to apply, even

 3    in the traditional area of military -- purely military superior

 4    responsibility, the inquiry has to be conducted, all right, what troops

 5    are under the command of the alleged superior?  And the Celebici decision

 6    also says that, under certain circumstances, it's true that civilians can

 7    be analysed under a superior responsibility theory but the same principles

 8    apply.  You still have to make a determination of who they are superior

 9    to.  To whom do the troops under their command report, and what are the

10    troops under their command?

11            Our respectful submission to the Trial Chamber is there weren't

12    any troops under Mr. Kordic's command and that the Prosecution's proof on

13    that is just woefully inadequate.

14            JUDGE ROBINSON:  May you not be approaching the matter in too

15    formalistic a manner when you ask what troops are under his command?  I

16    think that situation, put in that formalistic way, is entirely appropriate

17    when you're dealing with a person who is, in fact, within the formal chain

18    of command.  But in respect of a civilian, I think the inquiry might have

19    to be a little different.  You have to look at a particular fact

20    situation.  You look at that fact situation and you ask yourself the

21    question:  In that fact situation, is there a relationship of superior and

22    subordinate?  I don't think it's a formal inquiry that you are going to

23    find settled anywhere that X number of troops are under his command, as

24    you would find in relation to a military commander, but I think the

25    inquiry has to be more pragmatic and empirical.

Page 28366

 1            MR. SAYERS:  I completely agree, Your Honour, and I was about to

 2    use that word myself.  It is a pragmatic inquiry.  But let's consider,

 3    even under the pragmatic inquiry, I just repeat:  What troops were under

 4    Mr. Kordic's command?

 5            JUDGE MAY:  Well, for a politician, there will never be troops

 6    directly under his command.  If your thesis was correct, it could mean

 7    that no civilian could ever be convicted of these offences because he

 8    would never have any troops directly under his command.  The thrust of the

 9    Prosecution case, as I understand it, which you have to meet, is this:

10    Not that he was directly in command of these troops - of course not - but

11    that he was ordering, in effect, what happened, or planning, and that his

12    orders were transmitted, of course, to commanders, or made together with

13    the military commanders.

14            The point which they make is that -- they've made throughout the

15    trial, and you have to meet, is that soldiers do not start these campaigns

16    on their own, that there will necessarily be some political involvement to

17    set the army, as it were, in motion.  And as I understand the Prosecution,

18    what they say here, of course, is that Mr. Kordic played that role.  He

19    was the political leader, if you will, who set the army in motion.

20            MR. SAYERS:  The question naturally arises, Mr. President, from

21    that, and I accept the observations that the Trial Chamber has made:  What

22    is the evidence of that?

23            JUDGE MAY:  That, of course, is the matter which we have been

24    considering with the Prosecution.

25            MR. SAYERS:  Yes.  And --

Page 28367

 1            JUDGE MAY:  But it's the basis of the -- it's the basis of the

 2    case which you have to meet.

 3            MR. SAYERS:  Obviously, Your Honour, I think that, phrased in the

 4    way that you've phrased it, that's more akin to a section 7(1) analysis.

 5    It really is planning, operations, instigation, things of that variety.

 6    It really is a section 1 analysis rather than a section 3 analysis,

 7    section 7 of the Statute.

 8            JUDGE BENNOUNA: [Interpretation] Mr. Sayers, that is 7(1) indeed,

 9    planning and other forms of participation, of involvement.  But 7(3)

10    speaks of effective control, as you yourself have admitted, about the

11    effective control of a civilian, and it is defined as an effective

12    possibility to exercise one's influence to prevent a crime of which one

13    learns or to punish crimes which were known or had reason to know.  So

14    that 7(3), under 7(3), one can also be responsible as a civilian if one

15    has effective control, that is, the possibility, the authority to prevent

16    or stop an action or the authority to punish possible perpetrators.  That

17    is the military chiefs, in the strict sense of the word.

18            So the president -- so you can address question 7(1) directly,

19    that is, planning, instigation, and -- of crimes in an organisational

20    manner, that is, to organise or to participate directly in their

21    perpetration, and they all are involved in the responsibility for action,

22    that is, the organisation of a crime.  And the second part is the

23    responsibility for omission; that is, one knew, did nothing.  One had the

24    power to do something, but did nothing.  And that applies to military

25    authorities as well as to the civilian authorities.

Page 28368

 1            MR. SAYERS:  Yes, indeed, Your Honour.  Absolutely.  But we would

 2    respectfully submit that there is no evidence that Mr. Kordic planned any

 3    military operations.  No credible evidence, anyway.  There's some

 4    suggestion made regarding his activities on the night of the 15th or

 5    during the afternoon of the 15th, as the Court well knows.

 6            The first version was that he was in Donja Veceriska.

 7            The second version was:  "No, he was in the Dubravica high school

 8    with the Vitezovi," although the proponent of that theory, Mr. Breljas,

 9    subsequently recanted it and said, "Well, maybe it was the 16th."  And we

10    then find out from other witnesses that Mr. Breljas, A, was not in

11    Vitezovi on that date.  He cropped up fortuitously in the vicinity of the

12    Kalen gas station and was arrested, and at no point was he in a position

13    to be in the command meetings or to see who was there.

14            And then the third version the Court well knows from the

15    confidential witness who testified a couple of weeks ago.  But that's the

16    only evidence.  The confidential witness really is the only evidence

17    regarding the participation in planning activities.  That's it.  And

18    that's -- it's very disturbing to have that evidence crop up right at the

19    end of the case.

20            No witness testified to that, Mr. President and Your Honours,

21    during the 114-witness case in chief of the Prosecution.  Not a hint of

22    any planning meeting held between - assertedly, anyway - held between

23    civilian politicians and military leaders.  Every single witness - and

24    we've put this in our papers - to whom that proposition was put repudiated

25    it.  Every single one.  So you have one witness, and that's the thread

Page 28369

 1    upon which the Ahmici case depends.

 2            JUDGE MAY:  It's not quite that, because behind it, and this is

 3    what I was discussing with the Prosecution, there's the evidence about

 4    what happened in Busovaca, and no doubt you're going to address us on

 5    that.  But there is, as you now accept, the evidence that your client

 6    played a role in artillery matters, as you put it, in Busovaca.  The

 7    Prosecution would no doubt put it rather higher, but that is putting it at

 8    its lowest.  Now, that's in January.  There is then evidence that goes

 9    on.  You'll remember the evidence about the roads throughout February.

10    And it's against that background, no doubt, that the Prosecution invites

11    us to look at what happened in Vitez.

12            MR. SAYERS:  Mr. Naumovski will deal with that tomorrow,

13    Mr. President, but just let me wind up by saying -- since I feel time's

14    winged chariot hurrying near here, let me just say that there's a big

15    difference between playing an ad hoc role in artillery matters when your

16    own town is being attacked, as it was in January of 1993, and then taking

17    a planning role in launching an offensive operation, as the Prosecution

18    tries to suggest, in Ahmici and the surrounding villages in Vitez

19    municipality.

20            What is the evidence - and I come back to this - what is the

21    evidence that Mr. Kordic took a planning role in the conduct of those

22    operations?  And my respectful submission is that it comes down to one

23    witness.  It is -- that's the thread that the Ahmici case dangles from.

24    And for reasons stated in our brief, that's a very dubious and infirm

25    thread upon which to depend a credible criminal case against Mr. Kordic

Page 28370

 1    for that.

 2            Let me just finish by saying with respect to chains of command:

 3    Military police, we know who controlled the military police.  Colonel

 4    Blaskic; we know he issued the combat order on the morning of April 16th.

 5            Vitezovi.  Who controlled the Vitezovi?  Well, we know that.  Two

 6    things:  First of all, the combat order on the 16th of April; secondly,

 7    the report on April 15th by the commander of the Vitezovi, D343/1, tab 5.

 8    And here's what he has to say:  "Our unit will continue to carry out all

 9    orders issues by Colonel Tihomir Blaskic and will remain in the single

10    system of command and control."

11            So I think that finishes up with the Vitezovi.  And then there

12    were a variety of other stories that were told by other witnesses, such as

13    asserted control over the Scorpions, told by Witness U.  We had to

14    bring -- when he was 15 years old.  He was told, supposedly, by the two

15    Santic brothers that Mr. Kordic controlled the Scorpions.  We had to bring

16    Bruno Santic in to say, "No, that was not the case," affidavit from

17    Leonard Santic.

18            JUDGE BENNOUNA: [Interpretation] Mr. Sayers, don't you think that

19    after the presented evidence, Mr. Kordic had the power to prevent possibly

20    a military authority from committing -- from issuing, for instance, those

21    orders that you speak about which then led to the perpetration of certain

22    crimes?  Didn't he have it within his power to prevent the issue of orders

23    which then led to what they did?

24            MR. SAYERS:  No.  He was not in the military chain of command.  He

25    had no power to punish under the rules of military discipline.  He had no

Page 28371

 1    power to intervene.  In addition, even if he had such a power, which he

 2    did not, he would have had to have known that a crime was contemplated in

 3    order to intervene to prevent it, a crime, that is.  And once again, the

 4    Prosecution's case on that point comes down to one witness, as the Court

 5    knows, and I won't repeat everything that we've said in our brief about

 6    that witness.  I do not believe it's necessary to beat a dead horse on

 7    that.

 8            And with respect to investigations, there were investigations, but

 9    the evidence is absolutely clear that Mr. Kordic played no role in them,

10    no part in them.  They were conducted by the regular military authorities,

11    although quite inadequately, as we've seen.  But nonetheless, they were

12    conducted by the military authorities.  Mr. Kordic had no role in that, no

13    obligation, no role whatsoever.

14            And if I may, with the Court's permission, I'll just turn the

15    podium over to Mr. Smith, who will address the persecution issues.  Thank

16    you.

17            MR. SMITH:  Your Honour, may it please the Court.  Am I to assume

18    that we are going to adjourn at precisely a quarter to the hour?

19            JUDGE MAY:  No.  The hour.

20            MR. SMITH:  The hour.  Thank you, Your Honour.

21                          [Trial Chamber confers]

22            JUDGE MAY:  Judge Bennouna says you can have five minutes more for

23    questions.

24            MR. SMITH:  I'm greatly appreciative of Your Honour.

25            Let me go directly on persecution to what is charged.  That issue

Page 28372

 1    has come up already.  What is charged is a general campaign of persecution

 2    throughout the HZ HB, HR HB, and the municipality of Zenica.  There are

 3    essentially two methods of proof for this persecution case as charged, and

 4    Your Honours, in your April 6, 2000 decision on the motions for judgement

 5    of acquittal, have ably articulated those two methods.

 6            First, the Prosecution could go municipality by municipality,

 7    offering evidence of two things in every municipality:  A, persecution;

 8    and B, participation by Mr. Kordic.  And as plead, they would have to

 9    offer evidence in every municipality.  As Mr. Sayers has said earlier,

10    they have not done that.  We made that point at half time, as it were.  We

11    make that point again.  Your Honours said in your April 6, 2000 order that

12    the Prosecution had the choice instead of proving a general theory of

13    persecution applicable throughout, in general, the municipalities of the

14    Bosnian Croat institutions and Zenica, and that is what they have elected

15    to do.

16            Let me articulate for you what that theory amounts to.  First, the

17    question of persecution, because this, like the other method, has two

18    branches:  There must be proof that the central Bosnian Croat political

19    institutions discriminated against Muslims, persecuted them, as a matter

20    of plan or policy, in a way that reached into every municipality within

21    the sway of the institutions and into Zenica.  That's what has to be

22    proved as to persecution.

23            Secondly, it must be proved that Mr. Kordic participated in that

24    policy or plan in all of the municipalities and in Zenica by reason of the

25    fact that he was at a sufficiently high decision-making level of

Page 28373

 1    government, that he is criminally culpable for the asserted policy and

 2    plan established by the institutions.

 3            That is the method of proof chosen by the Prosecution.  That is

 4    what I will address.  The simple and short answer to the Prosecution's

 5    persecution argument goes to the second branch, and it has been

 6    articulated by my colleagues and will be articulated again tomorrow, and

 7    that is that there is no proof beyond a reasonable doubt that Mr. Kordic

 8    participated at the highest levels of decision-making of these

 9    institutions.  I will deal, therefore, but only, in my judgement, as an

10    alternative argument, since the first is clearly dispositive with the

11    question whether those institutions did, in fact, discriminate.

12            There are three pillars to the Prosecution's persecution case.

13    First, annexation; that Croatia wanted to annex to Croatia the parts of

14    Bosnia inhabited by Croats, including Central Bosnia, and was prepared to

15    use force to do it.  The latter part of the theory is just that; it is

16    only a theory.  The question of the use of force is critical.

17            Secondly, it is alleged that the institutions constituted a

18    monoethnic regime.  That is to say that they excluded Muslims, that they

19    were designed, from the outset, back in 1991, when founded, for the

20    persecution of the Muslim majority community in Bosnia in order to

21    accomplish the desired annexation.  The assertion here that the minority

22    Bosnian Croat community set out deliberately in 1991 to persecute the

23    majority Muslim population does not track reality.

24            The third pillar - and I will come back to each of these, in turn,

25    in a moment - is the assertion that within Central Bosnia there was a

Page 28374

 1    general military campaign of persecution against Bosnian Muslim civilians

 2    by the HVO.  That is the core of the Prosecution's persecution case, and,

 3    as our brief sets out at some length, it cannot stand up to analysis.

 4            Let me turn to two issues before I take each of these pillars in

 5    turn.  First, the question of the role of the Bosnian Croat institutions.

 6    We have argued throughout this case, and our brief establishes, in our

 7    judgement, that these institutions had legitimate political objectives

 8    within the existing borders and institutions of Bosnia and Herzegovina,

 9    and we have documented this at some length in both brief and annex.

10            Once Yugoslavia dissolved, there was no political consensus among

11    the three communities on the way that Bosnia should be structured or how

12    its government should function.  The Bosnian Croats argued consistently

13    for a decentralised federal or confederal political structure.

14            They did not secede, as the Serbs did.  They did try to work their

15    problems out within the framework of a sovereign and independent Bosnia.

16    They voted overwhelmingly for independence.  They continued to argue their

17    political position after independence, both domestically and in the

18    international talks on the future constitutional structure of Bosnia, a

19    constitutional structure which had not been resolved, as they had wished,

20    in the vote on independence, because the question, the Livno question, was

21    not put as the Croats had wished it would be.

22            They promptly signed every one of the various peace plans.  Their

23    vision of a decentralised federal/confederal structure for Bosnia

24    ultimately prevailed in the international discussions as the only viable

25    political structure for a Bosnia with three such diverse indigenous ethnic

Page 28375

 1    communities.  That's the first subject.

 2            The second subject:  It is argued this morning that what is

 3    involved here is a military enterprise solving a political problem.  I

 4    think Your Honours need to ask three questions.  If that were true,

 5    starting back in 1991, as is asserted and argued, why did the Bosnian

 6    Croats support the independence referendum overwhelmingly?  Question one.

 7            Question 2:  Why did the Bosnian Croats not attack the Muslims

 8    during the end of 1992, while the Muslims were weaker after the Serb

 9    attacks and while the Croats were relatively stronger?

10            Question 3:  Why did the Bosnian Croats not attack the big towns

11    in Central Bosnia, like Zenica, like Visoko, like Breza, like Kakanj, and

12    other major towns, instead of the small villages situated on the hills

13    overlooking the valleys in which they were trapped?

14            Let me now take each of the pillars of the persecution argument

15    quickly in turn.  First, the reality of the annexation argument is that

16    the Bosnian Croat institutions were, in fact, founded to promote the

17    collective self-defence against the Serbs not solely as a vehicle for

18    persecuting Muslims.

19            I turn first to the founding documents, Z27, November 18th, 1991.

20    "The community shall respect the democratically elected government of the

21    Republic of Bosnia-Herzegovina, Article 5," as long as it does not end up

22    in a rump Yugoslavia.  That's a paraphrase, the latter.

23            Secondly, I draw your attention to statements by Mr. Kordic,

24    himself, at a meeting in Travnik on June 26, 1992, at which Dr. Genjac was

25    present.  Mr. Kordic said that the Bosnian Croat institutions were "for

Page 28376

 1    cooperation with the Muslims," and that those institutions were only "a

 2    temporary resolution," and that the three constitutive peoples must agree

 3    on the final interior arrangement of the state of Bosnia and Herzegovina,

 4    and I refer you to Z141.1, page 9.

 5            The documents from the 1991, 1992 period introduced by the

 6    Prosecution themselves demonstrate clearly on analysis and we have done

 7    that analysis in the annex to this brief, and in our prior brief, that the

 8    Bosnian Croat civil and military institutions were initiated as a matter

 9    of collective self-defence against the Serbs, and evolved with the chaos

10    by necessity in the spring of 1992.

11            Let me say a brief word as to the annexation pillar about the

12    December 27, 1991 meeting in President Tudjman's office.  President

13    Tudjman, there, as the upshot and decision of that meeting, said that

14    there should be negotiations for what is called Option 3, as a political

15    solution without threat of force or use of force.  There were no

16    instructions to partition Bosnia, no instructions to secede at that time.

17    Clearly, no instructions or desire to proceed by force or threat of force,

18    on the side of the Serbs or the Muslims.

19            Let me go to pillar number 2.  The reality here is that the

20    Bosnian Croat institutions had no monoethnic policy, and did not

21    discriminate against or persecute the Muslims as a plan or policy applied

22    systematically and uniformly as it would have to be for the Prosecution to

23    be correct, throughout the HZ HB, HR HB, and the municipality of Zenica.

24    I point here to the witnesses, officials both high and low, named by my

25    colleague, Mr. Sayers, who verified in detail as to how and why there was

Page 28377

 1    neither de jure nor de facto discrimination as a plan or policy built into

 2    the laws, regulations, official bodies and practices of those

 3    institutions.

 4            The Trial Chamber has heard testimony from Dr. Ribicic who

 5    effectively agreed that there was no de jure discrimination.  The Trial

 6    Chamber heard the officials testify about the Muslims who retained office

 7    in these institutions.

 8            At the local level, in Busovaca, particularly --

 9            JUDGE BENNOUNA: [Interpretation] Excuse me, Mr. Smith, for

10    interrupting, but to you, what is called ethnic cleansing?  Do you -- does

11    that mean persecution to you?

12            MR. SMITH:  No, Your Honour, not necessarily.  Ethnic cleansing is

13    not a term that has any legal definition that I have been able to find.

14    It is used loosely, as our expert witness indicated, to cover many forms

15    of conduct, some of which are criminal, individually under Articles 2, 3,

16    and 5, and under Article 7, but it does not aid our analysis.

17            It seems one has to describe the physical conduct in question and

18    set it up against the legal standards in those Articles.  And I,

19    therefore, tend to eschew use of the phrase "ethnic cleansing" because I

20    do not believe that it advances analysis under the law.

21            JUDGE BENNOUNA: [Interpretation] Let us then look at things

22    differently.  In this case, during all those months of evidence, don't you

23    agree that there were actions of harassment, violence, so as to make

24    Muslim population to leave some areas, specifically the area of Busovaca,

25    and that, therefore, in some localities, there was physical threat in

Page 28378

 1    order to make the Muslim population to leave these areas planned and

 2    reserved for Croats in order to create homogenic population, that is, to

 3    create the population that would be specifically Croat?

 4            Would you agree with the Washington Agreement where it was decided

 5    to take note of certain realities existing on the ground and then admit

 6    certain facts?

 7            MR. SMITH:  I would answer that question, Your Honour, with three

 8    points.  First, there were instances of harassment on both sides,

 9    essentially similar conduct in Busovaca, in Croat areas and in Muslim

10    areas that you've heard about like Bugojno, Zenica, Kakanj.  But in my

11    judgement, that was not on either side subject to policy or plan or

12    pursuant to policy or plan.  In effect, as our expert witness said, it

13    bubbled up in the circumstances.  Point number one.

14            Point number two, within the pocket, the Lasva Valley pocket which

15    is the only area Kordic really had as his milieu, as my colleague said, in

16    Busovaca.  My colleague, Mr. Naumovski, will explain tomorrow and our

17    brief, in its statement of facts, at great length describes why there was

18    no persecution, that is to say, no discrimination, against Muslims in

19    1992.  In Vitez and Novi Travnik, there was no participation by Mr. Kordic

20    in whatever harassment may have taken place in either of those locations.

21            As for Busovaca, I would argue that the May 10, 1992 order, Z100,

22    was a reasonable response to a crisis situation created by the breaching

23    by the Muslims of the Kaonik weapons agreement.  It was not a pre-planned

24    discriminatory act as part of a policy and Mr. Naumovski will discuss

25    Busovaca tomorrow.

Page 28379

 1            Let me turn then --

 2            JUDGE MAY:  Well, Mr. Smith, if you are going to another point,

 3    it's now five past 5.00 and it's about time we adjourned, if that's

 4    convenient.

 5            MR. SMITH:  That's fine, Your Honour.

 6            JUDGE MAY:  We will continue tomorrow.  I think you've got just

 7    rather over an hour left.

 8            MR. SMITH:  Yes, Your Honour, and if I address you at all tomorrow

 9    morning, it will be with exceeding brevity.

10            JUDGE MAY:  When I say "you", I mean your team.

11            MR. SMITH:  I understand that.

12            JUDGE MAY:  Half past 9.00.

13                          --- Whereupon the hearing adjourned

14                          at 5.05 p.m., to be reconvened on Friday

15                          the 15th day of December, 2000, at

16                          9.30 a.m.










Page 28380













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