Page 13641
1 Monday, 15 July 2002
2 [Open session]
3 [Martinovic Defence Opening Statement]
4 [The accused entered court]
5 --- Upon commencing at 3.39 p.m.
6 JUDGE LIU: Call the case, please, Madam Registrar.
7 THE REGISTRAR: Good afternoon, Your Honours. This is case number
8 IT-98-34-T, the Prosecutor versus Naletilic and Martinovic.
9 JUDGE LIU: Thank you. For the sake of the record, may we have
10 the appearances, please? For the Prosecution?
11 MR. SCOTT: Good afternoon, Your Honours, Kenneth Scott for the
12 Prosecution and with me at counsel table of course are Mr. Vassily
13 Poriouvaev and Roland Bos and Ms. Kimberly Fleming.
14 JUDGE LIU: Thank you. For the Defence of Mr. Vinko Martinovic.
15 MR. SERIC: [Interpretation] My co-counsel is Mr. Zelimir Par. I'm
16 so sorry, I'm lawyer Branko Seric, member of the bar of Croatia. Defence
17 counsel for Vinko Martinovic and with me is Mr. Zelimir Par, who is my
18 co-counsel.
19 JUDGE LIU: Thank you. For the Defence of Mr. Naletilic, please.
20 MR. KRSNIK: [Interpretation] Good afternoon, Your Honours,
21 Kresimir Krsnik, Your Honours, lawyer from Zagreb, Christopher Meek,
22 co-counsel and Nika Pinter, legal assistant. Thank you.
23 JUDGE LIU: Thank you. Are there any matters that the parties
24 would like to address to this Trial Chamber?
25 MR. PAR: [Interpretation] Good afternoon, Your Honours. If we
Page 13642
1 could go to a private session for a few minutes? Because I would like to
2 inform you about certain problems that the Defence has come across of
3 late.
4 JUDGE LIU: Yes. We will go to the private session, please.
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22 [Open session]
23 JUDGE LIU: Now we are in the open session. In this case, we also
24 would like to ask the Defence team for Mr. Vinko Martinovic to file us a
25 new list of the witnesses. For those who have difficulty to come at this
Page 13648
1 week, might come at a later stage. Is that agreeable, Mr. Par?
2 MR. PAR: [Interpretation] Mr. President, our witnesses are here.
3 We have a group here, we are still waiting for one, and then we shall have
4 six witnesses here. They are the -- on the list that we have filed. I
5 hope we shall comply with that particular sequence. We hope that the
6 witnesses will be relatively short and that we should be able to finish
7 this first group by the end of this week or perhaps in the very beginning
8 of next week. So far we have no problems.
9 JUDGE LIU: Thank you very much. Today we will start the Defence
10 case for Mr. Vinko Martinovic. We are expecting this case to be finished
11 by the end of September, which means more or less one witness for one
12 day.
13 Yes, Mr. Seric, your opening statement, please.
14 MR. SERIC: [Interpretation] Thank you very much, Mr. President.
15 We have split our opening statement in two parts. I will address
16 the Chamber and my learned friend in turn, to present the case from the
17 view point of Defence. With regard to the facts and general postulates of
18 the indictment. And Mr. Par will then tackle the charges in the
19 indictment themselves, in so far as that is possible, in view, and please
20 do not be angry with me if I say what I have been repeating from the very
21 beginning, in view of the general nature of the indictment. And the lack
22 of specificity in it. My lady -- Your Honours, Mr. President, nothing is
23 as it appears to be. Nothing is as simple as it can be, and vice versa.
24 It is a question for all times. Is life simple and then a man
25 complicated? Or is life complicated and a man sets out to simplify it?
Page 13649
1 We are halfway through a case which speaks about war. What is
2 war? Again, a question for all times. War is woven the history of
3 civilisation, the history of man, and the history of man is unfortunately
4 the history of warfare. We learned that in school. Unfortunately, all we
5 learn is years when a particular war happened, regardless of whether there
6 is a Punic wars, wars between Athens or Thebes or wars waged by
7 Austria-Hungary or France or any other war. All we learn is years. Yet
8 war is part and parcel of this planet. There is war between different
9 species of both birds and four-legged animals. There is war for survival.
10 There is war within one species waged for predomination, war for power.
11 The drive for powers, is, Your Honours, a destructive driver. It is
12 stronger than the sexual drive but it also can be stimulating.
13 Yet war conceived by human mind and put through by human hands is
14 the worst war of all, and it destroys all life. No rational being can
15 justify war as such, but if you're attacked, you have the right to defend
16 yourself. It is a natural right and a right in nature. It is a right
17 between species and between humans who are one of those species. Both in
18 relation to the community as such and in relation to an individual. I
19 need to say something about self defence. In our specific case, I claim
20 that the Croats acted in self defence. They therefore waged a just war.
21 Their actions were sensible, necessary and proportional reaction to
22 attack, as stipulated by Article 31(1) of the Statute of this Tribunal.
23 The indictment sets out to paint a situation as black and white but as
24 a -- there is nothing which is black and white, it was not so in Mostar
25 either. Life is woven of colours. It is more real than film, and it
Page 13650
1 needs to be presented here in the courtroom more realistic, as more real
2 and more tangible than we would see it on film because that is the only
3 way justice can be dispensed.
4 Last year, speaking in front of a learned colleague, Fourmy,
5 Mr. Scott agreed with me, I proposed that along side those Statutes and
6 the Rules of Procedure and Evidence we all seemed to use as another basic
7 document Shakespeare's comedy, Much Ado About Nothing. Not because there
8 is anything funny in this tragedy but because the title reflects the
9 situation and position of my client. He was not any special figure in
10 this war. He never had any special powers or authority. He was just an
11 ordinary man who joined the war literally from the street, and a few days
12 later, in the middle of May, 1993, he became, through the concatenation of
13 circumstances, a commander for a group of young men from the neighbourhood
14 who called themselves "Mrmak," because Vinko Martinovic had a dog who was
15 called that. Now, can you imagine, can you imagine, what serious unit it
16 is with a dog's name? Yet they were serious combatants, they were
17 combatants on the front line they guarded. They were 50 to 70 metres of
18 front line throughout the war. And Vinko Martinovic together with them.
19 And that was that. And a great deal of ado was raised about it. We shall
20 prove, Your Honours, that this "ado," and I'm speaking in inverted commas,
21 about him and about nothing, was created by the media. They wanted to
22 fabricate, to manufacture, a culprit. For very many things that went on
23 in Mostar, although he, to all intensive purposes, never made a step away
24 from his defence line on Bulevar, and the witnesses will say so in the
25 courtroom.
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Page 13652
1 Vinko Martinovic was just a plain, ordinary foot soldier without
2 any special role in the war, without any rank in the military hierarchy,
3 with the lowest degree of responsibility, and limited action on the --
4 along the narrow line of the conflict. The only thing that he can be
5 blamed for, and we shall prove it, Your Honours, was to pick up the rifle
6 and go to fight, to defend his street, his neighbourhood, his home and his
7 people. And how powerful was this farmer, as the ancient Roman said, is
8 best proven by the reaction of Hans Koschnik, the international governor
9 of Mostar. A month after his arrival, somebody wanted to take him to a
10 very nice restaurants. I've been to it. I know it, which is called
11 Stela, Stela, like a star, but he didn't understand that, and he said,
12 "Stela, nix Stela," "Stela will kill me." And just as Hans Koschnik was
13 duped by these fables, by these tall stories about the ill famed Stela, so
14 did this Prosecutor's office also take over the accusations trumped up by
15 Bosniak secret services, notably the AID, and unfortunately I cannot but
16 say it, with the assistance of some Croatian secret services who
17 presumably wanted to protect somebody else. And started persecuting Vinko
18 Martinovic. In other words, the Prosecutor's Office took up the position
19 of the Muslim side of the conflict and taking over, without reservation,
20 witnesses served on them of questionable past and present, who had been
21 subjected to the blackmail and undue influence of AID. And to conclude
22 this part, Your Honours, the problem of Bosnia and Herzegovina, believe it
23 or not, has always been insoluble, and we need to start from that. In
24 Bosnia and Herzegovina and in the international community, and before this
25 Court, we must start from the fact that in Bosnia-Herzegovina there are
Page 13653
1 today three separate and specific political, cultural and religious
2 entities which emerged in the course of history, who suffered man-made
3 interventions from all sides and that includes interventions in the name
4 of democracy, in the name of the international community, but which,
5 however, more often than not proved to be a demonstration of force. One
6 needs to understand, Your Honours, that they cannot and may not be
7 outvoting, that they may -- that one may not and cannot speak in inverted
8 commas on behalf of one side only. In Bosnia and Herzegovina, there are
9 Bosniaks or Muslims, we shall allow them to call themselves as they
10 please, and also Serbs and Croats. Isn't it natural that each one of them
11 aspires to clearly define and bounded systems of their own.
12 Bosnia-Herzegovina belongs to its citizens, that is true. But the reality
13 is that they are of three flocks and the solution of the political
14 question is a prerequisite for the economic, cultural, linguistic and
15 other solutions. There are not all that many models, Your Honours.
16 Bosnia-Herzegovina will either be a state in which all its citizens,
17 across the width and breadth of this territory, will be sovereign or they
18 will not be sovereign but in that case, cantonisation will have to be
19 embarked upon in order not only to recognise the cultural and linguistic,
20 particularity but also the territorial and political integrity. The
21 international community seems to vacillate between these two options and
22 the Prosecutor's Office seems to have a similar approach. Yet in some
23 instances, it is radical, because what it means is an unconditional
24 protection of the federation, which as we have seen has no federal units,
25 and is therefore under a question mark as such. And witnesses who have
Page 13654
1 testified so far and who will testify, who we shall hear in this case,
2 have become hostile, allegedly now. I wonder hostile to whom.
3 According to the Bosniak Muslim option, because they are victims,
4 and automatically, their option, their political option, is the only right
5 one.
6 Your Honours, I believe that this case will shed full light on
7 certain questions and that a formula will be devised for
8 Bosnia-Herzegovina so that Bosnia-Herzegovina does not remain, and I'm
9 paraphrasing now, a Croatian linguist, so that it doesn't remain Buridan's
10 ass.
11 With regard to the fact that the Defence is confronted with the
12 indictment, and the facts given in the indictment, then we would start by
13 saying what facts does this Defence agree with so that we don't have to
14 prove them so as to make the work of this Honourable Chamber easier. It
15 is correct that Croatia proclaimed its independence on the 25th of June,
16 1991. It is correct that the European Community recognised the Republic
17 of Croatia on the 15th of January, 1992. It is correct that
18 Bosnia-Herzegovina proclaimed its independence on the 3rd of March, 1992.
19 It is correct that the European Community recognised the Republic of
20 Bosnia-Herzegovina on the 6th of April, 1992. It is correct that the
21 Republic of Croatia recognised the Republic of Bosnia and Herzegovina on
22 the 7th of April, 1992. It is correct that the Republic of Bosnia and
23 Herzegovina became a member of the United Nations on the 22nd of May,
24 1992. It is also correct that on the 18th November, 1991, it was
25 proclaimed that the HZ HB existed as a separate political, cultural,
Page 13655
1 economic and territorial entity in the territory of Bosnia-Herzegovina.
2 It is indisputable that on 18 November, 1991, the existence of the HZ HB
3 was proclaimed. However, what is disputable is that it was supposed to be
4 a separate political, cultural, economic and territorial entity in the
5 territory of Bosnia-Herzegovina as is claimed in the indictment.
6 The Defence has already proven by a number of documents that have
7 been provided to it by the Prosecution, by witnesses, some of whom were
8 testifying under a pseudonym but some of them testified as public
9 witnesses, like Jozo Maric, Bozo Raic and also our expert witness, Davor
10 Marijan and it will be confirmed. The Defence has submitted an annex,
11 that is an analysed -- that is an indictment broken down, and I'm going to
12 follow the facts that the Prosecution has established and I'm going to
13 present the thesis of the Defence, the thesis that we are going to prove
14 in our part of this case.
15 The Prosecution claims that the purpose, the intent, of the HZ HB
16 was to establish closer links with the Republic of Croatia. It is not
17 correct, claims the Defence, that the purpose of the Croatian Community of
18 Herceg-Bosna was to establish closer ties with the Republic of Croatia in
19 the way claimed by the Prosecution. The intent is visible from the
20 decision on the establishment dating 18 November, 1991. When the Serbs in
21 Bosnia and Herzegovina and the Yugoslav People's Army carried out violence
22 against the Croatian people and the government of Bosnia and Herzegovina
23 could not protect it because it had not prepared for the Defence, we know
24 what Alija stated at the time, Croats organised themselves. They
25 organised their units. And during the defence, they established Croatian
Page 13656
1 communities as follows: Posavina, Herceg-Bosna, Central Bosnia, Usora
2 and Vrhbosna. As the enemy attacks grew stronger, in the area of
3 Herceg-Bosna, a need was felt to provide for the coordination of municipal
4 units and to organise the defence of the centuries-long Croatian homes.
5 For that purpose, the representatives of the Croatian people who were
6 legally elected in the multi-party elections in 1990, members of the HDZ,
7 at their session on 18 November, 1991, in Grude, made the aforementioned
8 decision.
9 The Prosecution claims that Croatian currency and the Croatian
10 language were used in the HZ HB. In the HZ HB, Croatian money was indeed
11 used, but we have proven and we will continue to prove, that it was used
12 to a lesser extent than the German mark, and therefore, there could be no
13 conclusion of the expansionist intentions of the Republic of Croatia in
14 the territory of Bosnia and Herzegovina. Another issue is the language.
15 The Croatian people have always used a Croatian language, which was also
16 used by the Muslim people, which resided in the territory of Herzegovina.
17 There was never such a thing as a Muslim or Bosniak language, and our
18 Witnesses MB and Slobodan Praljak and Stiepo Andrijic, Jozo Maric and many
19 others have testified to that effect.
20 The Prosecution claims that the Republic of Croatia made it known
21 that it supported the intentions and desires of the Croatian Community of
22 Herceg-Bosna. The Prosecutor claims that the Republic of Croatia made it
23 known that it supported the desires of the HZ HB. However, this is a very
24 simplified statement which cannot be confirmed easily. The Prosecution
25 exhibit P155 is a letter by Dr. Franjo Tudjman to Alija Izetbegovic and
Page 13657
1 the date of that letter is 5 July, 1999. This letter confirms everything
2 that the Defence of both Mladen Naletilic and Vinko Martinovic claim.
3 The Prosecution furthermore claims that the Republic of Croatia
4 granted dual citizenship to Bosnian Croats. This is correct. However,
5 the Republic of Croatia gave Croatian citizenship as dual citizenship. It
6 did not appropriate that part of the people. It did not just annex that
7 people into the Croatian corpus in the Croatian state. The Prosecution
8 claims that by the decision of 14 September, 1992, the constitutional
9 court of Bosnia-Herzegovina proclaimed the Croatian Community of
10 Herceg-Bosna illegal. It is correct that the constitutional court of
11 Bosnia and Herzegovina proclaimed the Croatian Community of Herceg-Bosna
12 illegal. However, the legitimacy, the authorities, and the power of the
13 constitutional court is not only disputable but the Defence is also going
14 to prove that the constitutional court via facta ceased to exist. It is
15 enough to ask ourselves this: If the constitutional court proclaimed the
16 Croatian Community of Herceg-Bosna illegal, how come that Alija
17 Izetbegovic, the talked to, negotiated with and signed agreements reached
18 with the representatives of something that is illegal, that does not in
19 fact exist? We have documents that we have only received only recently,
20 one or two days ago, and this documents are -- these documents are going
21 to prove exactly what I have just said.
22 Later on, the Prosecution claims that the international community
23 has never recognised the self-proclaimed Croatian Community of
24 Herceg-Bosna. The international community has never recognised the
25 Croatian Republic of Herceg-Bosna, which was self-proclaimed on 28 August,
Page 13658
1 1993.
2 What is actually correct? This is actually correct. But it
3 doesn't mean a thing, because this recognition was never asked for, but if
4 we wish to embark on theoretical discussions, then we can say that a state
5 is determined by principal elements as can be found in World Book of
6 Encyclopaedia, in 1990, and which says that the territory, population and
7 sovereign government are -- these are the terms that determine a state,
8 the term state generally means an area of land whose people are organised
9 under a sovereign government. Many authors claim that for a state, it is
10 not important that it should be recognised by other states. What is
11 important is that it recognises the international laws and that it is
12 subject to it. Therefore, the Croatian Community of Herceg-Bosna was an
13 organisation of defensive nature which was established so as to help the
14 Croats of Bosnia-Herzegovina to defend themselves from the JNA aggression
15 and throughout all that time it was illegal. The documents and the
16 organisation of the HZ HB and the HR HB and the HVO demonstrate that these
17 were only temporary organisations which were needed during the war.
18 Unlike the Serbs in Republika Srpska, which passed its own
19 constitution and created a whole new system of laws, the Croatian
20 Community of Herceg-Bosna mostly applied those laws which were in effect
21 in the Republic of Bosnia-Herzegovina. New laws and new regulations were
22 passed only to fill the gaps and to adapt the laws of the Republic of
23 Bosnia-Herzegovina where it was necessary. In essence, the laws of the
24 Republic of Bosnia and Herzegovina were implemented and applied unless
25 when there were valid reasons for their -- for those laws to be
Page 13659
1 supplemented. The HZ HB and the HR HB advocated the sovereignty of
2 Bosnia-Herzegovina and tried to find a solution for all the three peoples
3 trying to maintain the traditional status of Croats, the status of a
4 constituent people. The HZ HB established its institutions as a necessity
5 because of the collapse of the systems existing in the Republic of
6 Bosnia-Herzegovina. The Presidency had stopped functioning irrespective
7 of the things that we heard in this courtroom. This is not correct. The
8 Defence claims, has proven and will continue to prove that the Presidency
9 had stopped existing and functioning. The government ceased to exist. So
10 the indispensable elements of the statehood of one state, and that is the
11 government, the positions of the government and the implementation of
12 power in the entire territory of a state, from the centre, for all
13 practical purposes had ceased to exist.
14 It is a rhetorical question, when we ask: Did the presidency and
15 the government in Sarajevo have power in Banja Luka? They didn't. Did
16 they have power in Pale? Did they have authority over Pale? No, they did
17 not. And whoever says anything like that is lying. Were they controlling
18 the situation in East Herzegovina? No, they did not. In other words, the
19 agencies of authority in Sarajevo could neither communicate with the rest
20 of the state, nor did they have any control over it. And we have already
21 heard, Your Honours, from our expert witnesses that the banking system did
22 not work, there was no border control, there were no customs, taxes were
23 not paid, mail -- I mean it really sounds trivial reason but when you
24 speak about authority, a government in an area but the fact is that there
25 was no communication, that is mail was not delivered. Citizens trying to
Page 13660
1 communicate with their family members in other towns, in Brcko, in Zenica,
2 in Sanski Most, while living in Mostar, could not either call by telephone
3 or send them a letter. So in order to have life in Herzegovina and in
4 Bosnia, where Croats could have some say, where Croats could bring some
5 contribution to have this life go on more or less normally, one will to
6 set up institutions as a citizen's service. Likewise, one had to form the
7 HVO in the first place as a form of defence against the Army of Republika
8 Srpska and the JNA, and later on as an efficient and well organised
9 military force with two components, military and civilian. It was a
10 historical necessity and the logical corollary to the situation in which
11 the Croats of Bosnia-Herzegovina found themselves in.
12 We shall prove that. And it was logical that we -- that the
13 Croats needed to do that.
14 Mr. President, I do not know when you were planning to have a
15 break.
16 JUDGE LIU: Well, probably at 5.00. Then we will break for 30
17 minutes.
18 MR. SERIC: [Interpretation] Thank you very much.
19 We heard during this case so many things about the participation
20 of the international community which was a necessity, which was necessary,
21 which was indispensable, and had an impact on everything that was
22 happening in Bosnia and Herzegovina, in the territory of the former
23 Yugoslavia, and as a result of which we have today's situation, today we
24 are in this courtroom and I am addressing you in my present role. If
25 there hadn't been such a will, maybe we would never be here in this
Page 13661
1 courtroom.
2 What I'm saying is that it is absolutely certain that the
3 international community could, at any moment, stop the war, but what I am
4 claiming here is that it did have the power to do that, but the war as we
5 know lasted for four years and it was only because the international
6 community allowed it to last, either for its ignorance, stupidity, a
7 decision, or for some other reason. These are not my words. These are
8 the words of Adrian Hastings, a historian, a professor of modern theology
9 and the history of religions of the University in Leeds. Operations in
10 the Balkans would be extremely dangerous because one would have had to
11 control an incredibly mountainous and inaccessible area of a large
12 fortress against the enemy, whose strategy owed a lot more to Giap, the
13 Northern Vietnamese general who participated in the Vietnam War than
14 to a classical western military mission. Again, these are not my words.
15 The estimate that one would have needed about 100.000 soldiers was said by
16 Colonel McCaffrey [phoen], on 11 August, 1992, in front of the Congress
17 board for armed forces, and such facts were -- sounded discouraging for
18 the members of the board, who all witnessed and participated the war in
19 Vietnam. Only a mere comparison with something like that was a
20 discouragement for them. Paul Williams said, at a round table in
21 Budapest, which took place between 25 and 27 September, 1998, before a war
22 starts, two things have to be known. Firstly, there is no such a thing as
23 international community. It is actually a seven-member group of countries
24 which dictate the world and which are made of -- which is made of the
25 United States of America, Russia, France, Great Britain, Germany, Italy
Page 13662
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Page 13663
1 and the European Union. And secondly, according to Paul Williams, the
2 strongest interests of that group are very selfish. They are not
3 necessarily interested in preventing ethnic cleansing or genocide. They
4 are primarily concerned with their own interests. The main interest of
5 the United States was to preserve the status quo, to preserve the
6 territorial integrity of the Socialist Federative Republic of Yugoslavia.
7 Germany had an economic interest because an influx of refugees would have
8 been detrimental for it. The Great Britain wanted to preserve its status
9 of a great power, by the historical ties between Serbia and Great
10 Britain. The French wanted to maintain the balance of powers in Europe.
11 Russia, who had their own worries, but they also wanted to preserve the
12 image of a world power. The Chinese were playing up to the United States
13 because of their trade relations and the situation in Tibet. That is why
14 the international community wanted, at all costs, to maintain the conflict
15 in its original area, within the borders of Croatia and
16 Bosnia-Herzegovina, and prevent it from spreading on to Kosovo. However,
17 as the conflicts intensified, the seven-member group of states, all of a
18 sudden could not believe when it heard that in the former Yugoslavia,
19 there were concentration camps and the first reaction of the American
20 government was, "This is not true. This is not possible." The key,
21 decisive role was played by the so-called CNN factor. When the reporter,
22 Roy Guttman visited the Manjaca Camp on 19 July, 1992, that is the camp 25
23 kilometres south of Banja Luka, and when he published on the 2nd of August
24 in Newsday, distributed in 800.000 copies, a photo on the front page with
25 a title "a death camp in Bosnia," this started an avalanche. And there
Page 13664
1 were some pieces of writing according to which it was estimated that there
2 were about 30.000 Muslims and Croats in the camps only in the area of
3 Banja Luka.
4 As these scenes inevitably reminded the world of the Nazi final
5 solution to the Jewish question, the general public and the humanitarian
6 organisations got excited and they made pressure on the United States,
7 which actually started sanctions against Belgrade. These were the words
8 of professor Paul Williams from the round table discussion, "War in
9 Croatia and Bosnia-Herzegovina," which took place in Budapest in 1998.
10 The Defence furthermore claims that the Article 3 of the document
11 on the proclamation of the HZ HB, dating 18 November, 1991, proclaimed
12 Mostar as the capital of that community. The selection of Mostar as the
13 capital of the self-proclaimed Croatian community was ratified by a decree
14 published by the President of the HZ HB on the 8th of April, 1990, by
15 which he also established the Croatian Defence Council. The seat of the
16 HVO was in Mostar. The election again was ratified by a decree issued on
17 the 28 August, 1993, by which the HZ HB was renamed into the Croatian
18 Republic of Herceg-Bosna. Throughout history, Mostar was considered the
19 capital of Herzegovina and is the biggest town in the region. The area of
20 Mostar municipality includes, amongst others, the following villages and
21 neighbourhoods: Rastani, Bijelo Polje, Vojno, Potoci, Rudnik,
22 Ilici, Djikovina, Panjevina, Rodoc, Podhum, Zahum, and Blagaj.
23 Before the beginning of the conflict, Mostar municipality,
24 according to the 1991 population census, had the following ethnic
25 structure: Of its 126.628 inhabitants, 34.6 per cent, or 43.856 were
Page 13665
1 Muslims; 33.9 per cent or 43.037 were Croats; 18.8 per cent or 23.846
2 were Serbs; 9.9 per cent or 12.768 were Yugoslavs; and 2.4 per cent or
3 3.121 were others. The Defence agrees with these figures and finds them
4 indisputable.
5 The Defence furthermore claims that the Croatian Defence Council
6 already in October, 1992, was attacked -- Bosnian Muslims in the town of
7 Prozor. It is not correct and we are going to prove that the HVO did not
8 attack Muslims in Prozor. It was the other way around. However, one has
9 to analyse everything that preceded the escalation of the conflicts
10 between Muslims and Croats in Bosnia-Herzegovina.
11 Your Honours, we have heard, and we will hear, that the victory of
12 the ethnically based parties at the first multi-party elections clearly
13 said that the communism and the international Yugoslav spirit was a
14 surrogate which had not killed nationalisms, or to be more precise,
15 chauvinism. The Muslim Party of Democratic Action, the SDA, rallied
16 around it, the majority of the Muslim population and its goal was to
17 preserve Bosnia-Herzegovina as a separate political unity, irrespective of
18 the facts whether it is going to be incorporated into some broader state
19 creation and its other goal was to create ultimately a completely Islamic
20 society. The Serbian Democratic Party, the SDS, which was the party of
21 Bosnian Serbs, bore a -- had the same name as the party of Croat Serbs in
22 Croatia but it carried more weight, because both in ideological and
23 numerical terms, with regard to other two peoples in Bosnia-Herzegovina.
24 Both these Serbian parties in Croatia and in Bosnia and Herzegovina were
25 part and parcel of a Serbian political movement whose centre was in
Page 13666
1 Belgrade. Its goal can be reduced to a very well known statement about
2 all the Serbs living in one state, which corroborates the fact that they
3 did not recognise republican borders and that their main goal was to
4 create ethnic borders.
5 The party of Croats in Bosnia, the Croat Democratic Union, was
6 called the same as the party in Croatia. In contrast with the leadership
7 of the party in the period before the war, its voters made it quite clear
8 that they were looking towards Zagreb and the Croatian president. The
9 party advocated the decentralisation of government in Yugoslavia by
10 transforming the country into a confederation in order -- so that the
11 internal republican boundaries could be could be preserved and only if
12 such a confederation could not come true, then separation from Yugoslavia
13 would become the order of the day, providing for the equality of the three
14 constituent peoples.
15 The parties which won the elections organised the government,
16 following the model of the lasting division, which the serious analysts
17 at the time already found unnatural and incompatible with democratic
18 practices and lacking functionality. And then the first time they entered
19 the world historical stage the ethnic parties made it known that the views
20 regarding the future of Bosnia-Herzegovina did not coincide, and this
21 should not come as a surprise because the same held true over their
22 interpretation of the past and the present. The war in Croatia in
23 1991-92, on Bosnian affected the Bosnian and Herzegovinian Croats in the
24 same way as it affected those in the mother country. An attack Croatia
25 was seen as an attack on Croats. As such, and that is also how the
Page 13667
1 attackers were seen. Those were Serbs regardless of the republic they
2 came from. Some of the Bosnian and Herzegovinian Croats voluntarily joined
3 the war. The Bosnian and Herzegovinian Serbs on the other hand, joined the
4 war in Croatia in large numbers because they considered themselves and
5 their whole national body perceived as the guardians of Yugoslavia, the
6 participation of Bosnian and Herzegovinian Muslims in the war, on the Serb
7 side, was reduced to the activity of a part of the officers corps in the
8 Yugoslav army, the recruits serving the regular military service and
9 reservist organised in the Yugoslav People's Army. On the Croat side
10 there were volunteers in the corps of the national guard of the Republic
11 of Croatia, yet one would say that in either case, the percentage of those
12 joining voluntarily was not too high and especially it was not equivalent
13 to the role of Bosnia-Herzegovina as the beginning for the attacks of the
14 JNA on Croatia. The area of Bosanska Krijina and East Herzegovina served
15 as a support for attacks on West Slavonia. They also served as support on
16 South Croatia from the mouth of the Neretva to Prevlaka.
17 The commander of the Territorial Defence of Bosnia-Herzegovina
18 even paid out Bosnian Herzegovinian reservists without the knowledge or
19 approval of the presidency of the socialist republic as it was still
20 called of Bosnia-Herzegovina, using for this funds of the republican staff
21 of the Territorial Defence of Bosnia-Herzegovina.
22 It is very important to note that at that time, the republican
23 sovereignty of Bosnia-Herzegovina was such that it will be much simpler to
24 answer the question whether it existed at all.
25 As I have already said, a part of the Bosnian Herzegovinian
Page 13668
1 territory could not follow in the steps of the local population. And thus
2 largely became an area of attacks on the Republic of Croatia. Apart from
3 the use of the Bosnian and Herzegovinian territory, the Yugoslav People's
4 Army also attacked the Croats in Bosnia-Herzegovina, as confirmed by the
5 devastated by the destroyed Croat villages in East Herzegovina. The
6 symbol of this victimisation, the biggest of them, the village of Ravno
7 came to epitomise those sufferings and here we come across the first
8 question: Is Bosnia and Herzegovina an aggressor in Croatia's eyes?
9 Bosnia and Herzegovina is a theatre of operations from which the operative
10 army of the Yugoslav People's Army is attacking Croatia and it is made of
11 some of the local nationals who -- without the tongue in the cheek,
12 embraced the policy of the centre in Belgrade, with the exception of the
13 boundary areas inhabited by Croats and these are Posavina and west
14 Herzegovina, with Livno and Tomislavgrad. The rest of the Bosnian and
15 Herzegovinian boundary, deep in the rear, the war zone developed with at
16 least two operational actions. The territory of Bosnia-Herzegovina thus
17 played a highly unfavourable role for Croatia, with the extraordinary
18 operational basis, which the JNA did not manage to put to proper strategic
19 use. This fact again is attached little weight. The three constituent
20 Bosnian Herzegovinian people had a very clear cut attitude to the war in
21 Croatia. The Croats and the Serbs participated in it, whereas the Muslims
22 endeavoured to remain aside in line with the well known Izetbegovic's
23 statement, "This is not our war."
24 If we perceive Bosnia-Herzegovina as an area which functioned in
25 its territory as we know it today, and that is the period much time
Page 13669
1 between 1878 to 1918 and from 1945 to 1991, then we can conclude that
2 Bosnia-Herzegovina always survived, owing to special status it enjoyed.
3 It is significant that this status, this guarantee of survival, that is
4 indivisibility has always been outside the border of Bosnia-Herzegovina.
5 In the Austro-Hungarian monarchy, it was under the ministries. In the
6 socialist Yugoslavia, it lived off the balance between the Croat and the
7 Serb question and towards the end of this state, it was actually joined by
8 the Muslim question. In the late 1980s, this equilibrium, which until
9 that time kept Bosnia-Herzegovina in one piece became upset and in late
10 autumn of 1991 it ceased to exist.
11 The Prosecution namely claims that then the conflict, the armed
12 conflict ensued between the Croat Defence Council and the armed forces of
13 the Army of Republic of Bosnia-Herzegovina, which lasted until February,
14 1994. However, the war developments in 1992, already followed after a
15 political foreplay in the latter half of 1991. Mr. Krsnik's -- that is
16 Mr. Naletilic's Defence has already produced evidence to that effect and
17 those were our joint witnesses. However, I need to say that politically
18 speaking, that on the 24th of October, 1991, Bosnian Serbs founded the
19 assembly of the Serb people in Bosnia-Herzegovina, on the basis of the
20 plebiscite of the Serb people of the 9th and 10th October, 1991, on the
21 21st of October, Serb autonomous regions in Bosnia-Herzegovina were
22 verified and confirmed. The next step was made on the 21st of December,
23 1991, when it was decided to embark on the establishment of the Republika
24 Srpska of Bosnia-Herzegovina and that was put into effect on the 9th of
25 January, 1992. This set in motion the separation of the central
Page 13670
1 republican bodies of power in one part of Bosnia-Herzegovina and this
2 process was brought to its close -- to its end. After the Serbs, the
3 Croats of Bosnia-Herzegovina also demonstrated their need to organise
4 themselves in a republic, which was less and less of a republic with every
5 day. At a meeting of presidents of Crisis Staffs of the Herzegovina and
6 Travnik regional communities in Grude on the 12th of November, 1991, it
7 was decided that the Croat people in Bosnia-Herzegovina had to, at long
8 last, start pursuing resolute elective policy which would and should bring
9 about the realisation of our age-old dream about a joint Croat state.
10 Whereas the conclusions of the meeting, spoke about the strategy
11 of Bosnian Herzegovinian Croats and that was the establishment of a
12 sovereign Croatia within its both ethnic and historical possible borders,
13 six days later, there were denied by the decision on the establishment of
14 the Croat Community of Herceg-Bosna, which stipulated that the community
15 would respect the democratically elected government of the Republic of
16 Bosnia-Herzegovina, as long as there was the state independence of
17 Bosnia-Herzegovina in relation to another state or any other former
18 Yugoslavia. In the decision on the sovereignty of the Assembly of
19 Bosnia-Herzegovina of the 15th of October, 1991, says among other things,
20 that Bosnia-Herzegovina will develop as a civil republic and as a
21 sovereign and indivisible state. It will be neutral in the conflicts
22 between Serbia and Croatia, and it can remain in the Yugoslav community
23 only if Serbia and Croatia also remain in it, and that is a reflection in
24 point of fact of the Muslim option. For other peoples, that view was
25 already obsolete, was already outdated. Yugoslavia was bursting at its
Page 13671
1 seams and Bosnia-Herzegovina was a Yugoslavia in small.
2 For Croats and for Serbs, Muslims were not adversaries but neither
3 were they allies. And that was the situation until April 1992, when a new
4 page of Bosnian Herzegovinian history started. The time before the war in
5 Bosnia-Herzegovina was characteristic of the preparations of political
6 parties for the war. The intensity of these preparations was not always
7 the same. Basically, because the initial stages were different. The SDS
8 was in the forefront. A Serb party which was supplied with weaponry by
9 the JNA turned pro-Serb. The Croats also came by weapons through the HDZ,
10 in significantly smaller quantities than the Serbs, but sufficient to
11 gradually reduce the inferiority complex after the JNA had disarmed the
12 republic and territorial defence. True, with Muslims, the situation was
13 much less propitious, partly because they found themselves in the gap
14 between the political leaders and the people, and nonetheless, they also
15 started making some very early steps in that respect. The Muslim
16 Patriotic League, which was set up on the 2nd of May, 1991, could be
17 treated at that time only as a paramilitary party unit. After that, on
18 the 10th of June, 1991, in the Sarajevo police house, at a meeting of
19 leading Bosniak public figures, from all over Yugoslavia, was founded
20 under the umbrella of the SDA, the Council of the National Defence of the
21 Muslim People with the Patriotic League as its military wing. The
22 political stage in Bosnia-Herzegovina at that time was remindful of the
23 political scene in the kingdom of Yugoslavia from the time of the accord
24 between Dragisa Cvetkovic and Vladtko Macek, when the political
25 representatives of the Serbs and Croats solved the vital matters and the
Page 13672
1 Muslims were somewhere in the wings. The common aspect of this so-called
2 arms race was its -- was the ethnic principle which governed it.
3 Everybody armed himself separately.
4 At a military meeting of the Muslim Patriotic League in the
5 village of Mehurici, near Travnik, held on the 7th and 8th February, 1992,
6 it was concluded that they were available between 70 -- 60 and 70.000
7 armed members. Towards the end of February, the directive for the
8 defensive sovereignty was adopted and it shows clearly that the Patriotic
9 League considers as the destructive forces in Bosnia-Herzegovina the SDS
10 with the Yugoslav Army and the extremist wing of the HDZ. The chief
11 purpose of this directive was the protection of the Muslim people, the
12 preservation of the integrity of Bosnia-Herzegovina, with a view to
13 assuring once again the joint -- the coexistence of all peoples and
14 national minorities in the state territory of Bosnia-Herzegovina. Item
15 three of this directive calls on the people of Sandzak, Kosovo and
16 Macedonia to give proof of their solidarity with our just struggle and
17 engage immediately in combat operations and I'm talking about February,
18 1992, to immediately engage in combat operations, in order to tie up the
19 enemy forces and weaken its striking power in the territory of
20 Bosnia-Herzegovina. And the same time to establish contacts, cooperation
21 and coordination in joint operations with the Croat people in
22 Bosnia-Herzegovina against a common enemy. In relation to the beginning
23 of the month, this was a major head way because the extremist wing of the
24 HDZ is no longer mentioned.
25 And this would in a way be the end of the first part of my
Page 13673
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Page 13674
1 statement so that ...
2 JUDGE LIU: Yes. We will have a break and we'll resume at 5.30.
3 --- Recess taken at 5.00 p.m.
4 --- On resuming at 5.31 p.m.
5 JUDGE LIU: Before we start, Mr. Seric, would you please indicate
6 in your motions the -- what kind of protective measures your witnesses
7 will need during the proceedings? Because up to now, we haven't received
8 any requests for the protective measures.
9 MR. SERIC: [Interpretation] Your Honours, I believe that we have
10 already mentioned those, but in any case, I will repeat that in the course
11 of the day tomorrow. Our first witness does not require any protective
12 measures, and a number of others following the first one are going to have
13 a pseudonym, face distortion and voice distortion with the exception that
14 for witness number 2, we are asking for a closed session. His -- he is
15 supposed to appear before the Honourable Court on Thursday.
16 JUDGE LIU: I see. Yes. Madam Registrar?
17 THE REGISTRAR: I would just like to inform the Defence that if
18 protective measures such as voice distortion is required, audiovisual
19 needs 24 hour notice so that they can prepare the machines and everything,
20 and there won't be much delay. So just please inform me how many
21 witnesses exactly what order they will need the voice distortion.
22 JUDGE LIU: Yes. Another matter is that how long are you going to
23 take to finish the opening statement? It is our intention to have the
24 first witness tomorrow.
25 MR. SERIC: [Interpretation] Your Honours, it shall be so. Whether
Page 13675
1 we are going to be able to finish the first witness tomorrow, I don't
2 know, because it doesn't depend solely on the Defence. I believe that
3 we -- if we hadn't started with a delay, I would have finished my opening
4 statement today, and then my colleague, Mr. Par, would have finished
5 tomorrow. In any case, we will start with our first witness tomorrow, and
6 I believe that the Defence will finish the witness tomorrow as well.
7 JUDGE LIU: Well, as I said to Mr. Par on the last day of
8 Mr. Naletilic's trial, we said that the opening statement is just a
9 summary of the case, not a process of presenting evidence, and it's also a
10 one-sided view from the Defence side, that is the statement from your
11 side, and here you're addressing to the Judges, not a jury. The jury is
12 laymen. We have been sitting in this case for quite a long time. As for
13 all the background issues, we have got a rough idea of what you are going
14 to claim. So please be as concise as possible in your opening statement.
15 We really need to hear our first witness. Anyway, you may proceed,
16 Mr. Seric.
17 MR. SERIC: [Interpretation] I would like to continue, Your
18 Honours, by saying that during 1991 and 1992, the JNA pulled out the
19 troops and the material and technical equipment from Slovenia and Croatia,
20 and from these areas, the JNA started a war in order to encircle, to round
21 off the Serbian ethnic area. Fast successes were achieved in Eastern
22 Bosnia in the areas where the majority Muslim population. In the area of
23 Southwestern Bosnia, except for the successes in Kupres, Serbs achieved a
24 double failure in the Croatian areas around Livno. There were failures in
25 the attempt to occupy Sarajevo as well as in the Neretva Valley. Towards
Page 13676
1 the end of March, attacks and battles started in Bosnian Posavina. I
2 apologise, Your Honours. I have been reading too fast, because Your
3 Honour has told me to be more concise and that's what has made me be
4 faster. At this moment, it is very difficult for me to curtail my opening
5 statement which I have not only prepared but I also have written it down.
6 Especially in view of the fact that some things have not been said so far,
7 although we may have heard it directly or indirectly from witnesses. But
8 so far, our case has not been presented in this way.
9 In any case, our opening statement is not going to be as long as
10 some others have been.
11 In the area of Bosanska Krajina, where there was no major
12 resistance, the practice of ethnical cleansing started by opening
13 concentration camps, the practice which later on spread to other parts of
14 the Serbian Republic of Bosnia-Herzegovina. It seems that in this first
15 stage of the war, the JNA or the Army of the Serbian Republic of
16 Bosnia-Herzegovina, from the 2nd May onwards tried to occupy everything
17 that could be occupied in the areas accessible to tanks. In the areas
18 where tanks could not reach, either due to inaccessible terrain or due to
19 a major resistance, successes were considerably few and far between.
20 After the initial period, any success could have been achieved only
21 painstakingly with a major engagement of troops and material and technical
22 equipment. Such was the case in Bosanska Posavina and in Jajce. The
23 first stage of the war for Croats and Muslims was characterised by their
24 attempt to consolidate their defence lines. In the context of -- in this
25 context, the significance of Croatian successes is strategically more
Page 13677
1 important for a simple reason, it was tied to the successes of Croatia,
2 which for both threatened peoples was the logistical base and support. We
3 have to bear this in mind. Croatia was a logistical base and support.
4 The defence activities and operations of the Croatian Army, or better say
5 the national guard corps, on the borders with northern and, eastern
6 borders of Eastern Bosnia-Herzegovina meant a direct support to the Army
7 of Bosnia and Herzegovina in depth, because by their combat operations
8 they tied part of the Bosnian Serb troops and enabled, allowed for the
9 logistical and humanitarian traffic.
10 What I would like to say is that there is a great deal of
11 collective amnesia with regard to that fact, not only in Bosnia and
12 Herzegovina, but also in Croatia.
13 When Jajce and Bosanska Posavina fell, the war with the Army of
14 Republika Srpska was brought to an end. When Livno was defended together
15 with the part of the Verbas valley and part of Central Bosnia and
16 especially the success in the Neretva valley, which ended with the June
17 Dawn, the Croatian Defence Council reached a stalemate with the Serbs,
18 after which there were only position combat fightings, with the exceptions
19 of Orasje and parts of the battle front in Posavina. Several meetings
20 between the leaderships of Bosnian Serbs and Croats outside of Bosnia and
21 Herzegovina do not -- did not yield any concrete results. By summarising
22 the events in 1992, the chief of the HVO staff concluded that the forces
23 of the HVO, despite problems and difficulties, managed to control 70 per
24 cent of the free territory of Bosnia and Herzegovina and that by creating
25 its armed forces in the areas of HZ HB, the Croatian people defended
Page 13678
1 itself and the majority of Muslims. The Army of Bosnia and Herzegovina
2 had least reasons for satisfaction. At the end of 1992, it had under its
3 control the lowest ratio between their numbers and the areas that it
4 controlled.
5 The open Muslim Croatian conflict started with a foreplay much
6 before the first conflicts in Mostar and culminated in the final break-up
7 between the Army of Bosnia and Herzegovina and the HVO. The Presidency of
8 Bosnia-Herzegovina published a decree on the unification of the Bosnian
9 Herzegovinian armed forces on the 9th of April, 1992. On the 15th of
10 April, the HVO established its main staff, and there was also at the time
11 a very Muslim nature of Izetbegovic's regime. The structure of that
12 Bosnian regime, in which the SDA dominated and the HDZ was a subjugated
13 partner, accelerated the break-up of the Bosnian state. Until January
14 1993, Sefer Halilovic accused Croatian politician its for the conflict
15 between the Bosnian Army and the HVO. On 20 May, 1992, the HVO was
16 officially considered an integral part of the BH Army and the agreement
17 between Tudjman and Izetbegovic on the 21 July, recognised the HVO and the
18 BH Army as separate components of the armed forces of Bosnia and
19 Herzegovina, which will have a joint staff. The political breakup between
20 the armed forces of Bosnia and Herzegovina into
21 two parts, being the HVO as the Croatian force and the Army of Bosnia and
22 Herzegovina as the party -- Army of the SDA under the more pronounced
23 Muslim domination. The Vance Owen plan in 1993 was the last straw that
24 broke the camel's back because the Croatian party perceived this plan as
25 the plan that gave legitimacy to the power in the three provinces
Page 13679
1 according to the -- which according to the plan were Croat, but in these
2 provinces, the BH Army units refused to put themselves under the command
3 of the HVO and started fighting. After the Trebevic Operation by which
4 Alija Izetbegovic placed under his control the 9th Motorised and the 10th
5 Mountain Brigade, and by after which he put the government under its
6 control, the ideology of the Army of BH saw its final transformation, and
7 the Bosnian Muslim element became evermore pronounced. The Islamic
8 orientation of the army became stronger and Rusid Mominovic [phoen], the
9 head of the Department for Religious Issues, in the administration for
10 political issues of the BH Army claimed that as far as the Army of Bosnia
11 and Herzegovina was concerned, the Islamic community wanted not only to
12 cater to the needs of those people who believed in Islam but also that the
13 Islam and the Muslim traditions became the foundations for the creation of
14 the Bosniak Muslim state, especially if we wanted for the army to resemble
15 its state. The Islamic patriotism or the religious patriotism were
16 synonyms of the Bosniak liberation fight. The units of the 7th Muslim
17 Brigade and the
18 Black Swans were more radical in their Islamic fundamentalist motives.
19 These units constituted a -- the foundation for the parallel system of
20 command and the parallel chain of command used by Izetbegovic and his
21 associate, Hasan Cengic. The Washington Agreement in March, 1994, very
22 soon transformed the BH Army into a Muslim army so that the BH Army became
23 a SDA party army, independent of the control of any state bodies. So that
24 in April, 1994, the army administration for morale announced a research
25 project under the title of the personal role of Alija Izetbegovic in the
Page 13680
1 defence organisation of the people. On the 22 October, 1994, of the --
2 Alija was proclaimed the honorary commander of the extremist Islam --
3 Islamic fundamentalist 7th Muslim Brigade. The legality and the
4 legitimacy of the newly recognised state of Bosnia and Herzegovina relied
5 on the institutions such was the Territorial Defence which was transformed
6 into the Army of Bosnia-Herzegovina. The main staff accounted for only 80
7 per cent of Croats. Very soon, the SDA radicalised its position and
8 started pursuing a radical policy in the army and the police and started
9 claiming that Bosniaks were the main people in Bosnia and Herzegovina.
10 The SDA forged the history of the country, so as to provide for the
11 unitarian character of Bosnia-Herzegovina. Its ambition was to make
12 Bosniaks not -- if not its main -- if not its only factor then at least
13 its main factor.
14 On 18 March, 1992, Boban, Karadzic and Izetbegovic, under -- with
15 the mediation of Cutilheiro, adopted a declaration on the principles of
16 the new constitutional order and organisation of Bosnia-Herzegovina.
17 Bosnia and Herzegovina has to be an independent state made of three --
18 JUDGE DIARRA: [Interpretation] Can you please slow down for the
19 French interpreters?
20 MR. SERIC: [Interpretation] Bosnia and Herzegovina has to be an
21 independent state made of three entities, based on ethnic principles,
22 bearing in mind economic, geographic and other criteria, and the working
23 group has to base its work on the fight for the national, absolute or
24 relative majority in every municipality. The conflict between the HVO and
25 the BH Army was the fight for space. The Serbs occupied over 60 per cent
Page 13681
1 of the territory of Bosnia and Herzegovina by expelling Bosniaks and
2 Croats. Bosniaks found their refuge mostly in Central Bosnia, and this
3 changed the demographic balance, and when Bosniaks started settling in the
4 areas with the majority Croatian population, it was -- this was deemed by
5 the leadership of the HDZ in Bosnia and Herzegovina as taking the
6 territory away from Croats. This resulted in conflicts in Gornji Vakuf.
7 However, during the fierce fighting between the Army of Bosnia-Herzegovina
8 and the HVO, there was a cooperation in many other theatres of war in
9 Orasje in Northern Bosnia, in the region of Tuzla, in the area of
10 responsibilities of the 2nd Corps of the Army of Bosnia and Herzegovina
11 and in Sarajevo. Why am I saying this? This shows that this had the
12 nature of non-international armed conflict.
13 The Prosecution claims that the Croatian Defence council, already
14 in October, 1992, attacked Bosnian Muslims in Prozor. However, the open
15 Muslim-Croatian conflict, which characterised the year 1993, had its
16 foreplay from -- in the -- from the first days in Bosnia-Herzegovina. We
17 cannot ignore some facts. For example, in the public security station in
18 Bugojno, the war police was given ammunition but only the ammunition was
19 given only to Muslims, and they were told to hide it from the Croat
20 members of the police. At the time, in Gornji Vakuf, there were tensions
21 between Croats and Muslims. Although these two sentences that I have just
22 read, on the face of them, depict the situation at the end of 1992 and the
23 beginning of 1993, these two sentences were written much earlier, on the
24 2nd of April, 1992, in the regular daily report, in this case of an
25 unbiased command of the 30th Partizan division of the JNA, which
Page 13682
1 immediately before the beginning of the war in Bosnia and Herzegovina had
2 an area of responsibility from the Kupres Plateau, the valley of Vrbas
3 River to the general area of Janje. The distrust in the mutual
4 relations which was recorded by the military intelligence of the 30th
5 Partisan Division prevailed as a rule everywhere where the -- where there
6 were equal shares of the two or more peoples, i.e. where the number of
7 ones was not big enough to prevail over the other ones. In such areas,
8 one party could not convincingly impose itself on the other party.
9 We can say that in the -- in Bosnia and Herzegovina, there were
10 such uniform areas and pure ethnic areas, i.e. the areas in which one of
11 the constituent peoples showed a predominant or position or pronounced
12 prevalence. All the conflicts dated back to 1992, the conflicts which
13 preceded the open war occurred in such areas, to be more precise in the
14 area of Central Bosnia. The only exception to this rule is a conflict
15 in Sarajevo in the neighbourhood of Stup, which was a small Croatian oasis
16 in the area where Muslims were predominant people. It seems that
17 Uskoplje, in the general area of Gornji Vakuf, was the area where the
18 first open conflict between the HVO and the Territorial Defence took place
19 at the end of April, 1992, and this recurred on the 20th and 21 June,
20 1992. At the beginning of May, there was another conflict in Busovaca,
21 which reoccurred in the following month. In Novi Travnik, in the late
22 afternoon of the 19th of June, there was a conflict between the units of
23 the TO staff on the one hand and the units of the HVO and the HOS on the
24 other hand. There were some other tensions in Konjic and at the beginning
25 of August, a conflict broke out in Kiseljak. However, in this first stage
Page 13683
1 of tensions between Muslim and the Croatian sides, the date of 17 August,
2 1992, occupies a very special place. This is the day when the units of
3 the Territorial Defence of the BH broke -- stormed into the Croatian
4 settlement of Stup in Sarajevo. Due to the consequences suffered by the
5 Croatian community, this incident stands out from all other, all previous
6 conflicts, which were local. The chronology of the conflict between the
7 HV Army and the Army of Bosnia-Herzegovina starts with the incidents in
8 Prozor. They were preceded by the tensions which could be felt between
9 the HVO and the Territorial Defence of Bosnia-Herzegovina, throughout
10 October, primarily in Travnik.
11 I have just been warned that we have mistake in the transcript.
12 It seems that the transcript has it that it was the Croatian Army, not the
13 HVO so I'm asking for a correction here. The temperature was additionally
14 raised by the TV Sarajevo and its show called "Document," when it showed
15 the alleged massacre of members of the Territorial Defence in village
16 Lijesce, whereas the real protagonists of that incident were members of
17 the Travnik HVO. The massacre took place on the 15th of May, 1992, on the
18 Mount Vlasic. During that massacre, members of the HVO were tortured and
19 killed by Chetniks.
20 This was followed by shootings and an armed attack on Rastovci
21 village, in Novi Travnik municipality, and the person who was attacked was
22 an officer of the Central Bosnia staff, and his co-travellers, in Karaula
23 village, members of the Army of BH shot at the vehicle of the commander of
24 the Jajce HVO. The verbal conflict between the HVO and the BH Army in
25 regarding the petrol station in Novi Travnik during which the local
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Page 13685
1 commander of the BH Army allegedly said, "It is either the petrol station
2 or a war," preceded the killing of the commander of the Travnik Brigade on
3 the Travnik-Vitez road. And the HVO accused the members of the 7th Muslim
4 Brigade of that.
5 The aggravation of the security situation in the Central Bosnia
6 operative zone found regularly reflection through Gornji Vakuf in the
7 border areas of the Northwest Herzegovina operative zone, so that on the
8 21st of October, 1992, the main staff of the Croat Defence Council
9 reported that in Gornji Vakuf and Prozor, the situation was tense and
10 conflict could break out any minute.
11 In relation to this new situation, in a part of the operative
12 zone, all the necessary security measures were undertaken to prevent a
13 clash between the HVO forces and the forces of the armed forces of BiH,
14 especially in Gornji Vakuf and Prozor. Nevertheless the conflict did
15 break out on the 23rd of October and -- ending in the total rout of the
16 local ABiH units. The assertion that the Croat Defence Council has
17 suddenly attacked the units of the Army of Republic of Bosnia-Herzegovina
18 is very bold, but it is based on prejudice. At a meeting of the
19 representatives of the Croat Defence Council and ABiH, held on the 6th of
20 November, 1992, in Jablanica, ABiH representatives accepted the HVO's
21 request to replace their commander of the municipal staff of the Prozor
22 defence, which is a fact which plays quite an important role when one
23 analyses the conflict. Another major problem in the relations between the
24 Croat Defence Council and the Army of Bosnia-Herzegovina is the existence
25 of two parallel political and military structures in the central part of
Page 13686
1 Bosnia and Northwest Herzegovina.
2 It is a reflection of profound mistrust and divergent views on
3 the -- regarding the future of Bosnia-Herzegovina. One of the questions
4 to which historiography should provide the answer, is the amount of effort
5 invested by the SDA and the HDZ to solve the problem. This is well
6 illustrated by sentences voiced by one of the members of the War
7 Presidency of Novi Travnik municipality. The fundamental problem of Novi
8 Travnik, to authorities this is what this presidency member said. "The
9 HVO and ours regular," as is said, "there is collision and conflicts take
10 place and will continue to happen because the president of the government
11 is not admitted into the municipal hall without an ID. It is better to
12 split up rather than fight again. There were different offers to Muslims
13 and Croats to set down -- their government." I'm still quoting this
14 member of the presidency. "We have been trying to provide an equal number
15 of people to the government on a parity basis." End of quote.
16 The problem of dual authority is the crucial problem besetting
17 Croat and Muslim relations in Central Bosnia, the area in which the war
18 escalated. In his analysis of the causes of the conflict in Prozor, the
19 commander of the operative zone of Northwest Herzegovina rightfully
20 concluded that the only preventive measure that could put an end to such
21 conflicts was the prohibition to have two commands, two armies, two
22 logistic services. Along similar lines were thoughts expressed by the
23 commander of the 17th Krajina Brigade of the Army of Bosnia-Herzegovina,
24 who thought that one of the reasons for the failed defence of Jajce was
25 that one and the same town was defended by two commands. I believe
Page 13687
1 indubitably the best unknown attempt to resolve the problem of dual
2 authority was the command of the Minister of the Defence of the Republic
3 of Herzegovina, Bozo Raic, dated 15th of January, 1993, which we saw and
4 heard in this courtroom. Unfortunately, this was a thwarted attempt to
5 define the areas of responsibility and areas of jurisdiction which would
6 have given both sides a very clear picture of where they were. The
7 problem resulted from the conquer, from the territorial conquests by the
8 Serbs and ethnic cleansing, because huge masses of expelled persons and
9 refugees from those areas flowed into the area controlled by the Army of
10 Bosnia-Herzegovina and the HVO, disrupting the ethnic structure and the
11 balance between the members of two different groups, namely the majority
12 of the expelled persons -- and Your Honours, we must be aware of that --
13 came from the rural environment and arrived in towns, into the urban
14 environment, whilst bringing along, as their mental baggage, a completely
15 different way of thinking, and it is not unimportant that towns, of
16 course, had multi-cultural experience and the same would hold true of
17 Mostar but that was not the case in villages. So that in Mostar, not only
18 the ethnic, not only the demographic, but also the traditional, the
19 customary, the balance in customs, was also disrupted.
20 The Prosecution claims that on the 9th of May, 1993, Croat forces
21 launched a major military offensive against the Bosniak Muslim population
22 in the city of Mostar and the positions of the Army of Bosnia and
23 Herzegovina in that town.
24 After the negotiations in Geneva, the political and religious
25 leadership of Bosniaks, Muslims, in Mostar, published the Mostar warning
Page 13688
1 of the 5th of January, 1993, supporting Alija Izetbegovic and rejecting
2 the idea of the confederation. The Muslims of Herzegovina, and this is a
3 quote, "Are on their own turf and everybody should be clear about that,"
4 the letter says. It also says that the Bosniaks and the Muslims are faced
5 with an imperative division of Herzegovina into three ethnic provinces
6 with a Muslim province in the valley of the Neretva River, and it is also
7 said that if need be, all the Muslims will be mobilised. The letter was
8 signed by Zijad Demirovic on behalf of the SDA, Hadzisejdovic mufti efendi
9 Smajkic and lawyer Faruk Cupina president of the Council of Muslims of
10 Herzegovina. And it is as of that day that the tension began to rise and
11 the frequency of conflicts increased.
12 Bosniaks, Muslims, in the town hid a Zolja, which hit a van with
13 HVO soldiers. Arif Pasalic, commander of the army of 4th Corps of the
14 Army of the Republic of Bosnia-Herzegovina, said on the radio that Mostar
15 would be liberated of the non-Muslim populace, which is the strategy of
16 the policy of ethnic and religious cleansing. Following the instructions
17 of the political and military leadership, the Bosniaks, Muslims, began to
18 quit the Croat Defence Council. The soldiers of the HVO are intercepted,
19 harassed, injured. Their personal and the HVO property is seized from
20 them. Fear is sown among the non-Muslim population. Fuel is added to the
21 fire and the discord is sown within the Croats and the Bosniak Muslims who
22 were members of the HVO. The operative plan of attack on West Mostar and
23 its environment is in preparation, the command of the 41st Motorised
24 Brigade, that is the 1st Mostar Brigade, issued the order on the 20th of
25 April, Your Honours, on the 20th of April, 1993, to prepare for operation
Page 13689
1 and that order was signed by Midhat Hujdur as the commander. Pursuant to
2 that order the units of the Army of Bosnia-Herzegovina were to get ready
3 to act in the area of Cekrk, to shut down the axis road to Mostar, to
4 provide support for the units of the 2nd Battalion in the Benka [phoen]
5 secondary school area, the Avenija-Rudnik area and in the parking lot of
6 the Bijeli Brijeg and the Rondo and the faculty. The operative plan of
7 action against targets on the right bank of the Neretva was developed to
8 the minutest detail and we shall prove that. The beginning of the armed
9 conflict, as claimed by the Prosecution, between the army of the Republic
10 of Bosnia-Herzegovina and the HVO [RealTime transcript read in error "HV"]
11 As was 9th of May, 1993, when the Muslim Bosniak forces launched a fierce
12 attack on the barracks of the HVO, Tihomir Misic. The next day, in
13 Zenica, general Sefer Halilovic Commander of the Main Staff of the army of
14 the Republic of Bosnia-Herzegovina announced the final settling of scores
15 with Croats.
16 In the early morning on the 30th of June, 1993, between half past
17 2.00 and 3.00, the true conflict between Bosniaks Muslims and Croats in
18 the Mostar municipality erupted. In the area of Bijelo Polje, Muslims who
19 were members of the Croat Defence Council turned against their former
20 comrades in arms and allies in the resistance to the Serb aggressor and
21 comment my colleagues warn me that it says HV rather than HVO. That is
22 the Croatian Army and it should be the Croat Defence Council.
23 On the front line, facing the Serb aggressor, the Muslim members
24 of the Croat Defence Council, by and large, simply aimed their weapons at
25 Croats, members of the Croat Defence Council. One could hear a voice,
Page 13690
1 "Surrender your weapons, you've been surrounded by the Muslim army,
2 Zuka's men are all around you." Something is wrong with the politics.
3 You'll be released in a couple of days, when this is put right." We are
4 proving this and we shall prove it, Your Honours.
5 I'd like to add, in view of this question, the question of the
6 conflict between the Croats and the Muslims, that modern theologist Hans
7 Koschnik, who researches what is common to the world religions, has been
8 emphasising for years that there is and can be no peace if it is not first
9 established between religions and churches. Until the religions start
10 researching what is common to them all, especially with those who are
11 their neighbours, there will be no true foundation for peace.
12 This Prosecution affirms that during the period under
13 consideration, that is the period of the indictment, the authorities of
14 the Croat Defence Council introduced different forms of persecution of the
15 Bosniak Muslim civilian population. From the point of view of the manner
16 in which we shall present this case, and how we shall go about proving it,
17 we need to say that the crime of persecution needs to be understood
18 narrowly, and our client may be charged only in relation with other crimes
19 falling under the jurisdiction of the International Tribunal. One needs
20 to bear in mind the statute of the international military court and the
21 international military tribunal for the far east, stipulating that the
22 persecution must take place through the commission of other acts in the --
23 under the jurisdiction of these tribunals because everything is indicative
24 of the view expressed in international customary law on this issue. One
25 could also draw the attention to Article 7, item 1, the Roman statute of
Page 13691
1 the international criminal court, specifying that persecution need -- that
2 to show that there was persecution, it needs to be related to other crimes
3 falling under the competence of the international criminal court. In
4 other words, the crime, that is actus reus for the crime of persecution,
5 needs to be related to some other crime specified in the Statute of the
6 ICTY and to prove the extension -- existence of mens rea, the intent, our
7 client had to have committed a crime with the specific intent to deprive
8 the victim drastically of his or her fundamental rights only because he or
9 she belongs to a particular group or community. And clear evidence must
10 exist of such a discriminatory intent. And also the concrete intent but
11 also the general intent that our client, that the accused, was in
12 possession of the objective knowledge about the context within which he
13 acted.
14 The Defence has been proving and will prove and will show with the
15 witnesses we will be calling this week that that is not true, as far as
16 our client is concerned.
17 As for the claim of the Prosecution that Bosnian Muslims were
18 dismissed from their work, both from private and state-owned companies,
19 the Prosecution has not shown any proof that our client Vinko Martinovic
20 has done anything like it, but something like that does not represent
21 persecution as a crime against humanity. I think that now, regardless of
22 the fact that we are all familiar with this notion and that we are deeply
23 involved in it, I think that still, when it comes to my client's treatment
24 in this case, that we need to go into this -- into the notion of ethnic
25 cleansing.
Page 13692
1 The model of warfare, which unfortunately has become typical in
2 modern history, which has become standard, typical model in the
3 present-day warfare, in the history, the history of persecution and
4 phenomenon of ethnic cleansing are typical or ethnic definitions of the
5 state. This notion reflects ideological and linguistic relationship with
6 the Stalinist purges and similarities and kinship with the racist ideology
7 of national socialism. Ethnic cleansing, a term from a dictionary which
8 has not been printed anywhere. It has never been published and yet
9 exists. This definition is bureaucratically held and it seems to suggest
10 sanitation, sanitising measures of an area. It suggests, however, a
11 systematic action and also subsumed planning and execution. Mechanisms of
12 ethnic cleansing are limitless, boundless measures of supervision and
13 control of people from social and bureaucratic discrimination against
14 them, to police measures, to organised physical annihilation, bringing
15 along also conscious abolition, annihilation of human honour. Which of
16 that has the Prosecutor proved in relation to our client? We say nothing.
17 And we shall show with witnesses who will be appearing before this Court,
18 as I have said, this week and especially until our summer recess, we shall
19 prove that the case is reverse.
20 Article 2, common to all the Geneva Conventions, says that this
21 convention shall apply in case of a declared war or any other armed
22 conflict which breaks out between two or more high contracting parties,
23 even if one of them does not recognise the state of war, and if an armed
24 conflict breaks out between two or more states, international humanitarian
25 law will be applied automatically, irrespective of whether the war has
Page 13693
1 been declared or not, and irrespective of whether the parties to the
2 conflict recognise or do not recognise the existence of the state of war.
3 The only prerequisite for the implementation of the international
4 humanitarian law is the fact that there is an armed conflict. The armed
5 conflict, as a definition appears also in Article 3 of the Geneva
6 Conventions, regulating non-international armed conflicts, that is
7 conflicts between governments and rebels and insurgent movements. In case
8 of an armed conflict, conventions are not of much help because they do not
9 provide us with a definition of its meaning. In practice, there are now
10 and then some disagreements regarding the applicability of international
11 humanitarian law to internal conflicts. The only criterion which should
12 be applied should be the intensity of violence and the need to protect its
13 victims. I'm referring to internal conflicts. The problems, however,
14 arise when one of the parties to the conflict denies the application of
15 international humanitarian law, even if the fighting goes on.
16 For instance, it does happen that a state considers an area which
17 is occupied as its own and leaves the question of the application of
18 Geneva law open. In other cases, units of a state simply march into the
19 territory of another state and appoint a new government. These puppet
20 governments then proclaim that these foreign units have extended friendly
21 assistance and acted with the government's consent, even though this
22 government was formed only ex post. Is this then an intervention
23 following an invitation or occupation? How is one to apply international
24 humanitarian law? Through resolutions of the Security Council or should
25 we have third countries bring pressure on it? All the provisions of the
Page 13694
1 Geneva Conventions are contingent on two ideas, a combatant and a
2 protected person but they are not mutually exclusive.
3 So a combatant may become a protected person when he has been
4 wounded, when he surrenders or becomes a prisoner of war, without,
5 however, losing his combatant status. Additional Protocol 1 defines the
6 notion, it is Article 3, members of the armed forces of the -- of a party
7 to the conflict are combatants, combatants have the right to participate
8 directly in hostilities. It is no coincidence, Your Honours, that I
9 mention this in my opening statement because only combatants and
10 combatants alone are allowed to participate in hostilities. A combatant
11 is the only one who has the right to fight, who is entitled to use force
12 or even kill, and he will not be held personally responsible for it, as he
13 would be if he committed the same act as an ordinary citizen. However, a
14 combatant nevertheless does not enjoy full freedom of action because of
15 the means and methods he may use in waging a war are limited, are
16 restricted by international law, and it is these restrictions which are
17 the subject of international humanitarian law and especially the
18 provisions relative in particular to the two warfare which are also known
19 as The Hague law.
20 A protected person is any person entitled to special protection.
21 The Geneva law distinguishes between the wounded, sick, ship wrecked of
22 the armed forces and then civilians, prisoners of war, civilian internees,
23 civilians in the enemy territory and civilians in occupied areas. These
24 notions only apply within the rules relative to international armed
25 conflicts. In international armed conflicts, privilege status not
Page 13695
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Page 13696
1 recognised to anyone participating in the hostilities nor is there any
2 distinction between the categories of protected persons. It simply
3 distinguishes between those who use force and those who do not use it or
4 are no longer in a position to use it, such as the wounded, sick,
5 prisoners, population who does not participate in the fighting.
6 In order to draw the attention of the Honourable Court to what the
7 Defence is trying to prove, and that is that in Bosnia and Herzegovina,
8 and especially in Herzegovina, in Mostar, that is, there was no
9 international armed conflict, I must point out the difference between an
10 international armed conflict and a civil war.
11 A simple definition of a civil war is that it is an armed conflict
12 which takes place in the territory of one state, between the main party on
13 the one hand and the rebel party on the other hand. It is the case of a
14 breakdown of the system of government in a country, in a state, which
15 leads to the fighting between different contestants in the fight for
16 power. Article 2 of the Geneva Conventions from 1949 on non-international
17 armed conflicts, and its additional Protocol number 2, Article 1 of
18 the Geneva Conventions from the 8th of June, 1977, is applicable always
19 when the conflict between the government and the rebels takes place by
20 means of systemic hostilities and the use of armed force. This can be
21 found in the commentary published under the general editors, by Jean
22 Piquetet, 4th Convention, Article 3, pages 35 to 36.
23 Protocol 2, additionally explains that internal tensions and
24 conflicts, rebellions, isolated and sporadic acts of violence and other
25 acts of similar natures, themselves do not represent armed conflicts, and
Page 13697
1 therefore, cannot be subject to international humanitarian law. The
2 international humanitarian law distinguishes between two types of civil
3 wars: A non-international armed conflict of a high intensity, that is
4 Article 3, and Protocol 2, and other internal conflicts which are subject
5 exclusively to Article 3.
6 If there is an internal conflict, there is no legal foundation for
7 the application of the Geneva Conventions on the protection of war
8 victims. This rule has already been applied in the Tadic case before this
9 Tribunal. The key question is imposed here, and we are proving this in
10 our case. The first question is: How to treat the forces of the BH
11 Army? The question is whether these forces -- and they were a party in
12 the conflict -- and the question is whether these forces were the legal
13 armed forces of the state of Bosnia and Herzegovina. The answer is yes.
14 The answer is positive. The second question that imposes itself is the
15 following: Was the HVO the other party in the conflict, and whether it
16 was a legal armed force of BH? The answer is yes. The answer is
17 positive.
18 The third key question is: In the time relevant according to the
19 indictment, were the victims, the alleged victims, of the crimes, were the
20 citizens of Bosnia and Herzegovina? The answer again is positive. The
21 answer is yes. If the answer to all the three questions is positive,
22 then, Your Honours, it is impossible to implement the 4th Geneva
23 Conventions. It's Article 4 which says, "This convention protects those
24 persons who, at any time, in any way, find themselves, during a conflict
25 or an occupation, in the hands of the party to the conflict whose citizens
Page 13698
1 they are not." In this case, they were the citizens of the army that
2 belonged to the party in conflict. In this case, there was no occupation
3 because occupation consists in the partial or total occupation of the
4 territory of another state by means of an armed force. But in order to
5 treat an occupation of a territory as a war occupation, according to the
6 international law, that territory has to be really subjugated to the
7 authority of the hostile army, of the enemy army. So if we go back to the
8 three questions, we do not have an answer to that. For a territory to be
9 considered occupied, there should be a power established and capable of
10 maintaining itself under the enemy force, the enemy army.
11 There are no, almost no, civil wars which in one way or another
12 are not connected with international events, and only a few of them, in
13 the past century, were fought so to say behind closed doors. The impact
14 of a third state can have different forms and can go -- and can extend to
15 unarmed intervention. An international conflict then becomes a so-called
16 advocate war, which is very often waged in the interests of external
17 forces. Michael B. Agenhurst [phoen] wrote about that in his publication,
18 "Civil War," in the Encyclopaedia of International Law, number 3,
19 published in 1982, on pages 88 to 93.
20 Civil war becomes an internationalised by still non-international
21 armed conflict, poses before the international humanitarian law some very
22 peculiar problems. This has been mentioned by Hans Peter Gasser [phoen]
23 in his work, "Internationalised non-international armed conflict, case
24 studies of Afghanistan, Kampuchea and Lebanon." In 33, The American
25 University Law Review, published in 1983, particularly on pages 145 to
Page 13699
1 161.
2 If a state proclaims the state of war, the situation is
3 considerably different. Bosnia and Herzegovina did proclaim the state of
4 war, Your Honours. So the war was between Bosnia and Herzegovina on the
5 one hand and the Serbian aggressor on the other hand. Persons under
6 the -- in the power of the enemy are at the same time the citizens of the
7 one and same state, the state of Bosnia and Herzegovina, and that, Your
8 Honours, is the problem that needs to be solved. It seems that the
9 intention of the Prosecutor was to show that at the beginning of 1993, due
10 to the operations of the HVO, a confrontation with the BH Army was
11 inevitable.
12 The period between April and January, 1993, is the period of
13 military and political tensions between the HVO and the Army of Bosnia and
14 Herzegovina, that is between the HDZ and the SDA. During that time, there
15 were some failed attempts to move the relations from the stalemate
16 position, all these attempts were initiated by the Republic of Croatia.
17 Before any final judgement, we have to take into consideration some of the
18 characteristics of the events that took place between January, 1993, and
19 the end of 1995. The three constituent peoples in Bosnia-Herzegovina.
20 How to treat the fact that from the very beginning of the war, one of
21 these peoples had an intention to break the state, break up the state, and
22 how to treat the fact that two out of the three constituent people asked
23 for the same, at the same time. If the three constituent peoples wage a
24 war between themselves at the same time, the issue of the civil war is
25 rightfully raised. How to determine the modality of intervention of the
Page 13700
1 neighbouring states, neighbouring states, beyond their state borders?
2 Croatia is perceived as a state which carried out an aggression when it
3 helped the HVO by logistics and by troops. In some moments of the war,
4 Croatia provided logistical support, both to the HVO and the Army of
5 Bosnia and Herzegovina, allowing the establishment of its units in its
6 terrain. And the first voluntary regiment, Kralj Tomislav, even formally
7 made a strength of the BH Army, i.e. the Territorial Defence, from the
8 point of view of the Army of Republika Srpska, it is an aggression. From
9 the points of view of the HVO, this can be held against Croatia as well as
10 the -- on the example of the Muslim sacred warriors which the majority
11 of -- which came to the majority of the territory BH, via the Republic of
12 Croatia. We can also raise the issue of the aggression of Croatia in
13 Bosnia and Herzegovina. For example, in the summer of 1992 during the
14 fights for the corridor in Bosnian Posavina when the units of Bosnian
15 Serbs, who were reinforced by the rebel Croat Serbs of the Republic of
16 Serbian Krajina. What was the role of the international community? What
17 is the meaning of the resolution 713 of the Security Council of the United
18 Nations on the embargo, on the arms embargo for all the republics of the
19 former socialist Federative Republic of Yugoslavia? Does it entail the
20 moral responsibility, does it represent an expression or the form of
21 helping the best armed party, that was the Army of Republika Srpska? Does
22 it mean that the world, i.e. the great forces, from the point of view of
23 the HVO and the BH Army, participated in the war on the side of the Army
24 of Republika Srpska, in the war against the two other constituent peoples?
25 That it gave its contribution towards the way the war was waged? When the
Page 13701
1 world accepted the reality, the situation on the ground, did it not lay
2 the foundation for the division of Bosnia and Herzegovina? This is a
3 group of questions without any answers, and this group of questions also
4 involves the visit of the late president of the Republic of France, who
5 visited the protected UN areas.
6 Your Honours, was there a war against Bosnia and Herzegovina or
7 was there a war in Bosnia and Herzegovina? If we accept the statement
8 that it was a war against Bosnia and Herzegovina, would it not mean that
9 one people was more constituent than the other two? That means that the
10 Republic of Croatia and the Federal Republic of Yugoslavia are
11 equalised. That means that we forget that the Republic of Croatia and
12 Bosnia and Herzegovina had a common theatre of war in the area of Bihac,
13 and therefore the position of Croatia is considerably different than the
14 position of Yugoslavia towards Bosnia and Herzegovina, and what about the
15 honourable or non-honourable role of the UN Security Council and the
16 international community, whose shadow, like a nightmare lies over the
17 ruins of Bosnia and Herzegovina and Croatia?
18 We believe that the war in Bosnia and Herzegovina was a war
19 against Bosnia-Herzegovina, but also a war in Bosnia and Herzegovina.
20 This was sanctioned by the international community as well. The Army of
21 Republika Srpska, while trying to occupy, as big a territory as possible,
22 committed ethnic cleansing and crimes of major proportions. The armed
23 forces of the other two constituent peoples in the area committed a lot
24 less. However, there is an intention, a visible intention, to equalise
25 the HVO with the Army of Republika Srpska, and this would provide amnesty
Page 13702
1 for the Army of Bosnia-Herzegovina. This is not corroborated by any
2 facts. The Croatian Defence Council and the Army of Bosnia-Herzegovina
3 had some common traits. They waged a war against two other constituent
4 peoples, the break-up of the territorial integrity of the state, help from
5 abroad, ethnic cleansing, the destruction of the enemy property,
6 concentration camps, and committed war crimes. Is the generally accepted
7 advantage, so to say, of the Army of Bosnia-Herzegovina over the Croatian
8 Defence Council only in its name?
9 Furthermore, the Prosecutor claims that throughout the entire
10 relevant period, the Army of the Republic of Croatia, that is the HV,
11 supported the HVO, by sending its units to Mostar and other municipalities
12 of Bosnia and Herzegovina. There were no HV units in Herzegovina and in
13 Mostar. This is shown by documents. This is witnessed by witnesses.
14 There are many persons who returned to their native Herzegovina and Bosnia
15 to wage war against the Serbian aggressor who were previously members of
16 the Croatian Army, of the HV. But there were no organised units of the
17 HVO in Bosnia and Herzegovina, except for those which were in agreement
18 with the Split agreement between Izetbegovic and Tudjman which was made in
19 1992 in July. We have proven that, our witnesses have testified to that
20 effect, and they will continue to testify to that effect.
21 The 3rd Geneva Conventions, Article 3 -- 13, is about war,
22 prisoners of wars. At all times, they should be treated humanely.
23 Prisoners of war are members of the armed forces of one of the warring
24 parties who fell into the hands of the enemy party during an international
25 armed conflict. During their detention, they retain the legal status of
Page 13703
1 members of the armed force. The healthy war prisoners can be asked to
2 work, but they should not be sent to work in dangerous areas unless they
3 volunteer. According to the 4th Geneva Convention and the Additional
4 Protocol, civilians are all those who are not members of armed forces.
5 They cannot participate in hostilities. If they do so, they have to be
6 aware that they lose protection, and that force may be used against them.
7 The 4th Convention forbids -- puts a ban on the use of civilians
8 as human shield, in order to protect some areas or troops from an enemy
9 attack. Under -- in some circumstances, protected civilians may be
10 detained. The legal position of the detainees, which is mentioned in the
11 4th paragraph, and the treatment of these people is regulated by the
12 notion of a civilian, and as for the notion of the combatant, I don't want
13 to go into any greater details. The prohibited methods of combat are
14 prohibited and the -- and the combatants have to treat the enemies as
15 human beings. The fair behaviour is in agreement with the -- with the
16 rules of war. The enemy can be deceived by camouflage, the use of false
17 operations and misinformation, which we have had the opportunity to hear
18 and we shall hear again during this procedure. According to Article 51,
19 of the diplomatic conference and Article 48 of Protocol 1, civilian
20 population or individuals cannot be the object of attack.
21 The Prosecutor claims that the subunits of the Convicts Battalion
22 attacked Bosnian Muslim population, civilian population, in the areas
23 under the occupation of the HVO and the HV, and that they participated in
24 the operations of the so-called ethnic cleansing. That the units --
25 subunits of the Convicts Battalion acted, either as part of the troops of
Page 13704
1 the HVO and HV, or in the coordination -- in coordination with those
2 armies.
3 The subunits of the Convicts Battalion are members of the HVO and
4 acted together with them. Wherever there were HV units on the Bulevar,
5 and that Vinko Martinovic collaborated with them or coordinated his
6 activities in the operations of ethnic cleansing, the Prosecution has not
7 provided any evidence to that effect, and throughout the presentation of
8 the Defence evidence, the Defence is going to prove that the -- the fact
9 that the truth is contrary, Vinko Martinovic actively supported the
10 nationalist ideas of Bosnian Croats. This is what the Defence claims, and
11 very soon, you will hear that the Vinko Martinovic, are -- our witnesses
12 protected. I would like to mention their names but I can't. And you will
13 hear from them that not for a single moment, Vinko Martinovic had a
14 discriminationally intention and many witnesses will corroborate to that
15 fact. The Prosecution also claims that throughout the relevant time,
16 Vinko Martinovic had an effective and direct control over the members of
17 his unit. The Defence refutes that allegation. Article 7 of the Statute
18 says, "The person who has planned, ordered or committed or in any other
19 way assisted or supported the planning, preparation or the perpetration of
20 a crime mentioned in Articles 2 to 5 of this Statute is individually
21 responsible for a crime." In Article -- in paragraph 3, it says, "The
22 fact that some of the acts mentioned in Articles 2 to 5 of this Statute
23 was committed by a subordinate person does not exculpate the superior of
24 the criminal responsibilities if the superior knew or if there was the
25 reason -- a reason for him to know that the subordinate person was
Page 13705
1 prepared, getting ready to commit such a crime or that he has already
2 committed them, and the superior has not undertaken the necessary and
3 reasonable measures to prevent the perpetration of such a crime." It is
4 clear that the purpose of Article 7 is to ascribe individual criminal
5 responsibility at different levels. For crimes mentioned in Articles 2 to
6 5 of the statute. Article 7 implements the general principle of the
7 criminal law that an individual is responsible for his crimes and for his
8 acts and commissions. This Article prescribes that is an individual may
9 be held responsible for a crime or for an omission to punish the crime
10 committed by a subordinate person.
11 Article 7, paragraph 3, of the Statute, lays down the principle
12 which regulates the responsibility of the superiors, which is very often
13 referred to as command responsibility. Some of the legal issues which
14 rise in connection with Article 7 paragraph 1 and Article 7 paragraph 3
15 are considered in -- have been considered in other cases before this
16 International Tribunal. This Trial Chamber, I assume, is not going to
17 consider them again.
18 One has to emphasise the different nature of criminal
19 responsibility envisaged by Article 7 paragraph 1 and Article 7 paragraph
20 3, especially in connection with superiors, which is the most interesting
21 point for this defence. Article 7, paragraph 1, is relative to the
22 persons which are directly responsible for the planning, ordering, or
23 commission or assisting and supporting in a crime. Article 7 paragraph 1
24 covers those persons who personally engage in illegal activities and
25 superior who does not participate in the commission of the crime directly
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Page 13707
1 but has ordered it or instigated such a crime. For example, a person who
2 orders a killing of a civilian person can be considered responsible in
3 accordance with Article 7 paragraph 1, as is the case with the political
4 leader who plans the execution of certain civilians or a group of
5 civilians and then puts a military commander to the commission of that
6 crime. The criminal responsibility of such persons, be it a military or
7 civilians, under such circumstances, is their personal, direct
8 responsibility, and is the result of their immediate connection with the
9 physical commission of the crime.
10 It can be said that the criminal responsibility of the superior
11 person for such concrete acts can be considered primarily responsible for
12 the commission of such acts, which arises from the general principles of
13 the responsibility of the participants. The general secretary in his
14 report describes a command responsibility as it has been prescribed by
15 Article 7 paragraph 3 of the Statute. I'm not going to quote because I
16 believe that the Trial Chamber is familiar with this Article.
17 Article 7 paragraph 1 says that the person who planned,
18 instigated, ordered, committed or otherwise aided and abetted in the
19 planning, preparation or execution of a crime shall be considered
20 individually responsible for the crime. The principle that an individual
21 can be held responsible for the planning, instigation, ordering,
22 commission or abetting in the crime firmly is -- is firmly based on the
23 international customary law. Article 7, paragraph 1, reflects the
24 principle of the criminal law according to which the criminal
25 responsibility is not ascribed only to those individuals who physically
Page 13708
1 committed a crime but it can also be extended to those who in different
2 ways participate or abet in the crime and in -- when this participation is
3 sufficiently connected with the crime, in keeping with the principles of
4 responsibility for being an accomplice in a crime.
5 Different aspects of participation in a crime can be divided into
6 the main participants and their collaborators. Therefore, the meaning of
7 Article 7 paragraph 1 is to ensure that all those who participate directly
8 in the commission of the crime or -- are held responsible.
9 Mr. President, I need another half an hour or so. Now it is
10 7.00. I do not know whether you want me to go on and thus finish my part
11 or should I resume tomorrow? I'm at your disposal.
12 JUDGE LIU: Well, altogether how long the opening statement will
13 last? Including the parts by Mr. Par?
14 MR. PAR: [Interpretation] Your Honour, I will need about one hour,
15 not more than that. I think it is within the time allotted to us. Today
16 we had the whole day and we intend to call our first witness today. Of
17 course we are aware of your concern regarding the time, but we think that
18 there is no real reason for it. We have envisaged to complete our case as
19 we have announced, that our witnesses will not take more than a day each,
20 or we think that on the average we do have a witness and a half per day.
21 The first witness, the introductory one may take a little longer, but
22 others, they will be all testifying to facts. No reason for them to take
23 too much time. You said we should finish by the end of September and we
24 shall do that. There is no reason for any concern regarding the time and
25 please allow us to organise our Defence in a manner we have already
Page 13709
1 announced. Thank you.
2 JUDGE LIU: Yes. I understand that different legal systems have
3 different ideas concerning the opening statement. In my jurisdiction,
4 generally speaking, in the opening statement, the party should not touch
5 upon the legal issues, while in the closing argument, the legal issues
6 will be brought up at that stage. But anyway, I hope you could reorganise
7 your opening statement overnight and we will try to finish it during the
8 first sitting tomorrow afternoon.
9 So we'll resume at 2.15 tomorrow afternoon.
10 --- Whereupon the hearing adjourned at
11 7.04 p.m., to be reconvened on Tuesday,
12 the 16th day of July, 2002, at 2.15 p.m.
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