Internationale Criminal Tribunal for the Former

Case No IT-95-14/1

  1. 1 Tuesday, 6th January 1998

    2 (10.10 am)

    3 JUDGE RODRIGUES: Good morning, ladies and gentlemen. Happy

    4 new year to everybody. We are going to begin the

    5 Aleksovski trial and ask now that the Registrar tell us

    6 the case number.

    7 THE REGISTRAR: This is case number IT-95-14/1-T, the

    8 Prosecutor versus Zlatko Aleksovski.

    9 JUDGE RODRIGUES: Thank you. We can now begin, and begin by

    10 the opening statement, if the Prosecutor wishes to make

    11 one.

    12 MR. NIEMANN: If your Honours please. Your Honours, this

    13 Prosecution concerns a violation of the laws and customs

    14 of war and the grave breaches of the Geneva Conventions

    15 of 1949, perpetrated by the accused, Zlatko Aleksovski.

    16 The crimes are alleged to have been committed in the

    17 Kaonik prison in the Lasva Valley area of the Republic

    18 of Bosnia-Herzegovina between January and May 1993.

    19 During this time, the forces of the former allies, the

    20 Bosnian Croats, the HVO, backed by forces of the

    21 Republic of Croatia, the HV, engaged in open conflict

    22 with forces of the Republic of Bosnia-Herzegovina, the

    23 BiH.

    24 Zlatko Aleksovski was the commander of the Kaonik

    25 prison, which was used to detain persons, mostly of

  2. 1 Muslim ethnicity, from villages such as Jelinak,

    2 Loncari, Strane, Skradno in the Lasva Valley area, which

    3 were displaced as a result of the conflict. In order to

    4 assist your Honours to better understand the case,

    5 I will illustrate on the television monitors some

    6 material that will be tendered as evidence in these

    7 proceedings, which will indicate some of the more

    8 important geographical locations relevant to this case.

    9 We have a series of those maps which can be shown on the

    10 screen, and if it pleases your Honours, I might go to

    11 those maps now, so that when I speak of these places,

    12 your Honours will have a better understanding as to the

    13 places where I refer.

    14 If your Honours could look at your screen now on

    15 the video monitor, the first map that I would ask to be

    16 displayed is map numbered A1/1. Your Honours, this is a

    17 map of Bosnia-Herzegovina, and it is divided into the

    18 relevant opstinas. The opstina is a word meaning

    19 "municipality", and Bosnia-Herzegovina was divided into

    20 various municipalities. In the centre of these

    21 municipalities -- in the centre of this map are the

    22 three main municipalities which relate to the events of

    23 this case, and they are the municipalities of Vitez,

    24 Busovaca and Zenica.

    25 If we can look at a blown-up version of those

  3. 1 three opstinas, we can see them now, your Honours, more

    2 clearly. In the very centre of the map, your Honours

    3 can see the opstina of Vitez, Busovaca, Zenica and to

    4 some extent you may hear spoken of the surrounding

    5 opstinas of Travnik, Novi Travnik in the course of the

    6 evidence.

    7 Your Honours, in addition to opstinas named, there

    8 is also a reference in these maps to the main cities of

    9 the opstinas and those cities bear the same name as the

    10 opstinas themselves, so in Zenica you have the city of

    11 Zenica, which is one of the largest cities in the

    12 region; you have Vitez in the opstina of Vitez, and

    13 Busovaca in that relevant opstina as well.

    14 Your Honours, the Lasva Valley runs through --

    15 primarily through the three opstinas of Vitez, Busovaca

    16 and it joins the Bosna River which then proceeds to run

    17 up through Zenica. If we could look at the next map,

    18 your Honours, that appears on the screen, A1/4, this,

    19 your Honours, is a map of the region, and if we can zoom

    20 in please on firstly the cities in the centre of the map

    21 of Strane, your Honours can see villages can be - if we

    22 have a better view of that, if we could mark the

    23 villages of Strane, it is towards the centre of the

    24 map. Your Honours can see that village. Then to the

    25 top of the map, the village of Loncari, right at the

  4. 1 very top, the village of Jelinak, which is below that,

    2 Skradno, which is directly below Strane, and the little

    3 place of Kaonik, which is next to Strane.

    4 These are villages where people were captured and

    5 then subsequently imprisoned in the Kaonik prison.

    6 Through the centre of the map that now appears on

    7 your Honours' screen runs the Lasva River and it is

    8 hence the Lasva Valley. It runs down to a little place

    9 called Luke, which is now being shown on the screen, and

    10 that, your Honours, is where that river, the Lasva

    11 River, joins the Bosna River.

    12 This case, your Honours, is about the unlawful

    13 treatment of Bosnian Muslim detainees. While detained

    14 at Kaonik, prisoners under the command of the accused,

    15 Zlatko Aleksovski, many of the Muslim civilians and

    16 captured Muslim combatants, were subjected by prison

    17 guards and the HVO to treatment which amounted to an

    18 outrage upon their human dignity. The treatment was

    19 inhumane and included being kept in cramped and

    20 overcrowded facilities, being provided with inadequate

    21 food or water, being provided with inadequate or no

    22 medical treatment for the infirm or wounded, being

    23 subjected to physical or psychological abuse and

    24 intimidation; repeatedly being forced to dig trenches

    25 for the military forces, the HVO, at numerous and

  5. 1 diverse locations, at or near lines of confrontation

    2 between the HVO and the army of Bosnia-Herzegovina,

    3 thereby subjecting such detainees to death, injury,

    4 mental and physical harm; being subjected to use as

    5 human shields at diverse locations in the Lasva Valley

    6 area in order to protect HVO military installations or

    7 troops from forces hostile to the HVO and some being

    8 shot or beaten to death by the HVO.

    9 The Kaonik prison was a former JNA barracks,

    10 captured in the early part of the war. Your Honours, a

    11 photograph now appearing on the monitor is an aerial

    12 photograph taken of the Kaonik prison, and it is

    13 numbered A1/5. Your Honours, we will come back to this

    14 photograph in the course of the evidence, but it is in

    15 the centre of the screen that now appears.

    16 Your Honours, the Prosecution will show that

    17 members of the civilian population of the villages were

    18 imprisoned unlawfully and that many of these persons,

    19 once detained, along with those who were prisoners of

    20 war, were beaten and abused in Kaonik detention centre.

    21 The unlawful imprisonment of civilians, the beatings and

    22 torture and inhumane treatment, the forcible use of

    23 civilians for digging trenches and as human shields, the

    24 mental and physical abuse and anguish inflicted on the

    25 detained persons who were at all times protected by

  6. 1 international humanitarian law, are the central focus of

    2 this indictment.

    3 The underlying conflict of the parties of the

    4 former Yugoslavia, the origin of the tragic hostilities

    5 among these nationalities of that unfortunate country

    6 and more specifically the HVO attacks on the Muslim

    7 population in the Lasva Valley area between January and

    8 May 1993, and the general harassment of Muslim

    9 population prior to Muslim civilians being rounded up

    10 and forcibly transferred to detention centres such as

    11 Kaonik are the background to the trial.

    12 To illustrate the Lasva Valley area that led to

    13 the incarceration in Kaonik prison of members of the

    14 Muslim population in the surrounding villages and to

    15 facilitate an understanding of why it happened, the

    16 Prosecution will bring during the course of the

    17 proceedings an expert witness. At this juncture,

    18 your Honours, I would like to briefly review the

    19 background before concentrating on Kaonik prison and the

    20 accused Zlatko Aleksovski's specific culpability in

    21 relation to Muslim detainees at the prison.

    22 The former Yugoslavia, comprising of six republics

    23 and two autonomous regions, due to nationalistic

    24 tensions, disintegrated rapidly to culminate in the

    25 tumultuous social and political events of the late 1980s

  7. 1 and 1990s. Four of the republics, Croatia,

    2 Bosnia-Herzegovina, Slovenia and Macedonia declared

    3 their independence, which was resisted vehemently by the

    4 Federal Republic of Yugoslavia, giving rise to bloody

    5 wars in Croatia and Bosnia-Herzegovina in particular.

    6 In Bosnia, the parties to the conflict were generally

    7 but not exclusively divided along ethnic lines. The

    8 Bosnian Serbs under the leadership of Radovan Karadzic

    9 and General Ratko Mladic sought to cleave out an

    10 independent entity known as the Republika Srpska. The

    11 Bosnian Serbs were supported in this endeavour by the

    12 Socialist Federal Republic of Yugoslavia and its army,

    13 the People's Army of Yugoslavia, the JNA.

    14 Although the JNA was allegedly withdrawn under

    15 mounting pressure from Bosnia on 19th May 1992, this

    16 withdrawal was more show than substance, because

    17 Belgrade continued to support the VRS, the army of the

    18 Republic of Srpska with arms, munitions and supplies.

    19 It was the possession of these superior arms that the

    20 war machine of the JNA inherited by the VRS that gave

    21 the Bosnian Serbs a decided advantage at the outset of

    22 the war in Bosnia-Herzegovina.

    23 The Bosnian Serbs were opposed initially in unison

    24 by the Bosnian Croats and the Bosnian Muslims, who were

    25 under the direction of the central government located in

  8. 1 Sarajevo. Because the Bosnian government was taken by

    2 surprise and because the Bosnian Serbs had superior

    3 armaments, the Bosnian Serbs made impressive territorial

    4 gains in Bosnia and took control over large swathes of

    5 territory. The Bosnian Croats, dissatisfied with the

    6 Bosnian government's weak response to the Serbian

    7 aggression, responded in 1991 by creating the Croatian

    8 Community of Herceg-Bosna, a quasi state with its

    9 military component the HVO, the Croatian Defence

    10 Council, ostensibly for the defence of Croat interests.

    11 Your Honours, our evidence will show that the

    12 Bosnian Croats were provided with significant logistical

    13 and manpower support, political direction and diplomatic

    14 backing in their efforts. While the Bosnian Croats

    15 initially allied themselves with the forces of the

    16 central government to resist the Serbian onslaught, this

    17 alliance was short-lived and soon war ensued between the

    18 allies.

    19 The Lasva Valley Region is located in Central

    20 Bosnia, approximately 50 kilometres north west of

    21 Sarajevo and stretches over the municipalities of

    22 Travnik, Vitez and Busovaca. In addition the area in

    23 question includes Novi Travnik. Before the events that

    24 occurred in the period from January to April 1993, the

    25 HVO had joint military control with the army of

  9. 1 Bosnia-Herzegovina over the Lasva Valley. However, in

    2 April 1993 virtually all Bosnia-Herzegovina forces in

    3 the region were moved to the Bosnian Serb front-lines.

    4 The western front-line was 8 kilometres north west of

    5 Travnik, and the eastern front-line was immediately north

    6 east of Kiseljak.

    7 The HVO forces had a large extent of freedom of

    8 movement behind the lines. As a result of the

    9 co-ordinated attacks on 16th April 1993, the HVO

    10 acquired military control over the Lasva Valley. Units

    11 of the HVO were deployed in a series of attacks on the

    12 Muslim civilian population in the municipalities of

    13 Vitez, Busovaca, from January through May of 1993. The

    14 attacks were planned, widespread and systematic. The

    15 HVO units involved in the attacks were structured by the

    16 principle of unity of command and obligation to carry

    17 out decisions, commands and orders of superior

    18 commanders.

    19 Beginning in May 1992, HVO forces gradually and

    20 systematically took control of the political, economic

    21 and military power of the municipalities of Vitez and

    22 Busovaca, by means of threats, intimidation and assaults

    23 on Muslim persons and their property. They established

    24 HVO municipal leadership in Busovaca in May 1992, in

    25 Vitez in the fall of 1992, and in Novi Travnik in

  10. 1 October 1992.

    2 In January 1993, HVO soldiers systematically

    3 rounded up the remaining Muslim population in the town

    4 of Busovaca and the surrounding villages of Kacuni,

    5 Merdani and Strane, which towns were mentioned earlier

    6 and shown on those maps, your Honours. Muslim

    7 businesses were destroyed and Muslim men were killed.

    8 Hundreds of Muslim civilians were detained in the Kaonik

    9 prison. Some were interrogated, some were beaten, some

    10 were taken to dig trenches and others were used as human

    11 shields. The Muslim civilians left in the area were

    12 continuously harassed from January through May 1993.

    13 Many Muslims were forced out of their homes and were

    14 arrested, and others were killed.

    15 The accused, Zlatko Aleksovski, was an official of

    16 the Zenica prison from 23rd February 1987, until leaving

    17 to be commander, director of the Kaonik prison near

    18 Busovaca towards the end of January 1993. At the same

    19 time the HVO arrested and confined hundreds of Muslim

    20 civilians from Busovaca in the Kaonik prison. Some of

    21 the detainees taken to dig trenches were mistreated at

    22 that time.

    23 It is the Prosecution case that Zlatko Aleksovski

    24 knew that detainees were being used as human shields.

    25 Being in charge of the prison, he was in a position of

  11. 1 superiority to everyone else in the prison. As prison

    2 commander, he met with international officials and

    3 provided them with lists of detained persons and

    4 acknowledged his position as commander, director of the

    5 facility and of his understanding of the Geneva

    6 Conventions in relation to the detention and treatment

    7 of detainees in his charge.

    8 He freely admitted his knowledge that civilians

    9 were being sent to dig trenches when questioned by

    10 international officials. On January 1993, HVO soldiers

    11 arrested civilian males in the village of Ocenici.

    12 Eventually these and other arrested civilians were taken

    13 to Kaonik prison for detention. Although one prisoner

    14 received medical attention for injuries inflicted during

    15 his arrest, other prisoners could be heard screaming as

    16 a result of being beaten. Beatings and mistreatment

    17 also took place while Zlatko Aleksovski was still in

    18 command of Kaonik after selected civilian detainees

    19 arrived at Kaonik from Vitez municipality in May 1993.

    20 These detainees had been moved from the detention

    21 facility in Vitez.

    22 The attacks against the Muslim civilian population

    23 in Busovaca continued throughout the period from January

    24 1993 to May 1993. Male civilians were rounded up and

    25 taken to Kaonik for detention, where they were subjected

  12. 1 to inhumane conditions and mental and physical abuse.

    2 Turning now, your Honours, to the charges, the

    3 accused, Zlatko Aleksovski, a native Bosnian Croat, and

    4 commander of the Kaonik prison, was required to abide by

    5 the mandate of the laws and customs governing the

    6 conduct of wars, including the Geneva Conventions of

    7 1949. However, Aleksovski, between January and May

    8 1993, individually and in concert with others, planned,

    9 instigated, ordered or otherwise aided and abetted in

    10 the planning, preparation or execution of the unlawful

    11 treatment of Bosnian Muslim detainees in the Lasva

    12 Valley area of the Republic of Bosnia-Herzegovina.

    13 Your Honours, Zlatko Aleksovski's responsibility

    14 for the crimes against identified persons could arise

    15 not only from his direct participation in such crimes,

    16 dealt with by Article 7(1) of the Statute, but also by

    17 virtue of his position of authority, where the evidence

    18 suggests not a direct involvement but a failure to

    19 prevent such crimes. The latter principle of individual

    20 responsibility for omission long recognised under

    21 international criminal law is reaffirmed by Article 7(3)

    22 of the Statute of the Tribunal.

    23 By these acts and omissions, Zlatko Aleksovski

    24 committed grave breaches under Count 8 of the Geneva

    25 Conventions as recognised by Article 2(B), inhumane

  13. 1 treatment, under 7(1) and 7(3) of the Statute of the

    2 Tribunal. The elements of inhumane treatment are that

    3 the offender, with intent, committed a specified act or

    4 omission that caused the physical, intellectual or moral

    5 integrity of the victim to be impaired, or caused the

    6 victim to suffer indignity, pain or suffering out of

    7 proportion to the treatment expected of one human being

    8 to another.

    9 Count 9, grave breach as recognised by Article

    10 2(C), wilfully causing great suffering or serious injury

    11 to body or health, under liabilities under Article 7(1)

    12 and 7(3) of the Statute of the Tribunal. The elements

    13 of wilfully causing great suffering or serious injury to

    14 body or health are that the offender with intent

    15 committed a specified act or omission upon a protected

    16 person which resulted in the victim being seriously

    17 injured or being subjected to great suffering.

    18 Count 10, a violation of the laws or customs of

    19 war, outrages on the personal dignity, as recognised by

    20 Article 3 of the Statute and under Article 7(1), 7(3) of

    21 the Statute. The elements of unlawfully inflicting

    22 outrages upon the personal dignity of the victim are

    23 that the offender committed an act or omission with the

    24 intention of unlawfully subjecting the victim to

    25 humiliating or degrading treatment. The theory of

  14. 1 liability under Article 7(1) and 7(3) will be discussed

    2 momentarily.

    3 Your Honours, the Appeal Chamber in the Tadic has

    4 decided that Article 2 of the Statute of the Tribunal

    5 only applies to offences committed within the context of

    6 international conflict. We will provide evidence that

    7 shows that an international armed conflict between

    8 Bosnia-Herzegovina and Croatia existed during the period

    9 of time when the offences referred to in the indictment

    10 are alleged to have been committed.

    11 Then furthermore, our evidence will demonstrate

    12 that the victims of the alleged offences were, for the

    13 purposes of the grave breach provisions of the Geneva

    14 Conventions, protected persons linked to the Bosnian

    15 side of the conflict, while the alleged perpetrators had

    16 a nexus with the Bosnian Croat authorities and the

    17 Bosnian Croat entity was in fact linked to Croatia.

    18 The alleged offences are grave breaches because

    19 they are acts prohibited by the grave breaches

    20 provisions of the Geneva Conventions committed against

    21 protected persons on the Bosnian side of the

    22 international conflict by persons with a link or nexus

    23 to the Croatian side.

    24 I may now pass for a moment to the personal

    25 details of the accused. The accused Zlatko Aleksovski

  15. 1 was born on 8th January 1960 in Pakrac municipality in

    2 the Republic of Croatia. After Zlatko Aleksovski was

    3 born his parents moved from Pakrac to Zenica, where they

    4 were employed at the Zenica Zelezara ironworks. Zlatko

    5 Aleksovski completed elementary school and secondary

    6 school for electrical engineering in Zenica and then

    7 enrolled in the Veljko Viahovic Faculty of Political

    8 Sciences, Department of Sociology, in Sarajevo. He

    9 completed his studies on 28th September 1983 and

    10 qualified as a sociology teacher.

    11 Zlatko Aleksovski was first employed on 29th July

    12 1985 at the Vatrostalna firm in Busovaca where he worked

    13 as Secretary for Information until 16th May 1986. From

    14 23rd February 1987, he was employed as counsellor at the

    15 Zenica correction house until on or about January 1993,

    16 when he left to become commander of the prison facility

    17 at Kaonik near Busovaca.

    18 Your Honours, the accused, Aleksovski, has been

    19 charged under Articles 7(1) and 7(3) of the Statute.

    20 Dealing firstly with individual criminal responsibility,

    21 under Article 7(1) of the Statute, a person who plans,

    22 instigates, orders or commits, or otherwise aids or

    23 abets in the planning, preparation or execution of a

    24 crime described in the Statute is individually

    25 criminally responsible. Article 7(1) encompasses the

  16. 1 principle that all those who contribute to the

    2 commission of the crime should be held individually

    3 responsible. The words "planned, instigated, ordered,

    4 committed or otherwise aided and abetted" should be

    5 interpreted as all persons who take part in the

    6 commission of a crime are amenable to the criminal law.

    7 Courts generally do not strictly define the

    8 precise parameters of individual criminal

    9 responsibility, as the most marginal act of assistance

    10 or encouragement could amount to complicity. Mere

    11 presence at the scene of the crime without proof of

    12 other factors does not give rise to criminal liability;

    13 however presence at the scene of the crime, depending on

    14 the circumstances, may constitute criminal

    15 responsibility. There is a clear distinction between a

    16 bystander who happens to arrive at the scene of the

    17 crime and an individual who is intentionally present at

    18 a location where unlawful acts are being committed.

    19 Our evidence against the accused for Article 7(1),

    20 responsibility for the crimes in the indictment, is

    21 based on both direct testimonial and strong

    22 circumstantial evidence.

    23 First, Zlatko Aleksovski was the commander of the

    24 Kaonik prison. Our evidence will show that Aleksovski

    25 introduced himself to detainees and to international

  17. 1 observers as the commander of the camp. Our evidence

    2 will also show that the prison guards were subject to

    3 Zlatko Aleksovski's orders. Nothing apparently could be

    4 carried out without his consent. The accused kept a

    5 tight control over events in the camp, he was

    6 experienced and trained as a prison warden. He knew how

    7 to run such an establishment. Guards were not permitted

    8 to embark on new initiatives without first obtaining

    9 Aleksovski's permission. The evidence will show that

    10 the HVO came into the cells at the Kaonik prison and

    11 took certain people out and beat them. It is the

    12 Prosecution case that these beatings occurred with the

    13 knowledge and/or acquiescence of the accused.

    14 It is the Prosecution's contention that the crimes

    15 alleged in the indictment were committed with impunity

    16 in a systematic manner. The crimes included the

    17 systematic detention of Muslim men and boys, both

    18 military and civilian; the widespread beating and mental

    19 and physical abuse of Muslim detainees by prison guards

    20 at Kaonik and HVO soldiers; the systematic use of Muslim

    21 detainees to dig trenches and to act as human shields.

    22 Your Honours, the inhumane treatment of Bosnian

    23 Muslim detainees at Kaonik, which prevailed prior to

    24 Aleksovski's command over Kaonik prison, continued

    25 during the period January to May 1993 while he was

  18. 1 commander.

    2 Passing now on to superior or command

    3 responsibility, your Honours, we have also alleged

    4 command responsibility. Article 7(3) of the Statute of

    5 the Tribunal elaborates the general provisions of

    6 Article 7(1) by specifically providing that superiors

    7 may be held criminally liable for the violations of

    8 international humanitarian law committed by their

    9 subordinates. It is a species of liability applicable

    10 under international criminal law in that it provides

    11 that a superior's failure to adequately control or

    12 punish subordinates may amount to an acquiescence in the

    13 offence committed by such subordinates, and a superior

    14 may accordingly assume criminal responsibility for these

    15 offences.

    16 Zlatko Aleksovski's position of authority in the

    17 Kaonik prison makes him responsible through his

    18 subordinates for acts and omissions where imprisonment,

    19 physical and mental abuse, use of detainees for trench

    20 digging and so on related to the very conditions of

    21 detention are concerned. All military commanders have a

    22 solemn obligation to ensure that the horror of war is

    23 not visited upon innocent civilians and prisoners of

    24 war -- and that they may be held responsible for a

    25 dereliction of duty, as was stated in the Yamashita

  19. 1 case, and I quote:

    2 "It is evident that the conduct of military

    3 operations by troops whose excesses are unrestrained by

    4 the orders or efforts of their commander would almost

    5 certainly result in violations which the purpose of the

    6 law of war is to prevent. Its purpose to protect the

    7 civilian population and prisoners of war from brutality

    8 would largely be defeated if the commander of an

    9 invading army could with impunity neglect to take

    10 reasonable measures for their protection."

    11 The principle of command responsibility is

    12 enshrined in Article 7(3) and holds that a superior is

    13 criminally responsible if he knew or had reason to know

    14 that a subordinate was about to commit crimes or had

    15 done so and failed to take the reasonable or necessary

    16 steps to prevent such acts or punish the perpetrators

    17 thereof. Although the term "command responsibility" is

    18 often a military term, it is used with respect to the

    19 present case and the position of the Prosecutor is that

    20 this doctrine also applies mutatis mutandis to civilians

    21 in positions of superior authority.

    22 In other words, command responsibility is the

    23 military expression of the broader concept of superior

    24 responsibility. The reference to superiors is

    25 sufficiently broad to cover military commanders or other

  20. 1 civilian authorities who are in a similar position of

    2 command and exercise a similar degree of control with

    3 respect to their subordinates.

    4 To establish this form of criminal liability under

    5 the Statute, we have to and will establish the following

    6 three matters: the superior/subordinate relationship;

    7 first, the superior concerned must be the superior of

    8 the subordinate. Article 7(3) applies to superiors who

    9 have a personal responsibility in relation to

    10 perpetrators on the basis that the perpetrators are

    11 subordinate under the superior's control. The doctrine

    12 of superior responsibility is applicable with regard to

    13 subordinates under the direct or indirect control of the

    14 superior. Both forms of control can exist as a result

    15 of de jure or de facto chains of command.

    16 Your Honours, our evidence will show beyond a

    17 reasonable doubt that Zlatko Aleksovski was the

    18 commander of the Kaonik prison between the end of

    19 January and 31st May 1993. As such, Aleksovski was the

    20 highest officer in command of the prison. Zlatko

    21 Aleksovski, as demonstrated, exercised his control over

    22 the detention facility, Kaonik prison, in a variety of

    23 ways, including but not limited to formal meetings with

    24 international agencies, accepting the custody of

    25 arrested persons, allowing the unlawful interrogation of

  21. 1 detained persons, allowing them to be used for unlawful

    2 forced labour, digging trenches, and to be used as human

    3 shields. He can be held criminally responsible under

    4 Article 7(3), irrespective of whether his position as

    5 camp commander can be characterised as superior,

    6 civilian superior, military commander or warden.

    7 The evidence will show that he had control over

    8 the guards and the persons in the camp who were his

    9 subordinates and he was under a duty to prevent or

    10 punish their violations of international humanitarian

    11 law. Your Honours may note that in the Hostages Case,

    12 the military tribunal there clearly held that an

    13 occupational commander endowed with executive power over

    14 occupied territory is responsible for acts committed

    15 within his area of responsibility, regardless of whether

    16 the unit was subordinated to his command or not.

    17 Further, Article 87 of Protocol 1 of 1977 extends

    18 the duty of commanders not only to members of the armed

    19 forces under their command but also to other persons

    20 under their control, implying that such commander is

    21 responsible for restoring and ensuring public order and

    22 safety as far as possible and shall take all measures in

    23 his powers to achieve this, even with regard to troops

    24 which are not directly subordinate to him, if these are

    25 operating in his sector. In addition to members of the

  22. 1 armed forces, such responsibility would equally apply to

    2 local population, where for example some of the

    3 inhabitants were to undertake some sort of pogrom

    4 against minority groups.

    5 We say, your Honours, that by analogy the position

    6 that would operate in a camp with people entering the

    7 camp and carrying out acts in that camp, which camp is

    8 under the direct control of the accused, is an analogous

    9 circumstance.

    10 It is interesting, your Honours, that not only

    11 does Article 87 of Protocol 1 of the 1977 Protocol deal

    12 with this issue, but it also reflects the provisions of

    13 our own Statute, when in paragraph 3 it says that the

    14 high contracting parties and the parties to the conflict

    15 shall require any commander who is aware that

    16 subordinates or other persons under his control are

    17 going to commit or have committed a breach of the

    18 Convention or of the Protocol to initiate such steps as

    19 are necessary to prevent such violations and so forth.

    20 Your Honours, there is a basic proposition in

    21 international humanitarian law dealing with camp

    22 commanders and prison commanders, and that principle is

    23 set out very simply. It is that a prison commander such

    24 as Aleksovski has certain duties and responsibilities.

    25 These duties are not restricted solely to the physical

  23. 1 maintenance of the prison or charges. It goes beyond

    2 that to create a positive and affirmative, as opposed to

    3 a passive, duty, to be responsible for the physical and

    4 mental well-being or health of the prisoners.

    5 The reason for this duty is clear. It is because

    6 the liberty of the prisoner has been taken away and that

    7 they cannot protect themselves that the commander is

    8 responsible for protecting them against attack, both

    9 within the prison and from outside.

    10 The civilian prisoners at Kaonik during the time

    11 that the accused was the commander were never charged

    12 with any crime. Nor was it asserted to international

    13 observers that they had committed any crime. It seems

    14 that the whole basis for their detention was their

    15 ethnicity. It was their Muslim ethnicity which

    16 determined whether or not they would be detained. Once

    17 detained, their continued detention was justified on the

    18 basis that they would be suitable for exchange. Thus

    19 these civilian prisoners were a bargaining chip for some

    20 future exchange.

    21 Your Honours, it is illegal to detain innocent

    22 civilians in order to have a store of human bargaining

    23 chips so that some future exchange might take place. It

    24 is inhumane and constitutes an outrage upon the personal

    25 dignity of the victim. Our evidence will show,

  24. 1 your Honours, that the Muslim detainees were abused and

    2 mistreated not only by the prison guards, who were under

    3 the direct control and command of Aleksovski in a direct

    4 hierarchical line, but also by HVO troops. There is

    5 evidence that first HVO troops were allowed to enter the

    6 cells at night and abuse the prisoners. There is

    7 evidence that the HVO troops, with Aleksovski's

    8 knowledge and permission, took detainees to dig trenches

    9 under hazardous conditions.

    10 Your Honours, the accused Aleksovski had control

    11 over the keys to the cells of the prisoners. Prisoners

    12 around the world have one thing in common, in that the

    13 prisoners are locked up and the reason that they are

    14 locked up is because they will not escape, so when they

    15 are placed in cells and the keys turned, they cannot get

    16 out. But the converse is also true. When the key is

    17 turned and HVO troops with impunity enter the cells and

    18 abuse the prisoners, or when the key is turned and the

    19 prisoners are given to the HVO troops to abuse them as

    20 human shields or to use them against their will to force

    21 them to dig trenches in hazardous conditions, the common

    22 fact lies in control over the key; who had the key?

    23 Your Honours, the accused Aleksovski had control over

    24 the keys and when he chose to allow the key to be used,

    25 to have his prisoners that he was responsible for

  25. 1 subjected to inhumane treatment, he either became a

    2 party to or failed to prevent the occurrences of

    3 inhumane treatment.

    4 Your Honour, our evidence will show that the

    5 accused Aleksovski demonstrated control and custody over

    6 the liberty of the detainees at Kaonik prison. Some

    7 examples of that are firstly when ECMM monitors went to

    8 Kaonik to observe the conditions, he suggested the --

    9 and the ECMM monitor suggested the release of a

    10 particular prisoner, the accused Aleksovski, without

    11 seeking any advice, permission or orders from anyone,

    12 immediately released that detainee. This demonstrates

    13 that the accused Aleksovski, when he wanted to, had

    14 control over the liberty of detainees.

    15 Another example is an event where Aleksovski

    16 refused to comply with the request of an HVO commander

    17 to get prisoners to dig trenches. This demonstrates

    18 that Aleksovski had and in fact did exercise

    19 determination of whether or not the detainees could be

    20 taken by the HVO.

    21 The next element, your Honours, or the second

    22 element in proof of this is the issue of knowledge.

    23 Aleksovski knew or had information which would have

    24 enabled him to conclude that a breach was being

    25 committed, or was going to be committed, or had been

  26. 1 committed. The elements may be established either

    2 through actual knowledge, established by direct or

    3 circumstantial evidence, or through establishing that

    4 the accused would have had knowledge were it not for his

    5 wilful blindness to the circumstances. The Prosecution

    6 submits, your Honour, that the mens rea standard has to

    7 be applied in the broader context of the far-reaching

    8 and comprehensive duty of military commanders to take

    9 all necessary measures to ensure compliance with

    10 international humanitarian law on the part of their

    11 subordinates.

    12 Article 7(3) of the Statute of the Tribunal

    13 provides that the accused, being in a position of

    14 superior responsibility, is responsible for a failure to

    15 act with respect to breaches of international

    16 humanitarian law committed by his subordinates. If he

    17 knew or had reason to know that the subordinate was

    18 about to commit such acts or had done so. Accordingly,

    19 knowledge of criminal acts committed by subordinates may

    20 be actual or constructive. In particular:

    21 "Ignorance does not absolve superiors from

    22 responsibility if it can be attributed to a fault on

    23 their part. The fact that breaches have widespread

    24 public notoriety, are numerous and occur over a long

    25 period and in many places, should be taken into

  27. 1 consideration in reaching a presumption that the person

    2 responsible could not be ignorant of them."

    3 The Yamashita case indicates that the public

    4 notoriety of crimes can be a decisive factor in

    5 determining the knowledge of the accused. I quote from

    6 that decision where their Honours said:

    7 "Where murder and rape and vicious revengeful acts

    8 and widespread offences and there is no effective

    9 attempt by a commander to discover or control the

    10 criminal acts, such a commander may be held responsible,

    11 even criminally liable for lawless acts of his troops,

    12 depending upon their nature and circumstances

    13 surrounding them."

    14 Furthermore, the Tribunal in the German High

    15 Command trial attributed criminal responsibility to a

    16 superior:

    17 "Where his failure to properly supervise his

    18 subordinates constitutes criminal negligence on his part

    19 ... It must be a personal neglect amounting to wanton,

    20 immoral disregard of the action of his subordinates,

    21 amounting to acquiescence."

    22 Accordingly, the requisite mens rea under Article

    23 7(3) exists if the accused either possessed actual

    24 knowledge of the violations established through direct

    25 evidence or through circumstantial evidence with a

  28. 1 presumption of knowledge where the crimes of the

    2 subordinates are a matter of public notoriety, are

    3 numerous, occur over a prolonged period or in a wide

    4 geographical area, or if the accused wantonly

    5 disregarded information of a general nature within his

    6 reasonable access, indicating the likelihood of actual

    7 and prospective criminal conduct on the part of his

    8 subordinates.

    9 Your Honours, our evidence regarding mistreatment

    10 of detainees will show that prisoners were being kept in

    11 cramped or crowded conditions, for example men were

    12 cramped in cells for long periods of time. The accused

    13 Aleksovski had knowledge of these conditions, he

    14 admitted it to ECMM monitors, an observer who visited

    15 the camp, that he realised the facilities were poor and

    16 said that the facilities were in fact not built for the

    17 purpose.

    18 Another example is of a man placed in these cells

    19 was given one blanket to share between two men. This

    20 was at a period of time when the camp would get so cold

    21 that in fact the temperatures ranged from minus 10

    22 degrees Celsius.

    23 Another kind of mistreatment your Honours will

    24 hear about is inadequate food. The men were fed one or

    25 two times over a 24-hour period. These men were often

  29. 1 called upon to do hard physical labour and needed

    2 nutrition and they were given rations that were not

    3 enough for one man and yet they were forced to share

    4 inadequate rations between two.

    5 The accused, of his own admission to the ECMM

    6 monitors, acknowledged that the food supplies were

    7 inadequate.

    8 A third type of misconduct that occurred at the

    9 prison itself was inadequate or no medical care. In

    10 fairness to Mr. Aleksovski and certainly in comparison to

    11 what we have seen in other camps, the Prosecution

    12 concedes that he did show some concern for the

    13 prisoners. It is true and to his credit that medical

    14 care was supplied to some of the prisoners, but the

    15 reality is equally that there were occasions when people

    16 needed medical care and were given none, or were given

    17 inadequate medical care.

    18 The fourth kind of mistreatment in Kaonik prison

    19 that the Prosecution will bring evidence of is physical

    20 and psychological abuse. These abuses took place in the

    21 setting of prolonged interrogations where brute force

    22 was brought to bear on prisoners who had nowhere to run

    23 or escape. The Muslim detainees were constantly abused,

    24 intimidated and psychologically tortured. The beatings

    25 occurred mostly at night. Many of the witnesses will

  30. 1 speak of the screams that occurred throughout the night.

    2 Your Honours, Aleksovski knew of the beatings and

    3 the physical abuse that the detainees under his

    4 protection were subjected to. Aleksovski admitted as

    5 much to ECMM officials, that he knew the guards beat the

    6 prisoners, and even goes on to explain why they may have

    7 done that.

    8 Last but not least, our evidence may show that

    9 Aleksovski had actual knowledge of Muslim detainees

    10 being forced to dig trenches; in fact our evidence will

    11 show that Aleksovski maintained lists of detainees from

    12 which prisoners were selected for trench digging.

    13 Aleksovski freely admitted his knowledge that civilians

    14 were being sent to dig trenches when questioned by

    15 international observers. Not only did Aleksovski know

    16 of the fact that Muslim detainees were being sent to dig

    17 trenches, he also knew that there was an inherent danger

    18 in digging trenches on the front-line. He knew that

    19 these trenches were on the confrontation lines and were

    20 dangerous, he knew that his own HVO, the Croats were

    21 getting killed while digging trenches, so he knew about

    22 the possibility of Muslim people being killed there as

    23 well. Furthermore, Aleksovski knew that some of these

    24 detainees never came back from trench digging.

    25 Our evidence will show that the beatings, physical

  31. 1 abuse of the detainees was so widespread in Kaonik that

    2 he had abundant constructive knowledge of the matters

    3 and of the manner in which his subordinates were

    4 mistreating the detainees. The testimony will show that

    5 his office was in the same building where the detainees

    6 were physically abused.

    7 Your Honours, Article 3(1) of the fourth Geneva

    8 Convention of 1949 clearly states that:

    9 "No physical or moral coercion shall be exercised

    10 against protected persons, in particular to obtain

    11 information from them or from third parties."

    12 Article 3(2) provides that:

    13 "The high contracting parties specifically agree

    14 each of them is prohibited from taking any matters of

    15 such a character to cause the physical suffering,

    16 extermination of protected persons in their hands. This

    17 prohibition applies not only to murder, torture,

    18 corporal punishment, mutilation, medical and scientific

    19 experiments, not necessarily suited for medical

    20 treatment of a protected person, but also to any other

    21 measures of brutality, whether applied by civilian or

    22 military agents."

    23 Moreover, the accused Aleksovski also knew that

    24 detainees had to be handed over to the HVO for trench

    25 digging and were subjected to physical abuse when doing

  32. 1 that. Many of them returned to the camp after having

    2 been to the trenches with visible injuries.

    3 Your Honours, Article 40 of the fourth Geneva

    4 Convention, dealing with civilians, the second

    5 paragraph specifically provides:

    6 "If protected persons of enemy nationality, they

    7 may only be compelled to do work which is normally

    8 necessary to ensure the feeding, sheltering, clothing,

    9 transport and health of human beings and which is not

    10 directly related to the conduct of military operations."

    11 Article 95 provides that:

    12 "The detaining power shall not employ internees as

    13 workers unless they so desire and any employment in

    14 which they are so engaged shall not be of a degrading or

    15 humiliating character."

    16 Your Honours, what emerges from the above

    17 discussion is that the accused Aleksovski clearly was on

    18 notice and had knowledge, actual knowledge of the

    19 mistreatment of the detainees under his protection and

    20 control, yet he did not take all of the necessary

    21 preventative measures under his control to improve the

    22 situation for the hapless detainees.

    23 Our evidence will show, your Honours, that by

    24 denying prisoners basic conditions, safeguarding health

    25 or hygiene, not providing them with adequate clothing

  33. 1 according to the climate is a breach of the Geneva

    2 Conventions. Article 85, for example, of the

    3 fourth Geneva Convention requires that:

    4 "... detainees be accommodated in buildings or

    5 quarters which afford possible safeguards as regards

    6 hygiene and health. The premises shall be protected

    7 against dampness, adequately heated and lit. Internees

    8 shall be given suitable bedding, sufficient blankets

    9 suitable for the climate. Internees shall have the use

    10 day and night of sanitary conveniences which conform to

    11 the rules of hygiene, and are constantly maintained in

    12 the state of cleanliness. They should be provided with

    13 sufficient water and soap for their daily toilet",

    14 et cetera.

    15 Article 89 provides that:

    16 "Daily rations for internees shall be sufficient

    17 in quantity and variety to keep them in a good state of

    18 health and further that internees who work shall receive

    19 additional rations in proportion to the kind of labour

    20 they perform."

    21 Article 90 provides that:

    22 "Internees shall be given all the facilities to

    23 provide themselves with necessary clothing, footwear",

    24 and so forth.

    25 In addition to that, under Article 91:

  34. 1 "There shall be in a place of internment an

    2 adequate infirmary under the direction of a qualified

    3 doctor where internees may have the attention they

    4 require for their medical needs."

    5 All of these, your Honours, are provided for

    6 clearly and specifically in the Geneva Conventions and

    7 in our submission, your Honours, all of these are

    8 recognised in their abuse at the Kaonik centre.

    9 The next element, your Honours, that I deal with

    10 is prevention of punishment. The evidence will show

    11 that the accused Aleksovski failed to take necessary and

    12 reasonable steps to prevent such acts or to prohibit the

    13 perpetrators who committed them. One detainee who will

    14 testify was beaten frequently, sometimes for most of the

    15 day, and was one of the victims among many that

    16 Aleksovski failed to attend to, or to take action in

    17 relation to. This detainee reports a conversation

    18 between a prison guard, who went to Aleksovski and said,

    19 "did you not promise me that this detainee would not

    20 leave the camp alive?"; Aleksovski replied, "can you see

    21 his condition? He will not survive and it is better

    22 that they will die in their hands than in ours".

    23 Moreover, according to this witness, the beatings

    24 increased after he had complained, and ultimately he was

    25 assured by Aleksovski that he would be beaten no more.

  35. 1 Clearly such statements indicate that Aleksovski had

    2 notice and knowledge of grave violations and once having

    3 notice and knowledge, he failed to either prevent the

    4 reoccurrence of such acts or failed to punish those who

    5 perpetrated the acts. Thus the Prosecution submits that

    6 by disregarding the well-being of the detainees, Zlatko

    7 Aleksovski failed to act in accordance with his duty

    8 towards the detainees.

    9 Under customary international law, a commander is

    10 under an obligation to ensure that persons under his

    11 command are aware of their obligations to abide by the

    12 provisions of international law and they must do so

    13 either periodically or expressly. We will present

    14 evidence to show that Aleksovski did issue some of these

    15 types of orders and thus did know of his

    16 responsibilities. However, the mere issuance of routine

    17 orders to abide by the Geneva Conventions does not

    18 relieve a commander of criminal responsibility. His

    19 concomitant duty is to ensure that his orders are being

    20 effectively carried out. The commander has an

    21 affirmative duty to take all necessary measures for the

    22 protection of the civilian population.

    23 As was stated in the Hostages Case, and I quote:

    24 "The primary responsibility for the prevention and

    25 punishment of crime lie with the commander general, a

  36. 1 responsibility that he cannot escape by denying

    2 authority over the perpetrators. Notably the duty of

    3 commanders to acquire knowledge concerning the actions

    4 of their subordinates includes the establishment and

    5 securing of an effective functioning reporting system."

    6 The requirement was set forth by the international

    7 military tribunal for the Far East in a part of its

    8 decision dealing with war crimes against prisoners and

    9 they said as follows:

    10 "It is the duty of all those on whom

    11 responsibility rests to secure proper treatment of

    12 prisoners and to prevent their ill-treatment by

    13 establishing and securing the continuous and efficient

    14 working of an appropriate system for these purposes.

    15 Such persons fail in this duty and become responsible

    16 for ill-treatment of prisoners if they fail to establish

    17 such a system or if, having established such a system,

    18 they fail to secure its continued and efficient

    19 working. A military commander has a duty to ascertain

    20 that the system is working and if he neglects to do so,

    21 he is responsible. He does not discharge his duty by

    22 merely instituting an appropriate system and thereafter

    23 neglecting to learn of its application.

    24 Furthermore, even if "a proper system and its

    25 continuous efficient functioning be provided for", in

  37. 1 addition to actual knowledge that such crimes were being

    2 committed, military commanders may be held responsible

    3 if:

    4 "... they are at fault in having failed to acquire

    5 such knowledge. If such a person had or should but for

    6 negligent or supineness have had such knowledge, he is

    7 not excused for an action if his office required or

    8 permitted him to take any action to prevent such

    9 crimes.

    10 "On the other hand, it is not enough for the

    11 exculpation of a person otherwise responsible for him to

    12 show that he accepted assurances from others more

    13 directly associated with the control of prisoners if

    14 having regard to the position of those others to the

    15 frequency or reports of such crimes, or to the

    16 circumstances he should have been put upon further

    17 enquiry as to whether those assurances were true or

    18 untrue; that crimes are notorious, numerous and

    19 widespread as to the time, place and matters are to be

    20 considered in imputing knowledge."

    21 In view of the more exacting standards imposed on

    22 military superiors, it is instructive to consider the

    23 dictum of the French Superior Military Court on the

    24 defence of lack of knowledge in the trial of the

    25 directors of the firm Roechling, involving in part the

  38. 1 more limited superior responsibility of civilian

    2 industrialists for criminal acts of their subordinates.

    3 No superior may prefer this defence indefinitely, for it

    4 is his duty to know what occurs in his organisation and

    5 lack of knowledge therefore can only be the result of

    6 criminal negligence. For the rest, the acceptance of

    7 superior orders on the one hand and the lack of

    8 knowledge as to the execution by subordinates on the

    9 other would lead to the abolishment of any penalty, the

    10 executing agents would seek cover behind the superior

    11 orders and the superior behind his lack of knowledge and

    12 say, "I had no knowledge of that".

    13 It is in light of this well-established

    14 jurisprudence that the standard of "knew or had

    15 information" should have enabled him to conclude in the

    16 circumstances at the time.

    17 Your Honours, in Article 86(2) of the 1977

    18 Additional Protocol of the Geneva Conventions, it is

    19 provided there that the breach of the Convention or the

    20 Protocol -- the fact that the breach of the Convention

    21 or the Protocol was committed by a subordinate does not

    22 absolve his superiors from penal or disciplinary

    23 responsibility, as the case may be, if they knew or had

    24 information which should have enabled them to conclude

    25 in the circumstances at the time that he was committing

  39. 1 or was going to commit such a breach, or if they did not

    2 take all feasible measures within their power to prevent

    3 or repress such brief.

    4 In its commentary to the draft Code of Crimes

    5 Against the Peace and Security of Mankind, the

    6 International Law Commission notes that:

    7 "The phrase 'had reason to know' contained in the

    8 provision on responsibility of the superior

    9 corresponding to Article 6 is taken from the statutes of

    10 the tribunals on Rwanda and Yugoslavia and should be

    11 understood as having the same meaning as 'had

    12 information enabling them to conclude' which is used in

    13 Additional Protocol 1."

    14 The Commission decided to use the former phrase to

    15 ensure an objective rather than subjective

    16 interpretation of the mens rea standard. The Commission

    17 states furthermore that the "had information enabling

    18 them to conclude" standard of Protocol 1 simply means

    19 that the superior has sufficient relevant information to

    20 enable him to conclude under the circumstances of the

    21 time that his subordinates are committing or about to

    22 commit a crime. In this situation, a superior does not

    23 have to have actual knowledge of the unlawful conduct

    24 being planned or perpetrated by his subordinates, but he

    25 has sufficient relevant information of a general nature

  40. 1 that would enable him to conclude that this is the

    2 case.

    3 With respect to the affirmative duty to know, the

    4 Commission states that a superior who simply ignores

    5 information which clearly indicates the likelihood of

    6 criminal conduct on the part of his subordinates is

    7 seriously negligent in failing to perform his duty to

    8 prevent or suppress such conduct by failing to make a

    9 reasonable effort to obtain the necessary information

    10 that will enable him to take appropriate action.

    11 Although this category of knowledge is in our

    12 submission sufficient for the accused to be found

    13 guilty, our evidence in this case will show that

    14 Aleksovski had actual knowledge. Yet despite the

    15 knowledge of the crimes committed by his subordinates,

    16 he failed to take the necessary measures to suppress

    17 breaches or to punish his subordinates. Indeed, our

    18 evidence will go further and will show that Aleksovski

    19 participated himself in some of these egregious acts.

    20 According to one detainee, Aleksovski never prevented

    21 the beating and that the soldiers involved were never

    22 punished. His preventative actions, half-hearted

    23 commands at best, did not have any deterrent effects.

    24 This detainee heard Aleksovski give a command to

    25 watch the prisoners more carefully and not to beat them

  41. 1 so much. Clearly this statement shows that Aleksovski

    2 knew about the beatings and mistreatment of prisoners,

    3 but his concern for their well-being was limited to a

    4 degree of mistreatment, rather than preventing the

    5 mistreatment from happening at all.

    6 Moreover, the accused Aleksovski allowed Muslim

    7 detainees to be forced to dig trenches in hazardous

    8 conditions. Justice and international standards of

    9 command responsibility cannot be defined at such a low

    10 threshold that a half-hearted attempt to control

    11 atrocities will suffice. To do so would be to make a

    12 travesty of the laws of war and the Geneva Conventions

    13 which were framed precisely for preventing such

    14 occurrences. The commander has a duty to do everything

    15 in his power to protect the detainees, especially

    16 civilians under his control.

    17 Superiors are under a duty to take all measures

    18 within their power in accordance with the means at their

    19 disposal to prevent or punish breaches of humanitarian

    20 law. In particular, Protocol 1 stipulates that

    21 superiors are obligated to undertake a wide range of

    22 measures to prevent and punish subordinate

    23 perpetrators. As the International Committee of the Red

    24 Cross commentary to Protocol 1 points out, the role of

    25 the commander is decisive, whether they are concerned

  42. 1 with the theatre of military operations, occupied

    2 territories or places of internment, the necessary

    3 measures for the proper application of the Conventions

    4 and the Protocols must be taken at the level of the

    5 troops so that a fatal gap between the undertakings

    6 entered into by parties to the conflict and the conduct

    7 of individuals is avoided. At this level, everything

    8 depends on commanders and without their conscious

    9 supervision, general legal requirements are likely to be

    10 affected.

    11 Article 87 of Protocol 1, which I referred to

    12 earlier, obligates commanders to firstly prevent and,

    13 where necessary, suppress and report to the competent

    14 authority breaches of the Geneva Conventions in Protocol

    15 1. Secondly, to take measures to ensure that armed

    16 forces under their command are aware of their

    17 obligations.

    18 In specific terms, the duty of a commander in

    19 taking the necessary and reasonable measures to prevent

    20 or punish violations of the humanitarian law is dealt

    21 with again in the International Committee of the Red

    22 Cross's commentary when it says:

    23 "It is not a matter of transferring to military

    24 commanders the competence and responsibilities which are

    25 those of the judicial authority. Even if it is a

  43. 1 military court, whether or not it is represented by a

    2 military commission constituted in accordance with the

    3 law, the object of these texts is to ensure that

    4 military commanders at every level exercise the power

    5 vested in them, both with regard to the provisions of

    6 the Conventions and the Protocols and with regard to

    7 other rules of the army to which they belong. Such

    8 powers exist in all armies. They may concern at any

    9 level informing superior officers of what is taking

    10 place in the sector, drawing up a report in case of a

    11 breach, intervening with a view to preventing a breach

    12 from being committed, proposing a sanction to a superior

    13 who has disciplining power or, in the case of someone

    14 who holds such power himself, exercising it within the

    15 limits of his competence; and finally remitting the case

    16 to judicial authorities where necessary with such

    17 factual evidence as is possible to find."

    18 It is thus evident that various superiors at the

    19 same and different levels in hierarchy can be legally

    20 responsible to prevent or to punish the unlawful acts of

    21 some subordinates. The failure of any such superior to

    22 fulfil his duties in this regard cannot excuse another

    23 superior's failure to undertake necessary and reasonable

    24 measures in the circumstances. The obligations of

    25 superiors apply in the context of responsibilities as

  44. 1 they have devolved over different levels of hierarchy,

    2 within the confines of each of the areas of competence.

    3 The responsibility of each of these applies with respect

    4 to all of the members of the armed forces under the

    5 superior's command.

    6 Under Article 7(3) of the Statute, the superior's

    7 duty to punish subordinate extends to violations that

    8 were committed before the superior was appointed if he

    9 knew or should have known about these violations after

    10 he assumed command of the perpetrators. In the event

    11 that the superior failed to take the necessary and

    12 reasonable measures to punish the perpetrators in these

    13 circumstances, he can be held criminally liable for the

    14 violations committed by his subordinates.

    15 In the German High Command trial, Field Marshall

    16 von Keschler was held responsible for the illegal

    17 execution of red army soldiers which occurred before he

    18 took up command, on the basis that the reports of these

    19 executions were made to his headquarters and he took up

    20 command and he took no punitive action in relation

    21 thereto.

    22 Finally, in determining the accused took the

    23 necessary and reasonable measures, where a commander

    24 acted pursuant to an order of a superior, Article 7(4)

    25 of the Statute clearly provides that he shall not be

  45. 1 relieved of criminal responsibilities.

    2 Your Honours, as principal commander, Aleksovski

    3 met with international officials, provided them with

    4 lists of detained persons and acknowledged his position

    5 in the facility. He demonstrated an understanding of

    6 the Geneva Conventions. He knew that civilians were

    7 being sent out to dig trenches, yet he did not ensure

    8 the well-being of the detainees whom he had the duty to

    9 protect. He did not give any orders countermanding the

    10 illegal orders of forcing civilians to dig trenches. He

    11 did not resign, he did not report the matter to any

    12 competent authority. There is no evidence that he tried

    13 to distance himself from what he knew to be illegal.

    14 There is no evidence that he said, "I am abhorred by

    15 what is going on and I resign".

    16 In summary, under the doctrine of superior

    17 responsibility, incorporated in Article 7(3) of the

    18 Statute, the accused Aleksovski, as camp commander of

    19 Kaonik prison, is criminally responsible for the

    20 violations of international humanitarian law committed

    21 by his subordinates over whom he has direct or indirect

    22 command and control, whether exercised de jure or de

    23 facto, Aleksovski knew or had reason to know, which

    24 includes ignorance resulting from superior's failure to

    25 properly supervise his subordinates that these acts were

  46. 1 about to be committed or even had been committed. The

    2 superior liability of Aleksovski arises on the basis

    3 that a superior is under a duty to take all reasonable

    4 or necessary measures. Your Honours, our evidence will

    5 show that Aleksovski failed to discharge this duty.

    6 Your Honours, I note the time and I am now about

    7 to pass on to that aspect of the case relating to

    8 international armed conflict. Might it be a suitable

    9 time for us to have a break now?

    10 JUDGE RODRIGUES: Yes, I was going to suggest that we take a

    11 break, because I feel that non-verbal signals have been

    12 given indicating that we should do that. Perhaps we

    13 might resume at noon.

    14 (11.30 am)

    15 (A short break)

    16 (12.00 pm)

    17 JUDGE RODRIGUES: Excuse us for the slight delay. I would

    18 like to tell the parties, that is both parties,

    19 Prosecution and Defence, that you should always remember

    20 that you need to take a break, which you can propose.

    21 I want to say that I admire Mr. Niemann's physical powers

    22 and resistance, and now we can resume our hearing, if

    23 you are prepared to do so, Mr. Niemann.

    24 MR. NIEMANN: Thank you, your Honours. Your Honours, I will

    25 now move on to discuss the issue of international armed

  47. 1 conflict, and then some other minor matters and then my

    2 opening will be complete.

    3 Your Honours, Article 2 of the Statute of the

    4 Tribunal is applicable when the following legal elements

    5 are satisfied. Firstly, the existence of an

    6 international armed conflict or occupation between two

    7 or more internationally recognised states or de facto

    8 state entities.

    9 Two, the victims are protected under one or more

    10 of the Geneva Conventions in relation to the side of the

    11 international armed conflict to which the accused is

    12 linked, in particular in the 1949 Geneva Convention

    13 relative to the protection of civilian persons in time

    14 of war (Geneva Convention IV) protects civilians, while

    15 the 1949 Geneva Convention relative to the treatment of

    16 prisoners of war (Geneva Convention III) protects

    17 prisoners of war.

    18 Thirdly, that the accused committed one of the

    19 enumerated acts listed in Article 2 of the Statute.

    20 These elements are derived from the 1949 Geneva

    21 Conventions. The Appeals Chamber held that Article 2 of

    22 the Statute is based on the Geneva Conventions of 1949

    23 and more specifically the provisions of those

    24 Conventions relating to the grave breaches. Article 2

    25 of the Statute is therefore applicable to the present

  48. 1 case where the requirements that render the grave breach

    2 provisions of the Geneva Conventions operative are

    3 fulfilled. The Appeals Chamber in the Tadic case has

    4 decided that Article 2 of the Statute only applies to

    5 offences committed within the context of international

    6 conflict. Your Honours, we will provide evidence that

    7 an international armed conflict between

    8 Bosnia-Herzegovina and Croatia existed during the period

    9 of time when the offences referred to in the indictment

    10 are alleged to have been committed.

    11 We will also demonstrate that the victims of the

    12 alleged offences were, for the purposes of the grave

    13 breach provisions of the Geneva Conventions, protected

    14 persons linked to the Bosnian side of the conflict,

    15 while the alleged perpetrators had a nexus with the

    16 Bosnian Croat authorities and the Bosnian Croat entity

    17 was in fact linked to Croatia.

    18 The alleged offences are grave breaches because

    19 they are acts prohibited by the grave breach provisions

    20 of the Geneva Conventions committed against protected

    21 persons on the Bosnian side of the international

    22 conflict by persons with a link to the Croatian side.

    23 Dealing firstly with international armed conflict,

    24 Article 2, common to all four of the Geneva Conventions,

    25 establishes the general applicability of the Conventions

  49. 1 and as such Article 2 of the Statute of the Tribunal.

    2 The Convention applies to all cases of declared war or

    3 any other armed conflict which may arise between two or

    4 more of the high contracting parties, even if a state of

    5 war is not recognised by one of them. The Convention

    6 shall also apply to all cases of partial or total

    7 occupation of the territory of a high contracting

    8 party.

    9 The high contracting parties are internationally

    10 recognised states, and accordingly the Appeals Chamber

    11 has held that:

    12 "In the present state of development of the law,

    13 Article 2 of the Statute only applies to offences

    14 committed within the context of international armed

    15 conflicts."

    16 The existence of international armed conflict is

    17 defined in the International Committee of the Red

    18 Cross's commentary on Geneva Convention IV in the

    19 following terms:

    20 "There is no need for a formal declaration of war,

    21 or the recognition of the state of war, as preliminaries

    22 to the application of the Convention. The occurrence of

    23 de facto hostilities is sufficient ... Any difference

    24 arising between two states and leading to the

    25 intervention of armed forces is an armed conflict within

  50. 1 the meaning of Article 2, even if one of the parties

    2 denies the existence of a state of war. It makes no

    3 difference how long the conflict lasts, or how much

    4 slaughter takes place. The respect due to human persons

    5 as such is not measured by the number of victims."

    6 The Appeals Chamber adopted a similar view in

    7 finding that:

    8 "Armed conflict exists wherever there is resort to

    9 armed force between states ... International

    10 humanitarian law applies from the initiation of such

    11 armed conflicts and extends beyond cessation of

    12 hostilities until a general conclusion of peace is

    13 reached ... Until that moment international humanitarian

    14 law continues to apply in the whole of the territory of

    15 the warring states, whether or not actual combat takes

    16 place there."

    17 Furthermore, the Appeals Chamber confirmed the

    18 temporal and geographical requirements for the

    19 application of the Geneva Conventions by stating that:

    20 "The temporal and geographical scope of ...

    21 international armed conflict extends beyond the exact

    22 time and place of hostilities ... [for example]... each

    23 of the four Geneva Conventions contains language

    24 intimating their application beyond the cessation of

    25 hostilities."

  51. 1 In particular, in terms of Article 6 of the Geneva

    2 Convention IV, the Convention will apply from the

    3 beginning of an international armed conflict until one

    4 year has elapsed after the general close of military

    5 operations. In terms of Article 5 of Geneva Convention

    6 III:

    7 "The present convention", that is Convention III,

    8 "shall apply to the persons referred to in Article 4

    9 from the time they fall into the power of the enemy

    10 until their final release and repatriation. Should any

    11 doubt arise as to whether persons, having committed a

    12 belligerent act and having fallen into the hands of the

    13 enemy, belong to any of the categories enumerated in

    14 Article 4, such persons shall enjoy the protection of

    15 the present Convention until such time as their status

    16 has been determined by a competent tribunal."

    17 The Appeals Chamber further held that:

    18 "The grave breach provisions of the Geneva

    19 Conventions apply to the entire territory of the parties

    20 to the conflict, not just the vicinity of actual

    21 hostilities."

    22 Your Honours, it is submitted by the Prosecutor

    23 that an international armed conflict involving

    24 Bosnia-Herzegovina on the one hand, the Republic of

    25 Croatia and the self-proclaimed Croatian Community of

  52. 1 Herceg-Bosna on the other, occurred at a minimum during

    2 1993 and early 1994. During this time, the army of

    3 Croatia, the HV, intervened and were present in

    4 Bosnia-Herzegovina, and were involved in an armed

    5 conflict with the forces of Bosnia-Herzegovina. Our

    6 evidence will demonstrate that in accordance with the

    7 requirements of Article 2 of the Geneva Convention, an

    8 international armed conflict existed due to these

    9 military interventions by one state, Croatia, into

    10 another state, Bosnia-Herzegovina, and the existence of

    11 de facto hostilities, irrespective of whether any of the

    12 states involved recognised that a state of war existed

    13 between them.

    14 Further, our evidence will show that at least

    15 during 1993 the armed forces of the self-proclaimed

    16 Croatian Community of Herceg-Bosna, Croatian Community

    17 of HB, were involved in an armed conflict with the armed

    18 forces of Bosnia-Herzegovina, but the Croatian Community

    19 of HB and the HVO were sufficiently related to Croatia

    20 and its armed forces, the HV, to be regarded as a

    21 component part of one side to the international armed

    22 conflict, namely Croatia, with the armed forces of

    23 another state, Bosnia-Herzegovina. As a result of this

    24 close political and military relationship, the Croatian

    25 Community of Herceg-Bosna and the HVO can be regarded as

  53. 1 agents or as an extension of Croatia and of the Croatian

    2 army, the HV.

    3 It is significant to note at this juncture that

    4 both Croatia and Bosnia-Herzegovina were high

    5 contracting parties of the Geneva Conventions when the

    6 attack on the Lasva Valley area occurred, in that they

    7 had acceded to the four Geneva Conventions and to the

    8 two additional Protocols, on 11th May 1992 and on

    9 31st December 1992 respectively.

    10 In addition, our evidence will demonstrate that

    11 the alleged attacks in the Lasva Valley area which form

    12 the background to the detention of the Muslim prisoners

    13 in Kaonik and the alleged commission of the offences

    14 with which the accused Zlatko Aleksovski was charged

    15 occurred in the course of this particular armed

    16 conflict. The attacks involved the same parties to the

    17 aforementioned conflict. It occurred during the same

    18 time that this conflict was taking place and on the

    19 territory of Bosnia-Herzegovina. Furthermore, the

    20 accused, Zlatko Aleksovski, was linked to the Croatian

    21 side of the armed conflict and the victims, the Muslim

    22 detainees, to the Bosnia-Herzegovina side.

    23 Notably, the Appeals Chamber decision on

    24 jurisdiction in the Prosecutor v Tadic clearly stated

    25 that international humanitarian law applies from the

  54. 1 beginning of the resort to armed force inter alia

    2 between states and extends beyond cessation of

    3 hostilities to the general conclusion, peace.

    4 Accordingly, the resort to armed force between

    5 Bosnia-Herzegovina and the HV/HVO in Bosnia which

    6 commenced at least at the beginning of 1993 and

    7 concluded with the Washington Peace Agreement in March

    8 1994, can be regarded as one international armed

    9 conflict, which included the attack on the Lasva Valley

    10 area. The law applicable to international armed

    11 conflict can therefore be applied to this attack.

    12 Other conflicts had preceded this conflict, and

    13 even continued during this conflict. In certain parts

    14 of Bosnia, for example, the army of Bosnia-Herzegovina

    15 was fighting against the Bosnian Serb Army, and in other

    16 parts of Bosnia-Herzegovina, the HVO and the HV were

    17 involved in conflict against the Bosnian Serb Army,

    18 which at times also involved forces of

    19 Bosnia-Herzegovina.

    20 The Appeals Chamber in the Tadic judgement has

    21 indicated its expectation that all potential victims

    22 will be treated equally. The Appeals Chamber in the

    23 decision on jurisdiction outlined the basic rules for

    24 classifying the armed conflict in the former

    25 Yugoslavia. It concluded on the basis of interpreting

  55. 1 the Statute that resolutions of the Security Council of

    2 the International Commission of the Red Cross agreements

    3 between the various parties to the conflict:

    4 "That the conflict in the former Yugoslavia have

    5 both internal and international aspects."

    6 The conflict:

    7 "Could have been characterised as both internal

    8 and international, or alternatively, as an internal

    9 conflict alongside an international one, or as an

    10 internal conflict that had become internationalised

    11 because of external support, or as an international

    12 conflict that had subsequently been replaced by one or

    13 more internal conflicts, or some combination thereof."

    14 The perpetrators and victims of violations in this

    15 area need not have participated in the planning,

    16 ordering or commission of the military involvement of

    17 one state in another which rendered the armed conflict

    18 international, or have intentionally or knowingly

    19 contributed to such involvement. The Appeals Chamber

    20 has stated that:

    21 "It is sufficient that the alleged crimes were

    22 closely related to the hostilities occurring in other

    23 parties of the territories controlled by the parties to

    24 the conflict."

    25 As discussed below, the Geneva Conventions are

  56. 1 therefore applicable when the perpetrators and victims

    2 are recognisably linked to the different sides of the

    3 international armed conflict. The involvement of

    4 Croatia in the conflict in Bosnia-Herzegovina and the

    5 relationship between Croatia and the Croatian Community

    6 of Herceg-Bosna constitutes such a link.

    7 Notwithstanding what was said by the majority of

    8 the Trial Chamber in the Tadic case about international

    9 armed conflict, our view is that the test set down by

    10 the Trial Chamber II in the decision in the Rule 61

    11 hearing of the Prosecutor v Rajic is the correct test to

    12 be applied, when it said:

    13 "This Chamber... is required to decide whether the

    14 Bosnian Croats can be regarded as agents of Croatia for

    15 establishing subject-matter jurisdiction over discrete

    16 acts which are alleged to be violations of the grave

    17 breach provisions of the Geneva Conventions. Specific

    18 operational control is therefore not critical to the

    19 inquiry. Rather, the Trial Chamber focuses on general

    20 political and military control exercised by Croatia over

    21 the Bosnian Croats."

    22 Accordingly, it is the submission of the

    23 Prosecutor that by applying this decision to the

    24 conflict involving Bosnia-Herzegovina and Croatia and

    25 the Croatian Community of Herceg-Bosna in 1993 and early

  57. 1 1994, the conflict can be classified as international on

    2 the basis of the direct military involvement of Croatia

    3 in Bosnia-Herzegovina, and the existence of hostilities

    4 resulting therefrom, and the existence of hostilities

    5 between Bosnia-Herzegovina and the Croatian Community of

    6 Herceg-Bosna, which were very closely related to and

    7 controlled by Croatia and its armed forces.

    8 To the extent that the finding of the court on the

    9 required degree of control is to be regarded as an

    10 acceptable standard in accordance with the provisions of

    11 Rule 61, this standard has at least been satisfied in

    12 the Rule 61 hearing concerning Rajic. Croatia's

    13 involvement in the conflict in Bosnia-Herzegovina

    14 through the intervention of its own forces and its close

    15 relationship with the Croatian Community of Herceg-Bosna

    16 exhibits both the necessary degree of involvement and

    17 control to render the conflict international.

    18 The Croatian Community of Herceg-Bosna is closely

    19 related to Croatia. This relationship is different to

    20 the kind of relationship that existed between the

    21 United States and the Contra forces as was considered in

    22 the Nicaraguan case. In particular, the close political

    23 and military relationship between Croatia and the

    24 self-proclaimed Community of Herceg-Bosna has no

    25 parallel in the relationship between the United States

  58. 1 and the Contras. These distinctions are manifest in

    2 numerous ways, including the fact that Croatia and the

    3 Croatian Community of Herceg-Bosna are governed by

    4 branches of the same political party, the HDZ. The

    5 Bosnian Croats are citizens of Croatia, Croatia

    6 controlled the political life of the Croatian Community

    7 of Herceg-Bosna and removed and replaced its political

    8 leaders, such as Mate Boban. Similarly, HV and HVO

    9 generals had been appointed, promoted and transferred by

    10 Croatia, and have acted on behalf of the Croatian

    11 Community of Herceg-Bosna in establishing the federation

    12 with Bosnia-Herzegovina in March 1994.

    13 Your Honours, our evidence will show that an

    14 international armed conflict existed on the territory of

    15 the Republic of Bosnia-Herzegovina at all material

    16 times, on the basis that the HV and HVO was engaged in

    17 combat with the Bosnia-Herzegovina forces and that the

    18 HVO was under such degree of control by Croatia that it

    19 must be regarded as an agent of the Croatian

    20 government. The required level of control under

    21 international law for the purposes of applying grave

    22 breach provisions of the Geneva Conventions is not that

    23 Croatia should completely control the HVO, so that a

    24 shared unity of identity between the two can be

    25 established.

  59. 1 Furthermore, in the case of the military and

    2 paramilitary activities in and against Nicaragua, to the

    3 extent that it is applicable, did not require the

    4 existence of unity of identity. Instead, the standard

    5 laid down was:

    6 "Whether the relationship was so much one of

    7 dependence on the one side and control on the other that

    8 it would be right to equate the Contras, for legal

    9 purposes, with an organ of the United States government,

    10 or as acting on behalf of that government."

    11 It is submitted by the Prosecution, your Honours,

    12 that the application of this rule to the conflict

    13 between Bosnia and Croatia and the Croatian community of

    14 Herceg-Bosna renders the conflict international.

    15 The presence of the armed forces of Croatia in

    16 BiH. The military intervention of the Croatian armed

    17 forces into the territory of Bosnia-Herzegovina in 1993

    18 and early 1994 and including the period of the attack on

    19 the Lasva Valley area is evidenced by various

    20 resolutions and reports of the United Nations.

    21 On 18th January 1993, the Secretary General noted

    22 that the earlier resolutions of the General Assembly

    23 demanding that Croatia withdraw its troops from

    24 Bosnia-Herzegovina had not been observed. The statement

    25 by the President of the Security Council on 10th May

  60. 1 1993 called upon Croatia to adhere strictly to its

    2 obligations under Security Council Resolution 752 of

    3 15th May 1992, that had demanded an end to all

    4 hostilities and interference in Bosnia-Herzegovina by

    5 elements of the Croatian army, but which had still not

    6 been fulfilled. The Secretary General's report of

    7 1st February 1994 indicated that there were

    8 approximately 3,500 regular Croatian HV troops in

    9 Bosnia-Herzegovina. The Security Council Presidential

    10 statement, issued on 3rd February 1994, strongly

    11 condemned Croatia for deploying elements of its army and

    12 heavy military equipment in central and southern parts

    13 of Bosnia-Herzegovina and demanded that they be

    14 withdrawn.

    15 The Secretary General's report to the Security

    16 Council of 17th February 1994 noted that some 5,000

    17 Croatian army troops remained in Bosnia-Herzegovina,

    18 despite the Council's demand for their withdrawal. The

    19 Secretary General's report of 16th March 1994 noted the

    20 continuing involvement of Croatia's army in central and

    21 southern Bosnia-Herzegovina.

    22 All of the aforementioned United Nations

    23 resolutions and reports explicitly and implicitly

    24 describe the nature of the HV, the Croatian military

    25 force's involvement in Bosnia-Herzegovina. In the

  61. 1 context of condemning the HV's presence in

    2 Bosnia-Herzegovina, certain explicit references were

    3 made to killing, torturing and illegally detaining

    4 Muslim civilians. The general hostilities between

    5 Muslims and Croats in Bosnia-Herzegovina were also

    6 mentioned and in this context specific attacks were

    7 reported, such as on Mostar and on Vitez.

    8 Furthermore, the location in Bosnia-Herzegovina

    9 where it is reported that HV troops were deployed, and

    10 the use of terms like "hostilities", "violence",

    11 "interference" and "violations of international

    12 humanitarian law", in the course of demanding the

    13 withdrawal of the HV from Bosnia-Herzegovina, imply that

    14 the HV was involved in an armed conflict with the armed

    15 forces of Bosnia-Herzegovina.

    16 In addition, the conflict between the HV and

    17 various Serb forces are consistently reported separately

    18 from the involvement of the Croatian forces in

    19 Bosnia-Herzegovina.

    20 The United Nations resolutions and reports were

    21 preceded by numerous demands by the Security Council and

    22 General Assembly during 1992 for Croatia to withdraw its

    23 troops from Bosnia-Herzegovina. During this period, the

    24 HV and the HVO had united with the Bosnia-Herzegovina

    25 forces against the JNA and the Serb armed forces. The

  62. 1 military alliance was short-lived as tensions between

    2 the various parties began to emerge as early as May

    3 1992. During 1993, an armed conflict broke out between

    4 the Bosnia-Herzegovina forces and the closely aligned HV

    5 and HVO over the control of various territories in

    6 Bosnia-Herzegovina, including the self-proclaimed

    7 Croatian Community of Herceg-Bosna, which asserted their

    8 autonomy from BiH and allegiance to Croatia.

    9 On 16th April 1993, the HVO attacked the

    10 predominantly Muslim village of Ahmici, killing scores

    11 of unarmed civilians and destroying Muslim homes. On

    12 9th May 1993, Mostar was attacked, and later fighting

    13 erupted in the municipalities of Stolac, Kiseljak,

    14 Busovaca, Capljina, Vitez and Novi Travnik. By

    15 23rd February 1994, Croatia, the Bosnian Croats and the

    16 government of Bosnia-Herzegovina had signed a cease-fire

    17 agreement, and on 18th March 1994, Bosnia-Herzegovina

    18 and the Croatian Community of Herceg-Bosna had entered

    19 into a confederation.

    20 Turning now to the political and military

    21 relationship between Croatia and the Croatian Community

    22 of Herceg-Bosna, the very close political and military

    23 relationship between the Croatian Community of

    24 Herceg-Bosna and Croatia and the degree of control

    25 exercised by Croatia over the Croatian Community is

  63. 1 evidenced in a variety of ways. From its inception, the

    2 Croatian Community of Herceg-Bosna openly associated

    3 itself with Croatia. The Croatian Democratic Union, the

    4 HDZ, was the governing party in both Croatia and the

    5 Croatian Community of Herceg-Bosna. The declaration on

    6 18th November 1991 that established the Croatian

    7 Community of Herceg-Bosna stated that the Bosnian Croats

    8 were in alliance with the HDZ ruling party of Croatia.

    9 The declaration designated seven municipalities in

    10 Bosnia-Herzegovina as part of the Croatian Community of

    11 Herceg-Bosna. These municipalities encompassed the

    12 Herzegovinian region of Bosnia, which has historically

    13 been the focus of Croatian nationalism in Bosnia, being

    14 geographically and politically aligned to Croatia.

    15 Although one of the main stated reasons for the

    16 formation of the Croatian Community of Herceg-Bosna was

    17 initially to defend Croats against Serbs and the JNA,

    18 the emphasis shifted during 1992 to the defence of

    19 Croatians living in Bosnia-Herzegovina. This objective

    20 was reflective of emerging political policies at the

    21 highest levels. President Tudjman of Croatia, having

    22 initially recognised the independence of

    23 Bosnia-Herzegovina, had stated publicly on a Zagreb

    24 radio broadcast on 6th July 1992 that Bosnia-Herzegovina

    25 should be divided into three constituent nations on a

  64. 1 cantonal basis.

    2 His declaration had been preceded in early 1992 by

    3 the removal of Stjepan Klujic, a supporter of an

    4 independent Bosnia-Herzegovina, who was opposed to the

    5 division of Bosnia-Herzegovina along ethnic lines, as

    6 the President of the HDZ of Bosnia. Klujic was replaced

    7 by Mate Boban, who supported Croatian involvement in

    8 Bosnia-Herzegovina. This appointment laid the basis for

    9 the development of a very close political relationship

    10 during 1993 between the governments of Croatia and the

    11 Croatian Community of Herceg-Bosna, which was centred on

    12 ethnic division of Bosnia-Herzegovina.

    13 Mate Boban was later to be removed from office by

    14 President Tudjman during the negotiations for the

    15 formation of a confederation between Bosnia-Herzegovina

    16 and the Croatian Community of Herceg-Bosna at the

    17 beginning of 1994, only to be appointed by President

    18 Tudjman as director of the INA, a national oil company

    19 in Croatia.

    20 The very strong links between Croatia, the

    21 Croatian Community of Herceg-Bosna and the Bosnian

    22 Croats were manifest in the decision by Croatia to grant

    23 citizenship to all Bosnian Croats on 7th April 1992,

    24 when it recognised the existence of the Republic of

    25 Bosnia-Herzegovina. It entitles Bosnian Croats to the

  65. 1 benefits of residence in Croatia and the right to vote

    2 in elections in Croatia, which they exercised in October

    3 1995.

    4 Further, the level of control exercised by Croatia

    5 over the Croatian Community of Herceg-Bosna was

    6 confirmed by the calls of the United Nations for

    7 President Tudjman to control activities of the Bosnian

    8 Croats and the HVO. The Secretary General's report of

    9 30th April 1993 noted that President Tudjman had agreed

    10 to use his influence to ensure that those responsible

    11 for the acts of inhumanity which had occurred in Vitez

    12 be punished. The statement of the President of the

    13 Security Council of 10th May 1993 which called upon

    14 Croatia to withdraw troops from Bosnia-Herzegovina also

    15 called upon Croatia to exert all its influence on the

    16 Bosnian Croat leadership; to immediately cease attacks,

    17 particularly in the areas of Mostar, Jablanica and

    18 Dreznica.

    19 Again, the statement of the President of the

    20 Security Council of 14th September 1993, shortly before

    21 the attack on Stupni Do, asserted that the government of

    22 Croatia has a responsibility to use its influence with

    23 Bosnian Croats to secure compliance with Security

    24 Council demands concerning the treatment of detainees in

    25 detention camps in Bosnia-Herzegovina.

  66. 1 These calls were reiterated by the many countries,

    2 including the United States, who demanded that Croatia

    3 suspend its support for the Bosnian Croats, following

    4 the attacks on the Muslim civilian population by the

    5 HVO. The Croatian government has also repeatedly acted

    6 on behalf of the Croatian Community of Herceg-Bosna in

    7 negotiating cease-fires and settlement agreements,

    8 including the Federation agreement between

    9 Bosnia-Herzegovina and the Croatian Community of

    10 Herceg-Bosna, which was concluded on 18th March 1994.

    11 Similarly, the close association between the armed

    12 forces of Croatia and the Croatian Community of

    13 Herceg-Bosna and the substantial control the HV exerted

    14 over the HVO began when the HVO was created on 8th April

    15 1992 as the supreme defence body of the Croatian

    16 Community of Herceg-Bosna, with the stated objective of

    17 defending the Croatian population and culture in

    18 Bosnia-Herzegovina.

    19 Herzegovinian Croats in Croatia were instructed by

    20 the Croatian authorities to return and join the HVO.

    21 Many Croatian soldiers who were not born in Herzegovina

    22 also joined the HVO, although in most cases Croatian

    23 soldiers from Croatia all wore HVO, not HV insignia.

    24 This initiative developed from earlier relations between

    25 the two groupings and many Herzegovinian Croats had

  67. 1 joined the police forces and the National Guard Corps in

    2 Croatia to defend Croatia against the Krajina Serbs

    3 during the armed conflict of 1990/1991. During 1992, a

    4 common campaign was waged by the HV and HVO to defend

    5 Croatia and the Croatian Community of Herceg-Bosna from

    6 the Serbs and the JNA. These close relations, and in

    7 particular the HV control over the HVO, were continued

    8 into the armed conflict in Bosnia-Herzegovina, at least

    9 during 1993 and early 1994.

    10 As is evidenced by the above-mentioned

    11 United Nations resolutions and reports and the various

    12 other sources, the HV troops that were operating in

    13 Bosnia-Herzegovina during the conflict with the Serb

    14 forces and the JNA were not withdrawn from

    15 Bosnia-Herzegovina. They remained involved militarily

    16 during the conflict that emerged against the Bosnian

    17 armed forces, even though in many cases HV insignia were

    18 exchanged for those of the HVO.

    19 Confirmation of the HV's continued intervention in

    20 Bosnia-Herzegovina is evidenced by the Secretary

    21 General's report of 1st February 1994, where it

    22 indicated that the HV had been directly supporting the

    23 HVO with manpower, equipment and weapons for some time.

    24 The number of HV soldiers had apparently increased,

    25 following successful offensives of the Bosnian

  68. 1 government forces against the HVO. It was assessed that

    2 there was approximately 3,000 to 5,000 forces.

    3 To the extent to which the HVO is to be regarded

    4 as part of the HV is illustrated by the various

    5 appointments and transfers between the two armies. The

    6 HVO was both the Bosnian Croat army and the Bosnian

    7 Croat administration. During the relevant period, the

    8 HVO chief of staff or army commander was General

    9 Petkovic, an HV army officer from Croatia. During the

    10 relevant period, Goojko Susak, the Croatian Minister of

    11 Defence, exercised effective control over the HVO and

    12 General Petkovic; and General Praljak, the HV General

    13 from Croatia, also exercised control over HV forces.

    14 The Croatian government openly supported the

    15 activities of the HVO. On 14th March 1994, President

    16 Tudjman of Croatia signed the Washington Agreement with

    17 President Izetbegovic and the Bosnian Croat leader

    18 Zubakehic, which resulted in the Bosnian Croat Muslim

    19 federation. On 1st February 1995, General Martin

    20 Spegelj, former chief of the Croatian armed forces, said

    21 the war against the Muslims cost Croatia 3 million

    22 Deutschmarks per day. In an earlier statement in 1993,

    23 he said Croatia had sent more weaponry into Bosnia than

    24 it had retained in Croatia. In late 1994 for example,

    25 the HVO General, Petkovic, was moved to the post of HV

  69. 1 commander in Osijek, and in November 1995, General

    2 Blaskic, the commander of the HVO, was appointed as

    3 Inspector in the general inspection of the HV by

    4 President Tudjman.

    5 To summarise, your Honours, the basis for the

    6 Prosecution's submission that Croatia was engaged in

    7 international armed conflict with Bosnia at the relevant

    8 time is firstly that the Croatian armed forces, the HVO,

    9 were engaged in combat with Bosnian armed forces in

    10 Bosnia, and secondly that the Bosnian Croat entity was

    11 under such a degree of control by Croatia that it must

    12 be regarded as an arm or agent of the Croatian

    13 government. The Prosecution will provide evidence for

    14 the position that Croatia controlled the Bosnian Croats

    15 and hence demonstrate that Croatia had its armed forces,

    16 the HV, be regarded as a component part of one side of

    17 the international armed conflict when it was in conflict

    18 with the other part, namely Bosnia-Herzegovina.

    19 The next requirement is that:

    20 "The offences under Article 2 can only be

    21 prosecuted when perpetrated against persons who are

    22 properly regarded as 'protected' by the Geneva

    23 Conventions under the conditions set out by the

    24 Conventions themselves."

    25 Article 4 of the Geneva Convention IV defines

  70. 1 protected persons as:

    2 "Those who, at a given moment and in any manner

    3 whatsoever, find themselves in the case of a conflict or

    4 occupation, in the hands of a party to the conflict or

    5 occupying power of which they are not nationals."

    6 Article 4 of Geneva Convention III defines

    7 prisoners of war who must be protected as:

    8 "Prisoners of war, in the sense that they are

    9 persons belonging to one of the following categories who

    10 have fallen into the power of the enemy:

    11 "(1) members of the armed forces of a party to the

    12 conflict as well as members of militias or volunteer

    13 corps."

    14 Also, members of other militias or other volunteer

    15 corps belonging to a party operating in or outside their

    16 own territory, provided that certain conditions are

    17 met: such that they are commanded, they have distinctive

    18 signs, they carry arms openly and that they conduct

    19 their operations according to the laws and customs of

    20 war, and members of regular armed forces who profess

    21 allegiance to a government or authority not recognised

    22 by the detaining power.

    23 The Prosecution evidence will demonstrate that the

    24 victims in the present case were protected persons

    25 either under Article 4 of Geneva Convention III or

  71. 1 Article 4 of Geneva Convention IV in that they were

    2 either prisoners of war or they were civilians.

    3 Your Honours, the Prosecution submits that grave

    4 breaches must take place during an international armed

    5 conflict. Furthermore, the accused must be associated

    6 with one side of the international conflict, whereas the

    7 victims must be protected. Accordingly, they, the

    8 victims, have to be linked to the other party involved

    9 in the international armed conflict. In the present

    10 case, the requirements entail Bosnia-Herzegovina being

    11 one party and Croatia, and the Croatian Community of

    12 Herceg-Bosna closely related to and under the control of

    13 Croatia, being the other.

    14 The Prosecutor submits that the grave breaches

    15 with which the accused Aleksovski is charged occurred

    16 during this international armed conflict. Several of

    17 the Muslim victims who were unlawfully contained and

    18 mistreated at the Kaonik prison are protected persons in

    19 that they are civilians who were connected on the basis

    20 of the Bosnian nationality to the Bosnia-Herzegovina

    21 side of the conflict, and they were in the hands of the

    22 other party to the conflict.

    23 The International Committee of the Red Cross

    24 commentary on the Geneva Convention states that:

    25 "The expression 'in the hands of' is used in an

  72. 1 extremely general sense ... the expression ... need not

    2 necessarily be understood in the physical sense; it

    3 simply means that the person is in territory under the

    4 control of the power in question."

    5 Accordingly, the civilian victims became protected

    6 persons when they came under the control of the HVO

    7 forces in the Lasva Valley area and were forcibly

    8 transferred to Kaonik prison under the command of Zlatko

    9 Aleksovski.

    10 The punishable grave breaches of the Geneva

    11 Conventions are listed in Article 130 of the third

    12 convention and include wilful killing, torture, inhumane

    13 treatment, wilfully causing great suffering and wilfully

    14 causing serious injury to body and health. Article 147

    15 of the Geneva Convention IV also lists these acts as

    16 grave breaches.

    17 Your Honours, our evidence will show that at least

    18 some of the detainees were civilians and that they were

    19 non-combatants belonging to Bosnia-Herzegovina who had

    20 fallen into the hands of the HV/HVO and were clearly not

    21 members of the other party to the conflict, namely

    22 Croatia. In particular, they had not taken up arms,

    23 were not carrying arms openly during the military

    24 operations concerned. Many of them were unarmed and

    25 surrendered immediately upon the advance of the HVO

  73. 1 Armed Forces. Accordingly, they cannot be regarded as

    2 prisoners of war under Geneva Convention III, but are

    3 protected civilians by Article 4 of Geneva Convention

    4 IV.

    5 All of the victims in this case are protected

    6 under various provisions of international humanitarian

    7 law which are embodied in Articles 2 and 3 of the

    8 Statute with which the accused has been charged. There

    9 is no conceivable situation in which the victims in the

    10 present case are not protected by rules of international

    11 humanitarian law which are punishable under the Statute

    12 of the Tribunal. There is a wide spectrum of

    13 applications under international humanitarian law that

    14 cover the victims in the present case. If one of them

    15 does not apply to the victims or a certain group of

    16 them, another will be applicable.

    17 Finally, your Honours, dealing with protection

    18 under Article 3 of the Statute, the victims are also

    19 protected under Article 3. A violation of Article 3 of

    20 the Statute is to breach the rules contained in common

    21 Article 3 of the Geneva Conventions, which apply during

    22 all armed conflicts, whether international or internal.

    23 The Appeals Chamber in its decision on the Defence

    24 motion for interlocutory appeals on jurisdiction in the

    25 Tadic decision on jurisdiction held that:

  74. 1 "At least with respect to the minimum rules of

    2 common Article 3, the character of the conflict is

    3 irrelevant."

    4 The provisions of common Article 3 are as follows,

    5 that in the case of an armed conflict not of an

    6 international character, persons taking no part in the

    7 activities, and it lists them there, fall under the

    8 general protection of that provision and then

    9 specifically, the following acts are deemed to always

    10 remain prohibited: violence to life, the taking of

    11 hostages, outrages upon personal dignity and the passing

    12 of a sentence, in circumstances other than by a

    13 regularly constituted court.

    14 Accordingly, during any armed conflict, the

    15 victims in the present case are protected by these

    16 provisions in circumstances related to the armed

    17 conflict, if they do not take part in hostilities, from

    18 the moment they are no longer to take part in

    19 hostilities, irrespective of their nationality.

    20 Furthermore, during an international armed

    21 conflict, the nationals of the detaining power are

    22 protected by Article 75 of Additional Protocol 1, 1977.

    23 This protocol is applicable to Bosnia-Herzegovina and

    24 Croatia. The Socialist Federal Republic of Yugoslavia

    25 ratified the Geneva Conventions in 1950 and the

  75. 1 additional protocols on 11th June 1979.

    2 Bosnia-Herzegovina acceded to the Geneva Conventions and

    3 Additional Protocols on 31st December 1992, and these

    4 accessions were backdated to its asserted date of

    5 independence, 6th March 1992, when Bosnia-Herzegovina

    6 succeeded the SFRY.

    7 The Vienna Convention on Succession of States in

    8 Respect of Treaties states in Article 34(1)(a) that:

    9 "Any treaty in force at the date of succession of

    10 states in respect of the entire territory of the

    11 predecessor state continues in force in respect of each

    12 successor state."

    13 Although this Convention is not in force, it

    14 reflects, in our submission, customary international

    15 law.

    16 Article 75 of Additional Protocol 1 1997 is

    17 similar in its prohibitions in relating to what can and

    18 cannot be done with people that fall into the hands of a

    19 party to the conflict. Violations of this provision are

    20 covered by Article 3 of the Statute in accordance with

    21 the Appeals Chamber's decision in its decision on

    22 jurisdiction on Article 3 when it said:

    23 "Article 3 is a general clause covering all

    24 violations of international humanitarian law not falling

    25 under Article 2 or covered by Articles 4 or 5, more

  76. 1 specifically: ... (ii) infringements of the provisions

    2 of the Geneva Conventions other than those classified as

    3 'grave breaches' ... (iv) violations of agreements

    4 binding upon the parties to the conflict, qua treaty

    5 law."

    6 In this regard, it is important to note that the

    7 International Committee of the Red Cross commentary

    8 refers to Article 75 as a:

    9 "'Mini Convention' ... which will certainly

    10 facilitate the dissemination of humanitarian law and the

    11 promulgation of its fundamental principles."

    12 In addition, the other leading commentary on the

    13 protocols states:

    14 "In all cases, Article 75 has to be applied to a

    15 Party's own nationals if they have acted in favour of

    16 the adversary and are made responsible for such acts by

    17 the authorities of their own state ... a highly

    18 important field of application of the minimum guarantees

    19 would arise when a civil war is connected with an

    20 international armed conflict and the nationals of a

    21 State are joining the forces of both sides."

    22 Your Honours, with respect to possible defences

    23 that may be raised in this case, at the outset it should

    24 be noted that no specific defences are listed in the

    25 Statute, but the Secretary General's report commenting

  77. 1 on Article 7 of the Statute at paragraph 58 states:

    2 "The International Tribunal itself will have to

    3 decide on various personal defences which may relieve a

    4 person of individual criminal responsibility, drawing

    5 upon general principles of law."

    6 This statement is applicable to all possible

    7 defences that might be raised by the Defence.

    8 In accordance with the International Law

    9 Commission's Draft Code of Crimes Against the Peace and

    10 Security of Mankind, which provides in Article 14 that:

    11 "The competent court shall determine the

    12 admissibility of defences in accordance with the general

    13 principles of law in the light of the character of each

    14 crime."

    15 The Commentary on this provision notes that there

    16 are two criteria which must be taken into account when

    17 making the determination as to whether a defence is

    18 permissible:

    19 "First, the court must consider the validity of

    20 the defence raised by the accused under general

    21 principles of law. This first criterion limits the

    22 possible defences to those defences that are well

    23 established and widely recognised as admissible with

    24 respect to similarly serious crimes under national or

    25 international law. Second, the court must consider the

  78. 1 applicability of the defence to the crime with which the

    2 accused is charged, in light of the character of the

    3 crime."

    4 It is submitted, your Honours, that these factors

    5 should be taken into account when determining whether

    6 any of the possible defences that may be raised by the

    7 Defence are valid.

    8 Your Honours, the accused Aleksovski's statements

    9 to date do not indicate any defences. He never acted or

    10 even claimed to have acted under superior orders or

    11 duress. He never disagreed or gave the impression to

    12 disagree with his superior orders; he did not feel

    13 uneasy in his role or distance himself from what he knew

    14 to be violations of the Geneva Conventions. He

    15 acknowledged his responsibilities.

    16 Your Honours, in the event that it is determined

    17 that the defence of duress, for example, whether in the

    18 context of superior orders or not, could constitute a

    19 defence, other than when it involves the killing of

    20 innocent human beings, the evidence presented by the

    21 Prosecutor in this case will clearly demonstrate that

    22 the accused does not satisfy the strict requirements of

    23 this defence.

    24 It is to no avail that the extent of the

    25 violations which did occur in the camp while the accused

  79. 1 Aleksovski was commander were less than the detainees

    2 might have been exposed to if he had not been the

    3 commander. Zlatko Aleksovski is a professional, he has

    4 a sociology degree, he was active in the penal system in

    5 the former Yugoslavia before he took over as commander

    6 of the Kaonik prison. He may contend that when he

    7 arrived in Kaonik he brought his professional skills and

    8 expertise, and attempted to clean up the camp. His

    9 defence could be that he did everything within his

    10 powers to control and improve the circumstances of the

    11 prisoners; presumably he could say that the detainees

    12 would have been in a worse position if he had not been

    13 there.

    14 To the extent, your Honours, that the accused

    15 Aleksovski might argue that he had no choice but to

    16 remain in command of the camp and that he did all in his

    17 power in the circumstances to avoid endangering the

    18 detainees, it is submitted, your Honours, that this is

    19 in direct conflict with the evidence, it is speculative

    20 and is not made out.

    21 It is submitted that none of the violations, or

    22 the failure to prevent or punish them, alleged in the

    23 present indictment can be justified on the grounds that

    24 they prevented some greater harm occurring which has not

    25 been specified. No choice of evils existed and the

  80. 1 crimes committed were certainly not lesser evils.

    2 Your Honours, in conclusion, I have gone to some

    3 lengths to set out the law as it applies to this case.

    4 The case is of a more narrow focus than other cases that

    5 have come before this Tribunal, and in some respects,

    6 the crimes that will be dealt with are not as egregious

    7 or widespread as may have occurred in other cases that

    8 have come before this Tribunal. I am sure that once you

    9 have heard all the evidence, you will have no doubt in

    10 finding the accused guilty as charged. The Prosecution

    11 evidence will clearly prove all of the elements of the

    12 charges beyond a reasonable doubt.

    13 War in any of its manifestations is evil. It is

    14 the curse of mankind that darkens our very existence.

    15 Struggle as we may, we cannot seem to rid ourselves of

    16 this horror. However, for our purposes, war is not

    17 illegal, so with that issue we are not concerned. What

    18 can be illegal, however, is what occurs during the

    19 course of war. If we cannot outlaw war then no doubt

    20 the next best thing is to control how war is waged.

    21 Therefore, in our submission, we should be vigilant to

    22 apply what law we have to ameliorate the agony of this

    23 odium.

    24 We urge your Honours to extend to this accused all

    25 that is fair and just in order that he might receive a

  81. 1 fair trial, but at the same time we ask you not to lose

    2 sight of the suffering that has been inflicted upon the

    3 innocent victims of this crime.

    4 Thank you, your Honours. Your Honours,

    5 I mentioned in the course of my address, and draw

    6 your Honours' attention to certain maps which may assist

    7 your Honours if I was to make them available to you, so

    8 at this stage or immediately before we commence --

    9 I could do it now or later, but they are available to be

    10 tendered to your Honours.

    11 JUDGE RODRIGUES: Does the Defence have any questions to

    12 make regarding the maps?

    13 MR. MIKULICIC: Your Honours, the Defence has no questions

    14 regarding the maps as we are familiar with the contents

    15 of these maps, we were familiarised with them before the

    16 beginning of trial.

    17 MR. NIEMANN: I am indebted to my friend, your Honours.

    18 I will tender those maps now. I believe they have been

    19 made available to the Registrar. Perhaps they could be

    20 given Prosecution exhibit numbers in order. I referred

    21 to them as A1/1 -- perhaps they could be just numbered

    22 Prosecution Exhibit 1, 2 and following, according to the

    23 booklet. We have also made them available to

    24 your Honours for your Honours to have a personal copy.

    25 JUDGE RODRIGUES: Thank you very much, Mr. Prosecutor. I was

  82. 1 about to ask the Defence whether they intend to make an

    2 opening statement now or in the afternoon after lunch.

    3 MR. MIKULICIC: The Defence agrees with your proposal, your

    4 Honour.

    5 JUDGE RODRIGUES: Therefore we are going to have a lunch

    6 break now and we will resume work at 2.30. Are you

    7 agreeable? Thank you.

    8 (1.05 pm)

    9 (Adjourned until 2.30 pm)

















  83. 1 (2.30 pm)

    2 JUDGE RODRIGUES: We can now resume our hearing, and give

    3 the floor to Mr. Mikulicic.

    4 MR. MIKULICIC: Thank you, your Honours. First of all, allow

    5 me to say good afternoon to all of you at the beginning

    6 of this trial, and to voice my gratitude that the trial

    7 started even a little earlier than we had originally

    8 expected.

    9 The Defence, pursuant to the provisions of Article

    10 84 of the Rules of Procedure, Rule 84, avails itself of

    11 its right to speak in connection with the impending

    12 trial, and this opening statement will be shorter than

    13 was that of my learned colleague, the Prosecutor.

    14 The Defence wishes to thank our learned colleague

    15 the Prosecutor for the obvious effort made in his

    16 opening statement to specify certain facts linked to the

    17 actual indictment. Your Honours, the statement of the

    18 Defence may perhaps be rather unusual as compared to

    19 what is usually expected, but this is due to the fact

    20 which the Defence wishes to draw attention to, since the

    21 very initial appearance of this accused before the Trial

    22 Chamber.

    23 As has already been underlined, it is the view of

    24 the Defence that the indictment suffers from serious

    25 shortcomings which are not of a formal but of a

  84. 1 substantive nature. Among those, it is particularly

    2 worth underlining that the indictment does not specify

    3 those facts which would be relevant with regard to the

    4 possible responsibility of the accused, nor those facts

    5 which would be relevant with regard to the form and the

    6 degree of the alleged culpability of the accused.

    7 It is the position of the Defence that the

    8 accused's behaviour has not been described in detail,

    9 the kind of behaviour that would entail criminal

    10 responsibility. In the desire to avoid repeating the

    11 substantive positions of the Defence regarding the

    12 charges which were elaborated in the motion of 19th June

    13 1997, on this occasion the Defence counsel would like to

    14 highlight in particular the fact that the accused had,

    15 from the beginning ab initio been placed in an unequal

    16 position with regard to his fundamental rights

    17 guaranteed by the Statute, and specifically Article 21,

    18 paragraph 4(B) and (C) of the Statute, which states, and

    19 allow me to remind your Honours of this Article, that

    20 the accused must have sufficient time and facilities for

    21 the preparation of his Defence and to communicate with

    22 counsel of his own choosing, and that he has to be tried

    23 without undue delay.

    24 Proceeding from this, the Defence counsel wishes

    25 to draw attention to the fact that the accused in the

  85. 1 realisation of these rights was not in a position to

    2 organise his Defence in an adequate manner, for the

    3 simple reason that the indictment itself did not

    4 indicate any specific criminal behaviour or offences

    5 because the indictment was drafted in generalised terms

    6 and without specifying individual criminal offences.

    7 However, the Defence certainly expects in the

    8 course of the trial proceedings themselves and the

    9 evidence that will be presented by the Prosecution that

    10 the generalised incriminations will be individualised,

    11 or that the Prosecution will act in accordance with the

    12 provisions of Rule 51 of the Rules of Procedure, and

    13 withdraw the indictment against the accused.

    14 The Defence will insist on the principle, and

    15 rigorous implementation of the principle, of direct

    16 evidentiary material as the generally accepted legal

    17 standard for an objective trial, and will emphatically

    18 oppose any attempt to apply analogy with the aim of

    19 proving certain facts which might be relevant for the

    20 possible responsibility of the accused. In any event,

    21 the Defence will, in its case, when presenting evidence

    22 in favour of the accused, will without any doubt prove

    23 that the accused is not responsible for any one of the

    24 counts in the indictment.

    25 The Defence counsel sincerely believes that it

  86. 1 will be in a position to persuade your Honours of the

    2 innocence of the accused, but on condition that it has

    3 the possibility to respect the fundamental rights of the

    4 accused which are envisaged not only by the Statute of

    5 this Tribunal but which are generally accepted in the

    6 legal norms of civilised society.

    7 One of those fundamental rights of the accused is

    8 certainly the right to complete an unlimited, and

    9 I underline the word unlimited, communication with his

    10 Defence counsel, in the interest of preparing the

    11 Defence. Allow me to remind you and refer to Rule 67

    12 regarding the Rules of Detention, which indicates that

    13 every suspect will have the right to complete and

    14 unlimited communication with his Defence counsel.

    15 Unfortunately, this fundamental right of the

    16 accused has been seriously impaired by the decision of

    17 the authorities of the Kingdom of the Netherlands,

    18 pursuant to which, the Defence counsel is not allowed

    19 access to the detention facilities of the United Nations

    20 after 5.00 pm. This situation illustrates the fact that

    21 the Defence counsel, after the completion of the hearing

    22 in court, is simply unable to contact his client to

    23 summarise the evidence presented and to engage in

    24 preparations for the next day of hearings. This, of

    25 course, is not possible the following morning of the

  87. 1 next day of hearings, because again no access is allowed

    2 to the detention facility before 8.00 am, and after that

    3 time, the accused is brought to the premises of the

    4 Tribunal.

    5 Therefore, the Defence counsel does not have a

    6 chance in the course of the trial days to have any

    7 contact with his client except for a few minutes in the

    8 breaks during the actual hearings. Such a situation

    9 quite obviously limits and even undermines the

    10 fundamental right to unlimited communication with the

    11 defendant in the interests of the preparation of the

    12 Defence.

    13 The Defence counsel wishes to recall that the

    14 United Nations detention facility was established as an

    15 instrument of this Tribunal and that in that capacity,

    16 the Tribunal, or rather the Trial Chamber, is fully

    17 authorised to use its authority in order to protect the

    18 rights of the accused. I wish to remind your Honours of

    19 Rule 2 of the Rules of Detention, which states all

    20 detainees under the exclusive jurisdiction of the

    21 Tribunal, throughout their period of detention, and the

    22 director of the detention facility is also under the

    23 authority of the Tribunal and that he is the only one

    24 responsible for all aspects of detention.

    25 I remind Rule 3 of those Rules of Detention, it

  88. 1 says that a team of experienced inspectors will be

    2 formed who will ensure management of detention in

    3 accordance with the Rules and will protect the

    4 individual rights of the detainees, and in this context,

    5 the right to unlimited contact with the accused is

    6 particularly underlined.

    7 The Defence has no doubts regarding the highest

    8 legal standards that are being applied in this Tribunal,

    9 and which will certainly in future be applied in this

    10 Trial Chamber as well, and for this very reason, and

    11 primarily in order to protect the fundamental rights of

    12 the accused to unhindered communication with his

    13 counsel, the Defence on this occasion expects, proposes

    14 and requests that your Honours, the members of this

    15 Trial Chamber, should without any further delay ensure

    16 the implementation and observance of the mentioned

    17 rights of the accused in accordance with Rule 6 of the

    18 principles that we have just cited.

    19 The Defence is aware of the complexity of the

    20 situation we have referred to, the ultimate outcome of

    21 which is a substantive limitation of the rights of the

    22 accused, but the Defence would like to underline that

    23 any further prolongation of the status quo constitutes a

    24 further lack of respect for the rights of the accused.

    25 Defence counsel views that this problem, in spite of all

  89. 1 efforts by the Trial Chamber, will not lend itself to a

    2 prompt solution. Nevertheless, the public hearing has

    3 started and in view of the circumstance of the limited

    4 right of the accused to have unlimited contact with his

    5 counsel, due to this and not only because of this, the

    6 Defence counsel today in this courtroom and before this

    7 respected Trial Chamber, and referring to Article 65 of

    8 the Rules of Procedure, wishes to make a request for the

    9 provisional release of the accused, Zlatko Aleksovski,

    10 and this request will be argued by my learned

    11 co-counsel.

    12 MR. JOKA: Your Honours, continuing where my colleague left

    13 off, I would like to say that the intention of the

    14 Defence in any event was to come up with this proposal,

    15 taking into account the fact -- the problem raised by my

    16 colleague, so pursuant to Rule 65 of the Rules of

    17 Procedure and Evidence, and pursuant to the precedents

    18 already existing, we move for the provisional release of

    19 our client, Zlatko Aleksovski.

    20 This motion is based on the following and, in our

    21 view, incontrovertible facts. First, Zlatko Aleksovski

    22 was arrested on 8th June 1996 at 8.30 pm by the Croatian

    23 police, and on the basis of the request by this

    24 Tribunal, and the constitutional provision on the

    25 co-operation of the Republic of Croatia with the

  90. 1 International Criminal Tribunal of 19th April 1996, and

    2 pursuant to these provisions, Zlatko Aleksovski has been

    3 in the custody of the International Criminal Tribunal

    4 since 28th April 1997.

    5 Second, the indictment against Zlatko Aleksovski,

    6 in its scope of the charges and its legal foundation,

    7 points without our claims to try to compare it to the

    8 indictments of the others, is peripheral to the events

    9 in Central Bosnia in early 1993. Based on this, the

    10 Defence will show that in the case of Zlatko Aleksovski,

    11 cumulatively speaking, all four conditions in 65(B) are

    12 satisfied and that is (A) exceptional circumstances, the

    13 certainty that the accused will appear for trial; (C)

    14 that the accused will not pose a danger to any victim,

    15 witness or other person; and (D), the position of the

    16 host country. So let me proceed in that very order.

    17 (A); the issue is whether the special

    18 circumstances do or do not exist. In this context, we

    19 will point to several elements. One is the length of

    20 the detention. I want to point out that until today,

    21 Zlatko Aleksovski has been detained 582 days. I think

    22 that this number in itself speaks very vocally, so no

    23 additional explanations are needed there.

    24 Next I want to point out to the health conditions

    25 of Zlatko Aleksovski. Even while in Republic of

  91. 1 Croatia, he was treated for various health problems;

    2 circulation, problems with blood pressure, spine,

    3 et cetera. These are all conditions that do not lend

    4 themselves to successful treatment in the conditions of

    5 detention. On the other hand, upon his arrival in

    6 The Hague, additional health conditions arose,

    7 especially psychological ones. They are manifested

    8 through insomnia, nervousness, headaches, perspiration,

    9 loss of appetite and I should like to just mention to

    10 the Trial Chamber the specific fact that he has lost 17

    11 kilograms since his arrival in The Hague, and a loss of

    12 concentration. All this can be corroborated by the

    13 reports of the prison physician and psychologist.

    14 Next the family conditions of the accused. As the

    15 Trial Chamber knows, he is the father of two very small

    16 children who live with his wife and his incapacitated

    17 mother. The entire family in fact lives on the pension

    18 of the accused's mother, so the issue is not only the

    19 education of the small children but the survival of the

    20 whole family.

    21 Fourth, we would like to point out the behaviour

    22 of Zlatko Aleksovski during the detention. He was the

    23 one who asked to work and all tasks that he is given he

    24 has been fulfilling conscientiously. He has been very

    25 well received in this environment, he is perhaps even

  92. 1 favourite there. There have been no incidents relating

    2 to him, and if necessary, we request that a formal

    3 report be compiled from the detention authorities.

    4 So taking into account his behaviour here in the

    5 detention unit and the family conditions and everything

    6 else, we feel that all these taken together have certain

    7 weight, and taken together and interconnected they

    8 assume a larger quality so that we can speak of

    9 exceptional circumstances from Rule 65(B).

    10 The second condition laid out in the same

    11 paragraph is the certainty that the accused will appear

    12 for trial. I think this condition too has been met,

    13 because apart from his personal promise to do so, the

    14 promise of the accused and possible surrender of the

    15 passport of Croatia, his Croatian passport, we have

    16 other arguments to convince the Trial Chamber that there

    17 is preparedness of the Republic of Croatia to give

    18 guarantees to the Tribunal that they will meet any

    19 demand of the Tribunal so that the accused would be

    20 present at his trial. These are not empty promises,

    21 which is borne out by what has been done so far, which

    22 is the fact which I have already mentioned, that is that

    23 the Croatian authorities were the ones who arrested

    24 Zlatko Aleksovski, to the more recent events, which also

    25 speak to the co-operation of the Croatian authorities

  93. 1 with the Tribunal, and I refer here to the voluntary

    2 surrender of the so-called Vitez group.

    3 We also submit that the third condition from Rule

    4 65(B) has been met, which is that the accused will not

    5 pose a danger to any victim, witness or other person.

    6 Even the indictment itself, the way it is articulated,

    7 it can be seen that Zlatko Aleksovski does not pose such

    8 a danger, and if we add to this that in the case of his

    9 provisional release, he would reside in the territory of

    10 the Republic of Croatia, it is abundantly clear that he

    11 would not have a factual possibility to even contact the

    12 persons to whom he allegedly would pose danger.

    13 Finally, regarding the fourth condition, which is

    14 the position of the host country, the Defence submits

    15 that this condition has already been met and we point to

    16 the letter of the Dutch authorities of 18th July 1996,

    17 in the IT-95-14-T, where it states that the government

    18 will practically, that is technically, implement the

    19 decision -- order of the Tribunal and it is incumbent

    20 upon the Tribunal to decide whether there are conditions

    21 for provisional release or not.

    22 Allow me to sum up. Taking into account the

    23 initial provisions, that is the co-operation of the

    24 Croatian authorities, the duration of the detention and

    25 the marginal role of our client in the charges relating

  94. 1 to the events in Central Bosnia in early 1993, the

    2 Defence submits, as it has just been presented, that in

    3 the specific case of Zlatko Aleksovski, cumulatively

    4 speaking, all four conditions from Rule 65(B) of the

    5 Rules of Procedure and Evidence have been met. We

    6 therefore move that the honourable Trial Chamber, taking

    7 into account all facts and circumstances to which we

    8 have pointed, as well as the standards of the European

    9 Commission for Human Rights based on the European

    10 Convention for the Protection of Human Rights and Basic

    11 Liberties, in other words the standards that relate to

    12 the duration of detention, and I am not going to

    13 elaborate on that -- belabour that point, so taking into

    14 account all these elements laid out in Rule 65(B),

    15 I move that the Trial Chamber decide on the provisional

    16 release of our client, Zlatko Aleksovski. Thank you.

    17 JUDGE RODRIGUES: Has the Defence completed its opening

    18 statement? If you permit, the issues which you have

    19 raised having to do with defects of the form were

    20 settled in a decision by the Trial Chamber and then

    21 there was another issue having to do with the

    22 application for provisional release. As far as that is

    23 concerned, the Trial Chamber will consider that and

    24 render a decision on that, but I think what you have

    25 just made is not an opening statement and that is why

  95. 1 I am asking you whether you have anything else to say as

    2 an opening statement.

    3 MR. MIKULICIC: Your Honours, the Defence counsel would like

    4 to reserve the right to an opening statement before

    5 beginning its Defence case. The Defence counsel has

    6 just availed itself of this opportunity to present these

    7 positions which it considers to be of substantive

    8 importance and decisive for the further course of the

    9 proceedings.

    10 JUDGE RODRIGUES: Excuse me, I did not really understand

    11 what you said. Could you tell me again what you said?

    12 MR. MIKULICIC: The Defence wishes to underline that it

    13 reserves its right to an opening statement before

    14 presenting its own case, that is at the end of the

    15 Prosecution case.

    16 JUDGE RODRIGUES: Yes, thank you.

    17 I do not know whether the Prosecutor has something

    18 to say in response to the questions raised by the

    19 Defence?

    20 MR. NIEMANN: Your Honours, if we can assist your Honours by

    21 responding to the matters raised in relation to the

    22 application for provisional release, we would ask

    23 your Honours' indulgence that we may do that at a later

    24 stage, because we would like to consider the matters

    25 raised in the transcript and do that during the course

  96. 1 of this week, if that is permissible. Alternatively,

    2 your Honours may consider it not necessary to hear from

    3 us in order to make a decision, and in that event, of

    4 course, I will leave the matter to your Honours. But if

    5 your Honours do seek our assistance, then we crave your

    6 indulgence for some time to prepare a response.

    7 Your Honours may appreciate that we were taken somewhat

    8 by surprise by the application. We do not wish to be

    9 critical, but we had not expected it and it is a very

    10 serious move and one which we would want to prepare a

    11 detailed response to, should your Honours require that

    12 assistance. As I say, if your Honours are minded to

    13 proceed with the matter in the absence of that, then

    14 that is fine by us as well.

    15 Your Honours, we are now in a position to call our

    16 first witness. I call Charles McLeod.

    17 CHARLES McLEOD (sworn)

    18 Examined by MR. NIEMANN

    19 Q. Perhaps you might like to be seated, Mr. McLeod.

    20 A. Thank you.

    21 Q. Would you state your full name, please?

    22 A. My name is Charles George Alexander McLeod.

    23 Q. What is your date of birth?

    24 A. 27th March 1963.

    25 Q. What is your place of birth?

  97. 1 A. I was born in London.

    2 Q. Where did you attend your school?

    3 A. I went to a grammar school in Kent in England.

    4 Q. After you left school, where were you first employed?

    5 A. I worked in a factory near Stuttgart in Germany.

    6 Q. What did you do after that?

    7 A. I joined the British army in 1982.

    8 Q. Was that in the month of September?

    9 A. I was commissioned in September 1983 as a second

    10 lieutenant.

    11 Q. Where did you serve with the British army?

    12 A. I served in what was then west Germany, in Belfast in

    13 Northern Ireland, in England, again in Northern Ireland

    14 and then back in England.

    15 Q. What was your first and then subsequent rank in the

    16 British army?

    17 A. I was commissioned as a second lieutenant and I left as

    18 a captain.

    19 Q. While you were in the army, did you attend university?

    20 A. Yes, I went to King's College London.

    21 Q. We need to go a little slower so the interpreters can

    22 get down everything we are saying. Because we are

    23 speaking in the same language we are perhaps moving a

    24 little too fast. What degree did you obtain at

    25 university?

  98. 1 A. I have an upper second class honours degree in German.

    2 Q. Did you then subsequently resign your commission with

    3 the army?

    4 A. Yes, I did.

    5 Q. When was that?

    6 A. That was in -- I left the army in June 1992. I actually

    7 resigned one year earlier, giving one year's notice.

    8 Q. Were you then appointed to the European Community

    9 Monitoring Mission?

    10 A. Yes.

    11 Q. When was that?

    12 A. That was in July 1992.

    13 Q. Where were you first based with the ECMM?

    14 A. I was based as a monitor in the regional centre in

    15 Zagreb.

    16 Q. Can you just tell their Honours very briefly the role

    17 that was performed by the ECMM?

    18 A. Certainly. The ECMM was established as an international

    19 monitoring mission by the international community as the

    20 conflict broke out in Slovenia, with the aim of

    21 facilitating the withdrawal of the JNA from the barracks

    22 in Slovenia. As the conflict spread into Croatia and

    23 Bosnia, so the mission spread as well into those

    24 countries and then around the borders of the former

    25 Yugoslavia with the aim of attempting to reduce tension

  99. 1 and broker peace, in very simple terms.

    2 Q. What was the structure of the ECMM?

    3 A. The ECMM had a headquarters at that time in Zagreb, with

    4 regional centres at various points around the country,

    5 and co-ordinating centres reporting to the regional

    6 centres and monitoring teams reporting to co-ordinating

    7 centres, and a monitoring team typically was two

    8 monitors, usually of two different nationalities, with a

    9 driver and an interpreter.

    10 Q. What role did you play initially with the ECMM?

    11 A. I was a monitor working in the regional centre in

    12 Zagreb, working on both sides of the contact, the

    13 internal contact line within Croatia, between the Serbs

    14 and the Croats in Croatia.

    15 Q. What type of work were you doing, what were you

    16 performing, what sort of role were you performing?

    17 A. Certainly. In the first instance we were monitoring the

    18 withdrawal of troops from the internal contact line and

    19 looking to see where heavy weapons, tanks and artillery

    20 were being stored, and then again working on both sides

    21 of the contact line to attempt low-level humanitarian

    22 acts, identifying where people were and so on.

    23 Q. Did you then move to the humanitarian section of ECMM,

    24 or was that part of what you have already described?

    25 A. Having been a monitor working for the regional centre in

  100. 1 Zagreb I was then moved to the headquarters, still based

    2 in the same building, but as part of the ECMM

    3 headquarters based in Zagreb as a member of the

    4 humanitarian section within the ECMM headquarters.

    5 Q. What role did the humanitarian section perform?

    6 A. The humanitarian section was responsible for all aspects

    7 of a humanitarian nature which the mission came across,

    8 both in terms of humanitarian information or problems

    9 which were brought to us and also the reporting of

    10 humanitarian information which was seen by our monitors

    11 in the field, passing that information on.

    12 Q. What did you do in that section, the humanitarian

    13 section?

    14 A. I was responsible for the tasking of teams to carry out

    15 humanitarian activity such as we were able to carry out,

    16 fairly limited, the collation of information which was

    17 produced by the teams into a report which was then

    18 passed on to other people and liaison with largely the

    19 international humanitarian agencies working in the

    20 theatre.

    21 Q. Can you name some of the humanitarian -- international

    22 humanitarian agencies with which you worked?

    23 A. For example the ICRC, UNHCR, Deutsche Humanitare Hilfe,

    24 the national Red Cross organisation as opposed to the

    25 ICRC, World Health Organisation.

  101. 1 Q. What were ECMM humanitarian activity reports, what are

    2 they?

    3 A. These were reports which we produced on a weekly basis,

    4 taking the humanitarian content from the teams' reports

    5 which were produced on a daily basis and collating this

    6 into a digest of all the humanitarian information which

    7 we reported which we then passed on to virtually anybody

    8 who asked for it, but primarily the various

    9 international agencies. We did this because our

    10 monitors went to places and saw things which were on

    11 occasions difficult for other people to see, and we felt

    12 that it was quite useful for us to be able to use this

    13 part of our reporting as freely and as widely as

    14 possible.

    15 Q. Were you yourself involved in the compilation of these

    16 reports?

    17 A. Yes, to an extent I had the idea of doing it and used to

    18 sit on a nightly basis and collate the humanitarian bits

    19 and type it up and distribute it.

    20 Q. I think you may have touched on this, but what did you

    21 see as the main purpose of these reports?

    22 A. We felt quite strongly that where we had access to

    23 information which either other people did not have or

    24 which they would find useful to have corroboration of,

    25 that as far as possible we should provide this

  102. 1 information to the other agencies who would then be able

    2 to react to it. We were not in a position to do very

    3 much, but we did have information, certainly.

    4 Q. Did you go on mission into Bosnia during this period?

    5 A. Yes, I went on a number of missions into northern

    6 Bosnia. Initially I was part of a team who were trying

    7 to re-establish an ECMM presence in Serb controlled

    8 northern Bosnia. As a result of these trips which we

    9 had made, we then accompanied a CSC conference on

    10 security and co-operation in Europe Rapporteur mission

    11 to visit the camps at Manjaca and Trnopolje and having

    12 been to those camps, I was then part of teams who

    13 accompanied the ICRC when they were releasing detainees

    14 from those camps.

    15 Q. Where did you go in Christmas 1992?

    16 A. I spent Christmas and New Year of 1992 in Kiseljak,

    17 which is a town just outside Sarajevo in Central

    18 Bosnia. I was there as the ECMM liaison officer at

    19 General Morrillon's headquarters, which was the UNPROFOR

    20 headquarters in Bosnia. I was there for a period of

    21 about four weeks.

    22 Q. What was your role?

    23 A. As the ECMM liaison officer, I was responsible for

    24 providing our, the ECMM reporting, on a daily basis to

    25 Morrillon's staff; I was responsible for being the point

  103. 1 of contact between ECMM and UNPROFOR in Bosnia, and as

    2 far as possible facilitating the working relationship

    3 between those two organisations.

    4 Q. Could you please tell the court what happened in the

    5 Lasva Valley in April 1993, so far as you are aware as a

    6 consequence of your duties?

    7 A. As far as I could tell, there had been a period of

    8 relative stability in the area, which had been broken

    9 initially in September or October of the previous year,

    10 and then again in January of that year, which exploded

    11 again in April and led to a conflict between the

    12 Croatian people and the Muslim people who had been

    13 largely cohabiting in that area and who until that

    14 point had been facing a common enemy of the Serbs who

    15 were attempting to push south from northern Bosnia into

    16 that area.

    17 Q. Did you go to the Lasva Valley in 1993, and how is it

    18 that you came to go there?

    19 A. At the end of April/beginning of May 1993, Thomas Osario

    20 of the United Nations Centre for Human Rights and, as it

    21 happened, Jean-Pierre Thebault, who was head of the ECMM

    22 regional centre in Zenica, were both at the headquarters

    23 of ECMM in Zagreb. They were both discussing the

    24 situation which had just occurred with the senior

    25 managers of ECMM. They both felt that it would be of

  104. 1 benefit if somebody from ECMM could go to the area and

    2 could talk to everybody and perhaps report on what had

    3 happened so that we had a clear understanding of the

    4 events. Both of them felt that they were

    5 under-resourced to do this, the regional centre in

    6 Zenica was working flat out anyway, and so the decision

    7 was taken by the senior managers in the headquarters in

    8 Zagreb that I should go down and help undertake an

    9 investigation and produce a report -- investigation is

    10 the wrong word, but to go, to talk, to speak to people

    11 and to produce a report.

    12 Q. And you in fact then went and did that?

    13 A. Yes, I travelled in on 3rd May and I left on 12th May.

    14 Q. When you were there in the Lasva Valley area, who did

    15 you work with?

    16 A. I was working with members of the regional centre based

    17 in Zenica and specifically I was working with

    18 Jean-Pierre Thebault who was head of the regional

    19 centre, and with Eric Friis-Pedersen, who was a Danish

    20 monitor based in that regional centre.

    21 Q. You said a moment ago that the purpose of going in was

    22 to gather information and so forth. What did you see in

    23 more precise terms as the mission that you would perform

    24 when you went into the Lasva Valley area at that time in

    25 May 1993?

  105. 1 A. What I was setting out to do, what I was briefed to do

    2 was to attempt to speak to the military, the political,

    3 the humanitarian leaders on both sides of the conflict

    4 in order to hear from them what they thought had

    5 happened, so we could get an understanding of what they

    6 thought had happened and then, if one was going to be

    7 ambitious, to perhaps draw some lessons and attempt to

    8 try and prevent the same thing from happening again, but

    9 without trying to be too ambitious.

    10 Q. When you went in on 3rd May, where were you based?

    11 A. I was based in the ECMM regional headquarters in Zenica.

    12 Q. How did you go about preparing yourself for this

    13 mission?

    14 A. When I arrived in Zenica, I sat down and read all of the

    15 ECMM reports which had been written about the events

    16 which had occurred and I got hold of the UNPROFOR

    17 reports which had been written about those events, and

    18 I produced a list of the dates and the times and the

    19 locations so that I built up a picture of what the

    20 international community had reported as happening before

    21 I tried to speak to anybody, so that I would have as

    22 educated an understanding and starting point for those

    23 conversations as possible.

    24 Q. When did your meetings with officials in the Lasva

    25 Valley commence?

  106. 1 A. My first meeting was on 7th May.

    2 Q. Who did you talk to?

    3 A. In general or --

    4 Q. In general.

    5 A. I spoke to the mayors of Zenica and Vitez; I spoke to

    6 the military commanders in Zenica and Vitez; I spoke to

    7 religious leaders in Zenica and Busovaca; I spoke to

    8 policemen in Busovaca and I spoke to Mr. Aleksovski.

    9 Q. How did you start out each of these meetings, what did

    10 you say when you first introduced yourself to somebody

    11 at a meeting?

    12 A. I started by explaining who I was, that I had come from

    13 the ECMM headquarters in Zagreb in an attempt to give

    14 slightly more weight to the significance of the

    15 conversation we were having, explained that I was here

    16 to listen to the point of view, the understanding of the

    17 person that I was talking to of what had happened,

    18 and -- that is basically it.

    19 Q. Did you use any aids to assist you in these discussions,

    20 any material to help the discussion?

    21 A. Yes, in most of the discussions that I had I used a

    22 photocopied map of the area and I had coloured pens and

    23 I would put the map on the table and say to people,

    24 "please show me on the map, using the coloured pens,

    25 what happened", and in every case this is what they did.

  107. 1 Q. What position did you take during the meetings?

    2 A. It depended on the location of the meeting, but I was

    3 either sitting opposite somebody at a table or sitting

    4 in their living room, for example, sitting writing notes

    5 on my knee.

    6 Q. I think I was a little misleading in my question. What

    7 position vis-à-vis the arguments or so forth that was

    8 taken? Perhaps I should have expressed that better.

    9 A. I was basically there to listen and in general I did not

    10 question the things which were being told to me, even

    11 though on occasion some of the things which were said

    12 appeared slightly preposterous, but I felt that given

    13 the very limited time that I had, I wanted to hear what

    14 people had to say rather than picking a fight with them.

    15 Q. I think you indicated a moment ago that you took notes

    16 at these meetings?

    17 A. Yes.

    18 Q. Did you always take notes?

    19 A. I think I took notes on almost every occasion when I sat

    20 down with somebody, in order to have a record of the

    21 meeting, yes.

    22 Q. Were these notes contemporaneous?

    23 A. Yes.

    24 Q. Did the notes so far as you are concerned accurately

    25 reflect what was said?

  108. 1 A. Given the limitations of working through an interpreter

    2 on all occasions, and the fact that I was not slowing

    3 down the pace of the meetings in order to take notes,

    4 yes.

    5 Q. Did you ever threaten the person that you were

    6 interviewing in order to get them to speak to you?

    7 A. Absolutely not, no.

    8 Q. Was the person able to voluntarily give you his or her

    9 version of the events?

    10 A. Yes, definitely.

    11 Q. Did the persons that you interviewed appear to

    12 understand your questions?

    13 A. Yes, I think so, because they were giving answers which

    14 made sense in the context of the questions I had asked.

    15 MR. NIEMANN: Is that a convenient time, your Honours?

    16 I notice it is 3.30 -- I am sorry, I have got the wrong

    17 time. I think it is 4.00. Sorry, your Honour.

    18 Were you accompanied during the course of these

    19 meetings and if so by whom?

    20 A. I was accompanied and on each occasion it was either

    21 Jean-Pierre Thebault or Eric Friis-Pedersen and one of

    22 their interpreters.

    23 Q. Did you try and maintain a verbatim record of the

    24 conversation?

    25 A. As far as possible on most occasions, yes.

  109. 1 Q. After these meetings, did you then type up the notes

    2 that you had taken?

    3 A. Yes.

    4 Q. Do you still have the hand-written notes of your

    5 meetings?

    6 A. Yes, I do.

    7 Q. Do you believe that you will need to refer to these

    8 notes or your typewritten report, entitled

    9 "International Ethnic Violence in Vitez", April 1993,

    10 to refresh your recollection of some of the details of

    11 these meetings?

    12 A. That would be quite useful, yes.

    13 Q. When you do need to refer to your notes or the report,

    14 can you please ask permission of the court before you do

    15 so?

    16 A. Certainly.

    17 Q. If called upon by the Defence to see your hand-written

    18 notes and the court, are you prepared to produce your

    19 hand-written notes for that purpose, for their

    20 inspection?

    21 A. Yes.

    22 Q. What was the name of the Croat forces in Bosnia at the

    23 time when you were there in May 1993?

    24 A. They were the HVO.

    25 Q. If at any time you need to look at your report, please

  110. 1 tell me so.

    2 What was the name of their political organisation?

    3 A. That was the HDZ.

    4 Q. Was this political group backed by any other outside

    5 organisations?

    6 A. They certainly appeared to be backed by the HDZ in

    7 Croatia, yes.

    8 Q. Did you ascertain this from the research and

    9 investigations that you carried out while you were in --

    10 not only in Bosnia but in Croatia as well?

    11 A. Yes.

    12 Q. Where was the local headquarters or bases of the HVO at

    13 that time, as best you can recall?

    14 A. There were bases, I imagine brigades based in Novi

    15 Travnik, in Vitez, in Busovaca and in -- wherever I was

    16 at Christmas 1992.

    17 MR. NIEMANN: Might the witness have leave to refer to his

    18 report, your Honour?

    19 A. Kiseljak.

    20 Q. Who were the forces opposing the Bosnian Croats?

    21 A. Initially then the Serbs based to the north of them, and

    22 then during this conflict it was the ABiH, the BiH army.

    23 Q. Where was the supreme headquarters of the army of

    24 Bosnia-Herzegovina?

    25 A. That was in Sarajevo.

  111. 1 Q. What political organisation backed the army of

    2 Herzegovina?

    3 A. The SDA.

    4 Q. Do you know what the name of the local army of BiH force

    5 was in the area? What corps was that, do you recall?

    6 A. III Corps, I think.

    7 Q. Who was the commander of the III Corps?

    8 A. If I may look at my notes, please? He was a gentleman

    9 called Hadzihasanovic.

    10 Q. By referring to your notes, how do you know this?

    11 A. I had a meeting with him on 7th May in his headquarters

    12 in Zenica.

    13 Q. Do you know the name of his deputy?

    14 A. Certainly one of his deputies was called Ramiz Dugalic.

    15 Q. Again, how do you know this?

    16 A. I had a meeting with him, again in the headquarters, on

    17 9th May.

    18 Q. Where was the headquarters of the III Corps at that

    19 time?

    20 A. In Zenica.

    21 Q. Did you go to their headquarters in Zenica?

    22 A. Yes.

    23 Q. What other international organisations did you have

    24 contact with when you were in the Lasva River valley

    25 area in May 1993?

  112. 1 A. I had meetings with the ICRC and I had meetings with

    2 UNPROFOR and specifically that was BritBat.

    3 Q. And BritBat is an abbreviation for "British Battalion",

    4 is it?

    5 A. British battalion based in Vitez.

    6 Q. Who was the commander of the BritBat battalion?

    7 A. He was Colonel Bob Stewart.

    8 Q. I think you said earlier that your first meeting took

    9 place on 7th May 1993. What was the first local

    10 official that you met on 7th May 1993?

    11 A. He was the mayor of Zenica, and his name was Besim

    12 Spahic.

    13 Q. When you met with Mr. Spahic, what did he tell you about

    14 the aims of Belgrade and Zagreb in relation to

    15 Bosnia-Herzegovina?

    16 A. His view as he expressed it was that both Belgrade and

    17 Zagreb had aspirations to conquer Bosnia, in extremely

    18 simple terms.

    19 Q. What did he say the HVO had done in Zenica?

    20 A. He said that the HVO had attempted to partition and

    21 block off parts of Zenica.

    22 Q. What did he say that the army of Bosnia-Herzegovina had

    23 tried to do?

    24 A. He said that they had attempted to contain the situation

    25 and to prevent the area from being blockaded.

  113. 1 Q. When you spoke to the mayor of Zenica, did he give you

    2 anything?

    3 A. He gave me a number of documents including a list of

    4 people whom he said he believed were missing from Vitez.

    5 Q. Do you know the ethnicity of the people that he said, or

    6 did you come to know the ethnicity of the people that he

    7 said were missing from Vitez?

    8 A. He was talking about Muslims.

    9 Q. Did you happen to know what ethnic group he came from?

    10 A. He was a Muslim.

    11 MR. NIEMANN: Would you look at the document that I now show

    12 you -- your Honours, a copy of this has been supplied to

    13 the Defence.

    14 JUDGE RODRIGUES: Excuse me, this might be a good point to

    15 take a break. We are going to have a break now. We

    16 will begin again at 4.00.

    17 (3.40 pm)

    18 (A short break)

    19 (4.00 pm)

    20 JUDGE RODRIGUES: Mr. Prosecutor, can we continue now?

    21 MR. NIEMANN: Thank you, your Honour.

    22 Mr. McLeod, would you please look at the document

    23 that is now shown to you, and might a copy be given to

    24 the Defence as well, please? Perhaps that might be

    25 allocated the next number in order of Prosecution

  114. 1 Exhibits, if your Honours please.

    2 THE REGISTRAR: It is number 5, Prosecution Exhibit 5.

    3 MR. NIEMANN: Mr. McLeod, do you recognise this document that

    4 you are now shown?

    5 A. Yes, I do.

    6 Q. Can you tell me what it is?

    7 A. It is the list of names that I was given by the mayor of

    8 Zenica in Zenica.

    9 Q. On the bottom half of the document, there is numbers 1

    10 to 13, and a list of apparently positions typed in

    11 English. Was that on the document when you received it

    12 or has that subsequently been added to the document?

    13 A. You can see if you look at the piece of paper a

    14 line through the middle and what I did was I photocopied

    15 the original list on to the subsequent page with the

    16 list of translations at the bottom and my handwriting, 1

    17 to 13, is on the left-hand side of the original list, as

    18 you can see.

    19 Q. What did you do with the document when you received it

    20 from the mayor?

    21 A. I kept it with me and I attempted in a small way to find

    22 out what had happened to the people on the list.

    23 Q. Ultimately, did you use this document as an annex or an

    24 appendix to the report that you prepared?

    25 A. Yes, as you can see in the top right-hand corner of the

  115. 1 document which you have, it was appendix 2 to annex A to

    2 the report which I had written.

    3 MR. NIEMANN: I tender that, your Honours, I tender that for

    4 admission.

    5 Did you then, after speaking with the mayor of

    6 Zenica, did you then proceed to speak to the mayor of

    7 Vitez?

    8 A. Yes, I did.

    9 Q. What was his name?

    10 A. His name was Ivan Santic.

    11 Q. Did you happen to know what his ethnic background was?

    12 A. I believe he was a Croat.

    13 Q. Did he say anything to you about the people that were

    14 detained?

    15 A. He said that a number of people had been detained and

    16 that -- can I refer back to my notes?

    17 Q. Please do.

    18 A. He said that they had released all the people who had

    19 been arrested in Vitez, except for 13 people, because

    20 they needed to be asked questions in Busovaca and

    21 Kaonik, that was the note that I wrote of what he said.

    22 Q. By Kaonik, what did you understand by reference to that

    23 at that stage?

    24 A. At that stage I did not know what he was referring to.

    25 By the time I had finished writing my report, I knew he

  116. 1 was referring to the prison at Kaonik.

    2 Q. When you met with the deputy commander of the III Corps

    3 of the army of Bosnia-Herzegovina, Ramiz Dugalic, did he

    4 say anything to you about the HV operating in the area?

    5 A. Again, turning to my notes, he told me that during the

    6 cease-fire which had occurred, the HVO had brought in new

    7 forces and he said they had also brought in the HV, the

    8 Croatian army and he said that in Mostar there were two

    9 brigades of HV. That was what he said to me.

    10 Q. Did he mention anything to you about the 13 Muslim

    11 officials from Vitez?

    12 A. Yes, and again referring to my notes if I may, he said

    13 that 13 members of the SDA and civil government were

    14 arrested in central Vitez. He said they were now in

    15 Kaonik and he said that the -- he alleged that the plan

    16 was that they should be arrested and the fear was that

    17 they should be liquidated.

    18 Q. What was the date of this meeting with Dugalic?

    19 A. This was on 9th May.

    20 Q. On the same day, 9th May 1993, did you have a meeting

    21 with the imam of Busovaca?

    22 A. Yes, I did.

    23 Q. Where did you have that meeting?

    24 A. I met him in his house in Busovaca.

    25 Q. Why did you have the meeting with him there? Why did

  117. 1 you have the meeting?

    2 A. I had the meeting with him because I had intended to

    3 meet leaders on both sides of the contact line from both

    4 communities, and I had already met with two Croat

    5 priests working in and near Zenica, and so in order to

    6 balance the picture, I wanted to speak to a Muslim

    7 religious leader, and I met him in his house because

    8 that was where he was when I went to Busovaca.

    9 Q. Under whose control was the town of Busovaca at the time

    10 that you met the imam?

    11 A. The town was controlled by the Croats.

    12 Q. When you met the Croat priests in Zenica, under whose

    13 control was that town at the time?

    14 A. That was controlled by the BiH.

    15 Q. Why was it that you met with the religious leaders? Why

    16 did you select them as people to meet with?

    17 A. Because in my experience and as appeared to be borne out

    18 by the facts, they were people who were in touch with

    19 the local civilian population in areas where there were

    20 otherwise no military or political leaders to whom one

    21 could talk, because these were areas controlled by the

    22 opposing party.

    23 Q. Did the Croat priests in Zenica tell you of oppression

    24 that had been inflicted upon Croat people by Muslim

    25 authorities?

  118. 1 A. Yes, they listed specific events and gave me details of

    2 the events which they were aware in some detail, which

    3 is recorded in the report.

    4 Q. What about the imam in Busovaca? Did he relate to you

    5 incidents that had occurred to Muslim people in the

    6 community in Busovaca?

    7 A. Yes, he did.

    8 Q. What did he tell you?

    9 A. He described the environment in Busovaca for the Muslim

    10 population as being isolated. They had no contact with

    11 Zenica, they were confined to their homes, they were not

    12 allowed to worship in the mosque. He said that supplies

    13 of food were short. It was not a particularly

    14 comfortable existence.

    15 Q. Did he say anything about Muslim houses or homes in the

    16 Busovaca region?

    17 A. Yes, and again referring to my notes, he said that in

    18 Ocenici, between 20th and 23rd April, five women had

    19 been killed, and the houses had all been burnt, and the

    20 funerals had just been carried out for these five women,

    21 which was why he referred to that incident. He said

    22 that in Jelinak the HVO had burnt all the Muslim houses

    23 and then the Muslims had burnt the Croat houses, so

    24 there was a degree of burning going on on both sides.

    25 Q. While you were there at the house, did anyone else

  119. 1 arrive?

    2 A. Yes, as I was finishing the conversation and indeed a

    3 meal which had been prepared while we were there by his

    4 wife, which we were forced to eat, to share, which was

    5 an uncomfortable experience, the local Croat police

    6 arrived, came into the house and asked us what we were

    7 doing there.

    8 Q. You say it was an uncomfortable experience; because you

    9 knew the fact that they were short of food?

    10 A. Yes, having had an explanation of the fact that there

    11 was very little food to then be invited to share a meal

    12 which was being prepared as we sat there was an

    13 uncomfortable experience.

    14 Q. You say that the HVO police arrived. When they arrived,

    15 what did you do?

    16 A. It was the Croatian police, I cannot remember whether

    17 they were military police or civilian police.

    18 Q. I am sorry.

    19 A. I said that I was leaving and I said I would accompany

    20 them back to the police station so that we could have a

    21 conversation, because they were keen to talk to us as

    22 well.

    23 Q. When you went back to the police station, did you

    24 discover whether or not they were civilian or military

    25 police? Refer to your notes if you need to.

  120. 1 A. At the police station, I then had a meeting with the

    2 chief of the civil police in Busovaca, a representative

    3 of the regional police and the deputy chief of the

    4 military police in Busovaca, so civil and military

    5 together.

    6 Q. What was the name of the chief of the civil police that

    7 you met with in Busovaca?

    8 A. His name was Nikica Petrovic.

    9 Q. Again referring to your notes, during the course of your

    10 discussion with the police, did the issue of prisons

    11 arise?

    12 A. Yes, initially we had been discussing the case of a girl

    13 who had been raped a couple of days before. They were

    14 explaining the process which they were carrying out to

    15 investigate the case and explaining what would happen to

    16 the suspects that they had in the case, and so from that

    17 we entered a discussion about prisons.

    18 Q. What did they tell you about prisons as they operated in

    19 the region at the time?

    20 A. Reading from my report, they said that:

    21 "Zlatko Aleksovski is responsible for Kaonik

    22 prison, it is HVO, not run by the police, it is under

    23 the jurisdiction of the military court in Travnik."

    24 That was the note that I wrote of the explanation

    25 which they gave.

  121. 1 Q. On 10th May 1993, did you then go to Kaonik prison?

    2 A. Yes, I did.

    3 Q. Who did you go with?

    4 A. I accompanied Jean-Pierre Thebault, who was the head of

    5 the ECMM regional centre in Zenica.

    6 Q. Was there anyone else with you?

    7 A. We were travelling with two interpreters, but at the

    8 meeting, we were only accompanied by Jean-Pierre

    9 Thebault's interpreter.

    10 Q. On this day, on 10th May 1993, where did you set out

    11 from, what town did you set out from?

    12 A. We drove from Zenica along the road towards Busovaca and

    13 then up to the prison.

    14 Q. By what means did you get there?

    15 A. We were driving in ECMM marked armoured Mercedes

    16 four-wheel-drive vehicles.

    17 Q. As you got to the camp itself -- perhaps I will withdraw

    18 that.

    19 Had you ever been to the camp at Kaonik before

    20 this?

    21 A. No.

    22 Q. As you got to the camp, did you see any guards at the

    23 camp?

    24 A. Yes, there were guards.

    25 Q. Did you observe how they were dressed?

  122. 1 A. They were wearing military uniform, to my best

    2 recollection.

    3 Q. Do you recall whether or not they were armed?

    4 A. No, I have no specific memory of whether they were

    5 carrying guns or whether they were not carrying guns.

    6 Most people were carrying guns, but I cannot

    7 specifically remember at that time whether the people

    8 that I saw had them or did not have them.

    9 Q. Did you have any idea of how far the camp was from the

    10 front-line?

    11 A. Having looked at a map subsequently to work out where we

    12 were, it was within two or three kilometres of where

    13 I knew the front-line had been. I was not aware at that

    14 time of precisely where the front-line was, but it was

    15 within two or three kilometres.

    16 Q. When you arrived at the Kaonik prison, where did you go?

    17 A. We went into the first building which we came to, which

    18 was a long building and when we arrived, we were taken

    19 into an office.

    20 Q. Were you ushered into anybody's office in particular?

    21 A. I do not know whether the office was specifically

    22 designated for somebody, but it was the office in which

    23 we met Mr. Aleksovski.

    24 Q. Where was this office located in the building?

    25 A. As we walked into the building, it was on the left-hand

  123. 1 side before we got up to the main prison corridor.

    2 Q. Do you know whether the person that you accompanied

    3 there, Jean-Pierre Thebault, whether he had been there

    4 before?

    5 A. I do not know whether he had been there before or not.

    6 Q. When you were ushered into the office where you met

    7 Mr. Aleksovski, who was in that office with you?

    8 A. Throughout there was Mr. Aleksovski, myself, Jean-Pierre,

    9 Jean-Pierre's interpreter and then from time to time

    10 there was also a female secretary who was attempting to

    11 produce a list of prisoners from a computer. She came

    12 and left.

    13 Q. The interpreter that you took in with you into the

    14 office, were you confident or reasonably confident of

    15 her ability to interpret accurately?

    16 A. Yes, in light of the experience that I had of working

    17 with interpreters, she appeared to be entirely competent

    18 and because she was working for Jean-Pierre, I assume

    19 that he had taken for himself the best interpreter.

    20 Q. When you met with Mr. Aleksovski, was it a cordial

    21 meeting?

    22 A. Yes, the atmosphere during the meeting was relaxed, we

    23 had a fluent conversation, it was a cordial meeting,

    24 yes.

    25 Q. Who did most of the talking on the side of the ECMM?

  124. 1 A. Jean-Pierre Thebault did most of the talking and I sat

    2 and wrote notes during most of the conversation.

    3 Q. On this occasion, were you writing on a desk or -- were

    4 you resting the book on a desk or on your knee? Maybe

    5 you cannot remember.

    6 A. I am not certain. I think I was probably resting on my

    7 knee, but there may have been a low table.

    8 Q. I asked you earlier if you had a copy of your

    9 hand-written notes with you so that you could refer to

    10 them. Do you have these hand-written notes of the

    11 meeting that you had with Mr. Aleksovski on 10th May

    12 1993, is that with you in court?

    13 A. Yes, it is.

    14 Q. For the purposes of your formal report, did you later

    15 prepare a typed version of your hand-written notes?

    16 A. Yes, I did.

    17 Q. When you prepared this typewritten version, did you rely

    18 upon the hand-written version of the notes that you took

    19 when you were at the Kaonik prison?

    20 A. Yes, I did and I typed an almost verbatim copy of the

    21 hand-written notes. I made a number of small corrections

    22 for grammatical mistakes, but leaving most of them as it

    23 was, and I added a couple of comments of my own inserted

    24 within the text as I had written it down.

    25 Q. To your knowledge, are there any material differences

  125. 1 between the hand-written notes and the typed report?

    2 A. No.

    3 Q. Approximately, if you can remember, how long after you

    4 had taken the hand-written report at the meeting of

    5 10th May 1993 did you type up the typewritten version,

    6 if you can remember that?

    7 A. It would have been within the next three days. I cannot

    8 remember whether I wrote this report immediately

    9 afterwards or within the next couple of days, but the

    10 report was published on the 15th, so it was within the

    11 next few days.

    12 MR. NIEMANN: Will you look at the document I am about to

    13 show you, please, and again might a copy of this be

    14 given to the Defence. Might it be given the next number

    15 in order of Prosecution Exhibits, please.

    16 THE REGISTRAR: It is number 6.

    17 MR. NIEMANN: Looking at that document that is now shown to

    18 you, do you recognise that document?

    19 A. Yes, I do.

    20 Q. What is it?

    21 A. This is the typewritten report of my visit to the

    22 prison, which appears in my report as annex O.

    23 Q. This is the document that we have been referring to in

    24 the previous questions?

    25 A. Yes.

  126. 1 Q. Very slowly, because it has to be interpreted, would you

    2 please read this report?

    3 A. Certainly. If I go too fast just shout. So this is

    4 annex O to the report dated 15th May 1993. The date of

    5 the meeting is 10th May 1993, and this is the, "visit to

    6 Kaonik prison, director Zlatko Aleksovski":

    7 "Mr. Aleksovski used to work in Zenica prison. He

    8 thinks that his prisoners are lucky because he is a

    9 professional who knows how to handle them.

    10 "The job is difficult regardless of the kind of

    11 prisoners. The problem is that they have a large number

    12 of people and there is still some fighting in the area.

    13 There is quite a lot of fear because of the fighting,

    14 people feel threatened and there is fear on both sides,

    15 both from those inside and out.

    16 "The problem is that someone needs to provide

    17 certain guarantees to both prisoners and jailers,

    18 because some people are not strong enough and you expect

    19 reactions from them under certain conditions.

    20 "So far they are not bad problems that they could

    21 not solve or that would cause chaos. This can be

    22 checked by talking to people. There is no kind of

    23 mistreatment.

    24 "More or less all the rules of the Geneva

    25 Convention are obeyed in most cases. There is some

  127. 1 flexibility because he is used to respect the rules of

    2 the prison in Zenica.

    3 "In January this year, he was here when 400

    4 Muslims were arrested here. During this conflict the

    5 situation was worse because fighting was close and there

    6 was a bigger conflict and the outcome of the conflict

    7 was not certain. If you are familiar with the present

    8 situation you can see that there is pressure on the HVO.

    9 "ICRC from Zenica visit very regularly, three or

    10 four times in the last conflict. In case they happen to

    11 have two or three more prisoners arrive, they inform

    12 ICRC. I think ICRC have no objections in regard to my

    13 work. I cannot guarantee for the others, but certainly

    14 for my work.

    15 "The biggest problem is that we are poor, there

    16 is a lack of food and money. There is a lack of food

    17 and we do not think that we have good conditions here.

    18 The cells were quickly constructed and not designed for

    19 their current purpose.

    20 "Currently, there are 79 Muslim prisoners. There

    21 were more: on 16th April we had 107 prisoners, on

    22 6th May we had 109 prisoners and on 9th May we also had

    23 109 prisoners."

    24 At this point he was referring to a document which

    25 he was showing to us. He said:

  128. 1 "This is an appeal for the release of five people

    2 from ICRC, an appeal for the release of ICRC drivers,

    3 arrested on 14th April in Novi Travnik. When we speak

    4 of those who work for ICRC and do not, I have sent them

    5 a letter saying that I would like to warn them who they

    6 engage within their humanitarian organisation. These

    7 are soldiers."

    8 Q. You can move a little bit faster. I think we are doing

    9 well.

    10 A. Then we have my comment:

    11 "When questioned about the charges against the

    12 prisoners being held in the prison, there was a

    13 complicated answer:

    14 "This prison was not established just for this

    15 conflict. It is the military prison for the whole

    16 region of Central Bosnia. So all these Muslims arrested

    17 during this conflict are in the charge of HVO of

    18 Busovaca and Vitez. He wants to stress that they (the

    19 HVO) do not do their job professionally and officially.

    20 "This prison is just to hold them."

    21 Then again he was showing us a document:

    22 "For example here is the release document signed

    23 by local brigade commander authorising the release or

    24 exchange of a prisoner.

    25 "Another problem is that almost all of the staff

  129. 1 were mobilised and taken to the front-line, so one of his

    2 guards is 60 years old, and most of them are unable to

    3 do their jobs when he is absent. He lives here because

    4 his flat was emptied in Zenica."

    5 Q. By the words "he lives here", who did you understand

    6 that to mean?

    7 A. Aleksovski was explaining that he lived at the prison.

    8 Q. Thank you.

    9 A. "The two basic problems are lack of food and a lack of

    10 security staff. The third problem they are trying to

    11 solve is the problem with those people who are arrested,

    12 who are brought here without any selection. But he must

    13 stress that the women and children are not brought here.

    14 "Both soldiers and civilians are brought. The

    15 explanation that he is given for the civilians is that

    16 they are brought for their protection. With the

    17 soldiers it is obvious.

    18 "The fourth problem is internal exchange. There

    19 were a great number of those agreed by local commanders

    20 or other important people within the local community.

    21 "Or often someone is given permission to be

    22 released because they know someone important. Thus we

    23 are left with the poor who do not have such good

    24 relations with the rich and powerful. The only comfort,

    25 if that is what it is, is that the most important people

  130. 1 from Vitez were also brought here.

    2 "Fifth is the kind of work that the prisoners

    3 have to do. Because I know that the Geneva Conventions

    4 do not allow prisoners to be taken for any work if their

    5 lives are in danger. I have been warned about that by

    6 the ICRC as well.

    7 "But I am not the only one responsible for this,

    8 because I just carry out orders. The brigade commanders

    9 in Busovaca and Vitez give them. Not that I want to

    10 avoid my responsibility. Because I am not the one who

    11 releases people to do the work. In order to clear it

    12 up, I went with Beatrice of the ICRC to the commander in

    13 Busovaca where she protested for the people to be taken

    14 to work under such conditions.

    15 "She was given the answer I almost completely

    16 agree with. We here actually do not have enough people

    17 to do the security jobs. Someone had to dig the

    18 trenches and it happened that the men to do that were

    19 the prisoners. On the contrary it would happen that

    20 Busovaca would be occupied and I do not need to explain

    21 what would happen if Mujahedin occupied it, so in a way

    22 the Muslims protected Busovaca.

    23 "This compared to the Geneva Convention is not

    24 right, but regarding the need for the trenches to be dug

    25 I think that it is right. One day we were digging

  131. 1 trenches and the Muslims attacked our position, and

    2 everyone tried to run away. So when we gathered

    3 together we found that two men were missing. There had

    4 been six of them digging trenches".

    5 JUDGE RODRIGUES: Might I interrupt for a moment please?

    6 I believe that if we are going to read this entire

    7 document -- we are now on the third page only. Could

    8 you submit this report as an exhibit and allow the

    9 witness to summarise the essential points of the

    10 document? I invite the Prosecutor to proceed in that

    11 manner.

    12 MR. NIEMANN: Certainly, your Honour, I will tender it as an

    13 exhibit. I know the process is taking a long time, but

    14 the document itself, of course, is central to the

    15 Prosecution case, and I was anxious for it to be read

    16 into the transcript. I could ask the witness to read it

    17 at normal speed, which would mean that it would be

    18 completed quickly and it does not matter that the

    19 translation may be not so accurate. In that way we

    20 could dispose of it quickly.

    21 JUDGE RODRIGUES: Perhaps the document could be read a

    22 little more quickly, I believe that actually the

    23 interpreters have the opposite problem at the moment, it

    24 is a bit too slow. All right? Can we go ahead please.

    25 MR. NIEMANN: Perhaps you can pick up from where you are and

  132. 1 read it at normal speed. If there is any difficulty

    2 with the interpreters, perhaps they may be good enough

    3 to indicate they are having difficulties and we can deal

    4 with it then. Would you mind reading it at ordinary

    5 speed?

    6 A. Certainly:

    7 "Not all of the prisoners are military. They do

    8 not have details of who is military and who is

    9 civilian. It is the problem of the military police and

    10 the intelligence organisation.

    11 "They have released, or rather will release the

    12 civilians. None of the Muslims have been charged with

    13 anything, other than being members of the BiH army.

    14 "The prison is for the whole of Central

    15 Bosnia-Herzegovina. But they can not even get a kilo of

    16 bread up from the south, let alone a prisoner. So they

    17 have several small prisons in the districts.

    18 "They have space for 80 and have about 40

    19 criminals as well as the Muslims.

    20 "I do not think anyone would accept responsibility

    21 for the small prisons. According to my personal

    22 estimation I would consider these small prisons as

    23 private prisons, no one would take responsibility. For

    24 example the music school in Zenica.

    25 "But I would like to stress that in Busovaca there

  133. 1 are no double prisons, for example in Zenica there are

    2 several places outside the main prison.

    3 "As far as I know, my father-in-law was taken a

    4 few days ago by a terrorist group: 7 Muslim brigade. My

    5 mother-in-law had a phone call that he is alive and well

    6 and will be killed if any civilian in Busovaca is killed

    7 after 7th May at 11.30.

    8 "When they took my father-in-law they gave her a

    9 kind of receipt where it is written III Corps BiH and

    10 name of those who were there: Delalic Nasid and Perehda

    11 Besim were the people who did it.

    12 "The brother of one of my guards was taken to the

    13 main prison, and since I used to work there I asked

    14 about him and was told he was there. But when the

    15 brother called he was told he was not there. His name

    16 is Janic Ilja Dragan.

    17 "I do not know about the cinema in Vitez, but

    18 I know they are kept in some basements. I was told that

    19 last night, when I talked to prisoners from Vitez. They

    20 said that in some basements conditions were good and

    21 some were bad.

    22 "Concerning the problems within his guards he has

    23 four men whose brothers were killed in the front-line and

    24 a lot of people from Busovaca lost members of their

    25 families. In such critical situations people used to

  134. 1 drink too much. You can imagine what happens when such

    2 drunk people come to take revenge.

    3 "Would you shoot a man who has lost his brother to

    4 stop him from abusing a Muslim? In order to restrain

    5 them without shooting my guard are not carrying

    6 weapons. You will see that those who have contact with

    7 the prisoners do not carry weapons. All the weapons

    8 here are some old-fashioned rifles and we only carry

    9 them at night.

    10 "It can be very dangerous because we work here

    11 with people, we are responsible for their lives. You

    12 should check with them.

    13 "I do not want to avoid my responsibility. I do

    14 not know the exact date when the cease-fire was agreed,

    15 when the UN came to separate the two sides. At that

    16 very moment when the UN went to separate them, the BiH

    17 killed Muslims because they should know that only

    18 Muslims kill Muslims.

    19 "Therefore relatively they are all secure here.

    20 To confirm that, they should see that you carry

    21 flak jackets, outside it is more dangerous.

    22 "I want to repeat once again, if we did not have

    23 trenches dug then who can say what would have happened?

    24 Presently there is not large scale fighting. There are

    25 incidents, snipers are active. A civil policeman was

  135. 1 killed yesterday.

    2 "I have doubts that we will have peace here;

    3 I have heard there is a general call-up in Zenica.

    4 "In Jelinak we gathered all the women and

    5 children into one house to protect them from the men who

    6 had lost brothers. Then we told them to go to Zenica.

    7 They escorted them on foot to the petrol station, then

    8 told them to go to Zenica.

    9 "BiH now control Jelinak. The village was burnt

    10 at the very beginning, on the second day of fighting.

    11 We were on one side and they were on the other. They

    12 started shelling and we withdrew from our positions.

    13 Then they burnt the houses. All of them have been

    14 burnt.

    15 "For example our people from Kacuni were all

    16 expelled and then they burnt the whole village. The

    17 first case happened in Dusina, where BiH entered the

    18 village and killed all the Croats. They actually cut

    19 the heart out of the body of the commander. This was

    20 back in January.

    21 "Comment: we then went to look at the prisoners.

    22 One man asked if he could ask a question, and then asked

    23 why he was being held. Aleksovski said that in this

    24 case he knew, having spoken to the men who brought the

    25 prisoner in. He had been arrested for his own

  136. 1 protection because he was tending a field in a conflict

    2 area.

    3 "I commented quietly that if it had been me,

    4 I would have sent him to Zenica for his protection,

    5 rather than putting him into a cell. Aleksovski said

    6 that in that case, since the man was clearly a civilian,

    7 we could take him back to Zenica with us. He told the

    8 man to take his coat and leave the cell. While we were

    9 still talking they organised a car to take him back to

    10 the point where he was picked up.

    11 "This prompted a discussion of whether all the

    12 other civilians who were being held for their own

    13 protection should be released, which was continued once

    14 we had seen looked into the other cells in the building.

    15 "We spoke to several men who had been arrested in

    16 Vitez on 16th April. They said that they were civilians

    17 and asked when they would be released. For the most

    18 part they were teachers and engineers. All of them said

    19 that they had been arrested at home. The list of Muslim

    20 prisoners held is at appendix 1.

    21 "In every cell at least one prisoner made a point

    22 of making a short statement to the effect that all the

    23 prisoners were being well treated and had no complaints

    24 about their conditions. These statements were

    25 reminiscent of the speeches made to the commandant of

  137. 1 Manjaca by prisoners when they were released.

    2 "On the question of the definition of a soldier,

    3 there was a long discussion centred on the argument that

    4 any man between the ages of 16 and 60 was a soldier, so

    5 there could be no civilians. But at the same time some

    6 of the men held were clearly civilians, so the

    7 definition of a soldier as someone who was captured

    8 during combat, wearing a uniform with a weapon in his

    9 hand was offered as the alternative. Aleksovski finally

    10 said that he would get the military police to decide,

    11 and would send us lists of the soldiers and civilians as

    12 soon as they had. Comment ends.

    13 "For the civilians, HVO actually offered

    14 unconditional release and I think in a day or two it

    15 will be achieved for civilians. For soldiers, things

    16 are more complicated, because III Corps require a

    17 one-for-one exchange.

    18 "I do not know how many other soldiers they have

    19 or we have, so there are some problems. I promise that

    20 on my part I will do my best for the civilians as a

    21 positive sign. Most probably these two first will be

    22 released because I cannot provide a 100 per cent

    23 guarantee for the others.

    24 "Comment: he claimed not to have seen the joint

    25 order signed by Petkovic and Halilovic, ordering the

  138. 1 release of all civilians, so we said we would fax him a

    2 copy.

    3 "I will go with you to both HQs and will give

    4 them a guarantee that I will act in accordance with the

    5 Geneva Conventions. He said that he would fax us lists

    6 of all those who had been brought into the prison, all

    7 those who had left, and all those who remained."

    8 That was the end of the report.

    9 MR. NIEMANN: Thank you. I tender that report,

    10 your Honours. Mr. McLeod --

    11 MR. MIKULICIC: Your Honours, Defence counsel is opposed to

    12 the use of this document that has been read as evidence,

    13 because it is a combination of a report by Mr. McLeod and

    14 quotations of alleged statements by the accused, Zlatko

    15 Aleksovski. That statement, under no circumstances, was

    16 given under formal conditions that would be required and

    17 therefore cannot be considered as evidence in the

    18 proceedings. Defence counsel is making this objection

    19 in line with the previously expressed position that it

    20 will vehemently oppose any attempt to use circumstantial

    21 evidence. Therefore in our view, this document, which

    22 is a compilation, combining a report with alleged

    23 statements by the accused, cannot be admitted into

    24 evidence, and we would request that you rule in that

    25 sense.

  139. 1 MR. NIEMANN: If your Honours please, the document in

    2 question is not a document which would fall into that

    3 category of documents or confessions which the Rules of

    4 Procedure and Evidence deal with, which impose upon, for

    5 example, members of the Office of the Prosecutor certain

    6 conditions requiring for example that counsel be

    7 present, that the person be entitled to decline to

    8 answer any questions necessary and so forth that are set

    9 out in the Rules. Those provisions contained in the

    10 Rules of the Tribunal are importantly there because they

    11 deal with people who are either determined as suspects

    12 or people who have been indicted with charges, and they

    13 need to be given the caution that anything they say may

    14 be taken down and used in evidence.

    15 Your Honours, this is a statement taken

    16 contemporaneous with the events. It is a statement

    17 taken at the time that the alleged offences, during the

    18 period of time that the alleged offences are said to

    19 have occurred. It is direct evidence of the events and

    20 circumstances of that time. It is precisely the same as

    21 if a witness came before you at that time and said that,

    22 "in May 1993, I was a prisoner in the Kaonik prison and

    23 I saw the following things, or I heard Mr. Aleksovski say

    24 the following things". All of that would be clearly and

    25 properly admissible.

  140. 1 What might happen several years later, when the

    2 Office of the Prosecutor proceeds to present an

    3 indictment for confirmation, and a person is indicted, a

    4 whole of different and separate circumstances then

    5 prevail. That has no bearing on what happens here. You

    6 have heard evidence from this witness that it was

    7 voluntary; you have heard evidence from this witness

    8 that he took a contemporaneous note of events and that

    9 he wrote down what was said at the time. It is not

    10 written down in the way that you would find a record of

    11 interview maybe recorded between a professional police

    12 investigator and an accused person, certainly not, but

    13 it is the very best thing to it, but it does not have to

    14 be, your Honours, because it is evidence taken directly

    15 from the time that the offences were being committed.

    16 In our submission, your Honours, there is no

    17 suggestion in any way that this was involuntary. In

    18 fact if anything the circumstances speak for

    19 themselves. The statement was taken in the prison, in

    20 the office of the Mr. Aleksovski. The witness has

    21 attested to the fact that he did not place any pressure

    22 upon Mr. Aleksovski or on any of the people he

    23 interviewed; he did not offer any opinions as to whether

    24 he thought what was said was right or wrong. He made it

    25 very clear, your Honours, in his evidence that the whole

  141. 1 purpose of him being there was to obtain their views of

    2 the events, and he used his best endeavours to achieve

    3 that end. The fact that the statements were taken

    4 contemporaneous with the events, contemporaneous with

    5 what was said, and was later produced in this report,

    6 make them clearly admissible and there is no prohibition

    7 that I know of in any national system that would prevent

    8 the admission of this document, and, your Honours, there

    9 is certainly nothing under the Rules of the Tribunal

    10 which would go to prevent the admission of this document

    11 into evidence, and I submit that it properly should be

    12 admitted into evidence.

    13 JUDGE RODRIGUES: As regards this question, the Trial

    14 Chamber will accept the document, because it is part of

    15 the witness's testimony, and as stated in Rule 98, the

    16 Trial Chamber can receive any documents which it

    17 considers to have probative value. 99, excuse me, not

    18 98. And the Trial Chamber accepts the document. The

    19 Rule is 99(C) -- 89(C).

    20 MR. NIEMANN: As your Honours please. 89, yes.

    21 JUDGE RODRIGUES: We will now continue with the testimony.

    22 MR. NIEMANN: As your Honours please.

    23 Mr. McLeod, just looking at the document that has

    24 now been admitted into evidence and in particular at the

    25 second paragraph on the first page of the document, do

  142. 1 you see there in the last line of the second

    2 paragraph the words "threatened and there is fear on

    3 both sides, both from inside and out". The words

    4 "inside and out" as they appear there, what did you

    5 understand was being described at the time when you took

    6 down the notes, by reference to that?

    7 A. I think that he was referring to the captives and the

    8 captors, so inside and outside the prison.

    9 Q. Just going down if you would for me please to the

    10 fifth paragraph --

    11 MR. MIKULICIC: I apologise for interrupting, your Honours.

    12 Defence counsel has an objection again, because the

    13 witness, as an eyewitness of the events, is saying what

    14 he thought the accused thought. Defence counsel argues

    15 that it is not possible for the witness to testify about

    16 what somebody else thinks. He can testify about what

    17 somebody else said or did, but not what somebody else

    18 thought. That is the gist of the Defence's objection.

    19 THE INTERPRETER: Microphone, please.

    20 JUDGE RODRIGUES: The Trial Chamber will take into

    21 consideration your objection.

    22 MR. NIEMANN: Your Honours, as I will be asking a number of

    23 questions along this similar line, perhaps I should

    24 respond very briefly to what my friend has raised in his

    25 objection, in terms of endeavouring to explain my

  143. 1 position, if I may.

    2 Your Honours, I am not at all asking this witness

    3 to tell us what Mr. Aleksovski meant, nor am I asking

    4 this witness to try and explain what was in

    5 Mr. Aleksovski's mind at the time when he said

    6 something. I am asking the witness to tell us what he

    7 understands by something that was taken down by him.

    8 Your Honours, there is always some ambiguity in language

    9 and sometimes it is difficult to know one way or the

    10 other what someone means when they write something

    11 down. It does not go necessarily to prove that

    12 Mr. Aleksovski meant that, but it does assist, in our

    13 submission, if this witness is permitted to explain what

    14 he understood it to mean when he wrote it down.

    15 In many cases during the course of conversation,

    16 people say things and if we are taking a literal writing

    17 of what was said, people say things but there is greater

    18 meaning because of the relationship in the

    19 conversation. When it appears in written form,

    20 particularly when it is taken down rapidly, sometimes

    21 the meaning becomes either ambiguous or sometimes it is

    22 lost, so it is only to that extent that I am seeking to

    23 do it and I am certainly not asking this witness to tell

    24 us what Mr. Aleksovski meant by that statement.

    25 Mr. McLeod, in the fifth paragraph on page 1, you

  144. 1 have reported that Mr. Aleksovski is saying "more or

    2 less, all the rules of the Geneva Conventions are obeyed

    3 in most cases". Then he says:

    4 "There is some flexibility because he is used to

    5 respect the rules of the prison in Zenica."

    6 What did you understand by that remark when you

    7 wrote it down?

    8 A. I understood that since he had been a professional

    9 jailer at the prison in Zenica, he understood how a jail

    10 should be run and therefore he was saying that he had

    11 some understanding of how the Geneva Convention should

    12 be applied to the running of a prison and he was also

    13 using his knowledge as a professional jailer to ensure

    14 that the prison was run along the lines in which he ran

    15 it.

    16 Q. The first sentence on the fourth page reads:

    17 "Would you shoot a man who has lost his brother to

    18 stop him from abusing a Muslim?"

    19 Again, in the context of the conversation that was

    20 going on between you and Mr. Aleksovski, what did you

    21 understand that sentence to mean?

    22 A. He was asking whether we felt that it was appropriate,

    23 or that it would be appropriate, to shoot somebody in

    24 order to protect a prisoner under those circumstances.

    25 Q. In the second paragraph on page 5, and this is something

  145. 1 where it says:

    2 "Reminiscent of speeches in Manjaca."

    3 That is something you have said and relates to

    4 your own experience, does it not?

    5 A. Yes, it does.

    6 Q. What did you mean by that when you wrote that down?

    7 A. As I said during my introduction, I was present at

    8 Manjaca with the ICRC when the ICRC were taking

    9 detainees out of Manjaca and I had the very strange

    10 experience of watching several hundred men lined up in

    11 the snow and then their leaders or nominated members of

    12 the Muslim group who had been detained by the Serbs at

    13 Manjaca asked permission to make a short speech and then

    14 made a short speech thanking the commandant for his care

    15 and attention in looking after them while they had been

    16 there. As an observer standing there in the snow, this

    17 looked like a slightly strained and rehearsed

    18 performance being put on for our benefit. That was the

    19 incident to which I was referring at this point.

    20 Q. This was the camp in Manjaca that you had visited in

    21 1992, at the same time as when you visited the camp at

    22 Trnopolje?

    23 A. Yes.

    24 Q. Trnopolje in the Prijedor opstina?

    25 A. Yes.

  146. 1 Q. Thank you. I would ask you to look at this next

    2 document that I show you, and also a copy of this has

    3 been made available to the Defence -- I would ask that a

    4 copy be made available to the Defence.

    5 THE REGISTRAR: It is number 7.

    6 MR. NIEMANN: Excuse us, your Honours. (Pause).

    7 Your Honours, it seems we may be short a copy for each

    8 one of your Honours, but we will endeavour to correct

    9 that as soon as possible. It looks as though we have

    10 done it now.

    11 Just looking at this document that you are now

    12 shown, Mr. McLeod, what is it?

    13 A. This is a copy of a computer printout which was handed

    14 to us at the prison by Mr. Aleksovski, and I understand

    15 that this is a list of the prisoners, the Muslim

    16 prisoners who he was holding in his prison on that date.

    17 Q. Why is it that you understand that?

    18 A. While we had been there, he had been at pains to have a

    19 list produced for us, he was quite proud of the fact

    20 that he had a computer system with computer records on

    21 it, and as you could see from the comments made towards

    22 the end of my report, in fact he was then embarrassed

    23 because the quality of the list was not as accurate as

    24 perhaps it should have been and so he then said he would

    25 send us subsequent lists, but this was the best he was

  147. 1 able to give us at the time.

    2 Q. When you say "the quality", do you mean the quality of

    3 the printing of it?

    4 A. The quality of the data as opposed to the quality of the

    5 presentation. It was not clear that all of the people

    6 on the list were actually all of the people that were

    7 present. There were, I think, a number of

    8 discrepancies.

    9 Q. I think on the second page of the document at the bottom

    10 of the list, although it is not terribly clear on all

    11 copies, I am not sure whether it is clear on their

    12 Honours' copy, but does the name of the accused appear

    13 there?

    14 A. Yes.

    15 Q. The writing that appears on that document, do you

    16 recognise whose writing that is?

    17 A. Yes, all of the manuscript is my own.

    18 Q. When did you write on the document?

    19 A. This writing was done by me as we walked around the

    20 prison cells and I was writing comments. Unfortunately

    21 I did not think to start writing comments as soon as we

    22 started seeing the prisoners, but after a while

    23 I switched on and realised I should make a tick or write

    24 a comment to be able to refer back to those people I had

    25 actually seen. On the first page halfway up on the

  148. 1 right-hand side is a telephone number, that is the

    2 telephone number which we were given towards the end of

    3 our meeting.

    4 Q. Given by whom?

    5 A. I think we were given that by Aleksovski.

    6 MR. NIEMANN: Yes, I tender that, your Honours. I think it

    7 has been given the next number. I tender it into

    8 evidence, your Honour.

    9 Now, when you went to see the prisoners, to visit

    10 the prisoners after your meeting with Mr. Aleksovski, can

    11 you describe the physical structure of the building as

    12 best you can remember in terms of where his office was

    13 and where the cells were that you went to visit?

    14 A. Certainly. The building itself was a long narrow

    15 building. His office was on the front of the building,

    16 and it was on the left-hand side as one approached, so

    17 if one can imagine a T shape, it was on the foot of the

    18 T on the left-hand side. We walked from his office up

    19 on to the main corridor which ran the length of the

    20 building, and off this corridor were a series of cells

    21 on both sides of the corridor with ablutions, from

    22 memory I think at the end of the corridor, but I am not

    23 certain whether they were at the end of the corridor.

    24 We walked in a clockwise direction, so up on to the

    25 corridor and turned left and as we came to each cell the

  149. 1 door was opened, we went into the cell, we saw the

    2 people who were in there, had brief conversations with

    3 some of them. Not all of the cells were occupied as far

    4 as I remember, so most of the people we saw were on a

    5 crescent as we walked around the left, bottom of the top

    6 of the left-hand arm and on the right-hand arm of the T,

    7 if you can imagine that, was a cell in which there were

    8 a couple of Croatian military prisoners also being held

    9 there with all of their equipment in the room.

    10 Q. During the course of your tour around the cells, and you

    11 spoke of this in your report, you mention a civilian

    12 prisoner who Mr. Aleksovski said you could take back to

    13 Zenica with you. Did you end up taking that person back

    14 to Zenica?

    15 A. No, we did not.

    16 Q. Do you know what happened to that person?

    17 A. I have no idea what actually happened to him. What

    18 I saw was that following the interchange that we had, he

    19 was told to pick up his things, his coat from the cell,

    20 he shook hands with the other members of the cell, left

    21 and the implication was that he was then being driven

    22 back to the place where he was picked up. In practice,

    23 I have no idea what actually happened to him.

    24 Q. The prisoners that you saw, did these prisoners appear

    25 to be soldiers or civilians?

  150. 1 A. Most of the people I saw were dressed in civilian

    2 clothes and appeared to be civilians. There were

    3 certainly two soldiers that we met, but they were

    4 introduced as Croatian military prisoners who had

    5 committed some unspecified crime. They were dressed in

    6 uniform.

    7 Q. You also speak in your report of an exchange of

    8 prisoners that would take place on a large scale. Do

    9 you know whether or not a large-scale exchange of

    10 prisoners ever occurred?

    11 A. I am not certain whether a large-scale exchange of

    12 prisoners did occur as a result of or immediately

    13 following the visit that I had there, no.

    14 Q. Did you make any suggestions to Dugalic, the deputy

    15 commander of the III Corps BiH back in Zenica about

    16 releasing Croat prisoners on their part?

    17 A. Yes, I had a subsequent meeting with Dugalic, I told him

    18 what I had seen at Kaonik, I explained to him the

    19 problems that we had trying to define who was a civilian

    20 and therefore eligible for release and who was not a

    21 civilian and I suggested that from his point of view,

    22 the one thing which he could do would be to release a

    23 number of Croatian prisoners whom he was holding to

    24 demonstrate his goodwill and to make it easier then for

    25 a number of Muslim prisoners to be released.

  151. 1 Q. So far as you are aware, was this advice followed?

    2 A. Yes, I believe that they did then release eight or nine

    3 Croat prisoners being held by the Muslims and this was

    4 observed by the ICRC.

    5 Q. After this meeting you had with Mr. Aleksovski on that

    6 one day, 10th May 1993, did you ever see or meet him

    7 again?

    8 A. No.

    9 MR. NIEMANN: No further questions, your Honour.

    10 JUDGE RODRIGUES: Thank you, Mr. Prosecutor. This is the

    11 point when the Defence can cross-examine the witness,

    12 but I think that it would be better if we did it

    13 tomorrow, which will give you a little bit of time to

    14 think about the questions that you want to ask. Do you

    15 agree to do it tomorrow?

    16 MR. MIKULICIC: Your Honours, Defence counsel agrees with

    17 your proposal, because we would not like to have to

    18 interrupt the cross-examination after a few minutes, so

    19 it would be better that we start tomorrow, early.

    20 JUDGE RODRIGUES: For you Mr. Niemann, there is no problem

    21 with that?

    22 MR. NIEMANN: By all means, your Honour.

    23 JUDGE RODRIGUES: We will resume tomorrow at 10.00.

    24 (5.20 pm)

    25 (Hearing adjourned until 10.00 am the following day)