1. 1 Monday, 22nd March, 1999

    2 (Closing Submissions)

    3 (Open session)

    4 --- Upon commencing at 2.06 p.m.

    5 (The accused entered court)

    6 JUDGE RODRIGUES: Good afternoon, ladies and

    7 gentlemen. Can the interpreters hear me well?

    8 THE INTERPRETER: Yes, Your Honour. Thank

    9 you.

    10 JUDGE RODRIGUES: Good afternoon to you.

    11 Good afternoon to the Prosecution, counsel for the

    12 Defence, the court reporters. Good afternoon to

    13 Mr. Aleksovski as well.

    14 We are sitting today to resume our

    15 proceedings. Now that we have the decision of the

    16 Appeals Chamber, we are within the framework of Article

    17 86 of our Rules, and I say that for the benefit of the

    18 public, to whom I also wish to say good afternoon.

    19 Rule 86 says that, after the presentation of

    20 all the evidence, the Prosecutor may present a rebuttal

    21 argument, to which the Defence may present a

    22 rejoinder. I think that we have to ask several

    23 questions before undertaking the closing arguments.

    24 During the Status Conference of the 20th of

    25 October, 1998, the Chamber asked the parties to submit

  2. 1 their closing arguments in writing, in which they would

    2 specify the envisaged duration of their intervention

    3 for the closing arguments. The parties did not specify

    4 how long they intended to take.

    5 During the Status Conference of the 24th of

    6 August, 1998, the parties agreed to submit their final

    7 briefs on the same date, but they said nothing

    8 regarding the subject of a possible rebuttal and

    9 rejoinder after the closing arguments.

    10 The Chamber has reserved this afternoon and

    11 tomorrow morning for this sitting, in view of the fact

    12 that the parties have an extensive amount of work to

    13 cover in their written briefs, and so the Trial Chamber

    14 thought that this afternoon should be devoted to the

    15 Prosecution and tomorrow morning to the Defence.

    16 Nonetheless, we have two issues which I

    17 should like to address to the parties before they

    18 proceed with their closing arguments. The first

    19 question is, have the parties any idea regarding the

    20 envisaged time needed for the closing arguments? The

    21 second question is whether the parties intend to have a

    22 rebuttal or rejoinder or will they be content with the

    23 closing arguments? Those are the two preliminary

    24 questions that we should like to hear your responses

    25 to.

  3. 1 Before answering this question, I should like

    2 the Prosecutor to speak first and then the Defence.

    3 Mr. Niemann, you have the floor.

    4 MR. NIEMANN: If Your Honours please. The

    5 way that we, the Prosecution, had intended to approach

    6 this matter was that I would address you on questions

    7 of law, and my colleague, Mr. Meddegoda, would address

    8 you on questions of facts. It was my intention to

    9 speak for approximately an hour and three quarters,

    10 allowing then the time for the break, if there was to

    11 be a break. I understand that my colleague,

    12 Mr. Meddegoda, will speak for approximately the same

    13 time. We will try and dispose of it in the course of

    14 this afternoon. I don't know whether Mr. Meddegoda

    15 will completely finish in that time, but if he does

    16 have to run over, he will, no doubt, at the time seek

    17 Your Honours' indulgence and take the matter up at that

    18 point.

    19 Your Honours, with respect to the question of

    20 the rebuttal case, it's hard for me at this stage to

    21 indicate whether or not we would be wanting to say

    22 anything to you in rebuttal, because, of course, as

    23 Your Honours appreciate, anything we say in rebuttal

    24 will arise out of matters which will be addressed by my

    25 colleague, Mr. Mikulicic, in his address.

  4. 1 I only envisage addressing Your Honours on

    2 matters which are new or haven't, in fact, been covered

    3 in any of the material that has been presented, either

    4 in our written address or in the addresses that we are

    5 about to deliver now. I would envisage, Your Honours,

    6 trying to traverse matters that have already been

    7 covered. We would leave it to Your Honours.

    8 If my colleague, Mr. Mikulicic, comes back

    9 with something contrary to what I've said -- I expect

    10 that to happen -- I would leave it to Your Honours then

    11 to determine which way to go on the matter. It's only

    12 if Mr. Mikulicic is to raise something which I haven't

    13 foreshadowed and it is of sufficient importance that I

    14 would seek to address you in rebuttal on those

    15 matters.

    16 Other than that, Your Honours, we would

    17 envisage taking up all of the time this afternoon at

    18 least for us to deliver our submissions.

    19 JUDGE RODRIGUES: Mr. Niemann, could you

    20 also, at the same time, introduce the Prosecution team,

    21 please?

    22 MR. NIEMANN: I'm sorry, Your Honours. I

    23 should have said that. Good afternoon, Your Honours.

    24 My name is Niemann. I appear with my colleagues,

    25 Mr. Meddegoda, and Mr. Saxon is assisting us at the bar

  5. 1 table today in place of Ms. Erasmus who is not

    2 available this afternoon, if Your Honours please.

    3 JUDGE RODRIGUES: Mr. Mikulicic, it is up to

    4 you to comment on the questions I have put to you.

    5 MR. MIKULICIC: Good afternoon, Your

    6 Honours. Good afternoon, my learned friends from the

    7 Prosecution. My name is Goran Mikulicic, and together

    8 with my friend, Mr. Joka, I am the Defence counsel for

    9 Mr. Aleksovski.

    10 In answer to your question, my reply would be

    11 as follows: The Defence plans, within a period of

    12 three hours, to complete its oral closing arguments.

    13 The Defence has not prepared in advance for any kind of

    14 rejoinder. However, should the need arise, and this

    15 would stem from any allegations or statements made on

    16 the Prosecution side, then naturally, the Defence will

    17 respond.

    18 Similarly, the Defence wishes to say that it

    19 will not go back to certain issues that have been

    20 covered in our written brief but that it will only

    21 focus on certain points which it considers to be of the

    22 greatest importance for judgement in this case.

    23 JUDGE RODRIGUES: Thank you, Mr. Mikulicic.

    24 Mr. Marc Dubuisson, could you call the case,

    25 please, for the benefit of the transcript?

  6. 1 THE REGISTRAR: IT-95-14/1-T, the Prosecutor

    2 versus Zlatko Aleksovski.

    3 JUDGE RODRIGUES: Thank you, Mr. Marc

    4 Dubuisson.

    5 I think that we can begin with our work, and

    6 we are going to organise ourselves as follows: We

    7 shall assume that we began at 2.00, because, from the

    8 standpoint of the interpreters, we did, indeed. We

    9 will work for one hour, ten minutes, after which we

    10 will have a 20-minute break, and then we will work

    11 again for another one-hour-and-ten-minute session, a

    12 20-minute break, and then a period of work again, so

    13 that we know what the timetable is.

    14 Having stated that, I give the floor to Mr.

    15 Niemann to begin with his closing arguments.

    16 Mr. Niemann, you have the floor.

    17 MR. NIEMANN: If Your Honours please.

    18 Your Honours, in this submission, I will try

    19 not to repeat matters which are dealt with in our

    20 written brief which we rely on fully as part of our

    21 closing address.

    22 I do want, Your Honours, to draw your

    23 attention to what I submit is a new and evolving legal

    24 issue relating to the grave breach provisions of the

    25 Geneva Conventions and the questions of how we should

  7. 1 deal with the issue of international armed conflict.

    2 Whereas in our closing brief, we have tended to take a

    3 traditional approach to this question, in this

    4 submission, I wish to examine what are perhaps more the

    5 frontiers of the law and try to enjoin Your Honours to

    6 participate in this important development. Before I do

    7 that, allow me to dwell upon some of the other

    8 significant issues concerning this case.

    9 Firstly, the question of what occurred in the

    10 Lasva Valley and what has often been referred to as

    11 ethnic cleansing: Your Honours, now that we have heard

    12 the evidence, it can be seen that the accused,

    13 Mr. Aleksovski, along with others, participated in a

    14 widespread scheme to ethnically cleanse the Lasva

    15 Valley of the Muslim population.

    16 The part of the operation that was occupied

    17 by Mr. Aleksovski was at the receiving end of the

    18 scheme, but this, in no way, detracts from the

    19 importance of his participation. It was his job to

    20 receive the Muslims in the Kaonik camp, to process

    21 them, and there, where they were subjected to such

    22 horrific conditions, that not only would they be

    23 desperate to get out of the Kaonik prison itself, but

    24 they would be so traumatised that they would want to

    25 leave the Lasva Valley altogether.

  8. 1 Your Honours, it takes a determined effort to

    2 force human beings to give up their homes and lifelong

    3 possessions and go and live somewhere else, especially

    4 if your objective is to achieve this on a permanent

    5 basis. In some parts of the world, we see earthquakes,

    6 floods, fires, and other such natural disasters which

    7 strike with such ferocity and wreak so much damage that

    8 it's hard to imagine why people continue to live there

    9 afterwards. But such is the strength of their

    10 affiliation to their homelands that they persevere,

    11 notwithstanding these incredible events.

    12 Consider then for a moment just how much

    13 physical and psychological pain you would have to

    14 inflict to achieve this by ethnic cleansing.

    15 In 1993, this was the business of the accused

    16 and his associates. It's most unlikely that you will

    17 ever hear the Defence witnesses describe it as ethnic

    18 cleansing, especially if the witnesses were or are in

    19 positions of authority. This is something that, for

    20 the most part, we have to infer from the evidence.

    21 However, we do sometimes get glimpses of this plan,

    22 even when defence witnesses attempt to disguise and

    23 protect the interests of the authorities and

    24 governments, in this case, the government of the

    25 Republic of Croatia, and the government of the HVO. We

  9. 1 do see from Defence witnesses this glimpse of what was

    2 occurring at that time. When we look at the evidence

    3 of the Defence witness Tomislav Rajic, page 3.187, line

    4 23 of the transcript, he said:

    5 "However, in the spring of 1992, when the

    6 first but fairly numerous ... Muslims ... began to

    7 arrive, the refugees, there was a sort of demographic

    8 imbalance, the demographic balance was upset which had

    9 existed until that time ... This upset our cooperation

    10 and the events that followed took place."

    11 Later he was to describe the influx of Muslim

    12 refugees that had interrupted the ethnic balance as

    13 "drastic." That is at page 3.189 of the transcript.

    14 Although this was consistent with their

    15 somewhat bizarre and artificial theme to blame it all

    16 on the Serbs, it brazenly admits to their programme of

    17 ethnic readjustment based on discrimination. However,

    18 the facts put a lie to their claim that it was the

    19 ethnic imbalance which led to the events of 1993

    20 because it wasn't the Muslim refugees from other areas

    21 of Bosnia, who were displaced by the Serbs, who were

    22 forced out of the Lasva Valley, it was the long-term

    23 Muslim residents of the area.

    24 Contrary to the Defence case which sought to

    25 impress upon us the racial tolerance allegedly

  10. 1 possessed by the accused, we have the opposite version

    2 given in the evidence, for example, of the ECMM

    3 monitor, Mr. McLeod, where, in reference to the beating

    4 of Muslims by HVO soldiers, he quotes the accused

    5 Mr. Aleksovski as saying, "Would you shoot a man who

    6 has lost his brother to stop him from abusing

    7 Muslims?" See page 133 of the transcript.

    8 Large criminal enterprises such as that which

    9 occurred in the Lasva Valley in the first half of 1993

    10 cannot be carried out by one person. It takes

    11 governments and large organisations to commit these

    12 crimes, governments whose acts are carried out by their

    13 willing servants. The acts of individual servants may

    14 only form a part of a much bigger and more sinister

    15 criminal act. Sometimes the dimensions of government

    16 crimes are so large-scale that the real content of the

    17 criminal behaviour becomes obscured by bureaucratic

    18 officialdom, but such officialdom should never be

    19 permitted to obscure the reality of the crime itself.

    20 The accused Aleksovski was one such willing

    21 servant. Of course, he didn't have all the power, he

    22 was not the most senior political or military figure in

    23 the region, but nonetheless his acts were an integral

    24 part of a larger crime.

    25 What then is the crime with which we are

  11. 1 dealing?

    2 The Geneva Convention of 1949, picked up and

    3 applied by the Statute of this Tribunal, does not make

    4 the waging of a war a criminal offence. The concise

    5 position is this: War or armed conflict is not

    6 prohibited, but if engaged in, then it must be strictly

    7 according to the Geneva Conventions. Otherwise, the

    8 Conventions are breached and criminal liability will

    9 attach.

    10 In other words, it is not a defence to come

    11 before this Tribunal and say, "Well, we engaged in war

    12 or armed conflict, and we tried, where possible, to

    13 comply with the Geneva Conventions, but times were

    14 tough and so we could not do any better." This is not

    15 even a mitigating factor when it comes to sentencing.

    16 Under international law, if you must engage

    17 in war or if you must participate in armed conflict,

    18 then you must abide by the Geneva Conventions of 1949.

    19 When dealing with a similar argument by the

    20 Defence in the case of The Prosecutor v. Celebici in

    21 their judgement of the Trial Chamber, IT-96-21-T at

    22 paragraph 1.117, page 381, the Trial Chamber said as

    23 follows:

    24 "It is the position of the defence that, in

    25 light of the overall situation in the Konjic

  12. 1 municipality at the time, no criminal liability can

    2 attach to the accused, as the conditions prevailing in

    3 the Celebici prison camp were the best that could be

    4 provided. The Trial Chamber must, as a matter of law,

    5 reject this view. As set out above, the legal

    6 standards here at issue are absolute, not relative.

    7 They delineate a minimum standard of treatment from

    8 which no derogation can be permitted. Accordingly, it

    9 is the Trial Chamber's view that a detaining power, or

    10 those acting on its behalf, cannot plead a lack of

    11 resources as a legal justification for exposing the

    12 individuals to conditions of detention that are

    13 inhumane."

    14 The contention that the conditions endured by

    15 the Kaonik detainees were no worse than those endured

    16 by the free Croatian community, Bosnian Croatian

    17 community, does not stand up to scrutiny in any event.

    18 The reality was that the free Bosnian Croatian

    19 community was not illegally arrested, they were not

    20 illegally detained, they were not sent to the front

    21 line to dig trenches when conditions were dangerous.

    22 The Bosnian Croatian volunteers and conscripts only

    23 worked at night when it was safer from the effects of

    24 snipers. They were not under armed guard, they were

    25 not forced to work hours on end without a break. For

  13. 1 the most part, they were given the best protection that

    2 could be provided. For the Muslim Kaonik detainees,

    3 the evidence demonstrates that the conditions for them

    4 were quite the opposite.

    5 The term "ethnic cleansing" may not as such

    6 appear in the Geneva Conventions. It should not

    7 therefore be thought that this whole abhorrent business

    8 may somehow have slipped through the fingers of the

    9 parcel of prohibited conducts as prescribed by the

    10 Conventions. There is no question that the conduct

    11 necessary to achieve ethnic cleansing is well and truly

    12 prohibited by the Conventions.

    13 For instance, Article 49 of the Civilian

    14 Convention makes forcible transfer or deportations of

    15 civilians illegal. The grave breach provisions,

    16 Article 147, prohibits unlawful deportation, transfer,

    17 or confinement of protected persons. Common Article 3

    18 prohibits adverse distinction of persons based on race,

    19 colour, religion, or other similar criteria.

    20 Therefore, there is no question that the acts necessary

    21 to effect ethnic cleansing are themselves prohibited,

    22 and this, in turn, is properly reflected in the various

    23 charges in the indictment.

    24 Accordingly, if, in the course of ethnic

    25 cleansing or in order to achieve ethnic cleansing, you

  14. 1 subject people to inhumane treatment, if you wilfully

    2 cause great suffering or serious injury to body or

    3 health, or if you inflict outrages upon the personal

    4 dignity, then this conduct is directly prohibited by

    5 the Conventions.

    6 Accordingly, it was, in our submission,

    7 manifestly illegal to round up the civilian Muslim

    8 population of the Busovaca and Vitez municipalities and

    9 then illegally intern them in the Kaonik prison solely

    10 on the basis of their ethnicity.

    11 When these people were illegally interned in

    12 the Kaonik prison, it was manifestly illegal to beat

    13 them; to deprive them of proper food, hygiene, and

    14 medical treatment; to overcrowd them under inhumane

    15 conditions; to deprive them of proper bedding and

    16 warmth. It was manifestly illegal to send them to the

    17 front in dangerous conditions, and there to force them

    18 to dig trenches for the HVO. When at the front, it was

    19 manifestly illegal to rob them and abuse them. It was

    20 manifestly illegal to force them to work for hours on

    21 end without adequate rest or nutrition.

    22 Dealing now with the question of the illegal

    23 confinement of civilians.

    24 The question of the illegality of the

    25 confinement of civilians can be a difficult matter if

  15. 1 the State can justify that they represented a serious

    2 threat to the State, but the threat has to be real.

    3 As noted again in the Celebici judgement,

    4 paragraph 1.134, page 387, Their Honours said:

    5 "... the Trial Chamber is convinced that a

    6 significant number of the civilians were detained in

    7 the Celebici camp although there existed no serious and

    8 legitimate reason to conclude that they seriously

    9 prejudiced the security of the detaining power. To the

    10 contrary, it appears that the confinement of the

    11 civilians in the Celebici camp was a collective measure

    12 aimed at a specific group of persons based mainly on

    13 their ethnic background and not as a legitimate

    14 security measure."

    15 As Your Honours remember, in that case, they

    16 were Serb detainees.

    17 "As stated above --"

    18 I'm quoting on from the Trial Chamber's

    19 decision.

    20 " -- the mere fact that a person is a

    21 national of or aligned with an enemy party cannot be

    22 considered as threatening the security of the opposing

    23 party where he is living and therefore be a valid

    24 reason for interning him."

    25 Your Honours, the evidence in this case bears

  16. 1 this out even more than what was the case in Celebici

    2 because the fact is that in this case some people were

    3 sent home from time to time. "Well, they're allowed to

    4 go home with one of the guards," which all suggests

    5 that they could not have in any way been a serious

    6 threat to the HVO.

    7 Turning now to the issue of human shields.

    8 With respect to the use of detainees as human

    9 shields, Article 28 of the Civilian Geneva Convention 4

    10 of 1949 provides that the presence of protected persons

    11 may not be used to render certain points or areas

    12 immune from military operations.

    13 Similarly, Article 23 of the Prisoners of War

    14 Third Geneva Convention provides that the presence of

    15 prisoners of war shall not be used to render certain

    16 points or areas immune from military operations.

    17 Both of these provisions need to be read in

    18 conjunction with Article 50, paragraph 7, of the 1977

    19 Additional Protocol 1, which provides that the presence

    20 or movements of the civilian population or individuals

    21 shall not be used to render certain points or areas

    22 immune from military operations, in particular in

    23 attempts to shield military objectives from attacks or

    24 to shield, favour, or impede military operations. The

    25 parties to the conflict shall not direct the movement

  17. 1 of civilian populations or individual civilians in

    2 order to attempt to shield military objectives from

    3 attacks or to shield military operations.

    4 The net effect of these provisions is that

    5 using people as human shields is illegal and contrary

    6 to the Geneva Conventions and the Additional Protocols

    7 of 1977. Therefore, the use of the Muslim prisoners at

    8 the Kaonik prison camp as human shields in 1993 was

    9 manifestly illegal.

    10 Turning now to the question of international

    11 armed conflict.

    12 In the judgement of the Trial Chamber in The

    13 Prosecution v. Zejnil Delalic, the Celebici case, of

    14 the 16th of November, 1998, the Trial Chamber said,

    15 paragraph 202, page 76:

    16 "While Trial Chamber II in the Tadic case

    17 did not initially consider the nature of the armed

    18 conflict to be a relevant consideration in applying

    19 Article 2 of the Statute, the majority of the Appeals

    20 Chamber in the Tadic jurisdictional decision did find

    21 that the grave breaches of the Geneva Conventions could

    22 be only committed in international armed conflicts and

    23 this requirement was thus an integral part of Article 2

    24 of the Statute."

    25 In his separate opinion, however, Judge

  18. 1 Abi-Saad opined that "a strong case can be made for the

    2 application of Article 2 of the Statute even when the

    3 incriminated acts take place in an internal conflict.

    4 The Appeals Chamber did indeed recognise that a change

    5 in the customary law scope of the 'grave breach

    6 regimes' in this direction may be occurring. This

    7 Trial Chamber is also of the view that the possibility

    8 that customary law has developed the provisions of the

    9 Geneva Conventions since 1949 to constitute an

    10 extension of the system of 'grave breaches' to internal

    11 armed conflicts should be recognised."

    12 Your Honours, this advance in the law was

    13 picked up and advanced even a little further very

    14 recently in the jurisdictional decision of Trial

    15 Chamber III in The Prosecutor v. Dario Kordic and

    16 another, IT-95-14/2-PT of the 2nd of March, 1999, when

    17 the Trial Chamber, paragraph 15, acknowledged with

    18 approval the step taken in Celebici.

    19 Perhaps more interestingly, at paragraph 31,

    20 when considering the Additional Protocols of the Geneva

    21 Conventions of 1977, including Protocol 1 which, as

    22 Your Honours know, is the protocol dealing with

    23 international armed conflicts, Trial Chamber III says

    24 this:

    25 "There is no possible doubt as to the

  19. 1 customary status of these specific provisions as they

    2 reflect core principles of humanitarian law that can be

    3 considered as applying to all armed conflicts whether

    4 intended to apply to international or non-international

    5 conflicts."

    6 Thus, in my respectful submission, Trial

    7 Chamber III has taken the advance of unhesitatingly

    8 expressing the customary status of the Additional

    9 Protocols, including Protocol 1, with respect to their

    10 application to conflicts irrespective of whether the

    11 conflict is internal or international.

    12 Accordingly, in my submission, it is only

    13 logical that the grave breach provisions of the

    14 Conventions in themselves, which are, in fact, older in

    15 time, should also, without doubt, enjoy such customary

    16 status. All it takes is for Your Honours to say so.

    17 I will now endeavour to assist Your Honours

    18 in giving you at least one path for you to consider in

    19 reaching what I submit is the sensible and inevitable

    20 result.

    21 At the outset, let me say that on the

    22 evidence, the existence of an international armed

    23 conflict at the relevant times and place has, we say,

    24 been unquestionably proved beyond a reasonable doubt,

    25 so that any advance that Your Honours might make in the

  20. 1 law can in no way affect the position of the accused.

    2 When considering the grave breach provisions

    3 of the Geneva Conventions, it is interesting to compare

    4 these Conventions with the Convention on genocide.

    5 Article 6 of the Genocide Convention of 1948

    6 provides that:

    7 "... persons charged with genocide ... shall

    8 be tried ... by a ... State or international penal

    9 tribunal ... which States have accepted its

    10 jurisdiction."

    11 Article 8 allows States to call upon the

    12 United Nations to take appropriate action.

    13 Clearly, the drafters of the Genocide

    14 Convention contemplated that it would have a truly

    15 international enforcement mechanism. International in

    16 the sense that international bodies would play a direct

    17 part in the Convention's enforcement. Thus,

    18 international tribunals would play a part in the

    19 prevention and suppression of acts of genocide.

    20 This Genocide Convention stands in stark

    21 contrast to the four Geneva Conventions of 1949 which

    22 makes no reference to "International Tribunals." The

    23 four Geneva Conventions contemplated international

    24 enforcement, but enforcement would be undertaken by

    25 States on behalf of the International Community. There

  21. 1 is no suggestion of this being done by international

    2 tribunals, as is the case with the Genocide

    3 Conventions. Accordingly, if the Statute of this

    4 Tribunal did not expressly refer to the Geneva

    5 Conventions of 1949 in Article 2, then the Tribunal

    6 would only have jurisdiction with respect to the

    7 Conventions if the Conventions, and more particularly

    8 the "grave breach" provision, had become part of

    9 international customary law. This being so, the Geneva

    10 Conventions as drafted were expressly intended to be

    11 enforced by States.

    12 As the Appeals Chamber noted in the Tadic

    13 jurisdictional appeal, page 46, paragraph 80:

    14 "The international armed conflict element

    15 generally attributed to the grave breach provisions of

    16 the Geneva Conventions is merely a function of the

    17 system of universal mandatory jurisdiction that those

    18 provisions create. The international armed conflict

    19 requirement was a necessary limitation on the grave

    20 breaches system in light of the intrusion on State

    21 sovereignty that such mandatory universal jurisdiction

    22 represents. State parties to the 1949 Geneva

    23 Conventions did not want to give other States

    24 jurisdiction over serious violations of international

    25 law committed in their internal conflicts, at least not

  22. 1 the mandatory universal jurisdiction involved in the

    2 grave breach system."

    3 However, this Tribunal is not concerned with

    4 the issue of State sovereignty. Under Article 2,

    5 paragraph 7 of the United Nations Charter, "the United

    6 Nations shall not interfere with matters which are

    7 essentially within the domestic jurisdiction of any

    8 State." But measures under Chapter 7 are expressly

    9 excluded from this general restriction. This Tribunal

    10 was created by the Security Council as a Chapter 7

    11 measure. Furthermore, the Statute of the Tribunal

    12 expressly gives it jurisdiction by virtue of Article 8

    13 of our Statute. Article 8, "Territorial Jurisdiction,"

    14 is as broad as could be enjoyed by any State court in

    15 the exercise of domestic jurisdiction.

    16 The Statute goes even further and gives the

    17 Tribunal jurisdiction much wider than that even enjoyed

    18 by most State courts because Article 9, paragraph 2,

    19 provides that the Tribunal, in the exercise of its

    20 jurisdiction, shall have primacy over State courts, and

    21 Article 10, paragraph 1, limits the jurisdiction of

    22 State courts.

    23 In light of these Articles, it is hard to

    24 imagine a more intrusive jurisdictional limitation on

    25 the sovereignty of a State. Indeed, it becomes absurd,

  23. 1 in my submission, to speak of the need to respect State

    2 sovereignty by not applying the grave breach provisions

    3 until and unless an international armed conflict is

    4 established because of a concern not to intrude into

    5 the sovereignty of another State, yet at the same time

    6 expressly asserting primacy over the courts of that

    7 very same State. It's interesting that even States

    8 themselves are not quite so concerned about sovereignty

    9 when the fate of innocent human beings is at stake.

    10 Even the Geneva Conventions themselves relegates State

    11 sovereignty to second place in cases of doubt.

    12 For example, Article 5 of the Geneva

    13 Convention 3 contemplates that a State court will

    14 exercise jurisdiction and assume, in cases of doubt,

    15 that the Conventions apply unless the contrary is

    16 established.

    17 This is consistent with how most domestic

    18 courts operate on jurisdictional matters. The

    19 Prosecution rarely has to prove jurisdiction beyond a

    20 reasonable doubt as an element of the offence. The

    21 Prosecution brings the case, and the Defence can

    22 challenge jurisdiction and endeavour to prove, on the

    23 balance of probabilities, that the courts do not have

    24 jurisdiction. This approach was clearly contemplated

    25 by Rule 72(A)(i) of the Tribunal's own Rules which

  24. 1 contemplates challenges to the jurisdiction of the

    2 Tribunal as being a preliminary issue.

    3 THE INTERPRETER: Could we ask counsel to

    4 slow down, please?

    5 MR. NIEMANN: Further, when dealing with the

    6 whole question of the decline of State sovereignty, I

    7 could find no more eloquent expression than that

    8 contained in the Tadic Jurisdictional Appeal Judgement

    9 itself when the majority held, at page 54, paragraph

    10 97, where Their Honours said: "... A State-sovereignty

    11 approach has been gradually supplanted by a

    12 human-being-oriented approach ... It follows that in

    13 the area of armed conflict, the distinction between

    14 interstate and civil wars is losing value as far as

    15 human beings are concerned."

    16 The Appeals Chamber then goes on to pose the

    17 rhetorical question: "Why protect civilians from

    18 belligerent violence or ban rape, et cetera ... when

    19 two sovereign States are engaged in war, and yet

    20 refrain from enacting the same bans ... when armed

    21 violence has erupted only within the territory of the

    22 sovereign State?"

    23 The Appeals Chamber then answers: "If

    24 international law, while of course duly safeguarding

    25 the legitimate interests of States, must gradually turn

  25. 1 to the protection of human beings, it is only natural

    2 that the aforementioned dichotomy should gradually lose

    3 its weight."

    4 At page 64, paragraph 119, the Appeals

    5 Chamber declares as preposterous the notion that

    6 weapons prohibited in international armed conflict may

    7 not be prohibited in internal armed conflict.

    8 The grave breach provisions are at the very

    9 heart of the Geneva Conventions. Their application is

    10 essential to the continued operations of these most

    11 important Conventions.

    12 When considering this matter, we should ask

    13 ourselves the following questions: Is it appropriate

    14 that everything should hang on the classification of

    15 the conflict as being international? Should otherwise

    16 clearly guilty war criminals escape conviction and

    17 punishment because there exists politically motivated

    18 arguments, often promulgated by the guilty warring

    19 States themselves who are anxious to avoid the

    20 imposition of war reparations or other consequences by

    21 having the conflict internal rather than international

    22 in character?

    23 The issue of the classification of the

    24 conflict has, in my submission, nothing to do with the

    25 individual participants. It is a matter of concern

  26. 1 only to the State involved.

    2 Do you think that the classification of the

    3 conflict was a factor which weighed heavily on the mind

    4 of an accused person when he or she was about to commit

    5 a crime contrary to the grave breach provisions of the

    6 Geneva Conventions? More importantly, do you think

    7 that the victims of those crimes would feel that an

    8 acquittal, based on the fact that the conflict was

    9 arguably internal, would, in their mind, constitute

    10 justice? Would such a technical, artificial,

    11 irrelevant, and unsatisfactory conclusion generally

    12 contribute to reconciliation and restoration of peace

    13 in the former Yugoslavia?

    14 In the Celebici decision again, the Trial

    15 Chamber, in my submission, very correctly interpreted

    16 the Geneva Conventions when it cited with approval the

    17 commentary on the 4th Geneva Convention, paragraph

    18 263: "The Commentary to the Fourth Geneva Convention

    19 charges us not to forget that 'The Conventions have

    20 been drawn up first and foremost to protect individuals

    21 and not to serve State interests,' and thus it is the

    22 view of the Trial Chamber that their protection should

    23 be applied to as broad a category of persons as

    24 possible."

    25 If the classification of the conflict as an

  27. 1 international conflict had to be proved beyond a

    2 reasonable doubt as an element of the offence and that

    3 this was the unequivocal state of the law, then I guess

    4 the answer to all these questions might have to be

    5 "Yes," irrespective of the fact that they may be

    6 artificial or irrespective of the fact that they may be

    7 irrelevant.

    8 However, in my respectful submission, this is

    9 not the case. It has not been expressly stated

    10 anywhere that the classification of the conflict is an

    11 element of the offence which has to be proved beyond a

    12 reasonable doubt.

    13 Why do I say this? As I've stated above, the

    14 1949 Geneva Conventions had not envisaged that the

    15 grave breach provisions of the Geneva Conventions would

    16 be enforced by an International Tribunal, such as this

    17 Tribunal. Accordingly, the whole focus of their

    18 attention was on the Conventions being enforced by

    19 State courts. State courts are justifiably concerned

    20 with exercising jurisdiction over events that occurred

    21 in the territory of another State.

    22 An instance, for example, is the caution

    23 taken by the High Court in Britain recently over the

    24 arrest of General Pinochet. One of the primary issues

    25 at the heart of the matter was should a British court

  28. 1 try a person in Britain for crimes committed in Chile.

    2 This reluctance is not limited to British courts but

    3 operates throughout the world.

    4 When the drafters of the Geneva Conventions

    5 introduced the idea that State courts would enforce the

    6 grave breach provisions, they had to address the issue

    7 of enforcement by State courts, other than the State

    8 where the crimes were committed because they were

    9 acutely aware of the reluctance of State courts to

    10 interfere with another State court's jurisdiction.

    11 In an effort to assuage this concern by State

    12 courts, they introduced a number of measures to

    13 encourage State courts to accept jurisdiction. The

    14 primary issue was whether or not the conflict was

    15 international or internal. If it was international,

    16 the drafters figured that the problem would be solved

    17 because the objection to State courts intruding on the

    18 exclusive jurisdiction of another State court

    19 disappeared, that is, if it is international, it is not

    20 the exclusive jurisdiction of one State, so that

    21 another State could exercise jurisdiction.

    22 What then has this got to do with the

    23 Tribunal? In my submission, absolutely nothing. The

    24 very important question we should ask ourselves is

    25 this: Is it appropriate for reasons of comity for this

  29. 1 Tribunal to be hesitant about exercising jurisdiction

    2 over persons responsible for serious violations of

    3 international humanitarian law, which include grave

    4 breaches committed in the territory of the former

    5 Yugoslavia since 1991? I sincerely hope not. It is

    6 the whole purpose of our being. It is the mandate laid

    7 down for us by the Security Council. Indeed, it's the

    8 very thing that is expected of us.

    9 As observed by the Trial Chamber in the

    10 Celebici judgement, paragraph 263, Their Honours said:

    11 "It would be contrary to the intention of the Security

    12 Council, which was concerned with effectively

    13 addressing the situation that it had determined to be a

    14 threat to international peace and security, and with

    15 ending the suffering of all those caught up in the

    16 conflict, for the International Tribunal to deny the

    17 application of the Fourth Geneva Convention to any

    18 particular group of persons solely on the basis of

    19 their citizenship status under domestic law."

    20 The fact that the drafters of the Tribunal

    21 Statute gave the Tribunal territorial and temporal

    22 jurisdiction under Article 8 and primacy over State

    23 courts in Article 9(2) leads, in my submission, to the

    24 inescapable conclusion that the Security Council

    25 intended the Tribunal to get on with its mandate and

  30. 1 not concern itself with the kind of sovereignty issues

    2 that inhibit State courts from exercising jurisdiction

    3 under similar circumstances.

    4 Clearly, in my submission, that is why

    5 Article 2 of the Tribunal Statute, which incorporates

    6 the grave breach provisions as part of the offence

    7 provisions of the Statute, makes no mention of

    8 international armed conflict. Thus to maintain the

    9 view that an international armed conflict must be

    10 proved beyond a reasonable doubt as an element of the

    11 offence before the Tribunal can exercise jurisdiction

    12 is, in my submission, wrong at law.

    13 In our submission, it is also quite

    14 erroneous, as a matter of law, for the Defence to

    15 assert that the international armed conflict has to

    16 reach down to the very place where the crime was

    17 committed.

    18 In our submission, the Prosecution has no

    19 legal obligation to prove that the Republic of Croatia

    20 or the HV were, in any way, directly involved in the

    21 running of the Kaonik prison facility, or that the

    22 prisoners were gathered up by the HV, or that somehow

    23 Mr. Aleksovski was employed by the HV, or even that the

    24 HVO ran the Kaonik facility as agents for the Republic

    25 of Croatia or the HV.

  31. 1 When dealing with the parameters of the

    2 conflict, again the Celebici Trial Chamber expressed

    3 the following opinion, page 79, paragraph 209; they

    4 said: "Before proceeding any further, the Trial

    5 Chamber deems it necessary to address the possibility

    6 that there may be some confusion as to the parameters

    7 of this concept of an international armed conflict. We

    8 are not here examining the Konjic municipality and the

    9 particular forces involved in the conflict in that area

    10 to determine whether it was international or internal.

    11 Rather, should the conflict in Bosnia-Herzegovina be

    12 international, the relevant norms of international

    13 humanitarian law apply throughout its territory until

    14 the general cessation of hostilities, unless it can be

    15 shown that the conflict in some areas were separate

    16 internal conflicts unrelated to the larger

    17 international armed conflict."

    18 JUDGE RODRIGUES: Mr. Niemann, excuse me for

    19 interrupting you, but I see on the English transcript,

    20 there is a reference to "Kaonik municipality," and I

    21 heard "Konjic municipality."

    22 MR. NIEMANN: It should be "Konjic."

    23 JUDGE RODRIGUES: I don't know if that's a

    24 mistake.

    25 MR. NIEMANN: I'm quoting from Their Honours'

  32. 1 decision, and it's "Konjic."

    2 JUDGE RODRIGUES: Very well. You may

    3 continue. Thank you.

    4 MR. NIEMANN: Thank you.

    5 The Trial Chamber in Celebici continue, at

    6 page 80, paragraph 212, to say: "The JNA had been

    7 providing arms and equipment to the Serb population in

    8 Bosnia-Herzegovina since 1991, who had in turn been

    9 organising themselves into various units and militia in

    10 preparation for combat. Similarly, the Bosnian Croats

    11 had been receiving such support from the Government of

    12 Croatia and its armed forces."

    13 Again, in paragraph 213, they say: "The

    14 United Nations Security Council and the European

    15 Community recognised this involvement of these and

    16 other outside forces in the conflict by calling for the

    17 Governments of Croatia and Serbs to exert 'their

    18 undoubted influence' in demanding the cessation of all

    19 forms of outside interference."

    20 In paragraph 214 and 215, they conclude: "On

    21 the basis of this evidence alone, the Trial Chamber can

    22 conclude that an international armed conflict existed

    23 in Bosnia-Herzegovina at the date of its recognition as

    24 an independent State on 6 April, 1992. There is no

    25 evidence to indicate the hostilities which occurred in

  33. 1 the Konjic municipality at that time were part of a

    2 separate armed conflict, and indeed there is some

    3 evidence of the involvement of the JNA in the fighting

    4 there. It is evident that there was no general

    5 cessation of hostilities in Bosnia-Herzegovina until

    6 the signing of the Dayton Peace Agreement in November

    7 1995."

    8 Likewise, in my submission, there is no

    9 evidence to indicate that the hostilities which

    10 occurred in the Busovaca and Vitez municipalities were

    11 part of a separate armed conflict, and, indeed, there

    12 is some evidence of the involvement of the HV in the

    13 fighting there.

    14 We have evidence of the rounding up of the

    15 Muslim civilians by members of the HV, and we certainly

    16 have evidence of a connection between the two armies of

    17 the HVO and the HV. Professor Bianchini expressed the

    18 opinion that, for all intents and purposes, they were

    19 the same army.

    20 Again, in the Celebici judgement, the Trial

    21 Chamber made a number of interesting findings about the

    22 nature of the participants to the conflict. In

    23 paragraph 187, page 72, they refer to the JNA which

    24 became the VJ and the VRS which was controlled by the

    25 Bosnian Serb administration in Pale. They then go on

  34. 1 to say: "The HVO was in a similar position to the VRS,

    2 in that it was established by the self-proclaimed

    3 para-state of the Bosnian Croats as its army and

    4 operated from territory under its control."

    5 Moreover, the Trial Chamber, in reaching its

    6 conclusion that an international armed conflict did

    7 exist on the territory of Bosnia-Herzegovina at the

    8 relevant time in the Celebici judgement, declined to

    9 follow the decision of the majority in the Tadic case,

    10 considered that the Nicaragua case was not appropriate

    11 as a source of authority, having regard to the nature

    12 of the proceedings, and fully accepted the dissenting

    13 judgement of Judge McDonald, as she then was, on this

    14 issue of the involvement of the JNA in

    15 Bosnia-Herzegovina.

    16 This is not the first time that such a

    17 decision has been made. In the Rajic Rule 61 hearing,

    18 IT-95-12-R61, at page 9, paragraph 13, the Trial

    19 Chamber said: "The Chamber finds that for the purposes

    20 of the application of the grave breach provisions of

    21 the Geneva Convention 4, the significant and continuous

    22 military action by the armed forces of Croatia in

    23 support of the Bosnian Croats against the forces of the

    24 Bosnian government on the territory of the latter was

    25 sufficient to convert the domestic conflict between the

  35. 1 Bosnian Croats and the Bosnian Government into an

    2 international one."

    3 Nor is there any basis to the suggestion by

    4 the Defence, through the evidence of Admiral Domazet

    5 and others, that the presence of the forces of the

    6 Republic of Croatia were merely there because it had to

    7 protect border regions of Croatia on the Dalmacija

    8 coast and the Krajina. Again in the Rajic Rule 61

    9 hearing, this ruse mounted by the Republic of Croatia

    10 did not fool the Trial Chamber because, at page 12,

    11 paragraph 19, it held: "The material before the Trial

    12 Chamber also suggests that, contrary to Croatia's

    13 claims, Croatian troops were not just stationed in

    14 border areas and that they were involved in hostilities

    15 against the Bosnian --" I'm sorry "and that they were

    16 involved in hostilities against the Bosnian Government

    17 forces in central and southern Bosnia."

    18 Article 2 of the Statute of the Tribunal

    19 does, however, make reference to the protected person

    20 provisions of the Geneva Conventions. In an

    21 examination of these provisions, it does not show

    22 international armed conflict as part of the definition

    23 of protected persons and property. Further, no

    24 analysis of the meaning of "protected persons" would be

    25 complete without looking at the definition of

  36. 1 "protected persons and property" as contained in the

    2 Protocol Additional to the Geneva Convention of 1949.

    3 Paragraph 4 of Article 1 of Protocol 1

    4 extends the ambit of conflict to persons involved in

    5 struggles for self-determination against colonial

    6 domination, alien occupation, or racist regimes. All

    7 or any of these could be in the context of an internal

    8 armed conflict, thus supporting the argument that the

    9 definition of "protected persons" is not entirely

    10 limited to persons involved in international armed

    11 conflict.

    12 Interestingly enough, Additional Protocol 1,

    13 Paragraph 3 of Article 1, expressly provides that the

    14 Protocol supplement the Geneva Conventions of 1949.

    15 Clearly, Article 1(4) of Protocol 1 severs the 1949

    16 Article 2 definition from what was then strictly

    17 "international armed conflicts."

    18 Likewise, the definition of "Prisoner of War"

    19 has been expanded by Protocol 1. Article 43 of the

    20 Additional Protocol expands the party to the conflict

    21 to the armed forces of a party which may not be

    22 recognised by the other party to the conflict. Article

    23 44 of the 1977 Protocols provides that any combatant

    24 covered by the expanded definition in Article 43 who

    25 falls into the hands of an adverse party shall be a

  37. 1 prisoner of war.

    2 If there was ever any doubt that the

    3 prisoners of war interned at the Kaonik prison came

    4 within the definition of prisoner of war by virtue of

    5 the 1949 Geneva Conventions, then that doubt has been

    6 completely resolved by the prisoner of war definitions

    7 as contained in the 1977 Additional Protocols.

    8 Similarly, what is meant by the term

    9 "protected persons" in Article 4 of the Geneva

    10 Conventions of 1949 dealing with civilians would not be

    11 complete without looking to Article 50 and 51 of

    12 Additional Protocol 1 of 1977. Article 50 provides

    13 that a civilian is any person who is not defined as a

    14 prisoner of war by either the Third Geneva Conventions

    15 of 1949 or by the Additional Protocol. Article 50

    16 makes no distinction whatsoever based on nationality or

    17 otherwise.

    18 Accordingly, in my submission, there is no

    19 basis for defining nationality as it appears in Article

    20 4 of the Fourth Convention as something intrinsically

    21 linked to only a conflict of an international

    22 character. Clearly it must mean something more than

    23 that. In my submission, the only logical conclusion is

    24 that it means "civilian" as defined in Article 50 of

    25 Additional Protocol 1.

  38. 1 Accordingly, there is no question that the

    2 Muslims of Busovaca and Vitez, who were non-combatants,

    3 a sizeable proportion of whom found themselves

    4 imprisoned in Kaonik, were civilians within the meaning

    5 of Article 50 of Protocol 1 and were thus protected

    6 persons under the Fourth Geneva Conventions.

    7 Is that a convenient time, Your Honour? Does

    8 Your Honour want me to continue on? I'm mindful of the

    9 time. I think you said one hour and ten minutes.

    10 JUDGE RODRIGUES: Yes. We could stop there

    11 to give you a chance for a rest. As well, the

    12 interpreters can rest too. We will have a break and we

    13 will resume work at 3.30.

    14 --- Recess taken at 3.10 p.m.

    15 --- On resuming at 3.30 p.m.

    16 (The accused entered court)

    17 JUDGE RODRIGUES: Mr. Niemann, let us

    18 continue. We are listening to you.

    19 MR. NIEMANN: I was dealing with the

    20 definition of "civilians" under Geneva Conventions, if

    21 Your Honours please.

    22 In dealing with this question of what

    23 constitutes a civilian under the Fourth Geneva

    24 Conventions, in the Celebici judgement, paragraph 245,

    25 page 92, the Trial Chamber begin with an examination of

  39. 1 the reasoning of the Tadic judgement which, as I stated

    2 above, they declined to follow. They interpreted the

    3 Tadic judgement in the following way: They say that the

    4 connection between the individuals being in the hands

    5 of a party of a foreign nationality and the

    6 classification of the conflict is a key factor in the

    7 reasoning in Tadic because if the individuals were in

    8 the hands of captors of the same nationality, the

    9 conflict could not be international.

    10 They observed, however, at paragraph 251,

    11 that an analysis of the nationality laws of

    12 Bosnia-Herzegovina does not reveal a clear picture. At

    13 the time, the State was struggling to achieve its

    14 independence. In addition, an "international armed

    15 conflict was tearing Bosnia-Herzegovina apart, and the

    16 very issue which was being fought over concerned the

    17 desire of certain ethnic groups within its population

    18 to separate themselves from that State and join with

    19 another State."

    20 After concluding that the Bosnian Serbs in

    21 the hands of Bosnia-Herzegovina were protected persons

    22 for the purposes of the Fourth Geneva Convention, the

    23 Trial Chamber said at paragraph 265:

    24 " ... it is clear that the victims of the

    25 acts alleged in the indictment were arrested and

  40. 1 detained mainly on the basis of their Serb identity.

    2 As such and insofar as they were not protected by any

    3 of the Geneva Conventions, they must be considered to

    4 have been 'protected persons' within the meaning of the

    5 Fourth Geneva Convention as they were regarded by the

    6 Bosnian authorities as belonging to the opposing party

    7 in an armed conflict and as posing a threat to the

    8 Bosnian State."

    9 This interpretation of the Convention is

    10 fully in accordance with the development of the human

    11 rights doctrine which has been increasing in force

    12 since the middle of this century. It would be

    13 incongruous that the whole concept of human rights,

    14 which protects individuals from the excesses of their

    15 own governments, to rigidly apply the nationality

    16 requirement of Article 4 that was apparently inserted

    17 to prevent interference in a State's relations with its

    18 own nationals.

    19 They then quote with approval from Professor

    20 Meron when they say".

    21 " ... in interpreting international law, our

    22 goal should be to avoid paralysing the legal process as

    23 much as possible and, in the case of humanitarian

    24 conventions, to enable them to serve their protective

    25 goals."

  41. 1 After finding that the Bosnian Serb detainees

    2 at the Celebici camp were protected persons, at

    3 paragraph 275 the Trial Chamber then goes on:

    4 "This finding is strengthened by the Trial

    5 Chamber's fundamental conviction that the Security

    6 Council, in persistently condemning the widespread

    7 violations of international humanitarian law committed

    8 throughout the conflict in Bosnia-Herzegovina and

    9 indeed in establishing this International Tribunal to

    10 prosecute and punish such violations, did not consider

    11 that the protection of the whole corpus of

    12 international humanitarian law could be denied to

    13 particular groups of individuals on the basis of the

    14 provisions of domestic citizenship legislation. The

    15 International Tribunal must therefore take a broad and

    16 principled approach to the application of the basic

    17 norms of international humanitarian law, norms which

    18 are enunciated in the four Geneva Conventions. In

    19 particular, all those individuals who took no active

    20 part in hostilities and yet found themselves engulfed

    21 in the horror and violence of war should not be denied

    22 the protection of the Fourth Geneva Convention which

    23 constitutes the very basis of the law concerned with

    24 such persons."

    25 How then do we interpret what the Appeals

  42. 1 Chamber meant when it said in the Tadic jurisdictional

    2 appeal at page 46, paragraph 81, that the reference to

    3 "protected persons and property," as set out in the

    4 various "protected persons and property" Articles of

    5 the Conventions, determines that these persons are only

    6 protected if they are perforce of those provisions

    7 caught in an international armed conflict," and that

    8 "... Article 2 of the (Tribunal) Statute only applies

    9 to offences committed within the context of an

    10 international armed conflict"?

    11 Not everything that occurs in the course of a

    12 criminal trial has to be proved beyond a reasonable

    13 doubt. The only matters that do have to be proved by

    14 the Prosecution beyond a reasonable doubt are those

    15 matters which constitute the elements of the offence.

    16 Accordingly, if the Prosecution fails to satisfy the

    17 Tribunal of a fact beyond a reasonable doubt as to an

    18 essential element of the offence, then the accused is

    19 entitled to an acquittal.

    20 At no stage did the Appeals Chamber in the

    21 Tadic jurisdictional appeal say that the finding of an

    22 international armed conflict was an essential element

    23 of the offence that must be proved beyond a reasonable

    24 doubt by the Prosecution.

    25 In the course of almost all criminal trials

  43. 1 there arises issues of law which have to be decided

    2 upon as questions of fact. One example is an objection

    3 raised by the Defence to the admission of a piece of

    4 evidence on the grounds of its relevance. The decision

    5 of whether or not the evidence is relevant is a legal

    6 question. The basis of that legal question is grounded

    7 in fact. Accordingly, the Court hears argument and

    8 looks to other evidence and to the details of the

    9 particular piece of disputed evidence itself, and upon

    10 looking at all these bits and pieces of evidence, a

    11 legal determination is made as to whether the evidence

    12 is relevant or not. The facts adduced in support of

    13 the argument that a particular piece of evidence is

    14 relevant do not have to go so far as to be proved

    15 beyond a reasonable doubt.

    16 In the Celebici judgement, paragraph 602, page

    17 214, referred in passing to this issue of the burden

    18 and standard of proof in certain circumstances. Their

    19 Honours say:

    20 "The burden is different when the accused

    21 makes the allegation ..."

    22 And then the important part which I wish to

    23 emphasise:

    24 " ... or when the allegation made by the

    25 Prosecutor is not an essential element of the charges

  44. 1 in the indictment."

    2 Their Honours say:

    3 "In such a situation, the legal burden in a

    4 civil case will satisfy the standard required ..."

    5 This standard is, of course, the balance of

    6 probabilities or the preponderance of the evidence.

    7 Other examples of this would include various

    8 of the allegations as contained in the indictment.

    9 With respect to some of these particular allegations,

    10 the Prosecution would seek to prove them on a balance

    11 of probabilities but would not have to satisfy you

    12 beyond a reasonable doubt.

    13 By way of illustration, paragraph 7 of the

    14 indictment sets out particulars of the accused. It

    15 says that his parents are Tale and Eva. For

    16 identification purposes of the accused, it may very

    17 well be useful for the Prosecution to prove that his

    18 parents were, in fact, Tale and Eva. But if this was

    19 not proved beyond a reasonable doubt, the accused would

    20 not, on this basis, be entitled to an acquittal.

    21 There is no question that the way the Geneva

    22 Conventions were drafted it was intended that the grave

    23 breach provisions would operate in the context of an

    24 international armed conflict, and I explain that the

    25 reason for this was so that State courts could exercise

  45. 1 universal jurisdiction. Further, the "protected

    2 persons" would be persons who found themselves caught

    3 up in an international armed conflict. I do not

    4 dispute this and I could not dispute it having regard

    5 to the wording and construction of the Conventions.

    6 However, in this case, the Prosecution

    7 asserts that the existence of an international armed

    8 conflict in Bosnia in 1993 is more in the nature of a

    9 background jurisdictional component of the charge which

    10 is a legal question and does not have to be proved

    11 beyond a reasonable doubt in order for the accused to

    12 be convicted.

    13 Having regard to the fact that the

    14 international armed conflict requirement is only an

    15 issue for States exercising extra-territorial

    16 jurisdiction and in no way impedes the jurisdiction of

    17 an international tribunal and having regard to the fact

    18 that Article 2 of the Statute of the Tribunal makes no

    19 reference to "international armed conflict," then it is

    20 my submission that proving the existence of an

    21 international armed conflict cannot be an essential

    22 ingredient of the charge. Whether or not it becomes an

    23 essential prerequisite for a State court exercising

    24 jurisdiction is fortunately not a matter that we have

    25 to be concerned with in this jurisdiction.

  46. 1 Accordingly, because proof of the existence

    2 of an international armed conflict is not, in our

    3 submission, an essential element of the offence that

    4 has to be proved by the Prosecution beyond a reasonable

    5 doubt, a failure to so prove would not entitle the

    6 accused to an acquittal.

    7 The existence of an international armed

    8 conflict goes to the background legal question of

    9 jurisdiction. The facts that the Tribunal must

    10 consider in order to reach this determination do not

    11 have to reach the level where the matter is decided

    12 according to the criminal standard. The Tribunal can

    13 take into account a number of facts, not necessarily

    14 only those introduced by the Prosecution. It is

    15 permissible for the Judges of the Trial Chamber to draw

    16 upon their general knowledge and general life

    17 experiences. This is why, in my submission, the

    18 Appeals Chamber in Tadic is very careful in its

    19 selection of words on this point. The Appeals Chamber

    20 does not say "elements of the offence" when they are

    21 speaking of international armed conflict, they say, at

    22 paragraph 84, page 48:

    23 " ... Article 2 of the Statute only applies

    24 to offences committed within the context of an

    25 international armed conflict."

  47. 1 And the emphasis, if Your Honours please,

    2 that I place is on the word "context."

    3 Thus, when looking at this particular

    4 conflict, what evidence is sufficient for you to

    5 resolve whether or not the conflict was international

    6 as a background jurisdictional question? The answer to

    7 the question is straightforward. The conflict becomes

    8 international in character if any difference arising

    9 between two States and leading to the intervention of

    10 members of the armed forces of that State is an

    11 international armed conflict, and it makes no

    12 difference how long the conflict lasts or how much

    13 slaughter takes place. They do not have to have a

    14 controlling influence or that they were present right

    15 across the territory of the particular State.

    16 Once this is established, in my submission,

    17 on the balance of probabilities, Article 2 of the

    18 Statute applies. You can then turn to the elements of

    19 the offence in order for you to determine whether it

    20 has been established beyond a reasonable doubt that the

    21 accused intended to subject the Bosnian Muslim

    22 detainees to inhumane treatment or to wilfully cause

    23 great suffering or serious injury to body or health

    24 under either Article 7(1) or 7(3).

    25 Your Honours, in this case, there is an

  48. 1 abundance of evidence showing that the Republic of

    2 Croatia had military forces in Bosnia. They came in

    3 1992 and they stayed on beyond 1993. There is no

    4 question that the military forces of Croatia were

    5 linked to the HVO which was the organisation of the

    6 Bosnian Croats. There is no question that the HVO was

    7 in conflict with the army of Bosnia-Herzegovina in

    8 1993.

    9 This is as far as you need to go in order to

    10 decide the background jurisdictional fact with respect

    11 to the grave breach provisions. Of course, you have

    12 before you a great deal more evidence than that, but

    13 this is all you need.

    14 Certainly you have a vastly greater amount of

    15 evidence before you than did the Appeals Chamber in the

    16 Tadic jurisdictional appeal when they, in fact, decided

    17 that the conflict in the former Yugoslavia had been

    18 rendered international by the involvement of the

    19 Croatian army in Bosnia-Herzegovina. This is at page

    20 39, paragraph 72. Likewise, you have considerably more

    21 evidence before you than did the Trial Chamber in the

    22 Rajic Rule 61 hearing when the Trial Chamber said that

    23 the evidence was sufficient to convert a domestic

    24 conflict into an international one (paragraph 13, page

    25 9).

  49. 1 The same question was decided by the Celebici

    2 Trial Chamber when it said that there was an

    3 international armed conflict in Bosnia-Herzegovina from

    4 the date of its recognition of independence on the 6th

    5 of April, 1992, until the signing of the Dayton peace

    6 agreement in November of 1994 (sic).

    7 Accordingly, when Your Honours come to

    8 consider this question, it will have been considered

    9 and decided at least four times. Of course, there is

    10 nothing different this time, and in view of the fact

    11 that on the previous four occasions it was decided that

    12 there did exist an international armed conflict, there

    13 is no reason why Your Honours need depart from this

    14 consistently held view.

    15 If Your Honours follow the line of reasoning

    16 in the other cases and having regard to what I have

    17 said above, I do not think that you will have much

    18 difficulty in concluding that an international armed

    19 conflict did exist in the territory of

    20 Bosnia-Herzegovina at the relevant time.

    21 Your Honours could, however, go further by

    22 applying the same reasoning that I have advanced above,

    23 about this being an issue for State courts and it not

    24 being expressly mentioned in Article 2 of the Statute

    25 of the Tribunal, and decide that Article 2 of the

  50. 1 Statute of the Tribunal applies equally to internal and

    2 international armed conflicts.

    3 In the Celebici judgement, the Trial Chamber

    4 considered the possibility of expressing themselves on

    5 this issue but ultimately declined to do so at page 88,

    6 paragraph 235, of their judgement, when they say:

    7 "Having reached this conclusion, the Trial

    8 Chamber makes no finding on the question of whether

    9 Article 2 of the Statute can only be applied in a

    10 situation of an international armed conflict or whether

    11 this provision is also applicable to internal armed

    12 conflicts."

    13 I think, Your Honours -- I've been

    14 corrected. The Dayton Accords were signed in 1995. If

    15 I said 1994, I was wrong in that.

    16 Turning, Your Honours, to the issue of

    17 command responsibility.

    18 Again, in the Celebici judgement, the Trial

    19 Chamber stated, paragraph 346, page 128, that the

    20 elements that have to be satisfied in order to

    21 establish Article 7(3) responsibility were:

    22 (i) The existence of a superior-subordinate

    23 relationship;

    24 (ii) that the superior knew or had reason to

    25 know that the criminal act was about to be or had been

  51. 1 committed; and

    2 (iii) the superior failed to take the

    3 necessary and reasonable measures to prevent the

    4 criminal act or to punish the perpetrators thereof.

    5 In Celebici, they went on to observe the

    6 situation in the former Yugoslavia, where formal

    7 structures had broken down, improvised control and

    8 command structures took their place. These improvised

    9 structures were often ambiguous and ill-defined, but

    10 this factor alone did not preclude the application of

    11 the doctrine of superior responsibility under Article

    12 7(3). Provided it could be established that persons

    13 were effectively in control of these improvised

    14 structures with the power to prevent and punish the

    15 crimes of persons who are, in fact, under their

    16 control, may be held responsible for their failure to

    17 do so.

    18 Accordingly, individuals, whether in civilian

    19 or military structures, can incur criminal liability

    20 under the doctrine of superior responsibility on the

    21 basis of their de facto as well as their de jure

    22 positions as superiors. The mere absence of formal

    23 legal authority to control the actions of subordinates

    24 will not preclude criminal responsibility.

    25 Thus, it is apparent that there is no express

  52. 1 limitation restricting the scope of superior

    2 responsibility to military commanders or situations

    3 arising under military command. In contrast, the use

    4 of the term "superior" in Article 7(3), juxtaposition

    5 to the affirmation of individual criminal

    6 responsibility of "Heads of State" or responsible

    7 government in Article 7(2), clearly indicates that this

    8 applicability extends beyond the responsibility of

    9 military commanders to also encompass political leaders

    10 and other civilian superiors in positions of authority.

    11 In the case of the United States versus

    12 Oswald Pohl, reported at Volume V, T.W.C. 958, the

    13 finding of guilt against the accused, who was an

    14 officer of the Waffen SS and a business manager of a

    15 large establishment of industries employing

    16 concentration camp labour, is best read as predicated

    17 upon his possession of de facto powers of control.

    18 Charged with his responsibility for the

    19 conditions to which labourers were exposed, he based

    20 his defence in part on the contention that any

    21 mistreatment of prisoners was caused by the

    22 concentration camp guards over whom he had no control.

    23 This was rejected by the Nuremberg Tribunal when it

    24 found that he was an integral part of the whole

    25 concentration camp process. If excesses occurred in

  53. 1 industries under his control, he not only knew about it

    2 but he could do something. Accordingly, powers of

    3 influence, not amounting to formal powers of command,

    4 is sufficient basis for the imposition of command

    5 responsibility.

    6 Cases imposing criminal responsibility for

    7 failure to act on civilian positions of authority also

    8 indicate that such persons may be liable for crimes

    9 committed by persons over whom their formal authority

    10 under national law is limited or nonexistent.

    11 Whatever the Defence might say about the

    12 de jure authority of Mr. Aleksovski, we have evidence

    13 that "shift commanders could not make instructions on

    14 their own. They had to receive instructions from the

    15 warden"; transcript page 3.034. We also have an

    16 abundance of Mr. Aleksovski giving orders to guards.

    17 He even gave orders to the guards to beat prisoners;

    18 transcript page 1.389.

    19 It is nonsense, in my submission, to suggest

    20 that he did not have control over the guards of the

    21 camp. He was the warden, he had the responsibility to

    22 run the place, and the only way that he could have done

    23 this was by his control over the camp personnel,

    24 including the guards.

    25 If a person is a superior and has authority

  54. 1 to influence an event, he cannot plead lack of formal

    2 or de jure authority as a defence when he failed to

    3 take this action. Thus, if the superior is superior in

    4 his position to those who perpetrate the acts, if he

    5 has the requisite knowledge of the occurrence of those

    6 events and fails to do what was within his powers to

    7 either prevent further crimes or punish the

    8 perpetrators thereof, then in those circumstances he is

    9 guilty under the principle of command responsibility.

    10 It is of no avail for him to say, "Well, I

    11 was the warden of the prison --"

    12 JUDGE RODRIGUES: Excuse me, Mr. Niemann, for

    13 interrupting you, but I note that the French

    14 translation has a lag of at least twenty lines, and if

    15 one compares what I see in the transcript and what I

    16 hear in my headphones, there is a delay on the part of

    17 the French interpreters of some twenty lines.

    18 Perhaps you need a little rest? I don't

    19 know. Or, perhaps, could you slow down a little,

    20 please? That is why I made signs a moment ago, "If you

    21 could slow down?"

    22 MR. NIEMANN: Yes, Your Honour. It's just

    23 that I'm being very mindful of the ...

    24 JUDGE RODRIGUES: I don't know, but I think

    25 we should wait a little for the French interpreters to

  55. 1 catch up the delay or to have a simultaneous

    2 interpretation. Is it all right with you? Could you

    3 stop for a moment, Mr. Niemann? Then the French

    4 translation will catch up with the English text, and

    5 then we can resume work.

    6 (French translation continues)

    7 JUDGE RODRIGUES: Yes, the French booth has

    8 caught up with the English booth, so we can continue

    9 now, but we must know that the French booth is going a

    10 little more slowly. What about the English booth or,

    11 rather, the B/C/S booth?

    12 THE INTERPRETER: We would ask counsel to

    13 slow down, please, for the benefit of all the booths.

    14 JUDGE RODRIGUES: I apologise for this

    15 technical problem. I have no doubt about the

    16 competence of the interpreters. I want to make that

    17 quite clear.

    18 So you may continue, Mr. Niemann, please.

    19 MR. NIEMANN: If Your Honours please, it is

    20 of no avail for the accused to say, "Well, I was the

    21 warden of the prison. I knew that the detainees were

    22 being mistreated contrary to the provisions of the

    23 Geneva Conventions, but those guards were not under my

    24 command because I was attached to the Justice

    25 Department and the guards were attached to the Defence

  56. 1 Department." The fact is that he could act if he

    2 wanted to. For example, when the two Muslim detainees

    3 Ermin Elezovic and Jasmin Sehovic were taken out for

    4 trench-digging, mistreated and ultimately murdered, he

    5 did not claim lack of authority; he took appropriate

    6 action by initiating a formal investigation,

    7 demonstrating that he was far from powerless.

    8 The Defence would have you believe that

    9 unless you had complete de jure authority over the

    10 destiny of his subordinates, then Article 7(3) of the

    11 Statute has no application. This is simply not true.

    12 Nor is it true to say that Article 7(3) only applies to

    13 situations where he can take direct punitive action.

    14 There are a great many things he could have done. He

    15 could have gave the guards an order not to beat the

    16 detainees rather than doing the opposite and ordering

    17 them to beat the prisoners. He could have avoided

    18 giving the guards a bad example when he himself joined

    19 in when prisoners were beaten. He could have reported

    20 the guards for beating the prisoners. He could have

    21 told the ECMM Monitors what was happening. He could

    22 have told the International Committee of the Red Cross

    23 about the plight of the Muslim detainees instead of

    24 lying to them, when they asked who was in the locked

    25 cell, and he covered up by saying that the cell

  57. 1 contained stored food when, in fact, it contained a

    2 prisoner who had been badly beaten; transcript page

    3 1.472. He could have told the medical staff at the

    4 Busovaca medical centre who, it appears, on some

    5 occasions tried to help some of the prisoners by

    6 prescribing home treatment. He could have walked

    7 away. He had so many opportunities at his disposal,

    8 yet he did nothing.

    9 Why might that be? In our submission, it is

    10 clear. He was a full-fledged supporter of the Bosnian

    11 Croatian national cause. He had signed on to a project

    12 to ethnically cleanse the Lasva Valley, and he was

    13 performing his part of the project.

    14 Aleksovski had direct knowledge of what was

    15 going on. He was there present when Muslim detainees

    16 were taken trench digging. He was there when they were

    17 so exhausted from trench digging they collapsed from

    18 exhaustion. He was there when they were taken as human

    19 shields. He was there when they were beaten. He was

    20 there when they were so badly beaten that they needed

    21 medical attention. He was there when they had to sleep

    22 on wooden pallets. He was there when they were

    23 overcrowded into the cells. He was there when it was

    24 cold and they did not have sufficient blankets to keep

    25 them warm. He was there when they were ill and did not

  58. 1 receive adequate medical attention.

    2 He had direct knowledge of all of these

    3 matters. We are not here trying to argue constructive

    4 knowledge. We don't have to. We have ample evidence

    5 of his direct knowledge and his personal involvement.

    6 In the Celebici judgement, the Trial Chamber

    7 said that there had to be some specific information

    8 available to a superior which would provide notice of

    9 offences committed by his subordinates. In that case,

    10 the Trial Chamber noted, however, that the information

    11 need not be sufficient to compel the conclusion of the

    12 existence of the crimes but sufficient to put him on

    13 enquiry of the possible existence of the crimes having

    14 been committed. All there needs to exist is

    15 information of a sufficiently widespread and notorious

    16 nature which, as the section says, "should have enabled

    17 him to conclude," but these formulations only have

    18 application in those cases where there is no direct

    19 knowledge of his presence when the crime was actually

    20 being committed.

    21 On the evidence of this case, there can be no

    22 issue that Aleksovski was the warden or commander of

    23 the camp. He clearly admits this himself, but

    24 irrespective of what he might say, the evidence of his

    25 position of authority is overwhelming.

  59. 1 As was noted in the Celebici judgement at

    2 paragraph 750, the Trial Chamber states:

    3 "It seems inescapable from the testimony of

    4 all the detainees that they acknowledged Mucic as the

    5 prison camp commander. The detainees came to this

    6 conclusion because Delic called him commander or

    7 because Mucic himself introduced himself as commander

    8 or because his behaviour towards the guards was that of

    9 commander. Concisely stated, everything about Mucic

    10 contained the indicia and hallmark of a de facto

    11 exercise of authority. Even in the absence of explicit

    12 de jure authority, a superior's exercise of de facto

    13 control may subject him to criminal liability for the

    14 acts of his subordinates. Where the position of Mucic

    15 manifests all the powers and functions of a formal

    16 appointment, it is idle to contend otherwise."

    17 In paragraph 261, they say that the precise

    18 scope of the superior's duties are irrelevant to the

    19 issue. There was evidence of his presence in the camp

    20 and the exercise of his de facto authority over prison

    21 camp personnel.

    22 In this case, it would be hard to find a more

    23 convincing case of superior responsibility than that of

    24 Mr. Aleksovski. On the evidence that you have heard in

    25 this case, it is, in our submission, frankly,

  60. 1 incontestable.

    2 Turning to another matter, Your Honours,

    3 relating to lesser included charges. The issue of

    4 whether the Tribunal has authority to find an accused

    5 person not guilty of a serious charge as specified in

    6 the indictment but, on the evidence, guilty of a less

    7 serious charge not specified in the indictment is not

    8 without controversy. The Tadic Trial Chamber decided

    9 that it did not have the authority to find the accused

    10 person guilty of a less serious charge in those

    11 circumstances where the accused had been acquitted of a

    12 far more serious charge. In the Celebici case, the

    13 Trial Chamber took the opposite view.

    14 In paragraph 866, they say that, when dealing

    15 with the charges in that case:

    16 "Nonetheless, it is clear that Delic and

    17 Landzo were, at the very least, the perpetrators of

    18 heinous acts which caused great physical suffering to

    19 the victim."

    20 They then say: "It is a principle of law

    21 that a grave offence includes a lesser offence of the

    22 same nature. Accordingly, the Trial Chamber finds

    23 Delic and Landzo not guilty of the charges of wilful

    24 killing and murder but finds them guilty of wilfully

    25 causing great suffering or serious injury to body and

  61. 1 health, a grave breach of the Geneva Conventions."

    2 Having regard to the fact that the

    3 International Criminal Tribunal is not restricted to

    4 any one system of law, it would be entirely

    5 appropriate, in my submission, for the Trial Chamber to

    6 follow and expand upon the course set by the Trial

    7 Chamber in the Celebici case and introduce this

    8 principle of lesser included offences in relation to

    9 these matters.

    10 Turning now, Your Honours, to briefly touch

    11 upon matters raised in the Defence submission that you

    12 have before you, their written submission, in paragraph

    13 2.1, the Defence assert that the Prosecutor has not

    14 proved a state of international armed conflict or

    15 partial occupation in the territory of Busovaca

    16 municipality in the period from January till the end of

    17 May 1993. They are quite right. We have not been that

    18 specific. The reason for this is because, in our

    19 submission, we do not, as a matter of law, have to

    20 prove this for the grave breach provisions of the

    21 Geneva Conventions to apply. It has not been stated in

    22 the indictment that we would prove this nor that we

    23 ever asserted that we would prove this. The Prosecutor

    24 did however, in paragraph 22.1 of the indictment,

    25 allege that a state of international armed conflict did

  62. 1 exist in the Republic of Bosnia-Herzegovina at the

    2 relevant times, and we have certainly proved this.

    3 With respect to, as I have said, the

    4 parameters of the conflict, we are not here examining

    5 the Busovaca/Vitez municipality and the particular

    6 forces involved in the conflict in that area to

    7 determine whether the conflict was international or

    8 internal. Rather, the question is, was the conflict in

    9 Bosnia-Herzegovina international?

    10 There are other matters that the Defence

    11 consider we have not proved referred to in part 2 of

    12 the Defence submissions, but either as a matter of law,

    13 there is no obligation to prove such matters, or

    14 alternatively, the matters have been more amply proved

    15 in accordance with the obligations imposed upon the

    16 Prosecutor. For the purpose of my submission, it's not

    17 necessary for me to dwell on these matters, as they are

    18 primarily factual and will be discussed in greater

    19 detail by my colleague, Mr. Meddegoda.

    20 The Defence, in their submission, pages 14

    21 and 15, agree with the Prosecution that the accused

    22 started to work as a warden of the Kaonik detention

    23 camp in January 1993 and exercised control over the

    24 camp, but they argue that because we did not prove that

    25 he was a member of the HVO, that he had no rank or that

  63. 1 he was a military commander, that because of this,

    2 somehow this is fatal to our case. The Prosecution

    3 never alleged that he had a military rank or that he

    4 was a military commander. This was not alleged in the

    5 indictment. It was not alleged in the indictment

    6 because it does not, as a matter of law, have to be

    7 proved as a legal requirement by the Prosecution.

    8 Again, in the Celebici judgement, page 261,

    9 the Trial Chamber refer to the Defence argument in that

    10 case that the commander of Celebici, Mucic, had no

    11 formal command like the position here; therefore, Mucic

    12 could not be held responsible. They refer to the

    13 Defence concession that Mucic did what he could within

    14 the limit of his authority.

    15 The Trial Chamber, nevertheless, concluded

    16 that he was in a position to help detainees, and they

    17 say:

    18 "There is no suggestion ... that superior

    19 authority can only be vested formally in written

    20 form ... individuals in positions of authority, whether

    21 civilian or military structures, may incur criminal

    22 responsibility on the basis of their de facto as well

    23 as de jure position as superiors. The mere absence of

    24 formal legal authority to control the actions of

    25 subordinates should therefore not be deemed to defeat

  64. 1 the imposition of criminal responsibility."

    2 On page 17 of the Defence submissions, it is

    3 argued --

    4 I have to go even slower, Your Honours.

    5 It is argued that the Prosecution failed to

    6 prove that the accused had knowledge of the commission

    7 of offences contrary to the Geneva Conventions or that

    8 persons were about to commit such crimes. This is, in

    9 our submission, an extraordinary submission considering

    10 the evidence. Aleksovski himself admitted that

    11 offences contrary to the Geneva Conventions were being

    12 committed. He was present when such offences were

    13 committed. He would have to have been in a coma not to

    14 know what was going on in the Kaonik camp during the

    15 relevant period.

    16 The Defence go on, at the bottom of page 17,

    17 to make an entirely unsubstantiated comment that:

    18 "... Analysing the witnesses' testimonies of

    19 the disputable facts, the unquestionable impression is

    20 that the witnesses have been instructed and manipulated

    21 by the secret police AID controlled by the Bosnian

    22 Muslims which is indicated by the fact that their

    23 depositions were taken in the premises of the police in

    24 a pre-trial proceeding."

    25 JUDGE RODRIGUES: Mr. Niemann, could you

  65. 1 please slow down a little bit -- that is why I'm

    2 interrupting you -- because we can give you some extra

    3 time if necessary at the end as a present.

    4 MR. NIEMANN: Thank you. I'm more concerned

    5 about my colleague, Mr. Meddegoda, cutting into his

    6 time, Your Honours, but I will certainly slow down.

    7 I was just referring to the fact that the

    8 Defence, in their submissions, had said that the

    9 impression was that the witnesses had been manipulated

    10 by the secret police. They base this on the fact of

    11 where the pre-trial statements were taken. Well, Your

    12 Honours, the pre-trial statements were taken by

    13 professional investigators of the Office of the

    14 Prosecutor. The witnesses were, in no way,

    15 manipulated. There is absolutely no evidence of this.

    16 In our submission, this is a cowardly

    17 allegation, having regard to the fact that the

    18 witnesses were never cross-examined on this matter.

    19 They came to The Hague, exposed themselves for

    20 cross-examination, but the Defence did not confront

    21 them with this unfounded allegation. They waited until

    22 the witnesses returned, and behind their backs, they

    23 make these comments.

    24 On page 18 of the Defence submission, the

    25 Defence complain that we have not produced any medical

  66. 1 evidence of death. In our submission, there is one

    2 very good reason for this, and that is because

    3 Mr. Aleksovski has not been charged with killing

    4 anyone. With respect to the evidence of serious injury

    5 to body or health, again there has been extensive

    6 evidence of this, but there's no requirement at all of

    7 this having to be supported by medical testimony when

    8 one has direct eyewitness testimony.

    9 Both in Tadic and Celebici, the Trial

    10 Chambers have held that corroboration of evidence is

    11 not a customary rule of international law and, as such,

    12 should not ordinarily be required by the International

    13 Tribunal. That is paragraph 594 of Celebici and 539 of

    14 Tadic.

    15 Accordingly, the eyewitness testimony is

    16 sufficient on its own to establish such matters, and

    17 medical or expert testimony of such matters is not

    18 required.

    19 Interestingly enough, the Defence do not

    20 dispute the fact that the police from the HVO were

    21 taking Muslim prisoners from the Kaonik prison camp to

    22 the front line to dig trenches. As I mentioned before,

    23 they go on to say that they consider it established

    24 that Jasmin Sehovic and Nermin Elezovic were killed (7

    25 February 1993) when they were forcibly taken to Kula to

  67. 1 dig trenches for the HVO.

    2 All they can say with regard to this is that

    3 the accused, the military police, and the competent

    4 court took appropriate action. The accused had

    5 knowledge, he had the capacity to take action if he so

    6 desired, and he knew just how dangerous it was for

    7 Muslims to be taken from the prison and made to dig

    8 these trenches. This, in our submission, is a very

    9 clear and further admission of guilt on the part of the

    10 accused.

    11 When dealing with the classifications of the

    12 conflict as "international" and the status of

    13 "protected persons" in the "Legal Aspects and

    14 Categories" part 4 of the Defence submission, the

    15 Defence rely almost exclusively on the Tadic judgement,

    16 which, as Your Honours know, was not followed in the

    17 Celebici decision. Interestingly enough though, on

    18 page 41 of the Defence submission, they do concede that

    19 the Defence has no doubt that the alleged victims

    20 covered by the indictment are civilians.

    21 Just for a moment, I might turn to the

    22 indictment itself. From a reading of the Defence

    23 submission, one gains the impression that the Defence

    24 are under the misapprehension that the Prosecutor has

    25 set out to prove all allegations in the indictment

  68. 1 which are directed to persons who were originally

    2 co-accused with Mr. Aleksovski.

    3 Of course, this indictment is a multi-accused

    4 indictment, and the accused has been severed from the

    5 indictment and a separate trial has been held. A good

    6 many of the allegations in the indictment apply

    7 exclusively to the other accused and have no

    8 application to the accused Mr. Aleksovski. However,

    9 there are some paragraphs that do apply.

    10 For example, paragraph 1: In our submission,

    11 the Prosecution has proved the allegation concerning

    12 the conflict as particularised in this paragraph. Some

    13 of the allegations in the paragraph are more

    14 particulars and do not need to be proved beyond a

    15 reasonable doubt but nonetheless have been proved.

    16 Paragraph 7: Particulars as to the accused

    17 have been proved to the level of the required

    18 standard.

    19 Paragraph 20: The Prosecution has proved

    20 beyond a reasonable doubt that the accused was the

    21 commander of Kaonik at the relevant time; he was in a

    22 superior position to others in the camp; he exercised

    23 the role of commander by meeting with officials of the

    24 International Community. The Prosecution has also

    25 proved to the required standard that he had an

  69. 1 understanding of the Geneva Conventions.

    2 Paragraph 21 --

    3 JUDGE RODRIGUES: Mr. Niemann, I apologise,

    4 but we have to wait a little longer for the French

    5 interpretation which is lagging behind considerably.

    6 Therefore, French booth, will you continue up

    7 to the point where Mr. Niemann stopped?

    8 Mr. Niemann, you may continue now, and try to

    9 go a little more slowly to avoid the same situation

    10 from recurring. I apologise, Mr. Niemann.

    11 MR. NIEMANN: Yes, Your Honour.

    12 Paragraph 21: The Prosecution has proved

    13 that Aleksovski exercised control over the Kaonik

    14 prison.

    15 Paragraph 22.1: The Prosecution has proved

    16 to the requisite level that an international armed

    17 conflict and partial occupation existed in

    18 Bosnia-Herzegovina at the relevant time.

    19 Paragraph 22.2: That the alleged grave

    20 breaches occurred during an international armed

    21 conflict has been proved beyond the required level, in

    22 our submission.

    23 Paragraph 22.3: The Prosecution has proved

    24 that the crimes charged as crimes against humanity took

    25 place as part of a widespread and systematic attack.

  70. 1 Paragraph 22.4: That the victims were

    2 protected persons under the Geneva Convention has also

    3 been proved.

    4 Paragraph 22.5: That the accused is bound by

    5 those conventions.

    6 Paragraph 31: It has been established that,

    7 at the relevant times, the accused Aleksovski accepted

    8 and detained hundreds of Bosnian Muslim civilians from

    9 the HVO and their agents. The civilians, for the most

    10 part, came from the municipalities of Vitez and

    11 Busovaca. That many of the detainees were subjected to

    12 inhumane treatment, which included interrogation,

    13 physical and psychological harm, forced labour,

    14 including trench digging, and use as human shields, and

    15 that some of the detainees were murdered or otherwise

    16 killed.

    17 Paragraph 37: That the accused was

    18 responsible under Article 7(1) and (3) of the Statute

    19 of the Tribunal for: Inhumane treatment, contrary to

    20 Article 2(b) of the Statute; wilfully causing great

    21 suffering or serious injury to body or health, contrary

    22 to Article 2(c); and outrages upon personal dignity,

    23 contrary to Article 3 of the Statute.

    24 All these matters have been proved to the

    25 requisite level of proof such that, in our submission,

  71. 1 the accused is guilty as charged.

    2 Turning to the question of sentencing, if

    3 Your Honours please. Again, looking at the decision in

    4 Celebici, in paragraphs 1237 to 1248 of their judgement,

    5 the Trial Chamber provides an interesting discussion of

    6 its sentencing criteria with respect to Mucic, who was

    7 the commander of the Celebici prison camp and most

    8 analogous to Mr. Aleksovski. Unlike the situation with

    9 Mr. Aleksovski, the Chamber acknowledges that there was

    10 no credible evidence at trial that Mucic actually

    11 participated in acts of violence against prisoners and

    12 that he may have occasionally prevented such acts of

    13 violence. But the Celebici Trial Chamber does not use

    14 this distinction to reduce Mucic's culpability per se.

    15 On the contrary, in paragraphs 1242 and 1243

    16 of the judgement, they observe that:

    17 "... conditions of detention in the Celebici

    18 prison camp were harsh and indeed inhumane ... No one

    19 appeared to care whether the detainees survived. These

    20 were the conditions perpetrated by Mucic, who was the

    21 commander of the Celebici prison camp after its

    22 creation ... Mr. Mucic was responsible for the

    23 conditions in the prison camp and the unlawful

    24 confinement of the civilians there detained. He made

    25 no effort to prevent or punish those who mistreated the

  72. 1 prisoners or even to investigate specific incidents of

    2 mistreatment including the death of detainees ..."

    3 Thus, for the purposes of liability under

    4 Article 7(3), Mucic's individual criminal

    5 responsibility was unrelated to whether he directly

    6 participated in acts of violence against prisoners or

    7 not. This is consistent with the International

    8 Committee of the Red Cross commentaries that describe

    9 how superiors are often in unique positions to reduce

    10 suffering during wartime. In paragraph 1248 of the

    11 Celebici judgement, they observed:

    12 "On the whole, the Trial Chamber has taken

    13 into consideration the conduct of the accused within

    14 the situation when he was in possession of considerable

    15 authority and was exercising the power of life and

    16 death over the detainees in the prison camp.

    17 "The Trial Chamber has taken into account the

    18 fact that the accused has not been named by any of the

    19 witnesses as an active participant in any of the

    20 murders or tortures for which he was charged with

    21 responsibility as a superior ... The scenario thus

    22 described would suggest the recognition of individual

    23 failing as an aspect of human frailty, rather than one

    24 of individual malice. The criminal liability of

    25 Mr. Mucic has arisen entirely from his failure to

  73. 1 exercise his superior authority for the beneficial

    2 purpose of the detainees in the Celebici prison camp."

    3 Mr. Aleksovski, on the other hand, directly

    4 participated when beatings were occurring and when

    5 interrogations of prisoners took place. He sent

    6 prisoners out to the front lines to dig trenches on a

    7 daily basis, hid abused prisoners from the

    8 International Committee of the Red Cross delegations,

    9 and promised one of the guards that Hamdo Dautovic

    10 would not leave Kaonik alive.

    11 Applying the logic of the Celebici judgement,

    12 the repeated malice exhibited by Mr. Aleksovski serves

    13 as an aggravating factor that should increase his

    14 sentence, even for acts of violence committed by

    15 subordinates in which he had no direct participation at

    16 all.

    17 Aleksovski had the capacity to prevent harm

    18 to the prisoners but even more fundamental was his duty

    19 to prevent. The accused accepted a mandate from the

    20 HVO government and army to run a prison. He enjoyed

    21 broad authority over the institution, the prison

    22 guards, and the lives of the prisoners. The accused

    23 has a university education, and from his prior

    24 professional experience, the accused was fully aware of

    25 the proper standards for running a prison. He made no

  74. 1 serious effort to fulfil his duty and alleviate the

    2 suffering and deplorable conditions of the prisoners,

    3 although given his dominance over the prison structure

    4 and the guards, it would have been relatively easy for

    5 him to have done so.

    6 Abrogation of the accused's Article 7(3)

    7 responsibility as a superior is, in our submission,

    8 more culpable than the commission of the specific

    9 crimes themselves. That is because, by codifying this

    10 theory of superior responsibility in the Additional

    11 Protocols to the 1949 Geneva Conventions, the

    12 international community established that a superior's

    13 fulfilment of this duty was essential to reduce the

    14 suffering of war. The culpability of a person who

    15 commits a specific offence loses significance, in our

    16 submission, in comparison with an accused who controls

    17 an entire organisation.

    18 Pursuant to Rule 101(B)(ii), the Prosecution

    19 asserts that there are no mitigating circumstances or

    20 instances of substantial cooperation with the

    21 Prosecutor which would earn him any reduction in the

    22 sentence that would otherwise be imposed. Having

    23 regard to the degree of his direct participation in the

    24 commission of these crimes and hence his state of mind,

    25 in our submission, his offending was very serious.

  75. 1 It has been the practice of the Prosecutor to

    2 express her views on what she considers the appropriate

    3 sentence should be upon the conviction of the accused.

    4 I am accordingly instructed to advise the Chamber that

    5 the Prosecutor considers that having regard to all the

    6 circumstances of this case, the appropriate sentence,

    7 in her view, in the case of Mr. Aleksovski, is that he

    8 should serve a sentence of not less than 10 years'

    9 imprisonment.

    10 If Your Honours please, those are my

    11 submissions.

    12 I now turn to my colleague, Mr. Meddegoda,

    13 who will address you on matters of fact, if Your

    14 Honours please.

    15 JUDGE RODRIGUES: Thank you, Mr. Niemann. I

    16 think that we all are familiar with the capacity of

    17 analysis and synthesis by Mr. Meddegoda, and therefore,

    18 we are going to give him a 20-minute break for us and

    19 before he begins.

    20 Therefore, a 20-minute break.

    21 --- Recess taken at 4.40 p.m.

    22 --- On resuming at 5.04 p.m.

    23 (The accused entered court)

    24 JUDGE RODRIGUES: Perhaps a small explanation

    25 is required in connection with the delay in the

  76. 1 interpretation. Perhaps -- the interpreters need to

    2 have the official text of the Celebici judgement to be

    3 able to interpret; they need to have an official text.

    4 But I think we have overcome that. We have already

    5 referred to Mr. Meddegoda's capacity of synthesis, but

    6 the present is for the Prosecution as a whole, not only

    7 for Mr. Niemann.

    8 I want to tell you that we have slightly

    9 reorganised the framework of our proceedings so that

    10 the Chamber is going to have the morning and the

    11 afternoon because we will perhaps need some time for

    12 the rebuttal and the rejoinder.

    13 Mr. Meddegoda, we are not going to be able to

    14 tell in advance your capacity for synthesis, but we do

    15 believe in it, so please go slowly because the

    16 interpreters need to provide an official

    17 interpretation. When you quote a text, then the

    18 interpreters need to find the original version of the

    19 Celebici judgement or whatever it is you are quoting.

    20 Therefore, I think this is very important for the

    21 proceedings that we envisage sufficient time in order

    22 to be able to do things properly.

    23 Therefore, Mr. Meddegoda, take your time

    24 knowing that at 6.00, we are going to adjourn for

    25 today, but you will be able to continue tomorrow

  77. 1 knowing again that counsel for the Defence is also

    2 going to have sufficient time. Therefore, tomorrow we

    3 will resume at 9.30, and we will work until 1.00 for

    4 the morning; and in the afternoon, we are going to

    5 resume work at 2.30 and continue until 6.00 p.m., if

    6 necessary.

    7 Therefore, please go slowly, and this applies

    8 to both the Prosecution and the Defence.

    9 It is up to you now, Mr. Meddegoda. We are

    10 going to listen to you with interest.

    11 MR. MEDDEGODA: Your Honours, I will fully

    12 comply with Your Honours' directive, and if Your

    13 Honours please, for my part, I will deal with the

    14 factual issues, examining the evidence that has been

    15 led before this Trial Chamber.

    16 In the course of its case, the Prosecution

    17 called 37 witnesses to testify before this Court. It

    18 is my submission that the evidence led before this

    19 Court establishes beyond reasonable doubt that the

    20 accused Zlatko Aleksovski is guilty of the charges

    21 alleged against him in the indictment.

    22 Your Honours, I now propose to examine the

    23 evidence in order to demonstrate that the Prosecution

    24 has established the case against the accused beyond

    25 reasonable doubt.

  78. 1 Vahid Hajdarevic, a Bosnian Muslim resident

    2 of Busovaca, testified that he had been mobilised into

    3 the Territorial Defence in April of 1992 and had been

    4 deployed on the front line in June 1992 and then in

    5 September and again in December of that year in order

    6 to "defend the integrity of Bosnia-Herzegovina,

    7 whereas," if I may quote, "the HVO members at that time

    8 were always within certain armed forces ... focused

    9 more on obstructing the work of the government in

    10 Busovaca and were trying to place the town in a

    11 blockade."

    12 Thus, from about October of that year, there

    13 were various incidents of "mistreatment and harassment,

    14 disarming of members of the Territorial Defence, and

    15 even plundering and looting of some resources. For

    16 instance," the witness said, "I know that some vehicles

    17 from us that were going to Slovenia were confiscated by

    18 the HVO, so all kinds of looting and plunder occurred.

    19 Even before that, there were some minor incidents"

    20 which were resolved by negotiation. "But as from

    21 October, as far as I can recall ... the political

    22 leadership of the HDZ and, of course, with the armed

    23 units of the HVO ... took over a number of institutions

    24 in the municipality."

    25 Recalling the incidents of harassment and

  79. 1 mistreatment, it was his testimony that "Muslim

    2 intellectuals were taken into custody by the HVO for

    3 some sort of interrogation, Muslim coffee shops, shops

    4 and property were blown up ..." and on 21st January,

    5 1993, "Mirsad Delija was murdered, thus heightening the

    6 tension and causing fear among the Muslim population

    7 living in Busovaca."

    8 On 24 January, 1993, the witness and his

    9 father Sead had been arrested by the HVO at the railway

    10 station in Busovaca and taken to the bus station where

    11 they were detained together with others, including

    12 Remzija Kutic and Mirsad Dizdarevic.

    13 Late in the evening, the witness and about

    14 nine others had been transferred to Kaonik camp where

    15 they had been incarcerated in a small cell.

    16 Describing the building as a hangar, he said

    17 that the cells were located on either side of a long

    18 corridor. He had been detained in three different

    19 cells. He described the conditions within the cell as

    20 unhygienic. In order to use the toilet, he said, he

    21 "had to knock on the cell door, and if the guard who

    22 was there saw fit, he would then allow us to go to the

    23 toilet." There were no heating facilities in the cell

    24 either, nor were there proper facilities to enable the

    25 detainees to observe their religious rites and rituals.

  80. 1 He said that during the period of his

    2 detention, the accused was the camp commander, a fact

    3 he learnt having spoken to some of the guards and

    4 seeing the accused issue "certain orders to the guards,

    5 it was not difficult to conclude this," the witness

    6 said.

    7 He was one among many detainees who were

    8 taken out on labour deployment to dig trenches on the

    9 front lines of the HVO in Prosje, Podjele, and Kula.

    10 Describing the manner in which detainees would be taken

    11 out of their cells for trench-digging and other labour

    12 deployment, the witness testified that depending on the

    13 needs of the HVO, the guard would start "calling out

    14 their names from a list, and you simply had to answer

    15 and then the guard would open the door and turn you

    16 over to the person who came," who "would then take you

    17 to those places and ... you had to do whatever you were

    18 told to do." He said that he had to dig trenches for

    19 long hours, at times for even 36 hours. " ... as soon

    20 as we had been brought to that location ... soldiers

    21 systematically mistreated and beat people to find out

    22 whether they had any valuables concealed." "During the

    23 digging, we were not allowed to stand upright. We had

    24 to keep working because if you did stretch your back,

    25 then the soldier would hit you either with his rifle

  81. 1 butt or would kick you ..."

    2 Recalling the pain, humiliation, and

    3 suffering when he was beaten by an HVO soldier,

    4 resulting in two broken ribs on the right side,

    5 Mr. Hajdarevic said, "I had to kneel before him for him

    6 to ask me questions ... If he was dissatisfied with

    7 the answer, he would kick me like a football."

    8 The witness, Your Honour, also referred to

    9 the killings of Jasmin Sehovic and Nermin Elezovic in

    10 Kula and the killing of a person nicknamed "Cakara" in

    11 Prosje in the course of trench-digging.

    12 On the 24th of January, 1993, Witness A was

    13 arrested by HVO soldiers and taken to Kaonik camp where

    14 he was detained. He described the cell as a very small

    15 one with no electric lights. It had a wooden platform

    16 about half a metre in height which was the place where

    17 people had to sleep.

    18 About two or three days into his detention in

    19 Kaonik, it was the witness's testimony that the

    20 accused, introducing himself as the camp commander,

    21 said that "we would be under his jurisdiction."

    22 The witness was one amongst many who were

    23 taken to the front lines of the HVO to dig trenches and

    24 dugouts. He had been taken on four separate occasions,

    25 and on all such occasions, there had been sporadic

  82. 1 gunfire. On one occasion, he had been subjected to

    2 psychological mistreatment by HVO soldiers.

    3 He was taken again the next day to a village

    4 in the direction of Donja Rovna. The following day

    5 again it was the same routine in the area of Donja

    6 Solakovici or Milavice where the group had to dig

    7 dugouts, trenches, and so on and so on until very late,

    8 almost until midnight.

    9 The fourth occasion, Your Honours, was in the

    10 location of Kula where " ... they told us to take out

    11 everything we had in our pockets, money, jewellery from

    12 our necks, and to put everything on a pile, and ...

    13 they took some things from the pile ..."

    14 After that, the group had continued in the

    15 direction of Kula, where they kept on digging trenches

    16 until about six in the evening, after which they had

    17 been taken to an old house where they were subjected to

    18 severe mistreatment, torture, and verbal abuse.

    19 Recalling this incident, the witness said,

    20 "... One of the detainees was first taken and he was

    21 beaten outside the house. Then another was taken out.

    22 He was also beaten. We could hear him scream. Next it

    23 was my turn. I was the third one to be taken out. So

    24 they took me outside and ... another soldier hit me in

    25 the back with a blunt object and I fell down. He told

  83. 1 me to get up, and I tried to get up but I could not at

    2 that moment, so he hit me. He kicked me with his

    3 military boots again in my nose, and there was blood

    4 coming from my nose. He screamed again. He told me to

    5 get up, but I could not ... and he again kicked me in

    6 the ear, which started to bleed. He kept yelling,

    7 telling me to get up, and I couldn't manage to get up,

    8 and then he told me to get back into the house ... and

    9 as I was getting into the house, he was beating me all

    10 the time ... After that, more detainees were taken

    11 out, and that was how we were."

    12 That is how, Your Honours, he described the

    13 first round of beating, if I may call it that. It was

    14 a savage and barbaric attack on innocent victims, on

    15 innocent civilians who were detained for no reason

    16 other than being Muslims.

    17 "While I was in that group, since I was

    18 bleeding, my friends smeared themselves with my blood

    19 so as to make it look as though they had already been

    20 beaten," the witness said. "The solders then came

    21 into the house and they started beating all of us. One

    22 of them had a knife, and he was stabbing detainees with

    23 his knife. The other one was using his rifle butt to

    24 hit us with. There was one with a very thick metal

    25 chain, another one with a club. It lasted about two

  84. 1 hours. After that, things went quiet. They forced us

    2 to pray, to say the Lord's prayer, to kiss their

    3 cross ... After that, Jasmin Sehovic was taken and was

    4 beaten up again and we could hear him moan and cry, and

    5 after that, we heard some shots from an automatic rifle

    6 and it went quiet for several minutes. Then Nermin

    7 Elezovic was taken out. He had also received some

    8 stabs in the stomach. He was also beaten outside and

    9 we could hear him moan and then we could hear shots

    10 from an automatic rifle." In addition to Jasmin

    11 Sehovic and Nermin Elezovic, a young man from Rogatica

    12 had also been stabbed.

    13 Witness B, Your Honours, a Bosnian Muslim,

    14 said that on the 25th of January, 1993, he and his

    15 neighbours had surrendered to the HVO after which the

    16 soldiers had mistreated and abused them saying, "Look

    17 here. This is all a Croatian area. Only one

    18 population, only one ethnic community should be living

    19 in this area."

    20 Having been brought to the camp, they had

    21 been marched into the hangar building "with their hands

    22 behind their backs," in which, by this time, there had

    23 been about 200 to 300 Muslims already detained, which

    24 increased to about 500 the next day.

    25 He went on to describe the process of

  85. 1 registration and said that "HVO members kept bringing

    2 in more Muslims to the hangar, and there were only

    3 wooden pallets in that hangar and maybe a blanket that

    4 was supposed to be shared by two persons."

    5 "While we were in the camp, we got two

    6 pieces of bread, one plate for two prisoners. We had

    7 to eat from the same plate. It was watery beans. The

    8 food either was not salty or very salty. As for water,

    9 we would knock on the door of the cell if we were

    10 thirsty. If the guard was good, he would ask him for

    11 water. At times, the guards would say, "What do you

    12 want water for?'"

    13 Upon being questioned about the interior of

    14 the cell, the witness described in detail its location,

    15 its interior, and the facilities or the lack of them.

    16 He said that "the cell was located on the right-hand

    17 corner next to the lavatory ... on the far side of the

    18 hangar" from where he would hear "roll calls and when

    19 members of the HVO would call out the name of a Muslim

    20 ... the Muslim said which cell he was in, then you

    21 would hear beating and you would hear water being

    22 splashed across to bring him to life after the

    23 beating."

    24 Describing his personal experiences, the

    25 witness said that on one occasion he and ten other

  86. 1 Muslims were taken to Prosje to dig trenches throughout

    2 the day until about midnight.

    3 The next day, Witness B and 20 others had

    4 been taken to Kula where they dug trenches the whole

    5 day and the whole night.

    6 Upon hearing that the ICRC was visiting the

    7 camp, the group of detainees had been brought back to

    8 the camp. As soon as the members of the International

    9 Committee of the Red Cross had left, there had been

    10 another roll call and they had been taken back to Kula

    11 to continue digging trenches. Again, they had dug

    12 continuously until the next morning.

    13 The witness testified that one of the HVO

    14 members ordered him to open his mouth and cocked an

    15 automatic gun into his mouth. He said, "I somehow

    16 managed to move my head away and the gun went

    17 off around my shoulder, but none of the bullets hit

    18 me. I do not know how the rifle fell from my mouth to

    19 my shoulder and went off ..."

    20 Not only the witness, other detainees too who

    21 were engaged in trench digging had been beaten

    22 seriously, gravely beaten up. It was his evidence

    23 that, at the time he was detained there, Zlatko

    24 Aleksovski introduced himself as the warden of Kaonik

    25 camp.

  87. 1 Witness D had also been arrested by the HVO

    2 with the outbreak of hostilities in Busovaca around the

    3 25th or 26th of January, 1993. Upon arrival in Kaonik,

    4 he and the others had been detained in a cell and

    5 interrogated by Marko Krilic and a guard named Marko

    6 Petrovic.

    7 He had seen persons between the ages of 13

    8 and 14 to 65 years detained in the camp. "There was

    9 one boy ... from Prosje ... who was there with us and

    10 he was between 13 and 14 years of age."

    11 Describing the conditions in the camp, the

    12 witness said that "the food was just some simply boiled

    13 food and two people had to share one plate ... could

    14 not take a bath ... could not shave ... 20 or 25 of us

    15 used to sleep together in the cell ... Some people

    16 would lie down and some people had to sit down and

    17 sleep ..."

    18 Your Honours, this witness was one of many

    19 detainees who were taken for trench digging on numerous

    20 occasions. Together with other detainees in his group,

    21 he had to dig trenches and dugouts till late at night

    22 without food or water, close to the front lines amidst

    23 sporadic shooting, "in January, early February," in

    24 freezing conditions. "It was very cold, the earth was

    25 frozen ... we did not have warm clothes," the witness

  88. 1 said.

    2 It was in these terrible conditions that this

    3 witness and other detainees, including the 13-year-old

    4 boy, were forced to dig trenches in Milavice, Prosje,

    5 Kovacevac, and Kula, amongst other locations.

    6 If I may recount Witness F's evidence, Your

    7 Honours, he described the events in Busovaca in the

    8 latter half of January 1993 and said that "these were

    9 among the worst nights because ugly things were

    10 happening, explosions, devices were planted on almost

    11 all shops, stores held by Muslims ... There were about

    12 50 shops in the centre of town, so that on the 19th,

    13 two or three explosions destroyed two cafes, and on

    14 20th January ... in the evening, again things became

    15 nasty, and this could be felt first by the cutting of

    16 telephone lines, and we knew straightaway something was

    17 about to happen ..."

    18 Restrictive measures had also been introduced

    19 by the HVO headed by Dario Kordic, Anto Sliskovic, and

    20 others directed against the Muslims. He said:

    21 " ... not a single Muslim could move around freely ...

    22 the only people to move around were HVO policemen and

    23 HVO fighters, combatants, so they were the ones who

    24 could have done it, no one else," the witness said.

    25 Late in the evening of the 20th, the

  89. 1 witness's house had been attacked and possessions

    2 looted. Again on the 24th of January, there had been

    3 shooting, explosions, and shelling with snipers all

    4 over the town, and "people panicked, a couple were

    5 wounded, a couple were killed, and virtually the entire

    6 population was swept by panic ... the HVO soldiers were

    7 approaching from all sides ... closer and closer ... it

    8 was something quite horrifying," the witness

    9 testified.

    10 "About 3.30 on that day, 60 to 70 Muslim men

    11 had been rounded up" and brought to Kaonik. It was his

    12 evidence, Your Honours, that soldiers wearing both the

    13 HVO insignia and the HV insignia were in Busovaca

    14 during this time. He said that some "were wearing the

    15 HVO insignia and I knew them personally. There were

    16 soldiers who wore the HV insignia and Runolist

    17 Brigade. They had separate accents. They were not

    18 locals from Busovaca."

    19 Your Honours will see that this witness is

    20 very clear in his evidence that there were soldiers

    21 from the Croatian army whom he called foreigners who

    22 were not from the area, who were operating alongside

    23 the HVO soldiers during this time. In answer to

    24 specific questions, the witness reiterated that he saw

    25 soldiers wearing both the HV and the HVO insignia on 26

  90. 1 January, 1993.

    2 Upon being brought to the hangar, they had

    3 been lined up against a wall and searched, and at that

    4 moment, the accused, Mr. Aleksovski, addressing them

    5 had said: "Do not fear. You will not miss a hair from

    6 your head."

    7 The first night spent inside the hangar on

    8 the concrete floor had been horribly cold. At one

    9 point, a few soldiers came in and took out several

    10 young men.

    11 Referring to the guards in the camp, the

    12 witness said that they were all soldiers. "The guard

    13 was a soldier too. He also had insignia belonging to

    14 the HVO on him. They were wearing parts of a

    15 camouflage uniform, either the trousers or the

    16 jackets."

    17 He had experienced different things from the

    18 very moment he got there. Let us say, the witness

    19 said: "Right after dark, maybe half an hour later, I

    20 would be brought out into the hallway and I would be

    21 beaten up. This would happen every night. I was

    22 brought out mostly by one person into the hallway. He

    23 must have received some instructions. He had my

    24 description because he knew exactly who I was. So he

    25 would simply bring me out of the cell. The cell door

  91. 1 would not even close, and I would already be beaten,

    2 and I would get bloody. He kept coming back every

    3 night and beating me. Fortunately, he beat, for the

    4 most part, with his hands and he kicked me. He did not

    5 use any other instruments. He would kick and beat me

    6 with his hands ... and beat me up badly."

    7 Your Honours, the witness also described what

    8 happened to him when he and another detainee were taken

    9 to the building of the Intervention Squad at the

    10 entrance to the camp. Narrating his experience, the

    11 witness said: "The third day after I was detained in

    12 the cell, I was selected and another guy. We were

    13 taken to the building at the entrance ... for some form

    14 of informative interview, at least that is what we were

    15 told. A young soldier ... took us to the entrance of

    16 the camp. We were immediately shut up in a cell ...

    17 the other man was taken away. I was left behind

    18 sitting on a military bed.

    19 "Ten or fifteen minutes later, this young man

    20 was brought back after being beaten up. Then I was

    21 taken. I was taken upstairs and there was a room, a

    22 somewhat larger room, and in the middle of the room

    23 there was a table ... At the table, two men were

    24 sitting, two fighters, soldiers whom I knew personally

    25 very well. In fact, I was glad to see them," he said.

  92. 1 "However, I was shortly to be disappointed. They

    2 offered me cigarettes and coffee and I accepted. Then

    3 some sort of conversation started, but let me add that

    4 at this table, there were six or seven various types of

    5 sticks, wooden, rubber, steel, even police truncheons.

    6 I was on the chair at one end of the table, and after

    7 the cigarette and the coffee, the questioning started.

    8 "They asked me questions about all kinds of

    9 things, even about certain Croats who socialised with

    10 us. After each answer, the three men who were standing

    11 behind my back would hit me with whatever they could

    12 get hold of. Perhaps the easiest ... were their kicks

    13 with their boots. This lasted three and a half hours.

    14 There were some terrible moments.

    15 "At one point in time, Marelja walked in, the

    16 man who had beat me every night. He hit me with his

    17 fist in the face, so he fractured my jaw. After about

    18 three hours of this torture, one of these men pushed my

    19 head back and put a knife against my throat. I tried

    20 to push my neck against that knife. I did not care any

    21 more," the witness said.

    22 The witness also, Your Honours, described his

    23 experiences with trench digging in places of Gavrine

    24 Kuce near Putis, where he had spent the whole night

    25 digging and the next day until about noon. In the

  93. 1 course of trench digging, the witness said: "Around

    2 twelve, three of the soldiers who kept coming every

    3 five to ten minutes would hit me with their boots, with

    4 their hands ... Then around twelve, these three

    5 finally came together and they sat near me."

    6 "The three of them," he said, "were soldiers

    7 wearing HVO insignia. One of them took a piece of

    8 newspaper and he rolled it up into some kind of torch

    9 and set it aflame, and the other one came behind me and

    10 started burning off my beard, which was about two or

    11 three centimetres long at the time. After this

    12 burning, maybe an hour passed and I continued to dig.

    13 They did not give me any water. I asked for some, but

    14 it would have been better if I had not because I got

    15 more blows over my back for that.

    16 "Two of them then came back and took off my

    17 hat from me. They put it on a stick, and when they

    18 managed to singe it about 70 per cent ... they ordered

    19 me to eat it. I was already fatigued because of all of

    20 the work. I had not any water, but I had to eat this

    21 hat. If I stopped or stalled or tried to get out of

    22 it, I would get a blow, a kick, or I would be hit ..."

    23 Referring to his release in an exchange

    24 organised by the International Committee of the Red

    25 Cross, the witness said that the exchange was delayed

  94. 1 because of these two men who had been killed in the

    2 night between the 7th and the 8th. The Red Cross

    3 insisted on finding them, but they were not to be

    4 found. At the exchange, there were quite a number of

    5 them. All the guards were present. Sliskovic was

    6 present. Aleksovski was present. "All of them were

    7 present," the witness said.

    8 Your Honours, while corroborating other

    9 Prosecution witnesses, Witness C testified about his

    10 arrest by HVO forces on 27 January, 1993. He also

    11 testified about the subsequent detention and

    12 maltreatment in Kaonik camp.

    13 Your Honours, I do not intend to go into the

    14 details of the witness's testimony, except to say that

    15 his testimony on these points are consistent with the

    16 testimony of other Prosecution witnesses.

    17 In the cell where he and his son were

    18 detained, there had been about 18 to 20 detainees and

    19 the conditions had been very bad. During the

    20 detention, because he had been badly beaten and could

    21 not sleep at all and did not have room enough to lie

    22 down, he would simply sit in the cell and listen to the

    23 cries and moans coming from the corridors.

    24 As the witness had been suffering from great

    25 pain resulting from the beatings, at his request, he

  95. 1 had been taken to the Busovaca health centre. In

    2 response to a question as to whether he was given any

    3 treatment at the health centre, the witness responded:

    4 "I cannot really say that it was any help at all."

    5 Testifying further, Your Honours, the witness

    6 said that the guards and camp officials permitted

    7 people from outside to enter the cells and beat the

    8 prisoners, and he identified the accused Zlatko

    9 Aleksovski as the commander of the camp.

    10 Testifying about the breakout of the conflict

    11 between the HVO and the army of Bosnia-Herzegovina

    12 around 27 January, 1993, Witness L said that, after his

    13 arrest, he had been beaten and mistreated by HVO

    14 soldiers. He had been taken to Bare from where he had

    15 been brought to the bus station in Busovaca and then

    16 taken to Kaonik camp. This was his first stint of

    17 detention in Kaonik where he was detained until 8

    18 February, 1993.

    19 The day after he was brought to Kaonik camp,

    20 a group of about 20 detainees, including the witness,

    21 had been taken to Podjele to dig trenches. They dug

    22 throughout the day until about 8.00 in the night

    23 without any rest and then again from 10.00 till the

    24 next morning.

    25 Witness L's second stint of detention, Your

  96. 1 Honours, commenced when he and Witness M were arrested

    2 by HVO soldiers who attacked his village on 16 April,

    3 1993. Upon arrival in Kaonik, Zlatko Aleksovski, the

    4 accused, introduced himself as the camp commander. He

    5 was waiting with several more guards. They had been

    6 put into a cell whereupon members of the HVO military

    7 police, Zarko and Miro, had started mistreating them.

    8 "We were lying on the pallets. They jumped on the

    9 pallets and started hitting us and kicking us in the

    10 back, in the kidney area, and in the head."

    11 Having mistreated the two detainees for some

    12 time, they had left saying they would be back. As

    13 promised, Zarko and Miro had come back, and Miro had

    14 started beating his colleague whilst Zarko stood by

    15 watching. At this stage, Your Honours, it was the

    16 witness's evidence that the accused Aleksovski had

    17 admonished Zarko by saying "What are you waiting for?

    18 Why do you not act in the same way as Miro," and then

    19 Zarko had started hitting him. These two men had

    20 mistreated them again and some time later for the third

    21 time. Then came Goran Medjugorac, an HVO member who

    22 "started mistreating me ... beatings, blows mainly in

    23 the kidney area and the head."

    24 He also had been subjected to mistreatment

    25 and torture by Anto Cakic "who ordered me to stand at

  97. 1 attention ... He would come in every 15 minutes to

    2 check whether I was still standing, and when he came,

    3 he would occasionally hit me with his leg or with his

    4 fist ..."

    5 The witness, Your Honours, also testified

    6 about the procedure of selecting detainees for trench

    7 digging and his own trench digging experiences in

    8 Carica, Strane, Kula, Loncari, and Polom. In Strane,

    9 there had been sniper fire, and bullets had whizzed

    10 past them. At all these locations, they had to dig

    11 trenches from morning till late in the evening.

    12 He described the conditions of detention as

    13 being "very bad." The food was described as

    14 "horrible," and he had not had a shower throughout

    15 this period. He also said that "anybody could come at

    16 any time to abuse" the detainees.

    17 His colleague, Your Honours, Witness M, who

    18 had also been apprehended at the same time,

    19 corroborated the testimony of Witness L. He referred

    20 to incidents of beating and referred, in particular, to

    21 an incident when two soldiers savagely beat him at the

    22 instance of the accused Aleksovski "who had been there

    23 all the time," the witness said.

    24 That day, he had been beaten six times, and

    25 on one occasion, he had lost his consciousness.

  98. 1 His "whole body had been black and blue down to the

    2 ankles, and up to my neck, there were visible bruises

    3 all over my body." This beating, he said, was

    4 described as "a dance party."

    5 Your Honours, whilst the testimonies of

    6 Witnesses L and M are consistent, I submit that they

    7 also corroborate each other on material particulars.

    8 He was also amongst detainees who were taken

    9 to Strane, Loncari, Putis, Kula, Solakovici, Carica,

    10 and Polom to dig trenches in hazardous conditions and

    11 subjected to abuse, merciless beatings, and severe

    12 mistreatment while being engaged in trench digging.

    13 At Strane, he had been whipped and beaten.

    14 He said that "... throughout the period I spent at

    15 Kaonik camp, I was taken to dig trenches and do other

    16 forced labour," as a result of which "once I had on my

    17 two palms 56 blisters ... and not once from the moment

    18 that I was captured on 16 April until I left on 19 June

    19 1993, not once did I have a bath ... we did not even

    20 wash our hands, only when we went to the toilet, if you

    21 had a chance and if the guard would let you wash your

    22 hands and maybe your face ... What clothing I had on

    23 me, that was what I took away with me, the vest I wore

    24 throughout that time rotted, it fell apart, it was

    25 rotten, so I threw it away while I was still in the

  99. 1 camp ... I never had any change of clothing ..."

    2 Recalling his release from Kaonik, the

    3 witness testified that the accused addressing him and

    4 his colleague said: "You will be rewarded if you come

    5 back here. You will not get out alive again," but

    6 "thank God, this wish of the gentleman did not come

    7 true," the witness said before Your Honours.

    8 Testifying further before this Chamber, the

    9 witness said that though the conditions in the camp

    10 were bad, "nobody dared talk about these," even with

    11 the ICRC.

    12 Even after the detainees including the

    13 witness were registered by the International Committee

    14 of the Red Cross and the accused was advised by the

    15 ICRC that the detainees "must not be taken to do labour

    16 where we are not safe, and especially not to the front

    17 lines, and to do forced labour such as we had been

    18 doing," that same night, about midnight, they had been

    19 taken to Strane to dig trenches.

    20 Witness M, Your Honours, was aware of Arab

    21 prisoners who were beaten more severely than others.

    22 One detainee whom he identified as "the Arab from

    23 Syria" "was in a horrible condition ... he had been

    24 beaten and mistreated ... it was terrible -- from early

    25 May up until my exchange ... he was beaten up every

  100. 1 day, he was abused, different men took turns in doing

    2 these things to him."

    3 The witness also said that when ICRC

    4 officials visited the cells in the camp, the accused

    5 denied them access to cell number 4, saying that "that

    6 was some kind of storage room ... that there was no

    7 need to look into that room, that there was no one

    8 there ... and did not have the key ..."

    9 Witness N, Your Honours, also a Bosnian

    10 Muslim, suffered the same fate in Kaonik camp. Witness

    11 N said that the accused, who was the warden of Kaonik

    12 prison, said that the detainees "are now under my

    13 authority."

    14 This witness, Your Honours, testified about

    15 the use of detainees as human shields. He said that

    16 the following afternoon, 15 detainees, including the

    17 witness, were called out by Marko Krilic, tied into

    18 three groups of five each, and then taken to be used as

    19 human shields. They had been taken to Skradno, where

    20 they had to walk towards the village followed by HVO

    21 soldiers. Then they had been taken to Strane where

    22 again they had been used as a human shield. On this

    23 occasion, HVO soldiers had been firing from behind them

    24 towards Strane.

    25 He had also been taken to dig trenches,

  101. 1 during which they had been subjected to abuse and

    2 mistreatment by HVO soldiers, as he said, who "beat us

    3 with rifle butts, with shovels, it was indescribable,"

    4 he said. "There were moments when one felt like

    5 crying ... and there were moments when you wanted to

    6 die ..." They had been "completely exhausted by this

    7 time. There were people with fractured ribs ... There

    8 was no person who had not been either abused or badly

    9 beaten."

    10 Witness O, Your Honours, who also testified

    11 under pseudonym, was also used as a human shield in

    12 Skradno, Strane, and he described the shooting that

    13 went on as they were being used as human shields in

    14 Strane. The next day, he had been taken to Merdani

    15 again to be used as a human shield.

    16 Witnesses P and Q, Your Honours, again

    17 Bosnian Muslim civilians who had been arrested by HVO

    18 soldiers and detained in Kaonik camp, corroborated the

    19 testimony of other witnesses about their use as human

    20 shields in Skradno, Strane, and Merdani. Witness P

    21 said that his release from Kaonik was "like his second

    22 birthday." Witness Q had also been taken to dig

    23 trenches and dugouts in hazardous conditions in Kula

    24 and Prosje, where he had been beaten and mistreated.

    25 Your Honours, Witness R also narrated his

  102. 1 experiences during detention in Kaonik camp. Having

    2 been arrested by the HVO in January of 1993, he had

    3 been detained, during which time he had been taken to

    4 Merdani to be used as a human shield. It was then

    5 Witness R's testimony, Your Honours, that the camp

    6 commander, Aleksovski, was standing by when the

    7 detainees were called out to be used as human shields.

    8 Witness S, Your Honours, also a Bosnian

    9 Muslim civilian, had been arrested by the HVO on 25th

    10 January, 1993, and taken to Kaonik where he was

    11 detained. He too had been taken to Skradno and Strane

    12 to be used as a human shield. He said during the

    13 period of his detention, he had been taken to Donja

    14 Polje, Donja Solakovici, and Bare to dig trenches for

    15 the HVO. On one occasion, he had spoken to the accused

    16 requesting that he be spared from trench-digging as

    17 there were blisters on his hands. The accused had not

    18 responded, "he had simply passed by" and "I was taken

    19 out for digging again," the witness said.

    20 Your Honours, testifying about the pre-war

    21 situation in general and life in Busovaca in

    22 particular, Edin Novalic said that it was more than

    23 cordial and normal, with very cordial and friendly

    24 relations between members of the different

    25 ethnicities. Differences had become visible only after

  103. 1 the first multi-party elections in 1991. "Differences

    2 were becoming more and more profound in everyday life.

    3 HVO posters were visible all through the town, and

    4 little by little, they started arming themselves

    5 illegally. They became stronger and stronger every

    6 day, and at a certain moment in the second half of

    7 1992, the HVO, through the use of force, took over

    8 complete power in the town of Busovaca with barricades

    9 all over the town." In the witness's opinion, it was

    10 "Dario Kordic and Anto Sliskovic who were the major

    11 players in Busovaca."

    12 By January of 1993, conflict had erupted in

    13 Busovaca, with Muslim shops and businesses being

    14 attacked by means of explosive devices on the night of

    15 the 22nd of January.

    16 On 23rd January, Muslims, including the

    17 witness, had been arrested and taken to Kaonik camp

    18 where they had been subjected to the routine of search

    19 and detention in the presence of the accused.

    20 Corroborating the evidence of the use of Muslim

    21 prisoners as human shields, Mr. Novalic testified that

    22 he had been taken to Strane and Merdani to negotiate

    23 the surrender of the two villages.

    24 Another Bosnian Muslim civilian, Meho Sivro,

    25 from the village of Stojkovici, had been arrested on 13

  104. 1 April and brought to Kaonik camp. During the period of

    2 his detention, the witness had been taken to Jelinak on

    3 two occasions to dig trenches. On the first occasion,

    4 he said it had been very dangerous when "all of us

    5 could have got killed because a burst of fire was

    6 opened on" our group of five or six while we were being

    7 taken by an HVO soldier. The second time "it was the

    8 same village," and they had dug throughout the night

    9 till dawn when "the BH army started shelling the

    10 village." Some explosions could also be heard. With

    11 the ensuing panic, the commander had ordered that the

    12 group of detainees be taken away and killed. The

    13 witness had "thought it was the end, that we would all

    14 be executed."

    15 Proceeding towards Loncari, the witness said,

    16 "We almost reached the village when the shooting

    17 started from HVO weapons ... the bullets were hitting

    18 the trees and the shrapnel ... started showering upon

    19 us." The witness described quite vividly how he made

    20 use of the ensuing chaos and panic to make good his

    21 escape, running across fields, jumping over fences, and

    22 sliding down slopes until he got to the territory

    23 controlled by the BH army. Your Honours will recall

    24 the emotional strain on the witness's face when

    25 recounting those events and when he said that as a

  105. 1 result of this, he had to undergo surgery on his right

    2 arm, which has only 60 per cent use for him now.

    3 Another Bosnian Muslim witness, Your Honour,

    4 Rasim Garanovic, said that at the beginning of 1993,

    5 things started to change when "strange things began to

    6 happen ... most probably from Zagreb ... through the

    7 HVO, the HVO police. They started to ignore their

    8 neighbours, the Bosniaks ... with less and less contact

    9 with the Bosniaks" with an HVO "checkpoint right next

    10 to my house."

    11 On 14 April, 1993, he had been arrested, and

    12 on his way to Busovaca, he had passed a checkpoint held

    13 by the Croatian army with RPGs and other weapons.

    14 Upon arrival in Kaonik camp after the routine

    15 registration and search, the witness had been detained

    16 in the hangar, and, describing the night in the hangar,

    17 he said, "The night was very fatal for me. It was very

    18 cold and I got cramps, very bad cramps, in my chest."

    19 Some people had been seated on pallets but most had sat

    20 on concrete and "I remained on concrete." "Then they

    21 put some kind of imaginary line and said that whoever

    22 crossed this line would be shot ..."

    23 The next morning, after he had complained

    24 that he was feeling unwell, he had been taken before

    25 the camp commander, Zlatko Aleksovski, who had

  106. 1 questioned him and then he had been put into a cell

    2 where he had been detained throughout his period of

    3 detention.

    4 He testified, Your Honours, about detainees

    5 being taken out for trench-digging on a daily basis,

    6 about beatings which were "very frequent or relatively

    7 frequent." He said that the names were read out from a

    8 list that was brought out from Aleksovski's office. "I

    9 did hear beatings rather far away in the other cells.

    10 Some people were tortured in the corridor ... we just

    11 listened when this was happening, when they were beaten

    12 up ... from my cell, two guys were taken out and beaten

    13 up." They were Mustafa Hodzic and (redacted). This

    14 is "imprinted in my memory because they beat them so

    15 fiercely that (redacted) had a serious spinal injury ...

    16 still suffering from the consequences ..." (redacted)- told

    17 him that "even Zlatko had hit him once or twice as he

    18 passed by."

    19 Your Honours, another witness -- very well,

    20 Your Honours.

    21 JUDGE RODRIGUES: I think this is a good time

    22 to interrupt our work for today. I should like to

    23 remind you that tomorrow we will meet again here not at

    24 9.00 a.m. but at 9.30. We must bear this in mind

    25 because that means we have an extra half hour to work

  107. 1 or to sleep, depending on everybody's preference.

    2 The hearing is adjourned.

    3 I apologise, Mr. Mikulicic. You wanted to

    4 say something?

    5 MR. MIKULICIC: Your Honour, I apologise. It

    6 is my mistake if I indicated too late that I wanted to

    7 take the floor. But in accordance with my client's

    8 request, Mr. Aleksovski, I would like to ask whether he

    9 could be allowed to go out into the fresh air after he

    10 returns from the courtroom today, and tomorrow he has a

    11 whole day of hearings, and for his medical condition,

    12 could he be allowed to have a walk in the fresh air

    13 after he returns from the courtroom to the detention

    14 unit?

    15 JUDGE RODRIGUES: I think this can be

    16 granted, but I would like to ask the registrar,

    17 Mr. Marc Dubuisson, to tell us the procedure.

    18 THE REGISTRAR: I don't think there will be

    19 the least problem in meeting this request.

    20 JUDGE RODRIGUES: Therefore, it is granted in

    21 the interests of Mr. Aleksovski's health.

    22 MR. MIKULICIC: Thank you, Your Honours, for

    23 your understanding.

    24 JUDGE RODRIGUES: Now we can adjourn until

    25 tomorrow.

  108. 1 --- Whereupon proceedings adjourned at

    2 6.04 p.m., to be reconvened on Tuesday,

    3 the 23rd day of March, 1999, at

    4 9.30 a.m.