Tribunal Criminal Tribunal for the Former Yugoslavia

Page 552

1 Tuesday, 16 December 2003

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 9.15 a.m.

6 JUDGE POCAR: Please be seated.

7 Madam Registrar, would you please call the case.

8 THE REGISTRAR: Good morning, Your Honours. Case number

9 IT-95-14-A, the Prosecution versus Tihomir Blaskic.

10 JUDGE POCAR: Thank you.

11 Can everyone hear me? Good morning to everyone. Can everybody

12 hear me? The interpreters? The appellant? Can the appellant hear me?

13 THE APPELLANT: [Interpretation] Good morning, Your Honour. Yes, I

14 can hear you very well.

15 JUDGE POCAR: The Defence, Prosecution?

16 So I would like to call for the appearances of the parties. I

17 turn first to the Defence.

18 MR. HAYMAN: Good morning, Your Honours. Appearing on behalf of

19 appellant, Russell Hayman, with my co-counsel to my left, Anto Nobilo,

20 Andrew Paley, and Robert Perrin. Thank you.

21 JUDGE POCAR: I thank you.

22 The Prosecution.

23 MR. FARRELL: Good morning, Your Honours. Appearing for the

24 Prosecution is Norman Farrell, Ms. Sonja Boelaert-Suominen,

25 Ms. Michelle Jarvis, Ms. Marie-Ursula Kind, and Ms. Kelly Howick. Thank

Page 553

1 you.

2 JUDGE POCAR: Thank you.

3 I understand -- I've been told that the health of the appellant is

4 not very well. May I ask the Defence if that's correct, and then perhaps

5 the appellant himself.

6 MR. HAYMAN: Thank you, Your Honour. I think we can proceed this

7 morning, but I think we would be derelict in not informing Your Honours of

8 certain health information regarding the appellant. And I think it would

9 be most appropriate if we go into private session for just a moment. I

10 think this will only take a minute or two.

11 JUDGE POCAR: Thank you. May we go into closed session for a

12 couple of minutes. Sorry, private session.

13 [Private session]

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20 [Open session]

21 THE REGISTRAR: We're in open session, Your Honour.

22 JUDGE POCAR: Thank you. As announced by the registrar, this case

23 is the Prosecutor versus Tihomir Blaskic. Last week, the evidentiary

24 portion of this hearing took place, and six Defence witnesses gave their

25 testimony before the Appeals Chamber. The evidentiary portion of this

Page 556

1 hearing has been completed. We will now hear the final arguments of the

2 parties in this appeal.

3 In its judgement, rendered on the 3rd of March, 2000, the

4 Trial Chamber convicted Mr. Blaskic of 19 counts, set forth in the

5 indictment. These counts encompassed violation of Articles 2, 3, and 5 of

6 the Statute. Mr. Blaskic was not found guilty of Count 2, a violation of

7 the laws or customs of war, recognised by Article 3(B) of the Statute.

8 Furthermore, in relation to Counts 3 and 4, he was found not guilty.

9 Mr. Blaskic was found guilty for having ordered the crimes, and

10 the Trial Chamber also stated in the disposition of the judgement that in

11 any event, as a commander, he failed to take the necessary and reasonable

12 measures which would have allowed these crimes to be prevented or the

13 perpetrators thereof to be punished.

14 The Trial Chamber imposed a single sentence of 45 years

15 imprisonment. The Defence filed its notice of appeal against the

16 judgement on 17 March 2000. Due to decisions suspending the briefing

17 schedule on 19 May 2000, and again on 26 September 2000, as well as a

18 decision dated 7 November 2001, extending the deadline for the filing of

19 the appellant's brief, the appellant's brief was filed on 14 January 2002.

20 In the introduction to the appellant's brief, the appellant claims

21 that the additional evidence drawn from the Croatian centre archive and

22 the proceedings in the Kordic trial, exonerates him from all charges and

23 also claims that the Prosecution has withheld exculpatory evidence

24 from -- submitted in the Kordic trial from disclosure in his case. He

25 further argues that independent of the additional evidence, the

Page 557

1 Trial Chamber committed numerous errors of fact and law, warranting the

2 reversal of the appellant's convictions.

3 The appellant is seeking to have all of his convictions quashed.

4 I will briefly summarise the grounds of appeal as follows: The

5 first ground of appeal is that the appellant, Mr. Blaskic, did not have

6 effective control of all HVO troops in Central Bosnia; that the HVO

7 command structure was unorganised and ineffective; and that new evidence

8 confirms the evidence presented at trial regarding the fragmented nature

9 of the HVO command structure and his lack of effective control over the

10 units operating in the Central Bosnia operative zone.

11 The second ground of appeal is that no reasonable tribunal of fact

12 could conclude that the appellant is responsible for crimes committed in

13 the Vitez municipality. The appellant submits, as part of this ground,

14 that no reasonable tribunal of fact could conclude that the appellant is

15 responsible for crimes committed in Ahmici on 16 April 1993 and that he

16 did not order the commission of any other crimes in the Vitez

17 municipality.

18 The third ground of appeal is that no reasonable tribunal of fact

19 could conclude that the appellant is a responsible for crimes committed in

20 the Busovaca municipality. As part of this ground, the appellant submits

21 that he did not order the crimes in Loncari and Ocehnici. He's not liable

22 under Article 7(3) for the crimes in these locations. And he is not

23 responsible for the destruction of religious or educational property in

24 Busovaca.

25 The fourth ground of appeal is that no reasonable tribunal of fact

Page 558

1 could conclude that the appellant is responsible for crimes committed in

2 Kiseljak municipality. The appellant submits that he did not order

3 illegal attacks on civilians in April 1993, that he is not liable for the

4 June 1993 campaign in Kiseljak, and that new evidence establishes that he

5 did not have effective control over the HVO units in Kiseljak.

6 The fifth ground of appeal is that the appellant is not guilty of

7 detention crimes, that he did not order the cruel or inhuman treatment of

8 detainees and that he has no command responsibility for the detention

9 crimes.

10 The sixth ground is that he was denied due process of law, namely,

11 that the indictment against him was defective and cannot support his trial

12 and conviction under Article 7(1) and 7(3), as a matter of law, and that

13 the Prosecutor violated her disclosure obligations under Rule 68 and

14 materially prejudiced the appellant's ability to conduct his defence.

15 The seventh ground is that the Trial Chamber erred in finding the

16 appellant guilty under Article 7. The Trial Chamber erred, the appellant

17 says, when defining the specific elements of criminal responsibility under

18 both Article 7(1) and Article 7(3) of the Statute. And by failing to draw

19 a clear distinction between those two forms of liability. By doing so,

20 the appellant states, the Trial Chamber provided the appellant with

21 insufficient notice of the legal basis for his conviction, which in turn

22 impedes his ability to appeal the judgement.

23 The eighth ground is that the Trial Chamber erred in finding the

24 appellant guilty of crimes against humanity, under Article 5.

25 The ninth ground is that the Trial Chamber erred in its

Page 559

1 application of Article 2 of the Statute. The appellant submits that the

2 Trial Chamber erred in finding that nationality does not determine

3 protected person status within the meaning of Article 2, and that it erred

4 in finding that Croatia and the Bosnian Republic were not co-belligerent

5 states with normal diplomatic relations.

6 The tenth and final ground of appeal is that the Trial Chamber

7 erred in its sentencing of the appellant.

8 I would now like to remind the parties about the criteria

9 applicable to errors of fact or law alleged on appeal. As the

10 Appeal Chamber has pointed out on numerous occasions, an appeal is not an

11 occasion for parties to re-plead their case. It is not a trial de novo.

12 The general rule is that on appeal, the parties must limit their arguments

13 to matters falling within the framework of Article 25 of the Statute, that

14 is, errors on question of law invalidating the decision or errors of fact

15 which have occasioned a miscarriage of justice.

16 In a rare case, a party may raise an issue of general importance

17 to the Tribunal's jurisprudence.

18 An appellant alleging an error of fact must demonstrate that no

19 reasonable trier of fact could have reached the conclusion being

20 challenged and that this error has caused a miscarriage of justice.

21 I will now like to outline the manner in which we will proceed for

22 this hearing. As set out in the Scheduling Order issued by the Appeal

23 Chamber on the 2nd of December, 2003, we will first hear the submissions

24 of the Defence, which will have a total of four hours. Then the

25 Prosecution will have in turn a total of four hours to submit its

Page 560

1 arguments in response. The floor will then go back to the Defence for its

2 submissions in reply, which will take one hour, 45 minutes. Of course,

3 parties are not requested to make use of all the time allocated to them.

4 It also goes without saying that members of the Bench may put questions to

5 the parties at the end of each pleading, should they deem it appropriate.

6 At the conclusion of the hearing, the appellant himself may

7 address briefly the Chamber if he so wishes.

8 Breaks will take place as indicated in the Scheduling Order, or as

9 otherwise appropriate.

10 I would also like to remind the parties that if they have to refer

11 to any testimony of a protected witness during their pleadings, they

12 should use their pseudonyms and avoid mentioning any element that may

13 reveal, directly or indirectly, the identity of the witness concerned. As

14 the case may be, if it is absolutely necessary to mention elements that

15 would disclose the identity, they should ask to go into closed session.

16 I will now turn to the Defence for their submissions. Mr. Hayman,

17 you have the floor.

18 MR. HAYMAN: Thank you, Your Honour, learned counsel. The

19 appellant wishes to thank each of Your Honours for the long time and

20 effort that has gone into this appeal. He recognises, as do we all, that

21 this case is an arduous task with a voluminous record below, and with many

22 complex questions.

23 I would like to begin with a short roadmap of what the Defence

24 expects to cover in our argument. First, I will address the Court with

25 respect to the trial below, some observations; then the legal standard,

Page 561

1 because we do believe the legal standard governing these procedures should

2 be modified somewhat as compared to other appeals; then I will cover

3 different geographical areas, that of Ahmici, other locations in the Vitez

4 municipality, the Busovaca municipality; Mr. Nobilo will address the Court

5 with respect to the Kiseljak municipality; and I will address the Court

6 with respect to a few remaining areas. There are, as the Court has

7 outlined, a number of legal issues that are not as intensely factual as

8 some of the ones I just outlined. We will not spend as much time on those

9 legal issues in our argument. Four hours is enough time to cover some of

10 our points but not all of our points in our, for example, very lengthy

11 appellate brief.

12 And after the final remarks by counsel tomorrow, I do expect the

13 appellant to address you very briefly, and I hope he will be able to do so

14 and that he feels well enough to be able to do so. He certainly hopes to.

15 As Your Honour has indicated, I will go in and out of private

16 session. I don't think there's anything I will be saying today that will

17 require a closed session, although we may have to turn off the monitors

18 when we're in private session, looking at at least one document that is

19 under seal.

20 I know it's customary for Your Honours to hold your questions

21 until the end of counsel's statement. In my legal system, I'm used to

22 being interrupted by the Court constantly, so I welcome that. If I say

23 something that doesn't make sense and you'd like to take some of my time

24 to ask a question, please do it. You are an audience of five and you are

25 all that matters in this case at this point for the appellant. Your

Page 562

1 decisions and the information that you have to make the best decision that

2 you can.

3 I'm going to use certain visual aids this morning. They're going

4 to all appear on the video monitors. And I believe that the correct

5 button to see that material is the "computer evidence" button, at least

6 that's the button we use here at our table. The material I'll be showing

7 you consists of trial exhibits, of appellate material, of enlargements of

8 trial transcripts, a couple of clips of actual testimony from the trial,

9 video clips, and then a few charts which are not evidence but are argument

10 of counsel, and those can be -- we can print those and provide them to

11 lodge them as part of the record if the Court wishes. Of course we don't

12 mean to suggest they're evidence. They're not evidence. They're mere

13 aids in argument.

14 First, the trial below.

15 Our position continues to be that the trial below was infected.

16 The most critical evidence to the case was not available at the time of

17 the trial. The HVO War Archive was concealed. It was concealed by

18 President Tudjman to protect himself and his political cronies. The

19 appellant did not have access to the HVO War Archive during the trial.

20 And indeed, he was convicted in part because he did not have access to

21 this material.

22 The Trial Chamber of course was frustrated that evidence was

23 missing in the trial proceedings. And there is one point in the judgement

24 where the Trial Chamber comments that although Blaskic claimed he ordered

25 an investigation into the crimes at Ahmici by SIS, the absence of a SIS

Page 563

1 report casts doubt on his testimony that he actually ordered that

2 investigation.

3 May I just ask if some evidence or some material has appeared on

4 the parties' and the Court's video screens? I know we had some trouble

5 with the technology this morning. I see no troubled faces with respect to

6 that question, Your Honour, so I will continue.

7 We now have the report that the Trial Chamber commented was

8 missing at trial and that cast doubt on appellant's veracity and on his

9 testimony that he had ordered an investigation into the crimes in Ahmici,

10 and indeed later on in my argument, when I'm addressing the

11 failure-to-punish issue, I will give you a chronology that will include

12 why this report fits in exactly the correct time period when it would have

13 been prepared in response to appellant's orders. This is a SIS report of

14 the crimes in Ahmici, prepared -- it's dated on 26 November 1993, and it

15 names names and has at least a certain amount of particulars.

16 The trial below was also infected because the intelligence

17 services of both Croatia and Bosnia and Herzegovina --

18 JUDGE POCAR: Mr. Hayman --

19 MR. HAYMAN: Yes, Your Honour.

20 JUDGE POCAR: Can you mention the exhibit, the number of the

21 exhibit, when you refer to it?

22 MR. HAYMAN: Yes. And I intend to in every such instance. This

23 is Exhibit 1 to the first Rule 115 motion. The SIS report on Ahmici, the

24 cover transmittal is dated 15 March, 1994. The actual underlying report

25 which you see here is dated 26 November 1993.

Page 564

1 So both Croatia and Bosnia-Herzegovina, the secret services of

2 those countries, worked to prevent the Trial Chamber below from having

3 access to the most relevant exculpatory evidence for appellant. On the

4 Croatian side, the Security and Information Service, SIS, concealed the

5 archive, as was later recounted in a report prepared by the Croatian

6 authorities, and this is Exhibit 1 to the second Rule 115 motion,

7 involving the difficulties and the lack of access that my co-counsel and I

8 had to the War Archive and to the most critical reports, many of which

9 dealt with the military police, the HVO military police, and which we were

10 consistently not only denied access but told they didn't exist.

11 In addition, authorities of the Republic of Bosnia-Herzegovina

12 concealed critical BH army documents from the Trial Chamber. The

13 Trial Chamber, at the Defence's request, issued two subpoenas to the

14 Republic of Bosnia-Herzegovina on behalf of the Defence, one on the 28th

15 of April, 1997, another on the 29th of April, 1998. As the Trial Chamber

16 was informed, the responsive documents were not produced by the BH

17 government, but we subsequently, after trial, learned that responsive

18 documents did exist and had not been produced to us and to the

19 Trial Chamber. And for examples of that, the Court can look at the fourth

20 Rule 115 motion, Exhibits 12, 13, and 14, all BH army original

21 documentation from the war, responsive to the subpoenas that the

22 Trial Chamber issued that were not produced in a timely fashion, indeed

23 weren't produced at all. We got these later on after the trial, through

24 the Office of the Prosecutor.

25 So we did not have the War Archive below. We had SIS and the BH

Page 565

1 army, the BH government, excuse me, with holding important records from

2 the Trial Chamber, and unfortunately we had the office of the Tribunal

3 Prosecutor also withholding a large amount of exculpatory material, in

4 violation of Rule 68. And I don't mean by those comments to impugn our

5 colleague Mr. Farrell. I'm not making a personal accusation against him.

6 I'm not making a personal accusation against anyone. But what is

7 absolutely clear is the Office of the Prosecutor, as a whole, had

8 voluminous exculpatory material before and during the trial of appellant

9 which, for whatever reason, was not produced, even though it should have

10 been under Rule 68.

11 How did this come to pass? Well, Colonel Blaskic and Mr. Kordic

12 were indicted in a single indictment on the 10th of November, 1995.

13 Colonel Blaskic came to The Hague voluntarily in April of 1996, wanted a

14 trial, wanted to address this case, and his trial went forward. It went

15 forward in June of 1997, alone, with no co-defendants.

16 What then happened, after the Kordic proceedings came under way,

17 is naturally the two trial teams vigorously pursued the best theory of

18 their respective cases, but those theories diverged. Those theories

19 diverged, and ultimately, the Prosecutor's office took different and

20 indeed fundamentally inconsistent positions in the two cases.

21 In the Blaskic case, they argued that a single military chain of

22 command existed over all HVO units, without interference. And what you

23 see now before you is from the trial transcript, page 24853. The

24 Prosecutor's closing argument in the Blaskic case. And I will read it:

25 "Your Honour, that the one person identified to kill civilians in this

Page 566

1 case, the one person identified as giving that order is Blaskic, nobody

2 else. There's not one shred of evidence that anybody gave an order to

3 kill from on high, and the only person that gave that order in the

4 evidence in the record is Blaskic, the only one."

5 Your Honours now know that the record has changed. That statement

6 is no longer true. You can debate the weight of the evidence, but that

7 statement is no longer true. If the Trial Chamber had had the evidence

8 that Your Honours have, the Prosecutor could not have made that statement.

9 What then evolved with respect to the Kordic and Blaskic

10 Prosecutions was the use of witnesses in one that were not produced in the

11 other. They were not only not used in the other, but the statements and

12 exculpatory information, for example, that witnesses in Kordic

13 provided - that is, exculpatory as to Blaskic - were not provided to

14 Colonel Blaskic's Defence team. So in the Kordic case, the Prosecutor

15 used Witness Watkins, BA3, by way of example, whereas in Blaskic, they

16 used an EC monitor, for example, Mr. Baggesen, who in stark contrast to

17 the testimony Your Honours heard last week, Mr. Baggesen testified that

18 "the only one who had command over the military police was Mr. Blaskic

19 himself."

20 A very, very important piece of evidence in the Blaskic trial. We

21 did not have all the evidence that Your Honours have seen, that you heard

22 last week, that you've seen in the documents, to confront Mr. Baggesen

23 with. I think if we had, he would have withdrawn his statement. He would

24 have to.

25 So this exculpatory evidence that was being used in the Kordic

Page 567

1 case was not provided to us, the Blaskic Defence. You saw the Watkins

2 statement we got last week. We got it for the first time, despite the

3 fact that it contained clearly exculpatory material.

4 The same is true of the testimony of witnesses BA1, BA3, and BA5,

5 which you have now heard for yourselves. And documents were not produced

6 to us that were clearly Rule 68 materials. In our second Rule 115 motion

7 we identify over 20 of these documents, and they are part of the record.

8 Now, Rule 68 material has to be produced, regardless of whether

9 there's a request for it. The Prosecutor may argue that these materials

10 identifying the military -- direct military authority of Dario Kordic,

11 Kordic's control over the Jokers, over criminal bands in Busovaca, they

12 may say: This is not exculpatory because Blaskic and Kordic were two

13 bodies, one mind, or they worked hand in glove. There, any evidence of

14 the guilt of Kordic is also evidence of the guilt of Blaskic.

15 What's wrong with that argument, which you may well hear? Well,

16 one, the witnesses you have heard uniformly reject that argument. You

17 heard that last week. They rejected two bodies, one brain, as a metaphor,

18 or analogy, they rejected hand in glove, and I would direct you to the

19 testimony, for example, of Philip Watkins and BA3.

20 But furthermore, this argument that somehow any evidence against

21 Kordic is also evidence against Blaskic, it is specious. It merely

22 assumes away the existence of exculpatory material and it is also belied

23 by the history and the well-articulated positions of the parties in this

24 case.

25 On the 26th of November, 1996, we filed -- appellant filed a

Page 568

1 motion to compel the production of Rule 68 material by the office of the

2 Tribunal Prosecutor. We specifically demanded certain categories of

3 documents in that motion. One category was, paragraph 3: "All evidence

4 that individuals other than the accused and outside the formal HVO chain

5 of command at any time exercised actual or de facto command and control

6 over HVO activities alleged in the indictment to constitute a crime."

7 We made it perfectly clear what was exculpatory material from the

8 Defence perspective. This was a command responsibility case at the time,

9 and we made it very clear what was needed. We also asked for information

10 indicating that persons other than the accused exercised command or

11 control over the detention of civilians. Your Honours heard testimony on

12 that subject last week, testimony we should have had.

13 In another paragraph which we weren't able to get imaged, we asked

14 for: "All information tending to suggest that any persons other than the

15 accused and military superiors and subordinates exercised on one or more

16 occasions command and control over HVO military personnel or decisions."

17 Namely, anyone outside the military chain of command exerting

18 command or control over any military personnel or decisions.

19 Paragraph 2(o), we also asked for the existence at any time

20 material to the indictment of evidence of separate HVO and HDZ

21 institutions, or separate chains of command and control over such

22 institutions. We were specifically identifying the possibility that there

23 were parallel, political, and military chains of command.

24 The Prosecutor was ordered, in the Court's ruling on this motion,

25 and this is before the Court now, to state to the Court whether the

Page 569

1 materials requested in our motion were in the Prosecutor's possession,

2 whether they take a position contrary to the motion, i.e., that they don't

3 contain exculpatory evidence, and if they do possess exculpatory evidence

4 but there's some other reason why they shouldn't produce them due to

5 confidentiality, et cetera, that they so advise the Court.

6 That was not done. That was not done with respect to the

7 materials that we have raised with this Court, we filed, attached to the

8 second Rule 115 motion. It was not done with respect to Mr. Watkins'

9 statement or the other statements that we discussed with Your Honours.

10 For example, what did we learn when we got Philip Watkins'

11 statement last week, thanks to the order that Your Honours entered? And

12 this is from Exhibit H1, the statement that was produced last week. We

13 learned in this portion of the statement, for example, that the Jokers,

14 the very unit that was in Ahmici on the 16th of April and committed the

15 crimes there, on other occasions had refused to accept Colonel Blaskic's

16 authority and would only accept the authority of Dario Kordic.

17 Mr. Watkins gave this statement to the Prosecutor on the 1st of

18 June, 1996, about five months prior to our motion. This statement was

19 taken about two months after the accused surrendered. It was taken for

20 the purpose of his case. The investigators that took the statement were

21 preparing for his trial, and yet this material was withheld from the

22 Defence.

23 We don't know what else is out there. We don't know what other

24 Rule 68 material in the files of the Prosecutor's office, other witness

25 statements, other notes, other information, is still there. To our

Page 570

1 knowledge no investigation has been conducted within the office of the

2 Tribunal Prosecutor into these violations, and unfortunately it creates a

3 situation now where the office as a whole is motivated, has an interest in

4 defending its own conduct, which is a conflict of interest with pursuing

5 the truth.

6 But Your Honours have laboured long and hard to try and change the

7 record and complete the record below, and for that we thank you. We have

8 spent three years filing Rule 115 motions with you, and you patiently have

9 reviewed them and made your decisions with respect to those motions. You

10 have accepted 67 new items of documentary evidence, as well as the

11 testimony of the witnesses we heard last week. So now the record on

12 appeal is a mix of trial evidence and a very substantial body of new

13 evidence that was not available to the Trial Chamber below.

14 My point in summation is the cumulative effect of these defects in

15 the trial below was there was a systematic bias in the documentary

16 evidence available for the Trial Chamber. There was a systematic bias in

17 the available witness testimony, and there was the advocacy of positions

18 by the Office of the Prosecutor that were inconsistent with positions

19 ultimately taken in other prosecutions. We do not fault the Trial Chamber

20 for this. The Trial Chamber issued subpoenas to Bosnia-Herzegovina. The

21 Trial Chamber granted our Rule 68 motion and ordered the material

22 produced. The Trial Chamber was misled.

23 Now I'd like to turn to the legal framework. The Court has stated

24 the normal standard of review in a case such as this, where there is some

25 amount of Rule 115 evidence. The Kupreskic Appeals Chamber, at paragraph

Page 571

1 75, recites the standard: "No reasonable tribunal of fact could have

2 reached a conclusion of guilt based upon the evidence before the

3 Trial Chamber, together with the additional evidence admitted during the

4 appellate proceedings." That is the law of this Court at present. It's a

5 deferential standard. Is it the correct standard here, given all that has

6 gone on?

7 You will be required to evaluate the credibility and

8 trustworthiness of a significant volume of new evidence produced on

9 appeal, both documentary and testimonial. There are no findings below by

10 the Trial Chamber as to the credibility or the weight to be given to this

11 new evidence. In that sense, you cannot defer to findings of the

12 Trial Chamber as to such matters.

13 Furthermore, there are direct clashes, many significant direct

14 clashes, between the trial evidence and the new evidence that you have

15 heard and received. For example, I've already talked about it and I will

16 probably talk about it again. Did Colonel Blaskic have effective control

17 over the military police? Mr. Baggesen said not only yes but that Blaskic

18 was the only one who had effective control. You have now heard witnesses

19 from every walk of life, civilians, military, et cetera, as well as

20 the -- received the investigative product of the highest levels of the

21 Croatian intelligence service, which absolutely refutes and belies that

22 proposition.

23 How are you to weigh and review that material under the "no

24 reasonable tribunal of fact" standard?

25 Similarly, with respect to the issue: Was there a BH army

Page 572

1 presence in Ahmici? Was there a BH army presence in Stari Vitez? That

2 is, were there armed elements in those two localities at important times?

3 You now have radically conflicting evidence in the new evidence on these

4 points, which I will address later. Right now I'm addressing the

5 procedural question of the legal standard.

6 We propose that you must review this new mix of evidence de novo,

7 first, as a practical matter. Because there are no findings, no

8 credibility assessment, and indeed the Trial Chamber could not have

9 assessed the value and credibility of the new evidence. You have to

10 review that de novo. How do you review that de novo and yet defer to the

11 Trial Chamber as to the old trial evidence? You must apply a uniform

12 standard to the evidence, and that standard must be de novo.

13 There's another reason that that must be the standard. Where a

14 significant portion of the new evidence on key matters was withheld from

15 the Trial Chamber, in violation of Rule 68, international standards of due

16 process of law require either a new trial or, at a minimum, de novo

17 review.

18 In the United Kingdom, the courts have uniformly that he would

19 once it is determined on appeal that the new evidence renders the verdict

20 unsafe, the conviction must be quashed and either an acquittal or a new

21 trial granted. Of course, at the new trial, all evidence is tested under

22 a proof beyond reasonable doubt standard. This is set forth, for example,

23 in the McNamee case, 1998 C.A., 17 December 1998.

24 In the United States, the standard is similar, under Brady v.

25 Maryland, 373 U.S. 83 (1963). Reversal is required when the new evidence

Page 573

1 impacts or undermines evidence that was central to the case.

2 Here, the Prosecutor's suppression of evidence precluded

3 appellant's ability to effectively prepare his case, it distorted the

4 evidentiary record presented to the Trial Chamber and denied the appellant

5 a fair trial under the principles of this Tribunal.

6 Applying the "no reasonable tribunal of fact" standard would

7 reward Rule 68 violations by permitting the Prosecutor to prevail on a

8 lower standard of proof on appeal than she would have faced at trial had

9 all the evidence that should have been produced been produced.

10 That would be a miscarriage of justice to incentivise [sic]

11 Prosecutors in this way. And I'm not suggesting that they would respond

12 to that incentive. But that just cannot be. That cannot be the law of

13 this Tribunal, that that kind of conduct results in a higher standard, a

14 higher hurdle for an appellant in this situation.

15 We also submit that in weighing the evidence, should you not order

16 a new trial, you are going to be confronted with situations where there

17 are grey areas, there are unknowns, where you heard from a witness and you

18 didn't hear from a trial witness, it will be difficult to weigh and

19 compare that evidence. It follows, we believe, from the "proof beyond a

20 reasonable doubt" standard, and from the fact that you should be reviewing

21 this material de novo, that uncertainties and doubts in those comparisons

22 must be drawn in favour of the appellant and we also believe this is true

23 due to the fact if he doesn't receive a new trial, that he will never have

24 an appeal from Your Honours' decision. And every developed system of law

25 provides for an appeal from the finder of fact. He will not have an

Page 574

1 appeal from Your Honours' decision. He accepts that. We're not

2 complaining. But because there will be no appeal, doubts should be drawn

3 in his favour, not against him.

4 There are a couple of themes that I'd like to touch upon. I'm

5 moving now out of the legal standard area, and I'd like to touch on a

6 couple of themes before I address the crimes in Ahmici.

7 One of the themes from the judgement that I've already alluded to

8 is that guilt was inferred in certain respects from a lack of evidence

9 available before the Trial Chamber. The failure of the appellant to

10 produce the SIS report on the crimes in Ahmici is the leading example, and

11 now you have it. Now you have that document. We also have a much more

12 complete set of the reports, of the orders issued by appellant at the

13 critical time, on the 15th of April and early in the morning on the 16th

14 of April.

15 During the trial, we did not have Prosecutor's rebuttal Exhibit

16 PA12. This is an order to the military police with respect to their

17 duties to secure and defend the Vitez-Busovaca road and repel any enemy

18 attack. This document came from the Croatian archives. And as you're

19 reviewing the evidence in your deliberations, any document you see in the

20 upper right-hand corner, this stamp, this round stamp, that means it came

21 from the archives, and indeed this is a document that the Prosecutor

22 submitted, purportedly in rebuttal. We thank him for doing so. It

23 clarifies exactly what orders were given to the military police. It's an

24 exculpatory document, and now you have it.

25 A second theme that I'd like to comment upon is the concentration

Page 575

1 of the crimes found by the Trial Chamber in certain very limited time

2 periods. If you read the indictment, the indictment talks about crimes

3 from 1992 to 1994, continuous, ongoing, widespread. If you compare that

4 with the judgement, the judgement found basically all of the crimes, at

5 least the vast majority, on literally a few limited days, almost all in

6 the spring of 1993. So in Vitez, they found crimes on the 16th, the 18th

7 of April; in Kiseljak, 18th of April; Busovaca, 17th to 19th of April;

8 Kiseljak, 12th of June; and then finally the Grbavica battle on the 7th of

9 September, 1993.

10 My point is: As you examine that material and you examine the

11 efforts of the appellant to build a military organisation where discipline

12 was respected, where orders were respected, where criminal conduct was not

13 condoned, you see over the time line that when war broke out in April, you

14 had crimes. And as these efforts to organise the HVO and create a more

15 disciplined force, that those efforts bore fruit. And you can see that

16 when you look these data points, these points in time when the

17 Trial Chamber found crimes were committed.

18 Now I'd like to go to the Ahmici crimes. What is Ahmici to this

19 case? It was indisputably the centrepiece of the Prosecution before the

20 Trial Chamber. More recently, on the 21st of November of last year, our

21 colleague said in his argument before Your Honours, and I quote: "This

22 case is not about Ahmici."

23 Why are they moving away from Ahmici as the centrepiece of their

24 case? Well, they're moving away from it because their evidence has

25 crumbled and has been utterly refuted by the new evidence. Ahmici is the

Page 576

1 reason, we submit, that appellant was indicted; it's the reason this case

2 became the subject of political intrigue in Croatia and

3 Bosnia-Herzegovina; it's the reason he was convicted; and it's the reason

4 that he was given a sentence that exceeds his likely natural life.

5 Having used Ahmici to secure this sentence, the Prosecutor cannot

6 now claim that Ahmici is a mere footnote to this case. It is the heart

7 and soul of their case.

8 Where does the story of Ahmici begin? At the trial below, the

9 story began in Ahmici, it began in Vitez, it began in the Hotel Vitez. We

10 now know, based on the new evidence, the story of Ahmici begins in

11 Busovaca in 1992 and in January of 1993. How do we know that? We know

12 from this SIS report in the fall of 1992, Exhibit 102 to the first Rule

13 115 motion, that in 1992, Anto Sliskovic was forming his own special unit,

14 a special unit of individuals. And this is later in the same report, page

15 2, the fourth bullet: "That in 1992 were starting to terrorise the Muslim

16 population in Busovaca so as to provoke interethnic conflict and create

17 tension between Croats and Muslims."

18 As an aside, Your Honours, as professional Judges, you know how to

19 evaluate evidence, but I point out: This report was written in 1992.

20 It's from the archive, if I'm not mistaken. There's no issue as to its

21 authenticity. There's no claim that in 1992 someone was creating

22 information to mislead Your Honours or mislead this Court. This kind of

23 evidence is the best evidence, created before people had motives to

24 distort or misrepresent the evidence.

25 And then, moving into January of 1993, there's now voluminous

Page 577

1 evidence establishing that that conflict was started by Kordic and

2 Sliskovic to create tension and terrorise the Muslim population. This is

3 a portion of Exhibit 14 to the fourth Rule 115 motion, noting that

4 these -- this special unit, the prime mover is Anto Sliskovic, with whom

5 there are eight other soldiers, extremists, alongside Sliskovic are

6 Vlado Cosic and Zarko Milic, supported by Dario Kordic.

7 And this information is not limited to information developed by

8 SIS. This is Exhibit D591, from the 28th of April, 1993. It's an ECMM

9 report, noting that: "Mr. Kordic, located in Busovaca, is the man -- the

10 main responsible identified by all agencies of the troubles in Busovaca

11 two months before." Namely, in the January/February time frame.

12 And then it goes on to talk about Kordic controlling military HVO

13 forces.

14 There are other SIS reports. Again, this SIS report, Exhibit 8 to

15 the first Rule 115 motion, again dated 18 February 1993, before war broke

16 out in the Vitez municipality, noting the formation of Kordic's and

17 Kostroman's special private police, headed by Sliskovic, which now has

18 grown to 30 or 40 members. They're criminals, and they're given the

19 dirtiest assignments, such as murder, robbery et cetera, called a squadron

20 of death.

21 The witness testimony that Your Honours have now heard is the

22 same. Witness BA4, a lifelong resident of Busovaca, testified before

23 Your Honours that there was only one person in charge of everything that

24 happened then, May 1992, and that happened later on. It was just one, and

25 one person only: Dario Kordic, with his followers. That was from the

Page 578

1 transcript of our hearing around page 485. I don't have a precise cite.

2 On page 485 of the transcript that witness went on to describe it was

3 following his orders, Sliskovic, that all the looting and nightmares

4 occurred by his followers, his subjects, who were the Jokers in the police

5 and in the military police.

6 Thus, SIS, ECMM, and there was a BH army exhibit in there. I'm

7 sorry if I misidentified it. Let's look. Let's go back to Exhibit 14, to

8 the fourth Rule 115 motion. This passage is from a BH army report dated

9 26 January 1993. My apologies for misstating the source of that material.

10 Thus SIS, the BH army, the European Monitoring Mission, all found

11 that Kordic and Sliskovic ordered crimes of terror, directed crimes of

12 terror against Muslims in Busovaca before January 1993, in January 1993,

13 and that they included the use of the Jokers and the HVO military police

14 in those clandestine criminal acts.

15 That is where the story of Ahmici begins.

16 You are now, because of the new evidence, in a position to

17 contrast the extremist and criminal purposes of those I've just been

18 discussing with Colonel Blaskic's attitude and motives. And for this, I

19 need to briefly go into private session and to turn off the monitor for

20 the gallery. I will only need a moment, Your Honours.

21 JUDGE POCAR: We'll go into private session.

22 [Private session]

23 (redacted)

24 (redacted)

25 (redacted)

Page 579

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 [Open session]


15 MR. HAYMAN: Following up on that point: In the record, and I

16 don't have them to show to Your Honours, but in the record, there are a

17 series of about eight orders, from February of 1993, co-signed by

18 Colonel Blaskic and General Hadzihasanovic, or other BH army

19 representatives, implementing a number of these joint command type

20 orders -- we need to make sure that what we just had isn't up on the

21 monitor. I don't think it is. I think it's a picture instead.

22 There are volumes, if you will, of material, documentary material,

23 supporting the accused's efforts --

24 If it's on the monitor -- well, it's not on the public monitor. I

25 can see it's not on the monitor out there. But maybe we -- tell you what,

Page 580

1 I'll go to something else, to eliminate any possibility that it's on the

2 screen. I'm just going back to an exhibit we've already discussed, for

3 witness security purposes.

4 So there are voluminous joint commission, joint command documents

5 substantiating the testimony we just looked at. And fundamentally, when

6 you ask the question: What were Blaskic's motives? What was he trying to

7 do? What did he want? The Court knows -- the Court now knows that what

8 happened after Ahmici was -- of course, it evoked a tremendous backlash

9 from the BH army. The HVO was outnumbered 10 to 1 or 7 to 1 in the

10 Lasva Valley, and this is the statement of Philip Watkins. What happened?

11 What happened after Ahmici? He describes it as this HVO military failure

12 prompted a strong BH army reaction and led to direct military

13 confrontation with the HVO. The HVO suffered military defeats in the

14 Lasva and other valleys, and a further consequence was the isolation of

15 the Croat communities into defensive pockets.

16 The HVO was in a horrible military situation in the Lasva Valley,

17 encircled in these pockets. The last thing that Colonel Blaskic, as the

18 military commander, wanted was to have the 3rd Corps and the other BH army

19 corps coming at him from all directions in these tiny pockets. What

20 happened in Ahmici was a military disaster in terms of what

21 Colonel Blaskic wanted. And the reason, how can we harmonise that? It

22 wasn't conceptualised as a military action. It was terror. It was

23 conceptualised, as Your Honours now know, as an act of terror to try and

24 to drive Muslims out of the region and that was the last thing that

25 Colonel Blaskic wanted.

Page 581

1 So that's the backdrop. That's where the story begins. What

2 actually happened in Ahmici? You now have before you evidence that allows

3 you to make a fresh assessment of whether the appellant bears criminal

4 culpability for the Ahmici massacre. Please remember, on the 27th or so

5 of January, the Vitez-Busovaca pocket had been cut off from the Kiseljak

6 pocket. That was triggered by the night-time clandestine terror acts of

7 the -- Sliskovic and his group around the 20th and 21st of January. That

8 triggered a military response. Kiseljak is cut off by the 27th of

9 January, a fact that was not unnoticed in the Hotel Vitez.

10 On the 15th of April, the HVO brigade commander, Commander Totic,

11 is kidnapped and his four bodyguards are shot dead outside Zenica. You

12 heard last week that by mid-April, both the HVO and the BH army were on

13 heightened alert for possible conflict.

14 And you saw, from Exhibit D193, that the HVO was indeed wary of an

15 escalation. And while D193 is significant, what is more significant is

16 the logic that the most vulnerable point for the Vitez-Busovaca pocket was

17 the narrowest point and the point that was adjacent to the largest Muslim

18 populations, and that was Ahmici on the north and then the corresponding

19 portions of the terrain to the south. And that is what D193 was pointing

20 out, is that this is our most vulnerable point in terms of having the

21 Vitez-Busovaca pocket cut in two.

22 You heard testimony last week that this type of manoeuvre would be

23 logical to anyone with even rudimentary military training. In this

24 context, you have the three key orders issued by Colonel Blaskic on the

25 15th of April, in the early morning of the 16th of April.

Page 582

1 The first is the preparatory order, D267, which was issued after

2 the report that Totic had been kidnapped and that terrorist attacks, if

3 you will, against HVO commanders were escalating.

4 Then D269 was issued, an order to the HVO Vitez Brigade and to the

5 Tvrtko unit, and the operative word is "blockade." This was an order to

6 blockade BH army forces in Kruscica, Vranjska, and Donja Veceriska, the

7 following morning at 5.30 a.m.

8 And then now you have Exhibit PA12, a rebuttal exhibit from the

9 Prosecutor, which is the corresponding order to the 4th Battalion of the

10 military police, telling them to block approaches to the road.

11 Were these orders implemented? Were they followed? No, they were

12 not. On the afternoon of the 15th of April, the first preparatory order,

13 D267, was completed. And the evidence is that Pasko Ljubicic set in

14 motion the gathering of his military police unit at the Bungalow later

15 that evening. But that afternoon, the unit was not told that a massacre

16 would be committed in Ahmici. That did not occur until the early morning

17 of the 16th of April.

18 Why? What happened in the intervening time? This is Exhibit 1

19 from the second Rule 115 motion, a report by the Ministry of the Interior

20 in Croatia, describing a meeting later on that night, composed of

21 Dario Kordic, Ignac Kostroman, Sliskovic, Ljubicic, Vlado Cosic, and

22 others, and at that meeting, the directive to burn Ahmici and to kill men

23 of military age was given.

24 And I think I need a short private session, Your Honour.

25 [Private session]

Page 583

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 [Open session]

23 JUDGE POCAR: We are in open session now.

24 MR. HAYMAN: Thank you, Your Honour.

25 So this is Exhibit 4 to the first Rule 115 motion. HIS and SIS

Page 584

1 concluded that Kordic and Kostroman were responsible for the crime.

2 Just to elaborate, it is important, I think, to assess what access

3 did SIS and HIS have to the relevant information? They had access to

4 people within SIS, they had access to people within the military police,

5 they had access to the wounded that had been evacuated to Split and other

6 cities in Croatia, they had access to all the documentary evidence, and

7 this is what they concluded.

8 Regrettably, they had access to far more information and relevant

9 evidence on this question than any of us ever will, and this is what they

10 concluded, at a time when there was no motive to fabricate or cover up.

11 Their motive was to give accurate information to their political leader,

12 Franjo Tudjman, and, indeed, identifying the political leadership in

13 Central Bosnia, that was a smear on President Tudjman. It was against his

14 interest to be told members of your political party, your political

15 representatives in Central Bosnia are responsible for these crimes. It

16 was not what Franjo Tudjman wanted to hear, and that lends additional

17 credibility to these findings.

18 The next question, having covered the orders: Did Colonel Blaskic

19 learn of the Ahmici crimes on the 16th of April? What was he told? Well,

20 we know that he got a written report, which is Exhibit D280. He got a

21 report late in the day on the 16th of April, from Pasko Ljubicic. This

22 was in response to his request. And this report concealed the fact that a

23 massacre had been committed in Ahmici.

24 Blaskic had no basis upon which to conclude that crimes were being

25 or had been committed in Ahmici on the 16th of April. He was in the

Page 585

1 basement of the Hotel Vitez. There was a widespread conflict throughout

2 the municipality.

3 The evidence is not controverted that from the Hotel Vitez or from

4 Vitez, for that matter, one could not discern the difference between

5 combat activities and a crime, based on smoke and noise some distance away

6 in Ahmici. That being the case, at the trial below, the Prosecutor went

7 to great lengths to try and prove that there was no armed resistance in

8 Ahmici. There were no BH army or other armed Muslim forces there. And

9 they presented Western observer evidence to that effect, that they toured

10 Ahmici later and they saw no weapons, no other evidence that there had

11 been an armed resistance. And the Trial Chamber accepted that testimony

12 and it's recounted in the judgement at paragraphs 407 to 410. We agree

13 that there were no units of the 3rd Corps in Ahmici but there was a

14 Territorial Defence unit of some 30 to 35 men, with weaponry, and

15 Your Honours heard that testimony last week from an official who was in a

16 position to know, BA5.

17 That fact can no longer be disputed.

18 Furthermore, the fact that there was a military conflict on the

19 16th of April, involving TO forces at the school in Ahmici, can no longer

20 be disputed, based on testimony Your Honours heard.

21 Furthermore, we have new evidence from the BH army itself that on

22 the 16th of April, forces were ordered to go to Ahmici. And this is

23 Exhibit 12 to the fourth Rule 115 motion, in which the 3rd Corps, on the

24 16th of April, orders a company from the 7th Muslim Mountain Brigade to go

25 to Ahmici to organise and carry out a march and arrive there to assist our

Page 586

1 forces in the defence and organise the defence.

2 This is one of the orders that we should have gotten when the

3 subpoena was issued to BH and that we only got much later, after the

4 trial.

5 We do not claim -- the Defence has never claimed that there was a

6 particular military justification to attack this TO unit in Ahmici. That

7 is not our thesis. We don't have to claim that. Colonel Blaskic did not

8 order an attack on Ahmici. But what is critical is that there was a

9 military justification to defending the Vitez-Busovaca road and that once

10 there was a conflict in Ahmici, it was absolutely normal for

11 Colonel Blaskic to believe that it was a military conflict, because there

12 were TO units in these villages, including Ahmici.

13 Did the British Battalion inform Colonel Blaskic that there were

14 crimes in Ahmici on the 16th? They did not. They went to Ahmici in their

15 Warriors and they didn't observe any massacre or comparable activity. The

16 BH army was not aware of any crimes on the 16th. And the point here is

17 that failure to prevent liability requires that the accused know that

18 there's a crime ongoing and have the opportunity to do something about it

19 and stop it, and here there can be no liability for failing to prevent or

20 stop a crime of which the accused did not have knowledge.

21 So these are the events, these are what actually happened on the

22 15th and 16th of April. The new evidence confirms this. Apart from the

23 primary evidence, the witnesses you've heard, the new primary documents,

24 the SIS and HIS investigations confirm these very events.

25 And these were important investigations. The Ahmici massacre was

Page 587

1 headline news on CNN on April 22nd, 1993. It caused an international

2 outcry. It caused a huge embarrassment for the Bosnian-Croat community,

3 and indeed for Franjo Tudjman, then-president of Croatia.

4 The investigations that were done for him were serious. It was a

5 serious issue, and all the information that you see in this regard, they

6 are not propaganda reports; they're internal, secret confidential reports

7 for the eyes of the Croatian president and other intelligence officials in

8 Mostar and in Croatia.

9 There's one document now under seal, Your Honour, that I need to

10 have a private session to discuss, and we'll need to make sure that the

11 document, when I show it, doesn't go up on the public screen. I think, in

12 reality, it may not -- it may no longer need to be under seal, but it's

13 still under seal and so I have to treat it that way.

14 JUDGE POCAR: Let's go into private session.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 588












12 Page 588 redacted, private session














Page 589

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 [Open session]

8 MR. HAYMAN: By contrast, let us look at Exhibit 13 to the first

9 Rule 115 motion. This is a SIS report concerning Ahmici, prepared on June

10 8th. This is 20 days after the report we just looked at. A mere 20 days

11 later, we have a SIS report which says what it says. It identifies the

12 military police. It identifies the Jokers. It identifies the Bungalow as

13 their location. And while it appears to, in part, be based on the

14 statement of one Zoran Krista, which we know and Your Honours know is part

15 false, part true. This individual is saying: Well, we did these things

16 only after we were provoked, or whatever. But still, the report goes on

17 to say that everyone in sight was killed, and names are identified, and

18 the unit is identified.

19 So you can contrast that with the other evidence and understand

20 that this was prepared by the Department of Defence. This is a different

21 document, not prepared by the author of the other document, which tells

22 you that at this point in time, you have different lines within that

23 organisation conducting themselves very, very differently.

24 Colonel Blaskic did not receive this report. He never got any of

25 the SIS or HIS reports, and you can look at all the cover pages and

Page 590

1 transmittals showing they were not for him. They were for SIS and HIS in

2 Mostar and for President Tudjman in Zagreb.

3 The same is true if you look at the first exhibit to the first

4 Rule 115 motion, the November 26 SIS report. This is the second page.

5 The judgement, as I've recounted, and this is paragraph 493 of the

6 judgement, found that the accused has not shown that he made any sustained

7 efforts to recover the report before appearing before the Tribunal. This

8 is the report we're discussing, the first exhibit to the first Rule 115

9 motion: "Although that report was the item of evidence most likely to

10 exonerate him, consequently these findings cast doubt on the very

11 existence of such a report."

12 And indeed, this is the report that the Trial Chamber so

13 desperately wanted to see, and if you look at the guts of that report,

14 prepared on the 26th of November, you can see that SIS has developed

15 considerably more information by now and the report not only identifies

16 the Jokers; it identifies the command of the Jokers, Vlado Cosic, and

17 Pasko Ljubicic, and identifies other individuals involved in the crimes

18 within the Jokers unit and Cicko, who was added to the force that attacked

19 Ahmici on the 16th of April.

20 And I've already told you that a few months later, on 17 February,

21 in the 1994 HIS report, prepared for President Tudjman, the Croatian

22 Intelligence Service reported that Dario Kordic and Ignac Kostroman are

23 responsible for the crime in Ahmici.

24 Now I'd like to turn to the judgement and what the judgement found

25 concerning Ahmici, and what --

Page 591

1 JUDGE POCAR: Mr. Hayman, --

2 MR. HAYMAN: Yes, Your Honour.

3 JUDGE POCAR: I think we should approach a break. I don't know

4 whether before turning to the judgement this is an appropriate moment to

5 break or not. It depends on --

6 MR. HAYMAN: I'm right at a transition point, so this would be a

7 logical point to break.

8 JUDGE POCAR: So let's break now for half an hour, according to

9 our schedule, and we'll reconvene at 11.15.

10 --- Recess taken at 10.43 a.m.

11 --- On resuming at 11.17 a.m.

12 JUDGE POCAR: Please be seated.

13 We will now resume. Mr. Hayman, you may continue your pleading.

14 MR. HAYMAN: Thank you, Your Honour.

15 I was turning from a recounting of the events in Ahmici to what

16 did the Trial Chamber find regarding Ahmici, and how might Your Honours go

17 about an analysing those findings in light of the new evidence.

18 The starting point was set out in 437 of the judgement, which

19 found that the order, D269, was an order to attack. It found that on the

20 face of the order, it was an order to attack. It did not find that the

21 order was code language for an attack or a wink and a nod order for an

22 attack. It found within the four corners of the document, it was an order

23 to attack the village of Ahmici.

24 That is contrary, Your Honours, to the new evidence. An indeed,

25 there's an absence of evidence at trial that this was an order to attack.

Page 592

1 The Prosecutor chose at trial not to bring a military expert, or anyone

2 with military training, to the trial, and ask them whether D269 was a

3 legal order or an order to attack a civilian population and thus an

4 illegal order. They consciously did not do that. That was not part of

5 their evidence. And so it is an unusual situation that now we find

6 ourselves with this statement in the judgement, nonetheless, and very

7 fortunate that we've had an opportunity to augment the record for

8 Your Honours, because now Your Honours have had more of an advocacy

9 proceeding, if you will, with respect to this key pivotal issue.

10 I also note, I'm greatly looking forward to hearing what my

11 learned colleagues have to say about this order. I note last week they

12 did not question any of the witnesses who testified about the legality of

13 these orders, such as BA1, or BA3. They did not cross-examine them at all

14 as to the legality and proprietariness [sic] of D269 or D267 or PA12.

15 In light of the new evidence, I think that these orders -- the

16 proper interpretation of these orders is pretty clear. First of all, this

17 again is D269, with the addressee box blown up. These are the units to

18 whom this order was addressed. This was not an order to the military

19 police. The Trial Chamber found that this was an order to the military

20 police to attack the civilian population of Ahmici. So the first

21 important point is: It was not an order to the military police, period,

22 full stop.

23 Now, secondly, D269 is not an order to attack. It is a defensive

24 order written in standard military terminology, which you heard last week

25 was perfectly clear on the face of the document.

Page 593

1 At this point, with the new evidence, we submit, even under a

2 "reasonable tribunal of fact" standard, that no such tribunal could

3 conclude either that D269 was an order to the military police or that it

4 was an order to attack or that it was an order to attack civilians. All

5 three of those premises are in error.

6 And as Your Honours will see, and as my colleague has pointed out,

7 if you look at the left-hand side of this order, which I'm afraid I can't

8 move this box right now, but this is an order to the Vitez Brigade and the

9 Tvrtko unit to block Kruscica, Vranjska, and Donja Veceriska, which are to

10 the south and on the other side of the communication line from Ahmici.

11 It's a different geographic area. So different units, different

12 geographic area, different mission, et cetera.

13 So what did the -- how did the Trial Chamber get there? What is

14 it that they found in order to come to the conclusion that they came?

15 They said there were three types of forces in Ahmici: The Domobrani, or

16 Home Guard, the military police, and the Vitez Brigade. The evidence is

17 very clear that the military police were in Ahmici. The evidence is,

18 however, that neither the home guard nor the Vitez Brigade participated in

19 the attack on Ahmici. The Domobrani is something like a system of

20 reserves, and so people are signed up for it. And the Trial Chamber found

21 that because the reserves were within the military chain -- the military

22 hierarchy, that they must have participated and Blaskic must have ordered

23 them to attack civilians. There are no orders to the Domobrani in

24 connection with Ahmici, much less any orders to attack civilians.

25 With respect to the military police, we absolutely agree; they

Page 594

1 were in Ahmici. Where we differ with the Trial Chamber is that the

2 appellant had neither -- did not have effective control over the Jokers,

3 and he certainly did not have sole effective control, as the Trial Chamber

4 found, via the Baggesen testimony.

5 You'll recall last week Mr. Watkins testified that it was the

6 conventional wisdom and belief within the ECMM that the Jokers were under

7 the effective control of Dario Kordic, transcript appellate hearing 294.

8 And now I need a very brief private session. I apologise. This

9 is an area where I'm going to have to jump back and forth a couple of

10 times, and we might as well get started.

11 [Private session]

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

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25 (redacted)

Page 595

1 [Open session]

2 JUDGE POCAR: We are in open session. Fine.

3 MR. HAYMAN: We submit at base, however, that the issue with

4 respect to Ahmici of whether at some theoretical level Colonel Blaskic had

5 effective control over the Jokers, it's really moot, because we now have

6 direct evidence as to who ordered the crime. We don't have to make

7 guesstimates based on: There's only one chain of command and therefore if

8 they're under Blaskic's chain of command, Blaskic must have ordered the

9 crime. You have direct evidence that the crime was committed -- was

10 ordered, excuse me, by someone else, and you have extensive evidence

11 concerning the ability and the power of that other authority, to use the

12 Jokers, to order them into combat, and to direct them to commit criminal

13 activity against Muslim civilians.

14 You also have the SIS and HIS reports, which inculpate Kordic,

15 Sliskovic, Ljubicic, and Cosic for the massacre and exonerate Blaskic.

16 And I note in that regard that at the time these reports were written,

17 President Tudjman had absolute power in Croatia. His son,

18 Miroslav Tudjman, was the head of the Croatian Intelligence Service, HIS,

19 or HIS. So some of the reports that you have are reports from the son to

20 the absolute political authority in Croatia, delivering bad news, news

21 that had to be in the view of those preparing these reports, absolutely

22 rock solid.

23 What about the Trial Chamber's reliance on Mr. Baggesen's

24 testimony? If you look at his testimony, he was too an ECMM monitor. He

25 was in Central Bosnia for about two months and 19 days. He did not speak

Page 596

1 the language. And when giving his opinion that only Colonel Blaskic could

2 control the military police, he gave one example, and only one example, to

3 support his opinion. And his example was that when he was arrested, along

4 with other individuals, by the military police, that it was only

5 Colonel Blaskic that could free the captives from the military police.

6 And now I must go back into private session to elaborate, please.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

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Page 597












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Page 598

1 (redacted)

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8 (redacted)

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14 (redacted)

15 [Open session]

16 JUDGE POCAR: So we are now in open session.

17 MR. HAYMAN: So as we are discussing, the Trial Chamber found that

18 the Vitez Brigade was in Ahmici on the 16th.

19 Now we know that is not correct. In part, the Trial Chamber

20 relied on Exhibit D269, as an order to attack Ahmici. And it is true D269

21 is directed to the Vitez Brigade, but of course it not only does not order

22 the Vitez Brigade into Ahmici, it orders them to go somewhere else.

23 So part of the underlying error here, Your Honours, was that this

24 order was misunderstood. When properly understood it tends to prove the

25 contrary proposition to what the Trial Chamber found.

Page 599

1 And further, we know, because the Croatian Intelligence Service

2 investigated this matter, that they found and they wrote in a report to

3 Franjo Tudjman, on 21 March 1994 - and this is the 14th exhibit to the

4 first Rule 115 motion - specifically that the attack on Ahmici was carried

5 out by the Jokers, and then the individuals involved in a command position

6 are named. And then later on down the page, and this is page 2, this

7 secret intelligence report states: "It can be said with certainty that

8 Mario Cerkez was not involved in the massacre in the village of Ahmici and

9 that he had no influence on these events." Mario Cerkez, of course, was

10 the Vitez Brigade commander. This is a reference to the Vitez Brigade.

11 Now, in the appeal proceedings, it's been quite interesting. The

12 Prosecutor has largely abandoned the evidence cited by the Trial Chamber

13 in support of its position and now the Prosecutor has moved on to try and

14 develop new evidence to support the findings of the Trial Chamber below.

15 And this is Exhibit PA6, and it is one of the leading pieces of new

16 evidence that the Prosecutor is attempting to rely upon. Basically, what

17 they have argued in their papers is the Vitez Brigade had to be in Ahmici

18 because on the 16th of April - and this is a -- this is PA6 - the Vitez

19 Brigade wrote a report to the operative zone, in which it said: "Our

20 forces are advancing on Donja Veceriska and in Ahmici," while in other

21 villages there's a truce and so forth. And the Prosecutor has argued in

22 its briefs this shows the Vitez Brigade was in Ahmici. Not so fast. Not

23 so fast.

24 If you look at this report, you'll see at the top, and we've blown

25 it up, it's a report on the situation in the area of responsibility. It's

Page 600

1 not a report on the activities of the Vitez Brigade. It's a report on the

2 area of responsibility of the Vitez Brigade, which is the Vitez

3 municipality. And then if you look down at the lower portion that we've

4 enlarged, it doesn't refer to the Vitez Brigade specifically. It says

5 "our forces," referring to Croatian forces. And then it does speak to

6 Donja Veceriska, which is one of the locations where is the Vitez Brigade

7 was directed to be on the morning of the 16th. But the other places are

8 not. We know that the Vitez Brigade was not in Ahmici, Sivrino Selo, and

9 I'm not sure exactly where Vrhovine is any more, so many years have passed

10 in this case. But these are references to other Croatian forces in other

11 locations, in the area of responsibility of the Vitez Brigade, but the

12 Vitez Brigade was not everywhere, in all these places at this time, and

13 the report doesn't indicate anything of the sort.

14 Indeed, if we look at some of the other new evidence, such as the

15 14th exhibit to the second Rule 115 motion, the war diary, the war diary

16 makes clear that at 9.00, orders were given to the Vitez Brigade

17 commander, Mario Cerkez, to block the shooting on the fire station

18 building in Vitez. And that's consistent with the orders given in D269 as

19 to where the Vitez Brigade was supposed to be on the morning of the 16th.

20 There are no entries in the war diary inconsistent with these

21 propositions that the Vitez Brigade was in Vitez, Kruscica,

22 Donja Veceriska, et cetera. They were not in Ahmici.

23 And finally, I note, although we do not cite to any other

24 decisions of this Tribunal with respect to factual findings, and I'm not

25 citing here to the Kupreskic appeals judgement as a matter of precedent.

Page 601

1 I'm simply noting that their logic is rather clear and, I think, powerful,

2 that "It's difficult to accept" - and this is at paragraph 213, I

3 believe - "It is difficult to accept the suggestion that the Vitez Brigade

4 was deployed to Ahmici to participate in the attack in the early morning

5 of 16 April 1993 as a unit. The commander of the Vitez Brigade had

6 received instructions to engage in military activities in other villages

7 in the Vitez area at the relevant time."

8 So to return to the judgement and the Trial Chamber's finding at

9 paragraph 467, the judgement found, and I quote: "The planned nature and,

10 in particular, the fact that all these units acted in a perfectly

11 coordinated manner presupposes in fact that these troops were responding

12 to a single command, which accordingly could only be superior to the

13 commander of each of these units."

14 What is the Trial Chamber talking about here? They're talking

15 about having found that there were three different units in Ahmici - the

16 military police, the Vitez Brigade, and the Domobrani - that therefore,

17 because the activity was coordinated, that it had to have been commanded

18 at a level above the Vitez Brigade, above the military police, and above

19 the Home Guard.

20 Well, whether that's true or false, whether the activity, killing

21 civilians and burning houses, whether that was coordinated or not, the

22 fact is, the underlying supposition that there were three units in Ahmici

23 is wrong. The military police were in Ahmici. There was no

24 supra-coordination required. The coordination happened on the morning of

25 the 16th, when the orders to kill and to burn, to kill civilians and torch

Page 602

1 the village were given. Those were the coordinating orders, and they have

2 nothing to do with Colonel Blaskic and they had nothing to do with the

3 logic set forth in paragraph 467 of the judgement.

4 So this finding, this finding is simply irrelevant, because you

5 now know, I submit, based on the new evidence, there was one unit in

6 Ahmici.

7 Furthermore, because you have direct evidence as to who ordered

8 the crimes in Ahmici, we submit you don't have to undertake this type of

9 abstract analytical reasoning. You should go -- you should look first to

10 the direct evidence. Now, we also have given you extensive evidence that

11 Colonel Blaskic did not have effective control over the Jokers, and indeed

12 that other authorities exercised direct control over the Jokers and used

13 the Jokers for criminal purposes. But my point is, the logical nexus,

14 that because this activity was organised and because there was a single

15 command and therefore Blaskic had to order the crimes, that logical nexus

16 is broken; it does not exist any more, in light of the new evidence.

17 Finally, the Trial Chamber did cite elsewhere that because some

18 form of mortars or artillery were used prior to the actual attack on

19 civilians in Ahmici, that that indicated some high level of planning to

20 the operation. That we believe is not true, and that was made clear last

21 week. Philip Watkins testified in the hearing last week at 297 that

22 "Artillery, followed by an infantry attack, is standard military

23 practice. It would not mean that you -- because of seeing that

24 combination, you could say: Ah, this is the obvious work of a particular

25 commander."

Page 603

1 Before I leave Ahmici, before I leave the events and the

2 conviction for failure to prevent, I would like to draw your attention to

3 one other source of valuable information on this issue, and that is

4 Colonel Blaskic's state of mind when he learned there had been a massacre.

5 How did he react? Not what was written by the propaganda department six

6 months later in a magazine. How did he react, according to percipient

7 witnesses, when he was told there was a massacre? You have two important

8 pieces of evidence on that question.

9 First, the testimony of Colonel Stuart, who was the commander of

10 BritBat, and he testified that when confronted with evidence of the

11 massacre on April 22nd, he was sure that Blaskic was horrified. Those are

12 his words: Horrified. And that's in the record below. It's recounted in

13 our brief.

14 Secondly, there was a press conference on April 27th, 1993, in the

15 Lasva Valley. It was covered by local television. And I put it to you,

16 Colonel Blaskic was there. Did he use this press conference to put out

17 propaganda to suggest a cover story, or did he do something else. Well,

18 fortunately there was a witness at this press conference, a man who

19 testified at trial, a former member of parliament in the United Kingdom, a

20 former war correspondent, Martin Bell, and this is what Bell saw at that

21 press conference.

22 [Videotape played]

23 MR. HAYMAN: We need sound. Perhaps the technical booth can

24 assist us in how we can hear the testimony. It's an interesting picture,

25 but it's not that interesting. We really need the sound.

Page 604

1 Hearing no response -- well, if we unplug my laptop and turn up

2 the volume, Your Honours can hear it, but --

3 [Defence counsel confer]

4 [Appeals Chamber confers with registrar]

5 MR. HAYMAN: My only thing that concerns me is once we unplug,

6 what happens when we re-plug?

7 JUDGE POCAR: I'm told the technician is on his way.

8 MR. HAYMAN: We'll line this up, and maybe we can do it with the

9 other computer. Of course, timing the image with the sound using two

10 different computers could be tricky, but we'll come back to this point as

11 soon as the technical assistance is there. So in one way or another, I'm

12 going to play for you what Martin Bell saw at this press conference, and

13 it's very important. And after you've heard that, I think that you will

14 understand what Colonel Blaskic testified at trial, at reporter's

15 transcript 20136, which, with respect to the Danas interview, he said that

16 there was no interview, there was no correspondent that came to Central

17 Bosnia. Apparently, questions were faxed to the command. The Information

18 and Propaganda Department, IPD, filled out answers to the questions, and

19 they were mailed out, or whatever, to the journalist, and Colonel Blaskic

20 never authorised the text of the interview. You also heard Mr. Watkins

21 testify last week that that propaganda piece, those words did not sound,

22 did not convey to him as Blaskic's words, and they were entirely out of

23 character. But I think once you hear what happened at the press

24 conference, you'll be satisfied of that.

25 [Defence counsel confer]

Page 605

1 MR. HAYMAN: We're going to try again. So here we go.

2 [Videotape played]

3 "Q. Did then Colonel Blaskic addressed the subject of

4 the massacre in Ahmici at this press conference?

5 A. Yes, he did. I made some notes at the time which I,

6 with the agreement of the Court, will read. He said he was horrified. He

7 was going to do something about it, that "... a commission is being set up

8 to investigate the atrocities. Whoever did it did it in an organised,

9 systematic way. It was an organised group of people operating to a plan

10 and, therefore, controlled by someone. The culprits must be identified

11 and brought to justice." And Colonel Blaskic said he was appalled."

12 MR. HAYMAN: I don't know if the -- Your Honour, perhaps we can

13 play it again for the court reporter later, if that's acceptable. It

14 looks like she missed some pieces because it was difficult to hear because

15 of the makeshift audio.

16 But in substance, what Martin Bell said was that Colonel Blaskic,

17 he laid down the gauntlet. He said it was a shocking crime, that it was

18 organised, there were culprits, and they must be found, and he said that

19 on local television in the Lasva Valley. He laid down the gauntlet to

20 send that message to the Bosnian Croat community in the Lasva Valley. And

21 that is utterly inconsistent with the attempt of the Prosecutor to paint

22 Blaskic as someone who was making excuses and trying to promulgate a cover

23 story with respect to Ahmici.

24 Now, that exhausts the bases of liability for the attack on Ahmici

25 that are in the Trial Chamber's judgement. There are no other bases and

Page 606

1 we submit that that conviction should not be allowed to stand.

2 What about failure to punish, which has two components: Failure to

3 prevent and failure to punish. That requires separate treatment.

4 Initially, I note that a conviction for both ordering a crime and failing

5 to prevent it is internally inconsistent. And that's a problem we had at

6 trial. We never knew where the Prosecution was going, because we were

7 simultaneously having to defend: Did he order it? Did he fail to prevent

8 it? And they never committed. They never made a commitment as to those

9 inconsistent theories, despite the fact, as I'll recite later, the

10 Trial Chamber found that was a defect in the indictment and that the

11 Prosecution would bear full weight, the full consequences, if they failed

12 to cure that defect.

13 So nonetheless, we tried to defend on all fronts, as we had to,

14 and with respect to failure to prevent, I've largely addressed that. On

15 the morning of the 16th, Blaskic was in the basement of the hotel. He did

16 not have information that a crime was in progress. And that was largely

17 based, the Trial Chamber found, on the testimony from Colonel Stuart, at

18 reporter's transcript 23743, that at 10.00 a.m. on the 16th, Stuart went

19 to the Hotel Vitez and was not able to see Blaskic.

20 Well, now that we have the war diary, we know what happened at the

21 Hotel Vitez that morning, when Colonel Stuart went to try and find

22 Blaskic. Colonel Stuart was there. He was there ten minutes early, at 10

23 to 10.00, and he spoke to another member of the staff, Marko Prskalo but

24 there's no indication that he was taken into the command centre, the

25 basement where they were, rather he had some kind of an exchange with

Page 607

1 Prskalo, and they had a discussion. What was Blaskic doing at 9.50 a.m.?

2 We also know that from the war diary, and that is the 14th exhibit to the

3 Rule 115 motion, that first passage was page 73, paragraph 3. This is a

4 passage at page 72, the last paragraph. At 9.50 a.m., Blaskic was there.

5 This is a war diary of what was happening in the command post, and he was

6 on the phone with another member of the command staff, someone called

7 Batinic.

8 At 10.00, Colonel Blaskic had another call, so he went from one

9 call to the next, and at 10.00, the call was with the commander of the

10 Kiseljak Brigade. So it is true that Colonel Stuart didn't have a

11 conversation, a face-to-face with Colonel Blaskic, and the Trial Chamber

12 inferred from that Blaskic must not have been at the hotel. He was at the

13 hotel but he was tied up. They were in the middle of firefights all

14 across the Vitez municipality. So Blaskic was there, he was in the

15 basement, he was there all day, and if there's anything inconsistent with

16 that in the war diary, I'm sure we'll hear about that from the Prosecutor

17 in their argument, but there isn't, so you probably won't.

18 Could the crimes in Ahmici be observed in the Hotel Vitez?

19 There's no suggestion in the judgement that they could, and indeed, the

20 evidence in the case is, from Colonel Stuart you could not observe what

21 was going on from Vitez, and from witnesses last week, you heard that even

22 from the inside of a United Nations Warrior, an armed vehicle, looking out

23 through the little round porthole windows, you couldn't see what was going

24 on, you couldn't see that there was a massacre, that there were a large

25 number of civilian casualties, and so forth. And that is contrary to what

Page 608

1 the Court found below at paragraph 479 of the judgement.

2 Now, it's worth briefly noting that the Trial Chamber also

3 discounted the testimony of the accused when he said he didn't know there

4 was a crime being committed on the morning of the 16th because the

5 Trial Chamber found there was no BH army presence in Ahmici, and

6 therefore, his belief that there was a conflict, fighting, a military

7 conflict, was unreasonable, and they rejected it. The Prosecutor fought

8 long and hard at trial to attempt to prove that there were no BH soldiers

9 in Ahmici, and the Trial Chamber so concluded in the judgement at

10 paragraph 407.

11 You now know from the new evidence, including Witness BA5, that

12 there was a Territorial Defence unit in Ahmici. It numbered 30 to 35 men

13 and it had a significant number of rifles, although not every man had a

14 rifle, most of them did and you heard that testimony last week. And

15 indeed in respect to whether there was fighting in Ahmici, I simply refer

16 you to the testimony last week of two other witness, and I won't go into

17 private session, BA2 and BA3.

18 So that's failure to prevent. What about failure to punish?

19 [Defence counsel confer]

20 MR. HAYMAN: Before I go to failure to punish, I should point out

21 that there were no reports to Colonel Blaskic that crimes were being

22 committed on the 16th in Ahmici. And indeed, we know what the reports

23 are. I showed you one written report from Pasko Ljubicic on the afternoon

24 of the 16th. We also have reports of oral communications with

25 Pasko Ljubicic in the war diary, the first -- this is Exhibit 14 to the

Page 609

1 first -- second, excuse me, Rule 115 motion. The first contact was at

2 11.42 a.m. on the 16th. It was a telephonic contact from Pasko Ljubicic

3 and he basically said we're in a firefight. No information about any

4 crimes, no information about the destruction of civilian dwellings, no

5 information about the civilian deaths. So false reports were received on

6 the 16th, both oral and written, from the military police with respect to

7 what was happening in Ahmici.

8 [Defence counsel confer]

9 MR. HAYMAN: The testimony at trial was that the massacre occurred

10 between 5.30 in the morning and 8.00. So it was over by around 8.00.

11 Now failure to punish. The Defence submits that based on the

12 newly available SIS report, you now know that there was an investigation.

13 The perpetrators were identified. That report went to the political

14 hierarchy, to political and Ministry of Defence officials in Mostar and

15 above, and we submit that that should extinguish or cut off liability of

16 the accused for failure to punish. It would be wrong to convict him for

17 failure to punish when he caused an investigation to be done, he caused

18 the perpetrators to be identified, but that information went to the

19 political and military defence hierarchy, but not to him. He didn't get

20 those reports. So he didn't have the information that they had. And

21 furthermore, an alternative basis for you to find that the appellant

22 should be acquitted of any failure to punish liability is that the

23 appellant did not have the ability to punish the military police, under

24 the relevant rules and regulations.

25 While the military police were attached to appellant on the 15th

Page 610

1 of April, in the case of an all-out attack, the authority to punish the

2 military police remained with the military police administration in

3 Mostar. And for the extensive material and evidence and the appropriate

4 time periods covered by the different military police rules, you can see

5 in our brief, footnotes 95, 108, and 109.

6 And furthermore, the new evidence, which you heard last week,

7 confirms this. Witness Watkins testified that when a unit is attached, in

8 typical military structures, the authority to discipline does not convey

9 with the attachment. It remains with the parent organisation. And I also

10 direct you to the testimony in that regard of Witness BA1.

11 There's also one other documentary piece of new evidence that

12 bears on this, and it is Exhibit 43 to the fourth Rule 115 motion. This

13 is a report to, I believe, the military police administration by the

14 commander of the -- it's a report maybe to various persons. I don't have

15 the face page in front of me, so I don't want to misstate it. But it's a

16 report from Pasko Ljubicic, the commander of the 4th Battalion, and it

17 identifies two individuals who were put into custody, and notes that the

18 conduct of the investigation is under the jurisdiction of SIS, because

19 they are members of the military police.

20 And I'm informed that this is a response to a request from

21 Colonel Blaskic, wanting to know: Are these matters being investigated

22 and the culprits prosecuted? These are -- I can't read the print, but

23 there was -- whether it was displacing Muslims from their homes or

24 property crimes, I don't know which.

25 So here the HVO did not have the authority to discipline and to do

Page 611

1 what is happening here, but SIS, which is an overarching element of the

2 HVO structure, with a separate command authority, if you will, in Mostar,

3 they had the ability to investigate and to put forward charges against

4 members of the military police.

5 Did appellant take meaningful steps to try to prevent further

6 crimes by the military police after Ahmici? Well, very significantly, the

7 record below is replete with appellant's requests that Pasko Ljubicic be

8 removed as the commander of the 4th Battalion of the military police, and

9 by August of 1993, Ljubicic was removed, (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 In addition, with respect to Ahmici itself, Blaskic did what he

14 could do identify the perpetrators. Typically, the military police

15 investigate military units that engage in wrongdoing, but here, because

16 the military police was the unit involved, they couldn't do it. The

17 regular HVO had no investigative skills. So SIS was the appropriate

18 authority. And the appellant commissioned SIS with conducting an

19 investigation, and their jurisdiction to do so is set forth in some detail

20 in footnote 137 of our appellate brief.

21 What did he do to cause a SIS investigation? And I note, while

22 we're looking at this time line, that at the time this -- he set this

23 investigation in motion, Colonel Blaskic did not know that the SIS

24 assistant in Central Bosnia, Anto Sliskovic, was involved in the crime. I

25 showed you earlier Sliskovic's report from May 15th, and you compared it

Page 612

1 with other information, and it obviously was a cover story. But Blaskic

2 didn't know at this time that Sliskovic was in fact a co-conspirator with

3 respect to the crime.

4 This sets forth part of the relevant chronology of the efforts of

5 the appellant to have the Ahmici crime investigated. The crime is on the

6 16th. On the 22nd, he learns of the massacre. On the 23rd, he wrote a

7 communication that's in the record to Colonel Stuart, proposing some kind

8 of joint investigation. But can the international community and the BH

9 army and the HVO join together to get access to resources of all those

10 entities to investigate the crime? That did not go forward. The

11 international community was very suspicious of the HVO at this time, as

12 one can appreciate.

13 So the next day, the 24th, Colonel Blaskic gave a verbal order to

14 SIS to investigate. On the 27th, as you heard, he toured part of Ahmici

15 with an armed escort and then spoke out and denounced the crime at a press

16 conference that was televised. And then on the 30th, he briefed

17 General Petkovic, his commander, in person, on the Ahmici crimes and gave

18 a second verbal order to SIS to investigate.

19 So those are the events in April. Then in May, the testimony at

20 trial was that from the 5th to the 9th of May, Colonel Blaskic continued

21 to press SIS for the results to date of the investigation, and when

22 frustrated that he wasn't getting information back from the SIS assistant,

23 on the 10th of May he issued a written order to the SIS assistant, and

24 that is Exhibit D341, which you now see before you, dated 10th of May,

25 1705 hours, order: Gather all the information and submit a report on the

Page 613

1 events that actually took place in the village of Ahmici, designating the

2 SIS assistant as responsible for this task. The deadline is 25 May 1993.

3 So that order was issued on the 10th of May, and as the deadline

4 approached, on the 21st, 22nd, and again on the 24th, Colonel Blaskic

5 continued to press SIS. And then on the 25th, he received the document

6 that you've already seen, and that is under seal, D608. And I won't

7 comment on that document, because it's under seal. I already have.

8 Then on the 28th of May, he directed a further investigation, and

9 on the 29th of May, further briefed Petkovic and asked for the removal of

10 Pasko Ljubicic and the reorganisation of the 4th Battalion of the military

11 police, in order to, among other things, remove criminal elements from

12 that formation.

13 Then, from the August to 1994 time period, we see that finally,

14 despite requests by appellant much earlier, on the 4th of August,

15 Pasko Ljubicic is replaced, and then appellant, sensing an opportunity to

16 get a more complete investigation, having removed -- having seen the

17 removal of Ljubicic, on the 17th of August, another written order was

18 issued by appellant, and that is Exhibit D343.

19 This order, also to SIS, directs a further investigation and sets

20 a deadline of the 17th of September, 1993, in paragraph 3: "When a

21 complete report must be sent to me in order to proceed with further

22 procedure in front of the bodies that are in charge." That's a reference

23 to he wants a report to submit to the military prosecutor's office so that

24 charges can be brought against the responsible individuals.

25 Mr. Sliskovic, apparently, was still not very eager to conduct

Page 614

1 this further investigation as you can imagine, and on the 7th of

2 September, he got a short extension to the 30th, for his report, but on

3 the 30th, predictably, no report is produced to Colonel Blaskic, and

4 instead, the appellant is informed by Sliskovic that the report was done,

5 but it was forwarded directly to SIS in Mostar, and the investigation was

6 no longer Blaskic's concern.

7 We also know that on the 25th of April, SIS officials from Mostar

8 visited Central Bosnia for purposes of conducting an Ahmici investigation.

9 That was testimony from an EC monitor at transcript 10168. And then

10 further, we know that on the 26th of November, you have seen the

11 investigative report of SIS, which was not sent to the appellant but was

12 written by SIS in Mostar, and then even later is forwarded to HIS in

13 Mostar, the 15th of March, 1994.

14 So given all these facts, these efforts, does the evidence support

15 the conviction of appellant for failing to make reasonable efforts to

16 cause an investigation into Ahmici and the prosecution of the

17 perpetrators? We submit no. No reasonable tribunal of fact could so

18 find, even if that is the standard. Blaskic did direct an investigation.

19 He did cause the investigation. He diligently pursued it. That

20 investigation uncovered the participants, including the commanders,

21 Pasko Ljubicic and Vlado Cosic. With that information, the military

22 police administration and the Ministry of Defence in Mostar, they were in

23 a perfect position to commence prosecutions of these individuals. And it

24 should have happened. It should have happened in November of 1993, if not

25 before. The fact that it didn't is not the appellant's fault. He didn't

Page 615

1 even have the reports that named these individuals. And yet he was

2 convicted for failing to pursue an investigation of the perpetrators. He

3 is not criminally responsible for the cover-up that was perpetrated by the

4 local SIS authorities in Central Bosnia, and then ultimately by political

5 authorities in Mostar and elsewhere.

6 Indeed, I haven't scoured the public record, but I don't know of

7 any other Bosnian Croat official that condemned the Ahmici massacre in the

8 way that Colonel Blaskic did at the press conference, according to

9 Martin Bell, on the 27th of April, 1993. I didn't -- I haven't seen that

10 in any press releases or statements from any Bosnian Croat officials in

11 Central Bosnia, in Mostar, or elsewhere in Herzegovina. He's the only one

12 that spoke out and said this was wrong, it was organised, and the culprits

13 must be pursued and punished. And yet he's the one, he's the one who was

14 convicted for failing to try and bring about an effective investigation

15 and prosecution of the culprits.

16 That concludes my comments on Ahmici, and if there's no inquiries

17 from the Court, I will move on to other parts of the Vitez municipality.

18 First, Stari Vitez. The Trial Chamber concluded that there were

19 crimes in Stari Vitez on the 16th of April, that some houses were looted

20 and torched, and that several cafes near the yellow building were looted

21 and torched, burned. That's in paragraph 499. There were no criminal

22 orders by the appellant to commit crimes in Vitez on the 16th. The Trial

23 Chamber reasoned that because appellant gave an order for military action

24 on the 16th, and because crimes were committed during that action, he was

25 responsible.

Page 616

1 They also dismissed our arguments that the appellant's orders were

2 defensive and legal, and the Trial Chamber found that there were no

3 reports, and I quote, "of any military victims or the presence of soldiers

4 from the BH army in Stari Vitez." That's paragraph 509. And they found

5 in the same paragraph that the Muslim military in Stari Vitez did not put

6 up any defence on the 16th of April.

7 We continue to maintain, as we have for many years, that the

8 appellant ordered lawful defensive military action --

9 [Appeals Chamber confers]

10 JUDGE POCAR: Sorry, Mr. Hayman. I understand the interpreters

11 may be have some difficulty in following you. You are going perhaps too

12 quickly.

13 MR. HAYMAN: My apologies.

14 The appellant continues to maintain that he gave defensive orders

15 on the 16th. They were legal. He never ordered any crimes against

16 civilians in Stari Vitez and that his orders are in the record, D267 and

17 D269. If you find he did not order an attack on Stari Vitez, then there

18 could be no basis for liability for any crimes that followed, based on an

19 order for an attack. If he did order, if you find that he did at some

20 point order an attack on military targets in Stari Vitez, but he did not

21 target civilians, and the attack was proportionate, then there also could

22 be no criminal liability, so long as there was a genuine military target

23 in Stari Vitez.

24 Was there? Well, first, you have the orders, and I won't belabour

25 the fact that there were no orders to attack Stari Vitez, much less to

Page 617

1 attack civilians. But let's go back to: Was Stari Vitez a legitimate

2 military target? And was the HVO military activity on that day, the 16th

3 of April, proportionate to that objective?

4 This is paragraph 509 from the judgement, where the Court found

5 there were no military installations in Stari Vitez and there were no

6 reports or any military victims or the presence of soldiers from the army.

7 That finding is clearly erroneous in light of the new evidence.

8 Witness BA5 testified last week, and that was an individual in a position

9 to know what military forces on the BH army side were in Stari Vitez,

10 that's where this individual was, that by the 16th of April, the BH army

11 and the Territorial Defence had approximately 220 to 280 soldiers in

12 Stari Vitez. That's at transcript 514. 80 to 100 men of that group were

13 part of a sabotage platoon, transcript 510. They had 220 rifles, four

14 mortars, two machine-guns, one sniper, and ten M-48 rifles, transcript

15 514. And indeed, the Territorial Defence headquarters was there.

16 This evidence is confirmed by other new evidence. For example,

17 Exhibit 22 to the fourth Rule 115 motion is a BH army report which

18 recounts that in Stari Vitez, defence is being conducted by the

19 anti-sabotage department of Vitez, about 150 soldiers and approximately 50

20 military policemen. So that's about 200 men, and that's roughly

21 consistent with BA5's estimate of 220 to 280 men.

22 This report is from the 17th of April.

23 In addition, Exhibit 23 to the fourth Rule 115 motion is a BH army

24 report from the 19th of April, in which it states that by this time, a

25 circular defence has been set up in the old part of the town of Vitez and

Page 618

1 our units successfully beat back the enemy's infantry attacks several

2 times. And that is indeed true. Stari Vitez was successfully defended by

3 the BH forces located there between the 16th and the 19th of April. If

4 there was no defence, then the attacking HVO forces would have just gone

5 in and taken it over. They didn't. The enclave was there for the whole

6 war. And this report confirms that there was -- not only was there a

7 military presence on the part of the BH forces in Stari Vitez, but they

8 were victorious.

9 And then finally, we have Exhibit 4 - excuse me - Exhibit 25 to

10 the fourth Rule 115 motion, a report from 18 April 1993, which indicates

11 that a unit overran the fire station in Vitez and that the enemy had heavy

12 losses. Although I'll have to study that further, Your Honours, to see

13 where that is in relation to the line around Stari Vitez. We'll come back

14 in our argument to you, if that needs to be further clarified. I need to

15 see a map of exactly where the fire station is.

16 When joined with the evidence at trial, we submit the conclusion

17 that Stari Vitez was a legitimate military target is indisputable. The

18 Hotel Vitez was about a hundred metres from the confrontation line.

19 That's well within range of snipers, or these M-48 rifles that you heard

20 about, not to mention mortars and so forth.

21 We understand why the Trial Chamber found that appellant was

22 responsible for this collateral damage in Stari Vitez. The Trial Chamber

23 believed that Blaskic had ordered an attack on Ahmici, and the

24 Trial Chamber believed that there was no BH army presence in Stari Vitez.

25 And it's not a long leap to then conclude that appellant was responsible

Page 619

1 for civilian casualties in Stari Vitez, but in fact neither of the

2 predicate assumptions were true, and the conclusion is also not true.

3 What about proportionality? Military action is lawful if it has a

4 military objective, and unreasonably disproportionate harm to civilians is

5 avoided. With respect to Stari Vitez, the judgement contains no analysis

6 of proportionality. The new evidence clearly indicates that the military

7 activity in and around Stari Vitez was proportionate. BA5 testified that

8 the BH troops in Stari Vitez were quartered in private residences and they

9 used the houses at the beginning of the conflict to conduct their defence.

10 They had not yet dug trenches, so they used houses. They got in windows

11 and shot out of houses and those houses became military objects used for

12 part of the defence.

13 Further, you also were told by BA5, at the transcript 515 last

14 week, that on the 16th of April, whereas three BH army soldiers were

15 killed, indicating military conflict, no civilians were killed. There

16 were only lightly wounded civilians, approximately 10 to 20. And that

17 also appears at the transcript at 515, lines 19 to 21.

18 If you contrast that with the casualties, for example, on the part

19 of the Vitezovi, you know from Exhibit 88 to the first Rule 115 motion

20 that three Vitezovi were killed, three seriously wounded, and ten lightly

21 wounded, in the conflict in Stari Vitez.

22 So the picture that these documents paint, as well as the witness

23 testimony, is there was a military conflict. There were military

24 casualties on both sides.

25 Even if you find that the military activity caused

Page 620

1 disproportionate civilians casualties in Stari Vitez on the 16th of April,

2 we submit that no reasonable trier of fact could convict the appellant for

3 those acts.

4 How did the Trial Chamber get there? The Trial Chamber inferred

5 that appellant must have ordered an attack on civilians because the action

6 was well organised and used military tactics, such as an artillery attack

7 followed by infantry. That's at paragraphs 503 and 504 of the judgement.

8 As Mr. Watkins testified last week, the use of mortars, followed

9 by infantry, or artillery followed by infantry, is simply evidence of

10 standard military tactics. There is no causal connection between any

11 order given by the appellant and any crimes that occurred in Stari Vitez.

12 And that concludes my remarks on Stari Vitez with respect to the 16th.

13 I will now go to the 18th, and the tanker bomb. There's been a

14 lot of discussion in the briefs about whether the tanker bomb, was it

15 petrol, was it explosives? We submit to you that's not the real issue.

16 The real issue is who did it and at whose direction? Because quite

17 frankly there was plenty of petrol around and there were plenty of

18 explosives around, as I will indicate from the record in the case. But

19 you have heard, and indeed it was not disputed below, that the Vitezovi

20 carried out the truck bomb. The Prosecutor conceded that at trial,

21 reporter's transcript 24664.

22 Now, you have a wealth of evidence before you, indicating that the

23 Vitezovi basically did what they wanted. If they preferred -- they

24 initiated their own actions at times, and if they didn't want to follow

25 instructions from appellant, they did not. And I'll get to that body of

Page 621

1 evidence in a bit.

2 But first: The Trial Chamber found that appellant was the only

3 one empowered to authorise the use of the assets and get the quantity of

4 explosives necessary to carry out the truck bombing. Paragraph 530. You

5 heard last week from BA5 that the head of the Vitezovi, Darko Kraljevic,

6 personally selected the driver, the poor individual who was apparently

7 handcuffed to the steering wheel in the tanker and who lost his life in

8 the truck bomb.

9 What else do we have, though? Do we have any more new evidence?

10 We have one piece of trial evidence and one piece of new evidence that

11 bears directly on whether the operative zone command had knowledge in

12 advance that there was going to be a truck bombing. The first of these

13 exhibits is D304, an operative report relating to the day of the truck

14 bomb, indicating that at about half past 1700 hours, there was a terrible

15 explosion and we don't know what it is. They're speculating that it's a

16 grenade, et cetera. That report is confirmed by the war diary, Exhibit 14

17 to the second Rule 115 motion, when at about the same time, 1720, they

18 actually thought in the operative zone that the headquarters had been hit

19 by an artillery shell because of the violent explosion that they felt.

20 There was an explosion. It was not an artillery shell. It was

21 the truck bomb.

22 So we submit to you there's no basis upon which to infer in any

23 way that Colonel Blaskic ordered this terrorist criminal act. But assume

24 otherwise. We don't think you should, but there's been a lot of

25 discussion about petrol and explosives, so I can't leave it alone at this

Page 622

1 stage of the case. There's plenty of evidence that the Vitezovi, they had

2 access to not only petrol, they had lots of access to explosives. If you

3 look at Prosecution Exhibit 242, an ECMM report, at page 29, the author of

4 that report noted that in Vitez there is an explosives factory and every

5 tenth man has too much explosives that he has taken. Meaning that

6 explosives were commonly available among the population. And this is

7 confirmed in Exhibit 10 to the first Rule 115 motion, which is a HIS

8 report to President Tudjman, talking about criminal activities and the

9 black market trading of nitroglycerin from the explosives factory in

10 Vitez, as well as Exhibit 31 to the fourth Rule 115 motion, which is a 1

11 July 1993 SIS report, which specifically links Darko Kraljevic of the

12 Vitezovi to the black market trade in nitroglycerin, et cetera, from the

13 explosives factory in Vitez. So the criminal element in Vitez had access

14 to these explosives, and what the Trial Chamber did was they inferred,

15 well, because this was a big explosion, Colonel Blaskic must have been

16 responsible, because who else had explosives? Well, everybody had

17 explosives, so that logic is not logic that a reasonable tribunal could

18 follow and we urge Your Honours to review that material, because we

19 believe you will reach that conclusion.

20 Now, generally speaking, this is a logical time for me to address

21 whether appellant had effective control over the Vitezovi or whether he

22 did not.

23 Part of the logic of the Trial Chamber below was that it believed

24 appellant had effective control, and therefore he must have ordered the

25 truck bomb. You heard last week, from Witness BA5, that Darko Kraljevic

Page 623

1 was "frequently out of control." And that it "it would be very difficult"

2 to issue orders and to control Kraljevic. That was at appellate hearing

3 transcript 543 and 544.

4 If we could go into private session for about 20 seconds. I have

5 one additional item of evidence, Your Honour.

6 [Private session]

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 [Open session]

19 JUDGE POCAR: So we are back in open session.

20 MR. HAYMAN: Thank you, Your Honour.

21 Now, the Prosecutor certainly they've cited in their briefs

22 extensively, and they'll probably show it to you later today or tomorrow,

23 they'll show you the January 1993 order from a higher authority in Mostar,

24 subordinating the Vitezovi to Colonel Blaskic and the operative zone.

25 There is such a document. What I want to call your attention to now is

Page 624

1 another document, Exhibit 96 to the first Rule 115 motion, in which

2 Colonel Blaskic wrote to the head of the Department of Defence,

3 personally, complaining that this unit, which supposedly has been

4 subordinated to him, has seized a gas station and is selling petrol for

5 their own profit, and he, Colonel Blaskic, is unable to do anything about

6 it. He's powerless. And he's appealing to the Ministry of Defence to

7 intervene because, and using his own words, paragraph 5, "because the

8 Vitezovi commander, Darko Kraljevic, is directly subordinated to you,"

9 referencing the head of the Defence department in Mostar.

10 This establishes that even when there was subordination, de jure

11 subordination, there was not de facto effective control. If Blaskic had

12 effective control over the Vitezovi, he would have issued an order to

13 Kraljevic saying: Turn the gas station over to the proper military

14 authorities so that the gasoline can be accounted for, in accordance with

15 military regulations.

16 But instead, he has to beg the Ministry of Defence in Mostar to

17 intervene because Kraljevic obviously is utterly disregarding Blaskic's

18 authority.

19 And indeed, we see again in the reply from the Ministry of

20 Defence, and this is PA26. This is a rebuttal Exhibit from the

21 Prosecutor. It's another order from the assistant chief of the Main

22 Staff, saying again the Vitezovi shall be subordinated. Why did he have

23 to repeat it? He had to repeat it because there wasn't effective control,

24 even though there had already been a subordination order.

25 And I also direct you, in regards to this issue, to the testimony

Page 625

1 of Witness BA1, at the hearing last week, transcript page 201. I won't go

2 into private session, to save time.

3 [Defence counsel confer]

4 MR. HAYMAN: Indeed, there are intelligence reports which indicate

5 not only a lack of effective control, but that the Vitezovi commander,

6 Darko Kraljevic, was actively plotting to eliminate Colonel Blaskic and

7 take over his position during relevant periods of time. And this exhibit

8 is Exhibit 4 to the Rule 115 motion, an intelligence report, which

9 documents exactly that, that Darko Kraljevic, who was, we heard from

10 witnesses, he was a drug addict, he was an alcoholic, he was an unstable

11 personality, and he was plotting to get rid of Colonel Blaskic and take

12 over his position.

13 So all of this evidence is inconsistent with the concept that

14 appellant had effective control over the Vitezovi.

15 I also note that with respect to the truck bomb and the Vitezovi,

16 despite the de jure subordination, appellant did not have the authority to

17 punish or discipline the Vitezovi, and thus it's in the record that

18 appellant raised the truck bomb with his military superiors and asked that

19 it be investigated and that the Vitezovi be held accountable for that

20 event.

21 Now I will go, with your leave, to the 18th of July, in

22 Stari Vitez, and I will leave the truck bomb.

23 JUDGE SCHOMBURG: You invited kindly the Bench to ask a question

24 at the appropriate time, that the issues stay in context. Is it your

25 intention to address the conclusion found by the Trial Chamber in

Page 626

1 paragraph 531, last sentence, "At the very least, he took no step to

2 prevent these crimes being committed or to punish the perpetrators." In

3 French, the word these or those crimes do not exist, prevent crimes being

4 committed or punish the perpetrators, in general. He took no step.

5 MR. HAYMAN: Did you say paragraph 571?


7 MR. HAYMAN: The evidence, Your Honours, on that issue is broken

8 down into three components. The 16th of April, the truck bomb on the 18th

9 of April, and the 18 July 1993 attack on Stari Vitez. With respect to the

10 16th of April, we've gone through the war diary, we've gone through the

11 reports. There were no reports that Colonel Blaskic received on the 16th

12 that crimes were being committed in Vitez. He didn't learn about a crime

13 that he could then act upon to prevent.

14 With respect to the truck bomb, if you look at the war diary, the

15 operative zone command thought they were being shelled. They heard

16 this -- They felt this very great explosion at about 20 minutes after

17 5.00, and they thought they were actually getting an incoming artillery

18 shell. That event was over in an instant. So when they learned there had

19 been an explosion, the event was over and there was no opportunity to

20 prevent it. With respect to punishment, the testimony from

21 Colonel Blaskic's military superiors, and I believe we showed an exhibit

22 last week to a witness on this, was that Colonel Blaskic raised the truck

23 bomb with his military superiors, indicated he believed the Vitezovi were

24 responsible, and asked that there be an investigation, and indeed the

25 superior confirmed in testimony that there had been an investigation

Page 627

1 initiated. I note that because the Vitezovi were an attached or

2 subordinated unit, the appellant did not have the authority himself to

3 either discipline them - that follows from the lack of line authority - in

4 no instance did he have the authority to initiate a prosecution, only the

5 military prosecutor could do that. But even as to discipline, the

6 discipline authority it remained with the Ministry of Defence and that is

7 why appellant raised the truck bomb with the Ministry of Defence officials

8 through the Main Staff, his superior, so that an investigation could be

9 conducted.

10 And now I'd like to turn to the 18th of July and address that

11 question in that context.

12 It is appellant's position that he did not order an attack on the

13 18th of July on Stari Vitez, but at the end of the day, that question is

14 immaterial, because the evidence is very compelling, one, that Stari Vitez

15 was a legitimate military target. So if an attack did occur, the fact of

16 an attack was not illegal. And number two, there were no civilian

17 casualties in Stari Vitez on the 18th of July. And I'll point you to the

18 record in that regard.

19 The Trial Chamber, in paragraph 512, found that the 18th of July

20 attack was illegal because the HVO made use of homemade mortar shells,

21 called "babies," which targeted civilian targets and killed and injured

22 many Muslim civilians. You heard from the testimony last week, from BA5,

23 that, first of all, Stari Vitez had a significant armed formation, 220 to

24 280 men; that two, after the battle on the 18th of July, there were 26

25 dead HVO which the BH forces returned to the HVO commanders, and that

Page 628

1 there were more that lay dead in the field during the summer, attracting

2 the crows; and that in contrast, there were no BH army soldiers who were

3 killed during the attack, and only 15 were wounded. Those facts are

4 provided in the transcript of last week's hearing at 518.

5 Also at 518 to 519, witness BA5 explained that there were no

6 civilians killed during the 18 July attack and indeed only a small number

7 of civilians were lightly injured because by this time they had basements

8 and they had dugouts so the civilian population could seek shelter during

9 military conflicts.

10 Further, with respect to the Trial Chamber's finding that houses

11 were destroyed during this attack and therefore it must have been an

12 illegal attack, Witness BA5 also explained, in the transcript at 545, that

13 by July, Stari Vitez was heavily fortified with a network of trenches and

14 that the trenches actually went in between civilian structures. This was

15 a small area, 500 metres by 600 metres, per Witness BA5. The trenches

16 were in between houses. The BH soldiers were housed in houses. They

17 didn't have barracks. They used houses as their barracks. And in that

18 environment, we submit, if civilian structures are damaged during a

19 military conflict, that is not illegal; that is not improper. If you have

20 houses next to fortifications, if you have BH soldiers housed in homes,

21 then those are not civilian structures per se, and it is not

22 disproportionate if houses in that context are damaged.

23 I also note that there were something on the order of 1.200

24 civilians living in Stari Vitez at the time, and the fact that no

25 civilians were seriously injured in this attack speaks volumes.

Page 629

1 So what about the Trial Chamber's conclusion that the use of

2 homemade mortars or bebes was illegal? Well, first of all, the finding

3 that there was loss of civilian life is not correct. BA5 spoke to that.

4 Secondly, was there substantial damage to civilian structures and was that

5 improper? I've talked about where the houses were. But moreover, the use

6 of imprecise weapons, such as a homemade mortar, is not evidence of intent

7 to harm civilians. The fact is, both sides used homemade weapons because

8 at times in the conflict that's all they had. Obviously if you're

9 encircled, resupply is a major problem. We note in the judgement that at

10 554 and 555, the Trial Chamber recognised that these same homemade mortars

11 were used in the military conflict at Grbavica in September, and yet

12 concluded that that combat operation was lawful.

13 The fact is, most weapons in even the modern army's arsenal are

14 imprecise. There are laser-guided weapons. That's less than 1 per cent

15 of the weaponry that is out there. And to say that imprecise weapons are

16 illegal per se, as the Trial Chamber suggested, would be to say that

17 carpet bombing or other common routine military tactics are illegal.

18 So with respect to failure to prevent and failure to punish

19 liability for the 18th of July, our position is there was no crime on the

20 18th of July. There was a military defeat by the HVO. They had 26-plus

21 casualties. BH army had some wounded. There were no civilian casualties.

22 There was no disproportionate damage to civilian structures.

23 And with that, I see that I had a section devoted to the very

24 question that Your Honour raised. Let me just review it and make sure

25 that I've covered those points in our colloquy.

Page 630

1 I'd like to add that in Vitez, as of April 16th, there had not

2 been a prior military conflict in Vitez. There had been conflict in

3 Kiseljak, there had been the criminal activities in January of 1993, but

4 it wasn't a situation where military units in the Vitez area had already

5 engaged in military conflict and had committed crimes such that

6 Colonel Blaskic knew, on 16th April, that units would go out and commit

7 crimes. It was the first military conflict of its type in Vitez.

8 And further, prior to the April conflict - and perhaps this is

9 more responsive to Your Honour's inquiry - prior to the conflict,

10 Colonel Blaskic had set forth a number of orders to HVO military units to

11 try and educate them and put them on notice of what was expected of them

12 in terms of adherence to the laws of war, the Geneva Conventions, and so

13 forth. And these -- some of these orders are set forth in this chart,

14 which identify, at the end, the exhibit number, D346, D347, and D208. And

15 I note that there really is -- I saw in -- well, strike that. Withdrawn.

16 So here are three orders on this slide, and then there are

17 additional orders recounted on a second slide, later in time. 13th

18 February and 17th March, 1993, which is an order to remove any person

19 inclined towards destructive and criminal conduct, take away their weapons

20 and take them out of armed units.

21 So all those orders are before the April conflict, which is

22 relevant, we submit, to the issue of taking reasonable steps to prevent

23 crimes.

24 And I also note that in the war diary, on the morning -- at some

25 point in the morning of the 16th, there's a notation that Kraljevic, of

Page 631

1 the Vitezovi Brigade, he called in, and appellant specifically directed

2 him: Leave the women and children alone. And I'm not -- I can't recall,

3 as I sit here, any evidence of harm to women and children in Stari Vitez

4 that morning. Hang on.

5 [Defence counsel confer]

6 MR. HAYMAN: The inquiry is in the war diary, Exhibit 14 to the

7 second Rule 115 motion, at 1741 hours. So at 5.41 in the afternoon, there

8 was this contact, and Colonel Blaskic underscored: "Leave the women and

9 children alone."

10 JUDGE POCAR: Mr. Hayman, I think we have to adjourn now, unless

11 you have a few words to add, but if not, I would prefer to adjourn now and

12 you have more time in the afternoon, of course.

13 MR. HAYMAN: That would be fine. I'm about two-thirds through my

14 remarks, and then Mr. Nobilo, I expect, has about 45 minutes of remarks.

15 So we appear to be on schedule, and I would welcome a break. Thank you.

16 JUDGE POCAR: So we'll break now and reconvene at 2.15. May I,

17 before breaking, ask General Blaskic how he feels. Can we continue at

18 2.15 in the afternoon?

19 THE APPELLANT: [Interpretation] Thank you, Mr. President. I feel

20 tired, but I believe that we can continue in the afternoon. I am still

21 able to follow.

22 JUDGE POCAR: I thank you, Mr. Blaskic. So we break now and we

23 resume at 2.15.

24 --- Luncheon recess taken at 12.49 p.m.

25 --- On resuming at 2.18 p.m.

Page 632

1 JUDGE POCAR: Please be seated.

2 So we are now resuming our hearing, and I give the floor again to

3 the Defence, to continue and conclude their submissions.

4 MR. HAYMAN: Thank you, Your Honour, and we are getting there, I

5 can assure you, in terms of concluding. First, I think the technical

6 difficulties have been resolved and I'd like to try and play the clip of

7 Martin Bell relating what he heard at the press conference on April 27th,

8 so that it can be in the record completely.

9 [Videotape played]

10 "Q. Did then Colonel Blaskic address the subject of the

11 massacre in Ahmici at this press conference?

12 A. Yes he did. I made some notes at the time which I,

13 with the agreement of the Court, will read. He said he was horrified, he

14 was going to do something about it, that '... a commission is being set up

15 to investigate the atrocities. Whoever did it, did it in an organised,

16 systematic way. It was an organised group of people operating to a plan

17 and therefore controlled by someone. The culprits must be identified and

18 brought to justice,' and Colonel Blaskic said he was appalled."

19 The reference to a commission there is a reference to the written

20 request that the appellant wrote to BritBat, UNPROFOR, on either the 23rd

21 or 24th of April, suggesting that an international -- that a joint

22 commission, including the UN, be established to investigate. So this is

23 three days, about, later. It did not come to pass, but I wanted to

24 explain that reference.

25 Now, returning very briefly to conclude failure to punish, that

Page 633

1 allegation.

2 JUDGE POCAR: Sorry, Mr. Hayman.

3 MR. HAYMAN: Yes.

4 JUDGE POCAR: Judge Weinberg would like to have the floor now.

5 JUDGE WEINBERG DE ROCA: Mr. Hayman, just to this press conference

6 of Mr. -- of Colonel Blaskic: Is there only this witness statement as to

7 the recollection of the press conference, or is there any other evidence

8 as to it?

9 MR. HAYMAN: We were never able to get a videotape of the press

10 conference, Your Honour. We tried. So the best we could do was

11 Mr. Bell's testimony. But I note - perhaps you can see it in the

12 video - he's reading from notes. He had a notebook of notes that he took

13 during the war, and so he was able to read passages straight from his

14 notes, and I believe he said they were, if not verbatim, it was very close

15 to verbatim.


17 MR. HAYMAN: So in Vitez municipality, I said earlier that the

18 record below is that the appellant did inform his military supervisors,

19 his higher-ups of the truck bomb, complained, and asked for an

20 investigation. That is found at transcript 24121 to 24122. And then

21 further, I noted that there was a structure for the investigation and

22 punishment of serious offences by the military, which was in the province

23 of the district military courts, and that legal framework is set forth at

24 pages 88 and 89 of our appellant's brief.

25 Now I will turn to the three remaining Vitez municipality

Page 634

1 locations that are in the judgement, Donja Veceriska, Gacice, and

2 Grbavica.

3 In each village, the Trial Chamber, as set forth in paragraph 562,

4 found appellant criminally liable "on the basis of his negligence." We do

5 not believe that the use of a negligence standard is an appropriate basis

6 for criminal liability under 7(1). In Donja Veceriska and Gacice, the

7 Trial Chamber found --

8 [Appeals Chamber confers]

9 JUDGE POCAR: Mr. Hayman, my colleague is drawing my attention to

10 the fact, not that you know before pleading, are you aware that the French

11 original text uses the words "dol eventuel"? Dolus eventualis.

12 MR. HAYMAN: I recall that at the time. I do not remember the

13 colloquy that we had during the trial about that French term, but we can

14 look at it overnight and perhaps be better prepared tomorrow. Dolus

15 eventualis.

16 JUDGE SCHOMBURG: If you just, for example, compare paragraph 562

17 in the English and the French version, there you will find in the English

18 version, "negligence," whereas in the French version, "dol eventuel."

19 MR. HAYMAN: Thank you, Your Honours. Let us take a look at that

20 overnight and try and refresh our recollections, because I recall dialogue

21 about that term during the trial, but we'll have to look back to remember.

22 The Trial Chamber then defined the term, and perhaps this will

23 help today, pending a further review of the French, that the appellant

24 ordered acts for which he could only reasonably have anticipated would

25 lead to a crime, 544, 561, and 562.

Page 635

1 What actually occurred in these locations? In Gacice, the

2 evidence was that the Vitezovi went into that village. In

3 Donja Veceriska, it was -- I believe there were other units there. And

4 the essence of the appellant's position is there were no orders to do

5 anything inappropriate in these villages. There were, as I believe the

6 Trial Chamber found, there were BH armed units in both villages. They

7 were legitimate military targets. That's in paragraph 543. So there were

8 legitimate military conflicts in both of these villages.

9 And then in connection with that, other things happened that the

10 Trial Chamber found were inappropriate, such as houses were burned, and

11 that sort of thing. But there was no causal nexus between those events

12 and anything directed by the appellant. So that's in essence our

13 position. And we'll take another look at dolus eventualis tonight to

14 brush up on our French.

15 Now Grbavica. Grbavica was also a situation -- this is much

16 later, in September. It's the only event in the Vitez municipality after

17 the 18th of July for which the appellant was convicted. The Trial Chamber

18 found the military conflict at Grbavica was a legitimate military

19 conflict. Grbavica was on a hill, over the road that went from Vitez to

20 Nova Bila, and because the BH army controlled this hill, they had direct

21 sniper fire on the road, and the testimony was the HVO had to actually

22 re-route the road back further to the south, to avoid this sniper fire.

23 So there was a military operation, the objective of which was to control

24 this high ground, and there was a village there, so that the road from

25 Vitez to Nova Bila could once again be used.

Page 636

1 The Trial Chamber found the military operation was appropriate,

2 legitimate, but that after combat operations were over, again based on a

3 negligence theory, and we'll look at the French in that regard, that there

4 were -- there was looting and burning in Grbavica after combat had

5 concluded. And appellant's position was and is that he was involved, he

6 did direct the military activity, the battle. When the battle was over,

7 the military moved to the new front line and security within the territory

8 was turned over to the civilian police. And I recall a video at trial of

9 people walking around an out-of-control situation where people are taking

10 things out of houses and so forth. But the combat was over. The combat

11 was over. So that is the question there, and we do not believe there's

12 any evidence that appellant directed anyone to loot or burn, or even that

13 he had control or responsibility of the town at that point, because the

14 combat was over. The military action was over.

15 The Trial Chamber also stated that appellant used forces in that

16 action that he knew had been involved in the commission of crimes. The

17 Vitezovi did not participate in Grbavica. The military police had already

18 been reorganised by September. (redacted)

19 (redacted)

20 (redacted). That's at reporter's transcript 16687,

21 16694 to 97, and 16702 to 08.

22 Now, the Busovaca municipality, briefly, then I'm going to stop,

23 my colleague is going to address Kiseljak, and then if there's any

24 remaining time, I will come back and address other miscellaneous items.

25 Busovaca, there's not a lot to talk about. The appellant was

Page 637

1 neither charged nor convicted of any criminal activity in the town of

2 Busovaca, which we believe is significant in its own right. That was

3 carved out of their case. You might ask why. We think it's pretty

4 obvious. But there were two remaining small villages for which the

5 Prosecution did put on evidence and the Trial Chamber did convict

6 appellant, the village of Loncari and the hamlet of Ocehnici. And both of

7 these were charged as events that happened at or about the time the

8 conflict in the area broke out in April; Loncari on the 17th and Ocehnici

9 on the 9th of April, both in April.

10 The Trial Chamber found that it had no evidence of illegal orders

11 related to any burning of homes or deaths of civilians in those villages.

12 That's in paragraph 589 of the judgement. But then it goes on in that

13 paragraph to state: "But then clearly, the Trial Chamber does not have

14 all the orders issued by the accused during the events."

15 So the Trial Chamber presumed that appellant was responsible,

16 based on the scale of the attacks, the timing of the attacks, and that the

17 attacks were operational -- the operational similarity of the events to

18 other HVO attacks.

19 First of all, I note that both of these events involved the

20 military police and they were both small hamlets. Ocehnici was a tiny

21 hamlet made up of 33 people, a total population of 33, some five or six

22 houses. And to suggest that these were part of a large-scale activity and

23 therefore it's a pattern from which one can infer a high-level controlling

24 authority, we believe does not hold up, given the new evidence concerning

25 the military police, the prior use of the military police by Kordic and

Page 638

1 Sliskovic for terrorist and criminal acts. One cannot infer something

2 because it happened and the military police did it that Blaskic, because

3 he had so-called effective control, he ordered it or was responsible for

4 it. That chain, that logical chain, is now broken and proof should be

5 required. There is no proof. There were no orders. These were tiny

6 hamlets, tiny hamlets, where although any loss of life that is

7 inappropriate is a tragedy still, these events were on a very, very small

8 scale, involved literally a few people and a few houses.

9 The specific evidence that we have, some of it is new. We know,

10 for example, with respect to Loncari, in the 14th exhibit to the second

11 Rule 115 motion, that at 2000 hours the Busovaca Brigade is ordered to go

12 defend Kuber. Kuber was a mountain above this entire area to the north of

13 Busovaca and it's considerably above the villages, including Loncari,

14 which are down below. This is significant because the Trial Chamber

15 believed that the Busovaca Brigade was in Loncari and therefore there

16 was -- even if the appellant didn't have effective control of the military

17 police, the Trial Chamber believed he had effective control of the

18 Busovaca Brigade, and this was an important issue.

19 So we know from the war diary that the Busovaca Brigade is sent to

20 Kuber on the 16th, and then later on on the 17th, in the same war diary,

21 at 1829, that is, about 6.30 in the evening, Kuber was lost. The HVO lost

22 their position on Kuber. Thus, the Busovaca Brigade was there during the

23 day on the 17th, and that is inconsistent with the argument that they were

24 in Loncari engaging in misconduct at that time.

25 With respect to failure to punish liability - because, as I said,

Page 639

1 everything that appellant was convicted of under 7(1), he was also

2 convicted of under 7(3), which I'll talk about later if there's any time

3 left - both Loncari and Ocehnici involved military police and the Jokers.

4 We do not believe the appellant had effective control of those units. We

5 know he did not have the ability to punish the military police, but we do

6 know he was able, through his urgings, to cause the military police

7 administration to remove Pasko Ljubicic, to install a new commander, and

8 to eliminate the criminals from the military police. So despite the

9 obstacles, he did work to try and improve the conduct and the composition

10 of a unit over which he didn't have control and couldn't simply issue

11 orders to remove a commander or reconstitute the unit.

12 With that, I'm going to turn the floor over to Mr. Nobilo to

13 address the Kiseljak municipality. Thank you.

14 MR. NOBILO: [Interpretation] Your Honours, as my learned colleague

15 Russell Hayman has just said, I'm going to talk about part of the

16 judgement, which refers to the municipality of Kiseljak. The judgement,

17 in the portion in which it treats the events in the Kiseljak municipality,

18 is not very understandable, so it leaves grounds to the appellant to guess

19 what the legal grounds are for the judgement, which found the appellant

20 guilty of the events in Kiseljak.

21 In paragraph 646 of the judgement, it states that General Blaskic

22 ordered or instigated the crime, which means that he would be held

23 responsible pursuant to Article 7(1) of the Statute of this Tribunal;

24 although the judgement fails to analyse the command responsibility on the

25 grounds of the theory of punishment, but just looks at it in global terms

Page 640

1 and terms him guilty by virtue of his command responsibility. And we also

2 note that Article 7(1) is a grounds for the judgement and for finding him

3 guilty.

4 The Trial Chamber, in point 63, states that General Blaskic, even

5 if he did not explicitly order the persecution and killing of Muslim

6 civilians, nonetheless did risk having these inhabitants and their

7 property become the primary targets of the sealing off and defensives

8 launched on the 18th of April, 1993. A conclusion of this kind was

9 brought by the Trial Chamber on the basis of three grounds, and those are

10 the following: The first grounds for a conclusion of that kind was the

11 preparatory and the contents of the combat preparation order and combat

12 order.

13 The second grounds for this was the fact that the orders were

14 addressed to Mijo Bozic, commander, who three months prior to that had

15 already issued an illegal order, contrary to the law.

16 And finally, the third grounds is that he used heavy weapons,

17 artillery, to attack the villages.

18 Since those three groups of facts are the grounds and foundation

19 for General Blaskic's guilt and judgement thereof, we are going to

20 concentrate our efforts on that, and we're going to divide -- I'm going to

21 divide what I have to say into three parts, linked to events that took

22 place in April 1993 in Kiseljak.

23 So the first thing we have to take a look at are the combat

24 orders issued by Blaskic himself. They are documents 299 and D300. One

25 is a preparatory combat order and the second is a combat order, per se.

Page 641












12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 641 to 648.













Page 649

1 Both of these were issued on the 17th of March, 1993. However, for us to

2 be able to comprehend --

3 [Defence counsel confer]

4 MR. NOBILO: [Interpretation] There seems to be a mistake. I meant

5 to say the 17th of April, 1993.

6 For them to understand the importance of the combat orders, we

7 must briefly take a look at what the combat situation was overall on that

8 particular day, the 17th of April, 1993.

9 Regardless of what you might conclude, who it was who on the 16th

10 of April in Vitez pulled the trigger first - probably the military police

11 in Ahmici - I put it to you that the new evidence shows that the Army of

12 Bosnia-Herzegovina, in the next few days - that is to say, the 17th of

13 April, the 18th of April, the 19th of April, and so on - took over the

14 initiative.

15 If we take a look at the new evidence, which is the wartime diary

16 of the operative zone of Central Bosnia - and that is our second request,

17 and it is Exhibit 14; we have tendered that - then we shall be able to see

18 that already on the 17th of April there is fighting around the HVO brigade

19 headquarters in Zenica and that on that day, the fighting from Zenica was

20 being moved to Podbrezje and Cajdras - that means closer to Busovaca

21 itself - and that on the 18th of April, 1993 the deputy commander of the

22 Zenica Brigade, Vinko Barisic, at 1900 hours, signed the capitulation for

23 the entire brigade.

24 Furthermore, in the diary we shall also see that in the coming

25 days the BH army attacked Busovaca, and I should like to point out

Page 650

1 document D324 and the wartime diary that I've already mentioned.

2 In D324, this document is a report from the Busovaca Brigade, and

3 in it we can see that 2.000 soldiers - that's what it speaks about - of

4 the BH army are attacking Busovaca.

5 Those soldiers were brought in from various municipalities,

6 including Kakanj, Visoko, which is the neighbouring municipality to

7 Kiseljak. And what does Blaskic do then, faced with a combat situation of

8 that kind? He does what any soldier would do: He tried to open up a

9 second front and, in so doing, to tie in the forces of the Army of

10 Bosnia-Herzegovina to that other front in Kiseljak and, in that way, to

11 weaken the pressure exerted by the BH army on the Vitez-Busovaca enclave.

12 Therefore, document D299 is in fact the first document and the

13 first combat order, which he issues on the 17th of April, at 0910 hours.

14 It is one of two orders on which the judgement is based, the guilty

15 judgement is based. And already, in its title, we will be able to see the

16 purpose of that particular preparatory combat order.

17 What is stated is the following: It is the preparatory combat

18 order to tie up part of the Muslim forces. Let me repeat, to tie down the

19 Muslim forces. It is the military rationale for issuing an order of this

20 kind and not the persecution of the civilian population.

21 In point 1, contrary to the judgement of the Trial Chamber, we

22 maintain that no reasonable court of law in point 1 can find hostile

23 language or incitement to violence of any kind. It is in point 1, as is

24 customary in military orders, that the person issuing the order gives an

25 overview of the situation, and so does Blaskic. The information he

Page 651

1 received that particular day, he writes down in point 1. And in the war

2 diary that I mentioned earlier on, we have a host of similar information

3 coming in from Zenica speaking about the violence of the BH army against

4 the Croats of Cajdras and Podbrezje.

5 In point 1, there are no expressions of hatred towards the Muslim

6 people, towards Muslims. All that is mentioned is the enemy, and nobody

7 else.

8 For you to be able to understand fully that preparatory combat

9 report, it is necessary to take a look at point 2, which describes the

10 tasks and assignments of the unit of the HVO in Kiseljak, which were

11 issued pursuant to that order, and I'm going to quote here. "The tasks

12 for your unit are as follows: To tie down the aggressor forces by doing

13 the following: A, to block the village of Visnjica and other villages

14 from which the enemy could launch an attack; and B, to take control of

15 Gomionica, Svinjarevo, and previously to lend cannon support, the VBR and

16 mortar fire, multiple rocket launchers; attack the main force from the

17 Sikulje and Hadrovci axis to take control of the defence line and to

18 conjoin all forces."

19 Therefore, in this order, which was the basic grounds for a

20 judgement of guilty, we have clear-cut military instructions. Blaskic is

21 asking that the village of Visnjica be sealed, and he also wants other

22 villages to be sealed off, but he limits this sealing and blocking of

23 these villages to those villages from which a military attack is probable;

24 that is to say, only those villages from which his forces could be placed

25 in jeopardy. And he goes on to say "other villages from which possible

Page 652

1 attacks by the enemy may be launched."

2 Furthermore, point 2(B) calls for taking control of Gomionica and

3 Svinjarevo. Why? Because it was in Gomionica that the headquarters and

4 main force was located at the BH army in Kiseljak. And according to the

5 position from the judgement, point 632, it was in -- there were 70

6 soldiers in Svinjarevo of the BH army. And the judgement recognises that

7 in the villages of Gomionica, Hercezi, Svinjarevo and Visnjica, there was

8 a BH army presence there during the relevant period of time.

9 But as we're on the subject of Gomionica, let us now take a look

10 at what Blaskic is asking for. He is not seeking an attack directly on

11 the village of Gomionica. What he says is this: He says that an attack

12 with the main force should take the axis of Sikulje and Hadrovci. Your

13 Honours, in due course, in a subsequent document, we'll be able to see on

14 a map the position of both Sikulje and Hadrovci. They are two hills above

15 the village of Gomionica from which one is able to militarily exert

16 control on villages lower down, on the slopes lower down beneath the

17 hills.

18 So what Blaskic is doing is following military logics. He's

19 calling for the hills above the villages to be taken control of, for him

20 to be able to exert control over the villages down below.

21 Now to conclude this point: It is obvious that Busovaca, during

22 those days, was exposed to an all-out attack. It is also obvious that

23 Blaskic, with this order, sought assistance from Kiseljak.

24 Now we come to the key question that has to be asked: How could

25 the HVO of Kiseljak help and assist the HVO in Busovaca? How was that

Page 653

1 possible? Only by opening up a new front and to have part of the

2 aggressor forces - from Blaskic's point of view, the aggressor - the BH

3 army, has to be moved to Kiseljak. That's the only way that this could be

4 done, the HVO -- that the HVO Kiseljak could help Busovaca, not the

5 persecution of the population.

6 So this preparatory combat order, contrary to the position taken

7 by the Court, has a purely military logic. It is a lawful one, and it is

8 directed towards the realisation of exclusively military goals.

9 The second --

10 JUDGE SCHOMBURG: Thank you. You were kind enough to present to

11 us paragraphs 1 to 5 of this document. However, I want to recall that the

12 judgement, in paragraph 646, makes reference to the eighth paragraph of

13 the same document, saying that, on the contrary, the eighth paragraph

14 implied that this task went well beyond it - the accused employed radical

15 words in the order which have connotations of eradication - "all assault

16 operations must be successful, and to that end use units of the military

17 police and civilian police for the mopping up." These were the

18 conclusions by the Trial Chamber.

19 If you could be kind enough also to elaborate on this eighth

20 point, please.

21 MR. NOBILO: [Interpretation] Your Honour, I'll be coming to that a

22 little later on. Point 8 was not in document D299, in actual fact, which

23 represents the preparatory combat order issued on the 17th of April at

24 0910 hours. Point 8, with this expression of cleansing, is contained in

25 document D300, "mopping up," and it was issued on the same day at 1145.

Page 654

1 And I'm just about to move to that second document and to explain it,

2 taking into consideration the term "mopping up."

3 So as I've already said, on the 17th of April, the situation in

4 Zenica is deteriorating. The brigade is faced with capitulation, which is

5 ultimately what was to happen, and Blaskic on that same day, that is to

6 say, the 18th of April, at 2345 hours, issued an express combat order for

7 an attack on the next day at 5.30 a.m. So that is the second combat

8 order, the executive one, and that is what the Trial Chamber based its

9 decision on.

10 Now, if we look at military theory, preparatory combat reports and

11 combat -- preparatory combat orders and combat orders, executive ones,

12 should be taken as a whole and viewed together. Now, in this second

13 combat order, D300, in point 1, Blaskic once again engages and analyses

14 the combat situation and enemy activity in that regard; that is to say,

15 the Army of Bosnia-Herzegovina in Zenica.

16 If we take a look at the war diary, all the information there --

17 all the information which Blaskic sets out in point 1, we'll find in the

18 war diary as well. However, there is no mention there once again of any

19 hatred. There is no hatred towards the Muslim people expressed there.

20 There are no serious derogatory terms of Muslims and civilians. All that

21 is spoken about there is the behaviour and conduct of the enemy army, and

22 the enemy army, to Blaskic - we know who that was - were an allied army

23 until very recently, and that is set out clearly in point 1.

24 Furthermore, in point 2, Blaskic orders the use of cannon -- the

25 artillery. We're going to talk about the artillery later on, but I should

Page 655

1 like to draw your attention to the fact that in point 2, Blaskic speaks

2 about the systematic targeting of the artillery. The systematic targeting

3 of artillery is a notion that is opposite to ad hoc shelling, or random

4 shelling. So what is being done is systematic targeting, which means to

5 shoot at a given target, which is quite different from random shelling,

6 where civilians were killed.

7 Now, what is the goal of that particular combat order? This can

8 be seen in point 4 of the combat order, because it is there that Blaskic

9 specifies the target; that is to say, he pinpoints the enemy and defines

10 it as being the Muslim Armed Forces - and the abbreviation is the MOS, the

11 MOS - and the Mujahedin, which means the members of different -- that is

12 to say, foreigners who came to Bosnia-Herzegovina to fight on the side of

13 the BH army. And it was these Mujahedins that he was referring to.

14 Furthermore, in point 9, the Trial Chamber notes that Blaskic is

15 using dramatic utterances and claims that this is also -- this also

16 constitutes a crime. However, we believe that the sentence contained in

17 point 9, where he urges his soldiers to be aware of their historical

18 responsibility, that no reasonable tribunal could conclude that this is

19 instigation to crime. This melodramatic kind of speech is quite usual in

20 such situations.

21 Let me given you an example: That's Exhibit 45 from our fourth

22 motion. This is an order issued by Mario Bradara, the deputy commander of

23 the Vitez Brigade, in which he orders his soldiers to apply the provisions

24 of the international humanitarian law. So this is without a doubt a

25 positive order, and Mario Bradara further says - let me quote - "Be aware

Page 656

1 of the importance of your task, because the survival of

2 Croatian people is at stake."

3 Correction: It is not the Vitez Brigade but the Kiseljak Brigade.

4 So Mario Bradara was the deputy commander of the Kiseljak Brigade. So

5 when he issues an order based on the international humanitarian law, he

6 again uses these melodramatic utterances, urging his soldiers to be aware

7 of their task because the survival of the Croatian people is at stake, but

8 he still wants them to abide by the provisions of the international

9 humanitarian law. This is just a melodramatic speech. That's not a

10 crime.

11 Now we come to a very important issue. In point 8, it is stated,

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 the two orders, D299 and D300, point to the same conclusion.

24 Furthermore, in our fourth motion for new evidence, the document

25 44, is an order -- in fact, it's a report by the other side, of the Army

Page 657

1 of Bosnia and Herzegovina, where they state that they mopped up Gola Kosa.

2 Gola Kosa is the summit -- is a summit en route to Ahmici. There are no

3 villages there, no inhabitants. So if they mopped up Gola Kosa, that

4 could only mean that they had eliminated any HVO strongholds, because

5 there are no villages and no civilians there.

6 The third example: The second motion for the admission of new

7 evidence, document 14, is the war diary of the operative zone Central

8 Bosnia. I will be referring to this document quite often. It is perhaps

9 one of the best things in an evidentiary sense that Blaskic did. He

10 ordered his clerk, at the beginning of the war - we have that in his

11 testimony - that his clerk should write down everything that he sees,

12 everything that happened. So we have a blow-by-blow reconstruction of

13 what was happening.

14 And so on the 17th of April, 1993, at 1035, Blaskic is talking --

15 at 1635, Blaskic is talking about Gomionica, and he says, "You will have

16 big casualties if you launch a mop-up." That's what he's saying to the

17 Kiseljak Brigade of the HVO. Those who want to expel civilians and fight

18 against civilians cannot have big casualties, but those who enter a

19 village and try to eliminate remaining pockets of resistance in the

20 context of the fighting in a built-up area can expect to have big

21 casualties, which is the best proof of the fact that the term "mop-up"

22 refers exactly to the kind of operation that the military expert described

23 for you last week.

24 This is all I have to say about this issue.

25 However, the Trial Chamber took into account only two orders that

Page 658

1 we consider to be lawful: the orders of the 17th; we analysed them in

2 full here. However, in order to be able to understand the real sense

3 behind these orders and the mens rea of Tihomir Blaskic at that time, we

4 have to analyse not only the overall combat situation but other orders and

5 other important events that happened at the same time as these orders that

6 are at issue here were issued.

7 On the 17th of April, 15 minutes before midnight, Blaskic ordered

8 an attack to be carried out on the 18th of April, and that's not at issue.

9 He did the right thing, in military terms, because his opponent at the

10 time, General Hadzihasanovic, the commander of the 3rd Corps, did the same

11 thing. In new evidence, Document 47, fourth motion, we have an order, a

12 memo, sent to the Kiseljak unit of the BH army on the 17th of April by

13 Hadzihasanovic, in which Hadzihasanovic says, and I quote: "Check and

14 immediately assess the situation in Kiseljak, and on this basis, with your

15 forces from Kiseljak, disarm and take all the areas taken by the HVO."

16 This is an order issued by the commander of the 3rd Corps, to

17 disarm and to take all the areas manned by the other army

18 is -- automatically means war, because no other -- the other army is not

19 just going to pick up their things and go.

20 Furthermore, Hadzihasanovic says through the authorities that

21 every village should prepare for its defence in its own way, even if it

22 means that they should have their picks and axes ready.

23 In point 8 -- in point 6, it is stated: We expect your proposals

24 urgently, if possible, in the course of the night.

25 Point 7 indicates: Begin preparations immediately.

Page 659

1 This means that Blaskic made a good assessment when he ordered an

2 attack to be launched in the morning, because that's precisely the same

3 thing that his opponent did, the same order to his own units, for the same

4 day, the 18th of April. In order to be able to understand the orders that

5 the Trial Chamber used as the grounds for the conviction, we have to look

6 at other orders issued by Blaskic in this same period. On the very same

7 day when the hostilities broke out in the municipality of Vitez, Blaskic

8 issued an order, that is on the 18th of April, 1993 - that's D32 - in

9 which he requests all the soldiers to be exchanged for other soldiers and

10 that the information be gathered about those who killed civilians, burned

11 people, and houses. Blaskic is probably inspired by the events in Vitez.

12 But he's not issuing this order to the units in Vitez, but to all the

13 brigades, including the Kiseljak Brigade. Trying to prevent the course of

14 events. So his lawful combat orders, ordering attack operations, must be

15 viewed together with this humanitarian order that he issued on the same

16 day.

17 I will finally go back, and I think that this is really important,

18 to the war diary. And here we have to make an additional effort.

19 Yesterday, when we compared the original handwritten text in the war diary

20 and the official translation into English, we noted that a portion has

21 been left out in the translation. A portion of the conversation between

22 Blaskic and Kiseljak on the 19th of April, 1993. The time was 1635.

23 It is not contained in the English translation, but it is

24 contained in the Croatian text, and I ask the registrar to place the

25 Croatian text on the ELMO. And I would now like to ask -- we don't have

Page 660

1 the image. We should have the -- so this is the text that is missing in

2 the English version. I will try -- okay. So we have 1635. The entire

3 text is missing. It is very important. I will try to read it, although

4 it is -- it is handwritten. And I would now like to ask the interpreters

5 to try to decipher from the screen, if possible. So the text begins as

6 follows: Kiseljak, Mario calls Colonel TB, obviously this is

7 Tihomir Blaskic - "The area up there has not been taken care of. A little

8 bit remains. Force that. Don't touch the area down there. Visnjica

9 should be sealed off. It cannot be" -- the next word I cannot make out.

10 "Just go along the crest. Do not go down. There is a route. Tell Goran

11 to pay attention to the area up there. We will persevere. We will defend

12 ourselves. Seal off and cut off. You will have large casualties if you

13 do the mop-up. Take the crest. Take from the area down there, from the

14 adjacent units of Goran and from Zoran's facility. This must be the axis.

15 Here things are quite good. Busovaca is being attacked from all sides.

16 You have to hold the forces for them. Provide smaller groups in waves to

17 carry out the tasks."

18 [Defence counsel confer]

19 MR. NOBILO: [Interpretation] So that, then, was the text of the

20 conversation that Blaskic had over the phone with Kiseljak, and his clerk,

21 at headquarters in the basement of the Vitez Hotel, quite obviously wrote

22 down verbatim what he heard, and this can be seen because you can tell

23 that a live conversation was being recorded, word by word. However, for

24 us to be able to understand this conversation, because the places aren't

25 mentioned, we have to take a look at the map.

Page 661

1 JUDGE POCAR: Mr. Nobilo, just to be safe: Is your point that all

2 this item is omitted in the English translation, the whole of what you

3 read out? Because I don't have the text now before me.

4 MR. NOBILO: [Interpretation] Yes, that's precisely it,

5 Your Honour. Yes, quite right. In my preparations, I of course used the

6 original Croatian version, and to present it -- the English text to you

7 last night, when we looked through it, we found this missing in the

8 official English translation.

9 So for you to be able to understand this live conversation, we

10 must take a look at the following: The village of Gomionica stretches

11 from the Mlava River valley, rising upwards along the slopes of the hill.

12 Gomionica is at a lower elevation and in a valley as well. Blaskic

13 mentions Sikulje and Hadrovci in his order and we have marked that on the

14 map those are two hills which dominate the area above Gomionica, the hills

15 are up at a high elevation and Gomionica is down below.

16 Now, if we know that, then we can read and analyse the relevant

17 portions, the relevant sentences. And I have extracted for this purpose

18 those relevant sentences. I'm sure you'll remember that Blaskic issued a

19 written order that the units should take control of the two hills, Sikulje

20 and Hadrovci. That is the order what the order read. And from Kiseljak,

21 he's being told that that up there has not been completed, taken care of,

22 which means, in translation, that the hills of Hadrovci and Sikulje have

23 not been taken because that's what it said in the original combat order.

24 Now, Blaskic is responding to a man called Mario from Kiseljak in this

25 case, and he says the following. This is what his answer is: "Force

Page 662

1 that." Do that. Up there, the hill. That's what he means. And what is

2 most important is what Blaskic says next: "Don't touch anything down

3 below." And that "down below" means the village of Gomionica.

4 Furthermore, Blaskic goes on to state the following: Visnjica has

5 to be sealed off. Visnjica is once again a village that has not to be

6 taken control of, but to be sealed off. And then he goes on to issue the

7 following order: "Take the crest. Don't go down there." Which means go

8 up, up the hill, and not down to the village.

9 And then we come to this very important next point that he makes:

10 "You will suffer heavy casualties if you resort to mop-up. Take control

11 of the crest alone, the slope." And as a reason for all these combat

12 activities, we come to the following sentence: "Busovaca is being

13 attacked from all sides. You must hold their forces. So you must link up

14 the Kiseljak forces, tie up the Bosnia-Herzegovina army forces. You have

15 to tie them down."

16 So this is live speech that we're looking at here. Nothing

17 stylised there, nothing written. This is live, in the throes of battle,

18 speech as it came from Blaskic. So that's what he says at the time, those

19 are the orders he issues to his brigade in Kiseljak.

20 From the new documents, PA47, for instance, PA48, then we have an

21 old Prosecution Exhibit, P456/44, and P456/50, we can come to the same

22 conclusions if we analyse these documents. Those documents lead us in the

23 same direction, just as Blaskic's orders do and what he actually said viva

24 voce. All the more so in document D333, where he says that there was a

25 counter-attack against the HVO launched by the BH army. And furthermore,

Page 663

1 not only on the 18th of April, but on the 24th of April, orders are issued

2 as they are on the 25th of April, on the basis of the Geneva Conventions.

3 It is number 146/1, 146 of the new evidence and exhibits, D35 is another

4 case in point, et cetera.

5 Now, if we take a look at the report from Kiseljak, D35, then

6 you'll be able to see that there is no information there of any violence

7 against civilians. All we see are combat orders. And let me conclude by

8 saying the following: It is important to note that those orders which

9 provided the basis and grounds for the judgement against Tihomir Blaskic

10 were that these orders were lawful and legitimate, they emerge from

11 military logics in order to accomplish military goals.

12 And amongst the appellant's orders and crime, there is no feedback

13 mechanism, cause and effect. That does not exist anywhere. So no

14 reasonable court of law, on the basis of those orders, would be able to

15 pronounce Tihomir Blaskic guilty.

16 The second grounds upon which the judgement rests is the

17 following, and I'm going to address it very briefly: The fact that

18 Blaskic ordered combat activity to Mijo Bozic, issued a combat order to

19 Mijo Bozic, who, in January 1993, issued an unlawful order. The Court

20 acknowledges that the order never took effect, was never implemented,

21 nothing bad ever happened pursuant to it. But if we were to take a look

22 at the order itself, then what we shall see is this: That it was not sent

23 to Blaskic; he was not even given insight into it, or shown it. And there

24 is absolutely no evidence that Blaskic ever before this trial laid eyes on

25 that particular order.

Page 664

1 So the existence of that particular order is irrelevant for

2 Blaskic's mens rea.

3 [Appeals Chamber confers]

4 MR. NOBILO: [Interpretation] The third grounds upon which the

5 judgement finding Blaskic guilty is based is the way in which the

6 artillery was deployed and used, because the artillery was first used and

7 then the infantry. My colleague, Mr. Russell Hayman, has already spoken

8 about that at length. I don't want to repeat what he said. But what I

9 want to say is this: At the trial, nobody presented evidence or showed

10 exaggerated shelling. Nobody showed evidence that there was shelling of

11 civilians. And as I've already said, Blaskic ordered systematic targeting

12 of enemy targets, and not random and non-selective shelling of

13 settlements.

14 Everything that I have said thus far covers the events that took

15 place in April 1993.

16 The next group of events for which Blaskic was found guilty were

17 events that took place in June 1993, in Kiseljak. The Court acknowledges

18 that they do not have a single order by Blaskic for attacks in June 1993,

19 but the Court goes on to say: Yes, we do not have all the documents, and

20 that is correct. They do not. This Court, this Trial Chamber does have

21 the entirety of the documents. The Prosecution can freely go to the

22 archives in Zagreb, look up the months in question, and people spent

23 months there looking through all the documents. There is no order for

24 June 1993. However, we don't accept the position taken by the

25 Trial Chamber and expressed in its judgement that this lack of evidence

Page 665

1 can go to the detriment of the accused. It is contrary to the fact that

2 everybody is presumed innocent until proved guilty.

3 The guilt of General Blaskic is deduced by the Trial Chamber from

4 the similarity between military operations in April and in June, and

5 especially from the fact that the artillery was used first, that the

6 Ban Josip Jelacic Brigade was deployed and used, that the artillery of the

7 Bosnian Serbs was used, and so on and so forth.

8 So this was considered by the Trial Chamber as being similar. We

9 have heard from military experts and other witnesses with military

10 knowledge that this is a basic military technology which is taught in the

11 first year of any military academy in the world. The artillery always

12 goes first and the infantry follows suit. There was no other brigade in

13 Kiseljak except the Ban Josip Jelacic one, and all operations were

14 undertaken by the Ban Jelacic Brigade, the deployment of the artillery of

15 the Bosnian Serbs was Ivica Rajic specialty, and many exhibits testify to

16 that, not those by Tihomir Blaskic.

17 However, what is more important is this --

18 JUDGE SCHOMBURG: Would we be able to zoom this map a little more

19 in so we could better follow your arguments? Because it was nearly not

20 legible.

21 MR. NOBILO: [Interpretation] Your Honour, you can see the arrows,

22 and there the hills, denoting the hills, Sikulje, Kocatala, et cetera. On

23 the right we have Sikulje. That was mentioned. A little lower down on

24 the right, at the beginning of the arrow and Kocatala was also mentioned,

25 I believe. Hadrovci aren't on the map, I don't think, aren't shown.

Page 666

1 However, if you look at the intensity of the lines, map experts can deduce

2 which is the higher elevation, and you can see that the numbers are 759,

3 770, as features and elevations above sea level, if I can read the map,

4 whereas Gomionica, which is the village, is somewhat lower down.

5 Unfortunately, we weren't able to provide an aerial photograph

6 which would have made things much clearer.

7 Now, if we go on to June 1993 and look at that month, I think we

8 can draw the following conclusion: That Blaskic at that time already had

9 lost de facto control over Kiseljak, the Kiseljak pocket. And one of the

10 key documents is -- as I was saying, we have a new exhibit, number 132,

11 from our first motion, which is in fact a letter written by Blaskic on the

12 11th of May, 1993, and addressed to -- this is page 2, but I'm -- let me

13 just say that it was a letter sent to Bruno Stojic, who was de facto

14 defence minister of Herceg-Bosna, Milivoj Petkovic as well. That was the

15 second addressee, the head of the Main Staff of the HVO. And

16 Valentin Coric, the police commander. And in it, he says, and I quote:

17 "The situation in Kiseljak is now very complex. That is why I should

18 like to ask you, temporarily, as commander of the Operative Group 2 of

19 Kiseljak, that Mr. Ivica Rajic be appointed to that position, who could,

20 along with your guidance, be in charge of the situation. Because Kiseljak

21 and Kresevo and Fojnica have been cut off from Busovaca, Vitez, and

22 Travnik," and so on and so forth.

23 So what he is doing is proposing that the Main Staff directly lead

24 the operation in Kiseljak via a new function given to the head of

25 Operative Group II to which Ban Josip Jelacic Brigade would be

Page 667

1 subordinated. And of course if we look at all the other documents we

2 should be able to see that after that particular date, a direct line of

3 communication is being established between Petkovic, head of the Main

4 Staff, and Rajic, in Kiseljak. Rajic informs Petkovic, and then Petkovic

5 issues orders. And that Blaskic was isolated in that communication line.

6 However, de facto, that took place previously, on the 28th of April, 1993,

7 when Petkovic orders Rajic to inform him, report back to him, about the

8 crimes against civilians that had been committed and to inform him, that

9 is to say, Petkovic, the head of the Main Staff. Because Petkovic was in

10 UNPROFOR vehicles and was able to reach Kiseljak through Serb territory.

11 In our documents, you have a whole series of documents that prove

12 this communication, and Petkovic stated in the newspapers, or in other

13 words, Rajic said that he and Blaskic were acting independently of each

14 other and that they were reporting directly to the Main Staff. And the

15 Prosecution knows that the crime in Stupni Do, which was formerly in the

16 area of the Central Bosnia operative zone, yet Blaskic was never charged

17 with this crime, only Rajic. In the Kordic case, the Prosecution

18 presented a chart with the system of authorities in this area, that's the

19 document number 16 filed from our motion, where Rajic and Blaskic are

20 shown to be independent of each other, directly responsible to the Main

21 Staff. This is what the Prosecution claims is the case in another case.

22 Thank you very much.

23 MR. HAYMAN: Your Honour, by my records, we have until 3.40.

24 That's about eight minutes. Would you like to try to complete that or

25 take a break.

Page 668

1 JUDGE POCAR: I think you can complete. It's correct you have

2 until 3.40.

3 MR. HAYMAN: Thank you. First, I want to clarify the war diary.

4 While my colleague was speaking, I pulled out April 19th in the English,

5 and what I found was the passage from 1635 is there, but the first line,

6 which indicates a new entry, both the time and the contact with Mario in

7 Kiseljak aren't recorded. It simply says "illegible." So a run-on from

8 the entry, but the bulk of it is there, as translated by the translators

9 here today. This is on page 140 of the war diary, Exhibit 14 to Rule 115

10 motion, second. So we would ask, I think it's appropriate, given that the

11 Croatian version is in evidence, that the translation be corrected. I

12 don't think that would be inappropriate. In effect, it's already been

13 corrected by reading it into the record, but it might be helpful to

14 Your Honours if it were actually corrected in the written exhibit.

15 JUDGE POCAR: Mr. Farrell.

16 MR. FARRELL: It may be more appropriate that it be sent to

17 the -- I don't have any objection to it being properly translated. It may

18 be more appropriate that it's sent back to the translation unit for an

19 official translation and brought back. But in terms of the content for

20 today, of course not.

21 MR. HAYMAN: That's what I mean, Your Honour. The translation

22 unit. We don't want to do it. So in the five or six minutes I have left,

23 in terms of the legal issues, we would ask the Court to look at the 7(1)

24 versus 7(3) issue. It's set forth in our brief at 118 to 121. That is

25 our appellate brief, in principle, and we simply note the Trial Chamber

Page 669

1 agreed with our objection that the indictment was vague and contradictory

2 between these two theories and said that the Prosecutor should clarify

3 them or they would bear the consequences of failing to do so. Well, here

4 we are today. So we ask that you look at that, and we also would ask on

5 the legal front that you look at the issue specifically of the failure of

6 the Trial Chamber to find or require specific intent to commit persecution

7 and to discriminate against civilians with respect to the persecution

8 count. We don't believe that that analysis was properly done.

9 So I want to say a word about detention centres and

10 trench-digging, if I have time. I will stop when my time runs out.

11 With respect to the detention centres, Kaonik is one that you have

12 heard about and we think it's fairly straightforward. The appellant had

13 neither de jure or de facto control of this Kaonik facility. De jure

14 control, as set forth in the new evidence, was under -- it was under the

15 district military courts but administered by the military police. This is

16 a report, Exhibit 84 to the first Rule 115 motion, a report by the

17 military police administration to the president of Herceg-Bosna,

18 Mate Boban, talking about the military police administration of the

19 prisons. They administered the prisoners in terms of de jure. What did

20 that mean in Busovaca the military police answered to Kordic and

21 Sliskovic. So de facto control of Kaonik was Kordic and Sliskovic.

22 And you can review Exhibit BA4's testimony in that regard in

23 detail if you believe it would be helpful.

24 The Dubravica and SDK detention location was a Vitezovi location.

25 Rotilj was in Kiseljak long after Kiseljak was cut off. I think what's

Page 670

1 perhaps most important about detention is in Vitez, where Blaskic had

2 relatively more influence, he got all the detainees released by the 30th

3 of April. He signed an agreement on -- he signed an agreement on the 18th

4 of April to release -- for a ceasefire and to release all detainees.

5 That's within 48 hours of detainees being taken. Of course, the problem

6 was, when the conflict broke out, detainees were detained on both sides of

7 the confrontation line. It happened, probably many of those detainees

8 were better off, as a witness testified here last week, because they

9 weren't being killed by criminals and rogue groups that were out roving

10 around. Within 48 hours appellant signed to release them. He got them

11 released by April 30th, in contrast to places like Kiseljak, where he

12 didn't have enough influence to get the detainees released.

13 I would also note the fact of the detention is not illegal. What

14 is the issue and what he was convicted for is inhumane and cruel

15 treatment, and there is no evidence that he is responsible for any

16 inhumane or cruel treatment.

17 We have three slides showing that between April and September of

18 1993, the appellant issued more than ten orders directing the proper

19 treatment of detainees. We have five orders in April, on the first slide;

20 we have five orders in June, on the second slide; and we have two more in

21 June, one in July, and one in September.

22 Now, the Prosecutor is never going to be content with the issuance

23 of orders, but the question is: He issued the orders. He directed proper

24 treatment and so forth. If it didn't happen, if it didn't get uniformly

25 implemented, why is that? Why is that? Was he supposed to take out a

Page 671

1 sidearm and start shooting people in the head, taking the law and

2 everything into his own hands? That's certainly not what he was taught at

3 military academy. And he was constrained by his own teaching, for better

4 or for worse.

5 Now, the Prosecutor, we know, in some of their papers have

6 suggested that these orders for proper treatment, they were just a sham.

7 Colonel Blaskic didn't mean it. We've submitted to respond to that orders

8 that were repeated by subordinates, and this is D32. This is an internal

9 order by a subordinate -- actually, this isn't -- we have other orders

10 that are internal. This is one of the orders for proper treatment which

11 are secret, confidential orders. They were created for internal purposes

12 only. There's nothing having to do with propaganda here, and so forth and

13 so on.

14 Now, the Prosecutor may show you PA52, which is dated 27 April,

15 and I would note: Within 48 hours, the appellant issued an order to all

16 brigades to identify and release all detainees and cooperate with the ICRC

17 in this process. That's Defence Exhibit 366. If they want to talk about

18 PA52, which has to do with ICRC access, I would urge you to think

19 critically about this exhibit. Was the appellant charged with denying

20 access to detainees? He wasn't. If so, why are orders like this the ones

21 that are being shoved in your face? Why are they not answering the

22 question: Is D296 illegal? Is D -- excuse me. D267. Is D269 illegal?

23 Is 299 illegal? Is D300 illegal? They should talk about that. Those are

24 the real issues in this case.

25 I will address trench-digging in rebuttal, Your Honours. Thank

Page 672

1 you.

2 JUDGE POCAR: I thank you, Mr. Hayman.

3 May I ask my colleagues if they have any question at this stage.

4 Judge Guney, perhaps.

5 JUDGE GUNEY: [Interpretation] Mr. Hayman, still with respect to

6 what took place in Vitez, you indicated that the appellant issued orders

7 to initiate -- something [as interpreted]. Now, my question is as follows

8 -- to initiate an investigation. Now, my question is as follows: Did he

9 initiate several investigations in order to prove effective control,

10 effective control on the part of the appellant? And my second question:

11 If that is the case, what conclusions did these investigations show? Did

12 the appellant ask to get answers by conducting those investigations? Were

13 those investigations launched in order to punish the perpetrators of

14 crimes? Thank you.

15 MR. HAYMAN: Thank you, Your Honour. We have two written orders

16 to SIS to investigate the Ahmici crime. The first was on May 10th,

17 demanding a written report by May 25th. The second was on August 17th,

18 demanding a report by, I believe, September 7th or 17th. And I think if

19 you look at those orders, you can see the frustration -- yes, Your

20 Honour.

21 JUDGE GUNEY: I am talking about the orders which were given

22 immediately after the press conference.

23 MR. HAYMAN: The order --

24 JUDGE GUNEY: To initiate --

25 MR. HAYMAN: To investigate Ahmici, Your Honour?

Page 673


2 MR. HAYMAN: The orders -- well, the first thing that happened was

3 a request for a joint investigation with the United Nations and the BH

4 army, and that did not come to pass. When that became clear to appellant,

5 he ordered the SIS representative to investigate. That was oral. He, in

6 his follow-up contacts - and this is his testimony at trial - he became

7 anxious that he wasn't getting any feedback, so he issued the written

8 report on May 10. That's the first written - excuse me - written order.

9 That's the first written order to SIS to investigate Ahmici.

10 If you compare that to his August order, you'll see by August he's

11 very frustrated. He uses very strong language. He tells SIS: I want a

12 complete report. I want it in writing no later than -- and he specifies a

13 date in September.

14 I think those orders and his other testimony show he wanted the

15 perpetrators identified. And in the August order, he specifies: I want a

16 report so that it can be forwarded to the proper authorities and so that

17 proceedings can be instituted. That's criminal prosecutive [sic]

18 proceedings, Your Honour. That's what he wanted, and it's in his order of

19 August.

20 I think that -- now, part of your question is: Was he able to -

21 I glean - could he establish effective control over the military police by

22 issuing these orders to investigate? I don't think so. The problem was:

23 He could push SIS to investigate, but he could not discipline, he could

24 not bring charges himself, and ultimately, SIS only reported to him with a

25 dotted line. The SIS's direct line was to the SIS administration in

Page 674

1 Mostar. So ultimately, in September, the SIS assistant tells him: I

2 finished my report. I sent it to SIS in Mostar. It's no longer your

3 concern. And he could not order SIS to give the report to him, because

4 ultimately SIS reported to the SIS administration in Mostar.

5 So I think he did his best to investigate, but it is not a

6 situation where he could use these limited investigative powers to gain

7 effective control over the military police. He gained much more control

8 over the military police when he was able to persuade the authorities in

9 Mostar, through General Petkovic, to remove Pasko Ljubicic, to install

10 Marinko Palavra and remove the criminal element from that unit.

11 [Appeals Chamber confers]

12 JUDGE POCAR: Okay. Please go on.

13 JUDGE GUNEY: [Interpretation] Could you be so kind as to give me

14 some clarifications. I think it was with respect to Exhibit 65,

15 Mr. Nobilo, the term "mop-up" was used again. Now, if you could clarify

16 that, that would be a very good thing, with the term "mop-up." Could you

17 clarify. When the question was raised by Judge Schomburg, you expounded

18 on that question.

19 MR. HAYMAN: Can we be sure we're looking at the right exhibit,

20 Your Honour? Is it Trial Exhibit 65 or -- we have probably multiple 65s.

21 JUDGE GUNEY: [Interpretation] We had a projection on the screen

22 before the map. It was the document you showed before the map.

23 [Appeals Chamber confers]

24 JUDGE POCAR: D300, probably.

25 JUDGE GUNEY: 365 something.

Page 675

1 MR. HAYMAN: Was it one of the orders to the Kiseljak Brigade?

2 We'll find it.


4 [Appeals Chamber confers]

5 JUDGE POCAR: Judge Guney is telling me it is the portion of the

6 war diary that was translated -- that was interpreted, actually.

7 MR. HAYMAN: Very good.

8 MR. NOBILO: [Interpretation] Yes. If we're talking about the war

9 diary, we know what this is all about. In the war diary, Blaskic says:

10 Do not start the mop-up, because you will suffer heavy casualties.

11 So if we take the term "mop-up" as a military term, elimination of

12 the remaining pockets of resistance - in this specific case, we're talking

13 about the village of Gomionica. This is a built-up area - it is to be

14 expected that heavy casualties will be suffered in this type of fighting.

15 In an ethnic cleansing operation, targeted are civilians, women,

16 children, unarmed men, and their property. The troops carrying out an

17 ethnic cleansing operation does not suffer casualties, because there is no

18 resistance, and that is why I make the conclusion that when Blaskic says,

19 "Do not start the mop-up, because you will suffer heavy casualties," that

20 he's talking about the elimination of the remaining pockets of

21 resistance, the term "mop-up," "ciscenje," taken in its military meaning,

22 and not the ethnic cleansing. That is the logic that I applied.

23 JUDGE GUNEY: [Interpretation] So you're providing the same

24 interpretation to both, that is to say, what you've just said, and also

25 the question asked by Judge Schomburg. So the two terms are used in the

Page 676

1 same sense?

2 MR. NOBILO: [Interpretation] Yes, that's right, Your Honour.

3 JUDGE GUNEY: [Interpretation] Thank you.

4 JUDGE POCAR: Thank you. Well, I think we should now break. We

5 resume at 4.15 to hear the -- to start hearing the submissions of the

6 Prosecution in response.

7 --- Recess taken at 3.51 p.m.

8 --- On resuming at 4.20 p.m.

9 JUDGE POCAR: Please be seated.

10 So I will now give the floor to the Prosecution for its

11 submissions in response. We will start now. I propose to have a break at

12 5.35, for 20 minutes, and then continue until 7.00. And, of course, the

13 prosecution will conclude tomorrow morning.

14 Mr. Farrell.

15 MR. FARRELL: Thank you, Your Honour. I just wanted to introduce

16 that Ms. Sonja Boelaert-Suominen will be -- excuse me, Judge Guney. I

17 apologise. It's a little difficult to see you.

18 Ms. Sonja Boelaert-Suominen will be commencing the response

19 submissions on behalf of the Prosecution, and then I will be following,

20 and it's both of our hopes that we'll finish our parts today so that

21 there'll just be a small part left for the morning.

22 If I could just address one matter. I appreciate that my learned

23 colleague Mr. Hayman and Mr. Nobilo worked hard to complete their

24 submissions within the time frame. I do have just one small concern,

25 which is that the -- there were no submissions on certain aspects of the

Page 677

1 brief, and I appreciate that it's their -- within their discretion to

2 decide on how they wish to proceed. But with respect to either indirect

3 intent or trench-digging, they indicated they'd address it tomorrow. The

4 indirect intent, of course, is because of the need to check the French, I

5 understand, and so I'd ask your leave, if necessary, at that time to

6 address anything that arises from that, as we won't be able to hear their

7 submissions prior to our finishing our response.

8 And secondly, they indicated that they'd address trench-digging

9 in their reply. With respect, they should address it in -- should have

10 addressed it in their submissions so that we'd have the chance to respond

11 to it.

12 I just wanted to raise those matters for you. Thank you.

13 JUDGE POCAR: I thank you, Mr. Farrell. Well, we'll see how we

14 proceed on these matters. Thank you.

15 MS. BOELAERT-SUOMINEN: Mr. President, honourable members of the

16 Court, good afternoon. As announced by Mr. Farrell, I will start with

17 presenting the Prosecution's oral response to one of the grounds of appeal

18 raised by the appellant.

19 The response this afternoon -- my response will take about 1 hour

20 and 15 minutes. It is going to be a relatively low-tech presentation, but

21 I have made a table of contents of my submissions because they are pretty

22 lengthy. Since I will need to make some reference to closed-session

23 evidence or transcripts, I propose that I will do that towards the end of

24 my submission, and I hope I can be content with making generic references

25 to additional evidence which was given last week.

Page 678

1 What I propose to cover in the next one hour is our response to

2 Section 2 of the appellant's brief, where the appellant argues that he

3 did not necessarily exercise effective control over all HVO troops.

4 The Prosecution has addressed this ground of appeal primarily in

5 Section 2(B) of its respondent's brief, which is adopted herewith in toto.

6 In my response today, however, I will also have to make reference to

7 written submissions which the Prosecution has given in other parts of its

8 respondent's brief, and I would refer in particular to parts of our

9 response relating to Article 7, both Article 7(1) and 7(3), and

10 also I'm going to briefly address the appellant's arguments that the

11 indictment was fatally defective.

12 What I will do in my submission is to critically review some of

13 the overly generic statements in my submission which the appellant has

14 made in the light of the findings of the Trial Chamber, the trial

15 evidence, as well as the standards prevailing in the Tribunal. I will

16 illustrate my responses with specific examples taken primarily from the

17 judgement.

18 Mr. Farrell will then proceed with responding to grounds 3

19 through 5 of the appellant's brief and addressing primarily the

20 reasonableness of the Trial Chamber's findings in light of the additional

21 evidence.

22 I will now proceed with the first part of my response this

23 afternoon.

24 Insofar as the --

25 JUDGE POCAR: Excuse me. I've been given this index of what

Page 679

1 is -- the index of your submission, I guess. Do you want it distributed?

2 Did you give it to the Defence as well? Oh, you have it.

3 MS. BOELAERT-SUOMINEN: I apologise, Mr. President. I had given

4 a copy --

5 JUDGE POCAR: Okay. Please continue.

6 MS. BOELAERT-SUOMINEN: Insofar as the Prosecution understands

7 the often-convoluted arguments made by the appellant, I understand that

8 two main propositions are made throughout his appeal. Insofar as the

9 regular HVO troops are concerned, the appellant does not appear to dispute

10 that he was, de jure, in command of these troops. However, he seems to

11 dispute that he was always de facto in control of these troops in the

12 entire region. Insofar as the other HVO troops are concerned -- and I'm

13 using this term generically because with the term "other HVO troops," we

14 could refer to special units, such as the Vitezovi and the Jokeri, but

15 there were also troops like the Milici police, which don't seem to fall in

16 any particular category. Insofar as these other HVO troops are concerned,

17 the appellant seems to claim that whilst these troops may have been de

18 jure assigned to him for a particular period or a specific assignment, he

19 did not always exercise either de jure or de facto effective control over

20 them on the grounds that they were reporting elsewhere in the structure,

21 to other units or other persons, or because they would be reporting to no

22 one.

23 The Prosecution's response to these arguments is threefold.

24 Firstly, it is important to remember that the appellant was convicted on

25 the basis that he ordered crimes, under Article 7(1) of the Statute. And

Page 680

1 this is the first part of my submission this afternoon.

2 Secondly, in the alternative, the Prosecution submits that the

3 appellant's attempts to challenge the elements of his responsibility under

4 Article 7(3) are legally flawed as well.

5 And the third part of my submission, Your Honours, is that the

6 additional evidence which has been adduced does not show that no

7 reasonable trier of fact could have come to the conclusion, A, that the

8 appellant ordered the crimes he was convicted of; and, B, that he

9 exercised effective control over the HVO troops that executed the actus

10 reus of the crimes he was convicted of. And this is the third part of my

11 submission, where I will go to the trial evidence and I would request

12 closed session for the last part of my submission.

13 As the Prosecution has emphasised in its respondent's brief,

14 insofar as the appellant seeks to show that he did not exercise effective

15 control over all HVO troops, there can be no impact on the verdict. The

16 reason for this is that although the Trial Chamber unambiguously found

17 that the appellant exercised effective control over all HVO troops that

18 committed the crimes he was convicted of, the Trial Chamber found that

19 above and beyond his responsibility under Article 7(3) of the Statute he

20 also ordered the crimes in question.

21 I would direct Your Honours' attention to the part of the

22 judgement where the Trial Chamber sets out its preliminary legal analysis

23 for cases as the present one, where an accused is charged concurrently

24 under Article 7(1) and Article 7(3) of the Statute. This is set out in

25 paragraphs 337 through 339 of the judgement. I will not read these

Page 681

1 paragraphs, but the Trial Chamber says in essence that in cases where a

2 person has been found to have ordered the crimes, it would be illogical to

3 find the person also guilty under Article 7(3).

4 And when we then go to the disposition, Your Honours, we see that

5 the Trial Chamber has essentially come to the following conclusion: That

6 although the evidence on record meets a conviction both under Article 7(1)

7 and conviction under Article 7(3) the primary mode of liability the

8 Trial Chamber thought expressed best the criminal responsibility of the

9 appellant was Article 7(1), ordering. And this is an important

10 preliminary observation, because although we don't think this was the case

11 in this case - and this is the Prosecution's submission - if a person has

12 been convicted of ordering crimes, it doesn't really matter whether the

13 agent or the person executing the crime was or was not under the accused's

14 effective control. Technically, there is no requirement that the agent

15 executing the actus reus of the crimes is a subordinate of the person

16 giving the order.

17 Whether or not the agent or the persons executing the crimes are

18 subordinates is simply not pertinent for the mode of liability of

19 ordering.

20 I will immediately concede, Your Honours, that the Trial Chamber

21 in this case appears to have proceeded on the assumption that a strict

22 superior-subordinate relationship is required for the mode of liability of

23 ordering. However, as the Tribunal jurisprudence indicates, this is

24 technically too high a standard, for it is sufficient that the mode of

25 liability of ordering that the accused occupied a position of authority

Page 682

1 and that he used or she used that position to convince or instruct another

2 one to commit an offence.

3 I'll quickly cite the judgements where this principle is set out.

4 It can be found in the Kordic Trial Chamber's paragraphs 829 and 939

5 through 941; it was also confirmed in the Krstic trial judgement at

6 paragraph 601; it was confirmed after that in the Stakic trial judgement

7 at paragraph 445; and also in the trial judgement against Naletilic and

8 Martinovic at paragraph 61; and more recently in the Galic trial judgement

9 rendered on the 5th of December 2003.

10 These considerations notwithstanding, even if - and the

11 Prosecution assumes for the sake of argument - the Blaskic Trial Chamber

12 would have heard in finding that the appellant had effective control over

13 certain HVO troops, which is not the case, the appellant's conviction for

14 ordering should not be vacated. Insofar as the evidence shows that he

15 occupied a position of authority and used that position to convince

16 another one to commit an offence. It is our submission that the passages

17 where the Trial Chamber uses the terms "effective control," "command and

18 control," and "superior responsibility" must be read in that light.

19 Technically, it is too high a standard.

20 Your Honours, a careful analysis of the Trial Chamber's findings

21 show that it is precisely the line of reasoning followed by the

22 Trial Chamber. The Trial Chamber focussed on the accused's orders. It

23 braced particular importance to the orders issued by the accused because

24 these showed, in the Trial Chamber's opinion, whether or not he had

25 ordered crimes or must have considered to have ordered them, what units he

Page 683

1 gave these orders to.

2 I would draw Your Honours' attention to paragraphs 429 through

3 432 of the judgement, where the Trial Chamber, if you like, sets the tone

4 for its analysis of the appellant's responsibility for the crimes in

5 Ahmici. The Trial Chamber starts with examining the accused's orders.

6 In paragraph 433, the Trial Chamber looks at order D267, which

7 was on the face of it addressed to the military police, the Vitezovi and

8 the HVO operative zone brigades. And this was also confirmed at trial by

9 Defence witness Slavko Marin, who was the appellant's own chief of

10 operations, a direct subordinate.

11 The second order the Trial Chamber looked at is analysed in

12 paragraph 434. It's order D268. The Trial Chamber correctly pointed out

13 that this order was addressed to the Viteska Brigade of the HVO and to the

14 military police 4th Battalion. The Trial Chamber noted that these units

15 were asked to ensure that combat readiness be increased to the highest

16 level and that they were to take defensive action. I will not read this

17 paragraph in its entirety, but I would only like to draw the Appeals

18 Chamber's attention to the last phrase of this paragraph: "The accused

19 admitted that action could be taken by virtue of that order in particular

20 to combat terrorist activities." And you will recall, Your Honours, that

21 last week during the additional evidence hearing Witness BA3 confirmed in

22 response to a request from the Bench - and I believe it was a question put

23 to the witness by Judge Guney - that if a person is authorised to order a

24 unit to take defensive action, that person must also be considered

25 authorised to order that unit to take offensive action.

Page 684

1 Let me continue with the Trial Chamber's paragraphs. The third

2 order the Trial Chamber focuses on, in paragraph 435, referred again to

3 planned terrorist activities. And it cites the risk that the enemy is

4 engaging in an open offensive to destroy - and I quote - "everything

5 Croatian." It's addressed to the Viteska Brigade and to the Tvrtko

6 independent units. It asks those units in the event of open attack

7 activity by the Muslims to neutralise them and prevent their movement with

8 precise fire. That order, as the Trial Chamber correctly noted, indicated

9 that the forces of the Milici police 4th Battalion, the Zrinski unit and

10 the civilian police would also take note in combat. Footnote 917 to that

11 paragraph shows that the Trial Chamber based its interpretation of terms

12 used in that order. It says something to the effect of: "In front of you

13 are the forces of the 4th Milici Police Battalion, to the right of you are

14 these and these forces. You will recall, Your Honours, that last week,

15 Witness BA1 confirmed that this language is similar to language that would

16 be used in a western army in order to prevent from troops engaged in

17 combat from shooting at each other.

18 The fourth order the Trial Chamber looked at --

19 JUDGE SCHOMBURG: Sorry. May I -- of course, you didn't invite

20 us, but may I ask you one question on the paragraph you just mentioned?

21 MS. BOELAERT-SUOMINEN: Yes, Your Honour.

22 JUDGE SCHOMBURG: You mentioned paragraph 435, and in the last

23 sentence it reads: "The order closed by saying that the instruction given

24 previously should be complied with, although the Trial Chamber was not

25 able to establish what was the instruction."

Page 685

1 MS. BOELAERT-SUOMINEN: Yes, Your Honour.

2 JUDGE SCHOMBURG: Would you elaborate a little bit on this. It

3 seems to be a little bit difficult, based on this, to identify what was

4 the concrete instruction.

5 MS. BOELAERT-SUOMINEN: Your Honours, I agree, and I don't have

6 an immediate answer to your question, but the purpose of my submission is

7 to show that the language used in these orders was language showing that

8 the appellant issued orders which would, in a normal understanding of the

9 terms, be understood as leading or enabling a unit to take -- to take part

10 in combat operations. That is the purpose of my submission, Your Honour.

11 JUDGE SCHOMBURG: Thank you.

12 MS. BOELAERT-SUOMINEN: In paragraph 436, the Trial Chamber notes

13 that following the ceasefire agreement, the appellant issued an order to

14 the NS Zrinski Brigade to stop fighting immediately. These four orders

15 alone, Your Honours, show in a nutshell that the appellant issued orders,

16 combat orders, offensive or defensive, to a variety of troops, regardless

17 of his arguments about de jure or de facto subordination of the troops to

18 him.

19 In fact, in our submission, Your Honour, these four orders alone

20 support the Trial Chamber's conclusions in paragraph 752. To achieve the

21 political objectives to which he subscribed, General Blaskic used all

22 military forces on which he could rely, whatever the legal nexus

23 subordinating them to him. And one could be forgiven for getting lost in

24 the names of the units at issue, but I would recommend, Your Honours, to

25 look at the tables which were provided in the beginning of the judgement,

Page 686

1 which show that two of the brigades just mentioned in the four orders were

2 regular brigades. They are the Viteska Brigade and the Nikola Subic

3 Zrinski Brigade. Two other units that are mentioned in the

4 orders are special units: The Vitezovi and Trvtko. And then, as I said

5 earlier, the military police seems to be in a category apart.

6 I would also refer Your Honours to a part of the Prosecution's

7 closing brief at trial, where the Prosecution has set out in detail a

8 description of these units. And the reason why I'm mentioning this is

9 that it has been mentioned last week, and also today, that there would be

10 nothing special to the offensives starting with an artillery offensive.

11 One of the witnesses was asked last week for his opinion on that, and he

12 said, "Well, that is a normal military operation. Every military

13 operation, any country, starts with an artillery offensive followed by an

14 infantry offensive."

15 Your Honours, the Trial Chamber was correct in attaching special

16 significance to the evidence that the offensives would start with

17 artillery units, because there is little dispute that in the Central

18 Bosnian Operative Zone the artillery units were placed directly under the

19 appellant's command. That is mentioned in our closing brief, and there's

20 also reference to the transcripts which support this.

21 Of course, Your Honours, the Trial Chamber did not only examine

22 as to whether the appellant, A, had issued orders; B, as to which units

23 these orders were directed to. The Trial Chamber also assessed whether,

24 C, these orders had been executed by the units in question; and D, whether

25 the units had gone beyond the accused's orders.

Page 687

1 Taking again the four orders in question, the Trial Chamber's

2 analysis of point C and D is set out in paragraphs 437 and following of

3 the judgement. I will summarise the elaborate findings made by the Trial

4 Chamber on these questions, and I will return to these paragraphs at the

5 end of my submission.

6 The Trial Chamber concluded that the evidence showed beyond a

7 reasonable doubt that the units the appellant had given orders to had

8 indeed committed the crimes in question; and B, that the crimes were

9 committed pursuant to his orders.

10 At the same time, Your Honours, the Trial Chamber went further.

11 It also examined and dismissed the appellant's arguments that he was not

12 in effective control of the regular units he gave orders to, that the HVO

13 was disorganised, that there were insufficient means of communication.

14 The Trial Chamber's findings on this can be found in paragraphs 442

15 through 448 of the judgement.

16 The Trial Chamber also examined and dismissed the appellant's

17 arguments relating to the special units. He claimed essentially that they

18 were not in his de jure and/or de facto control. The Trial Chamber's

19 findings on this can be found in paragraphs 449 through 456.

20 Your Honours, the Trial Chamber had overwhelming evidence before

21 it to conclude that the appellant should be found guilty under Article

22 7(1) for having ordered the crimes in Ahmici.

23 However, the Trial Chamber went even further and also made

24 findings for two alternative bases of responsibility. The first one is

25 whether there was enough evidence to find that even if one would accept

Page 688

1 that he had not ordered the crimes through direct intent, that he was

2 guilty on the basis of indirect intent. That is to say that he ordered an

3 action, knowing and accepting the risk that such crimes may be committed,

4 as he was perfectly aware of the criminal propensity of the troops he had

5 selected for the attack on Ahmici. The Trial Chamber's findings on this

6 can be found in paragraphs 474 through 476 of the judgement.

7 The other alternative basis of responsibility the Trial Chamber

8 examined was his responsibility under Article 7(3) of the Statute. The

9 Trial Chamber examined whether there was enough evidence to find that even

10 if he cannot be considered to have ordered the crimes through direct or

11 indirect intent, whether there was sufficient evidence on the record to

12 enter a conviction under Article 7(3) of the Statute, on the ground that

13 he knew or had reason to know of the crimes committed and failed to

14 prevent or punish the perpetrators. The Trial Chamber answered both these

15 questions in the affirmative. Its response to the last question can be

16 found in paragraphs 477 through 494.

17 To return, Your Honours, to the preliminary observation which I

18 made in the beginning of my submission: Does it matter whether the

19 Military Police 4th Battalion was or was not in the appellant's chain of

20 command? Your Honours, it would only matter if, contrary to the

21 overwhelming evidence on record, he did not issue orders to them for

22 combat operations. It would only matter if, even if he had issued orders

23 to them, his orders had not been executed. But the overwhelming evidence

24 on record says otherwise. It would only matter if, even if he issued

25 orders to them, and even if the orders were executed on the ground, they

Page 689

1 were not executed pursuant to his orders. But there is overwhelming

2 evidence on record to say otherwise.

3 Your Honours, I could go through the same analysis for the other

4 municipalities and the other incidents the Trial Chamber analysed. I

5 would just like to refer you to paragraphs 516 through 518 of the

6 judgement, where the Trial Chamber summarises its conclusions in relation

7 to the incidents in Vitez and Stari Vitez. The Trial Chamber first

8 analysed the orders given by the accused and then it went over to the

9 analysis for the alternative basis of responsibility I have just

10 discussed.

11 If you'd allow me to say a few words on the indirect standard.

12 The Prosecution -- the indirect intent standard. The Prosecution is in a

13 difficult position, since we haven't heard the appellant's oral

14 submissions on this one, but the appellant has made written submissions on

15 the indirect intent standard used by the Trial Chamber. And I will just

16 restate the Prosecution's response to this, but I would ask for leave to

17 make further submissions on this tomorrow, after we have heard the

18 appellant's submissions on this one.

19 Insofar as we understand the written arguments made by the

20 appellant in the appellant's brief, the appellant, first of all, stated

21 that for ordering, a specific intent requirement is required, its desire

22 to commit a crime. We have responded to that. Ordering does not require

23 a specific intent requirement.

24 The second or alternative submission the appellant seems to make

25 is that the Trial Chamber adopted an erroneous standard of recklessness or

Page 690

1 negligence or in erroneously watered-down dolus eventualis standard.

2 Your Honours, in the Prosecution's submission, the standard

3 adopted by the Trial Chamber for indirect intent, in case one could not

4 say that the accused intended the crimes to be committed, the Trial

5 Chamber in this case adopted a perfectly adequate indirect intent

6 standard. It is a standard which is adopted by this Tribunal. It doesn't

7 resemble maybe the dolus eventualis standard from one or the other

8 national jurisdiction, but the indirect intent standard which has been

9 applied by this Trial Chamber has been confirmed by a series of

10 judgements. And we would also submit it's the indirect intent standard

11 which has also been confirmed by the Tadic and the Krnojelac appeal

12 judgements.

13 And if you allow me just to refer to the paragraphs of the

14 judgements which confirm this standard. The Tadic Trial Chamber adopted a

15 similar standard in paragraph 688. The Celebici Trial Chamber, in

16 paragraphs 327, 328, 378, and 420 through 439. It's a standard which has

17 been set out by this Trial Chamber at paragraphs 278 and 474. It's also

18 the standard which has been adopted by the Kordic Trial Chamber at

19 paragraphs 229, 236, and 386. It's a standard, Your Honours, which also

20 can be found in the Kvocka trial judgement at paragraph 251; in the Galic

21 trial judgement at paragraph 172. And, in our submission, it is a

22 standard which was given by the Tadic appeal judgement at paragraph 220

23 and which was confirmed by the Krnojelac appeal judgement at paragraphs 32

24 and 121.

25 The language used by these judgements may differ, but in our

Page 691

1 submission, the standard is clear: awareness of substantial likelihood

2 that the criminal act or omission may occur, and willing or conscious

3 acceptance of that risk.

4 Your Honours, insofar as we understand the appellant's written

5 submissions, the appellant seems to say that the standard for indirect

6 intent that should be adopted by this Appeals Chamber is the one which

7 followed from a series of cases from one particular national jurisdiction.

8 And I will not elaborate too much on that one today. Our submission is

9 that the standard which comes from that jurisdiction is in theory higher,

10 but in practice, when supplied [sic] to the similar cases as we have

11 before us today, the standard is closer to a recklessness standard, at

12 least a standard that has been adopted by this Trial Chamber.

13 The appellant seems to like, in particular, the case-law where

14 lower-ranking soldiers have been acquitted of attempted manslaughter, in

15 cases where there was evidence that they took evasive action so as to

16 prevent death from occurring. This is, of course, not the situation which

17 is before us here today, and there is no requirement in our jurisprudence

18 that the Trial Chamber makes a finding that the accused hope that a

19 certain result would not occur.

20 And, Your Honours, it is beyond comprehension how a general who

21 orders attacks of a village could justifiably hope that serious violations

22 of international law, such as murders and cruel and inhumane treatment,

23 would not occur.

24 Your Honours, if the appellant makes further submissions on the

25 indirect intent standard adopted by this Trial Chamber, I would seek leave

Page 692

1 to make a further response on this issue tomorrow.

2 I will quickly make a submission --

3 JUDGE POCAR: Ms. Boelaert-Suominen, you want to make further

4 responses, but I mean you yourself are responding to the written

5 submission of the other party. How can you claim to have a right of

6 further response? I mean, it's not in the proceedings we normally follow.

7 MS. BOELAERT-SUOMINEN: I understand, Mr. President.

8 JUDGE POCAR: If you want to elaborate, you can elaborate as far

9 as you want now. But -- and then the appellant will have a chance to

10 reply, but that's it.

11 MS. BOELAERT-SUOMINEN: I understand, Your Honours.

12 With your permission, I would like now to deal with the last

13 point mentioned in my table of contents; it's the question whether or not

14 orders need to be unlawful on their face.

15 During last week's additional evidence hearing and also today the

16 appellant has mentioned that he could not be found guilty as the orders

17 were not unlawful on their face. And as far as we understand the

18 appellant's submissions in this regard, he seems to rely on the

19 jurisprudence coming from the high command case. Your Honours, we have

20 responded to this in our respondent's brief. The high command case is not

21 applicable to the appellant's situation. The requirement that orders need

22 to be unlawful on their face is a requirement which serves to protect the

23 interest of subordinates in the chain of command who are given an order to

24 execute. It is not meant to protect the person who issues the order.

25 The appellant, Your Honour, is not General Wilhelm von Leeb.

Page 693

1 There is no evidence on the record that he would have protested against

2 the unlawfulness of an order.

3 Your Honours, I will now start with the second part of my

4 submission, and it deals with the arguments relating to Article 7(3).

5 Your Honours, the questions which may arise after my submissions on the

6 first part is whether there is a need to address Article 7(3) of the

7 Statute. The Prosecution's submission is that there is a need to do so.

8 As stated earlier, the Trial Chamber in this case used the standard of

9 effective control in relation to the mode of liability of ordering,

10 although this was technically, legally too high a standard. It is a lens

11 through which the Trial Chamber assessed whether the appellant had the

12 authority and used that authority to issue orders.

13 The second reason is that the Trial Chamber, as I mentioned

14 earlier, when you look at the disposition, concluded that on the basis of

15 the evidence before it he could also be convicted under Article 7(3) of

16 the Statute. And the Prosecution wishes to make an alternative submission

17 in this regard.

18 To the extent that this Chamber may be of the view that the

19 Trial Chamber erred in finding that he ordered the crimes, it is the

20 Prosecution's submission that your competent to revise a conviction and

21 find the appellant guilty under Article 7(3) of the Statute for all

22 counts. There is no problem with notice here, as we have demonstrated in

23 our respondent's brief.

24 The appellant made an argument that this should lead to an

25 acquittal on all grounds -- on all counts, on the ground that the

Page 694

1 Trial Chamber would have adopted an erroneous legal standard for the

2 had-reason-to-know aspect. The Prosecution has addressed this in its

3 respondent's brief as well.

4 This case, the trial -- the Blaskic case was run on the basis

5 that under the had-reason-to-know standard for military commanders, a

6 commander could also be found guilty under what is known as a

7 should-have-known theory, where in case a commander did not have the

8 information in his possession, he could be faulted for not having

9 collected this information in the first place. The Blaskic Trial Chamber

10 concluded in theory that the should-have-known theory, which is basically

11 a negligence standard, formed part of the mens rea under Article 7(3).

12 The Celebici Trial Chamber came to another conclusion. This issue came

13 then before the Celebici appeals judgement, and the Celebici Appeals

14 Chamber has decided that the should-have-known theory is not one of the

15 hypotheses a Trial Chamber in this Tribunal can take into account. We

16 have recognised this in our respondent's brief. However, Your Honours,

17 there is no impact on the verdict. There is not a single finding in the

18 judgement that rests on the should-have-known theory. In all instances

19 where the Trial Chamber goes to the evidence of whether or not the accused

20 knew or had reason to know about the crimes, the findings are based on

21 knowledge, direct or circumstantial evidence.

22 Secondly, Your Honours, I would submit that whereas this Trial

23 Chamber adopted the should-have-known theory, should-have-known hypothesis

24 and theory, some of the criteria which it used are also criteria which the

25 Celebici appeals judgement later said met the had-reason-to-know

Page 695

1 hypothesis.

2 For instance, in paragraph 328 of the Blaskic trial judgement,

3 the Trial Chamber says that "If there is information about the tactical

4 situation, the level of training and instruction of the subordinate

5 officers and their troops, as well as their character traits, that this

6 could support a should-have-known theory." The same factors were later

7 cited by the Celebici appeals judgement showing a had-reason-to-know

8 inquiry notice standard.

9 But the main submission on this one is, Your Honours, that there

10 is no problem with finding on the evidence that the appellant could be

11 found guilty under Article 7(3) of the Statute.

12 With your leave, I will now address some of the elements of

13 Article 7(3) responsibility. The appellant often seems to claim that he

14 was not the superior of certain troops as they reported to someone else.

15 We've heard reporting lines to Mostar, Grude, to Kordic. The Prosecution

16 response to these type of arguments is as follows: The fact that certain

17 HVO troops or certain units may have had other masters apart from the

18 appellant himself does not show that the appellant must be exonerated.

19 Our jurisprudence sets out very clearly that in cases where the

20 subordinate perpetrator was under the command of more than one superior,

21 both of them may be held responsible for the same crimes.

22 And I will just refer to one judgement only, because there's a

23 series of judgements which states this. You have the Aleksovski

24 judgement, for instance, at paragraph 106.

25 In this connection, you will recall, Your Honours, that last week

Page 696

1 several witnesses testified that in their opinion Kordic was some sort of

2 political superior, another type of superior to Blaskic. This is entirely

3 consistent with the evidence before the Trial Chamber.

4 In the final analysis, which is a legal analysis, even if the

5 appellant were able to show that certain units reported to Kordic, it does

6 not matter if there's also evidence if the same units also reported to the

7 appellant.

8 Similarly, Your Honours, last week we heard testimony that a

9 superior of the appellant was in a particular region and dealing closely

10 with a subordinate of the appellant. I will not refer to this testimony,

11 but Your Honours there's nothing sinister about a superior of the

12 appellant dealing directly with a subordinate of the appellant if they're

13 in the same region.

14 Your Honours, the question of the appellant's ability to prevent

15 and punish; it's an important question. The appellant's main submission

16 at trial but also on appeal has been that he was not legally competent to

17 investigate and punish crimes committed by certain special purpose or

18 other units. Your Honours, the Tribunal's jurisprudence shows that a

19 superior can be found liable as soon as it is demonstrated that this

20 person was able to take an important step in the disciplinary process; for

21 instance, by submitting a report to competent authorities. The

22 jurisprudence on this is very settled. I would also -- I could cite a

23 number of judgements which confirm this principle, but maybe I can be

24 content with citing one, the Kvocka trial judgement, at paragraph 315.

25 In this connection, Your Honours, you will recall that last week,

Page 697

1 during the additional evidence hearing, the appellant tried to have

2 witnesses comment on the legal standards adopted by this Tribunal to

3 measure effective control. Witness Watkins, for instance, said in

4 response to a question -- the question was as follows: "Are you saying

5 that mere ability to get reports and issue commands is not enough to have

6 effective control?" His answer was: "It's not enough to have effective

7 command and control." Your Honours, with all due respect, it is not up to

8 a witness to comment on the legal standards adopted by this Tribunal. A

9 superior can be found to have effective control if he can take an

10 effective step in the disciplinary process.

11 One can perhaps have some sympathy for why a military

12 professional would feel uncomfortable with this standard. However,

13 ultimately it is up to a trier of fact, the Trial Chamber in the first

14 place, to determine whether the ability to file a report amounts to an

15 effective step in the disciplinary process.

16 In this connection, I would also like to draw the

17 Appeals Chamber's attention to paragraph 338 of the judgement, where the

18 Trial Chamber cites a provision of the Yugoslav armed forces regulations,

19 which in effect adopt a similar standard. And if you permit me to read

20 this, it says, in the English translation: "The commander who knows that

21 the violations of the law of war took place and did not charge those

22 responsible for the violations is personally responsible. In case he is

23 not authorised to charge him and he did not report them to the authorised

24 military commander, he would also be personally responsible." In this

25 case, of course, there's little doubt that this standard was met on the

Page 698

1 evidence.

2 The most effective course of action open to the appellant, the

3 Prosecution submits, would have been not to use troops accused or

4 suspected of crimes for further military operations. Now, I will turn to

5 this issue later, Your Honours. But for present purposes it may be

6 sufficient to note that the appellant, even when he claimed that he

7 suspected the military police of having committed the crimes in Ahmici

8 used the same troops for the Busovaca operations on the 17th and the 19th

9 of April and also for the operations in Grbavica in September 1993. The

10 same goes for the Vitezovi. Even if the appellant claims that he

11 suspected that the Vitezovi had committed the crimes in Vitez and

12 Stari Vitez, the evidence on record shows that he continued to deploy them

13 throughout the summer.

14 The appellant insists that the evidence on record -- the new

15 evidence on record shows that these units contained criminals.

16 Your Honours, this was not new evidence. This evidence was before the

17 Trial Chamber. The simple question is: If he knew, why did he continue

18 to use them for military operations? He could have filed a report or he

19 could have decided not to redeploy these troops.

20 More importantly, Your Honours, the evidence on record as to the

21 appellant's legal powers to prevent and punish all HVO troops is abundant.

22 We have not heard much about these statutory and regulatory sources of the

23 control of the appellant, but they are set out in detail in the

24 Prosecution's closing brief, Book 2, Part 3, Section 5. We do not have

25 the time to go over all these sources in detail, but I would like to

Page 699

1 summarise for you what I regard as the most important points of these

2 regulatory and other sources of control, in the light of the appellant's

3 arguments on appeal.

4 First of all, the fact that the appellant had these disciplinary

5 and other powers was supported by evidence on the record. I would

6 especially refer to Prosecution Trial Exhibit P38, tab 2, and the other

7 exhibits mentioned in the Prosecution's closing brief.

8 There was also compelling testimony on this issue coming from what

9 I would call HVO insiders. There was one court witness whose name I

10 cannot mention, but I will return to this person in the closed session

11 part of my submission.

12 There was also a Defence witness, Mato Tadic. He was an official

13 in the Ministry of Justice of Herceg-Bosna, and also, unless I'm mistaken,

14 a deputy prosecutor of the military disciplinary court.

15 And there was also Defence witness Slavko Marin, the appellant's

16 own chief of operations, who confirmed on record the appellant's legal and

17 another authority to prevent and punish. The protected court witness,

18 Your Honours, confirmed that the appellant did have the competence to

19 discipline members of the military police and members of special purpose

20 units.

21 In the text of the rules of the military discipline themselves --

22 and I'm referring, Your Honours, to Article 52 of Exhibit 38, the

23 Prosecution Exhibit 38 at trial, tab 2, and I'm just going to read the

24 excerpt. It says that: "Rules of military discipline applied either to

25 units which were subordinate to the operative zone commander or units

Page 700

1 which are within the area under the operative zone commander's authority."

2 This was a simple text, and the meaning of this text was confirmed by the

3 witnesses who testified on this issue at trial.

4 The regulations, which are discussed in our closing brief,

5 obligated the appellant to preserve and collect evidence in case of

6 evidence of crimes. He was also required to arrest persons whom he

7 suspected had committed war crimes. And on top of that, Your Honours, he

8 also had de facto powers of a disciplinary nature which exceeded the legal

9 powers but which he continually exercised. There is evidence on record

10 that persons were complaining about the appellant exercising disciplinary

11 powers which he did not possess according to the regulations.

12 Your Honours, the appellant also had the competency to appoint

13 and dismiss subordinates, and this was a power which he exercised

14 frequently. You will also find in our closing brief a discussion of this,

15 an example of this, when the appellant dismissed Stjepan Tuka, because as

16 far as the evidence shows, this commander refused to introduce war into

17 the Kiseljak region. The appellant did not hesitate to dismiss this

18 commander.

19 Your Honours, it is not a necessary prerequisite for superior

20 responsibility that the commander had the sole power to take all necessary

21 steps to prevent -- necessary steps to punish the relevant subordinates.

22 In this connection, Your Honour, you will recall that last week witnesses

23 were asked about what the lack of communications meant for effective

24 control and whether command always brings control.

25 Witness Watkins responded to this question. For effective

Page 701

1 military operations, there are three Cs, as were thought in the Western

2 armies, that is, communications, command, and control. Witness BA1

3 responded: Command does not always bring control.

4 Your Honours, my learned opponents' attempts to elevate military

5 jargon to legal standards were dismissed by the Trial Chamber, and they

6 should also be dismissed, in our submission, by the Appeals Chamber.

7 In any event, the Trial Chamber in this case thought that the

8 three Cs were in place in the days following, and even prior to, the 15th

9 of April, when the appellant's troops attacked 20 villages in the space of

10 less than five days. The Trial Chamber's findings on this issue are set

11 out in paragraphs 386 through 393 of the judgement. I will not go into

12 this.

13 Similar findings can be found in relation to Vitez and Stari

14 Vitez. And you will recall, Your Honours, that last week one of the

15 witnesses confirmed that for an operation of this scale, in his opinion -

16 and he was a professional - 15 to 20 days' prior planning was required.

17 And the Prosecution would also recall that there was ample

18 evidence before the Trial Chamber showing that the appellant had the

19 communications necessary, despite temporary physical separation. And I

20 refer to the evidence put before the Trial Chamber in Book 2 of the OTP's

21 closing brief, Part 3, Section 2, IV.

22 Your Honours, the Trial Chamber in this case did what the

23 Tribunal of Judges needs to do: assess whether the evidence meets the

24 legal standards prevailing in this Tribunal in order to find a person

25 guilty under Article 7(1) and 7(3). It duly considered the arguments put

Page 702

1 forward by the Defence and rejected them for the reasons set out in the

2 judgement. The Trial Chamber looked at the evidence and dismissed the

3 relevance of this military terminology not because they would not be

4 significant in military terms but because in legal terms, in view of the

5 standards this Tribunal need apply, they were relevant.

6 I would refer Your Honours to paragraph 520 of the judgement,

7 where the Trial Chamber dismisses the distinctions which the appellant

8 sought to make between the notion of temporary subordination and that of

9 permanent attachment in relation to the Vitezovi. The Trial Chamber

10 simply noted that he had the ability to give them orders and that he had

11 the ability to receive reports and to report on them regarding potentially

12 criminal activities.

13 The Trial Chamber's legal analysis, in relation to the

14 appellant's link, for instance, with the Vitezovi units, I submit, is

15 correct from a humanitarian's perspective as well. This is what the

16 commentary of the ICRC on Article 87, paragraph 1 of Additional Protocol I

17 has to say about the responsibility of a commander over troops which are

18 not normally under his command. The commentary says - I'm just quoting an

19 excerpt - "A commander may for a particular operation and for a limited

20 period of time be supplied with reinforcements consisting of troops who

21 are not normally under his command. He must ensure that these members of

22 the armed forces comply with the conventions and the protocol as long as

23 they remain under his command." And this commentary was endorsed by the

24 Celebici appeals judgement in paragraph 237.

25 With this, I believe, Your Honours, we can safely leave the field

Page 703

1 of military jargon and return to applying the jurisprudence of this

2 Tribunal.

3 Your Honours, I would like now to go into the closed session

4 because I want to make some submissions on testimony that was in closed

5 session, with your permission.

6 JUDGE POCAR: We'll go into private session.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

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17 (redacted)

18 (redacted)

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25 (redacted)

Page 704












12 Pages 704 to 710 redacted, private session














Page 711

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 [Open session]

22 THE REGISTRAR: We are in open session, Your Honour.

23 JUDGE POCAR: Judge Schomburg.

24 JUDGE SCHOMBURG: A very brief question: The third-last

25 paragraph you mentioned from the judgement, and you can read it on today's

Page 712

1 transcript, page 147, line 9 to 10. There it reads that "In paragraph 474

2 of the judgement, Defence Witness Marin confirmed that the situation got

3 worse after the appellant so-called issued preventive orders."

4 Reading this in context, I was desperately looking for some kind

5 of evidence supporting this, and I would ask you if you could assist me in

6 this search, because in its entirety the paragraph reads: "Admittedly the

7 accused did give an order on 18 January 1993 for the attention of the

8 regular units of the HVO, the independent units, and military police force

9 battalion, instructing them to make sure that all soldiers prone to

10 criminal conduct were not in a position to do any harm."

11 Then comes your sentence: "However, that order remained without

12 effect, even though the accused issued a reminder on 6 February 1993. On

13 the contrary, according to the Witness Marin, the situation deteriorated

14 thereafter," without any concrete quote or supporting evidence. And it

15 continues: "The Defence also presented an order issued by the accused on

16 17 March 1993 requiring the commanders of all HVO brigades to identify the

17 members who were prone to criminal conduct."

18 Please assist me with this. Do you have any evidence with the

19 deluge of paperwork we have before us, supporting this testimony of

20 Witness Marin that the situation, in fact, deteriorated?

21 MS. BOELAERT-SUOMINEN: Your Honour, thank you for your question.

22 I am unable to assist you immediately on this question. But the manner in

23 which we read the assessment made by the Trial Chamber in this case is

24 that -- is as follows: The Trial Chamber had before it several so-called

25 preventative or humanitarian orders issued by the appellant. This was in

Page 713

1 evidence before the Trial Chamber.

2 We also know that the appellant has adduced some of these

3 so-called preventative or humanitarian orders on appeal. The manner in

4 which I believe the Trial Chamber dealt with this evidence is that it took

5 into account that these orders were issued, but in the end the

6 Trial Chamber came to the conclusion that most of these orders were issued

7 after an event had happened, after the appellant had been ordered, for

8 instance, by his superiors to look for criminals, or after there had been

9 a humanitarian outcry. There is very little evidence on record that the

10 appellant issued genuine preventative orders.

11 Your Honours, also - and this is what the Trial Chamber -- I

12 can't find the paragraph right away - but the Trial Chamber in the end

13 came to the conclusion that the appellant never ensured that his so-called

14 preventative orders were followed up. If he had, he would not have

15 continued to redeploy these troops for further operations.

16 But if your question goes to whether there's any support in

17 concreto for Slavko Marin's testimony, with kind permission, I will return

18 to your question tomorrow.

19 JUDGE SCHOMBURG: Thank you. And in addition to this, the

20 question remains: It is still your opinion that those orders mentioned

21 there should be from your point of view seen as more or less sham orders?

22 MS. BOELAERT-SUOMINEN: Your Honours, with your permission, it is

23 a difficult question, because, of course, I have not been involved in the

24 trial. But I can only repeat my impression, which is based on the

25 assessment of the Trial Chamber, that as many accused before this

Page 714

1 Tribunal, there is always some evidence, for instance, that some accused

2 helped some victims from the other side. In this case, the accused had

3 gone through military training. He had followed courses from the

4 Red Cross. He knew what he had to do. But in the end, he went ahead,

5 regardless of whether or not crimes were committed, regardless of whether

6 or not his subordinates or units he gave orders to complied with these

7 orders. Thank you.


9 JUDGE POCAR: Well, I think we should break now. It's quarter to

10 6.00. We can perhaps break for 20 minutes and have still almost one hour

11 to go.

12 --- Recess taken at 5.44 p.m.

13 --- On resuming at 6.07 p.m.

14 JUDGE POCAR: Please be seated.

15 Well, I give the floor to the Prosecution. Mr. Farrell? Or again

16 Ms. Boelaert-Suominen. Please.

17 MS. BOELAERT-SUOMINEN: Good afternoon, Your Honours. I will take

18 just one minute of your time to provide the Prosecution's response to the

19 appellant's ground of appeal relating to the defective indictment, insofar

20 as Article 7(1) and 7(3) is concerned: The Prosecution adopts its written

21 submissions in total on this issue, but we only refer to a additional

22 authority, which can be found in the Krnojelac appeal judgement which was

23 rendered recently. And in paragraph 138 of that judgement, the Chamber

24 has confirmed that it is vital for the indictment to specify at least on

25 what legal basis of the Statute an individual is being charged. And then

Page 715

1 it says in brackets either Article 7(1) and/or 7(3). Without wishing to

2 oversimplify matters, Your Honours, this is just an additional authority

3 for the position taken by the Prosecution in its respondent's brief. Also

4 refer to other authority.

5 Your Honours, I would like to make it clear that the Prosecution

6 does not accept that the Trial Chamber in this case decided that the

7 indictment would be fatally defective. The Trial Chamber, in the decision

8 of the 23rd of May, 1997, stated that it would not fail to draw all

9 necessary consequences if it would come to the conclusion that the

10 appellant would not have been able to present an effective legal defence

11 on all counts. Two years on, the Trial Chamber came to the conclusion

12 that there was no prejudice and that the Defence had been able to present

13 an effective legal defence, Your Honours.

14 I would also refer you to the case of Colak v. Germany, before the

15 European Court of Human Rights, which goes to a point which we have drawn

16 attention to in our respondent's brief.

17 In this case, European Court of Human Rights confirmed that an

18 accused can derive no rights from comments made during trial proceedings.

19 If these comments are not accompanied by a statement that a certain charge

20 or a count would be withdrawn. The case is in our book of authorities,

21 Your Honours. We rely on this case to state that likewise, to the extent

22 that the appellant claims that the Presiding Judge would have misled him

23 regarding the question of whether this was a 7(1) case or a 7(3) case, the

24 comment cannot be relied upon.

25 This concludes the Prosecution's oral submissions in relation to

Page 716

1 the defective indictment issue, Your Honours. I thank you.

2 JUDGE POCAR: I thank you, Ms. Boelaert-Suominen.

3 And Mr. Farrell, you have now the floor.

4 MR. FARRELL: Thank you, Your Honours. If you can't hear me, I'm

5 going to be moving with some material, so please let me know.

6 I'll be dealing with the -- some of the factual matters, not all

7 of the factual matters that were raised by my learned colleagues, and I

8 will be dealing shortly with the allegations of Rule 68 violation.

9 But before I do, there's something quite puzzling about this case.

10 It's not simply the contradictions of the appellant's position in some

11 respects, where he can issue humanitarian orders but he can't issue combat

12 orders, where he can compel people to do things but he can't compel them

13 not to do things, where he doesn't have the military police actually

14 attached to him, but he's issuing orders to them anyway. Despite all

15 those puzzling aspects of the Defence case, there's another one that in my

16 respectful submission is one that you'll have to keep in mind when you

17 assess the evidence in light of the Defence position, and that is that the

18 one person who would know whether or not Dario Kordic was interfering with

19 his work was affecting his ability to carry out combat operations, was

20 affecting his ability to properly utilise troops would be the commander of

21 the Central Bosnia operative zone, and that is Colonel Blaskic.

22 As you listen to the -- as you listened to the evidence last week,

23 and as you assess it this week, I'd ask that you keep in mind that it was

24 Colonel Blaskic who was with BA3 when he was brought by the commander of

25 the Vitezovi to his office to discuss whether or not BA3 would be

Page 717

1 released. It was Colonel Blaskic who was at the checkpoint when the

2 Convoy of Joy was stopped and when General Duncan spoke about the fact

3 that the police that were present wouldn't allow the convoy through

4 because those police reported to Dario Kordic.

5 Did the appellant testify at trial? Being present at the very

6 incidents that he's now relying on, did he testify at trial that he could

7 not combat his troops because of the interference of Dario Kordic? No.

8 Did he testify when he explained what happened in Ahmici that it was

9 because of the intervention of Dario Kordic? No. Did he testify when he

10 explained the incident with BA3 that he couldn't prevent Kraljevic from

11 taking steps because Kraljevic didn't report to him? No.

12 I'll come to that testimony, but what he said is, in his

13 testimony, when he describes the very incident that the Defence have put

14 forward to you, where BA3 goes to his office and Blaskic has to make a

15 telephone call, what's his testimony? His testimony is that we solved it.

16 We, not Dario Kordic, not others outside of my command and control, but

17 we.

18 When you consider the evidence that you've heard, when you

19 consider the submissions, when you consider all the documents, consider

20 the fact that the person who knew, the one person who was in a position to

21 raise this issue, to say: All the evidence you've heard, this is evidence

22 where I had no control over my subordinates, was never raised. I would

23 respectfully submit that that's very telling and that as you assess all

24 the evidence and as you listen to the submissions, what you're left with

25 is not new evidence. Colonel Blaskic has not put forward new evidence.

Page 718

1 It's very interesting that the actual evidence of the appellant is not

2 that there was problems with Kordic. There's none of that on the record.

3 The actual evidence of the appellant is not that it was Dario Kordic. The

4 evidence of the appellant was that he couldn't control it because they

5 were assigned to Mostar.

6 What you're hearing is actually out of the mouths of his lawyers,

7 his lawyers telling you that there was other evidence that should cause

8 you to reconsider the evidence that was before the Trial Chamber. But all

9 I'd ask you to remember is when you're assessing that evidence, remember

10 the words of the appellant himself. He did not complain about

11 Dario Kordic. In fact, the one time where he was asked specifically, did

12 Dario Kordic commit the crime in Ahmici, he said: I don't know. He's not

13 in the chain of command. He doesn't have military authority. So I just

14 don't know.

15 Is that consistent with the position that's being taken now with

16 the outrage expressed by the fact that Dario Kordic seems to be everywhere

17 in Central Bosnia, having control over every crime? With respect, it's

18 clearly not.

19 When you consider the evidence, consider the fact that what they

20 were doing was working together. Clearly, there's no doubt that

21 Dario Kordic at certain times exerted his influence and power. That's

22 taken for granted. The evidence was before the Kordic trial, the evidence

23 was before this trial. General Duncan testified in this trial, in the

24 Blaskic trial, that at the Convoy of Joy, the police at the checkpoint

25 said that they would not follow Blaskic's orders.

Page 719

1 If you look at General Duncan's testimony, Blaskic was there.

2 Blaskic was present with him at the time. So we ever hear Blaskic saying:

3 Here, this is the perfect example. I have to come forward and in my eight

4 weeks of testimony I am going to raise this? We hear it from the mouths

5 of the lawyers. We don't hear it from the mouth of the appellant, and I'd

6 ask that you keep this in mind as you're assessing the value of this

7 evidence.

8 The first thing I'd like to address is the short legal submissions

9 that were made by Mr. Hayman, and I'll simply address them briefly.

10 The appellant has indicated that there should be a different

11 standard in this case than in all other cases that relate to errors of

12 fact. I simply submit that much of the argument that he made was made

13 when we argued the Kupreskic appeal. In the Kupreskic appeal, we heard

14 seven witnesses, as we have heard here. Certainly, much less documents,

15 but many, many more additional evidence motions. There are dozens.

16 And in that case, the Appeals Chamber determined that the standard

17 was that the burden is on the appellant to establish that no reasonable

18 tribunal of fact could have reached a conclusion of guilt based on the

19 evidence before the Trial Chamber, together with the additional evidence

20 admitted during the proceedings.

21 I respectfully submit that it's not for this Court to look at all

22 the evidence on the trial record de novo. It's a very interesting twist.

23 The appellant's counsel says because of the fact that you will have to

24 decide issues of credibility in relation to the six witnesses, you

25 actually should exercise your authority to hear the whole case de novo.

Page 720

1 In other words, determine issues of credibility in relation to all the

2 other witness. Well, if it's going to be difficult to assess the six in

3 light of all the other evidence, I surmise it would be much more difficult

4 to assess the credibility of all the others that you haven't heard. And

5 it's not outside this Court's jurisdiction and certainly the exercise of

6 its authority to determine matters when you don't hear witnesses. The

7 courts in this Tribunal certainly hear matters through Rule 92 bis.

8 THE INTERPRETER: Kindly slow down for the interpreters.

9 MR. FARRELL: There are 70 documents before you. Of those 70

10 documents, you have not heard any witnesses. Many of the documents that

11 are before you come from intelligence services, and the Defence relies on

12 them extensively. Many of them are unsourced, many of them are unsigned.

13 But you're in a position, and of course the parties trust the Court, to

14 assess the value, the credibility, and the weight to be given to those

15 documents.

16 Issues relating to the credibility or the weight to be given to

17 those documents can be made without calling witnesses, in light of a

18 number of other factors, whether they're corroborated, whether they're

19 internally consistent, the timing in which they're made, the normal

20 factors that you would consider as Judges.

21 The appellant also indicates that a second reason why this Court

22 should apply a different standard is because of the alleged Rule 68

23 violation. With respect, they misconstrue the issue. The issue is what

24 to do with the evidence when it's before you, not does the manner in which

25 it comes before you or the reason why it was not available at trial affect

Page 721

1 the standard you should apply. With respect, that would be the wrong

2 approach.

3 If this Court determines that there is a Rule 68 violation, it has

4 to determine whether or not that violation withheld evidence or if the

5 evidence which is now before you could have had an impact on the verdict.

6 That can be done, fortunately, in our system because of Rule 115. That

7 evidence can be brought before you and you can make an assessment and this

8 Court can sanction the Prosecution or take steps if it feels there's a

9 Rule 68 violation. But that's different than the standard you would apply

10 when the evidence is brought before you, in my respectful submission.

11 I'll now turn to the allegations regarding Rule 68.

12 In the Prosecution's submission, it's somewhat difficult to

13 actually assess what the allegation is in relation to Rule 68. We're

14 certainly aware of the allegations in relation to Witness Watkins, and

15 we're aware that there are allegations that B1 - sorry - BA1, BA3, BA5,

16 and the Witness Watkins are Rule 68 violations.

17 If I recall Mr. Hayman's submissions correctly, he said, and there

18 are a number of documents in the second Rule 115 motion which we've

19 identified. Well, with respect, it would certainly be an attempt to

20 address any allegations of Rule 68. But if that's the submission of the

21 appellant, then the onus is on him, I would respectfully submit, to at

22 least identify what the -- what the Rule 68 violations are so the

23 Prosecution can address them.

24 Secondly, the appellant only raised three specific incidents in

25 his appeal brief regarding Rule 68 violations, and they weren't -- the

Page 722

1 only one that was raised in relation to the material I've just pointed out

2 was BA1. He didn't raise in his appeal brief the other matters.

3 In the last sentence of the section, he indicates that he

4 incorporates by reference all other submissions and all other violations

5 of Rule 68. With respect, if he didn't put them in his appeal brief, he

6 didn't brief them and indicate which ones he was relying on for the

7 purposes of the appeal. It's difficult for the Prosecution to try to

8 respond to these very serious allegations that Mr. Hayman made so

9 eloquently before you this morning. But then at the end, he didn't

10 identify which passages he was relying on, didn't identify which

11 documents, and didn't identify what the prejudice was.

12 I will try to address the issues that are raised in relation to

13 the identified BA1, BA3, BA5, and Mr. Watkins. Of course, the Prosecution

14 is at your disposal, if you request written submissions afterwards, if

15 there are any other matters raised in the reply by the appellant which I

16 have not addressed.

17 In relation to BA5, there's an allegation of a Rule 68 violation

18 in the failure to disclose the evidence of BA5. As you'll recall, BA5 was

19 the person who testified last week who was in Stari Vitez and who

20 testified in the Kordic trial.

21 According to my records, BA5's statement was disclosed in 1996 to

22 the appellant, and this was noted in the Prosecution's response to the

23 second Rule 115 motion, attached to our second -- our response to the

24 second Rule 115 motion are documents demonstrating that BA5's statement

25 was disclosed at that time to the Defence.

Page 723

1 His date of testimony, as far as I can ascertain, is after the

2 judgement in this case. So the statement was disclosed, he testified

3 after the judgement; so therefore, any Rule 68 violation certainly didn't

4 occur at trial.

5 I also would note that in relation to BA5, on the motion under

6 Rule 115, this Chamber admitted BA5's anticipated testimony in the

7 interests of justice. And I interpret that to mean, in light of the other

8 aspects that were admitted, that it was found that it was available -- the

9 evidence was available to the appellant at the time. So if the statement

10 was disclosed during trial, the statement is the substance of the

11 testimony, and the Court has found that the witness was available and

12 could have been called by the appellant during trial, there certainly was

13 no violation of Rule 68 at trial, and to the extent that there was a

14 violation in the sense that immediately after trial it wasn't disclosed to

15 the appellant, there certainly doesn't appear to be any prejudice at this

16 stage.

17 Now, I'll turn to BA3. BA3, as you'll recall, testified last

18 week, and he had given a statement, as I understand, in 1995. This

19 statement was disclosed to the Defence in November 1996. And, as I'm sure

20 my colleagues will recall, there was an e-mail exchange in 1996 back and

21 forth about BA3's statement because the Defence was of the view that it

22 appeared there was a page missing. There was four or five letters that

23 went back and forth, and the full statement, as the Prosecution had it,

24 was disclosed to the Defence in 1996 in this trial.

25 BA3 testified on the 19th, 25th, and 26th of January, 2000. As

Page 724

1 far as the Prosecution can ascertain, any violation of Rule 68 arose from

2 January 26th, 2000 until disclosure. But the statement and the substance

3 of the evidence for BA3 was disclosed back in 1996. Once again, though it

4 doesn't necessarily alleviate the Prosecution, clearly, of its Rule 68

5 obligations, this Court found, on its determination under Rule 115, that

6 this evidence was available to the Defence but granted the admission of

7 this material in the interests of justice.

8 Now I'll turn to BA1. It's my understanding that BA1 gave a

9 statement in August 1996, and he testified on the 8th of November, 1999.

10 According to the records that I've been able to ascertain, I think it's

11 clear the Prosecution did not disclose the statement of BA1 to the Defence

12 during trial from the date that it was taken, which was in 1996. I think

13 that's clear on the record, and the Prosecution acknowledges it.

14 The question then becomes: When did the appellant obtain the

15 transcripts of BA1, and what prejudice arose? The appellant obtained the

16 transcripts on their own - that's clear - it appears in December 1999.

17 For their own good due diligence they were able to obtain it because it

18 was public session material during the Kordic trial, and they obtained it

19 by going to a website and obtaining the material and taking down the

20 evidence of BA1. And then they subsequently, after they filed their

21 notice of appeal, they filed a motion with the Court asking that the

22 Prosecution be found in violation of Rule 68 because it hadn't disclosed

23 certain information. It was evident on the motion that they actually had

24 the material since before the judgement came out. The judgement came out

25 in March 2000. They had the material, which they obtained on their own,

Page 725

1 in December 1999.

2 The Appeals Chamber rendered a decision on this matter. And this

3 is in relation specifically to BA1's testimony. The Appeals Chamber

4 states that -- and this is in the decision of September 26, 2000,

5 Prosecutor versus Tihomir Blaskic, decision on the appellant's motions for

6 the production of material, suspension or extension of the briefing

7 schedule, and additional filings. I think, Mr. President, you were the

8 only one sitting on the Bench at that time.

9 In paragraph 37 of that decision, it states: "The Appeals Chamber

10 notes that in respect of the Prosecution's second reason, the appellant's

11 counsel knew of the existence of the evidence that might exculpate the

12 appellant soon after the evidence was given in open court at the Tribunal,

13 yet he remained silent before the Trial Chamber until the production

14 motion was filed on appeal. There has been no explanation from the

15 appellant as to why he remained reticent, in spite of this information. A

16 fact concerning the question as to whether the appellant was capable of

17 ordering certain units of the HVO to attack villages and towns should have

18 alerted any diligent counsel so that he or she would bring it to the

19 attention of the Trial Chamber."

20 In the next paragraph, the Court has to address the situation as

21 to whether or not the Prosecution is alleviated of its Rule 68 obligation

22 when material is found in the public domain. And the Court, quite

23 understandably, indicates that: "The Appeals Chamber considers that the

24 Prosecution may still be relieved of the obligation under Rule 68 if the

25 existence of the relevant exculpatory evidence is known and the evidence

Page 726

1 is accessible to the appellant, as the appellant would not be prejudiced

2 materially by this violation."

3 It appears what the Court is saying is it is a violation. It

4 clearly is a technical violation. That seems to be the case here in

5 respect to BA1. But what the Court finds, this Court, relating to BA1, in

6 this instance, has found that the appellant is not materially prejudiced

7 by this violation. So, granted, if the Court is of the view that

8 the -- excuse me -- the Court has found, I think it's fair to say, in the

9 decision in September 26th, that there was a violation of some sort, a

10 technical violation, by the failure to disclose it. But they balance that

11 with the fact that it's in the public domain, the appellant knows about it

12 and has access to it and can't come back which is what they did three

13 months later and bring a motion alleging a violation of Rule 68 and

14 seeking some sort of remedy.

15 I would note, if I may just go into closed session for one minute.

16 I'm going to refer to the witnesses.

17 JUDGE POCAR: We'll go to private session now.

18 [Private session]

19 (redacted)

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21 (redacted)

22 (redacted)

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24 (redacted)

25 (redacted)

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Page 732

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18 [Open session]

19 THE REGISTRAR: We are in open session.

20 MR. FARRELL: Thank you, Madam Registrar, for noticing.

21 The Trial Chamber found that on the 16th of April, the Croatian

22 forces, commanded by Colonel Blaskic, attacked in the municipalities of

23 Vitez and Busovaca. They attacked Vitez, Stari Vitez, Ahmici, Nadioci,

24 Santici, Pirici, Navoci, Putis, and Donja Veceriska. Now, the only real -

25 I say "real" in quotation marks - the only new "real" additional evidence

Page 733

1 that's put forward by the appellant to claim that the Trial Chamber was

2 unreasonable in its finding that the HVO initiated an attack on that

3 morning are documents from the ABiH army itself and the appellant's own

4 war diary. Now, if the appellant is issuing preparatory orders the night

5 before for an all-out attack in 20 places, it's not necessarily

6 inconsistent to imagine that he's going to tell his duty officer to ensure

7 that what's written in the war diary is consistent with his preparatory

8 orders. I can't imagine he's going to initiate an attack throughout

9 Central Bosnia and tell his operations officer to record that the ABiH is

10 on the defensive and is being attacked by the HVO, while still issue

11 orders which he said are orders to reflect that the HVO may be attacked.

12 And you'll recall, and I'll come back to it, the evidence of BA3

13 in that regard, and the troops that he described that was on the axis. In

14 fact, BA3 gave a very interesting answer. In the hypothetical, as to

15 whether or not, if he was in Colonel Blaskic's shoes and he received an

16 intelligence report that the ABiH army was moving through an axis route to

17 engage in an attack the next morning on Ahmici, he indicated that he would

18 do the same thing. But when asked whether or not it was in fact true that

19 this factual circumstance existed, he went on to explain that the members

20 of the territorial force defending the area were poorly manned, had

21 hunting rifles.

22 There is ample trial evidence in support of the findings, and I

23 won't go through it, but there are a number of witnesses and there's a

24 number of international -- both local and international, and a number of

25 reports as to the initiation of the attack by the HVO on the morning of

Page 734

1 the 16th.

2 All the witnesses that came before you have spoken about this

3 issue. BA3, BA5, and even BA2 indicated that it was the HVO that

4 initiated the attack.

5 The appellant has attempted to rely on ABiH documents in an effort

6 to demonstrate that in fact it was the ABiH that initiated an attack. In

7 fact, I reviewed their submissions in this regard, and I'm going to refer

8 to their documents 12 and 13 of the fourth additional evidence motion.

9 And I was uncertain as to whether they were relying on them to indicate

10 that there were ABiH forces in Ahmici or whether they were saying that

11 this demonstrates that there was an attack.

12 In referring to document 12 -- excuse me, Your Honours.

13 [Prosecution counsel confer]

14 MR. FARRELL: I'm sorry. I was wondering whether the AV people

15 could put the computer evidence on the screen so that it might be visible

16 to Your Honours. I'd just try to put PA12 and PA13 on screen so that you

17 wouldn't have to find them. I'm sorry, yes, the Defence Exhibits 12 and

18 13.

19 It doesn't appear that we can get them on screen, so I'll try and

20 explain them to you. If you like, I can try and put one on the ELMO.

21 That may be of assistance.

22 Hopefully you'll be able to see the document. This document, as I

23 understand from the Defence's fourth additional evidence motion, was put

24 forward to indicate that Blaskic's order at 1.30 in the morning on the

25 16th - well, which is the night of the 15th, the morning of the 16th - but

Page 735

1 this order by Colonel Blaskic was a preparatory order, and it was just the

2 flipside of this order; in other words, both the ABiH and the HVO were on

3 alert and, therefore, they both were issuing preparatory orders.

4 If I could just ask, sir, if we could go to see the top of the

5 document. That's great. Thank you.

6 The Defence have put it forward for the proposition that this is a

7 preparatory order, the same as Blaskic's, and it just shows that both

8 sides are preparing in case of anything occurring.

9 If you look at the first sentences -- the first sentence, Your

10 Honours, it says: "In accordance with the unfolding of events, and in

11 connection with the attack by the HVO unit on units of the BiH -- or the

12 BH army in the zone of responsibility of the 325th Brigade, and the newly

13 arisen situation, the corps command is taking measures."

14 Then, in the next paragraph, there's comments about having to be

15 in readiness to assist the BH forces in villages, including Ahmici. And

16 then in the first subparagraph, it indicates that a company has been sent

17 to the Ahmici village sector with the task to organise and carry out a

18 march and arrive in the Ahmici village sector to assist their forces.

19 This, in my respectful submission, does not indicate that the ABiH

20 attacked the HVO, and it doesn't indicate that it's some type of

21 preparatory order similar to the ones referred to by the appellant. The

22 first line indicates that there's been an attack by HVO.

23 The other thing which is interesting about this order is if you --

24 you can see on the screen that it says the "16th of April, 1993." And the

25 appellant has indicated that this would demonstrate that on the same day,

Page 736

1 at the same time, that the ABiH is taking the same preparatory measures

2 for possible attacks. What hasn't been translated from the B/C/S is, in

3 fact, the date of this order, when it was sent. The B/C/S has a

4 date-stamp on the third page, which indicates that it was sent on the 17th

5 of April, at 2.12 in the morning, at 2.12 a.m., which is completely

6 consistent with the ABiH responding after an attack on the 16th. This

7 matter was sent to the forces on the 17th.

8 If I can ask that Defence Exhibit 13 be put on the ELMO, and then

9 I'll finish, Mr. President, after reference to this.

10 The Defence also rely on this order from the ABiH for the same

11 purpose. If you look in the first paragraph, it says: "Based on the

12 latest developments and conduct of the Croatian Defence Council units, and

13 with a view to precluding any surprise or initiative-taking by the HVO,"

14 and it says, "in keeping with the order of the 3rd Corps" -- it then

15 refers to a number, 02/33-872. That is the number of the previous order,

16 which went out on the 17th.

17 It says: "In keeping with the previous order" -- and the number

18 there, if you flip back -- if you had document 12 before you, you would

19 see that document 12 is actually that document with that order number,

20 that actually went out on the morning of the 17th. So once again, though

21 it says the 16th on the morning, it obviously has to be sent after

22 receiving the previous order.

23 Within the body of the order, without going through it, it does

24 indicate that one company has the task of reaching the village of Ahmici

25 as soon as possible and joining in combat operations.

Page 737

1 JUDGE POCAR: May we break now?

2 MR. FARRELL: Of course, Your Honour. Thank you.

3 JUDGE POCAR: By way of a compromise reached in the Bench, we will

4 start tomorrow morning at 8.45.

5 The Prosecution is still entitled, according to my calculation, to

6 one hour and 50 minutes --

7 MR. FARRELL: Thank you.

8 JUDGE POCAR: -- for its submissions.

9 The hearing stands adjourned.

10 --- Whereupon the hearing adjourned at 7.00 p.m.,

11 to be reconvened on Wednesday, the 17th day of

12 December, 2003, at 8.45 a.m.