Tribunal Criminal Tribunal for the Former Yugoslavia

Page 738

1 Wednesday, 17 December 2003

2 [Appeal Proceedings]

3 [Open session]

4 [The appellant entered court]

5 --- Upon commencing at 8.48 a.m.

6 JUDGE POCAR: Please be seated.

7 Good morning to everybody. Mr. Registrar, can you call the case,

8 please.

9 THE REGISTRAR: Good morning, Your Honours. This is case number

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

11 JUDGE POCAR: I thank you.

12 Can everybody hear me? I think it's the case. So we can resume

13 our hearing. We will continue with the submissions of the Prosecution. I

14 give the floor to the Prosecution.

15 MR. FARRELL: Good morning, Your Honours. Thank you,

16 Mr. President. Good morning to my learned colleagues.

17 I will continue with my submissions from yesterday, and we'll deal

18 with certain factual matters that arise on the basis of the additional

19 evidence.

20 After I'm finished, and I will be looking at the -- responding,

21 I'm sorry, to the appellant's submissions regarding Ahmici and Stari Vitez

22 specifically. Then there will be two more counsel who will make

23 submissions on behalf of the Prosecution. Ms. Howick will follow me and

24 then after that will be Ms. Jarvis.

25 If I could start -- yesterday I left off by showing you two

Page 739

1 documents. Those two documents were the 12th and the 13th exhibit to the

2 appellant's fourth additional evidence motion. I just want to clarify, in

3 fact correct one thing. I think in my attempt yesterday to present my

4 submissions on both of them to you, just before the end of the day I got

5 them actually reversed and out of order. I had indicated that document

6 number 13 was the later of the two orders, document 12 was the first order

7 and document 13 followed. Actually, they are reversed, if I understand it

8 correctly. Document 13 is the prior order, and it appears to be an order

9 from the 7th Muslim Brigade, which is a subordinate unit of the 3rd Corps,

10 and it indicates -- it's dated April 16th and it indicates that the Muslim

11 forces had been attacked and that the 7th Muslim Brigade was being sent to

12 reach the village of Ahmici as soon as possible to join in the combat

13 operations.

14 I had erroneously indicated that the -- this was the second of the

15 two, after looking at it again last night. This is the first order, then

16 document 12 is the second order, which is on the 17th, just so that

17 there's no confusion.

18 And the document 13 indicates at some point on the 16th that the

19 7th Muslim Brigade was sent to join in the defence of the attack and in

20 the combat operations in Ahmici. It's my understanding that this was put

21 in by the Defence to indicate that there was combat in Ahmici on the 16th.

22 I think we already know from BA5 that the Territorial Defence in Ahmici

23 was engaged in an attack and he indicated, as my friend acknowledged, that

24 there were some members of the Territorial Defence in Ahmici. He

25 described they were defending it with hunting rifles.

Page 740

1 Yesterday, in his submissions, if I understand them correctly, my

2 learned colleague indicated that the Trial Chamber from paragraphs 407 to

3 410, had accepted that there was no evidence that the BH army or other

4 armed Muslim resistance was in Ahmici. Simply -- and I think he probably

5 relies on these documents to indicate to the contrary that there was an

6 armed resistance in Ahmici. I just asked you, in response to that

7 comment, to review the Trial Chamber's judgement at 407 to 410, as in my

8 respectful submission that's not what the Trial Chamber finds. It

9 acknowledges that there was a Territorial Defence in Ahmici, and it cites

10 the evidence for the proposition that there was no military justification

11 to attack Ahmici, not to say that there wasn't, in fact, Territorial

12 Defence in Ahmici.

13 Having clarified that matter, I'd like to move on to my

14 submissions relating to the attack on Ahmici and respond to some of the

15 submissions made by Mr. Hayman.

16 One of the major issues that was raised by the appellant was

17 whether or not the military police were under the command of Blaskic on

18 the morning of the 16th, when the attack started, at 5.30 in the morning.

19 The Prosecution asks that you, when considering this issue, you keep it in

20 the context of the rest of the evidence. When my learned colleague

21 referred to my submissions from a year ago last November about this case

22 is not about Ahmici, I stand by those submissions. This case is about an

23 attack in a number of municipalities, in approximately 20 villages, from

24 the 16th onwards, and it's a coordinated, planned, and orchestrated

25 attack, and the Trial Chamber was completely correct in referring to this

Page 741

1 to determine whether or not the commander of the Central Bosnia operative

2 zone was involved.

3 Now, the appellant indicates that the military police were not

4 attached to him at the relevant time. What we do know from the trial

5 record is on the 15th of April, at 3.00 in the afternoon, the chief of the

6 General Staff issued an order attaching the military police and the

7 Vitezovi to the appellant. The appellant indicates that was -- they were

8 attached in the event of an attack, and until an attack, they were not

9 attached to him for combat operations.

10 He claims that they were attached to him on April 16th, at 11.45.

11 According to him, this is when the military police themselves actually

12 attached themselves to him. It's because at that point in time the

13 appellant claims that Ljubicic contacts him because the HVO are under

14 attack in Ahmici. Now, it's important to consider this in the context of

15 his evidence. Once again, the dependency is that the HVO attack Ahmici.

16 I'm sorry, the ABiH attack Ahmici. Once the HVO is under attack by the

17 armed forces of Bosnia-Herzegovina, the military police, I presume,

18 contact him at 11.42 to tell them, "We're engaged in combat operations and

19 we would like to attach ourselves to the Central Bosnia operative zone."

20 It's this dependency on the HVO being the victims of an attack by the

21 Bosnian government which, once again, in my submission, cannot be at all

22 substantiated on the facts.

23 So according to the appellant, despite the fact that he received

24 an order from the chief of staff that they were to attach themselves in

25 the event of attack, despite the fact that he was the commander of the

Page 742

1 zone, and despite the fact that he claims he was woken at 5.00 a.m. by his

2 chief of staff and told that there was an attack, it's not until over

3 sixth and a half hours later that the subordinate unit, the military

4 police, tell him when they're going to attach themselves to him.

5 Now, we know, based on document P12 -- P12 is a document we now

6 have before us and P12 is the document that was issued, at least the date

7 on the order is 1.30 in the morning on the morning of the 16th. On the

8 morning of the 16th, at 1.30 in the morning, we now have an order from

9 Blaskic to the head of the military police. Now, why would Blaskic issue

10 a combat order at 1.30 in the morning to the military police if they're

11 not attached to him yet? And it is a combat order. It's tasking for

12 combat purposes, and it talks of repelling their attack during your

13 counter-attack.

14 It then speaks in this order, at 1.30 in the morning, to the

15 military police: "Strong enemy forces are in front of you, and forces of

16 the Zrinski Brigade are to your right, and the HVO Vitez is to your left."

17 The time of readiness is 5.30 in the morning on April 16th, the

18 exact time as the attack started.

19 What did the appellant, Blaskic, testify to about issuing this

20 order? This order we now have before us as PA12, the order to the

21 military police? Blaskic testified at trial that he never issued any

22 written orders to the military police that evening, prior to the combat

23 operations. You heard yesterday of the three orders that he did say he

24 issued. They were Defence Exhibits 267, 268, and 269. These were the

25 orders that were presented on the evening -- the 15th.

Page 743

1 Now, during his testimony on the 8th of March, Colonel Blaskic

2 says, in response to a question by Mr. Nobilo.

3 "Q. Apart from these orders, did you issue to the

4 military police, on 15 April 1993, any other orders?

5 A. No."

6 Why is it that he would indicate at trial that he didn't issue any

7 other orders to the military police and that he didn't issue any orders

8 other than the three that were noted? Is it possible because the order

9 actually could have been construed by the Trial Chamber as a combat order

10 to the military police at a time when he claims that they weren't attached

11 to him for that purpose?

12 We also know on the record that on the 15th of April, in the

13 afternoon - and it's reflected in the war diary - that the appellant met

14 with the commander of the 4th Military Police, Pasko Ljubicic, at

15 approximately 5.00 in the afternoon. He met with him at the same time as

16 the Vitezovi commander, the commander of the Tvrtko 2, which is a special

17 purposes unit. In his testimony, he acknowledges that he spoke with them

18 at that time and explained to them and issued the orders, I think it was

19 267 and 268, orally. Those orders actually hadn't been sent, and he

20 issued those orders orally to them at the time.

21 If I could just -- I'd like to refer to the testimony of one of

22 the witnesses. If I could just go into private session for a minute or

23 two, please.

24 [Private session]

25 (redacted)

Page 744












12 Page 744 redacted, private session














Page 745

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 [Open session]

15 THE REGISTRAR: We are in open session, Your Honours.

16 JUDGE POCAR: Thank you.

17 MR. FARRELL: Thank you.

18 Now, we'll move to what the appellant said about the

19 Vitez Brigade, and their involvement. Now, in response to a question by

20 Judge Shahabuddeen at the trial, Blaskic answered to Judge Shahabuddeen:

21 A. The Vitez Brigade did not get any tasks from me in

22 the area of Ahmici, nor, to the best of my knowledge, the commander of the

23 Vitez Brigade.

24 Now, I'd like to refer to Prosecution rebuttal Exhibits 6, 7, 8,

25 and 10, which, in my submission, clearly show that when the appellant said

Page 746

1 that the Vitez Brigade did not get any tasks from me in the area of

2 Ahmici, nor did the commander of the Vitez Brigade, that it was clearly

3 false.

4 I've asked that Prosecution rebuttal Exhibit 6 be put before you,

5 and I understand if you go to the computer evidence button, it should

6 appear on your screen, Your Honours.

7 Now, you'll see that this is at 10.00 in the morning of April the

8 16th. I've tried to highlight or sidebar, I guess, the passage. If it's

9 legible. This is on April 16th, at 10.00 in the morning, and it's a

10 report on the situation in the area of responsibility. Now, you'll see

11 that the first line says: "Pursuant to your order number" - and that

12 order number is a sequence of numbers coming from Colonel Blaskic - "of

13 April 16th, we inform you of the following."

14 Therefore, this is not a random report on his area of

15 responsibility. He's responding to a request before 10.00 a.m., from

16 Colonel Blaskic, to report on the situation. So this isn't the first

17 contact, clearly. There's a previous contact at some point in time; we

18 don't know when.

19 And then in the report, in the second highlighted passage - I'll

20 see if I can just get it enlarged - it says: "Our units are advancing on

21 Donja Veceriska, whose fall is imminent, and in Ahmici."

22 Now, the appellant has argued that this is simply a report in the

23 area of responsibility and that our forces mean all forces in the area.

24 Why would the commander of the Vitez Brigade be giving a report about

25 Ahmici when his forces are not there? And when the forces that are there

Page 747

1 are the 4th Military Police, who are not attached to him yet?

2 If I could go to Prosecution Exhibit 7. I'll just commence until

3 the document can come up on the screen.

4 This is a document dated April 16th, at 10.35. It should be

5 coming up now on screen. The document at 10.35 is from Colonel Blaskic to

6 the commander of the Vitez Brigade. The subject is engagement in further

7 combat operations, and it refers to activities which are to be done in

8 connection with the report of the commander of the Vitez Brigade and the

9 number listed is 02125-1093. This is the order number of the previous

10 document I just showed you, PA6. So this is a response to Cerkez's report

11 on the situation.

12 The order says: "The following shall be done in connection with

13 your previous report." And then it says: Capture a number of villages,

14 and one of them is Ahmici, and the order is that they be captured

15 completely at 10.35 in the morning.

16 The appellant has not explained in his testimony why he would be

17 issuing an order to the Vitez Brigade to capture Ahmici completely when he

18 hasn't even been informed by Pasko Ljubicic at 11.42 that the military

19 police wish to be subordinated to him because of the events in Ahmici.

20 If I can go to Prosecution rebuttal document 8, please. This is a

21 document from April 16th, and we know by the ordering numbers that this

22 document is sometime before 2.00 in the afternoon on April 16th. It's a

23 report regarding undertaking further combat operations at sometime before

24 2.00, and the commander of the Vitez Brigade reports back that the village

25 of Ahmici is 70 per cent done. This is in relation to combat operations

Page 748

1 in Ahmici by the Vitez Brigade.

2 If I can now turn to the last one, number 10. Now, this is a

3 document dated April 16th, at 2.00 in the afternoon. In the first

4 paragraph in this order or report from Colonel Blaskic to the commander of

5 the Vitez Brigade, Mario Cerkez, it says: "Regarding your report number

6 02-25-12/93." That's the order number of the document I just showed you

7 as PA8, and it's the order number of the document in which Cerkez is

8 reporting back that Ahmici is 70 per cent done. That's the document

9 that's referred to by its order number. And in this document, which is at

10 2.00 in the afternoon, at paragraph 2, it says: "Continue the activities

11 described in article 1 of your report." Well, article 1 of the previous

12 report includes the fact that the village of Ahmici is 70 per cent done

13 and that the Vitez Brigade has arrested 14 men, who are accommodated in

14 weekend houses in Nadioci.

15 When considering the involvement of both the Vitez Brigade and the

16 military police in Ahmici, and very importantly, the involvement of

17 Dario Kordic, I'd ask that you take note of the war diary. The

18 appellant's logbook or war diary, which he submitted as his exhibit. On

19 the 16th of April, there are 13 contacts in the space of about 11 hours,

20 10 hours, between Blaskic and Dario Kordic, and there are eight contacts

21 or references from Pasko Ljubicic to the commander of the Central Bosnia

22 Operative Zone.

23 In light of this evidence, and in light of the evidence at trial,

24 I submit that it's clearly not unreasonable for the Trial Chamber to have

25 found that the order D269, which was admitted at trial - this is the order

Page 749

1 at 1.30 in the morning to the commander of the Vitez Brigade,

2 Mario Cerkez - it's not unreasonable for the Trial Chamber to have found

3 in the circumstances that that was a combat order.

4 If I could now move to a few issues that were raised by the

5 learned counsel for the appellant regarding his submissions in Ahmici, and

6 I'd just like to comment on a few of them.

7 First of all, the appellants relied on the first exhibit to the

8 second Rule 115 motion, and that's the ministry of the interior report,

9 and it's called the MUP report. And it's been relied on extensively in

10 the written submissions and was referred to yesterday by the appellant,

11 because that document describes a meeting on the night of the 15th at

12 Dario Kordic's house. That's the only document we have before you, and we

13 haven't -- and all it is is an investigative report, which, if I recall,

14 is many years after the fact. And there's just one thing I wish to bring

15 to your attention, and it's included in the submissions in any event, but

16 when you're considering this investigations report years later, note that

17 the report is partially based on the information provided to the Ministry

18 of the Interior investigators from counsel for Blaskic. Now, this is a

19 report after he was convicted. And in the appellant's reply brief, in

20 support of their second motion to admit additional evidence, registry

21 pages 13897, there's a recognition that the MUP report appears to

22 incorporate information the investigators obtained from interviewing

23 Mr. Nobilo.

24 With respect, unless the underlying evidence is brought forward,

25 this report is of little evidentiary value.

Page 750

1 The appellant also relies on the MUP report to point out that

2 there was an individual named Cicko who was involved in this crime, and

3 the appellant testified at trial that he was a criminal and that he's the

4 type of person that was engaged in this. You heard testimony from one of

5 the witnesses last week who referred to this individual as well.

6 Now, the MUP report refers to this individual Cicko as

7 Miroslav Bralo. Now, I won't place the evidence before you, but I'll tell

8 you where to find it, if you're so interested. This was referred to by

9 Mr. Harmon last week. Which is that at OTP Exhibits 188 to 191 - these

10 documents are under seal, so I won't place them or go into the documents

11 themselves - but there was the creation of the Alfa Force, and the

12 commander was an individual named Kris, Kris with a K, and Cicko was the

13 deputy commander.

14 Now, you heard evidence last week from a witness who talked about

15 the presence of this Cicko at the -- at a meeting on the night of the

16 15th, in preparation of the attack. Colonel Blaskic's testimony, at

17 T20139, was that he thought that Miroslav Bralo, or Cicko, was actually in

18 prison for murder on April 16th, and he testified that Cicko was a

19 deranged person.

20 Colonel Blaskic also testified that he received information on the

21 25th of May, 1993, that this individual was one of the perpetrators in

22 Ahmici. He further testified: "If a name like that existed, then I'm

23 certain that steps to remove him from the HVO" would have been taken.

24 Eight days later, after receiving this information on May 25th,

25 1993 that Cicko was a perpetrator in Ahmici, Blaskic was informed, if you

Page 751

1 look at Prosecution Exhibit PA34, it's a report from Mario Cerkez

2 that -- as to activities, and at the end of the report, it says that Cicko

3 was used in military operations, and the report also indicates that

4 operations took place along with the Jokers, the Vitezovi, and the

5 Vitez Brigade.

6 Lastly, this same Cicko that the appellant are pointing the finger

7 at and relying on in the MUP report is referred to in the Trial Chamber's

8 judgement at paragraph 472. At the end of paragraph 472, the last

9 sentence, the Court indicates that: Witness A, who is a witness who

10 testified in closed session, Witness A said that he heard a person named

11 Cicko speak in these terms with regard to the events of April 16th:

12 "Everyone is washing their hands now as regards Ahmici, but we all know

13 that Blaskic has ordered that no prisoners of war were of interest to him;

14 only dead bodies."

15 It's the same Cicko that he's receiving a report on on July 2nd

16 who he, as the evidence at trial indicates, he was aware of in the Alfa

17 Force prior to this, and the year wasn't in 1993 and who is now being

18 blamed in the MUP report for the events.

19 Now, the Defence have argued in their appeal brief that the Court

20 could not rely on this piece of evidence because it was hearsay from

21 Witness 2, without getting into a full argument, it's Prosecution's

22 submission that hearsay is clearly admissible, and certainly Witness 2's

23 hearsay evidence was certainly something that the Trial Chamber could rely

24 on, much more so than a MUP report. At least Witness 2 was present to be

25 cross-examined.

Page 752

1 Sorry. I indicated that Witness A, not Witness 2. Sorry.

2 Yesterday my learned colleague indicated that the British

3 Battalion, when they went to Ahmici, did not see any massacre or

4 comparable activity. Now, I take it, though I may be wrong, but I take it

5 that this is the reference to when the British Battalion went with one of

6 the witnesses who testified last week to Ahmici in an armoured personnel

7 carrier, or Warrior. Now, as you know from the witness's evidence, I

8 won't go into the evidence, but you'll know from the evidence where the

9 location of that witness was, and that witness was not actually in the

10 centre of Ahmici in the sense of the area where the MOS was and wasn't

11 permitted to go any further than the area that he located.

12 A British army officer who testified on the 20th November 1997

13 indicated that he was in an armoured personnel carrier on the afternoon of

14 April 16th. It's impossible to tell from his testimony whether he was in

15 the armoured personnel carrier with BA3 or whether he was separate. It's

16 not clear. But he indicates that in the time that he drove around in the

17 early afternoon of April 16th, that he could see civilian houses on fire,

18 houses destroyed, bodies and civilians that ran up, I think a total number

19 of 13 that climbed into the back of his armoured personnel carrier to be

20 taken to safety.

21 You'll recall the position of BA3, and he indicates that he only

22 found out 10 to 15 days later. This is conveniently the exact time period

23 that the appellant put forward as an approximately time period when he

24 found out.

25 (redacted)

Page 753

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 It's a situation report as of 2000 hours, so approximately 8.00.

11 On the fourth page of this report, it talks about the -- I'm

12 sorry. On the screen, I've only been able to get a part of it, but it

13 talks about relations with the HVO, and it indicates in the line above it

14 that in the zone of responsibility of the 3rd Corps, the HVO units are

15 attacking the Muslim population and the units of the BH army.

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 754

1 Now, accepting that this document is a document from the 18th of

2 April, 1993, from the command of the 3rd Corps of the Bosnian army, I

3 would respectfully submit that BA3 either knew or was in a position to

4 know, as of the night of the 17th or the morning of the 18th, as to what

5 happened in Ahmici, not ten to 15 days later, or if he did, it's certainly

6 inconsistent with the knowledge of the command.

7 Another point raised in the appellant's submissions was the video

8 clip they showed from Mr. Martin Bell at a press conference on the 27th of

9 April. This was 11 days after the crimes were committed in Ahmici. It's

10 important to note that both Kordic and Valenta, the two extremists,

11 according to the appellant, were both present at the press conference, and

12 they were there when there was an agreement on behalf of the HVO to

13 initiate an investigation. In cross-examination, Mr. Bell acknowledged

14 that the actual reporting prior to April 27th, including his reporting,

15 drew attention to the HVO in the area and had a global effect on the HVO.

16 He acknowledged that news reports were bringing pressure on Croatia and

17 that they were embarrassed by the situation and the pressure.

18 He indicated as well that he was aware that Margaret Thatcher

19 actually cancelled the trip to Croatia at that time. An exhibit, OTP

20 Exhibit 532, which is a report, was submitted to Mr. Bell, in which

21 Mate Boban, who was the president of the HB-HZ and the supreme commander

22 of the HVO, had said that due to Ahmici, EU ministers have almost

23 announced sanctions against Croatia. He acknowledged that the pressure

24 being brought to bear on Croatia was actually a matter of concern for the

25 HVO. It's respectfully submitted that when Blaskic, Kordic, and Valenta

Page 755

1 were at this press conference on April 27th, and when Blaskic spoke, it's

2 hard to imagine that he would have said something in front of this press

3 conference in light of this international pressure other than he was

4 horrified by it and that something would take place, an investigation.

5 And I'll come back later to comments which Colonel Blaskic made

6 after this press conference about Ahmici and ask that you keep those in

7 mind when you're looking at Martin Bell's testimony.

8 In concluding my submissions on Prosecution's response to the

9 submissions by Mr. Hayman, my learned colleague, I'll just ask you to take

10 note of the additional evidence which is filed. I think Mr. Hayman did a

11 good job of trying to reconcile the additional evidence that the

12 appellants have put forward, but despite his eloquence, I submit they

13 can't be reconciled.

14 If you look at Exhibit 1, the first document put forward in the

15 second motion upon which the appellant relies to indicate that Blaskic is

16 not responsible for Ahmici, it indicates that certain members of the

17 forces on the ground, enraged by the death of their comrades, took

18 revenge; indicates these are essentially rogue elements in an unplanned

19 operation on the 16th.

20 Exhibit 4 doesn't give any indication as to what happened, doesn't

21 indicate that they were rogue elements acting out of revenge, but simply

22 just states that Kordic and Kostroman are responsible. Now, these two

23 documents are from the intelligence sources, and the dates on the front of

24 the document's cover are February 1994 and March 1994.

25 Exhibit 13 says that the Jokers revolted because three of their

Page 756

1 members were killed. Once again, this is an explanation of revenge, not

2 that it was planned. I'd ask that you keep in mind the appellant's

3 testimony himself when he indicates that this event in Ahmici had to be

4 planned.

5 If the appellant's submission is that the events in Ahmici had to

6 be planned -- and this is his testimony. His testimony is that at trial,

7 and only at trial, interestingly, the appellant indicates that he realised

8 after hearing the evidence at trial that in fact the Bungalow had not been

9 attacked that morning. At trial, that's when he first realised it, when

10 he heard evidence of witnesses who appeared. He also acknowledged that

11 this event would have had to have been planned and orchestrated, and

12 planned by someone higher than the commander of the 4th Military

13 Battalion. Well, how is he relying on documents now, months after the

14 attack, which indicates that it was a revolt, that it was a revenge? His

15 own testimony refutes the very documents that he's relying on.

16 Exhibit 14, which is the one that indicates that Mr. Cerkez is a

17 coward by nature, and therefore would not be involved, seems to be

18 directly refuted by the very documents that were signed by Colonel Blaskic

19 himself. And as well, Exhibit 14 refers to the crimes in Ahmici as a

20 revenge to the killing of HVO soldiers and the capturing of their

21 commander. Once again, this isn't, first of all, what happened in fact,

22 and it's certainly not what's relied upon by the appellant now, in light

23 of BA2's testimony.

24 The MUP report gives a completely different version than the other

25 reports relied upon by the appellant, and it indicates that the crime in

Page 757

1 Ahmici was planned, orchestrated, and ordered by political figures, while

2 at trial the appellant indicates that the crimes were committed by the

3 military police from higher orders, but he himself could not say that it

4 was Kordic.

5 With respect, it's unclear which of these the appellant is

6 actually relying on. It's a little bit of anyone but me defence. And it

7 sets forward positions which are inconsistent among themselves and

8 inconsistent with some of the appellant's own testimony at trial. With

9 respect, this evidence, inconsistent amongst itself, certainly is not

10 something that would even cause the Trial Chamber reasonable doubt, and it

11 certainly isn't anything by which this Appeals Chamber, on the standard,

12 could conclude that no reasonable Trial Chamber on the evidence before it

13 could have convicted.

14 Those are my submissions in relation to Ahmici. I will now move

15 to submissions on Stari Vitez.

16 In light of the fact that I'd hoped to finish within an hour to an

17 hour and 15 minutes to allow us to finish on time today and allow my

18 colleagues -- what I will refer you to is certain documents in relation to

19 Stari Vitez, which in the Prosecution's submission show that the Vitezovi

20 were acting under the command and control of the appellant. My colleague

21 Ms. Jarvis will make submissions on one aspect of Stari Vitez, but I'll

22 try and limit my submissions on Stari Vitez to the documents I'd like to

23 refer you to, and these are additional evidence documents.

24 You'll recall that the attack on Stari Vitez was on April 16th,

25 the same time as the attack on Ahmici. It was against the Muslim

Page 758

1 population. It was planned and well organised. It's the conclusion that

2 HVO troops, including HVO regular troops - and there was testimony last

3 week to that effect - participated in the attack on Stari Vitez and that

4 the Muslim civilian population was targeted, as found by the Trial

5 Chamber, paragraph 507.

6 It's also important to remember that the headquarters of

7 Colonel Blaskic was only 300 metres away from Stari Vitez. There's -- I

8 think it's Exhibit 79 at trial, it's called the distance project, and in

9 it, you can see, if you look at it, that the area is extremely small.

10 Blaskic's headquarters is 300 metres from Stari Vitez. That

11 Mario Cerkez's headquarters, as indicated by a witness last week, is less

12 than -- I think it's a hundred metres, I think he even said 50 metres from

13 the headquarters. This is where hundreds of people were detained

14 afterwards.

15 I think if you look at the exhibit as well, you'll see that Ahmici

16 is something like six minutes by car from Blaskic's headquarters.

17 Now, in relation to the attack, we have the submissions of the

18 appellant, which I won't go through, but which indicate that the HVO was

19 attacked by the Muslim forces on the morning of the 16th, that in an

20 answer to a question by Judge Rodrigues, he expressed his view publicly

21 that they cannot undertake any operations whatever on Stari Vitez because

22 of the need to guarantee the security and safety of the population in

23 Stari Vitez, and that was in relation -- his comments were in relation to,

24 as I recall, the July 18th attack. He also indicates that he did not

25 approve or receive a request to use artillery on the morning of the 16th

Page 759

1 of April, but you'll also note that the record indicates there was

2 artillery and Blaskic himself testified that he controlled the use of

3 artillery.

4 I'm just asking for an exhibit to be brought on the screen.

5 Now, you'll recall that the Defence has indicated, in paragraph

6 514 of the judgement, was that in relation to the attacks on

7 April - specifically, I think, that's in reference to April 18th - the

8 defence was that the Vitezovi alone committed the crimes, and the Vitezovi

9 refused to recognise the relationship of subordination to Blaskic. It was

10 referred to by the Trial Chamber as the defence at trial.

11 Now, the first document I just want to bring to your attention is

12 the 20th of January, 1993. It's the subordination of the Vitezovi to

13 Colonel Blaskic at the time. Now, this is in January 1993, long before.

14 Then I would like to refer to Prosecution appeal rebuttal Exhibit

15 24. This is a report sent by the commander of the Vitezovi on the 15th of

16 April, 1993. It's a protest to the Bosnian army about the treatment of

17 some of its members. And at the very end, it states: "Our unit will

18 continue to carry out all orders issued by Colonel Tihomir Blaskic and to

19 be in the single system of command and control."

20 This is on the 15th of April. Now, the appellant has noted that

21 it's not sent to Blaskic. This very document is not sent to Blaskic. As

22 you may recall from the testimony of a superior officer in the HVO, his

23 testimony was that it wasn't necessary, that it wasn't irregular and

24 wasn't outside the chain of command if the units informed the Main Staff

25 of their operations. And it would seem a little bit odd that they're

Page 760

1 indicating that they're carrying out the operations and orders issued by

2 Colonel Blaskic, if the Defence would rely on the fact that it wasn't sent

3 to him to refute that.

4 Now I refer to Prosecution Exhibit 37. This is a commendation by

5 Colonel Blaskic to the Vitezovi for the role in "... defending our

6 territories and common interests of the Croatian people." It says: "Your

7 role is great." He commends the soldiers of the special-purpose unit, the

8 Vitezovi, on April 18th, 1993, shortly after the attacks on the 16th of

9 April on Stari Vitez and the attacks of 18th of April on Stari Vitez.

10 If I can now refer you to Prosecution Exhibit 25. You'll recall

11 the testimony of the appellant's witnesses about the need for command and

12 control and reporting, though there might be communications, there's not

13 necessarily control; though there might be command, you would have to look

14 for things such as reporting to determine whether or not there was

15 actually the evidence of control.

16 This is a report by the commander of the Vitezovi on April 26th,

17 1993. Now, if I could just refer to -- the top of the document reads:

18 "In the treacherous enemy attack by the army of BH..." Once again it

19 appears that the-- I'm sorry. Let me begin again. "In the treacherous

20 enemy attack by the army of BH," in other words the Muslim forces, "on

21 everything that is Croatian, on orders from the commander of the Main

22 Staff of the Croatian Defence Council Central Bosnia Operative Zone,

23 Colonel Tihomir Blaskic, I carried out the following combat operations."

24 Now, if you look down the list, it's from April 16th to April

25 25th. You'll also recall that the crimes committed in Vitez and

Page 761

1 Stari Vitez were on April 16th and April 18th, and the crimes committed in

2 Gacice were found by the Trial Chamber to have finished on the 20th.

3 The Defence at trial was that the Vitezovi did not report to

4 Blaskic and would not subordinate themselves to Blaskic for combat

5 activities.

6 On April 16th, it lists that at 5.00 in the morning - this is the

7 same time as the attack orders, not defensive orders - Stari Vitez, that's

8 Old Vitez, they conduct an operation there, fighting is still in progress.

9 They refer to the village of Novaci and that the centre of town is

10 cleared. I note that they use the word "cleared." They don't use the

11 word "ethnically cleansed" in their report to Blaskic as to their

12 operations on the 16th. And the testimony at trial is that, for example,

13 the Trial Chamber's findings at paragraph 499, in relation to the 18th of

14 April is that -- and I'll just ask you to refer down to the 18th of April

15 in the report. It says: Village of Novaci cleared. Novaci is an area in

16 the town of Vitez, and you're aware of the fact that there were crimes

17 committed at this time.

18 If you look at the 16th of April, the 18th of April, and the

19 reference in the 19th of April to Gacice, each one of them uses the word

20 "cleared." The evidence at trial was that it wasn't a military operation.

21 And in fact, the Defence doesn't claim that the Vitezovi conducted

22 exclusively military operations. They claimed at trial that the Vitezovi

23 committed the crimes but were not under Blaskic's subordination.

24 Now, in relation to the report on April 18th that they were

25 operating in the area of Vitez, Stari Vitez, I won't take you to it, but

Page 762

1 in the war diary on April 18th, Blaskic calls the commander of the

2 Vitezovi at 1408 and indicates that artillery support is on its way. At

3 1755, approximately 6.00 in the evening of the 18th, the war diary

4 indicates that Kraljevic, the commander of the Vitezovi, came to see

5 Blaskic to report on the operation and that one of his soldiers had been

6 killed. Why is he coming to report to Blaskic on the 18th when he refuses

7 to subordinate himself to him? Why does he feel the need to tell him that

8 a soldier has been killed? Blaskic indicates he has no relationship with

9 the Vitezovi during this relevant time.

10 The reporting orally on the 18th to Blaskic, as indicated in the

11 war diary, and this written report indicating that they're acting under

12 the combat orders of Colonel Blaskic refute any claim that the Vitezovi

13 were not operating pursuant to command and control of Colonel Blaskic.

14 There's a number of references in the war diary to operations that

15 take place, and I simply note them because the Defence has indicated that

16 it's important to see whether there's reporting back to determine control.

17 For example, on April 25th, at 2125 in the war diary, Blaskic orders the

18 commander of the Vitezovi to send 20 men to Busovaca. That's in the war

19 diary. On the evening of the 25th, that Blaskic orders Kraljevic to send

20 20 men to Busovaca.

21 If you look on the report on April 25th, 1993, when they

22 report -- they're reporting on April 26th as to the operations that

23 conducted -- took place by the Vitezovi in the days previously. Reporting

24 on April 25th, they indicate that they restored the line on the Kuber

25 elevation and Busovaca, my understanding is SO means municipality,

Page 763

1 fighting in progress. It's consistent with the war diary at 2125, when

2 Blaskic orders Kraljevic to send 20 men to Busovaca.

3 The next exhibit, though I won't put it up on screen, is the

4 456/32. This is on May 7th, 1993. It's been referred to already, but

5 it's the report by Blaskic to the supreme commanders of the armed forces

6 in Mostar, and he indicates, as has already been put before you, that

7 command and control function properly, and all missions proceed in a

8 planned fashion, according to orders, with detailed knowledge of the

9 situation, full coordination and control.

10 There's no reason for Blaskic not to tell his subordinates if he

11 has problems with the units who are under his control. And this report on

12 May 7th, it lists the Vitezovi as part of the Central Bosnia Operative

13 Zone HVO forces.

14 Now, there's a passage in this document which was referred to in

15 cross-examination by my learned colleague in cross-examination that there

16 was some difficulty with the battalion in Fojnica, and it was put to one

17 of the witnesses that, well, this must demonstrate that there's problems

18 of command and control. It indicates in the document that all units are

19 carrying out their task except for the battalion in Fojnica, who are

20 taking a neutral position vis-a-vis the Muslims.

21 First of all, the report doesn't refer to any of the units that

22 are committing crimes. What it refers to is a commander in Fojnica who

23 refuses to attack the Muslims. And you'll see, in relation to - and I can

24 take you through them if you wish - to a number of exhibits at trial,

25 exhibits at trial which range from Prosecution Exhibit 456/45 to 456/54,

Page 764

1 would indicate that the commander of the Fojnica Brigade refuses to comply

2 with an order to attack the Muslims, as he indicates that there's no

3 conflict with the Muslims in the area.

4 In fact, there's a statement by the Muslim and Croat community

5 leaders in Fojnica - this is OTP Exhibit 491 - where they complained about

6 their replacement of the commander, this is the replacement of the

7 commander by Blaskic, because the previous commander had maintained peace

8 and a common existence between the Croatian and Muslim people. It's just

9 quite telling that the one problem that he reports as to commanders is

10 someone who won't follow his orders to attack Muslims, not the ones who do

11 and commit crimes.

12 And lastly, I'll refer to Prosecution Exhibit 38. I think it

13 should be up on your screen in computer evidence. This is dated June 1993

14 and it's a report once again to the head of the Croatian community. It's

15 a report to the Defence department, and it's a report to Blaskic's

16 superior, the chief of the Croatian Defence Council,

17 Major General Petkovic.

18 Now, what's happening at this time is that the Croatian Defence

19 Council is considering reforming the Vitezovi and actually incorporating

20 them into a regiment, into the Bruno Busic regiment. And does Blaskic

21 then indicate in the report in June 1992 that it would be a very good idea

22 that their rogue unit, operating solely under Kraljevic, taking no

23 responsibility for Blaskic's orders, and that he's been attempting for a

24 long time to have the Vitezovi reformulated into a different unit under

25 his command?

Page 765

1 Let's just see what the document reads. The first paragraph says:

2 "Today, I received the commander of the Vitezovi and members of its

3 command, who expressed their unhappiness with the insulting words used in

4 relation to the behaviour of the Vitezovi soldiers" - it refers to some

5 comments - "and with the order abolishing the Independent Battalion

6 Vitezovi PPN and incorporating it into the Bruno Busic regiment."

7 It then goes on to state that he can understand the intentions of

8 the head of the Croatian Defence Council and the defence department, but

9 commends the Vitezovi by indicating that the Vitezovi Battalion has in

10 fact performed all its assigned combat tasks, that is a real guarantee of

11 tenacity, security, and professionalism, and that in current combat

12 operations especially, it inspires stability and solid morale in all

13 soldiers on the front lines.

14 On the next page of the document, it says: "I know that the unit

15 is made up of young men who sometimes kick over the traces a little." I'm

16 not sure if this is an expression of what the problems are with the

17 Vitezovi, but if it is, it certainly indicates he's not very concerned.

18 "But I know that the unit command is on top of the situation and has

19 absolute control over the entire formation of this unit, and that all

20 Central Bosnia Operative Zone commands are carried out in their entirety,

21 without question and on time.

22 "I make the following requests to you personally, sir, the head of

23 the HZ-HB defence department, and you, sir, the chief of the HVO.

24 "1, that the order to reform the Vitezovi be temporarily revoked."

25 With respect, Colonel Blaskic is not complaining about the

Page 766

1 Vitezovi, he's not concerned about their criminal activity, he's not

2 indicating to his superiors that they have to be re-subordinated in

3 different units, he's not taking steps against the Vitezovi. He's using

4 the Vitezovi, they're reporting to him, and he's indicating that they are

5 following all of his tasks in their entirety, without question and on

6 time.

7 Now, this report, June of 1993, is after the report that the

8 Defence relies on. You'll recall that the Defence have put before you a

9 document where the Vitezovi have taken over a petrol station. It was

10 referred to in their submissions yesterday. And that after having taken

11 over a petrol station, they then refused to report to Blaskic and Blaskic

12 has to -- there's a document indicating that Blaskic has to contact the

13 Main Staff in Mostar and have them re-subordinated again around May 9th.

14 I won't go into the documents, but if you refer to Prosecution

15 Exhibit 41, it's a Security and Information Service report on the Kalen

16 petrol station in Vitezovi. What it actually indicates in this report is

17 that the command of the Central Bosnia Operative Zone, that's Blaskic,

18 came to the conclusion that the Kalen petrol station should be captured

19 and thereby saved from destruction because the tanks were full of fuel.

20 This task was entrusted to Kraljevic. Three members of his unit were

21 killed. And upon implementing the order, Kraljevic gave the petrol

22 station over to Colonel Blaskic, that is, to the logistics of the

23 Central Bosnia Operative Zone.

24 Then there is a dispute by the civilian authorities as to who is

25 going to operate the petrol station and whether or not the Vitezovi, and

Page 767

1 by inference, the Central Bosnia Operative Zone, can keep its proceeds.

2 The dispute results in a rebellion, according to this report, from some

3 members of the Vitezovi and that he then seeks the intervention by the

4 command in Mostar.

5 Now, it's true that the command indicate an order back that

6 they're to be subordinate, and that document is before you. It appears,

7 though, that this matter that is of grave concern doesn't relate to combat

8 activities; it relates to what appears to be is a dispute between the

9 civilian authorities and the military. And when you look at this

10 operation which was in April, and the request -- the re-subordination in

11 May, keep in mind the report shortly thereafter, I think about one month

12 after, on June 22nd, where Blaskic reports that they follow his command.

13 In my submission, he's referring to combat operations.

14 When you look at all these documents together and the operations

15 that took place and the Defence position that the Vitezovi committed

16 crimes but they just weren't subordinated to him, I think it's not

17 necessary that it's proven beyond a reasonable doubt at this stage that

18 that's the case. All that you have to determine on the basis of the

19 additional evidence is whether or not the Trial Chamber's findings were

20 reasonable.

21 There's just two other matters I want to refer to and then I'll

22 try and finish before the break and hand the Prosecution's remaining

23 submission to others.

24 The first, it's an interesting issue raised originally in the

25 cross-examination of some of the witnesses and then followed up by His

Page 768

1 Honour Judge Schomburg, and it's the use of the language "mop-up." The

2 appellant relies on three witnesses from last week, BA1, BA3, and

3 Mr. Watkins for an explanation that the term "mop-up" is a standard

4 military term used for legitimate military operations and to rebut the

5 Trial Chamber's findings in paragraph 646, concluding that the language in

6 Trial Exhibit 300 had the connotations of eradication.

7 I would respectfully submit that when you look at the activity

8 that took place at the time in relation to Exhibit 300, you'll see that

9 the exhibit refers to April 17th, 1993, at 11.45 at night. And the

10 operation is to begin on the morning of the 18th of April, at 5.30. And

11 this is exactly what happens in Kiseljak, and the Trial Chamber found that

12 a number of villages were ethnically cleansed.

13 Considering the context of what took place and the number of

14 international witnesses who described what actually took place, it's

15 respectfully submitted that the Trial Chamber was not -- it was not

16 unreasonable for the Trial Chamber to determine that that left the door

17 open for them to carry out cleansing operations.

18 The Trial Chamber also refers to the language in Exhibit D300.

19 This is from Colonel Blaskic to his forces referring to massacres of

20 Croatians, "that we will be wiped out by the Mujahedin and maintain a

21 sense of historic responsibility." I'm not sure these are the types of

22 things that relate to combat operations, but they certainly are to instil

23 in their forces the sense of continued fighting.

24 Now, in light of the witnesses, including witnesses, as I recall,

25 there was one witness specifically, BritBat, Colonel Brian Watters, who

Page 769

1 testified in relation to the HVO operations in Kiseljak. He's asked:

2 Q. Let us stay with the 19th, Colonel. On the 19th,

3 did the HVO continue to ethnically cleanse the Lasva Valley?

4 A. Yes. If you like, it was probably described as a

5 mopping-up operation.

6 I'll also ask you to recall the Vitezovi report that I just

7 referred to, PA25. The language in there by the Vitezovi regarding their

8 operations are "cleared". If you look at the original in B/C/S, it's the

9 same word that's been referred to for the purposes of mopping up. So the

10 interpretation in that case was clear, but it could have been interpreted

11 as mopping up. And we know what happened and what the appellant conceded

12 happened on April 16th and 18th in relation to the conduct of the

13 Vitezovi.

14 It's also interesting that Witness BA3 specifically indicated that

15 he had never heard Blaskic use the word "ethnically cleanse" and that it

16 was a word used by politicians. If you check Trial Exhibits 299 and 487,

17 you'll see that Blaskic uses these exact words and they're interpreted

18 from the B/C/S, and I can't pronounce the B/C/S words, but there are the

19 two words meaning ethnically cleansing. And when he uses it, he uses it

20 to describe what's happening to the Croatians, what's happening to the

21 Croatian civilians. He doesn't use it to describe ever what's happening

22 when his forces are on the ground. Why this is relevant is that

23 Colonel Blaskic knew exactly what the words "ethnically cleanse" meant.

24 It's in the reports. It's allegedly used by politicians. And he uses it

25 when he incites his troops when he describes the actions of the other

Page 770

1 forces. I submit that it's obvious that he's not about to use that

2 language in written reports to his own troops who are committing crimes as

3 it is clear evidence of an illegal report.

4 Now, lastly, I'd just like to refer to some of the submissions

5 relating to the relationship between Colonel Blaskic and Dario Kordic, and

6 you've heard the Prosecution submissions from my colleague earlier as to

7 the relationship between the two and their responsibility.

8 You're also fully aware that in the appeal, the appellant has

9 indicated that he's not responsible for any crimes committed during the

10 time that he is in Central Bosnia, June 1992 until the beginning of 1994.

11 Despite being the commander of the Central Bosnia Operative Zone, he never

12 had any involvement in any of the crimes committed, and we also note that

13 the Trial Chamber found that there was not one soldier who was prosecuted

14 for their illegal conduct in relation to the specific crimes. There is

15 evidence that the appellants have put forward of investigations and

16 others. That's in relation to Ahmici. And they've also indicated that

17 there was one comment in passing to General Petkovic about the Vitezovi in

18 relation to the truck bomb. Those are the two instances that I'm aware

19 of.

20 It's also interesting that Colonel Blaskic was promoted to general

21 shortly after his time as the Central Bosnia Operative Zone [sic]. If he

22 was a colonel which had no control over any of his forces, had no ability

23 to prevent any of the crimes, didn't punish them, and had no ability to

24 control units who were subordinated to him, it's just interesting that he

25 was promoted immediately thereafter.

Page 771

1 He was the highest-ranking military commander in the operative

2 zone, and Dario Kordic was the highest-ranking politician. Despite the

3 comments made by some of the witnesses, when asked, Witness Watkins

4 said - I'm sorry - when asked about the Jokers, Witness Watkins said that

5 sources cause him to believe that the Jokers reported to Dario Kordic.

6 And as I recall, there was one example at a checkpoint, not combat

7 operations.

8 BA3 testified to being taken hostage, and as the information may

9 identify him, and you're fully aware of what his testimony is in that

10 regard and you'll recall that in fact, and I think this was elicited from

11 questions by Your Honour Judge Weinberg de Roca, when asked, Witness BA3

12 could not give an example, despite being asked twice by Your Honour of an

13 instance where Kordic did not support him, where there was a conflict

14 between Blaskic and subordinate troops. In the instances he gave in

15 relation to being held hostage, in relation to checkpoints, in relation to

16 the capturing of ammunition, he indicated in those instances where Kordic

17 was contacted, Kordic supported him.

18 Despite all of that, I'll just return to my opening comments that

19 it's very telling that Blaskic never, ever indicated to anyone that it was

20 Kordic who had control over the military police, as indicated by his

21 presence at the checkpoints; that it was Kordic that was the one who had

22 control over the Vitezovi, as indicated when the Vitezovi refused to

23 release a particular individual who was held hostage.

24 As I've indicated as well, Colonel Blaskic has not changed his

25 position and has not presented any other evidence from himself stating the

Page 772

1 reasons why he had no idea that Colonel Kordic was in control of soldiers

2 at a checkpoint, specifically the one he was at, where the soldiers

3 specifically said they report to Kordic.

4 In fact, in relation to one particular individual, an individual

5 by the name of General Merdan, Blaskic testified at trial that there was a

6 serious incident -- this is his testimony on February 19th, 1999.

7 Colonel Blaskic states that: "There was another serious incident on the

8 15th of November, 1992, when Mr. Merdan was arrested, taken into custody,

9 and taken to my office in the Hotel Vitez. Mr. Merdan was taken prisoner

10 by the commander of the Vitezovi." Now, what does Colonel Blaskic

11 indicate happens? What's his testimony about this very serious instance

12 where he had no control over the Vitezovi? He testified: "And we

13 succeeded, after a lot of convincing, to have him freed, and he was given

14 back his equipment."

15 I respectfully submit the Chamber must take with some skepticism

16 this new-found defence, in light of the fact that Colonel Blaskic never

17 once at trial explained that the Jokers or the Vitezovi were commanded in

18 all respects by Kordic. In fact there's only one reference to someone

19 else being responsible in reference to the Jokers and this is in relation

20 to Ahmici, and it's found in a footnote of the Trial Chamber's judgement,

21 and it indicates that the Court may -- the Trial Chamber may wish to

22 consider that Ivica Rajic may be responsible for Ahmici. There's

23 absolutely no evidence anywhere on the record that Ivica Rajic had

24 anything to do with Ahmici or that he was even in the area. And if

25 you - it's my recollection, I may be wrong - but that evidence which the

Page 773

1 Trial Chamber referred to is in closed session, and you may wish to look

2 at that, because I can't recall, and I may be correct, I don't have it in

3 front of me, I don't even think it was the appellant who said it was

4 Ivica Rajic. I think it was in fact his counsel who put forward that

5 proposition. But I stand to be corrected.

6 When Blaskic was asked directly whether Kordic could have issued

7 the order for Ahmici, he answered at the time of trial, years after the

8 events in Ahmici, that he did not have any information that this was the

9 case, and he went on to state that Kordic was not in the chain of command

10 and he was simply a political leader.

11 The reason he doesn't state it, the reason why he tells you in his

12 testimony that we, and that has to be taken in light of the evidence that

13 it's he and Dario Kordic, released the individual referred to as

14 Mr. Merdan, is because they were working in close coordination and

15 consultation throughout these events. As you can see from the war diary

16 on the 16th there were 13 communications between the two of them and

17 there's references between them --

18 THE INTERPRETER: Can you slow down for interpretation.

19 MR. FARRELL: Why would Kordic and Blaskic be communicating about

20 military matters approximately every 45 minutes on the 16th? Why is there

21 not one written report to his superiors in Mostar indicating that he could

22 not control the military police or the Vitezovi because they only take

23 orders from Kordic? It's because of the two of them were working in

24 unison. And I believe there certainly were problems. Undoubtedly there

25 were times when the Jokers and military police appeared to want to listen

Page 774

1 to the orders of Kordic. Most of them are in relation to checkpoints and

2 convoys, not combat operations.

3 I'll ask that you recall Exhibit 456/109, which is a report from

4 September 1992 which indicates that Kordic, Valenta, Blaskic, and

5 Kostroman are the members of the working presidency of the HVO in

6 municipalities in Central Bosnia. That's in September 1992. I'll also

7 ask you to keep in mind Prosecution Exhibit PA3, one year later, in

8 September 1993, an intelligence report which indicates that Blaskic is

9 part of the Busovaca faction, that he falls under Kordic, and that who is

10 in that faction? Kordic, Kostroman, Valenta, and includes Blaskic, the

11 same four were the members of the working presidency one year earlier in

12 1992.

13 You'll recall the testimony of Mr. Watkins, that Kordic's

14 influence over Blaskic was significant, if not total. And that Kordic, as

15 the senior person, would be able to instruct Blaskic, even that Kordic

16 could give a military order to Blaskic. BA3 says Kordic had a great deal

17 of influence over Blaskic, and in decisive moments when decisions had to

18 be made it was Dario Kordic who made them and Blaskic who carried them

19 out. This was a passage which was read to him and which in

20 cross-examination he indicated that it was primarily at meetings and in

21 relation to humanitarian matters that Kordic would instruct him and

22 Blaskic would carry them out. First of all, if Kordic has influence over

23 such that he can get the commander of the Central Bosnia Operative Zone to

24 carry out orders, regardless of whether they're humanitarian orders,

25 that's quite telling. And secondly, it's the convoys and the keeping

Page 775

1 of -- taking of individuals and hostages at checkpoints that we find that

2 Kordic is involved.

3 Now, lastly, I'd just like to refer to a few transcript passages,

4 and then I can finish, Mr. President, or as it's been an hour and a half,

5 I can take a break now, as you wish.

6 JUDGE POCAR: We'll break in five minutes.

7 MR. FARRELL: Thank you, sir.

8 You'll recall that the Defence has referred to this press

9 conference on April 27th, where Blaskic indicated he was horrified as to

10 what happened in Ahmici. Keep in mind that about ten days later, on May

11 5th, on a meeting between Kordic and representatives of the Special

12 Rapporteur for the UN Commission on Human Rights, when asked about Ahmici,

13 Dario Kordic, on May 5th, says: "The atrocities were either committed by

14 Serbs who had infiltrated in the night or the Muslims themselves committed

15 the atrocities against their own people to get international sympathy."

16 Four days later, on May 9th, this is once again after the press conference

17 both Blaskic and Kordic were at, at a meeting between the commander of the

18 British Battalion and Colonel Blaskic, Blaskic gave his view as to how the

19 massacre in Ahmici occurred. General Duncan testified that Blaskic stated

20 that it was Serb extremists who came into Ahmici, or Muslims who had

21 infiltrated the pocket were dressed in HVO uniforms. This is exactly what

22 Kordic said four days earlier. The individual who he has no relationship

23 with and who is just a political authority. Brigadier Duncan, quite

24 correctly in my submission, found his reasons for the events in Ahmici to

25 be ridiculous. Witness BA3 stated he would be flabbergasted by such an as

Page 776

1 such an assertion as to what happened in Ahmici. And the language used in

2 that meeting to General Duncan by Blaskic are echoed in the Danas article

3 six months later, in October 1993. The article that Blaskic says was

4 written essentially by someone else. If that's the case it's certainly a

5 coincidence that similar language and similar explanations as to who

6 committed the crimes in Ahmici are found in a news article which echo the

7 comments made by Colonel Blaskic himself to the commander of BritBat.

8 And lastly, there has been submissions and evidence about Blaskic

9 being a professional soldier. There was ample evidence of this at trial

10 as well. This isn't new. I'd just like to read to you in closing in my

11 submissions what Colonel Stewart, the commander of the British battalion,

12 said in relation to Colonel Blaskic. I'm now quoting from the transcript

13 of the testimony of Colonel Stewart: "I would like to end by giving my

14 impression and opinion. I want to place on record that personally I have

15 a great liking for Tihomir Blaskic. That was until the massacre of

16 Ahmici. I considered him someone I could trust and who was good for his

17 word and a professional officer, and I was disappointed in his response

18 after the massacre in Ahmici. I know that Mr. Blaskic was ex-Yugoslav

19 National Army, and so was Mr. Merdan. They knew one another well. To

20 start with, I always considered Tihomir Blaskic was the commander. Kordic

21 was a complication. But I knew from my sources that the HVO didn't think

22 of him as a soldier in the same way as they thought of Tihomir Blaskic.

23 After all, Kordic always told me he was the vice-president of the HVO and

24 his background as I understand it was that of a journalist."

25 Then he continues: "As I have mentioned at times we, the British,

Page 777

1 were confused as to the command structure, particularly complicated by

2 Kordic, but Blaskic was the main link to Petkovic, a chief of staff of HVO

3 and I saw them a couple of times together, not Kordic. I am positive that

4 the HVO carried out the massacres, the major massacres in the Lasva Valley

5 in April 1993. I find it very difficult to believe that the HVO command

6 in Vitez did not know or did not order the attack on the village of

7 Ahmici, which is only 3.5 kilometres from the Hotel Vitez. I do not

8 believe that any command structure doesn't know what's happening with the

9 soldiers that short a distance away. And in conclusion, despite my great

10 personal liking for Tihomir Blaskic, I believe that Tihomir Blaskic alone

11 was the HVO commander in Central Bosnia and thus held command

12 responsibility for the actions of his soldiers."

13 Those are the submissions on this matter. I'm sorry for taking

14 five minutes over.

15 JUDGE POCAR: I thank you, Mr. Farrell. We break now.

16 [Appeals Chamber confers]

17 JUDGE SCHOMBURG: On today's transcript page 35, line 12, you

18 referred us to a footnote in the Trial Chamber judgement without quoting

19 this footnote.

20 MR. FARRELL: I'm sorry.

21 JUDGE SCHOMBURG: If you could, after the break, just give us the

22 footnote, please. Thank you.

23 MR. FARRELL: Thank you very much.

24 JUDGE POCAR: So we break now and we resume at 10.45. The

25 Prosecution will have 20 more minutes to go.

Page 778

1 --- Recess taken at 10.21 a.m.

2 --- On resuming at 10.47 a.m.

3 JUDGE POCAR: Please be seated.

4 So we resume the hearing, and I'll give the floor to the

5 Prosecution for 20 minutes. You have the floor.

6 MR. FARRELL: Thank you, Your Honours. Ms. Michelle Jarvis will

7 be making the remaining Prosecution submissions, and I will ask her to do

8 so in just one minute. I just wanted to note one thing. I realised after

9 the submissions, first of all, in answer to a question of Your Honour

10 Judge Schomburg, in the Trial Chamber's judgement footnote 904, at page

11 144 is the reference I think that may assist Your Honour.

12 JUDGE SCHOMBURG: Thank you.

13 MR. FARRELL: The second matter, if I could just clarify: I

14 referred to Colonel Blaskic's testimony during the trial in relation to an

15 incident where an individual by the name of Mr. Merdan was taken to

16 Colonel Blaskic's -- was arrested, taken into custody, and taken to his

17 office. Just looking at his testimony at the break, I just thought I

18 should make it clear that it says that Merdan was arrested, taken into

19 custody, and taken to Blaskic's office in the Hotel Vitez, where another

20 individual was present, General Prkacin was there, together with Blaskic.

21 He had been taken prisoner by the commander of the Vitezovi. And the date

22 is November 15th, 1992. That's the date in the testimony of

23 Colonel Blaskic on February 19th, 1999.

24 I note that there are some documents before you regarding the

25 incident on November 1992. They're Exhibits 87 to the Defence first

Page 779

1 motion, and Exhibit 33 to the Defence fourth motion. I just want to bring

2 those to your attention because they appear to November 15th, 1992.

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 I just wanted to clarify that. I didn't want to leave the

13 impression that they're the exact same incident because I'm not sure on

14 the basis of the evidence.

15 I will now ask my colleague Ms. Jarvis to make the remaining

16 submissions for the Prosecution. Thank you.

17 MS. JARVIS: Thank you, Mr. President, Your Honours. I will be

18 making the Prosecution's submissions in relation to the appellant's ground

19 of appeal concerning Article 5 of the Statute and a few related

20 evidentiary issues that come up in the context of that ground of appeal.

21 The only thing that the appellant has so far said about his

22 Article 5 ground of appeal is that he does not believe the Trial Chamber's

23 analysis of discriminatory intent for persecution was properly done. The

24 Prosecution can only assume that to support this argument, he relies on

25 the positions set out in his appeal brief, and there are certainly a

Page 780

1 number of things that the Prosecution wishes to address in relation to

2 those submissions.

3 In particular, Your Honours, the appellant seeks to advance the

4 most restrictive possible legal definition of persecution. As I'll

5 explain, the elements that he proposes are contrary to the Tribunal's

6 established jurisprudence. But even if the legal propositions he suggests

7 were correct, the facts of this case would indeed meet those requirements.

8 In a nutshell, the appellant's position is one of denial. He

9 denies that the objective of the Bosnian Croat leadership in

10 Central Bosnia was to remove the Muslim population from the targeted

11 areas. Quite simply, he denies that there was any ethnic cleansing in

12 Central Bosnia at all.

13 The evidence overwhelmingly contradicts this, Your Honours.

14 Reflecting back on the voluminous evidentiary record in this case, the

15 Trial Chamber, at paragraph 750, looked at the systematic plundering and

16 burning to the ground of houses and stables, the targeting of civilians,

17 regardless of age or gender; the destruction of religious institutions,

18 the mosques; the systematic campaign of detentions, which was organised,

19 prisoners being transferred from one detention centre to another,

20 prisoners being systematically taken after every military attack. The

21 accused himself stated that 20 or so villages were attacked, according to

22 a pattern which never - excuse me - changed.

23 The Trial Chamber concluded that the only reasonable inference was

24 that the objective was to make the Muslim population take flight. The

25 comments of a Canadian army officer, reflecting back over the aftermath of

Page 781

1 the attacks in Kiseljak, are reflective of the evidence about the overall

2 campaign. He said: "The impression it left with me is very vivid and

3 very striking, because I was taken aback by the surgical nature of the

4 damage. As you drove through this area, there would be houses that were

5 burnt out. There would be one or two or three, and then right in the

6 middle of them, you'd see another house that was completely intact,

7 inhabited even. And then further down the road, more destroyed houses."

8 He continued: "Upon talking to the inhabitants, it quickly became

9 apparent that the damaged houses belonged to Bosnian Muslims and the

10 undamaged ones were the property of Bosnian Croats."

11 He concluded: "I think it was very discriminating."

12 In light of evidence such as this, Your Honours, the appellants

13 claim that there was no ethnic cleansing is unsustainable. The appellant

14 even goes so far in his brief as to deny that the crimes of which he was

15 convicted are sufficiently grave to constitute persecution. Let's not

16 forget that what is at issue here is systematic targeting of Bosnian

17 Muslim civilians, with murder and serious bodily injury; systematic

18 detention, in cruel and inhumane circumstances; forcible transfer; and the

19 destruction of their homes and livelihood, in more than 20 villages,

20 across three municipalities, throughout the course of an entire year.

21 The appellant further denies that he acted in furtherance of the

22 ethnic cleansing campaign. He maintains his position primarily by

23 pointing out that he was not known to use discriminatory language in

24 relation to Muslims. Obviously, though, Your Honours, his discriminatory

25 actions speak far louder than his words.

Page 782

1 Your Honours, having given this general overview, I'll turn to the

2 specific legal and evidentiary propositions that the appellant's raised in

3 relation to Article 5.

4 My submissions will be divided into four main areas. The first

5 one is the appellant's claim that the mens rea standard adopted by the

6 Trial Chamber was erroneous. Secondly, I'll look specifically at the

7 evidence regarding General Blaskic's discriminatory intent in this case.

8 Third, I will look at the Trial Chamber's findings regarding the three

9 specific villages mentioned yesterday by the appellant, Donja Veceriska,

10 Gacice, and Grbavica. And fourth, I'd like to touch briefly on the

11 appellant's arguments regarding the civilian nature of the population in

12 Stari Vitez, because that is, of course, an important contextual element

13 for crimes against humanity.

14 Your Honours, turning, then, to the first topic, the correct mens

15 rea standard for persecution. The appellant's arguments regarding the

16 mens rea standard for persecution and the Trial Chamber's alleged error

17 start from the erroneous position that for persecution, proof of a state

18 or organisational policy to exclude the victims from society or humanity

19 is required. Well, Your Honours, the jurisprudence of the Appeals Chamber

20 in the Krnojelac case makes it clear that no such policy element is

21 required, and I direct you to the definition of persecution set out at

22 paragraph 185. In fact, in overturning the acquittals of Mr. Krnojelac on

23 the crime of persecution and entering convictions, the Appeals Chamber

24 made absolutely no reference to any requirement that there be a policy to

25 remove victims from society or humanity. In our submission, the

Page 783

1 jurisprudence on that point is settled.

2 As an aside, though, Your Honours, even if the appellant was

3 correct that this was a requirement, the facts of this case, indeed the

4 Trial Chamber found that such a policy did exist. The Trial Chamber in

5 the judgement documents a policy stemming from President Tudjman in

6 Croatia, down through the authorities in Central Bosnia, to annex the

7 so-called Croatian territories of Bosnia to Croatia. When the Vance-Owen

8 Peace Plan failed to deliver the territories coveted, the Bosnian Croats

9 issued an ultimatum to the ABiH, an ultimatum which was rejected. This

10 was the stage upon which the Bosnian Croat political and military

11 leadership unleashed their coordinated campaign of military attacks. They

12 could not be a clearer example of a policy to remove the targeted group

13 from society or humanity.

14 Your Honours, having erroneously claimed that persecution requires

15 this policy element, the appellant then asserts that the Trial Chamber

16 erred by failing to require that General Blaskic subscribe to that policy.

17 That's what he suggests the mens rea for persecution requires.

18 Again, this argument is easily disposed of. There is no such

19 policy requirement for persecution, and the Trial Chamber's failure to

20 require it certainly demonstrates no error.

21 Although the appellant criticises the Trial Chamber for equating

22 the mens rea requirement for persecution with proof of specific intent to

23 target because the victim belongs to a particular community or group, in

24 fact, that accords exactly with the definition set down by the

25 Appeals Chamber in the Krnojelac case, and I direct you to paragraphs 184

Page 784

1 and 185 in that regard.

2 This also accords overwhelmingly with the Trial Chamber's

3 jurisprudence on the mens rea of persecution. In Kupreskic, the

4 Trial Chamber referred to attacking persons on account of their political

5 or religious affiliations. In Kvocka, to the fact that the detainees in

6 Omarska camp were selected on the basis of their affiliation with the

7 group.

8 The Prosecution also notes that this formulation is consistent

9 with Article 7 of the ICC Statute, which also refers to targeting by

10 reason of the identity of the group.

11 Your Honours, turning then to my next topic, the evidence of

12 General Blaskic's discriminatory intent in this case. Notwithstanding the

13 arguments that the appellant made yesterday, the Prosecution's rebuttal

14 evidence amply demonstrates that the appellant barely raised an eyebrow in

15 response to the devastating crimes committed against the population in

16 Central Bosnia. In Exhibit PA38, dated the 22nd of June, 1993,

17 General Blaskic sang the praises of the Vitezovi, pleaded that they not be

18 disbanded, and justified their behaviour on the basis that they simply

19 kicked over the traces a little.

20 This stands in stark contrast to the evidence of Witness BA2, who

21 recounted how General Blaskic hauled him over the coals in response to a

22 simple breach in military dress code. He was threatened with

23 imprisonment. The disparity in General Blaskic's reaction speaks volumes

24 about the discriminatory underpinnings of his conduct.

25 The appellant has relied on the fact that witnesses said he was

Page 785

1 not known to use derogatory language about Muslims. In fact, as my

2 colleague Mr. Farrell mentioned, there was considerable evidence to this

3 same effect at trial, and it's conveniently recounted in the appellant's

4 brief at pages 177 to 178. Notwithstanding all of this evidence, the

5 Trial Chamber nevertheless determined that the appellant was acting with

6 discriminatory intent. How can this be reconciled? Because the evidence

7 clearly discloses that General Blaskic was skilled at tailoring his

8 remarks depending on the nature of his audience.

9 For example, the duplicity in General Blaskic's response to Ahmici

10 was specifically noted by the Trial Chamber at paragraph 483. His

11 comments to Colonel Stewart, on the one hand, expressing utmost concern

12 about the crimes, and yet that very same day, in a report up the chain of

13 command, expressing no remorse or anger about what happened, and in fact

14 complaining that the international community presented a biased account of

15 these events.

16 And Mr. Farrell has explained that General Duncan's testimony at

17 trial accords precisely with the account recorded in the Danas article

18 about General Blaskic's denial of the crimes in Ahmici and the completely

19 unacceptable explanations that he sought to advance about the causes of

20 that attack.

21 Indeed, many witnesses on appeal expressed surprise, and in some

22 cases even outrage, at some of the conduct that has indisputably been

23 attributed to General Blaskic. Witness BA1, while maintaining that the

24 appellant always conducted himself professionally, categorically stated

25 that the use of prisoners for trench-digging was illegal. Yet we know,

Page 786

1 from Exhibit PA56, that General Blaskic expressed concern to the

2 Kiseljak Brigade about the international community finding out about

3 trench-digging, but expressed no concern about the practice itself.

4 Your Honours, there is also one very important matter that I would

5 like to draw to your attention, and it builds on Mr. Farrell's comments

6 yesterday and today about the appellant's erroneous claim at trial that

7 the ABiH initiated the attacks on the 16th of April.

8 [Appeals Chamber confers]

9 JUDGE POCAR: Excuse me, Ms. Jarvis. I'm told you're probably

10 speaking too fast.

11 MS. JARVIS: Okay. I'll endeavour to slow down, and my apologies

12 to the interpreters.

13 Your Honours, Mr. Farrell explained the evidence that refutes,

14 uncategorically, the appellant's defence at trial that the ABiH attacked

15 the HVO on the 16th of April and that the HVO was reacting defensively.

16 Your Honours, why would the appellant have resorted to the false claim

17 that the ABiH was responsible for the attack in the first place if it was

18 a legitimate military objective? Why would he simply not have said the

19 HVO attacked, the HVO was on the offensive? The inference that must be

20 drawn from this false defence is that the appellant knew full well the

21 illegal and discriminatory objective underlying the attacks that he was

22 directing, and he was attempting to provide a shield to cover his actions

23 to the world at large.

24 Your Honours, just very quickly, because I am running out of time,

25 I wanted to address the Trial Chamber's findings regarding

Page 787

1 Donja Veceriska, Gacice, and Grbavica, because the appellant suggested

2 yesterday that the Trial Chamber applied an incorrect standard in relation

3 to those three villages, and you'll recall Your Honour Judge Schomburg

4 pointed out the discrepancy in the translation between the original French

5 and the English, "dolus eventualis" in the French version, "negligence" in

6 the English. It's clear as Ms. Boelaert pointed out in her submissions

7 yesterday, that the Trial Chamber applied a dolus eventualis standard

8 which is in accordance with the Tribunal's jurisprudence on indirect

9 intent, as confirmed most recently in the Galic judgement.

10 One thing that I wanted to say, because it's relevant to the issue

11 of persecution, is that in finding indirect intent regarding these three

12 villages, the Trial Chamber was looking at the general intent requirement

13 for the actus reus of the crimes. It's not an indirect intent finding

14 regarding the specific discriminatory intent for persecution. He may have

15 indirectly intended the commission of the crimes, but General Blaskic took

16 the risk of those crimes being committed because the victims of the crimes

17 would be Muslims. He sent troops in knowing full well that they were very

18 likely to commit crimes against Muslims and it's part of the same

19 discriminatory process underpinning the rest of his actions.

20 Alternatively, Your Honours, if you are of the view that these

21 villages could not be sustained under Article 7(1), certainly they could

22 be sustained as persecution under Article 7(3), and the Krnojelac appeals

23 judgement confirms that Article 7(3) does indeed apply to specific intent

24 crimes such as persecution.

25 Very quickly, Your Honours --

Page 788

1 JUDGE POCAR: Ms. Jarvis, I'm sorry, but your time has expired.

2 MS. JARVIS: Okay. Would you allow me just one minute to

3 conclude, Your Honours?


5 MS. JARVIS: I'd just like to direct Your Honours' attention to

6 the Prosecution's closing brief at trial regarding Stari Vitez. The

7 evidence was overwhelming and in fact is not materially inconsistent with

8 the evidence of Witness BA5. Your Honours, in conclusion, I'd just like

9 to return to the theme that I started with, and that is the appellant's

10 denial about what happened in this case.

11 Your Honours, he was a commander in a position of special

12 responsibility as a guardian of international law. In total disregard of

13 that duty, he used his position and skills to advance the Bosnian Croat

14 ethnic cleansing campaign and to reward his efforts, he was promoted.

15 That concludes my submissions. Thank you very much for your

16 indulgence.

17 JUDGE POCAR: I thank you, Ms. Jarvis.

18 Judge Weinberg de Roca would like to put a question, please.

19 JUDGE WEINBERG DE ROCA: Yes, Ms. Jarvis. You mentioned a few

20 minutes ago that General Blaskic supported or was in favour of the

21 trench-digging in Kiseljak and that before that, he had supported the

22 events in Ahmici up the chain of command. Is this your personal opinion

23 or is it based on any evidence you did not mention?

24 MS. JARVIS: I'm sorry, Your Honours. It was probably because I

25 was running out of time, and the documents in question were in fact

Page 789

1 referred to extensively throughout the submissions of Mr. Farrell. But

2 let me just clarify. In relation to the trench-digging, the order I was

3 referring to is Exhibit PA56, and that was the order in which he expressed

4 concern about the international community finding out that Muslim

5 prisoners were being killed while engaged in illegal trench-digging, but

6 expressed no concern whatsoever about the illegal practice itself. And

7 with respect to Ahmici, I had drawn upon the Trial Chamber's findings in

8 the judgement where they noted that on one and the same day,

9 General Blaskic both expressed outrage to Witness Stewart -- I'm sorry, to

10 Witness Stewart regarding the crimes in Ahmici, but then on that very same

11 day, sent a report to his chain of command expressing neither concern or

12 outrage and in fact, complaining about the biased representation of these

13 events. And I'd also refer Your Honours' attention to the testimony of

14 Witness Duncan, at trial, who also confirmed that General Blaskic had

15 given implausible explanations for the Ahmici crime, and that's at

16 transcript 9055.

17 JUDGE WEINBERG DE ROCA: Thank you very much.

18 JUDGE POCAR: Thank you, Ms. Jarvis. There are no more questions

19 from the Bench.

20 So we now turn to the appellant for the reply. I remind counsel

21 for the appellant that they have one hour, 45 minutes for the reply.

22 MR. HAYMAN: I have mixed feelings in that regard, Your Honour.

23 On the one hand, I'd like more time. On the other hand, I'm looking

24 forward to finishing this case after seven years.

25 I have great sympathy for my colleagues in the office of the

Page 790












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13 pagination anglaise et la pagination française. Pages 790 to 792.













Page 793

1 Tribunal Prosecutor, because none of them here that have presented to

2 Your Honours tried the case. They didn't see the evidence come in. And

3 unfortunately, as a result, they don't have the command of the evidence

4 that they might. There's no way to get a command of the evidence really

5 from the trial record. And as a result, they've made serious

6 misrepresentations to Your Honours about what is in the record. And

7 what's interesting is there are a few things that keep getting repeated

8 over and over and over again, until they become talismen [sic] for the

9 Prosecution.

10 Let's go first to the Duncan statement. Colonel Duncan replaced

11 Colonel Stewart as the BritBat commander of UNPROFOR in Central Bosnia.

12 May 9th was Duncan's first day on the job. He went out and he met

13 everybody, and Colonel Stewart took him around, and that's customary when

14 one commander is leaving and another is coming in. You go on a roadshow

15 and you meet all the players. So that day they met with Kordic, they met

16 with Blaskic. And what did Duncan testify in the trial? That he met with

17 Blaskic and Blaskic said, "Oh, Ahmici. The Serbs must have done it."

18 It was his first day on the job. Stewart was at the meeting. He

19 was taking Duncan around. And that's in Stewart's testimony at transcript

20 page 23810. Stewart also testified very clearly as to what was said in

21 that meeting by Colonel Blaskic, and I'd like to show you. If you'll turn

22 on your computer evidence. This is the examination of Colonel Stewart at

23 23812, line 2: "In your book" - Colonel Stewart wrote a book about his

24 experiences in Central Bosnia - "at page 310 you recounted a meeting with

25 Dario Kordic in which Mr. Kordic had suggested that the Serbs had been

Page 794

1 responsible for Ahmici. Do you recall that?"

2 A. I do.

3 Q. I take it you find that an incredible explanation?

4 A. Well, yes. I just remember laughing myself sick.

5 Q. Would you agree that Colonel Blaskic never made such

6 an explanation to you for Ahmici?

7 A. I would definitely agree that Colonel Blaskic never

8 made such a statement to me, that the Serbs were responsible for that

9 action, which, of course, goes to show, you know, that Kordic was not a

10 soldier; otherwise, he would not have made such an outrageous statement.

11 Stewart was there. Duncan made a mistake. We heard about this

12 mistake over and over and over again at trial. And now the appellate

13 Prosecutors are repeating this mistake in an attempt, as innocently as it

14 may be, to prejudice you and inflame you against the appellant, so that

15 you'll believe that he lied, he covered up, he pointed at the Serbs, and

16 it's not true. He never said it.

17 Now, there was another mistake made yesterday, and it involves the

18 statement by one of my learned colleagues with respect to Defence Exhibit

19 410. She said 410 is identical to Exhibit 1 to the first Rule 115 motion

20 and that our statements to you, our written and oral submissions that the

21 Ahmici report from the 26th - excuse me - that the Ahmici report from the

22 26th of November, 1993, that that wouldn't have changed the trial at all,

23 because the same report was already in evidence at trial. And the exhibit

24 cited was D410. Well, first, let's look very quickly at Exhibit 1 to the

25 first Rule 115 motion so we have it in mind.

Page 795

1 Here's the cover page. The cover page is a transmission which is

2 actually dated the 15th of March of 1994, but page 2 contains the text of

3 the report, dated 26 November. It's a little bit small. Maybe we could

4 blow up the third paragraph from the bottom, please, the third paragraph

5 from the bottom, please. Yes, please.

6 This report -- by the way, it's not perfect. We don't claim that

7 any of these reports ever got it 100 per cent right. You can see in this

8 paragraph, it's citing an interview with a participant in the Ahmici

9 crimes, Zoran Kristo, who provided information. But this report

10 identifies the military police, identifies the Jokers, identifies the

11 command structure, Ljubicic, Cosic, and so forth, and identifies other

12 perpetrators of the crime. What's in D410? Is it the same document?

13 D410 is under seal. It's under seal. Excuse me. So we need to go into

14 private session for just a moment.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 796

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 [Open session]

18 THE REGISTRAR: We are in open session.

19 JUDGE POCAR: Thank you.

20 MR. HAYMAN: Just so there's some logic and order to my comments,

21 I will first go back and try and cover legal issues, some of the legal

22 issues that were raised yesterday, and then follow with a reply to some of

23 the issues raised this morning.

24 Counsel stated yesterday, at page 130 in the transcript, that "it

25 is beyond comprehension how a general who orders attacks of a village

Page 797

1 could justifiably hope that serious violations of international law, such

2 as murders and cruel and inhumane treatment, would not occur." That was

3 said. And the implication, Your Honours, is that any fighting in built-up

4 areas is per se illegal under international law. As was customary,

5 unfortunately, in the civil war in Bosnia, military units were housed in

6 villages. If one military force deemed it necessary to take a military

7 action against a military unit housed in a village, that required a

8 military action directed at that unit in the village, and that's

9 absolutely legal under the law that you are bound to enforce so long as

10 there's a military objective and there are no disproportionate civilian

11 casualties. That seems to be entirely lost on the Prosecutor's office.

12 We might want to live in a world where war is illegal, but we don't, and

13 this is not a legislative body.

14 Now, with respect to 7(1) and 7(3) liability, counsel across the

15 well argued that if it finds appellant's conviction under 7(1) to be

16 defective, you can revise the conviction and find him guilty under 7(3).

17 And she said that this would not be a notice problem for appellant. We

18 respectfully submit this misses the point. It appears from the judgement

19 appellant has already been convicted below under both 7(1) and 7(3). The

20 prejudice is: We were forced to try this case and respond to two

21 inconsistent theories simultaneously, and that's a definition, the

22 definition, the most basic definition, of a defective indictment.

23 We also don't have a valid judgement document, because the

24 judgement does not articulate a clear theory of liability. It conflates

25 7(1) and 7(3).

Page 798

1 There was no trial where appellant had fair and full notice of the

2 charges. What we had was an ex post facto selection of a theory of

3 criminal liability based on a menu available to the Trial Chamber. But

4 the most fundamental problem is: We never knew specifically what theory

5 we were defending against and which might take precedence, which is just

6 underscored by the comments of the Prosecutor that if you find one is bad,

7 well, switch over to the other.

8 As we read the Kupreskic appeals judgement, the remedy is reversal

9 in toto for that fact.

10 Now, there was also the argument made that effective control of

11 the forces in question are irrelevant. That question is irrelevant to the

12 case because appellant was convicted of issuing orders under 7(1), and

13 that you don't have to look at effective control. We have spent a lot of

14 time the last three years in this appeal writing briefs and submitting

15 materials to you on effective control, I submit, and it's a little odd for

16 the Prosecutor now to be claiming effective control is irrelevant. In

17 fact, her argument was entirely circular. Appellant was principally

18 convicted of issuing orders under 7(1), on the basis of his alleged

19 superior relationship and control over subordinate units, i.e., because he

20 controlled the units and because they committed crimes, ergo he must have

21 ordered them. So you see, to assume away the relevance of effective

22 control and say he ordered, he issued orders, that's all we have to know,

23 that is a circular argument where the conclusion that orders were given is

24 based on the assumption that effective control existed. That's what she

25 asked you to do yesterday.

Page 799

1 Now, what about the orders themselves? I've talked about the

2 circular argument made yesterday by counsel. But there are three

3 instances, I believe, in the judgement where the Trial Chamber looked at

4 specific orders and said: This is an illegal order. D269, D299, and

5 D300.

6 Now, we heard a little bit from Mr. Farrell this morning trying to

7 resurrect an argument that these orders were illegal. I want to note that

8 at trial, in the trial in this case lasted 26 months, they were afraid to

9 ask a single witness whether these orders were illegal. They never

10 brought in a military expert or any other military qualified person and

11 said: Hey, is this an illegal order? They never did it. They made a

12 decision at trial not to do it because they knew they couldn't sustain it.

13 But now that the Trial Chamber jumped in the water and got all

14 wet, they're trying to defend it. There's no basis in the record for it.

15 Indeed, the record is what you heard last week from multiple witnesses.

16 Every witness, every witness to opine on these orders in this case said

17 they're legal, and with respect to D269, it's a defensive order. That's

18 the only testimony you have. So if you've somehow find that the

19 Trial Chamber had a rational basis for its finding you're going to have to

20 go outside the evidence because it's not in the evidence, it's not in the

21 testimony. It's just not there. That is with respect to D269, D267, and

22 PA12.

23 What about D299 and D300? Those are the Kiseljak orders that were

24 discussed yesterday by Mr. Nobilo. He focussed on those orders and he

25 also made, I think, an interesting discovery with respect to a section of

Page 800

1 the war diary that had been blurred with a prior entry, and now hopefully

2 we have that clarified. He made very clear, if you take those three

3 documents together and you take the map, you have a picture of a commander

4 who is repeatedly, in blunt and direct language, instructing

5 Mario Bradara, the deputy commander of the Kiseljak Brigade: Go up the

6 hill and take the high ground. Stay out of the village. Don't go down

7 below.

8 It's absolutely clear from the orders and the war diary that is

9 what he was trying to do. And he repeated it. He said it multiple times.

10 And yet, he was convicted of actions that units of that brigade took,

11 going exactly where he told them not to go, because they went into the

12 villages and they got into trouble and they committed crimes.

13 There's one other point I'd like to make about these exhibits.

14 267, 268, 269, 299, 300. They all start with a D. That means they were

15 not presented in the Prosecutor's case in chief. They didn't have them.

16 They would have been produced to us as statements of the accused pre-trial

17 if they had had them. They didn't have them. They didn't get them in

18 their investigation, they didn't present them to the judge that returned

19 the indictment against our client. They didn't present them in their case

20 in chief. They were produced in the Defence case, for the first time, and

21 one can ask, and I submit should ask: Was it responsible? Was it

22 reckless, for Richard Goldstone to bring this indictment against the

23 accused when he lacked the basic documents, documenting the events in

24 question? He didn't have them. And that's how this case was tried. This

25 case was tried with a year of victim testimony, with almost no mention of

Page 801

1 the accused. We sat there and listened to a year of victim testimony, a

2 horrible experience, one of the worst experiences in my life, listening to

3 victims with their very tragic stories.

4 Now, although it's distasteful, I need to address the Rule 68

5 issue. The Prosecution has confirmed that it engaged in Rule 68

6 violations vis-a-vis the Kordic case evidence and specific witnesses.

7 There's no explanation for these violations in the record. With respect

8 to Witness BA1, the Prosecutor admitted yesterday that non-production of

9 his statement was a violation of Rule 68, but he argues: We got the

10 reporter's transcript at the end of 1999, some four months after trial was

11 concluded, so there's no prejudice.

12 What is important is the statement was given in August of 1996.

13 The Trial Chamber issued an order pursuant to our Rule 68 motion that

14 exculpatory material had to be identified, and either produced or a

15 statement submitted to the Court why it couldn't be produced. Not only

16 was Rule 68 violated; that order was violated. The Trial Chamber below

17 was misled. We did get the transcript of this particular witness at the

18 end of 1999 from the Registrar's Office, together with boxes of other

19 transcripts, voluminous materials, and it took us some time to get through

20 them. When we got through them, we brought them to the Court's attention.

21 Now, my learned colleague, and again he inherited this problem to

22 a very, very large extent and I'm not in any way suggesting that he was

23 involved in the events in 1996, 1997, 1998, 1999, but he did suggest that

24 the sanction, the proper sanction for this violation is to sanction the

25 Prosecutor's office, like imposing a fine on them payable to the library

Page 802

1 fund or something like that. With all due respect, where a party is

2 damaged and prejudiced, the remedy must address the damage. How can you

3 address the damage? And I have -- I'm not done talking about the

4 violations, but I'll continue talking about the remedy.

5 How can you -- how can the Prosecutor argue with a straight face

6 that there's been no prejudice when they do not agree that the evidence

7 should be reviewed de novo? They want you to give great deference to the

8 Trial Chamber's findings, which, if you do that, it basically guts the new

9 evidence. You either look at the evidence de novo, apply a "proof beyond

10 a reasonable doubt" standard, which is what you could do to avoid

11 prejudice from the Rule 68 violation, or else the prejudice to appellant

12 is horrific. It's horrific. And in the American and in the British

13 systems, an acquittal or new trial would be required, given the volume of

14 Rule 68 violations here. What were the others?

15 Mr. Watkins gave a statement on the 1st of June, 1996. It was not

16 produced. It was not disclosed. That statement contains extensive

17 exculpatory information.

18 The Prosecutor suggests: Well, it really wasn't prejudicial

19 because the appellant already knew about the Convoy of Joy. It is true

20 appellant was consulted in connection with that event. He was not

21 omnipotently on the scene. That convoy was some 500 vehicles long. To

22 suggest that he had complete information about that incident is simply not

23 credible. And in any event, evidence from the witness is different from

24 evidence from a neutral international -- neutral observer. That's all I

25 should say concerning BA -- well, Mr. Watkins, I'm sorry, he was a public

Page 803

1 witness. A military expert, a neutral independent expert. There's a huge

2 difference in the quantum of evidence for Mr. Watkins to say: This is

3 what I saw. This is what I heard. Based on this event and everything

4 else, the Jokers were controlled by Kordic. And this is the view that

5 ECMM had. It wasn't just me. That's what Watkins said. To suggest that

6 somehow that testimony was within the power of the appellant to give

7 himself on the stand is preposterous and also ignores that the Watkins

8 statement contains numerous other important pieces of information

9 concerning command and control problems within the HVO, existence of

10 isolated pockets and the impact on C2 from that fact.

11 THE INTERPRETER: Could counsel please slow down. Thank you.

12 MR. HAYMAN: I apologise to the interpreters. After all these

13 years, it's still an exciting case.

14 It also fails to note, very critically, that -- Well, let me

15 preface this with counsel also said: Witness Duncan testified about the

16 Convoy of Joy so we don't need Watkins's statement. There's no

17 prejudice. What did Duncan say? If you look at his testimony, reporter's

18 transcript 9028 to 9227, Duncan said there was a problem with the police.

19 Kordic was there, Kordic helped sort it out. Duncan never identifies the

20 military police as the problem with the Convoy of Joy, never identifies

21 the Jokers. The key information in the Watkins statement that Kordic

22 controlled the Jokers is not in Duncan's testimony. We didn't get it. We

23 didn't have the opportunity to present it to the Trial Chamber. That's a

24 serious problem. And I am sorry Your Honours have inherited it, but it's

25 now your problem.

Page 804

1 The Prosecutor contend that had it produced BA3's statement to us

2 many years ago. They did not claim that when they opposed our second Rule

3 115 motion.

4 There is a much larger body of withheld exculpatory evidence, and

5 it is in the record in this case. If you look at our second Rule 115

6 motion, there are seven witnesses in addition to the ones I've mentioned.

7 [Defence counsel confer]

8 MR. HAYMAN: They are Witness AO, Witness Dragutin Cicak,

9 Witness I, Witness T, Ekrem Mahmutovic, Zdenko Rajic, Witness Z. All

10 provided exculpatory information in Kordic, not provided to us in a timely

11 manner. Indeed, there are additional documents from the Kordic case that

12 we were not provided in addition to those, many of those that you've

13 received, such as Exhibit 16 to the second Rule 115 motion, Exhibit --

14 [Defence counsel confer]

15 MR. HAYMAN: -- Exhibit 2022, and Exhibits 23 and 24. So you must

16 look, we submit, not only at the Rule 16 violation, but the violations of

17 the Trial Chamber's order issued in 1996 concerning the production of

18 specific categories of exculpatory information and evidence to the

19 appellant. You'll recall from yesterday our motion was very specific.

20 Our potential theory of the Defence was very clear to all. Everyone was

21 on notice where we wanted to go in defending our client.

22 Now, Mr. Farrell suggested that he may want to supplement the

23 record on these questions. Well, they've already responded in the form of

24 the Rule 115 motions to the availability and unavailability, et cetera,

25 issue. So they've already had their opportunity, we submit, to speak to

Page 805

1 those issues. And any attempt, any further attempt to supplement the

2 record, it is appellant's position, must be accompanied by an evidentiary

3 hearing at which the investigators and the Prosecutors, in both the Kordic

4 and Blaskic cases, are produced, with all of their records, all the

5 witness statements, all their investigative notes, in advance of the

6 hearing. And if we want to dig deeper into it, that's the way to do it,

7 not to have Mr. Farrell stand up and represent or submit a declaration

8 that he's conducted some discussions with people in his office and

9 concluded A, B, or C, with all due respect.

10 And I finally point out: Whether or not a document or a witness

11 was accepted pursuant to our Rule 115 motions is not the standard as to

12 whether it was exculpatory and should have been produced under Rule 68.

13 There are two different standards. So there are witnesses and exhibits

14 that you chose not to admit from the Rule 115 evidence that still would

15 meet the exculpatory standard of Rule 68, which I make that point for two

16 reasons: One, so when you're looking at the scope of the evidence that

17 was wrongfully is you pressed you can define the scope; and two, in terms

18 of the prejudice, that material hasn't even been added to the record.

19 We'll never have a chance to present that evidence on behalf of our

20 client. That is lasting, permanent prejudice.

21 I'd like now to turn to a subject that is going to shame my

22 grammar school French, dolus eventualis. Is it Latin? There you go.

23 That's true shame. I guess we're talking about the French version of the

24 judgement, which misled me.

25 Although I query if a Latin phrase was used, why wouldn't that

Page 806

1 have been repeated in the English judgement? That's a bit of a mystery to

2 me. But in any event, we are where we are, and I want to address the

3 question.

4 Our position, and it is set forth in more detail in our appellant

5 brief, is that the Trial Chamber actually applied a standard much lower

6 than dolus eventualis, even though it may have cited to a dolus eventualis

7 standard. For example, in paragraph 562 of the judgement, it notes that

8 7(1) liability is being imposed because the appellant "ordered acts which

9 he could only reasonably have anticipated would lead to crimes."

10 That is a reasonably foreseeable standard. A reasonably

11 foreseeable standard is a negligence standard, whereas dolus eventualis is

12 a standard we believe in all systems which is closer to recklessness,

13 indeed wilful blindness is the term that would most closely define it, I

14 believe, in my legal system, in my national legal system. That is, a

15 person who chooses not to acquire knowledge that would have put them

16 directly on notice of the risk of harm.

17 So that is our principal concern with respect to the use, with

18 respect to the Gacice and Donja Veceriska items of this standard. We

19 don't believe an appropriate standard was used, as defined by the

20 Trial Chamber. So even if the term is used, and the term may well be an

21 appropriate standard, as defined by the Trial Chamber, it was misdefined,

22 misconstrued and applied in an impermissible way.

23 It's also not clear from the judgement whether dolus eventualis

24 was used in some way in connection with 7(3) liability. And we submit

25 that it could not have been the case, and because there's ambiguity, that

Page 807

1 is a further error in the judgement. 7(3) imposes liability for a failure

2 to take action, not for a failure to acquire knowledge of a commander's

3 subordinates' acts. And there's a quote here from the Celebici Appeals

4 Chamber judgement at paragraph 226 that is on point, and I quote: "The

5 point here should be that knowledge may not be presumed if (the accused)

6 had the means to obtain the knowledge but deliberately refrained from

7 doing so. The argument that a breach of the duty of a superior to remain

8 constantly informed of his subordinates' actions will necessarily result

9 in criminal liability, comes close to the imposition of criminal liability

10 on a strict or negligence basis."

11 We submit that, with respect to Gacice and Donja Veceriska, as

12 well as generally, the evidence did not satisfy either standard, either a

13 higher dolus eventualis standard or even the lower standard articulated by

14 the Trial Chamber. I think one of the examples in that paragraph of the

15 judgement is that because in October of 1992 there was an incident and

16 houses were burned in Novi Travnik, and Colonel Blaskic issued an order

17 directing that all units, Novi Travnik units, et cetera, be informed that

18 conduct is inappropriate, it must stop, et cetera, et cetera, that that

19 was notice that come April, in Vitez, Colonel Blaskic had this mental

20 state such that any use of any military unit exposed him to strict

21 liability for their later conduct. That simply cannot be the case. That

22 cannot be the standard in international law, or else we have come within a

23 hair of saying: War is illegal.

24 You can look at operations in Iraq. There are mistakes made.

25 There are civilians killed. There is a possibility that that's going to

Page 808

1 happen any time you send a patrol with a military mission, particularly

2 into a built-up area, looking for a suspect, for example, or any time you

3 drop a bomb, there can be civilian casualties. Does that mean you can

4 never do any of those things and it's illegal to do it if the activity

5 ever results in a civilian death? Of course not.

6 The discussion concerning artillery and infantry became somewhat

7 transformed yesterday, and I'd like to comment on that. We had been

8 talking about the use in the judgement of the artillery, followed by

9 infantry pattern as a type of signature pattern from which the

10 Trial Chamber drew certain inferences, but yesterday the Prosecutor said:

11 No, that's not why we are interested in artillery. We are interested in

12 artillery because it shows that Blaskic ordered all these attacks because

13 he alone controlled the artillery.

14 Again, that -- I'm sure that's a belief that counsel holds in good

15 faith, but counsel has a lack of understanding of the evidence in the

16 case, and I need to point you to the details.

17 Appellant testified that he commanded the large artillery, such as

18 the Nora Howitzer, that's N-o-r-a, that was the name of the gun, which was

19 a 152-millimetre artillery device, but that other weapons, such as

20 mortars, were not within his control. Those were infantry weapons. Every

21 platoon, whatever, had its own mortar or RPG. And that was borne out in

22 the testimony with respect to, for example, Ahmici. Was artillery used in

23 Ahmici? You see it in a lot of the documents. People talk about

24 artillery, shells coming in.

25 Question by Judge Rodrigues at transcript page 23880: "Was

Page 809

1 artillery used in Ahmici?"

2 Answer by Colonel Stewart: "I don't think so. I think it was

3 mortars, but I'm not certain."

4 Even the Prosecutor's own investigator, Mr. Akhavan, testified at

5 transcript page 5367: "There were a number of factors which led us to

6 believe it was an organised operation." He's referring to Ahmici. "For

7 one thing, the use of mortars, rocket-propelled grenades and other such

8 semi-heavy weaponry suggested it could not have been, let us say, a band

9 of just a few people carrying guns, ordinary guns."

10 52-millimetre mortars, 62 millimetre mortars, RPGs,

11 rocket-propelled grenades, those are all infantry weapons. There's no

12 evidence - and other witness were asked, no evidence - that walls in

13 Ahmici were blown through by heavy shells. The houses were burned in

14 Ahmici. There was a crime, make no mistake about it. No evidence of

15 heavy artillery. It's not there. The Prosecutor's point is irrelevant.

16 And indeed, the Prosecutor herself admitted in closing argument at

17 the trial that that was the case, that there were these other weapons,

18 mortars, et cetera, that were infantry weapons. See closing argument of

19 the Prosecutor 27 July 1999 at transcript page 143.

20 Now I want to touch for a moment on legal authority to discipline.

21 I want to refer you to page 88 of our brief, with respect to substantial

22 discussion of the fact that while appellant had the authority to initiate

23 disciplinary proceedings over regular HVO soldiers for infractions of

24 military discipline, that is a different thing from any criminal matter.

25 Criminal matters, under the laws in place in Bosnia-Herzegovina at the

Page 810

1 time, had to be referred to the military district courts and the military

2 prosecutors. Appellant had no authority to initiate a criminal

3 prosecution, and that's why you see him writing to the military police,

4 writing to SIS, saying: Conduct an investigation, and I want you to

5 forward your report to the military prosecutor, district military

6 prosecutor's office. They were the authority that had the lawful

7 authority to institute criminal prosecutions.

8 So when you hear about Colonel Blaskic telling a foot soldier:

9 "Get rid of those tennis shoes or I'm going to take care of you," we're

10 talking about discipline. We're talking about military discipline, not

11 shaving, not having a clean uniform, that kind of thing, which is not

12 particularly relevant to this case. The issues in this case involve

13 criminal conduct.

14 Now, there was a citation yesterday to Slavko Marin, for the

15 proposition that appellant actually had authority to punish the military

16 police and the Vitezovi, which is not correct. And Marin actually

17 testified, at the page cited, which is reporter's transcript 13970, that:

18 "For a member of the Vitezovi, a disciplinary measure can be imposed only

19 by the commander of the Vitezovi, and not General Blaskic. For a member

20 of the military police, it is only a commander of the military police that

21 can carry out this disciplinary action."

22 THE INTERPRETER: Could counsel please slow down again. Thank

23 you.

24 MR. HAYMAN: My apologies.

25 A word about Witness PT. There was a comment yesterday that

Page 811

1 Witness PT established that in fact the HVO knew and received reports that

2 there had been a crime in Ahmici as of April 18th, 1993. If you

3 look -- he -- Witness PT used that date, and this is another example of a

4 clear error that keeps being repeated and repeated and repeated. But if

5 you look at the testimony, Witness PT said he learned about Ahmici -- I

6 think we better go into private session.

7 [Private session]

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 812

1 [Open session]

2 THE REGISTRAR: We are in open session, Your Honour.

3 MR. HAYMAN: Now I will turn to the comments this morning by my

4 learned counsel across the well.

5 You have heard repeatedly that there was an attack on 20 villages

6 simultaneously on April 16th. For some perspective on this claim, I

7 suggest, if you look at a map, you'll see first of all four of those

8 so-called villages are actually Ahmici. Ahmici is comprised and is

9 adjacent to Ahmici, Santici, Nadioci, and Pirici. They're all hamlets,

10 they're all very small, they're all adjacent to one another. They were

11 all attacked in this activity by the Jokers and the military police. So

12 that's four right there. It's really one location, but that's four by the

13 Prosecutor's counting.

14 Then you have Gacice and Donja Veceriska, in the Vitez

15 municipality, and I note in passing that, while the Prosecutor's central

16 thesis is: Everything that happened was organised and simultaneous on the

17 20th of April, if you look at the evidence in the case, I think it's the

18 case of Gacice, there was actually negotiation for three or four days,

19 between the HVO unit and the Territorial Defence unit, over what would

20 happen. Nothing happened for three or four days while they negotiated.

21 Hardly an indication that someone issued an order: Go attack 20 villages

22 tomorrow morning at 5.30. If that order was issued, it sure wasn't

23 followed in Gacice.

24 And then you have two villages in the Busovaca area for which

25 appellant was convicted, two tiny hamlets, Loncari and Ocehnici. One on

Page 813

1 the 17th and one on the 19th. They're not on the 16th. Where's the

2 master plan? Where's the simultaneous attack at 5.30 a.m. on the 16th.

3 One of those is a village of 5 or 6 homes, 33 inhabitants. Everything

4 else, Your Honours, is in Kiseljak. And wasn't attacked on the 16th of

5 April. There were no attacks in Kiseljak on the 16th of April. So this

6 idea that there's a simultaneous attack on 20 villages at 5.30 a.m. on the

7 16th of April is a fiction, a very convenient fiction, but a fiction

8 nonetheless. And the evidence in the trial record is absolutely clear on

9 each of the villages that I identified.

10 May I inquire what our schedule is so I can just organise my work

11 as efficiently as possible, Your Honour?

12 JUDGE POCAR: Mr. Hayman, we will continue for 15 minutes now, and

13 then break for 20, 25 minutes, and then resume.

14 MR. HAYMAN: Very good. That's helpful. Thank you.

15 Could we call up PA12, please. This morning Mr. Farrell went back

16 to PA12, which is the order to the military police at 0130 on the 16th of

17 April. And again took the position that they never pursued at trial,

18 never questioned a witness, never got any witness at trial to say this was

19 a combat order, yet Mr. Farrell argued to you this morning: By golly,

20 counsel says this is a combat order. If you look at that order and you'll

21 need to push your "computer evidence" button to see it -- it does use the

22 word "combat order" in the instruction. But you've got to read the whole

23 phrase: "Combat order on securing the section of the road and repelling

24 any attack." And if you read paragraph 2, it's absolutely clear. It's an

25 order to block. It's an order to block approaches to the road. And in

Page 814

1 case of an attack, by precision fire repel the enemy. Precision means

2 carefully targeted, the opposite of burning houses and killing civilians.

3 Now, then Mr. Farrell suggested that there had been some kind of a

4 trick in the appellant's testimony at trial, and at 8.59 this morning - I

5 don't know if there's another way to identify the transcript - he pulled

6 up a question, or he read a question to appellant in his testimony to the

7 effect of: Other than the order 267, were there any other orders to the

8 military police on the 15th of April? Answer: No. I'm no sure that

9 counsel intended to suggest that this exhibit, PA12, was inconsistent with

10 that answer, but this exhibit of course is an order from the 16th of

11 April. It's not an order from the 15th.

12 Now I'd like to just briefly step through the meetings and the

13 orders on the 15th to 16th of April, because counsel did address that, and

14 I think it was done, unfortunately, in a bit of a fuzzy way, about midway

15 through this I'll need to go into short private session.

16 The sequence of events begins on the 15th with D267, a preparatory

17 order to repel terrorist activity. Your Honours will remember that very

18 morning an HVO brigade commander, Zivko Totic, the Zenica Brigade

19 commander, was kidnapped, his entourage of four were shot dead. The

20 pictures are in the record. You can look at a videotape looking at a car

21 full of bullet holes, et cetera, et cetera, a pretty ugly scene. And that

22 order, 267, is specifically directed to preparing to repel and be on the

23 alert for other terrorist activities, because it is well known that a

24 general attack can be preceded by attempts to liquidate the command

25 structure, command structure or brigade commanders and higher commanders.

Page 815

1 If you can liquidate your opponents' command structure, there are no

2 commanders left for when you launch a more general attack.

3 So 267 goes out. Then, and now we need to go into private

4 session.

5 [Private session]

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 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

Page 816

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 (redacted)

6 (redacted)

7 (redacted)

8 [Open session]

9 THE REGISTRAR: We are in open session.

10 JUDGE POCAR: You may continue, Mr. Hayman.

11 MR. HAYMAN: Thank you.

12 Mr. Farrell discussed four exhibits this morning, which are PA6,

13 7, 8, and 10, all for the proposition that the Vitez Brigade was in Ahmici

14 on the 16th of April. I note -- if you took those reports and you listed

15 all the different villages and locations that are discussed in those

16 reports, you'd have a list of -- I don't know if it's 8 or 12, a lot of

17 different locations, all within the Vitez municipality, not within the

18 orders and directions given to the Vitez Brigade, and in the case of, for

19 example Ahmici, exclusively in the province of the orders given to the

20 military police to go to the road below Ahmici and secure it. So with all

21 due respect to my colleague, these are -- the inference that he's urging

22 you to adopt is not a sound one.

23 And furthermore, I think that any doubts in that regard -- any

24 doubts in that regard should be drawn in favour of the appellant. He has

25 never had the opportunity to testify to you about these orders. He chose

Page 817

1 to testify at his trial below. Because he's not to have a new trial, per

2 your decision, he'll never have the chance to testify about these orders,

3 we'll never have the chance to question other witnesses at the trial about

4 them. And quite frankly, I'm very troubled by the notion that you could

5 find the evidence below deficient but then rely on new evidence that was

6 not tested in the way that a trial tests evidence, and substitute in the

7 new evidence and say: Well, the conviction is okay.

8 I think that might trouble all of us.

9 Further --

10 JUDGE POCAR: Mr. Hayman, Judge Guney would like to put to you a

11 question.

12 MR. HAYMAN: Of course.

13 JUDGE GUNEY: [Interpretation] Mr. Hayman, the combat order that we

14 have on our screens, was it signed by Colonel Blaskic? The combat order

15 which is 93, 93. We have it on our screens now.

16 MR. HAYMAN: This is PA7, I believe, and on the -- I have the

17 Croatian version in front of me. And it appears to be signed, yes.

18 JUDGE GUNEY: [Interpretation] In the fourth paragraph --

19 MR. HAYMAN: Wait, Your Honour. I'm sorry. I may be looking at

20 the wrong one. This is not the one I had. Which is this? PA12, I'm

21 sorry. PA12 also appears to be signed in the Croatian version.

22 JUDGE GUNEY: It was signed by the appellant?

23 MR. HAYMAN: It appears to be, yes.

24 JUDGE GUNEY: Okay. [Interpretation] Now, in paragraph 4, and I

25 quote: "I find Mr. Ljubicic personally responsible for effecting this

Page 818

1 task and preparation of the unit." [Interpretation] Within the frameworks

2 of effective control, I would like to have your reactions, please, to

3 this. How do you interpret things, as they stand? Somebody who could

4 issue an order of this kind, did he actually have effective control?

5 MR. HAYMAN: Appellant was given, on the 15th, by the powers that

6 be in Mostar, the ability to attach the military police to his command in

7 the case of an all-out attack by the BH army forces. This order, PA12,

8 was issued prior to that attachment. It is an order that relates to

9 policing activities, the securing of the road. It -- he had the ability

10 to do that, because under the rules of the military police administration,

11 he could use the military police for policing. And it was only until

12 there was a general conflict between the two armies, the next day, that

13 the actual attachment would have taken effect, and at that point he would

14 have had the additional authority, de jure authority, to order the

15 military police to take a combat measure. That is the de jure picture.

16 The de facto picture is totally different. You have heard from

17 multiple witnesses, you have seen from many exhibits, that the principal

18 person who could control and exercised effective control over the military

19 police, the Jokers, and Pasko Ljubicic, was Dario Kordic. And our

20 position is that because Dario Kordic had that ability to exercise

21 effective control, that when the military police and the Jokers, when they

22 commit a crime, when they go do something, it was incumbent on the

23 Trial Chamber to look at the facts and circumstances and specifically

24 analyse: Is this something that was ordered by Blaskic, because he

25 controlled them at this time? Was this something that was ordered by

Page 819

1 Kordic, because he controlled them at this time? Or indeed, with respect

2 to some of these units, were they committing criminal acts, looting,

3 stealing, for their own personal gains at certain points in time? So

4 that's the inquiry, that's the framework that we submit.

5 JUDGE GUNEY: Thank you.

6 JUDGE POCAR: Thank you, Mr. Hayman. I think it's time to break

7 now. We resume at 12.35, in 20 minutes.

8 --- Recess taken at 12.15 p.m.

9 --- On resuming at 12.37 p.m.

10 JUDGE POCAR: Please be seated.

11 So we resume the hearing with the submissions of the appellant in

12 reply.

13 Mr. Hayman, you have the floor.

14 MR. HAYMAN: Thank you, Your Honour. First, I did bring copies

15 today -- excuse me. I did bring copies today of what we showed on the

16 monitors yesterday, and I don't -- I'm not suggesting that any of that be

17 evidence, but I'd like to lodge it so that at least it's in the record,

18 because there will be portions in the transcript where we'll be referring

19 to something, and unless that document is at least lodged in the record

20 are, the transcript will be difficult to follow. So with your leave, I'd

21 like to do that.

22 JUDGE POCAR: That's fine, Mr. Hayman.

23 MR. HAYMAN: Thank you. We'll provide that to the staff.

24 There's one more item I'd like to touch upon with respect to these

25 four orders or reports that Mr. Farrell referenced this morning, PA7, 8,

Page 820

1 9, 10, I believe they are, and that is the use of the term "our forces."

2 Because the Prosecutor is arguing that our forces in the context of these

3 orders means the Vitez Brigade, not our forces, Croatian forces. I invite

4 you to look at the many other military documents in this case, HVO and BH

5 army, and I'm going to show you one now, which is the 12th exhibit to the

6 fourth Rule 115 motion, which is a BH army report. If you look at your

7 computer evidence button, throughout this document, other documents,

8 clearly, our forces is a common term used by both militaries in this

9 culture to refer to the forces of our side. This particular report and

10 this paragraph is referencing sending the 7th Muslim Mountain Brigade to

11 Ahmici to assist our forces. The Prosecutor does not maintain that as of

12 the 16th of April, the 7th Muslim Mountain Brigade was already in Ahmici.

13 They were not. And we're not suggesting they were already there either.

14 Our forces is a commonly used term to refer to forces on the same side.

15 So PA6, 7, 8, and so forth do not support the inference that counsel for

16 the Prosecutor is suggesting.

17 Now I'd like to go to PA38, which is a request on the 22nd of June

18 from Colonel Blaskic to the Ministry of Defence, asking them to delay, for

19 about a month, the dissolution of the Vitezovi because of urgent military

20 circumstances. And he did do that. This report contains that request.

21 And if we can find the one month and make sure that is visible, I would be

22 grateful. You can work on that, perhaps. One month. There's a delay.

23 Andrew, there's a phrase where he says: I believe it's necessary to delay

24 this dissolution and reorganisation of the group for about a month. Which

25 given the encirclement and the possible collapse of the Vitez-Busovaca

Page 821

1 enclave, is not -- is not unreasonable, it's not surprising, and this is a

2 new exhibit.

3 If the Prosecutor is suggesting that this order gives rise to

4 failure to prevent liability, I pose the question: What crime? What

5 crime did the Vitezovi commit after the 22nd of June, 1993? What did

6 Colonel Blaskic fail to prevent by asking for a delay of one month? Let's

7 think about that. Well, there are no charged crimes by the Vitezovi after

8 the 22nd of June. It is true the judgement convicted the appellant for

9 the Vitezovi's attack on Stari Vitez on the 18th of July. That was not

10 charged in the indictment. There's a charge of an attack on Stari Vitez

11 in August of 1993, no proof was ever produced of that claim. There's no

12 attack in July of 1993 charged in the indictment on Stari Vitez. Another

13 example of us trying to figure out what we're defending against at trial.

14 So I submit, number one, the conviction for the Stari Vitez July

15 incident must be reversed anyway, because it was not properly charged; but

16 number two, you have now heard the testimony, the clear testimony, of BA5,

17 to the effect there were no civilian deaths in the 18 July 1993 military

18 fiasco, by the way, and it was a fiasco, 26 HVO dead, they were apparently

19 marching across an open field towards Vitez and they were just mowed down.

20 Not an attack that had any indicia of a professional military combat

21 operation, I note which was I think commented on in the evidence. But BA5

22 said no civilian deaths, no significant civilian casualties as a result of

23 that. So we don't believe there was a crime on the 18th of July. We

24 don't believe any crime was charged, and in any event, we think -- and

25 that is our analysis of PA38.

Page 822

1 Now I'd like to go to PA41. This is very interesting, and is

2 again an example of I really -- I believe counsel, vigorous counsel, doing

3 their best to present the evidence to Your Honours, but this evidence has

4 been mispresented to Your Honours. There are two documents in this case

5 which are SIS reports, but they are not from SIS Vitez, which was

6 Sliskovic, or SIS Mostar. They're from the Vitez centre, SIS Vitez

7 centre. What was the SIS centre in Vitez? The testimony in the case was

8 that another group affiliated with Kraljevic of the Vitezovi set up their

9 own intelligence centre in Vitez; indeed, Kraljevic appointed himself the

10 deputy chief of the Vitez SIS centre. And if you look at PA41 and PA3,

11 which we're going to look at in a moment, these are documents from

12 Kraljevic's SIS centre in Vitez. How do we know this? If this is PA41,

13 first I'd like to blow up the top. Good.

14 Travnik Vitez centre. This is unlike any other logo letterhead

15 that you will see on any SIS reports. For example, there's a

16 SIS -- strike that. For example, compare with D608. It's under seal.

17 I'm not going to say anything more about it. Compare this letterhead with

18 the letterhead on Defence Exhibit D608 and you will see the distinction.

19 THE INTERPRETER: Can you please slow down for the interpreters.

20 MR. HAYMAN: There's one other of these documents. It's PA3. So

21 now we're going to blow up again the letterhead, so you can see that once

22 again it's this SIS centre Travnik/Vitez. And then at the end of this

23 document, there's another tell-tale clue that this is a Kraljevic

24 document. Look who signed this document. Godfather. That is Kraljevic.

25 That is one of his aka's, consistent with his modus operandi. So -- and

Page 823

1 how -- why else do you know this? Why else should you infer this? PA41

2 gives a description of the Kalen gas station incident, which is totally

3 inconsistent with all the other documents in the case. We have in the

4 other documents Blaskic writing to Mostar, complaining that the Vitezovi

5 have taken over the gas station. We have a reply from Mostar, again

6 saying Vitezovi, you're subordinated, you know, do what you're told,

7 whatever. And then we have this outlier document, PA41, which is a

8 totally inconsistent version of events, highly favourable to Kraljevic,

9 written or controlled by Kraljevic. And then similarly, if you look at

10 PA3 -- why don't we go to that? That's the second document that is

11 authored by this SIS Vitez centre.

12 If you look at it, what this document basically talks about is

13 that there's this horrible clique in and around Vitez that is portrayed

14 negatively, and everyone's in it except for Kraljevic. And that is why

15 Blaskic is lumped in with the Kordic Busovaca group, because Kraljevic was

16 no friend of Blaskic's. You've heard that indeed, at one point, Kraljevic

17 tried to liquidate or kill Colonel Blaskic. That's in the SIS reports,

18 the true Mostar SIS reports, et cetera.

19 So PA41 and PA3 are two very tricky documents. They purport to be

20 bona fide SIS documents. They're actually documents from a SIS centre in

21 Vitez that was controlled by Kraljevic. Indeed, he was the deputy of that

22 centre.

23 Now I'm going to go to the term "mop-up," which we've spent a fair

24 amount of time on in the last few weeks. I have two further comments on

25 this. One is: My learned opponent said this morning that the order D300,

Page 824

1 which is one of the orders to attack in Kiseljak, that it "left the door

2 open to them, the forces in Kiseljak, to carry out ethnic cleansing

3 operations."

4 I don't know what that means. I don't know what standard that's

5 referring to. If you give someone a gun and you tell them they're a

6 soldier, are you leaving the door open to them for carrying out ethnic

7 cleansing operations? If you look at D299 and D300 in conjunction with

8 the war diary, I really -- I ask Your Honours: What else could Blaskic

9 have done to give more specific directions to those units in Kiseljak to

10 stay out of the villages and to pursue the military targets, the high

11 ground? I submit there is nothing else he could have done. He pursued

12 that very diligently.

13 My second point on mop-up is the Prosecutor relies on

14 Brian Watters' testimony, something to the effect that there was ethnic

15 cleansing in Kiseljak and it may have been described as a mopping-up

16 operation. This issue of the term "mop-up" was not an issue in the trial.

17 It was not litigated. It was not scrutinised with one per cent of the

18 scrutiny that it has been given the last two weeks or ten days. So my

19 point there is: Watters was not shown, to my recollection, any of the

20 relevant orders. He was not asked about the use of the term "mop-up," he

21 was not asked about the context in which that term was used in the

22 relevant orders. This comment was an aside, and without any context,

23 without being shown an order by Colonel Blaskic, and that is all it is.

24 It was a side comment.

25 And make no mistake: We are not suggesting that the term "mop-up"

Page 825

1 could never be used to imply ethnic cleansing. In the context, in a

2 particular context, it might well be capable of being used, but what we

3 know from the testimony here, the expert testimony and the rigorous review

4 of the actual orders in the case, as well as comparison with other

5 documents in the case, that Colonel Blaskic, in all of these documents,

6 and in the war diary, used "mop-up" with its strict military usage. And

7 Mr. Nobilo pointed that out, I thought very well yesterday, within he

8 pointed out the war diary section that said: Don't engage in mop-up. You

9 will have too many casualties. Clearly a reference to

10 military -- eliminating military pockets of resistance.

11 One moment, Your Honour. I'm checking my notes for missed items.

12 There was a reference to a report on or about May 9th that

13 Colonel Blaskic sent to the HVO in Mostar, talking about a number of

14 things, but including references to Ahmici. And he does express in that

15 report concern that the media is focussing exclusively on Ahmici and not

16 providing any coverage of crimes against Croats in the Lasva Valley. And

17 indeed, there had been crimes. There are cases charged before this

18 Tribunal, the Lasva Dusina massacre, et cetera, where Croats were

19 massacred, and the media simply hadn't picked up on it. And I would ask

20 you to understand the frustration that a commander could have at that

21 situation, which is very different from any motive or desire to cover up

22 or not see through to the end of a thorough investigation and Prosecution

23 a massacre like the massacre in Ahmici.

24 And I also note: In that report, Colonel Blaskic wrote:

25 Mate Boban should have been here in Vitez today, which I submit is a

Page 826

1 reference to: He should be here. He should be here to see these things

2 himself. Mate Boban was the president of Herceg-Bosna, the

3 Herzegovinian-based political entity.

4 So, I think if you look at Colonel Blaskic's statement at the

5 press conference, the read on his mental state by Colonel Stewart that he

6 was horrified on the 22nd of April, when he learned about Ahmici, the fact

7 that he did not tell Colonel Duncan on the 9th of May that Ahmici was some

8 kind of a Serb attack; in that context, if you look at this report, this

9 communication to Mostar, these are consistent. They are consistent

10 messages; they reflect a consistent mens rea state, and one which is

11 radically different from the mens rea state that the Prosecution has gone

12 to great lengths to try and depict in this case.

13 I'd like to say a short word about persecution, which was

14 commented on by one of the counsel this morning. Persecution is a

15 specific intent crime, as described in the Krnojelac appellate decision,

16 and indeed an accused must intend each and every underlying act.

17 Persecution is second in gravity and severity only to genocide. There is

18 still in this case no evidence of discriminatory intent. Counsel spoke

19 this morning of the appellant's discriminatory actions speak louder than

20 his words. What actions? What did he do? We're still, seven years

21 later -- what exactly did he do? We have his orders now. What is it that

22 he did that the Prosecutor maintains is discriminatory?

23 He gave orders that Muslims were in the to be removed from their

24 homes, he gave orders that homes were not to be burned, he gave an order

25 on April 18th, 1993, within 48 hours of the general conflict, that all

Page 827

1 detainees should be released. Do those orders evince a discriminatory

2 intent or animus, or do they evince something else? That is, a military

3 commander, a young military commander with the training of the rank of

4 captain in the JNA trying to do things by the book, writing orders,

5 expecting them to be obeyed, when in reality, the people that perhaps had

6 the most control in the situation were the mafia-type figures, who had

7 local connections, local control, or were the kind of brazen people, like

8 Rajic in Kiseljak, or Kraljevic in the Vitezovi, who would pull out their

9 side arm and put it up against the head of another in order to force their

10 will.

11 The appellant was not that kind of person.

12 Every witness to testify in this case that has commented on the

13 subject has testified to an absence of any animus or ethnic bias on the

14 part of the appellant. According to the Prosecutor, that was all staged.

15 He was just very careful what he said, for years on end, and it was a

16 trick. You're professional Judges. We submit it to you for your

17 evaluation.

18 We've already spoken of the Duncan error with respect to the May

19 9th meeting. We've already spoken of the Danas interview, written

20 interview.

21 I want to turn now briefly to the issue of orders, and the

22 ambiguity in the Prosecutor's positions with respect to how Your Honours

23 should evaluate the orders of the accused. At times, they have suggested

24 they were sham orders. At times they have suggested that the humanitarian

25 orders he issued should not be given any weight because they were issued

Page 828

1 after events, or after complaints, and thus they weren't true preventative

2 orders. That seems to us to be -- we have two responses to that. One is,

3 I'm going to go through -- well, we've already gone through orders that

4 predated the April conflict, but that is the first point. There were a

5 number of orders that predated the general conflict and the commission of

6 crimes in April. If those aren't preventative, then we don't know how the

7 Prosecutor defines preventative.

8 But furthermore, when a crime was committed, when a house was

9 burned but no perpetrator is identified, and Colonel Blaskic issued an

10 order compelling the removal of criminal elements from units or ordering

11 that any such activity immediately cease, et cetera, the Prosecutor takes

12 the position: Well, that's not a preventative order. What would they

13 have had him do? We submit, if he had not issued these orders to try and

14 curtail all such misconduct, you would of course be hearing about that

15 now, that a failure to act would be a failure to prevent further

16 misconduct.

17 So we have some of the humanitarian orders that he issued

18 displayed here. We have a great deal more of them set forth at pages 38

19 and 40 of our brief. These particular orders deal with detainees, and

20 there are similar lists and recitations of orders in evidence that relate

21 to the protection of civilian property, the protection of civilians, and

22 so forth.

23 I also note the suggestion -- and they don't come out and make the

24 argument, but the suggestion that these are all sham orders is illogical,

25 given that, one, the Trial Chamber never made a finding that appellant's

Page 829

1 orders were sham orders; and two, these orders, with one exception, which

2 I'll comment on, these orders were marked confidential, military secret.

3 They went nowhere but the file and to the units, and then were

4 disseminated downward. They were not mailed out on the front of the

5 command or sent to CNN or the ICRC and so forth. Now, there is one order

6 that you saw during the hearing last week, which was actually in English,

7 was prepared and signed by the appellant, which, quite plainly -- and then

8 it was directed to BritBat and ECMM, because that was an order

9 specifically in light of what had occurred prior to that date that

10 appellant wanted to get that order in the pocket of every EC monitor and

11 every UN personnel so if they encountered a problem in the field they

12 could pull out Blaskic's signed order, and in essence, help spread the

13 word. But with the exception of that one order, all these orders were

14 sent to the troops. They weren't sent to the media, they weren't sent to

15 international humanitarian organisations. And that was part of the

16 problem. You heard from the Prosecutor this morning that read a portion

17 of Colonel Stewart's statement at trial. Colonel Stewart testified that

18 he's sure, he was sure Colonel Blaskic was horrified by the crime in

19 Ahmici, but Colonel Stewart became dissatisfied with the lack of progress

20 on the part of Colonel Blaskic in bringing anyone to justice for the

21 Ahmici crime. Why would Colonel Stewart have been dissatisfied with that

22 process? He didn't have any information about it. These were internal

23 processes. The orders to SIS to investigate, the Sliskovic report, the

24 other documents, they were internal, confidential, military documents, and

25 they would be in any army. As Watkins told you, we should not expect

Page 830

1 Colonel Blaskic or any other professional military officer to air their

2 dirty laundry with international observers.

3 And if Colonel Blaskic had had a more effective public relations

4 or information and propaganda department, if he had had some professionals

5 in that area, they might have done better, I'm sure they would have, at

6 educating the international organisations that were on the ground with

7 respect to what was going on, what was being done to try and maintain

8 control, protect civilians, investigate the Ahmici case, and so forth.

9 Now, I want to comment briefly on one of these orders, a different

10 type of order, PA52. PA52 is the -- this is a Prosecution document, and

11 it talks about not allowing the representatives of the Red Cross to visit

12 facilities other than official detention, et cetera. You have this

13 document. It's in evidence. And what I'm concerned about is that at the

14 11th hour, in the form of this rebuttal evidence, you see a handful, a

15 couple of orders that appear to be inconsistent and out of character with

16 everything else that you see from Colonel Blaskic. And there are only a

17 couple of them, and --

18 I'm getting French on channel 4. Perhaps I'm being punished for

19 my earlier --

20 JUDGE POCAR: Everybody has been shifted to the French

21 translation, actually. Technical problem.

22 Are we having now the English on channel 4? Can --

23 MR. HAYMAN: Shall we test it.

24 JUDGE POCAR: Yes. That's fine.

25 MR. HAYMAN: I hear only English now.

Page 831

1 JUDGE POCAR: Now it's fine.

2 MR. HAYMAN: I was speaking of PA52, and the concern here is we

3 have an order such as this that comes in in rebuttal, and there's no

4 testimony about it. There's in explanation. The appellant will never

5 have the opportunity to comment and give testimony on this. It says:

6 Don't allow the representatives of the Red Cross to visit facilities other

7 than official detentions, and do not admit that there are any other

8 detainees anywhere else.

9 We don't know what the background here is. We don't know. We do

10 know that there are a number of other orders, including on 29 April,

11 within 48 hours of this order, Colonel Blaskic issued an order to all

12 brigades - and this is Defence Exhibit 366 - to identify and release all

13 detainees and to cooperate with the Red Cross in this process. What I

14 would note with respect to this order, PA52, is there has never been a

15 claim that detainees were concealed from the Red Cross, there's never been

16 a claim that the Red Cross was denied access to any detention centre,

17 never been charged, no proof, no argument.

18 So why is PA52 here? One could speculate, and we're not trying to

19 withdraw it from evidence. It's in evidence. You have it, and you

20 absolutely should consider it. But we submit that we don't have enough

21 information for this to be a meaningful document. And in any event,

22 whatever it is, it appears to relate to something that has never been

23 charged as a crime in this case, and there's no evidence that any crime

24 was committed, because, as I said, there's no evidence that any detainee

25 was ever concealed or that the Red Cross was ever denied access to any

Page 832

1 detainee.

2 Similarly, Exhibit 56 is another late-coming document to this

3 case, which is the document in which the third paragraph was crossed out

4 by the appellant. It's a warning relating to the death -- the deaths of

5 MOS members, that someone has been killed by a sniper while digging

6 trenches at our defence lines. And again, we don't know more about this

7 document than the face of the document. We know that the appellant did

8 not agree with the third paragraph, which he crossed out. We know he

9 didn't draft the document. If you look at the initials in the lower

10 left-hand corner, he was not the author of the document. And we know that

11 the appellant issued numerous orders concerning the proper treatment of

12 detainees, both before and after PA56. Defence Exhibit 373 is an order on

13 the 21st of June, which, among other things, forbids the uses of prisoners

14 of war for coerced engineering projects on the territory.

15 And I note that the evidence in the case with respect to work

16 platoons is that work platoons were organised to prepare defensive lines,

17 not on front-line locations. That's Prosecutor's Exhibits 715 to 717.

18 And that those work platoons were composed of Croats, Muslims, Serbs, and

19 gypsies. Work platoons were part of the law of the former Yugoslavia.

20 You were conscripted, you either fought in the armed forces or you worked

21 in a work platoon. So that is the context for that issue.

22 And with respect to the Red Cross access issue, we have a number

23 of exhibits in evidence. Here is a list of some of them. Granting access

24 to international organisations, 16 January, 27 January, 13 February, 21

25 April. And these orders are entirely consistent with the testimony of

Page 833

1 Mr. Watkins that he got access when he needed it, and he got it through

2 Colonel Blaskic, who helped him get access for international organisations

3 to where they needed to be. And on this second slide, there are five

4 additional humanitarian orders.

5 If I could take a brief moment to confer with co-counsel,

6 Your Honour.

7 JUDGE POCAR: Please.

8 [Defence counsel confer]

9 MR. HAYMAN: Your Honours weren't at the trial, and -- do we have

10 audio? Do we have audio?

11 [Videotape played]

12 "Q. In your meetings and conversations with

13 Colonel Blaskic, did he ever threaten any harm towards ECMM, BritBat or

14 any other international organisation?

15 A. No.

16 Q. In fact he cooperated with ECMM, wouldn't you agree

17 with that?

18 A. It seemed so. Whenever we had a request, he tried

19 to come forward to us and assist him."

20 That was Mr. Friis-Pedersen, 16 December 1997 at 5510.

21 [Videotape played]

22 "Q. Did Colonel Blaskic express any ethnic animosity

23 towards any ethnic group?

24 A. No. I think that he was saying to me that he felt

25 that people ought to be able to live together."

Page 834

1 MR. HAYMAN: That was Charles McLeod, author of the report on

2 interethnic violence, 28 January, 1998, at 6445.

3 [Videotape played]

4 "Q. You said that Mr. Valenta expressed views which

5 could be described as being in favour of ethnic division; correct?

6 A. Yes. Yes. Yes.

7 Q. Did he ever hear or hear of Tihomir Blaskic

8 expressing any such views?

9 A. No."

10 MR. HAYMAN: That was Roy Hunter, 11 December 1997 at 5125.

11 [Videotape played]

12 "Q. In fact, is it fair to say that Colonel Blaskic

13 never in any conversation with you spoke of Muslims with racial prejudice

14 in his statement?

15 A. He was -- that's correct, yes, that's correct."

16 MR. HAYMAN: That was Alastair Duncan, 3 June 1998, at 9172.

17 [Videotape played]

18 "Q. Were you ever told that Colonel Blaskic had made any

19 inflammatory or ethnically prejudicial or derogatory remarks on TV, radio,

20 in speeches or otherwise, during your tour of duty? Did you ever receive

21 such information?

22 A. I did not."

23 MR. HAYMAN: That was Henrik Morsink, 2 July, 1998.

24 [Videotape played]

25 "Q. [Interpretation] Tihomir Blaskic ever speak against

Page 835

1 the Muslim as a people?

2 A. [Interpretation] No."

3 MR. HAYMAN: That was Fuad Zeco, 26 September, 1997.

4 One more.

5 [Videotape played]

6 "A. [Interpretation] I never heard Mr. Blaskic say

7 anything bad about any nationality, or that he would give bad names to

8 other -- members of other ethnic groups. I never heard him do anything of

9 that kind."

10 MR. HAYMAN: Ivica Pervan, 3 November 1998.

11 Your Honours, based on all of the evidence in the record, we

12 believe that no reasonable tribunal of fact could have convicted appellant

13 of the crimes charged. We ask you to acquit him, based on the totality of

14 the record. We thank you for your efforts on this case. I'd also like to

15 thank the staff, the technical staff, the staff of the Registrar's Office

16 that have been extraordinarily helpful to our being able to participate

17 effectively, and indeed, they are a symbol of the fairness and the justice

18 that we find in this institution.

19 With that, we conclude our argument. The appellant would like to

20 make a brief statement when convenient.

21 JUDGE POCAR: I thank you, Mr. Hayman.

22 May I first turn to my colleagues, if they want to put any

23 question to the Defence.

24 So that is not the case. We still have on our agenda the item of

25 a personal address of General Blaskic to the Court. Before turning to

Page 836

1 this, I would like to thank both parties for their very professional

2 arguments. We are here to do justice, and both the Prosecution and the

3 Defence have greatly assisted the Bench. I say that on behalf of the

4 entire Bench. This is a very complex case that has lasted a long time,

5 both at the trial and at the appeal stage. It is therefore also important

6 that we have had very professional assistance from both sides, Defence and

7 Prosecution.

8 Now, General Blaskic, would you rise, please. Should you wish so,

9 would you like to address the Court briefly, General?

10 THE APPELLANT: [Interpretation] Yes, I do, Mr. President. Your

11 Honours, I should like to thank you for giving me this opportunity to

12 address you, and I should like to express my regrets for all the

13 casualties of this war, particularly the Muslim Bosniak casualties, who

14 lost their lives through the acts of individuals and members and groups of

15 the Croatian Defence Council. Those members of the Croatian Defence

16 Council who perpetrated crimes have put shame on our army and the Croatian

17 people in Bosnia-Herzegovina, to which I myself belong to that people.

18 They have thrown shame on all honourable defenders, those who defended

19 their country, their homeland, Bosnia-Herzegovina.

20 I never ordered a single crime to be committed, and I did

21 everything in my power to prevent any crimes from being committed and to

22 clear up the units of the Croatian Defence Council from the criminals. I

23 am very sorry that in the event of a war, and during those critical years,

24 I did not have more power, a better-organised army, to prevent the crimes

25 which unfortunately occurred in Central Bosnia. Although I am conscious

Page 837

1 of the fact that within the frameworks of my limited possibilities, I did

2 try to prevent violence towards civilians, I am also conscious that in

3 addition to that, too much violence was done.

4 When the disintegration of the former Yugoslavia began, I left the

5 Yugoslav People's Army and went to Austria, intending to start a peaceful

6 life there. However, once my homeland, Bosnia-Herzegovina, was

7 jeopardised by the Montenegrin Serbian aggression, and especially my local

8 community in Kiseljak, which was attacked, I felt it my duty to accept the

9 call by the leadership of the Kiseljak municipality, which was populated

10 by Bosnian Muslim and Croatian people, and to help them to come to their

11 assistance in the defence and in the organisation of military units there.

12 I was born in the region. My parents lived in the region, and all

13 my relatives did too.

14 When I became the commander of the Operative Zone of Central

15 Bosnia, I was 32 years old, and my last post in the Yugoslav People's Army

16 was deputy commander of the battalion commander. And I had the rank of

17 captain when I left the Yugoslav People's Army. Before taking on the

18 command of the Operative Zone of Central Bosnia, I was not in command of a

19 single unit greater than a company, that is to say, 100 to 120 soldiers.

20 That was the full complement. The task to organise a Croatian Defence

21 Council, with the necessary military control, was a very difficult task,

22 and a very complex one as well, because what was needed was continuous

23 defence operations and activities, and to use that same army to organise

24 the overall military set-up. And I think that that was not fully -- that

25 was not done even until the end of 1994.

Page 838

1 I believed in the establishment of a joint command with the Army

2 of Bosnia-Herzegovina, so that together we could defend Bosnia-Herzegovina

3 from the Serb aggression. And never did it enter my mind that I would

4 ever be placed in a situation where I would be fighting our allies, the

5 Army of Bosnia-Herzegovina.

6 To my great chagrin as a commander and as a citizen of

7 Bosnia-Herzegovina myself, because of the overall global policy that was

8 being waged and the adverse events that took place during the war,

9 tensions grew and burgeoned between the Army of Bosnia-Herzegovina and the

10 HVO, and a military conflict broke out in 1993.

11 When the civil war began between the Army of Bosnia-Herzegovina

12 and the Croatian Defence Council, I collaborated strongly with all

13 representatives of the international community, and I told many of them

14 that they were in fact our allies, for us, together with the BH army, to

15 be able to establish a truce and to sign an agreement on a truce.

16 However, as I was also a military commander in the midst of this

17 conflict, it was my duty, and I also had the authority and competence, to

18 order legal, lawful combat operations against the forces of the

19 Bosnia-Herzegovina army, which is what I did. Although I very much regret

20 that the conflict ever took place, it was my duty, however, to protect the

21 Croatian community in the enclaves, and all the population living in those

22 isolated pockets throughout Central Bosnia.

23 My lawyers have already explained why I am innocent, with respect

24 to the indictment, and it is not intention to present all the arguments in

25 my defence here and now. However, I should just like to mention Ahmici.

Page 839

1 I cannot but mention Ahmici. I did not plan anything, I did not order

2 anything, nor did I in any way take part in the commission of crimes in

3 Ahmici. I hope that this is quite clear, after my own testimony and after

4 all the new documents that were presented here in Court and that were

5 accepted within the appeals process and after the new witnesses that we

6 heard testimony from in the past few days. The orders that I issued on

7 the 15th and 16th of April, 1993 have nothing to do with the crimes

8 perpetrated on that same day. I issued the orders for my -- because of my

9 justified fears, that the HVO in Central Bosnia would be attacked and that

10 it would be routed, destroyed, especially in Vitez, where the situation

11 seemed without any exit.

12 When Colonel Stewart, from UNPROFOR, provided me with the

13 information about the crimes in Ahmici, I was deeply shocked and upset,

14 and the true scope of the crimes I got to know only here during my trial.

15 I called a meeting of the commanders of the operative zone when I heard

16 about it. I read Colonel Stewart's letter out and I demanded SIS to

17 conduct an investigation therein.

18 I asked assistance from Colonel Stewart as well. I did so in

19 writing. The next day I sent him that letter, asking for assistance, and

20 several days later, once I had toured Ahmici, at a press conference for

21 domestic and foreign journalists, including the BBC and the reporter

22 Martin Bell, and also some representatives of UNPROFOR, I was the first

23 Croat who said that what happened in Ahmici was a horrendous crime. I

24 condemn the crime, and I stressed that I would demand an investigation to

25 be undertaken. I also stressed that nothing like that should ever be

Page 840

1 repeated again. And I still consider that I did everything in my power to

2 implement an investigation of that kind, because I knew that the members

3 of the military police were in Ahmici. I asked SIS to conduct that

4 investigation, because SIS was the sole competent authority to conduct an

5 investigation of the military police.

6 As we have heard so many times today, and in the previous days,

7 about the interview that appeared in the weekly Danas, I feel that I have

8 to mention it myself. As I've already explained during the course of my

9 testimony at trial, I never talked to that journalist in actual fact. The

10 interview took the form of a list of written questions which was faxed to

11 the headquarters of the operative zone in Vitez, and my assistant wrote

12 out an answer, a response to those questions. I failed to control the

13 answers and responses made to those questions, or that list of questions,

14 and I came to understand that that was a mistake, allowing the article to

15 come out in print without my authorisation, and I am ashamed that members

16 of my headquarters were able to lie like that and that that kind of

17 article was ever allowed to appear in print.

18 However, I should like to stress that the interview does not

19 express my stands and positions with respect to the crimes and that I

20 presented my positions both at a press conference, and that Colonel

21 Stewart and Martin Bell and all the rest of them who were present at that

22 press conference were able to hear my positions. When the crimes in

23 Ahmici were committed, I realised that I had to do everything in my power

24 to conduct an investigation to prevent a repetition of crimes like that,

25 and in that respect, I issued a series of humanitarian orders to ensure

Page 841

1 the application of humanitarian law, international humanitarian law, and I

2 tried to set up and organise the army, to organise it better and to

3 increase discipline in the army and within the units of the Croatian

4 Defence Council.

5 At the same time, I did my best to get authorisation from my

6 superiors to place the military police under my control, so as to make it

7 an instrument of justice and the law instead of a weapon in the hands of

8 those who exerted violence, especially towards the Bosniak Muslims.

9 As you have learnt throughout this trial, I have -- I did try to

10 replace and succeeded in replacing the command of the military police, and

11 later on to reorganise and restructure the entire military police force,

12 and I personally endeavoured to organise training, although I had no

13 military police knowledge beforehand, because I was never an officer of

14 the military police myself. I hope that thus far you have been able to

15 understand the very difficult tasks that stood before me and how difficult

16 it was to command forces of the HVO faced with a complete encirclement and

17 siege in 1993, militarily speaking. And I'm militarily convinced that

18 every soldier would say what Colonel Stewart told me before he left, that

19 I was in a situation in which it was difficult to find a way out, a

20 situation in the Vitez pocket in which the people and the army would be

21 routed and destroyed.

22 It was also impossible to control the forces and leaders in the

23 enclave who had their own plans. You have heard here in the courtroom

24 about the differences between my own positions and those of the extremist

25 political leaders in Central Bosnia, their positions.

Page 842

1 Perhaps you're wondering and asking yourselves how I could have

2 met with them and worked with leaders of that kind. I should like to tell

3 you that I was a professional soldier and that I considered it to be

4 my -- that my mission was a military mission, exclusively. I did send out

5 reports to the political leaders of the community of Herceg-Bosna, and

6 when I was assigned a military task, I endeavoured to find the best way of

7 carrying it out. But first of all, a military one and a lawful and legal

8 one, to put it into effect. I did not know about the criminal military

9 operations, and I never carried them out myself.

10 The positions of the extreme nationalists were ones that I never

11 shared myself, nor did they influence me in any way, myself as a soldier,

12 and I did everything I could to protect the entire population within the

13 enclave, while also leading the HVO in that difficult year of 1993.

14 Perhaps I should have made more public statements and stood up

15 against the positions of the leaders, the political leaders, but that was

16 contrary to my professional code of conduct, as an officer, to criticise

17 political leaders vis-a-vis third parties. That is something that I

18 myself never did.

19 Instead of that, I thought that it was my duty to reform the

20 Croatian Defence Council, to organise it and structurise it better, and

21 that I myself could deal with the dirty linen that existed in my own

22 house. Although I wasn't able to prevent all the crimes, we did succeed

23 in defending the enclave successfully, and also to prevent violence, so

24 that after Ahmici, there were no similar crimes that were committed. So I

25 am proud of that success, just as I am that we managed to defend ourselves

Page 843

1 within the enclave.

2 In the second half of 1993, I almost wholly succeeded in

3 establishing control and discipline and to make it impossible for any

4 violence to be exerted towards the Bosniak Muslims. The question was

5 often raised in court why I didn't resign. That was a question I was

6 asked. I am fully conscious that resignation for me, after Ahmici,

7 perhaps would have been a way out. Perhaps I would never have been

8 brought before this Tribunal and accused. However, had I resigned, faced

9 in a situation of siege and encirclement, when the ratio of forces was

10 1 to 10 to 12 to the advantage of the BH army, without an experienced

11 military personnel to take over the defence of the enclave, there would

12 have been a collapse in the military sense, and in the chaos that would

13 have ensued, I'm quite convinced that there would have been far greater

14 violence towards the civilians on all sides and against all sides.

15 Perhaps the times and my concept of military duty, the duty of an

16 officer, played me a fool, but I am sure that I never dishonoured my

17 soldiers or the population of the enclave.

18 I am proud that although the Prosecution erroneously claimed for

19 seven years, alleged for seven years, that I ordered killings and the

20 other sufferings of the Muslim civilians, not a single witness of the 164

21 testimonies that we heard here in this courtroom ever said that I had any

22 prejudice or animosity or bias against the Bosniak Muslims, nor did a

23 single individual state that they had ever heard or that they had seen me

24 issue orders along those lines.

25 I should like to be able to explain to you how painful it all was,

Page 844

1 how difficult it all was. It was difficult for my family and myself when

2 I was convicted of crimes which I did not order, nor did I commit. Above

3 all, I wish to express my regret for all the casualties of the crimes and

4 all those who were killed during the war in Central Bosnia, and I would

5 like to express my condolences to the victims' families. I should like to

6 say that it would be a wonderful thing had there never been a conflict

7 between the Bosniaks and Croats and that the civil war which cost us so

8 many lives had never, ever been waged to begin with. However, my

9 conscience is clear, because I know from my heart that I wholeheartedly

10 did everything to prevent crimes and to conduct an investigation into the

11 crimes as soon as I learnt of them.

12 I should like especially to thank all the witnesses who came

13 forward to testify and thus helped this Honourable Tribunal to establish

14 the truth. I am convinced that everybody's good intents and evil intents

15 and actions will ultimately be made known.

16 Nothing more remains for me, Your Honours, than to hope that you

17 will carefully consider all the evidence placed before you, that you will

18 look at my role objectively in all the events that came to pass, as well

19 as the actual command responsibility that I had, how much I was able to

20 command at all, and that you will make the right decision, the right

21 judgement, based on evidence and proof, and that will be a true

22 contribution to a sure and certain future to the population in

23 Central Bosnia, and I hope that people will extend hands of friendship to

24 each other for total reconciliation and trust and confidence.

25 The Prosecution, on one occasion, said, in this courtroom, that

Page 845

1 the dead deserve the truth, and that is very true. The dead do deserve

2 the truth. But the living also deserve the truth and deserve justice. I

3 am deeply convinced that your decisions and judgement will do both: They

4 will assure the truth and justice.

5 Your Honours, I should like to thank you for your patience and

6 understanding during the presentation of evidence and for the time you

7 have accorded me to say these final words. Thank you.

8 JUDGE POCAR: I thank you, General Blaskic. You may sit down.

9 Now our hearing in this appeal comes to an end. I want to thank

10 everybody again. We will now rise. The judgement will be rendered in due

11 course. The hearing stands adjourned.

12 --- Whereupon the hearing adjourned at 1.38 p.m.