Tribunal Criminal Tribunal for the Former Yugoslavia

Page 129

1 Friday, 8 December 2006

2 [Appeal Proceedings]

3 [The appellant entered court]

4 [Open session]

5 --- Upon commencing at 9.01 a.m.

6 JUDGE MERON: Good morning, please be seated.

7 We will now start our second day of proceedings in the case of Mr.

8 Brdjanin, and the next item on our agenda is submissions by the Defence,

9 and Mr. Ackerman will have an hour and 15 for that and knowing him he

10 probably will not even need that.

11 MR. ACKERMAN: Good morning, Your Honour, Your Honours.

12 Well, Judge Meron, I hope I don't disappoint that expectation on

13 your part. I'll try not to but I do have a few things I want to say to

14 you today.

15 I want to start, Judge Meron, with maybe giving a further answer

16 to your question of yesterday and I hope it's not such a convoluted answer

17 that it defies understanding. I'll try.

18 To understand that question, or to try to answer that question, I

19 think it helps to know exactly what it was that the OTP agreed to at

20 trial. The Chamber asked the OTP, " order to establish responsibility

21 under the first category of JCE, is it necessary to show that the physical

22 perpetrators of the crimes for which the accused is held responsible

23 entered into agreement with the accused?" The OTP responded, "Yes," and

24 then went on to say, "it's necessary to show that there was an

25 understanding or arrangement amounting to an agreement between two or more

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1 persons that they will commit a crime." Clearly the answer to the

2 question was yes. The question was submitted in writing and the OTP had

3 time to consider it, several days, as I recall, and it would surprise me

4 if the appellate section of the Prosecutor's Office was not consulted

5 regarding the answer to that question. That's the normal course of events

6 in that office that I know about.

7 However, that's not relevant, whether OTP considered it or not.

8 Yesterday, I quoted to you from the decision of Trial Chamber II pre-trial

9 where it was held that it's necessary for the Prosecution to prove that

10 between the person who personally perpetrated the further crime charged

11 and the person charged with that crime there was an agreement to commit at

12 least a particular crime. As the Prosecutor told you yesterday the case

13 was tried upon the understanding that this was the law of the case. To

14 come now to this stage of the process and argue that an agreement between

15 the RPP and the accused is not really necessary and that Brdjanin should

16 now be convicted under a JCE theory seems to be decidedly unfair.

17 The case was tried under an allegation and understanding that he

18 entered into agreements with perpetrators of underlying offences. It was

19 that proposition that the Prosecutor undertook to prove and was required

20 to prove by the law of the case. Examination and cross-examinations

21 during the trial were conducted on that basis. To say now that that basis

22 was wrong and that Brdjanin can therefore be convicted for JCE on a --

23 less than that amount of proof deprives Brdjanin of a right to present his

24 Defence at a trial. It raised a notice problem. The right to notice of

25 what he is charged with. Understand that the TC 2 order was entered in

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1 the context of an attack on the indictment, so guidance was being given as

2 to the notice required by the indictment which was ordered amended by the

3 Trial Chamber. It was the law of the case. And whether it was the

4 correct law or not is another matter entirely.

5 It seems to me that it's like amending the indictment at the

6 appeals stage with no right to a trial so that if rejection of ground 2 of

7 the Prosecutor's brief is not the appropriate remedy, then perhaps a new

8 trial is and I know a new trial is a frightening prospect for this Chamber

9 and in this Tribunal at this time.

10 I hope that has expanded my answer in some meaningful way, Your

11 Honour.

12 I'm now going to talk about a little bit about some things that

13 Ms. Brady said yesterday. At page 79, line 23, Ms. Brady told you in

14 these words, that "Brdjanin was the major implementer of the criminal

15 events in the Krajina." She also told you that in one of her statements

16 in the brief they had gone a little over the top and that statement went

17 way over the top. It took my breath away. How do a senior appeals

18 attorney with the breadth of experience of Ms. Brady possibly say such a

19 thing to this Chamber? I can only conclude she has not looked at the

20 evidence in this case but only at the conclusions drawn by the Trial

21 Chamber because there is no way that the evidence in this case can support

22 such a broad and sweeping statement.

23 We all have to agree that the findings of the Trial Chamber are

24 not evidence. It's what is behind those findings, the testimony and the

25 exhibits, behind those findings, that is the evidence in this case. I

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1 challenge Ms. Brady and I challenge this esteemed appellate Chamber to

2 find in the underlying evidence in this case any evidence that would

3 permit such a sweeping conclusion.

4 I want to be frank with Your Honours. This is -- you know I

5 started practising law before you all were born, as was pointed out

6 yesterday. This is the most difficult appeals case that I've ever handled

7 and that problem is underscored yesterday as heard the Prosecutor refer

8 over and over to the facts of the case based on the findings of the Trial

9 Chamber. The Prosecutor was treating the findings of the Trial Chamber as

10 if those were the facts of the case. Ordinarily that would not present a

11 problem and would be a perfectly acceptable way to argue a case. However,

12 in this case, it's of little or no value. In this case, as you know, the

13 Appellant Brdjanin has raised probably an unprecedented number of issues

14 relating to the factual findings of the Trial Chamber and has alleged that

15 the evidence will not support those findings. These are not hollow

16 allegations as you'll see. They are real.

17 So I urge this Chamber, do not accept any factual finding of the

18 Trial Chamber in this case at face value. The evidence in this case, the

19 facts in this case, come from the evidence, not from the Trial Chamber.

20 At any time you're tempted to draw a conclusion based upon a Trial Chamber

21 finding, look behind it for evidentiary support. It's likely there will

22 be none or so little that there are a number of reasonable conclusions

23 that could be drawn and only one of which is consistent with the guilt of

24 the accused.

25 First I suggest that Your Honours will accept a very basic

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1 proposition, and that is that the Prosecution does not prove any part of a

2 case by a showing that its allegations might have, must have, could have,

3 or possibly were true. The requirement of proof beyond a reasonable doubt

4 requires a much higher level of proof. It must exclude all reasonable

5 inferences to the contrary. The might have, must have, could have problem

6 seriously affects the judgement in this case.

7 I want to talk about three conclusions, just as an example and

8 within the time allotted that the Trial Chamber made and I want to talk

9 about them just because they are exemplary of the nature of there

10 judgement. I've set out in the brief the concerns regarding factual

11 deficiencies in the case and I won't even try to go through all of those

12 or even many of them.

13 It's important to bear in mind that to the extent there was

14 evidence supporting in any way a Trial Chamber finding, it's frequently a

15 chain of circumstantial events which the Chamber finds leads to only one

16 conclusion. So if one or more of the links in that chain of events is

17 flawed or non-existent, then the chain may break and the holding may not

18 stand. So if there are three chains, three links in the chain, to support

19 a Trial Chamber conclusion but one of them is totally false, then maybe

20 the circumstantial evidence does not rise to the level of proof beyond a

21 reasonable doubt.

22 First the Chamber found that force and fear had to be involved in

23 the realisation of the strategic plan, and if you do a search of the Trial

24 Chamber judgement, you will find those words force and fear repeated over

25 and over and over. They were key in many ways to the conclusions finally

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1 drawn by the Trial Chamber. In paragraph 67 of the judgement, the Chamber

2 concluded this: During the first session of the Serbian Republic of

3 Bosnia-Herzegovina Assembly held on 24 October 1991, Radovan Karadzic made

4 it clear that the Bosnian Serbs were prepared to use force and fear to

5 achieve their ends if they were otherwise unsuccessful. Now that's a

6 compelling piece of evidence. In the footnote the Chamber says, Karadzic

7 said this: War will start here only if someone attempts to force the

8 Serbs to do something they do not want to do. That's the language from

9 which that conclusion was drawn. But there is a problem. If you look at

10 Exhibit P21, that the Chamber referred to, that quote does not appear.

11 It's not there.

12 We can say, well, gosh, that was an unfortunate error. It happens

13 all the time. These kinds of errors. They are unfortunate but they

14 happen. And it doesn't affect the judgement. And I say to you, well,

15 maybe if it was an isolated instance and not a decisive link in the chain,

16 yes, an unfortunate error. However, it's only one of many. With regard

17 to the authority of the ARK Crisis Staff, with regard to the army, the

18 Chamber concluded that Brdjanin had influence over the army, as Ms. Brady

19 told you yesterday. At paragraph 224 of the judgement, the Chamber was

20 citing the interaction between the ARK Crisis Staff and the military as

21 justification for this conclusion that Brdjanin had influence over the

22 army. In footnote 606 the Chamber referred to a visit to Manjaca camp by

23 Tadeuz Mazowietski, which was assisted by the ARK Crisis Staff and upon

24 which he was accompanied by members of the ARK. The Chamber thus relies

25 on three stated facts: One, Mazowietski visited Manjaca; two, the ARK

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1 Crisis Staff assisted in organising the visit; and three, he was

2 accompanied by members of the ARK. The Chamber refers to Exhibit P1777.

3 Unfortunately, if you look at Exhibit P1777 it makes it clear:

4 One, Mazowietski did not visit Manjaca; two, the ARK Crisis Staff did not

5 assist in organising the visit, since there had never been a visit and

6 since the ARK Crisis Staff had been out of existence for nearly a month;

7 and, three, he was accompanied by members of ARK. Thus every conclusion

8 drawn by the Chamber from this exhibit is wrong. Completely, totally

9 wrong. And the Chamber should have or must have known it was wrong

10 because there was an exchange about that issue between the witness Brown,

11 Ewan Brown, expert from the Prosecution, and Judge Agius during the

12 trial. And you can read that exchange at page 21553 through 21558 of the

13 transcript where Judge Agius is expressing his concern that Ewan Brown

14 wrote this in his report that Mazowietski had visited Manjaca when the

15 exhibit clearly showed that he hadn't. So Judge Agius knew, right there

16 in open court, that that exhibit did not support that statement, and yet

17 it winds up in the judgement of the Trial Chamber for reasons that I don't

18 think any of us will ever understand.

19 In its reply to the appellant's brief where this was raised the

20 Prosecution agreed that Mazowietski did not visit Manjaca but then said at

21 paragraph 224 that the TC judgement did not claim or imply that he went to

22 Manjaca. And I guess if all you look at is the language above the foot

23 notes, that would be true. But in footnote 606, clearly the claim is made

24 that he hadn't.

25 The result then was reliance by the Trial Chamber for their

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1 conclusion on, again, on non-existent evidence and you can say well that

2 was just an error, it happens all the time but doesn't affect the

3 judgement, and maybe so, if it was isolated and not a decisive link in the

4 chain.

5 The third one I want to talk about is one that has almost become a

6 cause celebre regarding this appeal and it's come to your attention more

7 than once, Your Honour. In paragraph 200 of the judgement the Trial

8 Chamber concluded that the ARK Crisis Staff exercised de facto authority

9 over the municipalities and coordinated their work. The Chamber then went

10 on to say this, and this is where the link is really important: "Although

11 no single document from the SDS, SE RBiH leadership or the SE RBiH

12 authorities addressed the normative relationship between the ARK Crisis

13 Staff and the municipal authority," so they are saying there is no such

14 document, "one document issued by the SDS Main Board's Executive Committee

15 specifically refers to the role of the ARK Crisis Staff as set out above."

16 And in this instance, the Chamber's referring to Exhibit P116 and I'd like

17 to have it put on the ELMO so you can look at it.

18 And right at the bottom -- at the top you'll see it comes from the

19 Executive Board of the SDS dated 24 February 1992. Now, this is almost

20 three months before the -- two months before the Crisis Staff -- three

21 months before the Crisis Staff existed. It appoints Mr. Radoslav Vukic as

22 a coordinator for the SAO Serbian Autonomous District Krajina and says

23 that he is to take part in the work of the SAO Krajina Crisis Staff. Now,

24 understand this is over two months before there was an ARK Crisis Staff.

25 Paragraph 10 of the indictment says the ARK Crisis Staff was

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1 formed on 5 May 1992 and if you look now at Exhibit 227 -- I'm sorry,

2 Mr. Usher I guess you're going to have to go back and get another

3 exhibit -- Exhibit 227, you will see that the ARK Crisis Staff was created

4 by a decision on the 5th of May of 1992 where Mr. Brdjanin was appointed

5 its president. In paragraph 6.26 of its response brief, the Prosecution

6 tells you that the Brdjanin contentions that this document does not refer

7 to the ARK Crisis Staff but to a Crisis Staff in Croatia are incorrect and

8 misleading. And I tell you that's simply not so. For the Trial Chamber

9 to conclude that this document that we looked at about the Vukic

10 appointment referred to the ARK Crisis Staff and for the OTP to tell you

11 Brdjanin's contentions are incorrect and misleading, the OTP had to ignore

12 the Trial Chamber had to ignore and Your Honours, you will have to ignore,

13 the testimony of Prosecution witness Islamcevic who said SAO Krajina is in

14 Croatia. The testimony of another Prosecution witness, whose name I can't

15 say, it's in confidential annex A 2 of my response to the Prosecution's

16 reply -- reply to the Prosecution's response, who said SAO Krajina is in

17 Croatia; the testimony of Prosecution Witness Mevludin Sejmenovic, who

18 said SAO Krajina is in Croatia; the testimony of Prosecution Witness Osman

19 Selak, a Muslim general, former JNA, who said SAO Krajina was in Croatia;

20 the testimony of Prosecution Witness Jasmin Osobasic, who said SAO Krajina

21 is in Croatia; the testimony of Prosecution Witness Rusmir Mujanic, who

22 said the same; the testimony of Prosecution Witness Jovica Radojko, who

23 said the same; the testimony of in-house Prosecution expert Ewan Brown,

24 who said the same; Prosecution exhibit 1826, which says the same; and P 92

25 and 2382.12, Exhibit P21, page 03015402, Exhibit P13, and Exhibit P2417.

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1 In other words, overwhelming evidence that SAO Krajina has nothing to do

2 with the ARK Crisis Staff, that it's in Croatia.

3 It was that part of Croatia that was taken over early in the war

4 by Serb forces, and declared a region, a Serb Autonomous Region of

5 Croatia. It's the Krajina area of Croatia just across the border from the

6 Krajina area of Bosnia, and the Serb leadership in Bosnia was very

7 interested in that area because the idea was to incorporate it into the

8 proposed Republika Srpska and make it part of all Serbs in one state kind

9 of idea.

10 In the brief we spoke of a need for a Chamber to -- I'm finished

11 with those, Mr. Usher, thank you. We spoke of the need for a Chamber to

12 write a reasoned opinion. A reasoned opinion would explain, if possible,

13 why all this testimony and all these exhibits regarding this SAO Krajina

14 were ignored and found not to be credible but there is no such reasoned

15 opinion. It was simply ignored.

16 These three examples are simply the tip of the iceberg of a very

17 seriously flawed judgement. In the appellant's brief and appellant's

18 reply to the Prosecution response, the appellant sets out many of the

19 conclusions reached by the Trial Chamber which are similarly without

20 support. Those conclusions taken as a whole affect this judgement and

21 demand that it be set aside in its entirety and that Mr. Brdjanin be

22 released.

23 I'd like to go now to some questions from the scheduling order.

24 Your Honour mentioned yesterday that I had dismissed my motion regarding

25 the corrigendum to the judgement so I won't deal with that, and

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1 Your Honour you also mentioned yesterday that you had received a copy of

2 an e-mail that I had sent to the Prosecution regarding the table of errors

3 that I had enhanced a bit, and unless you think it's important for me to

4 read that into the record I will skip that and go on.

5 JUDGE MERON: We have it.

6 MR. ACKERMAN: Okay, so you're satisfied that that does not need

7 to be talked about or read into the record. That will take me then to the

8 question regarding some evidence relating to a group called the SOS. The

9 Chamber refers to paragraph 48 of the appellant's reply brief where it's

10 referred that there was significant evidence that the SOS did not exist at

11 any time the ARK Crisis Staff was in existence. Now, first of all you've

12 seen the document and you're now familiar with paragraph 10 of the

13 indictment, which indicates the ARK Crisis Staff came into existence on 5

14 May 1992. It lasted until 17 July 1992, and the Trial Chamber made that

15 finding in paragraph 321 of its judgement where it said that the end of

16 the Crisis Staff was 17 July 1992. And you won't find in any of the

17 evidence any activity by the Crisis Staff after that date, no decisions,

18 no activity, nothing of any kind.

19 In paragraph 114 of the judgement, the Trial Chamber found that

20 the SOS arrived in Banja Luka on 3 April 1992, set up barricades and made

21 certain demands. There is some confusion with regard to what happened

22 then. The SDS -- the SOS demanded that a Crisis Staff be created in Banja

23 Luka to deal with their demands, and that happened. A local Banja Luka

24 Crisis Staff was created headed by the then-mayor of Banja Luka, Predrag

25 Radic. That Crisis Staff was a very short duration. It existed long

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1 enough to deal with the demands of SOS. Those demands were largely met,

2 although not to the extent contended but after these demands were met,

3 there is very little indication in the record of this case of any further

4 activity on the part of the SOS. There is a report from the 1st Krajina

5 Corps in late July, that's after the ARK Crisis Staff ceased to exist

6 involving an SOS threat to the chief of the security service centre in

7 Banja Luka that they would attack the city prison and free a number of its

8 members who had been arrested and imprisoned for crimes they had

9 committed. That's Exhibit P395. It tells you more than one thing. It

10 tells you that there were efforts made by the authorities to crack down on

11 the SOS and that a lot of their members had been arrested and charged with

12 crimes and convicted and imprisoned.

13 One exhibit speaks of what happened to the SOS. It's not all that

14 helpful but somewhat helpful. The 1st Krajina Corps reported that the SOS

15 was brought to an end in P2514, and that probably was part of the campaign

16 of the military to bring any paramilitary group either into the military

17 or to dissolve and disarm them. There is no evidence that the SOS engaged

18 in any activity that formed a part of the crime base in this indictment.

19 It's not mentioned by name in the indictment in this case.

20 Another confusion: There was another unit over in Sanski Most

21 that operated in that municipality that called itself at times the SOS and

22 at times the Intervention Platoon. But it was not the same group as the

23 SOS that figures into this case and that invaded Banja Luka on 3 April

24 1992.

25 If the Banja Luka SOS unit was in existence during the tenure of

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1 the ARK Crisis Staff, there is no evidence that it did anything during

2 that time.

3 When in paragraph 227 the Trial Chamber concludes that the ARK

4 Crisis Staff used the SOS as an operational tool, that contributed to the

5 implementation of the strategic plan, the indication is that that

6 reference was to the demands of the SOS that were made in early April of

7 1992 before there was any ARK Crisis Staff. For this conclusion that the

8 ARK Crisis Staff used the SOS to implement its demands, the Chamber cites

9 an exhibit, P154, which is a newspaper article from the Glas newspaper in

10 Banja Luka where on 21 April 1992, several days before the creation of the

11 ARK Crisis Staff, Brdjanin is quoted as saying, "If individual people in

12 the Banja Luka companies who have been asked to withdraw do not do so in a

13 period of three days, then members of the SOS will come on to the scene."

14 Now this is 21 April 1992. That's 15 days, I think, before the creation

15 of the ARK Crisis Staff. So this certainly doesn't show that the ARK

16 Crisis Staff was using the SOS as an operational tool. More importantly

17 it indicates just by its language that SOS was no longer on the scene and

18 would only return if its demands regarding these companies were not

19 implemented. And as you know, and as has been set out very clearly in the

20 judgement, in the evidence, and briefs, I think, those demands were

21 implemented. So there was no reason for the SOS to return.

22 You've asked me, Your Honours, to talk about the relationship

23 between the Prijedor Crisis Staff and the ARK Crisis Staff and that's a

24 very, very important question because to a great extent a lot of this case

25 turns on that relationship and what it was and what its nature was. I

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1 want you to look -- the analysis that I want to give you, I want you to

2 look, to start with, with Exhibit P229 which I'll ask to be put on the

3 ELMO. And I start basically where the Trial Chamber started in many ways.

4 I need to explain to you what this document P229 is. This is a -- some

5 conclusions adopted at a meeting that was held on the 7th of June 1992.

6 This is about a month after the ARK Crisis Staff was created. And it was

7 a subregional meeting of municipalities that were part of the Autonomous

8 Region of Krajina, and it says -- you can see in the first paragraph,

9 those municipalities were Bihac, Bosanski Petrovac, Srpska Krupa, Sanski

10 Most, notably Prijedor, Bosanski Novi, and Kljuc. This -- these

11 conclusions were sent to the Crisis Staff of the autonomous region in

12 Banja Luka, the leadership of the Republic of Bosnia-Herzegovina in

13 Sarajevo, and the 1st Krajina Corps. In paragraph 4, you'll see this

14 language: "We demand that the 1st Krajina Corps in Banja Luka and

15 particularly General Momir Talic of the 1st Krajina Corps purge the 1st

16 Krajina Corps of Muslims and Croats."

17 Paragraph 5: "We absolutely demand that within the next three

18 days the leadership of the Autonomous Region of Krajina," that's

19 Mr. Brdjanin, who was president of the Crisis Staff at that point, or

20 theoretically that's who it was, "clearly define the borders of the

21 Autonomous Region of Krajina."

22 Paragraph 6: "All seven municipalities in our subregion agree

23 that Muslims and Croats should move out of our municipalities until a

24 level is reached where Serbian authority can be maintained and implemented

25 on its own territory in each of these municipalities. In this respect we

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1 request that the Crisis Staff of the Autonomous Region of Krajina provide

2 a corridor for the resettlement of Muslims and Croats to Central Bosnia

3 and Alija's independent state of Bosnia-Herzegovina because they voted for

4 it. If the leadership of the Autonomous Region of Krajina in Banja Luka

5 fails to solve this issue, our seven municipalities will take all Muslims

6 and Croats under military escorts from our municipalities to the centre of

7 Banja Luka." And then finally in paragraph 7 they demand that Dr. Nikola

8 Erceg "form a government of the Autonomous Region of Krajina which will

9 take care of the economy and economic resources and potential of

10 municipalities."

11 So this, on 7th June, is saying the ARK Crisis Staff is not doing

12 the job we want it to do. It's not getting the Muslims and Croats out of

13 here, it's not doing what we want it to do. We demand that it do that or

14 we will take further action. And it says that Dr. Nikola Erceg should

15 take over from Mr. Brdjanin.

16 Now, what happened next, then? A week later, look at P247.

17 Apparently nothing had happened in response to that threat so they met

18 again. This is on the 14th of June 1992. They met at Korcanica. The

19 people present were representatives from Srpska Krupa, Bosanski Petrovac,

20 Bosanski Novi, Bosanska Dubica, notably which side? Prijedor and Sanski

21 Most. If you look at the bottom under 3 A of the first page: "We think

22 that the work of the Crisis Staff of the Autonomous Region of Krajina

23 under wartime circumstances should be much more serious and that its

24 politicians and experts should pay more attention to the problems in all

25 constituent municipalities of the Autonomous Region of Krajina." If we go

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1 to the second page, paragraph B: "Accordingly, we propose that Vujo

2 Kupresanin be appointed president of the Crisis Staff of the Autonomous

3 Region of Krajina given the position he currently occupies as president of

4 the assembly." They then talk about other things that should be done with

5 regard to the Crisis Staff. You go down to E, they say, "We think that

6 the work of the Crisis Staff has been unsatisfactory and that it's been

7 serving the local interests of Banja Luka. We are of the opinion that the

8 Crisis Staff should be composed of the Municipal Assemblies and

9 representative of the Serbian Democratic Party from all the constituent

10 municipalities of the Autonomous Region of Krajina." So they are not

11 happy, and you know what they are trying to do. They are trying to move

12 all the Muslims and Croats out of the Autonomous Region of Krajina and

13 they don't like the way the Crisis Staff of the autonomous region is

14 pursuing what they think is the right thing to do. So if you look at that

15 paragraph B at the top and then go down to underneath the line, under

16 paragraph F, the second paragraph under F, "Accordingly, personnel changes

17 should be made in the Crisis Staff of the Autonomous Region of Krajina and

18 with a view to urgently breaking, to urgently breaking with individuals

19 who have decided to obstruct the work of the Serbian Democratic Party in

20 the Autonomous Region of Krajina and to question the lofty goals which

21 have galvanised the Serbian people."

22 Now, I suggest to you what they are saying there is Mr. Brdjanin

23 had decided to obstruct the work of the SDS and had decided to question

24 the lofty goals which had galvanised the Serbian people. Those lofty

25 goals being this strategic plan that you see talked about over and over.

Page 145

1 What other evidence is there of a break? You've now seen these

2 two documents. You've listened to me talk about them. The Trial Chamber

3 interpreted these documents, Your Honours, and this just should baffle any

4 reasonably intelligent human being, the Trial Chamber interpreted these

5 two documents as expressing a willingness by the municipalities involved

6 to implement the decisions of the ARK Crisis Staff. Now, how you could

7 get that conclusion from the language of those two documents is just

8 baffling.

9 All right. So now we have got the June 7th complaint, the June

10 14th follow-up, and then the next thing that happens is nine days later,

11 on the 23rd of June, P1261. Apparently those two pronouncements by this

12 subregional group were ignored by Mr. Brdjanin and the ARK Crisis Staff so

13 finally the Prijedor Crisis Staff decides it will take unilateral action,

14 and so on the 23rd of June, the Prijedor Crisis Staff says, "the Crisis

15 Staff of Prijedor municipality does not accept and considers invalid all

16 decisions by the Crisis Staff of the Autonomous Region of Krajina adopted

17 before 22 June 1992." Now, Your Honours should know that anything

18 regarding disarmament coming out of the ARK Crisis Staff happened before

19 22 June 1992, so this rejection included all of those vaunted disarmament

20 decisions. The break is now complete.

21 The June 22 conclusion --

22 JUDGE MERON: Mr. Ackerman, they have not implemented de facto the

23 decisions by the Crisis Staff?

24 MR. ACKERMAN: No, Your Honour. And I'll talk about that more as

25 we go on. And I want to talk to you about the conclusions drawn by Gerald

Page 146

1 Treanor who works for the OTP and was an expert in the case and will I

2 think answer your question and if you give me time to get there I'll do it

3 or if you would like me to do it now I will. Okay. Thank you.

4 This 22 June conclusion says that they would start implementing

5 enactments of the ARK Crisis Staff after the 22nd of June. So that's like

6 there must have been some kind of a settlement reached between them which

7 lasted for exactly three days. On the 25th of June, the Prijedor Crisis

8 Staff again announced that it would not implement enactments of ARK until

9 ARK did some certain things. It's important to understand that the ARK

10 assembly had ceased to function and that's why there was a Crisis Staff.

11 The purpose of the Crisis Staff was to substitute for the assembly in time

12 of crisis so this complaint was a complaint to the ARK Crisis Staff again

13 and again they announced that they would not implement their own

14 enactments and there were no decisions of the ARK Crisis Staff between the

15 22nd and the 25th of June.

16 The Trial Chamber, regarding its views that Prijedor municipality

17 was responding to decisions of the ARK Crisis Staff relies on Exhibit

18 P2351, and this is part of the report of Gerald Treanor and relies on two

19 paragraphs of that report. Relies on paragraph 59 and in paragraph 59

20 witness Treanor refers in the first part of that to what he calls the 26

21 April instructions, and since we are there, I'd like you to very quickly

22 take a look at P157 and explain to you what that is and how it figures

23 into -- I didn't give that to you, did I? Well, unfortunately, Your

24 Honour, I don't have an extra copy to put on the ELMO, I don't think.

25 P157 is a document dated 26 April 1992, and it was issued by the

Page 147

1 president of the government of the Serbian Republic of Bosnia and

2 Herzegovina and it's called, Excerpt from the Instructions for the

3 Functioning of Crisis Staffs of the Serbian People in Municipalities.

4 Now, this is before the ARK Crisis Staff exists, and it has to do with the

5 functioning of municipal Crisis Staffs. What I think is important about

6 this document is paragraph 4, which points out: "Command of the

7 Territorial Defence and the police force falls within the exclusive domain

8 of professionals and it's therefore necessary to prevents any kind of

9 interference into the matters of Territorial Defence or the deployment of

10 police forces."

11 In other words, Crisis Staffs have nothing to do with those

12 organisations.

13 Now, if we go back to Mr. Treanor's paragraphs 59 and 62, the only

14 thing in paragraph 59 that talks about the ARK Crisis Staff is the very

15 last paragraph which says, "The ARK Crisis Staff also explicitly claimed

16 that municipal Crisis Staffs were now the highest organs of authority in

17 the municipalities." Now, all that is, is the ARK Crisis Staff saying

18 municipal Crisis Staffs are the highest organs of authority in the

19 municipality. It has nothing to do with the relationship between the ARK

20 Crisis Staff and the Prijedor Crisis Staff. If you look at paragraph 62,

21 it again provides no support for the Trial Chamber's conclusion. It says,

22 "Aside from their roles as emergency legislative but also executive

23 bodies, Crisis Staffs also served as coordinating bodies for the

24 activities of police, military and civilian governmental organs in the

25 municipality as well as for coordination and communication with regional

Page 148

1 and republic level bodies. According to both the 19 December instructions

2 and 26 April instructions, the composition of the Crisis Staffs was to be

3 such as to allow for this coordination and communication while the 26

4 April instructions mandated that it actually take place. Evidence of the

5 actual communication with the ARK Crisis Staff and implementation of its

6 directives will be discussed in subsequent sections of this report." So

7 this says nothing to support a relationship between the ARK Crisis Staff

8 and the Prijedor Crisis Staff that was the conclusion of the Trial

9 Chamber.

10 This is yet another example of the Trial Chamber's citing as

11 evidence authority that's totally unrelated to the conclusion that it was

12 set out to support.

13 Any finding of the Trial Chamber which imputed liability to

14 Brdjanin based upon some concept that the ARK Crisis Staff controlled the

15 functioning of the Prijedor municipality is simply inconsistent with these

16 documents. The analysis by the Trial Chamber is fatally flawed. It is

17 one that no reasonable Trial Chamber could have reached.

18 I want to talk -- and Your Honour, I really will come to more

19 about the Treanor report. I want to talk about aiding and abetting very

20 briefly. Brdjanin was convicted of aiding and abetting persecutions and

21 torture in counts 3 and 6; aiding and abetting deportation and inhumane

22 acts, counts 8 and 9; aiding and abetting wilful killing in count 5;

23 aiding and abetting torture in counts 7; aiding and abetting wanton

24 destruction of cities, towns or villages in count 11; and aiding and

25 abetting destruction or wilful damage to institutions dedicated to

Page 149

1 religion. Assigned error number 153 contends that the Trial Chamber erred

2 by misapplying the law of aiding and abetting, which requires proof beyond

3 a reasonable doubt that the actions of the accused had a substantial

4 effect on the commission of the offence.

5 Beginning in paragraph 271, the Chamber accurately states the law

6 of aiding and abetting in this Tribunal but then failed to apply it

7 properly to the facts of the case.

8 Just in passing, one thing that I find somewhat curious and that

9 is a proposition that has been taken by this Chamber and that was

10 underscored over and over -- I shouldn't say over and over; at least once

11 or twice by the Prosecution yesterday. And that is somehow aiding and

12 abetting is seen as a lesser offence than participation in a joint

13 criminal enterprise, which in circumstances -- there are circumstances in

14 which I find that somewhat baffling because to convict someone of an

15 aiding and abetting you have to prove that they had a substantial effect

16 on the crime that was being committed but to prove someone guilty of a

17 joint criminal enterprise, you don't have to prove that they had a

18 substantial effect. So someone could have been heavily involved in the

19 commission of a series of murders to the point where they had a

20 substantial effect on those murders and be convicted of aiding and

21 abetting, which you would say is a lesser crime to someone who was just

22 nominally involved but a member of the JCE, and that tends to not make

23 sense to me.

24 The other thing that I think flies in the face of that whole

25 concept is this Tribunal is able to basically sentence an individual for

Page 150

1 what they believe is the impact of their activity, and whether that is

2 under a rubric of aiding and abetting or under a rubric of JCE seems to me

3 to make very little difference. So that the impact of the behaviour, the

4 actions, of an accused here can be dealt with at sentencing regardless of

5 which of those offences he might have been found guilty of.

6 The law of aiding and abetting and its application was just very,

7 very recently visited by this Appeals Chamber in the Simic appeals case.

8 And this Chamber is well aware, I believe of the factual background of the

9 Simic case and what it was that caused it to arrive at its conclusions

10 there. I suggest the important parts of that decision with regard to this

11 case can be found in paragraphs 103 and 130. In paragraph 130,

12 specifically, it was said -- this is what was said. "Much the Appeals

13 Chamber emphasises that the Trial Chamber's findings do not allow for a

14 clear inference as to how the appellant's conduct was construed by the

15 principal perpetrators committing the beatings or as to what effect his

16 conduct may have had on their acts." "As to how the appellant's conduct

17 was construed by the principal perpetrators," which seems to say that his

18 conduct must be known to the principal perpetrators. They couldn't

19 construe his conduct if they didn't know what his conduct was and the

20 problem in this case is there was never any showing that any perpetrator

21 ever knew anything about Mr. Brdjanin or what he was doing or anything

22 about him. No showing that they had ever heard of him even. None. Not

23 one perpetrator came into this courtroom and said, "Yeah, I know

24 Mr. Brdjanin. I heard about him all through the war. He was a big

25 leader. I followed his lead." Nothing like that. It's not in the

Page 151

1 evidence in this case. It's not there.

2 Chamber also said in 130, the Appeals Chamber further notes in

3 this regard that, "it was not established that the appellant ever visited

4 any of the detention centres and recalls 245 it was accepted that the

5 principal perpetrators of beatings, members of paramilitary forces from

6 Serbia, local policemen, and a few members of the JNA, were not under his

7 authority."

8 Of course you know that the Trial Chamber's finding in this case

9 was that the relevant physical perpetrators were not under his authority.

10 It goes on, "for the same reasons the Appeals Chamber considers that the

11 Trial Chamber's findings would not allow a reasonable trier of fact to

12 reach any conclusion beyond a reasonable doubt concerning the effect of

13 the appellant's conduct upon the different acts of torture perpetrated in

14 the detention facilities in Bosanski Samac." I suggest to you that the

15 same conclusion must follow here. In paragraph 473, the Trial Chamber

16 said it was satisfied beyond a reasonable doubt that the only reasonable

17 inference that may be drawn is that when the ARK Crisis Staff decisions on

18 disarmament were issued the accused was aware that the Bosnian Serb forces

19 were to attack non-Serb towns, villages, and neighbourhoods, and that

20 through the ARK Crisis Staff decisions on disarmament he rendered

21 practical assistance and substantial contribution to the Bosnian Serb

22 forces carrying out these attacks.

23 To paraphrase the Simic finding, the Trial Chamber's findings do

24 not allow for a clear inference as to how the appellant's conduct was

25 construed by the principal perpetrators committing these killings or as to

Page 152

1 what effect his conduct may have had on their acts.

2 To further paraphrase the Trial Chamber's findings would not allow

3 a reasonable trier of fact to reach any conclusion beyond a reasonable

4 doubt concerning the effect of the appellant's actions upon the killings.

5 No finding explained how it is that the killings were pursuant to

6 the disarmament decisions of the ARK Crisis Staff rather than those

7 previous to the existence of the ARK Crisis Staff which we talked about

8 yesterday. The disarmament decisions of early May by Sajic, which was

9 sent out by the CSB. No finding explained how it was that the accused was

10 aware that the disarmament decisions would cause an attack on non-Serb.

11 THE INTERPRETER: Kindly slow down for the interpreters, thank

12 you.

13 MR. ACKERMAN: Thank you.

14 The conflict with paragraph 549 is unexplainable and fatal to the

15 judgement. You remember we talked about 549 yesterday. It cannot be that

16 military operations undertaken with displacement of the population as

17 their aim but at the same time with disarmament as their aim. It just

18 cannot be reconciled. And they found in paragraph 549 that the aim of

19 these military attacks was displacement of population. So there is no

20 connection made by the Trial Chamber or made by the evidence between

21 disarmament decisions of any kind and these attacks but more specifically

22 the disarmament decisions of the ARK Crisis Staff. And it's important,

23 Your Honours, to look at those decisions. They don't say, go out and

24 attack villages and take guns away from non-Serbs. They talk about

25 enforcing the law, return weapons, weapons had been issued under

Page 153

1 Territorial Defence to people who were members of the Territorial Defence.

2 They were asking for those weapons to be returned. They weren't asking

3 for people to turn in private weapons. They were asking for people to

4 turn in illegally held weapons. They were asking for illegally held

5 weapons to be confiscated. The illegally held weapons would have, for

6 instance, be those that were in the hands of paramilitary groups that were

7 operating in the area. So each one of those decisions, if you look at it,

8 calls for enforcement of the law. And the Prosecution contends that that

9 was just a smoke screen to cover an effort to disarm the non-Serb

10 population.

11 Now, there is a baffling question here. If it was a smoke screen

12 and that was its sole purpose, to justify attacking villages, then you

13 must ask yourselves why it was there came a time when the ARK Crisis Staff

14 extended the deadline for the return of illegal weapons, after 11th of

15 May. Now, why on earth would they extend the deadline if the whole thing

16 was just a pretext and if it wasn't a serious effort to gather up

17 illegally held weapons and try to reduce to some extent the threats to the

18 lives of people that were going on in area at the time, especially from

19 these paramilitary groups.

20 With regard to torture, the Chamber made two findings. The

21 torture outside the camps flowed from disarmament decisions and that

22 within the camps flowed from the omission by Brdjanin, his laissez faire

23 attitude regarding those. With regard to forcible transfer and

24 deportations, the findings involved disarmament, his public statements and

25 the setting up of the agency. And the same argument I just made apply to

Page 154

1 those. The same or similar problems pervade all of the findings of aiding

2 and abetting. Never is there an evidentiary basis for a finding that his

3 contribution to the crimes, if any, if any, was substantial. You'll be

4 hard pressed to find any contribution by Mr. Brdjanin to these offences,

5 let alone a substantial one.

6 I want to talk for a moment about the statements of Mr. Brdjanin.

7 A great deal is made both in the judgement and in the Prosecution's

8 filings regarding various statements allegedly plead by Brdjanin. One of

9 these that the Prosecution puts great store in to show that Brdjanin was

10 aware that people were mistreated in camps and detention facilities is

11 when he supposedly said, "If Hitler, Stalin, and Churchill could have

12 working camps, so can we." Now there is no evidence of the context in

13 which this statement was made so we don't know the context. However, one

14 must, simply looking at it, wonder what were the camps of Churchill that

15 he could have had in mind where prisoners were being mistreated. It seems

16 to me the more reasonable conclusion from this statement, considering that

17 Churchill was mentioned, that he was referring to the World War II POW

18 camps where the Geneva Conventions were mostly respected, both in Germany

19 and of course in Great Britain. I don't know of any notorious death and

20 torture camps run by Churchill and the British.

21 The Chamber found that Brdjanin's public statements provided

22 substantial assistance to those committing crimes in the camps. However,

23 there was no evidence in the case that those committing crimes in the

24 camps were aware of Brdjanin or aware of his public statements. There was

25 no evidence that they read newspapers, listened to the radio or watched TV

Page 155

1 or could, and more importantly no evidence that they heard any of the

2 public statements of Brdjanin. It seems to me at a minimum there must be

3 some showing that those statements were heard by the people who, it is

4 argued, were reacting to them the way it says they were reacting to them.

5 You can't just say, I said A and therefore somebody miles away acted on

6 what I said. I try very hard, Your Honours to read the International

7 Herald Tribune every morning but I can't read it all. I miss large parts

8 of it because I'm so busy and you all are the same, I know. You can't

9 possibly read it all. I don't think you can. And for somebody to say

10 that because something appeared in the International Herald Tribune on

11 November 7th 2006 that you knew about it and acted upon it is pure folly.

12 It would require a showing that you did read it that day and that you did

13 see what that story said. You can't just assume that. You can't presume

14 guilt. And that's what this does. This presumes guilt.

15 I spoke yesterday about the testimony of Witness BT19 and the

16 Prosecution responded to that. I can't identify this witness to you

17 publicly but I really urge you to look at that evidence. This was a very

18 significant witness, a gentleman of very high credibility. The testimony

19 I spoke of yesterday can be found at page 20765 to 20766 of the

20 transcript, and it's crucial to an understanding of this business of the

21 statements of Brdjanin and propaganda.

22 It's been suggested that people were leaving Banja Luka because of

23 the public statements of Mr. Brdjanin. Some witnesses even said that. If

24 you look at paragraphs 85 and 86 of the response to the Prosecution's

25 brief on appeal, there is discussion about that and I'm not going to go

Page 156

1 into any detail repeating it but the evidence in the case was that the

2 vast majority of people did not leave Banja Luka until much later, way

3 after the ARK Crisis Staff had ceased to exist. And Predrag Radic, the

4 mayor of Banja Luka, spoke about that, spoke about when people left, and

5 then there is a document, it's document DB 379, which is an analysis of

6 people going in and out of Banja Luka during the time, and actually,

7 almost as many people, non-Serb people, came to Banja Luka during the time

8 of the Crisis Staff as left Banja Luka, because it was a -- it was a place

9 of refuge, it was a -- an island of peace, and the famous journalist Roy

10 Gutman of New York Newsday called Banja Luka a place that was free of the

11 terror that was going on in other places in the Krajina.

12 And if Mr. Brdjanin had any power at all, it would have been in

13 Banja Luka, where he was president of the ARK Crisis Staff.

14 The ARK Crisis Staff authority over municipalities, and

15 Your Honour, I finally get to your question, it seems to me the most

16 important bit of evidence regarding this issue is the implementation study

17 done by Gerald Treanor a permanent employee of the OTP an expert in the

18 case, and I suggest to you a very good and honest man. Treanor made a

19 very detailed and thorough study of all of the decisions of the ARK Crisis

20 Staff and the implementation of those decisions in each of the ARK

21 municipalities, and he analysed that data at two levels. He first looked

22 at municipality enactments that could have come from the ARK Crisis Staff

23 but acknowledged that those enactments also could have come from Republika

24 Srpska, the SDS, the MUP, the police, the services centres, the regional

25 service centres of the police or the army of Republika Srpska. So it

Page 157

1 could have come from the ARK Crisis Staff but also could have come from

2 any of those organisations and it was impossible for him to tell us which

3 but if you just assumed that all of those came from the ARK Crisis Staff,

4 then there was an implementation rate of ARK Crisis Staff decisions of

5 11.9 per cent. 11.9 per cent. In other words, almost 90 per cent were

6 ignored and not implemented.

7 If you go to the second basis of his analysis, that would permit a

8 conclusion beyond a reasonable doubt where he could directly link

9 municipality enactments to ARK Crisis Staff decisions, the implementation

10 rate drops to 3.6 per cent. 96 per cent not implemented. So to say, as

11 the Trial Chamber did, that the municipalities implemented the ARK Crisis

12 Staff decisions just defies logic, and it defies the findings, the

13 specific findings of the Prosecution's own expert. This evidence was

14 ignored by the Trial Chamber without any reasoned opinion as to why it was

15 not conclusive for the proposition that the municipalities did not

16 implement ARK Crisis Staff decisions.

17 It's difficult, Your Honours to explain the myriad defects in this

18 judgement. Time would not permit me to show you all of them. I've shown

19 you a few of them.

20 It's frustrating because it's like there are two different

21 accounts sitting side by side of the events that happened in the Krajina

22 during the time in question in this indictment. There is the Trial

23 Chamber's account of what happened, found in the conclusions in its

24 judgement, and then there is the evidence in the record, the testimony and

25 the exhibits. And they seem to be unrelated. If you look at the

Page 158

1 testimony, exhibits, you get one impression of what happened there; if you

2 look at the Trial Chamber judgement you get a totally different one.

3 This man, Radoslav Brdjanin, I think, is nothing more than a

4 patsy. As I stand here today I firmly believe that he was set up to take

5 the fall for powerful and wealthy figures in Banja Luka who were the real

6 power behind what happened in the Krajina. A lot of people made a lot of

7 money out of the war and as a result became very powerful in the Banja

8 Luka area. And they are not here. They didn't come here. They weren't

9 brought here. Mr. Brdjanin repeatedly, and in fact wound up getting

10 kicked out of the assembly, because he kept complaining about war

11 profiteers people profiting from this war. That didn't endear him to

12 those powerful people. The wrong man is here. The right ones are living

13 wealthy and prosperous lives in Republika Srpska as we sit here and debate

14 about the small Radoslav Brdjanin.

15 The ARK Crisis Staff was a virtual joke. People laughed at it.

16 It had no employees, it had no offices, it had no telephones, it had no

17 vehicles, it existed for a very short time between 5 May and 17 July. The

18 events of note from the criminal standpoint in the Krajina happened

19 before, during and significantly after the existence of the Crisis Staff.

20 It simply had no effects on events, nor did Brdjanin.

21 You've heard and read a lot about what he said but very little

22 about what he did. He never ordered the commission of a crime. There is

23 no evidence of that at all. But as you're considering this, look at what

24 he did. Look at the testimony of Boro Mandic beginning at page 21241

25 where Mandic talks about working for Brdjanin after he'd left the Crisis

Page 159

1 Staff and became Minister of Housing and Construction of Republika Srpska.

2 He was protecting housing for the Muslim and Croat residents of the area,

3 preventing their ejection, protecting their property. This is not

4 consistent in any way with someone labelled as the proponent of this

5 strategic plan. Mandic presents numerous documents, and you can look at

6 those documents, verifying these decisions pleads by Brdjanin protecting

7 the housing for non-Serb occupants of Republika Srpska. They are not the

8 work of the strategic plan. Look at the testimony of Mehmed Talic, a

9 Muslim, beginning at page 24138, where he describes how Brdjanin saved

10 1860 Muslims and Croats in Celinac from being deported. They had been

11 loaded on buses and the buses were nearly ready to leave when Brdjanin

12 stopped that process and perhaps saved their lives. Talic tells how

13 Brdjanin helped his daughter to escape from a very perilous situation in

14 the Kljuc municipality and perhaps saved her life. The measure of a man,

15 Your Honours, is by looking at his actions not his words. When you look

16 at Brdjanin's actions you're not going to see a war criminal.

17 I urge you, Your Honours, to set aside this judgement, look at the

18 evidence, don't look at the judgement, look at the evidence, and that's

19 when you'll learn the truth about this case. No reasonable Trial Chamber

20 could have made the conclusions that were made in this case. Brdjanin

21 should and must be acquitted. And Your Honour, I have finished, I think,

22 early.

23 JUDGE MERON: Indeed, you did, Mr. Ackerman. I expected that from

24 you. And I thank you for your argument.

25 We will now reconvene at 32 minutes past 10.00.

Page 160

1 --- Recess taken at 10.11 a.m.

2 --- On resuming at 10.35 a.m.

3 JUDGE MERON: Please be seated.

4 We will now turn to the response by the Prosecution. And you are

5 invited to address us now.

6 MS. GOY: Good morning, Your Honours. I will be addressing you on

7 the question of the requisite duty for commission by omission and after

8 that, Mr. Kremer will respond to Mr. Ackerman's submissions.

9 You asked us to elaborate on the basis for upholding the finding

10 in paragraph 537 of the trial judgement, in particular regarding the

11 nature of the legal duty, if any, breached by Brdjanin and on the evidence

12 supporting it. It is our primary position that the Trial Chamber in

13 paragraph 537, although relying on Brdjanin's conduct as a whole focused

14 on actions. The Trial Chamber found that Brdjanin's inactivity with

15 regard to camps and detention facilities, combined with his public

16 attitude encouraged and morally supported the physical perpetrators.

17 Taken into account the impact of his propaganda campaign, the focus on

18 Brdjanin's contribution is on what he did. This is consistent with the

19 Trial Chamber's general findings on aiding and abetting in paragraphs 368

20 and 369, which do not mention omission.

21 But even if, and that is our alternative position, even if the

22 Trial Chamber based Brdjanin's contribution also on omission, it was

23 entitled to do so. Your Honours have asked the question about the duty

24 for commission by omission. We understand commission by omission in the

25 more general sense, including aiding and abetting by omission, and we will

Page 161

1 respond to the question with regard to aiding and abetting by omission as

2 the findings of the Trial Chamber in paragraph 537 were made in the

3 context of Brdjanin's responsibility as an aider and abettor.

4 We note, however, that our submissions regarding Brdjanin's duty

5 to act would also apply to liability under JCE.

6 It is recognised in the jurisprudence of the ICTY that the

7 contribution for aiding and abetting can be made through omissions

8 provided the accused had the ability to act and a duty to act. The Trial

9 Chamber was correct in finding that Brdjanin contributed by omissions as

10 these elements are fulfilled. As the question Your Honours posed

11 particularly refers to the duty to act I will focus my submissions on

12 Brdjanin's duty to act. Brdjanin had a duty to act for two reasons.

13 First, his prior dangerous conduct, his propaganda campaign, created a

14 climate in which Bosnian Serb forces, Bosnian Serbs, were prepared to

15 commit crimes against Muslims and Croats. And second, as head of the

16 regional government, he had the duty to protect the civilian population

17 and persons hors de combat, especially those deprived of their liberty.

18 In our appeal brief, in paragraph 5.11, we focused only on the

19 second of these duties and referred Your Honours to two domestic sources.

20 Domestic law may be relevant in order to determine which individual is the

21 addressee of the duty. Upon further reflection, we are, however, of the

22 view that a duty which is only accepted in the domestic law of a country,

23 in and of itself, cannot be sufficient to constitute international

24 criminal liability.

25 Here, however, the duties in question, prior dangerous conduct,

Page 162

1 and the responsibility of members of government to protect -- provide for

2 protection of persons deprived of their liberty, are part of customary

3 international law or constitute general principles of law.

4 With regard to the duty arising out of prior dangerous conduct,

5 Brdjanin created the risk of crimes being carried out in camps and

6 therefore has a duty to ensure that detainees are not tortured. It is

7 acknowledged in the jurisprudence of the post -- of this Tribunal, in post

8 World War 2 jurisprudence and generally in national law, that prior

9 dangerous conduct can constitute the source of a duty to act. The Trial

10 Chamber in Oric, in paragraphs 283 and 304, accepted that a duty to act

11 can result from prior dangerous conduct by which the person concerned has

12 been exposed to danger, and I refer Your Honours to footnote 1943 of the

13 Oric judgement to which I will quote. "By playing a substantial role in

14 launching such attacks" -- I'm quoting from the Oric trial judgement. "By

15 playing a substantial role in launching such attacks the accused

16 participated in the creation of a dangerous situation. As a commander he

17 had a duty to avert or minimise this danger and consequently had a duty to

18 take measures to prevent the anticipated destruction of Bosnian Serb

19 property."

20 In the synagogue fire case, a post World War II case, the Court

21 concluded that prior dangerous conduct can constitute the duty to act with

22 regard to crimes against humanity. The accused in this case had brought

23 the victim in a situation where he could be, and in fact was, attacked by

24 the crowd.

25 Prior dangerous conduct is moreover accepted as a duty to act in a

Page 163

1 large number of national systems and can therefore be said to constitute a

2 general principle of law.

3 With regard to the acceptance of prior dangerous conduct as a

4 source of the duty to act in national law, the Prosecution relies on a

5 section of the article of Michael Dutvila [phoen] which is contained in

6 our additional book of authorities. However, should Your Honours wish, we

7 can provide the primary sources in national law.

8 Dutvila analysed national jurisdictions not specifically with

9 regard to the source of the duty to act but more generally with regard to

10 the question where the commission by omission is accepted as a general

11 principle. Where, however, he refers to the duties under national law, he

12 mentions prior conduct in a large number of countries, including common

13 law countries, countries of the Romano-Germanic law family, Russia, and

14 China.

15 Brdjanin, through his propaganda campaign, created a dangerous

16 situation for the non-Serbs in the ARK. I refer Your Honours to the Trial

17 Chamber's findings about the propaganda campaign in paragraphs 323 through

18 332 of the judgement. Brdjanin intentionally and systematically made

19 inflammatory statements on the radio, TV, and print using the media as a

20 tool to implement the strategic plan.

21 The Trial Chamber found that his public attitude, his public

22 statements, had a disastrous impact. They incited the Bosnian Serb

23 population to commit crimes against the Muslims and Croats.

24 And the Trial Chamber found that Brdjanin intentionally

25 contributed towards creation of a climate where Bosnian Serbs were

Page 164

1 prepared to commit crimes against Muslims and Croats. This constitutes

2 dangerous conduct.

3 The evidence is contained in footnotes 860 and -- through 862 of

4 the trial judgement, and I would like to refer Your Honours also to the

5 testimony of BT94 as set out in our appeal brief in paragraph 5.36.

6 Regarding the second source of Brdjanin's duty to act, as head of

7 the regional government, Brdjanin was under a duty to protect the civilian

8 population and persons hors de combat, especially those deprived of their

9 liberty. Customary international law requires the protection of the

10 civilian population and persons hors de combat in times of armed conflict,

11 especially those deprived of their liberty. Rule 87 of the ICRC study on

12 customary international humanitarian law states that civilians and persons

13 hors de combat must be treated humanely. This rule is applicable

14 regardless of the nature of the conflict.

15 It is based inter alia on common Article 3 of the Geneva

16 Conventions, Article 13 of Geneva Convention 3, Article 27 of Geneva

17 Convention 4, and recognised as a fundamental guarantee by both additional

18 protocols. Article 75 of additional protocol 1 and Article 4 of

19 additional protocol 2. A specific subset of this guarantee is the duty to

20 ensure the protection of those who are deprived of their liberty. In this

21 regard, I refer Your Honours particularly to Rule 121 of the ICRC study.

22 The Oric trial judgement, in paragraph 304, confirmed that a duty

23 can arise from humanitarian law out of the responsibility for the safety

24 of the persons concerned, relying on Article 13 of the Geneva Convention 3

25 and Article 11 of additional protocol 1 as well as referring to the

Page 165

1 Blaskic appeal judgement, paragraph 663.

2 International humanitarian law therefore provides a fundamental

3 protection to all categories of persons deprived of their liberty. The

4 victims of torture referred to in paragraph 537 were Bosnian Muslims and

5 Bosnian Croats in camps and detention facilities. Therefore, persons who

6 are entitled to this protection.

7 As head of the ARK Crisis Staff, Brdjanin was under a duty to

8 provide this protection. The Blaskic Appeals Chamber stated in tooth note

9 1384 of the judgement that although technically the duty to provide this

10 protection is upon the state party to the conventions, they have resulted

11 in the recognition of a general principle of criminal liability for

12 omission. Similarly, the Trial Chamber of the ICTR in Rutagnira found in

13 the context of crimes against humanity that the state who is the addressee

14 of this duty can only act through his agents, and that the agents have the

15 obligation not only to respect, like other individuals, fundamental

16 rights, but also have to ensure that they are respected by others, who

17 have a duty to act. That is paragraph 78 and 79. The Rutagnira judgement

18 relied inter alia on Article 2 of the convention on the non-applicability

19 of statutory limitations to war crimes and crimes against humanity, which

20 implies criminal liability for state authority tolerating commission of

21 war crimes and crimes against humanity.

22 The post World War II jurisprudence and the jurisprudence of this

23 Tribunal recognise a duty to act for those who are in charge of persons

24 deprived of their liberty. In the synagogue fire case I mentioned

25 earlier, the Court found that a duty resulted from the fact that the

Page 166

1 accused was escorting the person who was factually in his control. In the

2 International Military Tribunal Judgement for the Far East, the IMTFE

3 Tribunal, it was recognised that a duty to provide the protection for

4 people deprived of their liberty is not only incumbent upon those who have

5 them in their immediate custody; rather, it extends to members of

6 government. The IMTFE found as a matter of customary law that

7 responsibility of the care of prisoners of war and civilian internees

8 rests with the government having them in their possession. This

9 responsibility is not limited to the duty of mere maintenance but extends

10 to the prevention of mistreatment, in particular said that acts of

11 inhumanity to prisoners which are forbidden by customary law and by

12 conventions are to be prevented by the government having them in their

13 possession.

14 The IMTFE thus acknowledged the duty to prevent crimes to be

15 committed against the detainees.

16 The --

17 JUDGE MERON: Excuse me for a second. Do tell me, that

18 articulation of duty on members of government recognition, was it applied

19 to the government as a whole or only to, for example, the Minister of

20 War?

21 MS. GOY: It was applied in the IMTFE judgement, for example to

22 the Foreign Minister. I refer Your Honours to the -- to our supplementary

23 book of authorities where we included the part on the conviction of the

24 Foreign Minister.

25 JUDGE MERON: Thank you.

Page 167

1 MS. GOY: So the IMTFE judgement did not limit the responsibility

2 to those who were directly in charge of the prisoners, not even to those

3 who were in the departments directly concerned with the well being of

4 prisoners, but included members of government.

5 In line with the post World War II jurisprudence, the

6 jurisprudence of the ICTY confirms the existence of the duty to protect

7 persons deprived of their liberty. The Krnojelac trial judgement in

8 paragraph 316 found that Krnojelac as a warden was obliged to adopt

9 appropriate measures with regard to the beatings of the detainees. The

10 Delalic appeals judgement confirmed the conviction condition of Mucic, the

11 camp commander in paragraph 379, for failure to release prisoners who were

12 not granted procedural rights. It referred to his authority to release

13 detainees to establish his duty to act.

14 More generally, with regard to civilian officials, Judge Lindholm

15 in his separate and partly dissenting opinion of the Simic trial judgement

16 said in paragraph 10 that, "as the highest-ranking civilian official in

17 Bosanski Samac, Simic had a duty to do his utmost to protect the non-Serb

18 population."

19 Especially taking into account the reasoning of the IMTFE

20 judgement, Brdjanin was under an obligation to protect, due to his

21 position as head of the ARK Crisis Staff. I refer Your Honours to

22 paragraphs 296 through 302 of the trial judgement regarding Brdjanin's

23 power as president of the ARK Crisis Staff.

24 The ARK Crisis Staff represented the government of the region in

25 times of armed conflict, acting as the highest civilian authority in the

Page 168

1 ARK. Brdjanin's authority and influence included camps and detention

2 facilities which were set up and controlled by the civilian authorities or

3 police or the army, because by virtue of his position as president of the

4 ARK Crisis Staff, he exercised de facto authority over the municipalities

5 and the police and had great influence over the army.

6 In connection -- his connection to camps is moreover demonstrated

7 by the Trial Chamber's finding in 536 that he was made responsible that

8 camps and detention facilities were mushrooming up in the ARK. And in

9 fact, camps and detention facilities formed an integral part of the

10 strategic plan which was implemented by Brdjanin.

11 The situation of camps and detention facilities were discussed

12 during ARK Crisis Staff meetings, and there is moreover evidence

13 establishing that another ARK official, Vojo Kupresanin, in August 1992,

14 took persons out of Omarska and Manjaca camp. I refer Your Honours to the

15 evidence of Witness Mevludin Sejmenovic, transcript pages 12122 and 12223;

16 Witness Boro Blagojevic, transcript page 21923; Faik Biscevic transcript

17 pages 7100 through 7102, and Exhibit P832.

18 Brdjanin himself visited Omarska camp in July, making a tour of

19 the collection centres and there is moreover evidence that Brdjanin

20 visited Manjaca camp and gave a speech that those who were not guilty

21 would be released. I refer Your Honours to the evidence of Witness Enes

22 Sabanovic.

23 MR. ACKERMAN: Excuse me, Your Honour, I think is a mistake.

24 There is no evidence that Brdjanin visited Manjaca. The evidence has to

25 do with Vojo Kupresanin. There is no evidence that Brdjanin ever went to

Page 169

1 Manjaca. The evidence has to do with a person named Vojo Kupresanin so

2 the Prosecution is -- simply misspoke.

3 MS. GOY: No.

4 JUDGE MERON: Can you cite chapter and verse?

5 MS. GOY: Yes, we will. I referred to Brdjanin's visit to Manjaca

6 camp and the evidence of witness Enes Sabanovic, transcript pages 6574

7 through 6576, and Witness BT27, transcript pages 12028 and 12029.

8 To conclude, Brdjanin had a duty to act --

9 JUDGE MERON: Mr. Ackerman, we will have a look at that -- those

10 transcripts so if you cannot look at them, check them now, we -- the Bench

11 will do that.

12 MR. ACKERMAN: Your Honour, I do recall that there was some

13 indication by Mr. Sabanovic that he thought he'd seen Brdjanin there but

14 the Trial Chamber didn't make a finding that Brdjanin had gone there and

15 he did not. It was Vojo Kupresanin who went there. It was very clear in

16 the transcript and that's what the Trial Chamber found.

17 JUDGE MERON: Was there a determination, Ms. Goy, by the Trial

18 Chamber on that or that was a statement in the evidence?

19 MS. GOY: There is no determination of the Trial Chamber on that.

20 We however would like to refer Your Honours to the evidence on the record

21 in this regard.

22 JUDGE MERON: Thank you. The situation is now clear. We will

23 look at that.

24 MS. GOY: To conclude my submissions, Brdjanin had a duty to act

25 for two reasons. First of all, due to his prior dangerous conduct and

Page 170

1 second because he was the representative of the regional government.

2 This concludes my submissions and I'm available for Your Honours'

3 questions.

4 JUDGE MERON: I will turn to my distinguished colleagues so see

5 whether would like to. I do not see any questions. I believe that your

6 colleague will now take over.

7 MS. GOY: Yes, thank you, Your Honours.

8 JUDGE MERON: Thank you very much. For the record, I will ask you

9 to introduce yourself.

10 MR. KREMER: Peter Kremer. I will respond to Mr. Ackerman's reply

11 submissions and the submissions that he made this morning which really

12 echo his reply, repeat what is in his appeal brief and, in fact, repeat

13 the argument that was advanced at trial.

14 What is interesting, from the submissions of Mr. Ackerman this

15 morning, is that nothing has changed. His position at trial was advanced

16 in a very eloquent way. He highlighted bits and pieces of the evidence.

17 He took evidence that he preferred that the Court consider to evidence

18 that his client did not like, and emphasised that, trying to convince the

19 Trial Chamber of his innocence. He failed then, and our submission is

20 that he should fail now. This is not a trial de novo, as this court has

21 said on several occasions. Mr. Ackerman would have you believe that it is

22 a trial de novo. He asks you during the course of his submissions to

23 review the evidence, to review the exhibits, and make your own findings

24 based on another interpretation, an interpretation opposite to that of the

25 Trial Chamber.

Page 171

1 We submit that the standards of review established by this Chamber

2 show that that is neither the correct thing to do, nor would it be a

3 helpful exercise in the finding of justice. We had three experienced,

4 professional judges, considering the evidence carefully, considering the

5 arguments put forward by Mr. Ackerman on Mr. Brdjanin's behalf carefully,

6 providing reasoned opinions on most of the questions, and in terms of

7 where the arguments are that the opinions were not fulsome enough, it is

8 clear that they at least supported their conclusions by the -- a summary

9 discussion supported by ample evidence.

10 This is not a case of a failure to deal with evidence. The

11 evidence was substantial and it was reviewed carefully by the Trial

12 Chamber, and, as this Court said in Kvocka, paragraph 23, "there is no

13 requirement for the Trial Chamber to state all of the evidence that it

14 referred to because it is expected that the Trial Chamber will consider

15 all of the evidence." Yesterday and today, Mr. Ackerman, in his

16 submissions, referred to Witness B19. He suggested that on

17 cross-examination, he was asked if he ever heard of Radoslav Brdjanin. In

18 terms of making statements or being involved in propaganda, and he said

19 no. He did not hear of him in any connection let alone in any connection

20 with the issue of propaganda and its affects.

21 I thank Mr. Ackerman. This morning he gave us the precise

22 transcript references. Based on our review of the transcript of B19,

23 during cross-examination, Mr. Brdjanin is only mentioned twice, in

24 transcript references 20761-2 and 20765-6, which is the reference

25 Mr. Ackerman referred you to. I would urge you to take a look at that

Page 172

1 reference because that reference does not support Mr. Ackerman's

2 statement. The questions and answers do not refer to making statements or

3 being involved in propaganda. In framing his question, Mr. Ackerman never

4 used those words or any words to suggest them. So the suggestion that

5 that conclusion is possible is simply not there. Or not proven. Another

6 example of statements made by Mr. Ackerman which aren't supported is, this

7 morning he said that there is no example of a perpetrator knowing of Mr .

8 Brdjanin. Again, that is not so. As an example, there is a witness, a

9 protected witness, in closed session testimony, T 21123-21125, which

10 clearly demonstrates that he as a perpetrator knew of the existence of

11 Mr. Brdjanin and his authority.

12 Yesterday, you will recall, and this was re-emphasised today, that

13 Mr. Ackerman spoke of the May 4th decision of the National Defence

14 Secretariat which was issued the day before the coming into force of the

15 ARK Crisis Staff. I'll make two observations about the discussion. First

16 of all, the Trial Chamber in paragraph 649 acknowledged that the ARK

17 Crisis Staff did not issue the decision. However, on May the 5th, it took

18 over all of the responsibilities of the ARK assembly and its bodies, which

19 included the National Defence Secretariat. So that the decision of May

20 4th became the responsibility of the ARK Crisis Staff. The ARK Crisis

21 Staff, from May 5th, issued a number of subsequent decisions on

22 disarmament, implemented by the municipalities, and was in charge of

23 deadlines and any actions taken upon their expiry. The key to the finding

24 of the Trial Chamber was not when the decision was made but how it was

25 implemented.

Page 173

1 In addition, for Brdjanin's liability for aiding and abetting, the

2 details of the previous disarmament decision are irrelevant because it is

3 sufficient if the ARK Crisis Staff decisions on disarmament substantially

4 contributed to the attacks. Moreover, a "but for" relationship between

5 the ARK Crisis Staff decision on disarmament and the attacks is not

6 necessary. All that is required is a substantial contribution.

7 Thus the Trial Chamber's finding has no impact on the judgement in

8 this respect. You've asked a question of the Prosecution in relation to

9 resettlement, and that was as a result of an inadvertent error by the

10 Prosecution to include references in annex B. We have prepared a handout

11 that we've given to the clerks, which cites the footnotes to paragraph 194

12 that are not included in the submissions made by Mr. Brdjanin. They are

13 footnote 678, 679, 681. You will see from the handout on page 2, the

14 evidence he cites, at paragraph 194 of the appeal brief are simply two of

15 the many exhibits that were referenced in that paragraph, which helped

16 clarify quite -- helped clarify the position of the Trial Chamber in

17 reaching its conclusion.

18 The judgement, and this is a comment of general application, has a

19 specific structure that includes extensive cross-referencing to sections

20 related to evidence and analysis. In the Defence brief relating to -- I'm

21 sorry, in the Defence brief at paragraph 194, it omits cross-reference

22 evidence such as section 9 C-.2 relating to deportation and inhumane acts.

23 It also admits all of the other exhibits and testimony footnoted in 7 --

24 678 to 681. Avoiding consideration of the evidence in the context of the

25 Trial Chamber's full analysis does not meet this Chamber's standard of

Page 174

1 review.

2 And for analysis and arguments on the individual pieces raised in

3 the Defence appeal brief, we rely on our Prosecution response.

4 Now, I'll move on to the SOS question that was answered by Mr.

5 Ackerman this morning. I want to point out that the use of the acronym

6 SOS refers generally to the Serbian -- I'll be specific. Specifically in

7 the glossary of the judgement, it's referred to the Serbian Defence

8 forces. It doesn't distinguish between the Serbian Defence forces and the

9 Serbian Defence forces in Sanski Most. Secondly, Mr. Ackerman refers to,

10 this morning, Exhibit P395 as proof that the SOS was not operating after

11 May the 5th, 1992. The document dated July 21st, 1992, at paragraph 4,

12 contains the following sentence: "During the night a group of so-called

13 SOS, Serbian Defence Forces, threatened the chief of the CSJB, public

14 security services centre in Banja Luka that they would attack the city

15 prison and free those of its members imprisoned for crimes." That clearly

16 shows that at least in July 21st, 1992, that the SOS was still operating

17 in Banja Luka. And, again, Exhibit P400, a report about paramilitaries

18 operating in the 1st KK area specifically refers to the SOS and the

19 discussion about their disarmament. That document is dated the 28th of

20 July 1992. Both these documents were before the Trial Chamber and had

21 relevance to their determination as to the SOS and its presence and use

22 within the region.

23 Mr. Ackerman also went on for some length dealing with the

24 confusion, as he put it, of the SAO Krajina. This is an issue that was

25 raised at trial, was raised on appeal, and occupies a considerable space

Page 175

1 in his reply brief.

2 The issue as to whether there was a SAO in Croatia -- Krajina in

3 Croatia or a SAO Krajina in Bosnia is something that was fully before the

4 Trial Chamber and they discussed it specifically at trial judgement 166,

5 footnote 426. And what is clear is that the evidence at the trial was

6 such that there could be a confusion, a confusion Mr. Ackerman tries to

7 continue to this day. The Trial Chamber decided the confusion. And the

8 confusion, I would submit, is not really a confusion at all because on

9 December 21st, 1991, as we point out in our response brief, the Republika

10 Srpska Krajina was created. And the discussion in paragraphs 15 to 31 of

11 his reply, and all of the witnesses that he spoke of this morning, who are

12 cited there, are not really in dispute. There was a SAO Krajina in

13 Croatia. But you have to look at 116, Prosecution Exhibit 116, that's

14 referred to in paragraphs 184 and 200 of the Trial Chamber's decision, and

15 you can only conclude that it is correct, based on its date, its content,

16 and its background evidence. Its date is the 24th of February 1992, a

17 full three months after the SAO Krajina became the Republika Srpska

18 Krajina.

19 P116 deals with matters entirely Bosnian. It refers to the SDS in

20 Bosnia-Herzegovina. It refers to the statute that created it. It refers

21 to Vukic as a member of the Executive Committee who is appointed

22 coordinator and it's signed by Dukic, the chairman of the Executive

23 Committee.

24 Vukic is to cooperate with the assembly, not the Croatian

25 assembly, but the BiH Serb Assembly, and the ARK assembly, to ensure

Page 176

1 implementation of decisions, conclusions, and attitudes of the assembly,

2 the Bosnian assembly, and to keep the SDS Executive Committee informed.

3 In terms of the background, P1144 demonstrates that Vukic at the time was

4 the president of the SDS regional board and this role, I would submit, was

5 merely an extension of this regional activity.

6 Moreover, the interpretation of P116 is supported by Blagojevic's

7 testimony, transcript page 21846 to 50, where he discusses P116 and

8 confirms that it deals with the ARK.

9 There is no confusion. To the extent that a confusion was

10 attempted to be brought into the discussion as a result of the submissions

11 by Mr. Ackerman, the Trial Chamber clearly addressed them, decided that it

12 would avoid confusion in its judgement by referring to the ARK and all of

13 the decisions as the ARK notwithstanding that in this particular document

14 the ARK was referred to something different. It was referred to as the

15 SAO Krajina.

16 How much time do I have left?

17 JUDGE MERON: You have no time left.

18 MR. KREMER: I have no time left. If I could just wrap up then by

19 saying that it is our respectful submission that this appeal is an example

20 of a factual appeal that fails entirely to meet the standard of review.

21 It fails because it takes a snapshot of the evidence instead of looking at

22 it all.

23 JUDGE MERON: Sorry, Mr. Kremer, in fairness to you I have to

24 acknowledge that we started add few minutes late so you can carry on for

25 three or four minutes.

Page 177

1 MR. KREMER: I'll just conclude by talking about the standard of

2 the review and why this factual part of the appeal fails to meet it. On

3 the legal grounds set out in the appeal brief, we rely on our submissions

4 in our response brief.

5 It is our position, as I've alluded to, that Mr. Brdjanin has not

6 assisted the appeal process by his appeal brief, by list response brief or

7 by his submissions this morning. He largely proceeds on the assumption

8 that an examination of the cited portion of the judgement will reveal a

9 reviewable error. Moreover, he fails to assist the process by specifying

10 the impact of the error, the miscarriage of justice that results. The

11 table provided pursuant to the 24 July 2006 order does not assist because

12 it does not specify how the error can impact the verdict. His appeal

13 brief in reply brief illustrate his misunderstanding of the Tribunal

14 standard of review. For example, in paragraph 5 of his reply brief

15 regarding error 133, attacking 1065 of the judgement, he argues at the end

16 so, "on its face the conclusion is so defective the reference in paragraph

17 303 of the Brdjanin brief was wholly sufficient to draw attention to

18 factual error."

19 Again, I mentioned Kvocka at paragraph 23. I needn't mention it

20 again. Throughout his submissions, Mr. Ackerman ignores that principle.

21 In terms of the acceptance of municipalities -- municipal

22 authority for -- excuse me -- for Prijedor -- I'm sorry, for the ARK

23 Crisis Staff, again Brdjanin in his argument relating to paragraph 5 of

24 his reply brief ignores large parts of the judgement, for example

25 paragraph 210 is a complete answer to his submission on paragraph 5. The

Page 178

1 expert report of Patrick Treanor and its appendices cited in footnote 548

2 when examined support the finding. Secondly, the documentary exhibits

3 from each municipality implementing ARK Crisis Staff decisions on the

4 three key areas of disarmament, dismissal and retirement or resettlement,

5 available to the Trial Chamber, were listed extensively in appendix C to

6 the final trial brief. There are examples that become clear when the full

7 analysis is done that Mr. Brdjanin's efforts to articulate the error are

8 based solely on the use of the words "no evidence," but never point to the

9 basis on which he makes the claim. He takes a small piece of a sentence

10 or a small piece of the evidence referred to by the Trial Chamber in its

11 judgement, and analyses it so specifically that it ignores the fabric of

12 the judgement, and that is the fatal flaw to all of the factual errors.

13 It is the reliance, over and over and over again, of the no evidence

14 canard that leads to an emptiness that would, in our submission, support

15 dismissing the factual grounds on the basis of standard much review alone,

16 and not only does he not establish the standard of review, he also

17 violates this Chamber's guidelines in respect of repeating arguments made

18 at trial, that are clearly dealt with in the Trial Chamber, by the Trial

19 Chamber, in its judgement, that were reviewed carefully and rejected.

20 He's unhappy with the rejection and he makes the same arguments before you

21 today.

22 And as a third basis, he says there is no reasoned opinion. There

23 is a lot of discussion, a lot of explanation, by the trial judgement as to

24 why it made the decisions it did. But it is clear from the trial

25 judgement that it is based on all of the evidence that is relevant to the

Page 179

1 particular issue, and in our submission, it made no errors, factual

2 errors, no legal errors, and it correctly came to the conclusion that

3 Mr. Brdjanin was guilty of the crimes as charged. Thank you.

4 JUDGE MERON: Thank you, Mr. Kremer. Reply by the Defence, Mr.

5 Ackerman?

6 MR. ACKERMAN: Thank you, Your Honour.

7 My 40 years of doing this, if I've learned anything, I've learned

8 that I've never been successful in a courtroom by attacking my opponent

9 and talking about his failures and so forth. I don't think the

10 Prosecution can be successful in doing that either.

11 When I talked to you about the deficiencies in this judgement, I

12 am not repeating the arguments I made at trial. I'm not trying to get you

13 to reconsider the argument that I made at trial. I know better than that.

14 I know what the standards of review are. I wouldn't do that. What I'm

15 trying to get you to do is what I suggested to you this morning, is look

16 at the conclusions of the Trial Chamber as I have outlined them to you,

17 those that are made based upon circumstantial evidence, and see if any

18 reasonable Trial Chamber could arrived -- could have arrived at those

19 conclusions. Now, that is within your brief. That is something you're

20 supposed to do. That's what you're here for. The links in a chain of

21 circumstantial evidence must be such that when taken together, they permit

22 only one reasonable conclusion, and that is that consistent with the guilt

23 of the accused. What I'm arguing to you is when one or two of those links

24 come out of that chain, the chain collapses. I'm not saying there was no

25 evidence regarding some of the conclusions but when they are built upon a

Page 180

1 chain of circumstantial evidence, part of that chain disappears, it

2 falls.

3 The argument you heard about omission this morning was, I think,

4 academically extremely interesting and extremely well done and I

5 compliment counsel for her work in putting that together for you. I think

6 it was quite well done. If has a major flaw, and the major flaw, I think,

7 is quite obvious. There can't be a duty to act unless that act can affect

8 the situation. There simply can't be. Why act if your act can't have

9 some effect? And the Trial Chamber found that Mr. Brdjanin had no

10 supervisory authority of any kind over any of the people that were

11 committing offences. And therefore, an act would have just been a futile

12 gesture. So there can't be a duty to act unless that act could affect

13 something.

14 Now, you're told that the arguments I made here today are the same

15 arguments I made at trial, are the same arguments that are in my brief,

16 that nothing has changed. Well, how could I change anything? There is a

17 record. I can't change the record. So of course nothing has changed.

18 There is no new evidence, there is no different evidence. It's the same

19 situation.

20 What the Prosecution seems to be saying to you is, if there is an

21 injustice in what the Trial Chamber did, that that injustice must stand

22 because you should not quarrel with the conclusions of the Trial Chamber.

23 And that simply cannot be.

24 Witness BT19, it's this issue that won't go away, what I suggested

25 to you in my argument yesterday was that the Prosecution was relying on a

Page 181

1 statement by this witness who said it was terrible to see normal people

2 become killing machines through the terrible power of the media. In other

3 words, propaganda. And suggesting that that statement somehow applies to

4 Mr. Brdjanin and his statements, and so this cross-examination of BT19, if

5 you'll go look at it, was directed specifically toward the area of whether

6 this person, who was so exposed to everything that was going on there, had

7 ever heard of Brdjanin.

8 "Question: As you sit here today I take it that you don't recall

9 any of those reports that even mention the name of Radoslav Brdjanin, do

10 you?

11 "Answer: That's correct.

12 "Question: None of the attachments that we've talked about here

13 today mention the name of Radoslav Brdjanin, do they?

14 "Answer: Not as far as I know.

15 "Question: And I take it that you've never heard from any source

16 during the time that you were there that Mr. Brdjanin was in charge of

17 anything or was the person you should speak to about anything?

18 "Answer: That's correct."

19 Now, it's almost impossible, when you see who this person is, for

20 him to have been there and not heard and not have dealt with Mr. Brdjanin

21 if he is what the Prosecution says he is.

22 Prosecution referred to Exhibit P395, saying, wait a minute, SOS

23 was operating in Banja Luka, look at P395, as if somehow I kept something

24 from you. I put it on the ELMO so you could read it and told you that it

25 had to do -- no I didn't put it on the ELMO, I just read from it to you,

Page 182

1 I'm sorry -- that it had to do with an attack, a threatened attack, on the

2 Banja Luka prison to free convicted members of the SOS. And what I said

3 about it was it's dated the 21st of July, which is after the Crisis Staff

4 ended. The Crisis Staff ended on 16 July. So to say that this document

5 proves that the SOS was active during the Crisis Staff is of no moment

6 whatsoever.

7 And the other issue that won't go away is the SAO Krajina issue.

8 You were told just a moment ago that that issue was raised and fully

9 argued during trial. It was not. The Prosecution never contended during

10 trial that document P116 referred to the ARK Crisis Staff, did not.

11 During an examination, and you'll see it in my brief, by my co-counsel,

12 Mr. Trbovic at one point, it came up and he rose and said, "SAO Krajina,

13 Your Honour, is not in Bosnia. It's in Croatia." And Ms. Korner, the

14 Prosecution, stood up and said yes. So the Prosecution admitted during

15 the trial that this document does not deal with the ARK Crisis Staff, as

16 did witness after witness after witness, and I don't know why this issue

17 won't die because nothing could be more clear.

18 My arguments, Your Honours, have to do with justice and fairness.

19 We shouldn't allow someone to be convicted in this Tribunal unless there

20 is proof of their guilt beyond a reasonable doubt. That should not

21 happen. And what I'm asking you to do is look at the evidence in this

22 case and see if the Trial Chamber -- if a reasonable Trial Chamber could

23 have arrived at the conclusions that they arrived at in this judgement.

24 Many of Your Honours know, especially Judge Shahabuddeen, who has even

25 been here longer than me, I think, that I've been here a very long time.

Page 183

1 I came into the second trial that ever went and in this Tribunal. I've

2 seen all the Judges of this Tribunal come and go. I've written a book

3 about the jurisprudence of this Tribunal. It has been my life now for

4 nearly ten years. I'm proud of the work I've done here. I'm proud of the

5 work this Tribunal has done, and I want the world, once this place ends,

6 to look back on this institution and say, that was a very worthy thing we

7 did. Justice was done there. That's why I argue with you with such

8 passion in this case, because justice has not been done in this case. But

9 it still can be. And you can do it. And you should. Thank you.

10 JUDGE MERON: Thank you, Mr. Ackerman.

11 We will now turn to Mr. Brdjanin and ask him whether -- sorry?

12 Questions? Please, Judge Guney, I'm so sorry.

13 JUDGE GUNEY: [Interpretation] Thank you, Mr. President.

14 Mr. Ackerman, you challenged the legal duty to act unless the said

15 duty had an impact but the impact follows the act, doesn't it? Therefore,

16 in order to clarify the Defence position in this respect, would you be so

17 kind as to further develop the idea, the legal duty to act with relation

18 to the commission by omission or commission by recklessness. Thank you.

19 MR. ACKERMAN: Your Honour, that's an excellent question and I

20 appreciate it. I think sometimes when we start looking at these legal

21 concepts, these concepts of law, we must take just a sort of brief step

22 back and look at them from a very common sense way, because that's what we

23 are really trying to do when we make all this law and when we talk about

24 all this law, we are trying to impose common sense upon the human

25 condition. And improve it by the imposition of that common sense. And

Page 184

1 common sense would -- even though the law may say that you have a duty to

2 act in some way, common sense would say that that's not a duty that makes

3 any sense if you have no ability to act, no power to act, no capability to

4 act. And so when I argue that to you, what I say to you, how can you

5 impose liability on someone's failure to act unless you can find that

6 action would have resulted in some kind of change in the situation, when

7 you look at what was going on in the Krajina, you simply can't make that

8 finding. The crimes were being committed by people far distant, as the

9 Trial Chamber found, extremely far removed, from Mr. Brdjanin. That's why

10 they failed to find a JCE, and so there is simply no evidence that action

11 on his part would have accomplished anything and I think that has to be

12 there before you can actually impose a duty. I'm not sure that answered

13 your question but it's the best I can do this morning.

14 Any other questions, Your Honours?

15 JUDGE MERON: Thank you, Judge Guney. No, I don't believe so.

16 Mr. Brdjanin, would you like to make a personal statement?

17 THE APPELLANT: [Interpretation] Good morning to everyone. Thank

18 you for giving me this opportunity to address you. I will be very brief,

19 because Mr. Ackerman has stated quite a lot today, and I gave up on

20 challenging some of the documents that I was going to put a question

21 about, but by your leave I would like to tell you a few words about my

22 biography so that you can understand the role I played during the war.

23 I completed my elementary school in Celinac, I completed secondary

24 school in Novi Sad, my undergraduate studies in Sarajevo, and my graduate

25 studies in Zagreb. I told you this because I wanted to show you what the

Page 185

1 situation was before the war. It didn't matter where people went.

2 I worked initially as the supervisor of a construction site in

3 Bosnia and Herzegovina in Serbian Croatia, and I even when went to

4 Algiers. As a relatively young man I became a director of a small

5 construction company in Celinac and later on a director of a larger

6 construction company in Banja Luka. At the multi-party elections, I have

7 to emphasise this, after the HDZ was established in Croatia and later on

8 the SDA in Bosnia-Herzegovina, the SDS was established too. I was asked

9 by a number of businessmen to put myself forward as the head of the

10 municipal government in Celinac. I'm explaining this to you because I

11 think that there was a confusion, not because somebody wanted to do this

12 intentionally, but because simply people didn't understand how the system

13 worked in our country. When I became head of the Executive Board as a

14 member of the SDS party, and that was on the 16th of December 1990, and

15 the Prosecutor can verify whether I'm telling you the truth about this,

16 the only municipality in Bosnia and Herzegovina where nobody was removed

17 from office was the municipality of Celinac and that was during my term in

18 office. Should you find that somebody was removed from office, I will

19 accept that I am to be blamed for everything. However, I didn't allow

20 anybody to be removed from office because I wanted people who were able to

21 serve in office.

22 At the time Celinac was populated by Serbs, predominantly, 93 per

23 cent of the population were Serbs, and we had Muslims and others in the

24 municipal government. When we had some disagreements I withdrew to Banja

25 Luka and became unemployed there. Nikola Erceg at the time served as

Page 186

1 Secretary for Transportation and Communications. The word "secretary"

2 doesn't mean the same as in English because he wasn't really a minister.

3 It was a much more lower post. I was appointed on the 13th of May to an

4 office within ARK. When Mr. Djeric established a cabinet, this is

5 something that Mr. Ackerman spoke about, two things emerged. One was that

6 he said that the Crisis Staff may not interfere into the work of the army

7 and the police, and the other thing that he said is that there is no

8 Crisis Staff of the autonomous region. This is why I wanted to explain

9 how this came about.

10 Since municipalities were quite distant from each other, this is

11 an area of some 10.000 square kilometres, representatives of

12 municipalities within ARK came and they wanted to find a place where they

13 could meet in Banja Luka. They wanted a coordination body to be

14 established that would serve as the focal point where they could express

15 their concerns, complaints, and so on, because the Crisis Staff were seen

16 as a logistical support especially to the families whose sons had been

17 mobilised into the army. They needed to provide firewood for the winter,

18 they needed clothes, they needed food, and so on. You have to bear in

19 mind that there was no corridor open to Serbia at the time, there was a

20 war going on with Croatia, and people simply had to survive under such

21 circumstances. Given that the only candidate could be Mr. Vojo Kupresanin

22 or Mr. Nikola Erceg, I went home. There was nothing for me to do there

23 and I simply went home.

24 When some individuals from municipalities plead a suggestion

25 because they didn't want the Crisis Staff of the ARK to be a supreme body,

Page 187

1 they simply asked that another body be established that would be clarified

2 by somebody. None of the two above mentioned persons agreed to that, and

3 since they put forward my name, they said that I should chair that body

4 because I had most time. I don't know how this word "chair" is seen in

5 English but let me tell you that Mr. Ackerman did everything to find these

6 minutes. However these minutes disappeared, as though there were some

7 magic involved. These minutes clearly indicate that it was a coordinating

8 body. That's all it was.

9 Now, what kind of powers this body had, I'm not a technical person

10 but let me just give you some details. We never had a premises, we never

11 had a staff. We never had any employees. We never had an office car.

12 And the customary approach in the former socialist system was that once a

13 body is established, it's given everything, it's given all the resources,

14 so let me reiterate that that was not the case in this particular

15 instance, we never had anything. There were 21 decisions adopted by the

16 Crisis Staff out of which I signed only three.

17 Let me tell you, and this is the starting point of what I'm trying

18 to tell you today, the Prosecutor said today that I headed the Krajina

19 government. She said that three times. That's not true. I never headed

20 the Krajina government. The Prosecutor is right, it is known as Executive

21 Council or in other words the cabinet. There is an exhibit that

22 Mr. Ackerman gave to the Trial Chamber where the president of the

23 Executive Council stated that the -- that he worked the entire time but

24 that the Crisis Staff never functioned.

25 Let me start from this document. On the 9th of July, when

Page 188

1 Mr. Karadzic sent out a letter that saying that all Crisis Staffs had been

2 disbanded the journalists asked Nikola Erceg president of the Executive

3 Council, "What are you going to do now that all the Crisis Staffs have

4 been disbanded? And he said the following in Banja Luka: As for the

5 existence or non-existence of Crisis Staffs, we, in the cabinet, really

6 don't care." This was stated by Nikola Erceg to the newspaper known as

7 Glas, when asked to comment on the government -- on government's decision

8 on disbanding all Crisis Staffs. Then he continues and says, "I wish the

9 Crisis Staffs never existed because had they not existed we would not have

10 had this crisis." Which doesn't mean that the Crisis Staffs caused this

11 crisis. What they are trying to say, that the crisis was caused by the

12 war, not by the Crisis Staff. And then Erceg continues: "We mostly

13 functioned independently as an executive organ of the government. We

14 received decisions that from the government of -- Serbian government of

15 Bosnia and Herzegovina that we simply had to verify at our sessions."

16 This document, as far as I know, was admitted during trial.

17 As for the verification of documents, or their ratification, this

18 was used as a pretext, and I'm not a lawyer, I'm just a layman, but I

19 think that the large majority of the judgement was based on this, on this

20 decision on disarmament. Mr. Ackerman showed you the document indicating

21 that on the 4th of May, 1999, the secretary of the region, in charge of

22 National Defence, pursuant to the order of the Minister of Defence dated

23 the 16th of April, announced mobilisation, announced disarmament and many

24 other things. Maybe we failed to show you this: Namely that the Official

25 Gazette of the autonomous region published a document which was valid, it

Page 189

1 was namely his document, not the document of the Crisis Staff, and the

2 Crisis Staff simply ratified that document and verified it, and this is

3 what the president of the Executive Council confirmed in his statement,

4 namely that this had been adopted and the 4th of May. There was another

5 document dated the 4th of May signed by 3 persons. I have this document

6 here. The municipal president of Banja Luka, Lieutenant-Colonel Nikola

7 Sajic [phoen] and Secretary for National Defence of the town of Banja

8 Luka, they signed it on the 4th of May and they distributed it and they

9 sent it directly to the Official Gazette. It had nothing to do with the

10 Crisis Staff, which did not even exist at the time. It is true that we

11 ratified or verified many decisions. And I'm not saying that it was

12 illiterate or immature people who ratified or verified that and, yes, some

13 blame can be attributed to them because of them but I can't tell you that

14 we are the authors of this. No. It was done by the Minister of Defence.

15 This is why I wanted to remind you of the constitution of Republika Srpska

16 which I have here where it says explicitly that before the army is

17 established it is the republican command of Territorial Defence that is

18 the commander of Territorial Defence where as regional commanders are

19 responsible to him.

20 I don't want to waste any more of your time. And the same applies

21 to police, namely that policemen are responsible only to the Minister of

22 Police to nobody else. The hierarchy existed. This was known as armed

23 forces, and the armed forces encompassed Territorial Defence, Minister of

24 the Interior and the army. It was centralised from 1945, that is to say

25 from the end of World War II. And perhaps there is a detail here that

Page 190

1 wasn't explained enough, namely that the regional secretary doesn't mean

2 that automatically belongs to autonomous region, no. We simply had six

3 military districts within Bosnia-Herzegovina and it was established back

4 in 1945. I think that one of the experts spoke about this. In parallel

5 with it, another confusion emerged, the confusion that I failed to

6 explain. The Autonomous Region of Krajina was never called SAO Krajina,

7 never, never. It was in Celinac it was adopted, the name, precisely

8 because the SAO had already existed, and this is why they decided to call

9 it ARK.

10 And there is something else that shocked me, shocked me

11 profoundly, namely several witnesses came here to prove that I had visited

12 Manjaca. I apologise for looking perhaps too simplistic. If you were to

13 offer me to go home on the condition that I should find the location of

14 Manjaca camp, I would fail to do that. I don't know where it was. One of

15 the witnesses who came to testify once again for the Prosecution said the

16 following: I think Mr. Ackerman will remember this. He to talked about

17 many things but not about that. When asked how long he stayed at Manjaca

18 he said from the first day to the last day, and when asked whether I

19 visited Manjaca, he said this man never visited Manjaca. He even

20 explained the height and the appearance of the person who visit the

21 Manjaca, he that is blond, tall, with blue eyes, and so on. I do not wish

22 to justify any crime or anything of the sort but I wish to tell you the

23 following: The more innocent people are sentenced, the more guilty people

24 will be amnestied. This is why I simply do not understand the situation.

25 If I am guilty for something, then say it plainly. Why are you now saying

Page 191

1 that I visited Manjaca when I had never done that in my life? And this

2 keeps coming up.

3 Today, for example, I learned that I headed the cabinet and when

4 one of the representatives of Republika Srpska visited I apparently said

5 the following: "It is only when somebody needs to be blamed that people

6 say that I headed the government and when it comes to other things I am

7 never in charge."

8 Let me give you another illustration about my role, and this is

9 something that can be verified once again. When the war was over,

10 Republika Srpska, rather its assembly, decided to award the so-called free

11 shares or free vouchers to various high officials and other individuals,

12 and normally individuals were awarded 150, and newborn children were

13 awarded 20 shares. When I asked my wife, my wife said that I was awarded

14 20 shares just like a new born and then there are some other people that

15 received what they deserved. I'm not here to blame anybody. Nothing was

16 ever paid to me, not a single trip was paid to my wife, and if I was such

17 a powerful person how is that possible?

18 Now let me tell you something about the powers I had and powers I

19 didn't have. Mr. Ackerman spoke about war profiteers. People warned me

20 back at the time that I would pay for criticising war profiteers, whenever

21 I had a chance I criticised them in the media and I used various

22 derogatory terms when referring to them. These war profiteers gained

23 power, they became rich, and some of them are now active in politics. I'm

24 now not referring to people who were rich before the war, who were wealthy

25 before the war I'm not speaking about that. I'm speaking of the people

Page 192

1 who had just a bicycle when the war began and had much more when the war

2 ended. Everybody knew that I criticised war profiteering and various

3 personal interests. I always criticised the war profiteers and

4 paramilitary formations. And now I'm here on trial for allegedly

5 supporting paramilitary formations.

6 Gentlemen, I'm sure that you have many recordings of my statements

7 where I was the only one who publicly praised the fact that one commander

8 of a paramilitary formation was arrested and disarmed, and now I want to

9 say a few words about disarming. I told you that the decision on

10 disarming was signed by the Minister for National Defence. I truly

11 believe that this was a great act and I'll explain to you why.

12 It has been constantly put forward here that disarmament was meant

13 it disarm the Muslims and the first formation that was disarmed were

14 Wolves from Vucjak, which comprised 100 per cent Serbs and the SOS was

15 disarmed as well. It is precisely because of them that this decision was

16 adopted at the level of Banja Luka. I cannot speak for what went on

17 elsewhere. I can only speak of Banja Luka. But the purpose of disarming

18 was not what the Prosecution claims.

19 The witnesses testified here and I wasn't there so I can't speak

20 about that but the witnesses said that the war in Prijedor started when

21 some Muslims attacked the troops, the army troops, that were withdrawing.

22 And the same thing happened elsewhere. So this can't be the reason for

23 disarming. Perhaps somebody abused the process of disarming, but that

24 wasn't our initial goal and it would not have been ratified or verified at

25 the Crisis Staff had it not been the case. We had 90 per cent of Serbs

Page 193

1 living in Banja Luka so if we adopted that decision that naturally we

2 intend the Serbs to disarm, there is absolutely nothing -- this has

3 nothing to do with paramilitary formations, which the Prosecution keeps

4 alluding to.

5 I told you now about the disarming process. Now let me say a few

6 words about the replacements of people from office and my powers over

7 police and army.

8 Mr. Ackerman presented something to you and I will say something

9 about it in the end, including the letter that I have to mention. There

10 is a whole set of Official Gazette issues of Republika Srpska. I stayed

11 after midnight going over them last night. When it comes to various

12 dismissals, replacements, decisions, and everything else, there is not a

13 single instance where my name is mentioned in the official gazette. I do

14 not deny what I was but you cannot keep on saying that I was the official

15 number 1 because it simply isn't true.

16 Mr. Ackerman believes that he showed very convincingly in the

17 trial the following chart that you can look at yourself. Representatives

18 of the international community, representatives of the Red Cross,

19 Bishop Komarica representing the Catholic church, the Banja Luka efendi

20 representing the Muslim community there, and other people addressed

21 officials at the level of ARK in Banja Luka about a hundred times if not

22 more. Mr. Ackerman showed that to you and you can see the five persons

23 that they addressed. I have the list here. These people never addressed

24 me. And they would not have been naive not to address me if I was indeed

25 number 1 and they never addressed me. Mr. Ackerman led evidence to this

Page 194

1 effect during trial. This is why nowadays, when I watch television, I'm

2 not going to waste much more of your time, I will wrap up but I have to

3 tell you sincerely just how right I was when I criticised the war

4 profiteers. Why? Because all of three peoples, Muslims, Croats, and

5 Serbs, and you know, we in Detention Unit can watch the television

6 stations from Sarajevo, Zagreb and Belgrade, and we can see that those who

7 were poor became even more poor and that the new oligarchs are precisely

8 the war profiteers. Nowadays they can pay for the information, they can

9 present the information that suits them. One of the persons who was a

10 thorn in their side was precisely myself. When I established the people's

11 army [as interpreted] in the assembly, and I did that because I was

12 unemployed for four years. I was unemployed precisely because I

13 criticised war profiteering.

14 MR. ACKERMAN: Excuse me, Mr. Brdjanin, the transcript is wrong.

15 Mr. Brdjanin didn't establish a people's army. He established a people's

16 party. That's at 65 line 25. And the transcript says a "people's army."

17 Mr. Brdjanin will confirm that he said "people's party."

18 JUDGE MERON: Please proceed, Mr. Brdjanin, and I hope that in a

19 few minutes you will come to the end of your comments.

20 THE APPELLANT: [Interpretation] Yes, I will.

21 Now, as I watch television, to tell you the truth, I deeply regret

22 the fact that so many people fell victim throughout the former Yugoslavia.

23 Everybody thought that they were waging a just war for their state, while

24 in the meantime certain individuals were making themselves rich. This is

25 something that I stated in the last assembly session, and I in fact gave

Page 195

1 the names of the people who covered war profiteers. That's what I did.

2 So I'm not surprised by the consequences that ensued.

3 The people who live in my area are known as the people who are

4 easily misinformed, people receive information in various pubs and bars

5 and so on. There was a director from Banja Luka, I'm not going to say his

6 name, who said here that I had been replaced. He kept repeating that for

7 seven days. When asked by Mr. Ackerman whether I was fired, whether he

8 was fired by me, he said that that was the information that he received.

9 That's what the people told him. That was the misinformation that was

10 spread. This is why I wish to reiterate that I would never order a

11 commission of a crime, that I wasn't empowered to do that, and as for me

12 keeping quiet, the gentlemen, you have to understand that it was wartime,

13 crimes were not a public affair. Crimes did take place everywhere, even

14 among the Serbs. However, they were secret. They were kept secret. And

15 you can see that here. There is this decision, the decision on

16 establishing what they called a holding centre in Prijedor where chief of

17 police says, not a single piece of information can be publicised, that all

18 information must come to him, that not a single piece of information can

19 be announced publicly. This is why it is absurd to believe that we were

20 aware of everything that was going on and that we should have reacted.

21 Yes, of course we should have reacted but we didn't know. I don't know

22 whether you will believe me but I learned of 90 per cent of the things

23 here during trial, even though I lived in Banja Luka. During wartime, for

24 example, I never went to Sanski Most and here I'm being blamed for some

25 things regarding Sanski Most. The president of that municipality and I

Page 196

1 were assemblymen together. After that meeting that was discussed here, we

2 never had any further contacts, the meeting concerning the subregion.

3 Now, let me tell you a word or two about the letter that you sent

4 to me yesterday.

5 The letter that I sent to you yesterday.

6 I was so displeased, I was so bitter, about the trial judgement,

7 and I was bitter because so many things were ascribed to me that I simply

8 flew it was absurd, and I was in such a mood that I stopped believing in

9 my Defence counsel. I know today as I listen to Mr. Ackerman, that he

10 tried to prove everything as it was. I know that it was difficult for him

11 as an American to understand what happened there, to understand our

12 customs, to understand the circumstances, and as a result of these

13 misunderstandings, this problem came about. However, today, I realised

14 that it was indeed just a misunderstanding, and you can consider this

15 matter resolved.

16 Before I sit down, let me just say this: I'm pleased that my

17 family knows, that my friends know, that I definitely am not the man 245

18 that I was portrayed to be here. I regret, and I feel bad, about the fact

19 that both the Trial Chamber and the Prosecution here believe me to be some

20 kind of the worst possible criminal.

21 I think that a lot of time will be needed in order to comprehend

22 the role of the Crisis Staff. When Mr. Ackerman used the word "a puppet,"

23 I fully support it. It was decided that our bodies should be established

24 just because people knew that one day they will need a scapegoat for

25 whatever happens.

Page 197

1 Thank you for listening to me. I don't know whether I managed to

2 say everything I wanted to say but that is irrelevant now. Once again,

3 thank you.

4 JUDGE MERON: Thank you, Mr. Brdjanin, for your statement.

5 We have heard with a great deal of attention the arguments made by

6 the parties and, of course, the statement of Mr. Brdjanin.

7 You may sit down, Mr. Brdjanin.

8 We will consider everything and work on the judgement, and in due

9 course you will be told when the judgement will be pronounced.

10 Before concluding, I would like to thank the parties for their

11 argument. I would like to thank the staff for the very good work that

12 they have done, the Registry and others, and I would like to thank the

13 interpreters who translated sometimes very fast speeches which were not

14 easy to translate. I thank the record writer and, of course, I thank my

15 colleagues, my distinguished colleagues, the Judges, and these hearings

16 are now completed and the Court will rise.

17 --- Whereupon the hearing adjourned at 12.03 p.m.