Tribunal Criminal Tribunal for the Former Yugoslavia

Page 195

1 Friday, 6 July 2007

2 [Open session]

3 [The accused entered court]

4 --- Upon commencing at 1.30 p.m.

5 JUDGE ORIE: Good afternoon to everyone. Mr. Registrar would you

6 please call the case.

7 THE REGISTRAR: Good afternoon, Your Honours. Good afternoon to

8 everybody in the courtroom This is case number IT-04-83-PT, the

9 Prosecutor versus Rasim Delic.

10 JUDGE ORIE: Thank you, Mr. Registrar. May I have the

11 appearances, Prosecution first?

12 MR. MUNDIS: Good afternoon, Your Honours, counsel, and everyone

13 in and around the courtroom; for the Prosecution, the Prosecutor, Daryl

14 Mundis and Aleksandar Kontic.

15 JUDGE ORIE: Thank you, Mr. Mundis. For the Defence?

16 MS. VIDOVIC: [Interpretation] Good afternoon, Your Honours. My

17 name is Vasvija Vidovic, and together with Mr. Nicholas Robson, we are the

18 Defence counsel for General Rasim Delic, and with us here are our

19 associates, Lejla Gluhic, Lana Deljkic, and Asja Zujo.

20 JUDGE ORIE: Thank you, Ms. Vidovic. We are here this afternoon

21 in an urgent hearing on a request for a referral of the case, the Delic

22 case, as it was filed on the 5th of July of this year.

23 The Chamber would very much like to hear further submissions of

24 the parties and would like to focus on the following issue. The Delic

25 case was not considered an appropriate case for referral until the present

Page 196

1 request. What now has changed in the character of the case, especially

2 focusing on level of responsibility and gravity of the crimes so as to

3 cause an urgent request for referral, and what further are the procedural

4 consequences of a, if I could say it, five-minutes-to-12 referral

5 procedure, both for the case as planned to start next Monday before this

6 Tribunal and in view of the referral proceedings, and in view of

7 proceedings, if the case would be referred as requested.

8 The Chamber would like to give, initially, not more than 20

9 minutes to each party to make additional submissions. For the Defence,

10 it's good to know that the Chamber -- that the Chamber, but when I am

11 saying the Chamber, of course, you would also need further explanation of

12 why there are only two judges. That is because Judge Parker is not

13 available due to Tribunal business and that the two remaining Judges of

14 this Referral Bench, as appointed this morning, have decided that it would

15 be in the interest of justice to proceed.

16 So further submissions are requested from the parties, but it's

17 good for the Defence to know that the Chamber has read a public filing,

18 this Referral Bench has read a public filing in the Delic case, in which a

19 response is given to a request by the Prosecution to suspend all

20 proceedings in the Delic case. As usual, before this Referral Bench, if

21 it's clearly put on the record that the parties or the Chamber has seen a

22 public filing or a public decision, then it is clear that we can take that

23 into consideration as something now known and on the record known to the

24 Bench.

25 Mr. Mundis, could I give you an opportunity first to make

Page 197

1 additional submissions?

2 MR. MUNDIS: Thank you, Mr. President, Your Honours. The

3 Prosecution has some prepared comments that we would wish to put on to the

4 record. I believe that these comments will encapsulate and address the

5 specific questions which the Referral Bench would like addressed; and, of

6 course, in the event that our comments are inadequate in that respect, we

7 will certainly entertain any questions that the Referral Bench may have.

8 Let me, Your Honours, start by acknowledging our appreciation that

9 the Referral Bench was able to hear our urgent application in perhaps what

10 might be considered record speed here at the Tribunal.

11 We do express our regrets, however, that the representatives of

12 the Bosnia-Herzegovina have been unable to attend due to the emergency

13 nature of this hearing. It is our submission that prior to the Referral

14 Bench rendering any decision, that they be offered the opportunity to make

15 their views known on this matter. I will put on the record that we have

16 had some informal oral discussions with the authorities, and they are

17 prepared to take this case and their position is that they are able to

18 take this case and afford all due process rights to the accused in the

19 event the case were to be referred.

20 Let me start by saying that while the Trial Chamber's oral

21 decision under Rule 73 bis is the precipitating factor in this 11 bis

22 application of the Prosecutor, the principles underlying the Prosecution

23 motion must in our submission be considered on the merits, notwithstanding

24 the late timing of this application, as the Presiding Judge indicated at

25 12 minutes to -- or five minutes to midnight.

Page 198

1 In other words, our view is that the fact that the case is

2 scheduled to start in a few days should not impact upon the merits of our

3 11 bis application; and, of course, pursuant to the very terms of 11 bis,

4 such applications must be made prior to the start or the commencement of

5 the trial, which in our view we made as soon as it became clear to us, for

6 the reasons which I'll be elaborating upon, it has become -- this case has

7 become proper, if you will, for referral under 11 bis.

8 Of the remaining cases to be tried before this International

9 Tribunal, the Delic case is probably the only case that fits within the

10 scope of Rule 11 bis. Let me also indicate, just by way of procedural

11 background, that more than 15 months ago the Prosecution filed a motion

12 seeking leave to amend the indictment in this case to include liability

13 under Article 7(1) and to include crimes for which the accused was

14 allegedly involved, involving Bugonja, Grabovica, and Uzdol. This motion

15 was denied on the grounds that it could have impacted upon the start date

16 of the trial, even though the case was not docketed.

17 In our submission, the practical effect of that decision,

18 approximately one year ago, was to significantly reduce the number of

19 crimes for which the accused is to stand trial. The recent decision of

20 the current Trial Chamber has had the real effect of further reducing the

21 size of this case, since the Prosecution, under the time and witness

22 limitations imposed upon us, will be able to present only a truncated

23 picture of the accused's total alleged criminality.

24 There are, Your Honours, important principles involved in this

25 case, principles which go to the heart of the independence of the Office

Page 199

1 of the Prosecutor. Namely, there comes a point where the Prosecution is

2 unable to prevent -- to present the full scope of the alleged criminality

3 of an accused. While this may not present problems in larger cases, where

4 representative counts or charges may nevertheless be presented, this is

5 not the situation in smaller cases, such as in the Delic indictment, where

6 the impact of Rule 73 bis has greater relative impacts.

7 At the outset of the discussion concerning the impact of Rule 73

8 bis(C) decision, let me stress that the Trial Chamber's oral decision,

9 which is the direct result of why we are here today, does not require the

10 Prosecution to drop any counts or any --

11 JUDGE ORIE: I take it the cause and not the result.

12 MR. MUNDIS: Sorry. Yes, that's correct.

13 JUDGE ORIE: Please proceed.

14 MR. MUNDIS: -- does not require the Prosecution to drop any

15 counts or any charges, but that is in effect, Your Honours, the practical

16 impacts of the decision. As a result of the Trial Chamber's decision of 2

17 July, Monday of this week, the time available to the Prosecution has meant

18 that choices must be made about how we are to proceed with the case.

19 These choices have led to the unfortunate conclusion that the

20 case, as it could be presented in the time made available to the

21 Prosecution, is such that the case now clearly falls within the ambit of

22 Rule 11 bis, and I will elaborate upon that in just a few moments. While

23 the Prosecution understands the policies underlying Rule 73 business, and

24 although the Prosecutor vehemently opposed the adoption of that Rule, the

25 OTP has obligingly accepted it since it was lawfully adopted.

Page 200

1 Moreover, we understand that the purpose of today's hearing is not

2 to re-litigate the 73 bis decision of the Trial Chamber, but it is our

3 view, our position, that it is necessary to understand why that decision

4 has led to the application under Rule 11 bis; and in order to do that, I

5 need to briefly explain, in our view, what that decision means to the

6 Prosecution.

7 As Your Honours are aware, the Trial Chamber ordered, under 73

8 bis(C), the Prosecution to call 55 witnesses and that the Prosecution case

9 would have a total of 170 hours, including direct examination,

10 cross-examination, redirect examination, questions from the Bench, and

11 procedural matters.

12 For more than two years, the Prosecution has consistently

13 indicated that our case would require four to five months and that

14 approximately 75 witnesses would be required to prove the Prosecution

15 case. At no point in the earlier proceedings, until one week before the

16 trial was scheduled to start, was the Prosecution put on notice that its

17 proposed length of time or the number of witnesses we had proposed was

18 excessive. At no point in the earlier proceedings was the Prosecution

19 invited to reduce the size of its case pursuant to Rule 73 bis.

20 While the Prosecution will be filing additional urgent submissions

21 before the Trial Chamber on this matter later today, in light of the fact

22 that the Trial Chamber has refused to grant our request for a suspension

23 of the proceedings, pending the outcome of this referral process, the

24 Prosecution does not have a sense of optimism that this issue will be

25 successfully resolved prior to the anticipated commencement of the trial.

Page 201

1 Thus, if this Referral Bench is of the view that the Rule 11 bis

2 application is premature, in light of the possibility that the Trial

3 Chamber may grant the Prosecution relief in the future, the Prosecution

4 submits that events may, and I stress the word "may," unfold in such a way

5 that there is no indictment to refer.

6 Under the conditions imposed upon the Prosecution by the Trial

7 Chamber, the Prosecution will be unable to lead evidence with respect to

8 one of the alleged crime bases in the indictment; namely, the

9 Maljine-Bikosi components of the case.

10 JUDGE KWON: Sorry to interrupt, Mr. Mundis. It is your case,

11 then, isn't it, that in one way or another, the Trial Chamber's decision,

12 73 bis(C) decision is to be revoked, then the case will become appropriate

13 to be heard at this Tribunal. Otherwise, it would be inappropriate to

14 refer the case.

15 MR. MUNDIS: Yes, Your Honour. In short, and again, we will be

16 making further urgent submissions later today, if the Prosecution --

17 JUDGE KWON: What is that urgent motion? That being the case, the

18 proper step for you to take is to appeal the decision, isn't it?

19 MR. MUNDIS: Well, Your Honours, we made a determination that

20 based upon, number 1, based upon the language of Rule 73 bis(F), which

21 allows the Prosecution to request additional time or additional witnesses

22 after the commencement of the trial, that the likelihood of an appeal on

23 this issue would not be successful because Rule 73 bis explicitly allows

24 for reconsideration of the decision concerning the number of witnesses and

25 the amount of time available.

Page 202

1 Moreover, there was some concern about whether we would be in a

2 position to have the trial suspended while that appeal was pending for the

3 simple reason that with the 170 hour limitation what we are now talking

4 about is a Prosecution case lasting nine and a half to ten weeks, by which

5 point it's unlikely that any appeal would be resolved before the

6 Prosecution case was over.

7 But to return to your earlier question, yes, it is our position

8 that the Rule 73 bis(C) oral decision has made it impossible for the

9 Prosecution to proceed on even the indictment that we have now, which is a

10 relatively, and I stress "relatively," small case. And it's, I believe,

11 the smallest case among those cases yet to be tried before the

12 International Tribunal, of course, excluding ongoing cases. But of the

13 remaining case that is have yet to start, the case against Rasim Delic is

14 by far the smallest.

15 JUDGE ORIE: I have one question to add to that, Mr. Mundis. You

16 are certainly aware of the case law of this Referral Bench, that we always

17 give decisions and consider applications on the basis of the operative

18 indictment at that moment. What you are telling us at this moment is that

19 the indictment, as it stands, cannot be heard -- at least the case cannot

20 be presented by the Prosecution; therefore, you request referral.

21 And you say that since the case will be reduced, that would make

22 the case an appropriate case for referral. At the same time, we at this

23 moment have a request in front of us on the basis of the operative

24 indictment, so, therefore, you are speculating, or at least you are

25 arguing your case, on the basis of an indictment which is not before us.

Page 203

1 MR. MUNDIS: Well, Your Honours, we understand that what we are

2 talking about is referral of the indictment as it stands now. The point

3 we are trying to make is that because of the decision of the Trial

4 Chamber, it is impossible for the Prosecution to proceed on the basis of

5 that indictment, the totality of that indictment. In effect, what the

6 result of that decision means that we will be unable to proceed on that

7 indictment.

8 I'm by no means saying that the Trial Chamber would be referring

9 an indictment that's not properly before it, or the Referral Bench. What

10 I am saying is that notwithstanding the fact that we won't even be able to

11 proceed against the totality of the indictment, the fact of the matter is

12 that the indictment, as it stands now, the amended indictment from July

13 2006, that indictment is the smallest indictment of any case yet to be

14 tried before this Tribunal.

15 JUDGE ORIE: Let me be clear. Isn't it true that in the

16 application, it has been clearly stated which portion of the indictment

17 should be dropped because the Prosecution sees no possibility to pursue

18 that portion of the indictment, not being able to present evidence, and

19 that that reduces the case in such a way that it is now where it was not

20 earlier, where it now becomes of a size that is appropriate for referral?

21 And at the same time, we have in front of us a request for referral of the

22 indictment, not with one portion taken out but the whole of it.

23 MR. MUNDIS: I understand Your Honour's concern and perhaps that's

24 simply the pleading was in part inartfully drafted. I do understand Your

25 Honour's concern. Obviously, we are asking for the entire indictment, the

Page 204

1 amended indictment, as it stands now, to be referred, and, perhaps, our

2 arguments in that sense were not as clear as they should be.

3 Let me stress, however, that what we are talking about here is a

4 relatively small case. And the more important factor in terms of the

5 level of responsibility of the accused is that what distinguishes this

6 from other cases which have been referred is the fact that this is a case

7 alleging 7(3) liability only, which, of course, in our view, means that

8 the level of responsibility of the accused is fundamentally different from

9 those cases which allege both 7(1) and 7(3) liability or 7(1) liability

10 only.

11 It should be stressed that the accused is not charged with

12 ordering these crimes or instigating them or even aiding and abetting

13 them. Though he is no less culpable for his failure to act under Article

14 7(3) than he would be for the commission of crimes under 7(1), he does

15 under this form of liability necessarily play a much smaller role in the

16 commission of the murders or other crimes as alleged in the amended

17 indictment.

18 Cognizant of the time, Your Honours, let me just move on to one or

19 two final points.

20 With respect to the situation, again, in the absence of the

21 authorities from Bosnia-Herzegovina, the situation in the judicial system

22 of that country at present, we generally rely upon the submissions in our

23 written motion, but let me stress one other point, with regard to the

24 capability of the courts of Bosnia-Herzegovina and the judicial system in

25 that state to deal with high profile war crimes cases. It should be said

Page 205

1 that there are currently -- that they are currently trying Momcilo Mandic,

2 the former RS Minister of Justice, and Gojko Klickovic, the former RS

3 Prime Minister. So the judicial system in Bosnia-Herzegovina is capable

4 of trying very senior level accused.

5 I have three final points.

6 It is our submission, Your Honours, that if Rule 11 bis cannot be

7 invoked in this case, under these circumstances, given the size of this

8 case and the nature of the charges and the form of liability alleged, then

9 surely there is no other case currently before this International Tribunal

10 that would be the proper focus for transfer under that rule.

11 In terms of the size of the case, it is certainly in line with

12 other cases that have been the subject of Rule 11 bis transfers and is

13 actually smaller than some of the cases that have been transferred.

14 The Prosecution respectfully submits that the trial in this case

15 cannot commence until this Referral Bench has rendered its decision on the

16 issue of referral.

17 JUDGE ORIE: That's a matter to be addressed to the Trial Chamber,

18 not to the Referral Bench. The Referral Bench cannot give orders to the

19 Trial Chamber whether or not to suspend the start of a trial.

20 MR. MUNDIS: I understand that, Your Honour.

21 And the final point would be the one which we stressed at the

22 beginning that the authorities of Bosnia-Herzegovina should be afforded an

23 opportunity to be heard on this matter, prior to the Referral Bench

24 rendering its decision. If there are no further questions, those are the

25 submissions of the Prosecution.

Page 206

1 JUDGE KWON: Are you not going to address the issue of the

2 procedural impact of potential referral, if any, in particular in terms of

3 the right of the accused to expeditious trial, if referred?

4 MR. MUNDIS: I understand that, Your Honour. Again, in terms of

5 the impact on the right to an expeditious trial, if the case were to be

6 referred, that would properly be a question to be put to the authorities

7 of Bosnia-Herzegovina, in terms of when or how quickly he would be brought

8 to trial there.

9 Let me stress, though, in terms of the impact here, that the

10 accused has been on or was on provisional release pending this trial.

11 He's been back in custody since the 25th of June 2007, to the extent that

12 that has any impact upon the Referral Bench's thinking.

13 In terms of the procedural impact upon a case which is scheduled

14 to start in three days' time, again, we would submit that that is not

15 something which is a proper consideration for the Referral Bench, but

16 rather the case should be decided, the transfer of the case should be

17 decided, on the merits of the application, not on its practical impacts

18 upon the docket of the International Tribunal.

19 JUDGE ORIE: You, therefore, consider that the discretion of the

20 Referral Bench should just ignore all procedural impacts of its decision?

21 MR. MUNDIS: Well, to the extent, Your Honours, that the -- what

22 the Referral Bench is concerned about would be a hole in the docket or the

23 inability of the Tribunal to put on a seventh case during 2007, then, yes,

24 we would say that that's not something that the Referral Bench should take

25 into consideration.

Page 207

1 If there are other procedural impacts, perhaps I've misunderstood

2 the question, but our submission would be that, no, it would not be a

3 proper exercise of the Referral Bench's discretion to consider the fact

4 that the case is scheduled to start very shortly; and in the absence of

5 this case starting, there would be a hole in the docket for a few months

6 perhaps. That, in our submission, is not something that the Referral

7 Bench should take into consideration, but rather the merits of the case in

8 terms of the indictment and the level of responsibility of the accused.

9 JUDGE ORIE: Thank you, Mr. Mundis.

10 Ms. Vidovic, 20 minutes for you as well. Please proceed.

11 MS. VIDOVIC: [Interpretation] Thank you, Your Honour. I think

12 I'll be relatively brief. Your Honours, first of all, I would like to

13 tackle an additional argument of the Prosecutor today. Mr. Mundis said

14 that, unofficially, they contacted the authorities of Bosnia-Herzegovina.

15 I don't know which authorities he meant, and that the position there was

16 that the General Delic trial, they stated their position on the fact of

17 the trial being referred.

18 I would be very surprised, Your Honours, if the authorities of

19 Bosnia-Herzegovina presented the view that they accept the case, because

20 this would be quite contrary to the position taken by those same

21 authorities of Bosnia-Herzegovina when it came to the case against

22 Dragomir Milosevic, where they quite clearly stated that they consider

23 that the accused, who are at a high level of responsibility, should be

24 tried here in The Hague. However, I do think that the position taken by

25 the authorities of Bosnia-Herzegovina is not of decisive importance in

Page 208

1 these criminal proceedings.

2 Your Honours, although I had certain dilemma before this meeting

3 as to what the true and actual reason was for the fact that General Delic

4 was asked to be referred to Sarajevo, I really don't have them any more.

5 I have gained the opinion that the Prosecution is angry because the Trial

6 Chamber has asked them to present 55 witnesses during a period of three

7 months. Now, the Pre-Trial Judge, Judge Kwon, luckily is with us here

8 today as well, and he will remember that the Prosecution from the very

9 beginning envisaged about three months. They deemed that to be enough

10 time for their case, and I issued a warning and said that that was not a

11 realistic estimate.

12 However, whatever the case may be, and we expound that in our

13 response and don't want to dwell on that, the Prosecution did have the

14 necessary procedural possibilities, if it was dissatisfied, to ask leave

15 to file an appeal; that is to say, it had the possibility that after the

16 beginning of trial, it asked for change in the ruling of the Trial Chamber

17 so as to allow them additional witnesses and additional time.

18 Now, why is it that the Prosecution, at this point in time, is

19 taking this kind of step? It is up to you, Your Honours, to decide and

20 rule. However, I should like to focus my attention on the reasons

21 pursuant to Rule 11 bis, which the Prosecution sets out in its motion, as

22 being standards which correspond to the demands of Rule 11 bis of the

23 rules of procedure and evidence, for the case to be referred to Bosnia and

24 Herzegovina.

25 First of all, I would like to stress, Your Honours, or rather, I'd

Page 209

1 like to explain what the Prosecutor quite obviously doesn't feel to be

2 important; whereas, I consider it to be a substantive matter in all

3 criminal trials in the world. The accused is here since February 2005,

4 waiting to go to trial, and he has spent three months in detention.

5 Pursuant to Article 20 of the Statute, he has the right to a fair and

6 expeditious trial, as the Statute states.

7 According to Article 21(4)(C) of the Statute, he enjoys the right

8 to be tried without undue postponement, and the Prosecutor, in his motion,

9 states that it is in the interests of justice that the case be referred

10 pursuant to Rule 11 bis to the authorities in Bosnia-Herzegovina. Quite

11 the reverse is true, Your Honours. The interests of justice demand that

12 the trial of General Rasim Delic start on Monday, the 9th of July 2007,

13 when it was scheduled to do so, and that there should be no postponement.

14 It is quite -- it is not at all serious in this stage to bring

15 matters of this kind. It is unfair to the accused. It is unfair to us

16 here in the Defence team. The accused is psychologically ready to go to

17 trial. We are ready and prepared to go to trial. We have invested

18 material resources to ensure that we have the necessary premises and

19 facilities to go ahead, and witnesses are lined up to begin testimony in

20 two or three days time.

21 Now, if the Trial Chamber were to rule in favour of the

22 Prosecution, we would of course appeal, and the accused would have to wait

23 until the appeals procedure meets its conclusion, then he would have to go

24 into a series of other procedures while being referred to

25 Bosnia-Herzegovina. The indictment would have to be amended in conformity

Page 210

1 with the laws of Bosnia-Herzegovina and, ultimately, an assessment of

2 evidence would have to be aligned with those other requests. So the

3 Prosecutor of Bosnia-Herzegovina would have to study an enormous amount of

4 material, over 3.000 exhibits and pieces of evidence in this trial.

5 The Prosecutor, furthermore, says that so far six cases have been

6 referred to the courts in Bosnia-Herzegovina. Your Honours, I have done

7 my best to check this out and to see how far those cases and those

8 individuals had to wait to go to trial in Bosnia-Herzegovina, and the

9 result is at least ten months. Ten months is the minimum, and the average

10 is between ten and 13 months.

11 So it is quite certain, Your Honours, that General Delic, too,

12 would have to wait for many months for his case to go to trial, and that

13 certainly is not in the interests of justice, Your Honours. And it would

14 have a vital effect on his health and on his family as well. He is an

15 individual who gave himself up to the Court. He asked that his trial --

16 he go to trial straight away. He did not wish to avoid responsibility,

17 quite the contrary. He wished this Tribunal to establish the facts as

18 soon as possible.

19 Next, Your Honour, the Prosecutor has claimed here that the

20 accused would have a fair trial in Bosnia-Herzegovina. Unfortunately,

21 Your Honour, I have gained the impression that the Prosecutor isn't very

22 concerned about this matter, whether the accused would be given a fair

23 trial in Bosnia-Herzegovina or not. It is true that the Criminal Codes of

24 Bosnia-Herzegovina do not have the death penalty and that six cases have

25 been referred there.

Page 211

1 However, Your Honours, I would like to request that you bear in

2 mind the fact that none of those six cases are cases of such a

3 high-ranking individual as this one, and it is difficult to see that the

4 accused with such a high level of command responsibility, particularly in

5 the political relationships which prevail in Bosnia-Herzegovina today,

6 would indeed be given a fair trial. If that court through its practice

7 has never had occasion to try a case of that nature.

8 The Prosecutor today mentioned two cases: Mandic and Klickovic.

9 Your Honours, I doubt that you know very much about those cases, but I

10 know a great deal about those cases, and what I do know is this: Those

11 cases have nothing to do on a factual level or legal level, particularly

12 not on a legal level, and serious legal issues are raised, as would be

13 those issues that we have here in the case before you.

14 So, Your Honours, please bear in mind the fact that the state

15 court of Bosnia-Herzegovina is overloaded. It has thousands of cases

16 pending trial, and they are seeking ways and means over the past year or

17 two to get through this enormous amount faster. They have organisational

18 problems. And let me just mention that just one of the six cases has been

19 led to completion, and the person who was convicted in that particular

20 case has escaped from prison.

21 JUDGE ORIE: Ms. Vidovic, may I stop you there? I think at the

22 beginning of this hearing, I told you what the Chamber would like to focus

23 on this afternoon, and that is not the full range of follow-up of cases

24 referred to Bosnia and Herzegovina. Mr. Mundis had said something about

25 it. You gave a few observations on it, but further details do not assist

Page 212

1 the Chamber.

2 Please proceed.

3 MS. VIDOVIC: [Interpretation] Thank you, Your Honour.

4 I will speak of the weight first of all. The Prosecution refers

5 to a relatively small number of victims, the limited time span, and

6 limited territory and locality encompassed in the indictment when it comes

7 to this case and the gravity of it. At the moment, we have 100 victims in

8 the indictment, of which 79 are killings. The rest are victims of torture

9 and rape, as alleged in the indictment.

10 Now, even if the Prosecution were to give up on the part of the

11 indictment which refers to the events in Maljine - and there are obviously

12 manipulations with that because no decision exists in that respect - we

13 would still have 74 victims, of which 55 were killings. And it would be

14 difficult to say that they are not serious, that these killings are not

15 serious, even when compared to other cases tried before this Tribunal.

16 They are indeed very serious accusations and counts.

17 Now, the Prosecution is trying to explain the fact that the case

18 is not a difficult one, in that it was limited in time to three short

19 periods, spanning two years. Your Honours, that is no argument. It is

20 not an argument which can hold water, because in a very short period of

21 time, very serious crimes can, of course, be committed, and we have

22 examples of cases of that kind being tried at the Tribunal already.

23 Then, he said that the indictment is limited geographically, so

24 both in terms of time and geography, none of which or neither of which are

25 factors on the basis of which one could weigh up the gravity and

Page 213

1 seriousness of the case, particularly not when it comes to somebody who

2 held a high ranking command responsibility of the Main Staff of the army

3 of Bosnia-Herzegovina, which is what the accused was.

4 Your Honours, our client stands accused of exerting effective

5 control over all the fighters, the Mujahedin, and all the other units

6 involved in the various events. So in actual terms, the indictment and

7 the pre-trial motions and the evidence produced by the Prosecution under

8 the 65 ter list show that the Prosecutor is studying the entire period

9 from the arrival of the Mujahedin in Bosnia, the alleged joint facts, in

10 order to control -- to confirm the BH army control over all these fighters

11 and effective control of General Delic over them.

12 The question of control over the Mujahedin is in itself a highly

13 complex question and cannot be viewed without investigating and looking

14 into their overall effects and actions; and for that reason, this case is

15 a highly complex case and will certainly have leverage in a series of

16 legal arguments, et cetera.

17 Now, as far as responsibility, General Delic, in military

18 hierarchy and political hierarchy, in the indictment period, occupied the

19 top most level of responsibility that is possible in state. He stands

20 accused that as the commander of the Main Staff of the BH army, and it is

21 alleged that he was a member of the Presidency as well, that he acted in

22 the way in which the indictment stands out.

23 Rule 11 bis demands that the Trial Chamber, in seeing whether the

24 conditions are met, have in view the Security Council resolution 1534 to

25 consider the gravity of crimes, and to accuse those positioned in the top

Page 214

1 level of hierarchies. And in view of the crimes committed, it is quite

2 certain that the Prosecutor had in mind both these factors when raising

3 the indictment, and they raised the indictment after the Security Council

4 resolution was passed in 2004.

5 Now suddenly, just prior to the trial, he suddenly does not

6 consider that the case is serious enough to be tried by this Court. The

7 resolution, I mentioned, demands that the Tribunal focus on cases of top

8 level responsibility and to refer to national courts medium level and low

9 level responsibility cases.

10 Your Honours, it was a pleasure for me to read that, although

11 General Delic did indeed hold a high rank, that his real role in the

12 crimes was minimal. That's what the Prosecutor wrote, and I was happy to

13 read that. However, let's see what the indictment says about the position

14 of General Delic and look at the counts and charges against him.

15 Paragraph 3, for example, says that General Delic was appointed

16 commander of the Main Staff of the BH army by the Presidency and that he

17 remained in that position for two and a half years. So the period in the

18 indictment is two and a half years occupying that post.

19 As the commander of the Main Staff, he was the top most ranking

20 officer subordinate only to the Presidency. He had general

21 responsibilities and responsible for the functioning of the army, the

22 planning of military affairs and in command of actions and operations,

23 which resulted in alleged crimes being committed; and that he ordered the

24 formation of the El Mujahid unit and the disbanding of the El Mujahid

25 units.

Page 215

1 Your Honour, quite simply, what the Prosecution sets out in his

2 motion, and what he has written down in his indictment, is not

3 consistent. And the Defence considers that, in the case of the accused

4 General Delic, these are all serious accusations, serious allegations, and

5 invoke top level responsibility, precisely the kind of responsibility for

6 which this Tribunal was set up in the first place, by the United Nations,

7 expounding their stands through the resolution I mentioned a moments ago,

8 and stated that only medium and lower level cases be referred to local

9 courts.

10 This reassertion was confirmed by the case law here in the

11 Tribunal, the Prosecutor versus Mitar Rasevic and Savo Todovic, for

12 example, when the Trial Chamber ruled wearing in mind the fact that the

13 International Tribunal should focus on trying top level individuals,

14 having committed top level crimes, and to transfer all other cases; that

15 is to say, of individuals who do not hold that top level responsibility,

16 that they should be referred to national jurisdictions.

17 And I'd like to invoke the Prosecutor versus Dragomir Milosevic,

18 when the Trial Chamber said that he was a commander for over a period of

19 one year, and that there was just one level of responsibility above him.

20 And the Trial Chamber went even further and ruled that the commander was

21 of a lower rank than is our own client, and that even that level of

22 responsibility demanded that this Tribunal try the case.

23 So, for all these reasons, Your Honour, I move that the

24 Prosecution's motion be rejected to have the case transferred pursuant to

25 Rule 11 bis.

Page 216

1 JUDGE ORIE: Thank you, Ms. Vidovic.

2 Before I give an opportunity for a final round, I would have a few

3 questions.

4 Mr. Mundis, Ms. Vidovic has referred to the decision in the

5 Dragomir Milosevic case, in which the level of responsibility next to the

6 role of an accused in the commission of the crimes has been dealt with;

7 and if I would draw your attention to the decision, the Lukic Referral

8 Decision, which is not a final decision yet, but in which it says that the

9 level of responsibility of an accused relates both to the role of the

10 accused in the commission of the alleged offences and to the position and

11 rank of the accused in the hierarchy; whereas, you have spent quite some

12 words on the role of the accused, however, not many words yet on the rank

13 of the accused in the hierarchy.

14 So I would first like to hear your response to what Ms. Vidovic

15 said in relation to Milosevic and what the Referral Bench has decided in

16 the Lukic referral case.

17 MR. MUNDIS: Thank you, Your Honour. It is beyond dispute that

18 throughout the indictment period, the accused Rasim Delic was the most

19 senior military commander in the army of the Republic of

20 Bosnia-Herzegovina; that is, there is no dispute about that. So, in

21 effect, he was the most senior military commander of the Armija during the

22 period covered by the indictment.

23 We focus our attention, Your Honours, on the level of

24 responsibility, in the sense of this being an Article 7(3) only case, and

25 there is a quantitative and qualitative difference between a military

Page 217

1 commander who is ordering crimes and a military commander who is failing

2 to prevent or failing to punish crimes; and in that respect, that's what

3 distinguishes this case from the Dragomir Milosevic case, in terms of the

4 issue of responsibility of the accused. But for the record, there is no

5 doubt that this accused was the most senior military commander in the

6 army, and the Prosecution is not trying to hide behind the fact that he,

7 or is in any way suggesting, that he wasn't the most senior military

8 commander.

9 But, again, when we are looking at a relatively small number of

10 crimes for which the accused is alleged to have failed to prevent or

11 failed to punish the perpetrators of those crimes, that's a very different

12 situation than someone such as Dragomir Milosevic and his role in the

13 alleged crimes in the city of Sarajevo during the indictment period in

14 that case.

15 JUDGE ORIE: Thank you. I am not that familiar with the history

16 of the Delic case. There was an indictment chronology. I had no

17 possibility to revisit all the earlier versions of the indictment, but do

18 I understand well, from annex A, that the scope of the indictment, as it

19 is now, is actually the same as it was in the very beginning, that is, in

20 December 2004? That's two and a half years ago.

21 MR. MUNDIS: That's correct.

22 JUDGE ORIE: So a lot has happened but not much has changed.

23 MR. MUNDIS: That is correct, Your Honour.

24 JUDGE ORIE: Yes. Now, you are asking the referral on the basis

25 of the operative indictment at this moment. In 2004, especially in

Page 218

1 December 2004, I think the referral discussion was already very vivid at

2 that time. Nevertheless, the Prosecution, at that time, indicting

3 Mr. Delic has chosen to bring him before the Tribunal on this indictment,

4 rather than under the rules-of-the-road ask for Prosecution in

5 Bosnia-Herzegovina. Do you have any comments on that? I mean, it's not

6 an old indictment of 1997, but it's a relatively recent indictment.

7 MR. MUNDIS: Your Honour, if I could just have a moments to

8 consult with the Prosecutor on that point?

9 JUDGE ORIE: Yes, please do so.

10 [Prosecution counsel confer]

11 MR. MUNDIS: Your Honours, at the time the accused Rasim Delic was

12 indicted, he fell within those cases which were among the last to be

13 indicted by the International Criminal Tribunal. The Prosecution, in

14 submitting the indictment in December 2004, because of the completion

15 strategy deadlines with respect to investigations and the indictment

16 process, had always been of the position that we would seek leave to amend

17 that indictment once remaining crime bases were consolidated and the

18 investigative material that we had compiled was examined.

19 So I will be very transparent with this Referral Bench that it had

20 always been our intention to seek leave to amend, which we did. Those

21 applications, as I've indicated, and as Judge Kwon is well aware, those

22 applications were unsuccessful. We had always believed that, given the

23 fact that the accused was not likely to be tried for a couple of years,

24 that the impact of those -- of that motion seeking leave to amend the

25 indictment would be granted, for the simple reason that it would have no

Page 219

1 impact upon the rites of the accused, because sufficient time would be

2 available for the Defence to adequately investigate and prepare for trial

3 based on those amendments.

4 That motion was unsuccessful, and that explains why the

5 indictment, notwithstanding the steps taken subsequently, remains

6 virtually the same as it was in December 2004, or as initially confirmed

7 by Judge Agius in early 2005. That's about all I can say about that. But

8 having confirmed with the Prosecutor, it had always been our intention to

9 amend the indictment, and we tried to do that without success.

10 JUDGE ORIE: Mr. Mundis, you told us that you do not want to

11 re-litigate the 73 bis decision of the Trial Chamber. At the same time,

12 implicitly, you do, because I think the Trial Chamber in its oral decision

13 has identified that on the list of witnesses, too many witnesses. I do

14 understand that to be an accumulation of witnesses beyond what is needed,

15 so, therefore, there are too many witnesses.

16 Now you say we can't do it with any less witnesses, which actually

17 comes down to a criticism of the finding of the Trial Chamber in that

18 respect. You're asking us to follow that criticism rather than to accept

19 the finding of the Trial Chamber, which says you can prove your case in

20 less time and with less witnesses.

21 MR. MUNDIS: Your Honour, to be very brief on this point, as I've

22 indicated earlier, we will be filing an urgent motion later this afternoon

23 to re-seize the Trial Chamber on that point. And what I want to say in

24 this respect is that due to the timing of the Trial Chamber's decision on

25 Monday and the anticipated start date of this trial, and the requirement

Page 220

1 that a referral motion come prior to the commencement of trial, we felt,

2 the Office of the Prosecutor felt, that we, under these circumstances, had

3 no choice but to seize the President of a request for referral to the

4 Referral Bench.

5 We will be revisiting that issue as I've indicated, but again the

6 Prosecution is not optimistic in that respect. I also want to add one

7 other point in response to something Mrs. Vidovic said, which I think is

8 extremely probative and relevant on this point. A few moments ago, in

9 explaining why this case should stay here, Mrs. Vidovic indicated the

10 complexity of the factual matters with respect to the Mujahedin. It is

11 precisely due to that complexity that the Prosecution submits, and will

12 submit to the Trial Chamber, that 55 witnesses and 170 hours is not

13 adequate for us to prove our case.

14 Cases involving 7(3) liability only are extremely problematic and

15 difficult to prove before this institution. They are very similar, in

16 many respects, to purely circumstantial cases, whereby large numbers of

17 witnesses and large numbers of documents are required to prove the

18 necessary elements with respect to effective control and notice,

19 particularly when it comes to issues involving failure to punish and

20 proving the negative of that failure.

21 In that respect, we would submit that, again, we will be seizing

22 the Trial Chamber. I understand the position that the Referral Bench

23 feels that it's in with respect to the Trial Chamber; but due to the

24 timing issues, we did not feel that we could wait until the morning,

25 before the commencement of the trial, to file the motion that's currently

Page 221

1 before you.

2 JUDGE ORIE: Yes. Mr. Mundis, I'm not blaming you for once having

3 decided that referral would be appropriate, that you then immediately

4 filed it, because otherwise you would have been late under Rule 11 bis.

5 Of course. The issue is whether referral is appropriate; then the timing

6 is, I would say, an inevitable consequence. You had to do it immediately,

7 there is no doubt about that.

8 Then, Ms. Vidovic, you listed quite a number of matters as

9 relevant. You said, "We have studied all the material. We have

10 prepared." Of course, I do see the psychological consequences. But that

11 work would still serve the Defence of Mr. Delic, if the case would be

12 referred, wouldn't it?

13 MS. VIDOVIC: [Interpretation] [No interpretation]

14 JUDGE ORIE: I don't receive any translation at this moment.

15 THE INTERPRETER: Can you hear the English channel now?

16 JUDGE ORIE: Yes, I can hear it. Could you please restart,

17 Ms. Vidovic?

18 MS. VIDOVIC: [Interpretation] Unfortunately, Your Honours, no,

19 because the state court of Bosnia-Herzegovina has its own procedure,

20 especially its own view of evidence and how evidence is treated. It's

21 quite different from here, absolutely, Your Honours. Your Honours, rest

22 assured, the accused would wait for a long time for his trial.

23 JUDGE ORIE: Yes. Is there any challenge, Mr. Mundis, in the ten

24 month as a minimal period assessment by Ms. Vidovic; that is, the time

25 from referral to the start of the trial?

Page 222

1 MR. MUNDIS: Your Honour, the Prosecution doesn't have at hand the

2 minimal amount of time available, but my colleague, Mr. Kontic, assured me

3 that's approximately, as we would say in the ballpark, in terms of the

4 amount of time. Before the Referral Bench rises, if I could just address

5 one --

6 JUDGE ORIE: I would like to give, for final submissions, five

7 minutes to each. If you would say, "I've no further questions, I'd now

8 make my final submissions," then the clock starts running now.

9 Mr. Mundis, five minutes.

10 MR. MUNDIS: Thank you, Your Honour. I don't intend to actually

11 take the full five minutes because I believe the issue has been adequately

12 briefed and orally addressed this afternoon, but I do want to, again,

13 stress the Prosecution position. And I fully understand and appreciate

14 that the Referral Bench has no ability to impact the potential start date

15 of the trial, but what we are concerned about is simply that this process

16 is being rushed.

17 We need to keep, our position is, we need to keep open the door to

18 ensure that justice is done in this case, whether it's done here or

19 whether it's done in Bosnia and Herzegovina. Our position is that this

20 case is now more appropriately -- would be more appropriately heard before

21 the court -- the state court of Bosnia and Herzegovina. But what we want

22 to ensure is that this trial does not commence before the Referral Bench

23 has had the full opportunity to consider the arguments of the parties and

24 of the Republic of Bosnia-Herzegovina. And, again, we will be seizing the

25 Trial Chamber of motions or of a motion concerning a number of issues that

Page 223

1 we've discussed here today.

2 We have nothing further to add and, again, we want to thank the

3 Referral Bench for making it possible to have this emergency urgent

4 hearing this afternoon on such short notice.

5 JUDGE ORIE: Ms. Vidovic, final submissions.

6 MR. ROBSON: Good afternoon, Your Honours. Mrs. Vidovic has asked

7 me to make come closing submissions, which I'll make briefly.

8 JUDGE ORIE: Yes. Please proceed, Mr. Robson.

9 MR. ROBSON: Your Honour, my submissions concern the level of

10 responsibility of the accused, which you've obviously got to take into

11 account. My first point is in looking at the seniority of General Delic,

12 I would reiterate that within Rule 11 bis, the Trial Chamber is required

13 to take consideration of the Security Council resolution 1534. Point 5 of

14 that resolution clearly states that the Tribunal should concentrate on the

15 most senior leaders. Point 6 of that resolution requires the Tribunal to

16 consider measures that look at the transfer of cases involving

17 intermediate and lower level rank accused to competent national

18 jurisdictions.

19 In this case, it's clear that General Delic, as the commander of

20 the Main Staff of the Bosnian army, was the most senior military commander

21 in Bosnia. He was responsible for around 250.000 men. He was a permanent

22 position in which he served until the year 2000. And, again, I would just

23 draw your attention to the jurisprudence of the Appeals Chamber in the

24 Rasevic and Todovic decision, that's the decision of the 4th of September

25 2006. And, again, the Appeals Chamber emphasised the importance of Trial

Page 224

1 Chambers concentrating on the Prosecution and trial of the most serious

2 leaders suspected of being responsible for crimes.

3 Moving from that point, Your Honour, I would turn to the issue of

4 General Delic's actual role in the commission of the alleged crimes. The

5 Prosecution has placed a lot of importance on that and what it would seem,

6 Your Honour, is that they are taking a rather contradictory position with

7 regard to that point. On the one hand, the Prosecution seem to be saying

8 that the Delic case is a relatively small case, that because he is only

9 charged with responsibility under Article 7(3) and because the Trial

10 Chambers in the past have routinely handed down low sentences for Article

11 7(3) command responsibility cases, this is an indication that this is a

12 less grave case and, therefore, you can send it or refer it back to

13 Bosnia.

14 We've just heard a moment ago from Mr. Mundis, and he has

15 explained to us about the problems involved in Article 7(3) cases. And,

16 again, he's emphasised the particular dilemmas involved in this case.

17 We've heard that the case will involve the allegation that General Delic

18 had exercised effective control over the Mujahedin. Mr. Mundis said this

19 was an extremely problematic matter. Your Honours, my submission would

20 be, then, this is an excellent reason to keep the matter here before this

21 Tribunal, rather than referring it back to Bosnia.

22 So, Your Honours, those are my final submissions.

23 JUDGE ORIE: Thank you, Mr. Robson.

24 [Trial Chamber confers]

25 JUDGE ORIE: The Chamber will consider how to proceed. It has not

Page 225

1 decided how to proceed. So, therefore, it could be that the Chamber would

2 come back to the parties and ask for further oral or written submissions,

3 but it's also possible that the Chamber will not do that. Therefore, we

4 stand adjourned sine die.

5 --- Whereupon the hearing adjourned at 2.33 p.m.