1 Thursday, 8 May 2003

2 [Closing Statement Defence]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.04 a.m.

6 JUDGE ORIE: Good morning to everyone. Madam Registrar, would you

7 please call the case.

8 THE REGISTRAR: Case Number IT-98-29-T, the Prosecutor versus

9 Stanislav Galic.

10 JUDGE ORIE: Thank you, Madam Registrar.

11 Ms. Pilipovic, is the Defence ready to continue its --

12 MS. PILIPOVIC: [Interpretation] Yes, Your Honour. Good morning to

13 everyone.

14 Yesterday, by the end of the hearing, we broke off when the

15 Defence was speaking, analysing as part of the final closing argument

16 whether there were any proof regarding General Galic's subordinates

17 targeted civilians. Now, the Prosecutor offered the testimony of

18 Witnesses Ashton, Henneberry, Carswell, Gardemeister. When we were

19 assessing these testimonies regarding the allegations they made during

20 their testimony, the Defence would like to point out that the testimony

21 going in this direction were insufficient and did not give any grounds

22 that they should be accepted. Regarding the credibility of the testimony

23 of Henneberry, Carswell, and Gardemeister, the ones that we have

24 mentioned. Particularly when we are speaking about the testimony of

25 Witness Ashton, the Defence would like to point to some details that will

1 bring into question the credibility of this witness as well regarding this

2 matter.

3 In his closing argument, the Prosecutor offered the claim that

4 this witness is an experienced journalist and later on as a humanitarian

5 worker knew how to use photography, and we were also shown a series of

6 photographs. Carefully analysing the photographs, we can doubt the

7 authenticity of this instance filmed if this witness had really been

8 present at some events when civilians were targeted, then he probably

9 would have filmed, he would have recorded this event. However, the

10 witness has no such photographs.

11 We claim that the testimony regarding certain circumstances

12 Witness Ashton is in the realm fantasy. We will give an example of his

13 testimony when he said the Serb fighters had placed, mounted an

14 astronomical telescope on a cannon. Now every cannon as a field gun has

15 its sight which is constructed in such a way to make it possible to

16 successfully fire to the final range, and there is no need to place on it

17 an astronomical telescope. Now, these are just stories, fantastical

18 stories that Witness Ashton told us, and one of the stories was the story

19 of the iron cross regarding which Witness Ashton told us was that this was

20 a pattern, the way the artillery fired, the Serb artillery fired. None of

21 the witnesses who were heard before this Trial Chamber confirmed this,

22 corroborated this testimony.

23 Nor was it mentioned by anyone else. And the Defence believes

24 that if the testimony of Witness Ashton as part of the media propaganda

25 that was waged against the Serbs, then this witness was part of it. So

1 the Defence believes that the evidence offered by the Prosecution did not

2 prove that anybody who was subordinate to General Galic targeted

3 civilians.

4 The Prosecution regarding the command responsibility of General

5 Galic wishes to refer to a good coordination of all the operations of SRK

6 units, but is not referring to evidence that would prove that there was

7 deliberate targeting of civilians by SRK units. This matter regarding

8 good coordination is also to do with the example that illustrates -- that

9 is illustrated by example of the barrage fire, the screened fire, which

10 allegedly took place Christmas Eve 1992 and also at -- on 7th of January,

11 1993, and 14th of January, at midnight, 1993. And the Prosecution is

12 referring to testimony of Witness Tucker.

13 Now, the Defence claims that this has been countered by the

14 Defence Witness DP35. And at the request of the Trial Chamber, the

15 Defence has shown the annex 6(A) of the UN expert report for the question,

16 and this clearly shows that there was no firing at all, particularly no

17 barrage or screened fire, on those dates. This evidence confirmed that in

18 none of the two days, there was no screened fire in the city, not even

19 during the days when the holidays really are on -- well, not during the

20 days that are erroneously quoted by the Prosecution, like the 14th of

21 January.

22 Now, regarding the testimony of Witnesses Cutler, Harding, and

23 Tucker, regarding the shooting that allegedly took place orthodox new

24 year, we believe that they are mutually contradictory and contrary to

25 evidence shown; they cannot be accepted. All other allegations by the

1 Prosecution that would point to the command responsibility from paragraphs

2 140 to 164 of the final brief are irrelevant, and we would like to stress

3 that they are just pure theory. There is no evidence there.

4 The Prosecution [as interpreted] will also counter the allegations

5 of the Prosecution claim in paragraph 158 regarding the testimony of

6 Colonel Cutler who spoke of alleged threats of Colonel Marticic that

7 Sarajevo will be fired at if the Bosnians do not stop firing at Ilidza.

8 Ilidza is a part of the Sarajevo battlefield. And according to the

9 Defence, these so-called threats are just usual in the domain of

10 negotiations between the warring parties with a wish to achieve an

11 objective. What's important is that Colonel Marticic didn't say that

12 civilians would be targeted. The Prosecution in paragraphs 165 to 222 of

13 its final brief, the Prosecution is also relying on and also in the

14 introductory part of its closing argument, the Prosecution would like the

15 Trial Chamber to believe that there is an alleged confession of

16 General Galic that civilians were deliberately targeted, and that there

17 were threats that existed and that they could be grounds for concluding

18 that such attacks existed.

19 Now, we would like to remind -- to look at the testimony of

20 Henneberry, Razek, Mole, and also the witness -- another witness who was

21 testifying during private session. I do not wish to utter his initials.

22 I would like to ask you if we could go into private session,

23 please.

24 JUDGE ORIE: Yes, we turn into private session.

25 [Private session]

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18 [Open session]

19 JUDGE ORIE: It's confirmed on my screen. Please proceed.

20 MS. PILIPOVIC: [Interpretation] When we are speaking about the

21 threats, and this is in paragraph 183 of the final Prosecution brief, that

22 the -- General Galic allegedly addressed to Witness Razek, and this is one

23 claim that Prosecution makes that General Galic had confessed and that is

24 regarding the testimony of General Razek, who said that -- what was said

25 is that the other side continues to shoot at his units or against his

1 units. He will continue to attack them. I will make them live difficult

2 times. This is allegedly what General Galic told General Razek. The

3 Defence would like to state here that this is regarding the legitimate

4 target by military action which will be undertaken against the forces that

5 are attacking his army, his troops. In such a threat as allegedly

6 General Razek heard, that was addressed to the Muslim army, civilians are

7 not mentioned at all.

8 Also, we would like to stress that the threats that were allegedly

9 made by a general superior to General Galic were not addressed to

10 civilians. The fact that one tram had been hit, in the Defence's opinion,

11 cannot be understood to mean -- to designate deliberate targeting

12 civilians in tramways. The testimony of Witnesses Ashton and Henneberry

13 regarding the contents of their discussions with Major Indic were counted

14 by the testimony of Witness Indic who told us after what the Prosecutor

15 told him what Witnesses Ashton and Henneberry told him, he said this was

16 all lies. So what the Prosecution says that there is evidence regarding

17 the confession of General Galic and his superior, his superiors and

18 subordinates, that they deliberately targeted civilians, this has not been

19 proven.

20 Such allegedly -- alleged claims that the witnesses made, they

21 cannot be understood to be a confession. Bearing in mind the testimony of

22 all the witnesses, as well as UN observers and UNPROFOR members, the

23 Defence believes that General Galic was a real officer and that such words

24 or threats he certainly would not have addressed to anyone because this is

25 something that he finds alien as a man and as an officer.

1 The Defence, before allowing my co-counsel to continue, the

2 Defence would like to give its view on the sentence. In paragraph 778 of

3 its final trial brief, the Prosecution suggests that the degree of

4 criminal responsibility, if General Galic would be convicted, should be

5 such that it takes into account the number of wounded and killed civilians

6 as well as the number of direct victims of the campaign and the

7 psychological sufferings inflicted upon them as a result of the terror,

8 and the physical effects that this campaign had, that such acts had on the

9 ordinary course of the victims of the civilians during the relevant

10 period, in the ordinary course of their life. The Prosecution has not

11 proved their position about the significant number of victims in their

12 suggestions. We claim that it is false to claim, as the Prosecution says,

13 that General Galic supported the campaign. Everything points to the fact

14 that General Galic respected the provisions of the Geneva Conventions,

15 that he forbade civilians to be taken as targets, and there is no evidence

16 that would prove that he implemented any sort of a campaign which targeted

17 civilians.

18 The claim the Prosecution made in paragraph 781 is also incorrect,

19 the claim according to which these were continued crimes about which

20 General Galic received daily information of the number of victims ran into

21 the hundreds of thousands, the number of victims as a result of terror.

22 And we think -- it is our opinion that the number of victims was far lower

23 given the urban context of the conflict if compared to the victims in

24 other battlefields that one has witnessed in the course of the history.

25 When the Prosecution requires that a term of life imprisonment be met out,

1 we think that the Prosecution hasn't seriously analysed the events

2 concerning Sarajevo. They neglected the facts presented according to

3 which the Muslims provoked and carried out attacks. That very fact would

4 be sufficient to consider that the criminal responsibility -- the degree

5 of criminal responsibility of General Galic, if he should be considered to

6 be criminally responsible, responsibility at all, this degree should be

7 considered to be the minimum degree in terms of his command responsibility

8 within the hierarchy. Therefore, in the opinion of the Defence, a

9 sentence could be given to General Galic only if one faced the difference

10 between objective and individual responsibility as prescribed in the

11 statute. And only if one considered that General Galic was objectively

12 responsible in his capacity as corps commander, because no other form of

13 criminal and legal responsibility, whether according to the provisions of

14 Article 7(1) and 7(3) -- according to both these provisions of the

15 Statute -- according to both these Articles, his responsibility has not

16 been proven.

17 So the Defence stands by its position that General Galic should be

18 declared innocent on all counts in the indictment. The Defence also

19 wanted to turn very briefly to the Prosecution's introductory remarks with

20 regard to sniping incidents, although we would like to point out that the

21 Defence has analysed these items in detail in its final trial brief. And

22 given the restrictions of time, I have already pointed out that my

23 colleague, Mr. Piletta-Zanin, shall continue with his presentation of this

24 oral final trial brief.

25 JUDGE ORIE: Mr. Piletta-Zanin, you may proceed.

1 MR. PILETTA-ZANIN: [Interpretation] Thank you very much.

2 JUDGE ORIE: [Previous interpretation continues] ... More precise

3 than it was yesterday, although my guess was quite close to what Madam

4 Registrar tells me, that is up until yesterday, the Defence took two hours

5 and 30 minutes, so at this very moment, it's two hours and 50 minutes

6 spent by the Defence. That means that there's remaining two hours and 10

7 minutes. Please proceed.

8 MR. PILETTA-ZANIN: [Interpretation] Thank you very much,

9 Mr. President.

10 First of all, I would like to greet everyone present here in the

11 courtroom, and I apologise because my delivery will undoubtedly be

12 somewhat different than usual, and the tone of my voice will certainly be

13 a little different. So perhaps I will ask you to allow me to have a

14 pause, to go and take a little medicine outside. Having said that,

15 Mr. President, what I wanted to say first of all concerns figures. And

16 since we are talking about figures, we will start first of all with

17 Mrs. Tabeau. I would like to tell the registrar first of all who has

18 helped us in an admirable way throughout these proceedings, I would like

19 to ask Madam Registrar to prepare the Tabeau report, and we will show -

20 not right now but in a minute - page A416, page 98. I have already made a

21 copy to facilitate the task for you. Obviously, if you want the original,

22 I'll understand that. But we have copies available if necessary.

23 This document should be placed on the ELMO to enable everyone to

24 see it.

25 Mr. President, figures are figures. And the first thing that

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1 we'll be struck by the figures when we take into consideration the brief

2 of the Prosecution. In fact, nothing, almost nothing, is said about the

3 so-called Tabeau report, the expert report which nevertheless comes

4 directly from the Prosecution. But from the very beginning of its case,

5 the Prosecution did not cease to say that they wanted to demonstrate

6 mathematically by using figures, they wanted to prove the reality of the

7 facts that they alleged. And in these initial documents in the indictment

8 and in all its briefs that follow the indictment. Very well,

9 Mr. President, Your Honours, what is the reality that we are speaking of?

10 We will have ample opportunity to return to the figures in the Tabeau

11 report. But the first thing that we have to point out is that the

12 Prosecution never turns -- almost never turns to these -- to its own

13 figures, and for an obvious reason. And we want to show that their own

14 figures prove the contrary of what the Prosecution wanted to prove.

15 Just one example in order to provide a framework for the hearing,

16 this concerns the existence or the lack of existence proven by the

17 figures. One should remind everyone, everyone knows this, "afirmanti non

18 incubit probatio." And is it incumbent upon the Prosecution to prove

19 this, not to the Defence. And its a contradiction, and not the only one,

20 to see that it is the Defence that is going to provide this proof. On the

21 24th of July, table 3 and 4 in the Tabeau report, these figures haven't

22 been accepted by the Defence. But since they come from the Prosecution,

23 what better proof could one have than the proof that your enemy offers

24 you.

25 Very well, the figures are quite clear and almost transparent.

1 For the initial period of the conflict, the first few months from April to

2 September that don't concern the accused, that's a period during which the

3 majority of the victims -- we had the majority of the victims. Do we

4 have a problem?

5 JUDGE ORIE: You asked some pages to be put on the ELMO as far as

6 I remember, or am I wrong?

7 MR. PILETTA-ZANIN: [Interpretation] I only asked for one page,

8 Mr. President. I didn't ask for it to be placed on the ELMO. That's why,

9 Mr. President. Is it --

10 JUDGE ORIE: I'm sorry, there's a misunderstanding.

11 MR. PILETTA-ZANIN: [Interpretation] Thank you, though,

12 Mr. President, for your assistance. I'll carry on. I apologise. You'll

13 see it in a minute. I'll inform you of when this will be necessary.

14 Thank you.

15 As the very figures prove -- [In English] It's not necessary to

16 have it now. Thank you so much. Thank you.

17 JUDGE ORIE: It was my mistake, Madam Usher.

18 MR. PILETTA-ZANIN: [Interpretation] I'll carry on. These figures,

19 Mr. President, Your Honours, prove that during the first five months, from

20 April to September 1992 - 1992, as one says - we have something -- we have

21 7.085 wounded. That's about 1.400 wounded a month. And as against the

22 successive periods, 12.900 would be the figure. That would be for the 23

23 months of the indictment. We would have 560 cases more or less. So if

24 you have a look at the figures, one can see that during the period during

25 which General Galic was in command, there were a lot of victims [as

1 interpreted]. The proportion of victims was quite great. My question is

2 as follows: For someone who has been accused of having amplified a

3 campaign, shouldn't one admit that the figures are really strangely in his

4 favour? The truth is that these figures prove that since General Galic

5 assumed command, the number of victims obviously to a large extent

6 diminished, and it is quite certain that there still were victims. But

7 the Defence claims, and we will prove this, that to the extent that one

8 can admit this and unfortunately to something that we have to admit, these

9 figures are to a large extent as the result of circumstances of war

10 conducted in a theatre of war which is an urban theatre of war, and I

11 would like to underline this. It occurred in surroundings where it is

12 almost impossible to avoid what one calls in technical terms

13 scientifically collateral damage.

14 These figures prove other exculpatory matters. One of the first

15 things that the Defence has always pointed out concerns snipers. What is

16 a sniper? The Prosecution's case is to say anyone bearing infantry

17 weapons, anyone who can fire, who can hit a victim, whether it's the sower

18 of death or a simple soldier's rifle, this doesn't matter. The result is

19 the same; you have someone who is killed or wounded. That is a sniper.

20 But in Tabeau's report, there is an internal contradiction which we can't

21 resolve. When we have a look at the tables, you see the mention of the

22 word "shelling" and then also the word "sniping," and then you have other

23 firearms and other categories. And our question is: Why make a different

24 categorisation? Why do you have sniping on the one side and other

25 firearms on the other hand if we shouldn't do that and put it all into the

1 same basket? Because when you have a look at these figures and you see

2 253 snipers, I wouldn't say only with regard to other things, but I don't

3 want to be misunderstood if I say "only," this should be taken in relative

4 terms. 253 sniping cases, and about 100, 101, 102 other arms. It doesn't

5 matter. As long as we don't know what the methodology is used to

6 distinguish snipers in the strict sense from other arms, what can show in

7 terms of evidence, in terms of the presumption of evidence -- presumption

8 of innocence that we shall all respect here? How is one to know that one

9 is is not mistaken and that there weren't 253 cases of other arms and a

10 hundred cases of sniper arms? This is a pure hypothesis. But how can it

11 be proved that I should reject this?

12 These are the documents that are the origin -- that come from the

13 Prosecution and not from the Defence, never from the Defence. So why

14 mention these other firearms if it was never necessary allegedly to do

15 so? As the Prosecution says nothing about this, my question is: Why such

16 silence, such persistent silence on the part of the Prosecution? If not

17 because that is one of the areas, and that is where the problem appears or

18 where things aren't resolved for the Prosecution.

19 I see, Mr. President, that I should be listening to another

20 channel because contrary to my habit, well now I can check -- I can verify

21 what is happening elsewhere. As far as justice is concerned,

22 Mr. President, the question is quite simple. If this distinction was made

23 by the Prosecution itself, how am I to explain the methodological

24 procedure, the methodological basis for this distinction was not really

25 even presented by the Prosecution? There is something that is illogical,

1 completely illogical there. And the Defence, to the extent that this is

2 possible, is going to attempt and hopes that it will succeed in

3 constructing its final examination of these facts and developing its final

4 examination on the basis of only two items. On the one hand, on the basis

5 of logic; and on the other hand, on the basis of common sense and truth.

6 To this effect, the Defence has provided elements as mentioned

7 that are quite disturbing with regard to sniping cases. The Defence has

8 drawn the attention of everyone and of the Trial Chamber to the number far

9 too great of these documents of a medical nature where when faced with a

10 sniping incident or other incidents, I don't know how I should describe

11 them, we can see the word "unknown." The site "unknown." My question is

12 as follows: Can one logically admit, even if the situation concerned is a

13 wartime situation, and we can imagine how difficult it would be and how

14 traumatising at moments to work in such a situation, how can we explain

15 that so many cases of wounded people, dead people, are referred to as

16 having occurred in unknown places? I'm trying to imagine a body, a

17 lifeless body, and of course somebody has to take it somewhere, take it

18 somewhere, perhaps a mortuary. How can a person not know where they found

19 that dead person? Imagine a wounded, an injured person. If that person

20 is going to the hospital, that person knows where he had been hit, and if

21 he's not going by himself, then he was driven there and driven by

22 somebody. If that somebody -- wouldn't that somebody know where he had

23 assisted this wounded?

24 So now so many unknowns, so many unknowns. Of course, so many

25 unknown female persons. For the English booth, for the English booth,

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1 unknown.

2 For the Defence, the answer is clear, is that the facts were not

3 disclosed. They could not be disclosed. They could not be ignored. On

4 this point, the Defence believes that they have proven an important fact.

5 This is the existence of certain manipulation which begins with figures

6 and that we would like to see concluded with a set conviction. But this

7 is the same manipulation -- I apologise for using this term. We're

8 speaking of the same universe. And regarding this matter, the Defence

9 would like to stress this is not a coincidence that although the

10 Prosecution did have the means, refused to present the victims by clearly

11 indicating geographically locations of incidents, although they could have

12 done it. What about if this map, Mr. President, what if this map had

13 allowed us to see how close or much closer these locations could have been

14 to the front lines than we would imagine? I think this could have been

15 done for all the 150 incidents. So this, for the Defence, would have been

16 very important to demonstrate the reality of collateral damages, of stray

17 bullets, of ricochets. Why they didn't do this? We could see that

18 Prosecution was extremely competent to produce technical items, maps with

19 details, photographs that allow us to see the world around us, everything

20 in this courtroom. But this simple calculation, why not having done it

21 for me? I'm asking this question. I'm asking these questions that nobody

22 can answer.

23 Now, let's look at the thesis of the Prosecution, and particularly

24 regarding the sower of death. One of the main thesis of the Prosecution

25 is to say that Serbs were barbarians, that's not what they actually said

1 but it is to this effect. They were such barbarians that they were using

2 a horrifying engine, machine, device that they were able to terrorise the

3 people. So terrorised by it, they called it the sower of death. We know

4 that that is an M84, and we have heard testimonies. And of course,

5 sometimes some peculiar witnesses, but we heard that Serb held high

6 points, that they had these sowers of death, that they were extremely

7 accurate, extremely rapid, that they were causing great damage, that they

8 had a huge force of impact, that they had binoculars, at any moment they

9 were able to see anybody, child, woman, old person, target them, and open

10 fire. And -- but I have the figures of the Prosecution. And I would like

11 to ask you to look at A38 table and A39 of the Tabeau report. We can look

12 at the column 84, that is, M84 column, the famous sower of death and the

13 like, says the text, and look at the number of civilian victims. But

14 before that, let's look at the overall number of victims that was caused

15 by the sower of death. 11 victims. That is almost on my two hands,

16 almost on my two hands.

17 So on one side, there are nine men; and on the other side, two

18 women. But if I look at civilian populations, I can also do it on my two

19 hands, but I have to do it with my fist clenched. In the clear figures of

20 the Prosecution, there isn't a single civilian victim that would have been

21 caused that was produced in tables A38, A39, victim that would have been

22 caused by the famous sower of death. This is what the evidence of the

23 Prosecution showed, so these are barbarians, these Serbs who were

24 targeting from the hills around the city, they never caused a civilian

25 victim. Thanks to the Prosecution figures, the Defence has proven that if

1 the Serbs had had these weapons and if they were able to see the city and

2 the civilian inhabitants, and if they had the ability to destroy them.

3 Now if they haven't done that, that means that they respected two things:

4 Conventions and, more specifically, the famous principle of distinction.

5 Now, what I wish to say here, Mr. President, and I spoke about

6 manipulation earlier, and I'm going to say it because I believe that in

7 Sarajevo, they used to be Emil Zolja Street, but there were also Zoljas,

8 that's true, but there was Emil Zolja Street, and as Emil Zolja said, what

9 we wish to say is: "I accuse," referring to the manifesto. I accuse. We

10 cannot, when we look at the figures that have their own truth, and when we

11 are looking at one's own figures, we cannot come and claim the opposite of

12 what the figures show. You said, Mr. Ierace, that the closing argument

13 has to be based on the elements, and that is what the Defence is trying to

14 do, to confirm through the testimonies that the Serbs would have killed

15 civilians by their weapons. But when we look at the figures that are

16 showing the contrary, that is to say the at least surprising. In other

17 words, Mr. President and Your Honours, how as part of the campaign, and I

18 am saying the word "campaign," can you imagine a single instance of this

19 situation, and the answer to this question, the Defence believes that this

20 is simple logic which is self-imposing. It is so self-evident that if the

21 Serbs had been in a position to do it and if they did not do it, it's

22 because, and this includes General Galic, they did not wish to do this.

23 Mr. President, I now would like to go on to another subject. We

24 will come back to Tabeau figures. But let's look at the contradictions.

25 One of the first contradictions is that we had two briefs of the

1 Prosecution, one electronic and one hard copy. And I was only able to

2 work on the electronic version. I've already informed, but I'm informing

3 the registrar now, and in order to proceed logically and to see the

4 Prosecution prepared its brief, is that I am going through the numbering

5 which is a little confusing. I will cite the number that I have, the

6 number of the page, and also the number at the end of the page which is

7 right next to this number, of the footnote, so I hope that we will be able

8 to find our bearings among these three elements. It will be a little

9 longer, but again, the Defence is trying to be logical with the elements

10 that it was given.

11 As a part of the time that we were given, we cannot look at all of

12 the contradictions that are included in the brief of the Prosecution, but

13 we can only look at some of the most important ones. One of the first

14 contradictions that struck us was that the -- this case, and I'm not only

15 speaking about the brief but the Prosecution's case can be characterised

16 by an absence. There is something missing in this case, and that is

17 proof. There is something that is missing. There is a missing factor,

18 and that is proof. There isn't a single document that could establish the

19 beginning of proof.

20 English booth, that's not quite what I said, but it doesn't

21 matter.

22 There is not even a shadow of the proof --

23 JUDGE ORIE: [Previous interpretation continues] ... As far as the

24 translation is concerned, would you please address me.

25 MR. PILETTA-ZANIN: [Interpretation] Yes, of course. Of course,

1 Mr. President.

2 There isn't a single document, single document that would

3 demonstrate the reality of a written proof, a written order, illicit order

4 given by General Galic to any of his subordinates. The position of the

5 Prosecution on this point is very particular. They say they want a life

6 sentence, not because they have proved, they have given such and such an

7 element as it was the case in other trials here that we know very well.

8 But knowing that this would be proven, why is that? And this missing

9 factor, regarding this missing factor, the Prosecution said that they were

10 not able to have all the elements of proof. Very well. But what does

11 that mean? How come that the other elements that they don't have, how

12 come they wouldn't have proved the innocence of General Galic, but they

13 would have proven his guilt? We can see that there is no logic here. And

14 that is the reason why the Prosecution has founded everything on the

15 famous document of the 14th of May, 1992, document that was submitted as

16 part of the Donia report. It is the only written document, the sole

17 written document regarding which the Prosecution refer to. But the

18 Prosecution keeps forgetting a detail. A tiny detail, three times

19 nothing, and it's very important. From the very start of the war, the

20 position of the man that you're judging today at the time he was Colonel

21 Galic, he was not a general yet. Now, he did not say, "Destroy Sarajevo";

22 he did not say, "Eliminate all inhabitants"; he did not say, "Open fire,"

23 but "Defend without war." The text is very clear in Serbian; "bez da

24 ret," without war. This is never referred to in favour of General Galic.

25 Again, this is silence, which is inexplicable and unexplained.

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1 Now, the exhibit that is in the Prosecution case, the Prosecution

2 will try to found its case on something else. On the testimony of

3 Mr. Henneberry, he is usually called "Young Captain Henneberry." And the

4 Prosecution relied heavily on this testimony. And this witness would have

5 been the only one to assist them in their case. And so, the Prosecution

6 has done a peculiar thing. In order to support this thesis, they will, in

7 extremis, by using another witness, that is Witness Cutler, here before

8 this Trial Chamber, they will produce a phenomenon that is never seen

9 anywhere, it is very peculiar, it demands to be mentioned, and this is a

10 spontaneous regeneration of memory. After some ten years, ten years from

11 when the events happened, we can see then suddenly a witness appears,

12 suddenly, spontaneously. Although he had been questioned by the

13 Prosecution for a long time, suddenly Henneberry, at the time Captain, now

14 Major, they had never thought it useful at the time to inform his

15 superiors or to leave any kind of written trace ever regarding this. And

16 suddenly, here is this witness that arrives, a kind of Phoenix of

17 evidence, he comes, he recovers his memory. And of course, he has very

18 good reason, as you are able to see, this witness had the opportunity, had

19 the opportunity, he had, in spite of the Victims and Witness Unit and all

20 the restrictions, he was able to discuss all kinds of things with the

21 other witness, the other witness being Henneberry.

22 How can we believe particularly in The Hague that they were able

23 to speak about good weather and nothing else? Although they were staying

24 at the same hotel and that they were recalling -- they were walking up

25 memory lane. So these two testimonies were so corrupted by this mechanism

1 that they have no credibility. There is no quarantine for the witnesses

2 who go over these restrictions, and they should be excluded.

3 And now, stricto senso, I will now go to the brief of the

4 Prosecution, that is, 64, page 23, electronic page, and the footnote

5 nearby is 86. The Prosecution quotes General Rose to indicate that the

6 total exclusion zone would have allowed the Serbs to redeploy their

7 weapons. And I'm quoting here, I will do it in the language of the

8 transcript. "To redeploy the forces to other places such as Bihac where

9 they were able to intensify the fighting.." Transcript page 10.265. So

10 why? What is the reason to mention these facts if we suppose it was

11 proven, because no one charges General Galic with anyone concerning Bihac

12 Gorazde. Why not mention Srebrenica and other places, too? If not to

13 create confusion in people's minds, and to say if you want to be in

14 Sarajevo -- perhaps if you want to be good in Sarajevo, okay. If you want

15 to be bad in Bihac, let's punish you because perhaps you were a bad

16 general in Bihac or elsewhere. In other words, this confusion is not

17 acceptable at this level. Cases must be dealt with by specialists. There

18 must not be any corruption of the case, no confusion. To affirm this

19 shows how little one pays attention to the rules that we should all pay

20 attention to, the rules that should dominate our work.

21 And likewise for point 67 that follows. The Prosecution will say,

22 okay, the anti-sniping agreement, you didn't sign it. We take note of

23 that. But the Prosecution forgets, and they should be aware of this fact,

24 the person who prepared that agreement, the person who made it possible to

25 be established is General Galic. Why forget this fact? And its truth has

1 been established.

2 66, 24, 61, another contradiction. It's one of these impossible

3 equations without a possible solution as suggested by the Prosecution.

4 The campaign Sovo Losa [phoen] campaign, was its objective to destroy the

5 morale of the combatants by reminding them that while they were fighting,

6 their families were in greater danger than they were themselves. And that

7 same affirmation appears in page 80, 29. Mr. President, the same

8 exercise, the same logic, the same truth. The figures produced by the

9 Prosecution, and I'm referring to Tabeau. These figures show the

10 following, and I'll quote the report in English: "The vast majority of

11 those killed or wounded were men, 3.374 killed. Most of them were of

12 active military age, 18, 16, 69 years, and were soldiers." Tabeau, 5, and

13 there are figures to support it. And our question is as follows: What is

14 this campaign directed against civilians that is going to produce, and I

15 will quote the Prosecution -- that is going to result in mainly military

16 losses where the victims were mostly men of fighting age, not women and

17 children, and the victims were not only men who were of an age to fight;

18 they were soldiers, too. And for once, I'm in agreement with the

19 Prosecution when they say that logic should govern our discourse.

20 And this can only mean one thing, Mr. President: First of all, if

21 in the -- if the majority of victims were soldiers, people -- men who were

22 of an age to fight, and this is quite obvious, that's why they were

23 targeted, that's quite obvious. So how can I -- how can the victims be

24 men who are of an age to fight if I am targeting civilians? And secondly,

25 the minority, that is to say, other parts of the population were not

1 targeted on a major scale. That's also logical. And the third logical

2 matter I want to mention, this vast minority, although they were far more

3 numerous as far as the terms are concerned, with respect to the soldiers

4 in Sarajevo weren't in greater danger. They were not in such a great

5 danger, and this syllogism, Your Honours, is followed by a fourth issue.

6 We have always followed logic, and we have always put things in

7 perspective. It's well known that in modern wars, it is usually civilians

8 who suffer the most. In Sarajevo, the case was reversed. But we know

9 that civilians don't have the same means to protect themselves as the

10 soldiers who have bunkers, flak jackets, helmets, weapons, et cetera,

11 experience. In order to be able to inflict casualties among soldiers,

12 it's necessary to fire more often than it would be necessary if you were

13 firing against people who are not soldiers. I am talking about the

14 possibility of firing areas. This is to say that these figures must be

15 put in perspective. They must be in favour of the General, of the

16 accused. If a shell falls in a civilian zone, it will necessarily --

17 there will necessarily be civilian victims. I'm talking about collateral

18 damage. If the shell hits soldiers who are protected, it is not

19 necessarily that there will be victims, at least not the same number of

20 victims. You need to use perhaps ten times more shells when firing at

21 soldiers; if they are protected, perhaps 20 times that number of shells in

22 order to obtain the same results.

23 Yet again, this shows that in order to cause such a large number

24 of military victims, then the vast majority of shots would have to be

25 directed against the soldiers and not against civilians. That is quite

1 obvious. This obvious fact has to be underlined once again. It's simply

2 mathematics. One should point out that there's one soldier for eight

3 civilians within the PAPA zone. That was the ratio of soldiers to

4 civilians which was present in the so-called PAPA Sarajevo zone. So if we

5 have, and this is obviously according to the Prosecution itself, the vast

6 majority of civilians who have not been affected, who have not been hit,

7 and we have this vast majority of soldiers in a situation where they are

8 in the minority and the relation is 1 to 8, the figures speak for

9 themselves. They are even more clear.

10 Mr. President, the efforts one has made in this case to affirm

11 things that are not true, and my question is: Why was it necessary to

12 arm-wrestle in order to arrive at what one might consider truth? And why

13 not see the reality of the figures? Why not want to discuss them, whereas

14 they were provided to us? The Defence has had the opportunity of saying

15 this. You can't kill the truth. You can stifle it, but one day or

16 another, the truth will out. One day, it will be necessary to accept that

17 there were, for example, campaigns, real campaigns in Dresden, 40.000 dead

18 in three or four days. The Defence has said this. The Defence has also

19 referred to Swinmund, 20.000 dead in a few hours. And the Defence would

20 now like to ask, can these things be compared? Can this be prepared to

21 the 253 sniping cases referred to by the Prosecution that have not been

22 proven?

23 With regard to these 253 sniping cases that have not been proven,

24 the Prosecution wanted to establish the existence of a campaign -- of a

25 campaign to terrorise the civilian population. The Defence claims that

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1 they are very far from having proven this. But if one really examines the

2 figures, matters, the debate would have been a lot clearer and truth would

3 have been determined for the sake of justice. And another contradiction,

4 I'll mention page 17, 26, 99, the Prosecution in order to better support

5 its position tells us the following: In fact, why target the interior of

6 the city since everything happened at the lines, and the fact that you

7 targeted the interior of the town meant that you wanted to hit it and have

8 victims and to inflict terror. And the Prosecution claims that operations

9 were never conducted from the rear.

10 How can one imagine such a thing in reality? And then there are

11 witnesses, Prosecution witnesses who appeared here and proved the

12 contrary. There was Mr. Kapetanovic himself. 79, 58, he must know what

13 was at stake, he was one of the victims, and he knows General Briquemont.

14 And not only the last witness that I mentioned later on in another

15 context, not only did he confirm that attacks were carried out from the

16 city, but he also said that it was inevitable, that this was inevitable

17 when operations were ongoing, it was inevitable to have shells falling on

18 the city. 10.131, he said the following: "It became inevitable," and he

19 added for the period he was acquainted with where the Prosecution said

20 General Galic allegedly targeted the city in retaliation, and I will quote

21 what he said in English. [In English] "The shelling in December was

22 shelling between two armies which were trying to destroy one -- to destroy

23 military targets essentially." [Interpretation] Same page as before.

24 And we are referring to the part of the town that was under Muslim

25 control. And this proves several matters. Operations were conducted from

1 the city. It was inevitable to have shells hitting the civilian zone.

2 And the shelling was of a military nature. It is also true that this

3 witness confirmed that the Serbs and the Croats in July accepted certain

4 agreements, certain peace agreements. But those who refused were the

5 Muslims, the enemy side.

6 10.045, page 30, after the footnote, 1, 2, 3, at 85 and 92 as

7 well, the Prosecution claimed that the accused should never apparently,

8 allegedly conducted investigations and that the Defence didn't provide any

9 pieces showing the contrary. Mr. President, I don't know how to describe

10 that. It is not because of a lack of an imagination, it is perhaps as a

11 matter of courtesy, because the Defence has proven this by providing

12 documents -- we refer to documents where one sees very clearly - they were

13 provided by expert Radinovic - we see very clearly that such instructions,

14 such orders to carry out investigations were given. They were provided

15 within the chain of command, not only from a general to his subordinates,

16 have a look at who opened fire, what they targeted, what the circumstances

17 were. This was reported. But in other cases also it was said that no one

18 should leave the area. Why these investigations? And then there were

19 also reports from the superior command to General Galic, and General Galic

20 reporting to him. It was stated that it wasn't possible to take action

21 immediately but that there would be an answer in the following hours. So

22 I will talk about these documents later on. So to affirm that not a

23 single document was provided, it's a little, how should I put it,

24 surprising. The question then is to know why? Why is one attempting to

25 affirm this given that not only did the witness say that this was done,

1 but the documents in the case prove this. We have already said, let's see

2 who benefits by the crime.

3 86, 31, and before, 124. Mr. President, Your Honours, there is

4 something almost moving for the Prosecution given that one wants to

5 continue affirming that the accused was involved in a campaign, whereas

6 all the figures prove the opposite. And wouldn't it be more in conformity

7 with professional ethics, this is the question that I'm asking, wouldn't

8 it be better to admit the simple reality, the fact that the number of

9 victims didn't cease to diminish when General Galic assumed command?

10 Furthermore, there is a calculation, and this is something that struck me

11 a little later perhaps, but better late than never, there is a calculation

12 that the Prosecution never did. What was the proportion of victims, of

13 civilian victims, reported to the soldiers from April to September 1992?

14 That is to say, during the months that preceded General Galic's command?

15 What sort of light could we shed on this?

16 67, 60, 271. And this is what the Prosecution claims here. If

17 the accused himself complained, and I'll quote: "Repeatedly - the word

18 repeatedly - about such attacks carried out against the Serbs" - and we're

19 talking about sniping fire, Muslim sniping fire directed at the Serbs, and

20 this has been accepted by the Prosecution, this shows that the accused

21 would have been aware that such attacks were illegal. And thus, those

22 committed by the Serbs would also be of that nature.

23 One should not go too far and put the ass before the cart. The

24 first question. If that's the case, and the Prosecution claims that it

25 has been proven, that there were such illicit attacks directed against

1 Serbian civilians, attacks launched by Croat or Muslim forces, and this

2 happened frequently because of the complaints, and if nothing

3 distinguishes these attacks from the alleged Serbian attacks, then why

4 does the Prosecution -- why didn't the Prosecution do anything in this

5 respect against the Muslim or Croat forces. At school, Mr. President, I

6 was always taught - these are old memories for all of us - I was always

7 taught that one should add up the apples to the apples and the pears to

8 the pears and not to mix things up; the situation is the same. Why do we

9 have a different manner of treating these matters? Isn't this the proof -

10 this is what the Defence claims - that the attacks on the one side, on the

11 Muslim side allegedly against the Serbian side were not violations of

12 international humanitarian law, but if they can be compared to the Serbian

13 attacks, then the Prosecution has proven that the other attack which is

14 comparable are not violations either.

15 I don't see at all logically speaking what other conclusion we can

16 have, particularly since the Prosecution officially admitted that the

17 barriers that were set up in the Serb zone in Grbavica were established

18 and set up in order to protect the civilians from the incoming fire. And

19 speaking about the snipers. And that is not the most peculiar thing. The

20 only thing that was proven regarding the sniping and the incoming fire is

21 what happened in the Serb area. The Prosecution officially formally

22 admitted that there were barriers in the Serb zones in order to protect

23 the Serb civilians from incoming fire, fire coming from the Muslim area.

24 So this is rather peculiar to see when we know the strictness of the

25 Anglosaxon system that we are trying to apply here. The fact proved, when

1 the other facts are not proven, and then other consequences are drawn.

2 And regarding this matter, Mr. President, to see the problem of

3 Serb victims on the Serb side, behind Serb lines, and the argument is not

4 going to work either. What they will say, there is just one or two Serbs

5 who died, so that's not important. But first of all, the Prosecution

6 never tried to find out how many civilian Serb victims died on the other

7 side. And that would have been very important. Secondly, the Defence

8 proved that there were P16, P17, that the civilian Serb victims through

9 their -- regarding their numbers were more significant than other

10 casualties. Again, the silence on the side of the Prosecution. Ilidza

11 destroyed, shelled; Nedzarici, shelled, destroyed. Serb parts of town --

12 Serb parts of Sarajevo, wouldn't they have to be looked at by history and

13 by your judgement in the same way that the Muslims parts of Sarajevo would

14 have been looked at, like Stari Grad, that were less destroyed. Does it

15 mean that us lawyers, to follow up, to continue with false truths just

16 like the propaganda people did, should we follow suit? Personally,

17 Mr. President, I do not agree. That was civil war that was conducted in a

18 terrible surroundings. But at the same time, one has to be reminded, the

19 majority of civilian victims, the majority of civilian victims were a

20 minority compared to the overall figure. All of these victims were a

21 minority; the large majority were military victims.

22 One other tendentious point that the Defence would like to examine

23 in the next five minutes before the break, it appears under 238, 420, 85.

24 This is regarding General Karavelic's testimony. This is the corps

25 commander of the BH army. And this is the man who was the key person, and

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1 he should know things. And the Prosecution never showed, never asked this

2 witness specific questions regarding the front lines, and asked him to

3 give statement regarding these front lines. And we all know, except for

4 the Prosecution apparently, is that the memory of this witness, when we

5 tried to unfold one of the maps, large maps, he looked at it, and he made

6 a gesture and said, "This was designed by amateurs; this is not a good

7 map." Now, why would anybody be asking questions of a witness regarding a

8 map that he believed -- that he believed had been drawn up by amateurs?

9 The Prosecution -- the Defence does not wish to deal with amateurs.

10 And it is the same case, Mr. President, with the funerals. 415,

11 92, 1.092. We are speaking about DP1. Here we are, the ceremonies, Serb

12 funeral ceremonies were not shelled. Otherwise, he would have told us.

13 But two are things here: The first thing is that this person only was

14 present at two funerals during the war. It's rather a low number to draw

15 a general conclusion. And the second thing is this person told us that

16 this cemetery in question was at the Kosevo Hospital cemetery -- the

17 Kosevo park cemetery which was allegedly constantly shelled. Now, we can

18 see that the proof becomes a kind of -- it's a snake which bites its

19 tail. And it is true, if we look at the map very closely, we'll be able

20 to see that there were no really Muslim cemeteries. That seems peculiar.

21 But in the cemeteries, there were areas. There were Christian areas,

22 orthodox, Catholic, Muslim, there were even partisan areas, those who were

23 atheists. And they were buried there. So as such, there were no Muslim

24 cemeteries, but just areas of cemeteries that were Muslim. But the

25 Prosecution produced an exhibit 3625 regarding a shelling incident. If we

1 look at the image that I saw yesterday, like we all looked at, what we can

2 see is a tomb which is denoting a tomb of Muslim faith. But we can see

3 the very same cemetery, in the same image, there are crosses. These are

4 obviously Christian crosses. Cemeteries in Sarajevo, just like the

5 population, they were a little mixed together, but the Prosecution did not

6 wish to stress this too much.

7 I will just finish another matter just before the break. 442 --

8 am I going too fast?

9 JUDGE ORIE: Yes. I see that there's some difficulty in the

10 transcript to reproduces the numbers you just mentioned. Perhaps if you

11 read it a bit slower, that would be easier for the...

12 MR. PILETTA-ZANIN: I hope I'm not too loud. [Interpretation] I

13 will try and go more slowly.

14 I repeat, 442, 162, 1.045 -- 1.145. The Prosecution states here

15 that it would not have been possible to shell -- the Muslims were not

16 possible to shell without that becoming known and provoking reactions.

17 We'll come back to that.

18 THE INTERPRETER: The Muslims were not able to shell. Interpreter

19 correction.

20 MR. PILETTA-ZANIN: [Interpretation] Now, this is inconsistent.

21 These incidents were supposed to be attributed to the Serbs by the press,

22 which we know was a propaganda press, a war propaganda press. How can one

23 ascertain that it was impossible to do this when we know in the case, in

24 the proceedings it had been proven that there were groups like Seva, the

25 larks, special units were established by Muslim forces in order to carry

1 out such attacks, such firing with light or heavy weapons. This was

2 proven precisely by exhibits that stem from the Prosecution. And when we

3 hear Colonel Gray, a witness who said "I personally heard in front of the

4 presidency such firing, and I knew it could not have come from the PAPA

5 side [as interpreted] because I heard it only -- I heard it only as its

6 primary charge, the famous primary charge, when we know that this has been

7 proven. This has been proven.

8 And I will stop in a few seconds.

9 As far as the Seva group is concerned, the person who was heard by

10 the Prosecution and on this tape claimed that his group, the Muslim group,

11 they were tasked with opening fire, killing, eliminating successfully

12 peacekeepers, specifically a French soldier who was on the PAPA side in

13 Sarajevo. And he was supposed to protect the civilians from the Serb

14 fire. Why say that this would not have been possible when the proof was

15 given and demonstrated? This group existed, and they opened fire and

16 massacred -- killed one UN personnel officer, not just anyone. And he was

17 supposed to protect the population allegedly against the Serbs. And I

18 will finish very shortly.

19 The question that is asked: Why would then the Muslim side need

20 to stop the barriers being erected from the snipers? Now, to be

21 continued.

22 JUDGE ORIE: We will adjourn until 11.00, and the Defence then has

23 one hour and two minutes available remaining.

24 --- Recess taken at 10.33 a.m.

25 --- On resuming at 11.08 a.m.

1 JUDGE ORIE: Mr. Piletta-Zanin, you may proceed.

2 MR. IERACE: Mr. President, I apologise.

3 JUDGE ORIE: I know there is another issue. Yes, Mr. Ierace.

4 MR. IERACE: Thank you, Mr. President. I think I just wish to

5 clarify whether when the Defence completes its oral submissions you wish

6 to hear from us immediately. I think we have 30 minutes to respond.

7 JUDGE ORIE: Yes.

8 MR. IERACE: Or whether you contemplate there will be a short

9 break before we speak.

10 JUDGE ORIE: We -- I expect the Defence to finish at let us say

11 approximately quarter past 12.00. That is 15 minutes before we usually

12 have the break. On the other hand, if I would grant -- no, if I grant the

13 Prosecution 15 minutes, at least the break, 20 minutes, then they can

14 prepare, whereas the Defence had already an opportunity to reflect on what

15 the Prosecution has said overnight since you finished already by

16 yesterday. So I think it would be fair that we have an early break then,

17 and then I expect both parties then to respond for half an hour after that

18 break.

19 Yes.

20 MR. PILETTA-ZANIN: [Interpretation] Yes, the Defence fully agrees

21 with this. And of course, we will let the Prosecution all the time they

22 need to prepare.

23 JUDGE ORIE: Then there is a request from the English booth to

24 make a few corrections on the translation that will take, as far as I'm

25 informed, not more than half a minute, up to one minute. And I would

1 first like to give the opportunity to the English booth to make those

2 corrections.

3 THE INTERPRETER: Thank you, Mr. President.

4 JUDGE ORIE: I can't see behind the glass who is there, but may I

5 invite you to make the necessary corrections.

6 THE INTERPRETER: Thank you, Mr. President. Page 12, line 19,

7 instead of "there were a lot of victims" should be "there was a decrease

8 in the number of victims." Page 32, line 19, "it could not have come from

9 the PAPA side" should be "it could only come from the PAPA side." Thank

10 you.

11 JUDGE ORIE: Thank you very much for your very accurate work.

12 MR. PILETTA-ZANIN: [Interpretation] Mr. President, may I continue?

13 JUDGE ORIE: You may continue.

14 MR. PILETTA-ZANIN: [Interpretation] Thank you.

15 I will continue with the same system of numbering. 525, 199, 195,

16 and 1.357. It is completely false, therefore, untruthful, to say that

17 Father Spahic, the famous witness, could not have seen anything, didn't

18 hear anything, and that all was calm. On the contrary. When she arrived

19 on the site, she said that she heard bullets whizzing above her heads, she

20 heard bullets, in plural, in fact. And she heard the sound of shelling in

21 the distance. It seems that the Prosecution is confusing the situations

22 because yesterday in relation to the shelling incident number 1, the

23 Prosecution spoke of this witness. But of course this witness is in

24 relation to another incident, 492, page 221, and 1.469. Again, there is

25 something peculiar in the testimony, or at least what the Prosecution

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1 claims regarding the Karavelic's testimony. General Karavelic claim as a

2 witness that in Sarajevo, there was PAPA, there were uncontrolled

3 elements, subversive elements, that were able to operate from that area.

4 So operate, that is, with heavy weapons, with mortars, and with mechanical

5 devices, because that is what we're talking about. Now, the Defence would

6 like to ask the following question: If this witness was speaking the

7 truth, and one has to remember that the Defence did ask application

8 possibly of Rule 91, if he was telling the truth that there were units out

9 of control, that they could have operated with mobile mortars and heavy

10 weapons inside the city where things can be hidden with more difficulty

11 than elsewhere, then unfortunately, the Prosecution has proven that it

12 would have been the same thing in the Lima area where there were about

13 2.000 square kilometres of territory that was under the responsible of

14 General Galic.

15 Now, why admit, why admit as proven that in the PAPA area there

16 were uncontrolled elements that were able to fire in such a way and to

17 exclude, to exclude this for General Galic when his area of

18 responsibility, area of control, was much, much larger? That was 237

19 kilometres in the length of front lines.

20 Page 240, 557 -- sorry, that's AD557, and note 1.584, Prosecution

21 says that barricades, barages, were erected in the PAPA zone in Sarajevo

22 to protect civilians against firing of Serb snipers. And here, we are

23 going to have to be very technical. We should look at what the

24 Prosecution said, AD 14.883, they said, and this was not contested, that

25 the barriers were erected in the Serb area in Grbavica precisely in order

1 to protect the civilians from the incoming fire from the other side. And

2 this is what has been technically proved and admitted by the Prosecution.

3 561, page 241, note 1591, and here, the Prosecution seems to

4 contest -- the Prosecution seems to contest what they had admitted

5 previously. We know that finally, it was the initiative of the Defence

6 that was there was one single point of agreement. Sarajevo was in the

7 centre of a theatre of urban warfare. This was formulated -- for the

8 reasons that we know it was formulated in French, and it was accepted by

9 Mr. Ierace's signature. But the Prosecution forgets or pretends to forget

10 that they agreed to this, and they put it -- they question it in their

11 submission. They say a large part of the theatre was urban warfare. That

12 is not innocent because we know it is completely different than having a

13 completely urban or a partially urban warfare theatre. So to come back on

14 an agreement for a legal expert in Anglosaxon law, that is unacceptable.

15 There is a proverb that a person who doesn't stick to the rules, who

16 doesn't accept the rules, who continues not to accept them, should suffer

17 the consequences according to that, [Latin phrase]. And the Defence would

18 like to [Latin phrase] regarding a very particular character nature of

19 these proceedings regarding what is involved, and the Defence will not --

20 will say [Latin phrase], [In English] "last but not least."

21 [Interpretation] And finally, the most peculiar of all the

22 contradictions, and we have seen it, the Prosecution wish to exclude all

23 Muslim shots inside going and coming. But we have a witness who said,

24 Witness Gray, I heard him, and he said, he claimed, and we heard the

25 Prosecution wanting this witness to say, but that was not possible. You

1 were not able to hear the shot. Remember, this was coming from elsewhere.

2 And what was necessary was for this witness to be extremely clear

3 and to say that it was impossible for that shot to come from elsewhere,

4 that this was all a setup, that the police forces were coming quickly, and

5 this shot, this attack caused one victim he confirmed. And the question

6 was where is this dead person in the figures? Where is this casualty in

7 the figures presented by the Prosecution, and why was this not taken into

8 consideration as being a victim of an attack provoked by Muslim forces?

9 Mr. President, I would now like to move on to another subject

10 which concerns the destruction of mosques, religious sites, et cetera. In

11 the reality of the case, the Prosecution has not proven anything in its

12 case as far as the destruction of mosques, churches, and synagogues are

13 concerned. My question is: If within the framework of a campaign, the

14 objective of which was to eradicate the Muslim population in Sarajevo, one

15 wanted to carry this out, why didn't they destroy minarets, the domes, why

16 didn't they target the mosques? I'd like to point out that history

17 abounds with examples, and quite recently we saw this in East Timor, we

18 saw that they set fire to religious sites. We saw this in Karachi. We

19 saw religious sites which were burned, which were attacked. And every

20 three or four years, we can see Hindu or other -- Hindu temples or other

21 sites in India or in Pakistan that are destroyed. Only one case in

22 Sarajevo can be found in the case -- can one find a single case in

23 Sarajevo? No. It's not possible to find a single case of such an act in

24 the 22.000 pages of this investigation or in the 60.000 pages of the

25 documents provided. There is nothing contained in these documents. So if

1 these men in East Timor or if these men are in The Hague or in Bosnia, the

2 only reason for which in Bosnia and Sarajevo this is not something that

3 happened is that these people acting under the orders, under the command

4 of General Galic, were ordered not to act in such a manner. They did not

5 act in such a manner because such was the will of their superior.

6 So that was what they had in their mind. And I'm sorry saying

7 "mens perfecta," and not "mens rea." It is necessary for the Prosecution

8 after the break explains to me how one can reconcile these two factors

9 because I have not yet understood how this can be done. If the objective

10 is to reconquer Sarajevo, to retake Sarajevo, and to get rid of all the

11 inhabitants of Sarajevo, then why preserve the mosques which are a symbol

12 of the enemy's foreign nature? I'll turn to this later, Mr. President,

13 but first of all I would like to say that the city of Sarajevo -- I'd like

14 to say thing about the city of Sarajevo. We were told that it was

15 destroyed. The Sarajevo "delenda est" that the Prosecution wanted to

16 present to us, the well-known Sarajevo "delenda est," well they are far

17 from proving that Sarajevo was destroyed. And I think that as far as this

18 key point in the Prosecution's case is concerned, I think it's somewhere

19 between the mandrake on the one side and the man-eating snake on the other

20 side. As far as the war is concerned, Mr. President, the Defence would

21 like to say the following: It's not men who decide war, quite often. But

22 quite often, war is imposed on them. And this is the story of Mr. Galic.

23 In a document with Jean Giraudoux, which is his play published in

24 1935, I will not quote from his play because everyone knows it, three were

25 totally destroyed by the war, Troy was totally destroyed by the war,

1 whereas Hector and Ulysses did not wish for this. And the history, the

2 story of General Galic is such, unfortunately, given that Sarajevo was not

3 totally destroyed by the war with this exception. As a general, it was

4 his duty to serve, it was his legal obligation as a military man to

5 respond to the orders that he had received, to obey the orders he had

6 received. But once he had set up in his headquarters, once he had assumed

7 his position as commander, what did he do? Did he immediately order that

8 there should be more ammunition used to shell the city? Did he request

9 that one should increase the industrial production that was contained in

10 his area of geographical responsibility, not an administrative zone. Did

11 he request that his logistics be improved to allow him to target the city

12 more effectively allegedly?

13 There is not a single indication, not a single beginning of a

14 shred of evidence that would prove that when General Galic assumed

15 command, he would have done anything to use his structure for a campaign,

16 to use his men for a campaign. No, the numbers diminished considerably.

17 This has been borne out by the figures in the Tabeau report. And to be

18 more efficient, did General Galic give any orders to constitute even a

19 single special unit in order to fire more effectively on the alleged

20 civilian targets that they were targeting on the other side of the lines?

21 The Prosecution doesn't allege this even. Did Galic even encourage in a

22 speech or anything he said, did he encourage his troops in a speech to

23 conduct themselves in such a criminal manner? Nothing has been

24 demonstrated. Did he himself provide an example, specific example, by

25 having an extremist attitude? There is nothing to say that he did. The

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1 only thing we have is the document of the 14th of May, 1992, and the only

2 thing that we should be interested in, it is stated, is to defend without

3 a war. [redacted]

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11 To conclude on this point, let's draw everyone's attention to the

12 rules. The rules allow us to keep certain sources of information quiet.

13 Why? Because obviously we know that in such matters, the secret

14 service -- the intelligent secret service cooperated. And we know that

15 everyone was listening to everyone. We have proof that the Muslims were

16 also listening, but we know that the great states were listening. In this

17 case, Motorolas and telephone lines were mentioned to a large extent.

18 There is not a single transcript of a wiretapping conversation with regard

19 to General Galic which might refer to a single order issued by him, an

20 order that might be of an illicit nature. As far as the alleged threats

21 are concerned - my colleague spoke about these a minute ago - it's still

22 necessary to prove that they were implemented. Who knows, it was perhaps

23 just a manner of exaggerating a man who was nervous at the time and who

24 says several times: "This happened to me. I said things I didn't really

25 mean." I said I wouldn't make any comment of a brutal nature about these

1 things. I never wanted to say anything by saying that, that I despised

2 anyone. It's possible that for everyone to say things that that person

3 does not mean. But it is still necessary to prove that the person wanted

4 to kill.

5 There is another thing that we have to say about the war,

6 Mr. President. And unfortunately, this is what history bears on today.

7 There is a war which took place not long ago. That's the war in Iraq.

8 And if I refer to it, and we haven't been able to refer to it for

9 chronological reasons, for obvious reasons, but I refer to it because it's

10 an important example. In a few weeks of combat, and this has been

11 accepted by the parties concerned, there were hundreds, perhaps thousands

12 of civilian victims, dwellings destroyed, civilian vehicles were

13 destroyed, hospitals, maternity wards were affected, were hit.

14 Electricity centres, the water-supply system deteriorated. Water pumps

15 damaged. On two occasions at least markets were hit, and tens of

16 civilians victims -- scores of civilian victims were caused. There was a

17 hotel which was hit in which the press was located. Members of the Red

18 Cross from Geneva were killed. A civilian -- a restaurant was shelled

19 with the pretext that there was an Iraqi soldier there. And the most --

20 some of the most important museum inside the world were looted.

21 Apparently no UN victims for the historical reasons that we are well aware

22 of.

23 What the Defence simply wants to demonstrate here very briefly is

24 that if this army which claims to have deployed in this theatre of

25 operations what we call "smart weapons," the most technically modern and

1 precise weapons, weapons that shouldn't make mistakes or not many

2 mistakes, given laser guidance, the global positioning system, all the

3 modern technology of the 20th century, if in spite of these technological

4 advantages, in a few weeks of combat, there were more civilian victims

5 perhaps than there ever were in Sarajevo, if these victims were provoked

6 with -- everywhere in Sarajevo with old-fashioned weapons, what is the

7 conclusion we can draw from this?

8 JUDGE ORIE: Mr. Ierace.

9 MR. IERACE: Mr. President, might I say something in private

10 session.

11 JUDGE ORIE: Yes --

12 MR. PILETTA-ZANIN: [Interpretation] Is it an objection,

13 Mr. President?

14 JUDGE ORIE: Yes, you may make a objection to this request. You

15 may respond to that -- you may respond to whether we go into private

16 session, of course.

17 MR. PILETTA-ZANIN: [Interpretation] No, but I would simply -- I

18 would simply appreciate it if this time wasn't deducted. Thank you.

19 JUDGE ORIE: We turn into private session.

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1 MR. PILETTA-ZANIN: [Interpretation] Thank you very much. Another

2 problem is the figures on the other side of the line, and here that is the

3 unknown for the Prosecution, DP17 and then DP16 proved the existence of

4 important losses, important casualties. Simply, I would just like us to

5 make a comparison between the figures given by DP17, approximately 300

6 civilians killed in that period in Ilidza with 460 soldiers killed, and

7 2.150 soldiers killed in Tabeau report. We can see the Tabeau report

8 examines a part regarding Ilidza, entitled Ilidza, and we can see that

9 these figures are completely fully comparable with those that are offered

10 by the Tabeau [as interpreted] report.

11 Now, if we extrapolate, Mr. President, these figures given by one

12 witness, the level of all the brigades, however empirical the system may

13 be, we will come to the obvious conclusion that there were practically as

14 many victims and casualties on the other side of the lines as there were

15 inside the PAPA area -- the PAPA zone. Here, I'm referring to Section 5,

16 table 1 of the Tabeau report. That's where we can find the figures that

17 are comparable. On the other hand, we can see that the testimonies show

18 us that the situation was comparable on the Serb side to the non-Serb

19 side.

20 On the subject, I would like to refer to other witnesses. For

21 instance, Witness Lasic spoke to us about some 240 victims on page

22 13.763. And Witness DP1, on page 13.936, and it is this last witness who

23 gives us this figure. Witness DP10, who confirmed that many shells hit

24 civilian facilities, reference 14.340. Witness DP9. We also have Witness

25 Vukovic, 14.637. Witness DP8, 14.771. And finally, Witness DP19, 16.413

1 who confirmed his only son died as he was going into his building, a

2 civilian building. Finally, we should mention the testimony on page

3 17.769 of Witness DP17 who referred to 120-millimetre shell that landed

4 near the Blazuj hospital killing immediately on the spot seven persons and

5 wounding 33 out of whom 2 died of their injuries.

6 This correlation of figures did seem to prove that on one side,

7 like on the other side, there was no campaign. We know dami factum

8 [phoen], and the Defence has replied, has responded errati factum.

9 Let us speak about the incident in Vasa Miskin Street. It is an

10 incident due to a clearly proven manipulation from a Serb population

11 almost exclusively targeted in Sarajevo of streets with obstacles,

12 journalists coming near, everything ready for an operation, and great

13 difficulty for this place, the exact spot to be hit from the Serb

14 positions. However, this attack was attributed to the Serb side from the

15 press, and you know what we have to think about that. DP1, DP2

16 testimonies, they are very clear, and they establish the reality of this

17 kind of operation. And the reality of this case, of this incident, is the

18 untruthfulness. It's a setup. We wish to be very clear. We have to take

19 the consequences regarding this reality, regarding the accused, and take

20 the consequences of the law. The proof has not been presented.

21 Therefore, we cannot condemn. Falsehood or lie was never the weapon of

22 the just. The lie is just a mask of an imposter. We have no right as

23 lawyers, as men of law, to trust -- follow the Prosecution's case who did

24 not wish to see the reality of this setup.

25 And they were trying to prove to such an extent that among the

1 Prosecution witnesses, there was an important number of UN witnesses who

2 came here to testify as Prosecution witnesses under oath that this was a

3 common location among the -- it was a commonplace thing among the UN

4 personnel in Sarajevo for the firing by the Muslim side against themselves

5 in order to exploit the military and political and mediactic [phoen]

6 situation. It's the peak of the state that should be targeted here,

7 legal, political, military, those who have decided on this.

8 And I have to admit that regarding this point of such firing, it

9 is very surprising that the Defence did ask this question on several

10 occasions: How can that happen? How can you consider these facts? How

11 can you consider other facts that were proven, like the one regarding

12 those civilians who were systematically forced, a large number of them, to

13 dig trenches at the front line? How can you consider, and I have written

14 this many times, and I have never received a response, an actual

15 response. No comment in this case is not satisfactory. Justice must come

16 out victorious of this case, and it will come out by resolving the

17 riddles. Because justice is not an engine to condemn, to convict. If

18 Nedzarici's Serb part of town and Ilidza's Serb part of town had been

19 destroyed, Doboj, Vojnicko Polje, and if this is not a result of a

20 criminal act, which is what the Prosecution is saying to us today, how can

21 one logically the Dobrinja, Vojnicko Polje for their part would be that?

22 We can see here that logic cannot explain away this, but what cannot

23 explained by logic is in general what is not true.

24 The Prosecution was not able to bring any proof, but there is --

25 this is done in a monumental way, and we can all agree there was no

1 evidence. The Defence regrets that we were not able to organise transport

2 to go to the site; otherwise, we would have been able to see many things.

3 There is one other -- there is one other thing, Mr. President.

4 It's an ancient text, but it is very modern. I will only quote two

5 articles and only partially. It is a little hard, the first one, Article

6 1, I have to say here that this is a fundamental text which I literally

7 have in the palm of my hand. I believe that this is a legal monument.

8 "Men are born and remain free and equal." Article 2: "The objective of

9 every political association and -- the objective of all political

10 association is the consideration of natural laws and unrenounceable of

11 man. These rights are liberty, property, the security, and the resistance

12 to oppression. Declaration of the rights of man, fundamental text."

13 Regarding General Galic, it is important to remember these two

14 articles. Freedom and resistance to oppression, and this is what he has

15 continued to plead. Proportionality and distinction, but I don't know how

16 much time I have left.

17 JUDGE ORIE: You'll have another 27 minutes.

18 MR. PILETTA-ZANIN: [Interpretation] Thank you very much. That

19 will be perfect.

20 Proportionality, regarding the question of proportionality and the

21 respect thereof, it may appear, but only prima facie, and we how much

22 prima facie is important in this case. There could be an appearance of

23 difference regarding the difference between the incoming and the outgoing

24 shots. However, there are several observations I'd like to make. We know

25 that there is an incoming shot. And when it explodes and frequently, they

1 do explode, it is a lot more easier to distinguish, and therefore enter

2 into the logs, into the figures, rather than when it is outgoing from

3 Sarajevo on to Serb lines. And that it would go somewhere within the 237

4 kilometres of the front line of 2.000 square metres of the area, since

5 there was not enough personnel to check all this and to keep it all under

6 control. That is first point.

7 Second point, the noise. When a shell lands in the city, you can

8 hear this noise, but you can hear it -- several people can hear it. And

9 we know that the technique was to hear it and to report it. This is what

10 was the method. And here we have had a confusion because several persons

11 may have heard the same thing, and then recorded it several times. Third

12 thing, the Lima provocation fire, whether they were mobile mortars or not.

13 This method was proven. But what the Defence furthermore, and that was

14 through the testimony of General Radinovic, which is the doctrine that

15 he's teaching, that when a battery is firing at you, you should look --

16 you should try and destroy it militarily. In order to destroy a battery,

17 you can't use just one shell. Figures were given when he was testifying.

18 And from memory, I think he was speaking about 25 shells or more that was

19 needed in order to try and achieve about a hundred per cent of

20 destruction -- 50 per cent of destruction. And to achieve 100 per cent of

21 the destruction, to eliminate it completely, how many shells would have to

22 be fired? This was the task of an engaged commander, to try and find the

23 military enemy objective. And this explains why this exists, this

24 difference between the incoming and outgoing fire.

25 Fourthly, if the response was not calibrated and measured

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1 proportional to the incoming fire, then we would have found a situation on

2 the ground that would be completely different. We would have found the

3 entirety of the city, not just the area of the conflict, not just the

4 confrontation zone stricto senso, but the entire city, all of the areas,

5 the old town, those the most fragile, completely shelled, completely

6 destroyed. Looking at those fragile houses, weak houses made of stone,

7 and there we would have had a city razed to the ground. Now, is that the

8 case of Sarajevo? And the answer is clear, no. Is it true that the

9 Prosecution was never able to bring into this case one single element of a

10 building, symbolic building, which was of symbolic nature, that during the

11 incriminating period, the period of the indictment, would be connected to

12 General Galic, that that building was destroyed? Those of us who were

13 here for 16 months of the proceedings, can we give one single building

14 that the Prosecution can tell us that was deliberately targeted? We were

15 speaking of a matchbox. But this is one of the highest buildings. That

16 is not a symbolic building. And it is certainly a location where -- that

17 the enemy fire could reach, and this was to do with the superior floors of

18 the building from where the Serb forces could have been targeted the

19 best. Nothing else.

20 There were two facilities that the Prosecution mentioned. The

21 famous national library, and the PTT building. But these two facilities,

22 they were also hit outside of the indictment or the relevant period, and

23 one of them could have been, according to what we call the dual use, a

24 legitimate target, a legitimate military facility.

25 And I think that this absence of documents, of these facilities,

1 they would have been symbolic. That is another proof that the Prosecution

2 brings. And there are others. There is a witness - I won't quote him

3 because I don't know whether it was said in open or closed session - there

4 was a witness who said on one Sarajevan hospital was a bullet

5 pockmarked -- not bullets, it was shelled. It was hit by artillery,

6 probably by tank fire. It had a crater that could have only come from the

7 internal area, Muslim side, because there was a hill between the

8 Sarajevo -- between the Serb forces and the hospital in question. The

9 proof brought by the Prosecution, it was that the Muslim forces that

10 managed to do this, and that is to fire at their own hospitals.

11 Certainly, there is a state hospital, and I'll speak about Kosevo

12 Hospital a little later, military hospital. So we have one witness,

13 Witness Ashton. He tells us, state hospital, that was terrible. Every

14 day, there was at least one artillery hit. But again, the Prosecution

15 proves the contrary. When we listen to the doctor who worked there more

16 than others, who had -- I will give his name. I think that it was in open

17 session, Dr. Mendlovic. The greatest damage caused was the result of

18 infantry fire, that is to say, the result of fire opened from normal

19 firearms. He also says that the north side was less damaged, but it was

20 damaged. And when we have a look at Mr. van Lynden's testimony, who was

21 set up in his headquarters there, he says he only remembered one artillery

22 shot, directed at this site. It is obvious that on the one hand, this

23 fire -- not the artillery fire but the infantry fire, was the result of

24 ongoing combat in the city at the time. It is also obvious that the

25 testimony of Mr. Ashton was totally refuted by other Prosecution witnesses

1 because how could one imagine that there was artillery fire every day

2 directed at such a hospital, whereas those who lived there said the

3 contrary, and those who were based there only mentioned one incident, one

4 case of shelling.

5 And Ashton is an odd journalist, yes, an odd journalist, because

6 this witness, this freelance journalist, when he was wounded and

7 apparently this is the sort of treatment that the press is very interested

8 in, he was evacuated by the American forces. He was treated at an

9 American base in Germany, and then treated at a hospital -- a private

10 clinic in Germany if you please, and he never paid a cent for this. I

11 know that journalists are people who lead interesting lives, but should

12 not one think of what Mr. Indic said, that Ashton was a special agent who

13 had been sent by certain American agencies in order to see what -- to have

14 a better view of what was happening in Sarajevo. Hence his rather

15 particular testimony.

16 Let's remember that when the tank allegedly fired on a facility,

17 he climbed up on the roof to take photographs as a journalist. He took

18 his camera, but alas, he forget to some film with him. Very well. Very

19 well.

20 Whatever may be the case, the figures speak for themselves. And

21 the figures from the Prosecution speak against the Prosecution and in

22 favour of the Defence. If I shell on a daily basis and within the

23 framework of a campaign, so many hospitals and so many occasions, there

24 would have been a lot of victims. And that would have been known, that

25 would have been established. There were certain medical personnel who

1 were wounded. But we can count them on the fingers of our hands. And the

2 Defence doesn't think that this could prove the existence of a campaign.

3 I will now move on the subject of orders. Could we move into

4 private session now. I would appreciate that, Mr. President, just for a

5 brief moment.

6 JUDGE ORIE: We will turn into private session.

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10 JUDGE ORIE: Yes, we are in open session. Yes, please proceed.

11 MR. PILETTA-ZANIN: [Interpretation] Mr. President, with regard to

12 that matter, well, how can we exclude three possibilities? First of all,

13 the fact that a shot was a result of a soldier who was not obeying

14 orders. You know that sometimes there are lawyers who don't obey. Why

15 shouldn't there be soldiers who fail to obey, too, but who don't report

16 this? Secondly, the shot was fired by someone who wasn't under the orders

17 of General Galic, and I would include people from the Seva group.

18 Thirdly, a certain wound wasn't the result of a certain shot but was

19 result of an error.

20 While I would appreciate it if one could show me how we could

21 exclude these possibilities and on what basis. Just one example what the

22 Prosecution could have done because we know that there are only 253

23 sniping cases, alleged sniping cases. Let's not examine 20 or 24, but

24 with regard to these 253 cases, they could have given precise indications

25 that would have allowed you to verify what the reality is. This was not

1 done. And I have to repeat it very clearly [Latin phrase]. Thank you

2 very much.

3 And I know that with regard to this matter, the Prosecution would

4 agree with us.

5 The Prosecution could have done this, they could have presented

6 these 253 sniping cases as proof, and 98 bis allows them to do this, and

7 given that it would have represented nothing among the documents that we

8 received, they didn't do it. They didn't prove it. They didn't want to

9 prove it. They have to take this into account.

10 THE INTERPRETER: Interpreter's correction. Rule 92 bis.

11 JUDGE ORIE: You are using now and then Latin. As you know, Latin

12 is not one of the official languages of this Tribunal.

13 MR. PILETTA-ZANIN: [Interpretation] I regret it, sir.

14 JUDGE ORIE: There might be a problem translating in English. So

15 if you would repeat in French what you said in Latin, we are sure that the

16 Prosecution also becomes aware of what you said, unless the Prosecution

17 would now confirm immediately that they all are fluent in Latin.

18 MR. IERACE: Very sadly, Mr. President, I cannot confirm that I or

19 my fellow lawyers are fluent in Latin.

20 JUDGE ORIE: Yes. I then ask you to repeat in French what you

21 said in Latin.

22 MR. PILETTA-ZANIN: [Interpretation] [Latin phrase], the dice has

23 been cast. What I have said, Mr. President, a minute ago is [Latin

24 phrase], that is to say, it's not sufficient to have an -- alleged illicit

25 acts unless there was an illicit intention present. It's not an illicit

1 act unless there's an illicit intention. That's what I said, Mr. Ierace,

2 and I was clearer in French. Have I been clearer in French than I am

3 usually in Latin? I think so.

4 The shelling incidents, Mr. President. No proof as to the origin

5 of fire, of the alleged fire. And above all, I am no longer talking about

6 the fingers of my -- of both my hands, but just about the fingers of one

7 hand. Five incidents are concerned. Five incidents to prove the reality

8 of a campaign during 24 months of a conflict. Five incidents for which we

9 are told that the Serbs, nasty as they were, could have targeted all the

10 bread queues, all the queues for humanitarian aid. And this happened

11 almost on a weekly basis, and they knew where they were located because

12 their information service was perfectly well organised. Five cases

13 alone. Very well.

14 The Prosecution claims that this -- that civilians were

15 deliberately targeted in this shelling. That's not true. Let's take an

16 example, very briefly, very rapidly. The football match. Why doesn't the

17 Prosecution want to recognise the reality of the fact that the trenches

18 were not 300 metres away as they said, but 50 metres away. That is what

19 the situation was. Witnesses supported this claim. So it means ignoring

20 testimonies and documents. It shows that there is the desire to convict

21 General Galic and that the willingness to arrive at the truth does not

22 exist. The same observations should be expressed with regard to Alipasino

23 Polje. I have heard, and I was quite flabbergasted by this yesterday, the

24 Prosecution said that the entrance of a building was targeted. But if the

25 shot was fired from Nedzarici, the only thing that one knows is that in

1 such contested hypothesis, the gunner would not have been able to see the

2 entrance to the building. So how can we have such a setup, and what would

3 the objective of such a setup be if not to prove that the Prosecution's

4 objective is not to establish what the truth was, but to have recourse to

5 the sort of [Latin phrase] in order to have General Galic convicted.

6 Why not examine the possibility of an error?

7 Let's examine the other incidents briefly. In general, we won't

8 go into the details, because we have the documents that we are interested

9 in. The Prosecution could have proved certain facts through the

10 witness -- through its witness Kovac, an artillery expert. Very well.

11 But this witness appeared here, and he claimed that these were all cases

12 of murder. An artillery expert made this claim. And when the Defence

13 intervened and wanted to cross-examine this witness to a certain extent to

14 see what he really had to say, he was so disturbed that he no longer knew

15 where he had met representatives of the Prosecution in The Hague. He no

16 longer knew who Mr. Ierace was. So how can this be for an expert who

17 comes here and says yes, those were murders, and no longer knows who gave

18 him the mandate? We should have proceeded as in the case of Hinckley, the

19 artillery expert who said on instructions by the Prosecution that he never

20 saw a gunner. He said that as an expert, I affirm that these people did

21 have the intention of firing above, or lower down, or to the left, to kill

22 them or to wound them. What can that be? When one brings experts in

23 order to prove the existence of mens rea, the intention, to say, yes, I

24 wasn't there but I know very well that the person over there had the

25 intention of doing what the person did, and these are claims made before

1 here before this Trial Chamber. The Defence can never accept such claims

2 regardless of decisions that your Trial Chamber might reach.

3 As far as terror is concerned, this is a fairly -- this is a quite

4 simple matter. Here we have a certain image. In order to seek the truth,

5 an expert is provided with a photograph, an art collector, and he provides

6 a piece of art and says confirm to me that this is -- for the English

7 booth, he provides a photocopy of his painting, and he asks his expert

8 "prove to me that this is an original." And this is exactly what the

9 Prosecution did with Turner's report. Did one ask expert Turner to

10 examine medical documents, to discuss with former patients? Did one even

11 produce psychiatric documents, the records before, the records during the

12 war, the records after the war, et cetera, et cetera, nothing was

13 produced. And this expert witness wasn't even shown a plan of the town so

14 that he might know where the legitimate combat zones were located along

15 with the consequences that this implies. He was provided with a photocopy

16 of the situation. He was said "stamp this, certify that this is original,

17 there was terror," I'm asking you to do so, so do it. And that's it; end

18 of case.

19 JUDGE ORIE: Mr. Piletta-Zanin, doing your calculations by hand

20 now, it's five minutes left.

21 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I'm happy to

22 see that you have understand me perfectly. And since I have only five

23 minutes, these will my very last minutes. Markale. Markale. Markale.

24 And the only thing I'll say in five minutes about Markale is that it was

25 never possible to prove -- it has never been proven from which side of the

1 lines these shots came. Anything else would be nothing but speculation,

2 pure and simple speculation. The real battles, these are the battles

3 conducted by experts. I have to admit that I am not an expert, not to the

4 extent that Mr. Stamp is as far as algebra and mathematics are concerned.

5 Sometimes I have difficulty in following these matters, so I will base

6 myself on common sense and logic and we will see how in the case of

7 Markale, there are far more troubling matters. There are a lot of matters

8 that are disturbing.

9 First of all, it has been proven in the case that there are 70,

10 about 70 I didn't count the exact number, but about 70 shells exploding,

11 70 shrapnel pieces. 70 shrapnel pieces.

12 JUDGE ORIE: [Previous interpretation continues] ... I asked you

13 to address me.

14 MR. PILETTA-ZANIN: [Interpretation] Thank you, and I apologise.

15 About 70 pieces of shrapnel that were collected by the authorities in

16 Sarajevo. These pieces of shrapnel, it has been proven that they were

17 collected at the site immediately following the incident. And we are also

18 told that, and such was the procedure, they verified that these were

19 recent -- these were fresh shrapnel pieces, that's the term that was used,

20 with regard to this incident. There is proof that these fragments were

21 somewhere. It's in Document 60, Defence Document 60. We know that the

22 visual analysis, mechanigraphical or chemical analysis could have allowed

23 us to establish one matter: Whether these fragments were the fragments of

24 one shell or not. In order to verify this matter, the Defence on several

25 occasions requested the production of these pieces of shrapnel. We know

1 that the MUP and the justice organs, the judiciary in Sarajevo possesses

2 these pieces. At the very end of its case, the Prosecution told us:

3 "Sorry we can't provide you with these pieces of shrapnel." End of

4 story. And we cannot know since these fragments -- as far as these

5 fragments are concerned, we can't know what the case might be. But what

6 we do know is that they didn't want these fragments to be produced before

7 this Tribunal so that might be in a position to analyse them.

8 And the question was: What would have been the origin of these

9 fragments? Did these fragments belong to one shell or to several shells?

10 And by not allowing us to proceed in this manner, and I'm not referring to

11 your Trial Chamber, Mr. President, I'm speaking in a very broad sense, but

12 the rights of the Defence were violated for a simple and clear reason. If

13 one had proven that these fragments weren't the fragments of just one

14 shell, in that case, the Defence could have developed its case and could

15 have clearly prove what it has always wanted to prove, namely, a certain

16 lack of responsibility. The simple fact that these fragments were not

17 produced has prevented us from doing this.

18 But even more, the Prosecution goes further and proves the

19 contrary of what they wanted to say. AK1 was an old witness whose hearing

20 was perhaps not as good as ours but who was very clear and who said, Well,

21 I heard a shell fly over my house, and he even described the sound of the

22 shell. And we had a lot of witnesses and experts who said that you can't

23 hear a shell that is not self-propelled. One can't hear such a shell in

24 town. One could only hear such a shell under two -- in two conditions:

25 If one is in immediate vicinity of the origin of fire, and one can hear it

1 perhaps if one is there when the shell lands. In other words --

2 JUDGE ORIE: Your five minutes are over. I told you that we would

3 be very strict. So would you please finish in one minute.

4 MR. PILETTA-ZANIN: [Interpretation] In other words, this witness

5 proves that if he heard the shell, the shell could only have been fired

6 from position -- the position where his house was located; that is to say,

7 in territory it was not controlled by Serbian forces.

8 And in one minute, the last point is probability. One talks about

9 a debacle in Markale, but this was a very political debacle for the

10 Serbs. Why would General Galic - and he's been described as an

11 intelligent man to us - why would he have ordered his men to create such

12 an a debacle given that we knew that this would have provoked the

13 intervention of the international forces in Bosnia at the time.

14 Therefore, this would have accelerated, if not provoked, first of all the

15 end of the conflict; and secondly, would have resulted in the victory of

16 his enemy. Why would this man who has been described as intelligent, why

17 would he have desired such an effect, given that quite obviously this is

18 not the case.

19 JUDGE ORIE: Your time is over. I invited you to finish in one

20 minute. You took that one minute. You have now 30 seconds and then it's

21 over.

22 MR. PILETTA-ZANIN: [Interpretation] I wanted to say I am almost

23 finished. I wanted to cite Tucker, who in response to one of your

24 questions said, and I will quote in the language that he used, in English,

25 [In English]: "To put it bluntly, the more suffering the better, because

1 that plays to the television cameras and would ultimately lead to the

2 pressure that they wanted in order to achieve international

3 intervention." [Interpretation] 10.330, as -- 10.030, as in 30 seconds.

4 Thank you very much.

5 JUDGE ORIE: Thank you, Mr. Piletta-Zanin.

6 We'll now adjourn for 20 minutes. This also means that since the

7 parties both have 30 minutes available. Looking at the clock, we'll start

8 again at a quarter to 1.00. And since our time today goes until a quarter

9 to 2.00, I expect the parties to keep well within the 30 minutes because

10 the parties should finish by today.

11 That also means that there's no time available any more to respond

12 to any questions of the Judges, so therefore, the parties -- of course I

13 do not know whether you'll use your full 30 minutes, but you should be

14 prepared to continue tomorrow morning to answer any questions of the

15 Judges still remaining.

16 MR. PILETTA-ZANIN: [Interpretation] Mr. President, the Defence had

17 prepared to part immediately after this hearing, since we were granted

18 this. But if we could have more time this afternoon, we would appreciate

19 that. Thank you.

20 JUDGE ORIE: There will be no possibility this afternoon. We all

21 were aware that we had a very strict order. And if everyone would keep

22 strictly to the time that we might have finished today. But this was not

23 possible. So I invite the parties to adapt their schemes to what is

24 really, I would say, the last final part of the trial is very important.

25 So therefore, I suggest that the parties would adapt their schemes. If

1 there's anything to be said about this, we'll hear about it during the

2 break. You'll give us the messages needed.

3 We'll adjourn until a quarter to 1.00.

4 --- Recess taken at 12.25 p.m.

5 --- On resuming at 12.48 p.m.

6 JUDGE ORIE: I would first like to deal with the order of this

7 hearing. There will not be sufficient time available today for questions

8 of the Judges. That means that at a quarter to 2.00, or perhaps a few

9 minutes later, after the parties have finished their submissions, we'll

10 adjourn until tomorrow morning, 10:30, Courtroom II.

11 MR. PILETTA-ZANIN: [Interpretation] Mr. President, you're looking

12 at me. Is that a question?

13 JUDGE ORIE: No, it's not a question.

14 MR. PILETTA-ZANIN: [Interpretation] Very well, then.

15 JUDGE ORIE: During the break, I received no further information

16 or further messages, so that's the decision of the Chamber.

17 Mr. Ierace, are you ready to...?

18 MR. IERACE: Yes, thank you, Mr. President.

19 JUDGE ORIE: Please proceed.

20 MR. IERACE: Mr. President, I will start, and at a later point, I

21 will hand over to Mr. Mundis who will respond to some of the submissions

22 made yesterday on the law.

23 I refer to the submissions in no particular order, and I will have

24 to move fairly quickly in point form. In relation to the nonappearance of

25 the fragments that were referred to by Mr. Piletta-Zanin, we heard from

1 Mr. Suljic that various departments in Sarajevo moved. And as a

2 consequence, the fragments could not be located. And that clearly was the

3 reason that the Prosecution was unable to produce them. Submissions were

4 also made in relation to the statistical evidence presented by Ewa

5 Tabeau. At the outset, the Prosecution did not set out to prove a

6 particular quantification of civilian casualties as a result of the

7 unlawful sniping and shelling; rather, the Prosecution took the view, as

8 expressed in its pre-trial brief, that a minimum of 1.000 civilians were

9 injured or killed as a result of the unlawful sniping and shelling.

10 The evidence of Ewa Tabeau achieves that. The statistics go not

11 only beyond 1.000, but they are seen to be conservatively obtained. The

12 figures provided or referred to by Medecins Sans Frontieres accumulated

13 after the survey which was the basis of the Tabeau indicated a much higher

14 number. But it is ultimately of no consequence to the guilt or innocence

15 of the accused as to what the final figure is. Mr. Piletta-Zanin referred

16 to a table that indicated no deaths as a result of firing by the M84. And

17 indeed, that is the case. And there's a very low figure in terms of

18 civilian casualties, in the form of injured civilians, by that weapon.

19 But of course, it goes without saying that survivors and injured victims

20 themselves could not always be sure as to what type of weapon had resulted

21 in injury or death. And the sniping category in that survey was not

22 qualified in any specific way. Therefore, it is safe to assume that

23 casualties attributed to sniping, for instance, do not relate necessarily

24 to the use of just professional sniping rifles, but rather, various

25 infantry weapons including the M84.

1 Yesterday, Ms. Pilipovic referred to the evidence of Mr. Kupusovic

2 in relation to his observations in the pre-indictment period, although not

3 essential to the case against the accused, the Prosecution does stand by

4 precisely what it said in its written submissions. And if one consults

5 page 716 of the transcript, one will see there precise evidence by

6 Mr. Kupusovic along the lines of what was in the written submissions.

7 Yesterday and today, we've heard submissions in relation to another

8 witness which requires me to go into private session briefly,

9 Mr. President.

10 JUDGE ORIE: We'll turn into private session.

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14 [Open session]

15 MR. IERACE: In relation to the state hospital, the Defence said

16 that van Lynden said it was only shelled once. That was incorrect. He

17 did not. It then sought to isolate Ashton's evidence in relation to the

18 state hospital suggesting that he was the only one who said that it was

19 shelled on multiple occasions. That also is incorrect. One only has to

20 look at the evidence of Dr. Nakas, the administrator of the hospital, and

21 perhaps more significantly the evidence of Dr. Mendlovic who chose to stay

22 on at the hospital. He could have left Sarajevo, Serbian ethnic

23 background, but stayed on and worked throughout the indictment period.

24 And he spoke eloquently about the constant shelling of the hospital. A

25 number of individuals gave evidence about their direct observations of the

1 upper levels of the hospital watching the flashes of muzzles on the SRK

2 side of shells that impacted on the hospital or around it.

3 We heard evidence that two of the witnesses actually were able to

4 locate the source of the fire in terms of visiting the areas, van Lynden

5 in relation to where he spoke with General Mladic, and Ashton in relation

6 to positions he marked on one of his maps where he found the source of

7 anti-aircraft fire that used to hit the hospital regularly admitted.

8 Spahic, incident 9, the Defence says there was no shooting beforehand.

9 Incorrect. She said that the reason they went out that day was because

10 there was no shooting. Page 2.613. The Defence says why weren't bread

11 queues targeted? Because everyone knew where they were, humanitarian aid

12 handouts. Incorrect. The head of civil defence said that positions were

13 charged for that very reason, so as to minimise the chance of bred queues

14 being targeted. In any event, the objective according to the Prosecution

15 was to terrorise, not to kill every civilian in Sarajevo. And that was

16 achieved most successfully with indiscriminate shelling.

17 A further observation in relation to Ewa Tabeau's statistics, to

18 the extent there is a drop in civilian casualties, and that has been

19 explained by a number of factors, essentially anti-shelling, anti-sniping

20 techniques adopted not only by the UN and the local government

21 authorities, but by the civilians themselves. For instance, children in

22 particular being placed in basements. We heard from Medina Omerovic who

23 spent an appalling 12 months living in a basement with many other

24 families, one window, didn't save one of the other children in the

25 basement, though. A 10 year old who was shot outside her apartment when

1 he emerged from the basement. In relation to the correlation between

2 military and civilian statistics when one looks at the graphs, that is,

3 that civilian statistics would occur at about the same time as military

4 statistics in terms of high points, one has to recollect the evidence that

5 indiscriminate fire would be levelled at the city at the times of battles

6 in order to bring pressure on the presidency, and that indiscriminate fire

7 we heard resulted in civilian casualties. It cannot be assumed that it

8 related to combat battle. That is not the evidence.

9 We heard about Iraq and other battles. The principal distinction

10 is this: This was not a hot conflict with the exception of occasional

11 battles such as Zuc. This was a stalemate, and that is the evidence.

12 That word has been used by witnesses to describe it. One would not expect

13 from a stalemate situation the ratio and the figures that one obtains in a

14 hot conflict such as Iraq and other conflicts.

15 Symbolic targets, most of them had been destroyed by the time the

16 accused took over. The post office, the library, the parliament building,

17 the assembly hall. The Oslobodenje building was still standing; it had

18 not been completely shelled. It collapsed shortly after the accused took

19 over as a result of shelling in his period. Trams were very symbolic;

20 they were attacked. The old city area to the east was constantly attacked

21 through the accused's period. A highly symbolic area. The Defence

22 acknowledged the symbolism involved in hitting the matchbox building.

23 Mr. President, given the earlier intervention by the Defence, I'd

24 be grateful for an indication of how much time we have left.

25 JUDGE ORIE: You have still available seven minutes. And I

1 deducted four minutes for the procedural issue.

2 MR. IERACE: Thank you. Before I hand over to Mr. Mundis, just

3 briefly in relation to Richard Gray's evidence about the firing of the

4 mortars that landed near the presidency. Everywhere that his evidence

5 could be checked, either by reference to the video or the book by

6 General McKenzie or other sources, he was wrong, and he acknowledged

7 that. It was not possible to completely check him in relation to the

8 source of the mortar fire, but even so, he acknowledged that he was the

9 source of information for General McKenzie's account of that incident. He

10 was the only UN person present. He reported to General Mackenzie. That

11 was where General Mackenzie got his information. General Mackenzie did

12 not say in his book that the shot emanated from the presidency side. He

13 expressed some doubt about it. One infers directly from that that the

14 view expressed by Richard Gray in the witness box was not what he told

15 General Mackenzie. At that stage, he did not tell General Mackenzie that

16 he heard the shot being fired from the presidency side. To that extent,

17 we can check that. When one take into account those factors and his

18 general lack of credibility, that is not a good example of fire coming

19 from the Bosnian side.

20 Thank you, Mr. President. I hand over to Mr. Mundis.

21 MR. MUNDIS: Mr. President, Your Honours, several issues

22 concerning the law arose during the oral submissions of the Defence

23 yesterday, and I'd like to briefly respond to just a few of them. First,

24 with respect to Article 3 of the Statute, clearly if there's one legal

25 issue that's settled in the jurisprudence of this tribunal, it is that

1 Article 3 of the Statute is a residual clause covering any serious

2 violation of humanitarian law, be it treaty-based or customary law

3 entailing the individual criminal responsibility of the accused, the Tadic

4 jurisdiction --

5 THE INTERPRETER: Could counsel please slow down, please, when

6 reading.

7 MR. MUNDIS: The Tadic jurisdictional decision settled that.

8 With respect to cumulative charging, cumulative convictions which

9 the Defence alluded to at pages 41 and 42 of yesterday's LiveNote

10 testimony, again the Appeals Chamber has ruled on that and set forth a

11 test that is applicable in that, and I will specifically point to the

12 Jelisic appeals decision where the Appeals Chamber indicate had cumulative

13 convictions for offences under Article 3 and Article 5 of the Statute are

14 always permissible.

15 Next, the Defence particularly with respect to the terror count

16 undertook a textual analysis of the Prosecution's proposed elements of

17 those offences. Clearly, the Prosecution in setting forth those proposed

18 elements meant for them to be read together, that is, conjunctively in

19 that all of those elements must be met. And for the Defence to argue that

20 a threat is not necessarily unlawful in time of war, therefore, there was

21 no terror, the Prosecution would submit is an improper reading of the

22 proposed as we have set them forth in our brief.

23 Let me turn very quickly to the --

24 THE INTERPRETER: Could the counsel please slow down when reading.

25 JUDGE ORIE: I have to say that I'm urging the parties to finish

1 as quickly as possible. So I feel a bit guilty for it. But I might grant

2 one additional minute as I just did to the Defence as well. But if you

3 could accommodate the interpreters, Mr. Mundis.

4 MR. MUNDIS: Thank you, Mr. President.

5 With respect to the applicability of the additional protocols, and

6 in particular, additional Protocol I, as is clear from Prosecution Exhibit

7 58, the 22 May, 1992, agreement between the parties, they agreed that

8 notwithstanding the provisions of additional Protocol I and its general

9 applicability with respect to international armed conflicts only, the

10 parties specifically undertook an obligation to abide by the terms of

11 specific provisions within additional Protocol I. Those provisions being

12 set forth in that agreement and reiterated in the Prosecution's final

13 trial brief. The Prosecution position is quite clear that those

14 provisions were applicable on the basis of that special agreement. And in

15 addition, of course, those provisions that are specifically relied or

16 specifically set forth in that agreement, the Prosecution submits reflect

17 customary international law nonetheless. And the fact that the parties

18 agreed to abide by those provisions, notwithstanding the fact that it

19 appears to be an internal armed conflict is of no consequence given the

20 explicit agreement of the parties that they would abide by those

21 provisions.

22 Very quickly, with respect to the issue of proportionality, the

23 Defence repeatedly stressed that this was a situation involving urban

24 warfare, and that the civilian casualties were simply collateral damage.

25 The Prosecution would respectfully submit that that is not the end of the

1 analysis by any stretch of the imagination. This does not resolve the

2 issue; the fact that it was an urban conflict does not relieve the accused

3 or his subordinates of complying with the very specific provisions set

4 forth particularly in Articles 49 through 52 of additional Protocol I and

5 Article 57.

6 Finally, the Defence raised the issue as to in effect charging

7 policy of the Prosecution. That is, it's quite clear from the Tribunal's

8 jurisprudence, is improper. I would cite to paragraph 180 of the Celebici

9 decision in which case an accused unsuccessfully put forth a similar

10 argument. The fact of the matter is the Prosecutor has discretion as to

11 who she will bring charges against. The second part of that argument

12 clearly goes to an issue which the Prosecution has repeatedly raised;

13 namely, the improper use of a tu quoque defence. The Prosecution has

14 submitted in its written brief at paragraph 710 through 718 a discussion

15 of that issue. And the Prosecution will rely on its written submissions

16 to that effect.

17 JUDGE ORIE: Mr. Mundis, your additional minute has started

18 already.

19 MR. MUNDIS: Thank you, Mr. President. Finally, I think with

20 respect to the issue of charging and discretion with the Prosecution has,

21 Mr. Piletta-Zanin earlier today referred to history judging this

22 institution for its failures to charge individuals that Mr. Piletta-Zanin

23 thinks would be appropriate to be charged. Let me conclude by stating,

24 Mr. President, that this tribunal will be judged in history not on the

25 basis of any one individual case, but on the means by which the Prosecutor

1 exercises her lawful discretion with respect to the totality of the cases

2 which are brought before this tribunal.

3 JUDGE ORIE: Thank you, Mr. Mundis.

4 Is the Defence ready? Yes, Mr. Ierace.

5 MR. IERACE: Thank you, Mr. President. Mr. President, I did not

6 respond earlier on the issue of the witness that was brought into question

7 the nature of -- the status of his testimony.

8 JUDGE ORIE: Yes, it is confirmed to me by Madam Registrar that it

9 was in open session. But you disagree still?

10 MR. IERACE: Yes, I do.

11 JUDGE ORIE: Then we have to sort this out, not at this very

12 moment, at a later stage.

13 MR. IERACE: I would be grateful.

14 JUDGE ORIE: If everything has been checked, if necessary,

15 appropriate measures will be taken so that whatever may come to the public

16 will come to the public.

17 Ms. Pilipovic.

18 MR. PILETTA-ZANIN: [Interpretation] Mr. President, I provided the

19 registrar with the message a minute ago. She must have received it. I

20 don't have the figures present at the moment. But one part was, and I

21 wrote this down, one part was in closed session. That was the very first

22 part. And everything else was in open session.

23 JUDGE ORIE: Yes, Mr. Piletta-Zanin, as I told you, it will be

24 sorted out, and the appropriate measures will be taken.

25 Ms. Pilipovic, or Mr. Piletta-Zanin, are you ready to give your

1 final --

2 MR. PILETTA-ZANIN: [Interpretation] Yes, Mr. President, we are

3 ready. How much time do we have?

4 JUDGE ORIE: Half hour.

5 MR. PILETTA-ZANIN: [Interpretation] For as long as -- for today.

6 Can the time taken by the Prosecution, et cetera how much time do we

7 have.

8 JUDGE ORIE: The Prosecution took 30 minutes, and I granted one

9 additional minute. I have a question for the booth. Would it be

10 possible in order to finish the 30 minutes for the Defence by today that

11 we would finish at half an hour from now on?

12 THE INTERPRETER: Yes, that's not a problem, Mr. President.

13 JUDGE ORIE: The interpreters, at least the English booth has

14 confirmed that they will be willing to stay a little bit longer. So we

15 can use this...

16 So you've got 30 minutes.

17 MR. PILETTA-ZANIN: [Interpretation] Mr. President, just one

18 suggestion.

19 JUDGE ORIE: Yes, but discussing this sometimes takes more time.

20 MR. PILETTA-ZANIN: [Interpretation] Very well. 30 minutes. To

21 say the following: The Prosecution hasn't really replied to the essential

22 matters. And it's not only that they haven't replied to the essential

23 issues, but the Prosecution continues to follow the same route. It

24 affirms, and yet again, I have to repeat, this is not acceptable. They

25 affirm that we didn't produce documents to prove that the accused had had

1 investigations carried out. These documents have the following numbers,

2 with respect to the Radinovic expert report: D260, D245, D248, D255, and

3 D254. And of course, Mr. President, this is the best-off presented to

4 you by the Defence, but the best of also because the Prosecution doesn't

5 want to recognise the reality of these documents, the existence of these

6 documents. Why? Because they know that I will produce these documents.

7 The Prosecution isn't completely unenlightened with regard to this. And

8 they say, well, yes, Galic carried out investigations when he wanted to,

9 as he thought was appropriate, and in a certain sense it was a pretext for

10 other matters. Well, let's pause for five minutes and give thought to

11 this at the time. This was a time of war. No one knows who is going to

12 be victorious. No one knows who is going to lose the war. No one at the

13 time thinks about the constitution of a tribunal such as this one?

14 So why say these documents? Why say these documents, apparently

15 the beginning of a coverup, of a masquerade? Thank you. And secondly,

16 the Prosecution recognises, but barely, that not a single victim was

17 produced by the sower of death. What they forgot to say was that they

18 remained silent on this matter is that in its report, it says M84 and the

19 like, and other machine-guns. So where are all these civilian victims,

20 these civilian deaths, the civilians who were crossing the airport? And

21 we were told that they were fired upon from machine-guns at night as they

22 were crossing the airport. Where are all these victims? Well, the

23 Prosecution has proven to me that they quite simply don't exist. So as we

24 don't have that many civilians, we'll try and seek them among -- we'll try

25 and seek out UN personnel, and we'll say if there aren't any civilians,

1 they fired at UN personnel. Very well. The only evidence we have about

2 this, the real evidence, is that we have alleged from General Morillon

3 protesting about the Muslim party because they were targeted. We have the

4 cassettes from the Seva group that says that one French soldier was killed

5 by these Muslims forces although they wanted to protect civilians by the

6 alleged barriers. Why discuss something that isn't at the centre of the

7 debate. Why want yet again to concentrate on other matters in the debate

8 given that we know the shots, that perhaps occurred on the Serb side were

9 shots fired in response to fire coming from the surroundings of what we

10 have termed the PTT building here, from which General Karavelic's forces

11 operated. And on numerous occasions they were seen there. And that's

12 where they perpetrated their acts.

13 So isn't it easier to say, well, yes, you fired at the PTT

14 building, or at other buildings, you fired on the peace forces, but the

15 perspective should be a lot broader. It should be within the context of

16 a general investigation, and this has nothing to do with the alleged

17 civilian victims.

18 Very well. The Prosecution took note of certain historical

19 examples. They took note of the recent war, but that has nothing to do

20 with it. The fact that these extremely precise modern weapons, no one in

21 totally good faith ever said there was a US campaign to kill as many

22 civilians as possible, to terrorise the civilian population in Baghdad or

23 to empty the possessions of the museums in Baghdad. No one said that.

24 But when we have such precise weapons that result in so many victims, why

25 won't the Prosecution even discuss such consequences, the consequences of

1 collateral damage. I have never heard the Prosecution address the matter

2 of collateral damage on a single occasion. But he should examine things

3 of an exculpatory nature after all. If we know that there was, and we

4 know that the Prosecution has affirmed this, there was Muslim fire on the

5 interior of the city, if we know this, we can admit that that is a

6 possibility to have firing errors, in such case why would the Prosecution

7 persist in saying that there were 253 sniping cases whereas on the other

8 hand the Prosecution is aware of the fact that fire was opened that

9 resulted in losses, and this fire did not have its origin from General

10 Galic's troops. The origin of fire was in the interior. So does this

11 indicate there was an intention, and it is not only logic that points to

12 this intention, it's also the logic of justice and legal logic that points

13 to these conclusions.

14 As far as sniping rifles are concerned, we are told, it has been

15 proven that they existed. Very well. First of all, we are -- they quote

16 expert Radinovic, the Defence expert. But they forget to say that what

17 was said at the time, and my colleague Ms. Pilipovic has mentioned this,

18 Mr. Radinovic was speaking of the second half of 1994, and not of any

19 other period, not of any other matter. But then we are told yes, but a

20 witness saw rifles, and here at this point I would like to return to

21 private session. Are we in private session?

22 [Private session]

23 [redacted]

24 [redacted]

25 [redacted]

1 [redacted]

2 [redacted]

3 [redacted]

4 [redacted]

5 [redacted]

6 [redacted]

7 [redacted]

8 [redacted]

9 [redacted]

10 [redacted]

11 [redacted]

12 [Open session]

13 MR. PILETTA-ZANIN: [Interpretation] Witness D was a deserter.

14 And how reliable can the words of a deserter be. Not only was he a

15 deserter, but in addition, he was a mercenary in an army that wasn't his.

16 He said that he was a Croat. And he was there for personal reasons, his

17 personal benefit. It wasn't someone who was engaged because of under

18 threat. He hadn't been forced to do so. He was there, he was paid, and

19 he decided to engage himself. And he decided, well, this is bothering me,

20 this is disturbing, I'll leave. That was the morality, that was the

21 morality of this witness. But even if this witness may have seen snipers,

22 wouldn't it possible that the sniper would be targeting legitimate targets

23 on the other side? It doesn't mean that if I see a knife, it doesn't mean

24 if I see a knife, someone's going to plunge this knife into the body of

25 this person, and this is what the Prosecution has been doing. According

1 to this witness, one doesn't even realise that this witness is also

2 proving our positions.

3 D says that he observed mortar shells being fired by people -- by

4 men under the influence of alcohol. Very well. And he said "I felt bad."

5 Very well. So I said he felt about this. Did you report these facts to

6 your superior officers? Did you say "stop, I do not accept this morally

7 as a man. I have to report this." And then this mercenary witness, this

8 deserter, said: How can I report them because I was a Croat? Very well.

9 Who believe -- who wishes to believe will believe. But affirming this and

10 tendering this into evidence, what this proves is that there were cases,

11 possibly many cases, where soldiers were committing offences, perhaps, we

12 don't know, but they were not reporting these offences, and that is a

13 proven fact.

14 Somebody said, oh, yes, I know that this man fired, but he did not

15 report this to his superior, so how do you want this man who has got under

16 his command 20.000 men, how can he know everything that goes right to the

17 bottom of the chain of command? How does he know what a foot soldier is

18 doing if the hierarchy is not reporting this to him. In this case,

19 nothing was reported to General Galic. How can he conduct an

20 investigation if he doesn't know that something has happened. How is that

21 possible? And therefore, how can the Prosecution reproach General Galic

22 for not having carried out investigations? Theoretically this was not

23 possible for him to do. How can -- they can say when investigations were

24 actually proven to have existed, and then the Prosecution says these are

25 quasi investigations, these are just investigations to make them feel

1 better. These were just -- these were just dead pieces of paper that

2 meant nothing.

3 Now, let's go further. We're told that the matchbox building was

4 symbolic, and the Defence has admitted to this fact. Now, fortunately, I

5 now have to subject myself to a returnation of memory. I said -- I don't

6 remember that I said that. I said that was one facility, one building,

7 that could have been important, but I've always said that this was one of

8 the tallest facilities, possibly the tallest facility building in

9 Sarajevo. And it was the top floors that were hit. And the reason why

10 they were hit is probably, almost certainly, these floors were used for --

11 as firing positions.

12 Now, let us follow to the ground. How do you want a sniper to

13 fire from basement or from lower floors? He's obviously going to take top

14 floors of buildings, and obviously, when we have these top floors

15 attacked, then that is self-explanatory. Wishing to say that these Serb

16 responses against the matchbox or any other buildings would have

17 corresponded to the intent to destroy something that is symbolical, that

18 is simply insulting common sense and logic, because I'm reiterating, if we

19 wish to destroy something that is symbolic, then I'm going to try and

20 destroy something that is extremely important to my opponent. That is

21 going to be something that will hit at the heart of the civilian

22 population, that will hit at the heart of their faith, their religion. I

23 will destroy the museums, the religious facilities. I will destroy what

24 they value most. Again, where is the evidence of that there is none.

25 Let us go back to a hobbyhorse. This is another example that I

1 have to bring up here. When we are told that the shellings can be

2 explained by other things, obviously I am speaking about Wilhem de

3 Kostrowitsky and quoting a different passage, saying that the shells were

4 sounding above the city. And this, we are told, is that we are using the

5 tu quoque defence. Now, if we wanted to use this as tu quoque principle,

6 we were responding because we were being fired at. Or perhaps, I was

7 misunderstood and that I have to take this into account, that there is

8 this possibility that I was misunderstood. But this is false. I have

9 never, the Defence has never said we have a right because of tu quoque,

10 because they fired on us. If ever tu quoque was mentioned, that was in a

11 different context. Legally, the only thing we ever said was if the

12 Prosecution considered that the fact that they themselves believe is

13 established, the shelling of Nedzarici, Ilidza, firing on Grbavica, if all

14 of that is not a violation of the law of war, then tu quoque means for

15 you, too, for you, too, Galic. For the rest, it cannot be; otherwise, it

16 will be very hard to balance two legal terms, terms of justice.

17 So it will be one weight for those who have lost and one for those

18 who have -- who are triumphant. I believe I was very clear. Never has

19 the Defence used tu quoque as a kind of excuse. The simple reason is that

20 the Defence believes that they have a very different excuse that we will

21 try and explain to you.

22 I wish that we heard, maybe that will come, regarding the

23 exchanges of fire. At no point did I have anything that the Prosecution

24 said regarding the changes of fire. We were told no, no, it was a static

25 war. There were no exchanges of fire. How do you imagine that the people

1 were in combat on a daily basis as many witnesses characterise as being a

2 permanent, nonstop combat? There were infantry weapons inside the city,

3 in the streets. There was no street-to-street combat. There were

4 exchanges of fire and there were ricochets. Now, let us go back to the

5 logic. To justify the number of victims in the Markale market, the

6 Prosecution said yes, there were a number of them. You see, there were

7 many ricochets. There were many ricochets because of the metallic

8 structures of the stores, and there were many of them. There were many

9 elements, and this is contradictory but it doesn't matter. The

10 Prosecution tells us, this increased the number of victims because the

11 fragments would ricochet everywhere. But when the Defence says, too, but

12 bullets can ricochet everywhere, suddenly, no, that's not possible. No,

13 if it is exculpatory for General Galic, then it's not possible.

14 These stray bullets, these ricochets, that cannot happen.

15 However, the evidence is that the Prosecution is admitting in the Markale

16 incident that there were many ricochets. And if we say there were many of

17 them, why, why not take them into consideration for the cases that would

18 be exculpatory evidence for General Galic? This is one of those

19 mathematical unknowns that we were talking about. I haven't started the

20 very last minute, Mr. President. I would like to have the famous Tabeau

21 document on the ELMO, if that's possible, please.

22 JUDGE ORIE: That's certainly possible.

23 MR. PILETTA-ZANIN: [Interpretation] Thank you very much. With the

24 assistance of Madam Usher, because perhaps I will not be able to thank her

25 again, and now in the few minutes - thank you very much. Look at the

1 very first image. We don't have to zoom at all because we know this very

2 well. The highest line above is the Markale line. So there are two

3 things that are evident here. Never, never before have there been more

4 victims, and we can see that proportionally. Whether they were civilian

5 or military, it doesn't matter. But one should look at this very closely

6 and see the number of victims after February of 1994. So I'm going to

7 this one single question, when we know, and I quoted Mr. Tucker earlier,

8 there was a question at your -- there was an answer at your question,

9 Mr. President. When we know that several UN members had said in the

10 psychological structure, they could imagine, in the mental structure, they

11 could imagine there would be attack against them, there could be the

12 following situation, although we know at the time the Serbs had everything

13 to lose from such an attack.

14 And I'm asking the following question: Isn't it imaginable that

15 someone, no matter who, among the Muslim forces had decided to provoke an

16 intentional sacrifice of several dozens of victims, military and civilian,

17 knowing at that time that the peace will come from there. But not just

18 peace, but the military victory, political victory. And not just in

19 Sarajevo, but in the entire Bosnia. And I know the Prosecution said, oh,

20 well, that is far-fetched. How can one imagine that this was done?

21 People would know about it." So I said "very well. I don't have to be

22 trusted. That's normal." But let's look at history. Let's look at

23 Coventry. Coventry bombed, and Churchill knew, German secret, and he let

24 Coventry be bombed. And this was for strategic reasons that Coventry was

25 bombed -- allowed to be bombed. And this is absolutely possible. Look at

1 this diagram. Look at the figures. One thing: It is certainly not in

2 the Serb interest. That's number one. Number two, isn't it in the Muslim

3 interest? There are many other historical examples where during certain

4 dramatic moments in history, nations decide to sacrifice members of their

5 own nation. Why would that be not the case in Sarajevo equally, and why

6 would that not be the case when one of the parties, and the Defence has

7 proven this, not only this firing happened elsewhere, because Gray did

8 hear, and he repeated what he had heard, but other UN personnel said for

9 the most part that it was among them a commonplace thing that they knew it

10 was atop us [phoen], that Muslim forces could open fire on themselves, and

11 even on the cemeteries.

12 So Mr. President, I think that when one has a look at these

13 figures and one asks what the necessary distance from the events, asks

14 oneself certain questions and one tries to ask oneself the right

15 questions, one asks oneself: Well, what is a campaign, in fact? And if I

16 had the means, because I had the physical means of these weapons, these

17 M84 machine-guns, et cetera. If I have the means to carry out, to

18 implement my campaign, and I allegedly have Sarajevo at my mercy and

19 allegedly in a repeated and systematic manner I fire indiscriminately at

20 civilian areas, well, let's be logical. Wouldn't the extent of damage

21 have been far greater than the extent of damage presented to us? Wouldn't

22 there have been far more civilian victims, far more than the number

23 presented to us? When we compare this on our side, we see that the facts

24 are the same. Isn't this the clearest demonstration of the fact that

25 unfortunately what happened in Sarajevo, the dramatic events that

1 transpired in Sarajevo are exactly the same things that happened on the

2 other side, and this is quite simply called war. However, this is not

3 called a war which is conducted in a criminal and illegitimate manner and

4 within the framework of a campaign the objective of which is to inflict

5 terror on the civilian population.

6 One last matter before I enter into my last minute, Mr. President.

7 JUDGE ORIE: [Previous interpretation continues]...

8 MR. PILETTA-ZANIN: [Interpretation] I hear your reply.

9 JUDGE ORIE: [Previous interpretation continues]... Already your

10 last minute.

11 MR. PILETTA-ZANIN: [Interpretation] Thank you. My very last point

12 is that there is a saying that says "without the body of the crime, in

13 general, there is no crime." Because we can't find it in this case, the

14 body of the crime is terror, the Prosecution has told us. The greatest

15 crime was the crime of spreading terror. And the only thing the

16 Prosecution did not want to prove is the existence of terror. An expert

17 told us the following: "If the circumstances that I am presenting to you

18 are such that they would inflict terror, is terror the result of the

19 circumstances?" And you say that there were circumstances that such

20 terror would be created in such circumstances, then in that case terror is

21 present. There we have a hypothesis. We never convict on the basis of a

22 hypothesis. What we need is certainties, certainties, and certainties.

23 Thank you.

24 JUDGE ORIE: First of all, I would like to thank the flexibility

25 of those assisting us in the technical booth and the interpreters' booth,

1 not only for their flexibility but also for their accuracy they

2 demonstrated us always.

3 We'll adjourn until tomorrow morning, 10.30, Courtroom II. And

4 the parties should then be ready to answer whatever questions the Judges

5 might have.

6 Yes, Mr. Piletta-Zanin.

7 MR. PILETTA-ZANIN: [Interpretation] Mr. President, how much time?

8 JUDGE ORIE: That depends, of course, on the questions of the

9 Judges. And just as the Prosecution would like to have court over now to

10 prepare, we are in an ongoing preparation for our questions. I think it

11 will not take much time. My guess would be not more than one hour,

12 perhaps one hour and 15 minutes. But it always depends on the time the

13 parties take to answer those questions, because as you certainly know,

14 Mr. Piletta-Zanin, eloquence takes time sometimes.

15 [Trial Chamber confers]

16 --- Whereupon the proceedings adjourned at

17 1.58 p.m., to be reconvened on Friday, the 9th of

18 May, 2003, at 10.30 a.m.

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