Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8969

 1                           Monday, 16 December 2013

 2                           [Rule 98 bis Hearing]

 3                           [Open session]

 4                           [The accused entered court]

 5                           --- Upon commencing at 9.00 a.m.

 6             JUDGE DELVOIE:  Good morning to everyone in and around the

 7     courtroom.

 8             Madam Registrar, may we have -- could you call the case, please.

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

10     IT-04-75-T, the Prosecutor versus Goran Hadzic.

11             JUDGE DELVOIE:  Thank you.

12             Could we have the appearances, please, starting with the

13     Prosecution.

14             MR. STRINGER:  Good morning, Mr. President, Your Honours.  For

15     the Prosecution, Douglas Stringer, Sarah Clanton; the case manager,

16     Thomas Laugel.

17             JUDGE DELVOIE:  Thank you.

18             Mr. Zivanovic.

19             MR. ZIVANOVIC:  Good morning, Your Honours, for the Defence of

20     Goran Hadzic, Zoran Zivanovic, Christopher Gosnell;

21     Liane Aronchick, our legal assistant.  Thank you.

22             JUDGE DELVOIE:  Thank you.  We are here today to hear the

23     Defence's 98 bis submission, so who will take the floor?

24             Mr. Gosnell.

25             MR. GOSNELL:  Good morning, Mr. President.  Yes, indeed, it is

Page 8970

 1     me.

 2             Good morning, Your Honours, and good morning to everyone in and

 3     around the courtroom who have attended this trial from late in the autumn

 4     of last year.  And it's our firm conviction, Your Honours, that on any

 5     sensible, reasonable, and correct view of the totality of the evidence

 6     that none of the 14 counts against Mr. Hadzic have been proven in respect

 7     of any of the events alleged against him over a two-and-a-half-year

 8     period between 1991 and 1993.

 9             But, Your Honours, your task at the 98 bis stage, and our task in

10     attempting to assist you, is not to make submissions on a sensible,

11     proper, or correct view of the totality of the evidence.  Our only task

12     and your only task is to assess whether there is any evidence upon which

13     you could convict Mr. Hadzic of any of those crimes.  And we propose

14     today to focus our submissions accordingly, and those submissions will

15     come in two parts, Mr. President:  First, I propose to set out the law of

16     98 bis as best I understand it, and I will suggest to you in the course

17     of those submissions that Your Honours are not bound by the four corners

18     of the counts as articulated in the indictment in determining what

19     portions of this case to allow to proceed.  And I will show you that, in

20     fact, there is jurisprudence showing that indeed Trial Chambers have gone

21     within counts to examine whether or not there is a portion of a count

22     that may be permitted to proceed.  And I use the word "count" here

23     advisably because what I suggest to you is meant by the word "count" in

24     Rule 98 bis is not necessarily counts as defined by the Prosecution in

25     the indictment.  And I propose to set out for you the law and the logic

Page 8971

 1     behind that particular interpretation.

 2             And, Your Honours, after having presented that law, we will

 3     suggest that there are two areas in which counts should not be permitted

 4     to proceed in this case.

 5             And the first area is crimes alleged to have occurred in

 6     OG South.  And the crimes alleged to have occurred in OG South are

 7     actually in four areas, as charged in the indictment:  Lovas, Velepromet,

 8     Ovcara and Opatovac.

 9             And the second area where we suggest that charges should not be

10     permitted to proceed is in respect of crimes in Serbia for which the

11     Prosecution has not yet established that there is any application of

12     international humanitarian law or crimes against humanity to that

13     territory.

14             So, Mr. President, let's now look at the text of Rule 98 bis:

15             "At the close of the Prosecutor's case, the Trial Chamber shall,

16     by oral decision and after hearing the oral submissions of the parties,

17     enter a judgement of acquittal on any count if there is no evidence

18     capable of supporting a conviction."

19             Now, Mr. President, it's often been said in the jurisprudence and

20     I think it's obvious for those of us who has similar provisions in our

21     domestic systems that this is an efficiency mechanism designed to allow

22     Your Honours to remove charges when there is no real prospect of success

23     on those charges, and the efficiency aspect of that is that alleviates

24     the Defence of the need to call evidence in response to charges even if

25     it's believed that there is no evidence upon which a conviction could be

Page 8972

 1     sustained; nevertheless, the Defence often will call such evidence out of

 2     an abundance of caution.  And the 98 bis procedure allows Your Honours to

 3     examine the evidence and determine whether or not there is such a need.

 4             And secondly, it allows Your Honours to, even if no evidence is

 5     called by the Defence in respect of that particular charge, to eliminate

 6     it at this stage summarily because it simply has no merit.  And the first

 7     aspect of Rule 98 bis is that the 98 bis standard of no evidence capable

 8     of supporting a conviction applies to each element of the alleged crime.

 9     It applies to each element of the alleged crime.  There must be some

10     evidence capable of supporting a conviction which means that there must

11     be some evidence upon which Your Honours could find beyond a reasonable

12     doubt the existence of each element of the alleged crime.

13             THE INTERPRETER:  You are kindly asked to slow down for the

14     purposes of interpretation.  Thank you.

15             MR. STRINGER:  Excuse me, just while there is the brief pausing,

16     my deepest apologies to counsel, in the record which has moved past us

17     now on the screen, the court reporter did didn't get the location of the

18     fourth place where counsel had indicated the case should not move

19     forward, and I would appreciate if he could just indicate.  He had said

20     the four places in OG South:  Lovas, Velepromet, Opatovac, and what was

21     the last one?

22             MR. GOSNELL:  It was Ovcara, Mr. President.

23             MR. STRINGER:  Thank you.

24             MR. GOSNELL:  Now according to the Jelesic Appeals Chamber, which

25     is a decision from 2001, the test under 98 bis is whether there is

Page 8973

 1     evidence, if accepted, upon which a reasonably Tribunal of fact could

 2     convict; that is to say, evidence, if accepted, upon which a reasonable

 3     Tribunal of fact could be satisfied beyond a reasonable doubt of the

 4     guilt of the accused on the particular charge in question.

 5             Now, this is actually the language that is the precursor to what

 6     is now the language in Rule 98 bis, as it was amended in 2004.  And I say

 7     that because the key element is whether or not Your Honours could, not

 8     "will," could convict beyond a reasonable doubt.

 9             And if we go to the next slide, sometimes it's said simply that

10     there must be no evidence at all in respect of an element of a crime in

11     order to satisfy the 98 bis standard, but that's not quite correct,

12     Mr. President, I would suggest.  There must be no evidence supporting of

13     a particular count, that's one option; or, and this is from the Mrksic

14     case, if the only relevant evidence is so incapable of belief that it

15     could not properly sustain a conviction even when the evidence is taken

16     at its highest for the Prosecution.  And then we see a slight variation

17     on that from the Prlic Trial Chamber:  When there is no evidence of

18     sustaining a conviction, that's one option; or when there is evidence but

19     even when taken at its highest this evidence could not sustain a

20     conviction by the Trial Chamber; or when the only evidence available is

21     clearly unreliable or incapable of belief.

22             Now we say that that last statement is the most comprehensive and

23     correct articulation of the 98 bis standard, and that Your Honours should

24     not feel yourselves bound by some kind of cliometric analysis of whether

25     there happens to be a data point inside of a box in which crimes are

Page 8974

 1     measured against modes of liability.  Your Honours are permitted, even if

 2     you're not going to go so far as to examine a correct, sensible, or

 3     proper view of the totality of the evidence, you do have the discretion,

 4     and I suggest that it is appropriate for you to exercise that discretion,

 5     if you see the evidence now is not evidence upon which at the end of the

 6     case you could rely.  If you know that now, then you are permitted to

 7     discard that, and you are permitted now to say that that is not a

 8     sufficient basis upon which charges may be permitted to continue.

 9             And there will be occasions when that is the case, Mr. President.

10     There will be occasions, and we -- our submissions will reflect this.

11     There are occasions where evidence was heard in this court or where there

12     is a line from a document which may fall within the box of being

13     probative of one of the charges that we say should not be permitted to

14     continue, but Your Honours should not be bound to accept any level of

15     evidence that may have come before you.  You may look at the evidence and

16     decide that it is not a basis upon which you will be able to enter a

17     conviction.  And we say that that is perfectly within the spirit of

18     Rule 98 bis.  In fact, it would be contrary to the spirit of Rule 98 bis

19     if you were bound to allow charges to proceed whenever there is some

20     evidence, no matter how unreliable, no matter how tenuous in respect of

21     the fact that needs to be established, to say that that would be a

22     sufficient basis to proceed and that you would not have a discretion,

23     because that's what we are talking about here, a discretion to consider

24     whether or not the charges may not be allowed to proceed.

25             Now, how does this threshold apply in respect of a circumstantial

Page 8975

 1     case?  Because this is not an issue that has actually been analysed to

 2     any significant degree in previous case law.  It's one thing to say,

 3     Your Honours, that in respect of the judgement of acquittal standard

 4     where you have direct evidence, that as long as there is one item of

 5     direct evidence that is probative of the fact that needs to be proven,

 6     that's sufficient to proceed.  That's one case.  But isn't it another

 7     case, Your Honours, when you're dealing with circumstantial evidence

 8     where, after all, almost anything can be circumstantially probative of

 9     anything else.  The mere fact that Mr. Hadzic is present in eastern

10     Croatia can be invoked by the Prosecution as circumstantially probative

11     of various aspects of its case, and surely it's not sensible to suggest

12     that that is a sufficient basis far a charge to proceed.

13             But let's look at what is required of a circumstantial case at

14     the end of the day.  The standard is that:

15             "A Trial Chamber may infer the existence of a particular fact

16     upon which the guilt of the accused depends from circumstantial evidence

17     only if it is the only reasonable conclusion that could be drawn from the

18     evidence presented.  If there is another conclusion, which is also

19     reasonably open from the evidence and which is consistent with the

20     nonexistence of that fact, the conclusion of guilt beyond a reasonable

21     doubt cannot be drawn."

22             So the standard, Mr. President, is, in my respectful view, when

23     applied to a circumstantial case, is whether there is evidence capable of

24     excluding reasonable inferences inconsistent with the particular fact

25     required to be established.  Now the quotation has just disappeared from

Page 8976

 1     the screen, but it's down there at the last bullet.  And, Mr. President,

 2     I don't want there to be any confusion about this.  That's my submission.

 3     That's my crystallisation, I would suggest, of the law.  In respect of

 4     direct evidence, yes, a single piece of evidence is sufficient to allow a

 5     case to proceed if you think it is sufficient, if it is capable of

 6     proving the required element.  Circumstantial evidence, that's not the

 7     case.  It's not the case because it would be absurd.  It would mean that

 8     any disparate, tenuously connected fact to the element that needs to be

 9     proved would be sufficient to allow the case to proceed.  And that makes

10     no sense.

11             And what we suggest, Mr. President, again, and perhaps that is an

12     ode to discretion, you have the discretion to examine whether or not

13     there is a conjunction of evidence upon which, yes, on a summary review,

14     a cursory review, you can say to yourselves:  All of these facts in

15     conjunction might lead us to conclude that the element exists.  And that

16     is the inquiry, I suggest, that is before you at the 98 bis stage.

17             Now there is some evidence, I suggest, that Your Honours

18     intrinsically should and can at the 98 bis stage discard as not evidence

19     upon which you will be able to rely at the end of the day.  And the first

20     category of such evidence which is well-established in the

21     98 jurisprudence is "incapable of belief."  It's a broad category, a

22     broad definition, and it reflects, I suggest again, the discretion that

23     Trial Chambers have in assessing the evidence that's been brought before

24     them.  I would hazard two additional categories that I think fall within

25     the definition of incapable of belief, although I must say I'm not

Page 8977

 1     entirely sure that incapable of belief captures the totality of

 2     Your Honours analysis, and I would refer you back to the

 3     Prlic Trial Chamber's description which was that there be evidence upon

 4     which -- evidence which is clearly unreliable or incapable of belief.

 5             And evidence that is clearly unreliable, includes, I would

 6     suggest, Your Honours, evidence that is based on anonymous sources.  It's

 7     well-established in international human rights law and in many national

 8     systems that a conviction cannot be based on an anonymous source.  In

 9     fact, I would go further and say that an anonymous source, unless there

10     are very, very stringent guarantees, procedural or substantive, can be

11     accorded no weight whatsoever.  And Your Honours have heard some evidence

12     in this courtroom that was based on anonymous sources, upon which and in

13     respect of which the Defence has no opportunity at all to test.  And I

14     would suggest that it's well-established that Your Honours will not be

15     able to rely on that at the end of the day, knowing that that's the case

16     as a matter of law that at the end of the day, you cannot rely on

17     anonymous sources, I suggest, that it follows that halfway through the

18     day you have the discretion to consider such evidence to be manifestly

19     unreliable and not capable of sustaining proof of an element of a crime.

20             And the third area where I would say it's well-established that

21     evidence is not reliable to prove an element of a crime is where you have

22     uncorroborated hearsay.  And the way that this is usually formulated in

23     the case law, in judgements is that decisive weight cannot be placed on

24     hearsay.  So, Your Honours, I would suggest again that if we have an

25     occasion, if you see that there is evidence that is hearsay, fully

Page 8978

 1     understand that that is not categorically inadmissible, fully understand

 2     that hearsay can be part of the broader mix of evidence, perfectly

 3     appropriate to consider it within broader context of circumstantial

 4     evidence, that's all permissible.  And if Your Honours are in doubt on a

 5     cursory review of the evidence about the issue, then, of course, you can

 6     rely on hearsay evidence.

 7             But if you're in a situation where you see that there is a fact

 8     that depends solely on one piece of hearsay evidence, then Your Honours

 9     have a discretion to determine that that is not evidence upon which you

10     could sustain a finding of the existence of an element of a crime.

11             Now those submissions were all directed towards the issue of

12     whether there is evidence capable of supporting a conviction, those last

13     six words of Rule 98 bis.  And now I want to focus on the parameters of

14     your analysis and whether or not you are required to consider this issue

15     only in respect of the counts as defined in the indictment presented to

16     you by the Prosecution.

17             And let's really understand what's at stake here in practical

18     terms.  The Prosecution is permitted to produce an indictment, submit it

19     to a single Judge ex parte.  That indictment is either then confirmed or

20     rejected by a single Judge.  Based on my understanding, Judges - and

21     there is no criticism of this whatsoever - who are involved in the

22     process of confirming indictments do not require the Prosecution to put

23     the indictment in any particular form.  Basically, it's the Prosecution's

24     discretion to devise an indictment in whatever form it wishes.  And this

25     is different from some systems of law, of course, where an indictment is

Page 8979

 1     prepared by a judicial official based upon information provided by a

 2     prosecutor, or where a judicial official has a significant role in

 3     ensuring that the indictment is structured in a proper manner.  And when

 4     I say proper manner, I mean a manner that accords by whatever guidelines,

 5     rules, that are set out by the code of criminal procedure in that system.

 6     And of course, we don't have that here at the ICTY, and I'm not

 7     criticising, but what I am saying is that there is a -- this is a system

 8     which must be considered as a whole, and I would suggest that there is a

 9     relationship between the extent of discretion accorded to the Prosecution

10     in structuring its indictments and the extent of discretion that

11     Your Honours should give yourselves at the 98 bis stage in examining the

12     parameters against which you determine whether there is evidence that

13     should proceed.

14             And I'll start with a couple of examples to show how the

15     Prosecution exercises this discretion and how significant it is in

16     understanding how Rule 98 bis functions from case to case.  Now this,

17     Your Honours, is an extract from the Lukic indictment.  And all the

18     counts in the Lukic indictment are structured the same as this count that

19     I'm presenting to you on the screen.  And what we see in this -- in these

20     counts is that the crimes -- the counts are indeed crimes:  Count 6 is

21     murder and count 7 is murder.  So a count is defined as a crime.  And I

22     can tell you that elsewhere in this indictment, there are other counts

23     that also charge murder.  So again, the count is defined as a crime.

24             But look at how the counts are defined in relation to the charges

25     or allegations.  They are confined to a specific event.  And that means

Page 8980

 1     that at the 98 bis stage the Trial Chamber is analysing whether there is

 2     sufficient evidence upon which it could conclude that the accused are

 3     guilty of this event and equally in respect of the other events.  The

 4     Prosecution could just as well, assuming that it were to follow the

 5     format of this indictment, have had a long list of paragraphs in which it

 6     said, Here is incident one, incident two, incident three, incident four,

 7     incident five, incident six, and then at the end charged crime, the crime

 8     of murder, as a count.  At least that's what its purports to do.  And

 9     there is no one to say otherwise, Mr. President.

10             And that links back to what I was saying earlier.  The judges who

11     are examining these issues, I would suggest, are no instructing, at least

12     as far as I know, that indictments be restructured.  And yet I would

13     suggest that this is a considerably fairer indictment than the one that

14     has been alleged against Mr. Hadzic.  I don't say that the indictment

15     against Mr. Hadzic fails against the standards of the forms of pleading

16     that have been set out by this Tribunal.  Your Honours have already ruled

17     on that and I'm not suggesting otherwise.  What I am suggesting, however,

18     again, is that there is a relationship between the discretion that you

19     have and should exercise at the 98 bis stage and the manner in which an

20     indictment has been structured and pleaded.

21             Let's look at another example, one with which I believe at least

22     two of Your Honours are familiar.  And this is the Haradinaj indictment.

23     And again, this was an indictment that was structured throughout in the

24     same way as in respect of the counts you see on the screen in front of

25     you.  And we see crimes charged -- counts charged as crimes or crimes

Page 8981

 1     charged as counts in respect of individual events, and the entire

 2     indictment is structured in the same way.

 3             Now, how does Black's Law Dictionary define a count?  And again,

 4     we're talking about the use of the word in Rule 98 bis.  That's why I'm

 5     making these submissions about counts because it has to do with what we

 6     say is the proper interpretation of that word in Rule 98 bis.

 7     Black's Law Dictionary says that a account is:

 8             "The different parts of a declaration, each of which, if it stood

 9     alone, would constitute a ground for action, are the counts of the

10     declaration.  Used also to signify the several parts of an indictment,

11     each charging a distinct offence."

12             Now it's one thing to charge genocide and encompass a wide array

13     of distinct events, because the pattern, as the law suggests, can be

14     relevant to proving the elements of genocide.  The same is not true,

15     Mr. President, in respect of a crime like murder, which is sustainable in

16     respect of a single killing, as long as the elements are proven.

17     Equally, even in respect of extermination, there is case law about the

18     extent to which disparate events can be strung together in order to

19     sustain a charge of extermination.  And the bottom line on that

20     jurisprudence, as I understand it, is that there is a limit to which you

21     can string together disparate events in order to attempt to show that

22     there has been a collective killing that establishes the requisite

23     threshold for extermination.  And I would suggest that the disparate

24     elements that you see -- the disparate killings that you see in the

25     indictment against Mr. Hadzic go far beyond the extent that is permitted

Page 8982

 1     for determining a collective killing event under extermination.

 2             So what I'm suggesting to Your Honours, quite simply, is that

 3     there is no reason and no justification for not having charged separate

 4     killing events as separate counts, as was done in the Haradinaj and the

 5     Lukic indictments, and I would suggest that that would be a proper

 6     definition of the word "count."  Of course, the indictment against

 7     Mr. Hadzic says otherwise.  Of course it's not defined that way or

 8     structured that way because the Prosecution is not necessarily going to

 9     structure its indictments in a manner that is the most convenient or

10     helpful for the Defence, and nor is a Judge confirming an indictment

11     necessarily going to be inclined to intervene on such a matter at such a

12     stage without hearing submissions from the other side.  Perfectly

13     reasonable that that would be the case.

14             And here at the 98 bis stage, leaving aside pleading defects -

15     we're not saying it's a pleading defect - we're saying it's -- pleading

16     that is not optimally fair, which is a different thing.  But leaving

17     aside pleading defects, 98 bis is the first occasion that Your Honours

18     have to take a look at how you are going to interpret and address an

19     indictment in relation to the evidence heard.  And again, I'm suggesting

20     that these are reasons, this structure, this context, these are all

21     reasons why you can go towards not the counts in form but the counts in

22     substance.  And that's what I would suggest is meant by Rule 98 bis.  And

23     let's look precisely at how the wording of Rule 98 bis changed in this

24     regard in 2004.

25             And I would suggest, unfortunately, that the word change doesn't

Page 8983

 1     actually tell us very much about the issue before us.  The old wording of

 2     Rule 98 bis was:

 3             "The Trial Chamber shall order the entry of judgement of

 4     acquittal on motion of an accused or proprio motu if it finds that the

 5     evidence is insufficient to sustain a conviction on that or those

 6     charges."

 7             But the problem wasn't so much with the wording, the old wording

 8     of Rule 98 bis, it was rather that there was a divergence of practice as

 9     to how Rule 98 bis should be applied before 2004.  Because in some 98 bis

10     decisions, the Chambers evaluated on a paragraph by paragraph basis

11     whether or not the allegations had been proven, even if all of those

12     individual paragraphs were connected with, what I would say, is even a

13     single count in substantive terms.  So they were looking at material

14     facts, Mr. President.  And you can imagine how laborious that was,

15     particularly when the parties are allowed to offer written submissions.

16     And that's why in some cases, such as the Milosevic case, the 98 bis

17     judgement was in itself a mini judgement.  And this was certainly not in

18     the interests of efficiency.  And Judge Robinson, at the end of that

19     lengthy judgement, I would suggest, quite correctly criticised the extent

20     to which 98 bis had been hijacked and sent down the road of an analysis

21     of material facts.

22             And what he says as an antidote or offers as an antidote to this

23     is he says that:

24             "Consideration should be given to confining motions under

25     Rule 98 bis to submissions that are designed to eliminate a charge or

Page 8984

 1     count rather than individual allegations of fact relating thereto."

 2             So the distinction that's identified here by Judge Robinson is

 3     not between charges and counts.  He views them, at least in this

 4     particular sentence, as equivalent.  The issue is between counts or

 5     charges and material facts.  And Judge Robinson is saying that material

 6     facts are not an appropriate reference point for considering whether or

 7     not the 98 bis threshold is satisfied.

 8             Now, of course, at the end of this year, in 2004, Rule 98 bis was

 9     amended.  And as I understand it, Judge Robinson's opinions were very

10     relevant to that amendment.  And if we turn and look at one other

11     indication of legislative intent, if I can put it that way, because I

12     suggest that Judge Robinson's separate opinion is an indication of

13     legislative intent in respect of Rule 98 bis, and we have another

14     indication of legislative intent in respect of 98 bis, and this comes

15     from Judge Antonetti in the Seselj case.  And here he is in dissent, and

16     he says:

17             "The majority opinion is that it is not possible to enter a

18     judgement of partial acquittal based on the wording of this Rule.  I

19     disagree totally with their interpretation, all the more so since I'm the

20     co-author, together with another Judge, of the very wording of the new

21     Rule.  The purpose of this reform was never to make it impossible to

22     enter a decision of partial acquittal.  It would have been paradoxical

23     that the very purpose of this reform, which is to gain time, actually

24     would have reached the opposite result on the very ground that it is not

25     possible to enter a decision of partial acquittal.  It would be equally

Page 8985

 1     paradoxical to force the accused to adduce evidence whilst for specific

 2     counts or parts of counts the Prosecutor did not lead any evidence or

 3     because the evidence they have adduced is not sufficient."

 4             And then he goes on to suggest that there may be an issue of

 5     interpretation arising from the two equally authoritative languages.  Now

 6     what I understand Judge Antonetti to be referring to when he says

 7     "partial acquittal," and I think it's clear when you read it in context,

 8     he's referring to partial acquittal within an count, within an individual

 9     count.

10             Now, if you would not adopt this interpretation, if Your Honours

11     reject this interpretation, what are the practical consequences of that?

12     It means, and we can, in fact, take a look at our indictment, in -- for

13     example, in respect of count 3, murder, which is preceded by a whole long

14     list of individual events and killing.  It would mean that even if there

15     are 25, 30, 40 individual killing events pled in the indictment over the

16     course of years in entirely different geographic locations, committed by

17     totally different perpetrators with no apparent connection to one

18     another, totally distinction, disparate events, if you don't accept

19     Judge Antonetti's views on this, it would mean that if any one of those,

20     let's say hypothetically 50 - it's not that many here in our indictment,

21     but it's a couple of dozen - if any one of those has some evidence on

22     which Your Honour's could convict, it means that they all have to

23     proceed?  Your Honours don't have a discretion to consider whether those

24     events are interrelated?  Your Honours don't have a discretion to

25     consider whether some of them may fall within a discrete time-frame or a

Page 8986

 1     discrete geographic location?  Your Honours don't have a discretion to

 2     decide that that particular discrete identifiable portion should not be

 3     permitted to go forward, even though the consequence of that would be

 4     that evidence then needs to be called on all of the charges, even if

 5     there is no evidence.  And I use the word "charges" here as an equivalent

 6     to counts because I say that there is a difference between counts in

 7     substance and contents in form.

 8             And when you have an individual charge that is sufficient in

 9     itself to constitute a crime, that's a count, even if the Prosecution's

10     indictment is not structured that way.  And the efficiency consequences

11     of not accepting Judge Antonetti's view, I suggest, run directly contrary

12     to the purpose of Rule 98 bis, that is suggested there quite directly by

13     Judge Antonetti and more obliquely by Judge Robinson.  And by the way,

14     Judge Robinson himself, as far as I know, has never had occasion to

15     comment on this issue judicially because in Lukic you had an indictment

16     that was structured according to events.  Counts corresponding to events.

17             Is there practice to support what I'm saying as opposed to just

18     judicial statements or concurring opinions?  In the Stanisic and

19     Simatovic case, you have very broad counts, counts that encompass a

20     geographic spread and a temporal spread of events that is even broader

21     than in this case.  Now, in the result the Trial Chamber, after hearing

22     submissions only from one of the Defence teams, the Simatovic team,

23     allowed the entire case to go forward.  Nothing was rejected.  But that

24     was on a review of the evidence provided.

25             And how did it review the evidence provided?  Well, Your Honours,

Page 8987

 1     it reviewed the evidence provided according to its own analysis of what

 2     it considered to be geographically and temporally connected, which, by

 3     the way, was in the indictment itself, just not defined as separate

 4     counts.  And so the Chamber proceeded to analyse the sufficiency of the

 5     evidence under Rule 98 bis according to each of the three main geographic

 6     areas in respect of the charges.  So it analysed the sufficiency of the

 7     evidence in the SAO Krajina, in the SAO SBWS, and in Bosnia separately.

 8     It examined each of the counts in respect of each of those geographic

 9     regions.

10             Similarly in Karadzic, the Trial Chamber examined components,

11     so-called components of the case which, again, had no formal definition

12     in the indictment other than to examine and review the indictment and

13     identify which areas, geographically or temporally, should be connected,

14     and the evidence was also presented according to those components.  And

15     Their Honours in the Karadzic case separately analysed each of those

16     areas.  Now, if it simply had been a manner of counts -- and by the way,

17     we shouldn't confuse the issue in the Karadzic case, count 1, genocide in

18     respect of certain areas of Bosnia as distinct from count 2, genocide in

19     Srebrenica.  Of course the Chamber analysed those two counts separately.

20     I'm not discussing that issue.  This is a separate question of whether

21     the other charges, which were not broken out geographically, whether

22     those could be analysed separately.  And that's what the Trial Chamber

23     did.  If it had just been a question of saying, Well, is there some

24     evidence on the count in respect of any of the geographic areas, then the

25     Chamber wouldn't have had to analyse or structure its analysis according

Page 8988

 1     to this geographic and temporal definition.

 2             So what do we have in totality?  What can we draw from this

 3     practice and these statements?  I suggest there are two principles that

 4     emerge from the case law:  The first is that Your Honours do have a

 5     discretion to go beyond the counts as defined by the Prosecution.  That's

 6     clear from these examples and it's strongly supported by the statements

 7     made by at least two Judges.  And I would suggest that it is perfectly

 8     concordant and appropriate in light of the purpose of Rule of 98 bis.

 9     And then the question is:  If that's true, how should Your Honours

10     exercise that discretion.  How should you define the reference point of

11     your analysis?  And I would say that is a matter essentially for your

12     sound discretion.  And I would say you should guide your discretion

13     according to whether or not there are groups of events that you can

14     identify as significantly discrete, separate, distinct events that should

15     be analysed as such.  And that's what I invite you to do in respect of

16     our substantive submissions and the specific areas that we invite you to

17     take a look at.

18             And so now having set out, I suggest, the proper framework for

19     Rule 98 bis at this stage, we make our substantive submissions on those

20     counts that we suggest should not proceed.  And we suggest that counts 2

21     to 9 -- we submit that counts 2 to 9 should not be permitted to proceed

22     according to the standards of Rule 98 bis in respect of events in

23     OG South.  And the four events and the relevant portions of the

24     indictment are:  Lovas, paragraph 18 of the indictment; Velepromet on the

25     19th of November; the events of Ovcara on the 20th of November; and

Page 8989

 1     Opatovac.  And we also suggest that there is no sufficient basis for the

 2     case to proceed in respect of any and all crimes in Serbia.  And that's

 3     mainly counts 7 to 9.

 4             Now it might be helpful before reviewing the evidence to give a

 5     thumbnail sketch, by no means an exhaustive sketch, a thumbnail sketch of

 6     the cardinal elements of liability that would need to be established in

 7     order to find Mr. Hadzic guilty.  And at this stage, again, it's not a

 8     question of whether or not the evidence on a correct view establishes

 9     that to be the case, but whether there is some evidence, some reliable

10     evidence, upon which you could come to that view.  And what I have done

11     on this single slide is to attempt to crystalise, as I say extremely

12     briefly, the various modes of liability upon which Mr. Hadzic could be

13     found criminally responsible.

14             The first bullet point reflects JCE 1, and for that matter direct

15     commission as a whole; the second bullet point is JCE 3; the third is

16     aiding and abetting; and the fourth is superior responsibility.

17             It's important to remember that, and I'm sure Your Honours don't

18     need to be reminded of this, that JCE is a form of direct participation.

19     The intent required, the mens rea to find that a person is participating

20     in a JCE, is precisely the same mens rea as is required if a person

21     commits a crime on his or her own.  It's the same as if a person swings a

22     machete and commits a violent act against a victim.  That is the mens rea

23     threshold.  The unique aspect of JCE as a form of direct commission is

24     not in respect of the mens rea but in respect of the actus reus which is

25     diffused amongst different individuals.

Page 8990

 1             But that notwithstanding that same dolus directus that applies in

 2     respect of an individual committing a crime on his own or her own applies

 3     in respect of JCE, and that makes your task difficult, Mr. President,

 4     because in respect of an individual swinging a machete it's rather easy

 5     in almost all circumstances to draw the necessary inferences about

 6     mens rea.  In respect of an individual alleged to be participating in a

 7     common plan, a common criminal plan, the necessary mens rea inference is

 8     a lot more fraught and complicated.  But that mens rea standard is still

 9     there.  It's not less because the allegations that the crime is committed

10     through others.  And Your Honours know that the case law says that these

11     others and this enterprise can be quite broad.  There is no necessary

12     restriction on its scope, which again makes your task all the harder,

13     especially where, as here, we have such a broadly charged JCE.

14             What's more, and I say this is absolutely vital not only for

15     understanding the actus reus of JCE but also for understanding whether

16     and how Your Honours can draw the necessary inferences of mens rea, is

17     that the crime must be committed by other members of that common plan, of

18     that JCE, or it must be committed by individuals who are controlled by

19     other members of the JCE.  And that comes from the Brdjanin appeals

20     judgement.

21             Now it's very common, and Your Honours have seen this in previous

22     cases and there is no dispute about it, that organisational structures

23     can be a way through which these modes of liability are effectuated and

24     upon which inferences can be drawn about the necessary mens rea and about

25     whether or not a contribution was made to the crime.  But if an

Page 8991

 1     organisational structure is going to be relied upon to establish those

 2     elements, and we say that this is -- we're clearly in the realm of a

 3     circumstantial case here, then that organisational structure has to

 4     exist, and there has to be sufficient evidence for Your Honours to say

 5     that the organisational structure encompasses the crimes that are alleged

 6     against Mr. Hadzic, and if the evidence is not sufficient to establish

 7     that, then there is no liability, certainly on JCE grounds.  And so

 8     Your Honours inquiry, I suggest at this stage, is:  Is there evidence

 9     upon which you might be capable of determining that there was an

10     organisational structure involving Mr. Hadzic that also encompassed the

11     crimes that were committed in OG South.  Because that's the question that

12     we're bringing before you at this stage.

13             And I should add that what I'm about to say about OG South

14     applies elsewhere, but we consider that the evidence is very clear - and

15     I should say the lack of evidence is very clear - about the lack of an

16     organisational structure connecting Mr. Hadzic to any of the crimes that

17     were alleged to have occurred in OG South.

18             Equally in respect of aiding and abetting and superior

19     responsibility, these can be shown and effectuated through an

20     organisational structure.  But there, the level of organisational

21     structure, if anything, has to be even more distinct.  There has to be

22     some indication of specific direction of assistance to the crime.  And

23     that's always the connection, Your Honours.  That's always the

24     connection.  The connection between the accused and his actions and the

25     crime.

Page 8992

 1             And in respect of aiding and abetting, the question is whether

 2     his actions were specifically directed towards the crime and whether they

 3     made a substantial contribution to the crime.

 4             And then, of course, in respect of superior responsibility, I'd

 5     suggest the cardinal element, and the only one that I need to invoke at

 6     this stage is effective control, which implies a high level of

 7     connection, a high level of relationship, a relationship of

 8     subordination, obedience to orders between the perpetrator of the crime

 9     and the accused.

10             So what is OG South?  Now, we say that OG South existed certainly

11     no later than the end of September through, at the very least, the

12     24th of November.  We say that beyond that in one form or another.  But

13     it doesn't matter because one thing is clear, and I don't think it will

14     be disputed, is that OG South exists at the times that each of the four

15     crimes that we are saying there is no evidence to proceed on occurred.

16             If we can go to the next slide, Your Honours will remember this

17     map which was shown more than once.  And it indicates on the map where

18     OG South was located.  And OG South existed firstly as a matter of

19     military creation by the JNA.  They created OG South.  And they created a

20     hierarchy within OG south.  And that hierarchy and organisation was

21     reflective of reality on the ground; namely, that there was a physical

22     separation between the area south of Vukovar and the area north of

23     Vukovar in the sense that there were Croat forces in between up until a

24     certain date.  But even when that corridor to Vukovar had been

25     eliminated, OG South continued to exist.

Page 8993

 1             Now what is the scope and extent of that organisational structure

 2     that was set up by the JNA?  Well, very helpfully, and I commend the

 3     Prosecution for calling this witness, we heard from the person who was

 4     the head of what he described as the TO staff for OG South.  And he was

 5     appointed in October 1991.  He testified that he was "subordinated to the

 6     commander of OG South, Mr. Mrksic," throughout his tenure.  The second

 7     commander, Vujovic, was appointed by Sljivancanin or Mrksic immediately

 8     before the fall of Vukovar.  The headquarters of the TO staff of OG South

 9     was in Velepromet.  And he was asked by my learned colleague -- actually,

10     I have to retract that, I'm not sure whether it was a question by the

11     Prosecution or the Defence, but he was asked:

12             "Roughly how many village TO staffs were subordinate to you?

13             "A.  There were more than 20 villages and all the units that were

14     there, including Petrova Gora."

15             Now, that's the evidence of someone who really was in a position

16     to know, and who, by the way, there is no suggestion that I've heard from

17     the Prosecution or during its questioning, was biased or in any way

18     inclined towards Mr. Hadzic.

19             Now what is the evidence taken at its highest?  Taken at its

20     highest, what is the evidence showing that this witness, GH-012, who had

21     connections -- who was the commander, by his own account, the commander

22     of the TO staff of OG South, which encompasses at least 20 villages in

23     OG South, which at this time is physically separated from OG North, at

24     least in Croatia.  Now what is evidence, taken at its highest, of his

25     connection with anyone in the district government, let alone Mr. Hadzic?

Page 8994

 1     Well, he explains that he met at one stage, and I believe it is in

 2     September because this is in reference to whether or not he and his

 3     forces should join up with the JNA forces in an attempt to liberate the

 4     Vukovar barracks.  So that's the context of the first quotation.  So

 5     GH-012 says -- and by the way, Your Honours, you will remember that at

 6     least according to this witness that that occurred in September, at least

 7     the initial liberation.  And GH- 012 says that he met with Ilija Kojic

 8     who he believed and described as being the head of the Borovo Selo TO,

 9     which he described as "more organised" in order to "get to the corps

10     command through him."

11             Then they go together to see General Bratic in Novi Sad.  Now, by

12     the way, if I recall correctly, this is before GH- 012 is appointed to be

13     the head of OG South, and that's why they are going to see General Bratic

14     who, as you know, is not actually in the OG South formation, but that's

15     because this is occurring before the formation of OG south.

16             MR. STRINGER:  Apologies.  There may need to be a redaction

17     there.

18             MR. GOSNELL:  This is not a protected witness, Mr. President.

19             MR. STRINGER:  Okay, apologies.

20             MR. GOSNELL:  Now, at this stage, September 1991, GH-012 makes no

21     mention of the district government.  He doesn't appear to suggest that it

22     exists.  He mentions no affiliation of Mr. Kojic with the district

23     government.  No indication that the district government is providing

24     or -- any assistance or able to provide any such assistance.  The entire

25     encounter with Mr. Kojic is vis-à-vis his role as the leader of the TO of

Page 8995

 1     Borovo Selo in order to get in touch with General Bratic who, in turn,

 2     this witness expects to get in touch with the local JNA commander in his

 3     area around Vukovar.

 4             So that's the first indication, and I suggest that even taken at

 5     its highest, it shows no connection - organisational, ad hoc, or

 6     otherwise - between the district government and OG South.

 7             Now here's the witness talking about him being appointed, and

 8     Colonel Mrksic apparently putting some kind of restriction on him, and I

 9     put the entire quotation in here because I think the context is important

10     and because I expected the Prosecution in due course to perhaps point out

11     this particular section and I wanted to put it all in context.  And

12     GH-012 says:

13             "I was appointed TO Staff Commander, but I could not discharge

14     solely that duty.  Mrksic did not allow for that because then the

15     Petrova Gora unit would be without a leader."

16             Now let me stop there and indicate what I think the witness is

17     saying.  He's saying that Mrksic is complaining about the witness

18     double-hatting, being at one and the same time the commander of TO of

19     OG South and the commander of the Petrova Gora TO:

20             "He said that it was important for us to liberate Vukovar and

21     that the commander of TO staff was a political function and that we

22     should now focus on the liberation of Vukovar.  Consequently, I had to

23     stay with the Petrova Gora unit until the liberation.

24             "Q.  In what way is the TO Staff Commander a political function?

25             "A.  It was a political function because, let's say, the TO

Page 8996

 1     finances, equips, and appoints municipal TO commanders.  So it's not a

 2     military structure; it's a municipal/civilian structure.

 3             "Q.  And do TO staffs fall under a government institution; and,

 4     if so, which institution?

 5             "A.  They fall under the Ministry of Defence."

 6             Now, what exactly is Witness GH-012 saying here?  What does he

 7     mean when he says -- when he was asked the question:  "And do TO staffs

 8     fall under a government institution?"  Because that was the question.

 9     The question wasn't were you at the time under a particular government

10     institution.  It was a general question about TO staffs in general.

11     Based on what?  We don't know.  But I suggest from the entire context,

12     that what the witness is saying is that Mrksic, based on his

13     understanding of how TO staffs usually function, i.e., in peacetime and

14     before the conflict, it is the case that local TO staffs do have an

15     organisational connection with political authorities.  Not operational,

16     Mr. President.  Not an operational connection and not a command and

17     control connection.  And that was made clear by Witness Theunens.  This

18     discussion is an abstract discussion about the general situation of TO

19     staffs.  Not the situation that he may -- felt he had with the district

20     government of the SBWS.

21             And it's not even clear from this statement, Mr. President, and

22     it's a salient question to ask, which ministry of defence was he

23     referring to.  Was he referring to the SFRY?  Was he referring to the

24     government of Serbia?  None of that was clarified in this question and

25     answer.  And, Mr. President, this was a question that was asked during

Page 8997

 1     direct examination of the witness.  Then during cross-examination, the

 2     witness stated clearly the quotation from the previous slide, which was

 3     that he was subordinated throughout his tenure to Mrksic.  And there was

 4     no follow-up by the Prosecution.  They did not ask for a clarification.

 5     They did not say, But, Mr. Witness, you said during your direct

 6     examination that somehow you had some responsibilities vis-à-vis the

 7     Ministry of Defence.  What about that?  Those questions were not asked.

 8     The question was just left to stand, and I suggest that the question on

 9     cross-examination is the one that provides clarity and context for this

10     statement.

11             So we say that taken at its highest, at its absolute highest, and

12     this is from the key witness, Mr. President, taken at its highest this

13     shows no organisational connection between the district government and

14     the TOs in OG South.

15             And let's look at one other aspect of the evidence which helps

16     understand all this.  Because, Mr. President, I realise I may be

17     labouring to describe the evidence to you, and it may be as paradoxical

18     to you, why would I, in order to show that there is no evidence, be

19     discussing the evidence to such a degree?  And that would be a fair

20     question to ask.  And I do so because I think that there is a great deal

21     of evidence in this case that can be taken completely out of context and

22     that can be urged upon you as probative of an element of the crimes

23     charged or as establishing the modes of liability but which, in fact,

24     show no such thing at all.  And what I'm trying to do, Your Honours, is

25     to put that in context, to show you that that's the case in respect of

Page 8998

 1     many items of evidence that can be taken from here and there and

 2     presented to you and say, Oh, well, here, look at this connection.  But I

 3     suggest, Mr. President, that it's not capable of sustaining a conviction

 4     on these particular -- in respect of these particular events.

 5             And let's put this -- let's discuss context.  Because here is one

 6     document that's in evidence, it's an exhibit, that could be cited to say,

 7     Oh, look, look at the connection between OG South and the district

 8     government.  And this was the town commander of Ilok writing in

 9     December 1991.  And he says -- granted, this is late in the day, relative

10     to the crime events that we're describing, Mr. President, but it's not

11     atypical of the kind of material that can be found in the documents,

12     and -- which I suggest is largely highly ambiguous.  And what

13     Colonel Belic says is, in a letter to Mr. Hadzic, so it's an important

14     document:

15             "As you are not contesting the presence of the army in this

16     area," and this is around Ilok, and by the way there was evidence that

17     Belic was the commander not just of Ilok but he was responsible for

18     several villages in that area, "this leads to the conclusion that the

19     army is there not because it is a zone of combat activity and because it

20     is carrying out combat tasks but because you are graciously allowing it

21     to be there."

22             Now, one of the Prosecution experts, Dr. Nielsen, was asked about

23     this passage in cross-examination, and what he said, I think,

24     Mr. President, is highly significant.  He said:

25             "Well, it's -- it's -- to me it's a puzzling statement, not least

Page 8999

 1     because he then goes on to state that everyone knows that the army

 2     arrived before the authorities of the Serb district.  So I have no idea

 3     whether he is trying to sound facetious or not, but it is certainly the

 4     case that the army arrived in many cases before the district authorities,

 5     and this term of 'graciously permitting us to be there,' again, to me, it

 6     simply sounds facetious."

 7             Now, I suggest that even on a cursory view of what there is

 8     referred to as 65 ter 6059, but I do now it's also a Prosecution exhibit

 9     or a Defence exhibit, even on a cursory view of that document, it's clear

10     that it's not evidence capable of sustaining the view that the district

11     government is in any position of authority, first of all of the JNA, and

12     secondly of the TO staffs, the local TO staffs, and also the OG South TO

13     staff, in that area.  It doesn't prove that.  And Nielsen, who I believe

14     in this respect is absolutely correct and reliable, not only shows and

15     indicates that that's not true, not only is it not evidence of that, it's

16     evidence of the exact contrary.  This is a mere colonel, JNA colonel,

17     essentially mocking the president of the district government, being

18     facetious towards him.  And we say that that is a violate context, at

19     least for understanding this particular piece of documentary evidence.

20     It's not what it appears to be at face value even on a cursory view,

21     Mr. President.

22             Another example of that, Mr. President, is --

23             JUDGE DELVOIE:  Mr. Gosnell, we might have a problem if the

24     document and transcript references mentioned on your PowerPoint

25     presentations are not read into the LiveNote transcript.  Could you take

Page 9000

 1     care of that?

 2             MR. GOSNELL:  Mr. President, I'll find the reference and read it

 3     into the transcript.

 4             A second example, Mr. President, of what I say is this same

 5     phenomenon is a video for which I will also provide a transcript

 6     reference in due -- an exhibit reference in due course.

 7                           [Trial Chamber and legal officer confer]

 8             JUDGE DELVOIE:  Mr. Gosnell, we are not sure that we understand

 9     each other.  It's a general, general issue.  It's about the references

10     that we can see in the PowerPoint presentation, but that we will lose,

11     after hearing, if they are not read into the transcript.  Thanks.

12             MR. GOSNELL:  I entirely see the point, and I will consider the

13     matter at the break, if I may, and determine a manner in which that can

14     be done.  If I may, conveniently, Mr. President.  And thank you for that,

15     Mr. President.

16             Now, what is the other example of what I say is the same

17     phenomenon, and I say it is a highly significant example because the

18     Prosecution has attempted to rely on this particular piece of evidence,

19     and undoubtedly they will do so on Wednesday, and it's the video of

20     Mr. Hadzic standing in Sid on the 20th of November saying, late in the

21     afternoon, early evening of the 20th of November, I may need to correct

22     myself on the exact time, Mr. President, but in any event it's on the

23     20th of November, and he arrives in Sid, and he says on the video that

24     prisoners should be returned to Vukovar for trial.  And the Prosecution

25     has referred to this video repeatedly, for various reasons, perhaps.  But

Page 9001

 1     there is one thing that it doesn't show, I suggest, Mr. President.  It

 2     certainly doesn't show that at that time - or for that matter at any

 3     other time - the district government had custody over the prisoners whom

 4     it wished to return for trial in Vukovar.

 5             And why can I say that, Mr. President?  Why can I say that?

 6     Because none of them were returned.  And that was what Mr. Hadzic was

 7     speaking about.  He was speaking about the return of prisoners who had

 8     been taken to Serbia.  None of them were returned.  None of them came

 9     back.  None of them came back and stood trial.  There is no evidence that

10     that occurred at all.  So that being the case, that there is no evidence

11     of that having occurred, then the statement doesn't show authority.  It

12     doesn't show an organisational control over events in OG South in any

13     degree.  Those prisoners were all in the custody of JNA throughout the

14     time that they were arrested, detained, marshalled in various locations

15     including Velepromet, the Vukovar barracks, and the Vukovar hospital, and

16     then taken either to Serbia or, for some unfortunate ones, Ovcara.  And

17     that all occurred in the custody of the JNA, as I'm going to discuss

18     further.

19             The point is that video does not show any organisational

20     connection between what is going on in OG South and the

21     district government, let alone a connection to Mr. Hadzic himself

22     either -- and this is where we come back to the modes of liability,

23     either that he is controlling events to a degree sufficient for

24     Your Honours to conclude that crimes being committed in OG South are with

25     his knowledge, that he intends those crimes, or that he is making a

Page 9002

 1     substantial contribution to the crimes.  To say nothing, that he is --

 2     would be alleged to be specifically directing assistance to those crimes.

 3     The organisational connection, again, often relied upon as the basis for

 4     these modes of liability, it's absent.  There is not basis to sustain a

 5     conviction on that ground.

 6             Now, Mr. President, if it's convenient, can we perhaps take the

 7     break now?

 8             JUDGE DELVOIE:  Yes, Mr. Gosnell.

 9             Court adjourned.  We'll come back at 11.00.  Thank you.

10                           --- Recess taken at 10.27 a.m.

11                           --- On resuming at 11.01 a.m.

12             JUDGE DELVOIE:  Please proceed, Mr. Gosnell.

13             MR. GOSNELL:  Thank you, Mr. President.  And with the Court's

14     indulgence, I will now go back and ensure that I have the references to

15     jurisprudence and the record that I neglected to refer to explicitly, and

16     I apologise for that.

17             So with your forbearance, the first reference concerned

18     evidence -- whether there is evidence in respect of each element of the

19     alleged crimes, and the reference there is to Stanisic and Simatovic,

20     transcript page 11465; Gotovina, transcript 17599; Mrksic,

21     transcript 11312.

22             The paragraph of the Jelesic appeals judgement referred to was

23     paragraph 36.

24             The standard of no evidence capable of supporting a conviction,

25     the references were to Mrksic, transcript page 11312; and Prlic,

Page 9003

 1     transcript page 27206.

 2             The reference to the standard for proof by circumstantial

 3     evidence was the Bagosora appeals judgement at paragraph 515.

 4             The reference concerning hearsay is a decision of the

 5     Appeals Chamber in the Prlic case dated the 23rd of November, 2011, and

 6     that's paragraph 53.

 7             The parts of the Lukic indictment referred to were counts 6

 8     and 7; and of the Haradinaj indictment counts 3 and 4.  The Milosevic

 9     judgement of acquittal decision was on the 16th of June, 2004,

10     Judge Robinson's separate opinion, paragraph 17.  Judge Antonetti's

11     separate opinion is reflected at the transcript of the Seselj case at

12     page 16901 to 16902.

13             The analysis of individual geographic and temporal areas in

14     respect of counts occurred in the Stanisic and Simatovic case; for

15     example, at transcript pages 11472 to -473, 11474, and 11476.  And in the

16     Karadzic case, at 28734 and following pages.

17             The definition of OG South provided in the Theunens report, which

18     is P1753, is in part 1, page 8.

19             The references to GH-012's testimony, his appointment is

20     described at 7061 and 7063, his subordination is mentioned add 7114.  The

21     appointment of the second commander, Vujovic, is described at 7072 to

22     7073, as well as at transcript page 4563.  The fact that the headquarters

23     is in Velepromet was at transcript page 7063, and the number of villages

24     subordinated to him is mentioned at transcript page 7063 and 7068.

25             The discussion of the evidence taken at its highest encompasses

Page 9004

 1     two reference, the first at transcript page 7049 and then at 7063.

 2     That's in respect of OG South.  The document from Colonel Belic to

 3     Mr. Hadzic is P1731, page 1.  Correction there, the letter is actually

 4     P1962 and the video to which I made reference of Mr. Hadzic is P1731,

 5     page 1.

 6             Now did I say before the break, Mr. President, that there was no

 7     evidence of OG South being encompassed within the structures of the

 8     regional government.  I may have said that and that would not have been

 9     entirely incorrect because, after all, you remember that there was

10     GH-0168, a witness whose testimony, I submit, could not help but recall

11     the fable of the Dutch boy sticking his finger in the dike.

12             Now it's not a pleasant thing to have to tell Your Honours that a

13     witness came into court, took the solemn declaration, and lied to you

14     with a straight face, but that's what happened, I submit.  And I submit

15     that there are very clear indications that he did so, at least in respect

16     of any aspect of his testimony that touched on what he perceived to be

17     the relative responsibility of the JNA for the crimes that are the

18     subject of this indictment, and the district government, and Mr. Hadzic.

19             Now this is a protected witness, Mr. President, so I must be very

20     careful, and out of an abundance of caution it might be prudent to

21     briefly go into private session.

22             JUDGE DELVOIE:  Private session, please.

23             THE REGISTRAR:  We are in private session, Your Honours.

24                           [Private session]

25   (redacted)

Page 9005











11  Pages 9005-9009 redacted.  Private session.















Page 9010

 1   (redacted)

 2   (redacted)

 3   (redacted)

 4   (redacted)

 5   (redacted)

 6   (redacted)

 7   (redacted)

 8                           [Open session]

 9             THE REGISTRAR:  We're in open session, Your Honours.

10             JUDGE DELVOIE:  Thank you.

11             MR. GOSNELL:  Now let's look at the individual villages in

12     OG South, at least OG South as it was defined by GH-012, and the

13     allegations and the counts in respect of each of those villages.

14             At paragraph 21 -- or, excuse me, indictment paragraph 26, which

15     relates to counts 2, 3, and 4, and then paragraph 41(m), relates to

16     counts 5 through 9.  And let's go to the next slide, please.

17             Now, what was the evidence about who was responsible?  Well, let

18     me put it a different way:  Who directly perpetrated the crimes in Lovas?

19     Well, the main evidence was that Ljuban Devetak, Milan Radojcic, and the

20     Dusan Silni Detachment were involved in the crimes that occurred in Lovas

21     village, and that included the minefield incident about which I'm sure

22     Your Honours recalled the testimony.  But what was said in the evidence

23     about who is there, who is actually controlling these events?  Who is

24     organising them, who possesses authority, what organisational structure

25     is there?

Page 9011

 1             Well, GH-102 indicated at P50, Exhibit P50, paragraph 152:

 2             "It is difficult to know how many JNA soldiers were deployed in

 3     Lovas, but I noticed that they controlled everything."

 4             P296, which is from GH-134, paragraph 6:

 5             "Radojcic ... as far as I was aware his uniform was regular JNA

 6     and not reservist.  There were three stars on his epaulettes."

 7             And then I suggest that this was a vital concession by the

 8     Prosecution expert, military expert.  And I see embedded in this

 9     quotation there is a reference to P378, Exhibit P378, upon which

10     Mr. Theunens comment at transcript page 4572, and at the beginning there

11     is a quotation which is read to Mr. Theunens, which reads:

12             "'Civilian authorities have not been established to date in the

13     town of Ilok or the villages of Sarengrad, Mohovo, Opatovac, Lovas, and

14     Bapska ...'"

15             And then the question:

16             "Q.  Let's just stop there.  Assuming that that pronouncement --

17     well, whether that pronouncement is correct or not, the consequence of

18     his statement," and this is Colonel Milan Belic, writing on the

19     9th of December, 1991, "that there are no local authorities is that the

20     town command still exercises civilian control over those towns, right?

21             "A.  Yes.  Actually, that the town command -- the military town

22     commander is still responsible for conducting civil affairs in these

23     towns."

24             Now let's go to the next page and try to look at the evidence at

25     its highest about Mr. Hadzic's connection to these events.  And let's

Page 9012

 1     bear in mind, Your Honours, that it's not simply sufficient to say, Well,

 2     these are the same crimes being committed elsewhere in SBWS.  That's not

 3     enough.  Because as Brdjanin says, at paragraph 430, what's required for

 4     a finding that a person is a participant in a JCE is that "the criminal

 5     purpose," and I'm quoting here, "the criminal purpose is not merely the

 6     same but also common to all the persons acting together within a joint

 7     criminal enterprise."

 8             So it's not enough to say, Well, maybe there is evidence that

 9     Mr. Hadzic was involved with some very bad people in OG North.  Here we

10     see very bad people also operating in OG South committing the same

11     crimes; therefore, they're in the same JCE.  That's not sufficient,

12     Mr. President.  It must be the same JCE.  It's not just that they are

13     identical common criminal purposes, or that the plans are similar.  The

14     common criminal purpose, those who are participants in the crime, who

15     committed these crimes in Lovas, they have to be part of the same

16     criminal plan with Mr. Hadzic.  That's the vital point.  That's an

17     element, I'd suggest, of what's required to be proven by the Prosecution

18     both as a matter of mens rea and actus reus.

19             Now, what does the evidence show at its highest in respect of the

20     crimes in Lovas village which occur in October, about a month before

21     Vukovar falls?  And that's an important fact.  The crimes alleged in the

22     indictment, the killings, the minefield incident, occurs a month before

23     Vukovar has fallen.  Now, GH-102, who was certainly not the most

24     favourable witness to Mr. Hadzic, said that Mr. Hadzic only visited Lovas

25     after this incident occurred, because GH-102 says that he arrived after

Page 9013

 1     the Lovas minefield incident occurred and that he only saw Mr. Hadzic

 2     there after that date.  So there is no indication of Mr. Hadzic and no

 3     evidence in this case of Mr. Hadzic having been in Lovas either

 4     contemporaneous with these events or before these events.  There is no

 5     indication of that.  No evidence of that.

 6             Ljuban Devetak, what's his connection potentially with the

 7     structures of the district government?  Well, he allegedly, according to

 8     one witness, attended the meeting at Velepromet -- and let me just go

 9     back and say that the reference to GH-102's testimony is at paragraph 150

10     of his 92 ter statement which I will provide a reference for shortly.

11             Ljuban Devetak, according to GH-028, at transcript page 6420,

12     allegedly attends the meeting at Velepromet on the 20th of November.  But

13     there is no evidence as to what he was doing there, why he was there, who

14     he spoke to, whether he spoke with Mr. Hadzic, whether he had any

15     position at all in the authorities of this district government.  And

16     Your Honours know, you've heard evidence that there were - and this is

17     from Witness Nielsen, who said that, Yes, there were instances where

18     individuals were walking around appropriating titles for themselves,

19     positions representing that they had certain authority when, in fact,

20     there was no foundation for that.  The witness's indication that

21     Ljuban Devetak is merely present more than a month after the minefield

22     incident at a meeting in a room where Mr. Hadzic is also present is in no

23     way probative of an indication that Mr. Hadzic has any responsibility,

24     knowledge, or contributed to that crime in Lovas.

25             GH-027, now he said:

Page 9014

 1             "... when operations were over in Vukovar ... they," and I'll say

 2     "they," it's a reference to the civilian authorities at large or

 3     generally, he wasn't very specific, anyway, "they," because here we're

 4     looking at the evidence in its highest, "... they established some town

 5     commands of their own," and then he refers to Devetak.  And that's GH-027

 6     at transcript page 7956.  Again, this is after the fall of Vukovar, more

 7     than a month after the minefield event and long after the abuses or the

 8     unlawful detentions that are described in the indictment.

 9             At transcript page 2831, GH-024 says that Bogic met Devetak at

10     some unspecified date, and GH-024 also says that he did not know whether

11     Mr. Hadzic was aware of the Lovas minefield incident.  Now, even assuming

12     that there is some potential association between Mr. Hadzic and

13     Mr. Bogic, there is no indication that Mr. Bogic shared any information

14     about this incident, much less that Bogic was the conduit for conveying

15     any instructions that would have contributed to this crime.  There is no

16     indication of that whatsoever.  And even if you were not to close the

17     door on that and say, Well, this is just the 98 bis stage, even if you

18     were to say that, there is no indication as to when this meeting occurs.

19     No suggestion in the evidence that it occurs contemporaneous with or

20     before the crimes alleged in the indictment.  And we say that that's a

21     precondition for finding liability on this ground -- for this crime.

22             It says there on the slide that GH-012 makes that statement --

23     that might be GH-102, and I'm come back to Your Honours to verify the

24     accuracy of that reference.  But in any event, I do believe it was at

25     P50, paragraph 149.  He did not learn of the incident until later, after

Page 9015

 1     the event occurred.  And that's someone who would have been in a position

 2     similar to Mr. Hadzic in terms of knowledge of these events in OG South,

 3     which, again, at this time is physically cut off from OG north.

 4             Velepromet, Mr. President.  The allegations are set out in

 5     paragraph 31 and 41 -- 41(j) and paragraph 39 of the indictment.  The

 6     essence of the crimes at Velepromet is that interrogations were conducted

 7     there in the course of which individuals were beaten, insulted, or

 8     otherwise mistreated.  At least 17 were shot dead at Velepromet.  And

 9     that's on or about the 19th of November.  The evidence heard in the case

10     suggested it was in the days preceding, leading up to the 19th, and the

11     19th, but certainly didn't occur after noon on the 20th of 1991.

12             Now, what's the evidence about who is at Velepromet during these

13     events?  Well, the evidence was that the Vukovar TO is still subordinated

14     to the JNA as of the -- up until at least the 21st of November, 1991.  We

15     say beyond.  But there can't be any doubt that at least up until the

16     21st of November they were still subordinated to the JNA, and that's

17     P1995.1981, in which we see orders being issued to them, and Theunens

18     confirmed that at transcript page 4561.

19             Very shortly before these events, the commander of the TO

20     Vukovar, as he's described, Vujovic, is appointed by Mrksic or

21     Sljivancanin.  The only debate, apparently, appears to be which of the

22     two appointed him, whether it was Mrksic or Sljivancanin.  And the

23     sources for that can be found in Jaksic's testimony at 7072 to 7073 and

24     Theunens's testimony at 4561.

25             To the extent it's relevant, it's also clear from P1995.1981,

Page 9016

 1     that Leva Supoderica, that unit, is also subordinated to the JNA up until

 2     at least the 21st of November, 1991.

 3             The evidence at transcript page 8960 was that JNA soldiers were

 4     bringing detainees to Velepromet during those days.

 5             GH-063 at transcript page 8674:

 6             "JNA military police was in charge of guarding us."

 7             Military police were present upon the arrival of prisoners,

 8     that's P3000, which is a 92 ter statement with a transcript, and the

 9     transcript page is 6359.  Those military police or other JNA soldiers or

10     reservists were present at Velepromet, we say, fully in control of

11     Velepromet throughout those days.  And to the extent that there were TO

12     individuals there, they were subordinated to the JNA.  That was their

13     headquarters.  And it was the headquarters of the man who had been

14     appointed by Mrksic and/or Sljivancanin.

15             Of course there were rabble who came in there, but if a rabble

16     came in there and committed crimes, a facility like that, as Your Honours

17     have seen, that was with, at the very least, the acquiescence of the JNA

18     and those under its authority and subordinated to it.

19             All of the crimes, at least according to the evidence, happened

20     before that meeting that occurred at Velepromet sometimes on the

21     20th of November, and there is no evidence of Mr. Hadzic being at

22     Velepromet before that time or having any knowledge of what's going on

23     there.  And it's not just that.  There is no indication that he has any

24     effective control, no organisational power over anyone who's in

25     Velepromet committing those crimes.  And that's the essence of it,

Page 9017

 1     Mr. President.  There has to be that evidence somewhere.  There has to be

 2     evidence that he knows -- starting with knowledge, there has to be

 3     knowledge that these crimes are taking place or will take place.  He has

 4     to have at least an awareness that that's going to occur, and if he

 5     doesn't, then there cannot be liability for those crimes.  It's really as

 6     simple as that.

 7             Now, Ovcara.  Now, the vast majority of the victims at Ovcara, as

 8     the evidence showed, did indeed come from Vukovar hospital.  And the

 9     allegation in the indictment is that the forces present at Ovcara hangar

10     on the 20th of November beat and tortured the victims for hours, before

11     then transporting them to a remote location towards Grahovo farm where

12     260 were shot and killed and then interred in a mass grave.  And that's

13     appropriately charged not only as extermination and murder but also other

14     crimes including imprisonment, torture, inhumane acts, and cruel

15     treatment.

16             Now, what's the evidence about how those victims ended up in that

17     mass grave?  Well, first of all, the transport to Vukovar hospital was

18     ordered and supervised by Sljivancanin, using JNA and TO forces, as well

19     as volunteers.  That's at P1040, paragraph 100.

20             And Your Honours will also remember Dr. Bosanac's testimony about

21     that; in particular, what kind of people were performing this task under

22     Mr. Sljivancanin's direction.

23             At P1981, paragraph 38, and GH-80, transcript page 3334, we know

24     that it was the military police of the JNA who escorted the victims from

25     the hospital to the JNA barracks, and that then it was the JNA military

Page 9018

 1     police who escorted those victims as prisoners from the JNA barracks to

 2     Ovcara.

 3             At P1981, which is GH-110's 92 ter statement, at paragraph 42, we

 4     know that there were several dozen TO soldiers present in Ovcara at that

 5     time, but the number that he estimated to be there of TO soldiers was 35.

 6     The testimony there was that Vujovic, Vujovic, Miroljub Vujovic, the man

 7     appointed by Mrksic or Sljivancanin was in command of those TO elements

 8     at Ovcara.  And there we see the references indicating that.  Again, it's

 9     Jaksic at transcript page 7072 to -73; Theunens, 4563; Theunens 4561.

10     There were JNA officers at Ovcara during the beatings and inhumane

11     treatment of the victims, including Major Vukasinovic and another

12     unidentified colonel and other members of the Guards Motorised Brigade as

13     well as, yes, civilians and volunteers.  And that's at P1981, GH-110,

14     paragraphs 38, 42, and 46.

15             And how did GH-110 sum up the situation at paragraph 47 of P1981:

16             "The presence of the soldiers of the 1st gmtbr in the hangar led

17     me to conclude that the 1st gmtbr was in charge of the operation."

18             And let's remember the context in which this transfer at Ovcara

19     takes place.  Thousands of prisoners are being taken in the custody of

20     the JNA in what can only be described as a massive operation from Vukovar

21     to Serbia.  They have got custody of them.  That's what they are doing.

22     That's their task.  They are not handing custody over to others, although

23     they are co-opting those under their control to perform and assist with

24     that massive operation.  And Ovcara, in every detail, in every

25     indication, is identical to those other movements in terms of who is

Page 9019

 1     doing the guarding, the vehicles that they are transported in, the

 2     timing, who is commanding it.  There is no difference between that

 3     operation in Ovcara and all the other JNA removal operations of prisoners

 4     except, regrettably, and tragically, for the fate of the victims.

 5             Now, after these beatings during the day on the 20th, how was it

 6     that they met their terrible fate?  Well, according to GH-080, a reliable

 7     and important witness, at least in respect of his account of his

 8     transport:  The evacuation from the Ovcara hangar after dark on

 9     20 November was supervised by "the man with the whistle," at 3364, who he

10     previously described at 3349, as "a man, stocky, with a mustache, wearing

11     a JNA windcheater with a rank insignia and a whistle, and with that

12     whistle he somehow supervised those people."

13             Pressed on the issue of the vehicle -- by the Prosecution,

14     pressed on the issue of the kind of vehicle he was transported in from

15     the Ovcara hangar to the mass grave -- towards the mass grave, he

16     insisted it was "undoubtedly a military vehicle."  And he was asked more

17     than once about that.  And that he was transferred -- and that the people

18     driving that vehicle were soldiers.  And a further indication:

19             "Q.  ... did you see JNA members with white belts?

20             "A.  I believe that those people took us from the hangar, but I'm

21     not sure at this moment."

22             Now, what is the evidence of Mr. Hadzic's connection with this

23     event?  What evidence is there of his knowledge that this event was going

24     to occur?  What basis is there for saying that Mr. Hadzic would know that

25     this particular group would be diverted from the course of all the other

Page 9020

 1     prisoners who were sent to Serbia?  What basis of knowledge is there for

 2     him to know that they are going to be diverted from that, sent to Ovcara,

 3     beaten, abused, and killed?  There is no basis, Mr. President.  There is

 4     no basis to suggest that he knew that that was going to happen.

 5             Now, the Prosecution, of course, is going to rely on the

 6     statements made in Sid and the tenor of the government's meeting in

 7     Velepromet which, yes, occurs at roughly overlapping time-periods, let's

 8     say, and timing is an issue in this case, so I -- but I'm not going to

 9     make any specific submissions on that, but the mere fact that there is a

10     meeting going on in which there is a discussion as to how alleged war

11     criminals should be tried, amongst those prisoners, by whom they should

12     be tried, and where, is not evidence that goes to his knowledge of a

13     massacre that day.

14             And this goes back to the submission I made at the beginning

15     about circumstantial evidence.  Yes, in a -- on the most bare bones

16     definition of circumstantial evidence, is that circumstantial evidence?

17     It can't be gainsay, Mr. President, because the definition of

18     circumstantial evidence is so open jawed and flexible, and there is

19     nothing wrong with that.  But at the 98 bis stage, it's not just whether

20     there is some evidence that's out there that can be classified as

21     circumstantial evidence; therefore, you get over the 98 bis hurdle.  I

22     think Your Honours should feel free and open to analyse whether, even

23     viewed in conjunction of all the other evidence, there is any possibility

24     that you could exclude the possibility that Mr. Hadzic -- a reasonable

25     possibility that Mr. Hadzic doesn't know that that event is going to

Page 9021

 1     occur.

 2             And if there is no evidence on which you can foresee that

 3     possibility, then you should not allow this charge to go forward.  You

 4     should enter a judgement of acquittal in respect of Ovcara.  Not only is

 5     that a matter that would be efficient, not only would it accelerate

 6     proceedings and relieve the Defence of the opportunity to bring evidence

 7     in respect of a charge that is manifestly -- an account that is

 8     manifestly unproven, it also assures that a man charged with a crime, for

 9     which there is no credible basis, does not have to suffer under the cloud

10     of that charge any longer.  And I suggest that Your Honours have more

11     than adequate discretion to look at that evidence and determine whether

12     you see any path going forward for a conviction for the events at Ovcara.

13             Opatovac.  Now at paragraph 41(k), the crimes of imprisonment,

14     torture, inhumane acts, and cruel treatment are alleged in respect of

15     various forces allegedly engaging in those crimes in the police station

16     in Opatovac.  And the evidence has come up there in a single block.  And

17     the evidence about who the perpetrators are and what they do is, in a

18     broad view of things, as follows:  The initial assault on Opatovac leads

19     to "Serbian reservists entering the village together with the JNA," and

20     those who do the initial beatings and detaining at the Dom Kultura have

21     "a white belt."  That's GH-085 at transcript page 8537 and 8538.

22             The individuals running the TO, according to Witness GH-061,

23     at 8623, are from Belgrade because of their accent.  They are not locals.

24     They are from Belgrade.  And those are the individuals who are in

25     residence occupying the local commune office.  GH-061, who sought a

Page 9022

 1     travel pass to leave Opatovac at a certain time, as described at 8633 to

 2     8634, observed that it was the JNA military police who, on that occasion,

 3     instructed those local TO personnel to issue the pass.

 4             And then, finally, we come back to the quotation from

 5     Mr. Theunens in respect of the document in December by Mr. Belic,

 6     Colonel Belic, saying that there are no civilian authorities in place in

 7     Opatovac in early December, which means by default that it's the JNA town

 8     commands that are in control of civilian affairs in Opatovac.  That's the

 9     Prosecution's own witness, Mr. President.

10             Now, we say, again, coming back to what I called earlier the

11     cardinal elements of the modes of liability charged in respect of the

12     specific incidents of abuse or mistreatment or detention in Opatovac,

13     where is the evidence that Mr. Hadzic intended those crimes?  Where is

14     the evidence that those crimes were encompassed by a joint criminal

15     enterprise of which he is a member?  It doesn't come through the

16     organisational structure, Mr. President.  That evidence isn't there.

17     There is no connection between Mr. Hadzic's office as president of the

18     district government and the people who were committing these crimes or

19     the people who are criminally liable for these crimes.

20             The evidence not only is devoid of that, it shows what the

21     organisational structure is.  And this is all Prosecution evidence,

22     Mr. President.  These are all Prosecution witnesses who provided this

23     evidence about what structures were in place, who was doing what.  And I

24     suggest to you that it's not enough to rely on abstractions and

25     speculation about, for example, the place that the JNA may play -- the

Page 9023

 1     role the JNA may play in some, what I suggest is an entirely

 2     unsubstantiated JCE emanating from Mr. Milosevic.  Because at the end of

 3     the day isn't that the panacea JCE that could be relied on, to say, Well,

 4     these are all moving components of a vast JCE whose purpose is to bring

 5     about Greater Serbia?

 6             Well, again, Mr. President, I take you back to the 98 bis

 7     standard of circumstantial evidence.  It's simply not enough, in my

 8     submission, that there be jots of evidence about Greater Serbia or jots

 9     of evidence about the role of the president or jots of evidence as to how

10     President Milosevic might be at the pinnacle of some overarching

11     structure or scheme that somehow connects Mr. Hadzic with these

12     individual crimes in Opatovac.  If the evidence is there, and if it's

13     enough for you to say, Well, at the end of the day, there is sufficient

14     evidence here to exclude the reasonable possibility that Mr. Hadzic

15     doesn't know about that, then allow the charges to proceed.  You can do

16     that.  But I say you also have a discretion to say this evidence, even

17     taken at its highest, isn't going to be able to exclude that possibility.

18             Crimes in Serbia.  Counts 5 to 9 of the indictment, when read in

19     conjunction with paragraphs 41(a) to (d), allege certain crimes as having

20     taken place in Serbia.  And the question is -- the question raised by

21     that is:  On what basis is international humanitarian law, the law of

22     armed conflict, extended to the territory of Serbia, and, equally, by

23     what -- on what basis or on what theory are crimes alleged under

24     Article 5, which must be in armed conflict, to -- on what basis are they

25     extended to the territory of Serbia?

Page 9024

 1             Now the question arises because based on a -- what I would

 2     suggest is a conventional view of the law of internal armed conflict, the

 3     principle is that liability and the scope of IHL extends to crimes

 4     committed in the territory of the country where that armed conflict is

 5     taking place, if that conflict is characterised as internal.  And here we

 6     have a quotation from the Tadic jurisdiction decision of the

 7     2nd October, 1995.  And admittedly, Your Honours, it's addressed to a

 8     different issue.  It's coming at it from the other point of view.  It's

 9     inquiring whether or not crimes need to be committed on the battlefield

10     in order to fall within the scope of IHL, or can it be committed further

11     away from the battlefield and still be subject to that body of law.  But

12     in answering that and addressing that issue, the Appeals Chamber said:

13             "... we find that an armed conflict exists whenever there is a

14     resort to armed force between States or protracted armed violence between

15     governmental authorities and organised armed groups or between such

16     groups within a State.  International humanitarian law applies from the

17     initiation of such armed conflicts and extends beyond the cessation of

18     hostilities until a general conclusion of peace is reached; or, in the

19     case of internal conflicts, a peaceful settlement is achieved.  Until

20     that moment, international humanitarian law continues to apply in the

21     whole territory of the warring States or, in the case of internal

22     conflicts, the whole territory under the control of a party, whether or

23     not actual combat takes place that."

24             Now it's not our position, and I don't want Your Honours to

25     believe it's our position, that international humanitarian law cannot

Page 9025

 1     extend beyond necessarily -- cannot necessarily extend beyond the

 2     territory of a state where an internal armed conflict is taking place.

 3     It is possible to have spillover, and that is recognised in the doctrine.

 4     But if there is spillover, Mr. President and Your Honours, then it must

 5     be shown that there is an armed conflict that extends outside of that

 6     territory.  There must be proof that the armed conflict indeed does spill

 7     over.  If it doesn't spill over and if there isn't evidence of that

 8     spillover, then we suggest that the Tadic statement is the default

 9     principle and the default rule, that in an internal armed conflict, the

10     skoal scope of IHL extends only to the territory of the state where that

11     armed conflict is taking place.

12             Now just as an aside, Mr. President, it's noteworthy that there

13     is no characterisation of the armed conflict in the indictment, and I

14     didn't hear a characterisation during the opening statement, and I

15     haven't heard a characterisation taken throughout the Prosecution case.

16     And there is a statement from the Hadzihasanovic case, from the

17     21st of February, 2003, from the Appeals Chamber, paragraph 12, it's

18     decision pursuant to Rule 72(E) as to validity of appeal, and one of the

19     interesting statements in this decision is that following the withdrawal

20     of both the Article 2 charges -- and let me just stop there.  Article 2,

21     of course, concerns grave breaches of the Geneva Conventions, and that

22     applies only in international armed conflicts, and let's be clear that

23     it's not charged in this case, so I'm not -- there is no issue of

24     Article 2 in this case as such.  And that's not why the quotation is

25     relevant.

Page 9026

 1             Following the withdrawal of both the Article 2 charges and the

 2     express allegation in the original indictment that the armed conflict was

 3     international in character, the prosecution should not be permitted to

 4     rely upon the imprecision of its current pleading in order to put forward

 5     a case that the armed conflicted was international in character without a

 6     further amendment to its indictment to make this expressly clear.

 7             So the position that seems to be set out in that decision, which

 8     may or may not derive from the fact that Article 2 charges were dropped

 9     previously from the indictment, but leaving aside that potential

10     explanation, the principle that seems to flow from this statement is that

11     where an armed conflict is not characterised in an indictment, that the

12     presumption is it's an internal armed conflict.  That's what this

13     decision appears to be saying.

14             So on what basis is the Prosecution contending that IHL extends

15     to Serbia?  And there is a lot of moving parts here, Mr. President.

16     First of all, we say it's not enough to just say, Well, there is evidence

17     of an armed conflict.  That's not enough.  There has to be evidence that

18     explains either how the internal armed conflict has expanded to encompass

19     the territories of an adjacent state, or to indicate how the elements for

20     an international armed conflict are satisfied, and to argue that that is

21     indeed the characterisation of the conflict being proffered.

22             Now, I don't know if that is the characterisation of the conflict

23     being proffered, and there may be evidence to sustain it, but the

24     Prosecution has an obligation, even at the 98 bis stage, to indicate what

25     evidence it is relying on to assert either that there is a spillover of

Page 9027

 1     an internal armed conflict, or that the conditions for establishing an

 2     international armed conflict exist.  And amongst the elements that would

 3     have to be shown, at least as relevant to this case, is that Croatia is a

 4     state at the relevant times.  And the Prosecution would have to establish

 5     that element, that Croatia is a state, for the purposes of determining

 6     the application and the characterisation of the conflict.

 7             And just to graphically represent this issue, Mr. President.  If

 8     it's an internal armed conflict, the scope of application, presumptively,

 9     is Croatia.  If the conflict is international between Serbia and Croatia,

10     then the scope of application would be as represented on the screen,

11     extending to the entire territory of Serbia.  And by the way, that's also

12     particularly relevant, Mr. President, because at least one of the

13     detention facilities is very, very far away from the border, hundreds of

14     kilometres.  So it's not just a theoretical thing to ask how exactly does

15     the armed conflict extend the scope of international humanitarian law to

16     abuses, because that's what's charged in the indictment, to abuses that

17     occur at a prison hundreds of miles, not just from the theater of

18     conflict, hundreds of miles from the state in which the internal armed

19     conflict is taking place.  What's the element?  What is the evidence that

20     is being relied on to support a characterisation of the conflict which

21     extends international humanitarian law to such a prison?

22             And I'll suggest a third option, of course:  Let's say that

23     Croatia is not a state at the relevant times, maybe the Prosecution's

24     view is that there is an internal armed conflict in the SFRY, in which

25     case IHL would apply throughout the territory, according to the learning

Page 9028

 1     of Tadic, of the former SFRY, as it now is known.

 2             Mr. President, I see the break is upon us, and I've completed my

 3     submissions.

 4             Again, to recap:  This is a broad case with a broad scope

 5     with 14 charges, two and a half years, the entire territory that at any

 6     time was autonomous from Croatia in 1991 to 1993.  And it's a

 7     circumstantial case.  We have not challenged at the 98 bis stage every

 8     single crime.  We have not challenged every single event that could be

 9     characterised as a count.  We have challenged what we believe as

10     genuinely not been the product or shown to be provable based on the

11     evidence presented in this case.  And part of that, Mr. President, is

12     because this is fundamentally a circumstantial case, a case that is based

13     upon a conjunction of factors.  And if Your Honours, based on a review of

14     the conjunction of factors that we've set out in respect of the specific

15     crimes that we have identified, find that there is no path to conviction,

16     then you may acquit.  You may acquit on those specific charges, on those

17     specific counts, and that's what we ask you to do.

18             Thank you, Your Honours.

19             JUDGE DELVOIE:  Court adjourned until Wednesday, 9.00.

20                           --- Whereupon the hearing adjourned at 12.15 p.m.,

21                           to be reconvened on Wednesday, the 18th day of

22                           December, 2013, at 9.00 a.m.