Tribunal Criminal Tribunal for the Former Yugoslavia

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 1                          Tuesday, 4 December 2007

 2                          [Appeals Hearing]

 3                          [Open session]

 4                          [The appellants entered court]

 5                          --- Upon commencing at 8.33 a.m.

 6            JUDGE POCAR:  Good morning, everybody.

 7            Madam Registrar, can you please call the case.

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

 9    IT-01-47-A, the Prosecutor versus Enver Hadzihasanovic and Amir Kubura.

10            JUDGE POCAR:  I thank you.

11            May I ask Mr. Hadzihasanovic and Mr. Kubura if they can hear me

12    and follow the proceedings through the translation.

13            THE APPELLANT HADZIHASANOVIC: [Interpretation] Good morning,

14    Your Honours.  Good morning to all in the courtroom.  I can hear properly

15    and I understand everything.  Thank you.

16            JUDGE POCAR:  Thank you, Mr. Hadzihasanovic.

17            Mr. Kubura.

18            THE APPELLANT KUBURA: [Interpretation] Good morning, Your Honours.

19    I can hear you and I can understand the interpretation.

20            JUDGE POCAR:  I thank you.

21            Now may I ask for the appearances for Mr. Kubura first.

22            MR. IBRISIMOVIC: [Interpretation] Good morning, Your Honours.  For

23    the Defence of Mr. Kubura, Mulalic Nermin, Rodney Dixon, and my name is

24    Fahrudin Ibrisimovic.  Thank you.

25            JUDGE POCAR:  I thank you.

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 1            For Mr. Hadzihasanovic, please.

 2            MS. RESIDOVIC: [Interpretation] Good morning, Your Honours.  For

 3    the Defence of General Hadzihasanovic, Edina Residovic and -- as lead

 4    counsel, and Stephane Bourgon as co-counsel.  Thank you.

 5            JUDGE POCAR:  I thank you.

 6            May I turn to the Prosecution.

 7            MS. McCALL:  Good morning, Your Honours.  For the Prosecution, my

 8    name and Shelagh McCall.  The counsel with me are Steffen Wirth,

 9    Barbara Goy and Marwan Dalal, assisted by our case manager, Sebastiaan van

10    Hooydonk.

11            JUDGE POCAR:  I thank you.

12            Now, this is the appeal hearing in the case of the Prosecutor

13    against Hadzihasanovic and Kubura.

14            At the outset, I will briefly summarise the appeals which are

15    pending for the Appeals Chamber and the manner in which we will proceed

16    today.

17            The appeals deal with the superior responsibility of

18    Mr. Hadzihasanovic and Mr. Kubura for their failure to prevent or punish

19    the crimes of units subordinated to them committed in the Republic of

20    Bosnia and Herzegovina in 1993.

21            Enver Hadzihasanovic, Amir Kubura, and the Prosecution appeal from

22    a judgement rendered on 15 March 2006 by Trial Chamber II, composed of

23    Judge Antonetti, presiding, and Judges Rasoazanany and Swart.

24            The Trial Chamber found General Hadzihasanovic guilty pursuant to

25    Article 3 of the Statute for having failed to prevent or punish the

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 1    offences of murder committed by his subordinates in Bugojno and at the

 2    Orasac camp, count 3; and cruel treatment committed by his subordinates at

 3    the Zenica music school, at the Orasac camp, and at the various detention

 4    centres in Bugojno, count 4.  The Trial Chamber acquitted Hadzihasanovic

 5    on all other counts.  The Trial Chamber sentenced Hadzihasanovic to a

 6    single term of five years imprisonment.  Hadzihasanovic seeks the reversal

 7    of the convictions against him.

 8            The Prosecution appeals against -- appeals against the sentence

 9    imposed on Hadzihasanovic.

10            The Trial Chamber found Kubura guilty pursuant to Article 7(3) of

11    the Statute for having failed to prevent or punish plundering, committed

12    by his subordinates in Vares and in the villages of the Ovnak area, count

13    6.  The Trial Chamber acquitted Kubura on all other counts.  Kubura was

14    sentenced to a single term of imprisonment of two and a half years.

15    Kubura has appealed his conviction and sentence.  The Prosecution has

16    appealed his acquittal for the crime of wanton destruction in the town of

17    Vares in October 1993 and the sentence.

18            Amir Kubura and Enver Hadzihasanovic filed their Notice of Appeal

19    respectively on 13 and 18 April 2006.  On 22nd January 2007, Kubura filed

20    his appeal brief.  On 5 February 2007, Hadzihasanovic filed his brief

21    confidentially.  Together with annexes which were themselves refiled on 27

22    February 2007.  The Prosecution filed its Notice of Appeal on 18 April

23    2006 and its appeal brief on 3 July 2006.

24            I will now briefly summarise the grounds of appeal.  Amir Kubura

25    brings three grounds of appeal.

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 1            In his first ground of appeal, Kubura alleges that the Trial

 2    Chamber committed errors of fact and law in convicting him for failing to

 3    take necessary and reasonable measures to punish plunder in the villages

 4    in the Ovnak area in June 1993.

 5            Under his second ground of appeal, Kubura alleges that the Trial

 6    Chamber committed errors of fact and law in convicting him for failing to

 7    take necessary or reasonable measures to prevent punish plunder in Vares

 8    in November 1993.

 9            Under his third ground of appeal, Kubura submits the Trial Chamber

10    erred in exercising its sentencing discretion by imposing a sentence of

11    two and a half years of imprisonment.

12            Hadzihasanovic brings five grounds of appeal.

13            In his first and second grounds of appeal, he alleges that the

14    Trial Chamber committed numerous errors of law and fact which deprives him

15    of his right to a fair trial.

16            Under his third ground of appeal, he alleges that the Trial

17    Chamber committed errors of fact and law by finding that he failed to take

18    necessary and reasonable measures to punish those responsible for the

19    murder of Mladen Havranek and the cruel treatment of six prisoners at the

20    furniture salon of 5 August 1993, as well as to prevent similar behaviour

21    in the other facilities in Bugojno.

22            Under his fourth ground of appeal, Hadzihasanovic alleges that the

23    Trial Chamber committed error of fact and law by finding that he failed in

24    his obligation as a superior to take necessary and reasonable measures to

25    punish the perpetrators of the infliction of physical violence at the

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 1    Zenica music school and prevent similar behaviour.

 2            Under his fifth ground of appeal, Hadzihasanovic alleges that the

 3    Trial Chamber committed errors of fact and law by finding that he failed

 4    to take necessary and reasonable measures to prevent the murder of

 5    Dragan Popovic and the cruel treatment committed between 19 and 31st

 6    October 1993 by members of the El Mujahedin Detachment.

 7            The Prosecution brings four grounds of appeal.

 8            In its first and third ground, the Prosecution alleges that

 9    Hadzihasanovic and Kubura's sentences respectively are manifestly

10    inadequate.

11            Under its second ground of appeal, the Prosecution appeals

12    Kubura's acquittal under count 5 regarding the crime of wanton destruction

13    in Vares in October 1993.

14            And finally, under its fourth ground of appeal, the Prosecution

15    alleges that the Trial Chamber committed an error of law by finding that

16    the superior's duty to punish could be discharged by summary disciplinary

17    measures.  Although it concedes that this error would not have an impact

18    on the verdict, the Prosecution raises it as an issue of general

19    significance to the jurisprudence of the International Tribunal.

20            Now, during this appeal briefing, counsel may argue the grounds of

21    appeal in the order they consider most suitable for their presentation,

22    but I would urge them not just to repeat verbatim or to extensively

23    summarise what is in their brief which is -- have been read by the Court.

24            I wish also to note that pursuant to the Scheduling Order of 14

25    November 2007, the Appeals Chamber has invited the parties to address

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 1    specific issues during this appeal hearing, issues that I do not have to

 2    be -- to restate now.

 3            These invitations are made - I want to stress that - without

 4    prejudice to any matter the parties or the Appeals Chamber may wish to

 5    raise and in no way constitute an expression of the opinion on the merits

 6    of the appeal.

 7            I would now like to recall the criteria applicable to errors of

 8    fact and law alleged on appeal.

 9            The appeal is not a trial de novo and the appellants must not

10    merely repeat their case from the trial level.  Rather, in accordance with

11    the Article 25 of the Statute, the appellants must limit their arguments

12    to alleged errors of law which invalidate the trial judgement or alleged

13    errors of fact, occasioning a miscarriage of justice.  Additionally, it

14    should be recalled that the appellants have an obligation to provide

15    precise references to materials supporting their arguments on appeal.

16            The hearing will proceed according with the schedule outlined in

17    the decision on Hadzihasanovic expedited motion seeking admission in the

18    record an Appeal of certain official translations and request for

19    additional time during the appeal hearing, filed on 30 November 2007.

20    Counsel for Kubura will present his submissions this morning for 40

21    minutes.  The Prosecution will then present its response for 40 minutes,

22    after which counsel for Kubura will reply for 20 minutes.

23            Then following a pause, the Prosecution will start its appeal,

24    according to the schedule.

25            It will be most helpful if -- to the Appeal Chamber if the parties

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 1    could present their submissions in a precise and clear manner.

 2            I wish to remind the parties that the Judges may interrupt them at

 3    any time to ask questions or they may prefer to ask questions following

 4    each party's submission.

 5            Having said that, about the manner in which we'll proceed today, I

 6    will now like to invite counsel for Mr. Kubura to present submissions in

 7    support of his appeal.

 8            Please, you have the floor.

 9            MR. DIXON:  Thank you, Your Honours.

10            Your Honours, I will address you only on grounds 1 and 2 of

11    Mr. Kubura's appeal, that is, his appeal against his sole two convictions

12    for failing to prevent and/or punish looting pursuant to Article 7(3).

13            In respect of -- of his appeal against sentence, the appellant

14    rests on the written submissions that have already been filed.

15            By way of background, Mr. Kubura was granted early release by the

16    order of the President of 11 April 2006, having served over 95 per cent of

17    his sentence of two and a half years of imprisonment.

18            It follows therefore that any possible reduction in sentence would

19    be a matter purely for the record and of potential value as -- as

20    precedent in the sentencing practices of -- of the ICTY.

21            However, even though Mr. Kubura enjoys his freedom, his appeal

22    against the only two convictions is, in our submission, more than purely

23    academic.

24            At the outset, it must be emphasized that, as far as it concerns

25    Mr. Kubura, the appellant's submission is that the Trial Chamber's

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 1    judgement as a whole is a careful and well-reasoned one.  Indeed, the vast

 2    bulk of the Trial Chamber's extensive findings and acquittals, and the

 3    reasoning underpinning them, are not disputed by -- by either the

 4    Prosecution or Mr. Kubura.

 5            The appellant only submits that there were particular and confined

 6    errors in the final two findings of the Trial Chamber in respect of the

 7    sole convictions that were entered for looting for the last charges on the

 8    indictment against Mr. Kubura in count 6.

 9            These have been appealed on account of those errors both for the

10    record and because it is, of course, a consequence of these convictions by

11    an international court that they have an adverse effect on Mr. Kubura's

12    future career prospects in the military of Bosnia, on alternative career

13    opportunities, on his ability to travel, and his reputation.

14            Lastly, by way of introduction, in the appellant's submission

15    there is certainly no proper basis to increase Mr. Kubura's sentence, as

16    sought by the Prosecution in its appeal at ground 3, given the -- the

17    nature of the property-related crimes, the mitigating factors, and also

18    taking into account the -- the detrimental consequences of the two

19    convictions to which I have already referred.  I will further briefly

20    address Your Honours on this ground of the Prosecution's appeal at -- at

21    the appropriate time in the schedule.

22            Turning then to Mr. Kubura's two grounds of appeal against

23    conviction.

24            The appellant's only submission is that no reasonable Trial

25    Chamber could convict Mr. Kubura on the evidence at trial for failing to

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 1    punish looting in respect of Ovnak in June 1993 and for failing to prevent

 2    and punish looting later in Vares at the beginning of November 1993.  In

 3    fact, on -- on one day, the 4th of November, 1993.

 4            The appellant's argument divides into three parts.  And I'll go

 5    through each in sequence.

 6            Firstly, in respect of Ovnak.

 7            The appellant's key submission is that there is no evidence of

 8    Mr. Kubura possessing the requisite knowledge of unlawful appropriation of

 9    goods committed by members of his brigade, the 7th Brigade, those being

10    his subordinates, upon which a reasonable Trial Chamber could base a

11    conviction.

12            The reasons are, firstly, there is no direct evidence of

13    Mr. Kubura witnessing any plundering or any goods that had been plundered

14    or of distributing any of these goods.  The Trial Chamber pointed to no

15    such evidence, and nor has the Prosecution referred to such evidence on

16    the record.

17            Secondly, there are no reports from commanders or -- or members of

18    Mr. Kubura's brigade of plundering which came to him or to his command,

19    or, for that matter, reports from other brigades that were involved.

20    There are only general orders from the 3rd Corps command to all

21    brigades -- and the word "all" is used in the orders -- to prevent

22    plundering following operations, and these are unspecified, between the

23    Bosnian army and the HVO.  There's no specific mention of the Ovnak area

24    in any of those orders.  And here, Your Honour, I'm referring to P186,

25    that is, the order of 10 June; and DH65, that is, the -- the order of 19

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 1    June.

 2            Mr. Kubura merely replicated those orders in passing them on to

 3    his brigade in an order to which the OTP refers of 20 June, which is P427,

 4    as did all other brigade commanders in the 3rd Corps, as they were

 5    required to do.  That order of 20 June also does not specifically mention

 6    plunder in the Ovnak area or that the 7th Brigade was involved in any of

 7    those activities.  And in our submission, these orders, which the

 8    Prosecution relies upon, are -- are merely evidence of Mr. Kubura obeying

 9    orders from above and passing them on, general orders from above about

10    prevention of plundering in general and passing them on to his

11    subordinates, as other brigades were doing.

12            It must be emphasized, Your Honours, in this context that the

13    Trial Chamber found - and this is at paragraph 1943 - that various

14    brigades, refugees, and civilians were involved in the plunder in the

15    Ovnak area.

16            So, Your Honours, we -- we are then left with what the Trial

17    Chamber clearly based its findings on, which is the -- the key paragraph

18    in this regard, paragraph 1957, and there the Trial Chamber based its

19    finding of knowledge for Mr. Kubura on the evidence of one witness,

20    Witness BA, who said that plundered property from Ovnak was distributed by

21    the 7th Brigade, and the Trial Chamber reasoned that that process must

22    have required a decision from the command and, therefore, Mr. Kubura.

23            Yet, the evidence of Witness BA is that he did not know by whom

24    and how that distribution process was performed.  That's at transcript

25    reference 808 to 809.  And there is no other evidence on the record of

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 1    that distribution process; it comes solely from that one witness.

 2            Moreover, the Trial Chamber did find explicitly that Mr. Kubura's

 3    presence in the headquarters where the goods were apparently distributed

 4    was not established beyond reasonable doubt.  And that's paragraph 1956.

 5            The Trial Chamber also found that the army had the right to seize

 6    private property that could be used directly for military purposes.

 7    That's at paragraph 1941.  There was thus nothing improper about setting

 8    up collection points for such property, termed "war booty," or setting up

 9    commissions to deal with that, as was ordered by Mr. Kubura in his order

10    of 5 June 1993.  That's P420 and referred to at -- at paragraph 1939.  So

11    in our submission, it's not correct, as the Prosecution suggest, that

12    those orders show that he knew about property that had been plundered.

13    They merely show that he was implementing a lawful system that was

14    accepted by the Trial Chamber as such within his brigade.

15            There are, we submit - and this is the crucial point - no orders

16    concerning the distribution of any goods that were obtained from Ovnak and

17    no reports to Mr. Kubura that he knew about that process.  Indeed, as I

18    have underlined, Witness BA was not able to give any evidence about who

19    was involved in that process.

20            Moving on, then, Your Honours, to the second part of the argument.

21    And -- and that is whether there are any other instances of plunder from

22    June 1993, Ovnak, until November 1993, in Vares.

23            The Prosecution was requested by Your Honours to identify evidence

24    of plunder committed by the 7th Brigade between those two months.  And in

25    the Defence's submission, there is no such evidence of particular

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 1    instances for which Mr. Kubura could be held responsible under Article

 2    7(3) for failing to prevent or punish plunder.  He certainly was -- was

 3    not charged with any other incidents on -- on the evidence.

 4            There is, thus, no evidence of a repetitive pattern which

 5    Mr. Kubura failed to prevent and which could have put him on notice or

 6    from which it can be concluded that he should have anticipated further

 7    unlawful acts.

 8            As I've already submitted, there is, in our submission, no

 9    evidence in respect of Ovnak about him having knowledge of his troops'

10    involvement.  But -- but even assuming such -- such knowledge, in our

11    submission, there's no evidence of any continuing transgressions

12    thereafter, and it is for the OTP to prove knowledge of plunder in Vares

13    in early November in order to be able to hold Mr. Kubura responsible for

14    failing to prevent it.

15            The -- the final part of my submission in respect of the grounds

16    of appeal relates to -- to Vares.  So we've now moved to the final segment

17    of the conduct.

18            As with Ovnak, in our submission, there's no evidence that

19    Mr. Kubura possessed the requisite knowledge of any particular offences of

20    plunder committed by his subordinates in the 7th Brigade.

21            The Trial Chamber clearly found that this operation was a

22    multi-corps, multi-brigade operation, involving three corps, in fact,

23    under the command of a operational group called the OG Istok.  And that,

24    Your Honours, is at paragraph 1966 and 1978.

25            There is no evidence that Mr. Kubura witnessed any plundering in

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 1    Vares on the 4th of November or at any time immediately thereafter.

 2    There's also no evidence that he received any reports from his

 3    subordinates that plundering was in fact occurring.

 4            On the contrary, Kasim Podzic, who was the commander of the

 5    2nd Battalion of the 7th Brigade that was in Vares on the day, testified

 6    that his troops withdrew on orders at 3.00 p.m. and were not involved in

 7    looting or taking goods from Vares.  That's transcript reference 18656 to

 8    18658.  And, Your Honours, for completeness, his testimony was referred to

 9    by the Trial Chamber at paragraph 1838, without making any comment on the

10    credibility or lack thereof of -- of that witness.  The Trial Chamber

11    appears to have relied upon what the witness said in his testimony.

12            As accepted by the Trial Chamber, in addition to -- to these

13    shortcomings in the evidence, the two reports from the operational group

14    command of 4 November about plunder in Vares were not sent to Mr. Kubura.

15    That's accepted in the judgement.  The two documents are P445 and P676.

16            Consequently, on the judgement, it is plain that there are only

17    three documents left upon which the Trial Chamber based its conclusion.

18    That is, P675, P446, and P468.  And that's at the crucial paragraph in

19    respect of this count, paragraph 1986.

20            The Prosecution suggests that the appellant has -- has looked at

21    these documents artificially and in isolation without considering their

22    property sequence and all of the surrounding evidence.  On the contrary,

23    we will place them in their full context.  And in the short time

24    remaining, Your Honours, I just wish to look at each document and show its

25    relationship, and that will conclude my submission.

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 1            Firstly, in relation to -- to P675, that is an order from the OG

 2    command of 4 November, so on the day of -- of the plunder.  Your Honours

 3    will see that it's not addressed to the 7th Brigade but states that "the

 4    army" - and I'm quoting - "The army must withdraw and also must stop

 5    anything being removed from the town."  The 7th Brigade commander is

 6    specifically made responsible for the execution of that order, but - and

 7    this is crucial, in our submission - there is no mention in that order of

 8    the 7th Brigade committing any acts of plunder on the 4th of November.

 9            Your Honours, I'll come back to this order when I look at what did

10    the 7th Brigade in fact order on that day and -- and thereafter.

11            The next document is P446.  This is a report, Your Honours, from

12    the 3rd Corps command to the OG command.  It's also dated 4 November, and

13    it states that:  "We have issued orders to brigades to engage all military

14    police in preventing looting."

15            Now, the Trial Chamber found that -- that this must have been

16    conveyed to the 7th Brigade, as the 7th Brigade was the only brigade of

17    the 3rd Corps involved in Vares.

18            In our submission, there is an initial point that is incorrect in

19    that finding, in that the 7th Brigade was not the only brigade of the

20    3rd Corps involved in Vares.  Document P448, which is a report on -- on

21    the operations, makes it clear that there were many brigades of the

22    3rd Corps involved, and other units.  And in any event, as the report

23    states, the word "brigades," plural, is -- is used, and not just "the 7th

24    Brigade" or "a brigade."

25            But most importantly, it is not evidence that Mr. Kubura was

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 1    informed of his particular subordinates committing acts of plunder in a

 2    multi-corps, multi-brigade operation.

 3            The last document, P468, this is a report from the 2nd Battalion

 4    to the 7th Brigade command of the 11th of November, so some days later.

 5    In our submission, it is not evidence from which it is capable to conclude

 6    from unlawful acts were committed by subordinates of Mr. Kubura in

 7    particular.  It only mentions the appropriation of war booty according to

 8    the lawful policy, to which I referred earlier, Your Honours, and it

 9    states in terms that looting was prevented.  In our submission, that

10    therefore could not be evidence that looting occurred if the report is

11    that it has not.

12            Your Honours have -- have asked the parties the question:  When on

13    the evidence did Mr. Kubura know about looting in Vares on the 4th of

14    November?  The answer, in our submission, on the evidence is that at no

15    time did he learn that his subordinates in particular were involved in

16    looting on 4 November.

17            The Trial Chamber pointed to two orders of -- of the 7th Brigade,

18    as do the -- the Prosecution.  That's DK50 and P478.  Now, these are both

19    orders from the 7th Brigade.  One of the -- the 4th of November and the

20    next of the 5th of November.  But neither of these orders mention that the

21    7th Brigade is to withdraw on account of plunder committed by the

22    7th Brigade or of receiving any order to withdraw on account of any

23    plunder committed by members of the 7th Brigade.

24            Your Honours, in our submission, what these orders represent is,

25    as I mentioned earlier -- I would refer back to P675, which was the order

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 1    of the OG command for the army to withdraw.  Well, what these orders

 2    represent is the 7th Brigade being ordered by its command to withdraw its

 3    troops on the 4th of November, as all forces were ordered to do in this

 4    multi-brigade operation.

 5            In summary, these documents are not evidence of knowledge of

 6    plunder committed by members of the 7th Brigade, but they are evidence

 7    only of the 7th Brigade following orders from above to withdraw, as all

 8    subordinate brigades involved in that operation were required to do.

 9            Your Honours, in conclusion, I refer briefly to the -- the

10    jurisprudence at -- at paragraph 12 of the appellant's appeal brief.  I

11    don't wish to go through it in detail, given the -- the time constraints,

12    and it is set out clearly in -- in our brief.  But it is to the effect

13    that knowledge cannot be presumed.  This is knowledge, direct,

14    constructive, or having reason to know.  The burden is on the Prosecution

15    to prove by reference to information which is in fact available to the

16    superior, not on information that could be presumed to be available to

17    him.  That information has to be shown to have come from reports or orders

18    or meetings or from witnesses directly.

19            In the appellant's submission, the -- the knowledge requirement of

20    Article 7(3) has not been established on the actual information that was

21    available to Mr. Kubura at the time, and therefore we say that no

22    reasonable Trial Chamber could have convicted on the basis of that

23    available evidence.

24            Those are my submissions.  Of course, we incorporate all of our

25    written submissions.  These were just the main points that were

Page 43

 1    highlighted.

 2            Thank you, Your Honours.

 3            JUDGE POCAR:  Thank you,.

 4            Judge Liu.

 5            JUDGE LIU:  Thank you.

 6            Counsel, I'm very interested in the frequency and the scope of the

 7    7th Brigade military operations during that period.

 8            MR. DIXON:  Yes.

 9            JUDGE LIU:  That is, from June to November of that year.  Will you

10    please be kind enough to identify the evidence in the trial records, as

11    well as the portions of the trial judgement concerning of those military

12    operations.

13            MR. DIXON:  Yes.  Your Honour, thank you.

14            This was a matter in fact that I had discussed with the -- the

15    Prosecution, because the -- the question was initially posed to the

16    Prosecution as to what evidence they would rely upon to show operations

17    during that time and if there were any particular incidents of -- of

18    plunder.

19            In our examination of -- of the record, there -- there was no

20    evidence presented of any further operations of the 7th Brigade during

21    that time.  That's not to say that they weren't involved in such

22    operations.  In fact, P621, which is a document that my learned friend

23    from the Prosecution may -- may refer to, indicates that there were

24    numerous other operations involving the 7th Brigade and other brigades, of

25    course, of the 3rd Corps during that time.  But as there were no charges

Page 44

 1    specific to Mr. Kubura for those operations, there was no further evidence

 2    led in -- in respect of them.

 3            Your Honour, perhaps the most important question, though, is:  Is

 4    there any evidence of plunder committed during that time period?  I know

 5    my learned friend from the Prosecution is going to address Your Honours on

 6    this point, and I was proposing to reply thereafter.  But I can say at

 7    this point that, in our submission, there are no other instances that

 8    Mr. Kubura could have been held responsible for; in other words, having

 9    known about it and having failed to prevent or punish, of plunder

10    committed by members of the 7th Brigade during that time.

11            There is evidence of certain punitive measures and disciplinary

12    measures being taken against members of the 7th Brigade to which my

13    learned friend may refer, but in our submission, those are outside of a

14    military context.  They involve robberies and the theft of a car in towns,

15    and they're not -- they're not offences that arose as part of military

16    operations for which Mr. Kubura could have been held responsible for

17    failing to act, if indeed that had been the case.

18            JUDGE LIU:  Thank you very much.

19            MR. DIXON:  Thank you, Your Honour.

20            JUDGE POCAR:  Judge Guney.

21            JUDGE GUNEY: [Interpretation] Does Mr. Kubura have the requisite

22    knowledge [In English] sufficient to trigger a duty to prevent his

23    subordinates from committing further acts of plunder in Vares as of his

24    receipt of the orders alerting him to these ongoing acts, but did satisfy

25    his duty to prevent the plunder by putting a stop at the plunder once it

Page 45

 1    had started so it would not be repeated?  This is the question.

 2            MR. DIXON:  Yes.  Your Honour, the -- the relevant orders of the

 3    two that I referred to - that's P478 and DK50, which is Mr. Kubura

 4    ordering his troops to withdraw immediately - and in respect of those, our

 5    submission is that they show that he did act immediately to withdraw his

 6    troops once the order came from above that the army must immediately get

 7    out of Vares.  But they are not evidence that he did that because he knew

 8    that his subordinates were committing acts of plunder.  There may well

 9    have been genuine information about a multi-corps, multi-brigade

10    involvement in acts of plunder, but in our submission, that's -- that --

11    that's not sufficient.  He needs to be put on notice that his troops were

12    committing acts and that, as a result of that, he was required to take

13    certain action.

14            But in our submission, he cannot be criticised for not following

15    orders from above.  His troops were immediately withdrawn.  And there's

16    also evidence that there was a check-point checking them as they were

17    coming out.  That's the evidence of Mr. Podzic, which is referred to in

18    our appeal brief.

19            So, Your Honour, if I've understood your question correctly, yes,

20    on the 4th of November he did withdraw his troops, but we say that there's

21    no evidence he had knowledge that his troops had committed unlawful acts

22    and that therefore he withdrew them on -- on that day.  That's the gist of

23    our submission.

24            JUDGE GUNEY:  Thank you.

25            JUDGE POCAR:  Thank you, Judge Guney.

Page 46

 1            Sorry, Judge Meron.

 2            JUDGE MERON:  Counsel, if Kubura knew nevertheless of the

 3    plundering in the Ovnak area in June 1993 --

 4            MR. DIXON:  Yes.

 5            JUDGE MERON:  -- does that knowledge mean or does not necessarily

 6    mean that he knew or had reason to know about the plunder that occurred in

 7    Vares in November 1993?

 8            And related to that, do I understand you to say that there was no

 9    other evidence of his knowledge or constructive knowledge of the

10    plundering in Vares?

11            MR. DIXON:  Yes.  Your Honour, if I could start with the first

12    question.

13            In -- in our submission, the mere fact, if it is established that

14    he did know in June of plunder in Vares, it's not in and of itself

15    sufficient to hold him responsible for failing to prevent or -- or know

16    about acts that are to come in November.  The evidence is of plunder on a

17    single day in Ovnak and then a single day in -- in November in Vares, with

18    some five months between.  And in our submission, unless there's evidence

19    of a repetitive pattern which would put him on notice over a period of

20    time, it would be stretching it to say that he -- because he knew in June,

21    therefore he must have known later.  That's in respect of the first

22    question.

23            In respect of the second, we -- we say there is no evidence that

24    he knew that his troops were committing acts of plunder in Vares in -- in

25    1993.  There are the orders that circulated about looting and burning, but

Page 47

 1    those -- as the Trial Chamber found, were going between the OG command and

 2    the 3rd Corps command and back.  There are no orders in evidence that --

 3    that go from the 3rd Corps command to the 7th Brigade.  There is the one

 4    order which I referred to, P675, saying the 7th Brigade is responsible for

 5    implementing this order, but that's not an order to stop the 7th Brigade

 6    members from committing any acts of -- of plunder.  It's an order to

 7    withdraw and to stop goods being removed when they do withdraw.  And in

 8    our submission, as -- as I said, that process did occur; Mr. Kubura can't

 9    be faulted in that regard.

10            JUDGE MERON:  Thank you, Counsel.

11            MR. DIXON:  Thank you, Your Honour.

12            JUDGE POCAR:  There are no other questions.

13            I would invite the Prosecution to respond to the appeal.

14            MR. WIRTH:  Good morning, Your Honours.  My name is Steffen Wirth.

15    I will be stressing you -- addressing you on the first two grounds of

16    appeal of Amir Kubura.

17            Like the Defence for Amir Kubura, we do not propose to address

18    Kubura's third ground of appeal, his appeal against the sentence, and in

19    that regard we rely upon our brief.  In any event, the Chamber will be

20    aware that the Prosecution will be addressing Mr. Kubura -- the sentence

21    of Mr. Kubura in its own appeal in due course.

22            I turn to Mr. Kubura's first ground, regarding the plunder of

23    Ovnak, of the Ovnak area.

24            Before I address the arguments raised this morning, I will give a

25    short overview over the relevant factual framework of this ground of

Page 48

 1    appeal.

 2            On the 8th of June, 1993, the 7th Brigade entered the Ovnak area

 3    from which the Croatian troops had already withdrawn.  On the following

 4    day, the 9th of June, 1993, the members of the 7th Brigade and others

 5    committed extensive and repeated plunder in the area.  Many houses were

 6    plundered, technical equipment -- many houses were plundered and technical

 7    equipment, valuable household appliances, and food was stolen.  The

 8    plundered goods were systematically collected in the church of

 9    Brajkovici --  Brajkovcici [sic], one of the villages in the Ovnak area,

10    and eventually transported to the Bilmiste barracks in Zenica, that is,

11    Kubura's headquarters.

12            Eventually the stolen goods were distributed among the members of

13    the 7th Brigade.

14            The Trial Chamber found that Kubura knew of the plunder and failed

15    to take any steps to punish the perpetrators and therefore convicted him

16    for the failure to punish plunder in Ovnak.

17            Kubura submits that the Chamber failed -- that the Chamber erred -

18    excuse me - the Chamber erred in finding that Kubura knew of the plunder.

19            The Trial Chamber found that the stolen goods were distributed

20    among members of the 7th Brigade and drew the conclusion that this

21    distribution could not have been done without at least Mr. Kubura's

22    consent.

23            It has been Mr. Kubura's submission this morning that the Trial

24    Chamber should not have drawn this conclusion and there are two arguments.

25            The first argument is that the Trial Chamber only relied upon a

Page 49

 1    single witness, Witness BA.  And the second argument is that the Trial

 2    Chamber erred in drawing the conclusion that Kubura must at least have

 3    consented to the distribution of the goods.  Now, both arguments should be

 4    rejected.

 5            First, the Trial Chamber was entitled to rely upon the evidence of

 6    one witness, that is found in the Aleksovski appeals judgement, paragraph

 7    62.

 8            But second, there were several pieces of evidence, not just one,

 9    that show that the plundered goods were brought to Kubura's headquarters

10    and that he decided about or consented to their distribution.

11            This evidence is the following:  The plundered goods were

12    delivered directly to Kubura's headquarters, the Bilmiste barracks in

13    Zenica.  Also, it was Kubura who had chosen the Bilmiste barracks as a

14    collection point for booty, and that is P420 and trial judgement 1939.

15            And even if that was a lawful procedure, as has been submitted to

16    us this morning, this procedure has been abused by using it to process not

17    legal war booty but stolen goods.

18            Now, it was not a secret that the goods taken from Ovnak were

19    taken to the 7th Brigade's facilities.  This fact was known to the Zenica

20    Municipal Defence Staff Security and Information Service and the service

21    reported the fact to the 3rd Corps command two days after the plunder of

22    the 11th June.  And that is P424, referred to in trial judgement 1936.

23            Now, there is also evidence -- contrary to Kubura's submissions

24    there is also evidence that show it was Kubura who decided about the

25    distribution of goods.  He did so in a meeting of 7th July, 1993.  And

Page 50

 1    that is P789.  And he did so with regard to the goods plundered in Vares.

 2    That's found by the Trial Chamber in paragraph 1993.

 3            Finally, the organised scheme for the plunder in Ovnak could not

 4    have been implemented without prior approval of Mr. Kubura, and that is

 5    the finding of the Trial Chamber in paragraph 2091.

 6            Taken together, this evidence shows that the 7th Brigade troops

 7    systematically and extensively plundered the Ovnak area, that they openly

 8    used 7th Brigade premises at Kubura's headquarters to store the plundered

 9    goods; that this location had been designated as a collection point by

10    Mr. Kubura; and that Mr. Kubura generally was the person to decide about

11    the distribution of goods.

12            Given that evidence, the Trial Chamber was not unreasonable to

13    conclude that Kubura at least had consented to the distribution of the

14    goods taken from Ovnak.  It -- therefore, Mr. Kubura must have known of

15    the plunder.

16            I turn to Mr. Kubura's second ground of appeal, unless

17    Your Honours have questions with regard to the first ground.

18            But before I address Mr. Kubura's arguments, I will first answer

19    the Appeals Chamber' questions with regard to this ground.  I begin with

20    question 3A, and that is whether the 7th Brigade had been engaged in

21    military operations between June and November 1993 and whether acts of

22    plunder were committed during such operations.  The answer is that there

23    is evidence that the 7th Brigade was engaged in military operations in

24    this time frame and there is evidence of plunder.

25            P621 is a request from Kubura to rest soldiers.  It is dated 16

Page 51

 1    October 1993 and it states that "The 7th Brigade had been in constant

 2    combat since April and thus required 12 to 15 days of rest."  Now, this is

 3    evidence that the 7th Brigade was involved in military operations in the

 4    time frame.

 5            I'll turn now to the evidence that they plundered during such

 6    operations.  Now, first, around the same time, when the Ovnak area was

 7    plundered, members of the 7th Brigade committed repeated and extensive

 8    plunder in Cukle, that is trial judgement 1913 and 1915.  Kubura was not

 9    charged with these incidents.  That's why there's no conviction -- or

10    that's why the Trial Chamber didn't address the conviction.  That is 1926

11    in the trial judgement.

12            The plunder in Cukle followed the attack on the village.  That is

13    trial judgement 1910.

14            Now, for the next piece of evidence, I would like to refer to -- I

15    would ask Your Honours could we go in private session.

16                          [Private session]

17  (redacted)

18  (redacted)

19  (redacted)

20  (redacted)

21  (redacted)

22  (redacted)

23  (redacted)

24  (redacted)

25  (redacted)

Page 52

 1  (redacted)

 2  (redacted)

 3                          [Open session]

 4            THE REGISTRAR:  Your Honour, we are in open session.

 5            MR. WIRTH:  This evidence is corroborated by P898, a report of the

 6    3rd Corps which states that on 7th June 1993 a member of the MOS was

 7    involved in taking technical goods on a wagon in the Ovnak area.

 8            Now, the Trial Chamber found that the term "MOS" in this report

 9    meant the 7th Brigade.  And you can see that from trial judgement

10    paragraph 1943 in conjunction with trial judgement paragraph 410.

11            The next piece of evidence regards the 7th Brigade's plunder in

12    Kakanj.  Two 7th Brigade members were under investigation for allegations

13    of looting in Kakanj and several officers of the 7th Brigade were relieved

14    of their duties by the commander of the 7th Brigade for failing to prevent

15    the crime of looting in Kakanj.  That is P544, a report from

16    Hadzihasanovic dated 25th June 1993.

17            Now, this document does not only show that the 7th Brigade was

18    involved in plunder but also that Kubura knew of this and reacted by

19    merely relieving officers of their duties.  Further, plunder in Fojnica.

20    In the Fojnica sector, 7th Brigade soldiers were combing through Croatian

21    houses.  That's P814 [Realtime transcript read in error "P840"], a report

22    of the 7th Brigade command of the 5th of August, 1993.

23            There are also several criminal reports on the record accusing

24    members of the 7th Brigade of taking goods at gunpoint from their owners.

25    Members of the 7th Brigade were reported to have used their weapons to

Page 53

 1    take away a car from Davor Blazevic on the 16th of August, 1993.  That is

 2    DH1481, a criminal report against members of 7th Brigade.

 3            Another criminal report, Exhibit DH1553 is directed against

 4    members of the 7th Brigade who took money and other goods from their

 5    victims, again at gunpoint, at various times from July to September 1993.

 6            The fact that the soldiers were reported to have taken the goods

 7    at gunpoint shows that they acted during military operations.  ABiH

 8    soldiers only had long-barreled weapons.  And that is transcript page

 9    13768, and ABiH soldiers were only allowed to carry long-barreled weapons

10    during military operations.  That is DH2086, section viii, and that

11    confirmed in P447, number 5.

12            Now, in addition to this evidence of plunder carried out by

13    members of the 7th Brigade, further documents show that plunder was a

14    recurring problem of which the ABiH was well aware.  Several orders of

15    Hadzihasanovic addressed the problem of plunder.  These orders are

16    referred to in paragraph 2024 and following of the trial judgement.  I

17    will therefore only point out two of them today.

18            The first one is P193, an order of the 3rd Corps command of 18

19    September 1993.  This order strictly forbade the looting of property and

20    required that if it takes place, commanders, including brigade commanders,

21    must take necessary action to impose sanctions.  The order was directed

22    inter alia to all brigades.

23            The second order that I would like to point out is the order to

24    attack Vares.  This is the order which was sent to Kubura on the 3rd of

25    November, 1993, P674.  This order, one day before the attack on Vares,

Page 54

 1    explicitly re-emphasises to Kubura that war booty must be dealt with in

 2    the spirit of the 3rd Corps command order.

 3            Now, contrary to Kubura's submission this morning, these orders

 4    directed against the virulent problem of plunder, together with the

 5    evidence of the ongoing plunder by members of the 7th Brigade show that

 6    the looting of Ovnak was not an isolated incident, it was not something

 7    that Kubura could disregard when preparing for the attack on Vares.

 8            I will now turn to the Appeals Chamber question number 3B.  The

 9    first part of the question is:  When in the course of the 4th of November,

10    1993 did Kubura acquire knowledge of the plunder?

11            Now, this is not clear from the evidence.  It is known that the

12    7th Brigade entered the town around 8.00.  Trial judgement 1966.  And it

13    is known that chaos erupted after the 7th Brigade had entered the town.

14    That is P -- and it is also known that everything was looted at the time.

15    P676.

16            It is further clear that the OG Istok learned of the plunder at

17    the latest at 10.45, when its Chief of Staff reported that the 7th Brigade

18    had entered the town and that they were stealing everything they saw.

19            It is also known that OG Istok, as well as the 3rd Corps command,

20    ordered to stop the plunder.  P675 and P446.  But time when Kubura

21    received these orders is not in evidence.

22            The second part of question 3B is:  How and when did Kubura react

23    to stop the plunder?  And the answer is that Kubura ordered his troops to

24    withdraw and that this order was received at 1500 hours.  That's T18657,

25    corroborated by P448, page 12.

Page 55

 1            Now, this ends my submissions on the Appeals Chamber' questions.

 2    And unless there's anything else with regard to these questions that I can

 3    assist the Appeals Chamber with I would turn to Kubura's submission on the

 4    second ground of appeal.

 5            Now, again, before I turn to Kubura's arguments, I will give a

 6    short overview of the facts of the case.

 7            On the 4th of November, when the 7th Brigade entered the abandoned

 8    town of Vares, chaos erupted and everything was looted and burned.  That's

 9    P676, a report from OG Istok.  The 7th Brigade soldiers were stealing and

10    looting everything they saw, and after learning the situations, members of

11    other units joined in the general looting.  P445 and trial judgement 1955.

12            ABiH soldiers who appeared to be drunk were going around and

13    shooting their weapons.  There were broken windows and smashed-in doors.

14    The 7th Brigade was responsible for the wholesale smashing of shop

15    windows, making off with goods, and smashing cars.  That's P448, page 11,

16    an analysis by OG Istok.  And as counsel for the Defence just pointed out,

17    OG Istok commanded the operation in Vares.

18            The primary object of the plunder were shops in the main street

19    but also private houses.  Now, on the basis of this and other evidence,

20    the Trial Chamber found that the crime of plunder had been committed by

21    several units of the ABiH, and particularly by soldiers of the 7th Brigade

22    2nd and 3rd Battalions.  The Trial Chamber also found Kubura's knowledge

23    on two distinct bases:  First, the Trial Chamber found that Kubura had

24    reason to know of the upcoming plunder in Vares since he knew of the prior

25    plunder in the Ovnak area.  And I just made submissions on that matter

Page 56

 1    with regard to the Appeals Chamber's questions.

 2            The second basis for Kubura's knowledge was that he learned of the

 3    actual plunder after he -- it had started, and several documents show

 4    that.  That is trial judgement 1986.  The Trial Chamber found that before

 5    the plunder, Kubura did not take sufficient measures to take -- to prevent

 6    the plunder from starting and that after the plunder he did not take

 7    measures to punish the perpetrators.  The Trial Chamber consequently

 8    convicted Kubura for failing to prevent and punish the plunder in Vares.

 9            I will now turn to Kubura's appeal against his conviction.

10            The Trial Chamber's first basis for finding Kubura's mens rea was

11    that the plunder in Ovnak, combined with Kubura's failure to punish, put

12    him on notice that the 7th Brigade was likely to repeat such acts.

13            Kubura claims, first, that the Trial Chamber erred because Kubura

14    had not known of the plunder in Ovnak.  And I have just addressed why that

15    is not correct.  Kubura also claims - excuse me - that there was a long

16    period of time between the plunder in Ovnak and the plunder in Vares and

17    that the information that the warning he received in Ovnak somehow had

18    worn off in the meantime.

19            Now, I also have addressed that matter when addressing the Appeals

20    Chamber's questions, showing that plunder was a very, very live issue and

21    that Kubura was aware of that.

22            I turn to the second basis for Kubura's mens rea, and that was

23    that he learned of the plunder after it had started.

24            The Trial Chamber found that Kubura learned of the plunder of his

25    troops since he received two orders, two orders and one report notifying

Page 57

 1    him of this fact.  And this evidence is set out in the trial judgement in

 2    paragraph 1986.

 3            Now, the first document is P675, and that is an order by the OG

 4    Istok which requires that the plunder be stopped and assigns Mr. Kubura to

 5    carry out that order.

 6            The Trial Chamber also found that Mr. Kubura reacted to this order

 7    and that he withdrew his troops from Vares.

 8            The Defence claims that -- the Defence points out that P675 does

 9    not specifically state that the 7th Brigade was involved in the plunder;

10    however, the fact that Mr. Kubura was assigned to carry out that order was

11    a -- a basis for a reasonable Trial Chamber to find that he had known from

12    this -- that he was informed through this order that his troops committed

13    plunder in Vares.  In any case, however, if nothing else, this order

14    clearly put him on inquiry notice.  It clearly indicates that -- the need

15    for further investigations that he needs to take in order to find out who

16    was plundering in Vares, since he certainly knew that his troops were

17    there.

18            Now, the second document, the second order that reached Mr. Kubura

19    was an order of the 3rd Corps command.  The Exhibit P448 reports this

20    order and states that the order was sent to brigades.  The Trial Chamber

21    found that the 7th Brigade was the only brigade subordinated to the

22    3rd Corps that was present in Vares and that therefore this exhibit must

23    have been -- sorry, that therefore this order, the order reported in P446,

24    must have reached the 7th Brigade.

25            Kubura has submitted this morning that P448 would mention that

Page 58

 1    other brigades of the 3rd Corps were also present in Vares.  I have very

 2    quickly reviewed P448 and particularly pages 11 to 12, where the Vares

 3    plunder -- where the Vares operation and the plunder is mentioned, and I

 4    was not able to find information that also other brigades of the 7th -- of

 5    the 3rd Corps were present in the Vares area.

 6            In any case, it cannot be assumed that if the 3rd Corps command

 7    sends an order to stop plunder, it would not send it to all brigades

 8    involved, in particular, since the 3rd Corps command was informed through

 9    the report of the OG Istok that the soldiers of several units were

10    plundering in Vares.

11            Now, the Defence also challenges the Trial Chamber's reliance on

12    P468, which is a report prepared by the 2nd Battalion of the 7th Brigade

13    informing Kubura that the collection of war booty had been carried out in

14    an organised manner.  The Defence points out that the report also states

15    that looting was prevented.

16            Now, the Trial Chamber was entitled to disregard this comment in

17    P468 since there is a strong indication that there this is part of the

18    report was self-serving.  The report has been prepared by the very

19    7th Brigade who committed the plunder.

20            I'd also like to draw your attention to a fourth piece of evidence

21    that also supports that Mr. Kubura knew of the plunder in Vares, and that

22    is Kubura's order of 7th November, 1993 to distribute the illegally

23    appropriated property among members of 7th Brigade.  That's trial

24    judgement 1993.  Kubura could not have given that order had he not known

25    of the plunder.

Page 59

 1            And finally, Mr. Kubura was the commander of the 7th Brigade and

 2    he was present in the area.

 3            The Trial Chamber found at paragraph 2091 that the organised

 4    scheme for the plunder in Vares could not have been implemented without

 5    prior approval of Kubura.

 6            Now, that concludes my submissions on Kubura's second ground of

 7    appeal, and we submit that Kubura's appeal should be dismissed in its

 8    entirety.

 9            Unless you have questions, that also concludes my submissions.

10            JUDGE POCAR:  Thank you.  There are no questions.

11            So I would ask the Defence to make submissions in reply.

12            In doing so, Mr. Dixon, may I ask you one question or

13    clarification that may --

14            MR. DIXON:  Yes, sir.

15            JUDGE POCAR:  -- allow me to better understand your position.  You

16    may take that into account in your submissions whenever you wish.

17            You said in your previous submissions a couple of times that

18    knowledge cannot be presumed and knowledge must be proved by direct

19    evidence.

20            I understand your point was that there is a need of specific

21    evidence that proves knowledge on this specific date in which events

22    occurred.

23            Is that your point in terms of law, that knowledge cannot be

24    proved but by direct evidence and would not be possible to prove knowledge

25    by indirect evidence or circumstantial evidence?

Page 60

 1            And if this is your position, why so?  Can you explain me that.  I

 2    thank you.

 3            MR. DIXON:  Yes.  Thank you, Your Honour.  I'll start with that

 4    question immediately.

 5            It is certainly not our position that knowledge can only be proved

 6    through the introduction of direct evidence.  It can, of course, be proved

 7    from all of the circumstances taken together where the only reasonable

 8    conclusion is that the commander knew or had reason to know.

 9            Our submission is that there's both no direct evidence of

10    Mr. Kubura knowing of any of these offences.  He didn't witness them;

11    there's no evidence of reports coming directly to him.  But in addition to

12    that, the circumstances don't allow the only reasonable inference to be

13    drawn that he knew that his troops were directly involved in the

14    commission of these crimes together with, as I've mentioned a few times,

15    many other brigades and civilians as well.

16            Your Honours, if I can move on to briefly reply.  And the only

17    issue which I'm going to address are the instances that my learned friend

18    mentioned about other acts of plunder between June and November, in order

19    to respond to the allegation that is put forward by the Prosecution that

20    there's a repetitive pattern which -- which must have put Mr. Kubura on

21    notice of events that were to follow in Vares in November 1993.

22            I have, Your Honours, already addressed the point in relation to

23    DH1553 and the related documents about these instances being really common

24    crimes perhaps committed by members of the military but not in the context

25    of -- of armed operations.

Page 61

 1            Your Honours, in addition to that, there are certain references

 2    that were made by my learned friend in -- in relation to events that are

 3    in fact incorporated into the Vares count and the earlier Ovnak count.

 4    That would be in respect of the -- of the evidence of Witness ZA, talking

 5    about what happened in Ovnak a few days or a short period later, which is

 6    dealt with in -- in the count by -- by the Trial Chamber.  And also, P674,

 7    which is Mr. Hadzihasanovic's order to Mr. Kubura in respect of Vares, and

 8    that deals directly, of course, with the events in Vares and it merely

 9    refers to the proper procedure in respect of war booty having to be

10    followed.

11            So in my submission, those kinds of references are of no use and

12    of any relevance here.

13            Secondly, the other category which -- which can be excluded, in my

14    submission, would be those that refer to general orders about plundering.

15    So -- so orders from the command which say that plundering should be

16    prevented or forbidden in all circumstances, that the proper policies

17    should be followed.  Those are orders of a general nature and do not point

18    to any specific incidents between June and November.

19            The -- the only three that my -- my learned friend has referred

20    Your Honours to are, one, an instance in respect of Cukle; another in the

21    Fojnica sector; and then a reference to an order concerning looting in

22    Kakanj.

23            My submission initially, Your Honours, is, as you're aware, is

24    that there were no particular incidents which Mr. Kubura could have been

25    held responsible for under Article 7(3) or for which he was charged with

Page 62

 1    in the indictment.  Certainly, with regard to Cukle, as my learned friend

 2    has indicated, that was not charged against Mr. Kubura and no defence

 3    was -- was led obviously in respect of that allegation.  And it's for that

 4    reason that the Trial Chamber at 1924 states that it considers that since

 5    the accused Kubura was not mentioned in the indictment in relation to the

 6    plunder committed in Cukle in June 1993, the question of measures taken by

 7    him need not be raised.

 8            So in our submission, that, too, is an incident that is of no

 9    relevance to this consideration, as it was not charged against Mr. Kubura

10    and it was not a matter that therefore he had to address in respect of

11    measures to be taken.

12            Secondly, in respect of the Fojnica sector and the document

13    referred to by the Prosecution is P814.  I think it was referred to in the

14    transcript as -- as P840, but it must be P814, dated 5 August 1993.  And

15    this is a report from the assistant commander for security of the

16    2nd Battalion of the 7th Brigade going to the assistant commander of

17    security for the 7th Brigade command.  So it's a report within the

18    security sector of the brigade.  And it -- it clearly indicates on -- on

19    page 2 that a patrol was organised by the security sector to prevent any

20    arson and looting.

21            So the -- the nature of the report is -- is not indicating that

22    looting occurred but indicating that steps were taken to prevent looting.

23    So in our submission, it cannot be relied upon as evidence of looting

24    occurring in that area, let alone Mr. Kubura knowing anything about, any

25    allegations that were made in respect of looting.  In our submission,

Page 63

 1    there are none that appear on the face of this document.

 2            And it is also important, a point which I will return to when I

 3    respond to the Prosecution's appeal, to -- to note that with -- with many

 4    of these documents, including this one, there -- there was no evidence led

 5    before the Trial Chamber by the Prosecution of those persons who were

 6    involved in producing the documents or receiving the documents to -- to

 7    place them in their context, to allow for the parties to explore with the

 8    witnesses what were the circumstances in which this order was produced,

 9    and whether in fact it was a response to -- to any looting.  What we are

10    left with is merely what is on the face of the document, which is an

11    indication that acts of looting should be prevented.

12            And finally, Your Honours, the incident in respect of Kakanj, that

13    is, P544.  And that is a -- an order of 25 June coming from

14    Mr. Hadzihasanovic to the deputy commander of the Supreme Command Staff.

15    So it's an order going up, not -- not down, to any of the brigades of the

16    3rd Corps.

17            And in this report, it is indicated that certain members of the

18    7th Brigade were relieved by the brigade command of their duties in Kakanj

19    for failing to carry out an order to prevent crime and looting.

20            So it is an indication, as far as we know, on -- on the face of --

21    of the document of steps being taken to prevent such action.

22            Once again, not an instance that could be relied upon, in our

23    submission, to find Mr. Kubura responsible as a commander under Article

24    7(3), and, in any event, a document which comes, again, without a context,

25    without any other evidence, what exactly were these acts?  We don't know.

Page 64

 1    What steps were taken to prevent those acts taking place?  We don't know.

 2    All we -- we are informed about is that steps were taken to relieve

 3    persons of their duties.  Whether or not it is a matter that Mr. Kubura

 4    was involved in or had knowledge of, once again, is -- is a matter where

 5    there is no evidence on -- on the record.

 6            And it's for that reason that we maintain our position that there

 7    are no instances between June and November which Mr. Kubura could be held

 8    responsible for, which cumulatively could add up to him being on notice or

 9    upon which a conclusion can be drawn that he should have anticipated

10    further actions occurring of an unlawful nature in November 1993.

11            Your Honour, the final point that I wish to make is just in

12    respect of the point that was made by my learned friend that there were no

13    other brigades of the 3rd Corps involved in the operation in Vares, and he

14    was referring to P448.  There -- there are in that document a number of

15    references to other brigades of the 3rd Corps:  The 302, 304, to mention

16    but a few.  The brigades of the 3rd Corps naturally start with "3", and,

17    for example, on page 12 there's a reference to -- to three brigades of the

18    3rd Corps being involved in the operation under the command of OG Istok

19    participating in operations from the north and from the south, with a

20    platoon of the 7th Brigade.  And in our submission, this confirms what the

21    Trial Chamber has found, that there were a number of units involved and a

22    number of other groupings as well, including civilians, who were involved

23    in looting in Vares.

24            Your Honour, those are my submissions in reply, unless there are

25    any further questions to answer.

Page 65

 1            JUDGE POCAR:  Thank you, Mr. Dixon.

 2            I see there are no further -- oh, well, Judge Guney.

 3            JUDGE GUNEY: [Microphone not activated]

 4            THE INTERPRETER:  Microphone, please.  Microphone, please.

 5            JUDGE GUNEY:  Mr. Dixon, I have a brief question, in the framework

 6    of the property seized in the Ovnak sector.  Did the property seized in

 7    the Ovnak sector have any direct military use or the property in question

 8    was appropriated in an unlawful and deliberate manner and went beyond the

 9    scope of legitimate war booty?  I would like to be enlightened on this

10    question, please.  Thank you.

11            MR. DIXON:  Yes.  Thank you, Your Honour.

12            The appellant has not appealed against the Trial Chamber's finding

13    that there was unlawful appropriation in -- in the Ovnak area in June 1993

14    of various forms of property and goods which would be outside of the

15    policy of lawful war booty and would therefore be considered unlawful.

16            The appellant has only appealed against whether Mr. Kubura knew

17    that his particular subordinates were involved in -- in those actions,

18    when there were a number of people whom the Trial Chamber found were

19    responsible.

20            The Trial Chamber wasn't able to specify which particular item on

21    which particular moment was stolen or taken by which particular grouping

22    or an individual civilian.  It was a collective finding that various

23    groupings were involved.  And that particular finding has not been

24    appealed.  It's -- it's only what Mr. Kubura knew, whether he had reason

25    to know or directly knew that his soldiers were involved in that action,

Page 66

 1    and as a result of that, failed in his duty to -- to take certain steps.

 2            And, Your Honour, I can indicate that the same is applicable in

 3    respect of Vares as well.

 4            JUDGE GUNEY:  Thank you.

 5            JUDGE POCAR:  Well, I think it's an appropriate time to break.

 6    We'll reconvene in 30 minutes, so that means 10.35.

 7            The hearing is suspended.

 8                          --- Recess taken at 10.04 a.m.

 9                          --- On resuming at 10.37 a.m.

10            JUDGE POCAR:  So we'll resume the hearing.  And according to the

11    schedule, we move on to the Prosecution appeal.

12            So we'll give the floor to the Prosecution for their submissions.

13            MS. GOY:  Good morning, Your Honours.  My name is Barbara Goy and

14    I will be dealing with grounds 1 and 3 of the Prosecution appeal, the

15    sentencing grounds.  And Mr. Wirth will then address ground 2.  And after

16    that, Mr. Dalal will address ground 4.

17            First addressing the ground of appeal.

18            Enver Hadzihasanovic was found guilty --

19            JUDGE POCAR:  There is no transcript.  Let's wait a moment.

20                          [Appeals Chamber confers]

21            JUDGE POCAR:  Okay.  I understand the transcript can be made later

22    if we -- we may --if there is no disagreement, we may proceed.

23            Is there any objection?  No.  If not, the Prosecution may --may

24    start its submissions.  Please.

25            MS. GOY:  Thank you, Your Honours.

Page 67

 1            I will start with the first ground of appeal.

 2    Enver Hadzihasanovic was found guilty under 7(3) for the murder of two

 3    people and the cruel treatment in Zenica music school, Orasac camp, and

 4    four different detention facilities in Bugojno.  The Prosecution requests

 5    an increase of its sentence from five to ten years imprisonment.

 6            One of the murders was particularly heinous, the killing of

 7    Dragan Popovic.

 8            On 21 October 1993, Dragan Popovic was killed.  His throat was cut

 9    and the head cut from his body.  The soldier who finished the task proudly

10    held up the disembodied head and forced other detainees to kiss it.

11            Hadzihasanovic had the material ability to prevent this brutal

12    ritualistic killing, but he failed to do so.

13            Mladen Havranek, who was detained in the furniture salon in

14    Bugojno, was called upstairs from the basement and the other detainees

15    could hear him moaning and screaming and begging to stop the beating.

16             After that, he could no longer walk, so the other prisoners

17    dragged him back down to the basement.  He lost consciousness and died as

18    a result of the beating.  Hadzihasanovic failed to adequately punish the

19    perpetrators.

20            Hadzihasanovic was also responsible as a superior for the terrible

21    cruel treatment in the detention facilities, which lasted for several

22    months.

23            In Orasac camp, the cruel treatment was extremely violent.  The

24    prisoners were beaten with anything that came to hand, which led to broken

25    bones, loss of consciousness.

Page 68

 1            On top of the physical violence there, were death threats and

 2    harassments of every kind.

 3            At Zenica music school, the defenceless victims were constantly

 4    subjected to the cruellest physical abuse, often in front of other

 5    detainees.

 6            One detainee was kicked and punched until his face began to bleed

 7    copiously.  Another had his hand tied up behind the back and was hit with

 8    a stick until his ribs were fractured.  He could hardly walk or breathe.

 9            In other cases, the beatings resulted in a fractured skull, broken

10    hands, even permanent damage, such as partial loss of eyesight and a need

11    for hip replacement.

12            These were just examples.  The other detainees were beaten in the

13    same way.  The cruel treatment was repeated and the detainees lived in a

14    permanent state of anxiety.

15            The various detention facilities in Bugojno were also

16    characterised by the particularly violent cruel treatment.  In the

17    furniture salon, the beating occurred virtually every night.

18    Mladen Havranek died as a result of the mistreatment.

19            Witness Alvir had broken ribs.  When Witness ZH arrived at the

20    Gimnazija school, he was beaten with rifle butts, kicked in the stomach,

21    and once on the ground kicked in the kidney before he lost consciousness.

22    After the beating he had a broken collarbone, lost 60 per cent of his

23    right kidney function, and suffered two stomach hernias, which required

24    surgery.

25            The gravity of these crimes was ignored by the Trial Chamber.  In

Page 69

 1    addition, it took irrelevant mitigating factors into account.

 2            Gravity, as said by the Celebici appeals judgement, is a mandatory

 3    sentencing consideration for 7(3) liability as much as for 7(1). It

 4    requires to take into account the particular circumstances, including the

 5    nature of the crime --.

 6            THE INTERPRETER: Would you be so kind as to slow down, thank you.

 7            MS. GOY: [Previous translation continues] ... the Trial Chamber

 8    only paid lip service to this requirement by mentioning gravity in the

 9    section on legal framework for sentencing, but it did not apply these

10    factors to the facts of this case.  The part determination of sentence

11    only refers to aggravating and mitigating factors.

12            In sentencing, the Trial Chamber therefore only mentions the time

13    span, the large number of victims of the cruel treatment, and the heinous

14    character of the beheading under aggravating circumstances, not the impact

15    on the victims who had to kiss the disembodied head.

16            The sentence of the Trial Chamber thus fails to adequately capture

17    the extent of Hadzihasanovic's culpability as a high-ranking military

18    official who failed to prevent and punish very serious crimes.

19            The Trial Chamber, moreover, erroneously mitigated the sentence by

20    taking into account competence, effectiveness, intelligence, and good

21    education and the lack of theoretical and practical training.

22    Hadzihasanovic had been a professional soldier for 20 years.  He was the

23    former commander of a police battalion, so has particular experience with

24    superior responsibility and its enforcement.  Any lack of theoretical or

25    practical training as a corps commander is irrelevant.

Page 70

 1            I therefore invite you to grant the Prosecution's first ground of

 2    appeal.

 3            And unless there are questions regarding to the first ground of

 4    appeal, I would move to our third ground of appeal.

 5            JUDGE POCAR:  Judge Liu.

 6            JUDGE LIU:  Well, you mentioned about the gravity of the crime in

 7    the sentencing of Mr. Hadzihasanovic.  I understand that the accused was

 8    convicted with the commander's responsibility.

 9            There's a question of law that when convicting somebody which the

10    commander's responsibility, do we have to take into the gravity of the

11    crime committed by his subordinate into the consideration, or we just take

12    into account the seriousness of his omission of failing to prevent or

13    punish his subordinate who committed the crime.

14            Thank you.

15            MS. GOY:  Our answer to that is that both factors have to be taken

16    into account for Article 3 liability.  The nature of the underlying crime,

17    as set out in the Celebici appeal judgement in paragraph 732 is a factor

18    to be taken into account as well.

19            JUDGE LIU:  Thank you.

20            MS. GOY:  If there are no further questions regarding

21    Hadzihasanovic, I would proceed with our appeal regarding Mr. Kubura's

22    sentence.

23            Two and a half years imprisonment for Amir Kubura is manifestly

24    inadequate for two instances of plunder:  The Trial Chamber ignored the

25    gravity and should not have given any credit to Kubura for the finding

Page 71

 1    that he obeyed an order to stop plunder in Vares.  The Trial Chamber

 2    abused its discretion by taking into account in mitigation that Kubura

 3    swiftly complied with the order of the OG Istok on 4 November 1993 to stop

 4    the in Vares and to withdraw his troops.  The fact that a commander

 5    follows the order to stop further commission of crimes is not mitigating.

 6                          [Appeals Chamber confers]

 7            JUDGE POCAR:  Can you perhaps slow down --

 8            MS. GOY:  Yes.

 9            JUDGE POCAR:  -- for the translation, thank you.

10            MS. GOY:  In addition to giving credit to an irrelevant mitigating

11    factor, the Trial Chamber ignored the gravity.  Both in the Ovnak area and

12    in Vares plunder was serious.

13            In the avenue knock area -- Ovnak area, the lives of the victims

14    were severely affected.  Many houses were plundered.  Right after the

15    village fell, the 7th Brigade military police brought in trucks and took

16    possession of technical equipment, household appliances, building

17    materials, and food.  The goods were assembled in a collection point in

18    Brajkovici and then transported to the 7th Brigade headquarter in

19    Bilmiste, which was set up as a collection point by Kubura.

20            In Vares, the plunder was even worse.  The soldiers plundered

21    everything they could get their hands on.  There was unrestrained

22    plunder.  They used force to achieve their aim.  In order to commit

23    looting, they destroyed shop windows and broke in doors.  As described by

24    one witness, every shop had at least a broken display window.

25            Theft of foodstuff was part of the strategy of the troops

Page 72

 1    plundering in Vares.  And in both places, plunder was a systematic abuse

 2    of the war booty procedure.

 3            But Kubura did more than merely fail to prevent or punish.  He

 4    accepted and organised the plunder.  In Vares he effectively rewarded the

 5    plunderer by issuing a written order granting leave to the soldiers who

 6    took part in the operation and ordering the seized property to be

 7    distributed.

 8            However, only the systematic nature and the personal involvement

 9    were addressed in the sentencing part of the judgement as aggravating

10    factors, which left the extent and level of violence used to achieve the

11    plunder disregarded.

12            The gravity of the plunder is not adequately reflected in the two

13    and a half years imprisonment, particularly when taking into account that

14    plunder as a war crime was punished by imprisonment of not less than five

15    years in the SFRY Criminal Code.  The Appeals Chamber should therefore

16    consider what kind of message it is sending if a commander who not only

17    fails to prevent and punish but in effect rewards his plundering troops

18    need not fear a harsh punishment.

19            This ends my submission on sentencing.  And if there are no

20    questions, Mr. Wirth will address you on ground 2.  Thank you.

21            MR. WIRTH:  As Ms. Goy just indicated, I will be addressing you on

22    the second ground of appeal.

23            The Trial Chamber erred in acquitting Mr. Kubura for his failure

24    to punish the destruction in Vares.  It erred for at least two reasons:

25    First, it failed to appreciate that Kubura knew that Vares had been

Page 73

 1    plundered and that plundering a city usually goes hand-in-hand with

 2    destruction of shop fronts and doors simply to allow the perpetrators

 3    access to the goods that they wish to steal.  This fact at least puts

 4    Kubura on inquiry notice.

 5            Second, the Trial Chamber failed to appreciate that the 3rd Corps

 6    command ordered the 7th Brigade to stop the destruction in Vares.  Again,

 7    this at least provided inquiry notice to Kubura.

 8            On 4 November 1993, when the 7th Brigade entered the deserted town

 9    of Vares, chaos erupted.  Not only did the soldiers steal everything they

10    could steal; they also destroyed property on a large scale.  As just has

11    been pointed out to you, the soldiers of the 7th Brigade shattered shop

12    fronts and broke down doors.  This destruction was done for the sole

13    purpose of plundering.  That's trial judgement 1846.

14            The result of the destruction was that practically all of the

15    shops in Vares had shattered windows.  Moreover, ABiH soldiers who

16    appeared to be drunk went around shooting their weapons; thereby causing

17    damage to buildings and houses.  Trial judgement 1844.

18            The soldiers of the 7th Brigade committed wholesale smashing of

19    shop windows, making off with goods, and smashing cars.  That's P448.

20            This destruction reached such a level that the OG Istok expressed

21    its alarm in two reports that were sent to the 3rd Corps command.  That's

22    P676 and P448.

23            The 3rd Corps command reacted by issuing orders to the 7th

24    Brigade.

25            Excuse me, I seem to have misread the number of the second

Page 74

 1    exhibit.  It should be P446.

 2            The 3rd Command reacted by issuing orders to the 7th Brigade to

 3    stop the chaos and destruction and the looting.  That's trial judgement

 4    1986.

 5            Of course, the Trial Chamber had no doubt that the large-scale

 6    destruction committed by the 7th Brigade in Vares met the elements of the

 7    crime of destruction; however, the Trial Chamber found that Kubura was not

 8    responsible for this crime under Article 7(3) on the basis that it did not

 9    meet the mens rea requirements.  This was an error.  At the very least,

10    Kubura was on inquiry notice.

11            The Trial Chamber committed either an error of law or an error of

12    fact, and we addressed that in our appeal brief.  Today I will limit

13    myself to the factual argument.  No reasonable Trial Chamber could have

14    concluded that Kubura had no inquiry notice for the destruction in Vares.

15            Now, in order to establish that Kubura knew of the destruction,

16    the Trial Chamber had to find that he had at least reason to know that his

17    subordinates committed destruction in Vares.  The Blaskic appeals

18    judgement in paragraph 64 states that:  "The authoritative interpretation

19    for the term 'reason to know' is still to be found in the Celebici appeals

20    judgement."

21            According to Celebici, the information that is received by the

22    commander must not compel the conclusion that a crime was committed.  It

23    is sufficient if it indicates the need for further inquiry.  Celebici

24    appeals judgement, paragraphs 236 and paragraph 241.

25            In this case, there are two evidentiary bases which both

Page 75

 1    independently show that Kubura had sufficiently alarming information that

 2    the 7th Brigade had committed destruction.  The first basis was that

 3    Kubura knew that the 7th Brigade had looted the whole town.

 4            This in and of itself automatically raises the question as to how

 5    did the perpetrators gain access to the looted goods if not through the

 6    destruction of shop fronts and doors; in other words, destruction goes

 7    hand-in-hand with the looting of a city.  And this was exactly the case in

 8    Vares.

 9            The Trial Chamber found that the destruction of shop fronts and

10    doors in Vares was committed with the sole purpose of committing plunder.

11            Given all this information, the fact that Kubura knew that the

12    town of Vares had been looted, as a minimum indicated to him that it was

13    necessary to further investigate whether the soldiers that had committed

14    the plunder -- his soldiers that had committed the plunder also had

15    committed the necessary correlate of such plunder, and that is the crime

16    of destruction.

17            Now, the second basis for Kubura's inquiry notice is the order of

18    the 4th of November to prevent chaos, looting, and destruction in Vares.

19    This order was received by the 7th Brigade.  That's trial judgement 1852.

20    And it was used by the Trial Chamber to establish that Kubura knew of the

21    crime of plunder in Vares.  Paragraph 1986.

22            The order is referred to in P446, the report of the 3rd Corps

23    command to the OG Istok.  The report explicitly states that the order was

24    that destruction in Vares had to be prevented.  Again, at a minimum,

25    Kubura was put on notice by this order that he needed to investigate

Page 76

 1    whether the 7th Brigade, his troops who were on the ground, who were in

 2    Vares, was involved in such destruction.

 3            A simple inquiry.  A simple inquiry with his soldiers, the

 4    3rd Corps command, the OG Istok, all international organisations who were

 5    present on the ground, would have revealed the 7th Brigade was responsible

 6    for the destruction.

 7            In summary, no reasonable Trial Chamber could have found that

 8    Kubura did not possess the necessary mens rea for failure to punish

 9    destruction in Vares.  And the Prosecution therefore requests that the

10    Appeal Chamber convict Kubura under count 5 for failure to punish the

11    crime of wanton destruction in Vares and to increase the sentence

12    accordingly.

13            That would conclude my submissions, unless Your Honours have

14    questions.

15            JUDGE POCAR:  Judge Liu has a question.  Please.

16            JUDGE LIU:  Well, are you suggesting to us that the Trial Chamber

17    bases the finding regarding Kubura's knowledge of the plunder as well as

18    destruction on the same set of the documents?  Namely, you know, the

19    orders, the reports.

20            MR. WIRTH:  Yes, Your Honours.  We are -- we are saying that the

21    order that is mentioned in P446 provided sufficient inquiry notice that

22    destruction had been committed by the 7th Brigade.  Obviously we also

23    have -- I just set out a second basis for that inquiry notice, and that is

24    the sheer fact that plunder -- that he was aware that plunder had been

25    committed, as was found by the Trial Chamber.

Page 77

 1            JUDGE LIU:  Thank you.

 2            JUDGE POCAR:  There are no other questions.  You can proceed.

 3            MR. WIRTH:  Thank you.

 4            Then Mr. Marwan Dalal will now address you on our fourth ground.

 5    Thank you.

 6            MR. DALAL:  Your Honours, my name is Marwan Dalal, and I will be

 7    presenting the fourth ground of the Prosecution's appeal, which relates to

 8    significant -- to an error in the trial judgement that is significant to

 9    the jurisprudence of the Tribunal.

10            This ground does not have, of course, an impact on the verdict of

11    the Trial Chamber.

12            The content of this ground is the duty of a superior under

13    Article 7(3) of the Statute to punish subordinates or a subordinate for

14    the commission of a serious violation of the laws and customs of war of a

15    war crime.  Also, the Prosecution submits that disciplinary measures as

16    such are not sufficient for the commander, for the superior to discharge

17    his duty under Article 7(3) of the Statute to punish subordinates.

18            And here I would like to clarify for the Chamber that the

19    Prosecution submissions relate to disciplinary measures.  And if the term

20    "summary disciplinary measure" had caused any confusion, the Prosecution

21    takes full responsibility for this, but the Prosecution would like to make

22    it clear that we address the disciplinary measures as such being not

23    sufficient for discharging the duty of a commander under Article 7(3) to

24    punish subordinates for the commission of war crimes.

25            The Prosecution's position is that the duty of a superior under

Page 78

 1    Article 7(3) must include the -- the duty to punish must include reporting

 2    the matter to the competent prosecutorial judicial authority.  The

 3    situation before us is very clear; we have a superior who either knows or

 4    had reason to know about the commission of serious violations of customary

 5    international humanitarian law and he is faced with a choice how to

 6    discharge his duty to punish.

 7            The Prosecution submits that in order for this choice to be legal,

 8    it must include reporting the matter for -- or reporting the matter to the

 9    competent prosecutorial judicial authorities.  The superior cannot -- the

10    military commander cannot confine the matter of punishment to internal

11    disciplinary measures of the military itself.

12            This is not to ask the impossible from the superior.  On the

13    contrary, it is to obligate him to do the reasonable, the necessary, and

14    the right thing at the same time.

15            I will now move on to identify the legal error of the Trial

16    Chamber, and then argue the four points that in the Prosecution's

17    submission, constitute the duty of the superior to punish by -- by

18    reporting the matter to the judicial -- to the competent prosecutorial

19    judicial authorities.

20            The Trial Chamber erred when it found that 30 to 60 days

21    imprisonment as a disciplinary measure taken by a superior was sufficient

22    to discharge the duty to punish for plunder.  And in case I had not

23    clarified, this submission relates to the war crime of plunder.

24            This -- this finding of the Trial Chamber contradicts Article 142

25    of the SFRY Criminal Code, which imposed a minimum of five years

Page 79

 1    imprisonment for the crime of plunder as a war crime.  It also does not

 2    correlate with the Trial Chamber on finding in paragraph 2041 that the

 3    plunder was widespread and significant.

 4            In paragraph 1777, the Trial Chamber had correctly described the

 5    law in relation to other crimes under Article 3 of the Statute; namely,

 6    murder and mistreatment, which the Prosecution in -- in the Prosecution's

 7    submission, it is the correct law.  The error, of course, not applying

 8    this law on the crime of plunder.

 9            I will quote briefly what the Trial Chamber said about the duty of

10    a superior to report the matter to the competent judicial authorities.

11             "The Chamber cannot over-emphasize that in international law a

12    superior has a duty to take the necessary and reasonable measures to

13    punish those who violate the laws or customs of war.  The accused

14    Hadzihasanovic could not consider as acceptable punishment the

15    disciplinary sanction of a period of detention not exceeding 60 days.  He

16    had the duty to take specific measures to ensure that the perpetrators

17    were prosecuted and to report accordingly."

18            Your Honours are also referred to the Strugar trial judgement in

19    paragraph 376, the Kordic trial judgement in paragraph 446, and the

20    Halilovic trial judgement, paragraph 97/98, that support this description

21    of the law.

22            The four points that in the Prosecution's submission establish the

23    duty of the superior to report to the competent prosecutorial authorities

24    the commission of a war crime by his subordinate as a measure of

25    punishment are the gravity of the crime of plunder, the insufficiency of

Page 80

 1    disciplinary measures, the duty imposed by customary international

 2    humanitarian law on superiors to report such crimes to the competent

 3    prosecutorial authorities, and lastly, the state's duty to investigate and

 4    prosecute war crimes mandates also the superior to report the issue to the

 5    competent prosecutorial judicial authorities.

 6            Your Honours, the gravity of plunder cannot be over-emphasized nor

 7    contested.  Plunder as a war crime had been -- has been defined as such,

 8    at least for the last 100 years.  It is prescribed in Article 3 of the

 9    ICTY Statute; Article 4 of the ICTR Statute; Article 8 of the

10    International Criminal Court Statute; and Article 4 of the Second Protocol

11    additional to the Geneva Conventions; Article 33 of the 4th Geneva

12    Convention; the Charter of the International Military Tribunal in

13    Nuremberg; Article 6, and also in Articles 28 and 47 of The Hague

14    Regulations concerning the laws or customs of war.

15            Plunder has accompanied the laws and customs of war as a serious

16    crime if committed, as I mentioned, for a long time, and one cannot

17    underestimate or over-emphasize the gravity of this grave.  The gravity as

18    such imposes a duty on the superior to transfer or to refer, to report the

19    matter to the competent prosecutorial authorities when he knows or had

20    reason to know that his subordinates committed such a crime.

21            In addition, disciplinary measures alone can never be sufficient

22    to discharge a superior's duty to punish under Article 7(3) of the

23    Statute.  Military discipline, as they are, are their purpose and they are

24    designed to look inwards into the military, to regulate the relationship

25    between superior and subordinate, and the functioning, the proper

Page 81

 1    functioning of the military.

 2            Its purpose is not to punish war crimes.  They could be part of

 3    the measures taken to punish war crimes, but they could never be alone, by

 4    themselves, sufficient to discharge a duty to punish war crimes by a

 5    superior.

 6            In paragraph 948 of the trial judgement, there's a description of

 7    the conduct that triggers -- that triggered the application of

 8    disciplinary measures.  The Trial Chamber mentions, for example, the

 9    conduct of desertion, abandoning one's post, refusing to fight or

10    disobeying soldiers.  These are, Your Honours, not war crimes and cannot

11    be considered as war crimes.  These are internal matters for the military

12    that do not take into account the outside of the military, as war crimes

13    or the punishment of war crimes should be taken.

14            Your Honours are also referred to the Rules of military discipline

15    of the Bosnia-Herzegovina army, P325 and Articles 3 and 7 in that exhibit,

16    where there's a description what is the conduct that is punishable through

17    disciplinary measures, and, of course, none of them mentions war crimes.

18            Disciplinary measures are often initiated unilaterally by the

19    military commander based on his discretion.  Most importantly, it

20    imposes -- these measures impose minimal sanctions compared with the

21    serious violations of laws and customs of war.

22            I refer Your Honours to Exhibit P120, decree law on service in the

23    Army of the Republic of Bosnia and Herzegovina, which stipulates the

24    sanctions that could be imposed through disciplinary measures.  These

25    include, for example, admonition, reprimand, overtime duty of up to three

Page 82

 1    shifts, confinement to leave the barracks compound for up to four days,

 2    demotion to a lower rank, prison for up to 60 days.

 3            These and other disciplinary measures are not reasonable by

 4    themselves to punish a war crime, including the war crime of plunder.

 5            The insufficiency of this measure also imposes a duty on the

 6    superior to report the matter to the competent prosecutorial and judicial

 7    authorities.  Customary international humanitarian law imposes a duty, a

 8    clear duty, on the superior to report the war crime to the competent

 9    prosecutorial authorities.  By reporting we mean - and without exhausting

10    the list - noting the place of the crime, the plunder; who were the

11    subordinate units or individuals who had -- who had participated in

12    plunder, or subordinates or individuals who had been at the scene of the

13    crime; and also reporting the reports that the superior should be asking

14    from his subordinates about what happened at the scene of the crime,

15    sending these reports to the competent prosecutorial authorities.

16            Article 87(1) as well as Article 87(3) of the First Additional

17    Protocol of the Geneva Convention of 1977 impose such a duty.  ICRC

18    commentary on Article 87 interprets this duty by saying that it includes,

19    and I'm quoting, "Remitting the case to the judicial authority, where

20    necessary, with such factual evidence as it was possible to find."

21            I refer Your Honours to ICRC commentary, paragraph 3562, page

22    1023.

23            In addition, the Statute of the International Criminal Court at

24    Article 28 explicitly stipulates this duty by saying that "The superior

25    will incur criminal liability if he failed" - and I'm quoting - "to submit

Page 83

 1    the matter to the competent authorities for investigation and

 2    prosecution."

 3            These clear duties, under customary international humanitarian

 4    law, are supplemented by state practice which include laws in national

 5    jurisdictions that also define such a duty of a superior to report the

 6    matter to the competent prosecutorial judicial authorities when knowing or

 7    having a reason to know about the commission of a war crime.  And I refer

 8    Your Honours to such legislation in Canada, Germany, Australia, and

 9    England, and I refer Your Honours to paragraph 5.25 of the Prosecution

10    appeal brief, where these laws are referred to explicitly.

11            Finally, Your Honours, the duty of states to investigate and

12    prosecute war crimes are another source for imposing a duty on the

13    superior to report the matter in question to the competent prosecutorial

14    authorities because without such a duty on the superior, the duty of

15    states could be rendered meaningless.  There's a clear link between the

16    knowledge of the superior and his material ability to take measures and of

17    the state to implement its duty to investigate and prosecute war crimes.

18    The duty of states to investigate and prosecute war crimes are enshrined

19    in Article 86 of the First Additional Protocol to the Geneva Conventions

20    and also in Rule 158 of the ICRC Study on Customary International

21    Humanitarian Law, which stipulates:

22            "States must investigate war crimes allegedly committed by their

23    nationals or armed forces or on their territory and, if appropriate,

24    prosecute the suspects."

25            This is in volume 1 of the study, page 607.

Page 84

 1            In conclusion, Your Honours, reporting the matter, reporting the

 2    commission of a war crime of plunder to the competent prosecutorial

 3    judicial authorities is a reasonable measure and a necessary one.  The

 4    superior can and should report about the commission of the war crime, the

 5    location of its perpetration, the identity of individuals or units who

 6    perpetrated the war crime or who were at the scene of the crime, as well

 7    as to transfer reports from his subordinates about the commission of the

 8    war crime.

 9            Reporting to the competent prosecutorial judicial authority must

10    be therefore a clear duty imposed on the superior in order for him not to

11    incur criminal liability under Article 7(3) for failing to punish.

12            Based on all of our submissions, Your Honours, the -- unless

13    Your Honours have questions, of course, the Prosecution respectfully

14    requests the granting of the relief sought in the appeal.

15            JUDGE POCAR:  Thank you.

16            Judge Meron.

17            JUDGE MERON:  Thank you, President.

18            Counsel, is your complaint or argument institutional; namely,

19    disciplinary versus criminal proceedings?  Or is it related to the maximum

20    penalties that can be imposed?

21            Imagine for a moment that you have disciplinary proceedings that

22    allow the imposition, say, of five years imprisonment.  Would you have a

23    quarrel with that too?

24            MR. DALAL:  It is -- our quarrel is -- relates to both.  It

25    relates to the procedure as such and the minimal sanction that we

Page 85

 1    identified in many states as -- in the supplement of our brief that

 2    usually the sanction is minimal and the procedure is quick.  The

 3    procedure, as I have indicated, relates to the direct relationship

 4    commander-subordinate, and organising and regulating the relationships

 5    within the military itself.

 6            So based on the experience of many national jurisdictions that we

 7    identified in the appendix to our brief, we can say that usually the

 8    sanction is minimal.  But if there's a theoretical example or actual,

 9    concrete exception that the sanction is high, this could give a

10    consideration to the matter.  However, the procedure issue is very

11    important and war crime deserves both a sincere -- a serious procedure as

12    a means of punishment and an adequate sanction.  So it is a cumulative

13    matter, not to select procedure over sanction or the opposite, or vice

14    versa.

15            JUDGE MERON:  Thank you.

16            JUDGE POCAR:  Thank you.

17            JUDGE SHAHABUDDEEN:  Counsel, my mind is open on this subject and

18    I'm grateful to you for your arguments.

19            Tell me, when one speaks of the duty of a superior to prevent or

20    punish, does punishment there have the same meaning as punishment by a

21    court of law?

22            MR. DALAL:  The duty of the superior of a military commander is to

23    take the reasonable and necessary measures.  Usually, of course, he

24    doesn't have the authority to prosecute.  So we cannot say that he has a

25    duty the same as the competent prosecutorial or judicial authorities.  But

Page 86

 1    as -- but the Prosecution submits that he is an important link leading to

 2    an adequate procedure and sanction of a war crime, and this link of

 3    reporting is indeed part of his duty as a superior.

 4            JUDGE SHAHABUDDEEN:  Judge Meron quite rightly pointed out to you

 5    some disciplinary sanctions could be severe.  Now, do you say that a

 6    superior officer who has imposed a disciplinary sanction of severity has

 7    not punished the subordinate in question?

 8            MR. DALAL:  He has punished.  And we can always find probably

 9    these exceptional situations of having the disciplinary measure including

10    a severe sanction.  However, on the empiric almost study, I should say,

11    that the Prosecution has on the matter, detailed in the appendix to our

12    submissions, written submissions, we could not find a place almost that

13    the disciplinary measure included such severe sanction.

14            Again, I repeat the submission that it is the punishment of a war

15    crime deserves these two elements:  A serious procedure, not a quick,

16    hasty one; and a -- and an adequate sanction, which fits the gravity of

17    the war crime as such.

18            JUDGE SHAHABUDDEEN:  Now, I shall, of course, read back your

19    written case and, in particular, the appendix to which you referred, but

20    do you offhand have any written authority you would care to refer me to on

21    the subject?

22            MR. DALAL:  On the subject of the duty of the superior?

23            JUDGE SHAHABUDDEEN:  Yes.  On the subject which you are raising,

24    that a disciplinary sanction is not a sufficient measure to discharge the

25    duty of a superior officer to punish.

Page 87

 1            MR. DALAL:  If Your Honour means by "authority" an academic

 2    article by a leading academic, we don't have as such.  But the

 3    Prosecution's position is that the clear understanding and interpretation

 4    of the duty of a commander under Article 87 of the First Protocol of the

 5    Geneva Conventions and its interpretation by -- or the commentary by the

 6    ICRC clearly lead to the conclusion that there is such a duty, combined

 7    with the explicit mentioning of the matter in the Statute of the

 8    International Criminal Court.

 9            JUDGE SHAHABUDDEEN:  Counsel, you may well be right.  I shall have

10    to look it up.

11            JUDGE POCAR:  I understand this concludes your response.  There

12    are no other questions.

13            If -- sorry, your appeal.  I was saying "your response."

14            Now, so we can move to the responses.  Okay.  So we start --

15    according to the schedule, the response by Hadzihasanovic Defence.  So

16    please.

17            MR. BOURGON: [Interpretation] May it please the Court.

18            [In English] Good morning, Mr. President.  Good morning Honourable

19    Judges of the Appeals Chamber.  Before I begin, allow me to say that this

20    is both for my colleague and I a -- an honour and a privilege to appear

21    before you this morning.

22            This is a first for both my colleague and I, having both been

23    working at the International Tribunal for some ten years, and it does have

24    a special meaning for us.  Personally, when I was invited more than six

25    years ago now as proceedings were beginning against General Hadzihasanovic

Page 88

 1    in July of 2001, I was invited to join his Defence team and I decided to

 2    leave the comfort of a secure United Nations position working for the

 3    Honourable Judges of the Court in order to undertake this important

 4    endeavour.

 5            Little did I know then that more than six years later I would be

 6    standing before you in this very -- very same Appeals Chamber and in the

 7    same case, handling the proceedings against General Hadzihasanovic.

 8            I insist on the figure "more than six years" because it is, in our

 9    submission, included in the impact of these proceedings, the impact that

10    these proceedings have had on General Hadzihasanovic ever since he was

11    charged in July of 2001 and immediately surrendered in the custody of the

12    International Tribunal.

13            We believed then, Mr. President, that the command responsibility

14    charges laid against General Hadzihasanovic were not warranted, and as can

15    be seen from the grounds of appeal raised against the trial judgement,

16    which we will address tomorrow, we still believe that this is the case.

17    Nonetheless, we must today respond to the Prosecution's submission that

18    the sentence of five years imposed on General Hadzihasanovic was

19    manifestly inadequate and unreasonable.

20            In this regard, Mr. President, we submit - and I will have the

21    opportunity to do so tomorrow - that the Trial Chamber committed numerous

22    errors during the trial of General Hadzihasanovic, errors of law, errors

23    of fact, as well as errors which have impeded on the appellant's right to

24    a fair trial.

25            In our submission, however, sentencing is not one of those errors.

Page 89

 1    That is, of course, on the basis of the counts for which

 2    General Hadzihasanovic was found guilty, and that is eight specific

 3    incidents based on two counts; whereas, he was tried for 29 different

 4    incidents based on seven counts.

 5            Looking specifically at the eight incidents for which the Trial

 6    Chamber found General Hadzihasanovic guilty, we are of the view that the

 7    sentence could have been lower.  We came to this conclusion on the basis

 8    of both his role and the form and degree of his participation, as well as

 9    the gravity of the incidents for which he was found guilty and those for

10    which he was found not guilty.

11            That being said, we could not identify any discernible error on

12    regard of the -- in this regard on the part of the Trial Chamber.

13            There is, in our submission, no error which could warrant a

14    reduction and no error which could justify or require an increase in

15    sentence.  Consequently, our position on the Prosecution's appeal is, as

16    expressed in our written pleadings, the following:

17            Firstly, we believe that the adjudication of our appeal, that is,

18    the appeal lodged on behalf of General Hadzihasanovic, will render the

19    Prosecution's appeal ground on sentencing moot.

20            Secondly, should that not be the case, there are no reasons or

21    justifications to modify the sentence imposed.

22            The first issue I would like to address in response to the

23    Prosecution appeal on sentence is the character of the respondent who

24    stands before you today and whom you will have the opportunity of hearing

25    tomorrow.  The Prosecution did not address the character of

Page 90

 1    General Hadzihasanovic in its argument.  It is our respectful submission

 2    that the main issues in this Prosecution appeal over above -- and I weigh

 3    my words -- over and above the gravity of the crimes for which he was

 4    found guilty, which was considered by the Trial Chamber, we believe that

 5    the main issues are the character of the accused, the manner in which he

 6    exercised his command in the most difficult of circumstances, and the form

 7    and degree of participation of General Hadzihasanovic in the crimes for

 8    which he was found guilty.

 9            Without repeating our submissions in our written pleadings, we do

10    feel that it is important to draw the attention of the Appeals Chamber on

11    some of these issues.

12            We need to remind and we wish to recall the Appeals Chamber that

13    this is a case of a commander who, despite impossible circumstances,

14    succeeded in accomplishing the mission he was entrusted with, which is the

15    overall objective of a commander, while at the same time taking countless

16    measures to prevent his subordinates from committing violations of

17    international humanitarian law and breaches of discipline alike and to

18    have them punished if they did.

19            General Hadzihasanovic, throughout his tenure as commander of the

20    3rd Corps, a period of approximately ten months, stressed the importance

21    of training for his troops, including training on international

22    humanitarian law.

23            In relation to the military police, the Trial Chamber found that

24    General Hadzihasanovic had reminded on several occasions the military

25    police or the Military Police Battalion to take all necessary measures to

Page 91

 1    detect and prevent criminal activities.  The policy of the 3rd Corps in

 2    this respect is clear and stands out from the evidence.

 3            Following orders of General Hadzihasanovic, the 3rd Corps Military

 4    Police Battalion filed no less than 377 criminal reports involving 804

 5    identified and 20 unidentified persons; that is, during the period from 14

 6    September 1992 to 1 March of 1994.  This, Mr. President, the Trial Chamber

 7    did refer in its judgement.

 8            However, there's further evidence which the Trial Chamber did not

 9    refer to in its judgement which we feel is relevant at this point in time.

10            The Trial Chamber did not refer to document DH119.  This is a

11    report from the Travnik District Military Prosecutor for the year 1993.

12    According to this report, no less than 823 criminal reports were filed

13    before the district military prosecutor against 1.044 persons.  From these

14    persons, 8 -- sorry, 627 were ordinary members of the Army of

15    Bosnia-Herzegovina, 386 were conscripts, also members of the army.

16            The Trial Chamber did not refer also to another important exhibit,

17    DH274.  This is a report from the Zenica District Military Court, a

18    different district.  The report deals with the -- with the report -- with

19    the period from 1 January until 10 December of 1993.  During this period,

20    different district, different court, 432 criminal cases were laid against

21    persons of members of the 3rd Corps of the Army of Yugoslavia -- Army of

22    Bosnia and Herzegovina against 869 individuals.

23            The types of offences which were looked at by all of these reports

24    are mentioned in the one report which the Trial Chamber did refer to, and

25    that was DH155.2, and the types of offences include 16 identified

Page 92

 1    perpetrators in relation to murders; 8 for involuntary manslaughter; 9 for

 2    grievous bodily harm; 1 for double murder; and 1 for violent conduct.

 3    Violent conduct in this regard refers to Article 204 of the Criminal Code

 4    of the SFRY, which I will refer to tomorrow in one of my arguments.

 5            Mr. President, when I look at -- sorry.

 6            When I look at the Prosecution appeal, first we must look in the

 7    manner in which he exercised his command, but also we also must refer to

 8    the arguments of the Prosecution concerning the gravity of the crimes,

 9    which it says was ignored.

10            We believe, Mr. President, that the gravity of -- factor was not

11    ignored by the Trial Chamber.  The gravity factor includes both the crimes

12    themselves - we agree with the Prosecution on this - and the form and

13    degree of participation of the accused.  It is our submission that the

14    Trial Chamber considered both and that it stands out from our written

15    submissions.

16            We also submit, Mr. President, that the Trial Chamber rightly

17    focused on the form and -- and degree of participation based on the fact

18    that this is exclusively a command responsibility case.

19            The Trial Chamber did conclude that nothing in the evidence would

20    allow the responsibility of the respondent to be assimilated or linked to

21    individual responsibility under Article 7(1) of the Statute.  In this

22    regard, it is indeed very important to focus on the seriousness of the

23    omission, to use the words of one of your -- of the Honourable members of

24    this Appeals Chamber.  The Prosecution's argument regarding rank and

25    position, we respectfully submit, are misconceived.  It is simply not

Page 93

 1    automatic that when you have a high-ranking superior, he deserves a

 2    harsher punishment.  There are instances where this will be the case, as

 3    explained in our written pleadings, and there are instances where it will

 4    be the contrary, and this will work to his advantage.

 5            Looking at the seriousness of the omission, it is important to

 6    note the distance between the accused, now the respondent, and the events

 7    which took place or the crime which were committed; for example, the

 8    beheading in Orasac.  The beheading in Orasac, it is, of course, a very

 9    severe event, a very grave crime, something that we would all like to

10    avoid, but we have to also remember it took place at a place when no one

11    within the 3rd Corps was even aware that civilians had been taken to a

12    camp in Orasac.

13            When we assess the severity of the omission, these events -- these

14    factors must be taken into consideration.

15            Regarding the Prosecution's argument misapplication of good

16    character, we submit that the Trial Chamber did not make any mistake, did

17    not make any mistake in considering the intelligence and good education of

18    General Hadzihasanovic, as well as his lack of theoretical and practical

19    training.

20            One issue not mentioned today by the Prosecution but which is

21    found in its brief refers to the fact that the sentence -- or the crimes

22    of which he was found guilty would have attracted a minimum penalty of

23    five years in the former Republic of Yugoslavia.  We believe that this

24    argument is incorrect, as has been explained in our brief.  And I refer

25    more specifically to Articles 41, 42, and 43 of the Criminal Code of the

Page 94

 1    Socialist Republic of the former Yugoslavia, which explains why this is

 2    not the case.  And I'll be glad to answer any questions you may have in

 3    this regard.

 4            It follows, Mr. President, that the Trial Chamber did not commit

 5    any discernible error regarding sentencing and there is no reason for the

 6    Appeals Chamber to disturb the finding or the sentence imposed by the

 7    Trial Chamber.

 8            If I have a few minutes, I can address quickly the last ground.

 9            JUDGE POCAR:  Two minutes, but Judge Meron wants to address a

10    point.

11            JUDGE MERON:  Just very briefly, a question of clarification.  You

12    mentioned cases referred to the military prosecutor.  They appear not to

13    involve destruction or plunder of property?  Is my understanding correct?

14    And if it is, why?

15            MR. BOURGON:  Judge, thank you very much for your question.  This

16    report, I simply highlighted the gravest crime against person, but they

17    also included all other types of crimes.  But my aim was to highlight that

18    General Hadzihasanovic did not let anything go unpunished.

19            JUDGE MERON:  And the other crimes - namely, property crimes -

20    also let to prosecutions?

21            MR. BOURGON:  Indeed, Mr. President.  In some cases, yes; in some

22    cases, no.

23            JUDGE MERON:  Thank you.

24            MR. BOURGON:  With regard to the last ground of appeal, I will

25    make a very quick argument.  Simply to say that we disagree with the

Page 95

 1    Prosecution's submission because it doesn't focus on the responsibilities

 2    and the duties of the commander.  What is important when dealing with

 3    Article 7(3) of the Statute is to deal with whether the measures taken or

 4    the failure to take measures is a necessary and reasonable character of

 5    the measures.  In some cases, a disciplinary punishment might be

 6    sufficient.  In other cases, a criminal report will indeed be required.

 7    In some cases, an investigation or reporting the matter to a superior

 8    officer will be sufficient.

 9            Thank you very much, Mr. President.  This concludes my argument.

10    I will be glad to answer any questions you may have.

11            JUDGE POCAR:  Thank you, Mr. Bourgon.

12            MR. BOURGON:  Thank you, Mr. President.

13            JUDGE POCAR:  There are no questions.

14            Well, we're a bit ahead of schedule, but perhaps it's wise to

15    break now, because -- unless -- unless Kubura's Defence would start for

16    ten minutes, but then we have to break.  So it's up to you.

17            MR. DIXON:  Thank you, Your Honour.  Perhaps it would be best to

18    have the break now and then do it in one go.

19            JUDGE POCAR:  That's fine.

20            So we'll have the break now for 20 minutes.  That means at 12.10

21    we'll reconvene.

22                          --- Recess taken at 11.50 a.m.

23                          --- On resuming at 12.07 p.m.

24            JUDGE POCAR:  So the hearing is resumed.

25            I will now give the floor to the Defence of Mr. Kubura for their

Page 96

 1    response.

 2            MR. DIXON:  Thank you, Your Honours.

 3            JUDGE POCAR:  You have the floor, Mr. Dixon.

 4            MR. DIXON:  Your Honour, I will not be --

 5            MS. RESIDOVIC: [Interpretation] We apologise, Your Honour, for

 6    being late.

 7            MR. DIXON:  Your Honour, I will not be addressing the fourth

 8    ground of the Prosecution's appeal, as it has no impact on Mr. Kubura's

 9    appeal or our response to the Prosecution's appeal.  I will limit my

10    submissions to grounds 2 and 3, starting with the destruction in Vares.

11            Our response is in two parts:  Firstly, there's no error of law

12    that the Prosecution has shown.

13            The Trial Chamber quite clearly stated - and this is at paragraph

14    1853 - that it did not find that the Prosecution had proved that the

15    respondent knew or had reason to know of destruction.  It did not limit

16    its finding to -- to actual knowledge.  It looked at the component of

17    reason to know as well.  And certainly, in taking into consideration the

18    various orders and reports that the Prosecution have referred to, it is

19    evident that they were looking not only at actual knowledge and direct

20    knowledge but also all of the surrounding circumstances to determine

21    whether any inference could be drawn from that evidence which could

22    suggest that there were reasons to know of the destruction.

23            Secondly, the -- the other error of law referred to by -- by the

24    Prosecution also has no merit, in our submission.  The Trial Chamber did

25    not find that there was a requirement of a superior's certainty of the

Page 97

 1    commission of crimes.  It applied the well-established standard of proof

 2    that the Trial Chamber must be certain or sure that the evidence shows

 3    that the accused knew or had reason to know of the crimes.  This is the

 4    well-established standard of beyond reasonable doubt.  And that is at

 5    paragraph 1852.

 6            Your Honour, in addition, in our submission, the findings of the

 7    Trial Chamber need to be looked at in the context of the judgement as a

 8    whole.  And I refer Your Honours here to paragraphs 309 and 311 of -- of

 9    the judgement, where at paragraph 311 the Trial Chamber specifically notes

10    that it subscribes to the idea that although an inference can be made from

11    direct or circumstantial evidence, it must be reasonable and narrowly

12    construed.  Consequently, the Chamber rejects any inferences based on a

13    series of inferences.  In addition, in cases where several inferences may

14    be made on the basis of the same evidence and they are equally plausible,

15    the Chamber considered that it could not hold the most prejudicial

16    evidence against the accused, except in cases where the inference most

17    favourable to the accused cannot be upheld in view of the facts of the

18    case.

19            In our submission, a perfectly reasonable mode of analysing the

20    evidence and applying the correct standard of proof, which we say was done

21    in respect of the -- the charge of destruction in Vares.

22            Moving on then to the second part of -- of this appeal ground.

23    There was no error of fact, in our submission, either.  The Trial Chamber

24    has considered all the evidence.  The Prosecution has not asserted that

25    the Trial Chamber overlooked any piece of evidence, and it has not found

Page 98

 1    beyond reasonable doubt that that evidence showed the requisite knowledge.

 2            In particular, the Trial Chamber found that the orders of the

 3    operational group command to the 3rd Corps on 4 November - and we've

 4    referred to these a number of times now, but for the record, those two

 5    orders are P445 and P676 - and the 3rd Corps command response on the same

 6    day, that being order P446, the Trial Chamber found that they do not on

 7    their face establish Mr. Kubura's knowledge of destruction.

 8            It is worth taking into account at this point that there was no

 9    other evidence before the Trial Chamber concerning these particular

10    documents.  No witnesses were called to explain the context of these

11    documents, how they were to be interpreted or implemented.  And the

12    Trial Chamber at para 297 and the paragraphs that follow provides an

13    explanation, an analysis of how it viewed such documents.

14            I will only read paragraph 297, where the Trial Chamber says:

15    "The Chamber obviously attached more weight to documents witnesses

16    explained in a convincing fashion than to documents submitted in

17    isolation, and therefore without a witness's comments and observations."

18            Once again, a perfectly reasonable conclusion, in -- in our

19    submission.

20            There was, thus, no evidence that the 3rd Corps command in the

21    context of those orders expressed any concern to Mr. Kubura after it had

22    received reports of destruction from the OG command.  The Trial Chamber

23    explicitly says at paragraph 1852 that it is possible that some concerns

24    were expressed but it finds that the evidence does not show that that is

25    established beyond reasonable doubt.

Page 99

 1            In other words, to apply the jurisprudence that the Prosecution

 2    referred to, the Trial Chamber found that it was not proved beyond

 3    reasonable doubt that there was information conveyed to Mr. Kubura which

 4    indicated that there was destruction or that further inquiry was needed.

 5            In our submission, a reasonable Trial Chamber could have reached

 6    such a conclusion on the evidence.  And the reasoning of the Trial Chamber

 7    cannot be faulted in this regard.

 8            Moreover, Your Honours, in our submission, the Prosecution is

 9    wrong to suggest that because a commander has knowledge of acts of

10    plunder, it follows that he must also have knowledge of other crimes.  It

11    is, in our submission, the most basic of principles that the Prosecution

12    must prove the requisite knowledge for the particular crimes charged,

13    whether those be plunder or destruction or cruel treatment, and so forth.

14            The Prosecution is, in our submission, wrong to assert that the

15    evidence in respect of plunder in Vares was the same as the -- the

16    evidence that the Prosecution relied upon in respect of destruction.

17            This is set out in more detail in our response brief at paragraphs

18    13 through to 15.  In particular, I would draw Your Honours' attention to

19    P468, an order from the 2nd Battalion of the 7th Brigade, which I referred

20    to in my earlier submission, which was a particular document relied upon

21    by the Trial Chamber in respect of plunder, which did not apply to

22    destruction and for which there are no similar documents in respect of

23    destruction.

24            Also, document P675, which was the -- the document, Your Honours

25    will recall, that required the commander of the 7th Brigade to take

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 1    action, did only mention that action was required to prevent goods from

 2    being removed.  There's no mention of destruction, a distinction, in our

 3    submission, that a reasonable Trial Chamber could certainly make and place

 4    reliance upon in determining whether all of the evidence showed beyond

 5    reasonable doubt that Mr. Kubura knew or had reason to know.

 6            And finally, Your Honours, there was no finding of destruction in

 7    respect of Ovnak in June 1993.  Mr. Kubura was acquitted of failing to

 8    prevent or punish destruction in the Ovnak area.  That was in respect of

 9    count 5.  And this is a -- a verdict which the Prosecution has not

10    appealed, so there can be no suggestion of a continuing pattern starting

11    in Ovnak and continuing through to Vares.

12            Lastly on -- on this point of an error of fact, the -- the

13    Prosecution has drawn Your Honours' attention to the document which I've

14    just mentioned, P675, as a document which orders that all unauthorised

15    acts are to cease.

16            In our submission, this document cannot be interpreted to refer to

17    destruction on its face.  The unauthorised acts are not specified, and nor

18    are any units specified, as I reiterated earlier, in this multi-brigade

19    operation.  And it is significant that there is no specific mention of

20    destruction.

21            Once again, the Trial Chamber acted perfectly reasonably, in our

22    submission, in finding that that document, amongst a series of documents,

23    did not cross [Realtime transcript read in error "Kosovo"] the threshold

24    of proving knowledge beyond a reasonable doubt.

25            In sum, Your Honours there, has been no error in the reasoning of

Page 101

 1    the Trial Chamber which has resulted in a miscarriage of justice, and the

 2    Appeals Chamber is thus respectfully invited to reject this ground of

 3    appeal from the Prosecution.

 4            I will now move on now to the final ground, ground 3, in respect

 5    of sentence.

 6            Your Honour, there's one correction to the transcript, and that's

 7    at page 36, line 3.  I didn't mention the word "Kosovo."  I mentioned the

 8    word "cross" the threshold of proving knowledge.  A small correction.

 9            In -- in respect of sentence, Your Honour, our submission is that

10    the Trial Chamber probably -- properly took into account all relevant

11    factors, and there are -- are five points only which I wish to make,

12    briefly, in this regard, all relevant factors which were taken into

13    account and properly assessed by the -- the Trial Chamber.

14            Firstly, that -- this case in respect of Mr. Kubura is a somewhat

15    unusual one in that the sole conviction is for failing to prevent and/or

16    punish looting under Article 7(3), when he was acquitted of all of the

17    more serious offences.

18            Secondly, as was indicated in the president's order of 11 April

19    2006, property-related crimes are to be regarded in the jurisprudence of

20    the Tribunal, and indeed national jurisdictions, as relatively less

21    serious crimes than those against the person.  And that's at paragraph 8

22    of the 11 April 2006 order.

23            Thirdly, it is significant, in our submission, that the

24    Prosecution initially recommended ten years of imprisonment for Mr. Kubura

25    for the entire indictment, which included over 30 murders, detentions, and

Page 102

 1    cruel treatment.  In our submission, it would be wholly disproportionate

 2    for the Prosecution now to suggest that a sentence for failing to punish

 3    two instances of looting on two days should be any higher than that

 4    imposed by the Trial Chamber, especially considering that we are only

 5    talking about convictions for two counts out of sixteen and for

 6    property-related offences only.

 7            The recommendation of the Prosecution is found at transcript

 8    reference 19108 to 19109.

 9            Fourthly, it is, of course, well-established in the jurisprudence

10    of the Tribunal that sentences should not be out of reasonable proportion

11    with a line of sentencing passed in similar circumstances for -- for the

12    same offences.  There are no similar cases, in respect of this particular

13    one, and I add as well that persons have not been charged before the

14    Bosnian war crimes national courts to date purely for property-related

15    crimes.  However, what can be said with -- with some certainty is that

16    this sentence is on the lower end of the scale and should remain so, in

17    comparison to slightly higher and higher sentences that have been passed

18    and approved for more serious crimes against person.

19            And lastly, Your Honours, in our submission, it must be mitigation

20    if steps are taken to prevent the continuation of a crime.  If the

21    evidence is that as soon as a person knows or is on notice that a crime

22    may be being committed and steps are taken to intervene, that is a factor

23    which must be taken into consideration and most properly taken into

24    consideration by the Trial Chamber as a mitigating factor, as opposed to

25    allowing, which could be regarded as aggravating, crimes to continue

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 1    indefinitely.

 2            So in our submission, there are no manifest errors in the

 3    reasoning of the Trial Chamber in respect of sentence and the

 4    Prosecution's appeal in that respect should be rejected as well.

 5            Those are my submissions, Your Honours.

 6            JUDGE POCAR:  Thank you, Mr. Dixon.

 7            Any questions from the Bench?  I don't think it's the case.

 8            We can move on to hear the reply by the Prosecution.

 9                          [Prosecution counsel confer]

10            MR. WIRTH:  Your Honours, I'll be very short on the reply with

11    regard to the first and second ground of appeal.

12            Counsel for Mr. Kubura stated that there was no evidence that the

13    3rd Corps command expressed concern with regard to the destruction in

14    Vares.  Now, that is not entirely correct.  As we know from Exhibit P446,

15    the 3rd Corps command sent an order to stop the destruction, inter alia

16    the destruction.

17            The only thing that is not expressly spelled out in P446 with

18    regard to the contents on the -- of the order is who were the

19    perpetrators.

20            The 7th Brigade is not mentioned in P446.  And in that regard, our

21    submission is that Kubura had at least inquiry notice.  He at least needed

22    to go and look whether his own troops were involved in that plunder about

23    which the 3rd Corps command did express concern.

24            The second point I'd like to make is Defence counsel's submission

25    that it is wrong that acts of plunder imply knowledge of acts of

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 1    destruction.  Well, that's not exactly our submission.  Our submission is

 2    that if a perpetrator knows that a whole city has been looted -- excuse

 3    me, if an accused knows that a whole city has been looted, that that puts

 4    him on inquiry notice to find out how the perpetrators could have achieved

 5    the looting.

 6            And in this case, as in many other cases where towns are looted,

 7    it has been achieved by breaking shop fronts and -- and breaking in doors.

 8            The third point is that counsel mentioned there was no finding of

 9    destruction in Ovnak.  Now, that is correct, but the reason why there was

10    no finding is because the Trial Chamber was not able to distinguish

11    between the destruction carried out by the Croat forces and the

12    destruction carried out by ABiH troops.  That's in -- and the Trial

13    Chamber was therefore unable to identify the perpetrators of the

14    destruction that had happened in Ovnak.  That's paragraph 1832.

15            Now, in Vares we do know that the perpetrators of the destruction

16    were members of the 7th Brigade, and that is the distinction.

17            That would end my reply, unless Your Honours have questions.

18            JUDGE POCAR:  Thank you.  I don't believe there is any further

19    question.

20            MR. WIRTH:  Then my colleague Ms. Barbara Goy will now reply to

21    the sentencing.

22            JUDGE POCAR:  Yes.

23            MS. GOY:  I will first briefly reply to the issues raised by the

24    Defence for Hadzihasanovic.

25            The Defence has pointed to the context of the good character and

Page 105

 1    the manner of command of Hadzihasanovic.  The Trial Chamber took both of

 2    these factors into account in paragraph 2080.  It took into account that

 3    he had a character that can be rehabilitated and inter alia relied on the

 4    prior -- lack of prior criminal record and prior good reputation, which

 5    the Prosecution has not challenged, and also relied on the fact that he

 6    worked to enforce the rules of IHL.

 7            Regarding the gravity for liability under 7(3), as well as the

 8    points raised on the Yugoslav law, we rely on our brief.  And for the last

 9    part, particularly refer Your Honours to paragraphs 2.22 through 2.24 of

10    our reply brief.

11            With regard to the sentencing appeal regarding Kubura, the Defence

12    seems to suggest that it is incompatible for the Prosecution to have at

13    trial requested a sentence of ten years imprisonment and despite all the

14    acquittals, now appealing the sentence of two and a half years as

15    manifestly inadequate.  This seems to imply that the sentence is composed

16    of an addition of individual sentences for the underlying convictions.

17    However, according to Rule 87(C), the Trial Chamber can either impose a

18    sentence in respect of each finding of guilt and say whether it's to be

19    served consecutively or concurrently, or like in this case, impose a

20    single sentence which reflects the totality of the criminal conduct.

21            In the latter sense, we would like to point out that plunder needs

22    to reach a certain level of seriousness in order for this Tribunal to have

23    jurisdiction, as the Trial Chamber in the legal part of the judgement

24    pointed out in paragraph 55.

25            This coupled with the aggravating factors of the systematic

Page 106

 1    plunder and the personal involvement leads us to the conclusion that the

 2    sentence of two and a half years is manifestly inadequate.

 3            Thank you.

 4            JUDGE POCAR:  Thank you.

 5            Is this concluding your submissions?

 6            MS. GOY:  Yes, Your Honour, it concludes our submissions.

 7            JUDGE POCAR:  Is there any ...?  I don't believe any further

 8    question.

 9            We -- so this concludes the -- the Prosecution -- the

10    consideration of the Prosecution appeal.

11            Mr. Bourgon.

12            MR. BOURGON:  Thank you, Mr. President.

13            I would simply like to apologise once again for disrupting these

14    proceedings and being late.  We apologise, and we are indeed very sorry.

15            Thank you, Mr. President.

16            JUDGE POCAR:  Thank you.

17            Well, we can adjourn now, and we continue tomorrow morning at 8.30

18    to hear the appeal from Mr. Hadzihasanovic.

19                          --- Whereupon the hearing adjourned at 12.35  p.m.,

20                          to be reconvened on Wednesday, the 5th day

21                          of December, 2007, at 8.30 a.m.