1 Monday, 27 June 2005

2 [Defence opening statement]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 2.18 p.m.

6 JUDGE LIU: Call the case, please, Mr. Court Deputy.

7 THE REGISTRAR: Good afternoon, Your Honours. This is case number

8 IT-01-48-T, the Prosecutor versus Sefer Halilovic.

9 JUDGE LIU: Thank you. This afternoon, we will hear the opening

10 statement of the Defence first. If we have time, we will call the first

11 witness. As for the break, I'm entirely in the hands of the parties. If

12 you feel that you need a break, just inform us.

13 Mr. Morrissey, are you in a position to deliver your opening

14 statement, I mean physical condition.

15 MR. MORRISSEY: I'm grateful for the question, Your Honour, but

16 yes, the time has come to start.

17 JUDGE LIU: Thank you. You may begin.

18 MR. MORRISSEY: Thank you, Your Honour. Thank you very much,

19 Your Honours. It's time to start the Defence case and yet paradoxically

20 it's almost finished already because it was the Defence position to put as

21 much evidence as was possible to put through the Prosecution case. It was

22 the Defence position to elicit answers from the witnesses as the

23 Prosecution themselves did which is relevant to the indictment that's

24 before you, not to any other case, not to any other document, but to that

25 indictment. For that reason, the Defence asked many questions of

1 witnesses and put many documents to those witnesses, and therefore,

2 Your Honours, the Defence case is going to be now - what remains of it -

3 is going to be short and focused on some specific issues.

4 The reason why the Defence took the stance that we did is because

5 of a fundamental feature of this Tribunal, and that is that the onus or

6 the burden of proof is squarely upon the Prosecution in this case to prove

7 the guilt of Sefer Halilovic beyond a reasonable doubt as charged in the

8 indictment that you have. And in light of that, it's for the Prosecution

9 to exclude every other reasonable conclusion than that of guilt of

10 Sefer Halilovic. Now, this Tribunal consists of professional judges who

11 have been in the position of having to apply this standard before and it's

12 not intended in any way to be a bad reflection upon the Tribunal to make

13 some comments about what exactly it means to be presumed innocent.

14 In the case of Sefer Halilovic, it is anything but an artificial

15 presumption. What I'd like to do is just to read a quote to you from the

16 Pohl case, an old case, that says this: "Every defendant in a criminal

17 case is presumed to be innocent until the Prosecution, by competent and

18 credible proof, has shown his guilt to the exclusion of every reasonable

19 doubt. This presumption of innocence follows him throughout the trial

20 until such degree of proof has been adduced. Beyond a reasonable doubt

21 does not mean beyond a vain, imaginary or fanciful doubt, but means that

22 the defendant's guilt must be fully proved to a moral certainty before

23 he's condemned. And the human significance of that approach is apparent

24 when you deal with an accused person like Sefer Halilovic. Of course,

25 that protection attaches to everyone in this Tribunal but in the case of

1 Halilovic, you know because the Prosecution have led the evidence to this

2 effect, that he was not an ethnic cleanser. He was not a person who was

3 for division, who favoured cruelty or anarchy. He was a person who took

4 over the management of the Bosnian army when it was in its infancy and

5 throughout one and a half trying years of involvement in that army, he did

6 nothing but endeavour to bring order to that army.

7 The Prosecution evidence clearly proved that Halilovic was a

8 person who attempted to bring order, and in a situation of potential chaos

9 and collapse of a state, the effort to bring order is itself a significant

10 contribution to human rights, and a background against which other human

11 rights can be developed. And a background against which the human rights

12 required by international humanitarian law to be protected can be

13 protected. And as well as attempting to bring order, Sefer Halilovic

14 attempted to promote a vision of the army and of the state which was of a

15 multi-ethnic Bosnia. You are absolutely not called upon here to

16 adjudicate the rights and wrongs of the struggle between the warring

17 parties, and you do not have to and there is law to say that you

18 shouldn't. But you can take very strongly into account the stance that

19 Sefer Halilovic always adopted, and that was to stand against the division

20 of Bosnia along ethnic lines and the division of the army along ethnic

21 lines. Always Sefer Halilovic stood for an army which would be

22 multi-ethnic in character, based upon the Presidency platform which was

23 put into evidence through General Karavelic, who was one of the last

24 witnesses.

25 And in those circumstances, it takes a huge amount of believing

1 that Sefer Halilovic could commit the crimes he's charged with. It's an

2 amazing story that a person such as Halilovic could commit these crimes.

3 So the evidence against him needs to be very clear, very unequivocal, and

4 it's for that reason that I take the trouble and I trouble you to hear

5 what you already know, and that is that he's presumed innocent and that

6 the Prosecution have a very high mountain to climb and a very high hurdle

7 to jump before they can satisfy you that he is guilty of the crime he's

8 charged with, and it has to be remembered as well that that crime is

9 murder. There was a moment of tragedy in this Court when Sefer Halilovic

10 sat in the dock and Ramiz Delalic, Celo, gave evidence. And we ask the

11 Tribunal to consider whether that is bringing peace and stability to

12 Bosnia. To put the peace maker in the dock, and a man who the Prosecution

13 in their own pleadings, and I make it quite clear when I say this, I rely

14 on the indictment, the Prosecution position was and presumably remains

15 that Ramiz Delalic himself was a war criminal who was a commander of units

16 of the 9th Brigade detached from that unit, and who gave an order to bury

17 bodies.

18 I'll say something more about this later but, of course, you would

19 wonder and you would have wondered at the time, why do they call Ramiz

20 Delalic? The answer is because they had to. He has been in their case

21 since 1998. He's there today. Never can they escape him. They are tied

22 to Ramiz Delalic, and there they will stay.

23 Your Honours, could I move from that to some applications of the

24 burden and the standard of proof in this Tribunal? The Prosecution have

25 to prove, and it's axiomatic that they do, each element of the crime

1 beyond reasonable doubt. And that applies of course to each of the three

2 paths which the Prosecution seek to follow to a conviction for murder in

3 this Tribunal. They must prove each of the elements beyond a reasonable

4 doubt and a failure on any of those elements results in acquittal. The

5 same standard of proof applies to important or significant facts in the

6 case.

7 Now, it is never the case that the Prosecutor must prove every

8 detail beyond a reasonable doubt. Always, the Prosecutor will lead

9 evidence that will change in some small particulars, the memory of

10 witnesses changes, but any fact that is significant in the Prosecution

11 case, that is a necessary step on the way to a conviction, must itself be

12 proved beyond reasonable doubt. Let me give an example of what I mean.

13 It's important when the Prosecution accuse Sefer Halilovic of failing to

14 prevent the crimes at Grabovica, it's important in the Prosecution case to

15 say that he was at the village of Grabovica on the afternoon of the 8th of

16 September.

17 I'll just interpose something there. Even that part of their case

18 is new. It's a new part of their case and it's changed since the

19 indictment. But I'm going to take you to the indictment.

20 At the moment I wish to illustrate the standard of proof and

21 burden of proof issue. Now, the Prosecution say that Mr. Halilovic was

22 there on that afternoon and as a result of being there he was in a

23 position to overhear a bizarre comment by the inspection team member

24 Vehbija Karic. And according to one view of Prosecution evidence, to

25 observe the response or the discussions that were going on at that time.

1 Now, the Defence, of course, contest that Karic ever said any such thing

2 and that's another dispute for another time, but at the moment we are

3 dealing with the question, was Halilovic there? And in that regard, the

4 Prosecutor called evidence from two witnesses, Witness D, of course, and

5 another witness, named Muhanic [phoen] and their stories were quite

6 different from each other. And you'll recall that one said that there was

7 a lineup under a balcony where a lonesome Croatian person was standing and

8 that when Karic said what he said, it was unlikely that Halilovic was in a

9 position to hear that.

10 But Witness D said something different. He said it was outside

11 another house and that the comment was made and that Halilovic heard it.

12 Was Sefer Halilovic there? Well, against that proposition you have the

13 evidence of other witnesses, and in the closing speech we are going to go

14 through all of them, of course, but now I'll just point to Namik

15 Dzankovic. So, Namik Dzankovic was a witness called by the Prosecutor,

16 unchallenged, no attempt made by the Prosecution to impeach him, you would

17 think a sensible, viable witness, no particular purpose to serve in saying

18 that Halilovic wasn't there, and he said Sefer Halilovic wasn't there.

19 So did the Prosecution prove beyond reasonable doubt that

20 Halilovic was there? The Defence would say no. I'd say when you have a

21 dispute between witnesses of course you as professional judges can assess

22 those witnesses. But in the absence of a compelling reason to accept

23 Witness D, you would not find that fact to be proved. And Witness D was

24 not a compelling witness. He was a blinding disaster. Witness D changed

25 his story, had a purpose to serve, is an associate of Ramiz Delalic and,

1 in my submission, would not be believed even if he was not contradicted by

2 other witnesses. In other words if he stood alone, he would still not get

3 you beyond that standard because he is so unreliable. But of course, he

4 is contradicted. There is an example of a key fact to which that standard

5 of proof must be applied.

6 The next general point we want to make is this. We ask the

7 Tribunal to recall the importance of certainty and stability in the law.

8 We suspect that the Prosecution will argue for some novel interpretations

9 and extensions of international humanitarian law and we expect that it

10 will be said that a failure to do that might result in gaps or unfortunate

11 lacunae in the protections offered to civilians. While this is a mature

12 body of law now and this Tribunal is a mature body, you are -- you may

13 apply the law and we ask you to be cautious, conservative, and mainstream.

14 We do not ask for exceptions to be created out of the law to protect Sefer

15 Halilovic. And the Defence intends to put in its legal submissions at the

16 end of the case what we hope is a very mainstream case in terms of the law

17 and how it applies.

18 Nor do we think that the Halilovic case would create any

19 precedents if mainstream law were applied, because the circumstances of

20 this case are really very unusual. And the situation that Mr. Halilovic

21 was in of attempting to bring order to an army and himself being the --

22 one of the guiding spirits behind the rules of procedure for the military

23 security service, the military body which had the competence to look into

24 these affairs once they happened, it will be our submission at the end

25 that you will be able to accommodate fully an acquittal and a comfortable

1 acquittal for Sefer Halilovic without in any way diminishing the

2 protection that international law offers to victims. And without

3 diminishing the effectiveness of this Tribunal in the work it does in the

4 broader community.

5 And what we ask fundamentally and as an application of that is

6 that the Court sticks to the indictment, that you stay with the

7 Prosecution's indictment. Above all, we ask that the Court hold the

8 Prosecutor to what they pleaded in this indictment. Now, the Defence

9 means no personal attack on the Prosecution, and although there have been

10 some warm moments in the Tribunal and in this particular courtroom, what

11 we say is a comment about the Prosecution as a body, and not aimed at

12 individuals in the least.

13 The Defence admires the Prosecution's approach and their tenacity

14 and the ingenuity with which they have sought to find a way to convict

15 Mr. Halilovic and to reconstruct out of the ashes of the original case

16 something new. But it can't be allowed. You can admire the intellectual

17 effort but you can't have the rule of law and that sort of change. We are

18 going to go through the indictment and we are going to look to see what

19 they sought to prove and whether they did, and the reason we do that now

20 is because that was the Defence case. It happened during the Prosecution

21 case.

22 Before I commence on that I wanted to say this. The evidence that

23 the Defence is proposing to lead here is narrow and focused. It chiefly

24 relates to the investigation of the Uzdol killings. There will be some

25 evidence relevant to the mode of investigation that is open to military

1 security services in Bosnia, and in that regard the witness who the

2 Prosecution renounced calling Bahrudin Comor is going to be called to give

3 some evidence about that, if not six weeks ago, then now in court.

4 Otherwise, the focus chiefly is on the issue of Uzdol because

5 there are gaps. The Prosecution conducted a case there that was minimal

6 and too minimal, and the Defence has decided to meet certain of the gaps

7 in relation to that. But with regard to the failure to prevent the crime

8 at Grabovica, there is little or no evidence that's going to be called

9 about that. We will rely on the evidence that has been led, and likewise

10 there is little evidence, though some, to be led in respect to the failure

11 to punish, the Prosecution alleges.

12 Your Honours, I turn now to the crime of murder that Sefer

13 Halilovic is charged with. There are three bases of liability as the

14 Court knows. One is to failing to prevent the crime at Grabovica. The

15 second is failing to punish the crime at Grabovica, the third is failing

16 to punish a different set of killings at Uzdol. Each path independently

17 leads to conviction of the crime of murder and therefore the Prosecution

18 says that it's appropriate to proceed with all three under the one

19 indictment. It is not the time to put an argument about that. The time

20 period for challenging the indictment passed without it being challenged

21 for reasons which do not need to concern the Court now. It is apparent

22 and must have been apparent as the trial unfolded that there were

23 difficulties with charging three such incidents. Or three such episodes

24 of criminality under one indictment. But, however, it is not the time now

25 to deal with that and we are not going to.

1 So I want to deal first of all with the crime that's alleged of

2 murder by means of failing to prevent a crime at Grabovica. Now,

3 Your Honours, if you like, the big intuitive picture much that which is

4 not meant to be a pleading but is meant to be simply a description of what

5 happened there from the Defence point of view is quite plain. The Defence

6 says that Sefer Halilovic is not guilty of that crime. He did not fail

7 culpably to prevent the killings at Grabovica. The Defence says the

8 Prosecution did not establish - did not establish - that Sefer Halilovic

9 was in effective control of the killers. A preliminary comment is the

10 Prosecution did not prove who the killers were in the main but identified

11 two such people.

12 But however, that's particulars which we will come to a bit later

13 on. Secondly the Prosecution said -- sorry, the Defence says that the

14 Prosecution did not prove that Sefer Halilovic had the relevant kind of

15 notice pursuant to Article 7(3). Your Honours, the Prosecution in the

16 indictment clearly and unambiguously pleaded a case of actual notice.

17 They did not prove that case. It's evident from the evidence that the

18 Prosecution led that they wish to proceed to attempt to prove a case of

19 constructive notice against Sefer Halilovic. We say they shouldn't be

20 permitted to do that but if they are, they did not succeed in proving it,

21 nor did they come close to proving it. And it's for that reason that I

22 mentioned at the start of this opening address that it's important to bear

23 in mind Sefer Halilovic's character as shown in the evidence. He stood

24 for a multi-ethnic army and a multi-ethnic Bosnia. There was an attempt

25 made in the opening speech of the Prosecutor to suggest that he was an

1 angry or bitter man. That's not pleaded. But that suggestion was made,

2 but it has to be borne steadily in mind that whether you take the

3 idealistic view of Sefer Halilovic as someone who favoured a multi-ethnic

4 army and community, or whether you take the view that he was self-serving

5 even to a small degree, the fact is no one suggested he departed from that

6 position. If he was seeking power in the unspecified way the Prosecution

7 has hinted, his position was that he disputed with Izetbegovic the

8 direction that was being taken and he always appeared to stand for that

9 multiethnic character of the army and of the community and therefore,

10 these crimes were absolutely against his interest, whether you view him as

11 good or self-serving, these crimes did not serve his interest. In fact

12 they were radically damaging to it and must have been seen in that light

13 at all times.

14 So the Defence says that generally speaking what the evidence

15 discloses, and this is a global view of the evidence, is that Sefer

16 Halilovic was a person who after his removal as the head of the army was

17 unlikely to be given any command or authority. He was under surveillance

18 measures, his phone was being tapped. When he went down to Herzegovina,

19 it was pursuant to an order which you have in evidence, the order of the

20 30th of the 8th, which on its face does not give him command of any

21 particular units for any particular operation, but gives in point 3 of the

22 order a very limited power. The Defence says the evidence showed that

23 Halilovic as Chief of Staff had no independent place in the chain of

24 command, but that he was empowered to give certain orders if authorised to

25 by his commander, as chiefs of staff are. The Defence says it was never

1 proved that he was the commander of an operation, that there was no de

2 jure case established, no appointment of Halilovic, no operations group.

3 The Defence says that the Prosecution did not prove that Sefer Halilovic,

4 whether commander or not, had effective control over the troops or others

5 who committed the atrocities, those which can be proved, at Grabovica.

6 The Defence says in that regard that it was never proved that Sefer

7 Halilovic had de facto authority or control over those troops at the

8 relevant time. It must be proved that Sefer Halilovic had effective

9 control and such control has to be clearly distinguished from influence.

10 The Prosecution mounted an unpleaded case during evidence of influence,

11 but influence does not equate to effective control. The Defence takes

12 issue that the Prosecution proved influence to any significant degree, but

13 to the extent that such evidence was led, it did not establish effective

14 control.

15 You might take the view of the evidence there that those troops at

16 Grabovica, the ones who did the killing, were thoroughly out of control,

17 that the command arrangements were non-existent, and that the Prosecution

18 simply did not prove how the chain of command operated, what the role of

19 company commanders were, the role of Zulfikar Alispago, the role of Ramiz

20 Delalic or any other real or imaginary commanders interposed in between,

21 including Senad Pecar, Zuti, Malco Rovcanin, or other candidates designed

22 to shield Ramiz Delalic from indictment.

23 Now the Defence said that the evidence disclosed that the troops

24 were billeted at the village pursuant to a decision that was not

25 criminally negligent but which had nothing to do with Sefer Halilovic.

1 The deposition evidence of Vehbija Karic made it quite clear how that was

2 done, and Karic had no purpose to serve of his own to take on his own

3 shoulders, as he did in that deposition, the decision. But the reason for

4 taking that decision emerged from the evidence with a number of facts that

5 were important ones. Most of the soldiers in the 9th Brigade were

6 considered to be decent people. The weight of the evidence was that there

7 were a few malefactors who committed misdemeanours or crimes of dishonesty

8 or who took people to dig trenches from time to time, but it did not

9 disclose that they were homicidal, it did not disclose that they were

10 racially prejudiced, it did not disclose that they were bigoted, it did

11 not disclose that they were thought to be any of those things. It did not

12 disclose that Sefer Halilovic thought they were any of those things.

13 And in fact the evidence about the choice of those troops was,

14 first of all, that Sefer Halilovic did not choose the individual troops,

15 and secondly that that choice as it happened was quite a reasonable

16 choice. You must not allow hindsight to pollute the picture that people

17 at the time making their decisions had. It cannot be permitted to say

18 that because some of these men may have and two of them did commit crimes,

19 that such a fact must have been obvious at the time. It wasn't obvious to

20 any of the players at the time. And the Prosecution did not prove that it

21 was obvious or should have been obvious to Mr. Halilovic, nor that he had

22 the relevant information in his hand at the time.

23 The Prosecution had to prove, as they undertook in the indictment,

24 that Sefer Halilovic actually knew there were killings going on. We say

25 the Prosecution did not prove that Sefer Halilovic went to Grabovica on

1 the 8th of September, that he heard the comment made by Vehbija Karic. We

2 say the Prosecutor didn't prove that such a comment was made by Vehbija

3 Karic. They called evidence that was unworthy of this Tribunal in their

4 attempt and we don't blame the Prosecutor for trying, this is a serious

5 matter and they are entitled to try but they failed. And they did not

6 prove that Sefer Halilovic was told of these crimes while they were going

7 on. And now we need to turn to the indictment itself.

8 Your Honours, I'm not sure if the -- if Your Honours have in court

9 copies of the indictment. (redacted)

10 (redacted)

11 (redacted)

12 MR. WEINER: Your Honour, I would move to strike that last

13 comment, please. It's uncalled for. Humorous but uncalled for,

14 Your Honour.

15 JUDGE LIU: I believe that the last comment is relevant in the

16 mainstream of the opening statement so it's -- suspect not.

17 MR. MORRISSEY: Your Honours, the Prosecution case, as pleaded,

18 asserted a number of facts. Would Your Honours open the indictment,

19 please, at paragraph 5. And I'll -- Your Honours, I'll take you through

20 the allegations that are made and how they were structured.

21 Your Honours will see that at paragraph 5 of the indictment, it

22 was said that Sefer Halilovic had visited Grabovica on at least two

23 occasions, and the Prosecution did prove that Halilovic went to Grabovica

24 on the left bank on the 1st of September and they did prove that he passed

25 through it in a car with Sefko Hodzic on or about the 3rd of September.

1 Paragraph 6, the Prosecution asserted that these units had notorious

2 reputations for being criminal and uncontrolled in behaviour.

3 Your Honours, that raises a real problem with the pleadings here. If you

4 go back to paragraph number 4, you'll see an averment that Sefer Halilovic

5 was the commander of the operation and as such the troops involved in the

6 Neretva 93 Operation were under his command and control.

7 THE INTERPRETER: Will counsel please slow down when reading.

8 Thank you.

9 MR. MORRISSEY: These include the 9th Motorised Brigade, the 10th

10 Mountain Brigade, the 2nd Independent Battalion and the Prozor Independent

11 Battalion. Now we have to point out that never was the 9th Motorised

12 Brigade or the 10th Mountain Brigade said by any witness to be under the

13 command of Sefer Halilovic. The order of the 2nd of September 1993, the

14 number of which is Exhibit 161, made quite clear that troops from those

15 units -- sorry, that the commander of the 1st Corps Vahid Karavelic, was

16 to assemble a group of soldiers selected from a range of units specified

17 in that order, and never was the 9th Brigade subordinated, the 9th

18 Motorised Brigade subordinated to any operation at all.

19 The reason I raise that in this context is that the Prosecution

20 persistently failed to distinguish between the 9th Brigade as a body and

21 the troops who were selected to go to Herzegovina. There was no evidence

22 that the troops who went to Herzegovina had a bad reputation or a criminal

23 past. There was never a suggestion that these troops were bad or had

24 committed any offences. Of course, the Defence says that even the worst

25 gossip and third-hand information which was tendered by the Prosecutors

1 only ever established that some people in the 9th Brigade committed some

2 misdemeanours and took people to dig trenches. And never did they

3 establish that there was a homicidal or racially prejudiced tendency in

4 that unit. But they simply didn't come to grips with the issue of the

5 troops themselves who went, who left. And now, Your Honours, it's too

6 late.

7 Your Honours, at paragraph 8, the Prosecution averred that a unit

8 of the 9th Motorised Brigade which was under the command of the deputy

9 Brigade commander Ramiz Delalic left Sarajevo on the 7th of September.

10 The date is not in dispute but the Prosecution did not prove that unit was

11 under the command of Ramiz Delalic. Indeed in one of the most astounding

12 performances that you can imagine they called Ramiz Delalic to say the

13 contrary. They called him here declining to say in advance which parts of

14 his evidence were truthful and which weren't and led that evidence from

15 him.

16 So to press on, Your Honours, at paragraph 10, the Prosecution put

17 some allegations. We say, and I've already said this, that they did not

18 prove the contends of this paragraph. They did not prove the comment by

19 Karic, they did not prove the presence of Halilovic. But what's very

20 important is that in the indictment, as it stands now, and up to paragraph

21 10, there is no allegation at that point of any criminal failure by

22 Halilovic. That allegation arises only when you get to paragraph 15. And

23 there, in paragraph 15, the Prosecution's case is to be found, that

24 Halilovic was notified, that's actual notice, he was notified during the

25 night of the 8th of September 1993 about the killing of civilians. Once

1 he was notified and having knowledge of the criminal reputation of the 9th

2 Motorised and 10th Mountain Brigades and having been present earlier in

3 the day when Vehbija Karic made the remark referred to in paragraph 10

4 above, Sefer Halilovic was duty bound to act urgently and it's at that

5 point that the Prosecution pleaded the duty that arose.

6 We'll go on in a minute to see what steps he should have taken but

7 it was central to the Prosecution case that Halilovic was in fact

8 notified. That's what they say. They must be held to it.

9 Your Honours, that case that Halilovic was notified during the

10 night of the 8th of September 1993 collapsed in the running here and it's

11 to be seen in the future whether the Prosecution persists with it. But

12 Your Honours may have benefited from a proofing chart that the Prosecution

13 provided. The Prosecution pursuant to a request by the Court and quite

14 properly provided a guide entitled proofing chart to what evidence they

15 led to prove parts of the indictment. And with respect to the question of

16 whether Sefer Halilovic heard about the crimes while they were happening,

17 the sole piece of evidence pointed to is a passage from the statement of

18 Halilovic to the OTP dated the 6th of May 1996, a document which has yet

19 to be admitted into the evidence. But which in any event says no more

20 than this, that Halilovic said he wanted to go there but was advised by

21 Namik Dzankovic that there was still shooting in the sector. And that's

22 the Prosecution quote. "Still shooting in the sector." And that is said

23 to constitute evidence of knowledge of the crimes while they were being

24 committed. And that's all.

25 Now, that evidence could not even if it was admitted from the bar

1 table, and in the form it currently is, could not constitute proof that

2 the crimes were ongoing at that point. Dzankovic doesn't say that in his

3 evidence, and his evidence was unchallenged here by Prosecution or

4 Defence. The terms of the phrase attributed to Halilovic there, if you

5 admit this into evidence, which you have not done at this point, say no

6 more than that there was the sound of shooting in the area. Your Honours

7 have heard overwhelming evidence that from an early time when these troops

8 arrived, there was shooting, some of it festive and fun-loving, some of it

9 no doubt lethal and terrifying. But this evidence does not prove that one

10 person pleaded as a murdered victim on the indictment, was alive at that

11 moment.

12 The case of actual notice in my submission is finished. The

13 Prosecution went on to say that it was upon the receipt of that notice

14 that Halilovic was duty bound to act urgently. He had duties and the

15 Prosecution then sets them out to take steps, to eliminate a further

16 threat and danger to surviving civilians, by evacuating them or ensuring

17 they were properly protected. Then the Prosecution goes on to list how

18 that could be done. It says, to accomplish this Sefer Halilovic should

19 have given orders, done the things that are set out. All of those

20 measures pleaded arise and are pleaded to arise once he knows, once he

21 knew. They had to prove that he knew.

22 So, Your Honours, that's why we say we think there is another case

23 coming.

24 Now, the Prosecution later in its second pre-trial brief sought to

25 suggest that there were duties that arose the previous afternoon, the

1 afternoon of the 8th. And in that pre-trial brief, you can see that it

2 was said that Halilovic had duties once he heard the comment of Karic.

3 Your Honours, we say that's outside of the indictment as it's pleaded.

4 The indictment was a notice indictment, an actual notice indictment. But

5 there are all sorts of problems with the alternative case that the

6 Prosecution might seek to advance. We say of course that the chief

7 Defence to all of this is to say well that incident on the 8th of

8 September did not happen and in any event Halilovic was not there in the

9 village. But the Prosecutor did not prove that that comment was to be

10 taken seriously or was taken seriously and indeed all of those details are

11 missing because the evidence came only from one person, Witness D.

12 Now, we say therefore as a matter of form and as a matter of

13 substance that the Prosecution's alternative approach to that crime ought

14 to be rejected. They shouldn't go outside the indictment. But equally

15 they shouldn't -- if they were permitted to rely upon that evidence we say

16 it is not proved. And if the Prosecution are deprived of the actual

17 notice on the night of the 8th, if they are deprived of the presence of

18 Halilovic at Grabovica and his witnessing the comment by Karic, then all

19 that remains is the choice of the troops, and that was never pleaded as a

20 basis of liability for this crime, and nor could it be on its own a basis

21 for liability for this crime, bearing in mind what you know. The Defence

22 does not concede that the selection of troops could ever on its own in any

23 circumstances constitute enough, but you don't have to decide that point

24 and the battle won't be fought on that point, because it's comfortable to

25 decide that issue on the facts of this case to say that these troops, the

1 ones selected in the presence of Vahid Karavelic to go to Herzegovina were

2 not known to be bad, were not thought to be bad, were not considered

3 appropriate -- inappropriate, I'm sorry, and shouldn't have been seen in

4 that light. And indeed the failure of the Prosecution to prove any

5 details of the crime scene at all with the exception of the -- what the

6 dense says is dishonest evidence by Witness D and Muhanic and honest but

7 partial evidence of -- sorry, just excuse me. Sorry, the partial but we

8 say honest and accurate evidence of Mr. Sakrak. The Prosecution did not

9 show who the killers were. They did not show that most of these people

10 were murdered, and they just provided a real paucity of material

11 concerning that.

12 So the Defence said that the Prosecution did not prove their case

13 in respect of that crime.

14 When you look to the pre-trial brief by which I mean the second

15 pre-trial brief the amended one which replaced the first, it will be

16 apparent that at paragraphs 95, 97 and 98, the Prosecution seek to place

17 more emphasis on the Grabovica incident but applying the proper standard

18 of proof to that, we say it's finished. It's almost unimaginable, and we

19 ask you to consider this, that Sefer Halilovic would stand by and let it

20 happen, knowing what you know about him. It was completely in his

21 interest to stop it. He had to stop it. The Defence did not prove that

22 this ruined his life, but we don't have to. It's obvious that this event,

23 and both events, were utter disasters for him.

24 You can gain -- sorry, I withdraw that.

25 Very well. I turn now to the next mode of guilt that is alleged

1 against Sefer Halilovic, and that is the failure to punish the crime at

2 Grabovica. Now, Your Honours -- pardon me a moment, please.

3 We want to point out that in dealing with this crime, you are

4 dealing with a crime which generally speaking would be seen as a lesser

5 level of magnitude than the failure to prevent. The moral culpability of

6 a failure to prevent would generally, though not as a mathematical

7 question, be worse than a failure to punish afterwards. But in the case

8 of Halilovic now, and in the case of Grabovica, the Prosecution, leaving

9 aside the allegations raised by Ramiz Delalic in this Court, the

10 Prosecution case is one that he was imperfect. I'll come to the details

11 of that in a minute but I just want to read something from the High

12 Command case.

13 "Modern war such as the last war entails a large measure of

14 decentralisation. A high commander cannot keep completely informed of the

15 details of military operations of subordinates and most assuredly not of

16 every administrative measure. He has the right to assume that details

17 entrusted to responsible subordinates will be legally executed. The

18 president of the United States is commander of its m military forces.

19 Criminal acts committed by those forces cannot themselves be charged to

20 him on the theory of subordination. The same is true of other high

21 commanders in the chain of command. Criminality does not attach to every

22 individual in this chain of command from that fact alone. There must be

23 personal dereliction."

24 Now the gravity of that dereliction can be measured by the

25 consequences for Sefer Halilovic. According to the law, it makes a

1 murderer of him. So the question then becomes: Did the Prosecution prove

2 such a dereliction on behalf of Sefer Halilovic?

3 The big picture again -- perhaps what I'll do is present the big

4 picture view from the Defence perspective and then say something about the

5 specifics that could have been -- that you would expect. The big picture

6 here is that Sefer Halilovic found out about this crime on the 9th of

7 September. If you find that the troops were under his effective control,

8 if you find that, and we say that you shouldn't, then on any view, that

9 ceased on the 19th of September when they went back to Sarajevo. The

10 relevant period in which to assess Halilovic's culpability for this crime

11 is between the 9th and the 19th of September. That's how it's pleaded in

12 the indictment and that's how common sense and how the evidence says it

13 should have been dealt with, too.

14 Because if troops were the 9th Brigade were sent back to

15 Herzegovina at a later time, nobody says they were the same troops and

16 there is no suggestion to that effect. So you are looking at a ten-day

17 period. You are not looking at a person who closed his eyes to repeated

18 abuses. You are not dealing with someone who allowed a reign of terror to

19 unfold. You're dealing with one incident concerning troops who were, even

20 if the Prosecution proves its case of effective control, who ceased to be

21 in effective control after that time.

22 Now, what the Defence says in the big picture of this case is that

23 Sefer Halilovic launched an investigation, and he did so through the

24 appropriate organ. He launched an investigation and he chose the right

25 people to do the job. Now the right people to do the job were the SVB,

1 the military security service. One of whose reasons to exist is to

2 perform the work of the police in a military setting, as we shall

3 demonstrate by very simple analysis of the relevant rules which have been

4 tendered into evidence here for that exact purpose and which you, as

5 professional judges, will easily comprehend. By taking the step that he

6 did, Sefer Halilovic started the ball rolling, started the investigation,

7 and took the investigation out of his control, and you know that because

8 the SVB had its own separate structure, its own line of reporting, its own

9 obligations.

10 The evidence discloses that the SVB, the military security

11 service, did investigate the crime and that they kept investigating the

12 crime after Sefer Halilovic's connection with these troops. Whatever you

13 find that to be, was severed on the 19th of September. We say the

14 Prosecution here found themselves in a difficult position because, as will

15 become apparent in a moment, they pleaded the wrong rules. And as was

16 frankly conceded by the Prosecutor, they just don't know what the rules

17 were that Sefer Halilovic should have followed. They don't know what the

18 law is, they don't know it now, they didn't know it then. How can

19 Halilovic be expected to know it?

20 We don't criticise the Prosecutor. The fact is they looked. They

21 found nothing. You cannot assume that the Prosecutor simply dropped the

22 ball. They didn't plead it because they can't.

23 Now, Your Honours, we say the SVB were the appropriate authority

24 to do the job. First of all, Sefer Halilovic was a senior military

25 officer in the field. He had a job, and every one agrees that he had the

1 job of coordinating combat activities in that area on a very wide front.

2 The Prosecution of course go further and say that he wasn't merely

3 coordinating but that he was effectively commanding and indeed they plead

4 that he was the de jure commander as well. But whether he was the

5 commander or not or merely a coordinator, there was a war on. There was

6 active combat activity starting on the 13th of September and occurring

7 every single day of the 10 days that Sefer Halilovic had thereafter. I'll

8 show you why you can be sure of that in a moment.

9 But the SVB were able to investigate. The SVB can coordinate

10 across areas. They are not regionalised. Although the SVB officers are

11 attached to their local brigade, the SVB through its line of -- its own

12 professional line of reporting, can simultaneously investigate in more

13 than one place. It was quite appropriate and it was inevitable that Sefer

14 Halilovic would have to delegate this task to someone. He had to. He's

15 not a policeman. Senior military officer is entitled to delegate and

16 that's what he did. Did he delegate correctly? We say yes. When you

17 look at what happened, Namik Dzankovic was properly tasked by Sefer

18 Halilovic to investigate. Dzankovic did launch an investigation.

19 Dzankovic, when he was launched into this investigation, the whole SVB was

20 launched with him because he reports to them separately. And so it is

21 that you find other SVB directors and commanders in the area taking an

22 interest and contributing to the investigation, so Nermin Eminovic

23 contributed to it, joined it. Zajko Sahirlic joined it. At the end of

24 this case, we'll endeavour to put some sense into the string of orders.

25 It's just not feasible to do it now in the time that we have. But it's

1 obvious that the SVB this, not just Namik Dzankovic but the institution,

2 joined in the investigation. And in the end, and not too far in the

3 future, six to seven weeks into the future perhaps. Five weeks perhaps

4 into the future, the Grabovica investigation became one of the bases for

5 questioning the men arrested during the Trebevic Operation on 26th of

6 October.

7 Now, the Prosecutors in effective and well measured opening in

8 this case said that all Mr. Halilovic did was to commission a report. But

9 that was an inaccurate statement and was not proved by the evidence. He

10 started an investigation, the investigation happened.

11 Now, not only did he start the investigation, but his superiors

12 were notified. The last witness to give evidence was Bakir Alispahic and

13 he said that when he got back to Sarajevo, Rasim Delic, the commander of

14 the army, knew about it. Alispahic himself approached the president,

15 Alija Izetbegovic, as he had to do, as he was bound to do, as everyone

16 knew he must do. Jusuf Jasarevic, the chief of the military security

17 service, knew about it. Now, we say that Namik Dzankovic acted sensibly.

18 Exhibit P214 was a document that is a report of Namik Dzankovic

19 and it was dated the 13th of September. And in that document, Namik

20 Dzankovic proposed certain measures. It's on the final page of that

21 document. It's okay, Your Honours. I don't have my copy in front of me

22 now about I don't need it. I have to say I'm able to -- but Your Honours

23 will find it on the last page of the English section. And Your Honours,

24 there, Mr. Dzankovic made proposals that were thorough, sensible, and

25 professional. We say it was an appropriate and measured response to the

1 real situation in which he found himself.

2 Your Honours, I'm told I gave the wrong number. I apologise for

3 that. It's 215. Your Honours, I -- it can be brought up on the screen

4 but I don't mean Your Honours to have to read it for the 15th time here.

5 I'll simply point to the measures that Dzankovic suggested should happen.

6 He noted that Halilovic had distanced himself from it, from the crime, and

7 he noticed that Halilovic ordered him personally to work together with

8 other military security service member and MUP officials - I'll come to

9 the MUP officials in a minute - to collect as much information as possible

10 about the infamous event. "Pursuant to the above I propose the

11 following," and then he listed all of the things that could be done

12 including crime scene investigations, including the getting of doctors,

13 experts, and, generally speaking, what you see from Namik Dzankovic there

14 is a sensible response.

15 There was some queries leveled at Namik Dzankovic's level of

16 professionalism, not, I hasten to say, while he was here, Your Honours.

17 But the fact remains that the criticisms leveled at Dzankovic might be

18 seen as self-serving criticisms but in any event, do not impact on Sefer

19 Halilovic. We say you'd find that Dzankovic, whatever he lacked in

20 experience, did the best he could in a difficult situation, but if you

21 make a finding that he made some mistakes, we don't agree that he did, but

22 if you make that finding, no one suggests that Halilovic knew or should

23 have known that he did. Sefer Halilovic didn't choose this man, didn't

24 know him. He was chosen by Jusuf Jasarevic because he was on the terrain

25 already. He was not presented to Sefer Halilovic as a lame duck. And we

1 say Sefer Halilovic was entitled to rely upon the competence and good

2 faith of Namik Dzankovic. And we go further and say that that was

3 entirely justified and Dzankovic did what could be done in the situation

4 that existed at that time.

5 Now, to proceed with that, with that argument a little bit

6 further, you have to see Halilovic's actions in the context of the time.

7 He was coordinating, and as I say the Prosecution go further even and say

8 that he had the more onerous task of commanding, a ragtag army in the

9 process of being brought under the line of command and control which had

10 unprofessional officers doing the best they could and soldiers who were

11 doing the best they could in a very difficult situation. He was short of

12 weapons, communication equipment, petrol, and in short he had a very

13 trying and busy job to do at that time. He had to delegate, and the job

14 that he was doing is not one that he could lightly put aside. The

15 evidence as to the situation in Mostar is overwhelmingly bad. The

16 situation in Mostar was a humanitarian disaster. You would be entitled to

17 act on that without any thought -- well, not without any thought. With

18 thought, but without any hesitation.

19 So then we come to the issue of the Prosecution's suggestion as to

20 how Halilovic should have responded. In the indictment, at paragraph 36,

21 you will see that the Prosecutor averred the ABiH disciplinary

22 regulations, in particular those gazetted on the 13th of August 1992, as

23 amended to implement the rules relating to the investigation of war crimes

24 also bound him.

25 Now, Your Honour, my learned friend tendered the disciplinary

1 rules in the course of his case. It was Exhibit 103. And relying on that

2 document represented a fundamental misunderstanding of what options there

3 were open to a commander. You don't use these disciplinary rules to

4 investigate major crimes. These rules concerned disciplinary infractions

5 and, as Article 1 says, "these rules shall regulate military discipline,

6 disciplinary measures and disciplinary punishment for breeches of military

7 discipline." The punishment set out there in -- are relatively minor

8 ones. It's not the appropriate body of law to apply. The Prosecution,

9 when it turned to deal with this matter in the proofing chart provided to

10 the Court -- will Your Honours just excuse me, it's a lengthy document.

11 Referred to a number of the other documents that were tendered. But the

12 military discipline rules did not form a part of what should have been

13 Halilovic's resources.

14 Creates a very interesting question, one which we don't have to

15 resolve for this Tribunal as to what contribution domestic law can make

16 but Halilovic dealt with an army which initially had no way of

17 investigating crimes and the rule on the SVB was brought in, the rule on

18 the military security service was brought in to adapt the Yugoslavian

19 national army, the JNA's approach to dealing with that problem. Now,

20 these documents -- sorry, this source of rules created the SVB and we'll

21 go to some of the provisions of that in a minute. However, it's important

22 that it be realised why it was that Halilovic was entitled to delegate,

23 because he's not a professional, because he created a professional body

24 that had exactly that competence. In looking at the SVB and its rules

25 what you should look at is that those rules enable, they enable

1 investigations to take place. This is not a question of a commander

2 hiding behind a body of law and saying that he meritlessly complied with

3 some of the steps. It's not that case. Instead, Halilovic brought into

4 being - of course, with the Presidency, he's not a legislator of his own -

5 the rules on the SVB -- just excuse me one moment, please.

6 So D -- sorry, not D; exhibit 137 is the rules for the military

7 security service in the armed forces of the Republic of

8 Bosnia-Herzegovina. And in the past ages which have been read out before

9 in this court, the competence of this organisation is spelled out. And

10 that's at section 39, 40, and 41. At 39, under the heading "The Military

11 Security Service in Criminal Proceedings," that "the rules provide that

12 the work and powers of the internal affairs organs, as laid down by the

13 ZKP relate also to the conduct of an action taken by authorised officers

14 of the military security service, in pre-trial and criminal proceedings" -

15 the distinction there is not without significance - "within the frame of

16 their competence."

17 Now, you will remember there that some of the terms were explained

18 in court, ZKP refers to the Criminal Code, the civil code that was in

19 place, and the pre-trial and criminal proceedings, one referred --

20 pre-trial refers to what we might call the investigative phase, sometimes

21 in this court it was called the pre-criminal phase but the time before a

22 criminal denunciation is laid with the military Prosecutor, and criminal

23 proceedings which is from the commencement of proceedings themselves.

24 There is an extended version of what a trial is. It's different to the

25 common law system and different from some civil systems as well. So what

1 that provides, that section, is that the military security service has the

2 powers that the MUP civilian police have in their area of competence when

3 dealing with offences that are within the competence of the SVB.

4 So paragraph 40 then goes on to provide some specifics. When

5 there is reasonable suspicion that a criminal offence triable by military

6 courts has been committed officers of the military security service must

7 take the necessary measures. I just note the imperative phraseology, must

8 take the necessary measures to find the perpetrator of the criminal

9 offence, to prevent the perpetrator or his accomplice going into hiding or

10 escaping, to uncover, protect the evidence and exhibits which can serve as

11 evidence. Together, all the information useful for successful conduct of

12 the criminal proceedings.

13 And then, once that's done at paragraph 41, on the basis of the

14 information gathered, officers of the military security service in the

15 command of the brigade or corresponding or a higher ranking officers in

16 the military security service shall submit a criminal report to the

17 competent military Prosecutor's office.

18 Now, the SVB were fully competent to perform the investigative

19 task. You will see that they have various rights. One right that may be

20 worth noticing is at paragraph 7(E) where it is made clear that within the

21 range - this is at page 6 of the B/C/S copy, Your Honours - "within the

22 range of military police assignments, the military security service shall

23 perform the following tasks," and then down at point E, professionally

24 direct the work of the authorised members of military police in pre-trial

25 proceedings.

1 It was quite right of Sefer Halilovic to delegate the

2 investigation to the SVB. Now, can Sefer Halilovic's choices at that time

3 be criticised at all? The Defence says no. The Defence says he made the

4 right choice. In the context he had, he had a military operation to

5 conduct. The failure to conduct that military operation had serious human

6 rights implications for the people living in Mostar. There were all sorts

7 of reasons why he had to go on with that operation. On the Prosecution's

8 own case, he had an order to command that operation. And never was he

9 told to stop it.

10 The Prosecution have to do more than to point out imperfections.

11 It's not open now for them to plead different imperfections. But should

12 the Prosecution seek to design some councils of perfection for

13 Mr. Halilovic they are doomed to fail because, and I'm not going to

14 speculate as to what they might be. But it was not appropriate to stop

15 the action. It was not appropriate to barge into Grabovica and start a

16 war. Your Honours have heard already precisely what the situation was

17 when arrests had been attempted with members of the 9th Brigade, 10th

18 Brigade in the past.

19 And there is another thing. In this case, the investigation was

20 clearly and openly obstructed by the Prosecution witness Ramiz Delalic.

21 He said it wasn't. He said that Sefer Halilovic just fresh from planning

22 the murder of his own commander, proposed and executed a cover-up of this

23 crime. But the evidence from independent witnesses was crushing on that

24 score. As early as 3.00 in the afternoon on the 9th of September, Ramiz

25 Delalic expressed hostility to the investigation and indifference to the

1 plight of the Croats on the bridge when he was met by one of the two

2 individuals, Salihamidzic and Kurt who went to the village. The following

3 evening on the 10th, in front of several witnesses, none of whom were

4 challenged in this Court, and whose evidence ought to be simply accepted

5 without any difficulty, he showed again an indifference to the crimes, a

6 hostility to the police, and an intention to leave the zone of combat.

7 Now, this is a man who the Prosecution wish to say was under the control

8 and command of Sefer Halilovic and whose units they say were under his

9 command and control. And Your Honours might pause to reflect on that if

10 you need to be subtle about it. But I don't think there is any need for

11 subtlety here; it's quite clear Delalic blocked the investigation.

12 The Defence does not say that you ought to find Ramiz Delalic

13 killed people. We don't say that. You might find that he was upset to

14 hear of the crimes, and you might not. There is evidence of a competing

15 nature with respect to his response. Because on the one hand, it may be

16 accepted that he demonstrated anger in hearing about the crime. On the

17 other hand, it's quite clear that he kept the children overnight in the

18 village from the 9th until the 10th. That's just clearly proved and not

19 explained by him, and of course it's inconsistent with his very spiteful

20 allegations made about Halilovic wanting to have those children put away.

21 It's inconsistent with that, but it's also rather significant about what

22 he was doing. You might take the view that those children were bargaining

23 chips in the hands of Ramiz Delalic.

24 But that riddle is a riddle only because you can't believe Ramiz,

25 and the children of course don't know what Delalic had in mind himself.

1 They can just say what he did. Of course, that was done honesty and

2 believably in this Court. However you read that riddle, in the end the

3 answer is simple: That Halilovic had a disaster on his hands with that

4 man, Ramiz Delalic. And it means that it just wasn't viable, even if

5 there were troops available, even if military victory was assurable, even

6 if there were no other matters to deal with, it wasn't viable to just

7 barge in and arrest people. And it's always been in any event one of the

8 Prosecutor's, we say, gaps of -- of argument. It's not a lack of

9 intellect by any means, it's just a gap in their argument that there were

10 no suspects. You don't just barge into a village and arrest anyone. The

11 troops would be entitled to fight back in that circumstance. There were

12 no suspects identified. The Prosecution didn't point to any. Didn't

13 try.

14 That's the failure -- when the Prosecution point to that failure,

15 you have to bear that in mind, that Halilovic had many jobs to do. He was

16 on the terrain, he was backwards and forwards, and he was entitled to rely

17 upon those he delegated it to. We say that you wouldn't find fault with

18 that, but if the Prosecution do identify fault, then it's not something

19 that renders Halilovic a murderer. It's not such a gross dereliction that

20 you would trouble to convict him of murder.

21 Your Honours, could we take a break?

22 JUDGE LIU: Yes. I think it's time for us to take a break, and

23 we'll resume at ten minutes past 4.00.

24 --- Recess taken at 3.37 p.m.

25 --- On resuming at 4.12 p.m.

1 JUDGE LIU: Well, Mr. Morrissey, before you continue, do you have

2 any matters to raise?

3 MR. MORRISSEY: Your Honours, I do. The Court was kind enough to

4 allow us to have until today to prepare this opening and I -- I indicated

5 that I was relatively -- feeling relatively unwell last week. I'm -- I'm

6 getting better now. I would prefer not to start the next witness if that

7 suited the Court's convenience, otherwise we will complete the rest of the

8 witnesses that we have for this week, for another reason I'll indicate.

9 But I think I'll go long enough that we would only have maybe an hour to

10 40 minutes left for this witness tonight and frankly, I'm -- for myself, I

11 would seek the indulgence that we not start him until tomorrow. I think

12 we'll finish him tomorrow. I can't speak for the Prosecutor, but I

13 suspect we will. His evidence is pretty confined. There was a witness

14 scheduled here, I think we sent a note concerning this matter, but one of

15 the witnesses has been withdrawn. The witness -- so he won't be coming.

16 The witness that -- I'm just not naming names because I'm not sure whether

17 I'm going to make any applications in the future, but there was one

18 witness that I indicated that had a -- a health issue that's to be

19 resolved tomorrow afternoon. As we understand it, he's -- we hope he'll

20 be okay and he'll come and he's a witness that will probably take two

21 days. The other witness that I indicated I was giving consideration to or

22 giving consideration to and we are proposing not to call that witness. So

23 we now are reduced to two witnesses for this week. We will comfortably

24 finish those.

25 Your Honour, could I just indicate too that I'm aware of having --

1 that in some respects the Defence is -- seems to be going at an uneven

2 pace in terms of calling these -- the witnesses. We think the time we

3 take is shortening matters. We are going to call -- we have indicated a

4 confined case. It's very much on the cards that I will cut another

5 witness as well. I'll keep the Prosecution advised of that as soon as I

6 make a decision. That's -- but we are not going to go longer. We are

7 going to go shorter.

8 JUDGE LIU: Well, thank you very much. But don't forget the 92

9 bis witnesses, because the Prosecution is waiting for the statements of

10 those witnesses and they have to give us a reply on whether they want to

11 cross-examine those witnesses or not or whether they did not agree with

12 your proposal. And could I ask you how long do you think your direct

13 examination will take for the next witness?

14 MR. MORRISSEY: I thought about 90 minutes. It could go a tiny

15 bit more but it's as indicated in the notes. The only reason I think it

16 would go anything over one hour because I want to show him a couple of

17 documents, as indicated, and he's also drawn two diagrams which -- I think

18 they have been -- I hope they have been provided to the Prosecutor. They

19 are just his drawings actually, but the Defence wants to offer those just

20 to explain what the strategic situation was facing his unit which was

21 right next door to the Uzdol -- to the Prozor Independent Battalion so

22 that the Tribunal can see what was envisaged to be achieved and that may

23 assist, certainly will assist as background and it may assist in some

24 specific matters as well. There are two such diagrams that he's drawn but

25 the diagrams should shorten things so, yes, 90 minutes, I think, is what

1 I'm budgeting for, Your Honour.

2 [Trial Chamber confers]

3 JUDGE LIU: Well, is it possible for you to start the witness

4 today? And we may have an early break tomorrow when we finish that

5 witness.

6 MR. MORRISSEY: Your Honours, yes, it's entirely possible and

7 that's what we will do.

8 JUDGE LIU: So we'll continue with the next witness today, maybe

9 for an hour or 45 minutes and tomorrow morning we will continue and then

10 we'll break whenever we finish that witness. Is that agreeable.

11 MR. MORRISSEY: Yes, Your Honour, it is.

12 JUDGE LIU: How about the Prosecution?

13 MR. WEINER: That's fine with us, Your Honour.

14 JUDGE LIU: Thank you very much for your cooperation.

15 Well, let's continue your opening statement, Mr. Morrissey.

16 MR. MORRISSEY: Thank you, Your Honours.

17 Your Honours, I've really come to the end of the failure to what I

18 want to say in this -- these opening remarks about the failure to punish

19 at Grabovica and I would make this comment about -- about that failure to

20 punish. Without the evidence -- Ramiz Delalic gave evidence here and his

21 evidence was not really evidence of a failure to punish. It was evidence

22 of a criminal conspiracy by Sefer Halilovic and Zulfikar Alispago and what

23 was said by him was that those two planned to cover up the crime and as an

24 incident of that crime were proposing at one point at least to do away

25 with the two children, the two young boys. Now, for reasons that we will

1 go into later on, for reasons that we hope we submit are obvious, we ask

2 the Tribunal to reject that evidence as being self-serving evidence, that

3 we say that Ramiz Delalic had to tell the story of Halilovic covering up

4 because he covered up because he committed offences because he owed his

5 position to his men and he couldn't see his men investigated and whatever

6 his reasons may be, there are all sorts of possible reasons, and but

7 whatever they are, that's why he makes the allegation. He's got a good

8 motive to lie and it's to save his own skin.

9 If you set aside, as you should, the evidence of Ramiz Delalic,

10 then what you're left with really is a very reasonable, the Defence says,

11 conduct from Halilovic. It may be possible for the ingenuity of

12 Prosecutors after the event to device strategies. The witnesses did not

13 give any comfort in that regard.

14 And this Tribunal would not visit upon Mr. Halilovic a verdict of

15 guilt of murder because he didn't achieve perfection.

16 Now, before I turn to the failure to punish the killings at Uzdol,

17 I want to make a couple of general remarks partly because the inferences

18 to be drawn are -- because -- partly because we are coming to an inference

19 part of the case, a conclusions-from-other-conclusions part of the case.

20 I made some comments early on about the standard of proof that

21 must be met in terms of important facts and I said, and the Tribunal knows

22 better than I do, of course, that those important facts have to be proved

23 beyond reasonable doubt, each one. And in this case, there are a number

24 of inferences that the Prosecution seeks to have you draw, conclusions

25 based on other facts. They don't lead direct evidence but they seek to

1 rely upon inferences and, frankly, the Defence also points to inferences.

2 There is no fault from the Prosecution's position in doing that, and

3 indeed experience shows that a circumstantial case can be the -- the most

4 important of all. It doesn't rely on human frailty to the same degree.

5 So -- or test human frailty to the same degree. But when dealing with an

6 inferential case, when you are reasoning as Judges faced with a number of

7 facts and you're confronted with a request by the Prosecutor to draw a

8 further fact as an inference from those facts, then it's important amidst

9 the welter and the weight of many facts to bear in mind what you know but

10 you have to remind yourselves of it at all times, and that is to ensure

11 that inferences in a criminal case are proved to the criminal standard.

12 Important inferences have got to be proved beyond reasonable doubt.

13 Inferences which are facts proved by inference, which are important in the

14 Prosecution case have to be proved beyond reasonable doubt.

15 Now, in assessing inferences, you are always entitled to look at

16 all the facts and your experience as professional judges is -- is very

17 important and it means that you don't have to be given the warnings that

18 juries in the common law system are given, they have to be given lengthy

19 instructions about that reasoning process. You don't have to -- have to

20 be given those, but it's important to bear in mind a couple of, if you

21 like, extra factors when drawing inferences. First is that the

22 Prosecution have got to show that the inference they seek is the only

23 reasonable inference available on the evidence. And in that regard, the

24 Prosecution in this case have assumed a much heavier burden than usual,

25 and you know that because you know that this Prosecution is particularly

1 adversarial, that they have been prepared to deny you evidence which they

2 were going to rely upon and which they mean to call until it proved

3 inconvenient.

4 You saw, for example, the tendering of a document signed by an

5 individual named Mujezinovic. That was a document commenting upon Sefer

6 Halilovic's media exploits. Well, they wanted to rely on that document

7 but they were drew from Mr. Mujezinovic. That has a direct affect on the

8 weight you could give that document, of course, and you don't need to have

9 that explained now. But it does rather reveal this Prosecutor's strategy.

10 When Bahrudin Comor came along and gave the wrong answers, they were drew

11 him.

12 Now, Your Honours, this system is adversarial. The Prosecutors

13 are not here to do favours for the Defence nor should they be. But in the

14 civil systems, Prosecutors have a higher duty and are trusted, and here at

15 the Tribunal, when the Prosecutor takes the adversarial position which

16 they took, then when you assess whether an inference ought to be drawn

17 from a selection of facts put forward by the Prosecutor, you have to think

18 to yourself, well, I'm not being dealt a fair deck of cards here. I'm not

19 being given a full picture by the Prosecutor. Now, the Prosecutors and

20 the Defence are in an absolutely different position. The Prosecutor has

21 to meet the burden of proof and they have to prove it to a high standard.

22 The Defence's job is to point to doubts about that. The Defence does not

23 have a burden to prove innocence, nor can it. It's a function of the

24 adversarial system. It's a function of the standard of proof that we --

25 that the Prosecution has to meet, and one pragmatic thing that might lie

1 behind it is just the resources. The Defence just can't go proving

2 innocence in the face of the might of the Prosecution.

3 We don't complain. The Prosecution should have huge resources

4 because they've got a huge job to do across the country. But as it plays

5 out in this case here, it's for the Prosecutor to put the facts forward

6 and they cannot do that in this case saying to you that they have assisted

7 the Tribunal to find the truth. They are adversaries in this case and

8 have conducted themselves as adversaries throughout. And this is not

9 meant to be a complaint about that. They will conduct themselves as they

10 see fit. Nor are they on trial. I'm defending Sefer Halilovic. But when

11 you come to consider the inferences they invite you to draw, you know

12 you're being given what they choose to give, not what they have to give.

13 And the Prosecution made a decision not to call its investigator

14 in this case. The evidence from Ramiz Delalic was extremely worrying

15 about that. Delalic plainly assisted procuring the witnesses who they did

16 call and plainly was closely associated with the impugned investigator,

17 and that is a further matter that you can take into account when invited

18 to draw an inference. You don't criticise the Prosecution's morals or

19 ethics. We are not asking that to be done. What we are saying is you're

20 being given half a story and because of that you may expose the inferences

21 they seek to very close scrutiny indeed.

22 That really introduces the Prosecution case in relation to Uzdol.

23 This was a hollow case. They led very little evidence. The Prosecution

24 led the barest minimum, not enough, we say, to found a conviction. Not

25 enough for you to have any sense of satisfaction as to what happened at

1 Uzdol. Not enough to allow you to have any sense of who had the duty, if

2 there was a duty, to investigate what happened there. Not enough to draw

3 any conclusion as to whether or not there was an investigation there.

4 Now, the Prosecution took a decision to call no evidence on the question

5 of whether or not an investigation happened. (redacted)

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted) Elicit the answer after 11 years, no, and rest. Now, that's

10 not good enough. This is a war crime that's being charged here. We say

11 that --

12 MR. WEINER: Your Honour, closed session, please. Private

13 session, please.

14 JUDGE LIU: Yes. Let's go to private session, please.

15 [Private session]

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 (redacted)

1 (redacted)

2 (redacted)

3 (redacted)

4 (redacted)

5 [Open session]

6 MR. MORRISSEY: Thank you, Your Honour. I'm grateful to the

7 Prosecutor for indicating that and I think I should indicate that at all

8 times I'm open to being corrected on that matter, as I have been on a

9 number of other occasions.

10 Well, Your Honours, that was the Prosecution's position in respect

11 of Uzdol, that they did not call any evidence that could answer the

12 question whether or not there was an investigation. Of course, the

13 Defence was in a position to put certain documents to the witnesses who

14 were called to indicate that there was an investigation that inquiries

15 were made and that reports were sought and reports were given. And that

16 conclusions were drawn about what happened in Uzdol. So the Defence says

17 in respect of that, the Prosecution did not prove that Halilovic had

18 effective control of those troops. We say the Prosecution did not prove

19 that Halilovic had a duty to investigate or to punish this matter. We say

20 that the Prosecution did not prove that there was any failure to

21 investigate.

22 And finally, depending upon the finding of fact made by the

23 Tribunal, if you were tempted, if you were not tempted, if you did find

24 against what we say is the weight of the evidence, that there was a

25 failure by Sefer Halilovic to investigate, that that failure had nothing

1 to do with the failure to bring any particular people to justice, and that

2 it is too minimal and too remote to be a war crime and to be the war crime

3 of murder. To say that Sefer Halilovic committed murder over an

4 unspecified failure at Uzdol is stretching that term beyond what it's

5 about. It really does raise the issue generally speaking, Your Honour,

6 of -- of what this Tribunal seeks to achieve. It doesn't seek to stretch

7 the law to accommodate Sefer Halilovic. It wasn't put here for Sefer

8 Halilovic or for his sort of conduct and that's why we ask for a very

9 mainstream approach which we know and we do expect.

10 Now, as to Uzdol, the village and what happened there, the

11 Prosecution's failures to we say the Prosecution committed failure after

12 failure in relation to that and we are going to point to them in detail at

13 the end of the case. But the big picture, if you like, and I've tried to

14 do this in respect to each one. The big picture with respect to Uzdol is

15 this it was an armed outpost where really civilian life had ceased to

16 happen in any meaningful way. The school was occupied by the -- the

17 school had ceased functioning. The civilians generally speaking had been

18 moved to Prozor and they had been accommodated in houses which in some

19 mysterious way had become empty in Prozor and what happened, Your Honour,

20 was that the shop was closed, the houses were occupied generally by

21 soldiers, such civilians as remained were people who came back and were

22 generally speaking involved in supporting the combat troops in their

23 combat tasks, cooking, doing home guard, so on. The pity of it was is

24 that people -- certain people for whatever reason, which they would

25 themselves, I have no doubt, regret, had brought some small children back

1 with them.

2 This is a village where civilians generally speaking had weapons

3 or access to weapons, where the evidence was absolutely clear that

4 civilians did have guns in their house. And where the evidence is clear

5 that there was a battle. Now, we ask you to set aside the evidence of the

6 witness Kate Adie who came and gave evidence. Perhaps it could be said

7 she gave her evidence in good faith but she just didn't have the expertise

8 or the time to do what she says she did, and unfortunately, the Defence

9 lass to make some criticisms of what she did even as a journalist. She

10 just didn't ask questions. But you would not have any hesitation to

11 dismiss her claims that there was a systematic house-to-house hunt because

12 the evidence just doesn't support that.

13 What we have in this Court was clear evidence that there was an

14 exchange of fire in the villages. You remember Mr. Stojanovic. It was

15 the person who ran down the road and jumped over his mother who he thought

16 was dead. It turned out she wasn't, and luckily she wasn't. He agrees

17 that he had an exchange of fire or at least fired shots towards the

18 attackers. You saw the videotape, you might recall, of the elderly

19 gentleman who was a survivor who lived and he was showing the cameraman

20 where his gun was. You might also recall on that occasion how the sound

21 went mysteriously blank at that point on the tape. It's just one of those

22 mysteries of nature that has never been exchanged in this case. But

23 anyway, we did restore that and we were able to play it and it turns out

24 he did have a gun. You had the book concerning Uzdol where the mother of

25 the three poor children, Mrs. Zelic, was praised for throwing hand

1 grenades at the incoming troops. And you had other witnesses giving

2 evidence about hand grenades. And in short, although you can't say that

3 each person did or did not have a weapon, and the evidence just doesn't

4 tell you that, you can't infer that the attackers here, the people who

5 came in, thought they were dealing with civilians.

6 Now, what happened in the -- what happened in the villages of

7 Uzdol is not explained. You may have had people kicking in doors and

8 shooting whoever was inside. There could be all sorts of explanations.

9 You could have that sort of thing happening leaving close-up injuries.

10 The failure to prove the crime base is really important in that case

11 because the Prosecution, as one of the elements and one of the many

12 elements have got to prove that these were murders and are murders of

13 people who were not taking part in combat hostilities, and also that the

14 killers didn't think they were taking part in combat activities. The

15 Prosecution just didn't try in respect of that. Now, there are a small

16 number of killed and that's -- and what I say when I -- what I mean by

17 this is that the Prosecution have to prove their case. I do not mean to

18 suggest in saying this that any victim, person killed, at Uzdol brought

19 their fate on their head, deserved death or pain, but the Prosecution have

20 the onus of proving it, according to law, that each was a murder, and

21 unfortunately, there is no doubt, there can be no doubt, that this crime

22 scene was played with. To what extent, you don't know.

23 But you've got evidence of weapons, you've got evidence of

24 civilian-clothed people shooting at the incoming soldiers, and by that I

25 mean Mr. Stojanovic who you'll recall his own mother said was wearing a

1 track suit when he was shooting. And with respect to each death, there

2 really is a doubt, even the three children.

3 That's not an area where the Defence has to fight the battle.

4 None of that, no one says Halilovic had anything to do with that or knew

5 about it, and it's far away from the guilt of Sefer Halilovic. But the

6 Prosecution have got a prove it and they will have to specify to you how

7 each one is proved. At the moment that -- there is just no sense that

8 that's being done on the evidence.

9 Your Honours, it really -- again, before I press on with that,

10 raises another issue and that's the issue of, frankly, the victims here.

11 The victims are not limited to the killed, the deceased in the case,

12 although they are the only ones that are an element of the crime. The

13 victims include the sad people left behind and the ones who would like to

14 know what happened, and would like to know the answers. Now, it's part of

15 the healing process of this Tribunal that everything comes out. That's

16 the idea. And when the Prosecutor takes the adversarial stance that they

17 did here and sculpt the evidence as they chose to do, and that's not what

18 is happening in this Tribunal. No victim wants Sefer Halilovic. And

19 explaining to victims how it was that Sefer Halilovic is there, and Ramiz

20 Delalic and Witness D were there, is a challenging intellectual exercise.

21 Now, the Prosecution did not prove that these troops were in the

22 effective control of Sefer Halilovic. I was relatively brief about the

23 way in which effective control should be dealt with in Grabovica because

24 it's a long, tangled matter with many different parts of evidence. It's a

25 little simpler with respect to Uzdol because in Uzdol you have a combat

1 report by Enver Buza, the commander of the Prozor Independent Battalion

2 who evidently did make an inquiry into what happened and reported on

3 that. And he said in his report, which you have tendered into evidence,

4 his combat report, that it was a combat activity that took place pursuant

5 to an order, an order numbered 01/1500-27. Both Buza's combat report and

6 the order that it relied on, order 1527 -- sorry, 1500-27 are in evidence

7 in this case and Buza says that he was attacking Uzdol pursuant to an

8 order of the 6th Corps Command. Now of course, the witness Salko Gusic

9 said that Buza's unit was subordinated out of his command for that time,

10 but that ought to be just disregarded and Mr. Gusic, you might regard as a

11 witness who was running a mile from liability and to say he was not in the

12 chain of command when in reality he was. And that order is just

13 conclusive proof beyond any shadow of a doubt that that's the chain of

14 command that existed at that time.

15 Now, it's important to look without the benefit of hindsight and

16 look at how people at the time dealt with the problem at Uzdol. Exhibit

17 227 was an inquiry from the head of the SVB, Jusuf Jasarevic, and when he

18 heard about the Uzdol matter, he directed his inquiries not to Sefer

19 Halilovic or to the inspection team but to the 6th Corps military

20 security. Exhibit 159 was an exhibit where the deputy commander of the

21 Bosnian army, standing in at that moment for Rasim Delic -- that deputy's

22 name was Stjepan Siber and Siber sent a letter on the 16th of the 9th

23 inquiring about what happened in Uzdol, and he sent that letter to the

24 commander of the 6th Corps, not to Sefer Halilovic or to the inspection

25 team.

1 Exhibit 228, Jusuf Jasarevic, two days later on the 18th of the

2 9th again was directing his inquiries directly to the 6th Corps. Now,

3 it's in that light that the Defence is going to call the witness

4 (redacted). In one sense he's not necessary because we say that the

5 evidence is very strong that at the time when news of Uzdol happened, the

6 matter was dealt with in an appropriate way at the battalion level through

7 the normal chain of command, from Siber, acting commander or deputy

8 commander, through the 6th Corps command down to the battalion, Prozor

9 Independent Battalion, back up again.

10 Now, the Prosecution as we say embarked on the strategy of not

11 leading any evidence about what happened. And in one respect it's

12 unnecessary to call any evidence about it because the burden is on the

13 Prosecutor, not on us, but because we found (redacted) we are going to

14 call him. And he is -- he's a witness who was the (redacted).

15 He'll say, Well, yes, I was asked and I did take statements and

16 I drew a conclusion. And you can see later on in other material that's

17 admitted into evidence what the conclusions were, that those who

18 investigated, having taken statements, found that nothing had happened.

19 Nothing illegal had happened, I should say. Plenty happened but nothing

20 illegal happened.

21 Now, again, it's important to put yourselves into the steps --

22 into the shoes of those who were actually faced with investigating. They

23 had been chased out of the Uzdol village or villages and they had no

24 opportunity to go there. In any event, you might form a view that there

25 was some propaganda activities engaged in and it's a sad and amazing thing

1 to see that you get a mixture of genuine grief and real sadness with the

2 people who were killed and yet also at the same time a production. And

3 that happened, and you can see what happened in the evidence of Kate Adie

4 and others.

5 But what could viably be done at that time was to take statements,

6 to inquire among themselves. That's what could happen and that's what did

7 happen. But the news at that time, as far as people in the local area was

8 concerned, seems to be or the evidence seems to be that it came from one

9 source only, and that's the famous radio Rama which was an HVO radio

10 station or a station at least which was viewed by those on the other side

11 as being a station that did not tell the truth, that was unreliable. And

12 that radio station appears to have cried wolf once too often so now here

13 when you have something happening at Uzdol which may - the Defence doesn't

14 concede that it did - but may constitute a crime, no one believed them.

15 Because they had lied too many times before.

16 Now, Your Honours, that's the reason for calling the other witness

17 that's going to be called, whose name you have. I won't say it now

18 because we may -- I'm not sure what his position is going to be about

19 protective measures and so on. But knowing his job, I foresee the

20 possibility that like some other witnesses he might have some concerns

21 about that. So -- but there is a soldier who went through the village on

22 the Bosnian army side and he's chiefly being called because we want to ask

23 him was he questioned and he's going to say, yes, he was. He's going to

24 explain who it was who did it and he'll indicate what happened there.

25 Now, you may or may not approve the findings that were made of

1 that inquiry but they were made and you can see how they were made because

2 those making the inquiry asked in good faith, were told what they were

3 told and had no other way of investigating. And after that, those at the

4 very senior level, including General Jasarevic, were prepared to sign off

5 on a report and an opinion saying nothing happened. Now, it's -- in

6 our -- our submission is that Halilovic was not obliged to involve

7 himself in that in the least. But if you were against us on that you

8 would find that what was required of him is exactly what happened, namely

9 that an inquiry be made. Now, a witness -- just excuse me one moment,

10 please, Your Honour.

11 There is another witness who has been indicated to the Court and

12 the Prosecutors, who is a UN person and his name would be necessarily

13 subject to protective measures. He'll say something about how possible it

14 was to get information on the HVO side at that time. And that's why he's

15 being called.

16 So we say in relation to that that the investigation had to be

17 done at a local level. It was done at a local level. And all that could

18 be done was. But in any event, it's never been shown that the accused man

19 had any powers to initiate or conduct any investigation at that point. It

20 has to be remembered what resources he had. He was in the inspection

21 team. He had one military security officer. That person is Namik

22 Dzankovic. That person was already tasked with looking after and looking

23 into what occurred at Grabovica and he was on the terrain in Grabovica and

24 residing in Jablanica. He seems to have played no part on the northern

25 part of the front. If Halilovic was required to do anything, it's an

1 interesting proposition to see what organs he was supposed to use, but let

2 it be speculated that he should have used the local ones. Well, they were

3 used. They did what they could.

4 And it's a matter that we say was dealt with at a level lower than

5 where Sefer Halilovic was. That's if they prove he was in command.

6 Your Honours, I should just make a remark about effective control

7 generally here. The issues of effective control elude local law and it is

8 not necessary for the Prosecutor to prove that Sefer Halilovic was

9 appointed the commander de jure just as it's not sufficient for them to

10 prove that. But in this case, they've undertaken to prove that in their

11 indictment. They said that he was both de jure and de facto commander.

12 So in this case, although generally speaking a Prosecution can secure a

13 conviction in the absence of a -- proving a de jure responsibility, in

14 this case, the Prosecution need to prove de jure responsibility. They

15 need to prove that. Because there is a distance between Sefer Halilovic

16 and those troops, if they were troops, who committed the killings. I say

17 that because at Uzdol there is clear evidence that there were present in

18 the attack units who were not part of the army structure but were from the

19 police. And no one has proved in Uzdol of course, who killed which

20 person. And it's never been proved.

21 So for those reasons -- the crime scene -- the crime scene matters

22 in that regard but in terms of the de jure case that the Prosecution wants

23 to mount, we urge you to pay very close attention to the order of the 30th

24 of the 8th, the 30th of August. Now, that order -- just excuse me one

25 moment.

1 Sorry, I'm just going to procure a copy of it, Your Honour. I

2 know we've -- we've all learnt it by heart to some degree in this case.

3 While it's being found I think I can conduct myself by heart in any event.

4 That order is relied on heavily by the Prosecutor because there really is

5 no other basis for the de jure case. The map that was produced in court,

6 which was signed off on at -- at Jablanica when Rasim Delic was present,

7 that map speaks for itself. Sefer Halilovic signed it as Chief of Staff.

8 Rasim Delic signed it as commander. And he said the words "odobrava," I

9 have approved it. It's possible to construct an argument that a person

10 who signs an order in that way may -- who signs an order as Delic did may

11 not be the operative commander but it's an unpersuasive argument and we

12 think we will be able to point out exactly why it fails. But in any

13 event, it leaves that argument moot and the Prosecution desperately needs

14 this order of the 30th and it's an order that speaks for itself. It

15 creates an inspection team. And the inspection team has functions.

16 Your Honours, I'm sorry, it's D146, Exhibit 146. It's on the screens

17 now.

18 It makes it clear that the team has to be formed - this is at

19 point 1 - to coordinate the work and tasks in the zone of responsibility

20 of the 4th and 6th Corps. So, if you like, the overarching purpose of

21 this is set out there and it's coordination. Now then, in point 1, comes

22 the famous reference to control of combat operations. The Defence says

23 that it's just an incoherent reading of this order to suggest that that

24 gives command of an operation to Halilovic. It's inconsistent with the

25 foregoing sentence. It's inconsistent with the nature of an inspection

1 team. It's inconsistent with prong number 3 there which gives actually a

2 limited power to give orders. And I pose the question rhetorically,

3 what's the need for a power to give orders, a limited power to give

4 orders, in point 3 if Halilovic was being appointed a commander somewhere

5 else in the order? Look to point 4. It says "the monitoring should begin

6 on a certain date and be completed by," an unfilled-in date, "submit a

7 report," that report orally, "on important questions during the

8 inspection."

9 Now, if combat activities were to last beyond the inspection date,

10 what's the effect of this report? And what happens to this team that's

11 created ones it reports, as it did, on the 20th of September? The Defence

12 says that whilst there may be room for a couple of different

13 interpretations of that order, you could not conclude to any standard of

14 proof that this creates a command function in Sefer Halilovic. And that

15 is their case, de jure.

16 Really, it supports the thesis of the Defence more than it

17 supports the Prosecution. We say that it says what it says it is. We say

18 that it's quite clear what Sefer Halilovic's role was. He was the head of

19 an inspection team. Why appoint him in point 2 as the head of an

20 inspection team? You've seen orders here that have been tendered to make

21 it quite clear how you appoint a commander. You appoint him as commander,

22 or her as commander. You say who they are commanding, which units they

23 are commanding. How long they command them for.

24 And it's because of that search for some function for Halilovic

25 outside of the obvious one which is head of the inspection team that the

1 Prosecution came up with this idea of an operations group. Now, that

2 really was a very admirable effort by the Prosecutors, and they should be

3 intellectually praised for trying. It's worth a try. It's outside the

4 pleadings, though, it's way outside them. And it's outside the evidence,

5 too, because there was no operations group. There was none. No one at

6 the time heard of it. There is no order creating it. There is no

7 resubordination of units to it and that operations group didn't exist.

8 And if the Prosecution are heard to argue that there was a quasi or

9 partial operations group, then there is no evidence of that either, nor

10 should they be granted the -- the right to argue that at a late time in

11 the case when that does not appear in the indictment and is inconsistent

12 with that indictment.

13 So, Your Honours, at the end of that analysis of the Uzdol

14 crime -- the Uzdol charge, and having looked at that order, I simply want

15 to say that when it comes to the effective control argument the

16 Prosecution want to run, they can't prove the -- excuse me a moment, I'm

17 sorry, Your Honour.

18 Sorry about that, Your Honour. They can't prove the de jure case

19 and they can't prove any other form of appointment, any, if you like, de

20 facto appointment. And at the other end of that equation is the question

21 of whether the troops themselves were under the effective control, and

22 because that's a matter that relies on many pieces of evidence I'm not

23 going to rehearse it now as I indicated earlier, but you have to consider

24 questions of whether or not those troops who were in Jablanica -- in

25 Grabovica at the time of the killings were under anyone's control.

1 Because what looks to have happened is that Ramiz Delalic came

2 down to Jablanica with them and then left. It's possible that he went to

3 the village, too. We don't know. He gave there account of being in

4 Konjic and amusing himself there but that should be disregarded because

5 the evidence was very strong that that's not what he did and it's not

6 really consistent with his previous stories that he's told either. It

7 looks as if he came down to Jablanica with them. Now, after that, he left

8 and it would appear the evidence -- the weight of the evidence is that he

9 wasn't present when the killing happened. We don't know but there is no

10 evidence that he was there when the killing happened. And it really does

11 appear perhaps -- I'm just reminded that there is actually some evidence

12 that he was there earlier on in the afternoon. That has to be taken quite

13 seriously. But in terms of presence during the crimes, the shootings

14 and -- let it be clear there were some atrocities committed in Grabovica.

15 But whether those troops were under anyone's control at that time is open

16 because he came along, they were supposed to be resubordinated to Zulfikar

17 Alispago, according to some evidence. Is it proved that Zulfikar Alispago

18 had effective control over them? It's not. And all along that chain,

19 it's not proved, and their very conduct suggests that they were not in

20 control either. But in any event, I'll enter if I continue like that, I

21 will enter into that area that we will keep to the end so I won't do it.

22 So, Your Honours, that's what the Defence says. We have attempted

23 to put here our case through the Prosecution and that's why it's

24 appropriate to review the evidence rather than to introduce everything

25 that's to come because there is not much to come. There really isn't. We

1 intend to finish this with anyone a fortnight and if it wasn't for the

2 fact that witnesses were ill or unable to dom this week it might be

3 quicker. There remains -- I've got an administrative detail I'll come to

4 later on.

5 Finally it remains to this say: In terms of analysing our case

6 it's too early for you to uphold any submission by me now. You have

7 not -- I don't ask you to -- but it's important to understand where the

8 case stands now, the Defence is asserting that the Prosecution have

9 already failed. We are not now saying that we have a knockout punch or

10 something new. We are saying that the Prosecution has now failed to meet

11 its task. We are going to add some evidence to that, but that's what we

12 say.

13 And in light of that, we just make the final comment. It's a

14 short case. Some people on the internet here -- internet here are saying

15 it's the shortest case that's been run, but we have faith that running a

16 short case is not in any way going to compromise the fair trial that we

17 get. We have faith that the Tribunal will look at the evidence, not in

18 search for the way the Prosecution puts its case but in search of the way

19 the Defence puts its case, too. And, Your Honours, when you come to

20 consider the evidence and when those who are assisting you in particular

21 who perform an important job in helping you to do the work and to prepare

22 things, when they come to consider the evidence, when you come to consider

23 it, don't look to the Prosecution case simply to find the Prosecution

24 evidence in it. That's where our evidence is.

25 And we think when you look at the sensible, reliable witnesses,

1 people like Namik Dzankovic, people like Vahid Karavelic, people who are

2 sensible, people who didn't have an axe to grind, the victims from

3 Grabovica, they were sensible witnesses, those people are the people on

4 whose judgement you rely.

5 Now, the Defence wants to point finally to the witnesses who we

6 say you should disregard completely and we are not going to embark on why

7 because that's something to do at the end of the case. But we say Ramiz

8 Delalic is in a special category of his own. Not only should he be

9 disregarded but you can trace back the damage to that he does to the

10 Prosecution case through his evidence. He's in a special category because

11 he's not just to be disregarded. He was a positive force for evil in the

12 Prosecution case. He joined the Prosecution case back in the days when

13 Mr. Mikhailov was the investigator. He procured witnesses. And it's a

14 funny thing that the witnesses who came here from the 9th Brigade who were

15 hostile to Mr. Halilovic was he, himself, Mr. Delalic, Witness D, and the

16 two other individuals who were both -- who were all three associates of

17 his during and after the war. The other people who were called, even

18 those who were soldiers at Grabovica, did not say those things about Sefer

19 Halilovic. And there was a real smell of collusion about those people

20 because of the way their stories changed together.

21 But the detail, that is for another time. We ask you not to set

22 weight by the evidence of the witness Gusic, Salko Gusic. He was in the

23 chain of command here. He played his part. He was very keen to distance

24 himself. He had a position to protect. So although he attributes a great

25 deal of command responsibility and influence to Sefer Halilovic, he has a

1 reason to do that and you know about him two things: That it was his

2 command that issued the order to the Prozor Independent Battalion to go

3 into battle, and you know he told a false story to this Tribunal and he

4 was caught red hot doing so concerning his knowledge of the operation. He

5 said he didn't know the name of the operation and didn't see that map.

6 But a reliable, sensible witness, Selmo Cikotic, gave evidence here and

7 was not challenged by anyone. And he said that Gusic indeed did and was

8 given tasks. And he's therefore a witness with a purpose to serve and

9 whose evidence is proved to be wrong on significant points and should be

10 disregarded.

11 There was one other witness who had a pseudonym, who gave evidence

12 of having seen Sefer Halilovic a day or so after the killings. Wasn't

13 clear whether it was the 10th or the 11th, but it was evidence that he had

14 seen him there. That person was Witness E. I know his name, I've just

15 now forgotten his pseudonym. He was the witness who had that diary which

16 Your Honours may recall and he for reasons of the way he gave his evidence

17 and for the certain facts that were elicited about him during the

18 evidence, we say he is also a witness who should be disregarded.

19 There are other witnesses with whom we take issue on certain

20 points. But generally speaking, the witnesses did the best they could.

21 It's 11 years ago, and the Defence may identify problems with a witness,

22 you don't have to take any notice of that, unless it's significant of

23 something in the case.

24 Your Honours, that's the end. Those are the remarks I wish to

25 make.

1 JUDGE LIU: Thank you very much. Just two clarifications. The

2 first one is about the quotation you made. What is the name of the case?

3 I believe that we missed it in the transcript.

4 MR. MORRISSEY: There was two. There was the high command case,

5 and there was Pohl, P-o-h-l. Your Honours --

6 JUDGE LIU: Thank you. I think the first, it may be Pohl.

7 MR. MORRISSEY: Pohl, P-o-h-l. Yes, Your Honour.

8 JUDGE LIU: Thank you very much. The second question is about the

9 famous document of 30th of August. Do you happen to know the completion

10 time in the paragraph 4?

11 MR. MORRISSEY: It wasn't there in the -- it's not on the

12 document.

13 JUDGE LIU: I see. Any information on that from the Prosecution?

14 MR. WEINER: Not off-hand, Your Honour.

15 JUDGE LIU: Thank you very much. I believe we need a break right

16 now. We will have a 30-minute break and we'll resume at 20 minutes to 6.

17 --- Recess taken at 5.10 p.m.

18 --- On resuming at 5.41 p.m.

19 JUDGE LIU: Well, if the parties have nothing to say at this

20 stage, could we have the witness, please?

21 MR. MORRISSEY: Sorry, Your Honours. Sorry, pardon me, Your Honour

22 just raised a question before -- before the break concerning that the time

23 for the inspection team to report, and if you just have regard to the

24 final sentence it will say the control ends at the time of the report. I

25 haven't got it on the screen anymore. Your Honour, in part 4 it says

1 "submit a written report on return." So that then you can link that to

2 the written report that was in fact issued and is in evidence.

3 JUDGE LIU: Thank you.

4 I'm afraid we have to wait a few minutes more. There is no

5 protective measures for this witness, I guess.

6 MR. MORRISSEY: No, there isn't, Your Honour. I had in mind just

7 to go into the private session just to ask where he lives and -- where he

8 lives and where works. That's the only issue.

9 JUDGE LIU: Yes. You may inform us when the time comes. Yes?

10 MR. WEINER: No objection to that, those few questions.

11 JUDGE LIU: Thank you very much.

12 MR. MORRISSEY: I'm grateful for the Prosecutors' assistance there

13 in that matter, Your Honour.

14 [The witness entered court]

15 JUDGE LIU: Good afternoon, Witness. Can you hear me?

16 THE WITNESS: [Interpretation] Good afternoon. Yes, I can hear

17 you.

18 JUDGE LIU: Would you please make the solemn declaration in

19 accordance with the paper Madam Usher is showing to you?

20 THE WITNESS: I solemnly declare to tell the truth, the whole

21 truth, and nothing but the truth.

22 WITNESS: MEHMED BEHLO

23 [Witness answered through interpreter]

24 JUDGE LIU: Thank you very much. You may sit down, please.

25 Mr. Morrissey, the witness is yours.

1 MR. MORRISSEY: Thank you, Your Honour.

2 Examined by Mr. Morrissey:

3 Q. Thank you, Mr. Behlo. Would you please state your full name?

4 A. My name is Mehmed Behlo.

5 MR. MORRISSEY: Your Honour, could we just briefly move into the

6 private session, please.

7 JUDGE LIU: Yes, we will move into the private session, please.

8 [Private session]

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 [Open session]

24 JUDGE LIU: Now we are in the open session.

25 MR. MORRISSEY: Thank you, Your Honour.

1 Q. Thank you very much, Mr. Behlo. Would you mind just telling the

2 Judges your age, please?

3 A. 35.

4 Q. And in September of 1993, were you a member of the 317th Brigade

5 of the Bosnian army?

6 A. Yes.

7 Q. What was your position in that brigade?

8 A. I was appointed as the commander of the 2nd Battalion of the

9 317th.

10 Q. Okay. And how old were you at that time?

11 A. I wasn't yet 23.

12 Q. How many men were there in the 2nd Battalion which you commanded?

13 A. Roughly speaking, over 400 men.

14 Q. And when did you take up your position as the commander of that

15 battalion?

16 A. In June 1993.

17 Q. Okay. Before you became involved in the war, what military

18 experience did you have?

19 A. When performing my regular military service, I had received

20 training in Zadar and after that course I received training in Ohrid.

21 That was part of my regular military service.

22 Q. I see. And before you took up the position as commander of the

23 2nd Battalion of the 317th Brigade, what combat experience did you have?

24 Just keep this very brief, please, but what involvement in the fighting

25 did you have before that?

1 A. I don't understand the question. Before my duties or before the

2 war?

3 Q. No. I really meant -- perhaps I'll ask the question again because

4 it wasn't too good. How did you become involved in the war and what did

5 you do before you became the commander of that battalion? Just as a very

6 brief overview of that.

7 A. When the war broke out, I was mobilised. Men from the Territorial

8 Defence Staff which was in Gornji Vakuf at the time, issued me with a

9 summons. I was then involved in organising Territorial Defence units and

10 when the 317th Brigade was established, I was also engaged in carrying out

11 similar tasks.

12 Q. Very well. I understand. Now, could you just indicate what --

13 which unit was the 317th Brigade subordinated to? In what line of command

14 was that?

15 A. The 317th Brigade was part of the Zapar OG which had its command

16 post in Bugojno, and all these formations were under the command of the

17 3rd Corps which was located in Zenica.

18 Q. Yes. Now, could you indicate what was the geographical zone of

19 responsibility of the 317th Brigade?

20 A. The -- when the 317th Brigade was established, and after it had

21 been established, it was active in the territory of Gornji Vakuf.

22 Q. And which part of that territory was your battalion concerned to

23 defend?

24 A. My battalion was on the left flank of the area of responsibility

25 of the 317th Brigade.

1 Q. Okay. And which part of your brigade adjoined you on your

2 right-hand side?

3 A. I didn't have any physical contact with the brigade on the

4 right-hand side.

5 Q. And on your left-hand side, who was your immediate -- which

6 military formation was your immediate neighbour?

7 A. On the left-hand side, my area of responsibility, was the area of

8 responsibility of the -- or rather the area of responsibility of the 2nd

9 Battalion, this was the Prozor Independent Battalion.

10 Q. And in which line of command was the Prozor Independent Battalion?

11 Who did it report to?

12 A. They were in the zone of responsibility of the 6th Corps, with its

13 headquarters in Konjic.

14 Q. Okay. Where was the headquarters of your brigade?

15 A. The headquarters of my brigade was located in the centre of Gornji

16 Vakuf.

17 Q. Where was your battalion headquarters?

18 A. It was located in the Voljevac village.

19 Q. Did you have a -- do you know a village called Mackara?

20 A. Yes. It was located within the zone of responsibility of my

21 battalion.

22 Q. Very well. Were there any facilities at Mackara?

23 A. Yes. There were a few small buildings and there was a house

24 there.

25 Q. All right. And did your battalion have any activities or any

1 facilities at that particular village or location?

2 A. Yes. There were some logistics facilities there.

3 Q. Okay. And where was the headquarters of the Prozor Independent

4 Battalion?

5 A. It was located in the village of Scipe.

6 Q. And did it remain in the village of Scipe or was it moved to

7 another location?

8 A. I don't know.

9 Q. Okay. Do you know a location called Dobro Polje?

10 A. Yes, I do.

11 Q. What was located in September 1993 at Dobro Polje?

12 A. One of the command posts of the Prozor Independent Battalion was

13 also located there.

14 Q. Very well.

15 MR. MORRISSEY: Your Honours I would like to show the witness a

16 document that he produced and place this on the ELMO. Your Honours, this

17 document I believe has been circulated by e-mail. It hasn't been uploaded

18 as yet. We are going to have it scanned with the colour scanner because

19 it's got a colour drawing.

20 JUDGE LIU: I believe you ask some questions about where and how

21 this map is drawn.

22 MR. MORRISSEY: Absolutely, Your Honour.

23 THE REGISTRAR: Your Honours, that will be M5445.

24 MR. MORRISSEY: I'm grateful for that assistance.

25 Q. Very well, Mr. Behlo, what is that document that's just been

1 placed on the screen next to you?

2 A. This is a sketch of the area of my responsibility, of the area of

3 responsibility of the 2nd Battalion.

4 Q. Very well.

5 MR. MORRISSEY I wonder if that could be zoomed out, please, just

6 slightly so that the edges can be seen. Very well, thank you very much.

7 Q. And when did you produce that particular drawing?

8 A. Yesterday or the day before yesterday, I think. I think it was

9 yesterday.

10 Q. Very well. Thanks very much. Just do you have a pointer there in

11 your hand? Yes, I see you do. Would you mind please pointing on that

12 map, first of all, to the town of Prozor?

13 A. [Points]

14 Q. Could I ask you in September of 1992, who was it who occupied and

15 held that town -- in 1993, I'm sorry, did I say a different date?

16 A. The HVO forces were there.

17 Q. And approximately when did the HVO forces take that -- take

18 possession of that town?

19 A. Roughly speaking it was in November 1992.

20 Q. Yes. Thank you. Would you just trace the approximate front line

21 as you've drawn it on that map with the pointer, just so that the Judges

22 can see and the Prosecution can see where the front line was?

23 A. [Witness complies]

24 Q. Start on one edge and go to the other.

25 A. This is the right-hand side of the area of responsibility. The

1 line passed by the village of Dobrosin [phoen], which is where HVO forces

2 were deployed. Then it continued through Crni Vrh, and extended to this

3 part here that is called Menik. And here between two villages there was a

4 link with the Prozor Independent Battalion. This is where it joined the

5 Prozor Independent Battalion. On the other side, we have the area of

6 responsibility of the Prozor Independent Battalion.

7 Q. Very well. Would you please now point to Voljevac, the

8 headquarters of your battalion?

9 A. [Points]

10 Q. Thank you. Could you please point to where the collection of

11 villages called Uzdol is?

12 A. [Points]

13 Q. Okay. Can you say approximately what was the distance from Uzdol

14 to Prozor town?

15 A. It would be about ten kilometres or even less.

16 Q. Very well. Now, near to Uzdol, were there some Bosniak villages

17 called Here, Kute, and Scipe?

18 A. Yes.

19 Q. Would you just point out for the judges and the Prosecutor where

20 those villages were? Or are?

21 A. [Points]. This is the village of Here. Here we have the village

22 of Scipe and a little further away we have the village of Kute.

23 Q. Just to remind us, could you please point to where Dobro Polje is?

24 A. Dobro Polje was in the depth of the Prozor Independent Battalion's

25 area of responsibility.

1 Q. Yes. Okay. Now, just returning to your zone of responsibility,

2 was there a hill there called Crni Vrh which you've marked on the map?

3 A. Yes.

4 Q. Would you just please point to the whole hill running the pointer

5 along it to show that -- the Court what is meant by Crni Vrh?

6 A. [Points]

7 Q. Okay. Thank you. Near to Crni Vrh, is there an area called

8 Makljen?

9 A. I don't know that place.

10 Q. You probably don't know how I pronounce it but on the map you've

11 marked there M-a-k-l-j-e-n.

12 A. Yes, there is a place called Makljen. It's a pass over the

13 mountain.

14 Q. Okay. Thank you. And does a road run through that pass?

15 A. Yes. As I have said, it's a mountain pass. It goes over the

16 mountain.

17 Q. Could you indicate to the Tribunal and the Prosecutors what was

18 the strategic importance from the HVO point of view of Prozor and of that

19 road?

20 A. There were HVO forces which were mainly concentrated in Prozor,

21 and they used the Makljen pass, the road leading to Gornji Vakuf, to

22 provide reinforcements and to deploy their forces in the village of Pidris

23 primarily, and in Makljen, and from these positions, the artillery shelled

24 Gornji Vakuf.

25 Q. Very well. And can you explain, what did you understand to be the

1 situation of Uzdol and what did you know about any HVO units that were

2 there, in particular?

3 A. I think that there were some reserve forces that were deployed

4 there, forces for the defence line in the town of Prozor.

5 Q. Thank you very much.

6 MR. MORRISSEY: Your Honour --

7 MR. WEINER: Your Honour, can I move to strike that or at least

8 goat some clarification in he says I think. That's outside the

9 jurisdiction of the area of his troops. Is he guessing or does he know?

10 JUDGE LIU: Well, maybe you could ask some more questions,

11 Mr. Morrissey, in this aspect.

12 MR. MORRISSEY: I will, Your Honours, but I don't want

13 applications to strike like that to be made any more. However -- sorry,

14 Your Honours, I just want to get the thing back up on the screen. Okay.

15 Q. What was your source of knowledge for what you knew about the

16 troops in -- in Uzdol? Where did you get your information?

17 A. Well, I had certain information from the adjacent areas of

18 responsibility, information that was relevant to my area of

19 responsibility. And what I have in mind is in fact the deployment of HVO

20 forces.

21 Q. Did you ever receive refugees or escapees coming across from

22 HVO-occupied territory?

23 A. Yes.

24 Q. Very well. Thanks.

25 MR. MORRISSEY Well, I offer that document for tender, Your Honour?

1 JUDGE LIU: Any objections, Mr. Weiner?

2 MR. WEINER: No objections.

3 JUDGE LIU: Thank you very much. It's admitted into the evidence.

4 MR. MORRISSEY: Could I indicate that we'll have that scanned and

5 it will be in the E court format shortly.

6 JUDGE LIU: Thank you. And the court deputy will tell us the

7 number of that document.

8 THE REGISTRAR: That will be Exhibit D446.

9 JUDGE LIU: Thank you.

10 THE REGISTRAR: I apologise, that will be D445.

11 JUDGE LIU: Thank you.

12 MR. MORRISSEY: Okay.

13 Q. Now, in a few minutes, Mr. Behlo, I'm going to return that

14 document to you to comment on the combat operations when we actually get

15 to those but now I want to take you back a couple of weeks or two weeks or

16 so before the combat operations. What was the first instruction you

17 received concerning these -- the combat operations which ultimately

18 happened on the 13th and 14th of -- and 15th of September?

19 A. Towards the end of August 1993, and at the beginning of September,

20 we received preparatory order from the command of the 6th Corps.

21 Q. And can you indicate which person you received -- can you recall

22 which person you received those orders from?

23 A. Can't remember exactly.

24 Q. Okay. How was it that you received orders from the 6th Corps when

25 your unit was as a matter of organic structure within the organisation of

1 operations group Zapar and the 3rd Corps?

2 A. There were individual orders that concerned combat action and they

3 were received from the 6th Corps, and I had to inform my commander in the

4 317th Brigade of these orders.

5 Q. I neglected to ask you but who was the commander of the 317th

6 Brigade at that time?

7 A. Enver Zejnilagic.

8 Q. What did you understand to be his military experience?

9 A. He was a high-ranking former JNA officer, and he had a lot of

10 experience as a member of the military.

11 Q. Now, you referred to orders of the 6th -- coming from the 6th

12 Corps command. What was the substance of those orders?

13 A. The preparatory orders had to do with selecting a certain number

14 of troops and deploying them at Dobro Polje, where they were to prepare to

15 launch an offensive.

16 Q. And Dobro Polje being in part of the independent Prozor

17 Battalion's area, was the Prozor Independent Battalion involved with this

18 order?

19 A. Yes.

20 Q. All right. And in practical terms, what efforts did you make to

21 carry out these orders and what happened?

22 A. I ordered that some men from the 2nd Battalion unit be selected,

23 men who were best prepared at that point in time to carry out the task.

24 Q. Okay. And what sort of things did those men do up at Dobro Polje?

25 A. They mostly carried out short training and worked on some military

1 skills.

2 Q. And in that time, was it required of you to liaise with Enver

3 Buza, the commander of the Prozor Independent Battalion?

4 A. Yes. I had to coordinate this task with Enver Buza.

5 Q. Very well. Which person from the 6th Corps command did you have

6 the most frequent contact with in that time, if you can remember?

7 A. I cannot remember.

8 Q. Very well. Now, at some time, did you become aware of the

9 impending visit of some senior generals from Sarajevo?

10 A. My commander, Zejnilagic, told me that.

11 Q. And what did he tell you when you first heard about it?

12 A. That I should go with him to a meeting in Dobro Polje.

13 Q. Are you able to remember the date of that meeting or not?

14 A. It was sometime before the preparations. Actually, during the

15 preparations.

16 Q. Just giving your best estimation, about how long before the actual

17 combat began do you recall this meeting taking place?

18 A. About five days before, or slightly less.

19 Q. Okay. Now, who did you see -- or perhaps I should ask you the

20 identities of the senior people who came from Sarajevo. Who did you

21 understand was coming?

22 A. General Halilovic, Karic, and the rest.

23 Q. Now, can you remember which ones of those individuals you actually

24 met yourself?

25 A. There was this preparatory meeting. I was with my commander, and

1 that was the first time I saw General Halilovic.

2 Q. And who else was there, to your recollection?

3 A. I know that commander Cikotic was there, and the commander of the

4 6th Corps, Gusic. I cannot remember the others.

5 Q. And what happened at that meeting?

6 A. Nothing special. The meeting didn't last very long, and

7 logistical needs were mostly discussed for units that were already in

8 Dobro Polje.

9 Q. Yes. Okay. And which units are you talking about which were in

10 Dobro Polje? Are they the ones you referred to earlier on or different

11 units?

12 A. I'm thinking of the ones that were there as well as others of the

13 that was when I heard that other units were supposed to arrive.

14 Q. Okay. Did you meet an individual named Bilajac, Rifat Bilajac?

15 A. Yes, I remember that.

16 Q. And where did you meet Bilajac? And in what circumstances?

17 A. I first had contact with him in the village of Voljevac.

18 Q. And was that before or after this meeting at Dobro Polje, to the

19 best of your knowledge?

20 A. It was after.

21 Q. And what happened in your meeting with Mr. Bilajac? Who was there

22 and what did you talk about?

23 A. At the invitation of my commander, Mr. Zejnilagic, I came for a

24 brief consultation which was also attended by General Bilajac, actually

25 Rifat Bilajac.

1 Q. What contribution did Mr. -- Did General Bilajac make to this

2 meeting?

3 A. He just wanted to hear about the preparations that I had carried

4 out, what plan I was proposing. Yes.

5 Q. And when you told him about what plan you were proposing, what did

6 he say and what did he do?

7 A. He continued the conversation with my commander, Zejnilagic, and

8 explained some details to me. Actually, he gave me some instructions

9 about how to implement the plan.

10 Q. Okay. Do you know what an operations group is?

11 A. Yes, I do.

12 Q. Now, at the time of the planning of this -- of these combat

13 operations, did you ever hear it suggested that Sefer Halilovic had come

14 down to lead an operations group in that area?

15 MR. WEINER: Objection, Your Honour.

16 JUDGE LIU: Yes.

17 MR. WEINER: Very leading.

18 JUDGE LIU: That's a very leading question.

19 MR. MORRISSEY: Your Honour, it's -- well, if Your Honour thinks

20 it is, I'll deal with it another way.

21 Q. Was the topic of an operations group raised by any person in the

22 context of those combat operations in September of 1993?

23 A. At the time, there was no operations group.

24 Q. Given what you know of an operations group, was Sefer Halilovic of

25 an appropriate level of seniority to command an operations group?

1 MR. WEINER: Objection, Your Honour.

2 MR. MORRISSEY: Well --

3 JUDGE LIU: Well, if there is an operation there must be somebody

4 who will lead that operation. You may just ask a blank question seeing

5 that -- who was leader of that operation.

6 MR. MORRISSEY: Your Honours --

7 JUDGE LIU: It depends on the answer of this witness.

8 MR. MORRISSEY: I can certainly ask him that question but the

9 Prosecution have raised an issue here which is why -- I won't make a

10 comment -- but they wish to say there was an operations group. So I'm

11 going to ask him whether there was an operations group, as a person who

12 was actually there. And Your Honour, your question is the right one. I

13 will ask that, too.

14 JUDGE LIU: I believe the witness has already answered that

15 question.

16 MR. MORRISSEY: As the court pleases.

17 Q. Very well. At the time when these combat operations were being

18 planned, did you know who was in command of the operation, if anyone?

19 A. It was an operation that didn't have a sufficient number of units,

20 and its task wasn't so big for an operative group, operations group.

21 Q. Who did you report to through the course of your involvement in

22 these combat operations?

23 A. I was implementing the direct orders much my commander,

24 Zejnilagic.

25 Q. Were you ever resubordinated to an operations group?

1 A. Later, in the course of the war, yes.

2 Q. In the course of these combat operations in September of 1993,

3 though, was your battalion ever resubordinated to an operations ...

4 A. No. It wasn't part of any operations group.

5 Q. Was the Prozor Independent Battalion resubordinated to an

6 operations group at that time?

7 A. As far as I can remember, no, it wasn't.

8 Q. And in what -- well, to whom was the Prozor Independent Battalion

9 reporting in the course of those combat operations?

10 A. Of course, under the command of the 6th Corps.

11 Q. Very well. Now, in the time that you -- in the time of

12 preparation for these combat activities, what did you see with your own

13 eyes Sefer Halilovic doing? Perhaps I could ask you this first of all:

14 How many times did you see Sefer?

15 A. Twice all together in the course of the operation. Once in Dobro

16 Polje and the second time in a place called Mackara.

17 Q. Okay. Well, I want to move now to the combat operations

18 themselves. Can you recall the precise date at which you went into action

19 for the first time on Crni Vrh?

20 A. That was the night of the 12th and the morning of the 13th of

21 September 1993.

22 Q. Okay. And pursuant to what plan did you go into action on Crni

23 Vrh?

24 A. On the basis of a plan drafted by myself and commander Zejnilagic

25 Q. Okay. Now,?

1 MR. MORRISSEY: Could the witness just have that exhibit that was

2 on the ELMO, please, returned? And I just ask that the Court staff assist

3 with that. It's Exhibit 445. Thank you, Your Honour.

4 Q. Mr. Zejnilagic [sic], I'm just going to ask you to indicate now

5 what the plan involved for your troops, and then what it involved for the

6 Independent Prozor Battalion to your left. Okay. Now, on that map, it's

7 apparent that there are three green arrows. Can you explain what those

8 three green arrows represent?

9 A. These are the axes of attack which should have been carried out

10 from the staging positions in the area of responsibility of the 2nd

11 Battalion.

12 Q. Could you just explain what the purpose of those attacks was? Why

13 did you -- why did -- why did you want your soldiers to go there?

14 A. During earlier estimates and earlier actions, we always tried to

15 capture the Crni Vrh area and the Makljen mountain pass and the Makljen

16 Blace lines, to take -- to capture the Makljen-Blace village line.

17 Q. And if you succeeded in capturing that area, what was the

18 consequences for further attacks on Prozor?

19 A. It meant a lot for the entire front in Gornji Vakuf, because it

20 would be cutting off the supply lines and the forces out in the Gornji

21 Vakuf area would be cut off completely. I think those were HVO forces.

22 And as the action continued, a large area of the Prozor territory would be

23 placed under control from this position.

24 Q. What was the Prozor Independent Battalion supposed to do on the

25 morning of the 13th when you went into action?

1 A. According to the plan, the Prozor Independent Battalion had to

2 resubordinate a part of its forces to my commander, Zejnilagic, in order

3 to carry out the task. While the rest of the units were supposed to tie

4 up the forces at their own level of defence. And thereby assist the

5 attack along the main axis.

6 Q. Can you just explain what the benefit was of the attack on Uzdol

7 by the remaining forces of the Prozor Independent Battalion, as far as the

8 operation?

9 A. It wouldn't really have any effect on the implementation of the

10 operation, because the Uzdol position was a passive one.

11 Q. And -- very well. So did Buza's forces, the Prozor Independent

12 Battalion, go into attack on Uzdol on that day, the 13th, or not?

13 A. No.

14 Q. What happened to your troops when they attacked Crni Vrh on that

15 day, the 13th?

16 A. We had a plan whereby the forces that came as reinforcements,

17 these were forces of the Sutjeska Battalion and the forces from the

18 Neretvica Battalion, they were supposed to attack first, at the highest

19 peak of Crni Vrh mountain which is called Sljeme. And as the situation

20 developed, my unit reinforced by the Prozor forces was supposed to capture

21 the Zgon area and especially the positions in the area of the village of

22 Blace.

23 Q. And what went wrong?

24 A. The first axis that actually the attack along the first axis after

25 the initial success achieved, was cut off abruptly and it failed because

1 one of the commanders of the Neretvica Battalion was killed.

2 Q. What was the name of that commander who was killed?

3 A. That was Commander Padalovic.

4 Q. And perhaps to come to the conclusion of that day, at the end of

5 the day, did you hold any extra territory or were you back where you

6 started?

7 A. No. We were stopped by the HVO forces and were forced to withdraw

8 to our starting positions.

9 Q. At the end of the day, did the soldiers have any attitude or did

10 any of you in fact have any attitude to the Independent Prozor battalion's

11 failure to go into combat that day?

12 A. The fighters were disappointed when they heard that the commander

13 was killed, Commander Padalovic, and then there were some rumours also

14 relating to the Prozor Independent Battalion and their activities.

15 Q. And what were those rumours?

16 A. Someone said that the soldiers were playing soccer in Dobro

17 Polje.

18 Q. Let's move to the 14th, the following day. To your information,

19 did the Prozor Independent Battalion then go into battle the following

20 day?

21 A. After the failure of the first day, a brief analysis was carried

22 out, and some actions were expected on the left flank, on the left side of

23 the Prozor Battalion, which would then encourage my soldiers and the

24 soldiers from the reinforcement to continue attacks along our axis.

25 Q. Okay. And what did the Prozor Independent Battalion do? Did they

1 go into that attack? And how did they go?

2 A. There were some actions but we didn't know what they were doing.

3 Q. All right. And on the 14th -- well, perhaps I won't ask you about

4 the 14th. Did you hear the results of whether the Prozor Independent

5 Battalion succeeded in their attacks? I understand you say not in

6 specifics. But did you hear generally speaking whether they succeeded or

7 failed?

8 A. Their success or, rather, our success did not depend on their

9 success.

10 Q. Yes.

11 A. We, the next day, again did not succeed in our task. Later, we

12 heard briefly that the soldiers from the Prozor Independent Battalion went

13 into a minefield and that's how they got killed.

14 Q. Okay. Very well. Now I'd like to show you an order.

15 MR. MORRISSEY: Could the witness please be shown Exhibit 150?

16 It's the Zejnilagic order.

17 Q. Now, this document is about to be brought up on the computer

18 screen here and I just ask you to have a look at it when it comes up. All

19 right. Do you have that document? Do you have on your screen there a

20 document headed "order to attack" and dated 15th of September 1993?

21 A. Yes.

22 Q. Now, just to be -- just to complete some formalities first of all,

23 do you recognise this order?

24 A. Yes. I participated in the drafting of this order.

25 Q. Okay. Well, I'll ask you how that was done in just a moment.

1 Could I just ask you to have a look, please, at point number 4 on the

2 order. Is that -- does that appear on your screen? Your Honours, for the

3 English it will have to be turned over to the following page.

4 Mr. Behlo, is point 4 visible to you there or not?

5 A. Yes, I see it.

6 Q. Okay. Do you see there that there is a reference to combat

7 activities on the 16th of September?

8 A. Yes.

9 Q. Could I ask you to please have a look at point number 9?

10 MR. MORRISSEY: I think in the English, Your Honours, it will have

11 to be turned over to the next page. And Bosnian, too.

12 Q. Okay. Do you see there the date of the 15th of September and the

13 section that says "in the course of 15 September 1993 all units shall send

14 IP reconnaissance patrols and OG reconnaissance groups to reconnoiter the

15 axis of attack against the enemy." Do you see that part?

16 A. Yes, I see it.

17 Q. Okay. Thank you. Okay, well, now, perhaps, just in your own

18 words can you explain what happened? Why was that order drafted and what

19 part did you play in drafting it?

20 A. Well, since we failed to carry out our order during the first two

21 days of the operation, we failed to take control of the Crni Vrh feature,

22 we had to change and amend our initial plan. And this was done by virtue

23 of this order.

24 Q. Okay. Would you just --

25 MR. MORRISSEY: Could the witness please be shown the start of

1 that order once again, just go back to the start of that order. So page 1

2 of both.

3 Q. Do you see in the preamble to that order, the preamble refers to

4 two orders on which you based or yourself and Zejnilagic based this order?

5 Do you see those references?

6 A. Yes, I do.

7 Q. Very well. Just before -- and those orders are identified, one of

8 them, is that correct, as an order of the NGS Chief of Staff, and the

9 other one is identified as a command of the commander of the 6th Corps

10 with an order number 01/1500-27, dated 11 September 1993? Is that

11 correct?

12 A. Yes. That's correct.

13 Q. I'm going to take you to some orders in just a moment. I just

14 want to ask you now what happened in relation to this particular order?

15 How did the combat pan out and what occurred? So it says in the order

16 that you have to conduct intelligence on the 15th and go into battle on

17 the 16th. Can you just explain to the Judges and the Prosecutor what

18 happened?

19 A. Well, after the failure on the 13th and 14th, after the failure of

20 the action, we regrouped and consolidated the units in the areas which

21 were -- where they initially had their positions. We carried out

22 additional reconnaissance on new axes of attack. This reconnaissance was

23 carried out on the 15th.

24 Q. All right. Could I just ask that the witness be shown another map

25 and I'll ask him some questions about it. I think this will be Exhibit --

1 MFI 446.

2 Q. Very well. Could you just, now, pointing on that map indicate

3 what happened on the morning of the 16th?

4 A. Having carried out the preparations on the 15th, we set off in the

5 evening with the units and went to our initial positions from which we

6 were to launch an attack, and according to the new amended order, we had

7 selected new axis of attack, which was on the village of Glibe axis and

8 further on, along the same axis, there was the village of Blace.

9 Q. Very well. Now, could you just explain a bit about that map?

10 First of all, who produced it and when?

11 A. I made this sketch yesterday.

12 Q. Thank you. And could you just indicate is that a more close-up

13 view of that combat area compared to the previous map?

14 A. Yes. It's not clear in the first map, and the lie of the ground

15 is clearer in this sketch.

16 Q. Okay. Could you just, using the pointer, point to whereabouts

17 Prozor is? I understand it's not indicated on the map but just point

18 approximately where one could find Prozor?

19 A. Prozor is somewhere around here, behind this hill, and in the

20 direction of the village of Blace or rather behind the village of

21 Blace.

22 Q. Very well. Well, just -- I'll just lead on something here. If

23 the Prosecutor wants to object they can. Was the plan to go up behind the

24 village of Blace on this occasion and attempt to conquer it from a

25 different direction?

1 A. Yes. That's correct.

2 Q. So just tell the Judges what happened.

3 A. Our forces remained on the Zgon-Blace axis but they were on a

4 secondary axis and the focus of the attack was to be on the Rac-Glibe

5 axis. I personally led a unit which was on this axis but when we entered

6 the initial area from which the attack was to be launched, we ran into an

7 HVO reconnaissance group which had approached us from behind. There was a

8 brief clash, and when we decided to follow them we entered a mine field

9 located right in front of the village of Glibe in this densely forested

10 area.

11 Q. Okay. Well, I offer that -- sorry, perhaps I should just ask

12 finally, was there any more offensive combat operations after that time in

13 that sector?

14 A. I informed my commander, commander Zejnilagic, that we weren't in

15 a position to continue carrying out the task in spite of having made

16 several attempts.

17 Q. Very well. After that time, did you see Sefer Halilovic in that

18 area again? And I'm talking now about a period of about six weeks.

19 A. No.

20 Q. Did you see Bilajac, Suljevic, Karic again in that time n that six

21 weeks?

22 A. No.

23 Q. Okay.

24 MR. MORRISSEY: Could the witness please be shown Exhibit number

25 124?

1 I offer that map for tender, Your Honour.

2 MR. WEINER: No objection.

3 JUDGE LIU: Thank you. It's admitted into evidence.

4 THE REGISTRAR: That will be Exhibit D446.

5 MR. MORRISSEY: What's coming up on the screen now is an order

6 signed by Sefer Halilovic dated the 15th of September 1993. Okay. Do you

7 have that order there?

8 A. Yes. I have it.

9 Q. Do you recognise that order?

10 A. Yes, I do.

11 Q. What is it?

12 A. It's an order that concerns my commander, Enver Zejnilagic.

13 Q. And we noticed earlier on that there was reference in the preamble

14 of the Zejnilagic order of the 15th of September to an order of the Chief

15 of Staff. What do you say about this order? Is this the same or

16 different?

17 A. That's the order in question.

18 Q. And do you know what lay behind the drafting of that order?

19 Perhaps I should ask you: Were you present when that order was drafted?

20 A. No. I wasn't present when this order was drafted.

21 Q. Did you know what power Sefer Halilovic had to issue an order like

22 that? Or not an order like that, perhaps I'll get more specific. Do you

23 know what power Sefer Halilovic had to issue that order?

24 MR. WEINER: Objection, Your Honour.

25 JUDGE LIU: Why?

1 MR. WEINER: There should be a foundation laid as to the basis for

2 this question.

3 JUDGE LIU: Well, we have the previous document which says very

4 clear, so I believe that is the foundation for this question. You may

5 proceed, Mr. Morrissey.

6 MR. MORRISSEY: Thank you.

7 MR. WEINER: Your Honour, that's a different question. He's now

8 asking what basis did he have, what powers did he have, if that's the

9 question.

10 JUDGE LIU: I'm not sure whether that's a different question or

11 the same question. I will let Mr. Morrissey continue for a while to see

12 whether it's a leading question or not. You may proceed.

13 MR. MORRISSEY: All right, then. Sorry about that.

14 Q. Did you know -- I just want to ask the question the same way. Did

15 you know what power Sefer Halilovic had to issue that order?

16 A. No. I didn't know what power the Chief of Staff,

17 General Halilovic, had, but I knew what sort of power my commander had.

18 Q. And do you know what was the need or the reasons behind the

19 issuing of that order of the 15th by Sefer Halilovic that you have on the

20 screen in front of you?

21 A. Since we had failed, since our operation was a failure, it was

22 essential to do something in order to carry out the task.

23 Q. Did you yourself see Sefer Halilovic on that occasion signing that

24 order?

25 A. No.

1 MR. MORRISSEY: I just wonder, there is another document,

2 Your Honour. It might take us a little bit longer so perhaps this is an

3 appropriate moment.

4 JUDGE LIU: Yes. I believe that we'll break now.

5 Well, Witness, since you are still under the oath, so I have to

6 remind you that please do not talk to anybody and do not let anybody talk

7 to you about your testimony.

8 We'll continue your testimony tomorrow morning. You understand

9 that?

10 THE WITNESS: [Interpretation] I do understand you, Your Honour.

11 JUDGE LIU: Thank you very much.

12 The hearing for today is adjourned. We'll resume tomorrow

13 morning.

14 --- Whereupon the hearing adjourned at 7.01 p.m., to

15 be reconvened on Tuesday, the 28th day of June,

16 2005, at 9.00 a.m.

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