1 Wednesday, 31 August 2005

2 [Defence Closing Statement]

3 [Open session]

4 --- Upon commencing at 9.02 a.m.

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

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

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

8 JUDGE LIU: Good morning, ladies and gentlemen. Today we'll

9 continue with the closing arguments, and this time for the Defence. And

10 before you start, Mr. Morrissey, I believe that yesterday you promised me

11 to inform us about the number of that document you are going to tender.

12 MR. MORRISSEY: Well, I will honour that promise, Your Honour, but

13 in the preparations for closing this morning we haven't uploaded it into

14 the system as yet, so we will certainly do that in the break.

15 JUDGE LIU: Yes. Thank you very much.

16 And if there's nothing else that the parties would like to raise

17 at this stage, you may proceed.

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

19 Your Honour, could I just make a couple of preliminary comments.

20 This closing address now is going to be one where I go through the broad

21 outline of our case and explain it as best we can. Of course we rely on

22 the brief that we filed. But, Your Honour, I make it clear that both

23 myself and my learned co-counsel, Mr. Mettraux, are very willing and happy

24 to be interrupted with questions if such a thing proves to be helpful to

25 the Tribunal. And we don't need, although it's a matter for you, for you

1 to wait until the end. If you have questions, I'm very happy to be

2 interrupted at the time that it appears opportune to do so, and we're keen

3 for that.

4 I'm also told by the booth or by the -- it's been relayed to me

5 that they don't have sufficient personnel to warn me to slow down, and

6 therefore I'm very happy to be warned to slow down as well.

7 Now, Your Honours, the Defence makes a submission that Sefer

8 Halilovic is not guilty of the crimes that he's charged with here. What

9 we submit is that the Prosecution failed to prove beyond reasonable doubt

10 the elements of the charge that he's facing, namely murder. They failed

11 to prove the elements of each path to liability, each path to conviction.

12 And it's important to bear in mind that the burden rests on the Prosecutor

13 and that the standard of proof is beyond reasonable doubt with respect to

14 those as the Court knows very well.

15 Your Honours, all we asked for at the start of the trial was a

16 fair trial, and a fair trial simply means a trial according to law. This

17 court dispenses justice, and it's very important in considering that that

18 it is justice, generally speaking, and not justice as my learned friend

19 Ms. Chana expressed it yesterday as justice for victims.

20 Your Honour, justice is broader than justice for victims. It

21 includes justice for victims, but it means a fair trial. And, Your

22 Honour, I make the comment now because my learned friend raised that it

23 has to be said now in response that if the Prosecution had have brought

24 here to this Tribunal Ramiz Delalic or the killers of the victims, their

25 comment would have made more -- would have been more apt. But as things

1 stand, the man that they've brought to the Tribunal should not be here.

2 He -- far from being one of the people this Tribunal was set up to deal

3 with. He's one of the people who should be encouraged and whose conduct

4 ought to be looked at as being a good model and part of the

5 reconciliation, especially in a country such as Bosnia where there is a

6 battle to get people of different ethnicity to live together and to

7 accommodate them living together.

8 Your Honours, in my submission to you the victims in this case

9 would in fact be helped and supported by an acquittal. It's a terrible

10 thing to think that at the highest level of the Bosnian army people would

11 acquiesce in crimes like this, and it is one of the burdens that victims

12 have to bear that not only where their nearest and dearest killed or badly

13 treated but that it seems to have been a policy to do that. But in this

14 case, it would comfort victims if they saw in the end and that they saw by

15 verdict of this Court of not guilty that there was a decent person who did

16 what he could in bizarre, unusual, and terrible circumstances. But, Your

17 Honours, all of that is to simply say in a long way what could be said

18 more shortly. This Court dispenses justice, and if you feel not satisfied

19 of Halilovic's guilt, you will simply acquit him. And that's what we

20 submit is the right verdict.

21 Now, Your Honours, the course I'll take in this closing address is

22 one which will go straight to the technical issues of subordination of

23 de jure command and effective control. After that I'll address the other

24 elements.

25 These issues do raise -- these issues are complex in some

1 respects, but sense can be made of them. You don't have to be frightened

2 by the evidence. The evidence here can be explained and can be dealt with

3 if it's faced and that's what we're hoping to do.

4 I would like to start, however, about a remark of character and

5 the use you can make of Halilovic's good character and the evidence of

6 that in these proceedings. Mr. Halilovic, we say, is different; he's a

7 different sort of accused in this Tribunal. He was positively against

8 division, positively against ethnic hate. In our final trial brief at

9 paragraphs 746 and following, we have set out all of the reasons why you

10 should, having considered the evidence properly, accept that he is

11 different and that he's unusual. How many times in this Tribunal could it

12 be said that five days or so before the crime the accused person made a

13 speech in public saying, We will never be a revenge army. And yet that's

14 what Halilovic did on the 3rd of September, witnessed by the Prosecution

15 witness Hodzic, and the reference to that is on the 23rd of March at pages

16 51 to 53. Hodzic described that speech as capturing Sefer's ethics of

17 war. And that is a positive factor that you can take into account in

18 assessing his mens rea, in assessing whether he has the relevant guilty

19 mind.

20 Now, in other cases, good character may be seen to have a limited

21 or confined value. Often it's said on behalf of a general, for example,

22 at this Tribunal that a general may have been a loyal servant of the

23 state, may not have committed criminal offences, and may have done all

24 they could to look after the welfare of their soldiers, often their family

25 as well. In some respects they may look like a good citizen. But

1 character is not of great value in those situations where such a person

2 has participated and deliberately done so in pursuance of an evil policy,

3 a policy of ethnic cleansing, divisiveness and death. But Halilovic is

4 different. Because he positively did everything to stop that sort of

5 thing. And it's very difficult to imagine another accused who is in that

6 position, somebody who positively acted.

7 Again, I'll make the comment. Some governments would have

8 fine-sounding phrases within their policy. For example, the Republika

9 Srpska certainly did have documents requiring its soldiers to respect the

10 laws of war and so on like that. So merely because you've got a nice

11 document in your history doesn't mean that you're a nice person or that

12 you are of good character. But the steps taken positively of Halilovic

13 put him out of that category of merely somebody who was going through the

14 motions. From the bottom level dealing with normal people as he did, as

15 reflected in Hodzic's speech, to the very top level of policy in the

16 platform of the Bosnian government, which you have in evidence, it's

17 Exhibit D396, and it's in the folders that have been provided behind tab

18 number 31. Both at the bottom level and at the top level Halilovic was

19 committed, not just in theory but in practice and in daily practice, to a

20 good vision of a united Bosnia where different ethnic groups would live

21 together as Bosnians. That wasn't just a political ideal, it was the

22 ideal he held for the army and which he encouraged in the army. Those

23 matters are directly relevant in this case.

24 Now, turning to the specific crimes with which he's charged, Your

25 Honours, there are certain elements that have to be proved beyond

1 reasonable doubt by the Prosecution. I don't propose to take you to all

2 of the elements that have to be proved concerning the crime base, and I

3 don't propose to take you to all the elements that have to be proved

4 concerning the crime of murder because time limits us on that. But I wish

5 to take you to the elements hat the Prosecution has to prove and hasn't

6 proved, we say, concerning command responsibility and concerning the other

7 matters, the knowledge of the accused that has to be proved and the

8 failures that have to be proved.

9 What the Prosecution has to prove is in our submission, the

10 following: They have to prove the de jure appointment of Mr. Halilovic

11 vis-a-vis the alleged perpetrators; that is to say, members of the

12 9th Brigade and members of the Prozor Independent Battalion. The

13 Prosecution also has to prove the effective control of Mr. Halilovic over

14 the individuals identified as perpetrators who were members of the

15 9th Brigade and individuals identified as perpetrators who were members of

16 the Independent Prozor Battalion, effective control. Further, they have

17 to prove a temporal coincidence between effective control and the

18 commission of the crimes. In Grabovica, the time at which the Prosecution

19 allege against Halilovic is approximately 11 days from the 8th of

20 September until the 19th of September. As to Uzdol, the Prosecution in

21 their indictment appear to allege the 5th of October, but that's not

22 sustained by evidence. What the Defence says is that Halilovic ceased to

23 have any contact of any meaningful kind with the Independent Prozor

24 Battalion on the 15th of September because there's no record of him having

25 any presence in the area after that time. But other matters that place a

1 limit on that time is a cease-fire on the 16th of September and as a

2 matter of finality the ending of the inspection team when it reported on

3 the 20th of September. Those seem to be the possible time periods that

4 are open on the evidence.

5 The next element the Prosecution has to prove is knowledge or

6 notice that the crimes charged, in this case murders, have been committed

7 or are about to be committed. The Prosecution also has to prove knowledge

8 or notice on his part of the intent of the perpetrators. And at a minimum

9 the Prosecution have to prove against Halilovic that he must have known of

10 the substantial likelihood of crimes having been committed or being about

11 to be committed. And I stress, and I interplay this, Your Honours, that

12 it's not just a question of the substantial likelihood of those crimes,

13 but there is the temporal connection. Those crimes have to be about to be

14 committed. There is a sense of immediacy about that. And finally, of

15 course, it has to be proved -- the knowledge has to be proved that the

16 victims were civilians and that they were killed deliberately and the

17 knowledge that they did not take part in hostilities.

18 Once the relevant knowledge or notice has been established, the

19 Prosecution have to prove voluntary and deliberate failure amounting to

20 acquiescence of the crimes. They have to prove a failure to carry out his

21 duties, which he had a legal duty to carry out and which he had the

22 material ability to adopt. They have to prove the failure is gross. They

23 have to prove also, the Defence says, that the failure was causal to the

24 commission of the crime and that the failure entailed individual criminal

25 responsibility under customary international law.

1 Now, Your Honours, in that reason -- and I should stress this,

2 too. Mr. Mettraux is going to be speaking in possibly two hours time from

3 now, and he will give -- add more detail what I've put there, and I've put

4 that by way of a summary at the start.

5 Now, I wish to go now to the issue of de jure command power of

6 Halilovic. De jure command power of course does not foreclose the whole

7 question of effective control, but in this case we say the Prosecution

8 pleaded a de jure case and in any event it's a matter of significance

9 which has to be analysed. Now, at the outset the Defence says this:

10 Halilovic did not have command power by virtual of his office. The

11 Prosecution have conceded and they had to concede that Halilovic as Chief

12 of Staff did not enjoy that power. Therefore, when you look at

13 Exhibit D143, you will see the structure of the ABiH, and you will see

14 that corps commanders answered directly to the commander of the army, as

15 you would expect, Rasim Delic. The staffs do not command, and the law on

16 that is clear. The facts on that are clear. Although Commander Gusic did

17 seem to suggest that Halilovic by virtue of being number two man in the

18 army could issue orders, that's not borne out by evidence or by doctrine

19 nor is it the Prosecution case, and therefore you should disregard that.

20 Your Honours, a Chief of Staff can issue orders if specifically

21 authorised to do so. And there are clear examples of Halilovic doing just

22 that. Exhibit number P161 is an order by Halilovic and it's an important

23 order in the case. It's behind tab 13. Do Your Honours have those books?

24 The Defence has prepared folders of some documents to which we shall

25 refer. Those documents will also come up on the screen in e-court, but

1 some of these documents are going to be referred to from time to time and

2 it may assist if we look at that one -- just a moment. We have a problem.

3 Behind tab 13 is the order by Halilovic, Exhibit 161. Now, that

4 order is an order to Karavelic. And when you look at it, you'll see it's

5 signed "Chief of Staff." The comment it has the words "deputy commander"

6 written in there, but we know because of the doctrinal use of the

7 term "zastupa" that that was not signed in his capacity as deputy

8 commander and it's not suggested otherwise by the Prosecution.

9 So looking at that order there, you can see it's an order which

10 appears to be a command. It says "order" and it directs Karavelic to do

11 certain things by way of releasing troops. Now, it's an important order,

12 but the focus at the moment is on what -- how Mr. Karavelic responded to

13 it. Karavelic receiving that order did not obey it straight away. He

14 went and checked that order with Commander Delic. And he did that because

15 Halilovic was Chief of Staff. Halilovic could only issue such an order if

16 specifically authorised by an order from Commander Delic. Karavelic

17 questioned that order, and Commander Delic authenticated and said and told

18 him, Obey the Chief of Staff's order.

19 Now, Your Honours, therefore orders issued by Halilovic have to be

20 analysed carefully because you have to be sure that he's issuing the order

21 under his own power before you can use it to make a determination or draw

22 an inference that he's got some command power, and in that case the

23 specific evidence is he did not. Because he had had -- because the person

24 who he directed it to went and checked and felt able to go and check with

25 Delic, nor did Delic say to Vahid Karavelic, You don't have to ask me,

1 just obey the order. Instead he gave him the direction.

2 Your Honours, Halilovic was specifically limited in his powers. I

3 won't take you to Exhibit D143, but the evidence about it was clear that

4 he had unusually limited powers as Chief of Staff. And I'll get a little

5 bit later on to what we say was an official campaign to undermine

6 Halilovic's power at the time.

7 Your Honours have in evidence - I haven't put this in the book -

8 Exhibit D244, which is that transcript between President Izetbegovic and

9 the president at the time of Croatia, Mr. Tudjman, where after Halilovic

10 was demoted President Izetbegovic said to Tudjman, Look -- he -- we've set

11 out the whole quote in our brief, of course, but he said, He will not be

12 able to do anything.

13 Now, Your Honours, there's a couple of other short points to make

14 about the Chief of Staff and the powers that Halilovic had by his office.

15 He was, by virtue of D143, a deputy commander of the Bosnian army. But

16 the Prosecutors have explicitly agreed that he didn't exercise any de jure

17 power as a result of that appointment and that's obviously correct, so I

18 don't need to take that any further.

19 The Prosecution did at one stage raise the issue of Halilovic

20 being the most senior person in the area. We've dealt with that in the

21 pre-trial -- in the brief as well, but I ask you to consider Exhibit P106

22 and point 16 of that which indicates that this doctrine of the most senior

23 commander present is an emergency, unusual doctrine, and it hasn't been

24 proved to be a power under which Halilovic operated during these -- on

25 these occasions.

1 Your Honour, that ends, if you like, the formal -- the powers that

2 Halilovic had by his position. So what that means is: The Prosecution

3 had to prove an appointment of Halilovic, they had to prove an appointment

4 by order. He doesn't have any power by establishment or by rank, the

5 Prosecution have to prove that he had an appointment by order.

6 Your Honours, there is a section later on concerning the

7 undermining of Halilovic, but it's worth mentioning now some features.

8 It's very unlikely that either President Izetbegovic or Commander Delic

9 would appoint Halilovic to command authority. First of all, you have hat

10 transcript where Izetbegovic makes it clear that that's exactly what he

11 isn't going to do. Exhibit D437 is that document whereby the Minister of

12 the Interior, Bakir Alispahic, placed Halilovic under surveillance.

13 Could I just indicate to Your Honours, I'm going to refer to many

14 exhibits which are not in that folder. The Exhibits that are in the

15 folder are simply ones which are -- which are worth looking at at this

16 stage and which we have time to look at at this stage.

17 Exhibit D437 is discussed in the brief, of course But Halilovic

18 was placed under surveillance as -- as effectively an enemy of the state

19 at that time. The idea that he would in those circumstances be appointed

20 to a command function with troops who the gossip and the operative

21 information were saying were loyal to him in some form is an untenable

22 assertion. You would really need very strong evidence. And in that

23 regard, the tendered witness statement of the deceased Iset Mustafic is

24 quite an important document. The claims that Mustafic makes would have

25 been surprising ones in isolation. If he just said, look, there was an

1 undermining campaign without anything to corroborate, you would be

2 entitled to regard that with caution and look to see if there was

3 corroboration. But on the evidence in this case it's just overwhelmingly

4 clear that there was such a campaign. Because when you look at how

5 Halilovic was treated by the officers, one in particular we'll come to

6 later is a man called is Fikret Pravljak. It's quite clear that Halilovic

7 was being undermined.

8 However, more of that later. At the moment we turn to the

9 indictment, and paragraph 3 of the indictment the Prosecution explicitly

10 pleaded an appointment by Halilovic to command of the Operation

11 Neretva 93. They relied on three things to do so. They said at the

12 Zenica conference Halilovic was appointed; they also relied on the order

13 of the 30th of August, which is the famous order in this case, and it's

14 Exhibit D146; and there's a third document which the Prosecution say

15 constitutes evidence of Halilovic being appointed, that's the map, D131,

16 Exhibit D131.

17 Now, Your Honour, the Defence says that that evidence proved to be

18 a disaster for the Prosecutors, and it really proves the opposite of what

19 the Prosecution contend. All the Defence has to do in terms of this

20 Tribunal is to raise a reasonable doubt on that topic because it's an

21 element of the offence or an important fact in the offence that he was

22 appointed. The Prosecution would have to prove that beyond reasonable

23 doubt. So that the Defence only has to raise such a doubt, but in fact

24 what we submit is that it's not a question of doubt that the evidence is

25 absolutely overwhelming that there was no appointment.

1 When you turn to the Zenica conference, this is something that

2 been quietly dropped by the Prosecution. They no longer say what was said

3 in the indictment because the indictment makes it clear that at the Zenica

4 conference certain things happen. But unfortunately the evidence proved

5 otherwise. A witness who was hostile to Halilovic was Commander Gusic and

6 he said that no such thing happened at Zenica. Karavelic was there, he

7 said no such thing happened. The cameraman, Mr. Glavas was there, and he

8 says no such thing happened. He took a video of it and the video shows

9 that no such thing happened. And there is a transcript in evidence, which

10 is D405, and that is behind tab 32. I'm not going to ask you to go to it

11 now. It may arise later, but it's there just in case. There was no

12 appointment on that occasion. And the evidence therefore of Witness

13 Alispahic about that ought to be regarded with the gravest caution because

14 he appeared to base his conclusions about Halilovic being a commander on

15 that Zenica conference and also on a resubordination of some of his

16 troops, the Lasta unit, which you will recall, which we proved did not

17 happen by exhibits.

18 Your Honours, the Zenica conference does not provide an occasion

19 when Halilovic was appointed appointment and it's dead. In fact, it seems

20 to suggest the other thing because Halilovic did not talk at that

21 conference at all about this operation. What he talked about was

22 capturing a munitions factory at Vitez.

23 We turn to the order of the 30th of 8th and that is behind tab 6,

24 and I'll just ask that we go to that very briefly. Your Honours have a

25 very full analysis of that in our brief. The Defence went to the detail;

1 the Prosecution didn't. Why is that? Because the detail supports the

2 Defence quite clearly. Your Honours, commanders are appointed. There is

3 no dilemma about appointing commanders. We have examples of command

4 appointments at Exhibit P -- I'm not going to take you to these but I just

5 assert them. P102. Defence Exhibit 144 and also Defence Exhibit 193 are

6 examples of appointments where it is absolutely crystal clear when you

7 appointment a commander to a command. Commander Delic could have done

8 that; he had that power. He chose to make Halilovic the leader of an

9 inspection team. That choice is itself a significant thing to do. It is

10 true that inspection teams can be given quite a wide range of powers, but

11 you don't need that subtlety if you are appointing someone as a commander.

12 The appointment to an inspection team indicates quite strongly what the

13 contemplated role for Halilovic was. When you come to the terms of that

14 order you can see it supports the Defence contentions in terms. You don't

15 need to be too subtle about this.

16 I want to make the comment in advance. The Prosecution did not

17 call expert evidence about this. The Prosecution said in -- in argument

18 yesterday that the Defence was missing the big picture here, but really

19 you've got to come to grips with the evidence. If the Prosecution want to

20 call a de jure case, they should prove it. It's not a question of big

21 pictures when you're dealing with de jure appointment. It's a question of

22 law, legality, the orders. And when you look at this order, that's why

23 the Prosecution pleaded the big picture, Your Honours, because they can't

24 do anything else. If they go to the details it falls upon them.

25 If you look at the preamble, the preamble sets what the terms of

1 reference of this inspection team were. The Witness Cikotic on page 61 on

2 the 23rd of February said that the preamble was a legitimate basis to

3 interpret this order. Of course, and that stands to reason. Now, as

4 trained lawyers and professional Judges, whilst you benefit from expert

5 opinions on things, interpreting documents like this is not tremendously

6 difficult to do, and when you look at it, it keeps telling the same story.

7 At point number 2, or prong number 2, Halilovic's role is captured. He's

8 not commanding anything. He's the leader of an inspection team. At point

9 number 3 you can see that he is given a limited power to issue orders.

10 Now, that's a very real power to issue orders, and there were occasions

11 when he did issue orders under that power.

12 I'll give you an example. P124, which we'll come to later on, was

13 an order on the 15th of September where he gave an order concerning

14 reorganisation on the spot of the 317th Brigade and elements of the Prozor

15 Independent Battalion. Another example of that power, we submit, is when

16 he told Buza to go into battle in compliance with the order that Buza

17 already had from his own corps commander, something else we'll come to.

18 But it was an emergency power. And it's very important to note that

19 limited power because if he was the commander there was no need to give

20 him that power. If he had command power, he didn't need point 3 in that

21 order. You can't reconcile a general command power with point 3.

22 Point 4 signifies the end of the inspection and makes it quite

23 clear that that's an inspection team. That's important from another point

24 of view because it puts at end to any command power Halilovic is said to

25 have had under this order and that is really all the Prosecution have got

1 to go on, so that we say that this -- any liability of Halilovic of any

2 sort in this case ends on the 20th, even if you found everything else the

3 Prosecution asked you to.

4 So now coming back to point 1, you can now interpret what that

5 power of "rukovodjenje" that was given to Halilovic means. Because it

6 doesn't exist on its own; it exists in the context of the order and it's

7 to be so interpreted. The word itself has got many shades of meaning.

8 It's a general term. But what was important was the evidence of Selmo

9 Cikotic who said that a staff -- sorry, pardon me, that staffs can

10 participate in "rukovodjenje." Now, Halilovic in this order is

11 specifically identified as a Chief of Staff, so that when the Chief of

12 Staff, Sefer Halilovic, is given a power of "rukovodjenje," that does not

13 mean he's given a power of command. Because staffs do enjoy a power of

14 "rukovodjenje."

15 Your Honours, at paragraph 244 of our final brief we made it quite

16 clear of what our interpretation of that order is. The Witness Karic made

17 it clear that his interpretation of that order was that Halilovic was not

18 given command power by Delic. Jusuf Jasarevic said on the 1st of March,

19 at page 69, I don't see that Mr. Halilovic is commander of the operation.

20 Prosecution argument on that topic, in my submission, is poor because they

21 rely on the report of the inspection team later on, but no where in that

22 report do you find that inspection team saying that they commanded, nor do

23 you find the term "komandovanje" in it. Your Honours, it really was a

24 necessary shift in the Prosecution case that my learned friend Ms. Chana

25 argued. They had to argue that the de jure and the de facto case blurred

1 together and need to argue that now because the de jure case, we say, is

2 not merely beset by doubt but is absolutely proved to the contrary.

3 Turning to other documents relevant to this question, the map,

4 which is D131, is behind tab 4. Your Honours may have a look. It's only

5 the small -- reduced version, I'm sorry to say, but there you'll see it.

6 And on that map prima facie is some very important evidence from the

7 Defence point of view. In the top left-hand corner, one can see Rasim

8 Delic signing that map as commander, and in the bottom right Sefer

9 Halilovic signs it as Chief of Staff. Now, those terms are quite plain,

10 sensible terms; they mean what they say. And witnesses treated them as

11 doing so. It's quite true that that map itself doesn't rule out that

12 Halilovic could in theory be given other command powers later on; of

13 course he could. Karavelic made it quite clear that he wasn't comfortable

14 to say that just because of that map that that proves that Delic was

15 commander and Halilovic wasn't. Because it was always open to Delic to

16 give Halilovic power. The focus, however, has always got to be on this:

17 There has to be an order. Delic has to have ordered Halilovic to become a

18 commander. And if he didn't give such an order, Halilovic isn't the

19 commander.

20 And, Your Honours, because of that you have to ask the question:

21 Why isn't there any such order in evidence? And you have to ask the next

22 question that follows from it: Why isn't there a reference to any such

23 order in other orders? Sometimes an order might get lost. In archives an

24 order may not -- may be misplaced or somebody else might misplace it. You

25 just never know what might happen to a single document. But in the case

1 of an order making Halilovic commander, and I interpose this, if such an

2 order existed, the authorities in Bosnia, you might expect, would have

3 found it very quickly. Very quickly. But there's no reference to such an

4 order in other orders.

5 Look at the combat plan of Zulfikar Alispago later on, when he

6 issued an order to go into battle; it's exhibit D273. He said, I order

7 the commencement of Vrdi 93, defence of people's rights. There's not a

8 reference at all to Halilovic, to Neretva 93 or to any order appointing

9 Halilovic to any power. And what we submit is that when you look at the

10 doctrine concerning maps, which we just don't have the time to go into

11 here, but if you look at the Exhibit P106, look at points 493, 498, and

12 501, and you will see that there is sound doctrinal support for the

13 proposition that a map can constitute an order. And in this case of

14 course it was an order that was obligatory on Halilovic. Halilovic on

15 anyone's view is subordinate at all times to Delic.

16 I suppose I'll put it in very formal Defence terms. The

17 Prosecution didn't prove beyond reasonable doubt that Halilovic was

18 appointed to command. But what we're saying is that you could go further

19 than that. You could make a finding that Delic deliberately reserved

20 power to himself. It shouldn't happen in pure military terms, but that's

21 just not the way Bosnia was and that's not the way the army was.

22 There's a couple of other things that I'll deal with very quickly

23 in passing in relation to that. The Prosecution at one time alleged, and

24 it was alleged in the opening which we made clear at the time and we make

25 it clear now, it was a very compact and concise sensible opening, putting

1 the Prosecution case the best way it could be put by Ms. Chana. But in

2 that opening the operations group was mentioned. Now, it's not pleaded

3 elsewhere. It's a new arrival on the scene. The reason why it arose, you

4 might speculate, is that the Prosecution needed a structure because they

5 don't have Mr. Halilovic being appointed to command any troops or to deal

6 with any organisation over any specific time or in any specific area. And

7 hence, the Prosecution at one time flirted with this idea of the

8 operations group. However, the evidence was crushing on that point also

9 that there was no operations group. There needs to be an order to set it

10 up; there wasn't one. In our brief at paragraphs 251 to 255, that is

11 dealt with. I'll say no more about it.

12 The Prosecution relied upon the existence of an IKM in Jablanica

13 to help found an inference that Halilovic must have been appointed as a

14 commander. It doesn't have that effect, however, because there's a

15 reasonable open competing inference arising from what Mr. Karic said, a

16 Prosecution witness, who you might regard as a reasonable and sensible

17 witness who testified here despite ill health. Mr. Karic was not a

18 blame-shifter and was not a person who tried to minimise his role.

19 Mr. Karic in fact said, I am the man who billeted those troops in

20 Grabovica. He's not to be viewed, unlike Commander Gusic, as someone

21 who's trying to hide his own part in the proceedings. Quite the reverse.

22 He admitted it. So you can give his evidence some significant weight.

23 And Karic made it quite clear at that time this IKM was called an IKM

24 because we didn't know what else to call it. They could have been led

25 into that era by the fact that they did have and obviously did have some

1 limited command power. They were a hybrid, unusual, weird team. The

2 powers in the inspection team have been testified to be slightly broader

3 than the usual inspection team powers, and that's clear on the face of it

4 because it has that limited command power in point 3.

5 However, if the Prosecution wish to use the existence of an IKM as

6 a basis for an inference, then they should be compelled to demonstrate to

7 you by proper evidence - and in this case it should have been expert

8 evidence - what an IKM was in the Bosnian army in 1993. It is no use to

9 presume that IKMs mean the same thing across systems. The evidence about

10 the Bosnian army is that it was an immature army, the structures of which

11 were not sound and in short you needed to know what it meant. You needed

12 direct evidence as to what it meant. And the IKM is a blind alley in this

13 case. It could be the subject of hours of discussion. We're not

14 suggesting the Prosecution deliberately left it vague blame for

15 obfuscation. But what we're suggesting is that they didn't prove what an

16 IKM stands for and what it means. And on a doctrinal basis, there is one

17 important point to remember. An IKM is a derivative command post, and if

18 you don't have a central command post you can't have an IKM. And the

19 Defence says that the central command post in this case must have been in

20 Sarajevo. Your Honours, there's nothing less riveting than the subject of

21 IKMs and it's now finished.

22 I want to put the proposition now you could accept that Commander

23 Delic specifically and deliberately retained command power and

24 specifically and deliberately did not release such power to Halilovic. It

25 might be seen as a passive move by Delic, a denial of Sefer Halilovic's

1 powers, and it's not necessary for you to find that Delic therefore took a

2 more active role than the evidence shows in Neretva 93. The effect,

3 however, of what Delic did was to undermine Halilovic's ability to

4 effectively control the troops.

5 The signs of Delic doing this are quite clear. First of all,

6 there is no order about Operation Neretva 93. And that's a puzzling thing

7 if Halilovic was the commander, but it's not puzzling if Delic retained

8 ultimate command power over it because there doesn't need to be an order

9 appointing Delic.

10 Secondly, the map. There was evidence that a map should be

11 accompanied by a big, thick dossier consisting of orders and various

12 attachments. But no such order exists, nor was -- nor was it referred to

13 in any other documents. And the reason for that, too, is that there's no

14 need for it if Delic retained command power. There is no dilemma that

15 Delic had such power. Look at Exhibit D143. He was the commander of the

16 army with direct command to command all of the units that were involved in

17 this incident. Commander Delic was involved in combat there. We've

18 listed in the final brief at paragraphs 271 and following that Delic had

19 an involvement in previous command -- previous combat in that area.

20 Exhibit D406, I'm going to come to again that later. It is behind a tab,

21 and I'm sorry, I just haven't noted the tab here.

22 But Exhibit D406 indicates clearly that Halilovic was -- sorry,

23 that Delic was in discussions -- just excuse me, Your Honours, I'll find

24 it. It's D33. It's behind tab D33. It might be appropriate to go to

25 that now very quickly.

1 Now, here -- this was the inspection team, Zicro, Rifat, and

2 Vehbija - and you can conclude that means Suljevic, Bilajac, and Karic -

3 have written not to Halilovic but to Delic. And in the final words, the

4 second-last sentence, they say: "We do not know if the proposal that we

5 have sent to use units from Sarajevo and the 3rd Corps met with approval."

6 That's a letter to Delic. Delic obviously was involved in the selection

7 of these troops and had to be.

8 The 92 bis statement of Mr. Pejanovic made it clear that Commander

9 Delic left for Herzegovina at that time. I've already pointed out that

10 the order, Exhibit P161, that's Sefer Halilovic's order on the 2nd of

11 the 9th behind tab 13, was an order specifically backed up by Commander

12 Delic. Delic attended at Donja Jablanica, the base of Zulfikar Alispago,

13 which is where most of the main meetings seem to have taken place despite

14 the alleged importance of the IKM. And at Zuka's base on that day he

15 signed the map and wrote the word "odobravam" above it. Delic also

16 received reports from Zuka. Why was he receiving reports from Zuka if

17 Zuka was directly subordinated to Halilovic? We have direct evidence of

18 two of those. One of them is the report that Zulfikar Alispago said he

19 was going to send to Delic, and we have no reason to doubt that he did so,

20 but that's not strong evidence that he really did send it, so he just

21 expressed it intentionally --

22 THE INTERPRETER: We kindly request that the counsel slow down.

23 MR. MORRISSEY: Your Honours, I'm now going to slow down.

24 As to Zulfikar Alispago, therefore, you have evidence that he

25 regarded himself as being liable to report to Delic. And that was backed

1 up further by the infamous helicopter order, the subject of which was

2 irrelevant. It was about combat, it was a combat report, and it had a

3 focus on a helicopter. That document is Exhibit D201. You don't need to

4 look at it but you can if you need to. How can it be that Halilovic is

5 being bypassed if he's the commander? It cannot be. The 6th Corps

6 reported to Delic. Look at the investigation into Uzdol. They reported

7 directly to Delic. Look at the investigation into Uzdol. They reported

8 directly to Delic. The 4th Corps reported to Delic. Look at the

9 statements of Mr. Budakovic, Mr. Najetovic. There is no difficulty about

10 this. Those units reported. And particularly important is the 4th Corps.

11 This operation was about Mostar. That's where the 4th Corps were. How

12 can it be that Halilovic, commanding those units, did not have anything to

13 do with the 4th Corps in that time? But the answer's resolved if Delic

14 retained command power for himself. In that way, coordination between the

15 two parts of the operation is maintained.

16 Finally, we make the comment that the Prosecution withdrew

17 Commander Delic and his deputy Stjepan Siber as witnesses. Now, they are

18 entitled, as the Prosecutor, said in the exercise of their discretion to

19 withdraw whoever they wish. But they can't both have their cake and eat

20 it. They can't not call those witnesses but still ask you to draw an

21 inference in favour of those people. And Mr. Delic could have said what

22 the Prosecution inference -- the inference the Prosecution ask you to draw

23 is that Halilovic was the commander. But they weren't prepared to call

24 Delic. Now, I'm not criticising them, it's not a question of cheating at

25 all. It's not like that, but it weakens their ability to rely on an

1 inference contrary to that. Why not get him here, let him say it isn't

2 so. They don't.

3 The next thing the Prosecution rely on is orders as evidence --

4 orders as evidence of command. This is taking too long, Your Honours, and

5 I'm going to speed it up.

6 The Defence says that the orders issued by Halilovic are

7 explainable under the powers he had. We've identified the sources of

8 those powers: The order of the 30th and his power as Chief of Staff. It

9 was a power that he had under the order to issue emergency orders. The

10 instructions, the drafts that he prepared in -- at other times were as

11 Chief of Staff. They were always signed as Chief of Staff. Not once had

12 the Prosecution produced an order which is signed by Halilovic as

13 commander; there isn't one. They're all signed as Chief of Staff.

14 Of course the Prosecution in its submission - it wasn't

15 deliberately misleading of course in their final brief but it had the

16 effect of looking misleading unfortunately - suggested that Halilovic

17 issued those orders as commander of Neretva 93. And what I ask you to do

18 is to look at the orders and you'll see that he doesn't do any such thing

19 at any time.

20 Now, time forbids me to go through these matters. I'm just going

21 to move on from them. But that's the conclusion that we submit. We

22 submit to -- and finally, it's an important point -- what we submit is

23 that the Prosecution have sought to get you to draw an inference from

24 orders by other people. So that they've pointed to orders by Karavelic,

25 and the Prosecution have invited you to look at those orders by Karavelic

1 and say, well, look, Karavelic thinks that these units are going to be

2 resubordinated to Halilovic or at least that they will receive tasks or

3 orders from Halilovic.

4 There's two things to be said about that: The first is the

5 realistic one. Karavelic himself made it clear that the power Halilovic

6 had to command those orders depended on what power Delic gave him at all

7 times. Karavelic did not know what the content of that power was, of

8 course. But secondly, as a matter of form, as a matter of de jure power,

9 those orders by Karavelic, the orders to a lot of people, cannot in

10 themselves as a matter of law determine Halilovic's status. They don't

11 have that power. Delic has that power. Karavelic doesn't. No one can

12 change Halilovic's status or give him command power but Delic. And if

13 Halilovic issues an order, as he did on the 2nd of September, all that

14 means is that he was authorised to do so by Commander Delic. And it

15 doesn't allow you to draw a conclusion that he was appointed as a

16 commander, nor does it allow you to draw any conclusion as to his

17 effective control. And perhaps I just underline this. The claim that I

18 was referring to is in the Prosecution final brief at paragraph 182.

19 I want to turn to the actual relationships now which the

20 Prosecution have got to prove. First of all, the Prosecution have sought

21 to prove that Halilovic exercised effective control because he had de jure

22 power through a chain of command extending down to -- through the Zulfikar

23 unit to Ramiz Delalic's troops. I'll deal now with that line of

24 subordination.

25 There's an absence of a formal appointment; that's important. The

1 Prosecution de jure case is, we apprehend, and Mr. Re said it yesterday,

2 is that the Zulfikar unit was subordinated to Halilovic, and the 9th

3 detachment was subordinated to Zulfikar. Well, there's no order to that

4 effect. The comment I referred to by Karavelic saying that Halilovic's

5 power depended on what Delic gave him is at page 41 on the 20th of April.

6 Zulfikar Alispago was an independent agent. He was not obedient.

7 He remained a separate detachment of the Main Staff. His order, D273,

8 that's the combat order of the 11th, represents his independence. Karic

9 made it clear that Zulfikar Alispago disposed of the proposed order given

10 to him by the team and simply shredded it and drafted up his own one.

11 Your Honours, the subordination to the 4th Corps failed because

12 time is going -- I'm going slower than I thought, I'm not going to take

13 you to tab 34. If you can look at the comparison between Exhibit 120,

14 which is where Delic tried to resubordinate Zuka, and Exhibit 443 where

15 later on Delic said, I failed. I just didn't happen. You try to

16 resubordinate Zuka's unit to a corps but it just doesn't happen.

17 Your Honours, it was suggested that Ramiz Delalic, Celo, and the

18 9th Brigade were resubordinated as well, but frankly that just is not

19 proved to have happened. There's no evidence at all that the 9th Brigade

20 regarded themselves as -- or were as a matter of law resubordinated to the

21 Zulfikar unit. There was an order in evidence, it's P121, where the

22 Sarajevo units are said to be resubordinated to Zuka's unit. That wasn't

23 an order. That's a draft that is sent from Jablanica up to Mr. Halilovic.

24 It was put forward by the Prosecution as being an order by Halilovic, but

25 you know from looking at that order, as you did during the trial, that

1 that order was sent from Jablanica by the staff to Halilovic. The face of

2 the order makes it clear. It's not an order by Halilovic at all. It's

3 not signed by him, and it was sent to him in Sarajevo by the staff back at

4 the IKM.

5 All right. As to the formal line of resubordination with the

6 Independent Prozor Battalion, there is no difficulty about that

7 whatsoever. That Independent Prozor Battalion was argued by the

8 Prosecutor to be resubordinated to Halilovic. They say it was taken out

9 of the 6th Corps and placed -- and resubordinated to Halilovic. That's

10 the claim made by -- with the Witness Salko Gusic. However, the answer

11 here is very easy. Behind tab number 7 you will find Exhibit D149. And

12 Exhibit D149 tells you which order Buza was obeying when he went into

13 battle at Uzdol. It tells you it clearly. There are no difficulties

14 about this at all. He nominates an order which has got an order number

15 01/1500-27. That order is in evidence, too; it's behind tab number 10.

16 And behind tab 10 you will see an order from the 6th Corps, not an order

17 from Halilovic. Buza himself regarded himself as being bound by a

18 6th Corps order and acted in accordance with it, and fortunately we've got

19 that order in evidence. Therefore, the argument that Halilovic had the

20 Independent Prozor Battalion resubordinated to him is dead because we know

21 who Buza was resubordinated to -- who Buza was subordinated to and it was

22 his own normal commander. But the Prosecution relied on Salko Gusic to

23 say that that had happened.

24 Now, Your Honours, Gusic was a bad witness, and it's the Defence

25 policy that we won't make a comment about a witness unless we can bear it

1 out and demonstrate where it is that you should find fault with a

2 particular witness. Now, he was a witness who had a motive to tell the --

3 to shift responsibility, namely, that he doesn't want to be placed in the

4 line of command and control himself. Therefore, he told the story that

5 Halilovic had been resubordinated. However, when you look at the

6 evidence, you'll see he was right in the middle of it. First of all, the

7 order binding Buza, D152, is a 6th Corps order. Secondly, you have behind

8 tab 9 Exhibit D151 which is a letter from Kovacevic of the 44th Brigade.

9 This is a brigade where -- this is a brigade that was involved in the

10 combat, and Sevko Hodzic gives details about how one of its members was

11 killed. There, Kovacevic is writing to Gusic directly and clearly

12 indicating, I'm expecting you to come and help me like you said you would.

13 Witness J at page 12 on the 6th of July made it quite clear that

14 the Prozor Independent Battalion stayed in the line of command and control

15 of the 6th Corps. The Prosecution's argument on that topic is, in my

16 submission, finished. Of course they might rely on the two orders issued

17 by Halilovic, namely an oral order -- an order instruction to go into

18 battle in accordance with the order that he already had and also at P124.

19 But as we've said, both of those are an exercise of the emergency power

20 that Halilovic had.

21 Your Honours, I've taken too long on the topic of the de jure

22 issue, but I wanted to demonstrate two things this doing that: First of

23 all, the Prosecution didn't prove their case, and secondly the Defence, we

24 submit, positively proves the contrary. You can act on the basis that

25 Halilovic was not formally appointed as commander of anything. It's not

1 just a question of expressing a doubt. You could make the finding here

2 that Delic denied Halilovic effective power, that such power as he gave

3 him did not allow him to exercise effective control.

4 Now, Your Honours, because it's quite intense and because of time

5 management issues, I would ask that -- although it's only been one hour, I

6 would ask perhaps if we might take a short break now. Although it is

7 earlier, it will help with time management. Because I have spent more

8 time on it than I want to, I would just like, if I may, to break briefly

9 and restructure certain issues -- certain of what is to come.

10 JUDGE LIU: Well, if you believe that is feasible and practical

11 for us to have a break now, we are entirely in your hands.

12 MR. MORRISSEY: Thank you, Your Honour.

13 JUDGE LIU: But the total amount of time will remain unchanged.

14 Yes, we'll take a break and we'll resume at 10.30

15 --- Recess taken at 9.59 a.m.

16 --- On resuming at 10.31 a.m.

17 JUDGE LIU: Well, I believe that our interpreter and the court

18 reporter has done a wonderful job, but however I have to remind the

19 Defence to slow down so that to take the consideration the difficulties

20 they are facing.

21 MR. MORRISSEY: Thank you, Your Honours. I'd just indicate I'm

22 very grateful for the help we get in that regard and I'm, as always, very

23 happy to be told to slow down including by my own team.

24 Are Your Honours ready for me to continue?

25 JUDGE LIU: Yes, please.

1 MR. MORRISSEY: Your Honours, could I just indicate that that last

2 section, although it took 56 minutes and was quite lengthy as a result, is

3 important because it provide, first of all, unless the Prosecution proved

4 that Halilovic was appointed de jure, we say that's the end of the case.

5 And that's in the heart of the Prosecution's own case. That's right in

6 their own fortress, if you like. It's something that they should have

7 been able to prove easily, but because of the difficulties they didn't

8 prove it. Of course effective control is where the focus has to be. But

9 the absence of a clear order appointing Halilovic to de jure control is a

10 very important factor in assessing effective control, and that's how you

11 should treat it. Of course we maintain our pleading position that if they

12 don't prove de jure control, that's the end. But in the alternative we

13 make it clear that it's relevant in that way.

14 I wish now to go to effective control. I can indicate that this

15 segment now will be less -- will less technically intense and perhaps have

16 a more direct connection to the chronology of the case and to the evidence

17 that bears on what actually occurred in it.

18 I want to make a couple of general points about effective control

19 as it relates to Halilovic. The first point is that it was hard for

20 Halilovic to exercise effective control over anyone. I'll come to why.

21 And secondly, that effective control generally in Bosnia at that time was

22 hard to exercise, not impossible, it's not to be ruled out that people

23 could be in effective control of units, of course they could be. But it's

24 a relevant matter for you to assess.

25 Now, let's just go to the details of each point. As to

1 Halilovic's exercising effective control, it has to be borne steadily in

2 mind that he was a suspect person, according to the government. There is

3 no doubt he was under surveillance. He was demoted by Exhibit P102. He

4 was surveilled because of Exhibit 437. He was undermined according to the

5 Witness Mustafic. And Mustafic told a story concerning the commander of

6 the 4th Brigade at Hrasnica. That's the brigade that sat outside the

7 tunnel. And you'll remember that when Sefer Halilovic went with the

8 journalist Hodzic to go down to the battle zone on the evening of the 7th

9 of September and into the morning of the 8th, he went out there and he

10 couldn't manage to arrange transport for his troops because Fikret

11 Pravljak wouldn't give him the trucks. And that's detailed at length in

12 Hodzic's book, and it was given in evidence here as well.

13 Now, Karavelic, Witness Karavelic gave you some evidence about

14 Pravljak. He was a man you just couldn't get rid of, because despite

15 wanting to fire him he seemed to enjoy patronage at the highest level. He

16 couldn't be moved. Halilovic was clearly obstructed by Pravljak. And

17 then when you find that Mr. Mustafic's statement, says that Pravljak was

18 one of the people that he dealt with in terms of the undermining campaign,

19 this is the evidence from different sources coming together to show an

20 unescapable [sic] conclusion, and that is that Halilovic really was being

21 undermined.

22 That doesn't determine the question but it's important background

23 when you're assessing whether he was capable of exercising effective

24 control. You already know that he was a weak Chief of Staff, a

25 particularly weakened one. You already know that Izetbegovic transcript.

1 You know that Halilovic constantly complained during the time he was in

2 Herzegovina of obstruction, in particular with respect to Commander Gusic

3 of the 6th Corps who, Halilovic felt and thought, was avoiding him and

4 making life difficult for him deliberately. That was borne out by the

5 Witness Karic, who in his deposition which is Exhibit D44 -- sorry, P444.

6 At page 104 of that document, Karic himself supported that viewpoint that

7 Gusic was undermining and obstructing and not meeting when he was supposed

8 to meet. In the end Commander Delic had to issue an order to Gusic, grow

9 up and meet the Chief of Staff, please.

10 And, Your Honours, again, it's an ineffable thing. It's not a

11 doctrinal thing. It doesn't prove or disprove that he had effective

12 control, but it definitely weighs in the balance.

13 The situation in the Bosnian army generally is relevant. My

14 learned friend Ms. Chana, in a picturesque phrase, it was a very accurate

15 one though, when she said it was held together by spit. The truth is it

16 wasn't held together by the normal line of command and control because it

17 couldn't be enforced. In order for a normal -- I'll just take a step back

18 from that.

19 In a normal army people obey orders. If they don't obey orders

20 they are dealt with. There is a sanction, there is a punishment. It

21 could be demotion, it could be put in prison. There are more extreme

22 situations that could develop. In Bosnia that just didn't happen in those

23 days. There just wasn't the ability to do that. The command and control

24 system was immature. You've seen the evidence about how that army

25 effectively came to be an army and it was at Trebevic. It was when the

1 army finally dealt with Ramiz Delalic. That's when it became an army

2 because at that point it called to account insubordinate people. Before

3 that, Delalic got away with it without sanction.

4 The 10th Brigade effectively, we're going to submit later on, are

5 effectively irrelevant to these proceedings but it's illustrative that

6 Musan Topalovic, Caco, the commander of that brigade got away with it for

7 months, simply refusing to do anything, threatening to cook the commander

8 of the 1st Corps on a spit and generally indicating that he had no

9 intention of complying with orders and he just did it and got away with

10 it.

11 Now, you can draw a conclusion from that that there was no

12 effectively sanction. That has an impact on the ability of Halilovic to

13 exercise effective control. A lawfully sensibly appointed commander,

14 Vahid Karavelic of the 1st Corps, with respect to whom there was no doubt

15 about his ability to issue commands, could not issue commands. As he

16 said, you had to ask people nicely. Halilovic didn't have the security

17 that Karavelic had of knowing what his powers were and having a clear

18 source of authority.

19 That lack of sanctions is very important. We refer -- we refer

20 you to our Defence final brief at paragraphs 363 to 367 inclusive. The

21 Prosecution in their closing and their final brief gave you almost nothing

22 on the question of effective control and how Halilovic himself exercised

23 it and you look in vain for that. The Prosecution have listed a number of

24 incidents and episodes. They are entitled, of course, to refer to the

25 evidence and deal with it as they see fit. The reason they couldn't get

1 specific about it is because whenever you do you keep coming up against

2 the same reality: Halilovic could not command these people and expect

3 them to obey because of the military structure.

4 Your Honours, I turn to the ability of Halilovic to effectively

5 control the 9th Brigade, soldiers, who went down to Herzegovina. In

6 reality, the chain of command was broken. Even if Halilovic had have been

7 appointed, even if he wanted to issue commands, the chain of command

8 between him and the killers was broken. It was broken again and again at

9 different points. He was unable to exercise that effective control.

10 The Prosecutors argue this: There is a chain of command that goes

11 from Sefer Halilovic here as commander, through Zulfikar Alispago, through

12 Ramiz Delalic, Celo, to the killers. That's the chain that the

13 Prosecution argue. Your Honours, that's broken at numerous points. I'll

14 start with Zulfikar Alispago. I've already said something about that.

15 I'm not going to repeat everything that we said that we rely on there.

16 But you couldn't find the positive fact that Halilovic had effective

17 control over Zulfikar Alispago. It's not proved. I've indicated Zulfikar

18 was a person who refused resubordination, and I've pointed you to Exhibits

19 P120 and D443 to prove that.

20 Karavelic gave evidence on the 20th of April at pages 40 to 42 how

21 Zulfikar Alispago during the battle at Igman simply got up and went home

22 and left the battle zone. There is not an order in existence showing that

23 Halilovic is ordering to Alispago nor is there evidence of Alispago

24 obeying any order of Halilovic. Karic gave evidence of the tearing up.

25 I've given these accounts already. You know about the combat order, D273,

1 and you know about the reports by Zulfikar Alispago direct to Delic. And

2 all of those matters tell against a conclusion that Halilovic could

3 exercise or did exercise effective control over Zulfikar Alispago.

4 Now, the next person over whom effective control couldn't be

5 exercised was Ramiz Delalic, Celo. Now, this is a serious point and the

6 Prosecution seem to have no way out of this dilemma. They needed to show

7 that Delalic was an insubordinate person because they wanted to say that

8 that was part of Halilovic knowing how bad and naughty the 9th Brigade

9 were, so they pointed you to that in their brief.

10 But I would ask you to look at paragraph 94 of the Prosecution

11 final brief. Here you will find the express statement,

12 paragraph 94: "The evidence established that by September 1993 the 9th

13 Motorised Brigade and the 10th Motorised Brigade," and it sets out all

14 these good things about those brigades. I'm not going to read them all .

15 But the fourth point is this: "Largely operated outside the ABiH system

16 of command and control."

17 If you look at the last dot point in that list it says: "Attempts

18 to bring these renegade brigades back into the system of command and

19 control were unsuccessful until Operation Trebevic in October 1993."

20 Now, that's the end. They are not in effective control. They are

21 outside the line of command and control. The Prosecution did not plead or

22 undertake to prove any alternative chain. The evidence wouldn't support

23 it if they did plead that. You cannot both put a unit outside the system

24 of command and control and seek to rely on command responsibility against

25 Sefer Halilovic. It's not just a logical trick; it's the reality.

1 It's -- it was the Defence case even before these concessions were made

2 that you just couldn't control that. Now, apart from seeing it here in

3 Court the evidence was - and we're going to take you to some of it - very

4 clear about that individual, Ramiz Delalic, Celo. The Prosecution have

5 simply said what was realistic. The 9th Brigade was outside the effective

6 control of the army. That's what the Prosecutor says. "Largely operated

7 outside the ABiH system of command and control."

8 In that situation, they had to say there's some other way in which

9 effective control could be exercised, but no such pleading, no such

10 evidence.

11 Let's go through why it is, apart from the Prosecution's -- what I

12 submit is a clear concession. The Prosecution themselves referred at

13 paragraphs 116, 118, and 124 to incidents which reveal the fact that

14 Delalic simply did not obey orders unless it suited him to do so. In our

15 brief there's a lengthy treatment of this, it's in paragraph 357. We just

16 refer you to that. We don't have time to rehearse it and you don't need

17 us to rehearse it. But we've dealt with this question specifically.

18 I'll remind you of the 18th of April, that Vahid Karavelic at

19 page 158 indicated the way to get Mr. Delalic to comply was to ask him

20 nicely. He was always insubordinate. He was insubordinate before this

21 action happened in September 1993. He was insubordinate during it, and he

22 was insubordinate after it. Before it happened, the best example is that

23 insurrection of the 2nd of July. It's a minor incident. It doesn't tell

24 you that Ramiz Delalic was going to go and kill civilians or place

25 civilians in any danger. It doesn't help the Prosecution from that point

1 of view. What it shows is that he was outside the line of command and

2 control. He didn't obey.

3 When you get down to Herzegovina during the course of these

4 operations, you only have to look at how he behaved in the famous incident

5 at Zuka's flat to see whether he was prepared to obey orders or not. In

6 that incident you'll remember that on the 10th, on the evening of the 10th

7 of September, there was a meeting at Zulfikar Alispago's flat. It was

8 attended by the investigators. There was Namik Dzankovic, his helper from

9 the civilian authorities, a man named Brankovic. Also there was

10 Salihamidzic from the local police station, and -- I just can't remember

11 who else there was there but there was a couple of others. And Zulfikar

12 Alispago, I'm sorry, of course, himself. And they were discussing the

13 incidents that had happened and obviously discussing what was to be done

14 when into that meeting came bursting two people, Ramiz Delalic, Celo, and

15 a large individual named Malco. And on that occasion, the evidence was

16 simply -- well, it was unrefuted, that Ramiz Delalic said, Zuka, give me a

17 car. I'm taking the units back to Sarajevo. What are you worried about a

18 few dead Croats for? Words to that effect.

19 I point out again the anomaly of Halilovic being in the dock

20 and Ramiz Delalic being in the witness box. But for our purposed now I

21 point out that Delalic was outside the system of command and control.

22 What you have there -- and there was significant cross-examination and

23 evidence in-chief about it from the Prosecutors, was a man who was not

24 compliant with the system of command and control. He was the one giving

25 the orders, and Zulfikar Alispago was the one who was begging and pleading

1 and saying, Come on, don't be like that, and trying to persuade him it was

2 a very good thing to save the people down in Mostar.

3 Now, whatever inference you derive from that you cannot derive an

4 inference that he was complicit and complying with the system of command

5 and control. It's the complete reverse of that.

6 And after the event you turn to the Trebevic operation on the 26th

7 of October, when Ramiz Delalic, upon being lawfully dismissed, finally

8 lawfully dismissed by the president, Ramiz Delalic commenced a siege at

9 which he had 300 civilians and threatened to blow the lot of them up.

10 Ended up negotiating some form of surrender after a day of exchanges of

11 fire, all of which is the subject of evidence.

12 Another proof of Ramiz Delalic not being in this line of command

13 and control anticipates something I'll say when we get to the failure to

14 punish the crime at Grabovica is that he actively blocked that

15 investigation, and the evidence was quite clear about that. On the

16 afternoon of the 9th he met with Sead Kurt, the military policeman on the

17 iron bridge while Salihamidzic was down on the water looking for bodies,

18 and he expressed a hostility at that time towards the investigation. At

19 Zuka's flat he expressed hostility towards the investigation.

20 D226 is -- sorry, I didn't note the tab number of that. It's

21 behind tab number 17, Your Honours. Is a report from Nermin Eminovic

22 concerning the situation in the village of Grabovica at the time of that

23 report. And in that report, Eminovic refers in the last few lines of that

24 report to the prospect of revolt by the units and return to Sarajevo.

25 We'll demonstrate that later on what that all means and why that made it

1 very dangerous and difficult to go into the village and do anything there.

2 But right now it's relevant to effective control. Effective control does

3 not include a state of revolt or rebellion. That was the state Ramiz

4 Delalic was in: He obeyed when he wanted to obey. He was not under

5 anyone's effective control. Zulfikar Alispago did not have effective

6 control over Delalic. You can see that from the incident at the flat.

7 And the fact that Celo's men or some of them fought in the battle is not a

8 meaningful indicator that they were compliant. And the reason for that is

9 that you could fight in that battle under Alispago without being

10 subordinated. Look at the 2nd Independent Battalion. Exhibit D270 is

11 that chronological report. It was tendered through Witness Okovic. And

12 in that report and in evidence Okovic made it quite clear that the 2nd

13 Independent Battalion refused to be resubordinated to the Zulfikar unit,

14 simply refused.

15 Nevertheless, they still fought. And this I think is an

16 illustration of what my learned friend Ms. Chana described as an army that

17 didn't operate by the book. They operated on a basis of agreements,

18 persuading. It's not effective control in those circumstances.

19 Your Honours, I should correct something. I have to put this on

20 the record here. At page 24, line 2, I mentioned an exhibit which was an

21 order, purported order of Halilovic, which is not really an order of

22 Halilovic at all. I said it was P121. It's really P122, that document,

23 and I won't go back over it now for time reasons. But it's the order --

24 it's got Halilovic's name written under it, but in fact when you look at

25 it it's a draft and it's been written in -- or proposed, it's been written

1 in Jablanica and sent to Halilovic personally among others, up in

2 Sarajevo.

3 But you can draw this conclusion very simply: Ramiz Delalic,

4 Celo, did not obey Zulfikar Alispago, Zuka. Did not obey. That's the

5 evidence, and there's none the other way. For that reason, the

6 Prosecution felt compelled to lead evidence of a special relationship.

7 The Prosecution indicated that they called Ramiz Delalic here because

8 Sefer took him to Herzegovina. Well, the reason they really called him is

9 to try and prove some sort of special relationship between the two of

10 them.

11 Now, Your Honours, what we submit is the evidence of Ramiz Delalic

12 did not, even if you believed it, even if you accepted a word of it, and

13 I'll tell you in a minute why that should not happen, but even if you

14 believed that it did not amount to effective control, all it amounted to

15 was a preference on behalf of Ramiz Delalic for Sefer Halilovic in

16 comparison to Mr. Delic. Delalic made it quite clear in his own mind that

17 most of the brigade commanders were of the same view, or the majority of

18 brigade commanders were of the same view.

19 Now, Your Honours, the truth is that you cannot believe anything

20 said by Ramiz Delalic. It's not a question of believing one part and

21 dismissing other parts. He's a witness who should be rejected in total

22 because he's got a position to protect. And he came here to tell an

23 integrated story. His whole story was designed to protect him from

24 liability for what he plainly did wrong in Grabovica, namely, to block the

25 investigation and shield his own forces, who he must have known, some of

1 whom he must have known were involved in crimes. Delalic, in our

2 submission, is a liar, a person who was proved to be a liar. The

3 Prosecution has tacitly accepted that position because in their brief they

4 do not rely nor in oral submissions do they rely on the most outrageous

5 claim that he made. You will remember that Ramiz Delalic, Celo, came to

6 this Court and said that Halilovic and Zulfikar Alispago actively covered

7 up the crime at Grabovica and included in that theory of his was that they

8 proposed the removal and at least at one point in his evidence the killing

9 of those boys. That was his theory.

10 Now, if that's true, it's very important evidence against

11 Halilovic. But it's not true. It's obviously a load of lies, and we can

12 demonstrate that because it conflicts with just about everything else.

13 The Prosecution didn't persist with that argument. They know it's not

14 true. They're not troubling you with determining that matter, and you

15 don't have to determine it because they haven't argued it, and we have to

16 keep this matter confined to the issues between the parties. But what I'm

17 putting to you here is that the Prosecution don't hold out Ramiz Delalic

18 as a truthful person. They say he disposed of the bodies. Indictment,

19 paragraph 20, makes that explicit. The Prosecution persisted from the

20 beginning in not telling me, or you, the Tribunal, which parts of that

21 evidence they relied upon and which parts they don't rely on. They were

22 asked many times; they didn't say. Your Honours, in our submission, he is

23 not a witness who you could rely on on any view of things at all.

24 Let me just take you to a couple of quick issues about that, but

25 really, we can't distract into why Ramiz Delalic is a difficult person to

1 accept. We say that he is a criminal, a bad one; we say he is a

2 manipulator of the court processes; we say that he colluded with other

3 witnesses, notably Witness D. You might remember Witness D did say here

4 at one point that he knew that somebody was bringing a particular document

5 to give evidence later in the case, which could only have been Delalic; we

6 say he's got an association with the investigation through the

7 investigator Mikhailov where he provided and procured witnesses; we say he

8 has told revealed and clear lies about his role; his trip to Jablanica,

9 which he denies in evidence, was proved to have happened by witnesses,

10 even witnesses friendly to him. His trip to Grabovica was proved. He

11 went to Grabovica. His alibi was a very -- well, it's a matter for you to

12 decide whether it's convincing or not. He's had many changes of story

13 which were put to him in evidence. And he made a claim about Halilovic

14 and Zulfikar Alispago and Karic in the middle of the afternoon of the 9th,

15 which the Prosecution have simply disregarded, and rightly disregarded.

16 Your Honours, you can reject his claims about a special

17 relationship, and if you reject those claims there's nothing left of the

18 special relationship argument because the operative information, those

19 many featherweight documents of gossip from the security services cannot

20 be relied on for the truth of their content. They can establish the fact

21 that the security services were collecting information, but they can't

22 establish the truth of what's in them. You, as professional Judges, are

23 the best people in the world to assess the weight of those individual

24 documents, but they're all feathers. Ten of them weigh no more than one

25 of them. They'll all lightweight documents, and they don't prove the

1 truth of their contents. And nor do we expect the Prosecutor to rely on

2 them heavily, but that's a matter for the Prosecutors, of course, and

3 determinative for you.

4 Anyway, that's why we say that Ramiz Delalic, Celo, ought not be

5 believed. And that's why we say that you could not accept that he was a

6 person who was in effective control of anyone. And if you were not

7 prepared to take the step that you're invited to take by me at this

8 moment, which is to say that man was out of control and is not capable of

9 being effectively controlled, then at the very least you can build it into

10 all the other things to estimate whether or not Halilovic had effective

11 control of Ramiz Delalic. Because as well as Halilovic being a lame duck,

12 and as well as the Bosnian army not having enforcement mechanisms, Ramiz

13 Delalic was a man who simply did not comply.

14 Now, all of that adds up to this, in my submission, that Halilovic

15 was not in much of a position -- not in a position to exercise effective

16 control. The resubordination orders, if you accepted them, are just

17 orders. They don't indicate effective control; they just indicate the

18 wishes of commanders at various points. And I want to make this point

19 clear, too. My learned friend Mr. Mettraux will expand on it legally, but

20 you have to draw a distinction between effective control and influence.

21 Even if Halilovic were established to have some level of influence, even

22 if it was a strong level of influence, that is not effective control.

23 Now I'll just mention at the end of that section this: The

24 standard of proof is beyond reasonable doubt. The Prosecution have got to

25 show to beyond reasonable doubt that Halilovic was in effective control of

1 Ramiz Delalic. On the face of what I've put there, Your Honours, it

2 seems, in my -- well, I submit that it's established that he was not, but

3 at least we say that we've raised a doubt about the matter which you can

4 never get rid of.

5 Effective control of the Prozor Independent Battalion is a

6 different matter. There you have a clear situation where Halilovic does

7 not have command power and -- although the structure of orders allowed the

8 Prosecution to mount an argument as to de jure control over Ramiz Delalic,

9 the position is absolutely crystal clear with respect to the Prozor

10 Independent Battalion de jure, that battalion remained in the 6th Corps.

11 Therefore, in the absence of any evidence that Halilovic had command

12 authority over the 6th Corps and Gusic, there is a de jure block to

13 effective control. But when you combine that with the way Buza --

14 Commander Buza behaved himself towards Halilovic, it becomes clear that

15 there were grave limits on Halilovic's ability in that regard, too. Buza

16 displayed an attitude of animosity. I'm quoting here Witness J.

17 Witness J was asked questions by Your Honour Judge El Mahdi about this.

18 He indicated that Buza displayed animosity. When Your Honour asked

19 whether or not -- what effect that had on Halilovic's power and whether he

20 had clout, Witness J said: "He had no practical power at all."

21 That's uncontradicted evidence in this court.

22 JUDGE LIU: Well, I believe it's too fast.

23 MR. MORRISSEY: Yes, Your Honour. Thank you.

24 Your Honours, could I just invite you, in a slow and measured

25 tone, to regard the evidence of Witness J as persuasive, sensible,

1 considered evidence from a good person, educated, honest, and not amenable

2 to criticism. Since he's not contradicted, you can act on his evidence.

3 Since no one contradicted him.

4 One of the great things about Witness J was that he was not

5 racially prejudiced. He made it quite clear that he was grateful for the

6 help he got from his Croatian friends, and there is no basis for

7 disbelieving him. He was found by the Defence. He gave his evidence

8 here. That's the sort of evidence you need in this Court. You don't need

9 to hear Ramiz Delalic telling you lies and malicious lies. You need to

10 hear the witnesses who tell the truth.

11 Now, Your Honours, other indications about Commander Buza was that

12 he did not go into battle on the 13th when he should have gone into

13 battle. Now, the Prosecution's case is that Halilovic was the commander.

14 If Halilovic was the commander, Buza's failure to go into battle is a

15 serious indicator of whether Halilovic had effective control over him or

16 not. Buza was not sanctioned for this act. Can you imagine the situation

17 in any other army if somebody simply didn't go into battle and caused that

18 part of the operation to be seriously compromised? But the evidence is

19 that Buza was promoted; he was not sacked.

20 I just remind the Court to consider if you were satisfied that

21 Halilovic had effective control over Buza, it's a very short time period

22 that he had it because he left the area on the 15th, the inspection team

23 wound up on the 20th, there's a cease-fire which was not effective down in

24 the Vrdi area, the area where Celo's soldiers were and is not relevant to

25 that part of the proceedings, but that cease-fire may also be a convenient

1 point at which to say that Halilovic's relationship with the Prozor

2 Independent Battalion ended. So that has an impact at a later stage, if

3 you found he was in effective control as to how long he had to do anything

4 about it.

5 Your Honours, that brings to an end the effective control segment.

6 It's a matter of -- the Prosecution have to prove beyond reasonable

7 doubt. We submit for all of those reasons that they can't do so.

8 Now, Your Honours, I want to move to another topic. And we move

9 now to the knowledge and notice of the accused in relation to the crime of

10 murder and the mode of that crime being the failure to prevent the crime

11 at Grabovica. And in considering this, you need to consider how the

12 Prosecution prove its case. I've already been through the elements that

13 the Prosecution have to prove. There are two ways of proving the notice

14 of Halilovic. The Prosecution prove that he had actual knowledge, which

15 is what the indictment set out to do. Or, in theory, the Prosecution can

16 prove constructive knowledge.

17 Now, Your Honours, we have to meet three different cases on this

18 topic. We say we meet them all easily. We say, also, as an initial point

19 that we shouldn't have to meet three, we should have to meet one; but so

20 as not to be stranded and sitting on a high horse protesting about it

21 we're going to meet the cases as best we can.

22 Your Honours, the first case of the Prosecution in this regard is

23 that which is pleaded in the indictment at paragraph 15 and in the

24 pre-trial brief at paragraphs 95 to 98. This was an actual knowledge

25 case. It was said there that Halilovic really did learn of the killings

1 while they were going on, and it was said that he was in Jablanica, he was

2 told about it. And it was then said, and it was completely intellectually

3 coherent and sensible to say at the point when he got that actual

4 knowledge, there and then, he had duties. Duties arose for him at that

5 point. That's a coherent way to argue. It's a sensible way to argue.

6 Once the knowledge is proved, and at the point the knowledge is proved,

7 then, and only then, do the duties arise.

8 So once Halilovic found out about the crimes happening, he had to

9 go and take certain action. And there can be argument as to whether the

10 Prosecutor had properly pleaded the actions that he should take. But that

11 was the case. Now, that case did not materialise in evidence. The

12 Prosecution did not prove or lead any evidence that's capable of proving

13 that case. When you come to consider actual knowledge, therefore, the

14 verdict must be not guilty. It has to be, because the Prosecution -- even

15 if you believe their witnesses, drew all the bad inferences, you'll be

16 left with this: That Halilovic didn't find out until after it was

17 finished. So he didn't have actual knowledge. That's the case the

18 Prosecution pleaded and that's the one that they failed to prove. And I'm

19 not going to spend any more time on it because the Prosecution didn't seek

20 to persist with it.

21 But another case emerged that the Prosecution wished to persist

22 with, and that was a case that arose out of, what is known as, in this

23 case as being known as the Karic incident. That's the incident where it

24 is alleged by the friends of Ramiz Delalic, not by others but by them,

25 that Karic made an inappropriate comment. That's the claim made by those

1 witnesses, who we say are bad witnesses.

2 Now, the Prosecution at that time in constructing that case have

3 pleadings problems. We've referred to those in our brief. I'm not going

4 to reiterate them now. I'm going to deal with it if you allow them to

5 argue that. The Prosecution there said that Halilovic should have

6 responded. Once he heard that comment, that he then had duties and he

7 should have responded.

8 Now, it's very doubtful, Your Honours, whether the notice that

9 Halilovic had, even if that comment was true, was sufficient for 7(3)

10 liability. Because what has to be proved is that there was a substantial

11 likelihood that the crime of murder about to occur. But the Defence to

12 this charge is really much simpler than that. We just say it's not proved

13 that that happened. It's not proved -- first of all, it's not proved that

14 Karic said that. That Karic incident, we say, is a fabrication, a nasty

15 fabrication. And we say that the Prosecution have not proved beyond a

16 reasonable doubt nor have they tried to prove beyond a reasonable doubt

17 that Karic did say it. Karic himself denies saying such a thing. He

18 denies it. He was a witness of good character, not self-serving. There

19 were many reasons why he would not say such a thing. He was obviously

20 part of a coordination of combat activities. On the Prosecution's case

21 he's a part of a team that's commanding them. And his own son was there,

22 and his son is half Croatian and his son has Croatian grandparents. And

23 to cut a long story short, it takes a lot of believing that he would say

24 such a comment and he denies it. So that's a powerful matter to weigh.

25 Secondly, the people who accuse him of saying such a thing are all

1 of them friends with each other, all of them friends with Ramiz Delalic,

2 and all of them tainted by a stain of collusion which we submit you might

3 decide was proved absolutely clearly, not just because of the way their

4 stories changed but because of what happened over the course of the

5 hearings here.

6 The Prosecution led that evidence from those witnesses but no

7 other witnesses said that that happened. According to the three accusers,

8 the three friends of Celo effectively, many, many other soldiers were

9 there. All of them, in fact, were called by commanders and lined up. But

10 that's not what the other witnesses said: Sakrak, Kadic. So you would

11 expect corroboration. If that was the story, you would expect

12 corroboration. For such an outrageous comment, you would expect lots of

13 corroboration, but there's none, and those three can't corroborate each

14 other because they're colluding together. Of course they say the same

15 thing.

16 The Prosecution themselves, perfectly reasonably, recognised a

17 reasonable doubt. I'm just going to read out paragraph 102 -- sorry, 201

18 from their brief. Paragraph 201 says this: "Karic, as one would expect,

19 denies telling the soldiers that they should throw villagers in the river

20 or kill them. The Trial Chamber has heard evidence from which it could

21 make a positive finding that Karic gave the soldiers the green light to

22 harm or even kill the civilians. The Prosecution notes that Karic would

23 be very unlikely to admit making this remark, but also notes that the

24 murders were committed by members of Arnautovic and Witness D's unit, and

25 both could have been attempting to shift the blame on to Karic for what

1 occurred. The Trial Chamber does not have to make positive findings one

2 way or the other about this allegation to proceed to convict Sefer

3 Halilovic."

4 We'll deal with that last allegation a bit later on. But the

5 Prosecution in that paragraph are, in my submission, clearly conceding

6 that there is a reasonable doubt that Karic made this comment. And

7 whether you regard them as making that concession formally or not, I do

8 not mind. It's just common sense. There's a reasonable doubt that that

9 happened. The Prosecution themselves seem to recognise that, but you as

10 professional Judges would, in my submission, recognise it without any

11 trouble because Karic was a good witness.

12 I just want to point out some, if you like, characteristics of

13 this false story against Karic. We constructed in our brief at

14 paragraph 451 a chronology, and the reason why that was done at such

15 length was so that you could measure the claims of these three individuals

16 against that chronology. The chronology's constructed from the victims,

17 from Salihamidzic, from people who are reliable, sensible witnesses and --

18 anyway, it's an accountable chronology. You can look at it and see

19 whether you think it's valid or not. We urge you to follow it and make

20 findings that that chronology is right. But the uncontroversial steps in

21 it are these: The troops did arrive on the 8th of September; Karic and

22 Dzankovic did visit the troops in the afternoon on the 8th of September;

23 Pero Maric was killed that night; killings did proceed over the course of

24 that night, the 8th and 9th; the murders at Witness A's house took place

25 at some stage in the morning of the 9th; Salihamidzic and Sead Kurt, the

1 local policeman and the military policeman, went to the village around

2 3.00, maybe a little bit later, and were there for some time on the 9th;

3 the boys were kept overnight in that village by Ramiz Delalic, and on the

4 morning of the 10th they boys went and were handed over to Zulfikar

5 Alispago. And that account is borne out by the boys or by Witness A's own

6 account by the contemporaneous statement, which was Exhibit 421, tendered,

7 you'll remember they made a statement that was taken by Zulfikar's

8 soldiers. They weren't covering up. The statement was taken by

9 Zulfikar's soldiers at that time.

10 So that's the chronology. And that's uncontroversial. When you

11 measure against that what was said by these three individuals who accuse

12 Karic, they all give the same false story. Now, people can get the right

13 story the same because it's the truth, and people can make mistakes and

14 get the wrong story in a variety of different ways. But as professional

15 Judges when you see three people who are very suspicious in any event

16 telling the same wrong story, the conclusion begins to look like it could

17 be that they are colluding together. And when you then look at them and

18 see that they are all friends with Ramiz Delalic and have all had contact

19 with him since the war, that smell of collusion gets even stronger.

20 Witness D, you'll recall this matter, there was a connection it didn't

21 reflect on Witness D criminally himself, but there was a connection in an

22 indictment. The same went for Witness Mehanovic. Witness Arnautovic told

23 you that Ramiz Delalic was one of the best people you could know.

24 When it came to what happened in that hotel, you didn't have a

25 clear admission from any of them that they were colluding, but the

1 evidence just established beyond a shadow of a doubt that they were

2 discussing the case and you just shouldn't rely on their evidence. But,

3 Your Honours, we're arguing about something that's the first line of

4 defence way out there. What really the Prosecutor needed to prove was

5 that Halilovic was part of this discussion and that he heard, and for that

6 proposition there's one witness, and that's Witness D.

7 Now, the reasons you disbelieve him are as follows: Karic and

8 Dzankovic both say that Halilovic wasn't there. And whatever they might

9 say about Karic, Dzankovic is a good, sensible, honest witness called by

10 them in that capacity. No purpose to serve, no purpose to undermine him.

11 He says Halilovic wasn't there, and in my submission you might well

12 believe that and should believe it. Secondly, it seems likely that

13 Halilovic was up in the Konjic area. There's evidence from Hodzic,

14 Okovic, and Halilovic's own comments in his book which make that likely

15 and suggest that that's what happened. Thirdly, there are other people

16 who didn't see Halilovic there. Enes Sakrak gave evidence that he was

17 sitting around in the house with Pero Maric while he was still alive, and

18 there was no line-up of the kind described by these three individuals.

19 Witness D himself, we submit, that he was really quite a dreadful

20 witness. We ask you to look at paragraph 458 of the Defence brief to deal

21 with that, but just like with the three of them he's particularly bad.

22 He's got a link to Delalic. There's the collusion issue, there's the

23 motivation to protect Ramiz Delalic, he has numerous changes of story, he

24 made what is clearly a false allegation against Zulfikar Alispago. His

25 own role was a little bit sinister. The Defence cannot make wild

1 allegations based on the evidence and his denials of the proposition. I

2 am not in a position to put to you and I don't put to you now that he's

3 one of the killers. He was questioned about it. The proposition was put

4 to him. He denied it. We deal in evidence in this Court, and you can't

5 find that he was a killer. But he shares lies with the others in a

6 sinister way, and his story of not hearing things on the night of the 8th

7 is just not believable or acceptable. The Prosecution didn't believe it

8 when it came from Mr. Arnautovic, and the same logic has got to apply to

9 Witness D.

10 Your Honours should find this: The Karic incident didn't occur,

11 and it's a load of lies and it shouldn't have been led in this Court. If

12 you're left in doubt about that, you couldn't, in my submission, find that

13 Halilovic was present or that he overheard it or knew about it or had

14 anything to do with it or was put on notice by it. That case is dead and

15 finished and we invite you to so rule, if you feel that you have to rule

16 on it because it's not in the indictment.

17 So this left the Prosecution in significant trouble, but however

18 never give up. When you look at the indictment you'll see that amongst

19 the background facts the Prosecution pleaded about -- there was an actual

20 knowledge case that I've already talked about with you. The Prosecution

21 said that partially based upon his previous knowledge of the notorious

22 reputation of the 9th Brigade, I think 10th Brigade as well, Halilovic

23 upon learning of the actual killings going on was then duty-bound to act.

24 The knowledge of the reputation of the 9th Brigade and so on was in those

25 days merely a background fact, nothing more than that.

1 However, in opening this case my learned friend Ms. Chana on

2 page 31 of the indictment said -- I'm sorry, I read that wrong. The

3 transcript. The transcript of the 31st of January on page 19. My learned

4 friend Ms. Chana said: "Given that the accused had knowledge of the

5 criminal propensity of these two brigades, he was necessarily aware of the

6 likelihood that they might commit crimes in Grabovica."

7 Now, this is a new case. We say it's a recent invention of a

8 case. We say that's got pleadings implications but we've argued that in

9 the brief and we don't want to waste time in repeating that now. But

10 we'll deal with the substance of it. We say it's a recent invention by

11 the Prosecution which reveals the weakness of their case. It was

12 intellectually adept, and we don't -- it's not a question of saying the

13 Prosecution are silly or evil in some way. They're constructing a case,

14 but you're entitled to assess it coldly as Judges. We say that that

15 argument was always very inadequate in law because it ignores certain

16 needs that the Prosecution have to meet. It ignores the danger the

17 accused is supposed to be on notice of was a danger of crimes of murder.

18 It ignores that the danger has to be of a substantial likelihood. It

19 ignores that the danger had to be immediate, or to quote,"about to be

20 committed."

21 Therefore, the possibility of a crime is not enough. Substantial

22 likelihood of some other kind of a crime is not enough, and a floating

23 sense of danger that they might commit a crime one day or at some stage is

24 not enough. And this allegation of the Prosecutors is just too remote to

25 allow the notice component to be established. It ignores some basic

1 facts, and then at a later stage I'm going to say to you even apart from

2 ignoring those facts the substance of it doesn't stand up. But the basic

3 facts it ignores are: First of all, that Halilovic did not select the

4 troops himself. It's evident that there was discussion preceding the

5 choosing of those troops. D406 is behind tab 333. We don't need to go to

6 that; you already have. But that's the one that showed that the

7 inspection team was discussing with Commander Delic before Sefer Halilovic

8 even arrived in Herzegovina the provision of troops. What you know is

9 that when the troops actually did leave, present at that departure was

10 Vahid Karavelic who you might think -- the Prosecution said he was an

11 charismatic, excellent witness, and all praise to him. Well, the

12 Defence's position is a bit more moderate about him. We simply say he was

13 a good officer doing his job. But he was present when they left. So too

14 was Ramiz Delalic. An MP, Sarcirovic [phoen], the official commander of

15 the 9th Brigade was also present.

16 The order of Halilovic pursuant to which Karavelic did his job is

17 P161; it's behind tab 13. We've spent some time on that, but what I'm

18 going to say now is something about the substance of that order. Look and

19 see what Halilovic actually did. He provided a range of units from whom

20 Karavelic was to select troops. It is not accurate to say Halilovic chose

21 the troops. He didn't choose the troops. He simply provided, if you

22 like, a deck of cards for others to select the troops from.

23 The second reality that's a very important one that the current

24 Prosecution case, being constructed as it is, can't meet is this one:

25 That it wasn't Halilovic who had the role of billeting those troops. It

1 was Vehbija Karic. Now, Karic -- the Defence says Karic did everything

2 right. We're going to justify what Karic did. We don't really have to do

3 that because I'm not defending Mr. Karic; I'm defending Mr. Halilovic.

4 But we want to do that to show that the Prosecution's case is an

5 artificial one. It's an attempt to put together duties and obligations

6 and failures from a case that really fell in ruins when they found that

7 the evidence about the 8th of September was inadequate.

8 What Karic did was that he did go and inspect the scene first. He

9 spoke to the villagers. Karic's own account is that he secured the

10 agreement of villagers. Karic was an experienced officer. I interplay

11 this: That Halilovic would have been well entitled to believe that the

12 billeting of the troops was in good hands. And in fact you might come to

13 the same view. You can't allow hindsight to turn these men into monsters.

14 They at the time acted in good faith. Halilovic went to the village --

15 sorry, Karic went to the village and looked. He got agreement. He

16 decided to billet the troops there. When they were there, Karic and

17 Dzankovic went to visit them.

18 Now, the Prosecution relied on a comment made by Jusuf Jasarevic

19 that there should have been a security assessment done. Now, no format

20 for doing that was explained in court, and in the realities of the Bosnian

21 situation, my learned friend Ms. Chana said that we're not playing things

22 by the book here. But if a security assessment was needed both before and

23 after the troops arrived, it happened. It happened with senior officers

24 and the security officer of the inspection team going there to inspect,

25 and what they saw was very encouraging.

1 I'll say something about why the village was a good village to

2 select. That's in our brief, of course. But that village had a history

3 of nice, welcoming, kindly people, Bosnian citizens of Croat ethnicity who

4 were nice to the citizens. They were good to the soldiers. There was a

5 good relationship between Zulfikar Alispago and those people. Jablanica

6 was in a mess; Grabovica was peaceful. Karic made, according to what he

7 knew and the information he had, the right choice in billeting those

8 troops where he did.

9 Karic didn't deny it. Karic said in evidence that he didn't

10 believe Halilovic even knew that Grabovica was chosen as the place.

11 There's no evidence that suggests or that counters what Karic says about

12 that. You can't infer it from what Halilovic did in the days before.

13 Prosecution proved a couple of visits by Halilovic to Grabovica, but on

14 neither occasion could it be said that there was a decision taken to put

15 these troops in Grabovica. On the 1st of the 9th, when Halilovic went

16 there, he went to the left bank with Hodzic and other people, but on that

17 occasion the 9th Brigade hadn't been chosen. There was no question of

18 billeting them. On the 3rd of September Halilovic went there again, this

19 time in a car with Zulfikar with Alispago and Sevko Hodzic, but on that

20 occasion they didn't even stop at Grabovica. And the Prosecution did not

21 prove, and it's not because they're slow or silly, it's because they know

22 what the evidence is. They didn't prove that Halilovic knew that there

23 was about to be a billeting of these troops in Grabovica.

24 You see, the knowledge has got to arise at a fixed point. The

25 Prosecution's got to prove: This is the moment he realised and that's

1 when his duties arose. And that's when he should have fixed in his mind

2 that there was a substantial likelihood of crimes about to happen, crimes

3 of murder about to happen. So the Defence says that it was fatally

4 flawed, the concept of this -- of knowing about the troops being bad, even

5 if he knew they were monsters, it was never able to weep, it was never

6 able to get a conviction on what was pleaded. They had to prove that at

7 some stage Halilovic knew it was going to happen, and they didn't really

8 try to prove it, but in any event we say that they certainly didn't

9 succeed.

10 That brings me to the substance of the argument, Your Honour.

11 When I say "substance," it brings me to the Prosecution's own

12 battleground, that even if you allowed that it was possible to have this

13 sort of floating knowledge putting you on notice, the Defence says that

14 what was known to Halilovic about the 9th Brigade just was not that bad,

15 just didn't put him on notice that crimes of murder were likely or even

16 possible. The evidence proved that the 9th Brigade soldiers were mostly

17 good people. The evidence is, I'm not going to go into specifics about

18 this, there's plenty of evidence, it's in our brief, but the evidence

19 supported that it was a multi-ethnic unit. The evidence supported that it

20 was -- did not have a history of ethnic strife. The evidence supported

21 that it did not have a history of murder.

22 The Prosecution sought to blur that with what was known about the

23 10th Brigade, but the 10th Brigade didn't commit the killings. We do not

24 accept that the bad and extreme crimes alleged against the 10th Brigade

25 were known to Halilovic at all. But we ask you not to get distracted by

1 what the 10th Brigade did and what Halilovic knew about the 10th Brigade.

2 They're not the killers. And it's the killers in respect of whom the

3 duties arose, not other people.

4 The problems that the Prosecution pointed to concerning the

5 9th Brigade were, in my submission, minor matters once they were analysed

6 properly. The digging of trenches does not put anyone on notice of the

7 likelihood of murders. Trenches -- the misdemeanours or disciplinary

8 breaches constituted by taking people away to dig trenches involved an

9 organised activity for the purposes of defence of Sarajevo; it wasn't

10 criminality in the usual self-serving or rebellious nature. It was

11 directly related to the needs of saving the town. It was organised. The

12 Prosecution have claimed that they exposed people to danger. Anyone who

13 has any familiarity -- reading this brief and hearing the evidence in this

14 case, there was no safe place in Sarajevo at that time. But in any event,

15 you've heard from a person who was taken to the front line and he gave you

16 what you might think was a very philosophical and sensible approach to

17 what happened and why it was done.

18 The trench-digging, however you characterise it, we're not

19 inviting you to put a stamp on approval upon the illegal taking of people

20 away to dig trenches. We don't ask you to do that. But you shouldn't

21 make a finding that units who take people away to dig trenches are likely

22 to commit random, pointless killings of people, lovely people, old people.

23 That inference isn't open.

24 Now, the next matter that the Prosecution raised against the

25 9th Brigade was that they were collecting or there was some collection of

1 contributions from local businessmen. They colourfully described that it

2 was extortion. Perhaps it's extortion, but that doesn't tell you that

3 they're going to take murderous action against poor, old civilians. The.

4 Prosecution also relied on smuggling, but the evidence about that

5 from Karavelic was that it was just a reality. Ramiz Delalic smuggled

6 food and weapons for his units. That wasn't proved to have any criminal

7 intent at all. It was illegal use of the tunnel and gaining weapons but

8 whatever means were available to him to do. You've heard evidence about

9 that. It was one of the great problems of the Prosecution case that they

10 call Ramiz Delalic, meaning from the beginning to call him a liar at all

11 times.

12 Your Honours, they put a number of specific allegations against

13 the 9th Brigade at paragraphs 95 right through until paragraph -- well,

14 there's quite a number of paragraphs there, up to paragraph 126 covers a

15 lot of them. They list things that the 9th Brigade did wrong. Now, what

16 we'd say about those is that the criminal behaviour was minor, the

17 insubordination behaviour was serious, but the insubordination doesn't

18 tell you there's going to be killings in Grabovica or anywhere else. They

19 didn't kill people. The proof is in the pudding. The Prosecution didn't

20 prove a single murder committed by members of the 9th Brigade. And

21 sensible witnesses, such as Witness Kemal Kapur, who is a judge now, who

22 was a member of the 9th Brigade told you that most of them were okay.

23 They were good people to choose, generally speaking.

24 And what we would point out is it was a skillful rhetorical device

25 when Mr. Weiner blurred together in submissions the activities of the

1 9th Brigade and the 10th Brigade. He's just doing his job. It's my job

2 to point it out. And I do point it out that there is a difference between

3 what was known about the 9th and what was known about the 10th.

4 Your Honours, that's what the 9th Brigade actually did. The next

5 question is: What did Halilovic know about it? The Prosecution gave you

6 many operative documents. We don't have time to go through those

7 documents in detail of course, but I urge you to look at them individually

8 and see whether any of them had to be shown to Halilovic, and the answer

9 will be very few. Most of those documents are internal working documents

10 of one of the two security services, the state security services, the

11 SJB. They are the units that had Halilovic under surveillance. Because

12 from June onwards he was under surveillance. So it's very unlikely that

13 those documents were shared with Halilovic in any form.

14 Now, the Prosecution in an attempt to attribute to Halilovic

15 knowledge of the more florid activities of the 10th Brigade simply led a

16 list of meetings that Halilovic might have attended and opportunities for

17 him to hear certain information. But this matter has to be dealt with as

18 strict proof. The Prosecution did not prove that Halilovic had knowledge

19 of any murderous tendencies on the part of 9th Brigade or any of its

20 soldiers. The Prosecution proved that Halilovic must have known about the

21 trench-digging. Of course he knew about that. And although it's not

22 directly proved that he knew about any specific incidents, it's likely,

23 too, that he would have known about some illegal activities by some

24 members. It's very unlikely that he would have known about it in detail

25 or as to the specific people, who they were. He's operating at a high

1 level of generality. He was in command of the army most of the time, and

2 then after that he was the Chief of Staff. So what he had to know and

3 what he was likely to know is general information. But the Prosecution

4 did not prove that he knew about murders. And in fact they didn't prove

5 that there were any murders, but there's a throw-away reference to the

6 10th Brigade's involvement at Kazani. But we'd ask you to find

7 specifically that Halilovic didn't know about that. No one suggested that

8 he did and no one is suggesting an opportunity when he would.

9 Your Honours, therefore, the notice of Halilovic was very mild.

10 He knew the 9th Brigade was a unit that had problems of insubordination

11 and he knew that about the commander, Ramiz Delalic, but he didn't know

12 that the troops were an evil group, and the truth is they weren't. And

13 the conclusion from that is knowing what he knew about that unit, he had

14 no basis for concluding, just like everyone else had no basis for

15 concluding, that innocent, old civilians would be slaughtered by members

16 of that unit.

17 Your Honour, the measures which were appropriate for Halilovic to

18 take according to the Prosecutor are artificial. Now, you'll see they

19 invent new ones daily because after we got the Prosecution final brief, in

20 argument yesterday a new one came along. And yesterday it was said that

21 Halilovic should have provided criteria for selection of troops. Now,

22 that's not in the indictment, in the brief, it wasn't in the opening, and

23 it wasn't in their final brief. It's not realistic to suggest that

24 Halilovic order -- guessing how the ingenious minds of the Prosecutors

25 work. The Prosecutors are thinking on their feet, imaginatively

1 intelligently, trained lawyers. And they've got no idea what the duties

2 are. They make them up as they go along and they put them to the Court in

3 the construction of the case, but never did they identify at any time a

4 sensible, coherent body of obligations on Halilovic, nor did they identify

5 when those obligations arise. And it will be interesting to see, Your

6 Honours, when the time for reply comes, whether the Prosecution then seek

7 to advance a time and wait and see whether they do or they don't a time at

8 which this duty was imposed on Halilovic. They haven't done it up to now,

9 and we'll see when it is they do with an hour to go in the trial.

10 So, Your Honours, the duties that they listed, we say, are to be

11 dismissed. The first duty they suggest was at paragraph 252 and

12 following. They said: "There should have been care in the selection of

13 units."

14 Your Honours, we point out in response to that one that there has

15 to be a personal dereliction by Halilovic. Halilovic merely asked--

16 merely instructed and ordered by P161 Karavelic to send certain troops,

17 and he left the actual selection of those troops to Karavelic, who did so

18 obviously by consulting people lower down the scale. And in fact the

19 individual choice may have been -- probably was done at a much lower

20 level. Halilovic merely named the 9th as one of the sources from which

21 these troops could be taken. And you'll see there there is flexible in

22 that because Halilovic mentioned the Delta brigade in that order, but no

23 Delta Brigade soldiers went.

24 Your Honours, Karavelic himself said that he might have chosen

25 those troops himself. Your Honour Judge El Mahdi asked him on the 22nd of

1 April a question, and I just direct the Tribunal to the answers at

2 page 161 concerning that. Jusuf Jasarevic indicated that he wouldn't have

3 chosen those troops, but he also said that he would not foresee this, what

4 happened, coming. Jasarevic also agreed -- sorry, Jasarevic said that on

5 the 4th of March at page 61 and 62.

6 The Prosecution of course didn't prove that there were any other

7 troops available to take. A witness called Tirak suggested the

8 4th Brigade could, but he didn't know, and he admitted he didn't know

9 whether they were available. In any event, you now know the 4th Brigade

10 was Prevljak's brigade which was the obstructing brigade that didn't hand

11 over the trucks.

12 The next duty the Prosecution said was to warn the troops on their

13 arrival of various duties. I think -- and I don't have a proper note of

14 it, but I think the Prosecution's point was that they should be told of

15 their obligations under international law. Your Honours, they were warned

16 on departure by Karavelic as a responsible, sensible, perhaps even

17 charismatic commander. And the question -- he was asked this at -- the

18 22nd of April - and I realise I'm going fast again, Your Honours - "when

19 you spoke to these troops, I understand you may not recall the exact words

20 that you used to them but I suppose you said in words that they -- well, I

21 ask you this: In general terms, did you say in words that they could

22 understand: Boys, fight well, don't hurt the civilians, and behave

23 properly while you're down there?

24 "A. I suppose that every single word you've just uttered must

25 certainly be a part of that five-minute address on my part."

1 They were warned. They're not obliged to have the Geneva

2 Convention read out to them. It's got to be in language they understand.

3 It's got to be sensible: Don't hurt the civilians. That's what Karavelic

4 did. The Prosecution's allegation there just simply reflects that they

5 didn't re-read the brief before they thought up that obligation because it

6 was fulfilled by Karavelic.

7 Your Honours, it was then said that there should have been a

8 security assessment performed on arrival. Well, we say that Karic did

9 that himself.

10 It was then said that Halilovic failed to recognise the dangers.

11 Well, in one sense that's quite true. Everyone failed to recognise the

12 dangers. But no one's required to be clairvoyant, no one can see the

13 future, no one foresaw the dangers. The Prosecution said this is not just

14 hindsight when they referred to something said by Jasarevic that it was

15 stupid to billet them. Well, it was hindsight. It was hindsight. He was

16 here in evidence -- in court saying it was stupid. And it colours

17 everything that you know what happened afterwards. But you can't be like

18 that. You have to look at it from the standpoint of those who were

19 billeting the troops. These were good boys with a decent reputation. It

20 wasn't suggested that the bad people had been selected.

21 It was then said that there was a failure to prepare a plan for

22 the safety of villagers. Once again, we're dealing with Karic's

23 obligations here. It was Karic who had the specific duty.

24 The failure to assign military police was said to be one of these

25 duties. Well, the first military police that the Prosecutors wanted to

1 assign was the 9th Brigade. If you look at paragraph 97 of their brief,

2 it would seem that the military police in that brigade were just as bad.

3 Perhaps they were the worst. It's part of the Prosecution's case that

4 evil individuals posing as military police from the 9th Brigade were

5 committing the crimes in -- or the offences that -- the misdemeanours in

6 Sarajevo itself.

7 Then the Prosecution said that the 6th Corps military police order

8 would have been used. There was no evidence at all that such troops were

9 available on that day. There was a very misleading footnote in the

10 Prosecution's brief. It's footnote 549. It refers to the 6th Corps

11 military police, and the quote is: "Which had offered to assist Namik

12 Dzankovic in Grabovica if help was needed."

13 Because it's referring to the need to billet troops, that

14 footnote, I'd ask you to have a look at that, that footnote suggests the

15 offer already happened and Dzankovic already had in his hand the offer of

16 military police. But in fact that offer was made after the killings had

17 already happened on the 10th. So that footnote there, it must have just

18 been an accident that it came out the way it did. We'd ask you to

19 disregard that because it's post facto offer of military police.

20 There was a failure according to the Prosecutors to evacuate,

21 separate or plan or proportion -- take plans or precautions. Again, Karic

22 did what he saw as necessary. Halilovic wasn't there. Karic did what was

23 right. Failure to provide proper supervision. Well, Karic went to visit.

24 We've taken the trouble to answer step by step by step here because we

25 want to say that it's artificial. This case can never win. Even if you

1 accepted everything the Prosecution said, which we say you shouldn't, it

2 can never win.

3 The Prosecution said about Halilovic's failure to respond to the

4 supposed comments of Karic, "the Prosecution does not rely on this

5 particular failure," page 74. The fact of the matter is this, Your

6 Honour: That didn't happen. We ask you to make that finding

7 specifically. Karic's reputation has been torn to pieces by three

8 malignant liars in this court. And although you don't make findings to

9 tear his reputation to pieces for the sheer sake of it, that man at

10 significant personal cost to himself came and gave evidence, despite

11 illness.

12 I'm about to turn to the -- would you just excuse me one moment.

13 Your Honours, if it's an appropriate time to take a break, I'm

14 about to move to the failure to punish Grabovica.

15 JUDGE LIU: Well, as I said before, I'm entirely in your hands.

16 But at the same time I have to remind you that there's not so much time

17 left on your part. So during the break I really hope the Defence team

18 could streamline their presentation.

19 MR. MORRISSEY: Your Honours, could I just inquire. I have lost

20 track of time. Could I inquire of the court staff what the remaining

21 quota is -- sorry, we can do that in the break. I don't have to do that

22 live.

23 JUDGE LIU: Yes. We'll have a 30-minute break, and we will resume

24 at quarter past 12.00.

25 --- Recess taken at 11.46 a.m.

1 --- On resuming at 12.18 p.m.

2 JUDGE LIU: Well, during the break I was reminded by the Court

3 Deputy that Defence has 81 minutes left. And we could sit to quarter to

4 2.00, and we'll resume this afternoon at quarter past 3.00 for any

5 rebuttal evidence or arguments, if the parties would like to present.

6 Yes, Mr. Morrissey.

7 MR. MORRISSEY: Thank you, Your Honour. We move now to the

8 crime -- the mode of murder, failing to punish Grabovica. Your Honours,

9 it's nice to announce here that the Prosecution and Defence do not seem to

10 be in dispute in any meaningful way, that notice and - by which I mean

11 actual, real notice - of these crimes was proved by the evidence to exist

12 in the evening, late afternoon, it's not important exactly when, but on

13 the 9th of September. The evidence appears to support this, that at some

14 time after 6.00 and before 9.00, Halilovic communicated to the journalist

15 Sevko Hodzic that he had some knowledge, it's not clear what -- they were

16 unable to talk because soldiers were around. So by that time it can be

17 inferred that he knew something. It's not clear exactly what he knew.

18 Later on that evening it was clear that he was aware of killings and we

19 don't dispute what the Prosecutor said about that, that they knew enough

20 to know that it could well have been military people. He doesn't need to

21 know much more than that. And the exact degree of what he knew or

22 suspected is not proved in evidence, but we accept that he had actual

23 knowledge on the evening of the 9th of September. And he had knowledge of

24 murders. So there's no dispute about all the of that.

25 Now, Your Honours, we point out this that in terms of notice and

1 in terms of his moral capability, what he did in response we say was

2 appropriate. Halilovic's response was to express outrage to Namik

3 Dzankovic to make it clear that he morally disapproved of what happened

4 and he distanced himself from it. That's important because we say of

5 course that he did everything formally as well and I'm going to come to

6 that in a minute. But it's important that he expressed the moral outrage

7 and conveyed to a person who was his subordinate within the inspection

8 team, that's Namik Dzankovic, conveyed to him in clear terms how -- that

9 he disapproved of this. Because, of course, it is possible in theory for

10 someone to issue a mere order of some sort, I mean a routine order that

11 conveys nothing much other than its routineness. That wasn't the case

12 here. Here Halilovic put a moral emphasis on what he was asking his

13 security officer from the inspection team to do, and that's Dzankovic.

14 Your Honours, it's also apparent that apart from speaking to

15 Dzankovic as he did and dealing with him and activating the involvement of

16 Dzankovic and his organisation, the SVB, Halilovic also reported to Delic.

17 He says he did in his book, D281. No precise time is put on that, but

18 it's uncontested that he contacted Delic. The Prosecution, had they

19 wanted to contest that, had to call Commander Delic. Now, again it's

20 their choice and they don't have to. There's no cheating connected to

21 that. It's at prosecutorial discretion. But that's the choice they made

22 and as a result you've got undisputed comment by Halilovic to the effect

23 that he advised Delic.

24 After that time we say Halilovic conducted himself appropriately.

25 There is no evidence at all I apart from the outrageous claim of Ramiz

1 Delalic that Halilovic covered up the crime or did anything positively

2 evil in respect to it. And as to Ramiz Delalic, for reasons we've already

3 said, you just reject his evidence. He's a stain, frankly, on this case,

4 Ramiz Delalic. He got inside the investigation. He helped Nikolai

5 Mikhailov collecting the witnesses and what we say is he's not to be

6 believed.

7 Now, the failure to punish. I'm coming to the details of that.

8 The duration pleaded by the Prosecution for a duty on Halilovic at that

9 time ends on 19th September, pursuant to the indictment so that

10 Halilovic's time to act seems to be between his actual notice on the night

11 of the 9th and the time when he ceases to be in charge, if you make that

12 finding. Of course if you don't make that finding it's all finished, on

13 19th of September.

14 Now, the Defence says that our -- our defence to all this is a

15 very simple one, a very straightforward one, a very easy one to

16 comprehend. It is that Halilovic called in the SVB to investigate this

17 crime. The SVB is an acronym for the military security service. I'll

18 call it the SVB. We've all been calling it that throughout.

19 Now, the brief facts are that Halilovic told Dzankovic that he

20 wanted him to find out information about it and communicate to him in

21 Sarajevo about it. The context in which Mr. Halilovic did that was that

22 it was the fact that Dzankovic had already commenced to do some work.

23 He'd already sent a report to Sarajevo, a short one, not the big one

24 that's in evidence, but a short one to Sarajevo. And so that the

25 investigation was already underway.

1 Now, it's important to note this: The Prosecution made a

2 complaint that the order by Halilovic was an oral order and was vague in

3 nature. Well, it had to be an oral order because it had to be immediate.

4 He had to tell him straight away. That's what he did. Can you imagine

5 the reaction of the Prosecutors if he had a delay to write an order?

6 That would have been held against him and he would have had an obligation

7 to do an oral order. It reflects what we say is a pattern of

8 opportunistic argument-- again, the prosecutors have got a job to do, and

9 we are criticising the implications of guilt for Halilovic, it's not an

10 attack on the Prosecutors personally in the least -- but we say it means

11 that their argument ought to be regarded as weaker.

12 Your Honours, apart from it being -- the criticism of it being an

13 oral order and a vague order, the fact is there's no format set out by

14 which such communication should happen, nowhere. The Prosecutor didn't

15 point you to or use any form of words that should have been used. To

16 suggest that it's vague is a criticism by the Prosecutor in the

17 atmosphere. It's rather like calling Witness J incoherent. It's just a

18 criticism, but it's not founded in evidence anywhere.

19 But to proceed with this part of the indictment. When Dzankovic

20 spoke to Halilovic, the matter had already been reported to Sarajevo by

21 Dzankovic and therefore, pursuant to the chain of command, that had to

22 have been communicated to Rasim Delic. It had to be. Look at Exhibit

23 D143. The SVB, the military security service, reports up its own

24 professional chain, and we've already heard evidence about that. But when

25 it gets to Jusuf Jasarevic, the head, that organ reports to the commander.

1 So, Your Honours, what we say is that Halilovic did what was

2 necessary in the circumstances. And thus I'll turn to the rules, the SVB

3 rules. Now, let me just explain why it is the Defence places such store

4 on these rules. Firstly, of course, you are not here to adjudicate on

5 local Bosnian law. Secondly, although all of us in the court have now

6 achieved a working knowledge of these rules we are not seeking to give

7 some expert position about what one provision might mean. Why it matters

8 is this: These rules provide the SVB, the military security service, with

9 the full competence to do what was necessary to investigate murder. If

10 you want as a military commander to catch a murderer, you turn to the

11 experts who have got the full power to look into it and do everything that

12 is required. The SVB can activate the military police. They've got a

13 direct power under Section 7 to deal with military police and direct their

14 work in professional matters.

15 The Prosecutors also -- sorry, the -- pardon me. The SVB also

16 has the power to call in an investigating judge or a military prosecutor.

17 And I just ask you to jump forward for one second to when Dzankovic wrote

18 his proposals on the 13th. It's exactly what he did in the second point

19 of those proposals that he wrote out. He said, Send a mixed team from

20 Sarajevo including an investigative judge. The SVB had that power. In

21 other words, and I raise that because I don't want it to be said and I

22 don't want to counter any suggestion by the Prosecutors. It may be

23 overreaction by the Defence because they don't seem to have raised this

24 anymore, but I want to shut that gate. It shouldn't be said that

25 Halilovic had some free-standing obligation to go off and get military

1 prosecutors or other organs. The fact is the SVB had all that power and

2 they were the experts and knew when and how it should be done. And

3 although it may be said that Halilovic-- he may not have been a lawyer, he

4 may not have known every detail of all this, he must have expected that

5 the SVB would be competent and able to do their job. I just want to point

6 out one thing from the Rules, and this is the only point of the rules I'll

7 go to. At paragraph 40, it provides the basis upon which the SVB involves

8 itself -- on what basis the SVB involves itself in an investigation. At

9 para 40, it says: "When there is reasonable suspicion that a criminal

10 offence, triable by military courts"-- I'm at paragraph 40, I'm sorry,

11 Your Honours -- "has been committed, officers of the military security

12 service must take the necessary measure to find the perpetrator." That

13 tells you that the obligation of the SVB is a free-standing one. They've

14 got that obligation whether or not the commander tells them. They have

15 that obligation. That doesn't absolve a commander of the obligation to

16 tell them, that's quite a different question. It's not disputed by the

17 Defence either; a commander does have the obligation to do what's

18 necessary to make sure that they're on notice. That obligation doesn't

19 arise from the SVB rules but it seems to have been a practice. It's not

20 sourced in a rule but Karavelic says it's there and everyone seems to have

21 acted in accordance with it.

22 But what's important is there's no form of words that has to be

23 used. It's really a question of putting the SVB -- what a commander has

24 got to do is put the SVB in a reasonable position, where it's got

25 reasonable suspicion, where it's empowered to act. And on no view of

1 things could Halilovic have done any less than that. What he did was

2 enough to activate the SVB. What he told Dzankovic was, plainly, enough.

3 It was plainly aimed at doing that, and it plainly did do that.

4 Therefore Halilovic started the ball rolling in his own mind. He

5 did everything he had to do. He told the SVB to investigate and that's

6 what they did. Now, Your Honours, these rules should have been in

7 evidence from the beginning and we do make a criticism of the Prosecution

8 here because they put in evidence instead the military discipline rules

9 that have got absolutely nothing to do with this. You don't investigate

10 these crimes by using the military discipline powers. Those are powers

11 that apt to preserve discipline within a unit involving tiny remedies and

12 discretionary application of those rules. And we've got a section there,

13 but I'm not going to say anything more about it. We do make the point that

14 this was obviously something that was central and while it wasn't a part

15 of the Prosecution case -- well, we don't know why it wasn't but obviously

16 it should have been because this was the crunch. If there's supposed to

17 be a failure to punish, this issue had to be dealt with, and the

18 Prosecution case just simply sidestepped and referred to a body of rules

19 that had nothing to do with the case at all and had the function of

20 obscuring the jobs that Your Honours have to do.

21 Very well, that is all you need to hear from me on the topic of

22 the extent of those rules there. But I do draw your attention to Exhibit

23 D464 which is the agreed facts between the parties concerning the effect

24 of these rules and also to the Defence brief --

25 THE INTERPRETER: Could the counsel please slow down.

1 MR. MORRISSEY: Yes, I've been asked to slow down. The Defence

2 brief, 624 to 626 inclusive. The Prosecution -- sorry, the SVB had the

3 power to take necessary measures. And that's enough. That's the --

4 that's the powers they need. Take necessary measures. And that's what

5 they did.

6 My learned friend Mr. Mettraux, when he comes to the legal part

7 that will be with us in about 30 minutes, perhaps a little over that, is

8 going to take you to some quotes concerning that and how a commander

9 should deal with it in a general sense.

10 But I ask you to regard the SVB rules not as some sort of legal

11 trick behind which commanders shelter but as an enabling piece of

12 legislation, as something that permits the investigation. It must be

13 remembered the chaos that beset the Bosnian army. Imposing these rules,

14 bringing these rules in -- and the evidence is that Halilovic had a major

15 role in introducing these rules. Bringing these rules in was a positive

16 step forward for disciplining the army and for human rights generally. It

17 allowed commanders to do what they're supposed to do. Without that you

18 would have a situation that commanders had international obligations of

19 various sorts with no ability whatsoever to carry them out, none.

20 And this system had to be supported. There's a positive rule of

21 law needed for commanders to go through the channels. You can't have

22 Ramiz Delalic putting a gun to his soldiers' head and saying confess or

23 I'll shoot you. Line up -- that's if he really did that. There's a

24 question whether that was a bona fide line-up. But that sort of justice

25 isn't just -- you've got to go through the right channels. And the

1 Prosecution can't urge that an accused man has failed to do what he should

2 do just because he stuck to the official channels. He should stick to the

3 official channels.

4 So Halilovic was entitled -- the effect of all that was the SVB

5 would investigate the crime. Halilovic was entitled to trust them. The

6 SVB didn't consist of Namik Dzankovic alone. The Prosecution made an

7 attack on Namik Dzankovic. The Defence is not here to defend Dzankovic

8 but we want to make this comment: He was okay. He did his best. He did

9 what he could. There was a bit of criticism, post facto criticism by Jusuf

10 Jasarevic. There could be all sorts of reasons for that, but in the end

11 Jasarevic did not say that he was a person lacking integrity and he said

12 that he tried his best. What's most important about that, however, is

13 that never was Dzankovic said at the time to be incompetent. Halilovic

14 was entitled to count on Dzankovic. He was -- Dzankovic was joined to the

15 team by order of Rasim Delic on the specific recommendation of Jusuf

16 Jasarevic, the head of the service. There is no basis on which Halilovic

17 could have concluded that there was something wrong with Dzankovic, that

18 Dzankovic was going to do a bad job, that Dzankovic was somehow hopeless.

19 They didn't prove that. They made criticisms of what Dzankovic did but

20 they didn't actually point to anything specifically wrong that Halilovic

21 knew about.

22 The next issue that's important is that Halilovic made it quite

23 plain that Dzankovic's investigation ought to be in cooperation with the

24 civilian authorities. In the Defence final brief at paragraph 638 we

25 extracted a part of a conversation between Halilovic and Dzankovic when

1 Dzankovic explained some of the things he had already done and

2 Dzankovic's's help that he gave and Halilovic said: "Great. Then you can

3 continue to work together." Specific instructions. That common sharing

4 of the tasks is a theme.

5 Now, later on you might think that some of the police who gave

6 evidence were perhaps-- I'm inclined to say that they didn't play much of

7 a part, didn't have orders to do so. But the record at the time speaks

8 for itself and the evidence of Dzankovic is also very decisive on this

9 topic: That they worked together. And Halilovic was heavily committed

10 wherever he was. But what Jasarevic does in D221 and D235 is he gives

11 tasks to the security service of the 1st Corps and he explained that in

12 evidence. In our brief we've set this out, as we just don't have time,

13 it's a wonderful thing to read out, but it's long and I'm not going to.

14 But in the brief we've revealed a passage in cross-examination from him

15 which is important.

16 Your Honours, the Prosecution were in the position therefore, once

17 that evidence was in, that it's obvious that the investigation grew beyond

18 giving it to Dzankovic and transferred over to the 1st Corps. If the

19 Prosecution seriously wanted to contest that proposition which arises not

20 by implication but by the direct evidence of Jasarevic, direct evidence,

21 if they wanted to contest that, they shouldn't have withdrawn the chief of

22 security of the 1st Corps, Sacir Arnautovic. If they seriously wanted to

23 contest that inference, why are they taking away the only person who can

24 say? The answer to that question is this: There's unopposed evidence

25 that the 1st Corps did pursue the investigation. We don't know to what

1 extent because they withdrew the witness. But Sacir Arnautovic existed

2 because he's the signature on some of that operative information that

3 you've got.

4 And again we note this: The Prosecutor can withdraw who they

5 wish. They've not prosecutorial discretion, but let them say you that

6 they are somehow ministers of justice. They're an adversarial party here,

7 and they're giving you the picture they want you to have, which they're

8 entitled to do in an adversarial system. But when they invite you to draw

9 an inference, you have to consider whether you're being given the full

10 picture or whether you are being given an adversarial picture. You have

11 to consider that, and here is an example of exactly why you would not draw

12 the inference they ask you. In any event, we say the inference is

13 crushing.

14 Very well. It's also the fact that Jasarevic says on the 3rd --

15 2nd of March at page 34, he says that the Operation Trebevic was speeded

16 up by the events in Grabovica.

17 Turning to Dzankovic, he did the best he could.

18 Your Honours, we're definitely going to hurry up now. Dzankovic

19 did well. He sent reports on the 9th, he reported to Karic, he received

20 instructions from Karic. Your Honours, he went to Grabovica twice.

21 Prosecution relied on him being shut out of Grabovica once, and it's true

22 you've got to consider what that means. The answer is this: He didn't

23 have his identification card, nor did he have a uniform. He had a pilot

24 uniform and no identification card. And any sinister connotation of him

25 being stopped at that checkpoint is dispelled because shortly after that

1 he did go to the village and he did get into the village and he did try to

2 speak to witnesses, one named one Samir Peco, and Mr. Solakovic, the

3 commander. And we don't know what the role of Solakovic in all of this

4 was, but we do know he was worried about civilians and trying to protect

5 them, so he's a person of good will but he would not talk. So Dzankovic

6 liaised with police, and we do not agree and we submit that you shouldn't

7 agree with the Prosecution's case that the investigation was segmented

8 Salihamidzic actually went to the village with a military policeman, Sead

9 Kurt, and we've been through those matters and they're in the brief.

10 Your Honours, I won't go to D215 in detail. You have that. It's

11 behind tab 15. But I ask you to look at the proposals made by Dzankovic.

12 They were sensible proposals. That's part of his job. Make a plan,

13 decide how we're going to deal with this matter. Read those proposals.

14 Now, Jusuf Jasarevic said they weren't practical in reality, but Dzankovic

15 then waited to see what would come with that. Jasarevic tells us what he

16 didn't get that letter dated the 13th until the 20th. Halilovic is out of

17 the picture by then. If Dzankovic showed some inaction, the Prosecutors

18 want to say that he did show some inaction in that time, if he did, he was

19 waiting until his boss told him what to do. He sent that report.

20 It's D215. He was entitled to wait.

21 The Prosecution were critical because they said that necessary and

22 reasonable measures were not taken. In the indictment they specified at

23 paragraphs 15 and 34 that there should have been immediate arrest of the

24 suspects ordered by Halilovic and an investigation ordered. Well, the

25 Defence responds to that by saying, number one, they did. Halilovic did

1 order an investigation and that disposes of that easily.

2 As to the question of ordering the immediate arrest of the

3 suspects, there are a number of big problems with that. We can go all day

4 on that topic, and I'll try to keep it as limited as I can. Number one,

5 there weren't any suspects. Mr. Re yesterday -- I'm sorry.

6 Yesterday, Your Honour, it was suggested that it would have been

7 easy to find out. But you don't just get the local plumber to go and fix

8 the local problem in Grabovica. Down there was Ramiz Delalic and his men.

9 He behaved in a threatening way. Zuka's soldier had a throat cut, and it

10 wasn't that easy to find things out. Witness D didn't admit that he was

11 right there when the shooting of Pero Maric happened until he was

12 interviewed by Ms. Chana here at the Tribunal, having made many statements

13 before, lying ones. He said he had an order from the Court not to tell

14 anyone. But when the Prosecutor says it's easy to find out, that's just a

15 comment in thin atmosphere, it's not the truth.

16 In the pre-trial brief other duties were alleged. We say it was

17 not sensible, necessary, or reasonable to enter the village by force.

18 Now, a number of complaints can be covered by that. We say, first of all,

19 it's not proved that the police had the resources. Two platoons of local

20 military police do not add up to sufficient force to take on Ramiz

21 Delalic, Celo, and his heavily armed troop of Sarajevo soldiers. The

22 Prosecution did not seek to lead that it was possible. And, Your Honours,

23 there is a number of real difficulties with taking a forcible action. And

24 I'll list them now, since the Prosecution here would wish to say that they

25 had an interest in the well-being of civilians. There was civilians

1 living on the other side of that river, and a battle in Grabovica on the

2 right bank does not confine to the right bank when the bullets are

3 flying. There was a genuine danger if anyone tried to have a fight in

4 Grabovica that the civilians living on the other side would be in danger,

5 nor is it possible to say they could go anywhere else. The whole point

6 was: There wasn't anywhere to go, everywhere was full. If you tried to

7 force your way into the village, you endangered civilians, you endangered

8 the troops, you endangered the operation, you endangered the morale of the

9 army, you caused the danger of escalation, you endangered the relief of

10 Mostar. We ask Your Honours to look at D276 which is behind tab 17. Have

11 a look at that. That's the danger that was facing the troops, anyone who

12 wanted to go into the village. There was a danger of revolt, there was a

13 danger of bloodshed. And it would not have helped to go into the village

14 because it hasn't been proved that there were people there who were

15 prepared to make statements. Indeed, when Dzankovic got in, even men of

16 the 2nd Independent Battalion didn't want to make statements. If there

17 was a battle it would wreck the crime scene. In any event, the idea - and

18 we've made this point in the brief - the idea of crime scene experts

19 inspecting busily away with their equipment while Ramiz Delalic, Malco,

20 and others fought with the local Jablanica military police, assuming they

21 were prepared to help, is just a ludicrous idea. It can't be right.

22 There's got to be some level of reality. And perhaps I'll put it another

23 way. That's a submission from me, it's my comment, and it's not much use

24 to you. There's got to be evidence that that was possible before you

25 could say that that was a failure. It's got to be given some reality.

1 And what we'd say in legal terms is it wasn't necessary or reasonable,

2 that alleged measure.

3 The status report is another thing that Halilovic is supposed to

4 have called for. That's a new concept, the status report, it's not in

5 international humanitarian law. It's not in Bosnian law. It's a

6 Prosecution invention. The SVB had full power to investigate, they didn't

7 need to report back to their commander, and Karavelic made it clear, again

8 as we've stressed in our brief, that it wasn't necessary or usual to do

9 that. You could easily have a situation where a crime occurred in a unit

10 and the commander might be implicated in it. The SVB doesn't have to

11 report back to the commander and can't be required to in all

12 circumstances. As we said, D231 makes it clear that there was an

13 investigation going on at that time.

14 Your Honours, by the time Halilovic finished his work, whatever

15 that work was, in Herzegovina on the 19th or 20th of September, this

16 investigation had passed way out of local control and existed

17 contemporaneously with Dzankovic in Herzegovina, with the 1st Corps in

18 Sarajevo, and with other units. What happened to it after that is not

19 relevant, although we might be inclined to criticise Mr. Zebic's

20 characterisation of certain orders and say that Dzankovic did right and

21 did everything he could, we just refer you to our brief to deal with the

22 matters that come afterwards.

23 Therefore, we say that Halilovic did everything that was

24 reasonably open to him. We say that the Prosecution have identified

25 artificial requirements which do not have a proper source in law anywhere,

1 which were not pleaded, and which upon proper analysis are neither

2 necessary nor reasonable, and ignore the prevailing realities that Ramiz

3 Delalic was deliberately blocking this investigation with the threat of

4 violence and revolt. And if you look at D226, you will see how local --

5 how the military security service regarded that situation at the time. No

6 one at the time thought that the village should be crashed.

7 I turn, finally, to the crime at Uzdol and the allegations of the

8 Prosecutor that there was a failure to investigate this crime. Could I

9 just comment this, Your Honour, I'm not dealing with the crime scene.

10 We've said what we had to say about it in the brief. It's just too short

11 of time, and we rely on what we say in the brief.

12 Concerning with -- concerning Uzdol, as a preliminary matter, Your

13 Honours will have to consider those issues, whether there was a crime by

14 soldiers as opposed to by police. You might impose a mens rea test. It's

15 very difficult to deal with so many victims and hard to know what's a good

16 working test. You might decide when you look at those victims you can

17 rule them out if you can't be sure of the mens rea of the killing -- the

18 shooter, because at Uzdol they are all shot except for two, and it's not

19 the Defence case that they were killed by bombs.

20 In any event, I won't go into the crime scene now. Your Honours,

21 we say that there's -- in relation to Uzdol we say that there was a lack

22 of effective control, that Halilovic didn't have effective control. We

23 also say there's a grave doubt over the notice of Halilovic, both in terms

24 of the quality of the notice of Halilovic and the timing of the notice of

25 Halilovic. And finally, we say there was no failure to take any

1 reasonable or necessary measure. What we say is there was an

2 investigation at all levels. We say that no realistic step has been

3 identified which Halilovic had the duty to take and failed to take. And

4 now we go into the details of that.

5 The notice of Halilovic is flawed. The Prosecution case is

6 imprecise. They rely -- it's not their fault. The evidence is imprecise,

7 and I don't mean that as a criticism on the Prosecutor. Their allegation

8 is, based on Halilovic's own book, that he found out several days later.

9 That can't be placed in any precise framework. It may be in the time

10 frame between the 18th and 20th of September. But you couldn't find,

11 based on what Halilovic says, that it was before that time.

12 Now, we say the timing of this could well be fatal to the

13 Prosecution case on its own. It's a matter you'll have to consider. It's

14 a short point but it's an important one. If you make a finding that

15 Halilovic's effective control of those troops ended on the 15th or 16th of

16 September, then you're not in a position to say that he had any power over

17 those troops whatsoever at the time he found out, even if you found he was

18 in effective control at the time of the battle. The notice that Halilovic

19 actually had is of uncertain quality. He himself described it as illegal

20 acts, but that's a description in 1995 after there's more truth known

21 about it then there was at the time. There's no basis to doubt his

22 bona fides that he wanted Buza to be dealt with in relation to this

23 matter. But the allegations themselves were doubtful and they came from

24 doubtful sources. Radio Rama is not a trustworthy source. If you hear

25 your news from radio Rama, you are not on notice that it actually happened

1 or that there's a strong likelihood that it happened. It's just a rumour

2 if it comes from Radio Rama, probably given the viewpoint that those on

3 the Bosnian side would take, probably false, simply because it came from

4 that source. The BBC may well have broadcast, as they say, the evidence

5 is that Kate Adie broadcast in the English language, and the evidence here

6 is that Halilovic doesn't speak it. There's no evidence that Halilovic

7 condoned or acquiesced in these crimes it in the least. So that if you

8 find he was in effective control and that he didn't take enough steps, you

9 wouldn't find that he condoned or acquiesced, that he had that, if you

10 like, acquiescing state of mind that goes along with conviction here.

11 But, Your Honours, as was apparent with our case, there was an

12 investigation into this crime. And the fact that it didn't reveal

13 everything that the Prosecution now allege is not a bar to it being a full

14 and proper investigation. It began before Halilovic found about these

15 crimes. Never did anyone at the time call upon Halilovic to

16 participate,. The president, Commander Delic, Salko Gusic, the 6th Corps

17 commander, who later on realised that Halilovic must have been in command

18 of the Prozor Independent Battalion. None of them thought that Halilovic

19 should play a part. None of them directed correspondence to him or asked

20 him to do anything or to play any part or to give any information.

21 Your Honours, by virtue of the material behind tab 12 and 18 on

22 the 16th of September, Stjepan Siber, deputy for Delic, made an inquiry of

23 the 6th Corps. On the same day by Exhibit 227 Jusuf Jasarevic made an

24 inquiry to his SVB operative, Nermin Eminovic, a much troubled witness who

25 had a great deal on his plate at the time. And whilst the Defence did

1 dispute some of his evidence you had to have some sympathy with

2 Mr. Eminovic and the position he was in as commander of the 6th Corps

3 Security Service at that time. Gusic did not say when he received that

4 correspondence, Don't send it to me, send it to Halilovic. He didn't

5 refer it to Halilovic or mention it to Halilovic.

6 Your Honours, the response at the top level of the Bosnian army

7 was prompt, efficient, and bona fide. They called for reports. They

8 acted on the reports. At the highest level, no more can be done. Some of

9 those reports are in evidence, D232, D236. They are behind tabs 20

10 and 21. It's quite clear that at the top levels of the Bosnian army,

11 everyone reacted properly. And Halilovic, whatever view you take of him

12 as a commander, is at the top level. He is not down at the battalion

13 command level. And therefore, if Halilovic was involved, he would have

14 done and could have done only those high-level steps, calling for reports

15 and so on. Now they were called for. So there is no step that could have

16 been taken that was failed to be taken at that high level, and there's no

17 basis for doubting the bona fides of what was said.

18 Your Honours, if it be concluded that the material from Radio Rama

19 put them on notice that they should call for an inquiry, well, the answer

20 to that is that at the high levels the Bosnian army did react

21 appropriately. Witness J was able to explain in relation to two of those

22 reports, D232 and D236, where he thought they got their information from

23 and which parts of his information had been put into that report.

24 Obviously they weren't his reports, and he didn't write them and he didn't

25 agree with everything that's in them.

1 The SVB, Your Honours, again did its job. Eminovic had to make

2 inquiries and that's what he did.

3 Down at the Prozor Independent Battalion there was also an

4 inquiry. Witness J gave evidence about this; he was a good witness. It's

5 a rhetorical question and contains its own answer. Why didn't, the

6 investigator, Mikhailov find this man? We don't know because he wasn't

7 called. But he was obviously a central person. The Prosecution tactics

8 in this particular Prosecution, this particular part of the case called

9 for criticism because what they did was to withdraw almost every witness

10 who knew anything about it, call two members of the Bosnian army, both

11 with pseudonyms, witnesses G and H, and elicit from them that they didn't

12 know -- well, elicit from one that they don't know about an investigation

13 and from that ask you, so it would appear, to infer that there wasn't an

14 investigation. They didn't run at that time, Your Honours, or plead or

15 suggest this cover-up theory. That cover-up theory is new.

16 Witness J came and gave evidence; it was good evidence. We say

17 that in awful circumstances bona fide he took 15 statements, he spoke to a

18 number of soldiers. It could have been about 100 but he said that wasn't

19 clear. He reported to the SVB. He helped Buza to compile a report, D149,

20 it's in evidence, four to five reports were produced by him and his

21 colleagues -- him and/or his colleagues. He spoke to the president. He

22 had good reasons to believe the soldiers' stories. He thought there was

23 house-to-house fighting and there was. He had heard the HVO soldiers on

24 the radio criticising each other for shelling civilians. The fact that

25 the civilians on display in this case were not killed by shells does not

1 remove the reality of Mr. -- Witness J's perception of shelling. And

2 there was visible devastation and smoke.

3 Now, we say the Prosecution did not prove the absence of shelling.

4 You can look to Defence Exhibit D318 which is Croatian -- sorry, HVO

5 battle reports which refer to shelling being done by themselves. And we

6 haven't got time. I invite you to look at those

7 reports.

8 There was an attack on Witness J as part of the cover-up but we

9 say -- and I don't mean this as a personal attack, the Prosecutors have

10 got to do their job, but it was a desperate situation for the Prosecutors.

11 They had no real basis for that attack. There was no basis for saying he

12 was part of the cover-up. They shouldn't have made that attack without a

13 basis, and we say they don't have it.

14 The incoherence allegation was particularly unfair, and we invite

15 you to look at his evidence and decide whether it's the questions or the

16 answers that are unfair -- that are incoherent, but he, we submit, was a

17 crystal clear witness upon whom you can rely. He was no whitewasher. He

18 did come to the view that some soldiers had something on their conscience,

19 and he told you that. There was nothing more he could have done.

20 The Prosecution flirted, and I use that term advisedly, they

21 flirted with the idea that perhaps contacts could have been made with the

22 HVO, that other material could have been gained. Well, to suggest that

23 the HVO would have assisted is not borne out by the evidence. That's why

24 Witness K was called. He came from a humanitarian organisation, and he

25 was given a manipulated and partial picture when he got to the village

1 where he was given a witness who he formed the view -- and he was a very

2 sympathetic witness to the people he was going to see. He wanted to

3 help. But he was given false information by an alleged eyewitness that he

4 formed the view was just a put-up job. He was not given cooperation, not

5 allowed to speak to the eyewitnesses and survivors. Why was that?

6 Because there was a battle in the village and because that wasn't in the

7 interests of those authorities at the time to reveal that there was such a

8 battle.

9 And saying that does not diminish the fact, if you find there were

10 murders, that there were murders. The reality or otherwise of killings

11 in -- in Uzdol is not at issue here. What's at issue in this part of the

12 submission is whether or not Witness J was entitled to come to the views

13 that he did and whether it looks like a cover-up. And the fact is it just

14 doesn't look like a cover-up. The Prosecution did not identify steps that

15 were failed to be taken. They didn't plead such steps, they didn't

16 identify them at any time. And again, there is just this atmosphere that

17 they'll think them up as intelligent lawyers at a later time rather than

18 saying that there's a sensible source for these obligations, and where do

19 humans in horrible situations turn to find out their obligations find

20 these allegations? They don't have the benefit of the learned Prosecutors

21 to help them at that time. They just have to do the best they can, and

22 their investigators.

23 Your Honours, I would now seek to hand the microphone to

24 Mr. Mettraux in relation to some legal matters.

25 JUDGE LIU: Thank you.

1 MR. METTRAUX: Good afternoon, Your Honour. Within the next

2 half-hour, the Defence would like to make a number of legal submissions

3 and we don't intend to re-tell this Trial Chamber our submissions as they

4 appear in the final brief, but simply to emphasise on the line a number of

5 matters which are of particular interest we believe.

6 The first such matter is an issue already touched upon by lead

7 counsel for the Defence, which concerned the relationship which must be

8 shown to exist between the accused on the one hand and the alleged

9 perpetrator on the other. We do not believe that the issue of effective

10 control needs any specification from the legal point of view. As for

11 effective control, Your Honour, it's been defined on many occasions as

12 "the material ability to prevent and punish crimes." It is a

13 relationship of authority which goes unquestioned between two poles, one

14 that gives order and the other that obeys. In such a relationship, in

15 effect, one of the power loses the ability to disagree with the other.

16 What the Defence submits and what the law supports is that short of giving

17 a criminal order, which the subordinate would be bound under the laws of

18 war to rebel and refuse to implement, effective control implies an

19 enforceable expectation of obedience on the parts of the subordinates, and

20 a mere expectation of compliance on the part of the superior.

21 Effective control may also be characterised perhaps in a different

22 way as the ability of an individual to exercise unquestioned authority

23 over the otherwise free will of another person and to enforce that

24 authority, if need be. The Appeals Chamber has made it clear in the

25 Tribunal that the sort of or the degree of authority which the commander

1 must be able to exercise over that subordinate is one equivalent to a de

2 jure sort of authority which -- one which you would find in a normal

3 functioning army. Effective control is not the same as an ability to

4 convince, to prompt, or to influence, nor is it the equivalent of an

5 availability of a sanction on the commander, however remote. Lead counsel

6 has also pointed out that the crucial and critical difference between a

7 power to influence, even though the Appeals Chamber has substantial

8 influence, would not suffice to amount to effective control. What must be

9 shown is, as was just pointed out before, that one party has lost the

10 ability to disagree with the other party, with the orders, to question the

11 order, or to choose to disobey the order.

12 But rather than to give you some abstract definition of what

13 effective control means under international humanitarian law, we would

14 like to point to three very clear examples of judgements in this Tribunal

15 where Trial Chambers had to decide that very matter: Where does the line

16 between influence and effective control lie? And what we suggest is those

17 three decisions, the Celebici Trial Chamber judgement, the Kvocka Trial

18 Chamber and the Kordic judgements, make it clear where the line lies, and

19 those three judgements should give you a snapshot of the law as it should

20 apply to this case.

21 In the Kvocka case the Trial Chamber held that Mr. Kvocka did not

22 have effective control despite the following. He was found to have had

23 clear and broad authority and influence within the camp. Former inmates

24 testify and an inmate who had known him before the war, he assumed

25 Mr. Kvocka had been the commander of the camp. A number of guards made it

1 clear that they could not allow certain things to happen within the camp

2 without the approval of Mr. Kvocka. Mr. Kvocka himself addressed

3 prisoners and told them he was in charge; he replaced the camp commander

4 in his absence and he passed on his orders. He was also seen and heard

5 giving orders to camp guards, and despite all of the above he was found

6 not to be in effective control of the alleged perpetrator. That finding

7 was upheld on appeal.

8 The same approach was adopted by the Celebici Trial Chamber

9 earlier where the Trial Chamber made the finding that Mr. Delalic had

10 exercised much authority and was greatly respected within his community.

11 There was evidence that he was the objective, general recognition and

12 appreciation, paragraph 651 of the trial judgement, that he had been

13 granted some special authorisation, for example to negotiate and conclude

14 contracts on behalf of the presidency, that he was a well-placed

15 individual, an influential one, paragraph 658. He was also appointed as

16 coordinator of the Konjic municipality defence forces, which empowered him

17 in turn to directly coordinate the work of defence forces in Konjic.

18 Mr. Delalic signed various orders. He participated in military operations

19 and ceremonies and was the commander of a tactical group. There again,

20 the Trial Chamber finds that this influence, this substantial influence,

21 was not enough to amount to effective control.

22 The Kordic trial judgement is perhaps even more revealing for

23 Your Honours and perhaps a better source than the previous two -- for the

24 present purposes. Mr. Kordic was said to be a politician with tremendous

25 influence and power. It was found by the Trial Chamber that he had an

1 important position in the leadership of Herceg-Bosna, that he played an

2 important role in military matters, even at time issuing orders and

3 exercising authority over HVO forces. He was found to have had

4 substantial influence over those who are said to have committed the

5 crimes. The Trial Chamber found that he was not in effective control of

6 the troop and, again, the Trial Chamber [sic] upheld that finding. That,

7 Your Honour, is what we suggest is the matrix within which you will have

8 to assess the evidence in this case and also the matrix, we suggest, that

9 should allow you to resist any attempt made to dilute the meaning and

10 significance of effective control.

11 Effective control is also a relationship between persons, between

12 the accused on the one hand and the alleged perpetrators on the other; it

13 is not a relationship between the accused and a unit or a military entity.

14 What the Prosecution must establish is a personal relationship, be it an

15 indirect one, be it one that goes through several levels of military

16 hierarchy or other sort of hierarchy. But it is not a relationship of a

17 man over a brigade or unit.

18 Lead counsel has also noted, and I will not spend a great amount

19 of time on this issue, effective control must be established, the Appeals

20 Chamber has made clear, at the time when the crimes were being committed,

21 not before, not after. What that means in practice - evidentially is very

22 important - is this case: The Trial Chamber will have to make a finding

23 that as of the 8th or 9th of September, 1993, as far as the 9th Brigade is

24 concerned, and the 14th as far as the Prozor Independent Battalion is

25 concerned, Mr. Halilovic had asserted his effective control over those

1 troops. And in that regard I will come back on this issue. The evidence

2 relied upon by the Prosecution to establish effective control is quite

3 revealing. At paragraph 181 of their final brief the Prosecution mentions

4 no less than seven orders attributed to Mr. Halilovic and which the

5 Prosecution says are relevant to establishing effective control. Six of

6 those orders, Your Honour, have been issued after the incidents. They

7 are, therefore, evidentially irrelevant. As for the seventh order, it's

8 been addressed by Mr. Morrissey, it is P161, the order of the 2nd of

9 September, and I will not come back on this issue.

10 Another point which was already made by my lead counsel, and I

11 simply reiterate it, the other side of the coin of that requirement is

12 that the obligation of a commander to act only lasts for as long as he is

13 under the effective control -- as he is in effective control of the

14 alleged perpetrators.

15 Concerning, more specifically, the manner in which the Prosecution

16 proposes to establish effective control, they list, as I have just

17 mentioned, a number of orders, as allegedly being relevant to that

18 determination. I have already pointed out the problem of the time of

19 those orders. But you will have to look at each and every order and

20 consider their content to consider whether they are indeed evidentially

21 relevant to the finding of effective control. And what the Prosecution

22 would have to establish is, firstly, that it's an order which has been

23 given or signed by the accused; it was an order signed to the relevant

24 people. When you do that assessment you also have to look at the capacity

25 in which Mr. Halilovic, in this case, signed those orders. That was the

1 position of the Celebici Trial Chamber, and a very sound one. And a point

2 that we want to make here concerned orders which are being signed by Chief

3 of Staff. And the high command court, the post-Nuremberg, based in

4 Nuremberg court, said this and was quoted by saying this also by the

5 Celebici Trial Chamber about orders being signed by Chief of Staff. "The

6 Chief of Staff does not have command authority in the chain of command.

7 An order of his own signature does not have authority for subordinates in

8 the chain of command."

9 The orders, I have already pointed out, must be given directly or

10 indirectly to the alleged perpetrators, not to third parties. They must

11 be binding orders, not recommendation or instruction. Those are not

12 revealing of any exercise of authority or power over those troops. Those

13 orders must also be shown by evidence to have been complied with, obeyed.

14 Yesterday the Prosecution suggested this: The mere fact that an order is

15 not obeyed is not indicative of a lack of effective control. Clearly that

16 is wrong. And the Appeals Chamber said so in the Blaskic appeals

17 judgement, where it says: "Proof is required that the accused was not

18 only able to issue orders but that the orders were actually followed."

19 It's paragraph 69, and that's a position which was shared in another

20 judgement, the Kordic Trial Chamber, for instance.

21 Lead Counsel has also pointed out that the order must reveal the

22 exercise of the accused's own power, not that he's exercising anyone

23 else's power. There again, I direct Your Honour to the Celebici trial

24 judgement where the orders which were signed or passed on by Mr. Delalic

25 were seen as merely "state of intermediate implementation." Finally

1 "those orders must be indicative" bears some indicia of an exercise of

2 power, of authority. They may not simply be routine orders.

3 I'll quickly move on, for lack of time, to the second issue, Your

4 Honour, that of mens rea.

5 The lead counsel for the Defence has already pointed out to the

6 test as far as failure to prevent is concerned. This is that of the

7 substantial likelihood. This is a test which has been applied in other

8 circumstances and in particular in the Strugar Trial Chamber judgement.

9 What the Prosecution will point out to you and what they have done in

10 their brief is that they have appealed this finding of the Trial Chamber.

11 What we say is this is a correct statement of the law as it existed at the

12 time. This finding is correct and not only is it correct, it's supported

13 by the finding of the Appeals Chamber at paragraph 41 of the Blaskic

14 Appeals Chamber, which says, "not as the Prosecution would have it but

15 this is a requirement that applies only to ordering, pursuant to 7(1), but

16 to all form of liability for serious violations of international law."

17 This is what the Blaskic Appeals Chamber said, this is what the Strugar

18 Trial Chamber has repeated.

19 Concerning the nature of the knowledge which Mr. Halilovic in this

20 case must be shown to have had is that of the substantial likelihood of

21 murders, not of any illegal conduct, not of some illegal act or some

22 criminal tendencies or criminal propensity. He must be shown to have had

23 knowledge or sufficient notice of the substantial likelihood of murder.

24 And I direct Your Honour to the very clear and very detailed finding of

25 the Appeals Chamber in Krnojelac, in relation to findings that were made

1 by the Trial Chamber in relation to torture, where the Appeals Chamber

2 said, in essence, that the finding that Mr. Krnojelac could be convicted

3 as a commander for torture based on knowledge that he had of beating

4 committed by his subordinates without more was not sufficient. He had to

5 know of this special purpose which is required by the crime of torture.

6 This is an element. In this case, the Prosecution will have to show that

7 Mr. Halilovic at the relevant time knew of all of the elements of the

8 definition of murder, including the specific state of mind required for

9 that offence. They've failed.

10 Concerning the timing of knowledge, my lead counsel has already

11 pointed out, and I will not stop here, knowledge must be established at

12 the time prior to the alleged failure. In fact, it is knowledge or

13 notice, as defined by the Appeals Chamber, which triggers his obligation

14 to act. I will stop, however, for a second to emphasise a point a bit

15 more as far as failure to prevent is concerned. The Statute is quite

16 clear about the moment or the immediacy that must exist between the

17 acquisition of knowledge on the one hand and the crime that is about to

18 happen. This is those word -- those words are, "are about to happen."

19 What the Prosecution is apparently attempting to do now is to make a

20 requirement of general knowledge of something that exists out there and

21 which would have given at some stage, and specified as we've noted, of

22 specific knowledge. Well, the Rule doesn't require prophetic powers on

23 the parts of the accused. It doesn't do that. The Kordic/Krnojelac Trial

24 Chamber has made it very clear what "are about to be committed" means, and

25 I will simply quote from the judgement, paragraph 445: "The duty to

1 prevent should be understood as resting on a superior at any stage before

2 the commission of a subordinate crime if he acquires knowledge that such a

3 crime is being prepared or planned or when he has reasonable ground to

4 suspect subordinate crimes."

5 This is when the obligation is triggered, when he knows that steps

6 are being taken, that crimes are on the verge of being committed. That

7 finding of the Kordic Trial Chamber was repeated in the, for instance, the

8 Hadzihasanovic Rule 98 bis decision, a recent one, at paragraph 166. A

9 remote or uncertain possibility that a crime might at some stage,

10 undefined, unspecified, be committed is not enough under Article 7(3).

11 This is not what the law provides for.

12 Lead counsel has also highlighted the danger of hindsight in those

13 matters, and indeed there is a serious danger that everyone would

14 naturally perhaps be tempted to look at what happened and bring it back to

15 the relevant time. Well, that temptation should be resisted, and I refer

16 Your Honour to a US State Department -- or Department of Defence report to

17 Congress on the conduct in the Persian Gulf War, which we cited in our

18 brief and which says this: "Leaders and commanders necessarily have to

19 make decisions on the basis of their assessment of the information

20 reasonably available to them at the time rather than what is determined in

21 hindsight."

22 In addition to the knowledge already mentioned, the accused must

23 be shown to have intended not to act, as he was required to do, with or

24 despite that knowledge. In the language of the Hostage court, another

25 post-Nuremberg case, "there must be proof of a positive covert act or

1 omission from which a guilty intent can be inferred. There can be no

2 crime large or small without an evil mind." In other words, punishment is

3 the consequence of wickedness. "Neither in philosophical speculation nor

4 in relation to religion or moral sentiment would any people in any age

5 allow that a man should be deemed guilty unless his mind is so."

6 In our brief, Your Honour, we have also pointed out that the

7 failure of the accused must be intentional in the sense of being both

8 voluntary and deliberate. Yesterday, however, in its closing argument the

9 Prosecution has suggested that the Defence had pointed out to no authority

10 for its, essentially, allegation. And the Prosecution pointed Your Honour

11 to paragraph 616 of our final brief. And the Prosecution is quite

12 correct, there was no authority in this paragraph. The authority for the

13 element of acquiescences is to be found in 426 to 428 of our brief, and I

14 will briefly summarise it here: "In the high command case in relation to

15 the accused Von Leeb, the court said that he must be shown both to have

16 had knowledge and to have been connected with certain criminal acts,

17 either by way of participation or criminal acquiescences."

18 The hostage case in the case of Foertsch, another accused talks

19 about consenting part in the crime, whereas, for -- in the judgement where

20 it says "approve of the action of his subordinates." The Flick case,

21 "knowledge and approval."

22 The Toyoda case, "permitted atrocities." And closer to us, in the

23 Tribunal, the Strugar trial judgement, paragraph 439, "the accused was, at

24 the very least by acquiescence a participant in the arrangement by which

25 Admiral Jokic undertook his sham investigation and sham disciplinary

1 action."

2 At the ICTR Musema trial judgement, paragraph 131, where the Trial

3 Chamber mentioned "tantamount to acquiescence or even malicious intent."

4 This is the authority the Defence is relying on. I'm sure that the Trial

5 Chamber would be able to find some others, but the Prosecution is pointing

6 to none to the contrary. This is a requirement of customary international

7 law.

8 Furthermore and one quick point in passing, knowledge may not be

9 presumed and superior responsibility does not arise from failure to act in

10 spite of knowledge. Knowledge must be established beyond reasonable

11 doubt. If it is inferred it must be the only reasonable inference to be

12 drawn from the evidence. And the facts upon which that inference is being

13 drawn must be proved beyond reasonable doubt. An inference of knowledge

14 may not be made based on the position only, and I refer Your Honour to the

15 finding of the IMT in Nuremberg, the military tribunal: "In relation to

16 the absent although judged Mr. Borman, the evidence does not show that

17 Borman knew of Hitler's plan to prepare, initiate or wage aggressive wars.

18 He attended none of the important conferences when Hitler revealed piece

19 by piece those plans for aggression, nor can knowledge be conclusively

20 inferred from the positions he held."

21 Finally, Your Honour, the third element: Necessary and reasonable

22 measures. The time has come for the Defence to try once again to explain

23 our many requests about the body of law which applies to those

24 proceedings. The jurisprudence of this Tribunal and of the ICTR is very

25 clear on that point: The command responsibility is responsibility for

1 failure to carry out your duties, and I just refer Your Honour to

2 paragraph 35 of the Bagilishema Appeals Chamber judgement which says

3 this: "A military commander or a civilian superior may therefore be held

4 responsible if he failed to discharge his duties as a superior either by

5 deliberately failing to perform them or by culpably or willfully

6 disregarding them."

7 Our question was this from the beginning of this trial: Where was

8 Mr. Halilovic to turn to determine its obligation according to the

9 Prosecution? Which body of law was he to have failed to comply with?

10 Based on what body of law is the Prosecution requesting that he had to

11 request a status report, whatever that means? What body of law request

12 suggests that he should have sent written instructions about the choice of

13 troops? What body of law requires of Mr. Halilovic that he had to perform

14 a security assessment in Grabovica? That question, Your Honour, was ours

15 for the length of the proceedings, now it becomes yours. What body of law

16 will the Trial Chamber turn to, to make that determination? What body of

17 law makes Sefer Halilovic a murderer, according to the Prosecution?

18 Common Article 3. The Prosecution yesterday appeared to suggest

19 that the Defence was challenging the customary status of that. No,

20 certainly not. It is part of customary international law. This is the

21 basics. Yes, it's customary international law; yes, the ICJ has

22 recognised it; this Tribunal has said so. It applies both in

23 international and internal armed conflict. We don't question that fact.

24 But Common Article 3 has nothing to do with the responsibility of

25 Mr. Halilovic. It is a mini-Geneva Conventions which provide for the

1 minimum guarantees of victims of war and it's been interpreted here as

2 criminalising a number of conduct: Rape, murder, and a number of others.

3 It has nothing to do with the responsibility of a commander.

4 What about treaties then? Geneva Conventions? Nothing relating

5 to the duties and responsibility of a commander.

6 What about the additional protocol? Additional Protocol II, well

7 there's nothing about commanders again.

8 Additional Protocol I, however, contains such article, Article 87.

9 I think I may leave on the side the issues of whether or not this protocol

10 would be applicable concerning the nature of the armed conflict which the

11 Prosecution seeks to apply. But it just says this, it's paragraph 3,

12 that "The high contracting party will have to ensure that commanders

13 should initiate such steps as unnecessary to prevent such violations of

14 the conventions or this protocol, and where appropriate to initiate

15 disciplinary or penal action against violators thereof."

16 It's very clear, Your Honour, from the commentary of the ICRC that

17 the way in which this should be organised was left to states and that

18 several states during the negotiation made it clear they were not ready to

19 bind themselves at the international level as to how this should happen.

20 Furthermore, there is no sign in the Additional Protocol of any of the

21 obligations and duties mentioned by the Prosecution. They are inventions.

22 They do not exist in law.

23 I'll just note in passing the attempt yesterday by the Prosecution

24 to now suggest, as they have in their final brief, that the Geneva

25 Conventions and the Additional Protocols were binding on Bosnia at the

1 relevant time. If that was true, this should have been done in evidence.

2 This wasn't the case. What we're saying is if the Prosecution is serious

3 about proving that matter, they missed the time. They have yesterday

4 showed a letter, apparently the letter of ratification, from the Bosnian

5 authorities. Well, it would appear from other cases that those letters

6 did not necessarily reach the Swiss government until much later, much

7 after it was sent. We are not in a position to ascertain when those

8 letters were received by the Swiss government and whether the instruments

9 were ratified at the relevant time, but this is not our obligation. This

10 is the Prosecution's obligation.

11 What about domestic practice, Your Honour? Is there anything

12 relevant to the list of obligation put forward by the Prosecution?

13 Nothing, nothing the Prosecution could point to and certainly nothing

14 which was applicable to Mr. Halilovic.

15 What about the custom, then? Not a shred of evidence either, more

16 opinion juris. Precedent? Well, the Prosecution has conceded yesterday

17 that there was no precedent which would support their case and we fully

18 agree with that. However, there is a case which may be of great

19 assistance to the Chamber, and that's the Toyoda case which is a case very

20 similar to the present one and we invite the Chamber to look at this case.

21 Well, in that case, where is the Trial Chamber to turn to in the

22 absence of the law, as we see it? Well, the life of a soldier, and

23 particularly the life of a soldier at war, is not a moral assignment. The

24 rules must be clear, because if there is a breach he must be able to react

25 and he must be able to react promptly and appropriately. A British court

1 mentioned that "no sailor and no soldiers can carry with him a library of

2 international law." That's the Peleus trial. That would be a heavy

3 library indeed. What you're being asked to do by the Prosecution in this

4 case is to invent new law, to enter new territories unchartered, and

5 that's not the law. You're being asked to create law for Sefer Halilovic.

6 We also draw the Trial Chamber to the issue of the principle of

7 legality which is to be found in the Ojdanic interlocutory decision at

8 paragraph 37. And I will jump forward to what would appear to be the last

9 issue we will have the time to deal with. But command responsibility is

10 responsibility for the failure of the commander, a personal dereliction

11 which has been said to amount to "wanton immoral disregard of the actions

12 of his subordinates." He is not to be held responsible for whatever

13 failure may be attributed to his subordinates or to anyone else. Any

14 other interpretation of the law, the high command court said, go far

15 beyond the basic principles of criminal law.

16 Therefore, once his obligation to act has been triggered, the

17 commander has to act. But he doesn't have to take the steps himself.

18 Article -- the ICRC commentary of Article 87 says this: "The commander

19 has certain duties, but this does not mean that he must do everything

20 himself and in fact a great deal of leeway has been left to his

21 subordinates." And I refer to our quote in the brief in that regard.

22 The Prosecution seems to say that the order of Mr. Halilovic to

23 Namik Dzankovic to investigate was not enough. There was more to do.

24 There was a status report to ask. The order should have been written.

25 Well, we've pointed out that this is not the law. But furthermore, to

1 repeat ourself, we direct Your Honour to a statement of legal advisor to

2 the Office of the Prosecutor Mr. Bill Fenerick in an article which he

3 contributed in the Otto Trifetterer ICC commentary, where he says this: "A

4 commander is unlikely to have direct and complete control over a military

5 or civil judicial system. Even the most high-ranking commander is

6 unlikely to be able to do more than refer matters to authorities

7 responsible for investigation and prosecution of offences."

8 But that's not only the view of the otherwise excellent

9 Mr. Fenrick, that's also the view of this Tribunal in Blaskic, Stakic,

10 and Aleksovski. "The obligation to prevent or punish may under some

11 circumstances be satisfied by reporting the matter to the competent

12 authorities."

13 Finally, in unexpected places, perhaps, the Supreme Court of

14 Florida said this: "A commander may fulfil his duty to investigate and

15 punish wrongdoers if he delegates this duty to a responsible subordinate.

16 The commander has a right to assume that rights entrusted to a responsible

17 subordinate will be properly executed."

18 Finally, Your Honour, and very briefly: Even if an accused were

19 to be found to have failed in his duty, that duty must be also blatant, as

20 it has been named in the past. That is, one that is so clear and obvious

21 that the accused must be aware of the criminal character and the grave

22 criminal character of his offence. President Cassese at the time said

23 that Article 7.3 was intended for what he called "system criminality, that

24 is, the obnoxious involvement of policymakers in widespread and systematic

25 disregard of human rights." That is the standard.

1 The last requirement, and simply to direct Your Honour to the

2 relevant pages. Yesterday the Prosecution suggested that the requirement

3 of causality was based on no more than an article by Professor

4 Trifetterer? And the writing of co-counsel for Sefer Halilovic. We

5 invite you to look at paragraph 592 to 595 of the Defence final brief,

6 where Your Honour will find plenty of authority for that submission.

7 Thank you, Your Honour.

8 JUDGE LIU: Thank you very much. I guess that's the end of the

9 closing arguments on the part of the Defence.

10 Could I ask you a question, Mr. Mettraux, since we still have a

11 few minutes left. Is that your position in order to establish the

12 mens rea of the commander's responsibility, the commander should share the

13 intent of his subordinate who committed a particular crime?

14 MR. METTRAUX: Well, Your Honour, I have a different task or a

15 different hat today than I have at other time. And my counsel here today

16 obliges me today to answer that the law of this Tribunal is that the

17 commander only needs to have known of the mens rea of his subordinates.

18 The more academic hat that I sometimes wear tend to think that more has to

19 be established. But the academic has been defeated, Your Honour.

20 JUDGE LIU: Thank you.

21 Another issue is that if it's the intention of the Defence to file

22 the book of authorities, I believe that the same criteria is also applied

23 to your side as well as to the Prosecution, that is: We only need the

24 table of the contents rather than the contents.

25 MR. METTRAUX: Certainly, Your Honour.

1 JUDGE LIU: And also, the time period is the same, that is within

2 one week's period.

3 Yes, I believe that's all for this morning's sitting. And as I

4 announced before, we'll resume at quarter past 3.00 this afternoon for any

5 rebuttal arguments.

6 --- Luncheon recess taken at 1.40 p.m.

7 --- On resuming at 3.19 p.m.

8 JUDGE LIU: Well, as stated in our Scheduling Order, that each

9 party will have 30 minutes for rebuttal argument, and I have to stress

10 that it is not an opportunity for the parties to reinforce their argument

11 but just to rebut whatever they are not expected in the briefs but

12 appeared in their closing argument.

13 Yes, Mr. Weiner?

14 MR. WEINER: Mr. Re will go first, to cover four legal points and

15 then I'll follow. Thank you.

16 JUDGE LIU: Thank. Mr. Re, please.

17 MR. RE: I'm just going to address -- thank you, Your Honours --

18 several points raised in the address of my learned colleague Mr. Mettraux

19 a bit earlier.

20 The first point I wish to respond to, bearing of course Your

21 Honour's direction not to raise fresh matters or to go over things from

22 earlier, is my learned colleague referred at page 85 of the transcript to

23 the Kvocka appeal, and which he said that he referred to Kvocka and said

24 that he was also seen and heard giving orders to camp guards, and despite

25 all of the above he was found not to be in effective control of the

1 alleged perpetrator. The finding was upheld on appeal. Reluctantly, I

2 have to say that that is not quite the position at all. Any reference to

3 the appeal in this respect is completely irrelevant.

4 MR. MORRISSEY: I'm sorry to interrupt, Your Honours. There is no

5 translation for Mr. Halilovic at this moment. I apologise to Mr. Re.

6 It's just been brought to my attention that that's the case.

7 JUDGE LIU: Shall we try it again? Do you hear it? Thank you.

8 You may proceed, Mr. Re.

9 MR. RE: I direct -- or sorry, I refer the Trial Chamber to

10 pages 47 to 52, paragraphs 136 onwards of the judgement. It was not an

11 issue on appeal. It was not upheld on appeal because it was not a 7(3)

12 case on appeal. On appeal it was only a 7 -- case under Article 7(1).

13 That is my first point.

14 The second one is the argument at page 87 of today's transcript,

15 referring to orders issued by Mr. Halilovic after the crimes in Grabovica

16 and the arguments that these are evidentiarily irrelevant. Those was the

17 word used. The Prosecution completely refutes that. Any orders made by

18 the accused within the time period, the temporal time period charged in

19 the indictment are relevant circumstantially or directly to proving his

20 effective control at the time. You could do it through looking at the

21 combination of evidence of orders issued before and afterwards to prove

22 that he had effective control at the time. And we certainly invite the

23 Trial Chamber to do that.

24 The third issue was that of -- raised again at page 88 within the

25 Defence submissions of the role of the Chief of Staff. The high command

1 case may well say the Chief of Staff had no command authority. It's not

2 an issue in this case. A Chief of Staff has whatever authority a

3 commander gives him or her at the time. The evidence is clear that

4 Mr. Halilovic had certain command authorities in Operation Neretva and he

5 exercised them. The high command case cannot be used for an authoritative

6 position in relation to all cases involving a Chief of Staff. It must be

7 decided on a case-by-case basis.

8 The next point is at paragraph -- sorry, page 89 of today's

9 transcript in which Mr. Mettraux referred to paragraph 41 of the Blaskic

10 appeals judgement. I refer Your Honours to that very paragraph. The

11 submission of the Defence was to tie it to Article 7(3). Blaskic Appeals

12 Chamber is only referring to Article 7(1). I won't read it on to the

13 record because of time, but I refer Your Honours to that paragraph and to

14 bear in mind when you go to the transcript that paragraph 41 and Blaskic

15 at that point is only 7(1) because he was not convicted in relation

16 to 7(3) on appeal.

17 The next point I take Your Honours to is at page 89 of the

18 transcript where Mr. Mettraux referred again to the issue where he said

19 that Mr. -- seemed to be confusing two issues; that is, the knowledge

20 which a commander must have, and that of the intention of the perpetrators

21 of the crime. And over the page the submission was: "The Prosecution

22 will have to show that Mr. Halilovic knew at the relevant time of all of

23 the elements of the definition of murder, including the specific state of

24 mind required for that offence. They failed." That in our submission is

25 an incorrect summation of the law. We said yesterday that murder does not

1 require -- is not a specific intent crime. I refer Your Honours to the

2 Krnojelac appeals judgments and specifically at paragraphs 187. There are

3 only three specific intent crimes: Genocide, torture and persecution.

4 The test in Krnojelac, it's four lines, is whether the person in charge,

5 that's Krnojelac, "had sufficient information to alert him to the risk

6 that inhumane acts and cruel treatment were being committed against the

7 non-Serb detainees because of their political or religious affiliation.

8 The Trial Chamber therefore committed an error of fact."

9 The point in Krnojelac was that it was referring to a specific

10 intent crime, namely torture, and the commander there needing to know of

11 the specific intention of the perpetrators. It is not the case in a case

12 of murder, which is simply not a specific intent crime. Murder, it is

13 very clear, the case law of this Tribunal, is -- can be committed by

14 indirect or direct intent. Also in addition, in relation to Krnojelac,

15 the commander under 7(3) would not actually need to know that torture was

16 actually happening, merely that the circumstances were sufficient to give

17 the person notice, the necessary notice, to act. They do not need to know

18 of the specific crime occurring at the time.

19 The next point is in relation to the international -- sorry, the

20 adoption of the -- the ratification -- this is at page 95, of the Geneva

21 Conventions by the Bosnian government. Mr. Mettraux said: "We are not in

22 a position to ascertain whether those letters were received by the Swiss

23 government and whether the instruments were ratified at the relevant time.

24 But this is not our obligation," and the time, he says, has passed for us

25 to say so.

1 With respect to our colleagues on the other side, that is just

2 errant nonsense. The letter, the notification says, this is the Swiss

3 government saying on the 31st of December, 1992, Bosnia deposited with the

4 Swiss Federal Council the declaration of succession, and they made it in

5 accordance with the -- and the Swiss government then notified the other

6 parties. It hasn't been an issue throughout the trial, as far as we know,

7 that Bosnia was not a party to the conventions, and it's something which

8 you can take judicial notice, and I can certainly hand up the letter if

9 the Trial Chamber wants it, and it's certainly available in the ICTY

10 library. Very easy to find.

11 Another legal error is at page 91 of the transcript where

12 Mr. Mettraux said: "In addition to the knowledge already mentioned, the

13 accused must be shown to have intended not to act as he was required to

14 do, with or without that knowledge." In our submission, that is an

15 inaccurate summation of the law. The -- and it brings it close to making

16 it into a 7(1) intention or mens rea. The mens rea here is the notice,

17 the knowledge; the intention is not required at that point. The trigger,

18 that's the trigger, for the omission.

19 They then go on to say: "We've pointed out the failure of the

20 accused must be intentional in the sense of being both voluntary and

21 deliberate." Again, in our submission, that is mischaracterisation of the

22 law. It does not need to be deliberate in that sense, in the same sense

23 it has to be for a 7(1) offence. It is the trigger -- it does not have to

24 be deliberate. It has to be an omission. The omission does not have to

25 be deliberate in the sense that it is something which you deliberately

1 intend to omit. Knowing it and you omit to do so - it may sound like I'm

2 splitting hairs here a little bit - but we say they are putting it too

3 high in that sense by putting it in those way [sic].

4 The final point I make is page 97, my learned friend Mr. Mettraux

5 in his final comment said: "Even if an accused were to be found to have

6 failed in his duty, the duty must be blatant, one that is so clear and

7 obvious that the accused must be aware of the criminal character and the

8 grave criminal character of his offence." Again, our submission is the

9 Defence is overstating it. There is absolutely no requirement under case

10 law or customary law that the criminal offence must be grave in offence.

11 That may well be a characterisation to invoke the jurisdiction of this

12 Tribunal but -- serious violation of IHL had been committed but it forms

13 no part of customary law.

14 Those are my submissions on the legal points.

15 MR. WEINER: Good afternoon, Your Honours. I'm going to address a

16 number of points, as many as we can in the time remaining.

17 The first one is the indication that footnote 549 was incorrect,

18 that the -- it was a post facto offer of military police. We checked that

19 and they are absolutely right. It is incorrect and we apologise for that.

20 Next, counsel asked why Halilovic did not have anything to do with

21 the 4th Corps. I will quote him. The -- on page 20, going into 21: "The

22 operation was about Mostar. That's where the 4th Corps were. How can it

23 be that Halilovic commanding those units did not have anything to do with

24 the 4th Corps at that time? But the answer is resolved if Delalic

25 retained command power for himself. In that way, coordination

1 between the two parts of the operation is maintained."

2 If, however, we go to Exhibit 289 at page 43, which is the book of

3 Sevko Hodzic, that as you recall is the reporter that Sefer Halilovic

4 brought along with him to record his glory. It says: Did Arif Pasalic

5 set off today with the 4th Corps, I asked Sefer? No, he did not. He will

6 receive an order on when he needs to move, Sefer replied."

7 And then if you go down to the bottom of the page, the reporter

8 says: "Of course I spoke to Pasalic on a number of occasions about

9 Operation Neretva. I participated in the planning of this operation in

10 Sarajevo, Pasalic said. Bilajac, Sefer and I, and partly Commander Delic

11 who signed it. However Sefer was late to come out of Sarajevo."

12 He participated in the planning of the operation with the accused.

13 Allegations that the 4th Corps were not involved is in conflict with the

14 statements of the commander of the 4th Corps, plus we also have two and

15 possibly three letters from the commander of the 4th Corps sent to the

16 forward command post, the IKM at Jablanica. Based on the book of Hodzic

17 who records the statement of Pasalic. Pasalic was involved in operation

18 Neretva. And he was involved because it concerned Mostar which was his

19 area of responsibility.

20 Now, counsel further states that it's unlikely that either

21 President Izetbegovic or Commander Delic would appoint Halilovic to

22 command authority. First of all, you have a transcript where Izetbegovic

23 makes it clear that that's exactly what he didn't -- what he didn't --

24 going to do, or he wasn't planning to do. It's a mistake in the

25 transcript. If we go to P281, which is the book of Sefer Halilovic,

1 "Cunning Strategy," on page 4 of the exhibit, in the first paragraph:

2 "At the meeting, Alispahic said the president has given you the green

3 light for the operation in order to help Mostar. I am putting the 50

4 strong Lasta detachment at your disposal. Every one rejoiced and

5 immediately started planning Lasta's participation."

6 The president was aware of what was going on.

7 Next, counsel refers to Ramiz Delalic, commonly known as Celo, as

8 a criminal, a bad one, a manipulator and so on. This type of person --

9 this is the type of person, this criminal, bad one, manipulator, that the

10 defendant brought to Herzegovina. If he was so worried about this

11 criminal he wouldn't have brought him to Herzegovina unless he didn't

12 care, and that's what we suggest, he just didn't care. He brought this

13 criminal to Herzegovina.

14 Now, should this Court believe anything that this criminal says?

15 We have had criminals testify here before, in the Bosanski Samac case we

16 had a criminal who had committed murder, who had committed rape, who had

17 committed torture, who had beat 500 or more people, and that person

18 testified, and how did the court look at that? The way they've looked at

19 other murderers that have testified before this court, and this Chamber we

20 suggest should do the same. You rely on those portions of testimony that

21 are corroborated. When there is corroboration for that testimony, it

22 should be viewed just like any other testimony. Just like the Court in

23 the Bosanski Samac case, which is Prosecutor versus Simic, Tadic and Zaric

24 relied on that particular person in that case.

25 Counsel claims that no information was introduced as to the IKM

1 and its powers but I would just invite counsel and I invite the Court

2 really to look to the testimony of Selmo Cikotic on February 23, pages 42

3 to 48; Salko Gusic, February 2nd, 62 to 64; and Salko Gusic, February 8th

4 at 99 to 100 in which they discussed the IKM. And I'll just -- the last

5 sentence or the last two sentence of Salko Gusic says on February 8th:

6 "So by definition, the forward command post is smaller than a command.

7 It contains only as much personnel and equipment as is necessary to effect

8 these functions of command and control."

9 Sorry, control and command.

10 Now, during their argument, counsel indicated there are certain --

11 that some of the necessary measures which Prosecution stated in its

12 closing brief and also in its argument were somewhat, if you want to call

13 it, invented by the Prosecution. But let's look and see what is in the

14 transcript. The security assessment. Where does the thought of the

15 security assessment come from? It comes right from the record. Jusuf

16 Jasarevic, on March 1, 2005, he's the one who talks about the duty to

17 perform a security assessment. And talks in 86, 87, the need for a

18 security assessment and how that security assessment would have prevented

19 the billeting of those soldiers with those local civilians. And then he

20 finishes off as he continues to speak that if they had to have been

21 billeted there, there was no option, then based on that security

22 assessment, actions would have been taken to protect those civilians,

23 either move them, separated them from the soldiers, or taken certain

24 action which we know weren't taken.

25 Counsel also addressed certain failures or said that they would

1 address certain failures that we claimed occurred at Grabovica and that

2 they would answer them. And they said that there really was a security

3 assessment. Karic, speaking with the elderly villagers, according to them

4 constitutes a security assessment. We suggest that that doesn't

5 constitute a security assessment. Going house to house and seeing some of

6 the elderly villagers asking them, Do you mind troops staying here? That

7 isn't a security assessment. That doesn't talk about the potential

8 danger, that doesn't discuss the danger to the troops, the danger to the

9 civilians, what sort of security needs to be installed or placed there for

10 the protection of all. That was not a security assessment. And in fact,

11 Karic never indicates in his testimony that he performed any sort of

12 security assessment.

13 Counsel also says that there was some supervision and refers to

14 Karic's visit. That was a one- to one-and-a-half hour visit. One- to

15 one-and-a-half hours during a period of, let's say, 30-plus hours, that

16 those troops were there and then the crimes occurred, or 30 hours in the

17 period that they first got there to maybe the end of the crimes. Maybe

18 it's even as much as 36. One- to one-and-a-half hours in a 36-hour

19 period, that does not constitute supervision. They were there to greet

20 the soldiers and to distribute food. And that's what Dzankovic tells.

21 He's passing out pies; he's taking them out of the trucks and bringing

22 plates or tins of pies to the soldiers. That's not an act of supervision.

23 There was testimony that Halilovic discharged his duties or

24 fulfilled his responsibilities by speaking with Dzankovic. What does

25 Jasarevic say? At page 32, on 3 March 2005: "Mr. Dzankovic, as a member

1 of the inspection team in this case, had no competence, no power, and no

2 authority because after all, he had never received an order from the

3 commander that he could then see through. It would have been very

4 difficult for him to find himself in a situation like that. I did try to

5 explain a while ago about these circumstances so I don't think I should

6 waste any more time now."

7 He didn't even want to respond further. Again, as to whether or

8 not Halilovic discharged his duties by notifying Dzankovic, he says, on

9 the 4th of March, at page 47:

10 "Q. You said you see no realistic possibility for Dzankovic doing

11 anything without clear orders from a position of authority. That was one.

12 One of the utterances that you made. Do

13 you remember?

14 "Yes, I remember the context. In my view, from the aspect of my

15 professional mandate, Dzankovic was not the person who could carry out

16 such complex tasks -- I'm sorry, such complex tasks in such a situation

17 without having the resources at his disposal. When I say resources, I

18 mean officers of the military security such as were available to aid

19 either a brigade or corps. Further on, he should have had police

20 officers, strong forces that were necessary in order to carry out an

21 investigation and collection of relevant information that would enable for

22 the proceedings to go on. That's one element."

23 I said testimony previously; I referred to my submission.

24 Just looking quickly before I move on with regard to

25 Mr. Dzankovic, Mr. Dzankovic never filed one report where he indicated he

1 interviewed one victim, where he interviewed one witness, where he did

2 some on-scene analysis. He never did anything. Any work that was done

3 was performed by the local police.

4 Now, there was an issue raised as to effective control, and

5 basically it was you can't have effective control of uncontrollable

6 troops. But what do we know from the facts? These troops followed combat

7 orders. They were good fighters. They had a relationship with Halilovic.

8 Or their commanders had a relationship had Halilovic. He could speak to

9 them. They might have been unruly when dealing with civilians and

10 citizens but they followed their combat orders.

11 Now, Karavelic, pages 156, 157 on April 18 addresses that point.

12 What was the relationship like -- or sorry: "What was the relationship

13 between the 1st Corps command and the 9th Motorised Brigade in 1993, in

14 terms of command and control, that is, the issuing of orders by the corps

15 command and how they were responded to by the 9th Motorised Brigade?"

16 And his answer: "All orders issued during 1993 to the 9th

17 Motorised Brigade by the command of the 1st Corps were issued to the

18 commander of that brigade. I can say that, all orders which refer and

19 which referred to the execution of combat activities in terms of defending

20 the defence lines in the zone of responsibility and/or the execution of

21 all kinds of combat operations that were ordered were carried out for the

22 most part by the 9th Motorised Brigade, so that there were no real serious

23 problems in respect to the execution of the basic tasks, the basic

24 missions of the brigade. There were no such problems."

25 This goes back to the issue once again. The issue was not their

1 fighting abilities. The issue was not their ability to wage combat.

2 Their issue was the mistreatment of civilians, which leads to the last

3 point. When counsel says that there was no basis for concluding that

4 there was any danger. Where was the danger? How would Halilovic know of

5 the danger? When you have troops that have consistently mistreated

6 civilians and you're sending to the area, even if it isn't Grabovica, you

7 send them to the Jablanica area where there are civilians, and there are

8 civilians from the enemy side, civilians whose relatives and friends they

9 will be fighting against, you don't need any expert to say that there is a

10 danger of harm, a danger of mistreatment or a danger of murder. That's

11 self-evident, Your Honour.

12 If there are any other points you'd like us to address, we would

13 address them now. If not -- one moment, please.

14 Sorry, one just quick point on page 108 of the transcript, line 40

15 it says "there is testimony that." I meant to say a Defence counsel

16 submitted or made a submission that. Thank you.

17 If there are no questions, that completes our rebuttal.

18 JUDGE LIU: Thank you.

19 Now the Defence team, please.

20 MR. MORRISSEY: Thanks, Your Honours. Could I just indicate I

21 think from Your Honour's -- from what Your Honours said our rebuttal is

22 limited to that which has just flowed now because we had notice of what

23 they said in their opening previously, so we will be short.

24 I will I deal with my learned friend's last submission about when

25 notice has got to arise. We did not get a time at which notice arose.

1 You don't have such a time.

2 Going in reverse order now, my learned friend said that you could

3 draw a conclusion that Ramiz Delalic was able to be effectively controlled

4 because he obeyed combat orders. And there is no dispute that he obeyed

5 combat orders. The real problem is that he didn't obey any others. And

6 what is at issue here is a material ability to be able to punish. In

7 other words, what Halilovic is charged with is failing to punish Ramiz

8 Delalic, and the effective control that needs to be established in that

9 regard is a material ability to punish him. Now, that doesn't depend on

10 him obeying combat orders. It depends on him obeying the other kind of

11 orders such as to go along with an investigation, or to do normal things,

12 to remain in the line of command and control. Halilovic's ability or

13 anyone else's ability to give him combat orders does not determine the

14 question. In fact it's, strictly speaking, irrelevant to the question.

15 The issue is, as we dealt with in our brief, would he obey any others?

16 And when he is standing directly in the way of the investigation, as he

17 did, we say that what the Prosecution's pointed out there is exactly the

18 problem. He just wouldn't comply unless it was a combat order, and his

19 ability or his willingness to comply with combat orders is not relevant to

20 his being effectively controlled in respect to punishment of any

21 particular crime.

22 Now, my friend made the point concerning Mr. Dzankovic and the

23 effectiveness of the order given by Halilovic to him, and it was said by

24 the Prosecutor that relying on Jusuf Jasarevic that Halilovic's order was

25 not enough and that more support was needed to be given to Dzankovic. But

1 in Exhibit D215 which is Dzankovic's report, Dzankovic asks for support.

2 He asks for a mixed commission to be given and so on. And you have that

3 order. And the person he asked was Jusuf Jasarevic himself, not

4 Halilovic. Dzankovic's position was quite different it to that of

5 Jasarevic. He thought it was Jasarevic who should have helped him.

6 Jasarevic didn't help, at least was unable to help him in respect of that

7 order. Jasarevic, of course, said didn't get that letter until a week

8 later and that could be true. So I don't wish to blame Jasarevic. But

9 what I wish to point out is that it's not a valid objection by the

10 Prosecutor because when you turn to what Dzankovic thought should happen

11 he didn't turn to Halilovic and he didn't ask him for those things. Nor

12 at the time did Jasarevic ask Halilovic to do those things when he finally

13 got the report from Dzankovic. Dzankovic sends his report requesting

14 things to Jusuf Jasarevic. Jasarevic did not then say to Halilovic, Could

15 you please look after this because it's your job?

16 Your Honours, my learned friend raised an issue concerning the

17 measures the Prosecution have outlined, and they said that the duty to

18 perform a security assessment was not invented by them but arises out of

19 the evidence of Jasarevic. Well, that could be true, Your Honour, it

20 could be that it arose out of Jasarevic's evidence and we don't quarrel

21 with it. All we'll say in response to that is that Mr. Karic did make a

22 visit. If the Prosecution don't think that's a good security assessment.

23 That's getting a long way away from war crimes. That's splitting

24 arguments at the time. Karic did at the time what he thought was

25 appropriate. He's a combat officer, he was in the area, and Jasarevic

1 wasn't. But in any event, we are still remote from Halilovic. Because no

2 one suggests that Halilovic was consulted by Karic on the content of that

3 visit and what should be done, and Halilovic, as we've said, was entitled

4 to rely upon the good faith and good behaviour of an experienced and one

5 would say upright officer.

6 As to the IKM, my learned friend raised an issue and said that you

7 could look to the evidence of Messrs. Cikotic and Gusic. And that's quite

8 true, you can look to that evidence. We'd just say you could look to

9 Cikotic with some measure of good faith. Gusic you know will put whatever

10 cast on that evidence will most avoid him being liable, and therefore,

11 you'd prefer Cikotic to Gusic. But of course you're entitled to look at

12 all the evidence and see what value it gives, and our point is that the

13 Prosecutors decided not to call any expert evidence on that.

14 My learned friend -- my learned co-counsel reminds me that there

15 has been discussion of an IKM and its possible operation in the

16 Hadzihasanovic case. If that's reflected in decisions, Your Honours might

17 be entitled to look at it, but we should -- you should proceed on the

18 evidence that's in this case.

19 It was put that Ramiz Delalic was a criminal and that the Defence

20 have now fallen into a very cunning strategy by the Prosecutor because by

21 calling Delalic they force us to attack him and then they say, Ah-hah,

22 we've revealed now what an evil man Delalic is and that just shows that

23 Halilovic shouldn't have used him. But there is an easy answer to that

24 one. Halilovic didn't know as much as you do. At that time, Ramiz

25 Delalic was only a young man and what he'd done is to defend Sarajevo,

1 perhaps in a slightly unorthodox way and not being in the line of command

2 and control. At that time he hadn't perjured himself in court or become a

3 major underworld figure. At the time when Halilovic knew Ramiz Delalic,

4 and at the time when Delalic gave to Herzegovina, Delalic hadn't yet

5 covered up a major crime in Grabovica. Halilovic didn't have the

6 knowledge that the Prosecutors had. It's the Prosecutors who should have

7 been on inquiry notice not to use a dangerous person, not Halilovic. It's

8 they who would knew very well what he is, and it's they it would have used

9 him to the detriment of their case and this trial.

10 It's put that in relation to Ramiz Delalic, you can believe him if

11 he's corroborated. Well, we put to you that's not right. Sometimes that

12 is right. Sometimes you can get a crazy person or a bad witness. They

13 can be corroborated; you can believe them. But Delalic knows the case.

14 He's prepared it, he was here with his admirable interrupting lawyer,

15 Mr. Karkin. He knows the documents here. If he happens to say something

16 that's consistent with other evidence, that doesn't mean he's

17 corroborated. It just means he's smart. It just means he knows about

18 it. You can't believe him if he's corroborated because the likelihood is

19 that he's just adopted that evidence.

20 When it comes to the second-last question, it was said that

21 Mr. Izetbegovic knew of the operation and gave it the green light. Well,

22 that's probably true but that begs the question: Was Halilovic the

23 commander of it or not? See, of course we agree with that. It does raise

24 another interesting issue, of course. Well, in any event, I've not to go

25 outside the questions and I won't.

1 And finally, the Prosecution raised a issue concerning Pasalic, a

2 comment by Halilovic that Pasalic will receive an order. That's a quote

3 from the journalist Sevko Hodzic. And he's a decent witness, a person who

4 basically came here and told the truth, so you would be entitled to act on

5 that. But it doesn't mean it's an order by Halilovic that Pasalic is

6 going to receive. That's the magic bit that the Prosecution miss.

7 Pasalic might receive an order. But in any event, we've got the evidence

8 from Budakovic and Najetovic, the people who were there from the 4th Corps

9 who said, Well, we knew nothing about Neretva 93. We knew nothing about

10 it.

11 And those are the responses to the factual submissions by

12 Mr. Weiner.

13 JUDGE LIU: Are there any legal responses?

14 MR. METTRAUX: None, Your Honour, thank you.

15 JUDGE LIU: Thank you. Thank you very much.

16 Well, I believe that's all for the rebuttal arguments, and at this

17 stage, I have some decisions to render.

18 The Trial Chamber is seized of the Defence motion for confidential

19 order re Rule 92 bis statements filed confidentially on the 18th of

20 August, 2005, in which the Defence requests two 92 bis witness statements

21 to be kept confidential.

22 The Defence in its motion submits that it has indicated earlier

23 that it would have no objection to lift the confidentiality of the Defence

24 92 bis statements once they were admitted into evidence. In light of the

25 present motion, the Trial Chamber understands the Defence to object only

1 to lift the protective measures for the two witnesses mentioned in the

2 motion.

3 The Defence submits that the Prosecution has indicated that it

4 does not object to the motion being granted.

5 The Trial Chamber finds there are reasons for remaining protective

6 measures for the statements of both witnesses mentioned in the motion, and

7 therefore grants the motion.

8 The Trial Chamber finds there are no reason to remain the

9 confidential status of the other admitted Defence 92 bis witness

10 statements, and therefore lifts their confidential status.

11 The Trial Chamber requests the Registrar to amend the status of

12 the witness statements in accordance with this decision.

13 I believe the Prosecution also have something to say with the

14 confidentiality of their 92 bis statements.

15 Mr. Weiner?

16 MR. WEINER: We have no objection to lifting the confidentiality

17 of the two 92 bis statements.

18 JUDGE LIU: Thank you very much. So the confidentiality of those

19 two 92 bis statements are lifted.

20 And the third issue is about the Defence document we mentioned

21 yesterday and this morning.

22 Mr. Morrissey?

23 MR. MORRISSEY: Your Honours, I understand that the document has

24 now been provided to court staff, and I formally seek to tender that

25 document, being a letter from the head of Bosnian -- sorry, this is --

1 it's a confidential letter, I'm sorry.

2 From the head of Bosnian secret services, concerning a particular

3 code. I offer that document for tender. The relevance of it is limited

4 to this, that it -- Exhibit -- Defence Exhibit D437 was a document

5 indicating that Halilovic was placed under surveillance, and on some

6 documentation there is a particular number on which the Defence relied

7 during evidence to indicate what level of threat, if you like, Halilovic

8 constituted to the state to justify such measures, and evidence about that

9 was led from two witnesses, Mr. Okovic and Mr. Alispahic. This letter

10 indicates what is the meaning of that particular code, so it assists you

11 to understand what was the reach of the measures employed against

12 Halilovic and what, if any, inferences you choose to draw about the

13 likelihood that he would be given command. That's the relevance of the

14 document.

15 JUDGE LIU: Thank you.

16 Any objections, Mr. Weiner?

17 MR. WEINER: We have no objection. There is really no reason to

18 keep it confidential since it's a -- it's now 12 years, 12-plus years

19 later, and it could just go in with the other exhibits.

20 JUDGE LIU: Do you agree?

21 MR. MORRISSEY: We agree.

22 JUDGE LIU: Thank you very much. This document is admitted into

23 the evidence.

24 THE REGISTRAR: That will be Exhibit D499.

25 JUDGE LIU: Are there any other matters that the parties would

1 like to bring to the attention of this Bench?

2 Yes, Mr. Morrissey?

3 MR. MORRISSEY: Your Honour, there is one matter, but would you

4 just permit me to go and approach Mr. Weiner very briefly? I don't want

5 the Court to leave. Could I just go across and speak to him very briefly?

6 JUDGE LIU: Yes, of course.

7 Yes, yes, Mr. Weiner?

8 MR. WEINER: Just one quick matter. Learned counsel just reminded

9 me. As you notice, one of the members of our team is not here. About a

10 week and a half ago, Manoj Sachdeva, the fourth member of our team, his

11 father passed away, and he really wanted to be here and participate in the

12 arguments and assist, and we are very sorry that he's not able to be here.

13 We would just like to publicly offer sympathies to Attorney Sachdeva and

14 his family. Thank you.

15 JUDGE LIU: Thank you very much. We are very sorry to hear that.

16 I think in the proceedings there are a lot of unexpected things happened.

17 This Bench would like to offer its sympathies to that brilliant attorney

18 at this stage.

19 MR. MORRISSEY: Your Honours, could we just join in that.

20 JUDGE LIU: Thank you.

21 Well, the oral proceedings of this case have come to an end. And

22 as a principle, I believe that this Bench would like to uphold the

23 finality of the proceedings. That is, no new evidence or motions shall be

24 accepted or entertained unless there are some very extraordinary

25 circumstances or unless there is something left over from the proceedings.

1 I believe that this Bench will withdraw to consider and elaborate on the

2 evidence received, taking into consideration the statements made by the

3 counsels yesterday and today.

4 It's very difficult to predict the exact date the final judgement

5 will be rendered at this stage; but, however, we could say probably at the

6 second week of November. That is more or less between 7th of November to

7 16th of November.

8 At this occasion, the Bench would like to take this opportunity to

9 thank both parties for their efforts to present their case, to assist us

10 to understand this case.

11 Our thanks also goes to all the people working for this case,

12 including interpreters, court deputies, court reporters, guards,

13 technicians and other people working for this case. Without their

14 efforts, we could not finish our case in six or seven months.

15 I believe that's all for this proceedings.

16 I wish everybody have a good time and the hearing is adjourned.

17 --- Whereupon the hearing adjourned at 4.05 p.m.

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