Tribunal Criminal Tribunal for the Former Yugoslavia

Page 31

1 Thursday, 22 February 2001

2 [Appeal Hearing]

3 [Open session]

4 [The accused entered court]

5 --- Upon commencing at 9.35 a.m.

6 JUDGE SHAHABUDDEEN: Madam Registrar, will you please call the

7 cases.

8 THE REGISTRAR: Case number IT-95-10-A, the Prosecutor versus

9 Goran Jelisic.

10 JUDGE SHAHABUDDEEN: Now, do I take it that it is understood that

11 under that rubric there are really two appeals, one by the Prosecutor

12 against acquittal and the other by Mr. Jelisic against sentence? Now, if

13 that is understood, I would ask for appearances at this time. I take it

14 the same counsel would be appearing for the same party in both appeals.

15 Is that right?

16 MR. CLEGG: That is correct.

17 JUDGE SHAHABUDDEEN: Yes. Then the first appeal, chronologically

18 speaking, is the appeal by the Prosecution. So could I hear from the

19 Prosecution what counsel would be appearing.

20 MR. YAPA: May it please Your Honours, I'm Upawansa Yapa,

21 appearing for the Prosecution, with Mr. Geoffrey Nice, Morten Bergsmo,

22 Fabricio Guariglia, and Ms. Carmela Annink-Javier is the case manager.

23 Thank you.

24 JUDGE SHAHABUDDEEN: And you will be appearing for the Prosecution

25 in both appeals.

Page 32

1 MR. YAPA: Yes.

2 JUDGE SHAHABUDDEEN: And for Mr. Jelisic?

3 THE INTERPRETER: Microphone for the counsel, please.

4 MR. CLEGG: I'm William Clegg, and I appear with Mr. Jovan Babic

5 and Ms. Laura McQuitty for the defendant in both appeals.

6 Could I just mention one caveat to what Your Honour said about a

7 moment ago about whether the appeal on behalf of the defendant was

8 confined merely to sentence. Until yesterday, it was certainly confined

9 merely to sentence.

10 Yesterday, when I arrived in The Hague, I was given a copy of the

11 Celebici judgement from the Appeals Chamber. The judgement that I

12 anticipate His Honour Judge Nieto-Navia and His Honour Judge Pocar will be

13 much more familiar with than I, but on reading the relevant passages, it

14 seems that the principle of cumulative convictions would apply to the

15 pleas tendered by this defendant to this indictment.

16 The point is, in many senses, a totally academic point of no

17 practical effect on the outcome of this case because he received one

18 single penalty, a penalty I am confident that was imposed for his actions

19 and not the way the indictment actually described the offences. However,

20 in the Celebici case, although there was no double sentencing, only, in

21 effect, cumulative convictions, the Appeals Chamber did refer the matter

22 back to a Trial Chamber because in its view the sentencing outcome, and I

23 quote from paragraph 431 of the judgement, "May have been different."

24 I do not assert in this case that the sentencing outcome would

25 have been different, and the last thing that Mr. Jelisic would want would

Page 33

1 be for his appeal to be postponed as a result of this quite technical

2 point.

3 It does, however, seem to me that on the basis of the majority

4 decision in the Celebici case, that the cumulative convictions returned

5 against this defendant on the basis of his plea of guilty can't

6 technically stand, and we would invite the Appeal Chamber to formally

7 quash the lesser of each of the pair of offences for which he was

8 sentenced.

9 To my mind, this makes no practical effect on the outcome of the

10 appeal at all, and I do not suggest that the penalty passed by the Trial

11 Chamber would in any way have been different. But in the light of the

12 Celebici judgement as I understand it, I don't think it would be right for

13 me as counsel for Mr. Jelisic to, as it were, abandon a point that has

14 found favour with the Appeal Chamber of this Court. Therefore, I would

15 respectfully ask for leave from the Court to appeal against the lesser of

16 each of the pairs of offences that Jelisic pleaded guilty to.

17 I would invite the Court to quash those convictions on the basis

18 of the judgement in the Celebici case and then to proceed to hear the

19 appeal on its merits so far as the appeal of the Prosecution is concerned

20 against the acquittal of genocide, and so far as the defendant is

21 concerned, on the issue of his sentence.

22 JUDGE SHAHABUDDEEN: The Court has before it a motion to amend the

23 Notice of Appeal in one of the two cases. What does the Prosecution say?

24 MR. YAPA: May it please Your Honour, we are not taken by surprise

25 by my learned friend's submission because this morning at about 9.00 he

Page 34

1 informed me that he proposed to take up this issue. But as it is, Your

2 Honour, what I would wish to submit is, although my learned friend puts it

3 simply as a matter of academic interest, this is not a matter on which we

4 can commit ourselves by responding on our feet, and it may require us to

5 look into the implications of the Celebici judgement on the, on the

6 judgement before Your Honours at this moment.

7 So I have no objection to my learned friend raising the issue or

8 making submissions on the matter, but may I be permitted to request that

9 we be permitted to file written submissions, if it is required, in respect

10 of this question on a later occasion. I thank you.

11 [Appeals Chamber confers]

12 JUDGE SHAHABUDDEEN: Mr. Clegg, you would like a word in addition?

13 MR. CLEGG: If the rules permitted, I would merely observe that

14 Mr. Yapa was, of course, the lead counsel for the Prosecutor in the

15 Celebici appeal so I anticipate knows a great deal more about it than I,

16 and I would have thought he would have been able to deal with the fairly

17 simple proposition that I make in the light of his appearance in the

18 appeal personally without the need to descend to lengthy written

19 submissions.

20 JUDGE SHAHABUDDEEN: Mr. Clegg, the position is that there are

21 some members of the bench who may not be as familiar as you and Mr. Yapa

22 happen to be with the judgement to which you are referring, so may there

23 be some merit in Mr. Yapa's proposal that, if only to educate the members

24 of the bench, it would be a good idea if the parties were allowed in due

25 course to file written papers on the point. That is to say, briefly, as I

Page 35

1 understand it, the Prosecution offers no objection to your proposal to

2 amend your Notice of Appeal, and appeals can go on, the hearing can go on

3 on that basis; but I imagine that at a subsequent stage, the parties would

4 be granted leave -- or we will grant leave now to the parties to file at a

5 subsequent stage written briefs on the subject.

6 MR. CLEGG: I'm very content for the matter to proceed in that

7 way.


9 MR. CLEGG: I'm grateful.

10 JUDGE SHAHABUDDEEN: Well, then, leave is granted on those

11 conditions. We will stipulate later what might be the time frame for

12 submissions for the written briefs and if any party so desires.

13 And second item is, housekeeping -- have you finished with that

14 point?

15 MR. CLEGG: I have. I had forgot to mention that I do have the

16 assistance of an interpreter, that Mr. Babic's English is much better than

17 my Serbo-Croat, but I'm afraid communication between the two of us is

18 still a struggle. She is present outside Court, can only enter with the

19 leave of the Court, and I would ask for leave for her to enter Court to

20 sit between the two of us and also to enable me to communicate directly

21 with Mr. Jelisic.

22 JUDGE SHAHABUDDEEN: Let us hear from your friend.

23 Mr. Prosecutor, is there any objection to that?

24 MR. YAPA: I have no objection, Your Honour.

25 [Appeals Chamber confers]

Page 36

1 JUDGE SHAHABUDDEEN: Agreed. Very good. May I go on to some

2 housekeeping details. We began to sit this morning at 9.30, and we

3 propose to continue on until 1.00 p.m.

4 Now, the luncheon break will follow and normally that will be an

5 hour and a half, but we propose to resume at 3.00, the reason being that

6 one of our number would have to take his place on another Bench during the

7 interval. So we would resume at 3.00, and we would continue on until 5.00

8 to 5.15 p.m. today. There will be, in the usual way, two coffee breaks,

9 about 15 minutes each.

10 Now, we will begin with the Prosecutor's appeal, and as we have

11 indicated in a Scheduling Order, each main presenter will have two hours

12 to present his case, and the party following would then have two hours to

13 respond and then the first speaker will have half an hour to wrap it up,

14 as it were. We will take the Prosecutor's appeal first, and when that

15 will have been concluded, we will follow with Mr. Jelisic's appeal.

16 Now, we did, in one of our Scheduling Orders, ask the parties to

17 be good enough to file public versions of certain documents. I think the

18 Prosecutor complied. They filed a respondent's brief on the 6th of

19 September, but on our records, we don't see that any briefs -- any public

20 versions of any briefs were filed by the Defence. I wonder if this might

21 be remedied as soon as possible.

22 MR. CLEGG: It certainly will be done as soon as possible. As the

23 Appeals Chamber may be aware, I was only instructed inside the last three

24 weeks and was unaware of that Scheduling Order, but I will ensure that it

25 is complied with in the immediate future.

Page 37

1 JUDGE SHAHABUDDEEN: We appreciate fully, Mr. Clegg, the

2 disadvantages under which you suffer, and we also admire your ability to

3 conform.

4 So what we propose is that we shall go on with the appeal pending

5 the submission of these public versions of the various documents by the

6 Defence.

7 Now, there is a skeleton argument presented by Mr. Clegg, and the

8 Bench understands the Prosecution's position to be this: The Prosecution

9 thinks that there may be some new arguments in the skeleton brief, but

10 that the Prosecution is offering no objection to its being filed.

11 Mr. Clegg, you were asking for it to be laid over formally?

12 MR. CLEGG: I am. It was not intended to raise any new argument,

13 but I see that it has been interpreted as so doing. I was hoping to

14 effectively clear the decks and to clarify the points that will still be

15 pursued by the appellant and those that would not be, but I have no

16 objection to the respondent, or should I say appellant, as it were,

17 embracing the fresh material in the course of their arguments today.

18 JUDGE SHAHABUDDEEN: You propose to stay within the perimeter

19 demarcated by the previous pleadings filed on behalf of Mr. Jelisic?

20 MR. CLEGG: Yes, as I understand them.

21 JUDGE SHAHABUDDEEN: Yes. Now, also in the skeleton arguments

22 presented by Mr. Clegg there is an announcement of certain concessions.

23 Those, I take it, will be taken into account. If they could lead to an

24 abbreviation or curtailment of our comment, that is a prospect much to be

25 desired.

Page 38

1 The last thing is the parties will bear in mind and alert the

2 Bench when the occasion arises to the possible need for a closed session

3 on any particular phase of the arguments.

4 Right. So we'll hear the Prosecution at this time. Thank you.

5 MR. YAPA: May it please Your Honours, before I commence on the

6 Prosecution case or the Prosecution case in appeal, may I be permitted to

7 hand over a short document that I have prepared in respect of the order of

8 argument of the Prosecution, which I'm sure will assist Your Honours and

9 also my learned friend.


11 MR. YAPA: I thank Your Honours. One other small matter that I

12 wish to refer to -- Your Honours were pleased to give -- allocate the

13 times for the presentation of arguments, and we have been given two hours

14 for the presentation of the appeal and another two hours for the

15 response. On consideration, we have agreed that it may not be necessary

16 for us to have the two hours that have been demarcated for the response,

17 and may Your Honours be pleased to allocate half an hour from that

18 response time to the appeal time, for the presentation of appeal, to make

19 it two and a half hours, and then one and a half hours for the response.

20 There is no difference in the time allocation for the Prosecution, but the

21 request is that we be given an additional half an hour taken from the

22 response time to present the appeal.

23 [Appeals Chamber confers]

24 JUDGE SHAHABUDDEEN: Mr. Clegg, you don't offer an objection to

25 the course proposed, do you?

Page 39

1 MR. CLEGG: I have no objection. It appears as though the initial

2 hopes of brevity may have been rather premature.

3 JUDGE SHAHABUDDEEN: May I say, Mr. Yapa, that the Bench has read

4 the briefs which have been submitted. There is documentation of some

5 dimensions before the Court, and we had hoped that in this way it would be

6 possible for arguments to be abbreviated a little. Still, provided you do

7 not exceed the maximum times allocated on the Scheduling Order, we would

8 be disposed to allow you to take the course which you have indicated.

9 MR. YAPA: I thank Your Honour. I fully appreciate the

10 observations made by Your Honour on the written brief that I will file.

11 We have made -- I have made attempts to make it as comprehensive as

12 possible, and we have done so. The order of submissions that will be made

13 will be in addition to any matter that has to be elaborated on.

14 JUDGE SHAHABUDDEEN: You're aware, Mr. Yapa, that the rule-making

15 body has since issued a practice direction regulating the maximum length

16 of written briefs and so on.

17 MR. YAPA: Yes, Your Honour, yes.

18 May it please Your Honours, my task at this stage is, as indicated

19 in the order of argument, to present an introduction to the Prosecution

20 appeal and later speak on the remedies sought by the Prosecution in the

21 appeal. The second aspect that is in respect of the remedies, it may be

22 necessary for another counsel in my team to make submissions, but that

23 will be decided upon later on.

24 Your Honour, as regards the grounds of appeal taken up by the

25 Prosecution, what I would wish to at the very outset state to Your Honours

Page 40

1 is that we have --

2 JUDGE SHAHABUDDEEN: Mr. Yapa, one moment.

3 [Appeals Chamber confers]

4 JUDGE SHAHABUDDEEN: My colleague on my left has pointed out that

5 you have started roughly at 10.00, and that should be borne in mind as a

6 factor in the computation of allocated times. Yes.

7 MR. YAPA: I thank Your Honours.

8 The submission that I wish to make initially is following upon the

9 pronouncement made by Your Honours' Court that the appeal procedure in

10 this Tribunal is of a corrective nature, in terms of the Statute, the

11 Prosecution has come before Your Honours seeking relief under Article 25

12 of the Statute.

13 In the appeals that have come up so far before Your Honours'

14 Court, the Prosecution has made submissions on the standards of review on

15 appeal. I do not intend to reiterate those submissions other than to say

16 that we are before Your Honours as an appealing party, taking grounds of

17 appeal brought on issues of law and facts.

18 This appeal, although it is from a final judgement of a Trial

19 Chamber, has different features from appeals heard by Your Honours' Court

20 so far. It is an appeal from a final judgement pronounced not at the

21 conclusion of a trial as we ordinarily refer to; the appeal is against a

22 judgement at a previous stage of the trial. The stage that I

23 referred to is described as a halfway stage by some judges. The stage I

24 am drawing attention to is Rule 98 bis stage as is commonly referred to

25 now in the Rules of Procedure and Evidence.

Page 41

1 The grounds of appeal that the Prosecution has taken up are

2 germane to the operation of this rule. It is in fact the central theme of

3 the appeal of the Prosecution. Arguments in this regard are to be

4 followed, but may I submit it -- may I submit that it is our submission

5 that an inaccurate and erroneous procedure was followed by the Trial

6 Chamber.

7 Proceeding on that submission is our first ground of appeal -- as

8 our first ground of appeal, we submit that the Trial Chamber erred in law

9 by depriving the Prosecution an opportunity to be heard prior to the Trial

10 Chamber proceeding to act under Rule 98 bis. There are two facets to the

11 first ground of appeal that we have urged. The Prosecution was denied a

12 right to be heard on the application of Rule 98 bis. Concomitantly, the

13 Trial Chamber refused the Prosecution the right to be heard on the

14 question whether the Prosecution should be granted a hearing.

15 It is not my task to go into detail on the grounds of appeal that

16 we have taken up. Suffice it to say that flowing from the error of

17 denying the Prosecution the right to be heard, the Trial Chamber erred in

18 law in the application of Rule 98 bis, and further, erred in law in

19 defining the requisite mental state for genocide under Article 4 of the

20 Statute.

21 In a sense, then, we have taken up three grounds of appeal. The

22 first is on the Prosecution's right to be heard; the second centres on the

23 application of Rule 98 bis, more particularly, in construing the rule, the

24 application of a beyond-reasonable-doubt standard; and the third is on the

25 mental state for genocide in Article 4 of the Statute. These grounds of

Page 42












12 Blank page inserted to ensure pagination corresponds between the French

13 and English transcripts.













Page 43

1 appeal will be elaborated on by my colleagues shortly.

2 May I be permitted to make a general submission in respect of all

3 three grounds of appeal. These grounds of appeal deal with issues crucial

4 and fundamental to proceedings before the Trial Chamber. The grounds are

5 interrelated and interconnected, so much so it could be said that there

6 was a chain reaction from the initial error.

7 Before I speak of the remedy we are seeking, I would like to say a

8 few words about the skeleton submissions presented by the appellant. We

9 are not opposed to the presentation. We are, in fact, thankful to my

10 learned friend for presenting the skeleton argument.

11 As regards the appeal of the Defence, it is stated that the

12 appellant seeks only to appeal against his sentence. Significantly, the

13 appellant concedes the first two grounds of appeal of the Prosecution,

14 going to the extent of saying that for the reasons advanced by the

15 Prosecution, the Prosecution ought to have been given the opportunity to

16 be heard; and for the reasons submitted by the Prosecution, the Trial

17 Chamber did apply the incorrect standard of proof to the stage at which

18 the trial had reached. I'm quoting my learned friend's submission in the

19 skeleton argument.

20 The appellant maintains the position that the Trial Chamber

21 correctly applied the law of genocide to the facts of the case. We take

22 issue on this assertion and necessary submissions will be made when

23 presenting the arguments on the third ground of appeal of the Prosecution.

24 In conceding the first two grounds of appeal, the appellant adds a

25 rider, as if it were. On the first ground of appeal, it is said that the

Page 44

1 failure to permit the Prosecution an opportunity to make submissions does

2 not render the verdict invalid unless the Trial Chamber erred in its

3 application of the law to the facts of the case. It is submitted that

4 with respect. It is submitted with respect that this is a misconceived

5 submission. Necessary submissions will be made on this aspect when

6 dealing with the first ground of appeal.

7 On the second ground, the appellant having conceded that the

8 complaint was well-founded adds that it relates to form rather than

9 substance. We beg to disagree. It is not one of mere form. It was a

10 serious error which scuttled the settled procedure and led to a series of

11 errors of law and fact. Our submission on this ground will deal with this

12 matter later.

13 The submission that the Trial Chamber short-circuited - again, I'm

14 quoting the skeleton argument - the proper process is, with respect, not

15 an acceptable submission because there is no room for such a procedure.

16 If I may come to the remedies that we are seeking, in short, may I

17 say to Your Honours, submit to Your Honours, that in essence, we are

18 seeking a retrial on the count of genocide before a differently

19 constituted Trial Chamber. Detailed submissions on this matter will be

20 made by my colleagues in the appeals team.

21 We also urge Your Honours to give guidance on the legal issue of

22 the necessary intent in the crime of genocide. I do not wish to proceed

23 any further. On the first ground of appeal, it will be Mr. Fabricio

24 Guariglia who will make the submissions. I seek your permission to invite

25 Mr. Guariglia to make his submissions. Thank you, Your Honours.

Page 45

1 JUDGE SHAHABUDDEEN: Mr. Guariglia, you have the floor, yes.

2 MR. GUARIGLIA: Thank you, Your Honour. Good morning, Your

3 Honours. Your Honours, I would deal with grounds one and two of the

4 Prosecution's appeal brief, hopefully in no longer than 20 minutes,

5 subject to questions.

6 As already advanced, the concessions made by the Defence are

7 welcomed, and we see them as confirming our position that the Trial

8 Chamber erred. However, the fact that the parties agree on a particular

9 point of law does not automatically dispose of the issue, and we submit

10 that the Appeals Chamber must still be satisfied that the points agreed by

11 the parties constitute correct determinations of the law and is free to move

12 beyond the submissions of the parties if it considers that the position

13 adopted by the parties is legally incorrect.

14 Further in this case, as already explained by Mr. Yapa,

15 there is no complete agreement between the parties as to the scope of

16 those errors and the effect of those errors under grounds 1 and 2 of the

17 Prosecution's appeal brief generate or trigger.

18 I will first address the issues on the Prosecution's first ground

19 of appeal as contained in paragraphs 2.1 to 2.40 of the Prosecution's

20 appeal brief and explain why in and of itself the Trial Chamber's refusal

21 to hear submissions of the Prosecution before entering a judgement of

22 acquittal warrants a retrial.

23 The overarching principle here is that also the Prosecution is

24 entitled to a fair and expeditious trial under Article 20, paragraph 1 of

25 the statute. We rely on the clear findings of this Appeals Chamber in a

Page 46

1 decision delivered in the Aleksovski case pursuant to an interlocutory

2 appeal. The concept of a fair trial must be applied in favour of both

3 parties since the Prosecution acts on behalf of and in the interest of the

4 International Community, including the interest of the victims of the

5 crimes charged. Therefore, a trial could not be considered to be fair

6 where the Prosecution is favoured at the expense of the Prosecution's

7 rights.

8 The right to be heard before a decision that may be a final

9 decision on a case is made, as it will always be the case in the context

10 of a Rule 98 bis determination, is a fundamental right of either party

11 that goes to the core of fairness of criminal proceedings. It constitutes

12 an essential component of adversarial proceedings which rely on the

13 premise that partisan advocacy on both sides is the means to promote the

14 ultimate goal that the guilty be convicted and the innocent go free.

15 It is recognised as an absolute right by the ICTY Rules

16 themselves, contrary to the position adopted by the Trial Chamber in its

17 oral judgement in the Jelisic case. Rule 86 grants both parties an

18 absolute right to make closing submissions before a final decision on the

19 case is reached. Conversely, the Rule does not grant any authority to a

20 Trial Chamber to refuse to hear closing arguments by the parties. A

21 fortiori, being a decision to enter a judgement of acquittal under

22 Rule 98 bis a final decision on the case, we submit, an identical right of

23 audience should be granted to the parties before the decision is reached.

24 We submit that the right of the Prosecution to be heard in the

25 context of Rule 98 bis cannot and should not be reduced to a hollow right

Page 47

1 which may be freely ignored or reduced to a meaningless minimum by a Trial

2 Chamber without fatally impairing the integrity of the proceedings as the

3 Defence is now inviting you to do. On the contrary; we submit that the

4 right is of such a fundamental nature that it is impossible to see how a

5 trial could still be considered to be fair within the meaning of

6 Article 20, paragraph 1 when the right in question has been completely

7 violated by an absolute denial of a Trial Chamber to hear arguments before

8 making a decision.

9 In this context, it will be pertinent to identify with some

10 precision the events at trial pertaining to this ground of appeal. The

11 situation that you must examine is not one in which the Prosecution

12 inadvertently failed to use an available opportunity to address the Trial

13 Chamber, thereby arguably waiving its right to be heard, nor is the

14 situation one in which the Prosecution's prejudice was caused by a Trial

15 Chamber's excessive limitation of the exercise of the right to be heard.

16 In either of these hypothetical cases, the argument of a harmless

17 error could perhaps be validly raised, but in the instant case, the

18 Prosecution had no opportunity whatsoever to present arguments to the

19 Trial Chamber pertaining to the Rule 98 bis decision. When the

20 Prosecution requested the Trial Chamber precisely to grant it that very

21 opportunity, it met an outright refusal of the Trial Chamber to hear

22 arguments. The final decision on the case, an acquittal, immediately

23 followed that refusal.

24 In addition to these considerations, it may also be pertinent to

25 bear in mind the importance for Chambers of the International Tribunal of

Page 48

1 hearing submissions by the parties in order properly determine the issues

2 at stake. In the context of the adversarial proceedings adopted by the

3 ICTY, submissions by both parties provide Chambers of the Tribunal with

4 the very material that they need in order to make sound and reasoned

5 decision on both law and fact.

6 Regardless of whether it is acting upon request of a party or

7 proprio motu, a Trial Chamber needs to hear submissions from parties

8 before making a decision in order to have the opportunity to consider all

9 aspects of the case before it.

10 The damaging consequences of not hearing submissions from the

11 parties before making a central decision on the case and conversely the

12 benefits of being assisted by the parties are perhaps most clearly

13 represented by the Trial Chamber's adoption of a defective standard for

14 the evaluation of the evidence under Rule 98 bis in the instant case. By

15 refusing to hear arguments from the Prosecution, the Trial Chamber

16 deprived itself of the benefit of being assisted as to what the proper

17 standard under Rule 98 bis would be. As a result, we submit, the Trial

18 Chamber completely erred on the matter by inadequately adopting a test of

19 guilt beyond a reasonable doubt, and the conclusive language of both the

20 oral and written judgements clearly shows that the Trial Chamber did not

21 even consider as a possibility that a different test could apply for that

22 particular exercise.

23 In contrast, two Judges of the same Trial Chamber, when faced in a

24 different case with a motion of acquittal under Rule 98 bis, the case

25 being Prosecutor versus Kvocka, and after hearing detailed submissions by

Page 49

1 all parties, instead of insisting in applying the test that they had

2 previously applied in the Jelisic case, adopted a test identical to the

3 one advocated by the Prosecution in the current appellate proceedings.

4 It may well be concluded that those Judges, in light of the

5 submissions they had heard, realised that their previous decision on the

6 matter had been in error. Perhaps the Jelisic Trial Chamber would have

7 realised that it was about to apply the wrong test had it decided to hear

8 arguments from the Prosecution.

9 To sum up on ground 1, the right to be heard before a final

10 decision on a case is made is a fundamental one, and it constitutes an

11 essential component of the fairness of trial proceedings. Its violation

12 by a Trial Chamber constitutes such a fundamental blow to the fairness of

13 a trial, as required by Article 20, paragraph 1, that in and of itself it

14 renders the decision invalid and warrants a retrial. This is much more so

15 where the violation, as in the instant case, is compounded by an absolute

16 denial of the right to be heard.

17 Further, depriving a party from an opportunity to be heard not

18 only violates that party's fundamental rights, but also puts at risk the

19 integrity and quality of the proceedings by undermining the cornerstone of

20 the very system of judicial decision-making in an adversarial setting,

21 partisan advocacy from both sides.

22 We respectfully submit that, contrary to the assertions of my

23 learned friend, there is no need for the Appeals Chamber to make any

24 further determination as to the impact of the alleged error on the

25 decision. On the basis of the error invoked in ground 1 alone, we submit,

Page 50

1 a retrial before a reconstituted Trial Chamber should be ordered.

2 However, if the Appeals Chamber considers that a further showing of impact

3 on the decision is required, we submit that in the instant case there can

4 be no doubt that the Trial Chamber's failure to hear submissions by the

5 Prosecution did cause fundamental defects in the decision such as adoption

6 of an effective standard under Rule 98 bis, which will be discussed under

7 ground 2, the numerous fundamental errors of the Trial Chamber in its

8 evaluation of the evidence before it, and the application of the law on

9 genocide which will be discussed under ground 3.

10 This concludes my submission on ground 1. Unless there are

11 questions from the Chamber, I will move to ground 2.

12 JUDGE SHAHABUDDEEN: Mr. Guariglia, members of the Bench would be

13 asking you questions whenever they feel disposed to, but let me take the

14 precaution of asking whether they intend to.

15 [Appeals Chamber confers]

16 JUDGE SHAHABUDDEEN: No. You may go on.

17 MR. GUARIGLIA: Thank you, Your Honour.

18 Similar conclusions to the ones reached in ground 1 may be

19 properly reached also on the issues pertaining to the Prosecution's second

20 ground of appeal, that is, the application of a guilt beyond a reasonable

21 doubt standard under Rule 98 bis.

22 As already said, the Defence, while conceding that the Trial

23 Chamber erred in applying the standard is inviting you to treat this error

24 as one of form rather than substance. It would appear that the Defence

25 position is that since the Trial Chamber operates both as a trier of fact

Page 51

1 and a trier of law, the fact that the Chamber advanced its ultimate

2 determination on guilt or innocence to the Rule 98 bis stage is immaterial

3 since the Trial Chamber would have acquitted at the end of the case in any

4 event.

5 By arguing this way, the Defence is suggesting that the success of

6 the Prosecutor's second ground of appeal necessarily depends on the

7 success of the Prosecutor's third ground of appeal dealing with the

8 quality and volume of the evidence and the law on genocide.

9 The Prosecution respectfully disagrees. At the outset, the

10 Prosecution notes that the Defence has attempted first to isolate the

11 errors committed by the Trial Chamber and then taking each error

12 individually, to undermine their importance. That this exercise must fail

13 necessarily in the case of the violation of the Prosecution's right to be

14 heard has already been explained.

15 In addition, the Prosecution submits that on the one hand, there

16 are very compelling reasons to consider that a complete failure to apply

17 the correct test under Rule 98 bis should be treated as an incurable error

18 that goes beyond the corrective ability of the Appeals Chamber. On the

19 other hand, the Prosecution submits that the errors committed by the Trial

20 Chamber are intimately interrelated and must be considered as a totality.

21 I will address these questions in the remaining time.

22 It appears to be beyond dispute that because of the reasons

23 advanced in paragraphs 3.1 to 3.58 of the Prosecution's appeal brief the

24 Trial Chamber erred when applying the test of guilt beyond a reasonable

25 doubt in the context of Rule 98 bis, and it must be noted that of the

Page 52

1 eight decisions to date dealing with motions of acquittal before the

2 International Tribunal, the Jelisic one is the only decision to advance a

3 test of guilt beyond a reasonable doubt to a halfway stage of the

4 proceedings.

5 If the position is accepted that the Trial Chamber erred by acting

6 in that way, then the question before you is whether you should on that

7 basis alone remand the case for a new trial, or whether you still need to

8 take a further step and determine whether the error renders the decision

9 unsafe as advocated by my learned friend.

10 Our position, as I already said, is twofold: We submit that the

11 Appeals Chamber may properly conclude that the Trial Chamber's error goes

12 beyond the corrective ability of the Appeals Chamber and simply cannot be

13 cured by recourse to a theory of no substantial wrong or any other

14 equivalent construction.

15 In the instant case, proceedings were prematurely mutilated by a

16 wrongful decision under Rule 98 bis. The Appeals Chamber may consider

17 that it would be inappropriate to engage in an exercise of speculation as

18 to how the case may have evolved had the Trial Chamber applied the correct

19 standard and decided that there was a case to answer. Instead, the

20 Appeals Chamber may wish to apply a purely objective test to the real

21 issue before it, not whether this Trial Chamber would have acquitted the

22 accused, but whether there was evidence on which a reasonable Trial

23 Chamber could have convicted the accused. If the answer to that question

24 is an affirmative one, the Appeals Chamber may validly conclude that the

25 Prosecution was entitled to have its case answered by the Defence and

Page 53

1 determined by the Trial Chamber acting as a trier of fact. On that basis

2 alone, the Appeals Chamber could, and we would respectfully submit should,

3 order a retrial.

4 Needless to say if the conclusion reached by the Appeals Chamber

5 is that there was no evidence upon which a reasonable Trial Chamber could

6 convict, then the Trial Chamber's error would be reduced to an unfortunate

7 but harmless election of words. That this is not the case is demonstrated

8 by the Trial Chamber's assessment of the evidence, and its weighing of the

9 evidence, and will be clarified by my colleague Geoffrey Nice when dealing

10 with the Prosecution's third ground of appeal.

11 The Prosecution submits that by ordering a retrial without having

12 to evaluate the correctness or substantive justice of the judgement, the

13 Appeals Chamber would ensure at least three beneficial results for ICTY

14 proceedings.

15 First, it will preserve the Appeals Chamber from having to enter

16 into an exercise of speculation as to what position the Defence could have

17 taken; to further assess the evidentiary consequences of that speculative

18 decision; and finally, to determine whether a conviction based on that

19 purely hypothetical scenario would be unreasonable, a task that may be

20 considered to be inappropriate for an appellate court.

21 Second, it would ensure that final decisions on law and fact are

22 subject to the proper two-stage process, first instance and appeal, instead

23 of being reduced to a single stage of discussion as it is happening in the

24 instant case. We consider it to be applicable to the instant case, the

25 position adopted by Judge Shahabuddeen's in an interlocutory appeal

Page 54












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Page 55

1 delivered in the ICTR case Kanyabashi versus the Prosecutor. The Appeals

2 Chamber should not be deciding the issues that have not been discussed

3 before a Trial Chamber therefore without having the assistance and benefit

4 of that Trial Chamber from the decision of which the appeal

5 is sought to be brought. This is particularly important in the

6 case at bar where matters pertaining to the volume and quality of the

7 evidence and the applicable law were simply never discussed before a Trial

8 Chamber.

9 The third benefit of adopting the suggested process is that it

10 would ensure uniform application of Rule 98 bis and discourage Trial

11 Chambers from mingling their functions as triers of law and triers of

12 fact, a very dangerous exercise that has in the instant case caused

13 prejudice to the Prosecution, but that can be fatal to the rights of the

14 Defence if a Trial Chamber considers that it is free to decide whether

15 guilt beyond a reasonable doubt is established and decides in a particular

16 case that it has been established under Rule 98 bis.

17 We accordingly submit that the error of the Trial Chamber must be

18 considered to be a fatal one that cannot be cured by the Appeals Chamber

19 through recourse to auxiliary methods of analysis such as no substantial

20 wrong doctrine, and that, per se, it justifies a retrial.

21 At the same time and as already advanced, the Prosecution submits

22 that the Trial Chamber's failure to give the Prosecution an opportunity to

23 be heard coupled with this flawed determination of the applicable standard

24 under Rule 98 bis must be seen as components of a single process of a

25 improper judicial adjudication.

Page 56

1 By acting the way it did, the Trial Chamber did not only cause

2 irreparable damage in the integrity of the proceedings but also to the

3 quality and reliability of its product. We submit that the quality of a

4 Trial Chamber's decision in a given case relies on the quality of its

5 procedure.

6 In the instant case, the cumulative effect of errors of such a

7 fundamental nature infects the whole process to such an extent that the

8 decision reached simply can no longer be trusted. There is no need to

9 make a determination as to whether the judgement is correct. If it was, and

10 we respectfully submit it is not; it would only be a matter of chance.

11 Simultaneously, this accumulation of fundamental errors impacts so

12 intensively on the integrity and image of the proceedings that both

13 process and decision fail to meet the basic requirement of Lord Hewitt's

14 maxim as recalled by this Appeals Chamber in the Furundzija case. In the

15 instant case, justice was not seen to be done.

16 To conclude, the Prosecution considers that there is no merit in

17 the respondent's contention that the Trial Chamber's failure to apply the

18 correct standard under Rule 98 bis is merely an error of form incapable in

19 and of itself of rendering the decision invalid. For the reasons that

20 have been advanced, the Prosecution submits that the Trial Chamber's error

21 could and should not be condoned ex post facto, as the respondent is now

22 inviting you to do, and that accordingly, a new trial should be ordered.

23 Your Honours, this concludes my submissions on both grounds one

24 and two.

25 JUDGE SHAHABUDDEEN: One question by Judge Wald.

Page 57

1 JUDGE WALD: Mr. Guariglia, as far as the standard, your ground 2,

2 as far as the standard that a Trial Chamber should use in ruling under 98

3 bis on a motion for judgement of acquittal, most of the authorities, apart

4 from those inside the Tribunal, that you have cited to us which adopt the

5 standard which you are proposing to us, namely, that no reasonable Chamber

6 could find that there was not reasonable doubt, most of those decisions

7 deal with the situation where the judge is making the ruling on acquittal

8 but ultimately a jury, a different fact finder, must make the ultimate

9 decision on whether there is reasonable doubt. So it's easy, at least for

10 me, to see why you would not let the judge take over the ultimate jury

11 function subjectively.

12 But why would that same standard apply in a situation where you

13 will have exactly the same fact finders at the end of the trial as at the

14 time of acquittal, and the Prosecution must, as you concede, bear the

15 burden of proving beyond a reasonable doubt?

16 MR. GUARIGLIA: Well, it's a very important question, Your

17 Honour. At the outset, it is true the test is usually adopted by

18 common law jurisdictions and in the context of jury trials. However, in

19 a number of common law jurisdictions, as in the case of the UK when

20 dealing with summary proceedings, even in criminal proceedings before a

21 single judge operating both as trier of fact and trier of law, the

22 standard remains the same. And we would submit that the

23 standard remains the same in order to ensure basic principles of

24 predictability and legal certainty in criminal proceedings.

25 The moment standards are getting interchangeable, criminal

Page 58

1 proceedings start getting unpredictable. If a Trial Chamber has the

2 authority to decide to advance a determination of guilt beyond a

3 reasonable doubt to the Rule 98 bis stage, then that operates both ways.

4 It will eventually operate against an accused.

5 If the Trial Chamber is authorised to embark into that kind of

6 analysis, a Trial Chamber is then free to determine halfway through the

7 proceedings that guilt beyond a reasonable doubt has been established.

8 That will create automatically a burden on the accused to disprove that

9 premature finding of guilt beyond a reasonable doubt, to persuade the

10 Trial Chamber that, contrary to its finding, the accused is innocent.

11 Now, this would be contrary to the Statute of this institution

12 under which an accused does not have such a burden. But the problem is

13 that if there is no certainty as to what standard would be applied in the

14 context of Rule 98 bis, we engage in a vicious circle because the burden

15 of persuasion that the Prosecution, for instance, will ordinarily use in

16 the context of a Rule 98 bis scenario is much lower than the burden of

17 persuasion that you will use at the end of the case during closing

18 arguments where the Prosecution will marshal both evidence and law for the

19 purpose of persuading a Trial Chamber that guilt beyond a reasonable doubt

20 has been established.

21 If the standard under Rule 98 bis is ambiguous, we also get into

22 this vicious circle in which, sooner or later, an accused will be found

23 guilty beyond a reasonable doubt in the middle of trial proceedings and

24 not where it should properly be found, if appropriate, upon completion of

25 trial proceedings after all evidence has been presented and closing

Page 59

1 arguments from both sides have been heard.

2 THE INTERPRETER: Microphone to the president.

3 JUDGE SHAHABUDDEEN: Let me try a question or two, Mr. Guariglia.

4 Is my impression correct that you are taking an objection to the

5 references by the Trial Chamber to a standard of proof of guilt beyond

6 reasonable doubt when making a decision midway, as it were? Am I right in

7 that impression?

8 MR. GUARIGLIA: If I understood Your Honour's question correctly,

9 yes, our objection is that the Trial Chamber advanced the ultimate test to

10 a halfway determination.

11 JUDGE SHAHABUDDEEN: All right. Is it reasonably possible to

12 banish that notion altogether from the decision-making process at that

13 stage? What I mean to put to you is this: There are various ways of

14 putting the matter, mind you, but one way, traditional way, is to ask this

15 question, whether the Prosecution's evidence, given at its highest, could

16 support a guilty verdict by a jury properly directed.

17 Now, if you focus on the words "properly directed," aren't we

18 speaking there of a tribunal of fact being properly directed to this

19 proposition, that you cannot find guilt except that it is proved beyond

20 reasonable doubt? In other words, at this midway stage, is there a

21 difference between making a present finding of guilt beyond reasonable

22 doubt and saying that the Prosecution evidence, given at its highest,

23 would not enable a tribunal of fact to find guilt on the basis of a

24 standard of proof of guilt beyond reasonable doubt?

25 MR. GUARIGLIA: The answer to Your Honour's question is, yes,

Page 60

1 there is a difference. It's a different intensity of the analysis of the

2 evidence. And this is very clear in the context of the decisions that

3 have been reached in this institution under Rule 98 bis where one can see

4 the Trial Chamber's efforts not to affect themselves with a premature

5 in-depth evaluation of the evidence- the clearest example perhaps is that the

6 Trial Chamber confines its analysis to determine whether there is material

7 upon which the inference could be

8 drawn at the end of the case of guilt beyond a reasonable doubt in matters

9 pertaining to 7(1) criminal liability. But the Trial Chambers do not make

10 that inference. They refrain from making that inference. They just say,

11 "There is some material. On the basis of this material at end of the

12 case we may, and then again, we may not, draw these inferences."

13 So using language from the Kordic decision, Trial Chambers

14 segregate their functions as triers of fact and triers of law. They

15 preserve themselves for triers of fact for the final stages of the

16 proceedings, and they analyse, if you want to put it this way, more

17 superficially the evidence at that stage. And we think that is

18 fundamental that this division be represerved.

19 JUDGE SHAHABUDDEEN: Let me ask a follow-up question like this:

20 You have referred to the adversarial character of our proceedings. Would

21 I be right in supposing - correct me if I'm wrong - that we must have

22 regard to the difference between substance and form? Were the members of

23 the Trial Chamber non-common law lawyers?

24 MR. GUARIGLIA: I think so.

25 JUDGE SHAHABUDDEEN: Well, now, is that a fact to be borne in mind

Page 61

1 this way: The substance of the law needs to be followed, but in reading

2 what they said, should we bear in mind that the Trial Chamber in question

3 was not a common law set of lawyers, so they may have used words which a

4 common law lawyer would not normally use without intending to depart from

5 the substance of the law. What do you say?

6 MR. GUARIGLIA: Well, at the outset, let me make clear, Your

7 Honour, I'm a civil law lawyer myself.


9 MR. GUARIGLIA: Second part of your question, if I understand your

10 question correctly, is whether the Trial Chamber simply applied the wrong

11 label to the correct operation. And we would say no, it goes beyond

12 that, and it transpires with clarity from the judgement, Your Honour. It

13 is clear that the Trial Chamber knew what it was doing, knew what test it

14 was going to apply and did intend to apply that test. And it did apply

15 the test. It embarked on a detailed analysis of the evidence. It weighed

16 the evidence. It looked at the inferences that it thought it could draw

17 in that decision and thought it could not draw from that existent body of

18 evidence. We respectfully submit that it wasn't that type of error.

19 JUDGE SHAHABUDDEEN: Mr. Guariglia, I'm indebted to you for your

20 response, and I bear in mind that Mr. Clegg has conceded that not only did

21 the Trial Chamber adopt the wrong standard, but it misapplied this

22 standard to the facts. Is that correct, Mr. Clegg?

23 MR. CLEGG: Our concession is that the words delivered by the

24 Trial Chamber misstate the appropriate standard of proof at that stage of

25 the trial, but we do not concede that they came to the wrong conclusion,

Page 62

1 nor had they expressed themselves differently would there have been no

2 ground of appeal for the Prosecutor to make.

3 JUDGE SHAHABUDDEEN: Yes. What I have in mind -- thank you,

4 Mr. Clegg, for that clarification.

5 What I have in mind, Mr. Guariglia, is this: No doubt reading the

6 oral judgement, I take it it's the oral judgement which is really

7 pertinent to this matter, the judgement delivered on 19th of October.

8 There are passages which support your thesis, and I do have regard to your

9 very well-taken point that in the end, on matters of law it is the Court

10 which has to decide, notwithstanding any agreement by the parties.

11 Now, when you read that oral decision, maybe there are elements in

12 it which could support the thesis which you are propounding, but let me

13 read to you a passage or two and test you on these passages.

14 Now, I have before me the transcript of the 19th of October, 1999,

15 the English text, at page 2327. You have found it?

16 MR. GUARIGLIA: Yes, Your Honour.

17 JUDGE SHAHABUDDEEN: The last paragraph on that page reads thus.

18 The Presiding Judge is speaking. He says:

19 "The Judges then reviewed all of the evidence put forth by the

20 Prosecution. From their deliberations, they concluded that even without

21 having to hear the possible arguments put forth by the Defence, the

22 accused could not, could not be recognised as guilty of the crime of

23 genocide."

24 Were they, by the use of that language, to be understood as making

25 a present judgement on guilt or innocence or were they to be understood as

Page 63

1 saying, "on this evidence, no reasonable tribunal of fact could bring in a

2 verdict of guilty beyond a reasonable doubt"?

3 Then at page 2332, they say this: They seem to make a distinction

4 between the two categories of determination, that is, making a present

5 finding of guilt and saying that on the evidence, no reasonable tribunal

6 of fact could, in future, as it were, bring in a finding of guilt.

7 At page 2332, second paragraph, they say:

8 "Moreover, one must not confuse the notion of acquittal with that

9 of a lack of evidence."

10 That is, no Prosecution case.

11 So they have in mind a distinction which is pertinent. They say

12 this refers to a Prosecution argument which comes from another case which

13 this Tribunal heard. That is the Blaskic case.

14 Then they go on:

15 "In the second case, it is sufficient for the Trial Chamber to

16 consider that the Prosecutor has brought in enough proof for the Defence

17 to be in -- to have a need to answer, that is, there was a case to

18 answer."

19 And if you look at the French text, in the French formulation it

20 becomes clear that that was the test they were using, whether on the

21 evidence presented by the Prosecution, if accepted, a reasonable tribunal

22 of fact could, in future, bring in a verdict of guilty.

23 Then at page 2337, you have this in the second full paragraph:

24 "In the case in point, the Judges consider that the Prosecutor

25 has not provided the sufficient proof which would allow us to establish

Page 64

1 beyond a reasonable doubt that Jelisic planned ..." et cetera, et cetera,

2 et cetera.

3 Now, bearing in mind that these were not common law Judges but

4 non-common law Judges operating within an adversarial system and who,

5 therefore, could not be expected to have the verbal orientation of normal

6 common law Judges, how do you construe those three passages?

7 MR. GUARIGLIA: Your Honour, I would say in the light of those

8 passages, the -- my basic conclusion would be that the Trial Chamber's

9 fundamentation is very erratic in a number of ways and it is highly

10 unclear.

11 If I can draw your attention to the same passage where you're --

12 in paragraph -- on page 2338, 2337, I think, in your version of the

13 transcript, when saying that: "The Prosecutor has not provided the

14 sufficient proof that would allow us to establish beyond a reasonable

15 doubt that accused Jelisic planned, incited, ordered," et cetera, the

16 passage finishes by, "and this doubt must be found to the benefit of the

17 accused," precisely what happens in the context of the determination of

18 guilt beyond a reasonable doubt that is the clear distinction between a

19 Rule 98 bis scenario where if you want to put it this way, the evidence is

20 seen in the most favourable light to the Prosecution, whereas in the context

21 of a final determination of guilt beyond a reasonable doubt, the doubt always

22 goes in the benefit of the Accused, in dubio proreo.

23 But further, Your Honour, we think that the oral judgement must be

24 seen in conjunction with the written judgement, and in the written

25 judgement you will find, at paragraph 15, that the Trial Chamber concludes

Page 65

1 that it was not possible to conclude beyond a reasonable doubt that the

2 choice of victims arose from the precise logic to destroy represented

3 figures from the Muslim community.

4 It says, paragraph 93: "It had also not been established beyond a

5 reasonable doubt whether the accused killed at Luke camp under orders."

6 Paragraph 95: "The Prosecution had not provided evidence that could

7 establish beyond a reasonable doubt that there was a plan to destroy" --

8 JUDGE SHAHABUDDEEN: That could establish, you see.

9 MR. GUARIGLIA: Allowing the Chamber to establish.

10 JUDGE SHAHABUDDEEN: Mr. Guariglia, let me ask you a question like

11 this: Is it correct to assume that even under the strict common law code,

12 as it were, a Trial Judge is absolutely prevented from considering a

13 question of doubt at this midway point? Is there perhaps a situation in

14 which exceptionally he could say that the case for the Prosecution has

15 completely broken down either through cross-examination or

16 inconsistencies, et cetera?

17 It's an exceptional situation, but in that exceptional situation,

18 is he entitled to say, "Well, on this evidence, no reasonable tribunal of

19 fact is likely to bring any verdict of guilty beyond a reasonable doubt,"

20 which standard will entitle the Trial Chamber in futuro to resolve

21 questions of doubt? Is that possible?

22 MR. GUARIGLIA: Your Honour is absolutely correct, but we do not

23 see that as exceptions to a provision to apply an inference in favour of the

24 accused or to advance somehow the test beyond a reasonable doubt. It's

25 simply that the Prosecution case has broken down and there is no case to

Page 66












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Page 67

1 answer.

2 JUDGE SHAHABUDDEEN: All right. Well, Mr. Guariglia, I wish you

3 to understand me as merely putting to you questions for the benefit of

4 your reaction and not as expressing any concluded opinion on the subject.

5 I think that's normally understood by the bar.

6 MR. GUARIGLIA: That's clearly understood.


8 MR. GUARIGLIA: Thank you, Your Honours.

9 Your Honours, I will leave then the floor to Mr. Morten Bergsmo,

10 who will address you on the legal aspects of the Prosecution's third

11 ground of appeal.

12 [Appeals Chamber confers]

13 JUDGE SHAHABUDDEEN: Would it be the sense of the Bar that this

14 would be an appropriate moment to take a break, in between speakers?

15 Thank you. Well, 15 minutes then. We'll reassemble, let us say, at a

16 quarter past the hour. All right.

17 --- Recess taken at 10.55 a.m.

18 --- On resuming at 11.18 a.m.

19 JUDGE SHAHABUDDEEN: So now we will hear from Mr. Bergsmo.

20 MR. BERGSMO: Yes.

21 JUDGE SHAHABUDDEEN: Do forgive me if I don't pronounce the name

22 correctly. You're going to speak on the third ground of appeal?

23 MR. BERGSMO: That's correct, Your Honour.


25 MR. BERGSMO: Your Honours, I seek to present three sets of

Page 68

1 observations on section 4(B) in the brief of appeal of the Prosecution,

2 section 4(B); that is, I will address the requisite mental state under

3 Article 4 of the Statute. My learned friend and colleague, Mr. Nice, will

4 address the other subsections of section 4 in our brief after I have

5 concluded my remarks.

6 The three sets of observations I seek to present are, first, a

7 clarification of what the submission of the Prosecution is in section

8 4(B); second, an explanation why the Prosecution does not object to

9 describing the mental state requirement under Article 4 of the Statute as

10 a special or particular or maybe even specific intent requirement; and

11 thirdly, some remarks on the approach of interpretation taken in section

12 4(B) of our brief. I estimate that it will take approximately 20 to 22

13 minutes to complete my remarks.

14 Your Honours, I proceed to the first set of observations. The

15 Prosecution does not ask the Appeals Chamber to change the international

16 law of genocide. The Prosecution is seeking a clarification from the

17 Appeals Chamber of the requisite mental state standard under Article 4 in

18 response to two propositions placed before the Chamber in paragraph 4.9,

19 in paragraph 4.9, of the Prosecution brief. I'm referring to categories

20 (b) and (c) in paragraph 4.9.

21 The first proposition which we find in category (b) is as

22 follows: The Prosecution submits that if an accused commits genocidal

23 conduct consciously and with a will to act, and this accused knows that he

24 is indeed destroying a group as such, then such an accused meets the

25 mental state standard under Article 4 of the Statute. This proposition

Page 69

1 does not contain any element of probability. It refers to knowledge of

2 the actual destruction, in whole or in part.

3 The second proposition contained in category (c) in paragraph 4.9

4 is as follows: The Prosecution submits that if an accused who is an aider

5 and abettor, who is an aider and abettor, to an ongoing objectively

6 existing genocide, that is, a genocide that exists independently of the

7 aider and abettor; and this accused commits his conduct of aiding and

8 abetting consciously and with a will to act; and this accused knows that

9 there is an ongoing genocide and that his conduct is a part of that

10 genocide, but the accused only knows that the likely consequence of his

11 conduct of aiding and abetting is a contribution to the ongoing genocide;

12 the Prosecution submits in category (c) in paragraph 4.9 that such an

13 accused meets the requisite mental state standard under Article 4 of the

14 Statute.

15 Categories (b) and (c) in paragraph 4.9 of our brief means what I

16 have just described, nothing more. Any reference to "general intent" in

17 section 4(B) of our brief and in paragraph 4(6) of our brief means

18 only what I have now described in categories (b) and (c). Nothing else.

19 Your Honours, both categories (b) and (c) assume that the accused

20 committed the genocidal conduct or, if you like, the actus reus

21 consciously and with will to act. That is, the mental state in both

22 categories (b) and (c) contains two aspects: The first is the narrow mens

23 rea directly relevant to the genocidal conduct of the accused which must

24 have both a cognitive and volitive component. If you like, the accused

25 must have committed the conduct consciously, which refers to the cognitive

Page 70

1 component, and with a will to act, which refers to the volitive component,

2 that of volition.

3 The second aspect of the mental state is the wider mental state of

4 destroying a group as such which requires, in the submission of the

5 Prosecution, at least a cognitive component. That could be knowledge of

6 actual destruction being caused in whole or in part by the accused or,

7 alternatively, probable destruction in the form of destruction as a likely

8 consequence.

9 In other words, Your Honours, there must be both a cognitive and a

10 volitive component in the mental state of a person accused of genocide in

11 the view of the Prosecution.

12 Insofar as an accused has only one mind and normally one relevant

13 mental state, the Prosecution submits that it is not necessary for the

14 applier of the law to determine which aspect of the mental state the

15 volitive component refers to. As a matter of fact, it may not be possible

16 to do so. In reality, the mental state is one, and its different

17 components merge.

18 The Trial Chamber's position on the requisite mental state under

19 Article 4 of the Statute appears to be that only dolus specialis meets the

20 test. If that is the case, the Prosecution respectfully submits that the

21 Trial Chamber erred. In any event, as my learned colleague Mr. Nice will

22 explain when I have completed my remarks, the accused Goran Jelisic in

23 this case met the higher standard of dolus specialis.

24 In a nutshell, the question before the Appeals Chamber is whether

25 the mental state of the accused, which must contain a cognitive and a

Page 71

1 volitive component with regard to the actus reus, must also contain a

2 volitive component with regard to the mental state to destroy a group as

3 such, and not only a cognitive component.

4 In other words, does Article 4 of the Statute protect against

5 genocidal conduct when the accused had the desire or purpose to destroy a

6 group as such, but not against such conduct when the accused knew that he

7 was indeed destroying the group or that the likely consequence was

8 contribution to an ongoing destruction ?

9 "Conscious desire" does not always require knowledge that the

10 destruction is occurring or is a likely consequence, but the accused must,

11 under the Motion of "conscious desire", know that he desires. That is the

12 cognitive component in the notion "conscious desire" in the view of the

13 Prosecution.

14 Your Honours, the Prosecution submits that the cynical mind that

15 knows is as dangerous, if not more, than that which desires destruction.

16 The mind that knows is normally the mind that knows how you bring about

17 the result; the executive mind, if you like.

18 This brings me to my second set of observations.

19 The Prosecution does not object to the use of the terms "special

20 intent" or "particular intent" or maybe even "specific intent" in

21 describing the mental statement requirement under Article 4. The

22 Prosecution cautions against any attempt to dilute or undermine the mental

23 state requirement for genocide. But the reason why the mental state

24 requirement under Article 4 is special is not because of the use of the

25 word "intent" but because of the use of the words "destroy" and "group"

Page 72

1 and the two combined.

2 It is special because of the particular combination of the two

3 concepts. The wording of Article 4 says "destroy," Your Honours, not

4 attack, discriminate, or persecute. It says "group as such", not

5 civilian population, non-combatants, or just civilians. No other

6 international crime within the Statute of the Tribunal contains these two

7 words and/or their combination. They make the mental state requirement under

8 Article 4 special, not the word "intent."

9 However, whereas the words "destroy" and "group" refer to the

10 scope of the mental state, if you like, what the mind must contain, the

11 question before the Appeals Chamber in this appeal concerns the degree or

12 quality of the mental state under Article 4, if you like, what the balance

13 and degree of cognitive and volitive aspects of the mental state must be.

14 If you like, the degree of intent refers to the light of the mind

15 whilst the term scope of intent refers to what that light must be

16 directed at. This distinction is well established in criminal legal

17 theory, at least in some civil law countries, and the Prosecution submits

18 that it flows necessarily from a reasonable reading of the logical

19 construction of the mental state formulation in Article 4 of the Statute.

20 That brings me to the third set of observations which go to the

21 approach of interpretation taken in the Prosecution's submission in

22 section 4(B).

23 The Prosecution submits that the mental state formulation in

24 Article 4 does not mean only dolus specalis. This position rests on

25 a combined textual, teleological, and logical contextual interpretation of

Page 73

1 Article 4. These approaches to interpretation are rooted in customary

2 international law as expressed in Article 31 of the Vienna Convention on

3 the Law of Treaties, which we can apply, at least by analogy, as confirmed

4 in Tribunal jurisprudence.

5 Let us look at the three approaches briefly. The logical

6 contextual approach is: as explained in my previous sets of observations:

7 The word "intent" in Article 4 must be interpreted in its context and its

8 context is i"ntent to destroy, in whole or in part, a national,

9 ethnical, racial or religious group, as such."

10 It is that context which provides for the speciality of the mental

11 state under Article 4. The words "destroy" and "group" combined make this

12 a distinct mental state different from all other international crimes.

13 Secondly, a teleological interpretation of Article 4 of the

14 Statute provides that Article 4's mental state requirement cannot just be

15 dolus specalis. As to the exact object and purpose of the 1948 Genocide

16 Convention from which Article 4 of the Statute is taken, I quote from the

17 1951 Advisory Opinion of the International Court of Justice on

18 reservations to the Genocide Convention:

19 "The Convention was manifestly adopted for a purely humanitarian

20 and civilising purpose. It is indeed difficult to imagine a convention

21 that might have this dual character to a greater degree, since its object

22 on the one hand is to safeguard the very existence of certain human groups

23 and on the other to confirm and endorse the most elementary principles of

24 morality. In such a convention the contracting States do not have any

25 interests of their own ; they merely have, one and all, a common interest,

Page 74

1 namely, the accomplishment of those high purposes which are the raison

2 d'etre of the Convention."

3 The continued existence of human groups may be the highest legal

4 interest which the international legal order recognises. The Prosecution

5 submits that an interpretation of Article 4 of the Statute, which

6 restricts the mental state requirement to just dolus specalis will

7 undermine the object and purpose of Article 4 and the Genocide

8 Convention. It could even significantly reduce the deterrent function of

9 that Convention.

10 Thirdly, Your Honours, the Prosecution submits that also a

11 contextual interpretation of the word "intent" in Article 4 provides that

12 it is not just dolus specalis that falls within its scope. The ordinary

13 meaning of intent, as opposed to the technical legal meaning which one

14 might have in some national jurisdictions, is not dolus specalis. This is

15 the case in at least three of the equally authentic languages of the

16 Genocide Convention, English, French, and Spanish. I repeat, it is not

17 the technical legal usage that matters.

18 This position taken by the Prosecution is not a manifestation of

19 hypertextual speculative interpretation; far from it.

20 Your Honours, the Prosecution submits that either of these three

21 approaches to interpretation, certainly if they are combined, would support

22 the Prosecution's submission that the mental state formulation of

23 Article 4 does not only mean dolus specalis, but that categories (b) and

24 (c) in 4.9 of the Prosecution brief fall within Article 4 as well.

25 It is the position of the Prosecution that it is not necessary to

Page 75

1 resort to supplementary means of interpretation to reach this conclusion.

2 The conclusion is reasonable and it falls squarely within the limits of

3 the principle of nullum crimen sine lege.

4 If the Court were to find it necessary to resort to supplementary

5 means of interpretation, the Prosecution submits that such sources should

6 recognise the distinction between the scope and degree of mental state in

7 order to be directly relevant to the question before the Chamber.

8 Furthermore, if any sources are in effect inconsistent with the object

9 and purpose of Article 4 and the Genocide Convention, they cannot be

10 given decisive weight alone or combined with other similar sources.

11 There are time constraints which makes it difficult for me to

12 review some of the supplementary sources that are in support of our

13 position, but I simply refer to Article 30 of the ICC Statute, the ICC

14 elements of crimes document relevant to genocide, and the final report of

15 the Commission of Experts.

16 We also have support in the published writings, or about to be

17 published writings, at least in one case, of eminent academics with

18 recognised expertise in the field, and I am referring to, inter alia,

19 Professor Triffterer and Professor Gil Gil.

20 In conclusion, Your Honours, the Trial Chamber's judgement appears

21 to suggest that only a normal person with a genocidal motive and

22 knowledge of a genocidal plan can meet the mental standard under Article

23 4. Where does that leave the cynical, willing executioner without whom

24 genocides do not and cannot occur?

25 The Appeals Chamber should not, we respectfully submit, provide a

Page 76

1 restrictive precedent on the scope of mental state under Article 4 which

2 would leave the cynical willing executioners beyond the reach of the

3 Statute and the Genocide Convention. Your Honours, the leap from proof of

4 knowledge to proven desire or purpose must not become a black hole through

5 which the object and purpose of Article 4 and the Genocide Convention is

6 drained.

7 In short, the case of the Prosecution is, in three points: One,

8 the Court may refer to the mental state requirement under Article 4 as

9 "special" or "particular" because of the words "destroy" and "group" and their

10 combination in the actual wording of the Article. Two, the Court should not

11 and need not lower the mental state requirement for genocide under Article

12 4. It simply needs to give effect to the unique words of "destroy" and

13 "group" in light of the object and purpose of the provision and the

14 Genocide Convention. Three, the Chamber should hold that categories (b)

15 and (c) in paragraph 4.9 of the Prosecutor's brief meet the mental state

16 requirement of Article 4 of the Statute; that is, categories (b) and

17 (c) as they are expressed in the brief and as they have been explained by

18 me in my remarks today.

19 That concludes my initial observations, Your Honours.

20 JUDGE WALD: Counsel, I wonder if you would clarify one thing for

21 me. There are several commentators, expert commentators on genocide, with

22 whom I'm sure you're familiar, who have suggested that knowledge is

23 sufficient. That would be your, roughly your categories (b) and (c). In

24 other words, knowledge that one's intentional acts will bring about the

25 consequences of destruction, in whole or in part, of the designated group,

Page 77

1 or your (c) goes beyond that into likely consequences.

2 Do you identify yourself or affiliate yourself with that point of

3 view that knowledge of the consequences, the consequences being

4 destruction of the group in whole or in part, is sufficient; or there is

5 another group of commentators which suggest that from that degree of

6 knowledge one can infer intent?

7 MR. BERGSMO: Your Honour, the Prosecution is not putting forward

8 a general position on knowledge vis-à-vis the mental state requirement in

9 Article 4. It is only suggesting that categories (b) and (c) in paragraph

10 4.9, that is in the circumstances that I described, knowledge of actual

11 destruction suffices- and in category (c), for an aider and abettor, and

12 only for an aider and abetter, knowledge that the likely consequence of

13 your conduct is a contribution to an ongoing, objectively existing

14 genocide which the aider and abetter has knowledge of and in the case

15 where the aider and abettor knows that his conduct is a part of that

16 independently existing genocide.

17 JUDGE WALD: So just to follow up, and I'll complete it. I

18 understand the purport of your argument. I understand this is not

19 particularly this case, but the purport of your argument would be that if

20 one had no bad feelings or enmity against a particular group, but that --

21 but knew that what the actor was going to do was, in fact, going to

22 destroy, in whole or in part the group, he was completely neutral about

23 his feelings about the group, he was doing it for a completely different

24 reason to get a hold of the territory, whatever, he didn't care about the

25 group, but knew that the consequences of his action would be to destroy

Page 78












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Page 79

1 the group, then that would satisfy your interpretation of Article 4,

2 genocide?

3 MR. BERGSMO: Not exactly, Your Honour. You used the words "would

4 be" and category (b) does not contain any element of probability.

5 JUDGE WALD: I understand that.

6 MR. BERGSMO: It is higher than the standard of Article 30 of the

7 ICC Statute. It refers to a knowledge of an actual result.

8 JUDGE WALD: Right. But you have no, you have no need for, in

9 either (b) or (c), any evil motive, any enmity between the actor and the

10 group.

11 MR. BERGSMO: The position of the Prosecution is that in a strict

12 sense, there need not in categories (b) and (c) be a volitive component in

13 the mind of the perpetrator. He need not desire --

14 JUDGE WALD: I understand.

15 MR. BERGSMO: -- the result.

16 JUDGE WALD: Thank you.

17 JUDGE SHAHABUDDEEN: Mr. Bergsmo, may I ask you this question:

18 Your submissions arise, really, out of the reference by the Trial Chamber

19 to the concept of dolus specialis. Is that right?

20 MR. BERGSMO: Yes.

21 JUDGE SHAHABUDDEEN: Yes. Now, should I take it that that term

22 applies to the mental state of the accused and looks to an especially high

23 degree of his volition.

24 MR. BERGSMO: I can only answer yes to the second part of your

25 question because, again, it is the submission of the Prosecution that what

Page 80

1 makes the mental state requirement under Article 4 special is not the

2 degree required or the quality of intent required, but it is the

3 references to the words "destroy" --

4 JUDGE SHAHABUDDEEN: I appreciate that. I'm speaking abstractly

5 now.


7 JUDGE SHAHABUDDEEN: Without reference to the particular

8 terminology in the Statute, you see, does dolus specialis normally pertain

9 to the mental state of the accused, and does it look to a specially high

10 degree of his volition?

11 MR. BERGSMO: It refers to the mental state of the accused, and

12 for the purposes of our submission in section 4(B), we have referred to

13 dolus specialis as "conscious desire" or the act of consciously desiring,

14 and whether that is a particularly high degree of mental state is not

15 clear.

16 I don't think there is a recognised definition of the term "dolus

17 specialis" in international criminal law. Neither is there a general

18 principle of law, we would submit, that enjoys support in national

19 jurisdictions from all the main legal traditions that would give us a

20 clear definition of the term "dolus specialis." But clearly, by using the

21 English version "conscious desire," we are referring to a clear volitive

22 component in that mental state.

23 JUDGE SHAHABUDDEEN: Let me ask you this: Is it possible to read

24 the judgement this way: All right, the Trial Chamber referred to the

25 concept of dolus specialis, but in context, was it referring to the state

Page 81

1 of mind of the actor, or was it referring to intent in relation to the

2 forbidden -- the specifically forbidden acts? Can there be a distinction

3 between two things, a specific intent in the sense of an intent to do

4 specifically forbidden acts, and a special intent in the sense of a

5 particular state of mind?

6 MR. BERGSMO: Yes. This is what we have referred to as the two

7 aspects of the mental state, and we are suggesting that for the genocidal

8 conduct, the actus reus, there must be both a cognitive and volitive

9 component;whereas for the broader mental state, bringing about the destruction

10 of the group as such, there need only be a cognitive component in the

11 submission of the Prosecution.

12 If one applies the term "dolus specialis" in the meaning of

13 conscious desire, it would seem that the desire, the volitive component,

14 would only refer to the bringing about of a destruction, in whole or in

15 part, of the group. But as I said earlier, it would seem to the

16 Prosecution that in reality, since we are talking about one mind and one

17 mental state of the accused, the different components of the mental state

18 will merge into one.

19 JUDGE SHAHABUDDEEN: Mr. Clegg or his predecessor has pointed out,

20 I think, that that term occurred only once in the judgement. What would

21 you say to this question: Is it possible to read the judgement in a way

22 which says this, that the Trial Chamber in referring to the concept of

23 dolus specialis was really referring to a specific intent to commit the

24 specifically forbidden acts and was not referring to any particular state

25 of mind?

Page 82

1 MR. BERGSMO: It would seem to the Prosecution that a specific

2 intent to commit certain acts is a manifestation of the mind of the

3 accused. And if the Trial Chamber used the term "dolus specialis" to

4 describe the fact that the accused had to have committed the actus reus

5 with will to act, and the Trial Chamber is not requiring that there be a

6 desire or a conscious desire with regard to bringing about the result of

7 destruction, then it would seem that the Trial Chamber -- the view of the

8 Trial Chamber was in accordance with the position of the Prosecution.

9 JUDGE SHAHABUDDEEN: Thank you, thank you. That is all the

10 assistance I need. Thank you very much.

11 MR. BERGSMO: I will then give the floor to my learned colleague

12 and friend, Mr. Geoffrey Nice, who will address the other aspects of

13 section 4 of the Prosecution brief.

14 MR. NICE: Your Honours, I have asked that you may have available

15 to you for the purposes of my submissions not only the judgement of the

16 Court, but also the annex to our brief. It's not the public format, but I

17 am alert to the initials of all the witnesses who gave evidence in closed

18 session, so I will not offend the rules of the Tribunal in drawing your

19 attention to passages within that annex.

20 And it is my function today to deal with, to the degree necessary,

21 the facts of or evidence in the case. And I put it in that way because,

22 of course, all these arguments are without prejudice to our basic

23 submission that the flawed procedures in themselves require that the case

24 should be reheard. But nevertheless, because we cannot know how the

25 Chamber will resolve its decisions, we make such arguments as we can to

Page 83

1 assist at this stage.

2 The Chamber may think, and it is my submission, that it is

3 appropriate not only to look at the material, the evidence, in the case,

4 but also to focus on the process whereby the Trial Chamber dealt with the

5 evidence. For if and insofar as it is clear that the process was flawed,

6 why, then, the more flawed the process, the less weight it would be

7 appropriate for this Chamber to place on the Trial Chamber's decision and

8 the more impossible it is, in our submission, to sustain that conclusion.

9 These cases, of course, as we've seen, pass from lawyer to lawyer,

10 and I'm happy to be here to provide some aspect of continuity, for

11 although I did not start the case - it was started by Mr. Teree Bowers - I

12 took it over at a very early stage with Mr. Vladimir Tochilovsky and saw

13 it through to its conclusion, and that gives me, if appropriate in due

14 course, the opportunity to assist the Chamber in response to such

15 complaints made by the accused in respect of the Trial Chamber's conduct

16 as may still be being maintained.

17 But at this stage of the argument, can I make the point that must

18 have been obvious to this Chamber itself, namely, that in and insofar as

19 there is material to show that the Trial Chamber was overconcerned with

20 matters of timetable as revealed in the Defence complaints, why, of

21 course, those matters lend some support to our very great concerns about

22 what happened here in the improper, the wrongful abbreviation of the full

23 process.

24 Your Honours, for a case of this general type, there will be

25 categories of evidence, and, loosely, you will be looking for evidence of

Page 84

1 what's been done generally of which the defendant's acts may be a part,

2 then you will be concerned with the evidence of what the accused himself

3 did, and, finally, you will be concerned with evidence of his state of

4 mind.

5 In this case, there was a very substantial quantity of material in

6 all three categories. Indeed, the very quantity of material, its clarity

7 and its strength, the Chamber may conclude, would have made this the case

8 of a willing, but as it is sometimes described, low-level execution to be

9 tried for genocide, for rarely in the case of such a potential accused

10 could the evidence have been so complete. And as the Chamber knows, the

11 decision to charge with genocide was made by the Prosecutor,

12 Justice Arbour, confirmed by a member, indeed, of this Chamber, and on

13 evidence that was not only in accordance with what was then presented but

14 more substantial in various respects. And many lawyers and judges might

15 have relished the opportunity of discussing the law and facts of a case,

16 although that pleasure could not, of course, in itself justify the

17 bringing of such a case. But as the Chamber knows - and these are the

18 conclusion of my opening remarks - but as the Chamber knows more

19 materially, the surviving victims and the bereaved and the others in the

20 Brcko area and elsewhere who may use the word "genocide" to describe their

21 suffering, have a legitimate interest and had a legitimate interest and

22 expectation in this case being fully and openly litigated. And as we

23 approach the process of dealing with the facts, the significance of which

24 I have already pointed, the Chamber may want to have at least in mind that

25 when it was clear that the Trial Chamber was about to make a final

Page 85

1 determination, the Prosecution alerted it, by its motion of the 15th of

2 October, 1999, to the difficulties it was facing and the problems it might

3 encounter.

4 I don't know if the Chamber has had an opportunity to consider

5 that particular motion, but I can summarise for you its effect.

6 Not only did it remind the Trial Chamber that 98 bis was new, that

7 the Prosecution had been given no indication of the Trial Chamber's

8 concerns, not only did it notify the Trial Chamber of the need to hear

9 argument and of the necessarily incomplete state of the Prosecution's --

10 JUDGE SHAHABUDDEEN: Mr. Nice, what limb are you on?

11 MR. NICE: These are my introductory remarks, and they touch, as I

12 suggested, on this issue, but I'll repeat it because I may not have made

13 it clear.

14 JUDGE SHAHABUDDEEN: I'll tell you why I ask the question. I see

15 from this guidance sheet passed to us this morning by Mr. Yapa that you

16 would be speaking to us of the evidence relating to the genocidal intent

17 of Goran Jelisic.

18 MR. NICE: Your Honour, I'm going to do that, but I hope I'm going

19 to be forgiven if it's a little wider than that, because I'm dealing with

20 the facts and the approach to facts quite generally, because for reasons

21 that I hope will become clear, it's our submission that the Chamber has

22 not only got to consider the evidence, the material, but it's got to

23 consider the approach for the reason I advanced a few minutes ago about a

24 flawed approach undermining the value that could be placed by this Appeals

25 Chamber on the Trial Chamber's approach and decision.

Page 86

1 Just briefly returning to the motion of the Prosecution of the

2 15th of October, 1999, not knowing what the Trial Chamber's concerns were

3 but having to do our best to assess what might have been at stake, they

4 were specifically alerted to the test being the test not of satisfaction

5 beyond reasonable doubt. It's set out in the October 15th motion. It was

6 suggested that there was no reason to distinguish between level of

7 participants in a chain of authority as between those who were and those

8 who were not vulnerable to the charge of genocide. They were alerted to

9 the case of Nikolic, in this court, and they were alerted to complicity in

10 genocide being, in the argument of the Prosecution, closely identifiable

11 to aiding and abetting for which the defendant had been tried.

12 So it was with that forewarning that the Chamber took the course

13 it did, the Prosecution having made it quite clear that our case was

14 incomplete.

15 Now, Your Honours, I turn to what actually happened and then we'll

16 look at some of the evidence together, if we may.

17 Of course we say that they applied the wrong test to the

18 evidence. And as we look at the evidence in certain areas, Your Honours

19 may find that an irresistible conclusion because it can only be a simple

20 case of there being no case to answer when there is simply no evidence on

21 a particular topic. A routine burglary, no evidence that the accused is

22 the burglar. It doesn't matter how the judge, at the end of the

23 Prosecution case, describes the test he applies, one way or another, no

24 evidence that it's the man. No case; the case must stop.

25 That's simply not the situation here. In all areas, a very

Page 87

1 considerable body of material. It may be susceptible to arguments going

2 one way or another, but material upon which on any reckoning a Tribunal

3 properly directing itself could have reached the conclusion that the

4 Prosecution was going to invite the Tribunal to reach. So that it's

5 either a question, as I hope to persuade you, that they inevitably applied

6 the wrong test or alternatively that they simply failed --

7 JUDGE SHAHABUDDEEN: You see, Mr. Nice, you're going back to

8 terrain already traversed by previous speakers, I believe. Is that your

9 intention?

10 MR. NICE: No, it's not, but I'll move on.

11 Can I, nevertheless, and I hope you will permit me this, just this

12 observation, if it's helpful, because I heard Judge Wald's concern about

13 the difference between a jury trial and a judge alone trial and why the

14 test should be the test that we say on the authority of this Tribunal it

15 is, and can I respectfully remind those of the Court with this experience

16 that not only in Magistrate's Court for which is an authority, but where

17 judges alone in non-criminal cases, for example, in the United Kingdom

18 and, as I understand it but haven't been able to confirm, in other

19 countries such as the Cameroon where judges alone try criminal cases, the

20 courts will not entertain insufficiency arguments in the absence of an

21 election to call no evidence because to entertain sufficiency arguments

22 risks prejudgement, pre-evaluation, and takes the court down a road that

23 it is difficult to return. And I hope you may find that helpful.

24 The evidence before the Chamber, and now I come directly, subject

25 to one other observation that I want to make, the evidence before the

Page 88

1 Chamber on which they acted did not include evidence upon which they

2 subsequently sought to rely in their written judgement. The Chamber will

3 have in mind that substantial reliance was placed by the Trial Chamber on

4 the psychiatric evidence. That evidence was not before them at the

5 time -- as evidence. Indeed, it substantially wasn't before them at all

6 at the time they gave their oral judgement. It was evidence that was only

7 ever laid before them in the course of the sentencing exercise that came

8 much later, and it was, therefore, wrong for them to incorporate that

9 evidence as material upon which they could found their decision in respect

10 of genocide.

11 Further, the evidence, even when it was before them, was not

12 before them for the purpose or on the topic in respect of which they

13 placed reliance. Not at all. The evidence said nothing about the

14 accused's state of mind, intention, anything else at the time he committed

15 the killings he did, and it spoke of other matters, fitness to stand his

16 trial and, to a limited extent, risk of being a danger in the future.

17 Then can I -- as we look at the evidence, can I very respectfully

18 distinguish for Your Honours and perhaps for all of us the differences

19 between the exercise that if you decide you have to -- have to perform

20 this exercise Your Honours perform and the exercise that would have been

21 performed by the Trial Chamber had it heard representations in answer to

22 whatever its concerns may have been.

23 A Trial Chamber considering the sufficiency of a case at the end

24 of a criminal Prosecution, has three parties, judges or judge and counsel,

25 all of whom have direct experience of the evidence which, by the process

Page 89

1 of argument, they can revive in their memories.

2 Those of us with experience in these cases will know that the

3 process of argument revives the recollection of the evidence, stimulates

4 first in the mind of the opposing counsel counter-arguments, and all too

5 frequently, in the minds of neutral judges, questions. They're not put as

6 arguments. They're always raised as issues, but nevertheless. And that

7 makes the evidence that is being assessed three dimensional.

8 Here, alas, at best, if everybody had read all the transcripts,

9 the assessment would be two dimensional because Your Honours would not

10 have any direct recollection of the evidence to revive and any direct

11 potential for assessment of the witnesses beyond the way they appear in

12 writing. So that this exercise, in our respectful submission, is

13 radically different from the exercise that should have been conducted.

14 Finally, when a sufficiency argument has been advanced and dealt

15 with by a first instance trial court, its deliberations and the arguments

16 addressed to it are then available for the appeal court or chamber to

17 review. It can discover what has been taken into account by way of

18 evidence and by way of argument, and it can then, subject to its own

19 limitations, according to which jurisdiction it's in, it can then exercise

20 a review.

21 Here, this Chamber has no material of that type to work on and has

22 only the judgement, and it is to that judgement that I would take you and

23 also to the annex to our brief.

24 In the English version of the judgement, at page 20 and at

25 paragraph 65, as the Court will recall, the Trial Chamber noted that the

Page 90












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Page 91

1 material element of the crime of genocide had been satisfied, and,

2 therefore, we don't need to trouble you in respect of that element.

3 Likewise on page 24 at paragraph 77, it found discriminatory

4 intent had been established, and I need trouble you no further with

5 evidence in relation to that.

6 As to the remaining pages, as the Chamber will know, we have

7 presented in narrative form in our brief the arguments, and there's no

8 need for me to repeat those because that will waste your time and I know

9 you will have read them already; rather, I'll take you, if I may, through

10 the remaining paragraphs of the judgement which are the ones that are

11 material, make some observations about the arguments or the propositions

12 that the Trial Chamber advanced, and through annex A to our brief, take

13 you to some of the evidence and show you what has been so manifestly

14 overlooked. But this is, starting at page 24, within the overall heading

15 of the intent to destroy, in whole or in part, the group as such.

16 Can I first of all take Your Honours to page 26 for one

17 observation on the evidence. It's towards the foot of the page and it's

18 at the end of the paragraph where the Chamber said: "Genocidal intent may

19 therefore be manifest in two forms. It may consist of desiring the

20 extermination of a very large number of the members of the group in which

21 case it would constitute an intention to destroy a group en masse;

22 however, it may also consist of the desired destruction of a more limited

23 number of persons selected for the impact that their disappearance would

24 have upon the survival of the group as such. This would then constitute

25 an intention to destroy the group selectively."

Page 92

1 The Prosecutor did not actually choose between these two options,

2 and if that as an issue had been raised, the reply would have been that

3 both were possible on the evidence for a very substantial proportion was

4 aimed at and, on the evidence, kill; but in any event, the lesser, much

5 more focussed killing pattern was overwhelmingly revealed.

6 If we then turn over to -- I can turn over several pages, I think,

7 to page 29, there are three paragraphs, 91, 92, and 93, which deal with

8 lists. And it may be, and it's hard to tell because there is no argument

9 that can explain it, it may be that there was fundamental confusion by the

10 Trial Chamber in what lists it was concerned with. Certainly that's one

11 possible interpretation of these paragraphs.

12 May I explain the evidential position? There was a great deal of

13 evidence, and I'm going to take you to it very shortly, about lists, bits

14 of paper with names on them that were given both to the accused and, on

15 the evidence, to others, those lists being the names of people to be

16 processed, in reality, to be killed.

17 Separate from those lists and within the evidence-gathering

18 exercise for the trial, there were lists of people whose bodies had been

19 found in the mass grave, 200 plus names were provided by the authorities

20 of which 100 could be named, could be identified; there was a list of 39

21 names provided by a former figure of authority within the community, being

22 the names of prominent people whom he was satisfied had disappeared,

23 necessarily killed; and there was another larger list prepared showing

24 municipality Muslim leaders, the vast percentage of whom, half, were shown

25 to have been killed, the other half being people whom on the evidence had

Page 93

1 fled. And within those lists, the 39 and the 100 named from such mass

2 graves had been found, there were names of people who, on the evidence

3 and, indeed, by his admission, the accused was the executioner. So the

4 lists are entirely different.

5 The evidential lists went to show overwhelmingly that the

6 important leaders of the local Muslim community had been targeted for

7 execution and had been executed. The other lists of which the accused

8 spoke in his interview with investigators and of which other witnesses

9 spoke, were lists provided them at the time to commit the acts that they

10 then committed.

11 And if one reads, and I don't desire to do it in full now,

12 paragraphs 91 to 93, it is at least arguable that there is confusion

13 completely in the minds of the Trial Chamber. However, if one looks at

14 paragraph 93 more particularly, it says this: "The reason for being on

15 these lists and how they were compiled is not clear. It hasn't been

16 established that the accused relied on such a list in carrying out the

17 executions." And there's a reference to Jelisic seeming to select names

18 of persons at random from a list. It then suggests that there's no

19 evidence, or it hasn't been established -- and again, the use of the words

20 like "establish" this Chamber may think fit, as in so many cases, with our

21 contention that the Trial Chamber was applying the final

22 proof-beyond-reasonable-doubt test rather than saying to itself, "There is

23 no material that could establish." I'll hope not to repeat that argument

24 except when it is so obvious I can't overlook it, but it recurs. Not only

25 had it been established that the lists seen by Witness K or another

Page 94

1 witness correspond to that submitted by the Prosecutor, and then this

2 conclusion: "It is therefore not possible to conclude beyond all

3 reasonable doubt that the choice of victims arose from a precise logic to

4 destroy the most representative figures of the Muslim community." Same

5 argument about proof.

6 And if the Chamber would be good enough to go to the schedule or

7 the annex at page 21, I'm not going to go over many entries. If I can

8 point you to where the entries are and invite you to look at some of them,

9 I trust I shall have performed my duty. But at 21 -- I beg your pardon,

10 29 first, my mistake, page 29 first on the lists, you'll see first on page

11 29, and the Chamber will know from what we've said that scheduling of

12 evidence was always going to be helpful to the Trial Chamber. We prepared

13 a schedule in advance at the end of the Prosecutor's case. We weren't

14 able to help them with it. It was there. We prepared another one for the

15 sentencing exercise, and this is one for Your Honours we hope have helped.

16 And one of the features of the case, it may be, was that the

17 defendant had given very substantial answers in interview, wittingly or

18 unwittingly, and that material not only provided evidence against himself,

19 it is evidence of the facts that he admits. Very little of this seems to

20 have been referred to by the Trial Chamber in detail, and sometimes at

21 all.

22 So on page 29 there are excerpts from the transcript of the

23 interview where, for example, the accused said, page 8, and I'll be as

24 quick as I can with these, that he was given a list. They were prominent

25 people. That's the only way to describe them. Nothing could be clearer

Page 95

1 than that the targeting by lists was of prominent people.

2 Page 17, when dealing with people who he killed first, from -- he

3 killed at certainly two sites, the police station and then subsequently at

4 the Luka camp, and at the police station it was the people from cell 13.

5 And he says this, they had been on "the" lists, because he spoke of being

6 given lists right at the beginning when he was recruited before the

7 bridges were blown and the conflict was initiated.

8 Page 22, "99 per cent of the people from the lists I had seen were

9 Muslim."

10 Page 47, "It was a list of Muslim prisoners, and at the end, it

11 had the Crisis Staff printed on it." So this was a list with authority to

12 him.

13 Page 49 asked about the list. His answer, "Each of our

14 conversations from the named person having been told that as many Muslims

15 as possible had to be killed and that Brcko should become a Serbian town."

16 Over the page, and I'm going to ask, if I may, that the

17 Tribunal -- the Chamber looks at these documents itself, because otherwise

18 I'll take more time than I will have, but it goes on. There can be no

19 doubt about the lists that he was provided and the purpose for which they

20 were provided. But if you go on page 31, it was not just from the mouth

21 of the defendant himself that these lists were spoken of. There's a

22 Witness H. Many witnesses had pseudonyms, and only a limited number were

23 in fully closed session. Witness H was able to speak of those 20 people

24 recognised on both lists, and he spoke of their common Bosniak

25 characteristic. There's another witness dealt with at the foot of the

Page 96

1 page whom I won't name or identify in any way, but the Chamber can see the

2 effect of what that witness said. And at page 33, another witness - again

3 I shan't name him - the second witness down, and so on.

4 So that the, in our respectful submission to this Chamber, the

5 conclusion in paragraph 93 is simply unsustainable where it says on any

6 test, whichever test, it is not possible to conclude beyond reasonable

7 doubt, there is no evidence that could go forward - whichever way we seek

8 to interpret those words - that the choice of victims arose from a logic

9 to destroy the most representative figures of the Muslim community. There

10 was an enormous amount of material, further confirmed as you will find at

11 page 21 in your schedule.

12 I have lost my own page 21 by detaching it from the papers, sorry.

13 Will Your Honours just give me a minute. I've managed to confuse my

14 papers in a way I shouldn't have done.

15 Well, at page 21, Your Honours will find the beginning of a

16 category -- you'll find the beginning of a category of evidence summarised

17 as singling out prominent Muslims. It goes on in this particular

18 formulation of our schedule until page 28. If you look at the defendant's

19 own answers in interview in the middle of that page, he starts identifying

20 victims by their role within the Muslim party. He says further at the

21 foot of the page how people were targeted because, second line from the

22 bottom, they were high up in the SDA hierarchy, and his answers continue

23 over the page.

24 On page 22 there's the witness referred to in the middle of the

25 page. It's dealt with in argument. It's the clearest possible evidence

Page 97

1 from somebody who had no reason to make it up or get it wrong, but what

2 she saw or what was seen was evidence of the targeting of prominent Muslim

3 people. And again, if the Court would be good enough at its time to look

4 at the remainder of those pages -- let's see if there's anything in

5 particular that I wanted to draw to your attention within them. Yes, I

6 think I've already referred to what you can find on page 27 where, again,

7 he says that the list he was given was of prominent people.

8 So paragraph 93 in our respectful submission is totally flawed.

9 And paragraph 94, over the page in the judgement, speaks of people

10 reputedly released on the day of their arrival. The Chamber will have

11 seen from the way the schedule has been prepared that the right-hand

12 column says whether the evidence summarised has been dealt with at all in

13 the judgement of the Court.

14 Now, on pages 11 to 12 of this document, Your Honours will see in

15 the evidence of a witness, Witness A, who had a pseudonym but whose

16 evidence was otherwise public, that he said this right at the foot of the

17 page, to take it quickly: "Despite the passes that were issued by the

18 police, these passes were just a false hope for those who received them.

19 They would get them today, they'd go home, and then the next day they

20 would be brought back, either as we already heard from the stories of

21 others who brought them then, they would be released in the morning and

22 killed in the evening in their own homes or in the apartments or flats."

23 This evidence, as are entry or non-entry in the right-hand column

24 reveals, simply overlooked by the Chamber or not dealt with, and yet a

25 fundamental and important piece of evidence about what was actually

Page 98

1 underlying the apparent or seeming release of individuals.

2 So paragraph 94, flawed. Evidence to entirely the contrary effect

3 to that upon which the Chamber sought to rely.

4 Paragraph 95 asserts this, that it hadn't been established beyond

5 all reasonable doubt, same argument, whether the accused killed Luka camp

6 under orders.

7 It goes on to say he presented himself as the Luka camp Commander,

8 believed that he was the chief or at least a person in authority because

9 he gave orders to the soldiers at the camp who appeared to be afraid of

10 him.

11 Well, if we'd been given an opportunity of considering that as an

12 argument, we would have said it is perfectly clear on all the evidence,

13 including the evidence of the defendant in interview, that he was doing

14 what he was doing, including killing, pursuant to the overall plan,

15 including the lists of which he had spoken and which the Chamber seems not

16 to have regarded as of significance.

17 In any event, the question of whether he killed all or only partly

18 pursuant to orders is in no sense determinative of the issue in this case,

19 (A) because what might matter would be the killings pursuant to orders,

20 and there was a mass of evidence with regard to those; and secondly,

21 because if architects of genocide choose to put in camps people who,

22 however they've been recruited, however their proclivity has been

23 identified, are people who will willingly kill even beyond the immediate

24 instructions, that's not evidence that there was no genocide, very much

25 the reverse.

Page 99

1 And in respect of this paragraph, paragraph 95, can I invite the

2 Chamber, if it feels it could, to at least note the pages that it might

3 want to consider from the schedule that touch on this, and then I will say

4 for individual examples, probably take you to very few items.

5 At page 35, you can start with the subcategory of material. Let's

6 just look at the first of those entries on page 35 where indeed the

7 defendant asserted on page 7 of one of his interviews that he was not

8 killing by ethnicity but by order, something reflected in the next entry

9 with the first lines of his answer. He was following a script by which he

10 meant that when he killed someone, he killed them in the same way. This

11 is all at the police station. And I must remember to say something more

12 about those particular killings before I conclude.

13 It goes on over the page to deal with further evidence on the same

14 topic, and you can see, for example, on page 37 where the accused, in a

15 long answer about killings of particular people, sets out quite a detailed

16 account of how for those two particular victims others were giving him

17 instructions and somebody else wanted to join in and commit a killing

18 himself and so on. And you will find a great deal of evidence between

19 here and page 41.

20 On page 40, the matter was most succinctly summarised in an answer

21 to the Presiding Judge. It came from a witness, Witness I, and the

22 Presiding Judge asked the witness:

23 JUDGE JORDA: [Interpretation] Did he give you the impression

24 of directing the operations or of simply being someone who

25 carried things out?

Page 100

1 A I could say that he was both.

2 This is somebody who was there.

3 A He carried out orders, but he also selected his victims

4 through his own free will. He could have not shot dead

5 someone even if he were told to do so, but he did quite a

6 few things on his own.

7 No reference to this in the judgement, as with so much of this

8 material.

9 Going on from page 41 to page 44, there is an interesting passage

10 that's relied upon by the Chamber again overlooking the critical

11 evidence.

12 At the top of page 43, Witness A spoke of how there had come a

13 time, after a couple of weeks, when somebody, apparently in a position of

14 superior authority, stopped the killings, and this was relied upon by the

15 Chamber as of significance. But what they didn't deal with is what Your

16 Honours can see here at page 43, where Witness B says what he says there,

17 but you'll also find that in our brief, at paragraph 467, the evidence was

18 given by Mr. Ralston that the succession of killings at Brcko was not as a

19 result of a decision by those organising things to stop of their own free

20 will but because knowledge of what was happening at Brcko had seeped out

21 and was in the public domain and that it was now no longer acceptable for

22 this method of killing to be continued.

23 So far from this evidence overall helping the accused in any way

24 by showing that he was acting at random or acting beyond control, the

25 evidence as a block - and there is a great deal more of it between pages

Page 101

1 59 of this schedule and the end - shows, yes, he was acting pursuant to a

2 plan because he was acting pursuant to orders. The evidence is from all

3 sources, is varied, but, overall, consistent. So, yes, he was acting

4 pursuant to orders, and he was killing. He may well have been killing

5 beyond the immediate orders, targeting people who may well have been

6 doomed in any event and killing them ahead of the time when they would

7 otherwise have been killed.

8 Perhaps I should just make a passing reference, as I promised I

9 would, to another piece of evidence that was, I think, relied upon by the

10 Chamber without any opportunity for considering its implication.

11 There was a very disturbing sequence of photographs showing the

12 accused executing a man in an alleyway. They are available for you to

13 inspect should you wish to do so.

14 He and one other man killed two men with guns as they walked down

15 the alleyway, at the end of which could be seen bodies that had already

16 been killed.

17 In interview he was to assert, and the Prosecution didn't

18 necessarily challenge this explanation, that the extraordinary photographs

19 of this event were taken because the Serbs who were controlling him wished

20 to reverse the effect of the photographs and to use them as propaganda,

21 because people were seen from behind and because they are otherwise

22 physically indistinguishable, Serbs from Muslims, because they wished to

23 use the photographs to support the allegation that Muslims were killing

24 Serbs.

25 Now, right or wrong, arguably and probably right and certainly

Page 102












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Page 103

1 available for a Trial Chamber to consider as potentially right, that

2 doesn't show anything by way of Jelisic acting alone; the reverse. It

3 shows that all he was doing, including allowing himself to be photographed

4 for propaganda purposes, was pursuant to a plan.

5 So if I may so categorise it, the narrow approach taken here in

6 paragraph 95 simply overlooks evidence, arguments, and interpretations

7 that would have led to precisely the contrary conclusions from those

8 relied upon by the Chamber.

9 And since I've touched on photographs, I'll mention the one other

10 photograph that is, I think, annexed to our brief and that Your Honours

11 may have seen. It shows a mass grave just after its been partially

12 filled. In the background there is a truck, a white Bimeks truck, and of

13 course, that featured in a lot of the evidence. You can find it in this

14 schedule and referred to in our brief. It featured because it was the

15 regular truck that went to collect the people who had been killed. This

16 was a refrigerated truck, I think.

17 So any suggestion advanced by the Chamber that his killing was out

18 of control, was not part of a scheme, had to accommodate the fact that

19 there was, distasteful as it is, a truck going round, collecting the dead

20 bodies. Not something this accused was in any position to organise

21 himself at his level. And I think that the Bimeks truck is referred to,

22 if at all, in one footnote, at most, in the judgement of Court. But

23 again, evidence overlooked. More materially, significance and

24 interpretation, proper interpretation of evidence completely overlooked.

25 If Your Honours would be good enough, and I have an eye on the

Page 104

1 clock, I think that on the original time I have about 15 minutes to go,

2 I'm not sure, allowing for the break, and I don't know what the position

3 of the Chamber is on questions that were asked.

4 JUDGE SHAHABUDDEEN: You think you might have crept into error in

5 your computation of time?

6 MR. NICE: I may well have, Your Honour, but I wasn't sure what

7 the effect was on the overall time scale of questions of my learned

8 friends was.

9 [Appeals Chamber confers]

10 JUDGE SHAHABUDDEEN: Okay. The Bench will accommodate you and

11 would allow you to proceed until 1.00. The curtains will be drawn then.

12 MR. NICE: Yes. I'm very grateful.

13 Page 30 of the judgement and paragraph 97. I think I've already

14 incorporated my remarks about the incision of whether he, from time to

15 time, acted beyond the scope of powers entrusted to him.

16 Then we come to their conclusion, paragraph 98, which reads that

17 it hasn't -- the Prosecution hasn't established or hasn't provided

18 sufficient evidence allowing it to be established beyond reasonable doubt

19 that there existed a plan to destroy the Muslim group in Brcko or

20 elsewhere.

21 In our very respectful submission to Your Honours, that is simply

22 and completely a misassessment of the position.

23 Can I draw to your attention the first nine pages of the schedule,

24 on page 3 of which, let it be noted at the foot of page 3 there is

25 evidence and it's from a named witness, though I won't name him in this

Page 105

1 particular setting, but a witness who traces these killings right back to

2 Karadzic, and there was evidence to that effect. Indeed, the defendant,

3 in his interviews, said something effectively to the like effect.

4 At page 5, in the middle of the page, in his answers, I just pick

5 out one:

6 "He made it quite plain that before it had all been planned,

7 everything, there was a plan that existed. There was a plan with the

8 bridge, with the lists, with everything."

9 And I don't -- Your Honours see recurring in the right-hand column

10 "No reference," "No reference." This material was not considered on the

11 material available to us by the Trial Chamber.

12 JUDGE SHAHABUDDEEN: This is the --

13 THE INTERPRETER: Microphone, Your Honour.

14 MR. NICE: That's right. I hope that the schedule always makes it

15 clear whether it's a witness or when it is the accused himself in

16 interview.

17 Other pages that the Chamber might find of value on this

18 particular topic, although I would hope already to have persuaded you that

19 there was a mass of evidence contrary to this conclusion, include pages 12

20 to 20, 45 to 54, and 54 to 58.

21 And I turn, in my remaining ten minutes, to what lies in the

22 judgement, between pages 31 and the conclusion where the word "dolus

23 specialis" appears at the foot of page 33, where the Chamber concluded

24 that there should be an acquittal of genocide using, on the top of

25 page 34, the Chamber may conclude the revealing phrase, "The benefit of

Page 106

1 the doubt must go to the accused."

2 But coming back in this short block of material, at page 32 and in

3 lines -- in paragraphs 101 and 102, the Chamber sets out, as no doubt it

4 accepted it had to, the overwhelmingly strong material going to show the

5 true state of mind of this man, where he claimed to have killed so many

6 Muslims before breakfast or having to kill so many by coffee or coming as

7 Adolf like Adolf in Germany and so on. They haven't put all the

8 references in here. They can all be found in this schedule.

9 His stated intentions could not have been more appalling, nor

10 could they have been more fitting to the very crime for which he was

11 indicted.

12 How did the Chamber resolve the conflict between this enormously

13 powerful evidence, and I repeat it is one of the reasons I said it at the

14 beginning, evidence of the type you're unlikely ever to find because

15 people are rarely this revealing, how did they resolve that conflict with

16 their decision to acquit?

17 At paragraph 105 on page 33, they said: "The words of Jelisic, as

18 revealed by the witnesses, essentially reveal a disturbed personality."

19 Foot of the page, the footnote 162, is to the report of

20 Dr. van den Bussche, not in evidence before they made their decision,

21 considered only at the stage of sentencing.

22 What follows in reference to immaturity and so on, borderline

23 antisocial and narcissistic characteristics, all drawn from psychiatric

24 evidence which was not adduced to deal with this issue at all.

25 At paragraph 106, it deals with one particular piece of evidence.

Page 107

1 May I perhaps for these purposes have a very short closed session hearing

2 if it's possible to arrange swiftly, because the witness gave evidence

3 entirely in private.

4 JUDGE SHAHABUDDEEN: It is ordered accordingly.

5 [Private session]

6 (redacted)

7 (redacted)

8 (redacted)

9 (redacted)

10 (redacted)

11 (redacted)

12 (redacted)

13 (redacted)

14 (redacted)

15 (redacted)

16 (redacted)

17 (redacted)

18 (redacted)

19 (redacted)

20 (redacted)

21 (redacted)

22 (redacted)

23 (redacted)

24 (redacted)

25 [Open session]

Page 108

1 MR. NICE: The laissez-passer is dealt with at page 106, and I've

2 already told Your Honours there was another witness -- no, I've already

3 told Your Honours about the witness who dealt with the reality of the

4 issue of the laissez-passer.

5 Your Honour, that really concludes very much in summary for the

6 evidence that I want this Chamber to have in mind. The two grounds upon

7 which the Trial Chamber dismissed genocide are on the material that I've

8 attempted or we've attempted to summarise for you. The two grounds were

9 grounds where there was a very considerable quantity of material. Because

10 they had taken no opportunity to discuss what other material was or how

11 this material might be properly interpreted, they denied themselves the

12 opportunity of finding that it was, indeed, evidence upon - which we would

13 argue, if necessary, but we say it isn't necessary to argue it at this

14 stage - evidence that indeed not only could justify, demand, the case

15 being taken forward, but indeed, there can be no better evidence, in our

16 respectful submission, of the true genocidal state of mind of Jelisic.

17 And the suggestion that a slightly disturbed personality, even a

18 borderline personality, is an excuse, is a suggestion that must be

19 rejected, for it might be more surprising to find genocidal offenders who

20 were free of some kind of personality shortcoming than it would be to find

21 them of sound mind. And really, that argument must be given no public

22 support, for as well as being wrong, as it might appear I would be arguing

23 for policy reasons, it's really wrong as a matter of law. Man is assumed

24 to be in charge of himself, and these marginal personality matters don't

25 provide him a defence. No special mental defence is argued on his behalf.

Page 109

1 Your Honours, I see the time, and you were good enough to give me

2 15 more minutes. I think the courteous thing would be for me to give 5

3 minutes of those back. So unless I can help you further ...

4 JUDGE SHAHABUDDEEN: Thank you, Mr. Nice. The Chamber thanks you

5 for your assistance.

6 Do I take it, Mr. Yapa, that there ends the case for the

7 Prosecution on the Prosecution's appeal?

8 MR. YAPA: Yes, Your Honour.

9 JUDGE SHAHABUDDEEN: Yes. Then when we resume, we will be hearing

10 from Mr. Clegg, and we will now therefore take the adjournment until 3.00.

11 --- Luncheon recess taken at 12.55 p.m.















Page 110

1 --- On resuming at 3.00 p.m.

2 JUDGE SHAHABUDDEEN: The sitting is resumed.

3 Mr. Clegg, we will hear from you now. Thank you.

4 MR. CLEGG: May I deal firstly with ground 1 of the Prosecution's

5 appeal.

6 Complaint is made that they were not permitted to present argument

7 before verdict, the Court having indicated that it was minded to give

8 judgement following the close of the Prosecution case.

9 I have formed the view that the Prosecution is, in fact, right in

10 asserting that they ought to have been given leave to present a closing

11 argument. Rule 86(A) appears to cover the position. It reads: "After

12 the presentation of all the evidence, the Prosecutor may present a closing

13 argument."

14 Clearly, in the light of the course of action proposed by the

15 Trial Chamber, all the evidence had concluded at the time they made their

16 application to be heard, and I concede that on a strict reading of

17 Rule 86, they ought to have been permitted to address the Chamber. Even

18 were it not for the words Rule 86, I would have inclined to the view that

19 the parties ought to have an opportunity to address a Trial Chamber before

20 verdict, particularly if the verdict was to be adverse to the party who

21 was seeking to address the court.

22 It is, nonetheless, our submission that the failure of the Trial

23 Chamber to permit the Prosecution the right of presenting an argument does

24 not in any way invalidate the verdict. It is, one might say, at its

25 height discourteous. It may be, indeed on a proper reading of Rule 86,

Page 111

1 almost certainly is contrary to the Rules of the Chamber, but they are

2 fundamentally procedural.

3 If on a proper analysis of the evidence the Prosecution fail on

4 their third ground of appeal, which in our submission they ought, then we

5 would submit that unfortunate though the error was in failing to allow

6 them the right to be heard at the close of the evidence, that error in no

7 way invalidates the verdict.

8 Many years ago in England, a distinguished Judge, Lord Hewitt,

9 said that justice must not only be done, it must be seen to be done. And

10 by declining to hear one of the parties to the action, there is, we would

11 submit, at least a perception that justice is not seen to be done if one

12 of the parties is denied an opportunity to be heard. Therefore, we do not

13 seek to sustain the approach adopted by the Trial Chamber.

14 That does not, of course, concede that the appropriate remedy

15 sought by the Prosecution, namely a retrial, ought to follow. It

16 certainly cannot be, with respect to the submissions presented today,

17 inevitable that a retrial follows, because that was the word that one time

18 mattered.

19 What Rule 117(C) says is in appropriate circumstances, the Appeal

20 Chamber may order the accused be retried according to law. Those words

21 import a discretion in the Appeal Chamber. There is contrary, to what has

22 been argued, nothing inevitable about that consequence. And certainly if

23 every procedural irregularity led inevitably to a retrial, we would submit

24 there would be many more retrials than would be desirable.

25 The words "in appropriate circumstances" in our submission can be

Page 112

1 substituted for the words "if justice demands." And we would submit that

2 the answer to whether there needs to be a retrial in this case is to be

3 found upon the Court's determination of the third ground of appeal.

4 Put bluntly, it cannot be sensibly argued, can it, that if the

5 Court actually came to the right decision by the wrong route there should

6 be a retrial, with all the attendant cost and delay what that would

7 entail, the ordeal of putting witnesses through the strain of giving

8 evidence, and for that matter, the pressure on a defendant who has now

9 been in custody for more than three years, all to achieve a result which,

10 in our submission, the Court would have been driven to even had it heard

11 the submissions of the Prosecution at the close of the evidence.

12 It follows, therefore, that although I make the concession that

13 they ought to have been given a right to be heard, we submit that no

14 injustice flowed from that, and in fact the Court, the Trial Chamber, came

15 to the correct decision, albeit by a shortened route.

16 I ought, perhaps, at this early stage to indicate that although it

17 was originally sought on behalf of the respondent to this appeal that a

18 retrial be ordered, that is not a submission that I advance on his behalf

19 today.

20 The original brief filed on his behalf sought a retrial, despite

21 the fact he had been acquitted of every count on the indictment that he

22 contested. Were there to become fashionable, litigation need ever end.

23 For the avoidance of doubt, we do not seek a retrial. We submit

24 that the Trial Chamber came to the correct conclusion, albeit by the wrong

25 route.

Page 113

1 As to the second ground of appeal, may I make my position clear.

2 Insofar as the Trial Chamber applied the test of being satisfied beyond

3 reasonable doubt to the determination of that decision at that stage, then

4 we would submit that that was the wrong test to apply. I had in mind,

5 when making the concession that I did, primarily the written judgement of

6 the Court which clearly expresses itself in terms in which a common lawyer

7 would only interpret it, as applying that standard to the decision that

8 they were then making.

9 I frankly confess that in the short time that I have been

10 instructed, I have not studied the oral judgement as carefully as the

11 Appeal Chamber, and recognise that judges from a civil jurisdictional

12 background might not express themselves with quite the same precision as a

13 judge from a common law background.

14 We would submit that if on a true reading of the oral and written

15 judgement the test applied by the Trial Chamber was, one, expressed in the

16 way that the Court expressed it earlier today, namely when it said that no

17 reasonable tribunal of fact could be sure beyond reasonable doubt on that

18 evidence, that would be applying the correct test at that stage of the

19 proceedings.

20 The distinction, if I may analyse it, is this: Under Rule 98(B)

21 the crucial words contained in the rules read as follows, namely, that the

22 conviction is insufficient to sustain a conviction. The crucial words are

23 "to sustain."

24 That means, and I choose the definition of the Oxford English

25 dictionary, to uphold the validity of, to support as valid. Transposed

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Page 115

1 into a legal framework, it would mean to survive examination on appeal.

2 It implies not just a consideration of the merits of a verdict at trial

3 level, but an implication that they would survive examination in this

4 Chamber.

5 Now, the Appeal Chamber in the appeal of Dusko Tadic recognised,

6 and I quote from page 28, paragraph 64 of the judgement: "It is important

7 to note that two judges, both acting reasonably, can come to different

8 conclusions on the basis of the same evidence. It follows that a

9 conviction can be sustained even if reasonable judges would have come to a

10 different conclusion on the facts as long as the conclusion is one that

11 could be reasonably arrived at, and that is, with respect, my analysis of

12 the proper test to be applied at the Rule 98 stage. In other words, if a

13 reasonable Trial Chamber considering the evidence could reasonably

14 convict, then the Trial Chamber ought not to intervene and direct a

15 verdict or return a verdict of not guilty subject to one matter that I

16 will touch on in a moment."

17 I do not subscribe to the theory that the Trial Chamber is obliged

18 to permit the trial to proceed even if there is a scintilla of evidence

19 which suggests guilt, but because that scintilla of evidence exists, it is

20 not obliged to allow the trial to proceed, if, when looked at against the

21 factual background of the case as a whole, no reasonable Trial Chamber

22 could convict on that evidence.

23 So, for example, you may have a case where cross-examination has

24 effectively destroyed a witness for the Prosecution who perhaps provides

25 identity on a crucial count. The effect of cross-examination may be to

Page 116

1 render the evidence of the witness totally unreliable in the view of the

2 Trial Chamber. The fact that you could extract from that witness'

3 evidence one sentence which when viewed in isolation would provide a prima

4 facie case against an accused is no reason to permit the trial to proceed

5 following the conclusion of the Prosecution's case, because the Trial

6 Chamber is entitled to look at the whole of the evidence at that stage and

7 not to say, "Is there any evidence of guilt?" but the different question,

8 "Is there any evidence which a reasonable Trial Chamber, properly

9 directing itself, could return a safe verdict?"

10 It is that second test that certainly, in scheduled offences in

11 Northern Ireland, judges sitting alone apply when trying allegations of

12 terrorism, they sitting, of course, without a jury.

13 The Prosecution have filed a case from Ontario, the Queen and

14 Collins and Palfrey. In our submission, that case provides no support for

15 the proposition that they advance.

16 The difference there, as was identified this morning by the Court,

17 is that --

18 JUDGE SHAHABUDDEEN: Mr. Clegg, may I utter a word of caution.

19 Words falling from the lips of the Presiding Judge are not to be

20 attributable to the Court. It's that particular Judge's view only.

21 MR. CLEGG: I am, of course, mindful of that, and I'm grateful for

22 the correction.

23 The reference, in fact, that I am alluding to in fact came from

24 Her Honour Judge Wald when she was identifying the possible distinction

25 where the trier of fact is also the -- the trier of fact is different from

Page 117

1 the trier of law. And there is, of course a distinction where you have in

2 a common law jurisdiction trial by a jury, then you have no reasoned

3 judgement on the facts at all. The judge sitting with a jury has no idea

4 of what the jury's view of the facts are, and, therefore, he will or she

5 will inevitably be more circumscribed at the close of the case for the

6 Crown than a Tribunal that is both the decider of law and fact because the

7 Trial Chamber or a judge sitting without a jury will know that they have

8 already come to the firm conclusion that certain of the evidence is, in

9 their judgement, unreliable. They will come to the conclusion that this

10 evidence could not, in their judgement, persuade any reasonable trier of

11 fact to convict. And there is, we submit, a distinction, because the

12 alternative would, we submit, be somewhat absurd.

13 Let's imagine that the extreme position be taken of the

14 Prosecution. The Trial Chamber can hear a case. All three judges can say

15 to themselves, "Well, there is no way that we would convict this man on

16 this evidence. We don't believe that witness, we don't believe that

17 witness, and we certainly don't believe the third."

18 Are they to sit mute, while as in this case Mr. Greaves told the

19 Trial Chamber he had 60 Defence witnesses he was proposing to call, 6-0.

20 Sixty Defence witnesses were going to be called over a period of months

21 before they could articulate that firm conclusion they had already

22 reached.

23 Now, it may be, we submit, a matter of substance more than -- a

24 matter of form rather than substance that really lies behind the

25 Prosecution complaint.

Page 118

1 Can I hypothesise for a moment? Let us suppose that the Presiding

2 Judge, at the conclusion of the evidence in this case, had said to the

3 Court, "It may help you both to know that we have, all three of us, come

4 to the view that we could not possibly be satisfied beyond reasonable

5 doubt of this man's guilt having heard the evidence that we have."

6 Now, there is nothing that precludes a judge from saying that. If

7 he had said it in this case, could there be any complaint about the fact

8 that he had said it? There may well be much complaint about the fact that

9 they didn't agree with him, but that is the cut and thrust of advocacy.

10 But there can be no complaint, surely, about a court indicating to the

11 parties a view that they had formed, not at a preliminary stage but after

12 the Prosecution have called all of the evidence that they want to on the

13 issue.

14 If they had done that, we would submit that no complaint could

15 have been made, and we would be in exactly the same position today, only

16 ground 2 of the appellant's grounds would be unarguable. In our

17 submission, it is, in reality, a complaint of form over substance.

18 I don't have any other submissions in relation to the first two

19 grounds of appeal and propose to move to the Prosecutor's third ground.

20 It is perhaps best encapsulated in the Prosecution brief which

21 asserts at paragraph 4.7 that the plain, ordinary meaning of Article 4

22 does not support the proposition that dolus specialis, special intent, is

23 required, and continues such a proposition also contradicts the Akayesu

24 judgement and the jurisprudence of the ICTY.

25 Now, in oral argument today, there has been a slight refinement of

Page 119

1 that submission as I understood it. There is, I think it is now conceded,

2 a requirement for dolus specialis, in other words, a proposition directly

3 contrary to what's in the written brief at paragraph 4.7, but that dolus

4 specialis doesn't mean what everybody thinks it means but something else

5 falling, when analysed, short of dolus specialis.

6 In other words, what, as I understood it, the effect of the

7 submission was, to concede the words, which as I will demonstrate would be

8 difficult to explain away without concession, but to say, all right, the

9 words are right, but it's the way they've been interpreted is wrong.

10 We submit it's nothing more in reality than a rather clever

11 attempt at a forensic sidestep. And I intend no disrespect when I say

12 that, but on analysis that is, is it not, what was happening?

13 In our submission, a special intent is necessary to prove the

14 offence of genocide, and that was correctly identified by the Trial

15 Chamber in paragraph 66 of its judgement, and it's perhaps worth seeing

16 what the special intent was. The Trial Chamber said at paragraph 66:

17 "It is in fact the mens rea which gives genocide its speciality

18 and distinguishes it from an ordinary crime and other crimes against

19 international humanitarian law. The undergoing crime or crimes must be

20 characterised as genocide when committed with the intent to destroy, in

21 whole or in part, a national, ethnical, racial, or religious group as

22 such. Stated otherwise, the prohibited act must be committed against an

23 individual because of his membership in a particular group and as an

24 incremental step in the overall objective of destroying the group. Two

25 elements which may therefore be drawn from the special intent are: One,

Page 120

1 that the victims belong to an identified group, and two, that the alleged

2 perpetrator must have committed his crimes as part of a wider plan to

3 destroy the group as such. Acts committed against victims because of

4 their membership in a national, ethnical, racial, or religious group, (A)

5 the discriminatory nature of the acts, and then the special intent which

6 characterises genocide supposes that the alleged perpetrator of the crime

7 selects his victims because they are part of a group which he is seeking

8 to destroy with the goal of the perpetrator or perpetrators of the crime

9 is to destroy all or part of a group. It is the `membership' of the

10 individual in a particular group rather than the identity of the

11 individual that is the decisive criteria in determining the immediate

12 victims of the crime of genocide."

13 In our submission, that is a textbook definition of the crime.

14 Put simply, to be guilty of genocide, it is not sufficient to kill your

15 victim because he is a Muslim or a Jew or a Catholic. The killing must be

16 accompanied by the intent to destroy, in whole or in part, a national,

17 ethnical, or religious group. It is this state of mind which elevates

18 that which would otherwise be a crime against humanity to the crime of

19 genocide, which is the most serious of all crimes falling within the

20 jurisdiction of this Court and is being called by academic lawyers the

21 crime of crimes.

22 Indeed, if we reflect for one moment about the jurisprudence on

23 the offence of genocide stemming from the Second World War, we can see how

24 it has developed as the international -- as an answer international law

25 has given to the Holocaust which occurred in Nazi, Germany. There, of

Page 121

1 course, is the classic illustration of the offence of genocide being

2 manifested by a state against a religious group.

3 Diverting for one moment, no one could ever doubt for a moment

4 that the authors of the "Final Solution" in the Third Reich were guilty of

5 genocide. It is perhaps the most classic example. They had that special

6 intent, namely, the objective of destroying the entire Jewish race, save

7 for those few exceptions who, because of their special skills, were of

8 value to the German state.

9 It does not mean that each member of each Einstadt Gruppan and

10 command unit was guilty of genocide who carried out the crime as those

11 groups moved from town to town and from village to village throughout

12 eastern Europe. They might or they might not be, depending upon what

13 individual, personal intent they had. Many of them may not have had an

14 intent personally to wipe out or to assist in the extermination of the

15 entire Jewish race.

16 The crime, we would submit with respect, whilst not confined to

17 the architects of genocidal plans, is perhaps best illustrated as being an

18 offence which is designed and can be applied to the people who are the

19 architects of genocide in the sense that they are the decision-makers and

20 the policy makers.

21 Now, I am not seeking to say that one man on his own can't be

22 guilty of genocide; he can be. There are considerable evidential

23 difficulties to be overcome in so finding. And the Trial Chamber

24 themselves accepted that one man could be guilty of genocide and addressed

25 that issue very carefully in the course of their judgement. But as a

Page 122

1 crime, it is, we submit, most normally reserved, most usefully reserved

2 for the architects of ethnic cleansing. The difference between a crime

3 against humanity and the crime of genocide is only that state of mind. In

4 our submission, there is a consistent acceptance of this requirement for

5 special intent to be found throughout the judgements of this Court in the

6 ICTY and also in the International Criminal Tribunal for Rwanda.

7 In the Rwanda case of Kayishema and Ruzindena, the Court there

8 spoke, and I quote their words:

9 "Of the unique element of special intent to destroy in whole or

10 in part a national, ethnic, racial, or religious group as a prerequisite

11 for the crime of genocide."

12 And the it is found in paragraph 9 of the sentencing judgement.

13 It is that unique element spoken to in the Kayishema and Ruzindena

14 judgement the Trial Chamber, in the instant case, was alluding to.

15 The Trial Chamber in the case of Serushago, another Rwanda case,

16 used the same words as the Trial Chamber here did in defining genocide.

17 The Trial Chamber in that case said, and I quote:

18 "The crime of genocide is unique because its element of dolus

19 specialis, special intent, which requires that the crime be committed with

20 the intent to destroy in whole or in part a national, ethnic, racial, or

21 religious group," to be found in paragraph 4 of the judgement, later

22 referred to genocide as the crime of crimes.

23 We broadly submit that the assertion in the written brief of the

24 Prosecution that the Trial Chamber in the instant case departed from

25 established jurisprudence in this Court or in the International Tribunal

Page 123

1 of Rwanda as, frankly, incapable of being sustained.

2 We filed with my brief skeleton submission an article published in

3 the International and Comparative Quarterly Review of July 2000 by

4 Professor Verdirame of the University of Nottingham in England which

5 addressed the divergent approaches to mens rea and the requirement of it

6 for the crime of genocide.

7 Page 584, it addresses the mental element and discusses both the

8 Trial Chamber's decision in the case I've mentioned of Kayishema and

9 Ruzidena, and the case of Akayseu which the Prosecution quoted in its

10 appellate's brief and to which I will return in a moment.

11 What the Professor said, at the top of page 588, is as follows:

12 "This distinction between the different types of hostile intents

13 against a group is of great importance. The intent to discriminate

14 against or even to persecute a group cannot be considered identical to the

15 intentional pursuit of its physical annihilation. In addition, a method

16 for the judicial application of the dolus specialis in genocide has been

17 crystallised by the ad hoc tribunals. First, contextual elements are

18 assessed."

19 It seems that I fused the lights of the building. I just pause

20 for a moment. My eyesight is not good enough to continue.

21 JUDGE SHAHABUDDEEN: Mr. Clegg, we shall wait for a few minutes to

22 see if the lights return. If they do not, we shall suspend for a few

23 minutes.

24 [The Registrar and the Trial Chamber confer]

25 JUDGE SHAHABUDDEEN: Mr. Clegg, I'm taking advice.

Page 124

1 MR. CLEGG: Is it something I said?

2 I'll start the quotation again in the circumstances.

3 "This distinction between different types of hostile intents

4 against a group is of great importance. The intent to discriminate

5 against or even to persecute a group cannot be considered identical to the

6 intentional pursuit of its physical annihilation. In addition, a method

7 for the judicial application of the dolus specialis in genocide has been

8 crystallised by the ad hoc tribunals.

9 First, contextual elements are assessed, in particular, the

10 existence of a genocidal plan and the commission of a genocide in a given

11 situation are considered. Secondly, the tribunals examine the genocidal

12 intent of the individual, which is distinct but yet connected to the

13 collective genocidal intent underlying the plan."

14 It certainly appears that the good professor has formed a

15 different view of the decisions of the ad hoc tribunals from the

16 Prosecution as pleaded in the appellate's brief.

17 We would also seek, without referring directly to it, to draw the

18 Court's attention to a book from the library of this Court, Genocide in

19 International Law by Professor Schabas, and particularly his chapter on

20 the mental element or mens rea of genocide. We would commend his views to

21 the Chamber.

22 Now, in support of the Prosecution's submission that Article 4

23 does not require dolus specialis in the way that one has always understood

24 it in the past, academic support is now prayed in aid in the form of the

25 filing made two days ago. Now, I make no complaint about the lateness of

Page 125

1 it.

2 We would invite the Court to consider with some care the views of

3 the academics annexed to that filing to see whether on proper analysis it

4 does support the proposition by the Prosecution at all.

5 The first is a rough translation of part of a book by Alicia Gil

6 Gil, and the rough translation that I have been provided with seems to

7 accept, on page 258, when dealing with the mens rea, that it is necessary

8 to prove that the person has the intention, the will to act, of continuing

9 to kill, or in the case of various perpetrators, with the knowledge of the

10 intention of the co-authors of continuing to kill until the completion of

11 the plan - by that it can only mean the plan to exterminate the group in

12 whole or in part - and at least counting on the possibility of dolus

13 eventualis.

14 Now, I'm not quite sure how that squares with the proposition as

15 advanced by the Prosecution.

16 A little later in the judgement, on a page that is unnumbered that

17 follows page 258 in the faxed copy supplied to me, the author talks about

18 the plan in these terms:

19 "To inflict conditions which are abstractly capable of bringing

20 about the result of extermination which includes the knowledge of such a

21 risk."

22 The second book is by way of a press release, because it has yet

23 to be published, from Professor Triffterer at the University of Salzburg.

24 I personally confess that I found the syntax and grammar something

25 of a strain, which I'm sure reflects more on the translation than it does

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Page 127

1 on the good professor. But even there at page 1441, he talks about the

2 need for an additional intent, although as translated, I confess it is not

3 entirely easy to follow.

4 What he is clearly arguing for in Annex 3, is a change in the

5 law. What the good professor there says is that the need for a special

6 intent as proposed in Article 6 of the Rome Statute should be eliminated.

7 Well, the good professor, of course, is perfectly entitled to think that

8 the law should be changed and to argue to that effect. It is, in effect,

9 conceding that the law currently is not as he would like, and what he

10 doesn't like about it is the special intent that is required.

11 We would submit that there is much to be said in favour of the law

12 being as it is. Anyway, I anticipate that this Court will be anxious to

13 state the law as it is rather than as the good professor would like it to

14 be.

15 The only case quoted by the Prosecution in its written submission

16 is the Rwanda judgement of Akayseu. The analysis of that judgement, in

17 our submission, does nothing to support their argument.

18 I quote from page 3: "The crime of genocide is unique because,"

19 and I add the words "it is," "of its element of dolus specialis, which

20 requires that the crime be committed with the intent," and then it

21 continues in what is now the familiar words.

22 How that supports the proposition as adumbrated in the brief is,

23 frankly, beyond me.

24 The Akayseu judgement, as identified, was dealing with the

25 difficulty in proving the special intent required for the crime of

Page 128

1 genocide. It wasn't saying, when you read that judgement, that there was

2 no need for special intent. It was identifying the problem that you would

3 have in proving it against an individual.

4 And at paragraph 523 of their judgement they said, and I quote,

5 "Intent is a mental factor which is difficult, even impossible, to

6 determine," adding that, "failing a confession of the accused, intent can

7 only be inferred from a certain number of presumptions of fact." While,

8 with respect, the Trial Chamber I agree with the second part of their

9 quotation, I do not, with respect, agree with the first.

10 Intent as a mental factor is not difficult or even impossible to

11 prove, and if that quote had general application, every trier of fact in

12 domestic criminal jurisdictions, be they prefects, magistrates, judges, or

13 jurists, would have difficulty in applying the criminal law to the facts

14 of a very large number of crimes.

15 In reality, the triers of fact in the criminal jurisdictions of

16 the world have no difficulty in inferring intent by drawing safe

17 conclusions from the evidence as a whole. Most jurisdictions require for

18 the crime of murder either an intent to kill or an intent to cause serious

19 harm. That intent is easily inferred by a judge from what the accused

20 does.

21 So I don't accept as a general application the proposition that

22 intent as a mental factor is difficult or impossible to determine absent

23 confession. Applying the crime of genocide to those who formulated the

24 final solution in Nazi Germany would, I anticipate, not present the

25 slightest difficulty to any lawyer in inferring the necessary intent for

Page 129

1 genocide. The commander of the concentration camps of Dachau and Belsen

2 would likewise, I anticipate, have no difficulty in having intent inferred

3 in cases were they to be brought to trial.

4 Of course, evidentially, the lower down the command structure you

5 get or the further removed sideways you get in government from the

6 decision that leads to the ethnic cleansing, the more difficulties you may

7 have in an individual case to prove intent; but that, we would submit, is

8 just a reflection of the sort of evidential difficulties that are common

9 in all jurisdictions.

10 What the Trial Chamber in this case was referring to as the

11 special intent for genocide was, we submit, something which in an

12 appropriate case could be easy to infer from the evidence in the case, but

13 clearly here, and perhaps not surprisingly here, was in fact impossible

14 for the Prosecution to sustain.

15 So we submit that the crime of genocide requires a special intent,

16 an intent that has been recognised by this Court and the Courts of Rwanda,

17 and that that special intent is necessary to elevate the crime above the

18 other criminal offences for which this Court has jurisdiction over.

19 In oral argument today, it was in fact conceded - and I wrote the

20 page and line number down, it's in fact page 35, line 11 and 12 of the

21 transcript today - it was actually conceded that the defendant would need

22 to, and I quote "Know that he is indeed destroying a group as such." Now,

23 coming from a background where oral argument is the norm, I certainly

24 don't intend to tie the Prosecution to a loose word, if it be a loose

25 word. But if that was in fact said as an accurate assertion of what the

Page 130

1 Prosecution claim the mens rea is for genocide, then with respect, it is,

2 is it not, very, very near the dolus specialis, special intent, that the

3 Trial Chamber applied, and a very long way indeed from the Prosecution

4 brief which says, "The plain and ordinary meaning of Article 4 does not

5 support the proposition that dolus specialis is required."

6 May I move to the second limb of the Prosecutor's appeal on ground

7 3.

8 Perhaps before I depart from the first, I would, if it be

9 necessary, and I anticipate it won't, remind the Court, of course, that we

10 have put in the 1948 convention and the Rome Statute, all of which include

11 what we say is the special intent and its definitions.

12 But moving to the second limb of the Prosecution's submission

13 which is couched in these words: "In law and in fact, the Trial Chamber

14 erred in paragraphs 88 to 98 when it said that the evidence does not

15 establish beyond all reasonable doubt there existed a plan to destroy the

16 Muslim group in Brcko or elsewhere within which the murders committed by

17 Goran Jelisic would allegedly fit, and that the acts of Goran Jelisic were

18 not the physical expression of an affirmed resolve to destroy, in whole or

19 in part, a group as such, rather, were arbitrary acts of killing resulting

20 from a disturbed personality."

21 Now, the second limb of ground 3 alleges errors, and I quote, "in

22 law and in fact." Now, the only error of law I have identified is the one

23 addressed in the first limb of ground 3, and I for my part have not

24 identified either, in the written or oral submission, what the error of

25 law is, if it be any different, in the second limb. And I still am at a

Page 131

1 loss as to know whether that is intended to add to ground 1, or is there

2 by way of surplusage.

3 Turning to the facts, the Trial Chamber has been criticised for

4 its conclusions of fact covering the ten paragraphs, 11 paragraphs, 88 to

5 98, and in particular, emphasis has been placed upon the reference to the

6 mental state of Jelisic which medical reports later described as a

7 personality disorder.

8 The words of the Trial Chamber, in our submission, are worth

9 examining. It's at paragraph 105. What the Trial Chamber said was this:

10 "The words and attitude of Goran Jelisic as related by the

11 witnesses essentially reveal a disturbed personality." It goes on to say

12 that, "He was immature, narcissistic, had a hunger to fill a void, and a

13 concern to please his superiors."

14 In our submission, those are conclusions that the Trial Chamber

15 was perfectly capable of coming to on the evidence they had from the

16 witnesses who were present at the time and saw the accused acting in the

17 way that he did in and around the town of Brcko when the offences took

18 place. Although there is a reference there to Dr. van der Bussche's

19 report, the Trial Chamber are referring expressly to the witnesses that

20 caused them to come to that conclusion. They're referring, we would

21 submit, to the witnesses called by the Prosecution.

22 The Court may think that you don't need a distinguished

23 psychiatrist to tell you if somebody is immature. You can make that

24 judgement yourself on the evidence that's presented to you. You don't

25 need a psychiatrist to tell you if somebody is narcissistic or has a

Page 132

1 concern to please his superiors. These are conclusions of fact that one

2 could make day in and day out as the trier of fact in a criminal case.

3 There's nothing, we submit, indicative in paragraph 105 that

4 points to the Trial Chamber, as it were, importing post-verdict reports

5 into pre-verdict conclusions.

6 And if I may just make a broad submission to begin with on the

7 facts, the judgement of a Court, particularly a short written judgement

8 following a more lengthy oral judgement, is not intended to be a complete

9 review of each piece of evidence that has been called before the Chamber

10 in what was inevitably a long trial. Far less is it to be a document to

11 be examined with the same skill as a Jesuit scholar by studying an ancient

12 Roman transcript. It is the reasoning of a Court in coming to a

13 conclusion, a certain latitude must be allowed in their use of language

14 which is designed only to express the conclusions that they have come to

15 in the course of their deliberations.

16 Obviously any judgement, certainly a written one as short as this,

17 will inevitably fail to mention an enormous amount of the evidence that

18 was called. It's humanly impossible to insert all the relevant evidence

19 in a judgement of this length. It is not the intention of the Trial

20 Chamber so to do.

21 The error that the Prosecution make is to assume that the absence

22 by the Trial Chamber or the failure of the Trial Chamber to allude to a

23 particular piece of evidence indicates that they ignored it or forgot it.

24 No such assumption can safely be made. Indeed, we would submit that the

25 Court could confidently proceed upon the basis that the Trial Chamber was

Page 133

1 well aware of the evidence that had been presented in the most painstaking

2 manner possible to it over month after month. It is quite wrong to say

3 that just because a piece of evidence is not alluded to, they hadn't

4 considered it and given it due weight.

5 What the Trial Chamber did, in our submission, was to properly

6 apply the law to the facts as they found them. They did it, we submit,

7 with care, accurately applying the requirement that the law demands for

8 the proof of the special intent necessary for the offence of genocide.

9 The Prosecution assert that the evidence proves guilt on the

10 offence of genocide in part because they don't accept the need for the

11 proof of the special intent that the Trial Chamber applied to the

12 evidence. Although in paragraph 496 at page 82, they submit in the

13 alternative that, and I quote: "It in no way precludes his unconscious

14 desire or a firm resolve to destroy" -- I'm sorry. I've just slightly

15 lost my place. May I start again.

16 The Prosecution really have two stances. First they say the Trial

17 Chamber got it wrong because they wrongly assumed you needed a special

18 intent or, as refined today, they did need a special intent but not what

19 you think it means. But their second line is, "Even if we're wrong, even

20 if the law is as we've always understood it to be and the special intent,

21 the dolus specialis, is required, then nonetheless, the evidence here

22 proved that special intent."

23 I'd like to deal with that at this stage.

24 The Prosecution -- the Trial Chamber, in our submission, correctly

25 identified the distinction between genocide and other crimes against

Page 134

1 humanity and properly applied the facts to the law.

2 Now, it was recognised by the Appeals Chamber in the Tadic appeal

3 that a decision on the facts will not be reversed unless, and I quote:

4 "The evidence relied on by the Trial Chamber could not reasonably have

5 been accepted by a reasonable person." Page 28, paragraph 64.

6 So do the facts provide evidence that Jelisic, with intent to

7 destroy or in part a national, ethnic, or religious group or does he prove

8 that he killed 12 Muslims, plus three more he admitted to that weren't the

9 subject of charges, because they were Muslims and not as part of any wider

10 plan?

11 Those are the two possibilities. Either he killed the 15 people

12 that he did, no more, for capricious reasons, narcissistic reasons,

13 because they were Muslims, because he wanted to demonstrate the power that

14 he had over them, or did he kill them because it was part of a scheme of

15 ethnic cleansing and he had, when he killed those people, the intent to

16 destroy, in whole or in part, a national, ethnic, racial, or religious

17 group? Those are the two questions that will decide the verdict. Could

18 the Prosecution prove the second.

19 Well, we invite the Court to extend its analysis of the judgement

20 from paragraph 88 right through to paragraph 108 because in our

21 submission, it reveals a detailed and careful analysis of the evidence.

22 There are three possible conclusions. One is that there wasn't

23 sufficient evidence of genocide at all; two, there was not sufficient

24 evidence to prove genocide beyond reasonable doubt; or three, there was

25 evidence from which the Trial Chamber could be satisfied that genocide had

Page 135

1 been proved. Each of those propositions is directed, of course, against

2 Jelisic personally.

3 The judgement identified many inconsistencies in the evidence as

4 to how people were selected for execution, and indeed often there was no

5 selection at all but it was totally random. It emphasised that the

6 evidence proved that 66 people died in the Brcko camp - not obviously all

7 killed by the defendant - despite Exhibits 12 and 13 that suggested a

8 death toll of more. That had to be viewed against a total Muslim

9 population of 22.000 in 1991, approximately 55 per cent of the total, and

10 a remaining population of about 2.000 to 3.000 Muslims after the

11 destruction of the bridges on the 30th of April, 1992, that coincided with

12 calls for the town to be divided, on ethnical grounds, into three parts.

13 The evidence quoted in the Prosecution submission is, of course,

14 selective. The Trial Chamber had the benefit of seeing and hearing all of

15 the witnesses. They did not accept that the evidence of the various lists

16 referred to, of which I have alluded to two in particular but of course

17 there were more, were evidence from which they were satisfied genocidal

18 intent could be inferred.

19 JUDGE SHAHABUDDEEN: Mr. Clegg, I don't want to cramp your style.

20 Would you be much longer? Because we are hoping to adjourn for the day

21 around 5.00, 5.15, and to take a break, a short break, but that must

22 accommodate itself to your convenience at this time.

23 MR. CLEGG: If the Court were to rise now for a break, I would

24 certainly finish by 5.15. I may finish, I hope, by 5.00.

25 JUDGE SHAHABUDDEEN: Well, then, the sitting stands adjourned.

Page 136

1 --- Recess taken at 4.15 p.m.

2 --- On resuming at 4.34 p.m.

3 JUDGE SHAHABUDDEEN: The sitting is resumed. Mr. Clegg.

4 MR. CLEGG: If I could just take the Appeal Chamber to the

5 judgement of the Trial Chamber, to firstly paragraph 65. The conclusion

6 there: "Although the Trial Chamber is not in a position to establish the

7 precise number of victims ascribed to Goran Jelisic in the period in the

8 indictment, it notes that in this instance the material element of the

9 crime of genocide has been satisfied. Consequently, the Trial Chamber

10 must evaluate whether the intent of the accused was such that his acts

11 must be characterised as genocide."

12 Now, the only conclusion the Trial Chamber is coming to there is

13 effectively that the actus reus necessary for the crime of genocide has

14 been proved. It's not making any conclusion about whether in fact

15 genocide has been proved as taking place in the camp where he worked.

16 If you turn to paragraph 87, it there identifies the first

17 question that they address. "Before even ruling on the level of intention

18 required, the Trial Chamber must first verify whether an act of genocide

19 has been committed as the accused cannot be found guilty of having aided

20 and abetted in a crime of genocide unless that crime has been

21 established."

22 Then considers the evidence as to whether genocide has been

23 proved, and at paragraph 98 comes to this conclusion: "The Trial Chamber

24 considers that in this case the Prosecutor has not provided sufficient

25 evidence allowing it to be established beyond all reasonable doubt that

Page 137

1 there existed a plan to destroy the Muslim group in Brcko or elsewhere

2 wherein which the murders committed by the accused would allegedly fit."

3 Now that, we submit, is a crucial finding of fact. What the Trial

4 Chamber has there determined is that there was no sufficient proof that

5 there was a genocidal plan put into place in Brcko at the time the

6 appellant committed his killings. That crucial decision is far more

7 important when one comes to consider the ultimate verdict than the second

8 decision, namely, the one that is addressed at paragraph 99, namely,

9 whether as a perpetrator, Jelisic could be declared guilty of genocide.

10 Now I -- and the Trial Chamber concede that is theoretically possible, but

11 clearly has obvious evidential difficulties.

12 What the Trial Chamber concluded was that the events as proved in

13 Brcko did not establish that a genocidal plan was in fact being put into

14 operation by those working in the camp.

15 Now, the murders that Jelisic pleaded guilty to committing, and

16 they were the subject matter of an agreement of facts between the parties

17 before the trial for genocide commenced, were, firstly, lacking in any

18 degree of organisation. They lacked planning, and although there was a

19 degree of consistent method, they were, in many senses, random.

20 All of those factors are inconsistent with the existence of a

21 personal genocidal plan that would be necessary in the light of the Trial

22 Chamber conclusion at paragraph 98. They've rejected an overall plan in

23 which he played a part and are now seeking to say whether, in effect, he

24 was on a one-man genocide mission, and have come to the conclusion that

25 the lack of planning and the random nature of his conduct could not enable

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Page 139

1 them to come to that conclusion, despite the fact that he chose most, if

2 not all, of his victims because they were Muslims, and despite the fact

3 the evidence gave propensity to be cruel to them; as did, I venture to

4 suggest, almost every defendant before this Court has since its inception,

5 going right back to the first case of Dusko Tadic who evinced a propensity

6 to kill Muslims and to be cruel to them, but he wasn't guilty of genocide.

7 Firstly, there was no plan to destroy the Muslim group in Brcko.

8 That is a conclusion in paragraph 98. I've just read it. Secondly, there

9 is no evidence that Jelisic alone formed such a plan, which follows in

10 paragraphs 99 and onwards.

11 If necessary, we would submit that when properly analysed, the

12 evidence does not meet the bare sufficiency test in Rule 98 because in the

13 absence of evidence of a genocidal plan embracing all of the killings,

14 there was, in truth, nothing to suggest that he was on an individual

15 genocidal mission. Indeed, his actions identified by the Trial Chamber in

16 allowing people to be released, often on a whim, often at random, is

17 inconsistent with there being a genocidal plan. And there can be no doubt

18 that hundreds and hundreds of Muslims were released from this camp, and

19 true, some were later rearrested; and true, some did disappear; and true,

20 some, very sensibly, fled, but the fact of the matter is that hundreds and

21 hundreds, if not thousands, were actually released alive. And it is, with

22 respect, no surprise that the Trial Chamber came to the conclusion that

23 the very charging of genocide in this -- on the facts of this particular

24 case was, frankly, overcharging or overindicting a case where there had,

25 in truth, been a complete admission by the accused to every killing that

Page 140

1 he had been responsible for.

2 JUDGE SHAHABUDDEEN: Mr. Clegg, I sense an assumption underlying

3 your submissions to the effect that proof of the existence of a plan is a

4 legal ingredient of the crime of genocide. Now, it may be that there is

5 some disputation on this matter.

6 Am I right in saying that the Prosecution -- in my impression,

7 that the Prosecution has put this matter in issue and are you proposing to

8 reply to it?

9 MR. CLEGG: I don't submit that there must -- that it is a legal

10 requirement that there is a plan of genocide embracing more than one

11 person. As an evidential matter, it is difficult to envisage a case of

12 genocide without there being evidence of such a plan, but it isn't a legal

13 ingredient of the offence.

14 It's possible for one person to commit genocide all by himself, in

15 theory, as the Trial Chamber recognised. Again, in practice, it would be

16 very difficult to imagine such a case. But it could occur and, in a

17 sense, that would negate the necessity for a plan unless you could, as it

18 were, create your own plan, put it into operation all by yourself, which

19 would be no more than acting on the basis of your own special intent which

20 you'd formed. So I'm not suggesting it was a legal requirement, but it

21 is --

22 JUDGE SHAHABUDDEEN: I fully understand your position on that

23 point.

24 MR. CLEGG: It is, we submit, a matter of evidence that will

25 almost invariably be required before the offence can be proved.

Page 141

1 Now, we say the Prosecution brief contains serious errors of

2 understanding of the Trial Chamber's reasoning. What the Prosecution

3 brief asserts at paragraph 494, at page 81, is and I quote:

4 "The Trial Chamber finding that the accused `individual

5 perpetrator' did not act with genocidal intent is based exclusively on the

6 conclusion that he killed arbitrarily rather than with the clear intention

7 to destroy a group."

8 With respect, that does no justice to the reasoning of the Trial

9 Chamber at all. They expressly referred to his conduct in setting Muslims

10 free and made specific reference in a footnote to Witness E, who gave

11 evidence about that. It concluded the killings were opportunistic and

12 that his behaviour was inconsistent. Inconsistent, opportunist, and

13 random behaviour legitimately can be weighed against the contention that

14 he had formed a special intent to act in a personally genocidal way

15 towards the Muslim community, but it is quite wrong to assert, as they do,

16 that that was the exclusive basis for the Trial Chamber's conclusion.

17 All consideration of his personal state of mind has to be looked

18 at against the far more important conclusion that the existence of a plan

19 to destroy the Muslim group in Brcko had not been proved.

20 Can I just say a word about the approach that has been adopted by

21 the Prosecutor in part where it says to the Appeals Chamber, the people in

22 Brcko regard this as genocide. You must, as it were, so describe it to

23 give justice to the deceased and the survivors.

24 If -- and I assume that there is some evidential basis for them

25 saying that, if it be true, the distinction between the crime, a war

Page 142

1 crime, and genocide is obviously a specific legal distinction.

2 Bluntly, it matters not what a member of the public might think

3 about a description being applied to the individual crimes. It does

4 nothing to assist the Appeals Chamber, as it were, to pray in aid the

5 impact of any decision on the survivors or the public at large if they

6 cannot prove, and they cannot prove, an essential ingredient of the crime

7 of genocide, then no genocide is proved. It still means that Jelisic will

8 remain convicted of serious crimes against humanity for which he will

9 obviously pay an appropriate penalty. Nobody quarrels with that. It's

10 not as though this Court were excusing his conduct in some way by not

11 giving it the legal description of genocide.

12 The relief sought by the Prosecution, finally, is a retrial. For

13 reasons I've already said, if ground 1 and ground 2 either succeed or

14 fail, we would say there should be no retrial unless the Prosecution are

15 right on ground 3, because if they're not right on ground 3, the Trial

16 Chamber came to the right conclusion, even if it was by the wrong route.

17 Even if the Prosecution were right, even if they were, and there

18 was some prima facie evidence of genocide, we would submit that the

19 decision to order a retrial is discretionary. And where somebody has

20 spent three years in custody already, he is still only a young man, and

21 where all of the witnesses have already undergone the painful ordeal of

22 having to relive these events once by giving evidence, the Court is

23 entitled to reflect, in light of the guilty pleas that he has already

24 tendered, where the interests of justice do in fact demand that there be a

25 retrial in this case. And the Appeal Chamber would be perfectly entitled

Page 143

1 to bear in mind the pragmatic factors, including, firstly, when a retrial

2 could realistically take place in the light of the backlog that exists in

3 this Chamber; and secondly, whether in the light of the pressure that

4 exists on Court time, a retrial would in any event be justified. Those

5 submissions are, of course, only made on the basis that the Court may

6 reject my primary submission.

7 But I'm glad to say the break resulted in a certain concentration

8 of my mind within my allotted time. That concludes my submissions.

9 JUDGE WALD: I have one question with two parts, Mr. Clegg. I

10 have a little difficulty reconciling what I think I heard you say that as

11 to the proper standard of review on 98 bis -- or I'm sorry, the proper

12 standard that the Trial Chamber should have applied, that of whether any

13 reasonable Trial Chamber could find that the Prosecution had made its case

14 beyond a reasonable doubt, a so-called objective standard, as it were,

15 with what I believe you said later on, and that is that we should consider

16 it that the Trial Chamber applied the correct law to the facts as they

17 found them, and then you cited to us a passage from Tadic dealing with

18 discretion of the Appellant Court normally not to overrule a trial court's

19 finding unless it was grossly in error.

20 Now, I think you can anticipate my question. How do you apply an

21 objective standard of what any reasonable Trial Chamber would do if you

22 have already decided that this Trial Chamber is entitled to deference on

23 certain basic findings of fact, unless, of course, the facts were

24 stipulated or something like that? It seems as though you're combining an

25 objective standard, but then saying it can only be applied to facts which

Page 144

1 we must give discretion to this Trial Chamber's finding. Might not a

2 different reasonable Trial Chamber have made different findings of fact

3 which might perhaps have led it to a different conclusion on the standard?

4 MR. CLEGG: Yes. I think I expressed myself badly. The test that

5 I submit should be applied at the Rule 98 stage is whether a, whether a

6 reasonable Trial Chamber properly applying the facts to the law could

7 safely return a verdict. We say that that should be the test at that

8 stage. And that is personal to -- that must be looked at, as it were,

9 through the eyes or mind of the Trial Chamber concerned, so -- I'm not

10 expressing myself very well.

11 JUDGE WALD: It's a very difficult concept, I'm well aware.

12 MR. CLEGG: The Rule 98 ought to be an objective test. I think I

13 must concede that. In other words, could a reasonable Trial Chamber

14 convict on this evidence? It could reasonably; therefore, absent anything

15 else, the trial were to continue.

16 The test that the Appellant Court applies is in many ways the same

17 test but differently described. You look at the decision of the Trial

18 Chamber on the facts and say, well, could a reasonable Trial Chamber have

19 come to the conclusion that he was guilty or not guilty of that charge?

20 Even though you yourself sitting in your appellant capacity might think if

21 I had been trying it, I probably would have found him guilty or I'd

22 probably have found him not guilty. If a reasonable judge could have come

23 to the opposite conclusion, you don't disturb the verdict. You only

24 disturb the verdict if your conclusion is that no reasonable judge could

25 have come to that concussion.

Page 145

1 JUDGE WALD: To just follow through, I find that a little

2 difficult to follow in the sense that if on a motion for judgement of

3 acquittal in mid-trial you are really applying a standard that no

4 reasonable Trial Chamber could have said, "Let's go ahead with the trial,

5 I think there's enough evidence to make the Defence present its case," why

6 wouldn't the proper stance for an Appellant Court be to say, "We will look

7 at all the evidence that's in the record as at that time, and we will

8 decide a l'insuffisance or sufficiency whether any reasonable Chamber

9 could have decided that there was in fact enough evidence to proceed with

10 the trial rather than giving the usual kind of deference we give to the

11 judgement at the end of all of the evidence. I guess that's my basic

12 question.

13 MR. CLEGG: I think the answer to that is because you're a Court

14 of Appeal, not a court of review. You're not reviewing what the Trial

15 Chamber has decided in a strict way; in other words, you're looking at

16 what they've done, seeing if they've come to the right conclusion. What

17 you're doing is considering an appeal that they couldn't have come to that

18 conclusion.

19 So it's a difference or a distinction between the sort of function

20 that you would have if you were to undergo a retrial here of the facts as

21 opposed to sitting in an appellant capacity to see if something has gone

22 procedurally wrong in the lower court, or a decision has been made that no

23 reasonable Tribunal could have arrived at.

24 Now, there are quite powerful reasons why that ought to be the

25 case. The first is, of course, that none of this -- no one in this court

Page 146

1 has seen the witnesses and have been able to form that essential judgement

2 that a Trial Chamber can form through actually seeing and judging a

3 witness when they give evidence. There's no point just reading out what a

4 witness says from a cold transcript. Everybody in court might have said,

5 "Well, he might say that, but I don't believe a word he said."

6 So you haven't got the advantage of having seen the evidence, and

7 in a system of criminal justice is dependent on primarily oral testimony,

8 the reliance on oral testimony that is the root to the verdict for the

9 Trial Chamber, and that's why I would submit the test is as I've

10 adumbrated it.

11 JUDGE SHAHABUDDEEN: Just if I may, a follow-up on the questions

12 asked by my colleague, is there any merit in the view that the Tadic test

13 to which you have referred pertains to the final evaluation made by the

14 Trial Chamber of all the evidence in the case, and more particularly, at

15 the stage where it is making a definitive finding of guilt or innocence?

16 At that stage, would it be possible to say that the Appeals Chamber could

17 be asked to reevaluate the questions of credibility and weight; whereas

18 here you have a situation in which, normally speaking, judgement stands

19 suspended on questions of credibility, weight, and reliability.

20 MR. CLEGG: I wouldn't, with respect, accept any distinction of

21 the type that you've postulated. The issues of credit, weight, and

22 reliability must primarily be formed on the assessment of the witness who

23 gave the evidence. It's not frequent that another witness will be able to

24 affect the weight or reliability unless the witness gives some evidence

25 that is contrary to the first. So that the primary assessment of the

Page 147

1 witness must be based on what view the Court formed of the witness as he

2 or she gave evidence. There ought not to be a different test performed by

3 the Appellate Chamber or a different standard applied to the Appellate

4 Chamber from the Tadic test merely because the finding here was made at

5 the close of the case for the Prosecution, one reason being supposing the

6 Court had said, as I gave by way of example, "It may help you to know,

7 Mr. Greaves, that we are most unimpressed with the quality of evidence

8 that has been called so far," and Mr. Greaves was astute enough to spot a

9 broad hint when he was given it, and said, "Well, I think in those

10 circumstances, I'll send my 60 witnesses back from where they came. I'll

11 call no evidence." Then you would, presumably have to apply the Tadic

12 test because it would be a test based on all the evidence.

13 Here, in reality, one's in the same position. The Court -- and

14 one can see that the normal courtesies that normally exist between bar and

15 bench did slightly collapse in this case towards the end and that may be

16 reflective of some of the problems that occurred, but had the Court done

17 that, no complaint could be made. The fact that they didn't shouldn't

18 alter the standard that's applied by this Chamber because it is,

19 nonetheless, a decision made on all the evidence that they heard.

20 JUDGE SHAHABUDDEEN: One last question. This has to do with the

21 question of intent. Now, the Statute itself tells us what kind of intent

22 is contemplated, intent to destroy in whole or in part a national group,

23 et cetera, but is there a preliminary question as to what "intent" itself

24 means?

25 This morning, Mr. Bergsmo gave us an analytical framework in which

Page 148

1 he spoke of a volitional act, a cognitive act, and I think he mentioned

2 the word "desire." The question is this: Does intent there mean a purely

3 or a merely volitional act or does it means a volitional act plus

4 something more which makes it into a desire?

5 I understand you to be saying, "Well, look, it's a problem of

6 interpretation really. When the Trial Chamber spoke of a dolus specialis,

7 it was referring to intent in the way meant by the Prosecution, so there

8 is no problem there."

9 MR. CLEGG: Certainly in the way that the Prosecution presented

10 their oral argument today as I followed it, I agree. I think in their

11 written brief they were adopting a rather different stance, as I attempted

12 to identify.

13 The word "intent" when arrived to genocide, in our submission,

14 reflects a state of mind that the accused must have. I don't -- I'm not

15 attracted to the words "desire" or "motive." What the Statute demands is

16 that the person must have a state of mind, and that state of mind must be

17 proved by the Prosecution, and that state of mind is that his actions in

18 killing will be part of the process of, in whole or in part, destroying

19 and so on. So he has to be killing with that state of mind as furtherance

20 of that state of mind that he personally holds.

21 JUDGE SHAHABUDDEEN: No further questions, Mr. Clegg. We thank

22 you very much.

23 Mr. Prosecutor. Your short reply will be welcome.

24 THE INTERPRETER: Microphone to the counsel, please.

25 MR. GUARIGLIA: Thank you, Your Honour. I'll be very brief on

Page 149

1 grounds 1 and 2.

2 On ground 1, the only thing that the Prosecution wishes to say is

3 that this invitation of my learned friend to adopt a right decision/wrong

4 route approach in relation to the violation of the Prosecution's right to be

5 heard is a very slippery slope, and we would request the Appeals chamber

6 to refrain to adopt such a route in the case of a

7 violation of fundamental rights of either party.

8 If we had a situation in which the Prosecution, after presenting

9 opening arguments, was deprived of its rights of calling evidence on the

10 basis that that Trial Chamber was not persuaded of the quality of the

11 Prosecution's case, we wouldn't be even questioning whether the final

12 decision was correct or not. We would say that the Prosecution's right to

13 present a case, which has been recognised by this Appellate Court, was

14 fundamentally violated and we invite you to make a similar finding in the

15 case of our right to be heard.

16 As far as the second ground of appeal is concerned, at the outset,

17 counsel for the Prosecution wishes to apologise to the Appeals Chamber for

18 not bringing to the Appeals Chamber's attention the clear findings of the

19 Appeals Chamber in the Celebici decision as far as the standard under

20 Rule 98 bis is concerned, which is incorporated in paragraph 434 of

21 the decision, and it adopts precisely the same standard that the

22 Prosecution is advocating for.

23 Two points of clarification, the first one dealing with

24 Judge Wald's question this morning, picked up by my learned friend today

25 as to whether it makes any difference when we have a single

Page 150












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13 and English transcripts.













Page 151

1 judge. My learned friend is correct. We are relying on a case of the

2 Court of Appeal of Ontario dealing with a jury case. However, that case

3 relies on two identical decisions in the cases of single judges, and the

4 standard that they adopt, as they say, is that it in very simple cases

5 where the Court of Appeal is in a position to, without speculation, assess

6 what would have happened had the case continued, that the Court of Appeal

7 may apply a no-substantial-wrong doctrine, but in all other cases where

8 the Court of Appeal has to engage in a speculative exercise, the Court of

9 Appeal should refrain from doing so and that is the standard that we are

10 advocating for.

11 Finally, we think that basically there are sound reasons for

12 keeping this strict division between trier of fact and trier of law

13 regardless of the fact that it's the same Trial Chamber, and I think that

14 Judge Wald's question highlighted the issue about this confusion between

15 an objective standard under Rule 98 bis and deference to the Trial

16 Chamber's discretion as a trier of fact. This shows the negative

17 consequences of mingling both functions, and at the end of the day, the

18 issue before you is whether at that stage of the proceedings the objective

19 standard under Rule 98 bis was met or not. You don't have to weigh the

20 evidence, you don't have to reassess the evidence, you just have to

21 analyse whether that objective standard at that stage of the proceedings

22 had been met or not. And if the answer is it had been met, then there was

23 a clear error of law by the Trial Chamber that you have, herein, the

24 authority to correct.

25 That finishes our reply to grounds 1 and 2.

Page 152

1 MR. BERGSMO: Your Honours, a few observations on the requisite

2 mental state under Article 4. First, the Prosecution has made no

3 concession that there is a dolus specialis or conscious desire requirement

4 under Article 4 of the Statute. The position of the Prosecution remains

5 as described in paragraph 4.9 of the Prosecution's brief, as elaborated by

6 the oral submissions made this morning.

7 The reference I made this morning to the requirement of knowledge

8 of actual destruction of the group as such, as referred to by my learned

9 colleague from the Defence, only refers to category (b) in paragraph 4.9 in

10 our brief, nothing else. Category (a) in that same paragraph of course

11 stands on its own feet, requiring conscious desire.

12 Second, the Defence describes paragraph 66 in the Trial Chamber's

13 judgement as a textbook definition of specific intent. It requires,

14 according to the last sentence of that paragraph, a genocidal plan as one

15 of two elements which it in some unusual way deduces from the particular

16 intent element. Counsel has just conceded that there might not be an

17 element in Article 4 of the Statute requiring a genocidal plan.

18 The Preparatory Commission for an International Criminal Court had

19 to deal with this question in connection with the development of the

20 document on elements of crimes in the context of its Article 6 on

21 genocide, and it took a different approach than that of requiring a plan

22 of genocide. Instead, it created, it made a new element - and this was

23 openly attested to by the delegates who took part in the negotiations - an

24 objective contextual element to genocide which requires that the genocidal

25 conduct, and I quote, "took place in the context of a manifest pattern of

Page 153

1 similar conduct directed against that group," or that the genocidal

2 conduct, quote, "could itself effect such destruction."

3 I happened to be the Tribunal's representative to these particular

4 negotiations in New York, and it may interest the Chamber that several

5 delegates, during the negotiations, referred specifically to the "Jelisic

6 scenario" when this element was being discussed. The fact that the language

7 says "a manifest pattern of similar conduct," and does not say "a manifest

8 pattern of other genocidal acts," or "an objectively existing genocide,"

9 is a reflection of the desire of delegates to ensure that the situation

10 where you have a campaign of persecution out of which arises one or more

11 perpetrators who have the necessary genocidal intent must not fall

12 outside the scope of the Genocide Convention, and it was in that

13 connection that delegates, lawyer delegates, especially from Canada, would

14 refer to the Jelisic scenario as an important case that had to be kept

15 within the scope of application of Article 6 of the ICC Statute.

16 Interestingly, the Commission had the courage to change the law as

17 it is spelled out in the Genocide Convention insofar as the objective

18 context of genocide is concerned, but they did nothing of the sort when it

19 comes to the mental state requirement. Instead, if anything, they toned

20 down the language of the mental state requirement. Whereas in the Statute

21 it says "with intent to destroy," et cetera, it now says in the ICC

22 elements document that, the accused must simply have intended to destroy

23 in whole or in part that group as such.

24 And, Your Honours, the word "intended" in this particular context

25 has been used in 12 of the offences in Article 8 of the ICC Statute, which

Page 154

1 deals with war crimes. Your Honours, are all those offences dolus

2 specialis or conscious desire offences? We humbly submit that that is not

3 the case.

4 Three, the Defence suggests that the only difference between

5 crimes against humanity and genocide is the specific intent requirement

6 for genocide. But what about the elements for crimes against humanity

7 requiring, first, the existence of a widespread or systematic attack;

8 secondly, that the conduct of the accused was part of such a widespread

9 and systematic attack; thirdly, that the accused knew that his conduct was

10 part of such a widespread or systematic attack; and fourthly, which is

11 specific to the Statute of the Tribunal, the requirement that there was an

12 armed conflict? None of those four elements apply to the crime of

13 genocide.

14 Four, the Defence seems to attempt to reawaken the old discussion

15 on rulers of state and genocide, suggesting, effectively, that only the

16 authors of genocide can be held liable for genocide. This view was

17 advanced by France during the negotiations of the genocide convention. I

18 refer to the proposal A/C.6/224 which we have provided, we have provided

19 transcripts of the discussions on that proposal to the Chamber. The

20 discussions were concluded with a vote. Forty states were against the

21 proposal, two states voted in favour.

22 The Chamber should not accept a view which, if it was applied to

23 Nazi Germany, would convict one commander of a death camp for genocide,

24 whereas another commander of another camp could merely be described as

25 having been militarily ambitious with fundamentally different verdicts and

Page 155

1 sentences.

2 Five, the Defence refers to ad hoc Tribunal jurisprudence. The

3 Jelisic judgement is, of course, the only ICTY judgement on genocide so

4 far which is why this appeal is so important and why it is so important

5 that the legal questions concerning genocide be properly briefed.

6 One of the first, if not the first, of the ICTR decisions on

7 genocide was Akayesu. The Prosecution is of course aware that this

8 judgement refers to special intent or dolus specialis, but at the same

9 time in paragraph 520, it refers to "knew or should have known" as the

10 requisite standard.

11 This is a standard that is lower than both categories (b) and

12 (c) in paragraph 4.9 of the Prosecution's submission. "Should have known"

13 is not even a probability standard, one could argue. The Prosecution

14 submits that this seeming contradiction in the Akayesu judgement is such

15 that the judgement cannot be used against the Prosecution position set out

16 in section 4(B) of our brief. The later Rutaganda and Musema judgements

17 express agreement with the Akayesu finding on genocidal intent and, as

18 such, they remain tainted by that same contradiction. In any event, none

19 of these decisions are binding on this Appeals Chamber.

20 Six, the Prosecution does not share the understanding of Defence

21 of the texts submitted written by Gil Gil.

22 And finally, the Prosecution position remains that one need not

23 resort to supplementary means of interpretation to conclude that dolus

24 specialis is not the only mental state that satisfies Article 4. This

25 position follows from the wording of the mental state in Article 4, read in

Page 156

1 its context and in light of the object and purpose of Article 4 and the

2 Genocide Convention.

3 I then pass the word to my learned colleague, Mr. Nice.

4 MR. NICE: Your Honours, I can be very brief, I think.

5 The question of law contained within our ground of appeal for

6 which my learned friend Mr. Clegg was searching is fully argued at 4.89

7 and following in our brief, and is an argument that didn't need repeating

8 in the limited time today, and it's to the effect that motive cannot -- or

9 can affect legal intent. That was the legal argument. It's been fully

10 argued in writing before you.

11 Second, one word about judgements, whether they are full or not.

12 Frequently in this Tribunal they are indeed full. When they are not full,

13 and when they have not followed argument, it is less and less possible to

14 place reliance on them. The suggestion, and I simply stand by our earlier

15 position, that they correctly applied the law to the facts is countered by

16 the mass of material which I have only, of course, been able to summarise

17 which shows not only evidence totally overlooked, and I drew your

18 attention to a couple of examples, but points manifestly to contrary

19 arguments that would have been stimulated by consideration of the evidence

20 and which simply were never reflected in the judgement and, by inference,

21 in the argument.

22 It is not the case, that is, it is accepted that Jelisic killed

23 only 15 people. Those he admitted for the other crimes for which he was

24 sentenced, yes; but the genocide evidence at trial showed direct and other

25 responsibility for many more, which is one of the reasons why

Page 157

1 short-circuiting that trial was such a wrong for the Trial Chamber to have

2 done.

3 Likewise, the figure of 66 killed is not an accepted figure at

4 all. The Chamber will know from our pleadings that there are several

5 pieces of evidence pointing to 2.000 of the 3.000 remaining Muslims being

6 killed, and of course, the evidence we've had of the target group that was

7 selected.

8 It is not the case that the schedule before you is selective. On

9 the contrary, it was produced for me and under our supervision, but by

10 someone comparatively a stranger to the case. And it is because we knew

11 of the problems that come with assessing evidence of this scale, not

12 particularly large trial, but a substantial trial, and because of the way

13 the defendant answered questions, moving the agenda himself, we simply

14 identified topics and had them selected.

15 I accept my learned friend Mr. Clegg's analysis of how the Chamber

16 was moving between paragraph 65 and 87. I accept his analysis of what the

17 Chamber were doing. I entirely reject as remotely sustainable on the

18 available evidence the Chamber's finding that there was no plan. This was

19 not -- and again, I can simply ask Your Honours to look at the material

20 with more time and reflection, random to a degree but well within an

21 overarching plan that wasn't just binding on Jelisic, but was, as he

22 himself complained, being put into effect by others who were as guilty as

23 he. Not a question of hundreds and hundreds released, very much more

24 guarded than that.

25 And as to the particular actions of Jelisic, I dealt in closed

Page 158

1 session with a topic on that this morning. And as we may discover

2 tomorrow, the Prosecution's position, as reflected not least by the

3 officer dealing with him in his interviews, was that his responses at the

4 time, as indeed in an interview, were cynical and self-serving; although

5 the Chamber will probably have in mind the quotation from the case of Pole

6 that I think finds expression in one of our pleadings to the effect --

7 this is from, of course, the war crimes at Nuremberg trials. "It is not

8 an unusual phenomenon in life to find an isolated good deed emerging from

9 an evil man." The quote goes on, "Because of convenience, caprice, or

10 even a sudden ephemeral gleam of benevolence forcing its way through a

11 callused heart, even a murderer can help a child to safety. A grim humour

12 can cause a slayer to save his intended victim, but whatever the cause

13 which motivated "X's" benevolence to `Y,' a kind deed is not enough to

14 obliterate his indifference to the wholesale suffering of which he could

15 not but be aware, and to alleviate which, in spite of his protestations,

16 he did little or nothing."

17 So though we do not accept and did not accept any good motivations

18 by Jelisic, for we said the matters referred to by my learned friend are

19 explicable otherwise, even if there were such isolated acts of no

20 significance, the suggestion that the ordinary person can make findings

21 about narcissistic behaviour and so on is simply, and with great respect,

22 wrong. The terminology in that paragraph is all borrowed effectively from

23 the last report, I think, of van den Bussche submitted to the Chamber

24 after they had made their decision about genocide.

25 I only return to the reference to Brcko and its inhabitants to

Page 159

1 correct a misapprehension of my learned friend. Of course, civilian

2 residents of a community have no right to have a word that they use in one

3 way determine in the way they'd like to have it used by a Court. Of

4 course not. And as I said, their only interest was in having the matter

5 fully determined.

6 And since your discretion is prayed in aid by reference to the

7 victims' witnesses, if I didn't say this this morning, our understanding

8 is, and we make our application for a retrial on this basis, that the

9 witnesses are indeed willing to give evidence, many of them being far more

10 concerned that the matter should be fully litigated, even at their own

11 inconvenience.

12 Those are all our conclusions -- our submissions.

13 JUDGE SHAHABUDDEEN: Let me ask you one question. Mr. Clegg, as I

14 understand him, argued this: You devoted some attention this morning to

15 demonstrating that there was evidence on which a reasonable tribunal of

16 fact could bring if a verdict of guilty. I understood him to be saying

17 that that isn't the point. That you had to show that there was no

18 evidence on which the Tribunal in this case could find as it did. It

19 isn't therefore a question of whether there was any evidence on which a

20 reasonable tribunal of fact could find otherwise; it's a question as to

21 whether there was any evidence on which this Tribunal could find as it

22 did.

23 Would an answer be this, would there be any merit in an answer

24 like this, that the issue here is really different from the issue which

25 arises on the final decision in evidence. This is a mid-trial decision,

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1 and the question is whether the Prosecution evidence, if accepted, could

2 sustain the conviction by a reasonable tribunal of fact, and that entitles

3 you to point to evidence which had that effect, evidence which would have

4 entitled a reasonable tribunal of fact to decide that the evidence before

5 it could sustain a conviction.

6 MR. NICE: That's a formulation with which I know we all entirely

7 agree, for the reasons advanced by my learned friend Mr. Guariglia and for

8 other reasons. And I would respectfully dissent from the view my learned

9 friend Mr. Clegg has expressed about how judges in fact deal with cases

10 midway.

11 As I think Your Honour suggested, it's not just a question of

12 technically suspending judgement as a judge until termination of the case,

13 evidence, and argument. It is, if you are to do the job of -- if one is

14 to do the job of judge properly, genuinely to suspend judgement until all

15 the evidence is in and all the argument is advanced. It is for that

16 reason that I touched on the issue in response to the observation by Her

17 Honour Judge Wald earlier about the conduct of judges trying cases alone.

18 And if I may respectfully trespass on your time for this single

19 point. In adopting Your Honour's formulation, what would be appropriate

20 for a single judge is to be applied even more so to a bench of three

21 judges. Mr. Clegg says, "Well, effectively, the single judge could at the

22 end of a non-criminal case, civil personal injury action, could say to

23 counsel, well, I'm not very impressed by your specialist doctor." He

24 could. It's a dangerous course to take because he might infect the

25 conduct of the trial in a way he can't predict, but he might do it,

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1 dangerous, slippery slope though it may be.

2 But where there are three judges with three brains and three

3 minds, it would be quite wrong even to attempt such provisional

4 formulations of views because they must genuinely, in our respectful

5 submission, genuinely suspend judgement, and that reinforces the

6 proposition that Your Honour made.

7 JUDGE WALD: If I could ask one last question following that

8 group. Is it --

9 THE INTERPRETER: Microphone to Judge Wald, please.

10 JUDGE WALD: What is your position on Mr. Clegg's view that an

11 Appellant Chamber looking at a Trial Chamber who has in fact -- let's say

12 they applied the proper standard. Let's say the standard -- they applied

13 the objective standard down below and came to the conclusion that an

14 acquittal was necessary.

15 When the Appellant Chamber goes to look at what they did, is that

16 a question of law to which no deference should be given to the Trial

17 Chamber, or is it some kind of mixture and some kind of deference ought to

18 be given to the Trial Chamber? I know the situation in my own country:

19 It would be a question of law and sufficiency of the evidence, but I'm

20 interested in your answer.

21 MR. NICE: Your Honour, I'm quite satisfied in this Tribunal, as I

22 suspect in most if not all, it is a pure question of law and it is an

23 objective test.

24 There's something that I was going to add to that. Let me just

25 think if I can retrieve it. I know what I was going to add.

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1 It's pretty hard actually to see how the matter could ever truly

2 come to light save in these exceptional circumstances where the Trial

3 Chamber's gone wrong and accelerated its own decision, because putting on

4 one side the truly marginal cases which don't apply here, the sort of case

5 that perhaps Mr. Clegg pointed out, the completely destroyed witness, the

6 marginal identification case, put those on one side, any Chamber seeing

7 evidence of - forget genocide - robbery and evidence going to show that

8 the defendant was the robber, two composite elements required for the

9 crime, any Chamber would have to say, "Well, there's evidence that could

10 go forward." Any Appeals Chamber would have to say the same thing. And

11 for the Trial Chamber to have formed a capricious or even a genuine

12 provisional view on the validity of the identifying evidence would be

13 wrong. They have to bide their time. So it's always going to be

14 difficult to postulate examples where this would come to light.

15 JUDGE SHAHABUDDEEN: Thank you for your assistance, Mr. Nice. I

16 take it that there ends the hearing on this particular appeal by the

17 Prosecution. Tomorrow we will take Mr. Clegg's appeal at 9.30, following

18 the same sequence, I believe.

19 So now we will take the adjournment until that time.

20 --- Whereupon the hearing adjourned at 5.35 p.m.,

21 to be reconvened on Friday, the 23rd day

22 of February, 2001, at 9.30 a.m.




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13 and English transcripts.