1Tuesday, 19th October, 1999
2 [Open session]
3 --- Upon commencing at 2.46 p.m.
4 JUDGE JORDA: [Interpretation] Please be
5 seated. Mr. Registrar, would you call the case,
6 please, which should be included in the transcript.
7 THE REGISTRAR: Case number IT-95-10-T, the
8 Prosecutor versus Goran Jelisic.
9 JUDGE JORDA: [Interpretation] Thank you. I
10 also ask that the accused, Goran Jelisic, be brought
11 into the courtroom.
12 [The accused entered court]
13 JUDGE JORDA: [Interpretation] Yes, Mr. Nice.
14 The Trial Chamber is going to render its decision. Let
15 me remind you of that. The Trial Chamber is going to
16 render its division, then you will be given the floor.
17 First the Trial Chamber will render its decision, then
18 you will be given the floor. The Trial Chamber is
19 rendering its decision. You may be seated.
20 This Trial Chamber is going to render a
21 decision in the case the Prosecutor versus Jelisic.
22 Let me remind you that the Prosecution, with Mr. Nice
23 -- and I would like to say this, since you were
24 standing before: Could you please tell us, Mr. Nice,
25 who your colleagues are? And then I'll ask the same
1things of the Defence.
2 MR. NICE: Today I'm accompanied by
3 Mr. Tochilovsky, who has assisted me throughout the
4 trial; and also Mr. Bergsmo, who has been of assistance
5 in the recent applications that have been made to the
7 JUDGE JORDA: [Interpretation] Thank you,
8 Mr. Nice. Turning to the Defence, would you introduce
9 yourselves, please.
10 MR. LONDROVIC: Your Honours, the Defence is
11 represented by my learned colleague, Mr. Michael
12 Greaves, from London, and my name is Veselin
13 Londrovic. I'm an attorney from Bijeljina. Thank
15 JUDGE JORDA: [Interpretation] Very well.
16 Thank you.
17 The Trial Chamber here, under my presidency,
18 Claude Jorda, and working with Judge Fuad Riad and
19 Judge Almiro Rodrigues, is going to render its decision
20 in the case between Goran Jelisic and the Prosecutor,
21 who was indicted for genocide and for crime against
22 humanity and war crimes.
23 Let me suggest that we first summarise
24 briefly the case and then move to a presentation of the
25 elements and arguments presented by the Prosecution. I
1would then suggest that I refer to the most important
2 parts of the Judges' deliberations and, lastly, to read
3 out the Trial Chamber's decision.
4 A quick summary of the proceedings, and I
5 will try to read slowly, because I know that the
6 interpreters do not have the versions in all the
8 A brief background of the procedure. Can
9 everybody hear me? Does the interpreters hear me? Can
10 everybody hear me? Yes. Thank you.
11 Goran Jelisic was initially accused of
12 genocide, grave breaches of the Geneva Conventions,
13 violations of the laws and customs of war, and crimes
14 against humanity, in an indictment which was filed on
15 the 30th of June, 1995.
16 Goran Jelisic was arrested on the 22nd of
17 January, 1998, and transferred immediately to The
18 Hague. At his initial appearance on the 26th of
19 January, 1998, he pleaded not guilty.
20 The indictment was amended first time at the
21 request of the Prosecutor so that all the charges based
22 on Article 2 of the Statute for grave breaches of the
23 Geneva Conventions were to be withdrawn, and a first
24 amended indictment was filed on the 13th of May, 1998.
25 Further to discussions between the parties
1and the Status Conference organised under the authority
2 of the Trial Chamber by Judge Riad, an agreement on the
3 facts relating to the pleas of guilt envisaged by Goran
4 Jelisic was signed on 9th of the September, 1998 by the
5 accused and by the Prosecution counsel at that time,
6 Mr. Bowers and Mr. Tochilovsky, and Defence counsel,
7 Mr. Londrovic, and at that time Mr. Kostic. On the
8 basis of that agreement, a new indictment was prepared,
9 which was filed on the 20th of October, 1998.
10 On 29 October 1998, Goran Jelisic confirmed
11 that he was pleading not guilty to the count of
12 genocide. I repeat: Not guilty to the count of
13 genocide, but did plead guilty to war crimes and crimes
14 against humanity, as described in the agreement signed
15 on the 9th of September.
16 The parties agreed to consider that a trial
17 on the crime of genocide should take place and that the
18 hearing for the sentencing -- that is, for
19 everything -- that is, after the genocide trial but at
20 the time that the sentences for crimes against humanity
21 and war crimes should then be pleaded, and it was under
22 those conditions that the trial began.
23 Let me now present the evidence that the
24 Prosecutor put forth.
25 On the 30th of November, 1998, the Prosecutor
1made his opening statement. He asserted that Goran
2 Jelisic had been, and I quote, "Sent to Brcko to
3 contribute to the campaign of ethnic cleansing," and
4 that "For about two weeks he had acted as the principal
5 executioner at the Luka camp. He had power over life
6 and death" -- these are the Prosecutor's
7 words -- "He systematically and repeatedly would kill
8 Muslim detainees as well as certain Croats."
9 This comes from the provisional French
10 transcript of 30 November 1998, page 22.
11 The Prosecutor stated that the accused had
12 committed these murders, and again I quote, "With the
13 intention of destroying, in whole or in part, a racial,
14 ethnic, or religious group, and that the group targeted
15 by Goran Jelisic was important because it included all
16 the dignitaries of the Muslim community in Bosnia, in
17 that region, but also by its size."
18 "The accused" -- again, a quotation --
19 "demonstrated considerable authority and had received
20 the instructions to kill the largest number of Muslims
22 For the Prosecutor, the genocidal intention
23 could be demonstrated by the words of the accused
24 himself, as reported by the witness -- as would be
25 reported by the witness to the Judges, and it would
1appear again, quote, "That Goran Jelisic was an
2 effective, enthusiastic participant in the genocide
3 campaign. The Prosecutor concluded that for the Brcko
4 victims, the face of genocide was the face of Goran
6 The first Prosecution witness was heard on
7 the 30th of November, 1998. The trial then had to be
8 interrupted for several reasons and, in the end, was
9 only able to resume on the 30th of August, 1999. Let
10 me make clear that there were reasons that were outside
11 the powers of the Trial Chamber. In all, the
12 Prosecutor brought in 23 witnesses and presented 70
14 On the 22nd of September, 1999, the
15 Prosecutor announced to the Trial Chamber that subject
16 to a point that it wished to bring up with the Trial
17 Chamber, and now I quote the Prosecutor, "Yes," he
18 said, he had reached the end of the presentation of his
19 case, and that is the end of the quotation. Let me
20 remind you that the point in question only dealt with
21 the issue of knowing whether a Prosecution witness
22 could come to confirm the statements of another
23 Prosecution witness who had asserted that the accused
24 had played Russian roulette with him. Other than the
25 fact that the witness did not come forward, obviously
1this would not call into question the circumstance and
2 the fact that the Prosecutor had completed the
3 presentation of his case.
4 At the end of the Prosecutor's statement, the
5 Trial Chamber Judges then held a Status Conference in
6 order to organise the Trial Chamber's work. Among
7 other things, the Judges asked the Defence counsel
8 whether they were planning to file a motion for
9 rejection of the indictment. I'm saying this for the
10 public. This is part of our Rules of Procedure and
11 Evidence. At the end of the presentation of the
12 evidence, a request for withdrawal of the indictment
13 can be made. We also asked whether the accused would
14 appear in his own defence, which is a possibility as
15 well, a possibility which the Defence can use.
16 After discussions, the Judges, that is,
17 during the Status Conference, set the date of 8
18 November 1999 for the beginning of the presentation of
19 the Defence case.
20 The third part: Deliberations.
21 The Judges then reviewed all of the evidence
22 put forth by the Prosecution. From their
23 deliberations, they concluded that even without having
24 to hear the possible arguments put forth by the
25 Defence, the accused could not be recognised as guilty
1of the crime of genocide. Under those conditions, the
2 Trial Chamber asked the Registry to inform the parties
3 that this hearing would be held in accordance with
4 Rule 98 ter of the Rules of Procedure and Evidence in
5 order to inform the relevant individuals that it would
6 render its decision today in the Jelisic case.
7 Rule 98 ter refers to decisions which can
8 be -- judgements can be made on the basis of 98 bis,
9 which in our Rules of Procedure and Evidence is called
10 motion for a judgement of acquittal.
11 Under those conditions, the Prosecutor, on
12 the 15th of October, a few days ago, that is, filed a
13 motion requesting that the Trial Chamber postpone its
14 decision until the Prosecutor had had the possibility
15 to present her arguments, particularly the legal
16 arguments as to the status of the case. The Defence
17 responded to that motion of the Prosecutor's today, and
18 the Defence concluded that this motion should be
20 The Trial Chamber considers that there is a
21 connection, an indisociable [phoen] connection, between
22 that request and the decision on the substance which
23 the Trial Chamber said that it would announce its
24 decision about today. I said to one of the parties
25 already that the Trial Chamber had to render its
1decision. Therefore, there is a reason to join that
2 motion, and we'll call that decision on the motion, to
3 the decision on the merits.
4 For more clarity, however, it is at that
5 level the Trial Chamber will explain the reasons for
6 deciding that the Prosecutor's motion must be
8 In support of her motion, the Prosecutor put
9 forth a set of arguments, certain of which at least
10 partially overlap. The Prosecutor bases herself inter
11 alia in respect of the principle audi alterem partem;
12 that is, on the existence of a right to be heard, and
13 on the erroneous interpretation of Rules 86(A) and
14 98 bis of the Rules. That is, 86(A) deals with closing
15 arguments, and 98 bis is a request for a judgement of
16 acquittal. Both of these articles then it put forth
17 should be followed before the decision would be heard,
18 and the Trial Chamber considers that this motion is
19 inadmissible and therefore must be rejected.
20 In the first place, it should be remembered
21 what the letter and spirit of Rules 86 and 98 bis of
22 the Rules are.
23 Rule 86 provides that the Prosecutor can
24 present a closing argument, but this is a possibility,
25 as the text clearly states, and not an obligation. The
1proof for that is the circumstance that even if no
2 final arguments are presented, the Defence may still
3 present its argument. A Trial Chamber, therefore, is
4 not bound to allow the Prosecutor to present closing
5 arguments within the scope of the application of
6 Rule 98 bis of the Rules, that is, the procedure for
7 request for acquittal.
8 Furthermore, the principle of audi alterem
9 partem, according to which one must always hear the
10 other party, could not apply to a Trial Chamber which
11 proprio motu is acting within the framework of
12 Rule 98 bis of the Rules. That principle which is
13 raised by the Prosecutor does state that, save
14 exceptions as, for example, a possibility that one
15 party would ask to be heard ex parte; that save
16 exceptions, the opposing party can always present a
17 response to a motion. But in the case in point, the
18 decision does not originate from the Defence. It was
19 not the Defence that asked for acquittal, but it is the
20 Trial Chamber itself, with its powers that it gets from
21 the text; that if, after the presentation by the
22 Prosecution of its evidence, the Trial Chamber
23 concludes that the evidence presented is insufficient
24 to justify a conviction for one or several of the
25 crimes mentioned in the indictment, it will pronounce,
1at the request of the accused or proprio motu,
3 Especially, the Prosecutor is that much less
4 entitled to present a motion by the fact that it was
5 the Prosecutor, on the 22nd of September, stated that
6 it completed its evidence. This is page 1681 of the
7 French provisional transcript. In accordance with
8 Rule 85 of the Rules, it would be logical that the
9 moment had come for the Defence to present its own
11 The Judges weighed all of the evidence which
12 was presented by the Prosecutor, and since, at the end
13 of the deliberations, the Judges decided, and
14 sovereignly decided, that the evidence presented by the
15 Prosecution was insufficient to, and I quote, "to
16 justify a conviction," they must acquit.
17 The text of Rule 98 bis is perfectly clear.
18 It does not give the possibility to the Judges, under
19 such circumstances, to acquit an accused; it obliges
20 them to do so. The English text is just as clear, I
21 can say for my English-speaking friends. The English
22 text, as I said, is just as clear. "The Trial Chamber
23 shall order the entry of a judgement of acquittal." I
24 hope that I have not completely twisted the English
1This absolute character precludes all
2 possibilities of intervention on the part of the
3 accused party, except, of course, for the appeal, once
4 the Judges have come to the decision on the basis of
5 all of the evidence that that same party chose to
6 present. By definition, it excludes the fact that the
7 Prosecutor might present final arguments such as those
8 indicated under Rule 86 of the Rules.
9 Moreover, one must not confuse the notion of
10 acquittal with that of lack of evidence, that is, no
11 Prosecution case. This refers to a Prosecution
12 argument which comes from another case which this Trial
13 Chamber heard, that is, the Blaskic case.
14 In the second case it is sufficient for the
15 Trial Chamber to consider that the Prosecutor has
16 brought in enough proof for the Defence to be in -- to
17 have a need to answer; that is, there was a case to
18 answer. The Defence requested that some of the charges
19 in the Blaskic be withdrawn, so that things become set
20 once and for all when, even if the Defence did not
21 necessarily have the possibility of presenting even
22 partially its exculpatory proof, the Trial Chamber does
23 consider that there does at least exist a doubt which
24 must redound to the benefit of the accused.
25 In that last case, giving the Prosecutor the
1possibility of presenting additional evidence would be
2 tantamount in some way of giving -- I don't like this
3 term, but we don't have any others -- could have given
4 a chance, an additional chance -- it's difficult to
5 talk about chance and good luck in these dreadful
6 circumstances -- but that would destroy the balance
7 between the parties, or to allow her, whereas it is by
8 definition -- the Prosecutor, by definition,
9 constitutes the fact that the Chamber is going to
10 render a verdict of not guilty to appeal in -- before
11 whom? Before the same Trial Chamber -- that is,
12 ours -- which would, of course, would be illogical and
13 would not be consistent with the texts which have to
14 govern the conduct of the trials.
15 The Prosecutor cannot not also present, at
16 the proper time, all of the proof which in its opinion
17 would convince the Trial Chamber in order to wait for
18 the Defence to present its own evidence.
19 Lastly, the Prosecutor must, the Prosecutor
20 must also know the provisions of Rule 98 bis of the
21 Rules to prepare herself for all possible consequences,
22 by submitting, at the proper time, to the Trial
23 Chamber, the conclusions that -- especially the legal
24 conclusions which the Prosecutor would consider
25 necessary for the support of its thesis, and under
1these conditions Prosecutor's motion must be rejected.
2 What is the Trial Chamber's decision? Now, I
3 will go to that decision.
4 Since the Trial Chamber has not heard the
5 proof that the parties might have wanted to submit for
6 evaluation of the penalty, that is, the sentence, and
7 can only pronounce today a verdict of the guilt or
8 non-guilt, and today it cannot pronounce the sentence.
9 Moreover, the Trial Chamber has not physically had the
10 time to draft all of the reasons for its decision, and
11 I will explain why.
12 The Trial Chamber must ensure an expeditious
13 and fair trial and to permit proper administration of
14 justice. As we have just explained, the Judges, after
15 the deliberations as to the proof presented by the
16 Prosecution, unanimously reached the conclusion that
17 these elements -- I go back to 98 bis -- are
18 insufficient to sustain a conviction on the crime of
19 genocide. Therefore, as I said, as provided for under
20 Rule 98 bis of the Rules, they must inproprio motu
21 present an acquittal. But it was necessary to inform
22 the parties thereof rapidly, and specifically the
23 Defence, because the Defence was -- well, was to begin
24 to present the presentation of its case on the 8th of
25 November, and since we saw the Defence for the last
1time in September, this is the task the Defence was
2 supposed to work on while thinking whether it would
3 itself ask for an acquittal.
4 This is proper for the proper administration
5 of justice, to be sure that this much energy not be
6 used in vain and to -- as soon as the Judges had
7 finished deliberating, to be able to reach a decision.
8 But the decision today is a public one, and I will have
9 the occasion to go back to the right of appeal, which
10 is open, if necessary, to the Prosecutor. Therefore,
11 we must look through the guiding lines of what led us
12 to this decision, which means that -- say that why --
13 why should we acquit Goran Jelisic of genocide and
14 declare him, however, guilty of crimes -- of war crimes
15 and crimes against humanity?
16 Genocide. Reminder as regards genocide:
17 Goran Jelisic pleaded not guilty. In order to declare
18 an accused guilty of genocide, the Judges must not only
19 verify the reality of the facts on which the
20 Prosecution has based its case -- that is, in this
21 case, the murder of several dozens of people -- but
22 must also evaluate beyond the facts the reality of the
23 criminal mens rea of the alleged persecutor. I'm
24 asking the Prosecution to listen carefully here,
25 because this perhaps is the very point which we'll be
1determining for the subsequent conduct of this trial.
2 But they must also, beyond the evaluation of the facts,
3 they must look at the reality of the criminal mens rea
4 of the alleged perpetrator. One must be sure that the
5 accused had or did not have the intention to destroy,
6 in part or entirely, a national, ethnic, racial, or
7 religious group as such.
8 The discriminatory intention is not in and of
9 itself sufficient, and this which distinguishes
10 genocide from crimes of persecution, which is a crime
11 against humanity.
12 In order to convict an accused for genocide,
13 one must have the proof that he had the will to destroy
14 the discriminated group, at least in part, or at least
15 that he had the -- he was fully conscious of the fact
16 that he was participating, through his acts, in the
17 commission of a genocide; that is, the destruction, at
18 least partially, of a discriminated group. It is from
19 the reality of this will or from this consciousness
20 that the Judges must be convinced.
21 From that point of view, the Trial Chamber
22 considered it not necessary for the accused to have had
23 the intention to perpetrate crimes over a very broad
24 geographic area, or that he had the intention to
25 eliminate a very substantial -- of course, it must be
1substantial -- part of that population, but the crimes
2 perpetrated must show that they are perpetrators,
3 whether he is at a high level or is simply an executor;
4 had full conscience -- consciousness or the full desire
5 to seek, to destroy, at least partially, a specific
6 human group.
7 At this point, it would perhaps be proper to
8 go to Article 21 of the Statute, where every person is
9 considered to be innocent until he has been proved
10 guilty, realising that, as indicated in Rule 87 of the
11 Rules, the guilt of the accused must be proved beyond
12 any reasonable doubt.
13 In the case in point, the Judges consider
14 that the Prosecutor has not provided the sufficient
15 proof which would allow us to establish beyond all
16 reasonable doubt that Jelisic planned, incited,
17 ordered, committed, or in any other way participated,
18 in full consciousness, in the even partial destruction
19 of the Bosnian Muslim population, as a national,
20 ethnic, or religious group, and this doubt which must
21 redound to the benefit of the accused.
22 Therefore, Goran Jelisic cannot be declared guilty of
24 We will now look at the plea of guilty.
25 Goran Jelisic pleaded guilty to murders and physical
1abuse, which are characterised as crimes against
2 humanity, respectively murders and inhumane acts;
3 violations of the laws or customs of war, respectively
4 murders and cruel treatment; as well as for theft
5 qualified as war crimes, plunder.
6 Goran Jelisic recognised that he killed at
7 least 14 persons at the beginning of May 1992,
8 principally at the Luka camp, where many Muslim
9 Bosnians were detained, as well as Bosnian Croats. The
10 accused also admitted that during that period he had
11 committed serious physical attacks on at least four
12 people and that he stole money from several detainees.
13 But a plea of guilt in and of itself is
14 insufficient in order to form the basis for the
15 conviction of the accused. The Judges must be sure
16 that, pursuant to Rule 62 bis of the Rules of Procedure
17 and Evidence, that the guilty plea is made voluntarily,
18 that the guilty plea is informed, that the guilty plea
19 is not equivocal, and that there is sufficient factual
20 basis for the crimes and the accused's participation in
21 it, either on the basis of independent indicia or on a
22 lack of any material disagreement between the parties
23 about the facts of the case.
24 The Trial Chamber points out that it is not
25 important for the parties to be able to reach an
1agreement on the crime charged, although the Judges do
2 have to find it -- elements within the case file on
3 which to base their conviction, both in fact and in
4 law, which would -- in order to say that the accused
5 is, in fact, guilty of the crime.
6 Preliminarily, the Trial Chamber will first
7 recall that on the 11th of March, already the Trial
8 Chamber ordered that -- ordered that an evaluation be
9 carried out in order to be sure that, in light of the
10 perceptible elements of the accused's personality and
11 those that were provided in this respect to the
12 Defence, that Goran Jelisic was in a position to
13 understand the nature of the accusations against him
14 and to follow the trial, in full knowledge of what was
15 happening, and the experts stated that he was.
16 Moreover, the accused, Goran Jelisic, pleaded
17 guilty only after long discussions had taken place
18 between the parties; that is, his Defence counsel, in
19 the presence of the Judge; that is, the Pre-Trial
20 Judge, Judge Riad. There was a memorandum of agreement
21 which came as a result of that, along with its annexes,
22 shows particularly clear the result of the discussions
23 as to the nature and to the scope of the crimes
24 committed by the accused.
25 In addition, and this goes to
162 bis, testimony produced by the Prosecution during
2 the presentation of its case amply confirmed that there
3 was no possible doubt as to the effective commission of
4 the acts by Jelisic, that is, acts which he recognised
5 as being the perpetrator thereof. But Trial Chamber
6 must still be sure that the legal characterisation
7 given to the facts is legally founded.
8 As regards murders and physical violence, the
9 Trial Chamber is convinced that in this case they are
10 not only contrary to the rights -- to the law of war
11 and constitute violations of the laws and customs of
12 war, but they satisfy all the legal criteria which make
13 of them crime against humanity.
14 The Trial Chamber, lastly, considers that the
15 proof has been established beyond all reasonable doubt
16 that Jelisic must be found guilty of the crime of a war
17 of plunder for thefts that were committed against
18 detainees in the Luka camp.
19 Finally, the Trial Chamber -- I would like
20 Mr. Jelisic to rise at this moment.
21 Mr. Jelisic, would you please stand.
22 The Trial Chamber now renders its decision.
23 This is now the disposition of its decision, and let me
24 remind you that the motivations for the proper
25 intercession of justice will be given subsequently.
1The Trial Chamber acquits you of the count of
2 genocide -- that was Count 1 of the indictment --
3 declares that you are guilty of Counts 4 to 23, 30 to
4 33, 36 to 41, for crimes against humanity, murder, and
5 inhumane acts, and violations of the laws or customs of
6 war, murder, cruel treatment, and plunder; and guilty
7 of Count 44, plunder, a violation of the laws or
8 customs of war, states that the time period provided
9 for in Rule 108 of the Rules, in order to appeal this
10 decision, will start to run as of today, but that the
11 time period provided for under the relevant Articles of
12 the Rules in order to set up an appeals file case will
13 begin to run only starting from that point when the
14 Trial Chamber has rendered its reasons -- decision in
15 writing, and states that Goran Jelisic will remain in
16 detention at least until the Trial Chamber has rendered
17 its decision.
18 You may be seated. You may be seated now.
19 The Trial Chamber will now hold a Status
20 Conference after a brief suspension, in order to set up
21 a schedule for the possible presentation by the parties
22 of anything that they wish to put forth in respect of
23 the sentencing. The Court now stands adjourned.
24 --- Whereupon the hearing adjourned
25 at 3.20 p.m., to be reconvened on
1Tuesday, the 19th of October, 1999, at
2 3.45 p.m.