1 Monday, 11 June 2012
2 [Rule 98 bis Hearing]
3 [Open session]
4 [The accused entered court]
5 --- Upon commencing at 9.02 a.m.
6 JUDGE KWON: Good morning, everyone. We convene today to hear
7 the accused's Rule 98 bis submission. The Rule provides:
8 "At the close of the Prosecutor's case, the Trial Chamber shall,
9 by oral decision, and after hearing the oral submission of the parties,
10 enter a judgement of acquittal on any count if there's no evidence
11 capable of supporting a conviction."
12 The test to be applied is whether there's evidence upon which, if
13 accepted, a reasonable trier of fact could be satisfied beyond reasonable
14 doubt of the guilt of the accused. The test is not whether a
15 Trial Chamber would, in fact, convict beyond reasonable doubt, but rather
16 whether it could do so. Therefore, Mr. Karadzic, please bear in mind the
17 following two points.
18 First, as you may already know well, at this stage of the case
19 the Trial Chamber is not to evaluate the credibility of witnesses or the
20 strength and weaknesses of contradictory or different evidence.
21 Second, the rule falls to be applied to each of the 11 counts in
22 the indictment, not requiring the Chamber to be satisfied that there's
23 evidence supporting each of the individual charges making up the counts
24 of the indictment.
25 Having said that, Mr. Karadzic, I give you the floor for your
2 Yes, Mr. Robinson.
3 MR. ROBINSON: Yes, thank you, Mr. President. Mr. President,
4 this morning we're going to divide the work between myself and
5 Dr. Karadzic. There are two counts in which our arguments are
6 predominantly legal in nature and those are Counts 1 and 11. So I will
7 be making the submission on our team's behalf for Count 1 at the
8 beginning, and then at the end after Dr. Karadzic has addressed Counts 2
9 through 10 I will return and deal with Count 11. So at this time
10 Dr. Karadzic hereby moves for a judgement of acquittal pursuant to
11 Rule 98 bis of the Rules of Procedure and Evidence on each of the
12 11 counts in which he's charged.
13 Turning to Count 1, the guts of Count 1 can be found in
14 paragraph 38 of the indictment, and that charges that in some
15 municipalities - and there are seven listed in the bottom of that
16 paragraph - between 31 March and 31 December 1992 the campaign of
17 persecutions alleged in the indictment included or escalated to include
18 conduct that manifested an intent to destroy in part the national,
19 ethnical, and/or religious groups of Bosnian Muslims and/or
20 Bosnian Croats as such.
21 And this count is charged in violation of Article 4 of the ICTY
23 That Statute defines genocide as being any of the following acts
24 committed with the intent to destroy, in whole or in part, a national,
25 ethnical, racial, or religious group as such. And those acts include
1 killings causing serious bodily or mental harm and deliberately
2 inflicting conditions of life calculated to bring about the destruction
3 of the group.
4 It's been said that genocide is the crime of crimes. The intent
5 to destroy the group makes genocide an exceptionally grave crime and
6 distinguishes it from other serious crimes, such as persecution, where
7 the perpetrator selects his victims because of their membership in a
8 specific community but does not necessarily seek to destroy the community
9 as such. And so genocide is not simply the sum of killings on the one
10 hand, the actus reus, and expressions such as the Muslims should
11 disappear on the other hand, that being part of mens rea, but instead
12 genocide is a confluence of those acts and intent so that the killings
13 can be said to be committed not only because of hatred or revenge but
14 with the special intent to actually destroy the group or a significant
15 part thereof.
16 And our position as to Count 1 is simply that there was no
17 genocide in the municipalities in Bosnia in 1992, and therefore there is
18 no evidence upon which the Trial Chamber could conclude that Dr. Karadzic
19 is guilty of genocide as charged in Count 1. You don't have to take our
20 word for it. The International Court of Justice has held that there was
21 no genocide in the municipalities in Bosnia in 1992. Ruling in the
22 lawsuit by Bosnia against Serbia and Montenegro, the International Court
23 of Justice held that the court is not convinced that the massive killings
24 of members of the protected group were committed with the specific intent
25 on the part of the perpetrators to destroy, in whole or in part, the
1 group as such. This decision was made 15 years after these events, and
2 in the interim five years from 2007 until today, 2012, the Prosecutor has
3 presented no new evidence that would call into question this result. In
4 fact, the evidence in this case affirmatively indicates that there was no
5 genocide in the municipalities.
6 Exhibit D2250 is a chart that was produced by the Prosecution's
7 expert Ewa Tabeau, and it shows that in all of Bosnia 2.6 per cent of the
8 Muslims were killed. This includes soldiers who died in battle and
9 includes three and a half years of the war, not just 1992. It includes
10 the 1995 killings in Srebrenica, which are reflected in the total for
11 Bratunac municipality. So it's likely that the actual number of
12 civilians who were killed as a result of war crimes is well under
13 2 per cent of the population. That's no genocide. Almost 60 per cent of
14 the Jews in Europe were killed during the Holocaust and about 70 per cent
15 of the Tutsis were killed during the Rwandan genocide.
16 Now, the key to understanding the jurisprudence about the
17 genocide in municipalities is simply that displacement does not equal
18 destruction. And we can go back to the Genocide Convention itself.
19 There was an amendment offered ironically by Syria which would have made
20 displacement an act of genocide, and that amendment was voted down 29 to
21 5, ironically Yugoslavia voting in favour of the amendment. And so it
22 evidences a clear intention on behalf of the drafters of the
23 Genocide Convention that acts of displacement as opposed to destruction
24 do not constitute genocide.
25 In the Eichmann case in Israel in 1961, Eichmann was acquitted of
1 genocide for acts which took place before 1941 because the court found
2 that up until that time the Germans were intent on displacing and
3 expelling the Jews, but after the invasion -- the attack by the
4 Soviet Union in 1941 their programme changed and they became intent on
5 destruction and killing and not allowing displacement. And therefore,
6 Eichmann was convicted of genocide only for those acts which were
7 directed as destroying the group and not displacing it.
8 Let's look at the jurisprudence of genocide at the ICTY in the
10 The first case involved Goran Jelesic, a guard at the Luka camp
11 in Brcko municipality, a person who was said to have called himself the
12 Serb Adolf. The Trial Chamber in his case held that there was no
13 evidence of a plan to destroy the Muslims in Brcko or elsewhere, and that
14 Jelesic killed arbitrarily. The Appeals Chamber disagreed. They said
15 that the existence of a plan was not required, that displays of
16 randomness cited by the Trial Chamber did not negate genocidal intent,
17 but they declined to reverse the Trial Chamber, finding that it was not
18 in the interests of justice that Jelesic be tried for genocide and his
19 acquittal stood. And I mentioned that Brcko is not among the seven
20 municipalities in which genocide is charged in this case.
21 The next occasion in which this Tribunal has examined the issue
22 of genocide in the municipalities was the case of Dusko Sikirica, a case
23 of three guards at the Keraterm camp in the Prijedor area, and in that
24 case the judgement for -- motion for judgement of acquittal was granted
25 by the Trial Chamber, and those killings included the infamous room 3
1 massacre at Keraterm and they found that that was not with the intent to
2 destroy the group as such.
3 The Trial Chamber said in the Sikirica case that while the
4 Prosecution has adduced evidence which might suggest that the
5 Bosnian Serb authorities' general political doctrine gave rise to a
6 campaign of persecution against the non-Serb population in Prijedor,
7 there is no evidence that this doctrine sought to promote genocide.
8 The Sikirica case also dealt with two ways in which genocide
9 could be committed, targeting a substantial number of people or targeting
10 a selective number of individuals who comprised the leadership. And in
11 that case had indicated that the targeting of a selective number of
12 persons who by reasons of their special qualities of leadership within
13 the group as a whole are of such importance that their victimisation
14 would impact on the survival of the group as such, and they went on to
15 find that there was no targeting of the leadership in such a way at
16 Keraterm camp and that there was no evidence that the killing or
17 disappearance of the people in those camp was based upon the special
18 leadership or targeting of the special leadership, such as to destroy the
20 And the same is true here. If you look at some of the major
21 events in the Prosecution's case here, you can see why they were not
22 committed with the intent to destroy the group. If you look at the
23 Koricanske Stijene event, thousands of Muslims were transported towards
24 Muslim territory when near the place Koricanske Stijene the -- there was
25 a selection made of a few hundred of them or less than a few hundred of
1 them, and that selection was based upon criteria or whether they fit into
2 category 1, 2, or 3. Category 1 being combatants, people who had
3 participated in the war according to them, those persons were taken off
4 of the buses and killed. And the remaining thousands were taken to the
5 Muslim territory. If there was an intent to destroy, then of course the
6 object would have been to kill all of the Muslims or as many of them as
7 they could. And if there was an effort to target the leadership, then
8 the criteria for selection of those who were killed would have been based
9 on those who were leaders in the community rather than those who were
10 combatants and who could come back to fight again against the
11 Bosnian Serbs.
12 If you look at the system of prisoner exchanges, it flies in the
13 face of genocide. Thousands of Bosnian Muslims were exchanged, were
14 released during the course of 1992. Do you know how many Tutsis were
15 exchanged for Hutus in Rwanda? Zero. Again, showing that there was no
16 genocide in the municipalities in 1992.
17 The next case in which the Tribunal dealt with the genocide in
18 the municipalities was that of Milomir Stakic, the president of the
19 Crisis Staff in Prijedor municipality. He was acquitted of genocide.
20 The Trial Chamber said the Serbs had the means to commit genocide if they
21 so intended. Had the aim been to kill all Muslims, the structures were
22 in place for this to be accomplished. The Trial Chamber notes that while
23 approximately 23.000 people were registered as having passed through
24 Trnopolje camp, the total number of killings in Prijedor municipality
25 probably did not exceed 3.000. The Trial Chamber in Stakic was not
1 satisfied that anyone had the special intent to destroy the Muslims or
2 Croats as a group and they specifically discussed the strategic goals,
3 which is Exhibit P781 in this case and found that they called for
4 separation and not destruction.
5 The Court concluded that there was insufficient evidence in this
6 case to prove that a genocidal campaign was being planned at a higher
7 level. Now, here's what the International Court of Justice said about
8 the strategic goals. The applicant's argument does not come to terms
9 with the fact that an essential motive of much of the Bosnian Serb
10 leadership to create a larger Serb state by war or conquest if necessary
11 did not necessarily require the destruction of the Bosnian Muslims and
12 other communities, but their expulsion. The 1992 objectives,
13 particularly the first one, were capable of being achieved by the
14 displacement of the population and by territory being acquired.
15 The Appeals Chamber in Stakic affirmed the acquittal for genocide
16 and rejected the Prosecution's appeal. It found that the evidence could
17 reasonably be seen as consistent with the conclusion that the
18 Trial Chamber drew that the appellant merely intended to displace but not
19 destroy the Muslim group. And it pointed to some evidence to the
20 contrary, such as Stakic's statement that Bosnian Muslims who did not
21 take part in hostilities would be permitted to return to Prijedor after
22 the war.
23 And we have similar evidence in this case, including
24 Dr. Karadzic's order of the 13th of June, 1992, Exhibit D101, in which he
25 annulled any documents that had been signed by Muslims or Croats
1 relinquishing their property before leaving municipality.
2 Now, the next case in which the Tribunal dealt with genocide in
3 the municipalities was the Milosevic case, and in the Rule 98 bis motion
4 for judgement of acquittal, the Trial Chamber found that there was
5 evidence from which genocide in the municipalities could be inferred. As
6 we know, that case never proceeded to a final judgement because of the
7 death of President Milosevic. The decision took place in June of 2004
8 preceding the Appeals Chamber's decision in Stakic and also the
9 International Court of Justice judgement in 2007. Even in Stakic and
10 Brdjanin and Krajisnik, which I'm about to discuss, the Rule 98 bis
11 motions were denied only to find an acquittal at the end of the case.
12 All of those rulings took place before the decisions of the
13 International Court of Justice, which firmly established that no genocide
14 took place in the municipalities and did so on a lower burden of proof of
15 the preponderance of the evidence rather than whether there is evidence
16 capable of proof beyond a reasonable doubt.
17 And so you may be asking yourself why you should grant a motion
18 for acquittal at this stage on Count 1 rather than waiting until the end
19 of the case and deciding on the final judgement. And the answer is that,
20 first of all, you have the decision now of the
21 International Court of Justice, but most importantly part of the right to
22 a fair trial that Rule 98 bis is designed to guarantee to the accused is
23 the protection from having to defend himself from overcharging or charges
24 which are not warranted in light of the evidence and the jurisprudence;
25 and to allow an accused to focus the resources, scarce as they are, to
1 him and compared to the Prosecution on crimes for which there is actually
2 evidence which could sustain a conviction.
3 You know, I am paid 75 euros an hour for my work here. If I
4 spend one hour on genocide in the Defence case, just one hour, that --
5 those resources can be used to feed two children in Africa for a month.
6 And so it's incumbent upon the Trial Chamber, in our submission, to
7 address the issue at this stage and to determine really whether in light
8 of all this jurisprudence and the evidence that you've heard the case for
9 genocide in the municipalities should go forward.
10 I turn now to the decision in the Brdjanin case. As you know
11 Radoslav Brdjanin was the president of the Autonomous Region of Krajina,
12 the highest regional figure within Bosnia, and in his case the
13 Trial Chamber also acquitted him of genocide in the municipalities. It
14 found that there was -- from the summer of 1992, the Bosnian Serb forces
15 controlled the territory of the ARK, as shown by the fact they were
16 capable of mustering the logistical resources to forcibly displace tens
17 of thousands of Bosnian Muslims and Bosnian Croats, resources which, had
18 such been the intent, could have been employed in the destructions of all
19 the Bosnian Muslims and Bosnian Croats of the ARK.
20 The Trial Chamber in the Brdjanin case examined much of the same
21 evidence that you've heard in this case, the killings at
22 Koricanske Stijene, killings and treatment of prisoners at Omarska,
23 Keraterm, Trnopolje, and acts in the municipalities of Prijedor,
24 Sanski Most, and Kljuc, which are charged as some of the seven
25 municipalities in which genocide is alleged to have occurred. And in the
1 Brdjanin case the Trial Chamber heard many of the same utterances that
2 you've heard, intercepts, public speeches, and they noted that some of
3 the accused's utterances are openly nasty, hateful, intolerable,
4 repulsive, and disgraceful, but whilst these utterances strongly suggest
5 the accused's discriminatory intent; however, they do not allow for the
6 conclusion that the accused harboured the intent to destroy the
7 Bosnian Muslims and Bosnian Croats of the ARK.
8 In the Brdjanin case they also talked about the notion of
9 escalation to genocide, which is also charged in our indictment. And
10 they found no evidence of escalation to genocide in the ARK, and that's
11 at paragraph 982, and there was also no evidence of escalation to
12 genocide in this case.
13 The last case in which genocide was dealt with in the
14 municipalities at this Tribunal involves the prosecution of
15 Momcilo Krajisnik, who was the president of the Assembly and a closest
16 associate of Dr. Karadzic. And he was charged with genocide on a
17 national level. The Trial Chamber found no intention to destroy the
18 group. They said: The Chamber does not find that any of these acts were
19 committed with the intent to destroy the Bosnian Muslim or Bosnian Croat
20 ethnic group as such. And those acts include virtually all of the acts
21 that are charged in this case, including the killings at Karakaj
22 technical school in Zvornik and the Susica camp in Vlasenica. They
23 contain the same utterances and documents Variant A and B, the six
24 strategic goals, Dr. Karadzic's October 1991 speech before the Assembly,
25 and the same intercepted conversations.
1 So all of this jurisprudence leads inescapably to the conclusion
2 that no genocide in the municipalities in Bosnia took place in 1992.
3 And I would point out that genocide, as charged in this
4 indictment, is not an inchoate crime. He is not charged with incitement
5 to genocide or conspiracy to commit genocide. So it has to be
6 established that a genocide actually took place in order for there to be
7 evidence upon which you could convict Dr. Karadzic of Count 1. And I
8 point out that the genocide in Count 1 does not include the killings in
9 Srebrenica, which are the subject of Count 2. The Prosecution has not
10 brought anything new in this trial that would cause you to question
11 whether you ought to depart from this overwhelming weight of the
12 jurisprudence. Despite having millions of documents in its possession,
13 entire collections of Bosnian Serb military and political entities,
14 intercepted conversations, minutes of secret meetings, there is simply no
15 evidence that genocide was committed in the municipalities in Bosnia in
17 Now, last week at the United Nations Security Council,
18 Prosecutor Brammertz criticised the president of Serbia for denying the
19 genocide in Srebrenica. He said that recent comments made by the newly
20 elected president of Serbia who denied that genocide occurred in
21 Srebrenica in July 1995 are not acceptable and contravene the legal and
22 factual findings of the ICTY and the International Court of Justice. And
23 likewise, the Prosecution's continuing efforts to claim that genocide
24 occurred in the municipalities in Bosnia in 1992 contravenes the legal
25 and factual findings of the ICTY and the International Court of Justice.
1 The Prosecutor went on to say that such rhetoric is a backwards step,
2 aggravates the victims' suffering and jeopardises the fragile process of
3 reconciliation in the former Yugoslavia. And likewise, the Prosecution's
4 claims that genocide occurred in the municipalities in Bosnia in 1992, in
5 light of all the jurisprudence, does no service to this Court or to the
6 people of the former Yugoslavia.
7 There's no doubt that the suffering during the war in Bosnia was
8 immense and that many crimes were committed. But there's no evidence
9 upon which the Trial Chamber could conclude that there was an intention
10 to destroy the Bosnian Muslims or Bosnian Croats in the municipalities in
11 1992, and therefore Dr. Karadzic is entitled to a judgement of acquittal
12 on Count 1 of the indictment. I will now turn the proceedings over to
13 Dr. Karadzic for a discussion of the remaining Counts 2 through 10.
14 Thank you.
15 JUDGE KWON: Thank you, Mr. Robinson.
16 Yes, Mr. Karadzic.
17 THE ACCUSED: [Interpretation] Thank you --
18 JUDGE KWON: Just a second.
19 Yes, the French translation has been just concluded.
20 Yes, Mr. Karadzic.
21 THE ACCUSED: [Interpretation] Thank you. Good morning,
22 Your Excellencies. Good morning to all.
23 I would like to touch upon each and every count, but within the
24 framework of Rule 98 bis. First of all, I would like to pay tribute to
25 our learned colleagues from the Prosecution because they made a huge
1 effort to make some kind of an indictment out of nothing. What I'm going
2 to say does not have to do with their incapability or their negligence,
3 but simply the fact that there wasn't material to make this indictment
4 look better. The entire indictment is based upon a few things that were
5 stated but not proven. That is why I'm going to deal with them first
6 because they are the basis of the entire indictment, practically all the
8 So the entire indictment against me is founded on my alleged
9 intent or that we Serbs intended to get rid of Bosnian Muslims and Croats
10 from the territories that they -- where they had a right to live. The
11 Prosecution did not prove the basic part of this allegation; namely, that
12 we lastingly wanted to remove Bosnian Muslims and Croats from these
13 territories because the Prosecution was also aware of the fact that
14 temporary removal - or whatever word we use in this context - of
15 jeopardised civilians in this area is something that is both desirable
16 and indispensable on the basis of our law of self-defence and self
17 protection. So these civilians had to be removed from combat areas.
18 We expected Count 1 to go on for longer so we did not complete
19 our technical preparations, but anyway we saw this law here and we saw
20 that this linguistic confusion that is due to imprecise translations in
21 terms of what expert moves, shift, move, et cetera. All of that
22 contributed to a misunderstanding of what had been done by certain
23 commands or certain civilian leadership in certain municipalities.
24 JUDGE KWON: Mr. Karadzic, if you need a short break, the Chamber
25 is minded to take a five-minute break for your preparation if necessary.
1 THE ACCUSED: [Interpretation] Thank you. That would be good.
2 Thank you.
3 JUDGE KWON: The Chamber will rise for five minutes.
4 --- Break taken at 9.36 a.m.
5 --- On resuming at 9.46 a.m.
6 JUDGE KWON: Yes, please continue. I note that your presentation
7 material can be viewed through e-court.
8 THE ACCUSED: [Interpretation] Thank you. I'm not sure that it's
9 going to be brilliant, but we'll try to make do as my explanations go
11 In some stage we should have reached agreement on what was
12 envisaged by our legislation. Our Law on All People's Defence prescribes
13 the following. Like in other countries, if there is a natural disaster,
14 if there is a hurricane on the US coast, there has to be evacuation. And
15 the same goes for the Law on National Defence in our country. No one
16 says there that they are not going to go back. That goes without saying.
17 Also, no document issued by the state authorities or the political
18 authorities of Republika Srpska did not deny the right of persons who
19 fled from combat areas to return. On the contrary, from the 11th of
20 April, 1992, until the end of September 1992, we signed five or six
21 agreements that define how the population would be evacuated, removed,
22 how this would be done in a lawful, regulated manner, accompanied by the
23 police, and of course the right to return was included. The birthday of
24 this alleged intention to remove permanently - I repeat this word,
25 permanently - was never proven, no proper attempt was even made to do
1 that, and the Prosecution claims that this happened in October 1991. We
2 saw here that all of 1991 was beset by political struggles in which the
3 Serb side in Bosnia-Herzegovina had a rather conservative position as
4 they tried to preserve Yugoslavia as a whole and Bosnia and Herzegovina
5 as a whole within Yugoslavia. It's not the Serbs that are the first to
6 mention separation and division; it was Mr. Izetbegovic. Then in 1991 we
7 accepted two of the main proposals of the largest Muslim parties:
8 Izetbegovic's for an independent Bosnia transformed into three republics;
9 and Zulfikarpasic's, that we give up on regionalisation and three
10 republics but that we stay in Yugoslavia.
11 So even the interpretation of my sentences that were mutilated
12 could not prove this, that we wanted to remove them and that we wanted to
13 remove them permanently. What was particularly not proven was that we
14 denied their right to return. There's another thing that the Prosecution
15 believed that went without saying but they did not prove it. The
16 Prosecution views the following as a fundamental precondition for
17 implementing Serb strategic objectives, that is, war and violence.
18 However, that is not correct and that was not proven. On the contrary,
19 what was proven was that Serb objectives were recognised by the
20 international community, Serb fears were taken into account, Serb fears
21 of a unitary Bosnia-Herzegovina, and that considerably before the war
22 there were bilateral, trilateral political talks in which the
23 European Community took part as well, and they proposed a concept of
24 Bosnia that would resemble a Balkan Switzerland; that is to say,
25 consisting of several entities. This Serb objective was recognised
1 before the war and throughout 1992 until the beginning of 1993. There
2 were discussions and agreements and the Serb side acted bona fide in all
3 of this. It was obvious that these objectives could be attained without
4 going to war.
5 We have admitted into evidence documents from February and March
6 from the Assembly of the Serb People in Bosnia-Herzegovina. It is shown
7 unequivocally there that Bosnia-Herzegovina would be multiethnic.
8 Unequivocally we see that Bosniaks and Croats would take part in
9 political life proportionately, as would be the case with the Serbs in
10 the Muslim and Croat units. So our aspirations and our objectives were
11 recognised in all the plans before the war, during the war, and after the
12 war, all the way up to Dayton; that is to say, this was not proven, that
13 we thought that a precondition for this was going to war.
14 Also, it is not logical because the Serb community in
15 Bosnia-Herzegovina is the largest. It had not prepared for war at all.
16 It relied on the protection of the Yugoslav state and the
17 Yugoslav People's Army. And, finally, witnesses here, primarily
18 Robert Donia, said that they knew that I was against war. Also, we saw
19 that on the 8th of March, 1992, Mr. Vance informed Mr. Genscher - and
20 that is not under seal, that is a public document - this sentence,
21 Dr. Karadzic wishes to avoid war at all costs.
22 The Prosecution did not prove that crimes to otherwise happen in
23 all civil wars happened in our civil war because there was a joint
24 criminal enterprise. The Prosecution failed to prove that this was an
25 overarching joint criminal enterprise, by virtue of the fact that they
1 can indicate some things that happened only in a few out of over 60
2 municipalities in Republika Srpska. Dr. Mujadzic, a Prosecution witness,
3 confirmed here that in places where Muslims had less than 50 per cent,
4 20 or 30 per cent, they did not have any problems. And the page
5 reference is from 20.000 and further on, 20.500, 600, 700, 650 to 720,
6 Dr. Mujadzic confirmed that I was against war, that I wanted to avoid
7 war, that he wanted to avoid war, and that that would have been a good
8 thing. And he confirmed that terrible things happened in the valley of
9 the Sana River that was strategically important both for the
10 Yugoslav People's Army, later on the Army of Republika Srpska, and for
11 the Muslim army, clearly showing that their strategic objective was to
12 take at least the left bank of the Sana River and annex all of that to
13 the Cazin Krajina.
14 So these are things that were clearly proven here, and on the
15 other hand there is no evidence to the contrary that would confirm that
16 this joint criminal enterprise was set up, that I took part in its
17 establishment. On the contrary, up until the very last day, until the
18 1st of April, the entire Serb community in Bosnia-Herzegovina, its entire
19 political being was involved in establishing organs of authority in the
20 new organisation of Bosnia-Herzegovina. The Prosecution states that
21 these organs were established with a view to attaining these objectives;
22 however, these organs were envisaged by the Lisbon Agreement as well and
23 any other agreement. And their accelerated establishment was aimed at
24 preventing chaos, not creating chaos.
25 The Prosecution did not even take into account an adjudicated
1 fact from another trial in this Tribunal, and that Trial Chamber came to
2 the conclusion that until 1992 I took into account the interests of the
3 Croats and Muslims until the 14th of February, 1992, that is. In
4 paragraph 907 there is a reference to my speech. I am going to read
5 that. Paragraph 907 of the trial judgement in the Krajisnik case, that's
6 the reference, actually. It says:
7 [In English] "It is up to each individual to do his part of the
8 job. We shall also talk about that today, but I have to say that we must
9 be wise, unified, dedicated in order to take the last drop of power in
10 our hands, in a humane way of course, carry it out in a humane way, a
11 just way towards both Muslims and Croats who live there, that is
12 particularly important, that there would be no fleeing from our areas."
13 [Interpretation] And in paragraph 908, it states:
14 [In English] "At each stage in early 1992, respect for the
15 interests of other peoples was still being expressed by Karadzic, as
16 separation and homogenization were not yet the declared aim of the
17 nascent leadership."
18 [Interpretation] If that is so, then it was the duty of the
19 Prosecution to set a new date when this alleged intent came into the
20 forefront that I am being charged with.
21 One would see that on the 11th of April I signed an agreement
22 with the UNHCR. On the 22nd of April I issued a platform suggesting that
23 territories taken by force be not recognised and that peace be secured as
24 soon as possible, as well as the return of all.
25 On the 3rd of May we have seen here and we have the source from
1 the newspaper, my press conference where in response to a question of
2 whether there will be displacement, I said that we do not foresee or
3 recommend displacement of the population but reciprocal protection of
4 minority rights. And this applied throughout 1992 when I fought that all
5 the Muslim and Croats be protected, that they have their representatives.
6 And when I was elected I sought the Assembly to elect the prosecutors.
7 So there will not be a new birthday for this alleged intent on my part,
8 because that alleged intent did not actually exist on my part or on my
10 Now I would like to deal with the Count 2, which is genocide as
11 it relates to Srebrenica.
12 Already in paragraph 1 of the indictment the Prosecution states
13 something that they have not proved because they did not present any
14 evidence that I, together with others, planned, instigated, ordered,
15 and/or aided and abetted genocide in Srebrenica. Quite the contrary.
16 There is evidence in case that there was no intent for the
17 Army of Republika Srpska to enter Srebrenica, but they actually did that
18 after the town was abandoned by the 28th Division and by the population.
19 We can even see here statements by insiders and others who were familiar
20 with these events and we even have statements by the perpetrators, those
21 who killed prisoners of war, that they did not know anyone who had the
22 intent of destroying the Muslims in Srebrenica and neither did they have
23 that intent.
24 Now, the Prosecution remains by its assertion, unsubstantiated by
25 anything, that I either planned or intended to, and even if I did not
1 perhaps intend to, perhaps alternatively I could have and should have
2 foreseen that some of the members of the joint criminal intent could have
3 committed genocide if our particular conduct or fighting did continue.
4 The question of military action around Srebrenica was a military matter
5 and it was very justified because it was insupportable to tolerate
6 continuous attacks from Srebrenica. The question of entering Srebrenica
7 became relevant on the night between the 9th and the 10th of July. We
8 saw here that I was informed that they can enter and that I did agree to
9 that and did order for them to act in the most humane way possible.
10 Thus, there was no intent even to enter Srebrenica and never mind plans,
11 according to the Prosecution, that these plans were created during the
12 days of the attack. So there is awareness that there were no plans
13 before the attack, but allegedly during the attack this decision appeared
14 to be made. They did not present any evidence as to who made the
15 decision on the genocide and the killing in general. When? At which
16 point in time?
17 On the -- well, we will come back to the question of killing, but
18 on the matter of the alleged forcible displacement or deportation of the
19 population from Srebrenica, it has been proved beyond any doubt here that
20 the Serbian army did not have any combat contacts in Srebrenica and its
21 vicinity and it did not have any combat contact with the 28th Division
22 and did not have any contact with the population before this contact
23 occurred in Potocari where the population, at the instigation of their
24 own authorities, went to seek shelter.
25 The Prosecution during the presentation of their case put in a
1 lot of effort, fighting for every hour and every minute, in order to
2 prove that Mladic or the Serbian side planned or were prepared to
3 evacuate the civilian population before that population actually
4 expressed its own will about that. It is more than obvious that no
5 deportation was planned. It was shown that the evacuation of the
6 population was something that was favoured by the local authorities in
7 Srebrenica and the central authorities this Sarajevo, and that the
8 central authorities in Sarajevo sought intervention via the
9 United Nations for the Serbian side to permit the evacuation.
10 The United Nations conveyed that request through General Nicolai
11 and Colonel Karremans to Mladic, but Mladic did not grant this even then
12 until representatives of the Muslim population themselves came and stated
13 exactly what it is that they wished. Thus, the Prosecution did invest a
14 lot of effort in this and I think that they should be recognised for
15 these efforts to prove that there was some actions around the evacuation
16 that were done some 10 or more hours before the 10th of July. But
17 already in the evening of the 11th of July, it was clear what the Muslim
18 side wanted. On July 12th no preparatory actions were carried out other
19 than just information as to where vehicles could be obtained from.
20 After that we can also see that the evacuation of the population
21 was underway in the direction in which they wished to go and it is not
22 said anywhere or there is no action indicating that they would not return
23 and that they would not come back to their town again. It is very clear
24 from a document of mine of the 11th of July, where I appoint the civilian
25 representatives and ordered the formation of the organs of authority,
1 that this refers only to the Serbian municipality of Srebrenica. And we
2 can all remember that the forming of ethnically defined municipalities
3 was one of the topics before the war broke out and after the war broke
4 out, so that each community could feel safe. They were able to form
5 their own authorities, have their own positions and manage the affairs of
6 their own community completely independent from other ethnic communities
7 and pursuant to their common laws. No one knew nor could anyone have
8 foreseen, since as there is no evidence that I have done something
9 actively, I am being charged with not foreseeing what would happen. Who
10 could have foreseen that the 28th Division was going to leave the enclave
11 much earlier than they needed to because they had more manpower than the
12 Serbian army did? Who could have foreseen that the entire population
13 would leave their homes? No one could have foreseen that. And it was
14 not possible to plan, it was not possible to foresee the conduct of the
15 commander, such as Oric and others who had their own concept and ideas
16 about how to involve the Serbs in Srebrenica, get them to come in.
17 Now, let us look at how witnesses described these matters
18 relating to the evacuation. Let us look at Witness Kingori's testimony
19 that he told General Mladic that he would obtain vehicles for the
20 evacuation. We can see here the testimony of Nikolic about how they
21 arrived, soldiers of the United Nations arrived, asking that the
22 evacuation be speeded up. This is from the testimony of Witness Rutten
23 before the Dutch parliamentary inquiry. We also saw evidence that the
24 Dutch defence ministry was also in favour of the evacuation being carried
25 out. None of the Serbs or the foreigners considered this to be a
1 permanent thing and there was no indication that this would be a
2 permanent thing.
3 This is KDZ084. We will recall that he testified that on the
4 13th up until the early evening everything seemed quiet and it was
5 assumed that there would be an exchange of prisoners and that nothing
6 happened until the incident in Kravica. The Prosecution invested
7 considerable efforts to prove that the killing in the Cerska Valley
8 happened before the Kravica incident. However, this did not succeed
9 because Prosecution witnesses confirmed here that the incidents in Cerska
10 did not occur on the 13th but on the 17th or later because the people who
11 were exhumed there were seen alive on the 17th.
12 Prosecution Witness prominent investigator confirmed that in
13 places where there was a greater military or police presence, such as in
14 Potocari, there was no killing, while in the town where old people and
15 reserves were maintaining law and order, there were killings, personal
16 vendettas, calling people out from specific villages. Thus, wherever
17 state authorities were present, there were no crimes.
18 In the same way, the organs that we were speedily forming
19 throughout 1992, for which the Prosecution claims were formed in order
20 for us to achieve our criminal objectives actually clearly indicates that
21 the greater the organised degree of the authorities, the smaller
22 percentage of crimes and insecurity was recorded. And it's the other way
23 around, where the present -- the presence of the state was possible in
24 such an awful situation. Things could have been much worse.
25 I'm afraid, Your Excellencies, that the Muslim propaganda about
1 the events, the causes, the consequences, the corps, the number of
2 victims was something that influenced the Prosecution. They completely
3 took in the propaganda of Muslim extremists who were distorting things,
4 not only as to the causes and the consequences but also in regard to
5 precise data about the number of victims.
6 Regardless of that, even if deportations did occur, the
7 Prosecution did not present any proof about my knowledge, never mind
8 about my possible participation or contribution. The Defence holds that
9 the Prosecution, in the presentation of their case, presented evidence
10 that there was no prior plan but that it was a matter of fulfilling the
11 wishes of the Muslim population, the Muslim government, and the
12 international bodies, including the Dutch government to a certain extent.
13 But there was no evidence about my knowledge and even less about my
14 active participation in any of the acts that I'm being charged with in
15 relation to the evacuation, or rather - as it is said in the
16 indictment - forcible displacement.
17 Looking at it more broadly, the Prosecution ascribes to me the
18 responsibility of having, in March 1992, formed the intent to capture
19 Srebrenica and to commit crimes there; again, within the framework of a
20 comprehensive joint criminal enterprise with a purpose of permanent
21 removal, et cetera, et cetera. The Prosecution is probably relying on
22 directive number 7. Without going into who and how created directive
23 number 7 at the moment, without even going into the fact that directive
24 number 7 is not an executive document and that it was followed by
25 directive number 7.1, which does not contain any elements that would be
1 indicative of a criminal act, we have succeeded during the Prosecution
2 case to prove that directive number 7 resulted in none of the
3 consequences that are ascribed to it. The humanitarian aid did not cease
4 and the Prosecution witness testified here that she uses children as a
5 criterion of the situation in an area and she saw a lot of children in
6 the streets of Srebrenica, which meant there was no shelling, that the
7 children were well nourished and healthy, which meant to her that there
8 was sufficient medicine and food.
9 And we have seen that convoys ceaselessly travelled and convoys
10 were even approved for the 11th of July, arriving on the 13th. On that
11 point, we have the testimony of General Obradovic who says that was
12 intended for the civilian population and it did not matter how the
13 fighting would end, in whose favour. However, the Prosecution probably
14 neglected the fact that in 1993 I stopped our army at the boundaries of
15 the enclave and forbade investigations. General Milovanovic spoke about
16 that. I forbade investigations, lest personal elements interfere with
17 this because people had been killing each other for centuries before that
18 and the Serbs were the main victims until April 1993. So in April 1993 I
19 forbade Serbs from entering Srebrenica and I forbade any investigations
20 that might lead to incidents.
21 As regards killings, first of all, the Prosecution has failed to
22 show a single document that would indicate anybody's intention to carry
23 out unlawful murders, anyone's intention to kill prisoners of war. In no
24 aspect did the Prosecution show that there had been killings of civilians
25 or that there had been intent to kill civilians. However, as regards the
1 killing of prisoners of war, the Prosecution has not proven that anything
2 happened before the Kravica incident. Concerning the Kravica incident we
3 have seen that it occurred because one of the prisoners in a relaxed
4 atmosphere, which the guards supported, snatched a weapon on board a bus,
5 started shooting, and created chaos. We have also seen and heard that a
6 certain number of Muslim soldiers falsely surrendered and then activated
7 a bomb making a suicide bombing. That also contributed to the chaotic
8 course of events.
9 The repenting perpetrators who admitted to the killings of
10 prisoners of war confirmed that the thought never crossed their minds of
11 exterminating Muslims as a group. They confirmed that an unidentified
12 lieutenant-colonel complained that they were dangerous, unpredictable,
13 and impossible to control, and Erdemovic testified here that he had not
14 discuss it with anyone except after crossing into Serbia where he
15 discussed it with the former deputy commander, Kremenovic and he was
16 unable to discuss it with anyone who could have told it to his superior
17 commander. And that phenomenon, the next level, the immediate superior
18 was not able to know many of these things. We will see that Pelemis
19 himself did not know because Erdemovic did not dare to speak to anyone
20 who was able to inform the commanders. We have equally seen and heard
21 that silence reigned everywhere. Everyone kept their mouths shut about
22 the events that happened on the 14th and later, and the question arises:
23 How could the president of the republic who had his hands full all day,
24 every day, possibly know something that was not known even to the people
25 in the chain of command, in the very area where the events occurred?
1 Your Excellencies, is this a good time for a break?
2 JUDGE KWON: Yes.
3 [Trial Chamber confers]
4 JUDGE MORRISON: Dr. Karadzic, we'll take a break now but I'm
5 asked to remind you of two things.
6 First of all, to stick very closely to the requirements of the
7 actual purpose of these proceedings. It's not a final submission. You
8 should be submitting and not commenting about the matters which are
9 capable of mounting to proof, and not whether or not they in fact amount
10 to proof. That's a distinction which is very important at this stage of
11 the proceedings.
12 You must be careful also to distinguish between comment, which
13 you have been doing on a widespread basis, although we have let you
14 continue, and a submission. You will have seen the difference between
15 comment and submission when you observed the way that Mr. Robinson
16 addressed the Court in respect of the matters that he dealt with. He
17 didn't make a single comment; he made submissions. And it would be very
18 useful for us, and indeed for yourself, if you could follow his
19 professional example.
20 JUDGE KWON: We'll take a break for half an hour and resume at
22 --- Recess taken at 10.29 a.m.
23 --- On resuming at 11.02 a.m.
24 JUDGE KWON: Yes, please continue, Mr. Karadzic.
25 THE ACCUSED: [Interpretation] The issue of the events in
1 Srebrenica which is dealt with in Count 2, genocide, as well as in counts
2 that deal with municipality by municipality, I should like to remind you,
3 since it has not been proven that there had been plans or intent and
4 especially that there had been any knowledge on my part, let us look at
5 all the things the witnesses have said about it. We have all the
6 intercepts, all the documents, the testimony of people who spent the
7 critical days with me, the days when the events in Srebrenica happened,
8 and there is not a shred of evidence that I was even informed, let alone
9 aware of the killings or deportations. But since we are dealing with
10 Count 2 now, there were no plans, no knowledge, no reports about that,
11 nor was the Prosecution able to present a single piece of evidence. On
12 the contrary, we see that even international witnesses have shown that it
13 was not proven. In fact, they have shown exactly the opposite. It has
14 also been proven that there had been opportunistic killings driven by
15 personal motivations such as revenge, and the indictment also features
16 military targets and other operations as parts of the joint criminal
17 enterprise. All this cannot be repeated all the time, but it is repeated
18 in the indictment.
19 My responsibility for the events in Srebrenica has been -- has
20 not been proven in any way. It is my assertion that it was not genocide
21 and it is up to the Prosecution to prove what actually happened. Who
22 killed POWs and for what reasons? What matters is that the Prosecution
23 has not established one of the most important facts; namely, the number
24 of victims. The number is part of the game which is making the people
25 there miserable and is creating a fertile ground for future hostilities.
1 The Prosecution has not proven the number that is being played around
2 with in the public domain. And there are no elements based on which the
3 Trial Chamber could bring a conviction against me, and I believe there
4 are no elements for proving genocide.
5 As for Count 3, persecutions, the Prosecution did not choose
6 between direct, individual responsibility, or guilt by association.
7 Beginning with paragraph 14, items 3 through 6, the Prosecution claims
8 that I supported and participated in the establishment and maintaining
9 political and government organs and of the VRS, the TO, the MUP and
10 Bosnian Serb paramilitary forces and volunteer units. They keep using
11 the term "Bosnian Serb forces." This is another term that brings only
12 confusion because Bosnian Serbs does not specify which forces were guilty
13 of persecutions and arrests. The Prosecution calls everyone Bosnian Serb
14 forces. For instance, the paramilitary formations in Bijeljina, Brcko,
15 and Zvornik, for whose disbandment and arrest I engaged our own
16 specialised brigade and requested even more specialised policemen and
17 experienced fighters from Serbia. They call them also Bosnian Serb
18 forces, although it is clear that Serb forces actually arrested them.
19 As I've mentioned before, the Prosecution has also failed to
20 prove that organs were established with the purpose that the Prosecution
21 ascribes to them. The authorities were formed because it was our right
22 according to international covenants on human rights. Every people has
23 the right to self-organised, to foster its culture and identity and
24 preserve its resources and assets. In the breakup of Yugoslavia, the
25 Serbs made a minimal number of steps and the Prosecution has not proven
1 that the authorities did exist. Now had been established with the
2 intents that they claim they had.
3 The Prosecution has failed to prove regarding persecution in
4 various municipalities and everything that is covered by paragraphs, that
5 is items 3 through 6, that there was a pattern of behaviour in Serb
6 municipalities. There was no pattern, first of all, because in many
7 municipalities nothing happened whatsoever; secondly, because the events
8 in certain municipalities took place at different times. In some
9 municipalities events started happening as late as two months after the
10 war started and it was not up to the Serb side. Instead, it was both
11 Muslims and Serbs in many municipalities that maintained peace for many
12 months until an intervention occurred by central authorities in Sarajevo
13 to start the fighting.
14 The Prosecution did not prove any motivation or interest. The
15 weaker Serb community in Bosnia holding, or rather, being stretched over
16 200 [as interpreted] kilometres of front line, what interest would they
17 have in opening new front lines behind their lines? That would have been
18 totally unreasonable. No motivation for that could be proved. I said
19 2.000 kilometres of front line, not 2 00.
20 And when there were no troops behind our lines, because all of
21 them were on the front line, why would we have started any new fighting
22 with our compatriots of Muslim ethnicity? The Prosecution did not prove
23 that any incident in municipalities happened at our initiative and in the
24 absence of fighting. On the contrary, the witnesses have confirmed that
25 in municipalities such as Sanski Most the evacuation of civilians in --
1 from combat areas such as Hrustovo, a witness confirmed that it was the
2 Muslims who started shooting and there was fighting. The population was
3 evacuated within the same municipality into a mixed Muslim-Serb village
4 where there was no fighting, where everybody lived peacefully at the
5 time, the mosque was not destroyed, this simply didn't happen. We see it
6 on the screen now, a passage from the testimony. Yes. Here is a passage
7 from the testimony of Dr. Mujadzic who confirms that in areas with a
8 lower percentage of Muslims there were no problems. And he enumerates a
9 large number of municipalities, 17 municipalities only in Krajina where
10 there had been no problems. There was no pattern. To prove that there
11 was one, the Prosecution would have to prove why measures were taken that
12 were not of systemic nature.
13 The first step that allegedly marks the beginning of a chain of
14 criminal acts ascribed to me and other members of the JCE, the
15 Prosecution points to so-called take-overs in municipalities. And in
16 paragraph 105 of the pre-trial brief they specify immediately before the
17 take-over of power, dismissals, discrimination, and other similar acts
18 started. However, from my speech at the Assembly on the 25th of January,
19 1992, it is clearly obvious that I said we have legitimate and lawful
20 authority over 70 per cent of the territory. And if you wanted to
21 introduce a new kind of government you cannot introduce it there. The
22 Prosecution has not proven that there was any take-over. Power was taken
23 in some places because a lot of ex-communists remained in power after the
24 new elections and it was necessary to introduce power after the
25 elections. I claim that the same authorities were in place from 1992 to
1 1996 and there was no take-over.
2 If we remember that the offer made was to have each ethnic
3 community create its own municipalities with their own municipal organs
4 of government, it is quite clear that this did not have anything to do
5 with dismissals. The year was 1990. So the government was the same from
6 1990 until 1996. The elections were held in 1990. So everyone could
7 have their own municipality, and it was therefore only natural that
8 Muslim policemen would join the Muslim police station, but then they
9 could also stay on, on the condition that they accepted Republika Srpska.
10 We saw here Stojan Zupljanin's speech made on the 13th of May in
11 Banja Luka. Since Banja Luka had not created ethnic municipalities, he
12 said in that speech that almost all Muslims and Croats stayed on at the
13 Banja Luka centre of the police and 50.000 inhabitants of Banja Luka
14 applauded that. Now, where is intent there? Where is there any kind of
15 intention of dismissing Muslims where there is a single municipality?
16 That was not proven, that they had been dismissed. What was proven was
17 that some did not want to acknowledge the authority of Republika Srpska,
18 they did not want to take the solemn oath, they did not even want to go
19 to the police station, but it has not been proven that they were
20 dismissed an ethnic grounds.
21 As far as persecution is concerned in Counts 3 to 6 there is a
22 reference to detentions. However, the Prosecution did not prove that
23 people were detained on the basis of their ethnic or religious
24 affiliation. On the contrary, we see that detention had to do with
25 investigation centres. A triage was carried out at these centres in
1 terms of finding the persons who were suspected of having taken part in
2 armed rebellion or, on the other hand, there were people who were
3 mistakenly arrested, Serbs and Muslims were arrested by mistake. And
4 such persons were released very quickly. Investigation centres were
5 proclaimed camps in this indictment, like Keraterm, et cetera.
6 Fifty-nine per cent of the people who were brought to these
7 locations were released because they did not abide by the curfew, that's
8 why they were arrested. But 59 per cent were released. It was
9 established that 41 per cent had taken part in combat and committed
10 crimes, therefore they were in prison. Of course in a situation where
11 chaos prevailed and when there was a lack of communication with the
12 central authorities, there were prisons, or rather, detention centres
13 that had been established without the government knowing about this.
14 We heard Prime Minister Djeric here describing the extent of the
15 difficulty he had - he and the government - in terms of influencing what
16 was happening on the ground because they did not have communication, they
17 did not have access. However, even in these centres -- well, witnesses
18 gave evidence to the contrary here, namely, that it was individuals that
19 committed misdeeds. It was not organised and also these individuals did
20 such things only when their immediate superiors were absent. For
21 example, in Vogosca everybody was trying to conceal this from
22 Branko Vlaco. No one dared say that they had done something.
23 Then in Hadzici, Witness Music testified to the following: As
24 soon as the hooligans got away, the guards took them out, they took them
25 to a different room, not the one that had been affected by some yellow
2 Then in Omarska Muslim witnesses testified here to the following:
3 Certain psychopaths among the guards mistreated detainees as soon as the
4 investigators would leave. So this did not happen in front of the
5 investigators. Also, a witness testified on page 19859 that they did not
6 beat detainees before the commanders, their immediate superiors.
7 So what happens in a civil war is what happens when brethren
8 fight because Serbs consider Muslims to be their brothers. It has to be
9 proven that that is part of the system and that the government and state
10 stand behind that; that was not proven by the Prosecution. There is this
11 absurd allegation in the indictment to the effect that I failed to notify
12 government organs about misdeeds that were occurring in the field.
13 However, what was proven here is that the president does not have
14 investigation agencies of his own, that he is not capable of carrying out
15 investigations, that it works the other way around, it is the state
16 authorities, the government authorities, that should provide information
17 to the president. It's not the other way around. How can the president
18 know what is happening on the ground? I mean, when the government
19 authorities are carrying out their work properly, then the president is
20 not supposed to interfere. However, it has been proven here that I
21 intervened or interfered only when it was necessary for me to intervene,
22 namely, not to have persons released from custody and to speed up
23 investigations. Many witnesses testified here stating that I did not
24 meddle in the judiciary. I just asked for the judiciary to act in an
25 expeditious manner, and also I did not want persons who had committed
1 serious crimes to be set free. There are no finger-prints of mine on any
2 misdeeds. Wherever I interfered, either following the intervention of
3 international representatives or in any other way, this interference was
4 on behalf of humanity, humaneness, lessening the suffering of all
5 civilians irrespective of their ethnic background.
6 So the Prosecution has not provided evidence on the basis of
7 which the Trial Chamber could reach a decision amounting to a conviction
8 with regard to Counts 3 to 6. Speaking of detentions, the Prosecution
9 says that there was forced labour and so on. However, on page 19744 - I
10 don't think that these were protected witnesses - they confirmed that
11 work was voluntarily, not only at Manjaca but also at Batkovic, for
12 instance. They could hardly wait in Batkovic to have an opportunity to
13 work. For three months they would receive better food, they would bring
14 food and alcohol to their colleagues, so it was not proven that this work
15 or labour went outside the framework that is envisaged by law. And as a
16 matter of fact, there even wasn't enough room for all of those who wanted
17 to work to actually get this kind of work.
18 As regards persecution, on page 19121, a witness testified
19 stating that there were several obstacles on the path leading to freedom.
20 Some people said that even 15 different certificates had to be handed in.
21 Then also they testified to the effect that persons had to be bribed so
22 that they could leave. Also that transport had to be paid for and the
23 buses had to be awaited.
24 Now, it is not only that many Serbs, Croats, and Muslims left
25 before the war and during the first year of the war, but many changed
1 their place of residence after the war. We saw the evidence adduced here
2 by Ewa Tabeau, namely that between 1995 and 1997 there was a significant
3 change in the ethnic picture because when people saw what kind of
4 solution had been agreed upon, they decided to go to the entity in which
5 their ethnic community was a majority. There was not a single place
6 where there weren't Muslims and Croats, I mean there wasn't a single
7 place in Republika Srpska where there weren't any Muslims and Croats. We
8 saw the figures here. The Prosecution did not prove what kind of a
9 difference there was between the Muslims and Croats who stayed on living
10 there in peace throughout this period and, on the other hand, Croats who
11 left Republika Srpska in different ways. There was no forcible
12 deportation. The Prosecution did not prove any such thing.
13 I have to say for the sake of the truth that like in many other
14 cases language issues lead to the confusion. When somebody says that
15 they were forced to leave and when we ask who it was that forced them,
16 then we do not find a subject involved. Persons were compelled or forced
17 to leave due to the situation, due to the conditions that prevailed.
18 When you cannot identify who it was that forced them to leave, then it is
19 developments as such that forced persons to leave.
20 Now that we're dealing with detention facilities and persecution,
21 we remember Eset Muracevic here who confirmed that out of 400 Muslims
22 nine ended up in Kontiki, himself included, and he admitted that he
23 smuggled weapons, or rather, that he was arming his community and
24 carrying out preparations to fight. How can that be called persecution?
25 I am completely leaving aside the fact that there is not a shred of
1 evidence linking me to any of this and that that is the job of the
2 president of the republic in any conceivable way. How can the president
3 of the republic look into each and every corner and intervene? Least of
4 all was there -- there was no evidence adduced to the effect that I
5 intervened for the purpose of persecution. The Prosecution also says
6 that I failed to take action in this kind and that I did not make efforts
7 to have prosecution take place. First of all, the president only has the
8 regular organs of the police and the judiciary, no organs of his own.
9 The contrary has not been proven. I acted upon each and every credible
10 information that I received about misdeeds that were committed. We heard
11 Colm Doyle that he informed me on the 16th of August, 1992, about
12 misdeeds that had been done, and on the 19th when I returned to Pale I
13 made a decision annulling all of this. I even took action on the basis
14 of information that was not all that credible, but still it was the
15 Muslim propagandists that were fooling the international community in
16 this way. And, therefore, I clashed with the army and the police because
17 I was exerting pressure on them, telling them not to do something that
18 they hadn't done in the first place.
19 So the Prosecution did not prove any kind of concealment, not
20 only on by part, they didn't prove that the police had concealed
21 anything. We have seen a multitude of documents here. Each and every
22 crime was documented, therefore it cannot be concealed because it would
23 be dealt with at some point in time. If the perpetrator is known or
24 accessible, these crimes were brought before a court even during the war
25 itself. We heard people here from the judiciary who said that I did not
1 intervene on behalf of the perpetrators; rather, I intervened in the
2 opposite way.
3 As for Counts 4, 5, and 6, that is to say extermination, murder,
4 the Prosecution says different things here but they did not really prove
5 that I had planned the extermination and murder of Muslims in various
6 municipalities and then in Srebrenica and in Sarajevo. Because of a lack
7 of evidence, the Prosecution is trying to gloss over the fact that there
8 is no evidence to that and they keep saying that I must have contributed
9 to this because there was a civil war going on. But they did not
10 actually adduce any evidence. No mens rea on my part in terms of
11 planning, aiding, abetting, instigating, committing murders,
12 extermination, et cetera, not a shred of evidence. And then, as an
13 alternative, they say that I knew or had reason to know that
14 exterminations and murders would happen or had already happened and were
15 committed by my subordinates. And they say that I took risks and that I
16 continued to work on the accomplishment of these objectives in spite of
17 that risk.
18 We saw here that the Serb side did not need a war. The Serb side
19 did not want to have a government that they did not accept imposed in its
20 territory. It was absolutely unnecessary to resort to violence in order
21 to attain the Serb strategic objectives. And, finally, it wasn't the
22 Serbs who declared war on the Muslims; it was the Muslims who declared
23 war on the Serbs. That was on the 20th of June, effectively from the
24 22nd of June. Serbia and Montenegro and Serbs in the Serb autonomous
25 regions are declared the enemy.
1 There is evidence showing that I spent all of 1992 trying to
2 convince Izetbegovic that he should withdraw this and that we should have
3 peace and seek a political solution. And now the Prosecution is saying
4 that I should have told the Serbs, All right, all these things happening
5 to you, let them happen, don't defend yourselves, because during your
6 defence someone may commit a crime. But they would not have listened to
7 me. It's not that I would have advised them to do that, but there are no
8 instruments to prevent people from defending themselves. People who have
9 experience from a war that had happened 50 years before that. The
10 Prosecution still says in the indictment that I was the one who was
11 trying to intimidate the Serbs, but these are open wounds. This is
12 within living memory. There are people who are still alive and who were
13 wounded and harmed in different ways in the Second World War, and no one
14 needs to intimidate them.
15 The Prosecution did not show that we wanted to impose our
16 authority in any Muslim community, either in our own municipalities where
17 Muslims were or in other areas. It's quite clear that the Muslims wanted
18 to impose their authority on the Serbs. The Croats were free to express
19 their own will, but the Muslims did that. There was evidence here that
20 the Serbian community had nothing against Muslims and Islam, but we
21 wanted them to remain and live in Yugoslavia. And evidence that it was
22 not a matter of Muslims and Islam is the good co-operation with a number
23 of people from the Muslim community who were not of an Islamic [as
24 interpreted] or Muslim orientation.
25 As for the establishment of the municipalities wherever there
1 were conditions for that, this absolutely destroys the foundations for
2 the assertions that we wanted to throw out Muslims and Croats from the
3 territory of Republika Srpska. It should have been "fundamentalist"
4 orientation instead of "Islamic" orientation. There's an error in the
6 How was it possible to drive somebody out if you had a Muslim
7 municipality of Bratunac and a Serb municipality of Bratunac? The very
8 fact that the Serbs said that everyone should organise in their places of
9 residence absolutely disqualifies any allegations about eventual
10 intentions that Republika Srpska should be ethnically pure.
11 Items or Counts 4, 5, and 6 have not been proved in any aspect.
12 The Prosecution did not show that there was a systemic approach to the
13 question of minorities in Republika Srpska from which these crimes would
14 then result. Each municipality was specific and it had its own moment
15 when peace turned into chaos, its own individual cause for that. There
16 was no question of a decision by any state organ and there was no
17 question of any initiative or order from any other place other than the
18 fact that the circumstances in each municipality dictated what would
20 The Prosecution did not show that there was a pattern for the
21 joint criminal enterprise to remove Muslims and Croats through killing.
22 Prosecution witnesses confirmed that it was possible to live in
23 Republika Srpska and that people were living in all settlements of
24 Republika Srpska from the beginning until the end of the war and that
25 this did not depend on the Serbian authorities.
1 It was clearly proved that the disruption of the life of Muslim
2 and Croat citizens could have happened by the immediate superior of any
3 authority. Witnesses also confirmed here that the crucial fact was
4 whether there was some fighting or not in a said municipality. Where
5 there was no fighting the citizens were safe. The Prosecution did not
6 show otherwise.
7 As for deportations, Count 7 and 8, deportations, inhumane acts,
8 these counts were also not proved in the sense that these things happened
9 not with the initiative and will of the leadership but also with the
10 knowledge and tacit approval of the state organs. Quite to the contrary,
11 everywhere where authorities were established, such things were
12 prevented, investigated, and punished or documented in order to be
13 punished later. This is, once again, a question when we're talking about
14 the crime of killing, the number of casualties, the numbers, and the
15 Prosecution did not prove who did the killing and who were the victims.
16 President of the republic or any state organ is unable to accept the fact
17 that some Serbs killed some Muslims. Possibly yes, but this cannot be
18 held to be the responsibility of the state organs or the bearers of state
20 We also saw that in Sanski Most the police investigated 30
21 incidents, and these were 30 incidents of violations against Croats and
22 Muslims. None of them were left uninvestigated. And as Judge Draganovic
23 said, prosecutions were possible on the basis of the investigations by
24 the Serb authorities.
25 I would now like to refer to Counts 9 and 10. The Prosecution
1 gave up, abandoned, their assertions that the reasons for our acts in the
2 Sarajevo area were the same as everywhere else: The removal of Muslims
3 and Croats from the territories to -- which we claimed for ourselves.
4 The Prosecution is aware and they did take into account that we did not
5 dispose or intend to capture territories that were in the sector of
6 Sarajevo, which is quite a considerable area, and where the majority
7 population was Muslim. Quite the contrary. During the presentation of
8 their case, the Prosecution proved that we did not claim nor undertake
9 any offensives for the objective of capturing areas of Sarajevo except in
10 one case for military reasons because we could not tolerate attacks from
11 this area, Otes, anymore.
12 A Muslim officer who testified here confirmed that the line of
13 the front was more or less steady throughout the whole period and that
14 the internal line of separation at the start of the war was 42 kilometres
15 long and at the end of the war it was 64 kilometres long, which means
16 that the Muslim side liberated or captured a part of the town and
17 expanded this zone. Because by the very nature of the inner ring, had we
18 advanced the confrontation line would have been shortened. This ring
19 would have narrowed and the line of confrontation would have been
20 shorter. The Muslims managed to extend the line of confrontation in the
21 town from 42 to 64 kilometres, amounting to 22 kilometres of the front.
22 It was not proven that it was our interest to conduct fighting in
23 Sarajevo and it was not proven that we even initiated it. Even at the
24 time when the Yugoslav People's Army was inert, people in neighbourhoods,
25 in local communities set up a line of separation, literally defending
1 their hearts. And except for this advance by the Muslim forces, this
2 line remained steady more or less until the end of the war.
3 We heard here from Prosecution witnesses, from representatives of
4 the United Nations forces, that it was the military policy of the Serbian
5 side in Sarajevo containment, containment of the large 1st Corps of the
6 Bosnia-Herzegovina army. 17.000 Serbian soldiers, locals who lived
7 there, they did not come from anywhere else, were protecting their
8 neighbourhoods and containing 80.000 Muslim soldiers, preventing them
9 from overrunning the Serbian part of Sarajevo and going to fight in other
10 parts of Bosnia and Herzegovina. There was no siege even though the --
11 if it had been there it would have been legitimate. But there was no
12 siege. Everybody was sieging everybody else, but the Serb locals became
13 the Serbian army in defending their homes and their neighbourhoods.
14 And now if we're not seeking and not intending to capture parts
15 of Sarajevo and drive out Muslims and Croats, how - as is being ascribed
16 to us for the rest of Bosnia and Herzegovina - what would then have been
17 the motive for us to terrorise Sarajevo? At that time there were between
18 50- to 70.000 Serbs living in Sarajevo who were not allowed to leave and
19 who in racial terms are not any different from Serbs of the Muslim faith
20 but are the same. It is being put forward now that we terrorised them by
21 sniper fire. No incident in that sense was proved here beyond a
22 reasonable doubt. We heard here that there were snipers who shot bursts
23 of fire --
24 JUDGE BAIRD: [Microphone not activated]... at this point we are
25 not really concerned with proof beyond a reasonable doubt, not at this
1 point. Thank you.
2 THE ACCUSED: [Interpretation] Thank you. Well, it hasn't been
3 proved at all. No incident has been proved. How can a sniper produce
4 automatic fire? As in a case where one bullet shot a person in the tram
5 and it was not visible. We heard some absolute gems as a result of
6 investigations, where the source of -- we saw, for example, where
7 directions are shifted by 90 degrees in order to prove that it was the
8 Serbs who committed something. No incident actually was proved as having
9 been committed by the Serb side.
10 In conditions when Sarajevo was very militarised, something that
11 was proved here, and where the military infrastructure and the military
12 elements were intermingled with the civilians, something that
13 General Dzambasovic confirmed here, that they did not have enough space
14 to move away from their civilians. In conditions where the expenditure
15 of large-calibre ammunition was equal or even greater on the Muslim side,
16 the indictment still sticks to the position which it did not manage to
17 prove that the Serbs fired more than the Muslims did or that the Serbs
18 would fire first without any provocation or without any context of
19 defence. The Prosecution did not manage to prove that this was
20 unilateral fire. They did not manage to prove that the Serbian side
21 fired indiscriminately. The Prosecution did not show or proffer evidence
22 that the return fire from the Serbian side was indiscriminate.
23 Not only was the Muslim military infrastructure all over the
24 place, but also there was the fact of mobile mortars. So there was no
25 evidence that the Serbian side fired indiscriminately and without any
1 military cause. Of course the question of ammunition expenditure showed
2 that, for example, the Muslim forces fired a large number of shells, only
3 a part of which targeted or hit Serbian territory. The Prosecution did
4 not then manage to show where these other shells fell and they did not
5 differentiate between what was Serb shelling and what was a Muslim
6 shelling. We have seen here quite failed investigation, even
7 grotesque-sounding investigations, where the trajectory was not
8 established horizontally or vertically, but one would just come to the
9 window and look at Serb positions and say, Yes, that's where the fire
10 came from. This was something that was completely unproved.
11 The Prosecution did not manage to tell who committed the crimes
12 even in the case of Serbs. They did not manage to identify exactly which
13 Serbs possibly fired. The Prosecution refers to Sarajevo forces as the
14 perpetrators of various crimes. Which Sarajevo forces? There were 5- or
15 6.000 Serbian soldiers involved with Sarajevo and some 10.000 who were
16 involved in the Central Bosnia front in the town. The front was 40
17 kilometres broad. In the town itself there were 40- to 60.000 Muslim
18 soldiers at any given time. These were also Sarajevo forces.
19 The Prosecution did not manage to prove that the Serbs carried
20 out military unjustified actions in the Sarajevo sector and did not
21 manage to prove that Sarajevo was a civilian zone nor did they manage to
22 prove that the civilians were the target of any given military action by
23 the Serb side. Quite the contrary. It was shown that the town was full
24 of trenches, that the line of separation of the Serbs and the Muslims was
25 40 kilometres long, sometimes just a few metres apart. And what came out
1 was quite opposite from the assertions of the Prosecution, and that is
2 that there were Muslim sniper nests and also the international
3 representatives were convinced that the Muslim side also fired on its own
4 people. In conditions where we have mobile artillery heavy weaponry and
5 mortars, in conditions where we have indications, well-grounded
6 indications that there was fire on their own people, the Prosecution is
7 then obliged to precisely prove that something that was fired was fired
8 from the Serbian side and that it was fired with the intention alleged in
9 the indictment. We did not, however, see such proof.
10 International representatives here testified for the Prosecution
11 and confirmed that the Muslim tactics in the Sarajevo area was to show
12 the worst possible situation, and they did everything they could to
13 secure international military intervention. In conditions of this
14 confirmed tactics, the worst, the better, the Prosecution did not manage
15 to show who did what and with which motive. They did not manage to prove
16 that and they did not manage to isolate exactly what it was that the
17 Serbian side did. The shooting that we saw in the Sarajevo sector was
18 mutual. Had the Serb side been firing at the city and at civilian
19 facilities indiscriminately, you would have ruins that would be worse
20 than those in Dresden or Mostar. We saw aerial footage of such results.
21 Compared to such destruction, Sarajevo was not even scratched.
22 I kindly ask for your indulgence for a moment.
23 Excellencies, as for the position on humanitarian issues, the
24 Prosecution did not manage to prove that I had a negative attitude
25 towards civilian matters or the welfare of civilians of any ethnicity. I
1 did not interfere in these matters unless this intervention was asked of
2 me. When I was asked to do so and evidence was shown here that my
3 intervention was always on behalf and for the benefit of the flow of
4 humanitarian aid in order to ease the position of civilians. Each
5 intervention was always of that kind.
6 Not only did I issue a lot of general-type documents in order to
7 prevent suffering, not only did I intervene frequently, perhaps even
8 without justification with my own army, scolding them and attacking them
9 frequently without justification, I also reacted to any report from
10 international factors that they noticed that something was being held up
11 somewhere, that aid was not arriving. I would always intervene.
12 Wherever I left any traces, all of these traces would be in order to
13 support humanitarian aspects and for the benefit of civilians.
14 Gentlemen, we saw Sarajevo. Any drop of water that Sarajevo
15 received, except for a small spring, came from the Serbian side.
16 Whenever we had water, they also had water. The Prosecution did not
17 prove that we sabotaged the civilian life in Sarajevo. The Prosecution
18 did not prove that it was our interest to have fighting in Sarajevo,
19 quite the opposite. There was evidence that we often proposed that
20 militarisation of Sarajevo and placing Sarajevo under UN
21 administration -- the other side would not accept that. But we have
22 quite convincing proof that the international factors confirmed this as
23 being our position.
24 Everything that was received for the civilians came through
25 Serbian territory. A witness from a humanitarian organisation confirmed
1 here that there was an average of 700 transporters and trucks every day
2 on the roads of Bosnia and Herzegovina. Except for a narrow area going
3 along the sea, all these transports went through the territory of
4 Republika Srpska.
5 The proportion of hindered inspected and intercepted convoys due
6 to some irregularity is negligible compared to the total number of
7 convoys that arrived. It has been shown and proven that my position was
8 that we should not wage war using electricity, water, gas and food. It
9 has been shown that the Serb side was forthcoming and provided its
10 compatriots in the Muslim part of Sarajevo with aid without any
11 discrimination. Look at the testimony of General, I believe,
12 Milovanovic. He said he used my name to facilitate the passage of
13 convoys and the observance of his own orders. If he had any problems
14 with the army who protested why the Muslims were getting food when they
15 had none, he would drop my name and that helped convoys pass through.
16 Thousands of flights landed at Sarajevo airport. We controlled that
17 airport; it was on Serbian land. We controlled it and we made it
18 possible to use that airport to provide Sarajevo with humanitarian aid,
19 although of course they were able to introduce whole units and war
20 equipment through the tunnel, they also used humanitarian convoys for
22 But the fact is everything that was not air-lifted to facilitate
23 the civilian life in Sarajevo came through the Serbian territory 365 days
24 a year. And the Prosecution simply cannot prove that the Serbian
25 side - and especially me - hindered humanitarian efforts or that I
1 contributed in any way to the suffering of civilians. On the contrary,
2 all the evidence shows that I did all I could to ease their situation.
3 Of course there remains the fact that it was very difficult to
4 command and control a popular army consisting of soldiers who are local
5 residents. Here's a passage of one testimony:
6 "No, I haven't seen any directives straight from the higher
8 General Razek confirms there were difficulties in command and
9 control and that it was not difficult to keep things under control on the
10 ground. General Razek confirmed that this was a civil war where not only
11 armies fired at each other but civilians against civilians, farmers
12 against farmers. And now we see that the developments in Syria are very
13 much like the events in Bosnia. We hear that from American generals.
14 They say that one village is fighting another.
15 And how could the Prosecution have been even expected to prove
16 the responsibility of the central authorities of the republic under
17 circumstances where there were no professional armies, where everybody
18 had their own army. On the contrary, it was proven that in places where
19 the state has a presence, where the Serbian forces were really present,
20 the crime rate was the lowest.
21 The Court's indulgence.
22 [Defence counsel confer]
23 THE ACCUSED: [Interpretation] We wanted to show to you a lot more
24 than we are able to within this limited time, but we are convinced that
25 being a professional Trial Chamber rather than a jury you realise
1 yourself how many things, how many allegations by the Prosecution, remain
2 unproven and how many things are proven to the contrary, in fact.
3 There is a kind of virtual bridge that the Prosecution is trying
4 to use to link some war events to me, presenting them as a product of my
5 criminal intentions, like that we wanted to create a homogenous and
6 ethnically pure Serbian republic. That has not been proven. And if that
7 has not been proven, the whole indictment should collapse. It has not
8 been proven that our intentions were illegitimate, there is no evidence
9 that our intentions could only have been realised through war and
11 Our objectives were possible to achieve politically. They were
12 recognised by the international community and they were sanctioned,
13 codified in all the treaties and agreements, and finally formulated in
14 the Dayton Accords and that will remain so for all times. They are
15 simply grounded in our rights. If a war was detrimental and unneeded by
16 anyone, those were the Serbs. But the Prosecution didn't even bother to
17 try to prove this, the existence of this narrow bridge. The Prosecution
18 failed to lay a foundation for the indictment let alone prove its
19 allegations in it.
20 I will not use up any more of your time, and I will kindly ask
21 Mr. Robinson to present our position on Count 16 --
22 THE INTERPRETER: 11, interpreter's correction.
23 MR. ROBINSON: Mr. President, I'm going to take about 20 minutes,
24 so I think we can continue and finish before lunch, but I do have some
25 copies for the interpreters of our slides that I'm going to use during
1 this part of the presentation. I hadn't had a chance to distribute it
2 earlier, so if that could be done.
3 JUDGE KWON: Thank you.
4 MR. ROBINSON: While we go from Count 1 where there was a
5 plethora of jurisprudence to Count 11 where there's basically no
6 jurisprudence on the issue of whether the detention of UN personnel
7 constituted a hostage-taking.
8 So we look at Count 11 and Count 11 simply charges hostage-taking
9 in violation of Article 3 of the ICTY Statute. Article 3 of the ICTY
10 Statute encompasses conduct that is prohibited By Common Article 3 of the
11 Geneva Conventions. And finally, when we get to Common Article 3, it
12 indicates that:
13 "Each party to the conflict shall be bound to apply as a minimum
14 the following provisions: First, that persons taking no active part in
15 the hostilities, including members of armed forces who have laid down
16 their arms and those placed hors de combat by sickness, wounds,
17 detention, or any other cause shall in all circumstances be treated
19 And among the acts that are prohibited by Common Article 3 are
20 the taking of hostages. The elements of hostage taking can be found in
21 the ICC elements of crimes because they've never specifically been
22 enumerated in ICTY jurisprudence and we believe that basically these
23 elements would be the same with maybe some slight issue about one.
24 The first three elements are that the perpetrator seized,
25 detained, or otherwise held hostage one or more persons; that the
1 perpetrator threatened to kill, injure, or continue to detain such person
2 or persons; and that the perpetrator intended to compel a third party to
3 refrain or act in an explicit condition for the safety or release of such
4 person or persons. These three elements aren't really the focus of my
5 submission in this case. It's the fourth and fifth elements where we
6 think that there are matters of importance. The fourth element is that
7 at the time the person or persons were protected under one or more of the
8 Geneva Conventions; and fifth, that the perpetrator was aware of the
9 factual circumstances that provided that protected status.
10 And so, the issue in our case as we see it is: Were the UN
11 personnel who were detained persons taking no active part in the
12 hostilities, such as to render them protected persons under
13 Common Article 3? And so it depends -- the answer to this question
14 depends on whether the UN was engaged as combatants at the time their
15 personnel were detained. And you recall the facts of the hostage-taking
16 incident, which were essentially that General Rupert Smith had warned the
17 Bosnian Serbs that unless they returned certain heavy weapons to the
18 exclusion zone around Sarajevo, he would authorise NATO to commence
19 air-strikes. And when the Bosnian Serbs did not return all of the heavy
20 weapons to the exclusion zone, he authorised an air-strike on a separate
21 target; that is, the ammunition depot and Pale. And that ammunition
22 depot was hit by NATO air-strikes on the afternoon of the
23 25th of May, 1995, and on the morning of the 26th of May, 1995, and
24 following those air-strikes, personnel of the United Nations who were in
25 Serb-controlled territory were detained.
1 So those are the facts, and the question is: What was the status
2 of those persons at the time they were detained?
3 We believe that that's answered by a Convention on the Safety of
4 United Nations and Associated Personnel that has been come into force and
5 was promulgated through the United Nations at the beginning of 1995 and
6 came into force sometime later, after this incident took place.
7 And it provides for the protection of United Nations personnel in
8 combat areas and in areas where they're serving as peacekeepers, but it
9 indicates that this convention shall not apply to a United Nations
10 operation authorised by the Security Council as an enforcement action
11 under Chapter VII of the Charter of the United Nations, and there is no
12 doubt that what was authorised in Bosnia was an enforcement action under
13 Chapter VII. All the UN resolutions are replete with references to
14 Chapter VII. And then it goes on to say:
15 "In which any of the personnel are engaged as combatants against
16 organised armed forces and to which the law of international armed
17 conflict applies."
18 Now, in the ICC they dealt with a situation where an accused was
19 charged with an attack on peacekeepers, not hostage-taking, but a
20 different violation. And that happened in Darfur and in that case, the
21 Abu Garda case, the Pre-Trial Chamber hearing the confirmation of charges
22 decided that there was a distinction between peacekeeping operations
23 which only use self-defence and so-called peace-enforcement missions
24 authorised under Chapter VII which have a mandate or are authorised to
25 use force beyond self-defence in order to achieve their objective. And
1 that's what we had in Bosnia, where Colonel Rupert Smith or
2 General Rupert Smith was authorised to call in air-strikes, not in
3 self-defence but to "enforce the mandate of the United Nations."
4 And in the ICC the Chamber said that personnel involved in
5 peacekeeping operations enjoy protection from attacks unless and for such
6 time as they take a direct part in hostilities or in combat-related
7 activities. And the majority finds that that protection does not cease
8 if such persons only use armed force in the exercise of their right to
9 self-defence, which is what took place in Sudan.
10 But in our case, General Rupert Smith acknowledged that the
11 bombing of the Pale ammunition depot was not in self-defence. You'll
12 find that on page 11873 of the transcript, and he agreed that the
13 personnel carrying out the air-strikes were combatants. You'll find that
14 at page 11880 of the transcripts. We also have evidence of the positive
15 impact that air-strike had on the war effort of the Muslims and the UN
16 reported that in Exhibit D1176 at page 61 --
17 THE ACCUSED: Just a moment, there's no Serb translation.
18 MR. ROBINSON: Thank you.
19 Now --
20 JUDGE KWON: Just a second.
21 I think it has now been completed.
22 THE ACCUSED: Yeah. You have been -- you stopped to the issue of
23 the benefits for the Muslims.
24 JUDGE KWON: Yes, please continue.
25 MR. ROBINSON: Okay. Thank you.
1 General Smith made the distinction that NATO was a combatant but
2 the UN was not, and that's legally incorrect.
3 Judge Christopher Greenwood in an article he wrote before he
4 became a judge at the International Court of Justice said that:
5 "Even if it could be argued that only the NATO air-strikes and
6 not the ground operations of UNPROFOR itself reached the level of an
7 armed conflict, that would not be sufficient to prevent Article 2(2),"
8 and he's referring to the convention on the safety of UN personnel that I
9 showed you earlier, "from removing the protection of the safety
10 convention from UNPROFOR personnel, since Article 2(2) applies to the
11 entirety of a United Nations operation if any of the personnel involved
12 operate as combatants against organised armed forces in circumstances to
13 which the law of international armed conflict applies."
14 The International Law Commission has a document called The
15 Articles of Responsibility of International Organisations, and at
16 Article 16(2) of that document it provides that an organisation is
17 responsible if it authorises or recommends another international
18 organisation to commit an act.
19 And here General Smith testified that the NATO air-strikes were
20 at his request. You will find that at page 11494 of the transcript and
21 in his book which is in evidence as Exhibit D1109 at page 354 he said
22 that the UN went from confrontation to conflict with the Bosnian Serbs
23 when he ordered those air-strikes. It's also well-established that all
24 active-duty members of an armed force are considered combatants,
25 regardless of their actual duties. And General Smith testified that all
1 of the UN personnel who were detained were on active duty. And you can
2 see here references to the ICRC, the Red Cross, in which they have
3 provided that all active-duty personnel of a belligerent are considered
4 to be persons taking direct part in hostilities.
5 Now, what about the question of whether these UN personnel could
6 be considered hors de combat as a result of their detention? So, for
7 example, you heard the facts from Captain Patrick Rechner who testified
8 that he and other members of the UN military observers were at their home
9 or at their office home in Pale when members of the Serb forces came in,
10 detained them, and threatened to kill them if the air-strikes weren't
12 And the question is whether or not by virtue of that detention
13 they became -- went from combatants to protected persons. The answer, we
14 submit, is no. Because otherwise the crime could not be committed, the
15 crime of hostage-taking, could simply not be committed against anyone
16 other than a protected person if everyone who was detained as part of the
17 hostage-taking automatically has their status transferred from combatant
18 to a person hors de combat, and that would make those elements, that the
19 person has to be a protected person and that the accused or the
20 perpetrator has to know about that status, to be completely redundant
21 under the Statute.
22 In addition, the crime of hostage-taking according to some ICTY
23 jurisprudence occurs at the time of detention. In the Blaskic and Kordic
24 case, the Trial Chambers held that the Prosecution must establish that at
25 the time of the supposed detention the allegedly censurable act was
1 perpetrated in order to obtain a concession or gain an advantage.
2 Now, these cases arose out of a very different factual
3 circumstance than the one we have here. In that case there were already
4 about 2.000 prisoners that were under the Croats' control. Those were
5 either civilians or combatants who had been held for quite a long time.
6 So those who were combatants were, in fact, hors de combat by the time
7 that the threat was made.
8 But in this case, the evidence is that the detention was directly
9 linked to the threat and for the purpose of asking that the air-strikes
10 stop. And therefore, it cannot be said that those UN personnel who were
11 detained were hors de combat at the time of detention.
12 Therefore, the element that requires that the victim of
13 hostage-taking be a protected person under the Geneva Convention has not
14 been established.
15 In addition, the element that the perpetrator be aware of the
16 factual circumstances that established that protective status is also not
17 satisfied. The record is replete with consistent statements by
18 Dr. Karadzic that the UN personnel had been detained as prisoners of war
19 before, during, and after the hostage crisis. While the subsequent use
20 of prisoners as human shields may well have constituted a crime, that
21 crime is not charged in this indictment. Therefore, because there is no
22 evidence upon which the Trial Chamber could conclude that each of the
23 essential elements of Count 11 have been established, it should enter a
24 judgement of acquittal for the charge of hostage-taking.
25 Mr. President and members of the Trial Chamber, we thank you for
1 your attention to our submissions today. I'd like to also thank many of
2 the legal interns whose research contributed to our submissions, and that
3 concludes our motion. Thank you.
4 JUDGE KWON: Thank you, Mr. Robinson and Mr. Karadzic.
5 We'll hear Prosecution's response on Wednesday at 9.00. Before
6 we adjourn for today there are a couple of matters I'd like to deal with
7 at this moment.
8 On the 26th of April, 2012, the Chamber ordered that the accused
9 serve on the Prosecution and the Chamber copies of the reports of the
10 expert witnesses he intends to call no later than 27th of August, 2012.
11 On 29th of May, 2012, the accused filed a motion for extension of time
12 relating to expert report of Professor Kosta Cavoski. In that motion the
13 accused requests an extension of time until 31st of December, 2012, in
14 which to file the expert report of Professor Cavoski. On the 30th of
15 May, 2012, the Prosecution informed the Chamber and the accused by e-mail
16 that it will not file a response and takes no position as to the
17 requested extension of time. The Chamber has decided to grant the motion
18 and orders that the accused file his expert report of Professor Cavoski
19 no later than 31st of December, 2012.
20 For the next matter could the Chamber move into private session
22 [Private session]
5 [Open session]
6 JUDGE KWON: Unless there's any other matters to raise, the
7 hearing is now adjourned for today.
8 --- Whereupon the hearing adjourned at 12.27 p.m.,
9 to be reconvened on Wednesday, the 13th day of
10 June, 2012, at 9.00 a.m.