1 Thursday, 30
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.35 a.m.
5 JUDGE MAY: Yes. Let the Registrar call the
7 THE REGISTRAR: Good morning, Your Honours.
8 Case number IT-95-14/2-T, the Prosecutor versus Dario
9 Kordic and Mario Cerkez.
10 JUDGE MAY: Yes, Mr. Sayers.
11 MR. SAYERS: Thank you, Mr. President. The
12 case is here today for a hearing on the motions for
13 judgement of acquittal made by the accused Mr. Kordic,
14 represented by myself today; and by Mr. Turner Smith,
15 to my left; and also by the accused Mr. Cerkez. Both
16 motions are made pursuant to Rule 98 bis.
17 JUDGE MAY: Let me interrupt you. We have
18 read the very extensive proceedings, particularly on
19 your behalf, in the case; we have read the motion more
20 succinct on behalf of Mr. Cerkez; and we have read the
21 Prosecution response, and so what we would like to hear
22 from you is any comment you have on the Prosecution
23 response and deal with any matters which we want to
25 There is no need to go over all the matters in
1 the original pleading.
2 MR. SAYERS: What I had planned to do,
3 Mr. President, in fact, I prepared an outline of the
4 argument that we have prepared to make today, which I'd
5 like to distribute, if I may. If the Court has any
6 particular questions on the items that we want to zero
7 in on, I'd be more than happy to respond, and I will
8 say that as I understand the Prosecution's brief, the
9 Prosecution expressly states that they do not intend to
10 respond point by point to the arguments made by
11 Mr. Kordic specifically. In fact, there is no detailed
12 response to the recitation of the evidence that we
13 included with as much care as we possibly could in the
14 submissions that we made to the Court.
15 As I understand it, basically the Prosecution
16 articulates, in the first 20 or so pages of their
17 brief, their view of the applicable standard of review
18 of motions made pursuant to Rule 98 bis, and we will
19 address that.
20 They then essentially go on to recite the
21 allegations made in the amended indictment. There's a
22 brief summary of the Prosecution's view of the evidence
23 against Mr. Kordic, and a rather more elaborate and
24 detailed summary of the evidence against Mr. Cerkez.
25 But as I understand it, the Prosecution stated they had
1 no intent to make any detailed response to our brief,
2 saving that, rather, for today.
3 So if I may, Your Honour, I'd just like to
4 distribute an outline of the argument and explain to
5 you who from our side will be doing what, and we'll try
6 to be as succinct as possible, obviously.
7 JUDGE MAY: Let me make the point again.
8 There is no need to repeat what's in your pleading.
9 You can answer what the Prosecution have said, but we
10 don't want to hear constant repetition.
11 Yes, Mr. Sayers.
12 MR. SAYERS: And bearing that in mind, Your
13 Honour, although I have prepared a very extensive oral
14 argument today, let me just touch briefly upon the
15 points in a succinct manner as possible.
16 Let me just start by saying obviously there
17 is a mountain of evidence in this case, but I hope
18 we've shown the Trial Chamber that very little of it is
19 of any specificity against Mr. Kordic. And we are
20 mindful of the magnitude of the pleadings that we have
21 filed, and we apologise for their length, but the
22 seven-day requirement of Rule 98 bis imposes
23 significant obligations upon Defence counsel in a case
24 of this sort, and I apologise for transferring those
25 obligations to the Trial Chamber and to the
1 Prosecution, but to quote Blaise
2 Pascal: "Unfortunately, we did not have time to make
3 the submission any shorter."
4 As we see it, the two essential theories that
5 are articulated in the amended indictment and which are
6 addressed by the evidence are a theory of command
7 responsibility under Section 7(3) of the Tribunal's
8 Statute, and I will handle any questions the Court has
9 on that particular subject with the exception of the
10 standard of review, which I will touch on very lightly
11 and give Mr. Kordic's view, and if the Court has any
12 detailed questions on the standard of review, although
13 it seems rather uncontroversial, Mr. Smith will address
15 JUDGE MAY: The standard of review is
17 MR. SAYERS: Well --
18 JUDGE MAY: Extremely controversial, I
19 would have thought, judging by your pleadings.
20 MR. SAYERS: In our view, Your Honour, the
21 leading case on the application on the Rule 98 bis,
22 which was existed only since November 30th last year,
23 is the Jelisic case, which is consigned to a footnote
24 in the Prosecution's submission. The reason we would
25 respectfully submit to the Trial Chamber that the
1 standard of review is uncontroversial is because the
2 standard is outlined in paragraph 108 of the Jelisic
3 case in black and white.
4 Let me just recite that. The Court said in
5 paragraph 108:
6 "All things considered, the Prosecution has
7 not established beyond all reasonable doubt the charge
8 of genocide made against Goran Jelisic in connection
9 with the crimes in the detention camp at Brcko."
10 The Court said:
11 "The Trial Chamber therefore concludes that
12 it has not been proved beyond all reasonable doubt."
13 And this was on, by the way, a motion for
14 judgement -- actually, it was a consideration of Rule
15 98 bis issue made ex proprio motu by the Trial Chamber,
16 not upon application by the accused in that case.
17 The Court said:
18 "It has not been proved beyond all reasonable
19 doubt that the accused was motivated by the dolus
20 specialis of the crime of genocide. The benefit of the
21 doubt must always go to the accused. Consequently,
22 Goran Jelisic must be found not guilty on this count."
23 JUDGE MAY: Just pause there. Now, that was
24 a case in which the Trial Chamber were about to acquit
25 Jelisic, which is what they did.
1 Now, of course, that is open to us here. But
2 what we are doing is considering, at this stage of the
3 case, what is the test that we have to apply in
4 reviewing the evidence. And you will see there is an
5 extensive recitation of authority in the Prosecution
6 brief dealing with national authority, and also the
7 other cases, Celebici and Tadic, in this Tribunal.
8 Now, what we have to determine is whether
9 there is sufficient evidence to support a conviction.
10 That means to sustain a conviction; evidence which is
11 adequate for that purpose.
12 Now, you will tell me if I'm wrong, but it
13 looks as though the wording in the Rule came from the
14 United States federal rules, which seems to be the only
15 jurisdiction in which the sort of test which you say
16 should be applied is applied. In all other
17 jurisdictions, and indeed in Tadic and Celebici, both
18 cases, of course, before Rule 98 bis, but the Trial
19 Chambers in those cases, and in other jurisdictions,
20 apply what may be thought to be the usual test at this
21 stage, which is: Is there evidence on which a
22 reasonable Tribunal, properly directing itself as to
23 the law, could convict? It's not a question of
24 establishing burdens of proof and that sort of thing.
25 It's a question of looking, as a matter of law, to see
1 whether there is the evidence upon any charge on which
2 a Tribunal, as I say, a reasonable Tribunal, could
4 Now, the test which you postulate and which was
5 applied in Jelisic is the test which is applied at the
6 end of a case, when you are reviewing all the evidence,
7 and our Trial Chamber is reviewing all the evidence,
8 deciding what weight to give it, and then deciding
9 whether the case is proved beyond a reasonable doubt.
10 Now, that is a plausible reading of the law.
11 Some would say it is the correct reading of the law.
12 But that's the argument that you've got to deal with.
13 And you may like to consider this
14 proposition: If your submissions are right, it would
15 mean that the Trial Chamber, if satisfied beyond a
16 reasonable doubt, would have to convict at this stage,
17 which would mean that the Defence would have to call
18 evidence and would have to call evidence on every
19 point. And that doesn't seem to me to be part of the
20 adversarial system.
21 And what you have done is to transpose the
22 final test and try and make it a test to be applied at
23 this stage. That, as I say, is a reading of the law,
24 which some might find convincing.
25 So, far from being uncontroversial, it may be
1 it's your submission which is controversial.
2 MR. SAYERS: Very well, Your Honour. It may
3 be that our submission is controversial, but the only
4 decision I believe to interpret Rule 98 bis to date is
5 the Jelisic decision, and the Jelisic decision
6 articulates the Rule, which is the basis of our
8 The reason that I said it was uncontroversial
9 is precisely because that was the standard that was
10 adopted in Jelisic. And we had not anticipated that
11 there would be such an extensive challenge to that
12 particular proposition.
13 But let me just say, Mr. Smith is prepared to
14 address the detailed issue presented by Rule 98 bis and
15 the standard of review. I'll turn the podium over to
16 him. Thank you.
17 MR. SMITH: Thank you, Your Honours. The
18 argument that we present on Rule 98 bis and its
19 standard is predicated on several propositions.
20 The first is that the Prosecution has the
21 burden, and the entire burden from the outset, of
22 proving guilt beyond a reasonable doubt. And it has
23 the obligation as it presents its case and before it
24 rests its case to prove, to present evidence that
25 proves guilt in its judgement beyond a reasonable
2 In other words, it does the best job it can.
3 And once it has rested its case, that is, as far as the
4 evidence the Prosecution has chosen to lead, as good as
5 it gets. That's the high-water mark, if you like, of
6 the Prosecution's case.
7 And the defendant, because of the burden to
8 go forward and present a case by the Prosecution, has
9 no obligation to present a case himself, he has a right
10 to present that case should, in his judgement, the
11 Prosecution get beyond the goal line, if you like, in
12 presenting his case.
13 Now, the Rule that looks to the reasonable
14 court test was developed originally in the context of
15 jury trials, both in the United States and in the
16 United Kingdom. Indeed, the Galbraith decision is a
17 jury case. In that situation, the person making the
18 decision at the end of the Prosecution case is not the
19 ultimate trier of fact and thus is not empowered, if
20 you like, at that stage to withdraw the case from a
21 jury unless it is satisfied that no reasonable juror
22 could conclude that the person was guilty, the
23 defendant or the accused was guilty.
24 Now, the Prosecution cites -- let me back off
25 a moment. In the United Kingdom, a commentator,
1 Archbold, has recognised that where the judge himself
2 is the ultimate trier of fact and there is no jury or
3 other party who will normally make the decision on the
4 facts, that in that situation, the judge should, logic
5 compels, judicial efficiency compels, that the judge
6 not ask himself at that stage what he would do at the
7 end of the case. The Prosecution has made its best
8 case, and the judge judges on the basis of that case.
9 In the United States, the Prosecution has
10 presented one old District Court opinion, that the
11 normal jury rule, which is much discussed, because
12 generally accused have required juries in the United
13 States, has also been applied in the context where
14 there is just a trial to the judge, and it is our
15 argument that the logic of the rule is wholly lacking
16 when the judge himself, or the Judges in this case, are
17 the ultimate triers of fact, and that judicial
18 efficiency is far better served for the judges to
19 decide, when the Prosecution has taken its best shot,
20 whether the case needs to go forward; in effect,
21 whether this should be the end of the case.
22 Now, we have interpreted that --
23 JUDGE MAY: May I interrupt you for a
25 MR. SMITH: Yes.
1 JUDGE MAY: If as in Jelisic the Trial
2 Chamber come to that conclusion, then, of course, they
3 then have to apply the reasonable doubt test. They
4 have to say, if they're going to stop the case
5 altogether, that they are satisfied that the
6 Prosecution have not satisfied them beyond reasonable
7 doubt. It is, if you like, the ultimate test, using
8 that expression.
9 But here where -- for the sake of argument,
10 let us say there is some evidence on a particular
11 count -- the issue is whether, if there is some
12 evidence, the Tribunal should at this stage decide
13 whether they convict on the count or not, and that is
14 what I suggest is the wrong or may be the wrong
15 question. There may be circumstances where the
16 evidence is so totally discredited or so totally
17 unreliable that a Trial Chamber could feel that it
18 could not rely on it, or there may be cases where there
19 is simply no evidence at all or it's insufficient to
20 carry the inference which the Prosecution invite a
21 Trial Chamber to draw, and it may be that in those
22 extreme cases that a Trial Chamber should direct an
23 acquittal at this stage, but it would then have to ask
24 itself that question.
25 But overall, the question is: Is there
1 evidence on which the Trial Chamber could convict?
2 It's a question of what the Trial Chamber has to ask
4 I might just add this: that from my
5 knowledge, although you're right about Galbraith and
6 the way that that test was developed in the context of
7 the jury system, there is, certainly in England, a
8 system, as you may know, of magistrates who sit in
9 courts of three and are the judges of law and of fact,
10 and as far as they're concerned, the test in a practice
11 direction is whether there is evidence on which a
12 reasonable court could convict. So although of course
13 one also has to have regard to the jury context, it's
14 not always the case that it makes a major distinction.
15 MR. SMITH: Yes, Your Honour. And I would
16 start, in dealing with that, by saying that it seems to
17 me there cannot and should not be two standards under
18 Rule 98 bis. Rule 98 bis operates at the end of the
19 Prosecutor's case on two actuating mechanisms. One is
20 the motion of the accused, and the other is the option
21 of the Judges proprio motu which was the situation in
23 It seems to me, in any case, that if the
24 Judges had themselves the opportunity to acquit the
25 defendant if they did not believe the evidence
1 sufficient on a reasonable-doubt test, that the accused
2 has necessarily, by implication, to have the
3 opportunity to attempt to persuade the judges of that
5 In the United Kingdom case, I'm not familiar,
6 not being from that jurisdiction, with the ins and the
7 outs, but I had thought that it was indeed the summary
8 proceedings before a magistrate situation that Archbold
9 was addressing, and the Prosecution just pointed out
10 that there is at least a case undercutting the
11 conclusion that Archbold reaches, but I submit to you
12 that the logic of what he has said is what drives his
13 conclusion and our argument, and that logic is driven
14 also by judicial efficiency. If the judges can see,
15 when the Prosecution has taken its best shot, that it
16 did not present enough evidence to convict, then
17 judicial efficiency is served by dealing with the case
18 right then. The Defence has a right to proceed and put
19 on additional evidence.
20 It seems to me the Defence is not under any
21 duty, because it is always the Prosecution which bears
22 the burden of proving guilt beyond a reasonable doubt.
23 And the Prosecution has taken its shot at doing that
24 and has rested its case, and it has no opportunity to
25 put on additional evidence except in rebuttal to what
1 the Defence presents in its case.
2 It seems -- we had interpreted it indeed, and
3 one of the reasons we thought this was uncontroversial,
4 we had seen the use of the reasonable judge standard in
5 the Celebici and Tadic cases, and then we had then seen
6 the Tribunal enact Rule 98 bis, with language that we
7 thought, because it dealt with the close of the
8 Prosecution case, the Trial Chamber finding
9 insufficient evidence to sustain a conviction and being
10 required, shall order entry of judgement of acquittal.
11 We had interpreted Rule 98 bis, possibly in
12 error, as being a considered view by this International
13 Tribunal, which is not bound by the both corpus of
14 jurisprudence and perhaps, we submit in this case,
15 mistakes in the context of the judge as an alternate
16 trier of fact of the law of national jurisdictions. We
17 had thought that was what the Tribunal was doing, and
18 we thought it wise and exactly the right decision.
19 And I should point out that in the civil law
20 context, in the common law context, I pointed to this
21 issue of the fact that there is no jury here. There is
22 no other person to decide. In the civil law context,
23 pointed to by the Prosecution, the decisions made
24 before the Trial Judge takes the case are made by
25 persons other than the Trial Judge.
1 And at that stage in the civil proceeding,
2 any person making a decision, in effect, in place of
3 the Trial Judge, must apply or may logically apply a
4 standard that is not simply making a decision on the
6 And once the trial commences in a civil
7 proceeding, it is simply structured differently than it
8 is both at common law and here in this adversarial
9 process. There is no -- the judge takes command. The
10 judge tries the case. There is no Prosecution puts on
11 its case, makes the best case it can, and then we see
12 whether it is necessary for judicial resources, and the
13 resources of the defendant, to be employed further in
14 the process. And that at base -- our argument is based
15 on logic, on what we see as a misperception and
16 misapplication of a jury-based rule, with judge as
17 ultimate trier of fact context. And the fact that this
18 Tribunal is an International Tribunal, stands at the
19 threshold, needs the assistance of judicial efficiency.
20 And we think, based on the Rule as enacted,
21 if the Judges may consider and dismiss an indictment,
22 then the Defence has to be given the opportunity to
23 make that argument. And that is what we have done.
24 JUDGE MAY: You are entitled, of course, to
25 make the arguments, but it's a question of what test
1 the Court has to apply. And if you are right in saying
2 that the Chamber should order the entry of judgement of
3 acquittal, if it finds that a case is not proved beyond
4 reasonable doubt, then, presumably, the Rule would have
5 said that.
6 There is a distinction between what the Trial
7 Chamber said in Jelisic, when it said it wasn't
8 satisfied beyond reasonable doubt, that was its
9 finding, and the question which a Trial Chamber
10 necessarily has to ask itself, or you ask the Trial
11 Chamber to find, namely, that in each case it has to go
12 through the indictment and satisfy itself at this stage
13 that the case is proved beyond reasonable doubt. It's
14 not what the Rule says. And it doesn't necessarily
15 follow from the finding in Jelisic that that's what the
16 Trial Chamber should do.
17 MR. SMITH: Your Honour, it seems to the
18 Defence that the issue involved in the interpretation
19 of Rule 98 bis is whether there is a good reason for
20 the trial to go forward, if the Trial Chamber can see,
21 based on the evidence, the best case the Prosecution
22 can put on and they have then rested, that it needs to
23 do so.
24 Now, that involves some greater work for the
25 Trial Chamber mid-case than otherwise, and the
1 Prosecution has pointed this out. But in the long-term
2 interests of efficiency, it seems to me -- particularly
3 given the length of these trials and the period of
4 Pre-Trial detention that these prisoners, these accused
5 suffer in coming to trial, that long-term efficiency is
6 far more greatly served by the Trial Chamber looking
7 carefully at the evidence at this stage and asking
8 itself, since it is the ultimate trier of fact, it need
9 not hypothesise what someone else would do, if it sees
10 that the Prosecution has failed, and we believe the
11 Prosecution has, and have said so, then it seems to us
12 this is the appropriate time to end the case.
13 JUDGE ROBINSON: Mr. Smith, I was fascinated
14 by your formulation on "good reason." It depends on
15 what you mean by "good reason." I think I would accept
16 "good reason" if by that you mean that there is
17 evidence which raises the legal possibility of
18 conviction, as distinct from the certainty of
19 conviction. Good reason, I think, doesn't mean much
20 more than some reason, some lawful reason.
21 You have been referred to the system of
22 trials by magistrates, who are triers both of law and
23 fact in some jurisdictions. It has happened in some
24 jurisdictions where that system applies that a
25 magistrate will rule that there is a case to answer.
1 The Defence calls no evidence whatsoever, and the
2 magistrate acquits. The magistrate acquits because he
3 is applying, at the end of the case, a totally
4 different standard from the standard which he applies
5 at the halfway stage. At the end of the case, he
6 applies a standard of proof beyond reasonable doubt.
7 At the midway stage he is applying the lower standard of
8 what I call the legal possibility as distinct from the
9 certainty of conviction.
10 I doubt whether the test of proof beyond
11 reasonable doubt is one that would inure to the benefit
12 of the accused. Because if the ruling were to be made
13 on that basis, surely it would be very difficult
14 thereafter to secure an acquittal. Either very
15 difficult or -- either impossible or very difficult to
16 secure an acquittal thereafter. I don't believe that
17 that was what was intended at all.
18 I will agree that the formulation of Rule 98
19 bis is perhaps not as apposite as it might have been;
20 that it might be open to the interpretation that you
21 give it. But I think when you read it against the
22 background, when you read it against the background of
23 the travaux, the history, I think it is clear that it
24 is addressing the situation at the halfway stage, and
25 not the situation at the end of the case. And that the
1 applicable standard, therefore, could not be the
2 standard which is applied at the end of the case.
3 I think that would give rise to interminable
5 MR. SMITH: Yes, Your Honour. If I may
6 address some of those points as well as I may.
7 On the question of whether it puts the
8 Defence in an untenable position. I would too have the
9 test applied at this stage. I would suggest that the
10 Defence always, as a practical matter, but not as a
11 matter of law, of duty, has an obligation to put on a
12 case, and to assume that the Prosecution has gotten
13 over the goal line, when it has rested its case. It
14 would be entirely imprudent for a defendant to make any
15 other assumption; very risky for a defendant to make
16 any other assumption.
17 And a formulation that, in the absence of a
18 jury or other decision-maker, does not require the
19 Trial Chamber now to test the Prosecution's case
20 rested, made it its best, in our judgement relieves, in
21 a sense, the Prosecution of the burden of making the
22 best case it can the first time around, before it
23 closes its case. Again a question of efficiency.
24 And it furthermore throws on the Defence a
25 burden of going forward to put on a case when, in our
1 judgement, it should not have to do so; in a case in
2 which, if the Trial Chamber were to focus, it would
3 have concluded that the Defence was made -- rather,
4 that the Prosecution has not proved guilt beyond a
5 reasonable doubt now. And it does not so focus. It
6 forces the Defence to spend additional resources to go
7 through a trial, judicial resources to be expended in a
8 situation in which the Defence should have no burden to
9 go forward. Or it should have only the right to oppose
10 the Prosecution, but it is always on the Prosecution to
11 prove guilt beyond a reasonable doubt, and in an
12 adversary system, that opportunity is at the beginning
13 of the trial before the Prosecution rests. Because
14 after they have rested, their only right is to rebut
15 matters brought forward by the accused.
16 And our submission is that as an
17 International Court you are free from the corpus, to
18 reconsider the corpus of law, and should do so and make
19 your judgements about what you think is most efficient
20 and what you think is the fairest procedure,
21 considering the obligations on the Prosecution and the
22 rights of a defendant, and judicial efficiency, given
23 the type of cases you face and whatnot.
24 JUDGE MAY: Well, all that we would accept,
25 of course. And certainly we have in mind the length of
1 the case and our powers in relation to it, and the fact
2 that it's an international tribunal. But we still have
3 to apply the practical law.
4 If you are right, as Judge Robinson points
5 out, the effect of what you are doing would be that at
6 halftime in a case you would have the trier -- Trial
7 Chamber, if ruling against the Defence, effectively
8 ruling for a conviction. You therefore remove the
9 opportunity of submitting, as you would in front of the
10 magistrate that Judge Robinson mentioned, submitting at
11 the end of the case: Well, there is some evidence, but
12 it doesn't amount to anything, and therefore you can't
13 be satisfied beyond reasonable doubt.
14 You have removed that possibility, because
15 you've had the Trial Chamber rule at half-time that
16 they are satisfied beyond a reasonable doubt. So you
17 would effectively remove that argument from the
19 You would also put the Defence, as I said
20 earlier, in the position of having to call evidence if
21 it wanted to secure an acquittal. Now, is that,
22 really, if you think about it, in the Defence -- the
23 accused's interests to be boxed in in that way?
24 Because that's the effect of your test if we were to
25 apply it.
1 MR. SMITH: Your Honour, I would answer that
2 two ways. The first is that you may have removed the
3 opportunity at the end of the case of moving for a
4 judgement based solely on the Prosecution evidence, but
5 you gave the Defence that opportunity when the
6 Prosecution's evidence had closed. And at the end of
7 the case, the Defence will generally have put in
8 additional evidence, perhaps with rebuttal evidence,
9 and it is then a different question, because the Judges
10 are looking at a different corpus of evidence.
11 So while you remove the opportunity at the
12 end of the case to test solely only the basis of the
13 Prosecution's evidence, you have given it to the
14 Defence at the time it should be given, as a matter of
15 efficiency, when the Prosecution has rested and done
16 its best.
17 Secondly, as to the question whether there is
18 detriment to the Defence because there is an implicit
19 decision, after the Prosecution's requested if the
20 Defence fails under our test, that the evidence at that
21 stage is sufficient to convict, you've given the
22 Defence the opportunity to test it, and the Defence has
23 the right to put on additional evidence. And if the
24 Defence makes a request and it fails, you can be very
25 certain that the Defence will indeed put on additional
1 evidence because it will know, implicitly, that it must
2 do so.
3 I see no disadvantage to the Defence when you
4 give it the right to test to the Prosecution's case
5 once the Prosecution has taken its best shot, and then
6 the Defence has the right to go on.
7 JUDGE MAY: Thank you. Unless anybody else
8 has a point.
9 Yes, Judge Bennouna.
10 JUDGE BENNOUNA: [Interpretation] Mr. Smith,
11 one last question to you, please. I am not from a
12 common-law culture, so I will speak from a rather
13 different point of view.
14 As you have said, we are here, part of an
15 international tribunal, and as members of such a
16 tribunal, we have to take into account the different
17 sources of law which we might use in order to establish
18 our general principles of function, but we are an
19 international tribunal, and as you have said, we are
20 not linked by one system, rather, by another, and we
21 are not either bound by the decisions taken by another
22 Trial Chamber. Let me add that in passing. The only
23 thing that interests us is to know whether or not the
24 Appeals Chamber has given any decision which might be
25 of application in our particular trial or may be useful
1 as a decision to turn towards when need arises.
2 But there is something that bothers me
3 somewhat, and maybe it is something that arises from
4 the very way Rule 98 bis is written. Rule 98 bis and
5 the Jelisic decision do not say that the evidence put
6 forward are not sufficient to declare the culpability
7 of the accused. They say they can justify
8 condemnation -- a conviction, sustain a conviction.
9 There was something that was said by
10 Mr. Cerkez's Defence counsel in order to explain this
11 expression of "sustain a conviction". What does it mean
12 to sustain a conviction? It means something that can
13 be at the very basis of a possible conviction. And if
14 it is something that can sustain a possible conviction,
15 it means that there is some evidence that has been
16 presented that have enabled the Judges to go beyond the
17 prima facie test, elements of proof, evidence that can
18 be used as a reasonable basis for a possible
19 conviction, which is not to say that at this particular
20 stage of the procedure, that we find ourselves in the
21 position that allows ourselves to give to the evidence
22 its true weight.
23 Are we able, at this stage, to determine
24 whether or not that element of proof or that evidence
25 is indeed one that has to be considered? You have the
1 problem of the evidence, and then you have the problem
2 of the indicia of reliability that you can attribute to
3 that evidence. Of course there is some evidence, but
4 that's not enough. You have to further analyse the
5 evidence submitted to you. Is this evidence enough to
6 lead someone to say that an accused will be convicted
7 beyond all reasonable doubt? And that is the ultimate
8 test, the ultimate phase.
9 Why is that so? Well, because in all
10 conscience, in order to come to what is called in other
11 legal systems, in order to convince one's self
12 intimately of the guilt of an accused, you have to have
13 all the elements, and that includes the evidence
14 presented by the Defence. Only then can you establish
15 proof. Only then can you attribute to the various
16 evidence their true weight and estimate their
18 Now, of course you will tell us, but in the
19 adversarial system there is cross-examination of the
20 witnesses, and by cross-examination you have gathered a
21 number of elements and information, but we have not
22 gathered all the information we need, and this idea of
23 proof beyond a reasonable doubt implies that we have
24 all the information, all the data between our hands,
25 and that is the reason for which the system provides
1 for the Defence the possibility of taking the floor
2 once the Prosecution has put its case forward and has
3 tried to justify its allegations. The Defence is
4 allowed to give its interpretation of the facts.
5 This is the reason why what Judge Robinson
6 says to you is so interesting. The test to be applied
7 midway through the trial is not to be applied at the
8 end of the trial.
9 Up to now, I haven't heard you tell us in
10 what way there is a difference between the test that
11 you wish us to apply midway through and the test that
12 would be applied at the end of the procedure when there
13 should be a difference. Otherwise, the adversarial
14 system, which we're mentioning in this debate, would
15 not be satisfactorily constructed. It would not be a
16 reasonable system. If you can apply the same test
17 midway through the trial and at the end of the trial,
18 then one wonders what good it is to go to the very end
19 of the trial. At the end of the trial, one is supposed
20 to benefit from additional information, from additional
21 data which enables one to give better weight to the
22 evidence, elements which one does not benefit from
23 midway through the trial.
24 Now, in some legal systems, you have this
25 idea of prima facie. This is something that all
1 international legal specialists know of, and there have
2 been a lot of decisions taken, among others, by the
3 International Court of Justice, which explained this
4 prima facie test.
5 So in that particular sense, I do accept that
6 the evidence, as submitted, has to go beyond the prima
7 facie test in order for the Tribunal to take a decision
8 on the basis of Rule 98 bis. However, this is not
9 something that you can apply to the very end. That
10 does not interfere with the fact that you have to prove
11 facts beyond reasonable doubt, and this test of proof
12 beyond reasonable doubt marks the very end of the
13 process. Prima facie marks the beginning of the
14 process. Proof beyond reasonable doubt marks the end
15 of the process and the possible conviction of the
16 accused. But in between, you have to find a particular
17 test to apply, and this is at the very core of our
18 argument today.
19 This is what I mean to tell you, Mr. Smith.
20 This is what my reactions are to your arguments, and
21 maybe you have some additional remarks you would wish
22 to make.
23 MR. SMITH: Yes, Your Honour, let me see if I
24 can shed light on my views. Take the prima facie test
25 initially. There is a prima facie test established in
1 the Statute, Article 9, section 1, for the confirmation
2 of an indictment. I would argue that that test must be
3 at least as stringent as the reasonable court test,
4 reasonable Trial Chamber test, because it should not be
5 possible to confirm an indictment on the basis of facts
6 on which a reasonable Trial Chamber could not convict a
7 person, and it is on that basis that it seems to me
8 that is the stage at which this is the relevant
10 Now, let me address also the reasonable Trial
11 Chamber test itself. That test has three very
12 important characteristics. First, the question asked
13 necessarily is: Could a reasonable Trial Chamber
14 convict under a beyond the reasonable doubt test? So
15 the beyond reasonable doubt test is built in
16 necessarily, even to the test the Trial Chamber would
17 apply at this stage, even under the theory argued by
18 the Prosecution.
19 Secondly, under that very same test, evidence
20 must be weighed. Its credibility must be weighed,
21 because, of course, what is at issue is whether a
22 reasonable Trial Chamber could convict on the basis of
23 the evidence, and to make that judgement, you must
24 consider credibility and weight in the question of
25 whether they could convict under the beyond a
1 reasonable doubt test.
2 Third, having then formulated those first two
3 propositions in that way, there is no place at all for
4 arbitratory presumptions. Having formulated the test
5 as what a reasonable Trial Chamber would do, you have
6 built the deference into the standard from the outset,
7 and there is, therefore, no place for artificial
8 presumptions in favour of the Prosecution, et cetera.
9 So that, in effect, many of the difficulties
10 you consider you face with the rule we propose, I
11 submit you face already applying a reasonable Trial
12 Chamber standard at this point in time.
13 Now, on the question of midpoint versus end
14 point, and whether we are talking about the same test.
15 We are talking about the same test, because always the
16 guilt of the accused must be judged under the same
18 And the point here is, and the essential
19 point, I think it goes absolutely to the heart of the
20 issue, in an adversary proceeding where the Prosecution
21 has the burden of proving in guilt, entire burden of
22 proving guilt beyond a reasonable doubt, the half point
23 of an adversary proceeding can and should be in proper
24 cases the end point. And it is fundamentally different
25 from a non-adversary, civil law procedure in which a
1 judge simply says to himself: I want to listen to all
2 of the evidence, and I will direct the proceeding. And
3 I want all the evidence in front of me.
4 In an adversary process, all of the evidence
5 the Prosecution is entitled to present is in front of
6 the judges when they rest their case. That is at the
7 very heart of the adversary process. The Prosecution
8 has that burden. And that burden cannot and should not
9 be shifted to the defendant where there is no reason
10 for doing it. And where there is no jury, where the
11 judge, the same judge making the decision now will make
12 the decision at the end of the case, there is no good
13 reason or rationale.
14 And in our judgement, the long-term judicial
15 efficiency argues very strongly in testing the
16 Prosecution's case when they have finished and rested,
17 in putting forth their case. That is their
18 opportunity, to put on evidence about the guilt of the
19 accused. And after that they have no right, other than
20 one of rebuttal.
21 And the judge is in a fundamentally different
22 position than in a non-adversary proceeding. And I
23 will be glad to answer any further questions, Your
24 Honour, but, in short, those are the reasons why we
25 have argued the position we have.
1 JUDGE MAY: Thank you, Mr. Smith. I think
2 what would be most helpful now is this: I've seen the
3 outline of the argument. It seems to me that it covers
4 a great deal of the material which is already in the
5 brief, and it won't be of great assistance, but of
6 course we'll hear what argument you have. But let us
7 not waste too much time going over old matter.
8 What I think we would find to be -- what
9 would be of assistance is dealing with any counts on
10 which you say there is no evidence at all, if there are
11 any, or on which you say the evidence is not
12 sufficient, as the rule says, to convict.
13 We'll move away from the test for the
14 moment. If you'll deal with the factual elements.
15 MR. SAYERS: Yes, Your Honour. I take it
16 that the Trial Chamber does not want to hear a
17 rearticulation of our views or our submissions relating
18 to the principles of superior responsibility or command
19 responsibility under Section 7(3), and that's fine. I
20 think we've outlined those fully in our brief, and
21 there doesn't appear to be too much point in going over
22 them, other than to emphasise just this one point.
23 And that is that the general principles, I
24 think, are outlined in the Celebici case. And the
25 Court there stresses the importance of taking great
1 caution, when principles of superior responsibility, or
2 command responsibility, are stretched beyond the normal
3 confines of that doctrine, which is in the context of
4 the military chain of command. Where you have military
5 superiors, military subordinates, that's the context in
6 which the test was generated, and that's the context in
7 which it's most appropriately applied.
8 With respect to civilian alleged superiors,
9 though, very difficult questions are posed. And the
10 Celebici case makes it clear that the doctrine can
11 extend to civilian superiors, but only to the extent
12 that they exercise a degree of control over their
13 subordinates that is similar to that of military
15 And I cite paragraph 389 of the Celebici
17 THE INTERPRETER: Could the counsel please
18 slow down for the benefit of the interpreters. Thank
20 MR. SAYERS: And indeed the Court there
21 stressed that great care had to be taken, lest an
22 injustice be committed, in holding individuals
23 responsible for the acts of others in situations where
24 the link of control is absent or too remote. It's the
25 link of control that the Celebici case appropriately
2 Just to respond very briefly to one of the
3 issues raised by the Prosecution in this regard, Your
4 Honour, or Your Honours. The Prosecution cites to a
5 decision from the Rwanda Tribunal in the Kayishema and
6 Ruzindena case, saying that -- this is page 30 of the
7 Prosecution's brief: Powers of influence are
8 sufficient to impose superior responsibility. That's
9 it, says the Prosecution. If you are a man of
10 influence, of whatever undefined nature, that's enough
11 to make you potentially responsible under Section 6(3)
12 of the Rwanda Statute, which is the analog of
13 Section 7(3) of this Tribunal's Statute.
14 But we submit that the Kayishema case was
15 very careful to make clear the circumstances in which
16 superior responsibility applies to civilians. In
17 paragraph 216 of the Kayishema decision, the Trial
18 Chamber there said:
19 "The crucial question is not the civilian
20 status of the accused, but of the degree of authority
21 he exercised over his subordinates."
22 And in paragraph 222, the Court says it's
23 really a test of effective control, and then concludes
24 with paragraph 229 on this note:
25 "The principle of command responsibility must
1 only apply to those superiors who exercise effective
2 control over their subordinates. The material ability
3 to control the actions of subordinates is the
4 touchstone of individual responsibility under
5 Article 6(3) of the Rwanda Statute."
6 We think, without belabouring all of the
7 extensive discussion concerning the principles of
8 superior responsibility, that that really is the focus
9 of the question that the Court must ask itself: Has
10 the Prosecution in this case proven a case of superior
11 responsibility under Section 7(3) under whatever
12 standard the Trial Chamber decides is the appropriate
13 standard to apply under Rule 98 bis?
14 I will also point out that there is one gloss
15 on this rule that comes from the Aleksovski case, and
16 that is that -- in connection with the Aleksovski Trial
17 Chamber's observation, that a superior's powers to
18 impose punishment may not necessarily be essential in
19 considering whether a case of superior responsibility
20 has been made out.
21 And this was in the -- obviously in the
22 context of a prison commandant. The Aleksovski case
23 says we must also consider the possibility that reports
24 may be sufficient to provoke an investigation, reports
25 to the appropriate authorities, and that the superior
1 may be expected, under the appropriate circumstances,
2 to report crimes up the chain, if you like, of his
3 chain of civilian command to the appropriate
4 authorities, which will in all likelihood trigger an
5 investigation that might ultimately result in the
6 imposition of disciplinary or criminal measures or
8 But the context in which that case was
9 decided was not one where infractions or crimes were
10 known to the appropriate authorities. And it was the
11 obligation of the defendant Aleksovski in that case to
12 stop the process by making reports up either to the
13 military or the civilian chain of command. It's not
14 applicable to a situation where investigations are
15 already underway.
16 And I just say that as an introduction to
17 specifically the Ahmici allegations and the Stupni Do
18 allegations, where it is clear that investigations were
19 initiated by the HVO authorities. And I'll address
20 those in just a second.
21 I was going to go into the separation of
22 military authorities from civilian institutions. I
23 recall very clearly, Mr. President, you asked me a
24 question during Sir Martin Garrod's cross-examination
25 on the question of the testimony that he had given
1 regarding intertwining of military and civilian
2 institutions. And the question that was posed to me
3 was: Was it conceded that there was an intertwining
4 throughout the period of the amended indictment of
5 military and civilian institutions? And the response
6 that I gave was it was not conceded because it's not a
8 It's absolutely clear that the -- after the
9 declaration of an imminent state of a threat of war by
10 the RBiH on April the 8th of 1992, the entire country
11 was in a state of confusion; the Croat political and
12 military authorities were in a complete state of
13 confusion. There was no distinct Croat -- Bosnian
14 Croat military. The political institutions and the
15 military institutions were all mixed up into one. And
16 I think Dr. Ribicic was helpful in explaining precisely
17 how the Bosnian Croats slowly organised themselves over
18 the succeeding seven months or so. And he identified
19 two particular points in time.
20 The first was July the 3rd, of 1992, when the
21 HZ HB authorities met. They passed a number of
22 decrees. This was the first time that a decree on the
23 armed forces was passed. But it's also significant
24 that the -- there was an amended decision relating to
25 the basic composition of the HZ HB which created, the
1 Trial Chamber will recall, the office of president.
2 The president, of course, was the supreme commander of
3 the armed forces under Article 29.
4 That was the point at which the civilian
5 authorities started to separate from the military
6 authorities, and that was a process that continued over
7 the course of the next few months. And it reached its
8 epiphany in October, on October the 17th of 1992, after
9 all of the institutions of the HVO government had been
10 established, the Prime Minister had been appointed, the
11 president of the HVO government, Dr. Jadranko Prlic,
12 all of the departments were established, including the
13 Department of Defence. And detailed roles of military
14 discipline had been adopted, the district military
15 Prosecutor's office had been established.
16 And Dr. Ribicic conceded, as he had to, that
17 at that time the civilian government had established
18 its organs and was operating. And the military
19 institutions had been established and were
20 appropriately governed and made subject to a separate
21 code of disciplinary procedures.
22 And I think the evidence is absolutely clear
23 from the Prosecution's own evidence that the Central
24 Bosnia Operative Zone was established and fully
25 operational under Colonel Blaskic's dominion by
1 November the 11th, 1992, as we stated in our brief.
2 By that time, it's absolutely clear that the
3 civilian and the military institutions had separated.
4 And I think that's important, when you take a
5 look at the evidence of the chain of command in this
6 case, a subject which we repeatedly revisited in
7 cross-examination, and I think --
8 JUDGE MAY: I don't want to interrupt you,
9 Mr. Sayers, but we must have some regard to the clock.
10 This is a matter which you rehearsed extensively in
11 your brief. Unless there is a particular point in
12 response to the Prosecution, I think you can take it
13 that we have your submissions on that topic.
14 MR. SAYERS: Yes. There is only one point
15 that I would like to make or add in respect to our
16 position that Mr. Kordic was not in the military chain
17 of command.
18 We think that the evidence is virtually
19 uncontroverted that he was not in the chain of
20 command. And the only evidence, and I'll address this
21 particularly when we get to the claims made regarding
22 Busovaca in January of 1993, the only evidence that
23 puts Mr. Kordic specifically in a military chain of
24 command is just -- is purely opinion evidence. And it
25 comes from Lieutenant-Colonel Stewart. And he gave an
1 opinion to the effect that Mr. Kordic, I believe, was
2 the military commander in Busovaca, based upon a
3 meeting that he had had with Mr. Kordic on February the
4 3rd of 1993.
5 But we also would like to address the Court's
6 attention to Brigadier Duncan's testimony on this
7 subject. He stated, on page 10465 of his testimony:
8 "As for Blaskic's status as commander, it
9 was quite clear to me he was very much the commander,"
10 and he articulated why. "He had a large headquarters,
11 well-equipped staff."
12 JUDGE MAY: There is no need to go over that
13 again. I think we have those submissions.
14 MR. SAYERS: All right. I'll pass to the
15 particular crimes section. I think that's what you've
16 addressed my attention to, Mr. President.
17 Are there any charges upon which there is
18 absolutely no evidence, is the inquiry. Yes. Count 1
19 makes a claim of -- a generalised claim of persecution
20 throughout the HZ HB/HR HB and the municipality of
21 Zenica in the territory of Bosnia-Herzegovina.
22 Now, I'll defer to Mr. Smith, who's going to
23 be handling the persecution claims made in Count 1, but
24 if I may, just by way of brief introduction, say this:
25 The amended indictment specifically charges that the
1 HZ HB, the Croatian Community of Herceg-Bosna,
2 consisted initially of 30, 3-0 municipalities and then
3 one additional municipality, Zepca, was added
4 subsequently to the founding of the HZ HB on November
5 the 18th, 1991. As to 24 of those municipalities,
6 there is quite simply no evidence of any persecution:
7 Jajce, Skender Vakuf, Kakanj, Kotor Varos,
8 Tomislavgrad, to name just a few.
9 Insofar as other municipalities are
10 concerned, let me touch upon the following: Travnik.
11 There is no evidence of any persecution of Bosnian
12 Muslims by Bosnian Croats in Travnik, Mr. President,
13 and the other Judges of the Trial Chamber. Major Hay,
14 and Colonel Morsink from BritBat and the ECMM basically
15 covered the entire area from April through October of
16 1993 and neither of them ever saw Mr. Kordic in
18 The only evidence of a particular problem in
19 Travnik occurs on April the 12th, 1993, when some
20 flags, I believe, were raised, or April the 8th to the
21 12th when flags were raised in Travnik, and they were
22 promptly torn down by members of the 7th Muslim Brigade
23 and set on fire and then there was a fight that
25 JUDGE ROBINSON: Mr. Sayers, are you dealing
1 with the specific issue or is Mr. Smith going to deal
2 with this, because I would prefer to hear the listing
3 of the 24 municipalities, the specific counts in which
4 you say there is no evidence, so that when the
5 Prosecution comes to reply, they can reply specifically
6 to that.
7 MR. SAYERS: Let me first --
8 JUDGE ROBINSON: If you just give us the
10 MR. SAYERS: Yes. The only municipalities as
11 to which evidence has been put on, I think, are these:
12 Travnik municipality; Kresevo, through Witness E;
13 Fojnica, through witness Stjepan Tuka; and then the
14 principal municipalities that are concerned in the
15 amended indictment, Vitez, Novi Travnik, Busovaca,
16 Zepca, Vares, and Kiseljak. As to all other
17 municipalities that were in the HZ HB, there is no
18 evidence. Therefore, we would submit to the Trial
19 Chamber that to the extent that the amended indictment
20 asserts that there was a persecution case made out in
21 those 24 municipalities as to which no evidence has
22 been put on, then those claims have to be dismissed at
23 this stage.
24 As I say, I'll leave the specifics to
25 Mr. Smith, but let me just address three particular
1 municipalities, if I may, Travnik, Kresevo, and
3 I've already made the points that I wanted to
4 make with respect to Travnik. Let me just add to that
5 that according to the testimony of Witness AA, he was
6 called to address the particular problems that occurred
7 in the outbreak of fighting on April the 12th, and the
8 person with whom he dealt was not Mr. Kordic at all
9 but, rather, Mr. Valenta.
10 Insofar as the claims of persecution are made
11 regarding Travnik, they would appear to be completely
12 misplaced in view of the overwhelming, indeed
13 uncontroverted evidence of persecution going the other
14 way with the June 8th offensive launched by the ABiH
15 that resulted in not only 20.000 displaced persons,
16 according to the testimony of Witness AD, but also
17 atrocities in Maljina, Cukle, and Mileticic, according
18 to the evidence of Mr. Bower.
19 Turning to Kresevo, there is no evidence
20 connecting Mr. Kordic to any of the events in Kresevo,
21 Your Honours. No one suggests that he had anything to
22 do with any of the events there and, indeed, Witness E
23 never saw Mr. Kordic in Kresevo at any time, and
24 testified that as far as he was aware, he was the
25 vice-president of the HDZ and that's all; no military
1 capacity whatsoever. But that's the only evidence, I
2 believe I'm correct in saying, presented by the
3 Prosecution relating to Kresevo through Witness E.
4 And in connection with the municipality of
5 Fojnica, there are no crimes alleged, I believe,
6 against Muslims before Muslims launched their surprise
7 offensive on July 2nd, 1993. In fact, the evidence
8 shows that if there was persecution and discrimination,
9 it was discriminations by Bosnian Muslims against
10 Bosnian Croats in that jurisdiction. And I would
11 simply refer the Court's attention to the October the
12 10th, 1993 special report prepared by the ECMM that
13 states precisely that. It's Exhibit 2201/1 at tab 10.
14 Seven thousand people were expelled from
15 their homes, all Bosnian Croats. Only about 150 were
16 left in the municipality. Persecution and
17 discrimination was noted in the report, along with the
18 destruction of Croat villages and the looting and
19 pillaging of Croat houses, but no evidence or no
20 allegations of crimes against Muslims in the
21 municipality, and certainly, of course, no evidence
22 that Mr. Kordic would have had anything to do with such
23 crimes even if there were such, because he was only
24 seen there, according to Mr. Tuka, once, at a soccer
1 And with that, with the Court's permission,
2 unless it has any questions for me, I'll just hand over
3 the persecution theory to Mr. Smith.
4 JUDGE ROBINSON: Thank you.
5 MR. SMITH: May it please Your Honours. Let
6 me address first but very briefly the Article 7(1)
7 questions, and I would remind Your Honours or urge that
8 on 7(1), as elsewhere, criminal laws must be narrowly
9 construed, and that in considering the question of
10 nullum crimen sine lege, one must consider the
11 interpretation one is giving to the law, not just the
12 question of whether murder was obviously a crime in
13 1991 or 1992. The question is: Did the accused have a
14 fair notice of the types of interpretations now being
15 made on, as it is said, aetiological or from purposive
16 analysis basis, in US parlance, as you are considering
17 the law to apply?
18 Also there are three situations involved in
19 this case that give reason for care. First, one is
20 dealing with theories of indirect liability; secondly,
21 one is dealing in most cases with circumstantial
22 evidence and inferences; and thirdly, one is dealing,
23 in most cases, in many cases, with hearsay evidence.
24 JUDGE BENNOUNA: [Interpretation] Allow me to
25 interrupt you, Mr. Smith. If I've understood you
1 well -- I'm listening to you in English, so I'm not
2 always sure I've got you right -- are you basically
3 telling us that the principle of nullum crimen sine
4 lege means that not only the rule exists before the
5 perpetration of a crime but also that the
6 interpretation of the rule can only be applied in a
7 rather narrow sense, at the moment the crime is
8 perpetrated. You speak of the rule but also the
9 interpretation of the rule. You mentioned this
10 particular rule of the law but also the interpretation
11 of this rule of the law, and you tell us that the
12 interpretation that is made of this rule is the one
13 that is in application at the moment when the crime is
14 committed. Is that what you're telling? Because that
15 being the case, I would ask for more explanations.
16 MR. SMITH: I have spoken --
17 JUDGE BENNOUNA: [Interpretation] I'd like to
18 follow your logic and your line of thought, because I'm
19 not following right now.
20 MR. SMITH: Indeed, and that is entirely my
21 fault, Your Honour.
22 What I intended to say was that in applying
23 the rule of nullum crimen sine lege, one must apply it
24 not only to questions as to substantive law, as to
25 whether this substantive law was the law at the time
1 when the action took place in 1992, 1993, 1994, but one
2 must also consider that same principle when considering
3 the expansive interpretations of an existing law that
4 was in effect at that time, that one is now, at a later
5 time, making or engaging in.
6 I'm saying the question of notice, given the
7 lack of maturity, if you like, of the substantive
8 humanitarian and criminal law being applied by this
9 Tribunal for the first time since World War II, as it
10 is working out the principles, giving them flesh,
11 giving them rationales and reason and extruding from
12 the basic propositions what the law really is and
13 really means, you must have firmly in mind the question
14 of the notice to the accused that the law in that form
15 and as so interpreted would have been apparent to him
16 had, in the middle of a civil war, had chosen and had
17 the opportunity to consult a lawyer prior to taking his
19 JUDGE MAY: Well, now, how does this relate
20 to whether there's a sufficiency of relevance under
21 Rule 98 bis?
22 MR. SMITH: Because, Your Honour, the
23 sufficiency of the evidence must be tested against the
24 applicable substantive law, and we have argued the
25 applicable substantive law as to Article 7(1), 7(3) in
1 our prior trial briefs, as to Articles 2, 3, and 5. So
2 that in order to make a determination about the
3 sufficiency of the evidence, you must have in mind some
4 view of the law to which you are applying the
5 evidence. We have argued and the Prosecution has
6 argued about the applicable law, and I'm simply
7 articulating a general principle that I think needs to
8 be borne in mind when you consider the legal issues.
9 Let me, as to 7(1), say only further that it
10 is our view that all of the offences charged under 7(1)
11 fail to come up even to a reasonable Trial Chamber test
12 insofar as sufficiency of the evidence is concerned,
13 but I am not now making an argument that there is no
14 evidence at all insofar as they are concerned.
15 Let me turn to prosecution -- persecution,
16 sorry, and make four simple points. The first relates
17 to the law to be applied on the question of mens rea,
18 and it is the mens rea point that we have raised in
19 this motion at this stage.
20 The definition of mens rea for persecution
21 stems, in effect, from the definition of a
22 discriminatory act found in the Kupreskic Trial
23 Chamber, and must be uppermost in Your Honours' minds.
24 That mens rea requirement, as is said there, is higher
25 than that for ordinary crimes against humanity, and the
1 inquiry is whether the evidence in this case shows
2 beyond a reasonable doubt a desire to deprive a defined
3 group of its fundamental rights -- and I'll come back
4 to this in a moment -- as laid down in international
5 customary or treaty law so as to remove the persons in
6 that group from the society in which they live or even
7 from humanity itself. That, in our judgement, is a
8 very high standard indeed.
9 Let me deal then with three points raised in
10 the Prosecution brief on the question of persecution.
11 First, relating to the question whether
12 Mr. Kordic ever personally discriminated. The
13 Prosecution in its brief mentions a comment related by
14 the witness -- a witness that Mr. Kordic had at one
15 point said that -- had uttered the phrase "culturally
16 inferior Muslim culture." And it is this point that I
17 raised the definition in particular about fundamental
18 rights and removing persons from society in which they
19 live and humanity itself.
20 I think, if I were to ask most Europeans
21 whether they thought American culture was culturally
22 inferior to European culture, virtually to a man and a
23 woman, they would say it was. And I submit to Your
24 Honours that this is not the sort of -- has not the
25 sort of gravatus that one needs in terms of evidence of
1 persecutory intent. In addition to that comment, there
2 were two other issues raised in the Prosecution brief.
3 One is that the accused referred in his
4 public remarks to Mujahedin and Muslim extremists. And
5 I would submit to Your Honours that on the record of
6 this case, that constitutes a simple statement of
8 The third point that was raised within this
9 general setting of whether the defendant personally
10 discriminated, is his articulation of a political
11 concern about the development or the danger of an
12 Islamist state in Bosnia. And I mention again that as
13 one is dealing with issues of speech and with issues of
14 political speech and political association, one is in a
15 very delicate area.
16 I simply refer Your Honours to the remarks by
17 a Muslim member of the BiH presidency that were played
18 on a videotape for Your Honours, in which Mr. Durakovic
19 said that he was aware that the presidency of the BiH,
20 the figures there, and he was a member of that, a
21 Muslim member, were only figureheads. That the
22 presidency is not where the real decisions were made,
23 and it was not the real decision centre of power.
24 The real decisions, he said, relevant to
25 military questions, were made independently within a
1 smaller staff headed by the president. And I quote
3 "When things became a lot worse, when an
4 almost ethnically pure BiH army was being established,
5 when religion began to be used for political purposes,
6 when they purged the BiH army of so-called
7 inappropriate individuals, people who were not members
8 of the Party of Democratic Action, people who did not
9 use a shalom greeting, and people who did not try to
10 present themselves falsely as new religious people, we
11 sent ..."
12 This is a member of the presidency speaking,
13 a Muslim member.
14 "... we sent that famous letter signed by
15 five members of the presidency in which we expressed
16 our opinions about the politicisation of the army and
17 the instrumentalisation of the religion for political
19 So again I would simply say that these
20 statements about political concerns for the nature of
21 the way in which the Bosnian government and its state
22 was developing, and as to Mujahedin and Muslim
23 extremists, are not unjustified in political discourse
24 on the basis of this record.
25 Now, the second --
1 JUDGE MAY: Before you come to that point,
2 it's time for an adjournment.
3 The other point may be this. That, of
4 course, one could look at an accused's statements or
5 matters attributed to him to determine whether there is
6 an intent, a persecutory intent, but one can also, it
7 may be said, infer an intent from the actions of an
8 accused, depending on what they are. But we'll return.
9 I would be grateful if you could, Mr. Smith,
10 Mr. Sayers, have in mind the clock. We want to hear
11 the submissions today, if at all possible, and
12 Mr. Cerkez's counsel, and also the Prosecution, must
13 have time to reply by this afternoon.
14 Very well. Half an hour.
15 --- Recess taken at 11.05 a.m.
16 --- On resuming at 11.38 a.m.
17 JUDGE MAY: Yes, Mr. Smith.
18 MR. SMITH: Yes, Your Honour. We have
19 pending, I think, a question about inferences from what
20 the defendant did on the question of discriminatory
21 intent. That is directly to the point. In dealing
22 with persecution and the related issue of instigation,
23 there are really three simple inquiries: What did the
24 accused do; what did the accused say; and did the
25 accused encourage anyone by what he did or said?
1 We have addressed the question of inferences
2 from what the accused did in our brief. And I would
3 point Your Honour to a discussion of a period, 1991 and
4 early 1992, and the story of the political exercises
5 going on in the HDZ-BiH as it led up to the
7 Secondly, we have discussed what the
8 defendant did in participating in the creation and
9 execution of Bosnian Croat institutions.
10 That part of the brief we have addressed the
11 question of whether there is any de jure discrimination
12 in those institutions, and whether there is any de
13 facto discrimination from the conduct involved during
14 that period with those institutions. We, on de facto,
15 have addressed the meeting of the municipalities on
16 September 22, 1992; the second General Assembly of the
17 HDZ BiH on December 14th; and the alleged ultimatums in
18 the spring of 1993, the winter and spring of 1993.
19 Finally, in terms of the conduct of the
20 accused, we have addressed the question of
21 participation generally in the civil war between the
22 Muslim community and the Croat community. I will not
23 go over those, only simply point you to those parts of
24 the brief, and end this part of -- first part of my
25 discussion of persecution by noting that on -- that
1 deals with the question of what he did as Your Honour
2 has raised, but there is simply no proof there, and
3 there is no proof as to what he said and what he
4 encouraged anyone to do of any evidence of persecution;
5 simply no statements in which he is beating on the
6 table, taking intemperate positions not appropriate in
7 their context, in blaming people. He is calmly
8 considering. If you will read the videotape material
9 that we have quoted in the brief, the excerpt we have
10 placed in the annex, we have tried to place the
11 accused's own words in front of the Trial Chamber so
12 that you may make your own decisions.
13 There is, of course, hearsay evidence, not
14 corroborated, that other things were said. The best
15 example there, I think, is Witness AQ, who when
16 questioned said no. The press conference for which we
17 have the transcript and for which Your Honours know
18 exactly what the accused said, that was the source of
19 her recollections of a rather more embroidered version
20 of what he said.
21 Let me then pass on to the second issue I
22 wish to address concerning matters raised in the
23 Prosecution brief related to persecution, and that is
24 this notion that they advance in relation to the
25 meeting on December 27th in Zagreb with President
1 Tudjman, that there was an expectation arising from
2 that meeting that there would be objections by the
3 Muslim community to the course of action, negotiation
4 for option 3 as a political choice that President
5 Tudjman articulated there.
6 I might first note that we have argued, and I
7 believe in their brief at 62, the Prosecution
8 effectively concedes that whatever you think about the
9 discussion at that 27 December meeting, there were no
10 instructions to use force to accomplish the objectives
11 settled upon. There was, rather, a political decision
12 and direction to negotiate both with the Serbs and with
13 the Muslim community over the question of demarcation,
14 as it is put there.
15 And, of course, there were people who said
16 that the Muslims may object. There was, therefore,
17 from that point of view, an expectation of objection.
18 Any time one goes into a negotiation, one expects the
19 other side may object, but that's what a negotiation is
20 all about. That's what makes a negotiation. You don't
21 pull your punch and not make your point and argue your
22 case in a negotiation simply because there may be an
23 objection. And there were, as the Prosecution
24 concedes, no instructions to use force.
25 Indeed, negotiations were had. The
1 negotiations did not succeed. The Bosnian Croats were
2 then faced with the need for deciding whether to vote
3 for independence with a referendum question that did
4 not resolve, before that vote as they wished, the
5 question of the internal organisation and
6 constitutional structure of the new nation and which
7 did not give them protection, in advance, of the
8 traditional constituent and sovereign rights that they
9 enjoyed as a nation, as that term is used in Yugoslav
10 constitutional law. And what did they do? They did
11 not opt out the way the Serbs did and act by force.
12 They negotiated as hard as they could. They posed the
13 Livno question. They tried to persuade the Muslim
14 community to accept that formulation of the referendum
15 question. They failed again, and they finally decided,
16 when the chips were down, to vote. They did vote, and
17 it is those votes and only those votes that carried the
18 referendum to the level necessary for the independence
19 of BiH.
20 And as for the defendant, he had his
21 political say at that point on various issues. When
22 the decision was made politically, he signed the
23 petition in Busovaca, along with his wife and
24 neighbours, in favour of a sovereign BiH. The
25 referendum then passed, and partition or annexation was
1 a dead letter after that point.
2 Now, the third issue I'd like to deal with is
3 the argument by the Prosecution that the Bosnian Croat
4 institutions constituted monoethnic entities with
5 monoethnic policy, in a way discriminatory against the
6 Muslim community.
7 First point, of course, is these were
8 temporary wartime institutions, not intended to last
9 beyond a transition to peacetime entities. They were
10 legitimate forms of self-organisation for survival and
11 created out of necessity. We've argued that in the
12 brief and I won't go further on it.
13 I think it is most useful simply to recite
14 the conclusions of the Prosecution's own expert
15 witness, who concluded, when asked whether there had
16 been discriminatory legislation by the Bosnian Croat
17 institutions, no, or very few explicitly discriminatory
18 provisions in the HZ HB enactments.
19 I also point to the April 8th, 1992 founding
20 decision on the military HVO, which expressly provided
21 for the protection of all people, not simply the
22 Croats. And Dr. Ribicic conceded this.
23 I mentioned also that citizens were defined
24 under the law being developed and applied in the HZ HB
25 as citizens of Bosnia and Herzegovina, not citizens of
1 Herceg-Bosna, not citizens of Croatia, reflecting again
2 always the intent that these institutions function
3 within the entity BiH, sovereign BiH.
4 And there was a decree on the treatment of
5 foreigners during time of war, in which all citizens of
6 BiH were treated equally. He agreed, Dr. Ribicic did,
7 that any citizen of BiH could be a judge in the court
8 system, and indeed that there likely were judges as
9 there were, who were Muslim.
10 He said that -- he conceded that during the
11 second General Assembly in Mostar on November 14th,
12 Mr. Boban himself said that the HZ HB is the state not
13 only of the Croats who live there but every other
14 people as well, and the question of the plight of the
15 Muslims was raised there, and we quote that material in
16 our brief.
17 Dr. Ribicic also agreed that there was a long
18 list of very specific human rights articulated and
19 enacted by the HR HB at that stage in the evolution and
20 development of the government institutions. That was,
21 in effect, the same list found in the Owen-Stoltenberg
22 Plan, because, of course, the HR HB was intended to
23 implement, as an internal republic, the proposals in
24 that plan.
25 Finally, Dr. Ribicic conceded that the
1 founding decision of the HR HB itself provided that the
2 authority in the republic was derived from the people
3 as a community of free and equal citizens, not solely
4 from the Croat people.
5 Your Honour, it seems to us, and we submit,
6 that while there may have been in the leadership a
7 predominance of Croats in the HZ HB, that to take a
8 situation in which there is an entity with the
9 leadership of a particular political persuasion or
10 racial persuasion or religious persuasion or even,
11 although it's not listed in the Statute, ethnic
12 persuasion, and to argue from that, even though there
13 were other members of other -- members of other groups
14 involved at various levels, either in this case in the
15 military or in the administration -- in our brief, for
16 example, in Busovaca, articulates exactly how many
17 Muslims were in the administration all the way up
18 through December of 1992. To argue that that is a
19 monoethnic entity and is somehow depriving other groups
20 of their rights is, in effect, like arguing that when
21 in the United States the democratic administration
22 takes over, and a lot of the top jobs are then
23 allocated to democrats, or in the UK when one party
24 takes over the parliament and thus takes over the
25 government but other people are still involved at
1 various levels, that those organisations are not
2 monoethnic, and that in the context of temporary
3 wartime conditions, total chaos, people trying to
4 organise themselves to deal with the very basic
5 necessities of safety and security for their families
6 and reaching out, as we have shown in our brief, to the
7 Muslim community, that when negotiations, for example,
8 in Busovaca, in the summer of 1992, after the Kaonik
9 barracks incident in which the Croats were reaching out
10 to the Muslim community in the surrounding
11 municipalities, and the Croats repeated -- they got
12 started, they repeated their invitations, and at some
13 point the Muslim representatives were instructed to
14 cease dealing with the Croats.
15 I would simply suggest to you that in context
16 the actions of these institutions, and of the thousands
17 of people who in good faith entered into them and
18 worked in them, as did the accused, Mr. Kordic, this is
19 not discriminatory or persecutory action. This is
20 self-organisation, defensive action, coping with a very
21 difficult reality, not of their own making. And for
22 the reasons I articulated, de jure, de facto, the way
23 these institutions actually operated, they did a
24 remarkable job, under the circumstances, in trying to
25 deal with the tensions and difficulties between groups,
1 as groups in time of danger tend each to circle the
2 wagon amongst people they know.
3 And I turn the podium back over briefly to my
4 colleague, Mr. Sayers.
5 JUDGE MAY: Mr. Sayers, just going back to
6 Count 1, and your submission in relation to the 24
7 municipalities. What Count 1 refers to, paragraph 36,
8 refers to widespread systematic persecutions of Bosnian
9 Muslim civilians, et cetera, throughout the HZ HB. And
10 you identify -- you say eight municipalities on which
11 there was possibly some evidence, although you question
12 whether there is any evidence, about Fojnica. But
13 given that the count is worded in the way that it is
14 throughout the HZ HB, and in the absence of any -- in
15 the absence of any application to amend the indictment,
16 how would you ask us to proceed, even if we were --
17 even if we thought you were right, there was something
18 in your submission that there was no evidence about the
19 other municipalities. In practical terms, how is that
20 to be done?
21 MR. SAYERS: Well, that's, if I may say, an
22 excellent question. And it's something that puts us in
23 something of a quandary, if I may say so,
24 Mr. President, because, unless the Court declares that
25 there is no evidence with respect to the 24
1 municipalities that have not been the subject of any
2 evidence at all, unless the Court declares that we are
3 not required to put on any evidence with respect to
4 them, the Court can well see that the scope of our case
5 is virtually unbounded.
6 I mean, we've got an allegation here of
7 crimes throughout all of these municipalities, and
8 unless the Court says: Well, we only have evidence as
9 to, for example, nine of them, you don't have to put on
10 evidence with respect to the others, then we are going
11 to have to do that.
12 And I would suggest that that would exactly
13 be an appropriate function of this motion for judgement
14 of acquittal at this stage of the case. For the Court
15 to say, or to use it, if you will, as a tool to tell us
16 what the Trial Chamber sees as genuinely in dispute in
17 this case, and what is not.
18 Because if we can have -- well, I mean, I
19 think the point is obvious. If we have to put on
20 evidence with respect to all of those municipalities,
21 we are looking at a considerable amount of evidence.
22 If we don't, then we can do what we have
23 previously articulated to the Trial Chamber we hoped to
24 do, and put on a streamlined case that's directed to
25 the specific points that the Trial Chamber considers to
1 be genuinely in dispute as having been made out by
2 whatever standard the Trial Chamber considers is
3 applicable on this -- on this motion.
4 Now, with respect to Travnik, we would submit
5 there is no evidence of persecution against Bosnian
6 Muslims by Bosnian Croats, but also no connection that
7 Mr. Kordic has with anything that went on in Travnik.
8 And the witnesses testimony, and the documents in this
9 case establish that, we think, beyond apparent venture
10 of a doubt.
11 The same is true of Kresevo and the same is
12 true of Fojnica. We do concede that the evidence is
13 concentrated upon the six municipalities that I
15 And with the Trial Chamber's permission, I
16 would like to turn to those six municipalities, if I
17 may, to identify what we see as being the points that
18 are really in dispute, and those which are not.
19 Let me just use as an example an evocative
20 example -- an evocative subject. The subject of
22 There isn't any question that crimes occurred
23 in Ahmici, and we've never contended that there is any
24 argument that crimes did not occur there. They did.
25 The point is: Did Mr. Kordic have any connection with
1 them? And I'll argue in just a second, if the Court
2 permits me, that there isn't.
3 The same is true, even more so, with respect
4 to the crimes that occurred in Stupni Do, which are
5 gone into at great length in our brief.
6 But just to touch upon a few subjects before
7 I get into those more weighty ones. For example, the
8 allegations regarding Rotilj. The Prosecution has put
9 on some evidence that there were some people killed
10 there. The Prosecution has put on some evidence that
11 there were people interned there. But the Prosecution
12 hasn't put on any evidence that Mr. Kordic had anything
13 to do with those events, even if they could be
14 considered to be crimes.
15 In fact, the testimony of Witness AD, and I
16 think it's pretty much uncontroverted, is that one
17 couldn't even travel from Busovaca to the Kiseljak
18 municipality where Rotilj is located after the ABiH had
19 established hegemony over the main supply route from
20 Kacuni to Bilalovac. And the evidence is absolutely
21 uncontroverted that that occurred on January the 20th.
22 It's in a milinfosum that's recorded on that same day
24 And every witness has agreed that the ABiH
25 had effectively insulated the Vitez-Busovaca enclave or
1 pocket from the Kiseljak pocket, and there simply is
2 nothing to connect anything that went on in Rotilj with
3 Mr. Kordic.
4 And just one other point of detail on that.
5 The evidence put on from Colonel Morsink establishes
6 that Rotilj was actually defended. In fact, he
7 interviewed the HVO commander who had led the assault,
8 Mirko Redzo, and testified to that at page 8219 of the
9 transcript. He testified that he was told that fire
10 was returned from the village by ABiH units there, one
11 of his soldiers was wounded. And he testified at 8221,
12 he had no reason to doubt Redzo's story. And indeed
13 the civilians that he interviewed in the village
14 thereafter didn't contest Mr. Redzo's story either.
15 So with respect to the allegations regarding
16 Rotilj, there is nothing to connect Mr. Kordic with any
17 of them.
18 And the same is true of another discrete
19 incident which has received quite a bit of attention.
20 Tulica in counts 7 through 13, and 37 through 39. The
21 Trial Chamber will recall from the maps that Tulica is
22 at the southern-most tip of the Kiseljak pocket, and,
23 in fact, right on the front lines with the Bosnian-Serb
25 To use the precise phraseology of Section
1 7(3), Your Honours, there is no proof in this case, no
2 evidence at all, that Mr. Kordic knew of the events at
3 Tulica or had reason to know of the events that had
4 occurred there.
5 But more importantly, and we would just rely
6 upon the testimony of Brigadier Winfield Hayes for this
7 particular point, he being the chief of staff of
8 UNPROFOR, having his headquarters in Kiseljak, spending
9 six months there, and that six months encompassed the
10 time of the fighting in Tulica and in the Kiseljak
11 municipality generally, he was asked whether he ever
12 saw Mr. Kordic there, and he said no. He was asked
13 whether Mr. Kordic had any influence in Kiseljak at
14 all, as far as he was aware, and he said no. And he
15 certainly wouldn't go to Mr. Kordic to resolve any
16 short-term or even long-term problem that arose in the
17 municipality of Kiseljak.
18 So in the absence of knowledge of the crimes
19 that had occurred in Tulica or a reason to know, to
20 recite the language of Section 7(3) of the Tribunal
21 Statute, there couldn't be any allegation of superior
22 responsibility in the sense of a failure to punish, I
23 think, under the facts of this case, even if Mr. Kordic
24 had any kind of military power to punish the combatants
25 who engaged in the Tulica operation. And the evidence
1 is absolutely clear that he did not.
2 In fact, the evidence is replete with
3 examples of Colonel Blaskic imposing disciplinary
4 sanctions. The last witness who testified in this case
5 gave an example of that himself, when Colonel Blaskic
6 imposed a five per cent pay penalty upon the 4th
7 battalion of military police for disciplinary
8 infractions generally.
9 And he also gave particular examples of the
10 operation of the military discipline, Your Honours.
11 Two separate disciplinary infractions he had committed
12 which were duly punished by his superior officer, the
13 commander of the 1st company of the 4th battalion of
14 military police, Vladmir Santic. And he testified to
16 Now, let me turn to one other discrete
17 municipality, as to which there is, as -- in a familiar
18 pattern, evidence that crimes occurred in Zepce, but no
19 evidence that Mr. Kordic was ever there or had the
20 remotest connection with them.
21 The only crimes, I believe, that are charged
22 in the amended indictment, Your Honours, with respect
23 to Zepce, are counts 21 through 28 that concerns
24 imprisonment and inhuman treatment of persons.
25 But the testimony from Colonel Stutt couldn't
1 be clearer. Mr. Kordic's influence did not extend to
2 Zepce. That was, to use his argot, Ivo Lozancic
3 territory. And his memorandum, right at the --
4 actually, after the indictment period, the memorandum
5 that we showed to him and introduced into evidence as
6 D193/1, the July 13 memorandum, describes Lozancic as a
7 political rival of Mr. Kordic. Quite simply, there is
8 no evidence, let alone beyond a reasonable doubt, no
9 evidence that Mr. Kordic had the slightest influence in
11 And the only two witnesses from Zepce who
12 testified, Witness F on June the 10th of last year, and
13 Witness AH on February the 17th of this year, both
14 testified that they never even saw him in Zepce. And
15 didn't try to make the contention that he had any kind
16 of influence, let alone pervasive influence, or that he
17 had uttered any kind of remarks that would have led to
18 the detention crimes that are alleged in Zepce.
19 There is simply no evidence of his ordering,
20 instigating, planning, committing or aiding and
21 abetting, any crimes there, or that anyone who may have
22 committed crimes there was his subordinate, civilian or
24 The next subject I would like to address, and
25 it's addressed in full in our brief, and I will just
1 touch on it, is the Zenica shelling incident. That's,
2 I think, charged. It appears to be charged in
3 paragraph 36 of Count 1, because that's the persecution
4 count, and it mentions persecution in Zenica. I am
5 just at a loss to understand what the persecution of
6 Bosnian Muslims might be in Zenica. The evidence is
7 absolutely clear that the Bosnian Croats were basically
8 cleaned out of many villages in Zenica in the April
9 fighting, and that the two brigades, the Jure Francetic
10 Brigade and the Zenica Brigade that were located there
11 before the April fighting were eliminated by the
12 Bosnian Muslim forces in that city. And the city
13 remained for the remainder of the war a Bosnian Muslim
15 The second area where the Zenica shelling
16 seems to be raised is counts 3 and 4, which assert
17 unlawful attacks on civilians. But Your Honours, for
18 the same reasons as in Blaskic, where the Trial Chamber
19 acquitted Colonel Blaskic on this count, the
20 Prosecution hasn't come close even to making, at the
21 lowest standard, a prima facie case that it was even
22 the HVO that shelled Zenica. They haven't proved what
23 calibre of shell was used --
24 JUDGE MAY: I think you have gone through all
25 of this.
1 MR. SAYERS: Let me move on.
2 The next discrete or -- location charged is
3 Divjak. And that's charged in --
4 [Trial Chamber confers]
5 JUDGE MAY: I think we've seen your
6 submissions. You say that there's no evidence about
7 Divjak. You've made that submission.
8 MR. SAYERS: Yes. I have nothing particular
9 to add to what we've said in the brief on that subject,
10 Your Honour.
11 JUDGE MAY: Yes. Now, again, you've made
12 your submissions in relation to the connection between
13 Mr. Kordic and Ahmici and Stupni Do, again at some
14 length, and I think we have those.
15 Is there other count that you want to address
16 us on?
17 MR. SAYERS: The submissions that we have
18 relating to the claims of crimes in Busovaca, Counts 3
19 to 4, 7 to 13, and 37 to 39, we simply want to draw the
20 Trial Chamber's attention to the specificity of the
21 time periods of the crimes alleged in those counts.
22 It's January 1993, and I believe some of the counts may
23 spill over into February of 1993.
24 Presumably this is referring to the outbreak
25 of fighting that occurred in Busovaca. I don't wish to
1 repeat everything that we've said in our brief, it's
2 said in black and white, but I do wish to emphasise
3 this point to the Court: The fighting began after the
4 ABiH had actually taken the initiative, through its
5 333rd Mountain Brigade in Kacuni, to block the main
6 supply route and cut off the means of communication
7 between Kiseljak and Busovaca. There's no question
8 that that occurred.
9 In fact, if the Court refers to the January
10 the 20th milinfosum contemporaneously generated by the
11 1st Battalion of the Cheshire Regiment, D53/1, you can
12 see that the reason that that roadblock or that that
13 demarche, that military initiative was undertaken was
14 to prevent reinforcements arriving in Busovaca from
15 points south. That's precisely what the milinfosum
16 says. Prior to that there had been no roadblocks, no
17 particular incidents of tension between the
18 communities, and there's no question that there was an
19 outbreak of fighting on the 25th of January of 1993.
20 But I do want to -- draw the Court's
21 attention to this: The testimony of Major Jennings and
22 the milinfosums that concern that particular date, such
23 as, for example, D105/1, which is the January the 25th
24 milinfosum, and it records that there are large numbers
25 of Croat houses burning in Kacuni.
1 We say this not for any tu quoque argument.
2 There is no justification because someone else is
3 committing crimes to commit crimes. We've never taken
4 that position in this case, and we don't take it now,
5 but it is relevant contextually to determination of
6 whether, in fact, crimes occurred in Busovaca in
7 January of 1993, because it was the ABiH that actually
8 initiated the military campaign there by blocking off
9 the road, establishing military hegemony over that
10 road, and by actually cleaning out the Croat population
11 from the adjoining villages around Kacuni, such as
12 Gusti Grab and Oseliste, all of which has been the
13 subject of fairly extensive testimony.
14 We would also point out, once again not for
15 any tu quoque argument but certainly relevant
16 contextually, the evidence is absolutely uncontroverted
17 regarding the Bosnian Muslim massacres in Dusina,
18 Lasva, and Witness Z's testimony established that
19 rather eloquently and fully, and there's no controversy
20 of that.
21 So there was a lot of fighting going on in
22 Busovaca, there were lot of Bosnian Croats being killed
23 in Busovaca, and I don't believe that there's proof of
24 crimes going on in Busovaca, number one; number two,
25 there is no connection between Mr. Kordic and the
1 crimes that occurred in Busovaca. And there is
2 certainly no proof of any military capacity on the part
3 Mr. Kordic. And I'd just like to return, for an
4 instant, to the testimony of Lieutenant Colonel
5 Stewart, to the effect that in his opinion, based on a
6 meeting in Busovaca that he had with Mr. Kordic on
7 February the 3rd, he concluded, even though he never
8 testified to this in the Blaskic case, that Mr. Kordic
9 was the military commander in Busovaca.
10 He was forced to concede on cross-examination
11 that he couldn't identify a single person to whom he
12 communicated that belief, and he said that. He didn't
13 put that impression down in his contemporaneous diary
14 anywhere. He didn't relate that impression in his book
15 that was written one year later.
16 But equally significant, and perhaps even
17 more significant, Your Honours, is this: The military
18 intelligence cell absolutely sets out the chain of
19 command. It nowhere identifies Mr. Kordic as a
20 military commander in Busovaca or as anything other
21 than a politician associated with the HDZ and as a
22 vice-president of the HZ HB, even though he was
23 obviously a vice-president of the presidency of the
24 HZ HB, but the milinfosums make in contention that
25 Mr. Kordic is a military commander in Busovaca. In
1 fact, they do quite the reverse. They identify the
2 overall commander in Central Bosnia as
3 Colonel Blaskic. They identify, at least until the end
4 of January of 1993, which is significant for purposes
5 of this count, the military commander as Niko
6 Jozinovic, the commander of the Nikola Subic-Zrinjski
7 Brigade, which was the Busovaca Brigade, and they also
8 chronicle the change-over in command from Jozinovic to
9 Commander Grubesic, who is recorded in the February the
10 11th milinfosum being the new commander in Busovaca.
11 So at the very time the fighting broke out,
12 the military command of the Zrinjski Brigade in
13 Busovaca was in a state of flux, and the only evidence
14 that you have of Mr. Kordic as being a military
15 commander comes from the opinion of Colonel Stewart.
16 But I would point out that one of the
17 subordinate officers serving under Lieutenant Colonel
18 Stewart was Major Jennings. He was one of the three
19 people in this case, Your Honours, and I really would
20 like to emphasise this, one of the three people who
21 actually asked the question of Mr. Kordic, "Do you have
22 military authority?" And the answer was, "No." And he
23 testified to that at page 8995 of the transcript.
24 The only other people who actually took the
25 pains to ask particular questions about the military
1 chain of command were, as we've pointed out in our
2 brief, Captain Jean-Marc Lanthier, who is a transcript
3 witness. He found out that Mario Bradara was the
4 second in command of Ivica Rajic and the second
5 Operative Group in Kiseljak serving under
6 Colonel Blaskic, and he confirmed that both with
7 Bradara and Blaskic.
8 The second witness was then Captain Lee
9 Whitworth, who had some questions in his mind about the
10 chain of command within the military police, and he
11 decided to tackle the confusion on the issue by asking
12 specific questions, and he did. He asked questions of
13 Vladimir Santic and of Pasko Ljubicic and established
14 indeed that the military police, including all
15 sub-units like the Jokers, for example, which was the
16 subject that sparked his initial inquisitiveness, were
17 under the command of the 1st Company under Vlado
18 Santic, and the 4th Battalion of the military police,
19 which had, as one of its components, the 1st Company,
20 was under the overall command of Pasko Ljubicic, who in
21 turn recorded to Colonel Blaskic, and we would submit
22 that the evidence is uncontroverted once again.
23 With respect to the chain of command issues
24 in Busovaca, since that appears to be the most narrow
25 point of evidence upon which the Prosecution has tried
1 to concentrate in order to infer some sort of a
2 military role on Mr. Kordic's behalf, let me just refer
3 the Trial Chamber to milinfosum exhibits which
4 articulate the military information cell's evaluation
5 of the chain of command in the Operative Zone and in
6 Busovaca. D102/1, which is December January 15th;
7 Z423, which is January the 30th; D61/1, February the
8 2nd; D108/1, which is February the 4th, where Commander
9 Jozinovic has been ordered to transfer to Zepca under
10 Lozancic; and D109/1, which is the February the 11th
11 milinfosum I earlier adverted to, which reports that
12 Dusko Grubesic is the new commander.
13 We would respectfully submit that there is no
14 evidence that connects Dario Kordic to crimes committed
15 in Busovaca. The closest that the Prosecution has come
16 to trying to infer such a connection, we believe, is
17 well known to the Trial Chamber. They've tried to
18 suggest that there's some --
19 JUDGE MAY: I think, Mr. Sayers, you have
20 argued this extensively, and I'm sure we have the
22 MR. SAYERS: All right.
23 JUDGE MAY: Just one thing you can help us
24 on. It's this: If we came to the conclusion, again
25 it's a mere hypothesis, but suppose we came to the
1 conclusion, for instance, on Counts 37 to 39, that
2 there was no evidence on a particular location, are you
3 inviting us to rule that there is no evidence on that
4 particular location and effectively withdraw it from
5 the indictment? Can we do that?
6 MR. SAYERS: Well, that's a tricky question,
7 if I may, Mr. President, because you'll notice that the
8 indictment is pleaded not in the alternative but in the
9 conjunctive. There are a number of paragraphs, and the
10 last -- which articulate what the elements of the crime
11 are or what the particular charges are, and they
12 conclude, in the enumerated paragraphs, with "and." So
13 I think the Trial Chamber could legitimately conclude
14 if there is a failure of proof on any of the areas that
15 are alleged to have been -- in which crimes were
16 alleged to have committed, then the entire count could
17 be dismissed.
18 But we're in the Trial Chamber's hands with
19 respect to, that, and I think that that's a perfectly
20 legitimate argument. It's the Prosecution that chose
21 to plead Count 1 that way. They've pleaded it
22 collectively rather than in the alternative, and the
23 argument would be that if they had failed to prove 1,
24 that the crimes were committed in one of the areas
25 where they contend that it has been -- that crimes were
1 committed, then the entire count should fall. But if
2 the Trial Chamber believes that the better course is to
3 hold that there is no evidence on 24 of the
4 municipalities, then obviously we're in the Trial
5 Chamber's hands, and it would greatly expedite the
6 trial in this case if we didn't have to bring evidence
7 relating to those other municipalities before the
9 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,
10 there's something I would like you to tell me and which
11 might be of some help.
12 You've just said that these villages which
13 are found in the counts or, rather, that such-and-such
14 a count are relative to such-and-such a locality, and
15 you say that they are not presented in the alternative
16 but they are presented collectively. It is the whole
17 of the villages which are incorporated in such-and-such
18 a count. And of course, if you say that there is no
19 possibility to prove one element of the count, it is
20 the count in its whole which has to be dismissed, but
21 equally you can say that for a number of villages,
22 there is no evidence at all and that would allow us to
23 focus on the rest of the villages and the rest of the
24 crimes, and this would greatly expedite the
1 But I don't like this idea of expediting
2 matters in the judicial environment. We are dealing
3 with ambiguous questions here, and we are not trying to
4 be as productive as possible. We want to be as certain
5 of what we do as possible. We want to go step-by-step,
6 because the question here is to give a well-founded
7 decision. Time is not to be taken into account. It is
8 the waste of time which has to be taken into account
9 and to be avoided.
10 This is my question: Do you need for the
11 Chamber to give you a decision on that particular
12 matter? Because in the hypothesis that you do have to
13 carry on with the case and submit to us some evidence,
14 you can very easily say you don't have anything to add
15 on that particular locality because from your point of
16 view, there is no evidence that has been put forward by
17 the Prosecution.
18 And that would be it. You are not going to
19 destroy evidence that does not exist in a sense. You
20 have to deal with what has been put on the table, so to
22 It's only if you want to play Don Quixote
23 that you have to deal with things that do not exist.
24 So this is the question I put to you: Do you
25 really have to see us, the Judges of this Trial
1 Chamber, make a decision, establish a distinction
2 between this locality and the other locality?
3 MR. SAYERS: Well, that's a very interesting
4 twist, Your Honour. And if we were involved in a
5 literary exercise, I would say that we shouldn't
6 involve our efforts in tilting at illusory windmills,
7 like Don Quixote. Absolutely. But it would be a
8 considerable risk for any attorney, in a trial such as
9 this to say: Well, we consider there is no evidence on
10 this particular counts, so we are not going to
11 introduce any. Only to have the Trial Chamber later
12 say: Well, we consider that the entire count has been
14 It seems to us that it's the -- if I may
15 respectfully suggest, it's the Trial Chamber's duty to
16 analyse the amended indictment and see whether indeed
17 there is any evidence on the particular claims that
18 have been made, and then to adjudge whether that
19 evidence satisfies whatever standard the Trial Chamber
20 believes to be appropriate.
21 But if there is no evidence on a particular
22 municipality, there is simply no way that we should be
23 required to respond and come forward with our own
24 evidence as to events in that municipality or, failing
25 doing that, run the risk -- run the legal risk that we
1 might have in rebuttal or something like that, evidence
2 come in to corroborate the claims that are made in the
3 amended indictment. We don't want to do that.
4 As Mr. Smith has said, the Prosecution has
5 presumed -- have taken its best shot.
6 As he also said, this is as good as the
7 Prosecution's case gets. And if there is no evidence
8 -- I'm sorry.
9 JUDGE ROBINSON: Mr. Sayers, I am not sure I
10 understand why you say Counts 37 to 39 pleaded in --
11 pleaded collectively.
12 MR. SAYERS: I was incorrect. If that's the
13 way that the Court interpreted my -- what I said, that
14 is not correct. Count 1 is pleaded collectively.
15 Count 1, yes.
16 If you take a look at the subparagraphs, that
17 the connector between the penultimate and the ultimate
18 paragraph is "and," not "and/or."
19 JUDGE BENNOUNA: [Interpretation] Mr. Sayers,
20 Article 98 bis of the Rules -- Rule 98 bis, do you
21 think it grants the Trial Chamber this particular power
22 you were mentioning, because Rule 98 bis says that:
23 "If, after the close of the case of the
24 Prosecution, the Trial Chamber finds that the evidence
25 is insufficient to sustain a conviction on one or more
1 offences charged in the indictment, the Trial Chamber
2 shall order the judgement of acquittal."
3 But that is only what is said, "the Trial
4 Chamber shall order the entry of judgement of
5 acquittal." It says nothing more than that. It
6 doesn't speak of a decision that the Trial Chamber
7 would be empowered to make.
8 And the Rule further reads:
9 "The Trial Chamber on motion of an accused or
10 proprio motu shall order the entry of judgement of
12 In French, the wording is quite different
13 from what is said in English. It's quite different.
14 It says it concludes from the basis of what has been
15 submitted to it. In English it is to sustain. One
16 could quarrel about the wording, but the idea is that
17 indeed the evidence is insufficient to sustain a
19 But we cannot go into, you know, this
20 category of the evidence and then this category of the
21 evidence. We have to have a general look at the
22 situation and then make a decision.
23 Do you think what you are asking for falls
24 within the framework of the Rule?
25 MR. SAYERS: Well, that's exactly why I made
1 the -- that it's the Prosecution that has chosen to
2 plead Count 1 in the way that it has.
3 Let me just return to paragraph 36, which
4 says that crimes are alleged to have occurred
5 throughout the HZ HB/HR HB, and the municipality of
6 Zenica in the territory of Bosnia-Herzegovina.
7 We would submit to the Court that if the
8 Court concludes that the Prosecution has failed to
9 prove, for example, that crimes occurred in Kotor
10 Varos, then the entire count should be dismissed. And
11 they haven't proved that any crimes occurred in Kotor
12 Varos, or any of the other 24 municipalities that are
13 mentioned in the amended indictment, other than the
14 nine, of course, as to which I've conceded that there
15 has been evidence put on. And there has been some
16 evidence put on of crimes in six municipalities, no
17 evidence of crimes occurred in two others. And in
18 Kresevo, no evidence that Mr. Kordic had any connection
19 at all with anything that went on there.
20 But the --
21 JUDGE MAY: It's the words "throughout" on
22 which you rely.
23 MR. SAYERS: Exactly.
24 JUDGE MAY: To take that to an extreme
25 conclusion, they would have to prove the crimes
1 committed in every village or every hamlet, and that
2 can't be what it meant.
3 An alternative view would be that they simply
4 had to prove that crimes were committed somewhere.
5 MR. SAYERS: Well, once again, Your Honour,
6 in a criminal trial, narrow construction rules are
7 applicable. And we didn't plead this amended
8 indictment, the Prosecution did. I also stress, it's
9 amended. And here we are, at the end of the -- or way
10 beyond the end of the Prosecution's case, that the
11 indictment says what it says. And I think the
12 Prosecution has failed to prove that there were any
13 persecution crimes in 24 of the -- or in at least -- in
14 any of the municipalities. But they failed to prove
15 that there were any crimes at all of any nature in 24
16 of the municipalities.
17 And they have to prove that these crimes
18 occurred throughout the HZ HB and the HR HB and in the
19 municipality of Zenica. Where is the evidence that
20 there were any crimes in the municipality of Zenica?
21 JUDGE MAY: Well, it may be they rely on the
22 shelling there. But is there anything you want to add,
23 Mr. Sayers? I am looking at the clock now.
24 MR. SAYERS: Yes, Your Honour, I am mindful
25 of that.
1 Let me just hit two points in conclusion.
2 And they are on the concept of command responsibility
3 under Section 7(3). What is it that the Prosecution
4 theorises that Mr. Kordic did or did not do in
5 connection with the two principle events at issue in
6 the amended indictment; first, Ahmici; second, Stupni
8 The Prosecution in this case has proved in
9 their own case, unlike in the Blaskic case where it was
10 up to the Defence to do it, but the Prosecution in this
11 case has proved that the HVO did initiate an
12 investigation. They may quibble with the effectiveness
13 of that investigation, and there is a lot to be
14 quibbled with. But the problem is, and it was
15 articulated in two of the confidential exhibits, and
16 we've articulated the problem in our papers, and I
17 won't go into any detail on that, so we can avoid going
18 into private session.
19 It would be extremely difficult to identify
20 eyewitnesses or interview eyewitnesses in the process
21 of accumulating a criminal indictment against the
22 persons who were responsible for Ahmici and who should
23 have been prosecuted. How could you possibly prosecute
24 them and establish proof beyond a reasonable doubt,
25 without even the ability to interview the eyewitnesses
1 to the event, who were in Zenica? That's a real
3 But the point is that an investigation was
4 initiated, and there may be some criticisms of the
5 extent to which that investigation occurred, but it was
6 initiated within the context of the military discipline
7 system. It was initiated by Colonel Blaskic, who
8 issued directions to the SIS, which required a report
9 by a certain date and that report was returned. And
10 then there was another order issued by Colonel Blaskic
11 on August the 17th, 1993, directing the SIS to develop
12 the investigation further.
13 That's exactly what the concept of command
14 responsibility, even if Mr. Kordic could be said to be
15 in the military chain of command, or the army is
16 somehow considered to be his subordinate, that's
17 exactly what the theory is that he should have done.
18 He should have done an investigation; he should have
19 punished those who were -- who were responsible for the
20 crimes in Ahmici. But you can't punish until you can
21 identify the people who were responsible.
22 Now, four suspects were known. But as we
23 know, although the evidence is sort of in a flip-flop
24 state on that, the names of the four suspects were not
25 turned over to the HVO. No assistance was given to
1 identify the people who allegedly were responsible.
2 And those four names were developed as a result of
3 extensive investigations, interviews with eyewitnesses
4 in Zenica, as we know from the testimony of Witness AB.
5 But standing back, there is a lot to be
6 criticised in Ahmici, the stories about Serbs being
7 responsible for the crimes, or Muslims dressed up as
8 HOS, or HOS themselves. That was the conventional
9 wisdom that was parroted by the military authorities as
10 an excuse, no doubt, for what happened there.
11 And those mistakes were not repeated, Your
12 Honour -- I will only be about five minutes -- they
13 were not repeated with respect to the second incident,
14 Stupni Do.
15 There is no evidence to connect Mr. Kordic
16 with Stupni Do. And I would point out that with
17 respect to the only evidence upon which the Prosecution
18 relies in that regard, the heavily impeached Witness
19 AO, we've received yet more materials from Witness AO,
20 from the Prosecution's files. It turns out that they
21 did have a videotape of his interview in November of
22 1993, by NordBat, that's just been disclosed to us
23 after the briefs have been filed.
24 And also a number of statements which record
25 Witness AO making death threats against Muslims and
1 transporting Muslims from one military prison, HVO
2 military prison, to another, and obstructing UN access
3 to Stupni Do wearing a black uniform.
4 I am not going to spend any more time on
5 Witness AO. He's a man who is much impeached. No
6 reasonable Trial Chamber could place any reliance upon
7 the testimony of that witness. Let's take a look at
8 what happened after Stupni Do became known.
9 Mr. Kordic contacted the commander in chief,
10 or the chief of staff of the HVO, at that time General
11 Petkovic, to find out what had happened. Sir Martin
12 Garrod, Colonel Stutt both said a perfectly reasonable
13 thing to do, to call up the military figure to find out
14 what had happened in a military operation.
15 Now, what happened after that? The military,
16 at the direction of the president of the HR HB,
17 President Boban, and that's absolutely clear from
18 contemporaneous ECMM documents and from the testimony
19 of Sir Martin Garrod, and Colonel Stutt for that
20 matter. President Boban directed General Petkovic to
21 remove the military commanders. And he did. The
22 commander of the Bobovac Brigade, Emil Harah, who was
23 still the commander after Stupni Do, and who obstructed
24 the access of ECMM and UN units to Stupni Do, it's on
25 his orders that their access was obstructed on the
1 23rd, was replaced on the 24th by Kresimir Bozic.
2 The commander who was allegedly in charge of
3 the entire operations was removed from his
4 responsibilities, Ivica Rajic, by General Petkovic's
5 order, and upon order of the President of the Republic,
6 President Boban.
7 Sir Martin Garrod confirmed he had spoken
8 both with President Boban and the Prime Minister of the
9 HR HB, Dr. Prlic, and they had both confirmed to him
10 that instructions had been given to remove Rajic
11 from -- and other military commanders from positions
12 of command.
13 Similarly, a war crimes commission was
14 established on the 28th, we've established that. The
15 evidence is in the record. And an investigation was
16 commissioned, investigators were sent to UNPROFOR to
17 Lieutenant-Colonel Koet, and Colonel Stutt testified
18 that he was aware that the HVO had initiated an
20 Taking a look at all of that, Your Honours,
21 with Mr. Kordic firmly established, as he is, as a
22 political leader, what more could he have done or
23 should he have done than was done in that
24 circumstance? The civilian leaders were removed, Anto
25 Pejcinovic, and the civilian police commander, Ivica
1 Gavran, on the 23rd, by General Petkovic. That order
2 is in evidence; Z1258, I believe.
3 The commander of military police, Zvonko
4 Dusnovic was removed on the 23rd. The brigade
5 commander was removed from his position of command, and
6 the overall commander was removed from his position of
7 command, and an investigation was started.
8 Once again, though, remember this, on
9 November the 2nd of 1993, Vares fell to the ABiH
10 forces, and there was no possibility that the HVO
11 investigators could, without the assistance of the
12 ABiH, interview eyewitnesses who were present at Stupni
14 And in the absence of an ability to interview
15 eyewitnesses, the Trial Chamber might legitimately ask
16 itself: How in the world is a case of guilt beyond a
17 reasonable doubt to be established beyond the
18 perpetrator -- as to the perpetrators of the crimes in
19 Stupni Do?
20 And so I am just -- I don't think that
21 there -- the evidence establishes that there is
22 anything more that could have reasonably been done
23 under the circumstances. But the point is that
24 disciplinary measures were immediately taken and the
25 mistakes of Ahmici were not repeated. The HVO
1 immediately took responsibility for what had happened
2 in Stupni Do, and instituted immediate measures to
3 impose preliminary sanctions against the persons
4 believed to be responsible.
5 So as to Stupni Do, I think that that's the
6 synopsis of the evidence. And in the Stupni Do
7 discussion that we put in our brief, the last few
8 witnesses who testified, or amongst them, were Sir
9 Martin Garrod, Colonel Stutt, Witness AD, and other
10 military or quasi-military figures, all of whom
11 testified that they never asked Mr. Kordic if he had
12 any kind of role in the military chain of command, if
13 he had any capacity to discipline or any right to
15 And we submit to the Court that the evidence
16 is absolutely clear from the documents that he had no
17 right to intrude into the military discipline system.
18 There is not a single instance proved of where he did
19 so. There is not a single order. Not one order that
20 he signed imposing military discipline or giving
21 military orders after the initial period of confusion
22 had subsided to military units.
23 Now, consider the profusion of orders issued
24 by the actual military commanders in that regard. And
25 my final point is they simply did not ask Mr. Kordic,
1 and the evidence is clear that they didn't ask him, and
2 they admitted they didn't ask him, what his position
3 was. And the result was they couldn't tell what his
4 position was. And they admitted that too.
5 So he is not within the chain of command, he
6 is not a superior in the context of Section 7(3), and
7 he can't be held derivatively liable for the crimes
8 that occurred in, for example, Ahmici and Stupni Do
9 under the authority of Section 7(3). And we rely upon
10 our brief and the other arguments presented by
11 Mr. Smith.
12 And that concludes my presentation, unless
13 the Court has any other questions.
14 JUDGE MAY: Thank you. Mr. Kovacic, we've
15 got your brief. We've read that. So there is no need
16 to go over it again. We have, of course, the
17 Prosecution response. We'll hear any submissions you
18 have in relation to the response. It would be helpful
19 if you again would concentrate on pointing out any
20 counts on which you say there is no evidence, or no
21 sufficient evidence.
22 MR. KOVACIC: [Interpretation] Thank you,
23 Mr. President. This is -- was exactly my intention. I
24 will avoid any repetition.
25 With that purpose in mind, I would first like
1 to say that I still stand by what I have said in all
2 the arguments that we have presented in our brief.
3 Since my colleagues of the Kordic Defence
4 have addressed certain legal issues, as regards both
5 the law and the procedure, I would like to second their
6 views, which has also been presented in my written
7 brief in order to economise the time.
8 And I would like to just point out certain
9 legal aspects which was touched upon by the Kordic
10 Defence in my summary comments, which, overall, will
11 not take more than 20 minutes.
12 Also, very briefly, and just skimming the
13 surface, I will address the Prosecution's response.
14 And this was a joint response to the briefs of both the
15 Defence counsel and, obviously, I will only limit
16 myself to the points raised in reference to the Cerkez
17 case. However, I have to point out that, regrettably,
18 we only received this response last night.
19 I was able, however, to review it, and it may
20 just be that it is not fully systematic.
21 But let us go to the heart of the matter.
22 Let me point out that the central issue in this
23 proceeding is the individual responsibility. It seems
24 to me that from the very start, when the indictment was
25 issued, we have engaged perhaps too much in the general
1 picture of the events and, conditionally speaking, the
2 guilt, in quotation marks, of the HZ HB, or its
3 executive branch, HVO, or even perhaps more
4 specifically the military wing of the HVO. I believe
5 that the Trial Chamber is not putting the HZ HB or the
6 HR HB on trial here, neither the HVO or its military
8 The Trial Chamber will decide on whether my
9 client has played the role which the Prosecutor claims
10 he did play. And just to place this all in the
11 appropriate context, no brigade commander from the HVO
12 has been indicted by this Tribunal, at least not in the
13 public indictments. And if one is to believe the local
14 media, there are no sealed indictments either on any of
15 the brigade commanders.
16 Now, why is Mr. Cerkez here accused? You
17 know that each municipality had a brigade. Each
18 municipality in Bosnia tried to continue with its way
19 of life, and perhaps even believed that the war which
20 was waging over there would not spread out locally.
21 Why has Cerkez been accused? The answer is
22 only because in the territory of Vitez municipality,
23 that is, three to four kilometres from the centre of
24 town, the crime in Ahmici took place. It is clear that
25 this crime did take place. We never questioned that.
1 But when we go back to the individual responsibility,
2 the question is simply: Was my client and his unit,
3 were they actually in this unfortunate village?
4 I believe that everything else is more or
5 less decoration, used to support this, and so we
6 believe that everything else has been charged to my
7 client in support of this crime, and I believe that
8 you, as experienced Judges, know this fully well.
9 We have always held the position, and we
10 continue to hold the position that Cerkez's unit was
11 never in the field. Perhaps the only critical point
12 which is worth discussion is an assertion by a number
13 of witnesses from Ahmici, the victims. In brief, they
14 said that they recognised three groups of soldiers who
15 were in Ahmici. They spoke about uniforms and badges
16 of the military police, then the special purpose unit
17 called Jokeri or Jokers. Some mentioned uniforms which
18 supposedly referred to Vitezovi, and for the rest, they
19 said HVO soldiers in camouflage uniforms. That is not
20 sufficient proof.
21 As we saw from the presented evidence, there
22 were a lot of HVO soldiers in camouflage uniforms. As
23 a rule, municipal brigades wore such uniforms,
24 including my client's brigade, but also the units which
25 also had special badges such as white belts or black
1 uniforms or additional patches and so on.
2 Our position is that the proof is not
3 conclusive, and there is no equations there. A
4 camouflage uniform and an HVO patch does not give an
5 answer as to the membership of the brigade, and no
6 evidence led here has brought that into doubt
8 This morning, comments were made on this next
9 issue, and I would just like to address it very
10 briefly. It concerns the standard that the Trial
11 Chamber should employ in their decision.
12 I also believe that the only standard that
13 the Trial Chamber should employ pursuant to both the
14 Rules of Procedure and Evidence and wider legal
15 principle is the level of beyond reasonable doubt.
16 I would just like to remind that the
17 procedure before this Trial Chamber, as conceived by
18 the Rules, is initiated with a prima facie criteria,
19 and there is no other instrument which controls the
20 proceedings. However, unfortunately, the Rules have
21 been written in such a way that a proceeding can be
22 started against a person and a person can be submitted
23 to this long and dramatic process only to arrive, in
24 the end, that perhaps they were not guilty.
25 I don't know whether the standard of prima
1 facie is too low or there is another instrument
2 missing. I'm not certain. But I believe that the
3 standard of prima facie needs to rise steadily
4 throughout the process, and eventually it has to reach
5 the standard of above reasonable doubt, as was
6 mentioned this morning. In this way, I also concur
7 with the view of the Defence counsel for Kordic, that
8 this is the only standard that needs to be applied when
9 applying Rule 98 bis. The language there, when we try
10 to interpret it, can only point to this standard and no
11 other standard.
12 Of course, wherever there is doubt that this
13 standard was satisfied, the conclusion should be in
14 dubio pro reo, in civil law, and there is an equivalent
15 expression in the common law practice, but,
16 unfortunately, I cannot come up with right now. In
17 other words, it should be ruled in favour of the
18 accused. These are the two extremes, whether -- in
19 other words, either the standard of beyond a reasonable
20 doubt or the accused should be released.
21 I say that there is too much doubt in this
22 case, and so only the principle of in dubio should be
23 applied to my client. And even if the Defence should
24 choose not to present its case, and it is the right of
25 the Defence to present its case, I believe that the
1 Trial Chamber would still rule in favour of my client.
2 In our defence case, we'll have to address
3 Carry Spork, the investigator of the Tribunal, and we
4 will show that the arguments that he presented were
5 insufficient for conviction, and I feel that we will
6 have to deal with that in the future.
7 So we invite the Trial Chamber to apply the
8 Rule 98 bis, and in the alternative, so we invite the
9 Trial Chamber to apply its authority so that in at
10 least point 2 of the indictment, the persecution, it
11 rejects the indictment as far as the location and time
12 as stipulated in this charge. This would be the
13 location Busovaca-Novi Travnik, and the time 1992, and
14 I believe that the rest is set out in my brief.
15 Now, why do I bring this up? The time and
16 location of the perpetration of this crime, in any
17 legal system, is a crucial element of the indictment.
18 It is not an element which can be changed or omitted
19 during the proceeding.
20 The Prosecutor sets out the charge. He or
21 she says that a certain crime was committed at a
22 certain time, at a certain place. The accused would
23 not be able to offer a defence if there is no specific
24 time and location mentioned in the indictment.
25 My client, in point 2 of the indictment, has
1 been charged in a very wide area and time. Given the
2 complexity of the conflict which went on from
3 April 1993 until early 1994, this period is filled with
5 My client has been charged for events outside
6 of his jurisdiction, which is Vitez, and there were --
7 no evidence was led to prove that my client had
8 anything to do pursuant to 7(1) or 7(3), to have
9 anything to do with events in those locations.
10 As far as the time period relating to the
11 charge 2, that is April 1992 and going to September
12 1992, it should be broken down, and we all saw this in
13 the courtroom throughout these proceedings.
14 The date of 16 April is a crucial one, when
15 all the events in Central Bosnia assumed a different
16 aspect. I have argued, and I'm not going to repeat
17 myself, but I believe that no evidence was presented
18 that throughout 1992 and up to middle of April 1993, in
19 the territory of Vitez municipality, there was any
20 systematic or planned persecution of the Muslim
21 population, because the facts demonstrate that in the
22 situation when the state structure ceased to exist and
23 both ethnic groups who live in this area, and for all
24 practical purposes only two ethnic groups lived there,
25 and the third ethnic group, the Serbs, have a very
1 minor role here, were engaged in survival. We heard
2 from the Kordic defence that they employed different
3 ways of doing so, but they tried to survive and the
4 state ceased to exist. In terms of education and roads
5 and money, this is the fact which we cannot get
7 In this situation, everybody was looking for
8 a way out, and as a result, we have chaos. We have a
9 widespread common crime which causes a number of
10 incidents. This common crime has different motives.
11 Some of them are classic of greed and material gain,
12 but some also rise to nationalism. And the groups who
13 were victims were not just members of one ethnic group,
14 not just Bosnian Muslims, everybody was a victim of
15 this. There was no systematic and planned
16 persecution. The picture obviously changes when the
17 open conflict broke out.
18 If we have to set up a defence on this point,
19 then for judicial economy and in order to focus on what
20 is important, I think we need to focus on only April
22 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic,
23 sorry for interrupting, but you are saying something we
24 have heard a number of times this morning, that there
25 was chaos, everybody was a victim. You say everybody
1 was a victim, not only the Muslims, everybody was a
2 victim. But when you say "everybody was a victim," it
3 means that there were people who were victims, and there
4 were people who were guilty of committing certain
5 crimes against these victims.
6 You speak of chaos. You say that it was not
7 only the Muslims who were persecuted, but that does not
8 justify what has been done and what has happened. The
9 theory of chaos that has been put forward in this
10 particular case since the very beginning of our
11 debates, and the fact of saying that there were other
12 victims does in no way justify that crimes were
13 committed against a particular individual, and it does
14 not in any way help the situation of the accused with
15 which we are dealing with here.
16 MR. KOVACIC: [Interpretation] Of course, Your
17 Honour, I agree with this, which is why I proposed that
18 the Trial Chamber rule that there were no crimes of
19 persecution until Ahmici.
20 Regardless of any other charges in this
21 indictment, had the Ahmici not happened, I am convinced
22 that my client would not be sitting here in the dock,
23 and this is why I say that the chaos which ensued, and
24 what you said, and if we add the subjective aspect of a
25 crime, that there was no discriminatory intention in
1 1992, the motivation for pillage or murder, either of
2 Muslims or not, were a common crime. It could have
3 been love, vengeance. Perhaps we can add nationalist
4 fervour, yes, in certain incidents, but it is not the
5 general principle. There was no systematic
6 persecution. There was no plan to persecute the
7 Muslims, or Croats, for that matter.
8 This is my theory, and I believe that it is
9 supported by all the evidence that's been led in this
10 case. We can talk about the black and white division
11 after April 1993, when everybody chose sides along the
12 nationalist lines, but that only happened after April
14 So I'm just trying to evoke the context of
15 this, because this is not -- this was not happening in
16 the plastic sleeve, this was happening in real life.
17 Again, I would like to go back to another
18 argument which was discussed earlier. We believe that
19 per 98 bis --
20 JUDGE MAY: It's now five past one. Are you
21 going to finish in five minutes, Mr. Kovacic, or do you
22 want to go on after the adjournment? Very well.
23 MR. KOVACIC: [Interpretation] I'm afraid not,
24 Your Honour. I don't have that much longer, perhaps
25 five to ten minutes, but then I would like to address
1 also the Prosecutor's brief and respond to it.
2 JUDGE MAY: Very well. We'll adjourn now for
3 an hour and a half.
4 --- Luncheon recess taken at 1.05 p.m.
1 --- On resuming at 2.34 p.m.
2 JUDGE MAY: Yes, Mr. Kovacic.
3 MR. KOVACIC: Thank you, Your Honour.
4 [Interpretation] As -- I am going to continue
5 where I left off before the break. Just in response to
6 the questions asked of my colleagues regarding the
7 partial judgement, if I can make -- may call it that
9 My argument boils down to, pursuant to Rule
10 98 bis, the interpretation allows that the Chamber rule
11 individually, charge by charge, by either rejecting a
12 full charge or reject parts of it, let's say certain
14 And this argument rests on a basic principle,
15 which is to be found in all legal systems, argumentum.
16 In other words, that Trial Chamber has the authority to
17 rule in a very general sense on every charge, but if we
18 take this ancient legal principle, it is present in all
19 legal systems. It can also rule on a part thereof.
20 For example, I see no formal reason for the
21 Trial Chamber to rule on rejecting, let's say, point 2
22 or rule -- or on just part thereof in which Mr. Cerkez
23 is guilty for persecution in the territories of the
24 municipalities of Travnik -- Novi Travnik and Busovaca
25 until or up to April 1993. Because the indictment
1 charges him for persecution in -- for the persecution
2 within the period April 1992 to the end of 1993, and
3 for the municipalities of Busovaca, Novi Travnik, and
4 Vitez. And, obviously, the Trial Chamber has the
5 discretion to rule on just a part of it.
6 And I think by invoking the principle of
7 judicial economy, I think I need not to elaborate,
8 except to add that the principle of fairness to the
9 Defence, because the Defence, for purely practical
10 reasons, has to put up defence against all the
11 arguments, even if it is convinced that evidence will
12 not be led on certain charges at all. And the Defence
13 would not have the right to do otherwise, because it
14 would be in violation of its ethical code if we were to
15 judge on facts only after they have seen evidence.
16 I will not belabour this, but I would just
17 like to make some additional comments on several
18 issues. One of them is: What is the quality of
19 evidence or, if I may put it this way, what is the
20 evidentiary value of evidence led so far, even if we
21 use the standard of prima facie and how much have they
22 inculpated my client.
23 In order to summarise the argument and be
24 brief, I think I can categorise the evidence into three
25 groups. The first group, which I think is probably
1 where the majority of witness statements fall, which
2 are -- which have been levelled against my client, can
3 be reduced to some sort of a hearsay, because they used
4 the rumours, opinions, hypothetical models, things that
5 should have happened. For instance, a witness
6 testified that according to the JNA doctrine, such and
7 such things should have happened and similar
9 I got the impression that there is something
10 wrong with -- thank you. I'm sorry.
11 So in this group these were the kind of
12 statements which did not speak to the facts. People
13 did not see or hear certain things and they just talked
14 about the ways in which they found out or learned about
15 certain facts. And facts are paramount for us.
16 When we heard about opinions and beliefs and
17 hypothetical models and rumours, the Trial Chamber has
18 always told us that they would weigh this kind of
19 evidence appropriately.
20 Just to illustrate the value of such
21 statements, several times it was -- there was evidence
22 about Samir Trako in Hotel Vitez in May 1992.
23 His murder is not charged in the indictment,
24 so I can only assume that the Prosecution only wanted
25 to use this murder as an example of persecution, which
1 was committed as early as May 1992.
2 And the witness, who is a crime technician,
3 who is expected to be talking about hard facts, in
4 fact, forensic facts, all of a sudden, and after it
5 becomes clear that he doesn't have the facts, he
6 says -- and so the rumour-mill started.
7 This is just one example. I will not mention
8 any other except for one, which is interesting for me
10 Witness Sulejman Kalco who was a military man
11 who was called to talk about military matters, about
12 armaments and military doctrine and deployment, and he
13 talked about the truck bomb on the 18th of April in
14 Stari Vitez. He said that he saw my client in the APC
15 of the British Battalion, which apparently was bringing
16 Sefkija Dzidic to a meeting, and he saw there my client
17 with a cynical smile on his face.
18 I asked a forensic specialist. I think that
19 not even an expert could interpret a smile as such, and
20 he was no expert.
21 There are a host of such examples, and I'm
22 not going to cite any more of that.
23 The second group of evidence is a group that
24 could not stand by itself. It will only be relevant in
25 the context of a wider set of evidence. These are
1 facts which we might term circumstantial evidence -- I
2 see that that is the translation here -- where a whole
3 set of proofs is missing in order for such evidence to
4 have probative value.
5 Let me just give you a brief illustration of
6 what I mean. In at least two witness testimonies, for
7 example, those of witness Rebihic and Kalco and the
8 documents bearing their witness statements, it follows
9 quite clearly that the intelligence services of Bosnia
10 and Herzegovina, while the conflict was still going on,
11 not later but during the conflict, that is, the second
12 half of 1993, organised the gathering of information
13 and evidence concerning perpetrators of war crimes.
14 They did this in an organised manner, and we have heard
15 witnesses testify to this effect.
16 Quite a large number of documents originating
17 from these efforts and this work done by the army have
18 been tendered in evidence before this Tribunal. It is
19 a fact that these services have not succeeded in
20 producing and handing over a single document or a
21 single material piece of evidence which would quite
22 clearly and unambiguously incriminate -- of course,
23 according to the criteria used by those services, not
24 by the criteria of a court or Tribunal, that they would
25 incriminate Cerkez as a perpetrator of war crimes.
1 Let me remind you of two documents tendered
2 in evidence which witness Rebihic, as an intelligence
3 agent in Stari Vitez, who was physically sitting
4 several hundred metres away, as the crow flies, from
5 Cerkez for 11 months while they were surrounded, and he
6 mentioned 30 names, first and last names, and
7 descriptions of people which he considered -- whom he
8 considered to be war criminals, and in this process he
9 never once mentioned Cerkez.
10 Of course, there are other examples of this
11 kind. The only logical conclusion is that such
12 evidence favours the Defence more than it does the
13 Prosecution, because if that service was professionally
14 engaged in collecting this information, and it was, and
15 if Cerkez was the kind of person he is described as in
16 the indictment, among the large numbers of soldiers
17 present in the area, then it is quite illogical, and
18 logic is the tool we have to use, that Cerkez is
19 nowhere mentioned.
20 Finally, the third group of evidence which --
21 the probative value of which is in doubt, is the
22 following: The Prosecution uses evidence, quite
23 consistently from the very beginning, through the
24 supporting material, the discovery material, in which
25 it simply wishes to blacken the character of the
1 accused, to smear his character and to describe him as
2 a negative person who, since he is negative, will do
3 bad or prohibited things. This is an old idea in
4 criminal law. Every police everywhere has always tried
5 to depict every accused as an immoral person, a
6 dishonest person, in order to be able to prove that he
7 has committed an offence.
8 In this way, an attempt was made to create an
9 impression of guilt by association. In other words, we
10 are again dealing with the thesis that the HVO is a
11 negative group of people as such and that Cerkez was
12 associated with negative people through this
13 organisation, and, therefore, he himself must be a
14 negative person.
15 For example, his friendship with Darko
16 Kraljevic. We have heard a lot about that Darko
17 Kraljevic, and he cannot be avoided in these
18 proceedings and in all proceedings dealing with the
19 Lasva River Valley, and persistent attempts have been
20 made here to build up a story using witnesses to the
21 effect that if Cerkez was not his superior, then at
22 least they were friends. This, of course, is a story
23 with no foundation, and of course we'll have to deal
24 with it in our defence, but we think that the value of
25 this evidence is something that the Tribunal should
1 evaluate now at this stage of the proceedings, because
2 these are unnecessary matters that the Defence will
3 have to deal with.
4 A similar example is the meeting in the hotel
5 after the murder I mentioned, during the night, and a
6 witness said that Cerkez arrived in a black uniform,
7 escorted by a group of young men wearing black
8 uniforms. And no one ever saw or mentioned this
9 anywhere else, but we heard this, and the black uniform
10 in early 1992 has no relevant value except to
11 characterise him as someone who uses a black uniform to
12 demonstrate his political opinions. That was the goal.
13 Or, for example, the testimonies about the
14 purported public speech by Mario Cerkez in which he
15 promised a reward for enemy ears or fingers that had
16 been cut off. And until we got the document Z1140,
17 from which we learned the real answer, that the story
18 about this notorious speech was in fact made up by a
19 man called Fikret Hrustic, who was a member of a
20 radical brigade. And that this was mentioned in
21 milinfosum 68.
22 The only point I wish to make is that the
23 real probative value of such evidence which has been
24 presented so far in the manner in which it has been
25 presented, and without creating a complete set of
1 circumstances, and without any additional material
2 proof, is completely worthless. And I am deeply
3 convinced that if the trial were to end now, the Trial
4 Chamber could not reach any other decision if it
5 applied the standard of beyond reasonable doubt.
6 This is why I move that the Trial Chamber
7 makes such a ruling now and reject the indictment
8 against Mr. Cerkez in its entirety.
9 If the Court will allow me, I would now just
10 like to mention very briefly the points raised in the
11 Prosecution's reply to our motion. And to save time, I
12 do not think we need to reply fully to this. If the
13 Court so orders, we will do so in writing. But I would
14 just like to respond to a few salient points.
15 One of the fundamental problems that the
16 Prosecution continues to face, and I think this is
17 evident from the submission, is the problem of time.
18 It seems that the Prosecution finds it quite irrelevant
19 when an event took place who was in what position at
20 that time, whether there were subordinates to my
21 client, and what their positions were at that time.
22 And that is one of the essential issues in
23 this case. And now I am inadvertently touching upon
24 what I began with, and that is Count 2 of the
25 indictment, the length of the persecution, or the
1 duration of the persecution.
2 I do not wish to use broad terms, but we have
3 dealt with this in the Pre-Trial brief. If you will
4 forgive me, it seems somehow that my client has been
5 accused of persecution and other offences because in
6 1992 he volunteered as a relatively active person to
7 help organise and implement a struggle against the
8 Yugoslav People's Army and its local paramilitary
10 I have to reiterate that the whole story that
11 we are trying to throw light on, retrospectively, did
12 not take place in outer space. It did not take place
13 under a glass jar, protected from the rest of the
14 world. I wish to remind you that the war in Bosnia,
15 and I think that everyone, not just we in this
16 courtroom, but historians, politicians, analysts,
17 everyone who has dealt with Bosnia, and everyone really
18 has dealt with Bosnia, what they all agree on is that
19 the war in Bosnia started with the aggression of the
20 Yugoslav People's Army and the rebellion of the Serbian
21 people, or a part of the Serbian people in Bosnia, with
22 the aim of dividing Bosnia and, according to
23 Milosevic's plans, either to remain part of Yugoslavia,
24 which was falling apart, or at least for those parts
25 inhabited by Serbs which they felt they had a right to
1 keep for Serbia, should stay a part of that country.
2 This war, and this aggression, were the cause
3 of everything that happened later, as well as being the
4 cause of the Croatian-Muslim conflict.
5 I am not saying this, Your Honours, as my
6 closing brief, but only to put these events in their
7 proper context. The Lasva River Valley happened as a
8 consequence of this war, yet my client is being
9 incriminated for his role in 1992, when he was acting
10 as a volunteer, organising the struggle of the Croatian
11 and the Muslim people jointly against the Yugoslav
12 People's Army and the Serbian local paramilitary troops
13 which were threatening them.
14 Unlike many other municipalities in Central
15 Bosnia, and elsewhere in Bosnia, which we have heard
16 about from witnesses where everybody says, "The war has
17 not yet come to my doorstep, so it is no concern of
18 mine." And many were not prepared for the aggression,
19 and that is why those municipalities fell. Vitez was
20 well organised.
21 However, from the Prosecutor's response, it
22 follows from several of the points made in the first
23 part that Cerkez supported and contributed to the HDZ,
24 rose speedily through the hierarchy, became the
25 commander of the Stjepan Tomasevic Brigade. And then
1 on page 80 under B, it is stated that his
2 responsibility in that period covered the
3 municipalities of Vitez and Novi Travnik. And there is
4 no mention of -- because this obviously refers to the
5 early period, that is 1992, there is no mention of what
6 the HVO and, specifically the Stjepan Tomasevic
7 Brigade, were actually doing at that time. And their
8 only goal was the struggle against the Serbs, as I have
10 Then there follows a statement to the effect
11 that Cerkez used to come to Busovaca in order to visit
12 Dario Kordic and other important --
13 JUDGE BENNOUNA: [Interpretation] Mr. Kovacic,
14 allow me to interrupt. As you have just said, it is
15 not the time yet to enter final pleadings. Time is
16 going by swiftly, and we want to get to the end of this
17 argument this afternoon, and we will not make any
18 headway if you just follow the issues that are raised
19 by the application of Rule 98 bis. And you've told us
20 about all this in your written submission. We have
21 read that very carefully. And I am sure that it would
22 be much more useful to concentrate on a number of other
24 You'll have time later on during the trial to
25 expose your arguments within the framework of final
2 MR. KOVACIC: [Interpretation] Your Honour, I
3 agree with your remarks, and I am trying to find a way
4 to shorten this. So I will try to summarise as
5 follows: We have submitted a written brief. I have to
6 apologise, because we did not have much time to prepare
7 it, and in the last two weeks of the proceedings,
8 important matters came up. My learned friend,
9 according to the principle of equality of arms, also
10 had a very short period of time at his disposal.
11 I will not go further into a detailed
12 analysis of every point. I am talking now about the
13 Prosecution response from paragraph 8 onwards. I would
14 only like to say that nothing new has been said here.
15 Secondly, it seems that there are very many
16 incorrect facts here, especially there is much
17 confusion about time, because considering the manner in
18 which these events took place, it is not irrelevant
19 whether somebody took up a position in 1992, for
20 example, in the summer, fighting on Vlasic against the
21 Serbs, exposing myself to risk, or in 1993 when a civil
22 war broke out. So this is important.
23 Let me just refer to one more point, because
24 I think there was not a single piece of evidence of any
25 involvement of Cerkez in Busovaca. In paragraph 36,
1 under point (C), the Prosecutor refers to a witness. I
2 think she was protected. I haven't had the chance to
3 check, but I will not mention her name -- this is at
4 36(C) -- who said that Cerkez used to come to Busovaca
5 to visit Kordic, which is not something we heard from
6 anybody else during the presentation of evidence. And
7 she said, to a question put to her, that on one
8 occasion she saw Cerkez entering the municipal building
9 in Busovaca. She didn't say he was coming to see
10 Kordic and, more importantly, she didn't say when she
11 saw this.
12 I am now referring back to what I have
13 already said. These statements have no probative
14 value, simply because they are not -- they do not refer
15 to relevant facts.
16 A third point I wish to make is that the
17 thesis is being reiterated, which is like a
18 mathematical equation, and the mathematical equation is
19 as follows: A soldier from Vitez equals Cerkez's
20 subordinate, and Cerkez's superior responsibility,
21 according to Article 7(3), is built upon this.
22 I would like to say that in Vitez, Vitez was
23 the headquarters of the Operative Zone. There were
24 various units there, and my client's unit was only one
25 of these.
1 Your Honours, I would like to conclude with
2 this. I do not want to take up any more of your time,
3 but I would like to repeat my motion that the Trial
4 Chamber reject the Prosecution's case or at least to
5 reduce the area and the time of Count 2, persecution,
6 or, alternatively, and I would like to add this today,
7 this is not something I have stated in my brief, with
8 respect to Count 44, destruction of religious
9 institutions, which mentions that this was done in
10 Stari Vitez, Ahmici, and Divjak, and that Stari Vitez
11 and Ahmici took place in April 1993 and Divjak in
12 September 1993. I think that for the same reasons I
13 have already mentioned, this count referring to Divjak
14 in September 1993 should be rejected, because Divjak
15 was not mentioned once in these proceedings and this
16 would significantly shorten the proceedings if we did
17 not have to present evidence concerning a place where
18 something did not take place. It is very hard to prove
19 something that did not happen, but we will try then to
20 find witnesses who will talk about Divjak.
21 I have nothing further to add unless Your
22 Honours have any questions.
23 JUDGE MAY: Thank you, Mr. Kovacic.
24 MR. KOVACIC: Thank you.
25 JUDGE MAY: Yes, Mr. Nice.
1 MR. NICE: I'll deal first with the relevant
2 standard, and I can deal with it very shortly. It is
3 the first time, I think, that the relevant standard has
4 been argued, because it wasn't argued in Jelisic,
5 although we drew that to your attention, as a case of
6 interest, in our brief.
7 What happened in Jelisic was that Defence
8 counsel declined to make any submission of no case.
9 The chamber made it clear that it was going to make a
10 decision and declined any argument or any argument
11 about the right to argue on what the standard was or
12 what the evidence was. So it's never been argued.
13 Our brief makes clear that all decided cases
14 in the United Kingdom, even in respect of magistrates
15 sitting alone, require a higher standard -- I beg your
16 pardon, a standard that matches the standard that we
17 propose; namely, whether there is evidence sufficient
18 for the Tribunal of fact properly directed in law. The
19 commentary in Archbold isn't law for the United
20 Kingdom; the cases are.
21 Can I add to what's in the brief by this
22 additional bit of United Kingdom procedure: In cases
23 involving non-criminal matters, civil cases tried by
24 judges alone, if counsel for a defendant seeks to argue
25 that there is no case for him to answer, he is
1 ordinarily, if not invariably, required to state
2 whether he is going to call evidence or not, and only
3 if he announces that he will be calling no evidence
4 will the judge deal with his submission. There may
5 have been occasional exceptions to that, but that is
6 the almost invariable or invariable rule. That, again,
7 fits with the general suggestion that at that stage of
8 a case, you don't apply the final test, where, of
9 course, the test is different in civil cases from
10 criminal cases.
11 His Honour Judge Bennouna's question about
12 whether there is, as it were, a changing standard
13 starting at the confirmation of the indictment and
14 passing through the test appropriate at this stage to
15 the test appropriate at final determination, led us to
16 investigate the Tribunal's jurisprudence on that point,
17 and it is not unhelpful and not uninteresting.
18 So far as the test for confirmation is
19 concerned, the prima facie test, as it is set out in
20 the Statute, authority from the ICTR in at least two
21 decisions, suggests that the standard is lower than the
22 standard we propose as appropriate at the end of the
23 Prosecution's case.
24 Ntakirutimana sets it out as a reasonable
25 suspicion that the suspect did in fact commit the
1 crimes as being the test. And in Nyiramasuhuko, the
2 test is that there must be facts which raise a clear
3 suspicion that the suspect is guilty of committing the
4 offence for reasonable grounds to exist.
5 There is another decision in this Tribunal,
6 recent decision by Judge Hunt in a recently confirmed
7 indictment which sets a different standard. But it is
8 out of line with the majority of the jurisprudence.
9 And, of course, is not something in the circumstances
10 that could be appealed, given that he confirmed the
11 indictment concerned.
12 So that rather fits with the general -- not
13 proposition raised by His Honour Judge Bennouna, but
14 the possibility raised by him that there should be a
15 three-part test, for which this test is the middle test
16 and for which the appropriate test will be the one we
18 And finally, because we've argued this matter
19 fully in our brief, I draw to the Tribunal's attention
20 that were the Defence to be right in the test or the
21 standard that they propose, why then, at the end of
22 every Prosecution, for any count that goes forward, it
23 might be that the Chamber would have to prepare a full
24 written, reasoned judgement before the case could go
25 forward. It's hard to see how the thing could be dealt
1 with otherwise. Such a judgement, inevitably, making
2 it more difficult for them, not to depart from their
3 judgement, but for them to rearticulate the case, if
4 and when they have heard further evidence called by the
5 Defence. But that would be a practical consequence.
6 Before I turn to the matters argued today on
7 the facts of this case, can I deal with something that
8 probably won't arise -- I suppose it might do. Namely,
9 adjudicated facts in other cases. The Tribunal has
10 required of us, following the submission of our motion
11 in respect of Kupreskic and Blaskic, that we identify
12 findings we would rely upon. We've had quite a
13 generous period of time to deal with that, but we
14 thought it appropriate to deal with it as swiftly as we
16 The two judgements come in different format.
17 The Kupreskic judgement, very compactly setting out
18 conclusions separate from earlier discussion, but the
19 Blaskic judgement, it appears to us, taking factual
20 decisions, adjudicated facts in its stride as it
21 narrates the history of events.
22 Given these two different approaches, what we
23 have done, and the documents are available now, what we
24 have done is to take the versions of each judgement and
25 to highlight electronically, so it turns it grey, those
1 passages upon which we would rely.
2 I am aware of the fact that it is by no means
3 uncontroversial whether adjudicated facts can be relied
4 on before the other case has gone through the process
5 of appeal, which seems all cases do in this Tribunal,
6 nearly all cases.
7 Nevertheless, it is entirely appropriate that
8 we should seek to rely on adjudicated facts at this
9 stage for two reasons. First, there has been a case,
10 Kvocka, I think, where some adjudicated facts from
11 Tadic, first instance, were relied upon, although I
12 accept that the majority of those facts, or indeed all
13 of them, were really background historical matters.
14 And I note, in parenthesis, there will come a time, if
15 it hasn't come already, when some of the facts
16 concerning what happened in this conflict, perhaps even
17 some of the facts that happened -- some of the facts
18 concerning what happened in the Central Bosnia area
19 will become effectively accepted historical facts. But
20 I move on.
21 So one reason is that there have been cases
22 where adjudicated facts from a first instance decision
23 have been relied upon in a second first instance
24 decision. But second, we do not know the order in
25 which cases will be determined. It may be it goes
1 case, case, case, appeal, appeal, appeal for the Lasva
2 Valley cases.
3 It may equally be that one or -- that in the
4 same way as Kupreskic has passed through appeal before
5 determination -- I'm sorry. In the same way as other
6 cases have reached appeal before determination of
7 Kordic, that these other cases may pass through appeal
8 before Kordic, and, therefore, adjudicated facts will
9 be subject to appellate finding.
10 Therefore, if we don't put or seek to put
11 those adjudicated findings in now, we won't be in a
12 position to argue about them at the end of the case,
13 and further, to discuss the law applicable to
14 adjudicated findings.
15 JUDGE MAY: Mr. Nice, are you seeking now to
16 put your adjudicated facts?
17 MR. NICE: What I am saying is this: That
18 if, at this stage, any count were vulnerable to
19 dismissal, for want of evidence, in respect of which
20 there is an adjudicated fact in a first instance
21 decision, Blaskic or Kupreskic, then to throw that
22 count out now would be to do irreparable and incorrect
23 damage to the Prosecution. For the time might well
24 come, and might well come before final determination of
25 this case, when the fact would be available even in the
1 Appeal Chamber.
2 So we have already identified in the way I've
3 described the adjudicated facts in both cases upon
4 which we would rely. I don't want to run through them
5 all now in any detail, but Your Honour will know in
6 Kupreskic, findings of ethnic cleansing and systematic
7 attack and so on were made; that the Muslims were the
8 group to be expelled.
9 In the Blaskic case, on our understanding of
10 what are the factual findings of that Chamber, divined
11 from the French version, then the Court should know
12 that there have been findings about the involvement of
13 the Vitez brigade, in the area of Ahmici and in Vitez;
14 specific findings about the nature of the attack
15 against the Muslim population in Vitez involving the
16 Vitez brigade; findings about the failure to punish
17 offending soldiers; findings specifically that the
18 planning of the attacks and the execution of the
19 attacks was not limited to the Vitezovi; and some quite
20 specific findings about the involvement of Mr. Cerkez.
21 But I don't forecast they will be necessary
22 at this stage, for reasons to which I will now turn.
23 But our position is that we are seeking to have them
24 considered in due course, therefore, we put them in
25 now. And the documents highlighting the passages on
1 which we rely will be available, and it's a matter for
2 the Chamber whether they should go through the Registry
3 in the formal way to be numbered or whether they should
4 be accepted in any other way.
5 As I turn to the submissions made by both
6 defendants in writing and repeated here today, we find
7 ourselves in the position, so far as the Kordic
8 submissions are concerned, of still not fully
9 understanding where it is being said that there is no
10 evidence, as opposed as to where it is being argued
11 that the evidence may not be sufficient in due course.
12 We made it clear in our submissions that we
13 simply couldn't deal with the fully argued case in the
14 time available, and have not sought to do so, because
15 it is not necessary.
16 What we did, and the Chamber will have this
17 in mind, was to provide, as Annex 1 to our brief, a
18 document built on an earlier document you will perhaps
19 remember served with the Pre-Trial brief, that lists
20 the witnesses who have given evidence on particular
21 topics, and where many witnesses have given evidence on
22 a particular topic, summarising just a few of the
23 witnesses for the purposes of today's hearing.
24 This same document, let it be said, is
25 helpful if there is any potential in the Chamber to
1 exclude villages here and there from counts where they
2 are recited. So that, for example, if the Chamber were
3 to turn right to the end of this document, page 40, and
4 to have in mind Mr. Kovacic's latest, most recent
5 application in respect of Divjak, it will see from the
6 formulation of the document that in respect of Count
7 43, or Count 44, it's true that we have not produced
8 evidence in respect of the destruction of a religious
9 or educational institution for Divjak, nor, indeed, for
10 Stupni Do.
11 So that the document works in that way, and
12 save in a very limited number of cases, the previous --
13 the one's I've just referred to being a couple, save
14 that in a very limited number of cases, every box is
15 filled with one or, in most cases, many more than one
17 That document, therefore, goes to show
18 certainly that there is evidence for the Chamber to
19 consider on every count in this indictment and indeed
20 against each defendant, and the only value for the
21 defendants or for the Chamber of those empty boxes, if
22 there is in the Chamber the potential to cut down the
23 terminology of the indictment. In our respectful
24 submission, there is no such power. There is a power
25 for us, I think, to amend indictments on application
1 and with leave, but we do not seek to exercise that
3 We say that where, for example, there is no
4 evidence on the destruction of a particular mosque or
5 no evidence of plunder at a particular location, why
6 then of course that matter can be dealt with in the
7 recent decision of the Chamber in due course, and, of
8 course, as His Honour Judge Bennouna made clear in an
9 earlier discussion with one of my learned friends,
10 there's no need for them to produce evidence to counter
11 evidence that doesn't exist.
12 JUDGE MAY: Yes, of course, but they should
13 know where they are. They should know the case that
14 they're facing.
15 Is there any reason why, in this case, for
16 instance, you shouldn't simply remove those of your own
18 MR. NICE: The ones that are blank and
19 subject to a final check if we have missed something,
20 I'm not troubled by that, no.
21 JUDGE MAY: It maybe the simplest way. And
22 while we are on the topic, maybe you're coming to
23 Count 1, the 24 municipalities, but I would like to
24 hear you on that.
25 MR. NICE: That's my next point.
1 JUDGE MAY: Well, let's deal with the
2 blanks. Are there any others to which you could refer
4 MR. NICE: You can see them in page 40. You
5 can see one or two in page 39 and 38.
6 As to the destruction of villages, I've been
7 reminded that of course we may not have included
8 everything here. In particular, we may not have
9 included what the video over-flight -- the over-flight
10 video produced by Colonel Capelle revealed. No, I
11 think we have that. On second thought, I think we have
12 got it there. But this doesn't, at the moment, pretend
13 to be an absolutely exhaustive list, but subject to
14 further checking, when we've got a little more time
15 than was allowed given our need first to read and then
16 to respond to the first defendant's motion, yes,
17 there's no reason why these matters can't be deleted,
18 because we don't expect any evidence to be
19 forthcoming. Indeed, we hope that the document will
20 prove to be helpful to the Chamber, because we know the
21 Chamber's no doubt been doing its own analysis, and
22 indeed to the defendants.
23 But that approach is not one we would take in
24 respect of the persecutions count and in respect of the
25 municipalities. The terminology reflects that these
1 activities were going on in the overall area as
2 described. It was going on as part of the overall
3 plan. It may be that we've only called evidence in
4 respect of some, not all the municipalities. There is
5 no need now to go through a complex process of amending
6 to identify the municipalities and then to strike some
7 out. This count in the indictment is properly framed.
8 The evidence can, again, be readily identified, what
9 there is to be met, but no further amendment is
11 The second point that's taken on that count
12 is in respect of the use of the word "and" in the
13 penultimate act of persecution listed and before the
14 ultimate one, leading Mr. Sayers to be able to say,
15 "Well, that means each and every act of persecution
16 has to be established."
17 Not our intention, although, as a matter of
18 fact, every box in the persecution count is filled in,
19 nor required as a matter of conclusion, and sometimes
20 means simple "and," sometimes means "or." And I'm told
21 by Mr. Scott, from his federal practice, I dare say a
22 practice that may have been reflected in whoever was
23 doing the drafting of this indictment when it was
24 drafted, tells me that one of the standard directions
25 of the Federal Judge to the retiring jury is that the
1 word "and" means "or." Apparently that's a standard
3 So that there is no need to amend that single
4 word which, if you have the amended indictment before
5 you, can be found at page 10, in the version I have
6 certainly, at the end of subparagraph (i) and following
7 the word "livestock," for it's that word upon which the
8 application is built. It would be utterly ridiculous
9 to say that if these other acts of persecution were all
10 made good, that for whatever reason one and one only of
11 the subcategories was not established, why, then, the
12 whole count should fall. That can't be the intention
13 of the drafters, and certainly wasn't our intention.
14 In the event that the Chamber would prefer
15 the matter to be amended to have the word "or," that
16 can be done, but it's our submission that that simply
17 isn't necessary.
18 Now, a number of factual arguments have been
19 raised both in relation to the persecution count and
20 then, I think, in relation to other particular counts,
21 although I have found it hard to be quite sure which
22 ones. If we are right about the standard, there is no
23 need for us to address factual arguments that go simply
24 to the weight of evidence that undoubtedly exists.
25 What I will do, unless the Court tells me
1 otherwise, is make some observations and answers in
2 relation to some of the points raised, but our basic
3 position is that in all of these counts, it's clear
4 there's evidence to support the counts and the various
5 constituent elements of those counts and that the
6 exercise being engaged in is inappropriate at this
8 So far as discrimination is concerned, a few
9 corrections. The expert Ribicic did not accept that
10 this was a legitimate organisation; the reverse. He
11 also made it plain that even in its de jure form, it
12 didn't meet the required international standards for
13 the protection of the interests of minorities and that
14 it established a mononational structure. In any event,
15 the de jure nature of that organisation is hardly
16 determinative at all of whether there was persecution.
17 There was persecution in the sense of
18 discrimination, on our case, followed by particular
19 acts of persecution, leading to the plural,
20 persecutions, as set out both in the empowering Statute
21 and indeed in our indictment. And all the crimes, the
22 killings, the burning and destruction of houses, of
23 religious objects and so on, they all are constituent
24 elements of the overall campaign of persecutions, which
25 is rightly charged, which was widespread and, as the
1 Chamber knows, went well beyond the area covered by
2 this indictment. We've had some evidence on that, even
3 as far as Mostar.
4 The Chamber will have in mind just brief
5 features of the evidence additional to what might be
6 contained in our brief, the examples of --
7 JUDGE BENNOUNA: [Interpretation] Mr. Nice,
8 allow me to interrupt you. Quite simply, and in order
9 for everything to be quite clear, it is something that
10 is linked to the question put to you by Richard May,
11 the President of this Trial Chamber, who said that the
12 persecution could be inferred from a certain number of
13 other crimes or other acts and not necessarily inferred
14 by a certain number of statements made by the accused,
15 but you are telling us that, in fact, "persecution" is
16 not an indictment -- a point of indictment in itself
17 but it is linked to other points that are present and
18 that are grouped in the indictment. Is that what you
19 mean when you say yes, but persecution is linked to
20 everything else in the counts, in the different counts,
21 when you speak of persecution, but also killings,
22 destruction of a certain number of religious buildings,
23 et cetera?
24 Could you be a little more specific? What do
25 you mean by the crime of persecution? What is your
1 definition of such a crime?
2 MR. NICE: I think Your Honour's question to
3 me is susceptible to the simple answer yes, yes in both
4 parts. First as to our adoption of the proposition
5 postulated by His Honour Judge May that these can be
6 matters of inference; but second, in answer to Your
7 Honour's more specific question: Yes, of course, the
8 campaign of persecutions carried out through, as the
9 indictment alleges, attacking cities, towns, villages,
10 and civilians, killing and causing injury to Muslim
11 civilians and so on, makes it quite clear that the
12 persecution count incorporates all or most of the other
13 matters referred to elsewhere. It is, in a sense, the
14 overarching, or in another sense, the central
15 allegation made.
16 As we know from the jurisprudence on
17 accumulative charging here, there is, in the Tribunal,
18 there is nothing wrong with and everything right with
19 these matters being charged the way that they have
20 been, but yes, but it incorporates the evidence that
21 relates to the other counts.
22 The couple of examples I was just going to
23 touch to, in case the Chamber had forgotten them, was
24 Cicak, Kljuic, and Tuka being forced out of their
25 positions by reasons of intolerance in the same way --
1 we had an example, I think, of a Croat Colonel in the
2 ABiH, if you remember, who couldn't be spoken to, was
4 Now, when we turn from the generalities as to
5 the evidence going to show the existence of the
6 persecution campaign, which I don't intend to deal with
7 any more, it's set out in Annex 1, in any event, to
8 Kordic's involvement, again this is covered fully in
9 our brief, his involvement in all of this campaign, in
10 the entire area, is established in various ways but
11 simply and shortly because he is shown to be the man
12 with authority and power is set out in our brief. He
13 never denied the authority and power when it was sought
14 of him. He was regarded by all as the most important
15 person in the territory.
16 It's clear on all accounts that the military
17 are driven by politicians, probably in nearly all or
18 all wars, but certainly in this particular territory
19 with its particular communist history.
20 There is plenty more detailed material to
21 which we could take you in respect of authority beyond
22 that that is referred to in our brief, which was
23 necessarily prepared at some short notice and ignorant
24 of what might be argued as no case, true no-case
1 I am loathe to take too much time, looking at
2 the clock, but I can certainly identify, in case it's
3 helpful, the particular additional exhibits that you
4 may want to look at, if you are at all concerned about
5 the state of the evidence on this.
6 The Chamber will, of course, have in mind the
7 transcripts of the meeting with President Tudjman,
8 23773.1, where he was present, and the capacity in
9 which he was present, representing that entire
10 community. It will have in mind 219 of the 19th of
11 September of 1992, where his signature authorised
12 somebody to carry military equipment from one territory
13 to another. It will have in mind Z128, where the
14 defendant Kordic signs for the Central Bosnia regional
15 command allowing free passage of individual -- sorry.
16 The exhibit reference I gave first is wrong. It should
17 be 2717.
18 Z128, an example of his having the power by
19 signature, and I think over a Mostar seal, to authorise
20 someone to carry arms in the territory.
21 Z187, ordering a meeting at Grude and so on.
22 JUDGE MAY: Just a moment. We are getting
23 the French coming through on the English channel.
24 THE INTERPRETER: The interpreter apologises
25 for this technical mistake.
1 JUDGE MAY: All right. We are on.
2 MR. NICE: Z139, giving an order to Vares,
3 which of course is always important in relation to
4 Vares and Stupni Do, to allow unimpeded access to the
5 HVO of the Ilidza municipality, signing as deputy
6 president of HZ HB.
7 187, a further compulsory attendance
8 invitation to the president of Vares, HVO.
9 Z202, the handwritten note from Rajic
10 requesting people to report to Kordic for financial
12 219, an order signed by Blaskic in respect of
13 weapons going towards Herzegovina requiring a valid
14 stamp of either the regional staff or the main command
15 with the signature of Kordic, or Blaskic.
16 The Court will want to have in mind Z233, a
17 document on the 22nd of September signed by Kordic
18 dealing with the complete control of the HVO of the
19 Vares municipality and various other matters, signed in
20 his capacity as deputy president of the HVO.
21 Z229, 30th of September 1992, a note of a
22 meeting where Kordic was speaking for the entire Croat
23 people and saying that if negotiations with the Muslims
24 didn't take place, then the Croats must engage in total
25 obstruction. And he appeared to chair and take over
1 the meeting, although not listed as its chairman.
2 He spoke of a meeting the previous day in
3 Vares, Z261, an order signed by Rajic on the 29th of
4 October, stating that Dario Kordic as deputy commander
5 of HZ HB requested he send all available forces to
6 defend Jajce.
7 2624.1, a meeting where Colonel Kordic is
8 signed as being present.
9 Z1080, I needn't trouble with that, I think,
10 and various other documents.
11 So in addition to the material that we've
12 summarised towards the end of our submission, the case
13 against Mr. Kordic, as the Chamber will well have
14 recognised, is that on the evidence he is shown to be
15 the most important person and is and was the most
16 important person in that area, plainly having authority
17 over military matters.
18 An aside. Complaint is made of the fact that
19 these people, the international witnesses who were
20 there to preserve the peace, didn't ask him very often
21 what his power was. Strange for them to be criticised
22 for that, but never mind. Odd for them to be
23 criticised for that. When you see a man who travels
24 with armed outriders in another car, who can only be
25 approached at his distant and well-armed location by
1 passing through layers of armed men, as we've been
2 told, and a man who never denies his authority, nothing
3 could be less surprising.
4 It's hardly the case that they are going to
5 go to such a man, in his retreat outside Busovaca, and
6 ask him if he is, in reality, the press spokesman. One
7 can think of a number of examples of people who simply
8 don't need to be enquired of as to their function.
9 Even in courts, I suppose you can. Authority is
10 revealed by what people do and, in his case, by his
11 never denying that he had it, and by showing, by the
12 things that he did, that he had it.
13 The Defence for Kordic then turn to deal with
14 various towns, for example, Travnik and Fojnica, which
15 aren't specified in the indictment and therefore to
16 which I don't need to turn. Villages like Rotilj and
17 locations like Tulica.
18 Now, if I am right in saying that the
19 indictments in principle stand and aren't to be
20 interfered with at this stage for absence of evidence
21 about a particular location, then I don't need to deal
22 with the evidence about those particular villages. Out
23 of respect for the arguments advanced, I'll say a few
24 things, just perhaps to correct some misapprehensions
25 that the Chamber might otherwise have.
1 As to Rotilj being a defendant place, the
2 position there, I think from the Morsink testimony, was
3 that the HVO commander concerned had explained that one
4 of his patrols had come under fire, and one of his
5 soldiers had been hit. But that's within the overall
6 setting of seven people found dead, including women, of
7 20 houses burnt.
8 There is further evidence that the Chamber
9 may find in, I think, Exhibit 702, in the order from
10 Blaskic on the 17th of April, setting out that there
11 was to be the capture of the areas that included that
13 As to Zepce, there is quite a lot that I
14 could say, but again it's possibly not necessary to
15 deal with it in that much detail. But in addition to
16 what we've said in our brief generally, the Chamber
17 will want to remind itself, perhaps, that in the
18 evidence of Stutt at 15159 in the transcript and
19 Exhibit 1293.2, you heard about the defendant Kordic
20 speaking graphically of Boban's heart being in Central
21 Bosnia, and saying in terms that the HVO would fight to
22 the last man to defend the pockets of Kiseljak,
23 Kresevo, and Zepce, an area in which he was plainly,
24 the Court may decide, interested.
25 In the evidence of Witness AD, and with
1 reference to Exhibit 1176.2, there was further
2 reference to -- by Kordic to the suggestion that the
3 HVO would regain territory they had lost, and link the
4 Kiseljak, Vares, and Zepce pockets.
5 Sir Martin Garrod, at 13539, dealing with
6 Exhibit 1364.6, spoke of the defendant saying that the
7 Muslims wanted the Lasva Valley, Zepce, Kiseljak, and
8 other locations.
9 Witness D, at page 3421 in the transcript,
10 deals with some of the crime base in Zepce. The
11 Chamber will remember that probably for the number of
12 prisoners involved, 1.500 in the hangar, matters of
13 that sort, and the suspicion that there were 5.000, and
14 the percentage of the parts of Zepce inhabited by
15 Muslims that had been destroyed. You also are hearing
16 evidence of the appalling conditions in which people
17 were detained.
18 You heard evidence of the destructions of
19 mosques in Zepce and so on.
20 So Zepce is a place in respect of which
21 Kordic had a clear interest. It fell within the
22 territory in which he had an interest, and of which, as
23 we say in our brief, he was not just an operator, he
24 was a creator. He was in at the beginning. This was
25 his enterprise.
1 As to Zenica, Your Honour has correctly said
2 that Zenica features both in the attack and in the
3 persecutions. But I do not take it that it is being
4 said as to the evidence of the shelling that there is
5 no evidence. The arguments that have all been
6 addressed, have all been arguments as to weight.
7 On that topic, I could, if the Chamber would
8 want it, or if I judge that I ought to, go into the
9 evidence in some detail. Perhaps it's sufficient to
10 note this, because the Defence rely on the conclusion,
11 or appear to rely on the conclusion in Blaskic.
12 In Blaskic, the evidence was either probable
13 or very probable that it was established with the HVO,
14 but not beyond reasonable doubt. And that was at the
15 end of all the evidence, different from the evidence in
16 this case. It was after hearing an expert who may or
17 may not be called in this case. And, of course, that
18 finding alone shows that there would be evidence
19 sufficient to meet whatever test is judged appropriate
20 at the half-time in a trial like this.
21 The Chamber will have in mind, in relation to
22 Zenica, evidence that may not have been available in
23 the Blaskic case, including the tape-recording between
24 Blaskic -- the tape-recording of the telephone
25 conversation between Blaskic and Kordic includes, I
1 think it's at page 2, Kordic expressing his views on
2 shelling Zenica at that much earlier -- not much
3 earlier, that earlier time, saying, "Well, if they
4 fight back, we'll shell them, but not now." A
5 tape-recording of very considerable value in all
6 particulars going to show his authority, his position
7 vis-a-vis Blaskic, but also going to show an interest
8 at that stage in shelling Zenica.
9 Also, and I am not sure if this evidence was
10 available in this form in Blaskic. You have the
11 evidence not only of where the shells came from, and
12 the probable location within the territory of the HVO,
13 you have the phone call to the radio station before,
14 and the very clear evidence from the expert Hamill,
15 that what was shown as happening in those three shells
16 was an absolutely standard target and hit by somebody
17 being kept informed of where the first shell was
18 landing, moving to the position that it sought to
19 reach, namely, the radio station. Something that may
20 have been judged a target, by no means a proper
21 military target, and so on.
22 I only go into it in that limited degree of
23 detail to emphasise the point that Zenica, even if it's
24 separable in any way within any of these counts in the
25 indictment, which we challenge, is something for which
1 there is plentiful evidence at this stage, different
2 evidence from the evidence in Blaskic, and evidence, of
3 course, to go forward to final determination.
4 In addition on Zenica, you've had some
5 evidence from a witness. I'm not sure if he was
6 protected or not so I better not name him.
7 JUDGE MAY: Mr. Nice, I have to attend a
8 meeting at 4, between 4 and 4.15. If you'd like
9 to go on till 4, we'll then rise. We'll sit again
10 at 4.15 until 5, with a view to finishing these
11 submissions today, which would be helpful.
12 MR. NICE: I should think that would be
13 possible. I hope so.
14 I'm sorry, I haven't checked whether he was
15 protected or not. It was a protected witness who gave
16 evidence, effectively, of reverse ethnic cleansing in
17 Zenica, he being a Muslim taken to Krizancevo Selo,
18 used as a hostage, and where there was efforts made for
19 him -- where he wanted to go to Zenica with his family,
20 that could only be accomplished on terms of the removal
21 of Croats from Zenica, some of them unwilling.
22 This is all part of the policy of reverse
23 ethnic cleansing, of which we've heard there and
24 elsewhere, for example, in Stupni Do.
25 You've also heard from Witness Q, who also
1 gave you evidence about Croats not wishing to be
2 exchanged, and how they had to be convinced or
4 Can I turn from that topic, which was touched
5 upon, to Divjak. I've already dealt with Divjak
6 because of the mosque that we accept is not the subject
7 of evidence, and let me come to, I think, Busovaca.
8 Busovaca again only becomes relevant if
9 there's any potential separation, which there isn't.
10 This is at the centre of the facts in this case. And
11 there are, perhaps, some other things to be said about
12 Busovaca, particularly in relation to the Defence
13 suggestions that life went back to normal in Busovaca
14 at an early stage. There has, in short, been
15 mischaracterisation of the evidence of the witnesses
17 Witness A, for example, doesn't deal with the
18 return to the quality of life at all. He deals with
19 the way that there was a complete change in life going
20 on in Busovaca, and he described all of the negative
21 effects of that life, including the effects of those in
22 the various institutions and lawful agencies who lost
23 their jobs and positions. He deals with the sacking of
24 Muslims and the removal of state symbols, and the
25 taking over of radio stations.
1 I pause there, because I should have said
2 this earlier. Because one of the problems for the
3 Croats in the Zenica radio station was it was the only
4 remaining station they didn't control in the area.
5 Witness A told you about the introduction of
6 and necessary use of the Croatian dinar. You will find
7 reference to -- in the documents that were produced to
8 you, reference to the curfew, it becoming clear that
9 the Muslims didn't have any say in these matters. They
10 lost their rights to take part. That the HVO was
11 leading the whole organisation of life, having
12 abolished the Busovaca assembly and the municipal
13 executive council.
14 The municipal work force had to report for
15 work immediately, but people had to place themselves
16 under the command of the HVO.
17 As to the suggestion that it was in some way
18 free to people to return to work, even if they didn't
19 join the HVO, untrue; the requirement to join applied
20 to all, and not just to police workers.
21 The Defence say that some workers wouldn't
22 report, wouldn't get their jobs back if they acted
23 without justification. Simply no support for that.
24 You heard from Witness M saying it was clear
25 that any Muslims that wanted to maintain a position in
1 the government would have to become members of the HVO,
2 and that he and other Muslims had no legal or moral
3 powers. They just sat in their offices to pass the
5 He explained how Asim Sunulpasic left the
6 administration and believed that was for reasons of
7 pressure and fear. He believed that the HVO wanted the
8 Muslims working in the administration who remained
9 simply as a bit of window-dressing for the ECMM.
10 Witness O told you not about his own position
11 being abolished, nor about finding a new job. He
12 stated that he later worked at Brataslana after leaving
13 the municipal administration position. They suggest to
14 the Defence that he was the head of a group that was
15 abolished. The group he headed was the executive
16 committee itself, all part of the clear act of
17 persecution charged in respect of Dario Kordic.
18 The Defence would have you believe that there
19 were two municipal departments still left headed by
20 Muslims, and they refer to Exhibit 175.1. 175.1 may
21 not be disputed, but what the witnesses said is as
22 follows: Witness M, that although he was appointed to
23 the Chief of General Administration, he had no real
24 power in that administration, was not invited to
25 meetings, and was not informed about what was
1 happening. Without his knowledge, he was indeed then
2 made a member of the HVO. More window-dressing.
3 They say that the restructured municipal HVO
4 government didn't require its employees to sign oaths
5 or allegiances. The response to that is both witnesses
6 whom I've referred to indicated they didn't sign any
7 loyalty oaths or allegiance, but it remains implicit
8 that that was the ultimatum they face in the order to
9 return to work.
10 And as to the suggestion that the community
11 was living a relatively normal life, our response is
12 that that is simply a failure to reflect the totality
13 and the reality of this evidence and that these were
14 Muslims living in fear, without rights, and without
15 entitlements that they should otherwise have had.
16 I see the time.
17 JUDGE MAY: We will adjourn now until quarter
18 past four.
19 --- Recess taken at 4.03 p.m.
20 --- On resuming at 4.20 p.m.
21 JUDGE MAY: If you could deal with the
22 matters in ten minutes or so, Mr. Nice.
23 MR. NICE: Yes, I hope so. Amongst other
24 topics referred to today, which, out of respect, I deal
25 with lightly, was the so-called Ahmici report. The
1 Chamber will recall that this was a document prepared
2 somewhere, time unknown, made available at the end of
3 the Blaskic case, and produced by us and shown to one
4 witness, Colonel Stewart, not because we acknowledge it
5 as an accurate and honest document, nor even because we
6 accept the accuracy of its apparent date, but simply to
7 show that if it's a false document, why would there be
8 need to raise such a false document if things were
9 otherwise in good order? The Chamber will recall the
10 comments and criticisms of the report made by
11 Colonel Stewart, and in light of the shortness of time,
12 I won't go into it further, but the report simply
13 doesn't fit with the events.
14 Interestingly enough, the earlier report of
15 Ljubesic, issued on the 16th of April, which is
16 accepted all round as an untrue or an inaccurate
17 document, is rather mirrored in the later report, and
18 if one looks at the reports together, one can see, it
19 may be argued, and we would argue if we had the time
20 and if it was necessary, really developing cover-up.
21 Of course, no official of the International Community
22 was informed of or provided with this alleged nearly
23 contemporaneous report, it first coming to light in the
24 Blaskic Chamber and right at the end of the Blaskic
1 Stupni Do. I've already dealt with that in
2 part by dealing with aspects of Kordic's authority in
3 Vares. It is quite clear that it can't simply be
4 blamed on Rajic, a man for whom Kordic was shown to
5 have an earlier intention to remove him from office,
6 and as Mahmutovic told you, Mr. Mahmutovic told you,
7 it's clear that in order to fire someone, that person
8 has to work for you, and Kordic was clearly seen by,
9 consistent with other evidence, as Rajic's superior.
10 You heard further evidence, of course, from
11 Sir Martin Garrod dealing with this particular area and
12 also with the conclusions of Mr. Stutt that there was
13 no doubt about who spoke for Central Bosnia, and he was
14 incorporating this area within that general title or
16 You will also probably have in mind from
17 Stutt's evidence his judgement that Kordic was the
18 third person in the military chain of command, and
19 that's something that was also spoken of by Sir Martin
20 Garrod himself.
21 The alleged dismissal of three important
22 people in the area -- and I say "alleged" advisedly --
23 and inquiries that follow do nothing but to show a
24 further determination to cover things up with the light
25 of the experience in Ahmici behind them.
1 The evidence about Stupni Do and about
2 Kordic's interest in that area and influence over it,
3 including his giving orders to Rajic, Z202 as an
4 example, fits with all the other evidence of the
5 general policy in this area. The Chamber will have in
6 mind, before even turning to the evidence of AO -- I
7 accept the evidence of AO is as yet incomplete because
8 he must come back for cross-examination.
9 But the Chamber will recall that when the
10 Witness AO described a decision that was made and then
11 had to be confirmed by telephone call or by
12 communication through the communications room, he was
13 doing something that was an echo of what we had heard
14 from other witnesses, and in particular the
15 international witnesses elsewhere, where Blaskic was
16 never able to make a final decision and had to defer to
17 someone else.
18 And you will also have in mind, in relation
19 to Witness AO, how his evidence of the purpose of the
20 Stupni Do massacre, reverse ethnic cleansing, a shock
21 to drive the remaining Croats out, to fit in with the
22 overarching plan, was a reflection not just of what we
23 have now already reviewed in Zenica as a small example,
24 but was a reflection of another witness, I think
25 Mahmutovic, who postulated that as the real reason for
1 the Stupni Do event.
2 Kiseljak. Well, I've already dealt with that
3 in part in touching on the telephone conversations
4 that -- the telephone conversations, yes, that were
5 overheard between Kordic and Blaskic, one in Kiseljak
6 and one in Busovaca. And it may be worth, because I
7 know the time is limited, just reminding you of some of
8 the things that were said between these two people.
9 Was in any sense Kiseljak separate from or was it
10 simply integrated in the overall plan and scheme of
11 things, temporarily and unhappily for the Croats,
12 divided from Busovaca.
13 As to the particular and critical
14 conversation where Kordic says, "Let's burn
15 everything. Let's hear the howitzer roar," and making
16 his decision about Zenica. His decision to attack
17 Zenica, only if it reacts.
18 The Court will already have that in mind. In
19 the same conversation he shows an interest in Fojnica,
20 Kakanj, and Visoko.
21 And in later conversations on the same tapes,
22 he shows an interest, at page 13, in Vares; at page 22,
23 an interest in Gornji Vakuf, with the remark, amongst
24 others, "How can there be a joint command with the
25 enemy?" And if that enemy was the Muslims, what does
1 that tell us about his true attitude?
2 And then at page 24 of the English transcript
3 that I have, Kordic and Blaskic speaking together of
4 trucks coming from Kiseljak, and Kordic congratulating
5 Blaskic, who says, "That's aid to the brotherly people
6 of Busovaca." And Kordic saying, "Excellent. I'll
7 tell them tomorrow on Busovaca's radio."
8 Everything that was going on, and is
9 evidenced as going on, it reflects the overall joint
10 plan to which I'll return very briefly in a moment.
11 I can deal with the Cerkez arguments
12 compactly presented both in writing and today briefly.
13 All the arguments you've heard today have been
14 arguments on weight of the evidence, as I understand
15 it. Our brief has dealt with that. It's dealt with
16 the time problem, not that the problem is something
17 that can be dealt with on this indictment. Not that
18 the time issue can be dealt with on this indictment,
19 because it's a non-separable count.
20 It's worth bearing in mind that Cerkez's
21 personal presence at various locations is not
22 required. It has to be brought to mind, it's him and
23 those he commands for whom he bears responsibility.
24 And so even if it be the case that some particular
25 location is shown not to have been visited with him,
1 not to the point.
2 He referred to, my friend Mr. Kovacic, a
3 couple of lists produced, I think, by the BiH military
4 police, detailing offenders, several of whom are shown
5 to have been members of the Viteska Brigade, including
6 the killing of Trako and the cinema rapist.
7 The evidence we've produced or that has been
8 produced is going to show that this was an active man
9 elsewhere, is relevant going to show that he is not a
10 desk-bound commander, but that is all. He is an active
11 commander in the field.
12 And so I return to our final position, brief
13 as I have attempted to be. It's important for the
14 Chamber, perhaps, just to remind itself that this
15 starts as a widespread plan. And you can look at the
16 Tudjman meeting setting out the dual-track approach,
17 the problems with the Muslims. You can look at
18 Valenta's book, which is by no means as innocent in
19 effect as the Defence would have you believe in their
21 Yes, he may not have spoken in writing of
22 violence, he may not have had violence in mind. One
23 doesn't know, at the time he wrote it. But the book is
24 written at a time when people got on comparatively well
25 together. And it speaks of the compulsory movement of
1 a sector of the population identified by ethnicity.
2 What effect is that ever likely to have on
3 those involved? And of course to a significant extent
4 we have to look at not just what people say and do, but
5 the setting in which they do it.
6 You have asked to attend to the perceptions
7 of appearances by Mr. Kordic on the television. The
8 perceptions may have been grey. Anybody making the
9 broadcasts that were made, having the effects that
10 would be had on an ethnically identified part of the
11 community, would have known that.
12 And they don't have to go the whole hog, in
13 the vernacular, and spell out in anticipation that
14 violence was a necessary and inevitable part of what
15 was going to happen.
16 So it starts as a joint plan, which the
17 defendant, Kordic, is, in effect, one of the authors in
18 an early stage, in there with Tudjman and so on.
19 And thereafter, when there are meetings
20 organised, you will see from the documents, and we
21 needn't go through them all now, that every
22 municipality is involved; invitations to every
23 municipality, everyone summoned.
24 The plan starts as an area-wide. The Central
25 Bosnia-wide plan continues in that way, and as the
1 evidence with its various similar features, as between
2 one attack and another so compellingly reveals,
3 executed on an area-wide, on a Central Bosnia-wide
5 And for that the evidence shows there is no
6 politician more important than Kordic. No one else is
7 identified as the person who would be wielding the
8 political power.
9 No other politician is shown as having the
10 political authority at direct and discrete incidents
11 that he did.
12 And the Chamber will have in mind that, of
13 course, with the access to documents these defendants
14 may have, if documents either fully identified Kordic's
15 role, as opposed to the multiplicity of roles that his
16 titles revealed, you would have seen it, a fortiori, if
17 there was any document going to show who else lay
18 behind what happened.
19 We note that it does not appear to be the
20 case any more that the international armed conflict is
21 challenged. We draw to your respectful attention that
22 although we've reviewed this matter swiftly as we've
23 been able to, facing the Defence motion that we did
24 substantially on the basis of oral testimony, a full
25 and final analysis of this case will, of course, have
1 to include careful analysis of the documents. For, in
2 the case of political leadership, there is always going
3 to be a lot to be divined from and probably
4 painstakingly divined from the documents.
5 We go back to the formalities as to Annex 1.
6 Our position is as I said it was. But we would, of
7 course, ask for the position to be deferred as to
8 striking items out, because the document, although I
9 hope it's complete, hasn't been finally checked.
10 Particularly, it hasn't been checked for any entries
11 that might be supported by documents.
12 Can I help any further?
13 JUDGE MAY: No, thank you. Yes, Mr. Sayers.
14 MR. SAYERS: Very briefly, Your Honour. I'll
15 do my best to respond on the fly because these
16 arguments have not been made in writing.
17 The standard of review. There's a lot been
18 said on that. I am not going to add too much.
19 Apparently, it seems to be the Prosecution's
20 position that any evidence, any evidence at all,
21 satisfies the requirement of the reasonable Trial
22 Chamber standard that's being articulated today. A
23 mere scintilla would be enough, and thrust upon the
24 defendant the burden of going forward.
25 We submit that that's not the test. The
1 principle seems to be that it's enough to introduce
2 evidence that crimes occurred in a village such as
3 Rotilj or Tulica, as I have stated, and that's
4 sufficient for purposes of passing muster, but it's not
5 sufficient unless there's some proven connection with
6 Mr. Kordic. If there is some proven connection that
7 his subordinates, people over whom he had command
8 responsibility, were responsible for these crimes, and
9 there is none with respect to those two villages and,
10 we would submit, for a variety of other locations for
11 the reasons that I've previously stated.
12 With respect to the civil role that the
13 Prosecution adverted to, this is not a civil case. The
14 rights of defendants in criminal cases are not
15 applicable in a civil case. Rule 98 bis is applicable
16 to this case.
17 With respect to the motion for adjudicated
18 facts, we will respond to that in writing as directed
19 by the Trial Chamber and within the time limit that the
20 Trial Chamber has requested us to respond.
21 With respect to Mr. Kordic, once again the
22 Prosecution has indeed proved that in many locales
23 there were crimes. They've also failed to prove, with
24 respect to many locales, that there were any crimes at
25 all. But even in those locales where crimes have been
1 or evidence of crimes has been adduced, there is little
2 or no connection that those crimes had anything to do
3 with Mr. Kordic.
4 The claim is made, "Well, he must have had
5 power because he never disclaimed it." But the failure
6 to disclaim you had power when the question was never
7 asked does not equal the actual possession of that
8 power, and I merely refer the Court once again to the
9 three witnesses who actually did ask the question,
10 Jean-Mark Lanthier; Major Jennings, page 8995. "Are
11 you the HVO commander?" he asked Mr. Kordic. And he
12 acknowledged that Mr. Kordic said, "No." He asked the
13 question; he got the response. I'm not going to
14 belabour all of the extensive recitation of the
15 evidence that we've put in our brief where conclusions
16 were made, very hand-waving type of conclusions, well,
17 he was a man of power, he must have had some sort of
18 power. No one was able to provide any details, no
19 one. And that's not going to pass muster in a criminal
20 case, we would submit.
21 Now, Count 1, "and" means "or." No, it
22 doesn't. "And" means "and." We didn't plead the
23 count, the Prosecution did, and they -- it's been --
24 the amended indictment has been amended, obviously, and
25 all you have to do is look at paragraph 37(J) of the
1 amendment indictment and the word "and" is there. It
2 is a conjunctive requirement. Not a disjunctive,
3 conjunctive. And they haven't proved that there was
4 persecution throughout all of the area of the
5 municipalities adverted to in the amended indictment.
6 It may assist the Trial Chamber, I didn't
7 have my copy of the amended indictment with me when the
8 question arose this morning, but the actual
9 municipalities that are specifically identified in the
10 amended indictment are identified in paragraph 5, Your
11 Honours. And as I said, as to about 24 of those
12 municipalities, there is no evidence. And we are told
13 today, for example, that there are areas that are
14 outside the indictment, such as Mostar, where terrible
15 things were happening too. Well, as you can see from
16 paragraph 5, Mostar is actually in the indictment. But
17 even if there were awful things happening in Mostar,
18 there is absolutely no evidence that they had anything
19 to do with Mr. Kordic, and the same is true with
20 respect to most of the other information.
21 Now, with respect to the persecution, the
22 generalised persecution claims made about Mr. Kordic
23 and the speeches that he made very early on, in
24 September of 1992, December of 1991, consider this Your
25 Honours: Consider the huge amount of videotape
1 evidence that's been provided to you and transcript
2 evidence by the Prosecution. Where also the huge
3 amount of print media exhibits that have been
4 introduced by the Prosecution, there is not one that
5 they can point to, not one videotape or print media
6 article where the Prosecution can say that Mr. Kordic
7 is making ethnically disparaging comments,
8 rabble-rousing, table pounding, foaming at the mouth,
9 inciting violence. There simply isn't one. The
10 evidence is before Your Honours to see for yourself and
11 assess for yourselves what he actually said as opposed
12 to fractured recollections years later of what he
13 supposedly said, and the most vivid example was the one
14 mentioned by Mr. Smith. It's Witness AQ.
15 Witness AQ was brought to this Trial Chamber
16 for one purpose, and that is to say there were two
17 speeches given by Kordic supposedly on the night of
18 April 15th. One that was in Exhibit Z665, which is a
19 videotape that she was showed, and the another, a
20 different speech for which there is no videotape, where
21 extreme comments were made, where an incitement of
22 violence supposedly occurred.
23 And I'm sure the Trial Chamber recalls, as I
24 do, that many attempts were made to persuade Witness AQ
25 that the video statement was different from the speech
1 that she remembered, and she said no, it's the same
2 speech. And indeed the Presiding Judge specifically
3 asked that question and she confirmed the information;
4 same speech.
5 So we would just refer the Court to the
6 videotapes and the newspaper articles, the print media
7 articles. Those are the best evidence of what the man
8 said. He's shown on videotape saying what he says and
9 you can assess it yourself. There is simply nothing of
10 a discriminatory, persecutory nature there at all.
11 Now, with respect to the particular villages
12 mentioned by the Prosecution, it's refreshing to find
13 that Travnik and Fojnica are out of the villages as to
14 which specific crimes are mentioned. With respect to
15 Rotilj and Tulica, as I say, no connection with Dario
16 Kordic. With respect to Zepce, Your Honours,
17 absolutely no connection with Dario Kordic.
18 Notwithstanding the reference to the testimony of
19 Colonel Stutt, Witness AD, and Sir Martin Garrod. None
20 of those witnesses testified that Mr. Kordic had the
21 slightest power or influence in Zepce, and indeed
22 Colonel Stutt testified to precisely the reverse.
23 There is quite simply no evidence that Mr. Kordic had
24 influence in Zepce or let alone that his subordinates
25 or people who were subordinates to him in some
1 quasi-military or civilian sense or any people for whom
2 he might be held to have superior responsibility
3 committed the crimes in Zepce.
4 With respect to the Zenica shelling, you can
5 read our submission on that. I have nothing to add to
7 With respect to Divjak, I think that there's
8 a concession that Count 43 has to be dismissed because
9 there is no evidence of any destruction of institutions
10 dedicated to religion there.
19 The evidence is, I believe, and I stand to be
20 corrected by the Trial Chamber, but there were only
21 four Muslims in the Busovaca government, none of them
22 were required to sign loyalty oaths. There is no
23 evidence that any Muslim representative of the Busovaca
24 government was ever required to sign a loyalty oath or
25 did so.
1 Now, Witness M, he didn't lose his job. He
2 didn't sign a loyalty job. He continued on in his
3 job. I think Nijaz Neslanovic testified she continued
4 on in her job. Witness O, his job was eliminated but
5 he wasn't throw into penury, he took up his old job at
6 the factory --
7 THE INTERPRETER: Could you please slow down?
8 MR. SAYERS: -- north-west of Busovaca in the
9 town. He continued to work; he continued to get paid.
10 He wasn't required to sign any loyalty oaths or
11 anything like that.
12 With respect to the allegations of reverse
13 ethnic cleansing, I have to confess there I greet those
14 with some skepticism. It seems to be the proposition
15 that whenever Bosnian Muslims are pushed out of their
16 homes that's the fault of the Croats. Whenever Bosnian
17 Croats are pushed out of their homes that's the fault
18 of the Bosnian Croats too. We would submit that the
19 evidence simply does not sustain that charge of reverse
20 ethnic cleansing and the ECMM documents pretty much
21 affirmatively prove it.
22 With respect to the Ahmici report, Your
23 Honour, I'm not going to say anything other than that.
24 The Prosecution says, "Well, it's a cover-up." But not
25 by Kordic. It wasn't Kordic that introduced this
1 document into evidence, it was the Prosecution. There
2 is no evidence that Kordic had any role in any cover-up
3 and there is no contention that the May the 10th, 1993
4 order issued by Colonel Blaskic was in any way dummied
5 up or a phoney order.
6 With respect to Stupni Do, I have to say
7 there is no evidence of Mr. Kordic's influence in
8 Stupni Do. In fact, the Court will no doubt recall
9 Witness AD's graphic testimony to the effect that
10 Mr. Kordic appeared sometimes to be out of touch with
11 things that were even going on in the Busovaca-Vitez
12 pocket, a piece of testimony that was actually
13 confirmed by Colonel Stutt, who said that Mr. Kordic
14 was more for the big picture type of things and really
15 didn't get involved in the nitty-gritty operational
16 matters of the type that Colonel Blaskic would get
17 involved in.
18 He also testified rather graphically to the
19 extensive geographic separation between Vares and the
20 Vitez-Busovaca pocket, and there is no evidence that
21 Mr. Kordic was ever seen in Vares at any time in 1993,
22 and the reliance on orders signed in 1992, Your Honour,
23 I think is rather unconvincing.
24 THE INTERPRETER: Can the counsel please slow
25 down a little bit. Thank you.
1 MR. SAYERS: With respect to the inferences
2 that the Prosecution seeks to compress out of the
3 dubious testimony of Witness AO, even if it weren't --
4 I have about three more minutes, Your Honour.
5 With respect to Witness AO, the inferences
6 that the Prosecution seeks to extrude from his
7 testimony are simply not there.
8 Even if you take everything that this witness
9 said as true, which we would submit would be absolutely
10 unjustified, but even if you could assume that this
11 witness were worthy of any credit, he doesn't establish
12 to whom Rajic spoke when he went to the communications
13 command centre, as he says.
14 He did not say that Rajic spoke to Kordic.
15 He merely mentioned that either the name of Kordic or
16 Petkovic cropped up or was mentioned in some undefined
17 context after he returned from the communications
18 centre. And that's it. That's as good as it gets.
19 There is no contention that Rajic was in
20 communication with Kordic. And the best evidence, Your
21 Honour, of who commanded whom is just 11 days before
22 Stupni Do the ECMM document, referred to in our brief,
23 actually shows Kordic [sic] issuing an order to Rajic
24 relating to road communications and improvements. And
25 that's in the contemporaneously-generated ECMM
1 documents. And that's, as you would expect, in the
2 military chain of command in the ordinary course.
3 With respect to Kiseljak -- I'm sorry, the
4 transcript says the evidence actually shows Kordic
5 issuing an order to Rajic. It should say Blaskic.
6 That's what I thought I said. Blaskic issuing an order
7 to Rajic relating to road improvements. Apparently, he
8 had refused to make some road improvements that
9 UNPROFOR had requested, and Blaskic intervened and
10 directed him to do precisely that. That was on October
11 12th, just a few days before Stupni Do.
12 Kiseljak, I've made my points with respect to
14 With respect to the international armed
15 conflict comment made by the Prosecution, that it
16 doesn't appear to be challenged, it absolutely is
17 challenged. And we will respond within, once again,
18 the time period that was required by the Trial
19 Chamber. I think next week and next Friday is the date
20 that the Trial Chamber directed us to respond. And we
22 Let me just finish up by saying that the
23 Presiding Judge made a comment early on in this case
24 saying, "I hope this isn't going to be a case about
25 politics." And it has largely turned out to be a case
1 about politics, unfortunately. But institutions are
2 not on trial in this case. President Tudjman, now
3 deceased, is not on trial in this case. Mr. Kordic
4 is. And it's what he said and what he did that the
5 Court should focus on.
6 Now, the Prosecution has, as we've said,
7 taken its best shot. They have had 11 months to do
8 so. I think the Court has been extraordinarily
9 generous in providing 11 months and 150 witnesses,
10 including transcript and affidavit witnesses, for them
11 to put on evidence of some crime committed by
12 Mr. Kordic or some connection that he has some superior
13 responsibility that he has.
14 They have introduced not merely a mountain of
15 documents, but a mountain range of documents, in the
16 thousands, I believe. This Prosecution -- this
17 criminal proceeding has been five, six years in the
18 making, Your Honours. And it's time now for the Court
19 to take a look at the evidence. And we would suggest
20 that, first of all, there's been no proof beyond a
21 reasonable doubt of any criminal culpability on
22 Mr. Kordic's part. And, secondly, no reasonable Trial
23 Chamber could conclude that based upon this evidence
24 there is sufficient evidence to convict Mr. Kordic of
25 any of the specific crimes alleged in the amended
1 indictment, even where there is some evidence, as
2 opposed to those municipalities where there is none.
3 And so we merely ask the Court to apply Rule
4 98 bis, as did the Trial Chamber in Jelisic, and reach
5 the appropriate decision, which is an acquittal.
6 Thank you very much.
7 MR. KOVACIC: Your Honour, I shall be really
8 very, very brief. It is so late, and of course there
9 is not too much sense to comment on all comments of my
10 learned colleague. But let me proceed in Croatian;
11 it's much easier for me.
12 [Interpretation] We have the same confusion,
13 the same time. There are no subordinate persons to
14 Cerkez in 1992, and I am giving a very rough definition
15 of this type.
16 Throughout these proceedings in the
17 Prosecution case, no argument was presented for Count
18 2. Nothing was said about his participation in it,
19 personally. And he cannot be charged in his superior
20 capacity until he was appointed the commander of the
21 brigade. That is as far as Busovaca is concerned.
22 Cerkez became the Stjepan Tomasevic Brigade
23 commander and was physically in Novi Travnik. He was
24 in the staff. He was not a commander. He was on Mount
25 Vlasic. And there are no charges that he did anything
1 in Novi Travnik. Why? Again, we are facing a problem
2 of time. Because nothing happened in Novi Travnik that
3 is incriminating.
4 After October 1992, a truce was reached and a
5 status quo was established. At the very end of 1992,
6 Cerkez is in Novi Travnik and then nothing was going on
7 there. We heard nothing. We heard at a very end that
8 a witness said that his brother was killed there. And
9 it was clearly a common crime. It had nothing to do
10 with the HVO soldiers.
11 This is why I insist so much to define the
12 territory, Busovaca, Novi Travnik, Vitez. In Vitez, as
13 is since -- after April 1993, that is a different
14 situation, and we can focus on that.
15 I want to point out one more thing. Perhaps
16 I was not clear enough, and it is my fault. The lists
17 of war criminals produced by witness Rebihic, which I
18 believe are important, I did not mention in order to
19 say that Cerkez is not guilty because he is not
20 mentioned in any of these lists. It is something
21 else. Cerkez, obviously, was not personally
22 responsible, according to the BiH intelligence sources,
23 that is the witness Rebihic. And Mr. Rebihic had
24 Mr. Cerkez before his eyes, so to speak, for a very
25 long time.
1 And Witness Rebihic did not compile his list
2 on a legal basis. He did not have any legal basis in
3 mind; having in mind a theory of superior
4 responsibility. He was a practically illiterate man.
5 It would have been impossible. So I don't think that
6 anybody should convince anybody about that.
7 Now, whether he put -- somebody else was
8 involved in this, that is a separate matter. I think
9 that he was just trying to hunt down certain men.
10 At that time, the Statute of the Tribunal did
11 not exist. Even if it did, he would not have known
12 about it also. The murder in the hotel, the
13 Vukadinovic case, that was again May 1992. Vukadinovic
14 was not his man. He was part of the military police,
15 the alleged killer. This was the man who was on guard
16 duty at that time. Then we also have the municipal
17 headquarters in Vitez, the head of this -- the staff is
18 Marijan Skopljak. The documents proved this.
19 So, if in 1992 anybody committed any crime in
20 Vitez, this cannot be ascribed to Mario Cerkez, because
21 he was not in a position of authority at that time. He
22 is only responsible for himself, personally. There is
23 no evidence as to his involvement in any crime
24 throughout 1992; that is, until he became the commander
25 of Stjepan Tomasevic Brigade, which was in late
1 February 1993. And later on he became the commander of
2 the Vitez Brigade.
3 Only from that moment on can he be
4 potentially responsible, liable, but first we have to
5 determine that some subordinate of his committed
7 JUDGE BENNOUNA: [Interpretation] Excuse me,
8 Mr. Kovacic. What are you asking for, what is it
9 exactly? As regards the issue that has been submitted
10 to us, as regards the application of Rule 98 bis, what
11 is it exactly that you are asking for? What are you
12 asking this Trial Chamber to do? Are you asking us not
13 to look at each and every act committed until February
14 of 1993? I am not sure what it is you are asking for,
15 in terms of Rule 98 bis.
16 In practical terms, what does what you are
17 saying have to do with the application of Rule 98 bis?
18 Please explain yourself.
19 MR. KOVACIC: [Interpretation] My apologies.
20 I am trying to be very brief, and obviously I am making
21 mistakes here.
22 Your Honours, my submission is, and I believe
23 that a fair interpretation of 98 bis, I believe that
24 the Trial Chamber has the right to dismiss even parts
25 of charges within individual charges. I am going a
1 step further, and I submit that the Trial Chamber
2 specifically as an example in the point 2, persecution,
3 has the right to dismiss charges for the period from
4 April 1992 to April 1993.
5 JUDGE BENNOUNA: [Interpretation] Yes. Yes,
6 Mr. Kovacic. But doesn't it all amount to the
7 following: You want us to modify again the
8 indictment. Isn't it what you are asking for? Because
9 Article -- sorry, Rule 98 bis asks the Judges to make
10 sure whether or not it is possible for them to enter a
11 judgement of acquittal. And they are trying to see
12 whether or not the evidence is sufficient for them to
13 enter a judgement of acquittal. And you are, in fact,
14 I think, asking if part of the indictment can be done
15 away with, deleted. Aren't you asking for a further
16 amendment of the indictment?
17 MR. KOVACIC: [Interpretation] Your Honour, I
18 am not asking for an amendment of the indictment,
19 because that would reverse the whole process and the
20 confirmation of the indictment, so on and so forth.
21 I am requesting that the Trial Chamber rule
22 on a part of a count, at least, because at this time
23 the Trial Chamber can dismiss the entire count. But --
24 and if a whole count can be dismissed at this point, or
25 acquit on a particular count, then the Trial Chamber
1 can certainly acquit on a part of a count, in which
2 case the whole indictment would be narrowed. And the
3 acquittal can be effected on the parts which did not
4 rise to the standard of primae facie.
5 And, in our submission, and let me just stay
6 with this example, Count 2, that no evidence was
7 offered which would lead to consideration of guilt on
8 Count 2, as in reference to the Busovaca and Novi
9 Travnik municipalities, because no evidence has been
10 offered that would rise above the standard of primae
11 facie. And this is what we believe is within the right
12 of the Trial Chamber to do.
13 Thank you.
14 [Trial Chamber confers]
15 JUDGE MAY: We'll consider these matters and
16 give our decision next week.
17 MR. SAYERS: May I just raise one very brief
18 issue, Your Honour.
19 There is an ex parte in camera motion that is
20 pending before the Court, in the event that the Court
21 reaches a decision adverse from that, which we are
22 urging today has some urgency. And there are
23 outstanding applications that have been made that
24 relate to the same matters, which we would appreciate a
25 decision on, if that's possible.
1 JUDGE MAY: Very well.
2 MR. SAYERS: Thank you.
3 --- Whereupon the Motion Hearing
4 adjourned at 5.05 p.m.
13 Blank pages inserted to ensure pagination corresponds between
14 the French and English transcripts.
13 Blank pages inserted to ensure pagination corresponds between
14 the French and English transcripts.