1 Monday, 17 May 2004
2 [Appeal Proceedings]
3 [Open session]
4 [The appellants entered court]
5 --- Upon commencing at 9.05 a.m.
6 JUDGE SCHOMBURG: A very good morning to everybody. May I ask
7 Madam Registrar, please, to call the case.
8 THE REGISTRAR: Case number IT-95-14/2-A, the Prosecutor versus
9 Dario Kordic and Mario Cerkez.
10 JUDGE SCHOMBURG: Thank you. And may we have the appearances,
11 please. For the Prosecution.
12 MR. FARRELL: Good morning, Your Honours. Appearing for the
13 Prosecution is Norman Farrell, Ms. Helen Brady, Ms. Michelle Jarvis, Ms.
14 Marie-Ursula Kind; and also Mr. Geoffrey Nice, the senior trial attorney
15 from trial, will be sitting in court with the appeals team. Our case
16 manager is Ms. Lourdes Galicia. Thank you.
17 JUDGE SCHOMBURG: Thank you, Mr. Farrell. May I ask for the
18 Defence of Mr. Kordic. Mr. Naumovski, Mr. Sayers, please.
19 MR. SAYERS: Good morning, Your Honours. My name is Stephen
20 Sayers, I will be appearing with my colleague Mr. Turner Smith, and my
21 Croatian colleague Mr. Mitko Naumovski. Our case manager is Mr. Zayne
23 JUDGE SCHOMBURG: Thank you. And the Defence for Mr. Cerkez.
24 Mr. Kovacic, please.
25 MR. KOVACIC: [Interpretation] Good morning, Your Honour. I am
1 appearing together with my colleague Mr. Goran Mikulicic as Defence
2 counsel for Mr. Cerkez. My name is Bozidar Kovacic.
3 JUDGE SCHOMBURG: May I ask both Mr. Kordic and Mr. Cerkez, first
4 you feel fit today for hearing the case, following the proceedings, in
5 particular in a language you understand?
6 THE APPELLANT KORDIC: [Interpretation] Your Honours, good morning.
7 Thank you for inquiring. Yes, I can understand and follow the proceedings
8 without problem.
9 JUDGE SCHOMBURG: Thank you. You may be seated.
11 THE APPELLANT CERKEZ: [Interpretation] Good morning, Your Honour.
12 I feel very well, and I can follow the proceedings.
13 JUDGE SCHOMBURG: Thank you. You may be seated as well.
14 Before starting, let me turn to a short introduction. In October
15 1997, Mr. Dario Kordic and Mr. Mario Cerkez voluntarily surrendered to
16 this Tribunal. The trial proceedings commenced in April 1999 and ended in
17 December 2000. On 26 February 2001, Trial Chamber III rendered a
18 judgement, sentencing Dario Kordic to 25 years of imprisonment, and Mario
19 Cerkez to 15 years of imprisonment. They were both found guilty for the
20 majority of the 44 counts of the amended indictment of the 30th of
21 September, 1998, inter alia, crimes against humanity, grave breaches of
22 the Geneva Conventions of 1949, and violations of the laws or customs of
23 war, including persecutions, murder, unlawful attacks on civilian persons
24 and property, inhumane treatment, and the destruction or wilful damage to
25 institutions dedicated to religion or education.
1 The Trial Chamber found that these crimes were committed during an
2 international armed conflict between Bosnian Muslims and Bosnian Croats in
3 1992 and 1993 in Central Bosnia, in particular in Lasva Valley. The
4 population of this area in 1991 was nearly 470.000 citizens, of whom about
5 48 per cent were Muslims, 32 per cent Croats, and 10 per cent Serbs.
6 According to the Trial Chamber, in late 1991, the Croatian
7 Democratic Union of Bosnia and Herzegovina, a branch of the Croatian
8 Democratic Union of the Republic of Croatia, set up Croatian Community of
9 Herceg-Bosna, a separate Croat community within Bosnia and Herzegovina,
10 with the intention that it should accede to the Republic of Croatia.
11 Thereafter, the Croatian Defence Council, HVO, was established as the
12 executive and Defence authority of the Bosnian Croat community in Bosnia
13 and Herzegovina.
14 Dario Kordic, according to the Appeals Chamber, was a political
15 leader in the Croatian Democratic Union of Bosnia and Herzegovina,
16 president of the Croatian Democratic Union in Busovaca, and finally,
17 vice-president of the Croatian Community of Herceg-Bosna.
18 Mario Cerkez was one of the founders of the HVO in Vitez and
19 finally commander of the Viteska Brigade.
20 The Trial Chamber held that a campaign of persecutions aimed at
21 the Bosnian Muslims took place in Central Bosnia, including the attacks on
22 towns and villages with concomitant destruction and plunder, killing,
23 injuring and detaining of Bosnian Muslims. According to the Trial
24 Chamber, the campaign to ethnically cleanse Lasva Valley of Muslims was
25 led by the Croatian Democratic Union of Bosnia and Herzegovina and
1 conducted through instruments of the Croatian Community of Herceg-Bosna
2 and the HVO and orchestrated from Zagreb.
3 The Trial Chamber found that Dario Kordic was a political leader
4 and played a principal role by planning, preparing, and ordering those
5 acts of the campaign which fell in his sphere of authority.
6 Mario Cerkez participated in the execution of the plan by
7 commanding the Viteska Brigade during the attacks on Vitez, Stari Vitez,
8 and Donja Veceriska.
9 Both Dario Kordic and Mario Cerkez were held individually
10 responsible pursuant to Article 7(1) of the Statute. In addition, Mario
11 Cerkez was also found guilty pursuant to Article 7(3) of the Statute based
12 on his superior responsibility and failure to prevent these crimes
13 committed during the attacks and to punish those who were responsible for
15 The Trial Chamber held that the well-organised and planned HVO
16 attacks in Lasva Valley culminated in the massacre in the village of
17 Ahmici on the 16th of April, 1993, where more than 100 Bosnian Muslims
18 were murdered, including 32 women and 11 children. The Trial Chamber was
19 convinced that Dario Kordic was present at meetings where the attack on
20 Ahmici was authorised and that he was associated with an order to kill all
21 military-aged men, expel the civilians, and set fire to houses in Ahmici.
22 As regards Mario Cerkez, however, the Trial Chamber was not
23 satisfied that he bore any responsibility for the attack on Ahmici.
24 The Trial Chamber found beyond reasonable doubt that during the
25 HVO offences, many hundreds of Bosnian Muslim civilians were arbitrarily
1 and unlawfully detained in makeshift camps as part of a common plan and
2 held under inhumane conditions. The Trial Chamber held that Dario Kordic
3 was responsible for the unlawful imprisonment of detainees in the area for
4 which he had authority. Mario Cerkez, as commander of the Viteska
5 Brigade, was held responsible for unlawful imprisonment and inhuman
6 treatment committed in the detention facilities in Vitez.
7 Furthermore, the Trial Chamber found that the common plan
8 comprised a pattern of unjustified destruction, plunder in the locations
9 attacked by the HVO at mosques, and other religious and educational
10 institutions were deliberately targeted. It held that Dario Kordic and
11 Mario Cerkez were involved in these offences in those places where they
12 had been finally found responsible for attacks.
13 This judgement was appealed by all parties for different,
14 sometimes overlapping, reasons. Dario Kordic and Mario Cerkez base their
15 respective fundamental appeals on numerous alleged errors of both fact and
16 law. In their opinion, also the sentences are not justified.
17 The Prosecutor has appealed the acquittal of Mario Cerkez in
18 relation to the crimes committed during the attack on Ahmici. She has
19 also appealed the sentences meted out by the Trial Chamber against Dario
20 Kordic and Mario Cerkez.
21 During the pre-appeal proceedings, various grounds of appeal were
22 withdrawn, not the least due to the further developed jurisprudence in the
23 Tribunal since February 2001. In relation to some of the locations
24 mentioned in the charges, the Prosecution has conceded that the trial
25 judgement does not contain factual findings. In this context, I would
1 like to refer particularly to pages 163 to 165 of the transcript of the
2 pre-appeal conference held the 6th of May, 2004.
3 I have to recall once again that an appeals hearing is not the
4 place to re-argue the case. As regards the scope of an appeal, all
5 parties have received the relevant parts of the Kunarac appeal judgement.
6 In this context, I want to repeat my current request to all parties: When
7 referring to a document or transcript, please mention the number or page
8 number in concreto already in the beginning of the relevant submissions so
9 that we can have the same document before us. Please also indicate when
10 you have concluded your argument on a concrete point, giving, hereby, the
11 Judges a chance to put questions to you, if necessary, without
12 interrupting your line of thoughts.
13 The Appeals Chamber will focus today on the appeal lodged by Dario
14 Kordic, tomorrow primarily on Mario Cerkez's appeal, and finally, on
15 Wednesday, on the appeal of the Prosecutor.
16 Instead of paraphrasing in more detail the various grounds of
17 appeal raised by the parties, I should like to give, without further ado,
18 the floor to the Defence of Dario Kordic.
19 Mr. Sayers, I understand that Mr. Kordic's Defence has split up
20 the submissions amongst counsel. Who wants to take the floor first?
21 Mr. Sayers?
22 MR. SAYERS: Thank you very much, Your Honour.
23 Let me just say by way of introduction that the principal
24 appellate briefs in this case were filed three years ago. In all candour,
25 they look a little fossilised in light of the jurisprudence that has been
1 developed by the Appeals Chamber in the intervening three years. They
2 have a certain antique look to them. For that reason, we have prepared a
3 very visual presentation today focused specifically on the points of
4 appeal which we consider to be the most important. Slides that will come
5 up on the screen will have detailed references to the exhibit numbers,
6 page numbers of the transcript, and most pertinently, to paragraph numbers
7 of intervening Appeals Chamber judgements and Trial Chamber judgements
8 decided over the last three years.
9 As the Appeals Chamber is well aware, there has been significant
10 development in the jurisprudence relating to the level of specificity
11 required in pleadings. The concept of joint criminal enterprise has
12 virtually been developed since 2001, when I do not believe there had ever
13 been references by that name to that concept of liability. I am sure I do
14 not need to remind the Appeals Chamber of the enormous girth of this case.
15 According to one representative of the Tribunal, this was the longest war
16 crimes trial ever tried, at least before the Milosevic case, which is just
17 about half over, as I understand it.
18 There were over 241 witnesses who testified, because many
19 testified by transcripts from other cases. There were 4.665 exhibits in
20 this case, many of which popped up, as the Appeals Chamber knows, in the
21 middle of trial, towards the end of trial, and right at the end of the
22 trial. Indeed, the appeals process has been protracted for three years
23 largely because of -- it's difficult to find an appropriate adjective, but
24 let's just say a protracted period of continual disclosures under a rule
25 which features very centrally in this case, Rule 68. In fact, last
1 Thursday we received two more disclosures, one relating to ABiH plans to
2 attack the Croats in the Lasva Valley, the other one relating to
3 detentions and a report from Zlatko Aleksovski to his commander, Colonel
4 Blaskic, on the conditions in the detention facilities.
5 That wasn't the last disclosure. We received another one on
6 Friday, the 14th of May. This was a detailed synopsis of proceedings in
7 the district military courts prepared by the district military prosecutor
8 of the HVO, Zeljko Percinlic.
9 The organisation of the argument I have set out on the slide
10 that's before the trial. I will take care of the fair trial issues.
11 Dario Kordic contends that he did not receive equality of arms. There
12 were numerous Rule 68 violations. Indeed, violations more serious than in
13 any case tried before this Tribunal, and in fact more serious than in any
14 national jurisdiction of which I am aware. These violations go to the
15 root of a fair trial in this Tribunal.
16 I will then proceed to look at the unacceptably vague indictment
17 in this case, an indictment which I must say presented the apparently
18 irresistible opportunity to the Prosecution to mount a moving target case
19 against Mr. Kordic. We had no idea from month-to-month what theory of
20 liability was being pursued against Mr. Kordic, and it changed, and it
21 changed radically right at the end of the case from a national case over
22 31 municipalities over a huge period of time, to one single meeting on one
23 afternoon on one day. Nowhere alleged in the amended indictment.
24 I will then deal with the central witness in this case, Witness
25 AT, who talked about that meeting. And the two paragraphs which are
1 absolutely central to the Trial Chamber's findings are paragraphs 630 and
2 631 of the trial judgement. We'll be paying considerable attention to
4 In addition, we are aware of no case before this Tribunal, none
5 whatsoever, where a conviction has been based upon purely uncorroborated
6 hearsay from a single witness, especially a witness such as this, a
7 convicted murderer, a self-confessed liar, and a man who attempted to
8 perpetrate a fraud on this Tribunal, on his own Trial Chamber, on the
9 Appeals Chamber and, we would argue, on the Kordic Trial Chamber too.
10 I will then proceed to authentication and Exhibit Z610.1 in
11 particular, the book of observations of an unidentified duty officer
12 prepared at a time unknown by persons unknown and for which there was no
13 authentication. The three witnesses who addressed it testified variously,
14 one, that there were anomalies that could not being explained; two, that
15 components of this document had been faked and fabricated; and three, that
16 the document did not appear to be a military document in the normal
18 I will then proceed, if I have time, to deal with the Rule 98 bis
19 issues and also armed conflict and international armed conflict.
20 The Appeals Chamber asked us to address count-by-count the
21 findings of the Trial Chamber. The Appeals Chamber cannot be unaware that
22 that's almost impossible to do because each doubt has numerous individual
23 locations. So the way we've tried to do it is to break down the elements
24 of the crime and proceed meticulously, location by location, to analyse
25 whether the elements of the crime as to each location have been made out.
1 Mr. Smith will also address the law of persecution which, as the
2 Trial Chamber noted, was the broadest count in this indictment. I would
3 say to call it the broadest count in this indictment would be an
4 understatement of great dimensions.
5 Mr. Naumovski will then proceed to examine the same sorts of
6 things with respect to village-specific locations. I've actually got the
7 order reversed on this slide here; he's going to deal with the Kiseljak
8 area first. Again, convictions there based apparently upon the
9 uncorroborated testimony of a single witness, Witness Y, and establishing
10 what? That Mr. Kordic was present at a particular place at a particular
11 time. Not that he was doing anything, because the witness didn't hear
12 Mr. Kordic say anything, didn't see him do anything; mere presence. And
13 in light of the jurisprudence from this Tribunal within the last month in
14 the Krstic case, the Potocari incidents specifically addressed in
15 paragraph 98 and 149 and 248 of that opinion, that's a finding which has
16 particular pertinence.
17 And I will conclude with the sentencing appeal.
18 Turning first to the general standards of appellate review. I had
19 intended to spend some time on that, but I'm happy to say that our efforts
20 in that regard were fruitfully truncated. The Kunarac appeals judgement
21 provides the governing standards of review, so I won't go into those
22 particularly. We acknowledge that as to errors of law, it's our burden to
23 prove that the error of law affected the outcome. We will look at
24 substantive errors of law and procedural errors that were committed by the
25 Trial Chamber.
1 As to errors of fact, again we concede not every error of fact
2 results in an acquittal or a reversal. We have to show that the error of
3 fact has resulted in a miscarriage of justice. What is that? A
4 miscarriage of justice occurs when there has been a grossly unfair outcome
5 such as, for example, when a defendant is convicted of offences in the
6 absence of factual findings, which we know has occurred here, despite a
7 lack of evidence on essential elements of the crime, which we will go into
8 in detail.
9 The key concept in any case like this is a very simple concept in
10 essence: It's linkage. In the Delalic appeals judgement, the Appeals
11 Chamber emphasised that it is the Prosecution's burden to prove the link
12 of control and great care must be taken lest an injustice be done in
13 holding someone accountable where the link of control is absent or too
14 remote. Nor is this any mystery in this case, because in the closing
15 argument held on the 14th of December, 2000, this precise point was made
16 to the Prosecution by the Presiding Judge and conceded by the Prosecution.
17 That is the issue in this case, as the Presiding Judge said, the link of
18 control, linkage with crimes and the establishment of the necessary mens
19 rea for the imposition of criminal culpability for those crimes.
20 As the Prosecution itself has acknowledged in its brief, linkage
21 is what counts in this case, and Kordic's position is that no linkage was
23 I might just say that the Galic trial judgement issued in December
24 of last year made the point that there are only two cases which have
25 examined the concept of an attack on civilians; Blaskic and Kordic. Now,
1 it's true that Galic probably is the third case, but there is no
2 jurisprudence from this Chamber on the law relating to attacks on
3 civilians, although there is some evidence that the Kunarac -- from the
4 Kunarac Appeals Chamber that emphasises that in order to establish an
5 attack on civilians, the civilian population must be the primary, not
6 merely an incidental, target of the attack.
7 Just a word on burden of proof. I'm sure I don't need to spend a
8 lot of time on this. It's pretty obvious. The Prosecution bears the
9 burden of proof at all times, arguably even on appeal, of proving guilt
10 beyond a reasonable doubt, but more importantly, as to each element of
11 each offence. Failure to prove it with respect to any element of an
12 offence results in an acquittal. Furthermore, it bears emphasis that even
13 the gravest of suspicion, as was the case in the Simic contempt judgement
14 where Mr. Avramovic was found not guilty of contempt of this Tribunal, but
15 even the gravest suspicion cannot prove guilt beyond a reasonable doubt.
16 Circumstantial evidence, the centre of the conviction against
17 Mr. Kordic, paragraph 13 of the judgement in this case described variously
18 by the Prosecution as subtle, difficult, and complex. A great deal of
19 evidence which goes one way goes the other, says the Prosecution in the
20 opening statement. How important, then, is it to make sure that the
21 Prosecution discharges in a subtle, difficult, and complex case its
22 fundamental duty of disclosing in a timely fashion exculpatory evidence,
23 or to use the apt phraseology of the Rule, as soon as practicable.
24 Because it's the Prosecution that has to prove the case, not the other way
25 around, as the Presiding Judge reminded the Prosecution at TR28306. In
1 fact, during the closing argument the Presiding Judge made the point to
2 the Prosecution that much of your case hangs on inferences, and that's
3 exactly where we are.
4 The law of inferences we've summarised on this slide. For an
5 inference to be reached it must be the only inference that can reasonably
6 be reached on the evidence. If there's another conclusion available on
7 that evidence, then it is the duty of the Trial Chamber to acquit. The
8 Trial Chamber, of course, cannot draw the inference least favourable to
9 the accused. It is Mr. Kordic's position that that happened time and
10 again in this case, and we would submit that it is apparent from looking
11 at the judgement.
12 Thirdly, and equally significantly, the Vasiljevic Appeals
13 judgement issued this year, just two months ago, made the point with
14 respect to mens rea that where mens rea is based upon inferences, special
15 attention must be paid to the acts of the accused because if the acts of
16 the accused are ambiguous, then he cannot be convicted. Here it's
17 difficult to say what the basis of the conviction was because no acts of
18 Mr. Kordic were really specified in the central paragraphs, paragraph 630
19 and 631, of the judgement. All we know is, from Witness AT, that Mr.
20 Kordic was supposedly present at a particular place at a particular time.
21 We have no idea what was said. In fact, we have no idea who said what
22 because no one was present at the central meeting. There's no proof of
23 that whatsoever and, therefore, nothing which would allow an inference one
24 way or the other as to what Mr. Kordic would have said if he had been
1 THE INTERPRETER: Would counsel please slow down a little. Could
2 the counsel be asked to slow down.
3 JUDGE SCHOMBURG: Please slow down a bit. Thank you.
4 MR. SAYERS: The law of inferences was canvassed on the 14th of
5 December, 2000, and concessions were made by the Prosecution that the law
6 is as I have just outlined it. And I have highlighted the transcript
7 reference on this slide 28303 to 304.
8 Turning to our first specific ground of appeal, ground of appeal
9 1-D, we were asked in the pre-appeal stage to address timely access.
10 Mr. Kordic takes the position that even if equality of arms means only
11 equal access to procedural relief, if that's all it means in this
12 Tribunal, and that is apparently what the law is, if that's the narrow
13 definition of what equality of arms does mean, then Mr. Kordic was denied
14 it. He made a motion for access to closed-session materials in the
15 related Lasva Valley cases before trial; denied. During trial twice;
16 denied. Oh, and why? Because the Prosecution had represented to the
17 Trial Chamber not once but twice that all exculpatory evidence had been
18 produced, and it had not been, as the Appeals Chamber is well aware. The
19 exculpatory evidence of General Blaskic was that Mr. Kordic was nowhere to
20 be seen in the HVO chain of command. Nowhere. He was a civilian.
21 General Blaskic was not subordinated to Mr. Kordic in any sense
22 whatsoever. None of that was produced to Mr. Kordic while,
23 simultaneously, the Prosecution was seeking the imposition of a life
24 sentence against Mr. Kordic under a theory of command responsibility
25 pursuant to Article 7(3) of this Tribunal's Statute.
1 Now, equality of arms is a very important concept. What's it
2 designed to do? It is designed to make sure that parties are free to
3 present their case under conditions that do not put them at a disadvantage
4 vis-a-vis the other party.
5 In the Hadzihasanovic case, the Trial Chamber emphasised that the
6 Defence is always entitled to seek material facts from any source to
7 assist it in its case, which is what Mr. Kordic did, but as I've said,
8 those efforts were -- those efforts were unsuccessful.
9 Now, how is this depicted by the Prosecution? Well, we know this
10 is depicted as a genuinely troubling episode according to the consolidated
11 respondent's brief paragraph 2.22. There was nothing episodic about this
12 non-disclosure or belated disclosure. It continued throughout the case,
13 and before the case, actually. Take a look, for example, at Witness AT.
14 When did this witness testify? One week before the close of all of the
15 evidence. Exhibit Z610.1. When did this exhibit come into evidence?
16 December 1, 2000, one week before the close of all of the evidence.
17 Under Article 21(4)(a) and (b), fair trial guarantees demand that
18 an accused have fair notice of the charges against him so that he has
19 adequate time and facilities for the preparation of his defence.
20 Associated issues are Rule 68, the right to timely access to exculpatory
21 material at a time when the accused still enjoys the presumption of
22 innocence, when the burden of proof is affirmatively upon the Prosecution
23 to prove guilt beyond reasonable doubt as to each element of each offence,
24 and when the accused still enjoys the benefit of all inferences in his
1 Before trial, an order was entered compelling the Prosecution to
2 turn over exculpatory material and witness statements. And why? Well, we
3 know: Proper protection of the rights of the accused is overriding. And
4 that order was particularly appropriate because, as we've stated on the
5 slide before this Appeals Chamber, the Prosecution had plenty of time to
6 get it right. Five years of investigations before this trial began, as
7 Mr. Goldstone told Judge McDonald in 1995, full support of the Muslim
8 authorities of the Federation, as the representative of the Muslim
9 authorities of the Federation assured the Trial Chamber again in 1995.
10 Four entire trials: Furundzija, Aleksovski, Kupreskic, Blaskic. Hundreds
11 of witnesses, thousands of exhibits. There is no excuse for the frenzy
12 that occurred at the first few months of this case, with continual
13 disclosures of literally tens of thousands of pages of documents upon
14 Kordic. When he should be preparing to get the trial under way, he was
15 still discovering what the Prosecution's case assertedly was.
16 Why is timely disclosure important? The order entered on Rules 68
17 and 66 on 26 February 1999 made this point, and it made it cogently, in
18 our view. It permits the Defence to get a clear and cohesive view of the
19 Prosecution's strategy and to make appropriate preparations. We never had
20 that opportunity.
21 Despite having plenty I have time to get it right, as we said, the
22 Prosecution moved for extensions of time right before the trial, and
23 those motions were granted. We received, I believe, some 361 witness
24 statements, plus associated documentation, not simply a month before
25 trial, but a month into the trial. The Kupreskic appeals judgement made
1 appropriate observations with respect to the fairness of such a procedure.
2 I believe the witness statements regarding Witness H, the central
3 witness in that case, indeed the linchpin of the evidence in that case,
4 were delivered to the Defence one month before the trial began.
5 When were the statements of Witness AT delivered to Mr. Kordic?
6 September and early October 2000, one and a half years after the trial had
8 The moving target presented to us raises questions of fairness.
9 As the appeals -- as the Presiding Judge stated, the Trial Chamber ought
10 to know the case it has to decide by the end of the Prosecution case, a
11 relatively elementary point, it might be thought. Well, if it was
12 reasonable for the Trial Chamber to know the case it had to decide before
13 this -- before the Prosecution rested its case, surely it was not
14 unreasonable for the Defence to know the case it had to meet before the
15 end of the Prosecution's case. And for our other arguments on this point,
16 we rely upon our brief.
17 Let me turn now to Rule 68. There are three versions of Rule 68
18 that have applied throughout the protracted history of this case. The
19 differences in the Rule make no difference in this case, because the
20 overriding obligation is still the same. The Prosecution must disclose,
21 as soon as practicable, exculpatory evidence. This is not a difficult
22 rule to understand.
23 As I stated in my opening comments, the non-disclosures here are
24 the worst example of non-disclosures in any reported case in this
25 Tribunal, far worse than in Krstic, just a month ago, worse than in any
1 other case in my national jurisdiction of which I am aware, even worse
2 than the egregious non-disclosures involved in the case decided by the
3 United States Supreme Court two months ago, Banks.
4 Now, what are the sources of the obligations of disclosure here?
5 It's not simply Rule 68. There were two separate orders entered by two
6 separate Trial Chambers, this one and the Blaskic Trial Chamber, before
7 the trial began, ordering disclosure of any exculpatory evidence to
8 Kordic from the closed-session materials in the Blaskic case and
10 Exculpatory evidence must be disclosed, if it's available, before
11 trial. Here it was available. It should have been produced as soon as
13 What's the importance of Rule 68? The Tadic appeals judgement
14 made by the point that the right to a fair trial is central to the rule of
15 law. It upholds due process of law. Indeed, the Prosecution has
16 recognised that disclosure obligations must be fulfilled by its office
17 and that that is essential for a fair trial. Ironically, this was in a
18 pleading that was filed two months before the Prosecution's consolidated
19 respondent's brief in this case, contending that it hadn't violated Rule
20 68 in any way.
21 Furthermore, three years ago, the point was made - and it was
22 reiterated two months ago in the Blaskic Appeals Chamber - that the
23 obligation to disclose is not a secondary one, to be accomplished after
24 everything else has been done. It is as important as the obligation to
25 prosecute. But apparently in this case, that is not the case to the
1 Prosecution. The obligation here, in the Prosecution's view, is a
2 secondary one, and it's only to be complied with after everything else has
3 been done, after a conviction has been obtained, partially, I might add,
4 through the suppression of critical exculpatory evidence, and discharged
5 only after the accused has found out about the non-disclosure as a result
6 of his own motions practice, fortuitously stumbling across references to
7 the concealed material in the Prosecution's other confidential submissions
8 in other cases.
9 The importance of the Prosecution's obligations under Rule 68 can
10 scarcely be overemphasised. The principle of a fair trial cannot be
11 frustrated by the Prosecution's inability to disclose exculpatory
12 evidence. That is an observation made when the Prosecution was saying,
13 "We have so much material, it's very difficult to sift through it all,
14 please allow us a little latitude in disclosing this because of the
15 magnitude of the materials we have to go through." But not in this case.
16 Because as the Appeals Chamber knows from submissions made in this case,
17 this wasn't a mistake. We had originally thought that this non-disclosure
18 was a mistake, that the matter just got lost in the shuffle, as it were,
19 that it was the product of overwork, perhaps inadvertence, perhaps
20 negligence. But it wasn't. It was deliberate. The Prosecution's Blaskic
21 trial team prepared summaries of the extensive testimony of General
22 Blaskic. They gave them to the Prosecution's trial team in this case.
23 They were looked at, scrutinised, analysed, and the decision was made
24 consciously and deliberately to withhold that material from Kordic. Now,
25 the question is: Is this acceptable conduct before this Tribunal?
1 Actually even asking the question, how could it be?
2 Speaking for myself, in my national jurisdiction, in the lowliest
3 court, the general district court of Fairfax County, in a misdemeanour
4 Prosecution, if exculpatory evidence of this magnitude had been withheld,
5 the prosecutor responsible for it would be subject to the severest of
6 disciplinary sanctions and would probably be disbarred.
7 The scope of the disclosure obligations imposed upon the
8 Prosecution are not mysterious. Rule 68 includes all information in any
9 form that falls within the description of Rule 68, according to the 11th
10 of May, 2001, decision in this case.
11 Material that is exculpatory will of course always be material for
12 the preparation of the Defence, as the Delalic Trial Chamber observed.
13 Rule 68 is a rule that must be interpreted broadly, not narrowly. It one
14 of the most onerous responsibilities of the Prosecution.
15 And why? Because guilt by association is not a concept that is
16 acceptable in this Tribunal or indeed in any tribunal. The Prosecution
17 itself recognises this, and as I've said, the Prosecution in this case
18 sought a life sentence under Article 7(3) based upon the proposition that
19 Mr. Kordic was somehow a military commander. This information was
20 absolutely refuted by General Blaskic but that refutation was deliberately
21 suppressed. General Blaskic's testimony was at all times available to the
22 Prosecution. The closed-session testimony was at all times available to
23 the Prosecution. The closed-session testimony was not available to Kordic
24 until it was ultimately produced, and I will go into the chronology of
25 that in just a minute.
1 How did we find out about it? Well, we asked for access to
2 confidential appellate submissions in other cases, and lo and behold, we
3 find two things: One, in Kupreskic, in a confidential basis, the
4 Prosecution says about Witness AT, "Well, he couldn't have been -- could
5 not conceivably have been aware of the nature and content of the political
6 leadership meeting held in the office of Blaskic on the 15th of April."
7 So that's the Prosecution's submission in the Kupreskic case. Witness AT
8 didn't have a clue about what the nature and content of the political
9 leadership meeting on the 15th of April, 1993 was.
10 And secondly, we find out in the Blaskic case, where apparently
11 General Blaskic's new defence on appeal is that Kordic was exercising
12 covert military power unknown to the military commander of the entire
13 Operative Zone, we find that the Prosecution relies upon the general's own
14 testimony that Kordic exercised no military power at all.
15 Blaskic refutes the proposition that Kordic exercised any military
16 control, according to the Prosecution's confidential submissions. Citing
17 closed-session testimony that Kordic personally was not in the chain of
18 command. He did not function within the chain of command between the
19 military police and the battalion. He was associated only with the
20 civilian authorities.
21 Nonetheless, in its sentencing appeal, the Prosecution urges the
22 Appeals Chamber to increase the sentence upon Mr. Kordic because, it is
23 said, the Trial Chamber failed to take proper account of the powers,
24 positions and responsibilities of Mr. Kordic.
25 The Prosecution has taken inconsistent positions in the various
1 appeals. For example, with respect to Novi Travnik, General Blaskic was
2 not convicted for the events that occurred in Novi Travnik in October
3 1992. Kordic was. Let's consider the non-disclosed testimony of General
4 Blaskic with respect to those events. As I've said, Kordic was not in the
5 chain of command. You can see that on the screen. As to the Novi Travnik
6 fighting, the general stressed that, "I personally was leading the
7 operations and conducting them while I was there. When I state that I am
8 leading military operations, I am saying that I am commanding the military
9 operations. When I was there, Kordic did not lead any military
11 Now, was any of this ever disclosed to Kordic by the Prosecution?
12 No. Indeed, the Prosecution called witness after witness, most notably
13 Lieutenant Colonel Stewart, to try to establish that Kordic did exercise
14 military power in that location. But look at what the military commander
15 of the entire region says; he did not. We did not have that.
16 The statements of the local or regional political representatives
17 were not, according to General Blaskic, "binding on me. Kordic was not
18 within the framework of my command --"
19 THE INTERPRETER: Kindly slow down. Thank you.
20 MR. SAYERS: Indeed, in response to a pointed question from the
21 Presiding Judge in the Blaskic Appeals Chamber, here's what the general
22 had to say about his position vis-a-vis Kordic: "I was not subordinated
23 to him at all. His statements and views were never binding on me and I
24 never received them as such." Never disclosed.
25 Banks v. Dretke. I won't spend very much time on this, this is
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 just a case from a national jurisdiction. We expressly recognise that.
2 What was suppressed there? In that case, the accused had already been
3 convicted of murder. That conviction was not at issue in Banks versus
4 Dretke. What was at issue was the death sentence imposed upon Banks in
5 the sentencing hearing, and it was at that hearing that the Prosecution
6 withheld from Banks the fact that its principal sentencing witness, Robert
7 Farr, was actually a paid informant, an issue that went directly centrally
8 to the credibility of the Prosecution's principal witness. Withheld. And
9 what did the Supreme Court say? "The suppression by the Prosecution of
10 evidence favourable to an accused upon request violates due process where
11 the evidence is material either to guilt or punishment ..."
12 "The Prosecution's deliberate deception of a court and jurors by
13 the presentation of known false evidence is incompatible with rudimentary
14 demands of justice."
15 And I emphasise "rudimentary."
16 "As soon as practicable"; what does that mean? Is it hard to
17 understand? No. It's the raison d'etre behind Rule 68. Two points in
18 this regard need to be made. First, the raison d'etre behind the
19 disclosure rules is to permit the accused to make effective use of
20 exculpatory material. Effective use at trial so that it can be used in
21 cross-examination of Prosecution witnesses. This means disclosure as soon
22 as practicably possible so that the Defence can use this material in
23 cross-examination of witnesses whom the Prosecution intends to call.
24 Again, I emphasise "at trial."
25 I've said that the decision not to disclose here was deliberate.
1 What's the proof of that, the Appeals Chamber may ask. Just take a look
2 at confidential annex 10 to the -- this says 8th of May, it's actually 8th
3 of March, 2004 Prosecution response. The Prosecution knew what the
4 general had said in closed session, knew exactly what he'd said, and it
5 decided to suppress it.
6 Now, here's what the Krstic appeals judgement had to say just a
7 month ago: "The disclosure of exculpatory material is fundamental to the
8 fairness of proceedings before the Tribunal. Considerations of fairness
9 are the overriding factor in any determination of whether the governing
10 Rule has been breached." And you can see for yourselves, paragraphs 180
11 and 211: "Grand declarations of general principles, underscoring the need
12 to enforce this Rule as a central component of the right to a fair trial."
13 So the question before this Appeals Chamber is a pretty serious
14 question today. Are these just words or do they mean something? Are the
15 legal principles that the Appeals Chamber has articulated very -- in a
16 timely fashion and in a very affirmative way in Krstic, are they to be
17 enforced? Because if they are to be enforced, they must be enforced in
18 this case. It is unacceptable in any system of civilised justice for the
19 Prosecution to -- to suppress evidence and then to tell the Trial Chamber
20 that it actually has not been suppressed.
21 In this case, there were two express representations made. One
22 was on the 20th of July -- sorry, the 20th of January, 1993, and one was
23 on the 3rd of August -- I said 1993. The 20th of January, 2000, I'm
24 sorry, and the 3rd of August, 2000. That's what really makes the
25 violation in this case egregious, we would submit to the Appeals Chamber.
1 We were seeking the admission of access to the closed-session testimony of
2 other witnesses in the related Lasva Valley cases, Blaskic being one of
4 On the 20th of January, just two days after Lieutenant Colonel
5 Stewart had finished his testimony about Novi Travnik, the Prosecution
6 said, "Don't grant this motion, we've disclosed everything. My word on
7 that should be good enough, and if it isn't, I should like to know why."
8 That's exactly what the Prosecution told the Trial Chamber and the Trial
9 Chamber agreed. It denied our motion.
10 The same thing happened on the 3rd of August, 2000, after the
11 Witness AO debacle, after it turned out following Witness AO's testimony
12 that critical exculpatory material had been in existence. The Prosecution
13 knew about it. It had been in its files for years. That material was
14 only delivered after the witness had already testified and left The
15 Hague. As a result of that, we asked for a Krnojelac certification that
16 in fact the Prosecution had complied with all of its obligations under
17 Rule 68. The Trial Chamber was told once again: We've done that. We've
18 disclosed everything. If my word on that isn't good enough, I should like
19 to know why.
20 Again, by that time, the decision not to disclose had been made.
21 As a result, our motions for access were denied at trial. That's an
22 unacceptable situation, we would submit to the Appeals Chamber.
23 Let me turn to the defective indictment in this case. A bad,
24 overly broad indictment leads to a confused, jumbled judgement. It allows
25 the Prosecution to mount a moving target case that is very difficult to
1 follow. Comment was made at the last Status Conference that it's a really
2 difficult issue to find your path through this judgement of the 26th of
3 February, 2001.
4 The obligation to draft a precise, detailed indictment is one of
5 the minimum fair trial guarantees any accused enjoys in this Tribunal
6 under Article 21(4)(a). He has a right to be informed promptly, which
7 means before the trial begins, and in detail, in detail, of the nature and
8 cause of the charge against him. And why? So that he may have adequate
9 time and facilities for the preparation of his defence.
10 The indictment is the primary accusatory instrument in this
11 Tribunal, and it must, in detail, state the material facts underpinning
12 the charges against an accused, and that's stated in no uncertain terms
13 three years ago in the Kupreskic appeals judgement.
14 I emphasise once again: Here there were five years of
15 investigation before the trial began, four entire Lasva Valley trials.
16 There was a full opportunity to amend, if fresh evidence actually did
17 emerge at trial, to amend the indictment to provide the level of
18 specificity required by the law. The indictment, nonetheless, was not
19 amended. Kordic's motions to dismiss the amended indictment as unduly
20 vague were denied.
21 What was the nature and the cause of the charges against Kordic?
22 The Appeals Chamber should pay detailed and particular attention to the
23 case against Kordic as stated in this amended indictment. Paragraph 35:
24 A political, military campaign to persecute and terrorise Bosnian Muslims.
25 Where? Throughout the 31 municipalities of the Croatian Community of
1 Herceg-Bosna and in the municipality of Zenica. What was Kordic's
2 asserted involvement? And we urge the Appeals Chamber to pay particular
3 attention to paragraphs 25 and 26 of the amended indictment.
4 Here's the involvement of Kordic, in the Prosecution's view,
5 before trial: He had various high-ranking positions. He was a definite
6 and integral and important figure in the whole campaign. He had power,
7 authority, and responsibility to direct, control, and shape its policies
8 and their execution; to prevent, limit, or punish crimes, violations or
9 abuses which occurred or were carried out in this putative campaign.
10 That's the case against Kordic.
11 What case did we have to meet? We know, because the Trial Chamber
12 encapsulated it perfectly in its 6 April 2000 decision. "The Prosecution
13 case relates to the participation of the accused, Dario Kordic, in the
14 highest levels of government, and the Defence should prepare its case
16 And that's precisely what we did, Your Honours. That's exactly
17 what we did. We called national politicians, to former Prime Ministers,
18 chiefs of the Main Staff of the HVO, numerous staff officers of the
19 Central Bosnia Operative Zone, including General Blaskic's second in
20 command, Major General Filipovic; his Chief of Staff, Brigadier Nakic; and
21 numerous other officers. We called various brigade commanders, not only
22 from the Central Bosnia Operative Zone but from other operative zones.
23 Now, given the case that was made out against Mr. Kordic, what did
24 the judgement conclude? He was not a commander. He was not a superior.
25 He had no position in the HVO chain of command. He had no power to order
1 HVO military units. He had no power to prevent crimes. He lacked
2 effective control over HVO military forces. He had no power to punish.
3 He was not in the highest echelons of government. He was not an architect
4 of the campaign of persecution. He was not the prime mover in it. He was
5 a civilian. He was a regional political leader, but not the only one.
6 So what was he convicted of? Well, it wasn't based upon
7 participation at the highest levels of government. It wasn't based upon
8 the fact or the legal finding that he had the power, authority or
9 responsibility to direct, control, or shape the HVO or HZ HB policies, or
10 the execution of those policies, as charged. Instead, he was convicted of
11 offences and participation in events that were not charged anywhere in the
12 amended indictment. You can search high and low, and you won't see a
13 reference to the meeting of the 15th of April, 1993, which is the linchpin
14 of the conviction, paragraphs 630 and 631. These events are not charged
15 anywhere in the amended indictment let alone in detail as required.
16 Kordic repeatedly objected to the moving target case that the
17 Prosecution was mounting against him at trial. 20th of July; 3rd of
18 August; 25th of September; 12th of October, 2000. We've summarised some
19 of those on this. This is not an argument that was not -- that was
20 crafted specifically for the appeal. This was an objection that was made
21 contemporaneously at trial and on numerous occasions. In fact, the best
22 depiction of what this case was, was from one of the members of the Trial
23 Chamber who described this as a case of juridical impressionism, a very
24 eloquent and accurate visual image, as the Judge was making the point to
25 the Prosecution that the case cannot be constructed as we go along, but it
1 was. That's exactly what it was.
2 Couple of the -- a couple of examples. The Convoy of Joy. There
3 are ten paragraphs of the judgement devoted to this particular incident in
4 June of 1993, months after the principal events that are at issue in the
5 judgement. No mention of it anywhere in the amended indictment, but the
6 best example is the murder case that was mounted, the case within a case,
7 against Mr. Kordic, the alleged murder of Mirsad Delija on the 25th of
8 January, 1993. According to the judgement, the Prosecution case was that
9 Kordic was somehow implicated in this murder but found that his alleged
10 involvement had not been made out. Alleged where? Not in the amended
12 The law on this area is relatively simple. It's clear and it
13 should be. It comes from the Kupreskic appeals judgement which found that
14 there was a defective indictment in that case. And why? For the same
15 reasons as in this case. There was an additional detail in Kupreskic
16 which is particularly pertinent to this case. The Appeals Chamber
17 commented that it might have some reluctance to acquit an accused who had
18 been convicted simply because of a defective indictment, but it was
19 fortified in its conclusion that that should, nonetheless, be the result
20 in the case because the linchpin of the conviction in that case was the
21 testimony of a single witness, uncorroborated, Witness H, just like in
22 this case.
23 However, Witness H was not a convict. Witness H was a victim,
24 completely candid, a young lady with no criminal record, who did not
25 relate hearsay but related percipient first-hand testimony, visual
1 identification testimony found not to be of sufficient basis by the
2 Appeals Chamber to found a criminal conviction. The parallels between
3 Kupreskic and this case are fairly striking.
4 What are the legal tests? To evaluate an indictment, you must see
5 whether it sets out the material facts, sets out the material facts of the
6 Prosecution case with enough detail to inform a defendant clearly of the
7 charges against him so that he can prepare his defence.
8 Let's go back to the decision on the 98 bis motion from the Trial
9 Chamber. What was the case according to the Trial Chamber? Participation
10 at the highest levels of government. "Prepare your case accordingly,
11 Mr. Kordic." That's what we did.
12 Pleading in detail is a must. If you know the identity of the
13 victim, the time and place of events, you've got to allege it. Here this
14 was the fifth Lasva Valley case. There were no identifications of
15 specific events, no identification of any asserted victims by name,
17 More importantly, it's essential, as the Rasevic decision just a
18 few days ago emphasised, that it's essential for the accused to know from
19 the indictment just what his proximity to the events at issue is. He's
20 got to know if he's alleged to have committed crimes, what crimes, when,
21 and how. Again it might be thought that that is a relatively elementary
22 proposition, and we submit that it should be elementary. That's exactly
23 what an indictment is supposed to do. It's supposed to tell you, "You
24 committed a crime. Here's when, here's how, and here's who the crime was
25 committed against." And this indictment just doesn't do it.
1 The only exception to that general rule of pleading is, and we
2 fully recognise it, that where the sheer scale of the alleged crimes makes
3 it impracticable to require a higher level of detail, then that level of
4 detail does not have to be given, but here it was hardly impracticable
5 after, as I have said, four full trials.
6 The Prosecution did change its case in mid-trial from a case of
7 participation of the accused at the highest levels of government, over 31
8 municipalities and Zenica, over three years to two hours in one afternoon
9 on one day in General Blaskic's office. What happened there? Who knows.
10 There wasn't any evidence of that. Who said what? Who knows. The Trial
11 Chamber didn't know. This Appeals Chamber don't know. No one knows. Who
12 saw Kordic actually in the meeting? No one who testified directly. All
13 we've got is hearsay testimony from Witness AT.
14 These were the material facts: That there was a meeting held in
15 the office of General Blaskic on the 15th of April, 1993, at which
16 planning, instigation, and ordering of crimes occurred. Those were the
17 material facts. Where were they alleged? Nowhere in this amended
18 indictment, but they were alleged in a corrected amended indictment filed
19 in the Ljubicic case. Paragraph 23 of that case alleges specifically the
20 meeting on the 15th of April, 1993, presumably now based upon the
21 testimony of Witness AT.
22 Now, the Prosecution is expected to know its case before it goes
23 to trial. This is an elementary principle outlined in the Kupreskic
24 appeals judgement. "If it doesn't plead material facts with enough
25 specificity, doubt must arise as to whether it is fair to the accused for
1 the trial to proceed. It is not acceptable for the Prosecution to omit
2 the material aspects of its main allegations with the aim of moulding the
3 case against the accused in the course of the trial depending on how the
4 evidence unfolds." That's exactly what Kupreskic said, but what happened
5 here? It did -- the Prosecution did precisely what Kupreskic teaches is
6 not permissible. It omitted the material facts with the aim of moulding
7 the case against Kordic depending on how the evidence unfolded, and that's
8 what happened.
9 The allegations in Kupreskic, just as in this case, were broad and
10 imprecise, but actually, if you take a look at Kupreskic, the allegations
11 were even more specific than in this case. Specific dates were mentioned
12 in the amended indictment in that case. Specific allegations about the
13 accused's asserted involvement in paragraph 9 of the indictment in that
14 case. Much more specific than in our amended indictment in this case,
15 Your Honours.
16 The identities of the victims were known in Kupreskic. They were
17 nowhere alleged in this case. In fact, the case against Zoran and Mirjan
18 Kupreskic "was dramatically transformed from alleging integral involvement
19 in the preparation to alleging mere presence when the crimes occurred."
20 And that's exactly the kind of transformation that occurred here. The
21 amended indictment in no way particularised what form the alleged
22 participation took, nor does it in Kordic's case.
23 Similarly, and I will defer to Mr. Smith on this, the persecution
24 charges are framed in the amended indictment in the broadest conceivable
25 way. They are umbrella charges, but the Kupreskic -- in fact, the
1 persecution charge was defined in the judgement in paragraph 28 to be the
2 broadest count in the amended indictment.
3 The Prosecution must particularise the material facts relating to
4 persecution. If it does not, then the -- then the indictment is
5 defective. Persecution cannot -- cannot because of its nebulous character
6 be used as a catch-all charge. Pursuant to elementary principles of
7 criminal pleading, it is not sufficient for an indictment to charge a
8 crime in generic terms. An indictment must delve into particulars. And
9 that's what we have here, a defective indictment.
10 Examples of defective indictments, more specific, ironically, than
11 in our case. The Kunarac case, for example, there was a rape of one
12 witness, FWS-50, that was nowhere alleged in the amended indictment. The
13 evidence relating to this was disregarded by the Trial Chamber. The same
14 thing in Naletelic. Evidence regarding the destruction of the mosques in
15 Doljani and Mostar disregarded because they were not alleged anywhere in
16 the indictment, unlike the destruction of a mosque in Sovici. So the
17 Prosecution knew how to plead the destruction but it failed to do so with
18 respect to Doljani and Mostar so those incidents were disregarded.
19 Similarly, we've outlined a portion of the Kupreskic oral argument
20 where the Prosecution said you need to put a list of the individuals you
21 have killed. That's a natural consequence of the crime that you are
22 pleading. Didn't occur in this case.
23 Now, what is a material fact? We are perfectly prepared to be
24 governed by the Prosecution's view of what is a material fact on this
25 issue. A material fact is a fact upon which the verdict is critically
1 dependent. That's according to one of the Prosecution's pleadings in the
2 Blaskic appeal in 2002, and we absolutely agree with it. In the
3 respondent's brief in Blaskic, the Prosecution said that the indictment
4 must set out the particular acts of the accused himself or the particular
5 course of conduct on his part which were alleged to constitute that
6 responsibility. They must be clearly identified. We agree. Take a look
7 at the amended indictment and reach your own judgement upon whether it
8 satisfies those criteria. We would submit it does not.
9 For example, examples of adequate indictments: Hadzihasanovic.
10 The specific dates of massacres by the ABiH and the names of the victims.
11 We've put a reference to an exhibit here, Exhibit Z1190. It's an ironic
12 exhibit in some ways because it is actually an indictment prepared by the
13 ABiH authorities against Mr. Kordic and about 29 other Bosnian Croats.
14 And if you actually take a look at that, prepared as it was under
15 difficult circumstances of wartime, it's pretty specific. It's got the
16 names of witnesses, it's got particular incidents, it's got particular
17 assertions of what Mr. Kordic supposedly did; participated in a planning
18 meeting sometime in mid-April 1993, according to that indictment. It's
19 far more specific than the indictment in this case.
20 Blagojevic: Detailed dates of times and meetings. But most
21 importantly, in Krstic, look at this: Specifically in the indictment it
22 was alleged that there were three meetings, not just on particular days
23 but at particular hours. 2000 hours on 11 July 1995. Three hours later
24 on the same day, 10.00 in the morning on the next day.
25 The Ljubicic corrected amended indictment, we would submit to the
1 Appeals Chamber, is a model of particularity. The material facts are
2 there pleaded in detail.
3 As required by Article 21(4)(a), the planning meeting in the Hotel
4 Vitez, specifically alleged. At least Ljubicic is on notice of the
5 material facts underpinning the charges against him. A privilege denied
6 to Mr. Kordic.
7 Judged by the governing legal tests erected by the Kupreskic
8 appeals judgement and by the other cases elaborating the Tribunal's
9 jurisprudence in this area, Kordic submits that the indictment in this
10 case, the amended indictment, is unacceptably vague. As a result, Kordic
11 was subjected to juridical impressionism, a case constructed as we go
12 along, to use the words of one of the Trial Judges, a moving target case,
13 to use Kordic's words at trial.
14 The Prosecution was permitted to mould its case depending on how
15 the evidence unfolded, and this was unfair. It's incompatible with the
16 fundamental guarantees assured to any accused by the Tribunal's Statute
17 that he has the right to a fair trial.
18 Let me turn now to Witness AT.
19 JUDGE SCHOMBURG: Do you think you can make it within the next
20 five minutes or -- because it would be not helpful for all of us if you
21 have to break your arguments on this issue.
22 MR. SAYERS: I appreciate that there is a tremendous amount of
23 information going before the Appeals Chamber, and I think that this would
24 probably be a better place, a more logical place to break, Your Honour.
25 JUDGE SCHOMBURG: Thank you. May I ask you one question
1 beforehand. Is the intention of the Defence -- you have shown us a number
2 of slides -- to give to the Prosecution and to the Judges copies of the
3 slides shown during your submissions?
4 MR. SAYERS: We had hoped, Your Honour, that that would be the
5 position of the Appeals Chamber because of the tremendous amount of
6 information that comes before your eyes. We have prepared CDs with all of
7 this information on it and they're available to be distributed to the
8 members of the Appeals Chamber and the Prosecution, yes.
9 JUDGE SCHOMBURG: We will discuss it during the break. The trial
10 stays adjourned until 11.00 sharp.
11 --- Recess taken at 10.28 a.m.
12 --- On resuming at 11.01 a.m.
13 JUDGE SCHOMBURG: Please be seated.
14 Mr. Sayers, before you continue, could you please be so kind and
15 provide the parties and the Bench with a copy of the US Supreme Court
16 decision Banks v. Dretke, because apparently it's not in the book of
18 MR. SAYERS: Your Honour, Banks v. Dretke was attached as Exhibit
19 number 1 to the response filed by Mr. Kordic in February of this year
20 regarding the supplemental reply, regarding Rule 68. We would absolutely
21 be prepared to provide additional copies.
22 JUDGE SCHOMBURG: Let's have another look. We tried to find it in
23 the book of authorities. Thank you.
24 MR. SAYERS: Happy to do so.
25 Your Honours, let me turn to Witness AT, in some respects a
1 central issue in Mr. Kordic's appeal. The importance of the evidence of
2 this witness cannot be underestimated. It was central to the planning,
3 instigating, and ordering convictions. The Prosecution has recognised the
4 importance of this testimony in its written submissions. Very important
5 evidence, extensively relied upon by the Trial Chamber, is how it was
6 described in the Kupreskic oral argument. The consolidated respondent's
7 brief filed in this case, the significance and consequence of Witness AT's
8 evidence cannot be disputed or underestimated.
9 And it's been recognised by the Appeals Chamber as well just a
10 month or two months ago in the Blaskic, 4th of March 2004 decision. The
11 Trial Chamber relied in the Kordic case on the testimony of Witness AT to
12 convict Kordic for the crimes in Ahmici.
13 Based upon the hearsay testimony of this witness -- as I've said,
14 a man convicted of murder, a man who admitted that he had lied to his own
15 Appeals Chamber and Trial Chamber, a man who tried to perpetrate a fraud
16 upon this Tribunal. Based upon the testimony of this witness, the Trial
17 Chamber reached these conclusions:
18 It was entitled to draw an inference that Mr. Kordic was involved
19 in the plan hatched at the meeting held on the 15th of April, 1993; that
20 Kordic was associated with orders for killings and detentions; he thus
21 would have approved of General Blaskic's orders to kill; and that these
22 orders would not have been given without political approval from the local
24 We submit that these findings are clearly erroneous. The chain of
25 command within the HVO was completely uncontroverted at trial. We'll
1 bring this up shortly. We've actually got the exhibits for the Trial
3 The chain of command was a conventional, vertical chain of
4 command. At its pinnacle was the supreme commander of the Croat Community
5 of Herceg-Bosna, Mate Boban. He was the supreme commander. He was the
6 president. I noticed in the introductory remarks by the Presiding Judge
7 today that the Appeals Chamber is of the view that Mr. Kordic was the
8 vice-president of the HZ HB. That in fact is not the case. He was the
9 vice-president of the Presidency of the HZ HB. It sounds like an
10 artificial distinction, but it really is not. The supreme commander of
11 the HZ HB -- of the HVO was the president of the HZ HB. The president of
12 the HZ HB also happened to be the president of the legislature, of which
13 Mr. Kordic was one of the two vice-presidents. But the supreme commander
14 had under him the Defence department headed by Bruno Stojic. Under the
15 Defence department was the Main Staff of the HVO, headed at various times
16 by Brigadiers Petkovic, Praljak, and Roso. Underneath the Main Staff were
17 the four operative zones, each headed by its own commander; in the CBOZ
18 case, General Blaskic; and under the operative zones, various commanders -
19 brigade commanders, military police, and so forth.
20 Did the chain of command operate in a vertical fashion? It did.
21 The local political leaders played no role in any of the cease-fire
22 negotiations. Here's an example in the cease-fire agreements that led to
23 the conclusion of the fighting in April of 1993. D83/1 is an order from
24 the supreme commander of the HVO, Mate Boban, to the HVO Main Staff in
25 Mostar. On the same day, having received that order, the Main Staff
1 issues orders to each of the commanders of the operative zones. And
2 that's Exhibit D84/1. And on the same day, having received orders from
3 his direct military superior, Brigadier Petkovic, in the case of the
4 Central Bosnia Operative Zone, Colonel Blaskic at that time issued Exhibit
5 Z715 to all of his subordinate brigades, including the 4th Battalion of
6 military police, to cease-fire.
7 So there you have it. Chain of command operates in the expected
8 conventional vertical fashion, with no involvement of the local political
9 leaders. And it's not clear from the judgement why the Trial Chamber
10 concluded that local political leaders, or any input from local political
11 leaders in this vertical chain of command actually occurred.
12 Now, if I might request that we go into closed session for just --
13 or private session for just a minute.
14 JUDGE SCHOMBURG: Please, private session.
15 [Private session]
12 [Open session]
13 JUDGE SCHOMBURG: Please continue.
14 MR. SAYERS: As I've stated, the Kunarac appeals judgement
15 emphasises the importance, central importance, of contemporaneous
16 objections. Contemporaneous objections to the testimony of this witness
17 were registered in writing and orally. Hearsay evidence is, of course,
18 admissible under the law of this Tribunal. But it must be reliable
19 evidence. The Trial Chamber is required to pay special attention to
20 indicia of reliability, and ordinarily, hearsay evidence is entitled to
21 less weight than direct testimony. Although admissible, it's rigorously
23 In the sister Tribunal, the ICTR, it has been stated that such
24 testimony is to be assessed with caution. Akayesu appeals judgement.
25 Commentators have made the observation in the context of European Court of
1 Human Rights jurisprudence that it would not be fair to convict an accused
2 based solely on hearsay evidence, especially where the accused did not
3 have the chance to confront and examine the witness.
4 Now, who was the witness in this case? The witness in this case
5 was actually Ljubicic and not Witness AT. And I've put the central
6 testimony on this slide here. "I did not see him with my own eyes." This
7 is as to Mr. Kordic. Didn't see him any time. "My knowledge comes from
8 Pasko Ljubicic." Who, of course, Witness AT, with his professional
9 background, at that time knew not to be available. Absolutely perfect
10 insulation for the witness, attempting to buy a discount from his
11 sentence, having fought in his corner 'til the last, having been
12 unsuccessful in foisting upon the Trial Chamber and the Appeals Chamber a
13 perjured alibi defence, comes up with a story that is uncheckable because
14 the declarant, Mr. Ljubicic, at that time, anyway, was not available. He
15 was a fugitive from justice.
16 What evidence was there of who said what at this central meeting?
17 I've said before, I'll say again, it deserves emphasis. There was no
18 evidence. No evidence from anyone who was there, but there was evidence
19 to controvert it. Two of the putative attendees, or at least one of the
20 putative attendees and one possible attendee specifically controverted the
21 testimony of Witness AT at trial. One was Zoran Maric. We've put his
22 testimony on the screen, TR27956. Never heard there was a meeting, was
23 not at this meeting.
24 What kind of a witness is Mr. Maric? He has no criminal record.
25 He's a former president of the parliament of the Central Bosnia canton of
1 the Federation. He is a currently member, I believe, of the parliament of
2 the Republic of -- or the Federation of Bosnia-Herzegovina. No reasoned
3 decision was articulated by the Trial Chamber of why this testimony was
5 The second person identified as a possible attendee was Jozo
6 Sekic. We called him in rejoinder, just as we called Mr. Maric. He too
7 denied: "I wasn't at the meeting. Furthermore, even though I was the
8 president of the HVO civilian government in Novi Travnik, I never heard of
9 any such meeting, and to my knowledge, no one from Novi Travnik was
11 Again, it bears mentioning that the jurisprudence on this point is
12 particularly important. Single witness, uncorroborated testimony,
13 especially when it's hearsay, must be rigorously scrutinised. The Trial
14 Chamber, according to the Kupreskic appeals judgement, must be
15 particularly rigorous in the discharge of its obligation to assess the
16 credibility of the testimony before it.
17 And here, as the judgement says, there was no direct evidence
18 supporting the account given by Witness AT of this meeting. It is
19 literally uncorroborated hearsay.
20 Now, the law of corroboration in this Tribunal is relatively well
21 recognised. We fully recognise it. The testimony of a single witness on
22 a material fact does not require, as a matter of law, any corroboration,
23 and that's true. That's the general declaration of legal principle that
24 governs this particular part of Kordic's appeal. But it's absolutely
25 clear when the Appeals Chamber considers how other Trial Chambers and how
1 other Appeals Chambers have actually approached this issue of the
2 necessity of corroboration or the importance of corroboration, that the
3 absence of corroboration in this case is particularly significant.
4 Cases in which factual findings in other cases have been
5 overturned are fairly legion in this Tribunal. For example in Delalic,
6 factual findings were overturned by the Appeals Chamber, despite the
7 burdens of persuasion on appeal that attend an appellant. In Kupreskic
8 the Appeals Chamber noted that corroboration assumes greater importance
9 when single witness testimony is involved. Here, even though the
10 Prosecution tried to argue that the testimony of Witness HH was
11 corroborated in some general details, the Appeals Chamber insisted no,
12 that was not corroboration, because corroboration must be specific. It
13 cannot be general. Therefore, the testimony of Witness JJ in Kupreskic
14 was found not to amount to corroboration as a matter of law. As a result,
15 the Appeals Chamber, as I've said, was fortified in its decision to
16 dismiss the indictments or to acquit Zoran and Mirjan Kupreskic because of
17 defective indictments. In addition, the presence of the central testimony
18 in that case, the linchpin of the testimony against them, was not found to
19 be reliable.
20 Similarly, Krnojelac, Vasiljevic, Krstic; factual findings
22 We are fully aware of the jurisprudence that governs requests to
23 this Appeals Chamber to overturn factual findings made by a Trial Chamber.
24 The Aleksovski appeals judgement outlines those principles in paragraph
25 63. In Delalic, for example, the -- even though there was a huge amount
1 of evidence about the evil actions of Delic and the numbers of times that
2 he had been involved in beatings. As to a particular incident of
3 beatings, the Appeals Chamber found that no reasonable tribunal of fact
4 could have found on the evidence presented that he had participated in
5 that incident.
6 In Kupreskic, as I've said, even though the eyewitness presenting
7 identification testimony was found to be confident and forceful, her
8 testimony was not shaken in cross-examination, the same formula used in
9 paragraph 630 of the trial judgement in this case, and I might add in
10 paragraph 725 of the judgement insofar as Witness Y is concerned. Despite
11 that, despite the fact that she had no criminal record, despite the fact
12 that it was eyewitness testimony rather than hearsay, this was found not
13 to be a sufficient basis upon which to found a conviction.
14 There were inconsistencies in her prior statements. She had added
15 new details in her testimony, not found in her prior statements, and
16 that's very significant because, as the Appeals Chamber will know from
17 comparing the prior statements of Witness AT to his trial testimony, he
18 added details, added filigree, added items of information designed to
19 impart a more credible aspect to what he had said at trial from what he
20 had said in his prior statements. "New details supporting his claim," to
21 use the words of the Kupreskic appeals Judgement. His story underwent,
22 frankly, not a degree of development but an entire chapter of
23 development. It was subject to elaboration and diversification, just like
24 Witness Agnes in the Simic contempt judgement.
25 The flip side of the analysis is in the Krnojelac case. There,
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 the commander of the KP Dom was acquitted of certain crimes connected with
2 detention facilities, and the Appeals Chamber said wait a minute; this
3 fellow was a commander of the facility. He walked by walls which were
4 bullet pockmarked and there were bloodstains all over them. There's no
5 way he couldn't be aware of the foreseeable risk that people were being
6 mistreated, people over whom he had supervisory responsibility.
7 Therefore, no reasonable trial Chamber could have acquitted him on that
9 In Vasiljevic, a particularly chilling example of cold-blooded
10 murder of people on their knees begging for their lives and shot to death,
11 as I've said in cold blood. Nonetheless, even there on particular
12 incidents of conviction such as prospective killings of workers from the
13 Varda factory, no reasonable tribunal of fact, based upon the evidence
14 presented, could have come to a conclusion of guilt beyond on reasonable
15 doubt. Similarly with respect to Vasiljevic's asserted membership in the
16 Lukic group. Again, uncorroborated testimony of Witness VG14. That alone
17 is not enough.
18 Most pertinently, in Krstic, here you've got an inference of mens
19 rea from certain circumstantial evidence, and again, the Krstic appeals
20 judgement is significant in this regard. You've got to have direct
21 evidence of the specific mens rea, and if you don't, if you're relying
22 upon the actions of the accused, which are subject to various
23 interpretations, one consistent with guilt, one not consistent with guilt,
24 the inference that has to be drawn is the one in favour of the accused.
25 The evidence fails to establish the direct involvement of the
1 Drina Corps in carrying out the executions and as such cannot be relied
2 upon as evidence of Radoslav Krstic's direct involvement in assisting the
3 executions. Similarly, the court rejected the very vague must-have-known
4 formulation in that case because General Mladic had a homicidal plan and
5 Krstic was one of his subordinates. Krstic must have known of the
6 homicidal plan and therefore mens rea could be inferred. The Appeals
7 Chamber appropriately rejected that vague formulation and, frankly,
8 criticised the vague phraseology of the Trial Chamber's findings in that
10 It should be clear by now that despite the Trial Chamber's
11 assertions that if General Mladic knew about the killings then Krstic must
12 have been known, the Trial Chamber did not actually establish from
13 Krstic's contacts with Mladic during the relevant period that Krstic, in
14 fact, learned of the intention to execute. And that's exactly what we
15 have here. The same principle of law applies to the inference involved in
16 this case.
17 Now, Witness AT himself was not at the April 15th meeting. He did
18 not hear what the participants said. He could not give any testimony
19 about that. He didn't see Kordic at any time. He didn't hear Kordic.
20 He didn't speak to Blaskic. And apart from his testimony, there was no
21 evidence that General Blaskic had given any orders to kill. This is the
22 same situation as envisaged in paragraph 98 of the Krstic appeals
23 judgement less than a month ago.
24 This witness testified, as I've said, just over a week before the
25 close of the evidence in this mammoth case. This witness was sprung on
1 Kordic after, months after the close of his case in chief. This witness
2 did not rebut anything that Kordic said. It did not rebut anything
3 that -- any evidence that Kordic introduced. This witness was providing
4 fresh evidence. And that, we would submit, was unfair right at the end of
5 the trial.
6 Prior appellate decisions in this regard: The Haskic decision in
7 July of 2000. The Prosecution had a number of theories of Mr. Kordic's
8 whereabouts on the 15th of April. One of them was that he wasn't really
9 in the Central Bosnia Operative Zone headquarters. He was actually in
10 Donja Veceriska, based upon the hearsay statement of a dead witness,
11 supposedly, Midhat Haskic. The Appeals Chamber said that this was not
12 sufficient as the only proof of the accused's presence in a particular
13 time at a particular place. It would not be possible to convict Kordic on
14 the basis of this statement alone if the evidence was uncorroborated.
15 The next appellate decision was the one dealing with Rule 94 ter
16 corroboration affidavits. Rule 94 ter has since been deleted, but it was
17 very useful in this case. It actually saves a lot of trial time. We
18 were able to introduce affidavits to corroborate facts directly, facts
19 that were testified about in examination by witnesses here. The Appeals
20 Chamber emphasised that proper protection of the rights of the accused is
21 overriding, but for corroboration to exist in terms of the affidavit
22 there's got to be a clear link between the fact described in the affidavit
23 and the fact testified about in the direct testimony of the witness.
24 General background does not amount to corroboration.
25 THE INTERPRETER: Could the counsel be asked to slow down a
1 little, please.
2 JUDGE SCHOMBURG: Would you please slow down again.
3 MR. SAYERS: My apologies. I know I'm a notorious offender on
4 this and I'll try my best to slow down.
5 One month ago, as to a particular incident in the Krstic case, the
6 Appeals Chamber noted, very pertinently, that it was hesitant to base any
7 decision on Mr. Deronjic's testimony without having corroborating
8 evidence. And as a result, the combination of the circumstances in that
9 case, the Appeals Chamber was cautioned against relying on that evidence
11 One particularly poignant example of the role of corroboration
12 comes from the Naletilic trial judgement, which we commend to the Appeals
13 Chamber's attention. I've excerpted a series of statements or
14 observations and rulings made by the Trial Chamber. In this case, the
15 Trial Chamber recited the general rule; single witness testimony on a
16 material fact does not require corroboration as a matter of law. Let's
17 take a look at how the Trial Chamber actually approached this issue.
18 Reports of members prepared by a particular battalion
19 corroborated, so reliable. Particular evidence corroborated by the Rados
20 diary, so reliable. Documents corroborate witness testimonies. Witness
21 statements corroborated by Exhibit PP. ECMM and UNPROFOR witness
22 testimony, corroborated by testimony of many eyewitnesses. And it goes
23 on. Example after example of where testimony is accepted because it's
25 But what happens when testimony was not corroborated? There were
1 two examples, and those are on the bottom of slide 180 here. Witness AF,
2 who placed Naletilic in the role of a perpetrator of torture and
3 mistreatment at the Sovici school was rejected because this testimony was
4 not corroborated by other witnesses. Similarly, the Chamber finds that
5 the testimony of a single witness that he was told about mistreatments at,
6 I think it's Dobrkovici, actually, lacked sufficient probative weight for
7 a finding by the Chamber.
8 In Kunarac, the testimony of Witness AS that she was repeatedly
9 raped by Kovac was corroborated by Witness FWS-87 and accepted. How could
10 it not be under the appalling circumstances of that case? But the Trial
11 Chamber said that as to the testimony of Witness FWS-48, there was no
12 supporting evidence to dispel the Trial Chamber's doubts about the
13 witness's testimony, and therefore not convicted based upon that.
14 In Vasiljevic, the trial judgement had more or less the same sorts
15 of observations. We've already gone over the Simic contempt judgement.
16 Even grave suspicion is not enough to establish proof beyond a reasonable
17 doubt; considerably more would be required before Mr. Avramovic could be
18 found guilty.
19 The same is true in the ICTR. We've summarised these on slide
20 184. Musema appeals judgement. The -- I hope I'm saying this right --
21 Ntakirutimana judgement and sentence of the Trial Chamber. Rutaganda, the
22 Niyitegeka judgement and sentence. That is a particularly interesting
23 case. In that case, Niyitegeka was found to have abducted a young girl,
24 spent half an hour in his car with her, kicked her out of the car, shot
25 her to death, and subsequently, based upon the hearsay testimony of a
1 witness that this accused had supposedly raped the girl while she was in
2 the car, the Prosecution asked the Trial Chamber to believe that the
3 offence of rape had been made out. Notwithstanding the murder,
4 notwithstanding the circumstances, the Trial Chamber said: That's not
5 enough. That's -- uncorroborated hearsay testimony is not enough to
6 establish that a rape has also occurred.
7 The same is true in terms of the jurisprudential argument we're
8 making at the ECHR. Jurisprudence: Hearsay testimony should be
9 approached with great caution. If it's not corroborated, it's not enough.
10 The Saidi case, drug trafficking case, stands for that proposition, as
11 does Kostovski. And most pertinently, the Unterpertinger case, where
12 there was actually a fairly significant amount of evidence in terms of
13 police reports, medical reports, and divorce files, but the out-of-court
14 statements made by two witnesses were the central feature of the
15 conviction, and that was found to be insufficient to found a conviction.
16 Now, let's consider what the Trial Chamber ruled in this case.
17 Because I think the approach taken by the Trial Chamber is absolutely
18 telling. Witness K: Testimony about what Mr. Kordic supposedly said in a
19 TV broadcast; rejected. No tape produced, so the Trial Chamber can place
20 no reliance on the hearsay evidence. Nura Pezer: No corroborative
21 evidence; testimony rejected. Witness AC: Without support about what
22 Mr. Kordic supposedly said in a TV conference, no reasonable -- no
23 reliance could be placed upon that. The same with respect to Witness H,
24 Witness AP, and Witness I. The only exception in this case, Witness AT.
25 Judged by a different rule. Yet, the Trial Chamber admits that this
1 witness could not bring himself to tell the full truth about his own
2 involvement. What the Trial Chamber really meant was, well, he lied about
3 what he was doing in Ahmici on the 16th of April, 1993, and as the Appeals
4 Chamber well knows, that's exactly what he did. He lied about what he was
5 doing in that village on that day.
6 Now, the lying alibi defence. The Trial Chamber observed that the
7 defence of the alibi was withdrawn and was not true, and then immediately
8 proceeds to the next proposition. With all due respect to the Trial
9 Chamber: Not so fast. Let's think about that. The Trial Chamber
10 appeared to try to draw a distinction between lies assertedly told by
11 lawyers representing an accused and the accused himself. It makes no
12 difference who told those lies, whether it was the lawyer or the accused,
13 because the principle of unity of counsel and client is absolutely
14 uppermost in this Tribunal. The principle of unity is fundamental to the
15 process of this Tribunal is an argument made by the Prosecution itself,
16 not once, but twice. December 2001; 6 of February, 2004. I might say
17 that the December 2001 pleading was filed two months after the
18 Prosecution's respondent's brief was filed in this case, where Kordic's
19 argument was depicted as being an overstatement and an exaggeration.
20 But there's no question. The principle of unity of identity
21 between client and counsel is indispensable to the workings of the
22 International Tribunal. So it doesn't make a difference who told the lie,
23 whether it was his counsel -- whether it was his counsel or whether it was
25 Could we have a brief private session, Your Honour?
1 JUDGE SCHOMBURG: Private session, please.
2 [Private session]
21 [Open session]
22 JUDGE SCHOMBURG: You may continue, please, Mr. Sayers.
23 MR. SAYERS: Since my time is short, I'm going to truncate this
24 discussion somewhat, Your Honours, but let me just turn to the first
25 meeting. There are three meetings that the Appeals Chamber must focus
1 on. The first is the asserted meeting of political and military leaders,
2 followed by a second meeting of military commanders, followed by a
3 gathering of military policemen in the TV room of the Hotel Vitez. As
4 I've said, no one knows who said what because no witness was called, other
5 than Brigadier Grubesic, who was supposedly present at the second
6 meeting. He testified that he was not, that he had never heard of any
7 such meeting.
8 Now, the orders to kill, the central orders in this case. When
9 were they given? Here's what the Trial Chamber concludes: Well, I
10 conclude -- we conclude there were two sets of orders, orders to kill,
11 orders -- military-aged males, and orders not to leave any living
12 witnesses. We conclude that one was given in the first meeting of
13 political and military leaders, but we're not sure about the second.
14 Here's the key testimony, Your Honours, and there it is in the words of
15 the witness himself: "Your Honours, the first time I heard of that
16 order, that all able-bodied Muslims had to be killed, was something that I
17 heard for the first time in the Bungalow." So how could the Trial Chamber
18 conclude that the first set of orders must have been given at the first
19 meeting, while the second set of orders, it couldn't be sure that it was
20 given at the first meeting? There is simply no evidentiary basis
21 whatsoever upon which the Trial Chamber could reach that conclusion.
22 Furthermore, with respect to Mr. Kordic's whereabouts, there was
23 evidence that he was actually present at his own headquarters on
24 Mount Tisovac, where he returned after the press conference on the 15th of
25 April, from Brigadier Grubesic. And we've summarised that evidence on
1 slide 210. Which raises some important questions about the law of alibi
2 in this Tribunal. When are you supposed to assert an alibi? You are
3 supposed to assert it as soon as practicable, under Rule 67(A)(ii), but in
4 any event, before the commencement of trial. How are you supposed to do
5 that if the indictment doesn't contain an allegation of where you
6 supposedly were at a particular time and what you supposedly did? You
7 can't. But Kordic submits that the evidence established, at least a
8 reasonable possibility, if he had been given a chance to assert an alibi
9 having been given a reasonably detailed indictment and had asserted it,
10 the evidence asserted -- established at least a reasonable possibility
11 that he was present on Mount Tisovac as stated by Brigadier Grubesic.
12 Just a few concluding comments with respect to Witness AT. There
13 are tremendous inconsistencies between the prior statements he gave and
14 between the trial testimony he gave. He stated in his first statement on
15 the 25th of May, 2000, that there was a possibility that Kordic was
16 supposedly present at the Hotel Vitez headquarters on the 15th of April,
17 1993. In his second statement -- actually, he said in his first
18 statement - I'm sorry - "I do not remember mentioning Dario Kordic being
19 present." That was what he said his first statement. That's all that he
20 had to say in his first statement about Kordic's asserted presence at that
22 In the second statement, this was elevated from that to, "It's
23 possible that he was present at the meeting," and then at the trial, for
24 the first time he said: "Well, Ljubicic told me he was present at this
25 meeting." That's the only state of the evidence. "I was told by Ljubicic
1 that he was supposedly present." As you can see, a degree of development
2 from "I don't remember Kordic being present" to, "Maybe, it's possible he
3 was there," to, "He was there." That's exactly the same kind of
4 elaboration and diversification of the story present in the Kupreskic
5 appeals judgement and the Simic contempt judgement.
6 Other inconsistencies. I won't spend too much time on this. The
7 witness's statement that he couldn't speak Croatian. "Even today I cannot
8 speak Croatian," he said in his 17th of August, 2000 statement. And why?
9 Because he actually issued an order in Croatian to the subordinate units
10 of the Jokers that he commanded, Exhibit D348/1. And look at the date.
11 The date of this exhibit was the 8th of April, 1993, one week before
12 Ahmici. What did he say about this document? Well, it's fictitious, it's
13 false, he said. It was planted. But at trial he recognised that the
14 signature was his.
15 Could we have a brief private session, Your Honours.
16 JUDGE SCHOMBURG: Please.
17 [Private session]
12 Page 238 redacted, private session
11 [Open session]
12 MR. SAYERS: For evidence to be admissible in this --
13 JUDGE SCHOMBURG: Okay.
14 MR. SAYERS: Please forgive my acceleration, Your Honours. I'm
15 due to hand off to Mr. Smith in ten minutes and I can see him champing at
16 the bit, so I'll try to move as quickly as I can.
17 Reliability is the golden thread that runs through whether a
18 document can be admitted in this case. This whole discussion concerns
19 specifically Exhibit Z610.1. If the evidence is not reliable, how can it
20 possibly be admitted in this Tribunal? Rule 89(C) demands that evidence
21 be reliable. And whose burden of proof is it?
22 THE INTERPRETER: Could counsel be asked to slow down, please.
23 Thank you.
24 MR. SAYERS: That it is incumbent upon any party to authenticate
25 the documents it tenders upon complaint of the other party. And
1 ironically, in direct examination of the very first witness called by
2 Kordic in this case, that precise point was made in no uncertain terms,
3 I'm embarrassed to say, to me. You've got to lay the foundation for
4 evidence for it to be admitted.
5 One good example of the problem caused by this is Exhibit Z437.1,
6 noted in the judgement at footnote 1052. The Defence points out that this
7 document is neither stamped nor signed, and even though no witness
8 authenticated it, no one said it was a correct document, the one person to
9 whom it was shown, (redacted) I don't recognise it and
10 it doesn't look like a genuine document to me. But what does the Trial
11 Chamber say? "We find it a genuine document there being no evidence that
12 it is not, despite the evidence of a stamp and a signature."
13 Your Honours, it's not the -- it's not the obligation of the
14 Defence to prove that a document is not genuine. It's the obligation of
15 the Prosecution to prove that it is if it tenders that document.
16 Furthermore, if the Defence tenders a document, it's its obligation to
17 prove that it's a genuine document, that it's reliable, of course.
18 The Tribunal's jurisprudence establishes that reliability is the
19 central component of admissibility, as I've said. We've summarised that.
20 The Tadic decision says that documents can be admitted for a limited
21 purpose, but if they're subsequently shown to be unreliable, then they can
22 later be excluded. Kordic made precisely such a motion with respect to
23 some of the -- two separate documents, Exhibit Z1406.1 and 1380.4, but
24 that was a completely unsuccessful endeavour on his part.
25 The 22nd of September, 2000 decision in this case establishes --
1 sets out the proposition that there is no legal basis for the applicant's
2 argument that proof of authenticity is a separate threshold requirement
3 for the admissibility of documentary evidence. That's in this case, and
4 the citation was to Delalic. When you go back and take a look at the
5 Delalic decision, it's true that legal proposition is cited. But there's
6 absolutely no legal citation for it. There's no footnote, no authority
7 cited. It's a pure ipse dixit. And with full respect to the Appeals
8 Chamber, Kordic suggests that that, ipse dixit, is wrong for the reasons
9 stated in the Galic trial judgement. It is indeed incumbent upon the
10 party tendering evidence to prove that it is authentic, reliable, upon
11 complaint of the other party.
12 Furthermore, in this case, Rule 89(E) should be taken into
13 account. The Trial Chamber had full power to require the Prosecution to
14 come forward with some proof of authenticity. It did not exercise its
15 powers under Rule 89(E), and it's hard to imagine a case in which those
16 powers more appropriately exercised or invoked than in this case, where
17 Exhibit Z610.1 was actually an important document and relied upon by the
19 This is exactly the kind of self-propelling evidence that has the
20 power to get to the Appeals Chamber or the Trial Chamber under its own
21 steam, to use Judge Robinson's very appropriate graphic analogy in the
22 Aleksovski dissent he filed in February of 1999.
23 Other authorities supporting Kordic's argument comes from the ECHR
24 and from other noted commentators. The Matogrosso report says the case of
25 Allan v. The United Kingdom, would not be admissible in evidence because
1 its author could not be found to vouch for its accuracy and be cross
2 examined on its contents.
3 THE INTERPRETER: Kindly slow down for the interpreters.
4 MR. SAYERS: -- authenticity has featured. Two examples, Your
5 Honour, in the Vasiljevic case. The Visegrad health centre records
6 tampered with, not reliable, exactly like Z610.1. No one testified that
7 the records were made contemporaneously. In that case, excluded. In this
8 case they come into evidence.
9 A name had been overwritten. "Lukic" had been overwritten with
10 "Bogic." In this case, as we know, the entry saying "war diary 15 April
11 1993" had been overwritten by someone on the January 29th 1993 entry. By
12 whom? Who knows. As you can see, we've highlighted on this slide where
13 that overwriting occurs. That's the English translation. Exactly the
14 same as in the Visegrad health centre records in the Vasiljevic appeals
16 By contrast in the same case, the Uzice hospital records found to
17 be completely reliable, but there was no evidence that they had
18 been tampered with and inconsistencies were convincingly explained by
19 witnesses. It didn't happen here, though.
20 The Prosecution has not been shy about making the same sorts of
21 authenticity objections that we ourselves made throughout the case. The
22 next series of slides summarise Prosecution submissions, and you'll see
23 again and again and again the Prosecution says, "We object to this
24 document. Unsourced, unsigned, unsubstantiated. We don't know who wrote
25 it. We have no opportunity to cross-examine. The provenance of the
1 document is unclear, anonymously written, veracity can't be determined.
2 Unsourced, unsigned." Again and again, in pleading after pleading. We
3 agree with the Prosecution with respect to all of those objections, every
4 one of them.
5 In this case, the Prosecution has said: "Well, we object to any
6 documents when we don't have the opportunity of challenging the
7 authenticity or opposing their use," to quote the ECHR jurisprudence in
8 the Allan case. And we completely agree with that too.
9 The same is true in the ICTR. In fact, the Appeals Chamber in the
10 Musema appeals judgement stated: "The party relying on a document must
11 establish that it has sufficient indicia of reliability."
12 That's where the burden of proof lies, upon the party tendering
13 the document. And here, Exhibit Z610.1 was subject to contemporaneous
14 objections in writing and orally. The authenticating witness produced by
15 the Prosecution couldn't authenticate it, Marko Prelec. With respect to
16 the overwriting, he said, "I have absolutely no idea who did it." He
17 didn't know who the duty-officer was. By the way, nor did Witness AT. And
18 given the location of Witness AT's office, his inability to identify the
19 duty-officer is particularly significant.
20 Mr. Prelec said, "I have no idea who wrote that entry in the
21 middle. I wouldn't know where to start." Witness AT: "Parts of it have
22 been faked." The Prosecution's own witness says parts of the document that
23 it tendered into evidence, after the testimony of this witness, had been
24 faked. So parts of it were unreliable. Brigadier Grubesic, same thing.
25 "Self-evident," he says. "Parts of it have been interfered with." The
1 question was actually asked by the Judge, "Well, Where does --" one of the
2 Judges, "Where does this document purport to come from? There's no
3 indication on it. What you're seeking to put in evidence here has no
4 indication whatsoever as to its origin." Exactly right. The Judge was
5 completely right.
6 So why did the Trial Chamber allow it in? Well, it's a document
7 contemporaneously made, it carries its own authenticity, and it's signed
8 by General Blaskic. Let's consider that for a minute and I'll end on this
10 There was no proof by anybody that it was contemporaneously made.
11 And in prior pleadings, the Prosecution has said, "The Prosecution is
12 unable to confirm, with respect to a particular document, that the
13 signature on the document belongs to Colonel Blaskic." So an objection
14 is made by the Prosecution. "We don't know whether this document is
15 signed by Colonel Blaskic or -- was signed by Colonel Blaskic or not."
16 Okay. If -- who actually authenticated the signature of the document in
17 this case, Exhibit Z610.1? No one.
18 Here's the signature page, Your Honours. Take a look at it. Two
19 signatures on there. Both purport to be those of General Blaskic.
20 They're both different. Which one is his?
21 Well, let's go to another document. That's a document containing
22 the uncontroverted, the authentic testimony of General Blaskic, an order
23 he signed on the 16th of April. Here are the three signatures, one, two,
24 three. All different. Which one is his?
25 Well, in conclusion, I can't tell you. The Trial Chamber couldn't
1 tell you. The Prosecution couldn't tell you, and didn't try. How are you
2 going to make the decision?
3 And what's the law on that? It's pretty simple. The mere
4 resemblance to other documents issued by the Crisis Staff is insufficient
5 to determine authorship, according to the Simic sentencing judgement. No
6 evidence to identify conclusively the signature of its president, Blagoje
7 Simic. Therefore, the document is inadmissible. And that's exactly what
8 the ruling should have been in this case. This document came into
9 evidence at the last minute in the December -- 1st of December 2000
10 decision, a large quantity of last-minute document were excluded. Why?
11 Because to admit them at this late stage of the case would be unfair and
12 because the Defence would have no opportunity now of cross-examining
13 anyone about this them.
14 But this document was treated differently? Why? For no good
15 reason. This document was subjected to precisely the same objections and
16 no one authenticated it, the signatures were not authenticated, there was
17 no evidence it was contemporaneously written. The authentication witness
18 couldn't authenticate it. Witness AT said parts of it had been faked.
19 How can you have any reliance in a document like that? But more
20 importantly, for the jurisprudence of the Tribunal, who bears the burden
21 of proof, of reliability of documentary evidence it tenders? It's got to
22 be the party that tenders the evidence.
23 Thank you very much.
24 JUDGE SCHOMBURG: May I ask my colleagues: Are there any
25 questions related to this chapter on fair trial, 68, and Witness AT, and
1 document 610?
2 Judge Guney, please.
3 JUDGE GUNEY: [Interpretation] Mr. Sayers, thank you very much for
4 the submissions you've just made, which I followed with great interest.
5 Having said that, I hope that you will agree with me if I say that the
6 precise identification of certain areas indicated by your client,
7 Mr. Kordic, is very important.
8 In your fourth ground of appeal, Mr. Kordic states that the Trial
9 Chamber found him responsible of a crime without having made the required
10 factual findings. First, it appears pertinent to ask the question, that
11 is, to specify the counts that he invokes there. I would be grateful if
12 you could clarify this. Thank you.
13 MR. SAYERS: Judge Guney, I would be delighted to answer the
14 question, but with the Appeals Chamber's permission, I defer that to my
15 colleague, Mr. Smith, who is prepared to answer that question
17 JUDGE SCHOMBURG: Thank you. I think Judge Guney agrees.
18 Judge Weinberg de Roca, please.
19 JUDGE WEINBERG DE ROCA: Mr. Sayers, as to the authenticity, has
20 Mr. Blaskic been asked if it is his signature?
21 MR. SAYERS: Absolutely not, Judge Weinberg de Roca. Nowhere
22 during his testimony, nowhere during the appeals hearing, no evidence
24 JUDGE SCHOMBURG: Judge Mumba, please.
25 JUDGE MUMBA: Thank you, Counsel, for elucidating the points,
1 factors, regarding the rule on practice of disclosure by the Prosecution.
2 Do you accept the assertion that, in spite of the rigorous provisions and
3 the pronouncements by various Trial Chambers and Appeals Chambers on this
4 obligation by the Prosecution, that in any event evidence in the public
5 domain is available to all, including the accused?
6 MR. SAYERS: I think the Judge is asking whether access to
7 open-session material may somehow alleviate the obligation of the
8 Prosecution to disclose.
9 JUDGE MUMBA: Yes.
10 MR. SAYERS: Our position is that it does not. If the material is
11 available in open session, it's got to be disclosed as soon as
12 practicable. The rule means what it says. It does not need to be
13 rewritten. That provision is very important. It does not need to be
14 deleted from the Rule. And here's why: In our trial, we experienced
15 extraordinary delays in obtaining access to portions of the open-session
16 testimony of the general. I'm not confident even today that we ever got
17 it all. Pieces of it were produced over a very protracted period of time,
18 in no particular order. The numbering of pages made it extraordinarily
19 difficult to match pieces up with what we had been given, because
20 occasionally we were given LiveNote transcripts, occasionally unofficial
21 transcripts, occasionally official transcripts. So I have to say, it's
22 extraordinarily difficult to be confident to say that we had access to it
23 all. Today, we have access to it all. It's all on the Internet, but it
24 was not available that way at trial. And that was why it was extremely
25 difficult to follow. But even if it had been, we should not have been
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 subject to those huge delays in getting this material ourselves when it's
2 the obligation of the Prosecution to disclose exculpatory material as soon
3 as practicable.
4 And let me just conclude by saying this: This was a case where
5 the Prosecution was seeking a life sentence against our client for command
6 responsibility under Article 7(3). Think of this: The testimony of the
7 military commander of the entire area that our client had no military
8 responsibility was withheld from us, never disclosed. When did we ever
9 get a disclosure of the open-session -- sorry -- of the open-session
10 testimony of the general? Never. And that's the same with
11 Witness C1 in Kupreskic, the 14th of July 2000 testimony of this
12 witness. When did we -- when was that disclosed to Kordic? Never. And
13 as I've said, the closed-session testimony of this witness, which actually
14 spanned a very considerable portion, 426 pages, was disclosed to us in
15 three stages. The first was on the 23rd of May, 2003.
16 JUDGE MUMBA: Yes. I think the other details were given in your
17 main submission. I just wanted to follow up that notwithstanding your
18 submissions that the amended indictment was still not clear, it didn't
19 specify the allegations, some of which the Trial Chamber had difficulty
20 with in making findings, notwithstanding that, don't you accept, Counsel,
21 that it is the duty of an accused person who has been served with an
22 indictment, which makes, albeit broad allegations as to his conduct, to
23 search, first of all in his memory, search where he is alleged to have
24 been at various times in the indictment, and also search for possible
25 material evidence in support of whatever his defence may end up being
1 because he too has a duty, in a way, to defend himself and also to be able
2 to effectively cross-examine Prosecution witnesses, right from the
3 beginning of the trial?
4 MR. SAYERS: The answer to your question, Judge Mumba:
5 Absolutely. The accused has a duty to search his memory when he's
6 asserted to have been present at a particular place at a particular time
7 in an indictment, and to conduct the necessary investigations. But that's
8 not what happened here. Don't forget, this amended indictment didn't
9 allege that he was present anywhere at a particular time. It asserted a
10 case of the broadest conceivable political/command responsibility against
11 Mr. Kordic over a wide swathe of territory during a three-year period.
12 And it's true, we specifically stated to the Trial Chamber, that's the
13 case we were directed to answer, that's the case we were told to answer.
14 And that's the case we did.
15 JUDGE MUMBA: Thank you.
16 JUDGE SCHOMBURG: Judge Pocar, please.
17 JUDGE POCAR: Counsel, I thank you for your arguments on several
18 issues. There is one point on which I would like to be clear as to your
19 submission, concerning the Witness AT, and that's the following:
20 Although, in general, the testimony of one witness does not need
21 corroboration per se, your point is, if I got it correctly, is that in
22 this case, that testimony indeed did require corroboration to be admitted.
23 Now, is that because it was hearsay evidence and that, in general,
24 hearsay evidence would require corroboration of a single witness, or
25 because, in this particular case, due to the fact that that witness was a
1 witness that may have a certain interest in the case, it required
3 MR. SAYERS: I think the answer to the question, Your Honour, is
4 both arguments. Hearsay testimony, generally, has less weight than direct
5 testimony. Does it require corroboration if it comes from a single
6 witness? It does not. That is the jurisprudence of this Tribunal. We
7 clearly recognise it.
8 But consider the circumstances of this witness: Under the
9 circumstances presented here, for all of the reasons stated in the
10 numerous cases decided by the Trial Chambers and by the Appeals Chamber,
11 looking at the testimony of a single witness, the circumstances of that
12 witness's testimony have to reinforce the Appeals Chamber's confidence
13 that that witness is absolutely true. If there are circumstances which
14 jeopardise that confidence, then the requirement for corroboration
15 elevates in importance considerably, and in no case more than this one.
16 As I've said, I'm not aware of any case in this Tribunal where any
17 conviction, let alone so many convictions, have been based upon the
18 uncorroborated hearsay testimony of a single witness, especially a witness
19 like this one.
20 JUDGE POCAR: Now, the point you make appears to be conceded by
21 the Trial Chamber in the judgement, and indeed, in paragraph 630, the
22 Trial Chamber looks at corroborating evidence. Finding it in
23 circumstantial evidence. Now, is that your point, that for the purposes
24 of corroborating testimony of a single witness, hearsay witness in these
25 circumstances, the reliance on circumstantial evidence is not enough, in
1 general terms, or are you challenging the value of the circumstantial
2 evidence relied upon by the Chamber, or both?
3 MR. SAYERS: To answer your questions directly, Judge Pocar, we
4 make a variety of arguments, but the most important ones are these: The
5 law of corroboration in this Tribunal is that corroboration of the general
6 circumstances of the witness's testimony is not enough. The corroboration
7 has to be focused specifically on the material fact asserted by this
8 witness. Now, the material fact asserted by this witness was Mr. Kordic's
9 asserted presence at this putative meeting, a meeting -- well, now, what
10 corroborating evidence is there relating to that? There is none. Not any
11 evidence, and I don't think that would be contested by the Prosecution.
12 What the Trial Chamber tried to do was to string together a set of
13 inferences and said: Well, we can -- you know, what happened later in the
14 day tends to show that what -- that the version of events told by Witness
15 AT has validity, the sequence of the orders, things of that variety.
16 That's not direct corroboration. It's not corroboration at all, actually,
17 under the law of the Appeals Chamber. And that's one of the points we are
19 And secondly, the importance of the requirement for corroboration,
20 I rely upon my previous discussions of that particular subject.
21 JUDGE POCAR: I thank you. Now it's quite clear what the point
22 is. I thank you.
23 JUDGE SCHOMBURG: As a follow-up: I think we are all aware that
24 the Trial Chamber warned itself, in paragraphs 619 through 630. Would
25 you, finally, come to the conclusion, and for what reason, that no Trial
1 Chamber of fact could, based on the conclusions and the circumstantial
2 evidence described in these paragraphs, could come to the conclusion that
3 the Trial Chamber was satisfied that Mr. Kordic was present at the
4 meetings of politicians?
5 MR. SAYERS: Thank you, Your Honour. With respect to that
6 question, that's a fairly easy question to answer, I believe. What
7 corroboration was there of the material fact about which this witness
8 testified, which was, A, that there was a meeting. Nothing but his own
9 unvarnished word. We had two rebuttal -- rejoinder witnesses who
10 controverted this witness, both no criminal records, both men of
12 Second, that orders to kill were issued at this meeting. What
13 possible basis was there for that conclusion? No reasonable tribunal of
14 fact could have reached that conclusion beyond reasonable doubt, because
15 there was no evidence to support it.
16 Then thirdly: What evidence to support that version of events
17 came from any of the other 240 witnesses in this case, 31 transcript
18 witnesses, hundreds of witness in four other cases, thousands of exhibits
19 in those cases and in this case, and, ironically, Exhibit Z610.1? In
20 fact, the Trial Chamber I think reminded -- interrupted me during my
21 cross-examination and said the witness will be able --
22 THE INTERPRETER: Could counsel be asked to please not to speed
24 MR. SAYERS: Sorry. Of a meeting between politicians and military
25 leaders. So, quite simply, there is actually no corroboration of the
1 material fact rather than the general circumstances of this witness's
2 testimony, and under those circumstances, especially given the, dare I
3 say, baggage of this particular -- that this particular witness carried,
4 no reasonable tribunal of fact could have reached a conclusion that that
5 meeting occurred beyond a reasonable doubt, let alone who said what at
6 it. Because what is the evidence? Even this witness couldn't tell the
7 Trial Chamber what it was. He didn't see Kordic, didn't hear him, didn't
8 hear anyone at the meeting. That's the state of the evidence. We don't
9 know what happened at it.
10 JUDGE SCHOMBURG: Thank you for these additional arguments. And
11 now Mr. Smith, please.
12 MR. SMITH: Thank you, Your Honours. I will address, for the
13 remainder of this session, chiefly the question of the findings and
14 whether the findings are properly supported, a question adverted to
15 earlier by, I believe, Judge Pocar. Before doing so, I will, however, say
16 very briefly two things about the nature of the judgement: First, that
17 what is charged in the amended indictment and found in the judgement is a
18 broad form of persecution. You've seen the formulation before. Central
19 Bosnia and beyond, extending to Zagreb, essentially persecution at the
20 national level. What the Trial Chamber had evidence -- or adduced,
21 advanced evidence to attempt to support, however, was a much narrower form
22 of persecution, limited to attacks on villages in the Lasva Valley, and
23 not indeed, really, as in many other cases, specifically aimed at forcible
24 removal, but attacks on villages. And I will talk at greater length about
25 that this afternoon.
1 The second major thing about the judgement is that the category of
2 intent involved for the joint criminal enterprise finding, in our
3 judgement, is category number 3, and that is because the Trial Chamber
4 infers, in paragraph 829, one of the crucial findings paragraphs, that
5 Kordic shared the discriminatory intent, as I have on the screen for you.
6 So it -- I'm sorry. If I said category 3, I meant category 1. Category 1
7 intent, in our judgement, and in our judgement, the joint criminal
8 enterprise finding goes only to count 1. Counts 3 through 43, the finding
9 in the -- on the subsequent pages of the judgement, paragraph 834, appears
10 to be direct participation through planning, instigating, or ordering,
11 sometimes perhaps committing, but very difficult to determine, based on
12 the language used by the Trial Chamber in specific cases.
13 Let me turn, then, to this question of findings. Were proper
14 findings made by the Trial Chamber for each element of each crime, each
15 count, each location, and each date? The short answer to that question,
16 Your Honours, is no. And two things follow: Number 1, the convictions
17 must be reversed on these grounds alone. Number 2, the Trial Chamber's
18 decision cannot qualify as a reasoned decision. The first issue one of
19 substance, the second issue one of procedure.
20 Now, in an attempt to respond to Your Honour's request on this
21 point of findings, we have prepared a tabular analysis of the findings by
22 count, with the elements of each crime down the left side of the table.
23 And I would like to pass those out at this time, if we could have
24 assistance. And with the --
25 JUDGE SCHOMBURG: May I ask the Prosecution: Any objections?
1 MR. FARRELL: I'd prefer to see it before making any decision, if
2 you don't mind.
3 JUDGE SCHOMBURG: Could it please be passed first to the
5 MR. SMITH: Your Honour, may I have leave to explain it while the
6 counsel is examining it?
7 JUDGE SCHOMBURG: Of course.
8 MR. SMITH: Thank you. In the interests of time. We have set out
9 the elements for Article 7(1), individual participation, that is,
10 committing, ordering, instigating -- planning, instigating, or ordering,
11 and for Article 7(1) under the joint criminal enterprise theory. And we
12 have then set out along -- those elements down the left side and the
13 alleged locations along the top of the table. We have then also set out
14 the elements for each count individually on a separate page or pages, with
15 the elements down the left side and the villages alleged in the indictment
16 for each specific count along the top of the page. Then we have filled in
17 this matrix as best we could, indicating where we submit a finding was
18 made; where we submit, with blank, there was no finding made; and
19 commenting on the nature of the finding. Because in many cases, the
20 findings are conclusory [sic] only and there are -- there is technically a
21 finding. The Trial Chamber will say: The following counts are made out.
22 And so in one sense, there's a finding, because implicitly every
23 necessary element should have been taken into account. But that's a
24 conclusory finding and, in our judgement, it really does not make the
25 specific findings. We have scored that conservatively on the table by
1 saying: There's a finding there, but it is conclusory. We've also
2 identified implied findings, inferred findings.
3 And one other thing I will explain about the nature of the table:
4 We deal with mens rea for the underlying perpetrators in each of the
5 sheets dealing with an individual count, but we deal with the mens rea of
6 Kordic, Mr. Kordic, who is not the primary perpetrator in any of the
7 counts, under the rubric of mens rea for Article 7(1), committing,
8 planning, instigating or ordering, as it turns out, for the particular
9 situation, and for persecution under the Article 7(1) joint criminal
10 enterprise part of the table.
11 Now, at this point, I don't know whether the Prosecution is ready
12 to take a position.
13 JUDGE SCHOMBURG: Please.
14 MR. FARRELL: If it will assist the Court, of course, and if the
15 Court feels inclined to receive it. The only thing I would say is it's
16 quite honestly impossible to, at this point in time, make any assessment
17 of this, and this is no disrespect to Mr. Smith. I mean, it's just a
18 comprehensive document. I can't say whether it's accurate or not. And I
19 note that though it may not necessarily -- it's case specific, I note that
20 in the Krstic case, that the Prosecution attempted to file a summary of
21 the findings and the evidence and the Court in the Krstic case disallowed
22 this material which the Prosecution put forward in the Krstic case. But
23 if you'll find it of assistance. But one, it's impossible to tell. Two,
24 it appears to include in some of the slides submissions which are not in
25 the -- well, I have no idea whether they're in the brief, so we're not in
1 a position to really respond in detail. I'm sorry.
2 JUDGE SCHOMBURG: Maybe it will be of assistance for your response
3 later, because we know about the difficulties and to identify specific
4 locations. So if you don't object, and with a view to the watch, I think
5 we can decide after the break. But I see there's a question.
6 [Appeals Chamber confers]
7 JUDGE SCHOMBURG: So let us come back to this after the break, and
8 I think it doesn't make any sense that you start your submissions right
9 now. Therefore, the trial stays adjourned until 2.00.
10 --- Luncheon recess taken at 12.28 p.m.
11 --- On resuming at 2.02 p.m.
12 JUDGE SCHOMBURG: Please be seated. Before you start, Mr. Smith,
13 we discussed it briefly during the break, the issue of the charts you
14 wanted to provide us with, and of course the Rules provide for written
15 submissions before trial and oral submissions. If the intention is to
16 support your oral submissions by charts in the way it was done by
17 Mr. Sayers, I think there would be no problem and then we can ask later on
18 the Prosecution whether there are any objections to deliver copies of this
19 supporting flips or charts to the Bench, and to the Prosecution, of
20 course, but of course it can't be a third chance to provide a written
22 So can you please tell us what you intend and how you intend to
24 MR. SMITH: Yes, Your Honour. It is intended as an aid to
25 argument, as the rest of the slide presentation is, and it was prepared
1 expressly as the result of a suggestion during the pre-trial process for a
2 very complicated set of conclusions and findings in the opinion, and I
3 simply intend to argue the main conclusions about the findings in answer
4 to Judge Guney's question based on the analysis that is in this document
5 which then the Appeals Chamber and the Prosecution can examine.
6 JUDGE SCHOMBURG: Right. If it's in support of your submissions,
7 and indeed it's true, in preparation of this appeal hearing. Of course,
8 and I didn't ask to go through count by count but to be very detailed, and
9 I think we all have to be very precise on the arguments to be found or not
10 to be found in the judgement, and therefore, I think there is nothing
11 wrong if you continue this way and then let's ask afterwards the
12 Prosecution whether there are any objections or not and maybe only
13 tomorrow. Let's wait and see.
14 Please continue and, in general, we had only already one request
15 by the Prosecution that it might be that Prosecution needs a little bit
16 more time. If you need a little bit more time, it's no problem. It's
17 better to be more precise than to be more fast. Thank you.
18 MR. SMITH: Thank you, Your Honour. Let me proceed, then, by
19 addressing the findings in this case, and in effect to answer the question
20 put by Judge Guney.
21 The Trial Chamber, as Your Honours will recognise, made conclusory
22 findings in many cases. The Trial Chamber was wrong on reciting evidence
23 that was said was advanced by the parties. They did that at great length,
24 the Prosecution on the one hand, the Defence said on the other hand. Then
25 they had a tendency to append to that long recitation of evidence very
1 short, brief paragraphs in which their own findings were asserted. Those
2 were generally short, sketchy, conclusory, and did not disclose the
3 reasoning of the Trial Chamber nor provide any real explanation either to
4 Mr. Kordic or to the Appeals Chamber of the basis on which the conclusions
5 were reached.
6 Let me give examples. There are no express findings in most cases
7 in this judgement on most of the elements for most of the locations, et
8 cetera. The best example may be paragraph 649 of the judgement. This
9 constitutes the main set of factual findings on the main underlying crimes
10 at the main locations. It deals with counts 3, 4, and 7 through 20, and
11 it deals with the Lasva Valley villages, the heart of the case, Ahmici,
12 Nadioci, Pirici, Santici, Vitez, Stari Vitez, and Veceriska. This is a
13 seven-line paragraph which makes six key points.
14 First, it rejects the Defence case out of hand; second, it says
15 that the evidence clearly points to organised HVO attacks in these areas.
16 The Defence can agree to this. There were, in fact, HVO attacks,
17 simultaneous ABiH attacks, in our submission. But this does not say that
18 these attacks were against civilians or in any way illegal. They were
19 military actions and this sentence says nothing more.
20 It says that its findings must be seen against the background of
21 the 15 April 1993 deadline, but that is an assertion which is belied by
22 the finding in the Naletilic trial judgement at paragraph 23 that there
23 was no deadline as such as of 15 April 1993, as the Trial Chamber relates.
24 Second, the Trial Chamber says that its findings must be seen
25 against the background of the wider attack on Vitez and the Muslim
1 villages of the Lasva Valley. But this is precisely what is at issue in
2 the finding. This is circular, to see the finding in light of the matter
3 at issue in the finding.
4 Then the Trial Chamber simply lists counts, lists localities, the
5 seven villages, and then makes an attempt to bridge over its lack of
6 specific findings by saying "The underlying offences are made out." That
7 phrase "made out," in gross with no reasoning. That's all. No express
8 findings, much less reasons, for all of the multitude of necessary
9 findings as to elements and counts and villages in that matrix encompassed
10 in that one generalised statement.
11 But let's go beyond this one example to other examples in the
13 There are, for example, no express findings on the Article 5
14 general elements that I could find in the opinion. There is no express
15 finding that there was an attack on a civilian population squarely
16 addressed. There is no finding that there was a widespread attack
17 squarely addressed, or a systematic attack squarely addressed.
18 Another example: There are no express findings of crimes -- that
19 crimes, relevant crimes, were committed against "civilians," or against
20 "civilian objects," or against "protected persons." And this matters,
21 because in detention, they simply say "Bosnian Muslims." That's the
22 quotation. Bosnian Muslims were detained. They take no position on
23 whether they were civilians or protected persons or combatants or whether
24 the defendants couldn't tell the difference at the time of the detention.
25 There is also no express finding of discriminatory basis for each of the
1 underlying persecutory attacks which, of course, are here, these attacks
2 against villages which are charged individually also as crimes in counts 3
3 to 43.
4 There is no express finding, for example, in count -- as to count
5 4 that the damage was "extensive" to civilian property. There is no
6 express finding for count 38, that the damage at the relevant locations
7 was "large scale," that it was "not justified by military necessity," or
8 that it caused "grave consequences to the victim."
9 There was no express finding as to counts 21 and 22, as I just
10 indicated, that it was civilians or protected persons that were detained,
11 simply a finding that it was Bosnian Muslims, undifferentiated. No
12 express findings for count 39 that there was appropriation with intent to
13 permanently deprive the victim, and no finding that what the victim was
14 deprived of had sufficient value that it caused "grave consequences" for
15 the victim.
16 This next example is particularly egregious. Paragraph 834(C), at
17 the end of the opinion dealing with the individual crimes 3 through 43,
18 finds Mr. Kordic guilty under counts 38 and 39 at a number of locations.
19 But if you will look at paragraph 809, which backs up those findings for
20 counts 38 and 39 in paragraph 834(C) and compare the findings, what you
21 find is that there are 15 villages for which Kordic was convicted either
22 under count 38 or count 39 or both which -- for which there is no
23 necessary factual predicate finding in paragraph 809 because they are
24 omitted by the Trial Chamber in paragraph 809. And these include
25 Kiseljak, Visnjica, Gacice, Behrici, Svinjarevo, Gomionica, Gromiljak,
1 Polje Visnjica, Rotilj, Tulica, Han Ploca, Grahovci, Veceriska, Donji
2 Veceriska and Jajce.
3 JUDGE SCHOMBURG: Sorry, may I interrupt you. We have to be
4 extremely careful what this Appeals Chamber is seized of at this point in
5 time. You should be aware in relation to count 39, that already the Trial
6 Chamber found at paragraph 35 of the 98 bis decision of 6 April 2000 that
7 in relation to a number of villages or hamlets mentioned by you, there was
8 no case to answer. In addition to this, on the Status Conference the 6th
9 of May, 2004, the Prosecution conceded that the Trial Chamber did not make
10 necessary factual findings in relation to Vitez and Donja Veceriska. So
11 therefore, we should be extremely careful what we are still seized of.
12 MR. SMITH: Indeed. You're exactly right, Your Honour. I have
13 tried to be, and Your Honour should check my list against both paragraphs
14 809 and paragraph 834(C) and these other dispositions to make certain that
15 I have it right and carve it down if I have missed something. As I
16 indicated earlier, this is very complicated, and we have been responding
17 as rapidly as we could to Your Honour's request.
18 There is no finding at all as to Kordic's -- no express finding as
19 to Kordic's mens rea as to counts 3 through 43 for Kiseljak villages, Novi
20 Travnik, Busovaca, and Merdani. There is no express finding of Kordic's
21 mens rea as to counts 3 through 43 for Ahmici, any of the other Lasva
22 Valley villages, Ocehnici, detention offences, counts 38 and 39, and count
23 43. The only express finding on mens rea at all in the opinion relates to
24 count 1, persecution, in paragraph 829 of the decision where it is found
25 that Kordic was "acting sharing the discriminatory intent" of the joint
1 criminal enterprise, the basis for our assertion that the conviction rests
2 on a category 1 offence.
3 There are also imprecise and inconclusive findings in many cases.
4 For example, and I will simply list several, paragraph 586 relating to
5 Busovaca. Kordic is said to be "implicated in" the attack as a "leader
6 exerting both political and military authority." From this finding, it is
7 not possible to determine whether the Trial Chamber meant that he
8 committed the offence because he was present in Busovaca during the
9 fighting and he was not present at most of these locations for most of
10 these events. Was it therefore direct commission they had in mind? Did
11 they think that he planned it or that he instigated it or that he ordered
12 it? One doesn't know, and as I will argue subsequently, there isn't
13 evidence in any case in any of those situations.
14 Paragraph 631. Kordic "associated with" the giving of an order.
15 Again, imprecise, inconclusive.
16 Paragraph 669, Kordic "involved in" attacks because "associated
17 with" the orders. Paragraph 726, Kordic "associated with" the giving of
18 orders. And paragraph 800, "Bosnian Muslims" found arbitrarily imprisoned
19 without, as I indicated earlier, distinctions made as to the relevant
20 legal categories of person involved.
21 Thirdly, besides lack of findings altogether or conclusory, and
22 the second category I just covered, imprecise and inconclusive findings,
23 there are inconsistent findings in the opinion.
24 Paragraph 576, Merdani, for example. Evidence found by the Trial
25 Chamber to be insufficient for finding an attack on either civilians or
1 civilian objects at Merdani. Yet they found the evidence sufficient for
2 count 38, wanton destruction, and that in fact was based simply on
3 evidence by a witness who saw Merdani being shelled from a distance. No
4 other evidence as to any of the necessary elements of that crime.
5 I have already mentioned the inconsistency between paragraphs 809
6 and 834(C) and the list of villages.
7 In paragraph 842, Kordic is held responsible for detention crimes
8 in areas for which he had "political responsibility," but he had no --
9 there's evidence that he had no such responsibility for Kiseljak, and even
10 Prosecution witnesses agreed that he had no political authority in any
11 real sense in Vitez, and that eliminates the necessary predicate for
12 detention findings at every location except Kaonik in Busovaca
14 JUDGE SCHOMBURG: Sorry to interrupt you again. On the transcript
15 it reads in paragraph 842. 842 is --
16 MR. SMITH: It should be 802, Your Honour. Thank you.
17 One other potential inconsistency I will mention. Should the
18 persecution count be upheld, which Kordic argues strongly it should not
19 be, but should it be, then counts 7, 10, and 21 become cumulative under
20 the recent case law of the Appeals Chamber, because they are crimes,
21 individual crimes under Article 5 also charged as persecutory acts, and if
22 they are found as persecutory acts to uphold the persecution conviction,
23 then the Krstic appeal judgement paragraphs 230 through 33 indicates that
24 they are cumulative.
25 There are a number of legal conclusions in the judgement which are
1 not backed up with factual findings, and Your Honours have discussed
2 several in the pre-trial process. One in particular additional, however,
3 that I would mention. In paragraph 669, Kordic is found "involved in" the
4 April attacks on all of the Kiseljak villages for which he was alleged to
5 be guilty in April in Kiseljak, because of course there are two time
6 periods for Kiseljak, April and June. And the chief basis for that
7 holding is an order by Blaskic, which the Prosecution argues inferentially
8 refers to Kordic, but that order applies only to the village of Gomionica,
9 yet it is used as the basis for holding Mr. Kordic guilty as to all of the
10 other villages in the Kiseljak area in April.
11 These, then, are the chief arguments I would make from the table.
12 There are also a number of findings. In the interests of time I will not
13 go over them, but Your Honours should look carefully at them, where the
14 finding is only by inference and stated by the Trial Chamber only to be by
15 inference. The plan, the joint criminal enterprise for a campaign of
16 persecution is only an inference circumstantially arrived at. Kordic's
17 intent, sharing the discriminatory intent, in paragraph 829 is only an
18 inference circumstantially arrived at.
19 In short, necessary findings were not made. They were not
20 properly made. They were inconsistent in many cases. For this reason, in
21 our judgement, when you look at the matter count by count, not a single
22 count survives as a substantive matter. And secondly, this judgement is
23 not a reasoned opinion. It does not give Mr. Kordic the notice he is
24 entitled to on appeal to deal with the case as reasoned by the Trial
25 Chamber and the convictions against him, and it does not assist the
1 Appeals Chamber in its effort to take a hard look, as it now does, at
2 judgements on appeal in order to prevent invalidity of convictions,
3 prevent the omission of reversal where there is an invalidity in the
4 conviction, and to avoid a miscarriage of justice.
5 I propose now, Your Honour, to turn to the main substantive errors
6 by the Trial Chamber in its evaluation of counts 3 through 43 and then of
7 count 1, persecution, which I will tackle in the next period.
8 First, I would like to set out but very briefly the nature of the
9 Trial Chamber's errors to make clear that we are not simply re-arguing our
10 case below. And if you will look at the slide material now, you will see
11 that the first type of error we complain of at various locations in our
12 briefs and in arguments is that either there was no evidence at all for a
13 finding, there was no reliable evidence, or that there was no sufficient
14 reliable evidence.
15 Secondly, we sometimes believe that the Trial Chamber failed to
16 take into account critical evidence, and I am omitting the examples in the
17 interest of time.
18 Third -- let me go back a moment. The Trial Chamber sometimes
19 made erroneous evaluations of the evidence. And finally, there are many
20 categories where there were other reasonable inferences available on the
21 facts on a particular issue and the Trial Chamber failed to take the
22 inference most favourable to the accused, which is an error both -- that
23 is an error of law and involves an error of fact on the grounds that no
24 reasonable Trial Chamber should have done that.
25 All of the errors we deal with go to essential findings on
1 essential elements of the crimes at various locations and under various
2 counts. Thus they all demonstrate a miscarriage of justice, if we are
3 correct, as well as the invalidity of the conviction involved.
4 I turn next to the core of all of the counts, both persecution and
5 involving the individual crimes, and that is the allegations of illegal
6 attacks, HVO military attacks on villages. These are the basis both of
7 the individual crimes and, therefore, a fortiori, of the persecutory acts.
8 The central legal issue involved in these attacks is, in fact, whether or
9 not they were directed against legitimate military objectives and did not
10 cause civilian losses clearly disproportionate to the military objectives
11 achieved, because they are military attacks by soldiers. And the first
12 question is: Was this a legitimate attack against a military objective?
13 Or, on the contrary, was it, as the Prosecution alleges, an attack
14 directed primarily against civilians or civilian objects, depending upon
15 the relevant count, in which case it was not an attack against a
16 legitimate military objective.
17 If these -- if these were legitimate military operations without
18 disproportionate civilian damage, then they were not war crimes, nor were
19 they persecutory acts.
20 In short, even before the mid-1993 fighting, the Muslims - and I'm
21 now talking about the general context of this fighting - the Muslims
22 controlled much of the four Central Bosnia municipalities in which the
23 Trial Chamber found Croat persecution. From June 1993 on, the Muslims
24 controlled virtually all of the municipalities of Central Bosnia except
25 for four small Croat pockets, one of which, Vares, subsequently fell in
1 the fall. The outnumbered and surrounded Croat community in the Vitez,
2 Busovaca and other Croat pockets - the other two - suffered greatly in the
3 winter of 1993-1994, and came close to complete defeat before they were
4 saved by the peace agreement in the spring of 1994.
5 It is important, and I emphasise, it is important to consider at
6 the macro level the military context in asking one's self the question of
7 whether it is plausible, it is reasonable to believe that the Croat
8 community and its institutions in Central Bosnia, if you adopt the narrow
9 view of the persecution allegations and finding, would have set out to
10 persecute the much more numerous Muslims that surrounded them and cut them
11 off from the rest of the Croat community in Herzegovina.
12 In short, Your Honours, this is Central Bosnia. What may have
13 happened in Herzegovina is one thing. The question you are faced with is
14 the plausibility of a criminal plan, a joint criminal enterprise for a
15 plan of persecution, a campaign of persecution in Central Bosnia by this
16 community. It just doesn't add up before I even start talking about the
18 And I now want to turn to the first set of villages I will deal
19 with, and I will now deal with several villages and with the detention and
20 destruction of religious objects findings for the remainder of the hour,
21 Your Honour.
22 So let's turn to --
23 JUDGE SCHOMBURG: If need may be, please tell us. We could also
24 change the schedule that you can continue until 3.30. This would make no
25 problem at all. We don't want to interrupt you unnecessarily.
1 MR. SMITH: Will that throw us off schedule thereafter, Your
2 Honour? Because I have -- the reason I ask is I have, obviously, another
3 30 minutes, from 3.30 to 4.00, to deal with persecution and mens rea.
4 JUDGE SCHOMBURG: It's up to you to decide what fits best in your
6 MR. SMITH: The short of it is if it is extra time, I will take
7 it. If it is a rejuggling of time, I will take the break at 3.00 and
8 begin the discussion on persecution and mens rea at 3.30, Your Honour.
9 JUDGE SCHOMBURG: Thank you.
10 MR. SMITH: So I take it then I shall stop at 3.00.
11 Let's take the village attacks. Now, Mr. Sayers has already dealt
12 with Ahmici and the chief evidence at Ahmici, and I'm going to deal with
13 Nadioci, Pirici, and Santici, and then I'm going to deal with other
14 villages. And I do this in each case by listing the substantive offences
15 that are at issue so that that is clearly in mind, then examining the
16 Trial Chamber judgement and its reasoning. I will not repeat this orally
17 and I sometimes don't repeat it in slides, this business about the
18 reasoning, because it's the same in every case. The role is as a
19 political leader. The evidence is, in paragraph 834, as to the individual
20 counts, the Trial Chamber simply throws up its hands and says we rely on
21 the evidence already referred to as to persecution for findings for
22 individual crimes, and I will not dwell on that each time, nor the fact
23 that they generally reject the Defence case out of hand. I will also not
24 dwell each time on the background cited by the Trial Chamber, which I've
25 already addressed.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 So let me turn immediately to the evidence. In each of these
2 cases, after discussing the Trial Chamber's judgement, I go to the
3 evidence. First the convictions, then the Trial Chamber's judgement, then
4 the evidence.
5 These villages were guarded and defended. The Trial Chamber cited
6 evidence on Ahmici but not as to Nadioci, Pirici, or Santici. They never
7 cited any evidence that there was any massacre in these three associated
8 villages on the same scale as in Ahmici. And this goes to Your Honour's
9 inquiry in the pre-trial process as to whether there are factual findings
10 to back up the convictions of Mr. Kordic for counts 7, 8, 10, and 12 of
11 these villages in the judgement, and it is our submission that there is
13 Now, despite the Prosecution's arguments in brief that Ahmici is a
14 separate location from these three nearby -- is not a separate location
15 from these three nearby villages, I simply refer you to the judgement,
16 which treats these villages separately from Ahmici. So the evidence for
17 Ahmici does not go to the situation in these three distinct surrounding
19 In candour, I must tell Your Honours that while not in the
20 judgement, there was some evidence, not cited by the Trial Chamber, that
21 military-aged men, some of whom who had been on armed patrol the night of
22 the 15th and the morning of the 16th, were apparently killed in the
23 fighting. There was some evidence, secondhand, non-specific, suggesting
24 possibly some civilian casualties from in or around these villages. And
25 this is important, because Your Honours must focus on whether there is
1 actually evidence that there were civilians as opposed to combatants
2 involved where there's an alleged crime. Now, in Ahmici there clearly
3 were civilians. There's no question about it. And as executed, Ahmici
4 was clearly a war crime. The issue there is what happened in the planning
5 process, and we have argued Mr. Kordic simply had nothing to do with that
6 and was not involved. I should say also, Ahmici was, as we've argued in
7 briefs, a very strategic location. Notwithstanding that, the attack, as
8 executed, did constitute a war crime.
9 Now, there is notified as to Kordic's involvement in these Nadioci
10 attacks, Pirici and Santici. There is no evidence that a crime was
11 planned for these three villages at the -- any putative April 15th
12 meeting. Even if there were evidence that there was a crime planned as to
13 Ahmici, not so as to this and all of the other Lasva Valley villages.
14 In short, then, after coming to conclusions from the evidence, the
15 question is: What are the Trial Chamber errors? And we've tried to be
16 precise about this in each argument.
17 No recent decision, which I've already addressed and I won't
18 repeat. No proof beyond reasonable doubt of Kordic's involvement as to
19 these villages, because there is simply no evidence that he planned any
20 crime at these villages. And I summarise that on the slide.
21 No evidence that he ordered any crime. No evidence that he had
22 any authority to order any perpetrator, and no evidence of any deliberate
23 order by Kordic in execution of which any perpetrator committed any crime
24 at these villages. Indeed, no evidence of any intent or desire, much less
25 even awareness that there was going to be a crime. And this is true once
1 you get outside Ahmici and that meeting relating to Ahmici and all of the
2 locations. And of course, it's our submission that that evidence is
3 insufficient as to the meeting in Ahmici itself and Mr. Kordic's
5 Likewise, no evidence of instigation, simply lack of evidence.
6 Where is Mr. Kordic in all of this? And no proof of his mens rea.
7 And I turn to Vitez and Stari Vitez. And I am going to cover this
8 only very summarily. The story here is there is no evidence linking
9 Mr. Kordic to the Vitez, Stari Vitez fighting, no evidence that he had any
10 mens rea as to that fighting, and I should note that the damaged mosque in
11 Ahmici -- in Stari Vitez was being used by a sniper. That's what the
12 evidence shows.
13 And I turn now to the Novi Travnik situation. Now, in Novi
14 Travnik, you have heard already something about, and there's been a good
15 deal about in the briefing, the question of who was in charge at Novi
16 Travnik. And because Your Honours, I think, are aware of that issue and
17 up on it, I am not going to deal with it right now. Rather, I'm going to
18 deal with a very important issue.
19 You will notice there are only two counts involved at Novi
20 Travnik, count 38 and count 39, wanton destruction and plunder. And in
21 order to find that there was wanton destruction, there has to be evidence.
22 There is evidence that during the conflict, a number of Muslim-owned
23 buildings were burned or demolished. That evidence, however, is - and
24 cited by the Trial Chamber - seems to be secondhand. The gentleman simply
25 reports that it's his understanding that this took place, and it does not
1 establish in any case anything other than that he says those buildings
2 were damaged. It does not establish that the HVO troops caused any
3 relevant damage, does not establish that that damage was in the zone of
4 the fighting or not in the zone of the fighting. Indeed, it appears not
5 to be in the zone of the fighting, because the fighting ran through the
6 middle of town, and this appears to be elsewhere. And it does not show
7 the damage to be large scale. In short, as with so many of the findings,
8 virtually all of the findings, when you dive down and look at the specific
9 facts and the specific elements, it evaporates.
10 In short, Novi Travnik was an episodic flare-up over control of
11 the strategic military arms factory during which there simply isn't
12 adequate proof that there was -- there were violations of all of the
13 elements of counts 38 and 39, whatever you think about Mr. Kordic's
14 participation, and we know that he was not in command.
15 I will go on to Busovaca and Merdani. Our argument in Busovaca is
16 that there was an attack. There was fighting in January, no question.
17 The issue is whether there is proof of war crimes and of whether Kordic is
18 linked to any specific proved war crime and whether he had mens rea, and
19 there's findings and evidence of his mens rea as to any specific war
21 The conclusion that there were war crimes in Busovaca rests on
22 several bases: first, the testimony of Witness AS; secondly, an UNPROFOR
23 report; thirdly, the Trial Chamber cites the 20 January alleged ultimatum,
24 and it draws the conclusion from these three events that the HVO
25 attacked the ABiH using the ABiH attack the day before in Kacuni as a
1 pretext. And the Trial Chamber concludes that there was only "some
2 defence," minimising the evidence and saying the Croats attacked first,
3 and the Muslims, there was just some defence. Well, let's look at the
5 As to Kordic's culpability, not the question of war crime now but
6 the question of Kordic's culpability, the Trial Chamber cites three main
7 pieces of evidence: first, a tape recording of a telephone conversation
8 between Colonel Blaskic and Mr. Kordic; secondly, miscellaneous
9 military documents mentioning Kordic, involving Kordic, from which
10 inferences are argued; thirdly, testimony that Kordic at times during
11 that fighting was where any sensible would have been, which is in a
12 basement in the headquarters of the units involved in the PTT building, in
13 the basement office.
14 The Trial Chamber also relies in a very unspecified way - again
15 imprecision in analysis - on Kordic's alleged control over roads, but
16 never says why that matters. And the Trial Chamber finds Kordic, as a
17 result, implicated in the attack; and I indicated already, one simply
18 can't know on what basis, whether as a committer, planner, instigator, or
19 order -- person ordering.
20 Well, let's take a look at the testimony of Witness AS. Witness
21 AS testified - this was a Prosecution witness, their star witness at the
22 end of their case - that Blaskic personally commanded the January military
23 operations. Witness AS listed military actions at several locations in
24 which he participated, but he gave no details as to those actions. He
25 testified that his police unit never attacked civilians deliberately, that
1 he never -- was never ordered to attack defenseless civilians, and that
2 his police unit was never ordered to attack or set fire to Muslim
3 villages. Witness AS never mentioned Kordic in connection with any of
4 these military operations.
5 Witness AS testified, in fact, that the person he interacted with
6 was Ljubicic, his commander, who got his orders from Colonel Blaskic by
7 telephone, for reasons I will indicate in a moment. In short, Blaskic was
8 the military leader, he said, and Kordic had political responsibility.
9 Let's turn now to the -- let's me go back a moment. I'm sorry.
10 Witness AS did mention the word "cleansing," and despite all of
11 this other testimony, that's what the Trial Chamber seized on, that word
12 "cleansing" in the English translation. That word, if you examine the
13 transcript carefully, was placed in the witness's mouth by a leading
14 question from the Prosecution. That's the derivation of that terminology.
15 And Your Honours had been through the question whether when one uses that
16 term and in the military context one is talking about mopping up or urban
17 fighting generally or whether one can really safely infer that this
18 witness, who was simply responding to the question from the Prosecution's
19 counsel, intended to say in complete contradiction to the rest of his
20 testimony that his unit and he had engaged in a war crime in ethnic
22 Now, let's turn to the UNPROFOR report. That report is -- there
23 is a contrary report, a contemporary -- that report, first of all, is from
24 the Kiseljak headquarters, a higher level, removed somewhat from the
25 action. And there is another ECMM report, Z454, that gives a more
1 accurate assessment of the fighting. It does not blame the Croats, the
2 way the UNPROFOR report does, and it does not cite the 15 January
3 "declaration" as a causative factor for the fighting in Busovaca in
5 Let's turn to that declaration. The text of that declaration says
6 -- first of all that, declaration is designed to be an implementation of
7 the Vance-Owen Plan. If you look at the text, you will see on its face
8 that there is no ultimatum. There is a proposal for on a reciprocal basis
9 for separating and mutually subordinating these two forces that were on
10 the same ground at the same time causing great difficulty which resulted
11 ultimately in their getting into a civil war later on in April.
12 The Croats, furthermore, agreed before the "deadline" ran to
13 renounce and withdraw this alleged ultimatum. Furthermore, the fighting
14 began at Gornji Vakuf on the 11th, and that's before the deadline ran. So
15 Z390.2, that UNPROFOR report at headquarters, they just got it wrong.
16 That January "declaration" did not result in the Gornji Vakuf fighting.
17 Now, let me be very brief about the nature of the military actions
18 here. The record is clear that there were extensive ABiH preparations
19 around Busovaca. Troops concentrated, the area was sealed off from
20 Kiseljak and stayed that way for the rest of the war. Most of the Muslim
21 population left Busovaca right before the fighting, secretly. And just
22 before the fighting, the ABiH captured 16 HVO soldiers up on the Busovaca
23 plateau. As I said, they sealed off Busovaca and Vitez from Kiseljak, and
24 they began the fighting on the 24th at Kacuni.
25 Let's look at the evidence from the BritBat observers. Lieutenant
1 Colonel Stewart and Major Jennings agreed that the Kacuni killings were
2 the principal catalyst for the Busovaca fighting but not that they were a
3 pretext as the Trial Chamber found. The fighting itself began early on
4 January 25th, as reflected by the evidence, with shooting and shelling
5 from all sides. The Croats then moved on the morning of the 25th of
6 January to disarm 50 to 100 TO members, Muslim combatants, who were in
7 fortified positions in and around Kalice Strane [phoen], which, if you
8 look at the map, you can see is a Muslim area on a hill immediately
9 overlooking the downtown area of Busovaca, threatening, almost by
10 pistolshot, the downtown area of Busovaca. The Muslims were warned but
11 they refused to surrender, and the fighting having commenced, the Croats
12 attacked that community to eliminate that threat to the heart of Busovaca.
13 And this is recorded in milinfosums and the testimony of Brigadier
14 Grubesic. The ABiH attacked the Croats in Milovace [phoen], and there was
15 fierce fighting on both sides, and I've provided citations. The 17th
16 Krajiska Brigade attacked Javor, and I've provided citations. The attacks
17 by the ABiH then continued for several days. Colonel Blaskic operated by
18 telephone from Kiseljak, where he was cut off.
19 On the question, then, whether there was a Croat attack and some
20 defence, look at Colonel Stewart's contemporaneous diary and consider
21 that, strategically, the Muslim objectives were to cut off communications
22 at Kaonik and Kacuni and to isolate -- to cut the pocket in half,
23 essentially, so that Kiseljak was isolated from Vitez and Busovaca. The
24 HVO then counter-attacked, and these are the counter-attacks that Witness
25 AS spoke about and participated in. Indeed, his unit did try to take
1 Merdani on the 27th but failed. During this entire set of attacks, the
2 HVO was greatly outnumbered in Busovaca. They were on the ropes.
3 Lieutenant Colonel Stewart blamed the Muslims in his book and in
4 his testimony. Major Jennings shared this view and said that the Muslims
5 refused to discuss Kacuni. They were very uncooperative. And most
6 importantly, Blaskic was caught out of position. Now, if this wasn't a
7 Croat deliberate, planned Croat attack against the Muslims as a part of a
8 campaign of persecution to be kicked off in January in Busovaca, why was
9 Blaskic in Kiseljak when the fighting began when his headquarters was in
10 Vitez? No responsible military commander plans an attack, a campaign of
11 persecution, and then gets caught out of his headquarters when his plan
12 goes into the operation. Yet this is not a fact that the Trial Chamber
13 discussed. They basically ignored this, but it's very, very telling.
14 Now, as to Kordic's role, the BritBat officers were told directly
15 by Kordic that he had no military authority in this same time period.
16 Blaskic himself said he was the commander on 1st of February and that
17 Kordic had no military authority, as reported in an UNPROFOR report.
18 There we go. And Kordic did take an active role in this fighting. No
19 question about it. This was in his backyard. His family lived in
20 Busovaca, and he was the senior political leader on the spot when Blaskic
21 was caught off base. He spoke daily to the press, spent time in his
22 office, spent time in this more secure headquarters, he was copied on some
23 of the military communications, he did use his influence to try to help
24 the HVO receive reinforcements. He had telephone conversations with
25 Blaskic, but listen and read very carefully the content of that telephone
1 conversation. It relates to an artillery attack, not a war crime. Kordic
2 has to ask Blaskic to consider various military steps, and the text of
3 that discussion makes it clear that the HVO officers would not obey
4 Kordic. "I told him but he won't do anything without it." And I will get
5 to that in a moment. There it is.
6 I must conclude quickly, but the short of it is that Kordic tried
7 on some occasions to meddle in artillery activities but that meddling was
8 generally rebuffed. That is what the text of the tape reflects. That is
9 what the documents reflect when you analyse them carefully, as we have
10 done in the brief.
11 I submit to you, therefore, that at Busovaca, there is no proof of
12 specific war crimes. The Trial Chamber is wrong on the facts that the
13 Croats attacked the Muslims is the beginning of a coordinated campaign of
14 persecution when Blaskic was out of position, and in any case, Kordic
15 participated as an active political leader would be expected to
16 participate; in public statements, present in headquarters occasionally,
17 trying to get logistical assistance, sometimes being copied on military
18 correspondence with Blaskic out of position. But Kordic was not the
19 military commander. He did not have responsibility for the fighting.
20 There was, in any case, no war crime proved. And when you look at the
21 facts after the event and you look at the Busovaca Joint Commission's
22 report, it was the Croats who were most severely damaged, both in terms of
23 personal injury and property damage during the Busovaca affair.
24 I will rest on brief, Your Honour, on the issues involving the
25 unlawful detention and the destruction of institutions dedicated to
1 religion or education and begin after the break on the question of
2 persecution and then mens rea.
3 JUDGE SCHOMBURG: Thank you very much. The Appeals Chamber stays
4 adjourned until half past three.
5 --- Recess taken at 3.00 p.m.
6 --- On resuming at 3.32 p.m.
7 JUDGE SCHOMBURG: Before I give you the floor again, Mr. Smith,
8 may I ask you the following, because it seems to be the correct order
9 before addressing mens rea issues. In your brief of 9 August 2001, in
10 footnote 211, you mention that the Trial Chamber's conviction as to
11 Merdani is an error for all reasons, and so on.
12 During the Status Conference held the 6th of May, we addressed
13 this question because, in fact, according to the judgement, your client
14 was found not guilty in relation to count 37. And the Prosecution
15 clarified that it's not disputed that Kordic has been acquitted for the
16 crime of destruction of property not justified by military necessity,
17 although paragraph 576 of the Trial Chamber concludes that the crime in
18 question was made out in Merdani.
19 What now? Your client is found not guilty. Apparently you appeal
20 the finding of not guilty. Can I take it that you are withdrawing this
22 MR. SMITH: Indeed, Your Honour.
23 JUDGE SCHOMBURG: Thank you. It's accepted by the Prosecution?
24 MR. FARRELL: Yes, of course, Your Honour. Thank you.
25 [Appeals Chamber confers]
1 JUDGE SCHOMBURG: The Trial Chamber accepts this as well. Thank
2 you. Please proceed.
3 MR. SMITH: Your Honour, I will speak until 4.00, but may I deal
4 with two housekeeping matters initially? First, we have given to the
5 Prosecution and other counsel these disks with the slides, and I would
6 tender them now officially to the Registry, if Your Honour chooses.
7 JUDGE SCHOMBURG: I think the best way would be to postpone it.
8 If not, the Prosecution is already ready to give submissions on this
10 MR. FARRELL: If I may, Your Honour. The Prosecution's position
11 is that they -- the characterisation with -- I mean, obviously as it
12 represents my learned colleague's position, the characterisation of the
13 elements or the characterisation of whether the Trial Chamber made certain
14 findings are not accepted by the Prosecution, as you can imagine. We
15 don't accept -- I'm sorry, Your Honour. We don't accept the conclusory
16 findings as to how they slot the evidence or the findings into the counts
17 or the elements. That's obviously the subject matter of the appeal. And
18 since it represents an opportunity by the appellants to put forward their
19 submission in that regard in writing, as we don't accept many of the
20 conclusions that we had the chance to look at at lunch, that if you do
21 accept it as a form of their written submission of how the trial judgement
22 should be read, then the Prosecution should be given the opportunity, if
23 we feel necessary, at some point in time, to respond. Thank you.
24 JUDGE SCHOMBURG: Let's postpone our decision until later. Please
25 understand that the Trial Chamber has to confer about this. And please
1 make one clear distinction: I think you want to tender first the CD-ROM
2 with the flip charts highlighted this morning. Are there any problems
3 with this for the Prosecution? The entire CD-ROM, as related to
4 Mr. Sayers' contribution.
5 MR. SMITH: And mine, Your Honour.
6 [Appeals Chamber confers]
7 JUDGE SCHOMBURG: This is the first part. Then you intended to
8 provide us with both charts, and then, in addition, those slides we have
9 seen during your submissions the last hour. And as for the slides, are
10 there any problems? I think we should be very precise on this.
11 MR. FARRELL: Regarding the slides, which constitute to a certain
12 extent their submissions, I can't see -- you've seen them. They are their
13 submissions. I don't see any problem with those.
14 JUDGE SCHOMBURG: Then this is accepted. May I ask the usher,
15 please, to distribute one copy to the Prosecution and to the Bench.
16 MR. SMITH: And copies here. I believe the Prosecution has a
17 copy. And we will hold these until the morning, Your Honour, as I
18 understand. Or do you want those distributed now?
19 JUDGE SCHOMBURG: Let's decide later on the charts, because they
20 have not yet been part of your submissions, your oral submissions. And
21 let's wait and see until the end.
22 MR. FARRELL: If I may just ask one point of clarification. Does
23 the CD contain -- and it's not to Your Honour, obviously. Does the CD
24 contain, in the slide part of Mr. Sayers' presentation, more than was
25 presented today? Just so I can check. I'm going on what was presented
1 this morning, but I don't know what's on the CD. I'm sorry.
2 MR. SMITH: I think it does include slides on his sentencing
3 argument this afternoon. It does not, I believe, include slides on the
4 response to your appeal that we will argue on Wednesday. Is that
5 accurate, Mr. Sayers?
6 MR. SAYERS: Actually, it contains everything. All of the slides
7 on all of the arguments that we intend to be making to the Appeals
9 [Appeals Chamber confers]
10 JUDGE SCHOMBURG: Taking into account that it will cover also the
11 response to the appeal by the Prosecution, I think it's only fair to wait
12 until the end, and then finally decide upon the admissibility. Thank you.
13 So let us wait.
14 MR. SMITH: Your Honours, much of what I have already said relates
15 directly to numerous material, Trial Chamber errors, as to both the
16 crucial persecution and the mens rea issues. I now turn to deal with each
18 I'm starting with persecution, and I am starting with the question
19 of the adequacy of the indictment insofar as it relates specifically to
20 persecution and specifically to joint criminal enterprise. And these are
21 quotations similar to those that Mr. Sayers used this morning from the
22 Vasiljevic trial judgement and the Kupreskic Appeals Chamber.
23 The point is that the amended indictment is defective, in our
24 submission, because it charges, number one, a broad, non-specific campaign
25 of persecution; number two, as charged, extending to areas for which no
1 specific evidence was offered, where Kordic had no political influence,
2 and as to which Kordic was found not guilty.
3 The Appeals Chamber has held that, as to -- now switching to joint
4 criminal enterprise, that using the concept of joint criminal enterprise
5 to define individual responsibility requires a strict definition of common
6 purpose and that the persons within the group have got to be identified as
7 precisely as possible. In short, the Krnojelac appeals judgement has
8 established four requirements for the Prosecutor in pleading joint
9 criminal enterprise.
10 First, that he must plead the common purpose or design
11 specifically. That was not done in this case. The language in the
12 indictment, and I've cited the paragraphs, says only that Kordic, together
13 with certain persons, did X, Y, or Z. There's no mention of common
14 purpose or design there.
15 Second, the Prosecution must specify carefully the purposes of the
16 common purpose, and here the allegation is very broad and generic of a
17 campaign of persecution. Must also identify as precisely as possible the
18 principal perpetrators. But when you look at the amended indictment, you
19 find that it charges, in a formulaic way, over and over, Kordic together
20 with various members of the HDZ, BiH, the HZ HB, HR HB and their leaders,
21 armed forces, and agents. Simply vague and non-specific.
22 And fourth, the Prosecution must charge the specific category of
23 joint criminal enterprise, or common plan, as it was then called, that
24 they are alleging. Not done in the indictment or even in the pre-trial
25 brief. Paragraph 26 of the amended indictment mentions foreseeability but
1 not specifically in the context of the common plan for joint criminal
2 enterprise, and foreseeability is relevant for many reasons as to various
4 Even if the amended indictment were read to have pled a category 3
5 joint criminal enterprise, that is not what Kordic was convicted on. Then
6 there is a mismatch between the pleading and the conviction, because he
7 was convicted of a category 1 joint criminal enterprise.
8 Now, in dealing with persecution, what is alleged is a political
9 military campaign of persecution, in itself a very vague concept. I've
10 dealt with the military side at some length, and I will again briefly. I
11 turn now to the political side.
12 The Trial Chamber's judgement found Kordic criminally responsible
13 for participation in this campaign of persecution for essentially two
14 reasons: Due to his status and due to his role. Insofar as his status is
15 concerned, they found that he was the political leader of the Bosnian
16 Croats in Central Bosnia, but, of course, as Mr. Sayers has indicated,
17 only a local leader, not engaged at the highest levels. And, of course,
18 he was, as you would expect of any political leader during a time of
19 military operations, associated with military leadership. That's not
20 surprising and not per se criminal.
21 As for his role, Kordic was said to have, as a political leader,
22 participated in certain political events; the HVO takeover of the
23 municipalities and certain military events, the attacks that I've already
25 The accused, in terms of evidence relied on as to role. The
1 accused's positions, relied upon by the Trial Chamber, are his positions
2 in a political party. Not in the government, not in the military.
3 Mr. Sayers has made these points. The evidence in the case, however,
4 demonstrates, by the testimony of Mr. Vucina, who was an outstanding and
5 credible witness, a representative in the House of Representatives of the
6 Federation of Bosnia-Herzegovina and well placed to know the truth of what
7 he testified to on the point I'm coming to, because he was the president
8 of the Executive Committee of the HDZ BiH during the war.
9 What he said was that during the war, during the period that this
10 indictment deals with, the political party was dormant and inactive and
11 that events were directed by and actions taken by the government and the
12 military during that wartime period.
13 Now I am going to turn to dealing with the political aspects of
14 the charge of persecution, and I am going to begin by reflecting upon a
15 statement by the Presiding Judge in this case. He said: "I hope this
16 isn't going to end up as being a trial about politics." But it did end up
17 being a trial about politics, and it did because that is the way the
18 Prosecution pled the case and that is the way the Prosecution tried the
20 Turning to the political events. There were two main sets of
21 political events that the Trial Chamber focused on and that were discussed
22 and dealt with in the evidence. One is the establishment of the HZ HB and
23 especially its purpose. And this was at the national level, and that's
24 what I will deal with first. Secondly, then there were - and I'll come to
25 this - HVO attacks -- sorry, HVO take-overs of municipalities alleged, and
1 I will deal with that as well. In fact, I will deal with each in turn.
2 First, the purpose of the HZ HB. This is the national-level
3 issues. Kordic, of course, found not to be involved in the national
4 leadership. But nonetheless, the Trial Chamber concludes that the Bosnian
5 Croat institutions intended to secede from the RBiH and associate with
6 Croatia, and that is what we must examine. The conclusions of the Trial
7 Chamber on this matter deal mainly with events during the earliest period
8 covered by the amended indictment in the fall of 1991, and in fact some of
9 them before the period of the amended indictment, although the Trial
10 Chamber does mention a few events in early 1992.
11 The Trial Chamber's analysis of these essentially historical and
12 political matters, which we examined at great detail in our trial brief in
13 an annex and in the brief itself but had no room to do in our Appeal
14 Brief, has some critical and material errors. The Trial Chamber, for
15 example, concluded that Mate Boban became president of the HZ HB the
16 following month after Mr. Kljuic resigned. That is simply not the case.
17 It concluded that the Croats took advantage of the Muslims in the gaining
18 of weapons in the period when the JNA was leaving the facilities at the
19 Slimena barracks. That, for the reasons that I've set out, is in error.
20 The credibility of the Trial Chamber's grasp of the national
21 political situation was fatally undermined by its gross error in
22 concluding that Mr. Kordic was exercising power politically and became
23 vice-president of the HR HB, the political successor to the HZ HB. Simply
24 not the case.
25 The Trial Chamber, as to this whole issue at the national level,
1 failed to cite, failed to credit, in most case, the official documents
2 that Kordic has cited, and the credible witnesses Kordic put on, stating
3 and establishing, for example, that the Bosnian Croats advanced a
4 legitimate political objective, that their institutions were only
5 temporary, that they were independent of the -- they were not independent
6 of the RBiH, never asked to be independent, never urged annexation to
7 Croatia by force. They were not and never purported to be a sovereign
8 government under international law, and there was a great deal of
9 confusion about the use of the term "sovereignty," meaning sovereignty of
10 a constituent people within a political community in the Balkans versus
11 sovereignty in the international law sense, which they did not claim. The
12 evidence establishes that there was no de jure discrimination, and it
13 established no de facto discrimination.
14 There was evidence that I want to pause on, however, and that is
15 the Tudjman transcripts. Evidence put in by the Prosecution of the
16 meeting in Tudjman's office on December 27th, 1991, which is said by the
17 Trial Chamber to be incriminating.
18 Nonetheless, it does not establish that even if secession was
19 dreamed of at the early stages of the breakup, in the fall and winter of
20 1991, that it was intended to go forward then or to be done by force. It
21 was to be considered only as a last resort. Tudjman told the Bosnian
22 Croat leaders to negotiate with the Muslims in December of 1991. He never
23 instructed that BiH was to be partitioned, never instructed that the
24 Croats there were to secede at that time, never instructed or demonstrated
25 any desire that the Bosnian Croats should proceed by force or threat of
2 Notwithstanding all of this evidence, the Trial Chamber has found,
3 with no explanation, that there was an intent to secede. But even if
4 there were, that finding accords only legitimate political objectives. It
5 is clear on its face that this finding can support no conclusion of either
6 discrimination or persecution. It contains no finding of intent to use
7 force, and even if it had, use of force to achieve legitimate political
8 end is not a war crime before this Tribunal.
9 Switching to the alleged HVO takeovers. This Tribunal, in
10 language in several opinions, Judges have concluded that the forcible
11 takeover of a city or town does not constitute a war crime or a separate
12 claim under Article 5. And there is a great deal of evidence that I do
13 not have time to go over dealing with the take-over in Busovaca,
14 establishing point by point in our briefs that the allegations as to
15 discrimination after the takeover cannot, in fact, be maintained on the
16 facts, and we have argued that the take-over itself was a reasonable
17 political response by the group that controlled the government at that
18 time to the situation created by the Muslims in their attempt to take the
19 weapons at the military barracks at Kaonik.
20 And I'm now going to turn to mens rea.
21 JUDGE SCHOMBURG: Would it be appropriate? Judge Weinberg de Roca
22 has a question. Please.
23 MR. SMITH: Yes, Your Honour, of course.
24 JUDGE WEINBERG DE ROCA: You have repeated that Mr. Kordic has
25 been found responsible for areas where he had no political influence, and
1 I would be grateful if at this stage you could specify in which areas you
2 submit he had political influence and which are the areas which you submit
3 should be excluded. Thanks.
4 MR. SMITH: He had political influence in Busovaca. Later, during
5 the war, he had political influence in that region, that pocket,
6 Vitez-Busovaca area. But in terms of political influence in Vitez, for
7 example, in the spring of 1992, when there was a take-over, that was not
8 his bailiwick, and it would take me a moment to find it and I may give it
9 to you after I've sat down at some point, but there is Prosecution witness
10 evidence to that effect. But he was completely cut off from Kiseljak.
11 That was Ivica Rajic territory, and the evidence is clear on that matter.
12 May I then proceed with mens rea, Your Honour?
13 JUDGE SCHOMBURG: Please do so. Thank you.
14 MR. SMITH: Special care has to be taken with findings of criminal
15 intent. The Appeals Chamber has taken the view that an inference of
16 intent, when intent is inferred, it must be the only reasonable inference.
17 The Krstic facts, dealt with by Mr. Sayers this morning, demonstrate that
18 inferences from mere presence, inferences of shared intent from mere
19 presence, even where the person was present at a meeting and therefore had
20 knowledge of what was going on, are insufficient; there's got to be
21 evidence of mens rea.
22 I want to discuss briefly what the record shows about mens rea.
23 From a brief examination of the facts, it is clear that there is no
24 evidence that Mr. Kordic intended to cause Muslims harm, much less to
25 cause their removal, because they were Muslims rather than persons in
1 political or military opposition to him and his community in the
2 conditions they both faced, not created by either community in Bosnia at
3 that time. This is seen in his character, his words and writings, his
4 actions toward Muslims, and his actions in support of peace. And we have
5 outlined these in our briefs at some length.
6 I will simply say that - and I want to underline - when all was
7 said and done, at the end of the conflict, Mr. Kordic exercised leadership
8 in having the political solutions adopted by the Croat community in
9 Central Bosnia, who were not happy with what the deal that was being
10 served up for them by the -- because the Croat community was dominated
11 politically by people in Herzegovina. But Mr. Kordic took a lead, even at
12 risk of his life, and in an official position aided in the implementation
13 of the peace after it was achieved, and that is an extremely significant
14 and telling point.
15 I will conclude, Your Honour, by saying that the Trial Chamber
16 applied 20/20 hindsight, circumstantial hindsight, on events, political
17 and military, to conclude, to conjure up, indeed, a joint criminal
18 enterprise and a campaign of persecution against Croats in Central Bosnia
19 where there simply was none, and therefore, and that's why there's simply
20 no evidence of it. This is an inferential case from political events that
21 have other reasonable explanations, as we have briefed, and military
22 events that have other reasonable explanations.
23 In a context in which both communities were struggling with a
24 situation, refugee flows, lawlessness, matters not created by them but
25 which Mr. Kordic and other leaders in both communities had to deal with as
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 best they could, and with the Serbs aiding, the two communities fell to
2 fighting, and there were political and military events which we have
3 explained. The reasonable inferences were ignored by the Trial Chamber
4 that are favourable to the accused, and that's critical.
5 The Appeals Chamber must rescue the credibility of this Tribunal
6 and of the development and application of new and evolving use of
7 international criminal law, in the eyes of history and in the eyes of the
8 world, by being extremely careful with the application of the concept of
9 persecution, to political and military events which have reasonable
10 explanations and where there are reasonable inferences about the way
11 persons behaved. And I am focusing on Central Bosnia.
12 There was no joint criminal enterprise. There was no campaign of
13 persecution in Central Bosnia. There was fighting. There were lots of
14 bad things that happened. A plan of persecution by this minority
15 community outnumbered, surrounded, simply doesn't add up. Dario Kordic
16 was a responsible political leader in a very difficult time. He did the
17 best he could. He did not have the requisite discriminatory mens rea that
18 the Trial Chamber could only infer from political events and military
19 events which he necessarily participated in in his role as a political
20 leader. And he was not responsible for the crimes at Ahmici.
21 And Mr. Naumovski will now deal with the three villages -- sets of
22 villages that I omitted in my discussion, Your Honour.
23 JUDGE SCHOMBURG: Thank you, Mr. Smith. Any questions? Not the
25 Then Mr. Naumovski, please.
1 MR. NAUMOVSKI: [Interpretation] I do apologise, Your Honour. Can
2 you just give me a moment to prepare. I am ready now, Your Honours. I do
4 Your Honours, I will continue on, but I will discuss primarily the
5 Kiseljak area and the events that took place there. It is the contention
6 of the Defence, and you will see from the arguments that follow, that the
7 conclusions of the Trial Chamber on the criminal responsibility of
8 Mr. Kordic for the events in Kiseljak - and when I say "Kiseljak," I am
9 referring to the entire municipality, as well as the town; that is, over
10 ten villages and the town of Kiseljak - that the evidence is very tenuous,
11 and, in our view, unfounded. Almost all the conclusions about the events
12 in Kiseljak are summed up in paragraph 668 and 669, and paragraph 724 and
13 725 of the judgement.
14 I have also prepared certain slides, and I hope that this will
15 make it easier to follow my argument.
16 All the evidence analysed by the Chamber boiled down to a single
17 piece of evidence for each event, and I will tell you what events these
18 are. There is no linkage with Mr. Kordic as far as the events in Kiseljak
19 are concerned, let alone any visible elements of Kordic's mens rea.
20 Mr. Kordic has been found guilty on counts 3 and 4, for the village of
21 Rotilj, unlawful attacks on civilians, for April 1993; and for Rotilj,
22 Tulica, Han Ploca, and Grahovci, counts 7, 8, 10, and 12. I will not read
23 each count.
24 Also, in relation to the town of Kiseljak and the villages of
25 Svinjarevo, Gomionica, Polje Visnjica, Rotilj, Tulica, and Han Ploca,
1 Articles -- counts 38 and 39. There are also the villages of Visnjica,
2 Behrici, and Gromiljak, count 38; and count 43, which refers to the
3 village of Han Ploca in June 1993.
4 What does the judgement say about the events in April, April 1993?
5 The Trial Chamber established, in paragraph 753, that the evidence does
6 not show that Mr. Kordic had control over Kiseljak, because his influence
7 and authority were concentrated in the Lasva Valley. In the same
8 paragraph, the fact that Kordic was the leading political figure in
9 Central Bosnia does not of itself establish that Kordic was involved in
10 this offence outside his sphere of authority, and the attack was not part
11 of any common plan or design to which he was party.
12 The attacks in the Lepenica Valley, which starts about 25
13 kilometres away from the Lasva Valley -- and these valleys, as the Chamber
14 knows, were completely cut off as of the 24th of January, 1993 -- these
15 attacks, according to the judgement, as stated in paragraph 669, occurred
16 two days after the attacks in the Lasva Valley. According to the
17 conclusion of the Trial Chamber in paragraph 753, these attacks were part
18 of a pattern of attacks on Muslims in Central Bosnia.
19 I have to say, however, that the Trial Chamber concludes, in
20 paragraph 753, that with regard to Stupni Do, the attack by forces which
21 had come from Kiseljak were not part of an overall plan of which -- in
22 which Mr. Kordic would be a participant, and Mr. Kordic was acquitted of
24 As for the events in April, the judgement states that Blaskic's
25 order of the 24th of September, that is, Prosecution Exhibit Z733 -- I do
1 not wish to enter into problems of identification because this may or may
2 not be Blaskic's order, because he did not sign it himself, but everybody
3 refers to it as such, and so I will too. And in paragraph 668, it states
4 that Blaskic informed the leadership of the HZ HB of everything. I have
5 to say that the original document in Croatian is different because the
6 original states: We informed the very top leadership of the HZ HB of all
8 We can have this document placed on the ELMO if Your Honours so
9 wish. I have already distributed copies to the interpreters. However,
10 based on this document, only on document Z733, the Trial Chamber concludes
11 in paragraph 669 that Blaskic would not have undertaken these attacks
12 without political approval, and the further conclusion is drawn that the
13 top leadership was in fact the local leadership embodied in the person of
14 Dario Kordic. They say that Blaskic could not easily have communicated
15 with someone like Mate Boban in Mostar. This is the case that the Trial
16 Chamber accepted.
17 Based on this, the Chamber concluded that Kordic was linked with
18 the issuing of orders to attack villages, including Rotilj. That's
19 paragraph 669. I will repeat what my colleague Mr. Smith said. This
20 refers -- this document refers only to the village of Gomionica, which is
21 only one of ten villages in the Busovaca municipality. So I have to say I
22 fail to see the link between this document and other villages, including
23 Rotilj. The Chamber has reached similar conclusions with respect to
24 events in 1993.
25 Let me just remind you that the entire indictment and judgement
1 was based on two events, or rather, two time periods, one in April and the
2 other one in June. It was found that the villages of Tulica, Han Ploca
3 and Grahovci, to the south of Kiseljak along the road to Sarajevo, were
4 attacked on the 13th of June. The Trial Chamber considered, in accordance
5 with what was said about the events in April, that these -- all these
6 attacks were part of an unceasing attack by the HVO.
7 The Trial Chamber accepted the statement of a witness about
8 Kordic's presence in Kiseljak on the 14th of June, based on what the
9 witness said that he had seen in passing in a five-second time period. I
10 have to say that ever since we began working on this case long ago, in
11 1997, up to today, there has been a considerable development of the
12 jurisprudence of this Tribunal, and this is something that we are very
13 pleased about, and it seems to us that this Tribunal's credibility is
14 growing due to this. And this is also what my colleague Mr. Sayers
15 mentioned about witness statements that have not been corroborated in any
17 So both with respect to the attacks in June, based on this witness
18 statement, the witness said that he had seen Mr. Kordic for five seconds,
19 the attacks, according to the Trial Chamber, could not have been launched
20 without the approval of the local political leadership in the person of
21 Dario Kordic. Paragraph 726. And that is why Mr. Kordic was linked to
22 the order that these attacks be launched.
23 This, however, is what the evidence states. Kiseljak was a
24 territory under the command of Ivica Rajic. Major Baggesen testified to
25 this, transcript 7759.
1 Brigadier Wingfield-Hayes, who testified two days before the close
2 of the Prosecution case and who was the third in command in the UNPROFOR
3 headquarters in Kiseljak, said that he had never seen Mr. Kordic in
4 Kiseljak. Transcript 16168. And he also said that Mr. Kordic was not a
5 person who should be consulted if there were any problems in Kiseljak,
6 because Mr. Rajic was the local commander.
7 I will not go into this any further. I will simply refer to the
8 testimony of the Prosecution witness, Brigadier Winfield-Hayes.
9 Let me say a few words about the location of these villages.
10 Rotilj, as can be seen from the map adduced to the judgement, was located
11 just to the rear, west of Kiseljak, in a valley above the town. Tulica,
12 again, was militarily important because it was between the HVO and ABiH
13 lines. Han Ploca/Grahovci, which are interconnected along the road, were
14 militarily important because they were outside a main road junction, with
15 key roads running to Sarajevo and Mostar. I am mentioning all this
16 because I wish to say that the Trial Chamber failed to pay attention to
17 this military aspect. All the villages I have mentioned, and some others
18 as well, were in the area of war operations. Sometimes there were -- some
19 of them were at the front line, others were being defended. For example,
20 Witness AL, Prosecution witness, transcript 15554, said that the civilian
21 population left Behrici, but 50 or 60 Muslim men stayed to fight and
22 controlled the village for over two months. Behrici was part of the ABiH
23 and the HVO front line.
24 Prosecution Witness D says Gomionica was held by ABiH troops. Also
25 Prosecution Witness AM, Major Baggesen, and others, made similar
2 The Trial Chamber, based on these two pieces of evidence, Z733 and
3 Witness Y, considered that Mr. Kordic was linked to the events -- the
4 attacks that took place in the Kiseljak municipality and that he was
5 responsible, without mentioning any facts that would prove that Mr. Kordic
6 participated in or planned any of these attacks, let alone proving
7 elements of his mens rea.
8 I do not want to waste time, so I think it is time to move on to
9 slide 21, and this is what I wanted to point out.
10 Z733, the Prosecution exhibit, deals only with the village of
11 Gomionica, as explicitly stated in paragraph 1 of this document. In this
12 order, Blaskic --
13 [Appeals Chamber confers with legal officer]
14 JUDGE SCHOMBURG: Please continue.
15 MR. NAUMOVSKI: [Interpretation] Thank you. In this order,
16 Blaskic, among other things, in paragraph 4, on which the conclusion of
17 the Trial Chamber is based, says: We have informed the very top of the HZ
18 HB, with whom we are in constant communication, of all of this."
19 The judgement says that the local politician, Mr. Kordic, embodies
20 that top, but in the entire file, there is no document where Blaskic would
21 use this expression "the very top." The very top, in this particular
22 case, cannot refer to Mr. Kordic, because Mr. Kordic was not the very top
23 of the Croatian Community of Herceg-Bosna.
24 According to the way Colonel Blaskic addressed Mr. Kordic, this
25 can mean only one thing. It can mean only the president of the community
1 of Herceg-Bosna and his associates in Mostar, because, referring to
2 Mr. Kordic, he always called him either "Mr. Kordic" or by his title, but
3 never said about him that he was the very top. Mr. Kordic was not the
4 very top, as the Trial Chamber itself concluded, saying that he was not in
5 the highest echelons of power among the Bosnian Croats. Therefore, we
6 contend that this is very stretched, this conclusion that Blaskic was
7 referring to Kordic.
8 What does this document show? It shows that Blaskic informed the
9 very top of the Croatian Community of Herceg-Bosna, but it doesn't mean
10 that he asked for approval from the very top of the Croatian Community of
11 Herceg-Bosna to launch military action in the village of Gomionica only.
12 We in the Defence fail to understand paragraph 769, that Blaskic would not
13 have launched a military operation without the approval of Mr. Kordic.
14 This is not a request for approval for an attack; it's only information as
15 to what is happening in the village of Gomionica.
16 In paragraph 839, we see what I said a moment ago, that the
17 judgement itself considers that the evidence does not confirm that Kordic
18 was -- that Kordic was at the top echelons of power in HB because of that.
19 JUDGE SCHOMBURG: Mr. Naumovski, we want to be very clear about
20 the content of document 733. You were kind enough to give us a copy, and
21 I don't know how best to do it. Unfortunately, it seems to be that the
22 English translation does not correspond with the French translation.
23 Therefore, if you could be so kind and read out the paragraphs you are
24 referring to from this document and then it may help us.
25 And I apologise to the interpreters to task you with translating
1 something which is normally not your job.
2 MR. NAUMOVSKI: [Interpretation] Mr. President, I have facilitated
3 the work of the interpreters because I have prepared a copy for them. So
4 they have the text in the three languages. I apologise that during the
5 deliberations we didn't notice the errors in the translation, but the
6 original, of course, is in Croatian, so I will read out point 1: "This
7 evening you must take Gomionica or early in the morning." I think that is
8 enough from that point 1, because no other place is mentioned and the
9 operation is mentioned after that.
10 And then we come to point 4 of this order, which
11 says: "Generally, at all positions, the situation is under control. And
12 we have informed the very top of the HZ HB of everything, with whom we are
13 in constant contact."
14 This point 4 is the reason for which Mr. Kordic, in my conviction,
15 was convicted of everything and found guilty of everything done in
16 Kiseljak in April 1993, because there was absolutely no other evidence of
18 JUDGE SCHOMBURG: I thank you, and the interpreters.
19 MR. NAUMOVSKI: [Interpretation] Therefore, what my colleague said
20 earlier on is this: It is one thing to establish a piece of evidence and
21 then to see what the accused has done, which is simple, and then to
22 ascertain the elements of his consciousness, the mens rea, and so on and
23 so forth. Here, the Court, from a very pure and clear-cut document and
24 clear-cut information about the events, comes to the conclusion in
25 paragraph 669 that Blaskic would not have launched the attacks without
1 political approval precisely of Mr. Kordic. Now, that is completely
2 unacceptable to us and is a very weak argument, because it is not
3 substantiated by proof and evidence. If we look at this document relating
4 to Gomionica, which is a piece of information, and it draws conclusions
5 for villages in the whole region, and then this information means
6 political approval.
7 I don't want to tire you with this point too much. I should like
8 to go on to the next document, which is a very vital one as well.
9 Everything that happened in June 1993 is based on the testimony of
10 Witness Y, who testified on the 3rd and 4th of December, 1999. And the
11 transcript is 11000 or thereabouts, some page or line thereabouts.
12 Now, what did Witness Y actually say? Witness Y said that he saw
13 Mr. Kordic at the barracks in Kiseljak and that at that point in time,
14 Mr. Kordic was surrounded by some unknown individuals. He went on to say
15 that he saw Mr. Kordic, as he was walking, while he was going to wash, and
16 that he was 8 to 14 metres away from Mr. Kordic at that point in time, and
17 both of them, as we have established, were moving, on the move, walking to
18 and fro, and that all this lasted for a flat five seconds. So that is
19 what the witness said.
20 I do not wish to tire Your Honours or to repeat what my colleague
21 Mr. Sayers has already said, but as I said a moment ago, with the
22 development of jurisprudence in the Tribunal, which is progressing in the
23 right direction, I would nonetheless like to say that this is something
24 that has not been substantiated by any evidence and has not been
25 substantiated by any witness testimony that Mr. Kordic was actually in
1 Kiseljak. Mr. Kordic was a well-known personage. You would see him on
2 television. Everybody knew what he looked like. And quite simply, in the
3 judgement, mention is made of the fact that the Defence did not prove that
4 Mr. Kordic was not in Kiseljak at the material time, that is to say, in
5 June 1993.
6 I fully accept the allegations made by Her Honour Judge Mumba that
7 it is up to the Defence to prepare itself, to prepare the defence case,
8 and to be trial-ready. However, I would like to say that it is almost
9 impossible, or rather, absolutely impossible, to defend oneself from
10 negative circumstances or to prove a negative circumstance at all. So
11 therefore, it was impossible to prove that Mr. Kordic was not in Kiseljak
12 from the 4th to the 8th or whatever the date was, as it says, in Kiseljak,
13 because he was not able to be in Kiseljak in the first place. And even if
14 he was in the barracks, this should have been -- rang the alarm bell for
15 the Trial Chamber to focus on what the witness actually said, because in
16 Kiseljak we had the centre of the UNPROFOR headquarters, Kiseljak was
17 militarily interesting intelligence-wise. So they all oversaw the
18 barracks. That is absolutely true, and nobody ever saw Mr. Kordic. And
19 not a single document, all the milinfosums, not a single one of them, not
20 a single intelligence report ever said that Mr. Kordic was ever seen in
21 Kiseljak in the summer of 1993.
22 And ultimately, Mr. Wingfield-Hayes didn't see him either, the
23 number-three man in UNPROFOR. And I'm sure he would have heard -- had
24 Mr. Kordic been there, and he was actually asked that in the courtroom.
25 In a completely inexplicable way, the Trial Chamber accepted this
1 gentleman's testimony that he had been -- that he had seen Mr. Kordic in
2 some dramatic circumstances, according to him, and the Trial Chamber did
3 not accept at least six or seven witness testimonies that Mr. Kordic was
4 accused of. However -- and this was never corroborated.
5 But let's move on. Let it be true that Witness Y did see
6 Mr. Kordic, although we consider that that is impossible and that he must
7 have made a mistake. Witness Y said nothing about what Mr. Kordic was
8 doing; whether he was issuing any orders, whether he was committing any
9 crimes, whether he was planning any crimes, ordering, planning any acts.
10 All he did say was that he saw him passing by, passing by the corridor.
11 I consider, and that is the position of my Defence, that -- and
12 our Defence, that the Trial Chamber should have paid due attention to the
13 testimony by Witness Y, especially as it based their stand on Mr. Kordic's
14 participation in the crimes on that testimony and all the mens rea on the
15 part of Kordic for those crimes. And the Trial Chamber failed to look
16 into how Mr. Kordic could have been there in the first place. I think
17 Witness O said something to that effect in the cross-examination during
18 the trial, that Kiseljak was -- or rather, Busovaca was cut off from
19 Kiseljak from the 24th of January, 1993, right up until the Washington
20 Accords in the spring of 1994. So that is a fact.
21 I do not wish to tire Your Honours now with some of the facts, for
22 instance, the problem of identifying the individual. Mr. Sayers spoke
23 about that at length. I would just like to indicate the Appeals Chamber
24 judgement in the Vasiljevic trial judgement of the Trial Chamber, et
25 cetera, and the Kupreskic judgement as well. Let me conclude. This
1 document, Z733, in itself or with respect to any other evidence, does not
2 show that Mr. Kordic should have given any political approval, neither did
3 he have any part in the events that took place in the villages mentioned
4 in April 1993. Also, on the basis of witness testimony, including the
5 testimony of Witness Y, even if we do accept the conclusion made by the
6 Trial Chamber that he did indeed see Mr. Kordic, all we can conclude from
7 that is that Mr. Kordic was seen there, and nothing other than that,
8 absolutely nothing. Let me remind you once again of the Krstic judgement
9 with respect to the events in Potocari, because I think that that is the
10 only reasonable solution in cases where there is not a shred of evidence
11 to prove anything else other than that person was in one place at one
12 time. Otherwise, if any of us happens to be just by chance -- and I
13 apologise for this comparison, but if it so happens that we happened to be
14 somewhere where somebody was killed, we would all be murderers or be
16 So looking -- and this is quite unacceptable from the legal aspect
17 and from the aspects of life in general. So this is not sufficient to
18 prove guilt. And I put it to you that there is no proof and evidence that
19 Mr. Kordic had any power or influence to wield influence of the events in
20 Kiseljak. The attacks there, as I have said, in view of military targets,
21 were justified, and it has not been proved beyond reasonable doubt that
22 the operations were illegal and unlawful, that they were attacks against
23 civilians, or rather, civilian facilities, and there is no proof of this,
24 that it was military necessity either. And it is for all these reasons,
25 as far as this part of my presentation is concerned, that the only
1 reasonable conclusion is that Mr. Kordic -- that nothing was proved that
2 Mr. Kordic had any connection at all with these events, least of all that
3 these two pieces of evidence, document 733 and Witness Y testimony, would
4 be sufficient to establish his guilt.
5 I have overstepped my time somewhat. I did want to make certain
6 other points about the events in the village of Loncari and Donja
7 Veceriska and Gacice, however, I will now cede the floor to Mr. Sayers and
8 we'll see whether we'll go into those points later on if there's time.
9 Thank you.
10 I apologise. Of course, if there are any questions from Your
11 Honours, I should be happy to answer them.
12 JUDGE SCHOMBURG: Judge Guney, please.
13 JUDGE GUNEY: [Interpretation] Mr. Naumovski, I must say that I'm
14 a little perplexed, faced with the terms that were used by you and by your
15 colleagues during your submissions, with respect to the prerogatives and
16 power and authority of Mr. Kordic. Now, would you try and assist us,
17 please, and help us clarify certain points. Because on the one hand, he
18 was a man of politics, he was a civilian exerting considerable influence
19 and power in Central Bosnia, on the one hand, according to paragraphs 836
20 of the judgement, for example, and 839, although he played an important
21 role in military affairs and sometimes even going towards giving orders
22 and controlling HVO forces. "While he played an important role in
23 military matters," et cetera, et cetera, paragraph 839.
24 Finally, we come to document Z733 and the fourth paragraph, in
25 which it says that the situation is under control at all the positions and
1 we have informed the top leadership of everything and we are in constant
2 contact with the leadership. I think that you said that they exerted
3 influence. Sometimes you used the word "authority," exerted authority.
4 Your colleague used similar terms. So I think we should spend some time
5 to actually delve into what we mean by this authority. What was the
6 authority, influence, and prerogatives of Mr. Kordic, in actual fact, in
7 light of the elements that I have just quoted? So would you be so kind as
8 to help us out on this point, please, and develop arguments to help us
9 clarify. Thank you.
10 MR. NAUMOVSKI: [Interpretation] Yes, Your Honour. I shall be
11 happy to do so, Judge Guney. May I just make a few statements before
12 that? The Croatian Community of Herceg-Bosna, as my colleague said before
13 me, had its civilian structures of authority and the military chain of
14 command. Mr. Kordic was a politician who did not have any administrative
15 authority in Central Bosnia, because the Prime Minister of the civilian
16 government of the HVO, Mr. Brnik, had his deputy. He was Ante Valenta,
17 and he had his headquarters in that same Lasva River Valley. Therefore,
18 all these civilian organs of power and authority in the municipalities of
19 Busovaca, Vitez, and Novi Travnik were, in actual fact, subordinated - I'm
20 talking about civilian authorities - to Mr. Valenta, as the "deputy of the
21 Prime Minister" of the Croatian Community of Herceg-Bosna. And from this,
22 we come to what I want to tell you: Mr. Kordic was a politician. He did
23 not have any administrative authorisations and competences or military
24 ones either. He started his political career, if I can put it that way,
25 within the party to which he belonged, and he belonged to the party since
1 the beginning of 1990 or 1991. Later on, he grew to become, and of course
2 circumstances pushed him in that direction, he became a sort of popular
3 tribune in the Lasva River valley, and that in fact is reflected in the
4 judgement in paragraph 839, that he remained a civilian. So he remained a
5 civilian with no administrative powers. He couldn't, for instance,
6 replace the president of the civilian HVO in the Busovaca municipality,
7 Mr. Maric. He didn't have the authority to do that, for example.
8 Therefore, he was a politician who emanated from the party and became a
9 popular Tribune with great authority among the people. People came to him
10 for assistance, asked for his help, and that is how Mr. Kordic came to be
11 involved in some circumstances and events. The Convoy of Joy, for
12 example, in the summer of June 1993, not far from Vitez, where Mr. Kordic,
13 by wielding his authority, endeavoured to have certain problems resolved.
14 So people came to him for help. He was an individual without any
15 administrative authority or competencies. That's who Mr. Kordic was. So
16 when I and my colleagues speak about certain authority and influence, we
17 mean political influence that he wielded, not actual power in his hands to
18 undertake one thing or another thing in the administrative or military
19 sense at all.
20 JUDGE SCHOMBURG: I just have a follow-up question. I'm aware
21 that you dealt with Kiseljak and the surrounding municipalities. However,
22 let's please have a look on paragraph 577 of the judgement. And please
23 accept this as a question under the heading "Right to be heard." Isn't it
24 true that it seems to be that there Mr. Blaskic and Mr. Kordic acted
25 apparently on the same level, if not -- it's referred to -- if this tape
1 is not disputed, and the intercept, Kordic saying to Mr. Blaskic: 100
2 should be killed for every one friend. There was a close link between the
3 politicians and the military.
4 MR. NAUMOVSKI: [Interpretation] I apologise. I didn't hear what
5 he said. What was the quote?
6 JUDGE SCHOMBURG: I quoted from the intercept of January 1993.
7 You can find it in paragraph 577 of the judgement.
8 MR. NAUMOVSKI: [Interpretation] Yes. I have seen that.
9 Mr. President, the situation, as far as the Defence is concerned, is quite
10 simple in this regard. The question and the date, and Mr. Smith said a
11 moment ago, who attacked whom in January 1993. Therefore, the strong
12 forces of the Bosnia-Herzegovina army, who were preparing, as has been
13 proved, were on the attack. And of course, the position of the people who
14 were within the pocket was to do anything they could. Now, what
15 Mr. Kordic and Blaskic spoke about, their conversation, and he was the
16 other side of the pocket in Kiseljak, he went to visit his father, as far
17 as I gather, is essentially - I don't know how else I can say this, and I
18 think we said this once in our response - was a joke, an unrealistic fact.
19 This never actually happened. This event never actually happened. There
20 was no VBR that was attacking, nor were there any consequences of that.
21 And so the tone of the entire conversation is one of joking. And we can
22 see that it is not a conversation between people planning to launch a
23 serious military attack. And that is what we claimed all along, and the
24 tape proved that in itself. So there were no consequences, nor did this
25 event ever take place, this shelling, I mean. It never took place.
1 JUDGE SCHOMBURG: Thank you. Judge Weinberg de Roca, please.
2 JUDGE WEINBERG DE ROCA: Thank you. I have a follow-up question
3 following Judge Guney's question. It's difficult to understand -- you and
4 your colleagues are speaking about administrative authority or influence,
5 political authority or influence, and military authority or influence.
6 And it's the submission, I understand, or I understand, at least, that
7 Mr. Kordic had political but not administrative or military authority.
8 Did this political authority mean that he had authority over the
9 paramilitary groups?
10 MR. NAUMOVSKI: [Interpretation] Absolutely not, madam, Your
11 Honour. It is true that we state that Mr. Kordic did not have
12 administrative authority, but we also claim that he didn't have any
13 military authority, and numerous witnesses have borne that out. Now, this
14 might appear to be a little illogical, but in our defence case we heard
15 testimony from the main people and assistants of General Blaskic, from his
16 first deputy, the chief of staff, several commanders in his brigade,
17 brigades under Mr. Blaskic. So it is crystal clear that Mr. Kordic did
18 not have any military authority. And similarly, no power at all - perhaps
19 power would be a good word in English - over any paramilitaries,
20 paramilitary formations. Now, the difference and distinction between
21 political and administrative authority is very vital. Let me quote an
22 example. In Busovaca there was no food, for example. That was a case in
23 point. The local authorities in Busovaca had their own mechanisms of how
24 to deal with the situation, how to collect food. And when they were not
25 able to have food supplies from normal sources, if I can use that term, or
1 from UNPROFOR, then they went to prevail upon Mr. Kordic, to ask him, as a
2 man they could believe, to wield his authority and go and see with
3 UNPROFOR, to send a telegram to Mostar, or however else, so that the food
4 could be found. And Mr. Kordic would solve the problem and the food
5 supplies would arrive in a few days' time, and the people were
6 exhilarated, but of course he wasn't able to order anyone to do this. So
7 that's what I mean, that's how he was a general type politician, if I can
8 put it that way. He had no administrative or civilian authority or
9 military authority, let alone exert an influence on any paramilitary
11 JUDGE SCHOMBURG: No more questions. And it would be once again
12 for Mr. Sayers, but I think it's fair enough. You are prepared for
13 another half an hour and then I think we should continue now for the first
14 15 minutes, up to 5.00, and then you may continue for another 15 minutes
15 after the break.
16 MR. SAYERS: If I might just follow up on the question that was
17 asked by Judge Weinberg de Roca with some specific references to the
18 actual testimony. Let me first point the Appeals Chamber's attention to
19 the slide that we've put on. This is the UNPROFOR -- sorry. This is
20 General Blaskic's chief of staff, Brigadier Franjo Nakic, who testified
21 quite unequivocally at trial that Mr. Kordic had no military role.
22 Next. Brigadier Darko Gelic was the UNPROFOR liaison officer. He
23 was asked, actually, the precise question that Judge Weinberg de Roca
24 asked: "Did Mr. Kordic have any military authority over any units of the
25 military police or any special purpose units, paramilitary units?" "No."
1 "Did you ever see Mr. Kordic give orders to Colonel Blaskic?" "No." "Did
2 you ever hear that Mr. Kordic ever tried to give orders to Mr. Blaskic or
3 influence his military decisions in any way?" "No." "Did he have any
4 authority over the Jokers, the Vitezovi, the 4th Battalion of the military
5 police?" "No."
6 But who better to know whether there was authority over the
7 military police than the commander of the military police? Let's see what
8 he had to say. He was called as a Court witness. Colonel Marinko
9 Palavra, the successor to Ljubicic. He testified he was subordinate to
10 the operative zone and to the command of the operative zone. "Is that
11 correct?" "It is." "Did you ever take orders, directions or instructions
12 from Dario Kordic ever?" "Your Honours, no, never." TR27014. "Did
13 Kordic ever try to exert military influence over the soldiers under your
14 -- military police under your command or the soldiers under Colonel
15 Blaskic's command to your knowledge?" "He absolutely never did." "As far
16 as you're aware, Kordic had no authority whatsoever over the military
17 police?" He agreed with that. The proposition was put to him that "You
18 took your orders from your superior commander who, on August 1st, was
19 Colonel Blaskic; is that so?" "That is quite so." Kordic had nothing to
20 do with the running of the units, including the military police. And if I
21 may go into private session for just one second.
22 JUDGE SCHOMBURG: Please do so.
23 [Private session]
8 [Open session]
9 MR. SAYERS: And Your Honours, that is how it was.
10 JUDGE SCHOMBURG: You may continue, please.
11 MR. SAYERS: Thank you, Your Honour. I just wanted to clean that
12 up, since there was some lack of clarity in the record on that.
13 I'd like to make three points as we draw to the close here. We've
14 got our heads down and we're headed for the finish line, I hope. Armed
15 conflict, international armed conflict, and sentencing.
16 Armed conflict. There was no armed conflict before April of 1993.
17 And how do we know that? Because the Trial Chamber told us that. We know
18 that this is very important in the Tribunal's jurisprudence because the
19 armed conflict requirement is a jurisdictional requirement for the
20 application -- for the finding of any crimes under Articles 3 or 5. Or
21 Article 2, for that matter, but there must be an international armed
22 conflict under 2. What does it mean? It means armed force between
23 states, which we don't have here, or protracted armed violence.
24 The key factual finding by the Trial Chamber here is paragraph 31
25 of the judgement. It was not until April 1993 that a generalised state of
1 armed conflict in the form of protracted violence broke out in the
2 territory of Central Bosnia between the HVO and the ABiH. The Trial
3 Chamber then confusingly and incorrectly, we would submit to the Appeals
4 Chamber, said before that there were only localised areas of conflict.
5 Within which, it said, a state of armed conflict could be said to occur.
6 But that's not possible. To be a state of armed conflict it has to be
7 protracted, and as paragraph 31 of the judgement recognises, protracted
8 armed violence did not break out anywhere in Central Bosnia until April of
10 I won't belabour the definition of protracted. We've put various
11 dictionary definitions up on the screen for you. But Kordic respectfully
12 submits that by no stretch of the imagination could the brief flare-up of
13 fighting in Novi Travnik be referred to as protracted armed violence.
14 What was it? We know what it was. The Prosecution itself has made the
15 submission that the 16th of April, 1993 attacks by the HVO were entirely
16 different to what had occurred prior to that date. To use -- and the
17 Prosecution cited the very graphic and accurate testimony of one of the
18 BritBat military witnesses, the subordinate of Lieutenant Colonel Stewart,
19 Major Watters, who actually described what had occurred before the
20 protracted armed violence broke out in April 1993 as "local punch-ups
21 between small communities in different villages." And that's exactly what
22 we had in Novi Travnik and in Busovaca in January 1993, punch-ups between
23 small communities, skirmishes. There was no jurisdiction over them.
24 And the Naletilic trial judgement has reached virtually the same
25 conclusion that we're urging to the Appeals Chamber today, and that was
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 although tensions gradually increased between the HVO and the ABiH in
2 Mostar, not in Central Bosnia, it only turned into a full-scale conflict
3 in mid-April 1993, and the Naletilic Trial Chamber specifically ruled that
4 armed conflict existed since 17th of April, 1993 in the relevant area.
5 If I may turn to international armed conflict. Our submissions on
6 this are very particular and very narrow. First, the legal consequences
7 of the characterisation of a conflict are particularly important, as the
8 Tadic appeals judgement said. Article 2 of the Statute applies only when
9 an international armed conflict exists. Which counts are affected in this
10 case? Count 8, count 12, and count 22, we would submit.
11 Now, what was the governing test of how to determine what an armed
12 conflict was before the 15th of January, 1999? We know that. It was the
13 International Court of Justice leading case of Nicaragua from the 27th of
14 June, 1986. What did that require? A high degree of control. And even
15 when the state allegedly, internationalising a conflict, had participated
16 in the financing, organisation, training, logistical matters, even when
17 the international influence resulted in the selection of military or
18 paramilitary targets by the state, even when the state participated in
19 planning the operations of the paramilitary units, even if that was
20 preponderant or decisive, that is still not enough to internationalise the
21 conflict according to the jurisprudence established by the Nicaragua case.
22 Without the foreign entity exercising effective control over the troops,
23 there was no international armed conflict. That was the law that existed
24 as of 1986.
25 This test was changed on the 15th of July, 1999, in the Tadic
1 appeals judgement where this Chamber held that, with respect, it held the
2 Nicaragua test not to be persuasive. Having found that that test was not
3 consonant with the law of state responsibility or with judicial or state
4 practice, the Appeals Chamber departed from it, and that's exactly what
5 the Naletilic trial judgement accurately observed.
6 Instead, a new test was established; overall control. What's the
7 difference? Well, the difference is that this is a much lower test. The
8 requirement of overall control is nowhere near as rigorous as the
9 requirement of effective control. And the Aleksovski appeals judgement
10 paragraph 145 specifically ruled that and stated that the overall control
11 test was a new, lower test.
12 Under the principle of nullum crimen sine lege, an offence will
13 only fall within the jurisdiction of the Tribunal if that offence was
14 recognised as a form of liability under customary international law as it
15 existed at the time the offence was committed, which here was 1992 or
16 1993, when the Nicaragua test was still in effect, six years before this
17 Chamber changed the governing law in the Tadic Appeals Chamber.
18 I might also say that the defective indictment in this case fails
19 to allege the identity of the entity assertedly exercising overall control
20 over HVO forces in Central Bosnia. As a result, similar omissions
21 resulted in the Simic trial judgement, the Trial Chamber rejecting any
22 consideration of the allegedly international nature of the conflict
23 because the indictment had not alleged the specific identity of the
24 foreign entity assertedly exercising overall control. The same result in
25 Hadzihasanovic -- not the same result but a similar result, because the
1 Prosecution was required to allege the indictment in that case to assert
2 the identity of the entity assertedly exercising overall control.
3 So our conclusion on this point is very, very simple: There was a
4 new standard, a lower standard articulated on the 15th of July, 1999. It
5 governs conduct after that date, no question about it, but not before.
6 And to conclude otherwise would violate the principle of legality.
7 And with the Appeals Chamber's permission, the Appeals Chamber
8 wants to take the break now, I'll conclude my comments very shortly
10 JUDGE SCHOMBURG: I think this is an appropriate point in time.
11 And I take it that for the purpose of your now following submissions on
12 sentence --
13 MR. SAYERS: Yes.
14 JUDGE SCHOMBURG: -- you want to tender the affidavit by Mr. Kordic
15 of 10 May 2004?
16 MR. SAYERS: Precisely so, Your Honour.
17 JUDGE SCHOMBURG: Any objections?
18 MR. FARRELL: We can make submissions at the time. No, thank you.
19 JUDGE SCHOMBURG: Admitted into evidence. And what would be the
20 exhibit number, please?
21 THE REGISTRAR: Exhibit number DAK1.
22 JUDGE SCHOMBURG: Thank you. The Appeals Chamber stays adjourned
23 until half past 5.00.
24 --- Recess taken at 5.01 p.m.
25 --- On resuming at 5.33 p.m.
1 JUDGE SCHOMBURG: Please be seated.
2 Mr. Sayers, please.
3 MR. SAYERS: Thank you very much, Your Honour. I hope to conclude
4 in about 15 minutes with the sentencing appeal arguments made by
5 Mr. Kordic.
6 The point de depart for this discussion is the finding made in
7 paragraph 854 of the judgement that Dario Kordic has offered no mitigation
8 of these offences and there is none. Kordic's position on appeal is that
9 that observation is wrong as a matter of fact. There was considerable
10 amount of mitigation evidence offered during the trial. In this Tribunal,
11 guilt and sentencing issues must be addressed simultaneously, and that's
12 what Mr. Kordic did. The mitigation evidence was simply disregarded by
13 the Trial Chamber in toto.
14 It's also legally erroneous after the Kunarac appeals judgement
15 was issued on the 12th of June, 2002. Paragraph 362 of that judgement
16 states that family circumstances are mitigating circumstances as a matter
17 of law. And the reason that that is so is because there are two things in
18 Article 24(2) of the Tribunal's Statute that must be taken into account.
19 Obviously the Trial Chamber has to take into account the gravity of the
20 offence, but also the Trial Chamber is equally obliged to take into
21 account the individual circumstances of the convicted person. Obviously
22 if the Trial Chamber failed to take into account the gravity of the
23 offence, then it would arguably have committed an error of law. The same
24 is true if it fails to take into account the family -- the individual
25 circumstances of the accused person. This is an error of law.
1 The individual circumstances of Mr. Kordic were not really
2 controverted at trial. He was the oldest of five children. His father is
3 a retired veterinarian. His mother is a retired paediatrician. She is
4 paralysed now but was not during the war in Busovaca. She was the only
5 paediatrician in Busovaca who stayed in that town throughout the conflict.
6 Mr. Kordic is a family man. He has three children. He and his wife were
7 married in 1986 in Busovaca. They lived in Busovaca throughout the war.
8 Their three children - Vladimir, Marija, and Elizabeta - were born
9 variously on the 14th of June 1987; Marija was born on the 9th of March,
10 1992; and Elizabeta on the 8th of July, 1995. This was established at
11 trial by the affidavit of Pero Kordic, the -- in the Status Conferences we
12 were requested to submit some additional family circumstances. We did so
13 without going beyond the confines of the request. The affidavit of
14 Mr. Venera Kordic has just been admitted. We've also asked the commanding
15 officer of the UN Detention Unit, Mr. Timothy McFadden, to submit a report
16 to the Appeals Chamber concerning Mr. Kordic's good behaviour throughout
17 the course of his seven-year detention and I would request -- we don't
18 have it yet, unfortunately, but I would request the permission of the
19 Appeals Chamber to receive that report into evidence once it has been
20 prepared and submitted. Thank you.
21 The law on this issue is relatively simple. The Kunarac appeals
22 judgement states specifically that individual circumstances are a
23 mitigating -- family circumstances are a mitigating factor as a matter of
24 law. The Appeals Chamber noted in that case that it is not clear why the
25 Trial Chamber --
1 THE INTERPRETER: Could the counsel please slow down for the
2 benefit of the interpreters. We cannot follow at this speed.
3 MR. SAYERS: And because it had to be considered -- [B/C/S on
4 English channel]
5 JUDGE SCHOMBURG: The channel is wrong. We're receiving B/C/S.
6 THE INTERPRETER: Microphone, Your Honour, please.
7 JUDGE SCHOMBURG: The B/C/S seems to be channel 4. We hear now
8 B/C/S. Let's give it another try.
9 MR. SAYERS: Very well, Your Honour. Can you hear me now?
10 JUDGE SCHOMBURG: Yes, in English. Thank you.
11 MR. SAYERS: Just as the Kunarac Appeals Chamber observed that it
12 was not clear why the Trial Chamber had not considered the individual
13 circumstances of the accused in that case, which was why his appeal was to
14 be partly successful, the same rationale applies to this case as a matter
15 of law.
16 I'd just like to conclude my presentation in a fairly expeditious
17 way here by going through some of the character evidence that Mr. Kordic
18 adduced at trial. He's a highly religious man. After the ABiH attack at
19 Krizancevo Selo on Christmas Eve of 1993, resulting in the deaths of
20 approximately 30 Bosnian Croats in the -- just to the north-east of Vitez,
21 Mr. Kordic attended a Christmas mass. He was the only political figure to
22 do so in the basement of the church in Vitez, and that was attested to by
23 Mr. Pranjes. That is just one example of numerous other pieces of
25 We submitted character witness and family information affidavits
1 on the 14th of July, 2000. I do not believe they're referred to anywhere
2 in the judgement. Two examples would be Mustafa Tafic and Saba Hudin Tuco
3 [phoen], two Muslims who lived in Busovaca during the war and who were
4 helped by Mr. Kordic.
5 Mr. Tafic attested to Mr. Kordic's tolerant and polite demeanour,
6 never drew distinctions between people of different ethnicity, took care
7 of all of the citizens of Busovaca equally, to the extent that it was in
8 his power to do so, interceded for non-Croats who stayed in Busovaca, gave
9 them all personal help.
10 Mrs. Tuco has known Mr. Kordic for 30 years. She grew up with
11 him, went to high school with him. She attested to his character. He
12 rallied to her defence when the SDA authorities wanted to close her
13 restaurant down during the war. He successfully kept it open. He
14 arranged transportation for her, during her complicated pregnancy, to
15 Travnik hospital.
16 This is important because Mr. Kordic, as these witnesses attested
17 and the others that I'll go into in just a second, there's moderation,
18 there's politeness, there's absence of ethnic animus, the fact that he
19 went out of his way to help everyone in Busovaca, not just Croats, during
20 the war. He assumed the mantle of responsibility in a time of chaos and
21 unrest, and this case definitely shows that he has paid the price for
22 stepping up to the plate and doing what he felt it was his duty to do.
23 What are the prospects for this man's rehabilitation? Well, his
24 speeches were positive. His message was positive. Quite apart from the
25 family circumstances, his future contributions to easing tensions and
1 contributing to rebuilding the community in Central Bosnia are certainly
2 high, as we will see.
3 We have submitted some letters that -- letters of thanks from
4 Efendi Muslija and the Muslim doctor of the Muslim hospital in Jajce,
5 Dr. Sehovic, attesting to Mr. Kordic's assistance to them during the war.
6 Niko Grubesic was a Member of Parliament of the Federation of
7 Bosnia-Herzegovina, a former mayor of the municipality of Busovaca. He's
8 known Mr. Kordic for a long time, attests to his family circumstances.
9 Never heard him express any ill-feelings, hatred or prejudice, utter a
10 pejorative comments towards members of non-Croat ethnicity.
11 And let me just pause there for a second to say this: There are
12 4.665 exhibits in this case. Where are the exhibits that contain ethnic
13 animus or pejorative comments by Mr. Kordic against supposedly the other
14 side that was being persecuted? There is a lot of characterisation of
15 what Mr. Kordic supposedly said. For example, during the press conference
16 of the 15th of April, 1993, following the execution of four of Brigadier
17 Totic's bodyguards and his abduction by ABiH forces in the municipality of
18 Zenica -- this is part of the policy of abductions by political and
19 military leaders preceding any attack that was attested to at trial as
20 being a standard ABiH tactic, and a pretty effective one it must be
22 Well, we didn't really need any characterisations of what he
23 supposedly said because we have what he said. Exhibit Z665. And frankly,
24 when you take a look, for example, at Witness AK, I believe, AQ who tried
25 to -- who tried to -- to say what Mr. Kordic supposedly said, this
1 testimony was rejected by the Trial Chamber because we know exactly what
2 Mr. Kordic said. We have a transcript of what he said, and there it is.
3 And in the time of the utmost tension, the -- just a -- before a war was
4 about to break out, did we see Mr. Kordic, like Julius Streicher, pounding
5 the table, giving a belligerent bellicose speech about the evil, the
6 embodiment of evil on the other side? We do not. And that is a fact.
7 His speeches were not inflammatory. There was no incitement to violence,
8 as Mr. Grubesic said.
9 Zoran Maric described Mr. Kordic as a very correct, very educated
10 man who wanted to help everyone. Did he ever express privately prejudice
11 towards members of any other ethnic group? No. Quite the reverse. He
12 wanted to present a united front, fight for the unity of
14 Brigadier Totic, speeches were positive not negative. Srecko
15 Vucina, the head of the office of the president - actually, Mate Boban's
16 office - and described by the Prosecution as a virtually unique witness.
17 This man knew Dario Kordic. Did he ever hear Mr. Kordic say anything
18 derogatory about anybody else, including Muslims? "Knowing him as a
19 person," said Mr. Vucina, "knowing his level of education, knowing his
20 profile, his sincerity, his devotion to family, I would say it's
22 You reach your own decisions, Your Honours. You've got the text
23 of the speeches before you. You've got the testimony of the witnesses
24 before you. Is this a man who incited to violence? It is not, we would
25 submit, and there is no evidence to suggest that he was.
1 Could I have a brief private session, Your Honour, please.
2 JUDGE SCHOMBURG: Yes.
3 [Private session]
12 Page 328 redacted, private session
5 [Open session]
6 MR. SAYERS: Three final points. The evidence of Lieutenant
7 General Sir Roderick Cordy-Simpson with whom Mr. Kordic dealt. He
8 testified that he met Mr. Kordic. Kordic told him he was not a military
9 man, he had no military training or background. He was a journalist by
11 Consider this testimony from the number two person in the chain of
12 command of UNPROFOR in Kiseljak, the second highest ranking officer in all
13 of Bosnia and Herzegovina. "Did you find the views articulated by
14 Mr. Kordic regarding his concerns for his fellow Croats at any time to be
15 less than completely genuine?" And here was the answer: "I think that
16 his position was what I would have expected of someone trying to look
17 after his own population in the middle of what was a very evil civil war
18 that was raging."
19 And that's a very telling comment from the number two ranking
20 officer in UNPROFOR. Who better to know than the number two officer in
21 the main military organisation of the European Community in that -- in
22 those difficult times?
23 So in conclusion, the mitigating evidence was that Mr. Kordic was
24 religious himself, came from a religious family. He demonstrated no
25 prejudice towards his -- the Muslim community in Busovaca. He was
1 personally courageous. His personality was, to use the phraseology of the
2 judgement, footnote 870, not vehement.
3 And this is especially the case in view of the Trial Chamber's
4 findings, and the Appeals Chamber must consider these findings carefully
5 in view of the questions the Bench has been asking us, that he was not a
6 commander, not a superior. He had no power to prevent crimes, no power to
7 punish crimes; he lacked effective control. He was a family man with no
8 criminal record, and that must be considered in mitigation under the
9 Kunarac appeals judgement.
10 Thank you very much.
11 JUDGE SCHOMBURG: I thank you for your submission, and I take it
12 that you will show to the Prosecution all the supporting slides you -- of
13 course it's no evidence, but you want to hand over to the Bench that the
14 Prosecution carefully can have a view on it, whether there may be any
16 MR. SAYERS: There are no secrets here, Your Honour. The
17 Prosecution has everything that we've showed to the Appeals Chamber
18 today. Everything.
19 JUDGE SCHOMBURG: Okay. Then we can expect by Wednesday an
20 informed submission by the Prosecution on these parts. Thank you.
21 I know it's now twenty-five minutes later than expected, but it's
22 abundantly clear this additional time will be allocated to the Prosecution
24 MR. FARRELL: Thank you for that, Mr. President.
25 If I may begin, Your Honours. The appellants in their very
1 capable submissions throughout the -- throughout the whole day today have
2 painted a picture in which, as I think my learned friend said once, the
3 whole case comes down to a two-hour meeting on one afternoon in Central
4 Bosnia. It's the Prosecution's position that the judgement in this case
5 starts at the beginning in May of 1992, and there's ample evidence to show
6 the role that the appellant played from May of 1992 right through until
7 the end of the time period for which he was convicted.
8 The meeting that was referred to will be discussed by myself and
9 will be, I'm sure, referred to by my colleagues to the extent that it's
10 necessary, but the case is, I'm sure you're aware of, you spent hours
11 working on the judgement, deals with the role of a political leader who
12 was very much involved at the political level at the high-ranking level
13 and at the operational level, and the Prosecution's submission is that you
14 cannot look at this case except through a larger lens and not the
15 microscopic one that has been presented to you today.
16 I will commence the Prosecution's submissions, and I will deal
17 with some of the submissions of Mr. Sayers dealing with the procedural
18 matters, the access matters, disclosure, Rule 68, the indictment issues,
19 and then some matters related to Witness AT. If possible, and I will try
20 to finish my portion before we finish today, Your Honours, then there will
21 be other members of the Prosecution team, with your leave, who will make
22 the remaining submissions in relation to Mr. Kordic's appeal. Thank you.
23 If I could just begin by speaking about the access issue and one
24 of the issues related to disclosure. The briefs are quite full, as I'm
25 sure you're aware, so I'll try and deal with the issues that were just
1 dealt with today or address the ones that I can try and assist the Court
3 First of all, the general allegation made at the beginning - or
4 submission, I'm sorry - by my learned friend was that access was denied to
5 all the closed-session material and that it was because of the
6 Prosecution's guarantee, for Rule 68 purpose, that he was denied. Well,
7 he was limited in his access to two of the Lasva Valley cases and the
8 Court did order that the Prosecution should proceed to give closed-session
9 material. One of those was the Blaskic case, as you're aware of, and
10 that's the subject matter of the Rule 68 allegation. But it's not fair to
11 say that it was the Prosecution's fault that he did not receive the
12 remaining material. The other material was disclosed to him by court
13 order, one in relation to Kupreskic, Aleksovski, and the others, and it
14 was the Trial Chamber who decided that the Trial Chamber would have to
15 send the matter back to the original Trial Chamber to make a ruling as to
16 whether or not they would get access to closed session. Those Trial
17 Chambers, the Trial Chamber that was in the Kupreskic case or the other
18 Lasva Valley cases, was the final arbiter on whether or not they would get
19 those. It's not the Prosecution's responsibility in light of the access,
20 certainly in light of the Rule 68.
21 THE INTERPRETER: Could counsel please slow down. Thank you.
22 MR. FARRELL: Thank you.
23 The second point I wanted to make about the closed session is that
24 throughout the brief, and to a certain extent throughout the submissions,
25 the focus is always on the Prosecution's failure to provide the evidence
1 or on the Prosecution's failure to ensure access to closed session.
2 Please keep in mind that the law at the time regarding access to closed
3 session was very different than the law that applies now, and the
4 obligation is on my learned friend to point out the error by the Trial
5 Chamber. And as an Appellate Court, you're fully aware that that's the
6 ultimate goal here, is to determine whether the Trial Chamber erred and
7 what the impact of that error is.
8 Regarding the disclosure of Witness AT, the appellant said that
9 he was disclosed just at the end of trial and he testified one week before
10 the end of trial. Once again, the insinuation was that there was some
11 attempt by the Prosecution or some action by the Prosecution which
12 resulted in a violation of some disclosure obligation. I simply ask you
13 to take note of the Trial Chamber's ruling on this. The Trial Chamber
14 decided, on September the 26th, 2000, that in fact, and I'm -- well, I'll
15 refer -- it's in closed session, so I'm not going into closed session.
16 I'll simply ask you to look at the Trial Chamber's decision on the motion
17 to call Witness AT on the 26th of September, 2000, in which the
18 explanation that was provided by the Prosecution as to when the decision
19 was made and why the decision was made to call Witness AT, that was
20 completely accepted by the Trial Chamber, with no objection at the time by
21 counsel for Kordic. To come now and say that somehow there was some
22 disclosure violation when there was no allegation at the time the Court
23 gave the explanation.
24 Further, the Court decided at the time that it would put off the
25 hearing of Witness AT until the end of the case so that they had two
1 months in which to prepare their submissions. And in fact, I'd ask you to
2 take note of the Trial Chamber's comments on the 26th of September, in
3 which they point out that counsel for Mr. Kordic frankly and properly
4 conceded on behalf of Mr. Kordic that he cannot object to the Prosecution
5 calling this witness and that he submits that the evidence should be
6 called in rebuttal. The Trial Chamber agreed and added that this would be
7 an advantage of curing any alleged unfairness. Once again, I'd ask that
8 the Court please keep in mind the decisions of the Trial Chamber when
9 dealing with these allegations.
10 Those were the two aspects of the disclosure, belated disclosure,
11 that was mentioned today. The rest are dealt with in the brief.
12 If I can now turn to the Rule 68 allegation. As this Court is
13 fully aware, in the Krstic decision, there's two steps. The first is that
14 there must be a demonstration of a violation, and the second is that there
15 must be material prejudice that was suffered.
16 The Court in the Krstic case and the Appeals Chamber in the
17 Akayesu case has held that the remedy is one that can -- if there is a
18 violation, the remedy is to try and put the evidence that was not
19 admitted, or excluded, in fact, by the allegation of Prosecution
20 violation, to bring that through admission of additional evidence in the
21 Court. That's quite clear. It's in the Krstic decision. And in the
22 Krstic decision, the Defence was able to take advantage of that. And
23 despite the fact that they both at the same time made a Rule 68 allegation
24 and a 115 allegation, the material was at least before the Court so it
25 could properly assess whether the evidence was exculpatory.
1 I point out as a matter of procedure that you do not have the
2 Blaskic material before you. I quite frankly don't know how you're going
3 to assess whether it's exculpatory and I don't know how you're going to
4 assess it in light of the total nature of the testimony, all of the
5 testimony, to determine whether or not the passages relied upon by my
6 learned friend are accurate and whether they're clarified at any point in
7 time throughout the testimony. That was the Prosecution's submission in
8 the filing, that these allegations cannot be made in a vacuum. And I'm
9 not talking about the filing of the material as 115 evidence. That's
10 clearly not been done. In fact, my learned friend, when asked by the
11 Pre-Appeal Judge whether he wanted to rely on it and file any additional
12 material, said that he was not.
13 If you recall the filing that Mr. Kordic did immediately after
14 Mr. Cerkez filed his 115 motion, you will recall that Mr. Kordic took a
15 somewhat different position on the additional evidence than Mr. Cerkez.
16 In fact, he opposed some of Mr. Cerkez's additional evidence. But in one
17 of his filings, he indicated that he reserved the right to submit
18 evidence, and particularly the closed-session testimony of Colonel Blaskic
19 at the time, if that evidence was such that it was crucial to the case and
20 if it could affect the verdict. In fairness to the Defence, they relied
21 on the wording of Rule 115. Once they got the closed-session testimony of
22 Colonel Blaskic - and it's fair; they got it in the appellate
23 proceedings. We provide it to them - they did not attempt to submit that
24 evidence before you. And in fact, they didn't attempt to put it before
25 you for the purposes of the Rule 68 allegation. And in my respectful
1 submission, without putting that material before you, you're in no
2 position to decide whether or not that evidence actually constitutes Rule
4 Secondly, as we've said in our filing, the Defence has to put that
5 forward at least, in our submission, on a prima facie basis that it's
6 truthful. In other words, this is evidence they would put to a witness
7 for the purpose of cross-examination or this is evidence that they would
8 call themselves.
9 There's something, with respect, something irrational about the
10 approach. If this is such crucial evidence that is so clearly, on its
11 face, exculpatory, and is so obviously exculpatory that would demonstrate
12 that Mr. Kordic has no control in Central Bosnia, why wasn't it filed? If
13 this evidence is so crucial that witnesses would have been cross-examined
14 differently, it's respectfully submitted that the failure to seek to admit
15 it, at least to file it with the Court, or to demonstrate quite clearly
16 what witnesses would have been cross-examined differently and how that
17 could have affected the verdict, without that showing, in my respectful
18 submission, though the Court may render a decision on the scope of Rule
19 68, there is no basis for a remedy, as there's clearly no material
20 prejudice. And I note that in relation to both the testimony of -- the
21 testimony that was referred to today, and I'll leave it to the submissions
22 of today, which was the Blaskic testimony.
23 The appellant referred to two of the Prosecution's submissions in
24 relation to the testimony. The first was the Prosecution's submission in
25 the Blaskic appeal that the Prosecution put forward Blaskic's testimony
1 that Kordic was not in the military chain of command. Just to make it
2 clear -- and I think I appreciate my friend's position that this
3 demonstrates that the Prosecution knew about this testimony at the time
4 and should have disclosed it. I think that's his position. But in his
5 brief, he also puts it forward as if it's the Prosecution's position as to
6 the truth of the contents of the testimony. I just want to make it clear
7 that the Prosecution does not take the position that Blaskic's testimony
8 is the truth. It does not take the position that Blaskic's claims that
9 Kordic was not involved and had no role in the military operations is
10 the true state of affairs. And it was put forward in the Prosecution's
11 submissions to show that Colonel Blaskic has specifically changed his
12 position on appeal, at least to the extent that his filings and his
13 submissions and his additional evidence has changed his position on
14 appeal, in light of the fact that he never testified to that.
15 I note that if this evidence was to be admitted as additional
16 evidence, if there was an application, it would have been the
17 Prosecution's position, as we've set out, that he should be called as a
18 witness and he should testify as to the propositions for which the Defence
19 is alleging his evidence stands for.
20 In the Kupreskic appeal, there was a paragraph put forward with
21 respect to the Prosecution's submissions regarding AT's knowledge or his
22 awareness of the nature and content of the political meeting. Those
23 submissions were made in the context of the knowledge of Vlatko Kupreskic
24 and whether Vlatko Kupreskic was in the chain of command, the
25 political or the military hierarchy, and that in the preceding paragraph
1 there's a discussion about how there were political and military
2 hierarchical structures where information, orders, and assignments were
3 handed out, and that the point was that obviously Witness AT, who was not
4 at the meeting, would not be in a position and would not be privy to the
5 specific nature and contents of that political meeting. But that doesn't
6 preclude the Kordic Trial Chamber or this Court from accepting the
7 inference that the political meeting authorised the orders that came out
8 of the military meeting.
9 I'd next like to deal with the submissions that the violation was
10 deliberate. It may just be the nature of the allegation, I think - and I
11 stand to be corrected, of course, by my learned friend - that when the use
12 of the term "deliberate" was made in the submissions, it was made in the
13 sense that there was a conscious decision not to disclose Blaskic's
14 closed-session testimony, and that is the position. It's not that there
15 was a deliberate and intentional decision to withhold evidence which the
16 Prosecution knew to be exculpatory. There is a difference, and I want to
17 make it clear that it was deliberately withheld because there was a view
18 that it wasn't exculpatory, not that the Prosecution was acting in bad
19 faith and deliberately intending to withhold it in the hopes of obtaining
20 a conviction.
21 The Prosecution at trial was of the view that this could not
22 constitute Rule 68 evidence, in light of the number of factors which are
23 set out in the annex to the Prosecution's filing and in relation to -- and
24 set out in the Prosecution's submissions.
25 The issue for this Court, in my respectful submission, is not
1 to -- well, it is to actually assess and decide on the issue of
2 credibility. To what extent can credibility affect the obligation of the
3 Prosecution under Rule 68? Is there ever a circumstance where the
4 evidence is so unbelievable or, to accept the standard under Rule 115, not
5 reasonably capable of belief that it would not be unacceptable for the
6 Prosecution to not disclose it? I think it's fair to say that in the
7 majority of cases, credibility is a matter to be left for the Bench. It's
8 a matter to be left for the Judges, and whether the Prosecution generally
9 thinks it's credible or not, that's a matter for the Bench if the evidence
10 is called. But the issue in this case is whether in the circumstances, as
11 set out in the Prosecution's brief, it was unreasonable in these
12 circumstances to consider that that was a factor in the determination of
13 Rule 68.
14 It also must be remembered it was a number of years ago these
15 assessments were being made. The law has developed, and quite rightly, in
16 this area, but at the time it was being developed there was some
17 uncertainty. There were very few decisions with respect to Rule 68 at the
18 time. It doesn't necessarily justify it if it was -- if it should have
19 been disclosed, but it does demonstrate that there was -- there wasn't
20 some clear guidance at that time. And it was also at a time where there
21 were many people working on it and different approaches from different
22 systems. I'm not particularly familiar with the civil law system, but an
23 accused or a co-accused is, as I understand it, not considered a witness
24 in relation to a civil law system, so the approach at the time was maybe
25 somewhat unclear.
12 Blank page inserted to ensure pagination corresponds between the French and
13 English transcripts.
1 But the Rule, Rule 68, does indicate that the language says
2 evidence or information. So to that extent, if that's the Court -- and if
3 the Court may well decide that credibility is not a factor for the
4 Prosecution to take into consideration, then we'll accept that the -- the
5 decision is that it should have been disclosed.
6 There were two other aspects in relation to this deliberate
7 allegation. I think I've characterised my learned friend's position
8 correctly, and I've certainly tried to make clear our understanding of
9 what the position is in relation to the deliberate nature or the conscious
10 and intentional decision not to disclose because the Prosecution didn't
11 consider it to fall under Rule 68, but there were two other examples. One
12 was referred to today. It was in relation to Witness AO, and it was
13 referred to by my learned friend in his submissions on a violation in
14 relation to Rule 68. I simply ask that you note the Prosecution's
15 submission in its brief and the comments made by the senior trial attorney
16 in the transcripts. They're in private session, so I won't go into them,
17 I'll just inform you of them. At page 27143 of the -- of the transcripts
18 wherein the Prosecution sets out the fact that it was the Prosecution,
19 after Witness AO had testified, that actually asked that further searches
20 be done in relation to this witness, and then when those further searches
21 brought up additional information, it was disclosed to the Defence
22 immediately afterwards, and then the Court ruled on the issue and actually
23 excluded the testimony of Witness AO because Witness AO declined to come
24 back for further cross-examination after the evidence had been given to
25 the Defence and they sought to cross-examine him.
1 In my respectful submission, this actually demonstrates compliance
2 by the Prosecution, diligent efforts, and the fact that the Trial Chamber
3 took specific steps to ensure there was no prejudice.
4 The last example I would like to refer you to is an example
5 referred to in passing in the appellant's brief. It relates to a witness
6 named EE. For those of you familiar with the Kupreskic case, Witness EE
7 was a witness in the Kupreskic case, a victim, and who testified in closed
8 session, so at one point in time I will have to go into private session so
9 as not to reveal the contents of a discussion that took place during the
10 Kordic trial.
11 Witness EE was the witness who testified about the participation
12 of AT in the attack on Ahmici, and Witness EE was evidence that the
13 Defence asked for for the purpose of cross-examining Witness AT. In the
14 Defence's view, they thought that this evidence could be used to discredit
15 Witness AT when he testified by asking him about the evidence that was
16 accepted by the Kupreskic Trial Chamber.
17 On October 13, 2000 - this is after the Court had ordered that
18 Witness AT be called but still six weeks before he was called - the Trial
19 Chamber ruled that they could not disclose Witness EE's testimony to the
20 Defence. Though Witness EE's testimony would clearly be relevant to the
21 testimony of AT, the Trial Chamber said that it could not disclose it
22 because Witness EE had refused to agree and provide consent to the
23 disclosure of the testimony. So the Trial Chamber denied the motion for
24 access to Witness EE's testimony and told the Defence that they would have
25 to proceed with the cross-examination of AT without it.
1 Now, I'd like to just go into private session, if I may, at this
2 point in time.
3 JUDGE SCHOMBURG: Please do so.
4 [Private session]
12 Page 344 redacted, private session
10 [Open session]
11 JUDGE SCHOMBURG: You may continue.
12 MR. FARRELL: Thank you, Your Honour.
13 I simply wanted to make this point to make it clear that when
14 you're looking at the obligations of the Prosecution and the disclosure in
15 this case, that this exhibits the fair and professional conduct of the
16 Prosecution to guarantee the fairness of the trial. And this also was in
17 relation to Witness AT, the witness who the Prosecution called in relation
18 to the meeting, as you know, in which the Prosecution took steps to ensure
19 that the Defence had ample material by which to cross-examine.
20 If I may, I'll move on to the indictment issues. Once again, in
21 my respectful submission, the starting point is first of all whether or
22 not there was a complaint at trial on the indictment; and secondly, if
23 there was a decision as a result of that complaint, whether that decision
24 was in error. That's the starting point and my submission for this
1 Despite the submissions by my learned colleagues, they have not
2 attempted to demonstrate that the Trial Chamber was wrong in its ultimate
3 decision to not have the amended indictment provide further particulars,
4 and that decision arose out of a hearing on the 16th of February, 1999.
5 And I won't read you, but I'll paraphrase that what Judge May said was
6 that the Defence arguments do have or may have more force the closer you
7 get to trial, and that the Prosecution should consider including in the
8 pre-trial brief securing the various counts and tying them to the
9 allegations. Counsel for the Defence, Mr. Geneson indicates -- he
10 indicates to the Court that he appreciates that the Trial Chamber has
11 indicated an interest and a direction to the Prosecution to resolve some
12 of these vagueness issues, and then says: "We appreciate that."
13 He does state that until the pre-trial brief is filed, they're
14 still handicapped because of the fact that they still are basing the
15 preparation of their case on the indictment and not the pre-trial brief,
16 but he says that handicap remains until the pre-trial brief is filed.
17 There was no subsequent motion after receipt of the pre-trial
18 brief for further particulars, as far as I am aware.
19 To deal with the notice of the mode of liability, I think it was
20 Mr. -- I may be wrong. I'm not sure if there was Mr. Sayers or Mr. Smith,
21 but one of my learned colleagues indicated that -- raised the issue
22 whether the mode of liability itself -- there was notice of the mode of
23 liability, that being common criminal plan.
24 There is language throughout the indictment which comments on the
25 fact that Mr. Kordic was acting with others and he was acting with others
1 in both the political, military campaign, but also in relation to the
2 underlying counts in the indictment. He refers to paragraph 26 of the
3 indictment and notes that though this may contain some inkling of the
4 third form of joint criminal enterprise, it's insufficient.
5 In my respectful submission, it's actually quite remarkable that,
6 at a time when the Tadic Appeals Chamber had not come out and where there
7 had not been a determination of the exact wording needed for notice, that
8 the Prosecution, in fact, uses the words "acting together" and "acting
9 jointly," and in paragraph 26, speaks about the acts of Mr. Kordic and the
10 fact that "he was aware of and had every reason to know of the dangers,
11 abuses, and consequences of the campaign's policies and objectives and the
12 courses of conduct that he and others set in motion."
13 It then goes on and lists the actions that would follow and says
14 that they were fully foreseeable. In my respectful submission, that's
15 fairly close in terms of JCE 3, when there wasn't a particular formulation
16 of wording of the JCE that could be included in the indictment. In my
17 respectful submission, the early decisions of Tadic and others that talk
18 about acting together are clear support for that form of liability.
19 But when the pre-trial brief was disclosed on March 25th, it's
20 much more extensive in terms of providing notice of the mode of
21 liability. I'd ask you to look through paragraphs 24. I won't take you
22 through the pre-trial brief, but paragraph 24, paragraph 118, paragraph
23 119, and paragraph 120. In my submission, those paragraphs of the
24 pre-trial brief clearly put the accused on notice that the mode of
25 liability has been charged. And in fact, in paragraph 119, the Furundzija
1 judgement is quoted in the pre-trial brief, commenting on the recognition
2 of the notion of common design and joint criminal enterprise. It further
3 states that "is a knowing participant in a common plan or design," and
4 that, therefore, "liability is incurred for all acts that flow from a
5 plan, irrespective of whether he was involved in the act."
6 They cite from the Celebici Trial Chamber judgement, where it
7 refers to common plan or design where members of a group are acting with
8 common criminal purpose. It's clear that the pre-trial brief, combined
9 with the indictment, charged common criminal plan and joint criminal
11 It's interesting that in the Defence pre-trial brief -- in this
12 case, the Defence opted to file a pre-trial brief before the trial
13 started, as was their right, and they filed a pre-trial brief about a week
14 before the trial started. And in the Defence brief before the trial
15 starts, they have legal submissions on the forms of co-perpetration, the
16 forms of co-principles, what constitutes indirect responsibility, and
17 challenges the common criminal plan, or this form is vicarious liability.
18 It's quite clear before the trial started that everyone was operating from
19 the same basis.
20 There was a comment by one of my learned friends about the lack of
21 notice of victims. There is also an acknowledgement of the sheer scale of
22 this case. To list all the victims would be essentially to list most of
23 the witnesses, which you find in annex 3, I think it is, to the pre-trial
24 brief. Annex 3 to the pre-trial brief sets out a page of material which
25 lists the accused, the count, the location, the dates, and then every
1 single location and every witness that will testify on that location.
2 Now, it doesn't specify it, quite frankly, as victims, but it's quite
3 clear when you look at them that a number of these are victims of the
4 crimes that took place.
5 There is the question of notice of the membership in a JCE
6 specific to the appellant, and the indictment speaks about the Bosnian
7 Croat leadership and lists them as members of the HDZ, the Herceg-Bosna
8 community and the HVO. There's no doubt that the HVO included Colonel
9 Blaskic at the time. You will recall that there was actually an original
10 indictment, and in that original indictment Colonel Blaskic was severed
11 because he was already in the Tribunal's custody and started his trial
12 before Mr. Kordic arrived, and if you look at the original indictment,
13 which is on the record, it charges Blaskic and Kordic jointly with the
14 unlawful attacks. It charges Kordic and Blaskic with planning and
15 executing a systematic campaign. It charges Blaskic, Kordic, and Cerkez
16 in the unlawful attacks and destruction in Vitez municipality conducted by
17 HVO forces under Cerkez. It talks about HVO forces under the direction of
18 Kordic and Blaskic arresting and detaining, some of them through the Vitez
19 Brigade and Mario Cerkez. In the pre-trial brief it lists that the
20 members of the group include the leading members of the Presidency.
21 That's paragraph 65 of the pre-trial brief.
22 In the Defence pre-trial brief filed on April 6th, there is a
23 discussion as to an explanation of the Herceg-Bosna community and its
24 membership. There's also a discussion about the distribution of power
25 between the president, the vice-president, the HVO and their relationship.
1 There is an organisational scheme of the Croatian Community of
2 Herceg-Bosna after the establishment of the HVO, and there's a report by
3 the president, Mate Boban, of Herceg-Bosna, regarding Bosnia and
4 Herzegovina from 1991 to 1993. In my submission, there can be no doubt
5 that Mr. Kordic knew who the senior members and Bosnian Croat leaders were
6 in Herceg-Bosna, in the HDZ, and in the HVO.
7 And lastly, you may not be aware of this, but when the original
8 indictment was filed, there was the original indictment, the supporting
9 material, and a statement of facts. There actually was a 40-page
10 statement of facts attached to the original indictment which was then
11 refiled on March the 9th by the Prosecution with one of its filings and
12 incorporated in its pre-trial brief. So you essentially have two
13 pre-trial briefs, the one on March 25th and the one on March 9th which the
14 Defence got with the original supporting material. That statement of fact
15 sets out the key members of the -- sets out that the key members are who
16 were involved, including Kordic and Blaskic. It sets out the Herceg-Bosna
17 -- members of the Herceg-Bosna Presidency - Kordic, Valenta and Kostroman
18 - it sets out the role of Kordic as he is charged jointly with Blaskic,
19 and it sets out Mr. Kordic's de facto and de jure control.
20 Without going through all the specifics to his -- sorry, the
21 allegations putting him on notice of his participation in the JCE, there
22 is the original indictment which sets out the specific role in paragraphs
23 9, 10, 24, and 40. There's a listing of the actions by which he
24 participated in paragraph 10, which includes negotiating cease-fires,
25 issuing orders of a military nature, authorising travel and movement,
1 negotiating the passage of convoys. Then there's the original indictment
2 which the Defence got which actually specifies the planning, execution, or
3 direction of Kordic and Blaskic. Then there's the statement of facts.
4 Without going through them all, I'd ask you, if it will assist the
5 Court, that in the statement of facts which they received with the
6 original material and which was incorporated as part of the record, it
7 lists in paragraph 8 the key members of Herceg-Bosna, including Kordic and
8 Blaskic. It lists the other members who were charged in the indictment;
9 Kordic, Blaskic, Cerkez, Santic, Skopljak, and Aleksovski. It lists a
10 number of paragraphs of the de facto power and gives examples of Kordic's
11 ability to exercise that de facto power. Interestingly, it includes the
12 October 1992 incident in Novi Travnik. It lists a number of times that
13 Blaskic gives orders. It lists the time when Blaskic negotiated the
14 release of three detained Muslim girls. Has three or four allegations
15 regarding April, and it lists Blaskic's participation in the Convoy of Joy
16 in June 1993 when the soldiers present would not release the convoy
17 without orders from Kordic.
18 And lastly, in the pre-trial brief, the Prosecution attached annex
19 1, and annex 1 is a chronology of every single day, date, location, event,
20 fact or event, and source, and it lists the -- all the evidence of the
21 participation of Kordic and Cerkez. This annex is the annex of the
22 evidence relating to their participation. I think it's somewhere in the
23 region of 56 pages long and somewhere in the range of 600 entries.
24 In my respectful submission, there was ample evidence putting the
25 appellant on notice, either in the indictment itself or, as recognised by
1 the Kupreskic Appeals Chamber, through the other means by which notice can
2 be provided.
3 I just wanted to make a few submissions on the allegation that the
4 case was a moving target for the Defence. First of all, they allege that
5 the meeting on April the 15th is a material fact, material fact in the
6 sense that it would be something that should have been listed in the
7 indictment. The Prosecution's submission, without going through all the
8 material I have prepared, is that the -- a meeting is not a material fact.
9 What the indictment must do for a material fact is set out the role and
10 participation to put him on notice. There were other meetings that took
11 place. There was the meeting in Novi Travnik when he and Blaskic issued
12 the order leading military operations. There was a meeting with Colonel
13 Duncan where civilians would not move except for on the express orders of
14 Kordic. There was a meeting, or at least a communication, in Kiseljak
15 where Blaskic reports that he had informed the leadership of the HZ HB of
16 the actions taking place in Kiseljak. I could probably list about 10 or
17 15 examples where the Court found certain meetings to take place, meetings
18 of the direct involvement and participation of Mr. Kordic, and many of
19 them referred to and accepted by the Trial Chamber subsequently in its
20 judgement. It's respectfully submitted that every meeting that took place
21 that involved his direct participation in some sort of either military or
22 political action that resulted in the -- well, the allegations put forward
23 by the Prosecution in the indictment, the indictment would essentially
24 become the pre-trial brief.
25 I'd also note that when Witness AT was called, when there was a
1 motion to bring Witness AT on September 25th, the Defence for Mr. Cerkez
2 actually raised the fact that this was a material fact. During the
3 submission, counsel for Cerkez said: This evidence by Witness AT about
4 this meeting, it's a material fact and should have been in the indictment.
5 Judge May disagreed and said: No, this is a matter of evidence.
6 At that hearing on the 25th, when the Defence made their
7 submissions, counsel for Kordic did not join in the submissions of counsel
8 for Cerkez. Counsel for Kordic did not take the position that it was a
9 material fact. In its subsequent written opposition to the Prosecution's
10 rebuttal evidence, they did not take the position that it was a material
11 fact which required it to be in the indictment.
12 The appellant has indicated in his submission that the evidence of
13 Witness AT represents a change in the Prosecution case from 7(3) to a
14 7(1), a shift from vicarious liability to an involvement in the direct
15 operations and planning on the morning of the 15th. I just have a few
16 comments in that regard.
17 First of all, I note that the Rule 98 bis, as it's called
18 now, the motion for acquittal, I think it was called back then, filed on
19 behalf of Dario Kordic on March 17th, 2000, never claimed that it was
20 solely a 7(3) case. In fact, there was 130 pages of submissions on the
21 elements of liability under 7(1). The Defence identifies the elements of
22 joint criminal enterprise and common purpose, because at this point in
23 time the Tadic Appeals Chamber decision had been rendered. And the motion
24 spends 90 pages setting out the Defence position on the facts related to
25 these forms of liability under 7(1). It doesn't appear that the Defence
1 perceived it as a 7(3) case at the time.
2 The Trial Chamber's decision on the motion for acquittal, it's
3 correct what my learned colleagues have -- the reference to the Trial
4 Chamber decision on April 6th regarding the half-time decision, the
5 decision on the motion to acquit, it is true that the Trial Chamber held
6 that the evidence was sufficient to show that he was part of the
7 high-level Herceg-Bosna community, but the Trial Chamber also stated that
8 there was evidence of his direct involvement in nine municipalities. And
9 the Trial Chamber stated to the Defence that they were not expected, not
10 required and not expected to call evidence on the other 22 municipalities,
11 that they would have to deal with the nine.
12 Now, those nine municipalities and the evidence which was
13 presented at the halfway time demonstrate quite clearly that Mr. Kordic
14 was directly involved. It's not a 7(3) case or a vicarious liability
15 case. It's a 7(1) case based on common criminal plan.
16 He indicates that this was essentially the sole meeting which ties
17 Dario Kordic into the direct activity on the ground. Well, in fact, the
18 Trial Chamber found many other instances where there was direct
20 On the night of April 16, 1993, Dario Kordic's meeting with
21 Kraljevic, the commander of Vitezovi, just outside Vitez at the Vitezovi
22 headquarters, and the Trial Chamber finds that they're looking over a
23 piece of paper with a map drawn on it, discussing what needs to be done.
24 There's a finding that he was leading military operations in Novi Travnik
25 in 1992. There's a finding that he was leading military operations in
1 Novi Travnik in 1992. There's a finding regarding his role in relation to
2 the transport of weapons and operations. That's at paragraph 553.
3 There's a finding of a report on November 1992 about the arrest of the HVO
4 military police in Kruscica and the presence of Kordic at the Travnik HVO
5 headquarters, where the decision was made to launch an operation to
6 release the patrol.
7 It's clear that this was not a 7(3) case or a vicarious
8 liability. It was a case of his direct involvement as a planner, as an
9 orderer, as an instigator, but actually as someone who is the prime mover
10 in a common criminal plan in Central Bosnia.
11 Now, my learned friend may respond that: Well, that's his
12 definition of vicarious liability. He's not the one on the ground that's
13 getting his hands dirty. He's not the one that's committing the crimes.
14 Well, the planning of the meeting on April the 15th is not Dario
15 Kordic on the ground committing the crimes. The planning on April 15th,
16 which is not a new case by the Prosecution but just one more piece of
17 evidence of his role in planning, instigating, or ordering.
18 If I can now turn to the submissions in relation to Witness AT.
19 As I've indicated, contrary to my learned colleague's very forceful
20 submissions, this case does not come down to a two-hour meeting one
21 afternoon in April. This microscopic approach actually doesn't do justice
22 to a Trial Chamber's judgement which attempts to encompass acts from May
23 of 1992.
24 I've listed in my previous submissions examples of the direct
25 involvement of Mr. Kordic: Travnik, releasing prisoners. There's the
1 finding, of course, that he's involved in the joint military meetings, the
2 joint military working group. I note that these are working group
3 meetings for military. This is not a political meeting. And he's even
4 perceived by the officers there to be Blaskic's superior.
5 There's ample evidence from Busovaca, from Central Bosnia, from
6 Kiseljak, of his direct involvement over an extensive period of time.
7 This case is not about one meeting. In fact, the Court could have been --
8 could have easily convicted Mr. Kordic without AT's evidence. There's
9 often cases where members at the high-ranking -- where you don't have,
10 because of the fact that insiders don't come forward or because you don't
11 have the evidence linking, directly linking a high-ranking official, where
12 the only inference to be drawn on circumstantial evidence is that they
13 were involved in a mode of participation which results in their criminal
14 liability. In fact, AT's evidence actually corroborates the rest of the
15 case, as opposed to the other way around.
16 A few submissions I wish to make regarding the concept of
17 corroboration. First of all, I would note that, first of all, there's
18 no need for corroboration in the Tribunal. I think that's fairly evident.
19 Hearsay is admissible, and you can convict in this Tribunal on hearsay
20 evidence, even uncorroborated hearsay evidence.
21 I point out the decision in Kunarac where the Trial Chamber
22 convicted Mr. Kovac of the rape of Witness AB. Witness AB was a young
23 woman who, after being raped, was sold to some soldiers, and she was never
24 seen again. This is certainly a very tragic incident, but the legal
25 principle still stands, and it doesn't differ just because of the nature
1 of the evidence.
2 The Trial Chamber convicted Mr. Kovac as a result of another
3 witness explaining what AB confided in her. That witness, FWS-75, gave
4 evidence that AB confided in her as to the rape. AB did not testify.
5 There was lots of evidence which showed that Witness FWS-75 was a
6 believable witness. There was evidence which corroborated her as a
7 credible witness, but there isn't any other evidence that I could find of
8 the rape, of the actual acts or the acts for which at the time the rape
9 was -- took place.
10 In the Appeals Chamber judgement, at paragraphs 267 and 268, the
11 Appeals Chamber reaffirms it's settled jurisprudence that corroboration is
12 not legally required and that corroborative testimony only goes to weight.
13 It then refers to the fact that the appellant focused on two incidents in
14 his appeal, one being Witness 75 and Witness AB, and it refers to previous
15 testimony where it's recalled that AB confided in Witness 75 that the
16 appellant had raped her.
17 The Appeals Chamber upheld that conviction for the rape of Witness
18 AB even though it was hearsay evidence originating from another witness.
19 There's a difference of opinion between the Prosecution in the
20 submissions in the brief regarding what constitutes corroboration and the
21 submissions of the appellant. Essentially, the appellant has begun by
22 saying that corroboration has to be corroboration in the sense of a
23 material particular, a material fact, and has narrowed his focus as his
24 submission proceeded to the point where there's absolutely no
25 corroboration of the meeting on the 15th of April. With respect, there's
1 no need for corroboration of the meeting in the sense of evidence showing
2 the meeting on the 15th of April. If that was the case, we'd have
3 duplicate evidence directly implicating him, we wouldn't have
4 corroborative evidence of the witness who says that there was a meeting on
5 the 15th of April.
6 Corroborative evidence is not limited to evidence which mirrors
7 AT's evidence. Corroborative evidence is evidence which tends to convince
8 the trier of fact that a witness is telling the truth. There are
9 different types of evidence that can be corroborative, but it's not
10 limited to proof that the accused committed the crime.
11 The appellant refers to an interlocutory appeal, the Appeals
12 Chamber decision in Kordic on an interlocutory appeal on the 18th of
13 September 2000, and he was kind enough to point it out to me at the break,
14 for the proposition that corroboration has to be to a material particular
15 or a material fact. Now, even if there has to be corroboration to a
16 material fact, and that's not the Prosecution's submission, the Defence
17 position that it has to show, go right to the meeting on the 15th of April
18 does not necessarily follow. There can be many other material particulars
19 in the testimony that can be corroborated which would tend to cause this
20 Court, as did the Trial Chamber, to believe the testimony of the witness.
21 In my respectful submission, you don't have to limit it to a material
22 fact. The triers of fact have to decide on the basis of the evidence that
23 is corroborative whether it convinces you that the person is telling the
24 truth. The nature of that evidence is for the trier of fact to decide.
25 The interlocutory appeal in Kordic dealt with Rule 94 ter at the
1 time, and the focus in that case was the admission of affidavit evidence
2 to support a fact in dispute. The subject matter was whether the evidence
3 supports a fact in dispute because that was the requirement of the Rule.
4 Rule 94 says you must bring evidence which supports a fact in dispute. So
5 the focus was on what was a fact in dispute. It's not a decision as to
6 what constitutes corroborative evidence, and though it does refer to the
7 fact that there -- any evidence to support a 94 ter affidavit must be
8 focused on the facts that it's supposed to support, that's a direct
9 reading of Rule 94 ter. In my respectful submission, there was no dealing
10 by the Appeals Chamber and no submissions on the scope of corroboration
11 and whether corroboration requires corroboration of a material particular
12 or whether it can be any evidence which tends to convince the trier of
13 fact that the witness is telling the truth.
14 Without going through all the evidence, it's quite clear, in my
15 respectful submission, that, first of all, there is ample evidence that
16 shows AT is telling the truth. Secondly, there's ample evidence which is
17 corroborative of Witness AT which connects Kordic to the crimes. There's
18 the nature of the campaign itself. There's the war diary. There's the
19 meetings that I've listed, for example, in Vitezovi -- with the Vitezovi,
20 and there's the orders for the attack.
21 As I'm coming to the end of my submissions and to leave time for
22 my colleagues tomorrow, I just want to mention a few concluding comments.
23 The lying alibi defence referred to by my learned friend arose
24 from a circumstance where the Trial Chamber corrected counsel for Kordic
25 which said that AT himself had asked the Court to overlook his lies. The
1 Court says wait a minute, AT didn't ask the Court to overlook his lies,
2 and he corrects him and says it's more appropriately and more properly
3 characterised as his defence. With respect, I don't see that correction
4 by the Trial Chamber as somehow changing its understanding that AT gave a
5 false alibi to the Trial Chamber.
6 There is reference to witnesses Grubesic and Maric and others as
7 men of substance. I'd ask you to take a look at the Prosecution's
8 response, for example, to Mr. Grubesic at paragraphs 3.180 through to
9 3.185, where it lists on three separate occasions that the Trial Chamber
10 found Mr. Grubesic not capable of belief.
11 For Mr. Maric, his evidence is even more incredible, and if you
12 look at paragraph 3.194 of the Prosecution's response, Mr. Maric, who is
13 the president of Busovaca at the time of the attack, says that when his
14 town was under attack and when plans are being made to carry out
15 operations in the area, he went home at 3.00 p.m. in the afternoon. He
16 was unaware of the significant press conference by Kordic and Blaskic, his
17 political and military superior, and he never came back from his home to
18 see what the military and civilian response was in the very town that he's
19 the mayor. No one came to see him and no one communicated with him, and
20 he knew nothing about the meeting and knew nothing about it and was at
21 home for the day. Extremely -- it's highly unbelievable.
22 Lastly, in relation to Witness AT, the trial Court was fully aware
23 of the particular nature of his evidence and the difficulties involved in
24 the assessment of its reliability. The Defence was given ample
25 opportunity, and the submissions that they've made to you today were all
1 made to the Trial Chamber and were put in cross-examination to Witness
2 AT. The Court did not rely on AT exclusively and found that there was
3 corroborative evidence. They examined the witness's reasons for
4 testifying. They verified his accuracy, the consistency, and the
5 voluntary nature of his testimony. They looked at his motivation for
6 coming to testify before the Tribunal, and I recall the fact that he was
7 the one that contacted the Prosecution. There was no deal made. There
8 was no immunity given. There was, in fact, no agreement with respect to
9 AT at the time he testified, and he subsequently made submissions before
10 the Appeals Chamber to have his sentence reduced.
11 He spoke of the dangers that would come to him by testifying, but
12 he did it anyway. He didn't know what the evidence in the case was when
13 he came and testified. He hasn't been shown to have any particular
14 disagreement or complaint or axe to grind in respect to the people he
15 named, Maric and Grubesic. His evidence doesn't fit with everything that
16 the Prosecution put forward. In my respectful submission, it's not
17 something that was catered. In fact, you may not be fully aware that the
18 Prosecution was proceeding against Mr. Cerkez with respect to the death of
19 an individual named Trako, and AT explained to the Prosecution that
20 Mr. Cerkez was not liable for that, that it was another individual, and he
21 actually exculpated Mr. Cerkez, and that was accepted.
22 At the end of the day, the Trial Chamber heard Witness AT in
23 full. There was extensive cross-examination. Obviously, as an Appellate
24 Chamber, you'll be hesitant to intervene on matters related to
25 credibility, and in this case, this was a matter that was clearly heard
1 and adjudicated upon by the Trial Chamber. It's especially evidence that
2 shouldn't be interfered with, where there is significant corroboration.
3 Thank you.
4 JUDGE SCHOMBURG: Thank you, Mr. Farrell. The Appeals Chamber
5 stays -- the hearing stays adjourned until tomorrow, 9.00 sharp, in this
7 --- Whereupon the hearing adjourned at 7.03 p.m,
8 to be reconvened on Tuesday, the 18th day of May,
9 2004, at 9.00 a.m.